Full Judgment Text
Sherla V.
5_APEAL.173.2003 (J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE
CRIMINAL APPEAL NO.173 OF 2003
State of Maharashtra … Appellant
Vs.
1. Pandurang Malhari Kagale
2. Malhari Sakharam Kagale
(Appeal abated against Resp. No.2)
3. Krishnabai Malhari Kagale
4. Sau. Shakuntala Babu Lamdade
… Respondents
all residents of Miraj, Taluka Miraj, District
Sangli
Mr.V.B. Konde-Deshmukh, APP, for the Appellant – State
None for Respondent Nos.1, 3 & 4
CORAM: S.S. SHINDE &
SANDIPKUMAR C. MORE, JJ.
JUDGEMENT RESERVED ON: OCTOBER 22, 2021
JUDGEMENT DELIVERED ON: DECEMBER 17, 2021
JUDGEMENT (PER S.S. SHINDE, J.):
1. This Criminal Appeal is preferred by the State of
Maharashtra challenging the judgement and order dated
th
7 September, 2002 in Sessions Case No.49 of 1999 passed by
the learned II Adhoc Additional Sessions Judge, Sangli at Sangli,
whereby the respondents – accused were acquitted of the charges
under sections 498A, 304B read with section 34 of the Indian
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Penal Code.
2. The prosecution case in brief is as under:
The complainant, namely, Kasappa Mali, is the father of the
deceased–Rukmini. Accused No.1 – Pandurang was the husband
of Rukmini. Accused No.2, who has expired, was the father of
accused No.2. Accused No.3 is the mother of accused No.1 and
accused No.4 is the sister of accused No.1. Rukmini died on
18.12.1998, after four years of her marriage with accused No.1.
It is the case of the prosecution that, about six months after
the marriage, the accused started ill treating the deceased on the
grounds that she was unable to cook properly and also that her
conduct was not good. They used to beat the deceased on said
counts. They used to torture the deceased by asking her to bring
money and gold from her parents. These facts were narrated by
the deceased to her father as well as her uncle, namely, Mhalsab,
whenever she used to meet them at Sangli. The complainant as
also his brother tried to pursue the accused not to ill treat the
deceased but the ill treatment continued. Therefore, the brother of
the deceased took her to their parents’
house at Thane. Thereafter, pursuant to the requests
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and intervention of the relatives of the accused that the accused
will not ill treat the deceased, the complainant and his brother sent
the deceased back to the accused. At that time, the accused had
also addressed a letter to the Police Inspector, City Police Station,
Miraj, stating that they will not ill treat the deceased. Thereafter,
th
on 18 December, 1998, the complainant got information that
Rukmini had died. On these allegations, a complaint was lodged
against the accused with Miraj City Police Station, Miraj bearing
C.R. No.241 of 1998. During the course of investigation, the
accused came to be arrested and on completion of investigation,
chargesheet came to be filed against them before the learned
JMFC, Miraj. The case was then committed to Court of Sessions,
Miraj, who after framing the charge and completion of trial,
acquitted all the accused under sections 498A, 304B read with
section 34 of the Indian Penal Code. Hence, this Appeal.
3. At the outset, it needs to be mentioned that the Appeal has
already abated against Respondent No.2 – Malhari Sakharam
st
Kagale, vide order dated 21 January, 2020.
4. Mr.V.B. Konde-Deshmukh, the learned APP appearing for
the Appellant – State, has assailed the impugned judgment and
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order of the learned Sessions Judge on the following grounds. He
submitted that the death of Rukmini occurred within 7 years from
the date of marriage. Therefore, presumption under section 113-B
of the Indian Evidence Act would arise. The prosecution witnesses
while deposing before the Court have made categorical statement
that the respondents herein used to harass and give ill treatment
to Rukmini. They have also stated that there was unlawful demand
from the accused. Since Rukmini died in the house of the
accused, the accused were obliged to give explanation since the
facts about the death of Rukmini was within the special knowledge
of the accused.
5. Although Vakalatnama for Respondents is filed by advocate
Ashok J. Chaugule, the learned Counsel is absent.
