Bombay High Court H vs * The State Of Maharashtra on 3 July, 2013Bench: Naresh H. Patil, A.I.S. Cheema
1 Appeal 311 & 395 of 1998 IN THE HIGH COURT OF JUDICATURE AT BOMBAY rt
BENCH AT AURANGABAD
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Criminal Appeal No.311 of 1998 1) Ramkishan Digambar Jadhav, ] Age 25 years, ] Occupation : Education. ] C
]
2) Digambar Narba Jadhav, ] Age 55 years, ] Occupation : Agriculture. ] h
]
3) Venkat s/o Digambar Jadhav, ] ig
Age 30 years
Occupation : Agriculture.
]
]
]
H
All residents of Ransoyegaon, ] Taluka Biloli, District Nanded. ] .. Appellants. Versus
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* The State of Maharashtra. ] .. Respondent. ba
——–
Shri. S.S. Bora, Advocate, for the appellants. om
Smt. A.V. Gondhalekar, Additional Public Prosecutor, for the respondent.
——–
B
With
Criminal Appeal No.395 of 1998 * The State of Maharashtra, ] At the instance of complainant ] Narayan Dhage, ] R/o Ghungarala, ] Taluka Biloli, District Nanded. ] … Appellant. ::: Downloaded on – 27/08/2013 21:03:02 ::: 2 Appeal 311 & 395 of 1998 Versus
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1) Ramkishan Digambar Jadhav, ] ou
Age 25 years, ] Occupation : Education. ] ]
2) Digambar Narba Jadhav, ] Age 55 years, ] C
Occupation : Agriculture. ] ]
3) Tejabai w/o Digambar Jadhav, ] Aged 50 years, ] h
Occupation : Household. ] ]
4)
ig
Sunita w/o Ganpat Kamble,
Age 20 years,
]
]
Occupation: Household. ] H
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5) Venkat s/o Digambar Jadhav, ] Age 30 years, ] Occupation : Agriculture. ] ]
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6) Girjabai w/o Venkati Jadhav, ] Age 25 years, ] ba
Occupation : Household. ] ]
All residents of Ran-Sugaon, ] Taluka Biloli, District Nanded. ] .. Respondents. om
——-
Smt. A.V. Gondhalekar, Additional Public Prosecutor, for the appellant – State of Maharashtra. B
Shri. S.S. Bora, Advocate, for the respondents. ——-
CORAM: NARESH H PATIL & A.I.S. CHEEMA, JJ.
::: Downloaded on – 27/08/2013 21:03:02 ::: 3 Appeal 311 & 395 of 1998 Judgment reserved on : 11th June 2013. rt
Judgment pronounced on : 03rd July 2013. ou
JUDGMENT: (Per Naresh H Patil, J.) C
1) The appellants were charged and tried for offence punishable under sections 498-A, 302 and 304-B h
read with section 34, Indian Penal Code, in Sessions Case ig
No.23 of 1996 before the Additional Sessions Judge, Biloli, District Nanded. By judgment and order dated 21st H
September 1998 the trial Court convicted appellants- accused No.1 Ramkishan, accused No.2 Digambar and y
accused No.5 Venkat for offences punishable under ba
sections 498-A and 304-B read with section 34 of the Indian Penal Code, 1860 and sentenced to suffer rigorous om
imprisonment for a period of seven years for offence punishable under section 304-B read with section 34, Indian Penal Code and to suffer rigorous imprisonment for B
a period of one year and to a fine of Rs.500/- each, in default, to suffer rigorous imprisonment for one month each, for offence punishable under section 498- A read with section 34, Indian Penal Code. The substantive sentences were directed to run concurrently. The original ::: Downloaded on – 27/08/2013 21:03:02 ::: 4 Appeal 311 & 395 of 1998 accused Nos.1 to 6 were acquitted of the offence rt
punishable under section 302 read with section 34, Indian ou
Penal Code. The original accused Nos.3,4 and 6 were acquitted of the offences punishable under sections 498A, C
304B read with section 34 Indian Penal Code. 2) The prosecution case, in brief, is that :– h
3)
ig
Accused No.1 Ramkishan Digambar Jadhav is husband of deceased Vimalbai and original accused No.2 H
and 3 are father and mother respectively of accused No.1. Original accused Nos.4 and 5 are sister and brother y
respectively of accused No.1 and original accused No.6 is ba
wife of accused No.5. The prosecution case is that in furtherance of their common intention the accused om
subjected deceased Vimalbai to cruelty in order to meet their unlawful demand of television, deck, one plot in B
