High Court
Legal Reasoning
CriAppeal-372-2006-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 372 OF 2006The State of MaharashtraThrough P.S.O., Azadnagar,Police Station, Dhule.… AppellantVersus1.Sk. Farid Sk. Rafik,Age 24 years,2.Sk. Rafik Sk. Sandu,Age 51 years, Occupation Business,3.Ambiyabee Rafik Shaikh,Age 43 years, Occupation Household,4.Faruk Sk. Rafik Sk.Age 26 years,5.Sk. Faim Sk. Rafik,Age 19 years, Occupation Education,All R/o. Jaishankar Colony,Behind House of Dr. Kabir,80 Feet Road, Dhule.… Respondents(Orig. Accused)…..Mr. S. S. Dande, APP for the Appellant-State.Mr. Akram Inamdar h/f Mr. S. S. Kazi, Advocate for Respondents...... CORAM :ABHAY S. WAGHWASE, J. Reserved on: 11.08.2025Pronounced on: 14.08.2025 CriAppeal-372-2006-2- JUDGMENT : 1.This is a State Appeal, whereby exception has been taken to thejudgment and order of acquittal dated 18.01.2006, by which learnedJ.M.F.C., Dhule acquitted present respondents from charges underSection 498-A, 323, 504, 506 r/w 34 of the Indian Penal Code [IPC].2.Charge was framed and trial was conducted against presentrespondents on the premise that, PW2-complainant was married toaccused no.1 in 1998 and she started residing with in-laws i.e.accused. After six months or so, accused persons put up a demand ofRs.50,000/- for motor business and on such count, there wasmaltreatment and harassment which she reported to her parents. On02.01.2001, in above backdrop, as demand was not met, it is allegedthat accused persons beat PW2-complainant. She lodged report,resulting into registration of crime. On completion of investigation, accused were chargesheetedand tried before learned J.M.F.C., Dhule vide R.C.C. No. 191 of 2001for above charge. In trial court, case of prosecution is based on theevidence of in all six witnesses. After appreciating the evidence,learned trial court refused to accept the prosecution case andacquitted the accused. CriAppeal-372-2006-3- Feeling aggrieved by the same, State has come up in appeal. 3.Learned APP would take this Court through the evidence ofcomplainant PW2, her parents as well as maternal uncle and wouldpoint out that they are all consistent regarding demand and aboutabuses and beating. He would point out that PW6 Jainul is the starwitness, to whom PW2 immediately approached after being beatenmercilessly by accused persons. That, prosecution had also examinedPW1 Medical Officer on the point of injuries suffered due to beatingat the hands of accused. Thus, according to learned APP, there isoverwhelming and clinching evidence in support of charge.4.Learned APP would take serious exception to the trial courtjudgment on the point of it taking recourse to the findings in a civilsuit and applying the same while according acquittal. On this count,he seeks reliance on the judgment of Hon’ble Apex Court in the caseof Kishan Singh (Dead) through LRs v. Gurpal Singh and others[(2010) 8 SCC 775].5.Learned APP also pointed out that, non-examination ofInvestigating Officer itself was not fatal, more particularly, accordingto him, when there is evidence of victim complainant finding supportfrom evidence of parents. CriAppeal-372-2006-4- On above both grounds, he urges indulgence at the hands ofthis Court for allowing the appeal.6.Learned counsel for original accused would support thejudgment and findings of trial court. According to him, there weregeneral and omnibus allegations. Secondly, there was delay inlodging report and which is primarily admitted by witnesses to beafter due deliberation and consultation. He would point out that thereis correct appreciation of evidence as well as law and would alsosubmit that, appellate court cannot alter the judgment by takingdifferent view. 7.Evidence of complainant is at Exhibit 21. There is evidence ofher parents as PW3 and PW4 at Exhibits 23 and 25 respectively. PW5is the grandfather and PW6 is an acquaintance. 8.Re-appreciated and re-analyzed their evidence. Relations arenot disputed. According to complainant PW2, six months prior to2001 accused persons demanded Rs.50,000/- for motor business, anddue to poverty, her parents could not meet the demand. Accusedpersons abused her, they beat her and even suspected her character.These are the fundamental allegations. However, as stated above, as
Legal Reasoning
CriAppeal-372-2006-5- many as five accused are facing trial. She has admitted in cross thataccused no.5 was then barely 19 years of age and was takingeducation at Nagaon. Again, there is substance in the argument putforth by learned counsel for respondents that, allegations are generaland omnibus in nature and specific roles are not crystallized ordefined. She has reported beating to her on 02.01.2002 by kicks andfist blows and she claims to have left the house and went to house ofPW6. 