1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRI. REVISION APPLICATION NO. 316 OF 2009 Jaishree wd/o Dattatrya Kshirsagar, Aged 34 years, Occupation Household, R/o Hipparga (Rawa), Taluka Lohara, District Osmanabad Applicant V E R S U S 1. The State of Maharashtra 2. Dayanand s/o Ram More, Aged 22 years, 3. Sopan @ Somnath s/o Narsing More, Aged 37 years, 4. Kisan s/o Darappa More, Aged 43 years, 5. Shivaji s/o Darappa More, Aged 58 years, 6. Satish s/o Shivaji @ Shahuraj More, Aged 30 years, 7. Laxman s/o Darappa More, Aged 55 years, 8. Sambhaji s/o Laxman More, Aged 23 years, 9. Anil s/o Digambar Honalkar, Aged 51 years, 10. Ashok s/o Ramrao Jadhav, Aged 47 years, 11. Ram s/o Darappa More, Aged 50 years, All resident of Hipparga (Rawa), Taluka Lohara, District Osmanabad. Respondents Mr. B.R. Kedar, Adv h/f Mr. S.B. Talekar, Adv for the applicant Mr. T.S. Lodhe, APP for the respondent No. 1 / State CORAM : A.V. NIRGUDE, J. DATED : 20th September, 2010 2 ORAL JUDGMENT 1. This revision is filed against the Judgment and order of acquittal passed by the learned Additional Sessions Judge, Osmanabad, in Sessions Case No. 40 of 2007. 2. The revision applicant is the complainant, whose husband was killed allegedly by the respondents. The incident of assault took place at about 06.00 to 07.00 a.m., on 18th November, 2006. Admittedly, there was no eye witness. The complainant learnt that her husband was lying in a pool of blood near bus-stand. She rushed to the spot. She and her relatives then took the deceased to the hospital at Solapur. During the journey, deceased disclosed to her and others that he was assaulted by the respondents. The learned Judge of the trial Court discarded the evidence of dying declaration, and, I find no error in such conclusion, because, after sustaining serious injuries, which are mentioned in the post-mortem report, there was probably no possibility of the deceased talking to the witnesses. Admittedly, the deceased did not disclose as to who assaulted him when the complainant / his wife saw him on the spot and when number of passersby were present surrounding the deceased. The disclosure was made only when the deceased was put in the Jeep. The witnesses who were present in the Jeep those are the only witnesses who heard the deceased talking about the incident and about the identity of his assailants. The depositions of such witnesses in my view is very weak piece of evidence, and, in view of the fact that during the transit, the deceased died, their testimonies were rightly rejected by the trial Court. 3. There is one more interesting feature in this case. The respondent No.10 took a very peculiar defence. He said that on that day at about 06.30 a.m. when he was returning after defecating back to his house, the deceased came and attacked him. He sustained serious injuries, he fell down and became unconscious. He said, he 3 noticed that number of people came to rescue him, when they saw deceased attacking him, and, he said that those unknown persons attacked the deceased. In the background of the prosecution case, the defence is rightly accepted by the learned Judge of the trial Court. There is no substance in the revision. The revision stands dismissed. (A.V. NIRGUDE, J.) srm/cra/316/09