Bombay High Court Bapu Sukhdeo Jagtap-vs-State Of Maharashtra on 30 January, 1991
Equivalent citations:1992 (2) BomCR 450
Author: A Mane
Bench: B Deshmukh, A Mane
A.D. Mane, J.
1. The appellant-accused No.1, alongwith his parents and the married sister was tried before the learned trial Judge in connection with an unnatural death of his wife Kalindi, on August 17, 1987 for offences under sections 302, 201, 498A read with section 34 Indian Penal Code. The learned trial Judge has convicted the appellant alone for these offences and has imposed upon him sentence of life under section 302 Indian Penal Code, rigorous imprisonment for five years under section 201 Indian Penal Code, and rigorous imprisonment for two years under section 498A Indian Penal Code, with direction to run the substantive sentences concurrently. It is from that judgement of the learned trial Judge, the appellant has preferred this appeal.
2. The synoptical resumption of the prosecution case is as follows :
The appellant married Kalindi some 15 months before her death. She is daughter of PW 3 Malhari and PW 11 Babaibai of village Sarole. In his marriage the appellant was given cash of Rs. 10,000/- and household articles such as cot and mattress, besides incurring marriage expenses by Kalindi’s parents. After the marriage Kalindi was residing with the appellant and his parents at village Kolgaon in Tahsil Shrigonda but she was subjected to harassment at the hands of the appellant since she was not able to bring bicycle and radio for him from her parents.
3. The family of the appellant is agriculturists. They work in the field. On August 17, 1987, the parents of the appellant did not find Kalindi in the house in the evening. A search was made by them but she was not found in the village. On the next day, the appellant’s father went to the house of Kalindi and enquired with her parents, if Kalindi had come there. Kalindi did not go to her parents place. Thereupon, Kalindi’s parents accompanied by their relations PW 2 Walmik, PW 5 Narayan and PW 10 Sukhdeo came to village Kolgaon and started searching wells in the field. There is a well in the field of the appellant. The search in the well was made and dead body was found tied with rope rapped in a gunny bag with a heavy stone inside it.
4. The moment the dead body was noticed in the well, it was the prosecution case that the appellant confessed before PW 5 Narayan and PW 10 Sukhdeo that he killed Kalindi and threw her into the well. It may, however, be stated that no sooner than the dead body of Kalindi was taken out of the well, her father PW 3 Malhari sent his relation PW 2 Walmik to report the police at Shrigonda. Walmik accordingly made his report (Ex.13) and came back alongwith police PW 12 PSI Kulkarni, then recorded complaint (Ex.15) of PW 3 Malhari and sent it to police station for registration of crime. PW 9 Police Head Constable Sampt accordingly registered the crime at Cr. No. 121/87 although earlier to that accident case was registered at Cr. No. 32/87 on the report received from Walmik. The opinion of the Doctor was obtained as to the cause of death and the Doctor opined that the death was caused due to asphyxia due to pressure on the neck.
5. It may be stated that during investigation, according to the prosecution, earth from the place in the field shown by the appellant from where the stone was removed was seized and so also the mud noticed on the banian of the appellant and it was found to be the same as per the report of the Chemical Analyser (Ex.17). A few pieces of bangles were also collected from the field of the appellant from where the stone was seized.
6. It may further be stated that it was revealed from the statement of PW 3 Malhari and statement of his wife PW 11 Babaibai that the deceased was subjected to cruelty on account of their failure to fulfill the demand of dowry in the form of cycle and radio by the appellant.
7. Indeed, there is no direct evidence but the material evidence relied on by the prosecution is in the nature of extra-judicial confession of the accused to PW 5 Narayan and P.W. 10 Sukhdeo and the circumstantial evidence in the form of recovery of dead body from the well in his field and pointing out by him the place from where pieces of bangle and mud similar to the mud noticed on his banian have been recovered.
8. Shri Sabnis, the learned Counsel appearing for the appellant has taken us through the entire evidence of the prosecution. Shri Sabnis, the learned Counsel urged that the extra-judicial confession by its very nature is a weak type of evidence and no reliance can be placed on that piece of evidence because it is neither voluntary nor truthful. It is, therefore, submitted that if the extra-judicial confession is excluded from the consideration, there is absolutely no circumstantial evidence to connect the appellant with commission of any offences of which he has been convicted. It has further been contended that the conviction under section 498A of Indian Penal Code is not proper since the material evidence on the question of cruelty or harassment to the deceased on account of alleged demand of the appellant for bicycle and radio after the marriage is unworthy of credence.
