1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO.298 OF 1999 Sow. Mathurabai w/o Gopal Dhawale age 30 years, occup. agriculture & household, r/o Bawalgaon Udgir, Appellant/ori at present Khulgapur Latur. complainant versus 1. The State of Maharashtra, (Through P.P. High Court, Bench at Aurangabad) 2. Ambadas s/o Punda Kadam, age 53 years, occup.agril. 3. Anant Ambadas Kadam, age 23 years, occup.agril. Respondents/ Respondents No.2 and 3 r/of Resp.No.2 & 3 Khulgapur, Dist. Latur. ori.accused Nos. 1 & 2. ----------- Shri V.S.Kadam, Advocate, instructed by Shri S.D.Kaldate, Advocate for the appellant. Shri B.V.Wagh, A.P.P. for Respondent No.1. None for Respondent Nos. 2 and 3. ----------- 2 Coram : P.R.Borkar,J. Date : 07/01/2010. ORAL JUDGMENT 01. This appeal is preferred by the original complainant whose private complaint bearing R.C.C. No.356 of 1997 ended in acquittal of Respondent nos. 2 and 3-original accused on 5.12.1997. The impugned order is passed by the 4th Judicial Magistrate, First Class, Latur. 2. The complaint filed by present appellant is to the effect that on 24.5.1997 at about 11.30 p.m., Respondent Nos. 2 and 3 gave kick blow on the door of her house and entered the house. At that time, complainant and her daughter were sleeping and father of the complainant had been to agricultural land. On hearing noise, the complainant and her daughter got up and asked the accused why they entered the house. At that time, Respondent No.2 (accused No.1) told the complainant that she should give her daughter Laxmibai in marriage to his son Anant (accused No.2) and started abusing. On refusal by the complainant, accused No.1 made the complainant lie on the ground and started giving kicks and fist blows and also beat her with footwear and accused No. 2 also beat her with chappals. On hearing noise, witnesses Dnyanoba and Devidas came in the house of the complainant and even in their presence the complainant was beaten and her hair were pulled.Next day,the complainant told her father about the incident and,therefore,on 26.5.1997 3 father went to the Rural Police Station, Latur for lodging complaint, but police did not take any cognizance and on the contrary they asked him to go to the court and hence private complaint was lodged. 03. Warrant procedure was followed. Charge was framed against the accused (Respondent Nos.2 and 3) at Exhibit16 for offences punishable under Sections 452 and 323 of Indian Penal Code. The appellant examined in all three witnesses, including herself. The trial court did not believe evidence of any of the witnesses and acquitted the accused which order is challenged in this criminal appeal. 04. Heard Shri V.S.Kadam, learned Advocate holding for Shri S.D.Kaldate, learned Advocate for the appellant and Shri B.V. Wagh, learned A.P.P. for Respondent No.1. None present for Respondent Nos. 2 and 3. 05. Complainant PW-1 Mathurabai examined herself at Exhibit 13 and deposed about the story as mentioned in the complaint. PW-2 Dnyanoba who is examined on oath at Exh. 20 stated that his house is behind the house of Mathurabai and that on the day of incident, on hearing the noise he went to the house of complainant and saw that accused were beating her. Respondent No. 2 Ambadas (ori.accused No.1) was asking complainant to give her daughter in marriage to his son accused No. 2 Anant. Both the accused were beating the complainant on her head and back with chappal. Thereafter Devidas came in. 4 06. In their cross examinations, PW-1 complainant Mathurabai and PW-2 Dnyanoba admitted that proceedings under Section 107 of the Code of Criminal Procedure, are initiated against them and that the villagers including accused No.1 had also given application against them. It is also admitted by PW-2 Dnyanoba in his cross examination that in the complaint it was mentioned that the complainant had illicit relations with him. So, the trial court held that in view of enmity and in the absence of any medical evidence, testimonies of both the witnesses could not be believed. 07. So far as PW-3 Bhimrao is concerned, he is father of the complainant and he learnt about the incident on the next day from his daughter and, therefore, his evidence is hearsay. 08. Moreover, learned A.P.P. Shri Wagh submitted that happening of the incident is impossible, improbable and unnatural inasmuch as if one wants daughter of another person to be given in marriage to his son, ordinarily nobody would go to the house of other person at odd hours of 11 or 12 p.m. Secondly, generally a mediator would be sent for the purpose of settlement of marriage and a person would not visit in the manner in which accused are alleged to have visited viz. by giving kick blows on the door of the house of the complainant and abusing her. It is also to be noted that generally, proposal of marriage is made to the elderly member of the family and in this case, admittedly, PW-3 Bhimrao the father of the complainant was not in the house when the accused are 5 alleged to have visited his house. Bhimrao was in the field. It is not the say of the complainant that earlier, there was such proposal by accused and it was turned down and, therefore, accused persons were angry with the complainant and her family. 09. Considering the nature of evidence adduced and totality of the circumstances and in the absence of independent evidence, in my opinion, this is not a case wherein interference in the order of acquittal recorded by the learned Magistrate is called for. Hence, appeal is dismissed. pnd/criapl298.99 (P.R.BORKAR, J.)