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Kotesh Rajavir Bhandari-vs-The State Of Maharashtra on 22 October, 1992

Bombay High Court Kotesh Rajavir Bhandari-vs-The State Of Maharashtra on 22 October, 1992
Equivalent citations:I (1993) DMC 157
Author: M. F. Saldanha
Bench: M Saldanha

JUDGMENT

M. F. Saldanha, J

1. This appeal preferred through jail came up for admission before me on 28-9-1992. After going through (be record, it occurred to me that the appellant-accused, who is in custody and who is a very poor person, should be granted expeditious hearing because the only question for consideration was the matter of sentence. The record and proceeding was, therefore, sent for and this Court was required to request Shri A.S. Rao, learned Advocate, to appear as amicus curiae and assist the Court, particularly in view of the fact that the record is considerably heavy and required to be examined at short notice.

2. The prosecution alleged that the Accused was responsible for the suicide of his wife Dhanalaxmi on 23-6-1991. In the afternoon of that day, the body of Dhanalaxmi was found floating in the village tank and the matter was reported to the police. There were no visible or serious injuries on the body to suggest a homicidal death. In the absence of any evidence to the contrary, the conclusion was that she had died of drowning. The all important question before the Court was the question as to whether the Appellant-accused was in any way responsible for her death. The police received a complaint from her father Bodayya (P.W. 1) on 25-6-1991 and arrested the Accused on charges punishable under Sections 306 and 498A of the Indian Penal Code. The investigation was completed and the Accused came to be charge-sheeted. The learned 7th Assistant Sessions Judge, Thane convicted the appellant-accused for the offences punishable under Sections 306 and 498A of the Indian Penal Code and awarded, rigorous imprisoument for five years and to pay a fine of Rs. 5.000/-, in default, to suffer rigorous imprisonment for one year under the first head of charge, end to rigorous imprisonment for two years and to pay a fine of Rs. 1,500/-, in default to suffer rigorous imprisonment for four months under the second bead of charge. The present appeal assails the correctness of these convictions and sentences.

3. Shri Rao, learned Counsel appearing on behalf of the appellant accused, has taken me through the evidence that has been adduced by the prosecution. He pointed out to me that the deceased was married to the appellant in the year 1986 at which time the appellant’s father bad spent about Rs. 14.000/-, He had also given his daughter a sewing machine worth Rs. 1,200/- and it is his case that the Accused was constantly ill-treating the wife, that he used to consume liquor, get drunk and beat her mercilesaly, all because he was demanding a sum of Rs. 5,000/- from her parents. The situation was aggravated and the wife was required to go to her father’s place on more than one occasion and Bodayya (P.W. 1) states that he was required, in turn, to go to the village whenever the situation was out of hand and that on these occasions, he found that his daughter’s face would be swollen and that there were unmistakable signs of assault on her. In this situation all that he could do was to pacify the Accused and to ask him to behave properly. It appears that in spite of these repeated requests that there was no improvement in the situation. The contention of Shri Rao is that all this case of ill-treatment has been put out for the first time two days after the incident, that the complaint was not made at the earliest point of time and what he points out, more importantly, is that there are no complaints, letters or any other evidence on the basis of which the statement of Bodayya (P.W. 1) can be corroborated. He further sub-mils that no other family member has been examined in support of this contention. It is true that there may be no other supportive evidence, but the deposition of Bodayya, who has been cross-examined, unmistakably indicates that there is no reason whatsoever for him to falsely involve or implicate his own son-in-law, particularly since the Accused himself i related to Bodayya being bis own nephew.

4. Shrimati Laxmibai (P.W. 3) virtually concludes the entire issue, She fully corroborates the evidence of Bodayya (P.W. 1) on the aspect of repeated, persistent and consistent ill-treatment of the deceased Dhana-laxmi. She has also deposed to the fill important fact that the deceased Dhanalaxmi was severely assaulted on the night previous to the one when she committed suicide. Shri Rao submits that the evidence of Shrimati Laxmibai is vague, and secondly, that there is a lot of exaggeration in this evidence. He also contends that it appears that she is ill-disposed towards the Accused because her sympathies are with the deceased wife. This head of criticism, to my mind, would not invalidate the deposition of Shrimati Laxmibai because there is one tell-tale circumstance, namely, the fact that the condition of the body, though rather decomposed at the time of postmortem, did indicate that there were signs on the face and on the body of the deceased having been assaulted before the death. The learned trial Judge, after a very careful analysis of the material before him, has convicted the appellant-accused under both beads of charges. To my mind, there is no reason why this finding should be disturbed.

5. On the question of sentence, Shri Rao makes a strong plea that the appellant is aged only 22 years, that the sentence is unduly heavy and that, consequently, this Court should reconsider the matter. The conduct of the Accused and the circumstances of the case may not justify an unduly long jail sentence because that again has its adverse effect on the Accused. On the other hand, to my mind, the appellant-accused is entitled to a fair consideration of the sentence that would be in consonance with the facts of the case. In modification of the sentence awarded by the trial Court, while confirming the convictions, it is directed that the appellant-accused shall undergo sentence of rigorous imprisonment for three years and shall pay a fine of Rs. 5,000/-, in default, suffer rigorous imprisonment for one year for the offence under Section 306 of the Indian Penal Code and rigorous imprisonment for two years and fine of Rs. 1,500/-, in default, rigorous imprisonment for four months under the second head of charge. The substantive sentences to run concurrently. The appellant-accuccd shall be entitled to the set-off in respect of the period undergone by him in custody.

6. Shri Rao has done a good job of the appeal and that too at short notice. The fees of the learned Counsel are quantified at Rs. 1,500/-. Office shall pay the same to learned Counsel within a period of 30 days.

7. The appeal is thus partly allowed.

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