Bombay High Court
State Of Maha vs Majjd Pathan And Another on 30 January, 2021
Bench: R.V. Ghuge, B. U. Debadwar
..1.. CrAppeal No.271.2003
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.271 OF 2003
The State of Maharashtra
through Police Station Peth Beed
Through Ismile Syed Maheboob,
Age : Major, R/o. Ambikanagar, Talwada,
Tq. Georai, Dist. Beed .. Appellant
(Ori. Complainant)
Versus
1. Majid s/o. Shahabajakhan Pathan
Age : 24 years, Occu : Driver,
R/o. Islampura, Dist. Beed.
2. Halimabee w/o. Shahabajkhan Pathan
Age : 45 years, Occu : Household,
R/o. Islampura, Dist. Beed. .. Respondents
(Orig. Accused)
...
Mr K.S. Patil, APP for the Appellant / State
Mr P.P. More, Advocate for the Respondents (appointed)
....
CORAM : RAVINDRA V. GHUGE
AND
B. U. DEBADWAR, JJ.
Reserved on : 07-01-2021
Pronounced on : 30-01-2021
JUDGMENT (PER: B.U. DEBADWAR, J.) :-
1. This appeal has been directed under Section 378 (1)(b)
of the Code of Criminal Procedure, 1973 (hereinafter referred to as
the 'Cr.P.C.') against the judgment and order dated 13-12-2002
passed by the learned II Additional Sessions Judge, Beed in Sessions
..2.. CrAppeal No.271.2003
Case No.125 of 1997 whereby it has acquitted the respondents /
original accused for the offences punishable under Sections 498-A,
302, 201, 203, 177 r.w. 34 of the Indian Penal Code, 1860
(hereinafter in short 'IPC') .
2. Facts giving rise to the appeal, in nutshell, are as
under :-
a) Unfortunate young lady by name Shabana was the
daughter of Syed Ismile Syed Mehboob, resident of village Talwada,
Tal. Georai, Dist. Beed. She was given in marriage to respondent
no.1 Majid Pathan. Their marriage was performed in or about
February - 1996. Respondent no.2 - Halimabee Pathan is the mother
of respondent no.1 - Majid Pathan and mother-in-law of Shabana.
After marriage, Shabana started residing and cohabiting with
husband and in-laws at their house situated at Islampura locality of
Beed. Matrimonial life of Shabana was normal for few months after
the marriage, however, thereafter the respondents started demanding
Rs.10,000/- for commencing business and subjected her to cruelty on
account of non-fulfillment of the said demand. Meanwhile, Shabana
became pregnant.
..3.. CrAppeal No.271.2003
b) When she was in the 5th month of pregnancy, on
28-10-1996 Syed Ismile Syed Mehboob (father of Shabana) had been
to her matrimonial house at Islampur, Dist. Beed to see her. On his
visiting the house, Shabana disclosed to him (her father) not only
about the demand of Rs.10,000/- being made by the respondents, but
also about picking up quarrel by respondent no.2 for the reason of
respondent no.1's buying footwear for Shabana alone and not for her
daughter and taunting and insulting her (Shabana) on that count
continuously. Syed Ismile Syed Mehboob, after hearing about
aforesaid conduct of the respondents towards his daughter -
Shabana, told Shabana that at present the construction of the house
is going on, therefore, he cannot fulfill the demand of Rs.10,000/-,
however he will think about the fulfillment of demand of money
made by the respondents, when he would take her to his house at
Wadala for Diwali festival and left the house of respondents at about
03:00 p.m.
c) Three days thereafter i.e. on 31-10-1996 at about 03:00
a.m. Shabana was burnt extensively and died. Husband Majid
Pathan - respondent no.1, at about 04:35 a.m. on 31-10-1996, rushed
to the Police Station Peth, Dist. Beed and informed the Station House
Officer on duty about suicide committed by Shabana by burning
..4.. CrAppeal No.271.2003
herself, in a room adjacent to their bed room by closing and bolting
the same from inside.
d) Station House Officer on duty recorded aforesaid
statement of respondent no.1 in writing, registered A.D. No.16 of
1996 under Section 174 of the CrPC on the basis of said statement
and handed over the enquiry of the said A.D. to Mr Kundlik Tathe,
Police Inspector attached to said police station. Upon getting the
A.D. report, Mr Kundlik Tathe rushed to the house of the
respondents, verified the situation at spot, then prepared inquest
panchanama of the dead body of Shabana lying in the east-south
corner of the house in presence of the panchas, forwarded the dead
body of Shabana to the Civil Hospital, Beed for conducting
post-mortem along with the report and copy of inquest and thereafter
drew the spot panchanama of the spot where Shabana died due to
the extensive burns in presence of another two panch witnesses.
e) Meanwhile at about 04:00 p.m. on 31-10-1996, Syed
Ismile Syed Mehboob (father of Shabana) rushed to the police station
Peth, Dist.Beed and lodged the report against the respondents
inter alia contending that both the respondents being husband and
mother-in-law of Shabana made demand of Rs.10,000/- for
..5.. CrAppeal No.271.2003
commencing business and subjected her to cruelty for non-fulfillment
of the said demand. Shabana being fed up with the physical and
mental cruelty meted out by the respondents, committed suicide by
setting her ablaze and thus, the respondents are responsible for the
death of his daughter Shabana.
f) On the basis of aforesaid report, Station House Officer on
duty registered Crime No.123 of 1996 for the offences punishable
under Sections 498-A, 306 r.w. 34 of the I.P.C. Investigation of the
said crime commenced as expected.
g) During the course of investigation, Mr Kundlik Tathe,
Police Inspector recorded the statements of material witnesses, sent
articles seized from the spot, at the time of drawing spot
panchanama, to the Forensic Lab for examination and report,
through Lady Constable Kashyap and collected PM report and CA
reports. Meanwhile, his transfer took place. As such, he handed over
investigation to Mr Magar Tedhe, PSI attached to the said police
station, who looking to the cause of death of Shabana mentioned in
post-mortem report and the fact that blood was oozing from her ear
and the tongue was protruded from the mouth of Shabana, as was
revealing from the Inquest panchanama and the statement of the
..6.. CrAppeal No.271.2003
witnesses, he arrived at the conclusion that both the respondents, in
furtherance of their common intention not only subjected Shabana to
cruelty for coercing her to fulfill their demand / dowry of
Rs.10,000/-, but also committed murder of Shabana by assaulting
and hanging her and then burnt her dead body, for causing
disappearance of evidence and gave false information to the police
that Shabana committed suicide. Accordingly, with the due
permission of Chief Judicial Magistrate, Beed he added Sections 302
and 201 of the I.P.C. in FIR and on completion of investigation,
charge-sheeted the respondents before Chief Judicial Magistrate,
Beed.
h) After the case was committed from the Court of Chief
Judicial Magistrate, Beed, on 20-03-1998 learned 3 rd Additional
Sessions Judge, Beed vide Exh.5, framed the charge for the offences
punishable under Sections 498-A, 302, 201, 203 and 177 r.w. 34 of
the I.P.C. So framed charge was read over and explained to the
accused in vernacular. They pleaded not guilty and claimed to be
tried. Their defence as seen from the trend of cross-examination and
their statements recorded under Section 313 (1)(b) of the CrPC, was
that of total denial. None was examined in defence.
..7.. CrAppeal No.271.2003
i) Considering the evidence adduced by the prosecution
and on hearing the arguments advanced by the Additional Public
Prosecutor and the defence Counsel, learned II Additional Sessions
Judge, Beed acquitted both the respondents from all the charges
holding that evidence adduced by the prosecution is not at all
sufficient to prove beyond doubt that the respondents in furtherance
of their common intention subjected Shabana to cruelty on account
of non-fulfillment of their demand of Rs.10,000/- and not only
committed her murder, but also burnt her dead body, so as to
destroy the evidence and screen them from legal punishment,
therefore, they are entitled for acquittal.
j) Being aggrieved by the impugned judgment and order
acquitting the respondents for all the charges, the State has preferred
the present appeal under Section 478 (1) of the CrPC on various
factual and legal aspects mentioned in the appeal memo.
3. We have heard Mr K.S. Patil, learned APP for the
appellant / State and Mr P.P.More, learned Advocate for the
respondents.
