Bombay High Court
Dinesh Ganpat Bondre vs The State Of Maharashtra on 17 April, 2017
Bench: A.M. Badar
(26)APPANo.12712016(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2 OF 2016
WITH
CRIMINAL APPLICATION NO.1271 OF 2016
IN
CRIMINAL APPEAL NO.2 OF 2016
Dinesh Ganpat Bondre,
Age : 34 years, Occupation : Serivce,
residing at Bondrepada, Village Kharade,
Taluka Shahapur, District Thane.
(Presently at Kalyan Gramin Jail) ... Appellant/Applicant
V/s.
The State of Maharashtra,
Through Kinhavali Polcie Station,
Taluka Shahapur, District Thane.
(C.R.No.I-10/2009) ... Respondent
.....
Mr.M.K.Kocharekar i/b. D.S.Pagare, Advocate for the
Appellant/Applicant.
Mr.S.V.Gavand, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 17th APRIL 2017.
ORAL JUDGMENT :
1 Bail application bearing No.20 of 2016 filed by the
applicant/accused came to be withdrawn and while permitting
withdrawal of the said application, this Court had granted liberty
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to mention the matter after preparation of the paper book. The
matter could not be listed and ultimately fresh bail application
came to be filed and during the course of hearing of fresh bail
application bearing No.1271 of 2016, the learned Advocate
appearing for the appellant/accused No.1. submitted that
arguments advanced by him may be considered for deciding the
appeal itself. That is how the appeal is being decided after
hearing both parties.
2 The appellant/accused No.1 along with his parents,
two brothers and a sister-in-law were put up for trial for offences
punishable under Sections 302, 498-A, 304-B of the Indian Penal
Code ("the IPC" for the sake of brevity). Except the
appellant/accused No.1 Dinesh Bondre, rest of accused persons
came to be acquitted by the learned trial Court. The
appellant/accused No.1 Dinesh came to be convicted of offence
punishable under Section 304-B and 498-A of the IPC vide
Judgment and Order dated 22/12/2015 by the learned Additional
Sessions Judge, Kalyan in Sessions Case No.144 of 2009. For the
offence punishable under Section 304-B of the IPC, he is sentenced
to suffer rigorous imprisonment for seven years apart from
payment of fine of Rs.3,000/- and in default he is directed to
undergo further simple imprisonment for nine months. For the
offence punishable under Section 498-A of the IPC, the
appellant/accused No.1 is sentenced to suffer rigorous
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imprisonment for three years apart from directing to pay fine
amount of Rs.2000/- and in default to undergo further simple
imprisonment for six months. Feeling aggrieved by this conviction
and sentence, the instant appeal.
3 Briefly stated facts leading to the prosecution of the
appellant/accused No.1 are thus :
(a) Tai @ Dipika - daughter of P.W.No.1 Hari Jayram Gharat
resident of Hingbud, Taluka Shahapur, District Thane married the
appellant/accused No.1 on 04/03/2008. After marriage, she
started cohabiting with the appellant/accused No.1 and his family
members at village Bondrepada, Shahapur Taluka, Thane District.
After three to four months of her marriage, matrimonial life of Tai
@ Dipika suffered rough weather. According to the prosecution
case, the appellant/accused No.1 and his relatives started
subjecting her to cruelty on account of their demand of dowry
amounting to Rs.50,000/-. This demand of money was allegedly
for purchase of a jeep. Because of his poor financial condition,
P.W.No.1 Hari Gharat was unable to meet this unlawful demand
of money by the appellant/accused No.1 as well as his relatives.
According to the prosecution case, on account of this demand, Tai
@ Dipika was subjected to cruelty by accused persons with a view
to coerce her to meet their demand of Rs.50,000/-.
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(b) According to the prosecution case, unable to bear with
constant harassment and torture at hands of accused persons, Tai
@ Dipika died unnatural death at her matrimonial house on
12/03/2009. The appellant/accused No.1 did not inform about
this incident to parents of Tai @ Dipika. However, someone from
village Bondrepada informed this incident telephonically to
P.W.No.1 Hari Gharat and, therefore, along with relatives
P.W.No.1 Hari rushed to the hospital at Shahapur in order to
check what happened to Tai @ Dipika. He could not trace her out
at the hospital at Shahapur and then he came to know that Tai @
Dipika died and her dead body was at her matrimonial house.
