cra707.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.707 OF 2011 IN CRIMINAL APPEAL NO.82 OF 2011 1) Shripati s/o Bhimrao Dhavale, Age-52 years, Occu:Labourer, R/o-Dagadgaon, Tq-Loha, Dist-Nanded, 2) Sow. Ratanbai w/o Shripati Dhavale, Age-48 years, Occu:Household, R/o-As above. ...APPLICANTS. VERSUS 1) The State of Maharashtra, Through P.S. Sonkhed, Tq-Loha, Dist-Nanded. ...RESPONDENTS. ... Shri. S.V. Warad Advocate for Applicants. Shri. D.V. Tele, A.P.P. for Respondent. ... CORAM: NARESH H. PATIL AND T.V. NALAWADE, JJ. DATE : 5TH APRIL, 2011. cra707.11 2 ORAL ORDER [PER T.V. NALAWADE, J.] : 1. This Application for bail is filed as the Applicants are convicted and sentenced for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code, by Adhoc Additional sessions Judge, Kandhar, Dist-Nanded in Sessions Case No.22 of 2006. Record of the Sessions case was called and both the sides are heard. Both the Applicants were on bail, in view of the order passed by this Court in the past, through-out the trial. 2. In the trial Court, prosecution has relied on two dying declarations of deceased Satyabhama Dhavale and on some circumstantial evidence, like presence of kerosene on the clothes of the deceased. The incident took place on 6th February, 2006. 3. It is the case of prosecution that the deceased had some dispute with the parents of her cra707.11 3 husband, the present Applicants, as they were not happy with the deceased. The husband of the deceased was also frustrated due to frequent quarrels and one of such quarrel took place on the morning of 6th February, 2006. As the quarrel started, the husband of the deceased left the house and then deceased and two accused remained in the house. The allegations are made that at about 9.30 a.m. the two accused persons poured kerosene on the person of the deceased and mother in law of deceased set on fire to the deceased. Due to hue and cry made by the deceased, neighbours gathered and deceased was shifted to the Government Hospital. Two dying declarations of the deceased were recorded. One was recorded by Judicial Magistrate and other was recorded by the Police Officer. On the basis of the same, crime was registered. Satyabhama succumbed to the injuries on the same day. 4. The prosecution has proved both the dying cra707.11 4 declarations by examining Judicial Magistrate, who recorded the dying declaration, by examining the Constable, who recorded the second dying declaration and by examining Doctor who gave fitness certificate about the mental condition of the deceased. The spot panchnama was proved in the evidence of Investigating Officer. The parents of deceased were examined. The mother of deceased has turned hostile though father has stuck up to the version given to the police. 5. The Advocate of the Appellant submitted, that the medical evidence shows that the burn injuries were more than 90% on the head, neck and face and there was an injury to vocal cord and in view of these circumstances, there is possibility that the deceased was not in a position to give such dying declarations. He also submitted that evidence of investigating officer shows that it had transpired during investigation that the neighbours had gathered and one of the neighbour cra707.11 5 was required to open the door of the house as latch was put on from inside to this door. In view of these circumstances, it is submitted for the Appellants that there is probability that dying declarations are not true. The prosecution has not examined the neighbours and the prosecution has relied mainly on two dying declarations. 6. There is some discussion made by the trial Court on the mental condition of the deceased on the basis of evidence given by the medical officer. Mother of deceased turned hostile. The available circumstances shows that there is strong arguable point for defence. There is no need to discuss the evidence at this stage. We find sound prima facie case, after considering the record and the submissions advanced, to release the Applicants on bail pending hearing and final disposal of the Appeal. 7. The Application is allowed. Both the cra707.11 6 Applicants i.e. Applicant No.1 - Shripati s/o Bhimrao Dhavale and Applicant No.2 - Sow. Ratanbai w/o Shripati Dhavale, are released on bail on the same terms and conditions on which they were released on bail during the trial, however by furnishing fresh Bonds. [T.V. NALAWADE,J.] [NARESH H. PATIL,J.] asb/APR11/cra707.11