High Court
Legal Reasoning
CriAppeal-299-2004-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 299 OF 20041.Vishwanath s/o Manikrao Awachar,Age 41 years, Occ. Agri. R/o Karegaon, Tq. & Dist. Parbhani.2.Gajanan s/o Vishwanath Awachar,Age 26 years, Occ. Agri.R/o as above.3.Sow. Anjanabai w/o Vishwanath Awachar,Age 40 years, Occ. Household, R/o as above.… Appellants [Ori. Accused]versusThe State of MaharashtraThrough P.S.O. Police Station,New Mondha, Parbhani. … Respondent..…Mr. P. N. Sonpethkar, Advocate for the Appellants.Mr. K. K. Naik, APP for the Respondent-State.….. CORAM :ABHAY S. WAGHWASE, J. DATED :10.07.2024JUDGMENT : 1.Conviction recorded by the 2nd Adhoc Assistant Sessions Judge,Parbhani in Sessions Trial No. 157 of 2003 recording conviction ofpresent appellants for offence punishable under Sections 498-A and304-B of the Indian Penal Code [IPC], is now taken exception to byfiling instant appeal. CriAppeal-299-2004-2- FACTS IN BRIEF, LEADING TO TRIAL2.New Mondha Police Station, Parbhani registered crime onreceipt of report from PW4 Apparao, father of deceased Suvarna, whodied due to burns. Sum and substance of the complaint Exhibit 26 isthat deceased Suvarna was married to accused no.2 Gajanan. Therewas dowry fixed to the tune of Rs.35,000/-. Part payment was madebut for remaining amount of Rs.20,000/-, accused started harassingdeceased Suvarna. Whenever she visited father’s house, she reportedill-treatment. On 24.05.2003, Suvarna suffered 61% burns and finallysuccumbed to the same. On report by father, police registered crimebearing no. 89/2003 for offences punishable under Sections 498-A,306, 304-B r/w 34 of IPC.On conclusion of investigation, accused husband, father-in-lawand mother-in-law were tried vide Sessions Trial No. 157 of 2003.After appreciating oral and documentary evidence, learned trial Judgedid not accept the case of prosecution for commission of offencepunishable under Section 306 of IPC and acquitted accused from thesaid charge. However, accused stood convicted for offence punishableunder Sections 498-A and 304-B r/w 34 of IPC. Such judgment and order of conviction is now subject matter ofinstant appeal before this Court.
Legal Reasoning
CriAppeal-299-2004-3- SUBMISSIONSOn behalf of the appellants :3.Learned counsel for the appellants submits that prosecution hadmiserably failed to establish the charges. According to him, there is noconvincing, cogent and reliable evidence in support of dowry, itsdemand and ill-treatment in consequence to it. He pointed out thatnone of the prosecution witnesses have elaborated the manner andnature of ill-treatment, nor any instances are quoted. That, there aremere allegations of keeping deceased starved. According to him, thereis no evidence as regards cruelty, as contemplated under Section 498-A of IPC.4.He further pointed out that trial court has already acquittedaccused from offence under Section 306 of IPC. However, surprisinglyaccused are held guilty for commission of offence under Section304-B of IPC. He emphatically submitted that there is no evidence toshow that soon before alleged incidence of burns, Suvarna wassubjected to cruelty in the backdrop of any dowry demand. But stillconviction is recorded for said offence. According to him, it is againstthe provisions of law as well as the settled legal position. Hence, forall above reasons, he criticizes the judgment passed by the trial courtand seeks indulgence by allowing the appeal. CriAppeal-299-2004-4- On behalf of the State : 5.In answer to above, learned APP, while supporting thejudgment, pointed out that there is clear and cogent evidence offather, who deposed about dowry demanded by husband and in-laws.That, for unpaid dowry, there was ill-treatment. That, deceased waskept starved and was mentally harassed by repeatedly raisingdemands. Only because of such demands, according to learned APP,deceased immolated herself. That, there are not one, but two dyingdeclarations. Therefore, prosecution having established from theevidence of father and uncle of deceased, that accused areresponsible, learned trial court committed no error in accepting suchevidence, and hence he prays not to disturb the findings andconclusion reached at