Bombay High Court
Sharad Ashok Thange vs The State Of Maharashtra on 7 July, 2021
Bench: V.K. Jadhav, Shrikant Dattatray Kulkarni
1 CRI APPEAL 134.2014 &
135.2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.135 OF 2014
1. Shri Sharad Ashok Thange,
age 25 years, occ. Agril,
R/o. Barhanpur, Tq. Shevgaon,
District Ahmednagar. ..Appellant..
(orig. accused no.1.)
Versus
The State of Maharashtra
Through Police Inspector,
Shevgaon Police Station,
Taluka Shevgaon,
District Ahmednagar. ..Respondent..
(orig complainant)
...
WITH
CRIMINAL APPEAL NO.134 OF 2014
1. Ashok Bhaurao Thange,
age 47 years, Occ. Agril,
R/o Barhanpur, Tq. Shevgaon,
District Ahmednagar.
2. Bhimabai w/o Ashok Thange,
age 40 years, occ. agril,
R/o Barhanpur, Tq. Shevgaon,
District Ahmednagar. ..Appellants...
(orig accused nos.2 & 3)
VERSUS
The State of Maharashtra,
Through Police Inspector,
Shevgaon Police Station,
Taluka Shevgaon,
District Ahmednagar. ...Respondent...
(orig complainant)
...
::: Uploaded on - 08/07/2021 ::: Downloaded on - 09/07/2021 03:25:26 :::
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...
Mr. V D Sapkal Senior Counsel I/b Mr. S R Sapkal
advocate for the appellants in both appeals.
Mr. S D Ghayal APP for the respondent State.
...
CORAM : V.K. JADHAV & SHRIKANT D. KULKARNI, JJ.
...
Reserved on : 23.6.2021
Pronounced on : 07.07.2021
...
JUDGMENT :- ( Per V. K. Jadhav, J.)
1. These two appeals have been preferred against the
judgment and order of conviction dated 26.2.2014
passed by the Additional Sessions Judge, Ahmednagar
in Sessions Case No.384 of 2012.
2. Brief facts of the prosecution case are as follows :-
a] On 15.9.2012 village Police Patil of Aavhane, Tq.
Shevgaon, District Ahmednagar has reported to
Shevgaon Police Station that one Kalindi Sharad Thange
died due to burns in her matrimonial home. On the
basis of such information, accidental death bearing A.D.
No.70 of 2012 was registered at Shevgaon Police Station
and one ASI Shirvam Dhakne was entrusted with the
inquiry.
3 CRI APPEAL 134.2014 &
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b] On 16.9.2012 at about 3.00 a.m. PW 1-Raosaheb
Kondiba Dukale-father of the deceased Kalindi has fled
F.I.R at Shevgaon Police Station. It has been stated in
the FIR that deceased Kalindi was given in marriage to
appellant/accused no.1 Sharad Thange and marriage
was performed on 29.1.2012. It has been alleged that
Kalindi was treated well for a period of one month and,
thereafter subjected to cruelty on account of the non-
fulfllment of demand of Rs.50,000/- (Rs. Fifty
Thousand) for purchasing a motorcycle. It has also
alleged that on 13.9.2012 when the complainant has
invited all the accused in his house for Dhonde Feast,
appellant/accused no.1 Sharad has made a demand of
one Tola Gold Ring, however, due to poor economical
condition, complainant PW 1 Raosaheb could not fulfll
the said demand. However, he has promised that when
he will fetch good yield from his land, said ring will be
given. All the accused left the house of the complainant
alongwith Kalindi, however, while leaving the house
deceased Kalindi was crying. On the very next day, i.e.
on 15.9.2012 deceased Kalindi informed to her brother
4 CRI APPEAL 134.2014 &
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PW 3 Dada Dukle on phone that as golden ring was not
given to her husband appellant/accused, he has
severally assaulted her and subjected her to cruelty. On
the same day, at about 3.00 p.m. Sarpanch of village
Avane informed to PW 3 Dada Dukle on phone that his
sister deceased Kalindi died due to burns in the house
of the accused. Accordingly, PW 1 Raosaheb, his wife
Prayagbai and other relatives rushed to the house of the
accused at Barhanpur, Tq. Shevgaon, District
Ahmednagar. They have found that deceased Kalindi
was totally in burnt condition and her dead body was
lying in the house of the accused. They have carried
said dead body to the Civil Hospital, Shevgaon. PW 1
Raosaheb has expressed his suspicion that since
demands of Rs.50,000/- for purchasing the motorcycle
and one Tola gold ring were not satisfed, his daughter
was subjected to cruelty on that count, and accordingly,
deceased Kalindi had committed suicide by setting
herself on fre.
c] On the basis of his complaint crime bearing
no.203 of 2012 was registered under section 304-B,
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498-A, 323, 504, r/w 34 of IPC with the Shevgaon Police
Station, Tq & District Ahmednagar. PW PSI Bhande has
investigated the crime. He has taken papers of
accidental death. The I.O. has recorded statements of
the witnesses. Appellants/accused came to be arrested
in connection with the crime, seized articles were sent
to the C.A. Thus, on completion of the investigation, PW
5 PSI Bhande submitted the charge-sheet against
appellants/accused persons.
