Bombay High Court
Manohar J.Jadhav vs The State Of Maharashtra on 25 October, 2021
Bench: C.V. Bhadang
1-apl-490-1998
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 490 OF 1998
Manohar Jagannath Jadhav ]
R/o. Jalalpur Taluka ]
District- Nashik ] ..Appellant
Vs.
The State of Maharashtra ]
(At the instance of Police Station) ] ..Respondent
----
Ms. Saili N. Dhuru, for the Appellant.
NILAM Digitally signed by
NILAM SANTOSH
Mr. S. R. Agarkar, APP for the Respondent / State.
SANTOSH
KAMBLE
KAMBLE
Date: 2021.10.25
14:10:36 +0530
----
CORAM : C.V. BHADANG, J.
RESERVED ON : 4 OCTOBER 2021
PRONOUNCED ON : 25 OCTOBER 2021
JUDGMENT :
. By this appeal the Appellant-Accused is challenging the
judgment and order dated 26 March 1998 passed by the learned
Sessions Judge at Nashik in Sessions Case No.77 of 1997. By the
impugned judgment the learned Sessions Judge has convicted the
Appellant for the offence punishable under Section 366 of Indian
Penal Code. The Appellant has been sentenced to suffer rigorous
imprisonment for three years and to pay a fine of Rs.1,500/- and in
default to undergo rigorous imprisonment for three months.
Mamta Kale page 1 of 10
1-apl-490-1998
2. The prosecution case may be briefly stated thus :-
That the complainant Smita d/o Arvind Juwalekar, PW-
1 was working as Machine Operator in Meltron at Nashik. She was
earlier married to one Mohidun S. Musa in the year 1987 and
subsequently was divorced. She was residing along with her parents
near Modern High School at CIDCO, Nashik. According to the
prosecution the Appellant had helped the complainant Smita in
obtaining divorce from her husband. The appellant used to visit her
house and also used to drop her at her office at Meltron. Further
according to the prosecution the Appellant was interested in
marrying with the complainant and he proposed her for marriage.
However, the complainant and her parents and her relatives had
shown their unwillingness for the marriage of the complainant with
the Appellant.
3. It is the material prosecution case that on 25 April 1991
at about 5.35 p.m., the Appellant had abducted the complainant
from infront of the gate of Meltron Company at MIDC, Ambad,
Nashik and had taken her in an auto autorikshaw bearing No.MH-
15-B-2741 of PW-4 Kishor Abaji Chavan. According to the
prosecution the Appellant took the complainant with an intent to
compel her to marry against her wish and thereby committed an
offence under Section 366 of the Indian Penal Code.
Mamta Kale page 2 of 10
1-apl-490-1998
4. On the basis of a complaint lodged by Smita an offence
came to be registered and upon investigation a charge-sheet came to
be filed against the Appellant under Section 366 of I.P.C.
5. The learned Sessions Judge framed charge against the
Appellant under Section 366 of IPC to which the Appellant pleaded
not guilty and claimed to be tried. The defence of the Appellant is
one of the total denial and false implication.
6. At the trial the prosecution examined in all seven
witnesses namely the complainant Smita Arvind Juwalekar-PW-1,
her friend Megha @ Sushma Trimbakrao Ranade PW-2 and Dipti
Dilip Dastane PW-3 the Autorikshaw Driver, Kishor Abaji Chavan-
PW-4 and spot panch Dilip Kirhsna Waghchaure (PW-5). PW-4
and PW-5 had turned hostile and did not support the prosecution.
The prosecution also examined Traffic Police Constable PW-6
Karbhari G. Pund who had brought the autorikshaw before the
police station and the Investigating Officer PW-7 Sompuri R.
Gosavi. The prosecution produced the record of the investigation.
7. The Appellant did not lead any evidence in defence.
8. The learned Sessions Judge accepting the prosecution
evidence, has convicted the Appellant. Hence, this Appeal.
Mamta Kale page 3 of 10
1-apl-490-1998
9. I have heard the learned counsel for the Appellant and
the learned Additional Public Prosecutor. With the assistance of the
learned counsel for the parties I have gone through the record.
