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Contradictory, Vague allegations, clear in Sections 34, 107, 494, 498A and 498B

Bombay High Court

Deokabai Wife Of Namdeo Dhoke
vs
Namdeo S/O Champat Dhoke And Ors.

on 22 July, 1994
Equivalent citations: 1995 (1) ALT Cri 24, 1995 (2) ALT Cri 10, 1996 (1) BomCR 374

Bench: V Sirpurkar
JUDGMENT V.S. Sirpurkar, J

JUDGEMENT

1. Present rider focus has been filed by an disloyal wife, severe a exculpation of indicted non-applicant Nos. 1 to 5, that enclosed her father non-applicant No. 1; her father-in-law, non-applicant No. 2; her mother-in-law, non applicant No. 3; and dual others, of a offences underneath sections 498-A, 498-B, 494 and 107 review with territory 34 of a Indian Penal Code.

2. All these 5 indicted persons were attempted for a abovesaid offences on a censure of a benefaction applicant. It seems that Police Station, Narkhed took a knowledge of a censure of a benefaction applicant and proceeded opposite all these indicted persons. It is firstly not famous as to how a Narkhed Police filed a charge-sheet underneath territory 494 of a Indian Penal Code also as, in fact, a assign underneath that territory could not be launched during a insistence of a police. The hearing Court, that took a cognizance, also did not realize this and merrily went on to support a assign underneath sections 498-A, 494 review with territory 107 also territory 34 of a Indian Penal Code, totally ignoring a imperative sustenance of territory 198 of a Criminal Procedure Code.

3. The assign box was that complainant Deokabai (applicant herein) was married with non-applicant-accused No. 1 about 18 years back, and out of that marriage, she gave birth to 3 masculine children. She claimed that a indicted started ill-treating her given final dual years before to her filing of a news and started insisting on her bringing 10 tolas of bullion and Rs. 8,000/- in cash. It was her explain that she was beaten for non-fulfilment of this demand. She also suggested that a father used to bluster her that he would marry again, if his direct was not fulfilled. She also castigated her mother-in-law and father-in-law. She also insisted in her news that she used to be beaten by her mother-in-law and a purported father-in-law of indicted No. 1, namely, Ramrao Gadekar, used to induce such beating. She also claimed that accused-non-applicant No. 5 Maya was a chairman with whom accused-non applicant No. 1 had engaged second marriage. She also contended that a indicted persons were conspiring to murder her for removing behind 5 acres of rural land that was allotted to her by non-applicant/accused No. 1 towards her maintenance. She also contended that she had left a residence of non-applicant/accused No. 1 and had started staying in one village, and that even before to about one-and-a-half months of filing of a report, non-applicant/accused Nos. 1, 2, 3 and 5 had beaten her exceedingly and that, therefore, she had lodged a news to Narkhed Police Station on that count.

4. On a basement of a pronounced report, it seems that Narkhed military started investigation. It was alright for a military to examine into a corruption underneath territory 498-A of a Indian Penal Code – (Incidentally, in a whole judgment, a schooled Magistrate has created territory ‘498(a)’, nonetheless realising that a scold approach to write is territory 498-A). The Narkhed military also surprisingly allegedly enquired into and investigated a corruption underneath territory 494 of a Indian Penal Code, when a corruption underneath that territory could not be investigated into by them, as corruption underneath that territory is noncognisable . Even territory 155(4) of a Criminal Procedure Code could not come to their assist as a knowledge of corruption underneath territory 494 of a Indian Penal Code can't be taken on a basement of a military report, nonetheless usually on a censure by an depressed person. Provision of territory 198 of a Criminal Procedure Code is some-more than clear. As such, it was fatuous for them to examine into that offence. However, they available a statements of some witnesses and as mentioned by me earlier, in this judgment, a schooled Magistrate also proceeded to support a assign underneath territory 498-A and territory 494 review with territory 107 and territory 34 of a Indian Penal Code.

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5. As many as 7 witnesses came to be examined in support of a assign story, including a applicant/complainant herself and her nearby family like cousin, hermit etc. Surprisingly enough, a military also executed a mark panchanama. One fails to know a sum appropriateness of mark panchanama in a assign underneath territory 498-A and 494 of a Indian Penal Code. This is a classical instance of how a questioning officers examine nonetheless as most requesting their minds during all. Be that as it may, a hearing Court found that a corruption underneath territory 498-A of a Indian Penal Code was not valid during all. The hearing Court found that a justification of a complainant was full of discrepancies. There was no reason to trust that a complainant was ill-treated so most so that she would be driven to dedicate suicide. The hearing Court found that her chronicle about her carrying been beaten before to one year and one-and-a-half months before to creation of a report, also seemed to be suspicious. The hearing Court also found that her explain about bullion and money was also not believable. In fact, a hearing Court has paraphrased her whole deposition in a judgment. In short, after deliberation a justification as a whole, a hearing Court found it formidable to accept a complainant’s story. The hearing Court also deliberate a justification of a other witnesses, like her hermit and cousin and found that even their justification was not estimable of reliance. Taking a resume of all a justification led before him, a schooled Magistrate came to a end that no mixture of corruption underneath territory 498-A of a Indian Penal Code were valid opposite a indicted or any one of them. Considering a contribution on record and a evidence, we find that there is zero wrong with a appreciation of justification or a commentary of contribution arrived during by a hearing Court.

