Bombay High Court
Sudhakar Shridhar Vispute vs The State Of Maharashtra on 15 October, 2009
Author: V.R.Kingaonkar
Bench: V.R.Kingaonkar
1
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.344 OF 1997.
Sudhakar Shridhar Vispute,
Age 46 years, Occ.Agriculture,
R/o Ringangaon,Tq. Erandol,
District Jalgaon. ... Appellant.
Versus
The State of Maharashtra ... Respondent.
...
Mr.Sanket Kulkarni, advocate holding for
Mr.V.T.Choudhari, advocate for the appellant.
Mr.N.R.Shaikh, A.P.P. for the State.
...
CORAM : V.R.KINGAONKAR,J.
Reserved on :07.10.2009.
Pronounced on:15.10.2009.
JUDGMENT
1. Challenge in this appeal is to judgment rendered by learned 2nd Additional Sessions Judge, Jalgaon, in Sessions Case No.15/1994, ::: Downloaded on - 09/06/2013 15:13:49 ::: 2 whereby and whereunder above named appellant has been convicted for offences punishable U/ss 306, 498-A of the I.P.Code and is sentenced to suffer rigorous imprisonment for five (5) years and fine of Rs.2,000/- (Rupees two thousand), in default rigorous imprisonment for three (3) months, on first count and rigorous imprisonment for three (3) years and fine of Rs.1,000/- (Rupees one thousand), in default rigorous imprisonemnt for one (1) month, on the second count.
2. Somewhere in the year 1969, first marriage of the appellant was performed with Dagubai, who was the elder sister of deceased Meera. Out of that first marriage one son was born to Dagubai. He is DW 1 Prabhakar. Said Dagubai died due to illness after about ten (10) years of the marriage. The appellant performed second marriage. His relations with the second wife were strained. The spouses fell out. The second marriage was short lived affair which ended in divorce. His son Prabhakar was then aged about 8/9 years old. The appellant entered into his third wedlock with younger sister of ::: Downloaded on - 09/06/2013 15:13:49 ::: 3 Dagubai i.e. deceased Meera. It appears that Meera was given in marriage to the appellant with a view to take care of DW Prabhakar so as to ensure his proper bringing up under care of the maternal aunt-cum-mother. The marriage between Meera and the appellant was performed somewhere in the year 1981-82. Initially Meera resided with the appellant and his mother at village Gaurkheda for some years.
ig She gave birth to a female child by name Mangala.
3. The prosecution case, stated briefly, is that deceased Meera was being given cruel treatment by the appellant. He and his mother used to suspect her fidelity and used to beat her. She complained about the matrimonial cruelty to her brother and others as and when she used to visit the paternal house on occasions of festivals like "Akhaji" and "Diwali". The parental home of Meera is at village Ringangaon.
The appellant and his mother migrated to village Ringangaon in or about 1985. They started residing in a house situated in locality near the locality where her brother and other members of ::: Downloaded on - 09/06/2013 15:13:49 ::: 4 the parental family are residing. The appellant was suspecting her character and continued to beat her from time to time. He disallowed her since 1991 to visit house of her brother i.e. PW Bhikari. However, in the year 1993, she visited his house on occasion of "Bhaubhij" festival in the evening time. She returned the maternal home after a short while. The appellant had beaten her because she had visited house of her brother though he had instructed not to go there. On the next day, i.e. 18.11.1993, Meera visited the agricultural land. The appellant picked up quarrel with her for trivial reason and started beating her. She could not bear the torture any more. She ran towards a nearby well and jumped therein. She died due to drowning in that well.
Her brother i.e. PW 1 Bhikari lodged FIR (Exh.13) at Erandol Police Station. Before lodging of the FIR, the village Police Patil had already given report about the death of Meera due to the drowning. Therefore, the Police visited the agricultural land of Chindu Kisan Doke, wherein the well is situated. The dead body of Meera was retrieved from the well. An inquest panchanama ::: Downloaded on - 09/06/2013 15:13:49 ::: 5 (Exh.16) was drawn. A spot panchanama (Exh.17) was also prepared during course of the inquiry.
