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Rajesh Rambhau Khankure And 3 … vs State Of Mah.Thr.Pso Wardha on 16 February, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.629 OF 2004

1 Rajesh s/o. Rambhau Khankure,
aged about 30 years,

2 Rambhau s/o. Kisanji Khankure,
aged about 57 years,

3 Sau. Ushabai w/o. Rambhau Khankure,
aged about 45 years,

4 Umesh s/o. Rambhau Khankure,
aged about 24 years,

All residents of Ram Nagar Ward,
Hinganghat, Tah. Hinganghat,
District Wardha …. APPELLANTS

VERSUS

State of Maharashtra,
through Police Station Officer,
Police Station, Hinganghat,
District Wardha …. RESPONDENT

__

Shri M.I. Dhatrak, counsel for the appellants
Shri V. P. Maldhure, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATE OF DECISION : 16.02.2018

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ORAL JUDGMENT :

Challenge is to the judgment and order dated 29.9.2004,

rendered by the 3rd Adhoc Additional Sessions Judge Wardha, in

Sessions Trial 132 of 2002, by and under which, the appellants –

accused are convicted for offence punishable under section 498-A read

with section 34 of Indian Penal Code (IPC) and are sentenced to suffer

rigorous imprisonment for two years and to payment of fine of

Rs. 5000/- each and are further convicted for offence punishable under

section 304-B read with section 34 of the IPC and are sentenced to

suffer rigorous imprisonment for eight years.

2 Heard Shri M.I. Dhatrak, the learned counsel for the

accused and Shri V. P. Maldhure, the learned Additional Public

Prosecutor for the respondent / State.

3 The gist of the prosecution case is thus:-

Deceased Surekha entered into matrimonial alliance with

accused Rajesh on 9.5.2001. Concededly, Surekha suffered burn

injuries on 16.6.2001 and expired at 7.00 a.m. on 17.6.2001. Shri

Anandrao Thakare, the father of deceased (PW 12) lodged oral report

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(Exh 70) at Hinganghat Police Station on 17.6.2001 at 7.30 p.m.. The

gist of which oral report is that deceased Surekha suffered taunts from

accused since she was of sallow complexion. On the basis of the said

report offence punishable under section 498-A, 306 and 304-B of the

IPC was registered at the Hinganghat Police Station. Record reveals,

that the relatives of the deceased Surekha were not satisfied with the

investigation conducted by the Hinganghat police and at their instance

the Criminal Investigation Department(CID) took over the investigation

some time in September 2001. The completion of the investigation led

to submission of the charge sheet in the Court of Judicial Magistrate

First Class, Hinganghat, who committed the proceedings to the

Sessions Court. The learned Sessions Judge framed charge (Exh 15)

for the offence punishable under section 498-A, 304-B read with

section 34 of the IPC. The accused abjured guilt and claimed to be

tried in accordance with law. The trend and tenor of the cross-

examination and the statements recorded under section 313 of the

Criminal Procedure Code reveal that the defence is of total denial.

4 Shri M.I. Dhatrak, the learned counsel for the accused

submits that the prosecution has failed to establish that the possibility

of the accidental death is excluded. Shri Dhatrak invites my attention

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to the admissions attracted in the evidence of the Investigating Officer

(PW 19) Shri Vinod Wankhede, which is to the effect that the

Investigating Officer recorded the statements of Dr. Gupta and Dr.

Khandare on 1.2.2002 and the statements reveal that deceased Surekha

disclosed to Dr. Gupta and Dr. Khandare that she suffered accidental

burns while cooking. Shri M.I. Dhatrak then invites my attention to

injury report Exh. 44 which records alleged history of the injury as

accidental burns due to gas flames. The injury certificate Exh 44

further records that the condition of the patient was stable, conscious,

cooperative and oriented. The submission of the learned counsel is

that the failure of the investigating agency to record the dying

declaration of deceased Surekha, which dying declaration would have

thrown light on the cause of death, is fatal to the prosecution case. The

medical history is admissible in evidence, is the submission. Since the

deceased Surekha was stable, conscious and well oriented, the

possibility of somebody else having narrated the medical history is

remote, is the submission. Shri M.I. Dhatrak, would submit, that even

if, arguendo, it is assumed that the death of Surekha was suicidal, the

prosecution has not established the sine quo non ingredients of offence

punishable under section 498-A or 304(B) of the IPC.

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5 In rebuttal, Shri V.P. Maldhure, the learned Additional

Public Prosecutor would submit that the evidence on record clinchingly

establishes that the deceased was subjected to cruelty within the

meaning of section 498-A of the IPC explanation (a) and (b). The

death concededly occurred within 38 days of the marriage and due to

burns. The cruelty to which the deceased was subjected was in

connection with a dowry demand, is the submission.

6 Section 304-B was introduced in the IPC by Dowry

Prohibition Amendment Act, 1986 with the avowed object of curbing

and eliminating dowry menace. Simultaneously, legislative changes

were effected in the Criminal Procedure Code, 1973 and the Indian

Evidence Act. Section 113-B was introduced in the Indian Evidence Act

and offence punishable under section 304 of IPC was made non-

bailable and triable by Sessions Court by appropriate amendment to the

Criminal Procedure Code.