9.PW6, who is examined at Exhibit 30, claims that in the morningof 02.01.2001, PW2 came along with her brother and he found her infrightened condition and borrowed money from him to pay the fare.He claims that, he advised her to take rest and thereafter she told himthat she was beaten. Again, this witness has not stated about beinginformed regarding beating by all accused, or about demand ofRs.50,000/- being raised and in such backdrop she being beaten. Thiswitness claims that he accordingly informed her parents on telephoneand they came and took her away. As pointed out, there is no reportor complaint on 02.01.2001. Rather complaint is lodged on03.01.2001 without assigning any reason for the delay. Witnesses,including parents, have admitted that after discussion anddeliberation, report has been lodged. CriAppeal-372-2006-6- 10.Parents PW3 and PW4 are also examined. According to PW3-mother, her daughter came for delivery and went back to hermatrimonial house. She claims that her daughter told about accuseddemanding Rs.50,000/- for vehicle business and beat and abused her.This witness stated that four years prior to 02.01.2001, there wasbeating to her daughter and they had learnt about it on telephone.PW4 father stated that after marriage, for some days, accused personsbehaved properly with his daughter. Then there was demand ofRs.50,000/- and they used to beat his daughter and used to send herto maternal home. Such is not the version of either daughter PW2 oreven his own wife PW3. 11.PW5 is the grandfather, and he deposed that after one to twoyears of her marriage, his grand daughter told that behaviour ofaccused was not proper and that accused no.1 did no work and eventhreatened to kill her. He also stated about demand of money, buthow much demand was raised has not been stated by him and headmits to this extent in the examination-in-chief itself. He has notstated about alleged occurrence dated 02.01.2001. CriAppeal-372-2006-7- 12.Therefore, what is emerging on evaluation of evidence of PW2,PW3, PW4 and PW5 is that, marriage is of 1998. Witnesses are notconsistent since when demand was raised. Allegations of beating areattributed to all accused without specifying the role. Generalallegations are made that she was beaten by kicks and fist blows.Alleged beating is of 2001 i.e. after three years of marriage. None ofthe witnesses speak about beating earlier to January 2001. Only oneinstance of 02.01.2001 is quoted, that too, wherein there are generaland omnibus allegations. Law is fairly settled that, Section 498-Acontemplates persistence and continuous physical and mentalharassment. Here, it is not so. 13.Learned APP has taken serious exception to the approach oflearned trial Judge in considering judgment of learned Civil JudgeSenior Division in Regular Civil Suit No. 10 of 2001 which was at theinstance husband seeking decree of perpetual injunction forrestitution of conjugal rights which was apparently decreed in favourof husband. Precise submission of learned APP is that, it was not openfor learned trial court dealing with charge under Sections 498-A, 323and other sections of IPC to take recourse to or rely on the judgmentdelivered by Civil Court, and he has also sought reliance on abovesaid ruling. CriAppeal-372-2006-8- 14.Perused the judgment so relied and referred, i.e. Kishan Singh(supra), wherein proceedings under Section 482 Cr.P.C. forquashment of FIR were under consideration and Hon’ble Apex Court,after dealing with several other judicial pronouncements, in para 18held as under :“18.Thus, in view of the above, the law on the issuestands crystallized to the effect that the findings of factrecorded by the Civil Court do not have any bearing sofar as the criminal case is concerned and vice-versa.Standard of proof is different in civil and criminal cases.In civil cases it is preponderance of probabilities whilein criminal cases it is proof beyond reasonable doubt.There is neither any statutory nor any legal principlethat findings recorded by the court either in civil orcriminal proceedings shall be binding between the sameparties while dealing with the same subject matter andboth the cases have to be decided on the basis of theevidence adduced therein. However, there may be caseswhere the provisions of Sections 41 to 43 of the IndianEvidence Act, 1872 dealing with the relevance ofprevious Judgments in subsequent cases may be takeninto consideration.”15.It would be worthwhile to deal with the judgment of Hon’bleApex Court in the case of Syed Askari Hadi Ali Augustine Imam and CriAppeal-372-2006-9- Ors. vs. State (Delhi Admn.) and Ors. MANU/SC/0343/2009[Criminal Appeal No. 416 of 2009 (arising out of SLP (Crl.) No. 5791of 2005]. Even in this judgment, issue about precedents of criminalproceedings over civil proceedings was under consideration. Thequestion to that regard which arose in the case of K. G. Premshankerv. Inspector of Police and another; MANU/SC/0771/2002 was quotedand the same is borrowed and reproduced hereunder : “30. What emerges from the aforesaid discussion is --(1) the previous judgment which is final can be reliedupon as provided under Sections 40 to 43 of theEvidence Act; (2) in civil suits between the same parties,principle of res judicata may apply; (3) in a criminalcase, Section 300 CrPC makes provision that once aperson is convicted or acquitted, he may not be triedagain for the same offence if the conditions mentionedtherein are satisfied; (4) if the criminal case and thecivil proceedings are for the same cause, judgment ofthe civil court would be relevant if conditions of any ofSections 40 to 43 are satisfied, but it cannot be said thatthe same would be conclusive except as provided inSection 41. Section 41 provides which judgment wouldbe conclusive