P. V. HARDAS, J.:- The appellants who stand convicted for offence ,unishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to imprisonment for life and to pay find ofRs.2,0001- each in default of payment of fine, to further undergo imprisonment of 2 years, by the Additional Sessions Judge, Basmathnagar, by judgment dated 10-5-2007, in Sessions Trial No.34/05, by this appeal questions the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: P.W.3 Pardeshi a Police Constable attached to the Jawala Bazar outpost, received a communication from police Head Constable of Jawala Bazar Police Station from the Pri mary Health Centre, Jawala Bazar regarding admission of injured Archana in the Civil Hospital at Parbhani. The Police Sub-Inspector on duty, therefore, directed P.W.3 Police Head Constable Pardesh; to record declaration of injured Archana. The communication is at Exh.19. Accordingly, P.W.3 Head Constable Pardeshi went to the civil hospital for recording the dying declaration. He issued a memorandum to the Tahsildar. Parbhani for recording the dying declaration. After ascertaining the condition of injured Archana to give the statement, Police Head Constable P.W.3 Pardeshi accordingly recorded the statement of Archana at Exh.21. On the basis of the said statement, an offence vide Crime No.72/05 came to be registered under Sections 498-A, 307 read with 34 of the Indian Penal Code. 3. On registration of the offence therefore. the investigation came to be handed over to P.W.9 A.P.l. More. It also appears 2009 ALL MR (Cn) - JUllt .~ -----= .... _ .. __ .... ~ 1708 ';;., '. Tulshiram Waman Pawade Vs. State afMaharashtra 2009 that the Executive Magistrate P.W.7 Fulpagar recorded the dying declaration of Archana at Exh.31. P.W.9 A.P.I. More on being entrusted with the investigation, drew scene of offence panchanama at Exh.33. From the scene of the offence. certain incriminating articles consisting of the kerosene can, match box etc. came to be seized. The seized articles were forwarded to the Chemical Analyser through P.W.4 Baburao. Further to the completion of the investigation, a charge-sheet against appellant came to be filled. 4, On committal of the case to Court of Sessions. Trial Court vide Exh.ll framed a charge against appellants for offences punishable under Sections 498-A, 302 r.w. 34 of theIndian Penal Code. The seized articles were forwarded to the Chemical Analyser through P.W.4 Baburao. Further to the completion of the investigation, a charge-sheet against appellant came to be filled. 4, On committal of the case to Court of Sessions. Trial Court vide Exh.ll framed a charge against appellants for offences punishable under Sections 498-A, 302 r.w. 34 of theIndian Penal Code. All the accused denied their guilt and claimed to be tried. The prosecution. in support of its case, examined 10 witnesses. In order to support the charge for an offence punishable under Section 498-A of the Indian Penal Code. prosecution examined P.W.! Udhav and P.W.S Godawari i.e. the parents of deceased Archana. The trial Court upon appreciation of their evidence, acquitted the appellants for offence punishable under Section 498-A r.w. 34 oftheIndian Penal Code, but convicted and sentenced the appellants as aforestated. Hence the present appeal. 5. The pivot of the prosecution revolves around the two dying declarations. As stated by us above, Exh.2l is the dying declaration first in point of time, which came to be recorded by P.W.3 Police Head Constable Pardeshi. On the strength of the said dying declaration, an offence came to be registered. Though P.W.3 Police Head Constable Pardeshi has been crossed examined at length, nothing of importance has been elicited in his crossexamination to doubt the veracity ofthe evidence of this witness. Similarly, P.W.7 Fulpagarthe Executive Magistrate had recorded the dying declaration at Exh.3l, he too has been extensively cross-examined but nothing of importance has been elicited in his crossexamination. 2009 ALL MR rCr;) JUlie 6. Mr. Deshmukh, learned counsel for the appellants has urged before us that the aforesaid dying declarations at Exhs.2! and 31 cannot be relied upon in support of the charge under Section 302 of the Indian Penal Code as both the witnesses i.e. P.W.3 Police Head Constable Pardeshi and P.W.7 Executive Magistrate Fulpagar, have not proved the contents of the dying declarations. Learned Counsel for the appellants has placed reliance on the judgment of the Division Bench of this Court in Deorao s/o, Sonbaji Bhalerao and Anr. Ys. State of Maharashtra reported in 2008 ALL MR (Cri) 1921 and in Jivan Tulsiram Dhavali and Anr. Ys. State of Maharashtra reported in 2008 ALL MR (Cri) 2018. Learned Counsel for the appellants has placed reliance on the judgment of the Division Bench of this Court in Deorao s/o, Sonbaji Bhalerao and Anr. Ys. State of