1 cr-apln-13-11 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPLICATION NO. 13 OF 2011 (Leave to file an Appeal) The State of Maharashtra ..Applicant Vs. Jakir Ahmed Pachapuri and Ors. ..Respondents .... Mrs. A.S.Pai A.P.P. for the State Mr. Ujwal Angadsurve Adv. for original complainant .... CORAM : B.H.MARLAPALLE AND U.D.SALVI, JJ. DATE : FEBRUARY 02, 2011 P.C.: 1 We have heard Mrs. A.S. Pai, the learned A.P.P. Mr. Angadsurve appears for original complainant who is not a party before us. 2 This application has been filed by the State of Maharashtra seeking leave to appeal under Section 378(3) of Cr.P.C. against the order of acquittal passed in Sessions Case No. 75 of 2009 by the learned Joint 2 cr-apln-13-11 Ad hoc Additional Sessions Judge, Sewree, Mumbai against the accused nos.2 to 4. 3 Deceased Seema was the wife of accused no.1 and their marriage was performed on 1.12.2005 and while she was cohabiting with her husband, in the night of 25.10.2008 she died of an unnatural death. Consequently, on the basis of the complaint made by P.W. 1 Sayyed Juber Ali, an offence came to be registered against all the accused and they came to be put on trial in Sessions Case No. 75 of 2009 for the offences punishable under Sections 498-A, 306 and 304-B read with Section 34 of the Indian Penal Code. 4 The prosecution examined in all 9 witnesses whereas the defence examined two witnesses i.e. accused no.1 as D.W.1 and Smt. Mehjabi Nazir Munshi as D.W.2 who was the landlady of the room where the accused no.1 and deceased were staying till July, 2006. These witnesses were examined only for the purpose to prove that accused nos. 2 to 4 were not residing with accused no.1 and the deceased as joint family members. On appreciation of the evidence placed before it by both the parties, the trial Court convicted the accused no.1 for the offences punishable under Sections 498-A and 304-B of I.P.C. and sentenced to suffer R.I. for two years and to pay a fine of Rs. 10,000/- for the first 3 cr-apln-13-11 charge and R.I. for ten years and to pay a fine of Rs.25,000/- for the second charge. The State of Maharashtra is aggrieved by the acquittal of accused nos.2 to 4 and it does not press this application against accused no.1. 5 We have perused the evidence of P.W.1 as well as P.W.8 the Investigating Officer on one hand and the evidence of D.W.1 and D.W. 2 on the other hand. It is clear that the accused nos.2 and 3 were not residing with accused no.1 and the deceased as joint family members and it was only occasionally that either accused no.2 or accused no.3 stayed with them. It has also come in the evidence that accused no.3 used to come and stay with the accused no.1 as and when the deceased was out of station. It is also clear from the prosecution case itself that accused nos.2 and 3 were residents of Ekta Chawl behind Madhur-Milan Building, Room no.2 Damodar Park, Ghatkopar (W), whereas, the accused no.1 and the deceased were occupying room no.1 of Hanuman Society, Hanuman Nagar, Vikroli (W). At the same time, the residence of accused no.4 was 360/1/2, Tipu Sultan Chowk, Vikroli (W) and there is no dispute seriously about the accused nos. 2 to 4 residing away from the house of accused no.1 at the relevant time. The reasoning given by the trial Court under these circumstances, to acquit the accused nos. 2 to 4 cannot be held to be erroneous or contrary to the evidence on record. At the same 4 cr-apln-13-11 time, the prosecution could not prove that in the night of 25.10.2008 all accused nos.2 to 4 were present in the house of accused no.1 when the incident had taken place though it has been pointed out that on 25.10.2008 deceased Seema had returned from Indore and in her absence, accused no.3 was residing with accused no.1. 6 We are, therefore, satisfied that the reasoning set out by the trial Court on the basis of the evidence adduced by the prosecution in support of acquittal of accused nos. 2 to 4, does not call for any reconsideration. Hence, leave to appeal is refused and the application is rejected. [ U.D.SALVI, J.] [ B.H.MARLAPALLE,J.]