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

Criminal Appeal No. 23 of 2004

State of Maharashtra
through PSO Dhamangaon (Badhe),
Tq. Motala, Distt-Buldana. …. Appellant.

-Versus-

Kailas Kashinath Vairalkar,
aged about 34 years,
R/o.-Kinhola, Distt. Buldana. …. Respondent.

————————————————————————————————–
Shri S.M. Ukey, Addl. P.P. for State.
None for the respondent.
————————————————————————————————–
Coram : Mrs. Swapna Joshi, J.

th
Dated : 29
May, 2017.

ORAL JUDGMENT

This appeal has been preferred against the judgment and order

dated 13-08-2003 delivered in Regular Criminal Case No.141 of 1993 by

the learned Judicial Magistrate First Class, Malkapur, there by acquitting

respondent-Kailas Kashinath Vairalkar for the offences punishable under

Sections 498A and 342 of the Indian Penal Code.

2] Heard the learned Additional Public Prosecutor for the appellant-

State. The learned Counsel for the respondent-accused remained absent.

I have gone through the record of the case and the impugned judgment

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and order.

3] The learned Additional Public Prosecutor for the State contended

that the acquittal of the respondent recorded in this case by the learned

Judicial Magistrate First Class, Malkapur is perverse and illegal. He

further stated that the learned Judicial Magistrate First Class, Malkapur

failed to consider the testimonies of the witnesses; (PW-3) Pundlikrao

Patil, (PW-4) Pundlik Mahajan, (PW-5) Dwarkabai and (PW-6) Jagatrao

Patil mainly on the ground of cruelty to (PW-5) Dwarkabai.

4] I have gone through the entire evidence. The prosecution has

examined in all seven witnesses. (PW-1) Nivruttin and (PW-2) Santosh

are the panch witnesses on the point of spot panchanama, who had not

supported the case of the prosecution. (PW-3) Pundlikrao Patil is the

grandfather of the victim. (PW-4) Pundlik Mahajan is an independent

witness who accompanied PW-3 to the house of the victim. (PW-5)

Dwarkabai is the victim herself. (PW-6) Jagatrao is the father of victim.

(PW-7) Sonaji is the Investigating Officer.

5] The prosecution case in brief is that; accused no.1-Kailas got

married with (PW-5) complainant Sau. Dwarkabai on 04-05-1992. It is

alleged that, various articles were presented by the parents of the

complainant in the said marriage. After marriage the complainant started

cohabiting with respondent/accused no.1 at her matrimonial house. It is

the specific allegation of the complainant that respondent/accused no.1

along with other accused who were his relatives, used to demand

Refrigerator and T.V. set to her or in the alternative an amount of

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Rs. 25,000/-. The accused no.1 along with other accused used to beat

her and keep her starving so that their demand should be fulfilled. It is

further alleged that accused no.1 along with other accused used to

confine the complainant on the upper storey of the house without food.

The another allegation of the complainant against accused no.1 is that he

used to insist her for giving divorce to him so that he could perform

second marriage. It is the case of the prosecution that on 13-03-1993, one

Sopan Kolhe went to the house of the complainant’s father and told him

that the complainant was sick. Therefore, the complainant’s grandfather

(PW-3) Pundlikrao Patil along with one (PW-4) Pundlikrao Mahajan and

three other persons proceeded to the house of the complainant’s

matrimonial house. On 14-03-1993, they reached there at about 10.00

am. They noticed that the complainant was confined on the upper storey

of the house. She was not allowed to speak with them. Therefore, they

called few people from the locality. However, the complainant was not

allowed to meet them and they were asked to fulfill their demands first

and thereafter, they would allow the complainant to leave their house.

They also demanded the divorce from the complainant. It is further

alleged that the accused persons did not allow the father of the

complainant and the other persons who accompanied him to take the

complainant with them and therefore they were constrained to return back

to their village. It is alleged that the complainant was again severely

beaten after her grandfather and the other persons who accompanied

him left her matrimonial house. On 16-03-1993, accused Kundan went to

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the house of the complainant’s uncle and told him that accused no.1 was

coming with the complainant on 17-03-1993. On 18-03-1993, accused

no.1 left the complainant in front of the house of her uncle. It is further

alleged that the complainant’s child was aborted by accused no.1 against

her wish and on 28-03-1993 accused no.1 came with a zerox copy of a

stamp paper at the house of the complainant’s uncle and informed him

that he divorced the complainant and he would perform second marriage

after one month. On 30-03-1993, Police complaint came to be lodged

against all the accused persons. A formal investigation was carried out.

