1 Cri Appeal No. 178 of 1999 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 178 OF 1999 Arun Garbad Shelke, Aged 25 years, Resident of Gokharubaba Galli, Kopargaon, Taluka Kopargaon, District Ahmednagar Applicant V E R S U S The State of Maharashtra Respondent Mr. S.S. Chapalgaonkar, Advocate, holding for Mr. S.P. Chapalgaonkar, Advocate for the appellant Mr. S.N. Kendre, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 3rd December, 2010 ORAL JUDGMENT 1. This appeal is filed against the Judgment and order passed by the Additional Sessions Judge, Kopargaon, dated 24th March, 1999, in Sessions Case No. 33 of 1995, convicting the appellant, who was one of the accused amongst three accused in the sessions case, for the offence punishable under Section 498-A of the Indian Penal Code. 2. The appellant, his mother and brother were prosecuted for the offences punishable under Sections 498-A, 306 read with Section 34 of the Indian Penal Code. They were accused of abetting suicidal death of the appellant’s wife Rekha with in one and half years of the marriage. As said above, the learned Judge of the trial Court held that the offence punishable under Section 306 of the Indian Penal Code is not proved and he further held that the prosecution has failed to prove its case also against rest of the accused, and, as said above, he held that the offence punishable under Section 498-A of the Indian Penal Code alone was proved against the appellant. 2 Cri Appeal No. 178 of 1999 3. The prosecution case rests on the depositions of only three prosecution witnesses. Out of which, the deposition of prosecution witness No. 1 is important, and on the basis of which, the learned Judge of the trial Court held that the prosecution has proved its case. 4. The prosecution witness No. 1 is also the complainant in this case and is the father of deceased Rekha. He stated that his daughter Rekha was married to the appellant on 29th April, 1993. He said, at the time of wedding, he paid Rs.16,000/- towards the expenses of wedding etc. He said, for first six months, Rekha’s marriage was happy. He said, thereafter, the appellant and others started ill-treating Rekha. He said, whenever Rekha came, she informed him that the appellant and others were harassing her in order to force her to bring money from her father. The witness further stated that on 27th December, 1993, he received a post-card letter written by deceased Rekha. The letter is exhibited and it indicates that Rekha had requested her father to give Rs.6,000/- for purchase of a vehicle. She also indicated in the letter that the complainant should keep the amount ready as her husband / appellant would come to pick it up. The witness stated that the appellant did not come to receive the amount, and so, he personally went and handed over the amount to him. The complainant further stated that 5-6 days thereafter, his daughter Rekha came to his house and demanded Rs. 5,000/- saying that ‘they’ wanted Rs.5,000/- for construction of the house and that she was sent by the appellant to receive the amount. The complainant stated that he told his daughter that he is unable to pay the amount. He said, on next day, his daughter Rekha went back to Kopargaon. He further said, 5-6 months thereafter, at the time of festival of Raksha-Bandhan, his daughter Rekha came to his house. He said, he found Rekha having slimmed down. He said, he asked Rekha as to whether she was not keeping good health. He said, Rekha told him that she was being tortured, she was not 3 Cri Appeal No. 178 of 1999 provided with food and battered by her husband. The complainant then stated that three days after Rekha’s arrival, the appellant also came to his house. He said, the appellant demanded Rs.5,000/- for construction of the house to him. He said, he told the appellant that he did not have money. The complainant stated that he then told the appellant that having regard to health of Rekha and her grievances of torture and beating against the appellant, he would not send Rekha with him. The complainant stated that, to this, the appellant insisted that he would take back Rekha. The complainant said that on this count the neighbours gathered in his house. He said, he also called for some elderly people of the village. He said, they intervened, and he said, on their say, he agreed to send Rekha with the appellant. Soon thereafter, on 30th September, 1994, he said, a message came from the appellant’s house that the appellant’s mother is ill and he should go and visit her in the hospital. He said, he and his wife went to the hospital and found that the Rekha and not the appellant’s mother was ailing. He found Rekha lying on hospital bed in burnt condition. He said, she was unable to speak. He said, on the next day, Rekha died. 5. The deposition of prosecution witness No. 2 is more or less similar, but the details are lacking. She too supported the prosecution by saying that her daughter Rekha used to visit her house and narrate her about the torture, beating, starvation etc. She also stated that an amount of Rs.6,000/- was paid to the appellant earlier. She then stated that Rekha made demand for Rs.5,000/- for construction of the house when she came for Raksha-Bandhan. She further narrated as to how the appellant himself came to Nandgaon to her house to take Rekha back and demand the amount personally and how she and her husband reluctant to send Rekha with him etc. She too stated that when she went to the hospital, she saw Rekha in burnt condition and unable to talk. 4 Cri Appeal No. 178 of 1999 6. The learned Judge of the lower Court rightly held that Rekha died of suicide. A very feeble attempt was made through cross- examination and through the statement under Section 313 of Code of Criminal Procedure of the appellant that Rekha had met with an accident. But, having regard to the fact that Rekha sustained 91% burn injuries, the learned Judge of the lower Court rightly concluded that she died of suicide. 