Subhash Natthiuji Bhandare vs State Of Mah.Thr.Pso Washim
2018 Latest Caselaw 948 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.520 OF 2004


 Subhash Natthuji Bhandare,
 Aged about 28 years, Labourer,
 R/o Galamgaon, Tq. Manora, 
 District Washim                                                  ....     APPELLANT


                     VERSUS


 State of Maharashtra, 
 through Police Station, Manora, 
 Tq. Manora, District Washim.                                     ....     RESPONDENT

 ______________________________________________________________

  Shri Ashish Girdekar Advocate, h/f. Shri A.P. Tathod, Advocate for the
                                 appellant,
     Shri N.R. Patil, Additional Public Prosecutor for the respondent.
  ______________________________________________________________

                              CORAM : ROHIT B. DEO, J.

DATED : 25 JANUARY, 2018.

th

ORAL JUDGMENT :

The appellant is challenging the judgment and order dated

31-7-2004 passed by the learned Ad hoc Additional Sessions Judge,

Washim in Session Trial 97/2002, by and under which the appellant is

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

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

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imprisonment for one year and to payment of fine of Rs.500/- and is

further convicted for offence punishable under Section 304-B of the IPC

and is sentenced to suffer rigorous imprisonment for five years and to

payment of fine of Rs.1,000/-. The father and mother of the accused

Natthuji Parashram Bhandare and Sau. Shantabai Natthuji Bhandare

who were arrayed as accused 2 and 3 in the trial are acquitted.

2. Concededly, Babita whose marriage with the accused was

solemnized in 1997 expired on 17-5-2002 due to consumption of

poison.

The mother of the deceased Smt. Shakuntalabai (P.W.1)

lodged oral report on 24-5-2002 (Exhibit 25) at Police Station Manora

alleging that Babita was subjected to mental and physical harassment

in order to coerce her to satisfy dowry demand of Rs.20,000/-. P.W.1

states in the report that Rs.5,000/- was given to Babita on two separate

occasions to ensure that she did not suffer harassment at the hands of

her in-laws. Babita had visited the parental home eight days prior to

the birth anniversary of Dr. Babasaheb Ambedkar. Babita narrated that

she was subjected to mental and physical harassment by her husband

and in-laws who had asked her to bring Rs.10,000/- from the parental

home. P.W.1 states that since the amount was not available, Babita

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was persuaded to go back to her matrimonial house. P.W.1

Shakuntalabai states in the report that two daughters are born from the

wedlock. The elder daughter Neha is physically challenged and is deaf

and dumb. The younger daughter is hardly seven months old.

3. The Manora police registered offence punishable under

Sections 498-A and 304-B read with Section 34 of the Indian Penal

Code on the basis of the said report, investigation ensued and upon

completion thereof charge-sheet was submitted in the Court of Judicial

Magistrate First Class, Mangrulpir, who committed the proceedings to

the Sessions Court. The learned Sessions Judge framed charge (Exhibit

20) under Sections 498-A and 304-B of the IPC. The accused abjured

guilt and claimed to be tried in accordance with law. The defence of

the accused is of total denial. The trend and tenor of the cross-

examination would suggest that while denying that the deceased was

subjected to cruelty, the suggestion is that the family of the deceased

nurtured a grievance that the accused did not do enough to provide

medical aid to the deceased and the physically challenged daughter

Neha. The unfortunate death of Babita was traumatic and due to a

perceived grievance that the accused is somehow or the other

responsible for the death, he is falsely implicated.

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4. Heard Shri Ashish Girdekar, learned Advocate for the

accused and Shri N.R. Patil, learned Additional Public Prosecutor for

the respondent/State.

5. Record reveals, that since the sentence of five years

imposed by the learned Sessions Judge for offence under Section 304-B

of the IPC is less than the minimum mandated, this Court by order

dated 27-8-2004 was pleased to issue notice for enhancement of

sentence.

6. 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

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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)"

7. 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.

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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.

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          (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.

8. Concededly, the death is within five years of the marriage

and has occurred otherwise than in normal circumstances. The pivotal

issue is whether it is shown by the prosecution that soon before her

death Babita was subjected to cruelty or harassment by the accused for

or in connection with any demand for dowry.

9. The Explanation to Section 113-A of the Indian Evidence

Act clarifies that for the purposes of Section 113-A cruelty shall have

the same meaning as in Section 498-A of the IPC. Although such a

clarificatory explanation is not incorporated either in Section 113-B of

the Indian Evidence Act or Section 304-B of the IPC, it is judicially

recognized that the cruelty contemplated by the aforesaid statutory

provision is the cruelty statutorily defined in Explanations (a) and (b)

of Section 498-A of the IPC or cruelty akin thereto. Before the

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statutory presumption under Section 113-B of the Indian Evidence Act

is activated, the prosecution is obligated to discharge the burden of

proving each ingredient of Section 304-B of the IPC. Further the

cruelty or harassment for, or in connection with, any demand for

dowry to which the woman is subjected to, must be soon before her

death.

