Criminal Appeal No. 285 of 2001

28th January, 2002

Petitioner Counsel: Shri. J. A. ANTHONY
Respondent Counsel: Shri. DOIFODE

Cases Cited:
State of Maharashtra Vs. Ashok Narayan Dandalwar, 2000 Cri. L.J. 4993 [Para 9,12]
Arvind Singh Vs. State of Bihar, 2001 Cri. L.J. 2556 [Para 9,13]
Pawankumar Vs. State of Haryana, A.I.R. 1998 Supreme Court 958 [Para 10,14]
Pawankumar Vs. State of Haryana, 2001 Cri. L.J. 1679 [Para 15]
Pachipala Laxmaiah Vs. State of Andhra Pradesh, 2001 Cri. L.J. 4063 [Para 15]
Mr.Sushil Kumar @ Balwinder Singh Vs. State of Punjab, AIR 1996 SC 607 : 1995 AIR SCW 4555 : 1996 Cri. L.J. 883 [Para 15]
Lakhjit Singh Vs. State of Punjab, 1994 Supp. (1) SCC 173 : (1993) AIR SCW 2938 [Para 15]
State of Punjab Vs. Gurdip Singh, (1996) 7 SCC 163 [Para 15]
Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 : AIR 1984 SC 1622 : 1984 Cri. L.J. 1738 [Para 15]

JUDGMENT

Judgment :- The appellant/original accused No. 1 (hereinafter referred to as the appellant) and one Mariyam Begum Shaikh Safi (original accused No. 2) were tried by the learned 1st Ad-hoc Additional Sessions Judge, Wardha, in Sessions Trial No. 151/1998 on the charge of having committed the offences punishable under Section 498-A and 306, read with Section 34 of the Indian Penal Code. The learned trial judge, vide his judgment and order dated 26.9.2001, acquitted Mariyam Begum Shaikh Safi (original accused No.2) of both the aforesaid offences. However, he convicted the appellant for the offences punishable under Section 498-A and 306 of the Indian Penal Code. For the offence punishable under Section 498-A of the Indian Penal Code, the appellant has been sentenced to suffer R.I. for two years and to pay a fine of Rs. 1000/-, in default to suffer R.I. for three months, and for the offence punishable under Section 306 of the Indian Penal Code, he is sentenced to suffer R.I. for five years and to pay a fine of Rs. 5000/-, in default to suffer R.I. for one year. Both the substantive sentences, however, have been directed to run concurrently. This order of conviction and sentence is under challenge in this appeal.

2. Briefly stated, the case of the prosecution is as follows :

The deceased Halima was the daughter of P.W. Hajrabi. After expiry of her first husband, the deceased Halima married to the appellant- Shaikh Rashid s/o Shaikh Khudabux, resident of Hinganghat, District Wardha, on 24.8.1997. The deceased Halima was blessed with a son namely Shaharukh from her first husband. The appellant promised that he would maintain Shaharukh and, therefore, the marriage (Nikah) of the deceased Halima took place with the appellant on 24.8.1997. Mariyam Begum (original accused No. 2) is the sister of the appellant. She also resides at Hinganghat. About two months after the marriage, the deceased Halima's father, Shaikh Ramjan had been to her matrimonial home to fetch her back to his house, but the appellant refused to send her with him. Thereafter P.W. Hajrabi, the mother of the deceased Halima had been to the house of the appellant to fetch the deceased Halima back to her house on two occasions, but on both the occasions, the appellant and his father refused to send the deceased Halima to her parental home. At the second time, when P.W. Hajrabi had been to the matrimonial home of deceased Halima, the deceased Halima told her that her husband used to ask her to bring Rs. 500/- from her parents, and on non fulfillment of the said demand, he used to ill-treat and harass her. At the fourth time, i.e. in the month of March 1998, P.W. Hajrabi again went to the house of deceased Halima to fetch her back to her parental home along with her sister-in-law Sugrabi Shaikh Hanif and one Hafiz Saheb Abdul Sattar Abdul Raheman. At that time, the appellant, his sister Mariyam Begum (original accused No. 2), his father Khudabux, his mother and brother were present there. P.W. Hajrabi and her relatives, who were accompanying her at that time, requested the appellant to send the deceased Halima with them, but the appellant and his father refused to send her back with them and threatened P.W. Hajrabi saying that 'Mari Chhodenge, Jinda Nahi Chhodenge', meaning thereby that they would not leave her alive but kill her and by saying so, they beat the deceased Halima and, therefore, P.W. Hajrabi returned to her house along with deceased Halima's son Shaharukh as the appellant was reluctant to maintain him.