Section 304-B of the IPC reads thus:

“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

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“dowry death”, and such husband or relative shall be deemed
to have caused her death.

Explanation – For the purposes of this sub-section,
“dowry” shall have the same meaning as in section 2 of the
Dowry Prohibition Act, 1961 (28 of 2961).

(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.”

In view of the explanation to section 304-B which provides that

dowry shall have the same meaning in section 2 of the Dowry

Prohibition Act, 1961, it would be appropriate to reproduce section 2 of

the Dowry Prohibition Act, 1961:

“2. Definition of “dowry” – In this Act, “dowry” means
any property or valuable security given or agreed to be given
either directly or indirectly –

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

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

at or before (of 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 (Sharirat) applies.

Explanation II – The expression “valuable security”
has the same meaning as in section 30 of the Indian Penal
Code (45 of 1860)”

Sub section 113-B of the Indian Evidence Act which provides for

statutory presumption reads thus:

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“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 had been subjected by such person to cruelty or
harassment for, or in connection with, any demand for
dowry, the Court shall presume that such person had caused
the dowry death.

Explanation – For the purposes of this section, “dowry
death”, shall have the same meaning as in section 304-B of
the Indian Penal Code (45 of 1860)”

7 Be it noted, that in contradistinction with the statutory

presumption under section 113-A of the Indian Evidence Act, if the

prosecution establishes the ingredients of section 304-B of the IPC, the

court is obligated to take recourse to the statutory presumption under

section 113-B. The legislative intent that the court has no discretion in

invoking the statutory presumption is manifested by the employment of

expression “shall presume” in section 113-B in contradistinction with

employment of the expression “may presume” in section 113-A of the

Indian Evidence Act.

8 Axiomatically, the statutory presumption under section

113-B of the Indian Evidence Act is activated only if the prosecution

establishes the ingredients of section 304-B IPC beyond reasonable

doubt. The ingredients of section 304-B of the IPC are :

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(i) The death of the woman was caused due to burns,

bodily injury or due to unnatural circumstances.

(ii) The death should be within seven years of marriage.

(iii) It would be shown that soon before death the woman
was subjected to cruelty or harassment by her husband
or any relative of the accused.

(iv) The cruelty or harassment was for or in connection
with any demand of dowry.

Explanation to section 113-A of the Indian Evidence Act clarifies

that for the purposes of section 113-A cruelty shall have the same

meaning as in section 498-A of the IPC. Such an explanation or

clarification is not legislatively provided either in section 304-B of the

IPC or in section 113-B of the Indian Evidence Act. However, it is

judicially recognized that for the purposes of section 304-B of the IPC

and section 113-B of the Indian Evidence Act, the cruelty which the

prosecution is obligated to prove is the cruelty envisaged under section

498-A of the IPC. It would be apposite to refer to the enunciation of

law by the Apex Court in Smt. Shanti and another v. State of

Haryana, AIR 1991 Supreme Court 1226. The relevant observations

of which judgment read thus:-

“6. Now we shall consider the question as to whether the
acquittal of the appellants of the offence punishable
under S. 498-A makes any difference. The submission of

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the learned counsel is that the acquittal under S. 498-A,
IPC would lead to the effect that the cruelty on the part
of the accused is not established. We see no force in this
submission. The High Court only held that S. 304D and
S.498-A IPC, are mutually exclusive and that when once
the cruelty envisaged in S. 498-A IPC culminates in
dowry death of the victim, S. 304-B alone is attracted
and in that view of the matter the appellants were
acquitted under S.498-A IPC. It can therefore be seen
that the High Court did not hold that the prosecution
has not established cruelty on the part of the appellants
but on the other hand the High Court considered the
entire evidence and held that the element of cruelty
which is also an essential of S.304-B IPC has been
established. Therefore the mere acquittal of the
appellants under S.498-A IPC in these circumstances
makes no difference for the purpose of this case.
However, we want to point out that this view of the
High Court is not correct and sections 304-b and 498-A
cannot be held to be mutually exclusive. These
provisions deal with two distinct offences. It is true that
“cruelty” is a common essential to both the sections and
that has to be proved. The Explanation to Section
498-A gives the meaning of “cruelty”. In S.304-B
there is no such explanation about the meaning of
“cruelty” but having regard to the common
background to these offences we have to take that
the meaning of “cruelty or harassment” will be the
same as we find in the explanation to S.498-A
under which “cruelty” by itself amounts to an
offence and is punishable. Under Section 304-B as
already noted, it is the “dowry death” that is punishable
and such death should have occurred within seven years
of the marriage. No such period is mentioned in S.498-A
and the husband or his relative would be liable for
subjecting the woman to “cruelty” any time after the
marriage. Further it must also be borne in mind that a
person charged and acquitted under S. 304-B can be
convicted u/ S.498-A without charge being there, if such
a case is made out. But from the point of view of

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practice and procedure and to avoid technical defects it
is necessary in such cases to frame charges under both
the sections and if the case is established they can be
convicted under both the sections but no separate
sentence need be awarded under S. 498-A in view of the
substantive sentence being awarded for the major
offence under S.304-B.

