Acquitted – Urgent domestic expenses for purchasing manure cannot be termed as a demand for dowry

IN THE HIGH COURT OF JUDICATURE FOR RAJALSTHAN AT JAIPUR BENCH, JAIPUR

J U D G M E N T

1. Amit Sharma S/o Prem Prakash
2. Prem Prakash S/o Ram Narain
3. Smt.Gayatri W/o Prem Prakash…..Appellants

Versus

State of Rajasthan…..Respondent

(S.B.CRIMINAL APPEAL NO.1096/2006)

S.B.CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT DATED 29TH SEPTEMBER, 2006 PASSED BY SPECIAL JUDGE (WOMEN ATTROCITIES AND DOWRY CASES), KOTA IN SESSIONS CASE NO.44/2004 BY WHICH THE ACCUSED APPELLANTS HAVE BEEN CONVICTED AND SENTENCED UNDER SECTION 498-A AND 304-B I.P.C.
*****

DATE OF JUDGMENT ::: DECEMBER 16, 2009

P R E S E N T

HON’BLE MR. JUSTICE NARENDRA KUMAR JAIN

Mr.Kamlakar Sharma )
Mrs.Alankrita Sharma)
Mr.Govind Rawat ), for the appellants

Mr.J.R.Bijarnia,Public Prosecutor for the State

BY THE COURT:
1. This appeal under Section 374 of the Code of Criminal Procedure on behalf of above named three appellants is directed against the impugned judgment and order dated 29th September, 2006 passed by Special Judge, (Women Atrocities & Dowry Cases), Kota in Sessions Case No.44/04, whereby the trial court has convicted and sentenced each appellant under Section 304-B I.P.C. to undergo 10 years rigorous imprisonment and under section 498-A I.P.C. to undergo 3 years imprisonment and a fine of Rs.1000/-; in default of payment of fine to further undergo one month simple imprisonment. Both the sentences were ordered to run concurrently.

2. Briefly stated the facts of the case are that a written report(Ex.P10) was lodged by P.W.8 Narendra Kumar Saxena at Police Station, Mahvir Nagar, Kota on 21st May, 2004, wherein it was alleged that his daughter Manisha Saxena who was studying at Kota in B.A.Final Year, one Amit Kumar Sharma S/o Prem Prakash Sharma induced his daughter into abduction and fled away and they also got married 6 months ago in Arya Samaj, Kota. When he received this information, he went to Amit Sharma’s house, there his parents misbehaved with him and told that their son has got married with his daughter and now it will be proper for him to manage a marriage reception to save his reputation. It was further alleged that he was not allowed to meet his daughter and allowed the boy and girl both to go from Kota. On receiving an information that both are staying in Noida, Delhi in Amit’s sister’s house, he went to search his daughter at Delhi but the sister of Amit misbehaved with him and hidden Amit and Manisha both at some where else. Thereafter, Amit and his mother told him on telephone that he will have to accept their marriage and Amit who is unemployed, should be given Rs.2 to 4 Lacs for his job/business otherwise his daughter will suffer lot. It was further alleged that Amit’s maternal uncle Om Prakash Sharma, who is a Compounder in Hospital at Lakheri also told him that whatever amount he incurred in his elder daughter’s marriage, the same amount be also paid to Amit so he may start his business and his daughter may live happily. It was also alleged that as and when his daughter Manisha talked on telephone, she was not allowed to talk except few words. All of a sudden on that day he received a telephonic message from Amit that his daughter is ill and is admitted in Hospital and if he wants to meet her, he should visit her immediately. After fifteen minutes, he received another telephonic message that she is now no more. When he went to hospital at Kota, he saw the dead body of his daughter in the mortuary, he was of the opinion that his daughter has been killed after giving her poison. On the basis of above report, the police registered F.I.R. No.198/04 under Sections 304-B, 302 & 498-A I.P.C. During investigation, post-mortem of the dead body was got conducted. A written suicidal note in diary duly signed by deceased Manisha (Ex.P15) was recovered. The statements of prosecution witnesses were recorded under Section 161 Cr.P.C. After completion of investigation, the police filed a challan against appellants.

3. The trial court committed the case for trial to the court of District & Sessions Judge, Kota, which was transferred for trial to the Special Court (Women Atrocities & Dowry Cases), Kota. The trial court framed charge against all the three accused appellants for the offence under sections 498-A & 304-B I.P.C. The accused persons denied the charge and claimed trial.

