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2015 DIGILAW 388 (BOM)

Mohd. Rafique v. State of Maharashtra

2015-02-09

S.B.SHUKRE

body2015
Judgment: 1. This is an appeal preferred against the judgment and order passed on 3rd November, 1999, in Sessions Trial No.261/1993 by 2nd Additional Sessions Judge, Nagpur thereby convicting the appellant of the offences punishable under Sections 498-A and 306 of the Indian Penal Code and sentencing him to suffer different sentences. 2. Briefly stated, the facts of the case are as under: (i) Deceased Mumtaj was the wife of the appellant whose marriage with the appellant was performed on 21st May 1989. After the marriage, deceased Mumtaj started residing with her husband at Somwari Quarter, Nagpur. Initially, she was treated well by the appellant and after few days of marriage her ill-treatment at the hands of her husband began. It is alleged that the appellant used to ask deceased Mumtaj to bring an amount of Rs.20,000/- and also a gold ring from her father and on expressing her inability to meet the illegal demand, the appellant used to subject deceased Mumtaj to beating. About 10 months prior to the incident, which took place on 18.6.1991, the appellant had reached his deceased wife at her parental home situated in Hasanbagh area of Nagpur. A few days before the incident, however, an effort was made by the appellant for bringing her back to his house and, therefore, a meeting was arranged at the house of father of the deceased to work out the modalities for the same. This meeting was attended not only by the appellant and his father in law, but also some other persons from both sides. In this meeting, it was decided to send back deceased Mumtaj to the house of the appellant. Deceased Mumtaj was also ready on her part to resume co-habitation with her husband. Therefore, deceased Mumtaj went along with the appellant to reside in the matrimonial home. But, it appears that the relations between the appellant and deceased Mumtaj had not been improved even then. (ii) In the morning of 18.6.1991, deceased Mumtaj sustained burn injuries. She was initially treated by one private doctor at her home itself. However, on that day at about 6.30 p.m. in the evening, her physical condition got worsened and she fell unconsciousness. She was, therefore, taken to Government Medical College and Hospital, Nagpur for management of her injuries, by the appellant. She was initially treated by one private doctor at her home itself. However, on that day at about 6.30 p.m. in the evening, her physical condition got worsened and she fell unconsciousness. She was, therefore, taken to Government Medical College and Hospital, Nagpur for management of her injuries, by the appellant. She was brought to Government Medical College and Hospital at about 6.40 p.m. on that day and upon examination by the doctor at the hospital, it was found that deceased Mumtaj had died already. Therefore, Police were informed and first accidental death report came to be lodged. It was stated by the appellant that the deceased Mumtaj had sustained burn injuries due to flaring up of the kerosene stove while she was heating water on the stove. However, on 20th June, 1991, father of the deceased Mumtaj lodged a report against the appellant alleging that the appellant instigated and abetted deceased Mumtaj to commit suicide, by subjecting her to cruelty. Therefore, offences punishable under Sections 498A and 306 of the Indian Penal Code were registered against the appellant and further investigation was carried out. After completion of investigation, a charge sheet for the said offences came to be filed against the appellant and he was tried by 2nd Additional Sessions Judge, Nagpur accordingly. (iii) On merits of the case, learned Additional Sessions Judge, Nagpur found that the offences punishable under Sections 498-A and 306 of the Indian Penal Code both were proved against the appellant and, therefore, he convicted and sentenced the appellant to suffer rigorous imprisonment for two years and four years respectively, together with fine of Rs.500/- for each of the offences. He also awarded further rigorous imprisonment of one month in default of payment of fine amount. The judgment and order were passed on 3.11.1999. The appellant challenged the same and this is how the present appellant is before this Court in this appeal. (iv) This appeal has been filed by the appellant and yet, the appellant has chosen not to remain present. By a detailed order passed on 21st January, 2015, this Court found that the appellant-accused was avoiding hearing of the appeal, but in such a situation, the Court would not be rendered powerless. (iv) This appeal has been filed by the appellant and yet, the appellant has chosen not to remain present. By a detailed order passed on 21st January, 2015, this Court found that the appellant-accused was avoiding hearing of the appeal, but in such a situation, the Court would not be rendered powerless. Therefore, following the law laid down by the Hon'ble Apex Court in the case of BaniSingh and others vs. State of U.P. reported in (1996) 4 SCC 720 , this Court directed that the appeal be listed on board for final hearing on 5th February, 2015 and it has continued to be on the board of final hearing for today also. (v) The appellant and his Advocate are not present today and, therefore, this Court is proceeding to hear and finally dispose of appeal after hearing Mr. S.M. Bhagde, learned Additional Public Prosecutor for the respondent/State in pursuance of the order passed on 21st January, 2015. 