1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 398 OF 1997 1. Kailash s/o Bajirao Walunjkar, Aged 27 years, Occupation Agriculturist, 2. Bajirao Pandurang Walunjkar, Aged 52 years, Occupation Agriculturist, 3. Baban s/o Bajirao Walunjkar, Aged 30 years, Occupation Agriculturist, 4. Parubai w/o Bajirao Walunjkar, Aged 49 years, Occupation Agriculturist, All resident of Koregaon, Taluka Newasa, District Ahmednagar Appellants V E R S U S The State of Maharashtra Respondent Mr. R.N. Dhorde, Advocate for the appellants Mr. D.R. Korde, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 7th May, 2010 JUDGMENT 1. The appellants are challenging the Judgment and order passed by the learned Additional Sessions Judge, Shrirampur, in Sessions Case No. 36 of 1993, dated 4th December, 1997, convicting them under Section 498-A read with Section 34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for a period of two years each and to pay a fine of Rs.500/- with default clause. They also challenged their conviction under Section 304-B of the Indian Penal Code and the order of sentence to suffer rigorous 2 imprisonment for seven years each and to pay a fine of Rs.1,000/- each with default stipulation. The facts leading to the appeal, are as under : 2. On 11th April, 1991, the appellant got married to one Nirmala, who came to reside with the appellant No.1 and his family members at village Koregaon, Taluka Newasa, District Ahmednagar. On 4th May, 1992, Nirmala was taken to Government Hospital at Wadala, Taluka Newasa. The Medical Officer got her admitted as a case of poisoning. She died on 5th May, 1992 at about 03.40 a.m. Initially, the police registered a case of accidental death under Section 174 of Criminal Procedure Code. During the course of inquiry, Nirmala’s mother Bhamabai lodged her complaint with Newasa Police Station, which was registered as Crime No. 74 of 1992. 3. It is the case of prosecution that after the marriage of Nirmala with the appellant No.1, she was treated quite well for about three to four months. But, thereafter, all the appellants started ill treating her; teasing her that she is dark in complexion and they did not like her. They started beating her and starving her. Nirmala informed this ill-treatment to her parents and other relatives, but in vain. In January, 1992, Nirmala was driven out of her matrimonial house, and so, she came to reside at her parents house. After residing there for 3-4 days, the appellant No.1 took her back to his house. At that time, the appellant No.1 demanded Rs.10,000/- from the parents of Nirmala. They handed over him Rs.5,000/-, and thereafter, for some time, the appellants treated her well, but, thereafter, again started ill-treating her. On 20th April, 1992, there was a wedding ceremony in the family of Nirmala’s parents, and so, Nirmala came to attend that wedding. At that time, the appellant No.1 also came to attend the wedding and he demanded wedding present to him consisting of two tola gold and cash of Rs.10,000/- and threatened that if his demand was not met, Nirmala would not come 3 back alive. Thereafter, as said above, Nirmala died on 5th May, 1992. 4. The prosecution case mainly depends on prosecution witness No.2 Venunath, father of the deceased, prosecution witness No.6 Bhamabai, the mother of the deceased, prosecution witness No. 8 Kalapana, sister of the deceased and prosecution witnesses No. 5 and 9, who are close relatives of the deceased. 5. Prosecution witness No.2 stated in his deposition that when the wedding of the appellant No.1 and Nirmala took place, he paid dowry of Rs.45,000/-, a T.V. and fridge to the appellant No.1. He said, the appellants used to demand Rs.10,000/- from Nirmala, and on that count, they used to harass her. He said, on one occasion he paid Rs.5,000/- to the appellant No.1. 6. Prosecution witness No.6 Bhamabai, the mother of the deceased stated in her deposition that the house of the appellants is situated very close to their house. She stated that after about four months of the marriage, the appellants started saying that they did not like Nirmala and started ill-treating her. They did not provide her food. She said, Nirmala used to tell her these things when she used to visit her house. She also admitted that Nirmala used to stay with her for two to four days and used go back to her husband’s house. She said, on 25th January, 1992, the appellants beat up Nirmala and drove her out of their house. She said, Nirmala then came and stayed with at her mother's house for 2-3 days. Thereafter, she said, appellant No.1 came to take Nirmala back to his house. He took her back to his house, but, on the next day, she said, he came back and told them that he was in need of Rs.10,000/-. She said, her family then handed over Rs.5,000/- to him. She said, thereafter, Nirmala was treated well for about 4 to 8 days, and thereafter, they started ill-treating her again. In April, 1992, she said, there was a wedding ceremony in her family. In order to attend such wedding ceremony, she said, Nirmala came to her house. She said, the appellant No.1 also came for attending the 4 said wedding. Incidentally, she said, there was wedding ceremony in the family of the appellants. She said, the appellant No.1 demanded that for the impending wedding in his family, he should be given gift of two tolas of gold or cash of Rs.10,000/-. He even threatened, she said, that if his demand was