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Mahesh Subhanrao Kalge vs The State Of Maharashtra And Anr on 27 April, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1178 OF 2009

Mahesh S/o Subhanrao Kalge )
Age 30 years, Indian Inhabitant of Pune )
residing at 25/C, Panjat Ban Society )
Sudharshan Nagar, Chinchwad Pune – 33. ) .. Petitioner
Vs.
1. The State of Maharashtra )
through Inspector of Incgarge Nigdi )
Police Statin, to be served through Public )
Prosecutor, High Court, Bombay. )

2. Tejashree w/oMahesh Kalge )
residing at House No.1941/E Ward, )
th
Rajarampuri, 12 lane, Kolhapur 416 008. ).. Respondents

Mr.Lokesh Zade i/b. Mr. Rohan Nahar,Advocate for the petitioner.
Mr. Sameer S. Tambekar for respondent No.2.
Mr.S.R.Agarkar,APP, for the State.

CORAM: SMT.SADHANA S.JADHAV, J.
DATE : 27th April, 2017.

JUDGMENT :

The petitioner herein is seeking discharge in Sessions Case

No.939 of 2008 which is pending before the Sessions Judge at Pune.

2. The petitioner herein was charge-sheeted for the offences

punishable under Sections 323, 504, 306, 511 read with Section 34 of the

Indian Penal Code. The petitioner and his mother have been discharged

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under Section 306 of IPC as the complainant is alive and that he was

discharged from the hospital on 28.12.2007. However, this Hon’ble Court,

by an order dated 4.5.2009, had stayed trial and thereafter even after the

petitioner is discharged under section 306 of IPC, the matter has not been

placed before any Judicial Magistrate, First Class for conducting the trial

under Section 498A of IPC

3. The facts of the case in a nutshell are as follows :-

The petitioner herein is a Software Engineer. On 13.7.2005, he

got married to respondent No.2, who also happens to be a Software

Engineer. On 10.10.2006, the couple was blessed with a son. That on

20.12.2007, respondent No.2 had consumed poison when she was residing

in her matrimonial house. Upon learning about the same, respondent No.3

rushed her to the nearest Hospital i.e. Lokmanya Care Hospital at

Chinchwad, Pune. That at the time of admission, the patient was drowsy,

and her blood pressure could not be recorded. The patient was put on

gastric lavage. The patient was intubated. The medical history shows that

on 21.12.2007, when it was revealed that it was a medico-legal case, the

police had reached the hospital. However, the doctor had given the opinion

that the patient is not in a condition to give any statement and will be able

to give her statement in the next 48 hours. It appears from the records that

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thereafter, the patient was admitted in ICU. The police had subsequently

visited the hospital and Dr. Vikas Patil had again given an opinion that the

patient is not in a position to give the statement. The medical case papers

reveal that she was suffering from hypo tension and pupils were dilated. It

also shows that she was put on mechanical ventilation and the information

was given to her husband i.e. the applicant and at the time of ventilation,

the consent of her husband was obtained. It appears from the medical case

history that her pupils were dilated even on the next day and that she was

on medication for considerable period, she continued to be treated in the

ICU for a very long time i.e. for almost one week. On 27.12.2007, she was

removed from the ventilation and her vision was blurred. The patient was

able to give a statement on 28.12.2007.

4. Her statement was recorded in the hospital by PSI of Nigdi

Police Station, she had given a written report alleging therein that she was

living in a joint family after her marriage with the applicant. she was being

harassed and ill-treated by her mother-in-law on various counts. It is

alleged that at the time of marriage, the mother-in-law i.e. respondent No.3

had demanded a Honda City car, whereas the father of respondent No.2 had

gifted an Alto car at the time of marriage. It is further alleged that,

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according to respondent No.3, the said car did not befit their status and

therefore she was being harassed. She was being continuously abused by

her mother-in-law i.e. respondent No.3. That her husband i.e. the present

applicant No.2 was also instigated by his mother and therefore he also

indulged into abusing and extended ill-treatment to his wife. That when the

first informant had left the matrimonial house for the purpose of her first

maternity, the mother-in-law had warned her that she shall return to the

matrimonial house only if her father is able to gift Honda City car. It is

specifically alleged that the present petitioner along with his mother used

to cause mental harassmemt and ill-treatment to his wife to such an extent

that she had no further desire to live and therefore she had consumed the

poison. It is pertinent to note that she has specifically stated that she has no

grievance against father-in-law and sister-in law. She also stated that her

father-in-law used to request her in-law.

