Pramod S/O Badriprasad Pal vs The State Of Mah

Excerpt:
  If at all it was the case of the prosecution witnesses that the Deepa was subjected to cruelty soon before her death, it is not clear as to why the parents of Deepa had not lodged any complaint in the police station that Deepa was ill-treated by the accused and the ill-treatment was of such a nature that drove her to commit suicide. As already discussed above, the prosecution has failed to prove its case beyond reasonable doubt.
As far as the investigation is concerned, the Investigating Officer PW6-Gulab Wadke, PSI, shows that he admitted that he has not annexed statements of neighbours as they were not supporting the prosecution case. The said version of PW6 indicates that the statements of neighbours were not recorded by Investigating Officer as they were not supporting the case of the prosecution which shows that there were no independent witnesses to support the case of the prosecution witnesses who were the relatives of the deceased.
Bombay High Court
Pramod S/O Badriprasad Pal vs The State Of Mah, Thru Pso Korad on 24 April, 2019
Bench: Swapna Joshi
                                                                                                         CRI.APPEAL.652.06+
                                                                       1


                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         BENCH AT NAGPUR, NAGPUR.
                                                    ...

                                                  CRIMINAL APPEAL NO. 652/2006
                                                            with
                                                  CRIMINAL REVISION NO.315/2006

            CRIMINAL APPEAL NO. 652/2006

            Pramod s/o Badriprasad Pal
            Aged about 25 years, occu:
            R/o Tirupatinagar, Koradi Road,
            Nagpur.                                                                                             ..APPELLANT

                         versus

             The State of Maharashtra
             Through Police Station Koradi
             Dist. Nagpur.                                                                           ..          RESPONDENT
...............................................................................................................................................
             Mr. R.R. Vyas, Adv. for appellant
             Mrs.Mrunal Barabde, Additional Public Prosecutor for respondent-State
................................................................................................................................................


CRIMINAL REVISION NO.315/2006

            Shivpal Suraj Pardeshi
            Aged 51 years, occu: service
            R/o Plot No. 23
            Takiya, Waddhamana
            P.S. Wadi, Nagpur.                                                                                  ..APPELLANT

                         versus

1)          The State of Maharashtra
            Through P.S.O. Koradi
            Dist. Nagpur.

2)          Badriprasad Prabhagnath Pal
            Aged about 45 years




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                                                                                                          CRI.APPEAL.652.06+
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3)          Pramod Badriprasad Pal
            Aged about 24 years

4)          Sou. Rajkumari Badriprasad Pal
            Aged about 42 years

5)          Sou. Pramila Shivsagar Pal
            Aged about 20 years

             2 to 5 R/o Plot No.91
             Tirupatinagar, P.S. Koradi
             Nagpur (M.S. ). {Ori.Accused 1 to 4)                                                    ..          RESPONDENTS
...............................................................................................................................................
             Mr. R.H. Ravlani, Adv. for appellant
             Ms. Mrunal Barabde, Additional Public Prosecutor for respondent -State
             Mr. R.R.Vyas, Adv.for Respondents 2 to 5
................................................................................................................................................

                                                              CORAM: MRS.SWAPNA JOSHI, J.
                                                              DATE OF RESERVING : 4th April, 2019
                                                              DATE OF PRONOUNCEMENT: 24th April,2019

JUDGMENT:

1. Criminal Appeal No.652/2006 has been preferred by appellant

-Pramod, who is the husband of deceased-Deepa, against the judgment and order dated 31st October 2006 delivered by learned Ad-hoc District Judge-6 & ASJ Nagpur in Sessions Trial No. 467/2005 convicting the appellant (hereinafter referred to as “accused” under Section 498-A of the Indian Penal Code and sentencing to suffer RI for two years and to pay fine of Rs. 1000/-, in default, to suffer SI for one month.

Criminal Revision No.315/2006 has been preferred by the father of the deceased, namely, Shivpal Pardeshi against the State and all the four accused who were acquitted by learned trial Judge u/s 498-A and Section 304B, 306 read with Section 34 of the IPC and Section 3and 4 of the Dowry Prohibition Act,1961.

