R/CR.A/46/1995 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL No. 46 of 1995
FOR APPROVAL AND SIGNATURE :
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE Mr. JUSTICE B.N. KARIA
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
any order made thereunder ?
STATE OF GUJARAT….Appellant(s)
Versus
PATEL PRAVINKUMAR KASHIRAM 2….Opponent(s)/Respondent(s)
Appearance :
Ms JIRGA JHAVERI, APP for the Appellant(s) No. 1
HCLS COMMITTEE, ADVOCATE for the Opponent(s)/Respondent(s) No.
1-3
Mr PRATIK B BAROT, ADVOCATE for the Opponent(s)/Respondent(s)
No. 1 – 3
CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
and
HONOURABLE Mr. JUSTICE B.N. KARIA
January 2018
CAV JUDGMENT (PER : HONOURABLE Mr. JUSTICE B.N.
Page 1 of 38
HC-NIC Page 1 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
KARIA)
By way of this Appeal, the State of Gujarat has
challenged the judgment passed by the Court of
learned Additional Sessions Judge, Mehsana in Sessions
Case No. 93 of 1994 dated 28th September 1994 vide
which, the present respondents/accused have been
acquitted by the trial Court for commission of offence
punishable under Sections 302, 304 [B], 498A of the
Indian Penal Code [“IPC” for short] and Sections 3 4
of the Dowry Prohibition Act, 1961.
The facts leading to the Appeal as unfolded during
trial are that – the complainant Chhaganbhai
Virchanddas Patel, resident of Khali has two sons and
three daughters. His son Vishnu is eldest among them
and daughter Ramila is younger to him, Kailashben is
younger to Ramila and Savita is younger to Kailashben.
Whereas, his son Ashwin is youngest among all his
children. His daughter Ramila’s marriage was
solemnized at village Gorad with one Mahendrakumar
Jesangbhai Patel. But, as they did not have harmonious
Page 2 of 38
HC-NIC Page 2 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
relations with each other, they took divorce. As his son
Vishnu’s marriage was also solemnized there, he also
had taken divorce. After passage of twelve months, it
was decided to solemnized marriage of his daughter
Ramila with Pravinkumar Patel, resident of Dhanlaxmi
Society, Mahesana and in exchange thereof, it was also
decided to solemnize marriage of Bhikhiben – sister of
Pravinkumar with complainant’s son named Vishnu.
Thereby, these marriages were solemnized by way of
such exchange. Prior to two months of lodgment of the
complaint, when his daughter got remarried, a gold
chain was given to her, but it was forcefully taken away
from her by Pravinkumar ie., the son-in-law of the
complainant. The complainant’s daughter Ramila told
him that the said gold chain was sold out by her
husband-Pravinkumar. Thereafter, the complainant
advised his daughter to live harmoniously at her in-
laws’ and sent her back by stating that he would
purchase another gold chain for her. Prior to one week
of the incident i.e. on 26/09/1993, Ramila again came
Page 3 of 38
HC-NIC Page 3 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
at the house of complainant and stated in presence his
son, his wife and his brother Bhagwandas that her
parents-in-law and husband have sent her to bring Rs.
20,000/- from her parents which they need for their
other house. She further stated that she has been
clearly told by her in-laws that they will not allow her to
enter into the house unless she brings the said amount.
All present there have pacified her and asked her to
send her father-in-law Kashiram or mother-in-law
Joitiben to discuss in this regard. When Ramila was
asked to go to her in-laws house after her brief stay for
three days at the complainant’s house, she denied to
go there without money. She told that her parents-in-
law and husband would not allow her to live there
peacefully without money. As a result of that the
complainant told her that he or his brother will come to
meet her in-laws in this regard in two days and thereby,
she was persuaded to go to her in-laws house. Due to
death occurred at Kanesara village in the morning on
31-12-1993, there was condolence meeting and the
Page 4 of 38
HC-NIC Page 4 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
complainant went there to attend the same with some
persons of his area, there were persons from
Mahesana. As one of them came to know that we hail
from Khali village, he stated that a woman in
Dhanlakshmi Society, who also hails from Khali village
died due to burning. On knowing this, they inquired
further, but they did not state anything else. Moreover,
the complainant does not even know him. As his
daughter Ramila lived in Dhanlakshmi Society, the
complainant, his brother-Bhagwandas, Vishnubhai and
Amratbhai Shankarbhai hired a jeep and came to Unjha
to see her. He along with his nephew Kantibhai went to
bungalow no. 19B in Dhanlakshmi Society, where his
daughter resided and found that there were many
people standing surrounding the said house and Police
was carrying out investigation at rear side of the house.
