1 CriApl363/1998 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 363 OF 1998 1 Shivaji s/o Bajirao Shelke, Aged 29 years, Occupation Agriculture, Resident of Borda, Taluka Kallam, District Osmanabad Appellants 2 Janabai w/o Bajirao Shelke, Aged 57 years, Occupation Agriculture and Household, Resident of as above 3 Shahaji s/o Bajirao Shelke, Aged 33 years, Occupation Agriculture, Resident of as above 4 Vijaymala w/o Shahaji Shelke, Aged 30 years, Occupation Household, Resident of as above V E R S U S The State of Maharashtra Respondent Shri S.S. Chaudhari, Advocate for the appellants Shri K.S. Hoke-Patil, APP for the respondent/State CORAM : R.Y. GANOO, J. DATED : 11th November, 2011 ORAL JUDGMENT : 1. Appellant No. 1 Shivaji, appellant No. 2 Janabai, appellant No. 3 Shahaji and appellant No. 4 Vijaymala have filed this appeal being aggrieved by the Judgment and order dated 4th November, 1998, passed by the learned Additional Sessions Judge, Osmanabad, whereby each of the appellant was convicted under Section 498-A read with Section 34 of the Indian Penal Code and each of them was sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.200/- and in default to suffer simple imprisonment for one month. Each of the appellant is also convicted 2 CriApl363/1998 under Section 342 read with Section 34 of the Indian Penal Code and they are sentenced to suffer rigorous imprisonment for two months and to pay fine of Rs.100/- each and in default to suffer simple imprisonment for 15 days. Each of the appellant is acquitted for the offence under Section 313 read with Section 34 of the Indian Penal Code. The prosecution case, in gist, is as under : 2. Appellant No. 1 Shivaji is the husband of the complainant Asha (PW 4), appellant No. 2 Janabai is the mother-in-law of Asha (PW 4), appellant No. 3 Shahaji is the brother-in-law of Asha (PW 4) and appellant No. 4 Vijaymala is the wife of appellant No. 3 Shahaji. According to the prosecution, the aforesaid appellants in the company of co-accused harassed said Asha (PW 4) and demanded a sum of Rs.10,000/- for securing a job for appellant No. 1 Shivaji. It is also the case of Asha (PW 4) that a colour television was demanded. According to Asha (PW 4), her matrimonial life for about 1 ½ year soon after the marriage was comfortable, and thereafter, the appellants started harassing her. According to Asha (PW 4), she was made to abort her child by administration of medicine much against her wishes. It was also the case of Asha (PW 4) that she was confined in a room at Borda. Based on the aforesaid facts, said Asha (PW 3 CriApl363/1998 4) filed F.I.R. with the Osmanabad City Police Station on 29th January, 1996, at Exh. 43. Investigation was carried out and the charge-sheet came to be filed and the appellants were sent up for trial. Charge was framed against each of the appellant under Section 498-A read with Section 34, under Section 313 read with Section 34 and under Section 342 read with Section 34 of the Indian Penal Code (Exh.23/1). Each of the appellant pleaded not guilty and came to be tried. In the course of trial, the prosecution examined as many as seven witnesses. Their particulars are as under : 3. PW 1 Mr. Baburao Shelke is the person who was examined in order to prove charge under Section 342 of the Indian Penal Code, as he was the panch for the scene of offence panchnama. PW 2 is Mr. Govardhan Surwase, who was acting as a Police Patil, who had visited the house of Asha (PW 4) for the purpose of conducting inquiry as regards alleged detention of said Asha (PW 4). PW 3 Mr. Abdullah Shaikh is the person who had recorded the Crime bearing No. 24 of 1996 on the basis of a complaint which was transmitted to Kallam Police Station on 29th January, 1996. PW 4 is Mrs. Asha, who claims that she was subjected to a cruel treatment and that she was subjected to wrongful confinement. She is the main witness so far as the allegations against the appellants are concerned. PW 5 is Mr. 4 CriApl363/1998 Bharat Surwase, who claims to be the brother of Asha (PW 4) and he has been examined to support the allegations leveled by Asha (PW 4) against the appellants. PW 6 Mr. Prabhakar Kawade is the Police Head Constable then attached to Kallam Police Station, who had carried out a part of the investigation. PW 7 is Kavita Ambure, who was working as Medical Officer and was attached to General Hospital, Osmanabad and who had an occasion to examine Asha (PW 4). This witness was examined in connection with the abortion of said Asha (PW 4). 4. After having considered the case of the prosecution coupled with the evidence on record, it is apparent that according to Asha (PW 4), she was subjected to cruel treatment on two counts, viz; demanding of Rs.10,000/- from her father and demanding of colour television. In addition to the aforesaid allegations, it is the case of Asha (PW 4) that she was taken to a Doctor and she was administered some medicine, and, on account of the admission of said medicine, she aborted. 