(Emphasis supplied)

Pivotal issue in the present appeal is whether the prosecution has

proved beyond reasonable doubt that the deceased Surekha was

subjected to cruelty within the meaning of section 498-A of the IPC.

Concededly, Surekha suffered burns and expired within 38 days of the

marriage. If the prosecution establishes that she was subjected to

cruelty within the meaning of section 498-A of the IPC for or in relation

to demand for dowry, the statutory presumption under section 113-B

of Indian Evidence Act would stand activated.

 9                 Section 498-A of the IPC reads thus:-

"498-A. Husband or relative of husband of a woman

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

Explanation - For the purpose of this section, "cruelty"
means-

(a) any wilful conduct which is of such a nature as is

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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 scrutiny or is
on account of failure by her or any person related to her to meet
such demand.)"

For the purposes of section 498-A of the IPC cruelty is statutorily

defined to mean such willful 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) or

harassment, whether the harassment is with a view to coerce the

women or any person related to her to meet any unlawful demand for

any property or valuable security or is on account of failure by the

woman or any other person related to her to meet such demand.

10 It is well settled, and I need not burden the judgment with

the plethora of authorities enunciating the law, that the cruelty which

the prosecution must establish to bring home charge under section

498-A of the IPC is graver than the cruelty which may constitute a

matrimonial offence or which may furnish a ground for claiming relief

under a matrimonial law. Cruelty is statutorily defined. The use of the

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expression willful brings into play an element of mens rea. The willful

conduct must be 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) or harassment, where the harassment is

with a view to coerce the women or any person related to her to meet

any unlawful demand for any property or valuable security or is on

account of failure by the woman or any other person related to her to

meet such demand.

11 Axiomatically, the conduct must be willful, persistent and

continuous. Behavioral aberrations which may constitute cruelty for

the purposes of matrimonial law may not constitute cruelty for the

purposes of section 498-A of the IPC. The explanation (b) of section

498-A taken within its sweep harassment, with a view to coerce the

women or her relatives to fulfill an unlawful demand. The legislative

intent is that the harassment must be actuated by an intention of

coercing the woman or her relatives to fulfill an unlawful demand. The

prosecution is obligated to prove not only that a demand was made but

to further prove that the demand was accompanied by harassment or

illtreatment.

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12 The evidence on record must be tested on the anvil of the

statutory provisions referred to supra.

13 The First Information Report dated 17.6.2001 lodged by

PW 12 Anandrao Thakare, the father of the deceased is conspicuously

silent on any demand for dowry. The First Information Report recites

that the deceased Surekha suffered taunts due to her sallow

complexion and that she apprehended danger to her life from accused.

The prosecution has examined as many as twenty witnesses to bring

home the charge under section 498-A and 304-B of the IPC. The

material witnesses from the perspective of the prosecution are PW 1

Shrirang Kolte, PW 4 Shankare Mule, PW 11 Baynabai Thakre who is

the grandmother of the deceased, PW 12 - Anandrao Thakre, the father

of the deceased, PW 13 Subhadrabai Thakre, the mother of the

deceased, PW 14 Diwakar Thakre, the uncle of the deceased and PW

15 Pinglabai Karkade a friend of the deceased Surekha. The

submission of the learned APP Shri V.P. Maldhure is that testimonies of

these witnesses conclusively establish that the deceased Surekha was

subjected to cruelty and that the cruelty was for or in relation to dowry

demand.

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14 PW 1 Shrirang Kolte is examined to bring on record that

during the marriage settlement talks accused Rambhau demanded gold

chain of 20 grams, a gold ring of 6 grams, clothes of the bridegroom

and expenses for two ST buses. The deposition is that it was thereafter

agreed that PW 12 Anandrao would give to the accused a gold chain of

10 grams and gold ring of 4 grams, expenses of one bus and the clothes

for bridegroom. PW 1 states that when he met Surekha in a marriage

on 29.5.2001, she disclosed that the accused taunted her. PW 1 states

that the disclosure was to the effect that accused Rajesh used to tell

Surekha that her complexion was black and that she was not engaging

in conversation with his friend. Accused Usha used to tell her that she

was not working properly and that accused Rajesh and Rambhau used

to express that they were expecting much more from her father. In the

cross-examination, it is elicited that at the relevant time PW 1 was

working as a police sub inspector. It is elicited that the articles,

ornaments and clothes were traditionally given out of love and

affection and that PW 12 Anandrao Thakare gifted the articles,

ornaments and clothes as per his financial condition.

The statement of PW1 is recorded on 11.2.2002. The CID took

over the investigation on 22.9.2001. The defence was obviously not

alive to the settled position of law that it was necessary to seek an

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explanation from the Investigating Officer as regards the delay in

recording the statement under section 161 of the Code of Criminal

Procedure. (Randhir and others v. State of Punjab, AIR 1973 SC

1409).

