Bombay High Court

Ramesh Dalpatsa Kalal And Ors vs The State Of Maharashtra on 28 April, 2017

Bench: V.L. Achliya

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                     
                     BENCH AT AURANGABAD.

                       CRIMINAL APPEAL NO.37 OF 2002.

        01.     Ramesh Dalpatsa Kalal,
                age 32 years, occu. Agri.,

                (Appeal abated against appellant
                No.01 vide order dated 14.10.2016).

        02.     Mathurabai Dalpatsa Kalal,
                age 58 yrs. Occu. Household,

        03.     Dalpatsa Anandsa Kalal,
                age 65 yrs. Occu. Agri.,

                All r/o village Arthe (Kh.),
                Tq. Shirpur, Dist. Dhule.         .. APPELLANTS.
                                                  (Ori.Accused).

                         VERSUS

                The State of Maharashtra. .. RESPONDENT. 

                                        ...
                 Shri C.R. Deshpande, Advocate for appellants.
                      Shri K.S. Patil, Addl. P.P. For State. 
                                        ...


                                            CORAM : V.L. ACHLIYA, J.

                                              Reserved on: 30.01.2017.
                                            Pronounced on: 28.04.2017.


        JUDGMENT:

1. This appeal is directed against judgment and order

dated 5th January, 2002 passed by the Ad-hoc Additional

Sessions Judge, Shahada, District Nandurbar in Sessions

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Case No.238 of 1998. By the impugned judgment and order,

appellants were held guilty of offence punishable under

Section 3 of the Dowry Prohibition Act and sentenced to suffer

S.I. for two years and to pay a fine of Rs.15,000/- each, in

default of payment of fine, to suffer S.I. for three months.

2. In brief, the facts leading to filing the appeal are

summarized as under:

(a) Appellants / accused were tried for committing

offences punishable under Sections 306, 420 r.w.

34 of IPC and section 3 of the Dowry Prohibition

Act, 1961. On conclusion of trial, appellants were

acquitted of the offences punishable under

Sections 306, 420 r.w. 34 of IPC. They were

convicted for the offence punishable under

Section 3 of the Dowry Prohibition Act and

awarded sentence as stated above.

(b) On 9.10.1992, the complainant Ashok Kalal

(P.W.3) visited Police Station, Shahada and lodged

complaint vide Exh.39 alleging therein that

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engagement of his sister Pramila (hereinafter

referred to as the 'deceased') had taken place on

7.5.1992 with deceased appellant - accused No.1.

Before the engagement, talk in respect of

settlement of marriage had taken place on

21.4.1992. The meeting was attended by family

members from both sides and other relatives. It

was decided to give Rs.33,000/- in cash and

golden ring of 10 gm as dowry. It was further

decided that expenses towards clothes,

photographer, video cassette and band would be

borne in equal share and amount as agreed will

be given at the time of purchasing clothes of

marriage. Subsequent thereto, the programme of

engagement had taken place on 7.5.1992. One

month after the programme of engagement,

appellant Nos.2 and 3 called the complainant to

their house and told him that they want to admit

their son i.e. deceased appellant No.1 for B.Ed.

Course and for that purpose they require

Rs.15,000/-. They further told him that only

after receiving Rs.15,000/-, they will perform

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marriage of their son. The complainant refused to

pay any amount and clearly told them that he will

not pay any amount other than the amount of

dowry as fixed and he will pay that amount at the

time of marriage. After coming to his house, he

disclosed his family members and relatives about

the amount of Rs.15,000/- asked to be paid by

accused Nos.2 and 3 and further told them that

due to his refusal, accused Nos.2 and 3 have

become annoyed. He further alleged that after

some time, accused told him that if he is not in a

position to pay Rs.15,000/-, then get their son

Ramesh admitted for B.Ed. Course and whatever

expenses required for that purpose, will be

adjusted at the time of marriage. In order to

ensure good future life of his sister, he spent

Rs.7,000/- and got accused No.1 admitted for

B.Ed. Course through one Nago Budha Patil.

