Bombay High Court Vasanta Tulshiram Bhoyar-vs-State Of Maharashtra on 23 September, 1986
Equivalent citations:1987 (1) BomCR 668
Bench: G Loney
The appellant has preferred this appeal against the order of the conviction and sentence passed by the Additional Session Judge, Akola dt. 4-12-1984 in Session Case No. 67 of 1984. The appellant has been convicted under S. 306 I.P.C. and has been sentenced to R.I. for two years and fine of Rs. 200/-, in default R.I. for one month. The appellant has also been convicted under S. 498-A, I.P.C. and has been sentenced to R.I. for one year and a fine of Rs. 100/-, in default R.I. for 15 days under that section. Both the sentences to run concurrently.
2. Shri R. B. Pendharkar, Advocate (Appointed) appeared for the appellant and Shri G. D. Patil, Assistant Public Prosecutor, appeared for the respondent-State.
3. The prosecution case in brief is that the appellant was married with Manda on 27-5-1983. It is alleged that some dowry was also paid to the appellant. On the next day of the marriage, a religious function ‘Satyanarayan’ was arranged at the house of Manda’s parents. The said pooja was to be performed by the appellant and Manda. It is alleged that even at the time, the appellant was under the influence of liquor and was not able to take his care. Thereafter Manda went to live with the appellant at his house. According to the customs, at the time of Ashadhi Ekadashi in 1983 Manda had gone to the house of her parents. During her stay there, she narrated to her brother, P.W. 1 Pralhad that the appellant was demanding a bicycle or the equivalent amount to purchase a bicycle. She further told that the if the demand was not satisfied, Vasanta has threatened to kill her. Thereafter, whenever Manda visited her parents’ house, she narrated the ill-treatment meted to her by Vasanta on account to his addiction to drinking. She also alleged ill-treatment from her mother-in-law and her father-in-law. On one occasion, Manda happened to meet P.W. 4 Padmini at S.T. bus stop where Padmini witnessed that the accused gave a slap to Manda. On that the occasion also, Manda told Padmini that she was slapped by the her husband Vasanta because be wanted that Manda should bring money from her sister. Thereafter, Manda happened to go to her parent’s house when an injury was noticed on her leg. On enquiry she told that the said injury was caused by the her husband Vasanta by throwing a stone at her under the influence of liquor. These are the instances put forth by prosecution to indicate cruelty and the harassment meted to Manda at the instance of appellant Vasanta. Initially, Manda and Vasanta stayed in the same house where the parents of Vasanta were living. But later on, they two resided separately.
4. The incident in question took place on 12-2-1984, On that day in the morning, Manda left the house of her husband under the pretext that she was going for answering the call of the nature. She did not return to her house. On the same day. P.W. 1 Pralhad, Manda’s brother, received a message that Manda is missing. So he visited the village Bitoda on the same evening. He searched Manda, but she could not be found. On 13-2-1984, P.W. 1 Pralhad lodged an oral report at Assegaon police station vide A Exhibit 7. A station diary entry at Sr. No. 12 of this report has been taken by the police. In his report, P.W. 1 Pralhad has described ill-treatment meted to his sister by Vasanta and had expressed that on account of the ill-treatment, Manda must have left the house, but was not found on that date. On 14-2-1984, Manda’s dead body was noticed in a well near village Bitoda, P.W. 9 Gangaram Thakre, the police patil of the village reported this fact of finding the dead body of Manda to Assegaon police station. His report is at Exhibit 28. On the basis of this intimation, the police registered an offence under S. 306 I.P.C. against the accused vide Exhibit 31. P.W. 11 Onkar was the Police Officer in charge at the Assegaon Police Station who took up the investigation. After registration of the crime against the accused, he arranged to take out the dead body of Manda from the well. After making a panchanama and after making inquest on the dead body, he sent the dead body for post-mortem examination. He also recorded the statement of P.Ws. Pralhad, Pandurang Tulsiram and others on 14-2-1984. On 19-2-1984, he recorded the statements of the prosecution witnesses Padminibai, Vithal, Govinda and others. The accused was arrested on 14-2-1984. After investigation, a charge-sheet was submitted in the Court and a charge at Exhibit 4 was framed against Vasanta under Ss. 306 and 498-A, I.P.C. The accused denied his guilt and claimed to be tried. The prosecution examined to be tried. The prosecution examined as many as 11 witness. The learned trial Court held Vasanta guilty of the offence mentioned above and sentenced him to suffer various punishments stated earlier. The appellant has approached this Court challenging the conviction and sentence imposed on him by trial Court.
