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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.208 of 2004
State of Maharashtra,
through PSO Sewagram,
Tah. and Distt. Wardha. …. Appellant.
-Versus-
Vilas Deoraoji Hiwanj,
aged about 28 years,
R/o.- Selu (Kate), Tah. and Distt.Wardha. …. Respondent.
————————————————————————————————–
Mr. V.P. Maldhure, Additional Public Prosecutor for State.
Mrs. V.P. Thakre, Advocate for respondent.
————————————————————————————————–
Coram : Mrs. Swapna Joshi, J.
th
Dated : 16
June, 2017.
ORAL JUDGMENT
This appeal has been preferred by the appellant-State against the
judgment and order dated 12-01-2004 delivered in Regular Criminal Case
No.245 of 2001 by the learned Judicial Magistrate First Class, Wardha,
thereby acquitting the respondent of the offence punishable under Section
498A of the Indian Penal Code.
2] I have heard the learned Additional Public Prosecutor for the
appellant-State and Mrs.Thakre, the learned Counsel for the respondent-
accused.
3] I have carefully gone through the record of the case and the
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impugned judgment and order. After going through the record I find that
there is no illegality or perversity in the judgment passed by the learned
Judicial Magistrate First Class, Wardha.
4] The brief facts of the prosecution case are that; the accused
married with the complainant on 05-05-1998 as per their caste and
customs. After marriage the complainant started residing with the
accused at Seloo (Kate). It is the case of the prosecution that the accused
was suspecting the fidelity of the complainant. He used to abuse her and
beat her. He used to ask to bring an amount of Rs.20,000/- from her
father. On the occasion of first Diwali festival, when she came to the
house of her father, her father gave an amount of Rs. 2500/-. Thereafter,
the accused asked to bring Rs.10,000/- to purchase motor pump. Her
father gave an amount of Rs.5000/-. However, the accused was beating
the complainant for the balance amount. In the month of February, 1999,
the complainant went to her father’s house along with her brother for the
first delivery and she gave birth to a baby girl. Although, the information
about the birth of child was given to the accused he did not meet the
complainant. The brother of the complainant took her to the house of the
accused. However, accused refused to keep her in his house. After few
days the complainant came to know that the accused is going to perform
the second marriage. The complainant, therefore, rushed to the Police
Station and lodged the complaint against the accused. The offence was
registered under Section 498A of the Indian Penal Code. The charge-
sheet was filed. The learned Judicial Magistrate First Class framed the
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charge against the accused under Section 498A of the Indian Penal Code.
5] During the course of trial, the prosecution examined in all seven
witnesses; (PW-1) Madhuri Hiwanj is the complainant, (PW-2) Madhukar
Choudhari is the brother of complainant, (PW-3) Annaji Choudhari is the
father of complainant, (PW-4) Kamal Choudhari is the mother of
complainant, (PW-5) Sanjay Adhau is the neighbour of complainant,
(PW-6) Mangesh Wazurkar is the friend of the brother of complainant and
(PW-7) Subhash Mohodkar is the Investigating Officer.
6] I have gone through the entire evidence on record and heard the
learned Additional Public Prosecutor for the appellant-State and
Mrs. Thakre, the learned Counsel for the respondent-accused. The
learned Additional Public Prosecutor for the appellant-State contended
that the learned trial Judge has not considered the evidence on record and
has illegally acquitted the accused, although the cogent evidence was
adduced by the witnesses. The learned Counsel for the accused has
contended that the learned trial Judge has rightly acquitted the accused.
7] On careful scrutiny of the testimony of the complainant (PW-1), it is
noticed that, she has stated that the accused was suspecting her fidelity.
PW-2 also stated that the accused was suspecting her character.
However, apart from the bare words that “the accused was suspecting the
character of his wife”, no evidence is led to elaborate the said contention
of PW-1 and PW-2. It is difficult to rely upon the bare statement of PW-1
and her brother. PW-1 stated on the point of demand that the accused
asked her to bring an amount of Rs.20,000/- from the house of her father.
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Her father gave an amount of Rs.2500/-. The accused continued to ill-
treat her for the remaining amount. At the time of Diwali festival her
husband asked her to bring the amount of Rs.10,000/- for purchasing
motor pump. Her father gave an amount of Rs.5000/-. The accused still
continued beating her for the demand of Rs.10,000/-. During the cross
examination PW-1 has specifically stated that, the amount was not
demanded from her father. She also admitted that no report was lodged
by her for the demand of the said amount. She further admitted that no
notice was issued to the accused to take her back to her matrimonial
house as well as for the demand of the said amount. She also admitted
that she has not stated about the said fact to anyone. On careful scrutiny
of the testimony of PW-1 she does not appear to be reliable and
trustworthy witness. It appears from the testimony of PW-1 that the
accused has made a demand of amount prior to her delivery. After the
said demand, the PW-1 went to her parents house. She delivered a
baby girl and after she came to know that the accused is going to marry
for second time, she has lodged the present complaint. The question
remains that as to why she has not immediately lodged the complaint,
when the accused demanded the amount of Rs. 20,000/- and the further
amount of Rs.10,000/-. So far as the demand of Rs.10,000/- for
purchasing motor pump is concerned, it appears that, at the relevant
time, the accused was in need of amount, therefore, must have demanded
the said amount. However, it is not the consistent case of PW-1 that for
the said demand the accused used to beat her. As far as the testimony of
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PW-2 the brother of the complainant is concerned, he has stated about
the same fact as stated by PW-1 as far as the demand is concerned.
PW-3 is the mother and PW-4 is the father of the victim. Their version is
also corroborated with the testimony of PW-1 on the point of alleged
demand. However, PW-3 in his cross examination admitted that she has
not stated about the said demand to anyone and so also she did not lodge
complaint with the Police Station. The cross examination of PW-4 who is
the father of the victim reveals that the victim stayed with the accused for
about 8 to 9 months. According to him, the accused used to demand
money from the victim. He, however, admitted that he had not lodged the
complaint during the said period for the said demand. He, however,
admitted that his daughter used to visit her house time to time. The
testimony of PW-5 who is the neighbour of her parents also stated about
the alleged demand. It appears that, when PW-1 came to know about the
accused that he was performing second marriage, the present complaint
for cruelty has been lodged by her.
8] It is significant to note that the complainant has delivered a child on
11-02-1999. Since then, the complainant was residing at her parents
house. Three years after the delivery of the child the complainant
proceeded to the Police Station and lodged the complainant in respect of
the alleged demand prior to the delivery of her child. It appears that the
only reason was that as there was apprehension in the mind of the
complainant that the accused was getting married for second time, the
complainant has lodged the complaint against the accused. There is no
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cogent and convincing evidence on record to prove the guilt against the
accused. The learned trial Judge has rightly acquitted the accused of the
aforesaid charge.
9] I do not find any illegality or perversity in the judgment passed by
the learned trial Judge. It is well settled principle of law that in exercise of
its appellate jurisdiction particularly in appeal against acquittal, it is not
open to this Court to substitute its own view with a view taken by the lower
Court, unless the view taken by the lower Court is illegal, perverse or
against the principle of law.
10] There are no sufficient grounds made out by the appellant/State to
interfere with the impugned judgment and order. In these circumstances,
the appeal deserves to be dismissed and accordingly it is dismissed.
JUDGE
Deshmukh
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