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Contradictory, Vague allegations, acquitted 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 revision application has been filed by an estranged wife, challenging the acquittal of accused non-applicant Nos. 1 to 5, which included her husband non-applicant No. 1; her father-in-law, non-applicant No. 2; her mother-in-law, non applicant No. 3; and two others, of the offences under sections 498-A, 498-B, 494 and 107 read with section 34 of the Indian Penal Code.

2. All these five accused persons were tried for the abovesaid offences on the complaint of the present applicant. It seems that Police Station, Narkhed took the cognizance of the complaint of the present applicant and proceeded against all these accused persons. It is firstly not known as to how the Narkhed Police filed a charge-sheet under section 494 of the Indian Penal Code also as, in fact, the prosecution under that section could not be launched at the behest of the police. The trial Court, which took the cognizance, also did not realise this and merrily went on to frame a charge under sections 498-A, 494 read with section 107 also section 34 of the Indian Penal Code, completely ignoring the mandatory provision of section 198 of the Criminal Procedure Code.

3. The prosecution case 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 three male children. She claimed that the accused started ill-treating her since last two years prior to her filing of the report and started insisting upon her bringing 10 tolas of gold and Rs. 8,000/- in cash. It was her claim that she was beaten for non-fulfilment of this demand. She also suggested that the husband used to threaten her that he would marry again, if his demand was not fulfilled. She also castigated her mother-in-law and father-in-law. She also insisted in her report that she used to be beaten by her mother-in-law and the alleged father-in-law of accused No. 1, namely, Ramrao Gadekar, used to instigate such beating. She also claimed that accused-non-applicant No. 5 Maya was the person with whom accused-non applicant No. 1 had contracted second marriage. She also contended that the accused persons were conspiring to murder her for getting back 5 acres of agricultural land which was allotted to her by non-applicant/accused No. 1 towards her maintenance. She also contended that she had left the house of non-applicant/accused No. 1 and had started residing in one village, and that even prior to about one-and-a-half months of filing of the report, non-applicant/accused Nos. 1, 2, 3 and 5 had beaten her severely and that, therefore, she had lodged a report to Narkhed Police Station on that count.

4. On the basis of the said report, it seems that Narkhed police started investigation. It was alright for the police to investigate into the offence under section 498-A of the Indian Penal Code – (Incidentally, in the whole judgment, the learned Magistrate has written section ‘498(a)’, without realising that the correct way to write is section 498-A). The Narkhed police also surprisingly allegedly enquired into and investigated the offence under section 494 of the Indian Penal Code, when the offence under that section could not be investigated into by them, as offence under that section is noncognisable . Even section 155(4) of the Criminal Procedure Code could not come to their aid as the cognizance of offence under section 494 of the Indian Penal Code cannot be taken on the basis of a police report, but only on the complaint by an aggrieved person. Provision of section 198 of the Criminal Procedure Code is more than clear. As such, it was futile for them to investigate into that offence. However, they recorded the statements of some witnesses and as mentioned by me earlier, in this judgment, the learned Magistrate also proceeded to frame a charge under section 498-A and section 494 read with section 107 and section 34 of the Indian Penal Code.

5. As many as seven witnesses came to be examined in support of the prosecution story, including the applicant/complainant herself and her near relations like cousin, brother etc. Surprisingly enough, the police also executed a spot panchanama. One fails to understand the total propriety of spot panchanama in a prosecution under section 498-A and 494 of the Indian Penal Code. This is a classic example of how the investigating officers investigate without as much applying their minds at all. Be that as it may, the trial Court found that the offence under section 498-A of the Indian Penal Code was not proved at all. The trial Court found that the evidence of the complainant was full of discrepancies. There was no reason to believe that the complainant was ill-treated so much so that she would be driven to commit suicide. The trial Court found that her version about her having been beaten prior to one year and one-and-a-half months prior to making of the report, also appeared to be suspicious. The trial Court also found that her claim about gold and cash was also not believable. In fact, the trial Court has paraphrased her whole deposition in the judgment. In short, after considering the evidence as a whole, the trial Court found it difficult to accept the complainant’s story. The trial Court also considered the evidence of the other witnesses, like her brother and cousin and found that even their evidence was not worthy of reliance. Taking the resume of all the evidence led before him, the learned Magistrate came to the conclusion that no ingredients of offence under section 498-A of the Indian Penal Code were proved against the accused or any one of them. Considering the facts on record and the evidence, I find that there is nothing wrong with the appreciation of evidence or the findings of facts arrived at by the trial Court.

