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Mithailal And Others-vs-State Of Maharashtra on 30 April, 1993

Bombay High Court Mithailal And Others-vs-State Of Maharashtra on 30 April, 1993
Equivalent citations:1994 (2) BomCR 720, 1993 CriLJ 3580
Author: B Wahane
Bench: B Wahane, W Sambre

JUDGMENT

B.U. Wahane, J.

1. Yatra Naryantu, Pujyate, Tatra Ramante Devatah. This is one facet of our Indian society towards the women while the other is that Dhola, Gavar, Shudra, Pashu, Nari yah sub Tadan ke Adhikari. The true translations whereof are – (i) Wherever woman are highly respected, society prospers and moves forward, fast with stability and (ii) The drum, the rustic, the Shudra, the animal and the woman are all entitled to receive beating. Besides this Indian philosophy regarding the woman folk, we speak of modernisation and humanitarianism, but barbarism and inhumanitarianism is still experienced, day in and day out. In this case we have to deal with an episode of a young married woman who died of starvation in the cattle shed of her in-laws’ house.

2. The original accused preferred this appeal against their conviction for the offence punishable under Sections 342 and 302 read with Section 34 of the Indian Penal Code passed by the 2nd Additional Sessions Judge, Bhandara on 13-5-1992 in Sessions Trial No. 24/90. The facts leading to the institution of the case against the appellants may be described in brief as under :-

3. Deceased Sitabai, sister of Motilal Mahadeo Shahu (P.W. 4) of Nagpur was married with the appellant/accused no. 1 Mithailal s/o Rajaram Sahu, resident of Deori, District Bhandara on 20-2-1975. The appellant No. 2 Pappu alias Hiralal is brother of the appellant No. 1 Mithailal. Appellant/accused No. 3 Rampyaribai is mother of the appellants 1 and 2, whereas the appellant/accused No. 4 Shivkumari is the wife of the appellant/accused No. 2.

Deceased Sitabai was the only sister of five brothers including Motilal (P.W. 4). All the brothers and the mother spent considerable amount in the marriage of deceased Sitabai. They had presented golden ornaments and cash of Rs. 10,000/- to the accused No. 1 during the said marriage. After marriage, Sitabai went to reside with accused No. 1 Mithailal at Deori. At Deori, the appellants/accused has a big Wada (big residential house), agricultural and other joint property. For few days, Sitabai was treated cordially. Thereafter the appellants persuaded her to demand and bring money from her brothers. On refusal of record, she was subjected to cruelty and torture. She was not even provided with food and at the instance of other accused, the appellant No. 1 used to beat her. The appellant No. 2 had molested her in the house. On that occasion, Sitabai had reported the matter to the Police Station and the offence was registered against him under Section 354 of the Indian Penal Code.

4. Sometimes in the year 1984 a telephonic message was received by the uncle of Motilal (P.W. 4) at Hansapuri, Nagpur to the effect that Sitabai was hospitalised at Deori. Consequently, Motilal and his brothers as also some other relations went to Deori. However, they found that the message was false. Sitabai had complained to her brothers and others about ill-treatment at the hands of the accused Nos. 1 and 2 viz. Mithailal and Pappu. Anyhow, the brothers persuaded the accused not to ill-treat her. Motilal again received another telegram dated 7-7-1984 from Deori and, therefore, he and other brothers went to Deori and found the condition of their sister Sitabai serious. The brothers tried to persuade Sitabai to accompany them. However, she refused to accompany with them and told them that she would like to live and cohabit with her husband at Deori only. In their presence, Sitabai was kept in a room in another house of the appellants situated near Laxmi Talkies at Deori. However, considering the plight of Sitabai, she was brought to Nagpur where she stayed till 19th January, 1989. Before deceased Sitabai had left the abode of her husband in the year 1984, she had sent letters addressed to her brothers expressing her own plight. The letters have been placed on record. In those letters she had specifically stated that the accused had directed her to bring considerable money from her brothers and on refusal, she was subjected to ill-treatment, cruelty and harassment. She was not provided with food and other necessities of life. She was neglected. Anyhow, as a Hindu woman she wanted to live with her husband only.

5. On 20-1-1989 Sitabai was reached to Deori at the house of the accused with the help of police. At that time the Deputy Superintendent of Police, Bhandara had directed the Police Station Officer, Deori to extend co-operation to the destitute lady Sitabai by reaching her to her husband’s house and persuade her husband and other family members to allow her to live in their house with her husband. Manda (P.W. 21), a Lady Constable reached Sitabai to the residential house of the accused on 20-1-1989. It has come on record that prior to 20-1-1989, the brothers of Sitabai on many occasions had tried to send her back, but the accused were not ready to keep her and maintain her. Sitabai had sent several letters, post cards, inland letters and chits complaining about the ill-treatment at the hands of the accused persons and demand of Rs. 1 lakh and five tolas of gold.

