[Cites 9, Cited by 0]
Bombay High Court
Vinayak S/O Baburaoji Kurekar vs State Of Mah. Thr. P.S.O., P.S. ... on 28 November, 2025
2025:BHC-NAG:13168-DB
1 CRI. APEAL.27-2010.JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 27 OF 2010
Vinayak S/o Baburaoji Kurekar,
Aged about 60 Yrs.,
Occ. Chikan Center,
R/o. Hinganghat, Taluka Hinganghat,
District Wardha. APPELLANT
Versus
1. State of Maharashtra,
Thr. Police Station Officer,
Police Station Pachpaoli, Nagpur
2. Dharmaraj S/o Waman Durge,
Aged about 28 Yrs., Occ. Mutton Shop.
3. Waman S/o Eknath Durge,
Aged about 51 Yrs., Occ. Mutton Shop.
4. Sou. Ushabai W/o Wamanrao Durge,
Aged about 45 Yrs., Occ. Mutton Shop,
Respondent Nos. 2 to 4
R/o. Thakkrgram, Near Piwali School,
Pachpaoli, Nagpur. RESPONDENTS
-----------------------------------------------
Ms. Aneesh Deshpande, Advocate h/f Mr. V.R. Morande,
Advocate for the Appellant.
Mr. N.B. Jawade, APP for the Respondent No.1/State.
Mrs. Nisha Gajbhiye Wasnik, Advocate for the Respondent Nos.2
to 4.
-----------------------------------------------
2 CRI. APEAL.27-2010.JUDGMENT.odt
CORAM : URMILA JOSHI PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 13th NOVEMBER, 2025.
PRONOUNCED ON : 28th NOVEMBER 2025.
ORAL JUDGMENT :- (PER : URMILA JOSHI PHALKE, J.)
1. This Appeal is preferred by the original Complainant
challenging the judgment and order of acquittal passed by the
Additional Session Judge, Nagpur in Session Trial No.350/2007
dated 29.09.2009.
2. Brief facts of the prosecution case emerges from the
Police papers and recorded evidence are as under:
2(i). The Respondent No.2 is the husband and
Respondent Nos. 3 and 4 are the in-laws of deceased Mamta.
Deceased Mamta married with accused No.1 on 01.05.2007 at
Hinganghat, District Wardha. As per the allegations, prior to the
marriage meetings were held and the accused persons have
demanded gold, Hero Honda motorcycle and cash amount and
after due deliberation Complainant agreed to pay some golden
ornaments and cash and it was agreed to pay Hero Honda
3 CRI. APEAL.27-2010.JUDGMENT.odt
motorcycle after marriage. Accordingly, the marriage was
performed. It is further alleged that, first demand was made on
16.05.2007 when accused No.2 came at the house of
Complainant for attending some rituals on the death of mother
of the Complainant. He demanded Rs. 1 Lakh for repairing the
house and for purchasing the vehicle. However, the
Complainant showed the inability to fulfill the demand. On that
count, deceased Mamta was harassed by the accused. It is
further alleged that, the accused No. 2 has taken uncle of the
deceased Devendra Kurekar to an automobile showroom and
tried to impress upon him that he is in need of motorcycle and
ask to pay the amount. The accused No.1 also came to
Hinganghat and demanded the amount for motorcycle, and
therefore, the Complainant paid him Rs. 25,000/-. On
15.06.2007, the brother of the deceased visited the house of the
deceased but he could not meet the deceased and it was
informed that she had gone to the Hospital. Therefore, the
brother of the deceased suspected and he requested the in-laws
not to ill-treat her. On 24.06.2007, the Complainant received a
telephonic call and it was informed that deceased Mamta
sustained the burn injuries and taken to the Hospital. He went
4 CRI. APEAL.27-2010.JUDGMENT.odt
to the Hospital on the next day and found deceased died due to
burn injuries, therefore he approached to the Police Station and
lodged the report.
2(ii). After registration of the crime and during
investigation the Investigating Officer has visited the alleged
spot of incident, drawn the spot panchnama and seized burn
pieces of clothes. He has forwarded the seized muddemal for
Chemical Analysis. After recording the relevant statements of
witnesses and on completion of investigation filed charge-sheet
against the accused persons. After filing of the charge-sheet, the
case was committed to the Court of Sessions. The learned
Assistant Sessions Judge, Nagpur framed Charge vide Exh.46.
