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Failed to prove the material ingredients of Sections 304-B and 498-A, Upheld acquittal

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.552 OF 2007
with
CRIMINAL APPEAL NO.561 OF 2007

1) CRIMINAL APPEAL NO.552 OF 2007 :

The State of Maharashtra,
Through Police Station Officer,
Police Station, Nagbhid,District Chandrapur. ………. APPELLANT

// VERSUS //

1.Ramabai w/o. Wamanrao Khanorkar,
Aged about 50 years,

2.Ajay s/o.Wamanrao Khanorkar,
Aged about 29 years, Occ.Business,r/o.Korpana.

3.Santosh w/o. Wamanrao Khanorkar,
Aged about 33 years.

All r/o. Talodhi (Balapur), Tq.
Nagbhid, Distt. Chandrapur. ………. RESPONDENTS

Mr.N.S.Rao, A.P.P. for Appellant/State.
Mr.R.P.Joshi, Advocate for Respondents.

2) CRIMINAL APPEAL NO.561 OF 2007 :

1.Ramabai wd/o. Wamanrao Khanorkar,
Aged about 52 years,

2.Ajay s/o.Wamanrao Khanorkar,
Aged about 31 years, Occ.Business..

3.Santosh w/o. Wamanrao Khanorkar,
Aged about 35 years.

All r/o. Village Talodhi (Balapur), Tq.
Nagbhid, Distt. Chandrapur. ………. APPELLANT

// VERSUS //

State of Maharashtra,
Through Police Station Officer,
Police Station, Nagbhid,District Chandrapur. ………. RESPONDENT

Mr.R.P.Joshi, Advocate for the Appellant.
Mr.N.S.Rao, A.P.P. for the Respondent.

************
Date of reserving the Judgment : 11.12.2017.
Date of pronouncing the Judgment : 22.12.2017.
************

CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.

JUDGMENT (Per M.G.Giratkar, J) :

1. Criminal Appeal No.552 of 2007 is filed by the State against the Judgment of acquittal of respondents/accused for the offence punishable under Section 302 r/w. 34 of the Indian Penal Code. Criminal Appeal No.561 of 2007 is filed by the appellants/accused against their conviction for the offence punishable under Sections 304-B and 498-A r/w. 34 of the Indian Penal Code.

2. The case of prosecution against the appellants/respondents (accused), in short, is as under :

Marriage of deceased Sarika was performed with accused no.2 Ajay s/o. Wamanrao Khanorkar on 28.5.2005. It was a settled marriage on the mediation of one Suresh Ahirkar. At the time of marriage, accused no.3 Santosh s/o.Wamanrao Khanorka caused nuisance at the marriage pendal on some trivial ground. There was reception at the house of accused. At that time, parents of deceased were insulted. Deceased was co-habitating with her husband/accused no.2 Ajay. At the time of festival of Watsavitri, father of deceased went to the house of accused. At that time, deceased Sarika was appearing to be disappointed. Whenever, she used to talk on phone, she appeared to be disappointed.

3. For the festival of Akhadi, Sarika was taken to her parent’s house by her brother Sarang. She was reached to the house of accused after Akhadi. Accused were ill-treating the deceased for dowry of Rs.1,00,000/-. On 12.9.2005, Sarika died due to burning.

4. Accused no.3 Santosh immediately lodged report about burning of deceased. Thereafter, her parents reached to the house of accused. Father of deceased namely Wasudeo Sakharam Samarth (PW-7) lodged report (Exh.59) in Police Station, Nagbhid, District Chandrapur. On his report, offence punishable under Section 304-B r/w Section 34 of the Indian Penal Code was registered. On the insistence of complainant Wasudeo, again offence punishable under Section 302 of the Indian Penal Code was added.

5. PSI Rajendra Sukhlal Kohare (PW-13) investigated some part of crime. Thereafter, investigation was handed over to API Sheikh. Both the Investigating Officers investigated the crime as usual. After completing investigation, submitted charge sheet to the Court of Judicial Magistrate, First Class, Nagbhid. The Judicial Magistrate, First Class, Nagbhid committed the case to the Court of Sessions at Chandrapur for trial.

