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Wednesday, January 21, 2015

Section 498A and Section 304-B read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") = CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.552 OF 2012 Tarabai Appellant(s) VERSUS The State of Maharashtra Respondent(s)

                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No.552 OF 2012

      Tarabai                                      Appellant(s)


                             VERSUS


The State of Maharashtra                Respondent(s)


                               J U D G M E N T

Abhay Manohar Sapre, J.
1.    This appeal is filed by accused No.1 against the  final  judgment  and
order dated 30.11.2010 passed by the High Court of Judicature at  Mumbai  in
Criminal Appeal No. 145 of 1991 which arose  from  the  judgment  and  order
dated 26.02.1991 passed by the 5th Additional Sessions Judge at Kolhapur  in
Sessions Case No. 106 of  1990  convicting  accused  Nos.  1  &  2  for  the
offences punishable under Section 498A and Section 304-B read  with  Section
34 of the Indian Penal Code, 1860 (hereinafter referred  to  as  "IPC")  and
sentenced them to suffer simple imprisonment for one year and to pay a  fine
of Rs.1000/- under Section 498-A read  with  Section  34  IPC  with  default
clause and to undergo simple imprisonment for 7  years  under  Section  304-
B/34 IPC.  By impugned judgment, the High  Court  dismissed  the  appeal  in
respect of the present appellant-accused No.1  and  allowed  the  appeal  in
respect of accused No.2 by acquitting her of the charges.
2.    Facts of the case need  mention  in  brief  to  appreciate  the  issue
involved in this appeal.
3.    Krishnabai (deceased) was the daughter  of  Malu  (PW-1)  and  Bhagwan
Dhavele.  She was married to  one  Hanmant  Taralkar  on  12.05.1989.  After
marriage, Krishnabai was living  with  her  husband  and  parents-in-law  at
Ichalkaranji, a nearby village.  The present appellant (accused  no.  1)  is
the mother-in-law of Krishnabai (deceased) whereas (accused  no.  2)-Balabai
aged around 18 years is her sister-in-law.
4.    It is the case of prosecution that the appellant (accused no.  1)  and
Balabai (accused no. 2) used to constantly treat Krishnabai with cruelty  by
beating or/and ill-treating her because she had not brought any gold,  cash,
new clothes etc.  with her in marriage and also  pressurized  her  to  bring
gold, cash, new clothes etc. from her parents.  On coming to know  of  this,
Malu (PW-1)-mother of Krishnabai had gone to  meet  Krishnabai  thrice   and
requested the appellant-accused no.1 to permit Krishnabai to go  along  with
her for few days but she did not allow her to go.
5.    However, on  26.2.1990,  Gangadhar,  father-in-law,  took   Krishnabai
(deceased) to her parents  house.  On  reaching  there,  Krishnabai  started
weeping and told her mother (PW-1) about the ill-treatment meted out to  her
by the appellant-accused No.1 and her sister- in-law (accused No.2)  because
she did not bring any cash, gold and  new  clothes  in  marriage.  She  also
complained that her husband never paid any attention  to  such  behavior  of
his mother-the appellant and sister towards her.  On 03.03.1990,  Malu  (PW-
1) and the neighbour-Amirbi (PW-2) took Krishnabai to her  husband's  place.
On reaching there, the appellant herein started  quarreling  with  them  and
began to beat Krishnabai  with  'chappal'.  On  seeing  this,  Gangadhar-the
appellant's husband intervened and asked her not  to  beat  krishnabai.  The
appellant did not like the interference made by her husband and  pushed  him
aside.  Amirbi also tried to persuade the appellant not to  do  such  things
but the appellant did not listen to her.   Malu  and  Amirbai,  PWs  1  &  2
respectively, then returned to their village leaving Krishnabai there.
6.    On 23.03.1990 after 9.00 p.m.,  one  unknown  person  came  to  Malu's
house and informed her that Krishnabai is serious.  On  hearing  this  news,
Malu and some other people immediately left  to  see  Krishnabai.  On  their
reaching there, they found  that  many  people  had  gathered  in  front  of
Krishnabai's house. The door of the room was closed from  outside.   Sharda-
the daughter of accused No.1, opened the door and PW-1- the  mother  of  the
deceased went inside the room and saw that Krishnabai was  lying  dead  with
burn injuries on her body.
 7.    Report  of  the  said  incident  was  lodged  by  Mhalaba,  uncle  of
Krishnabai  (deceased)  and  son-in-law  of  accused  No.1,  who   too   had
accompanied  Malu  that  Krishnabai  had  committed  suicide  by  immolating
herself. Thereafter the dead body  of  the  deceased  was  taken  to  nearby
Hospital where post-mortem examination was conducted.  The  autopsy  surgeon
reported that Krishnabai died due to shock because of  100%  burn  injuries.
Malu (PW-1), the mother of the deceased, then lodged another report  at  the
police station on 25.03.1990 about  the  incident.  The  police  accordingly
registered Crime No. 40/1990 for the offences punishable under Sections 498-
A, 304-B read with Section 34 of the Indian Penal  Code,  1860  (hereinafter
referred to as "IPC"). The police investigated the case  and  prepared  spot
Panchnama  (Ex-P-11).  The  statements  of  witnesses  were  recorded.   The
appellant and her daughter Balabai were prima facie  found  responsible  for
the death of Krishnabai and hence both were apprehended.  The   charge-sheet
was then filed against both of them for their  prosecution.   The  case  was
committed to the Court of Session.
8.    Both the accused abjured the guilt and claimed trial. The  prosecution
examined five witnesses and filed documents,  which  were  admitted  by  the
accused during trial.
9.    The Session  Judge,  by  judgment  and  order  dated   26.02.1991,  in
Sessions Case No. 106 of 1990  held  both  the  accused  guilty  of  offence
punishable under Sections 498-A and 304-B read with Section 34 of  IPC.   So
far as the offence under  Section  498-A/34  IPC  was  concerned,  both  the
accused were sentenced to suffer one year's simple imprisonment and  to  pay
a fine amount of Rs.1000/-  and in default of payment of  the  fine  amount,
to suffer 3 months further simple imprisonment  whereas  the  offence  under
Section 304-B/34  IPC  was  concerned,  the  appellants  were  sentenced  to
undergo 7 years simple imprisonment. Both the  sentences  were  directed  to
run concurrently. Felt aggrieved by the order of  conviction  and  sentence,
