1 Criminal Revision Application No.242/2008 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.242 OF 2008 Gangadhar s/o Mashnaji Battalwad, Age 51 years, Occ. Agriculture, R/o village Atkali, Taluka Biloli, District Nanded ... PETITIONER VERSUS 1. Balaji s/o Laxman Aainwar, Age 25 years, Occ. Agriculture 2. Sanjay s/o Laxman Aainwar, Age 25 years, Occ. Agriculture 3. Sow. Mirabai w/o Sanjay Aainwar, Age 28 years, Occ. Household, Nos.1 to 3 All r/o Kotekallur, Tq. Degloor, District Nanded. 4. The State of Maharashtra through Police Station, Ramtirth, Tq, Biloli, District Nanded. (Copy to be served on Public Prosecutor, High Court of Judicature at Bombay, Bench at Aurangabad) ... RESPONDENTS ..... Shri Prashant Nagargoje, Advocate holding for Shri P.R. Katneshwarkar, Advocate for petitioner Shri S.R. Bagal, Advocate holding for Shri D.Y. Nandedkar, advocate for respondent Nos.1 to 3 Shri P.P. More, A.P.P. for respondent No.4/State ..... CORAM : K.U. CHANDIWAL, J. DATED : 22nd June, 2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel for the parties. 2 Criminal Revision Application No.242/2008 2. Acquittal recorded in Sessions Case No.20/2007 for an offence under Sections 498-A, 302 read with Section 34 of the Indian Penal Code by the judgment and order dated 18.8.2008, by learned Additional Sessions Judge, Biloli is questioned by the complainant. The complainant has a grievance, the learned Sessions Judge did not appreciate worth of the evidence of P.W.3 Gangadhar Battalwad and P.W.6 Laxmibai Battalwad and misbranded the same. The complainant also feels that the discovery panchanama of seizure of the poisonous bottle from the field of the accused/ respondent at his instance i.e. organo phosphorous insecticide established by P.W.5 Dhondiba Dongare, the panch, on the ground that he hails from village Atkali i.e. the village of the applicant, he disbelieved to the memorandum panchanama at Exh. 55 is questioned. 3. Deceased Sangita was married to accused No.1 Balaji before 1 1/2 year of the incident. The couple was happy for initial six months as she was properly treated at her matrimonial abode. She allegedly suffered cruelty by the accused Balaji and her in-laws. The root cause for the same was on occasion, deceased Sangitabai had seen Balaji in immoral relations with his sister-in-law Meerabai. This she had disclosed to her parents and consequently, the accused felt that 3 Criminal Revision Application No.242/2008 they were defamed in the society. At one occasion, it is alleged, Sangitabai was attempted to be strangulated. Over the period of time, Sangitabai became pregnant. Consequently, P.W.3 Gangadhar, her father carried her for the purpose of delivery. At such moment, it is alleged, the accused demanded Rs.25,000/- for construction of the house. 4. Since Sangitabai was brought to the parental house (P.W.3), accused Balaji, her husband, visited the house for well being. At such time, he allegedly handed over 5 capsules to her under the pretext that it was essential for her for enabling proper growth of the foetus. Believing her husband, Sangita consumed those 5 capsules at a breath. However, she developed giddiness and vomiting. She was removed to hospital at Degloor at a autorickshaw. The visit of the accused Balaji was witnessed by P.W.6 Laxmibai, a lady residing nearby. She indeed arranged milk for preparing tea. No sooner she saw the accused Balaji hurriedly going, she enquired him why he was doing so, but there was no response and accused Balaji was allegedly seen frightened. Thereafter, in the evening, due to the unbearable pains and cries of deceased sangita, she was taken in the autorickshaw where enquiries were made by P.W.6, P.W.3 Gangadhar and other persons as to what has happened, upon which Sangita allegedly informed that the accused Balaji 4 Criminal Revision Application No.242/2008 has breached faith which she had in him and committed the heinous act. The statements of witnesses were recorded. Post mortem was carried on the body of Sangitabai. Viscera was preserved. Viscera report indicated presence of organo phosphorous insecticide , which correspond to the seizure of the bottle seized at instance of the accused Balaji from his field. The learned Judge questioned as to how the accused Balaji could prepare the capsules of said insecticide as to its expertise. 