Surendra s/o Motipuri Goswani vs State of Maharashtra

The appellant seeks to assail the judgment and order dated 15-7-2002 rendered by the learned 4th Ad hoc Additional Sessions

Judge, Nagpur in Sessions Trial 75/1999, by and under which the

appellant-accused is convicted for offence punishable under Section

306 of the Indian Penal Code (" IPC " for short) and is sentenced to

suffer rigorous imprisonment for five years and to payment of fine of

Rs.1,000/- and is further convicted for offence punishable under

Section 498-A of the IPC and is sentenced to suffer rigorous

imprisonment for two years and to payment of fine of Rs.500/-.

Heard Shri R.B. Gaikwad, learned Counsel for the

appellant-accused and Miss Trupti Udeshi, learned Additional Public

Prosecutor for the respondent-State.

The accused faced trial alongwith his parents Shri Motipuri

and Smt. Anjanabai for offences punishable under Sections 498-A and

306 read with Section 34 of the IPC. The parents of the accused are

acquitted of the said offences.

The genesis of the prosecution is in oral report dated

15-9-1997 (Exhibit 15) lodged by Ramsagar Santoshpuri Goswami

(P.W.2) who is the brother of deceased Rekha. The gist of the report is

thus :

The marriage of Rekha and the accused was solemnized at

Nagpur in 1994. She was treated well for a year. The couple was

blessed with a son in June 1995. The delivery was caesarean due to

which Rekha was unable to work for sometime and she was assaulted

by lathi and driven out of the house. She was not permitted to take her

son. Rekha took shelter in the house of her sister at Pardi. The

informant took Rekha to Police Station Lakadganj and lodged the

report. The accused was summoned in the police station and the

custody of the son was delivered to Rekha. The informant then took

Rekha to his village Wag. Rekha stayed with the informant in village

Wag for six months during which period the accused visited the village

seven to eight times and requested that Rekha be sent with him. He

was asked to give a written undertaking in presence of some persons.

The elder brother of the accused Narendrapuri and a friend Nikose

came to the village. In their presence and in the presence of five

panchas representing the family of Rekha and one Vasantrao Itkelwar

the accused gave a written undertaking pursuant to which Rekha was

sent with him. On 25-9-1996 Rekha was blessed with a daughter, the

informant went to meet Rekha who was weeping and she disclosed

that she was being assaulted by the accused and his parents. Rekha

conveyed that the harassment was unbearable and that she would

cause harm to her life. She further conveyed that the accused was

insisting that Rekha must bring some money from the informant for

business and she was beaten on this issue. On 11-9-1997 when

Shakunbai who is Rekha''s sister, visited Rekha, it was conveyed to her

that in the morning Rekha was abused by her mother-in-law and

beaten by her father-in-law. Rekha reiterated that the harassment was

unbearable and that she would cause harm to her life. Rekha

committed suicide on 13-9-1997 by hanging herself. However, the

family of the accused did not inform the family of Rekha. On 14-9-

1997 at 10-00 a.m. the informant and other members of the family

received the news from the brother-in-law of the informant Rambhau

Pragat of Pardi. The informant and other members of the family

reached Pardi at 4-00 p.m. The report (Exh. 15) was lodged by PW 2

on 15.9.1997.

On the basis of the said report, offence punishable under

Sections 498-A and 306 of the IPC was registered against the accused

and his parents. In the interregnum, accidental death enquiry was

registered on information given by the accused. The spot was

inspected on 13-9-1997 and panchanama (Exhibit 48) was drawn. At

the time of preparing the spot panchanama, the police found one note

book containing a suicide note penned by the deceased Rekha and

another note book with one pen. The said articles were seized. The

inquest panchanama (Exhibit 49) was prepared, the autopsy conducted

and post-mortem report (Exhibit 17) obtained.