5. Shri Pendharkar, the learned Counsel for the appellant, contended before this Court that S. 498-A, I.P.C. by way of amendment, was operative from 25th December, 1983. Similarly, S. 113-A, Evidence Act, which provides for a legal presumption, was also effective from the same date i.e. 25-12-1983. According to the Shri Pendharkar, the aforesaid two amendments are prospective in nature and any instances of cruelty, prior to the commencement of the aforesaid amendments cannot be taken into consideration to establish the guilt of the appellant. Shri Pendharkar, has submitted that the marriage of appellant Vasanta with Manda was solemnised on 27-5-1983, prior to the commencement date of the amended provisions. The incident in question took place shortly after two months and some days after the amendment came into force. The prosecution has led evidence regarding the instances of the cruelty prior to the date of the commencement of the amended provisions, Shri Pendharkar, therefore, submitted that the conviction of the appellant recorded by the trial Court is vitiated as the instances of cruelty are of the period prior to the date of amendment of the aforesaid provisions. It is the connection of Shri Pendharkar that the amended S. 498-A, I.P.C. is a penal provision and no presumption under the provision of the S. 113-A, Evidence Act, can be raised to establish cruelty on the basis of the instances prior to the date of amendment. According to Shri Pendharkar, if conviction is based relying on the incidents of cruelty prior to the date of amendment, i.e., 25-12-1983, it would be giving retrospective effect to the amended provisions of S. 498-A, I.P.C., as well as to S. 113-A, Evidence Act. He further submitted that whatever the instances established by the prosecution from the date of amendment till the date of the incident within two months are really insufficiently to base the conviction.
6. The legal proposition raised by Shri Pendharkar need to be considered first before approaching the case of the appellant on merits. According to Shri G. D. Patil, the learned Assistant Public Prosecutor, the contentions of Shri Pendharkar are not well founded. Shri Patil submitted that if the instances of cruelty are drawn from the period prior to the commencement date of the amended Act, it does to make the aforesaid provision retrospective. According to Shri Patil the instances of cruelty in this case committed by the appellant prior to the date of amendment can be successfully taken into the consideration and the learned trial Judge is right in reaching the finding on the basis of the instances prior to the commencement date of the amended provisions. In support of his contention. Shri Patil placed reliance on a decision , Sajjan Singh v.
State of Punjab, in which similar situation arose when the Prevention of Corruption Act, 1947 was amended. The accused Sajjan Singh in that case was put on trial for acquiring disproportionate assets to his known sources of income on the basis of provisions under S. 5(2), Prevention of Corruption Act, 1947. The aforesaid Act came into force on 11th March, 1947. It was, therefore, contended before the Court that the disproportionate assets known to his sources of income after the commencement of the aforesaid Act can only be taken into consideration. To think otherwise, it was argued, would mean to give the said Act retrospective operation and for that purpose, there is no justification. Accused Sajjan Singh was convicted. In appeal the two learned Judges of the Punjab High Court different on the question whether pecuniary resources and property acquired by Sajjan Singh prior to 11th March, 1947 when the Prevention of Corruption Act came into force, could be taken into consideration for the purposes of S. 5(3) of the said Act. However, the learned Judge affirmed the conviction of Sajjan Singh. It was argued on behalf of the appellant Sajjan Singh that the disproportionate assets acquired by accused Sajjan Singh prior to 11th March, 1947 could not be taken into consideration since it would mean to construe the provisions as retrospective. The Supreme Court did not agree with this view of the matter and held that :
“The Act has no retrospective operation. To take into consideration the pecuniary resources or property in the possession of the accused or any other person on his behalf of the which are acquired before the date of the Act is not in any was giving the Act a retrospective operation. A state cannot be said to be retrospective because a part of the requisites for its actions is drawn from a time antecedent to its passing. , Ref.”
