Dismissed

Kavita Kailas Aaher v. the State of Maharshtra and Ors.

Bombay HC23 Nov 2011APPLN/3367/2011

Case brief

AI extract

What is this about?

The High Court of Judicature at Bombay, Aurangabad Bench, dismissed a criminal application seeking leave to appeal against the acquittal of respondents in a dowry harassment case. Finding no perversity in the lower court's reasoning, the court refused leave to appeal.

What did the court decide?

Leave to file appeal against the acquittal of respondents is refused; CrPC Application dismissed.

Kavita Kailas Aaher Vs the State of Maharshtra and… — Criminal Trial and Appeal | Bombay HC (2011)

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(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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Criminal Application No. 3367 of 2011

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Kavita w/o. Kailas Aaher, Age : 25 years, Occupation : Household, R/o. Plot No.9B, Safalya Nagar, Harsul Parisar, Harsul, Aurangabad, District : Aurangabad, at present residing at Sai Dham, Ambika Nagar, Kopargaon, .. Applicant District : Ahmednagar. (Original complainant)

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versus

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The State of Maharashtra.

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Kailas s/o. Ramchandra Aaher, Age : 32 years, Occupation : Medical Practitioner.

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Ramchandra Bhagaji Aaher, Age : 66 years, Occupation : Retired.

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Sumanbai w/o. Ramchandra Aaher, Age : 58 years, Occupation : Household, R/o. Plot No. 9B, Safalya Nagar, Harsul Parisar, Harsul, Aurangabad

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Mr. M.P. Gude, Advocate, for the applicant.

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Mr. S.N. Kendre, Additional Public Prosecutor, for respondent no.1.

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Mr. S.D. Ghayal, Advocate, for respondent nos. 2 to 4.

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CORAM : SHRIHARI P. DAVARE, J.

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DATE : 23RD NOVEMBER 2011

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COURT'S ORDER :

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Heard learned respective Counsel for the parties.

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This is an application preferred by the applicant i.e. original complainant (first informant) under amended proviso of Section 372 of the Code of Criminal Procedure, 1973, seeking leave to file appeal challenging the judgment and order dated 16-6-2011, rendered by learned Judicial Magistrate (First Class), 7th Court, Aurangabad, in Regular Criminal Case No. 251/2010, thereby acquitting respondent nos.2 to 4 i.e. original accused for the offences punishable under Sections 498A, 323, 504, read with Section 34 of Indian Penal Code.

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(3)

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I have perused the impugned judgment dated 16-6-2011, as well as, record and proceedings, with the assistance of the learned Counsel for the parties.

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Parties hereinafter are referred to as per their original status i.e. complainant and accused.

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At the outset, the complainant Kavita was married with respondent no.2 Kailas about 7 years back, and one son, namely, Aditya, aged about 4 years, was born out of the said wedlock and respondent nos.3 and 4 are the parents-in-law of complainant Kavita. The allegations against the respondents are that the respondent no.2 Kailas used to consume liquor and used to assault and abuse the complainant, and also used to show blue films to her, as well as, used to suspect her fidelity and used to make allegations against her, that she was mentally retired. It is also alleged that unlawful demand of Rs. 2,50,000/- was made by the respondent nos.2 to 4 to the complainant and she was kept hungry and she was mentally and physically tortured due to nonfulfillment of unlawful demand. It is further alleged that the respondents / original accused assaulted the complainant and she was driven out of her matrimonial home.

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To substantiate the said charges, the prosecution has

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(4)

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examined as many as four witnesses, namely :-

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(1) PW 1, Kavita w/o. Kailas Aher - Complainant herself

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(2) PW 2, Haribhau s/o. Shankar Bandoge - Complainant's father.

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(3) PW 3, Suresh s/o. Dhondiram Chavan - Friend of complainant's father and foster maternal uncle.

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(4) PW 4, Afsarkha Pathan, ASI - Investigating Officer.

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However, on perusal of the oral evidence adduced by the prosecution, it appears that the testimonies of the prosecution witnesses are not in consonance with the Police statements and there are vital variances. Moreover, the complainant could not furnish the details in respect of the allegations made against her as regards alleged unlawful demand of money, as well as, allegations against her in respect of suspicion of her character. Moreover, the complainant has also admitted in her deposition, that the respondent no.2 was doing well in his dispensary, and therefore, suspicion is created in respect of unlawful demand of money from the complainant, as observed by the learned trial court in the impugned judgment. Moreover, it is also pertinent to

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(5)

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note that when the complainant was confronted with the chit written by her, she denied the handwriting thereon of herself, whereas she admitted in the Family Court, that the said chit was written by her, wherein she had written that she left her matrimonial home on her own accord. Moreover, it is also apparent that the testimony of the complainant does not substantiate the allegations made by her in respect of the assault, convincingly, and no specific abuses, hurled towards her, have been disclosed by her in her deposition. Moreover, learned trial court has observed that the prosecution has not examined the neighbours of the matrimonial home of the complainant to substantiate the charges levelled against the respondents / original accused, and hence, apparently, there is no substance in the case of the complainant.

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Having comprehensive view of the matter, the view adopted by the learned trial court, while acquitting the respondent nos.2 to 4 i.e. original accused, after scrutinizing and analysing the evidence on record, is a possible view to be adopted and the said view does not appear to be perverse. Moreover, reasoning given by the learned trial court, while acquitting the accused i.e. respondent nos.2 to 4 herein, also cannot be faulted with, and hence, no interference is warranted in the said finding in appellate jurisdiction, and therefore, present

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(6)

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Criminal Application deserves to be dismissed.

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In the result, present Criminal Application, which is sans merits, stands dismissed. Leave to file appeal is refused.

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Record and proceedings be sent back to the concerned court.

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( SHRIHARI P. DAVARE )

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JUDGE

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bgp/ka3367

Kavita Kailas Aaher v. the State of Maharshtra and Ors.

Case brief

What is this about?

What did the court decide?

Kavita Kailas Aaher v. the State of Maharshtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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