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The State Of Maharashtra vs Ashok @ Ramchandra Bhikaji & Ors on 26 February, 2020

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.693 OF 2004
The State of Maharashtra )
(Through Shahapur Police Station) ) ….Appellant/Complainant
V/s.
1. Ashok @ Ramchandra Bhikaji Wagh, )
Age 35 years, R/at. Shivajinagar, Raikarpada, )
Vasind, Taluka – Shahapur )
2. Kisan Bhikaji Wagh, )
Age 42 years, R/at. Shivajinagar, Raikarpada, )
Vasind, Taluka – Shahapur )
3. Jagannath Narayan Sonavane, )
Age 58 years, R/at. Shivajinagar, Raikarpada, )
Vasind, Taluka – Shahapur )
4. Sau. Vatsala Jagannath Sonavane, )
Age 50 years, R/at. Shivajinagar, Raikarpada, )
Vasind, Taluka – Shahapur )
5. Sau. Asha @ Shraddha Ashok Wagh, )
Age 25 years, R/at. Shivajinagar, Raikarpada, )
Vasind, Taluka – Shahapur )
6. Shankar Ramchandra Namde, )
Age 50 years, R/at. Kone, Taluka – Wada, )
District – Thane )
7. Sulochana Shankar Namde, )
Age 45 years, R/at. Kone, Taluka – Wada, )
District – Thane ) ….Respondents/Accused
—-
Ms. Pallavi Dabholkar, APP for State – Appellant.
Ms. Ankita Singhania, Advocate appointed as Amicus Curiae.
—-
CORAM : K.R.SHRIRAM, J.
DATE : 26th FEBRUARY 2020
ORAL JUDGMENT :
1 This is an appeal impugning an order and judgment dated

17th February 2004 passed by the Judicial Magistrate, Fist Class, Shahapur,

acquitting the accused of offences punishable under Section 498-A (Husband

or relative of husband of a woman subjecting her to cruelty ), Section 323

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(Punishment for voluntarily causing hurt), 504 (Intentional insult with

intent to provoke breach of the peace), 506 (Punishment for criminal

intimidation), 494 (Marrying again during lifetime of husband or wife ) read

with Section 109 (Punishment of abetment if the act abetted is committed in

consequence and where no express provision is made for its punishment ) of

Indian Penal Code (IPC).

2 On 21st February 2020 since nobody was present in Court

representing respondents, the Court appointed Ms. Ankita Singhania, an

Advocate, as Amicus Curiae. At the request of Ms. Ankita Singhania, as she

wanted to consider the papers, the matter was stood over to today. Even

today, nobody is present for respondents though the cause list shows the

name of Advocate Mr. I.A. Bagaria and Ms. Uma I. Bagaria for respondent

nos.1 to 4, 6 and 7. Before I proceed with the case, I must express my

appreciation for the assistance rendered and endeavour put forth by

Ms. Ankita Singhania, learned Amicus Curiae.

3 It is prosecution’s case that complainant – Surekha Ashok Wagh

(PW-1) got married to Ashok @ Ramchandra Bhikaji Wagh (accused no.1)

on 27th June 1990 as per Hindu rites and rituals at Nashik. After marriage,

they lived in the matrimonial home at Vasind and led a very happily married

life. There were other family members in the matrimonial home, which

included the brother of accused no.1, sister of accused no.1, her husband etc.

and all were doing business of selling vegetables. Accused no.5 is alleged to

be the second wife of accused no.1 and accused nos.6 and 7 are her parents.

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During her stay with accused no.1, PW-1 gave birth to two children, a boy, who

in the year 2003 was 8 years old and a girl, who in the year 2003 was

11 years old. Therefore, the boy would be today 25 years and the girl would be

28 years.

4 The father of complainant retired from H.A.L. on 28 th February

2001 and he was working in H.A.L. as Driver. At the time of retirement,

complainant’s father, who is PW-2 – Sadashiv Jagannath Pawar, received

retirement benefits, which accused no.1 came to know about. It is alleged that

accused no.1 was of a greedy nature and also used to suspect PW-1 of

immorality. According to PW-1, at the time of marriage and thereafter, various

household appliances, gold, cash of Rs.50,000/- were all given to accused no.1

within a period of three months of marriage and the other accused, i.e.,

accused nos.2 to 4 were instigating accused no.1 against PW-1 and accused

nos.1 to 4 were harassing and ill-treating her.

