Sahebrao
& Anr Vs. State of Maharashtra [2006] Insc 270 (3 May 2006)
S.B.
Sinha & P.P. Naolekar P.P. Naolekar, J.
The
accused appellants Sahebrao (A-1) and Bhausaheb (A-2) were tried along with
their mother Shanti Bai (A-3) for committing offences under Sections 304-B and
498-A of the Indian Penal Code (IPC). The judgment dated 06-06-1992 by the
Additional Sessions Judge, Aurangabad found A-1 and A-2 guilty under Sections
306 and 498-A, IPC and sentenced them to undergo rigorous imprisonment for
three years and fine of Rs. 500/- each, in default, rigorous imprisonment for
three months under Section 306 IPC. No separate sentence was passed under
Section 498-A, IPC.
A-3
was acquitted. Being aggrieved by the judgment of the trial Court, the accused
appellants filed an appeal before Aurangabad Bench of the Bombay High Court.
The High Court by its order dated 31-01- 2005 dismissed the appeal and
confirmed the sentence passed by the trial Court. That is how the appellants
are before us in this appeal.
The
relevant facts deduced from the evidence are that the marriage of
accused-appellant A-2, resident of Village Babulkheda, and deceasedSangita,
daughter of the complainant-Ramrao Laxman Darekar (PW-1), took place on 13-05-1990 at Village Pathri.
The
distance between Village Pathri and Babulkheda was 15 Kms.
Just
after the marriage, A-2 insisted for a tape recorder. PW-1 persuaded that the
tape recorder would be given to him in due course of time. Three days after the
marriage, the elder son of PW-1, Sudam (PW-3) along with his maternal uncle, Karbhari
Vithal Jadavh (PW-4) went to village Babulkheda to take the deceased back to
Village Pathri. On return, PW-3 told his father PW-1 that elder brother of A-2,
accusedappellant Sahebrao (A-1) was demanding additional dowry amount of Rs.
10,000/- as the dowry paid at the time of marriage was not as per their status
and A-2 was insisting for a tape recorder. The deceased stayed with her father
for 5-6 days and thereafter, Ambadas-brother of A-2, took her to Village Babulkheda.
Ambadas on return told PW-1 that A-1 was demanding Rs.10,000/- and A-2 was
insisting for a tape recorder. About 2-3 days later, PW-1 went to his
daughter's matrimonial home. She told him that A-1 and A-2 were troubling her
for an amount of Rs. 10,000/- and a tape recorder. PW-1 though expressed his
inability to pay the amount, sent PW-3 to Aurangabad for purchasing the tape recorder.
After
5-6 days, PW-3 and PW-4 went to the matrimonial home of Sangita, gave the tape
recorder to the accused persons and took her to her parent's place at Village Pathari.
After a week, Mansub- younger brother of A-2, came to the house of PW-1 to take
her back to Village Babulkheda and informed him that A-1 had demanded an amount
of Rs. 10,000/- and the deceased would not accompany him unless the amount is
given. He also informed PW-1 that A-1 would get angry if the amount was not
paid. PW-1 somehow managed to send the deceased to her matrimonial home along
with Mansub. In the month of 'Jaistha', when PW-1 went to see his daughter,
accused persons started questioning him as to why he had not paid the amount
and asked him to take his daughter back. The deceased was taken back by PW-1
and she stayed at her maiden home for a month. Mansub, once again, came to take
her back to the matrimonial home. This time also, Mansub, demanded the
additional dowry of Rs. 10,000/-. In September 1990 the deceased came back to
her father's place and on reaching there she started weeping loudly and told
PW-1 and her mother that she was beaten by the accused persons and pointed out
the marks of beating on her back and requested PW-1 not to send her back to
Village Babulkheda.
However,
in the hope that situation would improve, PW-1 left his reluctant daughter to
the matrimonial home on 06-09-1990. That time also A-2 told him that
since the amount was not given PW-1 should take back his daughter. While
returning back to his village on 07-09-1990, the deceased daughter met him on the way and told him that it would be
very difficult for her to stay and also that he might not see her again.
