1 Cri.A.1443.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1443 OF 2010 The State of Maharashtra, Through: Sayyad Abdul Rahim Mahmad, Age: 50 Years, Occup. Business, R/o Osmanabad, District Osmanabad. ...APPLICANT. VERSUS 1. Sairabee Ismail Sayyed Age : 50 Years, Occup. Nil, R/o Khaja Nagar Osmanabad. 2. Javed Iqbal Kazi, Age: 25 Years, Occup.: Nil, R/o Farshi Galli, Osmanabad District Osmanabad. ...RESPONDENTS. ... Shri.V.G.Shelke,APP for Applicant-State. Shri.V.B.Deshmukh,Advocate for Respondents. ... CORAM: SHRIHARI P.DAVARE, J. DATE : 29TH APRIL, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicant-State, seeking leave to file an appeal, challenging the Judgment and Order dated 18th 2 Cri.A.1443.10 December, 2009, rendered by Ad-hoc Additional Sessions Judge, Osmanabad, in Sessions Case No. 39 of 2009, thereby acquitting the respondents (original accused) for the offences punishable under sections 294, 504 and 306 read with section 34 of the Indian Penal Code. 3. I have perused the record and proceedings, as well as impugned Judgment and order dated 18th December, 2009 with assistance of the learned counsel for the parties, and also considered the submissions advanced by the the learned counsel for the parties. Briefly stated facts of the case are that: 4. Accused Nos.1 and 2 are neighbourers of the complainant, namely, Abdul Rahim sayyad and victim Humera was daughter of said complainant. It is alleged that prior to occurrence of the incident i.e. committing suicide by victim Humera, accused No.1 and 2 went to the house of said victim Humera at about 11.00 a. m. on 06.07.2008, and asked her 3 Cri.A.1443.10 why she talked with son of Sairabee (Accused No.1), namely, Raju Painter, and abused the victim in filthy language like “rq /kank m?kMqu clyh vkgsl] rq>k cki HkkM [kkrks] rq ukldh vkgsl-, and therefore, victim Humera got mental shock and out of anger she poured kerosene on her person and set herself ablaze. Two dying declarations of deceased Humera were recorded i.e. first at (Exh. 29) by Police Head Constable Dattatrya Jadhav(P.W.5) on 06.07.2008 at 12.00 noon, and another dying declaration(Exh.33) by Special Executive Magistrate Khalil Qureshi(P.W.6) between 01.15 to 02.20 p.m. On 06.07.2008. However, ultimately Humera succumbed to the injuries on 08.07.2008 at 8.30 p.m., and thereafter, First Information Report came to be lodged on 09.07.2008. 5. To substantiate the charges levelled against the accused, the prosecution has examined in as much as nine witnesses, namely, Sayed Abdul Rahim Mahmad(P.W.1)-complainant and father of victim Humera, Sayyed Mohmad Khalid(P.W.2) brother of the 4 Cri.A.1443.10 victim-Humera, Khatoonbee Ratan Shaikh(P.W.3) landlord of the house of the complainant, Dadasaheb Suraybhan Andhare(P.W.4)Police Constable carrier of the muddemal articles to handover it to C.A. Office, Dattatrya Baliram Jadhav(P.W.5)Head Contable, who recorded first dying declaration of the victim at Exh.29, Dr. Khalil Gafoor Qureshi(P.W.6) Special Executive Magistrate, who recorded second dying declaration of the victim at Exh.33, Mahadeo Tukaram Garad(P.W.7)A.S.I.-First Investigating Officer, Dr. Jyotsana Avinash Taware (P.W.8) Medical Officer, who examined the deceased-Humera at the time of recording both dying declarations and gave medical treatment to her, and Jagannath Dnyandeo Kalaskar (P.W.9)API, another Investigating Officer. 6. According to P.M. Notes (Exh.19) the cause of the death of deceased is “due to cardial arrest due to septicemic shock, due to 98% superficial to deep burn”. However, it appears that prosecution has not examined the Doctor, who carried out the 5 Cri.A.1443.10 Post Mortem on the dead body of deceased Humera. Moreover, although incident occurred on 06.07.2008, the First Information Report came to be lodged on 09.07.2008, after delay of three days, and the learned trial Court also observed that the prosecution has not explained three days delay satisfactorily, which creates doubt about the prosecution case, although two dying declarations were recorded on 06.07.2008, and apparently there is no flaw in the said reasoning. 7. As regards first dying declaration (Exh.29) and second dying declaration (Exh.33), the victim Humera does not whisper about name of mother of Raju Painter, stating that she does not know her name. It is noticed, although accused No.1 was allegedly neighbour of the deceased Humera, how she did not know the name of the accused No.1. There is reference to alleged chits accepted by the deceased Humera from Raju Painter, in first dying declaration, but there is no whisper about same in the second dying declaration. The first 6 Cri.A.1443.10 dying declaration was recorded by Head constable Shri Dattatrya Jadhav, who admitted in the cross examination that father of victim Humera was present near her bed, but other relatives of victim Humera were not present near her bed, and therefore, it creates suspicion in respect of recording of first dying declaration(Exh.29). 8. Besides, Dr. Jyotsana Taware(P.W.8) admitted in her cross examination that pain killers given to patient, are sedatives and the medical treatment was started since she was admitted, injection fortwin was given to patient, which was sedative, and therefore, apparently from the evidence of this witness and medical papers, which are filed on record that when deceased Humera was brought to hospital, various injections were given to her, one of which was fortwin. According to the witness, fortwin was sedative and same was given to the patient to give relief from pains. According to Medical Officer, effect of fortwin takes place within five minutes, if it was given 7 Cri.A.1443.10 intravenous and effect of fortwin sedative remains for two hours and number of medicines were given to Humera, and hence, learned trial Court observed that this fact is reflected from medical case papers before recording Humera’s dying declarations and considering her condition, it is very difficult to hold that deceased Humera had given such lengthy dying declaration (Exh.29) before Dattatrya Jadhav(P.W.5), Head Constable, and another dying declaration (Exh.33) before Khalil Qureshi(P.W.6) Special Executive Magistrate. Moreover, it is apparent from the testimony of Special Executive Magistrate and other material available on record that, the Medical Officer Jostana Taware had not examined deceased Humera prior to and after recording of her dying declarations (Exhs. 29 and Exh.33). Both the said dying declarations were recorded at the instance of father of Humera, and hence, learned trial Court observed that there are infirmities in both the said dying declarations and same are not free from doubts, and reasoning adopted therefor 8 Cri.A.1443.10 cannot be faulted with. 9. Moreover, considering the totality of the evidence on record, learned trial Court observed that prosecution has not adduced any evidence on the point of Sections 294 and 504 of the Indian Penal Code, as well as no evidence is adduced on record that accused persons had abetted or instigated Humera to commit suicide, and consequently came to the conclusion that prosecution failed to prove the charges levelled against the accused beyond reasonable doubt. 10. In the circumstances, view adopted by the learned trial Court, while acquitting the accused, is a possible view, after assessing and analyzing the evidence on record, and same cannot be construed as perverse, and hence, no interference therein is warranted, in the appellate jurisdiction. Therefore, present application seeking leave to file appeal bears no substance and same deserves to be rejected. 9 Cri.A.1443.10 11. In the result, present application, which is sans merits, stands dismissed and leave to file appeal is refused. 12. Record and Proceedings be sent back to the concerned Court. 13. Present application stands disposed of accordingly. Sd/- [SHRIHARI P.DAVARE, J.] MTK