drp {1} Cri.Application No.1865/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1865 OF 2010 The State of Maharashtra APPLICNAT VERSUS Trimbak Limbaji Navghare & Another RESPONDENTS ....... Mr.N.R.Shaikh, APP for respondent State Mr.Prashant Nagargoje h/f Mr.P.R.Katneshwarkar, for R-2 ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 20th December 2010 ORAL ORDER (PER A.V.POTDAR, J.): 1. By this application, u/s 378 (1) (b) of the Criminal Procedure Code, the applicant-State seeks leave to file appeal against the order of acquittal dated 03.02.2010 passed by Ad Hoc Additional Sessions Judge, Basmatnagar in Sessions Case No. 27/2009. 2. It is alleged by the prosecution that since marriage of Usha with respondent No.1, she was residing with him and in the night between 10th and 11th December 2008 she had sustained drp {2} Cri.Application No.1865/2010 burn injuries and hence was shifted to a hospital at Basmatnagar and on medical advice, was shifted to Adhar hospital, Nanded. On MLC being forwarded, statement of Usha was recorded by the police in the early hours of 11th December 2008, on the basis of which an offence at Crime No.185/2008 was registered. Thereafter, second dying declaration was recorded by PW-8 Special Executive Magistrate, Zunjare on 13.12.2008. On 22.12.2008, while under treatment, Usha succumbed to the burn injuries and hence the offence was converted into punishable u/s 302 of the Indian Penal Code. Thereafter charge sheet was filed and the truial was committed to the Court of Sessions and Ad Hoc Additional Sessions Judge had framed charge (Exhibit-8) against the accused for an offence punishable u/s 498A and 302 r/w 34 of the Indian Penal Code. 3. The prosecution had examined Dr.Paradkar, in whose hospital Usha was initially admitted. The prosecution had also examined Nagnath Jadhav, father of the victim and certain Pancha witnesses, the medical officers, including the doctor who had treated the victim in Adhar hospital and the doctor who had conducted the postmortem and the investigating officer and the police head constable and the Special Executive Magistrate, who had recorded the dying declarations. 4. Learned APP has urged before us that perusal of evidence shows that both the witnesses, who had recorded the drp {3} Cri.Application No.1865/2010 dying declarations of the victim, have duly proved the same and as the case of the prosecution rests on these two dying declarations, leave to file appeal may be granted. 5. With the assistance of learned APP we have perused the impugned judgment and also the record and proceedings received from the trial court. Upon such perusal we find that PW-2 father of the deceased has not supported the case of the prosecution at all. According to the father of the deceased, there was no complaint of the deceased to him about ill-treatment by the respondents on any count. He has further stated in his examination in chief that when he reached at the Adhar Hospital, he noticed that Usha was unconscious and she had not disclosed as to how she had sustained the burn injuries. Thus, it is clear that PW-2 has not supported the prosecution case. Even the Panch witnesses, to the alleged memorandum of disclosure statement by respondent No.1 has not supported the prosecution case. Thus, it is clear that the prosecution witnesses have not supported the case of the prosecution. 6. Dr.Kadam, in his cross examination has admitted that in the history, recorded at the time of admission of Usha in Adhar Hospital, it is recorded that history of sustaining burns by the patient due to accidental fall of a kerosene lamp. He has further stated that there was no injury on the person of the deceased except the burn injuries. Perusal of the evidence of Dr.Puri, who drp {4} Cri.Application No.1865/2010 had conducted the Postmortem, reveals that no external injuries were noticed on the person of the deceased other than the burn injuries. This evidence requires to be considered in the light of the dying declarations of the deceased. Perusal of both the dying declarations, which are identical, indicates that before Usha had sustained burn injuries, she was assaulted continuously by a wooden log by respondent No.1 and thereafter, when she was asleep, respondent No.1 had poured kerosene on her person and had ablaze her. It is quite natural that at the time of admission of Usha in the hospital, Dr.Kadam might had examined the injured and had recorded notes in the admission papers. The admissions given by this witness that there were no external injuries on the person of Usha except the burn injuries, do not corroborate with the facts disclosed in the dying declarations (Exhibit-34 and 41). At the time of admission of Usha in the hospital, history of receiving burn injuries was recorded as due to fall of kerosene lamp on the victim. It has to be noted that after the cross examination of Dr.Kadam, to remove the ambiguity, he was not reexamined. Other than two witnesses examined on the point of dying declarations, other witnesses do not remain loyal with the prosecution and they turned hostile and hence their testimony cannot be relied upon. 7. Rule of appreciation of multiple dying declarations is laid down by the Apex Court in the matter of “Khushal Rao V/s State of Bombay” AIR 1958 SC 22 : 1958 SCR 552. In the said judgment, the Apex Court had observed that when there are drp {5} Cri.Application No.1865/2010 multiple dying declarations and there is variance in the dying declarations, then to base the conviction on the dying declarations, corroboration is necessary. The trial court has observed in the impugned judgment that the disclosure by the deceased before Dr.Kadam is her first dying declaration, which is suppressed by the prosecution. Facts disclosed in this dying declaration are supported by the Spot Panchanama (Exhibit-11) that kerosene lamp was found at the scene of offence. 8. From the given set of facts, if two views are possible and the view taken by the trial court is a probable one and no perversity is found in the reasoning given in support of the view taken, then no interference is required in such judgment. In substance, the application for leave to appeal is sans merits and hence rejected. Leave refused. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapln1865-10