1 Cri.apln. 2064.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2064 OF 2010 State of Maharashtra , Through, Police Inspector, Police Station, Nilanga. .. APPLICANT VERSUS 1. Vithal S/o Pandhari Deshmukh Age 26 years, Occu.Agriculture, R/o Gaur, Tq. Nilanga, Dist.Latur. 2. Pandhari S/o Madhav Deshmukh Age:50 years, Occu & R/o as above. 3. Chandrakant @ Buntal S/o Pandhari Deshmukh Age 23 years, Occu & R/o as above. 4. Sow.Sakhubai W/o Pandhari Deshmukh Age:45 years, Occu: Household, R/o as above. ..RESPONDENTS ..... Shri.K.G.Patil, A.P.P. for State/ applicant. Shri.S.J.Salunke , Learned counsel for the respondent no.2 to 4 Respondent no.1 served. ...... -2- Cri.apln. 2064.10 CORAM : NARESH H.PATIL & T.V.NALAWADE, JJ. RESERVED ON : 15 / 04 /2011 PRONOUNCED ON : 26 / 04 /2011 ORDER : [ PER T.V.NALAVADE, J.] 1. This application is filed by the State for grant of leave to file appeal against the Judgment and order of Sessions Case No.32 of 2008. The Sessions Case is decided by the Court of Additional Sessions Judge, Nilanga, District Latur and by the decision dated 11/02/2010 the trial Court has acquitted all the respondents of the offences punishable Under Section 304-B, 306, 498-A and 34 of I.P.C. They are also acquitted of the offences punishable Under Section 3 and 4 of Dowry Prohibition Act. 2. The record of the Sessions Case was called in the present proceedings. This Court has heard both the sides. The points raised by both the side are being discussed hereinafter. 3. The evidence given by prosecution in the trial Court shows that the deceased Archana was a daughter of first informant Bapurao Jadhav. Bapurao is the residence of Kadmugali Tahsil Chakur Dist.Latur. Archana was given in marriage to the present respondent -3- Cri.apln.2064.10 no.1 on 30/04/2006. Accused no.2 and 4 are the parents of accused no.1 and accused no.3 is the brother of accused no.1. All the accused are residents of village Gaur Tahsil Nilanga, district Latur and they were living in the same house at the relevant time. 4. Bapurao, the father of deceased has given evidence that at the time of settlement of the marriage he had agreed to give dowry of Rs. 71,000/- in addition to few gold ornaments to accused persons. He has given evidence that in the marriage he could give only Rs.41,000/- as dowry and he had promised to give remaining amount of Rs.30,000/- after few months. Bapurao has given evidence that the deceased started disclosing to him after four to five months of the marriage that the accused were demanding the remaining amount of Rs. 30,000/- and to force her to bring the amount from the parents, they were giving ill treatment to her. Bapurao has given evidence that deceased used to disclose that accused were even giving beating to her. Archana was then gave birth to a son but the illtreatment was continued by the accused persons. Babpurao has given evidence that about one month prior to the death of Archana the marriage of accused no.3 was performed and at that time also the accused persons -4- Cri.apln.2064.2010 had demanded a gold ring for accused no.1 on the occasion of the marriage. Bapurao has given evidence that he some how managed to give a gold ring to accused no.1. Bhanudas Jadhav had acted as mediator for settling this marriage and he has given evidence that there was agreement to give dowry of Rs.71,000/- . He has also given evidence that the deceased had disclosed to him directly about the ill- treatment and on few occasions he had learnt about the illtreatment from the parents of the deceased. 5. Bapurao has given evidence that at about 4.00 p.m. on 21/8/2008 the deceased had contacted him on telephone and she had informed that the intensity of illtreatment was increased by accused as the demand of dowry was not met with. Bapurao has given evidence that he had promised to come to her house after few days when he was likely to visit village Gaur on the occasion of a festival. Bapurao has given evidence that on the night between 21st August and 22nd August they received information that Archana had consumed poison and she was admitted in Government Hospital, Latur. Bapurao has given evidence that when he visited hospital he learnt that his -5- Cri.apln.2064.2010 daughter was dead and nobody from the family of the accused was present in the hospital. 6. Bapurao gave the FIR on 22/08/2008 and the crime came to be registered at about 15:20 hours. One police officer Gaikwad has given evidence that nobody from accused was present in the hospital when he visited the hospital and so he was required to wait till the arrival of the parents of the deceased for preparation of inquest panchanama. 7. The prosecution has examined medical officer who conducted the post-mortum examination on the dead body. The viscera was preserved by the medical officer. The viscera and the articles like tin box of insecticide and the clothes of the deceased were forwarded to C.A. Office. Insecticide ( poison ) Endosulphan was detected on all these articles. The doctor has given opinion that the death took place due to endosulfan poisoning. The defence has not disputed the cause of death. In inquest panchanama there is mention that on some portion of dead body there was mark of reddish colour and blackish colour of skin but the doctor has given evidence that such stains or -6- Cri.apln.2064.2010 colouration occur after sometime of the death and there was no injury as such on the person of the deceased. 8. The evidence of spot panchanama is not disputed. The panch witnesses used by investigating agency were from the village of the accused. The spot panchanama at Exh.23 shows that the incident took place in the room which was being used as bed room by accused no.1 and deceased. There was one more similar room in the house which was in the use of accused no.3 and his wife as bed room. There was a hall portion to the house and probably in that portion accused no.2 & 4 were sleeping . The tin box of insecticides was found in the room of accused no.1. 