Friday 9 July 2021

Whether the court can make out a case of cruelty against husband U/S 498A of IPC based on stale letters issued by the wife to her father?

  The prosecution has relied upon the letters and the counsel

for the Appellant would argue that the letters are very stale, being of the years 1984, 1986, 1987 and 1988 whereas the incident had taken place at a much later point of time i.e. in 1994.

9. Learned counsel appearing for the Appellant had argued that

the letters are antiquated and much period has passed after they

were written. Perusal of the said letters would reflect the consistent conduct of the Appellant being an alcoholic, subjecting the deceased to beating on being drunk, being abusive to her and the scenario continue for over four years when the letters were

addressed. In despair, she sought assistance from her father and her helplessness could be seen when she is demanding money and

assistance from her father and requesting him to come to her

rescue. The harassment meted out to her is spelt out from the said letters. The father of the deceased has spoken about the continuous harassment meted out to his daughter by her husband on consuming liquor and then abusing and clobbering her. PW-5 deposes that he used to meet his daughter, whenever he used to visit Thane and on such visit, Shobha used to narrate the illtreatment meted out to her by her husband. There is no challenge to the said version of PW-5.

 The letters brought on record by the father of the deceased, no

doubt, relate back to 5 years, prior to the incident, but the

testimony of the daughter (PW-4) and the father of the deceased

PW-5 speak of the continuous harassment to the deceased at the

hands of the Appellant. The allegations levelled go unchallenged

and there is no denial or any suggestion given that the Appellant

has given up drinking and had stopped the harassment or illtreatment to his wife on consumption of liquor. The consistency in the behaviour of the Appellant clearly makes out a charge of cruelty attracting Section 498A of the IPC.

11. For the purpose of Section 498A of the IPC, cruelty has been

set out as any willful conduct which is of such a nature as is likely to

drive the woman to commit suicide or to cause grave injury or

danger to life, limb or health (whether mental or physical) of the

woman. The conduct of the Appellant would squarely fall within

the four corners of cruel treatment, which would make it

punishable under Section 498A of the IPC. Cruelty can be

physical or mental and merely because a woman has tolerated the harassment at the hands of her husband for a long period of time, it cannot be said that his behaviour has ceased to be cruel. Here is a woman, who suppressed her feelings and emotions stirring inside her on account of the harassment and ill-treatment at the hands of her husband, but when she is unable to escape the cruel treatment and is unable to put an end to the said treatment, she takes the extreme step of putting an end to her life. The cruelty being spread over a period of time does not make a woman numb so that she did not suffer the agony, discomfort meted out to her and the conduct continues to be cruel though it continued as a normal feature of married life of Shobha. For this reason, the submission of learned counsel for the Appellant that the letters are stale and cannot be relied upon, and deserves a rejection.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.589 OF 1998

Pandurang Ganpat Thalkar, Vs  The State of Maharashtra,


CORAM : MRS. BHARATI DANGRE, J.

PRONOUNCED ON : 30TH JUNE, 2021.


1. The Appellant, who was impleaded as Accused No.1 in a

crime invoking Sections 498A and 306 of the Indian Penal Code

(“IPC”) and charged subsequently for the same, came to be tried by

the Additional Sessions Judge, Thane, along with three other

accused persons and stand convicted for the aforesaid offence. On

his conviction under Section 498A of the IPC, he is sentenced to

suffer RI for 2 years and to pay fine of Rs.500/- and, in default, to

undergo RI for one month. Along with other accused persons i.e.

Accused Nos.2, 3 and 4, he was acquitted for the charge under

Section 306 read with Section 34 of the IPC and Accused Nos.2, 3

and 4 were also acquitted of the charge under Section 498A of the

IPC. The Appellant is aggrieved by his conviction under Section

498A of the IPC and the sentence imposed.

2. Deceased Shobha is the wife of the Appellant and the

marriage between the two was performed two decades back and,

they were cohabiting in Thane with one son and two daughters

born out of the wedlock. The fateful day on which Shobha set

herself on fire and sustained burn injuries is 24/11/1994. Being

present in her matrimonial home, she woke up early in the day,

made tiffin for her school going son and when the son left for

school at 6.00 a.m., she went to the bed again. After sometime, her

daughter Kirti woke her up and, thereafter, some altercation took

place between Accused No.2, her mother-in-law and the daughter

of the deceased. As Accused No.2 pushed her daughter, she

approached to her mother, Shobha being upset over the said act of

Accused No.2. The deceased questioned the Accused No.2 and, in

turn, Accused No.2 started hurling abuses at her and slapped her.

