Ananta vs The State Of Maharashtra
2013 Latest Caselaw 414 Bom

                                                  Cri. Appeal No. 108/13
                                       1




                                                                       
                   IN THE HIGH COURT AT BOMBAY
               APPELLATE SIDE, BENCH AT AURANGABAD




                                               
                  CRIMINAL APPEAL NO. 108 OF 2013


     Ananta s/o. Ashroba Alse,
     Age 30 years, Occu. Agri/Jail,




                                              
     R/o. Shelgaon, Tq. Sonpeth,
     Dist. Parbhani.                            ....Appellant.




                                      
           Versus

                      
     The State of Maharashtra
     Through Police Station Sonpeth,
     Tq. Sonpeth, Dist. Parbhani.               ....Respondent.
                     
     Mr. A.U. Pawar, Advocate for appellant.
      

     Mr. A.S. Shinde, APP for State.
   



                       CORAM                    : T. V. NALAWADE, J.
                       RESERVED ON              : 4th December, 2013
                       PRONOUNCED ON           : 23rd December, 2013





     JUDGMENT :

1. The appeal is filed against judgment and order of

Sessions Case No. 13/2009, which was pending in the Court of

Ad-hoc Additional Sessions Judge, Gangakhed, District Parbhani.

The appellant is convicted and sentenced by the Trial Court for

offences punishable under sections 304-B and 498-A of Indian

Penal Code. The maximum substantive sentence given to the

appellant is 10 years for the offence punishable under section

Cri. Appeal No. 108/13

304-B of I.P.C. Both the sides are heard.

2. In short, the facts leading to institution of the appeal

can be stated as follows :-

The deceased Seeta was sister of complainant, Ranba

(PW 2). She was given in marriage to the appellant/accused on

23.6.2007. Accused Nos. 2 and 3 are the parents of the appellant

Accused Nos. 3 and 4 are brothers of the appellant. Accused No. 6

is the wife of accused No. 4. The remaining accused are acquitted

by the Trial Court. After the marriage, the deceased started

cohabiting with appellant in village Shelgaon where her husband

was living with other accused in Joint Hindu Family. Seeta died due

to burn injuries on 19.8.2008 and the incident took place in

matrimonial house.

3. It is the case of State that at the time of settlement of

marriage, the relatives on parents' side of the deceased had

agreed to give dowry of Rs. 1.5 lakh. The amount of Rs. 1 lakh

towards dowry was given when the marriage was solemnized and

there was the promise to give the remaining amount afterwards. It

is the case of State that the husband and his relatives were not

happy as the remaining amount was not given immediately and

Cri. Appeal No. 108/13

they were insisting the deceased to bring the remaining amount

of dowry. On that count, they were giving mental and physical

illtreatment to the deceased. The deceased used to visit to the

house of her parents on the occasions of festivals and she used to

disclose about the illtreatment. She also used to disclose that the

husband was addicted to liquor and he had extra marital affair

and due to that also, there was illtreatment to her. It is the case of

State that deceased was driven out of the matrimonial house on

the aforesaid count and the relatives of parents side of deceased

had somehow convinced the accused to accept the deceased

back in matrimonial house.

4. It is the case of State that on the occasion of last

Panchami festival, the deceased had visited to house of her

parents and she had again disclosed about the illtreatment. It is

the case of State that on that occasion, the husband had directly

made the demand of dowry to the parents of the deceased and he

had demanded Rs. 50,000/- more as he wanted to purchase a

motorcycle. This demand was not met with and so, the

illtreatment was continued after the last Panchami festival. After

the incident, the brother gave report and he mentioned aforesaid

incidents in the report. The brother reported that the deceased

had committed suicide due to aforesaid illtreatment.

Cri. Appeal No. 108/13

5. The crime at C.R. No. 77/2008 was registered in

Sonpeth Police Station for aforesaid offences. During

investigation, police prepared enquest panchanama and spot

panchanama. The P.M. was conducted on the dead body and the

statements of neighbours and some relatives on the side of

parents of deceased were recorded. During the course of

investigation, partly burnt pieces of clothes of deceased lying on

the spot of offence were taken over along with can of kerosene

and articles were sent to C.A. Office. Most of the prosecution

witnesses stuck to their versions. The accused took the defence of

total denial. The accused took the defence that after the death of

his wife, the complainant and other relatives of deceased made

demand of money to him and as the demand was not met with,

false report was given against him. The Trial Court has believed

the evidence given as against husband.

