Baburao S/O Ramchandra Garud & 4 ... vs The State Of ...
2017 Latest Caselaw 7052 Bom

 crapeal159of02.odt                   1



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


                     CRIMINAL APPEAL NO.159 OF 2002


 1        Baburao s/o. Ramchandra Garud,
          aged about 32 years,
          Occupation Service,

 2        Gautam s/o. Ramchandra Garud,
          aged about 30 years,
          Occupation auto rickshaw driver,

 3        Prabhakar s/o. Narayan More,
          aged about 40 years,
          Occupation service,

 4        Bhiubai wd/o. Ramchandra Garun,
          aged about 55 years,
          Occupation household,

 5        Asha w/o. Prabhakar More,
          aged about 38 years, 
          Occupation household,

          All r/o. Nagsen Nagar, Modern Town, 
          Society, Pipe line, B.R. Road, 
          Mulund Mumbi                       ....... APPELLANTS


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


 The State of Maharashtra,
 through Police Station Officer,
 Police Station, Old City Akola              ......   RESPONDENT




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          Mr. Kartik Shakul, Counsel for Appellants.
          Mr. H.R.Dhumale, Addl. Public Prosecutor for 
          Respondent /State.
 -------------------------------------------------------------------------------------------

                                   CORAM:            ROHIT B. DEO, J. 

                                   DATE:                th
                                                     13    SEPTEMBER, 2017.


 ORAL JUDGMENT

Challenge is to judgment and order dated 6.3.2002

delivered by the 3rd Additional Sessions Judge, Akola in Sessions

Trial 154 of 1995, by and under which the appellants are

convicted of offence punishable under section 4 of the Dowry

Prohibition Act, 1961 and are sentenced to suffer rigorous

imprisonment for a period of one year and to payment of fine of

Rs. 5,000/-. The appellants (hereinafter referred to as "the

accused") were also tried for offence punishable under section

306 of the Indian Penal Code ("IPC" for short) and have been

acquitted of the said offence.

2] Heard Shri. Kartik Shakul, learned counsel for the

appellants and Shri. H.R. Dhumale, learned Additional Public

Prosecutor for the respondent / State.

3] The prosecution case as is unfolded during the trial is

that Seema, the daughter of PW 11 - Sushilabai and PW 4 -

Yadavrao was engaged to accused 1 - Baburao. Accused -

Baburao was then a Constable with the Mumbai Police. The

marriage was arranged with the mediation of the maternal uncle

of Seema - Indras Patil (PW 2) who is a resident of Mumbai.

4] Concededly, the engagement took place at Akola on

14.8.1994 and the venue was Budhha Vihar, Ashok Nagar, Akola.

The accused and PW 2 came from Mumbai, had a meal at the

residence of the would be bride and then left for Mumbai. The

prosecution witnesses are stating in unison that at the time of

engagement, there was no demand for dowry.

5] The case of the prosecution is that after some weeks

or months (the timeline is blurred and the date can not be culled

out with any degree of certainty) Sushilabai (PW11) the mother of

Seema, went to Mumbai and the purpose of the visit was to fix the

date of the marriage. Sushilabai went to the house of her brother

Indras Patil (PW 2) and then from the house of PW2-Indras,

Sushilabai, Indras Patil, one Satyabhamabai, Devidas (PW5) and

Shilabai went to the house of the accused Baburao. All the five

accused were present at the house of accused 1. The accused

accused asked the mother and other relatives of Seema as to what

was the purpose of the visit and the response was that the purpose

was to settle the date of the marriage. It was then, that the

accused allegedly demanded Rs. 50,000/- in cash, gold chain and

gold ring and told Sushilabai and other relatives that if the said

demand is not fulfilled then the marriage be treated as cancelled.

6] The mother of the deceased Sushila returned to Akola

on the day of Diwali. She was asked by her husband PW4 as to

what transpired in Mumbai. PW-11 Sushilabai told her husband

PW4-Yadav that the accused demanded Rs.50,000/- in cash, gold

chain and gold ring and that if the demand is not fulfilled, the

marriage shall be treated as cancelled. This conversation was

overheard by Seema. Depressed due to the cancellation of

marriage, Seema committed suicide by setting herself afire. The

statement recorded by PW-13 as the dying declaration is Exh. 111.

7] The learned Sessions Judge was pleased to acquit the

accused of offence punishable under section 306 of IPC and

convicted all the accused under section 4 of the Dowry Prohibition

Act, 1961.

