Praveen Kumar Pandey @ Babua vs State Of U.P. on 31 August, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved A.F.R.

Case :- CRIMINAL APPEAL No. – 530 of 1998

Appellant :- Praveen Kumar Pandey @ Babua

Respondent :- State Of U.P.

Counsel for Appellant :- Ravi Dingar

Counsel for Respondent :- Govt. Advocate Zeba Islam Siddiqui

Hon’ble Sheo Kumar Singh-I,J.

1. Appellant Praveen Kumar Pandey @ Babua has challenged judgment and order of conviction dated 31.8.1998 passed by VIth Additional Sessions Judge, Lucknow in Session Trial No.12 of 1987 State versus Praveen Kumar Pandey @ Babua and others whereby and hereunder the appellant was found guilty under section 498-A and 306 IPC and is sentenced to undergo rigorous imprisonment for a period of one year under Section 498-A of IPC, to undergo rigorous imprisonment for a period of three years under Section 306 IPC.

2. Brief facts giving rise to the present appeal are narrated as follows:-

One Geetu, sister of Dayal Lakhani, the complainant was married four years back to the accused/appellant. The family of the deceased and the appellant are resident of same locality i.e. Kaiser Bagh, Lucknow. The marriage of deceased with the appellant took place just four years back. At that time accused-appellant used to live in Bombay. Appellant has also his parental house at Lucknow which is situated near the house of the complainant. After the marriage, the appellant with other family members started harassing, maltreating and beating deceased on account of non fulfilment of demands of dowry. Despite all efforts, the attitude of the appellant towards the deceased went from bad to worse. on 31.8.1985 at about 3.30 A.M. in the previous night, the mother of the appellant came to the house of complainant and informed about the incident of burn of deceased and also communicated that she has been taken to hospital. The family members of the deceased went to the hospital. During treatment she died due to burn injuries. In the written report Ex.K-1, which was communicated to the police station, it was narrated by the brother of deceased, complainant, that just after solemnization of the marriage, the deceased was continuously harassed, maltreated and beaten by the appellant for demand of dowry and also to bring money from the parental house. On this information, the first information report was lodged and panchayatnama Ex.K-2 was prepared. After preparation of panchayatnama, police sent the body of deceased to the Chief Medical Officer for post mortem and the body was taken to mortuary for anti mortem injury. During investigation, the investigating officer found that it was a case of torture for demand of dowry and also enforcing the deceased to commit suicide. The case was committed to the court of session where charges were levelled against the appellant under Section 498-A and 306 IPC for which he pleaded not guilty and stated for trial. The court of Additional Session Judge vide order impugned dated 31.8.1998 found the appellant guilty under Section 306 and 498-A IPC and convicted and sentenced as above.

3. Aggrieved by the order, this appeal has been preferred on the following grounds:-

(i) That the impugned order of conviction is unjust, illegal and inequitable.

(ii) That the marriage of the deceased with the appellant, being a love marriage, there could be no demand of dowry and the trial court erred in holding that the deceased was treated with cruelty for the demand of dowry.

(iii) That the prosecution evidence rests on the testimony of highly interested witnesses who are also inimical to the appellant. There is no independent corroboration of the prosecution case.

(iv) That there is no evidence that the accused-appellant had ever abetted his wife to commit suicide.

(v) That the conviction and sentence to the appellant was based on conjecture and surmises and is liable to be set aside.

4. In support of the prosecution case, PW-1 Dayal Lakhani, PW-2 Smt. Meera Lakhani, PW-3 City Magistrate Sangh Mitra Shanker, PW-4 Dr. S.N. Srivastava, PW-5 Sindhi Lakhani, PW-6 SI Anandi Prasad, PW-7 Constable Arvind Singh, PW-8 Dr. S.K. Gupta, PW-9 SI Pramod Kumar Katiyar and PW-10 Deputy .S.P. Mahaveer singh were examined.

