Full Judgment
1. The appellant/original accused No.1(hereinafter referred to as the appellant) and oneMariyam Begum Shaikh Safi (original accused No.2) weretried by the learned 1st Ad-hoc Additional SessionsJudge, Wardha, in Sessions Trial No.151/1998 on thecharge of having committed the offences punishableunder Section 498-A and 306, read with Section 34 ofthe Indian Penal Code. The learned trial judge, videhis judgment and order dated 26.9.2001, acquittedMariyam Begum Shaikh Safi (original accused No.2) ofboth the aforesaid offences. However, he convicted theappellant for the offences punishable under Section498-A and 306 of the Indian Penal Code. For theoffence punishable under Section 498-A of the IndianPenal Code, the appellant has been sentenced to sufferR.I. for two years and to pay a fine of Rs.1000/-, indefault to suffer R.I. for three months, and for theoffence punishable under Section 306 of the IndianPenal Code, he is sentenced to suffer R.I. for fiveyears and to pay a fine of Rs.5000/-, in default tosuffer R.I. for one year. Both the substantivesentences, however, have been directed to runconcurrently. This order of conviction and sentence isunder challenge in this appeal.
2. Briefly stated, the case of the prosecutionis as follows :
The deceased Halima was the daughter of P.W.Hajrabi. After expiry of her first husband, thedeceased Halima married to the appellant- Shaikh Rashids/o Shaikh Khudabux, resident of Hinganghat, DistrictWardha, on 24.8.1997. The deceased Halima was blessedwith a son namely Shaharukh from her first husband.The appellant promised that he would maintain Shaharukhand, therefore, the marriage (Nikah) of the deceasedHalima took place with the appellant on 24.8.1997.Mariyam Begum (original accused No.2) is the sister ofthe appellant. She also resides at Hinganghat. Abouttwo months after the marriage, the deceased Halimafather, Shaikh Ramjan had been to her matrimonial hometo fetch her back to his house, but the appellantrefused to send her with him. Thereafter P.W.Hajrabi, the mother of the deceased Halima had been tothe house of the appellant to fetch the deceased Halimaback to her house on two occasions, but on both theoccasions, the appellant and his father refused to sendthe deceased Halima to her parental home. At thesecond time, when P.W. Hajrabi had been to thematrimonial home of deceased Halima, the deceasedHalima told her that her husband used to ask her tobring Rs. 500/- from her parents, and on nonfulfillment of the said demand, he used to ill-treatand harass her. At the fourth time, i.e. in the monthof March 1998, P.W. Hajrabi again went to the house ofdeceased Halima to fetch her back to her parental homealong with her sister-in-law Sugrabi Shaikh Hanif andone Hafiz Saheb Abdul Sattar Abdul Raheman. At thattime, the appellant, his sister Mariyam Begum (originalaccused No.2), his father Khudabux, his mother andbrother were present there. P.W. Hajrabi and herrelatives, who were accompanying her at that time,requested the appellant to send the deceased Halimawith them, but the appellant and his father refused tosend her back with them and threatened P.W. Hajrabisaying that Mari Chhodenge, Jinda Nahi Chhodenge,meaning thereby that they would not leave her alive butkill her and by saying so, they beat the deceasedHalima and, therefore, P.W. Hajrabi returned to herhouse along with deceased Halima on Shaharukh as the appellant was reluctant to maintain him.
3. On 12.5.1998, P.W. Hajrabi learnt from hernephew Mahebub Shaikh Hanif that Halima died. P.W.Hajrabi, therefore, went to Hinganghat along with herrelatives. On reaching there, she learnt that the deadbody of deceased Halima was found on the railway trackand it was buried after the last rites were performed.This happened before she reached there. On 12.5.1998,some persons, who saw the dead body of Halima onrailway track, informed the railway gateman about thesame. The railway gateman then informed his superiori.e., Station Superintendent, Hinganghat about it who,in turn, informed the P.S.O., Hinganghat about the sameon wireless, on the basis of which an accidental death(Marg No.0/98) came to be registered at Police Station,Hinganghat. During an enquiry, the police had preparedthe spot panchanama (Exhibit 32) as well as inquestpanchanama (Exhibit 33) and sent the dead body of thedeceased Halima to Cottage Hospital, Hinganghat, wherepost-mortem examination of her dead body was conductedby the Medical Officer, whose post-mortem report is atExhibit 46.
