In the present case,
PW3 and PW4, the neighbours, though did not support the prosecution,
PW3 and PW4, the neighbours, though did not support the prosecution,
both the witnesses were cross-examined by the learned Prosecutor and
the learned Prosecutor was successful in bringing the material omissions
in the evidence of both the witnesses. These omissions were put to the
Investigating Officer Mr.Pagare (PW5) and in the evidence of PW3
Ramesh, which are marked exhibits 23 and 24 and the omission in the
evidence of PW4 Mehboob is marked exhibit 25. these omissions are
very material. The witness may turn hostile. However, if the omissions are
brought on record and they are proved through the Investigating Officer
then they are to be read in the evidence and these omissions do carry
substantial evidentiary value.
In order to appreciate these omissions,
definitely, the Court has to consider the other prevailing circumstances and
other corroborative evidence. Such omissions cannot be given weightage
in isolation. It is to be considered that the neighbours who stayed in the
same locality may not support the prosecution with a view that their
relations should not get spoiled with the accused as he is a person in
the learned Prosecutor was successful in bringing the material omissions
in the evidence of both the witnesses. These omissions were put to the
Investigating Officer Mr.Pagare (PW5) and in the evidence of PW3
Ramesh, which are marked exhibits 23 and 24 and the omission in the
evidence of PW4 Mehboob is marked exhibit 25. these omissions are
very material. The witness may turn hostile. However, if the omissions are
brought on record and they are proved through the Investigating Officer
then they are to be read in the evidence and these omissions do carry
substantial evidentiary value.
In order to appreciate these omissions,
definitely, the Court has to consider the other prevailing circumstances and
other corroborative evidence. Such omissions cannot be given weightage
in isolation. It is to be considered that the neighbours who stayed in the
same locality may not support the prosecution with a view that their
relations should not get spoiled with the accused as he is a person in
contact and therefore they may not support the prosecution.
CRIMINAL APPEAL NO.5 OF 1999
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Manohar Bhau Dubale
Vs.
The State of Maharashtra
CORAM: MRS.MRIDULA BHATKAR, J.
DATE: AUGUST 28, 2014
Citation2014 ALLMR(cri)3793 Bom
This appeal is directed against the judgment and order dated
5.1.1999 and 9th Additional Sessions Judge, Pune, thereby convicting the
appellant for the offences punishable under section 498A of the Indian
Penal Code for a period of 2 years and payment of fine of Rs.1,000/-, i/d
to suffer R.I. for 2 months and also for offence under section 306 of the
Indian Penal Code and directed to suffer R.I. for 5 years and payment of
fine of Rs.2,000/- i/d. R.I. for 2 months.
2.
It is the case of the prosecution that the deceased Ranjana was the
daughter of the complainant, namely, Maruti Hari Waidande, from village
Jam, District Satara. She got married with the appellant in 1982. The
incident of suicide took place on 22.5.1992.
After marriage, Ranjana
started residing with her husband. However, she was ill treated as she
was not given food to eat and clothes to wear. She used to complain to
her father about the ill-treatment at the hands of the appellant. She was
abandoned by the appellant who told her that he did not like her and he
expressed that he did not want to cohabit with her. Then she was sent to
her father. Thereafter, she filed a maintainance application under section
125 of the Criminal Procedure Code in 1985.
In that application, the
appellant appeared and agreed before the Court that he would behave
harass her.
Nearly for 10 months, the case was pending before the
Ranjana thereafter was also not given good treatment by the
JMFC.
properly with her and then he brought her back. However, he continued to
appellant husband. On the contrary, he got married with other woman and
he started residing with the second wife at Kasarwadi and he kept
Ranjana at Bopoli. Ranjana and the appellant had no issue out of their
marriage.
Occasionally, the appellant used to visit Ranjana under the
influence of alcohol and used to beat her. He was also instigated by his
parents. The complainant Maruti tried to convince the appellant and his
relatives time and again. However, there was no improvement in the
treatment given to her. Once when the complainant came to meet
Ranjana, he was refused entry in the house and he could not meet her.
Then he went back. On 22.5.1992, the complainant received information
from his relative that Ranjana was dead as she was found in burnt
condition in the house of the accused and thereafter she was taken to the
He
hospital. She succumbed to the injuries on the same night.
immediately rushed to the Sassoon hospital. However, Ranjana was dead.
He took custody of the body of Ranjana and performed the last rites on
her body and thereafter on 24.5.1992, he lodged the FIR (exhibit 17) with
the Yamuna Nagar police chowky, which was registered at C.R. No.195 of
They recorded statements of the neighbours and the
panchanama.
1992 against the appellant and his relatives. The police prepared the spot
accused was arrested on 25.5.1992 and other relatives were also
arrested. After completion of the investigation, police filed chargesheet.