When he went into the house, dead body of his
daughter was lying in the hall. Her external clothes
were all burnt; she had sustained severe burn injuries
all over her body and died. Therefore, he asked her in-
Page 5 of 38
HC-NIC Page 5 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
laws Kashiram Prabhudas, Joitiben and son-in-law
Pravinkumar Kashiram who were present there and
they stated that some altercation had occurred on a
previous night; resultantly, Ramila has taken such a
step. Having said this, they did not state anything else.
But, he came to know via hearsay from surrounding
persons that Ramila was strangled by her in-laws and
husband; kerosene was poured on her and she was set
on fire at about 07:00 hrs in the morning. Moreover, he
came to know the fact that aforesaid three persons
quarreled with Ramila throughout the night. Therefore,
the complainant lodged a complaint against all the
respondents [accused] at the Mahesana City Police
Station. Having registered the said complaint, offence
was registered against the said accused.
In the present case, in order to prove its case,
prosecution examined complainant Chhaganlal
Virchandbhai as prosecution witness no. 1 at Exh. 13;
Bhagwanbhai Virchandbhai as PW-2 at Exh. 15; PW-3
Patel Kantilal Ambalal at Exh. 16; PW-4 Manubhai
Page 6 of 38
HC-NIC Page 6 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
Hirabhai Barot at Exh. 17; PW-5 Kanubhai Hirabhai at
Exh. 19; PW-6 Vijaykumar Rameshbhai Rami at Exh. 21;
Medical Officer PW-7 Manilal Amthabhai Prajapati at
Exh. 23 [who performed post mortem of the deceased];
PW-8 Kanubhai Ramshilal at Exh. 26; PW-9 Ramabhai
Manilal at Exh. 27; PW-10 Maheshgiri at Exh. 28; PW-11
Lilaben Ramgiri at Exh.29; PW 12 Laxmanji Ranaji at
Exh. 30 and PW-13 Jassujo Rana at Exh. 47.
On the basis of evidence produced on the record
by the prosecution – both ocular as well as
documentary, it was held by the trial Court that the
prosecution had not been able to prove the guilt of the
accused beyond all reasonable doubt for commission of
offences; as aforestated. Accordingly, had acquitted all
the accused persons [respondents herein].
Feeling aggrieved by the said acquittal, the State
of Gujarat has filed the present Criminal Appeal under
Section 378 of the Code of Criminal Procedure.
We have heard Ms. Jirga D Jhaveri, learned
Additional Public Prosecutor for the appellant-State and
Page 7 of 38
HC-NIC Page 7 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
Mr. Pratik B Barot, learned advocate appearing on
behalf of the respondents-original accused.
Learned APP Ms. Jirga Jhaveri appearing for the
appellant-State questioned legality of the judgment of
the learned Sessions Judge urging that the deceased
was wife of the A1, being not in dispute, the
circumstances which found favour with the trial Court
namely, that the deceased and the respondents were
living together and last seen together; [b] it was for the
respondents to give a reasonable explanation as to how
she died, as they were staying in a common house.
It is further submitted that the prosecution has
clearly proved its case beyond reasonable doubt
against the respondents accused by leading cogent and
satisfactory explanation. However, the learned trial
Judge has committed an error in not believing the
testimony of the material witnesses. That, dowry
demand was made by the respondents with the
deceased Ramilaben; particularly of Rs. 20,000/ for
purchasing a new house from the complainant. As she
Page 8 of 38
HC-NIC Page 8 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
did not fulfill the demand made by the respondents on
a previous night of the incident, they indulged her in a
quarrel and on the next date, early in the morning, this
incident took place in the house of the respondents.
That, these versions were supported by the prosecution
witnesses, particularly father of the deceased as well as
other relatives, however, the learned trial Court has
committed a grave error in not believing the testimony
of the prosecution witnesses.
