Research › Search › Judgment

Bombay High Court · body

2006 DIGILAW 1733 (BOM)

CHINTAMAN PANDURANG KAPSE v. State of Maharashtra

2006-10-19

R.C.CHAVAN

body2006
ORAL JUDGMENT :- Taking exception to conviction of appellant No. 1 for offences punishable under sections 498A, 306 and 304B read with section 34 of the Penal Code and conviction of appellant No.2 for offences punishable under sections 498A and 306 read with section 34 of the Penal Code, the accused before the learned 5th Ad hoc Additional Sessions Judge, Nagpur, in Sessions Trial No. 77 of 2002, have preferred this appeal. 2. Facts, which led to prosecution and conviction of the appellants, are as under: Appellant No.1 Chin taman was married to victim Kavita on 6-4-2001 with the mediation of appellant No.2 Asha. After marriage, the couple started residing in the premises of appellant No.2 Asha. Kavita committed suicide by jumping in the well on the night of 10-11-2001. It was alleged by the victim's parents that Kavita used to be ill-treated by appellant No. 1 Chintaman at the instance of appellant No. 2 Asha for non-fulfillment of demands of Rs. 25,000/- and some articles like refrigerator, cooking gas, etc., as also because of illicit intimacy between the two appellants. It was alleged that this drove victim Kavita to commit suicide. On the report, police had registered an offence and commenced investigation; in course of which, after performing inquest, the body of Kavita was sent for post-mortem examination. Police recorded statements of witnesses, performed necessary panchanamas and on completion of investigation, sent the charge-sheet before the learned Judicial Magistrate First Class, 10th Court, Nagpur, who committed the case to the Court of Session. 3. The learned 5th Ad hoc Additional Sessions Judge, Nagpur, to whom the case was made over, charged the appellants of offences punishable under sections 498-A, 306 read with section 34 and 304-B of the Penal Code. Since they pleaded not guilty, the appellants were put on trial; in course of which the prosecution examined in all eight witnesses. Upon consideration of evidence tendered at the trial, the learned Trial Judge convicted both the appellants of offences punishable under sections 498A and 306 read with section 34 of the Penal Code and sentenced them to suffer simple imprisonment for two years and fine of Rs. 1,000/- on the first count and simple imprisonment for five years and fine of Rs. 1,000/-on the second count. 1,000/- on the first count and simple imprisonment for five years and fine of Rs. 1,000/-on the second count. The learned Judge also held appellant No. 1 Chintaman guilty of offence punishable under section 304-B of the Penal Code and sentenced him to suffer SI for seven years. Aggrieved thereby, the appellants have preferred this appeal. 4. Though the appellants had preferred a common appeal taking exception to their conviction and sentence imposed upon them, the two appellants were represented by two different counsel. Shri Wasnik, the learned counsel for appellant No. 1 Chintaman, and Shri Deshpande, the learned counsel for appellant No. 2 Asha, took me through the entire evidence in order to demonstrate the innocence of their clients in the unfortunate death of Kavita. Shri Jaiswal, learned Additional Public Prosecutor for the State, pointed out that the contentions raised by the appellants had no merit and supported the judgment delivered by the learned Trial Judge. 5. There is no dispute that victim Kavita was married to appellant No.1 on 6-4-2001 and that she died due to drowning on 10-11-2001. Inquest panchanama at Exhibit 17 proves this fact. The notes of post-mortem examination at Exhibit 22 also shows that the victim died of drowning. The notes show that the victim did not have any surface wound. 6. PW 1 Mandabai, the victim's mother, and PW 2 Babarao; the victim's father, are not agreed as to whether any dowry was demanded at the time of settlement of marriage. While PW 1 Mandabai claimed in her cross-examination that there was no demand at the time of settlement of marriage, her husband PW 2 Babarao denied that there was no demand at the time of marriage. 7. PW 4 Padmakar, Police Patil of the Village of victim's parents, stated that at the time of marriage, some members from the groom's family had committed nuisance under the influence of liquor. 8. PW 5 Daulatrao, the cousin of PW 2 Babarao, also states that at the time of marriage, there was some nuisance because some members of the groom's family were under the influence of liquor. He too stated that there was no demand of dowry at the time of settlement of marriage. 9. The evidence of these witnesses would show that the story about demand of dowry by PW 2 Babarao is not corroborated by other witnesses and, therefore, has to be rejected. He too stated that there was no demand of dowry at the time of settlement of marriage. 9. The evidence of these witnesses would show that the story about demand of dowry by PW 2 Babarao is not corroborated by other witnesses and, therefore, has to be rejected. This would necessitate finding out as to whether there were any subsequent demands. 