1 Cri. Appeal No. 129 of 1999 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 129 OF 1999 Baban s/o Ratan Dhiwar, Aged 45 years, Occupation Service, Resident of Kokamthan, Taluka Kopargaon, District Ahemednagar Appellant V E R S U S The State of Maharashtra Respondent Mr. M.M. Ambhore, Advocate for the appellant Mr. S.N. Kendre, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 1st December, 2010 ORAL JUDGMENT 1. This appeal is filed against the Judgment and order passed by the Additional Sessions Judge, Kopargaon, dated 24th February, 1999, in Sessions Case No. 25 of 1995, convicting the appellant under Section 498-A of the Indian Penal Code and sentenced him to suffer rigorous imprisonment of two years and to pay a fine of Rs.2,000/- with a default clause. 2. The appellant and his family members were charged under Sections 498-A, 302 read with Section 34 of the Indian Penal Code. The learned Judge of the trial Court acquitted the accused Nos. 2 to 4, but as said above, convicted the appellant only under Section 498- A of the Indian Penal Code. 3. The prosecution case depends on five witnesses and certain panchnamas admitted by the appellant. The prosecution witness No. 1, I think, is the most important witness. She is also the complainant. She stated before the Court that her daughter Shobha was married to the appellant 7-8 years before her death. During this time, Shobha 2 Cri. Appeal No. 129 of 1999 gave birth to two daughters. She stated for initial period of six months, the conduct of the appellant towards Shobha was normal. But, thereafter, he took to drinks and started torturing her. She said, at the time of wedding, she had promised to present a Cot to the appellant, but she admitted that this promise remained unfulfilled. She said, on account of non-fulfillment of the demand of the appellant, he tortured Shobha and asked her to bring a Cot from her parents. She said, her daughter used to come to her and used to tell about her agonies. She said, she now and then told her daughter to bear with her husband. She said, after 3-4 years from the date of marriage of Shobha and the appellant, her son got married, and in that ceremony, the appellant demanded clothes and gold-ring as his present. The complainant said that she could not afford to give such articles. She said, the appellant thereafter threatened Shobha that he would kill her if the gifts were not given to him. The complainant stated that Shobha was ill-treated on that count. The complainant stated that one month prior to the incident, the appellant brought Shobha to her and he declared that unless the gifts like gold-ring, cot were not given, he would not allow Shobha to reside with him. Thus, Shobha resided with her mother. The complainant stated that soon thereafter, she, her daughter Shobha had gone to the village fare where they met the appellant. At that time, she said, the appellant picked up quarrel on account of the demands and he assaulted Shobha in presence of the complainant. The complainant said that she and Shobha came back home. 4. Few days thereafter, she said, the appellant came and asked Shobha to come with him. He assured his mother-in-law that he would not harass Shobha. He requested his mother-in-law to send Shobha with him. The complainant said, she agreed to send Shobha back to her husband, and accordingly, Shobha went back. 5. Within eight days thereafter i. e. on 1st October, 1993, at about 3 Cri. Appeal No. 129 of 1999 10.00 p.m., Shobha sustained burn injuries. It is common ground that Shobha sustained burn injuries while she was in her house which she shared with appellant. It is further common ground that after Shobha sustained burn injuries, she was taken to hospital, but she succumbed on 3rd October, 1993. It is further common ground that the complaint was lodged after Shobha’s death i. e. on 3rd October, 1993, at about 10.10 p.m. The complainant could not see Shobha while she was in the hospital and taking treatment. The complainant said that before she could meet Shobha in the hospital, Shobha died. It seems, the appellant all along suggested that Shobha died due to accidental fire that broke out in the hut due to short-circuit of electricity. However, scene of offence panchnama, which is admitted by the appellant, does not indicate that Shobha sustained injuries due to short-circuit. The prosecution brought on record documentary as well as oral evidence to indicate that no short-circuit or electrical spark took place in the hut of the appellant during that night. 6. The prosecution witness No. 4, an Engineer from the Maharashtra State Electricity Board specifically stated that when he visited the scene of occurrence, he realized that the electric connection had no connection with the fire. In view of this, the learned Judge of the trial Court rightly concluded that Shobha did not die of accident. The learned Judge also came to a conclusion that the prosecution has failed to prove its case of murder because the only prosecution witness No. 3 Sadashiv on that point was utterly untrustworthy. I went through the deposition of this witness and also the reasons mentioned in the impugned Judgment as to why the learned Judge did not believe this witness. I find that the finding of the learned Judge of the trial Court is correct. So, the prosecution failed to prove homicidal death of Shobha. 