Bombay High Court
Nisha Dilip Dhomane vs State Of Mah. Thr. Pso, Nandgaonpeth ... on 3 May, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:5440-DB
Judgment apl142.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APL] NOs. 142, 194, 195 & 196 OF 2023.
..........
CRIMINAL APPLICATION [APL] NO. 142/2023.
Chetan Dilip Dhomane,
Aged 26 years, Occupation - Student,
resident of House No.194, Khari Ward,
Bhopal Road, Village Pandhurna,
District Chindwara (Madhya Pradesh). ... APPLICANT.
VERSUS
1.State of Maharashtra,
Through the Police Station Officer,
Nandgaonpeth Police Station,
Amravati.
2.Vaishnavi w/o Manish Dhomane,
Aged 27 years,Occupation - Housewife,
resident of House No.10, Datta wadi,
Wardhekar Layout, Shegaon Rahatgaon Road,
Tq. and District Amravati, Maharashtra. ... NON-APPLICANTS.
WITH
Rgd.
Judgment apl142.23
2
CRIMINAL APPLICATION [APL] NO. 194/2023.
Varsha Dilip Dhomane,
Aged 53 years, Occupation - Housewife,
resident of House No.194, Khari Ward,
Bhopal Road, Village Pandhurna,
District Chindwara (Madhya Pradesh). ... APPLICANT.
VERSUS
1.State of Maharashtra,
Through the Police Station Officer,
Nandgaonpeth Police Station,
Amravati.
2.Vaishnavi w/o Manish Dhomane,
Aged 27 years,Occupation - Housewife,
resident of House No.10, Datta wadi,
Wardhekar Layout, Shegaon Rahatgaon Road,
Tq. and District Amravati, Maharashtra. ... NON-APPLICANTS.
WITH
CRIMINAL APPLICATION [APL] NO. 195/2023.
Nisha Dilip Dhomane,
Aged 30 years, Occupation - Student,
resident of House No.194, Khari Ward,
Bhopal Road, Village Pandhurna,
District Chindwara (Madhya Pradesh). ... APPLICANT.
VERSUS
Rgd.
Judgment apl142.23
3
1.State of Maharashtra,
Through the Police Station Officer,
Nandgaonpeth Police Station,
Amravati.
2.Vaishnavi w/o Manish Dhomane,
Aged 27 years,Occupation - Housewife,
resident of House No.10, Datta wadi,
Wardhekar Layout, Shegaon Rahatgaon Road,
Tq. and District Amravati, Maharashtra. ... NON-APPLICANTS.
WITH
CRIMINAL APPLICATION [APL] NO. 196/2023.
Dilip Mahadeorao Dhomane,
Aged 61 years, Occupation - Service,
resident of House No.194, Khari Ward,
Bhopal Road, Village Pandhurna,
District Chindwara (Madhya Pradesh). ... APPLICANT.
VERSUS
1.State of Maharashtra,
Through the Police Station Officer,
Nandgaonpeth Police Station,
Amravati.
2.Vaishnavi w/o Manish Dhomane,
Aged 27 years,Occupation - Housewife,
resident of House No.10, Datta wadi,
Wardhekar Layout, Shegaon Rahatgaon Road,
Tq. and District Amravati, Maharashtra. ... NON-APPLICANTS.
Rgd.
Judgment apl142.23
4
---------------------------------
Mr.A.S. Mardikar, Senior Advocate with Mr. S. Katkar,
Advocate for Applicants.
Mr. S.B. Bissa, A.P.P. for Non-applicant No.1.
Mr. S.V. Sirpurkar, Advocate for Non-applicant No.2.
----------------------------------
CORAM : VINAY JOSHI AND
VRUSHALI V. JOSHI, JJ.
DATE : MAY 03, 2024.
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Heard.
2. These applications under Section 482 of the Code of
Criminal Procedure, seek similar relief of quashing of the charge
sheet No.91/2022 arising out of first information report bearing
Crime No.69/2022 registered with Nandgaon Peth Police Station,
District Amravati for the offence punishable under Sections 498-A,
354-A, 313, 506[2], 504 read with Section 34 of the Indian Penal
Code and Sections 3 and 4 of the Dowry Prohibition Act.
Considering the contentions canvassed and similar issue involved in
Rgd.
Judgment apl142.23
all these applications, they are taken up together for disposal by
passing common order.
Admit.
3. At the instance of a report lodged by non-applicant no.2 -
Vaishnavi [informant/wife], the aforesaid crime came to be
registered against in all 5 persons. Husband of the informant namely
Manish has not applied for quashing. Rest of the family members i.e.
father-in-law, mother-in-law, sister-in-law and brother-in-law have
applied for quashing by filing separate applications.
