1 Criminal Appl.No.1497 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1497 OF 2011 State of Maharashtra, Through Gandhi Chowk, Latur Police Station APPLICANT VERSUS Sanjay Chandrakant Kamble, Aged-38 years, Occu-Labourer, R/o.Yelladevi Umerga, Tq.Ahmedpur, Dist.Latur, at present Siddheshwar Chowk, Latur RESPONDENT Smt.S.D.Shelke, learned A.P.P. for applicant/State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 15/07/2011 PER COURT : (Per A.V.Potdar, J.) 1. By the present application, State seeks leave u/s. 378(1)(3)(b) of the Cr.P.C. to file an appeal against the judgment of acquittal passed by the Ad-hoc Additional Sessions Judge, Latur in Sessions Case No.84/2009, vide judgment and order dated 23/12/2010. 2. We have heard learned A.P.P. for State. We have perused the record and proceeding called from the learned Lower Court and also the impugned judgment, subject matter of this application. 2 Criminal Appl.No.1497 of 2011 3. Prosecution have come with a case that deceased Renuka married with respondent about 13 years back and blessed with 3 children out of the said wedlock. Family of the deceased was residing in the house of P.W.No.4 Savitribai, situated at Siddheshwar Chowk, Latur, prior to 2 months of the incident. On 06/04/2009, in the afternoon around 1.00 to 1.30 p.m., respondent came in drunkard condition and demanded money from Renuka to consume liquor, to which she refused. Appellant asked deceased to bring Rs. 10,000/- from her parents to purchase auto-rickshaw. Appellant also abused the deceased and assaulted with fists and kick blows. Then he insisted deceased to give divorce to him. As deceased refused to do so, he poured kerosene on the person of the deceased and had set her ablaze. She started shouting. Then respondent poured water on her person and extinguished the fire and with the help of neighbouers, shifted her to Civil Hospital, Latur. On the basis of her statement recorded by P.W.No.2, an offence came to be registered vide CR No.72/2009 for an offence punishable u/s. 307, 498-A, 323, 504 of the IPC. A request letter was also addressed by P.W.No.2 Govind Gurav, Executive Magistrate P.W.No.6 Vikram to record dying declaration of Renuka. While under treatment, Renuka succumbed to injuries on 13/04/2009, hence an offence punisahble u/s. 302 of the IPC was added in the said CR. Vasant Balasaheb carried out the investigation. During the investigation, he visited the spot, drew spot panchnama Exh.26, seized burn pieces of saree, match box, one petticoat from the spot of incident and then forwarded the seized property to Chemical Analyser. During the 3 Criminal Appl.No.1497 of 2011 investigation, he recorded the statements of certain witnesses. After demise of Renuka, inquest panchnama Exh.31 was drawn in the presence of witnesses, so also post mortem was conducted on the dead body in the Civil Hospital Latur. On being committal of the case to the Court of Sessions, learned Lower Court framed charge against respondent/accused vide Exh.10 for an offence punishable u/s. 302, 498-A of the IPC to which respondent pleaded not guilty and claimed to be tried. Defence of the respondent is of total denial and his false implication in the case. During the trial, prosecution have examined in all 8 witnesses. The case of the prosecution rests on the dying declarations recorded by P.W.No.2 at Exh.29 and by P.W.No.6 at Exh.46 and the oral dying declaration of the deceased, before her relatives and parents. There is no dispute about the marital relations between the respondent and deceased, so also about the fact that the deceased succumbed to burn injuries. 4. Dying declaration first in time is at Exh.29 and was recorded on 06/04/2009 in between 4.30 p.m. to 5.00 p.m. It was recorded by P.W.No.2 Govind Gurav. On perusal of the same, it reveals that in the afternoon of 06/04/2009, respondent came to the house in drunkard condition and initially demanded money to consume liquor from the victim. When she refused to pay money to respondent, he asked deceased to bring Rs.10,000/- from her parents to purchase auto-rikshaw. Then he abused her in filthy language and assaulted her with fists and kick blows. During the said quarrel, he insisted to give divorce to him. When she refused, he poured kerosene on her 4 Criminal Appl.No.1497 of 2011 person and set her ablaze. After hearing her shouts, respondent poured water on her person and extinguished the fire and with the help of neighbourers, admitted her in the hospital at Latur. She was examined by Dr.M.J.Chawala when her dying declaration was recorded by Govind Gurav. 5. It appears that on the same day, her one more dying declaration was recorded by Special Executive Magistrate in between 8.00 p.m. to 8.30 p.m., wherein she has stated that in the afternoon of 06/04/2009, her husband returned from his duty and asked her to serve the food. As the food was not ready, she ignited the stove and prepared bread. When she was trying to take the tin containing chilly from the wooden plank to prepare the vegetable, her saree came in contact with the flame and caught fire. On hearing her shouts, her husband and small daughter entered inside the house alongwith her maternal aunt. All of them poured water on her person, covered her body with bed-sheet, and extinguished the fire. She has stated that she has sustained burn injuries. Thus these two dying declarations at Exh.46 and 29 recorded by the Police Official and Special Executive Magistrate are contrary to each other. If one of the dying declaration is accepted, then it will falsify the another. 6. At this juncture, it is useful to refer to the observations of the Division bench of this Court, to which one of us (Shri.P.V.Hardas, J.) is party, in the matter of Suresh S/o.Arjun Dodorkar Versus State of Maharashtra, 2005 ALL M R (Cri.) 1599, wherein the Division 5 Criminal Appl.No.1497 of 2011 Bench of this Court has observed that in the cases rests on multiple dying declaration and if any of the dying declaration is accepted, it will falsify the other dying declaration, then in such cases, the Court can not pick and chose the dying declaration which is suitable to convict the accused, but the Court to discard such dying declarations. 7. On perusal of the impugned judgment, it reveals that variance in both these dying declaration was discussed by the learned Lower Court minutely, and as these dying declarations are contrary to each other, and not supported by the circumstantial evidence, learned Lower Court has discarded both these dying declarations and acquitted the respondent/accused. Considering the facts of this matter, we do not find any perversity in the findings recorded by the learned Lower Court, so also we are of the considered opinion that the view taken by the learned Lower Court is a probable view to be taken. In view of this, as the application sans any merit, leave refused. Application is accordingly dismissed. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JULY 2011/cri.appl.1497-11