1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 46 OF 2000 The State of Maharashtra, through P.S.O.,Police Stn. Jintoor, through Latabai w/of Dattarao Waghmare, age 21 years, occup. Nil. r/of at present Kausadi, Appellant/ori. Tq.Jintoor,Dist.Parbhani Complainant. versus 01. Dattarao s/o Kusnaji Waghmare, age 25 years, occup. Agril. r/of Undegaon, Taluak Jintur, District Parbhani. 02. Kusnaji s/o Kerba Waghmare, age 65 years, occup. agril. r/of as above. 03. Rajubai w/o Kusnaji Waghmare, age 55 years, occup.household, r/of as above. 04. Munja s/o Kusnaji Waghmare, age 35 years, occup. agril. r/of as above. 05. Balasaheb s/o Bhagoji Waghmare, age 22 years, occup. and r/of as above. 06. Bhagoji s/o Vithoba Waghmare, age 60 years, occup.household, r/o as above. 07. Muktabai w/o Bhagoji Waghmare, age 55 years, occup. and r/of as above. 08. Vachalabai w/o Mungaji Waghmare, Respondents/ age 30 years,occup.& r/o as above. accused. 2 Smt.B.R.Khekale, A.P.P. for the appellant-State. Shri P.M.Yelnoorkar Advocate for Respsondent Nos. 1 to 4 and 8. Shri R.K.Ashtekar, Advocate, holding for Shri M.b. wHATTE, aDVOCATE FOR rESPONDENT nOS. 5 TO 7. Coram : P.R.Borkar,J. Date : 08/01/2010. ORAL JUDGMENT 01. This is an appeal preferred by the State, being aggrieved by the judgment and order passed by the learned Judicial Magistrate, First Class, Jintoor, District Parbhani, on 23.8.1999 in Regular Criminal Case No. 171 of 1996, thereby acquitting the Respondents-original accused of the offence punishable under Section 498-A read with Section 34 of the Indian Penal Code. 02. Briefly stated, the facts as narrated by complainant PW-1 Latabai in her complaint at Exhibit 45, on the basis of which the investigation carried out and charge-sheet was filed, are that present Respondent No.1 Dattarao is her husband, Respondent Nos. 2 and 3 are parents of Respondent No. 1, Respondent No. 4 is 3 the elder brother of Respondent No. 1, Respondent No. 8 is the wife of Respondent No.4, Respondent Nos. 6 and 7 are parents of Respondent No. 5 and Respondent No.5 is cousin of Respondent Nos. 1 and 4. It is the prosecution case that Respondent Nos. 5 to 7 were residing at village Undegaon in neighbourhood of other Respondents. Undegaon is the native place of residence of the Respondents. Respondent Nos. 4 and 8 were admittedly residing at Parbhani, where Respondent No. 4 was in service. 03. As per the complaint, marriage of complainant Latabai and Respondent No.1 Dattaram took place on 19.3.1993 at village Kausadi, where parents of Latabai reside. After marriage, Respondent No.1 took education for one year in I.T.I. at Parbhani and completed a course. It is alleged that thereafter, Respondent Nos. 1 to 4 and 8 told Latabai to bring Rs.25,000/= from her parents for securing service for Respondent No. 1 and due to non-fulfillment of the demand of money, she was kept on starvation and was not given 4 clothes and she was even beaten by Respondents. Latabai sent letters to her parents informing them that Respondent Nos. 5 to 7 were instigating Respondent No.1 to beat her. Nagorao, father of Latabai, agreed to pay Rs.10,000/= and asked Respondents to arrange for remaining amount, but Respondent No.1 and his parents were not ready to accept Rs.10,000/= from him. There was also attempt for reconciliation about one month before filing complaint on 5.6.1996, by calling a meeting at Jintoor. However,there could not be settlement regarding amount to be paid by father of Latabai to the Respondents. Hence, complaint was filed alleging demand of money and the ill-treatment due non compliance of the demand. Crime for committing offence under Section 498-A I.P.C. was registered against all the accused. Investigation was carried out and charge sheet was sent to the court. 04. On behalf of the prosecution, in all five witnesses were examined including the Investigating Officer. However, their evidence was 5 not believed by the trial court and, therefore, all accused were acquitted of the offence alleged and against the said order of acquittal, present appeal is filed. 