1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.2031 OF 2010 The State of Maharashtra ..APPLICANT VERSUS Irshad M. Umar Ansari & ors. ..RESPONDENTS Mr B.V. Wagh, A.P.P. for the applicant; Mr S.S. Rathi, Advocate for respondents no.1 to 4. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 6th September, 2010 PER COURT : By this application the applicant - State seeks leave to file appeal against the judgment of Sessions Judge, Parbhani, dated 26.2.2010, in Sessions Trial No.19 of 2009, acquitting the respondents for offence punishable under section 302, 498-A, 323, 504 read with section 34 of the Indian Penal Code. 2. The prosecution, in order to establish the offence against the accused beyond reasonable doubt, relied upon the dying declaration at 2 Exh.34 recorded by P.W.5 Executive Magistrate on 29.5.2008. The prosecution also relied upon the oral testimonies of P.W.2 Mohd. Saber Lalmiya Ansari, father of deceased, P.W.6 Mohd. Gayas, brother of deceased and P.W.7 Shaikh Yunus, a friend of the brother of the deceased. The prosecution alleged that Rubina, wife of accused no.1 was set ablaze by the accused on 29.5.2008 on account of failure of the parents of deceased Rubina to satisfy the greed of the accused towards payment of Rs.1,00,000/-. 3. The Trial Court acquitted the respondents/accused on the ground that in the dying declaration at Exh.34 deceased Rubina had made no reference to the demand of Rs.1,00,000/- or the fact that she was illtreated on account of the failure of her father to fulfill the alleged demand. The Trial Court, therefore, found that the recitals in the dying declaration were at variance with the oral testimony of the close relatives of the deceased. Further, it appears that P.W.1 Tannu Ahamad, who had immediately rushed to the scene of the offence and who had shifted injured Rubina to the hospital, deposed about Rubina having made oral dying declaration to him that she had attempted to commit suicide. P.W.1 Tannu was prosecution witness and though he had not supported the prosecution in the cross-examination by giving the aforesaid admission, prosecution made no efforts to declare him hostile or to confront him with his previous statement. The prosecution, therefore, cannot just wish away the admission given by P.W.1 Tannu. The oral dying declaration 3 alleged to have been made to P.W.2, father of deceased Rubina, was also inconsistent with the written dying declaration. In such circumstances, therefore, the Trial Court found that it was a fit case wherein benefit of doubt ought to be extended to the accused and accordingly acquitted the respondents/accused. 4. We have heard Shri Wagh, learned A.P.P. on behalf of the applicant - State. We have perused the findings recorded by the Trial Court. We have extensively perused the evidence of the prosecution witnesses and upon such perusal we find that the view taken by the Trial Court is a possible view to be taken on the basis of evidence on record and since there is no perversity in the reasoning of the Trial Court, according to us the present application deserves to be rejected. Accordingly, Criminal Application No.2031 of 2010 is dismissed. Leave refused. (A.V. POTDAR, J. ( P.V.HARDAS, J.) amj/criap2031.10