The expression "soon before her death" is considered in

various judicial pronouncements and the common threat which runs

through the plethora of decisions is that there cannot be a cut and

dried or straight jacket formula to determine what period will

constitute 'soon before her death'. The question is required to be

answered in the facts and circumstances of the case and the expression

is elastic and flexible enough to cover a wide ranging time line. It

would be apposite to note the observations of the Hon'ble Apex Court

in Raja Lal Singh v. State of Zharkhand reported in 2007 Cri.L.J.

3262, which read thus :

"18. It may be mentioned that the words "soon before her death" do not necessarily mean immediately before her death. As explained in Satvir Singh (supra), this phrase is an elastic expression and can refer to a period either immediately before death of the deceased or within a few days or few weeks before death. In other words, there should be a perceptible nexus between the death of the deceased and the dowry related harassment or cruelty inflicted on her."

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10. The prosecution has examined three relatives to prove that

the deceased was subjected to cruelty. P.W.1 Smt. Shakuntalabai

Wankhade who is the informant, is the mother, P.W.2 Uttam

Wankhade is the father and P.W.4 Smt. Sumitra Mohade is the sister of

deceased Babita. The evidence of P.W.2 Uttam Wankhade is of scant

assistance since the demeanour of the said witness persuaded the

learned Sessions Judge to record that the witness does not appears to

be of sound mind ('derailed' is the expression used by the learned

Sessions Judge). In effect, the only material witnesses examined to

prove cruelty would be P.W.1 Shakuntalabai and P.W.4 Sumitra.

11. Shri Ashish Girdekar, learned Advocate for the accused

invites my attention to the inordinate delay in lodging the first

information report. The submission is that there is absolutely no

explanation forth coming from the prosecution explaining the seven

days delay in lodging the first information report. The unexplained

delay would suggest a real possibility of false implication, is the

submission. I have given my anxious consideration to the evidence on

record in search of a possible explanation for the inordinate delay in

lodging the first information report, but in vain. The learned Advocate

for the accused is justified in questioning the veracity of the

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prosecution version on the ground that the first information report was

lodged belatedly after seven days of the incident and the delay remains

unexplained.

12. P.W.1 Shakuntalabai has deposed that for the initial two to

three years of marital life the deceased was treated well. It is

thereafter that she was ill-treated and was asked to bring Rs.20,000/-

from her parents, is the deposition. P.W.1 states that Babita used to

narrate the ill-treatment suffered at the hands of the accused and

P.W.1 and other family members used to persuade her to return to her

matrimonial home. The other incident of demand, according to P.W.1,

occurred when eight days prior to Dr. Babasaheb Ambedkar Jayanti

deceased Babita came to her parental home and disclosed that the

accused were demanding Rs.10,000/- and that she was beaten. P.W.1

states that she did not have Rs.10,000/- and gave Babita Rs.5,000/- for

being paid to the accused.

13. P.W.4 Sumitra has deposed that Babita was treated well

for a period of one year and then she was ill-treated by the accused.

The accused used to beat Babita to coerce her to bring Rs.20,000/-

from her parents as dowry and he was instigated by the in-laws of

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Babita, is the deposition. P.W.4 states that her mother (P.W.1) paid

Rs.5,000/- to Babita on two occasions. P.W.4 has deposed that when

she met Babita who had come home on the occasion of Dr. Babasaheb

Ambedkar Jayanti, Babita disclosed illegal demand of money to her

mother (P.W.1).

14. The evidence of P.W.1 Shakuntalabai and P.W.4 Sumitra is

inconsistent on material aspects. While according to P.W.1, Babita was

treated well for the initial two to three years of the marital life, P.W.4

states that the ill-treatment commenced after a year of the marriage.

P.W.4 states that on two occasions P.W.1 paid Rs.5,000/- to Babita,

while according to P.W.1, she paid Rs.5,000/- to Babita when she had

come home on the occasion of Dr. Babasaheb Ambedkar Jayanti.

P.W.1 Shakuntalabai did not attribute any active role to the parents of

the accused, in so far as the alleged demand of Rs.20,000/- made by

the accused which is testified to in paragraph 1 of the examination-in-

chief. P.W.4 Sumitra, however, states that the father and mother of the

accused used to instigate the accused 1 to ill-treat and torture Babita to

coerce her to fulfill the illegal demand of Rs.20,000/-. In so far as the

demand conveyed by Babita when she visited her parental home on the

occasion of Dr. Babasaheb Ambedkar Jayanti, P.W.4 states that Babita

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expressed fear that if the demand is not satisfied, the accused would

beat her. P.W.1, however, asserted that Babita disclosed that

Rs.10,000/- was demanded by her husband and in-laws and she was

beaten by her husband and in-laws to coerce her to fulfill the said

demand of Rs.10,000/-.