5. On the basis of her statement, Crime No.554 of 2007 was

registered at Nigidi Police Station against the petitioner and his mother

i.e. the respondent No.3 for the offence punishable under Sections 323,504,

498A of IPC There is no doubt that the investigating officer has committed

a grave error in charge sheeting the applicant and his mother for the offence

punishable udner Section 306 of IPC and at present the applicant and his

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mother are being prosecuted for the offence punishable under section 498A

of the IPC.

6. The learned counsel for the petitioner submits that in fact, the

complainant and her father had not gifted any vehicle much less the Alto

Car at the time of marriage and that the petitioner and his mother are being

falsely implicated for the same. The learned counsel has placed on record

an application addressed by the father of the petitioner to Public

Information Officer i.e. the Commissioner of Police, Pune, under the

provisions of the Right to Information Act, 2005. A question was put as to

whether Alto car was registered etc. The Addl. Police Commissioner has

informed the petitioner that the police had enquired with the first informant

about relevant documents to show that Alto Car was gifted and there was no

reply. It is on the basis of this information, that the learned counsel submits

that the allegations in the first information report are false an that they are

foisted upon the present petitioner and his mother.

6. In the application dated 21.3.2009, the father of the petitioner

has questioned the Public Information Officer in th following words :-

“6. As per law, person who attempts to commit
suicide is guilty of the offence under section 309 IPC, so
what is the reason for not filing a case against Tejashree
Kalge under section 309 IPC though she and her relatives

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are accepting offence ? Which special provision or law
caused hindrance to N.G.Babar ? Please provide
justification.

7. According to IO N,.G.Babar, Shakuntala Kalge
and other alleged provoked Tejashree Kalge to commit
suicide. So what was the intention of Shakuntala Kalge to
hospitalize Tejashree Kalge and initiate the speedy
treatment ?

8. An authorization and treatment papers are duly
signed by Mahesh for tejashree Kalge treatment in
“Lokmanya Care Hospital” and even all medical bills and
hospital cost are incurred by him so what was his intention
in helping Tejashree Kalge ini hospital treatment ? Does
Lokmanya Care Hospital too assist in abetting suicide
according to theory of IO N,.G. Babar ? Please provide
justification with legal reference.”

The father of the petitioner had sought for information in respect of

the said documents showing purchase of car and the same being

gifted to the petitioner.

7. The learned counsel for the petitioner submits that the

allegations against the present petitioner and the respondent No.3 are

foisted upon them and that they are falsely implicated. It is also

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submitted that there are various applications in matrimonial disputes

pending between the parties. That according to the learned counsel,

the petitioner herein deserves to be discharged under Section 498A

of IPC

8. The learned counsel has placed implicit reliance upon a

Judgment of the Hon’ble Apex Court in the case of Preeti Gupta

and Anr. vs. State of Jharkhand and Anr. AIR 2010 SC 3363. The

Hon’ble Supreme Court had observed :-

“At the same time, rapid increase in the number of
genuine cases of dowry harassment are also a matter of
serious concern.

The courts have to be extremely careful and cautious
in dealing with these complaints and must take pragmatic
realities into consideration while dealing with matrimonial
cases.”

