Bombay High Court
Bhagirathibai Surji Bhanushali & ... vs State Of Maharashtra on 7 October, 1997
Equivalent citations: 1998BOMCR(CRI)~
Author: Vishnu Sahai
Bench: Vishnu Sahai, T.K. Chandrasekhara Das
ORDER Vishnu Sahai, J.
1. Through this appeal, the appellants have challenged the judgment and order dated 30-11-1993, passed by the Additional Sessions Judge, Greater Bombay, in Sessions Case No. 182 of 1987, whereby they have been convicted and sentenced in the manner stated hereinafter :--
(i) Under section 304-B read with 34, Indian Penal Code to 7 years R.I. and to pay a fine of Rs. 1,000/- i.d. R.I. for 2 months.
(ii) Under section 306 read with 34, Indian Penal Code to 3 years R.I. and to pay a fine of Rs. 1,000/- i.d. R.I. for 2 months.
(iii) Under section 498-A, Indian Pena! Code read with 34, Indian Penal Code to 3 years R.I. and to pay a fine of Rs. 1,000/- i.d. R.I. for 2 months.
Their substantive sentences were ordered to run concurrently.
2. In short, the prosecution case is as under :---
The appellants Shambhulal Bhanushali and Himmatlal Bhanushali are real brothers. The appellant-Smt. Bhagirathibai Bhanushati is their mother. At the time of the incident, they were living in Bhanushali House, IIT Bazar Gate, Bombay-76.
The deceased Dhanvanti was the daughter of Mithabai Bhanushali P.W. 3 and Valji Bhanushali.
Prior to her marriage, she along with her parents and brother Kantilal P.W. 1 used to live in Ratandeep colony, Shastri Nagar, Bhandup, Bombay. Her brother Laxmidas, P.W. 2 used to reside in Jaliyan Apartments, Gupte Road, Dombivli (W.) in the District of Thane.
On 17-5-1984, Dhanvanti was married to Shambhulal Bhanushali at Ghatkopar. At the time of the marriage, gold ornaments were demanded by the appellants and Surji Bhanushali, father of Shambhulal and Himmatlal and husband of Smt. Bhagirathibai. They were given by Dhanvanti's parents. After the marriage, Dhanvanti started living with the appellants, at Bhanushali House, IIT Bazar Gate, Bombay-76. For one year, she was treated properly. Thereafter she gave birth to a daughter and the appellants and Surji Bhanushali started abusing and beating her. The appellants asked her to get a Steel Almirah from her parents and warned her that if the said demand was not fulfilled, she would be killed. Two months, thereafter the appellants started asking her to get a gold ear chain from her parents. From the evidence, it transpires that this was told by Dhanvanti to her brothers Kantilal, P.W. 1 and Laxmidas P.W. 2 and her mother Mithabai, P.W. 3 when she met them. Evidence of Kantilal and Laxmidas is that Dhanvanti told them that the appellants were demanding gold ear chain and were harassing and beating her to ensure that the said demand was met.
Thereafter, the appellants are said to have made a monetary demand of Rs. 50,000/-. They asked Dhanvanti to get the said amount from her parents, Kantilal, and others. Evidence of Kantilal and Mithabai is that Dhanvanti told them that in case the said demand was not fulfilled, they would kill her. Kantilal and others decided to fulfil the monetary demand to the tune of Rs. 20,000/-. It is said that Dhanvanti's father told the appellants that they were ready to pay Rs. 20,000/- It is alleged that on Rakshabandan day, the appellants did not allow Dhanvanti to visit her parent's house.
Evidence of Kantilal and Mithabai is that they received a message that Dhanvanti was admitted in Rajawadi Hospital and that of informant Laxmidas is that at about 10 p.m. he received a message from his father that Dhanvanti was admitted in Hospital. Accordingly, Kantilal, Laxmidas and Mithabai went to Rajawadi Hospital where they saw her dead body which was smelling of baygon spray. They found that froth was coming out from Dhanvanti's mouth.
Evidence of Mithabai is that when she enquired from the appellant-Shambhulal, as to how Dhanvanti had died, he replied that she had died of her own sinful act (Paap se Mar gayi).