The dead body was sent for post-mortem examination. The Medical Officer issued advance certificate (Exh.18) regarding probable cause of her death. In the opinion of the Medical Officer, she died as a result of asphyxia due to drowning.
4. On the basis of the report submitted by PW Bhikari, offence was registered vide Crime No. 88/1993. The Investigating Officer recorded statements of maternal relatives and other witnesses. On the basis of material gathered during course of the investigation, the appellant and his mother were charge-sheeted for the offences punishable U/ss 498-A and 306 read with Section 34 of the I.P.Code.
5. The appellant denied truth into the accusations. His defence was of simple denial.
He suggested that Meera died accidental death as her leg had slipped while drawing water of the well in the relevant noon. He asserted that ::: Downloaded on - 09/06/2013 15:13:49 ::: 6 false case was prepared against him..
6. At the trial, the prosecution examined in all nine (9) witnesses. The prosecution also produced some documents on the record. The appellant examined DW 1 Prabhakar, his son from the first marriage, as a defence witness. The learned Additional Sessions Judge, came to the conclusion that the appellant subjected deceased Meera to matrimonial cruelty. The learned Additional Sessions Judge, further held that cruelty was of such nature as was likely to drive her to commit the suicide and she in fact, committed the suicide by plunging herself in the well in the relevant noon because of the unbearable physical and mental cruelty. The learned Sessions Judge, however, held that mother of the appellant i.e. original accused No.2 Yamunabai did not share common intention with the appellant nor had subjected the deceased to matrimonial cruelty. She was, therefore, acquitted from the charges. The learned Additional Sessions Judge, held that by his willful conduct and intentional matrimonial ::: Downloaded on - 09/06/2013 15:13:49 ::: 7 cruelty, the appellant aided or enticed commission of the suicide by deceased Meera. In keeping with such findings, he came to be convicted and sentenced as described hereinabove.
7. Heard learned counsel and learned A.P.P.
8. The ig following points need determination:
"(i) Whether it is proved that
deceased Meera was subjected to
matrimonial cruelty to her by the
appellant by and it was of such a
nature to drive her to commit suicide or to cause injury to her limb or person.?
(ii) Whether it is proved that Meera committed suicide in the noon of 18.11.1993, by plunging herself in the agricultural land of one Chindu Kisan Doke.?
::: Downloaded on - 09/06/2013 15:13:49 ::: 8 (iii) Whether it is proved that by
his willful conduct, the appellant
intentionally aided, instigated or
enticed deceased Meera to commit the suicide and thereby abetted its commission.?"
9. ig There is no dispute about the fact that the intention of the appellant and the maternal relatives of deceased Meera to bring about their marriage was to provide proper care to his then minor son i.e. DW Prabhakar. The marriage was solemnised in or about 1981-82. She used to visit her parents house till about beginning of 1985. The appellant migrated to village Ringangaon in or about 1985 along with his mother and deceased Meera. It has come on record that he purchased an agricultural land bearing Gat No. 726 in the name of his son i.e. DW Prabhakar.
10. The topography of the well in question may be gathered from sketch map (Exh.30) which was drawn by the Circle Revenue Inspector. The ::: Downloaded on - 09/06/2013 15:13:49 ::: 9 sketch map (Exh.30) would show that the well is situated in land Gat No.724 which is on western side of the land Gat No.726 owned by the appellant, after leaving a land bearing G.No.725 owned by one Ananda Shripati Doke. The well is approximately in the middle of the land Gat No. 724 owned by Chindu Kisan Doke. These lands are adjacent to a public way leading to village Warad. The public way is on the southern side of the strips of the lands referred to above. There is a water canal adjoining the well in question.