The failure of the defence to be alert and alive to the settled

position of law does not however detract from the fact that the undue

delay of 5 months in recording the 161 statement is inexplicable. This

court is conscious of the fact that an explanation was not sought from

the Investigating Officer. However, the 161 statement of most of the

witnesses are recorded in January or February 2002. The CID which

took over the reins of investigation on 22.9.2001 obviously did not

justify the confidence reposed by the complainant on its ability and

competence. The evidence of PW 1 Shrirang Kolte does not take the

case of the prosecution any further. PW 1 Shrirang Kolte does not

speak of any illtreatment or harassment to the deceased Surekha,

connected with any dowry demand. The disclosure said to have been

made by Surekha to the effect that Rajesh and Rambhau were

expecting much more from her father cannot be construed by any

stretch of imagination, as a disclosure that Rajesh or Rambhau

demanded dowry. The only other disclosure is that Rajesh said that

Surekha was of black complexion and was not conversing with his

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friend and Usha said that Surekha was not working properly.

15 The evidence of PW 4 Shankar Muley is of no assistance to

the prosecution to prove illtreatment or harassment since the

deposition is that when PW 4 Shankar Muley inquired from Surekha

about her marital life, she said nothing since she was with her husband

Rajesh.

16 PW 11 Bayanabai is the grandmother of the deceased

Surekha. She states that when the deceased and her husband Rajesh

visited Nagbhid to attend a marriage, they were invited for tea by the

elder daughter of Bayanabai. Deceased Surekha conversed with the

witness in the kitchen, accused Rajesh was in the sitting room and the

deceased Surekha who was weeping, disclosed that the accused were

troubling her by saying that Surekha's parents did not give proper

clothes and did not pay the fare of one ST bus. In the cross-

examination every material statement in the examination in chief is

brought on record as an omission. The omissions are duly proved in

the evidence of the Investigating Officer PW 19. The statement of PW

11 Bayanabai is recorded on 16.1.2002. The evidence of PW 11

Bayanabai must be discarded since the entire evidence on the

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disclosure made by the deceased Surekha is omission partaking the

character of contradiction.

17 PW 12 Anandrao Thakare is the father of the deceased and

the informant. I have noted supra, that the First Information Report

(Exh. 106) makes no reference to any unlawful demand much less

unlawful demand accompanied by harassment or illtreatment. The

report speaks of taunts due to the sallow complexion of the deceased

Surekha. PW 12 Anandrao states that deceased Surekha and accused

Rajesh came to Nagbhid on 28.5.2001 to attend the marriage of

Madhuri, daughter of the cousin brother of PW 12. Surekha disclosed

that the accused were complaining about the quality of the clothes

gifted to the bridegroom, deceased Surekha also disclosed that accused

Rajesh was saying that her complexion is black and was troubling her.

She also expressed an apprehension that her life might be in danger, is

the deposition. In the cross-examination, it is suggested to PW 12 that

the accused are falsely implicated since there was a verbal altercation

between PW 12 and the accused on the occasion of 'Satyanarayan

Puja". The suggestion is denied. The rest of the cross-examination

endeavors to bring into focus that the statements in the examination in

chief are absent in the First Information Report which renders the

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reliability and credibility of the evidence suspect.

18 PW 13 Subhadra Thakare, is the mother of the deceased

who has deposed that Surekha disclosed to her that accused Rambhau

threatened her that she should bring dowry of Rs.50,000/-. The

version of PW 13 that Surekha disclosed a dowry demand is not

supported by any other prosecution witness. PW 13 has deposed that

according to Surekha she was scolded and taunted in her matrimonial

home. Her husband Rajesh used to tell her that she was black in

complexion and was dumb. She disclosed that accused Rajesh was

complaining about the cost of the dress, the value of the gold chain and

ring. PW 13 has further deposed that Surekha disclosed to her that

accused Usha criticized her manner of speaking and behavior and the

ability to do household work and questioned her culinary skills. PW 13

states that Surekha also disclosed that accused Rajesh beat her. In the

next breath PW 13 states that the accused, with common intention,

burnt Surekha. In the cross-examination, several omissions are

brought on record, some of which are proved in the evidence of PW 18

PSI Balakdas Patil. The endeavor in the cross-examination was to

demonstrate that every material and significant statement is an

omission. Consideration of the evidence of the scribe of the 161

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statement PW 18 would reveal that although the submission of the

defence is not entirely correct, PW 17 has indeed indulged in

improvements and exaggeration. The evidence that Surekha disclosed

that Rs.50,000/- was demanded as dowry, that she was beaten, that

her mother in law criticized her culinary skills and ability to do

household work, that accused Umesh taunted her and complaint that

no dowry was received are omissions which is duly proved in the

evidence of PW 18.

19 PW 14 Diwakar Thakare, the uncle of the deceased has

deposed that he met Surekha on 30.5.2001 and during the said

meeting Surekha disclosed that her husband was taunting her which

caused irritation. Deceased Surekha disclosed that her husband was

complaining as regards the ornaments and the quality of the clothes, is

the deposition. In the cross-examination, it is brought on record that

every material and significant statement in the examination in chief is

an omission vis-a-vis the 161 statement recorded on 17.6.2001. The

omissions are duly proved in the evidence of PW 18 Shri Patil.