8] Shri. Kartik Shakul, the learned counsel for the

accused submits that the evidence on record is not credible and

the charge under section 4 of the Dowry Prohibition Act, is not

brought home beyond reasonable doubt. He would submit, that it

is not in dispute that there was absolutely no demand by any of

the accused when the engagement ceremony took place at Akola

on 14.8.1994. The prosecution witnesses have admitted that the

accused and his family members were aware of the economical

condition of the family of the would be bride. The learned counsel

for the accused would submit, that it is hardly probable that the

accused and his family who were aware of the poor economic

condition of the family of the would be bride and who admittedly

did not make any demand before or at the time of engagement,

will make a demand which to their knowledge the family of the

bride would find impossible to fulfill and that too, after lapse of

quite some time after engagement. The learned counsel for the

accused would also urge, that the evidence of the prosecution

witnesses is hardly confidence inspiring. He invites my attention

to the evidence of PW 2 - Indras Patil and PW 11 - Sushilabai and

in particular to the version that the family of the bride went to the

house of the accused unannounced and without a pre-

intimation. PW 11 states in her evidence that when she and

others went to the house of the accused, they were asked the

purpose of visit. Similarly, PW2 states that when he and others

reached the house of the accused, they informed the family of the

accused that the purpose was to fix the date of the marriage. The

learned counsel would urge, that if the family of the bride went

unannounced, the presence of the accused 1, his parents, the sister

of the accused and the husband of the sister of the accused

(brother in law) at the residence of accused 1 is highly improbable

and unnatural.

The learned counsel for the accused then urged, that even if

it is presumed arguendo that the marriage was cancelled by

Baburao or his family, there could possibly and plausibly be other

reasons for cancellation of marriage totally unconnected with any

demand for dowry. My attention is invited to the dying

declaration (Exh. 111). The dying declaration Exh. 111 records

that in view of the cancellation of marriage, Seema is not

interested in life. The dying declaration states that at the time of

engagement, Seema's father did not look after Baburao and his

family. The dying declaration further states that Baburao

demanded chain etc. The dying declaration further states that

since Baburao cancelled the engagement, Seema decided to end

her life. The submission is, that while the first reason which is

discernible which is the father of the deceased did not look after

Baburao and his family, is the factual perception of Seema, the

second statement that Baburao demanded chain etc. is what

seema overheard from the conversation between her parents or

what Seema learnt from her parents or other members of the

family. The learned counsel would submit, that if the dying

declaration is holistically considered, the possibility that the

engagement was cancelled not due to non-fulfilment of demand

for dowry but for other unconnected reasons, is not excluded.

Learned counsel would submit that the charge is not brought

home beyond reasonable doubt and the accused are therefore,

entitled to the benefit of doubt.

9] Shri. H.R.Dhumale, the learned APP supports the

judgment impugned and contends that there is overwhelming and

consistent evidence on record to prove the demand for dowry. He

would urge, that it is not only the family members of the deceased,

even PW5 who is not related to the family has deposed

consistently that the accused demanded dowry. The learned APP

would urge, that although, the prosecution witnesses speak about

the demand being made by all the accused and no specific words

or role is attributed to a particular accused, the prosecution is

entitled to seek the aid of section 34 of IPC and the common

intention of the accused to commit an offence punishable under

section 4 of the Act, is spelt out very clearly from the material on

record.

10] I have given my conscious consideration to the

evidence on record, the reasoning of the learned Sessions Judge

and the rival submissions.