On 08-09-1990, the cousin brother of A-2 informed PW-1 that his
daughter was ill. PW-1 along with others, went to the house of the accused
persons at about 1.00
P.M. There he saw his
daughter dead and no one from the family of her in-laws was present in the
house. On receipt of the information of the incident, the police registered a
case of accidental death. The police made inquiry from PW-1 but he told them
that his mental condition is not good and that he would lodge the complaint
afterwards. PW-1 lodged the complaint against the accused-appellants on 09-09-1990 at 7.30 P.M.,
giving the detailed narration of facts .
Dr. Milind
Kulkarni, who conducted post-mortem over the dead body of the deceased, opined
that the cause of death was "cardio respiratory failure due to Endosalphan
poisoning".
Learned
counsel for the appellants has urged that the delay in filing the First
Information Report (FIR) is fatal to the case of prosecution. PW-1 came to know
about the death at about 1.00
P.M. on 08-09-1990, yet the complaint was made on 09-09-1990 at 7.30 P.M. It
indicates false implication of the accused-appellants.
The
settled principle of law of this Court is that delay in filing FIR by itself
cannot be a ground to doubt the prosecution case and discard it. The delay in
lodging the FIR would put the Court on its guard to search if any plausible
explanation has been offered and if offered whether it is satisfactory.
At
this juncture, we would like to quote the following passage from State of Himachal Pradesh v. Gian Chand, (2001) 6 SCC 71,
wherein this Court observed:
"Delay
in lodging the FIR cannot be used as a ritualistic formula for doubting the
prosecution case and discarding the same solely on the ground of delay in lodging
the first information report. Delay has the effect of putting the court on its
guard to search if any plausible explanation has been offered for the delay,
and if offered, whether it is satisfactory or not. If the prosecution fails to
satisfactorily explain the delay and there is a possibility of embellishment in
the prosecution version on account of such delay, the delay would be fatal to
the prosecution. However, if the delay is explained to the satisfaction of the
court, the delay cannot by itself be a ground for disbelieving and discarding
the entire prosecution case. " In Ravinder Kumar and Another v. State of Punjab, (2001) 7 SCC 690, this Court
observed:
"When
there is criticism on the ground that FIR in a case was delayed the court has
to look at the reason why there was such a delay. There can be a variety of
genuine causes for FIR lodgment to get delayed. Rural people might be ignorant
of the need for informing the police of a crime without any lapse of time. This
kind of unconversantness is not too uncommon among urban people also. They
might not immediately think of going to the police station. Another possibility
is due to lack to adequate transport facilities for the informers to reach the
police station. The third, which is a quite common bearing, is that the kith
and kin of the deceased might take some appreciable time to regain a certain
level of tranquillity of mind or sedativeness of temper for moving to the
police station for the purpose of furnishing the requisite information.
Yet
another cause is, the persons who are supposed to give such information
themselves could be so physically impaired that the police had to reach them on
getting some nebulous information about the incident.
We are
not providing an exhausting catalogue of instances which could cause delay in
lodging the FIR. Our effort is to try to point out that the stale demand made
in the criminal courts to treat the FIR vitiated merely on the ground of delay
in its lodgment cannot be approved as a legal corollary. In any case, where
there is delay in making the FIR the court is to look at the cause for it and
if such causes are not attributable to any effort to concoct a version no
consequence shall be attached to the mere delay in lodging the FIR.
[Vide Zahoor
v. State of U.P. (1991 Supp. (1) SCC 372; Tara Singh
v. State of Punjab (1991 Supp. (1) SCC 536); Jamna v.
State of U.P. (1994 Supp. (1) SCC 185). In Tara
Singh, the Court made the following observations: (SCC p.541, para 4) "4.
It is well settled that the delay in giving the FIR by itself cannot be a
ground to doubt the prosecution case. Knowing the Indian conditions as they are
we cannot expect these villagers to rush to the police station immediately
after the occurrence. Human nature as it is, the kith and kin who have
witnessed the occurrence cannot be expected to act mechanically with all the
promptitude in giving the report to the police. At times being grief-stricken
because of the calamity it may not immediately occur to them that they should
give a report. After all it is but natural in these circumstances for them to
take some time to go to the police station for giving the report. " In Amar
Singh v. Balwinder Singh & Ors., (2003) 2 SCC 518, this Court held that:
"There
is no hard and fast rule that any delay in lodging the FIR would automatically
render the prosecution case doubtful. It necessarily depends upon facts and
circumstances of each case whether there has been any such delay in lodging the
FIR which may cast doubt about the veracity of the prosecution case and for
this a host of circumstances like the condition of the first informant, the
nature of injuries sustained, the number of victims, the efforts made to
provide medical aid to them, the distance of the hospital and the police
station, etc. have to be taken into consideration. There is no mathematical
formula by which an inference may be drawn either way merely on account of
delay in lodging of the FIR.