20 PW 15 Pinglabai Karkade, a friend of the deceased was

examined to bring on record that when the deceased came to Nagbhid

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on 27.5.2001, she visited the house of PW 15 on 29.5.2001 and

disclosed that her husband was calling her black and that the other

inmates of the matrimonial home were complaining that the dowry

paid was less. PW 15 states that it was disclosed to her by her friend

Surekha that Ushabai criticized her culinary skills and that Rajesh and

Umesh were complaining about her ability to converse. Every

significant statement in the examination in chief is an omission which

is duly proved in the evidence of PW 19. In the teeth of evidence on

record, the finding recorded by the learned Sessions Judge that the

prosecution has proved offence punishable under section 304-B is

clearly sustainable. The prosecution has not established that dowry

was demanded much less that the deceased was illtreated or harassed

for or in connection with dowry demand. The common thread which

runs through the evidence of the prosecution witnesses is that the

accused were not satisfied with either jewellery or quality of clothes or

the amount of bus fare which were, according to the prosecution, the

terms agreed during the marriage negotiations. Demand for dowry

must be strictly proved. Expression of dis-satisfaction can not be

construed as a demand for dowry. The prosecution witnesses, as a fact,

admit that the jewellery and articles were presented as a tradition and

as would suit the financial capacity of PW 12 Anandrao. The only

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witness who speaks of a dowry demand is PW 13 Subhadra who speaks

of a disclosure made by the deceased Surekha that Rs. 50,000/- was

demanded as dowry. No other prosecution witnesses corroborates the

version of PW 13 that Rs. 50,000/- was demanded as dowry. The

learned counsel for the accused is more than justified in the submission

that even if the evidence is taken at face value, offence punishable

under section 304 part B of IPC is not made out since the demand for

or in connection with dowry is not established. The accused are

entitled to be acquitted for offence punishable under section 304-B of

the IPC.

21 It is already recorded supra, that the statements of most of

the prosecution witnesses have been recorded belatedly. In the

backdrop of the First Information Report being totally silent on the

causes and motive for the illtreatment or harassment other than stating

that Surekha was taunted in view of her sallow complexion, the fact

that 161 statements are recorded more than six months after the death

assumes significance.

22 The evidence of the prosecution witnesses is entirely

predicated on the disclosure made by the deceased Surekha. Since this

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court has recorded a finding that offence punishable under section

304-B of the IPC is not made out, what is left for consideration is

offence punishable under section 498-A of the IPC. Cause of death or

circumstances of the transaction leading to death is no longer in issue.

The verbal statements of the deceased Surekha are not admissible in

evidence under section 32(1) of the Indian Evidence Act since for the

purposes of section 498-A cause of death is not a issue. It would be

apposite to refer to the following observations of the Apex Court in

Bhairon Singh Vs. State of Madhya Pradesh, 2010 ALL SCR 213:

"3. The legal position relating to the admissibility of
evidence under section 32(1) has come up for consideration
before this court time and again. It is not necessary to
multiply the authorities in this regard as reference to a
three-Judge Bench decision of this court in Sharad
Birdhichand Sarda Vs. State of Maharashtra, (1984)4 SCC
116:[2009 ALL SCR(O.C.C.) 281], will suffice. Regarding
the application of rule under section 32(1) Evidence Act,
Fazal Ali, J. culled out the legal position as follows:

"(1) Section 32 is an exception to the rule of hearsay
and makes admissible the statement of a person who dies,
whether the death is a homicide or a suicide, provided the
statement relates to the cause of death, or exhibits
circumstances leading to the death. In this respect as
indicated above, the Indian Evidence Act, in view of the
peculiar condition of our society and the diverse nature and
character of our people, has thought it necessary to widen
the sphere of Section 32 to avoid injustice.

(2) The test of proximity cannot be too literally
construed and practically reduced to a cut-and-dried formula
of universal application so as to be confined in a straitjacket.

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23 apeal629of04

Distance of time would depend or vary with the
circumstances of each case. For instance, where death is a
logical culmination of a continuous drama long in process
and is, as it were, a finale of the story, the statement
regarding each step directly connected with the end of the
drama would be admissible because the entire statement
would have to be read as an organic whole and not torn
from the context. Sometimes statements relevant to or
furnishing an immediate motive may also be admissible as
being a part of the transaction of death. It is manifest that
all these statements come to light only after the death of the
deceased who speaks from death. For instance, where the
death takes place within a very short time of the marriage or
the distance of time is not spread over more than 3-4 months
the statement may be admissible under Section 32.

(3) The second part of clause (1) of Section 32 is
yet another exception to the rule that in criminal law the
evidence of a person who was not being subjected to or given
an opportunity of being cross-examined by the accused,
would be valueless because the place of cross-examination is
taken by the solemnity and sanctity of oath for the simple
reason that a person on the verge of death is not likely to
make a false statement unless there is strong evidence to
show that the statement was secured either by prompting or
tutoring.

(4) It may be important to note that Section 32 does
not speak of homicide alone but includes suicide also, hence
all the circumstances which may be relevant to prove a case
of homicide would be equally relevant to prove a case of
suicide.