(c) On 14.6.1992, accused No.2 sent post card to

him and informed that the marriage between his

sister Pramila and accused is not possible. He

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has mentioned in the letter that he had shown

horoscope of both of them to Brahmin at Shirpur

and he has told him that if marriage is performed,

death of one of them is likely to take place.

Thereafter, talks between the members of family

of the complainant and accused persons took

place and ultimately it was decided to perform the

marriage after accused No.1 completes his B.Ed.

Course. On 5.10.1992, father of the complainant

went to the house of accused Nos.2 and 3 to meet

him. But, they abused his father and asked him

to step down from the steps of their house and

further asked him not to visit their house. They

threatened that if he comes back, then they will

kick him out and further told that they will not

perform the marriage of their son with his

daughter. After returning home, father of the

complainant narrated the incident. Because of

harassment and disrespect given to his father by

accused Nos.2 and 3, his sister Pramila got very

much disturbed and felt bad about the incident.

Prior to said incident also accused No.3

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repeatedly told that she will not allow the

marriage of her son to take place with Pramila.

(d) On 6.10.1992, deceased left her house by telling

that she is going to nearby Bhavani temple. Since

deceased did not return back, the complainant

and other family members went in search of her.

On 7.10.1992, dead body of deceased was found

in the river bed of river Tapi near village

Prakasha. Because of said acts of the accused,

deceased was deeply hurt. She, therefore,

committed suicide by jumping into the river and

putting an end to her life. After body of deceased

was recovered from river bed of Tapi, the post-

cards written by her to Nago Patil and Gulabrao

Patil were received. In these letters, she disclosed

the reason for committing suicide i.e. due to said

acts of the accused. Pursuant to the complaint

lodged by the complainant, offence punishable

under Section 306 r.w. 34 of IPC and section 3 of

the Dowry Prohibition Act came to be registered

against accused.

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(e) Before lodging of complaint by Ashok Kalal

(P.W.3), A.D. was already registered vide AD

No.32/1992. On 9.10.1992, complainant Ashok

Kalal (P.W.3) lodged complaint against accused.

Upon his complaint, offence at C.R. No. 123/1992

was registered. Pursuant to the enquiry, P.S.I.

Kashinath Bharte (P.W.7) made inquest

panchanama of the dead body of deceased and

later on sent dead body of deceased for

postmortem. After registration of offence,

accused were arrested on 11.10.1992. During the

course of investigation, post-cards written by

deceased as well as accused No.2 came to be

seized. Specimen handwriting of accused

persons, the letters and specimen handwriting

were sent to handwriting expert. During the

course of investigation, statement of witnesses

Kamalbai Kalal (P.W.4), Nago Budha Patil (P.W.5)

and Gulabrao Patil (P.W.6) were recorded. On

completion of investigation, accused were charge-

sheeted before the Court of J.M.F.C., Shahada

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and later on case was committed to the Court of

Sessions.

(f) Initially, charge was framed under section 306

r.w. 34 of IPC and section 3 of the Dowry

Prohibition Act. Later on additional charge under

Section 420 r.w. 34 of IPC came to be framed

against accused. Accused pleaded not guilty and

claimed to be tried. On the basis of cross-

examination of the witnesses and statements

recorded under Section 313 of Cr.P.C., defence of

accused appears to be of total denial and false

implication at the instance of complainant. In

nutshell, defence of the accused is that they never

demanded any dowry nor received any amount.

The accused have taken a stand that admission of

accused No.1 had taken place on 26.5.1992 and

therefore, the entire story about demand of

Rs.15,000/- and payment of Rs.7,000/- is false.

It is further case that accused No.1 got admitted

to B.Ed. Course on 26.5.1992 i.e. much prior to

alleged demand.