5. Dr. S.N. Srivastava who was examined as PW-4 was posted as Emergency Medical Officer in civil hospital, Lucknow on 31.8.1985 and has stated on oath that general condition of the patient was very bad and the patient was gasping and was in the state of shock, her pulse was 140 per minute. The tongue was dry, the eyes were opened and breathing was 40 per minute. It was further stated that patient was in an unconscious state and foul smell of kerosene oil was coming from the body of the injured- deceased. Hairs of the head of deceased were burnt and matted. The burn injuries were spread all over the body including face, neck, upper external whole of chest including breast and in the opinion of the doctor, it was a case of burn caused by flame totalling about 90%. The patient was admitted in the emergency condition. Thus the incharge of Kaiserbagh Kotwali was informed about the incident. After the death of the deceased, post mortem injury report was prepared by Dr. S.K. Gupta, the Medical officer in civil hospital, Lucknow. In the examination, he had stated that the deceased was about 25 years of age and there was burn all over her face, the skin was coming out from the body and was peeping. Medical Officer also found superficial burn injury on the part of both buttock and medial side of the thigh and genital part. According to the opinion of the medical officer, the death of the deceased was caused due to shock and haemorrhage of burn injuries on her body. The deposition made before the court by Dr. S.N. Srivastava PW-4 and Dr. S.K. Kupta PW-8 it has been proved beyond all reasonable doubt that the deceased died due to shock and haemorrhage as a result of burn injuries on the body. It is also clear that there were smell of kerosene oil on her body.

6. On examination of PW-1 Dayal Lakhani, he stated on oath that the deceased was his sister, who was married to appellant-accused Praveen Kumar just before four years of her death. He had narrated that appellant used to beat his sister in order to bring money and household items from her parental house. On the day of the incident, mother of the accused Maya Devi came to the house of complainant and said that Geetu poured kerosene oil on herself and lit fire and has been burnt seriously. It was informed by the mother of the appellant that there was a dispute in between the husband and wife in the previous night and that was the cause of the incident. They visited immediately to the medical hospital but in the day at about 2.30 to 3.00 P.M. unfortunately she died. He had proved the first information report Ex. K-1 which was lodged to the police station. PW-1 Daya Lakhani has also submitted certain letters of his sister which were addressed to the appellant.

7. PW-2 Smt. Meera Lakhani, sister of the deceased was residing with her brother has narrated that deceased was her younger sister and after the marriage, Gopi Lakahani was named as Geetu Pandey. During the said period, her younger sister the deceased had gone to the college to take role number for intermediate examination and from there she went to Bombay with the accused Praveen Kumar Pandey and solemnized their marriage as love affair. After one month of the marriage, they came to Lucknow and began to live with their parents at Lucknow but the tragedic story had started when he started to demand money, household items and later on some amount of money for monthly expenditure. It had also been narrated by this witness that the deceased was being regularly beaten by the appellant in case of non fulfilment of demand of dowry, it was communicated to the witness from the deceased. Narrating the incident, PW-2 Meera Lakhani had stated that at one point of time, the appellant Praveen stood up by putting foot on the stomach of the deceased while she was pregnant then the deceased Geetu pushed the appellant to save her life. On the unfortunate night of 31.8.1985 she was not present at Lucknow and had gone to her mother’s house at Udaipur. She got the information by telegram with regard to burning case of the deceased and she immediately rushed to the Lucknow but during the journey, she was informed that Geetu, her younger sister was pushed to death by fire.

8. PW-5 Smt. Sindhi Lakhani had also deposed with regard to marriage, demand of dowry, torture and harassment as also incident of burn by means of kerosene oil and thereafter admission in hospital and after that death of Geetu Pandey. It has further been submitted in the statement that the deceased was badly beaten before the occurrence and the appellant generally used to beat the deceased which was frequently told by the deceased to this witness. She had further narrated in her deposition that foul smell of kerosene was coming from body and cloth of the deceased when she saw her in hospital. She had seen scarce and marks on the back side of the deceased, which disclosed that she was generally beaten by the appellant.

9. PW-3 Smt. Sangh Mitra Shanker was posted as City Magistrate and on information she attended immediately to the deceased for recording dying declaration and found that the injured was in an unconscious state and was not in a position to give statement and thus endorsement was made on the letter of request that she was not able to make any statement. PW-6 SI Anandi Prasad had stated that during the period of his posting as S.I. in Kaiser Bagh Kotwali, this information was brought before his knowledge in writing and on the basis of this information, first information report was lodged and he immediately rushed to the civil hospital. PW-7 Constable Arvind Singh has proved Ex.K-12 and Ex. K-13 chick report and entries in the G.D. PW-9 Pramod Kumar Katiyar was previously investigating officer who recovered the letters of deceased Ex. K-6 to Ex. K-9 and also recorded the statement of some witnesses and visited to the spot for preparation of the site plan. After the death of the deceased, the matter was referred to the Deputy S.P. Mahabir Singh. PW-10 Deputy S.P. Mahabir Singh has further investigated the case and recorded the statement of some witnesses and after investigation, he was of the opinion that this was due to demand of dowry and harassment and thus submitted charge sheet.

