1 Cri.Appln.No.2737/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2737/2011 1) The State of Maharashtra Through Assistant Police Inspector, Mehunbare police Station, Ta. Chalisgaon, District Jalgaon. = APPLICANT Versus 1) Rohidas Hilal Borse and others. = RESPONDENTS. *** Mrs.SD Shelke, APP for State. ----- CORAM : A.H.JOSHI & A.R.JOSHI,JJ. DATE : 22nd August, 2011. ORAL JUDGMENT (PER:- A.R.JOSHI,J.): 1) Present application is preferred by State of Maharashtra, asking for leave of this Court to allow to file an appeal, challenging the acquittal of all the five accused persons for the offence punishable under Sections 302, 498-A r/w Section 34 of the Indian Penal Code. 2) Heard rival arguments for some time. 2 Cri.Appln.No.2737/2011 3) The impugned judgment and order of acquittal was passed on 16th March, 2011 by the learned Additional Sessions Judge-2, Jalgaon. By the said judgment and order, all the five accused persons were acquitted for the offence punishable under Sections 302, 498-A r/w Section 34 of IPC. 4) The case of prosecution can be narrated in nutshell as under, - (i) Deceased woman married with accused no.4 on 13th May, 2009 and started residing at the matrimonial home. Initially, there was happy married life. However, subsequently, there were demands of dowry and specific demand of Rs. 1,00,000/- from the accused persons. At one occasion, father of the victim woman paid Rs. 25,000/- to the accused and assured them for arranging rest of the amount. Demand of dowry and harassment and ill-treatment of the victim woman continued at the matrimonial house. (ii) The fateful incident occurred in the morning of 10th June, 2010, apparently within one year and mone month of the marriage. On that day, about 7:30 a.m., allegedly, accused nos. 2 and 3, i.e. Mother-in-law and sister-in-law of the victim woman, dragged her in the latrine of their house sitaute at the first floor. They caught 3 Cri.Appln.No.2737/2011 hold of her and accused no.1, father-in-law of the victim, poured kerosene on her person. She was set on fire by said accused nos. 1 to 3. She raised shouts for help, however, due to burn injuries, she became unconscious. Subsequently, she regained consciousness at civil hospital, Dhule, where she was taken by accused No.4, her husband and neighbours. 5) According to case of prosecution, PW No. 6 - Naib Tahsildar on intimation from Rural police, visited the hospital and after ascertaining the condition of the patient from the attending doctor, recorded the dying declaration of the victim woman on the same day i.e. at about 10:15 to 10:35 a.m. According to him, the victim woman gave her statement in Ahirani language and it wa so recorded by him and thereafter obtained the left foot thumb impression of the victim as the victim has sustained about 90% to 94% burn injuries. According to the prosecution, the second dying declaration was recorded by PW No.1 – Police Head Constable. It was recorded in immediate proximity of the first dying declaration. The said dying declaration was recorded on the same day between 10.40 a.m. To 11.0-0 a.m. This time, PW No.1 Police Head Constable recorded her statement, when the victim woman narrated the 4 Cri.Appln.No.2737/2011 incident in Marathi and it was so recorded by him. This second dying declaration was also recorded after ascertaining the condition of the victim as fit for giving dying declaration. 6) Initially, on the strength of the dying declaration, an offence was registered against the accused nos. 1 to 3 for the offence punishable under Section 307 r/w section 34 of IPC. While under treatment in the Civil Hospital, the victim woman succumbed to the burn injuries at about 16.50 hrs; and as such, offence punishable under Section 302 r/w Section 34 of IPC was inserted in the charge sheet. The statements of the witnesses were recorded during the investigation and revealing role of other co- accused, i.e. accused Nos. 4 and 5, they were arraigned as accused pesons. 7) During the arguments, learned APP for State, pointed out that the Sessions Court had erred in appreciating the evidence of two dying declarations respectively recorded by PW No.1 and PW no.6 and also erred in not appreciating the substantive evidence of parents of the victim woman, i.e. PW Nos. 3 and 4. 8) We have gone through the reasoning given by the learned Sessions Judge while appreciating 5 Cri.Appln.No.2737/2011 the evidence of PW No.1 and PW No.6 concerning two dying declarations. It appears that what was weighed with the learned Sessions Judge was the substantive evidence of these witnesses that both have taken the left foot thumb impression of the victim woman on the respective dying declarations recorded by them and each witness saying that he had applied ink to the left thumb. Substantive evidence of Dr.Rutwik Patil was also weighed with learned Sessions Judge to the effect that the victim had sustained over 90% burn injuries and according to him, the constable was present when the Magistrate (PW No.6) recorded the statement of the victim woman. The learned Sessions Judge also entertained the doubt regarding substantive evidence of PW No.1 inasmuch as said PW No.1, the Police constable, mentioned that he was unaware that the earlier statement of the victim was recorded by PW No.6, the Executive Magistrate and when he took foot thumb impression of the victim on her statement, there was no ink applied to the thumb earlier and he himself applied ink and took the impression. 9) Another circumstance, which was held as mitigating to the case of the prosecution is the factual position as to the latrine, in which the victim woman was found in burn condition and in unconscious condition, was latched from inside. 6 Cri.Appln.No.2737/2011 This factual position was substantiated by the evidence of PW No.8 and PW No.9, the neighbours. This was also substantiated by the evidence of panch witness PW No.2 regarding spot panchanama, inasmuch as the door of the latrine had fallen down from the frame as noticed by the panch witness. This was in consonance with the substantive evidence of PW No.8 and PW no.9, the neighbours that when they found the door of the latrine, latched from inside, they forcibly took away the door of the latrine for making an entry to rescue the victim woman. When they entered the latrine, the victim was in unconscious condition and had burn injuries and there was smoke coming out. 10) Another evidence which prompted the learned Sessions Judge to disbelieve the case of the prosecution and to disbelieve two dying declarations is, substantive evidence of PW No.4, mother of the victim. In the cross-examination, PW No.4 had stated that immediately after seeing the daughter in burnt condition, she felt giddy and did not know as to what happened thereafter and lost consciousness and thereafter her statement was recorded on the third day. As against this admission, according to PW No.4, when she saw the victim in the hospital, there was oral dying declaration made by the victim 7 Cri.Appln.No.2737/2011 before the PW No.4. 11) On carefully scrutinizing the substantive evidence, as mentioned above, and considering the scope of the Appellate court in dealing with the appeal against acquittal, we do not find any merit in the present appeal and as such, it is not a case in which leave to file appeal can be granted to the State. Consequently, the present application must fail and same is accordingly dismissed with following order. ORDER Criminal Application No.2737/2011 stands dismissed. Sd/- sd/- (A.R.JOSHI,J.) (A.H.JOSHI,J.) bdv/ Authentic copy (BD VADNERE,PS)