4. The prosecution, in support of its case, examined P.W.1 Preeti Saxena, P.W.2 Premlata Saxena, P.W.3 Tripti Saxena, P.W.4 Sohan Lal Sharma, P.W.5 Sanjay Kumar Saxena, P.W.6 Dr.G.S.Vishnar, P.W.7 Dr.Satish Saxena, P.W.8 Narendra Saxena, P.W.9 Shiv Charan Singh, P.W.10 Shriman Lal, P.W.11 Laddu Lal, P.W.12 Sudhir Joshi, P.W.13 Jagmal Verma and P.W.14 Girdhari Lal Sharma and produced and exhibited documents from Ex.P1 to Ex.P30. Thereafter, statements of the accused persons were recorded under Section 313 Cr.P.C., wherein it was stated that family members of deceased were not agreeable with the marriage of deceased with accused Amit, therefore, due to that enmity, they have falsely implicated the accused persons. In defence, the accused persons examined D.W.1 Om Prakash Sharma S/0 Hari Prasad Sharma and D.W.2 Om Prakash Sharma S/o Durga Lal. The trial court after considering the submissions of learned counsel for both the parties as well as record of the case convicted and sentenced the accused appellants as mentioned above. Being aggrieved with the same, the appellants have preferred the present appeal.

5. The submission of the learned counsel for the appellant Shri K.K.Sharma is that it was love marriage of deceased Manisha with appellant Amit, therefore, there was no question of demanding any dowry from complainant party. The appellants Prem Prakash and Smt.Gayatri Devi parents of Amit had already accepted this marriage, they all were happy and they did not demand any dowry from the complainant party, rather the complainant party had not accepted the marriage of Manisha with Amit, therefore, they lodged the present report against the present appellants. He read out the statements of P.W.8 Narendra Kumar (father of the deceased), P.W.2 Premlata (mother of the deceased), P.W.1 Preeti and P.W.3 Tripti (sisters of the deceased), P.W.7 Dr.Satish (brother of the deceased), P.W.5 Sanjay (uncle of the deceased) and contended that from their testimony, it is clear that there is no iota of evidence for demand of dowry in connection with the marriage of Amit with Manisha. He contended that from the statements of prosecution witnesses, it is also clear that there is no evidence in respect of any cruel behaviour or harassment by accused persons with deceased Manisha. He contended that as per prosecution case, the parents of Amit told to P.W.8 Narendra Saxena to accept the marriage by arranging their marriage reception and to pay Rs.2 Lacs for business of Amit. He contended that to attract the provisions of Section 304-B or 498-A I.P.C., it is necessary for the prosecution to prove that soon before death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband and such cruelty or harassment must be for or in connection with demand of dowry. He contended that even if demand of Rs.2 Lacs for starting business of Amit is alleged to be proved, even then the appellants cannot be convicted for the offence under sections 498-A and 304-B I.P.C. in absence of any evidence about cruelty or harassment with deceased by accused for or in connection with demand of dowry in connection with marriage. He also read out the suicide note written by deceased (Ex.P15) and submitted that it was specifically written in it that she herself is responsible for her death. Nothing has been mentioned in the ‘suicidal note’ and no allegation has been alleged in it about her death on any one. Therefore, it cannot be presumed that she was subjected to any cruelty or harassment for or in connection with demand of dowry. In these circumstances, the learned trial court committed an illegality in convicting and sentencing the accused appellants. Therefore, impugned judgment/order is liable to be set aside by this Court. In support of his submissions, he referred to Appasaheb & Anr. vs. State of Maharashtra AIR 2007 SC 763, Satvir Singh & others vs. State of Punjab & another 2001(8) SCC 633, Gurucharan Kumar & Anr. vs. State of Rajasthan 2003(2) SCC 698 and K.Prema S.Rao & Anr. vs. Yadla Srinivasa Rao & Ors. – 2003(1) SCC 217.

6. Per contra, the learned Public Prosecutor argued that from the statements of P.W.1 Preeti, P.W.2 Smt.Premlata and P.W.3 Tripti, it is clear that there was demand of dowry by appellants in connection with the marriage of Manisha with Amit, the deceased was married in December, 2003 and she died in her matrimonial house on 21st May, 2004 within six months of her marriage and her death is not natural, therefore, burden is shifted on the appellants to explain under what circumstances the deceased committed suicide or she died. He also referred to the statements of P.W.1 Preeti, P.W.2 Premlata and P.W.3 Tripti and contended that deceased died at her matrimonial house because of demand of dowry by appellants. He contended that trial court has considered the evidence in detail and has rightly recorded a finding that charge against appellants is fully proved and they have rightly been convicted and sentenced.

7. I have considered the submissions of learned counsel for the parties and minutely scanned the record and the impugned judgment of the trial court.

8. From the evidence available on record, it is an admitted fact in between both the parties that deceased Manisha and Amit were in love affairs and they voluntarily married in December, 2003 in Arya Samaj without consent of their parents. The deceased Manisha and accused Amit came at Kota and started living with Amit’s parents, who had accepted their marriage and allowed them to live with them. The deceased Manisha died at her matrimonial house on 21st May, 2004. The post-mortem report dated 21st May, 2004 is Ex.P6, wherein in column No.8 relating to additional remarks, it is mentioned, Alleged H/o Celphos poisoning The Medical Board in post-mortem report gave their opinion as under:-

The opinion will be given after receiving above viscera and blood FSL report & histopic thological examination report for which above viscera blood are taken, sealed & handed over to police for the same.

