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Sarojakshan Shankaran Nayar, And -vs- State Of Maharashtra on 17 August, 1994

Bombay High Court Sarojakshan Shankaran Nayar, And -vs- State Of Maharashtra on 17 August, 1994
Equivalent citations:1995 (2) BomCR 47, (1995) 97 BOMLR 859, 1995 CriLJ 340
Author: V Bahuguna
Bench: V M Bahuguna

JUDGMENT

Vijay Bahuguna, J.

1. The Appellants herein have been convicted by the Additional Sessions Judge, Pune, for offence under Section 498A of the Indian Penal Code. Appellant No. 1 has been awarded R.I. for a period of six months and to pay fine of Rs. 1000/- and in default, to suffer further imprisonment of 15 days. Appellants Nos. 2 and 3, who are father and mother respectively of Appellant No. 1, have been sentenced to suffer S.I. till rising of the Court and pay a fine of Rs. 500/- and in default suffer 10 days R.I. The Appellants were acquitted of the charge under Section 302 IPC against which the State has preferred an appeal.

2. Deceased Rajaeshwari was married to the 1st Appellant on 24-8-1977 at Madras and after marriage she was living with her husband and in-laws at Vadgaon-sheri, Pune. She died of extensive burns injuries between 9.30 and 10.00 p.m. on 4-7-1981 at her residence. The Appellants were tried for offence under section 302 r/w. S. 498A of the IPC but the learned Addl. Sessions Judge giving benefit of doubt acquitted the Appellants from the charge under section 302 IPC for having committed the murder of deceased Rajeshwari. The Appellants were however convicted and sentenced under section 498A of the IPC as stated above.

3. Section 498A of the IPC extends protection to the woman from the whims and caprices of man. This section was incorporated in the statute to fill in the lacuna in the existing law, so that if the wife commits suicide, the guilty does not escape. ‘Cruelty’ as defined in section 498A means “any wilful 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, or harassment of the woman where such harrassment is with a view to coercing her or any person related to her to meet any unlawful demand, for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” The expression ‘cruelty’ takes within its sweep both mental and physical agony and torture. The concept of cruelty varies form place to place and individual to individual and according to the social and economic status of the person involved. The question whether the act complained of was an act of cruelty has to be determined from the whole fact and relationship between the parties. The cultural and temperamental state of life among them are factors from where the cruelty has to be inferred and will depend on the facts of each case. The expression cruelty postulates such a treatment as to cause reasonable apprehension in the mind of the wife that her living with the husband will be harmful and injurious to her life. Therefore, to decide the question of cruelty the relevant factors are the matrimonial relationship between the husband and wife, their cultural and temperament status in life, state of health, their interaction in their daily life which dominate the aspect of cruelty.

4. In this background of the legal position, we proceed to examine the evidence on record to satisfy ourselves in regard to the correctness of the judgment of the learned trial Judge. We have heard the Counsel for the Appellant and for the State.

5. The prosecution story in a nutshell is that the deceased Rajeshwari married with the Appellant No. 1 on 24-8-1977 at Madras and after the marriage she was living with her husband and his parents and given birth to a child who is now 8 to 9 years old. The incident took place on 4-7-1988 between 8.30 and 10.00 p.m. Deceased Rajeshwari was found dead with extensice burn injuries in the toilet of her residence at Pradhikaran Section No. 27/A, Nigdi. The prosecution story as it unfolds from the evidence is that the deceased Rajeshwari was subjected to harrassment, insult, and torture by the Appellants and there were frequent quarrels. The deceased had to leave her job as a Stenographer in a private company. Thereafter again she got a job in Maharashtra Capacitors at Pune, which also she was compelled to leave as her husband was suspecting her character and was calling her a prostitute. The 1st Appellant was a person of highly suspicious nature and suspected the character of his wife Rajeshwari and quarreled with her on petty issues. On 4-7-1987 at late hours the deceased was found dead in the toilet and a report of the said incident was given by the 1st Appellant. After investigation the Appellants were tried for the offence of murder punishable under Section 302 and also under section 498A of the Indian Penal Code. In support of the prosecution case, the following witnesses were examined :-

Madhav Shankar Purandare (P.W. 1), Balkrishna Keshavan Nayar (P.W. 2), Sujata Madhav Purandare (P.W. 3), Pharurkrishna Narayanaswami (P.W. 4), Aparna Madhav Purandare (P.W. 5), Pramila Ramchandra Nayar (P.W. 6), Kumud Madhukar Samant (P.W. 7), Laxmi Keshavan Nayar (P.W. 8), Sarla Narayan Nayar (P.W. 9), Mrs. Ramni Ravi Menon (P.W. 10), Umesh Madhav Purandare (P.W. 11), Chandrakant Tabaji Dere (P.W. 12), Rajaram Radhakrishna Iyer (P.W. 15), Palliyil Unnira Sriniwasan (P.W. 14), Arun Dattatraya Walture (P.W. 15), Sambhaji Dattoba Chobe (P.W. 16).

