Bombay High Court
The State Of Maharashtra vs Santosh Parshuram Kadam & Ors on 31 May, 2017
Bench: Prakash Deu Naik
1 215-apeal-1400-2003.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1400 OF 2003
The State of Maharashtra ... Appellant
V/s.
1. Santosh Parshuram Kadam
27 Yrs., Occ. Agriculturist.
2. Parshuram Tukaram Kadam,
62 yrs., Occ. Agriculturist,
3. Sou. Anusaya Parshuram Kadam
65 Yrs., Occ. Household work,
All Residing At. Aarale,
Tal & Dist. Satara ... Respondents
------
Mr Arfran Sait, Addl P.P. for the Appellant.
Shri H.S. Venegavkar, Adv. With Shri Tejas Dhotre, Adv. for
Respondents Nos. 1 to 3.
-----
CORAM : PRAKASH D. NAIK, J.
DATE : 31 May 2017
O RAL J UDG M ENT
1. This Appeal is preferred by the State under Sections 378(1) of
Code of Criminal Procedure, challenging the judgment and order of
2 215-apeal-1400-2003.doc
acquittal dated 26th August 2003 passed by the 5th Judicial Magistrate
First Class, Satara in Regular Criminal Case No. 40 of 2002.
2. The prosecution case is as follows:-
a. The marriage of the complainant Sou Rupali was solemnized with
accused No.1 on 19th April 2000. The marriage expenses were borne
by the father of the complainant. The parents of the complainant had
given 5 tola gold to the complainant in the marriage.
b. The accused No.1 at the behest of his parents started demanding
Rs.25,000/- from the complainant to be brought by her from her
parents for purchasing two wheeler and on that count started ill
treating her.
c. The accused No.3 was ill-treating the complainant and taunting
her that the complainant cannot prepare tiffin properly for accused
No.2.
d. The complainant narrated the ill treatment meted out to her by the
accused to her father and uncle. The accused No.1 also demanded
that the property viz. Bungalow at Sadar Bazar, Satara be transferred
to his name. The complainant was scorched by half burnt wood on
her right cheek and on her left hand with the hot ladle. The
3 215-apeal-1400-2003.doc
complainant narrated the above fact to her uncle when he visited her
matrimonial house.
e. The parents of the complainant then took her to parental home at
Chinchner. Thereafter in February 2001, she lodged the complaint to
Mahila Balvikas Kendra, Satara. Attempts were made to
compromise but the same were failed. The accused ill treated and
subjected the complainant to cruelty from 19th April 2000 to 29th
January 2001. Thereafter the complainant lodged the FIR for
offences punishable under Sections 498-A, 323 and 504 read with 34
of the IPC.
3. The police carried out the investigation by recording statement of
witnesses and collecting necessary evidence. After completion of
investigation the charge-sheet was filed and the accused were tried for
the said offences.
4. The accused No.1 is the husband of the complainant and accused
Nos.2 and 3 are father-in-law and mother-in-law of the complainant
respectively.
5. The charge was framed by the Trial Court on 28th November 2002
4 215-apeal-1400-2003.doc
for the offences punishable under Sections 498-A, 323 & 504 read with
34 of the IPC. The accused pleaded not guilty. The prosecution
examined 7 witnesses to prove charge against the accused. P.W. No.1
Smt Rupali Santosh Kadam is the complainant (wife of the accused
No.1). P.W. No.2, Shri Vasant Kondiram Nimbalkar is the uncle of the
complainant. P.W. No.3, Sulochana Balkrishna Nimbalkar is the mother
of the complainant. P.W. No.5, Dr Mahananda Vishweshwar Shete, is the
Medical Officer who had examined the complainant at the time of her
pregnancy. P.W. 6, Balkrishna Dhondiram Nimbalkar, is the father of the
complainant and P.W.No.7, Balasaheb Kashinath Gaikwad is the
Assistant Sub Inspector attached to Satara Taluka Police Station who had
conducted the investigation.
6. The Trial Court after recording the evidence of the witnesses
recorded the statement of the accused under Section 313 of Cr.P.C. After
hearing both the parties Trial Court passed judgment and order dated
26th August 2003. The Trial Court had acquitted the accused of the
offences for which they were charged. Hence the State preferred this
Appeal challenging the said judgment and order of acquittal.
