THE HON'BLE SRI JUSTICE K.LAKSHMAN
CRIMINAL PETITION No.12287 of 2018
ORDER:
This criminal petition is filed under Section 482 of Cr.PC to quash the proceedings in S.C.No. 84 of 2017, pending on the file of V Additional District and Sessions Court, Bhongir, Nalgonda District. The petitioners herein are accused Nos.1, 3 and 4 in the said case. The offences alleged against them are under Sections 304-B and 302 of IPC.
2. The allegations against the petitioners herein as per the complaint dated 26.03.2017 and charge sheet are as follows:
The marriage of the deceased with accused No.1 was performed on 12.02.2012. It is an arranged marriage. Thereafter, petitioner No.1 and the deceased lead their married life for one year and they were blessed with a baby girl.
Petitioner No.1/A-1, petitioner No.2/A-3 (mother of petitioner No.1) and petitioner No.3/A-4 (sister of petitioner No.1) and accused No.2 - died (father of petitioner No.1) started harassing the deceased by demanding her to bring additional dowry of two tulas of gold from her parents. L.Ws.1 and 2, the parents of the deceased, expressed their inability to fulfill their demand in view of their poor financial condition. Because of the said reason, accused Nos.1 to 3 used to pickup quarrel with L.Ws.1 and 2 and the deceased. Accused Nos.1 to 3 purchased an under construction house at Alair Village and Mandal, and for the said purpose, they have sold five tulas of gold belonging to the deceased.
2 After completion of construction of the said new house, accused Nos.1 to 3 along with the deceased shifted to Alair and started living in the newly constructed house. While so, on 14.09.2014, the deceased consumed poison and she was admitted in Aditya Hospital, Hyderabad. On enquiry, the deceased has informed L.Ws.1 and 2 that in the absence of her husband, accused No.2 misbehaved with her and due to which, she consumed pesticide poison. Thereafter, the deceased has lodged a complaint with Police, Alair, who in turn registered a case in Crime No.134 of 2014, for the offences under Section 498-A of IPC.
On completion of investigation, they have filed charge sheet and the same was taken on file vide C.C.No.534 of 2014. During the pendency of the said CC, a panchayat was held in the presence of the elders and mediators and in the said panchayat, accused Nos.1 to 3 promised L.Ws.1 and 2 that they will not harass the deceased hereafter and accordingly entered into a compromise. In view of the same, the said CC.No.531 of 2014 ended in acquittal.
Thereafter, petitioner No.1 and the deceased shifted to Saidgudem Village, Alair Mandal for some time. Even at Saigudem, petitioner No.1 subjected the deceased to both physical and mental harassment and insisted deceased for shifting to Alair to live with his parents.
Knowing about the harassment, L.Ws.1 and 2 again approached elders and mediators and held a panchayat wherein it was decided that all the family members i.e., A- 1 to A-4 shall live at Alair. Thereafter, the deceased blessed with a baby boy. Like earlier, accused Nos.1 to 4 started harassing the deceased demanding her to bring 3 two tulas of gold. Later, accused Nos. 1 to 4 again shifted to Saigudem by constructing a new house in the place of old house. Even there, A-1 to 4 continued harassing the deceased.
On 26.03.2014 at about 21.30 hours, accused Nos.1 to 4 picked up quarrel with the deceased for her failure to bring additional dowry. Later, when the deceased went to the roof top for bringing the clothes, accused No.1 followed her, where he again demanded the additional dowry of two tulas of gold. On that, the deceased quarreled with accused No.1, where accused No.1 got angry and pushed her while she was getting down the stairs, due to which the deceased received internal injuries. Immediately, accused No.1 shifted her to Gandhi Hospital, Secunderabad, where she died on intervening night of 26/27-03-2017.
As per the confession of accused No.1, it is revealed that accused No.1 pushed the deceased from the stairs, due to which she sustained internal injuries and thereby died in Gandhi Hospital. Post-mortem Examination report also discloses the said fact. Initially, though the case was registered under Section 304-B of IPC, later Section 302 of IPC was added.
During the course of investigation, the Police have examined parents of the deceased as L.Ws.1 and 2, brother of the deceased as L.W3, caste elders as L.Ws.4 to
6. The Police have laid a charge sheet against the petitioners herein for the offences under Sections 302 and 304-B of IPC.
3. Sri Ch.Venkat Raman, learned counsel for the petitioners, referring to the contents of the complaint 4 dt.26.03.2017 and charge sheet, would submit that there are contradictions with regard to cause of death. Medical report also did not support the version of the prosecution. There is no mention about the harassment of the deceased before her death. The contents of the charge sheet lack the ingredients of Sections 302 and 304-B of IPC. None of the witnesses spoke about the alleged harassment of the deceased by the petitioners herein. Accused No.2/father of accused No.1 died. There are no allegations, much less specific allegations, against petitioner No.3/sister of accused No.1. Petitioner No.3 herein is married and she has nothing to do with the matrimonial life of accused No.1 and the deceased. With the said contentions, learned counsel for the petitioners sought to quash the proceedings in S.C.No.84 of 2017 against the petitioners herein.
