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2012 DIGILAW 1769 (BOM)

Rafiq Amirhamaja Mujawar v. State of Maharashtra

2012-09-14

R.C.CHAVAN

body2012
JUDGMENT :- This appeal is directed against appellant - husband's conviction by the learned Additional Sessions Judge, Sangli for the offences punishable under Sections 201, 306 and 498A of the Indian Penal Code and sentence of rigorous imprisonment for one year with a fine of Rs.1000/-, rigorous imprisonment for two years with a fine of Rs.1500/- and rigorous imprisonment for one year for the three offences on conclusion of Session trial No.200 of 1994. 2. Facts which are material for deciding this appeal are as under:- The victim was the only child of the first informant. She was married to the appellant, who too is the only child of his parents. on 28th March, 1993. After the marriage, the victim went to reside with the appellant. It is the prosecution case that the appellant and his mother who was arrayed as accused No.2, were harassing and ill treating the victim in order to coerce the victim's parents to give a television set and also part with a plot of land. The television set was, in fact, given by the father. However, ill treatment to the victim allegedly continued. The victim delivered a male child on 14th June, 1994. On 10th July, 1994, victim's father had also visited her. On 14th July, 1994 the victim was found dead. A ligature mark was found around with the neck. The appellant informed the victim's relations but not her father. The dead body was buried without informing the parents. After arrival of father, he gave a report to the police and the dead body was exhumed on 17th July, 1994 under the orders of the Executive Magistrate and Tahsildar. After performing inquest, it was sent for post mortem examination. Autopsy Surgeon found that the victim died as a result of due to compression of neck. On completion of investigation, charge sheet was sent to the Court of Judicial Magistrate F. C., Miraj, who committed the case to the Court of Sessions at Sangli. 3. The learned Additional Sessions Judge to whom the case was made over, charged the appellant and co-accused for the offences punishable under Sections 201, 304B, 306, 498A read with Section 34 of the Indian Penal Code. Since they pleaded not guilty, they were put on trial at which the prosecution examined in all 11 witnesses in its attempt to bring home guilt of the accused persons. Since they pleaded not guilty, they were put on trial at which the prosecution examined in all 11 witnesses in its attempt to bring home guilt of the accused persons. After considering the prosecution evidence, in the light of defence of denial, the learned Judge acquitted accused No.2 Amirhamaj a Dastgir Mujawar but convicted and sentenced the appellant as aforementioned. Aggrieved thereby, the appellant is before this Court. 4. I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor for respondent No.1 - State. With the help of both the learned counsel I have gone through the evidence on record. PW-1 Shafik Abdul Buran is a panch on exhumation of the body and inquest panchanama. Though the learned counsel for the appellant sought to point out discrepancies in the evidence of Shafik and PW-4 Madhusudan Baburao Jadhav, in fact, Shafik agrees in cross examination that he had been to place at 2:30 p.m. to 3:00 p.m.. He proved inquest panchanama at Exhibit No.10. PW-4 Madhusudan Baburao Jadhav, Executive Magistrate was present at the time of exhumation of the body. The learned counsel for the appellant submitted that Madhusudan Jadhav was actually not present at the time of drawal of the necessary panchanamas and was sitting in his jeep as stated in his cross examination. Madhusudan Jadhav had stated that after exhumation he was sitting his jeep. It does not mean that Madhusudan Jadhav was not present at the time of exhumation or procedure which was carried out at the burial ground. PW-3 Kishor Ramchandra Patil, who proved photographs at Exhibit Nos.14, 15 and 16 drawn at the time of exhumation. PW-2 Maruti Sitaram Pawar is a panch at the spot panchanama drawn up vide Exhibit No.12. 