Dismissed

State v. Mohan Bapusaheb Malgaonkar and Anr. v Mohan Bapusaheb Malgaonkar and Anr.

Bombay HC8 Dec 2004APEAL/580/1995

Case brief

AI extract

What is this about?

In an appeal under Section 372 CrPC, the High Court of Bombay Criminal Bench rejected the State's challenge to an acquittal. The court distinguished the prosecution case from the accused's defense, held that the evidence was unreliable, and consequently dismissed the appeal, upholding the lower court's dismissal of charges.

What did the court decide?

The appeal was dismissed.

State vs. Mohan Bapusaheb Malgaonkar and Anr. Vs Mohan… — Domestic Violence | Bombay HC (2004)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO.580 OF 1995

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 The State of Maharashtra ]..Appellant
 (Ori.Complainant)

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 Versus

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 1. Mohan Bapusaheb ]
 Malgaonkar ]
 Age 52 yrs. Occ: Medical ]
 Practitioner, r/o Pen ]
 Dist. Raigad ]
 ]
 2. Manoj Ramdas Sawant, ]
 Age 28 yrs. r/o Kalgut, ]
 Tal.Nagdesh Mhapsa, Goa ]..Respondent
 (Ori.Accused)

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 ...
 Mr.A.S.Shitole, A.P.P. for State
 Ms.Manisha Patil i/b Mr.A.P.Mundergi Advocate for
 Respondents

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 CORAM: SMT.V.K.TAHILRAMANI,J.

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 DATE : DECEMBER 8,2004

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ORAL JUDGMENT:

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 1. Through this appeal, the appellant has
 challenged the judgment and order dated 24th July,
 1995 passed by the learned Judicial Magistrate F.C.
 Pen in R.C.C.No. 49 of 1989. By the said judgment
 and order, the learned Magistrate acquitted the
 respondents i.e. original accused nos.1 and 2 of
 the offence under Sections 498-A, 323 and 506(II) of

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 IPC.

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 2. Briefly stated the prosecution case is as under:

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 . That the complainant P.W.1 Dr.Usha Malgaonkar was
 married to respondent no.1 Dr.Mohan Malgaonkar on
 31st January, 1973. According to the complainant,
 though her husband was a doctor, he did not work and
 he used to demand money from her, and if the money
 was not given to her husband, her husband used to
 illtreat and beat her. That prior to her marriage
 her husband was married to one another lady and this
 fact was suppressed by her husband and thereby
 complainant was deceived. She came to know about
 this fact after 45 days of her marriage. According
 to the complainant, her husband had various affairs
 with his colleagues, nurses and other ladies. It is
 further the case of the complainant that on 31st
 March, 1989 at about 3-00 to 4-00 a.m. her husband
 woke her up and told her not to take loan from the
 bank. The said loan was being taken by the
 complainant for the purpose of purchasing
 professional equipments for the hospital. She tried
 to convince her husband but he got annoyed and told
 her that if she wanted to take loan, she must
 transfer all the property i.e. hospital building
 etc. in his name. Her husband also produced some

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 papers and asked her to sign them. However, she

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 refused to sign the same. Whereupon, her husband
 got annoyed and made attempt to strangulate her neck
 with both his hands. The accused then caught her
 head and hit the same against the cot. Due to this,
 her nose and mouth started bleeding. The
 complainant informed this fact to her brother P.W.2
 Mukund Bakare. Her brother came from Poona and
 thereafter, she lodged complaint against her husband
 and accused no.2 who is the son of the sister of her
 husband. Thereafter investigation commenced. After
 completion of investigation, the charge-sheet came
 to be filed.

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 3. During the course of trial, charge under
 Sections 498-A, 323 and 506(II) read with Section 34
 of IPC came to be framed against both the accused.
 Both of them pleaded not guilty to the said charge
 and claimed to be tried. The defence of the accused
 no.1 is that he and the complainant had jointly
 purchased property for which he filed suit in the
 Court of Alibag and therefore, he is falsely
 involved in this case. The defence of accused no.2
 is that he being the relative of accused no.1, he is
 falsely involved in this case.