6. Charge was framed at Exh.32 for the offences punishable under Sections 302, 498-A, 304-B, 201r/w. Section 34 of the Indian Penal Code. Defence of the accused appears to be of total denial and false implication. It is the defence of the accused that the deceased committed suicide. Prosecution has examined the following witnesses.

1) Sandeep Bhayyaji Waranasiwar (PW-1) (Exh.40).
2) Vasant Balaji Pakmode (PW-2) (Exh.42).
3) Sonabai Ratanlal Baig (PW-3) (Exh.45).
4) Ajay Krushnarao Bhagwatwar (PW-4) (Exh.46).
5) Pallavi Rajendra Rahate (PW-5) (Exh.51).
6) Vasant Mahadeoro Harde (PW-6) (Exh.52).
7) Wasudeo Sakharam Samarth (PW-7) (Exh.58).
8) Dr.Pramod Bhayyaji Khandate (PW-8) (Exh.61).
9) Manda Ramesh Deshmukh (PW-9) (Exh.69).
10) Ranjit Narayan Shendre (PW-10) (Exh.75).
11) Babybai Wasudeorao Samarth (PW-11) (Exh.77).
12) Bhaskar Vithobaji Lanjewar (PW-12) (Exh.84).
13) Rajendra Sukhlal Kohare (PW-13) (Exh.119).
14) Santosh Rustamrao Tale (PW-14) (Exh.139).
15) Anwar Mehaboob Sheikh (PW-15) (Exh.141).

7. Learned trial Court recorded statements of witnesses u/s.313 of the Code of Criminal Procedure. After hearing prosecution and defence, accused nos. 1 to 3 were convicted for the offence punishable under Section 304-B r/w. 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years. They are also convicted under Section 498-A r/w. 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.1000/-, failing which to undergo simple imprisonment for one month. The accused nos.1 to 3 are acquitted of the offences punishable under Sections 302 and 201 of the Indian Penal Code.

8. Being aggrieved by the sentence afore-mentioned, the appellants/accused have filed Criminal Appeal No.561 of 2007. The State has filed Criminal Appeal No.552 of 2007 against acquittal of appellants/accused of the offence punishable under Section 302 r/w. 34 of the Indian Penal Code.

9. Heard Mr.R.P.Joshi, learned Counsel for the accused. He has submitted that there is no evidence against the appellants/accused to convict them for the offences punishable under Sections 302 and 201of the Indian Penal Code and therefore, they are rightly acquitted by the trial Court.

10. Learned Counsel has pointed out evidence of parents of deceased i.e. Wasudeo Sakharam Samarth (PW-7) – father of deceased and Babybai Wasudeorao Samarth (PW-11) – mother of deceased and one Manda Ramesh Deshmukh (PW-9). Learned Counsel has pointed out material omissions in their evidence.

Learned Counsel has submitted that there is material omission in respect of demand of dowry.

11. Learned Counsel has submitted that prosecution has failed to prove that accused persons were demanding dowry and on that count, they were ill-treating the deceased. Learned Counsel has submitted that material ingredients of Section 304-B of the Indian Penal Code are not proved by the prosecution. Therefore, appellant/accused are wrongly convicted by the trial Court.

12. Learned Counsel has submitted that prosecution has to prove each and every ingredient of Section 304-B and 498-A of the Indian Penal Code, but prosecution has failed to prove that death of deceased was due to demand of dowry. Hence, prosecution has miserably failed to prove the offence punishable under Section 304-B and 498-A of the Indian Penal Code.

13. Learned Counsel for the appellants/accused has pointed out the Judgments in the cases of Pratap Singh and another .vs. State of M.P. reported in (2005) 13 SCC 624 and Bakshish Ram and another .vs. State and Punjab reported in (2013) 4 SCC 131.

14. At last, the learned Counsel has submitted that there is no evidence to show that the appellants/accused ill-treated the deceased on account of demand of dowry and therefore, the deceased has committed suicide. Learned trial Court has wrongly convicted all the appellants for the offences punishable under Section 304-B and 498-A of I.P.C. Hence, the impugned Judgment is liable to be quashed and set aside.

