1 Judg. 160617 apeal 208.04.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.208 of 2004
State of Maharashtra,
through PSO Sewagram,
Tah. and Distt. Wardha. .... Appellant.
-Versus-
Vilas Deoraoji Hiwanj,
aged about 28 years,
R/o.- Selu (Kate), Tah. and Distt.Wardha. .... Respondent.
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Mr. V.P. Maldhure, Additional Public Prosecutor for State.
Mrs. V.P. Thakre, Advocate for respondent.
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Coram : Mrs. Swapna Joshi, J.
th Dated : 16 June, 2017.
ORAL JUDGMENT This appeal has been preferred by the appellant-State against the judgment and order dated 12-01-2004 delivered in Regular Criminal Case No.245 of 2001 by the learned Judicial Magistrate First Class, Wardha, thereby acquitting the respondent of the offence punishable under Section 498A of the Indian Penal Code.
2] I have heard the learned Additional Public Prosecutor for the appellant-State and Mrs.Thakre, the learned Counsel for the respondent- accused.
3] I have carefully gone through the record of the case and the
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2 Judg. 160617 apeal 208.04.odt
impugned judgment and order. After going through the record I find that there is no illegality or perversity in the judgment passed by the learned Judicial Magistrate First Class, Wardha.
4] The brief facts of the prosecution case are that; the accused married with the complainant on 05-05-1998 as per their caste and customs. After marriage the complainant started residing with the accused at Seloo (Kate). It is the case of the prosecution that the accused was suspecting the fidelity of the complainant. He used to abuse her and beat her. He used to ask to bring an amount of Rs.20,000/- from her father. On the occasion of first Diwali festival, when she came to the house of her father, her father gave an amount of Rs. 2500/-. Thereafter, the accused asked to bring Rs.10,000/- to purchase motor pump. Her father gave an amount of Rs.5000/-. However, the accused was beating the complainant for the balance amount. In the month of February, 1999, the complainant went to her father's house along with her brother for the first delivery and she gave birth to a baby girl. Although, the information about the birth of child was given to the accused he did not meet the complainant. The brother of the complainant took her to the house of the accused. However, accused refused to keep her in his house. After few days the complainant came to know that the accused is going to perform the second marriage. The complainant, therefore, rushed to the Police Station and lodged the complaint against the accused. The offence was registered under Section 498A of the Indian Penal Code. The charge- sheet was filed. The learned Judicial Magistrate First Class framed the ::: Uploaded on - 20/06/2017 ::: Downloaded on - 21/06/2017 00:30:58 ::: 3 Judg. 160617 apeal 208.04.odt charge against the accused under Section 498A of the Indian Penal Code. 5] During the course of trial, the prosecution examined in all seven witnesses; (PW-1) Madhuri Hiwanj is the complainant, (PW-2) Madhukar Choudhari is the brother of complainant, (PW-3) Annaji Choudhari is the father of complainant, (PW-4) Kamal Choudhari is the mother of complainant, (PW-5) Sanjay Adhau is the neighbour of complainant, (PW-6) Mangesh Wazurkar is the friend of the brother of complainant and (PW-7) Subhash Mohodkar is the Investigating Officer. 6] I have gone through the entire evidence on record and heard the learned Additional Public Prosecutor for the appellant-State and Mrs. Thakre, the learned Counsel for the respondent-accused. The learned Additional Public Prosecutor for the appellant-State contended that the learned trial Judge has not considered the evidence on record and has illegally acquitted the accused, although the cogent evidence was adduced by the witnesses. The learned Counsel for the accused has contended that the learned trial Judge has rightly acquitted the accused. 7] On careful scrutiny of the testimony of the complainant (PW-1), it is noticed that, she has stated that the accused was suspecting her fidelity. PW-2 also stated that the accused was suspecting her character. However, apart from the bare words that "the accused was suspecting the character of his wife", no evidence is led to elaborate the said contention of PW-1 and PW-2. It is difficult to rely upon the bare statement of PW-1 and her brother. PW-1 stated on the point of demand that the accused asked her to bring an amount of Rs.20,000/- from the house of her father. ::: Uploaded on - 20/06/2017 ::: Downloaded on - 21/06/2017 00:30:58 :::
4 Judg. 160617 apeal 208.04.odt Her father gave an amount of Rs.2500/-. The accused continued to ill- treat her for the remaining amount. At the time of Diwali festival her husband asked her to bring the amount of Rs.10,000/- for purchasing motor pump. Her father gave an amount of Rs.5000/-. The accused still continued beating her for the demand of Rs.10,000/-. During the cross examination PW-1 has specifically stated that, the amount was not demanded from her father. She also admitted that no report was lodged by her for the demand of the said amount. She further admitted that no notice was issued to the accused to take her back to her matrimonial house as well as for the demand of the said amount. She also admitted that she has not stated about the said fact to anyone. On careful scrutiny of the testimony of PW-1 she does not appear to be reliable and trustworthy witness. It appears from the testimony of PW-1 that the accused has made a demand of amount prior to her delivery. After the said demand, the PW-1 went to her parents house. She delivered a baby girl and after she came to know that the accused is going to marry for second time, she has lodged the present complaint. The question remains that as to why she has not immediately lodged the complaint, when the accused demanded the amount of Rs. 20,000/- and the further amount of Rs.10,000/-. So far as the demand of Rs.10,000/- for purchasing motor pump is concerned, it appears that, at the relevant time, the accused was in need of amount, therefore, must have demanded the said amount. However, it is not the consistent case of PW-1 that for the said demand the accused used to beat her. As far as the testimony of ::: Uploaded on - 20/06/2017 ::: Downloaded on - 21/06/2017 00:30:58 ::: 5 Judg. 160617 apeal 208.04.odt PW-2 the brother of the complainant is concerned, he has stated about the same fact as stated by PW-1 as far as the demand is concerned. PW-3 is the mother and PW-4 is the father of the victim. Their version is also corroborated with the testimony of PW-1 on the point of alleged demand. However, PW-3 in his cross examination admitted that she has not stated about the said demand to anyone and so also she did not lodge complaint with the Police Station. The cross examination of PW-4 who is the father of the victim reveals that the victim stayed with the accused for about 8 to 9 months. According to him, the accused used to demand money from the victim. He, however, admitted that he had not lodged the complaint during the said period for the said demand. He, however, admitted that his daughter used to visit her house time to time. The testimony of PW-5 who is the neighbour of her parents also stated about the alleged demand. It appears that, when PW-1 came to know about the accused that he was performing second marriage, the present complaint for cruelty has been lodged by her.
8] It is significant to note that the complainant has delivered a child on 11-02-1999. Since then, the complainant was residing at her parents house. Three years after the delivery of the child the complainant proceeded to the Police Station and lodged the complainant in respect of the alleged demand prior to the delivery of her child. It appears that the only reason was that as there was apprehension in the mind of the complainant that the accused was getting married for second time, the complainant has lodged the complaint against the accused. There is no ::: Uploaded on - 20/06/2017 ::: Downloaded on - 21/06/2017 00:30:58 ::: 6 Judg. 160617 apeal 208.04.odt cogent and convincing evidence on record to prove the guilt against the accused. The learned trial Judge has rightly acquitted the accused of the aforesaid charge.
9] 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.
10] There are no sufficient grounds made out by the appellant/State to interfere with the impugned judgment and order. In these circumstances, the appeal deserves to be dismissed and accordingly it is dismissed.
JUDGE Deshmukh ::: Uploaded on - 20/06/2017 ::: Downloaded on - 21/06/2017 00:30:58 :::