10. PW 1 Mandabai stated that after the marriage, when Kavita came to the parental house for Akhadi festival, Kavita disclosed that she used to be beaten daily by appellant No.1 Chintaman and that there was a demand for T. V., cooler, refrigerator, cooking gas, etc. She also stated that Kavita had reported that there was a demand for Rs. 25,000/- from appellant No.1 and that appellant No. 1 had threatened Kavita that if the demands were not fulfilled, he would divorce her. 11. PW 2 Babarao also stated that he received a telephonic message from Kavita about the demands of cooking gas and Rs. 25,000/- for repairs of Matador. 12. PW 5 Daulatrao stated that there was a demand of Rs. 25,000/-. 13. The evidence of these demands has surfaced only after the incident. 14.PW 2 Babarao stated that he had gone to Kavita's house and also asked Kavita to come with him, but Kavita had refused stating that shortly there would be a festival of Diwali and she would come around Diwali. He stated that at that time, he convicted appellant No.1 to treat Kavita properly. 15. Shri Wasnik, the learned counsel for appellant No.1, stated that refusal of Kavita to accompany her father would rule out any ill-treatment to Kavita on the part of appellant No. 1. Therefore, according to the learned counsel, the reason for Kavita's death by drowning cannot be found in any conduct on the part of appellant No.1. 16. The learned Additional Public Prosecutor for the State submitted that Kavita's refusal to accompany her father need not be interpretated to mean that she was happy. He submitted that as pointed out by the learned counsel for appellant No.2, Kavita and appellant No. 1 had shifted from the house of appellant No.2 after Dassera. PW 1 Mandabai had stated that Kavita had already come to the parental house at the time of Dassera. He submitted that as pointed out by the learned counsel for appellant No.2, Kavita and appellant No. 1 had shifted from the house of appellant No.2 after Dassera. PW 1 Mandabai had stated that Kavita had already come to the parental house at the time of Dassera. The learned Additional Public Prosecutor, therefore, submitted that Kavita may be hopeful of a favourable turn in her matrimonial life after shifting to Wadgaon away from appellant No.2 and, therefore, may be reluctant to accompany her father, since Kavita was interested in making the marriage work. The contention of the learned Additional Public Prosecutor must be accepted as the only natural explanation of the events, which have been unfolded in the testimonies of the witnesses. 17. There is an allegation coming from PW 1 Mandabai and PW 2 Babarao that Kavita had reported to them that she used to be beaten by appellant No. 1 at the instance of appellant No.2. PW 6 Indira, the victim's cousin, stated that Kavita had told her that the two appellants had sexual relations amongst them, which worried Kavita. Kavita had also reported to Indira that Kavita's husband stayed at the house of appellant No.2 and that Kavita used to be beaten by her husband under the influence of liquor on account of appellant No.2. The witness stated that she had been warned by Kavita not to disclose these things to anyone else and, therefore, she had not stated about such illicit intimacy. The learned Additional Public Prosecutor submitted that there is no reason to disbelieve this evidence of PW 6 Indira. Shri Deshpande, the learned counsel for appellant No. 2, submitted that Indira had admitted in her deposition that appellant No.2 Asha had in fact mediated in the settlement of the marriage of appellant No.1 that with Kavita. PW 6 Indira had also stated that appellant No.2 is married and having children. She had also admitted that appellant No. 1 and Kavita were residing in appellant No. 2's house as tenants. He pointed out that this witness had not made a prompt statement to the police. The statement of PW 6 Indira was recorded three weeks after the incident and, therefore, was unreliable. She had also admitted that appellant No. 1 and Kavita were residing in appellant No. 2's house as tenants. He pointed out that this witness had not made a prompt statement to the police. The statement of PW 6 Indira was recorded three weeks after the incident and, therefore, was unreliable. The learned Additional Public Prosecutor submitted that since PW 6 Indira was residing at Yavatmal, her statement could not be recorded promptly and, therefore, mere delay in recording the statement cannot lead to any inference that what she stated was concoted. 18. The learned counsel for the appellant submitted that even if the entire evidence is read as it is, the complicity of appellant No. 2 in the unfortunate death of Kavita cannot be inferred. He pointed out that Kavita and her husband had shifted from appellant No. 2's house around Dassera. Therefore, there was no question of appellant No. 2 participating in inflicting any cruelty upon the victim so as to provoke the victim to commit suicide. He placed reliance on a number of decisions to support his contention that abetment could not be inferred in such circumstances. 