Cri.appeal 427/1997 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 427/1997 Shivaji Venkatrao Surnar, Age : 28 years, Occu. Agriculture, R/o Khoras, Tq. Gangakhed. ...Appellant. Versus 1 State of Maharashtra. 2 Venkatrao Bajgir, Age : Major, Occu. Agriculture, R/o Lendegaon, Tq. Gangakhed Dist. Parbhani. ..Respondents. Mr. P.S. Paranjape h/f Mr. S.G. Sangale, Advocate for appellant. Mr. S.G. Nandedkar, A.P.P. for respondent No.1/State. Mr. A.R. Borulkar, Advocate for respondent No.2. CORAM : A.V. NIRGUDE, J. Date : 15th December, 2010. ORAL JUDGMENT:- 1 This appeal is filed against the judgment and order passed by the learned Additional Sessions Judge, Parbhani in Sessions Case No. 117/1994 dated 03/12/1997 convicting the appellant under Section 498-A and under Section 306 of Indian Penal Code. 2 The prosecution case alleged that the appellant and his mother Kausabai treated the appellant’s wife with cruelty during the six years of the marital life and thereby abetted her suicide. At the Cri.appeal 427/1997 2 trial, the prosecution examined in all six witnesses out of which witnesses No. 2 and 4 are important. The prosecution witness No.2 stated that his daughter Sushila was married to the appellants about six years prior to her death in the year 1993. He said, the appellant and his family members treated Sushila properly for about 1 ½ years but thereafter, they started harassing her on account of her looks and her conduct. He said, one Ganpat brought a message of Sushila to him that she was being ill treated. He said, he then went to Sushila and brought her to his house. He said, Sushila thereafter stayed with him for about 1 ½ year. He said, he avoided to send Sushila back to the appellant because the appellant’s conduct was not proper. He said, thereafter, the appellant sent intervenors and assured that Sushila would be treated properly and on account of said assurance, he said, he sent Sushila back to the appellant. He said, even thereafter the ill treatment continued. He said, some time prior to the suicidal death of Sushila, the appellant demanded Rs.2,000/- from her and on account of the demand, he even treated her with cruelty. He said, on 30th November, 1993 he learnt from his son Kalba that while Kalba visited Sushila on 29th November, in his presence, the appellant abused Sushila and demanded Rs.2,000/- etc.. Prosecution witness No.4 Kalba supported this version when he stated that on 29/11/1993 he and his cousin had gone to stay with Sushila, he said, at that time, the appellant asked Sushila in his presence to ask him as to whether he had brought the demanded amount, he said, his sister told the appellant that he had not brought the money, because he had gone to Palam for repair of his bicycle etc. and was required to stay on his way Cri.appeal 427/1997 3 back to home at their house. He said, in his presence the appellant abused Sushila. He even added that in his presence the appellant bet Sushila up. He said, Sushila, they asked him to request their father to arrange for payment of the amount as per demand of the appellant. He said, on that night, after he and his cousin took meal at the house of Sushila, he noticed that Sushila did not take her meal and went to sleep. He said, on the next day, he had a talk with Sushila and at about 7.00 a. m., he returned back to his village. 3 Sushila died due to consumption of insecticide. It has come on record that on 30th November, she was found dead in her room at about 9.30 a.m.. Soon thereafter, the incident was reported to her father and it has also come on record that the complainant, the father of the deceased came to village Khoras and saw the dead body. It has further come on record that the complainant then went to the Police Station to report the incident but it is not in dispute that it was the appellant’s father who reported the suicidal death of Sushila to the police. It has also come on record that on that day the complainant did not lodge any complaint with the police. The complaint was lodged two days thereafter i.e. on 2nd December. The learned advocate appearing for the appellant tried to suggest that this delay is not natural and it occurred properly because the complainant first made demand from the appellant and his family members and since those demands were not met, a false complaint was lodged. I am not inclined to accept this suggestion because a person’s mental condition would allow him to approach police and lodge a complaint of this nature immediately after his daughter’s untimely death. It appears that Cri.appeal 427/1997 4 after funeral of Sushila, the complainant could go to the police. The complainant has given details as to what had happened between the appellant and Sushila during their marital life. One important aspect which requires consideration is the fact that about 1 ½ years after Sushila’s marriage with the appellant, Sushila had sent a distress message to her father and the father brought her back to his village, who did not allow Sushila to go back to her husband’s house because of the complaint of ill treatment. This aspect has not been denied in cross examination, by the appellant. Thus, the appellant has not denied the fact that Sushila stayed away from him for about 1 ½ year. In this back ground when the complainant stated that he did not allow Sushila to go back to her husband because the appellant was not treating Sushila properly, is believable. However, this incident of estrangement did not last long and Sushila went back to her husband. Thereafter, it seems, Sushila delivered two more children and so it can certainly be said that the incident of estrangement that took place soon after marriage, was not of much importance. The prosecution clearly suggests that until the death of Sushila, the appellant had made no demand from the deceased or her parents. His grievance was that Sushila was not good looking and that her conduct was not suitable to their status etc.. None the less, the incident of estrangement indicates that the appellant was in the habit of treating Sushila with cruelty. 4 The prosecution case gets strengthened because of the deposition of prosecution witness No.4 Kalba and because of the incident dated 29th November, 1993 which he narrated in detail. What this witness has stated is enumerated above. Out of this, only one Cri.appeal 427/1997 5 thing is an exaggeration. This witness in his statement before the police had not stated that in his presence, the appellant had beaten up Sushila but all other details were given by this witness when his statement was recorded by the police. This witness thus clearly proved that on 29th November, in his presence, the appellant abused Sushila, humiliated her and asked her as to why her brother Kalba had not brought the amount he had demanded. This incident certainly was a mortification to Sushila and probably this was the immediate cause for her to commit suicide. The learned advocate appearing for the appellant contended that the prosecution case depends only on the depositions of these two interested witnesses. He pointed out that the prosecution could have and should have examined Ganpat who had brought Sushila’s message to her father about ill treatment etc. He also pointed out that the intervenor who tried to bring out conciliation between parties in the earlier part of the marital life of the parties, are not examined. Indeed, these witnesses could have been examined but in absence of their deposition, the prosecution case does not lose its veracity. The appeal should therefore, fail. However, the complainant is present before the Court and has filed an affidavit stating therein that he has condoned the appellant and has secured that his grant children are properly treated by the appellant. He has also stated in the affidavit that he does not want the appellant to go to jail so as to expose his grand children to starvation etc.. In view of this, I am inclined to reduce the substantive sentence of the appellant to the period which he has already undergone. I am told that the appellant was in jail for about 41 days. Cri.appeal 427/1997 6 ORDER a) Appeal is partly allowed. b) Though the conviction of the appellant under Section 498-A and 306 of the Indian Penal code is confirmed, his substantive sentence is reduced to the period which he has already undergone. c) The appellant has already deposited the fine amount, and as directed by the lower Court, an amount of Rs.3,000/- be handed over to the complainant. (A.V. NIRGUDE, J) ts k/ok