Shri Digambar Maniram Thavre vs State Of ...
2018 Latest Caselaw 1107 Bom

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

                     CRIMINAL APPEAL NO.312 OF 2002
                                 WITH
                      CRIMINAL APPEAL 420 OF 2002


                CRIMINAL APPEAL NO.312 OF 2002
 Shri Dibambar Maniram Thavre,
 aged about 31 years, 
 occupation Teacher (Service),
 R/o. Dhabe-Tekadi, 
 presently at Kinhi Mokhe,
 Tahsil Sakoli, Dist. Bhandara              ...APPELLANT

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

 The State of Maharashtra,
 Through Police Station Officer,
 Sakoli, District Bhandara                                         ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Mr.Shashikant Borkar, counsel for appellant. 
 Ms. Ritu Kalia, Addl. Public Prosecutor for respondent / State
 -----------------------------------------------------------------------------------------

                  CRIMINAL APPEAL 420 OF 2002
 State of Maharashtra,
 through Police Station Officer,
 Sakoli, Police Station Sakoli               APPELLANT

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

 Shri Dibambar Maniram Thavre,
 aged about 31 years, 
 occupation Teacher (Service),
 R/o. Dhabe-Tekadi, 
 presently at Kinhi Mokhe,
 Tahsil Sakoli, Dist. Bhandara                                        RRESPONDENT
 -------------------------------------------------------------------------------------------
 Ms. Ritu Kalia, Addl. Public Prosecutor for appellant.
 Mr.Shashikant Borkar, counsel for respondent.
 -------------------------------------------------------------------------------------------



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                                       CORAM:         ROHIT B. DEO, J. 

  DATE OF RESERVING THE JUDGMENT     
                                             
                                             : 20.11.2017
  DATE OF PRONOUNCING THE JUDGMENT        
                                             : 30.01.2018

 JUDGMENT

The appellant in Criminal Appeal 312 of 2002 is

challenging the judgment and order dated 4.6.2002 rendered by

1st Adhoc Additional Sessions Judge, Bhandara in Sessions Trial

149 of 1998 by and under which, the appellant - accused is

convicted for offence punishable under section 498-A of the Indian

Penal Code ("IPC) and under section 304-B of IPC and is

sentenced to suffer rigorous imprisonment for seven years and to

payment of fine of Rs. 300/-. No separate sentence is imposed for

offence punishable under section 498-A of IPC.

Criminal Appeal 420 of 2002 is preferred by the

respondent / State seeking enhancement of the sentence. Both

Criminal Appeal 312 of 2002 and Criminal Appeal 420 of 2002 are

heard together and decided by this common judgment.

2 Heard Shri Shashikant Borkar, the learned counsel for

the appellant - accused and Smt. Ritu Kalia, the learned Public

Prosecutor for respondent.

3 PW 3 Dinesh Vishwakarma,who is the father of

deceased Sangita lodged oral report dated 27.8.1998 at Police

Station, Sakoli (Exh. 32) on the basis of which the police

registered offence punishable under section 304-B of IPC against

the accused.

The gist of the oral report is that deceased Sangita, the

daughter of the informant, and the accused entered into

matrimonial alliance on 5.11.1996. The accused was unemployed

at the time of the marriage while Sangita was serving in a school

and was a permanent employee. She was posted at Khajri

(Dowargaon). Sangita was transferred to Kinhi (Mokhe) in July

1997 where she resided with the accused. In 1997, the accused

secured a job as a temporary employee at Jamdi fata.

Since the day of the marriage, the accused used to harass

Sangita and her family by frequently demanding money. He

demanded money from the informant for the B Ed training and the

informant obliged. The accused again demanded money for

securing employment, which demand was fulfilled by the

informant by borrowing money. The accused then pestered

Sangita to purchase motorcycle and started ill-treating her.

Sangita withdrew money from her bank account and purchased

motorcycle 2 to 3 months prior to her death. On the day of Rakhi

Pornima, the accused demanded Rs. 50,000/- from the informant

to purchase a plot. Informant did not have the money and told the

accused that the demand will be fulfilled soon by arranging

another loan. The accused also pressurized Sangita to change the

nomination in the life insurance policies taken out before marriage

and to substitute his name as nominee. The accused also

harassing Sangita since he wanted Sangita to sign consent letter in

his name to substitute his name as nominee to Sangita's provident

fund account. The accused accompanied by Life Insurance

Corporation (LIC) agent Bhandarkar was consistently pressurizing

the informant and Sangita to take out 2 to 3 LIC policies after

marriage. The oral report concludes by stating that the informant

is of the opinion that Sangita committed suicide since she was fed

up with the harassment at the hands of her husband.

