1 apeal629of04
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.629 OF 2004
1 Rajesh s/o. Rambhau Khankure,
aged about 30 years,
2 Rambhau s/o. Kisanji Khankure,
aged about 57 years,
3 Sau. Ushabai w/o. Rambhau Khankure,
aged about 45 years,
4 Umesh s/o. Rambhau Khankure,
aged about 24 years,
All residents of Ram Nagar Ward,
Hinganghat, Tah. Hinganghat,
District Wardha …. APPELLANTS
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station, Hinganghat,
District Wardha …. RESPONDENT
__
Shri M.I. Dhatrak, counsel for the appellants
Shri V. P. Maldhure, Additional Public Prosecutor for the respondent.
__
CORAM : ROHIT B. DEO, J.
DATE OF DECISION : 16.02.2018
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2 apeal629of04
ORAL JUDGMENT :
Challenge is to the judgment and order dated 29.9.2004,
rendered by the 3rd Adhoc Additional Sessions Judge Wardha, in
Sessions Trial 132 of 2002, by and under which, the appellants –
accused are convicted for offence punishable under section 498-A read
with section 34 of Indian Penal Code (IPC) and are sentenced to suffer
rigorous imprisonment for two years and to payment of fine of
Rs. 5000/- each and are further convicted for offence punishable under
section 304-B read with section 34 of the IPC and are sentenced to
suffer rigorous imprisonment for eight years.
2 Heard Shri M.I. Dhatrak, the learned counsel for the
accused and Shri V. P. Maldhure, the learned Additional Public
Prosecutor for the respondent / State.
3 The gist of the prosecution case is thus:-
Deceased Surekha entered into matrimonial alliance with
accused Rajesh on 9.5.2001. Concededly, Surekha suffered burn
injuries on 16.6.2001 and expired at 7.00 a.m. on 17.6.2001. Shri
Anandrao Thakare, the father of deceased (PW 12) lodged oral report
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3 apeal629of04
(Exh 70) at Hinganghat Police Station on 17.6.2001 at 7.30 p.m.. The
gist of which oral report is that deceased Surekha suffered taunts from
accused since she was of sallow complexion. On the basis of the said
report offence punishable under section 498-A, 306 and 304-B of the
IPC was registered at the Hinganghat Police Station. Record reveals,
that the relatives of the deceased Surekha were not satisfied with the
investigation conducted by the Hinganghat police and at their instance
the Criminal Investigation Department(CID) took over the investigation
some time in September 2001. The completion of the investigation led
to submission of the charge sheet in the Court of Judicial Magistrate
First Class, Hinganghat, who committed the proceedings to the
Sessions Court. The learned Sessions Judge framed charge (Exh 15)
for the offence punishable under section 498-A, 304-B read with
section 34 of the IPC. The accused abjured guilt and claimed to be
tried in accordance with law. The trend and tenor of the cross-
examination and the statements recorded under section 313 of the
Criminal Procedure Code reveal that the defence is of total denial.
4 Shri M.I. Dhatrak, the learned counsel for the accused
submits that the prosecution has failed to establish that the possibility
of the accidental death is excluded. Shri Dhatrak invites my attention
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4 apeal629of04
to the admissions attracted in the evidence of the Investigating Officer
(PW 19) Shri Vinod Wankhede, which is to the effect that the
Investigating Officer recorded the statements of Dr. Gupta and Dr.
Khandare on 1.2.2002 and the statements reveal that deceased Surekha
disclosed to Dr. Gupta and Dr. Khandare that she suffered accidental
burns while cooking. Shri M.I. Dhatrak then invites my attention to
injury report Exh. 44 which records alleged history of the injury as
accidental burns due to gas flames. The injury certificate Exh 44
further records that the condition of the patient was stable, conscious,
cooperative and oriented. The submission of the learned counsel is
that the failure of the investigating agency to record the dying
declaration of deceased Surekha, which dying declaration would have
thrown light on the cause of death, is fatal to the prosecution case. The
medical history is admissible in evidence, is the submission. Since the
deceased Surekha was stable, conscious and well oriented, the
possibility of somebody else having narrated the medical history is
remote, is the submission. Shri M.I. Dhatrak, would submit, that even
if, arguendo, it is assumed that the death of Surekha was suicidal, the
prosecution has not established the sine quo non ingredients of offence
punishable under section 498-A or 304(B) of the IPC.
