Murlidhar Kashinath Mehtre vs State Of Mah. Thr. Pso Sindkhed … on 14 September, 2017

CRI.APPEAL.600.03
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.

CRIMINAL APPEAL NO. 600/2003
.
Murlidhar s/o Kashinath Mehtre
Aged about 30 years,
R/o Sindkhedraja, Dist. Buldana. .. APPELLANT

versus

State of Maharashtra
Through the P.S.O. Sindkehdraja
Dist. Buldana. .. RESPONDENT

……………………………………………………………………………………………………………………………..
Mr. P.B.Patil, Advocate for the appellant
Mr. S.B.Bissa, Additional Public Prosecutor for respondent -State
………………………………………………………………………………………………………………………………

CORAM: MRS.SWAPNA JOSHI, J.

DATED: 14th September, 2017

ORAL JUDGMENT:

Being aggrieved by the judgment and order dated 20th September, 2003

in Sessions Case No.95/2000 delivered by the learned Ad-hoc Additional Sessions

Judge, Buldana, convicting the appellant (hereinafter referred to as ‘the accused’) for

the offence punishable under section 304-B of the Indian Penal Code and sentencing

him to suffer R.I. for seven years and to pay a fine of Rs. 1000/-, in default, to suffer SI

for six months, the present Appeal is filed. The accused has also been convicted of

offence punishable u/s 498A, however, no separate sentence is awarded.

2. Brief facts giving rise to the instant Appeal may be summarized as

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under :-

Deceased-Sharda, was sister of PW1-Pralhad Kharat. Her marriage with

accused was performed on 22.4.1996. After marriage, Sharda started residing with the

accused at Sindkhedraja. For about one-and-a-half years, accused maintained Sharda

nicely, however, it is alleged that thereafter the accused started ill-treating Sharda. It is

the case of the prosecution that the accused demanded an amount of Rs. 30,000/- for

purchasing a motorcycle and on that count, he subjected Sharda to cruelty and

harassment in connection with dowry. The parents of Sharda were residing at

Jambhora. Whenever Sharda used to visit her parental home at Jambhora, she used

to disclose about the demand made by the accused and ill-treatment at his hands. PW

1-Pralhad, his wife and parents used to give understanding to Sharda and asked her to

reside at matrimonial home. It is the case of the prosecution that one month prior to

the death of Sharda, she visited the house of her brother PW1-Pralhad. At that time she

disclosed about the ill-treatment at the hands of the accused, for the demand of Rs.

30,000/- for purchasing a motorcycle and that the accused was ill-treating her for the

said purpose. About 10 to 12 days prior to death of Sharda, one Sudam Kharat, (not

examined) from Jambhora, visited the house of Sharda. On his return to Jambhora, he

informed Pralhad (PW1) that accused assaulted Sharda and had not provided food to

her. On 4.7.2000 at about 10.00 am when PW1-Pralhad was in his house he was

informed by Raju Kelkar (not examined) on telephone that Sharda was admitted in

General Hospital and was in serious condition. Accordingly, PW1-Pralhad along with

Sanjay Aawhale and Shivdas Kharat went to General Hospital, Jalna. On reaching

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there, he saw the dead body of his sister-Sharda. At the relevant time, PW6 Ramesh

Rajput, API, was attached to Police Station Sindkhedraja. He received the complaint

Exh.33 of Pralhad and on the basis of it, he registered the offence. Earlier on the same

day, accidental death was registered. PW6-Rajput, (API) recorded the statements of

the witnesses He arrested the accused. He conducted the spot panchnama and took

charge of box of ‘Endosulfan’ under the said spot panchnama. PW6 sent viscera and

box of Endosulfan to Chemical Analyser’s office,for analysis. On completion of

investigation, he submitted the charge sheet in the Court of learned JMFC. The case

was committed to the Court of Sessions. Charge was framed by the learned trial

Judge. After conducting the trial and on analysis of evidence and hearing both sides,

the learned trial Judge convicted the accused, as aforesaid. Hence, this Appeal.

3. I have heard Shri P B Patil, the learned counsel for the appellant/

accused and Shri S.B. Bissa, the learned Additional Public prosecutor for the

respondent-State. With the assistance of both the counsels, I have gone through the

entire record of the case meticulously.

