SANTRAM DHONDIRAM KAWADEversusSTATE OF MAH and ORS

2026:BHC-AUG:40370


                                             *1*           revn289o05 against acquittal


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                     CRIMINAL REVISION APPLICATION NO.289 OF 2005


                Santram s/o Dhondiram Kawade,
                Aged about 45 years, Occ. Agriculture,
                R/o Khamgaon, Tq. Kannad, Dist. Aurangabad.
                                                     ...APPLICANT
                                                     (orig. complainant)

                       -VERSUS-


                1.     The State of Maharashtra
                       through the Police station,
                       Shivoor, Tq. Vaijapur,
                       Dist.Aurangabad.

                2.     Dnyaneshwar s/o Baburao Jadhav,
                       Age: 37 Years, Occ: Agriculture,
                       R/o: Shivoor, Tq. Vaijapur,
                       Dist. Aurangabad.

                3.     Baburao s/o Sakharam Jadhav,
                       Age: 75 Years, Occ: Agriculture,
                       R/o: Shivoor, Tq. Vaijapur,
                       Dist. Aurangabad.

                4.     Asarabai w/o Baburao Jadhav,
                       Age: 70 Years, Occ: Agriculture,
                       R/o: Shivoor, Tq. Vaijapur,
                       Dist. Aurangabad.

                5.     Latabai w/o Devidas Salpure,
                       Age: 26 Years, Occ: Agriculture,
                       R/o: Jawli, Tq. Kannad,
                       Dist. Aurangabad.

                6.     Sindhubai w/o Narayan Salunke,
                           *2*             revn289o05 against acquittal


      Aged: 28 Years, Occ : Agri,
      R/o: Kavtkheda, Tq. Vaijapur,
      Dist. Aurangabad.
                                      ...RESPONDENTS
                        (nos.2 to 6 : orig. accused Nos.1 to 5)


                               …
Shri A.A. Mukhedkar, Advocate for the applicant/ complainant.
Shri M.A. Aher, APP for respondent No.1/ State.
Shri Shrikant Sali, advocate h/f Shri Nilesh S. Ghanekar,
advocate for respondent Nos.2 to 6/ accused.
                               …


                  CORAM : SUSHIL M. GHODESWAR, J.

                  Reserved on : 28 August 2026

                  Pronounced on : 04 September 2026


JUDGMENT :-

1.          This Criminal Revision Application has been

preferred under Section 397 read with Section 401 of the Code of

Criminal Procedure, 1973 (for short, 'the CrPC') by the original

complainant (PW-1), being the father of the deceased Kavita,

challenging the Judgment and Order dated 19.07.2005 passed by

the learned IVth Ad-hoc Assistant Sessions Judge, Aurangabad,

in Sessions Case No. 72 of 2005, whereby respondent Nos. 2 to 6

(original accused) came to be acquitted of the offences

punishable under Sections 498-A and 304-B read with Section 34
                             *3*              revn289o05 against acquittal


of the Indian Penal Code, 1860 (for short, 'the IPC') and under

Sections 3 and 4 of the Dowry Prohibition Act, 1961.


2.           It is not in dispute that respondent No. 1 /State has

not preferred any appeal against the said acquittal, hence, the

present revision is at the instance of the private complainant.


3.           The prosecution story is that the deceased Kavita

was married to accused No. 1 (Dnyaneshwar) on 21.05.2004. A

sum of Rs. 60,000/- was agreed towards dowry of which Rs.

50,000/- was paid at the time of marriage and the remaining Rs.

10,000/- was payable within a year thereof. It was alleged that

after about two months of the marriage, Kavita was subjected to

ill-treatment and beating at the hands of accused Nos.1 to 3 on

account of the demand for the balance dowry amount. Kavita was

further charged by accused No.3 (mother-in-law) with having

developed illicit relations with accused No. 2 (father-in-law). On

31.01.2005, the complainant (P.W.1) received telephonic

information that Kavita had died during treatment at Ghati

Hospital, Aurangabad, upon consuming Endosulfan poison.

Initially, the case was registered as an Accidental Death Case and

upon lodging of complaint Exhibit 18 by P.W.1, Crime No. 06 of
                            *4*             revn289o05 against acquittal


2005 was registered against the accused persons.