2A. How Dhanvanti died is clear from the evidence of Surji Bhanushali, D.W. 1, the husband of appellant-Bhagirathibai and the father of appellants-Shambhulal and Himmatlal. From his evidence, it transpires that on 30-8-1986, at about 7 p.m. his wife (appellant-Smt. Bhagirathibai Surji Bhanushali) came to his shop and told him that Dhanvanti had consumed some medicine and was not talking and hence, he should immediately come to the house. Accordingly, Surji Bhanushali went home, saw Dhanvanti and called Dr. Gandhi P.W. 4. Evidence of Dr. Gandhi shows that between 7/7.30 p.m. one Eknath Ghosalkar, came and informed his compounder that he had to make an emergency visit. Accordingly, Dr. Gandhi went to the house of Surji Bhanushali near IIT and saw that Dhanvanti was in an unconscious condition and hence, advised that she be taken to Rajawadi Hospital at the earliest. Accordingly, Surji Bhanushali, appellant Shambhulal and Eknath Ghosalkar, took Dhanvanti to Rajawadi Hospital, where she was declared dead before admission. Evidence is that thereafter Surji Bhanushali gave information to Dhanvanti's family members on phone.
3. The F.I.R. of the incident was lodged by Laxmidas, P.W. 2 at 8.30 a.m. on 31-8-1986, at police station, Sakinaka. In the said F.I.R., allegations of demand made by the appellants, and the cruelty meted out to Dhanvanti have been mentioned. On the basis of the F.I.R., a case under sections 498-A, 306 and 114(A), Indian Penal Code was registered against the appellants.
4. The post mortem examination of the corpse of Dhanvanti was conducted by Dr. Prabhakar Bhave, P.W. 5. The history given to Dr. Bhave was suicidal poison by baygon spray. Dr. Bhave found that face was pale, eyes were open, tongue was inside the mouth and froth was coming out from the mouth. According to Dr. Bhave, Dhanvanti died on account of baygon poisoning.
5. The investigation was conducted in the usual manner by A.P.I. Siddhu Lagadi, P.W. 9. His evidence is that at about 9.35 p.m. on 30-8-1986, constable No. 7160 from Rajawadi Hospital gave a message that a woman called Dhanvanti Bhanushali was brought to the hospital and died before admission. Consequently, A.P.I. Lagadi went to hospital and prepared a panchanama of the corpse. Thereafter, he went to the house of the appellants and seized the tin of baygon spray from the kitchen under a panchanama Exh. 24.
Evidence is that some investigation was also conducted by P.l. Khare and A.P.I. Lagadi assisted him in the same. Since P.l. Khare, having retired was not available and as A.P.I. Lagadi was familiar with his handwriting, he proved the investigation done by him.
After the completion of the investigation, P.I. Khare, submitted a charge sheet against the appellants on 8-12-1986.
6. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the appellants were charged on counts mentioned in para 1. They pleaded not guilty and claimed to be tried.
During trial, in all, the prosecution examined as many as 9 witnesses. 3 of them namely, Kantilal, Laxmidas and Mithabai, P.Ws. 1, 2 and 3 respectively were examined to prove the marriage of Dhanvanti with the appellant-Shambhulal; the demands made by the appellants at the time of the marriage, and after birth of a daughter, to Dhanvanti; and also cruelty meted out to her on account of non-fulfilment of the demands and to ensure their fulfilment.
In defence, 2 witnesses were examined namely Surji Bhanushali, D.W. 1, father of Shambhulal and Himmatlal and husband of Smt. Bhagirathibai and D.W. 2 Valji Gajra, father-in-law of Jagdish, another son of Surji Bhanushali. They were examined to prove that there was no tradition of demand in their community.
The trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellants in the manner stated in para 1.
7. We have heard Mr. A.P. Mundargi for the appellants and Mr. R.Y. Mirza, Additional Public Prosecutor, for the State of Maharashtra-respondent. We have also perused the depositions of the prosecution witnesses; the material Exhibits, proved by the prosecution, the statement of the appellants recorded under section 313, Code of Criminal Procedure; and the impugned judgment. After thoughtfully reflecting over the matter, we are satistied that this appeal deserves to be partly allowed. We feel that the appellants deserve to be acquitted under section 304-B read with 34, Indian Penal Code but, their convictions and sentences under section 306 read with 34, Indian Penal Code and 498-A read with 34, Indian Penal Code, warrant no interference.
8. In the instant case, we find the appellants, could not have been convicted for the offence under section 304-B read with 34, Indian Penal Code. We say this because, the marriage of the appellant Shambhulal with the deceased Dhanvanti took place on 17-5-1984; the latter committed suicide on 30-8-1986; and the offence under section 304-B, Indian Penal Code, was inserted in the Indian Penal Code, by amendment on 19-11-1986.