5. PW-5 Mohammad Ismail Ashtekar is the victim's father and PW-6 Bismilla Mohammad Ashtekar is the victim's mother. They state that the victim reported to them that the appellant was demanding Television set and a plot of land at village Malgaon, Taluka: Miraj, District-Sangli and used to ill treat and harass the victim to have those demands fulfilled. It seems from the evidence of PW-5 Mohammad Ismail Ashtekar that television set had, in fact, been purchased and was given to the appellant. It seems from the evidence of PW-5 Mohammad Ismail Ashtekar that television set had, in fact, been purchased and was given to the appellant. He states about 810 months after the marriage, the appellant and the victim had come to his house and expressed desire to stay with him but he had sent them back stating that the appellant was the only son of their parents and therefore, it would not be proper to have the appellant in PW-5's house. This is alleged to have annoyed the appellant. The evidence of the parents shows that the victim was not well during her pregnancy and in fact, PW-6 Bismilla Ashtekar had stayed at the house of the appellant for about a month before the victim was to deliver a child. PW-5 Mohammad Ismail Ashtekar stated that they loved their daughter very much and therefore, whenever the victim was annoyed when anything against her desire took place, she used to even beat the parents. Such was the temper of the victim. The parents proved three letters received by them. Exhibit Nos.20 and 21 are the Post Cards dated 7th May, 1994 i. e. just before the delivery of victim's child on 14th June, 1994. Exhibit No.22 is the letter dated 16th November, 1993 in Marathi where the victim had stated that the appellants were harassing her and that therefore, her father should come to visit her along with maternal uncle on sight of the letter, otherwise the victim would not be seen alive. 6. PW-7 Dastgir Nabhi Mulla is the mediator in settlement of marriage and relations of the parties. He too states that the victim reported to him about harassment at the hand of the appellants. 7. PW-8 Dr. Gopal Tammaji Kulkarni is the family physician to whom the victim was first taken on 14th July, 1994 at 10:30 a.m. He found that her condition was serious therefore, advised the appellant to take her to Dr. Arjun Govind Sakekar, who was examined as PW-9. Dr. Arjun Sakekar stated that the victim ~as brought dead at his hospital and he found that there were ligature marks on the neck of the dead body. Though police station was just across the road, he did not bother to inform the police. PW-11 Dr. Arjun Govind Sakekar, who was examined as PW-9. Dr. Arjun Sakekar stated that the victim ~as brought dead at his hospital and he found that there were ligature marks on the neck of the dead body. Though police station was just across the road, he did not bother to inform the police. PW-11 Dr. Gulabsingh Ramsing Rajput conducted post mortem• examination and had stated that he found that cause of death was asphyxia due to compression of neck. Dr. Gulabsingh Rajput categorically stated that the injuries observed by him were ante mortem. It was sought to be suggested that in the process of burial amongst muslims, since body is lowered after tying a rope to the neck, waist and legs, injuries observed to the neck might have occurred. However, Dr. Gulabsingh Rajput is categorical and submitted that the injuries were ante mortem and not post mortem. 8. PW-10 PSI Mohammad Hanif Ibrahim Shaikh conducted initial part of the investigation and it is the grievance of the learned counsel for the appellant that the investigating officer, who conducted most part of the investigation was not examined before the trial Court. 9. I have considered the entire evidence with the help of both the learned counsel. The learned counsel for the appellant submitted that except for the word of victim's parents and PW-7 Dastgir Mulla that the victim was harassed, there is nothing to show that the victim was subjected to any cruelty as defined in the explanation to Section 498A of the Indian Penal Code. The learned counsel for the appellant submitted, and rightly in my view, that the letter at Exhibit No.22 is irrelevant, as far as ascertainment of ill treatment or cause of death is concerned. This letter is dated 16th November, 1993 where after much water had flown in the matrimonial life of the parties. In any case, it is, indeed, strange that the victim wrote to her parents a letter in Marathi when other two letters written by her are in Hindi. The letters at Exhibit Nos.20 and 21 are both Post Cards dated 7th May, 1994. They too make interesting reading. In one of those Post Cards at Exhibit No.20, the victim had stated that the object of writing a letter was that she was not permitted to write a letter to her parents. Yet she was writing a letter. The letters at Exhibit Nos.20 and 21 are both Post Cards dated 7th May, 1994. They too make interesting reading. In one of those Post Cards at Exhibit No.20, the victim had stated that the object of writing a letter was that she was not permitted to write a letter to her parents. Yet she was writing a letter. In the second Post Card of the same date, the victim stated that the object of writing a letter was that, since the father left, she had not received any letter and father had not come with maternal uncle. The learned APP submitted that a reference in