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Acquitted in 498A – Delay in FIR of 3.5 years after separation not justified

IN THE COURT OF SESSIONS FOR GREATER MUMBAI, AT MUMBAI

Mayur Vinayak Gaware,
aged 34 years, residing at 208/23, Sant
Dnyaneshwar Society, Gorai no.2, Borivali, Mumbai 400091 … Appellant/Orig. accused no.1.

Versus

The State of Maharashtra,
(at the instance of Senior Inspector of Police,
Vikhroli Police Station, Vikhroli (East),Mumbai…. Respondent/Prosecution.

CORAM : HIS HONOUR THE ADDL. SESSIONS JUDGE
SHRI S.S. ADKAR. (COURT ROOM NO.57)
DATED : 03/12/2016.
Adv.Shri Jagtap for the appellant.
APP Ms.Ratnawali Patil for the prosecution.

JUDGMENT
(DICTATED IN OPEN COURT)

(1) Being aggrieved by the judgment and order passed by the learned Additional Chief Metropolitan Magistrate, 31st Court, Vikhroli, Mumbai in C.C. no.1201/PW/2011 on 26/06/2015 convicting and sentencing the appellant for the offence punishable u/s 498A of IPC, the present appeal is filed. By the said judgment, the appellant was sentenced to suffer simple imprisonment for six months and to pay fine of Rs.1000/, in default to undergo simple imprisonment for fifteen days. The appellant was acquitted of the offences u/s.406, 323, 504 r/w.34 of IPC. The accused nos.2 to 7 were acquitted of u/s.406, 498A, 323, 504 r/w. 34 of IPC.

(2) The appellant is the original accused no.1. The respondent is the prosecution. For the sake of brevity, the parties in the present appeal are referred to by their nomenclature before the learned Trial Court.

(3) In brief, it is the case of the prosecution that the accused no.1 is the son of accused nos.2 and 3 and the brother of the accused nos.4 and 5. The accused no.6 is the sister of accused no.1. The accused no.7 is the grandmother of the accused no.1.

(4) As per the prosecution, the marriage of PW.1 Manisha was solemnized with the accused no.1 on 25/12/2005 as per the customs of their society. After the marriage, PW.1 Manisha started living with all the accused in her matrimonial house at Borivali. Before the marriage, the accused persons had stated that the house in which they were residing was their exclusive property. But it was revealed that it was a rented house. The accused persons used to give ill treatment to PW.1 Manisha as she was not giving them luxurious articles and for dowry. PW.1 Manisha was also physically assaulted and abused in filthy language. It is the case of the prosecution that as on 04/09/2006 PW.1 Manisha was pregnant and a function was arranged but on that day the accused persons abused her in filthy language. PW.1 Manisha gave birth to a male child on 13/12/2006 but even thereafter, the ill treatment continued. On 25/07/2007, PW.1 Manisha was again physically assaulted and driven out of her matrimonial house. The accused persons told her that she would not be taken inside the house unless she brought Rs.2,00,000/. PW.1 Manisha was also asked to give divorce to accused no.1. On 09/11/2012, a meeting was arranged to settle the issues but the matter could not be settled. On 05/02/2011, PW.1 Manisha lodged the report (Exh.18) against all the accused persons. On the basis of the said report, the FIR (Exh.19) bearing crime no. 256/2011 was registered against all the accused for the offences u/s. 498A, 406, 323, 504 r/w. 34 of IPC and the investigation in the matter was started.

(5) During the course of investigation, the statement of witnesses were recorded. After the investigation was complete, the final report was filed against all the accused for the above mentioned offences.

(6) The learned Trial Court framed the charge against all the accused vide Exh.11. The accused pleaded not guilty and claimed to be tried. In order to establish its case, the prosecution examined four witnesses. The defence of the accused was of total denial. The learned Trial Court after considering the evidence led by the prosecution and the stand taken by the accused convicted and sentenced the accused no.1 for the offence u/s.498A of the IPC and acquitted all the other accused. Hence, this appeal.

(7) Heard learned Adv.Shri Jagtap for the appellant and learned APP Ms.Ratnawali Patil for the prosecution. Perused the entire record.

(8). In the light of the facts in the case and submissions made on behalf of the parties, the following points arise for consideration and the findings thereon are recorded as under, for the reasons to follow:

Sr. nos. Points Findings
1 Whether the prosecution proves that in between December2005 to 05/03/2011 at Vikrant Bhavan Coop. Hsg. Soc. D5, Gorai Bridge, Sector no.1, Borivali, Mumbai, accused no.1 subjected PW.1 Manisha to cruelty by harassing her with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security and thereby committed an offence u/s. 498A of IPC?  

