Bombay High Court
Sanjay Vitthal Pachaghare vs State Of Mah.Thr.Pso.Tiosa on 10 March, 2015
Bench: A.B. Chaudhari, P.N. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 47 of 2002
Sanjay Vitthal Pachaghare,
aged about 27 years,
occupation - Service [Teacher],
resident of Mozari,
Tq. Tiosa,
Distt. Amravati. ..... Appellant.
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station, Tiosa,
Distt. Amravati ..... Respondent.
*****
Mr. P.R. Agrawal, Adv., for the Appellant.
Mrs. M.H. Deshmukh, Addl. Public Prosecutor for respondent-
State.
*****
CORAM : A.B. CHAUDHARI AND
P.N. DESHMUKH, JJ.
Reserved on : 22nd January, 2015.
Pronounced on : 05th February, 2015
& 10th March, 2015.
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J U D G M E N T [Per A.B. Chaudhari,J.]:
01. Being aggrieved by the judgment and order dated 7 th
January, 2002 passed by the learned Additional Sessions Judge,
Amravati, by which the appellant-accused no.1-Sanjay Vitthal
Pachaghare was convicted for the offence punishable under Section
302 of the Indian Penal Code and was sentenced to suffer Rigorous
Imprisonment for life and to pay a fine of Rs. 1000/-, in default of
payment of fine, to suffer further Rigorous Imprisonment for one
month, the present appeal was filed by the appellant-accused in this
Court.
FACTS:
02. Briefly stated, the case of the prosecution is that the
appellant-accused Sanjay married with Vandana, daughter of Kaniram
Sonar, on 24th June,1991. Vandana was serving as a Teacher at village
Benoda while the appellant was serving as a Teacher at Chandur
Railway. Due to her employment, Vandana was residing at Benoda
village in a rented house and the appellant-Sanjay used to visit Benoda
once in a week. After the marriage, Vandana visited her parents on two
occasions, at the time of Nagpanchami and Diwali and she had
complained to them that Sanjay was suspecting her character and
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used to raise quarrel with her and was assaulting her on that count.
On 12th January, 1992 at about 8.15 p.m., father of Vandana received a
message that his daughter died due to burn injuries at Mozri at the
house of appellant. He visited the house of the accused-appellant and
then lodged report with the Police Station complaining that Vandana
was ill-treated at the hands of the appellant and the appellant was
suspecting her character. Since the incident took place at Mozri, Shri
Rangrao Akhare gave information to the Police Station, Tiosa, about
the incident. Vandana's grand-mother-in-law [grand-mother of
accused] was residing with her at Benoda. The police then registered
offence punishable under Sections 498-A, 306, 302 read with Section
34 of the Indian Penal Code against the appellant and the other
accused persons. Thereafter, police filed the charge-sheet in the
Sessions Court. The trial was held. The Sessions Court had framed the
Charge against the appellant and other accused persons, who were
ultimately acquitted of the offences punishable under Sections 302,
304-B and 498-A read with Section 34 of the Indian Penal Code, but the
appellant was convicted. The trial Court did not frame the Charge for
the offence punishable under Section 306 of Indian Penal Code. The
trial Court acquitted all the accused persons i.e. the parents of the
appellant-Sanjay but convicted the appellant-Sanjay only for the
offence punishable under Section 302 of the Indian Penal Code,
however, he was acquitted for the charges under Sections 304-B and
498-A of the Indian Penal Code. Hence, this appeal.
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ARGUMENTS :
03. In support of the appeal, the learned counsel for the
appellant, vehemently argued that the learned Sessions Judge held the
appellant guilty of offence of murder when there is no direct evidence
in the case. On the contrary, according to the learned counsel for the
appellant, PW 3-Rangrao Akhare, who had lodged a report (Ex.43) to
the police Station was the first person to visit the spot of incident and
not only that he is an independent witness, who also stated that he
was the Special Judicial Magistrate and he was residing near the house
of accused. He stated that the door of the house was closed from inside
and it was latched from inside. It was Dhanraj, who climbed on the roof
of the house and then he removed tiles of the roof and poured water in
the house and thereafter opened the door from inside. He further
stated that at that time the appellant-Sanjay and his father Vitthal,
both were in the field and the distance between their house and the
field is about 2 kms. The counsel for the appellant, therefore, submitted
that there was remote possibility of presence of appellant in the house
at the time of the incident of burning and there is no reason
whatsoever for believing that the appellant committed murder by
burning the deceased Vandana. The prosecution evidence itself is very
clear that the appellant was in the field and his father was also in the
field at the time of the incident. The trial Court ought to have extended
the benefit of doubt to the appellant rather than convicting him for the
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serious offence of murder on mere surmises and conjectures.