these letters to the victim's fate shows that the victim was under ill treatment. Now, as rightly pointed out by the learned counsel for the appellant the victim might have said so because she was not well during the pregnancy. The reference to her suffering need not necessarily be attributed to any ill-treatment on the part of the appellant. In my view, since the victim had written two letters, if the victim really wanted to convey that she was suffering from any ill treatment at the hand of the appellant, she could have explicitly stated so. In any case, a wife may be unhappy on account of several causes and may lose faith because of her unhappiness which need not necessarily be referable to acts on the part of the husband. Therefore, none of the three letters would indicate that the appellant was cause of miseries of the victim. 10. PW-6 Bismilla Ashtekar has categorically stated that because her daughter was not well, she was staying with her daughter during the last month of her pregnancy. After the delivery of child on 14th June, 1994, PW-5 Mohammad Ashtekar had also visited the victim on 10th July, 1994. If there was any ill treatment till that date, this could have been reported either to the police or to some other relations. In fact, after birth of a child normally atmosphere in the family would be happy. If the victim was still unwell after the delivery, that need not be attributed to any ill treatment on the part of the appellants. PW-6 Bismilla Ashtekar has stated that her daughter was taken for treatment to hospital by the appellant. PW6 Bismilla Ashtekar had also stated that the victim used to have convulsions. If the victim was still unwell after the delivery, that need not be attributed to any ill treatment on the part of the appellants. PW-6 Bismilla Ashtekar has stated that her daughter was taken for treatment to hospital by the appellant. PW6 Bismilla Ashtekar had also stated that the victim used to have convulsions. Therefore, it may be that she was depressed on that count. 11. The learned counsel for the appellant submitted that it is due to these convulsions the victim met with her death. He submitted that finding of ligature marks by Dr. Gulabsingh Rajput had to be rejected because Dr. Arjun Sakekar had not informed the police though the police station was just across his road. He submitted that findings by the Autopsy Surgeon can be reconciled with the method of burial amongst Muslims and therefore, according to him, the victim died a natural death and not on account of ill treatment which she suffered and this natural death has been given colour of unnatural death by suicide. These contentions have to be rejected because had the victim died of some disease or was suffering from some convulsions which made her fall down, there would have been some other injury noticed by PW-8 Dr. Gopal Kulkarni or PW-9 Dr. Arjun Sakekar. There is absolutely no reason for Dr. Arjun Sakekar to state that there were ligature marks noticed by him on the victim's neck and there would be no reason for PW-11 Dr. Gulabsingh Rajput to state that the injuries observed on the neck of the victim were ante mortem. It is possible that the victim committed suicide because of the depression which she was suffering from after the delivery which may have no relation to any ill treatment, because the evidence about ill treatment is unreliable. It is possible that On noticing that the victim had committed suicide, out of panic, the appellant preceded to give the victim burial, since the impression in the society in case of death of any bride is that it entails serious penal consequences. It is, this wrong of the appellant which led the learned trial Judge to hold the appellant guilty for the offence punishable under Section 201 of the Indian Penal Code, though the conviction of the appellant for the offences punishable under Sections 306, 498A is not supported by evidence about ill treatment or abetment to commit suicide. It is, this wrong of the appellant which led the learned trial Judge to hold the appellant guilty for the offence punishable under Section 201 of the Indian Penal Code, though the conviction of the appellant for the offences punishable under Sections 306, 498A is not supported by evidence about ill treatment or abetment to commit suicide. 12. In view of this, the appeal would have to be partly allowed. Conviction of the appellant for the offences punishable under Sections 306 and 498A and sentences imposed on those counts are set aside. Conviction of the appellant for the offence punishable under Section 201 of the Indian Penal Code and the sentence imposed on those counts is maintained. The appellant shall surrender to his bail to suffer that sentence within a period of six weeks. Appeal partly allowed.