15. Heard Mr.N.S.Rao, learned A.P.P. for the State. He has submitted that deceased was in the custody of accused. Deceased died unnatural death within a short period of five months. Deceased died due to burns. Father and mother of the deceased and one independent witness Manda (PW-9) have stated about demand of dowry. Accused persons have committed murder of deceased. Learned trial Court has wrongly acquitted the accused of the offence punishable under Section 302 of the Indian Penal Code. Learned A.P.P. has submitted that the appeal filed by the State be allowed and appeal filed by the accused be dismissed.

16. Perused the evidence on record and the impugned Judgment. From the perusal of evidence, it is clear that none of the witnesses have stated anything against the accused for committing murder of deceased. As per the evidence on record, at the time of incident, accused no.2 Ajay was not present. He had gone to Amravati. Accused no.1 Ramabai Khanorkar – mother-in-law and accused no.3 Santosh Khanorkar – brother-in-law of deceased were present. Ranjit Narayan Shendre (PW-10) was also residing in the house of accused. He was servant of accused persons.

17. As per the evidence of Ranjit Shendre (PW-10), in the night of incident, there was immersion of Lord Ganesh. After immersion, in the night at about 00.00 hours, they went to sleep. He himself, Pallavi Rajendra Rahate (PW-5), accused nos. 1 and 3 were sleeping in drawing room. Deceased was sleeping in her bed room. In the morning, accused no.3 Santosh was at the pan shop. Accused no.1 Ramabai disclosed him that Sarika had left for washing clothes. He searched deceased Sarika, but could not find her. Accused no.1 Ramabai asked him to search Sarika at the house of Kaushalyabai. He went to the house of Kaushalyabai, but he did not find Sarika. Thereafter, he noticed smoke from one room of house. They tried to open door of the room, but it was closed from inside. Thereafter, he along with accused no.1 Ramabai anyhow entered inside the room.

They pulled Godrej almirah in the house and noticed that deceased Sarika was completely burnt. He raised alarm. He went running towards accused no.3 Santosh. Accused no.3 Santosh came running to the house. At that time, deceased Sarika was already dead. Immediately accused no.3 Santosh informed police by lodging report.

18. Evidence of parents of deceased show that they reached to the house of accused when they received information about the incident. There is no evidence to show that accused persons have committed murder of deceased.

19. As per the evidence of Medical Officer Dr.Pramod Bhayyaji Khandate (PW-8), deceased died due to burn injuries. As per his evidence, he conducted post mortem on the dead body of Sarika. She had sustained 92 % burn injuries. Cause of death was due to burns. There is no dispute about the death of deceased due to burn injuries. There is no dispute that deceased was married with accused no.2 Ajay on 28.5.2005. Deceased died on 12.9.2005. Death was within 4-5 months from the date of marriage. Therefore, it is clear that the deceased died within seven years from the date of marriage. Her death was also unnatural.

20. Appellants are convicted for the offence punishable under Section 304-B and 498-A of the Indian Penal Code. Section 304-B and 498-A of the Indian Penal Code read as under :

Section 304B in The Indian Penal Code :

304B. Dowry death.–

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

Explanation.–For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.] Section 498A in The Indian Penal Code :

[498A. 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.]

21. In order to seek conviction under Section 304-B of the Indian Penal Code against the accused persons for the offence of dowry death, prosecution is obliged to prove that : a) 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,

b) the deceased was subjected to cruelty or harassment by her husband or any relative of her husband, c) such cruelty or harassment should be for or in connection with the demand of dowry, d) such cruelty or harassment to the deceased should have been subjected soon before her death.

22. There is no dispute that the deceased died unnatural death due to burning. There is no dispute that the deceased died within a period of five months from the date of marriage. Dispute is about only demand of dowry and cruelty on account of demand of dowry.

23. Prosecution has not proved all the ingredients of Section 304-B of the Indian Penal Code. Prosecution has miserably failed to prove that there was any cruelty by any of the accused persons on account of demand of dowry and therefore, the deceased has committed suicide.

