1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.216 OF 2010. The State of Maharashtra through Sou. A.K. Autade, age 45 years, occu. Agriculture, R/o Shelgaon, tq Paranda, Dist. Osmanabad ... APPELLANT. (Ori. Complainant) vs 1 Lala Dadadu More, age 55 years, occu. Agriculture, Shelgaon tq paranda dist osmanabad 2 Sham Lala More, age 28 years, occu. Agriculture, Shelgaon, tal Paranda, Osmanabad, 3 Shantabai Lala More, age 50 years, occu. Household, Shelgaon, tal Paranda, Osmanabad. 4 Sangita Rajendra More, Age 30 years, occu. Household, Shelgaon, tal paranda, osmanabad. 5 Kavita Sham More Age 24 years, occu. Household, Shelgaon, tal Paranda, Osmanabad. ... RESPONDENTS. (Ori. Accused) ... Shri V.D. Godbharle, A.P.P. for appellant. Shri A.S. More, Advocate for Respondents 1 to 5. ... 2 CORAM : S.B. DESHMUKH AND S.S. SHINDE, JJ. RESERVED ON: 24th June, 2010. PRONOUNCED ON: 28th June, 2010. PER COURT: 1. This application is filed seeking leave to appeal under Section 378(1) & (3) of Cr.P.C. Challenging the judgment and order of acquittal dated 7th September, 2009 passed by the learned Ad hoc Additional Sessions Judge, Osmanabad in Sessions Case No.8 of 2007. This Court, by order dated 7th April, 2010 directed to call for the record and proceedings of the case from the concerned Court and accordingly, the record and proceedings are made available for perusal. 2. The prosecution case is that the deceased Rekha was having love affair with accused Datta More before two and half years of the incident and Rekha became pregnant from the accused Datta. The accused Datta refused to marry with deceased Rekha. Thereafter, complaint was lodged against 3 Datta and offence punishable under Section 376 of I.P.C. and Crime No.2/2005 was registered against accused Datta. During pendency of Sessions Case against the accused Datta, he told the complainant Adikabai that he would marry with Rekha and maintain her. On 30th September, 2005, accused Datta performed registered marriage with Rekha before the Sub Registrar, Osmanabad. After marriage, accused Datta had taken Rekha to Shelgaon but, his family members did not allow him and Rekha to reside in their house and, therefore, accused Datta along with Rekha started residing in the Wada of Vasant Tawate. 3. On 23rd July, 2006, the complainant – mother of the deceased Rekhahad been to her agricultural field for work. In the evening she returned to her house. Mr. Bhasker More and Kaka More came to her house and told her that her grandson i.e. son of the deceased Rekha was crying in the house of deceased Rekha. The complainant went to the house of Rekha. In her house, Rekha was lying on the 4 floor. Her small son namely Vijaysinha was sucking her breast. The complainant lifted the son of Rekha and tried to wake up Rekha. However, she found that Rekha was dead. Complainant returned back to her house and disclosed the incident to her husband and other family members. The Police Patil of the village informed the concerned Police station and accordingly, Accidental Death was registered. Post-mortem was performed. On 3rd August, 2006, the complainant – mother of the deceased Rekha lodged report in the Police Station alleging that all the accused persons were ill-treating the deceased and all of them caused death of deceased. Crime No.31 of 2006 was registered against all the accused. Parents of Datta, his brother and sisters were arrested. Husband Datta More was absconding from the date of the incident. Charge-sheet was filed vide Sessions Case No.8 of 2006. However, in the said charge-sheet, Datta was shown as absconding accused. The accused Datta, husband of the deceased was arrested after six months and then 5 supplementary charge-sheet was filed against him. The case was committed for trial. The prosecution examined in all nine witnesses. After recording the evidence and hearing the parties, the Ad hoc Additional Sessions Judge, Osmanabad acquitted all the accused including accused Datta, husband of the deceased. Hence, this application seeking leave to appeal against the said judgment and order of acquittal. 4. In this application, the main accused Datta is not the respondent. The respondents No.1 to 5 are relatives of accused Datta. The State has filed separate application seeking leave to appeal against the same judgment in respect of main accused Datta. 5. We have heard learned A.P.P. for the State and also the Counsel for the respondents. We are conscious of the fact that we are hearing the application seeking leave to appeal against the judgment and order of acquittal. The learned 6 A.P.P. invited our attention to the judgment of the trial Court as well as the evidence brought on record by the prosecution and contended that the trial Court has not properly appreciated the evidence brought on record. The learned A.P.P. invited our attention to the evidence of the prosecution witnesses to contend that before the incident in question, there was harassment to the deceased Rekha by the respondents for demand of dowry. The A.P.P. further submitted that since the respondents were not agreeable for the marriage between Datta and Rekha, the respondents along with Datta assaulted the deceased and as a result of the assault by them, the deceased died. The A.P.P. invited our attention to the evidence of the complainant, brother of the deceased Rekha and also other witnesses. 6. The learned Counsel for the respondents submitted that there is no evidence against the respondents which is brought on record by the prosecution about the ill-treatment allegedly 7 given to the deceased. He further submitted that since the date of marriage, deceased Rekha and her husband Datta were staying separately and, therefore, there is no question of any ill- treatment on behalf of the respondents. According to the learned Counsel for the respondents, the respondents are no way connected with the alleged offence and they are rightly acquitted by the trial Court after appreciation of the entire evidence brought on record by the prosecution. Therefore, the learned Counsel for respondents would contend that the application is devoid of any merits and the same deserves to be rejected. 