6. Ranba (PW 2) has given evidence that his sister,

Seeta was given in marriage to appellant on 23.6.2007. He has

given evidence that the relatives on parents' side of the deceased

had agreed to give dowry of Rs. 1.5 lakh for the marriage, but at

the time of marriage, they could give only Rs. 1 lakh. He has

given evidence that they had decided to give remaining amount

Cri. Appeal No. 108/13

afterwards. He has given evidence that he learnt from the

deceased that accused was picking up quarrel, giving abuses due

to non payment of remaining amount of dowry. He has deposed

that accused was addicted to liquor and hemp and he had also

having illicit relation with a woman of his village. He has deposed

that there was illtreatment to deceased on these counts and

deceased used to disclose about the illtreatment during her visits

to the house of parents. He has deposed that the deceased used

to request not to send her to matrimonial house as there was

illtreatment to her. He has given evidence that they tried to

intervene and tried to convince by saying that the remaining

amount of dowry will be given afterwards. He has given evidence

that the accused was not ready to listen.

7. Ranba (PW 2) has further deposed that on the

occasion of last panchami, the deceased had visited the house of

parents. He has deposed that his father had brought the deceased

to the parents house and on that occasion also, it was informed

that there was insistence for giving remaining amount of dowry.

According to him, the deceased had further disclosed that the

husband wanted Rs. 50,000/- more as he wanted to purchase a

motorcycle. He has given evidence that the husband also made

the demand directly of these amounts. He has given evidence

Cri. Appeal No. 108/13

that the accused gave information about the incident to them on

19.8.2008. He has deposed that the report at Exh. 41 was given

by him on 20.8.2008 after the funeral was over and he did not

give report immediately as he was disturbed.

8. In the cross examination of Ranba (PW 2), particulars

in respect of the occasions when disclosures were made by the

deceased about the illtreatment are brought on the record. PW 2

has given evidence that on the occasions of festivals, she used to

make such disclosures. It is brought on the record in his cross

examination that he was present on the spot when police

prepared spot panchanama. This circumstance is brought on the

record to show that he had opportunity to give report. It is

suggested that the false report is given by PW 2 as the deceased

was his beloved sister. It is suggested that she did not like to stay

in the village of the accused. These two suggestions are denied by

Ranba (PW 2). Namdeo (PW 3), the father of deceased has also

given similar evidence on the illtreatment which the deceased

was receiving and also on illegal demand of dowry and the

amount for purchasing the motorcycle. Their evidence is based on

both the disclosures made by the deceased and the direct

demand made by the husband to them.

Cri. Appeal No. 108/13

9. Dnyaneshwar (PW 3) is friend of PW 2. He has given

evidence on the illtreatment which the deceased was receiving

and on the demand, which the accused was making. But this

evidence is based on so called disclosures made to him by the

brother of deceased. No evidence is given by brother that he used

to disclose about the illtreatment to Dnyaneshwar. In view of this

circumstance, there is no need to discuss in detail the evidence of

Dnyaneshwar (PW 3). This evidence cannot be used against the

accused.

10. Dnyaneshwar (PW 3) has given evidence on spot

panchanama also. The spot panchanama is proved as Exh. 43.

Evidence of Dnyaneshwar, evidence of Investigating Officer

Shinde (PW 9) and the document of spot panchanama show that

from the spot of offence partly burnt pieces of clothes of

deceased, one box of kerosene, match stick, can of kerosene were

taken over. One witness is examined to show that the pieces of

clothes found on the spot were sent to C.A. Office. The C.A. report

shows that kerosene was detected on these clothes.

11. The suggestions given to the witnesses by defence

counsel show that it is tried to suggest that one kerosene stove

was involved in the incident. The spot panchanama at Exh. 43

Cri. Appeal No. 108/13

does not support this contention. It shows that there was a

cooking place in Varanda portion and the cooking place was not

involving kerosene stove, but it involved the facilities of using fire

wood. Further, the spot panchanama and map of scene of offence

show that the incident took place in a room adjacent to the

kitchen and not in the kitchen portion. These circumstances are

consistent with the case of prosecution.