2(iii). In support of the prosecution case, the prosecution
has examined in all 7 witnesses, as follows:
(i) PW-1 Vinayak Bapuraoji Exh.59 Informant
Kurekar
(ii) PW-2 Sachin Vinayakrao Exh.69 Brother of the
Kurekar deceased and
panch.
(iii) PW-3 Devendra Bapuraoji Exh.80 Uncle of the
Kurekar deceased
5 CRI. APEAL.27-2010.JUDGMENT.odt
(iv) PW-4 Kousar Anjum Exh.84 Friend of the
Mohammad Rafique deceased
(v) PW-5 Narendra Fulchand Exh.88
Machhale
(vi) PW-6 Harishchandra Ramaji Exh.94 Investigating
Reddiwar Officer
(vii) PW-7 Ramdas Baliram Exh.119 Investigating
Wakode Officer
2(iv). Besides the oral evidence, the prosecution placed
reliance on CA Reports-Exhs. 55 & 56, Report-Exh. 60, FIR-
Exh. 61, Spot panchnama-Exh.70, Inquest panchnama-Exh. 71,
Requisition to CA-Exhs. 121 & 123.
2(v). After recording the evidence, the incriminating
evidence is put to the accused persons for seeking their
explanation by recording their statements under Section 313 of
the Code of Criminal Procedure. The defence of the accused
persons is of a total denial and false implication.
2(vi). After appreciating the evidence, the learned Trial
Court held that the death of the deceased is due to burning. The
prosecution failed to prove that her death is caused otherwise in
a normal circumstances and also failed to prove that she was
6 CRI. APEAL.27-2010.JUDGMENT.odt
ill-treated due to which she committed suicide. Being aggrieved
and dissatisfied with the same, the present Appeal is preferred
by the original Complainant on the ground that, despite there is
consistent evidence of ill-treatment at the hands of the accused
persons, the learned Trial Court has ignored the evidence and
erroneously acquitted the accused persons.
3. Heard Mr. Deshpande, learned Counsel holding for
Mr. Morande learned Counsel for the Appellant/Complainant
and submitted that, the evidence of PW-1/Vinayak Kurekar,
PW-2/Sachin Kurekar and PW-3/Devendra Kurekar consistently
stated that prior to marriage the dowry was fixed. At the time of
marriage, the Complainant could not fulfill the demand of
motorcycle and on that count the deceased was consistently
ill-treated, which resulted into her death due to burning. Their
evidence shows specific instances as to the demand of dowry
and the ill-treatment at the hands of the accused persons. The
said evidence is further substantiated by the independent
witness PW-4/Kousar Anjum, who is the friend of the deceased
to whom the deceased has disclosed about the ill-treatment.
Thus, the consistent evidence corroborated by the spot
7 CRI. APEAL.27-2010.JUDGMENT.odt
panchnama and the evidence of the Investigating Officer shows
that the death of the deceased is otherwise than a normal
circumstance, and therefore, the offence under Section 304-B of
the Indian Penal Code is attracted. Alternatively, he submitted
that, the deceased has committed suicide as she fed up with the
ill-treatment at the hands of the accused persons. The evidence
of these witnesses is not shattered during the cross-examination.
In view of that, the impugned judgment is perverse and liable to
be quashed and set aside.
4. Per contra, learned APP for the Respondent
No.1/State, supported the contention of the learned Counsel for
the Complainant.
5. Learned Counsel for the accused supported the
judgment of acquittal and submitted that, there was no
mens rea as far as offence under Section 306 of IPC is
concerned.
6. He submits that, the evidence of prosecution
witnesses also falls short to prove the charges against the
accused persons. On the contrary, it reveals from the evidence
8 CRI. APEAL.27-2010.JUDGMENT.odt
that the deceased was taking treatment of Psychiatric and being
fed up with her ailment she committed suicide. The spot
panchnama shows that, the alleged incident has taken place in a
bathroom. When deceased was found in burnt condition and the
door of the bathroom was locked from inside. The entire
circumstances shows that, she has committed suicide for the
best reasons known to her. As far as the ill-treatment is
concerned, no independent witness is examined by the
prosecution supporting the case of the prosecution, and
therefore, benefit of doubt is given to the accused persons.