4. Thereafter, on 2.8.1998, P.W. Hajrabilodged her report (Exhibit 27) in the matter, on thebasis of which an offence came to be registered asCrime No.277/98, and the Police took up theinvestigation. In due course, the investigation wascompleted and both the accused came to becharge-sheeted for the aforesaid offences.
5. The learned trial Judge charged both theaccused for the offences under Sections 306 and 498-Aread with Section 34 of the India Penal Code, to whichthey pleaded not guilty. The defence of the accusedwas one of total denial and false implication. Insupport of its case, the prosecution examined only onewitness namely P.W. Hajrabi, the mother of thedeceased Halima. The accused did not lead any evidencein defence nor did they examine themselves on oath.The learned trial Judge, upon consideration of theevidence on record, found that the prosecution hadfailed to prove the charge against original accusedNo.2 Mariyam Begum and hence, the learned trial Judgeacquitted her of both the offences. He, however, foundthe charge in respect of both the aforesaid offencesestablished against the appellant and, therefore,proceeded to convict and sentence him as indicatedabove.
6. I have been taken through the oral evidenceon record. I have also gone through the statement ofthe appellant recorded under Section 313 of theCriminal Procedure Code and heard Shri J.A.Anthony, thelearned counsel for the appellant and Shri Doifode, thelearned A.P.P. for the respondent/State at length.
7. While assailing the impugned judgment, ShriAnthony, the learned counsel for the appellant firstlycontended that there was inordinate delay in lodgingthe F.I.R. According to him, the alleged incident tookplace on 11.5.1998 whereas the F.I.R. in the matterwas lodged by P.W. Hajrabi, the mother of the deceasedHalima on 2.8.1998 and since the said delay has notbeen properly and satisfactorily explained by theprosecution, it is a suspicious circumstance to betaken into consideration while judging the bonafides ofthe prosecution story as the delay may bring anycoloured version and concoction. According to ShriAnthony, learned counsel for the appellant, suchinordinate and unexplained delay casts a cloud ofsuspicion on the entire warp and woof of theprosecution story.
8. As against this, Shri Doifode, the learnedA.P.P. submitted that though apparently it seems thatthere was delay in lodging the F.I.R., in fact therewas no such delay. For this, he referred a case diaryand pointed out from the same that report in the matterwas in fact lodged by Shaikh Ramjan, the father of thedeceased Halima on 13.5.1998 i.e. about two days afterthe incident in question took place. Not only that butthe Police had recorded his statement on 17.5.1998,wherein he has stated in detail about the incident, butunfortunately the said Shaikh Ramjan could not beexamined by the prosecution as he was not alive at thetime when the matter was posted for recording ofevidence of the prosecution witness. A perusal of thecase diary does show that the deceased Shaikh Ramjanhad lodged report in the matter on 13.5.1998, butunfortunately the same could not be proved since thesaid Shaikh Ramjan died before his evidence could berecorded by the trial court. Moreover, the objectionregarding delay was neither raised by the defencecounsel before the trial court nor any question was putto P.W. Hajrabi in this regard during hercross-examination. Had P.W. Hajrabi been asked aboutthe delay, she could have explained it, but since shewas not asked about the same, it cannot be said thatthe prosecution has failed to explain the delay inlodging F.I.R. properly or that it can become a groundto doubt the prosecution case. Under the aforesaidcircumstances, in my opinion, the aforesaid delay inlodging the F.I.R. cannot be said to be fatal to theprosecution case. In view of this, I find no substancein the contention raised by the learned counsel for theappellant in this regard.
9. Nextly, it is contended by Shri Anthony, thelearned counsel for the appellant that in the instantcase, no independent witnesses, though available, wereexamined by the prosecution and, therefore, theevidence of P.W. Hajrabi, the mother of the deceasedHalima, being highly interested witness, could not havebeen relied upon by the learned trial judge to base theconviction of the appellant under Section 498-A and 306of the Indian Penal Code. According to Shri Anthony,even the evidence of P.W. Hajrabi is not sufficient toprove the cruelty as defined in Section 498-A of theIndian Penal Code and abetment of suicide ascontemplated under Section 306 of the Indian PenalCode. For this, he placed reliance on the decisions inState of Maharashtra Vs . Ashok Narayan Dandalwar : 2000 CriLJ4993 and Arvind Singh Vs . State of Bihar : 2001 CriLJ2556 .