It is further submitted that soon before the
incident, respondents indulged in a quarrel with the
deceased and this fact was supported by two witnesses
from the prosecution side. That, the medical evidence
also supports prosecution case by examining Doctor
who performed the post mortem. That, the prosecution
witnesses of the scene of offence have also supported
the prosecution, however, the learned trial Judge has
committed grave error in not believing the testimony of
panch witnesses. That, the family members of the
deceased were not informed of the incident having
Page 9 of 38
HC-NIC Page 9 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
taken place immediately. That, after the incident, the
accused never tried to break open the lock of the room
or even tried to save deceased-Ramilaben. That, the
Investigating Officer has also supported the prosecution
by proving statement of the prosecution witnesses who
have turned hostile.
That, the testimony of PW-10 Maheshgiri and PW-
11 Lilaben Ramgiri and other witnesses were recorded
by the Investigating Officer and in his deposition, their
statements were proved by him before the Court below.
That, due to dowry demand made by the respondents-
accused, deceased Ramilaben had received burn
injuries and the prosecution has successfully proved its
case under Section 304B IPC, and therefore, the order
acquitting the respondents by the trial Court requires
interference by this Court. Hence, it was requested by
learned APP Mr. Jhaveri to quash and set-aside the
impugned judgment passed by the learned Additional
Sessions Judge, Mehsana in Sessions Case No. 93 of
1994.
Page 10 of 38
HC-NIC Page 10 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
Per contra, learned advocate Shri Pratik Barot
appearing on behalf of the respondents supported the
judgment and findings arrived at by the learned trial
Court to urge that the cause of death of the deceased
cannot be said to have been caused by strangulation.
That, the circumstantial evidence whereupon reliance
has been placed by the trial Court cannot be said to
have formed a complete link in the chain to arrive at
the guilt of the respondents. That, the testimony of
uncle of the deceased ie., PW-2 is completely contrary
to the deposition of the father of the deceased. That, in
the instant case, father of the deceased is only a crucial
witness from the prosecution side. That, PW-3 Patel
Kantilal Ambalal in his examination-in-chief has stated
that demand of Rs. 20,000/ was made from the
deceased, while in the cross-examination he admits of
there being no talk on this aspect and therefore, the
whole case of the prosecution destroys. Though this
witness supports the complainant, contrary to his
statement before the police on the aspect of demand of
Page 11 of 38
HC-NIC Page 11 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
Rs. 20,000/ as dowry. That, mere cruelty or
harassment; if any, would not be enough to attract the
provision of Section 304B IPC. That, no cogent evidence
under Section 302 IPC was led by the prosecution. That,
the prosecution has clearly failed to establish homicidal
death which is the primary, if not solitary basis, in order
to convict the accused under Section 302 IPC. That, no
medical evidence is available with the prosecution and
no question was asked to any of the prosecution
witnesses examined before the Court by putting a
single question as to whether it was a homicidal death.
It is further argued that it is the first and foremost
aspect which was required to be proved by the
prosecution. On this issue, counsel for the respondents
placed reliance upon a decision of the Apex Court in the
case of Madho Singh vs. State of Rajasthan, [2010]
15 SCC 588.
Learned counsel for the respondents further
argued that the demand of dowry as alleged by the
prosecution is not fully corroborated by the prosecution
Page 12 of 38
HC-NIC Page 12 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
witnesses. That, it can be a case of suicide by the
deceased, but not due to dowry demand made by the
respondents. That, the charge framed by the trial Court
vide Exh. 8 was never proved by the prosecution. It is
further submitted that Section 106 of the Evidence Act
would come into picture in such a case where death
has occurred in a common house and presumption
could be made against the accused persons. That,
although the same may be considered to be a strong
circumstance, but that by alone in absence of any
evidence of violence on the deceased cannot be held to
be conclusive evidence. On this issue, learned advocate
Shri Barot for the respondents has placed strong
reliance upon a decision of the Apex Court in the case
of Subramaniam v. State of Tamil Nadu Anr.,
reported in [2009] 14 SCC 415.
Learned advocate for the respondents drew
attention of this Court to another factual lacunae on the
aspect of no marks of violence having been found on
the person of deceased-Ramilaben; nay marks of
Page 13 of 38
HC-NIC Page 13 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
strangulation on her neck. That, it was not possible to
enter into the room from outside, as it was locked from
inside the room. That, primary investigation was carried
out under Section 174 CrPC as the accidental death, as
dowry death was never proved by the prosecution. In
support of the above contention, learned advocate for
the respondents referred to a decision of the Apex
Court in the case of Bimla Devi v. Rajesh Singh
Anr., reported in 2016 SAR [Criminal] 577.
