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Chandrabhushan Bhimraj -vs- State Of Maharashtra on 5 September, 1994

Bombay High Court Chandrabhushan Bhimraj -vs- State Of Maharashtra on 5 September, 1994
Equivalent citations:1996 (1) BomCR 55, 1995 CriLJ 101
Bench: R Lodha

JUDGMENT

1. Chandrabhushan, Sheshnarayan and Gangabai who were accused Nos. 1, 2 and 5 respectively in Sessions Case No. 202 of 1987 State of Maharashtra v. Chandrabhushan and others have filed the present appeal aggrieved by the judgment of conviction and sentence passed by the 7th Additional Sessions Judge, Nagpur, on 31-1-1990 whereby the accused-appellants have been convicted for the offence under S. 306 of the Penal Code and sentenced to suffer R.I. for five years and to pay fine of Rs. 2000/- each and in default of payment of fine to suffer further R.I. for 6 months and under section sentenced to suffer R.I. for 1 year and to pay fine of Rs. 1000/- each and in default of payment of fine to suffer R.I. for 3 months. The Additional Sessions Judge directed the substantive sentences to run concurrently. The original accused No. 1 Chandrabhushan married Mala in the year 1984 at Nagpur. The original accused No. 2 Sheshnarayan, original accused No. 3 Raju alias Raghvendra are the brothers of Chandrabhushan. The original accused No. 4 Sau. Mangla is the wife of the original accused No. 2 Sheshnarayan. The original accused No. 5 Gangabai is the mother of the original accused No. 1 Chandrabhushan, and original accused No. 6 Ku. Manjusha is the sister of the original accused No. 1 Chandrabhushan. The prosecution case is that all the accused persons reside at Lodhipura within the jurisdiction of Ganeshpeth Police Station, Nagpur. At the time of marriage in the year 1984 the father of the original accused No. 1 was alive and resided in the same house. It is further case of the prosecution that the original accused No. 1 used to look after the fair-price shop of the family and after his marriage he separated and use to live with his newly married wife Mala in upper storey one room apartment. The income of the original accused No. 1 Chandrabushan was not sufficient to sustain him, his mother, brothers and other family members, and the original accused Nos. 2 to 6 frequently harassed and illtreated Mala. The prosecution case is also to the effect that the original accused No. 1 the husband and the original accused No. 2 his brother often used to beat Mala and Mala was subjected to humiliation and insult and the situation of illtreatment, harassment, and cruelty had led to such an extent that Mala was driven to commit suicide and she got herself burnt in the intervening night of 14th and 15th April 1987. Shakuntala (P.W. 1) mother of the deceased Mala having come to know of the death of her daughter, when arrived at the house of the aforesaid accused persons in the morning, she was not allowed to enter the house. Shakuntala went to the house of the accused persons along with certain other persons. Shakuntala went to the Ganeshpeth Police Station, but the report was not recorded and at about 5.00 p.m. the police came to the house and recorded her statement. The postmortem was conducted and the cause of death of Mala was due to burn injuries.

2. The investigating officer carried out the investigation and during the course of investigation recorded the statements of various witnesses under S. 161 of the Cr.P.C. Various letters and chits, which are Exh. 49, 76, 77, 78, 79, 80, 81 and 82. The panchanama of the spot of occurrence was prepared which is Exh. 31. The inquest panchanama is Exh. 32.

3. From the postmortem report, it is seen that the deceased Mala had sustained 95% burn injuries on her body, details of which were found as under :

“17. Surface wounds and Burns are dermo epidermal burn. injuries, the ir nature position, dimensions Head neck face – 9% (measu red) and directions to be accurately stated Front chest – 9% their probable age and causes to be noted. Front of abdomen – 7%

Back of chest and abdomen – 15%

Upper extrimity

right – 9%

left – 9%

Lower extrimity

right – 18%

left – 18%

Genitalia – 1%

—————————– Total burns area – 95% If bruises be present, what is the condition of the subcutaneous tissues ?

