APPA. 1369-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 1369 OF 2011 IN CRIMINAL APPEAL No. 736 OF 2010 Nabisab Karim Attar ... Applicant Vs. The State of Maharashtra ... Respondent *** Mr. Jayesh D. Talekar, for the Applicant. Mrs. R. M. Gadhavi, APP for the Respondent. *** CORAM : V. M. KANADE, & A. M. THIPSAY, JJ. DATE : OCTOBER 17, 2011 PC: 1. Heard the learned counsel appearing on behalf of the applicant and the learned APP appearing for the respondent State. This is a second application for bail. The first application for bail was not pressed by the applicant’s counsel since we had indicated that we would take the main appeal for final hearing, since most of the witnesses had turned hostile and prosecution had relied on the four dying declarations which were recorded. However, due to paucity of time since it was not possible to take the appeal for final hearing, this application has been filed for bail since we had not decided the first APPA. 1369-11 - 2 - application for bail on merits. 2. The learned counsel for the applicant submits that practically all the witnesses have turned hostile, even son of the deceased turned hostile. He submitted that four dying declarations were recorded and there are discrepancies in these dying declarations on several points including the place at which the said incident had taken place. 3. The prosecution case in brief is that deceased Jainabi Shaikh died on account of applicant’s action of pouring kerosene on her and setting her ablaze. The learned APP, on the other hand, submitted that last two dying declarations were relied upon by the trial Court and in the said dying declarations she had given explanation as to why in the first two dying declarations she had given a different version. 4. In our view, firstly, most of the witnesses have turned hostile including son of the deceased; and, secondly there is variance in the four dying declaration and therefore prima-facie it is difficult to accept the prosecution case. The first dying declaration was recorded by the constable; second dying declaration by the Special Judicial Magistrate; third dying declaration was also recorded by another police constable; fourth dying declaration was recorded by the Special Judicial Magistrate. In the first two dying declarations the deceased has stated that while she was preparing food, her sari caught fire on the stove and as a result, she received burn injuries. In the second APPA. 1369-11 - 3 - dying declaration she has stated that she had committed suicide by pouring kerosene herself and setting on fire and she stated that she had done that on account of a trivial incident and no one was to be blamed. In the third dying declaration she come out with a different version that the applicant had demanded money from her which was given to her on loan by him, then she had told the applicant that she would come to his house after some time and thereafter she went to the applicant’s house and the applicant poured kerosene and set her on fire. More or less same version is given by her in the last two dying declarations and she has stated that on account of the threats given by the applicant, she did not give correct versions in the first two dying declarations. Firstly, there is inconsistency in the said dying declarations. In the first dying declaration she stated that there was an accident and she had received burn injuries on account of said accident; in the second dying declaration she stated that she had committed suicide. In the first two dying declarations she stated that the incident had happened in her own house, whereas in remaining two dying declarations she stated that accused had committed the act of pouring kerosene and setting her on fire in his own house. The investigating officer has prepared the spot panchanama after four days and it is difficult to accept the version of the investigating officer that even after four days the match box, match sticks, broken bangles and burn sari were still found at the place of incident. Even in the arrest panchanama, it is shown that the applicant was wearing the same underwear and had not taken bath for a period of four days. It is, therefore, difficult to accept the version of the prosecution. APPA. 1369-11 - 4 - Surprisingly, even the son of the deceased turned hostile and did not support the prosecution case. This being the position, in our view, this is a fit case for grant of bail. 5. The applicant, therefore, be released on bail, on execution of P.R. bond in the sum of Rs. 10,000/-, with one or two sureties in the like amount. The applicant shall report to the concerned police station once in a month. 6. Place the criminal appeal on final hearing board on 22nd November, 2011. . The criminal application is disposed of in the aforesaid terms. [A. M. THIPSAY, J.] [ V. M. KANADE, J.]