Crim. Appln. APPA No.461 of 2011 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (APPA) NO.461 OF 2011. IN CRIMINAL APPEAL NO. OF 2011. APPELLANT : State of Maharashtra -VERSUS- RESPONDENT: Vijay S/o Sheshrao Shid, Mr. R. S. Nayak, APP for the appellant - State. CORAM: P.V. HARDAS AND S.B. DESHMUKH, JJ. DATED: 6th SEPTEMBER 2011. ORAL ORDER : (Per S. B. DESHMUKH J) 1. Heard learned APP for the applicant State. 2. This application is filed by the State under Section 378(3) of the Criminal Procedure Code, seeking leave of this Court to file an appeal against the Judgment and order of acquittal, recorded by the Ad-hoc Additional Sessions Judge-1, Wardha, on April, 30th 2011, in Sessions Trial No.34 of 2009. This application is coupled with the appeal filed on behalf of the appellant State. 3. This application was before this Court on August 10th, 2011. This Court after hearing the learned APP called for the Record and Proceedings. Record and Proceedings is thus available for our perusal. Crim. Appln. APPA No.461 of 2011 2 4. The respondent in this application was the accused in Sessions Trial No.34 of 2009. The respondent in this application is referred to his status in Sessions Trial as the accused for the sake of convenience. PW-4 Mr. Gopal Mahakalkar had lodged the report on 6-10-2008 at Hinganghat Police Station. PW-4 Gopal Mahakalkar is the brother of deceased Sandhya. PW-4 Gopal in his report has alleged that the marriage of deceased Sandhya and the accused was solemnized on April 26th 2004 at village Paloti Tq. & Dist. Wardha. At the time of marriage, an amount of Rs.50,000/- was agreed to be paid towards dowry. PW-4 Gopal and family members of deceased Sandhya could not make the payment of RS.50,000/- before the marriage. An amount of Rs.25,000/- was only paid before the marriage towards dowry. After the marriage, Sandhya resumed cohabitation with accused at Village Savli, Tah. Hinganghat, Dist. Wardha. The demand of remaining amount of agreed dowry i.e. Rs.25,000/- was made by the accused through Sandhya to her family members. It is alleged that the deceased Sandhya was ill-treated by the accused. It is also the case of the prosecution that the harassment and beating to deceased Sandhya by accused Vijay was after consuming liquor and on the ground that she delivered two daughters. After about a month of cohabitation, deceased Sandhya had been to her parents place and disclosed ill-treatment by Vijay to PW-4 Gopal. She also expressed apprehension to her life. According to the prosecution, Vijay sent Sandhya to village Paloti for bringing money from her family members. An amount of Rs.20,000/- was given to Sandhya for making payment of said amount to Vijay. Thus, Rs.25,000/- was the amount paid at the time of marriage and Rs.20,000/- after the marriage totaling to Rs.45,000/-. The ill-treatment was Crim. Appln. APPA No.461 of 2011 3 continued to Sandhya for bringing remaining amount of Rs.5000/- of agreed dowry. Apart from this, it is also alleged by the prosecution that the demand was made for bringing money to purchase Commander Jeep by Vijay. October 4th, 2008 is the crucial date in the case on hand. According to PW-4 Gopal, he received telephone call from the accused to send his mother to his house at village Savli. This telephone call was with a threat that in case of failure, Vijay would tie Sandhya with auto-rickshaw and take her to village Paloti. On the same night i.e. on 4-10-2008, at about 00.00 hours, PW-4 Gopal received another phone call from Vijay to inform that Sandhya was burnt at 11 p.m. PW-4 Gopal was requested to attend Sevagram Hospital at Wardha. Accordingly, PW-1 Gopal, his mother and other relatives had been to Sevagram Hospital at Wardha. Funeral took place at village Savli. 