05. In this case, complainant Latabai is examined on oath at Exhibit 40 and she mainly deposed in terms of her complaint at Exhibit 45 which is reproduced hereinabove. She also produced letters (Exhibits 43 and 44) which she had sent to her parents, but did not say anything regarding contents thereof. In the letter Exh.43, which is not dated, a serious instance was alleged to have taken place to the effect that at one time, Respondent Nos. 1 to 4 had poured kerosene on Latabai and attempted to set her on fire, but since she shouted, one Datta Dada came and rescued her. It is further alleged in the letter that for five months Latabai was not given food properly and at times she was given stale food. The instance of attempting to kill Latabai is something which, if true, would not have forgotten by her while lodging the complaint on 5.6.1996 6 or in her deposition before the court, but she did not say a word in her evidence about the said attempt on the part of Respondents, nor did any other witness has deposed that Respondent Nos. 1 to 4 had attempted to kill Latabai by pouring kerosene on her person and that but for shouts by Latabai and intervention by one Datta Dada, she was saved. 06. In another letter at Exh. 44 dated 3.4.1995, it is alleged by Latabai that Respondent No. 4 Munjaji had attempted to rape her on earlier night i.e. 2.4.1995. It is alleged that Respondent No. 4 first asked the children to go for sleep in her room and attempted to commit rape on Latabai but since Respondent No.8 awoke, Latabai was saved from her dishonour. In the letter, she raised a question to her father whether she was married with Respondent No.1 or Respondent No.4. Certainly, the allegation of attempt of rape is a very serious allegation and yet, not a word is spoken about it by Latabai either in her complaint to the police or in her 7 deposition before the court. 07. It is submitted by learned counsel for the Respondents that it is unnatural that the complainant would forget such serious instances referred to in the letters at Exhibits 43 and 44, and would not depose to about the same in her evidence before the court or would not refer the same in the complaint. The prosecution witnesses including parents of complainant Latabia, failed to say anything about the same instances in their oral evidence. It is also argued that this omission only indicates that the letters Exhibits 43 and 44 are fabricated and the evidence produced in the court is unreliable as the same lacks genuineness or trustworthiness about the incidents allegedly took place. 08. Another limb of arguments by the defence Advocates is that, admittedly Latabai had filed an application bearing M.A. No.217 of 1997 for grant of maintenance, the copy of which is produced by Respondents at Exhibit 89. In the said 8 application also, there is no reference to the incident of attempt to kill Latabai or Respondent No. 4 having attempted to dishonour her. All that is stated in the application is that in May 1997 for not bringing amount of Rs.25,000/= from her parents, Latabai was beaten by Respondent No.1 and she was taken to her parental house and since then she was residing with her parents. In fact, it is the case of the complainant before the trial court that on receiving letters (Exhs. 43 and 44), her father came to her in-laws house and took her with him and since then she is residing with her parents and that in spite of several attempts for reconciliation, Respondents insisted Latabai for Rs.25,000/= and refused to accept Rs.10,000/= offered by her father. 09. Learned Trial Court has referred to letters (Exhibits 43 and 44) and observed that in the letter Exhibit 43, there is a reference regarding the demand of amount of Rs.10,000/= and not to Rs.25,000/= and yet, the case tried to be made out before the court is that actual demand 9 was for Rs.25,000/= and father of Latabai could manage only for Rs.10,000/= and offered the same to the Respondents, but they refused to accept the said amount and insisted on Rs.25,000/=. This case is falsified by the contents of the letter Exh.43. In the circumstances, a serious doubt arises whether there was really any demand and ill-treatment on that count as claimed by the complainant. 