Therefore, the judgment and order of acquittal is proper and no
interference is called for.
7. He also invited our attention towards the principle
regarding the Appeal against acquittal and submitted that, it is
well settled that, while exercising the appellate powers
especially while dealing with appeal against acquittal, cardinal
principles to be kept in mind is that there is a presumption of
innocence in favour of the accused, unless the accused proved
guilty. The presumption continues and finally culminates into a
fact when the case ends in acquittal. The possibility of two
9 CRI. APEAL.27-2010.JUDGMENT.odt
views in criminal cases is not an extraordinary phenomenon
while considering the appeals against acquittal. A fact which
cannot be lost sight is that, the Trial Court has appreciated the
entire evidence and reversal of the order of acquittal is not to be
based on mere existence of different views or mere difference of
opinion. Normally, while exercising the appellate jurisdiction, it
is the duty of the Appellate Court to see, whether the decision is
correct or incorrect on law or facts. While dealing with the
appeals against acquittal, the Court cannot examine the
impugned judgment only to find out whether the view was
taken correct or incorrect. After reappreciation of the oral and
documentary evidence, the Appellate Court must decide
whether the Trial Court's view was a plausible view. The
Appellate Court cannot overturn acquittal only on the ground
that after reappreciating the evidence it is of the view that the
guilt of the accused was established beyond reasonable doubt.
8. The prosecution case is entirely rested upon the
circumstantial evidence. As far as the death of the deceased is
concerned, admittedly death is due to burn injuries. The
postmortem notes which are at Exh. 73 shows that, the
10 CRI. APEAL.27-2010.JUDGMENT.odt
deceased has sustained burn injuries to the extent of 90%. On
head, neck and face she has sustained 5% burn injuries,
whereas on trunk anterior posterior 16% and 18%, upper limbs
right and left 9% each, lower limbs right and left each 16% each
and perineum 1% and death is due to burn injuries. Thus, as far
as the postmortem report is concerned, the death of the
deceased is due to burn injuries which is not disputed. The
inquest panchnama Exh.71 also shows that, the deceased has
sustained the burn injuries all over the body. Now, only question
is whether the injuries sustained by the deceased are homicidal
or suicidal one.
9. To prove the prosecution case that the death of the
deceased is caused in a matrimonial house in a suspicious
circumstances within 7 years of marriage, the prosecution has
examined PW-1/Vinayak Kurekar vide Exh. 59 Informant, PW-2/
Sachin Kurekar brother of the deceased and PW-3/Devendra
Kurekar uncle of the deceased and PW-4/ Kousar Anjum friend
of the deceased.
10. The evidence of these witnesses shows that, the
marriage of deceased Mamta was performed with the accused
11 CRI. APEAL.27-2010.JUDGMENT.odt
on 01.05.2007 and the alleged incident took place on
24.06.2007 i.e. within one and half month, to prove the fact
that the deceased was subjected for mental as well as physical
cruelty by the accused by demanding unlawful demand which
resulted into the death of the deceased.
11. The evidence of PW-1/Vinayak Kurekar shows that,
in the marriage he has incurred the expenses of more than Rs. 1
Lakh. His further evidence shows that, at the time of settlement
of marriage there was a demand of 10 Tolas gold, one Hero
Honda motorcycle and Rs. 1 Lakh cash by all the accused
persons, but he shown his inability to fulfill the demand, and
therefore, initially the marriage was not fixed. After 8 days
again all the accused and the sister of the accused No.1 and her
husband approached to them and after negotiation it was
decided to give 7.5 Tolas gold, Hero Honda motorcycle and Rs.
50,000/- cash. As per the agreement the gold 7.5 Tolas and cash
of Rs. 30,000/- to be given prior to the marriage and motorcycle
after marriage at the time of Diwali festival. Accordingly, he has
given gold ornaments of 2 Tolas to accused No.1 and 5.6 Tolas
to his daughter Mamta at the time of marriage and paid Rs.