both the accused filed appeal before the High Court.
10.   The High Court, by impugned judgment, allowed the appeal in so far  as
accused no. 2, namely, Belabai, is concerned and acquitted her of  both  the
charges.  So far as the present appellant (accused no.1) is  concerned,  the
High Court dismissed her appeal and upheld her conviction.  Challenging  the
said judgment, accused No.1 has filed this appeal by way of special leave.
11.   Learned Counsel for the appellant  while  challenging  the  conviction
has raised five contentions.
(i)   Since there was inordinate delay in lodging the FIR, conviction  based
upon such delayed FIR is not legally sustainable.
(ii)  Police authorities, after tearing of the original  statement  recorded
under Section 161, prepared any other  statement and hence, this  action  of
the police authorities vitiates the trial because no reliance can be  placed
on  such  statement  prepared  by  the  police  to  falsely  implicate   the
appellant.
(iii) No reliance should be placed on the testimony of PW-1 because she  was
not having cordial relations with her daughter -  Krishnabai,  who  used  to
live separately with her uncle before marriage.
(iv)  There was no evidence to hold that the present appellant-an aged  lady
in late seventies, at the relevant time, could make demand of dowry or  ill-
treat the Krishnabai or beat her.
(v)    If the other accused was acquitted by giving benefit  of  doubt  then
on the same set of evidence, the present  appellant  is  also  entitled  for
acquittal.
12.   In contra, learned counsel for the respondent-  State  contended  that
no case is made out  for  any  interference  in  the  concurrent  conviction
recorded by the two Courts below. Learned Counsel urged  that  none  of  the
aforementioned submissions of the appellant have any substance  inasmuch  as
all the five submissions pressed in  service  are  against  the  record  and
settled principle of  law  laid  down  by  this  Court.   It  was  also  his
submission that the appellant did not adduce any  evidence  in  her  defence
except to deny the  case  of  prosecution.  It  was  pointed  out  that  the
appellant's husband was the best witness to rebut the prosecution  story  of
alleged demand of dowry, ill-treatment and beating meted out  to  Krishnabai
which persuaded her to end  her  life.   Learned  Counsel  urged  that  non-
examination of this best  witness  despite  he  being  available  should  go
against the appellant.
13.   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find no merit in any of the  submissions  of  the
appellant.
14.   Coming first to the submission relating to the  delay  in  filing  the
FIR, we find no merit in the same for more than one  reason.  In  the  first
place, there is no delay in filing FIR.  It has come  in  evidence  that  in
midnight of 23.03.1990 PW-1-Malu along with  others  reached  the  house  of
Krishnabai to find  out  as  to  what  happened  to  her.  Having  seen  her
condition, naturally they first took Krishnabai to  the  hospital  on  24th,
where doctors declared  her  dead.   Since  it  was  a  case  of  100%  burn
injuries, doctors performed post-mortem on the same  day  and  declared  the
cause of death. PW-1, the mother of the deceased accordingly lodged the  FIR
of the incident the next day,i.e.,25th.
15.   In our considered opinion, there was no delay in  filing  the  FIR  of
the incident and in fact, it was lodged immediately after the incident  with
specific details mentioning the ill- treatment, beating and demand of  dowry
made by the appellant and her daughter from the deceased.
16.   Coming now to the second submission that the  police  authorities  had
torn the original statement of PW-1 recorded under Section 161 and  prepared
the second one with a view to file a false case against  the  appellant  has
also no merit for the reason that firstly, the appellant did not raise  this
plea before the Courts below and secondly, on perusal of the evidence of PW-
1, it is clear that what was torn off was one unsigned paper in  which  only
few lines were recorded. This could be due to various reasons  and  no  such
suggestion was put to witnesses on this issue and lastly, P.W-1 stated  that
her signed statement was used in trial.
17.   We have also perused the recorded statement and the evidence  of  PW-1
and find no inconsistency or/and any conflicting version in both  to  reject
the testimony of PW-1 or the statement recorded under Section 161.
18.   Coming to the third submission that no reliance should  be  placed  on
the evidence on PW-1 because her relations with daughter were  strained  due
to which both used to live separately before marriage has no merit  for  the
reason that there is no evidence  to  prove  this  fact.  That  apart,  even
assuming for the sake of argument that Krishnabai used  to  live  separately
from her mother (PW-1) before her marriage could not be  made  a  ground  to
reject the testimony of PW-1.  Indeed the fact of  living  separately  could
be due to various reasons and  one  could  be  that  PW-1's  husband  was  a
drunkard and used to create problems in the house due  to  which  Krishnabai
at times used to live in her uncle's house which was near to their house.
19.   We have perused the entire evidence  of  PW-1  and  find  that  it  is
consistent in all respects and commands acceptance  for  proving  complicity
of the appellant in commission of the offence. We cannot, therefore,  accept
the submission of the appellant to disbelieve the sworn testimony of PW-1.
20.   Coming to the last submission of the appellant that since  benefit  of
doubt was given to other accused,  i.e.,  Belabai  by  the  High  Court,  on
parity the same benefit should be extended to the  appellant  by  acquitting
her has no substance for the reason that there was enough evidence to  prove
the complicity of  the  appellant  in  commission  of  offence  whereas  the
prosecution failed to  adduce  any  evidence  to  prove  the  complicity  of
Belabai-accused No.2.
21.   This is a case where the death of  Krishnabai  occurred  within  seven
years of her marriage. It was within  one  year  because  the  marriage  was
performed on 12.05.1989 whereas she died on  26.02.1990.  In  view  of  this
admitted position emerging from the case, the basic ingredients  of  Section
113-A of the Evidence Act, 1872 read with Sections 304-B and  498-A  of  IPC
stood against the accused persons for their  prosecution  for  the  offences
punishable under Section 304-B and Section 498-A IPC.

