MADHUKAR KAUTIK BAVISKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Petitioners have impugned order dated 21st October, 1995 passed by the learned VI Assistant Sessions judge, Jalgaon convicting the petitioners for offence punishable under sections 306 and 498-A read with section 34 of the indian Penal Code and sentencing them to suffer RI for two years on each count and to pay a fine of Rs. 500/- in default, to suffer si for six months on each count. The substantive sentences are directed to be run concurrently; and the order of the Sessions judge, Jalgaon dated 21-11-1998 confirming the order of conviction and sentence passed by the Sessions Judge, Jalgaon, in the present petition.

(2.) Briefly stated, the facts in nutshell are, that petitioner No. 1 Madhukar married Mangala (deceased) on 10-3-1983 at ambe Wadgaon Tq. Pachora Dist. Jalgaon. After marriage, deceased was nicely treated for about 2-3 years. However, as she did not conceive a child, ill-treatment commenced after expiry of 2-3 years. Mangala used to visit her parental house on the auspicious occasions of "dussera", "diwali" or such other occasions. On these occasions, petitioner No. 1 never used to go to the house of his father in law for fetching mangala and, as such, her brother madhavarao used to take her back to her matrimonial house. As usual, deceased had been to her parental house in the year 1990 (the year is wrongly mentioned by madhavrao as 1991 because deceased mangala died on 31st July. 1991). On that occasion, petitioners and other, members of their family had asked Mangala to bring one tola of gold, tape recorder, radio, bicycle etc. As usual, none came to take her back. Thus, her brother, Madhavrao took her back to the matrimonial house. However, as the articles were not brought, petitioners refused to allow Mangala to stay at their house. As such, Madhavrao had to take her to the house of Dattu (P. W. 2) at ambe Wadgaon. From there, he took his sister to their house at Pune. After waiting for some time, Mangala, initiated proceedings on 2-1-1990 for maintenance, being maintenance Petition No. 1/1990 in the court of learned Judicial Magistrate, F. C. Pune, alleging ill-treatment on the ground of her infertility and not fulfilling demands for bringing gold and other household articles. It appears that about 2-3 months after filing of maintenance petition, there was an amicable settlement between the parties. As a result, compromise pursis dated 7-3-1991 was produced before the Court and consequently proceedings for maintenance were withdrawn. Three four months thereafter, i. e. on 31st July, 1991 in the morning, petitioner No. 2 subjected Mangala to cruelty in as much as she abused her by hinting at Mangala's infertility. This led to quarrel between the two. At that time, no other members of the family were present. After some time petitioner No. 1 returned to his house. Petitioner No. 2 informed him about the quarrel. Petitioner No. 1, was infuriated. He sought explanation from mangala and dealt blows on her chest. As the torture became unbearable, Mangala consumed insecticide rogor. On account of the consumption of poison, she started losing her consciousness. At that time P. W. 1 Dr. Bhaskar Patil of Nachankhede Tq. Jamner, gave her first aid. Deceased was, then, taken to Rural Hospital at Pahur. While she was under treatment ASI Sonar (P. W. 8) recorded her dying declaration in the presence of Dr. Wankhede (P. W. 5). Deceased disclosed that she was being subjected to cruelty on account of infertility. On the day of occurrence, she was insulted by her mother-in-law and assaulted by her husband, therefore, she committed suicide. This dying declaration is treated as FIR and the offence came to be registered under section 498-A read with section 34 of the Indian Penal Code came to be registered against petitioners. Subsequently, kisan Dhondu Patil (P. W. 4) who is Special executive Magistrate, recorded her dying declaration (Exh. 36) , in which same facts were briefly repeated by the deceased. During the treatment, deceased expired. Therefore, section 306 of IPC was added to the list of penal sections. After completion of the investigation, charge-sheet came to be filed against the petitioners.

(3.) On conclusion of trial, learned VIth asst. Sessions Judge, Jalgaon found that petitioners did subject deceased Mangala to cruelty and thereby instigated her to commit suicide. In this view of the matter, the learned Judge convicted petitioners of the offence punishable under sections 306 and 498-A read with section 34 I. P. C. and sentenced them to suffer RI for 2 years on each count and to pay a fine of Rs. 500/-on each count in default, to suffer RI for six months. Sentences were directed to run concurrently.