11. The spot panchanama (Exh.17) is an admitted document. The recitals of the spot panchanama purport to show that diameter of the well is of 15 ft. There was water up to level of 15 ft. from bottom side and the total depth of the well was 40 ft. It was noticed by the Police and the panchas that on northern side of the well, there was an electric pump set installed on wooden planks which were mounted on iron angles.
There was an electric pole at a distance of 10 ft. away from the well. On southern side of the well one small bucket to which a rope was tied ::: Downloaded on - 09/06/2013 15:13:49 ::: 10 was found lying. There were crops of Jawar, raw-
cotton, sunflower and chilli in the agricultural land of Chindu Doke.
12. The spot panchanama (Exh.17) did not give any clue to infer that deceased Meera had fallen in the well due to accidental slipping of the legs. There were no signs on the land around the circumference of the well to show that she had skidded from any part of the circumference.
The fact that the aluminum bucket was found
lying on the upper portion near the
circumference of the well is indicative of
absence of the use thereof by deceased Meera.
For, had she tried to draw water with the help of the bucket tied to a rope, ordinarily, the bucket would have been found inside the well. Her Chappals were not found in the proximity of the well. The incident occurred at about 2-00 p.m. The water could be drawn by her from the nearby canal or by using the electric pump set. If at all she had attempted to draw the water by using the bucket tied with the rope, at least while pulling the bucket upwards, it would have gone ::: Downloaded on - 09/06/2013 15:13:49 ::: 11 downwards along with her. No such thing had happened. The report of Police Patil (Exh.15) is based on hear-say information received from one Murlidhar Arjun Doke. However, it is not known as to how said Murlidhar Doke came to know about the accidental fall of Meera in the well.
13. It is in the above background that version of ig PW 2 Mandabai, PW 3 Ramesh, PW 5 Sahebrao, who is the son of the land owner are most significant. Their versions purport to show that in the relevant noon PW Mandabai was working as labour in the agricultural land of PW Sahebrao Chindu Doke. She was plucking raw cotton from the plants. Her version purports to show that the appellant was seen beating Meera in their land. She narrated that he pulled hair of Meera and assaulted her by hands at about mid-day. Her version purports to show that she and her co-
worker by name Sakhubai saw the incident of beating. They went away after the work was over.
She admitted that Jawar crops were standing in the agricultural land of the appellant and the middle agricultural land of Ananda at the ::: Downloaded on - 09/06/2013 15:13:49 ::: 12 relevant time. The Jawar crops were ripe for harvesting. She admitted that due to the standing Jawar crops in those fields, she was unable to see from the field of Chindu Doke to other fields. However, it is worthwhile to notice that PW Mandabai narrated that the appellant and Meera were working on eastern side of their land. She could not locate as to what agricultural work they were doing.
ig The version of PW Mandabai reveals that in all the nearby agricultural lands, work was going on. She admits that passers by were going from the public road situated on the southern side of the agricultural lands. Since, the raw cotton plants could be only of about 3/4 fts. height, PW Mandabai could have viewed all the other adjacent lands.
14. The testimony of PW Ramesh purports to show that on 18.11.1993 at about 12-30 p.m. he went near land of Chindu Doke. He claims to have seen the appellant while assaulting Meera by means of fists and kicks. His version purports to show that he had seen from the distance of about 30/35 ft. that the appellant was giving ::: Downloaded on - 09/06/2013 15:13:49 ::: 13 fist and kick blows on person of deceased Meera.
He came to know around 4/4-30 p.m. that Meera died by drowning in the well. His version reveals that there is a water canal in the eastern portion of the land of the appellant. His version purports to show that the appellant and Meera were on the eastern Bandh of their land.
Obviously, they were not amidst the Jawar crop.
It is of common knowledge that middle Bandhs are on higher level and ordinarily at least 2/4 fts.
above the level of the land. The visibility of the place where the appellant and Meera were standing was not, therefore, marred due to the standing Jawar crops. Nothing of much importance could be gathered from cross-examination of PW Ramesh in the context of core of his ocular evidence.
