Criminal Appeal No. 2407 of 2005

25th October, 2005

Petitioner Counsel: Shri. RAJENDRA DESHMUKH,Shri. R. D. SANAP
Respondent Counsel: Shri. D. V. TELE

Cases Cited:
Samadhan Badgujar Vs. State of Maharashtra, 2002 ALL MR (Cri) 342 [Para 4]
Rama Koli Vs. State of Maharashtra, 2002 ALL MR (Cri) 136 [Para 5]
Niranjan Singh Vs. Prabhakar, AIR 1980 SC 785 [Para 7]

JUDGMENT

JUDGMENT : - This is an application for bail. The facts relevant for decision of this application are that deceased-Parveen Begum married Shariefa Shah about seven years, prior to the occurrence. Two daughters namely, Nilofar and Anjum were born within the wedlock. Previously all the members of the family were residing jointly. However, about one year prior to occurrence. Sharief Shah started living separately with his wife and daughters. On 29-9-2004, the deceased came out from the house shouting for help as she was burning. One of the nighbourers Appasaheb douzed the fire by using bundle of grass. After that the applicants and brother-in-law Mohammed Shah came there, Mohammed Shah then took the deceased to the Hospital at Jalna. At Jalna case papers was prepared showing that deceased sustained burn on account of explosion of stove. The statement was recorded at Jalna Hospital where deceased Parveen did not make allegations against anyone. She was, then, shifted to Ghati Hospital at Aurnagabad.

2. On the next day, i.e. 30th September, 2004 in view of the directions received from the higher authorities, Head constable Jadhav recorded the statement of Parveen. In this statement deceased disclosed that on the day of occurrence at about 7.00 her husband beat her and went out and after that the applicants - Aminabi, mother-in-law and brother-in-law Mohammed Shah came to her house and started quarreling with her because she had not brought dowry from her parents. They threatened to kill her. Deceased specifically mentions that the ill-treatment was being given to her for a long period, in as much as her father was also not allowed to come to her house. The deceased then made allegation that at the time of occurrence the applicant no.2 Mohammed Shah and her husband Sharief Khan poured Kerosene on her person and set her ablaze. She made it clear that the earlier statement was recorded under pressure and, as such, she had not disclosed true facts. The statement was followed by another statement recorded on the same day by the Executive Magistrate. In that statement also, deceased reiterated her allegation against these persons. On the basis of second statement offence came to be registered against the applicants and others under section 307 and 498-A read with section 34 IPC.

3. During the course of investigation, the applicant was released on anticipatory bail. However, Parveen expired on 12th October, 2004. Therefore, penal section was changed to Section 302 IPC. The prosecution made an application for cancellation of bail on the ground that applicant is not co-operating with the Investigating Officer. The anticipatory bail granted earlier was, therefore, cancelled by the trial Court. The order was challenged in this Court by preferring Criminal Application No.1986/2005, however, the order of the trial Court is maintained.

4. Learned counsel for the applicants submits that in the first dying declaration no allegations were made against them. In the second dying declaration there are allegations. However, in the third dying declaration allegations are mainly against the husband, though the names of the applicants and father-in-law Ahmed Shah are also referred to by the deceased. It is submitted that second denying declaration is not recorded in the presence of the Medical Officer, therefore, no sanctity can be attached to this statement. For this purpose, reference is made to the ruling of this Court reported in 2002 ALL MR (Cri) 342 in the matter of Samadhan Badgujar Vs. State of Maharashtra. In para no.19 the Division Bench has referred to the basic requirements of a valid dying declaration. In this context, it is contended that the second dying declaration does not satisfy these requirements as endorsement of Medical Officer is not obtained. It is pertinent to bear in mind that at this stage it is not necessary to appreciate the evidence. That has to be done at the time of trial. However, reference can be made to an application dated 30-9-2004 by Head Constable - Jadhav who recorded said dying declaration to the Medical officer. On this application in the margin there is an endorsement of the Medical officer concerned at that the patient is conscious, oriented and may give a valid MLC statement. Therefore, the submission that the Medical Officer was not approached before recording the said dying declaration cannot be sustained. The endorsement shows that the Medical Officer did verify that the patient was in position of making declaration when it was recorded by Head Constable Jadhav. In the third dying declaration also reference is made to the applicants.

