1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 150 OF 2010 (FOR LEAVE TO FILE APPEAL) IN CRIMINAL APPEAL NO. OF 2009 (Against the order of acquittal) The State of Maharashtra ..Applicant [Ori.Complainant] Vs. Mangesh Anantrao Salunkhe ..Respondent .... Mr.V.B.Konde-Deshmukh APP for the Applicant-State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : 17th MARCH, 2010 P.C. [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 29.3.2010 passed by the learned IInd Adhoc Additional Sessions Judge, Alibag, Ragad in Sessions Case No. 97 of 2007. By the said judgment and 2 order, the respondent-accused came to be acquitted of the offences under Sections 498-A, 302 and 506 II of IPC. 2 The prosecution case briefly stated is that Mayuri alias Sangita was married to the respondent in March, 2000. Both of them had a son by name Sanket. The accused was addicted to liquor and he used to illtreat and harass Mayuri. On 16th January, 2007 Mayuri was admitted in hospital with burn injuries. Her dying declarations came to be recorded on 17th January, 2007 wherein she stated that she had set herself on fire. Thereafter on 18thJanuary, 2007 another dying declaration of Mayuri came to be recorded wherein she stated that her husband had set her on fire. Mayuri died on 19th January, 2007. On the basis of dying declaration of Mayuri recorded on 18th January, 2007, offence was registered and investigation commenced. 3 Charge came to be framed against the respondent-accused under Sections 498-A, 302 and 506 II of IPC. The respondent pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge acquitted the respondent as stated in paragraph no. 1 above. Hence, this application 3 for leave to file appeal. 4 We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge. We have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated hereinbelow, we are of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 5 It is pertinent to note that soon after Mayuri was taken to hospital, in her first statement, she has stated that she committed suicide by pouring kerosene on her person and setting herself on fire. So also in her second dying declaration, she has stated the same facts i.e. she had committed suicide by pouring kerosene on her person. Both these dying declarations Exhibits 43 and 58 are consistent. However, thereafter on 18th January, 2007 Mayuri changed her version and she gave a dying declaration wherein she has stated that her husband set her on fire. As far as husband setting her on fire is concerned, Sanket the son of Mayuri and the accused, was examined. He was present in the house when the incident occurred. He has stated that he was 4 playing in front of the room, at that time, he saw flames emerging from the kitchen room where Mayuri was cooking food. At that time, his father was sitting infront of the door at the doorstep. He stated that his father and neighbours extinguished the fire with the help of blanket and quilt. It is pertinent to note that house of the accused comprises of only one room which was divided by a partition. The back portion was used as kitchen while front portion was used for sleeping. In such a case, there can only be one door to the room and Sanket has clearly stated that his father was sitting in front of the door at the doorstep. This clearly shows that accused was not in the kitchen when Mayuri caught fire. It is also pertinent to note that on the day when Sanket gave his evidence, he was in the custody of his maternal grand parents. In fact from about 18th January, 2007 till the time he gave his evidence before the Court, Sanket was residing with his maternal grand parents. The very fact that though Sanket was in custody of his maternal grand parents, yet he has stated that his father was not in the kitchen when his mother caught fire, this shows that the prosecution story that respondent set his wife on fire, cannot be believed. 6 There is another piece of evidence due to which we are further convinced that the respondent has not set his wife on fire, we say 5 so on the basis of evidence of the brother of Mayuri i.e. PW 2 Shailesh. Shailesh has stated that when he went to the hospital and met his sister for the first time, she informed him that she had set herself on fire. The learned APP tried to contend that Mayuri had made a false statement as at that time, her son Sanket was with her husband and she feared for the safety of her son. It was only when the custody of her son was taken by her parents that she gave statement against her husband. In support of this contention, the learned APP has placed reliance on the evidence of PW 3 Megha where Megha has stated that initially, Mayuri informed her that she set herself on fire and she made such a statement because of the fear of the safety of the life of her son Sanket. However, when they took custody of her son Sanket, that time, Mayuri gave statement that her husband set her on fire. However, evidence of Megha is belied by her cross examination as it is seen that this portion of her deposition does not find place in her police statement. Thus, it is seen that a material improvement has been made by this witness and this amounts to material contradiction. Hence, the very reason given by witnesses for Mayuri first stating, it is a case of suicide appears to be totally false. 7 Another reason for not relying on the dying declaration (Exh. 31) in which Mayuri is alleged to have stated that her husband set her on 6 fire is that vital pre-cautionary measures were not followed before recording dying declaration. The evidence on record clearly shows that her brother PW 2 Shailesh was very much present as well as PSI from Agripada police station was also present when the dying declaration was recorded. Obviously, a dying declaration recorded in the presence of relatives of the person making the statement cannot be relied upon. 8 It is pertinent to note that even when her earlier dying declarations were recorded, Mayuri ’s brother and close relatives were present, therefore, it could not be said that first two dying declarations were made under any pressure, but infact, these dying declarations appear to be voluntary. Taking into consideration the earlier dying declarations and also the evidence of Sanket, the learned Sessions Judge was right in holding that it rules out the theory of murder. As far as the earlier two dying declarations are concerned, there is no material therein that Mayuri set herself on fire on account of any wilful act on the part of the accused or any immediate act on the part of accused including harassment to her where such harassment is with a view to coercing her to meet any unlawful demand for any property or valuable security. 7 9 The learned Sessions Judge has considered all the above aspects and thereafter he has reached the conclusion and in our opinion, rightly so, that the prosecution has not been able to prove beyond all reasonable doubt the prosecution case against the respondent. On going through the evidence on record, we find that the view taken by the learned Sessions Judge is a reasonable and possible view. 10 The Supreme Court in the case of Khedu Mohton and others Vs. State of Bihar reported in 1970(2) SCC 450, has observed that in a case of appeal against acquittal if two reasonable conclusions can be reached on the basis of evidence on record, then, the view in support of acquittal of the accused should be preferred. It further observed that the fact that the High Court is inclined to take a different view on the basis of the evidence on record is not sufficient to interfere with an order of acquittal. 11 The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction, but, however, the court hearing an appeal against acquittal, will not interfere solely because a different 8 plausible view may arise on the evidence. This has been so observed by the Supreme Court in K.Ramakrishnan Unnithan Vs. State of Kerala, AIR 1999 SC 1428. 12 So also, the Supreme Court in the case of C.Anthony Vs. K.G.Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. We have already observed that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, we are not inclined to interfere in the judgment and order of acquittal. 13 In view of the above, application for leave to file appeal, is dismissed. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]