1 Criminal Appl.No.1444 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1444 OF 2011 State of Maharashtra, Through The Public Prosecutor, High Court, Bench at Aurangabad APPLICANT VERSUS 1. Darshana S/o.Balaji Bagal, Age-19 years, Occu-Household, R/o.Shingoli, Tal.Kallam, Dist.Osmanabad 2. Sushila W/o.Uttareshwar Jagtap, Age-42 years, Occu-Household, R/o.Gategaon, Tal. And Dist.Latur RESPONDENTS Mr.N.R.Shaikh learned A.P.P. for applicant/State. Mr.Y.V.Jadhav, learned counsel for respondents. (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 order of acquittal passed by the Ad-hoc Additional Sessions Judge, Latur in Sessions Case No. 114/2009, vide judgment and order dated 28/12/2010. 2 Criminal Appl.No.1444 of 2011 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. 3. At the outset, case of prosecution is based on the statement of deceased Puja, recorded by A.P.I. Shri.Sunil Jaitapurkar (P.W.No.6) on 30/06/2009, on the basis of which, an offence came to be registered vide CR No.52/2009 u/s. 307 r/w. 120(b) of the IPC against the respondents. It appears that on 02/07/2009, Puja succumbed to burn injuries at 8.20 p.m., hence an offence punishable u/s. 302 of the IPC is added in the said CR. During the investigation, P.W.No.6 A.P.I. Jaitapurkar took over the investigation in CR No.52/2009. He visited the place of incident and drew spot panchnama. From the spot, he seized certain articles, and also recorded statements of certain witnesses and arrested the appellants. After demise of Puja, he recorded supplementary statements of witnesses. Seized articles were sent for chemical examination. Further completion to the investigation, charge sheet was filed against the appellants in the Court of C.J.M. Latur. On being committal of the trial to the Court of Sessions, it appears that the learned Trial Court framed charge against the appellants for an offence punishable u/s. 302 r/w. 34 and u/s. 120(b) of the IPC. Respondents herein pleaded not guilty to the charge and claimed to be tried. Defence of the respondents is of total denial and their false implication in the case of prosecution. It appears that during the trial, to substantiate the charge lavelled against the respondents, 3 Criminal Appl.No.1444 of 2011 prosecution have examined Dilip Dadarao Jaibi (P.W.No.1) father of the deceased, Ramesh Deelip Jaibi (P.W.No.2) brother of the deceased, Ashok Pawar (P.W.No.3) maternal uncle of the deceased, ASI Govind Gurav (P.W.No.4), Nayab Tahsildar Ashishkumar Biradar (P.W.No.5), A.P.I. Shri.Sunil Jaitapurkar (P.W.No.6), Dr.Yogesh Swami (P.W.No.7), who had put an endorsement on the dying declarations at Exh.37 and 42. It appears that before the Trial Court, on admission of the respondents, panchnama of scene of offence Exh.16, inquest panchnama Exh.17 and post mortem report Exh.18 were exhibited. 4. All the facts i.e. deceased Puja married with Ganesh on 12/06/2009, respondent no.1 is the sister in law of deceased and respondent no.2 is mother in law of deceased, are not under dispute. The incident in question took place on 28/06/2009 at about 4.00 p.m. in the maternal house of the deceased is also not under dispute. 5. Perusal of the record and proceeding discloses that the case of prosecution rests on 3 dying declarations. On 28/06/2009, dying declaration was recorded by P.W.No.4 ASI Govind Gurav, which is at Exh.30, next dying declaration was recorded by Nayab Tahsildar P.W.No.5 on 29/06/2009 which is at Exh.37 and the last dying declaration wasrecorded by P.W.No.6 A.P.I. Jaitapurkar on 30/06/2009 which is placed at Exh.42. On perusal of the dying declaration at Exh.30, wherein the deceased had disclosed that on 28/06/2009, at about 4.00 p.m., when she was preparing tea, at that time she had sustained burn injuries. At that time, all the 4 Criminal Appl.No.1444 of 2011 family members, except respondent no.1 had been to their agricultural field. On hearing shouts, neighbourers and respondent no.1 came there, they poured water on her person and extinguished the fire. She was shifted to Civil Hospital and she has no grievance against her in laws. Thus this dying declaration discloses that she had sustained accidental burns. Her second dying declaration was recorded on 29/06/2009 by P.W.No.5 Ashish Biradar, which