3. I have heard Mr. S.M. Bhagde, learned Additional Public Prosecutor for the respondent/State. I have carefully gone through the impugned judgment and order and also the record of the case. 4. The prosecution case against the appellant is that soon before unnatural death of deceased Mumtaj, the appellant, who was her husband, subjected her to cruelty and ill-treatment and compelled her to take extreme step of commission of suicide and that the cruelty so meted out to her was on account of failure of deceased Mumtaj to meet the illegal demand of the appellant for bringing of Rs.20,000/- and gold ring from her father. 5. According to the appellant, the death of Mumtaj Begam was accidental and it was not a suicide. However, learned Additional Public Prosecutor for the respondent/State has invited my attention to the spot panchanama (Exh.24), C.A. reports (Exhs.53 and 54) and evidence of PW 3-Dr. Ashok Bhoyar as well as PW 6-Dr. Satishkumar Gupta in order to show that the defence taken by the appellant is without any basis and has not been probablised at all by the facts present on record. 6. Upon perusal of the circumstantial as well as oral evidence available in this case, which is in the nature of the spot panchanama vide Exh.24, C.A. reports vide Exhs.53 and 54, post mortem report vide Exh.52, evidence of PW 3-Dr. Ashok Bhoyar and PW 6-Dr. 6. Upon perusal of the circumstantial as well as oral evidence available in this case, which is in the nature of the spot panchanama vide Exh.24, C.A. reports vide Exhs.53 and 54, post mortem report vide Exh.52, evidence of PW 3-Dr. Ashok Bhoyar and PW 6-Dr. Satishkumar Gupta, I find that learned Additional Public Prosecutor for the respondent/State is right. The partly burnt saree and petticoat of deceased Mumtaj were seized from the spot, as per the spot panchanama (Exh.24) and were sent for chemical analysis as per the requisition letter vide Exh.34. C.A. reports vide Exhs.53 and 54 disclose that the kerosene residues were found on the partly burnt saree worn by deceased Mumtaj at the time of incident. Had it been the case of catching of fire by saree of Mumtaj due to sudden flaring up of kerosene stove while she was heating water, as per the defence of the appellant, kerosene residues would not have been found to be present on the partially burnt saree. In spot panchanama (vide Exh.24), it is noted that brass-stove filled with kerosene to half of it’s capacity was found at the spot. It does not note presence of any extra soot on any part of the brass stove. It also does not note presence of any utensil which was allegedly kept on the stove for its heating. The post mortem report also shows that deceased Mumtaj had sustained burn injuries on her lower limbs and the total percentage of the burns was of 30%. In the opinion of Dr. Satishkumar Gupta, deceased Mumtaj had died due to shock from the burn injuries. His evidence on this aspect of the case is unchallenged. All this evidence shows that deceased Mumtaj has died of burn injuries which were mainly on her lower limbs and the burn injuries were sustained by her, not on account of sudden flaring up of stove, but only due to sprinkling of kerosene oil on lower portion of her saree and then her being set on fire. If this were not so, as stated earlier, kerosene residues on her saree would not have been found and some extra soot on the stove and lying of the utensil used for heating water at the spot of incident would have been noticed. 7. If this were not so, as stated earlier, kerosene residues on her saree would not have been found and some extra soot on the stove and lying of the utensil used for heating water at the spot of incident would have been noticed. 7. Now, the question would be as to how deceased Mumtaj caught fire, whether in an accident or in a suicide attempt ? I must make it clear here that it is nobody’s case that death of Mumtaj was homicidal. The answer to the aforesaid question, as seen, from the evidence available on record, would be that deceased Mumtaj herself set her on fire. Reasons for this conclusion are stated in foregoing paragraphs. 8. After deceased Mumtaj sustained burn injuries, her husband, the appellant, had gone to Dr. Ashok Bhoyar to seek his help in the matter and on his being told about Mumtaj not feeling well, PW 3Dr. Ashok Bhoyar had visited house of the appellant and examined deceased Mumtaj. He found that deceased Mumtaj had sustained burn injuries and he also found her condition to be serious. He had, therefore, advised the appellant to take her to the hospital for further treatment, but it appears that the appellant did not pay any heed to the advice of the doctor and kept Mumtaj at his house. The important thing is that at that point of time, it is nobody’s case that deceased Mumtaj was not in a fit condition to speak anything. Therefore, if Mumtaj had caught fire accidentally, she would have said something about the same to Dr. Ashok Bhoyar, but she did not say anything about it and rather chose to maintain silence over the issue. Such conduct of deceased Mumtaj, in the facts and circumstances of the case, is only suggestive of an inference that she did not tell anything about burning incident to Dr. Ashok Bhoyar, due to the fact that she must have felt somewhat guilty about her act of self burning. In the circumstances, I find that Mumtaj’s death was suicidal and the case of accidental burning of deceased Mumtaj as sought to be put forward by the appellant is falsified by the circumstances present on record. 