1 Cri.Appln.No.4263/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4263 OF 2010 The State of Maharashtra ... APPLICANT VERSUS Khusrobegum w/o Hasif Ahmed Faruki and others ... RESPONDENTS ..... Shri N.H. Borade, A.P.P. for applicant Shri R.R. Shaikh, Advocate for respondents ..... CORAM : U.D. SALVI, J. DATED : 30th August, 2011. PER COURT : 1. Heard. Perused the application and record. 2. Leave to prefer an appeal against the judgment and order of acquittal under Sections 498-A, 306 read with Section 34 of the Indian Penal Code, 1860, passed by the learned Additional Sessions Judge-3, Beed, on 14.5.2010 in Sessions Case No. 33/2009 on 14.5.2010 is sought by the State. 3. One Naheda, the daughter of complainant Maktum Nabi Saheb Patel was given in marriage to the respondent/ 2 Cri.Appln.No.4263/2010 accused No.3 Saud Ahmed Hasif Ahmed Faruqi on 5.5.2008. Around 11.00 a.m. on 22.8.2008, Naheda got burnt in kitchen room at her matrimonial home. She was wearing parrot colour Punjabi dress. Her father-in-law, respondent No.2 Hasif and her husband, accused No.3 Saud Ahmed, on hearing her shouts, rushed to the kitchen room. Accused No.3 Saud Ahmed and accused No.4 Saadat Ahmed poured water on the person of Naheda and accused No.2, Hasif, her father-in-law wrapped her in a Chaddar and both of them extinguished the fire and removed Naheda to Civil Hospital, Beed. Around 1.00 p.m. on that day, the first dying declaration of Naheda came to be recorded by Police Naik Shankar Rathod. Second dying declaration came to be recorded by Taluka Executive Magistrate/ Naib Tahsildar around 1.45 p.m. on the same day. Finally, A.P.I., City Police Station, Beed recorded statement of Naheda at around 6.30 p.m. On all these occasions, medical officer on duty was consulted for getting his opinion as to the physical and mental competency of Naheda to give a statement. 4. Father of the deceased Maktum Nabi Saheb Patel in his complaint alleged that he had paid Rs.25,000/- and given domestic utensils to the bridegroom, and Naheda had revealed to him and other relatives about the harassment meted out to her by the accused for not giving fridge and cooler in the marriage. The complainant further alleged that Naheda was mortally threatened 3 Cri.Appln.No.4263/2010 with threat of putting her on fire; and that she was being beaten by her husband with kicks and blows. According to the complainant, some two months prior to the incident, Naheda was brought to his house by accused No.2 Hasif, and he was told that Naheda would not cohabit in future with accused No.3, and accused No.2 had thrown the amount paid to the bridegroom at the time of marriage at him; and some one month thereafter the husband of the deceased had taken back Naheda to matrimonial home on the assurance that she would not be subjected to any type of harassment. He further alleged that, he was telephonically informed by one Raeeskhan that Naheda was set on fire around noon time on 22.8.2008, and he happened to meet Naheda in Burn Ward at the Civil Hospital, Beed. At that time, Naheda revealed the story of beating and suicide, thereafter by burns. Post mortem examination of the body of deceased was performed on 27.8.2008, the day on which the deceased succumbed to the burn injuries at the Civil Hospital, Beed. Forensic investigation on the clothes of the deceased seized from the spot was carried out. The accused were charge sheeted and in due course, the trial against the accused commenced on framing of the charges under Sections 498-A, 306 read with Section 34 of the Indian Penal Code. 5. Witnesses including the complainant, panchas to the spot panchanama, relations of the complainant and the deceased, 4 Cri.Appln.No.4263/2010 carrier of the articles to Chemical Analyser, Mortician Dr. Radheshyam Jaju and the Medical Officer. Dr. Sunil Mastud were examined in support of the prosecution case. To substantiate the theory of accidental death of the deceased, the accused No.1 – mother-in-law of the deceased, Medical Officers – Dr. Wardhaman Kotecha and Dr. Murza Baig, Police Naik Shankar Rathod and Naib Tahsildar Abhay Mhaske were examined. 6. Perusal of the impugned judgment reveals that, the learned trial Court did consider the entire evidence and the submissions of the rival parties made at length and arrived at the conclusion that prosecution has failed to prove cruelty to the deceased and consequently the abetment of suicide. Learned trial Court, on considering the C.A. reports and the facts revealed from the spot panchanama and dying declarations about the apparel on the body of the deceased – parrot colour Panjabi dress, rightly observed that findings of the C.A. report revealing the detection of kerosene residues on pieces of sari were of no avail to the prosecution for substantiating the allegations of prosecution that the deceased had poured kerosene on her person for commission of suicide. Pertinently, the deceased was pregnant at the material time. Considering such facts revealed in the evidence, it was unlikely that she would be committing suicide and, therefore, the 5 Cri.Appln.No.4263/2010 learned trial Court’s finding that Naheda did not commit suicide but her death was accidental, cannot be faulted. 7. There is discrepancy in the dying declarations of the deceased recorded successively in short span of time. Dying declarations Exhibits 100 and 107, recorded by Police Naik and Naib Tahsildar respectively after obtaining certificates of the medical officer on duty regarding physical and mental competence of the deceased revealed that the clothes of the deceased namely Odhni of Panjabi dress accidentally caught fire and her father-in- law and husband had extinguished the fire, and the deceased had no grievance to make and accuse anybody regarding the injuries sustained by her. These dying declarations, though consistent with each other, conflict with the latter dying declaration (Exhibit 50), recorded by the A.P.I. as regards cause of burn injuries sustained by the deceased. Dying declaration (Exhibit 50), in contradiction to the previous dying declarations (Exhibit 100 & 107) reveals that the deceased was being harassed by her in-laws and husband for the reason of luxurious articles like fridge and cooler not being given to them at the time of her marriage, and out of frustration she had burnt herself by pouring kerosene on her Panjabi dress in the kitchen. However, it maintained, what could not be denied, that she was pregnant and her husband and her father-in-law had 6 Cri.Appln.No.4263/2010 extinguished the fire and removed her to the hospital. This dichtomy between the dying declarations was duly considered by the learned trial Court with reference to the judgment of the Apex Court reported in 2009 (1) Crimes 190 (Supreme Court) (Samadhan Dhudaka Koli Vs. State of Maharashtra); AIR 2007 SC 1368 (Sanjay. Vs. State of Maharashtra). Learned trial Court also gave thought to the other judicial decisions on the subject :- 2006 (4) Crimes 428 (Supreme Court) (Surender Vs. State of Haryana; 2006(2) Crimes 195 (Supreme Court) (Sahebrao Vs. State of Maharashtra); 2001 Cri. L.J. 1679 (Pawan Kumar Vs. State of Haryana); 2005(1) B.Cr.C. 507 (Bombay High Court) (Ganesh Yadavrao Bhutekar Vs. State of Maharashtra); 2009 All MR (Cri) 547 (Supreme Court) (State of A.P. Vs. M. Madhusudhan Rao); 2005(3) B.Cr.C. 55 (Kerala High Court) (Cyriac Vs. S.I. of Police) and 2008 ALL MR (Cri) 833 (Bombay High Court) (Sitabai @ Sevantabai Vs. State of Maharashtra) in context with the evidence on record. Possibility of innocence of the accused is not ruled out by the evidence on record. Judgment of the tial Court, therefore, deserves no interference. Leave is, therefore, refused. Application stands rejected. ( U.D. SALVI, J. ) fmp/cri4263.10