24. Wasudeo Sakharam Samarth (PW-7) – father of deceased has stated in his evidence that marriage of his daughter Sarika was performed with accused Ajay on 28.5.2005. Thereafter, she came to his house only for one time at the time of Akhadi festival. He did not state anything about any talk he had with deceased at the time of Akhadi festival. He has stated in his evidence that the accused were ill-treating the deceased for demand of Rs.1,00,000/-. Except this, he has not stated anything more.

25. The evidence of Wasudeo in respect of cruelty by accused on account of demand of dowry of Rs.1,00,000/- is material omission brought in his cross-examination. It is proved by the Investigation Officer. In his cross-examination, Wasudeo (PW-7) has stated as under :

” At the time of settlement of the marriage, none of the accused had made any demand. The marriage of accused no.3 Santosh was not settled. Ultimately, the marriage of accused no.2 and Sarika was solemnized on 28.5.2005.

At the time of marriage, I had given articles to my daughter Sarika as per my wish.”

26. He has further stated in his cross-examination that “he had also stated to the police that the accused were ill-treating deceased Sarika on account of demand of dowry of Rs. 1 Lakh. He cannot assign any reason as to why all these are not findings placed in his statement before the police so also report”.

27. Babybai Wasudeorao Samarth (PW-11) – mother of deceased has stated in her evidence that accused were demanding Rs.1,00,000/- and on that count, they were ill-treating the deceased. In her cross-examination, she has stated that ” I had also stated to police in my statement as to demand of Rs.1,00,000/- by the accused. It is not in my statement.”

28. The evidence of father and mother of deceased in respect of demand of dowry is nothing but omission. Therefore, it is clear that they made improvements in their evidence before the Court. Evidence of Manda Deshmukh (PW-9) shows that she had gone to the house of accused at the time of Gokul Ashtmi. At that time, deceased had told her that her mother-in-law and accused no.2 Ajay/her husband were ill-treating her. Accused no.2 Ajay was stating that Sarika had not brought dowry. Manda Deshmukh (PW-

9) has stated in her evidence that after returning to village she called mother of deceased Sarika and asked her to contact Sarika and told her that Sarika is ill-treated by accused.

29. It is pertinent to note that the evidence of Manda (PW-

9) though is supported by mother of deceased Babybai Samarth (PW-

11) by stating that Manda told her about cruelty by accused on account of demand of dowry, but it is brought on record as a material omission.

30. Except evidence of Wasudeo Samarth (PW-7), Manda Deshmukh (PW-9) and Babybai Samarth (PW-11), there is no other evidence by the side of prosecution to show demand of dowry by the accused persons and cruelty on that count. The evidence in respect of demand of dowry stated by father and mother of deceased and one Manda is nothing but material improvement. Moreover, admission of Wasudeo (PW-7) in his cross-examination shows that the marriage of his daughter with accused no.2 Ajay was settled and at the time of settlement of marriage, none of the accused persons made any demand of dowry. This itself shows that there was no any demand of dowry by the accused persons. Hence, the material ingredient sof Section 304-B and 498-A of the Indian Penal Code requiring death of deceased due to cruelty on account of demand of dowry is not proved by prosecution.

31. Evidence of Ranjit Shendre (PW-10) shows that he was compelled to give statement against the accused persons. He was detained in Police Station for about 15 days. As per his evidence, the deceased was hot tempered. She was always threatening to commit suicide. Therefore, possibility of committing suicide by the deceased due to some household problems cannot be ruled out.

32. Evidence of Investigating Officer supports the contention of Ranjit Shendre (PW-10) that he was detained in Police Station and was compelled to give statement against the accused. The cross- examination of API Anwar Mehboob Sheikh (PW-15) shows that complainant/father of deceased pressurized him to register offence punishable under Section 302 of the Indian Penal Code against the accused. A question was asked by the defence side to this witness and he replied. The question and the answer is reproduced as under :

“Question : Till the recording of statement of Ranjeet Shendre you were not having any evidence relating to offence under S.302 and 201 of I.P.C. ?