9. There is another reason for reaching the aforesaid conclusion. Had deceased Mumtaj sustained burn injuries accidentally, even the appellant would have narrated the incident to Dr. 9. There is another reason for reaching the aforesaid conclusion. Had deceased Mumtaj sustained burn injuries accidentally, even the appellant would have narrated the incident to Dr. Ashok Bhoyar when he met him and brought him home for treating injuries of deceased Mumtaj. PW 3Dr. Ashok Bhoyar, in examination in chief, deposed that he was told by the appellant that his wife was not feeling well and, therefore, he visited the house of the appellant and examined his wife. In the cross-examination taken on behalf of the appellant PW 3-Ashok Bhoyar stated that he was told by the appellant that his wife sustained burn injuries. But, he does not say that he was told by appellant that burn injuries were sustained because of his wife accidentally catching fire. If deceased Mumtaj had not committed suicide, it does not appear natural for the appellant, who was her husband, to not disclose the cause of burn injuries to a treating doctor, which as per his defence, was an accident. It also does not appear probable that in an accident burns case, a husband would act against medical advise inspite of being told about serious condition of his wife and need for her being taken to hospital for further treatment of her injuries. Such conduct of the appellant on the whole shows that no accident had taken place in his house and that sustaining of burn injuries by deceased Mumtaj was only as a result of setting herself on fire after pouring kerosene oil on her saree, because of serious differences with her husband, which differences made the appellant feel that his wife perhaps deserved what she did to herself and, therefore, there was no need to take it in a serious manner. In other words, he must have then felt, if his wife suffered or even died, it was only the consequence of her own deeds. If this were not so, the appellant would have certainly told PW 3-Ashok Bhoyar about the accident and would also have taken deceased Mumtaj immediately to hospital. 10. The evidence of prosecution also shows that deceased Mumtaj was taken to Government Medical College and Hospital in the evening of 18.6.1991 by the appellant, and before that she was taken to Dr. Bajaj, a private medical practitioner, who also had advised the appellant to immediately rush deceased Mumtaj to Medical College and Hospital for emergency treatment. 10. The evidence of prosecution also shows that deceased Mumtaj was taken to Government Medical College and Hospital in the evening of 18.6.1991 by the appellant, and before that she was taken to Dr. Bajaj, a private medical practitioner, who also had advised the appellant to immediately rush deceased Mumtaj to Medical College and Hospital for emergency treatment. This fact can be seen from the intimation about death given under Section 174 of Cr.P.C., vide Exh.23, by Police Head Constable Malbukar, B. No.1164. The fact of taking of deceased Mumtaj to Dr. Bajaj, has not been disputed by the appellant. Even at that time, it appears, the appellant did not disclose anything about sustaining of burn injuries by deceased Mumtaj accidentally to Dr. Bajaj. 11. In the circumstances, I find that the defence taken by the appellant that this was a case of accidental death appears to be an after thought on the part of the appellant who after the unexpected death of Mumtaj, thought that he might be held responsible for the death of his wife and, therefore, came out with the theory of accidental death, which theory has not been probablised at all by the evidence available on record. 12. For the reasons stated above, I find that deceased Mumtaj died due to suicide committed by her in the morning of 18.6.1991 at her matrimonial home and finding recorded by the learned Additional Sessions Judge in this regard appears to be logically arising from the evidence available on record and as such no interference with the said finding is called for. 13. Now, the question would be whether deceased Mumtaj was subjected to cruelty soon before her suicidal death by the appellant or not ? The evidence of PW 8-Sk. Bahadula-father of the deceased, PW 1-Gariba Shaikh Aalam and PW 5-Shaikh Abdul Salam, both neighbours of PW 8-Sk. Bahadula are most important in this regard. Consideration of evidence of these witnesses together would disclose that deceased Mumtaj Begam was subjected to cruelty and ill-treatment consistently by the appellant on account of her failure to meet illegal demand of the appellant to bring an amount of Rs.20,000/- and a gold ring from her father, soon before her death. 