1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3439 OF 2009 IN CRIMINAL APPEAL NO.514 OF 2009 Nandkumar s/o Ashok Zine .. Applicant/ Appellant (Orig.Accused) Versus The State of Maharashtra .. Respondent Shri Hemant Survey, Advocate for applicant/appellant Shri V.D.Godbharle, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ. DATE : 30th November 2009 PER COURT 1. This is an application filed by the applicant/accused who stands convicted for an offence punishable under Section 302 of the Indian Penal Code on the allegations that the applicant had poured kerosene on his wife Priya and had set her ablaze on 2.12.2007. Unfortunately, during the trial the witnesses examined by the prosecution except the Investigating Officer and the Special Executive Magistrate did not support the prosecution. Ultimately, the prosecution rested its case for sustaining the charge under Section 302 of the Indian Penal Code on the basis of 2 two dying declarations at Exh.24 and Exh.36 recorded by P.W.4 Special Executive Magistrate and P.W.7 the Investigating Officer. The trial Court accepted the two dying declarations and found that the prosecution had proved the offence beyond reasonable doubt against the applicant/appellant and, therefore, convicted and sentenced him. 2. Shri Surve, learned Counsel for the applicant/appellant has urged before us that the dying declaration at Exh.36 comprises of three pages and is alleged to have been scribed within a period of fifteen minutes which according to the learned Counsel is highly impossible. Further, our attention has been invited to the two dying declarations at Exh.24 and Exh.36 and an attempt has been made to urge that the timings of the above said dying declarations have not been strictly proved and, therefore, the dying declarations are shrouded in suspicious circumstance. It was also urged before us that the evidence of Medical Officer in respect of the condition of the deceased to have made the aforesaid statement is itself rendered doubtful. It was also urged that there was no record to indicate that the dying declaration had been read over to the declarant and the declarant had admitted the contents of the same. We may refer to the evidence of Medical Officer, P.W.4 in examination-in-chief as well as in Cross-examination who states to have read over the dying declaration to the declarant. 3 3. Be that as it may, the learned Counsel for the applicant/appellant has placed reliance on the judgment in Manohar Dadarao Landge Vs. State of Maharashtra, 2000 (2) Mh.L.J.3, Balasaheb Abasaheb Farate Vs. State of Maharashtra, 1999 (1) Mh.L.J.342, Dada Machindra Chaudhari and another Vs. State of Maharashtra, 1999 (3) Mh.L.J. 325, Shyamrao Vitthal Poiemwar Vs. State of Maharashtra, 2001 (4), Mh.L.J.233, Sanjay Radhesham Ruhatiya Vs. State of Maharashtra, 2000 (1) Mh.L.J.118 and Vithal Sadashiv Gaikwad Vs. State of Maharashtra, 1994 CRI.L.J. 2035 to urge before us that the possibility of tutoring cannot be ruled out. The dying declarations at Exh.24 and Exh. 36 are inconsistent and the prosecution has not been successful in establishing the mental fitness of the declarant to have made the statement. 4. We have perused the dying declaration at Exh.24 and Exh.36 and prima facie we are of the opinion that there is a thread of consistency between the two dying declarations. We have not been able to notice any glaring infirmity at this stage to hold that the two dying declarations are inconsistent. In any event, the submissions advanced before us by the learned Counsel for the applicant/appellant pertain to appreciation of evidence which cannot be done at this stage. Suffice it to say that there is prima facie material on record to justify the conviction. We hasten to add that the aforesaid observations are restricted to the decision of this application and should not be construed as any findings on merits. 4 5. In the light of that, therefore, there is no merit in the application and, therefore, the application is dismissed. ( A.V.NIRGUDE, J.) ( P.V.HARDAS, J.) (vvr/3439.09criappln)