1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.386 OF 1993 Vedoba Ravba Aayner aged 25 years, Occupation Shepherd, Resident of Bangaon, Taluka: Nandgaon, Dist. Nasik ...Appellant. (Org. Accd.No.1) v/s. The State of Maharashtra (to be served through the Learned Public Prosecutor High Court, Appellate Side, Bombay) ...Respondent. Mr. S.V.Kotwal a/w M.S.Mohite, advs. For the Appellant. Smt. G.P.Mulekar, APP for the Respondent/State. CORAM : J.H. BHATIA, J. DATED : JANUARY 6, 2011. ORAL JUDGMENT: 1 Original accused no.1 Vedoba has preferred this appeal challenging his conviction for the offences punishable under Section 498A of the I.P.C. and sentence to undergo R.I. for one year with fine of Rs.500/- awarded by the learned Additional Sessions Judge, Nashik in Sessions Case No.9 of 1993. 2 Prosecution case in brief is that, the deceased Sakharabai was married to the accused no.1/appellant about 20 years before her 2 death. For about 10-12 years they had happy married life. As Sakharabai could not bear any child , her husband and other in-laws began to ill treat her. Her husband asked her to give consent for his second marriage. Sakharabai gave consent for second marriage and he married one Savitrabai, who is cousin of Sakharabai, five years before the incident of this case. Savitrabai gave birth to a male child. According to the prosecution after birth of the child accused no.1 began to beat and illtreat his wife Sakharabai and also drove her out from the house. Some settlement took place and the accused no.1 promised to give some sheeps, goats, horses and two acres of land to Sakharabai for her livelihood. She accepted this on the promise that she should be allowed to live with her husband. However, after that, accused no.1 began to ill treat Sakharabai. When she went to her brother’s house for the festival of Pola, she told him about the ill treatment by her husband. However, under the hope of change in her husband’s attitude , Sakharabai returned to husband’s place but the accused no.1, his second wife and brothers drove her out. Therefore, Sakharabai again went to her brother’s house. Then Sakharabai’s brother convened the meeting of the members of their community. However, in that meeting also the accused no.1 refused to allow Sakharabai to live with him and threatened to cut her legs and 3 hands if she would come back to his house. In spite of this, Sakharabai went to her husband’s house. On the next day, her brother went to the house of the accused but did not find anybody. He approached Yeola police station with the complaint that Sakharabai was missing and expressed apprehension of something wrong done to her. On that day, deadbody of Sakharabai was found in the well of one Suryabhan Pathade. Sarpanch of the village informed the police. Police prepared spot panchanama and inquest panchanama of the deadbody. Post Mortem Report reveals that she had died due to asphyxia because of drowning and also that there were several ante-mortem injuries on her person. Police registered the offence under Sections 302, 498-A r/w Section 34 of the I.P.C. against five accused persons. After investigation charge-sheet was filed and the case was committed to the Court of Sessions. 3 Accused pleaded not guilty. On behalf of the prosecution in all six witnesses were examined while on behalf of the accused one defence witness was examined. After the trial, the learned Additional Sessions Judge by the impugned judgment acquitted accused nos.2 to 5 of all the charges and also acquitted the accused no.1 of the offence under Section 302 of the I.P.C. However, the accused was convicted and 4 sentenced for the offences punishable under Section 498-A of the I.P.C. 4 Heard the learned counsel for the Accused/Appellant and the learned APP. Perused the record and proceeding of the trial Court. 5 P.W.2 Vithoba is the brother and P.W.4 Mhasu is the maternal uncle of the deceased Sakharabai. Their evidence goes to show that Sakharabai and the accused Vedoba were married about 20 years before her death. For about 10-12 years after the marriage, they had cordial relations. However, as she could not give birth to any child, her husband began to illtreat her. He asked Sakharabai to give consent for his second marriage as he wanted child. Sakharabai gave her consent for his second marriage. As per the evidence of P.W.2 Vithoba, the accused promised to give some sheeps, goats, horses and two acres of land for maintenance of Sakharabai and this promise was reduced to writing on a stamp-paper. In view of the consent given by Sakharabai, he married one Savitrabai, who was also cousin of Sakharabai. From the evidence it appears that after second marriage of the accused no.1, he was living with both the wives together. Second marriage of the accused had taken place about five years before the death of his first wife. His second wife gave birth to male child. From the evidence, it appears that till birth of the child, there was no problem to Sakharabai in the said house, though 5 evidence indicates that she was harassed by the husband earlier to pressurise her to