CRI.APPEAL.652.06+

2. Brief facts of the case may be summarized as under:-

The marriage of Deepa (deceased) with accused-Pramod was solemnized on 05.12.2004 as per the Hindu customs and rituals. During tilak ceremony an amount of R. 5051/- and some articles were given. Four days after the marriage when Deepa came to her parental home, she informed to her parents that her in-laws were making demand of Hero Honda motorcyle, gold chain and a colour TV. PW1- Shivpal, the complainant and father of deceased told Deepa that he would talk to her in-laws. In March 2005 i.e. one day before the festival of colours i.e. Holi, Deepa visited her parental home along with her husband. At that time, she informed her father that she was subjected to harassment at the hands of her in-laws for want of above-referred objects of desire. After four to five days, her husband and in-laws visited the house of PW1 to fetch Deepa. At that time, PW1 gave one gold chain weighing 12 grams and new clothes to the accused-Pramod. In April 2005, Deepa again visited her parental home and told PW1 that her husband was unable to maintain her and was pressing her for doing a job. On 27.5.2005 Deepa along with the accused suddenly came to the house of PW1 and at that time accused -Pramod demanded vehicle and TV from PW1. The accused further said that if he was not in a position to fulfill his demand then he should build two rooms for him. Deepa informed to her father that her mother-in-law had asked her to bring an amount of Rs.1,50,000 from PW1 which was spent in the marriage, otherwise she should permanently reside at her parental home. On 30.5.2005 at about 11.30 am., PW1 received a phone call from the house of Deepa that she was not keeping good health. When PW1 went to CRI.APPEAL.652.06+ the house of Deepa she was dead. PW1 then lodged the complaint against accused- Pramod and in-laws of Deepa.

3. At the relevant time, PW9 PSI Vidyasagaar Shrimanwar was attached to Koradi Police Station. On the basis of report of PW1, he registered the offence and arrested the accused on the same day. PW9 recorded the statements of relevant witnesses. On 31.5.2005 PW6, PSI-Gulab Wadke, visited the place of the incident and recorded the spot panchnama. One PSI Mamore (not examined) had sealed one almirah at the time of recording the spot panchnama on 10.6.2005. PW6 broke opened the seal of the almirah and seized one glass bottle 375 ml. capacity containing 75 ml. liquid. Accordingly, seizure panchnama was prepared (Exh.33). The said bottle was sent to CA for analysis and the CA reports were secured (Exhs. 61 and 62). After completion of investigation, charge-sheet was filed in the Court of JMFC. Since the case was exclusively triable by Court of Sessions, the same was committed to the Court of Sessions. Charge was framed. The defence of the accused was of total denial and no witnesses were examined on their behalf. The learned trial Judge after recording the evidence and hearing both sides, convicted the appellant and acquitted the other accused, as aforesaid.

4. I have heard learned counsel for the respective parties, at length. With their able assistance, I have gone through the record and proceedings of the case. Mr. R.R.Vyas, learned Advocate for accused vociferously argued that the learned CRI.APPEAL.652.06+trial Judge has not assessed the evidence led by the prosecution in its right perspective and has erroneously convicted accused-Pramod, although on the same set of facts and circumstances, the remaining accused i.e. in-laws of the deceased were acquitted. It is submitted that there is no consistent and cogent evidence against the accused to show that they treated Deepa with cruelty inasmuch as the cruelty was of such a nature that she was driven to commit suicide. He further submitted that there is no question of demand of dowry as the accused were well-aware of the precarious financial condition of the father of the deceased (PW1). It is further submitted that the prosecution has failed to prove the cause of death of Deepa. The PM report no doubt shows the probable cause of death as death ‘due to poisoning’; however, the CA report does not reflect any poisonous material. No poison was found in the viscera of the deceased. In these circumstances, it is submitted that the prosecution has failed to prove the cause of death of Deepa, that is, whether Deepa died accidental, suicidal or homicidal death as she was suffering from epilepsy and was taking medicine for curing it. In these circumstances, it is submitted that the accused-Pramod be acquitted of the offence punishable u/s 498A of IPC. It is further submitted that since the scope in Revision is very limited and as no perversity is noticed in the impugned judgment, while acquitting the accused, no relief can be granted in favour of the complainant.

