1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 639 OF 2010 IN CRIMINAL APPEAL NO. 350 OF 2010 Vishal Pralhad Gaikwad .. Applicant Vs The State of Maharashtra .. Respondent Mrs. Prabha Badadare for the Applicant Ms. P.H. Kantharia, APP for the State CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ. DATE : 9th JULY, 2010 P.C.: 1. The applicant is the original accused no. 1. He is convicted for the offence punishable under section 302 of IPC and sentenced to suffer life imprisonment. 2. The case of the prosecution, in short, is that on 25.05.2009, the applicant poured kerosene on his wife and set her on fire in his house. 3. We have heard learned counsel for the applicant in support of bail application at considerable length. She submitted that the applicant has been acquitted of the charge under section 498-A of the IPC, hence, the substratum of the prosecution story has given way. She submitted that there is no endorsement of the doctor on the dying declarations 6.appa639-10 2 that the deceased was mentally and physically fit and therefore, it is not safe to rely on the dying declarations. 4. It is not possible for us to release the applicant on bail. There are two dying declarations on record. One dying declaration is recorded by PW4 PSI Shinde. It is at Exh. 26. Though, there is no endorsement of the doctor on Exh. 26, there is a separate endorsement made by the doctor which is at Exh. 25. This argument, therefore, will have to be rejected. 5. In any case in Laxman Vs State of Maharashtra, AIR 2002 SC 2973, the Supreme Court has held that certification of doctor that the declarant is in a fit state of mind is a rule of caution. Absence of certification of the doctor as to the fitness of the mind of the declarant would not render dying declaration unacceptable. What is essentially required is that the person who records it must be satisfied that the deceased was in a fit state of mind. 6. Second dying declaration is recorded by PW5 SEO Hira Sonawane. It is at Exh. 29. In both the dying declarations, the deceased has stated that the applicant poured kerosene on her and set her on fire. PW5 Hira Sonawane is an independent witness. She has no reason to falsely implicate the applicant. Prima facie, the 6.appa639-10 3 evidence of PW4 PSI Shinde and PW5 SEO Hira Sonawane inspires confidence. Moreover, PW2 Shivaji, uncle of the deceased has deposed about the oral dying declaration made by the deceased to him implicating the applicant. Mother of the deceased has also deposed about the oral dying declaration made to her to the similar effect. 7. It is true that the applicant has been acquitted of the charge under section 498-A, however, that does not mean that he can be absolved of charge under section 302 when the evidence on record clearly indicates his involvement. The case of the prosecution is that the applicant suspected character of the prosecutrix and due to that,he poured kerosene on her and set her on fire. His acquittal under section 498-A has, therefore, has no relevance to charge under section 302 of IPC. In the circumstances, bail cannot be granted to him. Hence, the application is rejected. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] 6.appa639-10 4 6.appa639-10