MIDC area at village Ghungrala and cash of Rs.50,000/-. The prosecution case further reveals that after the marriage the accused treated deceased Vimalbai properly for two months. Thereafter Vimalbai was sent to her parental home. At that time she disclosed to the ::: Downloaded on – 27/08/2013 21:03:02 ::: 5 Appeal 311 & 395 of 1998 complainant Narayan (her brother) that all the accused rt
persons were demanding her to bring cash of Rs.50,000/- ou
and other articles. The deceased was weeping while disclosing this to her parents. The complainant had given C
her understanding that all the demands could not be fulfilled at one and the same time but one after another he h
would take care to fulfill the demands. After consoling the ig
deceased she was taken to her matrimonial house by the complainant. The complainant Narayan had given H
understanding to the accused No.1 and other persons residing in the house.
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ba
4) On 12th January 1996 the complainant Narayan brought Vimalbai on “Sankrant” festival to his house. Even om
at that time the deceased had disclosed to the complainant and her parents that the accused were repeatedly asking her to bring Rs.50,000/- and other B
articles. The accused were beating her and were not providing food to her. She even disclosed that on one occasion she was tied with a rope by the accused and lunge in a well and she was threatened that if their demand is not fulfilled they will kill her. The complainant ::: Downloaded on – 27/08/2013 21:03:02 ::: 6 Appeal 311 & 395 of 1998 had called accused No.1 Ramkishan at village Ghungrala rt
in presence of one Sambhaji Turatwar, who was mediator ou
in the settlement of marriage. The complainant informed that he would arrange for money and plot as demanded C
but the accused should not give ill treatment to deceased Vimalbai. Thereafter the deceased was sent to her h
matrimonial home.
ig
5) On 1-2-1996 at about 01.00 a.m. the accused H
No.1-Ramkishan came to the house of the complainant Narayan and informed him and other family members y
that Vimalbai was getting convulsions and she was taken ba
for treatment to Naigaon. On hearing so, the complainant- Narayan, his father Ramrao, mother Anjanabai, brother- om
Chandraprakash and other persons of village namely, Vaijnath, Sambhaji and Mahajan proceeded towards Naigaon in a jeep. They saw near the field of one Udhav B
Sawarkar a bullock cart. They found Vimalbai lying dead in the bullock cart, blood was oozing through her nose, her throat was swollen and there were abrasions on her right fingers. These persons took Vimalbai to the Naigaon Hospital. The doctor examined and declared her dead. A ::: Downloaded on – 27/08/2013 21:03:02 ::: 7 Appeal 311 & 395 of 1998 report came to be lodged by the complainant Narayan rt
against the accused on 1-2-1996 at 12.25 p.m. at Police ou
Station Naigaon. The crime was accordingly registered. The prosecution case further suggests that prior to C
lodging of the complaint by the complainant, accused No.1 Ramkishan had given an application to the police station h
on 1-2-1996 at 8.00 a.m. stating therein that when he was ig
having sexual intercourse with his wife Vimalbai, she felt giddiness and her jaws got locked and thereafter she H
died. Based on this application police had taken entry in the Accidental Death register. The police started y
investigation. Spot panchanama (Exhibit 33), Inquest ba
panchanama (Exhibit 32) were prepared. The clothes and ornaments of the deceased were seized on the same date om
under panchanama (Exhibit 34). Two medical officers of Rural Hospital Naigaon conducted postmortem examination of the dead body from 11.30 a.m. till 12.55 B
p.m. on 1-2-1996. The cause of death was opined as “asphyxia due to throttling”. After getting Chemical Analyzer’s report and completion of investigation police filed charge-sheet against the accused persons. Charge was framed at Exhibit 23 against all the accused persons. ::: Downloaded on – 27/08/2013 21:03:02 ::: 8 Appeal 311 & 395 of 1998 6) PW 2 is Narayan Ramrao Dhage, brother of rt