Concluding his arguments, learned advocate Shri
Pratik Barot appearing on behalf of the respondents
urged this Court to dismiss the present Appeal as the
prosecution has completely failed to prove guilt of the
accused beyond reasonable doubt.
Having carefully considered submissions made on
behalf of the respective sides, it appears that on one
side, the prosecution has tried to level allegations
against the respondents-accused for they having
committed murder of deceased-Ramilaben by
strangulation and pouring kerosene over her body with
Page 14 of 38
HC-NIC Page 14 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
the held of each other and on the other side, it is the
case of the prosecution that there was a demand of
dowry made by the respondents-accused from the
victim, and she was subjected to physical and mental
cruelty prior to her death, and therefore, the accused
have committed an offence punishable under Sections
304B, 498A IPC read with Sections 3 4 of the Dowry
Prohibition Act, since the offence was committed within
a period of seven years of the marriage of deceased-
Ramilaben.
In order to convict the respondents-accused for an
offence punishable under Section 302 IPC, the first and
foremost aspect is to prove homicidal death by the
prosecution. The evidence available on record falls
short to prove homicidal death of deceased-Ramilaben.
According to PW-1Chanalal Virchandbhai, father of
the deceased, his daughter-Ramila was married to
Pravinkumar about one and a half years ago. Initially,
they were at good terms, but thereafter, he started
beating and harassing complainant’s daughter. He sold
Page 15 of 38
HC-NIC Page 15 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
Ramila’s gold chain. When Ramila was brought to her
parental home to attend a social function of her elder
brother, she told that her husband-Pravinkumar and her
in-laws have demanded Rs. 20,000/. At that time, she
was sent back to her matrimonial house.
This witness has also deposed that he came to
know about this incident, when he went to Kanesara to
attend a condolence meeting. Upon being made aware
about the incident, he came at the accused’s house and
witnessed that her daughter was burnt. He came to
know through neighbours that when his daughter went
to take shower, she was strangled. Thereafter, she was
taken to the rear room of the residence where she was
burnt alive by pouring kerosene over her. His
deposition is not corroborated by any other
independent witness nor gets support from medical
evidences either.
Now, according to PW-2-BHagwandas
Virchandbhai, who happens to be brother of the
complainant and uncle of deceased Ramilaben, the
Page 16 of 38
HC-NIC Page 16 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
marriage of Ramilaben was solemnized with A1
Pravinkumar, who sold her gold chain some 3-4 months
after their marriage. When Ramila informed them about
the incident, her father consoled her and told her that
they will buy for her a new gold chain. Thereafter, in-
laws of Ramilaben told her to bring Rs. 20,000/ from
her parents. When Ramilaben told these things to her
father, she was sent her back to her matrimonial house,
after persuasions, and thereafter, this witness received
news that Ramilaben was burnt. Nowhere from his
deposition, it culls out that the accused persons have
strangulated Ramilaben and burnt her alive after
pouring kerosene over her.
And whereas, PW-3 Kantibhai Ambaram in his
deposition has stated that Ramilaben did not have a
happy married life, as the accused persons were
harassing her. They also made a demand of Rs.
20,000/ from her and when she informed her father
about the same, he sent her back to matrimonial
house, after persuasion and thereafter, he received
Page 17 of 38
HC-NIC Page 17 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
news that Ramilaben has got burnt. When this witness
went at Ramila’s matrimonial house, he witnesses that
Ramila was lying in burnt condition. This witness has
not testified that any of the accused persons have
strangled Ramilaben and burnt her, after pouring
kerosene. PW-4 Manubhbai Haribhai Barot is panch
witness of Inquest Panchnama of the dead body and
PW-5 Kanubhai Haribhai is panch to the panchnama of
the scene of occurrence, and whereas, PW-6
Vijaykumar Rameshbhai Rami is panch to the Seizure
panchnama which was drawn while collecting burnt
clothes, carboy of kerosene, etc.
Analyzing deposition of Medical Officer-Manilal
Amthabhai Prajapati, who entered the witness box as
PW-7, it appears he performed postmortem on
deceased Ramilaben and observed second and third
degree burn injuries on her body; except heels and toes
of both the legs, fingers and fingertips of both hands.
No internal injuries were found on her body. This show
that Ramilaben succumbed to burn injuries sustained
Page 18 of 38
HC-NIC Page 18 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
by her, but it is not proved that she was strangled and
kerosene was poured on her to set her on fire.