19 Answer : The witness is taking time to answer and stating repeatedly that papers were kept before me on 20-9-05 and on reading statement of Ranjeet Shendre offence under Section 302 and 201 of I.P.C. came to be added. I had recorded the statements of material relatives of the deceased after I had taken up investigation. I had recorded the statement of Babybai Samarth. I had recorded the said statement on 26.9.07. There is no contention as to the demand of Rs.1 Lac on telephone. “

33. Investigating Officer API Anwar Sheikh (PW-15) has admitted that statement of Ranjit was recorded by PSI Kohare on 12.9.2005 and thereafter, his statement was recorded on 19.9.2005. It was also recorded by PSI Kohare. The statements of Babybai Samarth and other witnesses were recorded by PSI Kohare on 12.9.2005. Again statements were recorded on 26.9.2007 by Investigating Officer API Sheikh. Statements recorded by API Kohare are not produced on record. Therefore, it appears that prosecution has suppressed material fact from the Court.

34. There is no evidence to show that the accused persons committed murder of deceased Sarika. There is no evidence to show that death of Sarika was dowry death as defined under Section 304-B and cruelty u/s. 498-A of the Indian Penal Code. The material ingredients of Sections 304-B and 498-A of the Indian Penal Code are not proved by prosecution.

35. Learned Counsel for the appellants/accused Mr.R.P.Joshi has pointed out the decision in the case of Bakshish Ram and another .vs. State of Punjab (cited supra). It is held by Hon’ble Supreme Court that ” It is but natural that being the mother of deceased if she had come across any harassment or ill-treatment of her daughter in connection with demands for dowry soon before her daughter’s death, she could have explained the same in her evidence. She had neither asserted nor narrated any complaint from her daughter about harassment or ill-treatment by the appellants. The mother of the deceased has not stated anything in her evidence with regard to harassment or mal-treatment of the deceased by the appellants on the basis of her personal knowledge………….. Hence, the evidence is not helpful insofar as the allegation of harassment and maltreatment in relation to demand of dowry is concerned. It is further held that 21 prosecution is obliged to show that soon before occurrence, there was cruelty or harassment in relation to dowry demand and only in that case presumption u/s.113-B of the Evidence Act operate.”

36. In the present case, father and mother of the deceased have stated regarding demand of Rs.1,00,000/- by accused persons, but those are material omissions proved by the Investigating Officer. Therefore, there is no evidence to show that there was any demand of dowry of Rs.1,00,000/-. There is no evidence of cruelty. Not a single neighbour of accused examined by the prosecution to show cruelty by the accused persons. On the other hand, Wasudeo (PW-7), father of deceased has stated in his evidence that it was a settled marriage. At the time of settlement of marriage, accused persons did not demand any dowry. Therefore, material ingredients of Section 304-B and 498-A of Indian Penal Code are not made out by Prosecution.

37. Learned Advocate for the appellant has pointed out decision in the case of Pratap Singh and another .vs. State of M.P. (cited supra), wherein the Hon’ble Supreme Court has observed that “Investigating Officer has failed to file statements of two independent 22 eye witnesses recorded under Section 161 of the Code of Criminal Procedure along with the charge sheet and also not examined them in the Court, observed that, for such lapses, adverse inference needs to be drawn.” In the present case also, prosecution has suppressed the earlier statement recorded by PSI Kohare. Statements are intentionally not produced with the charge sheet and material facts are suppressed from the Court.

38. All the above discussion clearly shows that prosecution has failed to prove the material ingredients of Sections 304-B and 498-A of the Indian Penal Code that deceased Sarika was ill-treated and subjected to cruelty by accused persons on account of demand of dowry. Therefore, it is clear that accused are wrongly convicted by trial Court for the offences punishable under Sections 304-B and498-A r/w. 34 of the Indian Penal Code. There is no evidence by the side of prosecution for the offence punishable under Section 302 of the Indian Penal Code. Hence, we proceed to pass the following order.

23 // ORDER // Criminal Appeal No.552 of 2007 filed by the State is hereby dismissed.

Criminal Appeal No.561 of 2007 filed by appellants/accused is hereby allowed.

Appellants/accused are hereby acquitted of the offences punishable under Sections 304-B and 498-Ar/w. 34 of the Indian Penal Code.

Appellants are on bail. Their bail bonds shall stand cancelled.

Fine amount, if paid, be refunded by the appellants/accused.

The record and proceedings be sent back to the trial Court.

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