SHRAWAN NATHU KANNUAR Vs. ANJANABAI SHRAWAN KANNUAR

JUDGEMENT

(1.) THIS case has chequerred history. The Respondent is the wife of the petitioner. She made an application dated 15-7-1977 being Application No. 56 of 1977 in the Malegaon Court for maintenance. The petitioner resisted that application and denied the allegations of neglect and maintenance of his wife. He also made an allegation that his wife had adultery relations with one Mahadeo Pira. That application was came to be allowed by the lower Court by awarding an amount of Rs. 50/-p. m. to the wife. However, the learned Magistrate at the first instance dismissed the application for maintenance on the ground that the petitioner did not prove that respondent married second wife or kept a mistress. The wife approached the Revisional Court by filing Criminal Revision Application No. 179 of 1986. By order dated 14-11-1986 the Additional Sessions Judge, Nasik set aside the order of the Magistrate and granted a maintenance of Rs. 50/- per month to the wife. This order of revisional authority has been challenged by the petitioner before this Court being Criminal Writ Petition No. 463/1983. This Court after examining the evidence, remanded the matter to the trial Court for specific purpose of giving an opportunity to the petitioner to prove his allegations that respondent is living in adultery. On remand the petitioner attempted to prove certain documents viz. Exh. 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 50, 51, 53 and 55. Out of these documents Exhs. 39 and 40 are relevant in this case. Exh. 39 is the complaint by Respondents father viz. Bhika Bhagu Patil to Police Station on 13-1-1979 stating that his daughter Anjanabai has illicit relations with Mahadu Pira and has eloped with him. Exh. 40 is report made by Police Patil to Sub-Inspector of Police stating that the Respondent was missing with Mahadu Pira and if they return to the village, there is a possibility of commotion and breach of peace in the village.

(2.) THE interesting part of this case is that these documents have been sought to be proved by the Petitioner through one Mrs. Jyostna Ramesh Rokde. What the Petitioner did was that he has called for all the documents from the concerned Police Station and tried to prove those documents through Mrs. Jyostna Ramesh Rokde, who identified the signature of the concerned police officer. She was not able to say anything about the contents of those documents. The learned Magistrate has dismissed the application of maintenance of the Respondent on the ground that on the basis of the aforementioned documents the allegation of adultery has been proved. Against, this order, Respondent filed revision before the Sessions Judge, Nasik as Criminal Revision Application No. 117/1986. The learned Judge has opined that the allegations of adultery levelled against the Respondent has not been proved. The learned Sessions Judge observed that Mrs. Rokde through whom those documents sought to be proved has no direct knowledge about the matter and her evidence does not improve the case of the petitioner any further for proving adultery. The learned Sessions Judge in his order stated that petitioner-wife was admitted to the Mahila Sudhargriha which is known as reception Centre at Nasik. She was sent on the allegation that she was having adulterous relationship with Mahadu Pira. The judgment of this Court specifically directed to prove this aspect in para 10, Now certainly, if such statement was duly proved by the person who recorded the same, it would have been taken into consideration. However, Mrs. Rokde cannot prove the statement which was recorded by P. S. I. Merely saying that the statements recorded by the police are produced and saying that these statements are signed by the P. S. I. cannot amount to proof of such allegation contained in the report. According to Revisional Court, as rightly observed, the file which is produced at Exh. 39 has thus wrongly been admitted in evidence by mere production. There is no valid proof of any of the statements recorded by the Police. In fact Mrs. Rokde does not know anything about this case. Mr. Jagdale who was predecessor of Mrs. Rokde is very much alive but not examined by the respondent. In short, the evidence of Mrs. Rokde is absolutely of no value to the respondent to prove that the statements recorded by police are made by the persons in whose names they have been recorded. Evidence of Mrs. Rokde according to the Revisional Court is of zero value for the purpose of proving that petitioner was living in adultery.

(3.) THE observations made by the learned Sessions Judge according to me cannot be challenged on any count. The learned Counsel for the petitioner tried to convince me that the documents produced will go to show that Respondent was living in adultery. He submits that all these documents are documents prepared in the course of official business and therefore they are public document. I cannot agree to this contention. Public document has been defined under Section 74 of the Evidence Act and those documents relied upon by the Court below cannot be said to be public documents, in view of that Section. Needless to say that if anybody wants to prove the contents of the documents other than the public documents it should be proved by through the author of the documents viz. person who has written that document. However, mere production of the documents kept in the police custody will not be a proof of as a public document, as rightly pointed out by the learned Sessions Judge. Unless the officer who recorded the statement is called for and examined, those documents cannot be said to be proved, particularly when the person who recorded the statement was very much alive.