Bombay High Court Suman vs State Of Maharashtra on 28 June, 2007Equivalent citations: I (2008) DMC 449 Author: K Rohee Bench: K Rohee, S Dongaonkar
K.J. Rohee, J.
1. Criminal Appeal No. 259 of 1993 is preferred by accused No. 3 Suman w/o Pralhad Ghodke challenging her conviction for the offences punishable under Sections 498A, 306 and 304B of the Indian Penal Code and sentences thereunder passed by 2nd Additional Sessions Judge, Khamgaon in Sessions Case No. 60 of 1991 on 28.6.1993 whereas the State has preferred Criminal Appeal No. 428 of 1993 challenging the acquittal of accused Nos. 1, 2, 4 and 5. However, the appeal is admitted against the acquittal of accused No. 1 Vijay s/o. Pralhad Ghodke only.
2. P.W. 1 Shrirang s/o Yashwant Raut and P.W. 2 Sau. Vimal w/o. Shrirang Raut, resident of Bhusawal had two daughters and a son. P.W. 3 Sau. Nirmala w/o Subhash Madne is their elder daughter and Anita was their younger daughter. Anita was married to accused No. 1 Vijay s/o. Pralhad Ghodke r/o Khamgaon on 14.2.1990. After their marriage, Anita went to cohabit with her husband at Khamgaon. Accused No. 3 Suman is the mother-in-law, accused No. 4 Pralhad s/o Rangnath Ghodke is the father-in-law and accused No. 2 Raju s/o Pralhad Ghodke and accused No. 5 Pappu s/o Pralhad Ghodke are the brothers-in-law of Anita. All of them were residing jointly.
3. The case of the prosecution, in brief, is that during Diwali of 1990 Anita went to her parental house at Bhusawal and stayed there for about 4-5 days. During her stay Anita told her parents that her husband (accused No. 1 Vijay) was demanding Rs. 10,000 and her mother-in-law (accused No. 3 Suman) was demanding gold ring. The parents of Anita expressed their inability to satisfy the demand.
4. On 7.2.1991 P.W. 1 Shrirang received the letter (Exh. 19) of Anita reiterating the demand of gold ring and money. After receiving the letter P.W. 1 Shrirang went to the matrimonial house of Anita and asked her husband and mother-in-law to send Anita with him. However, they did not send her. So, he went back.
5. On 10.4.1991 the parents of Anita received message that Anita died due to burning. Hence they rushed to Khamgaon where they had to attend the funeral of Anita. Afterwards P.W. 1 Shrirang lodged report with Police Station, Khamgaon. Since no action was taken, he moved Superintendent of Police, Buldana (vide Exh. 20). On the direction of Superintendent of Police, Buldana Crime No. 118/1991 under Sections 498A and 304B r/w Section 34 of the Indian Penal Code was registered at Police Station, Khamgaon on 14.4.1991 against the accused persons. After investigation the accused was charge-sheeted. The defence of the accused persons is of denial.
6. The prosecution examined six witnesses including P.W. Shrirang (the father of deceased Anita), P.W. 2 Vimal (the mother of deceased Anita) and P.W. 3 Sau. Nirmala w/o Subhash Madne (the elder sister of deceased Anita). The trial Court found that demand of gold ring by accused No. 1 Vijay as well as cruelty to Anita on account of non-satisfaction of demand was proved against accused No. 3 Suman only. The trial Court found that Anita committed suicide. Accordingly the trial Court convicted accused No. 3 Suman and acquitted the rest of the accused. Accused No. 3 Suman has challenged her conviction whereas the State has challenged acquittal of accused No. 1 Vijay.
7. We have heard Mr. A.V. Gupta, Advocate for the appellant Suman and respondent No. 1 Vijay and Mr. D.B. Patel, APP for the State. We have also gone through the record and proceedings of the sessions trial with the assistance of the learned Counsel for the parties.
8. While challenging the conviction of accused No. 3 Suman, it was vehemently urged by Mr. Gupta that the prosecution has relied on the evidence of father, mother and elder sister of deceased Anita, who are interested being close relatives of deceased Anita. Mr. Gupta stated that no neighbour of the accused persons is examined by the prosecution though the house of the accused persons is surrounded by several houses. Thus, there is no corroboration by independent witness to the allegations of demand of money and gold ring by accused No. 1 Vijay and accused No. 3 Suman and harassment by them to Anita for non-satisfaction of the demand. In this regard it was pointed out by Mr. Gupta that Anita wrote several letters to her parents and in her earlier letters there was no complaint of harassment to her by the accused persons. Mr. Gupta further submitted that the trial Court over looked in the contradictions in the testimony of the parents of deceased Anita. Mr. Gupta, submitted that there is inordinate delay in lodging the FIR which has not been explained by the prosecution. Mr. Gupta, therefore, urged that the prosecution has utterly failed to prove the charge not only against accused No. 3 Suman but also against accused No. 1 Vijay. Hence, he submitted that accused No. 3 Suman is entitled to be acquitted and the acquittal of accused No. 1 Vijay deserves to be confirmed.