12.

Pralhad (PW 8), a peon working in the school of the

appellant has given evidence that on the day of the incident one

person had come to the school to inform that the deceased had

sustained burn injuries while cooking. This evidence cannot help

the defence in view of the circumstances already discussed. The

spot panchanama was prepared on 20.8.2008 between 9.00 a.m.

and 10.00 a.m. when the F.I.R. was received by police station on

20.8.2008 at about 2.35 p.m. Thus, the material was collected

and the panchanama was prepared prior to registration of the

crime.

13. The record shows that the appellant/husband did not

give report after the death of Sunita alias Seeta. Ashroba (PW 6),

Police Patil of the village of appellant has given evidence that on

the day of incident the dead body of deceased was brought to the

Cri. Appeal No. 108/13

house of appellant at 2.00 p.m. He has deposed that nobody from

the house of appellant was ready to give A. D. report and so, he

gave A.D. report which is at Exh. 53. The A.D. report was

registered in police station at 9.45 p.m. on 19.8.2008. His

evidence shows that he had given information on phone also

about the death to police. A copy of station diary entry made in

respect of information received on phone is produced at Exh. 67

and it shows that it was received on 19.8.2008 at about 6.05 p.m.

These documents show that Police Patil had informed the police

station that the deceased had set fired to herself. These

circumstances are relevant and it was necessary for the

husband/appellant to explain the circumstances. No explanation is

given by the husband.

14. Some contradictions are pointed in the evidence of

father of deceased with reference to his police statement. He had

not stated before the police that husband had directly demanded

money from him. This contradiction is proved in the evidence of

Investigating Officer (PW 9).

15. It can be said that there is evidence mainly of

interested witnesses like brother and father of deceased. The

delay of one day was caused in giving the report. However, the

Cri. Appeal No. 108/13

aforesaid record and circumstances show that the circumstance

like delay caused in giving of the report has not made the case of

the prosecution doubtful and the circumstances do not show that

the interested witnesses have given false evidence. The record is

sufficient to prove that it is a case of suicide. No probability is

created that the clothes of deceased caught fired accidentally. In

addition to the aforesaid evidence, there is the conduct of

husband of not offering any explanation and not giving the report,

A.D. report.

16. Both the sides have placed reliance on some reported

cases. The facts and circumstances of each and every criminal

case are always different and the Court is expected to take

decision on the facts of that case. There was the charge for

offences punishable under sections 304-B and 498-A of I.P.C.

Though there was no separate charge for offences under Dowry

Prohibition Act, there is the evidence to show that there was an

agreement of dowry and there was the demand of dowry. In the

case reported as 2007 AIR SCW 3219 [Ananda Mohan Sen

and Anr. Vs. State of W.B.], the Apex Court has discussed the

circumstance like the evidence of only interested witnesses in

such a case. It is observed that naturally a married woman would

confide with close friend or mother. Thus, only due to the

Cri. Appeal No. 108/13

circumstance that there are versions of only interested witnesses,

the case of prosecution cannot be thrown away.

17. In the case reported as 2007 AIR SCW 6642

[Kishan Singh and Anr. Vs. State of Punjab], the Apex Court

has discussed the nature of evidence with regard to demand of

dowry and as to what constitutes dowry. The demand of scooter

was made after the marriage and the Apex Court held that such

demand falls under 'dowry' defined under Dowry Prohibition Act.

18. In the case reported as [2013] ACR 398 SUPREME

COURT OF INDIA [Indrajit Sureshprasad Bind & Ors. Vs.

State of Gujrat], the Apex Court has held that when cruelty and

harassment were not proved, there was no conviction possible for

offences under sections 306 or 304-B of I.P.C. in view of the facts

of that case. The facts of the present case are different. In the

case reported as AIR 2005 SUPREME COURT 4429 [Tirath

Kumari and Anr. Vs. State of Haryana] the Apex Court has

held that when the prosecution failed to prove that there was the

illtreatment, cruelty 'soon before the death', there was no

question of giving punishment for offence punishable under

sections 304-B of I.P.C. Similar observations are made by the Apex

Court in the cases reported as 2011 AIR SCW 6556 [Shindo

Cri. Appeal No. 108/13

alias Sawinder Kaur and Anr. Vs. State of Punjab] and AIR

2000 SUPREME COURT 3631 (2) [State of U.P. Vs. Mahesh

Chandra Pandey and Ors.]. In the present case, there is the

evidence of that nature and so these cases cannot help the

appellant.