6. The Defence also examined the following witnesses in support :-

Smt. Ujawala Balwant Godbole (D.W. 1) and Dr. Arun Dattatrya Daware (D.W. 2).

7. The learned Sessions Judge after considering the evidence acquitted the Appellants from the charge under section 302 IPC. We find that the verdict of acquittal passed by the learned Sessions Judge is based on correct appreciation of evidence and we endorse the reasoning given by the learned Sessions Judge for acqutting the Appellants of the charge under section 302 IPC.

8. In the present appeal, we confine only to the correctness of the conviction and sentence awarded to the Appellants under Section 498A of the I.P.C. Apart from the oral evidence, the prosecution has placed reliance on a series of letters written by the deceased to her mother and other relatives to establish the aspect of cruelty inflicted on the deceased by the Appellants. The letters were written in Tamil language and the said letters had been translated into English and have been referred to and discussed by the learned Sessions Judge in his judgment. There are many letters, but we are referring to only few of them. These letters throw light on the state of mind and psychological nature of the deceased Rajeshwari as also the cruelty and torture she had to suffer during her association with Appellant No. 1. The relevant portion of the letter dated 24-6-1987 written by the deceased Rajeshwari to her sister is to the following effect.

“The situation here was good. Babu speaks about me in such foul language which cannot be written here. He used to address me as a prostitute. Now I will not live here and make effort for getting a job. Mrs. Samant will help me in getting house accommodation. She will also give utensils. From tomorrow tutions will be taken and Rs. 100/- will be earned . If Mammi came here whether Babu will cohabit with his wife Radha. These people speaks in filthy language. In order to avoid the same the alternate way is to go elsewhere or to die but I will not die as Kunal wants to live with me and I decided to educate and grow up him.”

Another letter is of July 1987, which is reproduced below :-

“Received your letter dated 27th. Do not worry whatever happened here was not happened because of your arrival. It always happens here. By this time it has happened more only. I will not fear, these peoples have behaved with you only in such manner. They are good with Kannan. They pick up quarrel with me on petty causes. They do not talk with me. I used to take tutions to two students in the evening from 6.00 p.m. to 7.00 p.m. I earn Rs. 200/-. I am making efforts to get a job. I will not leave the house at my own accord. I will leave the house only if they drove me away. These peoples have no humanity. I will go in Court in case they quarrelled with me hereinafter. You do not care about me and also tell to Mammy. I will inform you by telegram if these people act beyond the control.”

The next letter is at Exh. 31-E written by the deceased to her mother, which is reproduced below :-

“When Balan came here my husband saying that Balan wasted lot of water, when I went to station to give key which he had forgotten. Balan told Kannan ask your father to behave like a man. Kannan came and told exactly what has been told. That has also become one more reason. Even otherwise he is in habit of quarrelling. One more due to Balan also. He has made me write for Balan’s apology letter. He says, there is no relation between Babu and me. He abused me. Mother God is there for me. When I am called a whore and accused that I smile at every male. I got frustrated and also spoke in anger. If he is going to kick me out of house, I am not going to go at my own accord. Mother please do not get worried. This is a usual occurrence here. Therefore, I did not write immediately. But after all these happenings, I do not want to hide it from you. I am very brave. Therefore, do not get frigthened. If there is fighting we will see. Now I am giving tution to teach children and earn Rs. 200/- per month. I have decided to take up a job. If I stay at home I will become mad and therefore, I have decided to work. I have carried on for three years but what is the result mother ? Now there is no fight but nobody is speaking with me. When my son comes, my time passes well. My son is fine. I am eating regularly and I am perfectly O.K.”.