19. In the case Chanchal Kumari and others vs. Union Territory, Chandigarh, reported in AIR 1986 SC 752 , the Supreme Court held that since there was no dependable evidence in regard to actual abetment by any of the accused, they were entitled to be acquitted of offence punishable under section 306 of the Penal Code. 20. In the case of Swamy Prahaladdas vs. State of M. P. and another, reported in 1995 Supp (3) SCC 438, the appellant was stated to be paramour of one Sushilabai. The deceased was the other suitor. Due to sexual jealousy, the appellant had allegedly told the deceased to go and die. The deceased went home in a dejected mood and thereafter committed suicide. The Court held that the appellant could not be held guilty of offence of abetment to commit suicide. 21. In the case of Mahendra Singh and another vs. State of M. P., reported in 1996 CriLl. 894, the Apex Court held that mere allegations of harassment made by the deceased in her dying declaration are not sufficient to constitute offences punishable under section 498-A or 306 of the Penal Code. 22. 21. In the case of Mahendra Singh and another vs. State of M. P., reported in 1996 CriLl. 894, the Apex Court held that mere allegations of harassment made by the deceased in her dying declaration are not sufficient to constitute offences punishable under section 498-A or 306 of the Penal Code. 22. The decision of this Court in the case of Shankar Mangelal Lokhande vs. State of Maharashtra, reported in 2000(3) Mh.L.J. 524 = (2001)1 DMC 30 may not be useful to the appellant, since in that case, the Court had upheld conviction of the accused for offence punishable under section 498-A of the Penal Code while setting aside the con-viction under section 306 of the Penal Code. The question as to whether the victim was subjected to cruelty simpliciter would have to be distinguished from the victim being subjected to cruelty which drove her to commit suicide. In the latter case, it would have to be proved that the victim was provoked to commit suicide by the ill-treatment meted out. The question of mens rea would obviously be there, but it would be difficult to infer that even though the victim committed suicide, the accused, by his act, did not intend such result. 23. The learned counsel for appellant No.2 also relied on a judgment in the case of Sanju @ San jay Singh Sangar vs. State of M. P., reported in (2002)1 DMC 773 (SC), where the Supreme Court held that on the facts the deceased was in great stress and depressed and that the suicide was not direct result of quarrel between deceased and appellant, as the deceased had come back to the house again. In that case, the victim was not wife of the accused, but brother-in-law of the accused. It would be difficult to draw parallel in the facts of the two cases. 24. The learned counsel for appellant No.2 also relied on the judgments of some other High Courts. However, it would not be necessary to refer to all of them, except judgment of Kerala High Court in the case of Cyriac vs. S. 1. of Police, reported in (2006) II CCR 439. The Kerala High Court had held that it was not enough if the acts of the accused persuaded the deceased to commit suicide. However, it would not be necessary to refer to all of them, except judgment of Kerala High Court in the case of Cyriac vs. S. 1. of Police, reported in (2006) II CCR 439. The Kerala High Court had held that it was not enough if the acts of the accused persuaded the deceased to commit suicide. The Court observed that it was not what the deceased felt, but what the accused intended by his act to be more important. There can no doubt about this proposition that what would be important is what the accused intended to happen. However, in the context of the facts of the present case, it would be difficult to infer that appellant No. 1 did not harbour a desire that the victim should remove herself from the appellant's life, by subjecting her to ill-treatment. 25. Since appellant No.1 and the victim had already shifted from appellant No. 2's house, it would be difficult to connect appellant No.2 to the victim's suicide, as rightly contended by the learned counsel for appellant No.2. In view of this, the conviction of appellant No.2 on the basis of allegation that appellant No.2 and appellant No.1 shared illicit relations cannot be sustained. 26. This takes me to the question of complicity of victim's husband appellant No.1. PW 8 PSI Jumde had stated that appellant No.1 had lodged an intimation at the Police Station as to the death of his wife in the same night. This had unfortunately not been proved. But the fact that appellant No.1 was aware of the death of his wife by drowning on the same night is material. In this context, the response of appellant No. 1 to Question No. 119 in his statement under section 313 of the Code of Criminal Procedure is material. He stated that he did not know anything as to his own wife Kavita fell in well on her own that he had not seen the incident. He stated that his wife had been to fetch water and fell as she slipped. Now if the accused had not seen the incident, then how he came to