6. On 20-1-1989 initially the accused were not ready to keep back the deceased Sitabai. However, due to intervention of police and panchas of Deori, they allowed Sitabai to live, but not in the ancestral house. She was kept in a room of another house of the accused near Laxmi Talkies, Deori. Sitabai was, therefore, forced to live separate from her husband.

6A. On 27-1-1989, appellant/accused No. 1 Mithailal filed petition for divorce in the Court of the Civil Judge, Senior Division, Bhandara. The accused No. 1 had given address of Sitabai of Nagpur in the said petition though she was residing with him at Deori. Motilal (PW4), brother of deceased Sitabai received summons at Nagpur on behalf of his sister Sitabai. The case was fixed on 8-9-1989. In connection with the summons issued to Sitabai, Motilal (P.W. 4) came to Bhandara. However, he did not find his sister Sitabai in the court and, therefore, he went to Deori on the next day. At Deori he learnt from the villagers that Sitabai was killed and buried. Consequently, he lodged report at Deori Police Station. The offence was registered against the appellants/accused under Sections 342 and 302 read with Section 34 of the Indian Penal Code. The body was exhumed on 12-9-1989 and an autopsy on the body of deceased Sitabai was performed by Dr. Anant Dehadrai (P.W. 19). He found the body highly decomposed and, therefore, he could not give the cause of death. Exhibit 168 is a post-mortem report.

It is necessary at this stage to revert back to mention that on 8-9-1989, accused Pappu lodged a written report to Police Station, Deori informing that Sitabai was lying in the cattle shed in the neighbourhood of their house. He expressed that he had no knowledge whether she was dead or alive. The report was registered and requisition letter was sent to the Medical Officer, Rural Hospital, Deori for post-mortem. Dr. Gedam (P.W. 20) went to the spot along with the Police Patil, held the medical examination and declared that Sitabai was dead. The body of Sitabai was sent for post-mortem. ASI Lakhan Shahare who had registered the report and sent requisition, then recorded statement of P.W. 2 Karu. The statements of other witnesses were recorded by PSI Nale. Thereafter the body was given to the appellants/accused for cremation.

7. During the investigation, the Investigating Officer, PSI Murlidhar Nale (P.W. 26) recorded the statements of neighbourers and other visitors to the house and relations of the deceased Sitabai as also seized about 13 post cards, 11 inland letters, 4 letters written on plain papers and about 20 chits written by deceased Sitabai to her brother Motilal (P.W. 4) and other relations.

8. The prosecution examined in all 26 witnesses to bring the guilt forth against the appellants/accused. The defence of the accused is a denial. The appellants contended that in fact, the appellant No. 1 Mithailal always wanted to maintain his wife Sitabai. Neither he nor any family members ever ill-treated her by beating or in any other manner, as alleged by the prosecution. According to the appellants, Sitabai herself was adamant and she herself invited death to falsely implicate them. From time to time Sitabai had lodged false reports implicating the entire family of the appellants. Police used to harass them by calling in Police Station quite often. Once appellant/accused No. 1 was beaten by PSI Pande. Thus, it is tried to urge that the Police being interested in Sitabai, they falsely involved the appellants/accused in this case.

9. The learned Trial Judge after scrutinising the evidence, reports lodged by deceased Sitabai and accused from time to time and the letters written by Sitabai during her life time, arrived at a conclusion that the accused in furtherance of their common intention wrongfully confined deceased Sitabai and intentionally caused her death by ill-treating, beating and by not providing food to her. He held the appellants guilty for both the offences and resultantly sentented them to suffer rigorous imprisonment for six months and to pay a fine of Rs. 300/-, in default to further suffer rigorous imprisonment for two moths for the offence punishable under Section 342 read with Section 34 of the Indian Penal Code, and to suffer imprisonment for life for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

10. Shri Deshpande, the learned counsel for the appellants made many fold submissions, such as –

(1) Prior to the death of Sitabai, the appellants/accused were prosecuted in many cases. The charge-sheets are filed in the courts and the cases are pending. Shri Deshpande urged that this circumstance should not be given weightage as incriminating factor.

(2) Shri Deshpande contended that the post cards, in-land letters, chits and other letters (exhibits 97 to 145) are not admissible as those letters have not been proved and also not sent to the Hand-writing Expert for comparison with the admitted hand-writing of deceased Sitabai.

(3) The Police, not only of Deori, but also the Superintendent of Police and Deputy Superintendent of Police showed special interest in Sitabai and thereby harassed the appellants/accused.

(4) Sitabai was thrusted in the house of the appellant/accused by police on 20-1-1989 against their wishes. Thus, the Police had developed a bias towards the appellants/accused. It is in the evidence that for some days Sitabai was kept in another house of the appellants/accused near Laxmi Talkies. Though it is alleged that she was subjected to cruelty and ill-treatment, no neighbourer including Dr. Chute who was tenant in the same building has not been examined by the prosecution and thus, adverse inference be drawn.