The case was committed to the Court of Sessions. Charge was framed
against Shivaji Bhau Dubale, the brother in law of the deceased and
Manohar Bhau Dubale, the husband of the deceased.
Shivaji was
acquitted from all the charges. However, the appellant was convicted.
Hence, this appeal.
3.
The learned Counsel for the appellant has submitted that the
ingredients under section 498A are not proved. He submitted that on the
point of cruelty, the prosecution tendered scanty evidence of PW1 Maruti
Waidande.
The learned Counsel submitted that the evidence is not
sufficient to hold the appellant guilty under section 498A so also under
section 306 of the Indian Penal Code. He raised a number of points in
respect of credibility of the evidence of PW1.
He submitted that the
learned Judge has relied on the postcard dated 7.4.1992, which was
written by Ranjana to the complainant.
marked exhibit 14, should not have been relied. This letter is allegedly
However, only one stamp of
Satara is seen and other postal stamp of Pune is not seen and, therefore,
it is doubtful whether this letter was written by Ranjana or not.
The
truthfulness of the said letter is vehemently challenged by the defence.
He further submitted that there are no allegations of assault against the
appellant so also there are no immediate incident of cruelty. The marriage
had taken place 10 years prior to her death and though the appellant had
performed second marriage, the deceased did not complain about the
same under section 494 immediately after the said marriage. He further
submitted that performing second marriage is not cruelty under section
498A of the Indian Penal Code. In support of his submission, he relied on
the judgment in the case of Manjuram Kalita vs. State of Assam (2009) 13 SCC 760 . He
further submitted that there should have been specific charges or
allegations of cruelty and in the absence of such charges against the
appellant/accused, ground of cruelty is not proved.
There are no
allegation of demand of dowry. The allegations are limited to not giving
food to eat and not giving clothes to wear. He submitted that the appellant
himself was a poor person and therefore, under such circumstances, this
cannot be considered as cruelty in true sense.
In support of his
submissions, he relied on Balram & anr. vs State of Madhya Pradesh 2. He
further argued that the neighbours PW3 Ramesh Sakharam Umap, PW4
Mehboob Shaikh Vali Ahmed did not support the prosecution and thus, the
case of the prosecution, stood on a weak evidence of the complainant,
and is not established beyond reasonable doubt. He further submitted
that there is no evidence on the point of section 306 and the learned
Sessions Judge has committed an error inholding the appellant guilty
under the said count. He submitted that the appellant is a poor person
and he is innocent and therefore to be acquitted from all the charges.
4.
Learned Prosecutor has opposed the appeal. She has argued that
the appellant was continuously harassing the deceased.
performed a second marriage.
treating the deceased properly.
This by itself is cruelty.
He had
He was not
Ranjana was suffering mentally and
physically and, therefore, she wrote a letter, marked exhibit 14. she relied
on the said letter; read over the said letter and also relevant portions of the
appreciation of evidence in the impugned judgment of the learned
Sessions Judge.
She submitted that the judgment of the learned
Sessions Judge is to be maintained.
2 1999 Cr.L.J. 3944
5.
The prosecution in all examined 5 witnesses.
PW3 Ramesh
Sakharam Umap and PW4 Mehboob Shaikh Vali Ahmed, the neighbours,
did not support the case of the prosecution. Thus, the case mainly stands
on the evidence of Maruti Waidande, the complainant – father. Thus, on
the point of ocular evidence, the testimony of Maruti is only available to
the prosecution. Maruti had stated that his daughter Ranjana used to tell
him that she was harassed by the appellant. He stated that for the first
few years, there was no complaint but thereafter she was ill treated by the
appellant. He deposed that she was not given proper food and clothes.
He mentioned that he had received letters about it from Ranjana. When
he had visited her, she found that her condition was very bad.
The
appellant had abandoned her and asked the complainant to keep Ranjana
with him. However, he did not come to take her back though there was a
request by the complainant to take her back, the appellant informed them
Thus, it appears that
that he wanted to perform second marriage.
Ranjana filed application for maintainance in the Court at Waduj which
was pending for 10 months. Then, he took her back and he was having
two wives. With one wife he was living at Kasarwadi and with Ranjana at
Bopoli. He stated that he used to come to meet her some times and was
trying to convince her. It is true that in the entire deposition, Maruti has
not mentioned that the appellant used to beat her. He did not mention
anything about the demand of dowry or money by the appellant. However,
he was specific that she was not given food and clothes to wear. So also
he wanted to abandon her because he was staying with the second wife.
The learned Counsel also submitted that the deceased did not lodge any
complaint of bigamy against the appellant immediately when she came to
know that the appellant had performed second marriage.