7. Mr Sait, learned APP appearing for the Appellant / State,
5 215-apeal-1400-2003.doc
submitted that the Trial Court has committed error in acquitting the
accused. He submitted that the evidence on record has clearly
established the charges against the accused. He submitted that the Trial
Court has committed error in not appreciating substantiative evidence on
record which had proved cruelty and the charge of assault against the
accused. He further submitted that the evidence adduced by the
prosecution has not been demolished by the defence in the cross
examination and therefore the said evidence ought to have been
considered by the Trial Court to convict the accused persons. He
submitted that the evidence of the Doctor corroborates the testimony of
the complainant that she was ill-treated physically as well as mentally
which had resulted in abortion. The ocular evidence as well as the
medical evidence which was put forth at the instance of the prosecution
is sufficient to establish the act of cruelty and the offence under Section
498-A of the IPC. He, therefore, submitted that the judgment of the Trial
Court is required to be interfered with in this Appeal against the
acquittal. He submitted that the Trial Court has not scrutinized the oral
as well as documentary evidence in proper perspective which has
resulted in miscarriage of justice. He further submitted that the evidence
adduced by the prosecution was sufficient to hold the accused guilty of
the offences for which they were charged. The Trial Court has
6 215-apeal-1400-2003.doc
misconstrued the evidence on record and misinterpreted the provisions
of law. It was submitted that the deposition of P.W. No.1 and the
testimony of the other witnesses clearly proves the charge beyond doubt
and therefore, the accused should have been convicted for the said
offences. He submitted that the Trial Court has failed to consider the
genuineness and trustworthiness of the evidence of the complainant
which was corroborated by the other witnesses and by cross examination
the evidence is not shaken in any manner. He submitted that the evidence
of P.W. Nos. 1, 2 and 6 clearly establishes the physical and mental
cruelty meted out to the complainant. He submitted that the demand as
well as the ill-treatment meted out to the complainant has been
established by the evidence of the witnesses which has been completely
overlooked by the Trial Court. He, therefore, submitted that the
judgment of acquittal is contrary to the evidence on record and well
established principles of law and therefore, same is required to be set
aside and the accused may be convicted for the said offences.
8. Learned Advocate Shri H.S. Venegavkar appearing for
Respondents / accused submitted that the FIR was lodged as counter
blast to the marriage Petition filed by the accused No.1. He further
submitted that the evidence of the witnesses do not inspire confidence
7 215-apeal-1400-2003.doc
and it suffers from various infirmities and hence, the Trial Court has
rightly acquitted the accused. He submitted that the evidence of the
complainant and the other witnesses suffered from the infirmities like
contradictions and omissions which goes to the root of the matter
therefore, no interference is required in the judgment and order of
acquittal passed by the Trial Court. He submitted that the prosecution
has failed to prove beyond all reasonable doubts the charge of cruelty as
well the assault as alleged by the prosecution. He submitted that the
evidence of the witnesses is after thought as no such complaints were
made at the earlier point of time. He further submitted that the law
relating to the Appeal against the acquittal is clear in various decisions of
the Supreme Court and this Court. In view of catena of decisions,
according to him the order of acquittal can be interfered with in
exceptional circumstances. He further submitted that the evidence of the
witnesses do not establish the charge under Sections 498-A, 323 and 504
read with 34 of the IPC and the Trial Court has rightly acquitted the
accused persons.
9. In the light of the aforesaid submissions made by the prosecution
as well as the defence it would be proper to analyze the evidence on
record. P.W. No.1 Rupali is the complainant who has deposed that she
8 215-apeal-1400-2003.doc
was married to accused No.1 on 19th April 2000. She further stated that
her parents had given 5 tola gold, household utensils and borne the
marriage expenses. After marriage she went to village Aarle for
cohabitation. At village Aarle accused Nos. 1, 2 and 3 were residing
jointly. Initially for a period of one and half month she was treated well.
accused No.1 was demanding Rs.25,000/- for purchasing two wheeler
boxer brand vehicle. He insisted that the complainant to bring an amount
of Rs.25,000/- from her parents. The mother-in-law used to taunt the
complainant that she cannot prepare the tiffin for her father-in-law.
accused No.3 was also scolding on that count. She further stated that
accused used to abuse her. Thereafter the complainant was left to her
parental home. She disclosed about ill-treatment to her uncle and
parents. She also disclosed reason for ill-treatment. The father of the
complainant, uncle and one Ashok Bhosale went to village Aarle for
conciliation. The accused further continued with the demand. The
accused No.1 also told the complainant that she should tell her father to
transfer the Bungalow which is in the name of her father to his name.