The document styled as "VERNACULAR MATTER OMITTED"dated 30-1-1996

(Exhibit 53) was seized vide seizure panchanama (Exhibit 57). The

opinion of the expert (Exhibit 36) was obtained as regards the

handwriting in the note books. Statements of witnesses were recorded

and upon completion of the investigation charge-sheet was submitted

in the Court of Chief Judicial Magistrate, Nagpur, who committed the

proceedings to the Sessions Court. The learned Sessions Judge framed

charge (Exhibit 4) under Sections 498-A read with Section 34 and 306

read with Section 34 of the IPC. The accused abjured guilt and claimed

to be tried. The defence is of total denial.

Irrefragably, Rekha died on 13-9-1997 within seven years

of the marriage. Indubitably, her death is suicidal. If the prosecution

is successful in establishing that Rekha was subjected to cruelty within

the meaning of Explanation (a) or (b) of Section 498-A of the IPC, this

Court would be entitled to invoke, subject to the attending

circumstances, presumption under Section 113-A of the IPC that the

accused abetted the suicide. The pivotal issue is whether the

prosecution has proved beyond reasonable doubt that the accused

subjected deceased Rekha to cruelty as is statutorily defined.

P.W.1 Rambhau Pragat is the brother-in-law of the

deceased. He has deposed that after three to four months of the birth

of the son in the year 1995, the accused started quarrelling with the

deceased. Accused 1 did nothing to earn livelihood and did not take

care of the financial needs of the family. The accused used to have

meals at the house of his mother. Rekha was blessed with the second

child in 1996. The beating continued, although P.W.1 is not aware of

the reason for such beatings, is the deposition. Rekha used to narrate

the ill-treatment to which she was subjected to during her visits to the

house of P.W.1, is the deposition.

In the cross-examination on behalf of accused 1, it is

elicited that Rekha and the accused were cohabiting well and that there

was no dispute between them. In the cross-examination on behalf of

accused 2 and 3, it is extracted that Rekha was happy in her family.

P.W.2 Ramsagar Goswami is the informant. He is the

brother of the deceased. He has deposed that after the first delivery,

which was caesarean, the accused beat Rekha with stick. Due to the

beating, Rekha left her matrimonial house and sought shelter in the

house of her sister at Pardi. The son was with the accused. Rekha

conveyed to P.W.2 that she was beaten. P.W.2 took her to the

Lakadganj Police Station and lodged a report. The custody of the child

was secured by Rekha due to the intervention of the Lakadganj Police

Station. After Rekha recovered from illness, she came to the house of

P.W.2 at Wag and resided with P.W.2 for six months. The accused was

intermittently visiting the house of P.W.2 to take Rekha to the

matrimonial house. However, Rekha was refusing to accompany the

accused. She was saying that the accused was demanding money for

business. A meeting was arranged which was attending by

representatives of both the sides. The accused gave an undertaking on

a stamp paper that he would treat Rekha well. It was only thereafter

that Rekha went to the house of the accused. A year later, she gave

birth to a girl child. P.W.2 visited her house once or twice after the

birth of the girl child and it was disclosed by Rekha that the accused

used to abuse and beat her on the issue of money and that there was

no improvement in the behaviour of the accused. P.W.2 did not pay

the money. Rekha''s sister visited the house of the accused and to her

Rekha disclosed that when the father of the accused fell in a ditch, he

blamed her.

In the cross-examination, P.W.2 admits that he lodged the

report after discussing with family members. The statement that Rekha

was beaten by stick, is brought on record as an omission. P.W.2 admits

that his relationship with the accused was good when the accused was

visited his house on seven to eight occasions. P.W.2 admits that the

accused and Rekha started residing separate from the father and

mother of the accused after the birth of the second child. The

suggestion that Rekha was hot tempered, is denied. The suggestion

that her marriage was performed against her will, is denied.

In the cross-examination on behalf of accused 2 and 3

certain omissions are brought on record. However, most of the

omissions which are brought on record are minor and do not touch the

core of the prosecution case.