3. On 12.5.1998, P.W. Hajrabi learnt from her nephew Mahebub Shaikh Hanif that Halima died. P.W. Hajrabi, therefore, went to Hinganghat along with her relatives. On reaching there, she learnt that the dead body of deceased Halima was found on the railway track and it was buried after the last rites were performed. This happened before she reached there. On 12.5.1998, some persons, who saw the dead body of Halima on railway track, informed the railway gateman about the same. The railway gateman then informed his superior i.e., Station Superintendent, Hinganghat about it who, in turn, informed the P.S.O., Hinganghat about the same on wireless, on the basis of which an accidental death (Marg No.0/98) came to be registered at Police Station, Hinganghat. During an enquiry, the police had prepared the spot panchanama (Exhibit 32) as well as inquest panchanama (Exhibit 33) and sent the dead body of the deceased Halima to Cottage Hospital, Hinganghat, where post-mortem examination of her dead body was conducted by the Medical Officer, whose post-mortem report is at Exhibit 46.

4. Thereafter, on 2.8.1998, P.W. Hajrabi lodged her report (Exhibit 27) in the matter, on the basis of which an offence came to be registered as Crime No. 277/98, and the Police took up the investigation. In due course, the investigation was completed and both the accused came to be charge-sheeted for the aforesaid offences.

5. The learned trial Judge charged both the accused for the offences under Section 306 and 498-A read with Section 34 of the Indian Penal Code, to which they pleaded not guilty. The defence of the accused was one of total denial and false implication. In support of its case, the prosecution examined only one witness namely P.W. Hajrabi, the mother of the deceased Halima. The accused did not lead any evidence in defence nor did they examine themselves on oath. The learned trial Judge, upon consideration of the evidence on record, found that the prosecution had failed to prove the charge against original accused No. 2 Mariyam Begum and hence, the learned trial Judge acquitted her of both the offences. He, however, found the charge in respect of both the aforesaid offences established against the appellant and, therefore, proceeded to convict and sentence him as indicated above.

6. I have been taken through the oral evidence on record. I have also gone through the statement of the appellant recorded under Section 313 of the Criminal Procedure Code and heard Shri J.A. Anthony, the learned counsel for the appellant and Shri Doifode, the learned A.P.P. for the respondent/State at length.

7. While assailing the impugned judgment. Shri Anthony, the learned counsel for the appellant firstly contended that there was inordinate delay in lodging the F.I.R. According to him, the alleged incident took place on 11.5.1998 whereas the F.I.R. in the matter was lodged by P.W. Hajrabi, the mother of the deceased Halima on 2.8.1998 and since the said delay has not been properly and satisfactorily and unexplained delay casts a cloud of suspicion circumstance to be taken into consideration while judging the bonafides of the prosecution story as the delay may bring any coloured version and concoction. According to Shri Anthony, learned counsel for the appellant, such inordinate explained by the prosecution, it is a suspicious on the entire warp and woof of the prosecution story.

8. As against this, Shri Doifode, the learned A.P.P. submitted that though apparently it seems that there was delay in lodging the F.I.R., in fact there was no such delay. For this, he referred a case diary and pointed out from the same that report in the matter was in fact lodged by Shaikh Ramjan, the father of the deceased Halima on 13.5.1998 i.e. about two days after the incident in question took place. Not only that but the Police had recorded his statement on 17.5.1998, wherein he has stated in detail about the incident, but unfortunately the said Shaikh Ramjan could not be examined by the prosecution as he was not alive at the time when the matter was posted for recording of evidence of the prosecution witness. A perusal of the case diary does show that the deceased Shaikh Ramjan had lodged report in the matter on 13.5.1998, but unfortunately the same could not be proved since the said Shaikh Ramjan died before his evidence could be recorded by the trial court. Moreover, the objection regarding delay was neither raised by the defence counsel before the trial court nor any question was put to P.W. Hajrabi in this regard during her cross-examination. Had P.W. Hajrabi been asked about the delay, she could have explained it, but since she was not asked about the same, it cannot be said that the prosecution has failed to explain the delay in lodging F.I.R. properly or that it can become a ground to doubt the prosecution case. Under the aforesaid circumstances, in my opinion, the aforesaid delay in lodging the F.I.R. cannot be said to be fatal to the prosecution case. In view of this, I find no substance in the contention raised by the learned counsel for the appellant in this regard.

