Miss Sonal Rohidas Gote vs Atul Suresh Javalkar And Anr
2016 Latest Caselaw 1897 Bom

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    sas
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                              
                           CRIMINAL APPELLATE JURISDICTION

                            CRIMINAL APPEAL NO.627 OF 2015




                                                      
          Ms. Sonal Rohidas Gote,
          Age: 18 years, Occu: Education,




                                                     
          Residing at Kondhava Khurd,
          Maruti Ali, Swapnapurti Building,
          Pune.                                                     ..Applicant.




                                             
                          V/s.      
          1.      Atul Suresh Javalkar,
                                   
                  Age 26 years, Occu: Nil,
                  Residing at 57/7, More Chawl
                  Near Ganpati Temple,
                  Khondhava Khurd, Pune.
            
         



          2.      The State of Maharashtra
                  through Kondva police station,
                  Pune City.                                ..Respondents.





          Mr.Avinash B. Patil for the applicant.

          None for respondent No.1.





          Mrs.M.M. Deshmukh, APP for the respondent-State.



                          CORAM : NARESH H.PATIL AND A.M.BADAR, JJ.

                           RESERVED ON           :   16TH APRIL, 2016

                          PRONOUNCED ON :            27TH APRIL, 2016

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    JUDGMENT (PER A.M. BADAR, J.)

1. This application is filed by informant Sonal Rohidas

Gote seeking leave to challenge the judgment and order

dated 10th March, 2015 passed by the learned Additional

Sessions Judge, Pune in Sessions Case No.542/2014 thereby

acquitting respondent No.1 / accused of the offences

punishable under sections 307, 328, 506 (1) of the Indian

Penal Code.

2. Brief facts leading to the institution of the present

application can be summarized thus:-

(a) According to the prosecution case, as reflected

from the F.I.R. lodged by the applicant / informant Sonal,

respondent No.1 / accused Atul is her neighbour and they

were having love affair. Informant Sonal and accused Atul

were meeting regularly. Fifteen days prior to the alleged

incident, accused Atul questioned the informant Sonal by

alleging that she has an affair with a boy named Kishore

Nikam. According to the prosecution case on 17 th February,

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2014, accused Atul met informant Sonal near her college and

informed her that because of informant Sonal, his image is

maligned and, therefore, they both should commit suicide.

Thereafter, on 18th February, 2014 at about 8.00 p.m. after

finishing her tuition class, informant Sonal gave a miss-call to

the accused. Accused then called her and informed her to

meet at the parking slot of cable office of Sainath Babar.

Accordingly, informant Sonal met accused Atul at that place.

According to the prosecution case, the accused then showed a

bottle of insecticide to informant Sonal and threatened her if

she refused to consume that insecticide, he will kill her. Then

accused forcibly administered poison to informant Sonal.

(b) According to the prosecution case, after the

consumption of insecticide, informant Sonal went to her house

and started studying on the third floor of her house. After

fifteen to twenty minutes, she started vomiting. Then, her

parents took her to Satyananda Hospital, Pune. Subsequently,

she was admitted to Inamdar Hospital, Pune and thereafter to

the K.E.M. Hospital, Pune. She was discharged on 4 th March,

2014 and then on 5th March, 2014 applicant Sonal lodged

report against the accused resulting in registration of offence

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punishable under section 307, 328, 506(1) against him. On

completion of investigation, the charge-sheet came to be filed

against the accused and ultimately after trial, he came to be

acquitted by the impugned judgment and order by the learned

Additional Sessions Judge, Pune.

4. Heard the learned counsel appearing for applicant /

informant Sonal. He vehemently argued that the learned trial

Court has failed to consider the evidence of parents of

informant Sonal. He further argued that there is a perverse

appreciation of evidence on record by the learned trial Court.

According to the learned counsel for the applicant, evidence of

PW4 Thakkar - shop-keeper, goes to show that the accused

had purchased the insecticide and the evidence of informant

PW3 Sonal shows that the accused had administered that

insecticide to her forcibly. The learned counsel for the

applicant further argued that medical evidence on record goes

to show that informant Sonal was admitted in several

hospitals for treatment for poison. Evidence of informant

Sonal is further corroborated by evidence of her parents.

Hence, according to the learned counsel for the applicant, the

prosecution has proved the motive so also the preparation by

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the accused and ultimately the commission of offence by the

accused.

