1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 74 OF 2009 State (through P.I. Canacona Police Station, Canacona-Goa). ... Appellant versus 1. Mr. Girish @ Anand Rajadhyax s/o Laxmikant Rajadhyax, r/o H. No. 297, Palolem, Canacona Goa. 2. Smt. Urmila Rajadhyax(expired) w/o Laxmikant Rajadhyax, r/o H. No. 297, Palolem, Canacona Goa. 3. Mr. Swarada Sardessai w/o Suraj Sardessai r/o H. No.A-3/2, Vaibhav Apartment, Dvorliim, Salcete Goa. 4. Suraj Sardessai, s/o Anand Sardessai r/o H. No. A-3/2, Vaibhav Apartment, Dvorlim, Salcete Goa. ... Respondents Shri C. A. Ferreira, Public Prosecutor for the Appellant. Shri S. S. Kakodkar, Advocate for Respondent Nos.1, 3 and 4. 2 CORAM : N. A. BRITTO, J. DATE : 24TH SEPTEMBER, 2009. ORAL JUDGMENT This appeal is filed by the State against the acquittal of the accused under Section 498-A r/w 34 I.P.C. by Judgment dated 27-2-2009 of the learned J.M.F.C., Canacona. 2. The complainant(first informant) PW1/Vibha Rajadhayax had got religiously married on 25-4-2002 to accused No.1 Girish Rajadhayax. The complaint was filed by her against her husband namely A-1/Girish, her mother-in-law A-2/ Urmila, her husband's sister A-3/Swarada and her husband A-4/Suraj. The complainant/PW1/ Vibha's marriage was an arranged marriage and was arranged through Vibha's mother's sister who was residing in the same building at Margao where PW1/Vibha's sister-in-law, the said A-3/ Swarada was residing. The marriage was religiously solemnized on 25-4-2002, and both the parties lived together at the matrimonial house at Palolem, Canacona until 12-11-2002, when PW10/Pandurang Kamat Mad came and took PW1/Vibha on account of the marriage of her sister which was to be solemnized on 1-12-2002. PW1/Vibha and her husband/accused No.1/Girish have not lived together thereafter, though it was claimed that on 16-11-2002 when PW1/Vibha came with her parents with 3 Diwali sweets, the matrimonial house was locked, and the sweets which were brought were left behind with the servants of the family of the accused, but were returned to the family of PW1/Vibha through her uncle PW3/Anil Kamat. 3. As already stated, the complaint came to filed by PW1/Vibha only on 21-2-2003. 4. The case of the prosecution was that between 25-4-2002 till 21-2-2003, all the accused persons in furtherance of their common intention subjected the complainant PW1/Vibha to harassment and cruelty by abusing and assaulting her with a view to meet their unlawful demand of dowry consisting of a pair of diamond earrings, one carved cot, godrej cupboard and cash of Rs.3,00,000/- to enable A-1/Girish to start a poultry. In support of its case, the prosecution examined as many as 12 witnesses which included PW12/Serafin Dias, the then Police Inspector of Canacona Police Station. Although the complaint(F.I.R.) was drafted by an advocate, no care was taken to see that the period of cruelty was restricted upto 12-11-2002. 5. The defence also examined two witnesses including one Shaila Rajadhayax. 4 6. The complainant was examined as PW1 and she narrated the version of her harassment and assault. According to her, the first assault is stated to have taken place in the second week of July, 2002, in her matrimonial house in the presence of her father PW10/Pandurang, her mother who was not examined and PW7/Shashinakar Morajkar who is a friend of the said PW10/Pandurang, and who incidentally has not at all referred to the said incident of assault. The second incident of assault is stated to have taken place on 10th November, 2002, when the family had planned to go to Chikancode in Karnataka, when according to the said complainant, she was assaulted by A-1/Girish mercilessly as she had refused to accompany them at Chikancode, as she was not feeling well. 7. The mother-in-law of the said complainant namely A-2/ Urmila expired in the course of the trial. The learned Magistrate(JMFC) after assessing the evidence led by the prosecution as well as the defence came to the conclusion that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt and proceeded to acquit the accused under Section 498-A r/w 34 I.P.C. 5 8. As per the case of the prosecution PW1/Vibha, and her husband A-1/Girish along with his mother A-2/Urmila were residing at their matrimonial house in Palolem while her sister-in-law A-3/Swarada and her husband A-4/Suraj were residing at Margao but used to visit the matrimonial house on Saturdays and Sundays, and according to the said complainant, whenever they came, they used to fight with her; and as regards the first incident of assault according to the said complainant it is accused no.4/Suraj who had called her parents, and that is how they had come to their house in the second week of July, 2002. 