MANOHAR BHAU DUBALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) 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. 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 maintenance 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 properly with her and then he brought her back. However, he continued to harass her. Nearly for 10 months, the case was pending before the JMFC. Ranjana thereafter was also not given good treatment by the 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 hospital. She succumbed to the injuries on the same night. He 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 1992 against the appellant and his relatives. The police prepared the spot panchanama. They recorded statements of the neighbours and the 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.

(2.) 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 PW 1 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 PW 1. He submitted that the learned Judge has relied on the postcard dated 7.4.1992, which was marked exhibit 14, should not have been relied. This letter is allegedly written by Ranjana to the complainant. 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, : 1999 Cr.L.J. 3944. He further argued that the neighbours PW 3 Ramesh Sakharam Umap, PW 4 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 in holding 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.

(3.) THE prosecution in all examined 5 witnesses. PW 3 Ramesh Sakharam Umap and PW 4 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 that he wanted to perform second marriage. Thus, it appears that Ranjana filed application for maintenance 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 PW 1 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.