1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1517 OF 2010 The State of Maharashtra Through Police Station, Purna, Taluka Purna, Dist. Parbhani APPLICANT VERSUS 1. Munjaji S/o.Manik Pawar, Age-23 years, Occu-Agril., R/o.Erandeshwar, Taluka Purna, Dist. Parbhani. 2. Manik S/o.Madhavrao Pawar, Age-61 years, Occu-Agriculturist, R/o.Erandeshwar, Tal. Purna, Dist. Parbhani. 3. Nilawatibai W/o.Manik Pawar, Age-55 years, Occu-Household, R/o.Erandeshwar, Tal. Purna, Dist. Parbhani. RESPONDENTS Mr.N.R.Shaikh, learned counsel for the applicant. Mr.P.C.Mayure h/f. Mr.S.S.Rathi, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 30/08/2010 PER COURT : 1. This is an application filed by the applicant/State seeking 2 leave to file appeal against the judgment of the Additional Sessions Judge, Parbhani, dated 16/01/2010, in Sessions case No.13/2009, acquitting the respondents for offence punishable u/s. 498(A), 302, 304-B r/w. 34 of The I.P.C. 2. The pivot of the prosecution against the respondents accused revolves around the evidence of P.W.No. 8 Mohd. Khaja, Special Executive Magistrate in respect of the recording of the dying declaration at Exh.46. The Trial Court found that the possibility of injured Rohini being tutored to give the aforesaid evidence could not be ruled out. The Trial Court also came to the conclusion that it was highly unlikely that Rohini, who had sustained 90% burns, was conscious at the time when her statement came to be recorded. It appears that at noon, when the doctor had examined her, he found that Rohini was not in a condition to give her statement, however, subsequently at 2.55 p.m. the Medical Officer opined that Rohini was conscious to give her statement. 3. We have heard Shri.Shaikh, learned A.P.P. on behalf of the applicant with whose assistance we have perused the evidence recorded by the Trial Court. We have also perused the deposition of P.W.No.8 Mohd. Khaja, Special Executive Magistrate who had recorded the dying declaration. It appears that P.W.No.8 Mohd. Khaja does not refer to the contents of the dying declaration. According to us, in the light of the Division Bench Judgment of this Court in Deorao S/o.Sonbaji Bhalegao and another versus State 3 of Maharashtra, reported in 2008 All MR (Cri) 1921 and Jivan Tulsiram Dhavali and another versus State of Maharashtra, reported in 2008 All MR (Cri) 2018, and Laxmibai W/o.Maruti Satpute and others versus State of Maharashtra, reported in 2010 All MR (Cri) 182, since the Recording Officer has not proved the contents of the dying declaration at Exh.46, the aforesaid dying declaration could not be made the basis for sustaining the charge u/s. 302 of The I.P.C. In that light of the matter, therefore, we do not notice any perversity in the reasoning of the Trial Court to justify the grant of admission of leave to file appeal. Application, is being sans merit, is therefore dismissed with no order as to costs. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/AUGUST 2010/cri.appl.1517-10