Raju Maroti Dhore (Abated) And … vs State Of Mah. Thr. The Pso … on 13 April, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR

CRIMINAL APPEAL NO.603/2003

Raju s/o Maroti Dhore,
(Appeal abated since dead)

2. Kausalyabai w/o Maroti Dhore,
aged 47 years, Occ. Cultivator.

Both r/o Amgaon, Tq. Desaiganj,
Dist. Gadchiroli. …..APPELLANTS

…V E R S U S…

State of Maharashtra, through
Police Station Officer, Police Station,
Desaiganj, Dist. Gadchiroli. …RESPONDENT

AND
CRIMINAL APPEAL NO.724/2003

State of Maharashtra, through
Police Station Officer, Police Station,
Desaiganj, Dist. Gadchiroli. …APPELLANT

…V E R S U S…

1. Raju s/o Maroti Dhore,
(Appeal abated since dead)

2. Kausalyabai w/o Maroti Dhore,
aged 47 years, Occ. Cultivator.

3. Waman s/o Mahadeo Nikam,
aged 67 years, Occ. Agriculture. …..RESPONDENTS

AND
CRIMINAL APPEAL NO.764/2003

State of Maharashtra, through
Police Station Officer, Police Station,
Desaiganj, Dist. Gadchiroli. …APPELLANT

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…V E R S U S…

1. Raju s/o Maroti Dhore,
(Appeal abated since dead)

2. Kausalyabai w/o Maroti Dhore,
aged 47 years, Occ. Cultivator.

3. Waman s/o Mahadeo Nikam,
aged 67 years, Occ. Agriculture. …..RESPONDENTS

—————————————————————————————————
None for the appellants-Accused.
Mr. M. J. Khan, A.P.P. for respondent-State.
————————————————————————————————–

CORAM:- B. P. DHARMADHIKARI AND
V. M. DESHPANDE, JJ.

DATED :-

APRIL 13, 2017

ORAL JUDGMENT (Per : V. M. Deshpande, J.)

1. These three appeals were taken up for final hearing

simultaneously and they are decided by this common judgment since all

these three appeals arise out of the judgment delivered by the learned

1st Ad hoc Additional Sessions Judge, Gadchiroli in Sessions Trial No.

30/1999 dated 21.08.2003.

2. Criminal Appeal No.603/2003 is preferred by original

accused no.1-Raju Maroti Dhore and accused no.2-Kausalyabai wd/o

Maroti Dhore. By the judgment dated 21.08.2003, the learned Judge of

the Court below convicted the accused no.1-Raju for the offence

punishable under section 376 of the IPC and directed him to suffer

rigorous imprisonment for three years and to pay a fine of Rs.1,000/-

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and in default of payment of fine to suffer rigorous imprisonment for

three months.

The accused-Raju and Kaushalyabai were further convicted

by the Court below for the offence punishable under Section 498-A read

with Section 34 of the Indian Penal Code and they were sentence to

suffer rigorous imprisonment of six months and to pay a fine of

Rs.500/- by each of them and in default of payment of fine to suffer

rigorous imprisonment for 1 ½ months. It is this conviction and order

of sentence which is questioned in Criminal Appeal No.603/2003.

Criminal Appeal No.724/2003 is preferred by the State

Government since the Court below acquitted the original accused nos. 1

and 2-Raju and Kaushalyabai and original accused no.3-Waman of the

offence punishable under Section 506 (2) of the IPC and under Section

3 and 4 of the Dowry Prohibition Act.

The remaining Criminal Appeal No.764/2003 is also

preferred by the State Government challenging the acquittal of the

original accused no.3-Waman of the offence punishable under Section

498-A of the IPC and Section 3 of the Dowry Prohibition Act. Criminal

Appeal No.764/2003 also questioning the quantum of sentence imposed

upon by the learned Judge of the Court below on the original accused

no.1-Raju for the offence punishable under Section 376 and also

quantum in respect of the conviction under Section 498-A of the IPC.

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3. We have heard Mr. M. J. Khan, the learned A.P.P. for the

State in all these three appeals. The counsel for the appellants in

Criminal Appeal No.603/2003 and counsel for the respondent in the

State appeals chose not to remain present at the time of hearing.

4. During the pendency of these three appeals, the original

accused no.1-Raju Dhore was reported to be dead and therefore vide

order dated 08.12.2006, the appeal filed against him was abated.