P.W.2 was further examined pursuant to order below

Exhibit 74 to prove that the handwriting on the note book seized is that

of deceased Rekha. In the cross-examination, it is extracted that the

witness cannot say definitely whether writing at Exhibit 29 and Exhibit

35 are of deceased Rekha.

P.W.3 Shakun Pragat is the sister of Rekha. She has

deposed that the incident of beating with stick was disclosed to her by

Rekha. She corroborates the testimony of P.W2 that a report was

lodged and due to police intervention, the custody of the child was

handed over to Rekha. She states that Rekha narrated that she was

assaulted by the accused on the issue of household work. She has

testified as to the meeting convened in village Wag pursuant to which

Rekha accompanied the accused to her matrimonial house. She has

also deposed that Rekha was not willing to accompany the accused and

was saying that the accused would beat her and ask her to bring

money. She has deposed that the accused neglected the financial

needs of the family and was having meals in the house of his parents

while the deceased Rekha starved. P.W.3 has deposed that two days

prior to the death of Rekha, she disclosed to her that the accused was

questioning the paternity of the girl child. Rekha was weeping when

she made the disclosure, is the deposition. P.W.3 has further deposed

that when accused 2 fell in a ditch under the influence of liquor, Rekha

was blamed and accused of keeping the ditch open. She was inflicted

two to three slaps by her father-in-law.

In her cross-examination, several omissions are brought on

record. The statement that Rekha conveyed that accused beat her, the

statement that Rekha refused to accompany the accused on the ground

that the accused used to demand money, is an omission. The

statement that the accused was present in the meeting and said that he

will not repeat such acts and then he would reside separate, is an

omission. The statement that the accused did not bring anything in the

house and Rekha was starved, is again an omission. The statement

that the incident of the father-in-father falling in the ditch and blaming

Rekha was narrated, is an omission. It is brought on record in the

cross-examination on behalf of accused 2 and 3, that the accused had

lodged complaint against her brother that he was assaulted and the

assault caused injury on the nose.

P.W.4 Vishwas Ranjangaonkar is the handwriting expert

who is examined to prove that the suicide note is written by deceased

Rekha.

P.W.5 Ranjana Durge is a neighbour of the accused who

has proved spot panchanama (Exhibit 48) and the seizure of the two

note books. She has deposed that Rekha used to narrate the instances

of ill-treatment which she was subjected. She has further deposed that

Rekha disclosed to her that the accused used to taunt her as "daughter

of beggar" and used to ask her to bring Rs.50,000/- from her parents.

In the cross-examination, she has denied the suggestion

that her relations with the accused are inimical. The statement that

Rekha narrated that she was asked to bring Rs.50,000/- from parents,

is an omission. The statement that Rekha narrated that she was told

that her parents were beggar, is again an omission. The statement

that a day prior to the incident the deceased narrated that accused

used to beat her, is again an omission.

P.W.6 Chandrahas Baseshankar was Sarpanch of village

Wag from 1992 to 1997. He has deposed that Rekha was subjected to

ill-treatment and resided at village Wag with her brother for five to six

months. He states that Rekha conveyed that she did not have desire to

live. P.W.6 has deposed that when the accused visited village Wag, he

assaulted the brother and uncle of the deceased with a broken glass

bottle under the influence of liquor. The cause of the altercation was

that the accused was not permitted to take Rekha to her matrimonial

house. He has deposed that a meeting took place on 30-1-1996 in

which the accused gave a written undertaking styled as "le>ksrk i=".

P.W.3 has identified the signatures of the accused and deceased Rekha

on the said "le>ksrk i=" (Exhibit 53). P.W.6 states that he visited the

house of the deceased when she gave birth to the girl child. During the

said visit, Rekha was weeping and complaining of ill-treatment. Rekha

also conveyed that the accused used to suspect her character. Several

omissions are brought on record in the cross-examination, the

significance or otherwise of the omissions shall be discussed, at a later

stage in the judgment.

P.W.7 Ashok Kawale has proved seizure panchanama

(Exhibit 57) vide which the document styled as "le>ksrk i=" was seized.

