1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.: 4476 OF 2009 State of Maharashtra Through Assistant Police Inspector, Police Station, Paradh, Taluka: Bhokardan, Dist. Jalna. ... APPLICANT. Versus 1. Shivaji S/o Laxman Barote, Age: 32 years, 2. Sakhubai W/o Laxman Barote, Age: 60 years, Both R/o Selud, Taluka Bhokardan, Dist. Jalna. ... RESPONDENTS. *** Mr. Godbharle, A.P.P. for the Applicant/ State. Mr. Joydeep Chatterji, Advocate for Respondent Nos.1 and 2. WITH CRIMINAL REVISION APPLICATION NO.: 293 OF 2009 *** Damodhar S/o Shripatrao Sable, Age: 67 years, Occu.: Agri., R/o Grakheda, (Devi), Tq. Bhokardan, Dist. Jalna. ... PETITIONER Versus 2 1. The State of Maharashtra. Through Assistant Police Inspector, Police Station, Paradh, Tq. Bhokardan, District: Jalna. 2. Shivaji S/o Laxman Barote, Age: 32 years, Occu.: Agri., R/o Selud, Tq. Bhokardan, District Jalna. 3. Sakhubai W/o Laxmanrao Barote, Age: 60 years, Occu.: Household, R/o Selud, Tq. Bhokardan, Dist. Jalna. ... RESPONDENTS. ... Mr. P. M. Shinde, Advocate for the Petitioner. Mr. Godbharle, A.P.P. for the Respondent No.1/ State. Mr. Joydeep Chatterji, Advocate for Respondent Nos.2 and 3. *** CORAM: S. B. DESHMUKH & S. S. SHINDE, JJ. DATED:- 21St JUNE, 2010. ORAL ORDER: [Per Deshmukh, J.]: 1. We have heard learned A.P.P. Mr. Godbharle for the Applicant and Shri Joydeep Chatterji, Advocate for Respondent Nos.1 and 2 in Criminal Application NO.4476 of 2009 and Advocate Mr. P. M. Shinde for Revision Petitioner, Mr. Godbharle, learned A.P.P. for Respondent No.1/ State and Mr. Joydeep Chatterji, Advocate for Respondent and 2 and 3 in Criminal Revision Application [original 3 complainant]. 2. The Respondents had been charged for the offence punishable under section 498-A, 306 read with 34 of Indian Penal Code and section 3 and 4 of Dowry Prohibition Act, in Sessions Case No.77 of 2008. The learned Additional Sessions Judge No.1, Jalna, after hearing the parties and considering the material brought on record, on behalf of the prosecution, acquitted the Respondents for the offence punishable under section 498-A, 304/B, 306 read with 34 of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act. This judgment of acquittal is recorded by the learned Additional Sessions Judge, Jalna on 9th September, 2009. Against this order of acquittal, original complainant had filed Criminal Revision Application. This Criminal Revision Application appears to have been filed by the original complainant somewhere on 14th October, 2009. Criminal Revision Application was placed before learned Single Bench of this Court. Learned Single Bench heard learned counsel appearing for the parties and permitted circulation of the 4 Criminal Revision Application in case State will circulate Criminal Appeal, by the order passed on 18th January, 2010. That is how said criminal revision application filed by the original complainant is tagged with this criminal application and criminal appeal filed by the State. 3. Sungandha Barote (since deceased) indisputedly was wife of original accused No.1 and daughter in law of original accused No.2. The couple was married somewhere in the year 2000. According to the prosecution case, an amount of Rs.15,000/- in cash was the dowry paid by the parents of Sungandha along with gold ornaments valued at Rs.10,000/-. After the marriage Sungandha had resumed cohabitation with original accused No.1. Prosecution has further alleged that couple was blessed with two children. After a period of about one year Sungandha was being harassed on petty grounds. Sungandha used to pay visits to her parents house during the period of 4 to 6 months. According to the prosecution, she had disclosed harassment to her parents and family members. It was also 5 disclosed by Sungandha to her parents and family members that apart from other reasons for harassment, husband disliked her and wish to perform second marriage. Such desire was incited by original accused No.2. Accused No. 2 used to extend beating to deceased Sungandha. On her disclosure to her parents, they tried to alleviate the matter. She had resumed cohabitation with a hope that circumstances may change and her marriage would result in happiness. Prosecution has also alleged that despite attempts on the part of the parents of Sungandha, there was no improvement. In other words, harassment and cruelty continued to Sungandha even after birth of two children. Three years prior to the incident, Sungandha along with her husband had been to her parents place. That time also she disclosed that husband demanded Rs. 10,000/- for bore well in agricultural land. Arrangement was made. Amount