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5 apeal629of04
5 In rebuttal, Shri V.P. Maldhure, the learned Additional
Public Prosecutor would submit that the evidence on record clinchingly
establishes that the deceased was subjected to cruelty within the
meaning of section 498-A of the IPC explanation (a) and (b). The
death concededly occurred within 38 days of the marriage and due to
burns. The cruelty to which the deceased was subjected was in
connection with a dowry demand, is the submission.
6 Section 304-B was introduced in the IPC by Dowry
Prohibition Amendment Act, 1986 with the avowed object of curbing
and eliminating dowry menace. Simultaneously, legislative changes
were effected in the Criminal Procedure Code, 1973 and the Indian
Evidence Act. Section 113-B was introduced in the Indian Evidence Act
and offence punishable under section 304 of IPC was made non-
bailable and triable by Sessions Court by appropriate amendment to the
Criminal Procedure Code.
Section 304-B of the IPC reads thus:
“304-B. Dowry death – (1) Where the death of a
woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within seven
years of her marriage and it is shown that soon before her
death she was subjected to cruelty or harassment by her
husband or any relative of her husband for, or in connection
with, any demand for dowry, such death shall be called
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6 apeal629of04
“dowry death”, and such husband or relative shall be deemed
to have caused her death.
Explanation – For the purposes of this sub-section,
“dowry” shall have the same meaning as in section 2 of the
Dowry Prohibition Act, 1961 (28 of 2961).
(2) Whoever commits dowry death shall be
punished with imprisonment for a term which shall not be
less than seven years but which may extend to imprisonment
for life.”
In view of the explanation to section 304-B which provides that
dowry shall have the same meaning in section 2 of the Dowry
Prohibition Act, 1961, it would be appropriate to reproduce section 2 of
the Dowry Prohibition Act, 1961:
“2. Definition of “dowry” – In this Act, “dowry” means
any property or valuable security given or agreed to be given
either directly or indirectly –
(a) by one party to a marriage to the other party to
the marriage, or
(b) by the parents of either party to a marriage or by
any other person, to either party to the marriage or to any
other person;
at or before (of any time after the marriage) (in connection
with the marriage of the said parties, but does not include)
dower or mahr in the case of persons to whom the Muslim
Personal Law (Sharirat) applies.
Explanation II – The expression “valuable security”
has the same meaning as in section 30 of the Indian Penal
Code (45 of 1860)”
Sub section 113-B of the Indian Evidence Act which provides for
statutory presumption reads thus:
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7 apeal629of04
“113-B. Presumption as to dowry death – When the
question is whether a person has committed the dowry death
of a woman and it is shown that soon before her death such
woman had been subjected by such person to cruelty or
harassment for, or in connection with, any demand for
dowry, the Court shall presume that such person had caused
the dowry death.
Explanation – For the purposes of this section, “dowry
death”, shall have the same meaning as in section 304-B of
the Indian Penal Code (45 of 1860)”
7 Be it noted, that in contradistinction with the statutory
presumption under section 113-A of the Indian Evidence Act, if the
prosecution establishes the ingredients of section 304-B of the IPC, the
court is obligated to take recourse to the statutory presumption under
section 113-B. The legislative intent that the court has no discretion in
invoking the statutory presumption is manifested by the employment of
expression “shall presume” in section 113-B in contradistinction with
employment of the expression “may presume” in section 113-A of the
Indian Evidence Act.
8 Axiomatically, the statutory presumption under section
113-B of the Indian Evidence Act is activated only if the prosecution
establishes the ingredients of section 304-B IPC beyond reasonable
doubt. The ingredients of section 304-B of the IPC are :
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(i) The death of the woman was caused due to burns,
bodily injury or due to unnatural circumstances.
(ii) The death should be within seven years of marriage.
(iii) It would be shown that soon before death the woman
was subjected to cruelty or harassment by her husband
or any relative of the accused.
(iv) The cruelty or harassment was for or in connection
with any demand of dowry.
