State Of Maharashtra vs Prabhu Shreehari Lature And ...
2017 Latest Caselaw 4937 Bom

                                      (1)                         Cri.Appeal No. 53/2001


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO. 53/2001

 The State of Maharashtra
                                                            ..  Appellant.
          Versus

 1.       Prabhu Shreehari Lature
          Age : 23 yrs, occu. : agri.,
          R/o Bhada, Taluka Ausa,
          District Latur.

 2.       Chaturabai w/o Shreehari Lature
          (Died)

                                                            ..  Respondents.
                                                           (Original accused)

                                ***
 Mr. S.B. Pulkundwar A.P.P. for State.
 Mr. S.S. Chaudhari, Advocate for respondent No. 1
 Appeal is abated against respondent No.2.

                                         ***

                                             CORAM : T.V. NALAWADE &
                                                          SUNIL K. KOTWAL,JJ. 

DATED : 24.07.2017.

JUDGMENT : (PER SUNIL K. KOTWAL,J.)

1. This appeal is directed against judgment and order

of acquittal passed by Additional Sessions Judge, Latur in

Sessions Case No. 65/1997, dated 22-09-2000 acquitting the

(2) Cri.Appeal No. 53/2001

accused of the offences punishable under Sections 304-B, 306

and 498-A read with Section 34 of the Indian Penal Code.

2. Respondent No.1 is the original accused No. 1.

3. Prosecution case, in brief, is that Savita Hanmant

Gawali was the daughter of informant Hanmant (PW-1) and her

marriage was solemnized with accused No. 1 prior to two years

of the incident. Family of the informant and family of accused

lived in one and the same village i.e. Bhada. During

cohabitation of Savita and accused No.1 after one year accused

started ill-treatment to Savita on account of inability of the

informant to present proper gift articles in the marriage of the

sister of accused No.1. Original accused No.2 was the mother of

accused No. 1. The parents of Savita tried to intervene, but no

positive result could be achieved. Even at the occasion of the

marriage of second sister of accused No.1, an amount of Rs.

5000/- was demanded by accused from the parents of Savita

which could not be fulfilled. On that count also Savita was

subjected to harassment which resulted into her suicidal death

(3) Cri.Appeal No. 53/2001

due to consumption of poison on 17-05-1996 at the house of

accused. Informant Hanmant Gawali (PW-1) lodged report to

Police Station, Latur. In the result, Crime No. 34/1996 was

registered against accused Nos. 1 and 2 under Sections 498-A,

306 and 304-B read with Section 34 of the Indian Penal Code.

4. During the course of investigation dead body of

Savita was referred for postmortem examination and Medical

Officer opined that the cause of death of deceased was "due to

cardio-respiratory arrest due to asphyxia due to poisoning".

Inquest panchnama (Exh. 12) and spot panchnama (Exh.13)

were prepared and poison container was seized from the house

of accused persons. After completion of investigation, charge-

sheet was submitted before the Judicial Magistrate, First Class,

Latur. Offence punishable under Sections 304-B and 306 of the

Indian Penal Code being triable by Court of Sessions, this case

was committed to Sessions Court, Latur.

5. Charge (Exh. 3) was framed against accused Nos.1

an 2 under Sections 304-B, 306 and 498-A of the Indian Penal

(4) Cri.Appeal No. 53/2001

Code. Contents of the charge were read over and explained to

accused in vernacular. Accused pleaded not guilty and claimed

trial. Defence of the accused is that of total denial.

6. After considering the evidence placed on record by

prosecution, learned trial Court pleased to acquit the accused of

the offences punishable under Sections 304-B, 306 and 498-A of

the Indian Penal Code. Therefore this appeal arises.

7. Learned A.P.P. for the State submitted that the

learned trial Court failed to consider truthful testimony of

Hanmant (PW-1) and other prosecution witnesses regarding

harassment at the hands of accused of Savita on account of

demand of money. He pointed out that Savita died within the

period of 7 years from the date of her marriage, and therefore,

presumption is to be drawn that her death is dowry death and

accused abated suicidal death of Savita.