(5) Where the main evidence consists of statements
and letters written by the deceased which are directly
connected with or related to her death and which reveal a
tell-tale story, the said statement would clearly fall within
the four corners of Section 32 and, therefore, admissible. The
distance of time alone in such cases would not make the
statement irrelevant."

4. Varadarajan, J. on the other hand referred to the legal
position stated by Woodroffe and Amir Ali in their Law of

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24 apeal629of04

Evidence,(fourteenth edition) and Ratanlal and Dhirajlal in
their Law of Evidence (1982 Reprint). This is how A.
Varadarajan, J. dealt with the admissibility of evidence
under Section 32(1):(Sharad case, SCC pp. 206-08, Para

202)
"202.......The position of law relating to the
admissibility of evidence under Section 32(1) is well settled.
It is, therefore, not necessary to refer in detail to the
decisions of this Court or of the Privy Council or our High
Courts. It would suffice to extract what the learned authors
Woodroffe and Amir Ali have stated in their Law of Evidence,
Fourteenth Edn. and Ratanlal and Dhirajlal in their Law of
Evidence (1982 Reprint). Those propositions are based
mostly on decisions of courts for which reference has been
given at the end. They are these:

Woodroffe and Amir Ali's Law of Evidence, Fourteenth
Edn.:

'Page 937:

Hearsay is excluded because it is considered not
sufficiently trustworthy. It is rejected because it lacks the
sanction of the test applied to admissible evidence, namely,
the oath and cross- examination. But where there are special
circumstances which give a guarantee of trustworthiness to
the testimony, it is admitted even though it comes from a
second-hand source.

Page 941
What is relevant and admissible under clause (1) of
this section (Section 32) is the statement actually made by
the deceased as to the cause of his death or of the
circumstances of the transaction which resulted in his death.
Page 945-946:

A statement must be as to the cause of the declarant's
death or as to any of the circumstances of the transaction
which resulted in his death i.e. the cause and circumstances
of the death and not previous or subsequent transaction,
such independent transactions being excluded as not falling
within the principle of necessity on which such evidence is
received. When a person is not proved to have died as a
result of injuries received in the incident in question, his
statement cannot be said to be a statement as to the cause of

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25 apeal629of04

his death or as to any of the circumstances which resulted in
his death. Where there is nothing to show that the injury to
which a statement in the dying declaration relates was the
cause of the injured person's death or that the circumstances
under which it was received resulted in his death, the
statement is not admissible under this clause.
Page 947:

Circumstances of the transaction resulting in his
death: This clause refers to two kinds of statements: (i) when
the statement is made by a person as to the cause of his
death, or (ii) when the statement is made by a person as to
any of the circumstances of the transaction which resulted in
his death. The words "resulted in his death" do not mean
"caused his death". The expression "any of the circumstances
of the transaction which resulted in his death" is wider in
scope than the expression "the cause of his death". The
declarant need not actually have been apprehending death.
Page 947:

The expression "circumstances of the transaction"
occurring in Section 32, clause (1) has been a source of
perplexity to courts faced with the question as to what
matters are admissible within the meaning of the expression.
The decision of Their Lordships of the Privy Council in
Pakala Narayana Swami v. Emperor (AIR 1939 PC 47) sets
the limits of the matters that could legitimately be brought
within the purview of that expression. Lord Atkin, who
delivered the judgment of the Board, has, however, made it
abundantly clear that, except in special circumstances no
circumstance could be a circumstance of the transaction if it
is not confined to either the time actually occupied by the
transaction resulting in death or the scene in which the
actual transaction resulting in death took place. The special
circumstance permitted to transgress the time factor is, for
example, a case of prolonged poisoning, while the special
circumstance permitted to transgress the distance factor is,
for example, a case of decoying with intent to murder.... But
the circumstances must be circumstances of the transaction
and they must have some proximate relation to the actual
occurrence.

Page 948:

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26 apeal629of04

"Circumstances of the transaction" is a phrase no
doubt that conveys some limitations. It is not as broad as the
analogous use in "circumstantial evidence" which includes
the evidence of all relevant factors. It is on the other hand
narrower than `res gestae'. Circumstances must have some
proximate relation to the actual occurrence, though, as for
instance, in the case of prolonged poisoning they may be
related to dates at a considerable distance from the date of
actual fatal dose.

Page 948:

The Supreme Court in the case of Shiv Kumar v. State
of U.P.{1966 Cri.App.R (SC) 281} has made similar
observations that the circumstances must have some
proximate relation to the actual occurrence, and that general
expressions indicating fear or suspicion, whether of a
particular individual or otherwise and not directly to the
occasion of death will not be admissible.
Page 949:

The clause does not permit the reception in evidence of
all such statements of a dead person as may relate to matters
having a bearing howsoever remote on the cause or the
circumstances of his death. It is confined to only such
statements as relate to matters so closely connected with the
events which resulted in his death that may be said to relate
to circumstances of the transaction which resulted in his
death. "Circumstances of the transaction which resulted in
his death" means only such facts or series of facts which have
a direct or organic relation to death. Hence statement made
by the deceased long before the incident of murder is not
admissible.

