IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.37 OF 2002.
01. Ramesh Dalpatsa Kalal,age 32 years, occu. Agri.,
(Appeal abated against appellantNo.01 vide order dated 14.10.2016).
02. Mathurabai Dalpatsa Kalal,age 58 yrs. Occu. Household,
03. Dalpatsa Anandsa Kalal,age 65 yrs. Occu. Agri.,
All r/o village Arthe (Kh.),
Tq. Shirpur, Dist. Dhule. .. APPELLANTS.
The State of Maharashtra. .. RESPONDENT.
Shri C.R. Deshpande, Advocate for appellants.
Shri K.S. Patil, Addl. P.P. For State.
CORAM : V.L. ACHLIYA, J.
Reserved on: 30.01.2017.
Pronounced on: 28.04.2017.
1. This appeal is directed against judgment and order dated 5th January, 2002 passed by the Ad-hoc Additional Sessions Judge, Shahada, District Nandurbar in Sessions 37.02crapl Case No.238 of 1998. By the impugned judgment and order, appellants were held guilty of offence punishable under Section 3 of the Dowry Prohibition Act and sentenced to suffer S.I. for two years and to pay a fine of Rs.15,000/- each, in default of payment of fine, to suffer S.I. for three months.
2. In brief, the facts leading to filing the appeal are summarized as under:
(a) Appellants / accused were tried for committing offences punishable under Sections 306, 420 r.w. 34 of IPC and section 3 of the Dowry Prohibition Act, 1961. On conclusion of trial, appellants were acquitted of the offences punishable underSections 306, 420 r.w. 34 of IPC. They were convicted for the offence punishable under Section 3 of the Dowry Prohibition Act and awarded sentence as stated above.
(b) On 9.10.1992, the complainant Ashok Kalal (P.W.3) visited Police Station, Shahada and lodged complaint vide Exh.39 alleging therein that 37.02craplengagement of his sister Pramila (hereinafter referred to as the ‘deceased’) had taken place on 7.5.1992 with deceased appellant – accused No.1. Before the engagement, talk in respect of settlement of marriage had taken place on 21.4.1992. The meeting was attended by family members from both sides and other relatives. It was decided to give Rs.33,000/- in cash and golden ring of 10 gm as dowry. It was further decided that expenses towards clothes, photographer, video cassette and band would be borne in equal share and amount as agreed will be given at the time of purchasing clothes of marriage. Subsequent thereto, the programme of engagement had taken place on 7.5.1992. One month after the programme of engagement, appellant Nos.2 and 3 called the complainant to their house and told him that they want to admit their son i.e. deceased appellant No.1 for B.Ed. Course and for that purpose they require Rs.15,000/-. They further told him that only after receiving Rs.15,000/-, they will perform 37.02crapl marriage of their son. The complainant refused to pay any amount and clearly told them that he will not pay any amount other than the amount of dowry as fixed and he will pay that amount at the time of marriage. After coming to his house, he disclosed his family members and relatives about the amount of Rs.15,000/- asked to be paid by accused Nos.2 and 3 and further told them that due to his refusal, accused Nos.2 and 3 have become annoyed. He further alleged that after some time, accused told him that if he is not in a position to pay Rs.15,000/-, then get their son Ramesh admitted for B.Ed. Course and whatever expenses required for that purpose, will be adjusted at the time of marriage. In order to ensure good future life of his sister, he spent Rs.7,000/- and got accused No.1 admitted for B.Ed. Course through one Nago Budha Patil.
(c) On 14.6.1992, accused No.2 sent post card to him and informed that the marriage between his sister Pramila and accused is not possible. He 37.02crapl has mentioned in the letter that he had shown horoscope of both of them to Brahmin at Shirpur and he has told him that if marriage is performed, death of one of them is likely to take place. Thereafter, talks between the members of family of the complainant and accused persons took place and ultimately it was decided to perform the marriage after accused No.1 completes his B.Ed. Course. On 5.10.1992, father of the complainant went to the house of accused Nos.2 and 3 to meet him. But, they abused his father and asked him to step down from the steps of their house and further asked him not to visit their house. They threatened that if he comes back, then they will kick him out and further told that they will not perform the marriage of their son with his daughter. After returning home, father of the complainant narrated the incident. Because of harassment and disrespect given to his father by accused Nos.2 and 3, his sister Pramila got very much disturbed and felt bad about the incident. Prior to said incident also accused No.3 37.02craplrepeatedly told that she will not allow the marriage of her son to take place with Pramila.
