1 Cri.A.2324.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2324 OF 2010 The State of Maharashtra Through Police Station Officer, Police Station, Ashti, District Beed ...APPLICANT. VERSUS Mohan S/o Ganpat Wadekar, Age 51 years,R/o Kharadgavan, Tq.Ashti, District Beed. ...RESPONDENT. ... Smt.Y.M.Kshirsagar, APP for Applicant. Shri.N.L.Jadhav, Advocate for Respondent. ... CORAM: SHRIHARI P.DAVARE, J. DATE : 05TH APRIL, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicant-State (Original Complainant) seeking leave to file an appeal, challenging the Judgment and Order dated 18th February, 2010, rendered by the learned Sessions Judge, Beed, in Sessions Case 2 Cri.A.2324.10 No.57 of 2009, thereby acquitting the respondent- original accused for the offences punishable under sections 306 and 498-A of the Indian Penal Code. 3. According to the prosecution, marriage of deceased Mangal was performed with the accused about three years prior to the occurrence of the incident. This was second marriage of both of them. Accused was serving in Irrigation Department. It is alleged that, respondent- accused was illtreating victim Mangal, physically and mentally for non-fulfillment of unlawful demands. It is also alleged that, on 06th February, 2009, the deceased Mangal arrived at the house of complainant, and the complainant and his family members noticed weal marks on her person. On enquiry, she stated that the accused was due for promotion and for that purpose he demanded amount of Rs.1,00,000/-(Rupees One Lacs), from the victim. Hence, the complainant went to the house of accused on 07th February, 2009, and tried to persuade, convince and assured 3 Cri.A.2324.10 him that he would try to arrange for Rs. 50,000/- (Rupees Fifty Thousand). Thereafter, the incident took place on 19th February, 2009 at about 9.00 p.m.. When complainant received phone message from Police Constable from Ahmednagar that the deceased sustained burn injuries and she was admitted in Civil Hospital, Ahmednagar. Hence, the complainant rushed there and found that the deceased was in a position to talk, and she informed the complainant that due to illtreatment at the hands of accused and as he insisted for demand of Rs. 1,00,000/- (Rupees One Lacs), she committed suicide. Ultimately, she succumbed to the injuries on 20th February, 2009 at 4.00 a.m. The First Information Report (For Short “FIR”) came to be lodged on 11th March, 2009. 4. I have perused the impugned judgment and order dated 18th February, 2010 and also record and proceedings and considered the submissions advanced by the learned counsel for the parties. 4 Cri.A.2324.10 5. To substantiate the charges levelled against the accused, prosecution has examined in all six witnesses, namely, Ramdas Thorve(P.W.1), brother of deceased Mangal, Dwarkabai Thorve(P.W.2), mother of the deceased Mangal, Sunil Thorve(P.W. 3), brother of the victim -Mangal, ASI Mubarkh Pathan(P.W.4), who recorded the complaint of the complainant and registered an offence, Jalindhar Andhale(P.W.5), panch witness, who turned hostile, Prabakhar Bagal(P.W.6), Investigating Officer. 6. At the outset, although, the incident occurred on 19th February, 2009, the FIR came to be lodged after delay of about 20 days i.e on 11th March, 2009. The complainant-Ramdas(P.W.1) tried to explain the delay that due to illness of his mother, who sustained shock, because of the death of his sister, and there is delay in lodging FIR, as well as he said that after three days of the incident he visited the Police Station, but he was informed that papers were not received from Ahmednagar. He stated that, second time he visited 5 Cri.A.2324.10 Police Station, he was informed that examination was going on. He was disturbed due to the incident, and therefore, there was delay in lodging FIR till 11th March, 2009. The learned trial Court considered the said delay and explanation given therefor and concluded that the said delay is fatal to the case of the prosecution, and apparently; reasoning given by the trial Court cannot be faulted with. 7. Moreover, admittedly, it was second marriage of the accused and deceased Mangal. After considering the evidence, the learned trial Court observed that, the accused cannot be prosecuted under section 498-A of the Indian Penal Code, because he is not legally wedded husband or relative of the deceased since the prosecution failed to prove that there was divorce between the deceased Mangal and her first husband, and apparently, there is no flaw in the reasoning given therefor by the learned trial Court. 6 Cri.A.2324.10 8. As regards the incident, in the first week of February, 2009, 06th February, 2009 i.e. prior to the date of incident, on 19.02.2009, in respect of alleged demand of Rs.1,00,000/-(Rupees One lacs) by the accused from deceased Mangal for the purpose of his promotion, Ramdas(P.W.1) admitted that he did not make any enquiry in the office of the accused whether he was in the zone of consideration of promotion. The said aspect has been considered by the learned trial Court at length in the impugned Judgment, and the reasoning given therefor and conclusion drawn in that respect cannot be faulted with. 9. Besides that, the learned trial Court in its judgment considered the opinion given by Doctor on letter by Police (Exh.29), which discloses that victim was not fit to give oral statement at about 2.15 a.m., on 20.02.2009, when she was admitted in the hospital. Thereafter, she expired at 04.15 a.m. on the same day, and her dying declaration could not be recorded, and hence, there is no 7 Cri.A.2324.10 substance in the depositions of family members of the victim that she was able to talk and she stated before them that she committed suicide due to illtreatment by the accused. Apparently, there is no flaw in the observation and reasoning given by learned trial Court in that respect. 10. Moreover, as regards charges regarding sections 306 and 498-A of the Indian Penal Code, it appears that the learned trial Court considered the presumption under section 113A of the Indian Evidence Act as well under section 107 of the Indian Penal Code and also considered the case law and applied the ratio thereof to the facts of the present case and concluded that the accused is not found guilty for the charges levelled against him. Apparently, reasoning given therefor, cannot be faulted with. 11. In the circumstances, view adopted by the learned trial Court while acquitting the accused, is possible view after assessing and analyzing the 8 Cri.A.2324.10 evidence on record, and same cannot be construed as perverse, and hence, no interference therein, is warranted in the appellate jurisdiction. Therefore, present application seeking leave to file appeal bears no substance and same deserves to be rejected. 12. In the result, present application which is sans merits, stands dismissed and leave to file appeal is refused. 13. Record and Proceedings be sent back to the concerned Court. Sd/- [SHRIHARI P.DAVARE, J.] MTK