5. The Crime No.315 of 2008, which was registered on the report lodged by PW-4 Gopal, was investigated into by the Police Officer concerned. On completion of the investigation, the chargeshset was submitted on 9-2-2009 to the Court of the learned Judicial Magistrate First Class, Hinganghat. The offences punishable under Section 498-A and 304-B of the Indian Penal Code were registered and the chargesheet was filed against the accused in the Court. The case was committed to the Court of Sessions at Wardha. The learned Additional Sessions Judge-1, Wardha, framed the charge at Exh.10 on 15-1-2010 for the offences punishable under Section 498-A and 304-B of the Indian Penal Code. The charge was explained and read over to the accused who denied the same and claimed to be tried. On trial,the learned Trial Judge acquitted the accused of the offence with which he was charged Crim. Appln. APPA No.461 of 2011 4 and tried. The Judgment of the acquittal is delivered by the learned Trial Judge on April 30th, 2011. As we have referred to in foregoing paragraph, the said Judgment and order of acquittal is questioned and leave to file appeal is sought by the applicant State in this Criminal Application. 6. In support of the case of the prosecution, on behalf of the prosecution, 12 witnesses have been examined. At the outset, we have noticed that the mother of deceased Sandhya is not examined on behalf of the prosecution. To establish the ingredients of Section 498-A of the Indian Penal, our attention was invited to the evidence of PW-4 Gopal brother of deceased Sandhya, PW-7 Madhuri Lonkar sister of deceased Sandhya and PW-8 Deepak Bhagwanji Mahajan maternal uncle of deceased Sandhya. All these witnesses i.e. PW-4 Gopal, PW-7 Madhuri and PW-8 Deepak obviously are related to deceased Sandhya, but the Trial Judge keeping in mind this relationship seems to have cautiously appreciated the oral evidence of these witnesses. The claim of the prosecution that Rs.50,000/- was the amount agreed to be paid towards dowry at the time of marriage and Rs.25,000/- was paid initially has been considered by the learned Trial Judge. An amount of Rs.20,000/- which was subsequently paid to Vijay through Sandhya, according to the prosecution, was withdrawn from the bank account of her mother. To establish this fact, PW-11 Anil an employee of the Punjab National Bank has been examined on behalf of the prosecution. Withdrawal of the amount of Rs.20,000/- from the Bank of the mother of the deceased Sandhya is brought on record. This withdrawal is dated 23-10-2004 from the account of Indira i.e. mother of deceased Sandhya. The learned Trial Judge has justifiably considered the date of Crim. Appln. APPA No.461 of 2011 5 marriage as April 26th 2004, earlier payment of Rs.25,000/- as dowry amount at the time of marriage and Rs.20,000/- on October 2004 after the marriage and reached to a conclusion that Rs.45,000/- factually were paid to Vijay. Assuming for the sake of argument that Rs.50,000/- was the amount of dowry settled between Vijay and family members of deceased Sandhya, according to the learned Trial Judge, Rs.45,000/- was paid and remaining was the amount of Rs.5000/- to be paid on account of dowry to the accused. The learned Trial Judge has considered the claim of PW-7 Madhuti sister of deceased Sandhya that ill-treatment was extended to Sandhya on account of balance amount of Rs.5000/- i.e. the amount of dowry. This part of the evidence of PW-7 Madhuri is colated by the learned Trial Judge with the evidence of PW-8 Deepak. The learned Trial Judge finds that PW-8 Deepak is silent on the point of alleged ill-treatment by Vijay to deceased Sandhya for unpaid amount of Rs.5000/- towards dowry. The evidence of PW-4 Gopal is also considered by the learned Trial Judge. PW-4 Gopal the complainant has stated in his evidence that Mr. Gopal Talmale is brother inn law (husband of her another sister) had gone to the house of accused and witnessed beating and assault to Sandhya by Vijay. The claim of PW-7 Madhuri is that the mother of deceased Sandhya had gone two days before the date of the incident to the house of Vijay is also considered by the learned Trial Judge. The contention on behalf of the prosecution that the deceased Sandhya was beaten by Vijay in presence of her mother and PW-4 Gopal 2 days prior to the death of Sandhya is also taken into account by the learned Trial Judge. The learned Trial Judge observed that on this background, it was expected by the prosecution to examine the mother of deceased Sandhya i.e. Indirabai who indisputably is not Crim. Appln. APPA No.461 of 2011 6 examined. The learned Trial Judge considered the material brought on record and reached to a conclusion that the cruelty and or harassment to deceased Sandhya was on account of non payment of amount of dowry is not proved. 