1 A-2458-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO. 2458 OF 2010 IN CRIMINAL APPEAL NO. OF 2010 The State of Maharashtra ..Applicant /Appellant versus Pramod Bhikaji Sawant & Anr. ..Respondents/Accused Mrs. A. S. Pai - Additional Public Prosecutor – for Applicant - State. CORAM : D. D. SINHA AND A. R. JOSHI, JJ. DATED : SEPTEMBER 16, 2010. P.C. : 1. Heard the learned Additional Public Prosecutor for State. 2. Criminal Appeal is directed against the judgment and order passed by the Sessions Judge -3, Kolhapur, dated 20th January 2010, whereby the respondents were acquitted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 2 A-2458-10 3. The learned Additional Public Prosecutor has submitted that in the instant case the trial court wrongly discarded the evidence of dying declaration made by the deceased Sarika. It is submitted that the incident had taken place on 16th October 2008 in the residential house of deceased. Deceased was the wife of accused no 1 - Pramod Sawant who also at the relevant time was residing in the same house. It is contended that first dying declaration of deceased was recorded on 16th October 2008 by the Police Head Constable. The second dying declaration was recorded on 17th October 2008 by the Special Executive Magistrate in the hospital. In the said dying declaration the deceased has implicated both the respondents in the crime in question. It is contended that the deceased has also mentioned in the second dying declaration as to why she could not disclose the incident in her first dying declaration. It is the case of the prosecution that the deceased could not disclose the incident correctly in the first dying declaration because of the pressure exercised on her by her husband i.e. accused no. 1 - Pramod Sawant. 4. The learned Additional Public Prosecutor has further contended that the third dying declaration of the deceased was recorded by the Special Executive Magistrate on 18th October 2008 in which she has not only implicated the respondents but also gave their names. It is contended that 3 A-2458-10 the incident disclosed by the deceased in this dying declaration was corroborated by the medical evidence, which shows that deceased died due to burn injuries. The post-mortem report shows that the deceased sustained 80% / 90% burns. The learned Additional Public Prosecutor therefore contended that the findings of acquittal recorded by the trial court in the light of evidence adduced by the prosecution are not sustainable in law. 5. We have considered the contentions canvassed by the learned Additional Public Prosecutor. In the instant case it is not in dispute that the incident had taken place on 16th October 2008, the first dying declaration of deceased Sarika was recorded by Police Constable on the same day i.e. on 16th October 2008, in which she has not stated anything against the present respondents. The second dying declaration of deceased was recorded on 17th October 2008 wherein the deceased though stated that while she was in her bathroom two people came there, gagged her mouth with cloth, poured kerosene on her person and set her on fire. However, in this dying declaration also she has not given the names of the persons responsible for causing burn injuries to her. The third dying declaration of the deceased was recorded on 18th October 2008 in that for the first time deceased has mentioned the names of the respondents as persons responsible for setting her on fire. The above referred evidence relating to dying declarations 4 A-2458-10 would show that conflicting and inconsistent version is coming forward from the deceased. At the first instance deceased did not involve the respondents – accused, in the second dying declaration also she has not mentioned the names of the persons responsible for causing her burn injuries and for the first time in the third dying declaration she has mentioned the names of the present respondents. It is in these circumstances the trial court has rightly held that evidence on dying declarations is not reliable. 6. Even otherwise the P.W. 1 Ishwar (neighbour) shows that deceased after her clothes caught fire came out of the house and was shouting. This witness along with his brother came on the spot. The brother of this witness extinguished fire. This witness thereafter went to the office of the husband of the deceased, viz. accused no.1, informed him about the incident. Accused no.1 came on the spot and took his wife deceased Sarika to the hospital. It is pertinent to note that the case of the prosecution disclosed by this witness in his examination-in-chief clearly shows that at the relevant time accused no. 1 – Pramod was not present in the house and therefore the deceased in her first dying declaration did not tell the name of the assailants. 7. Taking into consideration the totality of the evidence of the 5 A-2458-10 prosecution, we are of the view that the findings of acquittal recorded by the trial court are just and proper, needs no interference. Criminal application for leave to appeal and criminal appeal, both, are dismissed. (D. D. SINHA, J.) (A. R. JOSHI, J.)