3. The learned Additional Sessions Judge,
Ahmednagar has framed the charge against appellants/
accused under section 498-A, 304-B, 306, 323, 504, 34
of IPC. All the accused have pleaded not guilty to the
charges and claimed to be tried. The defence of all the
appellants/accused is of total denial. According to
them, they have not demanded anything and deceased
Kalindi was not subjected to cruelty. According to them,
fnancial condition of deceased Kalindi was sound and,
as such, deceased Kalindi was not in a habit of doing
work on daily wages basis. Appellant/accused no.1
Sharad is having his own motorcycle and, as such, there
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was no reason for him to make a demand for purchasing
the motorcycle. Appellant/accused no.1 Sharad has
never demanded gold ring. It is further explained that
deceased Kalindi died due to accidental burns and PW-1
Raosaheb and his family members have falsely
implicated them due to anger and vengeance.
4. Prosecution has examined seven witnesses to
substantiate the charges levelled against accused
persons. After the prosecution evidence was over,
incriminating evidence appearing against
appellants/accused was put to them in their
examination under section 313 of Cr.P.C.
5. The learned Additional Sessions Judge,
Ahmednagar, by judgment and order dated 26.2.2014 in
Sessions Case No.384 of 2012 convicted the
appellant/accused no.1-Sharad Thange for the offence
punishable u/s 304-B of IPC and sentenced him to
suffer imprisonment for life and to pay a fne of
Rs.5,000/- (Rs. Five Thousand), in default of payment of
fne, to suffer R.I. for six months. The learned
7 CRI APPEAL 134.2014 &
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Additional Sessions Judge, Ahmednagar has convicted
appellants/accused no.2-Ashok Thange and
appellant/accused no.3-Bhimabai Thange for the
offence punishable under section 304-B of IPC and
sentenced them to suffer R.I. for seven years and to pay
a fne of Rs.5,000/- each, in default of payment of fne,
to suffer R.I. for six months. The learned Additional
Sessions Judge, Ahmednagar has convicted all the
appellants/accused for the offence punishable u/s 498-
A of IPC and sentenced them to suffer R.I. for three
years and to pay fne of Rs.2,000/- each, in default of
payment of fne, to suffer R.I. for six months. Both the
Sentences are directed to be run concurrently. The
Additional Sessions Judge, Ahmednagar has also
directed that all the accused are entitled for set off as
detailed in the operative part of the order clause no.5
and 6, respectively.
6. Being aggrieved by the same, the
appellant/accused Sharad Thange (original accused
no.1) has preferred appeal no.135 of 2014 and
appellants/accused no.2-Ashok Thange and 3-Bhimabai
8 CRI APPEAL 134.2014 &
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Thange (original accused nos. 2 and 3) have preferred
criminal appeal no.134 of 2014.
7. The learned Senior counsel Mr. Sapkal submits
that the impugned judgment and order of conviction is
erroneous, illegal and contrary to the provisions of law.
The learned Judge of the trial court has not appreciated
the prosecution evidence in its proper perspective. The
learned senior Counsel submits that there was no
evidence that soon before the death, deceased Kalindi
was subjected to cruelty or harassment for or in
connection with any demand or dowry. The explanation
appended to sub-section (1) of Section 304-B of IPC says
that "Dowry" shall have the same meaning as in section
2 of the Dowry Prohibition Act, 1961. In terms of
section 2 of the Dowry Prohibition Act, 1961 "dowry"
means 'any property or valuable security given or agreed
to be given either directly or indirectly by one party to a
marriage to other party to the marriage; at or before or
any time after the marriage in connection with the
marriage of the said parties. The demand of a property
or valuable security must have some connection with
9 CRI APPEAL 134.2014 &
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the marriage of the parties. This being a penal
provision, it has to be strictly construed.
8. Learned senior counsel Mr. Sapkal submits that
PW 1 Raoshaeb Dukale (father of deceased Kalindi), PW
2 Vishnu Kisan Tekule (friend of PW 1 Raosaheb), PW 3
Dada Raosaheb Dukale (brother of deceased Kalindi) are
the material witnesses. These three prosecution
witnesses have not given any details of the demands.
They have not given the details as to when the accused
persons have made a demand of Rs.50,000/- (Rs. Fifty
Thousand) for purchasing the motorcycle. Learned
senior counsel Mr. Sapkal submits that, at the time of
Dhonde Feast, which is usually come in the month of
September, as per the evidence of these three witnesses,
on 13.9.2012 accused have demanded gold ring of one
Tola, however, there is no reference, till the said demand
of gold ring was made, about the earlier demand of
Rs.50,000/- for purchasing the motorcycle. These
prosecution witnesses have not stated anything as to
what happened to the said demand of Rs.50,000/- for
purchasing the motorcycle and as to whether said
10 CRI APPEAL 134.2014 &
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demand was continued. Learned senior counsel Mr.