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 4. After going through the evidence adduced by the

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 prosecution, the learned Magistrate acquitted the
 respondents as stated in para 1 above. Hence, this
 appeal.

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 5. I have heard Shri.A.S.Shitole, the learned
 A.P.P. for the State and Ms. Manisha Patil, the
 learned advocate for the respondents. I have also
 perused the record pertaining to the present case.
 After carefully considering the matter, I am of the
 opinion that this appeal deserves to be dismissed.

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 6. The star witness in the present case is the
 complainant P.W.1 Dr.Usha Malgaonkar. In her
 examination in chief, Dr.Usha Malgaonkar has stated
 that though her husband was a Doctor, he was
 unemployed and he was dependent on her. complainant
 P.W.1 Usha has further stated that if the money was
 not given to her husband, her husband used to
 illtreat and beat her. That prior to her marriage
 her husband was married to one another lady and this
 fact was suppressed by her husband and thereby
 complainant was deceived. She came to know about
 this fact only 45 days after her marriage.
 According to the complainant, her husband had
 various affairs with his colleagues, nurses and
 other ladies. It is further the case of the
 complainant that on 31st March, 1989 at about 3-00

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 to 4-00 a.m. her husband woke her up and told her

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 that not to take loan from the bank. The said loan
 was being taken by the complainant for the purpose
 of purchasing professional equipments for the
 hospital. She tried to convince her husband but he
 got annoyed and told her that if she wanted to take
 loan, she must transfer all the property i.e.
 hospital building etc. in his name. Her husband
 also produced some papers and asked her to sign
 them. However, she refused to sign. Whereupon, her
 husband got annoyed and made attempt to strangulate
 her neck with both his hands. The accused then
 caught her head and hit the same against the cot.
 Due to this, her nose and mouth started bleeding.

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 . Thus, according to the complainant P.W.1 Dr.Usha,
 the allegations against her husband are that (1)
 prior to her marriage with accused no.1, accused
 no.1 was married to some other lady and that he did
 not inform this fact to her and thus, he had
 deceived her, (2) though her husband was a Doctor,
 he was not employed anywhere and he did not do any
 work and thus he was dependent on her for money and
 if she did not give money, he used to threaten and
 beat her, (3) her husband had illicit relations with
 other ladies, (4) on 31st March, 1989 her husband
 woke her from sleep and asked her not to take loan

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 from the Bank and he told her that if she wanted to

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 take loan, she should transfer all the property i.e.
 hospital etc. in his name. On her refusing to do
 so, he pressed her neck and banged her head against
 the bed and (5) that the accused nos.1 and 2 had
 written certain letters Exhibits-49 to 53 from which
 the fact relating to illicit relations of her
 husband and other facts have been admitted by
 accused no.1. It is pertinent to note that in her
 evidence before the Court, Complainant P.W.1 Dr.Usha
 has not made any single allegation against accused
 no.2. All the allegations are against her husband
 i.e. accused no.1.

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 7. The first allegation made by the complainant is
 that her husband was married prior to her marriage
 with him and this fact was not disclosed to her and
 thus she was deceived by accused no.1. From her
 examination in chief it appears that she did not
 know her husband prior to her marriage. However,
 from the cross examination of the complainant P.W.1
 Dr.Usha, it is clear that in the year 1970-71 i.e.
 almost two years before her marriage, she was
 acquainted with the accused no.1. After completion
 of her M.D. in Gynaecology at Bombay, she came to
 Cama Hospital for housemanship. Accused no.1 was
 Registrar at Cama Hospital at Bombay at that time.