4. Despite service of notice, none appears for the respondent No.2.
5. Learned Assistant Public Prosecutor, on instructions, would submit that there are specific allegations against the petitioners herein and there are several triable issues which are to be adjudicated by the trial Court during full-fledged trial. The Investigating Officer, during the course of investigation has examined almost seventeen witnesses. Basing on the said statements, the Police have laid the charge sheet. The contents of the charge sheet constitute the offences under Sections 304-B and 302 of IPC. He would further submit that 5 the petitioners herein instead of facing the trial and proving their innocence approached this Court by filing the present petition under Section 482 Cr.P.C to quash the proceedings in S.C.No.84 of 2017. With the said contentions, he sought for dismissal of the present criminal petition.
6. The above said facts would reveal that the marriage of the deceased with petitioner No.1 was performed on 12.02.2012. Even as per the contents of the charge sheet, petitioner No.1 and the deceased lived happily for one year and they were blessed with a baby boy. Thereafter, according to the de facto complainant, accused Nos.1 to 4 started harassing the deceased demanding additional dowry of two tulas of gold. It is also specifically mentioned in the charge sheet that petitioner Nos.1 and 2 and accused No.2 have sold five tulas of gold belonging to the deceased for the purpose of construction of a house at Alair. After completion of construction of house, the petitioners herein, the deceased and accused No.2 shifted to Alair. There is a specific allegation against accused No.2 that in the absence of petitioner No.1/husband of the deceased, he has misbehaved with the deceased, due to which the deceased consumed pesticide poison. Subsequently, she has lodged a complaint with the Police, Alair, who in turn registered a case in Crime No.134 of 2014 for the offence under Section 498-A of IPC. But, the said case was ended in compromise with the intervention of elders and well wishers. Thus, there are strained relations between the petitioners and deceased family. 6 After compromise, they have shifted to Saigudem, the native place of petitioners herein. According to the complainant, accused No.1 again started harassing the deceased both physically and mentally demanding her to get additional dowry. When the said fact was brought to the notice of the elders and well wishers, they have settled the matter during the pendency of C.C.No.531 of 2014 (arising out of Cr.No.134 of 2014). During the said panchayat, the petitioners, accused No.2 and deceased have decided to stay at Alair and accordingly they have shifted to Alair. Thereafter, the deceased and petitioner No.1 were blessed with a baby boy. The allegation against accused No.1 is that on 26.03.2017, he picked up a quarrel with the deceased demanding additional dowry of two tulas of gold and during their quarrel, accused No.1 in anger, pushed the deceased from the stairs, due to which she sustained internal injuries and died in Gandhi Hospital. Thus, accused No.1 has committed the offences under Sections 302 and 304-B of IPC. It is also relevant to note that the Police have filed alteration memo adding Section 302 of IPC to Section 304-B of IPC basing on the confession statements of accused No.1 and basing on the PME report.
7. The above said aspects would reveal that, prima facie, the allegations are against the petitioner No.1/husband and petitioner No.2/mother-in-law of the deceased. There are no allegations much less specific allegations against petitioner No.3 herein/married sister of accused No.1. According to the 7 learned counsel for the petitioners, petitioner No.3, being married sister, has nothing to do with the matrimonial life of accused No.1 and the deceased.
8. As stated above, the allegation of committing an offence under Section 302 of IPC is against petitioner No.1. Against petitioner Nos.2 and 3, the allegations are only under Section 304-B of IPC. In view of the same, Section 304 of IPC which is relevant for the purpose of deciding the criminal petition is extracted below.
"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 purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961)."
9. On perusal of the above said provisions, it can be seen that the offence under Section 304-B of IPC requires the following ingredients; (i) within 7 years of the marriage, there must happen the death of a woman (the wife); (ii) the death must be caused by any burns or bodily injury; or the death must occur otherwise than under normal circumstances; (iii) it must be established that soon before her death, she was subjected to cruelty or harassment; (iv) the cruelty or harassment may be by her husband or any relative of her 8 husband; and (v) the cruelty or harassment by the husband or relative of the husband must be for, or in connection with, any demand for dowry.
10. It is relevant to note that as per Section 304-B of IPC, husband or any relative of the husband shall be deemed to have caused her death. Section 113-B of the Indian Evidence Act, 1872 provides for presumption as to dowry death. It provides that when the question is whether the dowry death, namely, the death contemplated under Section 304-B of IPC has been committed by a person, if it is shown that soon before her death, the woman was subjected by such person to cruelty or harassment, for in connection with, any demand for dowry, the Court shall "presume" that such person had caused the dowry death. It is, no doubt, a rebuttable presumption and it is open to the husband and his relatives to show the absence of the ingredients of Section 304-B of IPC.
