1 cri-apln-2900-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPLICATION NO. 2900 OF 2010 The State of Maharashtra ..Applicant Vs. Ganesh Dattatraya Potle and Ors. ..Respondents .... Mrs. M.H.Mhatre Additional Public Prosecutor for State .... CORAM : D.D.SINHA AND SMT.V.K.TAHILRAMANI, JJ. DATE : DECEMBER 01, 2010 P.C.: 1 Heard the Additional Public Prosecutor for the State. The State has filed this application seeking leave against the judgment and order of acquittal dated 16.5.2009 passed by Ad-hoc Additional Sessions Judge, Nashik whereby the respondents came to be acquitted of the offences punishable under Sections 498-A and 302 read with Section 34 of the Indian Penal Code. 2 The Additional Public Prosecutor has submitted that the entire 2 cri-apln-2900-10 prosecution case is based on two dying declarations i.e. Exhibit-31 and Exhibit-34 made by deceased, which were recorded by the Executive Magistrate P.W. 5 Ashok Ozarkar and P.W. 6 Ganesh Satpute respectively. The Additional Public Prosecutor has contended that it is no doubt true that the deceased in the dying declaration has stated that she was illtreated by the respondents, she poured kerosene on her person and set herself on fire, however, in the second dying declaration which was recorded by the Magistrate, it is specifically stated that her husband respondent no.1 poured kerosene on her person and set her on fire. It is therefore, contended that merely because the deceased did not implicate the respondents specifically so far as the fact of pouring kerosene on her person and setting her on fire, that by itself is not sufficient to discard the second dying declaration where the deceased has implicated the respondent no.1. It is therefore, submitted that the order of acquittal is unsustainable in law. 3 Considered the contentions canvassed by the Additional Public Prosecutor and perused the impugned judgment and order passed by the trial Court. In the instant case, the first dying declaration was recorded by the Magistrate on 27.1.2007 i.e. almost immediately after the incident had taken place. The deceased in the said dying 3 cri-apln-2900-10 declaration has completely exonerated all the respondents and did not allege anything against any of them, except a general remark that the respondents used to illtreat the deceased and therefore, she has poured kerosene on her person and set herself on fire. 4 So far as the second dying declaration is concerned, it has come on record that at the relevant time, the mother of the deceased was present and therefore, the possibility of falsely implicating the respondents is not ruled out by the prosecution in the present case. 5 Considering the text of both the dying declarations, we are of the view that the trial Court was justified in acquitting the respondents of the offences charged. Appeal suffers from lack of merits. Leave refused. Appeal dismissed. [ D.D.SINHA, J.] [ SMT. V.K.TAHILRAMANI, J.]