The complainant refused to do so. The accused No.1, therefore, scorched
her right cheek with a half burnt wood. The accused No.3 also scorched
the left hand of the complainant with a hot ladle. Thereafter the uncle of
the complainant visited her matrimonial home. The complainant
9 215-apeal-1400-2003.doc
informed him about the ill-treatment. The accused Nos. 1 and 3 assaulted
the complainant by fist and kick blows on her stomach. At that time she
was pregnant and was suffering from stomachache. The uncle of the
complainant visited the matrimonial home of the complainant and he
took her to Chinchner. On account of the stomachache she had to
undergo abortion. She stated that she was taken to Nandadeep Hospital
by uncle and brother of husband for treatment. She was treated in the
said hospital for two days. Thereafter the complainant filed a complaint
to Mahila Bal Vikas Centre, Satara to settle the dispute amongst the
parties which were futile. The parents and the other relations of the
complainant also tried reconciliation, however, they did not succeed.
Thereafter the complainant filed a complaint with the police station and
FIR was registered, which is exhibited as Exhibit No.17 in the
proceedings. In the FIR it is stated that the demand for bungalow was
made by accuse No.3. The FIR do not refer to allegations of scorching
by husband. There is no reference of abortion.
10. P.W. No.1 was cross examined at the instance of the defence. In
the cross examination she deposed that approximately 4 acre irrigated
land is owned by the accused. accused No.2 is serving in Cooper
Factory, Satara Road, Satara and he is getting salary of Rs.4,000/- per
10 215-apeal-1400-2003.doc
month. There is a boxer vehicle at her matrimonial home. She further
stated that after two day of filing complaint, she issued a notice through
her Advocate to accused No.1. The complaint to Mahila Mandal Satara
was filed by her father in February 2001. The said Mahila Mandal is in
the Police Station, Satara. She stated that the complaint lodged at Mahila
Mandal was that she was starved for 15 days. She also deposed that
accused No.1 had filed Hindu Marriage Petition No. 23 of 2002 seeking
divorce. This fact is known to her parents and uncle. She also stated that
at the time of lodging the complaint her parents, Shri Ashok Bhosale and
uncle Vasant were present. She admitted that there is no mention in her
complaint Exhibit No.17 that accused No.2 assaulted her on her stomach
by kick and fist blows and at that time she was pregnant for 2 and half
months and that she suffered stomachache and suffered abortion. She
also admitted that there is no mention in the complaint that she told her
father and uncle that accused demanded Rs.25,000/- and ill-treated her
on that count. However several suggestions made at the instance of the
defence were denied by her.
11. P.W. No.2, who is the uncle of the complainant has stated that the
complainant had informed him that the accused No.1 is demanding
Rs.25,000/- for purchase of two wheeler and that the accused was ill-
11 215-apeal-1400-2003.doc
treating her by abusing. She had also disclosed to him that the accused
were taunting that the complainant cannot prepare food. Thereafter she
was left to Chinchner by accused Nos.1 and 3. He stated that the
incidents of ill-treatment were narrated to him by the complainant. He
also referred to attempts made by them for conciliation between the
accused and the complainant. He stated that the complainant had resided
at her matrimonial home for 1 and half month after the marriage and
subsequently for about three months after she was sent back from her
parental home to matrimonial home. He further deposed that the
complainant had also disclosed to him that the accused No.1 is insisting
that the property viz Bungalow at Sadar Bazar, Satara, which is in the
name of complainant's father be transferred to the name of accused No.1.
She also disclosed to him the scorching incidents. He also referred to the
fact that, complainant had to undergo abortion. He stated that the
complainant had disclosed to him that she was not provided food and the
accused Nos. 1 and 3 assaulted her by kick and fist blows while she was
pregnant. He stated that thereafter they went to village Aarle for
reconciliation to the matrimonial home of the complainant. However,
they could not succeed. In the cross examination said witness has stated
that there is no mention in his complaint that they went to meet the
complainant and accused were abusing her. So also there is no mention
12 215-apeal-1400-2003.doc
that the accused Nos. 1 and 3 assaulted the complainant by fist and kick
blows on her stomach and at that time she was pregnant for 2 and half
months on account of which she suffered abortion at village Aarle.