9. There are two reports from FSL, one is in respect of hand writing of the deceased on ‘suicidal note’ (Ex.P15) and her signature thereon (Ex.P14) and another is in respect of viscera and blood sample. It is relevant to mention that FSL report in respect of writing and signatures of deceased is concerned it is dated 11.2.2005 and it was exhibited as Ex.P7 and the result of analysis was as under:-

DESCRIPTION OF ARTICLES DISPUTED

-Blue enclosed writings and signature in Hindi and English stamped and marked as Q1 and Q2 on last page of diary of ‘Road Master’ year 1992.

…One diary.

ADMITTED Admitted A1 to A17 . … One volume,one admission form and 3 sheets and extra one sheet.

PURPOSE OF EXAMINATION To determine authorship, of the disputed writing and signature.

RESULT OF EXAMINATION As a result of very careful and thorough scientific examination with the help of Stereomicroscope, I.R., U.V. and other light examination of the documents referred to overleaf, the following conclusion has been arrived at :-

The disputed writing and signature marked as Q1 and Q2 show significant similarities with the admitted writings and signatures marked as A1 to A17, due to following reasons :-

The disputed and admitted writings and signatures are written freely show similarities in general writing habits such as skill, line quality, pen pressure, movement, spacing, alignment, relative location of letters etc. The disputed and admitted writings and signatures are also show similarities in individual significant characteristics. Some are given below:-

(i) Internal consistency, manner of execution, relative size of the letters in the disputed writings marked as Q1 and the disputed signature marked as Q2 show significant similarities in inter se comparison.

(ii) Similar manner of execution of letter ‘?’ nature of body formation and joining with staff at lower end.

(iii) Similar nature of movement of letter ‘?’.

(iv) Similar execution of letter ‘?’ nature of body movement and its finish.

(v) Similar manner of execution of letter ‘?’ nature of start, body movement and its finish.

(vi) Similar execution of letter ‘?’ nature of eyelet formation, middle stroke and joining with staff.

(vii) Similar habit of movement in formation of letter ‘ ‘.

(viii) Similar habit of formation of vowel sign of ee, ‘O’ and ‘U’ nature of formation and placement.

(ix) Similar nature of movement of letter ‘n’.

(x) Similar manner of execution of letter ‘a’ nature of body formation and its combination with letter ‘n’.

(xi) Similar manner of execution of letter ‘h’ nature of start, body formation and joining with terminal letter ‘a’.

Above points of similarity are significant and sufficient enough to permit determination of authorship of the disputed items marked as Q1 and Q2 in comparison with the standard writings marked as A1 to A17. Hence the opinion.

10. From the above report, it is clear that hand writing and signature (Ex.P14) on suicide note (Ex.P15) belong to deceased Manisha. The contents of suicide note (Ex.P15) are, I myself is responsible for my death The exact words written in Hindi are as under:-

?? ???? ??? ?? ????????? ??? ?? I

11. So far as another FSL report about viscera and blood sample is concerned, it is dated 13.8.2004, the result of examination is as under:-

On chemical examination, portions of viscera (1-5) from two packets marked (A) and (B) gave positive tests for the presence of Aluminium Phosphide and gave negative tests for ethyl and methul alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides.

The blood sample (6) from packet marked ‘D’ gave negative tests for ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers, insecticides and inconclusive results for Aluminium phosphide.

12. From the evidence available on record, it is clear that deceased Manisha married with appellant Amit in December, 2003 and she died on 21st May, 2004 at her matrimonial house. As per suicide note (Ex.P15), she herself was responsible for her death. As per allegations, the deceased was administered poison. As per opinion of the Medical Board in the post-mortem report it was mentioned that opinion will be given after receipt of viscera and blood FSL report. As per FSL report about viscera and blood sample, there was a positive report for the presence of Aluminium Phosphide and negative test for ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers, insecticides and inconclusive results for Aluminium phosphide. Therefore, it is clear that her death was within 7 years from the date of the marriage and it was not natural.

13, The question as to whether deceased committed suicide at her own for other reasons or because of cruelty or harassment by her in-laws soon before her death for demand of dowry in connection with marriage is a question, which is to be decided after analysis of the prosecution evidence available in the case, which will be discussed hereinafter. However, before discussion of the prosecution evidence, it will be appropriate to consider the relevant provisions of law as well as case law referred during the course of arguments.

14. For ready reference Section 304-B, 498-A I.P.C. the definition of dowry as defined under Section 2 of the Dowery Prohibition Act, 1961 and Section 113-B of the Evidence Act are reproduced as under:-

304-B.Dowry death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death.

498-A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.- for the purpose of this section, cruelty means-

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Sec.2 Definition of ‘dowry’.- In this Act, ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before 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 Muslim Personal law (Shariat) applied.

Explanation I.- For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.

Explanation II.-The expression ‘valuable security’ has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).

113-B. Presumption as to dowry death.- When the question is whether a person had committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.