12 CRI. APEAL.27-2010.JUDGMENT.odt
30,000/-. After marriage his daughter was treated well for 15
days.
11(i). On 16.05.2007, there was rituals of Shraddha on
account of the death of his mother and accused No.2/Waman
came to his house and demanded Rs. 1 Lakh for repairing the
house and for the purpose of purchasing the vehicle but he
shown his inability on which he asked to borrow money from
the friend and also expressed readiness to return that amount.
Thereafter, his daughter was harassed by the accused persons
and deceased has disclosed this fact to his daughter-in-law
Kavita and Kavita has informed him about the harassment to
deceased Mamta on account of non-payment of money. It was
disclosed by the deceased that, she is harassed by all the family
members, and therefore, he sent PW-3/Devendra Kurekar, the
uncle of the deceased to see Mamta. He had no talk with
deceased.
11(ii). On the next day, his brother Devendra, wife of
Devendra and deceased Mamta returned to Hinganghat. The
accused has sent his daughter Mamta by informing that unless
she brought motorcycle as agreed they would not accept
13 CRI. APEAL.27-2010.JUDGMENT.odt
Mamta. His daughter was weeping and asked him to give Hero
Honda motorcycle as agreed upon. Despite which he convinced
the deceased and deceased Mamta stayed for 12 days.
Thereafter, accused No.1 came to his house and demanded the
amount for purchasing Hero Honda motorcycle. He has paid
Rs. 25,000/- to accused No.1. Thereafter, on 15.06.2007 his son
Sachin visited the house of deceased and informed him that
deceased Mamta was weeping as the ill-treatment was
continued and asked him to pay Rs. 25,000/-. Thereafter, he
called Mamta and Mamta was crying on telephone and asked
him to pay the amount and also disclosed that she is facing
ill-treatment. Thereafter, on Sunday he received a telephonic
call of accused No.2 informing him that the deceased has
sustained the burn injuries. All his relatives reached Nagpur on
the same day but due to his ill health he went on the next day,
saw the deceased and lodged report Exh.60 and FIR is at
Exh. 61.
12. The evidence of PW-2/Sachin Kurekar son of
PW-1/Vinayak Kurekar is on the similar line. The evidence of
PW-2/Sachin Kurekar is contrary as far as his visit to the house
14 CRI. APEAL.27-2010.JUDGMENT.odt
of deceased is concerned. As per the evidence of PW-2/Sachin
Kurekar on 15.06.2007 when he went to the house of Mamta
she was not in the house and on an inquiry he came to know
that she had gone to the Hospital. He made a telephonic call to
the accused No.1 who was alongwith Mamta. He went in the
Hospital and met Mamta and she told that nothing has
happened to her but she was brought forcefully. The accused
No.1 also informed that nothing has happened to her and she is
not keeping well because she is being teased and he has given
her medicine. Thereafter, Mamta started crying and disclosed
that, motorcycle was not given and they have to pay the amount
of Rs. 25,000/- and remaining amount also as early as possible
otherwise the accused will take her life. On 20.06.2007, his
father received a phone call and it was informed that, the
amount of Rs.25,000/- was not paid. On 24.06.2007, it was
informed that, his sister sustained the burn injuries. He
immediately rushed to the Hospital and seen his sister who has
sustained the burn injuries.
13. PW-3/Devendra Kurekar deposed on the similar line
as far as the ill-treatment is concerned.
15 CRI. APEAL.27-2010.JUDGMENT.odt
14. All these three witnesses are cross-examined at
length. During cross-examination, the Portion Mark-B Exh.130
of PW-3/Devendra Kurekar statement dated 02.07.2007 was put
to him to the extent that "tkokbZ uke /keZjkt g;kauh vkEgh gqaMk oxSjs nhysyk
uOgrk o R;kauhgh yXukps osMh gqaM;kph ekxuh dsysyh uOgrh".
