The High Court, Criminal Appeal Jurisdiction, dismissed an appeal against acquittal in a dowry harassment case. The bench held that the trial judge's view was a possible view on the evidence, specifically regarding injuries likely caused by rescue rather than assault.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.362 OF 1990
The State of Maharashtra
...Appellant
vs.
Mustaq Ismail Memon and ors....Respondents
Mr.Rajesh More,A.P.P. for State
None for the Respondents.
CORAM: A.S.OKA,J.
DATE : AUGUST 17, 2006.
ORAL JUDGMENT:
1. Heard learned A.P.P. for State. The Respondents-accused
were tried for offences punishable under sections 498-A, 323,
504 read with section 34 of the Indian Penal Code. By the
impugned Judgment and Order the Respondents-accused persons
have been acquitted.
2. When this Appeal from acquittal came up for final hearing
on 29th October 2004, this Court issued notice to the
complainant. In order dated 15th December 2005 the learned
Judge of this Court noted that the learned A.P.P. was not in
a position to explain as to why the order of issuing notice to
the complainant was passed on 29th October 2004. Therefore,
on the same date this court passed an order directing that the
Appeal should be placed before the learned Single Judge
(V.M.Kanade,J.) who had passed the order dated 29th October
2004. On 6th February 2006 this Appeal came up before the
Court (V.M.Kanade,J.). In the order passed on that this Court
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noted that notice was issued in order to see whether any
compensation can be paid to the original complainant. In the
said order this Court recorded the statement made by the
learned A.P.P. for State that out of five accused persons,
four accused have already expired and the fifth one is
completely bedridden as a result of paralytic stroke. A
further statement of the learned A.P.P. was recorded that the
complainant has received notice of this Court and she was not
desirous of appearing in the court. The learned A.P.P.
further stated that a statement was given by the complainant
accordingly. The said statement was taken on record and it
was directed that it was no longer necessary to hear the
complainant in the Appeal. Accordingly, the learned Judge
directed that the Appeal should be placed before the Hon’ble
Chief Justice for the purpose of assigning the same to the
appropriate court. Thereafter, the matter appeared before the
another Single Judge (Mohite,J.) and was ordered to be placed
for final hearing.
3. The case of the prosecution is that the first Respondent
is the husband of the complainant. The second Respondent is
the mother-in-law of the complainant. The third Respondent is
the sister-in-law of the complainant and the fourth and fifth
Respondents are the brothers-in-law of the complainant. The
marriage between the complainant and the first Respondent was
solemnised on 20th June 1986. The allegation is that after
two months of their marriage the Respondents asked the
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complainant to bring a sum of Rs.5,000/- and a watch from her
parents. As the said demand was not complied with, the
Respondents started beating the complainant. It is alleged
that the Respondent were not providing her food at appropriate
time. The Respondents started harassing the complainant as
she was not in a position to comply with their demands.
4. On 3rd August 1988 between the 6.00 p.m. to 12.00 in the
midnight the Respondents with their common intention of
demanding Rs.5000/- and a watch from the complainant’s parents
abused and assaulted the complainant and she was kept without
food for the whole night. Due to such treatment given by the
accused persons, the complainant jumped into the river at
Yerwada, Pune and tried to commit suicide. The prosecution
alleged that the Respondents have committed offences
punishable under sections 498-A, 323, 504 r/w section 34 of
the Indian Penal Code.
5. The prosecution examined Malika Memon, the complainant,
one Hakimbhai Taherbhai-the father of the complainant, one
Shakuntala Sitaram Dhere who is allegedly an eye witness who
saw the complainant jumping into the river, Dr.Vishnu Laxman
Ughade, a Medical Officer attached to Sasoon Hospital,Pune,
Akbar Hakimbhai Shaikh- the brother of the complainant, one
Mohammed Iqbal Ashrali and the P.S.I. Vishwanath Khandare.
The learned Judicial Magistrate (First Class), Cantonment,
Pune held that the prosecution has failed to prove the
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charges.
6. The learned A.P.P. for the Appellant has taken me through
the notes of evidence. He submitted that there is an evidence
of eye witness Shakuntala Sitaram Dhere who had seen the
complainant jumping into the river. He submitted that the
evidence of the complainant clearly shows that the she was
compelled by the Respondents to make an attempt to commit
suicide by jumping into the river. He submitted that the
evidence of the Medical Officer was consistent with the
prosecution case. He submitted that the evidence of Medical
Officer shows that there were injuries on the person of the
complainant. He submitted that the learned Magistrate has
failed to appreciate the evidence and he has gone into
probabilities. He submitted that if evidence is properly
appreciated, it is obvious that only conclusion which can be
drawn is of the guilt of the accused persons.
7. I have carefully considered the submissions. The
complainant Malika Memon has deposed that two months after the
marriage, the Respondents took her to the parents’ house and
demanded that she should bring Rs.5000/- and a watch from her
maternal home. She stated that she stayed at her parent’s
house for one year. She has made general allegations that
during her stay in the matrimonial home, the Respondents used
to beat her and they did not provide food to her. She has
stated that there was an agreement signed by her husband i.e.
