1 appln-1994-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1994 OF 2009 (For Leave to Appeal) IN CRIMINAL APPEAL NO. OF 2009 (Against the order of acquittal) The State of Maharashtra Applicant (Orig. Complainant) vs Ashikali s/o. Husainali Unwala & anr. .... Respondents (Orig. Accused Nos. 1 and 2) Mr. A. S. Gadkari, APP for the the State. CORAM: B.H. MARLAPALLE & ANOOP V. MOHTA, JJ. DATE : 27th July, 2010 P.C.: Heard Mr. Gadkari, the learned APP for the State. 2 This is an application filed under Section 378 of Cr. PC seeking leave to Appeal against the order of acquittal dated 01.12.2008 passed by the learned 4th Adhoc Additional Sessions Judge at Sewree in Sessions Case No.795/2000. In the said case, the present respondents were put on trial for the offences punishable under Sections 498­A, 302, 304­B and 201 read with Section 34 of IPC. 3 We have perused the Notes of Evidence as placed on record. 2 appln-1994-09.sxw 4 The prosecution had examined in all 11 witnesses and PW­1, PW­2, PW­3 and PW­6 were the close relations of deceased Wahida. The deceased was married to respondent no.1 and respondent no.2 is his mother. Wahida died of burn injuries to the extent of 57.5% and the incident had taken on 11.01.1999 at about 9.30 am in her matrimonial home where she stayed along with the respondents. She was under treatment at Masina Hospital and died on 5th February 1999. PW 11­Dr.Prakash Shinde had conducted the post­mortem and signed the PM report at Exhibit 50. The cause of death was “septicemia 57.5% superficial deep burns”. 5 So far as the charge under Section 498­A is concerned, the prosecution had relied upon the evidence of PW 1, PW 2, PW 3 and PW 6 and their evidence was only of hearsay. A perusal of their depositions goes to show that the incidence of alleged ill­treatment disclosed to them by the deceased were much prior to her death and the trial Court rightly placed reliance on the decision of the Supreme Court in the case of Gananath Patnaik vs. State of Orissa., (2002) 2 SCC 619, to hold that the said hearsay statements could not be termed as evidence within the purview of Section 32 of the Evidence Act. Wahida was married for about 7 years and at no point of time before the incident she had complained about the alleged ill­treatment given to her. As all the four witnesses were close relations of the deceased, the trial Court scrutinised the evidence more carefully and cautiously and recorded that the charge/offence punishable under Section 498­A was not proved. We do not find any fault with the findings recorded by the trial Court. 3 appln-1994-09.sxw 6 The trial Court proceeded to hold that the deceased did not die a homicidal death and in support of the said finding, the trial Court referred to the testimony of PW 4­Dr. Mukesh Vora, PW 8­Dr.Sunil Keswani, PW 5­Safdar Karmali, the then Secretary of Khojashia Ishrani Jamat and PW 10­Arun Shingare. PW 4­Dr.Vora was the first person to visit the room of incident on the call given by respondent no.1 at about 9.30 am on 11.01.1999. When he arrived at the scene he saw the deceased lying naked on the bed in a room and there was no kerosene smell. The deceased was fully conscious and she walked with him up to the Lift for being taken to the hospital. She did not disclose to the Doctor that she was set on fire by either of the accused. PW 8­Dr. Sunil Keswani is a well known Plastic Surgeon and he deposed that on 11.01.1999 at about 10.40 am Wahida was brought to him in a fully conscious condition and she had suffered burn injuries to the extent of 57.5%. Wahida had disclosed to him that at 9.30 am she caught fire while cooking. The Doctor stated before the trial Court that he was in touch with the patient from 11.01.1999 till she breathed her last and on no occasion she had told him that she was set on fire by either of the accused and that too by pouring kerosene on her. PW 5­Safdar Karmali deposed before the trial Court hat on 22.01.199 which was the Ramzan day, he met Wahida in the hospital and she had told him that she sustained burn injuries herself. However, when he met her about one hour before she breathed her last on 05.02.1999, she allegedly stated that she was set on fire. Thus, she made contradictory disclosure to PW 5. The ADR recorded shows that it was accidental burn injury. There was no dying declaration recorded and brought on record by the prosecution. It was claimed 4 appln-1994-09.sxw that though the DD was recorded, but it was misplaced and not traceable. It was not the case of any of the police officers who were responsible for investigation that the deceased at any point of time told in the oral dying declaration to any of them that she was set on fire by the accused by pouring kerosene on her person. Thus, the trial Court considered the evidence of the prosecution, including the effect of Section 106 of the Evidence Act and held that there was no reliable evidence in support of the prosecution case and consequently acquitted the accused. 7 In our considered opinion, the reasoning set out by the trial Court does not call for reconsideration at our hands and hence there is no case made out to grant leave to appeal. 8 Application is rejected and leave to appeal is refused. (ANOOP V. MOHTA, J.) (B. H. MARLAPALLE, J.)