Sapkal submits that as per the evidence of these
witnesses, deceased Kalindi had made a phone call to
PW-3 Dada on 15.9.2012 and informed to him that
accused had beaten and assaulted her for failing to
present him a gold ring. Learned senior counsel
submits that, in a Dhonde Feast, which is well
recognized festival in the region, gold ring and new
clothes are offered to the son-in-law. Even assuming
that accused persons have demanded gold ring, which is
a part of the rituals, said demand cannot be equated
with "dowry demand as defned under section 2 of the
Dowry Prohibition Act, 1961". There are no allegations
of ill-treatment on account of non-fulfllment of the
demand of Rs.50,000/- for purchasing the motorcycle.
Learned senior counsel Mr. Sapkal submits that
evidence is lacking to the extent that deceased Kalindi
was subjected to cruelty as defned under section 498-A
of Indian Penal Code on account of demand of
Rs.50,000/- for purchasing the motorcycle. Learned
senior counsel Mr. Sapkal further submits that even
11 CRI APPEAL 134.2014 &
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assuming for the sake of discussion that there was a
demand of Rs.50,000/- for purchasing a motorcycle,
said demand cannot be also equated with the dowry
demand as defned under section 2 of the Dowry
Prohibition Act, 1961. It has no connection directly or
indirectly with the dowry. It is not the prosecution case
and none of the prosecution witness has deposed that
motorcycle was a part of dowry, and since it was not
given at the time of marriage, accused, after marriage,
have demanded Rs.50,000/- for purchasing the
motorcycle. Learned senior counsel Mr. Sapkal submits
that there is no evidence that deceased Kalindi had
committed suicide due to the ill-treatment extended to
her on account of the non-fulfllment of the said
demands. Learned senior counsel Mr. Sapkal submits
that, in view of the same, the presumption under
section 113-B of the Evidence Act is not attracted.
Consequently, dowry death cannot be presumed in the
facts and circumstances of the present case.
12 CRI APPEAL 134.2014 &
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9. Learned senior counsel Mr. Sapkal in order to
substantiate his contentions placed reliance on the
following judgments :-
1. Ramu @ Rameshwar s/o Ramkishan Aathave Vs.
State of Maharashtra reported in 2017 SCC online
Bom.6558.
2. Vijay Purushottam Surushe and anr. Vs. State of
Maharashtra reported in 2011 (2) Bom.C.R.120.
3. Appasaheb and anr. Vs. State of Maharashtra
reported in AIR 2007 Supreme Court 763.
4. Vipin Jaiswal Vs. State of A.P. reported in 2013
Cri.L.J. 2095.
5. Modinsab Kasimsab Kanchagar Vs. State of
Karnataka and another reported in AIR 2013
Supreme Court 1504.
6. Girish Singh Vs. State of Uttarakhand reported in
2019 DGLS (SC) 939.
7. Kanchanben Purshottambhai Bhanderi Vs. State of
Gujarat reported in AIR 2015 SC (supp) 315.
8. Durga Prasad and anr. Vs. State of M.P. reported in
2010 AIR SCW 3673.
9. Biswajit Halder alias Babu Halder and ors. Vs.
State of W.B. reported in 2007 Cri.L.J. 2300.
10. Learned APP Mr. S D Ghayal submits that the
prosecution has proved that the death of deceased
Kalindi occurred at her matrimonial home otherwise
13 CRI APPEAL 134.2014 &
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than under the normal circumstances. Prosecution has
examined PW 4 Dr. Dipak Pardeshi, who has conducted
postmortem examination on the dead body of the
deceased Kalindi. He has noticed 100% burn injuries
on all over the dead body of the deceased Kalindi.
Moreover, while examining the stomach and its
contents, doctor Pardeshi has recorded about 500 CC of
Semi digested liquid with smell of poisonous substance
present. According to him, smell of poisonous
substance was not due to the event of burning of the
victim and injuries all over the body, but it was
independent and may be due to poisonous food. He has
reserved the viscera for the purpose of analysis through
C.A. The C.A report exh.27, 28 and 29 indicates
detection of organophosperous insecticide Dimethoate
(Rogar) detected in article no.1. Plastic bottle containing
pieces of stomach of small intestine and large intestine.
PW 4 Dr. Pardeshi has given fnal cause of death as
"shock due to burn associated with poisoning." Learned
APP submits that prosecution has proved beyond
14 CRI APPEAL 134.2014 &
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reasonable doubt that death of Kalindi occurred
otherwise than under the normal circumstances.
11. Learned APP submits that the evidence of PW1
Raosaheb, PW 2 Vishnu Tekule and PW 3 Dada is
reliable, trust worthy and inspiring the confdence.
