apeal276.04.J.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPEAL NO.276 OF 2004 Manohar s/o Bhaurao Khanve Aged about 31 years, Occupation: Agriculturist, Resident of Village Mendaki, Dist. Nagpur. ....... APPELLANT ...V E R S U S... The State of Maharashtra (Through PSO Katol, Dist. Nagpur) ....... RESPONDENT ------------------------------------------------------------------------------------------- Shri Sudeep Jaiswal, Advocate for Appellant. Mrs. M.H. Deshmukh, AAPP for Respondent/State ------------------------------------------------------------------------------------------- CORAM: ROHIT B. DEO, J.
DATE: th 20 SEPTEMBER, 2017. ORAL JUDGMENT 1] The appellant seeks to assail judgment dated
05.03.2004 in Sessions Trial 42/1999 delivered by the 2 nd Ad hoc Additional Sessions Judge, Nagpur, by and under which, the appellant is convicted for offence punishable under section 304-B of I.P.C. and is sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.1000/-. One Satyafula w/o Narayan Rakshit who was tried along with the appellant (hereinafter referred to as “the accused) as accused 2 is however, acquitted of the said offence.
2] Heard Shri Sudeep Jaiswal, the learned counsel for the accused and Mrs. M.H. Deshmukh, the learned Additional Public Prosecutor for the respondent/State.
3] Shri Sudeep Jaiswal, the learned counsel for the accused submits that even if the entire evidence of the prosecution is taken at face value, necessary ingredients constituting offence under section 304-Bof I.P.C. are not made out. He would submit, that there is not even an iota of evidence on record that soon before the death, Anita the late wife of accused was subjected to cruelty or harassment by the accused or any relative of the accused, for or in connection with, any demand of dowry.
The conviction has occasioned a serious miscarriage of justice, is the submission.
4] Per contra, Mrs. Deshmukh, the learned A.P.P.
submits that there is ample evidence on record to show that the deceased Anita was subjected to cruelty soon before her death and that the cruelty was for or in connection with demand for dowry.
Concededly, late Anita committed suicide within five years of the marriage, and presumption undersection 113-B of the Indian Evidence Act, 1872 can be drawn, is the submission.
5] Section 304-B of the Indian Penal Code reads thus:
“304-B. Dowry death.– (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.
Explanation.– For the purposes of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”
In view of the explanation, it would be apposite to refer to and consider the definition of “dowry” in section 2 of the Dowry Prohibition Act, 1961 which reads thus:
“2. Definition of “dowry” – In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly –
(a) by one party to a marriage to the other party to the marriage, or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;
at or before (or any time after the marriage) (in connection with the marriage of the said parties, but does not include) dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.”
Section 113-B of the Indian Penal Code reads thus:
“113-B. Presumption as to dowry death – When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation – For the purposes of this section, “dowry death”, shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).
6] Section 304-B is introduced in the Indian Penal Code by the Dowry Prohibition (Amendment) Act, 1986, with the avowed object of curing and curbing the menace of dowry death.
Section 113-B was also introduced in the Indian Evidence Act by the said Act of 43 of 1986.
The necessary ingredients of section 304-B of the Indian Penal Code are as follows:
(1) The death of the woman was caused due to burns, bodily injury or due to unnatural circumstances.
(2) The death should be within seven years of marriage.
(3) It would be shown that soon before death the woman was subjected to cruelty or harassment by her husband or any relative of the accused.
(4) The cruelty or harassment was for or in connection with any demand of dowry. It is axiomatic that since the presumption under section 113-B of the Indian Evidence Act is a presumption of law, on the prosecution proving the essential ingredients, the Court is obliged to raise a presumption that the accused caused the dowry death as is held by the Hon’ble Supreme Court in Prem Kanwar vs. State of Rajasthan, (2009) 3 SCC 726.
7] Shri Sudeep Jaiswal, the learned counsel for the accused relies on the judgment of the Hon’ble Supreme Court in Baijnath and others vs. State of Madhya Pradesh 2016 (4) Bom. Cr C 809 (SC) and in particular to the following observations to contend that the presumption under section 113-B would get activated only upon the proof of the fact that the deceased had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused.
32. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death.
Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.
33. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine quo non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.
34. The legislative primature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person charged, cannot be overseased to gloss-over and condone its failure to prove credibly, the basic facts enumerated in the Sections involved, lest justice is the casualty.
35. This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304B as in Shinde Alias Sawinder Kaur and another vs. State of Punjab and echoed in Rajeev Kumar vs. State of Haryana. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113B of the Act. It referred to with approval, the earlier decision of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao to the effect that to attract the provision of Section 304B of the Code, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand for dowry”.