Explanation to section 113-A of the Indian Evidence Act clarifies
that for the purposes of section 113-A cruelty shall have the same
meaning as in section 498-A of the IPC. Such an explanation or
clarification is not legislatively provided either in section 304-B of the
IPC or in section 113-B of the Indian Evidence Act. However, it is
judicially recognized that for the purposes of section 304-B of the IPC
and section 113-B of the Indian Evidence Act, the cruelty which the
prosecution is obligated to prove is the cruelty envisaged under section
498-A of the IPC. It would be apposite to refer to the enunciation of
law by the Apex Court in Smt. Shanti and another v. State of
Haryana, AIR 1991 Supreme Court 1226. The relevant observations
of which judgment read thus:-
“6. Now we shall consider the question as to whether the
acquittal of the appellants of the offence punishable
under S. 498-A makes any difference. The submission of::: Uploaded on – 21/02/2018 24/02/2018 00:48:11 :::
9 apeal629of04the learned counsel is that the acquittal under S. 498-A,
IPC would lead to the effect that the cruelty on the part
of the accused is not established. We see no force in this
submission. The High Court only held that S. 304D and
S.498-A IPC, are mutually exclusive and that when once
the cruelty envisaged in S. 498-A IPC culminates in
dowry death of the victim, S. 304-B alone is attracted
and in that view of the matter the appellants were
acquitted under S.498-A IPC. It can therefore be seen
that the High Court did not hold that the prosecution
has not established cruelty on the part of the appellants
but on the other hand the High Court considered the
entire evidence and held that the element of cruelty
which is also an essential of S.304-B IPC has been
established. Therefore the mere acquittal of the
appellants under S.498-A IPC in these circumstances
makes no difference for the purpose of this case.
However, we want to point out that this view of the
High Court is not correct and sections 304-b and 498-A
cannot be held to be mutually exclusive. These
provisions deal with two distinct offences. It is true that
“cruelty” is a common essential to both the sections and
that has to be proved. The Explanation to Section
498-A gives the meaning of “cruelty”. In S.304-B
there is no such explanation about the meaning of
“cruelty” but having regard to the common
background to these offences we have to take that
the meaning of “cruelty or harassment” will be the
same as we find in the explanation to S.498-A
under which “cruelty” by itself amounts to an
offence and is punishable. Under Section 304-B as
already noted, it is the “dowry death” that is punishable
and such death should have occurred within seven years
of the marriage. No such period is mentioned in S.498-A
and the husband or his relative would be liable for
subjecting the woman to “cruelty” any time after the
marriage. Further it must also be borne in mind that a
person charged and acquitted under S. 304-B can be
convicted u/ S.498-A without charge being there, if such
a case is made out. But from the point of view of::: Uploaded on – 21/02/2018 24/02/2018 00:48:11 :::
10 apeal629of04practice and procedure and to avoid technical defects it
is necessary in such cases to frame charges under both
the sections and if the case is established they can be
convicted under both the sections but no separate
sentence need be awarded under S. 498-A in view of the
substantive sentence being awarded for the major
offence under S.304-B.
(Emphasis supplied)
Pivotal issue in the present appeal is whether the prosecution has
proved beyond reasonable doubt that the deceased Surekha was
subjected to cruelty within the meaning of section 498-A of the IPC.
Concededly, Surekha suffered burns and expired within 38 days of the
marriage. If the prosecution establishes that she was subjected to
cruelty within the meaning of section 498-A of the IPC for or in relation
to demand for dowry, the statutory presumption under section 113-B
of Indian Evidence Act would stand activated.
9 Section 498-A of the IPC reads thus:-"498-A. Husband or relative of husband of a woman
subjecting her to cruelty - Whoever, being the husband or the
relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to file.Explanation - For the purpose of this section, "cruelty"
means-(a) any wilful conduct which is of such a nature as is
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11 apeal629of04likely to drive the woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or
physical) of the woman; or(b) harassment of the woman where such harassment is
with a view to coercing her or any person related to her to meet
any unlawful demand for any property or valuable scrutiny or is
on account of failure by her or any person related to her to meet
such demand.)"For the purposes of section 498-A of the IPC cruelty is statutorily
defined to mean such willful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) or
harassment, whether the harassment is with a view to coerce the
women or any person related to her to meet any unlawful demand for
any property or valuable security or is on account of failure by the
woman or any other person related to her to meet such demand.
10 It is well settled, and I need not burden the judgment with
the plethora of authorities enunciating the law, that the cruelty which
the prosecution must establish to bring home charge under section
498-A of the IPC is graver than the cruelty which may constitute a
matrimonial offence or which may furnish a ground for claiming relief
under a matrimonial law. Cruelty is statutorily defined. The use of the
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12 apeal629of04expression willful brings into play an element of mens rea. The willful
conduct must be of such nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health
(whether mental or physical) or harassment, where the harassment is
with a view to coerce the women or any person related to her to meet
any unlawful demand for any property or valuable security or is on
account of failure by the woman or any other person related to her to
meet such demand.