He has cross-examined extensively, however, the testimony is not

shaken in the cross-examination.

P.W.8 Krushnarao Kaurate, then attached to Kalamna

Police Station as Assistant Sub-Inspector recorded the accidental death

report (Exhibit 59) and prepared the spot panchanama.

P.W.9 Anil Sonowane is the Investigating Officer who

registered the offence and recorded the statements of the relatives of

the deceased on 16-9-1997.

One omission in the evidence of P.W.1 Rambhau, which is

to the effect that the accused was not doing anything and used to take

meal at the house of his parents, is proved. The omission in the

evidence of P.W.2 Ramsagar that he informed others about the ill-

treatment to which Rekha was subjected, is duly proved. The omission

is vis-a-vis the oral report lodged by P.W.2. The other omissions which

are brought on record do not affect the core or the substratum of the

testimony of PW 2 Ramsagar.

The omission in the evidence of PW 3 Shakunbai that the

deceased narrated to her that she was beaten, is proved. The omission

that the deceased resided with her for 15 days and her brother and

deceased went to the Police Station to lodge report, is proved. The

omission that the accused did not bring anything in the house and that

two days prior to the death she had gone to the house of the accused, is

duly proved. The omission that deceased reported that the accused

used to ask her sister to die if she fails to bring money, is proved. The

omission that a day prior to the incident, the deceased conveyed that

the accused used to beat her is duly proved.

The omission brought on record in the evidence of PW 6

Chandrahas that after the delivery of the second child, he went to the

house of the deceased and was told that the accused used to beat the

deceased, is proved.

The learned counsel for the accused submits that the

prosecution has not established that deceased Rekha was subjected to

cruelty within the meaning of explanation (a) or (b) of section 498-A

of the IPC, with the result, the presumption under section 138 is not

activated. The submission is, that the harassment and illtreatment

which is alleged by the prosecution, must be persistent and continuous

and must be of such nature and extent as would drive a woman to

commit suicide or as is likely to cause grave injury or danger to life,

limb or health of the woman. The submission of the learned counsel

Shri R.B. Gaikwad is that the evidence on record is not cogent enough

to prove willful conduct of the nature envisaged by explanation (a) or

(b) of section 498-A of the IPC. In so far as section 306 of the IPC is

concerned, the submission of the learned counsel is that the

prosecution has failed to bring on record the requisite mens-rea to

prove that the accused instigated the deceased to commit suicide.

Implicit in the definition of abetment under section 107 of the IPC is

that the conduct must be willful and the gravity and degree of the

willful conduct must be such as would drive the woman to such a

situation as would leave her with no option to take the extreme step, is

the submission. The submission, as a proposition of law, is

unexceptionable. The pivotal issue, therefore, is whether the

prosecution has established that the deceased was subjected to cruelty

within the meaning of section 498-A of the IPC and whether having

regard to the other circumstances, the learned Sessions Judge was

justified in invoking the statutory presumption under section 113-A of

the Indian Evidence Act.

The conscious of the Court is satisfied that the prosecution has proved beyond reasonable doubt that Rekha was subjected to