The fact of
second marriage was admitted by the appellant when he was asked
question under section 313 of the Criminal Procedure Code. The answers
given by the accused to the questions put under section 313, cannot be
used as evidence. But his answers can definitely be relied on to verify the
truthfulness of the case of the prosecution. The evidence of PW1 could
not be assailed in the cross-examination. In the cross-examination also,
he maintained that Ranjana was ill-treated by the appellant. There was
insistence that she should give her consent in writing for the second
marriage. Thus, cruelty which can be gathered from the evidence of the
complainant is basically was of not providing food to eat and clothes to
wear. The fact of second marriage though considered to be accepted by
Ranjana, it does not mean that she had condoned all the ill treatment
given to her by her husband due to second marriage. This shows the fact
that Ranjana was unwanted and this circumstance corroborates the woes
of Ranjana that she was not only neglected by the husband but she was
not given food and clothes. Undoubtedly, keeping a person starving and
not giving her clothes to wear, amounts to cruelty.
Besides this oral evidence of the complainant, the prosecution has
6.
relied on documentary evidence, which is a letter received by the
complainant from Ranjana dated 7.4.1992 (exhibit 14). The defence has
pointed out that the complainant has given admission in the cross-
examination that he had received in all three letters from Ranjana and he
had handed over all of them to the appellant. However, other two letters
were not produced by the police but only one letter is produced. The letter
does not show the second postal stamp that it was sent from Satara. It
was also submitted that the complainant was illiterate and he has put a
thumb impression at the bottom of the FIR i.e., exhibit 17 and, therefore, it
is questioned as to how could he read and how that letter was sent to him.
The submissions of the learned Counsel cannot be appreciated as the
letter shows clearly one postal stamp and the date on the letter is
7.4.1992. The complainant has identified the hand-writing of Ranjana and
has stated that Ranjana was literate. The person to whom the letter is
sent may be illiterate. However, that person can get the same read from
other person. The postal stamp of Satara is seen. However, the other
stamp is not visible.
documentary evidence.
This cannot be the only ground to discard this
The letter discloses that she had blamed her
father for fixing her marriage with the appellant, who is from a well to do
family, however, it was of no use.
She tolerated everything patiently.
Further, it was not possible for her to live and bear further. Even if she
would have been married to a beggar, she could have got food to eat.
However, she does not get any food to eat peacefully. She asked him to
come to visit her.
7.
The complainant is an illiterate person, who spent his life in the rural
area throughout.
It cannot be expected from him to give elaborate
He being illiterate definitely has
evidence on each and every count.
limitations on his expression and it is rightly appreciated by the trial Judge.
The trial Judge is also correct in relying on the said letter i.e. exhibit 14.
on 22.5.1992.
The letter was written on 7.4.1992 and thereafter the incident took place
The submissions of the learned Counsel that the
prosecution could not prove the immediate incidents or immediate cruelty,
which really drove her to commit suicide, cannot be accepted. The letter
is of 7.4.1992 and the incident took place immediately within 11⁄2 months
from this letter. The complainant had deposed that there was continuous
torture and ill treatment to her and in the letter she had expressed that the
things were unbearable to her.
Though accused has also come from
economically lower strata, the economical condition of the father of
Ranjana was worse than him so Ranjana has stated that he is placed
better economically, which is to be read comparatively. This clearly shows
that Ranjana was totally dependent on her husband. Her husband was
having a second wife. Ranjana was not having issue.
In a case of cruelty or suicide by the wife, evidence of the
8.
neighbours is always very important. Rather, the neighbours can throw
light on the correct relationship of the husband and wife and what exactly
had happened at the time of the incidents. Physical availability of the
neighbours is natural and many times, they have better opportunity to
observe the relationship of the husband and wife. In the present case,
PW3 and PW4, the neighbours, though did not support the prosecution,
both the witnesses were cross-examined by the learned Prosecutor and
the learned Prosecutor was successful in bringing the material omissions
in the evidence of both the witnesses. These omissions were put to the
Investigating Officer Mr.Pagare (PW5) and in the evidence of PW3
Ramesh, which are marked exhibits 23 and 24 and the omission in the
evidence of PW4 Mehboob is marked exhibit 25. these omissions are
very material. The witness may turn hostile. However, if the omissions are
brought on record and they are proved through the Investigating Officer
then they are to be read in the evidence and these omissions do carry
substantial evidentiary value.