9. The complaint(first information), as already stated, came to be filed on 21-2-2003. Subsequently, the said complainant filed a maintenance application on 10-2-2005, and by Order dated 15-10-2007 of the learned Magistrate, the said complainant is ordered to be paid the maintenance of Rs.2,500/- per month, which I am told is being paid by A-1/Girish. Subsequently, A-1/Girish has filed a suit for divorce against the said complainant in January, 2008, and the said complainant in turn has filed a counterclaim for restitution of conjugal rights, and the said suit with the said counterclaim are pending for trial. 10. Although the complainant and A-1/Girish lived together as husband and wife in the matrimonial house for the last time on 12-11-2002, the complaint came to be filed only on 21-2-2003 6 complaining about the ill-treatment and the demand for dowry made by the said accused persons, and even if the advocate who drafted the said complaint took four days, as stated by her, in order to draft the same, there is absolutely no explanation from the complainant for the delay in filing the same either from 12-11-2002, or 16-11-2002 being the date when she visited the matrimonial house and found it closed, or from 5-12-2002 when it is stated that the complainant along with her sister has visited the accused at the residence of A-3/Swarada in Margao and the absence of any explanation for the same the delay was bound to affect the very credibility of the version given by her. 11. Reverting to the second incident of alleged assault by the complainant of 10-11-2002, the same has been dealt with by the learned trial Court in para 32 onwards. According to the complainant herself, she spent the nights of 8th and 9th November at the house of her sister-in- law, the said A-3/Swarada at Margao, and on the next day they were to go to Chickancode and on the way they were to pick up the said DW2 Shaila Rajadhayax, and accordingly the complainant first went to the matrimonial house where A-1/Girish is alleged to have assaulted her. The learned trial Court as regards this incident of 10-11-2002 of the alleged assault by A-1/Girish on the person of the complainant, has observed that the evidence on record is contrary to the said allegation. The learned Magistrate has referred to the evidence of the complainant 7 wherein she had deposed that on 10-11-2002 she was assaulted by A-1/ Girish at Palolem and A-2/ Urmila had abused her by saying “cheddi” and “randul”, and had further stated that she would not be allowed in the house until she got the dowry. The complainant was cross-examined as regards this incident and in her cross-examination the complainant had admitted that the complainant had caught hold of the collar of the shirt of A-1/Girish, when she was called to go to Chikancode, and she had caught his neck. She had further admitted that their driver and A-2/ Urmila as well as DW2/Shaila had come inside the house, and, the learned Magistrate has observed that a person who was capable of holding the neck/collar of her husband could not be vulnerable to harassment and cruelty, and that admission coupled with other evidence, particularly of DW2/Shaila created a serious doubt as regards the veracity of the allegations made by the complainant. As regards the said incident of 10-11-2002, DW2/Shaila who is a neighbour of the family at the complainant's matrimonial house and also related to them, has stated that they had all planned to go to Chikancode and had sat in the car in order to proceed to that place, and at that time the complainant was inside the house and was called by A-1/Girish by going inside the house, and as A-1/Girish did not return for quite some time, A-2/Urmila had requested the driver to go inside and see why A-1/Girish had not come and when the driver went in, he returned and informed A-2/Urmila that the complainant had caught hold of the neck of A-1/Girish. DW2/Shaila 8 had further stated that thereafter all of them had gone inside the house, in the bedroom of A-1/Girish and found that the complainant had caught hold of the neck of A-1/Girish, and that thereafter minus the complainant, they proceeded to Chikancode. DW2/Shaila had also stated that after two days of their returning from Chikancode, the father of the complainant had come on the 12th of the same month to the complainant's house and had taken her to her parental house, in her presence, and at that time the complainant had taken along with her, her gold ornaments. The learned trial Court observed, and in my view rightly, that DW2/Shaila was not at all shaken in her cross-examination, and her evidence was reliable, and, had to be considered to be so, in the light of other admissions made by the complainant in relation to the said incident of 10-11-2002 which falsifies the version of the complainant that she was assaulted on that day by A-1/Girish or abused by A-2/Urmila. 