5 It seems on 28th February 2001, when PW-2 retired, accused no.1

saw the cheque of retirement benefits and accused no.1 demanded PW-1 to get

Rs.1 lakh from her father. PW-1 was completely helpless because her father

(PW-2) had to conduct the marriage of her brother. Notwithstanding that,

accused no.1 used to mentally and physically harass complainant.

6 Accused no.1 got married to accused no.5 on 21 st December

2003 at Siddhivinayak Temple, Palghar, while he was and he is still married

to PW-1. Therefore, PW-1 decided to lodge this complaint and after

due investigation, chargesheet was filed. All accused pleaded not guilty

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and claimed to be tried. Statement of all accused under Section 313 of the

Code of Criminal Procedure was also recorded and the defence is of total

denial.

7 Accused no.1 says that the complaint has been lodged at the

instigation of PW-3, who is in service of police department. The same stand is

taken by all the other accused.

8 The Apex Court in Ghurey Lal V/s. State of U.P. 1 has culled out the

factors to be kept in mind by the Appellate Court while hearing an appeal

against acquittal. Paragraph Nos.72 and 73 of the said judgment read as under:

72. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against
acquittal under sections 378 and 386 of the Criminal Procedure
Code, 1973. Its power of reviewing evidence is wide and the
appellate court can reappreciate the entire evidence on record. It

can review the trial court’s conclusion with respect to both facts and
law.

2. The accused is presumed innocent until proven guilty.

The accused possessed this presumption when he was before the
trial court. The trial court’s acquittal bolsters the presumption that
he is innocent.

3. Due or proper weight and consideration must be given to the
trial court’s decision. This is especially true when a witness’
credibility is at issue. It is not enough for the High Court to take a
different view of the evidence. There must also be substantial and
compelling reasons for holding that trial court was wrong.

73. In light of the above, the High Court and other appellate courts
should follow the well settled principles crystallized by number of
judgments if it is going to overrule or otherwise disturb the trial
court’s acquittal:

1. The appellate court may only overrule or otherwise disturb the
trial court’s acquittal if it has “very substantial and compelling
reasons” for doing so.

1. (2008) 10 SCC 450

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A number of instances arise in which the appellate court would
have “very substantial and compelling reasons” to discard the trial
court’s decision. “Very substantial and compelling reasons” exist
when:

i) The trial court’s conclusion with regard to the facts is palpably
wrong;

ii) The trial court’s decision was based on an erroneous view of law;

iii) The trial court’s judgment is likely to result in “grave miscarriage
of justice”;

iv) The entire approach of the trial court in dealing with the
evidence was patently illegal;

v) The trial court’s judgment was manifestly unjust and
unreasonable;

vi) The trial court has ignored the evidence or misread the material
evidence or has ignored material documents like dying
declarations/ report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and
consideration to the findings of the trial court.

3. If two reasonable views can be reached – one that leads to
acquittal, the other to conviction – the High Courts/appellate courts
must rule in favour of the accused.

The Apex Court in many other judgments including Murlidhar

Ors. V/s. State of Karnataka2 has held that unless, the conclusions reached by

the trial court are found to be palpably wrong or based on erroneous view of

the law or if such conclusions are allowed to stand, they are likely to result in

grave injustice, Appellate Court should not interfere with the conclusions of

the Trial Court. Apex Court also held that merely because the appellate court

on re-appreciation and re-evaluation of the evidence is inclined to take a

different view, interference with the judgment of acquittal is not justified if

the view taken by the trial court is a possible view.

2. (2014) 5 SCC 730

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We must also keep in mind that there is a presumption of

innocence in favour of respondent and such presumption is strengthened by

the order of acquittal passed in his favour by the Trial Court.

The Apex Court in Ramesh Babulal Doshi V/s. State of Gujarat 3

has held that if the Appellate Court holds, for reasons to be recorded that the

order of acquittal cannot at all be sustained because Appellate Court finds

the order to be palpably wrong, manifestly erroneous or demonstrably

unsustainable, Appellate Court can reappraise the evidence to arrive at its

own conclusions. In other words, if Appellate Court finds that there was

nothing wrong or manifestly erroneous with the order of the Trial Court, the

Appeal Court need not even re-appraise the evidence and arrive at its own

conclusions.