P.W.No.1 Hari then went to matrimonial house of Tai @ Dipika at
Bondrepada and immediately lodged report (Exh.16) with
Kinhavali police station, which has resulted in registration of
accidental death case No.11 of 2009 under Section 174 of the
Code of Criminal Procedure, 1973 ("Cr.P.C." for the sake of
brevity). Dead body of Tai @ Dipika was then sent for autopsy to
the Civil Hospital, Thane and the Autopsy Surgeon concluded that
Tai @ Dipika died because of cardio-respiratory failure due to
asphyxia. Thereafter, P.W.No.1 Hari Gharat on 13/03/2009
lodged FIR (Exh.17) against accused persons alleging that they
committed murder of Tai @ Dipika after subjecting her to cruelty
on account of their demand of Rs.50,000/- for purchase of the
jeep. This has resulted in registration of Crime No.I-10/2009 for
the offence punishable under Sections 302, 498-A read with
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Section 34 of the IPC against accused persons with Police Station,
Kinhavali, District Thane.
4 On conclusion of investigation, accused persons
including the appellant/accused No.1 were charge-sheeted and on
committal of the case, charges for offences punishable under
Sections 302, 498-A and 304-B read with Section 34 of the IPC
came to be framed. Accused persons abjured their guilt and
claimed trial.
5 In order to bring home the guilt to accused persons,
the prosecution has examined ten witnesses. After hearing the
parties, by the impugned Judgment and Order, the learned trial
Court was pleased to convict the appellant/accused No.1 and
sentenced him as indicated in opening paragraph of this
Judgment.
6 I heard the learned Advocate appearing for the
appellant/accused No.1 at sufficient length. He argued that the
autopsy surgeon has come to the conclusion that the death was
not homicidal. He further argued that there is no evidence to
demonstrate that Tai @ Dipika was subjected to cruelty and
harassment by accused persons soon before her death. It is further
argued that for attracting presumptive provisions of Section 113-B
of the Indian Evidence Act, it is incumbent on the part of the
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prosecution to establish that there was cruelty or harassment to
the married woman and that cruelty and harassment was soon
before her death. With this, reliance is placed by the learned
Advocate on evidence of P.W.No.1 Hari Gharat - father of the
deceased to demonstrate that during her last visit to her parental
house, Tai @ Dipika had behaved in normal manner. It is further
argued that stray and isolated incidents in a matrimonial life of a
married woman cannot be construed as cruelty to her.
7 The learned Additional Public Prosecutor supported
the impugned Judgment and Order of conviction by contending
that few days before her death, Tai @ Dipika had been to her
parental house and at that time she informed her parents
including P.W.No.1 Hari about harassment and cruelty to her on
account of payment of Rs.50,000/- for purchase of jeep by accused
persons. The learned Additional Public Prosecutor further argued
that evidence of P.W.No.2 Baban Gharat and P.W.No.3 Pandurang
Gharat, who are uncles of the deceased shows that deceased Tai @
Dipika was not willing to go to her matrimonial house at that time,
but she was convinced to go to her matrimonial house. The
learned Additional Public Prosecutor further argued that deceased
Tai @ Dipika was exclusively in the company of accused persons
and as such, it was necessary for accused persons to explain how
she died while in their company at her matrimonial house. The
learned Additional Public Prosecutor further demonstrated
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conduct of the appellant/accused in not even informing parents of
the deceased about the factum of death of deceased Tai @ Dipika.