10. Learned counsel for appellant had contended that the learned trial court proceeded with the trial on mere ipse dixit. of 10 witnesses were examined by the prosecution to establish the case of alleged cruelty and harassment meted out by the accused appellant to the victim without really there being any material to prove the guilt of the accused appellant. He pointed out that as per explanation (a) and (b) of Section 498A of the IPC ‘cruelty’ has been defined which holds good for establishing the guilt under Section 306 IPC and in the instant case, except the fact that these witnesses orally stated that whenever the victim/deceased talked to the members of her parental house, she disclosed to them that her husband used to torture her for money and valuable things and used to create pressure for bringing money from her parental side.

11. Learned counsel for appellant has submitted before this court that the deceased was suffering from mental depression and psychosis and no case has been made out for bringing the same within the definition of dowry as contained in the Dowry Prohibition Act, 1961. He has further submitted that she was suffering from mental depression even before her marriage. The prosecution has filed several letters which show that she had faith in her husband and she was very hopeful that the relations may survive after some interval of time.

12. Thus, from the recitals in the letters we can safely hold that there was a clear possibility and a tendency on her part to commit suicide due to desperation and frustration. She seems to be tired of her married life, but she still hoped against hope that things might improve. At any rate, the fact that she may have committed suicide cannot be safely excluded or eliminated. It may be that her husband may have murdered her but when two views are reasonably possible the benefit must go to the accused. In order to buttress the opinion, I would like to cite some passages of an eminent psychiatrist, Robert J. Kastenbaum where in his book Death, Society and Human Experience he analyses the causes, the circumstances, the moods and emotions which may drive a person to commit suicide. The learned author has written that a person who is psychotic in nature and suffers from depression and frustration is more prone to commit suicide than any other person. In support of our view, we extract certain passages from his book:

The fact is that some people who commit suicide can be classified as psychotic or severely disturbed.

If we are concerned with the probability of suicide in very large populations, then mental and emotional disorder is a relevant variable to consider.

And it is only through a gross distortion of the actual circumstances that one could claim all suicides are enacted in a spell of madness.

Seen in these terms, suicide is simply one of the ways in which a relatively weak member of society loses out in the jungle-like struggle.

The individual does not destroy himself in hope of thereby achieving a noble post-mortem reputation or a place among the eternally blessed. Instead he wishes to subtract himself from a life whose quality seems a worse evil than death,

The newly awakened spirit of hope and progress soon became shadowed by a sense of disappointment and resignation that, it sometimes seemed, only death could swallow,

Revenge fantasies and their association with suicide are well known to people who give ear to those in emotional distress.

People who attempt suicide for reasons other than revenge may also act on the assumption that, in a sense, they will survive the death to benefit by its effect.

The victim of suicide may also be the victim of self-expectations that have not been fulfilled. The sense of disappointment and frustration may have much in common with that experienced by the person who seeks revenge through suicide…. However, for some people a critical moment arrives when the discrepancy is experienced as too glaring and painful to be tolerated. If something has to go it may be the person himself, not the perhaps excessively high standards by which the judgment has been made…. Warren Breed and his colleagues found that a sense of failure is prominent among many people who take their own lives.

13. The above observations are fully applicable to the case of deceased. She solemnly believed that her holy union with her husband would bring health and happiness to her but unfortunately it seems to have ended in a melancholy marriage which in view of the circumstances detailed above, left her so lonely and created so much of emotional disorder resulting from frustration and pessimism that she was forced to end her life. There can be no doubt that deceased was not only a sensitive and sentimental woman but was extremely impressionate (sic) and the letters show that a constant conflict between her mind and body was going on and unfortunately the circumstances which came into existence hastened her end. People with such a psychotic philosophy or bent of mind always dream of an ideal and if the said ideal fails, the failure drives them to end their life, for they feel that no charm is left in their life.