15. The Portion Mark-A of the report also shows that
alongwith his brother deceased Mamta and mother-in-law of
Mamta also came to their house and stayed there for 4 to 5
days. The para No.8 of the cross-examination of PW-1/Vinayak
Kurekar shows that, the entire evidence regarding the meetings
dated 25.06.2007 and 02.07.2007 is an omission. The evidence
that all the accused demanded 10 Tolas gold, Hero Honda
motorcycle and Rs. 1 Lakh is also an omission. His evidence
shows that, he offered 5 Tolas gold and Rs. 10,000/- to 15,000/-
but they denied to accept. It was agreed to pay 7.5 Tolas gold
and Rs. 50,000/- cash is also an omission. His evidence further
shows that, it was decided to give 7.5 Tolas gold, cash of
Rs. 30,000/- and Hero Honda motorcycle at the time of Diwali
festival is also an omission. His further evidence shows that,
accused No.2 had come to his house at the time of ritual of
16 CRI. APEAL.27-2010.JUDGMENT.odt
Shraddha on 16.05.2007 and demanded Rs. 1 Lakh for
repairing the house and for purchasing the motorcycle is also an
omission. On 02.07.2007, the accused No.2 demanded the
money for purchasing the motorcycle is also an omission. Thus,
it appears that as far as the evidence regarding the demand by
the accused Nos. 1 and 2 is concerned, which is in the nature of
improvement which the Informant has not stated while lodging
the FIR. The evidence as to the disclosure by deceased Mamta to
her daughter-in-law about the ill-treatment is also an omission.
16. The evidence regarding the fact that the accused
informed PW-3/Devendra Kurekar to take back Mamta unless
the money is brought, is also an omission. Thus, the entire
evidence of this witness as to the demand and disclosure by
Mamta about her ill-treatment appears to be an omission, which
are proved by the defence during the cross-examination of
Investigating Officer PW-7/Ramdas Wakode. The material
contradiction which was brought on record is that during
recording his statement on 02.07.2007, he specifically stated
that the accused never demanded any dowry and no dowry is
paid. The said Portion Mark-A of his statement is already proved
17 CRI. APEAL.27-2010.JUDGMENT.odt
by the defence.
17. The evidence of PW-1/Vinayak Kurekar and
PW-2/Sachin Kurekar is also contradictory as to the incident
dated 15.06.2007. As per the evidence of PW-1/Vinayak Kurekar
when Sachin visited the house of Mamta she was weeping and
the ill-treatment was continued, whereas the evidence of
PW-2/Sachin Kurekar shows that when he visited the house of
accused on 15.06.2007, the deceased was not in house and it
was informed that she was taken to the Hospital.
18. The cross-examination of PW-2/Sachin Kurekar
shows that, on 15.06.2007 the deceased disclosed to him that
she was brought forcefully in the Hospital and nothing is
happened to her, is also in the nature of omission as it is an
improvement and not stated by him in his statement before the
Investigating Officer. The entire evidence as to the disclosure by
the deceased about the ill-treatment is in the nature of
omissions. All these material omissions are brought on record
which shows that he has not stated before the Police that
telephone call of Mamta was received after 15 days of marriage.
Mamta informed about the demand of motorcycle as agreed.
18 CRI. APEAL.27-2010.JUDGMENT.odt
Mamta has disclosed that the accused persons were telling that
articles given in the marriage were of substandard. These facts
are not stated by him before the Police. As already observed that
disclosure by Mamta on 15.06.2007 as to the ill-treatment is
also in the nature of improvement.
19. PW-3/Devendra Kurekar is the uncle of the
deceased, whose evidence is also on the similar line. During his
cross-examination it came on record that the incident he
narrated that the accused No.2 took him in the showroom of
motorcycle, is also an omission. The disclosure as to the
ill-treatment by the deceased, is also an omission. On the
contrary, Portion Mark-A of the report of the Informant shows
that, when PW-3/Devendra Kurekar has visited the house of
deceased and while returning he came alongwith the deceased
Mamta and her mother-in-law, the said Portion Mark-A is
proved by the defence during the cross-examination.
