-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 250 OF 1995 CRIMINAL APPEAL NO. 250 OF 1995 CRIMINAL APPEAL NO. 250 OF 1995 Vijay Dashrath Manjrekar : .. Appellant. r/a. Vishal, 127/35,] : 35 Pantnagar, Bombay 400 075. : V/s. 1. The State of Maharashtra : .. Respondents. : 2. Abaji Ramchandra Sawant : r/a. Plot No.A, Flat No.8, : Premier Co-operative Hsg.Society : Ltd., Kurla, Bombay 400 024. : ---- None for the Appellant. Mr. Y.M. Nakhawa, APP for the Respondent No.1- State. None for the Respondent no.2. --- WITH WITH WITH CRIMINAL APPEAL NO. 68 OF 1996 CRIMINAL APPEAL NO. 68 OF 1996 CRIMINAL APPEAL NO. 68 OF 1996 The State of Maharashtra : .. Appellant. V/s. Abaji Ramchandra Sawant : .. Respondent. r/a. Plot No.A, Flat No.8, : Premier Co-operative Hsg.Society : Ltd., Kurla, Bombay 400 024. : ---- Mr.Y.M.Nakhawa, APP for the Appellant-State. None for the Respondent. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 06th FEBRUARY,2009 DATED : 06th FEBRUARY,2009 DATED : 06th FEBRUARY,2009 ORAL JUDGEMENT : ORAL JUDGEMENT : ORAL JUDGEMENT : -: 2 :- 1. Both the above said Appeals arise out of a common judgment and order dated 16.07.1993 passed by the Additional Sessions Judge, Greater Bombay in Cri. Appeal No. 168/1991, thereby acquitting the accused- Abaji Ramchandra Sawant for the offence punishable under section 497 and 498 of the Indian Penal Code. Hence, I proceed to decide both the appeals by this common judgement. 2. Criminal Appeal No. 250 of 1995 is filed by the complainant -Vijay Dashrath Manjrekar and the Criminal appeal no. 68/ 1996 is filed by the State. 3. The complainant- Vijay Dasharath Manjrekar filed a complaint which was numbered as criminal case no. 39/S/1990 in the court of Additional Chief Metropolitan Magistrate, 4th Court, Girgaon, Mumbai against the accused- Abaji Ramchandra Sawant for committing the offence punishable under section 497 and 498 of the IPC. The case of the complainant, in short, is that PW-2 Ulaka is his wife and his marriage with said Ulka was solemnised in the year 1967 at Bombay. In the year 1979, the complainant and his wife went to reside at Chunabhatti. It is alleged that PW-2 Ulka was knowing accused- Abaji Ramchandra Sawant since year 1973. The complainant was also knowing the accused since then. The wife of the accused was a school- mate of PW-2 Ulka. It was further -: 3 :- alleged that the accused developed intimacy with PW-2 Ulka and taking advantage of the same he committed sexual intercourse on PW-2 Ulka between the period from August, 1981 to March, 1982. It was further alleged that PW-2 Ulka did not listen to her husband, the complainant, and she continued illicit relations with the accused. The complainant thereafter started ill-treating PW-2 Ulka. As a result PW-2 left her house on 20.09.1982 as per the assurance of the accused that he will maintain her. The complainant thereafter lodged a report at police station. Ultimately, the complainant found that PW-2 Ulka was residing with the accused. 4. On filing complaint, the learned Metropolitan Magistrate recorded complainant’s verification statement and issued process against the accused under sections 497 and 498 of the IPC. Thereafter, the complainant’s evidence was recorded and charge was framed against the accused for the above said offences. The accused pleaded not guilty to the charge and claimed to be tried. The complainant, in support of his case got examined himself and also examined five more witnesses, namely, PW-2 Ulka, PW-3 Narayan, PW-4 Nirmala, PW-5 Vijay Kadam, the Inspector of LT Marg Police Station, PW-6- Raghoji Chitkar. After the evidence of the prosecution was over the statement of the accused under section 313 of the -: 4 :- Cr.P.C. was recorded. The accused also examined Advocate Sharavan Kumar Pandey, as defence witness. The defence of the accused was that the complainant-husband had ill-treated his wife PW-2 Ulka and, therefore, Ulka wanted to come out of the house of the complainant and the accused being acquainted with her with moral intention to help Ulka, accommodated her in his house he, however, denied illicite relationship with Ulka. 5. The learned Additional Chief Metropolitan Magistrate, 4th Court, Girgaum, Mumbai, who disposed of the criminal case of the complainant by his order dated 10.07.1991 was pleased to convict the accused for the offence punishable under sections 497 and 498 of the IPC and sentenced him to pay fine of Rs.2000/- on each counts, in default to pay the above cost he was to suffer R.I. for one month on each count. 