not met, Nirmala would not be seen alive. She said, thereafter, Nirmala went back to her matrimonial house. She said, on 4th May, 1992, she heard from the relative that Nirmala was lying dead on the ota of her matrimonial house. She said, hearing this, she and her family members rushed to the house of the appellants. She said, they found Nirmala lying on the ota of the house. She said, she was alive and was shouting saying ‘save me please’. She said, she even noticed froth was oozing from her mouth. She said, she and her family members then took Nirmala to a hospital at Wadala. She said, while she was admitted in the hospital, Nirmala was crying and shouting. She said, Nirmala told her that the appellants administered poison to her. She said, the appellants were not with them at that time. 7. The prosecution witness No. 8 Kalpana is sister of the deceased. She told the Court that Nirmala used to tell her during her visits to her parents house that appellants were ill-treating her on account of her complexion. She said, in the month of January, 1992, the appellants drove Nirmala out of the house and she came and resided with their parents for 2 to 4 days. She said, thereafter, appellant No.1 came and took back Nirmala to his house. She said, on the next day, the appellant No.1 came back to their house and told them that he wanted Rs.10,000/-. She said, her parents gave Rs.5,000/- to him in her presence. She also stated about the appellant No.1’s demand of Rs.10,000/- or two tola gold as wedding gift etcetra and about the appellant No.1’s threat that if his demand was not meet, they would not see Nirmala alive. 8. Prosecution witness No.5 is husband of prosecution 5 witness No.8 Kalpana. He said, his house is situated opposite to the house of his parents-in-laws, the prosecution witnesses No. 2 and 5. He reiterated the allegations against the appellants, which are enumerated above, saying that he heard these complaints from Nirmala, when she came to reside with her parents. (This witness did not support the prosecution case further and was declared hostile). 9. Prosecution witness No. 9 is brother of prosecution witness No. 6 Bhamabai. He happened to be the maternal uncle of the deceased. He said, he resided at village Bherdapur, Taluka Shrirampur, District Ahmednagar. He said, he used to go to his sister’s house at Karegaon and used to meet Nirmala also. He said, Nirmala used to tell him about ill-treatment by the appellants. 10. The learned Advocate appearing for the appellants, on the basis of this evidence, asserted that, there is practically no case against the appellants No. 2 to 4 and the case of the appellant No.1 should therefore be separated from them. Indeed, there are omnibus and generalized statements against the appellants No. 2 to 4. The prosecution witnesses, enumerated above, did not say that in their presence the appellants No. 2 to 4 ever demanded any amount from Nirmala and on account of such demand they ill-treated her. All that they are saying is, that their knowledge about ill-treatment by the appellants No. 2 to 4 was based on the narrations of Nirmala. In a situation like this, when Nirmala was making complaints to the prosecution witnesses about ill-treatment at the hands of the appellants, it was natural that the parents of Nirmala viz. the prosecution witness Nos. 2 and 6, would try to intervene in the matter. They would meet the parents of their son-in-law and try to pacify them. They would try to find out to as to the cause of ill-treatment. But, the prosecution witnesses Nos. 2, 5, 6, 8 and 9 did not disclose that they made any attempt to meet the parents of the appellant No.1 i. e. appellants No. 2 and 4. Had there been serious ill-treatment to 6 their daughter Nirmala at the hands of her parents-in-laws and brother-in-law, the prosecution witnesses No. 2 and 6 atleast would have intervened. In absence of such circumstances, the prosecution case against the appellants No. 2 to 4 looks quite weak, and I think, they deserve benefit of doubt. 11. The case as against the appellant No.1, however, is quite strong. The allegations against him are in two parts. The first part is the prosecution witnesses' knowledge of his cruel conduct, which they learned from Nirmala. It seems the cross examination of the material witnesses was not quite effective. The defence could elicit from the prosecution witness No. 6, the mother of the victim, that Nirmala wanted to stay separately from her joint family and was requesting her husband to establish a separate house. However, besides this solitary admission there is no further admissions or other supporting material coming on record about this line of defence. The prosecution witnesses No. 2, 6 and 8 then stated also about their own knowledge about the cruelty of the appellant No.1. They clearly stated that in the month of April, 1992, only one month prior to Nirmala’s death, the appellant No.1 came to their house and demanded Rs.10,000/- or two tola gold as wedding gift in the impending wedding in his family. They also stated that the appellant No.1 issued threat to them that if his demand was not met, they would not see Nirmala alive. This part of the prosecution evidence has not been shaken despite cross- examination of these witnesses. I have therefore no hesitation to confirm the finding of the learned Judge of the lower Court that the appellant No.1 had treated Nirmala with cruelty, so