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CASE NO.: Appeal (crl.)  1507 of 2005

PETITIONER: SAHEBRAO AND ANR.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 03/05/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: JUDGMENT

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 deceased\026Sangita, 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, accused\026appellant 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

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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.  \005\005"

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

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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: "\005There 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

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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.   \005\005\005"  

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:       "\005cruelty 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 (a) to Section 498-A itself refers to  both mental and physical cruelty. \005\005..  Again  wilful conduct means, conduct wilfully done; this  may be inferred by direct or indirect evidence  which could be construed to be such. \005\005.  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.    \005\005."  

In Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619, this

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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:          " \005The 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.  \005\005\005 "

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

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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.  \005\005."

Similarly, in Hans Raj v. State of Haryana, (2004) 12 SCC 257 (in  para 13), this Court opined that :              "\005. 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. \005.."

       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.

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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.