9. Nextly, it is contended by Shri Anthony, the learned counsel for the appellant that in the instant case, no independent witnesses, though available, were examined by the prosecution and, therefore, the evidence of P.W. Hajrabi, the mother of the deceased Halima, being highly interested witness, could not have been relied upon by the learned trial judge to base the conviction of the appellant under Section 498-A and 306 of the Indian Penal Code. According to Shri Anthony, even the evidence of P.W. Hajrabi is not sufficient to prove the cruelty as defined in Section 498-A of the Indian Penal Code and abetment of suicide as contemplated under Section 306 of the Indian Penal Code. For this, he placed reliance on the decisions in State of Maharashtra Vs. Ashok Narayan Dandalwar (2000 Cri. L.J. 4993) and Arvind Singh Vs. State of Bihar (2001 Cri. L.J. 2556).

10. As against this, Shri Doifode, the learned A.P.P. submitted that the evidence of P.W. Hajrabi clearly goes to show that there was persistent demand for money by the appellant, who, on non-fulfillment of the same, used to quarrel with the deceased Halima and harass her, about which, the deceased Halima told her before her death and this evidence, according to Shri Doifode, the learned A.P.P., is sufficient to prove the cruelty as well as abetment of suicide and, therefore, the learned trial judge has rightly convicted the appellant for the offences punishable under section 498-A and 306 of the Indian Penal Code. In support of his aforesaid submission, Shri Doifode, the learned A.P.P. referred a decision of the Apex Court in Pawankumar and others Vs. State of Haryana (A.I.R. 1998 Supreme Court 958).

11. In order to consider the rival contentions sought to be raised in this regard, it will be worthwhile to refer to the evidence of P.W. Hajrabi. P.W. Hajrabi has stated that the marriage of her deceased daughter Halima took place with the appellant in the month of August 1997. According to her, after the marriage of deceased Halima, her husband Shaikh Ramjan had been to the house of the appellant in order to fetch the deceased Halima back to her parental home, but the appellant refused to send her with him. According to her, thereafter, she herself went to the house of the appellant on two occasions to fetch the deceased Halima back to her house, but on both the occasions, the appellant refused to send the deceased Halima with her. It is further stated by her that at the second time, when she had been to the house of the appellant, the deceased Halima told her that her husband used to demand Rs. 500/- from her and on non- fulfillment of the same, he used to beat and ill-treat her. It is also stated by her that again at fourth time, when she had been to the house of the appellant to fetch the deceased Halima back to her house, the appellant and his father threatened her by saying that 'Mari Chhodenge, Jinda Nahi Chhodenge', meaning thereby that they would not leave her alive but kill her and, therefore, she returned to her house and after some days, she learnt about the death of the deceased Halima. The appellant has not disputed the aforesaid visits of P.W. Hajrabi and that of her husband to his house. What was suggested to this witness during her cross-examination on behalf of the appellant was that due to some domestic problems, such as, short of money or there being no other female member in the family of the appellant, the deceased Halima was not sent to her parental home. It was also suggested to this witness during her cross-examination that since the deceased Halima was mentally retarded or mentally weak, she committed suicide by jumping from the running train. However, besides the said suggestion, there is absolutely no material on record to show that the deceased Halima was mentally weak. Not only that but by putting this suggestion to P.W. Hajrabi during her cross-examination, the appellant has admitted the fact that deceased Halima had committed suicide. Now, the evidence of P.W. Hajrabi to the effect that at the time of her second visit to the house of the appellant, the deceased Halima told her that her husband used to demand Rs.500/- from her and on non-fulfillment of the same, he used to beat her, having not been dislodged during her cross-examination, in my view, it cannot be said that the evidence of P.W. Hajrabi is not sufficient to bring home the guilt to the accused, though no independent witness has been examined by the prosecution. The decisions (cited supra), and relied upon by the learned counsel for the appellant, in my opinion, therefore, are not applicable to the facts of the present case.