36. Tested on the judicially adumbrated parameters as above, we are of the un hesitant opinion that the prosecution has failed to prove beyond reasonable doubt, cruelty or harassment to the deceased for or in connection with any demand for dowry as contemplated in either of the two provisions of the Code under which the accused persons had been charged. Noticeably, the alleged demand centers around a motorcycle, which as the evidence of the prosecution witnesses would evince, admittedly did not surface at the time of finalization of the marriage. PW-5, the mother of the deceased has even conceded that there was no dowry demand at that stage. According to her, when the husband (who is dead) had insisted for a motorcycle thereafter he was assured that he would be provided with the same, finances permitting. Noticeably again, the demand, as sought to be projected by the prosecution, if accepted to be true had lingered for almost two years. Yet admittedly, no complaint was made thereof to anyone, far less the police. Apart from the general allegations in the same tone ingeminated with parrot like similarity by the prosecution witnesses, the allegation of cruelty and harassment to the deceased is founded on the confidential communications by her to her parents in particular and is not supported by any other quarter.
8] Shri Sudeep Jaiswal, the learned counsel would also rely on the judgment of the Hon’ble Supreme Court in Vipin Jaiswal vs. State of Andhra Pradesh and others 2013 Law Suit (SC) 215 to buttress the submission that even if it is accepted, arguendo, that the accused demanded and received an amount of Rs.5000/- from P.W.5 for the purpose of business, such demand would not be a dowry demand in connection with marriage.
Shri Sudeep Jaiswal invites my attention to the following observations in the said judgment.
6. We have perused the evidence of PW 1 and PW 4, the father and mother of the deceased respectively. We find that PW 1 has stated that at the time of marriage, gold, silver articles, ornaments, T.V., fridge and several other household articles worth more than Rs.2,50,000/- were given to the appellant and after the marriage, the deceased joined the appellant in his house at Kagaziguda. He has, thereafter, stated that the appellant used to work in a xerox cum type institute in Nampally and in the sixth month after marriage, the deceased came to their house and told them that the appellant asked her to bring Rs.50,000/- from them as he was intending to purchase a computer and set up his own business. Similarly, PW4 has stated in her evidence that five months after the marriage, the appellant sent her away to their house and when she questioned her, she told that the appellant was demanding Rs.50,000/- and that the demand for money is to purchase a computer to start his own business. Thus, the evidence of PW1 and PW4 is that the demand of Rs.50,000/- by the appellant was made six months after the marriage and that too for purchasing a computer to start his own business. It is only with regard to this demand of Rs.50,000/- that the Trial Court has recorded a finding of guilt against the appellant for the offence under Section 304B, IPC and it is only in relation to this demand of Rs.50,000/- for purchase of a computer to start a business made by the appellant six months after the marriage that the High Court has also confirmed the findings of the Trial Court with regard to guilt of the appellant under Section 304B, IPC. In our view, both the Trial Court and the High Court failed to appreciate that the demand, if at all made by the appellant on the deceased for purchasing a computer to start a business six months after the marriage, was not in connection with the marriage and was not really a ‘dowry demand’ within the meaning of Section 2 of the Dowry Prohibition Act, 1961. This Court has held in Appasaheb & Anr. Vs. State of Maharashtra, 2007 9 SCC 721:
In view of the aforesaid definition of the word “dowry” and property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v.
Garware Nylons Ltd., 1996 AIR(SC) 3509 and Chemicals and Fibres of India v. Union of India, 1997 AIR(SC) 558.
9] Shri Sudeep Jaiswal, the learned counsel for the accused and, in all fairness, Mrs. Deshmukh, the learned A.P.P.
both invite my attention to the judgment of the Hon’ble Supreme Court in Ghusabhai Raisanghbhai Chorasiya vs. State of Gujarat (2015) 11 SCC 753 in which it is articulated that the accused may have been involved in an illicit relationship, but in the absence of some other acceptable evidence on record that can establish a high degree of mental cruelty, the explanation to section 498-A of I.P.C. would not be attracted. At this stage, it would also be relevant to consider the scope and ambit of section 498-A of Indian Penal Code.
498-A. Husband or relative of husband of a woman subjecting her to cruelty.– Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
10] The ingredients of section 498-A of I.P.C. are articulated in Girdhar Shankar Tawade Vs. State of Maharashtra (2002) 5 SCC 177, thus:
“3. The basic purport of the statutory provision is to avoid “cruelty” which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word “cruelty” as is expressed by the legislature: whereas Explanation (a) involves three specific situations viz. (I) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury; whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of “cruelty” in terms of Section 498-A.”
