1 cr­apln­5098­10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLN.NO.5098 OF 2010 The State of Maharashtra ..Applicant Vs. Santosh Kondiba Ghodake and Ors. ..Respondents .... Mrs.A.S.Pai A.P.P. for the Applicant-State .... CORAM : B.H.MARLAPALLE AND U.D.SALVI, JJ. DATE : JANUARY 20, 2011 P.C.: 1 We have heard Mrs. Pai, the learned A.P.P. The State of Maharashtra has filed this application seeking leave to appeal under Section 378(3) of Cr.P.C. against the order of acquittal passed by the learned Ad-hoc Additional Sessions Judge dated 16.7.2010 in Sessions 2 cr­apln­5098­10 Case No. 34 of 2009. All the respondents were tried in the said case for the offences punishable under Sections 498-A, 304-B and 306 read with Section 34 of Indian Penal Code and all of them came to be acquitted of all the charges by the learned Ad-hoc Additional Sessions Judge. 2 As per the prosecution case, deceased Savita daughter of PW 1 Shivaji Jadhav was married to accused no.1 on 28.4.2008. She had studied upto 10th standard but the accused no.1 had not passed beyond the 5th Standard. On 10.11.2008 i.e. after about four and half months of her marriage, she died an unnatural death while in the company of accused nos.2 and 3 and the post mortem report indicated that the cause of death was “ shock due to cardio respiratory arrest due to organo- phosphorous poisoning ” . Initially, A.D. No. 61 of 2008 was registered on the basis of spot panchnama at Exh. 26 and inquest was also prepared at Exh. 25. After the post mortem, the dead body was handed over to the parents of the deceased and both the parties performed the last rites, on 11.11.2008, around 03.00 p.m. In the night of 11.11.2008 P.W. 1 Shivaji approached the police station and lodged his complaint on the basis of which, C.R. No. 194 of 2008 came to be registered. Accused nos.1 and 2 were immediately taken in custody and accused no.3 was arrested after few days. The prosecution examined in all 7 witnesses and P.W. 7 was the Head Constable Pawar who had recorded A.D. No. 61 of 2008 as well 3 cr­apln­5098­10 as C.R. No. 194 of 2008. P.W. No. 1 to P.W. No.6 were the close relations from the parental side of the deceased. The prosecution case was that within 15 days of the marriage of the deceased with accused no. 1, the father of accused no.1 died of cancer and therefore, the deceased was being taunted as an inauspicious entrant in the family and was being harassed on that count. The second allegation was that there was a demand for a four wheeler and on that count, the deceased was being asked to bring money from her parents. The learned Ad-hoc Additional Sessions Judge discarded the testimony in support of these allegations of harassment as well as cruelty and held that the prosecution could not prove its case beyond reasonable doubts against any of the accused either under Section 304-B or 498-A or 306 of I.P.C. 3 We have gone through the depositions of all the witnesses as well as the post mortem report at Exh.27. The evidence of P.W. No.1 to P.W. No.6 is on similar lines but in the cross-examination each one of them admitted that before the incident at no point of time, either any complaint was filed against any of the accused or any mediator was approached so as to ensure that the accused treated the deceased properly or any community panchayat was approached. It was also admitted that none of them had taken up the issue of ill treatment with any of the accused, more so, when it was an arranged marriage. The defence 4 cr­apln­5098­10 of the accused was specifically stated in their statements recorded under Section 313 of Cr.P.C. and it was in the following words: “ my father was suffering from cancer. Doctor told that my father will not survive any more days. Therefore, my marriage was performed in his lifetime. My father died after one and half month from my marriage. My mother ’s father (grand-father of mine) was aged about 90 years and was also suffering from cancer. In the field, the work of spreading pesticides and antiseptic was going on. Consequently, Savita felt giddiness and fell in the field. She was taken in the hospital of Dr. Padole at Tembhruni. From there, my brothers informed me that she was taken at Akluj where she died. While proceeding from Akluj to Chandaj on way village Tadegaon is located. When Savita was taken to hospital at Akluj, her relations from parents side were present. They said that the dead body of Savita be kept there at Adegaon and their relatives can gather. In the meanwhile, police reached. Panchnama was prepared. On enquiry made by the police, Savita ’s father said that he had no complaint. Dead body was sent for post mortem. On the next day, a false and concocted report was lodged against us. As Savita died, witnesses have deposed falsely against us ” . 4 P.W. No.7 Niwas Pawar was the police constable on duty at Tembhurni Police Station. In his depositions before the trial Court, he 5 cr­apln­5098­10 stated that at about 1 a.m. on 11.11.2008, A.D. No. 61 of 2008 was registered with the said police station on account of unnatural death of Savita Santosh Ghodake and A.S.I. Bhandari called him in the police station and handed over him the case papers of A.D. to him for further investigation. Exh. 36 was the entry made in the register of unnatural death under his signature. He further stated that the dead body was handed over to the parents of the deceased and both the parties attended the cremation. However, after 19.15 hours on 11.11.2008, P.W. 1 Shivaji went to the police station and lodged his complaint which was registered as an F.I.R. and both the accused i.e. accused nos.1 and 2 came to be arrested on the same day, followed by the arrest of accused no.3 on 28.11.2008.... Surprisingly, the prosecution did not examine the Medical Officer who performed the post mortem of the dead body of Savita. It was necessary for the prosecution to discharge its burden by examining the Medical Officer so as to prove that Savita did not die an accidental death and in our opinion, the post mortem report does not rule out an accidental death. It was necessary to examine the doctor so as to rule out accidental death, in the peculiar facts and circumstances of this case. 5 Having regard to the oral depositions of P.W. 1 to P.W. 6 as well as the post mortem report and the failure of the prosecution to examine the Medical Officer, we have no doubt that the trial Court did not 6 cr­apln­5098­10 commit any error in acquitting the accused and granting benefit of doubt to them. The evidence as adduced by the prosecution before the trial Court does not call for any reconsideration at our hands. Accused no. 1 was not at the spot when the incident had taken place. If he had studied only upto 4th or 5th standard, it would be unsafe to believe that he would demand a two wheeler from his father-in-law. It was well known to the witness that the father of accused nos. 1 and 2 and the father of accused no. 3, both died of cancer and obviously they were ailing for time. In no case, it was a sudden demise. 6 Hence, leave to appeal is refused and the application is rejected. [ U.D.SALVI, J.] [ B.H.MARLAPALLE,J.]