20. Besides the evidence of relatives, PW-4/Kousar
Anjum friend of the deceased was examined. As per her
evidence, on 03.06.2007 deceased Mamta had come to her
house and disclosed that her husband and in-laws are harassing
19 CRI. APEAL.27-2010.JUDGMENT.odt
her, they were beating her and asking her to bring the Hero
Honda motorcycle. She also disclosed that, her in-laws
restraining her from developing the relations with husband till
the motorcycle is brought. This entire evidence of PW-4/Kousar
Anjum is an improvement which is not stated by her during her
statement before the Investigating Officer. It is pertinent to note
that, regarding beating at the hands of the accused and in-laws
neither stated by her father PW-1/Vinayak Kurekar nor by PW-
2/Sachin Kurekar and PW-3/Devendra Kurekar.
21. PW-5/Narendra Machhale is the neighbour, whose
evidence shows that he is residing near the house of accused
No.1. On 24.06.2007, he heard the shouts of Gunja Samudre
who disclosed that smoke is coming from the house of Waman
Durge. He alongwith Deepak Paserkar went to the house of
accused and witnessed that smoke was coming from the
bathroom. He found that, the door of the bathroom was bolted
from inside. He has not heard any noise from inside of the
bathroom. They poured water above the door of the bathroom.
Deepak Paserkar has broken the door and they found that the
deceased was lying in a burnt condition and was unconscious.
20 CRI. APEAL.27-2010.JUDGMENT.odt
He sent a message through Naresh Dhabekar to the shop of the
accused Waman Durge. At the relevant time, only the daughter
of Waman by name Kajal was present in the house. All the
accused persons came to the house and taken Mamta to the
Hospital. Thus, the evidence of PW-5/Narendra Machhale shows
that the accused Nos. 1 to 3 were not present at the house at the
relevant time when the alleged incident has taken place.
22. PW-5/Narendra Machhale acted as a Panch on spot
panchnama. The recitals of the spot panchnama also shows that,
the alleged incident has taken place in the bathroom. The latch
of the bathroom was found to be broken. The Panch has also
observed the match box in the bathroom. The burnt cloth pieces
were also witnessed in the bathroom.
23. PW-6/Harishchandra Reddiwar and PW-7/Ramdas
Wakode are the Investigating Officers who have narrated about
the investigation. During cross-examination of PW-7/Ramdas
Wakode the omissions and contradictions which are brought on
record by the defence are proved. PW-7/Ramdas Wakode
further admitted that, the deceased Mamta was taken to
Dr. Pangaonkar on 15.06.2007 for treatment. He also admits
21 CRI. APEAL.27-2010.JUDGMENT.odt
that, during investigation it revealed to him that once the
accused No.3 (acquitted) has shouted, as Mamta had tried to
drink the insecticide and she has pushed the glass. Therefore,
the neighbours enquired with the deceased about the reason but
she has not replied. He further admits that, Dr. Pangaonkar is
Psychiatrist.
24. Thus, on perusal of the evidence it reveals that the
prosecution has come with a case that deceased was subjected
for the ill-treatment by demanding unlawful demand of dowry
and her death is caused in matrimonial house within 7 years of
marriage.
25. In order to convict an accused for the offence
punishable under Section 304-B of the Indian Penal Code, the
following essentials must be satisfied which are as under:
(i) the death of a woman must have been caused
by burns or bodily injury or otherwise than under
normal circumstances;
(ii) such death must have occurred within seven
years of her marriage;
22 CRI. APEAL.27-2010.JUDGMENT.odt
(iii) soon before her death, the woman must have
been subjected to cruelty or harassment by her
husband or any relatives of her husband;
(iv) such cruelty or harassment must be for, or in
connection with, demand for dowry.
26. When the above ingredients are established by
reliable and acceptable evidence, such death shall be called
dowry death and such husband or his relatives shall be deemed
to have caused her death. If the above mentioned ingredients
are attracted in view of the special provisions, the court shall
presume and it shall record such fact as proved unless and until
it is disproved by the accused. However, it is open to the
accused to discharge the burden either by cross-examination or
on the basis of preponderance of probability.
27. Section 113-B of the Indian Evidence Act, 1872
speaks about the presumption as to dowry death, which reads as
under:
"113-B. Presumption as to dowry death. ---When the
question is whether a person has committed the dowry death
of a woman and it is shown that soon before her death such
woman has been subjected by such person to cruelty or
23 CRI. APEAL.27-2010.JUDGMENT.odt
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)."
