Ramrao S/O Khima Chavan And 2 ... vs State Of Maharashtra,Thr.The ...
2017 Latest Caselaw 6774 Bom

 jcrapeal425of02.odt                       1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR


                     CRIMINAL APPEAL NO.425 OF 2002


 1        Ramrao S/o. Khima Chavan,
          Aged about 30 years,
          Occupation-Agriculturist,

 2        Sawairam S/o. Khima Chavan,
          Aged about 35 years, occ. Agriculturist.

 3        Sau. Purnabai w/o. Sawairam Chavan,
          Aged about 30 years, Occ. Household,
          All residents of Amlatanda, 
          Tahsil Digras, District Yavatmal                           ....APPELLANTS


                  ...V E R S U S...


 The State of Maharashtra,
 through Police Station, Digras, 
 District Yavatmal                                                  ....RESPONDENT

 -------------------------------------------------------------------------------------------
          None for Appellants.
          Mr. A.V. Palshikar, Additional Public Prosecutor for 
          Respondent /State.
 -------------------------------------------------------------------------------------------

                                   CORAM:            ROHIT B. DEO, J. 

                                   DATE:                th
                                                     05    SEPTEMBER, 2017.


 ORAL JUDGMENT

Challenge is to judgment and order dated 31.7.2002

delivered by Additional Sessions Judge, Pusad in Sessions Trial 21

of 1998 by and under which the appellants (hereinafter referred

to as "the accused") are convicted for offence punishable under

sections 498-A, 304-B, 201 read with section 34 of Indian Penal

Code (for short "IPC") and sentenced to suffer rigorous

imprisonment for 03 years, 07 years and 02 years respectively, in

addition to payment of fine.

2 The counsel for the appellants has neither collected

the paper book nor has appeared on 23.8.2017, 4.9.2017 and

5.9.2017 on which dates the appeal was listed for final hearing.

With the assistance of learned APP Shri. A.V. Palshikar, I have

scrutinized the original record and I propose to decide the appeal

on merits consistent with the dictum of the Hon'ble Supreme

Court in Bani Singh Vs. State of Uttar Pradesh, AIR

1996(4)SCC720.

3 The case of the prosecution as emerges from the First

Information Report (for short "FIR") (Exh. 27) lodged by Hari

Rathod (PW 1) dated 22.12.1997 is thus:-

Anita, the daughter of Hari Rathod (PW1) and Ramrao

(accused 1) entered into wedlock sometime in 1995 (FIR states

that the marriage was solemnized two years prior to the FIR).

The informant states that 5 to 6 months prior to lodging of the

FIR, he learnt that Anita was being harassed by accused 1-

(husband), accused 2 - (brother of the husband) and accused 3

(sister in law of the husband). The informant states that the

harassment was due to "family matters" and the accused were

asking Anita to bring an amount of Rs. 3000/- from the informant.

The informant further states that since Anita refused to oblige, the

accused picked up quarrel with her. It is further stated in the FIR

that the informant and his wife (mother of the deceased Anita)

visited the matrimonial home of Anita and met Anita's in-laws.

The informant further states that at 5 pm on 21.12.1997, he was

told by the nephew of accused 1 that Anita was not well. The

informant directly went to the house of Anita and learnt that Anita

was no more. He states that at about 8 pm, the relatives and the

villagers performed the last rites i.e. funeral of Anita. The

informant states that he was asking them "to wait as the relatives

of Anita were yet to arrive". He then states that Anita was beaten

and harassed by the accused and Anita committed suicide due to

the illtreatment.

4 On the basis of the said FIR, offence punishable under

sections 498-A, 304-B, 201 read with section 34 of IPC was

registered, investigation ensued and ultimately charge-sheet came

to be filed before the learned Judicial Magistrate First Class, Pusad

who committed the case to the Sessions Court. The learned

Sessions Judge framed charge at Exh. 9, the accused pleaded not

guilty and claimed to be tried. The prosecution examined as

many as five witnesses including the father (PW 1), maternal

uncle of the deceased (PW 2), mother of the deceased (PW 3) and

Savitribai (PW 4) the wife of PW2. The defence of the accused is

of total denial.

5 Concededly, Anita died within 7 years of marriage.

Sine quo non of offence under section 304-B is the proof of cruelty

or harassment meted out to the woman by her husband or any

relative of her husband soon before her death, for or in

connection, with any demand for dowry. Section 304-B of IPC

reads thus:-

"304-B. Dowry death. - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstance 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).

(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."

In view of the explanation, it would be apposite to

consider the definition of "dowry" in Section 2 of the Dowry

Prohibition Act, 1961, which reads thus :

"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."