9. Where in a capital case, the prosecution demanded a conviction of the accused primarily on the basis of his extra-judicial confession, it becomes necessary to examine the evidence of witnesses in that behalf critically, by applying a double test (i) whether the confession was perfectly voluntary, and if so, (ii) whether it was true and trustworthy. That, therefore, takes us to the testimonies of PW 5 Narayan and PW 10 Sukhdeo. PW 5 Narayan as well as PW 10 Sukhdeo are the witnesses closely related to the deceased and her parents PW 3 Malhari and PW 11 Babaibai. They have accompanied PW 3 Malhari and PW 11 Babaibai to the village Kolgaon, the place where the appellant resides, for making search of Kalindi. Now, PW 5 Narayan’s version is that he, PW 10 Sukhdeo and the appellant and his sister went to the well which is on lower level of the field. PW 3 Marathi and others, however went towards the well which is on higher level in the field of the appellant. He has stated that, “We all peeped into the well…. We saw the pink colour sari at the bottom of the well. I, therefore, called Malhari and told that body appears to be in the well…” It is at that point of time, it has been stated by him that the appellant confessed his guilt, saying that, “…he has committed murder of Kalindi by pressing her neck and has disposed of the dead body by throwing it into the well” and so saying, according to him the appellant went away.
10. It may be pointed out from his evidence that the alleged confession was made by the appellant to him alone and that too before the dead body could be taken out of the well when PW 3 Malhari was away at other well.
11. PW 10 Sukhdeo to some extent has stated similarly. According to him also, he PW 3 Narayan, the appellant and his sister (accused No. 4-Sumanbai) went to the well on lower level side of the field, whereas Malhari, Digambar and the accused Nos. 2 and 3 went to the other side of the field. He has stated that, “… We pipped into the well and found pink colour saree at the bottom of the well. The accused No.1 confessed before me and Narayan that he has committed murder by pressing the neck of his wife Kalindi, and has disposed of her body by throwing into the well….” “According to him, so saying the appellant went way. According to him, in the meanwhile, Narayan called Malhari and thereafter, the dead body was taken out of the well.
12. An extra-judicial confession is generally made to a person in whom the accused confides. PW 5 Narayan as well as PW 10 Sukhdeo claims to be distant maternal uncles of the deceased Kalindi. The extra-judicial confession to the distant relations of the deceased seems improbable in view of the proximate relationship of such witness to the deceased. It is difficult to accept that the appellant-accused No.1 would repose utmost confidence in them so as to confess the guilt before such witnesses. Such sort of evidence can be procured and manoeuvered without any difficulty and thus would be unworthy of belief and we find that the evidence of PW 5 Narayan and PW 10 Sukhdeo is not an exception to this general rule of the human conduct.
13. It is common ground that PW 2 Walmik was asked by PW 3 Malhari to go to the police station at Shrigonda to report about the incident and PW 2 Walmik has made his report (Ex.13). Not only that but on arrival of the PSI PW 12 Kulkarni, Malhari’s complaint (Ex.15) was recorded. Most prominent circumstance is, however, that there is no mention either in the report (Ex.13) or the complaint (Ex.15) about the extra-judicial confession made by the appellant on that day before or after the dead body of Kalindi was taken out of the well. If it were a case that the appellant confessed either before PW 5 Narayan or PW 10 Sukhadeo before the dead body was actually taken out of the well and before Walmik was sent to police, it was but quite natural on part of these witnesses to tell about it to PW 3 Malhari and PW 11 Babaibai, in particular, as to what the appellant confessed before them. It is, however, admitted position that neither of them disclosed that fact to any one present near the well and this can be seen from what they have deposed to in their evidence.
14. PW 5 Narayan has, stated that even on hearing from the accused that he killed Kalindi and threw her dead body in the well, neither he nor anyone who accompanied him near the well, obstructed or apprehended the accused No.1 when he went away from the well. Not only that but he has stated that,“….None of us informed the police that the accused No.1 is guilty of causing murder of Kalindi…” He has further stated that,”…I did not disclose the confession of Babu till police recorded my statement on 19.11.1987…” PW 1 Sukhdeo has stated that, “….I did not disclose and narrated to complainant the declaration made by the accused No.1 in respect of the confession about death of Kalindi…” According to him, the witness Narayan has also not spoken about confession of the appellant to anybody. He has also further stated that, “…I did not disclose about the confession of the accused No.1 to anybody from the villagers, who had gathered near the well….”
