SANDEEP MEHTA,J. - (1.) The present bail application has been filed under Section 439 Cr.RC. on behalf of the petitioner, who is in custody in connection with F.I.R. No. 424/2014, Police Station Dungarpur Kotwali, District Dungarpur, for the offence under Section 302 IPC.
(2.) Learned counsel for the petitioner contended that there is no evidence whatsoever on the record of the case to show that the petitioner set fire to the deceased Sushri Reena aged 18 years, after pouring kerosene on her. He submitted that the Investigating Officer examined witnesses Anita Katara and Nisha in order to prove the case. He drew the court 's attention to the statement of Nisha recorded by the trial Court and urged that in her statement Nisha has clearly exonerated the petitioner. The Public Prosecutor conducting the trial did not declare her to be hostile. Thus, he urged that the petitioner deserves to be released on bail.
(3.) Per contra, the learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the petitioner. He urged that the dying declaration of Reena was recorded by the learned Magistrate on 16.10.2014 in which, she clearly stated that the petitioner set her to fire after pouring kerosene on her body. He submitted that the Prosecutor conducting the trial has acted negligently in this case and the trial court was also negligent while recording the statement of the witness Nisha. Mst. Nisha, when examined under Section 161 Cr.PC. during investigation clearly stated that she herself saw Mukesh Rot setting fire to the books and footwear of Reena. Thereafter, both of them entered into a room and locked it from inside. A little later, she saw smoke coming out from the room and heard Reena shouting that Mukesh Rot had set fire to her. When being examined in the court, Nisha resiled from the said statement and claimed that Reena caught fire while cooking food on a stove and that Mukesh Rot was not responsible for the incident. She entirely exonerated the accused Mukesh Rot in her sworn testimony. Learned Public Prosecutor urged that in view of the contradiction inter -se between the statement of Nisha as recorded during investigation and her sworn testimony, the Public Prosecutor conducting the trial of the case should have confronted her with her earlier statement after declaring her to be hostile and the trial Court should also have remained vigilant in this regard. He however submitted that as there is other clinching evidence available on record showing that the petitioner Mukesh Rot poured kerosene on Reena and set her to fire, he is not entitled to be released on bail.;