04. The learned counsel for the appellant has submitted that the
appellant cannot be held guilty for any of the offences either of murder
or abetment to commit suicide under Section 306 of the Indian Penal
Code because the prosecution miserably failed to prove its case on all
counts. According to him, even the evidence regarding the ill-
treatment is untrustworthy and by way of omissions amounting to
contradictions thereby falsifying the prosecution case. He, therefore,
submits that the appellant-accused is required to be given benefit of
doubt and is required to be acquitted for the charge of murder under
Section 302 of the Indian Penal Code.
05. Opposing the conversion of charge for the offence
punishable Section 306 of the Indian Penal Code, he submitted that,
firstly no charge was framed against the appellant for the offence
punishable under Section 306 of the Indian Penal Code. Secondly, the
evidence tendered by the prosecution is not trustworthy and/or
clinching and, therefore, the appellant cannot be convicted even for
abetment of suicide. It is not the case of the prosecution that Vandana
had committed suicide. On the contrary, from the inception, the case
of the prosecution was that the appellant had committed her murder.
Finally, he prayed for order of acquittal by allowing the appeal filed by
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the appellant.
06. Per contra, the learned Additional Public Prosecutor for the
respondent-State opposed the appeal and submitted that there is
enough evidence on record to show that the appellant was guilty of the
offence of murder. According to the learned A.P.P., it was for the
appellant to explain under Section 106 of the Indian Evidence Act, 1872
since he was custodian of his wife and therefore, he must explain how
Vandana was burnt. In the absence of any explanation by the
appellant and he being the occupant of the house, the trial Court was
right in convicting the appellant for the offence of murder. In the
alternative, the learned A.P.P. submitted that the appellant can be held
guilty for the lesser offence i.e. abetment of suicide. There is
voluminous evidence on record to show that because of his repeated
harassment, assault and instigation, Vandana committed suicide. She,
therefore, submits that the appellant is guilty of the offence punishable
under Section 302 or 306 of the Indian Penal Code and he be convicted
accordingly.
CONSIDERATION :
07. We have perused the entire record, evidence of the
prosecution witnesses, oral as well as documentary. We have heard the
learned counsel for the rival parties at length. We have perused the
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impugned judgment and order of conviction under Section 302 of the
Indian Penal Code and the reasons recorded by the trial Court.
08. At the outset, this is a case where there is no direct
evidence that the appellant had by any overt-act committed murder
punishable under Section 302 of the Indian Penal Code. The only
evidence relied upon by the prosecution is that Vandana was burnt in
the house owned and occupied by the appellant and his father. The
Trial Court heavily relied upon Section 106 of Evidence Act for holding
the appellant guilty of the offence of murder. The trial Court acquitted
all other accused from all the charges framed against them. The trial
Court convicted the appellant for the offence of murder by recording
the following reasons in paragraph nos. 22 and 23:-
"22. With this discussion, now I shall come to the
other evidence and circumstances on record
which corroborate the prosecution story of
homicidal death. First, I shall come to the spot
panchanama. It has come in spot panchanama
(Ex. 37) that it is the house of Vitthal Mahadeo
Pachghare i.e. the father of the accused no.1
from Mozari. There are two doors to the room
towards the northern side where deceased
Vandana was lying in dead condition due to burns
near the western door of said room. At the
northern side, there were some articles and
pillow which were found in burnt condition. At the
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distance of 4 ft. towards the west of dead body
there was plastic can of kerosene in which 100
ml. kerosene was found and it was without cork.