6. We have given due consideration to the rival submissions,
with the able assistance of the learned APP appearing for the
Appellant. Perused the notes of evidence and also the other
material placed on record. The trial Court framed the charge
against the respondents. The first charge was that the
respondents in furtherance of their common intention subjected
Rukmini physically and mentally on the count that her behaviour
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was not proper, she could not work properly in the house and did
not meet the demand of the accused to bring 1 tola gold from her
maternal house. Due to harassment and cruelty on the part of the
respondents, Rukmini died. The respondents have committed an
offence punishable under section 498A read with section 34 of the
Indian Penal Code.
7. The second charge was that on 18.12.1998 at or about
1900 hrs, at Miraj, the death of Rukmini had occurred otherwise
than under normal circumstances within 7 years of her marriage.
She was subjected to mental and physical cruelty and harassment
by the accused in connection with the demand of 1 tola golden
ornaments from her parents and on other counts and thereby the
respondents have committed offence punishable under section
304B read with section 34 of the Indian Penal Code.
8. In order to appreciate the allegation of harassment and ill-
treatment of Rukmini by the respondents on account of not
performing domestic work and bringing golden ornaments as
alleged by the prosecution witnesses, it would be appropriate to
discuss the evidence of the prosecution witnesses.
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9. The prosecution had examined Kasappa Mali as PW1, who
is the father of the deceased Rukmini. In his deposition before the
Court, he stated that he has six daughters and Rukmini was elder
and got married to accused No.1. Initially, for six months, the
accused treated her properly, however, thereafter, they started
harassing and giving ill treatment to her. On her failure to fulfill
their unlawful demands to bring gold (Bormal) weighing 1 tola, the
accused persons used to ask her to give divorce to Respondent
No.1. This witness has, in detail, stated about the alleged
harassment and ill treatment given to Rukmini by the respondents.
He stated in his examination-in-chief that after some days of
marriage and when Rukmini left the matrimonial house and stayed
at Thane with the brother of PW1, the accused persons wrote one
letter expressing regret and requesting to send back Rukmini to
matrimonial home with assurance that they will treat the daughter
of PW1 properly. He further stated that his daughter Rukmini died
on 18.12.1998 at Miraj in Government hospital. One Ganpatrao
Mali intimated his brother at Jat about the death of his daughter
and he came to know about it from his brother. It is alleged by him
that he met accused No.1 on way to Sangli and accused No.1 told
him that his daughter died due to fever. He further stated that on
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receiving the dead body of his daughter on 19.12.1998 at about
12pm to 1 pm, he registered the First Information Report with the
concerned police station.
10. It is important to note that during the cross-examination, a
suggestion was given to this witness by the defence Counsel that
he (PW1) used to visit Rukmini for supplying her medicines since
she was suffering from some mental ailment and was being
treated for her mental weakness. Further suggestion was given
that PW1 took Rukmini to school of mentally retarded persons at
Miraj. This suggestion was denied by PW1. He also denied the
suggestion that his brother took Rukmini to Thane for referring her
to mental hospital at Thane. He admitted that his daughter stayed
at Thane for four months and then, came back to Miraj.
11. The prosecution examined one Shankar Dhondiba Lamdade
as PW2. In his deposition before the Court, PW2 stated that
accused No.1 and the deceased Rukmini pulled down marital life
properly for about 1 to 2 years and thereafter, disputes started
between accused Nos.1 and 3 and Rukmini on account of cooking
that she was not cooking well. The accused used to beat Rukmini
on that count. In his deposition, he has not stated about unlawful
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demand of 1 tola gold by the accused persons from Rukmini. He
stated that he scribed a letter to the uncle of Rukmini at Thane
which was received from accused No.2. He further stated that the
letter was scribed by Pandu, son of accused No.2 and after
receiving the said letter and due deliberations with PW1, Rukmini
was brought to the house of the accused by her father.
During his cross-examination, PW2 stated that Rukmini was
strongly built, however, she was mentally weak. He further stated
that it is true to say that Rukmini was taking treatment at her
matrimonial house as well as at the house of the accused but he
did not know her ailment.