Explanation.-

For the purpose of this section,’dowry death’ shall have the saem meaning as in Section 304-B of the Indian Penal Code.

15. In Appasaheb & Anr. vs. State of Maharashtra(supra), the Hon’ble Apex Court held that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. As per definition of dowry as given in 1961 Act, 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. These provisions being penal provisions are to be construed strictly. Para 9 of the judgment is reproduced as under:-

9. Two essential ingredient of Section 304-B IPC, apart from others, are (i) death of women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) women 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 304-B 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 dowry 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 of 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 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.

16. In Satvir Singh & others vs. State of Punjab & another(supra), the Hon’ble Apex Court considered the meaning of word dowry defined in Section 2 of the Dowry Prohibition Act, 1961 with reference to offence under section 304-B I.P.C. and observed that there are three occasions related to dowry, One is before the marriage, second is at the time of marriage and the third is at any time after the marriage. The third occasion may appear to be an unending period. But the crucial words are in connection with the marriage of the said parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of dowry. Paras No.s 20 to 26 of the judgment are reproduced as under:-

20.Prosecution, in a case of offence under Section 304B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused soon before her death. The word dowry in Section 304B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. That definition reads thus:

2.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 marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;

at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

21 Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is at any time after the marriage. The third occasion may appear to be an unending period. But the crucial words are in connection with the marriage of the said parties. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of dowry. Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.

22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked. But it should have happened soon before her death. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words soon before her death is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the death would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept soon before her death.

23. Applying the said principle in this case we have to refer to the evidence of the prosecution to know whether the findings made by the High Court on the facts warrant interference. PW-5 Tejinder Pal Kaur in her evidence said that 4 or 5 months after her marriage, she was ill-treated on the ground of insufficiency of dowry and then she reported the matter to her father. But PW-5 did not say one word in her evidence regarding any other ill treatment relating to dowry thereafter. It is true, she said in her evidence that in November 1995, a sum of Rs.20,000/- was paid by her father. But neither PW-5 (Tejinder Pal Kaur) nor PW-6 (Narendra Singh) testified that the said amount was paid as part of the dowry or in connection with the marriage. We cannot overlook two important events which had happened in the family during the said long interregnum of three years. One is the birth of the elder son on 12.11.1993 and the other is the birth of the second son on 10.6.1995. We have to bear in mind the payment of Rs.20,000/- was made five months after the birth of the second son. Even PW-6 had no case that his daughter was subjected to any ill treatment in connection with the demand for dowry on any day after she reported to him about the demand for further dowry way back in the early 1993 months. All amounts paid by the in-laws of the husband of a woman cannot become dowry.

24. Shri U.R. Lalit, learned senior counsel for Tejinder Pal Kaur (PW-5) contended that payment of Rs.20,000/- in November 1995 should be presumed as part of the three year old demand for further dowry. When the very participants in the deliberations have no such case it is not proper for the court to make an incriminating presumption against the accused on a very crucial ingredient of the offence, more so when it is quite possible to draw a presumption the other way around as well.

25. Thus, there is dearth of evidence to show that Tejinder Pal Kaur (PW-5) was subjected to cruelty or harassment connected with the demand for dowry, soon before the attempt to commit suicide. When the position is such it is an unnecessary exercise on our part to consider whether Section 116 IPC can ever be linked with the offence under Section 304B IPC.

26. We, therefore, conclude that appellants cannot be convicted under Section 116 IPC either by linking it with Section 306 or with Section 304B. Hence the conviction and sentence passed on them under Section 116 IPC is set aside.

17. In Gurucharan Kumar & Anr. vs. State of Rajasthan(supra), the Hon’ble Apex Court considered the case with reference to Section 304-B & 306 I.P.C. on the basis of suicide note of the deceased and observed that in the suicide note, there is no statement to the effect that she was committing suicide because she had been harassed or tortured by her husband or her in-laws or that she was compelled to end her life because she was constantly taunted for having not brought a car in dowry and case projected by the prosecution at the trial about the demand of car was not accepted by the Hon’ble Apex Court. The relevant paras are 22, 25, 26, 30 & 31 are reproduced as under:-

22. It will thus appear from the contents of this letter as well that she was not being treated in a cruel manner or that any demand was being made by her husband or her in-laws. There is not even a whisper about any unpleasant event, except for her saying that she has been feeling lonely after her mother’s departure, which was natural. What is significant is that she has requested her sister to find a good match for her brother-in-law, Sanjeev and she has further clarified that the only condition is that the girl must have a fair complexion. Apart from that there was no other demand whatsoever. The fact that she was keen to get her brother-in-law married and was requesting her sister to find a good match, if at all, is indicative of the fact that she found her husband, father-in-law, mother-in-law and other members of the family to be good natured persons, and was therefore keen to get her brother-in-law married. If she was really being tortured and harassed and demands were being made, it is unlikely that she would have written such a letter to her sister. The letter also indicates that there is no demand of any sort for the marriage of Sanjeev, her brother-in-law.