5. Mr. R. H. Ravlani, learned Advocate for the complainant father of the deceased, vehemently contended that there is ample evidence on record to show that the accused committed the alleged offence. He submitted that although there is CRI.APPEAL.652.06+sufficient evidence against the in-laws of the deceased, the learned trial Judge has failed to assess the same in its proper perspective and has erroneously acquitted the accused. He further submitted that there are allegations against the accused that they demanded dowry from the complainant (PW1) and for the said dowry they harassed the deceased due to to which she took the extreme step. It is submitted that death of Deepa under unnatural circumstances lends credence to the presumption that it was a dowry death. It is submitted that although the CA report does not support the case of the prosecution however the fact remains that Medical Officer Ninad Gawande (PW8) has opined the probable cause of death due to poisoning which indicates that Deepa died a suicidal death.

6. Mrs.Mrunal Barabde, learned APP supported the contentions raised by Mr. Ravlani.

7. At the outset, as far as Revision preferred by the complainant who is the father of deceased, is concerned, the law for preferring Revision is well-settled. In the case of K.Ramchandran vs V.N. Rajan and another, reported in (2009) 14 SCC 569, wherein the Hon’ble Apex Court held as under :-

“39. We have also considered the judgment of the learned Single Judge on merits of the matter. In a revision against acquittal preferred by a private party, there is a very little scope to interfere. Here was a case where the learned single Judge disapproved of the appreciation of the evidence by the trial court. It is not as if the trial court had ignored any important piece of  evidence or it had chosen not to appreciate the same. It is again not as if there was any piece of evidence which was illegally not permitted to come on record. Again, it is also not a case where there was some serious defect in the trial affecting the merits of the matter. Further, the Court trying the appellant-accused did not lack the jurisdiction also to try and convict or acquit the appellant-accused. All that the High Court has observed is that the appreciation of evidence by the trial court was not correct and the trial court should not have taken the view that it has taken of the evidence.

40. This question has been considered in the celebrated judgment of Akalu Ahir vs. Ramdeo Ram (1973) 2 SCC 583;

where, after considering the judgments of D. Stephens vs,. Nosibolla: AIR 1951 SC 196; Logendranath Jha v. Polai Lal Biswas; AIR 1951 SC 316; K. Chinnaswamy Reddy v. State of A. P. ; AIR 1962 SC 1788 and Mahendrarapatp Singh v. Sarju Singh AIR 1968 SC 707, this Court came out with categories of cases which would justify the High Court in interfering with the finding of acquittal in revision :Akalu Ahir case ( supra) para8).

“(i) where the trial court has no jurisdiction to try the case, but has still acquitted the (appellant)-accused;

(ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce;

(iii) Where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible;

(iv) where the material evidence has been overlooked only ( either) by the trial court or by the appellate court; and CRI.APPEAL.652.06+

(v) where the acquittal is based on the compounding of the offence which is invalid under the law.

Of course, these categories were declared by this Court to be illustrative and this Court observed that other cases of similar nature could also be properly held to be exception in nature where the High Court could justifiably interfere with the order of acquittal.”

Needless to mention, keeping in mind the aforesaid guidelines, the Revision preferred by the complainant has to be decided.

8. In order to consider the rival contentions of both sides, it would be advantageous to go through the evidence led by the prosecution witnesses. At the outset, it would be appropriate to verify whether Deepa died under unnatural circumstances. It is the case of the prosecution that Deepa died due to consumption of poison, whereas it is the case of the accused that Deepa was suffering from epilepsy and used to consume medicines for the epilepsy attacks. In order to prove that Deepa died an unnatural death, the prosecution relied upon PM report (Exh. 41) which shows the probable cause of death as due to poisoning. It is stated that the final report shall be given after Chemical Analysis report is made available. In this context, the evidence of PW8-Dr.Ninad Gawande shows that on internal examination he noticed that stomach contained 300 ml greenish coloured fluid having turpentine like odour. The brain was found congested at edematous weighing about 1200 gms and the trachea was lying with red coloured fine froth. On the basis of aforesaid observations and symptoms, PW8 opined the probable cause of death, due to poisoning. He reserved his opinionCRI.APPEAL.652.06+ so far as final cause of death is concerned. PW8 fairly stated that the CA report of viscera (Exh.61) reveals no poison. He admitted that if no positive signs of poison are exhibited, it is advisable to send viscera to CA for analysis. He further admitted that the chemical analysis has not disclosed that the viscera has odour of turpentine. Thus, since there were no positive signs of poison, PW8 has sent the viscera to CA for its confirmation. Significantly, in the CA report (Exh.61) there is no mention that viscera had odour of turpentine. On the contrary, the CA report (Exh.62) did not reveal any poison in the viscera of stomach, intestine, liver, spleen and kidney. In this context, it would be fruitful to note that from the place of incident, from the cupboard which was locked when the spot Panchnama was conducted, on opening it, a glass bottle was found having some liquid. It is the case of the prosecution that Deepa must have consumed the said liquid contained in the said bottle and due to the consumption of the said liquid, she died. Significantly, the said bottle was seized and was sent to CA for analysis and ethyl alcohol was found in the said bottle. Thus, there is no evidence on record to show that Deepa died due to consumption of poison. It is not clear as to from where Deepa brought the poison and consumed it. In fact, the liquid which was found in the bottle kept in the cupboard situated in the bedroom of Deepa, showed the residues of ethyl alcohol which is certainly not a poison.

