IN THE COURT OF SESSIONS AT GREATER MUMBAI

CRIMINAL APPEAL NO. 403 OF 2018

IN

C.C. NO. 97/PW/2005

The State ( at the instance of Gamdevi Police Station) ...Appellant

V/s

Kalpana Gandhi ... Respondent

( Original Accused)

REPLY ON BEHALF OF THE RESPONDENT:

On behalf of the Respondent abovenamed it is humbly submitted as

under:

1. That the Respondent was acquitted by the Ld. Additional Chief

Metropolitan Magistrate, 40th Court at Girgaum, Mumbai (“the Ld.

Trial Court”) vide the Order and Judgment dated 02.02.2013 in

C.C. No. 97PW of 2005 for offences punishable under Sections

506 II, 504, 509 r/w Section 34 of the IPC. (“Judgment”).

2. Aggrieved by the acquittal, the State at the instance of the

Gamdevi Police Station has filed the present Criminal Appeal

against the aforesaid Judgment. Since there was a delay of 33

days in filing the present Appeal, the State had moved a

Miscellaneous Application bearing No. 1566 of 2013 inter alia

seeking to condone the said delay. This Hon’ble Court was pleased

to allow the said Application, condone the said delay and list the

Appeal for Reply of the Respondent and Final Hearing.

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3. That at the outset, the Appeal filed by the State is misconceived,

de jure as well as de facto, mechanical and does not at all make

out ay grounds whatsoever for reversing the said Judgment and

allowing the present Appeal.

4. That the grounds in the memorandum of Appeal even ex facie

make out no case to assail the reasoning and findings of fact by

the Ld. Trial Court.

5. That ground nos. (a)-(f) are stereotypical and mechanical and do

not address the pith and marrow of the impugned Judgment.

6. That ground no. (g) deals with extraneous material which neither

forms the subject-matter of the prosecution case nor is addressed

in the impugned Judgment and is thus de hors and superfluous.

7. That ground no. (h) and (i) are stereotypical and mechanical and

do not address the pith and marrow of the impugned Judgment.

8. That ground nos. (j), (k) and (l) deal with extraneous material

which neither forms the subject-matter of the prosecution case

nor is addressed in the impugned Judgment and is thus de hors

and superfluous.

9. That at this stage it would ne proper and apposite to place on

record the analysis of the evidence led by the Prosecution before

the Ld. Trial Court in light of its Findings and Observations as is

apparent from the Judgment.

a. That the present Respondent and another co-Accused

(Original Accused No.2) were initially arraigned in the

present proceedings, however, since the Prosecution was

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 unable to serve the said co-Accused, the Trial could not

proceed against him.

b. That, the said criminal proceedings had been initiated at

the instance of one Jeevanlata Jayantrao Dhanwate against

the sister of her husband i.e. the present Respondent in the

year 1999 for offences punishable U/s. 506 (II), 504, 509

r/w 34 of IPC. The Respondent appeared in Court, pleaded

not guilty as charged and claimed to be tried. Three

witnesses were examined by the prosecution to prove their

case.

c. That, the material contradictions, omissions and

improvements in the evidence of the Complainant, the

inadmissibility of the documents relied upon by the

prosecution and their preposterous contentions

unsubstantiated by corroborative evidence are evident of

the fact that the case against the Respondent holds no

water and hence, the present Appeal deserves to be

dismissed.

d. That, a meticulous analysis of the complaint, the final

report with its documents, the evidence and the statement

of the Respondent reveals that the FIR was lodged by the

Complainant in person in the Gamdevi Police Station on

27.1.1999. The allegations against the Respondent in the

said FIR in short are that:

(i) Firstly, the Respondent has started abusing and vitiating

the atmosphere in the house for the last two years.

(ii) Secondly, on 8.12.1998, the Respondent allegedly

threatened the complainant that she would kill her if

she (complainant) continued to quarrel with her

not staying in the house since 11.12.1998.

(iii) Thirdly, on 23.01.1999, nearly one year later, she

received an inland post card scribbled with a

handwritten note threatening her that she will be killed

by hanging. Complainant believes that someone on

behalf of the Respondent was responsible for the said

note which was unsigned.

(iv) Fourthly, on 27.01.1999, the Complainant received a call

on her residence landline in the afternoon, wherein the

Respondent identified herself on phone and threatened

to kill the Complainant and her husband if she was not

allowed to live in the house.

