1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1093 OF 2011 Maruti Bhagwan Kalsule .Applicant V/s. The State of Maharashtra & ors .Respondents Mr.R.B.Deshmukh, Advocate, for the Applicant Smt.V.R.Bhosale, APP, for Respondent No.1 - State CORAM : R.C.CHAVAN, J. DATE : 18TH NOVEMBER, 2011 P.C. . Heard the learned counsel for the respective parties. 2. This is an application for leave to file an appeal against acquittal of the respondents by the learned Assistant Sessions Judge, Pandharpur for the offences punishable under Sections 498A, 306, 323, 504, 506 read with Section 34 of the Indian Penal Code. Victim Urmila was married to Balasaheb on 18th 2 November, 2005. She gave birth to a son by name Satyajeet and a daughter by name Saraswati. About one month prior to 14th June, 2009, marriage of one Bapu Dagadu Kalsule, victim's cousin was performed. At that time, respondent No.1 is alleged to have demanded a sum of Rs. 40,000/- and one tola of Gold for the purchase of tractor. Earlier demand of one tola of Gold at the time of each delivery had been complied with. 3. On 14th June, 2009 victim's brother, Maruti met the victim. Demand of Rs.40,000/- and one tola Gold was again conveyed to Maruti. On 18th June, 2009 one Appasaheb Gorad informed the victim's family that he had received a message from one Aldar Guruji that victim was missing from 6:00 p.m. on 18th June, 2009. The victim's father and brother reached the house at 11:00 p.m.. Next day victim's body was fished up from a well near the house. Inquest 3 panchanama showed that there was some injury to the victim's nose and also to private parts. However, post mortem notes do not show any such injury. 4. On the report by Maruti, an offence was registered and on completion of investigation, charge sheet was sent to the learned Judicial Magistrate F.C., Sangola, who committed the case to the Court of Sessions at Pandharpur. The learned Judge held that offence was not proved on appreciating the evidence of victim's family members PW-1 Maruti Kalsule, PW-2 Dagadu Kalsule, PW-3 Bhagwan Kalsule and PW-7 Mandakini Magar apart from the evidence of PW-4 Balasaheb Katkar, PW-6 Vasant Pawar, neighbour PW-8 Hanmant Kokare and two police officers. The learned Judge found the material was inadequate to conclude that there was any illtreatment of the victim or that the victim was provoked to commit suicide on account of conduct of the 4 respondents. 5. The learned counsel for the respondents relied on presumption under Section 113A of the Indian Evidence Act, since death had occurred within a period of seven years of marriage. For invoking that presumption, it had to be shown that the victim had been subjected to cruelty. Now, as far as first 2 demands of one tola Gold, at the time of birth of the children are concerned, those demands were stated to have been fulfilled and therefore, there is no question of the respondents harbouring any animus on that count. About the demand of Rs. 40,000/- and one tola Gold at the time of marriage of Bapu Dagadu, the evidence is discrepant. While PW-1 and PW-3 stated that they had promised the accused that they would pay this amount, PW-7, victim's sister, states that they admonished the accused when such demand was made. Incidently, family of the 5 respondents has irrigated land, tractor and two motor cycles as per the evidence of PW-1. Again about the demand being reiterated on 14th June, 2009, the evidence is discrepant. While Maruti stated that demand was conveyed to him by his sister, PW-2 his uncle has stated that the accused had asked Maruti whether he had brought money or Gold. When allegations about illtreatment are only based on what a person said to another, such discrepancies could have pursuaded the learned Judge to refuse to believe the witnesses. The learned counsel for the applicant is right in submitting that the learned Judge should not have been influenced by the fact that the complainant Maruti was present in Court on each and every date. This was an irrelevant consideration, just as applicants' annexing Exhibit D to the present application is an irrelevant addition to the record. All the same, though another view of the matter was possible, it cannot be said that view taken by 6 the learned Judge is perverse or improbable. Leave refused. Appeal dismissed. (R.C.CHAVAN, J.)