12. In State of Maharashtra Vs. Ashok Narayan Dandalwar (2000 Cri. L.J. 4993), there was absolutely no assertion in any of the letters produced by the prosecution, complaining against the husband either he was making any demand at any point of time, or assaulted or tortured the wife with cruelty and, therefore, in that matter, the Apex Court held that it was difficult to sustain the conviction of the accused by relying upon the oral testimony of the younger brother of the deceased as his evidence does not find corroboration from the letters produced by the prosecution on record.

13. In Arvind Singh Vs. State of Bihar (2001 Cri. L.J. 2556), there was no sufficient evidence for even the dowry demand, far less the evidence of cruelty. No outside person was called to give evidence and even the witnesses being in the category of interested witnesses, also restricted their version to the sufferings of the burn injuries and the purported dying declarations only. In view of this, the Apex Court observed that such evidence would not be sufficient to bring home the charge under Section 498-A against the accused persons.

14. In the case-in-hand, the evidence of P.W. Hajrabi, as discussed above, clearly indicates that at the second time, when she visited the house of the deceased Halima, the deceased Halima told her that her husband used to demand Rs. 500/-, and on that count, he used to beat and ill-treat her, which fact has not been dislodged by the appellant though she was cross-examined on his behalf at sufficient length. Simply by giving a suggestion during the cross-examination to the effect that the appellant was not illtreating or beating the deceased Halima, in my opinion, is not sufficient to dislodge her aforesaid version in this regard. Not only that, but her version that the appellant and his father gave threats to her to the effect that they would not leave the deceased Halima alive and would kill her has also not been dislodged during her cross-examination. This evidence, in my opinion, is sufficient to prove the cruelty as defined in Section 498-A of the Indian Penal Code and would also constitute the abetment for the commission of suicide. Similar view has been taken by the Apex Court in Pawankumar and others Vs. State of Haryana (A.I.R. 1998 Supreme Court 958), cited on behalf of the respondent/State.

15. Shri Doifode, the learned A.P.P. submitted that the fact that the deceased Halima committed suicide has not been disputed by the appellant since it was suggested to P.W. Hajrabi during her cross-examination that the deceased Halima was mentally weak and, therefore, she jumped out from the running train and committed suicide. According to him, the aforesaid fact clearly indicates that the death of the deceased Halima was not accidental but suicidal. It is further submitted by Shri Doifode, the learned A.P.P. that the marriage of the deceased Halima took place with the appellant on 24.8.97 and she committed suicide on 11.5.1998 i.e. within a period of seven years from the date of her marriage and the evidence of P.W. Hajrabi shows that the appellant had subjected the deceased Halima to cruelty and, therefore, under Section 113-A of the Evidence Act, it can very well be presumed that the suicide committed by the deceased Halima was abetted by the appellant. For this, Shri Doifode, learned A.P.P. placed reliance on the decision in Pawan Kumar Vs. State of Haryana (2001 Cri. L.J. 1679). However, according to Shri Anthony, learned counsel for the appellant, the presumption under Section 113-A of the Evidence Act is not mandatory. It is only permissive since the expression 'may presume' suggests so and, therefore, relying upon a decision in Pachipala Laxmaiah Vs. State of Andhra Pradesh (2001 Cri. L.J. 4063). He argued that since there is no positive evidence to indicate that the appellant had instigated the deceased Halima to commit suicide by doing any act, he cannot be held guilty of the offence for the abetment of suicide. Shri Anthony, learned counsel for the appellant was, however, unable to show the non-existence of the aforesaid circumstances pointed out by Shri Doifode, learned A.P.P. and, therefore, in my opinion, considering the evidence of P.W. Hajrabi that the deceased Halima was subjected to cruelty and that she committed suicide within seven years from the date of marriage, the presumption under Section 113-A of the Evidence Act i.e. it was the appellant who abetted the suicide committed by deceased Halima can be raised. I am fortified in this view by the decision of the Apex Court in (2001 Cri. L.J. 1679) (cited supra on behalf of the respondent/State). In the said matter, the Apex Court observed in para Nos.8, 9 and 11 as below :