4. The learned counsel for the appellant contended that the impugned

judgment and order is illegal and perverse, inasmuch as the evidence of the witnesses

examined by the prosecution do not in any manner indicate that the ingredients of

section 304-B of IPC are attracted. He further submitted that the allegations against

the accused are that he demanded an amount of Rs. 30,000/- from the relatives of the

deceased; however the said demand was not made by them at all and as such, it was

an improvement made by the witnesses, while they were examined by the prosecution.

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He submitted that Sharda was carrying pregnancy of eight months at the time of her

death. Sharda was intending that her delivery should be at her parents’ place. However

since she had lost her earlier child just seven days after the delivery at her parental

place, the accused was insisting that the parental place being a place in remote village,

her second delivery should be done at her matrimonial place i.e.Sindkhedraja. He

further submitted that since Sharda was not intending that her delivery should be

carried out at Sindkhedraja, out of desperation, she might have taken the extreme

step.

5. Per contra, Shri S.B.Bissa, the learned A.P.P. contended that since it is

proved by the prosecution that the death of Sharda occurred just within seven years of

her marriage otherwise than under normal circumstances and soon before her death

she was subjected to cruelty at the hands of the accused, the offence comes under the

purview of Sec.304B of IPC. He contended that the learned trial Judge has rightly

convicted the accused.

6. In this context, it would be advantageous to go through the provisions of

Section 304-B of the IPC which reads 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 ”

The law as it exit now provides that where the death of a woman is

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caused by any burns or bodily injury or occurs otherwise than under normal

circumstances within 7 years of marriage and it is shown that soon before her death

she was subjected to cruelty or harassment by her husband or any relative for or in

connection with any demand of dowry such death shall be punishable under Section

304-B. In order to seek a conviction against a person for the offence of dowry death,

the prosecution is obliged to prove that :

(a) the death of a woman was caused by burns or bodily injury or had

occurred otherwise than under normal circumstances;

(b) such death should have occurred within 7 years of her marriage;

(c) the deceased was subjected to cruelty or harassment by her husband

or by any relative of her husband;

(d) such cruelty or harassment should be for or in connection with the

demand of dowry; and

(e) to such cruelty or harassment the deceased shoudl have been

subjected soon before her death.

7. Keeping in mind the legal position, the evidence led by the prosecution

is to be scrutinized. The prosecution has mainly relied upon the testimony of PW1-

Pralhad Kharat, PW3-Sanjay Aawhale and PW5-Laxman Kelkar.

8. PW1-Pralhad Kharat is the brother of deceased-Sharda. According to

him, accused had maintained Sharda nicely for about one-and-a-half years. Thereafter

accused started ill-treating her by asking her to bring an amount of Rs.30,000/- for

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purchasing a motorcycle. According to PW1 as the amount was not given to the

accused, he used to beat and harass Sharda. PW1 stated that he used to give

understanding to Sharda. According to PW1, about one month prior to the death of

Sharda, she visited his house and disclosed that accused used to ill-treat her. She

stayed at Jambhora. After about 5 to 10 days accused along with Laxman Kelkar (PW

5) and one Mehtre visited his house. At that time, accused promised that he would

neither demand the amount nor ill-treat Sharda. Thereafter PW1 sent Sharda to the

house of accused. Again, ten days thereafter PW1 sent his cousin-Sudam Narendra

Kharat (nor examined) to the house of accused. Sudam disclosed that Sharda told him

that accused was ill-treating her as he used to ill treat her earlier. On 4.7.2000 Laxman

(PW 5) informed him on phone that he should immediately proceed to General Hospital,

Jalna. Accordingly PW1 went there and to his utter surprise found that Sharda was

dead. On 6.7.2000 he lodged the complaint (Exh.33).