Section 113-B of the Indian Evidence Act which deals with

presumption as to dowry death 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 had been subjected by such person to cruelty or harassment for, or in connection with, any 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 304-B of the Indian Penal Code (45 of 1860)

6 Section 304-B is introduced in the Indian Penal Code

by the Dowry Prohibition (Amendment) Act, 1986, with the

avowed object of curing and curbing the menace of dowry death.

Section 113-B was also introduced in the Indian Evidence Act by

the said Act of 43 of 1986.

The necessary ingredients of Section 304-B of the

Indian Penal Code are as follows :

(1) The death of the woman was caused due to burns, bodily injury or due to unnatural circumstances.

(2) The death should be within seven years of marriage.

(3) It would be shown that soon before death the woman was subjected to cruelty or harassment by her husband or any relative of the accused.

(4) The cruelty or harassment was for or in connection with any demand of dowry.It is axiomatic that since the presumption under Section 113-B of the Indian Evidence Act is a presumption of law, on the prosecution proving the essential ingredients, the Court is obligated to raise a presumption that the accused caused the dowry death as is held by the Hon'ble Supreme Court in Prem Kanwar vs. State of Rajasthan, (2009) 3 SCC 726.

It would be apposite to note the observations of the Hon'ble

Supreme Court in Sham Lal Vs. State of Haryana, AIR 1997 SC

1873.

"11. It is imperative, for invoking the aforesaid legal presumption, to prove that "soon before her death" she was subjected to such cruelty or harassment. Here, what the

prosecution achieved in proving at the most was that there was persisting dispute between the two sides regarding the dowry paid or to be paid, both in kind and in cash, and on account of the failure to meet the demand for dowry, Neelam Rani was taken by her parents to their house about one and a half years before her death. Further evidence is that an attempt was made to patch up between the two sides for which a panchayat was held in which it was resolved that she would go back to the nuptial home pursuant to which she was taken by the husband to his house. This happened about ten to fifteen days prior to the occurrence in this case. There is nothing on record to show that she was either treated with cruelty or harassed with the demand for dowry during the period between her having been taken to the parental home and her tragic end."

7 Before I evaluate the evidence on record, it would be

relevant to also consider the provisions of section 498-A of the

IPC, which reads thus:

"498-A. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to file.

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 scrutiny or is on account of failure by her or any person related to her to meet such demand.)"

Section 498-A of the Indian Penal Code was inserted by Act

46 of 1983, with the object of preventing torture and ill-treatment

to a woman by her husband or by relatives of her husband. In

order to bring home the charge under Section 498-A of the Indian

Penal Code, it would be necessary for the prosecution to prove

that the woman was subjected to cruelty as defined in the

explanation to Section 498-A of the Indian Penal Code. 'Cruelty'

is defined to mean any willful 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) and harassment of a woman whether such harassment is

with view to coercing 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.

8 It is well settled that not every kind of cruelty

constitutes an offence under section 498-A of IPC. Cruelty for the

purpose of Section 498-A of IPC may be different from cruelty

necessary to establish a matrimonial misconduct or offence.

The evidence needs to be evaluated on the touchstone of

the settled legal position enunciating the scope and ambit of the

aforesaid provision. PW 1 who is the father of the deceased has

deposed that Anita was treated well for a year and then, Anita

informed PW 1 that her husband - accused 1 demanded Rs.

3,000/- as marriage expenses. PW 1 has further deposed that

accused 1 and 2 used to harass Anita due to household reasons

and for refusal to bring money from the parental home. PW 1

states that said harassment was disclosed by Anita during her visit

to parental home after Diwali. PW 1 then states that although he

asked the accused to wait for arrival of his relatives, the accused

hurriedly performed the funeral. PW 1 was declared hostile and

was cross examined by the learned APP during the course of

which PW 1 has answered every suggestion in the affirmative. In

the cross examination on behalf of the accused, PW 1 admits that

he and accused 1 used to cultivate the field of Kisan, the brother

in law of PW1. PW 1 admits that he used to reside in the house of

accused 1. He further denies the suggestion that due to dispute

relating to distribution of crop, he has falsely implicated accused

1. He admits that he reached Amla within 15 minutes of receiving

the message that Anita was not well. He further admits that

within 30 to 45 minutes, his wife reached Amla. PW 1 also admits

that Maroti Rathod, the uncle of the deceased Anita also reached

Amla. He admits that Kana Mahadu and Devkibai also reached

Amla. Kana Mahadu is the elder brother of PW 1. PW 1 states

that funeral was performed at 9 p.m. He denies the suggestion

that he did not ask the accused to wait for arrival of relatives. He

denies the suggestion that between 4 p.m. to 9 p.m. all relatives

had arrived in Amla. PW 2 states that his wife told him about

Anita's discloser as regards the demand for Rs. 3,000/- to 4,000/-

and the alleged harassment. The said evidence is however hearsay

and must be discarded. PW 2 then states that accused performed

the funeral without informing him and therefore, he suspects that

the accused killed Anita. PW 2 denies the suggestion that he was

present at the time of funeral. The evidence of PW 2 is of no

assistance to the prosecution. The mother of the deceased Smt.