give consent for second marriage. However, that had come to an end with the second marriage. From the evidence of these witnesses, it appears that after the birth of the son, accused no.1 began to beat and ill treat Sakharabai and asked her to leave house. According to P.W.2 Vithoba, the accused refused to give her sheeps, etc. as promised. However, as per the evidence of P.W.4 Mhasu, the accused had actually given sheeps, goats, horses and two acres of land to Sakharabai. P.W.4 Mhasu deposed that accused Vedoba asked Sakharabai to return document under which he had promised to give land and cattle to her. For this purpose, he used to beat and drive her out from the house. Evidence of both the witnesses shows that she was last driven out from the house at the time of festival of Pola. P.W.2 Vithoba deposed that when she came to his house at the time of festival of Pola, she told him that her husband used to beat her and had driven her out from his house. P.W.4 also supported this part of the evidence. Then a meeting of the members of their community was called at Bhairoba temple. The persons attending the meeting advised accused Vedoba to treat Sakharabai properly. However, he refused to take Sakharabai back and threatened to cut her legs and hands if she would come to his house. In spite of this, 6 Sakharabai was sent alongwith her husband. 6 Evidence of P.W.2 Vithoba shows that on the next day, he went to the house of the accused but did not find anybody. Thereafter he went to Yeola police station and informed that Sakharabai was missing. According to him on next Thursday, Suryabhan came to his house and informed that deadbody of Sakarbai was floating in his well. P.W.2 Vithoba immediately went to P.W.3 Parshuram, who was Sarpanch of the village. P.W.2 and P.W.3 went to the spot. Police were informed about it. Deadbody of Sakharabai was taken out. According to them, there were some bleeding injuries on the deadbody. Police prepared spot panchanama Ex.25 of the well and inquest panchanama Ex.24 and the dead-body was sent for post-mortem examination. Evidence of P.W.1 Dr. Dnyaneshwar Gokhale, who was medical officer of Municipal Dispensary, Yeola shows that he received deadbody of Sakharabai on 3.9.92. Next morning he performed post-mortem examination. There were in all 7 ante-mortem injuries on the body. However, cause of death was asphyxia due to drowning. Injuries were lacerated wound on her left and right forearms, chin, left middle finger , on the posterior aspect of the left hand, anterior aspect of the left and right thighs. Dr. Gokhale turned down the suggestion that these injuries could have been possible 7 due to fall in the well. It is material to note down that as per the spot panchanama, depth of the well was 25 feet, but water was only 3 feet from the ground surface. The well had parapet wall. Diameter of the well was 16 feet. Thus, it appears that it was quite a big well and almost full of water. In view of this, it was impossible to sustain injuries due to the accidental fall in the well. Further no material has been brought on the record by the defence to show that Sakharabai had left the house to bring water from the said well and that she could have fallen in the well accidentally. Distance of the well from the place where this family was living is also not brought on record either in the examination-in-chief or in the cross-examination. No rope or pot or bucket was seen on the spot, which could indicate that she might be trying to draw water from the well. The learned trial Court rightly noted that there is no material to show that anybody had thrown her in the well to cause her death and, therefore, prosecution could not prove that it was homicidal death. In view of the above circumstances, the only inference which could be drawn is that Sakharabai must have jumped into the well and committed suicide. 7 Evidence of P.W.2 Vithoba and P.W.4 Mhasu goes to show that accused no.1 Vedoba used to beat and illtreat her and had driven her 8 out from the house and was not willing to accept her in his house and that he had threatened to cut her legs and hand if she would enter the house. But in spite of this, she had gone to his house after the unsuccessful meeting at Bhairoba temple. After that meeting Sakharabai did not meet her brother or maternal uncle at any time. Only her deadbody was seen by them in the well. It appears that her death occurred within a day or two after the said meeting. P.M.Report shows that there were in all 7 ante-mortem injuries on her body. Injuries could not be caused accidentally due to fall in the well as stated earlier. They also did not appear to be self inflicted and, therefore, only inference which may be drawn is that she was beaten before she jumped in the well to commit suicide. In view of the oral evidence of her brother Vithoba and maternal uncle Mhasu and the injuries found on the body, it can be inferred that the accused no.1 must have beaten her as per threats given by him. 8 On behalf of the defence, D.W.1 Kisan, who is maternal uncle of the accused Vedoba, was examined. According to him, on the Sunday morning, accused no.3 Rama had come to call him for the meeting to be held on Monday morning. According to him, Rama had told him that the meeting was called to ask Sakharabai to live separate 9 from her husband and the meeting was conveyed by the accused no.1 Vedoba. According to D.W.1 Kishan, he attended the meeting. Accused no.1 Vedoba, accused no.3 Rama, Accused no.4 Chandu, Sakharabai and others also attended the meeting. According to him, accused Vedoba had told in the meeting that he was beaten by Sakharabai and Shaligram as Sakharabai was having illicit relations with Shaligram and, therefore, he was not wiling to co-habitate with Sakharabai. According to him, accused Vedoba also apprehended danger to his life from them. In the cross-examination of P.W.2 Vithoba, it was put to him that in the meeting accused no.1 Vedoba had alleged that Sakharabai had illicit relations with Shaligram and that they had also beaten Vedoba. This suggestion was turned down by Vithoda. It is material to note that in his statement under Section 313 of the Cr.P.C., accused no.1 did not utter a word about the illicit relationship of Sakharabai with Shaligram or that he was beaten by them or that he had apprehension about the danger to his life and, therefore, he wanted to live separately from Sakharabai. About the allegations of illicit relationship of Sakharabai and Shaligram, no independent witness from the said meeting was examined. D.W.1 Kishan was maternal uncle of the accused no.1. As accused no.1 himself did not utter a word about such illicit relationship in his statement under 10 Section 313 of the Cr.P.C. Therefore, much importance can not be given to the evidence of Kisan in this respect. 9 D.W.1 Kisan gave important admission in the cross- examination that though the meeting was disturbed, Sakharabai went alongwith her husband Vedoba. This statement of Kisan provides corroboration to the testimony of P.W.2 Vithoba and P.W.4 Mhasu that in spite of threat given by Vedoba, Sakharabai went to his house alongwith him after meeting. From this it is clear that in spite of that unsuccessful meeting, Sakharabai insisted to live with her husband and went alongwith him but from the next day, she was not seen alive and finally deadbody was found with so many injuries on her person. Therefore, inference can be drawn that after she went to her husband’s house , she must have been beaten and being fed up of such illtreatment by the husband and his refusal to keep her with him, she committed suicide. 10 Taking into consideration all the facts and circumstances, it must be held that even though for a long period after the marriage, accused no.1 Vedoba and Sakharabai had cordial relations but as she could not give birth to the child, accused Vedoba was unhappy and wanted to re-marry. She also gave her consent for his second marriage. Attitude of accused Vedoba changed towards Sakharabai after birth of 11 male child from the second marriage. While Sakharabai wanted to live with her husband in spite of the second marriage, he began to illtreat her and forced to leave the house. When she refused to leave the house, he used to beat, illtreat and drive her out from the house. This was certainly mental and physical cruelty, which could drive her and which finally drove her to commit suicide. In view of the facts and circumstances, he was rightly convicted for the offence punishable under Section 498A of the I.P.C. 11 At this stage the learned counsel for the appellant prayed for the lenient view in respect of the sentence on the ground that accused was aged 42 years at the time of commission of offence and now a period of more than 18 years have passed. According to him, accused is a senior citizen aged about 60 years plus. Offence under Section 498A is punishable with imprisonment which may extend to three years and with fine, therefore, sentence of imprisonment is mandatory. In the given circumstances, when the accused had subjected his wife to cruelty and as a result of which she committed suicide, in my considered opinion, sentence of imprisonment of one year is not excessive or too harsh. Merely because he is aged about 60 years, he can not be let off merely by paying fine. 12 12 For the aforesaid reasons, appeal stands dismissed. Accused to surrender before the trial Court within four weeks from this date to undergo sentence. (J.H. BHATIA,J.) 13 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.386 OF 1993 Vedoba Ravba Aayner aged 25 years, Occupation Shepherd, Resident of Bangaon, Taluka: Nandgaon, Dist. Nasik ...Appellant. (Org. Accd.No.1) v/s. The State of Maharashtra (to be served through the Learned Public Prosecutor High Court, Appellate Side, Bombay) ...Respondent. Mr. S.V.Kotwal a/w M.S.Mohite, advs. For the Appellant. Smt. G.P.Mulekar, APP for the Respondent/State. CORAM : J.H. BHATIA, J. DATED : JANUARY 6, 2011. P.C.: 1 For the reasons recorded separately in the judgment , appeal stands dismissed. Accused to surrender before the trial Court within four weeks from this date to undergo sentence. (J.H.BHATIA, J.)