1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.293 OF 1999. Sau. Chandrakalabai w/o Jagannath Ghuge, Age: 45 Yrs., occu. Household R/o Sasegaon Tq. Kannad, District Aurangabad. - PETITIONER VERSUS 1) Devman s/o Vithal Sonwane Age: 30 Yrs., occu. Agril. R/o Nimbhora, Tq. Kannad, District Aurangabad. 2) Vitthal s/o Shivram Sonwane Age: 55 Yrs., occu. and r/o as above. 3) Keshav s/o Trambak Ghuge Age: 45 Yrs., occu. Agril. r/o Sasegaon, Tq. Kannad, District Aurangabad. 4) Gayabai w/o Vitthal Sonwane Age: 50 Yrs., occu. Agril. r/o Nimbhora, Tq. Kannad, District Aurangabad. 2 5) The State of Maharashtra - RESPONDENTS ***** Mr.D.A.Naik, Advocate for Petitioner; Mr.Rahul P.Dhase, Adv.h/for Mr.A.H.Vaishnav,Adv. for Respondent Nos. 1 to 4; Mr.K.M.Suryawanshi, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 8th September, 2009. ORAL JUDGMENT : 1) Heard learned Counsel for the petitioner/original complainant extensively. 2) The acquittal, recorded in Sessions Case No.365/1996 for an offence under Section 498A, 306 r/w 34 of the Indian Penal Code, dated 10th June, 1999 by the Additional Sessions Judge, Aurangabad, is questioned by the petitioner. 3) The factual matrix indicate that deceased Tarabai daughter of complainant – Chandrakalabai and Jagannath Ghuge, married to accused no.1 – Devman four years before her death. Accused nos. 2 and 4 are the parents of accused no.1 -Devman, while accused no.3 is 3 maternal uncle. 4) The unfortunate incident occurred in the evening of 3rd March, 1996, when Tarabai while residing with the accused nos. 1, 2 and 4, She had sudden vomiting and loose motion. The accused carried her to a Medical Practitioner, but even after medical treatment, she expired. The fact of sickness and sad demise of Tarabai was immediately intimated to her parents, her parents rushed in the morning of 4th March, 1996 and they saw the dead body. Thereafter the dead body was referred for inquest and post mortem examination was carried at Govt. Medical Hospital, at Aurangabad. This was followed with funeral on the dead body at Nimbhora. 5) Based on the report lodged by Smt. Chandrakalabai, the estranged mother of deceased Tarabai, offence, vide Crime No.I-20/1996 came to be registered against the accused. 6) After the charge, at Exhibit-3, dated 24.9.1998, the prosecution examined the complainant – Chandrakalabai w/o Jagannath Ghuge 4 (PW.1); Jagannath s/o Shankar Ghuge (PW-2), both are the parents;Rambhau s/o Jairam Ghuge (PW.3)is from the village of the accused, who accompanied the accused while taking the victim to medical treatment. Vithalrao s/o Rambhau Bogane (P.W.4) at Exh.15; Tulshiram s/o Eknath Ghuge (PW.5) at Exh. 16 are the relatives of the complainant. Dr.Kalidas s/o Dattatraya Chavan (PW 6) conducted autopsy on the dead body and issued Post mortem notes. PW 7 – PSI Taak carried the investigation in the matter. 7) During the course of evidence, the inquest was tendered at Exhibit-10; Report at Exhibit-12; purported chit of Tarabai at Exh. 17; spot panchanama at Exh. 18; post mortem notes at Exh. 19 and CA reports at Exhibits 20 and 21. 8) The contention of learned Counsel for the complainant is, there was cruelty. The evidence of Chandrakalabai, Jagannath and Vitthal, needs to be considered, which the learned Judge has not considered. Vitthal has indicated, it was told by the accused, the 5 deceased Tarabai did not know cooking and she was of swallow complexion. Her husband desired to have second marriage. He also demanded Rs. 5,000/- as dowry. Vithal further stated that there was a letter of Tarabai, which he read over to Chandrakalabai. 9) The repeated submission on the point of death of Tarabai by poisoning, is negatived by evidence of PW-6, who has conducted the post mortem on the dead body, signed post mortem notes. In order to remove any doubt and myst in the matter, learned Additional Sessions Judge himself put the question to this witness as to what could be the nature of vomiting and loose motion and what was the cause for the same. The Medical Officer in unequivocal terms, accepted that the death of Tarabai was cerebral and pulmonary oedema associated with symptoms of T.B. The medical officer informs while performing the post mortem on the dead body, he did not notice symptoms of poisoning like smell of poison, erosion of mucosa membrane of stomach. 6 Considering the evidence of PW.6 indicated that the evidence is not conclusive to show that death of Tarabai was due to poisoning. On the other hand, in the cross-examination, he admitted that cerebral and pulmonary oedema might be possible because of vomiting or loose motions. The learned Judge, based on the evidence available, and having analyzed the evidence of PW 1 – Chandrakalabai that Tarabai was not keeping well for a considerable period, She was taken to hospital for treatment from time to time by her husband, has taken a view that the death of Tarabai could not be due to poison and in my opinion, such view was the only possible view, which the learned Judge could take. 10) In order to establish the so-called cruelty to the victim Tarabai, we have the evidence of earlier referred three witnesses, Chandrakalabai; Jagannath and Vitthal. However, Chandrakalabai candidly accepted she had not come across any such demand from the accused. The letter purportedly issued by Tarabai, read by 7 Vitthal, is not established to have been in the hand-writing of Tarabai. Simply tender of the letter by itself will not indicate it is proved. 11) It was indicated by the complainant that the harassment was due to Tarabai not knowing cooking or she was of swallow complexion. However, these aspects, though stated in the Chief, were not forming part of the F.I.R./complaint lodged by the complainant. At the time of funeral, Police Patil of the village and Sarpanch were also present. Nobody suspected any foul play in the death of Tarabai. The distance between Pishor police station and village Nimbhora, is just 8 kms. Consequently, it was possible for Chandrakalabai to lodge the report to the police on 4th March, 1996 itself when she suspected the foul play in the death of Tarabai. The belated lodging of report to the police gave time to the complainant and to the witnesses to cook a story to falsely implicate the accused, in-laws of the victim. 12) The observations of the learned Judge, 8 on analysis of the evidence, cannot be said to be contrary to the record. The acquittal recorded by the learned Judge cannot be said to be perverse or out of context. Accordingly, the acquittal need not be interfered with. Criminal Revision Application dismissed. Rule discharged. ( K.U.CHANDIWAL ) JUDGE bdv/crrv293.99