4. While taking us through the oral and documentary
evidence adduced by the prosecution, Mr K.S. Patil, APP vehemently
..8.. CrAppeal No.271.2003
argued that, learned II Additional Sessions Judge, Beed completely
failed in appreciating the evidence in proper perspective and arrived
at a wrong conclusion. The impugned judgment and order of
acquittal is not only contrary to the evidence on record but also
contrary to the established principles of law. Learned Additional
Sessions Court, Beed failed to appreciate that Shabana died within 7
years of marriage while in the custody of respondents, who are her
husband and mother-in-law, and autopsy surgeon, who conducted
post-mortem on the dead body of Shabana, after having considered
histopathology Report opined that, "cardio respiratory failure due to
Asphyxia secondary to strangulation" was the cause of death of
Shabana. The learned Additional Sessions Judge, Beed should have
relied upon the probable cause of death of Shabana deposed by
autopsy surgeon, when nothing could be brought on record from his
cross-examination which would create doubt about his evidence as to
the cause of death of Shabana. After considering the medical
evidence, it is clear enough that, both the respondents mercilessly
beat Shabana and on realizing that assault committed by them had
resulted in death of Shabana, they burnt dead body of Shabana to
destroy the evidence and falsely pretended that she has committed
suicide by burning herself.
..9.. CrAppeal No.271.2003
5. Mr K.S. Patil, APP submits that having regard to the fact
that Shabana died while in the custody of respondents and
post-mortem findings including cause of death of Shabana reported
by autopsy surgeon after receiving histopathology report, learned
Additional Sessions Judge should not have acquitted the respondents
relying on ocular evidence of the witnesses examined by the
prosecution, more particularly report lodged by respondent no.1 at
Exh.37, though the respondents did not give any explanation about
fracture of hyoid bone and ocular evidence is clear enough about the
demand of Rs.10,000/- made by the respondents.
6. Thus, having regard to the medical evidence which
clearly speaks about physical harassment of Shabana soon before her
unnatural death coupled with demand of Rs.10,000/- in the form of
dowry, learned II Additional Sessions Judge should have at least held
the respondents guilty for the offences punishable under Sections
498-A and 304-B of the IPC. However, the learned II Additional
Sessions Judge, without going into the details of circumstances of the
case, evidence on record and settled position of law under Sections
498-A, 304-B of IPC wrongly gave clean chit to both the respondents
and acquitted them for all the charges. The impugned judgment
..10.. CrAppeal No.271.2003
being contrary to the facts of the case and legal provisions, the appeal
deserves to be allowed.
7. Per contra, Mr P.P. More, learned Advocate for the
respondents vehemently argued that, in spite of the fact that the
fracture of hyoid bone of Shabana noticed during the post-mortem,
autopsy surgeon reserved opinion as to the cause of death of Shabana
till receipt of the histopathology report. On the basis of aforesaid
finding he could have expressed his opinion. Since the prosecution
has failed to prove histopathology report by examining the expert
who issued the same, the opinion as to cause of death reported by
autopsy surgeon, subsequently on the basis of histopathology report
cannot be relied upon. The learned II Additional Sessions Judge
considering this aspect and testimony of Shaikh Shabbir Abdul Lateef
(PW-7), who is an independent witness rightly held that, charge
under Section 302 of IPC is not sustainable against the respondents.
Moreover, FIR lodged by Syed Ismile (PW-1) (father of the deceased
Shabana) not at all states that accused have committed murder of
Shabana, but states that the respondents have subjected Shabana to
cruelty on account of demand of Rs.10,000/-, compelled Shabana to
commit suicide and in pursuance of their abatement, she has
..11.. CrAppeal No.271.2003
committed the suicide, therefore, they are responsible for the suicidal
death of Shabana.
8. Having considered all these aspects, the learned II
Additional Sessions Judge, Beed rightly held that charge under
Section 302 of the IPC is not sustainable. Once the prosecution has
failed to prove the charge under Section 302 of IPC, question of
holding the respondents guilty for the charges under Sections 203,
177 r.w. 34 of the I.P.C. which are based on the charge under Section
302 of IPC holds no water and question of holding the respondents
guilty for the said charges does not arise.
9. As far as charge under Section 498-A of the IPC is
concerned, Shri P.P. More, learned Advocate argued that, the ocular
evidence of father, mother and sisters of Shabana, in respect of
demand of money and harassment and ill-treatment meted out to
Shabana by the respondents is very much ambiguous and
unsustainable. Therefore, on the basis of such evidence the
respondents cannot be held guilty for the charge under Section 498-A
of I.P.C. only for the reason that Shabana died due to extensive burns
within 7 years of marriage. Absolutely, there is no evidence showing
that, Shabana was subjected to any kind of physical or mental cruelty
..12.. CrAppeal No.271.2003
which is sufficient to drive her to commit suicide or to coerce her to
fulfill their demand of Rs.10,000/- covered by clauses (a) and (b) of
explanation of Section 498-A of IPC. Therefore, the finding of the
learned II Additional Sessions Judge regarding charge under Section
498-A of IPC, cannot be said to be incorrect or illegal. As far as
offence under Section 304-B of IPC, learned Advocate, Mr P.P. More
has submitted that though Shabana died of burns within 7 years of
marriage with respondent no.1, since evidence of harassment of
Shabana by the respondents in connection with demand of dowry
soon before death is lacking, the respondents cannot be held guilty
even for the offence under Section 304-B of the IPC, of which, no
charge is framed. While concluding his arguments Shri P.P. More,
Advocate submitted that, as per the settled law when view taken by
the trial Court appears to be probable, then that view cannot be
substituted by another view by the Appellate Court, thus, appeal is
liable to be dismissed.
10. In support of his submissions, Mr P.P. More has placed
his reliance on judgments of the Hon'ble Supreme Court, which
would be discussed at relevant places in further part of the
Judgment.
(i) S. Anil Kumar @ Anil Kumar Ganna Vs. State of Karnataka,
2013 (7) SCC 219
..13.. CrAppeal No.271.2003
(ii) Sunil Bajaj Vs. State of MP,
2001 AIR (SC) 3020
(iii) Satvir Singh Vs. State of Punjab,
2001 (8) SCC 633
(iv) Ramdeo s/o Pannalal Kadel Vs. The State of Maharashtra,
Criminal Appeal No.437 of 2011 with connected matters,
decided by the Division Bench of this Court on 14-08-2015
Whether Shabana died of homicidal death :-
11. To prove the nature of death of Shabana, the prosecution
has placed its reliance on the testimony of Dr Syed Abdul Bari,
autopsy surgeon, who conducted autopsy on the dead body of
Shabana, Post-mortem Report (Exh.28) and Cause of Death
Certificate (Exh.32).
12. Vide his deposition at Exh.27 Dr Syed Abdul Bari
(PW-10) deposed that, on 31-10-1996 he was working as a Medical
Officer, Civil Hospital, Beed. One dead body of Shabana Begum w/o
Majid was referred to him on that day for conducting post-mortem
examination, by Police Station Officer of Police Station Peth, Beed
along with requisition. Accordingly, he along with Dr A.M.
Deshpande performed post-mortem on the dead body of Shabana.
During the post-mortem, following surface wounds and injuries
..14.. CrAppeal No.271.2003
mentioned in column no.17 and other injuries mentioned in column
no.18 of post-mortem report Exh.28 found on the body of Shabana :-
17) Surface wounds and injuries their nature Burn wounds
position dimensions (measured) and 1) Head Neck face - 09%
directions to be accurately stated their 2) Anti trunk - 18%
probable age and causes to be noted if 3) Post trunk - 18%
bruises be present what is the condition 4) Perineum - 01%
of the subcutaneous tissues? 5) Rt Upper Extre - 09%
(N.B.:- When injuries are numberous 6) Lt Upper Extre - 09%
and cannot be mentioned within the 7) Rt lower Extre - 18%
space available they should be 8) Lt lower Extre - 18%
mentioned on a separate paper which 100%
should be signed) Superficial to deep burn.
18) Other injuries discovered by external Fracture of Hyoid bone +w.
examination or palpation as fractures
etc. Not definite about injuries
in column no.17.
(a) can you say definitely that the
(fracture) # Hyoid bone is
injuries showed against serial No.17 and
ante-mortem.
18 are date mortam injuries.
II) Internal Examination
13. Dr Syed Abdul Bari (PW-10) further deposed that, they
were not definite / sure about nature of aforesaid burn injuries
mentioned in column no.17, but were definite and sure about
fracture of hyoid bone mentioned in column no.18 and it was
ante-mortem. They did not find any internal injury to scalp and
skull. They found brain, meninges Pleura, Layrenx, Trachea, Bronchi,
right and left lung pericardium, Tongue, Pharynex Oesphagus,
Pancreas, liver spleen kidney congested. Besides, they found tongue
protruding, her left side empty, right side contained dark blood, so
..15.. CrAppeal No.271.2003
also they found 20 weeks foetus. They had preserved viscera in two
bottles. The bottle no.1 contained stomach with its contents, piece of
small intestine and it contents. The bottle no.2 contained pieces of
lungs, liver, spleen, kidney, heart and brain. The bottle no.3
contained pieces of skin for histopathology examination.