There is also no mention that she was taken to Nandadeep Hospital. The
said witness had however stated that the complainant was taken to
Government Hospital for treatment and thereafter to Nandadeep
Hospital. The prosecution has not brought on record the medical case
papers of Government Hospital.
12. P.W. No.3, is the mother of the complainant. She stated that after
the marriage the complainant went to Aarle for cohabitation. She came
to Chinchner for Solava and thereafter again went to village Aarle.
accused Nos. 1 and 3 left her at Chinchner. The complainant then resided
there for two to three months with her parents. The complainant
disclosed to her that accused Nos. 1 and 3 had ill-treated her. She further
stated that the accused were demanding Rs.25,000/- for purchase of two
wheeler since the complainant had failed to meet the demand she was ill-
treated by the accused. She further deposed that the complainant had
resided at parental home for a period of three months. At that time she
had disclosed that the accused Nos. 1 and 3 had assaulted her by kick
and fist blows which was resulted in abortion at village Chinchner. She
13 215-apeal-1400-2003.doc
also stated that the complainant had informed her that the aforesaid
assault was on account of not meeting the demand of Rs.25,000/-. She
also referred to the acts of scorching at the instance of accused Nos. 1
and 3. She also stated that after the abortion the complainant was taken
to Nandadeep Hospital at Satara and she was treated for two days.
However the accused refused to take her back to matrimonial home. The
complainant was thereafter filed complaint to Mahila Mandal Satara.
The said witness was cross examined by the defence. In the cross
examination she stated that the complainant cohabited at village Aarle in
all for two months. During this said period no ill-treatment was given to
the complainant. She admitted that it is not mentioned in her statement
that the accused was ill-treating and abusing the complainant. She also
states that there is no mention that she resided for three months. She also
admitted that it is not mentioned in the statement recorded by the police
that accused Nos. 2 and 3 given kick and fist blows thereby she suffered
stomachache and which had resulted in abortion at village Chinchner.
She also admitted that there is no mention that the reason behind this
assault was demand for Rs.25,000/- and transfer of Bungalow. There is
also no mention about the treatment given to the complainant at
Nandadeep Hospital, Satara. There is also no mention about the presence
of the said witness, when complainant had undergone abortion.
14 215-apeal-1400-2003.doc
13. P.W. No.4 is the person who is known to the family of the
complainant. He has referred to the fact of solemnization of marriage of
the complainant and accused No.1 and the ill-treatment meted out to the
complainant. He stated that the complainant had informed him that the
accused are demanding Rs.25,000/- for purchasing two wheeler and that
since she could not fulfill the demand, she has been ill-treated by them.
He was party to the attempts made by the family for conciliation. He
stated that thereafter the complainant had cohabited at her matrimonial
home but she was again ill-treated by accused persons. He also referred
to the incident of scorching the complainant by accused Nos. 1 and 3. He
also referred to the incidents of beating by accused Nos.1 and 3 by kick
and fist blows and the fact that the complainant had to undergo for
abortion. He also referred to the fact of admission of victim to
Nandadeep Hospital. Said witness was cross examined by the defence.
In the cross examination he stated that he has not stated before the police
the portion marked 'A' in his statement. He admitted that there is no
mention of demand of Rs.25,000/- for purchasing motorcycle at the
instance of accused in his statement. There is also no mention that he,
Balkrishna and Vasant went at village Aarle for conciliation. He also
admitted that there is no mention in his statement about the fact that they
had personally seen the injury marks on the person Rupali and that he
15 215-apeal-1400-2003.doc
stated that accused nos. 1 and 3 scorched her with half burnt wood and
ladle. There is also no mention about the transfer of bungalow and
giving of fist and kick blows due to which the complainant suffered
abortion. There is also no mention that she was taken to Nandadeep
Hospital for treatment and tried to compromise.