12. That incident would also throw a doubt on the first incident which is alleged to have taken place in the second week of July, 2002. Shri C. A. Ferreira, the learned Public Prosecutor submits that the complainant's version is consistent and is otherwise supported by her father PW10/Pandurang as well as PW7/Shashinakar Morajkar, and only because there were certain inconsistencies in minor details the same could not be rejected. On the other hand, Shri S. S. Kakodkar, the 9 learned Counsel appearing on behalf of the accused submits that the said incident of the second week of July, 2002, would not be complete without the version of the complainant's mother who was present and regarding whom none of the witnesses have uttered a single word. Learned Counsel submits that the mother of the complainant would not have remained quite nor any of the accused would have ventured to assault the complainant in the presence of the complainant's parents and the said friend PW7/Morajkar. Learned Counsel further submits that all the witnesses have generally referred to all the accused having brought the ornaments on that day and having kept on the table without specifying as to which of the accused had brought the same. Learned Counsel further submits that the said PW7/Shashinakar Morajkar has not even given broad details of the incident which is alleged to have taken place on the said day in the second week of July, 2002, and in my view, there is much merit in the said submissions of the learned Counsel. 13. According to the complainant, as regards the said first incident, alleged to have taken place in the said second week of July, 2002, after the articles were brought and kept on the table, A-3/Swarada abused her and assaulted her. Both the father PW10/Pandurang as well as PW7/Morajkar are totally silent on this assault. The question is whether A-3/Swarada would at all assault the complainant in the 10 presence of her own mother and that of the parents of the complainant and their family friend, and in case such an assault was there would the complainant go and spend two nights on the 8th and 9thth Nov, 2002, at the house of her said sister-in-law? PW7/Morajkar who is a friend of the complainant's father has not even given broad details of the said incident which according to him took place in July, 2002, apart from the fact that he did not even mention the date. He was not even in a position to tell the Court as to which of the accused had brought the gold ornaments and kept on the table. The learned trial Court in para 31 of the Judgment has observed that if the demand for dowry was made even prior to the marriage and had continued till the complainant left the matrimonial house on 12-11-2002, and in between the complainant was subjected to harassment and cruelty, the complainant would not have moved freely with the other accused and stay at their house at Margao without any hesitation, and the admissions in that regard of the complainant clearly suggest that the relationship between the complainant and the accused was quite normal. 14. On the very day, the complainant left the matrimonial house on 12-11-2002, with a view to attend her sister's marriage scheduled on 1-12-2002, her husband A-1/Girish filed a complaint to the Police Inspector on the same day which was produced as Exh.C-32 in which he had alleged that it is he who was suffering from mental 11 torture on account of his wife and in-laws. He had further mentioned that in case his wife commits suicide he will not be held responsible. The complainant was questioned on that aspect and she admitted that he had filed a complaint to the Police Station, prior to the complaint filed by her, and pursuant thereto she was called at the Police Station but she had no occasion to read the said complaint. She stated that she had inquired with the Police as to why she had been called to the Police Station but she was not told any reason why she was called but was only told that she was called for the purpose of inquiry. One certainly could accept that she was not told by the Police as to what was being inquired into and certainly must have been told about the complaint lodged by her husband. As regards the said complaint of A-1/Girish, the complainant stated that on 24-10-2002 when she returned along with her father from her house to the matrimonial house, A-1/Girish asked her as to why she had come late and told her that he(A-1) was going to commit suicide and further told her that A-2/Urmila, A-3/Swarada and A-4/Suraj were eating his brains and were pressuring him and therefore he told her on 25-10-2002 that he was going to commit suicide and she(PW1) told him (A-1/Girish) that all these things were happening because of her and therefore she would commit suicide instead of him. It is probably because of the said statement of the complainant that she would commit suicide that A-1/Girish had filed the said complaint to the Police on 12 12-11-2002 to keep his record straight. There was another complaint filed him on 24-11-2002. 15. The other incidents have been dealt with by learned Magistrate and rightly disbelieved. 16. Considering the nature of evidence produced by the prosecution the acquittal of the accused could not be faulted. The view arrived at by the learned Magistrate is plausible and reasonable. I find there is no merit in this appeal, and, accordingly the same is hereby dismissed. N. A. BRITTO, J. RD