Rs.10,000/- was paid. After one year, from this incident, accused No.1 again allegedly demanded Rs. 10,000/- to fulfill the requirement of deposit for seeking electricity supply for 6 installation of pump. Such deposit was required to be made with M.S.E.B. Parents, this time, could not satisfy the demand on account of their financial crisis. This was the ground for annoyance to accused No.1 which has resulted in severe harassment to Sungandha. According to prosecution, relatives of Sungandha tried to intervene and settle the dispute. Prosecution has further alleged that three months from the date of the incident. Sungandha had been to her parents to disclose fresh demand of accused No.1 of the amount of Rs.50,000/-. This time, it was demand for purchase of motorbike. This could not be fulfilled by the parents. She was required to resume cohabitation without fulfillment of demand of the accused No.1. On 18th February, 2008 Sungandha along with her husband had been to parents house for function of house warming. This time also disclosure was made by Sungandha to her parents about demand of Rs.50,000/- which remained unfulfilled. On this background, according to the prosecution, date of incident is 4th of March, 2008. Father of Sungandha received telephonic 7 message with Sungandha had consumed poison, was rushed to the Government Hospital, Buldhana. He himself rushed to the hospital to find Sungandha was unconscious. She was being treated, however, succumbed to poisonous substance and died on 6th March, 2008. After funeral, father of Sunganda lodged a report with Paradh Police Station. Thus, criminal law was set in motion, crime No.14 of 2008 was registered under section 498-A, 304/B, 306 read with 34 of Indian Penal Code and sections 3 and 4 of Dowry Prohibition Act. After completion of the investigation, charge sheet was filed in the Court of learned J.M.F.C. The case being triable by the Court of Sessions, the case was committed to the Court of Sessions. Learned Additional Sessions Judge, after framing charge against the accused person, tried them and recorded their acquittal which we have referred to in the forgoing paragraph of this judgment. 4. With the assistance of learned counsel for the parties, we have seen the judgment of the learned trial Court. On behalf of the prosecution, seven witnesses have been 8 examined. We have seen the evidence of P.W.4 Damodhar [father of deceased Sungandha] and P.W.5 Gajanan [brother of deceased Sungandha]. Apart from these two witnesses, Mr. Godbharle, learned A.P.P. also points out evidence of medical officer. We have seen the evidence of P.W.2 Mr. Baburao Barote. This witness turned volte-face. Request was made on behalf of State to declare him hostile. It was accepted. Cross questions were put by learned A.P.P. We have seen the omissions brought on record by the learned A.P.P. marked by letter “B”. This witness was also cross examined on behalf of the accused. In cross examination, he states that marriage of Sungandha had been performed on 14th April, 2000. 2-3 months prior to the incident, Sungandha had vomited blood and that is why she was taken to Dr. Sawdatkar. Diagnosis by the doctor was that she was suffering from tuberculosis disease. According to this witness, accused Nos.1 and 2 had accompanied Sungandha right from her admission. He also admitted that accused Nos. 1 and 2 were with Sungandha in the hospital till her death (i.e. after the incident). 9 What is important to note from his cross examination is that the married life of accused No.1 and deceased Sughandha was happy till death of Sungandha. 5. We have considered the evidence of P.W.4 Damodhar [father of deceased Sungandha] in its entirety. We have also considered evidence of P.W.5 Gajanan. In our view, evidence of P.W.4 Damodahr and P.W.5 Gajanan needs to be read along with evidence of P.W.2 so far as allegations against the present accused persons for the offence under section 498-A are concerned. The trial Court has justifiably noticed that on the second or third occasion, there was alleged demand of money from the accused No.1. Both the accused were tried to be convinced by P.W.4 with the assistance of relatives. Names have been brought on record i.e. Laxman Jawanjal and Baburao. These two witnesses have not been examined on behalf of the prosecution. In our view, evidence of three witnesses needs to be considered i.e. P.W.2 Baburao P.W.4 Damodhar and P.W.5 Gajanan in relation to charge of cruelty under section 498-A as well as section 10 3 and 4 of the Dowry Prohibition Act. In our view, the trial Judge has justifiably recorded the acquittal of the Respondents as regards offence under section 498-A of Indian Penal Code and sections 3 and 4 of Dowry Prohibition Act. 6. Respondents were also charged for the offence punishable under section 304-B of the Indian Penal Code i.e. Dowry death. Admittedly, the date of incident is 4th March, 2008. We have taken into account date of marriage also and finding recorded by the trial Court. In our view, trial Court has justifiably recorded acquittal for the offence under section 304-B. Learned A.P.P. has fairly pointed out finding of the trial Court on this point. 