[1974 Cri LJ 1200 (MP).] Law of Evidence by Ratanlal and
Dhirajlal (1982 Reprint)
"Page 94:

Circumstances of the transaction - General expressions
indicating fear or suspicion whether of a particular
individual or otherwise and not directly related to the
occasion of the death are not admissible.
Page 95:

Circumstances must have some proximate relation to
the actual occurrence and must be of the transaction which

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27 apeal629of04

resulted in the death of the declarant. The condition of the
admissibility of the evidence is that the cause of the
declarant's death comes into question. It is not necessary that
the statement must be made after the transaction has taken
place or that the person making it must be near death or
that the `circumstance' can only include the acts done when
and where the death was caused....Dying declarations are
admissible under this clause.'"

11. The only evidence to bring home charge under Section
498A, IPC, is that of PW-4 and PW-5. In their deposition
PW-4 and PW-5 stated that their sister told them that
accused was torturing her as he wanted that her brothers
should arrange a job for him or the house at Ganj Basoda is
given to him or a cash of Rs.1 lac is given to enable him to
do some business. They deposed that as and when their sister
come to their house, she would tell them that accused used to
insert cloth in her mouth and give beatings for dowry.

12. The trial court as well as the High Court relied on the
evidence of PW-4 and PW-5 and held that charge under
Section 498A, IPC, against the accused was proved. Apart
from the statement attributed to the deceased, none of the
witnesses had spoken anything which they had seen directly
insofar as torture and harassment to Ranjana Rani @ Raj
Kumari was concerned.

13. The moot question is: whether the statements
attributed to the deceased could be used as evidence for
entering upon a finding that the accused subjected Ranjana
Rani @ Raj Kumari to cruelty as contemplated under Section
498A, IPC.

14. In our considered view, the evidence of PW-4 and PW-
5 about what the deceased Ranjana Rani @ Raj Kumari had
told them against the accused about the torture and
harassment is inadmissible under Section 32(1) of the
Evidence Act and such evidence cannot be looked into for any
purpose.

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28 apeal629of04

15. Except Section 32(1) of the Indian Evidence Act, there
is no other provision under which the statement of a dead
person can be looked into in evidence. The statement of a
dead person is admissible in law if the statement is as to the
cause of death or as to any of the circumstance of the
transactions which resulted in her death, in a case in which
the cause of death comes into question. What has been
deposed by PW-4 and PW-5 has no connection with any
circumstance of transaction which resulted in her death.

16. The death of Smt. Ranjana Rani @ Raj Kumari was
neither homicidal nor suicidal; it was accidental. Since for
an offence under Section 498A simpliciter, the question of
death is not and cannot be an issue for consideration, we are
afraid the evidence of PW-4 and PW-5 is hardly an evidence
in law to establish such offence. In that situation Section
32(1) of the Evidence Act does not get attracted.

17. We are fortified in our view by the decision of this
Court in Inderpal vs. State of M.P., wherein this Court
considered the matter thus SCC pp.738-39, paras 4-7):

"4. We will consider at first the contention as to
whether there is any evidence against the appellant which
can be used against him for entering upon a finding that he
subjected Damyanti to cruelty as contemplated in Section
498-A IPC. PW 1 father of the deceased and PW 8 mother of
the deceased have stated that Damyanti had complained to
them of her plight in the house of her husband and
particularly about the conduct of the appellant. PW 4 sister
of the deceased and PW 5 a relative of the deceased have also
spoken more or less on the same line. Exhibit P-7 and Exhibit
P-8 are letters said to have been written by Damyanti. In
those two letters reference has been made to her life in the
house of her in-laws and in one of the letters she said that
her husband had subjected her to beating.

5. Apart from the statement attributed to the deceased
none of the witnesses had spoken of anything which they had
seen directly. The question is whether the statements
attributed to the deceased could be used as evidence in this
case including the contents of Exhibits P-7 and P-8 (letters).

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29 apeal629of04

6. Before deciding that question we have to point out
that the High Court came to a conclusion that the allegation
that she committed suicide was not substantiated. A dying
declaration was recorded by the Executive Magistrate in
which the deceased had stated that she got burns
accidentally from a stove. If that be so, death could not be
the result of either any harassment or any cruelty which she
was subjected to. In this context we may point out that the
State has not challenged the finding of the High Court that
death of Damyanti was not due to commission of suicide.

7. Unless the statement of a dead person would fall
within the purview of Section 32(1) of the Indian Evidence
Act there is no other provision under which the same can be
admitted in evidence. In order to make the statement of a
dead person admissible in law (written or verbal) the
statement must be as to the cause of her death or as to any
of the circumstances of the transactions which resulted in her
death, in cases in which the cause of death comes into
question. By no stretch of imagination can the statements of
Damyanti contained in Exhibit P-7 or Exhibit P-8 and those
quoted by the witnesses be connected with any circumstance
of the transaction which resulted in her death. Even that
apart, when we are dealing with an offence under Section
498-A IPC disjuncted from the offence under Section 306,
IPC the question of her death is not an issue for
consideration and on that premise also Section 32(1) of
the Evidence Act will stand at bay so far as these materials
are concerned."