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 She came in contact with accused no.1 and ultimately
 fell in love with him. She had spent 15 months in
 the company of accused no.1. It is further
 pertinent to note that she had gone to Goa with
 accused no.1 in connection with proceedings relating
 to conjugal rights between accused no.1 and his
 wife. There was divorce between accused no.1 and
 his wife in the year 1980. Thus, the marriage of
 the complainant with accused no.1 in 1973 was an
 illegal marriage. Despite the complainant knowing
 that her marriage was illegal marriage, she
 continued to reside with accused no.1 and
 thereafter, a daughter was born to her out of the
 wedlock with accused no.1. It is clear that
 complainant was closely associated with accused no.1
 for 15 months prior to her marriage. She knew the
 accused no.1 since 1970-71 from the time of her
 housemanship at Cama Hospital where the accused no.1
 was Registrar in the said hospital. After her
 marriage in 1973, if the complainant came to know
 that accused no.1 was already married she did not
 react to this fact and admittedly she has helped the
 accused no.1 in getting divorce from his wife in
 1980 at Goa. From the evidence on record, it
 appears that she had knowledge about the first
 marriage of accused no.1 prior to her marriage. In
 such case, there would be no question of the

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 complainant being deceived by the accused no.1.
 Thus, there is no force in the first allegation.

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 8. The next allegation against the accused no.1 is
 that he was unemployed and that she maintained him.
 As he was unemployed, he used to demand money from
 her and on her refusal, he used to threaten and beat
 her. However, in the cross examination, it has come
 on record that prior to her marriage, accused no.1
 was working as Registrar in Cama Hospital. It has
 also come on record that after the marriage, accused
 no.1 was serving as Medical Officer in the hospital
 at I.I.T. Powai at Bombay in 1973-74. Her evidence
 clearly shows that after the marriage, accused no.1
 was in service as Medical Officer at different
 places at different Government Hospitals. In 1978,
 the complainant and accused no.1 came to Pen and
 started private practice. Thus, this means that he
 was earning both before and after the marriage with
 the complainant. These admissions of the
 complainant go to show that he was not in need of
 any finance from the complainant for any purpose
 whatsoever.

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 9. The third allegation against the accused no.1 is
 that he demanded the hospital building at Pen to be
 transferred in his name by the complainant. On her

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 refusing to do so, he beat her. In respect of
 hospital property, it is admitted by the complainant
 that accused no.1 had himself started hospital at
 Pen on 5th February, 1978 and at that time, the
 complainant was serving in B.A.R.C. hospital. The
 hospital has been named as Sitamai Hospital in the
 name of her mother in law i.e. mother of accused
 no.1. The complainant has further admitted that it
 was accused no.1 who had obtained loan from State
 Bank of India for Sitamai Hospital. This evidence
 and other evidence on record clearly show that
 complainant was not concerned with Sitamai hospital
 property at the beginning when it was started by
 accused no.1 with a loan from State Bank of India.
 In such case, there is no question of accused no.1
 illegally demanding his property. Accused no.1 was
 bonafide claimant of this property and even if he
 demanded the same, it is not an illegal demand.
 Thus, complainant has not established that there was
 any illegal demand of the property by her husband.

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 10. Looking to the evidence on record, her
 statement that her husband demanded hospital
 property does not appear to be reliable. The
 complainant has further stated that on 31st March,
 1989 her husband had brought some papers and asked
 her to sign them. She refused to sign the papers,

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 hence, the accused pressed her neck and then hit her
 head against the bed. It is pertinent to note that
 this aspect about her husband getting some papers
 and asking her to sign them has not been stated by
 the complainant in her earlier statement. Thus, the
 said statement is clearly an improvement and as
 such, no reliance can be placed on the same.

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 11. As far as injuries are concerned, it is the
 specific case of the complainant that after she was
 injured, she went to the hospital for treatment.
 She has not produced the medical certificate. So
 also the Doctor who had examined her or treated her,
 has not been examined by the prosecution. No injury
 certificate has been brought on record by the
 prosecution. Moreover, it is the case of the
 complainant that she was sleeping on the bed with
 her husband and when she refused to sign the papers
 brought by the accused no.1, accused no.1 sat on her
 chest and pressed her neck by his hands and hit her
 head against the bed. It is her case that she
 received injuries on her nose and head. If one
 looks at the version of the complainant as to how
 she received injuries, they are not consistent with
 the injuries to the complainant. There are no
 injuries on her neck and the only injuries according
 to complainant, are on her nose and on side of her

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 head. These injuries are not consistent with the
 manner of assault by accused no.1 as deposed by the
 complainant. The complainant has admitted that one
 maid servant remained in the premises all 24 hours
 and it is further admitted that at the time of
 incident, the said maid servant was present.
 However, maid servant was not examined to
 corroborate the story of complainant that she
 received injuries due to assault by accused no.1.
 Thus, it is seen that there is no material to
 support the claim of the complainant that she was
 assaulted by accused no.1 and she received injuries.
 As stated by me earlier, the genesis of the incident
 of assault, does not appear to be probable and thus,
 this raises doubt in the mind regarding assault on
 the complainant by accused no.1.