Maharashtra reported in 2008 ALL MR (Cri) 1921 and in Jivan Tulsiram Dhavali and Anr. Ys. State of Maharashtra reported in 2008 ALL MR (Cri) 2018. Both the judgments in uncertain terms lay down that it is uncomfortable for the prosecution to prove the contents of the written dying declaration which is scribed by the witness on the basis of the oral statement of the injured. In the present case, none of the witnesses have referred to the contents of what was told to them by the declarant. The evidence of these witnesses is extremely vague and sketchy and beyond stating that they had recorded the dying declaration and the said dying declaration is in their hand-writing and bears their signature as well as the signature of the declarant they have not deposed as to what was told to them by the declarant. We are in respectful agreement with the ratio laid down by the Division Bench of this Court in the aforesaid two judgments and in the absence of adequate proof relating to the dying declaration, particularly the contents ofthe dying declaration that is what was told to these witnesses by the declarant, no reliance can be placed on the said dying declarations. 7, It has been urged by the learned Assistant Public Prosecutor for the respondentState that the prosecution has also placed reliance on the oral dying declaration alleged to have been made by Archana to P.W.I Udhav and P.W.S Godavari parents of Archana. A reference in this regard may be made to the ,;- .. . - •• : .. " ~----------~ ALL MR (Cri) Tulshiram Waman Pawade Vs. State of Maharashtra 1709 testimony of P.W.I Udhav. Udhav states that he had rushed the hospital at about 5.30 p.m. and Archana had made the disclosure to him that the accused no.1 i.e. husband of Archana had picked up quarrel with her, thereafter Archana was caught by accused No.1 and accused No.2 poured kerosene on her, while she was set ablaze by accused No.3. Thus, according to the dying declaration, overt act is attributed to all the three accused. In crossexamination, he has admitted that there is a police chowki at a distance of 500 ft. Thus, according to the dying declaration, overt act is attributed to all the three accused. In crossexamination, he has admitted that there is a police chowki at a distance of 500 ft. towards the south of his house. He has admitted that she had not lodged any complaint with the police prior to the incident regarding ill-treatment. Further, it appears that after Archana had made the disclosure to him, he had not reported the matter to the police but had maintained a stoic silence. Similar is the evidence of P.W.5 Godavari. Undisputedly. the first dying declaration at Exh.21 came to be recorded after 7.30 p.m .. Thus, there is no reason as to why the parents of Archana would maintain a stoic silence and not disclose the incident to the police if Archana had really disclosed to them that she was set ablaze by the accused. The story of Archana being set ablaze by the accused also appears to be doubtful in the light of evidence of P.W.1O Dr. Kalidas Choudhari. Dr. Choudhari who had treated Archana in the hospital and had also examined her at the time of her dying declaration, has admitted in the cross-examination that on perusal of the original papers of the ward where Archana had been admitted, it appears that Archana had been first given treatment by medical officer of Primary Health Centre, J awala Bazar. It also appears that Archana came to be admitted in the Primary Health Centre, Jawala Bazar on 14-4-2005 at 12.55 p.m. and medical officer who had attended Archana in the said Primary Health had recorded that Archana had made disclosure that she had accidentally sustained burn injuries. It appears from the evidence ofP.W.1O that when this disclosure statement had been made by Archana, her brother was present in the hospital. Thus, it appears that Archana was not pressurised by her in-laws in making the first disclosure that she had accidentally sustained fire. It further appears that at the Primary Health Centre itself Archana had been administered injection of Pathedine. The medical officer has admitted that Pathedine would cause drowsiness and in fact a patient may become semiconscious and this condition would last for 12 to 24 hours. It further appears that at the Primary Health Centre itself Archana had been administered injection of Pathedine. The medical officer has admitted that Pathedine would cause drowsiness and in fact a patient may become semiconscious and this condition would last for 12 to 24 hours. Immediately, on the same day at about 7.30 p.m. the dying declaration at Exh.21 and subsequently dying declaration at Exhs.2I and 31 but also it appears that Archana may not be in a fit mental condition to give her statement particularly as injection of Pat he dine had been administered to her less than 8 hours prior to the recording of the dying declaration. Further doubt is created about the genuineness of the dying declaration at Exhs.21 and 31 in the light of the earliest disclosure in the point of time made by Archana to the medical officer of Primary Health Centre, Jawala Bazar that she had sustained the burns accidentally. The aforesaid statement had been made in the presence of her brother. In the background of the aforesaid evidence, according to us. no reliance can be placed on the dying declarations at Exhs.21 and 31 and also on the oral dying declarations alleged to have been made by Archana to her father P.W.I Udhav and her mother P.W.5 Godavari. According to us, appellants are entitled to be given a benefit of doubt. 