9 Admittedly, complainant (PW-1) led a very happily married life

with accused no.1. Their date of marriage is 27 th June 1990 and PW-1 left

the matrimonial home on 28th March 2001. As per PW-1, accused was given

lot of gold, household appliances and Rs.50,000/- within three months of her

marriage, which means that these things were given in the year 1990. There

is no explanation as to why the complaint was then lodged only on

4th January 2002. According to PW-1, accused no.1 demanded Rs.1 lakh

when he saw the retirement benefits cheque in the hand of her father and

her father retired on 28th February 2001. The complaint has been lodged on

4th January 2002. The delay is not explained. Moreover, complainant left the

house leaving behind her children, who were on the date she left the house

3. 1996 SCC (cri) 972

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were 9 years and 6 years, respectively. PW-1 never filed any custody petition

or any petition for divorce. PW-1 filed maintenance petition on 10 th March

2003. The delay again has not been explained.

10 It is settled law that delay in lodging the complaint cannot be

used as a ritualistic formula for doubting the prosecution case and discarding

the same solely on the ground of delay in lodging the complaint. At the same

time, delay has the effect of putting the Court in its guard to search if any

explanation has been offered for the delay, and if offered, whether it is

satisfactory. If prosecution fails to satisfactorily explain the delay, the delay

could be fatal to prosecution. Learned Amicus tenders a copy of judgment of

the Apex Court in State of Himachal Pradesh V/s. Gian Chand 4, in which

paragraph 12 reads as under :

12. Delay in lodging the FIR cannot be used as a ritualistic formula
for doubting the prosecution case and discarding the same solely
on the ground of delay in lodging the first information report.
Delay has the effect of putting the Court in its guard to search if
any explanation has been offered for the delay, and if offered,
whether it is satisfactory or not. If the prosecution fails to
satisfactorily explain the delay and there is possibility of
embellishment in prosecution version on account of such delay, the
delay would be fatal to the prosecution. However, if the delay is
explained to the satisfaction of the court, the delay cannot by itself
be a ground for disbelieving and discarding the entire prosecution
case. In the present case, PW1__the mother of the prosecutrix is a
widow. The accused is a close relation of brother of late husband
of PW1. PW1 obviously needed her family members consisting of
her in-laws to accompany her or at least help her in lodging the
first information report at the police station. The incident having
occurred in a village, the approach of the in-laws of PW1 displayed
rusticity in first calling upon the father of the accused and
complaining to him of what his son had done. It remained an
unpleasant family affair on the next day of the incident which was
tried to be settled, if it could be, within the walls of family. That
failed. It is thereafter only that the complainant, the widow
woman, left all by herself and having no male family member
willing to accompany her, proceeded alone to police station. She
was lent moral support by Ruldu Ram, the village Panch,

4. (2001) 6 SCC 71

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whereupon the report of the incident was lodged. The sequence of
events soon following the crime and as described by the
prosecution witnesses sounds quite natural and provides a
satisfactory explanation for the delay. It was found to be so by the
learned Sessions Judge. The High Court has not looked into the
explanation offered and very superficially recorded a finding of the
delay having remained unexplained and hence fatal to the
prosecution case. It is common knowledge and also judicially
noted fact that incidents like rape, more so when the perpetrator
of the crime happens to be a member of the family or related
therewith, involve the honour of the family and therefore there is
a reluctance on the part of the family of the victim to report the
matter to the police and carry the same to the court. A cool
thought may precede lodging of the FIR. Such are the observations
found to have been made by this Court in State of Punjab Vs.
Gurmit Singh Ors., (1996) 2 SCC 384 and also in the case of
Harpal Singh (1981) SCC Crl. 208. We are satisfied that the delay
in making the FIR has been satisfactorily explained and therefore
does not cause any dent in the prosecution case.

11 In this case, there is not even an attempt by the prosecution to

explain the delay. It appears that PW-1 had no problems living alone with her

parents but when PW-1 heard from her father that accused no.1 has married

accused no.5 (which again has not proved), PW-1 decided to teach accused

no.1 a lesson. It is unfortunate that in matters like this even the family

members are getting dragged. Prosecution should refrain from dragging all

family members unless there is enough specific evidence against the family

members otherwise provisions of Section 498-A will unfortunately be

misused as a weapon.