4 Investigation ensued and upon completion thereof

charge sheet was submitted in the Court of Judicial Magistrate

First Class, Sakoli, who committed the case to the Sessions Court.

The learned Sessions Judge framed charge (Exh 11). The accused

abjured guilt. The defence is of total denial. The defence disputed

that the death is suicidal and suggested that the death is

accidental.

5 Section 304-B of the IPC was brought on the statute

book by the Dowry Prohibition Amendment Act, 1986, with the

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

Consequential amendments were effected in the Indian Evidence

Act and the Criminal Procedure Code. Offence punishable under

Section 304-B of the IPC was made non-bailable and triable by the

Sessions Court. Section 113-B was introduced in the Indian

Evidence Act which 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 Concededly, the statutory presumption under Section

113-B of the Indian Evidence Act is a presumption of law which

the Court is obligated to invoke, and the legislative intent is

manifested from the use of expression 'shall presume' in

contradiction with the expression "may presume" used in Section

113-A of the Indian Evidence Act. However, sine qua non for

taking recourse to the statutory presumption under Section 113-B

of the Indian Evidence Act is that the prosecution must prove

beyond reasonable doubt the ingredients of Section 304-B of the

IPC.

Section 304-B of the 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 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 purposes of this sub-

section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 2961).

(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 to Section 304-B(1) of the

IPC, it would be relevant to note the provisions of 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 (of 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 (Sharirat) applies.

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

The ingredients of Section 304-B 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.

7 Concededly, the death of Sangita is within

seven years of the marriage. The death is caused by burns.

The pivotal issue is whether the prosecution has established

beyond reasonable doubt that deceased Sangita was

subjected to cruelty or harassment by the accused for, or in

connection with, any demand for dowry.

The clarificatory explanation to section 113-A of the

Evidence Act is that for the purposes of section 113-A

cruelty shall be as defined in section 498-A of IPC. Such a

clarificatory explanation is not legislatively incorporated in

section 113-B of the Indian Evidence Act. However, it is

judicially recognized that the cruelty contemplated by

section 304-B of IPC and section 113-B of the Evidence Act

is the cruelty statutorily defined under explanation (a) and

(b) to section 498-A of IPC. Reference may be made to the

judgment of the Apex Court in Smt. Shanti and another v.

State of Haryana, AIR 1991 Supreme Court. The relevant

observations of which judgment read thus:-

"6. Now we shall consider the question as to whether the acquittal of the appellants of the offence punishable under S. 498-A makes any difference. The submission of the learned counsel is that the acquittal under S. 498-A, IPC would lead to the effect that the cruelty on the part of the accused is not established. We see no force in this submission. The High Court only held that S. 304D and S.498-A IPC, are mutually exclusive and that when once the cruelty envisaged in S. 498-A IPC culminates in dowry death of the victim, S. 304-B alone is attracted and in that view of the matter the appellants were acquitted under S.498-A IPC. It can therefore be seen that the High Court did not hold that the prosecution has not established cruelty on the part of the appellants but on the other hand the High Court considered the entire evidence and held that the element of cruelty which is also an essential of S.304-B IPC has been established. Therefore the mere acquittal of the appellants under S.498-A IPC in these circumstances makes no difference for the purpose of this case. However, we want to point out that this view of the High Court is not correct and sections 304-b and 498-A cannot be held to be mutually exclusive. These provisions deal with two distinct offences. It is true that "cruelty" is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A

gives the meaning of "cruelty". In S.304-B there is no such explanation about the meaning of "cruelty" but having regard to the common background to these offences we have to take that the meaning of "cruelty or harassment" will be the same as we find in the explanation to S.498-A under which "cruelty" by itself amounts to an offence and is punishable. Under Section 304-B as already noted, it is the "dowry death" that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in S.498-A and the husband or his relative would be liable for subjecting the woman to "cruelty" any time after the marriage. Further it must also be borne in mind that a person charged and acquitted under S. 304-B can be convicted u/ S.498-A without charge being there, if such a case is made out. But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under S. 498-A in view of the substantive sentence being awarded for the major offence under S.304-B.

                                                       (Emphasis supplied)


          8                PW   8   Shivram   Meshram   is   the   father   of   the

deceased who lodged oral report Exhibit 32. He has

deposed that in first visit to parental home after marriage,

Sangita narrated that the accused is demanding motorcycle

and is regularly pressurizing Sangita to substitute the

nominee in the first life insurance policy and to take out a

new policy. Since PW 8 did not have the funds to purchase

motorcycle, he gave his Luna and one cycle to the accused.