Learned APP submits that, in case of dowry death, the
circumstantial evidence also plays an important role
and inference can be drawn on the basis of such
evidence. Learned APP submits that PW 3 Dada, who
happened to be the brother of deceased Kalindi, has
deposed that, deceased Kalindi was treated well for a
period of one month after the marriage. Thus, inference
can be drawn that demand of Rs.50,000/- for
purchasing the motorcycle was made after said period of
one month. Thus, considering the short span of
cohabitation i.e. total period of eight months, said
demand would constitute to be in connection with the
marriage, and it would be a case of demand of dowry
within the meaning of section 304-B of IPC. Learned
APP submits that on the date of the death itself,
deceased Kalindi had made a phone call to her brother
15 CRI APPEAL 134.2014 &
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PW 3 Dada and informed to him about ill-treatment
being extended to her on account of non-fulfllment of
the demand of gold ring. Learned APP submits that the
ingredients of section 304-B of the Indian Penal Code
stand proved by the prosecution. Prosecution has
proved death of deceased Kalindi occurred within eight
months of her marriage otherwise than under the
normal circumstances at her matrimonial home and,
also proved the dowry demand, so also the cruelty as
defned under section 498-A of the IPC. Learned APP
submits that the presumption under section 113-B of
the Evidence Act stands attracted. The Court thus shall
presume that accused had caused dowry death. The
trial court has correctly appreciated the evidence and by
applying the presumption under section 113-B of the
Evidence Act, rightly convicted the appellants/accused
persons.
12. Learned APP submits that the appellants/accused
during their examination under section 313 of Cr.P.C.
have given false information Exhibit 62. According to
the appellants/accused persons, deceased Kalindi had
16 CRI APPEAL 134.2014 &
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sustained accidental burns. However, considering the
cause of death as 100% burns coupled with the
poisonous substance rule out the possibility of
accidental burns. Learned A.P.P. submits that death of
deceased Kalindi is a custodial death. In terms of
provisions of section 106 of the Indian Evidence Act,
the burden of proving the fact, which is especially within
the knowledge of the accused shifts upon them, accused
have miserably failed to discharge the said burden. This
is required to be treated as an additional circumstance
against appellants/accused persons. Learned APP
submits that there is no substance in these criminal
appeals and the criminal appeals are liable to be
dismissed.
13. Learned APP, in order to substantiate his
contentions, placed reliance on a case Pawar Kumar and
others Vs. State of Haryana reported in AIR 1998
Supreme Court 958.
14. Prosecution has examined PW 4 Dr. Pardeshi
Dipak Harischandra, attached to Rural Hospital,
17 CRI APPEAL 134.2014 &
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Shevgaon, District Ahmednagar. On 15.9.2012 at about
09.00 p.m. Dr. Pardeshi has conducted postmortem
examination on the dead body of deceased Kalindi. PW
Dr. Pardeshi has noticed 100% burn injuries all over the
body of deceased Kalindi. He has further noticed
redness over right leg lower half. According to PW 4 Dr.
Pardeshi it is antemortem and might be occurred at the
time of event of burning. He has further explained that
said injury indicates that at the time of burning
deceased was alive. In addition to the same, he has
found 500 CC of semi digested liquid in the stomach
with smell of poisonous substance. According to PW 4
Dr. Pardeshi, smell of poisonous substance was not due
to event of burning of the victim, but it was independent
and might be due to poisonous food. CA report Exh.27,
28 and 29 were also shown to him. CA report indicates
detection of organophosperous insecticide Dimethoate
(Rogar) in article no.1. PW 4 Dr. Pardeshi has given fnal
opinion of cause of death as 'Shock due to burn
associated with poisoning'. We fnd it diffcult to accept
that deceased Kalindi had consumed the poison and
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thereafter set herself on fre. PW 4 Dr. Pardeshi has
stated in his cross-examination that consumption of
poison may be occurred accidentally or administration
by any other. However, according to him, so far as burn
injuries on the person of the deceased Kalindi are
concerned, those are antemortem in nature. PW 4 Dr.
Pardeshi has not given clear opinion as to whether
death of Kalindi is homicidal or suicidal. However, the
prosecution has proved beyond doubt that deceased
Kalindi died in her matrimonial home due to burns and
otherwise than under the normal circumstances. The
learned senior counsel Mr. Sapkal has also not disputed
the same.
15. It is the specifc case of the prosecution that
deceased Kalindi ended her life because of the
harassment caused to her by the accused for or in
connection with the demand of dowry. It is, therefore,
essential to briefy examine the evidence of the
prosecution witnesses. PW 1 Raosaheb, PW 2 Vishnu
and PW 3 Dada who are the material witnesses on this
point. PW 1 Raosaheb (father of the deceased) has
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deposed that accused told Kalindi to bring Rs.50,000/-
for motorcycle. PW 1 Raosaheb has further deposed
that on 13.9.2012 he had called accused and Kalindi for
Dhonde Feast. Kalindi's husband Sharad put demand of
gold ring of one Tola. He refused to meet the demand
due to drought. Accused returned with Kalindi to their
home at Barhanpur. On 15.9.2012 at about 10.30 am
Kalindi informed on phone that accused started beating,
assaulting and harassing her for fulflling to meet the
demand. On 15.9.2012 at about 03.00 p.m. Sarpanch
Dada Avhane had informed to Raosaheb on phone that
Kalindi died due to burning.
