1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRI.APPLICATION NO.3785 OF 2008 IN CRI. APPEAL NO.727 OF 2008. (STATE OF MAHARASHTRA. Vs SUBHASH DAGDUJI DHOLE, SAU.SUREKHA MITKAR & SAU.ASHABAI S. DHOLE) _____________________________________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders ______________________________________________________________________________________________ Shri S.S. Doifode, A.P.P. for State. Shri Amol Darekar h/f. Shri A.V.Gupta, Advocate for respondents. CORAM : A.H.JOSHI & R.C.CHAVAN, JJ. DATED : JANUARY 28, 2009. 1. This is an appeal against acquittal by the State. 2. Accused were charged for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 2. The prosecution case rests on Dying Declaration recorded by Executive Magistrate Shri Prakash Patil, thereafter by Investigating Officer P.W. 10 API Mohammed Afzal and oral dying declaration given to brother of the deceased. 2 3. The learned Sessions Judge has, by discussion in paragraph 16, the grounds as to why the dying declaration recorded by the Executive Magistrate cannot be relied upon. 4. The grounds, interalia, are that the deceased was not in a position of health and mind to give statement. The burn injuries by petrol are contrary to the evidence. The location of the incident also differs. 5. In the background that the Dying Declaration, recorded by the Executive Magistrate was already on record, the learned Sessions Judge found that there was no reason or propriety for the Investigating Officer to again record dying declaration. 6. Oral Dying Declaration given to brother by the deceased has also been disbelieved on the ground of contradictions. 7. In these premises, the judgment of the learned Sessions Judge, acquitting the accused persons, is not shown to be perverse or without taking into account any material piece of evidence. 3 8. In these circumstances, we find that there is no case for grant of any indulgence in the appeal against acquittal. 9. Leave refused. Appeal dismissed. JUDGE JUDGE RR.