Sumanbai is examined as PW3. She states that dowry of Rs.

5,000/- was given in connection with the marriage. She states

that after marriage, Anita faced harassment and was asked to

bring Rs. 3,000/- for household expenses. She states that Anita

disclosed to her about the harassment. She further states that she

and PW 1 reasoned out with accused 2 and was told by accused 2

that dispute shall be resolved between Anita and accused. Smt.

Savitribai, who is examined as PW4 states that one year after

marriage, Anita was asked by the accused to bring Rs. 3,000/- and

the accused used to illtreat, harass and beat Anita. She claims

that this was disclosed to her by Anita. She further claims that

she accompanied the parents of Anita to the house of accused 1.

Accused did not pay any heed and continued to beat Anita. In the

cross examination, the statement that she accompanied the

parents of Anita to the matrimonial home of Anita is brought on

record as an omission. She admits that when she reached the

house of accused 1 after the death of Anita, PW 1 had already

reached.

9 The crucial question is whether the evidence on

record is sufficient to hold that the deceased was subjected with

cruelty within the meaning of Section 498-A explanation (a) and

(b) of IPC. I am of the considered opinion, that the evidence on

record is grossly inadequate to record a finding that Anita was

subjected to cruelty. The evidence of PW 1 that he was told by

Anita that accused 1 demanded Rs. 3,000/- as marriage expenses,

is inconsistent with the evidence of PW3 that according to Anita

the accused asked her to bring Rs. 3,000/- for household

expenses. The allegation that accused 1 and 2 used to harass

Anita is not supported by any particulars or details of the alleged

harassment. Be it noted, that PW 1 has not deposed, unlike PW 4

that Anita disclosed physical illtreatment or assault. Neither PW 1

nor PW3 who is the mother of the deceased have deposed that

according to Anita she was physically beaten or assaulted. The

common thread in evidence of the father and mother of the

deceased (PW 1 & PW 3) is that they learnt from Anita that she

was asked to bring Rs. 3,000/- and was harassed. I have already

noted that while PW 1 states that said amount was asked as

marriage expenses, according to PW 3 the said amount was

towards household expenses. Be that as it may, the evidence of

PW1 and PW 3 is not sufficient to record a finding that Anita was

subjected to cruelty within the meaning of section 498-A of IPC

nor is the evidence sufficient to establish that alleged cruelty was

to coerce Anita or her family to fulfill demand for dowry. The

evidence of PW 2 is hearsay since is deposing on the basis of what

his wife allegedly told him. PW 4, in my considered opinion is not

a reliable witness. She has, very obviously, indulged in

exaggeration and her deposition that Anita was beaten, that she

accompanied PW 1 and PW 3 to the house of the accused, that

accused did not see reason and physically illtreated Anita, is

inconsistent with and is falsified by the evidence of PW1 and PW

3. As a fact, PW 3 does not state that she was accompanied by PW

4 nor does PW 3 claim that Anita was physically beaten or

assaulted.

10 One more common thread in the evidence of

prosecution witnesses is that the accused were asked to wait for

the arrival of relatives of the deceased and accused went ahead

and performed the funeral hurriedly. Be it noted, that it is not the

case of the prosecution, that any witness noticed anything

suspicious about Anita's death. None of the prosecution witnesses

claimed that at any point of time, any complaint or grievance was

made that the death is suspicious. The funeral, according to PW 1

was performed at 9 pm. Concededly, PW 1 (father ), PW 3

(mother), uncle and other relatives were present at the time of the

funeral. The prosecution witnesses have not disclosed as to which

relative was to arrive. I am not inclined to attach any weight or

give any importance to the grievance that although the accused

were asked to wait, the funeral was hurriedly performed.

11 I am not inclined to agree with the learned APP that

the prosecution has proved the offence under sections 304-B, 498-

A, 201 read with section 34 of IPC beyond reasonable doubt.

Since the principal offences have not been proved, consideration

of section 201 of IPC rendered is redundant.

The judgment impugned is set aside.

The appeal is allowed.

The accused are acquitted of punishable under sections 304-

B, 498-A, 201 read with section 34 of IPC.

Bail bonds shall stand discharged.

Fine, if any, paid by the accused shall be refunded.

JUDGE

Belkhede