The Supreme Court, in arriving at the aforesaid proposition, referred to earlier decisions of the Supreme Court
in the matter of State of Bombay (now Maharashtra) v. Vishnu Ramchandra. In this case, the Supreme Court has held that :
“The cardinal principle is that statutes must always be interpreted prospectively, unless the language of the statues makes them retrospective, either expressly or by necessary implication. Penal statues which create new offences are always prospective, but penal statutes which create disabilities, though ordinarily interpreted prospectively, are sometimes interpreted retrospectively when there is a clear intendment that they are to be applied to past events. The reason why penal statues are so construed was stated by Erle C.J. in Midland Rly. Co. v. Pye, (1861) 10 CB NS 179 at P. 191 in the following words :
“Those whose duty it is to administer the law very properly guard against giving to an Act of Parliament a retrospective operation, unless the intention of the legislature that it should be so construed is expressed in clear, plain and unambiguous language; because it manifestly shock one’s sense of justice that an act, legal at the time of doing it should be made unlawful by some new enactment.”
This principle has now been recognised by our Constitution and established as a Constitutional restriction on legislative power.
(7) There are, however, statues which create no new punishment, but authorise some action based on past conduct. To such statutes if expressed in language showing retrospective operation, the principle is not applied. As Lord Coleridge C.J., observed during the course of argument in Rex v. Birwistle etc. JJ., (1889) 58 LJ MC 158 :
“Scores of Acts are retrospective, and may without express words be taken to be retrospective since they are passed to supply a cure to an existing evil.
Indeed, in that case which arose under the Married Women (Maintenance in Case of Desertion) Act, 1886, the Act was held retrospective without express words. It was said :
“It was intended to cure an existing evil and to afford to married women a remedy for desertion, whether such desertion took place before the passing of the Act or not.”
(8) Another principle which also applies is that an Act designed to protect the public against acts of a harmful character may be construed retrospectively, if the language admits such an interpretation, even though it may equally have a prospective meaning. In Queen v. Vine, (1875) 10 QB 195 which dealt with the disqualification of persons selling spirits by retail if convicted of felony, the Act was applied retrospectively to persons who were convicted before the Act came into operation, Cockburn, C.J. observed :
“If one could see some reason for thinking that the intention of this enactment was merely to aggravate the punishment for felony by imposing this disqualification in addition, I should feel the force of Mr. Poland’s argument, founded on the rule which has obtained in putting a construction upon statutes that the when they are penal in their nature they are not to be construed retrospective. But here the object of the enactment is not to punish offenders, but to protect the public against public houses in which spirit are retailed being kept by the person of doubtful character. On looking at the Act, the words used seems to import the intention to protect the public against persons convicted in the past as well as in future; the words are in effect equivalent to ‘every convicted felon’.”
In the same case, Archibald J. expressed himself forcefully when he observed :
“I quite agree, if it were simply a penal enactment, that we ought not to give it a retrospective operation; but it is an enactment with regard to public and social order and infliction of penalties is merely collateral.”
In my view, the legal propositions laid down in the aforesaid decisions of the Supreme Court afford great assistance to understand the amended S. 498-A, I.P.C. with regard to public and the social order. The combined effect of language of S. 498-A, I.P.C. read with the legal presumption provided under S. 113-A, Evidence Act, makes it clear that the statutes permit to draw past instances of the cruelty by necessary implication. There is clear intendment by providing presumption as to abatement of suicide by a married woman. For purposes of reference, the relevant amended sections are reproduced below :
“498A. Husband or relative of husband of a woman subjecting her to cruelty. – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation – For the purposes of this section. “cruelty”, means –
(a) 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
(b) harassment of the woman where such harassment 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.”
113-A (Evidence Act). Presumption as to abetment of suicide by a married woman – “When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.”