11 Axiomatically, the conduct must be willful, persistent and
continuous. Behavioral aberrations which may constitute cruelty for
the purposes of matrimonial law may not constitute cruelty for the
purposes of section 498-A of the IPC. The explanation (b) of section
498-A taken within its sweep harassment, with a view to coerce the
women or her relatives to fulfill an unlawful demand. The legislative
intent is that the harassment must be actuated by an intention of
coercing the woman or her relatives to fulfill an unlawful demand. The
prosecution is obligated to prove not only that a demand was made but
to further prove that the demand was accompanied by harassment or
illtreatment.
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13 apeal629of0412 The evidence on record must be tested on the anvil of the
statutory provisions referred to supra.
13 The First Information Report dated 17.6.2001 lodged by
PW 12 Anandrao Thakare, the father of the deceased is conspicuously
silent on any demand for dowry. The First Information Report recites
that the deceased Surekha suffered taunts due to her sallow
complexion and that she apprehended danger to her life from accused.
The prosecution has examined as many as twenty witnesses to bring
home the charge under section 498-A and 304-B of the IPC. The
material witnesses from the perspective of the prosecution are PW 1
Shrirang Kolte, PW 4 Shankare Mule, PW 11 Baynabai Thakre who is
the grandmother of the deceased, PW 12 - Anandrao Thakre, the father
of the deceased, PW 13 Subhadrabai Thakre, the mother of the
deceased, PW 14 Diwakar Thakre, the uncle of the deceased and PW
15 Pinglabai Karkade a friend of the deceased Surekha. The
submission of the learned APP Shri V.P. Maldhure is that testimonies of
these witnesses conclusively establish that the deceased Surekha was
subjected to cruelty and that the cruelty was for or in relation to dowry
demand.
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14 apeal629of0414 PW 1 Shrirang Kolte is examined to bring on record that
during the marriage settlement talks accused Rambhau demanded gold
chain of 20 grams, a gold ring of 6 grams, clothes of the bridegroom
and expenses for two ST buses. The deposition is that it was thereafter
agreed that PW 12 Anandrao would give to the accused a gold chain of
10 grams and gold ring of 4 grams, expenses of one bus and the clothes
for bridegroom. PW 1 states that when he met Surekha in a marriage
on 29.5.2001, she disclosed that the accused taunted her. PW 1 states
that the disclosure was to the effect that accused Rajesh used to tell
Surekha that her complexion was black and that she was not engaging
in conversation with his friend. Accused Usha used to tell her that she
was not working properly and that accused Rajesh and Rambhau used
to express that they were expecting much more from her father. In the
cross-examination, it is elicited that at the relevant time PW 1 was
working as a police sub inspector. It is elicited that the articles,
ornaments and clothes were traditionally given out of love and
affection and that PW 12 Anandrao Thakare gifted the articles,
ornaments and clothes as per his financial condition.
The statement of PW1 is recorded on 11.2.2002. The CID took
over the investigation on 22.9.2001. The defence was obviously not
alive to the settled position of law that it was necessary to seek an
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15 apeal629of04explanation from the Investigating Officer as regards the delay in
recording the statement under section 161 of the Code of Criminal
Procedure. (Randhir and others v. State of Punjab, AIR 1973 SC
1409).
The failure of the defence to be alert and alive to the settled
position of law does not however detract from the fact that the undue
delay of 5 months in recording the 161 statement is inexplicable. This
court is conscious of the fact that an explanation was not sought from
the Investigating Officer. However, the 161 statement of most of the
witnesses are recorded in January or February 2002. The CID which
took over the reins of investigation on 22.9.2001 obviously did not
justify the confidence reposed by the complainant on its ability and
competence. The evidence of PW 1 Shrirang Kolte does not take the
case of the prosecution any further. PW 1 Shrirang Kolte does not
speak of any illtreatment or harassment to the deceased Surekha,
connected with any dowry demand. The disclosure said to have been
made by Surekha to the effect that Rajesh and Rambhau were
expecting much more from her father cannot be construed by any
stretch of imagination, as a disclosure that Rajesh or Rambhau
demanded dowry. The only other disclosure is that Rajesh said that
Surekha was of black complexion and was not conversing with his
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16 apeal629of04friend and Usha said that Surekha was not working properly.