7. We have heard the learned Counsel for the parties at length. We have also perused the entire evidence made available for our perusal. We have also seen the statements of the witnesses in the examination-in-chief and also perused the cross-examination. We have also seen other evidence which is available on record and we are of the considered view that the trial Court has 8 taken reasonable and possible view on the strength of the evidence brought on record by the prosecution. 8. On careful perusal of the evidence of the complainant P.W.2 Adikabai Kisan Autade and more particularly, cross-examination, it clearly appears that the respondents were not on visiting term with Datta or deceased Rekha. It has also come on record that the complainant never visited house of Datta and deceased Rekha. The trial Court has recorded the finding that when there was no occasion either for Rekha or the complainant to visit each other or to go to the houses of each other, there is no question of any narration by the deceased Rekha to the complainant about the ill-treatment given by the respondents to the deceased. The complainant – mother of the deceased, in her cross-examination, has further admitted the fact the deceased Rekha and Datta were residing separately from the other family members i.e. respondents since the date of 9 marriage. This fact has also come in the evidence of almost all the witnesses examined on behalf of the prosecution. Therefore, the trial Court has recorded the finding that from the date of marriage the couple was residing separately in the Wada of Vasant Tawate in Shelgaon. It is also admitted by the complainant in her cross- examination that Rekha was having love affair with Datta More and accused Datta was having love affairs with Rekha and their love affair was going on for last four to five years. It is admitted by the complainant in her cross- examination that Rekha became pregnant and delivered male child. She further admitted that accused Datta had partitioned his land from his parents and he transferred 1 acre land in the name of his son and name of Rekha was recorded as a guardian of the minor. She has further admitted that their marriage was registered at Osmanabad. The complainant has admitted in her cross- examination that she had not gone to the house of Rekha as well as Rekha also did not come to her 10 house. The trial Court has recorded the finding that if the deceased Rekha and the complainant mother were not on visiting terms, there is no question of any narration by Rekha about the ill- treatment given by the respondents to deceased Rekha. 9. If the evidence of relatives including brother of the deceased Rekha is perused, it appears that all the witnesses have categorically admitted in their evidence that the couple was residing separately since their marriage and was not staying with the respondents. It has also come in the evidence of the complainant that there was partition between the parents and Datta. It is also relevant to mention that the incident took place on 23rd June, 2006 and the complaint was lodged on 3rd August, 2006 i.e. ten days after the murder of Rekha. The trial Court has observed that the prosecution has not explained the delay in lodging the complaint. 11 P.W.3 Suryakant Kisan Autade, brother of the deceased Rekha, in his cross-examination has admitted that Rekha and accused Datta were having love affair and they had performed registered marriage. He has admitted in his cross- examination that Rekha married with Datta by registered method and they were residing in the house of Sanjay Tawate. 10. Another witness P.W.4 Rajendra Dagadu Kshirsagar has also admitted in his evidence that there was love affair between Datta and deceased Rekha, they did perform registered marriage at Osmanabad and started residing in the house of one Tawate. It has also come in the evidence of the said witness that accused Datta had transferred his land in the name of son of Rekha and since marriage of Rekha with accused Datta, they used to reside in the house of Tawate. 11. We have also perused the evidence of P.W.6 Sanjay Vasant Tawate, in whose house the couple 12 was residing since their marriage. In his evidence, he has admitted that he is resident of Shelgaon and his father had given one room to Datta and his wife for residence. Therefore, on careful perusal of the evidence of all the witnesses, it appears that they have categorically stated that the marriage between Datta and deceased Rekha was a registered marriage and they were residing separately at different place from the place and house of the respondents. It has also come in the evidence of the prosecution witnesses that there was partition between the respondents parents and Datta, husband of the deceased Rekha. The evidence brought on record by the prosecution is very short to connect the respondents with the incident in question. There is also inordinate delay in lodging the complaint by the complainant and prosecution has not explained the same. 12. Taking overall view of the matter and taking into consideration the evidence brought on record 13 by the prosecution and findings recorded by the trial Court, we are not convinced to grant leave to appeal against the judgment and order of acquittal of the respondents passed by the trial Court. In our opinion, the trial Court has taken a possible view and we do not find any infirmity in the judgment and order of the trial Court qua the present respondents. 13 In the result, we refuse to grant leave to appeal against the judgment and order of acquittal as regards the present respondents. Criminal Application is, therefore, rejected. [ S.S. SHINDE ] [ S.B. DESHMUKH ] JUDGE JUDGE Kadam/*