The explanation added to S. 113-A Evidence Act, provided the meaning of “cruelty” as in S. 498-A, I.P.C. It appears to be clearly the intention of legislature to drawn past instances of cruelty within the a period of seven years from the date of the marriage of a woman who commits suicide as a result of cruelty. Thus when a period of seven years from the date of marriage is to be considered to raise a legal presumption, it cannot be done without drawing the past instances from the commencement date of the aforesaid provisions. To my mind, failure to ignore the past instances of cruelty to considered an offence under S. 306 and S. 498-A, I.P.C., which takes place after the amended date, i.e. 25-12-1983, would mean to make these provision nugatory. Thus the S. 498-A, I.P.C. and S. 113-A, Evidence Act, include in its amplitude the past events prior to the date of amendment i.e. 25th December, 1983, it is all common knowledge that in recent times, the cases of bride burning on account of dowry are on the increase. The Supreme Court in the matter of Bhagwant Singh v. Commr. of Police, has observed :
“The greed for dowry, and indeed the dowry system as an institution, calls for the severest condemnation. It is evident that legislative measures such as the Dowry Prohibition Act have not met with the success for which they were designed.”
xxx xxx xxx xxx
7. Repeated instances are being highlighted in various newspaper in the country. There are also social organizations focussing the attention of public on this issue. To ventilate the grievances about atrocities on newly married brides due to dowry or other such similar demands from their husbands or in-laws women social workers had taken up the cause in a movement in the country and due to the effective persuasion by such social compulsions, S. 498-A, I.P.C. and S. 113-A, Evidence Act, have been introduced on 25th December, 1983. The aforesaid provisions are obviously intended to cure the existing evil in the society. The evil at many times resulted in atrocities on married women and various acts of cruelty were being practiced. No doubt, there were some provisions available in the Penal Code such as S. 306, I.P.C. but the instances were such which could not come to light due to their occurrence in the houses of their in-laws. Naturally, the victims could not take recourse to public authorises to ventilate their grievances. After all, the social conditions, family traditions, etc., prevented the brides to take any recourse to public authorities. They could not even convey the atrocities to their parents. It is therefore to curb this social evil which resulted in atrocities on women that the aforesaid provisions are introduced.
8. Looking to the language of the provisions under S. 113-A Evidence Act, a legal presumption has been introduced if a married woman commits suicide within a period of seven years from the date of her marriage. The period of seven years itself is suggestive of the consideration of past period before the introduce of this section. Therefore, a plain reading of this provision permits to draw the instances of cruelty even prior to the date of commencement of this provision. It is therefore permissible for a Court enquiring a case to look into the past conduct prior to the commencement of this provision. It is therefore permissible for a Court enquiring a case to look into the past conduct prior to the commencement date of the amended provision. It clearly authorises the Court to base its conclusions on the past instances of cruelty. The legal presumption provided under this provisions clearly includes that past instances of cruelty spread over a period of seven years from the date of marriage of victim.
9. The language and purport of the provision under S. 498-A, I.P.C. introduced by the amendment on 25th December, 1983 clearly speaks of past conduct which drives a woman to commit suicide at a later date. The construction of this section clearly discloses that if a cruelty within the meaning of S. 498A committed on a married woman drives her to the commit suicide or to cause grave injury or danger to life, limb or health, the person guilty of such wilful conduct is liable for the punishment The act of suicide or causing grave injury or danger to her life is meant as a result of the past events.
10. In view of the proposition of law discussed above while deciding the instant case, the drawing of the past instances of the cruelty prior to 25-12-1983 will not render the penal provision under S. 498. I.P.C. retrospective. I find that the learned trial Judges has considered this aspects and given a concept finding that the ill-treatment meted out of Manda by her husband, prior to the date of the commencement of the amended provisions drove Manda to commit suicide. The legal provision has been correctly interpreted by the trial Court in arriving at the guilt of the appellant under S. 306 and S. 498-A, I.P.C.
11. As discussed above, I am of the view that the trial Court has not committed any illegality in taking into consideration the past events of cruelty and convicting the appellant on the basis of legal presumption under S. 113-A, Evidence Act. The contention of Shri Pendharkar that it makes the aforesaid amended provision retrospective in nature cannot, therefore, survive for the consideration.