4.          Criminal law was set into motion. During the course

of investigation, Chemical Analyser’s reports (Exhs. 31 and 32)

confirmed the presence of Organochloro insecticide Endosulfan

(Thiodan) in quantities consistent with fatal poisoning. The

prosecution examined five witnesses, namely, P.W.1 Santram

(father and complainant), P.W.2 Gangadhar (brother of P.W.1),

P.W.3 Balu Vitthal Singare (mediator), P.W.4 Kusumbai (mother),

and P.W.5 API Surendra Sirsath (Investigating Officer), and

additionally relied upon two post-cards marked as articles ‘A’ and

‘B’ said to have been sent from jail by the accused persons. After

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

The charge was framed. The accused persons pleaded not guilty

and claimed to be tried.


5.          By the impugned judgment, the Trial Court

answered the point of suicidal death in the affirmative, but held

that the prosecution failed to prove cruelty within the meaning of

Section 498-A IPC and dowry death within the meaning of

Section 304-B IPC, consequently acquitted all the accused for the

aforesaid offences.
                             *5*              revn289o05 against acquittal


6.           Learned advocate for the applicant/ complainant has

raised preliminary issue that the trial of accused Nos.1 to 5 by the

IVth Ad-hoc Assistant Sessions Judge, Aurangabad, for an

offence punishable under Section 304-B of the IPC was without

jurisdiction, having regard to Section 28(3) of the CrPC. In this

regard, learned counsel for the applicant relied upon the Division

Bench decision of this Court in Prabhakar L. Pawar v. State of

Maharashtra [2012 Cri. L.J. 4726], wherein it was observed that

Section 28(3) CrPC operates as a threshold bar and that a

Sessions Judge cannot assign a case involving a potential

sentence exceeding ten years to an Assistant Sessions Judge.


7.           This argument is countered by the learned counsel

for the accused persons by relying upon the decision of this Court

in Jabbar Kasamali Sheikh v. State of Maharashtra [2010(3)

Bom. C.R. (Cri.) 96] and the judgment of the Madras High Court

in Santhanasamy & Ors. v. Felix Adaikalaraj & Ors. [2026

Supreme(Mad) 324] by contending that the restriction under

Section 28(3) CrPC relates strictly to the sentencing power and

does not take away the competence to try the case once assigned

under Section 194 CrPC.
                              *6*              revn289o05 against acquittal


8.           Having     considered    the   above       arguments             on

preliminary issue, this Court finds the reasoning adopted in

Santhanasamy and Jabbar Kasamali Sheikh (supra) is more

persuasive. The quantum of punishment prescribed for an offence

is not determinative of the court's competence to try it under

Section 194 CrPC. Once a case is validly made over, the

Assistant Sessions Judge derives jurisdiction to try the same, and

the limitation under Section 28(3) CrPC operates exclusively at

the stage of sentencing. In the present case, the trial culminated

in an acquittal and no sentence was ever passed. Therefore, the

trial cannot be branded as a nullity or without jurisdiction.


9.           On merits of the impugned judgment of acquittal,

learned counsel for the applicant/ complainant submitted that the

Trial Court failed to properly appreciate the evidence of P.W.1 to

P.W.4 establishing persistent cruelty on account of the unpaid

balance of Rs. 10,000/-. All four witnesses deposed that after

about two months of marriage, deceased Kavita was subjected to

ill-treatment, beating and false allegations of illicit relations, all

linked to the demand for the balance dowry. At Diwali, she

narrated these facts while weeping. The Trial Court relied on the
                              *7*           revn289o05 against acquittal


presumption under Section 113-B of the Indian Evidence Act by

first holding that the accused, being financially stronger, would

not have raised the demand.


10.         Learned advocate for the complainant further

submitted that the post-cards Articles ‘A’ and ‘B’ containing the

extra-judicial confession of the accused were wrongly discarded

by the Trial Court. The mere absence of the accused from the

house at the precise time of consumption of poison cannot negate

the charge of dowry death when the foundational facts of demand

and continuous harassment stand established. Reliance was

placed on Pawan Kumar v. State of Haryana, (1998) 3 SCC 309 ,

to contend that even a quarrel one day before death, coupled with

earlier demands, is sufficient to attract the presumption under

Section 113-B. As such, learned advocate has strenuously

submitted that the learned Trial Judge has committed error while

passing the impugned judgment of acquittal and therefore, the

impugned order needs to be quashed and set aside.


11.         The learned APP adopted the submissions of the

learned advocate for the complainant and submitted that the

impugned judgment requires interference at the hands of this
                             *8*            revn289o05 against acquittal


Court.


