DURGABAI NAVAL PATIL & ORS v. STATE OF MAH

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 39 OF 2005

1. Durgabai w/o. Naval Patil .. Appellants Age. 70 years, resident of

Bharwad Lane, Nandurbar,

Dist. Dhule.

[Abated as per Court's order

dated 27.11.2009]

2. Jasodabai s/o. Shankar Patil Age. 48 years, r/o. Chhadwel, Tal. Sakri, Dist. Dhule.

3. Jaggya @ Jagannath Govind Patil Age. 32 years, R/o. Damarkheda, Tal. Shahada, Dist. Dhule. Versus

The State of Maharashtra .. Respondent Shri R.S. Shinde h/f. Shri N.L. Choudhari, Advocate for appellant No.2.

Shri S.U. Choudhari, Advocate for appellant No.3. Shri K.M. Suryawanshi, A.P.P. for the respondent.

CORAM : P.R. BORKAR,J.

DATED : 11.03.2010

P.C. :-

1. This is an appeal preferred by the original accused

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Nos. 1 to 3 who were convicted of offence punishable under section 366 of the Indian Penal Code, by the Additional Sessions Judge, Dhule, in Session Case No.100 of 1994, decided on 20.03.1995. Each of the appellant is sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for six months. Appellant No. 1, Durgabai who was original accused No.3 expired pending the appeal. Appellant Nos. 2 and 3 are original accused Nos. 1 & 2. Original accused No.4 Harishkumar Sutar, resident of Sankheda, Dist. Badoda, Gujarat State, had filed separate appeal and expired pending that appeal. Therefore, his appeal has abated. Now, appellant Nos. 2 and 3 who are original accused Nos. 1 and 2 are pursuing this appeal.

2. Brief facts which led to the prosecution as can be gathered from the complaint dated 20.04.1994 lodged by P.W.2 -Minabai is that at Chhadwel, Tal. Sakri, Dist. Dhule, P.W. 2-Minabai was residing with her father P.W.3-Ratilal, mother Hirabai, brother Deva & Shivaji and grand-mother Muktabai. They were labourers. Five years prior to lodging of complaint P.W.2-Minabai married one Aba Pandu Shinde,

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resident of Anrad, Tal. Shahada. However, P.W.2-Minabai did not like him due to defect in his eyes and after seven month's co-habitation, she left her husband and came to reside at Chhadwel with her parents. P.W.2-Mina also lodged a proceeding in the Court at Sakri for getting maintenance from her husband. P.W.2-Minabai was acquainted with appellant No.2-Jasodabai, who was also resident of Chhadwel.

3. It is further stated that about 3 months prior to lodging of the complaint, P.W.2-Minabai had gone to attend hearing of the maintenance proceedings at Sakri and she came back to Chhadwel bus-stand at about 5.00 to 6.00 p.m. At the S.T. Stand, appellant No.2-Jasodabai came near P.W.2- Minabai and told her that in small amount she would arrange marriage of P.W.2-Minabai with a good groom and would settle in her in life. P.W.2-Minabai said that she should consult her parents. But, it is case of P.W.2-Minabai that forcibly she was taken by appellant No.2-Jasodabai to the house of appellant No.1-Durgabai. Thereafter, P.W.2-Minabai was not allowed to go out of the house by appellant No.1-Durgabai. At the house of appellant No.1-Durgabai, appellant No.3-Jaggu @ Jagannath used to come. Appellant No.1-Durgabai told

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appellant No.2 Jaggu that marriage P.W.2-Minabai was to be settled. For 15 days, P.W.2-Minabai lived at the house of appellant No.1 and thereafter appellant No.1 and 3 told P.W. 2-Minabai that they had approved one suitable groom for her and they would perform her marriage, but P.W.2-Minabai should tell that she had no parents, brother of other relatives. It is said that after tutoring thus and giving threats, appellant Nos. 1 and 2 had taken P.W.2-Minabai to village Gundicha, at the house of accused No.4-Harishkumar Sutar, where he lived with his his parents. Appellant No.1-Durgabai told P.W.2-Minabai that her marriage is arranged with accused No.4-Harishkumar and she should marry him. However, P.W.2- Minabai did not want to marry and wanted to go to her parents. But she was told that she had to marry. She was also asked to tell that she had no brother or parents or other relatives. It is said that being afraid P.W.2-Minabai agreed to marry accused No.4-Harishkumar. The marriage was performed and then appellant Nos. 1 and 2 went away. P.W.2- Minabai started living with accused No.4-Harishkumar. Accused No.4-Harishkumar told her that he had paid Rs. 5000/- for arranging marriage to appellant Nos. 1 and 3 and she had to live with him and accordingly P.W.2-Minabai lived with

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original accused No.4-Harishkumar as his wife.

