1 cr-appln.5863-2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5863 OF 2010 The State of Maharashtra ...Applicant. Vs. Ananda @ Pintya Tukaram Mane-Deshmukh ...Respondent. ---- Mrs. A.S. Pai, APP for the Applicant-State. --- CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. FEBRUARY 17, 2011. P.C.:- 1 Leave to file an appeal against the judgment and order of acquittal, in Sessions Case No.24 of 2008 under Sections 452, 376, 306 of IPC, 1860 passed by the learned Additional District & Sessions Judge, Malshiras on 30th September, 2010, is sought in the present application. Allegedly the deceased Minakshi Jadhav wife of the complainant-PW-2 Prakash Jadhav committed suicide by consuming insecticides following commission of rape on her by the respondent- 2 cr-appln.5863-2010 accused-Ananda @ Pintya Tukaram Mane-Deshmukh in the house of the complainant situated at village Lonand, Taluka-Malshiras, District-Solapur in the afternoon of 1.4.2008. 2 The respondent-accused Anand denied his involvement in the crime and specifically asserted that as a result of his complaint regarding the theft of electric meter installed on his well lodged against the complainant PW-2 Prakash Jadhav and one Bhimrao Hol, he has been falsely implicated in the present case following threat to that effect vide statement at Exh.58 recorded in response to his examination under Section 313 of Cr. P.C., 1973. 3 Though the prosecution examined nine witnesses, no eye- witness account of the crime was adduced in evidence. The entire prosecution case thus rested on the three oral dying declarations allegedly made by the deceased before her husband-PW-2 Prakash Jadhav, grand- mother of the complainant PW-3 Chandrabai Mane-Deshmukh and PW-6- Vijay Hol and two written dying declarations in the form of chits allegedly written by the deceased Minakshi. The learned trial court after duly appreciating the prosecution evidence, particularly the medical evidence, CA reports and hand-writing expert’s opinion and circumstances preceding the crime as well as those obtaining at the material time rhetorically posed 3 cr-appln.5863-2010 a question- can we not read between the lines and proceeded to dismiss the hypothesis of rape which allegedly prompted the deceased Minakshi to commit suicide. Whether the prosecution evidence justifies such rhetoric or not is the question which needs to be answered before granting leave in the present application. 4 PW-1-Dnyandeo Pawar was instrumental in placing on record the scene of offence panchanama at Exh.11. He provided view of the fact that poisonous insecticides Phorassan Phorate 10% CG , one glass, fevicol tube, two invitation cards with something scribed thereon were sized from the residential house situated at Sherevadi Taluka-Malshiras on 1.4.2008. His cross examination reveals that he left Natepute Police Station around 11.00 a.m. on 1.4.2008 in Police jeep and reached the spot around 11.30 a.m. some 15-16 Kms. away from the police station, and further did not notice any other house adjacent to the sport of incidence and the sealing of articles. Through his cross examination raises some question, nothing much turns in the present case as a result of the cross examination. 5 PW-2 Prakash Jadhav the complainant deposed that around 3.00 p.m. on 1.4.2008 while he was at Natepute a place 5 Km. away from his residence, he had received a call on his mobile from one Mr. Vijay Hol requesting him to call back, and when he called back, he could find his 4 cr-appln.5863-2010 wife Minakshi on the line requesting him to come back as she was raped by her maternal uncle Ananda and thereupon he returned to his residence on a motor-cycle and found his wife Minakshi in the field behind his residence in the company of his grand mother PW-3 Chandrabai Mane-Deshmukh. It is in her presence, he deposed the deceased Minakshi told him that Pintya had raped her and having lost a reason to live as a result thereof, she had consumed a poison; and, thereafter, she was removed to a government hospital at Natepute where the deceased Minakshi was declared dead. He explained that Pintya was the accused Anand. He referred to an incidence which had occurred six months back when the accused had winked at Minakshi. He deposed that he had lodged a complaint (Exh.15) with the Natepute Police Station against the accused on the very day of the incident in the present case. 6 The dark side of the case was brought to light in the cross examination of PW-2 Prakash Jadhav. His cross examination reveals that the deceased Minakshi had filed a complaint with Natepute Police Station at about 10.15 p.m. on 28.11.2007 about cruel treatment meted out to her by PW-2 Prakash Jadhav and his mother. His cross examination further reveals that there used to be quarrel between PW-2 Prakash Jadhav and the deceased Minakshi thereafter and, therefore, meeting between her parents 5 cr-appln.5863-2010 and his relatives had to be called when the deceased agreed to behave properly. The cross examination further reveals that deceased Minakshi was a short tempered woman who used to leave his house and go to her parents’ residence after the quarrel on petty reason. Interestingly, his cross examination reveals that he did not disclose the fact of conversation between him and Minakshi on phone to one Subhash Kharat who was with him at the time he happened to receive a call from Vijay Hol and he had not lodged any complaint against Ananda about his lewd act of winking eye at deceased Minakshi. The fact of the lodging of criminal case of theft of electric motor pump against Ananda and Janardan, and he being on cross terms with the accused on account of the same figures in the cross examination of PW-2 Prakash Jadhav. 