4. The informant has initially filed an application with the
police on 15.09.2021 alleging matrimonial harassment at the hands
of applicants and her husband. Later on again she has filed a written
report on 07.10.2021 raising similar grievance. During the course of
enquiry, on 19.02.2022 the police have recorded statement of the
informant on the basis of which the aforesaid crime has been
registered.
Rgd.
Judgment apl142.23
5. The informant got married with Manish on 05.01.2021 as
per Hindu customary rites. After marriage she resumed cohabitation
with her husband and in-laws at Pandhurna, Chindwara district in
State of Madhya Pradesh. The husband of informant namely
Manish was serving at Mumbai. Accordingly after few days the
informant went to reside with her husband at Mumbai in a rented
premises. It is her contention that her parents-in-law, brother-in-
law and sister-in-law [applicants] came to Mumbai and started
raising multiple demands. They were insisting her to bring Car, LED
TV, AC from her parents. They used to humiliate her by saying that
in the marriage gift articles have not been offered and thus, she was
subjected to cruelty at the instance of demands of various articles as
well as, monetary demand. After few days, all the applicant left
Mumbai, which was followed by her husband continuing to harass
the informant by humiliating that her father has not offered
valuables in the marriage.
6. It is the case of informant that at the time of Holi festival
she came to Pandhurna on 13th April, but, again the applicants
Rgd.
Judgment apl142.23
insisted her to meet the monetary as well as other demands. During
her stay at Pandhurana, while she was sleeping in the room,
applicants forcibly entered the room and tried to strangulate her
with the aid of a scraf. Some how the informant get herself rescued
from the murderous attempt. The informant immediately sent a
whatsapp message to her mother regarding the harassment, and the
happenings occurred with her. It was followed by informant's father
coming to Pandhurna and trying to convince applicants and husband
of informant, but, it yielded nothing. The informant returned to her
parents house and after one month again she resumed cohabitation
with her husband.
7. Within few days, her husband was transferred from
Mumbai to Nagpur, and thus, they came to reside at Nagpur. The
informant became pregnant during said period. Her parents-in-law,
brother-in-law and sister-in-law telephonically insisted her to meet
the demands of various articles. The informant stated that on 14 th
August all applicants came to Nagpur and enquired as to why her
father has not given car as a gift. Finally by getting rid of the
Rgd.
Judgment apl142.23
incessant harassment she left her matrimonial house and came to
Amravati. At that time also all the applicants conveyed that she
should not return back unless the demands are fulfilled. The
informant has particularly alleged that her husband gave fist blow at
her stomach, which resulted into aborting the child. After return
from her husband's house, she has lodged the report.
8. The informant in her police statement has spoken about
the details about monetary demands, harassment and sufferings.
Particularly she alleges that while she was staying at Mumbai on
22.03.2021, her brother-in-law came to Mumbai and in absence of
her husband, tried to embarrass her and thus, tried to outrage her
modesty.
9. The learned Senior Counsel appearing for all applicants
has straneously argued that the allegations leveled in the first
information report and the material collected during the course of
investigation does not make out a prima facie case. It is submitted
that majority of allegations are against the husband, who is not
Rgd.
Judgment apl142.23
before the Court. The learned Senior Counsel relying on the
decision of Supreme Court in case of Kans Raj .vrs. State of Punjab
and others - [2000] 5 SCC 207, to submit that the tendency of
implicating all family members in matrimonial dispute is at rise and
on mere conjectures and surmises, the family should not be roped
into the matrimonial proceeding.
10. The learned Senior Counsel took us through certain
documents to impress that during the period from 03.04.2021 to
17.04.2021 containment zone was declared at Pandhurna, and thus
it was impossible to enter into said zone. The documents are
tendered to show that father-in-law was detected as 'Covid positive'
and was hospitalized from 03.04.2021 to 22.04.2021, and thus, the
allegation regarding harassment during said period is improbable. It
is submitted that there were exchange of notices, wherein in notice
reply dated 15.09.2021, the incident of abortion is totally missing.
According to applicants, due to strained relationship, the informant
has exaggerated the allegations from time to time, and thus, in
absence of any specific instance, prima facie case does not exist.
Rgd.
Judgment apl142.23
11. On the other hand, the learned Counsel appearing for the
informant once again took us to the written complaint along with
statement of the informant recorded during the course of
investigation. We have also been taken through various statements
which particularly relates to informant supporting and reiterating the
same allegations against the applicants. The learned Counsel for the
informant particularly attracted our attention to two messages dated
13.04.2021 and 20.08.2021, sent by the informant to her mother on
whatsapp. For the sake of convenience, we are reproducing the same
as under :
Message dated 13.04.2021.