7. The prosecution thus depends on the above mentioned two witnesses; the parents of victim Rekha, to prove that Rekha was being treated with cruelty for pressing unlawful demands. In other words, the prosecution wants to prove through the depositions of these two witnesses that the offence under Section 498-A of the Indian Penal code could be proved. The learned Advocate appearing for the appellant contended that besides the depositions of these two witnesses, who are certainly interested witnesses, there is no independent evidence to indicate that Rekha was tortured, ill-treated by the appellant and his family members. He also suggested that the demands that were made to the complainant, most probably came from Rekha herself. In order to elaborate on this, he pointed out that the letter of Rekha did not indicate that she was under pressure to write the letter or that she was harassed for sending the letter. The letter indeed does not indicate that Rekha was under duress for writing the letter. But, the letter at one place gives an indication that Rekha was writing this letter as per the request or direction of her husband / appellant, because, in the letter, Rekha indicated that her husband / appellant would come to take the amount from the complainant. This letter thus clearly indicates that the appellant was certainly aware of the fact that Rekha had sent this letter for demanding Rs.6,000/- and that he was supposed to go and fetch that amount. However, this demand and the payment made pursuant to the demand, is not the subject matter of the case at all. The 5 Cri Appeal No. 178 of 1999 accusation of the appellant is in respect of his demand and torture of his wife on account of demand of Rs.5,000/-, which he allegedly made after he received earlier sum of Rs.6,000/-. The learned Advocate appearing for the appellant suggested that even demand of amount of Rs.5,000/- for construction of the house was coming from Rekha, because, he indicated that the prosecution witness No. 1 in the cross- examination admitted that Rekha desired to have an independent house which could be constructed as upper-story of the existing house where Rekha and her in-laws resided. However, merely having such desire, would not induce a woman to demand the amount from her father. Besides, there is very strong evidence against the appellant in respect of his demand of Rs.5,000/-, which he made at the time of Raksha-Bandhan festival. 8. I have discussed the depositions of the witnesses above and I find no hesitation to believe this circumstance against the appellant. The complainant did not really want to send his daughter back with the appellant, because of the loss of health suffered by Rekha as well as because of her complaints against the appellant and his family members of demand and ill-treatment etc. This incident narrated by the prosecution witnesses cannot be doubted. It was certainly unfortunate for Rekha that on that day she was forced to go back to her husband. Within few days thereafter she died on 30th September. The festival of Raksha-Bandhan generally arrive in August of each year, and so, the above mentioned conclusion cannot be said as incorrect. In view of this, I do not hesitate to believe the prosecution evidence to hold that the offence under Section 498-A of the Indian Penal Code is proved against the appellant. 9. The learned Judge of the trial Court however held that the cruelty meted out to Rekha, her suicidal death within seven years of her marriage were not sufficient to presume that the appellant had abetted Rekha’s suicide. Since the State of Maharashtra has not 6 Cri Appeal No. 178 of 1999 challenged this finding of the trial Court, I am not inclined to discuss the correctness of the same although I desired to do so. 10. At this stage, the learned Advocate appearing for the appellant prayed for leniency and requested to reduce the quantum of sentence. He pointed out that since the incident which occurred about 16 years back, the appellant has re-married and has two minor children, aged about 3-4 years. He said, his client has aged mother to look after. He said, his client drives an auto-rikshaw at Kopargaon and earns his livelihood. He even suggested that the appellant be spared from substantive sentence and sentence to suffer for the period which he is already undergone. Having regard to the lapse of 17 years from the incident, I am inclined to show some leniency to the appellant and to reduce the substantive sentence of two years to one year. ORDER 1. The appeal is partly allowed. 2. The appellant is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 2,000/- (Rupees Two Thousand) which is already deposited by the appellant for the offence punishable under Section 498-A of the Indian Penal Code. 3. The appellant is taken in custody and sent to Jail. ( A.V. NIRGUDE, J. ) SRM/criapl/178/99/3/12/10/ok