8. In reply, learned defence counsel submitted that only

because the death of wife within 7 years from the date of

(5) Cri.Appeal No. 53/2001

marriage is established, conclusion cannot be drawn that it was

dowry death or presumption cannot be drawn against accused

that they abated the suicidal death of deceased. Learned

defence Counsel pointed out that no material is placed on

record by prosecution to prove that soon before the death of

deceased she was subjected to ill-treatment within the meaning

of Section 498-A of the Indian Penal Code, on account of

demand of dowry, and therefore, presumption under Sections

113-A or 113-B of the Evidence Act cannot be drawn against the

accused persons.

9. A bare glance of Section 304-B of the Indian Penal

Code makes it clear that in order to seek conviction under

Section 304-B of the Indian Penal Code against a person for the

offence of dowry death, prosecution is obliged to prove that :

(1) Death of woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances.

(2) The deceased was subjected to cruelty or harassment by husband or by any relative of her husband. (3) Such cruelty or harassment should be for or in connection with any demand for dowry and (4) such cruelty or harassment to the deceased should have been subjected soon before her death.

(6) Cri.Appeal No. 53/2001

10. In the case at hand, the death of deceased due to

consumption of poison at the house of accused is an undisputed

fact. However, the burden lies on the prosecution to establish

that soon before the death of Savita she was subjected to cruelty

in connection with any demand for dowry. In Explanation to

Under Section 304-B of the Indian Penal Code it is provided

that, "For the purpose of this sub-section, "dowry" shall have the

same meaning as in section 2 of the Dowry Prohibition Act, 1961".

In Satvir Singh Versus State of Punjab (AIR 2001 SC 2828)

the Apex Court ruled that, "some customary payments in

connection with birth of a child or other ceremonies are

prevalent in different societies. Such payments are not

enveloped within the ambit of "dowry". The dowry mentioned

in Section 304-B should be any property or valuable security

given or agreed to be given in connection with the marriage of

deceased".

11. However, in the case at hand, the Investigating

Officer Shaikh Ayub (PW-4) has admitted in his cross-

examination that it was transpired in investigation that there

(7) Cri.Appeal No. 53/2001

was no demand of Aher of Rs. 5,000/- in connection with

marriage of accused No.1 with Savita, either before the

marriage or after the marriage. Otherwise also, it is neither the

contention of informant Hanmant (PW-1) nor any prosecution

witness that accused demanded any amount or valuable security

in connection with the marriage of Savita with accused No.1.

On the other hand, from the evidence of Hanmant (PW-1) as

well as F.I.R. (Exh. 17) only the grievance of the informant was

that, because he could not fulfill the demand of Aher i.e.

presentation article at the eve of marriage of sister of accused

No. 1, the deceased was subjected to ill-treatment. Therefore,

otherwise also in any case prosecution cannot prove that the

death of Savita was dowry death within the meaning of Section

304-B of the Indian Penal Code.

12. Another main aspect is that, according to Hanmant

(PW-1), his daughter was subjected to harassment and ill-

treatment by accused persons by beating her because he could

not give "Aher" (gift) in the marriage of sister of accused No. 1.

According to this witness, Savita was assaulted near upper

(8) Cri.Appeal No. 53/2001

portion of her right eyebrow by accused No. 1 by inflicting stick

blow and he came to know about the assault from Savita. The

second contention is that, at the eve of marriage of second sister

of accused No.1 he demanded amount of Rs. 5,000/- from this

witness which could not be fulfilled and on that count also

Savita was subjected to ill-treatment. However, from his cross-

examination it emerges that accused No.1 was holder of 10

Acres irrigated land and the informant was holder of only 15

Acres dry crop land. Thus, certainly accused No. 1 was more

financially sound than the informant. From his cross-

examination it also emerges that in the marriage of first sister,

accused No. 1 had given dowry of Rs.41,000/- and utensils of

worth Rs. 10,000/- to the bride and bridegroom. He also

admitted that at the occasion of this marriage, he himself had

given Aher and he also accepted Aher from accused No. 1.