Accused No.2 asked the deceased to leave the house, which


tormented the deceased. Accused No.2 created ruckus in the house

and went out and raised false alarm that the deceased and her

daughter Kirti were assaulting her. This incident caused stress to

the deceased and she took the extreme step of setting herself on fire

by pouring kerosene on her person. At the time when this spat was

occurring in the house, according to the version of the prosecution,

the Appellant was present in the house. On Shobha sustaining

burn injuries, he carried her to Singhania Hospital, Thane and, on

information given by the doctor, the police arrived. Shobha

sustained 100% burn injuries.

3. On being admitted in the hospital, Shobha gave three Dying

Declarations; her first Dying Declaration was recorded by the

Police Sub-Inspector, Vartak Nagar Police Station, on 24/11/1994

at 9.30 a.m., with a certificate from the doctor that the patient was

in a condition to give statement. The said Dying Declaration is

exhibited as Ex-59. The second Dying Declaration was recorded

by the Special Executive Magistrate at 12.00 noon, on being

certified that the patient is in a condition to give statement. The

said Declaration is exhibited as Ex-25. The third Dying

Declaration, which is exhibited as Ex-60 came to be recorded by

the API at 12.30 noon in the presence of the member of Mahila

Rakshata Samiti, Vartak Nagar, Thane. The three Dying

Declarations, according to the prosecution, is the spindle around

which the case of the prosecution revolves and contain the

allegations levelled against the accused persons and all the accused

were charge-sheeted on the basis of the said Dying Declarations.

4. Apart from relying upon the Dying Declarations, the

prosecution unfolded its case before the court through its two key

witnesses - PW-5 Lahu, the father of the deceased and PW-4, the

daughter of the deceased. After sustaining the burn injuries,

deceased Shobha was administered treatment, but succumbed to

the burn injuries on 4/12/1994 and the cause of death was opined

as shock due to 100% burns. I will refer to the contents of the

Dying Declarations and their authenticity, which has been proved

by the medical officer examined by the prosecution, who had

deposed that the patient was in a fit condition to give the

statements and the officer recorded the statement, a little later.

5. I would refer to the testimony of PW-4 Kirti, the daughter of

deceased Shobha. PW-4 Kirti is 20 year-old girl and she states

before the court that the relationship between her father and her

mother were strained and her father used to beat her mother often

under the influence of liquor. She proceeded to state that her

mother was serving in one Balwadi and she used to work hard by

waking up at 4.00 a.m. and on completing her household work

used to leave for Balwadi. PW-4 Kirti has also spoken of the illtreatment

meted out to her mother, by her grandmother, but I need

not refer to the said ill-treatment as the grandmother (Accused


No.2) already stands acquitted. With precision, PW-4 Kirti has

narrated about the happenings of 24/11/1994 when her mother got

up early and prepared tiffin for her brother. She also referred to the

spat, which took place between herself and her grandmother, in

which her mother got embroiled and being anguished, she poured

kerosene on her person. PW-4 states that when her mother took

this extreme step, Accused No.2 kept on saying that she cannot do

anything and nothing can happen to her and treated her threats as

normal. She also deposed that her father, Accused No.1 was

sleeping at that time and she tried to extinguish the fire by taking

her mother to the bathroom. By that time, the neighbours also

arrived there. In the cross-examination, the witness was extensively

examined on the cause of discord and the manner in which the

deceased was subjected to ill-treatment by Accused No.2, her

grandmother and Accused Nos.3 and 4, the sisters of Accused

Nos.1, who were residing separately.

6. As far as the involvement of the Appellant is concerned, PW-

4 Kirti has deposed that her father, the Appellant was working in

Raymond Company and getting salary but, he did not pay the same

for catering to the household expenses. She stated that her mother

used to arrange for the expenses and used to draw a meager salary

of Rs.2,500/- per month, out of which, her mother used to arrange

for the money required for the education of all her siblings. While

narrating the incident, which took place when her mother set

herself on fire, the witness denied the suggestion that her father

poured water on her mother to extinguish the fire and stated that

she helped her mother to extinguish the fire.

