1 98911 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 989 OF 2011 The State of Maharashtra (at the instance of Nehrunagar Police Station, C.R. NO. 112/2009, C.C. No. 548/PW/2009) ...Applicant V/s. 1. Ramchandra Appasaheb Patil Age – 31 years, Occu.: Agriculturist, 2. Sambhaji Appasaheb Patil, Age – 37 years, Occu.: Agriculturist, 3. Sunil Appasaheb Patil, Age – 31 years, Occu.: Service, 4. Appasaheb Nivrutti Patil, Age – 64 years, Occu.: Retired, 5. Malati Appasaheb Patil, Age – 57 years, Occu.: Housewife, All are R/a – Post Bisur, Tal. Miraj, Dist. Sangli ...Respondents WITH CRIMINAL REVISION APPLICATION NO. 443 OF 2011 Sopan Yeshwant Pawar Age: 57 (years), Occu: Service, R/o. Room No. 5, Gr. Fl., Railway Police Quarter, Sir Bhalchandra Road, Dadar (E), Mumbai 400 014 ...Applicant V/s. 2 98911 1. The State of Maharashtra 2. Ramchandra Appasaheb Patil Age – 31 years, Occu.: Service, 3. Sambhaji Appasaheb Patil, Age – 37 years, Occu.: Agriculturist, 4. Sunil Appasaheb Patil, Age – 30 years, Occu.: Service, 5. Appasaheb Nivrutti Patil, Age – 64 years, Occu.: Agriculturist, 6. Malati Appasaheb Patil, Age – 57 years, Occu.: Housewife, Resp. No. 2 to 6 R/o. At Post Bisur, Tal. Miraj, Dist. Sangli ...Respondents Ms. M.H. Mhatre, A.P.P., for the Applicant in Criminal Application and Respondent No. 1 in Criminal Revision Application Mr. M.S. Mohite for the Original Accused Mr. Shekhar Ingawale for the Applicant in Criminal Revision Application CORAM: A.M. KHANWILKAR AND R.G. KETKAR, JJ. DATE: DECEMBER 23, 2011 P.C.:- The State has filed Application for Leave to Appeal under Section 378 (3) of the Criminal Procedure Code, 1973 to question the 3 98911 correctness of judgment and order dated 12th May, 2011 passed by the Additional Sessions Judge, Greater Mumbai, at Sewree, in Sessions Case No. 464 of 2009, whereby acquitted the 5 accused (respondents herein) from the charge of offence punishable under Sections 498-A, 304-B and 306 read with Section 34 of the Indian Penal Code. The Criminal Revision Application is filed by the complainant challenging the self- same decision. 2. We have heard the counsel appearing for the respective parties at length. We have also perused the depositions of the concerned witnesses and the judgment under challenge. 3. Although we may not agree with the findings of the Sessions Court in toto, however, we are in agreement with the final conclusion reached by the trial Court that the accused deserve benefit of doubt and ought to be acquitted of all the charges. In our opinion, the view expressed by the Sessions Court in paragraph 26 is a possible view, which entitles the accused to benefit of doubt. The prosecution has failed to investigate the vital lead, which came on record as Exhibit 78, pursuant to the direction of this Court in Criminal Application No. 497 of 2009. In spite of direction by this Court to further investigate the matter, 4 98911 the Investigating Officer, for reasons best known to him, merely recorded the statements of the witnesses whose statements were already recorded by him, which form part of the charge-sheet filed before the concerned Court. Thus, the Investigating Officer merely made farce of re-investigation. 4. At the same time, because of the vital document, which came on record pursuant to order of this Court (Exhibit 78), being call record pertaining to Mobile No. 9987335801 (mobile of one Gaikwad) and 9766977170 (mobile of Nalini), the minimum that was expected of the Investigating Officer is to ascertain the ownership of the above-stated mobile numbers. That was inevitable, in view of the defence of the accused that Nalini must have committed suicide, because she was in immense love with her colleague in her office where she was working. The call record indicates that, even on the date of marriage, the mobile allegedly used by Nalini was used extensively. Almost 50 calls were made by callers to each other in one day. This unusual pattern deserved to be thoroughly investigated, which the Investigating Officer has completely failed to do. If the said lead was to be taken forward, it is possible that the defence version would be substantiated, and, in which case, the allegation made by the complainant against the accused about 5 98911 inflicting cruelty, which forced Nalini to commit suicide, would fall to the ground, being diametrically opposite to fact situation. It is possible that, therefore, the Investigating Officer did not investigate the said matter in right earnest; rather, he made no effort whatsoever to find out the genuineness of the information contained in Exhibit 78. We are in agreement with the opinion of the trial Court that that, by itself, creates strong suspicious circumstance going against the prosecution. 5. It is well-established position that the defence is not required to prove its case beyond reasonable doubt. The defence can rely on preponderances and probabilities of the case. The inaction of the Investigating Officer may be with purpose, as the complainant is also a senior police officer of the rank of A.P.I. In the backdrop of such fatal deficiency in the prosecution case, no fault can be found with the opinion reached by the trial Court that the accused deserve benefit of doubt, and hence, are required to be acquitted. 6. Before parting, we may place on record our concern about the manner in which the investigation of the case was handled by the Investigating Officer (P.W. 12), in spite of the direction by this Court to re-investigate the same, and more particularly, the direction by the trial 6 98911 Court to exhibit the call record, which was exhibited as Exhibit 78 during the trial. Whether this was done with purpose by the Investigating Officer or otherwise, is a matter warranting departmental enquiry against the said officer. Suffice it to observe that it is certainly a case of casualness in the investigation bordering on dereliction of duty. Even that is unbecoming of any Investigating Officer, who is expected to not only ponder and investigate on the lines of the complainant’s version, but also the defence version, to find out the truth, so that the real culprit can be brought to book, and not persecute the innocent person on the basis of false and unsubstantiated allegations. 7. We may also place on record that if, during the departmental enquiry against P.W. 12, it is revealed that he had acted under the dictation of P.W. 1, the complainant, who was also police officer of the rank of A.P.I., in that case, even P.W. 1 will have to be proceeded by way of departmental action. 8. For the aforesaid reasons, we dismiss the Application for Leave to Appeal filed by the State as well as the Revision Application filed by the complainant questioning the acquittal of the accused from all the charges. 7 98911 9. Copy of this order be forwarded to the Secretary, Home Department, Government of Maharashtra, for information and necessary action, in view of the observations contained in this order. R.G. KETKAR, J. A.M. KHANWILKAR, J.