The next letter is dated 5-7-1987 which is at Exh. 34, and it is addressed by the deceased to her mother and brother Balan, which is reproduced below :-

“Hope you might have sent letter to Babu. Any way he is elder than you. Do not feel bad to write. He is waiting for your letter. He is not talking with me also. He is only asking Babu’s letter has come or not ? Why you told Kannan to tell Babu to behave like a man. Kannan knows nothing. He told exactly what you told him to tell Babu. After hearing that word he is angry with me and you. Before that he was O.K. Our bad luck Kannan remembered those words and told Babu like a parrot. You might not told like that. Anyway past is past. Kindly excuse me for writing you to write to Babu. Then what to do ? I have to live here because of Kannan. So because of me, please write soon a line of letter to Babu if you did not write still O.K. So sorry for writing like this. Everything has come because of me. I think. You give me any punishment, but do not stop writing letters to me and Kannan (even more care). I will be so sad if you did not write letter to us. Already your life is not happy. In between I have given worries to you. For this sorry Balan. I can cry only except doing nothing. I too decided to live like your life (alone) ……. Do not tell anything to Amma.”

At this stage it is important to note the letter written by Appellant No. 1 to the mother of the deceased which is dated 3-7-1987 and which is reproduced below :-

“My dear Amma,

I am writing you this letter even though you cannot read this. But the stage has come how to decide once for all. After your returning to Kashipalayam everything is going smoothly here. Balan came to Pune. To my surprise I came to know that he came here with some bad intention. To spoil my family life, when I had been to Pankaja’s house he has done unwanted things in my house. Only when my mother told to stop the water from wash basin he pretended as he was insulted and cancelling the reservation he ran away. I requested him not to go. But when he was decided to quarrel in he did not listen to me.

But I would not have minded it but at station Balan told Kannan that his father is not a man, and tell your father to be a man. I want to ask him after 10 years of my married life he came to know that I am not a man. He is insulting his sister herself. Ask him, if I am not a man then from whom Kannan was born ? This means that Kannan is not my son. His sister is of bad character. So he doubts whether Kannan is my son.

I want that Balan should ask apology to me. Otherwise I do not wish to continue myself and Raji’s relations. I will put this reason that Raji’s brother only supports that whether Kannan is her husband’s son and she is of bad character.

After Balan’s returning from Pune myself and Raji are not in good terms. You tell Balan that for his mistake his sister will get punishment. I will divorce her. I have got Raji’s letter with all mistakes mentioned in writing and signed by her when she had realised her mistakes once. I have got every proof if I want to proceed further, i.e. rerox copy of Babu’s letter came to her from Madras.

I know up to what extent Balan is man. Otherwise his wife would have not gone to Kerala frequently. Telling to a small child like Kannan also show his madness.

Raji is also telling that she is leaving the home. So many persons told me what she speaks about me. All dirty and ugly things she is telling peoples, which is shameful on her part.

If I have got no reply from you, I will take it granted that you have nothing to say about this. I cannot bear now these insults more. I will be free to take my decision at this stage. I want to make end of all, these relations.

Babu.”

From reading of the aforesaid letters, it is established that Appellant No. 1 was deliberately insulting his wife deceased Rajeshwari in filthy language by addressing her as prostitute and was driving her to choose whether she would like to get divorce or to commit suicide. It also shows that the deceased Rajeshwari was under great mental agony and the Appellant No. 1 had made the life miserable for her. Appellant No. 1 was also quarreling with her on petty matters and was not allowing her to lead a respectable and honourable life. Appellant No. 1 had no respect or regard for her and went to the extent of calling his wife a prostitute. She was so afraid on account of the attitude of the 1st Appellant, that she was requesting her parents to write letter to her at different address. She was narrating her plight but expressed her desire to live and face the situation bravely. It is apparent that the deceased was highly emotional and was frustrated on account of the illtretment meted out to her at the hands of her husband Appellant No.

1. The deceased Rajeshwari was subjected to cruel treatement and was given waste food and was not allowed to earn her own livelihood. As a result of this mental torture and agony she ended her life on 4-7-1987. The Appellants have produced a letter alleged to have been written by deceased Rajeshwari at Exh. 41-D and the relevant portion thereof is quoted below :-

“If possible for mother, take away Kannan and grow him. For my death none is the cause.”

Kannan is the son of Rajeshwari. The mental torture and agony which deceased Rajeshwari underwent in her association with Appellant No. 1 is reflected not only from the letters written by her to her brother and mother before her death, but also in the oral testimony of the neighbours and the employer with whom she had been working. In this regard testimony of P.Ws. 3, 4, 7, 10, 11 and 12 is very relevant.

