Anil @ Anandrao Shamrao Datkar & 4 ... vs The State Of Mah. Thru Pso
2018 Latest Caselaw 735 Bom

                                                1                                           apeal566of06




                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    

                             NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.566 OF 2006


 1          Anil @ Anandrao Shamrao Datkar,
            aged about 24 years,

 2          Shamrao Yadavrao Datkar,
            aged about 55 years,

 3          Sau. Parbatabai w/o. Shamrao Datkar,
            aged about 45 years,

 4          Ku. Bali @ Vandana d/o. Shamrao Datkar,
            aged about 20 yars, 

 5          Balu @ Shivaji Shamrao Datkar,
            aged about 18 years, 

            All r/o. Village Amboda,
            Tahsil Mahagaon, District Pusad                                           ...APPELLANTS


                       VERSUS


 The State of Maharashtra, 
 through the P.S.O., Khandala,
 Tahsil Pusad, District Yavatmal                                            ....        RESPONDENT
     ------------------------------------------------------------------------------------------------------
          Shri K.S. Narwade, counsel for the appellants.
     Smt. S.Z. Haidar, Additional Public Prosecutor for the respondent.
  ------------------------------------------------------------------------------------------------
                                             CORAM        
                                                          : SMT. VASANTI A. NAIK &
                                                                       ROHIT B. DEO, JJ.

DATED : 20 JANUARY, 2018.

th

ORAL JUDGMENT : (PER : ROHIT B. DEO, J.)

The appellants - accused are taking exception to the

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judgment and order dated 13.9.2006 rendered in Sessions Trial 19 of

2000 by the Additional Sessions Judge, Pusad, by and under which, the

accused are convicted for offence punishable under section 498-A read

with section 34 of the Indian Penal Code ("IPC" for short) and are

sentenced to suffer rigorous imprisonment for three years and to

payment of fine of Rs.500/- and are further convicted for offence

punishable under section 304-B read with section 34 of IPC and

sentenced to suffer imprisonment for life and to payment of fine of

Rs. 1000/-. The accused are acquitted of offence punishable under

section 302 read with section 34 of the IPC.

2. Heard Shri K.S. Narwade, learned counsel for the accused

and Smt. S.Z. Haidar, learned Additional Public Prosecutor for the

respondent State.

3. Deceased Pushpa and accused 1 Anil Datkar entered into

matrimonial alliance on 9.5.1999. Pushpa suffered burn injuries on

23.10.1999 and expired on 1.11.1999 while undergoing treatment at

the Yavatmal Government Hospital.

4. Pushpa's father PW 1 Gangadhar Gore lodged report Exh.

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59 at Police Station Mahagaon on 5.11.1999 alleging that Pushpa was

illtreated by the accused to coerce her to fulfill dowry demand and on

the fateful day accused 3 Parbatabai - the mother in law of Pushpa

poured kerosene on Pushpa's person and accused 4 Bali Datkar - the

sister in law of Pushpa pushed her on the hearth with the result Pushpa

sustained severe burn injuries leading to her death on 1.11.1999.

PW 1 alleged in the said report that while undergoing treatment

Pushpa disclosed to one Digambar and his wife Indirabai Dongaonkar

(PW 2) the complicity of accused 3 Parbatabai and accused 4 Bali and a

similar disclosure was made by Pushpa to PW 1 on 23.10.1999.

Initially an accidental death inquiry was registered under section 174

of the Code of Criminal Procedure, 1974 ("Code" for short) and on the

basis of the report Exh. 59, Mahagaon Police registered offence

punishable under sections 498-A, 304-B and 302 read with section 34

of the IPC and sections 3 and 4 Dowry Prohibition Act against the

accused.

5. Upon culmination of investigation, Final Report under

section 173 of the Code was submitted in the Court of Judicial

Magistrate First Class, Mahagaon, who committed the proceedings to

the Sessions Court. The learned Sessions Judge framed charge

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(Exh. 38) for offence punishable under section 498-A, 304-B and 302

read with section 34 of the IPC. The accused abjured guilt and claimed

to be tried in accordance with law. The defence, as is discernible from

the statements of the accused recorded under section 313 of the Code,

is of total denial. However, the trend and tenor of the cross-

examination reveal that the further defence is that Pushpa suffered

accidental burn injuries.

6. The prosecution examined father of the prosecutrix

Gangadhar Gore (PW 1), a neighbour and family friend Indirabai

Dongaonkar (PW 2) and Investigating Officer (PW 3) Nivrutti

Dambalkar to substantiate the charge. The learned Sessions Judge,

was pleased to record a finding that the death was not accidental. The

learned Sessions Judge relied on the oral dying declarations in the

nature of disclosures made by Pushpa to PW 1 Gangadhar and PW 2

Indirabai and having done so, inexplicably recorded an incongruent

finding that homicidal death is not proved. Irrefutably, as is admitted

by the Investigating Officer Shri Nivrutti Dambalkar, a written dying

declaration was recorded in which Pushpa absolved the accused of any

complicity and stated that she suffered accidental burns while boiling

water. The written dying declaration was not produced alongwith the

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chargesheet. The learned Sessions Judge has brushed under the carpet

the written dying declaration on the premise that the written dying

declaration is not true and voluntary statement of Pushpa.

7. 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)"

8. 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

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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

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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.