It can thus safely be gathered from the evidence of PW2 that
the alleged ill treatment and harassment of Rukmini started at the
hands of the accused after 1 to 2 years from the date of marriage
and Rukmini was suffering from some mental weakness and for
that, at the relevant time, she was being treated at Miraj. It has
also come in the evidence of PW2 that the said alleged letter was
signed by him. At this stage, it is relevant to mention that the
prosecution failed to bring on record cogent evidence to show that
the said alleged letter was written by the accused.
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12. The prosecution examined Mahadevi Mahadeo Yesu Mali as
PW3. It appears that the deceased Rukmini was residing in her
neighbourhood. She stated that the accused treated Rukmini
properly for six months and on account of her non-performance of
work in the house so also in the field, the accused started ill
treating her. She tried to intervene in the dispute, however, she
could not succeed to resolve the dispute. She stated that Rukmini
went to reside with her uncle at Thane. A suggestion was given to
her in cross-examination that on account of some dispute between
the family of the accused and her family, she had deposed against
the accused. This has been denied by her, however, the fact
remains that she stated about visit of Rukmini to Thane.
13. The prosecution examined Ganapati Appa Mali as PW4. His
evidence is hearsay inasmuch as he stated that his son-in-law
used to tell him about the ill-treatment to Rukmini by the accused.
The evidence of PW4 is not important for the prosecution case.
14. The prosecution examined Dr.Deepak Shankar Amale, who
had performed postmortem on the dead body of Rukmini. He
stated that after studying the reports, they formed final opinion as
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to the cause of death and in their opinion, the death has been
caused due to poisoning due to Organo Phosphorous compound
insecticide “Dimetheate (Rogor)”.
However, in his cross-examination, PW5 stated that the
probable time and death is not mentioned in the postmortem report
(exhibit 34).
From his entire evidence, it is not clear that as to when the
death of Rukmini had occurred and he has not stated any injury
mark on Rukmini which would suggest overt acts on the part of the
accused.
15. PW7 Subhash Babu Kadam was the Investigating Officer,
who had stated in detail about the manner in which the
investigation was carried out.
16. If the evidence of the prosecution witnesses is considered in
its entirety, firstly, they are not consistent on the beginning point of
the alleged harassment or ill-treatment to Rukmini at the hands of
the respondents – accused. Secondly, it is deposed by PW2 that
Rukmini was being treated for mental illness, however, the other
witnesses are not consistent. There is a reasonable delay in
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lodging the First Information Report which remains to be
unexplained by the prosecution. If the entire prosecution case is
viewed in the light of the evidence collected, it is difficult to
understand as to why accused No.4 Shakuntala Babu Lamdade
was added as an accused. At the relevant time, accused No.4
was already married and there was no any material to suggest any
overt act on behalf of accused No.4. We have carefully perused
the finding recorded by the trial Court. In our opinion, the
prosecution has utterly failed to bring on record positive acts on
the part of the accused within the proximate time and date of death
of Rukmini indicating their involvement in the alleged harassment
and ill treatment to Rukmini on account of non-fulfillment of
unlawful demand so as to attract the ingredients of sections 304B
and 306 of the Indian Penal Code. In that view of the matter, the
question of presumption under section 113B of the Evidence Act
would not arise. The prosecution was obliged to show specific
acts on behalf of the accused within the proximate date and time
of the alleged incident which would suggest the involvement of the
respondent accused. On the contrary, the prosecution witnesses,
in particular, PW2 had stated that Rukmini was suffering from
mental weakness. Therefore, the reasonable inference that can
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be drawn is that she might have consumed poison on her own. In
our considered view, the findings recorded by the trial Court are
not perverse and those are in consonance with the evidence
brought on record. The view taken by the trial Court is a plausible
view in the light of the evidence brought on record. Even if
another view is possible, is no ground to interfere in the order of
acquittal. Hence, no case is made out to interfere with the finding
of acquittal.
17. For the reasons aforesaid, we are unable to persuade
ourselves to reverse the findings of acquittal and allow the appeal.
As a corollary, the Appeal shall fail and accordingly, the same
stands dismissed.