9. It is significant to note that an improvement is noticed in the testimony

of PW1 with regard to demand of Rs. 30,000/-. Similarly, PW1 has also made an

improvement as regards the manner in which Sharda was beaten and harassed by the

accused and was ill-treated by him. Similarly further improvement is made with regard

to the fact that Sharda disclosed that the accused demanded Rs. 30,000/- and for that

she was repeatedly harassed. The said version of PW1 destroys his version about

the fact that the accused used to demand Rs. 30,000/- and for the said demand he

used to beat, harass and ill-treat Sharda. Thus, the testimony of PW1 does not inspire

confidence, with regard to the allegation that the accused used to ill-treat Sharda for

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fulfilling his demand of Rs. 30,000 and asking her to bring the said amount from her

parents’ place. Apart from that, nothing is elicited from the exhaustive cross-

examination of PW1. One more improvement in the testimony of PW1 is noticed to the

effect that in the presence of Laxman and Vishwanath, accused said that he would not

demand any amount and would not ill-treat Sharda. PW1 admitted that he had not

stated at the time of lodging of his complaint that Sudam disclosed him that Sharda told

him that the accused was still demanding the amount and was ill-treating her. The said

version of PW1 makes doubtful whether Sharda had disclosed to Sudam and then

Sudam told PW1 that the accused continued to demand the amount and ill-treat her,

even after returning from her parental home. Thus, the testimony of PW1 with regard

to the fact that accused used to demand the amount of Rs.30,000 for purchase of

motorcycle and for that purpose he continued to ill-treat her, even after Sharda returned

to her matrimonial home, is not reliable and and does not inspire any confidence.

10. The testimony of PW 5-Laxman Kelkar shows that the accused is his

neighbour and he was knowing Sharda. Sharda used to visit his house and he also

used to visit her matrimonial home. He stated that for about one-and- a-half years after

the marriage, Sharda was happy, thereafter, Sharda told him that accused was

demanding amount for the purpose of purchasing motorcycle and on that count he was

ill-treating her. Accused used to beat her and she was not willing to reside with him. PW

5-Laxman stated that he gave understanding to Sharda, so also the accused no.1 He

further deposed that one month prior to the death of Sharda, when she was at

Jambhora, accused visited his house and wanted to bring Sharda to his house and to

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maintain her nicely and therefore he accompanied the accused and one Vishwanath

and proceeded to Jambhora to the parental house of Sharda. Sharda was not ready

to go however, PW 5 gave an understanding to her that accused has promised that

he would maintain Sharda nicely. PW5 stated that the father of Sharda sent her with

him to Sindkhedraja accordingly. PW5 appears to be related to deceased Sharda as

well as the accused. PW5 in unequivocal terms stated that when Sharda came with

him from Jambhora to Sindkhedraja, she was happy till her death. Admittedly, PW 5

was the resident of the same village i.e. Sindkhedraja where Sharda used to reside

with her husband. The said version indicates that Sharda did not complain anything

against the accused soon before her death. If at all the accused continued ill-treating

Sharda after fetching her from Jambhora to Sindkhedaraja, Sharda would have

certainly complained to PW5 about the alleged ill-treatment for fulfilling the demand of

money for purchasing motorcycle. However, PW5 specifically stated that Sharda was

happy till her death. An improvement is pointed out in his testimony that Sharda

disclosed to him that accused was demanding amount for purchasing motorcycle. He

also made an improvement in his testimony before the Court that Sharda disclosed him

that accused used to beat her and therefore she was not willing to reside with him,

however PW5 gave understanding to the accused as well as Sharda. Thus, all these

improvements made by PW5 go to the root of the prosecution case and creates a

serious doubt about Sharda disclosing PW5 regarding the alleged ill-treatment at the

hands of the accused for the demand of Rs. 30,000/- for purchasing motorcycle. The

testimony of PW5 does not inspire any confidence.

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11. The prosecution also relied upon the testimony of PW3-Sanjay Aawhale

who was resident of Jambhora, in order to prove the alleged demand. PW3 deposed

that whenever Sharda used to come to Jambhora, she used to visit his house. For

about one year after the marriage she was happy. Thereafter, she told him that the

accused was ill-treating and demanding Rs. 30,000 for purchase of a motorcycle. She

also disclosed that accused used to beat her. PW3, however, failed to state as to at

what point of time Sharda disclosed him about the said demand. He simply stated

that one and a half years after the marriage said demand was made. In any case, the

said version of PW3 does not indicate that the alleged demand was made soon before

the death of Sharda. PW 4-Janardhan Kharat also deposed that Sharda disclosed him

that accused used to demand the amount for purchasing motorcycle and on that count

she was ill-treated. However, the said version is found to be an improvement in the

testimony of PW 4. Hence, his testimony cannot be relied upon.

