Bombay High Court
Rupali Vijay Salunkhe vs Shonika @ Sonika Ramesh Salunkhe And Anr on 12 January, 2023
Author: R.N.Laddha
Bench: Nitin W. Sambre, R.N.Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 331 OF 2022
Rupali Vijay Salunkhe ... Appellant
v/s.
Shonika @ Sonika Ramesh Salunkhe
& anr. ... Respondents
Mrs. Ilsa Shaikh for the appellant.
Mrs. M M Deshmukh, APP for the State.
CORAM : NITIN W. SAMBRE &
R.N.LADDHA, JJ.
Digitally signed by LATA SUNIL LATA SUNIL PANJWANI DATE : 12th January 2023 PANJWANI Date:
2023.01.13 17:05:49 +0530 P.C. :
This is an appeal by the Complainant against the judgment of acquittal. The genesis of the offence alleged against respondent No.1 is as under.
2. PW No.1-Complainant alleged that she was married to Vijay whereas respondent-accused Shonika was married to Ramesh. Vijay and Ramesh are brothers and were residing together. Complainant was 2/4 30 appeal 331.22.docx blessed with a daughter by name Bhagyashree and two sons Krushna and Dattatray. On 29th December 2017 Complainant went for fetching Bhagyashree from School during which time her two sons Krushna and Dattatray along with the sons of the accused were playing together. Respondent-accused was present at that time at home as reflected in the order dated 29th December 2017.
3. When Complainant returned from the School, she having noticed that Dattatray, her son aged about 3½ years was not traceable, started searching to which the respondent-accused gave an explanation that he might have gone to the parental home of the Complainant which is nearby. The Complainant having analysed the said situation and having regard to the age of the Dattatray responded by saying that it is not possible for Dattatray to go alone, still she checked it with the parental house. Having noticed that Dattatray is not traced which she tried with the assistance of her husband, on very same day i.e. 29 th December 2017, a police complaint came to be lodged.
4. On the next date along with police officials, the body of Dattatray was traced in a water tank of capacity of 1000 litre. The lid of the water tank was opened by the police officer as is apparent from his testimony.
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5. The PW-4, cousin mother-in-law of Complainant have disclosed that respondent-accused made extra judicial confession disclosing that since Dattatray was always fighting with the daughter of respondent- accused namely Amruta, she having fed up with the same and in view of Dattatray accompanying the daughter Amruta in the school without there being admission and having regard to the complaint/protest lodged by the teacher, she has brought Dattatray in the aforesaid water tank. Dattatray's sleepers were recovered from the spot of the incident. The case of the prosecution is based on two grounds (a) last seen with the accused and (b) extra judicial confession.
6. The appointed Counsel Mr. Ilsa Shaikh while trying to make out a case of indulgence by relying on the judgment of Apex Court in the matter of Ashok vs. State of Maharashtra1 would urge that once the fact that Dattatray was last seen with the accused was traced since beginning, as could be inferred from the FIR, the statement of Complainant recorded under Section 164 of the Cr.P.C. and the evidence of the Complainant, Court ought to have had regard to provisions of Section 106 of the Evidence Act.
7. There appears to be substance in the aforesaid submissions as this Court has gone through the contents of the FIR, the testimony of the Complainant and also the other material on record. In our opinion, 1 (2015) 4 Supreme Court Cases 393 4/4 30 appeal 331.22.docx case for consideration is made out.
8. Hence, Admit. Learned APP waives service of notice on behalf of State.
9. Action under Section 390 Cr.P.C. be initiated.
10. Call for R & P. R.N. LADDHA, J. NITIN W. SAMBRE, J.
Lata Panjwani, P.S.