1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. CRIMINAL APPLICATION NO.: 1668 OF 2010 *** State of Maharashtra Versus Sahebrao Narasu Waje and others *** 1. We haved heard learned A.P.P. Mr. Godbharle for the Applicant/ State and learned counsel Mr. D. R. Markad for Respondent Nos.1 and 2. 2. The Respondents, in this Criminal Application, were original accused Nos.1 and 2 in Sessions Case No.3 of 2009. They were charged and tried for the offence punishable under section 498-A and 307 of Indian Penal Code. The trial Court, after considering the evidence on record, acquitted both the respondents for the offence punishable under section 307 and 498-A of Indian Penal Code by the judgment and order of acquittal dated 29th December, 2009. It is this acquittal, which is sought to be challenged by filing present Criminal application seeking leave to 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. appeal. 3. There is no dispute amongst the parties that Respondent No.1 and complainant Swati were married on 23rd April, 2008. Their marriage had been solemnised at Parner, Taluka Parner, district Ahmednagar. Father of complainant Swati, at the relevant time, was residing at Mumbai. The Respondent Nos.1 and 2 are resident of Wajewadi, Taluka Parner, district Ahmednagar. After marriage of Respondent No.1 with complainant Swati on 234d April, 2008, Swati had resumed cohabitation. She was residing with Respondents. In the family of Respondents, apart from the Respondents, father of Respondent No.1 Nasru, brother Vijay and other members were residing. Two brothers of Narsu i.e. father in law of complainant Swati were residing in neighbourhood, however, in separate rooms or tenements. After the marriage, complainant Swati resumed 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. cohabitation. She was taken by her parents for some time, may be around 4-5 days, according to her evidence. She further claims that thereafter she was reached at her matrimonial house at Wajewadi. She stayed for the period of one week with Respondents. Thereafter, she had gone to her parents as per customs. On or about 1st of June, 2008, indisputably, complainant Swati was not at her matrimonial home. According to her, Respondent No.1/ her husband, had been for taking her to matrimonial house. That time, complainant Swati had desire to stay at her maternal/ uncle's place. She accordingly requested Respondent No.1. However, Respondent No.1 refused. He insisted her to accompany him. He had gone there to fetch her on motorbike. Ultimately, on 1st of June, 2008, may be against the will of complainant Swati, she was required to accompany Respondent No.1. Both of them had 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. come to Wajewadi at matrimonial home of complainant Swati. 4. The day of occurrence is 2nd June, 2008. According to complainant Swati at about 03.00 p.m. she alone was in house with accused No.2 her mother in law. Her mother in law Respondent no.2 pushed and pulled her on ground, held both her hands. Accused No.1 poured poisonous substance (Organo phosphorous poison) in her mouth. In short, complainant implicates both the respondents in forcible administration of poisonous substance to her at around 03.00 p.m. on 2nd June, 2008. She further claims that her father in law came at the house. He rushed her to hospital of Dr. Zaware at Nighoj at about 04.30 p.m. She was got admitted in the hospital. She was examined and medical treatment was started by Dr. Zaware. She was indoor patient from 2nd June, 2008 i.e. from 04.30 p.m. till 8th June, 2008. She was 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. discharged on 9th of June, 2008. Her statement was recorded in the hospital on 8th of June, 2008. It has been established in the evidence of P.W.1 Swati (Exhibit 15). It was treated as first information report. Offence punishable under section 307 and 498- A read with 34 of Indian Penal Code was registered. Investigation was started. It was completed and charge sheet was filed. 5. Trial Court, on receipt of charge sheet, framed charge against the Respondents for the offence punishable under sections 307, 498-A read with 34 of Indian Penal Code. We have seen the charge framed, which is available in the Court and proceeding. Both the accused denied the charge. Therefore, they were tried. To establish the case, on behalf of prosecution, six witnesses were examined. Documentary evidence by way of seizure Panchanama, report of Chemical Analyser have been placed on record. 