deceased Vimalbai. He narrated the prosecution case ou
before Court. He specifically stated that, deceased Vimalbai was ill-treated on account of demand of Rs. C
50,000/-, television set, deck and a plot in MIDC area at Ghungrala to be transferred in the name of accused No.1. h
The witness stated that deceased Vimalbai had come to ig
his house for Diwali festival. At that time also she repeated that there was ill-treatment meted out to her by H
the accused on account of non fulfillment of the demand raised by the accused persons. On one occasion she y
complained that she was tied with a rope and dipped in ba
the water of well. Thereafter the parents of the deceased had consoled the accused persons that their demand om
would be met gradually. The witness stated that, after getting information they proceeded to Naigaon and found that Vimalbai was lying dead in the bullock cart. She had B
injuries on her person. Blood was oozing out of her nostrils. Neck was swollen. Right hand fingers were injured from the back side. As it was night time they stayed in the primary health center and reported the matter to Naigaon Police Station on the next day morning. ::: Downloaded on – 27/08/2013 21:03:02 ::: 9 Appeal 311 & 395 of 1998 7) In the cross-examination the witness stated that rt
at the time of marriage it was decided to pay Rs75,000/- in ou
presence of one Sambhaji to the accused persons. The amount was to be paid in cash or kind. The witness stated C
that he was temporarily serving and was earning Rs.800/- per month. The witness denied that amount of Rs.75000/- h
was not given at all. The witness stated that he had ig
disclosed to the mediator – Sambhaji that deceased was getting ill-treatment from the accused persons. The H
accused No.1 did not visit parental house of Vimalbai during her stay. Vimalbai studied upto seventh Standard. y
The witness did not visit house of the accused during ba
Nagpanchami and Diwali. He did not enquire with any persons from village Ransoyegaon in respect of ill- om
treatment meted out to Vimalbai. The witness further stated in the cross-examination that he is matriculate and he can read and write. He complained to the father-in-law B
of the deceased about the ill treatment given to her. 8) The witness further deposed that, accused No.1 Ramkishan had come to the house of the witness in a frightened condition. Doctor examined Vimalbai and ::: Downloaded on – 27/08/2013 21:03:02 ::: 10 Appeal 311 & 395 of 1998 declared her dead. The witness denied that accused rt
Ramkishan was classmate of Vimalbai in the school at ou
Ghungrala.
C
9) The witness clearly denied that Vimalbai was suffering from fits prior to the incident. He denied that he h
was knowing this disease of Vimalbai and she was brought ig
on 23rd January 1996 to Primary Health Centre, Naigaon for the treatment of such disease. He denied the H
suggestion put up by the defence in respect of Vimalbai suffering fits and being under treatment. The witness was y
put to detail cross-examination by the defence. He further ba
stated in his cross-examination that there was no electric bulb in any of the four rooms but the accused had stolen om
the electricity from the electric pole directly. There was electric bulb in each room. The witness did not find any television or radio in the room. The witness further B
deposed that at the time of settlement of marriage it was not agreed to give television set, Rs.50,000/- and plot. These extra demands were made after the marriage, according to the witness. The family of the witness owns three houses and agricultural land in village Ghungrala. It ::: Downloaded on – 27/08/2013 21:03:02 ::: 11 Appeal 311 & 395 of 1998 is a joint family and they possess 15 acres of land but do rt
not possess any plot in the MIDC area. The witness ou
categorically deposed that all the three original lady accused insisted for television, cash of Rs.50,000/- and C
plot at Ghungrala. Accused Digambar personally demanded these things.