Article 20 of the Constitution of India, mandates thus :---
"(1) No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the taw in force at the time of the commission of the offence."
Since admittedly on 17-5-1984 and 13-8-1986, section 304-B was not an offence under Indian Penal Code, by virtue of the embargo imposed by Article 20(1) of the Constitution of India, the appellants could not have been convicted for the said offence. In our view, they deserve to be acquitted in respect of it.
We are fortified in our view by the decision of the Supreme Court in the case of Soni Devrajbhai Babubhai v. State of Gujarat, reported in 1994(4) S.C.C. 298, wherein Their Lordships have held that if an incident occurred prior to the date on which, the offence under section 304-B has been inserted, (prior to 19-11-1986) the trial of the accused for an offence under section 304-B would be hit by Article 20(1) of the Constitution of India.
9. We, however, feel that there is cogent and sufficient evidence to confirm the conviction of the appellants, on the other two counts namely under section 306 read with 34. Indian Penal Code and 498-A read with 34, Indian Penal Code.
In para 2 of our judgment, we have set out the prosecution story on the basis of the recitals contained in the examination-in-chief of Kantilal, Laxmidas and Mithabai, out of whom Kantilal and Laxmidas were brothers of Dhanvanti and Mithabai was her mother. A perusal of the averments made in the said para would clearly show that for one year after marriage, Dhanvanti was properly treated by the appellants; thereafter, she gave birth to a female child; and ever since then a volley of demands were unleashed by the appellants, who asked her to make her parents and brothers to fulfil them and in order to pressurise them to fulfil their demands, they started harassing and abusing her.
Kantilal, Laxmidas and Mithabai have stated that the demands included a steel Almirah, gold ear chain and cash to the tune of Rs. 50,000/-.
Even if the cash demand of Rs. 50,000/- is not taken into consideration, because in the F.I.R., and in the statement of Laxmidas, there is no mention of it, we find that there is consistent evidence of the said witnesses in respect of the demand of steel Almirah and gold ear chain.
The evidence shows that the demand of Steel Almirah was fulfilled. This is borne out not only from the circumstance that the Investigating Officer saw the Steel Almirah when he visited the place of the incident on 2-9-1986, but D.W. 1 Surji, father of the appellants - Shambhulal and Himmatlal and husband of Bhagirathibai also admitted in his cross-examination, in para 24, that in April, 1985, a khahhi coloured Almirah was given by Kantilal and Laxmidas. We are not prepared to accept his statement that the said Almirah was given voluntarily by them because we find no reason to reject the testimony of Kantilal, Laxmidas and Mithabai whose evidence is categorically to the effect that the said Almirah was not given voluntarily but, because Dhanvanti was being abused and warned that if it was not given, she would be beaten.
We find that in respect of demand of gold ear chain, there is consistent evidence of P.W. 1 Kantilal, Laxmidas and Mithabai. Evidence is that on 10-8-1986, Dhanvanti came and told them that appellants were demanding gold ear chain and were harassing and beating her. We are implicitly satisfied that the testimony of Kantilaf, Laxmidas and Mithabai in respect of demand and ill-treatment being meted out to her inspires implicit confidence.
9A Apart from deposing about the ill-treatment and crueity, meted out to Dhanvanti in relation to the said demands Kantilal, Laxmidas and Mithabai have also stated about the cruelty in general, which was meted out by the appellants, to Dhanvanti.
P.W. 1 Kantilal stated that his marriage had taken place on 9-5-1985 and he had gone to the house of the appellants a couple of days prior to the date of the marriage to bring Dhanvanti for the marriage but, the appellants did not allow her to come, and she came directly with the appellants Bhagirathibai and Shambhulal and her father-in-law to the marriage hall, and the same evening, they took her away. Again, Kantiiaf has stated that on 17-5-1985, Dhanvanti's brother-in-law Jagdish was married and on that day, when he met her, she told him that the appellants were harassing and ill-treating her on the pretext that her parents had not given to her anything in the marriage, Kantilal stated that she was weeping when she told him this. Both Kantilal and Laxmidas slated that the appellants did not allow Dhanvanti to visit them on 19-8-1986, the Rakshabandhan day. Laxmidas stated that when he asked appellant-Bhagirathibai the reason for not sending her on Rakshabandhan day, she replied that it was her sweet will whether to send her to their house or not. He also stated that Dhanvanti was weeping and when he asked Bhagirathibai the reason for her weeping, she did not give any answer.