9. Now coming the case of the accused that Deepa died due to epilepsy attack, appears to be probable one. It is not seriously disputed that as Deepa was suffering from epilepsy, she was hospitalized on 5.3.2005 for treatment, as admitted by her father PW1. Exhs. 52 and 53 are the medical papers in respect of treatment given CRI.APPEAL.652.06+ to Deepa on the ailment of epilepsy as the medicine ‘pantrizo’ .was prescribed for anxiety disorder. In this context, the Medical Officer-PW8 opined that in cases of epilepsy patient may undergo coma and the death by suicide is considered to be natural cause of death. In these circumstances, it is held that the prosecution has failed to prove that Deepa died a suicidal death. An useful reference of the judgment reported in (1982) 2 SCC 396, in the case of Mayur Shah vs. State of Gujarat, can be made wherein it is held that there is no irrebuttable presumption that a Doctor is always a witness of truth.

10. In order to establish that the accused ill-treated Deepa by demanding dowry, the prosecution has heavily replied upon the testimony of PW1-Shivpal. PW1, the complainant and father of Deepa deposed that Deepa married with accused Pramod on 05.12.2004 at Waddhamana. After marriage she started residing at Tirupatinagar, Nagpur. It was a joint family inasmuch as the in-laws were also residing with them. Four days after the marriage, Deepa told PW1 that the accused expressed their grievance that since PW1 has not presented articles, such as, gold chain, motorcycle, colour TV etc. some time in April/ May 2005, Deepa along with Pramod visited the house of PW1. Pramod asked him that if he had no capacity to fulfill his demand, in that event, he should build two rooms for him. PW1 then talked to the father of the accused and asked him why Deepa was being harassed. The in-laws and husband of Deepa visited his house for Holi festival. As per the demand PW1 offered gold chain and one and a half tola to the accused. He too honoured the in- laws of Deepa by presenting clothes. Deepa then went with the accused. On CRI.APPEAL.652.06+30.5.2005 PW1 came to know that Deepa expired. He rushed to the hospital and found that Deepa’s skin colour had turned into green and as such, he suspected that she must have been forced to consume poison. PW1 then lodged report at Koradi Police Station (Exh. 50).

11. PW1 admitted that he knew the accused even prior to marriage as well as their business and financial capability. PW1 further admitted that at the time of marriage negotiations, there was no talk of dowry. In these circumstances, there was no reason for accused Pramod to suddenly demand gold chain. The said version of PW1 regarding demand of dowry does not appear to be convincing.

12. During the cross-examination, improvements were pointed out in the version of PW1 that he conveyed the demand of accused to his father and also complained about the ill-treatment extended by the accused. An improvement was found in the testimony of PW1 to the effect that he presented the gold chain since it was demanded. The said improvement goes to the root of the case of the prosecution and it creates a serious doubt about the demand of gold chain by the accused- Pramod from PW1 and PW1 presenting it to the accused. It was suggested to PW1 that during the marriage ceremony, Deepa became unconscious and fell down. On this, PW1 volunteered that son of accused no.1, namely, Santosh picked up quarrel in the said marriage and created a chaos. The people started running here and there and accused Pramod also got up from the stage. The said scene had badly affected mental condition of Deepa, so she became unconscious. From the said episode, the question remains as to why Deepa became unconscious. Although PW1 denied that CRI.APPEAL.652.06+ Deepa was suffering from convulsion disease since child-hood, from the medical papers, it appears that Deepa was suffering from some mental illness. It is the case of the accused that Deepa was suffering from convulsion disease and PW1 had suppressed the said fact from the accused. It also appears that PW1 admitted Deepa in Usha Memorial for her medical treatment and he had suppressed the said disease from the accused.

