1 APEAL 535 OF 1993 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 535 OF 1993 Vishnu Shankar Phadatare age:28 years, Occn. Agriculturist residing at: Chimangaon, Tal. Koregaon, Dist. Satara .. Appellant -versus The State of Maharashtra .. Respondent. Mr. Rahul Kate, for the Appellant. Mr. S. A. Shaikh, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 15th March, 2011 Oral Judgment 1. This appeal is directed against the conviction of the appellant, by the learned Additional Sessions Judge, Satara, for the offence punishable under Section 306, 498-A r/w 34 of the Indian Penal Code and sentenced to suffer R. I. for five years and fine of Rs.1,000/- or in default R.I. for three months, and sentenced to suffer R.I for one year and fine of Rs.500/- or in default R.I. for one month, respectively, on the conclusion of Sessions Case No.157 of 1989. 2. Facts which are material for deciding this appeal are as under:- Chhaya was married to the appellant on 5th June, 2 APEAL 535 OF 1993 1987. She was illtreated by the appellant and his mother resulting in her returning to matrimonial home and notice being issued through advocate. The matter was, however, amicably settled because of intervention of an advocate and the victim resumed cohabitation soon after this notice was given on 12.4.1988. Thereafter victim allegedly suffered snake bite and was treated and then on 18.10.1988 she was alleged to have committed suicide by consuming poison. On a report by her father, an offence was registered and investigation commenced. Victim's dead body was sent for postmortem after performing inquest. The postmortem examination did not reveal any injuries and probable cause of death was shown as poisoning. Viscera was preserved and sent to Forensic Science Laboratory, who have returned verdict that no poison was detected in the Viscera. The Medical Officer, therefore, certified that final cause of death was death due to undetected poison. In the course of investigation, police performed panchnama of spot, recorded statements of witnesses and on completion of investigation, sent chargesheet to the Court of Judicial Magistrate First Class, Koregaon, who committed the case to the Court of Sessions at Satara. 3. Learned Additional Sessions Judge, to whom the case was made over, charged the appellant for the offences punishable under Sections 498-A and 306 of the Indian Penal 3 APEAL 535 OF 1993 Code, sharing common intention with his deceased mother, who had died in the mean time. Since the appellant pleaded not guilty to the charge,he was put on trial at which prosecution examined in all 9 witnesses in its attempt to bring home the guilt of the appellant. 4. After considering the evidence in the light of defence of denial, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. Aggrieved thereby the appellant has preferred this appeal. 5. I have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. With the help of both the learned counsel, I have gone through the evidence on record. Learned counsel for the appellant first submitted that when most of the allegations of illtreatment were made against appellant’s mother, the appellant could not have been convicted with the help of section 34 of the Indian Penal Code, after his mother’s demise. He submits that there was absolutely no evidence to show that the appellant had ever illtreated the victim so as to drive her to commit suicide. As rightly contended by the learned Additional Public Prosecutor, it is not that the appellant has not been held guilty by the learned Additional Sessions Judge for any act of his own. The allegation is that both the appellant and his mother acted in furtherance of their common intention. It is not that only one of them acted while the other was passive spectator. 4 APEAL 535 OF 1993 The allegation is that both of them indulged in treating the victim with cruelty. Therefore, it is not relevant whether appellant could have been convicted for the acts of his mother. 6. Learned counsel for the appellant next submitted that the learned trial Judge was not justified in coming to the conclusion that the victim had committed suicide. He submitted that notes of postmortem examination at Exhibit 9 show that there was absolutely no injury on the person of victim. Dr. Pandit, who had first treated the victim is examined as P.W.4. He stated that on 18.10.1988, when he was in his clinic at about 4 to 5 p.m. one person came running to his clinic and asked him to see one lady who had fallen in front of clinic. He immediately rushed and found that the victim was lying on the road and the froth was coming out of her mouth. He stated that the victim was not in a position to speak though she attempted to speak and she was perspiring. He told the persons gathered to shift the victim to a better hospital. 7. P.W.5- Dr. Subhada Chinchalkar had performed autopsy on the victim. She had proved her notes of postmortem examination and stated that there was no injury on the person of victim and therefore, she preserved the Viscera. The report of the Chemical Analyzer is at Exh.10. There was no recognizable poison detected in the viscera. 5 APEAL 535 OF 1993 Therefore, according to Dr. Chinchalkar, the cause of death was cardio respiratory failure due to pulmonary edema due to undetectable poison. Thus, the Doctor seems to have given opinion on assumption that since nothing else was found, it was a case of poisoning. 