State Of Maha vs Suresh Pandharinath Solunke & Ors
2017 Latest Caselaw 5187 Bom

                                          1           Cri-appeal-195-04


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD
                                
                CRIMINAL APPEAL NO.195 OF 2004

The State of Maharashtra,
(through P.S.O., Zilla Peth P.S.)
Jalgaon                                               ..Appellant

                 Vs.

1. Suresh Pandharinath Solunke,
   Age : 31 years, 
   Occ. Rikshaw Driver

2. Sau.Indubai Pandharinath Solunke,
   Age : 50 years, Occ. Household,
   
   Both r/o. Shiv Colony, Jalgaon    ..Respondents

 
                         --
Ms.R.P.Gaur, APP for appellant - State

Mr.H.F.Pawar, Advocate for respondents
                         --

                                   CORAM :  SANGITRAO S. PATIL, J. 
                                   DATE  :  JULY 28, 2017

JUDGMENT :

This is an appeal against the judgment

and order dated 18.11.2003 passed in Regular

Criminal Case No.515 of 2002 by the learned

Judicial Magistrate F.C., Jalgaon, acquitting the

2 Cri-appeal-195-04

respondents of the offence punishable under

Section 498-A of the Indian Penal Code ("I.P.C.",

for short).

2. Respondent no.1 is the husband, while

respondent no.2 is the mother-in-law of the

informant namely, Alaknanda. The informant married

to respondent no.1 in the year 1993. She has

begotten a daughter namely, Vaishali out of the

said wedlock, who was aged about 8 years in the

year 2002. It is alleged that the respondents

always used to ask the informant to bring

Rs.50,000/- from her father so as to enable

respondent no.1 get job. They used to ill-treat

her with a view to compel her to fulfill their

demand for money. They subjected the informant to

cruelty during the period from 17.07.2001 to

21.08.2002 in connection with the demand for

money. On 17.07.2001, the respondents beat the

informant and drove her out of their house. She

had sustained injuries to her eye due to that

3 Cri-appeal-195-04

beating. The respondents further beat the

informant by fists and kicks on 27.6.2002. She was

required to take medical treatment from

Dr.Sarojini Patil due to that beating. The

respondents gave electric shock to the informant

and threatened her of death on 13.08.2002.

Ultimately, on 16.08.2002 they beat her on thigh

and back, hurled abuses against her and threatened

her to continue to illtreat her until their demand

for Rs.50,000/- was fulfilled. The informant then

lodged a report against the respondents on

26.08.2002 in Zilla Peth Police Station, at

Jalgaon. The statements of the witnesses were

recorded and after completion of investigation,

the respondents came to be prosecuted for the

above-mentioned offence.

3. The prosecution examined the informant at

Exh.22, her father - Dashrath (PW 2)(Exh.31) and

the Police Head Constable Sonar (PW 3) (Exh.35),

who conducted investigation. After evaluating the

4 Cri-appeal-195-04

evidence of the witnesses, the learned trial Judge

held that the prosecution failed to prove against

the respondents the above-mentioned offence. He,

therefore, acquitted them of the said offence.

4. The learned A.P.P. for the prosecution-

State submits that there is specific and positive

evidence of the informant, which is corroborated

by the evidence of her father Dashrath (PW 2) on

the point of the illtreatment meted out to her by

the respondents for fulfilling their unlawful

demand of Rs.50,000/-. There were certain letters

written by the informant to her father in respect

of the illtreatment that was being suffered by her

at the hands of the respondents. The contents of

those letters fully corroborate the case of the

informant. The learned APP submits that the

learned trial Judge wrongly disbelieved the

evidence of the informant and wrongly acquitted

the respondents. She, therefore, prays that the

impugned judgment and order may be reversed and

5 Cri-appeal-195-04

the respondents may be convicted and sentenced for

the above-mentioned offence.

5. On the other hand, the learned Counsel

for the respondents submits that the informant

herself was not interested in cohabiting with

respondent no.1. She herself had left the company

of respondent no.1. Since she deserted respondent

no.1, he had filed H.M.P. No.215 of 2002 for

restitution of conjugal rights against the

informant. It was decided in favour of respondent

no.1. Despite that, the informant did not resume

cohabitation with respondent no.1. Respondent no.1

then filed H.M.P. No.515 of 2010 seeking divorce

from the informant on the ground of cruelty and

desertion. The said petition came to be decided on

merits on 18.12.2013 and the learned Civil Judge,

Senior Division, Jalgaon, passed a decree of

divorce against the informant on 18.12.2013 on the

ground of desertion. The learned Counsel submits

that the evidence of the informant is full of

6 Cri-appeal-195-04

improvements and exaggerations. She produced

fabricated letters in support of her case, which

have been rightly discarded by the learned trial

Judge. According to him, there is no independent

evidence to support the case of the informant.