7. The question was, how did Shobha die? The learned Judge of the trial Court rightly came to a conclusion that Shobha died of 4 Cri. Appeal No. 129 of 1999 suicide. The learned Judge however did not convict the appellant under Section 306 of the Indian Penal Code, because, according to him, the presumption under Section 113-A of the Indian Evidence Act was not available against the appellant because Shobha was married to the appellant for more than seven years. It seems, the learned Judge did not consider it necessary to examine, whether the appellant can be convicted under Section 304-B of the Indian Penal Code (dowry death). But, even on that count, the prosecution could not have succeeded, because even for constituting offence under Section 304-B of the Indian Penal Code, the wife should die an unnatural death within seven years of marriage. 8. The learned Judge of the trial Court in this background ventured to examine the trustworthiness of the deposition of prosecution witness No. 1 on the point of cruelty to Shobha during her marital life with the appellant. I have given the details of her deposition in the earlier part of my Judgment. It is apparent and clear from the narration of the complainant that Shobha suffered severely at the hands of the appellant throughout her marital life. She had been suffering from his harassment for more than seven years. Sometime in 1987, the appellant admitted, a marital dispute arose between him and Shobha and that Shobha has left his company and went to reside with her mother for quite some time. At that time, the appellant admittedly took help of one Father Anthony of the local Church and arrived at a compromise. The last incident of the harassment had occurred only one month prior to the incident. As mentioned above, the appellant brought his wife to her mother’s house and asked her to reside there till his demands of gold-ring etc were not met. This did not stop at that. Soon thereafter, the appellant assaulted Shobha when they met in the fare. Beating one’s wife is certainly a atrocious behaviour, but beating her in a public place in presence of her mother, is an extreme cruelty. Despite of this atrocious conduct of the 5 Cri. Appeal No. 129 of 1999 appellant, it was misfortune for his wife Shobha to go back to him, because her mother believed rather wishfully that the appellant would still treat Shobha well. It seems, the complainant, the mother of the victim, somehow wanted to get rid of her own daughter from her house and probably did not care for her future. It seems, she resigned to Shobha’s fate that she would face torture of her husband all throughout her life. The decision of the complainant to send Shobha back to the appellant, thus proved fatal. This indeed is a extreme case of cruelty. The learned Advocate appearing for the appellant submitted that despite of this, the case would not fall within four corners of Section 498-A of the Indian Penal Code. He asserted that as Shobha had died after seven years of marriage, the provisions of Section 498-A of the Indian Penal Code will not be attracted. Section 498-A of the Indian Penal Code reads as under : 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 tofine. Explanation-For the purpose of this section, "cruelty" means- (a) Any willful 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 meet such demand. 9. This Section does not provide anywhere that after seven years of marriage subjecting a married woman to cruelty would not amount to offence punishable under Section 498-A of the Indian Penal Code. The main ingredients of this Section are; (1) husband or relative of the 6 Cri. Appeal No. 129 of 1999 husband of a woman subjects such woman to cruelty; (2) willful conduct which is of such a nature as is likely to drive the woman to commit suicide would amount to cruelty as understood by the Section; and (3) subjecting such woman to harassment with a view to coerce her or any person related to her to meet any unlawful demand of valuables, would also amount to cruelty. In this case, Shobha was married to the appellant and was subjected to torture for coercing her mother to meet the unlawful demands of the appellant. The offence under Section 498-A of the Indian Penal Code thus is proved against the appellant. I find no error in the Judgment of the learned trial Court. 10. At this stage, the learned Advocate appearing for the appellant pleaded for leniency and sought substantial reduction in the substantive sentence. He contended that the appellant is facing trial and appeal since 1993, and so, he deserves leniency. I am afraid, I am not inclined to accept this suggestion at all. As such, the term of sentence awarded by the learned Judge of the trial Court to the appellant is quite moderate. The maximum sentence prescribed for Section 498-A of the Indian Penal Code is three years. As said above, this was a extreme case of cruelty, as contemplated by Section 498-A of the Indian Penal Code and yet the learned Judge of the trial Court awarded only two years of rigorous imprisonment to the appellant. I find it very difficult to reduce this term further. The appeal should therefore fail. ORDER (1) The appeal stands dismissed. (2) Issue arrest warrant against the appellant. ( A.V. NIRGUDE, J. ) SRM/criapl/129/99/1/12/10/ok 7 Cri. Appeal No. 129 of 1999