Crim. Appln. APPA No.356 of 2011 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (APPA) NO.356 OF 2011. IN CRIMINAL APPEAL NO. OF 2011. APPELLANT : State of Maharashtra through Police Station Officer, Amgaon. -VERSUS- RESPONDENTS: 1 Yogesh S/o Ramesh Shende, aged about 30 years, 2 Ramesh S/o Harichand Shende, aged about 55 years, 3 Kuntabai W/o Ramesh Shende, aged about 50 years, 4 Ku. Priya d/o Ramesh Shende, aged about 24 years, 5 Ku. Nisha d/o Ramesh Shende, aged about 22 years, 6 Taresh S/o Ramesh Shende, aged about 28 years, 7 Nitesh S/o Ramesh Shende, aged about 26 years, All residents of Amgaon, Tah. Amgaon, Distt. Gondia. Smt. B. P. Maldhure, APP for appellant – State. Shri R. B. Gaikwad Advocate for respondent nos.1 to 7. CORAM: P.V. HARDAS AND S.B. DESHMUKH, JJ. DATED: 7th SEPTEMBER 2011. ORAL ORDER : (Per S. B. DESHMUKH J) 1. Heard learned APP for the applicant State & learned Advocate for the respondents. 2. The respondents (hereinafter referred to as the Crim. Appln. APPA No.356 of 2011 2 accused for the sake convenience) were tried for the offence punishable under Section 498-A and 304-B of the Indian Penal Code. On their trial, the learned Trial Judge, Gondia, acquitted the accused persons of the offences punishable under Section 498- A and 304-B of the Indian Penal Code. It is this Judgment and order of acquittal of the accused persons is questioned in this criminal application filed under Section 378(3) of the Criminal Procedure Code on behalf of the applicant State. 3. This application was before this Court on 10-06-2011 and leave was granted in favour of the applicant to place on record postmortem notes, inquest panchanama, spot panchanama and other 11 documents with the criminal appeal. The amendment was also permitted. By the order passed on 29-6-2011, record and proceedings was called for and is thus available for our perusal. 4. The facts in brief are that one Mr. Bhagwat Deshmukh who is father of the deceased Rajni had lodged a report with Amgaon Police Station on 8-9-2008. According to this report, his daughter Rajani was married with Yogesh (Accused NO.1) on February 25th 2008. Deceased Rajani died on 8-9-2008. There was a demand of dowry amount by the accused and on that count, there was physical and mental ill-treatment to Rajani. Based on this report Exh.127, criminal law was sent in motion. The investigation was completed by the Police Officer and chargesheet was submitted against the accused persons for the offence punishable under Section 498-A and 304-B of the Indian Penal Code. The case was committed to the Court of Sessions,as the offence punishable under Section 304-B of the I.P.C. being triable by the Court of Sessions. The charge was accordingly Crim. Appln. APPA No.356 of 2011 3 framed under Section 498-A and 304-B of the Indian Penal Code, which was explained to the accused persons. The accused denied the charge and claimed to be tried. On trial, the accused persons have been acquitted as we have mentioned in foregoing paragraphs. 5. On behalf of the prosecution, 9 witnesses have been examined. Learned APP invited out attention to the evidence of PW-4 Khelanbai Shahare, P.W. No.1 Khelanbai (mother of deceased) PW-3 Bhagwat Deshmukh (father of deceased) the complainant, PW-5 Dolly (friend of deceased), PW-6 Vithabai Dhakhane (accused's relative) and PW-8 Priyanka Gajbhiye (friend of deceased). Deceased Rajani was subjected to cruelty on account of demand of dowry of Rs.2,00,000/- and non fulfillment thereof by the accused in substance is the case of prosecution. 6. With the assistance of the learned APP, we have perused the evidence of PW-3 Bhagwat (father of the deceased Rajani). It is stated by PW-3 Bhagwat that his son purchased the plot by obtaining loan somewhere in the month of May 2008. Incidentally, in the month of May 2008 PW-3 Bhagwat along with his wife had been to the house of the accused. Deceased Rajani told him that the accused had received the knowledge of purchase of plot by son of PW-3 Bhagwat and were nervous for their inability to purchase the plot. She also disclosed to his wife and son who visited the Rajani's house at the time of Akhadi that Rajani was subjected to cruelty as son of PW-3 Bhagwat could purchase the plot. According to the prosecution, the evidence of PW-3 is significant on