Bombay High Court
Kalpana Ganesh Chaudhari vs The State Of Maharashtra And Others on 19 September, 2019
Author: P.R. Bora
Bench: P.R. Bora
1 97.2019ALP..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
911 APPLN. FOR LEAVE TO APPEAL BY PVT.
PARTY NO.97 OF 2019
KALPANA GANESH CHAUDHARI
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Applicant : Shri N.C. Garud
APP for Respondent - State : Shri S.M. Ganachari
...
CORAM : P.R. BORA, J.
Dated: September 19, 2019
PER COURT :-
1. Heard Shri Garud, learned counsel appearing for the
applicant. Perused the impugned Judgment and order. The learned
Trial Court in para nos.13 to 15 has recorded its finding. I deem it
appropriate to reproduce the said discussion as it is:
"13. In the view of above and after perusal of evidence
available on record, it appears to me that the complainant
and witnesses have not disclosed actual words, if at all used
by accused, to provoke the complainant to commit any other
offence. During the cross-examination, the complainant has
admitted that, she has not stated in her examination-in-chief
about abusive words passed by each accused. The
complainant has also admitted that she has not stated in her
examiantion-in-chief about presence of PW-2 and PW-3.
The exact words used in the abuses have not been furnished
by the complainant and her witnesses. In the absence of any
material specifying the insulting words actually used by the
accused persons, I hold that the complainant / prosecution
has not proved the offence punishable under Section 504
IPC against the accused persons.
14. Section 341 of the IPC provides punishment for
wrongful restraint and definition of wrongful restraint is
provided under Section 339 of the IPC, which defines
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wrongful restraint as, "whoever voluntarily obstructs any
person so as to prevent that person from proceeding in any
direction in which that person has a right to proceed, is said
wrongfully to restraint that person. To prove the offence
under Section 341 IPC, the prosecution needs to establish
that the accused obstructed a person, such obstruction was
voluntarily and such obstruction prevented him from
proceeding in the direction in which he had a right to
proceed. In the present case the complainant has stated
that the accused persons has obstructed her from
performing religious rite of death anniversary of her father
in law. It is also pertinent to note that the relationship
between the complainant and accused persons not in
dispute. In the view of above, it can be seen that the
ingredients of Section 339 IPC regarding the offence of
wrongful restraint are completely different. It is not made
clear from the evidence availabel on record in which
direction the complainant had right to proceed and in which
way accused persons voluntarily obstructed her right to
proceed.
15. To prove the offence under Section 452 of the IPC
the prosecution needs to establish that the accused
committed house trespass after making preparation for
causing hurt to any person or of assaulting any person or for
putting any person in fear of hurt, assault or of wrongful
restraint. It is admitted by the complainant that the accused
persons are her close relatives. In her chief examination the
complainant has stated that on 17.06.2015, on occasion of
first death anniversary of her father-in-law, her relatives and
accused persons were present there. The complainant ought
to have examined her husband, her mother-in-law. The
complainant has also stated that the accused persons have
hurled abuses towards her relatives, however, the
complainant has not examined any relatives who were
present there. The complainant has not established
evidence of preparation for causing hurt to any person. The
complainant has not produced documentary evidence of her
house. PW-2 and PW-3 has admitted that they are friend of
the complainant's husband. In such circumstances, I would
not like to rely on the complainant side evidence to make
the base for conviction of the accused persons."
2. Having considered the discussion made by the Trial
Court and the evidence in light of the observations made, it does not
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appear to me that, any case is made out for allowing the application.
Hence the following order.
ORDER
(i) The application is rejected.
( P.R. BORA, J. ) ...
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