1 Appln No.902/11 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.902 of 2011 IN CRIMINAL APPEAL NO.552 of 2011 Mumtaz Shamshuddin Khan ... Applicant versus State of Maharashtra ... Respondent ... Mr. S.V. Marwadi for the applicant Smt.V.R.Bhosale APP for the respondent. CORAM : V.M.KANADE AND A.M.THIPSAY, JJ DATED : 25th August 2011 P.C. 1. Heard learned counsel appearing on behalf of the applicant and learned APP for the State. 2. The applicant is original accused no.2. She has been convicted by the trial court along with the other accused for offence punishable under section 302 r/w section 34 of the IPC. Her prosecution case in brief is that the applicant along with the other co-accused went to the house of the deceased and assaulted her. The original accused no.1 suspected that the deceased was having illicit relations with her husband. FIR was registered by the constable on the basis of statement which was given by the deceased at about 7.30 p.m on 17th September 2008. In the said 2 Appln No.902/11 statement, it was alleged that the applicant herein and the other accused entered her house, assaulted her and the accused no.1 poured kerosene and set her on fire. She was taken to the hospital and her statement was recorded by the constable at about 7.30 in the evening. According to the prosecution, one other dying declaration was recorded by Dr.Andhare (PW 5). This dying declaration admittedly, was not annexed to the charge-sheet and was produced for the first time in court when Dr.Andhare (PW 5) gave his evidence in the court. In the said dying declaration, it is stated that both the applicants herein and accused no.1 poured kerosene and set her on fire. The prosecution also examined in all 11 witnesses out of which PW 1- Lalaso Bagal and Babasaheb Jotirao Patil - PW 2 did not support the case of the prosecution when they were cross-examined. The other three witnesses are the constable who recorded the FIR which was treated as the first dying declaration, Dr.Suryakant Babar (PW 6) who performed the autopsy on the deceased and produced the postmortem notes and the Investigating Officer. The prosecution also examined one Dr.Prasad Jathar ( PW 10) since he had examined accused no.1 who had received an injury on that date in the scuffle. It was submitted that there is no material on record to show that the present applicant had a common intention, common object or was aware that the original accused no.1 would commit the act of setting the deceased on fire by pouring kerosene on her body. It is submitted that in the first statement, the deceased has nowhere stated that the applicant had also participated in the act of setting her on fire. It is submitted that the second dying declaration has been produced for the first time in the court and therefore, it is difficult to rely on the said dying declaration. 3 Appln No.902/11 3. On the other hand, learned APP appearing on behalf of the State has taken us through the judgment and order of the trial court wherein the court has taken into consideration the dying declaration which was recorded by Dr. Andhare (PW 5). It is submitted that the trial court has given cogent reasons while accepting the said dying declaration and therefore, it is submitted that this is not a fit case for grant of bail. In our view, after having perused both the dying declarations and also the evidence of the witnesses as recorded by the trial court, we are of the view that since there is a discrepancy between the statement made by the deceased before the constable and before Dr.Andhare (PW 5) regarding role of the applicant herein and secondly since the second dying declaration admittedly was not part of the documents which was supplied to the accused along with the statement of the witnesses. Thirdly, since there was no endorsement of the doctor on the said dying declaration that the patient was conscious and was in a condition to make a statement. All these circumstances create a doubt about the second dying declaration. Under these circumstances, in our view, the applicant deserves to be released on bail. 4. The applicant be released on bail on execution of P.R bond in the sum of Rs.5,000/- with one or two sureties in the like amount. Applicant shall report to the concerned police station as and when called. (V.M.KANADE, J) (A.M.THIPSAY, J)