discloses that her in laws and her husband had been to the field. In the evening, she was preparing tea. When she was preparing tea on the hearth, respondent no.1, her sister in law, pushed her on the hearth. In that process, her polyster sari caught with fire and she sustained burn injuries. At that time, other than she and respondent no.1, her grand-mother in law was also present in the house. She requested them to save, but nobody saved her. However, on hearing shouts, neighbourers came there and admitted her in the Civil Hospital. She has further stated that respondents are responsible for the incident in which she had sustained burn injuries. Her third dying declaration was recorded on 30/06/2009 by P.W.No.6 A.P.I. Jaitapurkar, in which she has stated that on 28/06/2009, her husband and mother in law had gone to the field. Her father in law had gone to Baramati. Her sister in law respondent no.1 and grand mother in law were present in the house. At about 3.00 p.m., respondent no.1 asked her to prepare tea, therefore she went in the house and ignited the hearth. There was big flame. At that time, respondent no.1 pushed her on the flame, due to which she sustained injuries. She gave shouts, but instead of extinguishing the 5 Criminal Appl.No.1444 of 2011 fire, respondent no.1 played the role of silent spectator. However, the neighbourers came there and extinguished the fire by covering her body with carpet and shifted her to hospital. She has stated in the dying declaration that in the morning, some discussion took place in between her mother in law, hence she suspect that her mother in law, and respondent no.2 shared the responsibility by which she had sustained burn injuries. 6. Learned Trial Court was of the view that there is complete variance in the dying declarations recorded during the investigation. So also learned Trial Court relied upon the defence evidence of the neighbourer by name Nagorao Bansode, who immediately reached at the spot and whose statement was also recorded during the investigation in which it is stated that at the material time, none of the family members of the deceased were present in the house, he extinguished the fire by covering the body of the deceased with carpet and shifted her to the hospital. 7. Perusal of these 3 dying declaration reveals that in the first dying declaration, the deceased had disclosed that she had sustained accidental burn injuries and not implicated any of the respondents in the incident. In the second dying declaration recorded after the span of about 24 hours, on arrival of her parents, she implicated only respondent no.1, but no role was assigned to respondent no.2. In the third dying declaration, particular role was attributed to respondent no.1 and it is alleged that this is an act at the hands of 6 Criminal Appl.No.1444 of 2011 respondent no.1 in agreement with respondent no.2. 8. Admittedly, prosecution have not examined the neighbourer, who extinguished the fire and shifted the victim to the hospital, but the said neighbourer Nagorao Bansode was examined by the respondents in their defence, from whose evidence, it transpired that at the time of incident, he reached at the spot on hearing the shouts of the deceased, but did not found either of the respondents present in the house. His statement was also recorded u/s. 161 of the Cr.P.C. during the investigation. 9. 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 Bench of this Court has observed that in the cases rests on multiple dying declarations 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. In the case in hand, 3 dying declarations were recorded during the investigation. As discussed above, they are contrary to each other. Considering all these facts, we are of the considered opinion that the view taken by the learned Lower Court is a probable view. Learned A.P.P. also unable to point out any perversity in the judgment of the Lower Court, acquitting the 7 Criminal Appl.No.1444 of 2011 respondents from all the charges. Thus, we do not find any fault in the reasoning recorded by the learned Trial Court. Hence the application sans any merit, leave refused. Application is disposed of accordingly. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JULY 2011/cri.appl.1444-11