14. Mary K. Hinchliffe, Douglas Hooper and F. John Roberts in their book The Melancholy Marriage observe that-

Studies of attempted suicide cases have also revealed the high incidence of marital problems which lie behind the act. In our own study of 100 consecutive cases (Roberts and Hooper 1969), we found that most of them could be understood if the patients’ interactions with others in their environment were considered. (p. 5)

15. Such persons possess a peculiar psychology which instills extreme love and devotion but when they are faced with disappointment or find their environment so unhealthy or unhappy, they seem to lose all the charms of life. The authors while describing these sentiments observe thus:

‘Hopelessness’, ‘despair’, ‘lousy’ and ‘miserable’ draw attention to the relationship of the depressed person ‘to his environment. The articulate depressed person will often also struggle to put into words the fact that not only does there appear to be no way forward and thus no point to life – but that the world actually looks different. (p. 7)

16. Coleridge in Ode to Dejection in his usual ironical manner has very beautifully explained the sentiments of such persons thus:

I see them all so excellently fair –

I see, not feel, how beautiful they are;

17. He further contended that there is nothing available in the evidence of prosecution witnesses to show that since when the inmates of the in-law’s house of the victim started torturing her either for bringing money from her parents or for any other reason. Mere omnibus statement regarding demand of money does not ipso facto make out a case under Section 498A IPC, prosecution is required to prove the overt acts attributed by the accused appellants beyond reasonable doubt. In support of his aforesaid contention, he placed reliance on the decision of the Apex Court in Sakharam and Anr. v. State of Maharashtra reported in : (2003) 12 SCC 368.

18. He also contended that mere harassment of wife by her husband or in -laws due to dispute or difference without anything more pursuant to which if the wife commits suicide that will not attract Section 306 IPC.

19. He contended that from scrutiny of the evidences of the prosecution witnesses, it appears that no case under Section 498A IPC has been made out against the accused appellants as there is nothing in the evidence of P.Ws. that what amount was demanded by the accused appellant No. 1. In absence of specific evidence regarding demand for dowry mere harassment and negligence to the victim itself would not constitute cruelty and if a case under Section 498A IPC fails then the case under Section 306 IPC will automatically fail because there is absolutely no evidence of abatement of suicide. In support of the aforesaid submission, the case of Girdhar Shankar Tawade v. State of Maharashtra reported in MANU/SC/0361/2002 was relied on.

20. He also contended that even though there was no independent corroboration as required for establishing a case under Section 498A IPC. i.e., demand of dowry, the learned trial Court convicted the accused appellants under Section 498A IPC, which is liable to be set aside on the ground that when the learned trial Court disbelieved one part of the prosecution case, believed other part of it. According to him, either a witness should be believed as a whole or should not be believed at all. Court cannot believe a witness for one purpose and disbelieve for another purpose.

21. Zeba Islam Siddiqui, learned counsel for State has submitted that torture of the deceased was continuous and demand of dowry was also all along as would be evident from the statement of the sister and brother of the deceased. It has been stated by the witnesses and family members that the victim was consistently subjected to mental torture by the appellant and it has become the habitual attitude of the appellant to torture her.

22. As it appears from the submission of the learned Counsel for the parties the allegation against the appellants was mainly that the victim deceased was harassed by the members of her in-laws including her husband, appellant as she failed to fulfil the demand of dowry as made by them. Hence, it is necessary firstly to consider what is the meaning of “cruelty” and “dowry” as well the meaning of “abetment” as there is also the allegation of abetment for suicide.

“Cruelty” – By explanations (a) and (b) of Section 498A of IPC cruelty has been defined as:

(a) “Any willful conduct which is of such 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 women where such harassment is with a view of 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.

“Dowry” – Dos muliers. Lat” otherwise called maritagium, or marriage goods, that which the wife brings to the husband in marriage. This word should not be founded with dower – Co. Litt 31. Wharton’s Law Lexicon.

The definition of ‘dowry’ will also be available in Section 2 of the Dowry (Prohibition) Act, 1961. In common parlance, dowry means where the husband or his relations demand valuable security from the parents and other relations of the wife after the marriage.

11. In Satvir Singh v. State of Punjab MANU/SC/0588/2001, the Hon’ble Apex Court considered the definition of “dowry” as defined under Section 2 of the Dowry Prohibition Act, 1961, with reference to the offence under Section 304B of the I.P.C., and held that it should be any property or valuable security given or agreed to be given in connection with the marriage, Customary gift or payment in connection with birth of child or other ceremonies unrelated to the marriage ceremony, held, do not fall within the ambit of “dowry”.