Analyzing testimony of PW-8 Kanubhai Ramsilal,
this witness has stated that when he was sleeping in his
house on the day of incident, he heard noises coming
from the house of the accused who were indulged in
quarreling with the wife of Pravinkumar and therefore,
they were persuaded by him and Ramilaben was made
to sleep at Maheshbhai’s house. Even as per evidence
of this witness, it is not proved that the accused
persons had strangled Ramila and caused her death by
setting her on fire, after pouring kerosene on her.
PW-9 Ramabhai Manilal, PW-10 Maheshgiri
Kantigiri and PW-11 Lilaben Ramgiri have not
corroborated the case of prosecution in their respective
depositions, and therefore, they have been declared
hostile witnesses. Therefore, the prosecution has
clearly failed to prove that it was a case of homicidal
death.
Now, the question remains whether due to
Page 19 of 38
HC-NIC Page 19 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
demand of dowry by the respondents-accused, the
deceased took extreme step to end her life within a
period of seven years of her marriage so as to attract
Section 304B of IPC ?
Before proceeding any further, it would be apt to
first take note of the fact that here is a case which
admittedly is of unnatural death and the death has
taken within seven years of the marriage of the
deceased. Therefore, prior to considering the
prosecution case as well as defence pleaded, it is
desirable to extract the relevant provisions of Section
304B, which relates to dowry death :
“304B. Dowry death.–(1) Where the death of a
woman is caused by any burns or bodily injury or
occurs otherwise than under normal
circumstances within seven years of her
marriage and it is shown that soon before her
death she was subjected to cruelty or
harassment by her husband or any relative of
her husband for, or in connection with, any
demand for dowry, such death shall be called
‘dowry death’, and such husband or relative shall
be deemed to have caused her death.
Page 20 of 38
HC-NIC Page 20 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
Explanation.–For the purpose of this
sub-section, ‘dowry’ shall have the
same meaning as in Section of the
Dowry Prohibition Act, 1961 (28 of
1961).
(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.” The above
provision was inserted by Act 43 of 1986 and
came into force with effect from 19.11.1986.
There is no dispute about the applicability of the
above provision since the marriage and the
death occurred in the year 1994 and 1996
respectively.”
In order to convict an accused for the offence
punishable under Section 304B IPC, the following
essentials must be satisfied :
[a] the death of a woman must have been caused by
burns or bodily injury or otherwise than under normal
circumstances;
[b] such death must have occurred within seven years
of her marriage;
[c] soon before her death, the woman must have been
subjected to cruelty or harassment by her husband or
Page 21 of 38
HC-NIC Page 21 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
any relatives of her husband;
[d] such cruelty or harassment must be for, or in
connection with, demand for dowry.
When the above ingredients are established by
reliable and acceptable evidence, such death shall be
called dowry death and such husband or his relatives
shall be deemed to have caused her death. If the
above-mentioned ingredients are attracted in view of
the special provision, the court shall presume and it
shall record such fact as proved unless and until it is
disproved by the accused. However, it is open to the
accused to adduce such evidence for disproving such
conclusive presumption as the burden is unmistakably
on him to do so and he can discharge such burden by
getting an answer through cross-examination of the
prosecution witnesses or by adducing evidence on the
defence side.
Section 113B of the Evidence Act, 1872 speaks
about presumption as to dowry death which reads as
Page 22 of 38
HC-NIC Page 22 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
under:
“113-B. Presumption as to dowry
death.–When the question is whether a
person has committed the dowry death of a
woman and it is shown that soon before her
death such woman has been subjected by
such person to cruelty or harassment for, or
in connection with, any demand for dowry,
the Court shall presume that such person
had caused the dowry death.
Explanation.–For the purposes of this
section, ‘dowry death’ shall have the same
meaning as in Section 304B of the Indian
Penal Code (45 of 1860).”
As stated earlier, the prosecution under Section
304B IPC cannot escape from the burden of proof that
the harassment or cruelty was related to the demand
for dowry and such was caused “soon before her
death”. In view of the Explanation to the said section,
the word “dowry” has to be understood, as defined in
Section 2 of the Dowry Prohibition Act, 1961 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–
Page 23 of 38
HC-NIC Page 23 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
(a) by one party to a marriage to the other
party to the marriage; or
(b) by the parent of either party to a
marriage or by any other person, to either
party to the marriage or to any other
person, at or before or any time after the
marriage in connection with the marriage
of the said parties, but does not include
dower or mahr in the case of persons to
whom the Muslim Personal Law (Shariat)
applies.”