In order to appreciate these omissions,
definitely, the Court has to consider the other prevailing circumstances and
other corroborative evidence. Such omissions cannot be given weightage
in isolation. It is to be considered that the neighbours who stayed in the
same locality may not support the prosecution with a view that their
relations should not get spoiled with the accused as he is a person in
contact and therefore they may not support the prosecution. Keeping this
Exhibit 23 discloses that PW3 Ramesh Umap has stated before the
9.
fact in mind, these omissions are appreciated.
police that the applicant/accused wanted to go to drink liquor. However,
the deceased Ranjana did not allow him to go and when they entered their
house, they closed the door from inside. Exhibit 24 discloses that the
witness has stated before the police that with the help of Mehboob (PW4)
and other the said door was broken up and at that time, the appellant
came out and he went away and then an ambulance was called. In his
examination-in-chief, he has stated that around 5pm to 5.30pm, when he
and Pagnis were sitting on front side of the house, he saw smoke coming
out of the house of Manohar. He went there and the door of the house
was closed. In the examination in chief, he has stated that thereafter
when he saw, the house was closed and he left the spot. However, in his
cross-examination, the relevant portion is brought on record which shows
that the witness did not leave the spot but with the help of PW5 and other
person broke open the door of the house and as the smoke was coming
out and at that time, the appellant came out of the house and went away.
PW4 Mehboob in examination in chief has stated that he was at the
common water tap and when he was informed that the wife of Manohar
was ablaze, he found the door was closed. He opened the door and went
inside and found that Manohar's wife was lying in burnt condition. He has
stated in the examination in chief of Manohar was not present there. The
learned APP has declared him hostile and cross-examined him. In the
cross-examination, a portion marked 'A' was brought on record where he
has stated that when they broke open the lock, Manohar was found inside
and the said portion was proved through the Investigating Officer PW5,
which is marked exhibit 25. The behaviour of both the witnesses who
were residing in the same vicinity as per exhibits 23, 25 and 25 is found
not only natural but obvious in response to the situation of seeing smoke
from the house of the appellant. They broke open the lock as there was
fire inside. In exhibit 23, it is mentioned that Ranjana and her husband
Manohar went inside the room and they locked the door from inside.
Thus, immediately after some time, smoke was seen and the door was
locked inside. So they broke open the lock. Thus, the omitted portions of
both the witnesses are consistent and corroborate each other.
These
exhibits establish the fact that Manohar did not open the door himself
though he was inside. He after opening the door, left the place. This
clearly shows that the appellant though was present at the time of the
incident, did not help the complainant to extinguish the fire.
10.
It is to be noted that the prosecution did not bring any evidence to
show what has happened inside. As the room was closed, such evidence
was not available to the prosecution. Ranjana was burnt extensively and
when she was shifted to hospital, she was not in a position to give her
dying declaration. She succumbed to the injuries on the same day in the
However, the
was a doubt whether it was homicidal or suicidal.
evening. Thus, the death of Ranjana was not at all accidental but there
prosecution has come out with a case that it was a suicidal death as
Ranjana went inside and immediately she was found burnt and she died.
There is no such evidence collected by the prosecution that Manohar
himself poured kerosene on her and it appears therefore, that the
appellant was not booked for homicidal death of Ranjana. However, to
prove charge under section 306, it is necessary for the prosecution to
bring evidence on record to establish the ingredients of abetment which
are defined under section 107 of the Indian Penal Code. Section 107 is as
under:
11.
107. Abetment of a thing. - A person abets the doing of a
thing, who -
Firstly. - Instigates any person to do that thing; or
Secondly. - Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if an act
or illegal omission takes place in pursuance of that conspiracy,
and in order to the doing of that thing; or
Thirdly. - Intentionally aids, by any act or illegal omission, the
doing of that thing.
Explanation 1. - A person who, by willful misrepresentation, or
by willful concealment of a material fact which he is bound to
disclose, voluntarily causes or procures, or attempts to cause
or procure, a thing to be done, is said to instigate the doing of
that thing.
In the present case, there was a fight between the husband and the
wife on the ground of drinking liquor, which was the immediate cause of
suicide. However, there was a history of continuous harassment which
started in the mind of the deceased. When the deceased was burnt, it is
pertinent to note that the appellant did not help to extinguish the fire. It is
proved by the prosecution that when she was burning actually, he was
very much in the said house. He allowed her to burn. If he would have
tried to rescue her, then, he would have suffered some burn injuries to his
hands or body. On the contrary, when he was inside the room, he did not
open the door and the condition of the deceased became worse. The
door was opened by the witnesses by PW3 and PW4. This is a glaring
example of the abetment to commit suicide. He really drove her to that
verge that the lady had taken the decision to die. Thus, the immediate
post conduct of the appellant manifests his intention that the deceased
should die. Moreover, the father of the deceased in his evidence has
stated that he went to Sassoon hospital and there, he claimed the body of
his daughter and then performed the last rites. The appellant though was
the husband of the deceased did not bother to either inform the father of
the deceased that his wife had burnt herself nor did he he show any
concern of her funeral and last rites. This conduct also confirms that the
appellant was absolutely unconcerned. Thus, the case of the prosecution
is proved not only on the basis of the oral evidence of the complainant but
also on the corroborative testimony of exhibits 23, 24 and 25 as also the
documentary evidence at exhibit 14 and other circumstantial evidence.