PW 8 then states that both Sangita and the accused came to

him and asked for money to enable the accused to obtain

the B.Ed. degree. PW 8 borrowed Rs.7,500/- and paid the

said amount to the accused. PW 8 has deposed that the

subsequent demand for money was made by the accused for

securing employment in Education Society at village

Jambhali Sadak. The accused demanded Rs.25,000/-, the

said amount was borrowed by PW 8 and paid to the

accused, is the deposition. The next demand to which PW 8

testifies is demand of Rs.50,000/- to purchase plot at Sakoli.

PW 8 states that in August 1998 Sangita and accused visited

him and the amount of Rs.50,000/- to purchase plot was

demanded.

9 The mother of the deceased, Smt. Annapurna (PW 9)

states that deceased Sangita was harassed and ill-treated by the

accused, who was demanding amount. She then states, that

Sangita conveyed that the accused is pressurizing her to substitute

the nominee in the GPF and insurance policies and to take out

another policy. She states that the accused demanded Rs.50,000/-

to purchase motorcycle, since the demand could not be fulfilled,

one Luna and ladies cycle were given to the accused. She then

states that both accused and deceased Sangita demanded money

to enable the accused to complete the B.Ed. course, PW 9 gave

Rs.5,000/- and her husband PW 8 gave some amount by taking

hand loan. PW 9 speaks of the accused having demanded

Rs.25,000/- to secure service at Jambhaji Sadak, which was paid.

PW 9 finally speaks of a demand of Rs.50,000/- to purchase plot at

Sakoli. The demand was made when deceased Sangita and the

accused came to visit her on the occasion of the Rakshabandhan

festival.

10 Bharat Bahekar (PW 1) is examined to bring on

record that P.W.8 borrowed Rs.7,500/- in June 1996. PW 1 states

that he availed loan from the society and paid the amount of

Rs.7,500/- to PW 8 in presence of the accused. In the cross-

examination, it is brought on record that PW 8 is also a member of

the co-operative society from which the loan of Rs.7,500/- was

availed by PW 1. It is extracted that the financial condition of PW

8 is better than PW 1 and that PW 8 Shivram Meshram could have

also taken the loan from the society.

11 P.W.2 Usha Paraskar has deposed that when she met

deceased Sangita in Gondia on the day of Rakshabandhan, it was

narrated to her by Sangita that PW 8 purchased motorcycle for the

accused and since we (Sangita and the accused) intend to

purchase plot at Sakoli, we need Rs.50,000/- and have come to

her parents for the said amount.

12 PW 3 Dinesh Vishwarkarma, who is panch to the

inquest panchanama (Exhibit 20) has deposed that when he met

Sangita in Gondia, she narrated to him that the accused harasses

her father for money. PW 3 then states that PW 8 Shivram

Meshram requested a hand loan of Rs.15,000/- to pay the amount

to accused. PW 3 states that the said amount of Rs.15,000/- was

paid by PW 8 Shivram to the accused in his presence.

13 The prosecution is relying on the evidence of PW 8

and PW 9, the father and mother of the deceased Sangita

respectively to establish that the accused harassed and ill-treated

the deceased Sangita to coerce her and her father to fulfill

unlawful demand and that the 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, which willful conduct

constitutes cruelty within the meaning of Explanation (b) of

Section 498-A of the IPC. The submission of the learned Counsel

for the accused, is even if the evidence of PW 8 and PW 9 is taken

at face value, demand per se would not constitute cruelty in the

absence of clinching evidence that the demand was accompanied

by ill-treatment. The learned Counsel for the accused would

contend that neither PW 8 nor PW 9 speak of any specific instance

of ill-treatment or any overt act by the accused constituting ill-

treatment. Use of stereotyped expression like "harassment" or "ill-

treatment" in the absence of the particulars and details of the

alleged harassment or ill-treatment, is not sufficient to establish

that the deceased was subjected to cruelty within the meaning of

Explanation (a) or (b) of Section 498-A of the IPC. Arguendo and

in the alternate, the submission is that the alleged cruelty or

harassment was not for, or in connection with, any demand for

dowry. These submissions are made by the learned Counsel for

the accused without prejudice to the submission that the

prosecution version that the afore referred demands were made, is

of doubtful veracity.