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 6. With the assistance of learned counsel appearing for the parties, we have seen the material brought on record. We have considered the evidence of P.W.1 Swati, her father Vishwanath Namdeo Auti - P.W.3 Exhibit-20, evidence of P.W.4 Dagadu Baban Bodage, a Panch witness for discovery Panchanama, who did not support and was cross examined with the permission of the Court. We have also considered the evidence of P.W.5 Raosaheb Namdeo Kusmode Exhibit-22. This witness is Police Official i.e. Head Constable. He has testified that on 8th June, 2008 he was Incharge of Nighoj Outpost. On receipt of the written information from Dr. Zaware that complainant Swati was unconscious and admitted in his hospital, on 8th of June, 2008, he went to the hospital, recorded the complaint/ first information report of complainant Swati in the presence of Dr. Zaware. It is at Exhibit-15. We have 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. seen this Exhibit-15. According to this witness Swati was in a position to give statement. It was verified with the assistance of Dr. Zaware and her statement/ complaint was recorded. Offence was registered. We have also seen the communication addressed to Medical Hospital Exhibit-23 by Police Head Constable P.W.5, seeking information from the medical officer as to whether statement of complainant can be recorded. Evidence of P.W.6 Mr. Suresh Mahadeo Chinchodikar Exhibit-25 is also considered by us. He seems to be the investigating officer. Scene of offence Panchanama is drawn by this witness in the presence of Pancha witnesses, it is at Exhibit-26. He has also recorded statement of Dr. Zaware and obtained medical certificate regarding the health of complainant. He has recorded statements of parents of victim/ complainant Swati, 8 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. arrested the accused persons. Seizure of the clothe on the person of the complainant under Panchanama Exhibit-10 is also on record. According to the prosecution, accused No.1, when he was in police custody, made a disclosure statement that he would show the bottle which was containing Organo Phosphorous Poison at the relevant time. Memorandum Panchanama accordingly was recorded. Though Panch witnesses did not support the prosecution case on this point, said Panchanama Exhibit-27 is proved in the evidence of P.W.6 Suresh Chinchondikar. According to this witness, bottle was kept in a sugarcane crop It was discovered at his instance. Said bottle was containing poisonous substance. After discovery of this bottle, at the instance of Respondent No.1, it was seized under Panchanama and in the presence of Panch witnesses. Attached property was forwarded to Chemical Analyser 9 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. for analysis. Report of the Analyser is placed on record (Exhibit-29). In cross examination, investigating officer admits that complainants father in law and his brothers are in one line adjacent to each other i.e. they are residing in neighbourhood. It is further admitted by this witness that complainant's father in law resides in one room, while his brothers resides in the said two rooms. He has further admitted that he did not record statements of brothers of complainant's father in law. He has recorded statement of father of the complainant. He denied the suggestion that bottle was not discovered at the instance of Respondent No.1/ original accused No.1. 7. In the case on hand, evidence of three witnesses is material. First one is P.W.1 Swati, second is her father P.W.3 Vishwanath and third one is the medical officer P.W.2. 10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. P.W.1 Swati claims that she was abused and beaten by Respondent No.2 mother in law. Such ill-treatment from Respondent No.2 allegedly suffered by P.W.1 Swati was informed to Respondent No.1, her husband. Her husband said she was black, he did not like her and he would go in for second marriage. Harassment of Respondent No.1 mentally and physically, was also alleged by Swati. She claims that she resided with Respondent Nos.1 and 2 for fifteen to twenty days. She had informed her family members alleged ill-treatment. Regarding occurrence of 2nd June, 2008, according to her, at about 03.00 p.m. she was alone in the house. Respondent No.2 came there, held her hands, pushed her on the ground and accused No.1 poured the contains of bottle containing poisonous substance in her mouth, she became restless. Her father in law Narasu came there; rushed her to hospital of Dr. Zaware. 