No

2 Whether judgment and order passed by the learned Trial Court calls for any interference? Yes
3 What order? Appeal is allowed

 

 

REASONS

AS TO POINT NOS.1 TO 3

(9) PW.1 Manisha deposed that her marriage with the accused no.1 was solemnized on 25/12/2005 at Vikhroli. She deposed that her father had spent about Rs.3,50,000/to Rs.4,00,000/towards the expenses of the marriage. She deposed that after the marriage, she started to reside with all the accused at Borivali. She deposed that before the marriage the accused persons had told her that the accused no.1 was working as an Assistant Director in the Film Industry and accused nos.2 and 3 were working in the Bombay Municipal Corporation. She deposed that the accused persons had told her that the house in which they were living was owned by them but after the marriage, she came to know from the neighbors that the house was rented. She deposed that the accused no.2 used to consume liquor and then quarrel with her and abuse her. She deposed that the accused no.2 used to taunt her on account of dowry and her education. She deposed that accused no.1 also used to quarrel with her and abuse her. She deposed that the rest of the family  members also used to abuse her. She deposed that she had told her parents about the ill treatment given to her.

(10) PW.1 Manisha deposed that the accused no.1 used to assault her. She deposed that on 23/12/2006, she gave birth to a male child and when she returned to her on matrimonial house on 13/02/2007 the accused person removed the servants from the house and they did not pay attention to her child. She deposed that on 22/07/2007, her uncle had expired and therefore, she had gone to the house of her parents but after she returned the accused persons again abused her. She deposed that the accused no.1 did not come to the house in the night and whenever she made enquiry he used to tell her not to question him. She deposed that the accused persons removed her ‘Mangalsutra‘ and assaulted her in the morning and kept her outside the house. She deposed that the accused persons wanted dowry and the house in Tagore Nagar. She deposed that the accused no.1 and his family members were demanding the house. She deposed that she sat outside the house and requested the accused persons to allow her to enter into the house but the accused persons did not permit her to go inside. She deposed that she then informed her father on the phone and her father came there after 8.00 pm and tried to convince the accused persons. She deposed that the accused persons told her father to pay them Rs. 2,00,000/. She deposed that as her father could not afford the amount he brought her to his house. She deposed that she received the notice from accused persons and thereafter she lodged the report(Exh.18) with the Police.

(11)  In cross examination, she stated that she did not personally know how much amount was spent on clothes, lunch and dinner etc. during the marriage. She stated that there were three rooms in the house of the accused persons and that she and the accused no.1 had a separate bedroom. She admitted that she did not lodge any complaint with the Police after she returned to her matrimonial house after the last rights of her uncle were performed. She stated that she had filed only the report (Exh.18) in the matter. She stated that she was residing alongwith her parents since the year 2007. She denied that the accused no.1 used to come to see her and that he used to pay her Rs.1000/per month. She admitted that she filed the report (Exh.18) after receiving the notice from the accused persons. She denied that she used to quarrel with the accused persons as she wanted to live separately with the accused no.1. She stated that all the houses were very close to each other. She stated that no neighbor asked her for the whole day as to why she was sitting there. At the same time, she stated that she also did not tell any neighbor that she was driven out of the house by the accused persons. She stated that she had made the phone call to her father at about 11.30 am from the S.T.D. booth which was in front of the house.

(12) PW.2 Pradeep was working as P.S.O., Vikhorli Police Station during the relevant period. His evidence is restricted to the registration of the report (Exh.18) filed by PW.1 Manisha on 05/02/2011 on the basis of which, the FIR (Exh.19) was registered. He has also deposed that he has arrested the accused persons. In crossexamination, he stated that though during investigation, he had visited the house of the accused persons he did not go inside the house. He also stated that he did not investigate much in this case.

(13) The oral evidence of PW.3 Shivaji is restricted to the filing of the final report. In cross examination, he stated that he did not investigate in the present case.