16. PW 2 Vishnu Tekule (family friend) has deposed
that after marriage for one month there was a peaceful
married life. Accused then started demand of
Rs.50,000/- for motorcycle and started pestering in the
fulfllment of the said demand. Deceased Kalindi, when
came to her maternal home, narrated about the
harassment by the accused. Accordingly, he himself,
PW 2 Vishnu, one Machindra More and PW 1 Raosaheb
went to the house of the accused. They had convinced
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the accused that they were unable to meet the demand
due to famine. On 13.9.2012 accused were called for
Dhonde feast. At the time of leaving, accused no.1
asked the complainant and deceased Kalindi to present
gold ring. They have convinced Kalindi and accused.
Kalindi was crying as accused abused her in their
presence.
17. PW 3 Dada (brother of the deceased) has deposed
that marriage of Kalindi was performed gracefully with
the present of dowry of Rs.1 Lakh and other gadgets
and utensils. Deceased Kalindi started residing with
the accused. For one month after marriage, married life
was peaceful and her harassment started thereafter.
PW 3 Dada deposed that on her visit to their home
Kalindi was asking to pay Rs.50,000/-for her husband
Sharad. PW 3 Dada (brother of deceased) further
deposed that thereafter he alongwith his father, PW 2
Vishnu Tekule, Bhimrao More went to the house of the
accused to give him the understanding. He has deposed
about the incident of 13.9.2012 when they had invited
the accused for Dhonde feast. He has deposed that PW
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1 Raosaheb presented clothes to accused and accused
no.1 Sharad asked him to present him a gold ring. They
have refused the demand due to their inability.
Therefore, accused no.1 abused Kalindi and they sent
Kalindi with the accused while she was weeping. On
15.9.2012 at about 10.30 a.m. deceased Kalindi talked
to him on phone and informed that accused beaten and
assaulted her for failing to present gold ring.
18. Though, prosecution witnesses have not given the
exact date, time and place as to when the accused
demanded an amount of Rs.50,000/- for purchasing the
motorcycle, however, deceased Kalindi was treated well
for a period of one month after marriage, and that there
was a demand of Rs.50,000/- for purchasing motorcycle
after said period of one month.
19. There are four essential ingredients of section 304-
B of IPC.
i. Where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than
under the normal circumstances.
22 CRI APPEAL 134.2014 &
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ii. Such death should have occurred within seven
years of her marriage.
iii.She must have been subjected to cruelty or
harassment by her husband or any relative of her
husband soon before death.
iv. Such cruelty or harassment should be for, or in
connection with the demand for dowry.
20. In terms of the explanation to section 304-B, term
"Dowry" shall have the same meaning as in section 2 of
the Dowry Prohibition Act, 1961. Section 2 of the Dowry
Prohibition Act, 1961 reads as under :-
2. "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 ;
(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 applies.
23 CRI APPEAL 134.2014 &
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21. It is thus clear that "Dowry" means any property
or valuable security given or agreed to be given as
directly or indirectly at or before or any time after the
marriage and in connection with the marriage of the
said parties. It is thus necessary that giving or taking
of the property or valuable security must have some
connection with the marriage of the parties. It is well
settled that being a penal provision, the same has to be
strictly construed.
22. In a case Ashok Kumar Vs. State of Haryana
reported in (2010) 12 SCC 350 in paragraph no.14 and
19 the Supreme Court has made following
observations :-
14. The expressions "or any time after marriage" and "in
connection with the marriage of the said parties" were
introduced by the amending Act 63 of 1984 and Act 43 of
1986 with effect from 2-10-1985 and 19-11-1986
respectively. These amendments appear to have been made
with the intention to cover all demands at the time, before
and even after the marriage so far they were in connection
with the marriage of the said parties. This clearly shows the
intent of the legislature that these expressions are of wide
meaning and scope. The expression "in connection with the
marriage" cannot be given a restricted or a narrower
meaning. The expression "in connection with the marriage"
even in common parlance and on its plain language has to
be understood generally. The object being that everything,
which is offending at any time i.e. at, before or after the
marriage, would be covered under this definition, but the
24 CRI APPEAL 134.2014 &
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demand of dowry has to be "in connection with the
marriage" and not so customary that it would not attract, on
the face of it, the provisions of this section.