11] Let me first note certain facts and features of the

prosecution case, which are not in dispute. It is not in dispute that

the family of Seema was not economically sound. It is further not

in dispute that the family of the accused were aware of the

economical status of the family of the bridegroom and that no

demand of whatsoever nature was made by the accused 1 or any

other relative before or at the time of the engagement. It is not

the case of the prosecution that prior to the alleged visit of PW2,

PW 11 and others to the residence of accused, either the accused

or any other relative conveyed to any member of the family of the

would be bride, including PW2 who is a resident of Mumbai, that

dowry will have to be paid. The demand even according to the

prosecution witnesses, was made only when PW11 went to

Mumbai to fix the date of the marriage. Concededly, the family of

the deceased Seema did not pre-intimate the accused or his family

that they would be visiting the accused to fix the date of the

marriage. In the teeth of the admitted position that PW2, PW11

and others went to the residence of the accused unannounced and

without any intimation, I see some justification in the contention

of the learned counsel for the accused, that the presence of the

accused 2 to 5 at the house of accused 1 at the same time is not

probable or natural. At any rate, and in any event, the presence of

accused 3 and accused 5 (brother in law and sister) of the accused

is quite unnatural and will have to be attributed only to a

coincidence since it is not the case of the prosecution that the

married sister of the accused and her husband and the accused

were residing jointly. I am not inclined to accept the version of

the prosecution that the presence of accused 3 and accused 5 is

natural since they residing the same locality. Be it noted, that it is

not the case of the prosecution witnesses that when they reached

the house of the accused, PW3 and PW5 were summoned or were

requested to come over. The version of the prosecution witnesses

is that PW3 and PW5 were already present when the prosecution

witnesses reached the house of the accused. Since the visit was

without pre-intimation and unannounced, the presence of at least

accused 3 and 5 appears to be unnatural in the house and too

much of a coincidence. The more logical explanation would be

the tendency of the family of the deceased to rope in every

possible relative of either the husband or any other person who in

the perception of the family of the deceased is somehow or the

other responsible for the death of either the daughter or the sister

of the prosecution witnesses. The instinctive reaction to implicate

every possible relative is not uncommon and such reaction has

been attributed to the anguish and anger due to the traumatic

death of the sister or the daughter and the perception that she

would not have died but for some wrong doing by either the

husband or any other relative or person. However, such false

implication of innocents does result in the guilty going scot free if

the prosecution fails to assign / allege specific role / acts to

individual accused. It is true, as is contended by the learned APP,

that even in offence of such nature, section 34 of IPC can be

invoked, but then in the factual matrix, I am not persuaded to hold

that the prosecution has established the necessary facts and

circumstances to bring into play section 34 of IPC. I do not agree

with the learned APP that the evidence on record is suggestive of

premediated concert or some preplanning or meeting of minds by

and / or between the accused. It would be apposite to make a

reference to the observations of the Hon'ble Supreme Court in

Pandurang and others ..vs.. State of Hyderabad, AIR 1955 S.C.

216 (Vol.42, C.N. 37), the relevant observations of which read

thus:

"32. Now in the case of section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all:- 'Mahbub Shah v. Emperor, AIR 1945 PC 118 at pp. 120 & 121 (B). Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting fo minds to form a pre-arrranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case : AIR 1925 PC 1 at pp 5 & 6(A) and AIR 1945 pc 118 (B). As their Lordships say in the later case, "the partition which divides their bounds is often very thin : nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of

justice".

"33. The plan need not be elaborate, nor is long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre- arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premediated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g. the intention to rescue another and, if necessary, to kill those who oppose".

"34. In the present case, there is no evidence of any prior meeting. We know nothing of what they said or did before the attack - not even immediately before. Pandurang is not even of the same caste as the others. Bilia, Tukia and Nilia are Lambadas, Pandurang is a Hatkar and Tukaram a Maratha. It is true prior concert and arrangement can, and indeed often must, be determined from subsequent conduct as, for example, by a systematic plan of campaign unfolding itself during the course of action which could only be referable to prior concert and pre-arrangement, or a running away together in a body or meeting together subsequently. But, to quote the Privy Council again.

"the inference of common intention should never be reached unless it is a necessary

inference deducible from the circumstances of the case".

But to say this is no more than to reproduce the ordinary rule about

circumstantial evidence, for there is no special rule of evidence for

this class of case. At bottom, it is a question of fact in every case and

however similar the circumstances, facts in one case cannot be used

as a precedent to determine the conclusion on the facts in another.

All that is necessary is either to have direct proof of prior concert, or

proof of circumstances which necessarily lead to that inference, or, as

we prefer to put it in the time-honoured way, "the incriminating

facts must be incompatible with the innocence of the accused and

incapable of explanation on any other reasonable hypothesis".

(Sarkar's Evidence, 8th edition, page 30)."

12] I have no hesitation in holding that the prosecution

has roped in and falsely implicated at least accused 3 and 5. That

apart, the evidence on record is not sufficient even to convict the

other accused. The golden principle is that an accused is

presumed to be innocent till every possibility of innocence is

excluded and the guilt is established beyond reasonable

doubt. The evidence, in my opinion, does not rule out

the possibility that the engagement was cancelled for

reasons unconnected with the alleged demand of dowry. The

deceased states in the dying declaration that Baburao and his

family were not looked after by her father at the time of

engagement. The prosecution witnesses have been suggested

another possibility which is that the family of the accused was

desirous of celebrating the marriage of the accused and his brother

Gautam together. The suggestion, which is of course denied, was

that the family of the would be bride was not inclined to wait and

this resulted in bad blood. I need not delve in great detail on what

must have transpired, suffice it to say that the possibility that the

engagement was cancelled by Baburao for reasons unconnected

with dowry demand, is a real possibility and has not been

excluded by the prosecution. If that be so, and two views can be

taken on the basis of evidence on record, one favouring the

accused and other against the accused, the benefit of the doubt

must be given to the accused.

13] On a overall appreciation of the evidence on record, I

am afraid, I can not agree with the learned Sessions Judge that the

prosecution has proved the charge under section 4 of the Dowry

Prohibition Act, 1961, beyond reasonable doubt.

The judgment impugned is set aside and the accused are

acquitted of offence punishable under section 4 of the Dowry

Prohibition Act, 1961.

Bail bonds stand discharged.

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

Appeal is disposed of accordingly.

JUDGE

Belkhede