- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.4528 OF 2009 The State of Maharashtra ... APPLICANT VERSUS Shaikh Ajmer s/o Shaikh Gafur ... RESPONDENT ----- Shri K.S. Patil, A.P.P. for respondent ----- W I T H CRIMINAL REVISION APPLICATION NO.319 OF 2009 Raosaheb s/o Kaluba Ghorpade ... PETITIONER VERSUS The State of Maharashtr a & anr. ... RESPONDENTS ----- Shri R.R. Imale, Advocate for the petitioner Shri K.S. Patil, A.P.P. for respondent No.1. ----- - 2 - CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATED : 10th February, 2010. ORAL ORDER : 1. Criminal Application No.4528/2009 is filed by the State challenging the acquittal of the respondent for offence punishable under Section 302 of the Indian Penal Code. Criminal Application No.319/2009 has been filed by the original complainant, also seeking to challenge the judgment of the trial Court, acquitting the respondent. Since both these proceedings arise from the same judgment, these matters are being decided by this common order. 2. According to the prosecution, deceased Satish was administered poison by the respondent/ accused on 25.2.2008 on account of certain exchange of words between deceased Satish and wife of the respondent. According to the prosecution, the respondent/ accused had gone to the house of deceased Satish and had administered some poison to him. When deceased Satish was found to be unconscious, he was rushed to the hospital where first aid was administered to him. Suspecting his death to be on account of administration of poison, a report - 3 - accordingly came to be lodged, on the basis of which the prosecution against the respondent were initiated. 3. During trial, the prosecution principally relied upon the dying declaration of deceased Satish at Exhibit 30, recorded by P.W.7 Police Head Constable Abhay. The trial Court no doubt has not found the said dying declaration to be free from legal infirmities and chose not to rely on same. However, the trial Court also noticed that report of the examination of the viscera did not show any trace of poison neither the report of the Chemical Analyser in respect of the examination of the vomit say any traces of poison. In the light of the fact that neither the examination of viscera nor the examination of the vomit showed any presence of poison, even if the finding of the trial Court be said to be incorrect in respect of the dying declaration, the conviction cannot be based on mere dying declaration of the deceased which has been proved to be an untrue narration on the basis of the other evidence of the prosecution. 4. We have heard Mr. K.S. Patil, learned A.P.P. and Mr. Imale, learned counsel on behalf of the revision applicant. We have also perused the findings recorded by the trial Court and upon such perusal, we do not notice any perversity in the - 4 - reasoning of the trial Court to warrant the admission of the present appeal against acquittal. In that light of the matter, since there is no merit in the proceedings, Criminal Application No. 4528/2009 and Criminal Revision Application No.319/2009 are dismissed. Leave refused. [ SHRIHARI P. DAVARE, J.] [ P.V. HARDAS, J.] fmp/cri61.10