6. The trial Court has independently discussed extensively the criminal liability of the accused persons for section 494 of the Indian Penal Code and the evidence in that behalf, without realising that it could not have taken cognizance of an offence under section 494 of the Indian Penal Code on the basis of a police report. The said offence could be taken cognizance of only on the basis of a complaint of the wife or the aggrieved person. However, in his enthusiasm, the learned Magistrate has recorded a finding that since the complainant and the other prosecution witnesses had failed to give the details regarding the second marriage, even that marriage was not proved. He found that the prosecution did not bother to prove some documents which were filed on record. Strangely enough, it seems that the complainant was allowed to file some documents. One fails to understand under which provision of law it allowed filing of the documents by a complainant in State prosecution. Be that as it may, it has rightly ignored the documents as no effort could be or was made to prove them. Ultimately, the trial Court acquitted all the accused of the charge under section 494 of the Indian Penal Code also.

7. Shri Jaiswal, learned Counsel appearing on behalf of the applicant/complainant, pointed out that in fact if all the documents were proved, then it would have been proved that the accused No. 1 had contracted second marriage. He submitted that though the trial Court could not have convicted the accused of the offence under section 494 of the Indian Penal Code, yet the factum of the second marriage itself would have established that non-applicant/accused No. 1 had treated his wife, the applicant, with phenomenal cruelty so as to drive her to commit suicide and, thus, had committed an offence under section 498-A of the Indian Penal Code. Thus, Shri Jaiswal wants to take advantage of the allegation of second marriage as a factor to prove the mental cruelty towards the wife. The effort is indeed commendable. However, in a criminal prosecution, there has to be much more precision. A charge is to be levelled with reference to a particular date, time and place. In this case, when the prosecution was not in a position even to allege the date, place or other particulars of the second marriage, it could not be definitely said at what point of time the said cruel treatment to the wife began.

8. Again, the whole procedure insofar as the trial for the offence under section 494 of the Indian Penal Code was concerned, was defective and faulty. The trial Court could not have framed a charge under section 494 of the Indian Penal Code in a prosecution started on the basis of the police report. In fact, if anybody was prejudiced because of that, it was not the complainant but the accused themselves, as they had to unnecessarily face a trial for a charge which could never have been framed against them in the present trial. They had to face a rigmarole of the trial, when the prosecution could never be allowed to prove second marriage in such trial, to bring home a charge under section 494 of the Indian Penal Code. The second marriage was not being sought to be proved in support of the charge under section 498-A of the Indian Penal Code, but it was being proved to support a charge under section 494 of the Indian Penal Code and, therefore, Shri Jaiswal cannot be allowed to say that if the documents of the second marriage had been properly proved, the charge under section 498-A of the Indian Penal Code would have been automatically established. There may be a connection between these two offences, in the sense that a second marriage on the part of the husband may prove to be mental cruelty or cruel treatment as envisaged under section 498-A of the Indian Penal Code, but then it would be quite one thing to prove a charge under the said section 498-A independently and quite another to prove that charge with evidence for offence under section 494 of the Indian Penal Code. The trial to the extent of offence under section 494 of the Indian Penal Code was wholly illegal and untenable. Such evidence led in support of the charge under section 494 of the Indian Penal Code was not receivable in the trial at all and could not have been used for bringing home the offence under section 498-A of the Indian Penal Code. In the present case, the prosecution had sought to prove the charge under section 494 and had not contended any connection between the two charges and, therefore, it could not be said that any prejudice was caused to the prosecution. This is apart from the fact that the evidence in support of the offence under section 494 of the Indian Penal Code was wholly unsatisfactory.

9. The limitations, while dealing with a criminal revision at the instance of private party are now well-known. There has to be a glaring mistake which has resulted in total failure of justice. Though the procedure in this case has suffered on account of complacency of the prosecutor, the Court and the defence, yet, if at all there is any prejudice, it was not to the complainant but to the accused.

10. The trial Court has given good reasons to show that the case regarding the cruel treatment was extremely vague, general in nature and the evidence of the witnesses was contradictory. The trial Court has extensively discussed the evidence at least insofar as offence under section 498 of the Indian Penal Code is concerned. To that extent, the judgment of the trial Court is right. It will not be possible for me to make any comments for the offence under section 494 of the Indian Penal Code, because initially the accused were not liable to be tried under that section. I find no error, muchless such error as would result in patent injustice, in the order of the trial Court and, hence, the revision will have to be dismissed and it is, accordingly, dismissed.

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