15 The evidence of PW 4 Shankar Muley is of no assistance to
the prosecution to prove illtreatment or harassment since the
deposition is that when PW 4 Shankar Muley inquired from Surekha
about her marital life, she said nothing since she was with her husband
Rajesh.
16 PW 11 Bayanabai is the grandmother of the deceased
Surekha. She states that when the deceased and her husband Rajesh
visited Nagbhid to attend a marriage, they were invited for tea by the
elder daughter of Bayanabai. Deceased Surekha conversed with the
witness in the kitchen, accused Rajesh was in the sitting room and the
deceased Surekha who was weeping, disclosed that the accused were
troubling her by saying that Surekha's parents did not give proper
clothes and did not pay the fare of one ST bus. In the cross-
examination every material statement in the examination in chief is
brought on record as an omission. The omissions are duly proved in
the evidence of the Investigating Officer PW 19. The statement of PW
11 Bayanabai is recorded on 16.1.2002. The evidence of PW 11
Bayanabai must be discarded since the entire evidence on the
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17 apeal629of04disclosure made by the deceased Surekha is omission partaking the
character of contradiction.
17 PW 12 Anandrao Thakare is the father of the deceased and
the informant. I have noted supra, that the First Information Report
(Exh. 106) makes no reference to any unlawful demand much less
unlawful demand accompanied by harassment or illtreatment. The
report speaks of taunts due to the sallow complexion of the deceased
Surekha. PW 12 Anandrao states that deceased Surekha and accused
Rajesh came to Nagbhid on 28.5.2001 to attend the marriage of
Madhuri, daughter of the cousin brother of PW 12. Surekha disclosed
that the accused were complaining about the quality of the clothes
gifted to the bridegroom, deceased Surekha also disclosed that accused
Rajesh was saying that her complexion is black and was troubling her.
She also expressed an apprehension that her life might be in danger, is
the deposition. In the cross-examination, it is suggested to PW 12 that
the accused are falsely implicated since there was a verbal altercation
between PW 12 and the accused on the occasion of 'Satyanarayan
Puja". The suggestion is denied. The rest of the cross-examination
endeavors to bring into focus that the statements in the examination in
chief are absent in the First Information Report which renders the
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18 apeal629of04reliability and credibility of the evidence suspect.
18 PW 13 Subhadra Thakare, is the mother of the deceased
who has deposed that Surekha disclosed to her that accused Rambhau
threatened her that she should bring dowry of Rs.50,000/-. The
version of PW 13 that Surekha disclosed a dowry demand is not
supported by any other prosecution witness. PW 13 has deposed that
according to Surekha she was scolded and taunted in her matrimonial
home. Her husband Rajesh used to tell her that she was black in
complexion and was dumb. She disclosed that accused Rajesh was
complaining about the cost of the dress, the value of the gold chain and
ring. PW 13 has further deposed that Surekha disclosed to her that
accused Usha criticized her manner of speaking and behavior and the
ability to do household work and questioned her culinary skills. PW 13
states that Surekha also disclosed that accused Rajesh beat her. In the
next breath PW 13 states that the accused, with common intention,
burnt Surekha. In the cross-examination, several omissions are
brought on record, some of which are proved in the evidence of PW 18
PSI Balakdas Patil. The endeavor in the cross-examination was to
demonstrate that every material and significant statement is an
omission. Consideration of the evidence of the scribe of the 161
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19 apeal629of04statement PW 18 would reveal that although the submission of the
defence is not entirely correct, PW 17 has indeed indulged in
improvements and exaggeration. The evidence that Surekha disclosed
that Rs.50,000/- was demanded as dowry, that she was beaten, that
her mother in law criticized her culinary skills and ability to do
household work, that accused Umesh taunted her and complaint that
no dowry was received are omissions which is duly proved in the
evidence of PW 18.
19 PW 14 Diwakar Thakare, the uncle of the deceased has
deposed that he met Surekha on 30.5.2001 and during the said
meeting Surekha disclosed that her husband was taunting her which
caused irritation. Deceased Surekha disclosed that her husband was
complaining as regards the ornaments and the quality of the clothes, is
the deposition. In the cross-examination, it is brought on record that
every material and significant statement in the examination in chief is
an omission vis-a-vis the 161 statement recorded on 17.6.2001. The
omissions are duly proved in the evidence of PW 18 Shri Patil.
