1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5845 OF 2009 (For Leave to Appeal) IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra .. Applicant Vs Mahadeo Narayan Korke and Another .. Respondents Mr. V.B. Konde-Deshmukh for the applicant CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ DATE : 17th JUNE, 2010 P.C. [PER SMT. V.K. TAHILRAMANI, J]: 1. The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 31.08.2009 passed by the learned Additional Sessions Judge, Pandharpur in Sessions Case No. 54 of 2007. By the said judgment and order, the respondents i.e original accused no. 1 - Mahadeo Narayan Korke and original accused no. 2 - Shantabai Narayan Korke came to be acquitted of the offence under sections 498-A, 306 and 302 r/w section 34 of the I.P.C. 2. The prosecution case briefly stated is that accused no. appln5845-09 2 1 Mahadeo is the son of accused no. 2 Shantabai. They were residing at Sugav Bhose. Accused no. 1 Mahadeo was married to Sapana (deceased) in the year 1997. They had two children from the said marriage. The elder child was PW3 Pooja and younger child was a son Prasad. The prosecution case is that both the accused persons were ill treating Sapna and caused her death on 25.01.2007 at about 02.00 p.m. They committed murder of Sapna by forcibly administering poisonous substance to her. PW4 Uma Kadam who is the mother of deceased Sapna filed F.I.R. on 25.01.2007 alleging that her daughter was subjected to ill treatment and cruelty by her husband and mother in law and hence, she committed suicide by consuming some poisonous substance. However, thereafter, on inquiry with the children of the deceased, it transpired that poisonous substance was forcibly administered to Sapna which had caused her death. Hence, section 302 was also added. 3. We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge. We have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Sessions Judge does not call for appln5845-09 3 any interference. 4. In order to prove its case, the prosecution has relied on the evidence of daughter of the deceased and accused no. 1 Mahadeo i.e PW3 Pooja. Pooja was aged about 9 years at the time of incident. Admittedly, her evidence shows that accused no.1 Mahadeo was not in the house at the time of incident. In fact, her evidence shows that on the date of the incident, her father i.e accused no. 1 had gone out of station. The evidence of Pooja is totally silent regarding any ill-treatment or harassment to Sapna by any of the accused. Thus, as far as section 498A or 306 is concerned, we do not find any cogent or reliable evidence on record against any of these accused. As far as section 302 is concerned, the evidence unequivocally points out to the fact that Mahadeo was not at home at the relevant time, thus, there is no evidence to connect him with the incident. 5. As far as respondent no. 2 - Shantabai is concerned, Pooja has stated that on the date of the incident, she and her brother came back from school. Her mother gave them their lunch and went to the bedroom to sleep. Thereafter, accused no. 2 Shantabai entered the bedroom where their mother was sleeping. She bolted the door of the bedroom from inside. PW4 Pooja heard some noise from the bedroom, hence, appln5845-09 4 she and Prasad tried to open the door of the bedroom but they could not open the door because it was bolted from inside, hence, they brought one stool and placed the same near the door and climbed on it. After climbing on the stool, they peeped from the ventilator over the bedroom door and they saw that accused no. 2 Shantabai was sitting on the chest of their mother and was administering some medicine to their mother. As their mother was not drinking the same, Shantabai gave fist blow to her and administered the medicine. According to Pooja, the medicine was an insecticide. 6. On going through the evidence of PW3 Pooja, we find that her evidence is not reliable. It is also pertinent to note that the statement of Pooja was recorded two and half months after the incident. Assuming for the sake of argument that child witness PW3 Pooja witnessed the incident in question, according to her, immediately, thereafter, accused no. 2 Shantabai came out of the bedroom and went away to the sugarcane field. At that time, Pooja could have rushed to the house of her relatives and sought their help by disclosing about the incident. However, she did not do so. Even after she met her father on that very day, then also, she did not inform anything to her father. It is unnatural that she did not disclose the incident to her father. Normally,a child would feel safe in the company of his / her appln5845-09 5 own parent/s. Even if they are under fear, they will certainly disclose about such incident to their parent/s. Particularly, when the incident relates to an act of causing death of her mother, she would immediately disclose this fact to her father as soon as she met him. The fact that she has not done so is very strange and unnatural. This makes her evidence shaky as the only inference which can be drawn is that the statement has been made by her after some days only on account of tutoring by her maternal grandmother. 7. Another aspect which raises serious doubt in the mind about the prosecution case is that PW4 Uma who is the maternal grandmother of Pooja has not immediately approached the Police Station after disclosure by Pooja to her nor were the statements of Pooja and Prasad recorded immediately after such disclosure. The complaint of PW4 Uma - mother of Sapna came to be recorded on 25.01.2007. Thereafter, her supplementary statement came to be recorded on 27.01.2007. Both these statements did not mention the fact that child witness Pooja or Prasad had witnessed the incident. It is the prosecution case that four days after the incident, Pooja had disclosed this fact to her maternal grandmother and only thereafter, the statement of child witness Pooja and Prasad came to be recorded. The supplementary statement of Uma recorded on 05.04.2007 states this fact and she has appln5845-09 6 produced child witness Pooja and Prasad before the Police on 05.04.2007 for recording their statements. The incident has occurred on 25.01.2007. Thereafter, the children were with their maternal grandmother till their statements came to be recorded after nearly 2 1/2 months. From this time gap of nearly more than 2 1/2 months in recording the statement of Pooja and Prasad, it is apparent that during the said period, the child witnesses have been tutored by the complainant who is their maternal grandmother. 8. One very important factor in this case is that the map of the scene of offence does not show the existence of any ventilator above the door of the room where the incident occurred. It is the specific case of the prosecution that Pooja had peeped through the ventilator above the door and she saw accused no. 2 Shantabai sitting on the chest of her mother Sapna and administering poisonous substance to Sapna. However, the map (Ex. 43) nowhere shows the presence of any ventilator. This fact also shakes the very foundation of the prosecution case. 9. As the prosecution case is mainly based on the evidence of Pooja, for the reasons stated above, we do not find it worthy of any reliance. appln5845-09 7 10. Looking to the evidence on record, the view taken by the learned Sessions Judge is a reasonable and possible view. 11. The plenitude of power available to the Court hearing an appeal against acquittal is th e same as that available to a court hearing an appeal against an order of conviction, but, however, the court hearing an appeal against acquittal, will not interfere solely because a different possible view may arise on the evidence. The Supreme Court in the case of C. Anthony Vs. K.G. Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. We have already observed that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, we are not inclined to interfere in the judgment and order of acquittal. In view of the above, leave to file appeal, is refused. Application is rejected. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] appln5845-09 8 appln5845-09