THE STATE OF MAHRASHTRA. Vs ISHWAR SAMBHAJI KURE.

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1] Heard learned counsel for the parties.

2] Being aggrieved by the judgment and order dated 29.9.1995 passed by the Additional Sessions Judge, Latur, in Sessions Case No.167/1993 by which an order of acquittal was recorded acquitting the accused nos.1 to 4, the present appeal was filed by the State against acquittal.

3] We have perused the judgment under challenge. We find that a categorical finding has been recorded by the learned trial Judge that the prosecution has failed to prove by concrete evidence that the death of deceased Shantabai was homicidal or suicidal. The finding is recorded in paragraph no.93 of the impugned judgment. We quote the relevant portion therefrom as under:

"93. It thus therefore comes from these discussions and the important question emphasized above that firstly death of deceased is neither suicidal nor homicidal, deceased was not subjected to cruelty by way of harassment for coercing her to meet unlawful demand or for non- fulfillment of those demands. There is thus therefore no commission of suicide. And the act of subjection to deceased ether by willful conduct likely to commit suicide or of harassment for coercing to meet unlawful demands or their

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non-fulfillment is not emerging out and at the same time therefore it cannot in such circumstances be spelt that accused abetted the commission of any suicide of deceased Shantabai. It has clearly come out that the death of deceased Shantabai is either natural due to sickness or due to accidental slip and passing of secretion into lungs during unconsciousness due to stoppage of cough reflex and the vomiting by accident, but it definitely is not homicidal or suicidal. There is also no evidence about the beating or accused coming together about the beating or accused coming together in furtherance of their common intention. But, on the other hand it is pointed out that deceased Shantabai was desirous for having her issues to survi9ve, she had already begotten two issues but, unfortunately those could not survive, her husband was not superstitious minded and (DW2) Mahadevi wife of Rawan, the accused no.2 had made it clear that relations of the family members were very cordial and there had been no quarrel at any time. There is thus therefore no substance in the allegation that deceased Shantabai was ever tortured during her marital life."

4] We have checked up whether the finding recorded by the trial Judge is in consonance with the evidence or

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not. For that, we have seen the evidence of PW1 Dr.Deelip Shinde so also the post mortem report. The opinion in the post mortem report reads thus:

"Patient died due to cute cardio respiratory arrest following is anesthetical pneumonias due to encephalitis."

5] We also find that the doctor admitted in the cross- examination that because of the presence of food particles in the trachea so also congestion in the lungs and the presence of cough in the respiratory system, there was likelihood of congestion and respiratory attack. Thus, we find that a serious doubt about the cause of death of deceased Shantabai could legitimately be raised as was raised by the learned trial Judge. We do not think that we would be entitled to take another view of the matter and for recording a finding that the death was not homicidal or suicidal. The doctor also stated in his cross-examination that the manner in which nail marks found on the neck did not indicate anything to conclude about the homicidal death. The learned trial Judge, therefore, believed the evidence tendered by the doctor and came to the conclusion that it was not

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possible to firmly conclude about the homicidal or suicidal death of deceased Shantabai.

6] The learned APP for the State submitted that there was a charge u/s 498-A of the Indian Penal Code as well. The trial Judge has recorded a finding about absence of satisfactory evidence on record, with which we concur.

7] We do not want to take another view in the matter in the light of the principle set out by the Supreme Court in paragraph no.24 in the case of State of Rajasthan vs. Darshan Singh alias Darshan Lal (AIR 2012 SC 1973). We quote Para 24 of the said decision as under:

"24. We are fully aware of our limitation to interfere with an order against acquittal. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

4] Hence, we pass the following order.

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ORDER

Criminal Appeal No.104/1996 is dismissed.

(INDIRA K. JAIN, J.) (A.B. CHAUDHARI, J.)

ndk/cr1101528.doc