The matchbox was kept on shrine(Deoghar) in
safe condition. Here, it will not be out of place to
mention that the panchanama is silent to speak
that tiles of the roof were removed as narrated
by PW-3 Akhare in his cross examination. This
panchanama again falsify the statement of
Akhare. So far as the inquest panchanama is
concerned it is at Ex.24 which speak that the
dead body was lying. Both the hands of deceased
were folded from the elbow towards her head,
her both legs were in folded conditions at knee
joint, eyes were partially open. This position of
the dead body also rules out the circumstances of
suicidal death and these are the circumstances
which leads us to draw the inference as to
homicidal death.
23. Again, I shall come to the postmortem
report (Ex.29) wherein it has been mentioned in
Clause 13 o the report that features were
swollen, eyes were closed, mouth was open,
tongue was protruded between teeth and red
was oozing from both nostril. While para 20 of the
post mortem notes states the position of thorax
walls, ribs, cartileges, right and left lungs were
congested upto 1/3rd section. It has also come in
the post mortem notes that larynx, trachea and
bronchie were congested. It is further mentioned
that there were soot particles with congested
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position. It is true that soot particles can be found
if a person is burn if alive and sometimes if the
mouth remain open. Here, it is not the case to
decide as to whether the burn injuries ante-
mortem or post-mortem. Apart from this, ongoing
through the postmortem notes it reveals that the
deceased died due to extensive burn injuries. At
that time, she was carrying 26 weeks pregnancy.
This circumstance also goes to show that the
woman who is carrying such advanced stage
pregnancy will not commit suicide so easily. From
postmortem notes it has been established that
she died due to extensive burns. Therefore, in the
present case, I have no hesitation to hold that the
deceased died of homicidal death."
09. Looking to the above reasons recorded by the trial Judge
holding that the appellant was responsible for committing murder of
Vandana, we find that the reasons are too weak to hold the appellant
guilty of the offence of murder in the absence of any direct evidence.
We therefore, do not agree with the trial Judge that there is any
evidence on record to the satisfaction of the Court that the appellant
could be held guilty of serious offence of murder under Section 302 of
the Indian Penal Code.
10. PW 3 - Rangarao Akhare, the witness, who had seen the
incident has stated in the evidence that when he went to the house the
door was closed and it was latched from inside and hence Dhanraj
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climbed on the roof and removed the tiles of the roof and then he
poured water in the house. His evidence also shows that at the time of
incident, Sanjay and his father Vitthal were in the field and the distance
between their house and the field is 2 kms. After the cross-
examination made by accused, the Public Prosecutor did not bother to
cross-examine this witness who deposed favouring the accused. The
probability of the appellant and his father at the time of incident being
in the field, therefore, cannot be ruled out by reading his evidence who
was not declared hostile. The benefit of doubt must go to the accused.
We, therefore, reverse the finding recorded by the trial Judge
convicting the appellant for the offence of murder under Section 302 of
the Indian Penal Code.
11. The next question is about the Charge under Section 498-A
of the Indian Penal Code. The trial Judge has acquitted the appellant
for the said offence and the State has not preferred appeal against the
said acquittal of the appellant for the offence punishable under Section
498-A of the Indian Penal Code. We are satisfied that the conviction
ought to have been recorded under Section 498-A of the Indian Penal
Code. There is ample evidence to do so. But, in the absence of appeal,
we can do nothing.
12. The next question is whether the appellant could be
convicted for the offence punishable under Section 306 of the Indian
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Penal Code. We have considered the submissions made by the learned
counsel for the appellant and the learned A.P.P. for the State. Insofar
as the aspect of conversion of charge to a lower offence is concerned,
the question is no more res integra, in view of the judgment given by
the three-Judge Bench in the case of Dalbir Singh Vs. State of U.P.
reported in (2004)5 SCC 334. The Hon'ble Apex Court in the said
decision has observed in paragraph 17 thus:
"17. There are a catena of decisions of this
Court on the same lines and it is not necessary
to burden this judgment by making reference
to each one of them. Therefore, in view of
Section 464 CrPC, it is possible for the
appellate or revisional court to convict an
accused for an offence for which no charge
was framed unless the court is of the opinion
that a failure of justice would in fact occasion.
