1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION (APPA) NO. 76 OF 2011 (State of Maharashtra vs. Sou. Pallavi Ajay Thakre) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mrs. Ketki Joshi, APP for the applicant. ….. CORAM : MRS. V.K. TAHILRAMANI & M.L. TAHALIYANI, JJ. APRIL 08, 2011. 1. The applicant – State of Maharashtra, has preferred this application for leave to file appeal against the judgment and order dated 20.10.2010 passed by the Additional Sessions Judge, Nagpur, in Sessions Trial No. 48 of 2010. By the said judgment and order, the learned Sessions Judge acquitted the respondent – original accused No. 4 of the offence under Sections 498A, 302 and 304-B of Indian Penal Code. 2. The prosecution case briefly stated is as under: The marriage of Shalini (deceased) with Ekant – original accused No. 1 took place on 17.04.2006. The respondent was the sister-in-law of Ekant. After marriage, Shalini was harassed by her husband and in- laws and on 13.01.2008, Shalini was set on fire by the respondent and other accused persons. 3. We have heard Mrs. Joshi, learned APP for 2 the State. We have perused the judgment and order passed by the Additional Sessions Judge as well as the evidence produced by the learned APP. After carefully considering the matter, we are of the opinion that this appeal deserves to be dismissed. 4. The incident of burns has taken place on 13.01.2008. Thereafter Shalini was admitted in hospital on 14.01.2008 and her dying declaration came to be recorded. In the said dying declaration, Shalini has stated that she sustained burns on account of accidental burns while cooking. Shalini expired in the hospital on 21.01.2008. It is seen that FIR was lodged on 24.01.2008 i.e. almost 11 days after the incident and three days after the death of Shalini. This delay itself shakes the very foundation of the prosecution case. 5. The biggest flaw in this case is that there is an inordinate delay in lodging FIR. The incident has taken place on 13.08.2008 and FIR has been lodged on 24.01.2008. The learned APP stated that the delay is on account of the fact that the accused persons did not allow relatives and friends of Shalini to meet Shalini in the hospital. They met Shalini on 20.08.2008, when Shalini made oral dying declaration to them. Prior to that none of these witnesses knew that Shalini had been set on fire by the accused persons. Even assuming that Shalini informed these witnesses on 20.01.2008 that she was set on fire by the accused persons, F.I.R. ought to have been lodged on the very day. It is noticed that 3 Shalini died on the next day i.e. on 21.01.2008, however, F.I.R. was registered on 24.01.2008. No plausible reason has been furnished by the prosecution for this inordinate delay in lodging FIR. As observed by us earlier, this aspect shakes the very credibility of the prosecution case. 6. According to relatives of Shalini i.e P.W. 2 – Sunita, P.W. 3 – Hemant, P.W. 4 – Baburao and P.W. 5 - Jijabai, they met Shalini on 20.01.2008, at that time Shalini informed them that all the accused persons have set her on fire. Shalini died on 21.01.2008. Apparently, as per prosecution witnesses, Shalini was not in a position to speak from the date of incident yet on 20.01.2008 she made the alleged dying declaration to the four witnesses. It is pertinent to note that it has not been brought on record whether the condition of Shalini suddenly improved on 20.01.2008 so as to enable her to make a dying declaration to these witnesses. 7. As far as the respondent is concerned, Shalini and Ekant got married on 17.04.2006. Pallavi got married to Ajay (original accused No. 3)- brother of Ekant, one year subsequent to the marriage of Shalini with Ekant. The evidence on record specially that of Investigating Officer shows that Pallavi was not residing with the other accused persons at the time of incident. In such case, as far as incident of Shalini being set on fire is concerned, it cannot be said that the respondent – Pallavi was in any way connected with the said incident. 4 8. The learned APP tried to submit that Pallavi was residing with Shalini and Ekant till after one year of their marriage. During this period, there was harassment and ill-treatment to Shalini by Pallavi. However, as far as this aspect is concerned, it is noticed that P.W. 5 – Jijabai, who is the mother of Pallavi, does not speak about any ill-treatment by Pallavi. Moreover, as far as demand is concerned, the demand is mainly by accused No. 1 and it is not the prosecution case that there was any demand by Pallavi. 9. Thereafter, the learned APP submitted that it cannot be believed that it was a case of accidental burns because on the clothes of Shalini kerosene residues were found. Even assuming it is so, as observed earlier by us, we find that there is an inordinate delay in lodging the FIR. There is no plausible reason furnished for the said delay which goes to the very root of the prosecution case. Even assuming that oral dying declaration was made by Shalini on 20.01.2008, FIR ought to have been lodged on 21.01.2008 but FIR was lodged only on 24.01.2008 i.e. two days after the death of Shalini, which shows that the FIR is the result of an after thought. 10. On going through the evidence on record, we find that the view taken by the Sessions Judge is a reasonable and possible view. 11. The learned Sessions Judge has considered all the above aspects along with other aspects and has 5 thereafter acquitted the respondent. We may make useful reference to the decision of the Supreme Court in the case of State of Uttar Pradesh vs. Dinesh, reported in (2009) 3 Scale 345, wherein in a case of appeal against acquittal it was held that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. The Supreme Court in C. Anthony vs. K.G. Raghavan Nair, reported in (2003) 1 SCC 1, has observed that when two views are possible and when the view taken by the trial Court is a reasonable and possible view, the High Court cannot in an appeal substitute its findings merely because another contrary opinion was possible on the basis of material on record. It is further observed that if two reasonable conclusions can be reached on the basis of the evidence on record, appellate Court should not disturb the findings of the trial Court. Looking to the evidence on record, we find that the view taken by the trial Court is a reasonable and possible view and, therefore, no case is made out for interference. 12. Hence, application for leave to file appeal is rejected. Consequently, appeal is also dismissed. JUDGE JUDGE *GS.