7. Another witness examined by the prosecution, is the father of

deceased Shobha, aged 79 years, who has deposed that his daughter

was serving in Kindergarten of Thane Municipal Corporation and

the relationship between Shobha and her husband was strained and

there used to have quarrels very often and Shobha used to come to

his house and tells him that her husband consumes liquor and

abuses and thrashes her. She also narrated the harassment meted

out to her by her mother-in-law and sisters-in-law. PW-5 Lahu has

produced on record some letters written by Shobha and he has

identified her signatures. The letters received by him by post are

exhibited as Ex-31, Ex-32, Ex-33 and Ex-34 along with envelopes

in which they were received being Ex-35 to Ex-37. He relied upon

the said letters to establish the harassment faced by her daughter in

her matrimonial house. He admits of visiting the matrimonial

house of Shobha and pacifying her at times. This witness is also

extensively cross-examined on the point of financial arrangement in

the family and, particularly, qua Accused No.2 Chemabai, the

mother-in-law of the deceased. He deposed that whenever he used

to come to Thane, he used to visit his daughter at Raymond Chawl

and denied the suggestion that he intermittently used to meet

Shobha and/or that she did not write letters to him and that she did

not complain any harassment.

8. The prosecution has relied upon the letters and the counsel

for the Appellant would argue that the letters are very stale, being

of the years 1984, 1986, 1987 and 1988 whereas the incident had

taken place at a much later point of time i.e. in 1994. I will deal

with the said argument at a little later, but at present focus on the

letters. In the first letter dated 15/07/1984, deceased Shobha writes

about her husband again resorting to his drinking habit and she

complains that, every night he returns home being drunk and when

she attempts to stop him, he questions her and utters that he is not

drinking with her father’s money. He also threatened her that she is

free to report the incident to anyone but, nobody would come to

her rescue. Deceased Shobha writes that she is sending the letter

since her father had told her that she should write to him if she is

subjected to any ill-treatment.

The second letter is dated 05/03/1986, where she informed

him about her husband creating trouble in the house on consuming

liquor and also not reporting to duty. She requests her father to

bring fees of her daughter Kirti and also get her books and copies.

On 17/06/1987, the deceased again complained of the addiction of

her husband and writes that after drinking, he does not report for

work and writes about her battering husband. She refrains from

writing any details and requests that he should come and verify the

prevailing situation and that he had broken of the articles in the

house. She also pens that if he is desirous of meeting his daughter

alive, he should come at the earliest or otherwise he will find her

dead.

Another letter exhibited is dated 14/07/1998, where she

again narrates her woes and requests her father to come promptly as

he is the only support for her and, her brother, only hope. The

aforesaid letters speak volumes.

9. Learned counsel appearing for the Appellant had argued that

the letters are antiquated and much period has passed after they

were written. Perusal of the said letters would reflect the consistent

conduct of the Appellant being an alcoholic, subjecting the

deceased to beating on being drunk, being abusive to her and the

scenario continue for over four years when the letters were

addressed. In despair, she sought assistance from her father and her

helplessness could be seen when she is demanding money and

assistance from her father and requesting him to come to her

rescue. The harassment meted out to her is spelt out from the said

letters. The father of the deceased has spoken about the continuous

harassment meted out to his daughter by her husband on

consuming liquor and then abusing and clobbering her. PW-5

deposes that he used to meet his daughter, whenever he used to

visit Thane and on such visit, Shobha used to narrate the illtreatment

meted out to her by her husband. There is no challenge

to the said version of PW-5.

10. PW-4, who is not only the daughter of the deceased, but also

the daughter of the Appellant, deposed that the relationship

between her father and mother was strained and the father used to

beat her mother under influence of liquor. The said statement of

PW-4 also goes unchallenged. It is these two witnesses, who were

close to the deceased, have spoken of the harassment, which the

deceased underwent over a period of time, at the hands of the

Appellant since he was habituated to consumption of liquor. The

reason for harassment apparently being the consumption of liquor,

the deceased patiently continued the marital tie for 20 years. On

the fateful day, when a squabble took place in the house, fed up

with the conflict and confrontation in the house, she set herself on

fire. The letters brought on record by the father of the deceased, no

doubt, relate back to 5 years, prior to the incident, but the

testimony of the daughter (PW-4) and the father of the deceased

PW-5 speak of the continuous harassment to the deceased at the

hands of the Appellant. The allegations levelled go unchallenged

and there is no denial or any suggestion given that the Appellant

has given up drinking and had stopped the harassment or illtreatment

to his wife on consumption of liquor. The consistency in

the behaviour of the Appellant clearly makes out a charge of cruelty

attracting Section 498A of the IPC.

