HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- CRIMINAL REVISION No. - 148 of 2000 Revisionist :- Gendan Lal Maurya Opposite Party :- The State Of U.P. Counsel for Revisionist :- S.K.Tripathi Counsel for Opposite Party :- Govt Advocate, D.C. Tewari, Jayant Kumar Shahi, K.P. Maurya,Manish Bajpai, Neha Dhanwani, Rajesh Kumar, Seema Trivedi,V.K.Sahi Hon'ble Dinesh Kumar Singh,J.
1. The present revision has been filed by the complainant against the judgement and order dated 5.2.2000 passed by the Special Judge (E.C. Act)/Additional District & Sessions Judge, Hardoi in Session Trial Nos.108 of 1985 and 695 of 1996, whereby the accused have been acquitted under Sections 498-A, 304-B IOC and Section 3/4 Dowry Prohibition Act.
2. First Information report was registered on 31.3.1994 at Police Station Sandila against five accused on a written compliant by father of the deceased i.e. P.W.-1, Gendan Lal Maurya alleging that the deceased Sunita, who was married to accused, Naresh S/o Shyam Lal two and a half years before the date of incident, was killed by the accused on 30.3.1994 for dowry demand. The deceased had nine months old son at the time of her death. The autopsy was performed on the dead body of the deceased and no ante-mortem injury was found. VISCERA was persevered for examination. However, a six months female fetus was present in the womb of the deceased. On examination of VISCERA, Aluminum Phosphate was found. Thus, the death of the deceased was caused due to consumption of poison, Aluminum Phosphate.
3. The only witness of fact was examined in support of the prosecution case i.e. complainant, father of the deceased. In his examination, he had said that he got the report written by himself and gave it at the police station, on the basis of which the F.I.R. was registered against the accused. It is important to mention here that the complainant did not mention any specific demand in the written report, however, in his statement before the Court, he said that the accused were demanding Rs.25,000/- cash and Rajdoot motorcycle. He had further said that at the time of marriage, sufficient dowry was given including cash and a Moped.
4. Shyam Lal and Smt. Rekhana, who were father-in-law and mother-in-law of the deceased, are no more. Hemraj is elder brother of Naresh and Kamla Devi is wife of Hemraj. Two charge sheets were filed; one against Naresh, husband of the deceased and Shyam Lal, father-in-law and Smt. Rekhana, mother-in-law and another charge sheet was filed against Hemraj and his wife Kamla Devi.
5. On the basis of the evidence adduced in defence of Hemraj and his wife, the trial court had concluded that Hemraj and his wife were not living with Naresh and other co-accused and they were living at Tehsil Headquarter. On 30th and 31st March, 1994, Hemraj was on duty and was not present at the place of incident. The trial court after analysing the evidence, has recorded a finding that the demand of dowry could not be established inasmuch as there was contradiction in the statement of P.W.-1 and in the F.I.R. version. Therefore, the trial court did not believe the prosecution story of the demanding dowry of Rs.25,000/- and motorcycle particularly when the Moped was already given at the time of marriage, which took place two and a half years back. The trial court after scrutinizing the evidence closely, came to the conclusion that once the prosecution had failed to prove the case of dowry demand and there was no ante-mortem injury found on the body of the deceased, the prosecution could neither prove the demand of dowry nor torture by the accused to the deceased for dowry demand and, therefore, it had acquitted the accused.
6. I have heard learned counsel for the parties and perused the record.
7. Section 304-B I.P.C. defines dowry death as under :-
“304B. 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 purpose 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.]”
8. Section 498-A I.P.C. provides as under :-
“498A. 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 purpose of this section, “cruelty” means–
(a) any wilful 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.]”
9. The ingredients of dowry death as provided under Section 304-B I.P.C. are; (i) death of the woman concerned is by any burns or bodily injury or by any cause other than in normal/natural circumstances and; (ii) is within seven years of her marriage and; (iii) that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of the husband for, or in connection with, any demand for dowry.
10. The offence under Section 498-A I.P.C. is attracted against the husband or his relative if she is subjected to cruelty. The explanation to this Section is relevant to gather the meaning and nature of cruelty for which a person can be convicted under Section 498-A I.P.C.
11. The dowry has been defined under Section 2 of the Dowry Prohibition Act. Thus, under Sections 304-B and 498-A I.P.C., cruelty or harassment by the husband or any of his relative for or in connection with any demand of dowry is gravamen of the two offences.
12. Section 113B of the Indian Evidence Act enjoins a statutory presumption as to dowry death in following terms:-
“113B. 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.
13. A conjoint reading of Sections 304-B, 498-A I.P.C. and Section 113B of the Indian evidence Act makes it clear that there is burden on the prosecution to substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113B of the Evidence Act against the accused. Proof of cruelty or harassment by the husband or her relative is sine qua non to draw the statutory presumption under Section 113B of the evidence Act. If the prosecution fails to prove by cogent and persuasive evidence to prove the ingredients of dowry demand and cruelty therefor, the accused cannot be held guilty for the offences under Sections 304-B and 498-A I.P.C.
14. The Supreme Court in the case of Vipin Jaiswal (A-1) vs. State of Andhra Pradesh represented by Public Prosecutor, (2013) 3 SCC 684 while dealing with the ingredients of Sections 304B and 498-A I.P.C. held as under :-
“9. 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, TV, 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-typing 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, PW 4 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 PW 1 and PW 4 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 304-B 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 304-B 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.
10. This Court has held in Appasaheb v. State of Maharashtra [(2007) 9 SCC 721 : (2007) 3 SCC (Cri) 468] : (SCC pp. 726-27, para 11) “11. 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. 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) 10 SCC 413 : AIR 1996 SC 3509] and Chemical and Fibres of India Ltd. v. Union of India [(1997) 2 SCC 664 : AIR 1997 SC 558] .)”
11. In any case, to hold an accused guilty of both the offences under Sections 304-B and 498-A IPC, the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. From the evidence of the prosecution witnesses, and in particular PW 1 and PW 4, we find that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific acts of cruelty or harassment by the appellant on the deceased.”
15. The Supreme Court in the cases of Shindo alias Sawinder Kaur and another v. State of Punjab (2011) 11 SCC 517 and Rajeev Kumar v. State of Haryana (2013) 16 SCC 640 spelt out the ingredients of the offence under Section 304-B and scope of purport of 304-B read with Section 113B of the Evidence Act. It has been held that to draw the presumption under Section 113B of the Evidence Act, the prosecution has to prove the ingredients of offence under Section 304-B I.P.C. It has been further held that one of the essential ingredients of the dowry death under Section 304-B I.P.C. is that the accused must have subjected the woman to cruelty in connection with dowry demand soon before the death. This ingredient is required to be proved by the prosecution beyond reasonable doubt and then only the Court would presume that the accused has committed the offence of the dowry death.
16. From the evidence led by the prosecution, the trial court has held that the prosecution has failed to establish that the deceased was subjected to cruelty for dowry death soon before her death. Further the trial court has held that the accused Hemraj and his wife Kamla Devi were not present when the deceased had committed suicide. Considering the aforesaid evidence, the trial court has acquitted the accused.
17. I have perused the judgement and order passed by the trial court carefully and gone through the evidence.
18. I do not think that the trial court has committed any error for which this Court should exercise its revisional jurisdiction to interfere with the impugned judgement and order dated 5.2.2000.
19. In view thereof, I do not find any substance in this revision, which is hereby dismissed.
( Dinesh Kumar Singh, J.) Order Date :- 19th August, 2019 Rao/-