This is the pith and marrow of the allegations of the

Complainant

e. That, during the evidence in court, the Complainant added

more fiction to the already fictitious story and made

material improvements and contradictions which collapsed

the prosecution story like a pack of cards.

f. That, the fact of forceful occupation of the complainant

since 1988 is proved as an omission before the police and a

subsequent addition by the Complainant in Court.

g. That, the fact of abusing by the Complainant for 2 years

has also been proved as an omission/improvement. The

Complainant also admits that no complaint was lodged by

her against the Respondent during that period. This

exposes the falsity of the improvement.

h. That, there is contradiction which at portion marked “A”

wherein before police the Complainant states that the

abusing was from 1998 whereas in court she contradicts

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 her previous statement by saying that the abuse was from

1988. This too demonstrates the lies of the Complainant.

i. Regarding the incident of 8.12.1998, there is substantial

difference in the version in court and that given to the

police. In court she has improved on her previous statement

by saying that the Respondent had taunted her whether she

will carry her property after her death. Additionally, it is

very pertinent to note that the threat of dire consequences

is not repeated in the same manner in court as it is the

statement before police. In fact under cross, she admits that

she does not remember whether she told the police of the

fact of dire consequences. This is a very material

contradiction. Also, the complainant in a natural conduct

would have complained to the police if the threat was to kill

as alleged. However, she chose to remain mum which

demonstrates the artificial nature of the complaint.

j. Regarding the second incident, it is pertinent to point out

that she receives an anonymous inland postcard, on which

there is some scribbling which is a threat to kill her by

hanging her from a noose. There is a material contradiction

as to the authorship of the postcard which is marked as

Portion “B”. Before the police, the complainant candidly

states that she feels that Respondent or someone on her

behalf may have written the writing on the postcard.

Whereas, in court, in order to strengthen her false

allegations states with confidence that the postcard is

definitely in the handwriting of the Respondent. On the

other hand she also admits that she is not sure whether she

is familiar with the handwritings of the Respondent. This

evidence certainly cannot inspire confidence in the

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 prosecution case and proves that the document is a got up

document to frame the Respondent in a false case.

k. Regarding the threatening postcard, it is submitted that is

marked in evidence subject to objection by the defence.

The defence has vehemently denied the document and its

authorship. The document is unsigned. There is nothing on

the face of the document indicating whether the Respondent

is directly or indirectly concerned with its making or

execution. The document has remained unproved. No

prayer has been made by the prosecution to compare the

writing of the Respondent to the disputed handwriting. In

view of this, can the mere words of an interested witness be

believed to hold that the Respondent is the author of the

threatening post card ?

l. Regarding the telephonic threats, the allegations of the

complainant seems preposterous. Why would a person who

wanted to threaten over the phone, reveal voluntarily her

true name and identity. There is nothing to corroborate

these so-called telephone threats except the bare words of

the complainant. There is no interception, no call records,

absolutely no iota of evidence to substantiate these wild

allegations and hence they cannot be believed.

m. The Complainant has in her evidence before the court made

very dirty allegations against the Respondent accusing her

of using filthy gutter language in abusing her. It is

submitted that this is a material improvement and the same

is not a part of the FIR. Again except for the bare words of

the Complainant there is no corroboration. It is not far to

see that this material improvement is only with an eye to

prosecute the Respondent U/s. 509 IPC and to prejudice

this Hon’ble Court by tarnishing the image of the

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 Respondent. In reality, the Respondent is the victim of the

devious plan of the husband and wife to throw a divorced

sister on the roads and deprive her of her legal rights by

filing a false complaint against her and dragging her

through a criminal trail for nearly 15 years.

n. The complainant has also sought to introduce a document

namely a letter dated 24.1.1999, which is a letter

purportedy written by her to the Gamdevi Police Station

regarding the threatening postcard received by her. Since it

was not a part of the charge sheet, it was marked as Exhibit

P-2 , subject to objection by the defence. This by itself is a

material improvement as there is no mention of such a

letter in the FIR, nor is it a part of the charge sheet.

Importantly the letter and knowledge thereof has been

denied by P.W.No. 3, the Investigating officer attached to

Gamdevi Police Station and hence no importance can be

attached to it.

o. The P.W. No. 2, Shailaja Prakash Pant the Secretary of the

said society wherein the complainant resided was examined

by the prosecution.However, she was declared hostile as

she did not support the prosecution. She has denied

knowledge of the contents of the threatening post-card and

has failed to identify the same in court. She admits under

cross Respondent used to reside in the said flat alongwith

the complainant. The dispute between the parties was on

account of the fact that after death of the father-in-law of

the Complainant, her husband told the Respondent to leave

the flat, thus the relations of the Respondent were strained

after the death of the father of the Respondent. This proves

how the brother of the Respondent alongwith his wife

wanted to usurp the flat and sensing that civil litigation

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 would not give them immediate relief resorted to this false

proceeding to oust the Respondent from the flat.

10. The impugned judgement finds favour with the submissions

and contentions of the Respondent. It also observes that the

inland postcard ( Exhibit-1) alleged to have been issued by the

Respondent is unsigned, sans the name of the sender. P.W. No.1

is not sure about the handwriting of the author thereof. No

handwriting expert opinion is forthcoming. No material to

compare the handwriting of the Accused with disputed postcard

U/s. 73 of the Evidence Act is placed on record. The judgement

further observes that only on the basis of the oral evidence of P.W.

No.1 U/s. 506(II) of IPC. There are many improvements in the

evidence of P.W. No.1. So far the allegations of threats on the

telephone are concerned, no phone call records are forthcoming to

substantiate the accusations.

11. Thus, in the light of the grounds of appeal, the evidence

before the Ld. Trial Court and the impugned judgement, the

Appeal deserves to be dismissed and the acquittal of the

Respondent be maintained.

Dated

ASHISH S. CHAVAN

Advocate for Respondent