15. On close scrutiny of the testimony of PW 5 Sahebrao, it is explicit that the relations between the appellant and Meera were strained.
His version purports to show that while he was ploughing in his agricultural land at about 12-30 p.m., said Meera reached near the well and jumped ::: Downloaded on - 09/06/2013 15:13:49 ::: 14 therein. He heard the sound of her falling in the well and rushed there. He also noticed that the appellant immediately reached near the well.
He admits, unequivocally, that he heard from the villagers that relations between the appellant and deceased Meera were not cordial. He admitted that he had not stated to any one that she had jumped in the well. However, he explained that he had stated ig this fact to the Police during course of recording of his statement. There is no substantial reason coming forth to dislodge his version. He is owner of the land in which the well in question is situated. He has no business to tell lie. His relations with the appellant were never strained.
16. The testimony of PW Sahebrao and PW Mandabai would make it amply clear that PW 8 Shakuntalabai was also working in the land of PW Sahebrao in the relevant noon. The version of PW Shakuntala purports to show that on 18.11.1993, while she was plucking raw cotton pods, she had seen the appellant while assaulting Meera by fists and kicks. She admits that only women ::: Downloaded on - 09/06/2013 15:13:49 ::: 15 labours were working in the lands and there was no male member present in the agricultural land.
Her version purports to show that the appellant was standing on the bandh which was on the other side of the agricultural land where she was working. Her version reveals that approximately up till about 2-00 p.m., she was working in her agricultural land. She deposed that she left the agricultural land along with PW Mandabai.
17. The learned counsel for the appellant would submit that the above four (4) witnesses are untrustworthy. He argued that they are got-
up witness. He submitted that the Police statements of the above witnesses did not disclose that they had seen the incident of assault or the incident of Meera's plunging in the well. It is true that PW 9 PSI Nighot, admitted that during investigation he did not find any witness who had seen Meera while jumping in the well. He also admitted that there is no medical evidence available regarding marks of violence on her person prior to her death. He admitted that PW Ramesh did not state before him ::: Downloaded on - 09/06/2013 15:13:49 ::: 16 that he had seen the appellant while beating Meera by means of kicks and fist blows nor PW Sahebrao stated that he saw her while jumping in the well. Still, however, no such omission could be ferreted from the Police statement of PW Shakuntalabai. It is probable, no doubt, that PW Sahebrao did not see Meera while jumping in the well. His version appears to be untrue. Still, however, the version of PW Shakuntala can not be lightly brushed aside. She was not on inimical terms with the appellant. Her version reveals that soon before the incident of Meera's drowning, she was beaten up by the appellant on the eastern bandh of his land. This is a glaring fact. In this background and having regard to the topography of the well in question, it is highly probable that Meera rushed towards the well after the incident of assault and jumped therein. It is proved, therefore, that her death is of suicidal nature.
18. The testimony of PW Bhikari, purports to show that the appellant used to suspect fidelity of Meera. His version reveals that the ::: Downloaded on - 09/06/2013 15:13:49 ::: 17 appellant used to beat her. She had narrated to PW Bhikari and other relatives about her plight in the matrimonial home before the couple migrated to village Ringangaon. The version of PW Bhikari further reveals that since 1991 onwards Meera was prohibited by the appellant from visiting the house of her paternal relatives. His version tends to show that in the evening of 17.11.1993, she visited his house for short period on account of "Bhaubij" festival.
It is the traditional ritual in which the sister waves oil lamp around head of her brother (............). His version reveals that after the ceremony she left within a short while. He lateron came to know that she was assaulted by the appellant due to her such visit to his house. He corroborated the recitals of the FIR (Exh.13). He admitted that Dagubai was leading happy family life with the appellant. He denied the suggestion that because the appellant was treating Dagubai well, his second sister i.e. Meera was given in marriage to the appellant. He gave a reasonable explanation that because the son of Dagubai was minor, such marriage of Meera ::: Downloaded on - 09/06/2013 15:13:49 ::: 18 was performed with the appellant. He admits that Meera did not disclose as to why the appellant suspected her character and what was the nature of suspicion.