25. We may now refer to the suicide note left behind by the deceased Ex.P-4. The said note reads as under:-

“Sorry.

I really mean it.

What I am going to do is by my own will and no one else is responsible for it.

Geetu”.

26. In the said note also there is no statement to the effect that she was committing suicide because she had been harassed or tortured by her husband or her in-laws or that she was compelled to end her life because she was being constantly taunted for having not got a car in dowry. In fact the note says that no one was responsible for what she was doing, and that what she was doing was entirely of her own will. It was sought to be argued before us by counsel for the State that the said suicide note only indicates that she was committing suicide voluntarily, and did not amount to the exoneration of the accused. That may be one way of reading the suicide note, but it is equally possible to read the suicide note to mean that she was entirely responsible for what she was doing and no one else was to blame. The suicide note does not contain any statement which can be used against the accused, as there is nothing in the suicide note which may even remotely suggest that she was ending her life because of the mal-treatment meted out to her by the members of her matrimonial family.

30. The letters which we have noticed are substantially contemporaneous, written at a time when it is alleged she was being subjected to cruelty at the hands of her husband, father-in-law and brother-in-law. Rather than supporting the case of the prosecution, these letters support the case of the defence that so far as they were concerned they had showered love and affection on Geetu and not subjected her to cruelty or harassment in connection with any demand for dowry. We are of the view that Geetu may have committed suicide, as she was unable to adjust herself in the changed surroundings of her matrimonial home being a highly emotional person. The evidence on record does not suggest that she was subjected to cruelty or harassment by her husband or by her father and mother-in-law for or in connection with any demand for dowry.

31. We are, therefore, of the considered view that the prosecution has failed to prove its case beyond reasonable doubt, and that the appellants are entitled to acquittal. Accordingly, we allow the appeal, set aside the judgment and order of the High Court as well as that of the trial court and acquit the appellants of the charges levelled against them. They are on bail. Their bail bonds stand discharged.

18. In K.Prema S.Rao & Anr. vs. Yadla Srinivasa Rao & Ors.(supra), the Hon’ble Apex Court while considering the provisions of Section 304-B I.P.C. observed that to attract the provision, one of the main ingredients of the offence which is required to be established is that soon before her death she was subjected to cruelty and harassment in connection with the demand for dowry. Para 16 of the judgment is reproduced as under:-

The evidence which has been found acceptable by the courts below against Accused 1 is that the cruel treatment and harassment of the deceased by him led her to commit suicide which was a death otherwise than under normal circumstances. To attract the provisions of Section 304-B IPC, one of the main ingredients of the offence which is required to be established is that soon before her death she was subjected to cruelty and harassment in connection with the demand for dowry. There is no evidence on record to show that the land was demanded as a dowry. It was given by the father to the deceased in marriage ritual as pasupukumkuma. The harassment or cruelty meted out to the deceased by the husband after the marriage to force her to transfer the land in his name was not in connection with any demand for dowry. One of the main ingredients of the offence of demand of dowry being absent in this case, the High Court cannot be said to have committed any error in acquitting Accused 1 for offence under Section 304-B IPC.

19. From relevant provisions of law and case law it is clear that to convict an accused for an offence under Section 304-B I.P.C., the following essential must be satisfied,

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 the marriage;

iii) Soon before her death the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;

iv) Such cruelty or harassment must be for or in connection with the demand of dowry.

Similarly, 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. There are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third occasion may appear to be an unending period. But the crucial words are in connection with the marriage of the said parties. There can be many other instances for payment of money or giving property as between the spouses, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of dowry. Hence the dowry mentioned in Section 304-B should be any property or valuable security given or agreed to be given in connection with the marriage.

20. In view of above legal position and settled case law by the Hon’ble Apex Court, it will be appropriate to consider the evidence of the present case. It is relevant to mention that so far as the two essential ingredients to attract the offence under Section 304-B I.P.C. are concerned, the same are not in dispute or same are fully proved from the prosecution evidence and they are, i) The deceased Manisha died otherwise than under normal circumstances or her death is not natural; ii) She died within seven years of her marriage; So far other two essential ingredients i.e. i) Soon before her death, she was subjected to cruelty or harassment by appellants; ii) Such cruelty or harassment must be for or in connection with the demand of dowry in connection with the marriage of the parties; are concerned, the same are not proved beyond reasonable doubt from the prosecution evidence.

21. In Ex.P10 written report P.W.8 Narendra Saxena stated that his daughter married with Amit and when he went to Kota to meet Amit’s parents then they misbehaved with him. They told that it will be in his interest to recognise their marriage by arranging marriage reception. It was further stated that Amit and his mother told him on telephone that he should recognise the marriage, Amit is unemployed and he should give Rs. 2-4 Lacs for his business.