Post-mortem notes (Exh.28) were written by Dr A.M. Deshpande and
signed by they both. He identified his signature and signature of
Dr A.M. Deshpande appearing on Post-mortem report (Exh.28) and
stated that contents therein are true and correct.
14. According to Dr Syed Abdul Bari (PW-10), since they
were not sure about the nature of burns, to know about the same
they preserved viscera in bottle no.3 as referred above. They sent
bottle nos.1 and 2 to the Chemical Analyzer at Aurangabad and
bottle no.3, which was contained skin pieces, to the Professor and
Head of the Department, Pathology for histopathology examination.
After perusing CA Report he deposed that death of Shabana due to
poisoning was ruled out as no poison is detected in viscera preserved,
for chemical analysis, after chemical analysis done by chemical
analyzer, whereas after perusing histopathology report filed under
the list Exh.31, he deposed that, injuries mentioned in column no.17
of the Post-mortem report seems to be post-mortem. Thus, after
..16.. CrAppeal No.271.2003
perusing the aforesaid CA Reports, he along with Dr A.M. Deshpande
formed opinion as to the cause of death and i.e. "cardio respiratory
failure due to Asphyxia secondary to strangulation". Accordingly, he
issued Cause of Death Certificate (Exh.32). He has identified his
signature appearing on the same and contents therein.
15. In cross-examination, he has stated that hyoid bone
could be fractured in hanging or strangulation. The fracture of hyoid
bone can be rarely accidental. In Cause of Death Certificate (Exh.32)
specific reference of histopathology Report is not made. In further
cross-examination he has denied that in case of 100% burns, no other
cause of death can be determined. He has also very clearly denied
that, fracture of hyoid bone mentioned in column no.18 of the
post-mortem report was not ante-mortem.
16. Post-mortem Report (Exh.28) and Cause of Death Report
(Exh.32) fully corroborates the evidence of Dr Syed Abdul Bari
(PW-10), autopsy surgeon as to the findings of post-mortem,
preservation of viscera in 3 bottles and sending the same to Forensic
Lab, reserving opinion as to cause of death and forming opinion as to
the cause of death after receipt of CA Report and Histopathology
Report as referred above.
..17.. CrAppeal No.271.2003
17. The clear, cogent and consistent evidence of Dr. Syed
Abdul Bari as to the probable cause of death of Shabana mentioned
in Death Certificate (Exh.32) cannot be discarded, for the reason that
histopathology report issued by Professor and Head of the
Department of Pathology, Government Medical College, Aurangabad
has not been proved by examining Professor, who conducted
histopathology test.
18. As per Post-mortem Report (Exh.28) and evidence of
Dr Syed Abdul Bari (PW-10), who issued the same, fracture hyoid
bone was ante-mortem in nature and there is no evidence of
sustaining such fracture accidentally. Therefore, merely on the basis
of some stray admissions given by Kundlik Tathe, Investigating
Officer that first dead body of Shabana was taken out from the room
where she was found dead, kept in verandah and from there shifted
to the hospital for post-mortem, inference of suffering fracture to the
hyoid bone of Shabana after her death cannot be drawn. Thus, even
if nature of 100% burn injuries accepted, as post mortem injuries, as
opined by Dr Bari, autopsy surgeon is decided to be not considered as
histopathology Report Article 'A' is not proved by the examining
..18.. CrAppeal No.271.2003
medical expert who issued the same, then also it cannot be held that
Shabana met with an accidental death.
19. We are not at all in agreement with the finding of the
learned Additional Sessions Judge, Beed that fracture of hyoid bone
may have been caused while transporting the dead body.
20. The inquest panchanama (Exh.38) proved in the
evidence of Shaikh Ishaque Shaikh Hussain (PW-3) and Post-mortem
Report (Exh.28) proved in the evidence of Dr Syed Abdul Bari
(PW-10), autopsy surgeon, it is clear that Shabana had suffered
100% burns and her body was completely charred. Spot panchanama
(Exh.39) proved in the evidence of Kundlik Sampatrao Tathe
(PW-12) I.O., demonstrates that, the room where Shabana was
found in 100% burnt condition was a small room having roof of 6
corrugated tins with a door of 2 ½ x 5 feet. The bed room of
respondent no.1 - Majid and Shabana was situated on western side of
the said room. One tin jar having approximately two liters kerosene
oil, one wooden plank 1½ feet long burnt on one side, partly burnt
hair, partly burnt gunny bag, ash of the burnt clothes, a quilt burnt at
various places found lying in the said room, came to be seized. Spot
panchanama also indicates that, some clothes which were kept on the
..19.. CrAppeal No.271.2003
barrel, one winnowing basket kept on the wooden stool, one mirror
hanged on the western wall, electric fitting above the door and
flooring of the said room found to be hit by burns/flames.
21. Having regard to all these aspects reveal from the spot
panchanama, according to us, inference can not be drawn that while
burning, Shabana was moving in the room, as such aforesaid articles
were burnt. There is difference between getting burnt and hit by the
flames. Spot panchanama (Exh.38) not at all suggests that all the
aforesaid articles had burnt by coming into contact with burning
body of Shabana, but it clearly suggests that they were hit by the
burns / flames. Therefore, in no way it can be said that when
Shabana suffered burns, she was alive and struggling in room. CA
report Exh.29 (C) indicates that liquid in Tin / Jar (Article 'A') was
kerosene oil and kerosene residues detected on aforementioned
articles seized from spot.
22. Dr. Syed Bari (PW-10), autopsy surgeon, in his
cross-examination stated that, hyoid bone could be fractured in
hanging and strangulation and rarely in an accident. Absolutely there
is no evidence of strangulation. We have already discussed in para
supra as to how fracture of the hyoid bone cannot be accidental. In
..20.. CrAppeal No.271.2003
the case of hanging, one can hang himself or somebody hangs
another. In the case at hand, it is not the case of the prosecution that
the respondents hanged Shabana. Spot panchanama (Exh.39) also
does not say so. Besides, on the basis of evidence on record inference
also cannot be drawn that Shabana had hanged herself and therefore
her hyoid bone suffered fracture.
23. Thus, having regard to the totality of evidence, clear
opinion as to the nature of death of Shabana i.e. homicidal or suicidal
cannot be formed, but on the basis of evidence on record, it is clear
enough that, Shabana met an unnatural death.
24. Moreover, evidence of Shaikh Shabbir Abdul Lateef
(PW-7) rules out possibility of either assaulting or hanging or burning
Shabana by the respondents. Sk. Shabbir Abdul Lateef (PW-7) is an
independent witness and he being occupant of the room situated
near to the room where incident took place, as a tenant of
respondents his rushing to the spot on hearing hue and cry, appears
to be natural one.
25. Vide his deposition at Exh.23 Sk. Shabbir Abdul Lateef
(PW-7) deposed that, he had shifted to the premises of respondents
two months prior to the incident. The incident took place at 3
..21.. CrAppeal No.271.2003
O'clock in night. He heard screams / cries of deceased Shabana and
respondents. The room occupied by him as a tenant was only 15 to
20 feet away from the room where incident took place. On his
rushing to the room where incident took place he saw respondent
no.1 Majid pushing the door of the room as smoke was coming from
the said room. Respondent no.1 - Majid was pushing the door of the
said room from outside. He also helped respondent no.1 - Majid in
pushing the door. Since it did not open, he along with respondent
no.1 - Majid brought the grinding stone, hit the same on the door and
on hitting by such grinding stone, door of the room was opened,
which was chained from inside. After opening the door, he heard the
screams of Shabana for some time and then she died. He brought the
bedsheet and put the same on the dead body of Shabana. In his
cross-examination, he stated that, he saw both the respondents and
brother of respondent no.1 standing outside the door of the room
where incident took place. Before his coming, respondent no.1 and
his brother were trying to open the door by pushing the same
forcefully. In further cross-examination, Sk. Shabbir Abdul Lateef
(PW-7) very clearly stated that when incident took place Shabana
was alone in the room.
26. Evidence of Sk. Shabbir Abdul Lateef (PW-7), as
discussed above, clearly shows that deceased Shabana was alone in
..22.. CrAppeal No.271.2003
the room in question (spot of incident) when incident of her death
due to fracture hyoid bone and burning took place and the said room
was closed from inside. Therefore, even if on the basis of findings in
Post-mortem report (Exh.28) and cause of death of Shabana shown
in Cause of Death Certificate (Exh.32) it is accepted that Shabana
had met a homicidal death, then also the respondents cannot be
connected with the same as the room where the incident took place
was closed and chained from inside and the door of the said room
was broke open after the incident by respondent no.1 along with his
brother and Sk. Shabbir Abdul Lateef (PW -7).
