Appeal by a complainant against acquittal of her husband and mother-in-law for domestic cruelty. The High Court upheld the acquittal, finding discrepancies in the complainant's evidence that destroyed its credibility and confirmed that the trial court's conclusion was not perverse.
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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MSS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO. 148 OF 1996
SOU. MUMTAZ ABDUL KARIM BEPARI )
R/o Aamai Galli, Ajara )
Dist. Kolhapur ) APPELLANT
VERSUS
1. ABDUL KARIM GUDULAL BEPARI )
R/o Kasai Lane, Sadar Bazar )
Kolhapur )
2. KHERUNBI GUDULAL BEPARI )
R/o as above. )
3. THE STATE OF MAHARASHTRA ) RESPONDENTS
Mr. P. D. Dalvi for appellant
Ms. Rashmi Gagwani h/f Ganesh Gole for R-1 & 2
Smt. V. R. Bhosale, APP
CORAM:SMT. RANJANA DESAI, J.
DATE: SEPTEMBER 18, 2007.
ORAL JUDGMENT:
. Respondents 1 and 2 are original accused 1 and 2
respectively. They were tried in the court of
Judicial Magistrate, First Class, Ajara in regular
Criminal Case No. 53 of 1992 for offences under
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Sections 498(A), 323,504,506 read with 34 of the
Indian Penal Code. By his judgment and order dated
25/8/95 the learned Magistrate acquitted the
accused. Being aggrieved by the said judgment and
order of acquittal, original complainant Mumtaz
Bepari has filed the present appeal. For the sake
of convenience I shall refer to the accused as per
their status and description in the trial court.
2. At the trial the case of the complainant was
that she was married to accused 1 about three years
back. Accused 2 is her mother-in-law. After the
marriage the accused treated her well for two to
three months and thereafter started making illegal
demands of money, scooter and T.V. The financial
condition of the complainant’s parents was not good
and, therefore, she could not fulfil the demands of
the accused. In spite of that her parents gave
Rs.8,000/- to Rs.9,000/- to the accused in the year
1991. According to her the accused assaulted her.
Thereafter the accused took her ornaments and drove
her out of the house.
3. According to her on 13/7/92 at about 12.00 to
1.00 p.m. both the accused came to her parents
house and demanded money and articles. When the
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accused came to know that their demands are not
likely to be fulfilled accused 1 slapped the
complainant and abused her. The accused told her
that she should not come to their house unless
their demands are fulfilled. The complainant,
therefore, filed private complaint against the
accused.
4. In support of her case, the complainant
examined herself on oath. The defence of the
accused was that they were falsely implicated in
the case. According to the accused the complainant
was not willing to cohabit with accused 1. They
denied that they ever ill-treated or assaulted the
complainant or made any illegal demands of money
and articles.
5. After perusing the evidence on record the
learned Magistrate came to a conclusion that the
complainant had failed to prove that the accused in
furtherance of their common intention subjected the
complainant to cruelty by assaulting her to meet
illegal demands of money and other articles. The
learned Magistrate came to a conclusion that the
complainant had failed to prove that in furtherance
of their common intention the accused insulted the
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complainant. The learned Magistrate also held that
the complainant had failed to prove that in
furtherance of their common intention the accused
gave criminal intimidation to the complainant. It
is the said judgment and order which is challenged
in this appeal.
6. I have heard at some length the learned counsel
appearing for the appellant/complainant. He
submitted that the learned Magistrate erred in
discarding the evidence of the complainant which is
is supported by the evidence of PW 2 Daud Mulla.
He submitted that the complainant’s evidence is
cogent and it inspires confidence. He submitted
that the impugned judgment and order is perverse
and, therefore, it may be set aside. He prayed
that the accused be convicted in accordance with
law.
7. I have also heard Ms. Rashmi Gagwani, learned
counsel appearing for the respondents. She
submitted that the learned Magistrate has rightly
acquitted the accused. She submitted that the
evidence of the complainant is replete with
discrepancies. The evidence of PW 2 Daud Mulla
also does not inspire confidence. It does not
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corroborate the evidence of the complainant. The
learned counsel contended that Rahim Bux in whose
presence Rs.9,000/- were allegedly given by the
father of the complainant has not been examined.
PW 2 Daud Mulla has stated that he had seen the
accused for the first time when the incident took
place. He has not been able to give the date on
which the accused allegedly demanded Rs.25,000/-
from the parents of the complainant. He is,
therefore, a got up witness. The learned counsel
further submitted that the learned Magistrate has
rightly come to a conclusion that the complainant
never resided with the accused. In fact she was
not able to state how many rooms were there in the
house of the accused. It is, therefore, clear that
a false story has been created by the complainant.