7 P.W. 3 Chandrabai, grand mother of P.W. 2 Prakash, did not witness the alleged act of rape on the deceased Minakshi and consumption of insecticide following thereto. A limited view of the facts in relation to the crime in question is available in her testimony. According to her, the deceased Minakshi came sobbing and told her that she was raped by Pintya and she was going to make a call to her husband and therefore, the deceased Minakshi first went to one Popat Bodhle and thereafter to P.W. 6 6 cr-appln.5863-2010 Vijay Hol for making a call to her husband. Neither Popat Bodhle was examined nor any investigation made to verify the fact of making of the call on the mobile of P.W. 6 Vijay Hol. Evidence of P.W. 6 Vijay Hol speaks about P.W. 2 Prakash talking to Minakshi on his mobile. In his cross-examination, he was unable to give mobile number of Prakash to which, he claimed to have made phone call on mobile at the instance of the deceased Minakshi initially. He further revealed in his cross-examination that the deceased Minakshi talked with her husband from a distance of about 10 feet from him and he had no personal knowledge about she consuming poison. He further disclosed in his cross-examination that complainant P.W. 2 Prakash, his brother Bhimrao and two more persons were arrested by the police and were detained in jail for 2 to 3 days following the complaint made by the accused regarding theft of his electric motor pump, and that he has cordial relations with PW-2-Prakash. 8 Surprisingly, P.W.3 Chandrabai gave no account of the facts following the alleged disclosure made by deceased Minakshi about rape on her. According to P.W.6 Vijay Hol after about one to one and half hour following the talk of the deceased Minakshi with her husband on his mobile, he heard P.W.3 Chandrabai crying on account of the deceased 7 cr-appln.5863-2010 Minakshi consuming poison. Turning to the evidence of P.W.3 Chandrabai one can easily get an impression that no sooner the deceased Minakshi returned after making a phone call, she fell down in the field and her mouth smelt of insecticides. Her cross-examination reveals her struggle to deny the fact of lodging of the complaint by the deceased Minakshi against her husband P.W.2 Prakash on 28.11.2007 following the cruel treatment meted out to her by P.W.2 Prakash and his mother Mangal. Pertinently, her cross- examination further reveals that houses of Popat Bodhle and P.W. 6 Vijay Hol are situate at 1.5 km. distance from her house and are situate diametrically opposite to each other. 9 P.W.4 Dilawar Attar testified regarding seizure of chits Exhs. 23 and 24 under panchnama Exh. 21 and sealing of the said chits in the envelop. 10 P.W. 5 Rajaram Wagh father of the deceased Minakshi gave clean chit to P.W.2 Prakash and his mother in so far as their relations with the deceased were concerned. He identified handwriting on the chits Exhs. 23 and 24 as that of his daughter the deceased Minakshi. However, he was not witness to the incident. Though he talked about the mischievous 8 cr-appln.5863-2010 behaviour of the accused vis-a-vis the deceased Minakshi, he admitted in his cross-examination that he had no personal knowledge about it and had not filed any complaint in respect of mischievous conduct of the accused. The Handwriting Expert’s opinion Exh. 25 is inconclusive as regards the writings on the chits Exhs. 23 and 24. 11 The evidence of P.W. 7 Dr. Hemant Dixit reveals that there were no external injury marks on the body of the deceased and the deceased was found to have consumed white fluid smelling of organic phosphorous and died as a result of asphyxia caused on account of organo phosphorous poisoning vide post mortem report Exh. 29. Examination of the accused Ananda done by him around 12.05 p.m. on 2.4.2008 at Rural hospital Nate Pute revealed no injuries on the body of accused. Medical certificate Exh. 36-A issued by him in respect of the examination of the body of the accused further reveals absence of smegma on the glance of the accused. C.A. reports Exhs. 53 and 60 read together with the medical evidence, gives credence to the fact that the deceased Minakshi died as a result of ingestion of poisonous substance-organo phosphorous insecticide Phorate. C.A. reports Exhs. 51 and 52 show the absence of smegma in vaginal swab, urethroal swab and pubic hair collected from the body of the 9 cr-appln.5863-2010 deceased. Absence of vaginal fluid on the pubic hair of the accused is also revealed through the C.A. report Exh. 52. C.A. report Exh. 51 further reveals absence of blood in the nail clippings collected from the body of the deceased. Thus, there is complete absence of tale-tell signs of rape in the evidence collected as a result of forensic investigation. The learned trial Court was, therefore, justified in coming to the conclusion that the prosecution evidence did not substantiate the allegation of rape on the deceased Minakshi and as such, the so called dying declarations were not convincing. 12 In the scenario thus offered by the prosecution evidence, the learned trial Court was justified in rhetorically posing a question as aforesaid, and as such, there is much to be read between the lines which is sufficient to legitimately suspect the prosecution evidence. Leave is therefore, refused. The application stands disposed off accordingly. (U. D. SALVI,J.) (B. H. MARLAPALLE,J.)