The relevant para No. 21 of the judgment reads as under:

21. Thus, there are three occasions related to dowry. One is before the marriage, second is “at any time” after the marriage. The third occasions 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.

12. In K. Prema S. Rao v. Ydla Srinivasa Rao MANU/SC/0890/2002, the Hon’ble Apex Court considered the definition of “dowry” in the context of offence under Section 304A, I.P.C., along with Section 113B of the Evidence Act and held that one of the key ingredients of the offence is that deceased must have been subjected to cruelty and harassment “in connection with the demand for dowry” shortly before her death. Para 16 of the judgment reads as under:

16. The evidence which has been found acceptable by the Courts below against accused I 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 304B, I.P.C., 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 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 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 304B, I.P.C.

13. In Appasaheb and Anr. v. State of Maharashtra MANU/SC/7002/2007 : 2007 (1) Crimes 110 : AIR 2007 SC 763 (SC), there Lordships of the Hon’ble Supreme Court considered the similar point in the context of offence under Section 304B, I.P.C. with the meaning of “dowry” as defined under Section 2 of the Dowry Prohibition Act, 1961, and held that 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. 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 as the said word is normally understood. Para 9 of the judgment reads as under:

9. Two essential ingredients of Section 304B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman 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 304B, 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:

(b) By the parent of either party to a marriage or by any other person to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

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. MANU/SC/0967/1996 : AIR 1996 SC 3509) and Chemical and Fibres of India v. Union of India MANU/SC/0147/1997 : AIR 1997 SC 558). 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 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 304B, IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.

23. In para Nos. 11,12 and 13 in the case of Vikaram Singh v. State of Rajasthan reported in MANU/RH/0018/2007 : 2007 Cri LJ 1622 discussed about the definition of dowry and the same are reproduced hereinunder:

11. In Satvir Singh v. State of Punjab MANU/SC/0588/2001, the Hon’ble Apex Court considered the definition of “dowry” as defined under Section 2 of the Dowry Prohibition Act, 1961, with reference to the offence under Section 304B of the I.P.C., and held that it should be any property or valuable security given or agreed to be given in connection with the marriage, Customary gift or payment in connection with birth of child or other ceremonies unrelated to the marriage ceremony, held, do not fall within the ambit of “dowry”.

The relevant para No. 21 of the judgment reads as under:

21. Thus, there are three occasions related to dowry. One is before the marriage, second is “at any time” after the marriage. The third occasions 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.

12. In K. Prema S. Rao v. Ydla Srinivasa Rao MANU/SC/0890/2002, the Hon’ble Apex Court considered the definition of “dowry” in the context of offence under Section 304A, I.P.C., along with Section 113B of the Evidence Act and held that one of the key ingredients of the offence is that deceased must have been subjected to cruelty and harassment “in connection with the demand for dowry” shortly before her death. Para 16 of the judgment reads as under:

16. The evidence which has been found acceptable by the Courts below against accused I 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 304B, I.P.C., 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 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 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 304B, I.P.C.

13. In Appasaheb and Anr. v. State of Maharashtra MANU/SC/7002/2007 : 2007 (1) Crimes 110 : AIR 2007 SC 763 (SC), there Lordships of the Hon’ble Supreme Court considered the similar point in the context of offence under Section 304B, I.P.C. with the meaning of “dowry” as defined under Section 2 of the Dowry Prohibition Act, 1961, and held that 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. 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 as the said word is normally understood.

24. In Reema Aggarwal v. Anupam MANU/SC/0022/2004 : 2004 AIR SCW 344 : AIR 2004 SC 1418 : 2004 Cri LJ 892, the Apex Court discussed about the definition of term “dowry” under Section 2 of the Dowry Act, which is available in para 14 of the said judgment. Para 14 is reproduced herein under:

14. The definition of the term ‘dowry’ under Section 2 of the Dowry Act shows that any property or valuable security given or, “agreed to be given” either directly or indirectly by one party to the marriage to the other party to the marriage “at or before or after the marriage” as a “consideration for the marriage of the said parties” would become “dowry” punishable under the Dowry Act. Property or valuable security so as to constitute ‘dowry’ within the meaning of the Dowry Act must, therefore, be given or demanded “as consideration for the marriage.