6. The accused Abaji Ramchandra Sawant being aggrieved and dissatisfied with the said judgment and order dated 10.07.1991, filed the criminal appeal no. 168 of 1991 in the Sessions Court at Greater Bombay. In this appeal, the complainant was made as a respondent no.1 and the State of Maharashtra was impleaded as a respondent no.2. The said appeal came to be disposed of by the judgment and order dated 16.07.1993, which is being -: 5 :- impugned in the above appeals. The learned Additional Sessions Judge, Gr.Bombay by the said judgment and order allowed the appeal of the accused and conviction and the sentence of the accused under section 497 and 498 of the IPC was came to be set aside. 7. As stated above, the complainant in order to prove or establish the guilt of the accused examined six witnesses. The complainant examined himself as PW-1. In order to establish the complainant’s marriage, the evidence of the complainant himself, his wife PW-2 Ulka and PW-3 Narayan is adduced. PW-4 Nirmala, who was maid servant of the complainant and PW-6 Rathoji Chitkar, who is the friend of the complainant, were also examined. Evidence of all these witnesses came to be adduced to corroborate the version of the PW-2 Ulka, the wife of the complainant. PW-5 is the Police Officer. 8. Thus in order to prove/ establish the offence under sections 497 and 498, the complainant mainly relied upon the evidence of PW-2 Ulka, his wife. It is interesting to note that PW-2 Ulka was not initially cited as witness by the complainant. However, she was examined to substantiate the complainant’s case. 9. The learned Additional Sessions Judge found that -: 6 :- the evidence of PW-2 Ulka is unworthy of credence full of improbabilities and contradictions and therefore, the learned Judge held that the evidence of PW-4 and PW-5 which is in the nature of corroboration would not help the complainant to prove his case. The learned Addl. Sessions Judge quoted following several circumstances while coming to the conclusion that the evidence of PW-2 is unworthy of credence : (i) That PW-2 Ulka in her statement stated that as the wife of the accused, Smt. Smita was her friend from school days and she had told Smita about the sexual relations with the accused. This statement is highly improbable as ordinarily, in normal circumstances, no married woman will accept or digest this knowledge and if this is so, Smita would not have allowed PW-2 Ulka to stay in her house at a later time. (ii) PW-2 Ulka admitted that while living in the house of the accused from 22.02.1982 she had sexual intercourse with the accused specially when it is brought on record that the accused was living alongwith his wife Smita, his four sons, his mother and sister and the house of the accused was very small consists of two rooms and a kitchen. -: 7 :- (iii) The letter exhibited as Exh. 1 which was written by PW-2 Ulka to Smt. Smita on 14.09.1982. In this letter, Ulka has stated that she was practically in confinement in her house and was deadly assaulted and beaten by the complainant and the only option was left with her to either suicide or to leave her husband. PW-2 Ulka requested Smita if at all she was compelled to leave her house, she would expect a helping hand from Smita and Smita should explain all these circumstances to her husband- accused. The contents of this letter are admitted by PW-2 Ulka. (iv) Ulka in para-5 of her examination-in- chief stated "I left the house on 20.09.1982. I left the house as arranged by the accused. I went to CIT bus stop situated at Chuna Bhatti at about 9.45 to 10 a.m. There accused alongwith his wife and one Nandu Navare were present. All the three took me to Tilak Nagar police station". (v) Lastly the affidavit at Exh. 3 sworn by PW-2 Ulka was proved by the defence witness Advocate Pandey. In this affidavit PW-2 Ulka affirmed that she left the house of her husband as she was suffered at the hands of her husband and she was fed up with life. It was further stated in the affidavit that Smita was her -: 8 :- cousin and she had no other place in Bombay, hence was residing with her cousin Smita. 10. With the help of Mr. Nakhawa, learned APP I have gone through the deposition of PW-2 Ulka and I find that her evidence is of full of improbabilities and contradictions. If the letter at Exh. 1 and the affidavit at Exh. 3 is considered in proper perspective then it cannot be said that the complainant has proved that the offence under section 498 of IPC was committed by the accused. The offence under sections 497 and 498 is not proved beyond reasonable doubt as the evidence of PW-2 Ulka does not inspire confidence. The evidence of PW-4 and PW-5 is also not helpful to the complainant since it was adduced only to corroborate the version of PW-2 Ulka. 11. The alleged incident is of the year 1982. The accused was acquitted in the year 1993 by the Sessions Judge. The view and the view taken by the learned Additional Sessions Judge is a possible view and it is not permissible in appeal against acquittal to substitute one view by another possible view. I find both the are appeals without any merit and the same are accordingly dismissed. -: 9 :- (R.V.MORE,J.) .....