19. We have already referred to the provisions of Section 304-B
of the Code and the most significant expression used in the
section is "soon before her death". In our view, the
expression "soon before her death" cannot be given a
restricted or a narrower meaning. They must be understood
in their plain language and with reference to their meaning
in common parlance. These are the provisions relating to
human behaviour and, therefore, cannot be given such a
narrower meaning, which would defeat the very purpose of
the provisions of the Act. Of course, these are penal
provisions and must receive strict construction. But, even
the rule of strict construction requires that the provisions
have to be read in conjunction with other relevant
provisions and scheme of the Act. Further, the interpretation
given should be one which would avoid absurd results on
the one hand and would further the object and cause of the
law so enacted on the other.
23. It is clear from the observations made by the
Supreme Court that expression "in connection with the
marriage" cannot be given a restricted or narrower
meaning. "In connection with the marriage" even in a
common parlance and on its plain language has to be
understood generally. The object being that everything,
which is offending at any time i.e. before or after the
marriage, would be covered under this defnition, but
the demand of dowry has to be "in connection with the
marriage" and not so customary, that it would not
attract, on the fact of it, the provisions of this Section.
25 CRI APPEAL 134.2014 &
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24. The Hon'ble Supreme Court in the above cited case
has referred one case of Ran Singh Vs. State of Haryana
reported in (2008) 4 SCC 70 and Satvir Singh Vs. State
of Punjab reported in (2001) 8 SCC 633, wherein it is
held that customary payments in connection with birth
of a child or other ceremonies are not covered within the
ambit of "dowry".
25. In a case of Appasaheb and another Vs. State of
Maharashtra reported in (2007) 9 Supreme Court Cases
page 721, it is held that demand of money on account of
some fnancial stringency or to meet some urgent
domestic expenses for purchasing manure cannot be
termed as demand for dowry as said word is normally
understood.
26. In the instant case, merely one month after the
marriage, deceased Kalindi had informed to her parents
to give Rs.50,000/- to her husband for purchasing a
motorcycle. The expression "in connection with the
marriage" cannot be given a restricted or narrower
meaning. We are aware of the mind set up of the people
26 CRI APPEAL 134.2014 &
135.2021.odt
of our society, particularly, the husband's side. It is
always expected from the wife and her family members,
even after the marriage, to present the husband a new
motorcycle, luxurious articles like T.V., refrigerator,
Washing machine, etc. In the instant case, demand of
Rs.50,000/- for purchasing the motorcycle is not for the
purpose of business or any other cause. The defence
has suggested to the prosecution witnesses and even
explanation has also been tendered in the statement
under section 313 of Cr.P.C. that the appellant/accused
no.1 Sharad was already having a motorcycle even prior
to the marriage. This further strengthen the
observations made by us that the said demand of
Rs.50,000/- for purchasing a motorcycle was in
connection with the marriage, even though motorcycle
was not required by the appellant/accused no.1-Sharad.
If we understood the dowry a well known social custom
and practice in India, in the facts of the instant case,
since demand of Rs.50,000/- for purchasing a
motorcycle was made one month after the marriage,
only irresistible inference could be drawn that said
27 CRI APPEAL 134.2014 &
135.2021.odt
demand is in connection with the marriage and thus
constitute a 'dowry demand.' So far as the demand of
gold ring at the time of Dhonde Feast is concerned, we
are agree with the submissions made by the learned
senior Counsel Mr. Sapkal on behalf of the
appellants/accused that in Dhonde Feast, generally,
gold ring is presented to the husband and, therefore,
the same falls under the customary payment and thus
does not cover within the ambit of word "dowry".
27. Deceased Kalindi died within eight months and
some odd days of the marriage. On the date of the
incident, i.e. on 15.9.2012 deceased Kalindi had
informed to her brother PW-3 Dada about the assault
and beating by accused for non-fulfllment of the
demand. It is a proximate link between the cruelty in
connection with the demand of dowry and death of
deceased Kalindi resulting from it. The demand of said
amount of Rs.50,000/- for purchasing a motorcycle and
allegations about cruelty, particularly, on the date of
incident itself, positively indicates that soon before the
death, deceased Kalindi was subjected to cruelty by the
28 CRI APPEAL 134.2014 &
135.2021.odt
appellant/accused no.1 Sharad in connection with the
said demand of dowry. The allegations have been made
about the demand of Rs.50,000/- for purchasing a
motorcycle only against the appellant/accused no.1-
Sharad, and since deceased Kalindi was subjected to
cruelty on account of non-fulfllment of the said demand
triggered by the subsequent event that at the Dhonde
festival appellant/accused no.1 Sharad was not offered a
gold ring, allegedly by appellant/accused no.1 Sharad,
we extend the beneft of doubt to the appellants/original
accused nos.2-Ashok Bhaurao Thange and 3-Bhimabai
Ashok Thange in criminal appeal no.134 of 2014.