15. In this context, it is relevant to state what Malhari has to say when he reached the well on finding the dead body of his daughter. PW 3 Malhari in his cross-examination has stated that when the dead body was taken out of the well, the accused did not answer to him when he questioned him as to how it so happened. According to him, Narayan and Sukhdeo were also present at that time. This statement of Malhari sufficiently discredit the claim of Narayan and Sukhadeo suggesting that before Malhari could come to the well, the appellant went away by making aforesaid confessional statement. It is perfectly clear from the evidence of Malhari Moreover, it is also clear from the evidence of Malhari that even though he was questioned by Malhari as to how the incident happened, the appellant did not answer and kept mum. That conduct of the appellant in a given circumstance goes contrary to the claim of these witnesses that he confessed his guilt before them.
16. The evidence of PW 10 Sukhdeo goes to show that on arrival of the PSI, he was making enquiry for about 10-15 minutes with the persons present including Malhari and it was, thereafter, the complaint (Ex. 15) was reduced to writing. Failure of these material witnesses to disclose the alleged confession of the guilt of the appellant to the persons present and parents of the deceased Kalindi, in particular, renders their evidence unworthy of credence. That conduct of the witnesses become unnatural. That part of their evidence thus suffers from inherent improbability.
17. There is another circumstance which cannot escape our notice. Malhari in his deposition has stated that after the dead body of Kalindi was taken out of the well and before return of PW 2 Walmik from the Police Station, he had discussion with Narayan and Sukhdeo, for about ten minutes. For instance, he has stated in cross that “…I discussed about the incident with the persons with me. Discussion came to an end within ten minutes. We decided to proceed and to take criminal action in our discussion…” This part of his evidence is also corroborated by Narayan and Sukhdeo. What was the discussion, is however, not known but it can reasonably be inferred that the discussion would have been as to what should be done when Kalindi died in suspicious circumstances.
18. The law on extra-judicial confession is well settled. The unambiguous extra-judicial confession possesses high probative value and force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession the Court has to be satisfied that it is a voluntary one and does not appear to have been brought about in suspicious circumstances to circumvent section 25 and 26 of the Evidence Act, and has to look into surrounding circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. Having scrutinised the material evidence of the prosecution it is incredible to believe that such confession was made by the appellant before the witnesses and that too before police recorded their statements. It is too incredulous to believe that part of evidence of the witnesses. We, therefore, find that alleged extra-judicial confession seems to have brought about in suspicious circumstance and that too in the police statement so as to circumvent legal bar for its admissibility. We, therefore, safely reach to the conclusion that no reliance can be placed on that part of evidence of material witnesses in support of the alleged extra-judicial confession.
19. Although the prosecution tried to rely on the circumstantial evidence in the shape of recovery of few pieces of bangles from the field or recovery of the stone and /or the mud which tallied with the mud found on the banian of the appellant, is our opinion, none of these circumstances is capable of disclosing an incriminating fact pointing to the guilt of the accused. The pieces of bangles are usually found in the field which is under cultivation. There is no evidence to fix the identity of these bangles as the broken pieces of bangles are of Kalindi. So also presence of mud on banian of the appellant is quite natural as he used to work in the field. The learned trial Judge has also not kept any reliance on this type of circumstantial evidence. There is, therefore, no into of evidence to connect the appellant with the actually committing the murder of his wife.
20. In these circumstance, the conviction of the appellant under section 302 Indian Penal Code can not possibly be sustained. In consequence, the further charge for the disappearance of evidence of the offence of murder as levelled against the appellant must also fail. However, the manner in which the dead body was found rules our any possibility of the deceased either committing the suicide or accidentally. That is so because there has been no challenge to that part of prosecution evidence which positively proves that the deceased died not in normal circumstances.