(N.B. – When injuries are numerous and cannot be mentioned within the space available, they should be mentioned on a separate paper which should be signed). Burnt area shows Redding there was sooty blacking of parts, present at places, part around waist and abdomen spared from burning due to cloths. As stated above in the postmortem report conducted by Dr. A. P. Dongre and Dr. V. V. Wase (Exh. 44) dated 15-4-1987 the cause of death is shown as due to burns and shock.

4. On completion of investigation, the investigating officer submitted the challan against all the six accused persons before the Chief Judicial Magistrate, Nagpur, who by him order dated 10-9-87 committed the accused for trial to the Sessions Judge since it was exclusively triable by the Sessions Judge.

5. The learned Additional Sessions Judge, Nagpur framed the following charges against all the accused persons :

“That on or about 15-4-87 at Nagpur, you accused Nos. 1 Chandrabhan, the husband of deceased Mala alias Durga and you accused 2 to 6 relatives of accused No. 1 subjected deceased Mala alias Dugra to cruetly and thereby committed an offence punishable under S. 498A of the I.P.C. and within the congnizance of the Court of Session.

2. That on 15-4-87 at Nagpur, Mala alias Durga committed sucide and that you accused Nos. 1 to 6 abetted its commission by subjecting deceased Mala alias Durga to cruelty and thereby committed an offence punishable under S. 306 of the I.P.C. and within the cognizance of the Court of Sessions.

And I hereby direct that you be tried by me on the aforesaid charges.”

6. In support of its case the prosecution examined Shakuntalabai (P.W. 1), mother of deceased Mala alias Durga, Kamlabai (P.W. 2) residing opposite the house of the deceased Mala, Shamabai (P.W. 3) resident of the locality where the deceased Mala was residing, Lalita Joshi (P.W. 4) resident near the house of Shakuntalabai (P.W. 1), Suman Gupta (P.W. 5) Teacher, Shila Chitamulwar (P.W. 6) elder sister of the deceased Mala, Sharda Mutkure (P.W. 7) younger sister of Mala, Sunil (P.W. 8) younger brother of the deceased Mala, Chandrkant Chitmulwar (P.W. 9) brother-in-law of the deceased Mala (Mala was younger sister of his wife), Ramkrishna Amolakchand Potdar (P.W. 10), resident of the area of the accused persons, Chatrapal Verma (P.W. 11) resident of the locality of the accused, Ramesh Chitmulwar (P.W. 12) brother-in-law of the deceased Mala (deceased Mala was real sister of his wife) and Ashok Jot (P.W. 13) P.S.I. of Ganeshpeth Police Station at the relevant time and who was the investigating officer. The prosecution has also produced post-mortem examination report of the deceased Mala (Exh. 44), inquest panchanama (Exh. 32), spot panchanama (Exh. 30) copy of station dairy Sana entry dated 27-4-1987 (Exh. 45), various seizure-memos and first information report dated 15-4-1987 (Exh. 66) which are not disputed. The prosecution also produced various letters and chits written by the deceased Mala and the said letters and chits are at Exh. 49, 76, 77, 78, 79, 80, 81 and 82.

7. Statements of all the accused persons thereafter were recorded under S. 313 of the Cr.P.C. and all the accused person denied the allegations against them. The accused persons pleaded not guilty. The learned Additional Sessions Judge vide impugned judgment dated 31-1-1990 has acquitted the original accused Nos. 3, 4 and 6, and convicted the original accused Nos. 1, 2 and 5 who are the present appellants in this appeal for the offences under Ss. 306 and 498A of the Penal Code as stated above.

8. The learned counsel for the accused appellants has submitted that there is no evidence to prove the harassment and mental cruelty caused by the present accused-appellants to the deceased Mala. According to the learned counsel for the accused-appellants, the letters at Exh. 49, 76, 77, 78, 79, 80, 81 and 82 have not been proved and, therefore, could not have been relied upon. The learned councel further submitted that the oral evidence led by the prosecution is exaggerated and they have deposed before the court in parrot like fashion and they are interested witnesses and, therefore, are not of much avail. The submission of the learned counsel for the accused-appellants is also that there are serious omissions and contradictions in the statements of witnesses produced by the prosecution and, therefore, the conviction passed by the learned trial Court against the accused appellants is not sustainable. The learned counsel also raised the plea that the allegation of cruelty is an afterthought since the report was lodged belatedly.