Thus, the learned trial Judge has rightly convicted the appellant under the
charges of committing offence under sections 498A and 306 of the Indian
12.
Penal Code.
On the point of quantum, the learned defence Counsel submitted
that the appellant is married and has children.
He submitted that the
offence had taken place in 1992 i.e., prior to 22 years from today. He
submitted that the appellant was on bail throughout the trial and pendency
of the appeal. He has settled down in his life and therefore prayed for
13.
leniency to be shown. Learned Prosecutor has opposed the application.
It is true that there is an inordinate delay in deciding this appeal as it
was pending before the High Court for 15 years. However, the offences
under sections 498A and 306 of the Indian Penal Code are proved against
the appellant beyond reasonable doubt.
Under such circumstances,
considering the gravity of the offence, no leniency on the point of quantum
can be shown.
I hereby confirm the conviction so also the sentence
awarded by the learned Sessions Judge.
14.
Appeal is thus dismissed.
(MRS.MRIDULA BHATKAR, J.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Manohar Bhau Dubale
Vs.
The State of Maharashtra
CORAM: MRS.MRIDULA BHATKAR, J.
DATE: AUGUST 28, 2014
Citation2014 ALLMR(cri)3793 Bom
This appeal is directed against the judgment and order dated
5.1.1999 and 9th Additional Sessions Judge, Pune, thereby convicting the
appellant for the offences punishable under section 498A of the Indian
Penal Code for a period of 2 years and payment of fine of Rs.1,000/-, i/d
to suffer R.I. for 2 months and also for offence under section 306 of the
Indian Penal Code and directed to suffer R.I. for 5 years and payment of
fine of Rs.2,000/- i/d. R.I. for 2 months.
2.
It is the case of the prosecution that the deceased Ranjana was the
daughter of the complainant, namely, Maruti Hari Waidande, from village
Jam, District Satara. She got married with the appellant in 1982. The
incident of suicide took place on 22.5.1992.
After marriage, Ranjana
started residing with her husband. However, she was ill treated as she
was not given food to eat and clothes to wear. She used to complain to
her father about the ill-treatment at the hands of the appellant. She was
abandoned by the appellant who told her that he did not like her and he
expressed that he did not want to cohabit with her. Then she was sent to
her father. Thereafter, she filed a maintainance application under section
125 of the Criminal Procedure Code in 1985.
In that application, the
appellant appeared and agreed before the Court that he would behave
harass her.
Nearly for 10 months, the case was pending before the
Ranjana thereafter was also not given good treatment by the
JMFC.
properly with her and then he brought her back. However, he continued to
appellant husband. On the contrary, he got married with other woman and
he started residing with the second wife at Kasarwadi and he kept
Ranjana at Bopoli. Ranjana and the appellant had no issue out of their
marriage.
Occasionally, the appellant used to visit Ranjana under the
influence of alcohol and used to beat her. He was also instigated by his
parents. The complainant Maruti tried to convince the appellant and his
relatives time and again. However, there was no improvement in the
treatment given to her. Once when the complainant came to meet
Ranjana, he was refused entry in the house and he could not meet her.
Then he went back. On 22.5.1992, the complainant received information
from his relative that Ranjana was dead as she was found in burnt
condition in the house of the accused and thereafter she was taken to the
He
hospital. She succumbed to the injuries on the same night.
immediately rushed to the Sassoon hospital. However, Ranjana was dead.
He took custody of the body of Ranjana and performed the last rites on
her body and thereafter on 24.5.1992, he lodged the FIR (exhibit 17) with
the Yamuna Nagar police chowky, which was registered at C.R. No.195 of
They recorded statements of the neighbours and the
panchanama.
1992 against the appellant and his relatives. The police prepared the spot
accused was arrested on 25.5.1992 and other relatives were also
arrested. After completion of the investigation, police filed chargesheet.
The case was committed to the Court of Sessions. Charge was framed
against Shivaji Bhau Dubale, the brother in law of the deceased and
Manohar Bhau Dubale, the husband of the deceased.
Shivaji was
acquitted from all the charges. However, the appellant was convicted.
Hence, this appeal.
3.
The learned Counsel for the appellant has submitted that the
ingredients under section 498A are not proved. He submitted that on the
point of cruelty, the prosecution tendered scanty evidence of PW1 Maruti
Waidande.
The learned Counsel submitted that the evidence is not
sufficient to hold the appellant guilty under section 498A so also under
section 306 of the Indian Penal Code. He raised a number of points in
respect of credibility of the evidence of PW1.
He submitted that the
learned Judge has relied on the postcard dated 7.4.1992, which was
written by Ranjana to the complainant.
marked exhibit 14, should not have been relied. This letter is allegedly
However, only one stamp of
Satara is seen and other postal stamp of Pune is not seen and, therefore,
it is doubtful whether this letter was written by Ranjana or not.