7. We ourselves with the assistance of the learned APP has considered the oral evidence of PW-1 Murlidhar Kamble, PW-7 Madhuri Lonkar and PW-8 Deepak Mahajan examined on behalf of the prosecution. We do not find perversity in the finding recorded by the learned Trial Judge in appreciation of the evidence of these witnesses. It is the contention raised on behalf of the accused that there was no demand of money either from deceased Sandhya or PW-4 Gopal and other family members by Vijay. There was no ill- treatment to Sandhya on this count i.e. demand of dowry, non payment thereof etc. The accused, on the contrary, has contended that he did extend financial and other help to PW-4 Gopal for construction of house. On behalf of the defence, two witnesses have been examined namely DW-1 Laxman Bahe and DW-2 Gajanan Bahurao Sontakke. DW-2 Gajanan is the owner of Brick Kiln at Dhotra. His evidence shows that in the year 2006, Vijay gave him instructions to deliver 15,000/- bricks for construction work of house of PW-4 Gopal. It was an amount of Rs.30,000/- towards the payment of these bricks borne by Vijay. The bricks were delivered at the house of PW-4 Gopal at Paloti and importantly, payment was made by Vijay, according to the evidence of DW-2 Gajanan Sontakke. The other witness examined on behalf of the defence is Mr. Laxman Bahe. He testified before the learned Trial Judge that the accused had given a contract of construction work of the house of PW-4 Gopal at village Paloti for Rs.30,000/- and an Crim. Appln. APPA No.461 of 2011 7 amount of Rs.2000/- was paid to him by PW-4 Gopal and Rs.25,000/- was the amount paid by Vijay. The evidence of these two witnesses has been accepted by the learned Trial Judge and disbelieved the contention of the prosecution that the ill-treatment and harassment was caused by Vijay to deceased Sandhya on account of non payment of balance amount of Rs.5000/-. Apart from this, the learned Trial Judge has also considered the evidence of Krushna Kadu PW-2 a neighbour examined on behalf of the prosecution. In his cross examination, PW-2 Krushna states that he did not see any quarrel between Vijay and his wife since their marriage. He has further stated that the whole village was surprised due to the death of Sandhya. With this evidence, the learned Trial Judge recorded a finding that the prosecution has failed to establish the offence punishable under Section 498-A of the Indian Penal Code. 8. The accused also had been charged for the offence punishable under Section 304-B of the Indian Penal Code. The learned Trial Judge has considered the evidence of PW-9 Dr. Atul Keche, Medical Officer, Sevagram Hospital, Wardha and the inquest panchanama. It appears from the evidence of the Medical Officer and the Postmortem report that Sandhya had sustained 100% burn injuries and succumbed to the injuries. There is no material on record for the offence punishable under Section 304-B of the Indian Penal Code against the accused. Even though the death of deceased Sandhya occurred otherwise than under normal circumstances and within a period of 7 years from the date of her marriage with the accused. 9. It is not the case that admissible evidence has not Crim. Appln. APPA No.461 of 2011 8 been considered by the learned Trial Judge and inadmissible material is taken into account for reaching to the conclusion of acquittal of the respondent. We do not find any perversity for granting leave to the State. 10. Criminal Application stands dismissed. Leave is refused. JUDGE JUDGE //MULEY//