28. The prosecution under Section 304-B of the Indian
Penal Code cannot escape from the burden of proof that the
harassment or cruelty was related to the demand for dowry and
such was caused "soon before her death."
29. In view of the Explanation to the said Section, the
definition of 'dowry' defined in Section 2 of the Dowry
Prohibition Act, 1861 which 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."
30. Thus, to attract the provisions of Section 304-B of
the Indian Penal Code what is to be required to be established is
24 CRI. APEAL.27-2010.JUDGMENT.odt
that, "soon before her death" she was subjected to cruelty or
harassment "for, or in connection with the demand for dowry".
The expression "soon before her death" used in Section 304-B of
the Indian Penal Code and 113-B of the Indian Evidence Act
requires to be established with proximity test. If there is no
proximity for the alleged demand of dowry and harassment
than the offence is not proved.
31. In the case of Bansi Lal Vs. State of Haryana, (2011)
11 SCC 359, wherein it was held that while considering the case
under Section 304-B cruelty has to be proved during the close
proximity of the time of death and it should be continuous and
such continuous harassment, physical or mental, by the accused
should make life of the deceased miserable which may force her
to commit suicide. The Apex Court further held that where the
cruelty has been proved during the close proximity of the time
of death then the provisions of Section 113-B of the Indian
Evidence Act, 1872 providing for presumption that the accused
is responsible for dowry death, have to be pressed in service.
32. As far as the evidence of prosecution witnesses as to
the demand of dowry is concerned is completely an
25 CRI. APEAL.27-2010.JUDGMENT.odt
improvement. On the contrary, the Portion Mark-A of the
statement of Informant Exh.130 dated 02.07.2007 discloses that
the accused never demanded any dowry and no dowry was
paid. The entire evidence of PW-1/Vinayak Kurekar,
PW-2/Sachin Kurekar, PW-3.Devendra Kurekar and
PW-4/Kousar Anjum are omissions. Thus, the omissions as to
the dowry is an improvement.
33. Section 304-B of the Indian Penal Code, does not
mention categories of death as homicidal or suicidal or
accidental. This is because death caused by burns can be
homicidal or suicidal or accidental. Therefore, if all the other
ingredients of Section 304-B of the Indian Penal Code are
fulfilled the death whether caused by burns or by bodily injury
or occurring otherwise than under normal circumstances be
called as a dowry death.
34. The accused persons also charged for the offence
punishable under Section 498-A of the Indian Penal Code. On
perusal of the ingredients of Section it is clear that, an unlawful
demand for dowry is not a per-requisite element to constitute
"cruelty" under Section 498-A IPC. The conduct falls within
26 CRI. APEAL.27-2010.JUDGMENT.odt
either of the two broad categories i.e. willful conduct likely to
cause grave injury or mental harm or harassment intended to
coerce the woman or her family to meet any unlawful demand.
35. Thus, Section 498-A recognizes two distinct forms of
cruelty; (1) involving physical or mental harm in clause (a) and
(ii) other involving harassment meet unlawful demand for
property or valuable security in clause (b).
36. The term "willful conduct and injury" as used in
clause (a) and terms "harassment" and "unlawful demand" as
used in clause (b) emphasize, the scope and ambit of the said
clauses. It is not every type of cruelty i.e. made punishable
under Section 498-A of the IPC. The conduct which is alleged
to be cruel must be willful and it must be of such a gravity as as
likely to drive a woman to commit suicide or to cause grave
injury to life, limb or health. The word "likely" is interpreted to
show probability and stands on higher footing than a mere
"possibility".
37. In the light of the above well settled legal position, if
the evidence of the prosecution witnesses is appreciated, the
27 CRI. APEAL.27-2010.JUDGMENT.odt
conduct requires to be willful on the part of the accused and to
show the same, there is no such evidence to show that there
was no alternative before the deceased to commit suicide. The
conduct must be such on the part of the husband or relatives of
the husband of woman which is of such a nature as to cause the
woman to commit suicide or to cause grave injury or danger to
life, limb or health whether mental or physical of the woman.
38. In Section 498-A of the IPC, cruelty refers to specific
behaviours or actions that are intentionally inflicted upon
woman by her husband or relatives.