In order to judge whether a failure of justice
has been occasioned, it will be relevant to
examine whether the accused was aware of
the basic ingredients of the offence for which
he is being convicted and whether the main
facts sought to be established against him
were explained to him clearly and whether he
got a fair chance to defend himself. We are,
therefore, of the opinion that Sangaraboina
Sreenu was not correctly decided as it
purports to lay down as a principle of law that
where the accused is charged under Section
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302 IPC, he cannot be convicted for the
offence under Section 306 IPC."
13. Following the above dicta and the observations about
verification of the accused having a fair chance to defend himself for
the proposed converted charge, we have examined the entire record
including the evidence as well as questions put by the trial Court to the
accused under Section 313 of the Code of Criminal Procedure. Upon
perusal thereof, we are satisfied that there are specific questions in
relation to the ill-treatment, harassment, instigation and abetment of
suicide put to the appellant-accused-Sanjay, which he answered. There
is voluminous evidence to draw the inference that she committed
suicide due to constant trepidation from appellant. The inference that,
the appellant Sanjay was fully responsible for the commission of
suicide by Vandana can very well be drawn since the evidence is very
very weighty for holding him guilty accordingly. The appellant has
answered all the questions in relation thereto in his statement under
Section 313, Criminal Procedure Code.
14. We reproduce some questions and answers hereunder:-
"Q.No.6 : It has further come in his evidence that
Madhukar Chichote had come to him and
told that his son-in-law took out all the
clothes and went on road to commit suicide
so he should come along with him and so he
went to Mozari along with him. At that time
it was 10 p.m. What have you to say about
it?
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Ans It is false."
"Q.No.12: It has further come in his evidence that
Vandana told him that she being a teacher
she has to talk with others. What have you
to say about it?
Ans : It is correct."
"Q.No.16: It has come in the evidence of PW 4 Kantabai
Gohad that Vandana was her tenant, she
was a teacher, her grand-mother-in-law was
residing with her, and her husband used to
visit the house of Vandana. What have you
ig to say about it?
Ans : It is correct."
"Q.No.18: It has further come in her evidence that
Vandana was her tenant and at that time
Vandana was carrying pregnancy of about 5
to 6 months. What have you to say about it?
Ans : It is correct."
"Q.No.35: Do you want to examine yourself on oath?
Ans : No."
"Q.No.36: Do you want to examine defence witnesses?
Ans : No."
.
"Q.No.39: Do you want to say anything more about this
case?
Ans : Vandana was teacher at Benoda & I was
working as teacher at Chandur Railway. On
holidays I used to visit Benoda. The landlady
told me that Vandana used to talk with
males & males used to remain in house till
late hours. Thereupon I told my wife that it is
not proper to behave in such a manner.
Therefore, she was behaving properly. She
came to Mozari by taking leave, but she
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started behaving as earlier, therefore I called
her father & told him about the situation.
There was altercation between her and her
father. He gave slap to her and her cheek &
asked her not to behave in a such manner.
She agreed to behave properly. Thereafter
her father told me that he would take
Vandana with him, I agreed for the same. He
also invited me. I told him that I have not
taken leave. I will come lateron. He called
us by taking leave. I do not know what
conversation took place between her & her
father subsequently."
15.