"
It has come in evidence that when the father reached Village Babulkheda at
about 1.00 P.M. on 08-09-1990 he found his daughter dead and nobody was present in the
house. When the police came and made inquiries he said that he was shocked and
was not mentally fit to lodge the complaint and would do so later on.
After
finding her newly wedded daughter's dead body in her matrimonial home where he
had left her just before a day of incident, it was very natural for a father to
lose his tranquility of mind. Hence if such grief-stricken father had told the
police that he would give the complaint afterwards, it was not unnatural or
unusual. PW-6, who was posted at Shivoor Police Station, had also deposed about
the fact that when the father was asked about the incident he had stated that
he would lodge the complaint later on as he was disturbed. Two courts below
have found the explanation given by the prosecution to be satisfactory and
sufficient for a delay in complaint.
There
does not appear to be any reason to falsely implicate the accused-appellants
into the commission of crime. There is no allegation made in the complaint that
her daughter was done to death by the appellants. The complaint contains the
narration of facts and harassment during the period of marriage which took
place on 13-05-1990 and death of his daughter which
took place on 08-09-1990, from which an inference can be
drawn for the commission of the offence by the accused-appellants who were
allegedly consistently pestering for bringing money.
In the
circumstances, we do not find that simply because the FIR was lodged with some
delay, the allegations in the FIR are unworthy of credence or that PW-1 has
falsely implicated the accused appellants in the commission of crime.
It is
then submitted by Shri Sudhanshu Choudhary, learned counsel for the appellants
that the prosecution witnesses have only made general allegations against the
accused and there are no specification as to what kind of ill-treatment or
trouble was meted out to the deceased which led her to commit suicide. It would
also be submitted that there can be no question of cruelty towards the deceased
in the period of four months of her married life as she was in her in-laws
place hardly for about two months only, and further, conviction cannot be based
solely on the basis of the evidence of the interested witnesses.
In Pawan
Kumar and Others v. State of Haryana,
(1998) 3 SCC 309, this Court observed:
"cruelty
or harassment need not be physical. Even mental torture in a given case would
be a case of cruelty and harassment within the meaning of Sections 304-B and
498-A IPC.
Explanation
-
to Section 498-A
itself refers to both mental and physical cruelty. .. Again wilful conduct
means, conduct wilfully done; this may be inferred by direct or indirect
evidence which could be construed to be such. . A girl dreams of great days
ahead with hope and aspiration when entering into a marriage, and if from the
very next day the husband starts taunting her for not bringing dowry and
calling her ugly, there cannot be greater mental torture, harassment or cruelty
for bride. ." In Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619, this Court
specifically mentioned:
"The
concept of cruelty and its effect varies from individual to individual, also
depending upon the social and economic status to which such person belongs.
"Cruelty" for the purposes of constituting the offence under the
aforesaid section need not be physical. Even mental torture or abnormal
behavior may amount to cruelty and harassment in a given case." In Mohd. Hoshan
and Another v. State of A.P., (2002) 7 SCC 414, it was pointed out that:
"
The impact of complaints, accusations or taunts on a person amounting to
cruelty depends on various factors like the sensitivity of the individual
victim concerned, the social background, the environment, education etc.
Further
mental cruelty varies from person to person depending on the intensity of
sensitivity and the degree of courage or endurance to withstand such mental
cruelty. " The complainant (PW-1) has deposed that soon after the
performance of marriage, A-2 demanded a tape recorder. This statement is
corroborated by PW-3 and PW-4. PW-3 has deposed that when PW-4 along with him
went to Village Babulkheda 2-3 days after marriage of his sister, A-1 demanded
an additional amount of Rs.10,000/- and A-2 demanded a tape-recorder. This
found support from the statements of PW-1 and PW-4 without any variation.
