1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 92 OF 1993 1. The State of Maharashtra appellant/orig. complainant. versus 1. Sk. Kadar s/o Sk. Rajjak, age 25 years, occupation: labourer, r/of Bada Bangala, Kannad, Taluka Kannad, District Aurangabad. 2. Sk. Harun s/o Sk. Rajjak, aged 35 years, occupation: Labourer, r/o Bada Bangala, Kannad, Taluka : Kannad, Respondents/ District : Aurangabad. orig. accused. ------- Shri N.R. Shaikh, A.P.P. for the appellant-State. Shri V. I. Thole, Adv. for Respondents (absent). -------- Coram: A. H. Joshi and A. R. Joshi, JJ. Date : September 7, 2011. Judgment : ( Per: A.H. Joshi, J. ) 1. Two accused, namely, Shaikh Kadar, the husband of deceased Akhilabee, and Shaikh Harun-the elder brother of Shaikh Kadar, were tried respectively for offences punishable under Sections 302 and 302 read with Section 109 of the Indian Penal Code, by the learned III Additional Sessions Judge, Aurangabad, in Sessions Case No.108 of 1992, and were acquitted by judgment and order dated dated 17.10.1992. 2 2. The case is that death of Akhilabee is by burning, it being homicidal. 3. The prosecution case rests on dying declarations. The two dying declarations are oral, given to two witnesses, namely, PW-2 Sardarbee-the mother of the deceased, and PW-5 Shaikh Pashu-the brother of the deceased. The dying declaration, which is at Exhibit 30,, is a written dying declaration recorded by PW-11 Rajendrasing Daudi. Exhibit 39 is also a written dying declaration recorded by PW-8 Dr. Sahebrao Nawal, in the process of admission of the deceased in the hospital, on 21.5.1991. Exhibit 20 is the dying declaration recorded by Special Executive Magistrate-PW No.7 Mr. Sk. Gafoor Sk. Amanulla on 21.5.1991 at 22.30 to 22.50 hours. 4. Perusal of testimonies of the witnesses, who recorded the dying declaration of the deceased, reveals total lack of unanimity and it exhibits gross diversions. 5. PW-11 Rajendrasing Daudi has admitted in the cross examination that while he was recording the dying declaration, all relatives from the maternal side of the deceased, were present. 6. The points on which there is variance in the dying declarations, can be summarized as follows:- 3 (1) Deceased does not involve accused No. 2 in some dying declarations. (2) She involves accused No. 2 as instigator. (3) She is silent as to the place of residence of accused No.2. (4) She does not explain role of PW-3, as well as of accused No.1, in the process of extinguishing fire. 7. The Medical Officer Dr. Nawal (PW-8), who has recorded the dying declaration, clearly admits that accused No. 1 was also brought for medical examination after his arrest, and he had sustained injuries to his palms, wrists and dorsal side. 8. PW-3 Ayyubkhan also suffered burn injuries. Accused No. 1 and PW-3 have suffered burn injuries in the process of extinguishing fire. 9. In none of the dying declarations, Akhilabee discloses that her husband made an effort to extinguish fire. 10. In the dying declaration (Exh.30), recorded by Police Constable, it is recorded that no one made efforts to extinguish the fire, and one of her relatives Mr. Iliyas took her to hospital. Mr. Iliyas was examined by prosecution as PW-1. He did not support the prosecution, rather says that Akhilabee was tutored to say against the accused. 4 11. In the given circumstances, only conclusion that emerges is that there is total lack of coherence in the evidence adduced by the prosecution. 12. In the result, no other conclusion can be drawn that the dying declarations are totally divergent and tutored and, therefore, in the absence of any other evidence for corroboration, it would be highly risky and dangerous to believe the evidence in the form of dying declarations, to convict the accused. 13. The background in which accused No. 2 is sought to be involved, is also wholly unjustifiable, as such involvement is totally unsupported by the evidence available. 14. Consequently, we record our concurrence with the view taken by the learned Sessions Judge, of acquittal. 15. We, accordingly, dismiss the appeal. (A. R. JOSHI, J.) (A.H. JOSHI, J.) pnd/criapl-92.93