1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, AT NAGPUR CRI. APPLICATION (APPA) NO.349 OF 2011 IN CRI. APPEAL NO. ______/2011 (State of Maharashtra ..vs.. Balu @ Balkrushna s/o Jagannath Adhe) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri T.A. Mirza, APP for the applicant-State. CORAM : MRS. V.K. TAHILRAMANI AND M.L.TAHALIYANI, JJ. DATE : 24-06- 2011 . The applicant-State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 05-3-2011 passed by the learned Additional Sessions Judge, Akot, District Akola in Sessions Trial No.1/2010, whereby the respondent-original accused came to be acquitted of the offence punishable under Section 302 of the Indian Penal Code. 2. The prosecution case briefly stated is as under :- Savita was residing in village Dhanori, Tahsil- Akot, District-Akola. Though Savita was a married woman having a daughter, she was residing with her parents. The respondent-accused was residing two houses away from her house. The accused had cut the electric wire thereby disconnecting the electricity supply in the house of Savita. On 23-8-2009 at about 5.00 p.m., Savita went in front of the house of accused and asked him why he had cut the electricity supply of her house. Thereupon, the accused caught hold of her hair and assaulted her. He pulled her 2 inside his house, poured kerosene on her person and set her ablaze. Savita rushed outside his house. She was lying on the road. Savita was completely burnt. P.W.2-Pushpa brought a blanket from her house and placed it on Savita. Thereafter, Savita was taken to hospital. In the hospital, two dying declarations of Savita came to be recorded. One dying declaration (Exh.38) came to be recorded by Executive Magistrate P.W.5-Madankar on 23-3-2005 at 9-00 p.m. and second dying declaration (Exh.42) was recorded at 11.30 p.m. by P.W.6-PSI Prakash Akotkar. The dying declaration was treated as F.I.R. Savita died on 27-8-2009 at about 8.15 a.m. Thereafter the offence was converted into Section 302 of the Indian Penal Code. After completion of investigation, the charge-sheet came to be filed. 3. Charge came to be framed against the respondent- accused for the offence punishable under Section 302 of the Indian Penal Code. The respondent pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. The further defence of the respondent is that Savita was of quarrelsome nature. She used to threaten to commit suicide. Prior to that, her husband and daughter had committed suicide. On the day of incident, Savita committed suicide by setting herself on fire. The respondent went to extinguish the fire, on account of which, the respondent sustained burn injuries and he was admitted in hospital for a number of days. After going through the evidence adduced in this case, the learned Sessions Judge acquitted the respondent, as stated in paragraph 1 above, hence, this application for leave to file appeal. 3 4. We have heard the learned Assistant Public Prosecutor for the applicant-State. We have perused the judgment and order passed by the learned Sessions Judge as well as evidence in this case. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that no case is made out for granting leave to file appeal. 5. The prosecution case is mainly founded on two dying declarations (Exhs. 38 & 42). As far as the dying declarations are concerned, both the dying declarations show clear thumb impressions of Savita. The ridges and curves are clearly seen therein. It is pertinent to note that Savita sustained 98% burn injuries and the evidence of P.W.4-Dr. Ingle shows that the thumbs and fingers of hands of Savita were completely burnt. In such case it is difficult to believe that the thumb impressions on the dying declarations were of Savita. It is also to be noted that P.W.2-Pushpa, who is the sister-in-law of the deceased, has clearly stated that she along with other relatives were present with the deceased throughout the night. The police had come there and they recorded the statement of deceased in their presence. So also, the Executive Magistrate had recorded the statement of deceased in their presence. Thus, it is seen that when the dying declarations were recorded, Savita was surrounded by her close relatives. This fact would again affect the veracity of the dying declarations. 6. In relation to the dying declarations, there is another aspect which we would like to advert to, in the dying declarations Savita has stated that the accused had set her on fire. However, the bed-head-ticket (Exh.48) of Savita shows 4 history of accidental burns. In fact, in the case papers relating to Savita, history of accidental burn is recorded at three places. Moreover, it is noticed that both the dying declarations are inconsistent. Savita has given different stories in both the dying declarations in relation to genesis of the incident. This fact also reduces the worth of the dying declarations. 7. It is the specific case of the prosecution that the accused caught hold of hair of Savita and pulled her inside his house, he then poured kerosene on her and set her on fire. However, no kerosene residues were detected in the house. In the house, not only no residues of kerosene were found, but there was also no smell of kerosene in the house to indicate that kerosene was used nor is there any evidence to show that any kerosene was detected on the clothes of the accused. These facts raise doubt in the mind about the prosecution case. 8. It is the prosecution case that immediately after Savita was picked up from the spot, she was first taken to the police outpost and thereafter to the hospital. The station diary entry of the outpost recorded at 6.45 p.m. on 28-3-2009 shows that Savita was brought in burnt condition to the outpost. At that time, no complaint of any cognizable offence was filed by anybody. It is noticed that even when Savita was lying injured, many people had gathered at the spot of incident at that time. Savita did not disclose to anybody about the incident nor her sister-in-law-P.W.2-Pushpa disclosed anything about the incident to anyone. 9. Though brother and father of Savita were present 5 when Savita was taken to the hospital, they have not been examined. Only P.W.2-Pushpa-sister-in-law of Savita, has been examined. The statement of P.W.2-Pushpa has been recorded belatedly. She states that Savita had given oral dying declaration to her stating that accused had set her on fire. However, though P.W.2-Pushpa was the first person to reach the spot and according to her, Savita had disclosed to her about the incident, P.W.2-Pushpa did not disclose about the incident to anyone who had gathered on the spot including the brother and father of Savita. P.W.2-Pushpa was present with Savita right from the time Savita was covered with blanket and taken to the police outpost and thereafter to the hospital. P.W.2-Pushpa has categorically admitted that before her statement was recorded by the police, she did not disclose about the oral dying declaration made to her by Savita to anybody. We have already observed that her statement was recorded belatedly . No plausible explanation for the delay has been furnished by the prosecution which makes her evidence further doubtful. 10. The defence of the accused is that Savita had committed suicide and taking advantage of the same, he has been falsely implicated. We find the defence taken by the accused is substantiated by the evidence of P.W.1-Ganesh. Ganesh has stated that it is true that it was noticed that Savita had committed suicide. He has stated that Savita was of quarrelsome nature and prior to this incident the husband and daughter of Savita had committed suicide and Savita used to threaten people that she would commit suicide. 11. The learned Sessions Judge has taken into consideration all the above aspects as well as other aspects in 6 this case and thereafter acquitted the respondent-accused. We may make useful reference to a decision of the Supreme Court in State of Uttar Pradesh .vs. Dinesh (2009) 3 Scale, 345 wherein, in a case of appeal against acquittal, it was held that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the findings of acquittal recorded by the trial Court. 12. Looking to the evidence on record, we find that the view taken by the learned Sessions Judge is a reasonable and possible view. Looking to the evidence on record, the application for leave to file appeal is rejected, consequently the appeal is dismissed. JUDGE JUDGE pma