(5) Even assuming that deceased Sitabai was living in a cattle shed, it had no doors. Similarly, she was free to move and, therefore, it cannot be construed that she was wrongfully confined in the house to attract the ingredients of Section 342 of the Indian Penal Code.

(6) The appellants were within their right to obstruct Sitabai’s entry in their residential house. If she was really aggrieved, she ought to have knocked the doors of the Court for redressal. Under these circumstances, if they have man-handled her and at times not provided her with food and other essentials, they have committed no offence muchless to lead her to death. Thus, they are not liable for the death of Sitabai.

(7) The husband is liable to maintain the wife, it only a civil liability. If he and other family members, of his family omitted to provide her with food, it cannot be construed that they intended to cause death of Sitabai.

(8) From the evidence of the two doctors, viz. Dr. Anant Gopalrao Dehadrai and Dr. T. G. Gedam, it is apparent that they did not notice any injury either internal or external on the person of the deceased. This circumstance gives go-bye to the allegation that deceased Sitabai was ill-treated and beaten till her death.

(9) Dr. Gedam (P.W. 20) in his report stated that the cause of death cannot be given while in the Court he deposed that Sitabai died due to starvation. Thus, there is no cogent and reliable evidence to establish the cause of death of Sitabai.

(10) Lastly he submitted that if two views are possible, the view beneficial to the accused by adopted and the accused be set at liberty.

11. Shri Deshpande, the learned counsel for the appellants/accused and Shri Somalwar, the learned counsel for the State, took us through the evidence on record, rival reports lodged with police and higher authorities, and the letters. We have heard both the learned counsel at length.

12. Since the issues raised by the learned counsel for the appellants/accused are interlinked, they need not be dealt with separately. Firstly, we shall deal with the submission of the learned counsel in respect of the various letters written by Sitabai to her brothers and other relations. The letters are at exhibits 97 to 145. It is seen from the record that exhibits 97 to 109 are the post cards, exhibits 109 to 125 are the in-land letters and exhibits 126 to 145 are the chits written by Sitabai to her brother P.W. 4 Motilal. On perusal of the letters, it can be gathered that Motilal (P.W. 4) was looking after the welfare of his sister Sitabai. After marriage, he along with his brothers and other relations had many times visited Deori after receiving the information and telegram regarding the ill health of Sitabai. Motilal (P.W. 4) deposed that whenever he had an occasion to visit Deori, Sitabai used to tell him as regards her plight. She used to explain that she was beaten, ill-treated and was kept without food by the appellant No. 1 and other family members. He deposed that as the condition of Sitabai was bad, she was taken to Nagpur where she stayed with them from 1984 till 19th Jan., 1989. During the aforesaid period also, he and other relations had made efforts to reach Sitabai to the house of the appellants, but they did not allow her. On the contrary, Sitabai being infatuated in love with her husband, all the time she expressed that she wants to cohabit with her husband and with the help of police, she was reached to Deori on 20-1-1989. This Motilal (P.W. 4) specifically stated that Sitabai in person or through the letters apprised him and other brothers that the appellants/accused are demanding money and on her refusal, she was given a cruel treatment, beating and that she was not provided with food. We have gone through the letters and to know the contents thereof.

13. On 6-7-1984 she wrote an in-land letter to her brother Motilal wherein she disclosed that she was beaten by her mother-in-law, brother-in-law Pappu and her husband too, closing the doors. Brother-in-law used to say that they are interested in divorce. She further disclosed that they were forcing her to go to Nagpur. She referred to a telegram dated 3-7-1987 in the said letter and lastly she expressed her desire that he should come to Deori and try to persuade her husband and other family members not to ill-treat her and beat her. She specifically expressed her desire to stay with her husband only and whatever may be the consequences, she would not leave his house. She expressed that she is not interested to come to Nagpur as the appellants may take it as a pretext for divorce.

There is another letter dated 7-7-1984 (Ex. 113) in which also she has expressed the same agony. She expressed that accused were demanding Rs. 5000/- from her to be brought from her brothers. In this letter she has expressed her desire to come to Nagpur.

There is yet another letter (Ex. 117) wherein deceased Sitabai had made allegations against Deori police. She alleged that the police and the accused are having hand-in-glove with each other. In that letter she requested Motilal to come to Deori and have a talk with police and the appellants so that there may be improvement in their attitude. She stated that accused Pappu used to press her neck and the mother-in-law used to take out burning fire wood and direct sister-in-law (accused No. 4) to assault her. The appellants/accused used to direct her to bring money from her brothers to enable her to maintain herself. In this letter itself she expressed that unless she brought Rs. 1 lakh,

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