14. Bahadula are most important in this regard. Consideration of evidence of these witnesses together would disclose that deceased Mumtaj Begam was subjected to cruelty and ill-treatment consistently by the appellant on account of her failure to meet illegal demand of the appellant to bring an amount of Rs.20,000/- and a gold ring from her father, soon before her death. 14. PW 8-Sk Bahadula has stated as to how deceased Mumtaj used to be subjected to beating by the appellant because of her failure to meet the illegal demand of Rs.20,000/- and gold ring made by the appellant. He has further stated that about ten months prior to the incident, deceased Mumtaj was reached at his house by the appellant and few days before the incident, the appellant had come to his house and expressed his desire to take back deceased Mumtaj to his house. Deceased Mumtaj was also ready to join the company of her husband. Therefore, according to PW 8-Sk. Bahadula, a joint meeting was held at his house, which was attended by not only he himself and the appellant but also some other persons from both sides. Those other persons included PW 1-Gariba Shaikh Aalam, PW 4-Amir Hamza Shaikh Abdulla and PW 5-Shaikh Abdul Salam. PW 8-Sk. Bahadula has stated that in that meeting it was decided to send deceased Mumtaj along with her husband, the appellant and at that point of time, the appellant had remarked that in case of death of deceased Mumtaj, whether by burning or otherwise, he would not be held responsible in any manner. A few days later, deceased Mumtaj sustained burn injuries and died of those injuries. 15. This evidence of PW 8-Sk. Bahadula has gone unchallenged and no circumstances have appeared in his cross-examination in order to enable the Court to either reject his testimony or treat it with some measure of doubt. On the contrary, his testimony is well corroborated by F.I.R. vide Exh.58 and also evidence of PW 1-Gariba Shaikh Aalam, PW 4-Amir Hamza and PW 5-Shaikh Abdul Salam and, therefore, needs to be accepted and accordingly, I do accept it as reliable and trustworthy. On the contrary, his testimony is well corroborated by F.I.R. vide Exh.58 and also evidence of PW 1-Gariba Shaikh Aalam, PW 4-Amir Hamza and PW 5-Shaikh Abdul Salam and, therefore, needs to be accepted and accordingly, I do accept it as reliable and trustworthy. PW 1-Gariba Shaikh Aalam as well as PW 4-Amir Hamza and PW 5-Shaikh Abdul Salam have broadly corroborated the version of PW 8 and have also stated that while taking back daughter of PW 8 along with him, the appellant had passed a remark about possibility of death of Mumtaj Begam at his house. Even their evidence has gone unchallenged. 16. Thus, I find that the allegation of cruelty by subjecting deceased Mumtaj to beating on account of her failure to meet illegal demand of money and gold ring has been proved by the prosecution beyond reasonable doubt. This cruelty was meted out by the appellant to deceased Mumtaj, his wife, consistently sometime after solemnization of her marriage with him on 21st May 1989 till before her death on 18.6.1991. Although, there was an interregnum of about 10 months in which deceased Mumtaj was not residing with him and the physical part of the cruelty was not there, it’s mental effect, which was in the nature of trauma that deceased Mumtaj was brought to bear upon herself, always subsisted. Ultimately, believing in goodness of the appellant, deceased Mumtaj gave her consent to join his company again, but little did she know that her faith in her husband would be betrayed by him as he once again started subjecting deceased Mumtaj Begam to cruelty. In this way, I am of the view that there was consistent and continuous harassment and ill-treatment, a requirement of offence of cruelty as envisaged under Section 498A of the Indian Penal Code, of deceased Mumtaj at the hands of the appellant and, therefore, I find that the learned Additional Sessions Judge has rightly found the appellant guilty of offence punishable under Section 498-A of the Indian Penal Code. 17. The next question would be as to whether or not the cruelty meted out to deceased Mumtaj finally forced deceased Mumtaj to resort to an extreme step in her life by committing suicide. 18. 17. The next question would be as to whether or not the cruelty meted out to deceased Mumtaj finally forced deceased Mumtaj to resort to an extreme step in her life by committing suicide. 18. Admittedly, the death had occurred within seven years of the performance of marriage and, therefore, an occasion to examine if presumption under Section 113-A of the Indian Evidence Act, 1872, can be drawn or not, as rightly submitted by learned Additional Public Prosecution for the respondent/State, would arise in this case. In the case of RameshKumar vs. State of Chhatisgarh, reported in (2001) 9 SCC 618 ), Hon’ble Supreme Court has held that presumption under Section 113-A is rebuttable, is not mandatory and may be raised after examining all the pros and cons of the case. It further held that prosecution evidence must show that (i) the woman has committed suicide, (ii) such suicide has been committed within seven years from the date of marriage, and (iii) the woman should have been subjected to cruelty by her husband or his relatives. It also held that for drawing such a presumption what has to be seen is cause and effect relationship between the cruelty and suicide. Testing the prosecution evidence on the touchstone of these principles of law, I