23 The precedents on proposition that when the only offence

left to be considered is 498-A of the IPC, the disclosures made by the

deceased are not admissible in evidence, can be multiplied. Suffice it

to refer to only one of the several judgments of the Apex Court in

Kantilal Martaji Pandor vs. State of Gujarat and another reported in

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30 apeal629of04

(2013) 8 SCC 781 are also relevant:

17. The question that we have, therefore, to decide is
whether the Court could have arrived at this finding that the
appellant has starved the deceased and committed various
acts of mental cruelty towards the deceased only on the basis
of the contents of the letter dated 26.03.1992 written by the
deceased to the Police Station. The letter written by the
deceased on 26.03.1992 could be relevant only under Section
32(1) of the Evidence Act, 1872, which provides that a
statement, written or verbal, of relevant facts made by a
person who is dead, is relevant when the statement is made
by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death,
in cases in which the cause of that person's death comes into
question. The High Court in the present case has already
held that the appellant was not guilty of abetting the suicide
of the deceased and was, therefore, not guilty of the offence
under Section 306, IPC. As the cause of the death of the
deceased is no more in question in the present case, the
statements made by the deceased in the letter dated
26.03.1992 to the Police Station cannot be taken to be proof
of cruel acts committed by the appellant for the purpose of
holding him guilty under Section 498-A, IPC.

18. For taking this view, we are supported by the decision
of this Court in Inderpal v. State of m.P. In this case,
Inderpal was charged and tried for the offence under Section
306, IPC, and convicted by the trial court for the said offence
of abetment of suicide. In the appeal filed by Inderpal, the
High Court found that the offence under Section 306 IPC,
was not made out as it could not be held that death of the
deceased was due to commission of suicide, but the High
Court held the appellant guilty of the offence under Section
498-A, IPC. This finding of the High Court was based on the
evidence of the father, mother, sister and another relative of
the deceased who deposed on the basis of inter alia the two
letters (Exhibits P-7 and P-8) written by the deceased
Damyanti that Inderpal, her husband, had subjected her to
beating. This Court found that apart from the statement

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31 apeal629of04

attributed to the deceased, none of the witnesses had spoken
of anything which they had seen directly and the question
that this Court had to decide was whether the statement
attributed to the deceased could be used as evidence
including the contents of Exts.P-7 and P-8 and this Court
held that the contents of Exts. P-7 and P-8 written by the
deceased could not be treated as proof of the acts of cruelty
by Inderpal for the purpose of offence under Section 498-A
IPC. The reasons given by this Court in paragraph 7 of the
judgment as reported in the SCC are as follows (Inderpal
case, SCC p. 739):

"7. Unless the statement of a dead person would fall within
the purview of Section 32(1) of the Evidence Act there is no
other provision under which the same can be admitted in
evidence. In order to make the statement of a dead person
admissible in law (written or verbal) the statement must be
as to the cause of her death or as to any of the circumstance
of the transactions which resulted in her death, in cases in
which the cause of death comes into question. By no stretch
of imagination can the statements of Damyanti contained in
Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses
be connected with any circumstance of the transaction which
resulted in her death. Even that apart, when we are dealing
with an offence under Section 498-A IPC disjuncted from the
offence under Section 306 IPC the question of her death is
not an issue for consideration and on that premise also
Section 32(1) of the Evidence Act will stand at bay so far as
these materials are concerned."

24 In the light of the enunciation of law by the Apex Court,

there is absolutely no admissible evidence to bring home the charge

under section 498-A of the IPC. Even if arguendo, the verbal

statements are considered, the disclosures does not establish

illtreatment or harassment of the nature and extent, willfully meted

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32 apeal629of04

out, as is likely to drive deceased Surekha to commit suicide or to cause

grave injury or danger to life, limb or health (whether mental or

physical) or harassment, where the harassment is with a view to coerce

the women or any person related to her to meet any unlawful demand

for any property or valuable security or is on account of failure by the

woman or any other person related to her to meet such demand.

Explanation (b) of section 498-A of the IPC is not attracted since the

evidence on demand is virtually non-existent. It is most unfortunate

that Surekha left for heavenly abode within 37 days of the marriage.

The cause of death is blurred. The investigation is not only unfair but

is dishonest. The failure of the prosecution to examine the two doctors

to whom Surekha disclosed that she suffered accidental burns while

cooking is suggestive of dishonesty. The failure to examine the two

doctors may or may not be attributed to inefficiency or incompetence of

the CID. However, the fact that the defence made no effort to examine

Dr. Gupta and Dr. Khandare despite the history of injury recorded in

Exh. 44 and the categorical admission of the Investigating Officer,

surely reflects poorly on the defence. I refrain from making any further

observations. In the light of the discussion supra, I pass following

order:

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                                            33                                        apeal629of04

(i) The judgment and order impugned is unsustainable and is

set aside.

(ii) The accused are acquitted of offence punishable under

section 498-A and 304-B of the IPC.

(iii) The bail bonds of the accused shall discharged. Fine paid

by the accused, if any, shall be refunded.

(iv) The appeal is allowed.

JUDGE

RSB

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