9. P.W. 3 Sujata is a neighbour residing opposite to the house of the Appellant. Her evidence pertaining to the offence under Section 498A is to the effect that the deceased Rajeshwari had been complaining from 1985 to her that Appellant No. 1 was ill-treating her and used to beat her often and gave her waste food. The testimony of P.W. 4 Pharurkrishna, who is also a neighbour of deceased, is that she used to tell him about the harassment meted out to her by Appellant No. 1 and that he used to quarrel with her and was not allowed to move with friends and even suspected her chacter. P.W. 7 Kumud also deposed that the deceased Rajeshwari complained to her about the harassment meted out to her by Appellant No. 1 and her-inlaws and the Appellant No. 1 was suspecting her character. Appellant No. 1 did not allow her to work. According to the witness, Rajeshwari was being treated as a servent and was leading an insulted life. Following excerpt from her testimony is very relevant to note and is reproduced :-

“She complained to me that she gets treatment like made-wife in her house. Nobody is speaking with her. She has to attend all domestic work including cooking. The accused did not allow her to have meal with them. All the Accused take their meal and if any food is remained, then it is given to her. So many times, she remained with empty stomach. While she was complaining this to me, she was weeping.”

P.W. 8 Laxmi is the mother of the deceased and she has also given a vivid account of the trauma in which the deceased Rajeshwari was living ever since her marriage to the 1st Appellant. She stated that the deceased told her that Appellant No. 1 suspected her character and insulted her in filthy language and for this reason was wanting to leave the company of Appellant No. 1, but on account of her persuasion, she continued to live with Appellant No. 1. She also deposed that the deceased Rajeshwari was subjected to inhuman treatment and was not given proper food and was ill-treated. She has referred to the various letters which had been addressed by the deceased to the family members narrating her predicament. P.W. 9 Sarla was an acquaintance and family friend of the Appellants. She belongs to the same community. She has deposed that the 1st Appellant used to call Rajeshwari a prostitute and suspected her character and compelled her to leave the job. The deceased was not being provided with any money for her personal expenses and was subjected to beating and she was disgusted on account of the physical and mental torture and humiliation in which she was living. P.W. 10 Mrs. Ramani is also a neighbour and belongs to the same community and was a Tamilian. She in her deposition stated that she was friendly with the deceased Rajeshwari and that the deceased told her that the 1st Appellant used to beat her and was not giving her proper food and suspected her character and she was not being provided with money for her day to day requirements and was not allowed to earn her livelihood. The 1st Appellant used to call Rajeshwari prostitute. The deceased Rajeshwari was frequently visiting the house of P.W. 10 Mrs. Ramani and had conveyed to the witness her plight in the evening of the fatefull day when she committed suicide in the toilet. P.W. 11 Umesh is also a neighbour and he has also deposed that the deceased Rajeshwari used to complain in his presence to his mother that the Appellants used to harass her, assault her, calls her prostitute and was not allowing her to lead a normal life. P.W. 12 Chandrakant is a factory owner where the deceased Rajashwari had worked and has deposed that the deceased Rajeshwari had joined his company in the year 1981 as a Typist and after three years she left the job. He has further deposed that she was compelled to leave the job as the Appellants suspected her character and created impossible conditions for her to work. P.W. 15 Arun was the P.S.I. attached to Pimpri Police Station who investigated the case.

10. The significant feature of the above oral evidence is that the witnesses are independent, most of whom are residing in the neighbourhood and have been on friendly terms with the Appellants and the deceased Rajeshwari. There is no reason for them to depose falsely and to implicate the 1st Appellant for offence under Section 498A IPC. Some of them even belong to the community of the deceased Rajeshwari and it is likely that she would express her agony and sorrows to her friends and neighbours. The veracity of the evidence of the witnesses referred to above has not been shattered in the cross-examination and we are inclined to place reliance on their testimony with regard to the mental torture and humiliation in which the deceased Rajeshwari was made to live in the company of Appellant No. 1. The oral evidence fully corroborates the letters written by the deceased Rajeshwari to her family members and friends and we have no doubt in mind that the contents of the letters and the oral evidence go to prove and establish beyond the realm of doubt that Appellant No. 1 had made life difficult for the deceased Rajeshwari and deliberately demeaning her, insulting her, calling her prostitute, suspecting her, character, not allowing her to meet friends and was not being given any respect at home. She was also deprived and denied respectable living and other comforts at home which a married woman expects in the house of her husband. The deceased Rajeshwari belongs to a conservative family and had on several times conveyed her desire to free hereself from this bondage. It was on account of the persuasion of her mother that she was trying to make the marriage work but to her dismay and frustration she could not stand humiliation and agony meted out to her by her husband and in frustration and disgust she committed suicide by pouring kerosene onn her and put hereself on fire. The social and religious background of a conservative lady is relevant factor which has to be kept in mind in deciding the aspect of cruelty and its magnitude. Torture was definitely of such a nature which could drive an emotional lady nursing orthodox views on the subject of marriage to end her life rather than suffer harassment and ridicule in society.