5. Another ruling of this Court reported in 2002 ALL MR (Cri) 136 in the matter of Rama Koli Vs. State of Maharashtra, is relied upon by the applicants. In that case, it was observed in para 9 of the report that the API who recorded the dying declaration did not read over the same to deceased Deoram and the deceased did not confirm that it was correctly recorded. In that case, there were some infirmities in the evidence in respect of the dying declaration, therefore, the dying declaration was not relied upon by this Court. This judgment also does not help the applicants.

6. The learned counsel has also referred to delay in registration of the offence. The occurrence took place on 29th Sept., 2004; the victim was taken to Jalna from there she was brought to Ghati Hospital on 30th Sept., 2004. The dying declarations of the deceased were recorded after that. In fact, the offence was first registered vide Crime No.187/2004 under sections 307, 498 read with Section 34 IPC. According to the learned counsel the delay creates doubt regarding the sanctity of the dying declaration. These are the matters which are to be decided at the time of trial and not at this stage.

7. It is contended by the learned counsel that it was Mohammed Shah who douzed the fire and took the victim to the Hospital. It is contended that the applicants are living separately from the deceased. In this behalf reference is made to the statement of the father Akbar Shah and others. There is no dispute since the year prior to the occurrence Sharif Shah was living separately with the deceased and children. Their houses were, however, nearby. It can be seen that though the deceased was crying for help, none of these persons helped her. It was stranger Appasaheb who happened to be a passing by who douzed the flames by using bundle of grass. After that the applicant and Mohammed Shah came there. Mohammed Shah then took her to the Hospital at Jalna. Reference is made to the O.P.D. paper prepared on 29-9-2004 which shows that information is given to Jalna police regarding the MLC case in which deceased Parveen is shown to have sustained burns on account of explosion of stove. No importance can be attached to this paper as first dying declaration exonerating the applicants was recorded at Jalna, showing influence exerted by Mohammed Shah on the deceased as well as others. Be that, as it may, there is nothing on record to show that deceased had any motive for falsely implicating the applicants and others. The dying declaration is made admissible in evidence because at the threshold of death false implication is generally ruled out, in the absence of motive. Of course, other circumstances are required to be taken into consideration before accepting the dying declaration, including the fact that accused had no opportunity to cross-examine the deceased. Be that, as it may, having regard to the material on record, it can be seen that prima facie case has been made out and that the offence is of serious nature. At this stage, it is not necessary to analyse the evidence in detail. For this purpose, reference can be made to the ruling of the Apex Court reported in AIR 1980 SC 785 in the matter of Niranjan Singh Vs. Prabhakar. In that case, it is observed by the Apex Court that while considering the bail application, the question as to whether there is prima facie case against the accused has to be considered. No detailed examination of evidence at that stage is necessary.

8. Before parting a reference may be made to the contention of the learned counsel for the applicants regarding the observations, this Court while passing the order is respect of cancellation of the bail application on 3rd August, 2005 that "it is made clear that in case the applicants apply for bail, the bail application will be decided on its own merit and without influencing any way about the observations made in the impugned order." These observations are construed to be an indication for the trial Court to favourably consider application for bail. Such an interpretation is not possible. The observations are very clear. The application for bail if filed is to be decided as per the accepted norms without being influenced by the observations in that proceedings.

9. Having regard to the seriousness of the offence and the fact that charge-sheet has been filed and the trial is likely to take place in the near future, this is not a fit case wherein the applicants can be released on bail. Application is thus, rejected.

10. Needless to say that observations made at this prima facie stage shall not influence conclusions to be drawn at the trial.

Application dismissed.