1 Cri.Appln.2057.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2057 OF 2009 The State of Maharashtra through Public Prosecutor, High Court, Bench at Aurangabad ... Applicant V E R S U S Balu S/o Raghunath Jidgire and others ... Respondents ... Mr. K.G. Patil, A.P.P. for Applicant-State. Mr. S.P. Urgunde, Advocate for respondent nos. 1 to 4. ... CORAM : P.V.HARDAS AND A.V.NIRGUDE, JJ. DATED : 9TH NOVEMBER, 2009 PER COURT 1] This is an application by the applicant- State seeking leave to file Appeal against the acquittal of the respondents for offences punishable under section 302 r/w. 34 of the Indian Penal Code, as recorded by the Adhoc Additional Sessions Judge, Latur by judgment dated 21.2.2009 in sessions case no. 67 of 2008. 2] The case of the prosecution rests principally upon the dying declaration alleged to 2 Cri.Appln.2057.2009 have been made by deceased Dattu to his mother Shamabai-P.W.3 and his son Satish-P.W.1. Poison is alleged to have been administered to the deceased on 3.3.2009 and the deceased succumbed to his injuries on 4.3.2009. Post-mortem came to be conducted by P.W.2 Dr. Chandrashekhar and one Dr. Patil who noticed that the deceased had died as a result of consumption of poisonous substance. The viscera was preserved and sent to the Chemical Analyzer but the Chemical Analyzer in his report exhibit 29 did not notice any poison in the viscera. The poison which is alleged to have been administered to the deceased Dattu was an insecticide. The trial Court found that the prosecution evidence insofar as it related to the possession of poison and the opportunity to administer the poison to the deceased Dattu were lacking and therefore, the chain of circumstantial evidence insofar as the respondents accused causing death of deceased Dattu was incomplete and therefore acquitted them. 3] In cases of deaths by poison it is well to remember what the Supreme Court stated in 3 Cri.Appln.2057.2009 Ramgopal V. State of Maharashtra AIR 1972 S.C. 656. At paragraph no.15 the Supreme Court says that in the case of death by poison, it is only when the motive is there and it is proved that the deceased died of the poisonous substance in question, that the accused had the poison in his possession and the opportunity to administer the poison in question to the deceased that the Court may be able to draw the inference that the poison was administered to the deceased resulting in his death. 4] In the present case, the only evidence is in the shape of dying declaration that the accused had administered the poison. The trial Court found that the first information report was filed against three unknown persons and one accused Balu. The evidence of P.W. 3 Shamabai and P.W. 1 Satish in respect of the alleged oral dying declaration was found by the Court to be inconsistent. The trial Court also commented upon the conduct of these two witnesses in not informing anyone about the declaration alleged to have been made by Dattu. The trial Court also 4 Cri.Appln.2057.2009 found that the statement made by the Investigating Officer that in the investigation it transpired that the deceased Dattu was admitted in the hospital and was unconscious was not in a position to speak, dealt a death blow to the prosecution case in respect of the oral dying declaration. Since there is no satisfactory evidence in respect of oral dying declaration, according to us there was no evidence against the respondents accused. There is no evidence that the accused were in possession of the poison or that they had any opportunity to administer the poison. 5] Since this is an Appeal against acquittal and the view taken by the trial Court is a possible view on the basis of evidence, we do not find any error in the reasoning of the trial Court. The present application is dismissed. Leave refused. Criminal Application stands dismissed. Sd/- Sd/- (A.V.NIRGUDE, J.) (P.V.HARDAS, J.) arp