27. It is pertinent to note that in a report (Exh.14) lodged by
Syed Ismile Syed Mehboob (PW-1) (father of the Shabana)
allegations of demand of money and harassment for coercing to fulfill
the said demand have been made against the respondents. Record
speaks volumes that after conducting post-mortem on the dead body
of Shabana ante-mortem fracture hyoid bone was noticed. However,
on the basis of ante-mortem fracture hyoid bone, autopsy surgeons
did not form their opinion as to the cause of death and they reserved
the same till receipt of the CA report and histopathology report of the
viscera preserved at the time of post-mortem and on receiving both
the reports they formed their opinion as to the cause of death that
..23.. CrAppeal No.271.2003
"cardio respiratory failure due to Asphyxia secondary to
strangulation". After receiving Cause of Death Report (Exh.32)
supplementary statements of witnesses were recorded and then
Section 302 of IPC was added in the charge-sheet. Thus, merely
relying on evidence of Syed Ismile Syed Mehboob (PW-1),
Mahmooda Ismile (PW-5), Ahmadbee w/o. Shabbir (PW-6) and
Ashabee Syed Ismile (PW-8) which is not based on their personal
knowledge but on the basis of opinion of cause of death given by
autopsy surgeon, case of the prosecution as far as murder of Shabana
by the respondents cannot be accepted.
28. Once the charge under Section 302 of IPC fails for the
reason referred to above, subsequent charges under Sections 201,
203 and 177 r.w. 34 of the I.P.C. for causing disappearance of the
evidence to screen themselves from the legal punishment, giving false
information regarding an offence committed and furnishing false
information to the public servant though legally bound to furnish true
information on the subject which he knows, bear no force and
substance. Thus, the only charge under Section 498-A of IPC remains.
29. Having regard to the case made out in the charge-sheet,
it was necessary on the part of II Additional Sessions Judge, Beed to
..24.. CrAppeal No.271.2003
frame charge under Section 304-B r.w. 34 of IPC in addition to
Section 498-A r.w. 34 of IPC. Admittedly, charge under Section
304-B r.w. 34 of IPC was not framed, therefore, question arises
whether in the absence of charge under Section 304-B IPC the
respondents /accused can be held guilty for the said charge, if on the
basis of evidence on record case for the said offence is made out. To
answer this question, we have to consider Sections 221, 222 and 464
of the CrPC which read as under :
"221. Where it is doubtful what offence has been
committed.-(1) If a single act or series of acts is of such a
nature that it is doubtful which of several offences the facts
which can be proved will constitute, the accused may be
charged with having committed all or any of such offences,
and any number of such charges may be tried at once; or
he may be charged in the alternative with having commit-
ted some one of the said offences.
(2) If in such a case the accused is charged with one
offence, and it appears in evidence that he committed a dif-
ferent offence for which he might have been charged under
the provisions of sub-section (1), he may be convicted of
the offence which he is shown to have committed, although
he was not charged with it."
222. When offence proved included in offence charged. -
(1) When a person is charged with an offence consisting of
several particulars, a combination of some only of which
constitutes a complete minor offence, and such
combination is proved, but the remaining particulars are
not proved, he may be convicted of the minor offence
though he was not charged with it.
(2) When a person is charged with an offence and facts
are proved which reduce it to a minor offence, he may be
convicted of the minor offence, although he is not charged
with it.
..25.. CrAppeal No.271.2003
(3) When a person is charged with an offence, he may
be convicted of an attempt to commit such offence
although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise
a conviction of any minor offence where the conditions
requisite for the initiation of proceedings in respect of that
minor offence have not been satisfied."
464. Effect of omission to frame, or absence of, or error in,
charge.-
(1) No finding, sentence or order by a Court of
competent jurisdiction shall be deemed invalid merely on
the ground that no charge was framed or on the ground of
any error, omission or irregularity in the charge including
any misjoinder of charges, unless, in the opinion of the
Court of appeal, confirmation or revision, a failure of
justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision
is of opinion that a failure of justice has in fact been
occasioned, it may-
(a) in the case of an omission to frame a charge, order
that a charge be framed and that the trial be
recommenced from the point immediately after the
framing of the charge;
(b) in the case of an error, omission or irregularity in the
charge, direct a new trial to be had upon a charge framed
in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of
the case are such that no valid charge could be preferred
against the accused in respect of the facts proved, it shall
quash the conviction."
30. In the case of Dinesh Seth Vs. State of NCT of Delhi,
(2008) 14 SCC 94, the Hon'ble Supreme Court having considered the
aforesaid provisions of the CrPC and ratio laid down by the larger
Bench in Dalbir Singh Vs. State of UP, 2004 SCC Cri.1592, in para
no.21 of the Judgment held as under :
..26.. CrAppeal No.271.2003
"21. The ratio of the above noted judgments is
that in certain situations an accused can be
convicted for an offence with which he may not
have been specifically charged and that an error,
omission or irregularity in the framing of charge is,
by itself not sufficient for upsetting the conviction.
The appellate, confirming or revisional Court can
interfere in such matters only if it is shown that
error, omission or irregularity in the framing of
charge has caused prejudice to the accused and
failure of justice has been occasioned."
31. In case at hand, though learned II Additional Sessions
Judge, Beed framed charge under Section 498-A IPC in addition to
Section 302 IPC, but did not frame charge under Section 304-B IPC
as alternate charge. However, having regard to the case of the
prosecution, evidence adduced by the prosecution and statement of
the accused under Section 313 (1)(b) of CrPC, it cannot be said that,
error, omission or irregularity in not framing the alternate charge
under Section 304-B IPC would cause prejudice to the respondents /
accused and failure of justice would occasion, if we consider the case
U/Sec.304-B of the IPC. As such, we have no difficulty in assessing
the evidence on record, to decide whether charge under Section
304-B r.w. 34 IPC is made out against the respondents / accused
when charge under Section 302 r.w. 34 IPC failed.
32. To prove the offences under Sections 498-A and 304-B of
IPC, the prosecution has mainly relied on the evidence of Syed Ismile
..27.. CrAppeal No.271.2003
Syed Mehboob (PW-1), Mahmooda Ismile (PW-5), Ahmadbee w/o.
Shabbir (PW-6) and Ashabee Syed Ismile (PW-8), who are father,
unmarried sister, married sister and mother of deceased Shabana,
respectively.
33. Syed Ismile Syed Mehboob (PW-1) vide his deposition at
Exh.13 deposed that, Shabana was one out of his five daughters. Her
marriage with respondent no.1 - Majid was solemnized in the year
1995. She died 8 months after the marriage. She was harassed for
dowry after about four months of marriage. Shabana told him that
her mother-in-law and sister-in-law coerced her to bring amount of
Rs.10,000/- from him. He told daughter Shabana that he is poor and
cannot fulfill the demand of Rs.10,000/-. He had been to the house of
the respondents three days prior to incident to see and meet
Shabana. At that time Shabana told him that respondent no.2 abused
her for the reason that respondent no.1 bought footwear only for her
and not for her daughter, upon which he suggested Shabana to
handover the footwear to her sister-in-law and he would bring other
footwear for her. Thereafter, he left the house of the respondents
and returned back to his village. On Thursday, on receiving the
information about burning of Shabana he rushed to Beed and saw the
dead body of Shabana lying in the house of the respondents. Her
..28.. CrAppeal No.271.2003
tongue was protruding and her hair were burnt. Shabana was
strangulated and burnt by the respondents for non-payment of the
amount. After 2 to 3 hours of the incident, he lodged the FIR
(Exh.14).
34. In cross-examination, he has admitted portion marked 'A'
and 'B' from the complaint (Exh.14), when read over to him. The
portion marked 'A' reveals that, after marriage Shabana had been to
her paternal house twice and returned back to her matrimonial house
living there for 2 to 4 days. He had visited the matrimonial house of
Shabana on two occasions. After marriage members from her marital
family treated her properly. He had been to the matrimonial house
of Shabana at Beed for 10 to 15 times to see and meet her. Portion
marked 'B' in the complaint (Exh.14) reveals that, on 31-10-1996
when he was present at his village Talwada one person from Beed
came there and informed them that Shabana burnt and died that
night. Accordingly, he along with his daughters, wife and relatives
rushed to Beed and saw Shabana, who was completely burnt and had
died.
35. Thus, aforesaid evidence of Syed Ismile Syed Mehboob
(PW-1) establishes following aspects :
..29.. CrAppeal No.271.2003
(a) Shabana died only after 8 months of marriage with
respondent no.1 - Majid.
(b) On his visit to the matrimonial house of Shabana at Beed
only three days prior to the incident, Shabana told him
about demand of Rs.10,000/- made by the respondents
and respondent no.2's abusing and harassing her for the
reason of her husband's buying footwear only for her and
not for her daughter (daughter of respondent no.2).
36. Though the evidence of Syed Ismile Syed Mehboob
(PW-1) as far as harassment of Shabana by the respondents after 4
months of marriage is out side the purview of complaint (Exh.14)
lodged by him and that omission has been brought on record by the
defence through his cross-examination, but failed to prove the same.