Therefore, there was no question of displeasure on account of

inadequate Aher to the sister of accused No. 1. Thus, the

contention of the father of deceased regarding displeasure of

accused No. 1 on account of insufficient Aher and ill-treatment

to Savita for that reason, is not at all probable.

(9) Cri.Appeal No. 53/2001

13. As per the contention of Hanmant (PW-1), before

the death of Savita she had visited to her parental house and

that time his wife was informed by Savita regarding ill-

treatment to her by accused No. 1 on account of inadequate

Aher. Thereafter Savita returned back and committed suicide.

However, the important witness i.e. the mother of Savita is not

examined by prosecution. Thus, the evidence in respect of

disclosure by Savita regarding her harassment at the hands of

accused, soon before her death, is totally missing. Otherwise

also, the testimony of Hanmant (PW-1) regarding beating to

Savita or injury to her eye due to stick blow by accused No. 1 is

proved to be material omission. Though according to Hanmant

(PW-1), on the date of incident he noticed wheel marks on the

back and buttock of Savita, no such wheel marks were noticed

by Medical Officer at the time of postmortem examination. On

the other hand, in the postmortem notes, in column No.17,

Medical Officer has specifically mentioned that 'no remarkable

injury' was found on the body of Savita. From the cross-

examination of Hanmant (PW-1) it also becomes clear that he

was not present at the house when Savita informed her mother

(10) Cri.Appeal No. 53/2001

regarding demand of Rs. 5,000/- by accused persons. In the

circumstances, in absence of evidence of mother of Savita, in

any case prosecution cannot be establish that on account of

demand of money or any valuable security, accused subjected

Savita to cruelty or ill-treatment in any manner.

14. Sadashiv (PW-2) is relative of informant and his

evidence is relevant only regarding intervention at the time of

harassment of Savita by accused persons. According to this

witness, after knowing the ill-treatment to Savita by accused, he

went to the house of accused persons alongwith Hanmant (PW-

1). This witness claimed that, that time he saw injury on the

right eye of Savita. However, the contention of this witness

regarding injury to Savita on her right eye is proved as material

omission. So also, he has admitted in his cross-examination

that he is near relative of the informant and distant relative of

accused. Therefore, on the basis of such vague testimony,

prosecution cannot establish ill-treatment or harassment to

deceased by accused for demand of money or any valuable

security.

(11) Cri.Appeal No. 53/2001

15. Lajubai Gawali (PW-3) tried to corroborate the

testimony of Hanmant (PW-1) regarding harassment to Savita

by accused on account of demand of money and Aher. However,

from her cross-examination it becomes clear that her statement

regarding ill-treatment to Savita and disclosure by Savita to this

witness is nothing but a material improvement. She is the

sister-in-law of informant, and therefore, such type of evidence

of near relative is of no help to the prosecution to establish the

guilt of accused. Accordingly, we do not find any substance on

record which is sufficient to establish that at any time accused

persons ill-treated Savita on account of demand of money or for

demand of any valuable article. Therefore, the prosecution

cannot establish the offence against any accused under Section

498-A of the Indian Penal Code.

16. No doubt, suicidal death of Savita is established by

the prosecution. However, as no ill-treatment to Savita within

the meaning of Section 498-A of the Indian Penal Code is

proved by the prosecution. Thus, the presumption will not be

available against accused that they abated the suicidal death of

(12) Cri.Appeal No. 53/2001

Savita. As observed above, no material is available to connect

the accused persons with the suicidal death of Savita.

Accordingly, after careful consideration of the material placed

on record as well as the reasons assigned by the learned trial

Court while acquitting the accused, we have come to the

conclusion that the view taken by learned trial Court cannot be

terms as impossible view which calls for interference by this

Appellate Court. It follows that this appeal fails. Hence, the

following order.

ORDER

Appeal is dismissed.

                      Sd/-                                   Sd/-
          ( SUNIL K. KOTWAL)                      ( T.V. NALAWADE)
               JUDGE                                      JUDGE


                                           ***
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