1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.214 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 Datta s/o Lala More, age 27 years, occu. Unemployed, r/o Shelgaon, Taluka Paranda, District Osmanabad. ... RESPONDENT. (Ori. Accused) ... Shri Shaikh, A.P.P. for appellant. Shri A.S. More, Advocate for Respondent. ... CORAM : S.B. DESHMUKH AND S.S. SHINDE, JJ. 23rd July, 2010. PER COURT: 1. This application is filed seeking leave to appeal under Section 378(1)(b) of Cr.P.C. Challenging the judgment and order of acquittal dated 7th September, 2009 passed by the learned Ad 2 hoc Additional Sessions Judge, Osmanabad in Sessions Case No.16 of 2007. 2 The Sessions Case No.8/2007 and 16/2007 were tried and heard together by the trial Court. In Sessions Case No.8/2007 there were five accused persons namely, (1) Lala Dagadu More, (2) Sham Lala More, (3) Shantabai Lala More, (4) Sangita Rajendra More and (5) Kavita Sham More. In Sessions Case No.16/2007, there was only one accused namely, Datta Lala More, who is respondent in the present criminal Application, seeking leave to appeal. 3. In these two sessions cases, in subsantace, the prosecution has alleged 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 Datta and offence punishable under Section 376 of 3 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. 4. On 23rd July, 2006, the complainant – mother of the deceased Rekha had 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 floor. Her small son namely Vijaysinha was 4 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 supplementary charge-sheet was filed against him. 5 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 of accused Datta. 5. We have noticed that Criminal Application No. 216 of 2010 was filed on behalf of the State seeking leave to appeal against acquittal of the five accused persons in Sessions Case No.8/2007. Indisputably, the said Criminal application was before this Court. The learned A.P.P. and the learned Counsel for the respondents – five accused were heard. This Court has rejected leave to appeal. In other words, acquittal of those five accused persons for the offence punishable under Section 498-A and 302 r.w. 34 of I.P.C. has been upheld and confirmed by this Court. 6 6. Mr. More, learned Counsel appearing for the respondent submitted that on the basis of the same set of evidence, acquittal of the five accused persons, tried along with the present respondent in separate Sessions Case No.8/2007 has been confirmed by this Court while rejecting the application of State seeking leave to appeal. He submits that based on the same set of evidence, application seeking leave to appeal against the acquittal of the present respondent cannot be granted. He prayed for rejection of the leave sought by the prosecution. 7. The learned A.P.P. Mr. Shaikh pointed out the material brought on record. He submitted that indisputably, it is not the case of the eye witness account. The prosecution relied on circumstantial evidence. According to him, after occurrence, for about six months the respondent Datta was absconding. He also points out the other material brought on record, non explanation of present respondent Datta. With the assistance 7 of the learned Counsel present before the Court, we have seen the record of the trial Court, the statement of the accused under Section 313 of Cr.P.C. Explanation of the adverse circumstances by the accused. We are convinced that enough material has been brought on record by the prosecution for grant of leave sought by the applicant State. We have seen the prayers in this criminal application. Composite prayers are made. In the prayer clauses amended prayer (A-1) seeks leave to file appeal under Section 378(1)(b). In prayer (D), it is prayed that this application be treated as appeal and action under Section 390 of Cr.P.C. be taken. We are inclined to grant leave to appeal. We are also inclined to consider prayer clauses (D) and (E) favourably. 8. Application is allowed in terms of prayer clause (A-1), (D) and (E) and disposed of. 8 We make it clear that leave to appeal is granted and the appeal filed by the present applicant is Admitted. Action under Section 390 of Cr.P.C. To follow. The learned Sessions Judge, Osmanabad shall release the respondent Datta Lala More on his furnishing P.R. Bond of Rs.15,000/- with one surety in the like amount. He shall secure presence of respondent Datta once in a quarter. Such quarter shall commence from 1st August, 2010. After registration of appeal, appeal be proceeded further. [ S.S. SHINDE ] [ S.B. DESHMUKH ] JUDGE JUDGE Kadam/*