8 I have carefully considered the rival submissions and
also examined Record and Proceedings made available to me
including depositions of witnesses and the impugned Judgment
and Order. Some facts seem to be undisputed. It is not in dispute
that after her marriage with the appellant/accused No.1 on
04/03/2008, Tai @ Dipika started cohabiting with the
appellant/accused No.1 and his relatives at village Bondrepada in
Shahapur Taluka, Thane District. Undisputedly, Tai @ Dipika died
on 12/03/2009 at her matrimonial house. With this admitted
position on record, it is established that death of Tai @ Dipika was
within one year and one month from her marriage with the
appellant/accused No.1.
9 Now let us examine whether Tai @ Dipika died in
unnatural or abnormal circumstances. For that purpose, evidence
of her matrimonial relatives so also that of the Autopsy Surgeon is
relevant. P.W.No.1 Hari Gharat - father of the deceased has
stated in his evidence that he found that Tai @ Dipika was
bleeding from mouth and her eyes were swollen. He claims to
have noticed injury on her back and right thumb of the dead body
of Tai @ Dipika. P.W.No.2 Baban Gharat - uncle of deceased Tai
@ Dipika claimed that there was swelling on neck and eyes of
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dead body of Tai @ Dipika. P.W.No.3 Pandurang - another uncle
of deceased Tai @ Dipika has stated that there were injuries on
both sides of neck of Tai @ Dipika. P.W.No.2 Baban is a panch
witness to inquest notes. Perusal of inquest notes at Exh.21 goes
to show that reddish fluid was oozing from the nostrils of the dead
body and fluid was oozing from the mouth of the dead body.
Instead of this, nothing abnormal or external injuries were noticed
while preparation of inquest notes after inspecting the dead body.
Upon dispatch of dead body to Civil Hospital, Thane, P.W.No.8
Dr.Netaji Mulik, Medical Officer had conducted postmortem
examination on dead body of Tai @ Dipika. Version of this
witness shows that he had noticed conjunctival and sub-
conjunctival haemorrhage on the dead body. Tongue of dead
body was found swollen inside the mouth and darkish brown
blood and whitish froth was noticed coming out of the mouth and
the nostrils of the dead body by the Autopsy Surgeon. The
Autopsy Surgeon also noted brownish red colour, multiple
haemorrhage, petecheal particularly like lesion measuring .25 x 1
cm. irregular in size on upper part of the chest of the dead body.
Except this no other injuries were noticed on dead body of Tai @
Dipika by the Autopsy Surgeon. Cross-examination of this witness
shows that lesion marks can be found present in case of small pox
or Tuberculosis. In the case in hand, as seen from the evidence of
P.W.No.2 Baban Gharat - uncle of the deceased Tai @ Dipika had
suffered small pox during her childhood and scars of small pox
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were on her face. As such, petecheal heamorrhage on chest and
shoulder of the dead body can be attributed to the small pox
suffered by the deceased in her childhood. The Autopsy Surgeon
had ruled out possibility of death by hanging as no ligature mark
was found on the neck of the dead body. No symptoms of
homicidal death of Tai @ Dipika were noticed by the Autopsy
Surgeon. However with the finding of oozing of blackish and
brownish fluid from mouth and nostrils of the deceased coupled
with other signs found on the dead body, the Autopsy Surgeon has
shown cause of dead of Tai @ Dipika as cardio-respiratory failure
due to asphyxia.
10 Deceased Tai @ Dipika was a young lady whose
married life was just one year and one month old. Medical
evidence produced on record by the prosecution as such goes to
show that Tai @ Dipika died in unnatural and abnormal
circumstances at her matrimonial house. There is no evidence on
record to come to the conclusion that death of Tai @ Dipika was
either accidental or natural, nor there are any such suggestions to
the witnesses examined by the prosecution from the side of the
appellant/accused. Hence, I find no infirmity in the finding of the
learned trial Court on the aspect of the death of Tai @ Dipika was
otherwise than in ordinary circumstances at her matrimonial
house.
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11 Now let us examine whether the prosecution has
established offences punishable under Sections 498-A and 304-B
of the IPC. Section 304-B of the IPC which deals with Dowry
death which reads thus :-
"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."