by learned trial court.EVIDENCE ON RECORD6.In support of its case, prosecution has examined as many as fivewitnesses. Their role and status and the sum and substance of theirevidence is as under:PW1Dr. Rodge is the autopsy surgeon, who conducted postmortemand attributed death due to shock due to extensive burns. CriAppeal-299-2004-5- PW2 Uddhav, uncle of deceased, deposed about marriage of his niecewith appellant Gajanan in June 2002. That, there wasagreement to pay dowry of Rs.55,000/- to the groom. Partamount was paid and his niece went to cohabit with appellanthusband and in-laws. They started demanding unpaid dowryand also demanded money for opening shop. They did not givefood and kept her starved. Whenever Suvarna came, shereported about above ill-treatment. They got news of shesuffering burns.PW3Bhagwan Jadhav also stated about marriage and dowry to befixed to the tune of Rs.55,000/-. He claims to be present at thetime of settlement of marriage and then about getting news ofSuvarna suffering burns.PW4 Apparao, father of deceased Suvarna, stated about marriage,dowry fixed and after his daughter went for cohabitation,husband and his parents started ill-treating Suvarna. Theydemanded Rs.50,000/- to open shop of electric appliances.When his daughter came on the eve of marriage of his son, shereported ill-treatment and starvation and pressing demand ofRs.50,000/-. Later, news was received about burns suffered byher. Therefore, he lodged report Exhibit 26.PW5PS Tanhaji Belkunde, Police Officer, who entertained the reportExhibit 26 and registered crime, deposed about all steps takenby him till filing charge-sheet. CriAppeal-299-2004-6- 7.Defence has also adduced evidence of three witnesses which isas follows :DW1ASI Bhagwan Panchange, who is police personnel and whorecorded dying declaration, which he identified to be at Exhibit37.DW2Sow. Surekha Patwe, Naib Tahsildar, who recorded dyingdeclaration Exhibit 40.DW3ASI Katare, who drew inquest panchanama Exhibit 17, recordedstatement of father-in-law (accused no.1) and forwarded reportExhibit 42 to New Mondha Police Station.ANALYSISCharge under Section 498-A IPC8.As to what actually constitutes cruelty has been lucidly andsuccinctly dealt in the landmark cases of Giridhar Shankar Tawade v.State of Maharashtra (2002) 5 SCC 177; Gurnaib Singh v. State ofPunjab (2013) 7 SCC 108; State of Andhra Pradesh v. M.Madhusudhan Rao (2008) 15 SCC 582 ; Bhaskar Lal Sharma v.Monica (2009) 10 SCC 604 and K. Subba Rao v. The State ofTelangana (2018) 14 SCC 452. CriAppeal-299-2004-7- 9.The undisputed facts are that Suvarna was married to appellanthusband on 05.06.2002. Father and uncle, who are crucial witnesses,are both deposing about dowry amount being fixed, part of it beingpaid and for the unpaid part, they both speak about ill-treatment toSuvarna. What was the ill-treatment, whether it was physical ormental, has not been clarified by the witnesses. Witnesses are notquoting the instances or manner of ill-treatment. General allegationsare made that Suvarna was ill-treated. Only aspect which is consistentin their testimony is that, deceased was kept starved. Therefore, asthere is no convincing and cogent evidence on the point of cruelty ascontemplated under Section 498-A of IPC, mere allegations of ill-treatment without specifying its nature or without quoting instances,cannot be straightway accepted.On charge of Section 304-B of IPC10.Learned trial court seems to have already acquitted accusedfrom charge under Section 306 of IPC, however, conviction seems tohave been recorded for offence under Section 304-B of IPC, whichprovision reads as under:“304-B. Dowry death. -(1) Where the death of a woman is caused by any burns orbodily injury or occurs otherwise than under normal CriAppeal-299-2004-8- circumstances within seven years of her marriage and it isshown that soon before her death she was subjected tocruelty or harassment by her husband or any relative of herhusband for, or in connection with, any demand for dowry,such death shall be called “dowry death”, and suchhusband or relative shall be deemed to have caused herdeath.Explanation.- For the purposes of this sub-section, “dowry”shall have the same meaning as in section 2 of the DowryProhibition Act, 1961 (28 of 1961).