15. In the cross-examination of P.W.1, it is brought on record

that the two years old daughter Neha is deaf and dumb. The delivery

took place at the matrimonial home of Babita. P.W.1 candidly admits

that Babita's family nurtured a grievance that the accused was

negligent in providing proper medical treatment to Babita and Neha.

While P.W.1 admits that he was not aware as to whether the accused

was providing necessary medical treatment to Babita and Neha,

immediately in the next breath she asserts that she was confident that

the accused was deliberately avoiding to provide medical treatment to

Babita and Neha. P.W.1 admits that the second daughter Anjali was

born at Waigaul at the parental home of Babita. She denies the

suggestion that the second daughter Anjali is also deaf and dumb.

P.W.1, however, admits that the second daughter Anjali is mentally

challenged. She admits that the family of Babita used to accuse

Babita's husband Subhash of not providing proper medical treatment to

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Babita and Anjali. She admits that Babita's family used to express that

Anjali was not keeping good health since she is not provided

appropriate medical treatment.

P.W.1 admits that eight days prior to the death of Babita,

her younger daughter Anjali was suffering from fever and weakness.

P.W.1 states that she has no knowledge about doctor suspecting that

the younger daughter Anjali is likely to be deaf and dumb like Neha.

She admits that both the daughters Neha and Anjali are residing with

the accused. P.W.1 admits that Babita's family did not give anything to

the accused at the time of marriage nor was there any agreement to

pay any amount at the time of marriage. She admits that there was no

dispute regarding payment of dowry or any other article at the time of

marriage.

16. It is also extracted from P.W.4 that her parents (P.W.1 and

P.W.2) used to accuse Babita's husband and in-laws that proper

medical care was not provided to Babita and Neha. She is not in a

position to disclose the date, month or year in which the accused

allegedly demanded money.

17. The burning question is whether the deceased was

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

Section 498-A of the IPC. The evidence must be tested with caution

particularly as the first information report is lodged belatedly after

seven days of the death. No explanation is forth coming to justify the

delay. The only two witnesses who are material from the perspective

of the prosecution are not consistent on material aspects of the

prosecution version. The defence has successfully brought on record

that Babita's family nurtured a grievance that the accused did not do

enough to provide medical treatment to deceased Babita and the first

born Neha who concededly is deaf and dumb. The admitted fact that

the family of deceased Babita nurtured such a grievance and blamed

the accused not only for not providing proper medical care to the first

born Neha, but also for not providing proper medical aid and care to

the second daughter Anjali, assumes significance in the context of the

inordinate delay in lodging the report. The death of daughter or sister

is traumatic. It is not very uncommon that the family of the deceased

nurturing a perceived grievance that the accused and his family is

somehow or the other responsible of the death of the beloved daughter

or sister indulge in over exaggeration and over implication, if not false

implication.

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18. The general allegations bereft of details, muchless cannot

be the basis of conviction. The willful conduct must necessarily be

persistent and continuous. The willful conduct, at least, must be in

close proximity of time to the death. The evidence, which is not

implicitly reliable and confidence inspiring, that the deceased visited

her parental house eight days prior to Dr. Babasaheb Ambedkar Jayanti

and conveyed demand made by the accused may possibly be an

endeavour to satisfy the proximity test. The deceased was impelled to

commit suicide and a young life came to a premature end, however,

the prosecution has not established willful conduct of such nature as is

likely to have driven Babita to commit suicide nor has the prosecution

established willful conduct of such nature as would cause grave injury

or danger to life, limb or health. The defence has brought on record

that both the daughters are unfortunately either physically or mentally

challenged. The elder daughter Neha is concededly deaf and dumb.

The younger daughter Anjali is mentally challenged, as is admitted by

P.W.1. It would be an exercise in futility to search for the reason for

the extreme step taken by Babita. It is judicially recognized since

centuries that the thoughts of man are not triable, for the Devil himself

knoweth not what is in the mind of man. The prosecution has,

however, not discharged the burden of proving beyond reasonable

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doubt the ingredients of Section 304-B of the IPC and it is axiomatic

the statutory presumption under Section 113-B of the Indian Evidence

At was not activated.

19. The judgment and order is unsustainable in law and is set

aside.

20. The accused is acquitted of the offence punishable under

Sections 498-A and 304-B of the IPC.

21. The bail bond of the accused shall stand discharged.

22. The fine paid by the accused, if any, be refunded to him.

23. The appeal is allowed.

JUDGE adgokar