5. We have heard the learned APP for the State.

6. With the assistance of the learned counsel

appearing for the parties, we have carefully perused the

evidence adduced by the prosecution in support of the charge

for the offences punishable under section 307, 328, 506(1) of

the Indian Penal Code levelled against the accused. We have

also perused the impugned judgment and order of acquittal of

the accused.

7. At the outset, the parameters for exercising the

jurisdiction of this Court in dealing with an appeal against

acquittal needs to be placed on record. In the matter of

State of UP. V/s. Babu & Ors., it is observed by the Hon'ble

Supreme Court as under:-

"10. Recently in State of Punjab V/s. Karnial Singh (2003

AIR SCW 4065) it was observed that there is no embargo

on the Appellate Court reviewing the evidence upon 1 2013 All MR 2356 (SC.)

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which an order of acquittal is based. Generally, the order

of acquittal shall not be interfered with because the

presumption of innocence of the accused is further

strengthened by acquittal. The golden thread which runs

through the web of administration of justice in criminal

cases is that if two views are possible on the evidence

adduced in the case, one pointing to the guilt of the

accused and the other to his innocence, the view which

is favourable to the accused should be adopted. The

paramount consideration of the Court is to ensure that

miscarriage of justice is prevented. A miscarriage of

justice which may arise from acquittal of the guilty is no

less than from the conviction of an innocent. In a case

where admissible evidence is ignored, a duty is cast

upon the Appellate Court to re-appreciate the evidence

even where the accused has been acquitted, for the

purpose of ascertaining as to whether any of the

accused committed any offence or not. [See Bhagwan

Singh and others v. State of Madhya Pradesh (2002 (3) JT

(SC) 387) : [2003 All MR (Cri) 564 (S.C)]. The principle to

be followed by appellate Court considering the appeal

against the judgment of acquittal is to interfere only

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when there are compelling and substantial reasons for

doing so. If the impugned judgment is clearly

unreasonable, it is a compelling reason for interference.

These aspects were highlighted by this Court in Shivaji

Sahabrao Bobade and another V/s. State of Maharashtra

(1973 (2) SCC 793), Ramesh Babulal Doshi V/s. State of

Gujarat (1996 (9) SCC 225) and Jaswant Singh V/s. State

of Haryana (2000 (4) JT (SC) 114)."

8.

Now, let us consider whether there are compelling

and substantial reasons for interfering with the order of

acquittal and whether the admissible evidence is ignored by

the learned trial Court by adopting perverse approach. We will

also have to consider whether the view expressed by the

learned trial Court is a probable view based on appreciation of

evidence in the instant case.

9. In order to bring home the guilt to the accused, the

prosecution has examined as many as 11 witnesses including

informant Sonal, her parents, shop-keeper, doctors who had

treated the informant Sonal and the Investigating Officer. It is

seen from the evidence on record that the alleged incident

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took place on 18th February, 2014 in the parking Slot of cable

office of Sainath Babar at Pune. The evidence on record shows

that parents of informant Sonal namely Rohidas Gote (PW1)

and Jyoti Gote (PW2) had immediately taken her to

Satyananda Hospital, Pune. From there, informant Sonal was

shifted to Inamdar Multi Speciality Hospital, Pune on the very

same day. She was then taken to K.E.M. Hospital, Pune.

Evidence on record shows that on 19th February, 2014 at

Satyananda Hospital, history in respect of admission of

informant Sonal is shown as consumption of insecticide. It is

pertinent to note that evidence on record particularly coming

from the mouth of Dr.Munaf Inamdar (PW5) of the Inamdar

Hospital goes to show that apart from informant Sonal Gote,

accused Atul Jawalkar was also admitted to that hospital on

18th February, 2014 as a case of poisoning. As seen from the

evidence of Dr.Tushar Kate (PW6) earlier accused Atul was

initially admitted in Satyananda Hospital, Pune with history of

consumption of poison. Thereafter, as seen from the evidence

of Dr.Tushar Kate (PW6), informant Sonal Gote was brought to

the said Satyananda hospital as a case of poisoning.

Dr.Deepak Kolhekar (PW8) of Inamdar Hospital has also

vouched that both the informant as well as the accused were

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brought to Inamdar Hospital by their relatives on 18 th

February, 2014 as case of poisoning and their relatives stated

that they had consumed medicine. Thus, the evidence on

record unerringly points out that both i.e. the applicant as well

as the accused had suffered from consumption of poison on

18th February, 2014 at about the same point of time and they

were brought to Satyananda Hospital simultaneously.