11. Counsel for the Appellants laid great stress and emphasis on the evidence of D.W. 2 the family Doctor Dr. Arun. His statement was recorded by the investigating Officer but was not examined by the prosecution. The Appellants examined him as a defence witness. Dr. Arun in his deposition stated that he has been treating deceased Rajeshwari for depression and that the deceased had told him that tension in the marriage life arose due to the difference between her brother and husband and as a result of continued quarrel between her husband and brother, she told him that she does not want to live and wants to die. The witness has stated that she was mentally depressed and had suicidal tendency and had suggested that she should be examined by a psychiatrist. The defence also relied upon Exh. 36 a letter written by the deceased to the 1st Appellant that she would not make any attempt to commit suicide. The contents of the letter read thus :-

“I wish to give following commitments before Mr. S. S. Nayar.

(1) Ten times without any reason I have threatened you making attempts to suicide myself which was my madness. I will not do again.

(2) I will not disobey or insult elder people at home.

(3) I will not do any thing without your wish and permission.

(4) I will not go frequently to neighbour’s house and complain against you.

(5) I will not listen bad advices mentioned by my mother sister in their letters. You too should not listen bad advices of your parents.

(6) I will try to make happy all members in my family.

And submit that.

If you observe and things mentioned above at Sr. Nos. (1) to (6) are not observed by me or willingly tried to neglect, you are free to ask separation from me and that time I will not claim.”

A reading of the above letter shows that at the behest of someone this letter was obtained by the 1st Appellant from the deceased Rajeshwari. As this letter was produced by the Appellants burden lay on them to show the circumstances and background in which the undertaking was obtained from the deceased. The testimony of the Doctor and contents of Exh. 36 would clinch the issue against the 1st Appellant. The Appellant No. 1 was aware of the fact that the deceased Rajeshwari was a sensitive and emotional person and was leading a depressed and frustrated life and had made an attempt to commit suicide. Knowing very well the mental frame of his wife, the 1st Appellant did not change his attitude and made his behaviour towards his wife worse. He continued to humiliate, insult her and made her life miserable. The continued mental torture meted out by the Appellant to the deceased Rajeshwari was nothing, to say the least, but an attitude which ultimately forced his wife to commit suicide rather than to lead a miserable life in his association. In the above circumstances and evidence on record, we endorse the reasoning given by the learned Sessions Judge in convicting Appellant No. 1 for offence under Section 498-A of the I.P.C. and we dismiss the appeal so far as he is concerned. However, we do not find any sufficient evidence or material on the basis of which charge for offence under Section 498-A can be proved against the Appellants Nos. 2 and 3 i.e. the father and mother of Appellant No. 1. The letters written by the deceased Rajeshwari as also the evidence of the neighbours do not throw sufficient light on the aspect of mental torture meted out to the deceased by the said Appellants Nos. 2 and 3. In the absence of sufficient evidence, we are inclined to allow the appeal filed by Appellants Nos. 2 and 3. The judgment and order of the learned Sessions Judge convicting Appellants Nos. 2 and 3 for offence under section 498-A are set aside. The conviction and sentence recorded against Appellant No. 1 is however maintained and the appeal of Appellant No. 1 is dismissed. Appellants Nos. 2 and 3 are acquitted of the charges under Section 498-A of the I.P.C.

12. In the result, the appeal filed by Appellant No. 1 is dismissed and appeal of Appellants Nos. 2 and 3 are allowed. The judgment of the learned Sessions Judge is accordingly modified. Appeal partly allowed.

13. Order accordingly.

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