22. P.W.8 Narendra Saxena in his statement stated that his daughter Manisha was studying in B.A. IInd Year in Modi College, Kota. He came to know in November, 2003 that his daughter Manisha has affairs with one boy Amit Sharma. He asked Manisha about it and she admitted it. Thereafter, he brought Manisha at Lakheri from Kota. However, she used to go once in a week to Kota for practical classes. On 8th December, 2003, she had come to Kota for Practical. On 10th December, 2003, he received a telephone from Manisha that she and Amit both have married in Arya Samaj and they are leaving Kota and he should not search them and no report in police should be lodged. He informed his wife and children about it. On the same day, he came at Kota. He also informed his elder son Satish Saxena, who was studying at Delhi. They met with the parents of Amit at Kota and both of them shown their ignorance about marriage of their son Amit. He informed that he has received a message on telephone from his daughter but they shown their innocence in this regard. Thereafter, he came to know that his daughter is residing in Noida, Delhi with sister of Amit and thereafter he furnished the telephone number of Delhi to his son Satish, who went to search Manisha and Amit at residence of the sister of Amit. Initially the gatekeeper did not allow him to enter into house but when he talked with sister of Amit then he was allowed to go inside. However, he was not allowed to meet Amit or Manisha. Thereafter his son Satish also came at Lakheri from Delhi. After some time he received telephone call from Manisha that they had come at Kota and she is happy and she is residing with Amit and his parents. He went to Kota to meet Manisha but parents of Amit told him that at present they are not available at home but in case he wants to meet both of them then he should arrange a marriage reception to give a social recognition to both of them. He told that he will consider and came back. In the meantime, engagement of his another daughter Preeti had been fixed on 2nd February, 2004. He informed his daughter Manisha on telephone and invited her to come but Manisha on telephone told him that she can not come at her own unless Amit and his parents permit her. Thereafter, he talked to Amit, but he replied that his father will grant permission. Thereafter, he talked with his mother, who replied that he should first accept the marriage by giving reception. He told that it is not possible because of engagement of his another daughter Preeti. However, they did not send Manisha in engagement of Preeti. He again went at Manisha’s house and met with the parents of Amit after engagement of Preeti, but they told him to arrange a reception and to accept their marriage. He was again told that Amit is unemployed, therefore, he should arrange for his employment or business. Thereafter, he came back. It was further stated that after some time one Om Prakash Compounder, who was known to him and who is uncle of Amit came to him and told that whatever amount which he would have spent in marriage of Manisha be paid to Amit and his family members so that Amit may start his own business as he is an unemployed. He told him to pay Rs.4 Lacs. He replied that he is busy in connection with the marriage of his another daughter Preeti. He further stated that he went to invite for the marriage of Preeti to be solemnised on 2nd May 2004 along with his wife and driver and met Amit and his parents. He handed over the invitation card but after reading the same, the same was thrown and they again told that Manisha will not go in the marriage until they accept their marriage and give reception. He further stated that on 6th May, 2004 he received a telephonic call from Manisha, who told him to satisfy the demand of Amit as they have now started harassing her. He told that he is free from the marriage of Preeti and now he will arrange her marriage reception. Thereafter, on 19th May, 2004 he again received a telephonic call from Manisha, who told him secretly that she is in hurry, now her in-laws have started harassing her, Amit gave beating and told him to bring Rs.4 Lacs failing which to face with dire consequences. On 21st May, 2004, he received a telephonic call from accused Amit at about 11 O’Clock that Manisha is admitted in hospital and she is serious, therefore, he should come in case he wants to meet her. Thereafter, he received another call after 15 Minutes and he was told by Amit that Manisha is no more and she has passed away.

23. P.W.8 in his cross examination admitted that he came to know about marriage of his daughter with Amit on 10th December, 2003, he did not lodge any report in this regard. He did not talk and contact with parents of Amit. Thereafter, he received a telephonic call from his daughter Manisha that she has come to Kota and is residing with Amit and his parents. She is happy. He admitted that it is correct that parents of Amit did not demand anything but they told him to arrange some employment for Amit. He also admitted that Om Prakash, Compounder only suggested him that he should pay some amount for business of Amit. He further admitted that when he went to invite Amit and his parents to attend marriage of his another daughter Preeti, he had written the name of Manisha alone on the invitation card and not of Amit or his parents, therefore, they threw it and they felt it badly. He admitted that parents of Amit demanded Rs.2 Lacs and not Rs.4 Lacs for employment of Amit. He denied the suggestion of defence counsel that Manisha came in depression as he did not accept her marriage with Amit and due to it she committed suicide or he compelled Manisha to commit suicide. The statement of P.W.8 is self contradictory and is not corroborated with statement of other witnesses, therefore, his statement is not trustworthy.

24. P.W.2 Smt.Premlata mother of deceased stated that Manisha is her daughter and she was not married by them but she herself arranged her marriage with Amit against her wishes in December, 2003 in Arya Samaj, Kota. She also stated the same story as stated by P.W.8 Narendra Saxena.