When Syed Ismile (PW-1) clearly states that he had stated the same
while lodging the complaint, but it does not appear in the complaint,
it was necessary on the part of accused / defence to get it proved, in
the evidence of Kundlik Tathe, I.O. (PW-12) who recorded the same
through his writer, but failed to do so.
37. It is true that, in examination-in-chief Syed Ismile Syed
Mehboob (PW-1) stated about Shabana's disclosing him about
coercing her for bringing amount of Rs.10,000/-, from her father, by
..30.. CrAppeal No.271.2003
mother-in-law and sister-in-law. When prosecution has not at all
come with the case of harassment of Shabana by sister-in-law for
coercing her to bring Rs.10,000/- from her father and same is neither
covered by the complaint (Exh.14) or statements of material
witnesses recorded in the course of investigation, the aforesaid
statement of Syed Ismile Syed Mehboob (PW-1) to the extent of
"sister-in-law" appears to have been made mistakenly. On
considering the totality of his evidence, it becomes quite clear that
the aforesaid evidence of Syed Ismile Syed Mehboob (PW-1) is
against respondents i.e. husband and mother-in-law of Shabana.
38. The evidence of Syed Ismile Syed Mehboob (PW-1) is
silent as to the purpose for which Rs.10,000/- was demanded, though
in complaint (Exh.14) lodged by him the same is mentioned.
However, from totality of evidence of Syed Ismile Syed Mehboob
(PW-1) it can be gathered very well that the demand of Rs.10,000/-
was in connection with marriage and the in-laws expected the father
(of their daughter-in-law) to fulfill their demand.
39. Mahmooda Ismile (PW-5) was unmarried sister of
Shabana. Vide her deposition at Exh.19 she deposed that, Shabana,
her elder sister, was given in marriage to respondent no.1. She died
..31.. CrAppeal No.271.2003
about only 8 months after her marriage. She was treated well for 4
months and thereafter she was harassed and ill-treated. The
respondents used to misbehave with Shabana and also used to taunt
her. Shabana disclosed her about the same.
40. In cross-examination, Mahmooda Ismile (PW-5) had
admitted portion marked 'A' in her statement under Section 161 of
CrPC recorded by the police on 31-10-1996, which states that her
sister Shabana after marriage had been to Talwada (her paternal
village) twice. After staying there for 2 to 4 days, she returned back
to her matrimonial home, on both the occasions. Family members of
matrimonial family of Shabana used to behave with her properly.
41. In further cross-examination, Mahmooda Ismile (PW-5)
stated that, she had told police that Shabana was ill-treated and
harassed for about 4 months for fulfilling demand of Rs.10,000/-, she
was misbehaved and was taunted and she (Shabana) disclosed the
same to her. Though the defence has brought this omission on
record through cross-examination of Mahmooda Ismile (PW-5), but
failed to prove the same by confronting her previous statement to
Magar Tedhe (PW-9), Investigating Officer in his cross-examination.
Therefore, omission referred above cannot be considered.
..32.. CrAppeal No.271.2003
42. Ahmadbee Sk. Shabbir (PW-6), one more married sister
of Shabana, vide her deposition at Exh.20 deposed that, Shabana
died after about 7 months of marriage with respondent no.1 - Majid.
After marriage, Shabana was living with her husband and in-laws at
her matrimonial house. She was treated well for about 4 months and
ill-treated thereafter. After marriage, Shabana had been to their
house at Talwada twice and told that the respondents ill-treat her.
Prior to the incident, there was quarrel on account of footwear and
father asked Shabana to give footwear to sister-in-law. Demand of
Rs.10,000/- was made by the respondents and she heard about the
same from Shabana when she was disclosing to mother.
43. In cross-examination, she had stated that she told police
while recording her statement that Shabana was well treated for four
months and thereafter ill-treated for remaining four months by the
respondents. However, the defence has not proved the said omission
in the cross-examination of Magar Tedhe, Investigating Officer, who
recorded her statement under Section 161 of CrPC on 31-10-1996.
44. Ashabee (PW-8) (mother of Shabana) vide her
deposition at Exh.24 deposed that, Shabana was married to
..33.. CrAppeal No.271.2003
respondent no.1 - Majid Pathan. She died only after 8 months of
marriage. Out of 8 months, Shabana's matrimonial life for first four
months was normal, however thereafter she was ill-treated. Shabana
had come to their house twice. Shabana told her that her in-laws
demand Rs.10,000/- and taunted her. Prior to the death of Shabana,
her husband Syed Ismile had gone to the house of the respondents to
meet daughter Shabana. At that time Shabana complained that
respondent no.2 / mother-in-law raised quarrel over the issue of
buying footwear for her and not for her daughter (daughter of
respondent no.2). Rs.10,000/- was demanded by both the
respondents. Her husband asked Shabana to handover the footwear
to her sister-in-law and he would buy another footwear for her. Only
after two days of such incident, one person from Beed came to their
house at 7 O'clock in the morning and informed them about the
incident. Upon receiving such information, she along with husband
Syed Ismile and other two rushed to Beed at the house of the
respondents and saw the dead body of daughter Shabana, which was
fully burnt. According to Ashabee (PW-8), her daughter Shabana
was strangulated and killed and then burnt by the respondents.
45. In cross-examination she has denied portion marked 'A'
in her statement under Section 161 of CrPC shown and read over to
..34.. CrAppeal No.271.2003
her and stated that, she had not stated the same to the police. On the
contrary, she had stated to the police that, the respondents treated
her daughter Shabana well for four months and thereafter ill-treated
her. It is pertinent to note that, though this contradiction was brought
on record after confronting her previous police statement, but same
was not proved by confronting the same to Kundlik Tathe (PW-12),
I.O. in his cross-examination.
46. In further cross-examination, she has stated that, she had
stated to the police that when her daughter came to their house, she
told them about demand of Rs.10,000/- made by the respondents
and ill-treatment meted out by them. Though this omission is brought
on record through her cross-examination, but not proved by
confronting the same to Kundlik Tathe (PW-12), I.O. in his
cross-examination.
47. In the case of V.K. Mishra and Anr Vs. State of
Uttarakhand and Anr and Rahul Mishra Vs. State of Uttarakhand and
Anr, AIR 2015 SC 3043, the Hon'ble Apex Court while dealing with
the issue of contradiction vis-a-vis Section 161 of CrPC and Section
145 of the Indian Evidence Act, 1872 (hereinafter, Evidence Act)
ruled as under :
..35.. CrAppeal No.271.2003
"14. Section 161 Cr.P.C. titled "Examination of witnesses
by police" provides for oral examination of a person by any
investigating officer when such person is supposed to be
acquainted with the facts and circumstances of the case. The
purpose for and the manner in which the police statement
recorded under Section 161 Cr.P.C can be used at any trial
are indicated in Section 162 Cr.P.C. Section 162 Cr.P.C. reads
as under:
162. Statements to police not to be signed-Use of
statements in evidence. -(1) No statement made by any
person to a police officer in the course of an investigation
under this Chapter, shall, if reduced to writing, be signed by
the person making it; nor shall any such statement or any
record thereof, whether in a police diary or otherwise, or any
part of such statement or record, be used for any purpose,
save as hereinafter provided, at any inquiry or trial in respect
of any offence under investigation at the time when such
statement was made:
Provided that when any witness is called for the prosecution
in such inquiry or trial whose statement has been reduced
into writing as aforesaid, any part of his statement, if duly
proved, may be used by the accused, and with the permission
of the Court, by the prosecution, to contradict such witness in
the manner provided by Section 145 of the Indian Evidence
Act, 1872 (1 of 1872); and when any part of such statement
is so used, any part thereof may also be used in the
re-examination of such witness, but for the purpose only of
explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any
statement falling within the provisions of clause (1) of section
32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect
the provisions of section 27 of that Act.
Explanation.- An omission to state a fact or circumstance in
the statement referred to in sub-section (1) may amount to
contradiction if the same appears to be significant and
otherwise relevant having regard to the context in which such
omission occurs and whether any omission amounts to a
contradiction in the particular context shall be a question of
fact.
15. Section 162 Cr.P.C. bars use of statement of witnesses
recorded by the police except for the limited purpose of
contradiction of such witnesses as indicated there. The
statement made by a witness before the police under Section
161 (1) Cr.P.C. can be used only for the purpose of
contradicting such witness on what he has stated at the trial
as laid down in the proviso to Section 162 (1) Cr.P.C. The
..36.. CrAppeal No.271.2003
statements under Section 161 Cr.P.C. recorded during the
investigation are not substantive pieces of evidence but can
be used primarily for the limited purpose:- (i) of
contradicting such witness by an accused under Section 145
of Evidence Act; (ii) the contradiction of such witness also by
the prosecution but with the leave of the Court and (iii) the
re-examination of the witness if necessary.