"mummy papa ne navin car deta mantale hote
ajun care dile ni manun maza husband Ani maze
sasu sasre Ani nanad der maza sharerik Ani
mansik chhal kart ahe. mala fashi deun
marnyach prayatnh kela mi jorat ordat hoti tari
pan maza var jor jabadasti karnyat Ali Mummy
papa mala ethun geun ja he lok mala jivane
marun takel yana apn andhan ni dil manun maza
mansik"
Rgd.
Judgment apl142.23
Message dated 20.08.2021.
"Mummy sarv Jan mala khup mar zod kart aahe
sasu sasre der nanad maza navra pan ryancha
Kadun zala shivya galya kart ahe mala sharirik
Ani mansik tras tras det ahe Ani paishachi magni
kart ahe pandurnyala gadi pathava 4 vular Navin
ethe sarv saman pathava mal sangat ahe gar man
manun mala kuthe baher nighachi parmition pan
ni ahr" (emphasis supplied)
12. The above messages disclose that there was a demand of
car and in that regard she has been physically and mentally
harassed. The informant has particularly stated that all the relatives
of her husband used to harass her. She has also referred that once
she has been tried to be strangulated by the family members of her
husband. The lady has urged to her mother that due to harassment,
she should be taken back to her parental house, otherwise she would
be killed.
13. We have gone through the consistent statements of the
informant which prima facie conveys that there was repeated
Rgd.
Judgment apl142.23
demand of valuables. The informant has quoted certain instances, to
be specific at the time of Holi festival and when she came to Nagpur
and then thirdly on 14th August, when she has been repeatedly
harassed. The informant has specifically stated that her parents-in-
law, sister-in-law and mother-in-law came to Mumbai twice and she
was subjected to physical and mental harassment. The family
members of informant though played corroborative role, but, they
have supported her contention to the extent of the role of all
applicants.
14. The learned counsel for applicants took us through the
medical papers that the reason for abortion was a fall of informant in
bathroom. However, we do not wish to delve upon said aspect since
husband is not before us. The various statements of informant
coupled with whatsapp messages sent by the lady, prima facie
discloses allegations particularly against all applicants. True,
consistently the Supreme Court has taken a view that the tendency of
involving all the family members of husband in matrimonial
proceedings is at rise. However, on such assumption at prima facie
Rgd.
Judgment apl142.23
stage we cannot exclude the family members if convincing material
exists.
15. Besides that the learned counsel for the informant has
attracted our attention to the order of this Court 28.06.2022, passed
in Criminal Application No.808/2022. It reveals that applicants have
earlier approached this Court for quashing of the same first
information report. This Court after hearing the matter has
expressed that there exists a prima facie case against all applicants,
and on that basis declined to exercise our inherent jurisdiction. On
that basis, it has been argued that in the wake of such position, the
second application for quashing may not be entertained.
In response, the learned Senior Counsel has relied on the
decision of Supreme Court in case of Anil Khadkiwala .vrs. State
[Government of NCT of Delhi] and another - [2019] 17 SCC 294, to
contend that second application under Section 482 of the Code is
maintainable. We have no hesitation to say that without looking to
the facts, we cannot say that second application is not maintainable.
However, fact remains that after considering the first information
Rgd.
Judgment apl142.23
report and the investigation papers, this Court has expressed its non-
inclination by holding that prima facie case is made out. The said
rejection by this Court has not been challenged further. Now the
case has traveled much more, as the investigation is complete and
having been found prima facie material, charge sheet is also filed.
In the circumstances, it cannot be said that now there is no material
against the applicants. Completion of investigation and filing of
charge sheet always add to the original material which was before
us. It reveals that certain orders showing pandemic period and some
applicant affected by Covid were not produced before this Court in
earlier application. We cannot re-assess the things by considering
some more things which were existing earlier, but, not produced for
the reasons best known to applicants. In such a background, the
documents tendered in support of defence can be considered at the
time of trial as a defence material. While invoking the powers under
Section 482 of the Code, the Court cannot marshal the evidence, nor
hold mini trial. Existence of prima facie material makes out a triable
case. Particularly in the wake of earlier rejection, we are not inclined
to exercise our inherent powers. In substance, no case for quashing
Rgd.
Judgment apl142.23
of the criminal prosecution is made out, Criminal Applications
therefore, stand rejected.
JUDGE JUDGE
Rgd.
Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 08/05/2024 10:41:22