Laxmidas also stated that after a girl had been born to Dhanvanti, she started complaining that the appellants were abusing and beating her. His evidence shows that she told him this, when she visited him, after giving birth to her daughter. Mithabai also stated that for one year after the marriage, the appellants treated Dhanvanti properly and thereafter, Dhanvanti started complaining that they were ill-treating her. She also stated that they had gone to bring Dhanvanti for delivery, but the appellants did not send her to their house.
Although, Kantilaf, Laxmidas and Mithabai were subjected to extensive cross-examination, nothing could be elicited therefrom, which would throw doubt on their veracity and truthfulness. Accordingly, we accept their evidence.
10. In this connection it would be pertinent to refer to the presumption contained in section 113-A of the Indian Evidence Act. The said provision reads as under :---
"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 abeted 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 crueity, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."
Explanation. For the purposes of this section 'cruelty' shall have same meaning as in section 498-A of Indian Penal Code (45 of 1860).
A perusal of the section would show that where suicide committed by a woman, within seven years of her marriage, and there is evidence to show that her husband or relatives of her husband had subjected her to cruelty, the Court may presume that such a suicide had been abetted by her husband or by such relations of the husband.
ln the instant case, as is apparent from what has been mentioned above, there is sufficient evidence to show that Dhanvanti was subjected to cruelty not by her husband, the appellant Shambhulal but also by her mother-in-law Smt. Bhagirathibai and her brother-in-law Himmatlal, both appellants, and her death took place within nearly 26 months of her marriage with the appellant-Shambhulai.
Evidence of Kantilal, Laxmidas and Mithabai shows that the appellant-Shambhulal was married to Dhanvanti on 17-5-1984 and she committed suicide on 30-8-1986. Since she committed suicide within seven years of marriage, the presumption stipulated by this section would squarely be raised against the appellant.
11. Assurance is lent to the evidence of Kantilal, Laxmidas and Mithabai by the circumstance that the F.I.R. of the incident was promptly lodged by Laxmidas and therein, allegations of cruelty and ill-treatment in general, on the part of the appellants against Dhanvanti, and those pertaining to pressurising her to fulfil their demands, are contained. It is significant to point out that Laxmidas received the news of her death at 10 p.m. on 30-8-1986, thereafter, proceeded to Rajawadi Hospital and next morning at 8.30 a.m. lodged the F.I.R. at Police Station Sakinaka. It is understandable that the F.I.R. was not lodged at night because, it can safely be assumed that at night, he must be possessed with grief and busy in informing relations.
This prompt F.I.R. goes a long way to establish that the prosecution case is true.
12. In our view, the evidence on record squarely proves the commission of offences, punishable under sections 306 read with 34, Indian Penal Code and 498-A read with 34, Indian Penal Code by the appellants.
We may straight away mention that the evidence of D.W. 1 Surji Bnanushali and Velji Gajra, D.W. 2, the latter being the father-in-law of Jagdish, another son of Surji Bhanushali, does not help the appellants in any manner. Their evidence is that in their community, no dowry demand/demands are made. Apart from the fact that Kantilal, Laxmidas and Mithabai have emphatically stated that at the time of the marriage, and after birth of a daughter to Dhanvanti, demands were made by the appellants. We feel that the question of demand is wholly extraneous so far as offences under section 306 read with 34, Indian Penaf Code and Explanation (a) to section 498-A read with 34, Indian Penal Code, are concerned. The offence under section 306 read with 34, Indian Penal Code deals with abetment of suicide and that under Explanation (a) to section 498-A. Indian Penal Code deals with a woman being subjected to any wilful conduct by the husband or any of his relations which is of such a nature as is likely to drive her to commit suicide.
In our view, the evidence of the two defence witnesses will not absolve the appellants, of the said offences.
13. This leaves us with only the question of sentence.
So far as appellant-Shambhulal Bhanushali is concerned, we find that he is in jail since 30-11-1993, the date of his conviction. This means that he has already served out his sentence.