14 The submission of the learned Counsel for the accused

that demand per se, unaccompanied by ill-treatment or

harassment, would not constitute cruelty within the meaning of

Explanation (a) or Explanation (b) of Section 498-A of the IPC, is

well merited. I have scrutinized the evidence of PW 8 and PW 9

closely, and having done so, I am inclined to agree with the

submission of the learned Counsel for the accused that the

evidence is vague, bereft of particulars and other than use of

expressions like "harassment" and "ill-treatment", no specific

instance of harassment or ill-treatment is testified to by PW 8 and

PW 9. Except for the demand, which appears to have been jointly

made by the accused and deceased Sangita, for Rs.50,000/- for

purchasing plot, neither PW8 nor PW 9 have disclosed when was

the demand made by the accused. The version of PW 8 that

Rs.25,000/- was demanded to enable the accused to secure

employment is rendered doubtful since there is no evidence on

record to suggest that the accused was unemployed. Au contraire,

in the cross-examination of PW 8, several suggestions were given

to the effect that the accused was serving as Physical Teacher in

Katakwar High School, Sakoli and then as Lecturer of Marathi in

Rajiv Gandhi College, Sadak Arjuni. In response, PW 8 has

answered that he is not aware that the accused was employed as

Physical Teacher or as Lecturer. PW 8 volunteers that he was told

by the accused that he will be teaching a period of Marathi in a

college at Sadak Arjuni. It is admitted by PW 8 that the

motorcycle is purchased in the name of deceased Sangita by

availing finance from Berar Finance Limited, Nagpur. PW 8 claims

ignorance about installments or of the payment thereof by the

accused after the death of Sangita. The version of PW 9 Smt.

Annapurna that the accused demanded Rs.50,000/- to purchase

motorcycle is not consistent with the version of PW 8 who has not

spoken of any particular amount. This inconsistency apart, the

admitted fact that the motorcycle was purchased in the name of

Sangita by availing finance from Berar Finance Limited, Nagpur

renders suspect the prosecution case that the accused harassed or

ill-treated Sangita for or in connection with demand for amount to

purchase motorcycle.

15 The evidence on demand is fragile and at any rate the

prosecution has not established willful ill-treatment or harassment,

in the absence of which a demand would not per se constitute

cruelty. One of the sine qua non ingredients to constitute offence

punishable under Section 304-B of the IPC is not established. The

presumption under Section 113-B of the Indian Evidence Act is not

activated. The conviction of the accused for offence punishable

under Section 304-B of the IPC is not sustainable.

16 The evidence of Dr. Jayant Deshmukh (PW 11) is that

the history of the burn injury was given by deceased Sangita who

disclosed that she suffered accidental burn while filling kerosene

oil in the stove. PW 11, who then was Medical Officer attached to

Cottage Hospital, Sakoli, was declared hostile and cross-examined

by the learned Additional Public Prosecutor. PW 11 denied the

suggestion that Sangita was not in a position to talk. The

prosecution for reasons inexplicably has not examined the

investigating Officer. The learned Sessions Judge has made a

scathing observation that both PW 11 and the Investigating Officer

failed to discharge their duties. The learned Sessions Judge

insinuates that the Medical Officer and the Investigating Officer

were persuaded by extraneous considerations in recording the

statement of the doctor under Section 161 of the Criminal

Procedure Code. The learned Sessions Judge observes that

recording of statement under Section 161 of the Criminal

Procedure Code of the doctor is per se extra ordinary and the case

was treated as a "special case". The observations and insinuations

could have been avoided. The learned Sessions Judge has further

not given due weightage to the admitted position on record that

Shri Kapgate who extinguished the flames and suffered burn

injury to his palm in the process, was not examined as a witness

although he was cited as a witness and was present in the Court.

The submission of the learned Counsel for the accused, that the

possibility of an accidental death is not excluded, is not without

substance.

17 In view of the finding recorded that the prosecution

has not proved offence punishable under Section 304-B of the IPC

beyond reasonable doubt since it is not proved that the deceased

was subjected to cruelty within the meaning of Explanation (a) or

Explanation (b) of Section 498-A of the IPC, axiomatically the

accused must be acquitted also of offence punishable under

Section 498-A of the IPC.

18 In the result, I pass the following order :

(i) The judgment and order impugned is set aside and

the accused is acquitted of offence punishable under Section

498-A and 304-B of the IPC.

(ii) The bail bond of the accused shall stand discharged.

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

(iii) Criminal Appeal 420/2002 preferred by the State for

enhancement of sentenced is dismissed.

JUDGE

RS Belkhede, PA