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Whether fir u/s 498a of ipc is maintainable by second wife?

 

Whether FIR u/s 498A of IPC is maintainable by second wife?

 


The defence of the respondent is that his marriage with his

first wife was subsisting and consequently Vidya cannot be said to be a
“wife” within the meaning of Section 498A. The trial court has accepted
the evidence led by the respondent-accused and come to the conclusion that
since the first marriage of the respondent was subsisting, respondent cannot
be said to be husband of PW 1 – Vidya nor can Vidya be said to be the wife
of the respondent-accused. The trial court ultimately came to the
conclusion that no offence punishable under Section 498A of the IPC had

been proved.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APEPAL NO. 1392 OF 2004
The State of Maharashtra

Vs.

Vikas Ganpatrao Sonar

CORAM: P. V. HARDAS &
P. N. DESHMUKH, JJ.
NOVEMBER 27, 2013.
ORAL JUDGMENT [ Per P. V. Hardas, J.] :
Citation; 2014 ALLMR(CRI) 1029

https://www.lawweb.in/2014/03/whether-fir-us-498a-of-ipc-is.html



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 3 Replies

Shantanu Wavhal (Worker)     31 March 2014

Bombay High Court

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pdp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APEPAL NO. 1392 OF 2004

The State of Maharashtra .. Appellant

Vs.

Vikas Ganpatrao Sonar

Age 43 years,

Occ: Service, Residing at

E/602, Ajmera Housing Society,

Parvatinagar, Sinhagad Road,

Pune City. .. Respondent

Mr. F. R. Shaikh, APP for appellant – State.

Mr. N. R. Bubna for respondent.

CORAM: P. V. HARDAS &

P. N. DESHMUKH, JJ.

NOVEMBER 27, 2013.

ORAL JUDGMENT [ Per P. V. Hardas, J.] :

1. This is an appeal filed by the appellant – State questioning the

correctness of the judgment of 15th Ad-hoc Assistant Sessions Judge, Pune,

dated 31/7/2004 in Sessions Case No. 3 of 2003 acquitting the respondentaccused

for offence punishable under Sections 498A and 307 of the IPC.

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2. Facts in brief as are necessary for the decision of this appeal

may briefly be stated thus:-

PW 6 – PI Rajendra Shelke, who was attached to the

Dattawadi Police Out-post on 24/10/2002, was informed by one police

constable about the receipt of information from the Harjeevan Hospital

about admission of one lady with burns. Accordingly, PW 6 – PI Shelke

directed Constable Salunke to record the statement of the victim and also to

get her statement recorded by a Magistrate. Accordingly, a requisition was

issued to the Special Judicial Magistrate for recording the statement of

injured – Vidya. The said communication is at Exh. 48. Thereafter, PW 6 –

PI Shelke visited the Harjeevan Hosptial and contacted the doctor in order

to verify if injured was in a fit condition to give her statement. The

Medical Officer examined the injured and opined that she was in a fit state

of mind to give her statement. Accordingly, the statement of Vidya was

recorded in the presence of the Medical Officer at Exh. 15. The aforesaid

statement was read over to Vidya and Vidya admitted the contents to have

been correctly recorded. On the basis of the statement of Vidya at Exh. 15,

an offence vide Crime No. 245 of 2002 was registered under Sections 498A

and 307 of the IPC against the respondent-accused. PW 6 – PI Shelke

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thereafter proceeded to the scene of the incident and in the presence of the

panch witnesses drew the scene of the incident panchanama at Exh. 46.

From the scene of the incident, one saree, one tea cup and one match-box

came to be seized. The aforesaid articles seized from the scene of the

incident are Articles 1 to 3. On 25/10/2002 the respondent-accused was

arrested under arrest panchanama at Exh. 49. Thereafter statements of the

witnesses were recorded and further to the completion of the investigation,

a charge-sheet against the respondent was submitted.

On committal of the case to Court of Sessions, trial court vide

Exh. 3 framed charge against the respondent for offence punishable under

Sections 498A and 307 of the IPC. The respondent denied his guilt and

claimed to be tried. Prosecution, in support of its case, examined 7

witnesses. The defence of the respondent-accused was of denial. The trial

court, upon appreciation of the evidence, acquitted the respondent for the

aforesaid offences. The appellant – State being aggrieved by the acquittal,

has filed the present appeal.

