Bombay High Court
The State Of Maharashtra vs Shaikh Khalil S/O. Shaikh Nabi on 14 September, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
-1- ALS-207-2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY STATE NO.207 OF 2018
The State of Maharashtra,
Through Police Station Officer,
Police Station, Khultabad,
District Aurangabad. ... Applicant
(Orig. Informant)
Versus
Shaikh Khalil s/o. Shaikh Nabi,
Age : 40 years, Occu. Nil,
R/o. Padali, Tq. Khultabad,
District : Aurangabad ... Respondent
(Orig. Accused)
...
Mr. S. D. Ghayal, APP for Applicant - State
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATED : 14th SEPTEMBER, 2023
ORDER (PER ABHAY S. WAGHWASE, J.) :
1. Getting dissatisfied and aggrieved by the judgment and
order of acquittal passed by learned Additional Sessions Judge-3,
Aurangabad in Sessions Case No. 338 of 2011, State is hereby
seeking leave of this Court by invoking 378(1)(b) of the Code of
Criminal Procedure (Cr.P.C.).
2. According to learned APP, respondent was charge-
sheeted for commission of offence under sections 302, 323 and 504
-2- ALS-207-2018
of Indian Penal Code (IPC). Respondent - husband had incinerated
his wife, who had objected his bad vices. That, on receipt of MLC
dying declarations of deceased were recorded. Both dying
declarations are consistent about role of respondent. There was no
patent variance or contradictions in the same. It is emphasized by
learned APP that even learned trial court in its judgment, more
particularly in paragraph no. 24 has admitted that death of
deceased was homicidal one and that accused had poured kerosene
over his wife and has set her on fire. However, still learned trial
Court has unfortunately acquitted the accused. Thus, according to
him there is total non application of mind and failure to adopt and
apply law on dying declaration. Therefore, there is a good case on
merits in appeal and so he prays to grant leave.
3. In the light of above submissions, we have evaluated
the evidence on record, which is brought before us by prosecution
itself. It seems that in support of its case and charges, prosecution
has examined in all 8 witnesses. Admittedly, case of prosecution is
based on dying dying declarations (Exh.84 and Exh.38). Therefore,
we have gone through the both dying declarations.
4. PW1 Pralhad Ghule, Special Executive Magistrate
seems to have recorded dying declaration (Exh.38) on 22.05.2011,
-3- ALS-207-2018
which is in question answer form. To the question about
occurrence, answer is noted (in translated form) that "her
husband used to consume liquor everyday. On 21.05.2011, since
evening husband beat her upto night 3.00 a.m.. Thereafter,
husband poured kerosene on her person and ignited her". Whereas
in dying declaration (Exh.84) which is also recorded on
22.05.2011, statement is given that, on 22.05.2011 around 4:00
a.m. husband did not allow her to sleep and out of anger she herself
poured kerosene on her and thereafter husband threw burning
match stick on her. Therefore, apparently both dying declarations
are not consistent.
5. Another special feature of this case is that there is MLC
at the instance of medical authorities informing police about
suicidal burns.
Therefore, with such quality of material on record, we
do not find any error committed by learned trial court in
disbelieving the case of prosecution. For above reasons, we too are
of the opinion that dying declarations fail to inspire confidence
being inconsistent. Consequently, there being no merits, we
proceed to pass following order :-
-4- ALS-207-2018
ORDER
The application is hereby rejected.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
Tandale
Signed by: Manoj Tandale
Designation: PA To Honourable Judge
Date: 16/09/2023 10:57:09
