1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.289 OF 2002 The State of Maharashtra .Appellant -versus Shri Ayub Abdul Rahiman Zari Age: 45 years, Occn.Nil residing at: Nevre, District:Ratnagiri .. Respondents Shri Y. M. Nakhwa,for the state. Shri M.N.Gawankar for the respondent. CORAM: R. V. MORE, J DATED: 6th March,2009 Oral Judgment. 1. The state has preferred this appeal challenging the order dated 3lst October,2001, passed by the 2nd Judicial Magistrate First Class, Ratnagiri recording respondent's acquittal, for the offence punishable under section 498(a) of the Indian Penal Code. 2. The prosecution case in short is as under:- The marriage of the complainant with the respondent was solemnized on 29th March,l984 as per Muslim rites and customs. The complainant started cohabitation with respondent. Thereafter for two months, respondent treated the complainant well. However, thereafter he started 2 abusing the complainant. Even then the complainant continued cohabitation with the respondent. During his wedlock the complainant gave birth to a son and daughter in the year l986 and l987 respectively. Thereafter the respondent started treating complainant with cruelty. The complainant did not complain anything as she wanted to live with the respondent. The prosecution case further proceeds that prior to 2 and half years of filing FIR, respondent started abusing and beating the complainant on the ground of money. Respondent was demanding money from the complainant, as his grievance was, “nothing was given to him in the marriage.” Even the respondent tried to kill the complainant by setting her on fire on or about 20.6.l997 and thereafter the complainant came to her matrimonial house on l4.9.1999. The dispute between the respondent and complainant could not be settled, therefore FIR came to be filed on 11.10.1999. 3. The learned Judicial Magistrate First Class, framed the charge against respondent under section 498(a) of the Indian Penal Code. The contents of the charge were read over and explained to him in vernacular to which he pleaded not guilty. His defence was of total denial. 4. The Prosecution in order to prove the guilty of the respondent examined six witnesses viz i) the complainant Sou.Sahajadi Ayub Zari, ii) Gurunath Patkar, neighbourer of the 3 complainant, iii) Shri Ayub Shaikh, distant relative of the complainant, iv) Shri.Sayyad Saraj Kasam, matrimonial uncle of the complainant, v)Sou.Vandana Rane,neighbourer of the complainant, vi) IO, Shri.Dhoke. The prosecution also relied upon a letter dated 22th July, l992 at exh U.l4, allegedly written by the complainant to her maternal uncle. 5. The learned Magistrate after perusing the evidence led by the prosecution came to the conclusion that the prosecution failed to prove charge levelled against the respondent beyond any reasonable doubt and accordingly respondent was acquitted. As stated above this order is impugned in the present appeal. 6. Having gone through the evidence led by the prosecution and letter at exhibit l4 and having heard learned counsel for the respective parties, I find no merit in the appeal for the reasons stated hereinafter:- 7. It is specific case of prosecution that the grievance of the respondent against the complainant was that he was not given anything in the marriage. Thus, the prosecution case falls under the provisions of clause (b) of explanation of section 498(a). The prosecution, as stated above, in order establish their case, examined six witnesses. 8. The evidence of PW Nos 2, 3 and 5 is not helpful to the prosecution. P.W 2 is a neighbour 4 of the complainant and he has merely deposed that matrimonial life of the respondent and complainant was good for five to six years and thereafter quarrel started between them. PW-3 is the distant relative of the complainant. He has deposed that on l6th September, l999, respondent came at Savarde village. He was in angry mood. He was having some bond paper in his hand and was asking the complainant to sign on it as he wanted to give Talak to her. In my view this deposition, does not take the prosecution case anywhere. PW-5 is again neighbour of the complainant. She merely deposed that she heard noise of quarrel between the respondent and the complainant. 9. Now let us consider the evidence of PW-1- the complainant herself and PW-4, maternal uncle of the complainant. Evidence of PW-1, shows that her marriage with the respondent was solemnized on 29th March, l984 and the respondent was treating her well initially for a period of two months and thereafter started illtreatment. She further deposed that she gave birth to two children in l986 and l987, respectively. She tolerated the illtreatment for the sake of children. She testified that on 20th June, 1997, respondent compelled her to consume poison and also tried to set her on fire. She also stated that the respondent was illtreating her on the demand of money. In cross examination she has specifically admitted that there was no dispute on the ground of “Hunda”(dowry) at the time of marriage. 5 10. The evidence of PW-1 does not inspire any confidence. She states that though illtreatment started immediately after two months after solemnization of the marriage, however, till 11th October, 1999 she did not file any complaint. She also did not file any FIR though it is her contention that the respondent compelled her to consume poison and set her on file on 20th June, l997. Even after 20th June, 1997, she cohabited with the respondent till 14.9.1999. It is very difficult to digest that the complainant will continue cohabitation with the respondent even after incidence dated 20th June, l997. One more circumstance the benefit of which deserve to be given to the respondent is that the complainant PW-1 admitted in her evidence that the pass book of recurring account was given by the respondent to her. This gesture of the respondent makes prosecution story doubtful. If respondent was interested in demanding money from the complainant then he would not have returned the pass book of recurring account to the complainant. In letter at exhibit l4, the complainant has mentioned that the respondent is Revenue Officer, and there is no dearth of money from him. If the deposition of the complainant PW-1 is perused, then in my view the prosecution story becomes doubtful. 11. The evidence PW-4, maternal uncle of PW- 1, complainant is full of omission. He admitted that he never made complaint against behaviour of the respondent prior to recording his statement by police in the present case. He further 6 admitted that on 22th September, l999 he or PW-1 did not make any complaint against conduct of the respondent to police. He deposed that he could not assign any reason as to why the fact that the respondent was insisting money from the complainant does not find place in his statement before the police. He further deposed that he has stated to the police that the respondent was asking the complainant to bring dowry otherwise he would give Talak to her, however, the same does not find place in his statement before the police. The evidence of P.W- 4, in view of above admission and omission does not inspire any confidence. 12. I do not find any error in the approach adopted by the learned Magistrate in appreciating the evidence of prosecution witnesses. The learned Magistrate rightly gave benefit of doubt to the respondent. The view taken by the learned Magistrate is possible view and High Court is not expected to substitute the same in an appeal against acquittal. I donot find any merit in the appeal. The appeal is dismissed. (R.V.MORE, J)