h
10)
ig
PW 3 Sambhaji Turatwad was mediator in the marriage of Vimalbai. He deposed that Ramrao gave Rs. H
75,000/- to Ramkishan and performed the marriage. There was ill treatment meted out to the deceased on account of y
demand of money and articles. The deceased was ba
harassed and ill-treated.
om
11) PW 4 is Ramrao Raghoba Dhage, father of decease Vimalbai. He also supported the prosecution case and had given detail narration of the instances of ill B
treatment meted out to Vimalbai. In his cross-examination the witness had deposed that the accused had demanded money and articles from the deceased and she was harassed and ill treated by the accused persons. ::: Downloaded on – 27/08/2013 21:03:02 ::: 12 Appeal 311 & 395 of 1998 12) PW 5 is Vaijnath Sambhaji Marpatwar. He had rt
attended marriage of Vimalbai with Ramkishan. He has ou
also supported the prosecution case in the similar manner as supported by other witnesses. C
13) PW 6 is Mahajan Munjaji Yembalwad. He has h
supported the prosecution case. He had seen the dead ig
body of the deceased. He noticed that nostrils were bleeding and neck was swollen. H
14) PW 7 Anwar Khan Umardaraj Khan is Police Sub Inspector. He had given detail account of the y
investigation conducted by him. ba
15) The defence had examined DW 1 – Maroti om
Mahajan Chavan, who deposed before Court that he was working as Manager in Nanded District Central Cooperative Bank, Branch Ghungrala. Raman @ Ramrao B
Raghoba Dhage had account in the branch. The witness deposed that on 30-6-1997 an amount of Rs.61,893/- was credited in the account of Ramrao through cheque towards compensation in acquisition proceedings. ::: Downloaded on – 27/08/2013 21:03:03 ::: 13 Appeal 311 & 395 of 1998 16) DW 2 is Govind Phulsing Jadhav. The witness rt
deposed that he does not know accused Digambar present ou
before the Court. The witness was working as Junior Clerk in Rural Hospital. The witness issued a certificate in C
respect of admission of the dead body in the hospital and the time when post mortem examination was carried out. h
The witness deposed that the Medical Superintendent ig
asked him to give such certificate, accordingly he issued the certificate.
H
17) DW 3 is Hanmantrao Ramrao Gunturkar, y
Medical Officer, Rural Hospital Naigaon. This witness ba
conducted post mortem on the dead body of Vimalbai. He issued certificate and opined that cause of death as om
“asphyxia due to throttling”. 18) Defence Witness No.4 is Dr. Suresh Baliram B
Indurkar. This witness was shown one letter head dated 23rd January 1996. The witness deposed that the deceased had come to him for taking treatment regarding disease of epilepsy. The deceased was under his treatment for 15 days of the issuance of the certificate dated 23rd January ::: Downloaded on – 27/08/2013 21:03:03 ::: 14 Appeal 311 & 395 of 1998 1996. The witness identified the handwriting and the rt
signature. According to this witness, he had not ou
maintained any record about his providing treatment to Vimalbai for 15 days. He might have counted the period of C
15 days treatment on the basis of the prescription chit given by him for that treatment. The said certificate given h
by this witness to Vimalbai is at Exhibit 136 which reads thus :–
ig
“
H
Dr. Indurkar S.B.
Class I Children Specialist, Rural Hospital, Naigaon (Bz) Dt 23/1/96.
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:: CERTIFICATE ::
ba
It is to certify that Mrs. Vimalbai w/o Ramkishan Jadhav, aged about 20 years, R/o. Ran- Sugaon, Taluka Biloli is suffering from “epilepsy” and under treatment last fifteen (15) days. om
Hence certificate.