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 12. It is further the case of the complainant that
 there were illicit relations between her husband and
 some other ladies. She has relied upon Exhibits 49
 to 51 supposedly written by the accused no.1 to her
 and her brother in which he has admitted the illicit
 relationship with other ladies. The complainant has
 also relied upon the letters Exhibits-49 to 53 to
 support her case that accused nos.1 and 2 used to
 threaten and harass her. The letters at Exhibits 52
 and 53 are according to the complainant, written by

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 the accused no.1. Many of these letters, have not
 been signed. It is pertinent to note that all these
 letters were sent to Handwriting Expert. However,
 Handwriting Expert could not get any definite
 opinion that letters were written by accused no.1 or
 by accused no.2. Moreover, the evidence of panch
 witness in whose presence, the letters were seized
 or in whose presence the specimen handwritings were
 taken, is not reliable. His evidence is of full
 contradictions and it raises doubt in the mind and
 makes it unsafe to rely on his evidence.

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 13. The evidence of P.W.2 Mukund Bakare the brother
 of complainant and the evidence of P.W.3 Trupta is
 on the same lines as that of the complainant. I
 have already observed that evidence of the
 complainant is not found to be reliable. As far as
 evidence of P.W.2 Mukund and P.W.3 Trupta are
 concerned, both of them are interested witnesses.
 P.W.3 Trupta was staying for most of the time with
 P.W.2 Mukund. Trupta is the daughter of the
 complainant. In such case, when the evidence of
 complainant is found to be unreliable, in my
 opinion, it would not be safe to rely on the
 evidence of these two witnesses.

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 14. As far as accused no.2 is concerned, there is

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 no allegation made by the complainant against him in

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 her evidence. However, P.W.2 Mukund and P.W.3
 Trupta made some allegations against him. However,
 looking to the fact that complainant herself has not
 made any allegations against accused no.2 in her
 evidence, one finds it unsafe to rely on the
 evidence of her relatives who state about the
 harassment and illtreatment by accused no.2 to the
 complainant when the complainant herself does not
 state so.

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 15. Looking to the evidence on record, the view of
 the learned Magistrate while acquitting the
 respondents is a possible and reasonable view. It
 is well settled that if the view of acquittal could
 have been arrived that the mere circumstance that
 the appellate Court would have taken different view,
 would be no ground to interfere.

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 16. In the circumstances, I find no merit in this
 appeal and the same is dismissed.

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 [V.K.TAHILRAMANI.J]

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 FARAD CONTINUATION SHEET
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELLATE SIDE
CRIMINAL APPEAL NO.580 OF 1995
 (The State of Maharashtra Vs. Mohan Bapusaheb Malgaonkar &
 Ors.)
 -----------------------------------------------------------------
 Office Notes, office Court’s or Judge’s orders
 Memoranda of Coram,
 appearances, Court’s
 orders or directions
 and Registrar’s orders
 -----------------------------------------------------------------
 Mr.A.S.Shitole, A.P.P. for State
 Ms.Manisha Patil, Advocate for
 Respondents.
 CORAM: SMT.V.K.TAHILRAMANI,J.
 DATE : DECEMBER 8, 2004
 . For the reasons mentioned
 separately in the judgment, the
 following order is passed:
 . There is no substance in this
 appeal and the same is dismissed.
 (V.K.TAHILRAMANI,J.)

State v. Mohan Bapusaheb Malgaonkar and Anr. v Mohan Bapusaheb Malgaonkar and Anr.

Case brief

What is this about?

What did the court decide?

State v. Mohan Bapusaheb Malgaonkar and Anr. v Mohan Bapusaheb Malgaonkar and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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