12. It is not disputed that Sharda died unnatural death i.e. due to cardio

respiratory arrest due to consumption of organochloro insecticide Endosulphan

(Thiodan). However, the prosecution has not established that soon before the death of

Sharda, she was subjected to cruelty or harassment by accused and such cruelty or

harassment was in connection with demand of dowry. The demand of Rs. 30,000/- is

an improvement made in the version of PW1-Pralhad, who is the real brother of Sharda

and it was naturally expected that Sharda would inform her real brother about the

demand. However the said demand is found to be an improvement in the version of

complainant-PW1-Pralhad.

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13. Mr. Patil, learned counsel for the appellant placed reliance upon the

decision of the Hon’ble Apex Court, in the case of Appasaheb and another vs. State

of Maharashtra, reported in AIR 2007 SC 763. In that case what was allegedly asked

for by the accused-husband and mother-in-law of deceased was some money for

meeting domestic expenses and for purchasing manure. Since an essential ingredient

of Section 304-B IPC viz, demand for dowry was not established, the conviction of the

appellants could not be sustained. Paragraph No.6 of the said judgment reads thus:

“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

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connection with the marriage of the said parties. ….

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.”

14. In the case of Sunil Bajaj vs. State of M.P., reported in AIR 2001 SC

3020, it is held by Hon’ble Apex Court that when no offence was made out, it becomes

necessary to disturb such order of conviction and sentence to meet the demand of

justice. It is only when the ingredients of Section 304B are established by acceptable

evidence such death shall be called “dowry death” and such husband or his relative

shall be deemed to have caused her death. (para 5 and 6)

15. In the case of State of Rajasthan vs. Teg Bahadur and others, reported in (2004

13 SCC 300, Para no.18 thereof reads thus,

“Our attention was drawn to Section 113B of the Evidence Act and Section
304B of the Indian penal Code by the learned counsel appearing for the
accused. A conjoint reading of
Section 113B of Indian Evidence Act and
Section 304-B of the Indian Penal Code shows that there must be material
to show that soon before her death the victim was subjected to cruelty or
harassment. The prosecution has to be rule out the possibility of a natural
or accidental death so as to bring it within the purview of “death occurring
otherwise than in normal circumstances..”…..

16. In State of A.P. vs. Raj Gopal Asawa and another, reported in (2004) 4

SCC 470, the Hon’ble Supreme Court para 10 and Para 11 observed thus,

10. Section 113-B of the Evidence Act is also relevant for the

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case at hand. Both Section 304-B IPC and Section 113-B of the Evidence
Act were inserted as noted earlier by the
Dowry Prohibition
(Amendment) Act 43 of 1986 with a view to combat the increasing
menace of dowry deaths.
Section 113-B reads as follows:-

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

Explanation For the purposes of this section ‘dowry death’ shall
have the same meaning as in
Section 304-B of the Indian Penal
Code (45 of 1860).”

The necessity for insertion of the two provisions has been amply analysed
by the Law Commission of India in its 21st Report dated 10th August,
1988 on ‘Dowry Deaths and Law Reform’. Keeping in view the
impediment in the pre-existing law in securing evidence to prove dowry
related deaths, legislature thought it wise to insert a provision relating to
presumption of dowry death on proof of certain essentials. It is in this
background presumptive
Section 113-B in the Evidence Act has been
inserted. As per the definition of ‘dowry death’ in
Section 304-B IPC and
the wording in the presumptive
Section 113-B of the Evidence Act, one of
the essential ingredients, amongst others, in both the provisions is that
the concerned woman must have been “soon before her death” subjected
to cruelty or harassment “for or in connection with the demand of
dowry”. Presumption under
Section 113-B is a presumption of law. On
proof of the essentials mentioned therein, it becomes obligatory on the
Court to raise a presumption that the accused caused the dowry death.
The presumption shall be raised only on proof of the following essentials:
(1) The question before the Court must be whether the accused has
committed the dowry death of a woman. (This means that the

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presumption can be raised only if the accused is being tried for the
offence under
Section 304-B IPC).