28. It is well settled that once the three ingredients of
section 304-B of IPC i.e. i] death of a woman is caused
by any burns or bodily injury or occurs otherwise than
under the normal circumstances, ii] within seven years
of her marriage and iii]- it is shown that soon before her
death she was subjected to cruelty or harassment, the
presumption under section 113-B would follow. It is
held to be rebutable presumption and accused by
satisfactory evidence can rebute the presumption. In
29 CRI APPEAL 134.2014 &
135.2021.odt
the instant case, the accused could not rebute the
presumption and, even without aid of presumption, the
prosecution has proved that the appellant/accused
Sharad was responsible for the death of deceased
Kalindi. Even, the explanation tendered by the
appellant/accused No.1 Sharad about death of deceased
Kalindi in her matrimonial home by accidental burns
appears to be false. There is no attempt at all to explain
as to how the poisonous substance found in the
stomach contents of deceased Kalindi and as to how the
deceased Kalindi had sustained 100% burns if at all she
had sustained burns, accidentally. Even, the tenor of
the evidence of PW 4 Dr. Pardeshi indicates that there
was no possibility of accidental burns.
29. In a case Vijay Purushottam Surushe and another
Vs. State of Maharashtra reported in 2011 (2) Bom.C.R.
(Cri) 120 relied upon by the learned senior counsel Mr.
Sapkal for the appellants, in the facts of the said case,
the exact acts of ill-treatment, its nature and its effect
namely such ill-treatment would drive victim to commit
suicide, are all left to imagination, as no facts have come
30 CRI APPEAL 134.2014 &
135.2021.odt
forward. However, in the instant case, on the day of the
incident itself, deceased Kalindi had informed to her
brother PW 3 Dada that she was subjected to assault
and beating by the accused persons on account of non-
fulfllment of the demand. Deceased Kalindi had made
a phone call to her brother PW 3 Dada at about 10.30
am and on the same day she died due to burns in her
matrimonial home and also otherwise than under the
normal circumstances at about 3.00 p.m. Thus, the
facts and circumstances of the case cited are altogether
different and cannot be made applicable to the facts of
the present case.
30. In a case of Appasaheb and another Vs. State of
Maharashtra reported in AIR 2007 Supreme Court 763,
relied upon by the learned senior counsel Mr. Sapkal for
the appellants, it is held by the Supreme Court that
accused demanding money for domestic expenses and
for purchase of manure, thus cannot be convicted
under section 304-B of IPC. In paragraph no.9 of the
judgment the Supreme Court has made following
observations :-
31 CRI APPEAL 134.2014 &
135.2021.odt
"9. Two essential ingredients of Section 304B IPC, apart from others, are
(i) death of woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances, and (ii) woman is subjected to
cruelty or harassment by her husband or any relative of her husband for, or
in connection with, any demand for "dowry". The explanation appended to
Sub-section (1) of Section 304B IPC says that "dowry" shall have the
same meaning as in Section 2 of Dowry Prohibition Act, 1961.
Section 2 of Dowry Prohibition Act reads as under :
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 parent 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.
In view of the aforesaid definition of the word "dowry" any property or
valuable security should be given or agreed to be given either directly or
indirectly at or before or any time after the marriage and in connection
with the marriage of the said parties. Therefore, the giving or taking of
property or valuable security must have some connection with the
marriage of the parties and a correlation between the giving or taking of
property or valuable security with the marriage of the parties is essential.
Being a penal provision it has to be strictly construed. Dowry is a fairly
well known social custom or practice in India. It is well settled principle of
interpretation of Statute that if the Act is passed with reference to a
particular trade, business or transaction and words are used which
everybody conversant with that trade, business or transaction knows or
understands to have a particular meaning in it, then the words are to be
construed as having that particular meaning. (See Union of India v.
Garware Nylons Ltd. AIR 1996 SC.3509 AND Chemicals and Fibres of
India v. Union of India AIR 1997 SC 558). 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. The evidence adduced by
the prosecution does not, therefore, show that any demand for "dowry" as
defined in Section 2 of the Dowry Prohibition Act was made by the
appellants as what was allegedly asked for was some money for meeting
domestic expenses and for purchasing manure. Since an essential
ingredient of Section 304B IPC viz. demand for dowry is not established,
the conviction of the appellants cannot be sustained."
32 CRI APPEAL 134.2014 &
135.2021.odt
31. The Supreme Court in the above cited case has
observed that dowry is a clearly well known social
custom or practice in India. It is well settled that if the
Act is passed with reference to a particular trade,
business or transaction and words are used which
everybody conversant with that trade, business or
transaction knows or understands to have a particular
meaning in it, then the words are to be constructed as
having that particular meaning. In the backdrop of
these observations, the demand of money for domestic
expenses and purchase of manure held to be not a
demand of dowry.
32. In a case Vipin Jaiswal Vs. State of A.P. reported in
2013 Cri.L.J.2095 relied upon by the learned Senior
counsel for the appellants, in the facts of this case there
was a demand for purchase of computer for starting
business and the Supreme Court has held that same
cannot be said to be a demand in connection with the
marriage. It is held that said demand is not dowry,
however, the facts of the said case are altogether
33 CRI APPEAL 134.2014 &
135.2021.odt
different and cannot be made applicable to the facts of
the present case.