the point of alleged ill-treatment extended by the accused, which was reduced into writing, in a Crim. Appln. APPA No.356 of 2011 4 register maintained by the deceased Rajani. He claims to have seen such register of deceased Rajani in para 2 of his substantive evidence Exh.126. For the Rakhi festival of that year, deceased Rajani was sent to the house of PW-3 and she was also brought to maiden home at the time of Pola. She was further brought to his house at Gondia by Vithabai PW-6 and Khelanbai Shahare PW-4 at the time of Pola. At that time also his daughter deceased Rajani disclosed the demand of Rs.2,00,000/- by the accused. On 3-9-2008, on the occasion of Ganeshchaturthi, PW-3 Bhagwat received a telephone call from deceased Rajani that she was being ill-treated and the amount of Rs.2,00,000/- of dowry was demanded. This phone call according to him was disconnected and at that time she was weeping. On September 8th 2008, he received another phone call from one Ramesh Shende i.e. the accused no.2 that condition of his daughter Rajani is not well and he should rush immediately with his wife. He also received an information that his daughter was murdered and set on fire. Along with his relatives, he claims to have visited village Amgaon and noticed that deceased Rajani was strangulated and burnt that is how he lodged the report Exh.127. The omissions in the First Information Report Exh.127 have been brought on record. We have noticed that these omissions are material. One of the omissions pertains to the loan allegedly taken by the accused of Rs.5,00,000/- and their demand of Rs.2,00,000/- to deceased Rajani towards dowry. Another omission that he noticed on visit of accused's house that his daughter Rajani was strangulated and burnt. He also omitted that he received the message on the eve of Ganeshchaturthi at 5p.m. In relation to register, he states in the cross examination that he does not remember whether he said Crim. Appln. APPA No.356 of 2011 5 to the police that there was a talk between him and his daughter about register. It is admitted by the PW-1 that his elder son has not visited the house of the accused on the day of Rakhi. The suggestion that there was no demand of money from the accused and there was no ill-treatment is denied by him. The important aspect of the evidence of this witness is the omission on the material point and non production of register allegedly maintained by deceased Rajani regarding ill-treatment to her by this witness to the investigating agency during the course of investigation and or trial of the case. In other word, the said register is not a part of the record. 7. We have been taken to the evidence of PW-4 Khelanbai. According to PW-4 Khelanbai Shahare, at the time of Nagpanchami, accused no.2 Ramesh and his wife came with register at the house of PW-6 Vithabai and thereafter, they came to her house. Accused no.2 Ramesh read over the register, written by Rajani regarding ill-treatment at the hands of the accused. She further states in her evidence that she along with PW-6 Vithabai visited the house of the deceased Rajani. In cross examination, this witness admits that PW-3 Bhagwat is her relative. When she visited the house of the accused, she further admits that police were present. She admitted that there is no reference of register when her statement under Section 164 of Criminal Procedure Code was recorded. There is an important omission brought on record on behalf of the accused in relation to the alleged disclosure of Rajani for demand of money and ill-treatment by the accused. She also admits that her previous statement recorded by the J.M.F.C. under Section 164 of Criminal Procedure Code is also silent on this point. The evidence of this witness PW-4 in our opinion Crim. Appln. APPA No.356 of 2011 6 does not support the case of the prosecution for the charge under Section 498-A and 304-B of the Indian Penal Code. It seems from the evidence of PW-6 Vithabai that deceased was treated nicely for about 1 ½ months and thereafter, the accused discontinued the service of maid. This witness makes a reference of visit of father in law and mother in law of the deceased to her house at the time of Nagpanchami and disclosing maintenance of Note book or register by the deceased. Visit of deceased Rajani's mother to the house of this witness is referred to by this witness. What is told by the mother of deceased Rajani to this witness cannot be said to be direct evidence by deceased Rajani to this witness. The alleged demand of Rs.2,00,000/- to deceased Rajani by accused seems to have been narrated by the mother of deceased to this witness. Regarding visit of this witness and PW-4 Khelanbai Shahare at the time of Pola, this witness only says that both of them had been at the house of the accused and brought Rajani. This witness does not make reference to any disclosure made by Rajani regarding demand of money and ill- treatment. 