know that his wife had slipped while fetching water, is a mystery. He stated that his wife had been to fetch water and fell as she slipped. Now if the accused had not seen the incident, then how he came to know that his wife had slipped while fetching water, is a mystery. The learned Additional Public Prosecutor pointed out that the panchanama of spot at Exhibit 28 shows that the well had a two-feet high parapet wall and, therefore, it is difficult to believe that anybody would fall in the well by slipping in it. He further pointed out that the panchanama does not show presence of any bucket or rope to support the story that the victim had gone to fetch water from the well. The learned Additional Public Prosecutor submitted that the victim was with appellant No.1 and, therefore, appellant No.1 was the best person to state as to what happened to the victim or what provoked her to end her life. He pointed out that guilty mind of appellant No.' 1 has spoken in clear terms in cross-examination of the prosecution witnesses. It was suggested to PW 1 Mandabai that Kavita's mental condition was not good and that she had suicidal tendency, by suggesting that even if somebody scolded, Kavita would attempt to commit suicide. It was next suggested to this witness that Kavita was not married to appellant No. 1 of her own accord and, therefore, committed suicide. The witness had denied both these suggestions. These suggestions would show that appellant No. 1 wanted to hint at the possibility of victim committing suicide for reasons unconnected with the conduct of appellant No. 1. However, it is curious that in the very next paragraph in the cross-examination of PW 1 Mandabai, she stated that Kavita had told her that she will not commit suicide even if she is vexed to any extent by her in-laws. It was then suggested to the witness that Kavita had been to the well for fetching water and she slipped while fetching water. This suggestion too was denied by the witness. 27. It was also suggested to PW 2 Babarao that Kavita was married to appellant No.1 against her wish and that she was disappointed because appellant No.1 was driving matador and used to stay at other places on tour. This suggestion too was denied by the witness. 27. It was also suggested to PW 2 Babarao that Kavita was married to appellant No.1 against her wish and that she was disappointed because appellant No.1 was driving matador and used to stay at other places on tour. Thus, while attempting to make out a case that Kavita was fed up with her life for reasons unconnected with the conduct of appellant No.1, it was also suggested to this witness that Kavita had gone to fetch water and fell in the well. It was also suggested to PW 6 Indira that since Kavita was reluctant to marry appellant No. 1, appellant No.1 was falsely implicated. This suggestion really makes no sense. 28. The learned counsel for appellant No.1 submitted that no neighbour of the parties has been examined by the prosecution at the time of trial. There is no evidence to show that as to what led the victim to jump in the well. He submitted that the entire story about harassment of the victim is an afterthought and grossly insufficient to conclude that appellant No.1 was the cause of death of the victim. 29. The learned Additional Public Prosecutor submitted that the conduct of the appellant would be extremely material. It is not necessary that a person must by actual words abet suicide of another. He submitted that the appellant and his wife were the only two persons in the house. The panchanama of spot at Exhibit 28 shows that there was absolutely no force in the suggestion that the victim had gone to fetch water from the well. The panchanama also rules out possibility of anybody fetching water slipping in the well. The learned Additional Public Prosecutor, therefore, submitted that in the absence of any evidence to show that the victim had such suicidal tendency or such reason for committing suicide, the cause of victim's committing suicide, would have to be found in the conduct of appellant No. 1 himself. He submitted that when appellant No. 1 relies on the fact that the victim had refused to return with his father, appellant No.1 rules out any tendency to commit suicide on the part of the victim. He submitted that when appellant No. 1 relies on the fact that the victim had refused to return with his father, appellant No.1 rules out any tendency to commit suicide on the part of the victim. This refusal to return with the father, telling him that she would come at Diwali, which was to soon come, would indicate that the victim had a robust desire to make her marriage work and also to live. In this context, the learned Additional Public Prosecutor submitted that suicide by the victim shortly after her father's visit would have to be attributed to such conduct on the part of appellant No.1, which left the victim with no alternative but to put an end to her life. He, therefore, submitted that the conduct of appellant No.1 would squarely fall under Explanation (a) to section 498A of the Penal Code. He submitted that the victim is shown to