9. On the other hand the submission of the learned A.P.P. is that the mental cruelty and harassment caused to the deceased Mala by the husband (accused-appellant No. 1), the brother of the husband (accused-appellant No. 2), the mother of the husband (accused-appellant No. 3) is proved by the testimony of Smt. Shakuntalabai (P.W. 1) Kamlabai (P.W. 2), Lalita Joshi (P.W. 4), Shila Chitmulwar (P.W. 6), Sharda Mutkure (P.W. 7), Sunil (P.W. 8), Chandrakant (P.W. 9) and Ramesh Chitmulwar (P.W. 10). The learned A.P.P. also urged that the letters at Exts. 49, 76, 77, 78, 79, 80, 81 and 82 clearly establish the mental cruetly and harassment caused by the husband-accused appellant No. 1 to the deceased to such an extent that she was compelled and driven to commit suicide. The learned A.P.P. submitted that there are no material contradictions or omissions in the statements of witnesses aforesaid and, therefore, the conviction and sentence awarded by the Additional Sessions Judge does not call for any interference by this Court in this appeal.

10. On thoughtful consideration over the entire matter, it would be seen that the prosecution has produced two types of evidence to prove the mental cruelty and harassment caused to the deceased Mala by the accused-appellants, namely, (1) in the nature of oral testimony of P.W. 1 Shakuntalabai, P.W. 2 Kamlabai, P.W. 4 Lalita Joshi, P.W. 6 Shila, P.W. 7 Sharda, P.W. 8 Sunil, P.W. 9 Chandrakant and P.W. 12 Ramesh, and (2) letters and chits written by the deceased Mala which are at Exhs. 49, 76, 77, 78, 79, 80, 81 and 82. Coming to the oral testimony first, P.W. 1 Shakuntalabai, the mother of the deceased Mala, has deposed before the Court that she has four deughters and one son, and Mala alias Durga (deceased) was one of them. Her husband died in the year 1971. The marriage between the deceased Mala and the accused-appellant No. 1 Chandrabhushan took place in the year 1984 at Nagpur. According to her, all the accused persons resided in the same house and all were joint, and their mess was common. Two months before the death of Mala, her father-in-law i.e. the father of the accused-appellant No. 1 died. She has further deposed that after one year of marriage, Mala gave birth to a female child. According to her, since her house was near to the house of the accused persons, Mala used to visit her house often and complain about illtreatment meted out to her by the present accused-appellants. According to her, Mala used to complain that she was not being provided proper food, no care was taken of her daughter and the present accused-appellant Nos. 2 and 3 used to harass and humiliate her by saying that she was “Awara Sadak Chhap Woman”. She has deposed that she used to supply the ration and Kirana to her daughter. She also has stated about one incident, whereby the accused-appellant No. 1 pushed her daughter from the stair-case. P.W. 1 Shakuntala has also stated that when Mala burnt herself the accused-appellant No. 2 came to her house and told that Mala was burnt and when she, her son and her daughter went to their house, they were not allowed to weep. She has deposed that when the accused persons did not allow to see Mala, she went to Ganeshpeth Police Station, lodged oral report and Exh. 48 is the said report, but before that she had been to the police station at about 8.00 a.m. and the police inquired from her about the incident and then came in the evening at her house and took down the report. In cross-examination she has stated that Mala never got annoyed, but for ordinary matters she used to feel it. She has further deposed in cross-examination that at the time of marriage Mala and the accused resided jointly, but after delivery of female child, Mala used to reside separately in upper storey. She has also stated in the cross-examination that the financial conditions of Mala was not satisfactory and due to this, she may have been mentally disturbed. She has also admitted that during the life time of Bhimarj, the father of accused No. 1 and the father-in-law of deceased Mala who died two months before the date of incident, she did not disclose to him, that her daughter was illtreated.

