1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 81 OF 1998 1. Sakhubai w/o Shankar Shinde, Aged 45 years, Occupation Household, Resident of Samatanagar, Zopadpatti, Paranda, Taluka Paranda, District Osmanabad. 2. Bapu s/o Shankar Shinde, Aged 25 Years, Occupation Labour, Resident of as above. Appellants V E R S U S The State of Maharashtra Respondent Mr. M.S.Patil, Advocate for the appellants Mr. D.R. Korde, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 7th June, 2010 ORAL JUDGMENT 1. The appellants are challenging the Judgment and order in Sessions Case No. 117 of 1995 passed by the learned Additional Sessions Judge, Osmanabad, on 20th February, 1998, convicting them under Section 498A and under Section 306 read with Section 34 of the Indian Penal Code and sentencing them to suffer various terms of rigorous imprisonment. The prosecution case, in short, can be stated as under : 2 2. The appellant No.2 was married to one Sharda, the daughter of the complainant (PW 1). Their wedding took place two years prior to the suicidal death of Sharda. Soon after the marriage, it is alleged, the appellant started harassing, beating, abusing and ill- treating Sharda. She made mention of this to her parents and to her maternal uncle many times, but in vain. Ultimately, she committed suicide on 16th May, 2005 by hanging. Immediately after her death a complaint was lodged against the appellants, a crime was registered and after investigation was completed, a charge-sheet was filed. As said above, the learned Judge of the trial Court believed the case of the prosecution and convicted the appellants. The case of the prosecution depends mainly only on the depositions of two witnesses. The appellants admitted the suicidal death of Sharda and also admitted the post-mortem report. They further admitted the panchnama of scene of offence. As said above, the case of the prosecution depends only on material two witnesses, viz; Dhondiba, the father and Gautam, the maternal uncle of the deceased. 3. Dhondiba, in his deposition, stated that after Sharda’s marriage with the appellant No.2, for initial 2-3 months the appellants treated her properly. He said, thereafter, the appellants started harassing and ill-treating her. He said, the appellants even starved her. He said, he received a letter from his daughter and produced the same before the Court. He said, the letter was addressed to him, and thus, the letter was taken on record and marked as ‘Exh.28’. He said, after receipt of the letter, he went to see Sharda and persuaded her to say put and requested the appellants not to ill-treat her. He said, thereafter, he received a letter from one Indubai, who was his acquaintance about Sharda's plight. He said, after receipt of said letter too, he went to see Sharda and the appellants. He said he again persuaded the appellants not to ill-treat Sharda. Ultimately, on 16th 3 May, he received information that Sharda had expired. In the cross-examination, he admitted that Sharda had come to visit him on several occasions after the marriage. In the cross-examination, he further admitted that Sharda had complained to him regarding the ill-treatment. He said, Sharda had told him that she would bear the cruelty, but cohabit with the appellants. In the cross- examination, he further stated that Sharda told him about the details of the beatings given to her, and that, cause of beating was that Sharda’s house hold work was not satisfactory. 4. The contents of letter (Exh.28) are in Marathi and I perused the original letter, which is on a post-card. This letter is of 14th February, 1994, and in this letter, Sharda had written to her father that he should come and take her back to his house, because she was suffering from ill-treatment and beating. Although this letter is not in grammatically correct language, but the contents of it, clearly indicate that Sharda was trying plead to her father that she was in difficulty, she was being harassed and was being beaten up. She further pleaded to her father that he immediately should come to take her back to his house. She even said that if her father would not come to pick up her, he would not be able to see her alive. 5. The second prosecution witness is the maternal uncle of Sharda, one Gautam, Resident of Daithna, Taluka Uttam Solapur. He said, in April, 1994, Sharda and the appellants had visited his house for attending wedding ceremony of his brother. At that time, he had an occasion to inquire with Sharda and her husband as to whether they were happily staying together. He said, at that time, Sharda told him that the appellants were beating, abusing and ill-treating her on account unsatisfactory household work. He said, she even informed that the appellants were starving her. This witness further stated that Sharda had visited her sister at Solapur about five to six months prior to her death. He said, she came to her sister because of quarrels. 4 He said, the appellant No.2 was also with her then. He said, the couple resided at Sharda’s sister’s house for about 15 days to one month. He said, thereafter, the appellant No.1 came, abused her son, the appellant No.2, as well as Sharda and took them back to their village. This witness, in cross-examination, added that his village Daithna is only 5 k.m. away from Solapur. The short distance between his village and Solapur is a clear indication that this witness had occasion to see Sharda and the appellant No.1, when they had come to Solapur and stayed there for about one month. This witness further stated that he had occasion to see Sharda once again at village Degaon when she had come for attending funeral of her grand-mother. Even at that time, he said, Sharda told him that the appellants were beating, abusing and harassing her. 6. The first question that required to be answered is, whether these witnesses are trustworthy? The learned Advocate appearing for the appellants attacked their evidence branding them as ‘interested witnesses’. He asserted that since they are close relatives of the deceased, their evidence requires corroboration. He also asserted that the letter (Exh.28) cannot be taken into account, because the prosecution could not prove beyond reasonable doubt that the letter was in the handwriting of deceased Sharda. The learned Judge of the lower Court discarded these very submissions made before him and believed the testimonies of above mentioned two witnesses. The letter of deceased Sharda (Exh.28), in my view, provides corroboration to the depositions of these two interested witnesses. Besides the letter appears genuine with postal stamps etc. The letter was sufficiently proved. The prosecution witness No.1 Dhondiba specifically stated that he recognized the handwriting of his daughter Sharda and this statement of Dhondiba has not been contradicted at 5 all in the cross-examination. Neither the appellants in the defence produced on record admitted handwriting of deceased Sharda and that they could have urged the Court to compare the admitted handwriting of Sharda with the handwriting of Exh.28. In absence of this exercise, the submissions of the learned Advocate appearing for the appellants, is not acceptable. 