12 Similarly, Section 113-B of the Indian Evidence Act is
also relevant for deciding the case in hand. Section 113-B of the
Indian Evidence Act so also Section 304-B of the IPC were inserted
by the Dowry Prohibition (Amendment) Act, 1986 with a view to
combat the menace of dowry death. Section 113-B of the Indian
Evidence Act reads thus :
"113-B.Presumption as to dowry death.--When the
question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman has been subjected by such person to
cruelty or harassment for, or in connection with, any
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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 304B,
of the Indian Penal Code, (45 of 1860)."
13 Perusal of these provisions shows that if a married
woman dies in unnatural and abnormal circumstances within
seven years of her marriage and if it is shown that she was
subjected to cruelty or harassment by her husband or in-laws for
and on account of demand of dowry, immediately preceding her
death, then the offence punishable under Section 304-B of the IPC
is made out. Penal provision of Section 304-B of the IPC applies
not only when death of a married woman is caused by her
husband or his relatives, but also when death occurs unnaturally,
whosoever from them might have caused it. As such, death of a
married woman is fastened on the husband and the in-laws by
creating fiction. In the case in hand, undisputedly, deceased Tai
@ Dipika died within seven years of her marriage with the
appellant/accused No.1 and her death is proved to be a unnatural
one which took place at her matrimonial house. Perusal of Section
304-B of the IPC further shows that cruelty or harassment must be
shown to be soon before the death of a married woman meaning
thereby that interval of the time between inflicting cruelty and the
resultant death should not be much. Proximate and live link
between the cruelty on account of demand of dowry and the
resultant death of married woman is required to be established.
Remote and stale allegations about cruelty are of no consequences
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in an offence punishable under Section 304-B of the IPC. The
expression "soon before her death" is not defined by the IPC and it
is left for the discretion of the Court and such determination is
always dependent on facts and circumstances of each case. With
this, now let us examine whether the next ingredients of
harassment or cruelty to Tai @ Dipika soon before her death by
the appellant /accused No.1 is established by the prosecution.
14 Explanation to Section 498-A of the IPC defines the
term "cruelty". It reads thus :
"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."
15 Terms "cruelty" and "harassment" used in Section 304-
B of the IPC will have to be considered with reference to the
explanation to Section 498-A of the IPC which defined the term
"cruelty". "Cruelty" postulated in explanation to Section 498-A of
the IPC as such implies harsh and harmful conduct of certain
intensity and persistence. It covers acts causing both physical as
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well as mental agony and torture or tyranny. What amount to
cruelty differs from person to person as well as strata of the society
from which parties are hailing. If victim of cruelty is put to intense
miseries and woes strongly stirring up her feeling that life is not
worth living, then "cruelty" as explained in Section 498-A of the
IPC is established. It envisages intention to drag or force the
woman to commit suicide or to cause grave injury or danger to her
life, limb or health. Ill-treatment is required to be of such intensity
or extent. Similarly, harassment of a woman with a view to coerce
her or any person related to her to meet any unlawful demand of
any property or valuable security also amounts to cruelty.
Explanation to Section 498-A of the IPC is not defining the term
"harassment". However, subjecting someone to unbearable
continuous or repeated or persistent and unprovoked demands
and resultant brutality or tyranny may amount to harassment to
such a person. Here also, intention is relevant. Keeping in mind
these factors as well as the fact that the concept of cruelty varies
from place to place and individual to individual according to the
socio-economic status of parties, let us examine whether in the
case in hand, the prosecution has established cruelty and ill-
treatment to Tai @ Dipika.
16 P.W.No.1 Hari Gharat - father of deceased Tai @
Dipika has deposed that after four months of married life of
deceased Tai @ Dipika, accused persons started demanding
Rs.50,000/- from her for purchasing a jeep and on account of that
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demand, they used to inflict physical as well as mental harassment
to Tai @ Dipika. From version of this witness on 05/03/2009 Tai
@ Dipika came to his house and told him about harassment and
demand of Rs.50,000/-. This witness further deposed that on
07/03/2009, the appellant/accused No.1 came to his house and
took Tai @ Dipika back to his house. Cross-examination of this
witness reveals that in fact, Tai @ Dipika came to her parental
house on 04/03/2009 along with appellant/accused No.1 Dinesh.