(14) PW.4 Ashok is the father of PW.1 Manisha. He deposed that he had spent Rs.3,50,000/to Rs.4,00,000/in the marriage of PW.1 Manisha. He stated that he was not knowing the accused persons prior to the marriage and that the accused persons were introduced to him by Smt.Savitribai Ahire. He deposed that from the electricity bill, PW.1 Manisha came to know that the house in which the accused persons were residing did not belong to them. He deposed that PW.1 Manisha informed this to him on phone. He deposed that on 22/07/2007, his brother had expired and when he informed this fact to the accused persons, they did not accept the phone. He deposed that he told this to PW.1 Manisha. He deposed that all the accused had come to attend the last rites of his brother and then they returned. He deposed that on 25/07/2007 at about 11.15 am, he received a phone call from PW.1 Manisha informing him that she was assaulted by the accused persons and driven out of the house. He deposed that he went to the house of the accused alongwith his wife at about 8.15 pm and he saw PW.1 Manisha was outside the house. He deposed that when he knocked the door of the house the accused no.2 opened it. He deposed that the accused no.2 was alone. He deposed that when he made enquiry with the accused no.2, he was told that the accused persons did not require PW.1 Manisha and that he should take her back. He deposed that the accused no.2 told him to pay Rs.2,00,000/and arrange for a house in Tagore Nagar if he wanted that PW.1 Manisha should stay in her matrimonial house. He deposed that when he expressed inability to pay, the accused no.2 abused him and pushed him. He deposed that thereafter, he took PW.1 Manisha to his house. He deposed that on 09/01/2011, a meeting was held in which the accused persons demanded Rs.2,00,000/and a flat.

(15)  In crossexamination, he stated that before marriage he had enquired with the accused persons regarding their house and work. He stated that Smt.Savitribai had given the information to him in that regard. He admitted that he did not lodge any complaint regarding the incident dated 25/07/2007 and that he was telling about that incident for the first time before the Court. He admitted that he did not lodge any report regarding the fact that PW.1 Manisha was driven out of the house or regarding the demand of Rs.2,00,000/and the flat by the accused. He stated that he did not send PW.1 Manisha to the house of the accused persons for residing. He stated that his statement was never recorded by the Police in this case.

(16). From the evidence available on record, it will have to be seen whether the prosecution has proved that the accused no.1 subjected PW. 1Manisha to cruelty as contemplated in clause( b) to the explanation of section 498A of IPC.

(17) While analyzing the material on the record, one thing which will have to be kept in mind is that PW.1 Mainsha had left her matrimonial home on 25/07/2007 and the report(Exh.18) was filed on 05/02/2011 i.e. after 3 years and 6 months that too only after the receipt of a notice of divorce from the accused. The perusal of the oral evidence of PW.1 Manisha shows that the allegations made by her against the accused no. 1 are omnibus and general in nature. There is no specific allegation of cruelty as contemplated in clause( b) to the explanation of Section 498A of IPC. She has not given even the probable date or time on which she was subjected to cruelty by the accused no.1.

(18). It has come in the evidence of PW.1 Manisha that when she returned to her matrimonial home after attending the funeral of her uncle the accused persons abused her. But according to PW.4 Ashok all the accused had accompanied PW.1 Manisha at the time of funeral and that they had returned. Now, if she was being illtreated, then PW.1 Manisha had every opportunity to tell this fact to PW.4 Ashok at that time. But she did tell him anything. She has not given any reason for this. Assuming for a moment that she had told about this to PW.4 Ashok then even he had an opportunity to tell the accused no.1 not to illtreat PW.1 Manisha. But from his evidence, it appears that he never spoke to any of the accused in that regard. In normal course, it was expected from PW.4 Ashok to at least have a word with the accused no.1 and tell him to treat PW.1 Manisha properly.

(19). It has also come in the evidence of PW.1 Manisha that the accused persons assaulted her in the morning and drove her out of the house. But according to PW.4 Ashok, he was informed by PW.1 Manisha that she was also assaulted by the accused persons. Not only that, according to PW.4 Ashok when he went to the house of the accused persons, only accused no.2 was present. This means that at that time, the accused no. 1 was not present in the house. This also makes the case of the prosecution suspicious as it is not the case of PW.1 Manisha that after she was driven out of the house, the accused No.1 had come out of the house and gone anywhere.

(20). It is also necessary to note that it has come in the evidence of PW.1 Manisha that all the houses near the house of the accused persons were very close to each other. It has also come in her evidence that none of the neighbors had made any enquiry with her as to what had happened. It is argued on behalf of the accused no.1 that as PW.1 Manisha was driven out of the house and that she was having a baby with her, somebody from the neighborhood must have seen her and asked her as to what had happened. It is argued that as the prosecution has not examined any independent witness in this regard, the case of the prosecution must fail. The learned Trial Court has considered this argument and rejected the same on the ground that generally such incidents take place within the house and independent witness are not available. The observations made by the learned Trial Court are not correct. This was a situation where PW.1 Manisha was sitting alongwith her child outside the house for the whole day. The child being very small must have cried due to hunger. Also, PW.1 Manisha must have cried and pleaded with the accused persons to convince them to take her inside the house. In normal course, since the houses in the neighborhood were adjacent to each other, somebody must have seen and heard her cries/shouts. But from the evidence of PW.2 IO, it appears that he did not bother to make any enquiry with neighbors to find out whether the incident as alleged by PW.1 Manisha had really occurred.