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3. In order to prove its case, prosecution has examined

seven witnesses and further proved certain documents. On

conclusion of trial, learned Additional Sessions Judge

acquitted accused for the offences punishable under Sections

306, 420 r.w. 34 of IPC. However, they were found guilty of

offence punishable under Section 3 of the Dowry Prohibition

Act and awarded sentence as stated above. Being aggrieved,

the appellants have preferred this appeal.

4. Mr. C.R. Deshpande, learned Counsel for appellants -

accused strenuously contended that there is no cogent,

convincing and reliable evidence to sustain conviction. He

submitted that the trial Court has convicted the accused

without cogent and convincing evidence to prove the demand

or payment of dowry. He submitted that the reasons and

findings recorded by the trial Court are based upon surmises

and conjectures having no foundation on record.

5. On the other hand, learned APP for the State supported

the judgment and order passed by the trial Court and

submits that the demand and payment which is proved by

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prosecution necessarily to be construed as demand of dowry

made in consideration of marriage. He submits that

complainant has deposed that accused told him that

expenses incurred for securing admission would be adjusted

towards the amount to be given in marriage and therefore, the

demand of Rs.15,000/- and acceptance of Rs.7000/- on the

part of accused, amounts to taking dowry within the meaning

of section 3 of the Dowry Prohibition Act.

6. In order to appreciate the submissions advanced by

learned Counsel for the appellants and APP for the State, I

have carefully perused the record and proceedings.

7. Since the accused are acquitted for the offences

punishable under Sections 306, 420 r.w. 34 of IPC and there

is no appeal preferred against acquittal, it is not required to

go into the reasons and findings recorded by the trial Court

acquitting the accused for the said offences. The scope of

appeal is confined to conviction of appellants under Section 3

of the Dowry Prohibition Act.

8. Before adverting to appreciate the submissions

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advanced, it is necessary to consider Section 3 of the Dowry

Prohibition Act, 1961 which reads, as under:

"3. Penalty for giving or taking dowry.--(1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.

(2) Nothing in sub-section (1) shall apply to, or in relation to,--

(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act;

(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:

Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given."

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The word 'dowry' as referred in Section 3 of the said Act

has been defined under Section 2 of the Dowry Prohibition Act

which 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 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.

Explanation II.-The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860)."

9. Thus, if we consider the definition of 'dowry', as quoted

above, then it refers to giving of property or valuable security

at or before or after the marriage in consideration of marriage

between the parties; but, it excludes from its purview the

amount of mahr agreed to be given in marriages governed by

Muslim Personal Law and also excludes the presents etc.

given in marriage unless they are given in consideration of

marriage.

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10. If we consider the provisions of section 3 of the said Act,

then what has been prohibited and made punishable is giving

or taking of dowry as well as abetting those acts by any

person. In order to attract the offence under Section 3 of the

Dowry Prohibition Act, it is necessary that what is alleged to

have been given or taken or abetted to be given or taken,

must be a dowry as defined by Section 2 of the said Act.

Thus, to constitute an offence under Section 3 of the Dowry

Prohibition Act, it is necessary that an act as attributed

against the accused must necessarily amount to an act of

giving or taking dowry. It necessarily means that, such giving

or taking the property or valuable security must be in

consideration of marriage.

11. If we consider the complaint filed by the complainant

Ashok Kalal (P.W.3) and the fact deposed by him, then he has

necessarily deposed that accused had asked him to pay

Rs.15,000/- for getting the accused No.1 admitted for B.Ed.

Course. In the complaint lodged, it is stated that the accused

told him that the amount will be adjusted towards dowry

agreed to be paid in the marriage. It is further stated in the

complaint that subsequent to refusal to pay Rs.15,000/-,

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accused contacted him and told him that if he is not in a

position to pay the amount, then asked him to act on his own

and get accused No.1 admitted for B.Ed. Course and whatever

amount incurred for that purpose, would be adjusted in the

amount to be paid at the time of marriage. It is further stated

in the complaint that the complainant got accused No.1

admitted in B.Ed. Course by spending Rs.7000/- through

Nago Patil (P.W.5).