From perusal of defence and the questions and answers in
reply, it is clear that though the appellant claimed that he was in the
field with his father, he has not said a word as to how Vandana died of
burning. That apart, the fact that the door of the house was closed,
latched from inside and Vandana was burning inside the house shows
that she committed suicide by neatly latching the door from inside as
she was determined to commit suicide. The reason given by the trial
Judge that as she was pregnant of five months, she was not even
thinking of committing suicide, does not appeal to us, as no such
straight-jacket formula can be suggested. In the instant case, the
evidence of the witnesses is abundantly clear about the repeated ill-
treatment given by the appellant and his vitriolic attitude towards
Vandana for flimsy reasons, she used to talk to the students or other
persons. He used to assault and torture her every now and then. Even
when she was pregnant from him on 7.12.1991 he seriously assaulted
her and she suffered head injuries which she had shown to the
witnesses. The appellant was thus so cruel on his own flimsy ideas and
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suspicion about her within a short period of two to three months of the
marriage when he had knowingly married a teacher girl. He did not
even bother about her five months' pregnancy from him. The appellant-
Sanjay exhibited grotesque behaviour towards her in her early married
life, who was brought up, educated by her father and somehow got
employment for her as a Teacher with great difficulties. But the
appellant, in his own whims and fancies, figment of imagination,
started suspecting the girl, his wife, because she used to talk with the
students, other teachers. The appellant refused to understand that she
being a Teacher was bound to talk to the boys or other teachers, as it
was a part of her profession. In fact, she told him so. The appellant
deliberately forgot and ignored that his own grand-mother was
residing with her in order to have security for her. Not only that, the old
landlady and her daughter were also acting like her guardian. The old
landlady was treating her like daughter. However, the appellant did not
simply understand the aspirations of a woman, i.e. his wife Vandana,
who became a teacher with great dreams of marriage and the married
life. The story is thus tragic that the appellant tortured her so much
that she was compelled to commit suicide. We record the following
portion from the evidence of various witnesses in this connection to
support what we have stated above:
"PW 4 Kantabai Gohad: I know the deceased
Vandana, she was the teacher, she was
residing in my room as a tenant. One old
woman was residing with her. She was a
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grand mother in law. The husband of her used
to visit the house of Vandana. I know the
woman and the husband of deceased Vandana.
The witness was asked to go to the accused
persons and identify if any one of them is her
husband and the grand mother of the
deceased. She went to the accused but she
could not recognize any of them. The husband
of the deceased Vandana used to beat her on
suspicion. I had given advise to the husband of
deceased that if he did not want his wife in his
house he should give divorce to her, else he
should keep her properly instead of giving ill-
treatment to her. I do not remember if some
Kale had giving understanding to the husband
of Vandana. When she was residing in my room
as tenant she was pregnant of about 5
months."
"PW 5 Mahadeo Bhele : I know deceased
Vandana, she was a teacher in the same school
where I was also serving as teacher. After the
marriage there had been a restriction on her to
go to the house of any other person and she
was telling this fact to us. Before about 7-8
days of the incident she had met me, in the
school. At that time she had shown the
welling/sign of beatings on her neck and she
told me that - that was beating given by
accused Sanjay, and then she went to the
house."
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"PW 6 Manikrao Kale : I know deceased
Vandana. She was sister in law i.e. the (cousin)
sister of my wife. I also know her husband and
parents in law. They are before the Court. I
only know Sanjay Pachghare the accused and
his father Vitthalrao Pachghare. Deceased
Vandana was a teacher in the school. At the
relevant time I was Extension Officer in a
Panchayat Samiti Warud. Before the incident
i.e. on 7.12.1991 I had met her, because I had
gone to her school. At that time when I was
sitting in the office of head master of the
school she had complained me and told that
her husband used to beat her on suspicion on
her character. On the same day her husband
Sanjay was also in the same village so I met
him and gave a understanding to him, that he
should not behave like that. On 7.12.1991 she
had shown oal (line of swelling on her neck)
and told that it was due to the beat of accused
to her."
"PW 7 Sau. Kamal Pande : Deceased
Vandana Pachghare was residing in the house
of my mother as tenant. I was residing with
my mother. The grand mother Indla was
residing with deceased Vandana and that her
husband used to visit some times at her house.
There used to be always quarrel between the
deceased Vandana and her husband. Her
husband also used to beat her in the night and
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that we heard the noice of her weeping. Her
husband used to raise the voice of radio and
used to beat her. However, I do not know as to
why quarrel used to arise between them.
Before her death she was pregnant of about
five months. Her husband used to raise the
doubt about her chastity whenever she used to
go out. The grand mother of her who was
residing with her had told me that deceased
Vandana was good in nature but her husband
unnecessary giving trouble to her".
16. The above evidence that he used to raise the voice of radio
to suppress her cry while assaulting her is the tale-telling story of
Vandana. She was then also assaulted on 7th December, 1991 by the
appellant-Sanjay and caused injuries to her which she had shown to
the witnesses and thereafter on 12.1.1992 the incident took place and
she committed suicide at Mozri at the house of the appellant.