(21)  It may also be noted that it has come in the evidence of PW.1 Manisha that on 09/11/2011, a meeting was held in which the accused persons demanded Rs.2,00,000/and a flat. But PW.1 Manisha has specifically stated that whenever meetings were called, the accused no.1 did not attend the same. Therefore, there was no question of the accused no.1 demanding any amount of flat from PW.4 Ashok. That apart, it needs to be mentioned that in the report (Exh.18) it is nowhere mentioned that on 09/11/2011 any demand of money was ever made by any of the accused. Therefore, the accused no.1 could not have been convicted on the basis of the general allegations made by PW.1 Manisha.

(22). As stated earlier, according to PW.1 Manisha, she was forced out of her matrimonial home on 25/07/2007. It has come in her crossexamination that after that the accused no.1 never came to see her. The report (Exh.18) is lodged on 05/02/2011 i.e. after 3 years and 6 months. The only reason given by the prosecution for the delay is that PW.1 Manisha was hoping that the accused persons would mend their ways. The reason given is not justified. If the accused no.1 was really treating PW.1 Manisha with cruelty then PW.1 Manisha ought to have approached the Police immediately or at least within reasonable time. The fact that there is delay of almost 3 years and 6 months also makes the case of the prosecution suspicious. In fact, it appears that PW.1 Manisha lodged the report (Exh.18) only as a counter blast to the notice issued by the accused persons because from 25/07/2007 till 05/02/2011 she did not file any complaint against the accused persons alleging that she was harassed or ill treated.

(23). It is also argued on behalf of the accused no.1 that the learned Trial Court could not have relied upon the evidence of PW.4 Ashok as his statement was never recorded by the Police during investigation. In this regard, the learned Advocate for the accused no.1 had relied upon the judgment in the case of Kishor Singnapurkar V/s. State of Maharashtra reported in 2012 ALL MR (Cri) 2886. In that case, it has been held by the Hon’ble High Court that though there cannot be a general prohibition for examining the witness whose statement had not been recorded during the course of investigation, propriety requires that the statement of such a person should be recorded at least before he is permitted to enter the witness box as it is only after the statement is recorded that the Court would be in a position to form an opinion as to whether the evidence of such a witness would be necessary, desirable or even essential for a just decision of the case.

(24). The learned Trial Court has observed that the judgment in the case of Kishor Singnapurkar(supra) is not applicable to the facts of the present case as in that case the application filed u/s 311 of Cr.P.C. was rejected by the Trial Court and the witness was not examined. According to the learned Trial Court, as in the present case, PW.4 Ashok was already examined and the accused had also crossexamined him, the evidence of PW.4 Ashok could not be discarded. The observations made by the learned Trial Court are not correct. It was the duty of the learned Trial Court to have first got recorded the statement of PW.4 Ashok and then the permission should have been granted to the prosecution to examine him in order to enable the Court to form an opinion about the necessity or desirability of the evidence of PW.4 Ashok in light of the observations made in the case of Kishor Singnapurkar (supra). In any case, no reliance can be placed upon the evidence of PW.4 Ashok as it is hearsay and cannot help the case of the prosecution.

(25). In view of the above, it is clear that the the prosecution has failed to prove beyond reasonable doubt that the accused no.1 has committed the offence punishable u/s.498A of IPC. Therefore, the judgment and order passed by the learned Trial Court is required to be interfered with. Hence, point no.1 is answered in the negative, point no.2 is answered in the affirmative and the following order is passed:

ORDER

[1] Criminal Appeal No.680/2015 is allowed.

[2]. The judgment and order passed by the learned Additional Chief Metropolitan Magistrate, 31st Court, Vikhroli, Mumbai in C.C.no.1201/PW/2011 on 26/06/2015 convicting and sentencing the accused no.1 Mayur Vinayak Gaware for the offence punishable u/s 498A of IPC is set aside.

[3]. The accused no.1 Mayur Vinayak Gaware stands acquitted of the offence punishable u/s 498A of IPC.

[4]. The bail bond of accused no.1 Mayur Vinayak Gaware stands cancelled.

[5] Record and proceeding of this case be returned to the Trial Court.

(S.S. ADKAR)
DATE : 03/12/2016
ADDL SESSION JUDGE GREATER MUMBAI.

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