find that Section 113-A presumption can be drawn in this case. I have already found that deceased Mumtaj committed suicide and it was within seven of years of her marriage. There is also cogent prosecution evidence showing that deceased was subjected to constant cruelty of unbearable nature on account of her failure to meet appellant’s illegal demand which showed that harassment was the root cause which brought in the effect of suicide. Therefore, in my considered view, in this case Section 113-A of the Indian Evidence Act steps in and it can be presumed that appellant abetted commission of suicide by his wife. No evidence or no relevant material has been brought on record by the appellant to rebut this presumption. It is a presumption which indeed is rebutable. But, in order to take it’s effect away, it is necessary that some facts pointing out the possibility of some other reason being present for the deceased to take the extreme step of commission of suicide has to be brought on record. It is a presumption which indeed is rebutable. But, in order to take it’s effect away, it is necessary that some facts pointing out the possibility of some other reason being present for the deceased to take the extreme step of commission of suicide has to be brought on record. Such other reasons could be in the nature of deceased suffering from some incurable ailment or some depression or frustration of extreme nature or the deceased being hyper-sensitive and so on. But, no possibility of any of other reasons being the cause of suicide has been brought on record by the appellant. Therefore, I am of the view that learned Additional Sessions Judge, has rightly drawn the presumption under Section 113-A for holding that the appellant abetted commission of the suicide. 19. Apart from the presumption available under the law, the prosecution evidence, in my opinion,also independently establishes the fact that there was no other reason for the appellant to commit suicide than the appellant subjecting her to such harassment and ill-treatment as to cross the limits of tolerance and patience of the deceased. Admittedly, the deceased came from a family having poor financial background. Her father, a cycle-rickshaw puller, had no means to meet the illegal demand of the appellant. She had tried to escape from the situation that she was put in by the appellant by temporarily residing away from him. After giving some time to the appellant, she had thought that the appellant would have improved and, therefore, she willingly decided to join his company and did go along with him to reside at appellant's house at Somwari Quarters, Nagpur. Even then, it was found by her that the appellant did not mend his ways and continued to behave with her in the same manner as he did earlier with an intention to harass and torture her. In such a situation, a young Indian girl like deceased Mumtaj Begam would certainly find herself to be in a helpless situation and caught between the devil and the deep sea and, therefore, instead of troubling her father any more, she would decide to solve the problem by finishing her own life. In such a situation, a young Indian girl like deceased Mumtaj Begam would certainly find herself to be in a helpless situation and caught between the devil and the deep sea and, therefore, instead of troubling her father any more, she would decide to solve the problem by finishing her own life. This is how, deceased Mumtaj was compelled by the circumstances created by the appellant to put an end to her life, and this is what amounts to abetment by instigation as defined under Section 107 of the Indian Penal Code. To satisfy the requirement of instigation, it is not necessary that actual words must be used. What is necessary is that the conduct and circumstances created by the conduct should, with reasonable certainly, incite the consequence (see Rameshkumar supra). In the instant case, behaviour of the appellant towards his deceased wife and circumstances created by it were the cause and suicide was it’s effect. 20. For the afore-stated reasons, I find that the prosecution evidence, beyond reasonable doubt, points to the fact that the appellant intentionally instigated deceased Mumtaj, by his behaviour, to commit suicide and, therefore, has been rightly held to be guilty of the offence of abetment of suicide by deceased Mumtaj. 21. For all these reasons, I find that the learned Additional Sessions Judge, Nagpur has correctly appreciated the evidence available on record and has rightly found the appellant as guilty of the offences of cruelty and abetment of suicide punishable under Sections 498-A and 306 of the Indian Penal Code. Even on the point of sentence, I find that the learned Additional Sessions Judge, Nagpur has considered the individual circumstances of the accused and has taken a balanced view in awarding punishment to the appellant. Thus, completely agreeing with the findings recorded by the learned Additional Sessions Judge and the submissions of learned Additional Public Prosecutor for the respondent/State, I am of the view that this case calls for no interference with the impugned judgment and order. 22. In the result, the appeal deserves to be dismissed and is dismissed accordingly. 23. The trial Court is directed to execute the sentence in accordance with law.