10. It is submitted by the learned counsel for the Appellant
that the prosecution evidence on the point of the Appellant having
forcibly taken the complainant is not acceptable. It is submitted that
the evidence of PW-2 Megha and PW-3 Dipti is also highly
unnatural on the basis of their conduct and their evidence does not
inspire confidence. It is submitted that according to the
complainant she was taken in the autorikshaw in the evening hours
when the roads are crowded. It is improbable that she did not raise
any alarm. It is submitted that the prosecution evidence falls short
of bringing home the guilt of the Appellant beyond reasonable
doubt. It is submitted that in fact the complainant got annoyed
when the Appellant got married to another girl and she did not
attend his marriage although invited. It is pointed out that it is the
defence of the Appellant that the father of PW-1 Smita attended
marriage of the Appellant and told that Smita was annoyed and
therefore she did not attend the marriage.
11. It is submitted by the learned Additional Public
Prosecutor that the evidence of PW-1, PW-2 and PW-3 is consistent
on point of the forcibly taking of PW-1 by the Appellant. It is
Mamta Kale page 4 of 10
1-apl-490-1998
submitted that the fact that PW-4 has not supported the prosecution
will not come in the way of accepting the evidence of PW-1 to
PW-3. It is submitted that there was a prior complaint by the
father of the complainant PW-1 against the Appellant and therefore
the possibility of the Appellant forcibly taking the complainant on
the date of the incident, in order to compel her to marry against her
wish cannot be ruled out. He therefore, submitted that the appeal is
without merit and it be dismissed.
12. As noticed earlier PW-4 Kishor Chavan who is an
autorikshaw driver of the autorikshaw MH-15B-2741 in which the
complainant was allegedly taken forcibly has turned hostile. Even
PW-5Dilip Waghchaure who is a panch witness has turned hostile
and did not support the prosecution. The material evidence to be
looked into is of PW-1 Smita along with her friend PW-2 Megha @
Sushma and PW-3 Dipti.
13. It has come in the evidence of the PW-1 that she was
earlier married to one Shaikh Musa in the year 1987 and she was
divorced in the year 1990. She states that the Appellant had helped
her in obtaining divorce from her husband and the Appellant used
to meet her at her work place and also used to visit her residence.
Further according to PW-1 Appellant had told her that he was
interested in marrying with her. However, there was opposition to
Mamta Kale page 5 of 10
1-apl-490-1998
said marriage from her family members. She was also not willing to
marry the Appellant and had asked the Appellant not to make any
attempt to meet her at her residence or in her company.
14. On 25 April 1991 she attended her duty and at about
5.30 p.m. left her office and was proceeding to board a bus. She
was accompanied by PW-2 Megha @ Sushma and PW-3 Dipti.
They were standing in front of the gate of their company. She states
that when she along with Sushma (PW-2) were boarding the bus the
Appellant came there and caught her hand and dragged her saying
that he wanted to marry with her. The Appellant took her in an
autorikshaw which was standing, there, towards Jalalpur locality.
The autorikshaw was intercepted by traffic Constable PW-6
Karbhari and they were brought to Police Station Satpur where she
lodged a complainant Exhibit-15.
15. It has come on record that the complainant was married
to Mohiddin Shaikh Musa and was since divorced and she had a son
from the wedlock who was about 2 years of age at the time of the
incident. After the divorce she was residing with her parents. It has
also come on record that the Appellant had helped the complainant
in obtaining divorce and they were acquainted with each other for
quite some time. The Appellant was on visiting terms with the
complainant and used to visit her residence as well as her work
Mamta Kale page 6 of 10
1-apl-490-1998
place. The complainant has also admitted that at one point of time
she was also willing to marry with the Appellant. However, there
was opposition to the said marriage from her family members.
According to the complainant the Appellant was interested in
marrying with her while it is the defence of the Appellant that the
complainant was annoyed as the Appellant married with another
girl. The prosecution evidence on the point of the actual incident
has to be appreciated in the background of the aforesaid
circumstances which have clearly come on record.