Further
PW-1 in his evidence has specifically said that deceased had told him that the
accused persons on account of the non- fulfillment of their demands, troubled
her. There is evidence on record of PW-1 that when his daughter came back to
his place she started weeping and told the complainant about the harassment
inflicted upon her on account of non-payment of Rs.10,000/-. This found support
in the statements of PW-3 and PW-4. The evidence shows that even the demand was
made through the younger brother Mansub when he went to the place of the
complainant. PW-1 has further mentioned that in the end of jaishth month, he
went to village Babulkheda to see his daughter and was insulted by the accused
persons for not fulfilling their demand and they asked him to take her back to
village Pathri. It is said by PW-1 that just 8 days before the incident when
the deceased last visited her maiden home she told him that she was beaten and
also showed marks of beating on her body. She was weeping and requested him not
to send her back to village Babulkheda without satisfying the demand of the
accused persons. The evidence clearly establishes that the accused persons were
consistent in their demand regarding additional amount of Rs.10,000/- even
after their initial demand of tape recorder was fulfilled. The evidence clearly
establishes that the deceased was harassed at her matrimonial home and her
staying there had become miserable. The deceased on several occasions, within a
short span of four months of her marriage, informed her father that she was
being troubled by her husband and his elder brother. They also insulted and
taunted her father in her presence and asked PW-1 to take her back to his home
for his inability to fulfill their unlawful demand. The reluctance shown by the
deceased to go to her matrimonial home within a short period of her marriage is
indicative of the fact of the treatment given to her. At her matrimonial home,
she was harassed and constantly nagged for non-payment of additional amount by
her father. The facts clearly establish that husband and his elder brother
subjected the deceased to cruelty and their conviction under Section 498-A, IPC
is based on cogent reliable evidence.
The
appellants were also convicted under Section 306 IPC with the aid of the
presumption as to the abetment of suicide by a married woman under Section
113-A of the Indian Evidence Act, 1872. It is proved by the prosecution that Sangita
committed suicide within a period of seven years from the date of her marriage
and that her husband and his elder brother subjected her to cruelty. On the
basis of the evidence, it can be said that the cruel treatment meted out to the
deceased was of such a nature that it has driven the lady to commit suicide.
In Ramesh
Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 (para 22), this
Court held as under:
"Sections
498-A and 306 IPC are independent and constitute different offences.
Though,
depending on the facts and circumstances of an individual case, subjecting a
woman to cruelty may amount to an offence under Section 498-A and may also, if
a course of conduct amounting to cruelty is established leaving no other option
for the woman except to commit suicide, amount to abetment to commit suicide. ."
Similarly, in Hans Raj v. State of Haryana, (2004) 12 SCC 257 (in para 13), this Court opined that :
".
Under Section 113-A of the Indian Evidence Act, the prosecution has first to
establish that the woman concerned committed suicide within a period of seven
years from the date of her marriage and that her husband (in this case) had
subjected her to cruelty. Even if these facts are established the court is not
bound to presume that the suicide had been abetted by her husband. Section
113-A gives discretion to the court to raise such a presumption, having regard
to all the other circumstances of the case, which means that where the
allegation is of cruelty it must consider the nature of cruelty to which the
woman was subjected, having regard to the meaning of the word
"cruelty" in Section 498-A IPC. The mere fact that a woman committed
suicide within seven years of her marriage and that she had been subjected to
cruelty by her husband, does not automatically give rise to the presumption
that the suicide had been abetted by her husband. The court is required to look
into all the other circumstances of the case. One of the circumstances which has
to be considered by the court is whether the alleged cruelty was of such nature
as was likely to drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health of the woman. .." Neither any evidence was
led by the defence nor from the evidence placed on record by the prosecution,
we can draw a plausible, reasonable and trustworthy explanation to rebut the
presumption under Section 113-A of the Evidence Act. The prosecution has
sufficiently proved by cogent evidence that the accused-appellants by series of
acts and conduct created such a difficult and hostile environment for the
deceased that she was compelled to commit suicide. In the light of the
discussion in regard to the cruelty committed by the accused persons to the
deceased under Section 498-A, IPC, there is a direct and reasonable nexus with
the commission of suicide by the deceased with the act of cruelty to which the
deceased was subjected to by the accused-appellants.
For
the aforesaid reasons, we are of the view that the High Court has rightly
upheld the conviction of the accused-appellants under Section 306 and Section
498-A, IPC and we do not find any good or sufficient reason to take a different
view of the matter. The appeal is, therefore, dismissed.
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