3. Prosecution has examined PW 1 – Vidya, who deposes that

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she had been married earlier and after obtaining a divorce by mutual

consent from her first husband, she had married the respondent. According

to PW 1 – Vidya, the respondent was also married earlier. PW 1 – Vidya

has not stated that the respondent had obtained divorce from his previous

wife. According to PW 1 – Vidya, she began to reside with the respondent,

but the respondent used to ill-treat her and used to demand that Vidya

should bring money from her parents. According to Vidya, on the day of

the incident, the respondent had returned home and thereafter had poured

kerosene and had set her ablaze. According to PW 1 – Vidya, the

respondent thereafter fled from the scene of the incident. Vidya, thereafter,

went to the Harjeevan Hospital, where she was admitted and her statement

was recorded.

In cross-examination, PW 1 – Vidya has admitted as true that

while going towards the Harjeevan Hospital, Dattawadi Police Out-post is

on way. Admittedly, Vidya had not gone to the police station for lodging a

report. Omission has also been duly proved that Vidya had not stated in

her previous statement that on the day of the incident, the accused had

returned home from work at about 1 p.m. and had assaulted her. It was

also not stated by her in her previous statement that the accused thereafter

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had left for work and had returned again at 2 p.m. An omission has also

been duly proved that Vidya had not stated that at about 2.30 p.m., while

she was doing her routine work in the house, the respondent had poured

kerosene on her and had thrown a burning matchstick and Viday realized

about this when her clothes caught fire. An omission has also been duly

proved that Vidya had not stated that the accused had left the house after

closing the door. An omission has also been elicited in respect of Vidya not

stating in her report about informing her parents. Vidya has further

admitted that till she had reached the hospital, she had not lodged any

report. She has further admitted that when she was taken on the ground

floor of the house for going to the hospital, the police had arrived and she

claims to have narrated the incident to the police. However, the aforesaid

fact is not supported by the police. Thus it is clear that despite several

chances being available to PW 1 – Vidya, Vidya had not narrated the

incident to the police, particularly about the respondent setting her ablaze.

In further cross-examination of PW 1 – Vidya, it has been elicited that

Vidya does not know if the respondent had obtained divorce from his

earlier wife.

4. The defence of the respondent is that his marriage with his

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first wife was subsisting and consequently Vidya cannot be said to be a

“wife” within the meaning of Section 498A. The trial court has accepted

the evidence led by the respondent-accused and come to the conclusion that

since the first marriage of the respondent was subsisting, respondent cannot

be said to be husband of PW 1 – Vidya nor can Vidya be said to be the wife

of the respondent-accused. The trial court ultimately came to the

conclusion that no offence punishable under Section 498A of the IPC had

been proved.

5. In respect of the offence punishable under Section 307 of the

IPC, the trial court came to the conclusion that the report lodged by Vidya

was a belated report as Vidya had several opportunities of disclosing the

incident to the police. The false implication of the respondent – accused

could not be ruled out. The trial court, therefore, gave the benefit of doubt

to the respondent-accused and acquitted him.

6. With the assistance of the learned APP, we have perused the

findings recorded by the trial court. The view taken by the trial court is a

possible view to be taken on the basis of evidence on record. No perversity

has been pointed out to us in the reasoning of the trial court. Merely

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because another view of the evidence is possible is not a ground to interfere

with the order of acquittal. In any event, according to us, the view taken by

the trial court is the only view that is possible in the face of the evidence on

record. We, thus, do not notice any merit in the present appeal and the

present appeal is, therefore, liable to be dismissed.

7. Before parting with this appeal, we find that Criminal

Application No. 1574 of 2013 has been filed by the respondent as well as

PW 1 – Vidya. It appears that the dispute between the respondent-accused

and PW 1 – Vidya has been amicably settled and certain settlement terms

have been arrived at in the Family Court. Accordingly, affidavits of the

parties have been tendered in this court in the present appeal evidencing the

settlement arrived at between the parties. We, therefore, take those

affidavits on record.

8. As observed by us, since there is no merit in the present

appeal, the appeal is dismissed, confirming the acquittal of the respondent.

(P. N. DESHMUKH,J.) (P. V. HARDAS,J.)

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Shantanu Wavhal (Worker)     31 March 2014

thanx a lot lawweb,


this will help me cracking the false 498a by the lady who married me when HER EARLIER marriage was subsisting.


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