Sd/-
Class I Pediatrician
Rural Hospital Naigaon Bz. ” B
19) The learned counsel appearing for the appellants submitted that the prosecution has failed to establish allegation against original accused No.2 Digambar and accused No.5 Venkat. Considering the facts ::: Downloaded on – 27/08/2013 21:03:03 ::: 15 Appeal 311 & 395 of 1998 and the evidence brought on record the prosecution has rt
failed to establish offence punishable under section 304-B ou
of the Indian Penal Code. The medical evidence brought on record falsifies the case that deceased Vimalbai was C
throttled and killed by the accused persons. The allegations made by the prosecution in respect of demand h
of cash and articles do not have any nexus with the ig
incident of death of deceased Vimalbai. The prosecution witnesses are interested one and, therefore, they have H
falsely involved the accused persons. There was no motive for the appellants to commit murder of deceased Vimalbai. y
The conduct of the appellants, more particularly husband ba
of the deceased, demonstrates that he was innocent. om
20) The learned Additional Public Prosecutor submitted that demand of Rs.50,000/- and articles and other favours is clearly established in this case. It is a B
serious offence wherein a newly married woman was ill treated, tortured and throttled by the accused persons as their demands were not met. A married woman was killed of which primary responsibility is on the husband who has failed to explain the circumstances resulting in death ::: Downloaded on – 27/08/2013 21:03:03 ::: 16 Appeal 311 & 395 of 1998 of his wife. The death is unnatural one. It is homicidal rt
death. Within a period of one year from the date of ou
marriage the incident has taken place. The deceased had narrated repeatedly the instances of cruelty meted out to C
her by the accused persons. The defence raised by the appellants is improbable. The appellants have failed to h
explain circumstances properly in the statements made ig
under section 313 of the Code of Criminal Procedure. The defence that the deceased was suffering from epilepsy H
has been raised without any convincing material on record to cover up the misdeeds of the accused persons. The y
learned Additional Public Prosecutor submitted that the ba
State has preferred an appeal against the impugned judgment and order of acquittal which deserves to be om
allowed.
21) In support of his submissions, the learned B
counsel for the appellants has placed reliance on the following reported judgments. (1) Satvir Singh v. State of Punjab, (2001) 8 SCC
633. The Apex Court, in the facts of the case, observed ::: Downloaded on – 27/08/2013 21:03:03 ::: 17 Appeal 311 & 395 of 1998 that prosecution, in a case of offence under section 304-B, rt
Indian Penal Code cannot escape from the burden of proof ou
that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was C
caused “soon before her death”. (2) Subramaniam Vs. State of Tamil Nadu, 2009(7) h
Scale 317. This judgment was cited in respect of medical ig
evidence in case where death is caused due to asphyxia and the principles governing appeals against acquittal. H
(3) On the issue of principles governing cruelty by harassment in connection with demand of dowry, the y
learned counsel has placed reliance on the judgment of ba
the Apex Court in Narayanamurthy Vs. State of Karnataka 2008 LawSuit (SC) 874. om
(4) On the issue of consideration of principles governing evidence for consideration of offence punishable under B
section 304-B, Indian Penal Code, the learned counsel has placed reliance on the judgment of the Apex Court in Vipin Jaiswal Vs. State of A.P., in 2013 LawSuit (SC) 215 and Appasaheb Vs. State of Maharashtra, (2007) 9 SCC
721.
::: Downloaded on – 27/08/2013 21:03:03 ::: 18 Appeal 311 & 395 of 1998 22) The learned Additional Public Prosecutor has rt
referred to the Apex Court judgment in Kans Raj Vs. State ou
of Punjab, 2000 Cri.L.J. 2993 in support of the prosecution case.