13. The testimony of PW2, who is the mother of deceased Deepa, shows that four days after the marriage, Deepa came to her house and complained that the accused were blaming that they had spent Rs. 1.5 lakhs, but was not presented a gold chain and Hero-Honda motorcycle. She further deposed that in February, 2005 ori. accused no.1-Bardriprasad telephoned informing her that Deepa was not well. PW2 deposed that her husband visited the house of Deepa at 11.00 pm; Deepa was found lying unconscious, so she was admitted in Usha Memorial. After three days, Deepa was brought by them to their house. Deepa again complained that the accused were harassing her for gold chain, motorcycle and TV. Deepa persuaded them that when they will offer chain to the accused they should also give TV and motorcycle else they would kill her by poisoning. She also complained that her husband used to force her to bring TV and motorcycle or else he would kill her by poisoning. In this context, it is significant to note that the version of PW2 that the accused said that they had spent Rs.1.5 lakhs, does not find place in the testimony of PW1-Shivpal, father of deceased. Similarly, the evidence of PW1 does not show that the accused threatened Deepa to kill her by poisoning if she failed to bring TV and motorcycle. PW2 deposed that onCRI.APPEAL.652.06+ 27.5.2005 Deepa and appellant-Pramod visited her house. Deepa again complained that her mother-in- law threatened her not to return unless her parents give her Rs. 1.5 lakhs. Appellant-Pramod also demanded Hero Honda motorcycle. She stated that they were not rich enough to give motorcycle. PW 2 deposed that because of their attitude Deepa was reluctant to go to her matrimonial house, therefore, they sent Kirti Pardeshi (PW3), elder sister, with them. The aforesaid version of PW2 with regard to the incident dated 27.5.2005 has not been stated by PW1 who has lodged the complaint. Thus, there is no corroboration to the version of PW2, by PW1.

14. According to PW2, on 29.5.2005, she along with her sister went to the house of Deepa. The accused persons picked up quarrel with them. They blamed that they have failed to pay Rs.1.5 lakhs. Deepa also informed them that the accused were harassing her for Rs.1.5 lakh and she would not remain there any more. PW2 however returned back home with PW 3-Kirti. PW2 deposed that on 30.5.2005 she received a phone call that Deepa was serious. When she reached there she saw the dead body of Deepa lying in the front room. Her skin was found to be greenish. PW2 then lodged the report in the Police Station. Significantly, the prosecution has failed to produce the report lodged by PW2 in the Police Station. The prosecution has suppressed the true genesis of the crime. Moreover, it is not clear as to why PW2 failed to lodge the complaint against the accused if at all they were harassing her daughter for Rs. 1.5 lakhs and the other objects of desire.

15. The testimony of PW3-Ku.Kirti Pardeshi, depicts that four days after the marriage, Deepa complained against the accused stating that they were harassing CRI.APPEAL.652.06+ her for chain, motorcycle, ring and Rs. 1 lakh which they had spent in marriage. Deepa was then hospitalized for two months thereafter. She was brought at her parental home. Deepa became very weak. On enquiry, Deepa informed her that whenever she takes meals, the accused used to pass sarcastic comments on Deepa. According to PW3 when Deepa visited their house on 27.5.2005 along with her husband, she informed her parents that her in-laws were threatening her to bring Rs. 1 lakh from her parents which they had spent in marriage else to remain at her parental house. Significantly, the said version of PW3 does not find place in the versions of PW1 and PW2. PW3 stayed with Deepa till 29.5.2005 and noticed that appellant-Pramod used to talk rudely with Deepa wth regard to dowry. The said version of PW3 seems to be a general statement made by her. On 29.5.2005, her mother came to the house of the accused and requested them not to torture Deepa. She then returned with her mother to her house on the next day morning. PW3 then received a telephonic message that Deepa was serious. When they reached the house of Deepa, she found her dead body lying in her bed room. The testimony of PW3 shows that she did not speak about her maternal aunt, whereas PW2 states that her sister also accompanied them to the house of Deepa. PW3 no doubt speaks about the rude behaviour of the accused, however, failed to quote any specific instance against the accused.