(d) On 6.10.1992, deceased left her house by telling that she is going to nearby Bhavani temple. Since deceased did not return back, the complainant and other family members went in search of her. On 7.10.1992, dead body of deceased was found in the river bed of river Tapi near village Prakasha. Because of said acts of the accused, deceased was deeply hurt. She, therefore, committed suicide by jumping into the river and putting an end to her life. After body of deceased was recovered from river bed of Tapi, the post- cards written by her to Nago Patil and Gulabrao Patil were received. In these letters, she disclosed the reason for committing suicide i.e. due to said acts of the accused. Pursuant to the complaint lodged by the complainant, offence punishable under Section 306 r.w. 34 of IPCand section 3 of the Dowry Prohibition Act came to be registered against accused.
(e) Before lodging of complaint by Ashok Kalal (P.W.3), A.D. was already registered vide AD No.32/1992. On 9.10.1992, complainant Ashok Kalal (P.W.3) lodged complaint against accused. Upon his complaint, offence at C.R. No. 123/1992 was registered. Pursuant to the enquiry, P.S.I. Kashinath Bharte (P.W.7) made inquest panchanama of the dead body of deceased and later on sent dead body of deceased for postmortem. After registration of offence, accused were arrested on 11.10.1992. During the course of investigation, post-cards written by deceased as well as accused No.2 came to be seized. Specimen handwriting of accused persons, the letters and specimen handwriting were sent to handwriting expert. During the course of investigation, statement of witnesses Kamalbai Kalal (P.W.4), Nago Budha Patil (P.W.5) and Gulabrao Patil (P.W.6) were recorded. On completion of investigation, accused were charge- sheeted before the Court of J.M.F.C., Shahada 37.02crapl and later on case was committed to the Court of Sessions.
(f) Initially, charge was framed under section 306 r.w. 34 of IPC and section 3 of the Dowry Prohibition Act. Later on additional charge under Section 420 r.w. 34 ofIPC came to be framed against accused. Accused pleaded not guilty and claimed to be tried. On the basis of cross- examination of the witnesses and statements recorded under Section 313 of Cr.P.C., defence of accused appears to be of total denial and false implication at the instance of complainant. In nutshell, defence of the accused is that they never demanded any dowry nor received any amount. The accused have taken a stand that admission of accused No.1 had taken place on 26.5.1992 and therefore, the entire story about demand of Rs.15,000/- and payment of Rs.7,000/- is false. It is further case that accused No.1 got admitted to B.Ed. Course on 26.5.1992 i.e. much prior to alleged demand.
3. In order to prove its case, prosecution has examined seven witnesses and further proved certain documents. On conclusion of trial, learned Additional Sessions Judge acquitted accused for the offences punishable under Sections 306, 420 r.w. 34 of IPC. However, they were found guilty of offence punishable under Section 3 of the Dowry Prohibition Act and awarded sentence as stated above. Being aggrieved, the appellants have preferred this appeal.
4. Mr. C.R. Deshpande, learned Counsel for appellants-accused strenuously contended that there is no cogent, convincing and reliable evidence to sustain conviction. He submitted that the trial Court has convicted the accused without cogent and convincing evidence to prove the demand or payment of dowry. He submitted that the reasons and findings recorded by the trial Court are based upon surmises and conjectures having no foundation on record.
5. On the other hand, learned APP for the State supported the judgment and order passed by the trial Court and submits that the demand and payment which is proved by 37.02craplprosecution necessarily to be construed as demand of dowry made in consideration of marriage. He submits that complainant has deposed that accused told him that expenses incurred for securing admission would be adjusted towards the amount to be given in marriage and therefore, the demand of Rs.15,000/- and acceptance of Rs.7000/- on the part of accused, amounts to taking dowry within the meaning of section 3 of the Dowry Prohibition Act.
6. In order to appreciate the submissions advanced by learned Counsel for the appellants and APP for the State, I have carefully perused the record and proceedings.
7. Since the accused are acquitted for the offences punishable under Sections 306, 420 r.w. 34 of IPC and there is no appeal preferred against acquittal, it is not required to go into the reasons and findings recorded by the trial Court acquitting the accused for the said offences. The scope of appeal is confined to conviction of appellants under Section 3 of the Dowry Prohibition Act.
8. Before adverting to appreciate the submissions 37.02crapl advanced, it is necessary to consider Section 3 of the Dowry Prohibition Act, 1961 which reads, as under:
“3. Penalty for giving or taking dowry.–(1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:
Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.
(2) Nothing in sub-section (1) shall apply to, or in relation to,–
(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf):
Provided that such presents are entered in a list maintained in accordance with the rules made under this Act;
(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf):
Provided that such presents are entered in a list maintained in accordance with the rules made under this Act:
Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.”