The
truthfulness of the said letter is vehemently challenged by the defence.
He further submitted that there are no allegations of assault against the
appellant so also there are no immediate incident of cruelty. The marriage
had taken place 10 years prior to her death and though the appellant had
performed second marriage, the deceased did not complain about the
same under section 494 immediately after the said marriage. He further
submitted that performing second marriage is not cruelty under section
498A of the Indian Penal Code. In support of his submission, he relied on
the judgment in the case of Manjuram Kalita vs. State of Assam (2009) 13 SCC 760 . He
further submitted that there should have been specific charges or
allegations of cruelty and in the absence of such charges against the
appellant/accused, ground of cruelty is not proved.
There are no
allegation of demand of dowry. The allegations are limited to not giving
food to eat and not giving clothes to wear. He submitted that the appellant
himself was a poor person and therefore, under such circumstances, this
cannot be considered as cruelty in true sense.
In support of his
submissions, he relied on Balram & anr. vs State of Madhya Pradesh 2. He
further argued that the neighbours PW3 Ramesh Sakharam Umap, PW4
Mehboob Shaikh Vali Ahmed did not support the prosecution and thus, the
case of the prosecution, stood on a weak evidence of the complainant,
and is not established beyond reasonable doubt. He further submitted
that there is no evidence on the point of section 306 and the learned
Sessions Judge has committed an error inholding the appellant guilty
under the said count. He submitted that the appellant is a poor person
and he is innocent and therefore to be acquitted from all the charges.
4.
Learned Prosecutor has opposed the appeal. She has argued that
the appellant was continuously harassing the deceased.
performed a second marriage.
treating the deceased properly.
This by itself is cruelty.
He had
He was not
Ranjana was suffering mentally and
physically and, therefore, she wrote a letter, marked exhibit 14. she relied
on the said letter; read over the said letter and also relevant portions of the
appreciation of evidence in the impugned judgment of the learned
Sessions Judge.
She submitted that the judgment of the learned
Sessions Judge is to be maintained.
2 1999 Cr.L.J. 3944
5.
The prosecution in all examined 5 witnesses.
PW3 Ramesh
Sakharam Umap and PW4 Mehboob Shaikh Vali Ahmed, the neighbours,
did not support the case of the prosecution. Thus, the case mainly stands
on the evidence of Maruti Waidande, the complainant – father. Thus, on
the point of ocular evidence, the testimony of Maruti is only available to
the prosecution. Maruti had stated that his daughter Ranjana used to tell
him that she was harassed by the appellant. He stated that for the first
few years, there was no complaint but thereafter she was ill treated by the
appellant. He deposed that she was not given proper food and clothes.
He mentioned that he had received letters about it from Ranjana. When
he had visited her, she found that her condition was very bad.
The
appellant had abandoned her and asked the complainant to keep Ranjana
with him. However, he did not come to take her back though there was a
request by the complainant to take her back, the appellant informed them
Thus, it appears that
that he wanted to perform second marriage.
Ranjana filed application for maintainance in the Court at Waduj which
was pending for 10 months. Then, he took her back and he was having
two wives. With one wife he was living at Kasarwadi and with Ranjana at
Bopoli. He stated that he used to come to meet her some times and was
trying to convince her. It is true that in the entire deposition, Maruti has
not mentioned that the appellant used to beat her. He did not mention
anything about the demand of dowry or money by the appellant. However,
he was specific that she was not given food and clothes to wear. So also
he wanted to abandon her because he was staying with the second wife.
The learned Counsel also submitted that the deceased did not lodge any
complaint of bigamy against the appellant immediately when she came to
know that the appellant had performed second marriage.
The fact of
second marriage was admitted by the appellant when he was asked
question under section 313 of the Criminal Procedure Code. The answers
given by the accused to the questions put under section 313, cannot be
used as evidence. But his answers can definitely be relied on to verify the
truthfulness of the case of the prosecution. The evidence of PW1 could
not be assailed in the cross-examination. In the cross-examination also,
he maintained that Ranjana was ill-treated by the appellant. There was
insistence that she should give her consent in writing for the second
marriage. Thus, cruelty which can be gathered from the evidence of the
complainant is basically was of not providing food to eat and clothes to
wear. The fact of second marriage though considered to be accepted by
Ranjana, it does not mean that she had condoned all the ill treatment
given to her by her husband due to second marriage. This shows the fact
that Ranjana was unwanted and this circumstance corroborates the woes
of Ranjana that she was not only neglected by the husband but she was
not given food and clothes. Undoubtedly, keeping a person starving and
not giving her clothes to wear, amounts to cruelty.