11. P.W. 2 Kamlabai, who was staying infront of the house of the accused, has stated that she used to talk to Mala and Mala used to tell her that she was unhappy. She also deposed that many times she heard quarrels between the mother-in-law and the daughter-in-law and also between in-laws and daughter-in-law. In cross-examination she has expressed ignorance whether the family was living jointly or separately. She has also admitted that she never went to the house of the accused. Thus her testimony cannot be said of any avail to the prosecution. P.W. 3 Shamabai has been declared hostile and her evidence is of no help.

12. P.W. 4 Lalita Joshi, who has been resident near the house of P.W. 1 Shakuntalabai i.e. the mother of Mala, has deposed before the Court that whenever Mala used to visit her mother’s house she used to visit too. One day when Mala was limping, she questioned her as to why she was limping Mala told her that she was pushed down from the stair-case, but she did not disclose the name of the person who pushed her from the stair-case. This incident, according to her, was about 15-20 days prior to the incident in question. In cross-examination she has expressed the ignorance as to whether the family of the accused persons was joint or whether Mala was residing separately. She also did not know the financial position of Mala. She has also stated that she did not go to the house of Mala, when she was burnt. On the face of her statement, it cannot be said that she is much reliable or her statement is of no help to the prosecution case. P.W. 5 Suman has been declared hostile.

13. P.W. 6 Shila is the elder sister of the deceased Mala. She has stated that Mala used to tell them that on trifle matters her monther-in-law, her husband’s sister and her husband’s brother teased her. Mala was not allowed to watch the T.V. and she was not allowed to sit on the Sofa. She has also stated that Mala told her that the accused No. 1 husband and appellant-accused No. 2 had beaten her. She has also stated about the incident of her fall from the stair-case and has deposed that on enquiry Mala told her that because of the quarrel in the house the accused-appellant No. 1 i.e. her husband had pushed her from the stair-case. She has stated in cross-examination that Mala and her husband were residing separately in one small room in upper storey. She has also stated that there was no connection with the members residing down-stairs, but there was only one way. She has stated that Mala treated her child in the Mayo Hospital for want of money. The doctor did not say that the child cannot be cured. She has further deposed that the child is with the accused No. 1 and the accused No. 1 is looking after her and due to this circumstances, Mala was not under tension. P.W. 7 Sharda, who is younger sister of the deceased Mala, has deposed that all the accused persons used to illtreat Mala and torture her. She has stated that Mala told her that her mother-in-law had beaten her. She has also stated that the accused Nos. 1 and 2 also beat her. In cross-examination she has admitted that she did not ask Mala the reason for illtreatment, but Mala used to say that the accused persons used to complain that nothing was given by her parents :

14. The younger brother of the deceased Sunil (P.W. 8) has stated in his deposition that at the time of marriage all the accused and Mala were living jointly and after birth of the daughter Mala and her husband got separated. He has stated that Mala told him that on one or two occasions the accused No. 2 pushed her and Mala also told him that the accused No. 1 has pushed her from the stair-case. He deposed that Mala was not provided proper food. In cross-examination he has stated that Mala did not say that her income in the house was less and, therefore, she should get the job. She has further stated in cross-examination that there was no tension on the mind of Mala because of poor financial condition. He has admitted that Mala and her husband is staying in the upper storey and Mala used to cook her food upstairs. This witness was called on the request of the A.P.P. for further examination and he has proved that the letters Exhs. 76, 77, 78, 79, 80, 81 and 82 are in the hand-writing of the deceased Mala. He has admitted that he has seen the writing of Mala, elder sister, and was well acquainted with the said hand writing. He has also proved that Exh. 49 was written by Mala.