The statements of the witnesses were recorded and the charge-sheet

came to be filed.

6] After going through the testimonies of relevant witnesses i.e.

(PW-5) complainant Dwarkabai, (PW-3) Pundlikrao Patil, (PW-4) Pundlik

Mahajan and (PW-6) Jagatrao, it is noticed that, there is corroboration in

their testimonies on the aspect that the accused no.1 beat her confine

her in a room used to demand colour T.V. Refrigerator. Accused no.1

used to insist the victim for giving divorce. Significantly the victim stated in

her cross examination that her grandfather enquired with her whether she

is ready to go with him, on the date of alleged confinement incident. The

said denial of the victim to go with her grandfather others who

accompanied him creates a doubt whether in fact victim was confined.

Victim also admitted that she spoke with her grandfather other relatives

after she came down on the ground floor. It is not clear as to why victim

did not immediately complain to her relatives about the alleged

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confinement that accused no.1 asked her to give divorce terminate

pregnancy he beat her. The unnatural conduct of the victim makes the

prosecution case doubtful.

7] It is noticed that, apart from accused no.1 who is the husband of the

complainant, the other relatives of accused no.1 are also implicated in the

offence of cruelty. No specific allegations are made against the accused

persons separately and general allegations are made against them. It is

noticed that there is unexplained delay in lodging the complaint. The

alleged incident of confinement of the victim had taken place on

18-03-1993, whereas the divorce papers were taken by accused no.1

allegedly to the uncle of the victim on 28-03-1993 and thereafter only to

implicate the accused persons complaint came to be lodged on

30-03-1993. It is not clear that when the incident of confinement was

witnessed by so many witnesses allegedly on 18-03-1993 then why the

complaint was not lodged immediately and why it was lodged after a long

time i.e on 30-03-1993. It has come in the testimony of (PW-3)

Pundlikrao Patil, the grandfather of the victim that the amount of

Rs.10,000/- was handed over to the mother-in-law of the victim as she

was suffering from Cancer and the said amount as demanded by him but

it was not returned to him. It appears that, due to the said transaction the

report came to be lodged. Similarly, there is a serious allegation of

termination of pregnancy of the complainant, however, there is no medical

evidence on record to show that the victim was carrying pregnancy at the

relevant time and it was terminated as insisted by accused no.1.

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8] Similarly, so far as the allegation that the victim was confined on

the upper storey of the house, (PW-4) an independent witness stated that,

the victim said that she would not come out of the room unless, her

husband comes home. This version itself indicates that the victim was

not confined on the upper storey, but she herself was on that floor.

9] Thus, all the relevant witnesses appeared to be tutored witnesses

and it appears that due to the monetary transaction the relations between

the accused persons and the parents of the victim were strained and

therefore the accused no.1 was falsely implicated in the present case.

10] It is necessary for the prosecution to prove that the accused no.1

subjected the complainant to cruelty with a view to coerce her to meet an

unlawful demand, in order to prove the offence punishable under Section

498A of the Indian Penal Code. However, the prosecution failed to prove

the said offence. As far as the allegation of confinement is concerned,

the prosecution also failed to prove that the accused no.1 confined the

complainant unlawfully.

11] I do not find any illegality or perversity in the judgment passed by

the learned trial Judge. It is well settled principle of law that in exercise of

its appellate jurisdiction particularly in appeal against acquittal, it is not

open to this Court to substitute its own view with a view taken by the lower

Court, unless the view taken by the lower Court is illegal, perverse or

against the principle of law.

12] There are no sufficient grounds made out by the appellant/State to

interfere with the impugned judgment and order. In these circumstances,

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the appeal deserves to be dismissed and accordingly it is dismissed.

JUDGE

Deshmukh

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