12.         On the other hand, learned counsel for the accused

persons submitted that the present revision filed by a private

complainant against an acquittal invokes jurisdiction that is

extremely narrow. Reliance is placed on Mallappa v. State of

Karnataka, 2024 INSC 104 (decided 12.02.2024) to contend that

if two views are possible, the view favourable to the accused

must be preferred, and that mere possibility of contrary view is

not a ground for interference.


13.         Learned advocate for the accused further submitted

that the essential ingredients of Section 304-B IPC as restated in

Shoor Singh v. State of Uttarakhand, (2025) 2 SCC 815 , have not

been proved. While unnatural death within seven years is

admitted, however, there is no evidence of cruelty or harassment

soon before death. The only disclosure is the Diwali narration,

which occurred several months before 31.01.2005. There is no

dying declaration. P.W.5 confirmed that none of the material

witnesses stated any proximate disclosure during investigation.

Applying the proximity test as discussed by the Chhatisgarh High

Court in Bandhan Dubey vs. Saroj and others, 2017 (5) CGLJ
                              *9*              revn289o05 against acquittal


530 : MANU/CG/0058, a remote disclosure cannot satisfy the

“soon before” requirement.


14.          Learned advocate for the accused further submitted

that the allegation of physical cruelty is unsupported by medical

evidence. The inquest panchnama and post-mortem reports

record no external injuries consistent with stick beating. P.W.4’s

claim stands contradicted by official documents. The post-cards

remain unproved in authorship. All four family witnesses speak

only   of   hear-say    evidence     and    suffer      from         material

improvements.


15.          On the presumption under Section 113-B of the

Evidence Act, it was submitted by the learned advocate for the

accused that the presumption arises only after the foundational

facts are proved beyond reasonable doubt. The Trial Court

correctly held that the presumption could be attracted only when

the factum of cruelty is first established. Once the foundational

facts are missing, the presumption never arises. The observation

regarding the relative financial position of the parties is at best an

additional reason and does not invert the statutory scheme. In

view of these submissions, learned advocate for the accused
                             *10*             revn289o05 against acquittal


strongly supported the impugned judgment of acquittal.


16.          After hearing the learned advocates for the

respective parties and with their assistance, after perusing the

record available, this Court finds that the essential ingredients of

Section 304-B IPC, as restated in Shoor Singh v. State of

Uttarakhand [AIR 2024 SC 4551], namely cruelty or harassment

“soon before” death in connection with a demand for dowry,

have not been established in this case. As rightly observed by the

Trial Court, the evidence regarding dowry demand and

continuous ill-treatment suffers from material improvements and

omissions, and the alleged disclosures made during visits or

festivals are too remote to satisfy the proximity test. Furthermore,

the allegation of physical cruelty is completely unsupported by

medical evidence, as the post-mortem report (Exh. 21) and

inquest panchnama (Exh. 11) reveal no external injuries. The

post-cards (articles ‘A’ and ‘B’) remained unproved regarding

authorship and proper custody, and the ocular testimony of the

family members suffers from material contradictions and hearsay.


17.          On the basis of evidence produced by the

prosecution, the Trial Court committed no error in holding that
                             *11*             revn289o05 against acquittal


the statutory presumption under Section 113-B of the Indian

Evidence Act, 1872, does not arise until the foundational facts of

cruelty “soon before death” are independently proved beyond

reasonable doubt. The Trial Court has also noted the probable

alternate defence that the deceased consumed poison in a fit of

anger/passion after being asked to complete cotton plucking

work in the field before visiting her parental house to see her

brother's newly born child. The appreciation of evidence by the

Trial Court is balanced and plausible. The applicant/ complainant

has failed to make out any case of perversity or illegality.


18.          It is well-established that the revisional jurisdiction

under Sections 397/401 CrPC against an order of acquittal,

especially at the instance of a private complainant, is extremely

narrow and circumspect. This Court does not sit as a second

appellate court to re-weigh evidence. As held by the Hon'ble

Supreme Court in Mallappa v. State of Karnataka (supra), if two

views are possible, the view favourable to the accused must be

preferred, and mere possibility of a contrary view does not

warrant interference unless the findings are perverse, based on no

evidence, or vitiated by a manifest error of law.
                                  *12*           revn289o05 against acquittal


      19.         Resultantly, the Criminal Revision Application being

      devoid of merit stands dismissed.




kps                                  (SUSHIL M. GHODESWAR, J.)