37.02crapl The word ‘dowry’ as referred in Section 3 of the said Act has been defined under Section 2 of the Dowry Prohibition Act which reads, as under:
“2 Definition of ‘dowry’. –In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly–
(a) by one party to a marriage to the other party to the marriage; or
(b) by the 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.
Explanation II.-The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).”
9. Thus, if we consider the definition of ‘dowry’, as quoted above, then it refers to giving of property or valuable security at or before or after the marriage in consideration of marriage between the parties; but, it excludes from its purview the amount of mahr agreed to be given in marriages governed by Muslim Personal Law and also excludes the presents etc. given in marriage unless they are given in consideration of marriage.
10. If we consider the provisions of section 3 of the said Act, then what has been prohibited and made punishable is giving or taking of dowry as well as abetting those acts by any person. In order to attract the offence under Section 3 of the Dowry Prohibition Act, it is necessary that what is alleged to have been given or taken or abetted to be given or taken, must be a dowry as defined by Section 2 of the said Act. Thus, to constitute an offence under Section 3of the Dowry Prohibition Act, it is necessary that an act as attributed against the accused must necessarily amount to an act of giving or taking dowry. It necessarily means that, such giving or taking the property or valuable security must be in consideration of marriage.
11. If we consider the complaint filed by the complainant Ashok Kalal (P.W.3) and the fact deposed by him, then he has necessarily deposed that accused had asked him to pay Rs.15,000/- for getting the accused No.1 admitted for B.Ed. Course. In the complaint lodged, it is stated that the accused told him that the amount will be adjusted towards dowry agreed to be paid in the marriage. It is further stated in the complaint that subsequent to refusal to pay Rs.15,000/-, 37.02crapl accused contacted him and told him that if he is not in a position to pay the amount, then asked him to act on his own and get accused No.1 admitted for B.Ed. Course and whatever amount incurred for that purpose, would be adjusted in the amount to be paid at the time of marriage. It is further stated in the complaint that the complainant got accused No.1 admitted in B.Ed. Course by spending Rs.7000/- through Nago Patil (P.W.5).
12. Prosecution has examined Ashok Kalal (P.W.3) complainant vide Exh.31. He has deposed that one month after the engagement ceremony (Sakharpuda), accused called him at their residence and demanded Rs.15,000/- for admission of accused No.1 in B.Ed. Course. He refused to give any amount to them. He further deposed that he narrated the incident to his family members. Later on, the accused persons informed him to bear the expenses of admission of B.Ed. Course of accused No.1 and he gave Rs.7000/- to accused persons through Nago Patil (P.W.5). If we consider the testimony of complaisant and the facts stated in the complaint, then he has deposed altogether different story in respect of payment of Rs.7000/-. In the complaint, 37.02crapl he has stated that he has given Rs.7000/- to Nago Patil (P.W.5) and through him, he got secured the admission for accused No.1 in B.Ed. College. Whereas, in the facts deposed before the court, he has deposed that he had paid Rs.7000/- to accused through Nago Patil (P.W.5). Thus, there is material variance in the complaint lodged by the complainant and the facts deposed before the court.
13. If we consider the evidence of the complainant i.e. P.W.3, still no offence punishable under Section 3 of the Dowry Prohibition Act can said to be proved in the facts and circumstances of the case. As discussed, Section 3 of the Dowry Prohibition Act prohibits giving or taking of dowry. Section 4 of the said Act provides for penalty for demand of dowry. If we consider the evidence as it is, then it nowhere reflects commission of offence under Section 3 of the said Act. In order to attract the offence, there must be an act of taking or giving of dowry. The demand of Rs.15,000/- or giving Rs.7000/- for the purpose of securing admission for B.Ed. Course, has no nexus with the demand made in consideration of marriage. As per the case of the prosecution, it was mutually agreed to provide cash amount of Rs.33,000/- and 37.02crapl gold ring of 10 gms. in the marriage to accused No.1 and other expenses to be borne in equal proportion. The demand of Rs.15000/- or alleged demand of Rs.7000/- is nowhere claimed to be part of dowry demanded or agreed to be given as per alleged agreement, in consideration of marriage. Such demand as well as payment, even if accepted, then still it has no nexus with something agreed to be given and/or taken before or after the marriage. The alleged demand and payment is not covered by definition of ‘dowry’, as provided under Section 2 of the Dowry Prohibition Act. In absence of such demand and payment being covered by the meaning of word ‘dowry’, offence under Section 3 of the Dowry Prohibition Act is not attracted and for this reason only the conviction of appellants is not sustainable in law.