12. Prosecution has examined Ashok Kalal (P.W.3)

complainant vide Exh.31. He has deposed that one month

after the engagement ceremony (Sakharpuda), accused called

him at their residence and demanded Rs.15,000/- for

admission of accused No.1 in B.Ed. Course. He refused to

give any amount to them. He further deposed that he

narrated the incident to his family members. Later on, the

accused persons informed him to bear the expenses of

admission of B.Ed. Course of accused No.1 and he gave

Rs.7000/- to accused persons through Nago Patil (P.W.5). If

we consider the testimony of complaisant and the facts stated

in the complaint, then he has deposed altogether different

story in respect of payment of Rs.7000/-. In the complaint,

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he has stated that he has given Rs.7000/- to Nago Patil

(P.W.5) and through him, he got secured the admission for

accused No.1 in B.Ed. College. Whereas, in the facts deposed

before the court, he has deposed that he had paid Rs.7000/-

to accused through Nago Patil (P.W.5). Thus, there is material

variance in the complaint lodged by the complainant and the

facts deposed before the court.

13. If we consider the evidence of the complainant i.e.

P.W.3, still no offence punishable under Section 3 of the

Dowry Prohibition Act can said to be proved in the facts and

circumstances of the case. As discussed, Section 3 of the

Dowry Prohibition Act prohibits giving or taking of dowry.

Section 4 of the said Act provides for penalty for demand of

dowry. If we consider the evidence as it is, then it nowhere

reflects commission of offence under Section 3 of the said Act.

In order to attract the offence, there must be an act of taking

or giving of dowry. The demand of Rs.15,000/- or giving

Rs.7000/- for the purpose of securing admission for B.Ed.

Course, has no nexus with the demand made in consideration

of marriage. As per the case of the prosecution, it was

mutually agreed to provide cash amount of Rs.33,000/- and

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gold ring of 10 gms. in the marriage to accused No.1 and

other expenses to be borne in equal proportion. The demand

of Rs.15000/- or alleged demand of Rs.7000/- is nowhere

claimed to be part of dowry demanded or agreed to be given

as per alleged agreement, in consideration of marriage. Such

demand as well as payment, even if accepted, then still it has

no nexus with something agreed to be given and/or taken

before or after the marriage. The alleged demand and

payment is not covered by definition of 'dowry', as provided

under Section 2 of the Dowry Prohibition Act. In absence of

such demand and payment being covered by the meaning of

word 'dowry', offence under Section 3 of the Dowry Prohibition

Act is not attracted and for this reason only the conviction of

appellants is not sustainable in law.

14. In order to appreciate the submissions, I have perused

reasons and findings recorded by the trial Court. In my view,

the reasons and findings recorded by the trial Court are not

sustainable as same are based upon assumptions and

presumptions. There is no cogent and convincing evidence to

prove the alleged demand of Rs.15,000/- as well as payment

of Rs.7000/- as deposed by the complainant. Besides, oral

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testimony of the complainant (P.W.3), supplemented by Nago

Patil (P.W.5), there is no evidence to prove the alleged

demand. In the cross-examination, Ashok Kalal (P.W.3) has

admitted that he was maintaining register in his grocery shop

of payments made to other persons. He has categorically

stated that he had recorded the entry of payment of

Rs.7000/- to accused through Nago Patil in the diary

maintained by him. He has admitted that he has not handed

over said diary to police.

