1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 609 OF 2010 The State of Maharashtra ...Applicant Versus Pandurang Bhagwan Kanade ...Respondent ..... Mr. N.R. Shaikh, A.P.P. for the applicant-State. Mr. V.P. Deshmukh with Mr. M.B. Kolpe, advocate for the respondent ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATED: 11TH JUNE, 2010 PER COURT:- 1 The respondent had been tried for the offence punishable under Sections 302 and 498-A of I.P.C. It was Sessions Case No. 95 of 2008. On behalf of the prosecution, around 12 witnesses were examined to bring home the charge levelled against the respondent- original accused. The trial Court, after hearing the parties and after appreciation of evidence, acquitted the respondent for the offence, with which he was charged and tried. It is this judgment and order of acquittal, recorded by the learned Principal District and Sessions Judge, Osmanabad dated 11.11.2009, in Sessions Case No. 95 of 2008 is challenged on behalf of the prosecution. Leave to file appeal 2 under section 378 of Cr.P.C. by this application is sought for. 2 With the assistance of learned counsel appearing for the parties, we have seen the oral as well as documentary evidence. Entire case is based on oral as well as written dying declarations recorded on behalf of the prosecution. According to the prosecution, occurrence has taken place on 8.5.2008, around 12.30 a.m. (midnight). Vandana, deceased wife of respondent, at that time, was in fast sleep at her residence. According to the prosecution, respondent husband was suspecting her character, poured kerosene on her person and set her on fire. The incident had taken place at village Kakramba. According to the prosecution she was rushed to the primary Health Center at Tuljapur by respondent-husband. From the evidence of P.W.8 Mr. Nasir Khan Sayad, it appears that he was working as police Head Constable on 8.5.2008 and was deputed at police out post, Civil Hospital Osmanabad. On 8.5.2008, at about 10.00 a.m. in the morning, he received medical case report from the Medical Officer. The report informed him that Vandana Pandurang Kanade was admitted in the hospital in Osmanabad for treatment as burnt patient. The said report is at Exh.29. With the assistance of learned counsel appearing for the parties, we have seen the original report Exh.29 proved in the evidence of P.W.8 Sayyad. This report is under the signature of Duty Medical Officer, Government Medical Hospital Osmanabad. The date mentioned as 8.5.2008 and time appears from 3 this communication is 2.30 p.m. (noon time). Thus from the evidence of P.W.8 and communication Exh.29, it is clear that the information of sustaining burn injuries by deceased Vandana was reported by Exh.29 on 8.5.2008. The time of this report is most important in the case on hand, as the time is mentioned as 2.30 p.m. It appears that at the relevant time one Mr. Dr. Mortale, was Duty Medical Officer. 3 We have seen the evidence of Dr. Mortale, P.W.2, Exh.13. From this document, it appears that at the relevant time, i.e. on 8.5.2008, he was working as Medical Officer in Civil Hospital, Osmanabad. He was Duty Medical Officer in between 8.00 a.m. to 2.00 p.m. According to him, he received information from the police Officer, outpost police Civil Hospital Osmanabad that patient Vandana had suffered burn injuries and was admitted into the ward meant for burnt patient. Mr. Mortale, Medical Officer, accompanied the police Officer i.e. P.W.8 Mr. Sayyad, examined Vandana and found that she was in a position to make the statement. He had also made such endorsement at Exh.30 i.e. on the dying declaration of deceased Vandana. His evidence further states that after examining Vandana, he made necessary endorsement that the patient was capable of giving statement. His endorsement is specifically exhibited at Exh.14. This dying declaration is recorded by P.W.8 Mr. Sayyad. According to the prosecution the dying declaration recorded is exhibit Exh.30. We have seen the dying declaration Exh.30. Deceased Vandana has 4 alleged in her dying declaration that her husband was suspecting her character. Therefore, at 12.30 (midnight) on 8.5.2008 he poured kerosene on her person and set her on fire. According to him, at that time she was in the house at Kakramba. 4 Mr. Shaikh, learned A.P.P. points out endorsement made by P.W.2 Dr. Mortale. Learned counsel for the respondent points out time of recording of dying declaration. From this document Exh.30 it appears that recording of dying declaration was started at 11.15 a.m. and completed at 11.30 a.m. (morning). It is argued on behalf of the respondent that if the communication at Exh.29 is received at 2.30 p.m. (afternoon) on 8.5.2008 it was not possible for the prosecution to record the dying declaration of deceased Vandana in between 11.15 a.m. To 11.30 a.m. i.e in the morning time. Counsel appearing for the respondent, therefore, argues foul play on the part of the prosecution. . He summed up that the dying declaration is concocted evidence and justifiably has been discarded by the trial Court. He also argued that there is no corroboration that this dying declaration brought on record either by way of oral evidence or otherwise on behalf of the prosecution. 5 Apart from this document, we have seen two more documents, which are Exh.31 and 32. Exh.31 is the communication addressed by the Police Officer, outpost Government Hospital, Osmanabad to the 5 police Inspector, Police Station, Osmanabad. This communication appears to be information about the burn injuries sustained by deceased Vandana, her initial admission to the Public Health Center at Tuljapur and shifted to the said patient to the Government Hospital at Osmanabad. We have also seen Exh.32, which is dated 9.5.2008. This communication is under the signature of Duty Medical Officer, addressed to the police Station, Osmanabad. This document appears to be of deceased Vandana on account of burn injuries. According to P.W.8 Mr. Sayyad that from communication Exh.32 he came to know that Vandana died on 9.5.2008 at 2.30 p.m. We have also considered the document Exh.33. 6 On behalf of the prosecution, post mortem report is brought on record Exh.12. The cause of death recorded is shock due to severe burn (87%). Mr. Shaikh, learned A.P.P. points out one more circumstance i.e. seizure of clothes allegedly wore by the respondent at the time of commission of offence. These clothes are pant and shirt. After seizure of the said clothes, those were forwarded to the Chemical ayalizer. He points out the report of the Chemical Analyzer, which is on record. According to him this evidence brought on record by the prosecution the same is not considered in proper perspectives. The accused ought to have been convicted. 7 We have given due consideration to the submissions advanced 6 on behalf of the parties. We have noticed inconsistency in the timing of doctor’s communication by the Medical Officer on 8.5.2008 at 2.30 p.m. (afternoon) and allegedly recording of dying declaration on same day in between 11.15 to 11.30 a.m. i.e. 3 to 4 hours prior to the receipt of communication by the officer concerned. The evidence relied upon by the prosecution does not help to the prosecution for the simple reason that the panch witness turned volte-face. We have noticed that Chemical Analyzer's report does not help the prosecution. The parents of deceased Vandana are also not supporting the case of the prosecution. 8 All in all, we do not find any infirmity and perversity in the acquittal recorded by the trial Court. Thus, this application filed by the State seeking leave is sans of merit and the same is dismissed. 9 Application stands rejected. Leave refused. No costs. ( S. S. SHINDE. J.) (S.B. DESHMUKH, J.) rlj/