To attract the provisions of Section 304B, one of
the main ingredients of the offence which is required to
be established is that “soon before her death” she was
subjected to cruelty or harassment “for, or in
connection with the demand for dowry”. The expression
“soon before her death” used in Section 304B IPC and
Section 113B of the Evidence Act is present with the
idea of proximity test. In fact, learned senior counsel
appearing for the appellants submitted that there is no
proximity for the alleged demand of dowry and
harassment. With regard to the said claim, we shall
Page 24 of 38
HC-NIC Page 24 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
advert to while considering the evidence led in by the
prosecution. Though the language used is “soon before
her death”, no definite period has been enacted and
the expression “soon before her death” has not been
defined in both the enactments. Accordingly, the
determination of the period which can come within the
term “soon before her death” is to be determined by
the courts, depending upon the facts and
circumstances of each case. However, the said
expression would normally imply that the interval
should not be much between the cruelty or harassment
concerned and the death in question. In other words,
there must be existence of a proximate and live link
between the effect of cruelty based on dowry demand
and the death concerned. If the alleged incident of
cruelty is remote in time and has become stale enough
not to disturb the mental equilibrium of the woman
concerned, it would be of no consequence.
With these principles in mind, let us analyze
evidence led in by the prosecution. Marriage of
Page 25 of 38
HC-NIC Page 25 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
Ramilaben [since deceased] was solemnized with
Pravinkumar [A1]. Within seven years of their marriage,
Ramila died due to burn injuries on 31st December 1993
at her matrimonial home. Father of the complainant
lodged a complaint against the accused persons by
stating that before two months of the incident, when
his daughter Ramilaben visited them to attend a social
function at her elder brother’s home, she told that her
husband had sold the gold chain to which, the
complainant consoled her by stating that they will buy
a new gold chain for her and thereby she was sent back
to her matrimonial home with an advise to live in a
peaceful manner. However, before some two weeks of
the incident, daughter of the complainant visited her
parental home, at that time also, she in presence of his
brother, complainant’s wife and brother Bhagwandas
informed that a demand of Rs. 20,000/ was made by
the accused persons and she was instructed to bring
this amount from her father, as they have purchased a
new house and they were in need of money. She
Page 26 of 38
HC-NIC Page 26 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
asserted that if she would not manage the amount, she
would not be allowed to stay at her matrimonial home.
After deliberation on the issue by the family members,
Ramilaben was sent back to her matrimonial home
without managing the funds demanded by the accused,
after some three days of her arrival at parental home.
Initially, she refused to go back to her matrimonial
home, however, on an assurance from the complainant
that the issue will be resolved, she went back. On 31st
December 1993, he was informed that Ramila was
burnt and therefore, the complainant himself, his
brother-Bhagwandas, Vishnubhai and Amratbhai
Shankarbhai hired a vehicle to reach at the residence of
Ramilaben. When they reached at the house, dead
body of Ramilaben was lying in the hall. Her external
clothes were all burnt. She had sustained severe burn
injures all over her body and succumbed to death, and
when asked, the respondents told that there was some
altercation, the previous night, and as a result thereof,
Ramila has taken such an extreme step. However, this
Page 27 of 38
HC-NIC Page 27 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
witness came to know from the neighbours that
Ramilaben was strangled by her in-laws and kerosene
was poured over her body and she was set on fire at
about 7:00 hours in the morning. The complainant also
came to know about the quarrel which went on all
throughout the night at the residence of her daughter,
and hence, a complaint was lodged by him against the
accused persons. PW-1, who happens to be father of
the deceased Ramila has stated before the Court that
marriage life of his daughter in the beginning was quite
well, but thereafter, she was subjected to cruelty and
harassment at the hands of the respondents.
If we consider averments made by the
complainant in his complaint, it appears that nowhere it
is stated by him that any cruelty was perpetrated upon
his daughter by the respondents-accused persons.
There is material contradiction in the testimony of
these witnesses and complaint lodged before the
Police. Before the Court, the complainant has stated
Page 28 of 38
HC-NIC Page 28 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
that when his daughter Ramilaben came at her parental
home on the festival of Diwali, he was informed that
gold chain given to her was sold out by her husband ie.,
A1. This statement does not get support from any of
the independent witnesses. In fact, he has admitted in
his cross examination that gold chain was given to her
by the respondents. This witness has further stated that
at a social function arranged at his elder brother’s
place, Ramilaben was invited where she informed of
demand of Rs. 20,000/ made by her mother-in-law.