33. In a case Modinsab Kasimsab Kanchagar Vs. State
of Karnataka and another reported in AIR 2013 SC 1504
relied upon by the learned Sr. counsel for the
appellants, there was a demand of money for repayment
of the loan and the same held to be not a dowry
demand.
34. In a cases of Girish Singh Vs. State of
Uttarakhand reported in 2019 DGLS (SC) 939,
Kanchanben Purshottambhai and others reported in
AIR 2015 SC (supp) 315 and Durga Prasad and another
Vs. State of M.P. reported in 2010 AIR SCW 3673, relied
upon by the learned Senior counsel Mr. Sapkal for
appellants, the facts of these case are altogether
different and cannot be made applicable to the facts of
the present case.
35. In view of the discussion above, we are of the
considered opinion that prosecution has proved the case
under section 304-B, 498-A of the Indian Penal Code
34 CRI APPEAL 134.2014 &
135.2021.odt
against the appellant/accused no.1 Sharad Ashok
Thange in Criminal Appeal No.135 of 2014 and the
appellants/accused no.2-Ashok Bhaurao Thange and 3-
Bhimabai Ashok Thange (original accused nos. 2 and 3)
in criminal appeal no.134 of 2014 are entitled for the
beneft of doubt.
36. So far as the quantum of punishment is
concerned, there are few aspects which need to be
considered. There is no evidence that at the time of
occurrence the appellant/accused no.1 Sharad Thange
was present at home and he failed to protect/save the
deceased from burning which caused her death.
Further, deceased Kalindi died within eight months and
some odd days after the marriage, which is very short
period. The appellant/accused no.1 Sharad was 25
years of age at the time of the alleged incident. Thus,
keeping in view the facts and circumstances of the
present case, we are of the considered view that the
ends of justice would be met by awarding him a
sentence of 10 years of R.I. for the offence punishable
35 CRI APPEAL 134.2014 &
135.2021.odt
under section 304-B of the Indian Penal Code. Hence,
we proceed to pass the following order :-
ORDER
i. Criminal Appeal No.135 of 2014 (Sharad Ashok
Thange Vs. State of Maharashtra) is hereby
partly allowed.
ii. The impugned judgment and order passed by
the learned Additional Sessions Judge,
Ahmednagar dated 26.2.2014 in Sessions Case
No.384 of 2012 to the extent of appellant/
accused Sharad Ashok Thange (original
accused no.1) is hereby modifed to the extent
of sentence as under :-
iii. The appellant/accused Sharad Ashok Thange
(original accused no.1) is hereby convicted for
the offence punishable under section 304-B of
the Indian Penal Code and sentenced to suffer
R.I. for 10 (Ten) years and to pay a fne of
Rs.5,000/- (Rs. Five Thousand), in default of
payment of fne to suffer R.I. for 6 months,
instead of imprisonment for life.
iv. Conviction of appellant/accused Sharad Ashok
Thange (original accused no.1) under section
498-A of the Indian Penal Code and sentencing
36 CRI APPEAL 134.2014 &
135.2021.odt
him to suffer R.I. for a period of three years and
to pay fne of Rs.2,000/-, in default of payment
of fne to suffer R.I. for six months stands
confrmed.
v. The appellant/accused no.1 Sharad Ashok
Thange is entitled for the set off from the date
as directed by the trial court.
vi. Both the sentences shall run concurrently.
vii. Criminal Appeal No.134 of 2014 is hereby
allowed.
viii. The impugned judgment and order passed by
the learned Additional Sessions Judge,
Ahmednagar dated 26.2.2014 in Sessions Case
No.384 of 2012 to the extent of
appellants/original accused no.2-Ashok
Bhaurao Thange and no.3-Bhimabai w/o
Ashok Thange is hereby quashed and set aside
and the appellants/original accused nos.2--
Ashok Bhaurao Thange and no.3 Bhimabai
Ashok Thange are hereby acquitted from all the
charges levelled against them.
ix. Fine amount, if any, paid by them shall be
refunded to them.
37 CRI APPEAL 134.2014 &
135.2021.odt
x. The appellant/accused-Sharad Ashok Thange
in criminal appeal no.135 of 2014 and the
appellants/accused no.1-Asok Bhaurao Thange
and 2-Bhimabai Ashok Thange shall execute
P.B. of Rs.15,000/- each, with one surety of the
like amount each to appear before the higher
court as and when the notice is issued in
respect of any appeal or petition fled against
the judgment of this Court. Such bail bonds
shall remain in force for a period of six months
from the date of its execution.
xi. Both the criminal appeals are accordingly
disposed off.
( SHRIKANT D. KULKARNI, J. ) ( V.K. JADHAV, J. )
...
AAA/-