8. We have considered the evidence of PW-1 Khelanbai Deshmukh (mother of deceased Rajani). It seems from the evidence of PW-1 Khelanbai Deshmukh (mother of deceased Rajani) that she along with her son had visited the house of the accused and brought her daughter to their house. We have noticed discrepancies in the evidence of PW-3 Bhagwat and this witness. We have noticed omissions in the evidence of this witness. The learned Trial Judge has justifiably collated the evidence of this witness with evidence of other witnesses. Crim. Appln. APPA No.356 of 2011 7 9. Our attention was also invited to the evidence of PW- 5 Dolly by learned APP. This witness claims to be the friend of deceased Rajani. This witness met deceased Rajani who was weeping on the eve of Gurupornima. Deceased Rajani disclosed to this witness that within one month of her marriage, maid was discontinued by the accused. There was cooking Gas available in the house of the deceased Rajani which was used by the accused before her marriage, however, she was not permitted to use cooking gas subsequently. This witness, however, makes a statement that Rajani disclosed to her that the accused demanded Rs.2,00,000/- for the purpose of service. This witness further says that one Priyanka disclosed that the accused are giving ill- treatment on account of money. It is important to note that this witness does claim that the disclosure of ill-treatment on account of money was made to her by third person i.e. one Priyanka. This witness did claim that the deceased Rajani told her that the accused demanded Rs.2,00,000/- for the purpose. However, in the cross examination, this omission has been brought on record and proved. Thus, the demand of Rs.2,00,000/- is an improvement made by this witness claiming to be the friend of deceased Rajani. The evidence of this witness is also of no assistance to the prosecution in support of their contention for the purposes of offence punishable under Section 498-A and 304-B of the Indian Penal Code. 10. With the assistance of the learned APP, we have considered the evidence of PW-4 Khelanbai Shahare, PW-8 Priyanka friend of deceased Rajani and PW-9 Kishor Supare. The postmortem notes have been placed on record. This document seems to have been admitted by the appellant – accused and, therefore, the Crim. Appln. APPA No.356 of 2011 8 Medical Officer was not examined on behalf of the prosecution. This document is at Exh,138. The cause of death mentioned in the postmortem report Exh.138 is “death caused due to burns”. It appears that the deceased had sustained 100% burns. The evidence of PW-8 Priyanka says that there was a telephonic talk amongst herself and deceased Rajani 15 days of Vatsavitri festival and that time deceased had disclosed her that the members of her family had demanded Rs.2,00,000/-. Her statement was, however, recorded after 2 months after the date of incident which she has fairly conceded in cross examination. This witness PW-8 Priyanka is also considered by us. The suggestion has been denied by this witness that there was no telephonic conversation with deceased Rajani. There is no satisfactory explanation for delay in recording the statement. 11. We have given anxious consideration to the submissions of the learned APP. In our opinion, the learned Trial Judge has properly considered the material brought on record and took possible view by recording acquittal in favour of of the accused. There is no case of conversion of acquittal into conviction. We are, therefore, inclined to dismiss the application and refuse leave. 12. Criminal Application is accordingly dismissed. Leave refused. JUDGE JUDGE //MULEY// Crim. Appln. APPA No.356 of 2011 9