25. P.W.2 Premlata in her cross examination admitted that no demand of dowry was raised before marriage. It is correct that Manisha herself went from their house and they did not lodge any report with police in this regard. They came to know about marriage of Manisha with Amit on telephone. She admitted that it is correct that she did not meet Manisha since date of her marriage till her death. She stated that they did not inquire as to whether Amit Sharma is doing some business or he is unemployed or where his father was serving. She stated that she did not know about service of Prem Prakash in Arya Samaj, Vigyan Nagar. She also admitted that it is correct that they did not receive any telephone from Manisha on 28th April, 2004 till her death. She denied the suggestion that Manisha committed suicide because they did not accept her marriage with Amit. Her statement is also not corroborated with statement of other witnesses, therefore, the same does not inspire confidence.

26. P.W.1 Preeti and P.W.3 Tripti both sisters of deceased Manisha stated that accused persons demanded dowry from their parents. P.W.1 Preeti admitted that on the date of marriage of Amit with Manisha, she was in Kota, but she was not present at the time of their marriage; their marriage was a love marriage; there was no talk before marriage of Manisha, therefore, there was no demand of dowry; her father and family members did not accept Amit as their son-in-law; in her marriage card, the name of Manisha was mentioned, but name of her husband Amit was not mentioned. P.W.3 Tripti Saxena in her cross examination also admitted that in the marriage card of Preeti, name of Manisha alone was mentioned and name of Amit was not mentioned. She stated that her family members had accepted the marriage of Manisha with Amit. She admitted that she did not meet Manisha after her marriage till her death. The testimony of P.W.1 and P.W.2 is not only contrary to each other but the same is contrary to the statements of P.W.2 and P.W.8.

27. P.W.5 Sanjay Kumar Saxena brother of P.W.8 Narendra Saxena stated that his brother told him that Amit and his parents are harassing Manisha for dowry. It is relevant to mention that his statement is based on information of P.W.8 Narendra Saxena, who in his statement did not tell that there was any demand of dowry from the side of accused party and what he stated is that accused party demanded Rs.2 Lacs for business or employment of Amit.

28. P.W.7 Dr.Satish Saxena brother of deceased Manisha stated that in October, 2003 he had gone to Delhi. He received information on 10th December, 2003 and thereafter he went to Kota on 12th or 13th December and the parents of Amit told them that they should arrange for reception. He specifically admitted that there was no talks with parents of Amit as to how much expenses have been incurred in the marriage of Preeti. There was no particular demand from boy. He also admitted that no talk took place in between him and father of Amit. He also said that it is wrong to say that they did not accept the marriage of Manisha with Amit. He admitted that marriage of Manisha with Amit was a love marriage and there was no demand before the marriage. P.W.7 does not say about demand of dowry or any cruel behaviour by accused with deceased.

29. In defence, the accused persons examined D.W.1 Om Prakash Sharma S/o Hari Prasad Sharma and D.W.2 Om Prakash Sharma S/o Durga Lal. D.W.1 Om Prakash Sharma is the same person for whom P.W.8 stated that he is maternal uncle of Amit and he told him or suggested him to pay some amount for business of Amit. D.W.1 Om Prakash Sharma specifically stated that accused persons did not tell him at any time for any dowry to be demanded from P.W.8 Narendra Saxena. He only met accused persons after marriage of Amit with Manisha. He met Saxena Ji but he did not tell anything and had not demanded dowry.

30. D.W.2 Om Prakash Sharma S/o Durga Lal is the neighbour of the accused persons, who stated that the parents of Amit had accepted the marriage of Amit with Manisha and after their marriage, they arranged a function. He never saw any cruelty or harassment on the person of deceased by accused-persons. He is residing in front of the house of accused persons. He never saw the parents of deceased coming or going in the house of accused persons.

31. From the scrutiny of prosecution evidence, it is clear that so far as death of Manisha is concerned, there is no dispute that she died within seven year from the date of her marriage at her matrimonial house otherwise than under normal circumstances. There is a suicide note of deceased Ex.P15 containing I myself is responsible for my death. It is duly signed by Manisha. The signatures and writing of Manisha were sent along with her admitted signatures and writings to FSL and as per FSL report (Ex.P7) it was found that writing and signature(Ex.P14) on suicide note(Ex.P15) belonged to deceased Manisha. It is relevant to mention that Manisha had not mentioned any reason whatsoever for committing suicide. She has not alleged that she was harassed by accused persons for demand of dowry or for any other reason. If there would have been any reason then the same could have been mentioned in it. She was student of B.A.Degree Course. She herself married with accused. She herself came from her father’s house and married with Amit in Arya Samaj. All the prosecution witnesses including father, mother, brother and sisters of deceased admitted in their statements that there was no demand of dowry before marriage of Manisha with Amit. It appears to be natural for the reason that it was not an arranged marriage but it was a love marriage, therefore, there was no question of demand of dowry before or at the time of marriage. So far as so called demand of dowry after the marriage is concerned, it is sufficient to mention that all the prosecution witnesses including the parents, brother and sisters of the deceased have admitted that there was no demand of dowry, but there was demand of Rs.2 Lacs for employment of Amit or for his business as he was unemployed. From the prosecution witnesses, it is clear that some of the witnesses have admitted that they accepted the marriage of Manisha with Amit but some of them have denied this fact. Therefore, on this point, there is contradiction in between the statements of the prosecution witnesses. P.W.5 Sanjay is the only witness, who says about the harassment of Manisha for dowry but his statement is based on information of P.W.8 Narendra Saxena, who himself has not stated about demand of dowry by accused appellants, therefore statement of P.W.5 is not material evidence.