8. The prosecution has in fact relied on the letter written by the victim before her death which was received by her father, after 4 days of her death i.e. on 21st October, 1988. This inland letter having necessary postal cancellation stamp is at Exh.28. The victim’s handwritng has been identified by P.W.3- Dadasaheb Jadhav, who is cousin of the victim and who was acquainted with the hand writing of the victim. In the inland letter, the victim had stated that she was not well. She had malaria type fever, but still she had to work because she was at her in-law’s place. There was nobody to treat her or to take her to hospital and therefore had made request to parents to take her back. The fact that victim herself was seen on the way in front of Dr. Pandit’s clinic, would lead to inference that the victim had gone there walking. The opinion of P.W.5- Dr.Shubhada, that the victim died by poisoning may be doubtful. Therefore, the learned Additional Sessions Judge was not justified in holding that the victim had committed suicide by poisoning herself. If it is not proved that the victim had committed suicide, there would be no question of the appellants indulging in any abetment to the victim to 6 APEAL 535 OF 1993 commit suicide and therefore, appellant’s conviction for the offences under Section 306 of the Indian Penal Code, would have to be set aside. 9. The victim’s parents have been examined as P.W.1 and P.W.2. They stated about illtreatment to the victim. P.W.3 Dadasaheb Jadhav, cousin of the victim, too stated about illtreatment and identified three letters i.e. two post cards and one in land letter which are at Exh. 26, 27 and 28. In the post cards at exh 26 the victim has narrated her plight. In the post card at Exh.27, she had stated her mother in law who too had been chargesheeted, used to beat victim everyday and drove her out of the house in the past. The victim had also stated that the appellant also bet her up so badly that she could not even walk. Learned counsel for the appellant submitted that all these letters are irrelevant since after this, the victim had gone for cohabitation with her husband with the intervention of P.W.6, Advocate -Jaywant Kenjale, who had issued notice on 12.4.1988. As rightly pointed out by the learned Public Prosecutor the concept of condonation may be applicable in civil proceedings, but there could be no question of any condonation of a crime, simply because victim went back for cohabitation to the appellant’s house and therefore, the beating by the appellant to the victim referred to in her letters would be relevant for finding out whether the victim was treated with cruelty. 7 APEAL 535 OF 1993 9A. Learned counsel for the appellant submitted that P.W.7 -Leela Jadhav, neighbour, has categorically stated that there was no illtreatment to the victim and therefore, her evidence should be believed. It is tragic that women themselves do not come forward to help each other and therefore, hostility of P.W.7 Leela Jadhav need not lead to any inference that the appellant is innocent of beating the victim. 10. P.W.-8, Shivaji Shinde is another cousin of the victim who too had stated that the victim used to report to him that she was being illtreated by the appellant and his mother. The cross examination of this witness, comprises of only suggestions which witness has denied. P.W.9 – Ramesh Mohite conducted investigation. 11. There would be ordinarily no reason for a person to suffer unnatural death. Even if it is presumed that the victim died naturally, because of her illness, it cannot be lost sight of that the victim died because she was not provided any treatment. This may amount to willful conduct, aimed at harming the health of the victim and therefore, may amount cruelty, under explanation (a) under Section 498-A of the Indian Penal Code, apart from the fact that there is no reason to disbelieve the account of beating given by the victim in her letter at exh. 27, which was so bad that victim was not in a position to walk. In view of this appellant’s conviction for the 8 APEAL 535 OF 1993 offence punishable under section 498-A would have to be upheld. 12. Learned counsel for the appellant submitted that the appellant is now being convicted of the incident which took place in 1988 i.e. 23 years ago. The appellant has been living in the shadow of conviction, for all these years and therefore may be treated leniently. The learned APP vehemently contended that no leniency is required to be shown in such cases since such conduct has to be discouraged by imposing exemplary sentence. Considering the fact that the conviction was recorded way back in the year l993, in respect of incident which took place in 1988, no useful purpose would be served by sending the appellant back to the prison after all these years. The appellant is shown to have been in custody from 25.10.1988 to 7.3.1989 as under trial prisoner and on conviction he was also in custody from 21.09.1993 to 17.10.1993, i.e. totally he was in custody for about five months. In view of this by reducing sentence of R.I. for one year imposed on this count to the period undergone as under trial prisoner and on conviction, and increasing fine suitably, this appeal could be disposed of. 13. The appeal, is therefore, partly allowed. The conviction of the appellant for the offence punishable under Section 306 of the Indian Penal Code and sentence of R.I. for five years and fine of Rs.1,000/- is set aside and the appellant 9 APEAL 535 OF 1993 is acquitted of the said offence. 14. The appellant’s conviction for the offence punishable under Section 498-A of the Indian Penal Code is maintained and the sentence is, however, reduced from R.I. for one year to the period undergone as under trial prisoner and on conviction and fine is increased from Rs.500/-, to Rs. 10,000/- or in default to suffer R.I. for a period of one year. The appellant shall surrender to his bail and to pay fine, within a period of four weeks of the judgment being available on the High Court website. If the appellant does not surrender within a period of four weeks, the learned Sessions Jude shall have the appellant arrested and committed to serve the sentence. (R. C. CHAVAN, J.)