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23) We have perused the original record, the judgment and order delivered by the trial Court and the h
judgments cited by the parties. We have considered the ig
submissions made on behalf of the defence. H
24) It is a matter of fact that the deceased Vimalbai married appellant No.1 Ramkishan on 12-5-1995. y
Vimalbai died on 31-1-1996. The incident in question took ba
place just within about eight months of her getting married. The burden on the husband and the inmates of om
the house is very heavy in this case. The prosecution evidence revealed that the marriage was settled on certain terms. At the time of marriage it was settled that B
the girls’ side would pay Rs.75,000/- to the accused persons. There is evidence that the amount was paid but soon thereafter further demands of the accused started increasing. They demanded Rs.50,000/-, television, deck and a plot situated in the MIDC area. Whenever the ::: Downloaded on – 27/08/2013 21:03:03 ::: 19 Appeal 311 & 395 of 1998 deceased visited her parental house she complained of ill rt
treatment. The parents tried to pacify saying that the ou
demands would be met one after another but still the ill- treatment never stopped. The deceased had reached a C
situation where it had become impossible for her to carry on the relationship. But still she was pulling on. There is h
sufficient evidence on record to demonstrate that the ig
appellants had raised demand soon after marriage which was not satisfied and due to the same they started ill- H
treating the deceased.
y
25) The deceased Vimalbai being wife of appellant ba
No.1 Ramkishan was in the custody of the husband. The husband was responsible to take full care of his wife. The om
defence suggested that offence punishable under section 304B Indian Penal Code is not established as the alleged demand was not made in connection with marriage. But B
considering the facts and the evidence brought on record we are of the view that demand was made in connection with marriage and as the demand was not fulfilled, the deceased was ill-treated and killed. ::: Downloaded on – 27/08/2013 21:03:03 ::: 20 Appeal 311 & 395 of 1998 26) The evidence of PW 2 Narayan, brother of the rt
deceased Vimalbai, throws sufficient light on the ou
relationship between the deceased and the accused persons and the demand raised by the accused persons. C
The evidence of other prosecution witnesses does support the prosecution case in respect of demand raise by the h
appellant and the ill treatment meted out to Vimalbai. 27)
ig
PW 1 Dr. Shyam Nagapurkar conducted post mortem of the deceased who noticed following injuries :- H
(1) Abrasion present over the medial fibre metacarpophalangeal joints or right side each ½ cm x ½ cm size.
y
ba
(2) Abrasion present over the medial four internal phalangeal on right side each ½ cm x ½ cm in size. (3) Abrasion positive over left forearm mid 1/3rd part, on om
lateral side measure 2.1/2 cm x 1 cm. (4) Swelling over the chin under surface of the chin. B
(5) Neck external minimum swelling present near the upper part of neck anterior side (middle part and over the lateral parts of uridine). Circum fever of over and 37 ad. at mid neck.
1. subcutaneous haemarrroage, positive beneath the swelling area.
::: Downloaded on – 27/08/2013 21:03:03 ::: 21 Appeal 311 & 395 of 1998
2. Bruises over the thyroid cartilages present. rt
3. Fracture of left cornea of cuboid bone. ou
4. Subcutaneous haemorrhage (+) over laryngeal. The injuries were ante mortem. In the internal C
examination he found following injuries. (1) Subcutaneous haemorrhage positive over the h
laryngeal area. Trachea was congested. Both lungs were congested on cut section. (2)
ig
Mouth was slightly open, tongue inside, mouth teeth intact, tongue inside the mouth. H
The cause of death, according to the doctor, was asphyxia due to throttling. In the cross examination of this y
doctor he deposed that it is true that asphyxia can be ba
caused if a person suffering from epilepsy or fits came into contact of a bullock cart or an iron bar of the jeep. In om
the light of the evidence on record we discard such an opinion and explanation given by the doctor. B
28) The defence had placed heavy reliance on the certificate issued by the doctor (Exhibit 136) to the effect that the deceased was suffering from epilepsy and was under treatment since last 15 days. Considering the evidence of defence witness Dr. Suresh Indurkar and ::: Downloaded on – 27/08/2013 21:03:03 ::: 22 Appeal 311 & 395 of 1998 overall facts and circumstances of the evidence brought rt
on record we are convinced to observe that the cause of ou
death proposed by the defence is not acceptable in the light of the medical evidence that the deceased died due C
to “asphyxia due to throttling”. We have perused the evidence of defence witnesses who were examined by the h
accused persons minutely. We are of the opinion that their ig
evidence does not provide reasons to disbelieve the prosecution case.
