IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 560 OF 1997 The State/Administrator of Daman ... Appellants. Versus Naresh Bawa Solanki ... Respondent. Mr. D.A. Nalavade, Advocate for Appellants. Mr. J.P. Yagnik, Advocate for Respondent. CORAM : A.S. OKA, J. DATE : APRIL 4, 2009 ORAL JUDGEMENT: 1. This is an appeal preferred by the State challenging the judgement and order dated 23/07 / 1 997 passed by the Learned Sessions Judge, Daman by which Respondent has been acquitted of the offences alleged under Section 498- A and Section 306 of the Indian Penal Code. 2. The case of the prosecution is that the Respondent- accused married to one Shobhnaben in the year 1991 and three children were born from the said wedlock. The case of the prosecution is that the Respondent always used to ill-treat and beat his wife. On 04/03 / 1 995, the Respondent severely assaulted the said Shobhnaben and threatened her to kill by setting her on fire. At that stage, the said Shobhnaben (hereinafter referred to as the deceased) visited her parent's house and made a complaint as there was a danger to her life, she was reluctant to return to her matrimonial home, however, her mother convinced her to go back. 3. On 15/03 / 1 995, in the evening, the sister- in- law of the deceased visited the house of the mother of the deceased and : 2 : informed the mother about the ill health of the deceased. Therefore, the parents of the deceased rushed to the house of the Respondent and at that time they found that the deceased was lying dead. On 16/03 / 1995, in the night the mother of the deceased filed a complaint with the police station. 4. The Respondent was arrested and later on his case was committed to the Court of Sessions. The Prosecution examined 9 witnesses. By the impugned judgement and order, the learned Sessions Judge held that the guilt of the Respondent has not been proved. 5. The learned counsel appearing for the Appellant has taken me through the notes of the evidence and other evidence on record. He submitted that the learned Sessions Judge has completely ignored the provision of Section 113- A of the Indian Evidence Act, 1872. He submitted that the earlier incident of 04/03 / 1995 of the Respondent threatening the deceased to kill her has been completely ignored by the learned Judge. Inviting my attention to the evidence of the Medical Officer, he submitted that the learned Judge has committed an error by holding that cause of death of the deceased is not established by the prosecution. He submitted that the impugned Judgement and order is perverse and deserves to be set aside. The learned counsel appearing for the Respondent supported the impugned judgement and order. 6. I have carefully considered the submissions. I have perused the notes of the evidence and the record of the case. 7. The first witness examined by Prosecution is Dr. D.S. Kamaliya. He stated that on 15/03 / 1 995 at about 11.00 p.m. one relative of the deceased called him. He stated that when he visited : 3 : the residence of the Respondent, he found that condition of the deceased was serious. He stated that he did not treat the deceased and advised her relative to take her somewhere else. PW2 Dr. Shamji B. Solanki is also a Private Medical Practitioner, who was called to the residence of the Respondent at 1.00 a.m. on 16/03 / 1995. He stated that when he visited the residence of the Respondent, he found that the deceased had already expired. He examined the son of the deceased. He found that the condition of the son was serious. 8. As far as cause of death of the deceased is concerned, it will be necessary to refer to the evidence of PW7 Dr. B.R. Chand. He stated that he conducted post mortem of the bodies of the deceased as well as her son Mayur. As far as the deceased is concerned, he stated that the cause of death was due to Asphysixation. He stated that the viscera was sent to the Chemical Analyser. As far as son is concerned, he gave the cause of death as Asphysixia. He stated that viscera was sent for Chemical Analysis. He stated that the reports of the Chemical Analyser disclosed that the viscera did not contain any poison. 9. In the examination- in- chief, the PW7 stated as under : “Normally usual causes of asphyxiation are due to suffocation stargulation, dtowing etc. However on examination of these dead bodies there was nothing to indicate any of these cause. According to me it may be due to some poisoning. Sometimes poison may not be detected in viscera.” 