The court emphasized the importance of the credibility of dying declarations and the applicant's prolonged pretrial detention in granting bail under stringent conditions.

The applicant has filed this sixth bail application u/S.439 Cr.P.C for grant of bail. Applicant has been arrested on 22.04.2022 by Police Station- Tharet, District Datia in connection with Crime No.110/2021, registered for offence punishable under Sections 302, 304B, 498A, 427, 120B, 34 of IPC and 3/4 of Dowry Prohibition Act.

2. It is the submission of learned counsel for the applicant that applicant is aged 29 years and suffering confinement since 22.04.2022 and suffered more than two years of incarceration as pretrial detention. Case is of circumstantial evidence and based upon two dying declarations of deceased-Aradhana who happens to be his wife. Date of incident is 06.07.2021 and around 08:30PM, first dying declaration was recorded by Naib-Tehsildar Gwalior in which no role of applicant was referred by dying declarant. However, she survived and referred to Delhi for further treatment. On 28.07.2021 before SDM Delhi, second dying declaration was recorded in which role of applicant was referred for the first time. According to counsel for the applicant, second dying declaration was recorded under the influence of family members of deceased.

Aradhana continued to survive till 06.08.2021 and then she succumbed to the injuries caused by Cylinder Blast. It is not a case where she was at the verge of death or under the expectation of death therefore, as per judgment of Apex Court in the case of Irfan @ Naka Vs. The State of U.P. 2023 LiveLaw (SC) 698, case is of doubtful nature. While referring the discussion as contained into the said judgment, he submits that there is no hard and fast rule for determining when a dying declaration should be accepted. He refers eleven factors mentioned in Para-62 of the judgment to bring home the analogy that dying declaration was of doubtful nature and it is a case of false implication.

3. Learned counsel for the applicant also refers the fact that even in the Indian Belief System especially in x:.k iqjk.k instances are given where it is presumed that person who is in expectation of death, does not mention incorrect facts. Taking the cue from such literature, counsel for the applicant submits that deceased -Anuradha was under the expectation of death on 06.07.2021 which is the date of incident and on that day, she did not make any reference or role of applicant in her dying declaration. However, with the treatment, her condition improved a bit, therefore, at the instance of family members of deceased, another dying declaration was recorded in Delhi before SDM in which she referred the name of present applicant. Such attempt indicates that at that point of time, she was not under the expectation of death and all worldly attributes / thoughts prevailed over her.

4. Learned counsel for the applicant also refers the fact that it was a case of Cylinder Blast and therefore, applicant is falsely implicated. He also referred the dying declaration of deceased -Nancy which was recorded on 06.07.2021 where she did not refer the incident in a manner in which prosecution has referred it in charge-sheet. Confinement amounts to pretrial detention. He undertakes to cooperate in trial and would abide by all the terms and condition as imposed by this Court. He further undertakes not to be a source of embarrassment and harassment to the complainant party in any manner. Under these grounds, he prayed for bail.

5. Learned counsel for the State opposed the prayer and submits that applicant was involved in the case because subsequent dying declaration dated 28.07.2021 refers his name and role in subsequent term. However, he fairly submits on the basis of case diary, no criminal record exists pertaining to applicant.

6. Heard learned counsel for the parties at length and perused the case diary.

7. Considering the submissions and the factors as delinated in the judgement of Apex Court in the case of Irfan @ naka (supra) and especially the period of custody, but without commenting on the merits of the case, this Court in