16. Court cannot suo moto make use of statements to police
not proved and ask question with reference to them which
are inconsistent with the testimony of the witness in the
court. The words in Section 162 Cr.P.C. "if duly proved"
clearly show that the record of the statement of witnesses
cannot be admitted in evidence straightway nor can be
looked into but they must be duly proved for the purpose of
contradiction by eliciting admission from the witness during
cross-examination and also during the cross-examination of
the investigating officer. Statement before the investigating
officer can be used for contradiction but only after strict
compliance with Section 145 of Evidence Act that is by
drawing attention to the parts intended for contradiction.
17. Section 145 of the Evidence Act reads as under:
145. Cross-examination as to previous statements in writing.-
A witness may be cross-examined as to previous statements
made by him in writing or reduced into writing, and relevant
to matters in question, without such writing being shown to
him, or being proved; but, if it is intended to contradict him
by the writing, his attention must, before the writing can be
proved, be called to those parts of it which are to be used for
the purpose of contradicting him.
18. Under Section 145 of the Evidence Act when it is
intended to contradict the witness by his previous statement
reduced into writing, the attention of such witness must be
called to those parts of it which are to be used for the purpose
of contradicting him, before the writing can be used. While
recording the deposition of a witness, it becomes the duty of
the trial court to ensure that the part of the police statement
with which it is intended to contradict the witness is brought
to the notice of the witness in his cross-examination. The
attention of witness is drawn to that part and this must reflect
in his cross-examination by reproducing it. If the witness
admits the part intended to contradict him, it stands proved
and there is no need to further proof of contradiction and it
will be read while appreciating the evidence. If he denies
having made that part of the statement, his attention must be
drawn to that statement and must be mentioned in the
deposition. By this process the contradiction is merely
brought on record, but it is yet to be proved. Thereafter when
..37.. CrAppeal No.271.2003
investigating officer is examined in the court, his attention
should be drawn to the passage marked for the purpose of
contradiction, it will then be proved in the deposition of the
investigating officer who again by referring to the police
statement will depose about the witness having made that
statement. The process again involves referring to the police
statement and culling out that part with which the maker of
the statement was intended to be contradicted. If the witness
was not confronted with that part of the statement with
which the defence wanted to contradict him, then the court
cannot suo moto make use of statements to police not proved
in compliance with Section 145 of Evidence Act that is, by
drawing attention to the parts intended for contradiction."
48. In the case at hand, as discussed above, the defence has
brought on record omissions by confronting the same with their
statements recorded under Section 161 of Cr.P.C., but not proved the
same in the evidence of Kundlik Sampatrao Tathe (PW-12), I.O. by
confronting the statement alleged to be an omission and question
about the same. Therefore, in view of aforesaid ratio laid down by
the Hon'ble Supreme Court that the alleged omissions brought on
record through the evidence of aforesaid three witnesses viz.
Mahmooda Ismile (PW-5), Ahmadbee Shabbir (PW-6) and Shaikh
Shabbir Abdul Lateef (PW-7) cannot be looked into for any purpose,
much less, to discredit their testimonies and version of the
prosecution.
49. Thus, on the basis of testimonies of Syed Ismile (PW-1),
Mahmooda Ismile (PW-5), Ahmadbee w/o. Shabbir (PW-6) and
..38.. CrAppeal No.271.2003
Ashabee Syed Ismile (PW-8), discussed above, and law pertaining to
contradiction and omission laid down by the Hon'ble Supreme Court,
discussed in para supra, it becomes clear that short matrimonial life
of Shabana was not peaceful or happy, but she was harassed mentally
by abusing and taunting by the respondents for fulfilling their
demand of money.
50. In the case of Bachni Devi and Another Vs. State of
Haryana, (2011) 4 SCC 427, the Hon'ble Supreme Court in
paragraph nos.11 to 18 held as under :
"11. Section 304B was inserted in IPC with effect from November
19, 1986 by the Dowry Prohibition (Amendment) Act, 1986 (for
short, `(Amendment) Act, 1986'). Thereby substantive offence
relating to `dowry death' was introduced in the IPC. Section 304-B
IPC reads as follows :
"304B. 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 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."
..39.. CrAppeal No.271.2003
12. For making out an offence of `dowry death' under Section
304B, the following ingredients have to be proved by the
prosecution:
(a) death of a woman must have been caused by
any burns or bodily injury or her death must have
occurred otherwise than under normal
circumstances;
(b) such death must have occurred within seven
years of her marriage;
(c) soon before her death, she must have been
subjected to cruelty or harassment by her husband or
any relative of her husband; and
(d) such cruelty or harassment must be in connection
with the demand for dowry.
13. Pertinently, for the purposes of Section 304B IPC, `dowry' has
the same meaning as in Section 2 of the Dowry Prohibition Act,
1961 (for short, `1961 Act'). Section 2 of the 1961 Act defines
"dowry" as follows:
"2. Definition of `dowry'.- "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.
Explanation I-(Omitted).
Explanation II--The expression "valuable security" has the
same meaning as in section 30 of the Indian Penal Code (45
of 1860)."
14. The 1961 Act was enacted to prohibit the giving or taking of
`dowry' and for the protection of married woman against cruelty
and violence in the matrimonial home by the husband and in-laws.
The mere demand for `dowry' before marriage, at the time of
marriage or any time after the marriage is an offence. The 1961 Act
..40.. CrAppeal No.271.2003
has been amended by the Parliament on more than one occasion
and by the (Amendment) Act, 1986, Parliament brought in stringent
provisions and provided for offence relating to `dowry death'. The
amendments became imperative as the dowry deaths continued to
increase to disturbing proportions and the existing provisions in
1961 Act were found inadequate in dealing with the problems of
dowry deaths. The definition of `dowry' reproduced above would
show that the term is defined comprehensively to include properties
of all sorts as it takes within its fold `any property or valuable
security' given or agreed to be given in connection with marriage
either directly or indirectly.
15. In S. Gopal Reddy v. State of A.P.2, this Court stated as
follows : (SCC pp. 605-06, paras 9 & 11)
"9. The definition of the term `dowry' under Section 2
of the Act shows that any property or valuable security
given or "agreed to be given" either directly or
indirectly by one party to the marriage to the other
party to the marriage " at or before or after the
marriage" as a "consideration for the marriage of the
said parties" would become `dowry' punishable under
the Act. Property or valuable security so as to constitute
`dowry' within the meaning of the Act must therefore
be given or demanded "as consideration for the
marriage".
* * *
11. The definition of the expression `dowry'
contained in Section 2 of the Act cannot be confined
merely to the `demand' of money, property or valuable
security "made at or after the performance of marriage"
as is urged by Mr Rao. The legislature has in its wisdom
while providing for the definition of `dowry'
emphasised that any money, property or valuable
security given, as a consideration for marriage, "before,
at or after" the marriage would be covered by the
expression `dowry' and this definition as contained in
Section 2 has to be read wherever the expression
`dowry' occurs in the Act. Meaning of the expression
`dowry' as commonly used and understood is different
than the peculiar definition thereof under the Act.
Under Section 4 of the Act, mere demand of `dowry' is
sufficient to bring home the offence to an accused.
Thus, any `demand' of money, property or valuable
security made from the bride or her parents or other
relatives by the bridegroom or his parents or other
relatives or vice versa would fall within the mischief of
`dowry' under the Act where such demand is not
..41.. CrAppeal No.271.2003
properly referable to any legally recognised claim and is
relatable only to the consideration of marriage.
Marriage in this context would include a proposed
marriage also more particularly where the non-
fulfillment of the "demand of dowry" leads to the ugly
consequence of the marriage not taking place at all.
The expression `dowry' under the Act must be
interpreted in the sense which the statute wishes to
attribute to it...............The definition given in the
statute is the determinative factor. The Act is a piece of
social legislation which aims to check the growing
menace of the social evil of dowry and it makes
punishable not only the actual receiving of dowry but
also the very demand of dowry made before or at the
time or after the marriage where such demand is
referable to the consideration of marriage. Dowry as a
quid pro quo for marriage is prohibited .......... ."
(emphasis in original)
16. While dealing with the term `dowry' in Section 304B IPC, this
Court in the case of Kamesh Panjiyar @ Kamlesh Panjiyar v. State of
Bihar (2005) 2 SCC 388 held as under : (SCC p.395, para 14)
"14. The word "dowry" in Section 304-B IPC has to
be understood as it is defined in Section 2 of the Dowry
Act. Thus, there are three occasions related to dowry.
One is before the marriage, second is at the time of
marriage and the third "at any time" after the marriage.
The third occasion may appear to be unending period.
