1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.770 OF 2008 IN CRIMINAL APPEAL NO.362 OF 2007 Mohamed Aiyaaz Mohd. Rafik .. Applicant. Vs. The State of Maharashtra ..Respondent. .... Mr. P.P. Runwal for the Applicant. Mrs. V.R. Bhonsale, APP for the State. .... CORAM: SMT. RANJANA DESAI and, DR. D.Y. CHANDRACHUD, JJ. 12th August, 2008. P.C. : 1. The Applicant is original accused No.2. He was tried in the Court of the Additional Sessions Judge, Greater Bombay along with two other accused in Sessions Case No. 275 of 2003 for offence punishable under Section 302 read with 114 of the Indian Penal Code. He was sentenced to suffer rigorous imprisonment for life. The appeal filed by him has been admitted. This application for bail has been filed by him through jail. 2. The prosecution story rests on two dying declarations. 2 One dying declaration is recorded by the Special Executive Magistrate and the other dying declaration is recorded by the Investigating Officer which is treated as FIR. 3. We have heard at some length counsel appearing for the applicant. He submitted that the prosecution has not examined any doctor to establish that the deceased was in a fit condition to make a statement and therefore the dying declarations are suspect. He submitted that there is a variance in the timings of the recording of dying declarations. While the Investigating Officer has stated that the dying declaration was recorded by the Special Executive Magistrate at 10.20 p.m., the Special Executive Magistrate has stated that it was recorded at 10.45 p.m. Learned counsel submitted that it is pertinent to note that the husband of the deceased has stated in his evidence that the deceased committed suicide. Learned counsel further submitted that there is no evidence on record to suggest that there was any quarrel between the deceased and the accused. Motive is not established. According to learned counsel there is no credible evidence on record to connect the accused with the murder. In support of his submissions learned counsel placed reliance on the judgment of 3 the Supreme Court in Shaikh Rafiq v. State of Maharashtra - (2008) 3 SCC 691. He urged that in the circumstances, the applicant be released on bail. 4. Learned A.P.P. Ms. Bhonsale strenuously opposed the grant of bail. 5. In our opinion, there is prima facie evidence to establish the complicity of the accused in the murder of deceased Hanifa. Two dying declarations appear to be consistent. They cannot be rejected on the ground of variance in the timing of their recording. The variance is not so glaring as to persuade us to discard them. It is true that no doctor has been examined. However, Special Executive Magistrate Dr. Gaud has clearly stated that the deceased was in a fit and proper condition to make the statement. There is no reason for an independent witness like the Special Executive Magistrate to depose falsely that the deceased was in a fit condition to make the statement. Besides, the Special Executive Magistrate is himself a doctor. He has stated that he did not obtain written endorsement of the doctor about the condition of the deceased. He has stated that the doctor had given him oral 4 consent and since he himself is a doctor, he could assess the condition of the deceased and therefore he did not feel it necessary to take written endorsement of the doctor. Prima facie, this explanation appears to be acceptable. In our opinion, the judgment of the Supreme Court in Shaikh Rafiq's case (supra) will have to be confined to its own facts, inasmuch as in that case the Special Executive Magistrate though available was not called for recording the dying declaration. In addition to that the Investigating Officer did not obtain Medical Officer's opinion about the condition of the deceased though Medical Officer had accompanied him to the burn ward. Such are not the facts here. The said judgment will therefore have no application to the present case. In view of the above, we reject the bail application. We, however, grant liberty to the applicant to move this Court for fixing an early date of hearing of the appeal. The Application is rejected. (SMT. RANJANA DESAI, J.) (DR. D.Y. CHANDRACHUD, J.)