9. Mr. D.B. Patel, APP on the other hand, justified the impugned judgment convicting accused No. 3 Suman. In addition to that he submitted that the evidence against accused No. 3 Suman as well as accused No. 1 Vijay is the same and hence accused No. 1 Vijay is also required to be convicted for the offences charged. He, therefore, submitted that the appeal preferred by accused No. 3 Suman against he conviction deserves to be dismissed and the appeal against the acquittal of accused No. 1 Vijay needs to be allowed.
10. We have carefully considered rival submissions. It may be noted that the marriage between Anita and accused No. 1 Vijay took place on 14.2.1990 whereas she died on 10.4.1991. Thus the marital life of Anita ended within 14 months. The post-mortem report (Exh. 27) shows that Anita sustained burns to the extent of 97% which were ante-mortem and the cause of her death is shock due to extensive burns. The incident of burning is not challenged by the accused persons, however, it was suggested that it might be accidental burn. The trial Court has considered the cause of her death in para Nos. 10 to 12. The Trial Court has discussed the spot Panchanamas (Exhs. 25 and 34), sketch map of the spot (Exh. 26), the inquest Panchanama (Exh. 24) and the post-mortem report (Exh. 27) in details and came to the conclusion that Anita committed suicide and that it was not a case of accidental death. We fully endorse the conclusion drawn by the trial Court.
11. Since after her marriage Anita was living with her husband and husband’s relatives, it was for them to explain her unnatural death. However, they failed to give any explanation except suggesting that it was an accidental death. The said suggestion has no basis whatsoever and hence it was incumbent upon the accused persons to show as to why Anita was driven to commit suicide.
12. In this respect the evidence of the parents of Anita namely P.W. 1 Shrirang and P.W. 2 Vimal is very material. Their evidence shows that at the time of first Diwali after marriage, Anita had come to her parental house at Bhusawal and stayed there for about 4-5 days. At that time she told her parents that her husband (accused No. 1 Vijay) was demanding Rs. 10,000 and her mother-in-law (accused No. 3 Suman) was demanding gold ring. Her parents told her that they were unable to comply with the demands. P.W. 1 Shrirang reached Anita at her matrimonial house and at that time accused No. 3 Suman demanded gold ring from him. P.W. 1 Shrirang told her that there was no agreement to give gold ring and that he was unable to give it.
13. Their evidence further shows that on 7.2.1991 they received letter (Exh. 19) from Anita. A bare perused of the said letter shows that she made a complaint that though she had sent 2-3 letters, they did not send reply to any of the letters. She insisted them to make arrangement for gold ring before they come to take her to Bhusawal. The letter show that as the demand for gold ring and money was not being complied with, she was being harassed. She was pulling on each day with great difficulty. She mentioned out of frustration that she would live till she is able to sustain and she would take extreme step on the day the harassment would be beyond tolerance. Thus from the said letter it is apparent that Anita was being harassed for non-compliance of the demand for money and gold ring. Obviously that was by her husband and mother-in-law. Merely because no such complaint was made by her in the previous letter, it cannot be inferred that the allegations in Exh. 19 are not trustworthy. On the contrary it indicates that Anita did not make complaint till she could bear the harassment. It may be remembered that from first Diwali after Anita’s marriage when she had been to her parental house she told her parents about the demand of Rs. 10,000 by her husband and gold ring by her mother-in-law. It seems that as the demand was not fulfilled by the parents of Anita, Anita had to face harassment at the hands of her husband and mother-in-law. She did not make complaint about harassment in her earlier letters till she could endure the harassment. She wrote the letter (Exh. 19) only when the harassment became unbearable. Ultimately she committed suicide because she could no more tolerate the harassment.
14. The trial Court observed that the contents of the letter (Exh. 19) strongly indicate that Anita was subjected to harassment because of non-compliance of demand for gold ring. However, the trial Court failed to appreciate that the harassment was not only for non-compliance of demand for gold ring but also non-compliance of demand for money. It may be remembered that gold ring was demanded by the mother-in-law of Anita and money was demanded by the husband of Anita. Hence both of them are liable for the charges levelled against them.