But the crucial words are "in connection with the
marriage of the said parties"... As was observed in the
said case "suicidal death" of a married woman within
seven years of her marriage is covered by the expression
'death of a woman is caused ... or occurs otherwise than
under normal circumstances' as expressed in Section
304-B IPC."
17. The learned counsel for the appellants heavily relied
upon the following observations made by this Court in the case of
Appasaheb v. State of Maharashtra (2007) 9 SCC 721: (SCC p. 727,
para 11)
"11. .... A demand for money on account of some
financial stringency or for meeting some urgent
domestic expenses or for purchasing manure cannot be
termed as a demand for dowry as the said word is
normally understood".
18. The above observations of this Court in Appasaheb case must
be understood in the context of the case. That was a case wherein
..42.. CrAppeal No.271.2003
the prosecution evidence did not show `any demand for dowry' as
defined in Section 2 of the 1961 Act. The allegation to the effect that
the deceased was asked to bring money for domestic expenses and
for purchasing manure in the facts of the case was not found
sufficient to be covered by the `demand for dowry'. Appasaheb1
cannot be read to be laying down an absolute proposition that a
demand for money or some property or valuable security on account
of some business or financial requirement could not be termed as
`demand for dowry'. It was in the facts of the case that it was held
so. If a demand for property or valuable security, directly or
indirectly, has a nexus with marriage, in our opinion, such demand
would constitute `demand for dowry'; the cause or reason for such
demand being immaterial."
51. Thus, in Bachni Devi (supra) the Hon'ble Supreme Court
while discussing the scope and ambit of Section 304-B of the IPC,
discussed about not only purpose behind bringing Section 304-B in
the statute book, but also about requirements / ingredients of the
said provision and ruled that,
'the provision of Section 304B of the IPC makes
punishable not only the actual receiving of dowry, but
also the very demand of dowry made before or at the
time or after the marriage where such demand is
referable to the consideration of marriage.'
It is also held by the Hon'ble Supreme Court that,
'if a demand for property or valuable security, directly or
indirectly, has a nexus with marriage, such demand
would constitute 'demand for dowry' and the cause or
reason for such demand is immaterial.'
52. It is true that, the substantive evidence of all these four
witnesses is completely silent as to the purpose for which Rs.10,000/-
was demanded by the respondents. Though the purpose of demand
of Rs.10,000/- appears in the complaint / FIR (Exh.14) lodged by
..43.. CrAppeal No.271.2003
Syed Ismile Syed Mehboob (PW-1), but in the absence of substantive
evidence of Syed Ismile, it cannot be considered. However without
any hesitation, it can be said that, demand of Rs.10,000/- had a
nexus with the marriage of Shabana with respondent no.1 - Majid.
The respondents have not cross-examined anyone of four material
witnesses viz. Syed Ismile (PW-1), Mahmooda Ismile (PW-5),
Ahmadbee w/o. Shabbir (PW-6) and Ashabee Syed Ismile (PW-8) on
this aspect. It is not their case that, alleged demand of Rs.10,000/-
was not on account of dowry and also has no nexus with the
marriage of Shabana with respondent no.1. Therefore, it becomes
clear that, demand of Rs.10,000/- made by the respondents, for
which Shabana was harassed, was referable to the consideration of
marriage of Shabana with respondent no.1 - Majid.
53. Thus, in the case at hand, in view of above discussion,
we can safely hold that, demand of Rs.10,000/- made by the
respondents after the marriage had nexus with the marriage of
Shabana with respondent no.1 - Majid.
54. It is pertinent to note that, at the time of tragic death,
Shabana was 5 months pregnant. Though this has been mentioned
..44.. CrAppeal No.271.2003
not only in FIR (Exh.14) lodged by Syed Ismile Syed Mehboob
(PW-1), but also depicted in the statements under Section 161 of
CrPC of Mahmooda Ismile (PW-5), Ahmadbee w/o. Shabbir (PW-6)
and Ashabee Syed Ismile (PW-8), but unfortunately nobody from
them deposed the same before the Court. However, medical
evidence is clear enough on this aspect. Column no.21 of the
Post-mortem Report (Exh.28) clearly states as under :
'Uterus - Gravid uterus - 20 weeks foetus +ve (Embryo)'
55. Dr Syed Abdul Bari (PW-10), who conducted the
post-mortem on the dead body of Shabana along with Dr Deshpande,
deposed that, 20 weeks foetus noticed during the post-mortem of
Shabana. The respondents / accused have not disputed that Shabana
was pregnant when died. During the cross-examination of Dr. Syed
Abdul Bari (PW-10), neither anything is asked on this aspect nor
suggestion denying the same was given to him. In such
circumstances, there is no reason to discard the fact that at the time
of unfortunate death, Shabana was carrying 5 months (20 weeks) of
pregnancy.
56. In the case of Rameshwar Dass Vs. State of Punjab and
Anr, AIR 2008 SC 890, the Hon'ble Apex Court while dealing with the
..45.. CrAppeal No.271.2003
case of dowry death in para - 23 of the judgment held as under :
"A pregnant woman ordinarily would not commit suicide
unless relationship with her husband comes to such a pass that she
would be compelled to do so."
In view of aforesaid ratio, it can be very safely held that,
the respondents by their conduct harassed and ill-treated Shabana.
57. Thus, having regard to the totality of evidence of four
material witnesses viz. Syed Ismile (PW-1), Mahmooda Ismile
(PW-5), Ahmadbee w/o. Shabbir (PW-6) and Ashabee Syed Ismile
(PW-8), without any hesitation we hold that, prior to the unnatural
death of Shabana the respondents had harassed her mentally so as to
coerce her to fulfill their demand of Rs.10,000/-.
58. Section 498-A of the IPC reads as under :
"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.
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
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property or valuable security or is on account of failure by
her or any person related to her to meet such demand.]"
59. Section 304-B of the IPC reads as under:
"[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 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.]"
60. Sections 113-A and 113-B of the Evidence Act run as
under:
"[113-A. Presumption as to abetment of suicide by a
married woman.--When the question is whether the
commission of suicide by a woman had been abetted by
her husband or any relative of her husband and it is
shown that she had committed suicide within a period of
seven years from the date of her marriage and that her
husband or such relative of her husband had subjected
her to cruelty, the Court may presume, having regard to
all the other circumstances of the case, that such suicide
had been abetted by her husband or by such relative of
her husband.
Explanation.--For the purposes of this section, "cruelty"
shall have the same meaning as in section 498-A of the
Indian Penal Code (45 of 1860).]"
"[113-B. Presumption as to dowry death.--When the
question is whether a person has committed the dowry
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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 304B,
of the Indian Penal Code, (45 of 1860).]"
61. In the case of S. Anil Kumar @ Anil Kumar Ganna Vs.
State of Karnataka, 2013 (7) SCC 219, the Hon'ble Supreme Court
while dealing with the case of dowry death held as under : -
"The evidence of the prosecution witnesses PWs.1, 10
to 16 and 21 relied on by the prosecution are
contradictory, which cannot be stated to be minor
contradictions. Besides, there is clear improvement in
the statements of PW-1 and 12 about allegations of
demand of dowry of Rs.1,50,000/- and 800 grams of
gold ornaments and harassment and torture made by
accused no.1 on the deceased was not disclosed and
mentioned in the FIR before the Tahsildar, who
recorded initial evidence. In Exh.P2 and complaint
Exh.P3 absolutely there is no evidence to show that
Rs.25,000/- was demanded and Rs.10,000/- was given
to accused no.1 either at Benali or at Mysore. Further
payment of Rs.50,000/- and 500 grams of gold to
accused no.1 as dowry has not been established beyond
reasonable doubt. Once the prosecution failed to prove
basic ingredients of harassment or demand of dowry
and the evidence brought on record was doubtful by the
Trial Court, it was not open to the High Court to convict
accused no.1 on presumption referring to Section 113A
or 113B of the Evidence Act."
62. In the case of Sunil Bajaj Vs. State of MP, 2001 AIR (SC)
3020, the Hon'ble Supreme Court in para no.5 of the Judgment held
as under : -
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"In order to convict an accused for an offence under
Section 304-B IPC, the following essentials must be
satisfied:
1) The death of a woman must have been caused by burns
or bodily injury or otherwise than under normal
circumstances;
2) Such death must have occurred within 7 years of her
marriage;
3) Soon before her death, the woman must have been
subjected to cruelty or harassment by her husband or by
relatives of her husband;
4) Such cruelty or harassment must be for or in
connection with demand of dowry.