10. As against this, Shri Doifode, the learnedA.P.P. submitted that the evidence of P.W. Hajrabiclearly goes to show that there was persistent demandfor money by the appellant, who, on non- fulfillment ofthe same, used to quarrel with the deceased Halima andharass her, about which, the deceased Halima told herbefore her death and this evidence, according to ShriDoifode, the learned A.P.P., is sufficient to prove thecruelty as well as abetment of suicide and, therefore,the learned trial judge has rightly convicted theappellant for the offences punishable under Section498-A and 306 of the Indian Penal Code. In support ofhis aforesaid submission, Shri Doifode, the learnedA.P.P. referred a decision of the Apex Court inPawankumar and others Vs . State of Haryana : 1998 CriLJ1144 .
11. In order to consider the rival contentionssought to be raised in this regard, it will beworthwhile to refer to the evidence of P.W. Hajrabi.P.W. Hajrabi has stated that the marriage of herdeceased daughter Halima took place with the appellantin the month of August 1997. According to her, afterthe marriage of deceased Halima, her husband ShaikhRamjan had been to the house of the appellant in orderto fetch the deceased Halima back to her parental home,but the appellant refused to send her with him.According to her, thereafter, she herself went to thehouse of the appellant on two occasions to fetch thedeceased Halima back to her house, but on both theoccasions, the appellant refused to send the deceasedHalima with her. It is further stated by her that atthe second time, when she had been to the house of theappellant, the deceased Halima told her that herhusband used to demand Rs.500/- from her and on nonfulfillment of the same, he used to beat and ill-treather. It is also stated by her that again at fourthtime, when she had been to the house of the appellantto fetch the deceased Halima back to her house, theappellant and his father threatened her by saying thatMari Chhodenge, Jinda Nahi Chhodenge, meaning therebythat they would not leave her alive but kill her and,therefore, she returned to her house and after somedays, she learnt about the death of the deceasedHalima. The appellant has not disputed the aforesaidvisits of P.W. Hajrabi and that of her husband to hishouse. What was suggested to this witness during hercross-examination on behalf of the appellant was thatdue to some domestic problems, such as, short of moneyor there being no other female member in the family ofthe appellant, the deceased Halima was not sent to herparental home. It was also suggested to this witnessduring her cross-examination that since the deceasedHalima was mentally retarded or mentally weak, shecommitted suicide by jumping from the running train.However, besides the said suggestion, there isabsolutely no material on record to show that thedeceased Halima was mentally weak. Not only that butby putting this suggestion to P.W. Hajrabi during hercross-examination, the appellant has admitted the factthat deceased Halima had committed suicide. Now, theevidence of P.W. Hajrabi to the effect that at thetime of her second visit to the house of the appellant,the deceased Halima told her that her husband used todemand Rs.500/- from her and on non-fulfillment of thesame, he used to beat her, having not been dislodgedduring her cross-examination, in my view, it cannot besaid that the evidence of P.W. Hajrabi is notsufficient to bring home the guilt to the accused,though no independent witness has been examined by theprosecution. The decisions (cited supra), and reliedupon by the learned counsel for the appellant, in myopinion, therefore, are not applicable to the facts ofthe present case.
12. In State of Maharashtra Vs . Ashok NarayanDandalwar : 2000 CriLJ4993 there was absolutelyno assertion in any of the letters produced by theprosecution, complaining against the husband either hewas making any demand at any point of time, orassaulted or tortured the wife with cruelty and,therefore, in that matter, the Apex Court held that itwas difficult to sustain the conviction of the accusedby relying upon the oral testimony of the youngerbrother of the deceased as his evidence does not findcorroboration from the letters produced by theprosecution on record.
13. In Arvind Singh Vs . State of Bihar : 2001 CriLJ2556 there was no sufficient evidence foreven the dowry demand, far less the evidence ofcruelty. No outside person was called to give evidenceand even the witnesses being in the category ofinterested witnesses, also restricted their version tothe sufferings of the burn injuries and the purporteddying declarations only. In view of this, the ApexCourt observed that such evidence would not besufficient to bring home the charge under Section 498-Aagainst the accused persons.