20 PW 15 Pinglabai Karkade, a friend of the deceased was
examined to bring on record that when the deceased came to Nagbhid
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20 apeal629of04on 27.5.2001, she visited the house of PW 15 on 29.5.2001 and
disclosed that her husband was calling her black and that the other
inmates of the matrimonial home were complaining that the dowry
paid was less. PW 15 states that it was disclosed to her by her friend
Surekha that Ushabai criticized her culinary skills and that Rajesh and
Umesh were complaining about her ability to converse. Every
significant statement in the examination in chief is an omission which
is duly proved in the evidence of PW 19. In the teeth of evidence on
record, the finding recorded by the learned Sessions Judge that the
prosecution has proved offence punishable under section 304-B is
clearly sustainable. The prosecution has not established that dowry
was demanded much less that the deceased was illtreated or harassed
for or in connection with dowry demand. The common thread which
runs through the evidence of the prosecution witnesses is that the
accused were not satisfied with either jewellery or quality of clothes or
the amount of bus fare which were, according to the prosecution, the
terms agreed during the marriage negotiations. Demand for dowry
must be strictly proved. Expression of dis-satisfaction can not be
construed as a demand for dowry. The prosecution witnesses, as a fact,
admit that the jewellery and articles were presented as a tradition and
as would suit the financial capacity of PW 12 Anandrao. The only
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21 apeal629of04witness who speaks of a dowry demand is PW 13 Subhadra who speaks
of a disclosure made by the deceased Surekha that Rs. 50,000/- was
demanded as dowry. No other prosecution witnesses corroborates the
version of PW 13 that Rs. 50,000/- was demanded as dowry. The
learned counsel for the accused is more than justified in the submission
that even if the evidence is taken at face value, offence punishable
under section 304 part B of IPC is not made out since the demand for
or in connection with dowry is not established. The accused are
entitled to be acquitted for offence punishable under section 304-B of
the IPC.
21 It is already recorded supra, that the statements of most of
the prosecution witnesses have been recorded belatedly. In the
backdrop of the First Information Report being totally silent on the
causes and motive for the illtreatment or harassment other than stating
that Surekha was taunted in view of her sallow complexion, the fact
that 161 statements are recorded more than six months after the death
assumes significance.
22 The evidence of the prosecution witnesses is entirely
predicated on the disclosure made by the deceased Surekha. Since this
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22 apeal629of04court has recorded a finding that offence punishable under section
304-B of the IPC is not made out, what is left for consideration is
offence punishable under section 498-A of the IPC. Cause of death or
circumstances of the transaction leading to death is no longer in issue.
The verbal statements of the deceased Surekha are not admissible in
evidence under section 32(1) of the Indian Evidence Act since for the
purposes of section 498-A cause of death is not a issue. It would be
apposite to refer to the following observations of the Apex Court in
Bhairon Singh Vs. State of Madhya Pradesh, 2010 ALL SCR 213:
"3. The legal position relating to the admissibility of
evidence under section 32(1) has come up for consideration
before this court time and again. It is not necessary to
multiply the authorities in this regard as reference to a
three-Judge Bench decision of this court in Sharad
Birdhichand Sarda Vs. State of Maharashtra, (1984)4 SCC
116:[2009 ALL SCR(O.C.C.) 281], will suffice. Regarding
the application of rule under section 32(1) Evidence Act,
Fazal Ali, J. culled out the legal position as follows:"(1) Section 32 is an exception to the rule of hearsay
and makes admissible the statement of a person who dies,
whether the death is a homicide or a suicide, provided the
statement relates to the cause of death, or exhibits
circumstances leading to the death. In this respect as
indicated above, the Indian Evidence Act, in view of the
peculiar condition of our society and the diverse nature and
character of our people, has thought it necessary to widen
the sphere of Section 32 to avoid injustice.(2) The test of proximity cannot be too literally
construed and practically reduced to a cut-and-dried formula
of universal application so as to be confined in a straitjacket.::: Uploaded on - 21/02/2018 24/02/2018 00:48:11 :::
23 apeal629of04
Distance of time would depend or vary with the
circumstances of each case. For instance, where death is a
logical culmination of a continuous drama long in process
and is, as it were, a finale of the story, the statement
regarding each step directly connected with the end of the
drama would be admissible because the entire statement