H
29) It has come in the evidence that deceased was taken in the bullock cart to the hospital and it was y
suggested that due to jerks suffered in the bullock cart the ba
deceased received fits and might have died. We discard such explanation and inference. om
30) Exhibit 145 is a letter submitted to the Taluka Magistrate, Biloli wherein it was stated that, during the B
intercourse with the husband deceased suffered epileptic fits and she died. The defence objected reading of this document on the plea that contents of this document are disputed and they are not proved though the document is exhibited.
::: Downloaded on – 27/08/2013 21:03:03 ::: 23 Appeal 311 & 395 of 1998 31) In the statement recorded under section 313 of rt
the Criminal Procedure Code the appellant husband has ou
failed to give proper explanation in respect of circumstances resulting in death of his wife, who was C
undisputedly with him at his home and thus in his custody. h
32) The learned Additional Public Prosecutor ig
appearing for the prosecution submitted that acquittal of the accused of offence punishable under section 302, H
Indian Penal Code is required to be reversed as none of the accused is coming out with proper reasonable y
explanation in respect of the circumstances resulting in ba
death of deceased Vimalbai.
33) In the case of Ashok Kumar V. State of om
Haryana, (2010) 12 SCC 350 the Apex Court observed in paragraphs 19 to 23 thus :
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“19. We have already referred to the provisions of Section 304-B of the Code and the most significant expression used in the Section is `soon before her death’. In our view, the expressions `soon before her death’ cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these ::: Downloaded on – 27/08/2013 21:03:03 ::: 24 Appeal 311 & 395 of 1998 are penal provisions and must receive strict rt
construction. But, even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme ou
of the Act. Further, the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other.
C
20. We are of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. This Court in the case of Tarsem Singh v. State of Punjab [AIR 2009 SC 1454], held that the legislative object in h
providing such a radius of time by employing the words `soon before her death’ is to emphasize the idea that her death should, in all probabilities, has been the ig
aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry related cruelty or harassment inflicted on her. H
21. Similar view was expressed by this Court in the case of Yashoda v. State of Madhya Pradesh [(2004) 3 SCC 98], where this Court stated that determination of the period would depend on the facts and y
circumstances of a given case. However, the expression would normally imply that there has to be reasonable ba
time gap between the cruelty inflicted and the death in question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this Section. However, there must be existence of proximate link between the acts of cruelty om
along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient whereafter, the couple and the family members have lived happily and that it would result in B
abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of a given case.
22. The cruelty and harassment by the husband or any relative could be directly relatable to or in connection with, any demand for dowry. The expression `demand ::: Downloaded on – 27/08/2013 21:03:03 ::: 25 Appeal 311 & 395 of 1998 for dowry’ will have to be construed ejusdem generis to rt
the word immediately preceding this expression. Similarly, `in connection with the marriage’ is an expression which has to be given a wider connotation. It ou
is of some significance that these expressions should be given appropriate meaning to avoid undue harassment or advantage to either of the parties. These are penal provisions but ultimately these are the social legislations, intended to control offences relating to the C
society as a whole. Dowry is something which existed in our country for a considerable time and the legislature in its wisdom considered it appropriate to enact the law relating to dowry prohibition so as to ensure that any party to the marriage is not harassed or treated with h
cruelty for satisfaction of demands in consideration and for subsistence of the marriage. ig
23. The Court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of H
innocence in his favour. In other words, the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of y
deeming fiction to the provisions of Section 304-B. Where other ingredients of Section 304-B are satisfied, in ba
that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of Section 304-B, the Court will om
presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under Section 304-B of the Code.”