17. We have no doubt that the appellant-Sanjay had tormented
Vandana knowing that she was five months' pregnant from him.
Unable to bear the barbaric torture though pregnant, she took a
decision to commit suicide. In our opinion, the above evidence is
strong enough to convict the appellant for the offence punishable
under Section 306 of the Indian Penal Code. As earlier said, we have
perused the entire evidence on record as to whether the appellant was
given a fair trial under Section 306 of the Indian Penal Code. We are
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satisfied that the appellant received a fair trial and all the relevant
questions appearing in the evidence of witnesses which we have
discussed were asked to him and he answered the same.
18. That is how is the 'tragic' story of 'VANDANA', a village
daughter of India who had four sisters in addition. What difficulties a
father of five girls living in a village must have faced for educating
Vandana and then getting her employment. Still she got educated and
became qualified to become a Zilla Parishad Primary Teacher to serve
in a village. She was earning Rs. 2500/- per month. She was a girl of
only twenty-four years with an ambition to have a husband like her, a
teacher, and married the appellant, knowing nothing about his
suspicious nature, vitriolic attitude. She had a dream and aspirations
of a happy married life. She became pregnant from appellant. But she
had no other option than to commit suicide with her still-born just
within six months of her marriage due to the torture by the surly
accused. Her heart must have shed a secret tear and grief welled up
inside to constrict the throat before committing suicide with still-born.
We find that the cases of suspicion about character of a
newly married wife at a very early stage, as within six months in this
case, are on the rise which result into commission of such grave
offences. We think the society must attend to this typical menace and
make efforts to curb unnecessary and unwarranted and surly behaviour
of the husband.
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It is most unfortunate that the appellant failed to perform his
duties and obligations to protect and take care of his wife as per the
marriage vows. Laws are not enough to combat this evil. A wider
social movement of educating women of their rights is needed,
particularly in rural areas. We would quote below paras 55, 56 and 57
from the Judgment of Supreme Court in the case of State (Delhi
Administration) Vs. Laxman Kumar & others [(1985) 4 SCC 476],
which are apt:-
"55. Marriage, according to the community to
which parties belong, is sacramental and is believed to
have been ordained in heaven. The religious rites
performed at the marriage altar clearly indicate that the
man accepts the woman as his better-half by assuring her
protection as guardian, ensuring food and necessaries of
life as the provider, guaranteeing companionship as the
mate and by resolving that the pleasures and sorrows in
the pursuit of life shall be shared with her and Dharma
shall be observed. ...."
"56. Every marriage ordinarily involves a
transplant. A girl born and brought up in her natural family
when given in marriage, has to leave the natural setting
and come into a new family. When a tender plant is
shifted from the place of origin to a new setting, great
care is taken to ensure that the new soil is suitable and
not far different from the soil where the plant had hitherto
been growing; care is taken to ensure that there is not
much of variation of the temperature, watering facility is
assured and congeniality is attempted to be provided.
When a girl is transplanted from her natural setting into an
alien family, the care expected is bound to be more than
in the case of a plant. Plant has life but the girl has a more
than developed one. Human emotions are unknown to the
plant life. In the growing years in the natural setting the
girl - now a bride - has formed her own habits, gathered
her own impressions, developed her own aptitudes and
got used to a way of life. In the new setting some of these
have to be accepted and some she has to surrender. This
process of adaptation is not and cannot be one-sided. Give
and take, live and let live, are the ways of life and when
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the bride is received in the new family she must have a
feeling of welcome and by the fond bonds of love and
affection, grace and generosity, attachment and
consideration that she may receive in the family of the
husband, she will get into a new mould; the mould which
would last for her life. She has to get used to a new set of
relationships - one type with the husband, another with
the parents-in-law, a different one with the other superiors
and yet a different one with the younger ones in the
family. For this she would require loving guidance. The
elders in the family, including the mother-in- law, are
expected to show her the way. The husband has to stand
as a mountain of support ready to protect her and espouse
her cause where she is on the right and equally ready to
cover her either by pulling her up to protecting her
willingly taking the responsibility on to himself when she is
at fault. The process has to be a natural one and there has
to be exhibition of cooperation and willingness from every
side. Otherwise how would the transplant succeed!"