“17. As regards the core issue as to whether charges under Sections 306 and 498-A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other, as noticed earlier, there appears to be a long catena of cases in affirmation thereto and as such further dilation is not necessary neither are we inclined to do so, but in order to justify a conviction under the later provision there must be available on record some material and cogent evidence. Presently, we have on record two inconsistent versions of the brother and the cousin, as such no credence can be attributed thereupon – the documentary evidence (namely, those three letters), in our view, falls short of the requirement of the statute: even on an assumption of the fact that there is no contradiction in the oral testimony available on record, the cousin goes to the unfortunate girl’s in laws’ place and requests the husband to treat her well – at best some torture and a request to treat her well. This by itself would not bring home the charge under Section 498-A. Demand for dowry has not seen the light of day”.
11] It is axiomatic that cruelty for the purpose of section 498-A of I.P.C is statutorily defined. Cruelty which may constitute a matrimonial offence may not necessarily be the cruelty envisaged under explanation (a) and (b) to section 498-A of I.P.C.
The evidence on record must be tested on the anvil of the statutory definition of cruelty and the articulation of the Hon’ble Supreme Court on the scope and ambit of section 498-A of I.P.C.
12] I may now proceed to analyze the evidence on record on the touchstone of the law articulated by the Hon’ble Supreme Court, referred to supra.
13] P.W.1 is the father of the accused who has not supported the prosecution. He has been cross-examined by the A.P.P. However, nothing is elicited in the cross-examination to assist the prosecution.
P.W.2 Shakuntala is the mother of the deceased.
In the examination-in-chief Shakuntala states that she was informed by the mother of the accused that the accused has an extramarital relationship. P.W.2 states that the accused used to ill-treat and harass Anita. She further states that accused had demanded money from Anita and her parents. P.W.2 makes a specific reference to the payment of Rs.2000/- by her son to the accused when P.W.2 and her husband had gone on a visit Haridwar. The learned counsel for the accused is right in contending that every material statement is an omission which partakes the nature of contradiction. That apart, even if the testimony is taken at face value, the case of the prosecution is not taken any further. The general statement that the deceased was ill-treated and harassed, in the absence of any details, is hardly sufficient to establish cruelty. The statement that Anita’s brother paid Rs.2000/- to the accused is again of little relevance. It is obvious from the testimony of P.W.2, that it is not even the version of P.W.2 that the accused made any dowry demand. P.W.3 Gulab Zade is the father of the deceased. In the entire evidence of P.W.3, nothing adverse to the accused is even alleged.
The evidence of P.W.3 is of no assistance to the prosecution.
P.W.3 does make a reference to a letter received from the deceased, but then, the alleged letter has not been proved. P.W.4 Gopal Narware is the maternal Uncle of the deceased. P.W.4 claims that he was told by Anita that there is tension between her and the accused. P.W.4 claims that the deceased Anita requested him to make the accused see the reason. He claims that he went to the village of the accused and adviced the accused. P.W.4 states that he was told by Anita that the accused harassed her and the accused used to ask money from her parents. Again, every statement of some significance is an omission. Even otherwise, the evidence is absolutely sketchy and the solitary statement that according to Anita she was harassed by the accused and that the accused demanded money from her parents must be discarded as of no significance in the absence of specific details. P.W.5 Wasudeo Verma is related to both the accused and the deceased Anita and claims that at the instance of Anita’s mother he gave the accused Rs.5000/- for the purpose of business. Even if the evidence of P.W.5 is accepted in its entirety, the evidence does not take the case of the prosecution any further.
14] A holistic appreciation of the evidence on record pursuades to me hold that the prosecution has not established offence under section 304-B of I.P.C. much less beyond reasonable doubt. The prosecution has miserably failed to prove that soon prior to death the deceased Anita was subjected to cruelty for or in connection with any dowry demand. Axiomatically, the presumption under section 113-B of I.P.C. will not come into play.
I am inclined to agree with Shri Sudeep Jaiswal, the learned counsel that the learned Sessions Judge fell in serious error in holding that the charge under section 304-B of I.P.C. is made out.
In the passing, the acquittal of the accused for offence punishable under section 306 of I.P.C. and conviction under section 304-B of I.P.C. is inexplicable and suffice only to reproduce paragraph 35 ofBhupendra vs. State of Madhya Pradesh 2013(13) SCALE 552.
35. We are, therefore, of the opinion that Section 306 of the IPC is much broader in its application and takes within its fold one aspect of Section 304-B of the IPC. These two sections are not mutually exclusive. If a conviction for causing a suicide is based on Section 304-B of the IPC, it will necessarily attract Section 306 of the IPC. However, the converse is not true.
I refrain from making any further observations.
15] The judgment impugned is manifestly erroneous and is unsustainable on facts and in law and is set aside.
16] The accused is acquitted of offence punishable under section 304-B of I.P.C.
17] The bail bond shall stand discharged.
18] Fine paid by the accused, if any, be refunded to him.
19] The appeal is allowed. JUDGE NSN