19. The learned counsel for appellant placed reliance on

the case reported as ALL M.R. (CRI)-2013-1-640 [Sampat

Narayan HakeVs. The State of Maharashtra] and the

judgment delivered by Aurangabad Bench of Bombay High

Court in Criminal Appeal No. 217/2000 [Jitendra Baburao

Patil Vs. The State of Maharashtra]. The facts of both the

cases are different. So the observations made by this Court in

those cases are of no help to the appellant.

20. In the case reported as 2012 CRI.L.J. 616 [Shivlal

and Anr. Vs. State of Chhattisgarh], on facts the Apex Court

has held that the accused was entitled to benefit of doubt. In the

case reported as 2010 CRI.L.J. 3419 [Durga Prasad and Anr.

Vs. State of M.P.], when cruelty was not in relation to dowry the

accused was given the benefit of doubt. There cannot be any

dispute over the propositions made in these cases. In the case

reported as [2013] ACR 354 [K.R.J. Sarma and Ors. Vs. R.V.

Cri. Appeal No. 108/13

Surya Rao and Ors.] on facts the accused was held to be

entitled for acquittal, when prosecution failed to prove the "willful

conduct" and there was the charge for offence punishable under

section 498-A, 306 of I.P.C.

21. In the case reported as AIR 2007 SUPREME COURT

2739 (1) [Silak Ram and Anr. Vs. State of Haryana], the

Apex Court has discussed the circumstance like delay caused in

giving of the F.I.R. It is observed that the delay is not always fatal

to the prosecution case. Thus, it is up to the Court to decide as to

whether the delay is explained and whether the delay has created

a reasonable doubt about the case of prosecution. It is already

observed that the complainant has explained the delay. In our

society, the husband is expected to perform the last rites at the

time of funeral of the dead body of his wife. The evidence of

brother of deceased shows that the report was given when funeral

was over. The funeral took place in the village of the husband. So,

this Court holds that the delay of one day caused in the present

case has not created any reasonable doubt against the case of

prosecution.

22. The death took place within seven years of the

marriage. The prosecution has given evidence on "cruelty" as

Cri. Appeal No. 108/13

defined in section 498-A of I.P.C. Prosecution has also proved that

there was an agreement of dowry and there was demand of dowry

and on that count, illtreatment was given to the deceased. In view

of the facts of this case, the presumption available under section

113-B of Evidence Act needs to be used. In the case reported as

AIR 2006 SUPREME COURT 680 [Harjit Singh Vs. State of

Punjab] when there was no evidence on cruelty, it was held that

the provision of section 113-B of Evidence Act could not have

been invoked and it was not possible to convict the accused for

offence punishable under section 304-B of I.P.C. It was further

observed that the accused shall not be convicted for offence

punishable under section 306 of I.P.C. if he was not found guilty

for offence punishable under section 304-B of I.P.C. This

proposition cannot be disputed. In the present case, the cruelty

has been proved and even the demand of dowry is proved. Thus,

the provision of section 113-B of Evidence Act needs to be used in

the present case.

23. The Trial Court has considered the aforesaid record

and law. This Court sees no reason to interfere in the decision of

the Trial Court. Both the offences are proved by the prosecution.

So far as point of penalty is concerned, it can be said that sending

husband behind bars for a period of ten years is little bit harsh

Cri. Appeal No. 108/13

and in this case, minimum penalty of seven years can be given. To

that extent only, the judgment and order needs to be altered.

24. So, the appeal is partly allowed. The conviction given

for both the offences is hereby maintained. The sentence given

for offence punishable under section 498-A of I.P.C. is maintained.

But, the substantive sentence given in respect of offence

punishable under section 304-B of I.P.C. is reduced from ten years

R.I. to seven years R.I.

[ T. V. NALAWADE, J. ]

ssc/