8. Mr. Deshmukh, learned counsel for the appellants, has tendered before us copy of the Post-Mortem report pertaining to appellant No.2 Waman Sopanrao Pawade. It appears that appellant No.2 Waman Sopanrao Pawade died on 13-2-2008. The aforesaid provisional post-mortem report pertaining to appellant No.2 is taken on record and marked "X" for the purpose of identification. In the light of that, therefore, this appeal would abate as against appellant No.2 is concerned. 9. After giving an anxious consideration to the submissions advanced :'.009 ALL MR (Cri)• JUllt r - 1710 Anand Prafulla Behra V s. State of Maharashtra 2009 before us by the learned counsel for the appellants, according to us, the appellants are entitled to be given benefit of doubt. Accordingly, this Criminal Appeal is allowed and conviction of the appellants is hereby quashed and set aside and the appellants are acquitted of the offences with which they were charged and convicted. Fine if paid by the appellants be refunded to them. Accordingly, this Criminal Appeal is allowed and conviction of the appellants is hereby quashed and set aside and the appellants are acquitted of the offences with which they were charged and convicted. Fine if paid by the appellants be refunded to them. Since appellants are in jail, they be released forthwith, if not wanted in any other case. Appeal allowed. 2009 ALL MR (Cri) 1710 IN THE HlGH COURT OF JUmCA TURE AT BOMBAY Smt. RANJANA DESAI & R. G. KETKAR, JJ. Anand Prafulla Behra Vs. State of Maharashtra Criminal Application No.354 of 2009 IN Criminal Appeal No.2I7 of2oo9 24th April, 2009, Mr. S. R. CHITNIS, for the Applicant. Ms. U. V. KEJRIWAL, APP, for the State. Criminal p,c. (1973), Ss.439, 374 - Bail Grant of - Appeal against conviction - No cogent and credible evidence on record which can connect the accused to crime in question - Applicant/accused having no criminal antecidents - Applicant/accused, held, entitled to be released on bail. (Para 2) JUDGMENT:- Applicant was tried in Sessions Case No, IS7 of 2006 alongwith three others for the offence punishable u/s.302 read with Section 34 of the Indian Penal Code, and Sections 397 & 394 of the Indian Penal Code. By judgment and order dated 1-1-2009 learned 2009 ALL MR (Cri)• June Sessions Judge convicted the applicant for the offence punishable u/s,302 read with Section 34 of the IPC and sentenced him to suffer Life Imprisonment. Applicant was also convicted u/ss.397 & 394 of the IPC and was sentenced to suffer 7 years RL for each of the offences, Substantive sentences are to run concurrently, Appeal preferred by the applicant is admitted, and this is his application for bail. 2. We have heard learned Counsel for the applicant at some length, We have also heard learned APP for the State, Prosecution case rests on eye-witness PW-l Shr;, Vijay Tambde who was with the deceased at the time of incident. However, PW -I Vijay Tambde has categorically stated that he was unable to identify the accused, No identification parade is held in this case, There is no Chemical Analyser's report indicating the blood group of the applicant. Only cash ofRs,IOO was found with the applicant. However, PW -I Vijay Tambde has categorically stated that he was unable to identify the accused, No identification parade is held in this case, There is no Chemical Analyser's report indicating the blood group of the applicant. Only cash ofRs,IOO was found with the applicant. The currency notes had no special markings, In our prima-facie opinion, there is no cogent and credible evidence On record which can connect the applicant to the crime in question, On a query made by the Court Mrs, Kejriwal, learned APP stated that the applicant has nO antecidents, Applicant should therefore, in our opinion, be released on baiL Hence, the following order:- "Applicant - Anand Prafulla Behra is ordered to be released on bail in the sum of Rs.IO,OOO/- with One or two local sureties to make up the amount. While on bail he shall attend to Vashi Police Station once in a week i,e, on every Monday between 6 p, m, toSp,m." 3, Application stands disposed of Application allowed.