Besides this oral evidence of the complainant, the prosecution has
6.
relied on documentary evidence, which is a letter received by the
complainant from Ranjana dated 7.4.1992 (exhibit 14). The defence has
pointed out that the complainant has given admission in the cross-
examination that he had received in all three letters from Ranjana and he
had handed over all of them to the appellant. However, other two letters
were not produced by the police but only one letter is produced. The letter
does not show the second postal stamp that it was sent from Satara. It
was also submitted that the complainant was illiterate and he has put a
thumb impression at the bottom of the FIR i.e., exhibit 17 and, therefore, it
is questioned as to how could he read and how that letter was sent to him.
The submissions of the learned Counsel cannot be appreciated as the
letter shows clearly one postal stamp and the date on the letter is
7.4.1992. The complainant has identified the hand-writing of Ranjana and
has stated that Ranjana was literate. The person to whom the letter is
sent may be illiterate. However, that person can get the same read from
other person. The postal stamp of Satara is seen. However, the other
stamp is not visible.
documentary evidence.
This cannot be the only ground to discard this
The letter discloses that she had blamed her
father for fixing her marriage with the appellant, who is from a well to do
family, however, it was of no use.
She tolerated everything patiently.
Further, it was not possible for her to live and bear further. Even if she
would have been married to a beggar, she could have got food to eat.
However, she does not get any food to eat peacefully. She asked him to
come to visit her.
7.
The complainant is an illiterate person, who spent his life in the rural
area throughout.
It cannot be expected from him to give elaborate
He being illiterate definitely has
evidence on each and every count.
limitations on his expression and it is rightly appreciated by the trial Judge.
The trial Judge is also correct in relying on the said letter i.e. exhibit 14.
on 22.5.1992.
The letter was written on 7.4.1992 and thereafter the incident took place
The submissions of the learned Counsel that the
prosecution could not prove the immediate incidents or immediate cruelty,
which really drove her to commit suicide, cannot be accepted. The letter
is of 7.4.1992 and the incident took place immediately within 11⁄2 months
from this letter. The complainant had deposed that there was continuous
torture and ill treatment to her and in the letter she had expressed that the
things were unbearable to her.
Though accused has also come from
economically lower strata, the economical condition of the father of
Ranjana was worse than him so Ranjana has stated that he is placed
better economically, which is to be read comparatively. This clearly shows
that Ranjana was totally dependent on her husband. Her husband was
having a second wife. Ranjana was not having issue.
In a case of cruelty or suicide by the wife, evidence of the
8.
neighbours is always very important. Rather, the neighbours can throw
light on the correct relationship of the husband and wife and what exactly
had happened at the time of the incidents. Physical availability of the
neighbours is natural and many times, they have better opportunity to
observe the relationship of the husband and wife. In the present case,
PW3 and PW4, the neighbours, though did not support the prosecution,
both the witnesses were cross-examined by the learned Prosecutor and
the learned Prosecutor was successful in bringing the material omissions
in the evidence of both the witnesses. These omissions were put to the
Investigating Officer Mr.Pagare (PW5) and in the evidence of PW3
Ramesh, which are marked exhibits 23 and 24 and the omission in the
evidence of PW4 Mehboob is marked exhibit 25. these omissions are
very material. The witness may turn hostile. However, if the omissions are
brought on record and they are proved through the Investigating Officer
then they are to be read in the evidence and these omissions do carry
substantial evidentiary value.
In order to appreciate these omissions,
definitely, the Court has to consider the other prevailing circumstances and
other corroborative evidence. Such omissions cannot be given weightage
in isolation. It is to be considered that the neighbours who stayed in the
same locality may not support the prosecution with a view that their
relations should not get spoiled with the accused as he is a person in
contact and therefore they may not support the prosecution. Keeping this
Exhibit 23 discloses that PW3 Ramesh Umap has stated before the
9.
fact in mind, these omissions are appreciated.
police that the applicant/accused wanted to go to drink liquor. However,
the deceased Ranjana did not allow him to go and when they entered their
house, they closed the door from inside. Exhibit 24 discloses that the
witness has stated before the police that with the help of Mehboob (PW4)
and other the said door was broken up and at that time, the appellant
came out and he went away and then an ambulance was called. In his
examination-in-chief, he has stated that around 5pm to 5.30pm, when he
and Pagnis were sitting on front side of the house, he saw smoke coming
out of the house of Manohar. He went there and the door of the house
was closed. In the examination in chief, he has stated that thereafter
when he saw, the house was closed and he left the spot. However, in his
cross-examination, the relevant portion is brought on record which shows
that the witness did not leave the spot but with the help of PW5 and other
person broke open the door of the house and as the smoke was coming
out and at that time, the appellant came out of the house and went away.