15. There are certain omissions in the evidence of P.W. 1 Shrirang and P.W. 2 Sau. Vimal. However, they are not so material so to affect the credibility of their testimony. The trial Court was not justified in acquitting accused No. 1 Vijay (the husband of Anita).
16. It is true that besides the parents and elder sister of deceased Anita, no other independent witness was examined by the prosecution. However, it may be noted that there is a tendency in the neighbours of the matrimonial house of a newly married bride not to come forward to support the prosecution. Hence merely because no neighbour of the accused is examined, the testimony of the parents of deceased Anita cannot be rejected. The relatives of deceased Anita cannot be said to be interested merely because they are her close relatives. We find that the evidence of the parents of deceased Anita is quite trustworthy.
17. It is true that though the incident took place on 10.4.1991, the offence came to be registered on 14.4.1991. However, the said delay in registering offence has been properly explained by P.W. 1 Shrirang by stating that since the police officials at Khamgaon did not pay attention, he had to move Superintendent of Police, Buldana and on the direction of Superintendent of Police, Buldana offence came to be registered. Thus the delay in registering offence has been properly explained by the prosecution and the accused cannot take advantage of the so-called delay.
18. We are aware that in Criminal Appeal No. 428/1993, we are dealing with an appeal against acquittal and the principle that the appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so, vide (2007) 1 SCC (Cri.) 50, V.N. Ratheesh v. State of Kerala. In the present case, the letter (Exh. 19), written by the deceased, clearly indicates that the deceased was not accorded protection by her husband, accused No. 1 Vijay. The tenor of the letter clearly shows that the mother-in-law i.e., convict-appellant in Criminal Appeal No. 259/1993 was making demands of ‘ring’ not for herself but for the husband. The Court would be failing in its duty in not drawing the inference which is absolutely warranted from the contents of the said letter against the husband i.e., appellant/accused No. 1 Vijay. Therefore, when in this case his mother has been convicted and he has been acquitted by the learned trial Judge and conviction of the mother is being confirmed, there is compelling reason to interfere with the said judgment of acquittal. In the result, we find that the appeal preferred against conviction by accused No. 3 Suman deserves to be dismissed and the appeal preferred by the State against acquittal of accused No. 1 Vijay deserves to be allowed. We, therefore, pass the following order.
19. Criminal Appeal No. 259 of 1993 is dismissed. The conviction of accused No. 3 Sau. Suman w/o. Pralhad Ghodke is confirmed. Her bail bond stands cancelled. She is directed to surrender within four weeks.
20. Criminal Appeal No. 428 of 1993 is partly allowed as regards accused No. 1 Vijay only. The acquittal of accused No. 1 Vijay s/o Pralhad Ghodke is set aside. He is found guilty for the offences punishable under Section 498A, 306 and 304B of the Indian Penal Code. He is directed to remain present before the Court on 12.7.2007 for hearing him on the question of sentence.
Accused No. 1 Vijay Pralhad Ghodke is present with his Counsel Mr. A.V. Gupta, Advocate. Accused No. 1 Vijay states that after the death of his first wife he remarried and he has got children from the second wife. He is to maintain his wife and children and hence leniency should be shown to him. Mr. Gupta, the learned Counsel for accused No. 1, submitted that the offence in question took place way back in 1991. Thus more than 15 years have elapsed after the incident. There has been increase in the responsibility of accused No. 1 towards his family. In view of these circumstances, leniency should be shown to him.
21. Taking into consideration the above submissions and the fact that accused No. 3 Suman (the mother of accused No. 1 Vijay) whose conviction for the same offences as well as sentence thereunder has been confirmed by this Court, we propose to impose the same punishment on accused No. 1. Hence we pass the following Order:
(i) Accused No. 1 Vijay is sentenced to suffer R1. for one year and to pay fine of Rs. 250 in default to suffer R.I. for one month for the offence punishable under Section 498A of IPC.
(ii) He is sentenced to suffer R.I. for three years and to pay fine of Rs. 250 in default to suffer R.I. for one month for the offence punishable under Section 306 of IPC.
(iii) He is sentenced to suffer R.I. for seven years for the offence punishable under Section 304B of IPC.
(iv) The substantive sentences under all the sections shall run concurrently.
(v) Time to surrender is granted till 28th of July, 2007 on the request of the learned Counsel for accused No. 1 Vijay.