Dashrath (PW 2) is an interested witness. He

submits that the learned trial Judge has rightly

acquitted the respondents of the above-mentioned

offence.

6. The informant has stated about the

alleged ill-treatment meted out to her by the

respondents in her examination-in-chief. However,

in her cross-examination, she accepted non-mention

of many of these facts in her report Exh.23.

These omissions have been proved through the

evidence of P.H.C. Sonar (PW 3), who recorded the

FIR (Exh.). The following are the material

omissions in her evidence :-

(i)            That   the   respondents   used   to   drive   the 





                                   7            Cri-appeal-195-04

informant from their house by pulling her hair.

(ii) The respondents were demanding signatures

of the informant on a blank stamp paper and on her

refusal, they used to beat her.

(iii) The respondents used to beat her by

whatever object that was available to them.

(iv) The respondents pressed her neck.

(v) The respondents used to beat her when she

used to refuse to give divorce to respondent no.1.

(vi) The respondents used to ill-treat the

informant because she delivered a female child.

(vii) Dashrath (PW 2) had come to the house of

the respondents and at that time, the informant

had stated him about the ill-treatment meted out

to her.

(viii) The informant had gone with respondent

no.1 in auto-rickshaw from the place of Mahila

8 Cri-appeal-195-04

Atyachar Samiti and the respondents had beaten her

in the auto-rickshaw itself and then, after

reaching the home also.

(ix) That she had sent letters Exhs.24 to 27

to her parents.

7. The above-mentioned omissions in the FIR

Exh.23 certainly are material omissions. Had the

above-mentioned events as narrated by the

informant really taken place, she would not have

forgotten to mention them in the report Exh.23. It

is, thus, clear that the informant has made

several material improvements in her evidence

before the Court. Consequently, it was highly

risky to rely on her evidence without any

independent corroboration.

8. Dashrath (PW 2) deposed that the

informant had stated him about the ill-treatment

suffered by her at the hands of the respondents.

There is nothing in his evidence to show that the

9 Cri-appeal-195-04

informant was illtreated by the respondents at any

time in his presence. Whatever has been stated by

him about the alleged illtreatment, is solely on

the basis of the information received by him from

the informant. When the evidence of the informant

in the absence of any independent evidence is not

believable, the evidence of Dashrath (PW 2), which

is based on the evidence of the informant, also

cannot be believed without any independent

evidence.

9. The informant has produced letters

Exhs.24, 25 and 27, allegedly written by her to

Dashrath (PW 2). The letter Exh.24 is dated

01.09.1996, the letter Exh.25 is dated 28.04.2002,

while the letter Exh.27 is dated 30.07.1997.

There is no mention in the report Exh.23 that the

informant had sent any letter to Dashrath (PW 2)

and the informed him about the demand for money

made by the respondents and the illtreatment meted

out to her for fulfilling that demand. The report

10 Cri-appeal-195-04

Exh.23 shows that the informant was illtreated

during the period from 17.07.2001 to 21.08.2002.

Therefore, the letters Exh.24 dated 01.09.1996 and

the letter Exh.27 dated 30.07.1997 would be of no

use to the informant to establish that she was

illtreated by the respondents for fulfilling the

demand for money. The letter Exh.25 dated

28.04.2002 mentions that on 04.04.2002, she was

compelled to abort herself in the hospital of Dr.

Sarojini Patil. However, there is no mention about

the said absorption dated 04.04.2002 in the report

Exh.23 or in the evidence of the informant. There

is no medical evidence produced on record to show

that the informant was subjected to absorption on

04.04.2002 in the hospital of Dr.Sarojini Patil.

It is not even stated by the informant that she

was beaten by the respondents in the month of

April, 2002 and therefore, she was required to

take medical treatment from Dr.Sarojini Patil.

The contents of letter Exh.25 do not corroborate

11 Cri-appeal-195-04

the version of the informant in respect of the

alleged illtreatment.

10. The letter Exh.27 ex-facie appears to be

a document prepared for the purpose of creating

evidence. It does not bear postal seal. The

informant admits that it was not actually posted

for being delivered to the addressee. The

handwriting on the letter Exh.27 prima facie does

not appear to be that of the informant. In the

circumstances, the said letter would not be

helpful to the informant to corroborate her

version.

11. There is absolutely no independent

evidence to support the case of the prosecution

that the informant was subjected to cruelty by the

respondents. The learned trial Judge has rightly

appreciated the evidence and rightly disbelieved

the evidence of the informant and that of her

father Dashrath (PW 2). The learned trial Judge

12 Cri-appeal-195-04

rightly discarded the letters Exhs.24 to 27 from

consideration. I do not find any illegality or

perversity in the impugned judgment of acquittal

passed in favour of the respondents.

12. The appeal is devoid of any substance.

It is liable to be dismissed and accordingly,

dismissed.

[SANGITRAO S. PATIL, J.]

kbp