25. Further in para 18 of Reema Aggarwal (supra), the Apex Court dealt with the concept of dowry as well as the aim of the legislation introducing the provision of Section 498A as well as 304B IPC. For better understanding para 18 of the aforesaid judgment is quoted herein under:

18. The concept of “dowry” is intermittently linked with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an issue further legalistic problems do arise. If the validity of the marriage itself is under legal scrutiny, the demand of dowry in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which Sections 498A and 304B, I.P.C. and Section 113-B of the Indian Evidence Act, 1872 (for short the “Evidence Act”) were introduced cannot be lost sight of. Legislations enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively requires to be interpreted with certain element of realism too and not merely pedantically or hyper technically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on, becomes a victim of the greed for money. Can a person who enters into a marital arrangement be allowed to take a shelter behind a smokescreen to contend that since there was no valid marriage the question of dowry does not arise? Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature ‘dowry’ does not have any magic charm written over it. It is that a level given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498A. Legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that Legislature which was conscious of the social stigma attached to children of valid and voidable marriages closed eyes to plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship. If such restricted meaning is given it would not further the legislative intent. On the contrary, it would be against the concerned shown by the Legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to “any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction”. It would be appropriate to construe the expression ‘husband’; to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions Sections 304B/498-A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B, IPC. Such an interpretation, known and recognized as purposive construction has come into play in a case of this nature. The absence of a definition of ‘husband’ to specifically include such persons who contract marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as ‘husband’ is no ground to exclude them from the purview of Section 304B or 498-A, I.P.C. viewed in the context of the very object and aim of the legislations introducing those provisions.

26. The word “abetment” has been defined in Section 107 IPC as under:

107. Abetment of a thing.– A person abets the doing of a thing, who-First.- Instigates any person to do that thing; or

Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.- A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

27. In the case of Ramesh Kumar v. State of Chhattisgarh reported in MANU/SC/0654/2001 : (2001) 9 SCC 618 : AIR 2001 SC 3837 : 2001 Cri LJ 4724 the Apex Court discussed about words and phrases ‘instigation’ and noted that “instigation is to good, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.” Referring the case of Orilal Jaiswal MANU/SC/0321/1994(supra) it is also noted that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide and if it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discoid and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

28. Learned Additional Government Advocate had relied on para 8 of judgment of Hon’ble Supreme Court Maya Devi and others versus State of Haryana Manu/SC/1398/2015 which is as under:-

The key words Under Section 113B of the Evidence Act, 1872 are “shall presume” leaving no option with a court but to presume an accused brought before it of causing a dowry death guilty of the offence. However, the redeeming factor of this provision is that the presumption is rebuttable. Section 113B of the Act enables an accused to prove his innocence and places a reverse onus of proof on him or her. In the case on hand, accused persons failed to prove beyond reasonable doubt that the deceased died a natural death. When Kavita allegedly committed suicide, her husband- Appellant No. 2, though he was not present in the house, was present in his office at M.D. University, Rohtak at the relevant time but he did not make any sincere effort to take her to the hospital which was very near to the place of the incident.

29. Learned counsel for appellant had submitted that the deceased committed suicide and there is nothing on record to show that any demand of dowry was made and she meted out to cruelty or harassment soon before her death. Learned counsel for appellant had further contended that even for the purpose of Section 498-A the evidence is lacking.

30. On the other hand, learned counsel for State had submitted that there is no dispute that Geetu died in her matrimonial home otherwise than under normal circumstances due to burn injuries. Admittedly, there were persistently demands put up by the accused-appellant right from one month after the solemnization of the marriage which continued till the date of death of the deceased. It is further contended that the accused-appellant had maltreated and subjected to cruelty for the fulfilment of their demand for household items and money. It has further been contended that the deceased had regularly and continuously discussed these matters with her sister and brother and this behavioural attitude of the appellant culminated on the date of the death of the deceased would go long way to show that she was harassed, maltreated and was subjected to cruelty soon before her death in connection with the demand of dowry.

31. Learned counsel for State had further submitted that the presumption can be drawn that the burn injuries were caused by appellant and this act might come under the purview of Section 304-B but the court is not entering into the matter because there is no State appeal and none of the counsel has argued on this point. The IPC provides that where the death of a woman is caused by burn or bodily injuries or occurred otherwise than under the 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 in connection with any demand of dowry, such death is punishable under the Act and in presence of above ingredients, the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. However it is open to the accused to adduce such evidence for disproving such conclusive presumption as the burden is unmistakably on him to do so and he can discharge such burden by getting an answer through cross-examination of the prosecution witnesses or by adducing evidence on the defence side. Nothing has been disclosed by the defence to contradict the prosecution witnesses. There is a positive evidence that the purpose of the marriage was to gain some monetary benefit and just after some days of the marriage, the appellant started to demand the dowry and started to harass the deceased which was continuously stated and narrated by the deceased to her brother and sister.