15. P.W. 9 Chandrakant, who is the brother-in-law of the deceased Mala (Mala was younger sister of his wife) has stated before the Court that Mala told him that her mother-in-law i.e. the appellant-accused No. 5 and the appellant-accused No. 2 used to beat her and so also the husband. He has also stated that when he went to see the daughter of Mala, Mala was staying upstairs and she said that she was being tortured. In his cross-examination, he expressed ignorance as to whether all the accused persons were residing separately or jointly and about their financial condition. P.W. 12 Ramesh is also the brother-in-law of the deceased Mala (deceased Mala was younger sister of his wife) and he has stated before the Court that his wife used to tell him that Mala was not being treated properly by the accused persons. On its face, his testimony is based on hear-say and is therefore of no avail.

16. Adverting to the letters at Exhs. 49, 76, 77, 78, 79, 80, 81 and 82, it would be seen that the said letters do not contain any allegations of torture, mental cruelty and harassment by the accused-appellants Nos. 2 and 3 (original accused Nos. 2 and 5), Exh. 49 is the letter which is written by the deceased Mala to her sister Sharda, in which it is stated that some function about her daughter was going to be organised and that they should bring some good saree since her mother-in-law used to tell her that her parents have not given her any good saree. Exh. 76 is the letter which is written by the deceased Mala and it shows that she was not being liked by the accused-appellant No. 1 (her husband) since the appellant-accused No. 1 used to live many a time in Dharamshala. She has written in his letter that if the accused-appellant No. 1 was to live that way, why he did get married and he is troubling himself as well as troubling her. She has also expressed her agony due to the behaviour of the accused-appellant No. 1 by adding that he has no time for her and even while he eats the food he does not look at her. In Exh. 79 it is written by Mala that before she dies, she has one desire of having a son and thereafter she will the in peace. In Exh. 80 which is the backside of Exh. 79 the deceased Mala has written that “you have been always saying, go to your mother’s place, but I would not go. I am thinking of dying many a time”. In yet another writing Exh. 81 it is written by the deceased Mala that she can tolerate many things, but not accusation. She has been burning from inside and now she has decided to bring an end to her life and after her death, her daughter may be handed over to her elder sister. It is evident from these letters and writings which has been proved to be in the handwriting of deceased Mala by the statement of P.W. 8 Sunil, the younger brother of Mala, that the relations between the accused-appellant and the deceased Mala had reached the point of no return. The treatment and behaviour meted out by the accused-appellant No. 1 to the deceased Mala was so horrible and grave that the deceased Mala lost charm in her life. Time and again she wanted to know from her husband as to why he was not discharging marital obligations towards her, but the husband did not tell her anything. It is further reflected from these writings and letters that the very look of the deceased Mala to the accused-appellant No. 1 had become repulsive and he used to live and sleep in Dharamshala and even while taking meals he would not look at Mala. The conduct of the accused-appellant No. 1 made the life of the deceased Mala miserable. Not only that by acts or omissions of the appellant-accused No. 1 the deceased Mala was compelled to lead uncomfortable life, but Mala was in fact driven to such a situation where she did not find any meaning to her life. The cruelty meted out by the accused-appellant No. 1 to the deceased Mala which resulted in her mental torture and harassment is well established from the aforesaid evidence.

17. It can, therefore, be safely said that the deceased Mala was compelled to commit suicide due to the circumstances created by the accused-appellant No. 1. The husband (accused-appellant No. 1) subjected her to such a treatment, which was wilful on his part, that the deceased Mala was driven to commit suicide. The accused-appellant No. 1 by his acts and omissions aided to the commission of sucide by the deceased Mala and, therefore, so far as the accused-appellant No. 1 is concerned, the prosecution has by ample evidence proved beyond reasonable doubt that the accused-appellant No. 1 has abetted the commission of suicide by the deceased Mala and that he subjected her to cruelty by his wilful acts, which resulted in driving the deceased Mala to commit sucide. The offences under Ss. 306 and 498A of the Penal Code are proved so far as the appellant-accused No. 1 is concerned and have been rightly held to proved by the trial Court against him.

