Appa 530/11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.530/2011 IN CRIMINAL APPEAL NO.329/2011 Dwarkanath N.More APPLICANT VS. STATE OF MAHARASHTRA RESPONDENT Mr.S.S.Kulkarni for Applicant Mr.H.J.Dedhia,APP for State CORAM: NARESH H.PATIL & MRS.MRIDULA BHATKAR,JJ. DATE-15TH JUNE,2011. P.C. . Heard. 2 This is an application for grant of bail till the hearing and final disposal of the appeal. The applicant was convicted and sentenced to suffer imprisonment for life by judgment and order dated 7/4/2011 passed by the Additional Sessions Judge,Pune. Appa 530/11 2 3 In short the prosecution case is that the applicant was married to deceased Kavita in the year 1988. They had one son and one daughter. The incident took place on 7/4/2008 . The applicant poured kerosene on Kavita. She suffered 91% burn injuries and succumbed to the injuries on 10/4/2008. 4 The evidence shows that on 7/4/2008 at 7.30 a.m. Head Constable attached to the Sasoon Hospital, Pune recorded statement of the deceased which is treated as the first dying declaration. The second statement of the deceased was recorded by the Police Sub Inspector on 8/4/2008. The first dying declaration is at Exh.26 and the second dying declaration is at Exh.41. The prosecution examined Medical Officer, Head Constable, P.S.I. and the other witnesses to prove the charge against the applicant. 5 Learned counsel for the applicant submits that there is variance between the two dying declarations. The dying declarations are not trustworthy. The deceased was not in condition to make statements which were allegedly recorded by the police officers. Learned counsel was critical of the prosecution in not requesting the Taluka Executive Magistrate Appa 530/11 3 to record the statement of the deceased in case the deceased was conscious enough to make statement. There is no motive, according to the counsel for the applicant, to commit the crime. Reliance is placed on the defence evidence of the son of the applicant who has supported the defence. Learned counsel has submitted that during the trial the applicant was on bail and, therefore, the learned counsel has requested to release the applicant on bail. 6 Learned A.P.P. submits that the prosecution has led credible evidence to connect the applicant with the crime. The evidence of P.W.1 Sopan and P.W.2 Janabai is referred by the learned A.P.P. in this regard. It is submitted that the deceased suffered 16% burn injuries on the back side which demonstrates that kerosene must have been poured from the backside on the back of the deceased. In the light of the first dying declaration, A.P.P. submits that, the guilt of the applicant is established. 7 We have gone through the record, dying declarations at Exh.26 and 41 and evidence of some prosecution witnesses which are relevant for the purpose of deciding this application. We have even perused the Appa 530/11 4 endorsement made by the Medical Officer. Prima facie it is noticed that there is variance in the dying declarations in respect of involvement of the applicant. Two dying declarations recorded on 7/4/2008 and 8/4/2008 are contrary to each other in respect of the role attributed to the applicant. There is no explanation given by the prosecution as to why the Executive Magistrate was not called for recording the statement of the deceased. Prima facie we find that the endorsement made by the Medical Officer does not refer to orientation aspect of the deceased. We do not notice any endorsement of the Medical Officer after recording of statements of the deceased was completed. The evidence of the son of the deceased supports the innocence of the applicant. The applicant was on bail during the trial. Considering all these aspects we are of the view that the applicant deserves to be released on bail. The application is allowed. The applicant be released on his furnishing bail in the sum of Rs.20,000/-(Twenty thousand) with two sureties in the like amount. Appa 530/11 5 The applicant shall not contact the prosecution witnesses. The applicant shall attend the concerned police station once in a month for six months. The applicant shall furnish particulars about his permanent residential address and telephone number. (MRS.MRIDULA BHATKAR,J.) (NARESH H.PATIL,J.)