1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2162 OF 2010 (FOR LEAVE TO FILE APPEAL) IN CRIMINAL APPEAL NO. OF 2010 The State of Maharashtra ..Applicant [Ori.Complainant] Vs. Tatyaji Kashinath Sonawane and Ors. ..Respondents [Ori.Accused nos.1 to 4] .... Mr.V.B.Konde-Deshmukh APP for the Applicant-State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : JULY 05, 2010 ORAL ORDER: [PER SMT.V.K.TAHILRAMANI,J.]: 1 The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 16.7.2009 passed by the learned Ad-hoc Additional Sessions Judge-1, Malegaon, District Nasik in Sessions Case No.78 of 2003. By the said judgment 2 and order, the respondents i.e. original accused nos. 1 to 4 came to be acquitted of the offences under Sections 498-A, 306, 302 r.w. 34 of the IPC. 2 The prosecution case briefly stated is as under: Accused no.2 Indubai Sonawane is the mother of accused no.1 Tatyaji. Accused no.3 Sharad is the brother of accused no.1 Tatyaji and accused no.4 Sangita Vispute is the sister of accused no.1. Deceased Mohini D/o Balu Thorat was married to accused no.1 Tatyaji. After marriage, Mohini was residing with accused no.1 at village Daregaon, Taluka Satana, District Nasik. It is the prosecution case that there was demand for an amount of Rs.31,000/- by the accused persons from Mohini and as the demand was not met, on 23.4.2003, Mohini was set on fire in the matrimonial house. Mohini sustained 65% burn injuries. 3 We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Ad-hoc Additional Sessions Judge-1, Malegaon. We have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned 3 Additional Sessions Judge does not call for any interference. 4 After sustaining burn injuries, Mohini was admitted in hospital. During the period that she was in the hospital, four dying declarations of Mohini came to be recorded. First dying declaration (Exh.57) came to be recorded on 24.4.2003 at 3.40 a.m. wherein Mohini stated that at mid-night a lamp fell on her and she caught fire. Second dying declaration came to be recorded on 25.4.2003 by P.W. 7 ASI Mahale wherein, Mohini stated that her husband-accused no.1 abused her and he was asking her to bring Rs.21,000/- from her parents hence, at mid- night she poured kerosene on herself and set her on fire. This dying declaration came to be treated as FIR (Exh.51). Another dying declaration (Exh..60) came to be recorded by Special Executive Magistrate PW 9 Shri. More on 29.4.2003. On 29.4.2003 ASI Mahale also recorded a supplementary statement of Mohini. In both these statements, Mohini stated that her husband consumed liquor and came home at midnight and he poured kerosene on her person and set her on fire. It is significant to note that as far as dying declaration (Exh.60) is concerned, the original dying declaration is missing and therefore, a carbon copy of the alleged dying declaration (Exh.60) was accepted by the Court. In the cross-examination, Special Executive Magistrate has stated that as there was request from the father of the patient, he 4 recorded the said dying declaration. It has also been revealed in the cross-examination of the Special Executive Officer that during the period dying declaration was being recorded, Balu the father of deceased Mohini was present. It has also come on record that since 24.4.2003 to 29.4.2003 all the time, Balu was with Mohini. Balu has stated that when the statements of Mohini came to be recorded on 29.4.2003, he was present. Looking to the fact that the father of the deceased was present when her dying declarations came to be recorded wherein she implicated the accused, no reliance can be placed on the said dying declarations. 5 In the dying declaration which was recorded first in point of time, Mohini has not implicated the accused persons. Looking to the evidence on record, we find that the conclusion arrived at by the trial Court that there is no cogent and credible evidence on record to connect the accused with the crime and hence, they are entitled for the benefit of doubt, is a reasonable and possible view, hence, we are not inclined to interfere with the same. 6 In the result, application for leave to file appeal, is rejected. Consequently, appeal is dismissed. [SMT.V.K.TAHILRAMANI, J. ] [SMT. RANJANA DESAI, J.] 5