9. The accused have examined the wife of accused no.3 Sangita as a defence witness. She has given evidence that on that day accused no.2 returned to home after 8.30 p.m. and then they took the dinner. She has given evidence that they were watching programmes on television for some time and they discussed about probable visit to Turupati Balaji and after that she returned to her bed room. She had deposed that the deceased went to the bed room of accused no.1 with -7- Cri.apln.2064.2010 her son aged about one year. She has deposed that when they heard that the deceased was shouting, they rushed to the said room and then they noticed that Archana had consumed poison. 10. The trial Court has believed the defence witness. The evidence given by the defence witness and suggestions given to prosecution witnesses during cross examination do not show that any doctor was called for giving treatment to the deceased. If the incident took place after 8.30 p.m. and prior to 00.30 hours of the night, in ordinary course the members of family of accused would have called doctor and some urgent treatment could have been given. The defence witness has tried to say that butter milk was administered to the deceased and then the deceased was shifted to the hospital. The record shows that the dead body of Archana was brought to the hospital. There is the evidence of prosecution witnesses that they received the information about the incident after 00.30 hours. 11. In view of the evidence of spot panchanama and also evidence given by the defence witness it was necessary for accused no.1, the husband of deceased to explain as to when and why the -8- Cri.apln.2064.2010 deceased consumed poison. It can be said that immediate medical treatment was not given to the deceased. The defence witness has tried to say that on one occasion the deceased had disclosed that she was not happy with this marriage as accused no.1 was related to her and the relation was like maternal uncle and niece. Suggestions to that effect are also given in this regard to prosecution witness. Bapurao has admitted that sister of accused no.2 is given in marriage to younger brother of Bapurao but the other suggestions are denied. A son was born to the deceased from accused no.1. In view of this circumstance it does not look probable that deceased was not happy with this marriage. 12. Archana died due to poisoning within three years of the marriage. The poisoning took place in the room of accused no.1 and in the night time, after taking of the dinner. In view of these circumstance at least accused no.1 ought to have explained as to how, when and why Archana consumed poison. The prosecution witnesses have given evidence that the dowry of Rs.30,000/- was yet to be given and for that there was illtreatment to Archana. The death of Archana took place otherwise than normal circumstances and there is the -9- Cri.apln.2064.2010 evidence given that illtreatment was given to the deceased in connection with the demand of dowry. Section 113-B of Evidence Act provides for raising presumption against the accused in such a case that accused caused the dowry death. Even if the defence of the accused that it is suicide is accepted, in view of the aforesaid circumstances the Court has discretionary power to use Section 113-A of Evidence Act which raises presumption of abatement of suicide. These provisions are not considered in proper perspective. The non explanation of aforesaid circumstance at least by the accused no.1 ought to have been taken into consideration by the trial Court and that is not duly considered. The so called disclosers of the deceased were recent in time and the last discloser was allegedly made on 21st August, the previous day, within few hours prior to the incident in question. If the prosecution witnesses are believed, such discloser can be used as dying declaration against accused. This material is also sufficient to make out case for offence punishable Under Section 498-A of Indian Penal Code and thus State has strong points to argue at least as against accused no.1. In respect of accused nos.2 to 4 it can be said that the burden was not that heavy on them to explain the aforesaid circumstances. Accused no.1 was in service and he was not -10- Cri.apln.2064.2010 depending on the remaining accused persons for livelihood of his own family. In view of these circumstance the burden was more on accused no.1 to explain aforesaid circumstances. 13. In view of the discussion made above this Court has no hesitation to hold that it is fit case to grant leave to the State to file appeal against accused no.1, husband of deceased, Vithal Pandhari Deshmukh. So, the application against accused no.1 is allowed. The application however stands rejected in respect of accused no.2 to 4. [ T.V.NALAWADE, J. ] [ NARESH H.PATIL, J.] dsp/cri.apl.no.2064.2010 It was submitted that the accused for considerable delay was caused by Balaji for giving report to police. Though it is true that the dead body was found at about 6.00 p.m. and the crime was registered at about 2.45 p.m. on 26/03/2008, the circumstance like deceased was a son of Balaji and accused is also son of Balaji and he has not more son own to be keep in mind. The dead body was found at the distance of more than 2 kms from village and Balaji has given evidence that he saw dead body at about 9.00 p.m. and he left for approaching police. Balaji owns ultimately 1 and 1/2 acres of land and there is no need to say that the accused of poor persons like Balaji are not attended immediately by police. The evidence does not show that any favour given have been taken to the spot where dead body was lying In view of this circumstances so called delay caused in registration the crime of the go to the route of the case. Surprisingly due to cross examination of Balaji suggestions are given to the effect that the accused on had dispute on other ground with Balaji. He suggested that some amount was given by the accused to Balaji for safe custody and Balaji was not ready to return him. Suggesstion is also given that there was no dispute that accused has sold she-goats of the family without taking prior permission of Balaji. The explanation given by the accused in statement given under Section 313 of Cr.P.C. shows that he has an anger against Balaji and his family member from his second wife. It is also suggested that the second wife of Balaji was harassing the accused.