15. In the examination-in-chief itself, the complainant has

deposed that amount of Rs.15000/- was demanded for

securing admission for accused No.1 for B.Ed. Course. It is

nowhere stated by the complainant that the amount of

Rs.15000/- was demanded as dowry or that amount was

demanded as part of amount agreed to be given as dowry in

marriage. It is also pertinent to note that the complainant

has not stated that he has personally delivered the amount to

accused. He has deposed that he has given Rs.7000/- to

accused through Nago Patil (P.W.5). I have already discussed

in the foregoing paras that the story narrated by the

complainant is altogether different than the facts narrated in

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the complaint. In the complaint, the complainant has stated

that he has given Rs.7000/- to the person concerned through

Nago Patil and got admitted accused No.1 for B.Ed. Course.

In the examination-in-chief, the witness has deposed that he

paid the amount to accused persons. In cross-examination,

he deposed that he paid the amount to accused No.1 and at

that time, accused Nos.2 and 3 were present. Besides the

oral testimony of the complainant and Nago Patil (P.W.5),

there is no other evidence to establish that alleged demand

was made by accused. So also, there is no cogent and

convincing evidence to show that the complainant paid

Rs.7000/-. It is pertinent to note that alleged demand was

made in the month of May, 1992. The complaint was lodged

on 9.10.1992. Although the complainant has admitted that

he was maintaining diary and in that diary taken note of

payment made to the accused. However, said diary was not

seized during investigation. It is the defence of the accused

that accused No.1 secured admission for B.Ed. Course on

26.5.1992 and in support of this defence, accused No.2 has

relied upon receipt of payment made on 26.5.1992 towards

admission secured. The complainant has deposed that alleged

demand was made one month after the engagement

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ceremony. The engagement ceremony was performed on

7.5.1992. It is pertinent to note that the alleged letter written

by accused No.3, is claimed to be received on 14.6.1992,

informing the complainant that marriage between accused

No.1 and his sister is not possible due to advice from

Brahmin. If we consider the date of engagement ceremony as

7.5.1992 and the demand made after a period of one month,

then certainly the demand was made around 7.6.1992. If, the

accused No.1 had secured admission on 26.5.1992, then

there is no question of such demand being made on the part

of accused one month after 7.5.1992.

16. It is pertinent to note that it is nowhere the case of the

prosecution nor the complainant has deposed that amount of

Rs.15000/- was demanded out of dowry amount and amount

of Rs.7000/- was paid as a part payment of dowry. In this

view, the reasons and findings recorded by the trial Court are

not sustainable in law. In my view, there is no cogent,

convincing and reliable evidence to sustain the conviction for

the offence punishable under Section 3 of the Dowry

Prohibition Act.

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17. I have already discussed in the foregoing paras that in

order to attract section 3 of the said Act, there must be an act

of giving and taking dowry on the part of accused. For

proving the offence under Section 3 of the said Act, it is

incumbent upon the prosecution to prove that what has been

given or taken, amounts to dowry within the meaning of

section 3 of the said Act. The accused are not charged for

committing offence under Section 4 of the Dowry Prohibition

Act. Demand of dowry is made punishable under Section 4 of

the Dowry Prohibition Act. Accused were never charged for

commission of offence under Section 4 of the said Act. The

entire case of the prosecution and the evidence refer to

demand of dowry by accused. There is no evidence to prove

that the alleged demand was made towards dowry. On the

contrary, the complainant (P.W.3) has deposed that the

amount was demanded for admission of accused No.1 for

B.Ed. Course, which has nothing to do with demand of dowry.

18. In view above, conviction of the appellants - accused is

not sustainable in law. I am, therefore, inclined to allow the

appeal and set aside the conviction.

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19. Hence, the following order is passed:

i) Appeal is allowed in terms of prayer clause (B);

ii) The judgment and order dated 5.1.2002 passed by the 1st Ad hoc Additional Sessions Judge, Shahada in Sessions Case No.238 of 1998 is set aside;

iii) The appellant Nos.2 and 3 are acquitted of the offence punishable under Section 3 of Dowry Prohibition Act. Fine amount if any deposited by them, be refunded.