1 criap-4969.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4969 OF 2010 The State of Maharashtra Applicant versus Babukhan @ Rajjak Rashid Khan Respondent -------- Shri S.G. Nandedkar, A. P. P. for the applicant-State. Shri N.V. Gaware, Advocate, for Respondent-accused. Coram : Shrihari P. Davare, J. Date : 13th April, 2011. P. C. 01. Heard learned Counsel for the parties. 02. This is an application preferred by the State, seeking leave to file appeal, challenging the judgment and order dated 20.8.2010, rendered by the learned District Judge-5 and Assistant Sessions Judge, Ahmednagar, in Sessions Case No.179 of 2008, thereby acquitting the respondent-original accused of the offences punishable under Sections 498-A, 306, 504 and 506 of the Indian Penal Code. 03. The factual matrix of the matter is as follows; Victim Ayeshabi was the wife of the accused, namely, Babukhan @ Rajjak Rashid Khan, who married with each other on 10.9.2006 as per 2 criap-4969.10 Muslim customs, and after the marriage, she went to the house of the accused for cohabitation, and she was treated well for initial 7-8 months. She even delivered a male child from the accused. However, it is alleged that thereafter, she was ill-treated and the accused started demanding money from her and even suspected her fidelity. The deceased and the accused were residing in rented house owned by one Mr. Wandhekar at village Tisgaon. On 6.11.2007, victim Ayeshabi sustained burn injuries as, by pouring kerosene on her person, she had set herself ablaze, and therefore, she was admitted in Sonar Hospital, of Dr. Sonar (PW-5) at Ahmednagar. 04. In all, four dying declarations of the victim Ayeshabi were recorded as mentioned below. (1) Dying Declaration recorded by Head Constable Mr. Pathak, of Kotwali Police Station, on 7.11.2007 at 5.30 p.m. (Exhibit 30). (2) Dying Declaration recorded by Shri Bhaskar Bhos, Special Judicial Magistrate (PW-4), on 8.11.2007 at 9.30 a.m. (Exhibit 26) (3) Dying Declaration recorded by Head Constable Dilip Bhosale (PW-6) of Pathardi Police Station, on 31.12.2007 at 8.00 a.m. (Exh. 29) (4) Dying Declaration recorded by Shri Bhaskar Bhos (PW-4), Special Judicial Magistrate, on 31.12.2007 at 8.00 a.m. (Exh. 24). 3 criap-4969.10 05. Victim Ayeshabi succumbed to the injuries on 4.1.2008. The post mortem was performed on her dead body, which disclosed that she had sustained 42 per cent burn injuries and the cause of death was certified to be "Septicemic shock due to burns.". The post mortem report is at Exhibit 21. 06. To substantiate its case, the prosecution has examined inasmuch as seven witnesses, as mentioned below. PW-1 Shaikh Jainuddin Jamadar Father of the deceased. PW-2 Smt.Mubarakbi Jamadar Mother of the deceased. PW-3 Riyaj Amir Shaikh panch witness. PW-4 Bhaskar Bhikaji Bhos Special Judicial Magistrate, who recorded two dying declarations,dtd. 8.11.2007 (Exh. 26) and 31.12.2007 (Exh.24). PW-5 Dr. Vijay M. Sonar who runs Sonar Hospital, where victim was admitted. PW-6 Dilip Damodhar Bhosale Police Head Constable,who recorded Dying declaration dated 31.12.2007 (Exh.29). PW-7 Maruti Ramji Pakhare Police Sub Inspector, and the Investigating Officer. 4 criap-4969.10 07. Apparently, the dying declaration (Exh. 30) recorded by Head Constable Pathak, dated 7.11.2007 at 5.30 p.m. and the second dying declaration (Exh.26) recorded by Bhaskar Bhos on 8.11.2007 at 9.30 a.m. are the two dying declarations recorded first in point of time, immediately after occurrence of the incident, and those two dying declarations disclose that the victim Ayeshabi sustained burn injuries, accidentally, as, while cooking, her odhani/dupatta fell on the flames of gas and ablaze, and her husband tried to extinguish the fire and he also sustained burn injuries. However, subsequent two dying declarations, both dated 31.12.2007, one recorded by PW-6 Dilip Bhosale, Head Constable of Pathardi Police Station, (Exh.29) and another by PW-4 Bhaskar Bhos, Special Judicial Magistrate, (Exh.24), involve the accused. Accordingly, there are multiple dying declarations, and the first two dying declarations dated 7.11.2007 and 8.11.2007 (Exhs.30 and 26 respectively) disclose the accidental death of the victim, whereas, later dying declarations dated 31.12.2007 (Exhs.24 and 29) involve the accused in the alleged offence, and admittedly, much water had flown after the occurrence of the incident, which is dated 6.11.2007, till recording of later dying declarations on 31.12.2007, and hence, possibility of concoction, while recording the said subsequent dying declarations, cannot be ruled out. In fact, the two dying declarations, which were recorded first in point of time i.e. on 7.11.2007 and 8.11.2007 (Exhs.30 and 26 respectively), apparently disclose the 5 criap-4969.10 real facts, which categorically mention accidental death and thus absolves the accused. Moreover, the aforesaid conflicting dying declarations also create suspicion in respect of the prosecution case, and hence, conviction cannot be based upon such multiple conflicting dying declarations, and therefore, learned trial court rightly acquitted the accused for the charges levelled against him. 08. Besides, it appears that the prosecution has not examined any independent witness to prove the charges levelled against the accused. In fact, prosecution has not examined important and the best witness, namely, Mr. Wandhekar, owner of the house wherein deceased and the accused were residing on rent, who could have thrown light on the alleged incident, for the reasons known to the prosecution, and in fact, no reason has been assigned for his non examination. Moreover, witnesses examined by the prosecution are the family members and close relatives of the victim, and hence, it would be unsafe to base the conviction on the testimonies of such interested witnesses. 09. Shri Gaware, learned Counsel for respondent, relied upon the case of Samadhan Dhudaka Koli vs. State of Maharashtra, 2009 (1) Bom.C.R. (Cri.) 806, in support of his contention that multiple and inconsistent dying declarations cannot be accepted on their face value for basing conviction, and the evidence of the parents of the deceased is to be tested in the backdrop of the entire evidence on record. 6 criap-4969.10 10. In the circumstances, after scrutinizing and analyzing the evidence on record, the view adopted by the learned trial court, while acquitting the accused, is a possible view to be adopted and the same does not appear to be perverse, and therefore, no interference therein is called for, in the appellate jurisdiction, and hence, present application deserves to be rejected. 11. In the result, present application stands dismissed, and leave to file appeal is refused. Record and Proceedings be sent back to concerned court. 12. Application stands disposed of, accordingly. pnd/criap-4969.10 (Shrihri P. Davare, J.)