19. Similarly, testimony of PW Namdeo reveals that whenever deceased Meera used to visit the paternal house, after her marriage, on occasions of festival like "Akhaji" and "Diwali", she used to tell them that the appellant was suspecting her character and for such reason was assaulting her. His version reveals that because they wanted to continue her residence with the appellant, they neglected her complaints. He narrated further that the appellant was not sending her to their house for about couple of years before her death. His version reveals that in the evening of the festival of "Bhaubij" she visited his house at about 10-00 p.m. and left after a short while. He learnt subsequently that she was beaten up by the appellant for committing defiance of his prohibitory directions. He admits that he and PW Bhikari sat together after they noticed death of Meera and they decided to lodge ::: Downloaded on - 09/06/2013 15:13:49 ::: 19 the complaint. There is nothing unnatural about such decision taken by them. He admitted that they suspected that she had committed suicide and, therefore, they decided to lodge the complaint. He admitted that Meera was not willing to marry the appellant and, therefore, there were always quarrels between herself and the appellant. It is but natural. The marriage was foisted on her from both the sides i.e. by her brothers and the appellant.
20. Coming to the version of PW 6 Padmakar, it emerges that on 17.11.1993, Meera returned home around 10-00 p.m. from the house of her brothers and, therefore, quarrel had taken place between the appellant and herself. He narrated that the appellant then assaulted Meera in that night. It is pointed out by the learned counsel for the appellant that the date shown in the FIR (Exh.13) of festival of "Bhaubij" is 15.11.1993 and version of PW Padmakar is discrepant inasmuch as he narrated such a dated as 17.11.1993. It is pertinent to notice that PW Padmakar resides at a distance of about 25 fts. away from residential ::: Downloaded on - 09/06/2013 15:13:49 ::: 20 house of the appellant. He being the then neighbour of the appellant, his version assumes significance. Nothing of any importance could be gathered from his cross-examination. Thus, it is duly proved that Meera was beaten up by the appellant in the evening of festival of "Bhaubij". The mere discrepancy in the date of such festival is of no much importance. One can not be oblivious of the fact that the incident in question occurred in the year 1993, whereas statements of PW Padmakar and other witnesses were recorded in the month of September 1997.
The memory of witnesses was likely to fade due to lapse of such time gap of about four (4) years.
21. Another neighbour by name PW 7 Adhar highlighted matrimonial relationship between the appellant and Meera. His house is situated at a distance of about 70/80 ft. away from the house of the appellant. His version purports to show that frequently there used to be disputes between the appellant and Meera. He deposed that the appellant used to assault Meera. His version further purports to show that on 17.11.1993 she ::: Downloaded on - 09/06/2013 15:13:49 ::: 21 was assaulted by the appellant somewhere around 9/10 p.m. He deposed that he was present in front of his house and had seen the incident of assault. He also gave the reason for the assault. According to him, because she had gone to the house of her brothers, she was assaulted by the appellant in that evening. His version shows that he had no enmity with the appellant.
He statedig that in the evening of 17.11.1993, entrance door of house of the appellant was open and hence he could see the incident of assault.
True, he also admitted that there was discussion amongst the villagers that on 17.11.1993, the appellant had assaulted Meera. Still, however, the version of PW Adhar can not be thrown overboard only on the basis of such stray admission. He is an independent witness.
22. The version of DW Prabhakar purports to show that relations between deceased Meera and the appellant were cordial. He stated that the appellant was never suspecting her character and they were living happily. He further deposed that on 18.11.1993, Meera accidentally fell in ::: Downloaded on - 09/06/2013 15:13:49 ::: 22 the well and died. He came to know about her death subsequently. He deposed that she had gone to the house of her brothers at about 4 p.m. on the eve of "Bhaubij" festival, along with his step sister i.e. Mangala. He denied that there took place quarrel between the appellant and Meera in the said evening. One can not be oblivious of the fact that even though DW Prabhakar ighad no personal knowledge about the nature of death of Meera, yet, he stated that she had accidentally fallen in the well. It is more probable that he was tutored by the appellant.
