Allowed

The State of Maharashtra v. Sanjay Rajaram Kusalkar and Ors.

Bombay HC6 Dec 2016APEAL/945/2012

Case brief

AI extract

What is this about?

The High Court, while hearing appeals against conviction and acquittal in a matrimonial dispute, set aside the trial court's order acquitting all accused and dismissed the appeal for enhancement of sentence due to a valid compromise settled between the parties, including payment of compensation.

What did the court decide?

Judgment and order of acquittal dated 29.8.2011 set aside; appeals and application disposed of based on compromise; compensation of Rs. 4,00,000/- accepted.

The State of Maharashtra Vs Sanjay Rajaram Kusalkar… — Matrimonial and Divorce | Bombay HC (2016)

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1. cri apeals 1156-11 538-12 945-12.doc

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO. 1503 OF 2016 IN CRIMINAL APPEAL NO. 1156 OF 2011

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Sanjay Rajaram Kusalkar .. Applicant Vs The State of Maharashtra & Anr. .. Respondents

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WITH CRIMINAL APPEAL NO. 1156 OF 2011

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Sanjay Rajaram Kusalkar .. Appellant (Org. Accused No. 1) Vs The State of Maharashtra .. Respondent

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WITH CRIMINAL APPEAL NO. 538 OF 2012

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The State of Maharashtra .. Appellant Vs Sanjay Rajaram Kusalkar .. Respondent (Org. Accused No. 1) WITH CRIMINAL APPEAL NO. 945 OF 2012 The State of Maharashtra .. Appellant Vs Sanjay Rajaram Kusalkar & Ors. .. Respondent (Org. Accused Nos. 1 to 3) ...................

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Appearances
Mr. ParagV. Dube	Advocate for the accused.
Mr. Rahul Kulkarni	Advocate for the original complainant.
Mr. H.J. Dedia	APP for the State

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CORAM : SMT. V.K. TAHILRAMANI &

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MRS. MRIDULA BHATKAR, JJ.

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DATE : DECEMBER 6, 2016 In Chamber at 2.40 p.m.

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ORAL ORDER [PER MRS. M.R. BHATKAR, J.] :

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The present appeals are arising out of the Judgment

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and Order dated 29.8.2011 passed by learned District Judge-

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12 & Additional Sessions Judge, Pune in Sessions Case No. 17 of 2008. By the said judgment & order, the appellant - accused No. 1 Sanjay Rajaram Kusalkar is convicted under

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Sections 494 and 495 of IPC and sentenced to suffer rigorous imprisonment for two years and fine of Rs. 3000/- in default R.I. for six months on each count. However, he is acquitted of the offence punishable under Sections 420, 496,

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376, 323, 504 r/w 34 of IPC. Further the other accused i.e accused Nos. 2 and 3 namely Dinesh Rajaram Kusalkar and Krushnabai Rajaram Kusalkar are acquitted from all the

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offences. The said Judgment and Order is under

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challenge in these appeals.

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The original complainant in the present case is the second wife of appellant Sanjay. During existence of first wife and first marriage, the appellant has performed a marriage on 2.6.2005 with the original complainant. She gave birth to a male child and thereafter, she came to know about the first marriage of the appellant. Dispute started between the appellant Sanjay and the complainant. The prosecutrix then started residing with her parents. She lodged complaint against the appellant Sanjay and his mother and brother under the relevant sections and after completion of investigation, the charge sheet was filed. All the accused were tried and the trial concluded in conviction of the appellant Sanjay i.e the husband under sections 494

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& 495 of IPC and acquittal of other accused i.e mother and brother of Sanjay as mentioned above. Being aggrieved by the conviction, the appellant Sanjay has preferred Criminal Appeal No. 1156 of 2011. The State has filed

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Criminal Appeal No. 538 of 2012 for enhancement of sentence in respect of accused No. 1 Sanjay and also Criminal Appeal No. 945 of 2012 against acquittal of accused Nos. 1 to 3.

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During pendency of these appeals, Criminal Application

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No. 1503 of 2016 under Section 482 is filed by the appellant

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Sanjay for quashing of the criminal proceedings as the parties have entered into compromise.

