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The State Of Maharashtra vs Amol Dilip Gavali And Others on 11 April, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

APPLN FOR LEAVE TO APPEAL BY STATE NO. 143 OF 2018

THE STATE OF MAHARASHTRA
VERSUS
AMOL DILIP GAVALI AND OTHERS


APP for applicant -State – Mr. D.R. Kale
Advocate for respondents : Ms. P.J. Bharad
….
CORAM : K.K. SONAWANE, J.

DATED : 11th APRIL, 2019

Order :-

The applicant-State preferred the present application seeking

leave under Section 378(1)(b) of the Code of Criminal Procedure

(for short “Cr.P.C.) to present an appeal against the impugned

Judgment and order of acquittal of respondents-accused passed by

learned Additional Sessions Judge, Vaijapur, District Aurangabad, in

Sessions Case No. 01 of 2015, for the offence punishable under

Sections 498A, 306, 504 read with section 34 of the Indian Penal Code

(for short “IPC”).

2. According to prosecution, ill-fated victim Subhangi was married

with respondent No. 1-Amol Gavali on 25-11-2013. After marriage, she

joined the company of the husband for cohabitation at her matrimonial

home. Respondents/accused No. 2 and 4 are in-laws of the deceased

Subhangi whereas respondent No.3 was her brother-in-law. All residing

jointly at village New Kaigaon, Tq. Gangapur, District Aurangabad. It

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has been alleged that after the marriage, husband and other inmates of

matrimonial home initially for a period of four months behaved with her

in proper manner. But, thereafter, she was subjected to maltreatment

and cruelty. The husband used to abuse and beat her on account of

suspicion of her character. On the day of incident, there was quarrel in

between husband and deceased Subhangi. The husband raised

suspicion about her character and asked her not to cohabit with him.

The deceased was assaulted by husband. Fed – up with daily harangue,

the victim Subhangi took drastic step of self immolation. She poured

kerosene and set herself ablaze. Thereafter, she was taken to hospital

for medical treatment. The Police and Revenue Personnels attended

and recorded her dying declaration for cause of her burn. The victim

Subhangi divulged her ordeals and maltreatment at the hands of her

husband and inmates of her matrimonial home. She blamed the

respondents-accused for her burn injuries. The Police registered the

crime and carried out the investigation. After completion of

investigation, proceeding of Sessions Case No. 01 of 2015 came to be

initiated against respondents-accused.

3. In order to bring home guilt of the respondents-accused,

prosecution examined in all eleven witnesses in this case. Accused

denied the allegations and claimed their innocence. Learned trial Court

considered the oral and circumstantial evidence adduced on record and

exonerated the respondents-accused for the charges pitted against

them on the ground that prosecution failed to prove the factum of

cruelty and abetment of committing suicide by victim Subhangi.

Accordingly, learned learned trial Court passed the impugned Judgment

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3 933-ALS-143-18

and order, which is the subject-matter of present proceedings.

4. The prosecution is intending to prefer an appeal, therefore, the

application seeking leave to present an appeal under section 378(1)(b)

of the Cr.P.C. is preferred on behalf of applicant-prosecution.

5. Having given anxious consideration to the rival submissions

advanced on behalf of learned APP and learned counsel appearing for

respondents/accused, I find that reasonable opportunity is essential to

be granted to the applicant-prosecution to ventilate its grievance

before the appellate forum against the impugned findings of acquittal of

respondents-accused expressed by the learned trial Court. Definitely,

it would sub-serve the purpose for awarding substantial justice. It is

not in dispute that the victim Subhangi was married with respondent

No. 1 Amol, on 25-11-2013 and within a span of six to seven months of

her matrimonial life, present incident of burning of victim Subhangi

occurred at her matrimonial home. Unfortunately, the victim Subhangi

received serious burn injuries and while medical treatment she

succumbed to it. In the matter in hand, prosecution adduced evidence

of PW 1 – Bharat Pandav, PW 2-Ranjana Bharat Pandav, PW 3 –

Chandrakant Pandhav and PW 4 – Yamaji Ramnath Javade, all are

relatives of the victim Subhangi. The prosecution also examined P.W.

5- Bhausaheb Thorat, Tahsildar, who has recorded dying declaration of

deceased in the hospital. P.W.10-Balajising Thakur, Investigating

Officer, reduced into writing the statement of deceased Subhangi, when

she was hospitalized for medical treatment for her burns. It would be

seen from multiple dying declarations that the victim Shubangi

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disclosed about the hostile atmosphere at her matrimonial home.

Learned trial Court gave much more emphasis on the discrepancies in

the dying declarations recorded by Revenue and Police Personnels.

6. It is to be noted that the deceased Subhangi cohabited with

husband for a short span of six/seven months at her matrimonial

home. Whenever she had been to the parental home, she disclosed

about her ordeals to the kith and kins. In view of settled rule of law

that in the proceeding of cruelty to married women, generally, incident

used to occur within four walls of the matrimonial home. Therefore, the

victim and her relatives to whom she used to disclose about her cruelty

are only the reliable witnesses into the matter. In the matter in hand

there are multiple dying declarations of the deceased recorded by

Police and Revenue Personnels. The learned trial Court found reluctant

to rely upon the dying declarations for the reason that there are no

certification of the Doctor about mental state of deceased on dying

declarations. Moreover, the dying declarations were recorded by the

same Officers, on two occasions. The learned trial Court also found

discrepancies in regard to the incident narrated by victim Subhangi in

these dying declarations. Therefore, learned trial Court did not accept

the evidence of prosecution witnesses and proceeded to exonerate the

respondents-accused in this case.

7. The superficial scrutiny of the entire oral and circumstantial

evidence adduced on record as referred above. I find that the sufficient

opportunity is essential to be granted to the prosecution for re-

evaluation of the evidence adduced on record on behalf of prosecution.

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Prima facie, I find substance in the contentions put-forth on behalf of

prosecution that there is hope of success for the prosecution in the

present matter. Hence, leave as prayed deserves to be accorded.

8. Accordingly, leave as prescribed under section 378(1)(b) of the

Cr.P.C. is hereby granted. The prosecution is permitted to proceed

further for filing an appeal against the impugned Judgment and order

of acquittal passed by the learned trial Court. The Application for leave

to appeal by state stands disposed of. Registry to take requisite steps

for further process.

9. On registration of appeal, issue notice to respondents /accused.

Mr. Bharad, learned counsel waives service of notice on behalf of

respondents-accused.

10. Record and proceedings has already been received to this Court.

11. After compliance of procedural formalities, list the appeal for

admission in due course.

[ K. K. SONAWANE, J. ]

MTK

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