1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2489 OF 2010 Kisanabai Badshaha Wakchaure - APPLICANT VERSUS The State of Maharashtra. - RESPONDENT ***** Mr.ST Shelke,Advocate for Applicant; Mr.SD Kaldate,APP for Respondent-State. ----- CORAM : SHRIHARI P.DAVARE,J. DATE : 17th August, 2010. PER COURT: 1) Heard Mr.Shelke, learned Counsel for the applicant and Mr.Kaldate, learned APP for State. 2) This is an application preferred by the applicant, seeking bail in connection with CR No.I-23/2010 registered at Akole Tq. police station for the offences punishable under Sections 302 r/w Section 34 of Indian Penal Code, since the applicant herein was reportedly arrested thereunder on 20th March, 2010 and presently, she is under judicial custody. 2 3) It appears that the offence has been registered on 19th March, 2010 on the basis of the dying declaration of the victim, viz. Rekha, recorded in presence of Special Judicial Magistrate, Nasik district on 17th March, 2010. Initially the said offence was registered under Section 307 of IPC, but thereafter, since the victim Rekha expired on 21st March, 2010, as she sustained 99% burns, the offence was converted into Section 302 r/w 34 of IPC. Admittedly, the applicant is mother-in-law of victim Rekha. 4) Learned Counsel for the applicant canvassed that a supplementary statements dated 24.3.2010 of witnesses Tukaram Bhagwanta Wakchoure; Madhav Hiraman Wakchoure; and Vithal Bhagwanta Wakchoure, disclose that when they reached on the spot of incident, after hearing shouts, they noticed that wife of Dashrath, viz. Rekha was already burning and applicant herein, viz. Kisnabai and husband-Dashrath were trying to extinguish the fire and, therefore, learned counsel for the applicant submitted that the very conduct of the applicant herein is required to be appreciated and seen since she tried to extinguish the fire on the person of the victim. 5) Learned Counsel for the applicant further submitted that letter dated 17.3.2010 3 issued by the concerned police station to the Special Judicial Magistrate discloses that victim Rekha sustained burns due to bursting of stove when she was cooking in the house. Hence, learned Counsel for the applicant canvassed that there are different versions in respect of sustaining burns by victim Rekha and, as well as the investigation of the crime has been completed and, therefore, applicant herein is entitled to be enlarged on bail. 6) However, learned APP rightly pointed out that the dying declaration of the victim Rekha recorded by Special Judicial Magistrate on 17th March, 2010, categorically discloses the name of the applicant herein, i.e. mother-in-law of the victim as a perpetrator of the alleged crime and the victim Rekha has specifically stated therein that, at the time of occurrence of the incident, victim and the applicant only were present in the house and the applicant quarreled with the victim and applicant poured kerosene on the person of the victim and set her ablaze by lighting a match-stick. The PM notes disclose that the victim Rekha sustained 99% burns and the cause of death is stated to be due to septicemic shock due to superficial to deep burns 99%(Ninety-nine percent). Hence, learned APP submitted that the involvement of the applicant in the alleged crime 4 is apparent and, therefore, learned APP urged that the present application deserves to be rejected. 7) Considering the rival submissions, at the outset, it is a matter of record that earlier Criminal Application No.1588/2010, moved by the applicant was rejected by this Court on 6th May, 2010, which was preferred before filing of the chargesheet. Moreover, after filing the chargesheet, the present applicant has preferred Criminal Misc. Application No.76/2010 before the Additional Sessions Judge, Sangamner, but same also came to be rejected on 23.6.2010. Thereafter the applicant has preferred the present application before this Court. 8) As regards the supplementary statements of Tukaram Wakchoure; Madhav Wakchoure and Vithal Wakchoure recorded on 24.3.2010 and which are referred by learned Counsel for the applicant, it is apparent from the contents of said supplementary statements, that the said statements were recorded after a period of seven days from the occurrence of the incident. Moreover, the said statements also disclose that the said witnesses came on the spot later on when the victim Rekha was already burning. Although it is stated in the said statements that 5 applicant herein was trying to extinguish the fire on person of the victim Rekha, it is a matter of appreciation of evidence, which can be done at the time of trial, and apparently, the said contents of the aforesaid statements do not absolve the applicant and possibility that the applicant set the victim into fire initially and tried to extinguish fire later on, cannot be ruled out. As regards letter dated 17th March, 2010 issued by the concerned police station to Special Judicial Magistrate, requesting to record the dying declaration of the victim, it is apparent that the said letter was issued prior to recording of the dying declaration and, therefore, the contents thereof cannot override the contents of the dying declaration since the contents of dying declaration bear more weightage and, therefore, the contents of the said letter apparently cannot be of any aid and assistance to the case of the applicant herein. 9) Considering the contents of the very dying declaration dated 17th March, 2010 recorded by the Special Judicial Magistrate Nasik district, it is apparent that the victim Rekha has categorically named the applicant, i.e. her mother-in-law as a culprit of the alleged crime and she has specifically stated therein that, at the time of occurrence of the incident, the 6 victim Rekha and the applicant only were present in the house and the applicant quarreled with the victim and she poured kerosene on the person of the victim and set the victim ablaze by lighting match stick, which led to 99% burns sustained by the victim and, therefore, the involvement of the present applicant in the alleged crime is apparent. 10) In the circumstances, the present application bears no substance and same is devoid of any merits and, therefore, same stands dismissed. 11) The observations made by this court in this order are prima facie in nature and the trial court shall not be influenced by the same while deciding any matter on merits. (SHRIHARI P.DAVARE) JUDGE bdv/