( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3626 OF 2010 Vikram Rangnath Keshbhat APPLICANT VERSUS The State of Maharashtra RESPONDENT .... Mr. N.L. Jadhav, advocate holding for Smt. Sangeeta Jadhav (Pimpre), advocate for the applicant. Mr. N.H. Borade, APP for the respondent/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 8th October, 2010] PER COURT : 1. This is an application for bail. 2. The applicant is husband of deceased Smt. Sangita. The deceased was aged about 35 years and was blissed with two (2) minor daughters i.e. Rani and Rupali. The FIR came to be registered on 6th January, 2010 as per the dying declaration of deceased Smt. Sangita. She narrated to the police that on ( 2 ) the day of incident at about 11 a.m., the applicant (husband) asked her to accompany him to go to agricultural field situated within the precincts of village Deolai. He asked her to take Rs. 5000/- with her. They and their minor daughter by name Rani aged about 3 & 1/2 years went together. She narrated to the police that the applicant purchased one (1) litre petrol in a plastic bottle from a petrol pump situated near Renuk temple. They walked down upto a distance where there was a hill and little ravine. He asked her to sit down. She sat down and was taking out some eatables including fruits when the applicant expressed suspicion and about her character. He attributed charge of infidelity saying that she was having extramarital affair with someone else. He picked up quarrel with her and there was fracast between them. He poured petrol on her person and immediately set on fire by means of a burning matchstick. Immediately, he picked up the minor girl - Rani and ran away from the place. She raised hue and cry and tried to extinguish the fire, but no-one turned up for considerable time. 3. The prosecution alleges that Smt. Sangita died on next day morning due to 100% burns. Her second dying declaration was recorded by the Executive Magistrate in the ( 3 ) same evening on the day of incident. 4. The learned advocate for the applicant would submit that the dying declarations cannot be prima facie believed in view of the fact that deceased Smt. Sangita had sustained extensive burn injuries and was probably unable to narrate the incident. He would further submit that the witnesses such as Gangaram Navgire, Satish Dandvate and others gave discrepant time of the incident and that there is no eye witness account about the alleged act of the applicant. He would further submit that there is no tangible evidence to show that the applicant purchased one (1) litre petrol at the petrol pump. He submits that the applicant is entitled to seek liberty in view of nature of evidence collected by the prosecution and in view of probability that the deceased was unable to narrate the incident due to the extensive burn injuries sustained by her. 5. It appears from the police statement of Gangaram Navgire and other witnesses that they were present in the nearby agricultural fields situated in the precincts of village Deolai. They narrated that they heard cry of someone coming from place of the incident. They noticed that one ( 4 ) woman was asking for help and was crying. She had received burn injuries all over the person. They assisted her. She narrated to them that the applicant had expressed suspicion on her character and thereafter, had pouredkerosene on her person and had set her ablaze by means of a matchstick. The witnesses, therefore, gave information to Osmanpura Police Station. The police party members arrived at the place and took away the injured Smt. Sangita from the place of the incident. It is true that the witnesses stated that the time was approximately 1 p.m. and some of them also narrated that it was around 2 p.m. This is not much important discrepancy. For, the witnesses are illiterate labours and agriculturists. It was noon-time. The persons working in the agricultural fields, ordinarily, do not put on wrist-watches on their hands and might have stated the time only on the surmises or guess work. These independent witnesses have no business, prima facie, to speak lie about the oral declaration given by deceased Smt. Sangita. Apart from this, there is also a recorded dying declaration of deceased Smt. Sangita, one in the form of FIR recorded by the P.S.I. and another in the form of questions and answers as recorded by the Executive Magistrate. At this premature stage, it cannot be said that the deceased was unable to give the dying declarations due to ( 5 ) extensive burns received by her. The capacity of injured to bear the pains and the ability to overcome such painful condition as a result of burning may depend upon from person to person. The deceased was hardly of age of 35 years and appeared to be stout and well-built. It is probable, therefore, that she had sustained the injuries and was capable of overcoming the difficulty caused due to the pains when the written dying declaration was recorded. At this juncture, it would be unsafe to dislodge the dying declarations of deceased Smt. Sangita. 6. It would not be out of place to mention here that deceased Smt. Sangita had no tangible reason to go to such a remote place in that noon. It could not be ordinarily a case of suicide because she might have done such act, if so desired, inside the house and in absence of anyone else. There is prima facie evidence to show that she was taken to such a remote place by the applicant (husband). It is true that there is no eye witness account about the incident. However, the circumstances and the dying declaration of deceased Smt. Sangita, which came to be recorded in the same evening as well as oral dying declaration narrated to the independent witnesses, go to show that there is prima facie ( 6 ) evidence about involvement of the applicant as author of the burn injuries caused to her. Consequently, the application is dismissed. [V.R. KINGAONKAR] JUDGE NPJ/criapln3626-10