14. P.W. No.5, is the medical officer attached to Nandadeep Hospital,
Satara. She deposed that on 2nd August 2000, the complainant had been
to the hospital for treatment. Her uncle and sister were also accompanied
her. She had suffered from incomplete abortion. Process of abortion was
started and at that time she was pregnant for two and half months. She
examined her and advised admission in the hospital. She stated that the
abortion is possible by fist and kick blows given on stomach. She
deposed that the family members of the complainant including
complainant were her regular patients. The abortion is possible due to
mental torture. She issued certificate dated 3rd February 2002. The
certificate was marked Exhibit 31. In the cross examination she deposed
that certificate is not in her handwriting. She further stated that the
hospital always keep records with regard to history of the patients. She
deposed that the complainant had informed her that she suffered from
pain in abdomen and bleeding and that she came from village Chinchner.
16 215-apeal-1400-2003.doc
She further deposed that there is no violent marks on the person of
Rupali. It was not forced miscarriage. She deposed that there was
urgency for curating. She stated that if the patient had not been operated
immediately, it could have resulted in her death. She examined the
victim personally and seen hemorrhage and blood on her clothes.
However, she did not notice any septicemia. She further stated that she
did not prescribe any antibiotics. If there was unnatural miscarriage she
might have prescribed antibiotics. She stated that if any patient referred
to them, they firstly mention the previous treatment on the case paper.
There is no such reference of previous treatment on their case paper.
She also deposed that in the event of the abortion they consider the
opinion of husband of the lady. She also stated that she cannot said
firmly that patient to whom she operated was Rupali or not. She also
stated that she cannot say whether the abortion was natural or unnatural.
She also admitted that the abortion is possible after eating pumpkin,
pineapple, curela / bitter gourd etc. She also stated that she knows uncle
of the complainant as Vasant Kondiram Nimbalkar as he is her old
patient. She further stated that uncle of the complainant told her that
patient is Rupali and that she had no personal knowledge about their
relations.
17 215-apeal-1400-2003.doc
15. P.W. No.6, is the father of the complainant. He reiterated the facts
narrated by other witnesses. He has stated that on account of demand of
bungalow at Sainik Nagar, Satara, accused No.1 scorched complainant
on her right cheek with half burnt wood and accused No.3 scorched her
hand with a hot ladle. He also stated that complainant was severely
beaten by accused Nos.1 and 3 on her stomach. At that time she had
suffered abortion. He also referred to the fact that the victim was taken
to Nandadeep Hospital, Satara for treatment. He deposed that at the
relevant time the victim was beaten by accused persons. In the cross
examination said witness stated that after the marriage of Rupali he
never went to village Aarle. There is no mention in his statement
recorded by police about scorching caused to the complainant by
accused Nos.1 and 3 and also about the assault on stomach at the
instance of the accused.
16. P.W. No. 7, is the investigating officer who collected the evidence
and filed a charge-sheet. The omissions which had come on record in
the evidence of witnesses were proved through the said witness. He
admitted that he did not investigate about the contention in the complaint
that in February 2001 complainant has filed complaint in Mahila
Balvikas Centre at Satara.
18 215-apeal-1400-2003.doc
17. The Trial Court considered the aforesaid evidence and for the
reasons mentioned in the judgment, the accused were acquitted. The
Trial Court has observed that the prosecution case rests on the evidence
of witnesses who are closely related to the complainant. The Trial Court
also referred to the improvements made by the witnesses during the
recording of evidence. The Trial Court also observed that after getting
knowledge of Hindu Marriage Petition No. 23 of 2002, the complaint
was filed at the instance of the complainant. The Trial Court referred to
the evidence of P.W. No.5 wherein she stated that she had not prescribed
any antibiotics and admitted that if there was unnatural miscarriage she
might have prescribed antibiotics. The Trial Court further recorded that
the complainant was silent at the earlier point of time although there was
assault on her stomach by kick and fist blows at the instance of the
accused while she was pregnant and therefore, the Trial Court felt that
the version of the complainant is after thought. The Trial Court further
observed that the complainant through her Advocate had forwarded the
notice on 4th February 2002, which was exhibited in evidence at Exhibit
20. However there is no reference to the issue of abortion in the said
notice. The Trial Court, therefore, doubted the version of the
complainant. The Court also referred to the evidence of other witnesses
i.e. P.W. Nos. 2, 3 and 6 and opined that their evidence cannot be
19 215-apeal-1400-2003.doc
accepted as it suffers from the serious omissions and contradictions. The
Trial Court has also criticized the evidence of P.W. No.4 which is
contradictory to the evidence of other witnesses. On the basis of the
aforesaid observations the Trial Court observed that the prosecution has
failed to establish the charges levelled against the accused persons and
therefore, they deserve to be acquitted.