She then went back to her matrimonial house along with
appellant/accused No.1 Dinesh on 07/03/2009. Thus the
appellant/accused was at the house of his in-laws during this
period. What happened during this period is also brought on
record from cross-examination of P.W.No.1 Hari Gharat. Though
the appellant/accused was very much available at his house,
P.W.No.1 Hari Gharat had not even inquired from him as to why
money is needed for purchase of jeep. It is not in dispute that the
appellant/accused No.1 was working with Caterers. If really his
daughter was subjected to intense cruelty by accused persons, then
a normal father in ordinary circumstances would have certainly
inquired from his son-in-law as to the reason for demanding an
amount of Rs.50,000/- from his daughter. This did not happen.
To crown this all, version of P.W.No.1 Hari reflected from his
cross-examination shows that deceased Tai @ Dipika was
behaving like a normal married woman during her last stay at her
parental house for the period from 04/03/2009 to 07/03/2009.
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17 P.W.No.2 Baban Gharat is the uncle of deceased Tai @
Dipika. He has deposed that after four months of marriage,
accused persons started demanding Rs.50,000/- from Tai @
Dipika for purchasing a jeep and for this purpose they started ill-
treating her by taunting and beating her some time. This witness
has admitted in cross-examination that the appellant/accused
No.1 was working as a Caterer and he was not engaged in any
other occupation. P.W.No.3 Pandurang is another uncle of
deceased Tai @ Dipika. In his examination-in-chief, he has
deposed about cruelty to deceased Tai @ Dipika. In cross-
examination, he stated that Tai @ Dipika was telling him about all
ill-treatment to her.
18 P.W.No.6 Sunita Rasal is aunt of deceased Tai @
Dipika. In her evidence, this witness has stated that after four
months of her marriage, Tai @ Dipika was suffering ill-treatment
on the point of demand of Rs.50,000/- for purchasing a jeep.
19 This is all what is adduced as evidence by the
prosecution to establish cruelty and harassment to deceased Tai @
Dipika by the appellant/accused No.1. The prosecution case rests
solely on evidence of witnesses who are close relatives of deceased
Tai @ Dipika and as such, naturally, who are hostile towards the
appellant/accused. The prosecution has not collected nor had
adduced any evidence of neighbourers of deceased Tai @ Dipika,
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who would have thrown some light on the treatment which might
have been given. If the allegations of serious ill-treatment were
true, she would have certainly talked about it with her
neighbourers. Though this aspect is not conclusive, this is a fact
which needs to be taken into account in such type of matters. This
is particularly so because of evidence available against the
appellant/accused No.1 here is coming from the near and dear
once of deceased Tai @ Dipika and there is not a single piece of
disinterested evidence. Therefore, as no other evidence is
available on record for deciding veracity of evidence of interested
prosecution witnesses, their statements need to be tested carefully
by comparing them in order to find out whether they are reflecting
cruelty or harassment as envisaged by explanation to Section 498-
A of the IPC.