16. The testimony of PW5-Sarika Pali shows that Deepa met her four to five days prior to her death along with her husband. Deepa informed PW5 that the accused were harassing her for colour TV and hero Honda motorcycle. They were blaming her parents that if they are not in a position to present the said articles they CRI.APPEAL.652.06+ should offer two room block. An improvement was brought in the testimony of PW5 in her cross-examination that Deepa and her husband had been to her house and blamed the accused. It was further admitted by PW5 that whatever she had stated before the court was never disclosed by her to anyone. The said version of PW5 makes her entire testimony doubtful.

17. Now coming to the allegations against the accused that they had ill- treated Deepa which led her to commit suicide, it would be advantageous to go through the provisions under section 498-A of the Indian Penal Code. In this regard, Section 498-A of the Indian Penal Code reads as under :

“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.

Explanation.- For the purposes of this section. “cruelty” means –

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

Keeping in mind the aforesaid provision under section 498-A of the Indian Penal Code, the testimony of the prosecution witnesses is scrutinized cautiously CRI.APPEAL.652.06+ and found that the prosecution has failed to make out a cogent case against the accused.

18. In this context, an useful reference can be made to the judgment in the case of Ravindra Pyarelal Bidlan & others vs. State of Maharashtra, reported in 1993 Mh.L.J. 658, more particularly para no.26 thereof , which reads thus:-

“26. Sub-clause (b) of the explanation to Section 498A provides that cruelty means harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Sub-clause(b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely, to coerce the woman or any person related to her to meet any unlawful demand. Hence, mere harassment by itself is not cruelty. Mere demand for property etc, by itself is also not cruelty. It is only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that is cruelty and this made punishable under the Section. In other words, it is not every harassment or every type of cruelty that would attract section 498A. It must be established that the beating or harassment was with a view to force the wife to commit suicide or to fill illegal demands of the husband or the in-laws.”

As discussed above, in the instant case, there is no convincing evidence on record to show that Deepa was ill-treated by coercing her to meet the demands at the hands of the accused.

CRI.APPEAL.652.06+

19. Now, so far the allegations of dowry deaths are concerned, in the case of Appasaheb and another vs. State of Maharashtra, reported in AIR 2007 SC 763, what was allegedly asked for by the accused-husband and mother-in-law of deceased was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz, demand for dowry was not established, the conviction of the appellants could not be sustained. Paragraph No.6 of the said judgment reads thus:

“6. Two essential ingredient of Section 304-B IPC, apart from others, are (i) death of women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) women is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for “dowry”. The explanation appended to sub-section (1) of Section 304-B IPC says that “dowry” shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961. Section 2 of Dowry Prohibition Act reads as under :-

“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 parent 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 dowry or mahr in the case of persons to whom the Muslim Personal Law (shariat) applies.

CRI.APPEAL.652.06+ In view of the aforesaid definition of the word “dowry” any 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. ….

A demand for money on account of some financial stringency or for meeting some urgent domestic expenses of for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood.”

20. In the case of Sunil Bajaj vs. State of M.P., reported in AIR 2001 SC 3020, it is held by Hon’ble Apex Court that when no offence was made out, it becomes necessary to disturb such order of conviction and sentence to meet the demand of justice. It is only when the ingredients of Section 304B are established by acceptable evidence such death shall be called “dowry death” and such husband or his relative shall be deemed to have caused her death. (para 5 and 6)

21. In the case of State of Rajasthan vs. Teg Bahadur and others, reported in (2004 13 SCC 300, Para no.18 thereof reads thus, “Our attention was drawn to Section 113B of the Evidence Act and Section 304B of the Indian penal Code by the learned counsel appearing for the accused. A conjoint reading of Section 113B of Indian Evidence Act and Section 304-B of the Indian Penal Code shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to be rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances..”…..

