drp {1} Cri. Appeal No.529/2005 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.529 OF 2005 The State of Maharashtra APPELLANT Through PSI, Police Station Newasa, Tq-Newasa, Dist-Ahmednagar VERSUS 1. Sunil Tukaram Aargade RESPONDENTS Age-29 years, 2. Tukaram Yadeo Aargade Age-59 yeas, 3. Hirabai Tukaram Aargade Age-49 years, 4. Sanjay Tukaram Aargade Age-24 years, All R/o Saundala, Tq-Newasa Dist-Ahmednagar ....... Mr.K.G.Patil, APP for appellant State Mr.Joydeep Chatterji h/f Mr.R.M.Pardeshi, Advocate for R-1 to 4 ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 17th February 2011 drp {2} Cri. Appeal No.529/2005 ORAL JUDGMENT (PER P.V.HARDAS, J.): 1. This appeal has been filed by the appellant-State challenging the judgment of the Additional Sessions Judge, Shrirampur dated 28.02.2005, in Sessions Case No.75/2003, acquitting the respondents for offence punishable u/s 302, 498A r/w 34 of the Indian Penal Code. 2. Facts, as are necessary for the decision of this appeal, may briefly be stated thus - PW-7, PSI Deshmukh, who was attached to Newasa police station, was entrusted with the investigation of an offence punishable u/s 307 r/w 34 of the Indian Penal Code, which came to be registered on the basis of the dying declaration / statement of injured Varsha. He accordingly proceeded to the scene of offence, which was house of the accused and drew the scene of offence Panchanama at Exhibit-22. From the scene of the offence he seized the pieces of burnt Saree, peticot, a plastic can of green colour, which was filled with kerosene and a match box with 3 match sticks. On 26.07.2003, the accused came to be arrested and were medically examined. Statements of witnesses came to be recorded. Since Varsha succumbed to her injuries, section 302 of the Indian Penal Code came to be added. The seized property was referred to the Chemical Analyzer along with requisition at Exhibit-51. The drp {3} Cri. Appeal No.529/2005 dead body of deceased Varsha was referred for Postmortem examination and Postmortem on the dead body of deceased Varsha came to be conducted by PW-5 Dr.Sonar. PW-5 Dr.Sonar, who had carried out the Postmortem on the dead body of deceased Varsha, noticed that Varsha had sustained 52 % burn injuries. He opined that the cause of death of Varsha was due to septicemic shock due to 52% burns. The Postmortem report is at Exhibit-28. A sketch of the scene of offence came to be drawn and further to the completion of the investigation, a charge sheet against the present respondents / accused came to be filed. On committal of the case to the Court of Sessions, the trial court, vide Exhibit-5, framed charge against the respondents for an offence punishable u/s 302 r/w 34 and 498A r/w 34 of the Indian Penal Code. 3. In support of its case, for offence punishable u/s 498A of the Indian Penal Code, the prosecution relied on the testimony of PW-1 Arjun, father of deceased Varsha and PW-3 Ankush-uncle of deceased Varsha. Both these relatives of deceased Varsha had deposed that Varsha was initially treated well for a period of 6 months, but thereafter was “harassed” / “ill-treated” on account of illegal demand for Rs.1 lac for laying pipeline in the field of the accused. The trial court repelled the aforesaid evidence and held that it failed drastically short of proving the offence beyond reasonable doubt. PW-1 and PW-3, had only vaguely referred as harassment and ill-treatment, without specifying the exact treatment which was meted out to deceased Varsha. The trial court drp {4} Cri. Appeal No.529/2005 also found that the demand for Rs.1 lac was an imaginary demand, as the accused were financially well placed and their agricultural land was irrigated and thus negatived the need for Rs.1 lac from deceased Varsha. 4. In respect of the offence punishable u/s 302 of the Indian Penal Code, the prosecution led evidence at Exhibit-56 that on 24.07.2003, history of burns because of accident had been recorded. Similarly, in the medico legal case papers, the Medical Officer had recorded at Exhibit-33 on 24.07.2003 at 12.30 p.m. that Varsha had sustained accidental burns. The aforesaid history was narrated by Varsha herself. The prosecution relied on a written dying declaration at Exhibit-79, recorded by PW-8 Sushama Paikikari. It appears that Medical Officer PW-6 Dr.Urmila Todmal had endorsed on the dying declaration regarding fitness of Varsha to give her statement. We have perused the evidence of PW-8 Sushama Paikikari, Executive Magistrate, as well as evidence of PW-6 Dr.Urmila Todmal. Upon such perusal, it transpires that PW-8 Sushma Paikikari, Executive Magistrate, has not deposed about the contents of the dying declaration alleged to have been recorded. In other words, PW-8 Sushama Paikikari has failed in proving what was stated to her by Varsha. A reference in this behalf, may usefully be made to the Division Bench Judgment of this Court in Criminal Appeal No.714/2008 dated 08.09.2010 “Santosh Dattatraya Tak V/s State of Maharashtra” to which both of us were parties. This Division Bench, in no uncertain drp {5} Cri. Appeal No.529/2005 terms, after relying on the other judgments of this Court, held that it was incumbent for the prosecution to prove what was stated by the injured to the scribe. Unless and until the contents were proved, mere statement regarding recording of the statement would not amount to prove its contents. 5. A dying declaration at Exhibit-79 judged in the light of the aforesaid Division Bench Judgment, impels us to hold that the contents have not been proved and, therefore, Exhibit-79 cannot be relied upon. 6. The prosecution has also relied on the oral dying declaration alleged to have been made by deceased Varsha to PW-1 Arjun and PW-2 Mininath. The trial court, for the reasons which are recorded in the judgment, has rejected the aforesaid oral dying declaration. 7. With the assistance of learned counsel for the parties, we have carefully perused the evidence of the prosecution witnesses. We have also perused the findings recorded by the trial Court. Upon such perusal, according to us, the view taken by the trial court appears to be a possible view to be taken on the basis of the evidence on record. We do not notice any perversity in the reasoning of the trial court to warrant any interference in this appeal against acquittal. This appeal, therefore, being without merit is liable to be dismissed. drp {6} Cri. Appeal No.529/2005 8. Accordingly, Criminal Appeal No.529/2005 is dismissed, confirming the acquittal of the respondents. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/A11/criapel529-05