12 The Apex Court in Rajesh Sharma and Ors. V/s. State of Uttar

Pradesh and Anr. 5 in paragraph 19 gave directions as under :

19. Thus, after careful consideration of the whole issue, we
consider it fit to give following directions :-
19.1. In every district one or more Family Welfare Committees be
constituted by the District Legal Services Authorities preferably
comprising of three members. The constitution and working of
such committees may be reviewed from time to time and at least

5. (2018) 10 SCC 472

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once in a year by the District and Sessions Judge of the district who
is also the Chairman of the District Legal Services Authority.
19.2. The Committees may be constituted out of para legal
volunteers/social workers/retired persons/wives of working
officers/other citizens who may be found suitable and willing.
19.3. The Committee members will not be called as witnesses.
19.4. Every complaint under Section 498A received by the police or
the Magistrate be referred to and looked into by such committee.
Such committee may have interaction with the parties personally
or by means of telephone or any other mode of communication
including electronic communication.

19.5. Report of such committee be given to the Authority by whom
the complaint is referred to it latest within one month from the
date of receipt of complaint.

19.6. The committee may give its brief report about the factual
aspects and its opinion in the matter.

19.7. Till report of the committee is received, no arrest should
normally be effected.

19.8. The report may be then considered by the Investigating
Officer or the Magistrate on its own merit.

19.9. Members of the committee may be given such basic minimum
training as may be considered necessary by the Legal Services
Authority from time to time.

19.10. The Members of the committee may be given such
honorarium as may be considered viable.

19.11. It will be open to the District and Sessions Judge to utilize
the cost fund wherever considered necessary and proper.
19.12. Complaints under Section 489A and other connected
offences may be investigated only by a designated Investigating
Officer of the area. Such designations may be made within one
month from today. Such designated officer may be required to
undergo training for such duration (not less than one week) as
may be considered appropriate. The training may be completed
within four months from today;

19.13. In cases where a settlement is reached, it will be open to the
District and Sessions Judge or any other senior Judicial Officer
nominated by him in the district to dispose of the proceedings
including closing of the criminal case if dispute primarily relates to
matrimonial discord;

19.14. If a bail application is filed with at least one clear day’s
notice to the Public Prosecutor/complainant, the same may be
decided as far as possible on the same day. Recovery of disputed
dowry items may not by itself be a ground for denial of bail if
maintenance or other rights of wife/minor children can otherwise
be protected. Needless to say that in dealing with bail matters,
individual roles, prima facie truth of the allegations, requirement of
further arrest/ custody and interest of justice must be carefully
weighed;

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19.15. In respect of persons ordinarily residing out of India
impounding of passports or issuance of Red Corner Notice should
not be a routine;

19.16. It will be open to the District Judge or a designated senior
judicial officer nominated by the District Judge to club all
connected cases between the parties arising out of matrimonial
disputes so that a holistic view is taken by the Court to whom all
such cases are entrusted;

19.17. Personal appearance of all family members and particularly
outstation members may not be required and the trial court ought
to grant exemption from personal appearance or permit
appearance by video conferencing without adversely affecting
progress of the trial.

19.18. These directions will not apply to the offences involving
tangible physical injuries or death.

13 It is alleged that accused no.1 got married to accused no.5 at

Siddhivinayak Temple but in her cross examination, PW-1 says it is her father

(PW-2) who informed her. Therefore, the evidence is based on hearsay.

Moreover, prosecution is relying on a receipt issued by the Siddhivinayak

Temple, which is at Exhibit 43. That is only a receipt of having received a

donation of Rs.501/- from accused no.1. Therefore, even the allegation of

offence under Section 494 of IPC has not been proved.

14 Considering all these factors, the Trial Court has acquitted all

the accused. Therefore, I see no reason to interfere in the impugned

judgment.

15 There is an acquittal and therefore, there is double presumption

in favour of the accused. Firstly, the presumption of innocence available to

the accused under the fundamental principle of criminal jurisprudence that

every person shall be presumed to be innocent unless they are proved guilty

by a competent court of law. Secondly, accused having secured their

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acquittal, the presumption of their innocence is further reinforced,

reaffirmed and strengthened by the Trial Court. For acquitting the accused,

the Trial Court rightly observed that the prosecution had failed to prove its

case.

16 In the circumstances, in my view, the opinion of the Trial Court

cannot be held to be illegal or improper or contrary to law. The order of

acquittal, in my view, need not be interfered with.

17                Appeal dismissed.

18 High Court Legal Services Committee to award fees of the

learned Amicus Curiae fixed at Rs.10,000/-.

(K.R. SHRIRAM, J.)

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