There is nothing on the record that at what time, or on
which date, the alleged demand of Rs. 20,000/ was
made by the accused persons. There is material
contradiction in the deposition of this witness with
other prosecution witnesses on the aspect of demand
of dowry. The complainant further says that Ramila had
informed about such demand in presence of his brother
Bhagwandas Virchand, while his brother feigned
ignorance of any such talk. Thus, deposition of
complainant is quite contrary to his brother ie., PW-2. It
Page 29 of 38
HC-NIC Page 29 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
is accepted by this witness that Ramila and daughter of
A2 A3 were married under satta system [exchange
system] prevailing in their custom where there is no
system of dowry in their community. Thus, when there
is no custom of dowry, indisputably there was no talk in
respect of demand of any dowry at the time of her
marriage with A1. Further, evidence is available to the
effect of second marriage of Ramilaben with
Pravinkumar [A1], as she sought divorce from her
previous husband due to there being no harmonious
relations with him. From the testimony of father, it is
difficult to accept the version of demand of Rs.
20,000/ by the accused persons. PW-2 Bhagwandas,
who is brother of the complainant, has tried to support
the prosecution by saying that Ramila had informed
him that accused persons have changed their
residence, and therefore, her mother-in-law demanded
an amount of Rs. 20,000/ from her. This witness has
stated that Ramila has informed this witness that
demand of Rs. 20,000/ was made to her by the
Page 30 of 38
HC-NIC Page 30 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
accused persons. As per deposition of the complainant,
demand of Rs. 20,000/ was made by the accused
persons from his daughter Ramila and Ramila informed
him about the same in presence of his brother. While
this witness ie., PW-2 has not stated that Ramila had
informed anything in respect of demand of Rs.
20,000/. Thus, deposition of this witness is contrary to
the deposition of the complainant. This witness has also
admitted that in their community, there is a custom of
satta system, but there is no custom of dowry and
therefore also, it would be difficult to accept the
allegation of demand of dowry of Rs. 20,000/ made by
the accused persons. In fact, this witness in his cross
examination has admitted that whenever Ramilaben
used to visit his house, no complaint in respect of any
cruelty or harassment was ever made by her. This
witness has also admitted in his cross examination that
in a religious function “Katha” which was arranged at
his home, Ramila was invited and at that time, no
complaint of any nature was made by her. Whereas,
Page 31 of 38
HC-NIC Page 31 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
the complainant says that in a social function at his
brother’s home, Ramila was invited where she stated of
demand of Rs. 20,000/ made by her in-law, while his
brother Bhagwandas says that there was no talk with
the deceased. Hence, demand of dowry of Rs. 20,000/
appears to be doubtful, so also the testimony of both
these brothers appears to be contrary to each other.
Analyzing further, PW-3 Kantibhai Ambaram has stated
that Ramila was subjected to cruelty by the accused
persons, and therefore, she was visiting her parental
home. This witness has stated that when he visited
Khali, Ramilaben was at her parental home where this
witness was informed by the deceased that she was
subjected to cruelty by her in-laws. In fact, the
complainant or his brother Bhagwandas have never
stated anything about harassment or cruelty meted out
to Ramila at the hands of A2 A3. Thus, testimony of
this witness is completely contrary to the deposition of
complainant and his brother-Bhagwandas. This witness
says that he was informed by deceased Ramilaben that
Page 32 of 38
HC-NIC Page 32 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
frequent demand of money was made by the accused
persons. He has further deposed that before 2-3 days of
incident, Ramila had paid her visit at village Khali and
at that time also, it was informed by her that a demand
of Rs. 20,000/ was made by her in-laws. Here, this
Court would like to divert its attention to the deposition
of complainant and his brother PW-2, as they have
never stated in their testimonies that before 2-3 days of
the incident, Ramila came at village Khali and informed
about the demand of dowry of Rs. 20,000/ made by
her in-laws. Therefore, it can be said that this witness
has given contrary deposition. Complainant himself and
PW-2 have stated that there was a demand made for
the first time from deceased Ramilaben, while this
witness states that there was a frequent demand of
money from her in-laws. Therefore, it would be difficult
to rely upon such a contradictory statements made by
this witness. Thus, from the testimonies of these three
witnesses, it is not proved by the prosecution that any
physical or mental cruelty was given by the accused
Page 33 of 38
HC-NIC Page 33 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
persons and/or demand of Rs. 20,000/ was made by
them. The other witnesses viz., PW-4 Manubhai
Haribhai Barot is panch witness to the Inquest
panchnama of the dead body; PW-5 Kanubhai Haribhai
is panch witness of the place of incident; PW-6
Vijaykumar Rameshbhai Rami is panch to the Seizure
panchnama. From their evidence, it is not proved that
any physical or mental cruelty was given to the
deceased Ramilaben. Medical Officer Manilal Amthabhai
Prajapati who entered the witness box at PW-7 has
stated that due to burn injuries sustained by the
deceased, she succumbed to death.