PW4 Mehboob in examination in chief has stated that he was at the
common water tap and when he was informed that the wife of Manohar
was ablaze, he found the door was closed. He opened the door and went
inside and found that Manohar's wife was lying in burnt condition. He has
stated in the examination in chief of Manohar was not present there. The
learned APP has declared him hostile and cross-examined him. In the
cross-examination, a portion marked 'A' was brought on record where he
has stated that when they broke open the lock, Manohar was found inside
and the said portion was proved through the Investigating Officer PW5,
which is marked exhibit 25. The behaviour of both the witnesses who
were residing in the same vicinity as per exhibits 23, 25 and 25 is found
not only natural but obvious in response to the situation of seeing smoke
from the house of the appellant. They broke open the lock as there was
fire inside. In exhibit 23, it is mentioned that Ranjana and her husband
Manohar went inside the room and they locked the door from inside.
Thus, immediately after some time, smoke was seen and the door was
locked inside. So they broke open the lock. Thus, the omitted portions of
both the witnesses are consistent and corroborate each other.
These
exhibits establish the fact that Manohar did not open the door himself
though he was inside. He after opening the door, left the place. This
clearly shows that the appellant though was present at the time of the
incident, did not help the complainant to extinguish the fire.
10.
It is to be noted that the prosecution did not bring any evidence to
show what has happened inside. As the room was closed, such evidence
was not available to the prosecution. Ranjana was burnt extensively and
when she was shifted to hospital, she was not in a position to give her
dying declaration. She succumbed to the injuries on the same day in the
However, the
was a doubt whether it was homicidal or suicidal.
evening. Thus, the death of Ranjana was not at all accidental but there
prosecution has come out with a case that it was a suicidal death as
Ranjana went inside and immediately she was found burnt and she died.
There is no such evidence collected by the prosecution that Manohar
himself poured kerosene on her and it appears therefore, that the
appellant was not booked for homicidal death of Ranjana. However, to
prove charge under section 306, it is necessary for the prosecution to
bring evidence on record to establish the ingredients of abetment which
are defined under section 107 of the Indian Penal Code. Section 107 is as
under:
11.
107. Abetment of a thing. - A person abets the doing of a
thing, who -
Firstly. - Instigates any person to do that thing; or
Secondly. - Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if an act
or illegal omission takes place in pursuance of that conspiracy,
and in order to the doing of that thing; or
Thirdly. - Intentionally aids, by any act or illegal omission, the
doing of that thing.
Explanation 1. - A person who, by willful misrepresentation, or
by willful concealment of a material fact which he is bound to
disclose, voluntarily causes or procures, or attempts to cause
or procure, a thing to be done, is said to instigate the doing of
that thing.
In the present case, there was a fight between the husband and the
wife on the ground of drinking liquor, which was the immediate cause of
suicide. However, there was a history of continuous harassment which
started in the mind of the deceased. When the deceased was burnt, it is
pertinent to note that the appellant did not help to extinguish the fire. It is
proved by the prosecution that when she was burning actually, he was
very much in the said house. He allowed her to burn. If he would have
tried to rescue her, then, he would have suffered some burn injuries to his
hands or body. On the contrary, when he was inside the room, he did not
open the door and the condition of the deceased became worse. The
door was opened by the witnesses by PW3 and PW4. This is a glaring
example of the abetment to commit suicide. He really drove her to that
verge that the lady had taken the decision to die. Thus, the immediate
post conduct of the appellant manifests his intention that the deceased
should die. Moreover, the father of the deceased in his evidence has
stated that he went to Sassoon hospital and there, he claimed the body of
his daughter and then performed the last rites. The appellant though was
the husband of the deceased did not bother to either inform the father of
the deceased that his wife had burnt herself nor did he he show any
concern of her funeral and last rites. This conduct also confirms that the
appellant was absolutely unconcerned. Thus, the case of the prosecution
is proved not only on the basis of the oral evidence of the complainant but
also on the corroborative testimony of exhibits 23, 24 and 25 as also the
documentary evidence at exhibit 14 and other circumstantial evidence.
Thus, the learned trial Judge has rightly convicted the appellant under the
charges of committing offence under sections 498A and 306 of the Indian
12.
Penal Code.
On the point of quantum, the learned defence Counsel submitted
that the appellant is married and has children.
He submitted that the
offence had taken place in 1992 i.e., prior to 22 years from today. He
submitted that the appellant was on bail throughout the trial and pendency
of the appeal. He has settled down in his life and therefore prayed for
13.
leniency to be shown. Learned Prosecutor has opposed the application.
It is true that there is an inordinate delay in deciding this appeal as it
was pending before the High Court for 15 years. However, the offences
under sections 498A and 306 of the Indian Penal Code are proved against
the appellant beyond reasonable doubt.
Under such circumstances,
considering the gravity of the offence, no leniency on the point of quantum
can be shown.
I hereby confirm the conviction so also the sentence
awarded by the learned Sessions Judge.
14.
Appeal is thus dismissed.
(MRS.MRIDULA BHATKAR, J.)
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