18. Now coming to the question as to whether the prosecution has been able to prove the offence under Ss. 306 and 498A of the Penal Code against the appellant-accused No. 2 and the appellant-accused No. 5, it would be seen that the evidence of prosecution against them is not satisfactory and in any case the evidence which has been led by the prosecution is not sufficient to prove the offence under Ss. 306 and 498A of the Penal Code against the accused-appellants Nos. 2 and 3. From the evidence which has been referred to above, it is clear that the deceased Mala and the appellant-accused No. 1 were living separately in one room in upper storey of the house. It is also established from the record that the deceased Mala and the appellant-accused No. 1 had separate mess.

19. In the face of this admitted position, it is had to believe and there appears to be exaggeration in he statements of P.W. 1 Shakuntalabai, P.W. 2 Kamlabai, P.W. 6 Shila Chitmulwar, P.W. 7 Sharda Mutkure, P.W. 8 Sunil and P.W. 9 Chandrakant regarding cruelty and harassment allegedly caused by the appellants Nos. 2 and 3 on deceased Mala. It would be further pertinent to not that Bhimraj, father-in-law of the deceased Mala, was alive upto 2 months before the suicide was committed by the deceased Mala, but the mother of the deceased i.e. P.W. 1 Shakuntalabai or any of the brothers or sisters of the deceased Mala never complained with Bhimraj about the illtreatment or harassment caused by the appellants Nos. 2 and 3. As regards the accused-appellants Nos. 2 and 3, the omissions taken out and contradictions pointed out in the cross-examination of P.W. 1 Shakuntala, P.W. 2 Kamlabai, P.W. 4 Lalita, P.W. 6 Shila, P.W. 7 Sharda, P.W. 8 Sunil and P.W. 9 Chadrakant cannot be said to be immaterial and therefore it creates lot of suspicion about credibility of these witnesses so far as the involvement of the accused-appellants Nos. 2 and 3 for the offence under Ss. 306 and 498A of the Indian Penal Code is concerned. As stated above, in the letters and writings at Exhs. 76, 77, 78, 79, 80, 81 and 82 there are no accusations or allegations by the deceased Mala against the accused-appellants Nos. 2 and 3 about their misbehaviour, illtreatment or cruelty to deceased Mala. On careful scan of the aforesaid testimony, it can be stated that the accused-appellants Nos. 2 and 3 have been sought to be implicated by exaggerated testimony of P.W. 1 Shakuntalabai, P.W. 2 Kamlabai, P.W. 4 Lalita Joshi, P.W. 8 Sunil and P.W. 9 Chandrakant and on such exaggerated testimony, the accused-appellants Nos. 2 and 3 cannot be held to be guilty of the offence under Ss. 306 and 498A of the Penal Code.

20. All in all it is not disputed that the deceased Mala committed suicide on 15-4-1987 by burning herself. From the discussion of the entire evidence, it can be safely said that the appellant-accused No. 1 (husband) by his voluntary conduct, acts, and ommissions had driven the deceased Mala to commit sucide and abetted in the commission of sucide. So far as the accused appellant nos. 2 and 3 are concerned, the prosecution has not been able to prove beyond reasonable doubt that they abetted in the commission of suicide by the accused or that they subjected the deceased Mala to cruelty or that she was driven to commit suicide.

21. In view of the foregoing discussion, the aforesaid appeal deserves to be partly allowed. The judgment of conviction and sentence dated 31-1-1990 passed by the 7th Additional Sessions Judge, Nagpur, in Sessions Trial No. 202 of 1987 against the appellant No. 2 Sheshnarayan and the appellant No. 3 Gangabai for the offence under Ss. 306 and 498A of the Penal Code is set aside. However, the judgment of conviction and sentence awarded to the accused-appellant No. 1 Chandrabhushan is maintained. The bail bonds of the appellants Nos. 2 and 3 are discharged. The bail bond of the accused-appellant No. 1 is cancelled and he is directed to surrender the competent authority forthwith to undergo the sentence awarded to him. Order accordingly.

22. Appeal partly allowed.

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