22.   It has come in evidence that soon after the  marriage,  the  appellant
started making demand of gold, cash  and  clothes  etc.  from  the  deceased
coupled with beating and ill-treating her for  not  satisfying  the  demands
made by her.

23.   A young girl in early twenties  ending  her  life  with  100  %  burns
within 8 months of her marriage due to ill treatment,  beating  and  demands
made by mother-in-law can not be over-looked to show  sympathy  towards  the
appellant. Indeed, it was the appellant who was responsible for her death.

24.   As rightly urged by the learned counsel for the respondent,  the  best
person to prove the case  of  the  appellant  was  the  appellant's  husband
because he was living in the same house. He was in a position to tell as  to
what used  to  happen  in  the  house  and  whether  relations  between  the
appellant and the deceased were cordial or strained. On the other  hand,  it
has come in evidence that sometimes husband used  to  intervene  and  warned
the appellant of her behavior towards the deceased.

25.   So far as sentencing part is concerned, the Courts below have  awarded
seven years' simple imprisonment to  the  appellant.  The  appellant  should
feel fortune to suffer only 7 years because having regard to the  nature  of
commission of the offence and her complicity in the offence, it  could  have
been even more than what has been awarded. We, however, do not wish  to  say
any thing more on this issue except to uphold the conviction and sentence.

26.   In the light of foregoing discussion, we have not been able to  notice
any infirmity in the impugned judgment of the High Court and hence  find  no
merit in this appeal.
27.   The appeal thus fails and is hereby dismissed.igh High


.............................................................J.
                 [FAKKIR MOHAMED IBRAHIM KALIFULLA]


 ...............................................................J.
                       [ABHAY MANOHAR SAPRE]


      New Delhi;
      January 20, 2015.
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