"8. It is for reasons as above that learned Sessions Judge and the High Court refused to put any credence on the defence of accidental burn injury. If the accidental injury is ruled out and which we also feel the same way as that of the other two Courts, the obvious conclusion would be suicidal death and on that issue a further question arises as regards abetment. An analysis of the evidence of PW-3 Sudarshan Kumar (brother of the deceased) depicts the behavioural pattern received at the in-laws place by Ekta. Occasional demand for money and failure to meet the same, however resulted in beating up of the girl, Ekta, and as matter of fact in September 1985 she came back to the house of complainant all alone and this arrival, the complainant described as the aftermath of torture which in fact did put her up in a bad shape. Definite evidence is available on record that Ekta stayed with the complainant for about 8 months and it is only thereafter the appellant No. 2 wanted to take back Ekta. The brother of complainant PW-3 however, pointedly complainant though after some persuasion and assurance of the father-in-law, in the presence of some other members of the family, of proper treatment to the daughter-in-law, the complainant agreed and Ekta thus went back to the in-laws place. Further evidence however, records that there has been no improvement of the behavioural pattern and she was subjected to dowry torture as also various abusive treatment by reason of not being able to bear a child. Incidentally, the two families, namely the bride's and groom's, related to each other and it is on this score that learned Senior Advocate in support of the appeal contended that dowry torture or even user of any abusive language were all figments of imagination : The Evidence however tell a different story - the torture continued and reached its peak in July 1985 by reason of a booking of a Maruti Van by the complainant, the relationship was further estranged and PW-3 was given a warning as regards the events to follow and it is only thereafter this incident of burn injury took place. A number of relatives were also examined and their evidence corroborate this state of affairs as narrated by the complainant PW-3.

9. The learned Senior Advocate in support of the appeal further contended that the factum of the hospitalization of Ekta in any event negates any illtreatment or torture, but to be treated as a positive evidence of goodwill and affection. We are however unable to record our concurrence therewith having due regard to the evidence and other materials available on record. There is thus preponderance of evidence of dowry torture and it is on this count that Section 113-A of the Evidence Act ought to be taken note of. Section 113-A reads as below:-

"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 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 the 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 (45-1860)."

10. . . . . . . . . . . . . . . . . . .

11. On the wake of the aforesaid and by reason of the fact and the death of Ekta was caused by burn injuries only and having considered the nature of injuries and since one cannot but rule out an accidental death as discussed herein before, the death of Ekta cannot but be attributed to be suicidal on the basis of the circumstances as is available on record with the situation existing and having regard to statutory presumption, this Court cannot but lend concurrence to the opinion expressed by the High Court. The decisions of this Court as relied upon by Mr. Sushil Kumar (viz. Balwinder Singh V. State of Punjab, AIR 1996 SC 607 : 1995 AIR SCW 4555 : 1996 Cri. L.J. 883) ; Lakhjit Singh V. State of Punjab, 1994 Supp. (1) SCC 173 : (1993) AIR SCW 2938) ; State of Punjab V. Gurdip Singh (1996) 7 SCC 163; Sharad Birdhichand Sarda V. State of Maharashtra, (1984) 4 SCC 116 : (AIR 1984 SC 1622 : 1984 Cri.L.J. 1738) do not however, advance the matter any further since each case shall have to be dealt in the light of its own factual sphere and judicial precedents do not render any assistance whatsoever by reason of the peculiar factual matrix. In the facts of the matter under consideration, the circumstances pointedly point out the accused as a guilty person as abettors and on the wake of the aforesaid the order of conviction cannot be interfered with. The High Court has been lenient enough in dealing with the appellant Nos.2 and 3 by reducing the sentence, but since there is no cross appeal, we do not wish to record any contra view as regards the sentence as well."

In this view of the matter, in my opinion, the decision in Pachipala Laxmaiah Vs. State of Andhra Pradesh (2001 Cri. L.J. 4063), cited on behalf of the appellant is of no avail to him in establishing his innocence. The submissions made by Shri. Doifode, the learned A.P.P. in this regard, therefore, need to be accepted.

16. So, having considered the evidence of P.W. Hajrabi and taking into consideration the circumstances discussed above, I am of the considered view that the learned 1st Ad-hoc Additional Sessions Judge has rightly held the appellant guilty of the offence punishable under Section 498-A and 306 of the Indian Penal Code and sentenced him as stated above. I, therefore, find no justification for any interference with the impugned order. The appeal, therefore, fails and is dismissed.

Appeal dismissed.