Bombay High Court
The State Of Maharashtra vs Digamber S/O. Parshuram ... on 23 March, 2023
Bench: V. V. Kankanwadi, Y. G. Khobragade
910-ALS-63-2018.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
APPLN. FOR LEAVE TO APPEAL BY STATE NO.63 OF 2018
The State of Maharashtra ... Applicant
Versus
1) Digamber s/o Parshuram Kharatmol
2) Mandabai w/o Parshuram Kharatmol ... Respondents
....
Mr. A. M. Phule, APP for applicant - State
....
CORAM : SMT. VIBHA KANKANWADI AND
Y. G. KHOBRAGADE, JJ.
DATE : 23.03.2023.
PER COURT :-
The present application has been filed under Section
378 (1)(b) of the Code of Criminal Procedure by the State seeking
leave to appeal to challenge the judgment and order dated
24.11.2017 passed by the learned Additional Sessions Judge,
Nilanga, District Latur in Sessions Case No.11/2014 thereby
acquitting the present respondents / original accused persons for
the offence punishable under Sections 302, 201, 203, 498-A read
with Section 34 of the Indian Penal Code.
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2. For the admission, we have heard the learned APP Mr. A.
M. Phule fot the State. We have also gone through the material which
was before the learned trial Judge.
3. The prosecution story in short was that the information
was given by respondent No.1 on 28.12.2013 stating that when he
was fetching water around 11.00 a.m., his wife deceased Pallavi was
preparing food on stove. However, due to bursting of stove, her saree
caught fire and she died due to the burn injuries. He had tried to
extinguish the fire by putting quilt upon her, but before that she had
already died on the spot. The said information was considered under
Section 174 of the Code of Criminal Procedure as accidental death
report and further inquiry was started. The inquest panchanama was
executed and the dead body was sent for postmortem. Spot
panchanama was executed. The provisional cause of death was given
by the Medical Officers who conducted autopsy and they had opined
that the death is not due to burn injuries, but it is due to Cardio
Respiratory Arrest due to Asphyxia due to Compression of Neck
Structures (Throttling). Thereafter the Police Station Officer lodged
the FIR and it appears to be only against the husband and therefore
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offence under Section 302, 201, 203 of the Indian Penal Code came to
be registered against him.
4. Statements of witnesses were recorded and it transpired
that accused Nos. 1 and 2 both used to harass / ill-treat deceased
Pallavi and therefore offence under Section 498-A of the Indian Penal
Code came to be added later on. After completion of the
investigation, the charge-sheet was filed.
5. After commital of the case, charge was framed and then
trial was conducted. Prosecution has examined in all six witnesses in
order to bring home the guilt of the accused.
6. After considering the evidence on record and hearing
both sides, the learned trial judge has acquitted both the accused
persons from the offence charged. Hence this application for leave to
appeal.
7. Important point here to be noted is that the postmortem
report and the testimony of PW-3 Dr. Sawant, who had conducted the
autopsy, shows that the external and internal injuries those were
noted at the time of postmortem has led to the conclusion that it is
the case of throttling and according to the Medical Officer, Pallavi had
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sustained 46% burns and he has also opined that the throttling is
antemortem and burn injuries are after the death. He has been
extensively cross examined. However, the learned trial Judge while
considering the testimony of the Medical Officer appears to have not
discussed the point properly as to how the death is not homicidal in
nature and it is argued by the learned APP that the trial Judge got
carried away with the report, the husband had given at Exh.35 which
was treated under Section 174 of the Code of Criminal Procedure.
Definitely this aspect deserves to be looked into and considering the
said fact it is also required to be considered that if the death was
caused due to throttling, then the burn injuries could be for the
purpose of screening himself, and therefore, Section 201 and 203 of
I.P.C. are required to be considered here.
8. No doubt, the prosecution has not examined the
neighbors, but whether non examination of the neighbours would
have been fatal is required to be considered, so also the prosecution
story is required to be considered.
9. The prosecution has examined PW-1 Balaji who is the
uncle of deceased, PW-4 Parubai, mother of the deceased, PW-5
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Ranjit, cousin brother of the deceased and all of them have stated
about illegal demand by accused No.1 and even giving amount of
Rs.60,000/- by PW-4 Parubai to accused No.1 and thereafter he had
gone to Dubai and returned to India about 5 to 10 days earlier to the
incident. It can be seen that though it is stated that even the original
accused No.2 the mother-in-law had made a demand and illtreated
the deceased, the acts of illtreatment by the mother-in-law have not
been stated and therefore we are of the opinion that there was no
evidence against the original accused No.2. However, as regards the
accused No.1 is concerned the evidence that has been led by the
prosecution deserves to be considered and therefore the case is made
out to grant leave to appeal to challenge the acquittal of the
respondent No.1 only.
10. For the above stated reason, following order is passed.
ORDER
(i) The application stands partly allowed i.e. only against original
accused No.1 - present respondent No.1. The prosecution is
permitted to file appeal to challenge the acquittal of accused
No.1.
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(ii) The application stands rejected in respect of respondent No.2.
(iii) Leave is granted to the prosecution to file Appeal against
respondent No.1.
(iv) Registry to register the Appeal.
(v) Appeal stands admitted.
(vi) Issue notice to respondent No.1 made returnable on
06.06.2023.
(vii) Call record and proceedings with paper-book.
(viii) Compliance under Section 390 of Code of Criminal Procedure
be got done to the satisfaction of the learned trial Judge.
[ Y. G. KHOBRAGADE, J. ] [ SMT. VIBHA KANKANWADI, J. ]
SMS
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