5. With the assistance of Mr. Khan, the learned A.P.P., we have

gone through the record and proceedings. Since the original accused

no.1-Raju has expired and the appeal is abated, we need not to dilate

on the judgment of conviction under Section 376 of the IPC and the

quantum of punishment.

6. Admittedly, the first informant Sugita, wife of the accused

no.1-Raju is the daughter of his maternal uncle. Admittedly, accused

no.3-Waman is not in any way related to the accused nos.1 and 2 or

Sugita, the complainant. He is only one of the neighbour of the accused

nos. 1 and 2.

The provisions of Section 498-A of the Indian Penal Code

reads thus:

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“498A. Husband or relative of husband of a woman
subjecting her to cruelty.–Whoever, being the husband or
the relative of the husband of a woman, subjects such woman
to cruelty shall be punished with imprisonment for a term
which may extend to three years and shall also be liable to
fine.

Explanation.–For the purpose of this section, “cruelty”
means–

(a) any wilful conduct which is of such a nature as is likely
to drive the woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or
physical) of the woman; or

(b) harassment of the woman where such harassment is with
a view to coercing her or any person related to her to meet
any unlawful demand for any property or valuable security
or is on account of failure by her or any person related to her
to meet such demand.”

Perusal of the said clearly shows that the said provision can

be attracted only against the husband or relatives of the husband. In

the present case, since it is an admitted position that the accused

Waman is not in any way related to the deceased accused no.1-husband

of the complainant Sugita, in our view, the learned Judge of the Court

below has rightly acquitted Waman of the offence punishable under

Section 498-A of the IPC.

7. Insofar as Section 3 and 4 of Dowry Prohibition Act is

concerned, the learned Judge of the Court below has rightly recorded a

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finding that at the time of performing the marriage or prior to the

performance of marriage, there was no demand whatsoever by any of

the accused persons. The case of the prosecution against the accused

nos.1 and 2 was that after marriage there was a demand however that

cannot fall within the ambit of the provisions of Section 3 and 4 of the

Dowry Prohibition Act.

It is further case of the prosecution that the accused no.3

abetted the accused nos. 1 and 2 for the same. The learned Judge of

the Court below has rightly recorded a finding that looking to the stay

of Sugita in the house of the accused nos.1 and 2 which is only for a

period of 7 days, it is impossible for the third person, who is not related

to the family, that he will instigate the accused no.2 against a newly

wedded daughter in law. The aforesaid view taken by the learned

Judge of the Court below is most probable one and we would not

dislodge the said view taken by the learned Judge. Therefore, according

to us, no fault can be located in the impugned judgment acquitting all

the accused persons of the offence punishable under Sections 3 and 4 of

the Dowry Prohibition Act.

8. Insofar as the conviction under Section 498A to

Kaushalyabai is concerned, according to us, the learned Judge has not

considered the nature of the accusations and the evidence brought on

record against Kaushalyabai in its correct perspective. The report is

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dated 04.11.1998 and it is available on record at Exh.-13. No doubt

true that the FIR is not substantive piece of evidence. However, at the

same time, it could be used for the purpose of contradiction and

corroboration to the maker of the said document. The evidence of

Sugita (PW1) is at variance to the statement of facts, which she has

asserted in Exh.-13 on 04.11.1998 in respect of the incident dated

03.11.1998.

Perusal of the cross-examination of Sugita (PW1) clearly

shows that her entire version is full of contradictions and omissions

which are duly proved by the evidence when the Investigating Officer

was under cross-examination.

9. Looking to the overall nature of the accusations made

against Kaushalyabai, we are of the view that the evidence of the

prosecution is too short to connect Kaushalyabai with the offence

punishable under Section 498-A of the IPC. In the result, the said

charge must fail against the accused Kaushalyabai.

10. In the result, we pass the following order.

ORDER

(i) Criminal Appeal No.603/2003 filed by
Kaushalyabai is allowed.
(ii) The judgment and order of conviction dated

21.08.2003 passed by 1st Ad hoc Additional Sessions

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Judge, Gadchiroli in Sessions Case No. 30/1999
convicting the appellant-Kaushalyabai for the offence
punishable under Section 498-A of the IPC is quashed and
set aside.

(iii) Bail bonds of the appellant-Kaushalyabai stand
cancelled.

(iv) Criminal Appeal Nos. 724/2003 and 764/2003
filed by the State are dismissed.

(V. M. Deshpande, J.) (B. P. Dharmadhikari, J.)

kahale

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