5. With the assistance of learned counsel of both sides, I have perused the entire record. The learned Advocate appearing on behalf of the appellants submitted as under: 5 CriApl363/1998 6. Perusal of evidence of Asha (PW 4) as well as Bhrat Surwase (PW 5) would go to show that according to Asha (PW 4), the demand was made for a sum of Rs.10,000/- to get a job for her husband (appellant No. 1) and to get a colour television. The learned Advocate for the appellants submitted that no specific dates are mentioned or even no months are mentioned in the evidence as well as in the F.I.R. to indicate the time when above cruel treatment was meted out to her. Secondly, it was pointed out by the learned Advocate for the appellants that Asha (PW 4) has admitted in her F.I.R. that when she had an occasion to meet Uttam Manik Shelke, being her neighbour and her sister Chingabai Tukaram Mane, she had informed to them about the cruel treatment at the hands of appellants. He pointed out that these two persons have not been examined by the prosecution, and as such, an adverse inference should be drawn against the prosecution. The learned Advocate for the appellants also pointed out that in the cross- examination of Asha (PW 4), she has admitted that five months after her marriage, her husband joined his service. According to the learned Advocate for the appellants, this admission on the part of Asha (PW 4) falsifies her allegation that a sum of Rs.10,000/- was demanded for getting job for appellant No.1 Shivaji. Learned Advocate for the appellants had also drawn my attention to the evidence of Asha (PW 4) as regards the 6 CriApl363/1998 allegations of abortion of Asha (PW 4) and taking of a particular medicine. As regards the abortion of Asha (PW 4), she claims that she was taken to the hospital of Dr. Smt. Deshpande at about 02.30 to 03.00 p.m. She also admits that she did not tell Dr. Smt. Deshpande that the appellants were committing abortion against her will. No doubt, she admits that when her husband beat her, she suspected that he is planning to do something in respect of her pregnancy. She admits that in the course of her journey Borda to Kalla and Kallam to Barshi, she did not tell to any other person that her husband was taking her for abortion against her will. She further admits that she was taken to another hospital, and in the said hospital, the liquid was given to her and her husband compelled her to consume the said liquid. A perusal of all this evidence would go to show that the stand taken by Asha (PW 4) that she was compelled to take medicine leading to her abortion is required to be seen with doubt. The evidence on record does not disclose that there was nexus between administration of liquid and her abortion. It is pertinent to note that the said abortion took place on or about 15th January, 1996. The F.I.R. has been filed by Asha (PW 4) on 29th January, 1996. In my view, the claim of Asha (PW 4) that she was subjected to abortion against her will is not proved beyond shadow of reasonable doubt. The prosecution has examined Kavita Ambure (PW 7), who is a Medical Officer 7 CriApl363/1998 attached to General Hospital, Osmanabad. She has certified that Asha (PW 4) had undergone an abortion. This examination has been conducted on 29th January, 1996. The learned Advocate on behalf of the appellants therefore submitted that if his submissions are accepted, then the case of prosecution as regards the allegations under Section 498-A of the Indian Penal Code cannot be accepted to confirm the conviction of the appellants. 7. The learned A.P.P. for the State objected to the submissions advanced by the learned Advocate for the appellants and contended that the evidence of Asha (PW 4) coupled with the evidence of Bharat Surwase (PW 5) are sufficient to hold that Asha (PW 4) was subjected to cruel treatment and to that extent conviction under Section 498-A of the Indian Penal Code is required to be confirmed. 8. After having perused the entire evidence and submissions advanced by learned Advocates, I am inclined to observe that the prosecution has failed to prove the guilt of the appellants as regards the charge under Section 498-A read with Section 34 of the Indian Penal Code beyond the shadow of reasonable doubt. The reasons are as under. 8 CriApl363/1998 9. The allegations leveled in the F.I.R. as regards demands of Rs.10,000/-, colour television and compelling Asha (PW 4) to undergo an abortion are no doubt set out in the F.I.R. However, so far as the allegations of demand of Rs.10,000/- and television, no dates or month in which those instances occured are mentioned. No doubt, the witnesses namely Asha (PW 4) and Bharat Surwase (PW 5) have denied the suggestion put up to them as regards the alleged cruelty. However, that by itself would not help the prosecution. It is also required to be noted that the husband of Asha (PW 4) i. e. appellant No. 1 Shivaji had secured a job five months after his marriage, and as such, the story that a sum of Rs.10,000/- was demanded to secure a job becomes doubtful, particularly because it is not the case of Asha (PW 4) that her husband (appellant No. 1) lost the job which he had secured five months after the marriage. It is pertinent to note that Manikrao Shelke and Chingabai to whom Asha (PW 4) had narrated about the cruelty have not been examined. No explanation is coming forth from the prosecution as to why these two material witnesses have not been examined. The evidence of Govardhan Surwase (PW 2), who was working as Police Patil goes to show that after his visit to the place of appellant No.1 where Asha (PW 4) was residing, he advised appellant No. 1 and his mother (appellant No. 2) to allow Asha (PW 4) to go to her parents’ place, and 9 CriApl363/1998 thereafter, Asha (PW 4) was sent to her parents’ place along with her brother, sister and father. This would clearly go to show that it is the case of prosecution that Asha (PW 4) had a chance to meet her parents definitely on or about 19th January, 1996. It is also not the case of prosecution that Asha (PW 4) was detained in her house all along and she was not allowed to visit her parents’ place. Even if it is accepted for a moment that Asha (PW 4) was not permitted to meet her parents on or about 19th January, 1996, when she was permitted to visit her parents, she had an equal opportunity of narrating to her parents about the cruel treatment meted out to her. In the normal course, if the married lady is treated with a cruel treatment by her in- laws, the natural conduct of such a lady is to inform her parents at the first available opportunity when she was subjected to cruelty or in any case at about a time when she gets chance to meet her parents. In the present case, the prosecution evidence shows that Asha (PW 4) was permitted to see her parents on 19th January, 1996. At that time, Asha (PW 4) had a chance and freedom to inform about her cruel treatment to her parents. This has not been done. This omission to inform her parents is a factor which goes against the prosecution. For all these observations, I am inclined to observe that the prosecution has failed to prove the charge under Section 498-A read with Section 34 of the Indian Penal Code and to that extent the 10 CriApl363/1998 impugned Judgment and order will have to be set aside. 10. The learned Additional Sessions Judge, Osmanabad convicted the appellants under Section 342 read with Section 34 of the Indian Penal Code. The gravamen of the charge under Section 342 of the Indian Penal Code is that a person is confined in such a manner that he is not in a position to move any direction in which the said person wishes to proceed. So far as the evidence of alleged wrongful confinement, the prosecution has examined two witnesses, namely; Police Patil Mr. Govardhan Surwase (PW 2) and Baburao Shelke (PW 1) who is said to have participated in the scene of offence panchnama. The evidence of Baburao Shelke (PW 1) on a close scrutiny goes to show that Madan Surwase, his son and daughter told him that their sister was wrongfully confined by her husband and mother-in- law. Accordingly, they requested him to approach the house of appellant No. 1. He claims that he in the company of Police Patil (PW 2) Govardhan Surwase went to the house of Shivaji Shelke (appellant No. 1). He found that appellant Nos. 1 and 2 present in the house. He advised them to send Asha (PW 4) to her parents place and within half an hour Asha (PW 4) was sent to her parents house. The evidence of PW 2 Govardhan Surwase goes to indicate that he went to the house of Asha (PW 4). He observed that 11 CriApl363/1998 appellant Nos. 1, 2 and Asha (PW 4) present in the house. He advised appellant Nos. 1 and 2 to send Asha (PW 4) to her parents place and accordingly Asha (PW 4) was sent to her parents place alongwith her brother, sister and father. If these two persons have been examined as and by way of independent witnesses as regards the charge under Section 342 of the Indian Penal Code, Asha (PW 4), no doubt in paragraph No. 6 of her examination-in-chief stated about the visit of her father, her brother to her house. She claims that on inquiry, appellant No. 2 told Baburao Shelke (PW 1) and Govardhan Surwase (PW 2) that she was inside the house. She further claims that when her parents asked her as to why the room was locked, that time her mother-in-law told that as she had been to the field, room was locked. She further claims that she was in the house and the room was locked. She claims that the lock was opened when she was lying inside the room. With this evidence, the prosecution wanted a conviction under Section 342 read with 34 of the Indian Penal Code so far as appellants are concerned. After having gone through the record and after hearing arguments of both the sides, I am inclined to observe that the prosecution has failed to prove the guilt of the appellants as regards charge under Section 342 of the Indian Penal Code is concerned. The word of Asha (PW 4) that she was confined in the room and it was locked, is 12 CriApl363/1998 required to be seen with doubt. If at all the appellants intended to see that Asha (PW 4) is confined in their house, they would not have allowed Asha (PW 4) to go to her parents after the visit of PW 2 Govardhan Surwase. It is the case of Asha (PW 4) that she was kept in the room and the room was locked. This evidence of Asha (PW 4) is falsified on account of scene of offence panchnama, wherein the detention of Asha (PW 4) in the room and consequently lock of the said room put by any of the appellant, is silent. Considering the aforesaid evidence, I am inclined to observe that the prosecution has failed to prove the guilt of the appellants under Section 342 read with Section 34 of the Indian Penal Code. Consequently, the order of conviction passed against the appellants is also required to be set aside. For the aforesaid reasons, the appeal deserves to be allowed. ORDER 1. The appeal is allowed. 2. The appellants are acquitted of charge under Section 498-A read with Section 34 and under Section 342 read with Section 34 of the Indian Penal Code. 3. The Judgment and order dated 4th November, 1998 thereby convicting each of the appellant under Section 13 CriApl363/1998 498-A read with Section 34 of the Indian Penal Code and sentencing them for imprisonment and fine as set out in the impugned Judgment is set aside. 4. Similarly, the Judgment by which each of the appellant is convicted under Section 342 read with Section 34 of the Indian Penal Code and sentencing them for imprisonment and fine as mentioned in the Judgment, is set aside. 5. The bail bonds of the appellants shall stand cancelled. 6. If any of the appellant has deposited fine amount, the same be refunded to him. ( R.Y. GANOO, J. ) SRM/criapl/363/98/11/11/11