much so that it drove her to commit suicide. The offence under Section 498-A of the Indian Penal code has thus been proved against him. The learned Judge of the lower court also held the appellants guilty under Section 304-B of the Indian Penal code. However, even admitting that the appellants were demanding Rs. 7 10,000/- or two tola gold from Nirmala and her parents, such demand cannot be said to be dowry demand, as contemplated under Section 3 of the Dowry Prohibition Act. The demand of Rs.10,000/- in April 1992, was an independent demand, which the appellants made, because there was a wedding in the family, and in the said wedding, the in-laws of the appellant No.1 were expected to give some gift to their son-in-law. This demand of the appellant No.1 was therefore not a dowry demand, and so, this case would not fall within the ambit of Section 304-B of the Indian Penal Code. But, nonetheless this case would certainly fall within the ambit of Section 306 of the Indian Penal code read with Section 113-A of the Evidence Act. 12. It is established on record that Nirmala died suicidal death, and as found above, the appellant No.1 treated Nirmala with cruelty. It is also held above that an offence under Section 498-A of the Indian Penal Code also proved against him. The question therefore is, whether the appellant No.1, due to his cruel conduct, abetted Nirmala’s suicide. The answer is in affirmative. Section 306 of the Indian Penal code and Section 113-A of Evidence Act are required to be read together. They are as under : 306. Abetment of suicide – If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. “113-A. 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 of 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. Explanation – For the purposes of this section, “cruelty” shall 8 have the same meaning as in Section 498-A of the Indian Penal Code.” As said above, Nirmala died suicidal death, she committed suicide within seven years from the date of her marriage and that her husband, the appellant No.1, had subjected her to cruelty (cruelty as contemplated by Section 498-A of the Indian Penal Code). The Court, therefore, may presume that the appellant No.1 had abetted Nirmala’s suicide. The presumption available under Section 113-A of Evidence Act is certainly rebuttable, but, unfortunately, the appellants could not bring anything on record to rebut the presumption. They could not show that Nirmala committed suicide due to certain different reason, and they could have shown this, even on probabilities. But, they failed to do so. Therefore, I am inclined to hold the appellant No.1 guilty under Section 306 of the Indian Penal Code instead of Section 304-B of the Indian Penal Code. 13. The question now that arises is quantum of sentence. The learned Judge of the trial Court had awarded substantive sentences of two years and seven years, respectively, for the offences mentioned above. The learned Advocate appearing for the appellants sought leniency on following grounds. He said, since the incident of 1992, the appellant No.1 has been undergoing agony of the case which lasted for 18 years. He filed an affidavit of the appellant No.1 on record to inform the Court that in the year 1998 the appellant No.1 got remarried, and at present, he has two children, aged about 11 years and 9 years. The appellant No.1 informs the Court further that his younger brother Rajendra died in an accident in the year 2006 leaving behind his widow and a child. He said, he is taking care of these two additional members of his family. Besides, he said, his parents are now old and he has to take their care. He said, he is the only member in his family who has to cultivate the 9 agricultural land and earn livelihood for the entire family. Mr. Dhorde, learned Advocate appearing for the appellants requested the Court to reduce the quantum of sentence to already undergone. However, I am not inclined to accept the suggestion of Mr. Dhorde. I am partly allowing the appeal and acquitting the appellant No.1 under Section 304-B of the Indian Penal code. Due to the reasons mentioned above I am even inclined to reduce the substantive sentence, but, it cannot in my view be reduced to the extent which Mr. Dhorde suggested. I think, to meet the ends of justice, the appellant No.1 deserves one year of rigorous imprisonment for the offence punishable under Section 498-A of the Indian Penal Code and he deserves similar sentence for the offence punishable under Section 306 of the Indian Penal Code. ORDER 1 Appeal is partly allowed. 2 The appellants No. 2 to 4 are acquitted. 3 The appellant No.1 is convicted of the offences punishable under Sections 498-A and 306 of the Indian Penal Code. 4 The appellant No.1 is sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/- (Rupees Five Hundred), in default to suffer rigorous imprisonment for one month for the offence punishable under Section 498-A of the Indian Penal Code. 10 5 The appellant No.1 is also sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/- (Rupees One Thousand), in default to suffer rigorous imprisonment for two months for the offence punishable under Section 306 of the Indian Penal Code. 6 Both the above sentences shall run concurrently. 7 The appellant No.1 is acquitted of the offence punishable under Section 304-B of the Indian Penal code. 8 All the bail bonds shall stand cancelled. sd/- ( A. V. NIRGUDE ) SRM/CRIAPL/398/97/ok