1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Application No.3960 of 2007 IN Criminal Appeal No. of 2007 The State of Mah. .. .. Applicant (Orig. Complainant) v/s. Riyaz Siraj Inamdar & anr. .. Respondents (Orig.Accused Nos.1 & 2) Mr.Konde-Deshmukh, APP for Applicant. Mr.Vikas Shivarkar for Res.No.2. ---- A N D Criminal Revision Application No.486 of 2007 Smt.Mainawati Maruti Waghmare .. .. Petitioner v/s. Shri Riyaz Siraj Inamdar & anr. .. .. Respondents (Orig.Accused Nos.1 & 2) Ms.Jayashri Akolkar for Petitioner. Mr.Konde-Deshmukh, APP for Res.No.3. ----- CORAM : B.H. MARLAPALLE & SMT.ROSHAN DALVI, JJ. Dated : 17th August, 2009 P.C. : 1.Heard Mr.Konde-Deshmukh, learned APP. 2.In Sessions case No.395 of 2006, both the Respondents 2 were on trial for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code ( IPC for short). 3.As per the prosecution case, accused No.1-Riyaz Inamdar was an unmarried person and he had an illicit relationship with Respondent No.2, the wife of the deceased-Sanjay Waghmare. In the night of 27th February 2006 along with the family of the deceased i.e. the deceased, his wife and two daughters, accused No.1-Riyaz as well as P.W.2-Pratap were sleeping in his house and the deceased-Sanjay did not like the same. As per the defence, the deceased was unemployed and the family was surviving on the earning of accused No.2 i.e. his wife, the deceased used to quarrel and physically assault accused No.2 and, therefore, she was scared to be alone in the company of the deceased along with her daughters, aged 16 and 9 years, respectively. In the early morning of 28.2.2006, the incident took place and the deceased sustained burn injuries of about 97%. He was shifted to the hospital at Ghodegaon and thereafter to the Sassoon hospital at Pune. C.R. No.11 of 2006 for the offence under Section 307 read with Section 34 of IPC was registered. When he was shifted to the Sassoon hospital, he was sought to be transferred to the Surya hospital and at 3.10 p.m. his dying declaration at Exhibit-24 was recorded in which 3 he stated that he received burn injuries accidentally. As per the prosecution case, P.W.4-Dr.B.V. Patil was treating the deceased at Surya hospital and at about 4 p.m. on the same day, the deceased wanted to make a fresh statement. He, therefore, requested the Medical Officer to record the same. P.W.4 recorded the statement of the deceased and the same was treated as an FIR at Exhibit-25. As per this statement, accused No.2 poured kerosene on the deceased and accused No.1 ignited the match stick and that is how the deceased received burn injuries. While under treatment, he died in Surya hospital. 4.The prosecution examined in all six witnesses. P.W.2- Pratap, who claimed to be an eye witness, was declared hostile. P.W.3-Sunil is the brother of the deceased. P.W.4 is Dr.Patil and P.W.5 is Dr.Shankar Kapse, who was examined to prove the documents at Exhibit-29. 5.On consideration of the evidence placed before him, the learned Sessions Judge at Pune acquitted the accused mainly because the dying declarations were contradictory to each other. Looking at the medical case papers maintained at the Surya hospital and the fact that the deceased was shifted from Sassoon hospital to Surya hospital at the instance of his elder brother who is the Superintendent of Police and in 4 addition to the efforts admittedly taken by P.W.4 to visit Sassoon hospital along with the team of Police and having brought the patient in Surya hospital, it was clear that the document at Exhibit-25 was suspicious and unreliable. 6.We have seen the record and proceedings. We have heard Ms.Akolkar, learned Counsel for the Petitioner in Criminal Revision Application No.486 of 2007. We have also perused both the dying declarations i.e. Exhibits 24 and 25 as well as the medical papers collectively at Exhibit-27. Exhibits 24 and 25 are written in the same handwriting and in fact, P.W.4 is a witness to Exhibit-24 and it is recorded while the deceased was under treatment at the same hospital. Exhibit-25, the second dying declaration, has been recorded while P.W.3 was present all along with the deceased and the same has been signed by P.W.3 as a witness. The reasoning set out by the learned Sessions Judge in discarding Exhibit-25 cannot be said to be erroneous. At the same time, the learned Sessions Judge also considered the medical papers maintained at Surya hospital and in none of the papers, it could be read that P.W.4 was the attending doctor on the deceased while he was under treatment until he died. The prosecution did not bring on record the medical papers at the Ghodegaon hospital as well as at the Sassoon hospital. Two daughters of 5 the deceased were also not examined, though they claimed to be present in the house where the incident had taken place. We, therefore, do not find any case is made out to grant leave to appeal under Section 378(3) of the Criminal Procedure Code as the reasoning set out by the learned Sessions Judge in support of the order of acquittal does not call for any reconsideration at our hands. 7.Hence, leave to appeal is refused and consequently, Criminal Revision Application No.486 of 2007 also stands rejected. [SMT.ROSHAN DALVI, J.] [B.H. MARLAPALLE, J.]