12. Shri Pendharkar also attacked the judgment of the trial Court on merits. According to him, the relevant witnesses who have stated about the instances of cruelty are P.W. 1 Pralhad, the brother of deceased Manda, P.W. 2, Pandurang, father of deceased Manda, P.W. 3, Vatsala, mother of deceased Manda. P.W. 4 Padmini, friend of deceased Manda. P.W. 1 Pralhad had reported the matter to police on the next day of the incident, i.e., on 13-2-1984 vide Exhibit 7. In his report to the police, he stated that his sister Manda was missing from 12th February, 1984 and the reason behind her missing was the ill-treatment meted out to her by her husband. He has stated that the appellant was addicted to drinking liquor and he used to beat Manda every now and then. He has deposed about the marriage of his sister with the appellant and that he had seen the appellant behaving disorderly under the influence of liquor at the Pooja of Satyanarayan on the second day of the marriage. He has also stated that Manda had stated to him that her husband was asking money for purchasing a bicycle. Thus he has stated about the instances of cruelty committed by the appellant on his sister Manda. Shri Pendharkar criticised the evidence of this witness on the ground that in the F.I.R., he has not stated about the demand of money for bicycle. According to him, this is a vital omission and, therefore, his evidence should not be considered on the point of cruelty practiced on Manda for demanding money. It is to be seen in this case that on the date when Exhibit 7, the first information report, was lodged by this witness, he was not knowing the fact that Manda has committed suicide. It was a sort of intimation to the police to trace out his sister Manda and he had given some reasons which, according to him, were responsible for her leaving the house of her husband, the appellant. Although it is true that there is omission about demand of money for bicycle in the F.I.R. this witness could not be disbelieved on the basis of this omission. After all, it was not necessary for him to describe all the past events of cruelty since it was merely an intimation to move the police in the direction of tracing out his sister.
13. P.W. 2 Pandurang is the father of deceased Manda. He has stated that after the marriage, Manda had come to his house at the time of Ashadhi Ekadashi and stayed there for 10 to 12 days. He further stated that Manda complained him that her husband used to beat her after drinking liquor. In short, this witness spoke about the harassment to Manda by the appellant under the influence of liquor. Shri Pendharkar therefore submitted that the evidence of this witness does not disclose any unlawful demand for any property made by the appellant and, therefore, his evidence should not be considered.
14. P.W. 3 Vatsalabai, the mother of Manda, has similarly stated that she saw the appellant misbehaving under the influence of liquor on the second day of marriage at the time of Satyanarayan Pooja. She further stated that the appellant used to beat Manda under the influence of liquor. She also stated that Manda told her that the appellant was demanding money. She further stated that both Manda and the appellant had come to their house again a month after Ashadi Ekadashi and at that time, she was complaining that the appellant was pressing her to bring money from her father and for that purpose, she was being assaulted by her husband and others. This witness also stated that she had noticed an injury on the calf of Manda’s leg. On enquiry, Manda told her that the appellant threw a stone at her which caused the said injury. Shri Pendharkar criticised the evidence of this witness as an interested witness. According to him, this witness has not correctly stated the time when she noticed the injury on the leg of Manda.
15. The last relevant witness is P.W. 4 Padmini. She is the resident of the village where the parents of Manda reside. She was the friend of Manda. Whenever Manda used to go to her village, she used to contact this witness. This witness stated that at the time of Ashadi Ekadashi, Manda had called on her and told her that her husband was demanding a cycle or equivalent cash. She further stated that on the second occasion of Diwali, Manda complained to her about the ill-treatment given to her by her husband. She further stated that on a weekly bazar day, she is a witness to the incident which took place at the S.T. Stand. According to this witness, Manda was slapped in her presence by the appellant. On asking, Manda told her that she was slapped because the appellant wanted Manda to bring money from her parent’s house. She also claims to have noticed the injury on the right calf of Manda’s leg. Manda also told her that her husband-appellant had caused that injury by throwing a stone at her. The incident of stone throwing, according to this witness, was on account of demand of money for purchasing the cycle by the appellant. Shri Pendharkar urged to disbelieve this witness on account of the reason that she was the friend of Manda, an interested witness and secondly, that no fixed date or time has been stated by her about the noticing of the injury at the S.T. stand. Shri Pendharkar also made a general criticism about the evidence of the above four witnesses as being interested witnesses. I find that they cannot be said to be interested witnesses merely because P.Ws. 1, 2 and 3 happen to be the close relations of Manda. After all, the sufferings which Manda faced were disclosed by her to her father, mother, brother and her friend. One cannot expect that a newly married bride should go on complaining about her ill-treatment by her husband or in-laws to any outside person. The conduct of Manda in disclosing her sufferings to her nearest and dearest ones, is most natural. Therefore, these witnesses cannot be said to be interested. It is not the case of the appellant that the prosecution witness had any axe to grind against him to involve him falsely because Manda committed suicide. I do not find any element of false involvement of the appellant by these witnesses. Prosecution evidence is cogent, consistent and reliable. The trial Court has rightly believed the version of these witnesses to establish the guilt of the appellant.