proof of what is stated therein.31. Further, the judgment, order or decree passed in aprevious civil proceeding, if relevant, as provided underSections 40 and 42 or other provisions of the Evidence CriAppeal-372-2006-10- Act then in each case, the court has to decide to whatextent it is binding or conclusive with regard to thematter(s) decided therein. Take for illustration, in a caseof alleged trespass by A on B's property, B filed a suit fordeclaration of its title and to recover possession from Aand suit is decreed. Thereafter, in a criminal prosecutionby B against A for trespass, judgment passed betweenthe parties in civil proceedings would be relevant andthe court may hold that it conclusively establishes thetitle as well as possession of B over the property. In suchcase, A may be convicted for trespass. The illustration toSection 42 which is quoted above makes the positionclear. Hence, in each and every case, the first questionwhich would require consideration is -- whetherjudgment, order or decree is relevant, if relevant -- itseffect. It may be relevant for a limited purpose, such as,motive or as a fact in issue. This would depend upon thefacts of each case.”16.Similarly, in para 12 of the said judgment Syed Askari (supra),on a citation relied by learned counsel therein in the case of SurinderKumar and others v. Gian Chand and others MANU/SC/0024/1957,the scope and nature of Section 41 of Indian Evidence Act 1872 wasdealt and discussed. Relevant portion of para 12 is reproducedhereunder: CriAppeal-372-2006-11- “Section 41 of the Indian Evidence Act reads as under:41 - Relevancy of certain judgments in probate,etc., jurisdiction. -- A final judgment, order ordecree of a competent Court, in the exercise ofprobate, matrimonial admiralty or insolvencyjurisdiction which confers upon or takes awayfrom any person any legal character, or whichdeclares any person to be entitled to any suchcharacter, or to be entitled to any specific thing,not as against any specified person butabsolutely, is relevant when the existence of anysuch legal character, or the title of any suchperson to any such thing, is relevant. Suchjudgment, order or decree is conclusive proof- that any legal character which it confersaccrued at the time when such judgment, orderor decree came into operation; that any legal character, to which itdeclares any such person to be entitled, accrued,to that person at the time when such judgment,order or decree declares it to have accrued tothat person; that any legal character which it takes awayfrom any such person ceased at the time fromwhich such judgment, order or decree declaredthat it had ceased or should cease; and that anything to which it declares anyperson to be so entitled was the property of thatperson at the time from which such judgment,order or decree declares that it had been orshould be his property.It speaks about a judgment. Section 41 of the EvidenceAct would become applicable only when a finaljudgment is rendered. Rendition of a final judgmentwhich would be binding on the whole world being CriAppeal-372-2006-12- conclusive in nature shall take a long time. As and whena judgment is rendered in one proceeding subject to theadmissibility thereof keeping in view Section 43 of theEvidence Act may be produced in another proceeding. Itis, however, beyond any cavil that a judgment renderedby a probate court is a judgment in rem. It is binding onall courts and authorities. Being a judgment in rem itwill have effect over other judgments. A judgment inrem indisputably is conclusive in a criminal as well as ina civil proceeding.”17.Thus, in the considered opinion of this Court, from abovejudicial precedent, it is clear that except in provisions of Section 41 to43, previous proceedings and judgments therein may not beapplicable. Above quoted Section 41 clearly contemplates finaljudgment, order or decree of a competent court in exercise of probate,matrimonial admiralty or insolvency jurisdiction to be conclusiveproof. What is required is final judgment. Here also, learned CivilCourt has decreed the suit of husband accused herein seekingperpetual injunction for restitution of conjugal rights. Therefore, evenin the considered opinion of this Court, there is no hurdle for takingrecourse to civil proceedings when they are between same parties.Even otherwise, independent of that, here, on merits also, case forSection 498-A has not been made out. CriAppeal-372-2006-13- 18.As regards to commission of offence under Section 323 IPC isconcerned, though there is evidence of PW1 doctor, for above statedreasons that, which of the accused played what role, and allegationsbeing in sweeping manner, coupled with the aspect of delayed FIR,there is possibility of false implication. For said reasons, even chargeof Section 323 IPC is not proved beyond reasonable doubt. Even asregards to other charges of commission of offence under Sections 3and 4 of Dowry Prohibition Act are concerned, there is weak or noevidence. 19.Bearing in mind the law while dealing with appeal againstacquittal and when there is no patent perversity brought to the noticeof this Court, this Court refrains from interfering in the orderimpugned. Hence, the following order :ORDERThe Appeal is dismissed. [ABHAY S. WAGHWASE, J.]vre