In the above case, the appellant before the Hon’ble Apex Court was a

married sister-in-law, who was a permanent resident of Navsari, Surat,

Gujarat. Gaurav who was a permanent resident of Goregaon, Maharashtra

is an unmarried brother-in-law of the complainant. The alleged incidents of

physical assault, ill-treatment and demand for car had taken place at Kanpur

or Mumbai. While appreciating the facts of the case, the Hon’ble Apex

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Court had taken into consideration the factual aspect to determine as to

whether the prosecution of the appellants therein was an abuse of process

of law. The Hon’ble Apex Court observed – “According to the averment of

the complaint, except for the demand of the luxury car no incident of

harassment took place at Ranchi.” The Hon’ble Apex Court had also

observed that both the appellants before the Hon’ble Apex Court had never

spent any time with the respondent No.2 i.e. the complainant. There was

no allegation against the said appellants in the complaint.

9. The learned counsel has also placed reliance upon an order passed by

this Court in the case of Vinod Rajkrishan Kaushik Ors. vs. State of

Maharashtra (Cri. W.P. No.312 of 2014) seeking discharge under Section

498A of IPC. Upon perusal of both the judgments, it is clear that the

accused had not been discharged in the similar circumstances.

10. As far as the present case is concerned, it is apparent on the

face of record that in fact, the harassment meted out to the first informant

was of such degree that an educated girl had chosen to commit suicide

rather than fight against it. That the first informant was being harassed and

ill-treated by her mother-in-law. However, her husband also joined his

mother in harassing the first informant.

11. Section 498A has been taken on the statute only to save girls

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from physical and mental harassment at the hands of the in-laws. There is

no doubt that the said provisions are being abused only to ventilate their

grievances and see that husbands and in-laws are taken into custody since

Section 498A is a non-bailable offence. However, the Court cannot apply

the same yardstick to all complaints filed by the victims. That in a given

case, the Court will be doing injustice in the eventuality that the yardstick is

generally applied in all cases.

12. In the present case, it is a matter of record that harassment

was of such a nature that she had chosen to commit suicide. In fact, on

humanitarian grounds, the petitioner and his mother had taken her to the

hospital and had treated her. It cannot be said that they were doing some

favour to her by not allowing her to die. The mental trauma that the victim

had to undergo after she had given birth to a child is writ large. The

incident has occurred within seven years of marriage. There was a demand

for dowry and the complainant had attempted to commit suicide. There is

no scope to presume that there could be false implication. The

inconsistencies in the charge-sheet can be considered at the time of trial.

13. The learned counsel for the petitioner submits that they had

serious grievance against the Investigating Officer who had joined hands

with the complainant to falsely implicate the applicant and his mother. In

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fact, this Court only on the basis of the documents and the compilation of

the charge-sheet, cannot arive at a conclusion that there is false implication.

The statements of the doctor, the investigating officer and the complainant

need to be proved by recording substantive evidence and the same can be

appreciated at the time of trial. Perusing the language of the application

seeking that the victim should be first prosecuted under Section 309 of

IPC, it is clear that the first informant had been victimised in her

matrimonial home. After recording of evidence, the petitioner and his

mother would be liable to give an explanation under Section 106 of the

Indian Evidence Act. The said incident had taken place within 7 years of

marriage and, therefore, by virtue of the mandatory provisions under the

Evidence Act, this Court is bound to presume that the offence was

committed and that there was a demand of dowry.

13. As far as the present case is concerned, there is specific

allegation against the petitioner and his mother and the complainant had

exonerated the father-in-law and sister-in-law.

14. For the abovementioned reasons, the Petition fails. It is

pertinent to note that the petitioner has arraigned his mother as a respondent

in this case. In fact, she is a co-accused. No case for discharge is made out.

Needless to say that the interim relief granted by the order dated 4.5.2009

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stands vacated. The Petition is dismissed.

15. The learned counsel for the petitioner fairly submits that in the

given circumstances, trial needs to be expedited as the alleged offence has

taken place in the year 2007. The learned Magistrate, while framing charge

or while appreciating the evidence, shall not be influenced by the

observations made hereinabove as they pertain to a discharge application.

The trial shall be expedited. The learned Magistrate shall make every

endeavour to conclude the recording of evidence in the present case within

four months from the date of framing of charge.

(SMT. SADHANA S.JADHAV, J.)

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