18. I have perused the evidence of the witnesses, the documents on
record and the reasons assigned by the Trial Court for acquitting the
accused persons.
19. It is settled law that the judgment of acquittal has obvious
consequences of granting freedom to the accused unless the judgment in
Appeal is contrary to evidence, erroneous, the Appellate Court shall be
reluctant to interfere with such judgment.
20. Mr. Sait, learned APP for the State placed reliance upon the
decision of the Supreme Court in the case of Jodhan V. State of Madhya
Pradesh1. In paragraph 12 of the said decision reference is made to
another decision of the Apex Court in the case of Ramesh Babulal
1 2015 Cri. L.J. 3291.
20 215-apeal-1400-2003.doc
Doshi V. State of Gujarat2 in which the Apex Court has taken view that
while considering the Appeal against acquittal, the Appellate Court is
first required to seek an answer to the question whether the findings of
the Trial Court are palpably wrong, manifestly erroneous or
demonstrably unsustainable and if the court answers the above question
in the negative, the acquittal cannot be disturbed. Reference is also made
to another decision of the Supreme Court in the case of Ganpat V. State
of Haryana3. In that decision, the Apex Court has laid down the
following principles which have to be kept in mind by the Appellate
Court dealing with Appeal particularly against the order of acquittal.
i. There is no limitation on the part of the appellate court
to review the evidence upon which the order of acquittal is
founded and to come to its own conclusion.
ii. The appellate court can also review the trial court's
conclusion with respect to both facts and law.
iii. While dealing with the appeal preferred by the State, it
is the duty of the appellate court to marshal the entire
evidence on record and by giving cogent and adequate reasons
may set aside the judgment of acquittal.
iv. An order of acquittal is to be interfered with only when
2 (1996) 9 SCC 225: AIR 1996 SC 2035.
3 (2010) 12 SCC 59 : (2010) AIR SCW 7032.
21 215-apeal-1400-2003.doc
there are 'compelling and substantial reasons' for doing so. If
the order is 'clearly unreasonable', it is a compelling reason
for interference.
v. When the trial court has ignored the evidence or
misread the material evidence or has ignored material
documents like dying declaration / report of ballistic experts,
etc. the appellate court is competent to reverse the decision of
the trial court depending on the materials placed."
21. In the paragraph 13 of the aforesaid decisions, the Supreme Court
has referred to decision in the case of State of Punjab V. Karnail Singh 4
wherein it was observed that the paramount consideration of the court is
to ensure that miscarriage of justice is prevented. A miscarriage of
justice which may arise from acquittal of the guilty is no less than from
the conviction of an innocent. In a case where admissible evidence is
ignored, a duty is cast upon the appellate court to reappreciate the
evidence even where the accused has been acquitted for the purpose of
ascertaining as to whether any of the accused committed any offence or
not.
4 (2003) 11 SCC 271 : (AIR 2003 SC 3609).
22 215-apeal-1400-2003.doc
22. In the light of the aforesaid observations and the law laid down by
the Apex Court in several decision with reference to the principles to be
considered while dealing with Appeal against order of acquittal, I am of
the opinion that in the present case the prosecution has not been able to
establish the case against the accused beyond all reasonable doubt. The
prosecution case as stated above suffers from serious infirmities in the
form of contradictions and omissions which goes to the root of the
matter. I have perused the evidence of the witnesses minutely and I am
of the opinion that the benefit of doubt ought to be given to the accused
persons considering the nature of evidence brought on record by the
prosecution. The evidence of the P.W. No.1 as stated herein above
suffers from the infirmities which creates doubt the veracity of her
evidence. It is also stated herein above while narrating the evidence of
the said witness that the witness has not stated about the serious
allegations which were deposed for the first time while recording the
substantiative evidence. It is already noted that in the cross examination
the said witness has stated that there is no mention in the complaint that
accused Nos. 1 and 3 had assaulted her on stomach by kick and fist
blows and that she was pregnant of two and half months. She has also
admitted that there is no mention in a complaint that she told her father
and uncle that accused demanded Rs.25,000/- and ill-treated her on that
23 215-apeal-1400-2003.doc
count. She could not assign any reason for the said omissions. The
learned PP however pointed out that in the FIR there is reference of the
demand of Rs.25,000/- at the instance of the accused and in fact there is
no omission with regards to demand. The learned Advocate for the
Respondents however pointed out that there is contradiction in the FIR
and that substantiative evidence of the said witness with regard to the
demand of Rs.25,000/-. P.W. No.3 has stated that in his statement that
complainant was at her matrimonial house for a period of two months.