14. In the case-in-hand, the evidence of P.W.Hajrabi, as discussed above, clearly indicates that atthe second time, when she visited the house of thedeceased Halima, the deceased Halima told her that herhusband used to demand Rs.500/-, and on that count, heused to beat and ill-treat her, which fact has not beendislodged by the appellant though she wascross-examined on his behalf at sufficient length.Simply by giving a suggestion during thecross-examination to the effect that the appellant wasnot ill-treating or beating the deceased Halima, in myopinion, is not sufficient to dislodge her aforesaidversion in this regard. Not only that, but her versionthat the appellant and his father gave threats to herto the effect that they would not leave the deceasedHalima alive and would kill her has also not beendislodged during her cross-examination. This evidence,in my opinion, is sufficient to prove the cruelty asdefined in Section 498-A of the Indian Penal Code andwould also constitute the abetment for the commissionof suicide. Similar view has been taken by the ApexCourt in Pawankumar and others Vs . State of Haryana : 1998 CriLJ1144 , cited on behalf ofthe respondent/State.
15. Shri Doifode, the learned A.P.P. submittedthat the fact that the deceased Halima committedsuicide has not been disputed by the appellant since itwas suggested to P.W. Hajrabi during her crossexamination that the deceased Halima was mentally weakand, therefore, she jumped out from the running trainand committed suicide. According to him, the aforesaidfact clearly indicates that the death of the deceasedHalima was not accidental but suicidal. It is furthersubmitted by Shri Doifode, the learned A.P.P. that themarriage of the deceased Halima took place with theappellant on 24.8.97 and she committed suicide on11.5.1998 i.e. within a period of seven years from thedate of her marriage and the evidence of P.W. Hajrabishows that the appellant had subjected the deceasedHalima to cruelty and, therefore, under Section 113-Aof the Evidence Act, it can very well be presumed thatthe suicide committed by the deceased Halima wasabetted by the appellant. For this, Shri Doifode,learned A.P.P. placed reliance on the decision inPawan Kumar Vs . State of Haryana : 2001 CriLJ1679 . However, according to Shri Anthony, learnedcounsel for the appellant, the presumption underSection 113-A of the Evidence Act is not mandatory. Itis only permissive since the expression may presumesuggests so and, therefore, relying upon a decision inPachipala Laxmaiah Vs . State of Andhra Pradesh he argued that since there is nopositive evidence to indicate that the appellant hadinstigated the deceased Halima to commit suicide bydoing any act, he cannot be held guilty of the offencefor the abetment of suicide. Shri Anthony, learnedcounsel for the appellant was, however, unable to showthe non-existence of the aforesaid circumstancespointed out by Shri Doifode, learned A.P.P. and,therefore, in my opinion, considering the evidence ofP.W. Hajrabi that the deceased Halima was subjected tocruelty and that she committed suicide within sevenyears from the date of marriage, the presumption underSection 113-A of the Evidence Act i.e. it was theappellant who abetted the suicide committed by deceasedHalima can be raised. I am fortified in this view bythe decision of the Apex Court in : 2001 CriLJ1679 (cited supra on behalf of the respondent/State). Inthe said matter, the Apex Court observed in para Nos.8,9 and 11 as below :
'8.It is for reasons as above thatlearned Sessions Judge and the High Courtrefused to put any credence on thedefence of accidental burn injury. Ifthe accidental injury is ruled out andwhich we also feel the same way as thatof the other two Courts, the obviousconclusion would be suicidal death and onthat issue a further question arises asregards abetment. An analysis of theevidence of PW-3 Sudarshan Kumar (brotherof the deceased) depicts the behaviouralpattern received at the in-laws place byEkta. Occasional demand for money andfailure to meet the same, howeverresulted in beating up of the girl, Ekta,and as a matter of fact in September 1985she came back to the house of complainantall alone and this arrival, thecomplainant described as the aftermath oftorture which in fact did put her up in abad shape. Definite evidence isavailable on record that Ekta stayed withthe complainant for about 8 months and itis only thereafter the appellant No.2wanted to take back Ekta. The brother ofcomplainant PW -3 however, pointedlyrefused though after some persuasion andassurance of the father-in-law, in thepresence of some other members of thefamily, of proper treatment to thedaughter-in-law, the complainant agreedand Ekta thus went back to the in-lawsplace. Further evidence however, recordsthat there has been no improvement of thebehavioural pattern and she was subjectedto dowry torture as also various abusivetreatment by reason of not being able tobear a child. Incidentally, the twofamilies, namely the brides and grooms,related to each other and it is on thisscore that learned Senior Advocate insupport of the appeal contended thatdowry torture or even user of any abusivelanguage were all figments of imagination: The Evidence however tell a differentstory -- The torture continued andreached its peak in July 1985 by reasonof a booking of a Maruti Van by thecomplainant which was asked to bedelivered to the accused/appellant, onrefusal however, to comply with thedemand for delivery of the van by thecomplainant, the relationship was furtherestranged and PW-3 was given a warning asregards the events to follow and it isonly thereafter this incident of burninjury took place. A number of relativeswere also examined and their evidencecorroborate this state of affairs asnarrated by the complainant PW-3.
