1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.2794 OF 2009 The State of Maharashtra ... APPLICANT VERSUS Anappa s/o Sidram Chavan & anr. ... RESPONDENTS ----- Shri K.B. Choudhari, A.P.P. for the applicant/State ----- CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 7th October, 2009. Date of reserving order : 30th September, 2009 Date of pronouncing order : 7th October, 2009 ORDER (PER DAVARE, J.): 1. Perused. Heard Shri K.B. Choudhari, learned A.P.P. for the applicant/State. 2 2. By the present application, the applicant/State has sought leave to file the appeal against the acquittal under Section 378(1)(b) of the Code of Criminal Procedure and action under Section 390 of the Code of Criminal Procedure against the respondent Nos.1 and 2 herein. 3. The factual matrix are that, the respondent No.1 Anappa s/o Sidram Chavan is the husband of deceased Anusaya and respondent No.2 Gangabai w/o Anappa Chavan is the first wife of respondent No.1. The deceased Anusaya was the second wife of respondent No.1. The marriage of respondent No.1 and deceased Anusaya took place in the year 1993. It is alleged that, children of respondent No.1 begotten from his first wife i.e. respondent No.2 expired in an earthquake. So, respondent No.1 performed second marriage with deceased Anusaya. It is alleged that, respondent Nos.1 and 2 started ill-treating Anusaya after 1 ½ years to 2 years from the marriage. According to the prosecution, on 29.7.2007, at about 9.00 p.m., the accused assaulted Anusaya with fist and kick blows and poured kerosene on her person and set her ablaze. The victim sustained 69% burns. In all four dying declarations of the victim were recorded and thereafter she succumbed to the burn injuries and expired on 12.8.2007. 3 4. The respondent Nos.1 and 2 were charged and tried under Sections 498-A and 302 read with Section 34 of the indian Penal Code and were acquitted from the said charges by the learned Adhoc Additional Sessions Judge, Latur in Sessions Case No. 123/2007 by way of judgment and order rendered on 28.4.2009. Being aggrieved by the said judgment and order of acquittal, the applicant/ State has preferred the appeal and prayed for leave to file appeal as aforesaid. 5. To substantiate the charges levelled against the accused, the prosecution has examined inasmuch as 13 witnesses. We have perused the oral and documentary evidence adduced and produced by the prosecution and more particularly the four dying declarations of the deceased as well as perused the medical evidence tendered by the prosecution on record and also perused the statements of the accused Nos.1 and 2 recorded under Section 313 of the Code of Criminal Procedure and also perused the judgment and order dated 28.4.2009 in Sessions Case No.123/2007 and observations made and conclusions drawn therein. 6. Coming to the dying declarations of the deceased, the 4 first dying declaration (Exh. 42) was recorded by Police Head Constable P.W. 10 Survase on 30.7.2007, wherein the victim stated that the accused persons abused her and, therefore, she was unable to control her anger and hence, poured kerosene from the chimney on her person and set ablaze herself by igniting the match stick and thereby sustained the burns. The next dying declaration (Exh. 50) was recorded by S.E.O. Garoba Suryawanshi (P.W.11) on 30.7.2007 which also discloses that the accused persons abused her and tortured her mentally and thereupon she got angry and she poured kerosene from the can on her person out of the anger and set herself ablaze by burning chimney and thereby sustained burns. The third dying declaration (Exh. 35) was recorded on 31.7.2007 by P.S.I. Sayeed Ibrahim (P.W.5), wherein the victim Anusaya involved the accused persons and stated that the accused No.2 i.e. respondent No.2 poured kerosene from the can on her person and both the accused set her on fire by match stick and thereby she sustained burns. The fourth dying declaration (Exh. 67) was recorded on 31.7.2007 by S.E.O. Subhash Kakde (P.W.13), wherein also she raised finger against accused persons and involved them in the offence stating that both the accused persons caught-hold of her and poured kerosene on her person and set her ablaze. 5 7. Accordingly, it is apparent that first two dying declarations in point of time were recorded on 30.7.2007 i.e. (Exh. 47) and (Exh. 50) which do not involve the accused in the alleged offence, whereas later two dying declarations i.e. (Exh. 35) and (Exh. 67) recorded on 31.7.2007 involved the accused persons in the alleged offence and accordingly, the contents of first two dying declarations are contradictory to the contents of later two dying declarations and hence, create suspicion in respect of role of the respondents in the alleged occurrence of the incident. 8. That takes us to the evidence of P.W.1 Dr. Shridhar Pathak and post mortem notes (Exh. 18) which disclose that the victim sustained 69% burns and the cause of her death is septicemia due to superficial to deep burn injuries 69%. 9. We have also perused the statements of the accused persons recorded under Section 313 of the Code of Criminal Procedure, wherein they have categorically stated that the deceased Anusaya sustained burns due to fall of chimney and succumbed to the said injuries and expired and they have further stated that the dying declarations of the deceased were fabricated by Durgadas Bandgar and his wife and father of deceased Anusaya and her 6 cousin and another relatives falsely. They further stated that initially deceased Anusaya was able to talk in the hospital and she stated that she sustained burns due to fall of chimney, but thereafter she was unable to speak and, therefore, the aforesaid persons fabricated her subsequent dying declarations falsely. They further stated that, after the occurrence of the said incident, a demand of Rs.2 Lacs and return of children of Anusaya was made to them to which they declined and, therefore, false complaint was lodged against them. Accordingly, the accused persons availed the opportunity, and apparently, gave the explanation in the statements recorded under Section 313 of the Code of Criminal Procedure in respect of the occurrence of the incident. 10. Having the comprehensive view of the matter, and after considering the submissions advanced by learned A.P.P. for the State anxiously, we are of the considered view that there are discrepancies, infirmities and lacunae in the prosecution case and the contents of dying declarations of deceased are contradictory to each other as aforesaid and the learned trial Judge has rightly concluded and acquitted the accused persons from the charges levelled against them and no interference therein is warranted in the appellate jurisdiction and hence, we are of the opinion 7 that this is not a fit case to grant leave to applicant/State to file appeal against the respondents. Hence, leave to file appeal against the respondents stands refused. 11. Record and proceedings be sent back to the trial Court forthwith. [ SHRIHARI P. DAVARE, J.] [ NARESH H. PATIL, J.] fmp/cri2794.09