4. It is further stated in the complaint itself that P.W.2-Minabai had no acquaintance with the place and she was not knowing Gujarati language, therefore she was not knowing how to communicate with her parents. It is further stated that on 17.04.1996, appellant No. 3-Jagannath came to the house of accused No.4-Harishkumar and said that the mother of P.W.2-Minabai had become serious. Thereafter, P.W.2-Minabai went with appellant No.3-Jagannath to Dambarkheda, Tal. Shahada. On 19.04.1994 she was taken to Nijampur Police Station, where her complaint was recorded.

5. After above said complaint was lodged, police sent P.W.2-Minabai for examination to Dr. Vidya Patil (P.W.1), who opined that P.W.2-Minabai was normal woman of more than 18 years of age. P.W.1-Dr. Patil issued medical certificate at Exh.19. The statement of father and other relatives of P.W. 2-Minabai were recorded. The statements of uncles of accused No.4-Harishkumar were also recorded. Finally, charge-sheet was sent against the appellant for committing offence punishable under section 366 of the I.P.C.

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6. In all eight witnesses were examined. The learned Sessions Judge came to a conclusion that it is case of conviction and accordingly convicted and sentenced the appellants as aforesaid. It is this order, which is challenged in this appeal.

7. In this case the main argument of the appellants is that the statement of P.W.2-Minabai reveals that P.W.2- Minabai voluntarily went with the appellants and had married original accused No.4-Harishkumar. The case of abduction and threat is nothing but afterthought falsehood. P.W.2-Minabai is examined on oath at Exh. 20. She mainly stated the story mentioned above with some variations. Thus, in the statement at Exh.20, P.W.2-Minabai stated that she had married Aba Shinde in 1989 and lived with him for sometime and then started living with her parents. She also filed case for maintenance in Sakri Court. On the day of incident, she had gone to attend proceedings at Sakri Court and when she came back to Chhadwel S.T. Stand, appellant No.2 - Jasodabai met her at the S.T. Stand. Appellant No.2-Jasodabai told her that she would arrange marriage of P.W.2-Minabai with a good

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husband. P.W.2-Minabai told her that she would have to consult her parents. But inspite of that P.W.2-Jasodabai took her to Nandurbar at the house of appellant No.1- Durgabai.

8. In para 4 of her statement P.W.2-Minabai stated that at Chhadwel bus stand many persons were present when appellant No.2-Jasodabai met her. It is stated that it was first disclosure by appellant No.2-Jasodabai to P.W.2-Minabai that she would find a husband for P.W.2-Minabai. It is further stated that appellant No.2-Jasodabai told P.W.2- Minabai that she should come with her to Nandurbar. According to P.W.2-Minabai, she did not tell any one from Chhadwel present at the bus stand before going with appellant No.2-Jasodabai. She also stated that 5-6 persons from Chhadwel boarded the bus in which P.W.2-Minabai and appellant No.2-Jasodabai boarded. This clearly falsifies that P.W.2- Minabai did not voluntarily go with appellant No.2 and she was forced to do so. However, P.W.2-Minabai stated that she did not leave any message from any of those persons to Chhadwel because she had already given said message through a boy from Chhadwel. Deva was the name of that boy. P.W.2-

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Minabai further stated that she did not tell any of the passengers in the bus that appellant No.2-Jasodabai was forcibly taking her to Nandurbar. This clearly falsifies the story of forcible abduction.

9. In her statement on oath P.W.2-Minabai stated that appellant No.1-Durgabai did not allow her to go out of the house. Appellant No.2-Jasodabai was talking with original accused No.4 in low tone, which she could not hear properly. She lived at the house of appellant No.1-Durgabai for eight days and during that period appellant No.3-Jaggya used to come to the house of appellant No.1-Durgabai and thereafter appellant No.1 and 3 took her to village Gundicha. P.W.2- Minabai stated that appellant No.2-Jasodabai was also with them and attended the marriage, but in cross-examination omission was brought on record that P.W.2-Minabai at no time stated before police that appellant No.2 had come to Gundicha or attended the marriage of P.W.2-Minabai with original accused No.4-Harishkumar. So, this is an improvement.

10. It is stated by P.W.2-Minabai in her statement on oath at Exh.20 that at Gundicha appellants had taken her

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first to the house of original accused No.4-Harishkumar and then to a temple and performed her marriage with accused No. 4-Harishkumar. It is stated by P.W.2-Minabai that in her presence accused No.4-Harishkumar paid Rs. 5000/- to appellant Nos. 2 and 3, but she was then confronted with her statement and omission was brought on record that P.W.2- Minabai did not state before police that in her presence accused No.4 had paid any amount to appllenat Nos. 2 and 3.