(SANDIPKUMAR C. MORE, J.) (S.S. SHINDE, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE
CRIMINAL APPEAL NO.173 OF 2003
State of Maharashtra … Appellant
Vs.
1. Pandurang Malhari Kagale
2. Malhari Sakharam Kagale
(Appeal abated against Resp. No.2)
3. Krishnabai Malhari Kagale
4. Sau. Shakuntala Babu Lamdade
… Respondents
all residents of Miraj, Taluka Miraj, District
Sangli
Mr.V.B. Konde-Deshmukh, APP, for the Appellant – State
None for Respondent Nos.1, 3 & 4
CORAM: S.S. SHINDE &
SANDIPKUMAR C. MORE, JJ.
JUDGEMENT RESERVED ON: OCTOBER 22, 2021
JUDGEMENT DELIVERED ON: DECEMBER 17, 2021
JUDGEMENT (PER S.S. SHINDE, J.):
1. This Criminal Appeal is preferred by the State of
Maharashtra challenging the judgement and order dated
th
7 September, 2002 in Sessions Case No.49 of 1999 passed by
the learned II Adhoc Additional Sessions Judge, Sangli at Sangli,
whereby the respondents – accused were acquitted of the charges
under sections 498A, 304B read with section 34 of the Indian
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Penal Code.
2. The prosecution case in brief is as under:
The complainant, namely, Kasappa Mali, is the father of the
deceased–Rukmini. Accused No.1 – Pandurang was the husband
of Rukmini. Accused No.2, who has expired, was the father of
accused No.2. Accused No.3 is the mother of accused No.1 and
accused No.4 is the sister of accused No.1. Rukmini died on
18.12.1998, after four years of her marriage with accused No.1.
It is the case of the prosecution that, about six months after
the marriage, the accused started ill treating the deceased on the
grounds that she was unable to cook properly and also that her
conduct was not good. They used to beat the deceased on said
counts. They used to torture the deceased by asking her to bring
money and gold from her parents. These facts were narrated by
the deceased to her father as well as her uncle, namely, Mhalsab,
whenever she used to meet them at Sangli. The complainant as
also his brother tried to pursue the accused not to ill treat the
deceased but the ill treatment continued. Therefore, the brother of
the deceased took her to their parents’
house at Thane. Thereafter, pursuant to the requests
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and intervention of the relatives of the accused that the accused
will not ill treat the deceased, the complainant and his brother sent
the deceased back to the accused. At that time, the accused had
also addressed a letter to the Police Inspector, City Police Station,
Miraj, stating that they will not ill treat the deceased. Thereafter,
th
on 18 December, 1998, the complainant got information that
Rukmini had died. On these allegations, a complaint was lodged
against the accused with Miraj City Police Station, Miraj bearing
C.R. No.241 of 1998. During the course of investigation, the
accused came to be arrested and on completion of investigation,
chargesheet came to be filed against them before the learned
JMFC, Miraj. The case was then committed to Court of Sessions,
Miraj, who after framing the charge and completion of trial,
acquitted all the accused under sections 498A, 304B read with
section 34 of the Indian Penal Code. Hence, this Appeal.
3. At the outset, it needs to be mentioned that the Appeal has
already abated against Respondent No.2 – Malhari Sakharam
st
Kagale, vide order dated 21 January, 2020.
4. Mr.V.B. Konde-Deshmukh, the learned APP appearing for
the Appellant – State, has assailed the impugned judgment and
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order of the learned Sessions Judge on the following grounds. He
submitted that the death of Rukmini occurred within 7 years from
the date of marriage. Therefore, presumption under section 113-B
of the Indian Evidence Act would arise. The prosecution witnesses
while deposing before the Court have made categorical statement
that the respondents herein used to harass and give ill treatment
to Rukmini. They have also stated that there was unlawful demand
from the accused. Since Rukmini died in the house of the
accused, the accused were obliged to give explanation since the
facts about the death of Rukmini was within the special knowledge
of the accused.
5. Although Vakalatnama for Respondents is filed by advocate
Ashok J. Chaugule, the learned Counsel is absent.