21. That takes us to consider the question of cruelty or harassment to the deceased on account of her failure to bring certain articles from her parents by way of dowry. There is a consistent version of PW 3 Malhari, his wife PW 11 Babaibai and PW 5 Narayan as well as PW 10 Sukhdeo that the deceased Kalindi was subjected to cruelty on her failure to bring from her parents bicycle and radio. The evidence in this behalf appears to be cogent and reliable. PW 3 Malhari has stated that in the marriage he was paid Rs.10,000/- to the accused No.1 by way of dowry. He has also presented one cot, mattresses and one wrist watch. Not only this but be has also incurred the marriage expenses. Further he has stated that Kalindi had come to his house after Diwali of 1987. She stayed with him for about a week. At that time Kalindi told him and his wife that the accused No.1 was asking to bring bicycle and radio for him. In this context, the reaction of Malhari will have to be stated. He has stated that, on hearing that from Kalindi, he contacted the accused No. 1’s father and told him what his daughter Kalindi had informed him. On that, the accused’s father had promised him that he would ask his son not to demand such articles, but unfortunately again Kalindi made a similar compliant to Malhari after two months by stating that her husband has demanded radio as well as bicycle. According to him, she has also complained that she was again ill-treated and insulted in the house of the accused. Malhari passified her by compromising that he would give those articles when his financial position improves but it appears that there was no change in the attitude of the accused No.1. On the contrary Kalindi has informed her parents that she was being threatened to be killed if no articles were given to him. The testimony of Malhari has also been supported by his wife and PW 3 Narayan and PW 10 Sukhdeo about the demand of these articles by the accused and ill-treatment and harassment to her.
22. It is sought to be contended on behalf of the appellant that admittedly there is a bicycle in the house of the accused as well as the radio and it is unlikely that the accused No.1 would have demanded such articles after his marriage. The argument is devoid of any merit. If may be stated that the appellant is not the only son to his parents. There are other family members in his house. Therefore, there is every possibility for the appellant to have his own bicycle and radio in his house.
23. It is also contended on behalf of the appellant that no complaint of any sort was made by the parents or any nearer relation of the deceased about the ill-treatment metted out to her during her life time on account of so called demand, and therefore, no reliance can be placed on such evidence. This contention is also difficult to accept. Malhari and his wife as well as other witnesses have explained that in order to maintain relations in between Kalindi and the accused No.1 they did not think it proper to complain against the accused No.1 to police in regard to that demand. The conduct of Malhari complaining about the demand by the appellant to his father, in our view, lends assurance to that part of evidence of these witnesses. Unless there was demand from the accused No.1 to his father. That part of the testimonies of these witnesses is quite consistent, cogent and unimpeachable and deserves credence. The learned trial Judge has also recorded his finding that the deceased Kalindi was subjected to cruelty and harassment on account of failure of the parents to give him those two articles. We have no hesitation to concur with the said finding.
24. An attempt has been made to contend that the marriage has taken place some 15 months before the date of incident. There is no evidence to show that there was any agreement to offer these articles by way of dowry to the accused No.1 and, therefore, according to the learned Counsel for the appellant the evidence of these witnesses suffers from improbability. We do not find any improbability in the evidence of these witnesses merely because there is no evidence that at the time of marriage there was any agreement to offer these articles by way of dowry. The word ‘dowry’ has been defined under the Dowry Prohibition Act, 1961 and 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 a marriage or to any other person, at or before or after the marriage….. Therefore, it is not necessary that there should be any agreement at the time of marriage to give any property. The demand for the property even after the marriage is enough and in the given case, the evidence is quite clear to establish the fact that the appellant had demanded those articles by way of dowry after the marriage, and as on her failure to bring those articles the deceased was subjected to cruelty or harassment by the appellant.
25. We have already found that part of material witnesses in support of alleged extra-judicial confession is not acceptable and in absence of any further cogent and reliable evidence, the conviction of the appellant under section 302 and 201 Indian Penal Code cannot be sustained. But on close scrutiny of the evidence on the point of cruelty and harassment the evidence is acceptable and as such the conviction of the appellant under section 498A Indian Penal Code can be upheld.
26. The matter, however , does not rest here. We have observed earlier that there is positive indication in the prosecution evidence that the death was not either suicidal or accidental. It necessarily means the death has occurred not in the normal circumstances. In our opinion, the additional provision of law as laid down in section 304-B comes into play on the facts and circumstances of the case. Section 304-B was inserted by Dowry Prohibition (Amendment) Act, 1986 with a view to combat the menarce of dowry death. It lays down that when a death of 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.
