1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2420 of 2009 (Ranjeet s/o Bhavrao Ragde vs. The State of Maharashtra and others) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. Madhav P.Gude, Adv., for the applicant. Mr. D.R.Korde, APP, for respondent State. Mr.N.S.Ghanekar, Adv., for respondent nos. 2 to 4. ... CORAM: K.U.CHANDIWAL, J. DATE:9/9/2009 ... P.C.: 1. The brother of the deceased Smt. Rekha w/o Ashok Jagtap seeks exercise of powers under Section 439(2) Cr.P.C. as the learned Additional Sessions Judge- III, Aurangabad, in application No. 889/2009, by order dt.19.6.2009, directed respondent nos. 2, 3 and 4 to be released on bail. 2. The factual matrix as emerged is: Smt. Rekha married to Ashok. Ashok was unemployed and turned into a drunkard. It is 2 alleged he, along with his other relations, were not happy with Smt. Rekha and they wanted to eliminate her. The incident has taken place in the night at around 11 p.m. on 9.6.2009 wherein, according to the prosecution, the husband and present respondents jointly doused kerosene and ignited Smt.Rekha. She succumbed. 3. The matter basically revolves to dying declaration purportedly recorded by Head constable on 9.6.2009, to which the learned Sessions Judge, while entertaining the bail application, has given reference. 4. Counsel for the accused/respondent took me to the spot panchnama, to the statement of Ambadas, statement of other neighbours, to the above referred dying declaration and the photographs to contend that the deceased has committed suicide. The role attributed to the accused in subsequent dying declaration is after tutoring by the parents and 3 the learned Sessions Judge was justified in considering first dying declaration dt.9.6.2009, to release the accused on bail. 5. The accused were arrested on 9.4.2009 and were in P.C.R. upto 12.6.2009. On 4th Sept.,2009, chargesheet is filed. He stressed that the cumulative effect of the documents tendered by the prosecution by itself may lean to acquittal of the accused. 6. Though final report does not consist of certification of fitness or consciousness of deceased Rekha as on 9.6.2009, however, when the papers with the learned A.P.P. are perused, I find a letter dt.9.6.2009, by the same Head Constable R.T. Jadhav, addressed to Medical Officer, seeking opinion as to the fitness of Ashok Shamrao Jagtap and Smt. Rekha w/o Ashok Jagtap and there is endorsement in the margin at 2.15 a.m. "patient is conscious to give valid statement". Then allegedly R.T. Jadhav, Head Constable, 4 recorded her dying declaration. The learned Judge in paragraph No.5 of his order refers to it. It is contended that this document must be with the learned Judge. 7. The immediate subsequent dying declaration recorded by the Executive Magistrate having certification from the Medical Officer illustrates that the victim in a condensed form, has narrated the incident and events that have taken place. She indicted the accused/respondents with specific role. She states, "Yesterday since morning, husband was consuming. He doursed kerosene, brother-in-law Bhimrao, his wife Maltibai caught hold her and mother-in-law ignited with match-stick, set her on fire. Hence, she was burnt." 8. At the stage of bail, learned Judge should have borne in mind gravity of dying declaration in presence of Executive Magistrate. He should not have discussed its worth. The contentions, Accused No.3 Maltibai 5 is 75 years old and could not control the deceased is surely a surmise. The merits of both dying declarations and giving priority to former, at the stage of bail, could have been averted. Secondly, the complainant Ranjit has a grievance that Bhimrao Jagtap met him on the way on 8.7.2009, threatened him to eliminate in the same manner as to Rekha. This, in fact, is denied by Mr. Ghanekar, Counsel, saying that it is an evidence tried to be created. Such conduct of accused needs check in fetters. 9. The filing of chargesheet dt.4.9.2009 by itself will not change colour and complexion in the matter. However, it is for the accused/respondents to apply the learned Judge who will independently consider the same on its own merits. For the present, the fact remains, as on 19.6.2009, there was no adequate material before the learned Sessions Judge to grant bail to the 6 accused/respondents herein. Consequently, the order, referred above, is set aside. Heard. The accused/respondent nos. 2 to 4 to surrender upto 24th Sept.,2009. (K.U.CHANDIWAL) JUDGE ... agp/2420-09crapl