5. After charge sheet, the charge was explained to the accuse/d respondents. They did not plead guilty and after the charge, trial commenced. Prosecution examined total 8 witnesses. The defence of the accused is of total denial. In his statement under Section 313 of the Criminal Procedure Code, he disputed of his visiting in-laws house and P.W.6 Laxmibai meeting him. The learned Sessions Judge, on evaluation, acquitted the accused/ respondents and hence, as stated above, the revision. 6. With the assistance of the learned counsel for the complainant, I have verified evidence of P.W.3 Gangadhar and P.W.6 Laxmibai. The variance to which learned Sessions Judge has referred attributing interestedness to the witnesses is far 5 Criminal Revision Application No.242/2008 from reality. The essese of evidence of P.W.3 Gangadhar and P.W.6 Laxmibai is not properly appreciated by the learned Sessions Judge. 7. The C.A. report which was tendered, the inquest at Exhibit 44, the spot panchanama at Exhibit 46, the discovery panchanama of the bottle at Exhibit 55, post mortem notes of Sangita at Exhibit 61 should have been taken into consideration while dissecting and rather criticising evidence of P.W.3 Gangadhar and P.W.6 Laxmibai. Evidence of the Medical Officer P.W.7 Dr. Venkat Malshetwar should have been discussed either way. The learned Judge was apparently swayed as the witnesses to be belonging from the same village and he surmised, witnesses wanted to give mileage to the cause of the complainant. In such a heinous mater of nature, as indicated above, where the bride lost her precious life when she was pregnant, it is unbelievable that she would, without any cause and remorse, would commit suicide at parental house. This fact should have been considered by the learned Sessions Judge as to the circumstance and also the accused Balaji to be last seen in the company of the wife. The judgment should be true reflection of law and facts, it need not shower charity to undeserved. In such events, truth gets perverted or garbled. 6 Criminal Revision Application No.242/2008 8. It is well settled, the High Court has full power to review at large the evidence, upon which an order of acquittal is recorded by the learned Sessions Judge and to reach the conclusion, upon the evidence, the order of acquittal should be reversed. The precaution, which is expected is to give proper weight and consideration to the evidence and credibility of the witnesses. There is no quarrel, at all the stages the presumption of innocence in favour of the accused flows with full swing. Such presumption, however, has its inbuilt limitation and the witnesses should not be discarded being from same village or to be in little variance. They are not tutored witnesses. A straitjacket evidence is not expected from a honest gullible witness and particularly a villager. He may on occasion overlap events, as per his own calculations, but that will not thwart the case. The improbability to the presence of P.W.6 Laxmibai steemed in the discussion is hypertechnical. All these features certainly invite to interfere the order. It is made clear, the learned Sessions Judge shall independently assess the evidence and come to any conclusion provided the judgment should be ascribing reasons for such view, which shall be on marshalling. 9. The survey of above facts calls for interference in the order of acquittal recorded by the learned Sessions Judge. 7 Criminal Revision Application No.242/2008 In the result, the criminal revision application is allowed. The judgment and order of acquittal is quashed and set aside. The matter is remitted to the learned Sessions Judge at Biloli, to afresh decide as to the worth of evidence without being influenced by any observations made hereinabove. The accused/ respondents as also the complainant will appear before the learned Additional Sessions Judge on 18th July 2011. The learned Sessions Judge, considering the nature of the matter and the volume of evidence, shall expeditiously dispose of the same within four months. The accused Balaji is at liberty, after surrender, to move an application for bail, and the learned Sessions Judge shall decide the same independently. Rule made absolute in above terms. (K.U. CHANDIWAL, J. )