State Of Mah.Thr.P.S.O.Sewagram vs Vilas Deoraoji Hiwanj on 16 June, 2017

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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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