The evidence also disclosed that there is no reference of the complainant
being treated at Nandadeep Hospital and the said fact has come up for
the first time in the deposition before the Court. It is also pertinent to
note that P.W. No.2 has stated in his evidence that even after the abortion
which purportedly had occurred on account of the ill-treatment meted
out to the complainant, there was an attempt of conciliation with the
accused. It is difficult to accept that in the event of assault on stomach of
the complainant resulting in abortion, there would be an attempt of
reconciliation at the instance of relatives of complainant. It is also
pertinent to note that there is no previous complaint with reference to the
incident of scorching her right cheek with a half burnt wood and left
hand with a hot ladle at the instance of accused Nos. 1 and 3. It is also
noted that in the entire evidence there is no sufficient overact attributed
24 215-apeal-1400-2003.doc
to accused No.2. The serious allegation of assault on stomach by accused
which allegedly resulted in abortion is not reflected in the complaint of
P.W. No.1. The demand of bungalow is attributed to accused No.3 in the
complaint whereas in evidence it is attributed to accused No.1.
23. P.W. No.6, the father of the complainant had stated that he had
never gone to matrimonial house of the complainant and every time the
visits were made by his brother i.e. P.W. No.2. P.W. No.2 in the cross
examination has admitted that there is no mention in the complaint that
when he went to meet the complainant the accused were abusing her.
There is no mention in the complaint that accused Nos. 1 and 3 had
assaulted complainant by kick and fist blows on her stomach and at that
time she was pregnant of two and half months and that she had suffered
abortion at village Aarle. There is also no mention that she was taken to
Nandadeep Hospital and similarly in the cross examination of P.W. No.3
it has come on record that the complainant has cohabited at village Aarle
in all for a period of two months. It is not mentioned in the statement
recorded by the police that the accused were ill-treating and abusing the
complainant so also there is no mention that she resided there for three
months. The witness further admitted that there is no reference to the
fact that accused Nos.1 and 3 gave the fist and kick blows and thereby
25 215-apeal-1400-2003.doc
suffered stomachache and which are resulted in abortion at village
Chinchner. There is also no mention that the reason behind this is
demand of Rs.25,000/- and the transfer of bungalow in the name of
accused. There is also no mention that the complainant was treated at
Nandadeep Hospital, Satara. The evidence of P.W. No.4 refers to the fact
that he had accompanied Balkrishna and his brother Vasant and also
about the attempt of conciliation. Even the evidence of said witness
suffered from serious infirmities in the nature of the omission. He stated
that in the police statement there is no reference to the fact that the
accused was demanding Rs.25,000/- for purchasing motorcycle and that
he along with Balkrishna and Vasant went to village Aarle for
conciliation. There is also no reference that he had witnessed the injury
marks on the person of the complainant and that she had stated that
accused Nos. 1 and 3 had scorched her right cheek with a half burnt
wood and left hand with a hot ladle. There is also no mention of the
transfer of the bungalow and giving of fist and kick blows due to which
the complainant suffered abortion.
24. In the light of the above omissions in the evidence of these
witnesses it is difficult to accept the version of the said witnesses since it
creates doubt about its genuineness and therefore the Trial Court has
26 215-apeal-1400-2003.doc
rightly given the benefit of doubt to the accused persons. The learned
APP has vehemently submitted that the demand of Rs.25,000/- made at
the instance of accused is consistently proved by the witness. However,
taking in to consideration the nature of evidence of all the witnesses it is
difficult to accept the said version of the complainant. The serious
allegations which were made at the instance of the complainant and the
other witnesses have come on record for the first time in the
substantiative evidence of which there was no reference nor there was
any such complaint at earlier point of time. In view of the nature of
evidence which was put forth by the prosecution it is difficult to convict
the accused for the said offences. The prosecution has thereby failed to
prove the charge which are framed against the accused persons. It is
pertinent to note that the marriage was solemnized on 19th April 2000.