(2) Whoever commits dowry death shall be punished withimprisonment for a term which shall not be less than sevenyears but which may extend to imprisonment for life.”11.In Bansi Lal v. State of Haryana, (2011) 11 SCC 359, theHon’ble Apex Court has held that, while considering case underSection 304-B, cruelty has to be proved during close proximity of timeof death and it should be continuous and such continuousharassment, physical or mental, by accused, should make life ofdeceased miserable, which may force her to commit suicide.12.In State of Rajasthan v. Girdhari Lal, (2013) 15 SCC 269, theHon’ble Apex court has observed that the period which can come CriAppeal-299-2004-9- within the term “soon before” cannot be put within the four corners oftime-frame. It is left to the court for its determination depending uponthe facts and circumstances of each case. On facts, though in the pastthere was cruelty and harassment in connection with dowry demand,yet there was no evidence on record to come to a definite conclusionthat soon before her death the cruelty and harassment which thedeceased suffered was for or in connection with any demand ofdowry, in such situation the presumption under Section 113-B of theEvidence Act also cannot be drawn.13.Likewise, in Manohar Lal v. State of Haryana, (2014) 9 SCC645, the Hon’ble Apex Court has observed that, as per definition of“dowry death” in S. 304-B IPC and wording in presumptive S.113-B,Evidence Act, one of the essential ingredients, amongst others, in boththe provisions is that the woman concerned must have been “soonbefore her death” subjected to cruelty or harassment “for or inconnection with the demand of dowry”. The Hon’ble Apex Courtfurther observed that the proximity test has to be applied keeping inview the facts and circumstances of each case and the facts must showexistence of a proximate live link between effect of cruelty based ondowry demand and death of the victim. CriAppeal-299-2004-10- 14.Similarly, in Sher Singh v. State of Haryana, (2015) 3 SCC 724,the Hon’ble Apex Court held that there must be live link andproximity between cruelty emanating from dowry demand and deathof woman. The words “soon before her death” indicate that theremust be a live link between the cruelty emanating from a dowrydemand and the death of a young married woman, as is sought to beindicated by the words “soon before her death”, to bring Section 304-B into operation; the live link will obviously be broken if the saidcruelty does not persist in proximity to the untimely and abnormaldeath. It cannot be confined in terms of time. The demand for dowryshould not be stale or an aberration of the past, but should be thecontinuing cause for the death under Section 304-B or the suicideunder Section 306 IPC.15.The germane of above provision is that soon before death,deceased must have been shown to be subjected to cruelty in thebackdrop of dowry demand and consequently, death must have beenunnatural one. Keeping such legal requirements in mind, here,admittedly, except dying declaration, there is no other evidence aboutoccurrence. Exhibit 37 seems to be the first dying declaration. DW1, apolice personnel and who was said to be posted in Civil Hospitalpremises, on receipt of MLC, seems to have approached the doctor in CriAppeal-299-2004-11- burns ward and has recorded dying declaration Exhibit 37. Itstranslated form is as under: Exhibit 37“Myself Suvarna w/o Gajanan Awachar, age 25 yrs,occupation - household, r/o Karegaon, Tal. Parbhani. I do hereby orally state in person that, I am residingat the above mentioned place and I got married one yearago. I have mother in-law, father-in-law, one sister-in-lawand one brother-in-law. On 23.05.2003 my husband wentout of station for wedding. He returned on 23.05.2003 at23.30 O’clock, in the night. I was watching movie ontelevision. My husband had dinner and slept.On 24.05.2003 at around 00.30 in the night, as Iwas fasting on Friday, I went to the kitchen to make tea.And there was no light in the kitchen, we always usedchimney in that kitchen. I lit the chimney as there was achimney and put Govarya (a thing which is made up ofcow dunk) into