6) IT is only when the aforementioned ingredients are
established by acceptable evidence such death shall be
called dowry death and such husband or his relative shall
be deemed to have caused her death. It may be noticed
that punishment for the offence of dowry death under
Section 304-B is imprisonment of not less than 7 years,
which may extend to imprisonment for life. Unlike under
Section 498-A IPC, husband or relative of husband of a
woman subjecting her to cruelty shall be liable for
imprisonment for a term which may extend to three years
and shall also be liable to fine. Normally, in a criminal case
accused can be punished for an offence on establishment
of commission of that offence on the basis of evidence,
may be direct or circumstantial or both. But in case of an
offence under Section 304-B IPC an exception is made by
deeming provision as to nature of death as dowry death
and that the husband or his relative, as the case may be, is
deemed to have caused such death, even in the absence of
evidence to prove these aspects but on proving the
existence of the ingredients of the said offence by
convincing evidence. Hence, there is need for greater care
and caution, that too having regard to the gravity of the
punishment prescribed for the said offence, in scrutinizing
the evidence and in arriving at the conclusion as to
whether all the above mentioned ingredients of the
offence are proved by the prosecution. In the case on
hand, the learned counsel for the appellant could not
dispute that the first two ingredients mentioned above are
satisfied."
63. In the case of Satvir Singh Vs. State of Punjab, 2001 (8)
..49.. CrAppeal No.271.2003
SCC 633 the Hon'ble Supreme Court in para nos.18, 21 and 22 held
as under :
"(18) We are, therefore, unable to concur with the
contention that if the dowry related death is a case of
suicide it would not fall within the purview of Section
304B IPC at all. In Smt. Shanti and anr. vs. State of
Haryana {1991(1) SCC 371} and in Kans Raj vs. State of
Punjab and ors. {2000(5) SCC 207} this Court has held
that suicide is one of the modes of death falling within the
ambit of Section 304B IPC.
(21) Thus, there are three occasions related to dowry.
One is before the marriage, second is at the time of
marriage and the third is at any time after the marriage.
The third occasion may appear to be an unending period.
But the crucial words are in connection with the marriage
of the said parties. This means that giving or agreeing to
give any property or valuable security on any of the above
three stages should have been in connection with the
marriage of the parties. There can be many other instances
for payment of money or giving property as between the
spouses. For example, some customary payments in
connection with birth of a child or other ceremonies are
prevalent in different societies. Such payments are not
enveloped within the ambit of dowry. Hence the dowry
mentioned in Section 304B should be any property or
valuable security given or agreed to be given in connection
with the marriage.
(22) It is not enough that harassment or cruelty was
caused to the woman with a demand for dowry at some
time, if Section 304B is to be invoked. But it should have
happened soon before her death. The said phrase, no
doubt, is an elastic expression and can refer to a period
either immediately before her death or within a few days
or even a few weeks before it. But the proximity to her
death is the pivot indicated by that expression. The
legislative object in providing such a radius of time by
employing the words soon before her death is to emphasise
the idea that her death should, in all probabilities, have
been the aftermath of such cruelty or harassment. In other
words, there should be a perceptible nexus between her
death and the dowry related harassment or cruelty
inflicted on her. If the interval elapsed between the
..50.. CrAppeal No.271.2003
infliction of such harassment or cruelty and her death is
wide the court would be in a position to gauge that in all
probabilities the death would not have been the immediate
cause of her death. It is hence for the court to decide, on
the facts and circumstances of each case, whether the said
interval in that particular case was sufficient to snuff its
cord from the concept soon before her death."
64. Principles relating to Section 304-B of the IPC and 113B
of the Evidence Act summarized by the Hon'ble Supreme Court, in
various cases including aforesaid citations, are as under :
"(a) To attract the provisions of section 304B, IPC,
1860, the main ingredient of the offence to be
established is that soon before the death of the
deceased, she was subjected to cruelty and harassment
in connection with the demand of dowry.
(b) The death of the deceased woman was caused
by any burn or bodily injury or some other circumstance
which was not normal.
(c) Such death occurs within seven years from the
date of her marriage.
(d) That the victim was subjected to cruelty or
harassment by her husband or any relative of her
husband.
(e) Such cruelty or harassment should be for or in
connection with demand of dowry.
(f) It should be established that such cruelty and
harassment was made soon before her death.
(g) The expression (soon before) is a relative term
and it would depend upon circumstances of each case
and no straitjacket formula can be laid down as to what
would constitute a period of soon before the occurrence.
(h) It would be hazardous to indicate any fixed
period and that brings in the importance of a proximity
test both for the proof of an offence of dowry death as
well as for raising a presumption under section 113B of
the Evidence Act, 1872."
65. According to us, in the case at hand all the aforesaid
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ingredients of offence under Section 304-B and Section 498-A of the
IPC have been satisfied. It is clear from the evidence on record that,
unnatural death of Shabana was caused by bodily injury and burns.
Her death was caused only within 8 months of marriage with
respondent no.1 - Majid, at her matrimonial house. Shabana was
subjected to cruelty by respondents for demand of dowry, after about
four months of their marriage, which clearly falls in the expression
"soon before death" mentioned in Section 304-B, in view of the
Judgment of the Hon'ble Supreme Court in the case of Satvir Singh
Vs. State of Punjab (cited supra). At the time of death Shabana was
pregnant and carrying a 5 months foetus. Therefore, the respondents
are liable to be held guilty for the offences punishable under Sections
498-A and 304-B r.w.34 of the IPC.
66. The learned II Additional Sessions Judge, Beed though
rightly acquitted respondents / accused under Sections 302, 201, 203
and 177 r.w. 34 of IPC, but wrongly acquitted them for the offences
under Section 498-A r.w. 34 of IPC. Thus, for the various reasons
stated in para supra, the respondents are liable to be convicted and
sentenced for the offences punishable under Sections 498-A and
304-B r.w. 34 of IPC.
..52.. CrAppeal No.271.2003
67. Since case is established under Sections 498-A and 304-B
r.w. 34 of IPC, the respondents/accused are liable to be convicted
under both the sections, but no separate sentence would be necessary
under Section 498-A IPC in view of the substantive sentence being
awarded for the major offence under Section 304-B IPC.
68. Having held both the accused guilty, both being present
in the Court, that we have called upon the learned Counsel for the
original accused to address us on the quantum of the sentence. The
learned Counsel has strenuously contended that, accused no.2,
mother-in-law of the deceased is more than 70 years of age and has
several ailments. Even when she came to the Court hall, she could
not walk without support. Accused no.1, husband of the deceased, is
now a married person. He has the responsibility of his wife, three
children and an ailing mother. The learned Counsel, therefore,
strenuously canvassed that though punishment under Section 304-B
of the IPC can be upto life imprisonment, he prays for minimum
sentence to be awarded.
69. The learned Prosecutor contends that, the deceased
suffered an unnatural death within 8 months of her marriage and she
was 5 months pregnant. The deceased was burnt completely and her
..53.. CrAppeal No.271.2003
body turned into charcoal. He, therefore, prays for a maximum
punishment of life imprisonment under Section 304-B, IPC.
70. We have considered the submissions of the learned
Counsel for the respective sides. Keeping in view our conclusion that,
the offence can be said to be proved only under Sections 498-A and
304-B r/w. Sec.34 of the IPC, we have taken into account the passage
of almost 18 years post acquittal, the ailments suffered by accused
no.2 and the marital status and responsibilities of accused no.1. In
view thereof, it would be appropriate to award sentence of rigorous
imprisonment for 7 (Seven) years to respondent no.1 /accused no.1
namely Majid s/o. Shahabajakhan Pathan and simple imprisonment
for 7 (Seven) years to respondent no.2 / accused no.2 namely
Halimabee w/o. Shahabajkhan Pathan.
71. Accordingly, Criminal Appeal is partly allowed.
(i) The impugned Judgment and order of acquittal as far as
Section 498-A r.w. Sec. 34 of the IPC is set aside.
(ii) Respondents / accused Nos.1 & 2 are convicted for the
offence under Section 304-B r.w. Sec.34 of the IPC and
respondent no.1 / accused no.1 namely Majid s/o.
Shahabajakhan Pathan is sentenced to suffer rigorous
..54.. CrAppeal No.271.2003
imprisonment for 7 (Seven) years and respondent no.2 /
accused no.2 namely Halimabee w/o. Shahabajkhan Pathan is
sentenced to suffer simple imprisonment for 7 (Seven) years.
(iii) They shall surrender before the learned II Additional
Sessions Judge, Beed within 3 (three) weeks from today for
undergoing sentence.
72. This Court had appointed learned Counsel Mr P.P. More
through the High Court Legal Services Authority, Sub-committee,
Aurangabad to represent the respondents in this case. We are,
therefore, quantifying his fees at Rs.20,000/- (Rs. Twenty Thousand
Only) to be paid by the High Court Legal Services Authority,
Sub-committee, Aurangabad.
( B. U. DEBADWAR ) ( RAVINDRA V. GHUGE )
JUDGE JUDGE
Gajanan Punde, PA.