B
34) In the facts of the case we find that deceased was in the custody of husband Ramkishan and it was his responsibility to explain the circumstances resulting in death of the deceased. The explanation given regarding ::: Downloaded on – 27/08/2013 21:03:03 ::: 26 Appeal 311 & 395 of 1998 deceased getting epileptic fits and suffering injury while rt
she was being carried in bullock cart is not acceptable and ou
convincing one. The appellant-husband of the deceased has failed to discharge his burden as described under the C
provisions of Section 106 of the Indian Evidence Act which reads as under :–
h
“106.Burden of proving fact especially within ig
knowledge.– When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
H
35) The trial Court had acquitted the accused persons including husband of the deceased of offence y
ba
punishable under section 302, Indian Penal Code. The trial Court in para 62 of the judgment observed that no inference could be drawn that as the accused gave false om
information about suffering of Vimalbai from ‘epilepsy’, they committed offence of murder. It was held that the B
prosecution has failed to establish beyond reasonable doubt that accused No.1 to 6 committed murder of Vimalbai, consequently they got the benefit and were acquitted of the offence punishable under section 302, Indian Penal Code.
::: Downloaded on – 27/08/2013 21:03:03 ::: 27 Appeal 311 & 395 of 1998 36) In the facts of the case and the evidence rt
brought on record we find that the prosecution has ou
established that deceased Vimalbai was in the custody of her husband. She died in circumstances which were not C
normal, while she was in the custody of the husband. The explanation given by him about unnatural death of the h
deceased was false. In the peculiar facts and ig
circumstances of the case we are of the view that husband must be held responsible for committing murder of H
deceased Vimalbai.
37) In respect of applicability of provisions of y
section 304-B, Indian Penal Code to the facts of the case ba
and the evidence on record we are of the view that, the demand was made in connection with marriage. Section 2 om
of Dowry Prohibition Act, 1961 defines “dowry” as under :- “Definition of “dowry”.- In this Act, ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly– B
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;
at or before or any time after the marriage in connection with the marriage of the said parties,but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. ::: Downloaded on – 27/08/2013 21:03:03 ::: 28 Appeal 311 & 395 of 1998 rt
The provisions of Section 113-B of the Indian Evidence Act read thus :–
ou
“113-B. Presumption as to dowry death.– When the question is whether a person has committed C
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 h
caused the dowry death.”
ig
When soon after marriage illegal demands for H
articles are made with the wife and she is being forced to meet it by asking her parents to fulfill the same, it must be y
held that the husband is holding wife to threat. Thus, we ba
hold that such demands are made in connection with marriage. There is sufficient and ample evidence on om
record to establish that as the demand was not satisfied the appellants had ill-treated the deceased and there was dowry death. The accused/appellant had committed B
offence punishable under section 304-B, Indian Penal Code. Conviction of appellants-accused under section 498- A of the Indian Penal Code also does not call for interference.
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ORDER
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38) Criminal Appeal No.311 of 1998 is dismissed. 39) Criminal Appeal No.395 of 1998 is partly C
allowed. The impugned judgment and order of acquittal of original accused No.1 – Ramkishan Digambar Jadhav for h
an offence punishable under section 302, Indian Penal ig
Code, is quashed and set aside. He is convicted for an H
offence punishable under section 302 Indian Penal Code and is sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/- (five thousand only), in default, to suffer y
rigorous imprisonment for one month. The order of ba
sentences awarded against original accused No.1 Ramkishan Digambar Jadhav shall run concurrently. The om
appeal of the State as regards respondent Nos.2 to 6 stands dismissed. The bail bonds of the accused stand B
cancelled.
Sd/- Sd/- (A.I.S. CHEEMA, J.) (NARESH H PATIL, J.) rsl
::: Downloaded on – 27/08/2013 21:03:03 ::: 30 Appeal 311 & 395 of 1998 40) After pronouncement of the judgment, the rt
learned counsel Shri. Bora, for the appellants seeks six ou
weeks’ time to surrender. The learned Additional Public Prosecutor has opposed the request. C
41) We grant six weeks’ time to the convicted persons to surrender.
h
Sd/-
ig
(A.I.S. CHEEMA, J.)
Sd/-
(NARESH H PATIL, J.)
H
y
ba
om
B
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