would have to be read as an organic whole and not torn
from the context. Sometimes statements relevant to or
furnishing an immediate motive may also be admissible as
being a part of the transaction of death. It is manifest that
all these statements come to light only after the death of the
deceased who speaks from death. For instance, where the
death takes place within a very short time of the marriage or
the distance of time is not spread over more than 3-4 months
the statement may be admissible under Section 32.(3) The second part of clause (1) of Section 32 is
yet another exception to the rule that in criminal law the
evidence of a person who was not being subjected to or given
an opportunity of being cross-examined by the accused,
would be valueless because the place of cross-examination is
taken by the solemnity and sanctity of oath for the simple
reason that a person on the verge of death is not likely to
make a false statement unless there is strong evidence to
show that the statement was secured either by prompting or
tutoring.(4) It may be important to note that Section 32 does
not speak of homicide alone but includes suicide also, hence
all the circumstances which may be relevant to prove a case
of homicide would be equally relevant to prove a case of
suicide.(5) Where the main evidence consists of statements
and letters written by the deceased which are directly
connected with or related to her death and which reveal a
tell-tale story, the said statement would clearly fall within
the four corners of Section 32 and, therefore, admissible. The
distance of time alone in such cases would not make the
statement irrelevant."4. Varadarajan, J. on the other hand referred to the legal
position stated by Woodroffe and Amir Ali in their Law of::: Uploaded on - 21/02/2018 24/02/2018 00:48:11 :::
24 apeal629of04Evidence,(fourteenth edition) and Ratanlal and Dhirajlal in
their Law of Evidence (1982 Reprint). This is how A.
Varadarajan, J. dealt with the admissibility of evidence
under Section 32(1):(Sharad case, SCC pp. 206-08, Para202)
"202.......The position of law relating to the
admissibility of evidence under Section 32(1) is well settled.
It is, therefore, not necessary to refer in detail to the
decisions of this Court or of the Privy Council or our High
Courts. It would suffice to extract what the learned authors
Woodroffe and Amir Ali have stated in their Law of Evidence,
Fourteenth Edn. and Ratanlal and Dhirajlal in their Law of
Evidence (1982 Reprint). Those propositions are based
mostly on decisions of courts for which reference has been
given at the end. They are these:Woodroffe and Amir Ali's Law of Evidence, Fourteenth
Edn.:'Page 937:
Hearsay is excluded because it is considered not
sufficiently trustworthy. It is rejected because it lacks the
sanction of the test applied to admissible evidence, namely,
the oath and cross- examination. But where there are special
circumstances which give a guarantee of trustworthiness to
the testimony, it is admitted even though it comes from a
second-hand source.Page 941
What is relevant and admissible under clause (1) of
this section (Section 32) is the statement actually made by
the deceased as to the cause of his death or of the
circumstances of the transaction which resulted in his death.
Page 945-946:A statement must be as to the cause of the declarant's
death or as to any of the circumstances of the transaction
which resulted in his death i.e. the cause and circumstances
of the death and not previous or subsequent transaction,
such independent transactions being excluded as not falling
within the principle of necessity on which such evidence is
received. When a person is not proved to have died as a
result of injuries received in the incident in question, his
statement cannot be said to be a statement as to the cause of::: Uploaded on - 21/02/2018 24/02/2018 00:48:11 :::
25 apeal629of04his death or as to any of the circumstances which resulted in
his death. Where there is nothing to show that the injury to
which a statement in the dying declaration relates was the
cause of the injured person's death or that the circumstances
under which it was received resulted in his death, the
statement is not admissible under this clause.
Page 947:Circumstances of the transaction resulting in his
death: This clause refers to two kinds of statements: (i) when
the statement is made by a person as to the cause of his
death, or (ii) when the statement is made by a person as to
any of the circumstances of the transaction which resulted in
his death. The words "resulted in his death" do not mean
"caused his death". The expression "any of the circumstances
of the transaction which resulted in his death" is wider in
scope than the expression "the cause of his death". The
declarant need not actually have been apprehending death.
Page 947:The expression "circumstances of the transaction"
occurring in Section 32, clause (1) has been a source of
perplexity to courts faced with the question as to what
matters are admissible within the meaning of the expression.
