((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2087 OF 2008 IN CRIMINAL APPEAL NO. OF 2008 The State of Maharashtra Applicant versus Dasharath Sahebrao Jadhav and others Respondents Mrs.S.D.Shinde, APP for applicant. R.S.Kate, Adv. for respondents 1 to 4. CORAM : F.I.REBELLO AND A.A.KUMBHAKONI, JJ. DATE : 18th October 2008 PC : 1. This is an application filed by the State for leave to appeal against the judgement and order dated 20th December 2007 delivered by the Ad-hoc Additional Sessions Judge, 4th, Satara in Sessions Case No.104 of 2007 whereby four accused have been acquitted for the offences punishable under sections 302, 342, 328 r/w 34 of Indian Penal Code. 2. The case of the prosecution in nut shell as appears from the impugned judgement is as under. ((-2-)) 3. One Lahu was suffering from AIDS for few years. Tarabai (PW-6) was his sister and fourth accused Pushpa was his wife. After few years of the incident in issue, Lahu died. . The deceased/victim Hanumant was the son of Tarabai. Vijaya (PW-4) is the widow and Harshada (PW-5) is the daughter of the deceased/victim. 4. The fourth accused Pushpa had taken loan from a credit society of the village by pledging her ornaments. She had also taken loan of Rs.20,000/- from Tarabai. All this money was taken by her for treating Lahu, her husband who was suffering from AIDS.. At the request of Pushpa, the fourth accused Tarabai paid Rs.10,000/- to the credit society and got the ornaments of the fourth accused released, but kept the same with her. 5. On 2nd December 2006 at around 10.00 a.m. fourth accused along with her son came to the house of Tarabai and demanded ornaments. At that time Tarabai and the deceased Hanumant- her son insisted for payment of Rs.30,000/- for ((-3-)) releasing the ornaments as according to them Rs.20,000/- were due to them from her which was given as loan to her by them and Rs.10,000/- were due to them which amount was paid by them to the society for getting her ornaments released. The fourth accused and her son left the house without any arguments but empty hands. 6. On the same day at about 12.00 noon the deceased/victim Hanumant had gone to the flour mill of the first accused Dashrath - the brother of fourth accused. PW-5, the daughter of the deceased after coming back from the school informed Tarabai and others that the deceased was tied down to a poll at the flour mill and the first accused was holding a plastic bag containing poisonous substance. With the help of other accused he was putting the poison into the mouth of the deceased forcibly. After receiving such information, Tarabai and her daughter-in-law Vijaya went to the spot when the accused released the deceased. The Police was informed on phone about the incident when the police took the deceased to the Government Hospital. In the hospital the doctor examined him and declared ((-4-)) him dead. 7. Investigation was carried out by the police and the accused were charged with the offences under sections 302, 342, 382 r/w 34 of Indian Penal Code in CR No.143 of 2006. All the accused pleaded not guilty and claimed to be tried. Their defence is of total denial. 8. The prosecution put up three eye witnesses namely PW-4 Vijaya (widow of the deceased), PW-5 Harshada (daughter of the deceased) and PW-6 Tarabai (mother of the deceased). Other witnesses were also examined who are not relevant for us. 9. That the deceased Hanumant died due to consumption of poison had to be proved by the State. The doctor, examined as PW-2, who had conducted the post mortem of the dead body of the deceased-victim, stated that the deceased died due to unknown poison. However, it is very pertinent to note that the report of the chemical analyser did not show substance of any poison in the viscera of the deceased which was preserved and which was sent to the chemical analyser. Thus, the cause of death of the ((-5-)) deceased-victim itself is not established beyond reasonable doubt. 10. Though it is the case of the prosecution that the incident occurred at the place located at the centre of the village and though many villagers had gathered at the spot during the course of occurrence of the incident, not a single independent witness has been examined. All the three eye witnesses aforesaid are related to the deceased and admittedly there was a dispute between them and the accused over non-payment of Rs.30,000/-. 11. No marks of any nature were found on the body of the deceased though it is the case of the prosecution that he was forcibly tied to a poll and poison was administered to him by force. Though fourth accused and her son had been to the house of the deceased and Tarabai claiming ornaments and though the mother and son refused to hand them over to the fourth accused, admittedly, at that time, no untoward incident took place. Curiously, it is claimed that the incident occurred at the house of the accused and not at the house of the deceased when the deceased had gone to the house of the ((-6-)) accused. 12. Though injuries were found on the person of the accused the prosecution has failed to establish that these were occasioned on account of the incident, in which event alone, the injuries on the accused had to be explained. Recovery of alleged poisonous substance from the spot of incident was very doubtful as there were discrepancies about the same in the evidence of PW-1 and PW-5. It is also observed by the learned Sessions Judge and in our view correctly, that if really the accused had used the poisonous substance to poison the deceased, certainly they would have destroyed and/or removed the balance of it and would not have kept it at the spot of the incident for being recovered by Police subsequently. 13. The entire case of the prosecution that the deceased was tied to a pole and the accused putting poisonous substance forcibly in his mouth is not reliable and trustworthy. According to the prosecution, poisonous substance Thymate was used by the accused. The Sessions Judge has observed that Thymate is a hard substance and that a person cannot easily ((-7-)) chew the same if it is put in the mouth forcibly and further that the deceased would have certainly thrown it out of his mouth rather than consuming it. No stains of poisonous substance were found on the clothes of the deceased. Whereas, the clothes of the accused were even not seized. 14. The Investigating Officer has not tried to find out as to from where this poisonous substance was procured, by whom and no evidence in that regard at all was adduced. In any case, this poisonous substance was not found in the custody of the accused. 15. In view of these discrepancies in the evidence led by the prosecution, the learned Sessions Judge found that the entire case of the prosecution was doubtful. The defence also examined few witnesses. We may not refer to the same as we do not find it very relevant. The learned Sessions Judge has observed that the defence of the accused that the deceased might have committed suicide was a probable defence. In our view no fault can be found with the findings of fact recorded by the learned Sessions Judge and conclusions drawn on ((-8-)) that basis. 16. This is an appeal against acquittal. We have hold that it is not possible to take a view different from the view taken by the learned Judge. In view of the aforesaid aspects of the matter, we do not find any substance in this application and the same is, therefore, dismissed. (A.A.KUMBHAKONI, J.) (F.I.REBELLO, J.)