From the evidence produced on record by the
prosecution, it is not proved beyond reasonable doubt
that due to dowry demand made by the accused [in-
laws] or due to physical and mental cruelty to her,
Ramila committed suicide. PW-8 Kanubhai Ramsilal has
stated that on the previous night of the incident, there
was some altercation at the residence of the accused
persons and upon persuasion, Ramilaben was adviced
Page 34 of 38
HC-NIC Page 34 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
to sleep at the residence of Mahesbhai. From the
deposition of this witness, it cannot be stated that any
physical or mental cruelty was given to Ramila; except
that there was altercation amongst the family members
in the neighbourhod. This witness has not stated about
there being any frequent quarrels with the deceased
Ramilaben and/or any cruelty given to her, nor any
evidence has come on the record through this witness
of any demand of dowry made by the accused persons.
More so, PW-8 Kanubhai Ramsilal refused to accept that
Ramila went to sleep at his house on the previous
night; as stated above. PW-9 Ramabhai Manilal; PW-10
Maheshgiri Kantigiri and PW-11 Lilaben Ramgiri have
not supported the prosecution case and they have
turned hostile, and therefore, no benefit can be given
to the prosecution by referring their testimonies before
the Court, though they were independent witnesses.
Further, it appears from the testimony of PW-12
Laxman that before registering the complaint, he had
already started investigation on receiving an order from
Page 35 of 38
HC-NIC Page 35 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
PSO on 31st December 1993. He has informed PSO by
wireless message about accidental death and inquest
report was prepared together with panchnama of the
scene of offence by calling two panchas.
Thus, from the evidence as discussed hereinabove,
no case is made out by the prosecution under Section
304B or under Section 498A IPC, as the requirement of
law is that the harassment and cruelty should be “soon
before her death” and no evidence has come on record
for this purpose. In order to bring home conviction
under Section 304B IPC, it will not be sufficient to only
lead evidence showing that cruelty or harassment had
been meted out to the victim, but that such treatment
was in connection with the demand of dowry. The
phrase, “soon before her death”, no doubt is an elastic
expression and can refer to a period either immediately
before her death or within a few days or even a few
weeks before it, but the proximity to her death is the
pivot indicated by that expression. The legislative
intent in providing such a radius of time by employing
Page 36 of 38
HC-NIC Page 36 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
the words “soon before her death” is to emphasis the
idea that her death should, in all probabilities, has been
the aftermath of such cruelty or harassment.
We have given our careful and thoughtful
consideration to the rival contentions putforth by either
side and have also scrutinized through the entire
material available on the record; including the
impugned judgment. It appears that the prosecution
has failed to prove its case beyond reasonable doubt
against the accused persons and the learned Additional
Sessions Judge, Mehsana was justified in doubting the
veracity of the prosecution case and recorded finding of
acquittal of all the respondents herein. The said finding
in no way suffers from vice of perversity.
In light of the above discussions, we find no
compelling substantial reason to interfere with the
judgment dated 28th September 1994 passed by the
learned Additional Sessions Judge, Mehsana in Sessions
Case No. 93 of 1994.
Page 37 of 38
HC-NIC Page 37 of 38 Created On Mon Jan 15 23:46:40 IST 2018
R/CR.A/46/1995 CAV JUDGMENT
Resultantly, the present Appeal fails and is,
accordingly dismissed. Bail bonds stand cancelled.
[SMT. ABHILASHA KUMARI, J.]
[B.N. KARIA, J.]
Prakash
Page 38 of 38
HC-NIC Page 38 of 38 Created On Mon Jan 15 23:46:40 IST 2018