the earthen stove and added kerosene fromthe chimney. And while lighting the earthen stove,suddenly the kerosene flared up, my saree layer fell on itand my back, stomach, chest, both hands, neck, chin, feetwere burnt. I screamed as I burnt. At that time my husbandand mother-in-law extinguished fire and brought me to theGovernment Hospital, Parbhani and admitted me fortreatment. Currently I am undergoing treatment. No onehas burned me. Nor did I burn myself. I don't doubtanyone. I got burnt while lighting the stove to make tea.My statement is written as per my narration, read over tome, and it is correct and true as per my narration.” [Translation provided by Senior Translator, High Court, Bench at Aurangabad] CriAppeal-299-2004-12- 16.Therefore, on appreciation of the contents of such dyingdeclaration, it is conspicuously coming on record that deceased hadattributed burns to accidental one. There are no allegations ofincineration as is tried to be posed by prosecution. 17.Similarly, there is another dying declaration which is at Exhibit40 and the translated version of the same is as under:Exhibit 40Dying DeclarationTime : 6.50 am “Myself Suvarna w/o Gajanan Awachar, age 25 yrs,occupation- household do state on oath that I have beenmarried for a year. My husband is mechanic. My maternalhouse is at Ausa. I do not have child. At my house, my in-laws, one sister-in-law, brother-in-law, grand mother-in-lawand grand father-in-law are residing. At 12.30 in the night I was making tea on theearthen stove in the kitchen, there was no light in thekitchen and the chimney was used in the house. When thekerosene from the lamp was poured to light the earthenstove, it burst into flames. My saree layer(padar) fell on thestove and caught fire. I screamed and everyone in thehouse woke up. They extinguished fire by putting quilt onme. Later all the persons of my house admitted me to thegovernment hospital for treatment.In this incident, some part of my back, both hands,chest, mouth and a hair are badly burnt. CriAppeal-299-2004-13- I don't suspect anyone nor I burnt myself. The aboveincident happened due to saree layer (padar) suddenlycatching fire on the stove. The above statement read overto me and it is true.”[Translation provided by Senior Translator, High Court, Bench at Aurangabad]18.Even on scrutiny, above dying declaration, no role whatsoeveris attributed to the appellants. As pointed out, here, allegedoccurrence of burns has taken place during the night intervening23.05.2003 and 24.05.2003. Father and uncle both unanimouslyspeak about deceased coming to attend marriage of her brother. It ispertinent to note that at such occasion, she has not levelled anyallegations. Therefore, when there is nothing indicating ordemonstrating any cruelty subjected in proximity to the burns,offence under Section 304-B IPC cannot be said to be attracted. Thereis no live link to connect accused with the episode of burns. For allabove reasons, both charges fail.19.Perused the judgment under challenge. It is apparent thatlearned trial court has not carefully considered the evidence and hasalso apparently lost sight of essential requirements, settled legalposition and quality of evidence i.e. is required to hold accusedpersons guilty of offence under Section 304-B of IPC. Therefore, there
Decision
CriAppeal-299-2004-14- is apparently improper appreciation necessitating indulgence at thehands of this Court by allowing the appeal. Accordingly, I proceed topass the following order:ORDERI.The appeal is allowed.II.The conviction awarded to the appellants Vishwanath s/oManikrao Awachar, Gajanan s/o Vishwanath Awachar and Sow.Anjanabai w/o Vishwanath Awachar, by learned 2nd AdhocAssistant Sessions Judge, Parbhani in Sessions Trial No. 157 of2003 under Sections 498-A and 304-B r/w 34 of IPC on17.04.2004 stands quashed and set aside.III.The appellants stand acquitted of the offence punishable underSections 498-A, 304-B r/w 34 of IPC.IV.The bail bonds of the appellants stand cancelled.V.Fine amount deposited, if any, be refunded to the appellantsafter the statutory period.VI.It is clarified that there is no change as regards the orderregarding disposal of muddemal. [ABHAY S. WAGHWASE, J.]vre