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6. The hearing Court has exclusively discussed extensively a rapist guilt of a indicted persons for territory 494 of a Indian Penal Code and a justification in that behalf, nonetheless realising that it could not have taken knowledge of an corruption underneath territory 494 of a Indian Penal Code on a basement of a military report. The pronounced corruption could be taken knowledge of usually on a basement of a censure of a mother or a depressed person. However, in his enthusiasm, a schooled Magistrate has available a anticipating that given a complainant and a other assign witnesses had unsuccessful to give a sum per a second marriage, even that matrimony was not proved. He found that a assign did not worry to infer some papers that were filed on record. Strangely enough, it seems that a complainant was authorised to record some documents. One fails to know underneath that sustenance of law it authorised filing of a papers by a complainant in State prosecution. Be that as it may, it has righteously abandoned a papers as no bid could be or was done to infer them. Ultimately, a hearing Court clear all a indicted of a assign underneath territory 494 of a Indian Penal Code also.

7. Shri Jaiswal, schooled Counsel appearing on interest of a applicant/complainant, forked out that in fact if all a papers were proved, afterwards it would have been valid that a indicted No. 1 had engaged second marriage. He submitted that nonetheless a hearing Court could not have convicted a indicted of a corruption underneath territory 494 of a Indian Penal Code, nonetheless a factum of a second matrimony itself would have determined that non-applicant/accused No. 1 had treated his wife, a applicant, with unusual cruelty so as to expostulate her to dedicate self-murder and, thus, had committed an corruption underneath territory 498-A of a Indian Penal Code. Thus, Shri Jaiswal wants to take advantage of a claim of second matrimony as a cause to infer a mental cruelty towards a wife. The bid is indeed commendable. However, in a rapist prosecution, there has to be most some-more precision. A assign is to be leveled with anxiety to a sold date, time and place. In this case, when a assign was not in a position even to lay a date, place or other details of a second marriage, it could not be really pronounced during what indicate of time a pronounced vicious diagnosis to a mother began.

8. Again, a whole procession insofar as a hearing for a corruption underneath territory 494 of a Indian Penal Code was concerned, was poor and faulty. The hearing Court could not have framed a assign underneath territory 494 of a Indian Penal Code in a assign started on a basement of a military report. In fact, if anybody was biased since of that, it was not a complainant nonetheless a indicted themselves, as they had to unnecessarily face a hearing for a assign that could never have been framed opposite them in a benefaction trial. They had to face a rigmarole of a trial, when a assign could never be authorised to infer second matrimony in such trial, to move home a assign underneath territory 494 of a Indian Penal Code. The second matrimony was not being sought to be valid in support of a assign underneath territory 498-A of a Indian Penal Code, nonetheless it was being valid to support a assign underneath territory 494 of a Indian Penal Code and, therefore, Shri Jaiswal can't be authorised to contend that if a papers of a second matrimony had been scrupulously proved, a assign underneath territory 498-A of a Indian Penal Code would have been automatically established. There might be a tie between these dual offences, in a clarity that a second matrimony on a partial of a father might infer to be mental cruelty or vicious diagnosis as envisaged underneath territory 498-A of a Indian Penal Code, nonetheless afterwards it would be utterly one thing to infer a assign underneath a pronounced territory 498-A exclusively and utterly another to infer that assign with justification for corruption underneath territory 494 of a Indian Penal Code. The hearing to a border of corruption underneath territory 494 of a Indian Penal Code was unconditionally bootleg and untenable. Such justification led in support of a assign underneath territory 494 of a Indian Penal Code was not receivable in a hearing during all and could not have been used for bringing home a corruption underneath territory 498-A of a Indian Penal Code. In a benefaction case, a assign had sought to infer a assign underneath territory 494 and had not contended any tie between a dual charges and, therefore, it could not be pronounced that any influence was caused to a prosecution. This is detached from a fact that a justification in support of a corruption underneath territory 494 of a Indian Penal Code was unconditionally unsatisfactory.

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9. The limitations, while traffic with a rapist rider during a instance of private celebration are now well-known. There has to be a vivid mistake that has resulted in sum disaster of justice. Though a procession in this box has suffered on comment of relief of a prosecutor, a Court and a defence, yet, if during all there is any prejudice, it was not to a complainant nonetheless to a accused.

10. The hearing Court has given good reasons to uncover that a box per a vicious diagnosis was intensely vague, ubiquitous in inlet and a justification of a witnesses was contradictory. The hearing Court has extensively discussed a justification during slightest insofar as corruption underneath territory 498 of a Indian Penal Code is concerned. To that extent, a visualisation of a hearing Court is right. It will not be probable for me to make any comments for a corruption underneath territory 494 of a Indian Penal Code, since primarily a indicted were not probable to be attempted underneath that section. we find no error, muchless such blunder as would outcome in obvious injustice, in a sequence of a hearing Court and, hence, a rider will have to be discharged and it is, accordingly, dismissed.

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