Pushpa died within six months of the marriage and it is not in

dispute that the death is caused by burns. The pivotal issue is whether

the statutory presumption under section 113-A of the Indian Evidence

Act is activated. It is trite law, that in order to invoke the presumption,

the prosecution is obligated to show that the deceased was subjected to

cruelty or harassment by her husband or any other relative or in

connection with any demand of dowry. The clarificatory explanation

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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

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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)

9. Cruelty for the purpose of Section 498-A of IPC is

statutorily defined 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 fine.

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Explanation - For the purpose of this section, "cruelty" means -

(a) 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) 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."

It is a settled position that conduct which may constitute

cruelty under a matrimonial law or which may be a matrimonial offence

may not constitute cruelty for the purpose of Section 498-A of the IPC.

The conduct should be willful, which expression brings into play the

intent, and should be such as may cause danger to life, limb or health,

physical or emotional or to cause grave injury or which may drive the

woman to commit suicide. Explanation (b) of Section 498-A of the IPC

takes within its sweep harassment with a view to coerce the woman or

any person related to her to meet an unlawful demand for any property

or valuable security.

Before we proceed to consider the evidence of PW1 and

PW2 on cruelty to which the deceased Pushpa was allegedly subjected,

we must note that it is not rare that due to trauma suffered, the relatives

of the deceased indulge in false implication or over implication due to

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perceived grievance that the accused are somehow or the other

responsible for the death of their near and dear one. It would be

apposite to refer to the following observations of the Hon'ble Apex

Court in Sharad Birdhichand Sarda vs. State of Maharashtra reported

in AIR 1994 SC 1622 :

"In view of the close relationship and affection any person in the position of the witness would naturally have atendency to exaggerate or add facts which may not have been stated to them at all. This is human psychology and no one can help it. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer, the court has to examine the evidence of interested witnesses with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it."

10. We may now proceed to test the evidence on record on the

anvil of the statutory provisions and the law articulated by the Hon'ble

Apex Court. The version of PW1Gangadhar is that dowry of

Rs.25,000/- and 5 gm gold ring was to be given to the accused Anil in

marriage, however, Rs.5,000/- and gold ring remained to be given. This

led to the accused ill-treating Pushpa and the accused used to quarrel

with her, beat her and deprive her of food. The evidence that Rs.5,000/-

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was not paid, that the accused used to quarrel with Pushpa and beat her,

is an omission. PW 1 has deposed that before the festival of Panchami

accused 4 Bali pushed Pushpa in the well in an attempt to kill her. The

only other witness examined to prove cruelty is PW 2 Indirabai who

was residing in the neighbourhood of PW1 before shifting to Nanded.

PW 2 states that Pushpa disclosed to her that she was pushed in the well

by Bali. PW 2 further states that Pushpa disclosed to her that her

husband and family members are ill-treating her on the issue of balance

dowry. The evidence that before Panchami accused Bali attempted to

kill Pushpa by pushing her in the well is neither implicitly reliable nor

confidence inspiring. An attempt to murder going unreported is highly

improbable. Equally improbable and unnatural is the conduct of PW 1

of permitting Pushpa to reside in the matrimonial home despite the

alleged attempt on her life. The evidence on cruelty is too fragile to

record a finding that cruelty within the meaning of Explanation (a) or

(b) of Section 498-A of the IPC is established by the prosecution

beyond reasonable doubt. The evidence that Pushpa disclosed that she

was beaten by the accused and that the family of the accused used to

quarrel with her is an embellishment. A vague and omnibus assertion

that the accused ill-treated Pushpa is not sufficient to bring home the

charge under Section 498-A of the IPC. We are satisfied that since the

prosecution failed to prove that Pushpa was subjected to cruelty within

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the meaning of Section 498-A of the IPC, the statutory presumption

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

11. The learned Sessions Judge has relied on the alleged

disclosures made by Pushpa to PW 1 and PW 2 to the effect that

accused Parbatabai poured kerosene and accused Bali set her ablaze.

We are unable to persuade ourselves to concur with the learned

Sessions Judge. PW 1 admits that he did not inform either the hospital

doctors or the staff that such a disclosure was made to Pushpa. The

report Exhibit 59 is lodged four days after Pushpa's death. PW 2

Indirabai, who claims to have visited the hospital three to four days

after the incident, admits that she did not report the alleged disclosure

made by Pushpa to police although police were present in the hospital.

Concededly, the written dying declaration which absolves the accused

of any wrong doing is suppressed. We find it inexplicable that a written

dying declaration which is suppressed is held as untrue and unreliable

by the learned Sessions Judge only on the premise that the disclosures

made by Pushpa to PW 1 and PW 2 implicate the accused Parbatabai

and Bali. We are further impelled to observe, that the investigation is

unfair if not dishonest. The Investigating Officer admits that statements

of some persons of Dongaon were recorded, and the said persons stated

that Pushpa's flames were extinguished by one Kesharbai. The said

14 apeal566of06

statements are not produced on record nor is Kesharbai examined

although the Investigating Officer asserts that he did record her

statement. We have already held that the statutory presumption under

Section 113-B of the Indian Evidence Act is not activated. In the teeth

of the evidence on record, or rather the lack thereof, we are inclined to

hold that the prosecution has not proved the offence punishable under

Section 498-A and 304-B of the IPC beyond reasonable doubt.

12. The judgment and order impugned is set aside and the

accused is acquitted of the offence punishable under Section 498-A

read with Section 34 and Section 304-B read with Section 34 of the

IPC.

13. The bail bonds of the accused shall stand cancelled. Fine

paid by the accused be refunded to them.

14. The appeal is allowed and disposed of.

                                         JUDGE                              JUDGE




adgokar/belkhede