1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1863 OF 2009 The State of Maharashtra, through Police Station Officer, Talwada Police Station, Tq. Georai, Dist. Beed. ...Applicant (Orig. Complainant) VERSUS 1 Arjun s/o Maroti Kale, age 65 years, occ. Agriculture, r/o Golegaon, Tq. Georai, Dist. Beed, 2 Lochanabai w/o Arjun Kale, age 62 years, occ. Agriculture, r/o as above. ...Respondents (Orig.accused nos. 2 & 3) ..... Shri B.J.Sonwane, APP for the applicant Shri V.D.Sonwane, advocate for the respondents ..... CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE ORDER : 25.9.2009 DATE OF PRONOUNCING THE ORDER : 01.10. 2009 2 O R D E R : (Per Shrihari P.Davare, J.) 1 Perused. 2 By the present application, the applicant/State has sought leave to file the appeal against acquittal under Section 374 (4) of the Code of Criminal Procedure. 3 Respondent nos. 1 and 2 i.e. original accused nos. 2 and 3 along with accused no.1 were tried under Sections 498-A and Section 302 r/w Section 34 of the Indian Penal Code and Section 304 of the Dowry Prohibition Act, by the learned Adhoc District Judge-1, Beed in Sessions Case No. 54 of 2007 and accused no.1 Sheshnarayan Arjun Kale was convicted for an offence punishable under Section 302 of the Indian Penal Code and was sentenced to suffer life imprisonment and fine; whereas accused nos. 2 and 3 i.e. respondent nos. 1 and 2 herein were acquitted from the respective charges by way of judgment and order dated 16.2.2009 rendered by the Adhoc District Judge-1, and Additional Sessions Judge, Beed. Being aggrieved by the said judgment and order of acquittal against respondent nos. 1 and 2, the applicant/State has preferred the present application as aforesaid. 3 4 We have perused the oral and documentary evidence and more particularly the four dying declarations of the deceased Radha, as well as perused the medical evidence and also considered the Rulings cited by the learned counsel for the respondents and heard the submissions advanced by the learned counsel for the applicant as well as for the respondents. 5 Learned counsel for the applicant/State submitted that accused no.1 Sheshnarayan Arjun Kale is the husband of deceased Radha and their marriage took place on 14.5.2006. Accused nos. 2 and 3 i.e. Arjun Maroti Kale and Lochanabai w/o Arjun Kale are the parents of accused no.1 i.e. parents-in-law of deceased Radha. There are allegations of consistent unlawful demand of dowry amount of Rs.1,50,000/- and amount for purchase of motor cycle from the victim by the accused persons and subjecting the victim to cruelty therefor. The alleged incident occurred during the Holi festival in the year 2007 i.e. on 3.3.2007 and it is alleged that accused nos. 2 and 3 poured kerosene on the person of victim and accused no.1 ignited the match stick and set her ablaze, and accused no.2 also threw sugar on her person and thereby deceased Radha sustained burn injuries and succumbed to the said injuries and expired on 7.3.2007. 4 6 In all 4 dying declarations of the victim Radha were recorded, out of which the first dying declaration Exh.42 was recorded in first point of time i.e. at 11.15 p.m. on 3.3.2007 by the constable, wherein she narrated that she sustained burns by accident due to fall of Chimani on her person by the push of cat when she was asleep. The next dying declaration Exh.49 was recorded at about 5.15 p.m. on 6.3.2007 by the Special Executive Magistrate, wherein the victim involved accused nos. 1 to 3 and attributed specific roles to them during the occurrence of the incident. The third dying declaration Exh. 54 was recorded on 6.3.2007 at the same time by the Special Executive Magistrate, wherein the victim involved accused nos. 1 to 3 and attributed specific roles to them during the occurrence of the incident. The last dying declaration Exh. 62 was recorded between 6.00 p.m. to 6.30 p.m. on 7.3.2007 by PW8 – Ajinath Lakade, the Investigating Officer, wherein also the victim involved accused nos. 1 to 3 and specified their roles during the occurrence of the incident. 7 Thus out of the afore said 4 dying declarations, 3 dying declarations involve accused nos. 2 and 3 in the offence and their specific roles have been described by the victim therein. Moreover, it is pertinent to note that the deceased has given the 5 very cause in the later dying declarations why she gave the first dying declaration without involving accused nos. 1 to 3 and the said cause is that she was given threats by the accused persons that she might not be admitted in the hospital and she would not be given medical treatment and the said threats compelled her to give the first dying declaration. 8 We have also perused the postmortem notes Exh. 56-C, which discloses that deceased sustained 100 per cent burns and cause of death of victim Radha is given 100 per cent burn injuries with septicemia and testimony of PW7 Dr. Hubekar substantiated the same. 9 We have also perused the statements of respondent nos. 1 and 2 original accused nos. 2 and 3 recorded under Section 313 of the Code of Criminal Procedure, and apparently, no proper explanation has been given by them regarding death of the victim therein. 10 Having comprehensive view of the matter and after giving anxious considerations to the submissions advanced by the learned counsel for the parties and also after perusal of the observations made and conclusions drawn by the learned 6 Sessions Judge in the impugned judgment, we are not satisfied with the reasoning adopted by the learned Sessions Judge in the impugned judgment acquitting respondent nos. 1 and 2 original accused nos. 2 and 3, and apparently we find that there is prima facie case against respondent nos. 1 and 2 original accused nos. 2 and 3, and, therefore, leave is required to be granted to the applicant/State to file the appeal against respondent nos. 1 and 2. 11 In the result, application is allowed. Leave granted to file appeal against respondent nos. 1 and 2 original accused nos. 2 and 3 as prayed for. Action under Section 390 of the Code of Criminal Procedure be taken. Respondent nos. 1 and 2 i.e. original accused nos. 2 and 3, after arrest, be released on bail in the sum of Rs. 15,000/- each with one surety each in the like amount, with a direction to give quarterly attendance before the learned Adhoc District Judge and Additional Sessions Judge, Beed till disposal of the appeal. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) dbm/crap1863.09