cruelty within the meaning of section 498-A of the IPC. The evidence

of PW 2 Ramsagar, which is more than amply corroborated by the

evidence of PW 3 Shakunbai is that soon after the birth of the first

child, Rekha was assaulted and was compelled to leave the

matrimonial house. The version of the prosecution witnesses that

Rekha sought shelter in the house of her sister at Pardi and the custody

of the child could be secured only due to the intervention of the

Lakadganj Police Station is not shaken in the cross-examination. The

evidence of PW 2 Ramsagar and PW 3 Shakunbai that Rekha was

forced to reside with PW 2 for six months at village Wag and she

returned to her matrimonial home only after the accused undertake to

treat her well, is confidence inspiring. It is true that the statement of

PW 6 Chandrahas who was the Sarpanch of village Wag from 1992-97,

is recorded belated on 9.3.1998 and the explanation given by the

Investigating Officer for the delay in recording the statement is not

satisfactory. However, while delay in recording the statement must put

the Court on guard, the implication and significance of the delay would

depend on the facts and no general proposition can be laid down that

belatedly recorded statement must, in every case, give rise to an

inference that the deposition of the witness is unreliable. The evidence

of PW 6 that a meeting was convened at village Wag between accused

and his representatives and the family members of deceased Rekha in

which meeting the accused executed a document styled as "Samzota

Patra" (Exh. 53), is duly corroborated by PW 2 Ramsagar. The

Samzota Patra (Compromise Deed) Exh. 53 records the assurance of

the accused that the deceased shall not be subjected to harassment.

The Samzota Patra Exh. 53 further records that the accused shall be

solely responsible should any untoward incident occurs. There is no

serious challenge to the authenticity of Exh. 53 which is duly signed by

the accused. The evidence on record is cogent enough to prove that

the deceased Rekha was compelled to leave her matrimonial home and

it was only after more than six months that she returned to her

matrimonial home in view of the assurance extended in writing that

she will not be illtreated or harassed.

The prosecution has further established that even after deceased

Rekha returned to her matrimonial home and gave birth to her second

child, a daughter, the illtreatment continued. PW 3 Shakunbai has

indeed indulged in some exaggeration and improvement. But then, her

entire testimony can not be discarded and it is the duty of the Court to

separate the grain from the chaff. The evidence that the deceased was

starved appears to be an exaggeration. However, the evidence of PW

3, which corroborates the evidence of PW 2 Ramsagar that their sister

Rekha narrated that she was physically assaulted and harassed and was

asked to bring money from the parental home, is reliable and is not

shaken in the cross-examination. The prosecution has successfully

proved that the illtreatment to which deceased Rekha was subjected

was persistent and continuous notwithstanding the assurance

incorporated in Samzota Patra Exh. 53 that she will not be harassed.

The evidence of PW 3 Shakunbai that the accused suspected the

paternity of the girl child has gone virtually unchallenged. No

suggestion is given to PW 3 in the cross-examination that the deceased

did not narrate to PW 3 that the accused suspected her character and

the paternity of the girl child. The evidence is more than amply

corroborated by the suicide note Exh 29 which reads thus:

"VERNACULAR MATTER OMITTED"

The handwriting on the suicide note is proved by PW 2

Ramsagar. It is true that in the cross-examination it is extracted

that he can not definitely say that the handwriting is that of the

deceased. However, the prosecution has examined PW 4, the

handwriting expert to prove the handwriting on the suicide note.

In my opinion, the prosecution is successful in proving that the

suicide note Exh. 29 is in the handwriting of the deceased Rekha.

The evidence on record would suggest that the

deceased Rekha was forced to take the extreme step in view of

the cruelty to which she was subjected. She was illtreated,

forced to leave the matrimonial home, persuaded to return in

view of an undertaking given by the accused not to illtreat her,

notwithstanding the undertaking given the illtreatment

continued and the final straw was the allegation that the accused

was not the father of the girl child. Such a allegation, per say,

would ordinarily constitute cruelty. In my opinion, the

prosecution has established beyond reasonable doubt that the

willful conduct of the accused was such as was likely to drive

Rekha to commit suicide. I do not see any infirmity in the

findings recorded by the learned Sessions Judge and the

conviction recorded and sentence imposed pursuant to the

finding that the deceased was subjected to cruelty of such nature

and extent as would constitute instigation and therefore

abetment within the meaning of section 306 of the IPC.

(i) The appeal is sans merit and is rejected.

(ii) The accused be taken into custody forthwith to serve the sentence. The bail bond of the accused stand cancelled.

(iii) The accused shall be entitled to set of under section 428 of the Code of Criminal Procedure.

(iv) Police Station Officer, Police Station Kalamna, Tahsil & District Nagpur is directed to file a compliance report in the Registry of this Court within 15 days.