27. The explanation to the section provides that ‘dowry’ for the purposes of this section shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 which defines ‘Dowry’ as follows :
“2…….. ‘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 dowry or Mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.”
In order to achieve that object of the Dowry Prohibition Act new section 113-B in Evidence Act was introduced to raise presumption on the ‘dowry death’ and it reads as 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 had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, then the Court shall presume that such person has committed the dowry death”.
28. The meaning of ‘Cruelty’ for the purposes of this section has to be gathered from the language as found in section 498A of Indian Penal Code and as per that section ‘cruelty’ means:
“(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
It is, therefore crystal clear that the provisions of section 304B of Indian Penal Code would be attracted in a case where:
i. The death of woman should be caused by burns or bodily injury or otherwise than that under normal circumstances.
ii. Such death should have occurred within seven years of her marriage,
iii. She must have been a subject to cruelty or harassment by her husband or any relative of her husband,
iv. Such cruelty or harassment should be for or in connection with the demand of dowry.
29. Having seen as above the essential ingredients of offence punishable under section 304B of Indian Penal Code, it goes without saying that it is not necessary for the prosecution to establish the actual participation of the accused in causing the death of his wife. A reference may be had to a decision in case of Vadde Rama Rao v. Andhra Pradesh, 1990 Cr. L.J. 1666. While considering the scope of the provisions of section 304B Indian Penal Code has observed;
“Actual participation of the accused or his relative in commission of offence is not required to be proved in the light of essential ingredients of section 304B of Indian Penal Code and section 113B of Indian Evidence Act…”
Section 113B of Evidence Act, lays down that if soon before the death such woman has been subjected to cruelty or harassment for or in connection with any demand of dowry then Court shall presume that such person has committed dowry death. The meaning of ‘cruelty’ for the purposes of this section has to be gathered from the language as found in section 498A of Indian Penal Code and as per that section, ‘cruelty, means, any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
30. As per the definition of ‘dowry’ any property or valuable security given or agreed to be given either at or before or any time after the marriage, comes within the meaning of ‘dowry’. It has been clearly established in the evidence of prosecution that the deceased Kalindi was subjected to ‘cruelty’ on her or her parents’ failure to meet with the demand of the appellant for bicycle and radio. Assuming that section 304B and 498A of Indian Penal Code are mutually exclusive but cruelty envisaged in section 498A Indian Penal Code is common ingredient for these offences, it may be that when once the cruelty envisaged in section 498A of Indian Penal Code culminates in dowry death of the victim, section 304B of Indian Penal Code alone is attracted and in that case no separate punishment under section 498A of Indian Penal Code is called for. That, however, makes no difference in the prosecution case. In conclusion, therefore, we find that the prosecution has been able to establish that this is a case of dowry death. In that view of the matter, the appellant would be liable to be punished under section 304B of Indian Penal Code although he can be acquitted under section 302 and 201 of Indian Penal Code for want of evidence.
31. We are conscious that no separate charge was levelled against the appellant under section 304B of Indian Penal Code. Even though, it can be said that the offence under section 304B is a lesser offence than one punishable under section 302 of Indian Penal Code, and he can be convicted and sentenced accordingly in the light of provisions of Section 222 of Criminal P.C We, however, caused the personal attendance of the appellant before us, with a view to offer him an opportunity of being heard in order to lead evidence in rebuttal of presumption which can be drawn against him under Section 113B of the Evidence Act.
32. The appellant when explained the above position has voluntarily stated, in presence of his Counsel, that he does not wish to lead any further evidence in defence or in rebuttal. Moreover, the learned Counsel appearing for the appellant also presented a purshis recording that the appellant does not desire to lead any evidence in rebuttal or in defence. In view of this, there is no difficulty in convicting the appellant under section 304B of Indian Penal Code.
33. The result is that the appeal is partly allowed. The conviction and sentence passed against the appellant under sections 302 and 201 of Indian Penal Code in hereby set aside. He is acquitted thereunder. Instead, the appellant accused No.1 is convicted under section 304B of Indian Penal Code and is sentenced to suffer rigorous imprisonment for seven years. The conviction and sentence of the appellant under Section 498A of Indian Penal Code, is however, maintained. The substantive sentences to run concurrently.