1 crap692.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 692 OF 2010 The State of Maharashtra ...Applicant VERSUS Balaji Chokoba Dhaware and anr. ...Respondents ..... Shri B.V.Wagh, A.P.P. for applicant Shri V.B.Deshmukh, advocate for respondents ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 9 th June, 2011 PER COURT : 1 Heard learned counsel for the parties. 2 This is an application preferred by the applicant/State seeking leave to file appeal challenging the judgment and order, dated 31.10.2009, rendered by the Ad hoc Additional Sessions Judge, Osmanabad, in Sessions Case No. 15 of 2009, thereby acquitting the respondents (original accused) for the offences 2 crap692.10 punishable under Section 498-A , 306 r/w Section 34 of the Indian Penal Code. 3 Briefly stated, the facts of the case are as follows :- Complainant – Baliram Hanumant Khandekar is the resident of Gaurgaon and deceased Sunita was his sister, who married with accused no.1 Balaji and after marriage, she went to reside at her matrimonial home. Accused no.2 Latabai is allegedly concubine of accused no.1 Balaji. It is alleged that accused no.1 Balaji treated deceased Sunita well for about 10 to 12 years and it is further alleged that he developed illicit relations with accused no.1 Latabai since last two years, and therefore, dispute started between deceased Sunita and accused no.1 Balaji. It is further alleged that on 17.9.2008, accused no.1 Balaji had purchased meat and brought the same to his house for cooking and on the said count, quarrel took place between Sunita, accused no.1 Balaji and accused no.2 Latabai and thereafter accused no.1 Balaji and accused no.2 Latabai assaulted deceased Sunita, which was noted by Sunita’s sister Kavera, since she had visited the house of accused no.1 on the said date. On 18.9.2008, it was noticed that Sunita was absconding since morning and her slipper chappals were lying near the well of Patole, and hence, inquiry was made. However, on 19.9.2008 at 3 crap692.10 about 7.00 p.m. dead body of Sunita was found lying in the well in agricultural land of Patole. Accordingly, A.D. No. 35 of 2008 under Section 174 of the Code of Criminal Procedure was registered on the basis of information given by one Parmeshwar Dhavare. Thereafter, complainant Baliram Hanumant Khandekar, brother of deceased Sunita filed the complaint and offence was registered under Section 306 r/w Section 34 of the Indian Penal Code under C.R. No. 105 of 2008 at Kallam police station on 19.9.2008. 4 Prosecution examined as many as 4 witnesses to substantiate the charges levelled against the respondents i.e. PW1 complainant Baliram Khandekar, brother of Sunita, PW2 Kavera Alte, sister of Sunita, PW3 Tukaram Bhore, panch witness, who turned hostile; and PW4 P.S.I. Ramhari Jadhav, investigating officer. 5 After considering the oral and documentary evidence on record, as well as after considering the rival submissions advanced by the learned counsel for the parties, the learned Trial Judge came to the conclusion that the prosecution failed to bring the guilt at home, and therefore, acquitted the respondents by the impugned judgment and order, dated 31.10.2009. Being aggrieved and dissatisfied by the said impugned judgment and order, the applicant/State has preferred the present application, seeking leave 4 crap692.10 to file appeal challenging the same. 6 I have perused the impugned judgment and order, dated 31.10.2009, as well as perused the R. and P. with the assistance of the learned counsel for the parties. 7 At the out set, admittedly about 10 to 12 years have been passed after the marriage of accused no.1 Balaji and deceased Sunita, and considering the said fact, the learned Trial Judge observed that presumption under Section 113A of the Evidence Act cannot be attributed in the present case and there is no fault therein. Moreover, considering the evidence on record, learned Trial Judge also observed that there is inordinate delay of 3 days in filing the complaint and filing of the complaint by the complainant appears to be after thought, as the same has been filed after discussion with his sister Kavera and the prosecution has not given any plausible explanation in respect of the said delay, which is fatal to the case of prosecution, and apparently, there is no flaw in the said observation made by the learned Trial Judge. Moreover, the Trial Court, after assessing the evidence on record, observed that in order to give colour, the complainant has put the false story that accused no.1 was having illicit relations with accused no.2, but not a single instance of illtreatment and harassment to Sunita by him has been 5 crap692.10 brought before the court, and therefore, considering the entire evidence of the said witness i.e. complainant, it does not inspire confidence and truthfulness, and therefore, same cannot be accepted, and apparently, there is no flaw in the said observation and finding. 8 As regards the death of deceased Sunita, after scrutinizing the evidence on record, the learned Trial Judge observed that the defence taken by the accused appears to be natural and probable that Sunita had been to answer nature’s call towards the land of Mohan Patole and that time she might have fallen down in the well and died, since one slipper pair and tin pot of nature’s call were lying at the verge of well and there were no steps for going into the well and there was grass surrounding the well as stated in the spot panchanama, and therefore, consequently, learned Trial Court observed that possibility cannot be ruled out that Sunita had been near the well for answering nature’s call and that time she might have fallen down in the well, and there is no room for doubt that the death of deceased Sunita was accidental and not suicidal. Moreover, the cause of death given in the postmortem notes Exh.15 is death due to asphyxia due to drowning, which supports the afore said observations and findings. Consequently, the learned Trial Judge observed that the prosecution has utterly failed to prove the 6 crap692.10 charges levelled against the accused, and therefore, they are entitled for acquittal and the said reasoning cannot be faulted with. 9 In the circumstances, after analysing and assessing the evidence on record, the view adopted by he learned Trial Judge, while acquitting the respondents i.e. accused is a possible view and same does not appear to be perverse, and therefore, no interference therein is called for in the appellate jurisdiction, and hence, present application deserves to be rejected. 10 In the result, present application, which is sans merits, stands dismissed. Leave to file appeal stands refused. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/cra692.10 7 crap692.10