10. In the cross- examination PW7 admitted that after death, poison is not metabolised. He also admitted that poison is not the only cause for suffocation. : 4 : 11. The reports of the Chemical Analyser i.e. Exhibits 14 and 15 show that the general and specific chemical testing of the viscera does not reveal any poison. After the report of the Chemical Analyser were received, there is no final cause of death certificate issued by the concerned Medical officer. On this aspect, it will be necessary to refer to the charge framed for the offence under Section 306 of the Indian Penal Code. The charge is that the deceased committed suicide and the Respondent abetted the commission of suicide. The evidence on record shows that the deceased and her son did not die natural death. The perusal of the post mortem reports do not show that there were any marks on the dead body of the son thereby indicating acts of violence. The case of prosecution made out before the Sessions Court was that the deceased and her son died due to consumption of poison. The reports of the Chemical Analyser do not support the prosecution case of death being caused by consumption of poison. It must be noted here that it has come on the record in the evidence of Investigating Officer that he had seized a cup containing certain liquid, however, the said liquid was not sent for Chemical Analysis. Considering of these aspects, the learned Judge has recorded a finding that the prosecution has not established that the death was due to consumption of poison. Further finding recorded by the learned Judge is that the cause of death was not established by the prosecution and consequently suicidal death is not established by prosecution. Considering the nature of the evidence discussed above, the said findings recorded by the learned Sessions Judge are certainly possible and probable findings. Therefore, the learned Judge was right in holding that charge for commission of offence under Section 306 was not proved. : 5 : 12. Now turning to the charge framed for the offence punishable under Section 498- A, it will be necessary to refer to the evidence of the other prosecution witnesses. The PW3 is Manjula, mother of the deceased. She stated that on 04/03 / 1995 the Respondent had beaten the deceased and had threatened her to set her on fire by pouring petrol on her person. She alleged that at 2.00 p.m. on the same day, an attempt was made by the Respondent to assault the deceased by a dagger. Therefore, the deceased came to her residence and stayed with her. According to her version, the Respondent came to her residence at 10.00 p.m. and gave fist blows to the deceased. She stated that though the deceased was not ready to go back to her matrimonial home on the next day in the morning, her mother- in- law persuaded her to return. She went back to her matrimonial home. She stated that at 11.00 p.m. on 15/03 / 1995, the sister- in- law of the Respondent and a neighbour by the name Taraben came to her house and informed that the Respondent had killed her daughter and grandson. She stated that when she reached the matrimonial home of her daughter, she found that her daughter was already dead and condition of her son Mayur was critical. She stated that the other two children of her daughter were vomiting. 13. In the cross- examination, she admitted that when she lodged a complaint with the police, she did not disclose the incident of 04/03 / 1 995 as well as 15/03 / 1995 to the police. She volunteered in the cross- examination by stating that the incidents narrated by her were reduced to writing on a piece of paper and the said paper has been suppressed by the police. : 6 : 14. PW4 is one Champa. She stated that on 15.03.1995 at about 11.30 at night, the father of the deceased came to her house thereafter she alongwith the parents of the deceased proceeded to the matrimonial home of the deceased. She stated that brother of the Respondent assaulted the father of the deceased when he tried to enter the house of the Respondent. In the cross- examination she admitted that in her statement before the police the incident of assault by the brother of the Respondent has not been recorded. 15. PW5 is the father of the deceased. He has not deposed about any act of cruelty on the part of the Respondent against his daughter. He admitted that he did not file any complaint against the brother of the Respondent. 16. PW8 Dayavanti is neighbour of the deceased. The said witness was declared hostile as she did not support the prosecution. 17. Thus, the perusal of the evidence shows that except PW3, the mother of the deceased, no one has deposed before the Court regarding any acts of cruelty on the part of the Respondent. PW3 deposed about the incident of 04/03 / 1995. However, she admitted that in her police statement, she did not disclose the said incident. Considering all these aspects, the learned Sessions Judge has recorded a finding that offence under Section 498- A is not proved. Even the said finding is a possible finding, which is supported by the evidence on record. 18. Hence, there is no merit in the appeal and the appeal is dismissed. (A.S. OKA, J.)