As regards appellants-Bhagirathibai and Himmatlal, Mr. Mundargi urged that in as much as the incident had taken place more than 11 years ago and there is evidence to show that they have been in jail for about 2 months, the ends of justice would be satisfied if their jail sentence is reduced to the period already undergone by them and in lieu, some fine is imposed. We regret that we cannot accede to his submission. We find that in a most shameless manner, the appellants, made demands from Kanlilal, Laxmidas and Mithabai and to pressurise their fulfillment, started abusing, beating and ill-treating Dhanvanti. The evidence also shows that their general behaviour towards Dhanvanti was characterised by cruelty and ill-treatment. Her existence must have become nightmarish because, no girl who had been recently married and delivered a daughter would have otherwise, committed suicide.
Mr. Mundargi urged that Smt. Bhagirathibai is aged about 62 years and on account of her old age, it would be too cruel if she is sent to jail to serve out her sentence. We do not find any merit in his contention. On account of her mature age and being the mother-in-law she was expected to treat Dhanvanti with tenderness and sympathy. On the converse, she joined with her sons, appellants-Shambhulal and Himrnatlal to force her parents and brothers to fulfil their demands and to ensure their fulfillment treated her in a most inhuman manner.
In our view, persons like the appellants, deserve no sympathy.
We feel that a stringent view is required to be taken by courts in anti-social offences like those contained in sections 306 and 498-A, Indian Penal Code, which are rampant these days. Their growing menace needs to be curbed. A soft pedalling policy on the question of sentence, would result in persons committing such crimes with impunity. It is in this larger social perspective which has also weighed with us in not reducing the sentence of Bhagirathibai and Himmatlal to the period already undergone even on their paying some fine in lieu thereof.
14. We find no merit in the submission of Mr. Mundargi that since the story of demand is not backed-up by any documentary evidence, and the cruelty and ill-treatment was not in connection with the demand, offences under section 306 read with 34. Indian Penal Code and 498-A read with 34, Indian Penal Code, are not made out against the appellants.
In the first place, it is common knowledge that people who make demands are not indiscreet enough to make them in writing; obviously because they do not want to create any documentary evidence against themselves.
Secondly, the submission of Mr. Mundargi that there is no nexus between demand and cruelty and ill-treatment being meted out to Dhanvanti, is not borne out by the evidence on record. A perusal of paras 2 and 9 shows that there was nexus between the demands made by the appellants and the cruelty meted out to Dhanvanti.
15. In fact, the submission of Mr. Mundargi that there should be nexus between demand and cruelty is belied by the provisions contained in sections 306 and 498-A, Indian Penal Code.
Section 306, Indfan Penal Code reads thus :---
"Abetment of suicide.---If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of . either description for a term which may extend to ten years, and shall also be liable to line."
Section 498-A, Indian Penal Code reads thus:
"Husband or relative of husband of a woman subjecting her to cruelty; whoever being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine."
Explanation.---For the purposes of this section 'cruelty' means
(a) any wilful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
A perusal of section 306, Indian Penal Code and Explanation (a) of section 498-A, Indian Penal Code would show that the question of demand is wholly extraneous. What is material is :---
(a) Under section 306, Indian Penal Code, there should be evidence of abetment of suicide; and;
(b) Under Explanation (a) of section 498-A, Indian Penal Code, there should be evidence of any wilful conduct by husband of a woman or his relations which is likely to drive her to commit suicide......"
In the instant case, there is evidence to prove commission of both the offences.
16. In the result, this appeal is partly allowed and partly dismissed. We acquit the appellants for the offence under section 304-B read with 34, Indian Penal Code and set aside their convictions and sentences on that count. In case they have paid the fine, it shall stand refunded to them.
We, however, maintain the convictions and sentences of the appellants, for offences under sections 306 read with 34, Indian Penal Code and 498-A read with 34, Indian Penal Code.
We find that the appellant-Shambhulal Bhanushali is in Jail since the date of his conviction, i.e. 30-11-1993. This implies that he has served out the sentence awarded to him on the said counts. In case that is so, he shall be released from Jail unless wanted in some other case.
Appellants Bhagirathibai Surji Bhanushali and Himmatlal Surji Bhanushali are on bail. They shall be taken into custody forthwith to serve out their sentences. As directed by the trial Court, their substantive sentences shall run concurrently.
At this stage, Mr. Mundargi made a oral prayer that some time be granted to the appellants, to surrender. We regret that we cannot accede to his contention as the law does not permit this. Accordingly, the prayer is rejected. In case an application for a certified copy of this judgment is preferred, the same shall be issued on an expedited basis.
17. Appeal allowed partly.