According to P.W. No.1, she was treated well for about one and half
month. Thereafter she was ill-treated. Thereafter she stayed with her
parents for two months. Sh was again brought to matrimonial home and
on account of alleged ill-treatment she was taken to her matrimonial
home. She was purportedly treated at Nandadeep Hospital on 2nd
August 2000. The father of complainant lodged complaint to Balvikas
Mahila in February 2001. The witnesses have stated that the complainant
had resided in matrimonial house for a short period. From August 2000
27 215-apeal-1400-2003.doc
she is continuously residing at her parental home and there was no
question of ill-treatment during the subsequent period. The FIR was
lodged on 2nd February 2002. Surprisingly the FIR do not refer to
serious allegation of assault on stomach and resultant abortion. All these
circumstances creates doubt about the version of witnesses.
25. The learned APP for the State has strongly relied on the evidence
of P.W. No. 5, Dr. Mahananda Shete. He submitted that evidence
establishes that P.W. No.1 had to undergo abortion on account of ill-
treatment and therefore this can be termed as mental and physical cruelty
to the complainant which establishes the charge under Section 498-A of
the IPC. While discussing the evidence of P.W. No.5, I have already
referred to the nature of the evidence and the admissions given by the
said witness in her cross examination first of all there is no reference of
the complainant being treated at Nandadeep Hospital by the witnesses in
their statements. The allegations of assault on the stomach of P.W. No.1
at the instance of accused Nos. 1 and 3 are not proved because there was
no reference of said allegation in the statement before police. It is also
pertinent to note that there is no contemporaneous record for
examination of the complainant in the government hospital. There is also
no record in the form of medical case papers when the patient was
28 215-apeal-1400-2003.doc
admitted in the hospital of P.W. No.5. However, said witness has placed
on record a treatment certificate which shows that the complainant was
examined in the hospital. The said certificate was issued on 3rd March
2002. P.W. No.1 was allegedly examined on 2nd August 2000. Further
it is a case of prosecution that the patient was treated in the said hospital
at the earlier point of time and the certificate has been issued
subsequently. In any case the certificate does not reflect the fact that the
abortion was resulted on account of assault at the instance of accused
persons. The medical officer had also stated in her evidence that there is
practice of recording the history given by the patient, while the patient is
being admitted in the hospital. No such history was brought on record to
substantiate the fact that the patient was suffering from stomachache on
account of assault or ill-treatment meted at the instance of accused
persons.
26. In view of the nature of the evidence brought on record no reliance
can be placed upon such evidence to convict the accused for the offences
for which they were charged.
27. In the case of K. Venkateshwarly Vs. State of Andhra Pradesh 5
5 AIR 2012 (SC) 2955.
29 215-apeal-1400-2003.doc
the Supreme Court has held that, if the view taken by Trial Court is a
reasonably possible view, the High Court cannot set it aside and
substituted it by its own view merely because that view is also possible
on the facts of the case. The High Court has to bear in mind that
presumption of innocence of an accused is strengthened by his acquittal
and unless there are strong and compelling circumstances which rebut
that presumption and conclusively establish the guilt of the accused, the
order of acquittal cannot be set aside. Unless the order of acquittal is
perverse, totally against the weight of evidence and rendered in complete
breach of settled principles underlying jurisprudence, no interference is
called for with it. Crime may be heinous, morally repulsive and
extremely shocking, but moral considerations cannot be substitute for
legal evidence and the accused cannot be convicted on moral
considerations.
28. In view of the aforesaid circumstances, I am not inclined to
interfere with the decision of the Trial Court and I am of the opinion that
the Trial Court has taken possible view which is not required to be set
aside in the Appeal against acquittal. Hence I pass the following order:-
30 215-apeal-1400-2003.doc
ORDER
1. Criminal Appeal stands dismissed.
2. No order as to costs.
( PRAKASH. D. NAIK, J. )