7. The second question that is required to be answered in this case is, whether the alleged conduct of the appellants amounted to cruelty, as contemplated by Section 498-A of the Indian Penal Code. Section 498-A reads as under : “498-A – Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation – For the purposes of this section, “cruelty” means - (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical;) of the woman: or (b) harassment of the woman where such harassment is with a view to coercing her to any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” The learned Advocate appearing for the appellants contended that since the prosecution does not alleged demand of dowry as a reason for harassment, the case would not fall under Clause (b) of the Explanation of Section 498-A, defining the term ‘cruelty’. However, if the depositions of above mentioned two witnesses are believed, it would squarely fall within ambit of Clause (a) of the Explanation in which there is no mention of demand of dowry. Even in the substantive section there is no mention of 'demand of/for dowry'. So in order to constitute an offence under this section there is no need to 6 prove that the cruelty was meted out for demand or for extracting dowry from the victim or from her relatives. 8. The defence of the appellants is of total denial and they suggested that since village Paranda where the appellants and deceased stayed was several kilometers away from village Degaon where deceased Sharda used to reside before her marriage, she used to remain depressed, and in such depressed state of mind, she might have committed suicide. The appellants did not bring on record the distance between these two villages. In absence of this material on record, the defence cannot be taken into consideration. It seems, the defence is taken only for the sake of taking a defence. The learned Advocate appearing for the appellants also contended that the prosecution could not prove that immediately prior to the suicide, the appellants had harassed her. Indeed, there is nothing on record to show as to what happened on the day when Sharda committed suicide and what happened a few days earlier to it. However, it is not necessary for the prosecution to prove that immediately prior to the suicide the victim was harassed, abused, ill-treated etc. in order to prove the cruelty, as contemplated under Section 498-A. Section 498-A, which is quoted above, clearly defined the term “cruelty”, and as said above, this case squarely falls within the four corners of Clause (a) of the Explanation. There is no doubt that the appellants had subjected deceased Sharda to cruelty, so much so that it drove her to commit suicide. The offence under Section 498-A of the Indian Penal Code thus is proved against both the appellants. 9. The last question is, whether the appellants abetted the suicide of deceased Sharda. In order to answer this question, provisions of Section 306 of the Indian Penal Code are required to be read alongwith provisions of Section 113-A of the Evidence Act. Both the Sections are quoted below : Section 306 of the Indian Penal Code reads as under : 7 306. 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. Section 113-A of the Evidence Act reads as under : 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 have the same meaning as in Section 498-A of the Indian Penal Code. All the ingredients of Section 113-A of the Indian Evidence Act are satisfied in this case, and therefore, the presumption as to the abetment of suicide of Sharda would arise. The learned Judge of the lower Court presumed that the appellants had subjected Sharda with cruelty and so they abetted her suicide. Section 113-A uses word “may”. This word would give ample opportunity to the appellants/accused to show on probability that the Court might not presume that they abetted the suicide of the married woman. Unfortunately for the appellants of this case, they brought nothing on record to rebut the presumption of which mention is made above. 10. The learned Advocate appearing for the appellants invited my attention to Paragraph No.11 of the Judgment of Supreme Court in the case of Kamesh Panjiyar @ Kamlesh Panjiyar V. State of Bihar (AIR 2005 Supreme Court 785). Although the reported case was in respect of offence under Section 304-B of the Indian Penal Code read with Section 113-B of the Indian Evidence Act, there 8 is similarity of that case with this case. In this case, the offence is under Section 306 of the Indian Penal Code and so the provisions of Section 113-A of the Evidence Act are read for raising the presumption of abetment of sharda's suicide. The relation that exists between Section 304-B of the Indian Penal Code and Section 113-B of the Evidence Act is also similar. In this background, following paragraph is, according to the learned Advocate appearing for the appellants, relevant for our discussion, which reads as under : “11. A conjoint reading of section 113-B of the Evidence Act and section 304-B I.P.C. shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’. The expression ‘soon before’ is very relevant where section 113-B of the Evidence Act and section 304-B I.P.C. are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. ‘Soon before’ is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under section 113-B of the Evidence Act. The expression ‘soon before