10. It is further argued on behalf of the Respondents that as per the cross examination of Latabai, when her marriage took place in the year 1993, her husband was taking education in I.T.I. at Parbhani and was residing with Respondent No.4 Munja. She denied suggestion that during the period 1993 to 1995 her brother Ukandi, who is PW-3, was serving in Spinning Mill at Parbhani. She stated that Respondent No.4 Munja was residing at Parbhani since 1993 and was serving in a shop of footwear of another person. So, it is not that all accused persons were residing at village Undegaon. Respondent Nos. 4 and 8 were residing 10 at Parbhani whereas Respondent Nos. 2, 3 and 5 to 7 were residing at village Undegaon. As per the cross examination of Latabai, initially she was residing at Undegaon. Then she said that she was residing with her husband at Parbhani as well as at Undegaon. She also admitted that her hushand was studying in third year of B.A. in D.S.M. College, Parbhani. According to Latabai, after Diwali of the year 1994, she had gone to Parbhani and resided there for about eight months and thereafter she did not reside at Parbhani. The letters Exhibits 43 and 44 were written by her one after another, with a gap of 2 to 4 days. Letter Exhibit 44 is dated 3.4.1995. The complaint is dated 5.6.1996. 11. Omission was brought on record during cross examination of Latabai that she had not stated in her complaint to the police that her husband and brother-in-law had attempted to set her on fire by pouring kerosene on her person. She also admitted that she had not stated in her complaint to the police that her brother-in-law 11 (Respondent No.4) had caught her hand with bad intention. The complainant Latabai in her deposition stated that she was ready to reside with accused persons. Ordinarily, if really there was incident of Respondent No. 4 holding her hand with bad intention, she would have refused to live in the family of which Respondent No.4 was a member and on the contrary, she would have insisted on living with her husband separately. Question also arises whether she really desired to live in the family of Respondents, considering her serious allegation that once Respondent No. 1 and 4 had attempted to kill her by pouring kerosene on her person and there was severe ill-treatment to her for non-compliance of demand by Respondents for money. Moreover, it is also clear from the evidence of all witnesses that there were several meetings for reconciliation. 12. It has also come in the evidence that when Latabai was residing at her parents' house, she had consumed endrine and that was two years before her deposition recorded on 23.6.1998. In 12 other words, somewhere around the time she lodged complaint with the police, she had consumed poison. 13. Evidence of PW-3 Ukandi, brother of Latabai, needs to be examined so as to know whether Latabai was telling truth. PW-3 Ukandi in his cross examination para 3 stated that Respondent Nos. 5 to 7 were not joint in mess with Respondent No.1 or his parents. After marriage, initially for 1-1/2 years the complainant was residing at Undegaon and thereafter she and accused No.1 started residing at the house of Respondent no. 4 Munja at Parbhani which continued till present dispute arose. In such circumstances, when they were residing at separate places, there was no occasion for Respondent Nos. 2 and 3 to ill-treat the complainant for non payment of amount. Similarly, there was no occasion for Respondent Nos. 5 to 7 to instigate Respondent No.1 to beat the complainant. In paragraph 4 of his cross examination, PW-3 Ukandi stated that about 4 to 5 months after the stay of 13 complainant along with accused No.1 at Parbhani, he received letters Exhibits 43 and 44 and within 8 to 15 days thereafter, he along with his father went to the house of Respondent No.4 at Parbhani. He admitted that at that time accused Nos. 5 to 7 were not present. He also admitted that 2 to 4 months after bringing the complainant Latabai to their house, she had consumed poison and 8 to 10 days after that incident, he came to Kausadi. Before Police, complainant Latabai gave false statement that she unknowingly consumed endrine. 14. If we consider the evidence on record discussed above, it appears that there is tendency to exaggerate and make wild allegations. Obvious things or events which would not be ordinarily forgotten, are not mentioned either in the complaint or even in the application for maintenance, but are being deposed before the Court. Under the circumstances, there is reason to believe that the alleged letters Exhibits 43 and 44 may not be genuine as those were not produced along with the complaint, but only at the 14 time of evidence in the court two years after lodging the complaint. 15. Considering the totality of the circumstances and evidence on record, in my opinion, this is not a case wherein interference in the judgment of acquittal recorded by the trial court is called for. Benefit of doubt is rightly given by trial court to the accused. 16. In the result, appeal fails and the same is accordingly dismissed. pnd/criapl46.00 (P.R.BORKAR, J.)