She submitted that the impugned judgment and order
is well reasoned and it does not merit any
interference from this court.
8. A careful reading of the evidence of the
complainant makes it clear that the complainant is
not telling the truth. Though in the
examination-in-chief she has stated that demand of
money was made by the accused in the
cross-examination she has stated that she has not
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disclosed the fact that the accused had demanded
Rs.25,000/-. She has further stated that since the
time of her marriage, her husband had come to Ajara
on five occasions. However, this fact is not
averred in the complaint. When she was questioned
about this she was unable to give any answer. She
has then stated that the accused assaulted her at
Ajara and asked for an amount of Rs.9,000/- in the
presence of Daud Mulla and Rahim Bux. Rahim Bux
has not been examined. PW 2 Daud Mulla has not
mentioned about this demand in his evidence at all,
therefore, this demand is not proved. She has
further stated that after her marriage till the
filing of the complaint she had been to Kolhapur on
three to four occasions. She was unable to state
how many rooms are there in the house of the
accused. The learned Magistrate has, therefore,
rightly recorded a finding that the complainant had
not gone to the house of the accused after marriage
but was staying with her parents. This is
supported by her admission that since the time of
her marriage on four to five occasions, the accused
had come to her parents house. She has further
stated that she had not disclosed the fact that the
accused assaulted her or asked for money from her
to her maternal uncles. The evidence of the
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complainant does not inspire confidence.
9. As already stated by me PW 2 Daud Mulla has not
stated anything about the demand of Rs.9,000/-
allegedly made by the accused in his presence. He
has stated that in his presence the accused were
demanding an amount of Rs.25,000/- from the parents
of the complainant. He has further stated that
when the complainant told the accused that because
of the economic condition of her parents, they
would not be able to pay the said amount, accused 1
gave a slap on her face. It is further stated that
he and other witnesses tried to intervene in the
incident. However, he is unable to give the date
and month of the incident. Surprisingly he has
stated that he had seen the accused for the first
time on the date of the incident. This statement
appears to be false because this witness admittedly
resides in the house which is adjacent to the house
of the complainant. It appears, therefore, that he
is not telling the truth. He has made an effort to
support the complainant but has miserably failed in
that.
10. In my opinion, the learned Magistrate has
rightly held that the complainant has failed to
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prove her case. The view taken by the learned
Magistrate is a reasonably possible view which
cannot be interfered with in this appeal against
acquittal. The appeal is, therefore, dismissed.
JUDGE.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO. 148 OF 1996
SOU. MUMTAZ ABDUL KARIM BEPARI .. APPELLANT
VERSUS
ABDUL KARIM GUDULAL BEPARI & ORS.. RESPONDENTS
Mr. P. D. Dalvi for appellant
Ms. Rashmi Gagwani h/f Ganesh Gole for R-1 & 2
Smt. V. R. Bhosale, APP
CORAM: SMT. RANJANA DESAI, J.
DATE: SEPTEMBER 18, 2007.
OPERATIVE PART OF THE ORDER
. For the reasons stated in the oral judgment,
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this court has dismissed the appeal.
JUDGE.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO. 148 OF 1996
DATE OF DECISION:18/9/2007
Submitted for
approval.
THE HON’BLE (SMT.) JUSTICE RANJANA DESAI:
THE HON’BLE SHRI JUSTICE :
1. Whether Reporters of Local Papers ) be allowed to see the Judgment? )
2. To be referred to the Reporters or ) not? )
3. Whether Their Lordships wish to ) see the fair copy of the Judgment? )
4. Whether this case involves a ) substantial question of law as to ) the interpretation of the )
Constitution of India, 1950 or any )
Order made thereunder? )
5. Whether it is to be circulated to )
the Civil Judges? )
6. Whether the case involves an impor- )
tant question of law and whether )
a copy of the judgment should be )
sent to Nagpur, Aurangabad and Goa )
Offices? )
3 issues framed by the court
Whether the High Court can interfere with the acquittal order of the learned Magistrate in the present appeal.
Whether the evidence of the complainant and witnesses is sufficient to sustain the conviction for cruelty under Section 498A of the Penal Code.
Whether the acquittal of the accused is a reasonably possible view and thus immune from interference.
2 provisions across 1 enactments
Mumtazb Abdul Karim Bepari
Abdul Karim Gudulal Bepari
Kherunbi Gudulal Bepari
Ranjana Desai
As recorded by the court registry
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