22. In State of A.P. vs. Raj Gopal Asawa and another, reported in (2004) 4CRI.APPEAL.652.06+ SCC 470, the Hon’ble Supreme Court para 10 and Para 11 observed thus,

10. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:-

“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 has 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).”

The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10th August, 1988 on ‘Dowry Deaths and Law Reform’. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of ‘dowry death’ in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand of dowry”. Presumption under Section 113-B is a presumption of law. On proof of the essentials CRI.APPEAL.652.06+ mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: (1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).

(2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death.

11. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’. The expression ‘soon before’ is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. ‘Soon before’ is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression ‘soon before her death’ used in the substantive Section 304- B IPC and Section 113-B of the Evidence Act isCRI.APPEAL.652.06+ present with the idea of proximity test. No definite period has been indicated and the expression ‘soon before’ is not defined. A reference to expression ‘soon before’ used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods ‘soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term ‘soon before’ is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.

23. In the case of Rajinder Singh vs. State of Punjab, reported in 2016(1) Mh.L.J. (Cri) (S,.C.) 169, the Hon’ble Supreme Court, in para 23, observed as under :

“What must be borne in mind is that the word “soon” does not mean “immediate”. A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of section 304B would make it clear that the expression is a relative expression. Time lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304B”

CRI.APPEAL.652.06+ In the present case, prosecution has failed to establish that soon before her death, Deepa was subjected to cruelty.

24. Learned counsel Mr.Ravlani, placed reliance upon the judgment, in the case of Dhanraj Ghadge and another vs. State of Maharashtra, reported in 2014(4) Mh.L.J. 375. In that case, it was held that since medical evidence showed victim-lady sustained bodily injury and death was not in normal circumstances, the onus lies on appellant-accused to explain injuries caused on person of victim. In the instant case there is no such case of injuries on the person of deceased. Reliance was further placed on the judgment, in the case of Hari Om vs. State of Haryana and another, reported in 2015(2) Mh,.L.J.(Cri) 479, wherein it is held that wife committing suicide within period of one month from marriage by consuming poison, conviction based on evidence of suicide note left by deceased. In that case, there was direct nexus between death of deceased, demand of dowry and suicide note containing reasons for her suicide. It was duly proved that suicide note was in own handwriting of deceased and offence u/ss. 304B and 498A proved against the appellant. The facts in the present case differ from that case. Hence, this case law is not helpful. The case laws relied upon by learned Advocate are of no relevance to the case of the prosecution.

25. The overall assessment of the prosecution witnesses reveal that their testimony is not in consonance with each other. There are material discrepancies in  their testimony which go to the root of the prosecution case and creates a serious doubt about demand of dowry made by the accused. Significantly, if at all it was the case of the prosecution witnesses that the Deepa was subjected to cruelty soon before her death, it is not clear as to why the parents of Deepa had not lodged any complaint in the police station that Deepa was ill-treated by the accused and the ill-treatment was of such a nature that drove her to commit suicide. As already discussed above, the prosecution has failed to prove its case beyond reasonable doubt. As far as the investigation is concerned, the Investigating Officer PW6-Gulab Wadke, PSI, shows that he admitted that he has not annexed statements of neighbours as they were not supporting the prosecution case. The said version of PW6 indicates that the statements of neighbours were not recorded by Investigating Officer as they were not supporting the case of the prosecution which shows that there were no independent witnesses to support the case of the prosecution witnesses who were the relatives of the deceased.

26. In view of the above facts and circumstances as discussed above, Criminal Appeal No.652/2006 needs to be allowed and Criminal Revision No. 315/2006 is to be dismissed. Hence, the following order is passed:-

ORDER

(i) Criminal Appeal No. 652/2006 is allowed.

(ii) The impugned judgment of conviction and sentence dated 31 st October, 2006 passed by learned Ad-hoc District Judge-6 & ASJ, Nagpur, is set aside. The appellant is acquitted of the offence punishable u/s 498A of IPC.

CRI.APPEAL.652.06+

(iii) The fine amount if paid, shall be refunded to the accused.

(iv) The appellant is on bail. His bail bonds shall stand cancelled.

(v)        Criminal Revision No.315/2006 is dismissed.




                                                                 JUDGE



sahare

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