APPLN.57-2011.sxw acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 57 OF 2011 The State of Maharashtra ..Applicant. Vs. Rajaram Ramchandra Turumbekar. ..Respondent. -- Mr. H.J.Dedhia, APP for the Applicant-State. -- CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. MARCH 11, 2011. P.C.: Heard Mr. Dedhia, the learned APP appearing for the State of Maharashtra. 2 This application is filed for seeking leave to appeal under Section 378(3) of Cr. P.C. against the order of acquittal passed by the learned Sessions Judge-4, Kolhapur in Sessions Case No.125 of 2007 on 20.10.2010. The respondent has been acquitted in the said case for the offences punishable under Sections 302, 452, 376 and 511 of IPC. 1 APPLN.57-2011.sxw 3 As per the prosecution case, the deceased Asha was the wife of Tanaji Lakhu Khamkar and they had two sons by name Vaibhav and Vishal. Initially Tanaji Khamkar was working in Arvind Mills at Gokul Shirgaon, but subsequently he left India and went to Mauritius leaving behind at his village his wife and two children. PW-3 Lakhu Khamkar is the father of Tanaji, but he was not staying with Asha and was staying at a separate house opposite to her parents house. On 02.08.2007 Asha sustained burn injuries around 7.30 p.m. while she was in her house, and started shouting. She came out of her house with burn injuries and neighbours gathered. She was taken to the hospital by the accused and his neighbours. PW-6 Shankar Lingade in the meanwhile called Tanaji at Mauritius and informed him about the incident. Tanaji returned on 4.8.2007 and on the same day Asha breathed her last. She died of burn injuries. Thereafter, Tanaji filed the complaint with the concerned Police Station on 6.8.2007 alleging that it was the accused who had molested his wife Asha and set her on fire. 4 The prosecution examined in all seven witnesses and PW-7 Vilas Jadhav was the Investigating Officer. PW-1 Narayan Khamkar was the panch witness for the spot panchanama (Exh.18), PW-2- Laxman Sase 2 APPLN.57-2011.sxw was the panch witness for the seizer of burnt clothes of the accused and the panchanama drawn at Exh-25. PW-4 Tanaji Khamkar, and PW-5-Mahesh Khamkar was the neighbour. 5 While Asha was admitted at the hospital, her dying declaration came to be recorded by Police Constable Shri Vadke which is the admitted fact by the defence. As per the dying declaration, it is clear that she had poured kerosene in stove and there was no electricity connection in the house. She further stated that some kerosene might have got spread on her sari which she did not realise and when she started the stove, her nylon sari suddenly caught fire and the accused had reached there who tried to rescue her. The deceased sustained 90% burn injuries and PW-5 Mahesh Khamkar has supported this narration of the incident as it appears from the dying declaration. PW-5 Mahesh Khamkar stated before the trial court that around 7.30 p.m. on 2.8.2007 he and his father were in their house and they heard Asha shouting and therefore they reached there but the door of the house was closed from inside and they entered the house from the rear side when they saw Asha in flames and the accused Rajaram Turumbekar was present there. Tanaji stated that the accused was running away from the rear side door which has not been believed by the trial court and rightly so. 3 APPLN.57-2011.sxw PW-3 Lakhu Khamkar admitted in his depositions before the trial court that the accused was present and he accompanied Asha to the hospital. It has also come in the evidence of PW-5 Mahesh that the accused also sustained burned injuries while he was trying to extinguish the fire. If the incident had lasted for more than 15-20 minutes, it was easily possible for the accused to run away if he was involved in setting Asha on fire. The dying declaration has been certified by the doctor and it stated that Asha was in a position to make statement as she was conscious when it was recorded. The trial court has rightly relied upon the dying declaration of the deceased and rejected the prosecution case. 6 In our considered opinion, the reasoning set out by the trial court in support of the order of acquittal does not call for reconsideration at our hands. Hence, leave to appeal is refused. 7 Criminal Application stands rejected. (U. D. SALVI,J.) (B. H. MARLAPALLE,J.) 4