have committed suicide within seven months of her marriage. The victim must be held to have been subjected to cruelty, since she was driven to commit suicide on the incidental night. Therefore, presumption under section 113A of the Evidence Act would lead to an inference that such suicide had been abetted by appellant No.1. The learned Additional Public Prosecutor next submitted that the victim's suicide on account of her being subjected to cruelty is attributable to non-fulfillment of unlawful demands for dowry and, therefore, presumption under section 113B of the Evidence Act would be attracted, leading to appellant No.1's conviction for offence punishable under section 304B of the Penal Code. He, therefore, submitted that the learned Trial Judge rightly convicted appellant No. 1 for the aforesaid offences. 30. After carefully considering the rival contentions, it is clear that the victim had died within a year of her marriage by drowning in the well, which had a parapet wall and where no implement of drawing water was found, ruling out accidental death. Suggestions to the prosecution witnesses on the part of appellant No. 1 would show the appellant No. 1 was trying to make out a case that the victim was not happy with her marriage, indicating that the victim had indeed committed suicide. The evidence of the prosecution witnesses, particularly the parents of the victim, about unlawful demands, would have to be believed, since it is consistent and not contradictory. The evidence of the prosecution witnesses, particularly the parents of the victim, about unlawful demands, would have to be believed, since it is consistent and not contradictory. The demand of cooler, T. V. set and cash of Rs. 25,000/- had been referred to even in the FIR. The victim and appellant No.1 were the only two persons in the matrimonial home when the victim went to the well and jumped in it. The appellant has no explanation as to what preceded suicide by the victim. It would be impermissible to expect the evidence of neighbours, since it is not always that the victim would create a scene and attract neighbours attention. As rightly pointed out by the learned Additional Public Prosecutor, the nature of the victim is depicted from the fact that she refused to go along with her father, because she wanted to make marriage work after the parties had shifted from the house of appellant No.2. Such a girl, according to the learned Additional Public Prosecutor, would not have created a scene or attracted neighbours' attention and would have rather preferred to suffer in silence. Therefore, in view of the contradictory suggestions made to the prosecution witnesses in course of cross-examination and the total ignorance feigned by appellant No. 1 in reply to Question No. 119 in his statement under section 313 of the Code of Criminal Procedure, it would be necessary to infer that appellant No.1' s guilty mind led to such suggestions and such answers. In view of the presumptions under sections 113A and 113B of the Indian Evidence Act and the definition of "cruelty" in Explanation (a) to section 498A of the Penal Code, it must be held that the learned Trial Judge rightly convicted appellant No. 1 for offences punishable under sections 498A, 306 and 304B of the Penal Code. 31. The learned counsel for appellant No. 1 submitted that appellant No. 1 had already spent one year in jail and has possibly settled down in his second lease of married life. This cannot be relevant for imposing any reduced sentence upon appellant No.1, given the fact that because of his provocation and abetment emanating from unlawful demands, a young life has been extinguished within a few months of marriage. This cannot be relevant for imposing any reduced sentence upon appellant No.1, given the fact that because of his provocation and abetment emanating from unlawful demands, a young life has been extinguished within a few months of marriage. The sentence of simple imprisonment for seven years imposed for offence punishable under section 304B of the Penal Code, therefore, does not call for any interference. Since the sentence imposed for offences punishable under sections 498A and 306 of the Penal Code are directed to run concurrently, their extent does not matter. In view of this, the following order is passed : 32. The appeal is partly allowed. The conviction of appellant No. 2 Asha Dnyaneshwar Pasare for offences punishable under sections 498A and 306 of the Penal Code and sentences of simple imprisonment for two years and fine of rupees one thousand and simple imprisonment for five years and fine of rupees one thousand imposed upon her on two counts, are set aside. The appeal, insofar as it relates to conviction and sentence imposed upon appellant No. 1 Chintaman Pandurang Kapse is concerned, is dismissed. The conviction and sentence imposed upon him are maintained. If appellant No. 1 does not surrender to his bail within a period of six weeks, the learned Trial Judge shall take steps to have the appellant arrested and sentence executed. Fine deposited by appellant No.2 shall be refunded to her. Appeal partly allowed.