"57. There is yet another aspect which we think is
very germane, Of late there is a keen competition
between man and woman all the world over. There has
been a feeling that the world has been a man-dominated
one and women as a class have been trying to raise their
heads by claiming equality. We are of the view that
women must rise and on account of certain virtues which
Nature has endowed them with to the exclusion of man,
due credit must be given to women as possessors of those
exclusive qualities. It is the woman who is capable of
playing the more effective role in the preservation of
society and, therefore, she has to be respected. She has
the greater dose of divinity in her and by her gifted
qualities she can protect the society against evil. To that
extent women have special qualities to serve society in
due discharge of the social responsibility. While all these
are true and the struggle for upliftment has to continue,
can it be forgotten that men and women in the human
creation are complementary to each other and it is only
when a man and a woman are put together that a unit is
formed? One without the other has no place in the
community of homo sapiens. Therefore, in a world where
man and woman are indispensable to each other and the
status of one depends upon the existence and longing of
the other, to what extent is competition between the two
justifiable is a matter to be debated in a cool and healthy
setting."
19. The appellant-accused was heard on the point of sentence
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on the previous date. His counsel submitted that the appellant, who
was working as a Teacher, lost his employment because of the
conviction for murder and he further submitted that the father of the
appellant is a very old man and it is the appellant who has to take his
care. He then submitted that the incident is of the year 1992 and
looking to the time gap, lenient view in the matter of awarding
sentence should be taken by this Court.
20.
We have carefully considered the submissions made by
learned counsel for the appellant. In the first place, it is a well settled
legal position that mere delay in the trial or decision of appeal is no
consideration in the matter of award of sentence all the more because
the appellant was convicted for the offence of murder and sentenced
to life imprisonment; but he obtained bail from this Court when he filed
appeal in 2002 and, thus, was throughout on bail. We, therefore, do
not agree with the learned counsel for the appellant that the number of
years that have passed can be a consideration. We then find that the
father of the appellant ought to have taken care by putting the
appellant Sanjay on the right track and should have prevented him
from torturing Vandana within a short span from the date of marriage
on frivolous reasons. He failed in his duty to do so and, therefore, we
are not impressed with the said submission. The loss of employment of
the appellant is his own creation for which none can be held
responsible.
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We now find that Vandana died within six months of
marriage carrying pregnancy of five months from the appellant along
with still-born child by committing suicide due to grotesque behaviour
of the appellant. The surly appellant and his suspicion about her
character was wholly baseless and, in fact, his grand-mother was
residing with Vandana, which was somewhat the guarantee about the
watch on Vandana or her freedom. While he was assaulting her, he
used to raise the volume of radio to suppress her cry. To say the least,
it was barbaric. Under such circumstances, we think the appellant
must be handed down the maximum punishment. Section 306 of Indian
Penal Code provides for a sentence upto ten years. We have decided
to sentence him to undergo Rigorous Imprisonment for ten years and
without any facility of remission, as it is expedient to have deterrence.
That being so, we make the following order:-
ORDER
[i] Criminal Appeal No. 47 of 2002 is partly allowed.
[ii] The Judgment and Order dated 7th January, 2002 passed by Additional Sessions Judge, Amravati, in Sessions Trial No. 186 of 1997, convicting the appellant for the offence under Section 302 of Indian Penal Code is set aside and is modified and the appellant is, instead, held guilty of offence ::: Downloaded on - 10/03/2015 23:59:03 ::: 24 punishable under Section 306 of Indian Penal Code.
[iii] The appellant is sentenced to undergo Rigorous Imprisonment for ten years with no facility of remission, and shall also pay fine of Rs.10,000-00 [rupees ten thousand only] payable to the father of Vandana, in default, to undergo further sentence for six months.
[iv] The appellant-accused shall be entitled to set off for the period of imprisonment already undergone by him as per Section 428 of Criminal Procedure Code.
Judge Judge
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