Anil vs State of Maharashtra

A.R. Joshi, J.

Heard the learned Counsel for the applicant and the learned Additional Public Prosecutor for the State.

In this Criminal Revision Petition preferred by the original accused challenging the judgment and order of the trial Court dated 22-03-2007 and challenging the subsequent order of the appellate Court dated 09-11-2010 partly allowing the appeal.

The case of the prosecution in nutshell is that (PW-1) the wife of the present applicant/accused got married with him sometime in the year 1993 and for about 12 years she had very happy married life and two children were born out of the wedlock; one boy and one girl, aged about 7 years and 11 years. Thereafter, sometime in the year 2004 dispute arose and the present applicant/husband started demanding money from her for purchase of motorcycle. When the money was not given the applicant obtained a loan from one of the relatives of his wife. Said loan was for Rs. 3,500/-. When the repayment of the loan was asked by the said relative of the wife, the applicant/accused again ill-treated his wife and ultimately drove her out of the house on or about 12-06-2004. Since then (PW-1) wife started residing with her parents.

After the wife of the present applicant started residing with her parents, she went to the Sewagram Police Station and lodged a report on or about 05-02-2005 alleging ill-treatment and mentioning that applicant had performed second marriage and residing with his second wife. The matter was taken to the woman Sub-Inspector attached to the Police Station as she was the member of some Committee organized at the Police Station level to amicably settle the dispute between the married couples. Said lady Police Officer was examined before the trial Court at (PW-7). For about 2 months there were meetings and talks of settlement but nothing could be materialized and as such on or about 05-04-2005 the complainant (PW-1), the wife of the present applicant lodged a complaint with the police. Cognizance of this second complaint was taken and the First Information Report was lodged and the offence was registered against the present applicant under Section 498-A of the Indian Penal Code. It is admitted position that no offence of bigamy punishable under Section 494 of the Indian Penal Code was registered against the present applicant. It is curious to know that a peculiar charge was framed against the applicant inasmuch it was alleged that since 05-04-2005 being a husband of the complainant he subjected her to cruelty by way of insisting upon her to bring Rs. 15,000/- from her parents and thereby committed an offence under Section 498-A of the Indian Penal Code. This was the charge framed by the Judicial Magistrate First Class, Court No. 1, Wardha on 27-09-2002 and the case was proceeded on this charge and the evidence of seven prosecution witnesses was recorded. (PW-1) is the complainant/first informant/wife of the applicant. She has stated that for about 12 years she had very happy married life and specifically she had answered in her examination-in-chief to the following effect:-

"On 11/5/83 my marriage with accused was performed at village Surgaon Rehaki. It was performed according to our custom. I went to live with the accused at Selu kate. I am having one son and one daughter from the marriage with accused. Son is aged about 12 years and daughter is aged about 8 years. I lived with accused for 12 years. During this period he gave proper good treatment. However, thereafter accused gave ill-treatment to me. Accused was demanding money to purchase bike from my parents."

According to the complainant wife after 12 years of the happy married life the dispute between them started and the present applicant/accused started demanding money for purchase of motorcycle and on that count he was very often beating and ill-treating her. According to her substantive evidence the present applicant had taken a hand loan from her maternal brother, one Kishore. Said kishore is examined as (PW-3). According to her the applicant was beating her as she could not bring money from her parents and also the accused was asking for money for purchase of more agricultural land. Other prosecution witnesses were examined; those are (PW 2), (PW-3), (PW-5) and (PW-6) and also (PW-4) father of (PW-1). So far as the substantive evidence of (PW 2), (PW-3), (PW-5) and (PW-6) is concerned, the attention of this Court is drawn towards their substantive evidence in examination-in-chief and cross and it is submitted by the learned Counsel on behalf of the applicant that in fact a different story has been put forth before the Court as to demand of Rs. 15,000/- and Rs. 10,000/-, without giving any specific date or instance for such demand. It has also come to the notice of this Court that the entire substantive evidence in examination-in-chief of these witnesses regarding ill-treatment and harassment of the complainant (PW-1) at the hands of the present applicant is an omission. This fact is ascertained by this Court by going through the notes of evidence produced in the present matter and also perused from the record and proceedings. Definitely, it is a factual position that such evidence of this prosecution witnesses is entirely an omission and strangely enough this fact has been overlooked by the appellate Court while dealing with the prosecution evidence and definitely the First Appellate Court so also the trial Court had committed an error in appreciating the substantive evidence of these witnesses. Apart from this a different story is also placed before the Court by (PW-4) father of (PW-1). It is regarding amount of Rs. 15,000/- and Rs. 10,000/- allegedly demanded by the present applicant from his wife. There is no whisper of this allegations in the substantive evidence of (PW-1) who had lodged the complaint. Moreover, it is seen that much reliance is placed on the substantive evidence of these prosecution witnesses i.e. (PW 2), (PW-3), (PW-5) and (PW-6) and mainly on the prosecution witness of (PW-3) Kishore. The relation of this witness as maternal brother of the first informant is an admitted position. Though, it was not the case of (PW-1) complainant that she was treated with cruelty and was assaulted at times during the first 12 years of the married life, such type of evidence is given before the Court by these witnesses i.e. (PW 2), (PW-3), (PW-5) and (PW-6) and as such it is very much erroneous on the part of both the earlier Courts to place reliance on the testimony of these witnesses. This is more so when the specific charge which is explained at the beginning of this judgment, is to the effect that the present applicant had demanded amount of Rs. 15,000/- since 05-04-2005 from the complainant and subjected her to cruelty. The admitted position that from 12-06-2004 the complainant (PW-1) was residing with her parents has been overlooked by both the earlier Courts and as such definitely there was no proper appreciation of evidence by both these Courts.

Apart from the above another factual circumstance is overlooked by the trial Court and also by the First Appellate Court inasmuch as in the year 2005 admittedly there was a notice sent by the present applicant to the wife for Restitution of Conjugal Rights and in fact such proceedings were filed and as such apparently counter to such proceedings complainant (PW-1) came with a plea that she was thrown out of the house since June 2004 and lodged two reports to the police only on 05-02-2005 and 05-04-2005. Definitely this delay for lodging the complaint and under the circumstances of pendency of the petition of Restitution of Conjugal Rights, would have been considered by the trial Court and also by the First Appellate Court in proper perspective but that has not been done and as such it must be said that there is a need to interfere with the impugned judgment and order passed by the trial Court and also confirmed by the First Appellate Court. Considering the overall effect of the evidence led before the trial Court definitely this is a case in which it must be said that both the earlier Courts have not appreciated the said evidence in proper manner and as such fallen in an error in holding that the prosecution has proved the charge punishable under Section 498-A of the Indian Penal Code. In the result, the present Revision Petition succeeds and the same is disposed of with the following order:-

i] The impugned judgment and order dated 22-03-2007 of the Judicial Magistrate First Class, Wardha and the judgment and order of the First Appellate Court dated 09-11-2010 are quashed and set aside. The applicant is acquitted of the offence punishable under Section 498-A of the Indian Penal Code.

ii] The fine amount of Rs. 1000/- if already paid shall be refunded back to the applicant.

iii] His bail bonds shall stand cancelled.

The present Revision Petition is accordingly allowed and disposed of.