11. P.W.2-Minabai further stated that she lived at the house of accused No.4-Harishkumar for three months as his wife. This long duration of living as wife clearly indicate that it must be her voluntary act. It is stated that accused No.4 was saying that he would not allow her to go to her house, unless she brought and paid Rs. 5000/-. P.W.2-Minabai then stated that she had written a letter to her parents informing this and then appellnat No.3-Jagannath came and took her away to Dambarkheda, with excuse that her parent was ill. Police came to the house of appellant No.3-Jagannath and took them to Nijampur police station. P.W.2-Minabai proved her complaint at Exh.21, as narrated above.

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12. P.W.3-Ratilal also stated that he received one letter written by P.W.2-Minabai, which he had produced before police. Admittedly, no such letter is produced on record by the prosecution. No question regarding said letter was put to the Investigating Officer by the learned A.P.P. So case of sending letter appears to be after thought improvement.

13. If we consider the circumstances in which the alleged incident has taken place, it appears that P.W.2- Minabai left her parental house because P.W.2-Minabai wanted to go away with appellant No.2-Jasodabai who had promised to arrange her marriage and did arrange marriage with accused No.4-Harishkumar. As stated earlier while going to Nandurbar, P.W.2-Minabai had every opportunity to disclose to persons present at Chhadwel Bus Stand or to co-passengers in the bus that she was being forcibly taken to Nandurbar. So, P.W.2-Minabai was willing party and it was not abduction. There is nothing on record to show that the appellants have misbehaved with P.W.2-Minabai so as to hold that P.W.2- Minabai was forced to have illicit intercourse with anyone. The circumstance that her marriage had taken place in a temple, that too performed by priest, clearly indicated that

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it must be a marriage voluntarily entered into by P.W.2- Minabai. In her deposition P.W.2-Minabai clearly stated that the priest was present in Satya Mandir at Gundicha where marriage was taken place.

14. P.W.2-Minabai gave her age as 18 years. She admitted that in application for maintenance filed by her in Sakri Court, she had given her age as 20 years. So, she was major and grown up girl, capable of taking decision. Admittedly, she was not happy with her husband Aba Shinde and had deserted him. Obviously, such a young girl might be desirous of having second marriage and in the circumstances she appears to be willing party to the marriage. There is no circumstance to show that there was any force or compulsion. Perhaps such plea of forcible abduction and marriage under compulsion might have been taken to save maintenance proceedings against first husband filed in the Sakri Court. Such possibilities cannot be ruled out.

15. It is also stated by P.W.2-Minabai in the cross- examination that accused No.4 never went for work and remained in the house as long as she was with him. She was

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not knowing accused No.4 had furniture shop, but it has come in the prosecution evidence of other witnesses. It is unlikely that all members of the family would be in the house throughout stay of P.W.2-Minabai at the house of accused No. 4-Harishkumar.

16. In the cross-examination, very damaging admission was given in para 4. P.W.2-Minabai stated that at Nijampur police station, police prepared the complaint seven times, but finally the complaint was finalized on the 8^thoccasion. After her complaint was written finally, her signature was obtained by police. Seven times police wrote complaint as per her say, but every time it was cancelled and on 8^thtime, the complaint was prepared by police and then they obtained signature of P.W.2-Minabai. This admission in the cross- examination should have been sufficient to acquit the appellants. But, unfortunately the Sessions Judge has taken different view for no plausible reason.

17. P.W.3-Ratilal is father of P.W.2-Minabai. He stated in his deposition at Exh.22 that P.W.2-Minabai was missing and after 2 to 2 ½ months he wrote missing report

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Exh.23.

18. Absolutely, there is no other evidence against the appellants/accused.

19. The learned advocate for the appellant relied upon case of Shyam and another V/s. State of Maharashtra, AIR 1995 S.C.2169, in which considering the facts of the case the Supreme Court observed that the prosecutrix appeared to be willing party to go with accused on her own and therefore they could not be convicted of the offence punishable under section 366 of the I.P.C.

20. For all the aforesaid reasons, the appeal against conviction is allowed. The order of conviction and sentence passed against the appellants is hereby set aside. The appellants are acquitted of offence punishable under section 366 of the I.P.C. Their bail bonds stand cancelled. Fine amount, if paid, be refunded to the concerned appellants.

[P.R. BORKAR,J.]

snk/2010/MAR10/crap39.05