32. It is relevant to mention that from the entire examination of prosecution witnesses as discussed and mentioned above, it is clear that no witness has stated about cruelty or harassment by accused persons on the person of deceased Manisha on account of dowry in connection with her marriage. A suggestion has been given to father and mother of the deceased that they did not accept the marriage of Manisha with Amit, therefore, she committed suicide after writing a ‘suicide note’ that she herself is responsible for her death. Deceased Manisha did not mention a single word about any cruelty or harassment on her person by accused persons for any reason whatsoever including the demand of dowry. It appears that parents of Manisha did not accept her marriage with Amit, therefore, she committed suicide in the manner narrated above and due to that reason the present report was lodged by P.W.8 Narendra Saxena. It is also relevant to mention that there is no material on record to show that soon before her death the victim was subjected to cruelty or harassment. The father of Amit had already accepted the marriage of Amit with Manisha and they also arranged marriage function, which is clear from the statement of D.W.2 and from suggestion put to prosecution witnesses by defence counsel. From the prosecution evidence, it is clear that complainant party was not happy with the marriage of Manisha with Amit, may be for the reason that it was an inter caste marriage or for any other reason best known to them. So far as, the parents of Amit is concerned, they had already accepted it. From cross examination of prosecution witnesses, it is also clear that even in Preeti’s marriage, Narendra Saxena wrote name of Manisha only on the invitation card, which was handed over to the parents of Amit without mentioning the name of Amit or his parents on it. In these circumstances, it was natural that they might have thrown the card, they felt insulted by conduct of P.W.8 Narendra Saxena and P.W.2 Smt.Premlata. There is no ingredient to constitute an offence under section 498-A also. From the entire prosecution evidence, it reveals that there is no iota of evidence about cruelty or harassment by accused party on the person of deceased Manisha. It is also clear that there was no demand of dowry before or at the time of marriage or after the marriage in the present case though the prosecution evidence reveals that there was demand of Rs.2 Lacs for business of Amit. However, there is contradictions in this regard also. P.W.8 says that Om Prakash maternal uncle of Amit told him that he should pay Rs.2 Lacs to Amit to start his business. Subsequently, P.W.8 Narendra Saxena himself in his cross examination admitted that it was only a suggestion from Om Prakash Compounder to give the amount for business of Amit and there was no demand in this regard. He also admitted that parents of Amit did not demand anything but requested to make some efforts for employment or business of Amit. P.W.8 also admitted that parents of Amit demanded Rs.2 Lacs for employment. In these circumstances, it is clear that prosecution has failed to prove that there was any demand of dowry in connection with the marriage of Manisha by accused persons after her marriage. The prosecution has also failed to establish that there was any cruelty or harassment with Manisha soon before her death in connection with any demand of dowry. It is a settled law that to convict an accused for an offence under Section 304-B I.P.C., it is necessary for the prosecution to prove that soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband and such cruelty or harassment must be for or in connection with the demand of dowry.

33. I have also examined the findings of the learned trial court and the reasons assigned by him for convicting the accused persons in the light of evidence available on record as well as the submissions of the learned counsel for the appellants. In view of my above discussions of evidence and findings thereon, I find that reasons given by the learned trial court are absolutely illegal and perverse.

34. The Hon’ble Apex Court in Appasaheb & Anr. vs. State of Maharashtra(supra) has considered the definition of dowry defined under Section 2 of the Dowry Prohibition Act with reference to offence under Section 304-B I.P.C. and held that a demand for money on account of some financial stringency or meeting some urgent domestic expenses for purchasing manure cannot be termed as a demand for dowry.

35. In absence of any prosecution evidence about cruelty or harassment on the person of deceased Manisha, the charge against the appellants under Section 498-A is also not proved. The trial court committed illegality in convicting and sentencing the accused appellants.

36. In view of above discussions, I find merits in the submissions of the learned counsel for the appellants and the appeal deserves to be allowed.

37. Consequently, the appeal is allowed. The impugned judgment passed by the trial court is set aside. The accused appellants Prem Prakash and Smt.Gayatri are on bail, therefore, their bail bonds are cancelled and they need not to surrender. So far as appellant Amit Sharma is concerned, he is in judicial custody, therefore, it is directed that he be set at liberty forthwith, if his custody is not required in any other case.

(Narendra Kumar Jain) J.

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