16. The evidence of the prosecution witnesses PW-1, PW-2
and PW-3 shows that all of them were working as machine operators
with Meltron since about 15 years and they were acquainted with
each other. On the date of the incident three of them were working
in a general shift. It has come on record that majority of the
employees of the general shift are ladies and few of them are males.
There is a common gate for exit and there are security guards posted
at the gate of the company. There is a bus provided for the
employees for commuting between their residence and their work
place. The incident is alleged to have happened at about 5.00 to
5.30 p.m., at the conclusion of the general shift when according to
the complainant the ladies staff members were allowed to come out
first followed by male employees. There is a auto rikshaw stop in
front of the gate. It can thus clearly be seen that the looking to the
Mamta Kale page 7 of 10
1-apl-490-1998
nature of the spot where the alleged incident of forcibly taking the
complainant had happened must be fairly crowded at 5.00 to. 5.30
p.m. It is necessary to note that the spot is situated in Ambed,
MIDC with other establishments and there is possibility of the
presence of the employees of the other companies also on the
conclusion of the general shift. According to the complainant when
she along with PW-2 where boarding the bus the Appellant came
from behind and caught hold and dragged her in the autorikshaw.
This incident is witnessed by PW-2 and PW-3. None of them claim
to have raised any alarm or taken the help of the security guards who
were posted just near the spot on the gate of the company. It has
come in their evidence that they did not inform the company
management about the incident nor the family members of the
complainant, much less the police. In my considered view the
conduct of PW-2 and PW-3 who are closely acquainted with the
complainant of not raising any alarm or bringing the incident to the
notice of the security guards/management or the family members of
the complainant and the police is highly unnatural. It is true that
the evidence of the witnesses who are closely acquainted cannot be
discarded on the ground of such acquaintance alone. The evidence
has to be read as a whole. The evidence of the complainant shows
that the autorikshaw was asked to be taken to Jalalpur and it passed
through Pathadi Square, Pawan Nagar and Mahatma Nagar. The
evidence of PW-6 shows that the autorikshaw was intercepted at Old
Mamta Kale page 8 of 10
1-apl-490-1998
Control Naka, Gangapur. It has come on record in the evidence of
PW-4 that the distance between Meltron and the spot where the
autorikshaw has intercepted is about 10 k.m. The autorikshaw had
passed through city roads in the evening hours. In my considered
view it is improbable that no alarm was raised. The evidence of PW-
6 Karbhari who is a traffic Head Constable who intercepted the
autorikshaw shows that on the date of the incident at about 17 hours
he had received a wireless message from the Control Room that a
person by name Manohar Jadhav (Appellant) had abducted the lady
by name Smita and they were occupants of the autorikshaw bearing
No.MH-15-B-2741. A copy of the wireless message is produced at
Exhibit-21 which shows that it was initiated on the basis of an
information received from the father of the complainant inasmuch
as the intimation states that "My daughter Smita Arvind Juwalekar
has been abducted by Manohar Jadhav.". However, the father of the
complainant has not been examined. There is nothing on record to
show as to how the father of the complainant came to know of the
incident. As noticed earlier the complainant has admitted that at
one point of time she was also willing to marry with the Appellant in
the interest of her son. However, there was opposition to the said
marriage from the family members. The complainant and Appellant
were acquainted since long. Thus the probability of the complainant
accompanying the Appellant voluntarily cannot be ruled out and it
is only on the basis of the intimation given by the father who was
Mamta Kale page 9 of 10
1-apl-490-1998
opposed to such marriage that the autorikshaw was intercepted. It is
necessary to note that PW-4 the autorikshaw driver has not
supported the prosecution. In my considered view, this is a case
where the Appellant would be entitled to benefit of doubt.
Considering the overall circumstances, in the result the following
order is passed.
ORDER
(i) The Appeal is allowed.
(ii) The conviction and the sentence awarded to the
Appellant is hereby set aside.
(iii) The Appellant is acquitted of the charge under
Section 366 of the Indian Penal Code.
(iv) Bail bonds of the appellant stand cancelled.
C.V. BHADANG, J.
Mamta Kale page 10 of 10
