criapl66.99 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 66/1999 Shri Baijnath Trimbak Patil, Age : 33 years, R/o Bhilkheda, Tq. Jamner Dist. Jalgaon. ...Appellant. Versus The State of Maharashtra, through Public Prosecutor, High Court, Aurangabad. ....Respondent. Mr. G.V. Wani, Advocate for appellant. Mr. T.S. Lodhe, A.P.P. for respondent sole. CORAM : A.V. NIRGUDE, J. Date : 1st December, 2010. ORAL JUDGMENT :- 1 This appeal is filed against the judgment and order passed by the learned II Additional Sessions Judge, Jalgaon dated 10/12/1999 in Sessions Case No. 296/1994 in which the appellant, who was accused No.1 in the lower Court, was convicted under Section 306 and 498-A of Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.2,000/- with a default clause for the offence punishable under Section 306 of Indian Penal Code and further sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000/- with default clause for the offence punishable under Section 498-A of Indian Penal Code. 2 The case of the prosecution is as under. The appellant got married to Mirabai the daughter of the complainant in the year 1988. Some time in the month of January or criapl66.99 2 February, 1990 the appellant refused to sent Mirabai to her mother’s house and so the complainant, the mother of Mirabai approached criminal Court for warrant of production under Section 97 of Cr.P.C. against the appellant. Pursuant to the warrant, Mirabai was produced before criminal Court at Pachora. The learned Magistrate asked her whether she would stay with her husband to which Mirabai answered in negative and thereafter, the learned magistrate sent Mirabai with her mother the complainant. Mirabai thereafter stayed with her mother and thereafter lodged a case under Section 125 of Cr.P.C. against the appellant for maintenance. But on 07/01/1991 the parties arrived at a compromise and a writing was executed between them. After this writing was executed, Mirabai went to reside with the appellant. Mirabai committed suicide on 20/12/1993 while she was staying with the appellant. In this admitted background, let me now narrate the alleged case of the prosecution. 3 It is the case of the prosecution that the appellant and his mother used to ask Mirabai to bring cash from her mother and on account of such demand, they used to assault her. In 1990, Mirabai sent a message to her mother about this demand. The complainant went to see her daughter but the appellant and his mother refused to send Mirabai with her mother. Due to this incident, as said above the complainant was constrained to approach the learned Judicial Magistrate (First Class) at Pachora, for the production warrant etc.. Even after the compromise that took place on 07/01/1991, the conduct of the appellant did not improve. He and his mother continued assault on Mirabai. During these days, the complainant handed over Rs. 15,000/- to Mirabai for giving said amount to the appellant and his mother. Some time, prior to Diwali of 1993. Mirabai came to her criapl66.99 3 mother’s house. She showed weal marks on her person stating that they were marks of violence meted out to her by appellant. Mirabai stayed with her mother for about one month and thereafter, the appellant took her back. Soon thereafter, Mirabai committed suicide. The complainant lodged the report to the police and after investigation was completed, the charge sheet was filed. As said above, the appellant and his mother were tried for the offences punishable under Section 306 and 498-A read over section 34 of Indian Penal Code. 4 The prosecution examined in all four witnesses. The prosecution witness No.1 is the most important witness. She is the complainant, the mother of the deceased. She narrated in detail as to what had happened during the married life of her daughter Mirabai. She said, after the marriage in 1988, the appellant and others treated Mirabai properly for about one year. But thereafter, she said, her daughter reported to her that the appellant and his mother had demanded cash from her. She said, she gave Rs.5,000/- to her daughter. She then said that in the year 1990 her brother in law, the brother of her late husband went to meet Mirabai at the house of the appellant and brought a message from Mirabai. Receiving this message, the complainant went to see her. The complainant said that at that time, Mirabai told her that her husband and her mother in law were assaulting her. The complainant said that she requested them to send Mirabai with her but the appellant told her that they would not send Mirabai back unless they could break her limbs etc.. The complainant said that she returned back and immediately sent her brother in law to fetch Mirabai. Even then she said, the appellant did not permit Mirabai to go with her uncle. So, the complainant said, her brother in law filed an application for warrant of production under criapl66.99 4 section 97 of Cr.P.C. in the criminal Court. The complainant said that her daughter was brought before the Court and was given in her custody by the Court. She said, thereafter her daughter stayed with her for about 12 months. Thereafter, she said, appellant and his friend came and requested her to send Mirabai back. She said, before sending her daughter, the appellant executed an agreement on a stamp paper assuring that he would treat Mirabai well. She said, for next 12 months there was no complaint from her daughter but thereafter she said the appellant and his mother started assaulting Mirabai. During that time, she said, the appellant met with an accident and sustained fracture of limb. At that time, she said, the appellant demanded money to her and she said, she gave Rs.10,000/- to him. She said, since her daughter Mirabai could not beget children, the appellant and his mother ill treated her. 5 She said further that during Diwali festival of 1993 her daughter came to her house. She said, at that time, she saw wheel marks on the body of Mirabai. She said, Mirabai told her that she was beaten up by the appellant when she sought permission to go to her mother’s house. The complainant further stated that for one month her daughter stayed in her house. She said, thereafter the appellant came to take her back. She said, at that time, her daughter Mirabai was not willing to go back to her husband but she said, she convinced her that she should go back to her husband as it was not proper for her to stay with her. She said, the appellant promised that he would not ill treat his wife. 12 days after this, she said, Mirabai committed suicide by consuming poisonous substance. In the cross examination, this witness admitted that (i)she asked her daughter to go back to her husband every time because she thought that the dispute between the criapl66.99 5 spouses was minor in nature; (ii) that despite all the allegations, she did not apprehend danger to the life of her daughter and (iii)that the appellant suggested to her that the amount which she had given to him was a hand loan and that the appellant promised her to repay the amount. 6 The next witness was (P.W.No.2)Nivrutti the younger brother of the deceased. In 1999 when his deposition was recorded, he said, he was 18 years old. This means he was born some time in 1980-81. While he was only 8 years old, Mirabai got married to the appellant. But this witness categorically stated that when the appellant executed the agreement on the stamp paper, he was present and he further stated that the could identify the signature of the appellant and the witnesses on it. No doubt, in 1991 when the document was executed, this witness was ten years old. The cross examiner could have asked him as to how he as a ten years old boy could attend the event of execution of the agreement, but the cross examiner did not ask any question to this witness in respect of the execution of the agreement on the stamp paper as well as the witness's presence at that time. This area is completely ignored during the cross examination. 7. The prosecution witness No. 3 is the witness for the agreement on the stamp paper. This witness stated that he went to Pachora Court along with the appellant when the case was compromised between the appellant and his wife Mirabai. He said, according to the compromise, an agreement was written and was executed in the Court. He said, he had put his thumb mark on it and he identified his thumb mark on it. This witness however did not say specifically that the appellant had put his signature in his presence on the agreement. criapl66.99 6 He further admitted that the contents of the agreement were not written in his presence. Nonetheless, the evidence that has come on record in respect of the agreement, is quite sufficient to hold that the agreement was properly proved by the prosecution. The learned judge had exhibited the document and I find no error in it. 8 The learned judge of the lower Court thus believed the case of the prosecution, specifically the deposition of the prosecution witness No.1 and convicted the appellant. The learned advocate appearing for the appellant contended that, entire case of the prosecution is an exaggeration and unbelievable. He said, if at all the complainant had seen marks of violence on the person of the deceased, when during Diwali festival of 1993 why did not she refer her to a Medical practitioner for treatment? Admittedly, this was not done he said. He pointed out that there is no medical evidence in respect of such injuries allegedly caused by the appellant and so, there is no corroboration to the deposition of the prosecution witness No.1 on this point. I am afraid, the defence is expecting too much, from a mother whose daughter was beaten up by her husband a few days prior to her arrival at her house. Such expectation would really go against the human conduct. It is too much to expect from the complainant that she would promptly take her to a medical practitioner for treatment. This so called lapse on her part thus, is not fatal to her deposition on this point. The learned advocate appearing for the appellant further asserted that the evidence of the complainant is untrustworthy because on every occasion she sent her daughter back to the appellant because admittedly she believed that the dispute between the spouses was of minor nature and that there was no apprehension to the life of her daughter. In other words, the criapl66.99 7 appellant’s advocate is suggesting that the complainant probably realised that her daughter was exaggerating about the dispute between the spouses and wisely ignored it and without hesitation sent her daughter back to the appellant. He suggested that it is only after the death of the deceased the events were blown out of proportion. I am afraid, this argument is not acceptable at all. In our society, generally a married daughter does not belong to her mother’s house. When she comes to her mother's house, even with a complaint against her husband, she is considered a liability. Such liability is financial as well as social. So, parents of a married daughter generally do not allow their daughter to stay with them for a longer period, even though the daughter does not want to stay with her husband on account of ill treatment or other marital problem. The parents generally insist on their daughter that she belonged to her husband and should stay with him, come what may. They convince her (wishfully) that the things would be all right after a few days etc.. In our society, the daughters are so helpless -probably because of economic reasons- that they have no choice but to listen to their parents. 9 This particular case is an extreme example of the social problem our society is facing. This is a case the trouble started between the parties within 1 ½ years from the date of their marriage. The uncle and mother of the deceased were constrained to approach the criminal court for issuance of search warrant against their grown up daughter who was detained by her husband. The learned magistrate was kind enough to issue search warrant believing the allegations of the uncle of the deceased that the deceased was confined by her own husband, in such circumstances that the criapl66.99 8 confinement amounted to an offence. Indeed, this was an unusual case for issuance of search warrant under Section 97 of the Cr.P.C. It was issued against the married woman’s husband and mother in law. Although the order issuing search warrant would look rather unusual, it yielded fruitful result. The appellant produced his own wife before the Court and the learned magistrate allowed the appellant’s wife to go back to her mother. The original record of that case was not produced before the Court. But I am sure, the record of that case would have thrown better light on that particular event. This circumstance clearly indicates that the appellant was not treating his wife with love and affection. His wife was not at all happy with him and probably with her mother in law also. She did not want to stay with them. She came back to her mother and stayed there for one long year. 10 It is thereafter, the appellant who sought settlement of the dispute and on 07/01/1991 he executed the agreement in which he promised that he would treat his wife properly thenceforth. I am not giving much importance to the contents of the agreement because they are lopsidedly against the appellant. None the less, it can surely be said that at that time, the appellant was on the wrong side of the bargain and was under constraint to almost admit his misdeeds and agreed to treat his wife properly. Thereafter, about 2 ½ years, apparently there was peace between the parties but at the time of Diwali of 1993 as said above, the deceased again requested her mother not to send her back to the husband. She was reluctant to go back and it was only after the appellant’s assurance that he would treat her properly, the complainant sent her back. This indeed was a gross case where victim was treated with contempt and cruelty. criapl66.99 9 There is no dispute between the parties that the appellant had received a sum of Rs.15,000/- from his mother in law. The appellant tried to suggest that the amount was taken as a hand loan. But he did not suggest to the complainant or to the prosecution witness No. 2 Nivrutti that the appellant had made any attempt to repay the loan which he had taken from his mother in law. The appellant’s suggestion that the amount he received from his mother in law was hand loan, appears to be incorrect because his cross examiner took an admission from the complainant that the appellant’s financial condition was good. In that case, there apparently was no reason for the appellant to obtain hand loan from his mother in law. In our society, seeking loan is considered to be admission of weakness and one would feel awkward to seek loan from his in laws. So, though the complainant admitted that the amount was a hand loan, in all probability it was given on account of coercive demand of the appellant. In view of this, the prosecution has amply proved that the appellant had treated his wife with cruelty with a view to coercing her or her mother to meet his unlawful demands. In view of this, the offence under Section 498-A of Indian Penal code is clearly proved against the appellant. 11 Then next question is whether offence under Section 306 of Indian Penal code can be proved against the appellant. The victim admittedly committed suicide. The question is whether the appellant had abetted the suicide of his wife. Section 113-A of the Indian Evidence Act, 1872 reads as under. 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 abeted 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 criapl66.99 10 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 have the same meaning as in section 498-A of the Indian Penal Code. 12 In this case, the deceased committed suicide within a period of seven years from the date of her marriage. It is further proved that the appellant / her husband had subjected her to cruelty and so the Court is able to presume having regard to other circumstances of the case that the appellant had abetted such suicide. Nothing has come on record to rebut such presumption or to prevent the Court to presume against the appellant. The appellant tried to take the defence that his wife committed suicide because she was unable to beget a child. He thereby suggested that since she was unable to beget child, she was depressed and in the fit of depression, she had committed suicide. But the appellant has failed to bring on record that the issue of infertility of the deceased was very serious and that the deceased had sought medical help to cure her it etc. It has neither come on record that the appellant and his wife took medical advice on this issue and the Doctors informed them that it was due to the infertility of the wife, the couple was unable to get a child. In that case, a young woman having married with only five years, would generally get depressed. The appellant has not made serious attempt to high light this point in his statement under Section 313 or by adducing evidence on it. So, his mere suggestion that the deceased might have committed suicide because she was depressed on account of her infertility etc., is not at all acceptable defence. In view criapl66.99 11 of this, the learned judge of the lower Court made no error in presuming that the appellant had abetted the suicide of his wife and convicted him under Section 306 of Indian Penal Code and the appeal should therefore fail. At this stage, Shri. Wani, learned Advocate appearing for the appellant pleaded for leniency and sought substantial reduction in substantive sentences. The learned Judge of the lower Court sentenced the appellant for five years rigorous imprisonment for the offence punishable under Section 306 of the Indian Penal Code and three years rigorous imprisonment for the offence punishable under Section 498-A of the Indian Penal Code. Shri Wani points out that the incident in question took place in 1993, the trial remain pending for nine years when it was disposed of in 1999. Thereafter, this appeal is pending almost eleven years. He said, the appellant suffered the pendency of the criminal case for almost seventeen years now. In the mean time, he said, the appellant has remarried and has now three minor children. The eldest one is eleven years old. He further informed that the appellant developed a heard disease and at present he is under constant medication. Having regard to all these mitigating circumstances, I am inclined to reduce the substantive sentence for one year. ORDER 1. The appeal is partly allowed. 2. The appellant is sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 2,000/-, in default to suffer further rigorous imprisonment for one month for the offence punishable under Section 306 of the Indian Penal Code. 3. The appellant is also sentenced to suffer criapl66.99 12 rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default to suffer further rigorous imprisonment for fifteen days for the offence punishable under Section 498-A of the Indian Penal Code. 4. Both these sentences shall run concurrently. 5. The appellant has already deposited the fine amount. 6. The appellant is also entitled to set off. 7. The appellant is taken in custody. [A.V.NIRGUDE, J.] ts k/ok