11. For the purpose of Section 498A of the IPC, cruelty has been

set out as any willful conduct which is of such a nature as is likely to

drive the woman to commit suicide or to cause grave injury or

danger to life, limb or health (whether mental or physical) of the

woman. The conduct of the Appellant would squarely fall within

the four corners of cruel treatment, which would make it

punishable under Section 498A of the IPC. Cruelty can be

physical or mental and merely because a woman has tolerated the

harassment at the hands of her husband for a long period of time, it

cannot be said that his behaviour has ceased to be cruel. Here is a

woman, who suppressed her feelings and emotions stirring inside

her on account of the harassment and ill-treatment at the hands of

her husband, but when she is unable to escape the cruel treatment

and is unable to put an end to the said treatment, she takes the

extreme step of putting an end to her life. The cruelty being spread

over a period of time does not make a woman numb so that she did

not suffer the agony, discomfort meted out to her and the conduct

continues to be cruel though it continued as a normal feature of

married life of Shobha. For this reason, the submission of learned

counsel for the Appellant that the letters are stale and cannot be

relied upon, and deserves a rejection.

12. Coming to the version of the deceased herself, which surfaces

from her statement recorded and exhibited in the form of Dying

Declarations, the prosecution again gains support from the same.

PW-2, the Medical Officer, who examined deceased Shobha in the

afternoon of 24/11/1994 found her to be conscious and able to give

statement. Accordingly, she gave an endorsement on the statement

recorded by the police. She deposed that she had examined the

patient before and after recording of the statement. She also

deposed that she was present while recording the statement, but on

minor particulars like the exact time when the patient was

admitted, the doctor who gave medicines to the patient, etc., which

she was unable to answer, do not in any way, create any doubt on

her credentials or her testimony. PW-3, the Special Executive

Magistrate, who has recorded the statement of deceased Shobha in

‘question and answer’ format, deposed that he had recorded the

statement after the doctor PW-2 took him towards the patient, who

was admitted in the burn ward and the doctor examined the patient

and found her to be conscious and able to speak and, after

disclosing his identity to the patient, he recorded the statement.

The extensive cross-examination did not shake the credibility of

this witness or of his statement.

In the statement recorded, when asked about how did she

sustain the burn injuries, Shobha, in great detail, has narrated the

incident which took place in the morning and clearly states that her

husband abuses and assaults her after consuming liquor. She

categorically states that she had set herself on fire being fed up with

the harassment administered to her by her mother-in-law, sister-inlaw,

their husbands and her own husband. In the Dying

Declaration, which is exhibited at Ex-60 recorded by API, she has

named her husband as one of the culprit and stated that on account

of harassment meted out to her by him, she had set herself on fire.

In the statement at Ex-59, deceased Shobha had deposed that when

the spat began in the morning of 24/11/1994, her husband was at

home, but made no attempts to resolve the dispute and being fed

up, she poured kerosene on her person and set herself on fire.

There is no inconsistency in the said three statements, which are

recorded by following the procedure. The doctor has made a

remark on the said certificate and has also deposed that deceased

Shobha was in a fit and conscious condition to give statement. The

two statements are recorded by the police, whereas one statement is

recorded by the Special Executive Magistrate, who have no

animosity or reason to inculpate the Appellant. Similarly, the

Investigating Officer, who has conducted the entire investigation

has also no reason to implicate the present Appellant, but it is on

the basis of the evidence collated by him and put in the form of

charge-sheet and further since the said evidence inspired

confidence, the Appellant stood convicted by the impugned

judgment. The impugned judgment has appreciated the evidence

brought on record by the prosecution through reliable witnesses

and through the dying declarations recorded before Shobha

succumbed to the burn injuries and do not warrant any

interference. The Appellant is already acquitted of a grave charge

under Section 306 of the IPC and he has been found guilty of

subjecting deceased Shobha to cruelty. The trial court has shown

leniency and has imposed a sentence of 2 years RI, whereas Section

498A of the IPC provides for punishment with imprisonment for a

term which may extend to 3 years. The Appellant has already

escaped with a lesser punishment than the maximum prescribed

and, in my considered opinion, since he has made out no case for

setting aside the order of conviction, the sentence imposed also

meets the same fate. Upholding the impugned judgment and

sentence, the appeal is dismissed.

13. I appreciate the sincere efforts taken by Mr. Amit S. Mane,

the learned appointed advocate for the Appellant. The High Court

Legal Services Committee, Mumbai, is directed to pay his fees as

per rules, within four weeks from the date of receipt of this order.

(MRS. BHARATI DANGRE, J.)


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