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Learned APP stated that the State has filed two

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appeals. One is for enhancement of sentence awarded to appellant Sanjay and other is against acquittal of the accused. He opposed these appeals being dismissed on the

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ground of compromise between the parties.

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We have gone through the judgment & order and the evidence adduced in this case and we are of the opinion that

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the view of acquittal taken by the trial Court is a reasonable

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and possible view. The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction, but, however, the court hearing an appeal against acquittal, will not interfere solely because a different possible view may arise on the evidence. The Supreme Court in the decision in the case of C. Anthony Vs. K.G. Raghavan

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Nair¹ has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. We have already observed that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, we are not inclined to interfere in the judgment and order of acquittal.

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Heard learned counsel for the accused and learned

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counsel for the original complainant. The complainant and

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the appellant Sanjay are present before us. The complainant

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1 (2003) 1 SCC 1

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has filed affidavit stating that she has no grievance against the appellant Sanjay. She and Sanjay and the other accused have amicably settled the dispute. It is basically a matrimonial dispute and she now wishes to remarry. She is having a son from the appellant Sanjay who is 11 years old and taking education. It is stated by her that considering the future of her son of which the appellant Sanjay has accepted

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the paternity, she wants to settle the dispute. It is further stated that the appellant Sanjay has assured her that he would pay compensation amounting to Rs. 4,00,000/[ Rupees Four Lacs only ] to her towards full and final settlement of her and her sons claim. She has also stated that the appellant Sanjay has assured her that he would not interfere in her life and her family and would not cause any

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sort of trouble to her and her son Yash in future.

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The prosecutrix is present before the Court. We made query to her about the settlement. She confirmed the contents in her affidavit and informed the Court that she has

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voluntarily given consent for the compromise and she has no

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grievance against any of the accused.

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We rely on the ratio laid down in the decision of the

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Supreme Court in the case of Gian Singh Vs. State of Punjab & Anr.² . wherein the Supreme Court has dealt with inherent powers of the High Court under Section 482 and the

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powers to compromise and use of Section 320 of the Code of Criminal Procedure. The Supreme Court in the said case has held that inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with

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the guideline engrafted in such power viz. (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. The Supreme Court has observed that for any of

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these purposes the criminal proceedings or complaint or FIR can be quashed. In the said decision, the Supreme Court has enlightened that on considering the nature and gravity of the offences and the nature of the cases, the matters can be

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allowed to be compromised and inherent powers can be

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2 (2012) 10 SCC 303

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invoked. On the background of this ratio, we may note that the appellant Sanjay was convicted for the offence under Sections 494 and 495 of IPC which are arising out of matrimonial offences. Neither the offence under Section 494

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nor under Section 495 is cognizable. Both these offences are non-cognizable & triable by the Judicial Magistrate First Class. Thus, these offences are mainly against the personal

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or private injury. If the aggrieved party comes forward and makes a statement before the Court that in her own interest,

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she has decided to enter into compromise, then her statement can be safely accepted after verifying the facts and the matter can be compromised. Moreover, the husband i.e the appellant Sanjay is employed in semi-Government establishment and has responsibility of his earlier family. We

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are taking this compromise on record and in view of this compromise and the present set of facts and circumstance, we hereby set aside the judgment and order dated 29.8.2011 passed by learned District Judge-12 & Additional

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Sessions Judge, Pune in Sessions Case No. 17 of 2008.

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As far as the appeal for enhancement of sentence is concerned, this is only in relation to accused Sanjay. In view of the compromise between the complainant with accused Sanjay, we are not inclined to enhance the sentence, hence, the appeal for enhancement of sentence is dismissed.

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In view of the compromise, appellant Sanjay has handed over a demand draft bearing No. 131721 dated 28.11.2016 for Rs. 4,00,000/- drawn on Central Bank of India, Pune to the prosecutrix. The prosecutrix has accepted

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the same towards full and final settlement of her claim and towards claim of her son Yash.

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In view of the above, all the appeals as well as application stand disposed of.

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[ MRS. MRIDULA BHATKAR, J ] [ SMT. V.K. TAHILRAMANI, J. ]

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The State of Maharashtra v. Sanjay Rajaram Kusalkar and Ors.

Case brief

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The State of Maharashtra v. Sanjay Rajaram Kusalkar and Ors.

Case brief

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