6. We have given due consideration to the rival submissions,
with the able assistance of the learned APP appearing for the
Appellant. Perused the notes of evidence and also the other
material placed on record. The trial Court framed the charge
against the respondents. The first charge was that the
respondents in furtherance of their common intention subjected
Rukmini physically and mentally on the count that her behaviour
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was not proper, she could not work properly in the house and did
not meet the demand of the accused to bring 1 tola gold from her
maternal house. Due to harassment and cruelty on the part of the
respondents, Rukmini died. The respondents have committed an
offence punishable under section 498A read with section 34 of the
Indian Penal Code.
7. The second charge was that on 18.12.1998 at or about
1900 hrs, at Miraj, the death of Rukmini had occurred otherwise
than under normal circumstances within 7 years of her marriage.
She was subjected to mental and physical cruelty and harassment
by the accused in connection with the demand of 1 tola golden
ornaments from her parents and on other counts and thereby the
respondents have committed offence punishable under section
304B read with section 34 of the Indian Penal Code.
8. In order to appreciate the allegation of harassment and ill-
treatment of Rukmini by the respondents on account of not
performing domestic work and bringing golden ornaments as
alleged by the prosecution witnesses, it would be appropriate to
discuss the evidence of the prosecution witnesses.
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9. The prosecution had examined Kasappa Mali as PW1, who
is the father of the deceased Rukmini. In his deposition before the
Court, he stated that he has six daughters and Rukmini was elder
and got married to accused No.1. Initially, for six months, the
accused treated her properly, however, thereafter, they started
harassing and giving ill treatment to her. On her failure to fulfill
their unlawful demands to bring gold (Bormal) weighing 1 tola, the
accused persons used to ask her to give divorce to Respondent
No.1. This witness has, in detail, stated about the alleged
harassment and ill treatment given to Rukmini by the respondents.
He stated in his examination-in-chief that after some days of
marriage and when Rukmini left the matrimonial house and stayed
at Thane with the brother of PW1, the accused persons wrote one
letter expressing regret and requesting to send back Rukmini to
matrimonial home with assurance that they will treat the daughter
of PW1 properly. He further stated that his daughter Rukmini died
on 18.12.1998 at Miraj in Government hospital. One Ganpatrao
Mali intimated his brother at Jat about the death of his daughter
and he came to know about it from his brother. It is alleged by him
that he met accused No.1 on way to Sangli and accused No.1 told
him that his daughter died due to fever. He further stated that on
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receiving the dead body of his daughter on 19.12.1998 at about
12pm to 1 pm, he registered the First Information Report with the
concerned police station.
10. It is important to note that during the cross-examination, a
suggestion was given to this witness by the defence Counsel that
he (PW1) used to visit Rukmini for supplying her medicines since
she was suffering from some mental ailment and was being
treated for her mental weakness. Further suggestion was given
that PW1 took Rukmini to school of mentally retarded persons at
Miraj. This suggestion was denied by PW1. He also denied the
suggestion that his brother took Rukmini to Thane for referring her
to mental hospital at Thane. He admitted that his daughter stayed
at Thane for four months and then, came back to Miraj.
11. The prosecution examined one Shankar Dhondiba Lamdade
as PW2. In his deposition before the Court, PW2 stated that
accused No.1 and the deceased Rukmini pulled down marital life
properly for about 1 to 2 years and thereafter, disputes started
between accused Nos.1 and 3 and Rukmini on account of cooking
that she was not cooking well. The accused used to beat Rukmini
on that count. In his deposition, he has not stated about unlawful
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demand of 1 tola gold by the accused persons from Rukmini. He
stated that he scribed a letter to the uncle of Rukmini at Thane
which was received from accused No.2. He further stated that the
letter was scribed by Pandu, son of accused No.2 and after
receiving the said letter and due deliberations with PW1, Rukmini
was brought to the house of the accused by her father.
During his cross-examination, PW2 stated that Rukmini was
strongly built, however, she was mentally weak. He further stated
that it is true to say that Rukmini was taking treatment at her
matrimonial house as well as at the house of the accused but he
did not know her ailment.