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the first Respondent, her brother-in-law Ismail and a Maulana
by which the first Respondent agreed that he would not
ill-treat her. After the execution of the said agreement she
was taken to her matrimonial home. She stated that after she
came back to the matrimonial home, accused persons quarrelled
with her and they used to demand Rs.5000/- and a watch from
her parents. According to her on 3rd August 1988, the accused
persons beat her from 6.00 p.m. to 12.00 in the midnight and
thereafter, she went to bed. According to her case, next day
in the morning at 6.00 a.m. the first Respondent drove her
out of the house. Thereafter, she went to Bund Garden near
Sadal Baba Darga and tried to commit suicide by jumping into
the river. She stated that two persons rescued her from the
water and their names were Shakuntala and one Dhere and the
said persons took her to the police chowkey. She stated that
she lodged complaint at Exh.18 with the police. She stated
that she was having injuries on her head, on her stomach and
on leg. It is pertinent to note that the complainant has made
very general statements without ascribing any particular role
to any particular accused. She has not at all stated that as
a result of the assault by the accused persons she received
injuries on any particular part of her body. It appears that
the allegations made by the complainant are very vague and
devoid of any material particulars.
8. In the cross examination she stated that she was not aware
whether Khardaki river is situated at distance of one
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kilometre from her matrimonial home. She stated that she was
not aware whether the distance between Sadal Baba Darga and
the matrimonial home is about 12 kilometres. She further
admitted that in between the two places there are two rivers
and one railway crossing. In paragraph No.7 of the cross
examination the complainant stated thus :
"7.I know one Khurshid, he resides in Gopichawl Khadki.
It is true that I used to reside 7 days in my
matrimonial home and 7 days in my maternal home
because of my illicit relations with said Khurshid.
I cannot say as to why it is not mentioned in my
report Exh.18 when I was deserted the accused asked
to bring Rs.5000/- and a watch or to die."
9. P.W.No.3 Shakuntala Dhere stated that on 4th August 1988
at about 7.30 a.m. she was purchasing fish on bank of river
when she saw one girl jumping into the river. She stated that
she called her nephew and both of them took the girl out of
river. She stated that she took the girl to her house where
the police arrived. In the cross examination she stated that
the girl was floating on water. She admitted that the girl
was trying to come out of the water but she could not do so.
She stated that when the girl was taken out of water, she was
dragged out of water by catching hold of her hands. The said
witness has not deposed about the existence of any external
injuries on the person of the complainant.
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10. Dr.Vishnu Ughade, Medical Officer attached to Sasoon
Hospital stated that he examined the complainant at 1.45 p.m.
on 4th August 1988 and he noticed following injuries on the
person of the complainant:
tenderness over right elbow joint 2) tenderness over
left elbow joint 3) swelling over left knee joint
1/1/2 X 1/10 inch 4) tender over low back 5) unable
to open jaw, oscipateal headache
11. He stated that the cause of injuries was due to hard and
blunt object. In the cross examination he admitted that the
injury No.4 can be possible because of pressure of hands while
taking her out of water. He admitted that injury Nos.1 to 3
can be possible if the patient is laid down for taking out
water. Injury No.6 was also possible because of drowning. He
admitted that injuries No.1 to 3 are possible if pressure is
given on the shoulder of the person while taking him out of
water. From the said evidence it is difficult to come to the
conclusion that the prosecution has established that the
injuries were caused due to any assault on the person of the
complainant. The evidence of the Medical Practitioner shows
that the injuries are possible while dragging the complainant
from the river and while applying pressure for taking out
water out of her body.
12. The father of the complainant has been examined as
P.W.No.2. His evidence is also vague as regards demand of
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Rs.5000/- and a watch. He has deposed about execution of
agreement by the first Respondent. In the cross examination
he was confronted with the statement recorded by the police.
He stated that he cannot tell as to why it is not mentioned in
his police statement that the first informant told him about
the demand of Rs.5000/- and a wrist watch made by the first
Respondent. The evidence of P.W.No.3 Shakuntala Dhere will
not help the prosecution in establishing the case of
commission of offence punishable under section 306 of the said
Code. P.W.No.4 is the brother of the first informant. He has
deposed about the execution of the agreement at Exh.17. All
that he has stated in examination-in-chief is that after two
months from the date of marriage ill-treatment was given to
his sister and the first Respondent used to make demand. He
has vaguely stated that the demand was for some amount and a
watch. He has not deposed anything about the alleged
ill-treatment given to the first informant and therefore, his
evidence has no relevance so far as proof of commission of
offence is concerned.
13. Thus, the entire analysis of the evidence shows that the
view taken by the learned Trial Judge is a possible view which
can be reasonably taken on the basis of the evidence on
record. Even assuming that another view is possible to be
taken, it is not permissible to interfere in an Appeal against
acquittal. There is no merit in the Appeal.
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14. Hence, I pass the following order :
. Appeal is dismissed.
JUDGE
3 issues framed by the court
Whether the evidence on record constitutes a interference in an appeal against acquittal.
Whether the injury report establishes assault by the accused.
Whether allegations of dowry demand are supported by specific particulars.
1 provisions across 1 enactments
The State of Maharashtra
Mustaq Ismail Memon
A.S. Oka
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court