9.The learned Senior Advocate insupport of the appeal further contendedthat the factum of the hospitalization ofEkta in any event negates anyill-treatment or torture, but to betreated as a positive evidence ofgoodwill and affection. We are howeverunable to record our concurrencetherewith having due regard to theevidence and other materials available onrecord. There is thus preponderance ofevidence of dowry torture and it is onthis count that Section 113-A of theEvidence Act ought to be taken note of.Section 113-A reads as below :-
'113-A. Presumption as to abetmentof suicide by a married woman -- When thequestion is whether the commission ofsuicide by a woman had been abetted byher husband or any relative of herhusband and it is shown that she hadcommitted suicide within a period ofseven years from the date of her marriageand that her husband or such relative ofher husband had subjected her to cruelty,the Court may presume, having regard toall the other circumstances of the case,that such suicide had been abetted by thehusband or by such relative of herhusband.
Explanation:-- For the purposes ofthis Section, 'cruelty' shall have thesame meaning as in Section 498-A of theIndian Penal Code (45-1860).'
10...............................
11.On the wake of the aforesaid and byreason of the fact and the death of Ektawas caused by burn injuries only andhaving considered the nature of injuriesand since one cannot but rule out anaccidental death as discussed hereinbefore, the death of Ekta cannot but beattributed to be suicidal on the basis ofthe circumstances as is available onrecord with the situation existing andhaving regard to statutory presumption,this Court cannot but lend concurrence tothe opinion expressed by the High Court.The decisions of this Court as reliedupon by Mr.Sushil Kumar (viz. BalwinderSingh v. State of Punjab, : 1996 CriLJ883 ; Lakhjit Singh v. State of Punjab,1994 Sup. (1) SCC 173 : AIR(1993) SCW 2938 ; State of Punjab v. Gurdip Singh : (1996)7SCC163 ; Sharad BirdhichandSarda v. State of Maharashtra, : 1984 CriLJ1738 do not however, advancethe matter any further since each caseshall have to be dealt in the light ofits own factual sphere and judicialprecedents do not render any assistancewhatsoever by reason of the peculiarfactual matrix. In the facts of thematter under consideration, thecircumstances pointedly point out theaccused as a guilty person as abettorsand on the wake of the aforesaid theorder of conviction cannot be interferedwith. The High Court has been lenientenough in dealing with the appellantNos.2 and 3 by reducing the sentence, butsince there is no cross appeal, we do notwish to record any contra view as regardsthe sentence as well.'
In this view of the matter, in my opinion, the decisionin Pachipala Laxmaiah v. State of Andhra Pradesh001 Cri.L.J. 4063 cited on behalf of the appellantis of no avail to him in establishing his innocence.The submissions made by Shri Doifode, the learnedA.P.P. in this regard, therefore, need to be accepted.
16. So, having considered the evidence of P.W.Hajrabi and taking into consideration the circumstancesdiscussed above, I am of the considered view that thelearned 1st Ad-hoc Additional Sessions Judge hasrightly held the appellant guilty of the offencepunishable under Section 498-A and 306 of the IndianPenal Code and sentenced him as stated above. I,therefore, find no justification for any interferencewith the impugned order. The appeal, therefore, failsand is dismissed.