16. It has been urged on behalf of the appellant that causing injury on the leg of Manda by the appellant has not been legally proved by the prosecution. Therefore, the conviction on the basis of that evidence is illegal. It has also been argued that the doctor who noticed the said injury on the leg of Manda has not been examined by the prosecution. The prosecution has examined P.W. 7 Ramdas, a compounder attached to the Primary Health Centre, Mohari. He was stated that it being a small village, he was knowing Manda. According to him, on 7-1-1984, Manda had come to his dispensary and she was given treatment for the injury on her leg. This witness stated that because the doctor was on tour, he himself treated the wound, cleaned it and dressed it after applying the medicine. He himself prepared the case papers of Manda by making the necessary entry in the register maintained in the dispensary. The extract of that entry has been exhibited at Exhibit 23. He further stated that on the following days, i.e., on 9th and 10th also, she had come to the dispensary for cleaning and dressing. A copy of that entry is also placed on record at Exhibit 24. According to Shri Pendharkar, the evidence of this witness is secondary and not legally admissible. I do not see any reason to disbelieve this witness as he personally saw the injury and noted it in the register. Shri Pendharkar further criticised that no age of the injury is written in the record and, therefore, it does not relate to the period after the commencement of the amended provisions. Shri Pendharkar also criticised the evidence of P.W. 3 Vatsala and P.W. 4 Padmini on this point as regards the period in which this injury was caused. As I have already observed that, the period of cruelty is immaterial for the purposes of the proof of offence under S. 498-A, I.P.C., whether it is prior to the amended date or subsequent to that date, it does not make any difference. However, the evidence of P.W. 7 Ramdas coupled with the evidence of P.W. 3 Vatsala and P.W. 4 Padmini is consistent of having noticed the injury on the leg of Manda. Further, their evidence is also consistent that the said injury was caused to Manda by appellant Vasanta.
17. There is again the evidence of P.W. 4 Pundlik, a neighbour residing close to the house of the appellant. He has stated that he was a witness to the incident when father of Manda was saying that he was not willing to send Manda because her husband was troubling her on account of the demand of money for a cycle. However, according to this witness, on his advice, Manda was sent to the house of the appellant as the father of the appellant assured good treatment.
18. Lastly, Shri Pendharkar submitted that the evidence of prosecution witnesses is discrepant and there are omissions in their evidence on material points. He said it is a general criticism against the witnesses. According to him, there is no independent evidence in regard to the actual abetment by the appellant and, therefore, appellant should be given benefit of doubt. Shri Pendharkar relied on a decision in the case of Chanchal Kumari v. Union
Territory, Chandigarh. In that case, the Supreme Court acquitted the accused since no dependable evidence as regards the actual abetment by any of the accused persons was established. The report was made three days later and secondly, the demand was for construction of the house and the circumstances were quite contrary. The facts of the present case are quite different. The proposition laid down by the Supreme Court in the case of Chanchal Kumari cannot be made applicable to the instant case as the facts proved are different.
19. No other submissions were made. The death of Manda by drowning is not disputed. So also, the other usual evidence of inquest panchanama, seizure is not in dispute. Taking into consideration the evidence on record and the circumstances of this case, I am firmly of the view that the findings recorded by the trial Court regarding the guilt of the appellant are based on reliable evidence. The prosecution evidence about the circumstances of ill-treatment and cruelty have been properly considered by the trial Court and does not call for any interference. Thus, there is no substance in the appeal and the same is accordingly dismissed.
20. Appeal dismissed.