14. In order to appreciate the submissions, I have perused reasons and findings recorded by the trial Court. In my view, the reasons and findings recorded by the trial Court are not sustainable as same are based upon assumptions and presumptions. There is no cogent and convincing evidence to prove the alleged demand of Rs.15,000/- as well as payment of Rs.7000/- as deposed by the complainant. Besides, oral 37.02crapl testimony of the complainant (P.W.3), supplemented by Nago Patil (P.W.5), there is no evidence to prove the alleged demand. In the cross-examination, Ashok Kalal (P.W.3) has admitted that he was maintaining register in his grocery shop of payments made to other persons. He has categorically stated that he had recorded the entry of payment of Rs.7000/- to accused through Nago Patil in the diary maintained by him. He has admitted that he has not handed over said diary to police.
15. In the examination-in-chief itself, the complainant has deposed that amount of Rs.15000/- was demanded for securing admission for accused No.1 for B.Ed. Course. It is nowhere stated by the complainant that the amount of Rs.15000/- was demanded as dowry or that amount was demanded as part of amount agreed to be given as dowry in marriage. It is also pertinent to note that the complainant has not stated that he has personally delivered the amount to accused. He has deposed that he has given Rs.7000/- to accused through Nago Patil (P.W.5). I have already discussed in the foregoing paras that the story narrated by the complainant is altogether different than the facts narrated in 37.02crapl the complaint. In the complaint, the complainant has stated that he has given Rs.7000/- to the person concerned through Nago Patil and got admitted accused No.1 for B.Ed. Course. In the examination-in-chief, the witness has deposed that he paid the amount to accused persons. In cross-examination, he deposed that he paid the amount to accused No.1 and at that time, accused Nos.2 and 3 were present. Besides the oral testimony of the complainant and Nago Patil (P.W.5), there is no other evidence to establish that alleged demand was made by accused. So also, there is no cogent and convincing evidence to show that the complainant paid Rs.7000/-. It is pertinent to note that alleged demand was made in the month of May, 1992. The complaint was lodged on 9.10.1992. Although the complainant has admitted that he was maintaining diary and in that diary taken note of payment made to the accused. However, said diary was not seized during investigation. It is the defence of the accused that accused No.1 secured admission for B.Ed. Course on 26.5.1992 and in support of this defence, accused No.2 has relied upon receipt of payment made on 26.5.1992 towards admission secured. The complainant has deposed that alleged demand was made one month after the engagement37.02crapl ceremony. The engagement ceremony was performed on 7.5.1992. It is pertinent to note that the alleged letter written by accused No.3, is claimed to be received on 14.6.1992, informing the complainant that marriage between accused No.1 and his sister is not possible due to advice from Brahmin. If we consider the date of engagement ceremony as 7.5.1992 and the demand made after a period of one month, then certainly the demand was made around 7.6.1992. If, the accused No.1 had secured admission on 26.5.1992, then there is no question of such demand being made on the part of accused one month after 7.5.1992.
16. It is pertinent to note that it is nowhere the case of the prosecution nor the complainant has deposed that amount of Rs.15000/- was demanded out of dowry amount and amount of Rs.7000/- was paid as a part payment of dowry. In this view, the reasons and findings recorded by the trial Court are not sustainable in law. In my view, there is no cogent, convincing and reliable evidence to sustain the conviction for the offence punishable underSection 3 of the Dowry Prohibition Act.
17. I have already discussed in the foregoing paras that in order to attract section 3 of the said Act, there must be an act of giving and taking dowry on the part of accused. For proving the offence under Section 3 of the said Act, it is incumbent upon the prosecution to prove that what has been given or taken, amounts to dowry within the meaning of section 3 of the said Act. The accused are not charged for committing offence under Section 4 of the Dowry Prohibition Act. Demand of dowry is made punishable under Section 4 of the Dowry Prohibition Act. Accused were never charged for commission of offence under Section 4 of the said Act. The entire case of the prosecution and the evidence refer to demand of dowry by accused. There is no evidence to prove that the alleged demand was made towards dowry. On the contrary, the complainant (P.W.3) has deposed that the amount was demanded for admission of accused No.1 for B.Ed. Course, which has nothing to do with demand of dowry.
18. In view above, conviction of the appellants – accused is not sustainable in law. I am, therefore, inclined to allow the appeal and set aside the conviction.
19. Hence, the following order is passed:
i) Appeal is allowed in terms of prayer clause (B);
ii) The judgment and order dated 5.1.2002 passed by the 1st Ad hoc Additional Sessions Judge, Shahada in Sessions Case No.238 of 1998 is set aside;
iii) The appellant Nos.2 and 3 are acquitted of the offence punishable under Section 3 of Dowry Prohibition Act. Fine amount if any deposited by them, be refunded.
iv) Bail bonds furnished by appellant Nos.2 and 3 stand discharged.
[ V.L. ACHLIYA, J ] Kadam.