Rafiq Khalil Chand Gavandi and Others vs The State of Maharashtra

R.C. Chavan, J.—This appeal is directed against the conviction of the appellants by the learned Additional Sessions Judge, Sangli, for the offences punishable under Sections 498A and 306 of the Indian Penal Code, and sentence of simple imprisonment for one month each with fine of Rs. 1,000/- each or in default to suffer simple imprisonment for 15 days and further sentence of simple imprisonment for three months each with fine of Rs. 1,000/- each or in default simple imprisonment for 15 days, respectively, on the two counts, upon conclusion of Sessions trial No. 30 of 1994, before him. Facts which are material for deciding this appeal are as under:-

The victim married to appellant No. 1 Rafiq on 13th August, 1992. She resided with the appellants'' family at Kupwad, District Sangli. She herself was educated upto B.Com. and could write English well. She gave birth to a son in April, 1993 and had gone back to the appellant''s house. She committed suicide by hanging herself on the night of 21st November, 1993. However, she seems to have been immediately rescued and taken to hospital by appellant No. 1. husband. She however, succumbed to injuries on the next date. After about 8 to 10 days victim''s father P.W. 1 gave report, whereupon an offence was registered and investigation commenced. Police had already performed inquest and the postmortem on the dead body had already been conducted since the police had initially registered a case of offence punishable u/s 309 of the Indian penal Code, when the victim was found to have hanged herself. In the course of investigation, police recorded statement of witnesses and on completion of investigation sent the chargesheet to the court of learned Chief Judicial Magistrate, Sangli who committed The case to the Court of Sessions at Sangli.

The learned Additional Sessions Judge to whom the case was made over, charged the appellants i.e. husband and in-laws of the victim of offences punishable under Sections 498A, 304B, 306 read with 34 of the Indian penal Code. They pleaded not guilty to the charge framed and hence they were put on trial at which the prosecution examined only first informant-victim''s father, and the Investigating Officer. On behalf of defence, Police Head Constable Mansur Dhanavade was examined in respect of registering an offence u/s 309 of the Indian penal Code. After considering the prosecution evidence in the light of defence of false implication, the learned Judge convicted and sentenced the appellants as aforementioned. Aggrieved thereby the appellants are before this Court. Appellant No. 4 Shafiq Chand Gavandi expired during the pendency of appeal on 8th September, 2007, and nobody has prosecuted the appeal on his behalf. Therefore, the proceeding in so far as it relates to Shafiq Gavandi, abated.

I have heard learned counsel for the appellants and learned Additional Public Prosecutor for the State. With the help of both I have gone through the entire record placed before me.

Learned counsel for the appellant submits that the learned trial Judge had erred in convicting the appellants on the sole testimony of victim''s father who in fact gave report about 10 days after the incident. The learned APP submitted, and rightly in my view, that the delay in such crime can not to be the sole reason for rejecting the evidence of person who is in grief. In any case the police had already been informed of suicide by victim and therefore, as to whether victim''s father gave separate report a little thereafter, cannot be taken into consideration. The victim''s father had handed over to the investigating officer number of letters written by his late daughter. These letters are at Exh. Nos. 16 to 21.

Learned counsel for the appellants submitted that it was improper for the learned Judge to rely on those letters as there is nothing on record to show that the letters were in the hand writing of victim. Learned counsel for the appellants also submits that there was no report of hand writing expert called for. In any case according to learned counsel for the appellants none of these letters could be read in evidence as they do not point the circumstances which led the victim to commit suicide. Learned APP on the other hand submitted that the victim''s father being the best witness to know the handwriting of victim, had identified her writing. These are inland letters, which have postal stamps of cancellation of various dates and therefore, it would be difficult to contend that the letters were not genuine or were not written by the victim. Those letters were not written at one point of time but over a period of time and therefore, the contention of the learned APP that the letters were accepted, by the learned trial Judge as trustworthy is correct.

Learned counsel for the appellants next submitted that the letters do not provide any material to show that the victim was subjected to such cruelty as would drive her to commit suicide which is necessary ingredient for the offence u/s 498A of the Indian Penal Code. He submits that ordinary disagreements or quarrels would not constitute cruelty as defined in Section 498A of the Penal Code. The statement of defence witness who recorded the first information about suicide would clearly show that the cause which led the victim to commit suicide was that on the incidental night the husband told the victim to wear saree and not to wear night gown. He submits that the victim''s father who was examined as P.W. 1 has stated in his cross examination that it was true that his daughter was to some extent adamant. Therefore, learned counsel may be right in submitting that the conviction of the appellants for the offence punishable u/s 306 of the Indian Penal Code has not been justified and would have to be set aside.

This takes me to the question whether the appellants could be held guilty for offence punishable u/s 498A of the Indian Penal Code. The letters show that it was the appellant No. 3 Jannatbi Gavandi the victim''s mother-in-law, who had indulged in such ill treatment to the victim. The victim, in one of the letters, stated that she was a living corpse, the mother-in-law had asked the victim to undergo curetting when the victim had conceived and stated that after curetting the victim should be divorced. Learned APP submitted that this amounts to cruelty as defined u/s 498A of the Penal Code. In the context of the fact that these incidents occurred when the victim was pregnant, I hold that this would amount to cruelty. However, learned counsel for the appellants is right in submitting that similar conduct is not attributed to the other appellants, in fact victim herself has stated that her husband was supportive. Therefore, the conviction of the appellant Nos. 1, 2, 4 and 5 for the offence punishable u/s 498A cannot be sustained.

Learned counsel for the appellants submits that the appellant No. 3 Jannatbi was 50 years old at the time of incident and may now be about 70 years and therefore, she may not be sent back to prison now. Learned counsel for the appellants submits that it would be extremely harsh. Considering the fact that the sentence was imposed about 16 years ago, asking her to go back to jail now may not be proper. She was in prison for about 26 days and therefore, reducing substantive sentence to the period already undergone and increasing fine, the appeal could be disposed of.

The appeal is, therefore, partly allowed. The conviction of appellant Nos. 1, 2 and 5 for the offences punishable under Sections 498A and 306 of the Indian Penal Code and sentences imposed upon them are set aside. The conviction of appellant No. 3 Jannatbi for the offence punishable u/s 306 of the Indian Penal Code and sentence imposed is also set aside. The conviction of appellant No. 3 Jannatbi for the offence punishable u/s 498A is maintained. However, the substantive sentence is reduced to the period already undergone, by increasing the fine from Rs. 1,000/- to Rs. 10,000/- or in default of payment of fine to suffer simple imprisonment for period of one month. If the fine is not deposited within a period of four weeks from the date when the order is available on the website of High Court, the learned Sessions Judge may initiate steps to recover fine including having appellant No. 3 Jannatbi arrested to commit her to prison to serve the sentence.