39. The definition of "cruelty" not only covers the acts
of harassment designed to coerce the woman or her family into
fulfilling unlawful demands of dowry but also recognizes the
acts which involve mental or physical harm to the deceased.
40. On appreciation of the evidence it reveals that, the
contradictions from the statement of PW-1/Vinayak Kurekar
shows that no dowry was fixed at the time of the marriage and
accused have not demanded the dowry. The entire evidence as
to the subsequent demand by the accused persons came on
28 CRI. APEAL.27-2010.JUDGMENT.odt
record in the nature of omission i.e. the improvement. The
evidence of these witnesses nowhere discloses the nature of the
harassment to the deceased. Mere saying that deceased was
harassed is not sufficient. Prosecution has to establish that there
was harassment of such a nature and there must be nexus
between the demand of dowry, cruelty or harassment based
upon such demand and the date of death. The test of proximity
will have to be applied which is not a rigid test.
41. What is pivotal to the above determination is
establishment of the proximate and live link between the cruelty
and the consequential death of the deceased. As far as
proximate test is concerned the expression "soon before" is very
relevant. The prosecution is obliged to show that soon before
the occurrence there was cruelty or harassment and only on that
case presumption operates.
42. Though the prosecution relied upon the
independent witness PW-4/Kousar Anjum but her evidence also
entirely is an improvement. There is no evidence that, the
deceased was treated with such a cruelty or harassment in
connection with the demand of dowry and there was no
29 CRI. APEAL.27-2010.JUDGMENT.odt
alternative before her but to commit suicide. On the contrary,
the admissions given by the Investigating Officer shows that, the
deceased was treated by Dr. Pangaonkar who is a Psychiatrist.
He specifically admits that, it reveals him during the
investigation that the attempt was made by the deceased
previously also but she was saved by the accused No.3 when she
was consuming insecticide. Therefore, the possibility of
committing suicide due to other reason cannot be ruled out. The
evidence further shows that, at the time of incident the accused
Nos. 1 to 3 were not at home. The dead body of the deceased
was found in the bathroom.
43. The evidence of PW-5/Narendra Machhale shows
that, only the daughter of the accused Nos. 2 and 3 was present
at the relevant time. The evidence as to the ill-treatment and
demand of dowry is completely an improvement. The learned
Trial Court rightly interpreted that the offence under Sections
304-B and 498-A of the Indian Penal Code are not made out.
The Trial Court has rightly considered that, the offence under
Section 306 of the Indian Penal Code is also not made out as
there is no evidence on record to show that in any manner the
30 CRI. APEAL.27-2010.JUDGMENT.odt
accused persons have abeted the deceased to commit suicide.
44. In view of the provisions under Section 306 read
with Sections 107 and 108 of the Indian Penal Code none of the
ingredients are attracted in the present case. To attract the
provisions what is to be seen is that the accused actually
instigated or aided the victim in committing the suicide and
there must be direct or indirect inducement to the committal of
suicide. It must be shown that, the accused have played an
active role by an act of instigation or by doing certain act to
facilitate the commission of suicide, which is absent in the
present case.
45. As already observed earlier that, while considering
the Appeal against acquittal cardinal principle is that which is to
be kept in mind, there is a presumption in favour of the
accused, unless the accused is to be proved to be guilty. When
the Trial Court has appreciated the entire evidence and reversal
of the order of acquittal is not to be based upon mere existence
of different view or mere difference of opinion. While exercising
the appellate jurisdiction, it is the duty of the Appellate Court to
see whether the decision is correct or incorrect. The Appellate
31 CRI. APEAL.27-2010.JUDGMENT.odt
Court must decide whether the Trial Court's view was a
plausible view.
46. In the light of the above principles, we do not found
any perversity in the judgment and order of the Trial Court
acquitting the accused. Therefore, the Appeal being devoid of
merits is liable to be dismissed.
47. Accordingly, the Appeal is dismissed.
48. Pending application/s, if any, shall stand disposed of
accordingly.
(NANDESH S. DESHPANDE, J.) (URMILA JOSHI PHALKE, J.)
S.D.Bhimte
Signed by: Mr.S.D.Bhimte
Designation: PA To Honourable Judge
Date: 28/11/2025 17:53:25