10. Now, let us examine whether it was the accused

who administered the poison to informant Sonal forcibly. As

seen from evidence of PW1 Rohidas (father of informant

Sonal) and PW2 Jyoti (mother of informant Sonal) that on 18 th

February, 2014, at Satyananda Hospital itself where informant

P.W3 Sonal was taken for treatment initially, she had disclosed

that the accused had administered poison to her. Similar is

the version of informant PW3 Sonal. This evidence, as such

indicates that soon after the incident PW1 Rohidas and PW2

Jyoti were aware that it was accused Atul Javalkar who had

administered the poison to their daughter. If really the

accused had administered the poison to their daughter, in

normal course, PW1 Rohidas and PW2 Jyoti ought to have

reported the matter to the police. This did not happen. On the

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contrary, it is seen from the evidence on record that though

police had visited the hospital where the informant PW3 Sonal

was taking treatment, no report against the accused was filed

soon after the incident or rather upto 5th March, 2014.

11. Though alleged incident in question happened on

18th February, 2014, the F.I.R. in respect of the same came to

be filed on 5th March, 2014 by informant Sonal. The

explanation which is sought to be given for this belated F.I.R.

is that till 4th March, 2014, informant Sonal was admitted in

the hospital. However, it is seen from the evidence of the

prosecution that her parents were allegedly aware of the

incident in question and as such, they could have filed the

F.I.R. against the accused. This inordinate delay in lodging the

F.I.R. makes the prosecution case suspect. The possibility of

adding embellishments to the prosecution case for implicating

the accused as such, cannot be ruled out. This is particularly

so because the history of admission of PW3 Sonal is recorded

in the Satyananda Hospital as case of consumption of

medicine. Evidence of Dr.Tushar Kate (PW6) of Satyananda

Hospital do show that PW3 Sonal was admitted there as a

case of poisoning and history is shown as consumption of

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some poison. Even from the cross-examination of Dr.Deepak

Kolekar (PW8) of Inamdar Hospital, it is brought on record that

relatives of PW3 Sonal have stated the history that she had

consumed some medicine meaning thereby some poison. On

the backdrop of this evidence, the learned Additional Sessions

Judge took a view that the case of the prosecution regarding

forcible administration of poison to PW3 Sonal by the accused

is not free from doubt. Such view is certainly a probable view

based on the evidence on record.

12. The learned trial Court has considered that the

complaint lodged by PW3 Sonal to the Commissioner of Police,

Pune does not disclose that accused Atul forcibly administered

poison to PW3 Sonal. The evidence on record as discussed in

the foregoing paras do show that both the informant as well

as the accused were deeply in love and it was PW3 Sonal who

had given a miss-call prior to the incident and then thereafter

they met at the parking slot of the cable office where the

incident happened. This conduct of the informant / PW3 Sonal

was also considered by the trial Court to doubt the

prosecution case of forcible administration of poison.

Testimony of informant Sonal shows that even though she

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alleged that the accused administered poison to her forcibly in

the parking slot of the cable office, her subsequent conduct

raises doubt on her version. Her evidence shows that she

went to her house and started studying at the third floor

without making any complaint about the incident to her

parents. She did not make any hue and cry for taking her to

hospital. Considering the evidence on record, it cannot be said

that the learned trial Court has come to erroneous conclusion.

13.

If really the accused had administered organo

phosphorous poison to informant PW3 Sonal forcibly, then her

clothes should have been stained with such poison. The

evidence on record shows that after consumption of poison,

PW3 Sonal had been to her house and started studying in the

room situated at the third floor. At that point of time, she had

not disclosed the alleged incident to her parents though they

were available. She never asked for their help. Thereafter,

she was admitted to the hospital. Her clothes were not seized

by the police in order to find out whether they were having

traces of poison on them. The theory of forcible administration

of poison by the accused could have gained some

corroboration if the clothes of informant Sonal were seized by

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police and if such seized clothes were subjected to chemical

analysis. This did not happen. As such, it cannot be said that

the prosecution has proved the guilt of the accused for the

alleged offence beyond reasonable doubt. Therefore, no fault

can be found with the impugned judgment and order giving

benefit of doubt to the accused and acquitting him of the

alleged offence. The view taken by the learned Additional

Sessions Judge is a probable view based on the evidence on

record and there are no compelling reasons to interfere with

the same. Hence the order:-

(i) The application for leave to appeal is rejected.

             (A.M. BADAR, J.)                  (NARESH H.PATIL, J.)