It can thus safely be gathered from the evidence of PW2 that
the alleged ill treatment and harassment of Rukmini started at the
hands of the accused after 1 to 2 years from the date of marriage
and Rukmini was suffering from some mental weakness and for
that, at the relevant time, she was being treated at Miraj. It has
also come in the evidence of PW2 that the said alleged letter was
signed by him. At this stage, it is relevant to mention that the
prosecution failed to bring on record cogent evidence to show that
the said alleged letter was written by the accused.
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12. The prosecution examined Mahadevi Mahadeo Yesu Mali as
PW3. It appears that the deceased Rukmini was residing in her
neighbourhood. She stated that the accused treated Rukmini
properly for six months and on account of her non-performance of
work in the house so also in the field, the accused started ill
treating her. She tried to intervene in the dispute, however, she
could not succeed to resolve the dispute. She stated that Rukmini
went to reside with her uncle at Thane. A suggestion was given to
her in cross-examination that on account of some dispute between
the family of the accused and her family, she had deposed against
the accused. This has been denied by her, however, the fact
remains that she stated about visit of Rukmini to Thane.
13. The prosecution examined Ganapati Appa Mali as PW4. His
evidence is hearsay inasmuch as he stated that his son-in-law
used to tell him about the ill-treatment to Rukmini by the accused.
The evidence of PW4 is not important for the prosecution case.
14. The prosecution examined Dr.Deepak Shankar Amale, who
had performed postmortem on the dead body of Rukmini. He
stated that after studying the reports, they formed final opinion as
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to the cause of death and in their opinion, the death has been
caused due to poisoning due to Organo Phosphorous compound
insecticide “Dimetheate (Rogor)”.
However, in his cross-examination, PW5 stated that the
probable time and death is not mentioned in the postmortem report
(exhibit 34).
From his entire evidence, it is not clear that as to when the
death of Rukmini had occurred and he has not stated any injury
mark on Rukmini which would suggest overt acts on the part of the
accused.
15. PW7 Subhash Babu Kadam was the Investigating Officer,
who had stated in detail about the manner in which the
investigation was carried out.
16. If the evidence of the prosecution witnesses is considered in
its entirety, firstly, they are not consistent on the beginning point of
the alleged harassment or ill-treatment to Rukmini at the hands of
the respondents – accused. Secondly, it is deposed by PW2 that
Rukmini was being treated for mental illness, however, the other
witnesses are not consistent. There is a reasonable delay in
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lodging the First Information Report which remains to be
unexplained by the prosecution. If the entire prosecution case is
viewed in the light of the evidence collected, it is difficult to
understand as to why accused No.4 Shakuntala Babu Lamdade
was added as an accused. At the relevant time, accused No.4
was already married and there was no any material to suggest any
overt act on behalf of accused No.4. We have carefully perused
the finding recorded by the trial Court. In our opinion, the
prosecution has utterly failed to bring on record positive acts on
the part of the accused within the proximate time and date of death
of Rukmini indicating their involvement in the alleged harassment
and ill treatment to Rukmini on account of non-fulfillment of
unlawful demand so as to attract the ingredients of sections 304B
and 306 of the Indian Penal Code. In that view of the matter, the
question of presumption under section 113B of the Evidence Act
would not arise. The prosecution was obliged to show specific
acts on behalf of the accused within the proximate date and time
of the alleged incident which would suggest the involvement of the
respondent accused. On the contrary, the prosecution witnesses,
in particular, PW2 had stated that Rukmini was suffering from
mental weakness. Therefore, the reasonable inference that can
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be drawn is that she might have consumed poison on her own. In
our considered view, the findings recorded by the trial Court are
not perverse and those are in consonance with the evidence
brought on record. The view taken by the trial Court is a plausible
view in the light of the evidence brought on record. Even if
another view is possible, is no ground to interfere in the order of
acquittal. Hence, no case is made out to interfere with the finding
of acquittal.
17. For the reasons aforesaid, we are unable to persuade
ourselves to reverse the findings of acquittal and allow the appeal.
As a corollary, the Appeal shall fail and accordingly, the same
stands dismissed.
(SANDIPKUMAR C. MORE, J.) (S.S. SHINDE, J.)
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