her death’ used in the substantive section 304-B I.P.C. and section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression ‘soon before’ is not defined. A reference to expression ‘soon before’ used in section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term ‘soon before’ is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be must between the concerned cruelty or harassment and the 9 death in question. There must be existence of a proximate and live-link between the effects of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.” The learned Advocate appearing for the appellants, on the basis of the observations, asserted that the prosecution has not brought on record any incident of alleged cruelty meted out to the deceased soon before her death. He pointed out that last of such incident, that has come on record, was of about five to six months prior to her death. He, therefore, contended that, that incident of alleged cruelty was not proximate and could not be said to be a 'live- link' between the cruelty and the suicide. He also asserted that in absence of any evidence in respect of incidents that took place in between these two events, the last mentioned incident of cruelty was remote in time and was not enough to disturb the mental equilibrium of the deceased. I am, however, not impressed with this submission. The evidence of the prosecution is quite simple and has come on record in the form of depositions of two witnesses. These two witnesses are close relatives of the victim. There is clear indication that these two witnesses made no effort to exaggerate the case of cruelty. It is also clear from the record that these witnesses had no occasion to meet the deceased immediately prior to her suicide. The prosecution witness No.2 lastly met the deceased about five to six months prior to the suicide. However, there is certainly a consistency in these two depositions on the point that the victim was continuously harassed by the appellants, and that, on every available opportunity, the victim was making complaint of the same to her father and other relatives. It seems, she was unable to keep daily contact with her father and other relatives. It has not come on record that the victim had means of communication such as a telephone etc by which she 10 could have had conversation with her father and other relatives. So, it cannot be said that because the prosecution could not prove any incident of cruelty between the last proved incident and the date of suicide, it would fail to prove its case. The submission of the learned Advocate appearing for the appellants that the provisions of Section 304-B of the Indian Penal Code and Section 113-B of the Evidence Act are akin to the provisions of Section 306 of the Indian Penal Code and Section 113-A of the Evidence Act is not entirely acceptable. The words used in substantive section of 304B “immediately prior to her death” are conspicuously absent in Section 306 and in S.113A. Therefore, above quoted observations of the Supreme Court may not squarely apply to the situation at hand. Yet the Court is required to examine, even in cases of this nature, as to whether the incidents of cruelty had any proximity or live-link with the suicide. But, facts of each case would decide as to whether there existed any link between the incidents of cruelty and the suicide. In this case, I think, the prosecution has amply proved that the appellants had subjected her to cruelty within seven years of marriage and so a case to raise presumption under Section 113-A of Evidence is clearly made out. The appeal should therefore fail. 11. The last question is, whether the appellants make out a case of reduction in the quantum of sentence. The learned Advocate appearing for the appellants submitted that the charge sheet wrongly mentions the age of the appellant no.1 at the time of incident as 45 years. He said, at that time she was about 61 years old. In support of submission, he produced on record copy of election card issued to the appellant no.1. On perusal of the same, it is seen that the appellant no.1’s age on 1st January, 1994 was 61 years. Even assuming that there is margin of error of 2 or 3 years on either side, the age of the appellant no.1 at present could not be less than 75 years. The learned advocate appearing for the appellants also informed that the 11 appellant no.1 could not move out of her house because of severe arthritis in the lower limbs. He therefore, sought leniency while awarding the sentence. I think, in addition to the circumstances mentioned above, the appellant no.1 has undergone agonies of this litigation for last more than 17 years and I think, looking to the age and her physical condition, as an extremely exceptional case, I am inclined to reduce the substantive sentence to the period already undergone. I am told that the appellant no.1 was in custody during investigation for about two weeks. As regards the appellant no. 2, the learned advocate appearing for the appellants said that he too is now old and has a family to look after. It is said that the appellant no.2 has re-married and has two children from his present wife. In view of this, and in view of the pendency of this litigation for last more than 17 years, I am inclined to reduce substantive sentence awarded to the appellant no.2 to some extent but it can not be reduced to the period already undergone as suggested by the appellants advocate. Hence, order : 1 Appeal is partly allowed. 2 The appellant No.1 is sentenced to suffer rigorous imprisonment for the period already undergone for both the offences punishable under Sections 498-A and 306 of the Indian Penal Code. The sentence of fine shall however remain undisturbed. 3 The appellant No.2 stands convicted under Section 498-A read with Section 34 of the Indian Penal Code and sentenced to suffer one year rigorous imprisonment. The amount of fine imposed on him for this offence shall remain undisturbed. 12 4 The appeal against conviction and sentence under Section 306 of the Indian Penal Code filed by the appellant No.2 stands dismissed. 5 Both the sentences shall run concurrently. 6 The appellant No.2 shall also be entitled to set off for the period already undergone. sd/- 7th June, 2010 (A.V. NIRGUDE, J.) srm/criapl/81/98/ok