11. It is also relevant to note that foremost aspect to be established by the prosecution is that there was reliable evidence to show that the woman was subjected to cruelty or harassment by her husband or his relatives which must be for or in connection with any demand for dowry, soon before her death. Before the presumption is raised, it must be established that the woman was subjected by such person to cruelty or harassment and it is not any cruelty that becomes the subject 9 matter of the provision but it is the cruelty or harassment or in connection with, demand for dowry.
12. As per Section 498-A of IPC, there should be willful conduct of the 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 and the 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, shall be liable to punishment.
13. It is apt to note that there is no definition of 'dowry' in IPC. Section 2 of the Dowry Prohibition Act, 1961, defines the 'dowry' which is as follows:
"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."10
By virtue of an amendment vide Act 63 of 1984, which came into force with effect from 02.10.1985, the words "in connection with the marriage of the said parties" were inserted by the Legislature. Therefore, the Legislature in its wisdom, made it very clear that 'dowry' should be in connection with the marriage of the parties.
14. In view of the said requirements, coming to the facts of the case on hand, as discussed supra, there are no allegations, much less specific allegations, against petitioner No.3/A-4 (sister of accused No.1). Prima facie, the allegations are against accused Nos.1 to 3. Accused No.2 (father of the accused No.1) is no more. As stated above, the marriage of petitioner No.1 with the deceased was performed on 12.02.2012 and she died on 266/27-03-2017. Even according to the contents of the charge sheet, there was harassment by accused No.1 and there is a specific allegation that accused No.2 misbehaved with her due to which the deceased consumed poison on 14.09.2014. Even according to the deceased, Accused Nos.1 to 3 started harassing her from September 2014 onwards. Thus, prima facie, there are specific allegation of demand of additional dowry of two tulas of gold against petitioner Nos.1 and 2 at Saigudem and Alair and there are also disputes with regard to sale of gold ornaments of deceased by petitioner Nos.1 and 2 for the purpose of construction of house at Alair. At the cost of repetition, it is relevant to note that there 11 are no allegations, much less specific allegations against petitioner No.3/A-4 and contents of the charge sheet lacks the said ingredients of Section 304-B of IPC against her. None of the witnesses spoke about the alleged harassment of the deceased by petitioner No.3/A-4. Thus, there are no allegations, much less specific allegations, against petitioner No.3 (sister of accused No.1).
15. In Kamal Shivaji Pokarnekar v. The State of Maharashtra1, the Apex Court has categorically held that quashing criminal proceedings was called for only in a case where complaint did not disclose any offence, or was frivolous, vexatious, or oppressive. If allegations set out in complaint did not constitute offence of which cognizance had been taken by Magistrate, it was open to High Court to quash same. It was not necessary that, a meticulous analysis of case should be done before trial to find out whether case would end in conviction or acquittal. If it appeared on a reading of complaint and consideration of allegations therein, in light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for High Court to interfere. The defences that might be available, or facts/aspects which when established during trial, might lead to acquittal, were not grounds for quashing complaint at threshold. At that stage, only question relevant was whether averments in complaint 1 . AIR 2019 SC 847 12 spell out ingredients of a criminal offence or not. The Court has to consider whether complaint discloses that prima facie, offences that were alleged against Respondents. Correctness or otherwise of said allegations had to be decided only in trial. At initial stage of issuance of process, it was not open to Courts to stifle proceedings by entering into merits of the contentions made on behalf of Accused. Criminal complaints could not be quashed only on ground that, allegations made therein appear to be of a civil nature. If ingredients of offence alleged against Accused were prima facie made out in complaint, criminal proceeding shall not be interdicted.
16. In Skoda Auto Volkswagen India Private Limited v. The State of Uttar Pradesh2, the Hon'ble Apex Court referring to the various judgments rendered by it categorically held that the High Courts in exercise of its inherent powers under Section 482 of Cr.P.C has to quash the proceedings in criminal cases in rarest of rare cases with extreme caution.
17. As held by the Hon'ble Apex Court in Kamal Shivaji Pokarnekar (supra) and Skoda Auto Volkswagen India Private Limited (supra), since in this case, there are several triable issues and also, prima facie, there are specific allegations against petitioner Nos.1 and 2/accused Nos.1 and 3, this Court is not inclined to quash the proceedings against them. As discussed supra, there are no allegations, much less specific allegations, against petitioner No.3/accused No.4 and since the 2 AIR 2021 SC 931 13 charge sheet lacks the above said requisites of Section 304-B of IPC, this Court is inclined to quash the proceedings against petitioner No.3/accused No.4 in S.C.No.84 of 2017.
18. Accordingly, this Criminal Petition is allowed in part quashing the proceedings in S.C.No.84 of 2017 in respect of petitioner No.3/accused No.4 and dismissing the petition against petitioner Nos.1 and 2/accused Nos.1 and 3. Miscellaneous petitions if any, pending in this criminal petition, shall stand closed.
Miscellaneous petitions pending, if any, shall stand disposed of.
__________________ K. LAKSHMAN, J Date: 01.06.2021 dv