(2) The woman was subjected to cruelty or harassment by her husband
or his relatives. (3) Such cruelty or harassment was for, or in connection
with any demand for dowry. (4) Such cruelty or harassment was soon
before her death.

11. A conjoint reading of Section 113-B of the Evidence Act
and
Section 304-B IPC shows that there must be material to show that
soon before her death the victim was subjected to cruelty or harassment.
Prosecution has to rule out the possibility of a natural or accidental
death so as to bring it within the purview of the ‘death occurring
otherwise than in normal circumstances’. The expression ‘soon before’ is
very relevant where
Section 113-B of the Evidence Act and Section 304-B
IPC are pressed into service. Prosecution is obliged to show that soon
before the occurrence there was cruelty or harassment and only in that
case presumption operates. Evidence in that regard has to be led by
prosecution. ‘Soon before’ is a relative term and it would depend upon
circumstances of each case and no strait-jacket formula can be laid
down as to what would constitute a period of soon before the occurrence.
It would be hazardous to indicate any fixed period, and that brings in the
importance of a proximity test both for the proof of an offence of dowry
death as well as for raising a presumption under
Section 113-B of the
Evidence Act. The expression ‘soon before her death’ used in the
substantive
Section 304- B IPC and Section 113-B of the Evidence Act is
present with the idea of proximity test. No definite period has been
indicated and the expression ‘soon before’ is not defined. A reference to
expression ‘soon before’ used in
Section 114. Illustration (a) of the
Evidence Act is relevant. It lays down that a Court may presume that a
man who is in the possession of goods ‘soon after the theft, is either the
thief has received the goods knowing them to be stolen, unless he can
account for his possession. The determination of the period which can
come within the term ‘soon before’ is left to be determined by the Courts,

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depending upon facts and circumstances of each case. Suffice, however,
to indicate that the expression ‘soon before’ would normally imply that
the interval should not be much between the concerned cruelty or
harassment and the death in question. There must be existence of a
proximate and live-link between the effect of cruelty based on dowry
demand and the concerned death. If alleged incident of cruelty is remote
in time and has become stale enough not to disturb mental equilibrium of
the woman concerned, it would be of no consequence.

17. In the case of Rajinder Singh vs. State of Punjab, reported in 2016(1)

Mh.L.J. (Cri) (S,.C.) 169, the Hon’ble Supreme Court, in para 23, observed as under :

“What must be borne in mind is that the word “soon” does not mean
“immediate”. A fair and pragmatic construction keeping in mind the great
social evil that has led to the enactment of
section 304B would make it clear
that the expression is a relative expression. Time lags may differ from case
to case. All that is necessary is that the demand for dowry should not be
stale but should be the continuing cause for the death of the married
woman under
Section 304B”

18. No doubt, death of Sharda ocurred within 7 years of her marriage and

her death occurred otherwise than under normal circumstances. However, on careful

scrutiny of the evidence on record, there is nothing to suggest that soon before her

death, Sharda was subjected to cruelty by the appellant. The testimony of the

witnesses examined by the prosecution are full of improvement and exaggerations,

hence could not be believed. It is therefore held that the prosecution has failed to

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establish that deceased-Sharda was subjected to cruelty by the appellant, soon after

her death in connection with the demand of dowry. In these circumstances, the case

put up by the learned counsel for the appellant that evidence of the witnesses

examined by the prosecution do not in any manner indicate that the ingredients of

section 304-B of IPC are attracted and since Sharda was not intending that her delivery

should be carried out at Sindkhedraja, out of desperation, she might have taken the

extreme step, appears to be probable. Hence the order :

ORDER:

i) Criminal Appeal No. 600/2003 is allowed.

ii) The impugned judgment and order dated 20th September, 2003 in Sessions

Case No.95/2000 delivered by the learned Ad-hoc Additional Sessions Judge, Buldana,

convicting the appellant for the offence punishable under section 304-B of the Indian

Penal Code is hereby set aside.

(iii) The appellant is acquitted of the offence punishable under section 304-B of the

IPC.

iv) The bail bond of the appellant shall stand cancelled.

v) Muddemal property, if any,be destroyed after the appeal period is over.

JUDGE

sahare

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