7. We have considered the material brought on record by the prosecution so far as offence under section 306 of Indian Penal Code is concerned. Learned A.P.P. strenuously urged that there is sufficient material on record. To substantiate his contention/ argument he took us to the evidence of P.W.3 Dr. Ravindra Rathod Exhibit-22. In para 2 of his evidence 11 he has stated before the Court that after opening the stomach of deceased Sungandha it was found that submucosal haemorrhage at places and contain about 100 M.L. reddish colour fluid with smell of unknown poison. According to him, Mucosa was congested and there was mild gaseous distension. He further testified that liver, spleen and pancreas were congested. Uterus was bulky and empty. He preserved viscera of small intestine and stomach with contents and pieces of liver, spleen and kidney. In para 4, he opined that probable cause of death, in the case, is “death due to unknown poison”. Viscera was forwarded to the Chemical Analyser. In cross examination, he admits that he was not able to disclose brand name of the poison which was found in the stomach at the time of postmortem examination on dead body. According to him, viscera was sent in his presence. He was also not able to state whether it was the case of suicidal death or poisoning. According to him, deceased was not suffering from any other disease. He denied the suggestion that deceased Sungandha was suffering from 12 tuberculosis disease and that was the cause of her death. We have also seen postmortem notes Exhibit-23 with the assistance of learned A.P.P. Mr. Godbharle. On behalf of prosecution, report of the Serologist have been placed on record. Two reports are important, one Exhibit-15 and another Exhibit-16. Report Exhibit-15 is a communication and/ or report of the Chemical Analyser. It is signed by Assistant Chemical Analyser to Government, Regional Forensic Science Laboratory, Aurangabad. It was addressed to Medical Officer, General Hospital Buldhana. It bears date 19th April, 2008. It appears that two sealed plastic bottles were received by the expert. He reports that viscera in plastic bottle NO.1 – stomach, small intestine with their contents and plastic bottle No.2 was containing viscera, pieces of liver, spleen and kidney. He reports that chemical testing of both these bottles or contents thereof does not reveal any poison. In other words, pieces of liver, spleen, kidney, stomach and small intestine does not reveal any poison. This piece of 13 document is important, giving blast virtually to the case of prosecution for the offence under section 306 IPC. Mr. Godbharle, learned A.P.P. points out another report Exhibit-16. It is also dated 19th April, 2008 by the same expert. Here, he had received one sealed parcel containing earth mixed with blackish granules wrapped in polythene. Expert has reported detection of Organo Phosphorous. Learned A.p.P. took us to the spot Panchanama. From the Spot Panchanama we have seen seizure of granules (thimate). This has been reported ultimately by the expert being organio phosphorous insecticide. In our view, existence of thimate in an agricultural family cannot be said to be adverse circumstances. It is the requirement for certain crops being raised by the farmer. We have noticed in the case on hand the manner in which and the place from which said thimate granules were seized under Panchanama. In our view, this is not a sufficient circumstance to say that Respondent Nos.1 and 2 are responsible for the offence punishable under section 306. In our view, the trial Court has justifiably recorded 14 acquittal for this offence under section 306 of IPC also. 8. All in all, while considering the appeal against acquittal under section 378 and 386 of the Criminal Procedure Code, we do not find any case for interference. [S. S. SHINDE, J.] [S.B.DESHMUKH, J.] Dated:15/06/2010. ans/4476 15 CRIMINAL NO.: OF 200 Date of decision: 21st JUNE, 2010. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. THE HONOURABLE SHRI JUSTICE S. S. SHINDE. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE