1 Cri.Appeal 214-97 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.214 OF 1997 Nathaji Vitthal Kumbhar ..Appellant Aged : 23 years, Resident of Waghapur, Taluka Budargad, District Kolhapur. V/s. The State of Maharashtra ..Respondent Mrs.P.U.Badadare, Advocate, for the Appellant Mrs.A.A.Mane, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. JUDGMENT RESERVED ON : 20TH JANUARY, 2011 JUDGMENT PRONOUNCED ON: 21ST FEBRUARY, 2011 JUDGMENT . This Appeal is directed against conviction of the Appellant by the learned 5th Additional Sessions Judge, Kolhapur for the offence punishable under Sections 306 and 498A of the Indian Penal Code and sentence of rigorous imprisonment for seven and three years with a fine of Rs.2000/- and 1000/- respectively imposed upon the appellant on 2 Cri.Appeal 214-97 conclusion of Sessions Case No.38 of 1996 before him. 2. Facts which are material for deciding this Appeal are as under :- Deceased Vaishali was married to the appellant on 3rd June, 1994. She was illtreated by the appellant, who made several demands from her parents. Attempts by victim's father to mollify the appellant failed. On 14th June, 1995, the first informant had been informed that the victim was missing since 13th June, 1995. Victim's dead body was found in the well which is just near the house of the appellant. The dead body was fetched out and sent for post mortem examination. The post mortem examination revealed that the victim had died of Asphyxia due to drowning. On report by victim's father, an offence was registered on 16th June, 1995. The police had already performed 3 Cri.Appeal 214-97 inquest before sending the dead body for post mortem. They had also performed panchanama of the spot. They recorded statements of witnesses and on completion of investigation sent charge sheet to the learned Judicial Magistrate First Class, Gargoti, District Kolhapur, who committed the case to the Court of Sessions at Kolhapur. 3. The appellant, along with his parents, was charged by the learned Additional Sessions Judge, Kolhapur of the offence punishable under Sections 498A & 304B as also Section 306 of the Indian Penal Code. All the accused pleaded not guilty to the said charge. In its attempt to bring home guilt of the accused, the prosecution examined in all five witnesses. After considering their evidence in the light of the defence raised, the learned Additional Sessions Judge held the appellant guilty for the offence punishable under Sections 498A & 306 of the Indian Penal 4 Cri.Appeal 214-97 Code and sentenced him as indicated in the earlier part of the Judgment. He acquitted the appellant as well as the co-accused of the offence punishable under Section 304B of the Indian Penal Code and also acquitted the co- accused of the offence punishable under Section 498A and Section 306 of the Indian Penal Code. Aggrieved by the conviction and sentence imposed upon him the appellant preferred this Appeal. 4. I have heard the learned Counsel for the appellant and the learned APP for the State. With the help of the learned Counsel I have gone through the evidence tendered. The inquest panchanama and panchanama of the spot as also the Medico-Legal Certificate, panchanama of seizure of victim's clothes, notes of post mortem examination were admitted by the defence. The panchanama of the spot at Exhibit 11 shows that the well was constructed in Cement and Stone and had three pulleys for 5 Cri.Appeal 214-97 drawing water. This description would rule out the possibility of the victim falling in the well accidently. 5. The notes of post mortem examination show that there were no surface wounds and the cause of death was Asphyxia due to drowning. 6. Victim's father Malhari, who was examined as P.W.1 stated that victim visited her house after her marriage. He stated that the appellant sent a letter when the victim was at his house. This letter dated 31st October, 1994 which is marked as Exhibit 21 and is in the handwriting of the appellant shows that the appellant had made a demand of clothes and Gold chain by this letter. The appellant had also added in that letter that the victim should be taught as to how she should use the Marathi language. P.W.1 Malhari stated that on receipt of this letter, he went to his relation, Pandurang Satappa 6 Cri.Appeal 214-97 Kumbhar, who was examined as P.W.2 and showed him the said letter. He claimed that he as well as one Satappa Kumbhar had gone to the adoptive brother of the appellant, when the adoptive brother of the appellant also stated that the appellant might have demanded ring and clothes because of Festival of Diwali. Thereafter, Vaishali was sent back to the appellant's house presumably without fulfilling the appellant's demand. On 19th November, 1994, the victim sent a letter to P.W.1 Malhari stating that she had been beaten up by the appellant and had been forced to write a letter to her father. This letter at Exhibit 22 makes a pathetic reading. There was another letter dated 20th November, 1994 which is at Exhibit 23 written by the appellant. The tenor of this letter shows that the appellant was angry because appellant's letter demanding ring and clothes was shown by the victim's father to the relations. The appellant had audacity to say 7 Cri.Appeal 214-97 in the letter, that if the victim's father wanted letters, he would send similar letters again and that his thoughts would not change. He had threatened that he would take revenge because his letter had been shown by the victim's father to others. Victim's father also produced letter at Exhibit 24 dated 14th September, 1994 written by the victim. The letter shows that the victim was not treated well by the appellant and she blamed her fate. She had stated that it was her last expectation from her father and that if by giving 1/2 tola Gold she would be saved of the trouble, her father may do that and that she would not ask for anything till she dies. 7. P.W.2 Pandurang Satappa Kumbhar, who is related to the parties stated that the appellant was illtreating the victim intentionally. He stated that the victim conveyed about this illtreatment when she visited his house. He claims that when he 8 Cri.Appeal 214-97 tried to tell the accused not to illtreat Vaishali, the accused advised him not to visit their house. In cross examination this witness stated that the adoptive brother of the appellant mentioned that there was nothing wrong in the demand made by the appellant. Thus, as far as demand and illtreatment is concerned, the evidence of both P.W.1 and P.W. 2 is convincing. 8. P.W.3 Srikant Malhari Londhe is brother of the victim. He too stated about illtreatment meted out to the victim, about which the victim had spoken to him. The cross examination of the three witnesses does not reveal anything to warrant disbelieve in their words. 9. P.W.4 ASI Shivmurti Krishna Kamble had received report of the appellant that the victim was missing. This report was received on 14th June, 1995. On 15th June, 1995 the 9 Cri.Appeal 214-97 appellant lodged report of an accidental death. This report at Exhibit 29 does not show any concern about the victim but contains an allegation that the victim had left the house without informing anyone. It would, thus, show that the appellant knew that the victim had left the house, indicating a possibility that there was some discord. It may be re-called that the dead body was eventually found in a well which was just behind the house of the appellant. 10. P.W.5 API Rajaram Yashwant Shinde conducted investigation by examining witnesses in this case. He had admitted that he had obtained the hand writing of the appellant to show that the letters were written by the appellant. 11. The learned Counsel for the appellant submitted first that the hand writing of the appellant was not examined to establish that 10 Cri.Appeal 214-97 the letters in question were written by the appellant. She submitted that it had been suggested to P.W.1 Malhari that the letters were falsely prepared in order to pressurize the appellant. However, if it was so, it was open to the appellant also to seek that the letters should be sent for examination by hand writing expert. He had not made any such demand at the trial. P.W.1 Malhari had identified the writing of the appellant. On going through the letters of the appellant as well as the victim, they appear natural and could not have been fabricated. In fact, victim's letter makes a very pathetic reading. Therefore, it cannot be said that the evidence of P.W.1 Malhari, P.W.2 Pandurang and P.W.3 Shrikant, along with the letters which had been produced, was not enough to conclude that the victim was subjected to illtreatment because the victim's father had refused to comply with the demand of Gold ring and clothes. 11 Cri.Appeal 214-97 12. The learned Counsel for the appellant submitted that such conclusion could not be drawn and for this purpose relied on some Judgments. In Satish Fakira Dhangar & Ors Vs. State of Maharashtra, reported at 2009 ALL MR (Cri) 2083, it was held by this Court that mere allegations of harassment made by deceased would not be sufficient to constitute the offence of cruelty and that the accused cannot be convicted on the basis of sweeping allegations about matrimonial cruelty. This Court had held for raising presumption under Section 113-A of the Evidence Act, appropriate substratum to infer degree of cruelty which could drive deceased to commit the suicide was required to be established. 13. She further relied on two Judgments in S.S.Chheena Vs. Vijay Kumar Mahajan & Anr., reported at 2010 ALL MR (Cri.) 3298 (S.C.) and in Gangula Mohan Reddy Vs. State of Andhra Pradesh, reported at (2010) 1 SCC 750, where 12 Cri.Appeal 214-97 the Supreme Court held that in order to convict a person for the offence punishable under Section 306, there has to be a clear mens rea or an active or direct act which lead to victim to commit suicide. The Court had set aside the conviction of the accused in that case. 14. In MAHENDRA SINGH AND ANOTHER Versus STATE OF M.P., reported at 1995 Supp (3) Supreme Court Cases 731, the Supreme Court held that the conviction for abetment of suicide could not be sustained merely on the allegation of harassment to the deceased. In Rajbabu & Anr. Versus State of M.P., reported at AIR 2008 SC 3212, the Supreme Court held that the allegations made against accused in that case were not enough to sustain conviction of the accused therein. The Court considered the provisions under Section 113-A of the Evidence Act and observed that it must be shown that the woman has committed suicide; 13 Cri.Appeal 214-97 such suicide had been committed within a period of seven years from the marriage and husband or his relatives had subjected such woman to cruelty. Upon existence of these circumstances, according to the Supreme Court, the Court may presume that suicide had been abeted by her husband or her relatives. 15. There can be no doubt about the proposition that in the absence of any direct evidence about provocation to commit suicide, the Court would have to look into the circumstances which would enable it to presume that the victim had been pushed to commit suicide. In this case, the victim had obviously committed suicide since the well was not one where the victim could have accidently fallen. It has also to be re-called that the appellant did not complain to the parents that the victim was missing but complained to police that she had left the house, with the implication that the appellant knew that there 14 Cri.Appeal 214-97 was something wrong. The victim was married on 3rd June, 1994 and died on 14th June, 1995 i.e. within a year & few days of marriage. As far as illtreatment and demand are concerned, apart from the evidence of P.W.1, P.W.2 and P.W.3 the letters written by the appellant as well as the victim point to illtreatment emanating from failure to comply with demands. Thus, all the requirements which have been laid down for drawing the inference victim had committed suicide on account of her illtreatment or that she was driven to commit suicide have been fulfilled. It cannot, therefore, be said that the learned Sessions Judge erred in concluding that the appellant had subjected the victim to cruelty covered by Section 498A of the Indian Penal Code and thus, had abeted commission of suicide by her. Conviction of the appellant for the aforesaid offences by the learned Additional Sessions Judge, therefore, has to be upheld. 15 Cri.Appeal 214-97 16. This takes me to the question of sentence. The learned Additional Sessions Judge had considered the pleas of the accused on the question of sentence and had concluded their sentence of rigorousment for seven years for the offence punishable under Section 306 and rigorous imprisonment for three years for the offence punishable under Section 498A of the Indian Penal Code would be warranted. The learned Counsel for the appellant submitted that the appellant was convicted almost 14 years ago for an offence which took place sixteen years ago and thus been living in shadow of conviction and therefore, sentence of imprisonment inflicted upon the appellant is harsh. She also submitted that the appellant was just 23 years old when he was put to trial and therefore, a lenient view ought to have been taken. In my view, considering the attitude exhibited by the appellant in his letters which have been duly proved, as also the pathetic condition to 16 Cri.Appeal 214-97 which the victim was subjected which is depicted from her letter to her father, the sentence imposed upon the appellant cannot be said to be harsh. 17. In view of this, Criminal Appeal is dismissed. (R.C.CHAVAN, J.)