32. As has been mentioned hereinbefore, in order to hold an accused guilty of an offence as charged, it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of her marriage, it has also to be 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. Only then would such death be called “dowry death” and such husband or relative shall be deemed to have caused the death of the woman concerned.

33. The key words Under Section 113B of the Evidence Act, 1872 are “shall presume” leaving no option with a court but to presume an accused brought before it of causing a dowry death guilty of the offence. However, the redeeming factor of this provision is that the presumption is rebuttable. Section 113B of the Act enables an accused to prove his innocence and places a reverse onus of proof on him or her. In the case on hand, accused persons failed to prove beyond reasonable doubt that the deceased died a natural death. When deceased allegedly committed suicide, her husband- Appellant though he was present in the house at the relevant time but he did not make any sincere effort to save her.

34. The presumption under Section 113B of the Act is mandatory may be contrasted with Section 113A of the Act which was introduced contemporaneously. Section 113A of the Act, dealing with abetment of suicide, uses the expression “may presume”. This being the position, a two-stage process is required to be followed in respect of the offence. It is necessary to first ascertain whether the ingredients of the Section have been made out against the accused; if the ingredients are made out, then the accused is deemed to have caused the death of the woman but is entitled to rebut the statutory presumption of having caused a dowry death or abetted for committing suicide. From the evidence on record, I am of the opinion that in the present case she died an unnatural death by committing suicide as she was subjected to cruelty/harassment by her husband in connection with the demand for dowry which started from the time of her marriage and continued till she committed suicide. Thus, the provisions of Sections 306 and 498A of the Indian Penal Code will be fully attracted.

35. The occurrence is reported to be happened in the midnight or after midnight when the husband and wife both were inside the room and it is more within the knowledge of the husband/appellant as to how the incident happened. If husband/appellant residing in the room and something happened with another person, it is presumed that the next person has full knowledge about the incident as to how it occurred. No plausible explanation has been given by the husband as to what he was doing after midnight when the incident of burning took place in which injuries were sustained to the deceased by which she died later on, because she could not be saved by medical treatment. No plausible explanation has been given by the appellant as to whether after the incident of burning he tried his best to save the life partner or what step he had taken after the incident. More than 90% burn injuries reveals that the appellant awaited the 100% burn of clothes and the fire extinguished automatically when everything was burned then she was taken to hospital. Thus, the assessment of the situation and the circumstances under which the incident occurred is sufficient to believe that the accused-appellant had committed the offence intentionally with ulterior motive.

36. In the light of above discussion, this court is of the view that the deceased Geetu suffered death at her matrimonial home otherwise than under normal circumstances within 7 years of marriage and from the evidence of the prosecution witnesses, I find that the harassment of the deceased was with a view to convince her parents to meet the demands for dowry.

37. In light of above facts, the view taken by learned trial court can not be held to a view against the provision of law or against the evidence on record. The contention of the learned counsel for appellant that the trial court failed to exercise proper adjudication and failed to prove the case beyond all reasonable doubt or there are major contradictions has no relevancy at all and are not tenable. The appreciation of the evidence by learned trial court is based on the statement of witnesses with test of reasonability and actual occurrence. There is no infirmity, illegality or irregularity in the impugned order and thus no interference is required in the order impugned. The seriousness of the charges and the manner in which Geetu succumbed to injuries compels the mind of this court to consider on the point of sentence though the learned trial court had considered it and awarded rigorous imprisonment for three years under Section 306 IPC while rigorous imprisonment for one year under Section 498-A IPC and directed to run the sentence concurrently but I am of the view that the sentence to run separately. The appeal lacks merit and deserves to be dismissed. Accordingly the appeal is dismissed.

38. The accused is reported to be in jail. The copy of the judgment with the lower court record be immediately sent to learned Chief Judicial Magistrate Lucknow for compliance of the order as above and to report the registry of this court within one month.

Order Date :- 31.8.2017

prabhat

 

 

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