11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. In cross examination, she claims that she had studied up to 10th standard at her maternal uncle's place. She states that her father had been to Mumbai for long time, serving as driver on a container and she used to stay with her mother and unmarried sisters and brother at Punewadi. Her maternal uncle Namdeo stays at Punewadi. One Mr. Vithal Adasare is husband of her sister and match maker. In para 4 of the cross examination, she admits the agricultural holding of her father in law, crops raised there and grown, live stock possessed by her father in law. From this part of the cross examination, learned Judge inferred that her father in law was financially well of. In para 5, he admits that at the time of settlement of her marriage, her father was at Mumbai. Marriage was settled by her maternal uncle Namdeo and husband of her sister Mr. Vithal Adsare. She clearly admits that before settlement of 12 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. marriage, she was approved by Respondent No.1 and vice versa. In other words, thereafter only engagement or ring ceremony had been there and both of them were married on 23rd April, 2008. From this part of the evidence, learned trial Judge inferred that it was arranged marriage with consent of both of them i.e. Respondent No.1 and the complainant Swati. Her story that she was disliked and harassed on the ground of her black complexion is disbelieved by the trial Court. From the evidence, we have noticed the admission of complainant Swati that on 1st June, 2008 when she was at her parents place at Punewadi, Respondent No.1 had been there to fetch her. She wanted to stay at her maternal uncle's place i.e. at the house of Namdeo, who also resides at Punewadi. She requested accordingly. However, Respondent No.1 refused and took her on motorbike to his house at Wajewadi. She also admits in para 6 13 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. that on 1st June, 2008 there was no grievance of either of them i.e. Respondent No.1 or 2 or complainant Swati. On the contrary, Respondent No.1 being son in law, was treated well. It was only her desire to stay at her maternal uncle's place, which was not heeded to by Respondent No.1, that is how on 1st June, 2008 she was taken by Respondent No.1 on motorbike to his place at Wajewadi and thereafter alleged occurrence took place on 2nd June, 2008. 8. We have seen the judgment of the trial Court. Trial Court has appreciated the evidence of all witnesses in proper perspective. Apart from this, we ourselves have read and considered the material brought on record, on behalf of the prosecution. We have also taken into account the provision laid down under section 106 of Evidence Act with reference to the date of occurrence and time of occurrence i.e. 2nd June, 2008 at 14 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 03.00 p.m. We have seen medical case papers placed on record, on behalf of the prosecution. We have considered the time spent by complainant Swati in hospital as indoor patient from 2nd June, 2008 (from 04.30 p.m.) till her discharge on 8th June, 2008. In our view, trial Court, based on the material brought on record, has taken a possible view. The view taken by the trial Court cannot be termed as perverse. Important thing, in our opinion, is none- availability of bottle containing substance of vomiting of complainant Swati. In his evidence P.W.2 medical officer has fairly admitted that the said bottle and its contains were not available. The excuse pleaded by medical officer is that said bottle was broken out. In the case on hand, that was important material. The contains of vomiting of complainant Swati, after about 1-1/2 hour from alleged occurrence was 15 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. bottled. unfortunately, it could not be preserved by the prosecution. Apart from this, we have noticed that case of Swati that she did resist forcible administration of Organo poisonous substance and sustained injuries to her hands, is not being substantiated or corroborated by the evidence of medical officer, P.W.2, despite the fact that within a period of 1-1/2 hour, she was reached to the hospital by Narasu, father in law. The bottle, which was discovered allegedly at the instance of Respondent No.1, containing poisonous substance, was forwarded to Chemical Analyser and has been opined containing poisonous substance. Trial Court did not believe this case of the prosecution on the ground even though discovery Panchanama under section 27 is established in the evidence of investigating officer, both the Panch witnesses did not support it. 9. We do not find substance in this case 16 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. for grant of leave as claimed by the prosecution. 10. Criminal application, seeking leave to appeal, stands rejected. No costs. [S. S. SHINDE, J.] [S.B.DESHMUKH, J.] Dated:26/07/2010. ans/1668