20 P.W.No.1 Hari Gharat had rushed to the matrimonial
house of his deceased daughter Tai @ Dipika on the day of the
incident i.e. on 12/03/2009 itself. All prosecution witnesses are
consistently deposing that after four months of her married life,
Tai @ Dipika started suffering from harassment and cruelty at the
hands of appellant/accused No.1 and his relatives. Tendency to
exaggerate or add facts is also seen from version of prosecution
witnesses, who are near relatives of the deceased, as noted in
foregoing paragraphs. All of them have stated about finding
several injuries on the dead body of Tai @ Dipika including those
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on neck of the dead body though such type of injuries were not at
all noticed in the inquest notes or in the postmortem examination
of the dead body. As such, prosecution evidence will have to be
appreciated with great care and caution. In this context, conduct
of P.W.No.1 Hari Gharat is material. Immediately, on 12/03/2009
after noticing dead body of his daughter, he lodged report to
police station Kinhavali, which is at Exh.16. In this report at
Exh.16 on the basis of which accidental death case came to be
registered, P.W.No.1 Hari Gharat has not pointed accusing finger
towards any of accused persons including the appellant/accused
No.1/husband. If really he had heard about ill-treatment and
cruelty to his daughter Tai @ Dipika after four months of her
marriage with the appellant/accused, then as a prudent father, on
the very first available opportunity he would have certainly
disclosed harassment in the matrimonial life of Tai @ Dipika to
police. Ultimately he had seen dead body of his daughter at the
house of her husband. However, the very first report at Exh.16
lodged by P.W.No.1 Hari immediately after seeing dead body of
his daughter is not making any allegations against the
appellant/accused No.1/husband of deceased Tai @ Dipika. Apart
from this, scrutiny of his evidence goes to show that whatever had
stated by him about suffering of deceased Tai @ Dipika is
"physical and mental harassment". What is meant by "physical
and mental harassment" is not further elicited from his evidence
by the Prosecutor. As noted above, concept of cruelty varies from
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place to place and individual to individual and in this context, it
was necessary to bring on record what were instances of physical
and mental harassment to Tai @ Dipika from the mouth of her
father P.W.No.1 Hari. However, evidence of P.W.No.1 Hari is
conspicuously silent on this aspect. Therefore, this Court is unable
to test whether alleged "physical and mental harassment" amounts
to cruelty or harassment as explained by explanation of Section
498-A of the IPC. Similar is the evidence of P.W.No.3 Pandurang,
who has described suffering of Tai @ Dipika as "ill-treatment".
What ill-treatment means to him cannot be gathered from his
evidence. In his chief-examination, this witness has not even
deposed about so called ill-treatment to Tai @ Dipika. Similarly is
the version of P.W.No.6 Sunita Rasal aunt of the deceased. She
has only stated that there was "ill-treatment" to Tai @ Dipika.
What she understand by ill-treatment is not explained by P.W.No.6
Sunita and as such, it is not possible to test the same in order to
ascertain whether such conduct amount to cruelty or harassment
to the married woman. The only evidence which now remains is
that of P.W.No.2 Baban Gharat who has deposed that accused
persons were taunting and beating Tai @ Dipika on account of
demand of money from her. Considering the fact that this
statement about taunting and beating is unsupported by evidence
of other prosecution witnesses, this evidence is doubtful and the
same is not sufficient to infer that the deceased was subjected to
cruelty and harassment by the appellant/accused. In the offence
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like this, allegations are very easy to make and once made it is
very difficult to dislodge them. If evidence fails to inspire
confidence, then it cannot be acted upon to base conviction. In
the case in hand, a stray sentence of P.W.No.2 Baban to the effect
that accused persons used to taunt or beat Tai @ Dipika
occasionally is not sufficient in absence of other corroborating
evidence to hold that the deceased was subjected to cruelty or
harassment, soon before her death for and on account of demand
of dowry from her. What were the taunts to her is also not
brought on record by the prosecution. Though the prosecution has
established that deceased Tai @ Dipika died otherwise than in
normal circumstances within seven years of her marriage with the
appellant/accused, it is not proved beyond reasonable doubt by
the prosecution that the appellant/accused had subjected her to
cruelty soon before her death on account of demand of dowry.
21 In the result, the appellant succeeded and, therefore,
the order :
(i) The Appeal is allowed.
(ii) The impugned Judgment and Order of conviction of the
appellant/accused No.1 for offences punishable under
Sections 498-A and 304-B of the IPC and the resultant
sentence recorded by the learned Additional Sessions
Judge, Kalyan in Sessions Case No.144 of 2009 is
quashed and set aside.
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(iii) The appellant/accused No.1 is acquitted of offences
punishable under Sections 498-A and 304-B of the Indian
Penal Code. He be released forthwith if not required in
any other case.
(iv) Fine amount, if any, paid by the appellant/accused No.1
be refunded to him.
22 Consequently Criminal Application bearing No.1271 of
2016 stands disposed of.
(A.M.BADAR J.)
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