His negative version is of no much importance. He is under the thumb of the appellant. Needless to say, the otherwise reliable and independent evidence about the incident of assault on deceased Meera by the appellant in the relevant evening and also in the noon of the day of incident, can not be discarded merely because DW Prabhakar attempted to give favourable evidence in support of the defence.
23. The learned counsel appearing for the appellant seeks to rely on certain observations ::: Downloaded on - 09/06/2013 15:13:49 ::: 23 in "Sahebrao Anandrao Pohare and others Vs. State of Maharashtra" 2007 (Supp.) Bom.C.R. 8. A Single Bench of this Court held that the prosecution story was unreliable in respect of the nature of suicidal death of the deceased victim. The FIR was lodged in the given case after about eight (8) days of the death. In the peculiar circumstances of that case, the conviction ig of the appellants was found to be unsustainable. The facts of the present case are on quite different footings. The learned counsel further invited my attention to observations in "Shivaji Janaba Patil and others Vs. State of Maharashtra" 2004 (1) Mh.L.J.411. A Single Bench of this Court held that every petty bickering or disagreement can not be treated to be instances of the matrimonial cruelty. It has been observed that there has to be nexus between such harassment, illtreatment or cruelty and the death of the victim. There can not be dispute with the legal proposition regarding requirement of there being interconnection between the alleged matrimonial cruelty and the resultant death of the married woman.::: Downloaded on - 09/06/2013 15:13:49 ::: 24
24. In "Sarojakshan Shankaran Nayar and others Vs. State of Maharashtra" 1995 Cri.L.J. 340, a Division Bench of this Court held that where the husband was of suspicious nature and made life difficult for the deceased wife, by demeaning herself then the conviction for offence U/s 498-A of the I.P.Code was justified. The conduct of the husband was found to be such that the wife was likely to be driven to commit the suicide. In "Mohd.Hoshan and another Vs. State of A.P." AIR 2002 Supreme Court 3270, the Apex Court held that continuous tauting or teasing the deceased wife by her husband would amount to mental cruelty. In "Pawan Kumar and others Vs. State of Haryana" AIR 1998 Supreme Court 958, the Apex Court noticed that there were quarrels between the husband and the deceased wife at place of her sister, only one day before the incident of her suicide and the deceased had informed her sister that "it would be difficult to see her face in future", which constituted abetment of the husband for commission of the suicide by the deceased wife. In the present ::: Downloaded on - 09/06/2013 15:13:49 ::: 25 case too, the appellant assaulted the deceased wife a day or two before the incident of her suicide. He also assaulted her in the very same noon while they were in the agricultural land.
Under the circumstances, the only deducible inference would be that he subjected her to mental and physical cruelty and by his conduct, abetted the commission of her suicide.
25. Considering the peculiar fact situation obtained in the present case, I have no hesitation in holding that the appellant has been rightly convicted by the learned Sessions Judge, for the offences punishable U/ss 498-A and 306 of the I.P.Code. I am in general agreement with the findings of the learned Sessions Judge. There is nothing redeeming about the appellant. The sentence awarded to him is proportionate to the offences proved against him. Hence, there is no merit in the appeal.
26. In the result, the appeal is dismissed.
The impugned judgment of conviction and sentence is maintained. The appellant shall immediately ::: Downloaded on - 09/06/2013 15:13:49 ::: 26 surrender to the bail. The learned Sessions Judge, shall report compliance of the execution of the order of sentence within a period of four (4) weeks after receipt of the writ or R & P whichever is earlier.
(V.R.KINGAONKAR,J.) asp/office/Crappeal34497 ::: Downloaded on - 09/06/2013 15:13:49 :::