1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3045 OF 2011 The State of Maharashtra through PI Newasa Police Station, for Complainant Eknath Pandharinath Mane, R/o Barababhali, Tq.Nagar, Dist.Ahmednagar. ...APPLICANT (Ori.Complainant) VERSUS 1. Dattatraya Bhanudas Kusalkar, Age 22 years, occu. Labour. 2. Janabai w/o Bhanudas Kusalkar, Age 45 years, Occu: Household, Both r/o. Usthala Dumala, Tq. Newasa, Dist. Ahmednagar. ...RESPONDENTS (Ori.Accused) ... Mr.N.R.Shaikh, Adv., for the applicant. ... CORAM: A.H.JOSHI AND A.R.JOSHI, JJ. DATE:AUGUST 25th, 2011 ... 2 PER COURT: (Per A.H.Joshi, J.) 1. Heard learned A.P.P. and perused impugned judgment. 2. Deceased Jyoti was brought to hospital with 98% skin deep burns at about 8.30 A.M. on 1.6.2010. 3. PW 6 Dr.Pathak has proved that when examined at 9.30 A.M., she was in semi-conscious condition and he had prescribed intravenous and intra-muscular injections of pain relief. 4. According to prosecution, Jyoti gave oral dying declaration to her mother and father. Prosecution is not able to dispute that story as to contents of oral dying declaration narrated by mother and father, which is not coherent and do not corroborate the written dying declaration recorded by Executive Magistrate. 5. Moreover, Dr.Pathak almost proves that Jyoti was not fit being semi conscious at 9.30 A.M., to be able to give dying declaration. 6. The dying declaration was recorded by Executive Magistrate at 2.30 P.M. on 1.6.2010. 3 7. Though PW 3 has deposed that Jyoti was fit to give dying declaration, either amongst witnesses PW 3 Dr.Vijaya Sardesai or, PW 5 Mr.G.D.Ghugarkar, the Executive Magistrate, they have not proved as to what were the questions put to Jyoti to judge her orientation and fit status to give dying declaration. 8. Bare questions as to with whom she resides, is feared, would hardly become adequate to prudently conclude that the deceased Jyoti was at that time well oriented and fit and competent to give dying declaration. 9. Need to be sure that Jyoti had gained consciousness, is all the more imperative when she was semi conscious at 9 A.M. in the morning and it was not proved that by 2.30 P.M. her health had improved. 10. Moreover, Jyoti died on 5/6/2010 and state of health of Jyoti between 1st to 5th June, 2010 is not proved. Admittedly, she died due to septicaemia consequent on 98% burn injuries. 11. Ill-treatment over dowry related demands is relied upon by the prosecution, but it is based on hearsay, and is unworthy of reliance. 4 12. In the result, we are satisfied that appeal does not deserve any indulgence. 13. Application and appeal are dismissed. (A.R.JOSHI) (A.H.JOSHI) JUDGE JUDGE ... (agp:3045-11crapl)