2009 ALL MR (Cri) 708
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.M. KANADE, J.
Shashidharan Munnuswami Mudliyar Vs. State Of Maharashtra
Criminal Appeal No.596 of 2007
15th December, 2008
Petitioner Counsel: Mrs. SHARMILA KAUSHIK
Respondent Counsel: Mr. D. P. ADSULE
Penal Code (1860), Ss.306, 498A - Conviction and Sentence under - Sentences awarded for offences punishable under Ss.498-A and 306 of I.P.C. to run separately, held, not justified - Sentence of 10 years awarded by Trial Court for offence punishable under S.306, I.P.C. excessive in the facts and circumstances of the case - Accused already undergone almost nine and half years of sentence - His sentence of 10 years, therefore, reduced to 5 years and further directed that both the sentences, one under S.306 and other under S.498-A should run concurrently. (Para 7)
2. Appellant is challenging the judgment and order passed by the Additional Sessions Judge whereby he was pleased to convict the appellant for the offence punishable under section 498(A)(a) of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three years and to pay fine of Rs.3,000/- and, in default, to suffer further rigorous imprisonment for six months. He also convicted him for the offence punishable under section 306 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for 10 years and to pay fine of Rs 5,000/- and, in default, to further suffer rigorous imprisonment for two years. Trial Court directed that both these sentences shall run separately for the separate offence committed by the appellant.
3. Prosecution case, in brief, is that the appellant and the deceased got married and there were two children born out of the said marriage. Prosecution case is that, as a result of physical and mental harassment and cruelty by the appellant, his wife Vijayalaxmi poured kerosene on herself and committed suicide. Prosecution case is that the appellant did not permit the neighbours or any other person to extinguish fire and, therefore, abetted the said offence of suicide. Prosecution filed charge-sheet. Accused pleaded not guilty to the said offence.
4. Prosecution examined in all 7 witnesses. P.W.1 - Dr. Vikas Tukaram Pawnakar who performed post-mortem. P.W.2 - Sampatkumar Vinay Mudliar, brother of the deceased Vijayalaxmi, P.W.3 - Malan Raju Pansare who is neighbour of the appellant, P.W.4 - Hemant Ganpatrao Sabnis, another neighbour of the appellant, P.W.5 - Pushpawati Vinayak Mudliar, mother of the deceased Vijayalaxmi, P.W. 6 - Sunil Shashidharan Mudliar, son of the deceased Vijayalaxmi and P.W.7 - P.S.I. Ravindra Gajanan Mhatre, who was the investigation officer.
5. P.W.1 - Dr. Vikas has stated in his evidence that the deceased had received 95% burn injuries and the cause of death was due to terminal cardio respiratory failure due to hypovolumic shock due to deep burns 95%. P.W.2 - Sampatkumar, brother of the deceased has stated that the accused used to return home after consuming liquor and that he had borrowed Rs.3,000/- from him and Rs.1,000/- from his younger sister and that he did not pay fees of the children. However, in his cross-examination, he has admitted that he has no personal knowledge about non-payment of fees of the children of the deceased. He also admitted that he did not keep any account about payment of Rs.3,000/- to the appellant. P.W.3 - Malan who is neighbour of the appellant has stated that there were disputes between the appellant and the deceased and that the appellant did not give her money for making payment of school fees of her children. She has further stated that the accused used to beat his children on study. She has stated that on the date of the incident she heard cries of the son of the appellant and she and her father went out of the house. At that time, accused-appellant came there. He, however, did not allow anybody to enter the house. P.W.4 - Hemant who is also a neighbour of the appellant has stated that at about 11.30 to 12.00 hours, he heard cries of children and he came out of the house and that the appellant did not permit him and others to enter the house. In his cross-examination, however, he has admitted that this fact that the appellant did not allow him to extinguish the fire was not stated by him to police. P.W.5 - Pushpawati, who is the mother of the deceased, has stated that the accused used to consume liquor and was in a habit of gambling and, before the death of her daughter, she heard that he was having extra-martial relations. P.W.6 - Sunil, son of the deceased, has stated that his father used to consume liquor every day and he used to abuse and beat his mother and that he did not pay money for household expenses. On the date of the incident, when he woke up, he saw his mother was burning inside the house and his father was sprinkling water saying Gangajal and Hari Oam, Hari Oam and when he asked his father to save his mother, his father pushed him out. He has also stated that his father did not allow anybody to enter the house to extinguish the fire.
6. From the evidence of P.W.6, P.W.4 and P.W.3, it is evident that the appellant did not take any step to extinguish fire after his wife had set herself ablaze. He also did not permit his neighbours or any other person to enter the house to extinguish fire. Appellant's son Sunil - P.W.6 and his mother-in-law have stated that he used to harass the deceased and he used to consume liquor daily and, thereafter, used to beat and abuse the deceased Vijayalaxmi. In view of this evidence, therefore, prosecution has clearly established that the appellant had harassed her physically and mentally and, as a result, she was compelled to take extreme step of committing suicide. Appellant did not extinguish fire and did not permit others to intervene and extinguish fire.
7. Trial Court was, therefore, justified in convicting the accused for the offence punishable under sections 498-A and 306 of the Indian Penal Code. Trial Court, however, in my view, was not justified in directing that sentences awarded for the offence punishable under sections 498-A and 306 of the Indian Penal Code to run separately. Even in my view, sentence of 10 years awarded by Trial Court for the offence punishable under section 306 of the Indian Penal Code is excessive. Admittedly, the appellant has already undergone almost nine and half years of sentence and he is in jail since 1999. His sentence, therefore, of 10 years is reduced to 5 years and further it is directed that both the sentences; one under section 306 and the other under section 498-A should run concurrently.
O R D E R
In the result, conviction awarded by the Trial Court is confirmed. However, sentence is reduced from 10 years to 5 years so far as offence under section 306 of the Indian Penal Code is concerned. Sentence of three years awarded for the offence punishable under section 498(A)(a) of the Indian Penal Code is, however, confirmed. Both the sentences are directed to run concurrently. The judgment and order passed by the Trial Court to that extent is set aside. Appellant has already undergone nine and half years of sentence. Appellant be released forthwith, unless he is required in any other case. Appeal is partly allowed.