-1- bpk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2106 OF 2008 Mrs. Harshita Vijay Shivdasani : Applicant v/s State of Maharashtra & others : Respondents Mr. Abad H.H. Ponda Advocate for Applicant Mr. Y.M. Nakhawa APP Advocate for respondent no.1 Ms. Edith Dey for the respondent no.2 to 6 Coram : A.S. Oka,J. Date : 16.4.2009 P.C. 1. By this application under section 482 of the Code of Criminal Procedure,1973 the applicant is praying for expunging certain remarks in paragraph four of the judgment and order dated 22nd February,2008 passed by the Additional Chief Metropolitan Magistrate. 2. The applicant is first informant. The applicant lodged FIR alleging commission of offences u/s 406, 498A read with section 34 of India Penal Code against 2nd to 6th respondents. By the judgment and order dated 22nd February, 2008, the Learned Magistrate passed an order of acquittal. -2- 3. Paragraph 4 of the said judgment and order reads as under. "I have perused the evidence of PW1. It is partly recorded. It does not disclose anything more rather than how her marriage with accused no.1 was solemnized. She did not utter anything about alleged act of harassment, cruelty which she had suffered by staying with the accused. The investigating officer did not collect independent corroboration to the said allegations by recording statements of independent witnesses. The sister of PW1 even though is cited as a witness, but she has also shown her unwillingness to come before the court for evidence. The letter dt. 29.12.2000 sent by The letter dt. 29.12.2000 sent by The letter dt. 29.12.2000 sent by the the the PW1 addressed to the APP which is tendered PW1 addressed to the APP which is tendered PW1 addressed to the APP which is tendered on on on record by the APP is itself suggesting that record by the APP is itself suggesting that record by the APP is itself suggesting that the the the letter addressed to the DCP. For taking letter addressed to the DCP. For taking letter addressed to the DCP. For taking of of of action against the accused was with action against the accused was with action against the accused was with ulterior ulterior ulterior motive and it is easy to infer by the motive and it is easy to infer by the motive and it is easy to infer by the conduct conduct conduct of PW1 that in order to bring pressure of PW1 that in order to bring pressure of PW1 that in order to bring pressure on on on the accused, she had made allegations of the accused, she had made allegations of the accused, she had made allegations of harassment harassment harassment and cruelty. and cruelty. and cruelty. Those allegations could not find justified by any evidence on record. The reluctance of the PW1 is required to be noted. Though it is one sort of disregard towards the proceedings of the Court and denial to lead evidence being the informant of the alleged offence for which the accused are tried is actionable crime but ignoring it for the purpose of this proceeding. I am hereby disposing of this proceeding for want of evidence against any of the accused. In the result I proceed to pass following order. " . The portion in bold letters is the relevant portion in respect of which a grievance has been made in this application and the prayer is for deleting the observations contained in the said portion. -3- 4. Learned counsel appearing for the applicant submitted that the inference drawn by the learned trial judge that in order to bring pressure on the accused the applicant made allegations of harassment and cruelty is based on letter allegedly written on 29.12.2000 by the applicant to the public prosecutor. He submitted that no such letter dated 29.12.2000 is on record. When learned counsel appearing for 2nd to 6th respondents pointed out that there is a typographical error in the date of the said letter mentioned in the order and the said letter is dated 29.12.2007, the learned counsel appearing for the applicant submitted that all that the said letter records is that the applicant was interested in reconciliation. On the basis of said letter, the aforesaid inference could not have been drawn. 5. Learned counsel appearing for the 2nd to 6th respondent submitted that the offer of the applicant in the said letter dated 29.12.2007 of reconciliation was not at all bonafide. She submitted that right from the year 2001 when application for anticipatory bail filed by the 2nd to 6th respondents was heard by the Sessions court, opportunities were given to the applicant for reconciliation. She invited my attention to averments made in paragraph 4 of this -4- application and submitted that the said averments support the inference drawn by learned judge. She submitted that considering the conduct of the applicant, the learned judge was justified in drawing the inference which he has drawn. 6. I have carefully considered the submissions. I have perused the record. The inference drawn by learned judge is based on the letter dated 29.12.2007 addressed by the applicant to the public prosecutor as well as the fact that the applicant did not disclose any acts of harassment or cruelty in her evidence. The learned judge also noted that though the sister of the applicant was cited as a witness, she did not depose in the court. If the evidence on record is perused, the observation made by the learned trial judge that allegations of cruelty and harassment could not be justified by any evidence on record appears to be correct and is consistent with evidence on record. the letter dated 29.12.2007 addressed by the applicant to the public prosecutor records her desire to have reconciliation with the view to save the marriage. It is stated by her in the said letter that the members of her family were desirous of reconciliation. She has stated that her sister was suffering from illness and therefore she is not in a position to come before -5- the court to adduce evidence. If the contents of the said letter are read as it is, the same explain the absence of her sister from court. The same records the desire of the applicant and her family members that she should reconcile with her husband. Whether the desire for reconciliation was bonafide or not is a different matter which will have be decided in appropriate proceedings. But what is stated in the said letter was not sufficient to record a finding that allegations of cruelty and harassment were made in order to bring pressure on the accused. Even the failure of the applicant to depose regarding harassment and the failure to procure presence of her sister to depose before court is not sufficient to record a finding that the allegations made by the applicant of harassment and cruelty were made in order to bring pressure on the accused. In the circumstances the inference which is drawn by the learned judge cannot be read as a finding recorded by the learned judge on the basis of the material and evidence on record. It is however always open to 2nd to 6th respondents to raise a contention that the allegations of cruelty and harassment were made by the applicant in order to bring pressure on the said respondents. However the said contention will have to be proved by the 2nd to 6th respondents. -6- 7. As the inference drawn by the learned judge cannot be read as a finding of the learned judge based on evidence, it is not necessary to expunge said portion. Subject to observations made above, the application is disposed of. (A.S. Oka,J.)