The decision of Their Lordships of the Privy Council in
Pakala Narayana Swami v. Emperor (AIR 1939 PC 47) sets
the limits of the matters that could legitimately be brought
within the purview of that expression. Lord Atkin, who
delivered the judgment of the Board, has, however, made it
abundantly clear that, except in special circumstances no
circumstance could be a circumstance of the transaction if it
is not confined to either the time actually occupied by the
transaction resulting in death or the scene in which the
actual transaction resulting in death took place. The special
circumstance permitted to transgress the time factor is, for
example, a case of prolonged poisoning, while the special
circumstance permitted to transgress the distance factor is,
for example, a case of decoying with intent to murder.... But
the circumstances must be circumstances of the transaction
and they must have some proximate relation to the actual
occurrence.Page 948:
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26 apeal629of04
"Circumstances of the transaction" is a phrase no
doubt that conveys some limitations. It is not as broad as the
analogous use in "circumstantial evidence" which includes
the evidence of all relevant factors. It is on the other hand
narrower than `res gestae'. Circumstances must have some
proximate relation to the actual occurrence, though, as for
instance, in the case of prolonged poisoning they may be
related to dates at a considerable distance from the date of
actual fatal dose.Page 948:
The Supreme Court in the case of Shiv Kumar v. State
of U.P.{1966 Cri.App.R (SC) 281} has made similar
observations that the circumstances must have some
proximate relation to the actual occurrence, and that general
expressions indicating fear or suspicion, whether of a
particular individual or otherwise and not directly to the
occasion of death will not be admissible.
Page 949:The clause does not permit the reception in evidence of
all such statements of a dead person as may relate to matters
having a bearing howsoever remote on the cause or the
circumstances of his death. It is confined to only such
statements as relate to matters so closely connected with the
events which resulted in his death that may be said to relate
to circumstances of the transaction which resulted in his
death. "Circumstances of the transaction which resulted in
his death" means only such facts or series of facts which have
a direct or organic relation to death. Hence statement made
by the deceased long before the incident of murder is not
admissible.[1974 Cri LJ 1200 (MP).] Law of Evidence by Ratanlal and
Dhirajlal (1982 Reprint)
"Page 94:Circumstances of the transaction - General expressions
indicating fear or suspicion whether of a particular
individual or otherwise and not directly related to the
occasion of the death are not admissible.
Page 95:Circumstances must have some proximate relation to
the actual occurrence and must be of the transaction which::: Uploaded on - 21/02/2018 24/02/2018 00:48:11 :::
27 apeal629of04resulted in the death of the declarant. The condition of the
admissibility of the evidence is that the cause of the
declarant's death comes into question. It is not necessary that
the statement must be made after the transaction has taken
place or that the person making it must be near death or
that the `circumstance' can only include the acts done when
and where the death was caused....Dying declarations are
admissible under this clause.'"11. The only evidence to bring home charge under Section
498A, IPC, is that of PW-4 and PW-5. In their deposition
PW-4 and PW-5 stated that their sister told them that
accused was torturing her as he wanted that her brothers
should arrange a job for him or the house at Ganj Basoda is
given to him or a cash of Rs.1 lac is given to enable him to
do some business. They deposed that as and when their sister
come to their house, she would tell them that accused used to
insert cloth in her mouth and give beatings for dowry.12. The trial court as well as the High Court relied on the
evidence of PW-4 and PW-5 and held that charge under
Section 498A, IPC, against the accused was proved. Apart
from the statement attributed to the deceased, none of the
witnesses had spoken anything which they had seen directly
insofar as torture and harassment to Ranjana Rani @ Raj
Kumari was concerned.13. The moot question is: whether the statements
attributed to the deceased could be used as evidence for
entering upon a finding that the accused subjected Ranjana
Rani @ Raj Kumari to cruelty as contemplated under Section
498A, IPC.14. In our considered view, the evidence of PW-4 and PW-
5 about what the deceased Ranjana Rani @ Raj Kumari had
told them against the accused about the torture and
harassment is inadmissible under Section 32(1) of the
Evidence Act and such evidence cannot be looked into for any
purpose.::: Uploaded on - 21/02/2018 24/02/2018 00:48:11 :::
28 apeal629of04
15. Except Section 32(1) of the Indian Evidence Act, there
is no other provision under which the statement of a dead
person can be looked into in evidence. The statement of a
dead person is admissible in law if the statement is as to the
cause of death or as to any of the circumstance of the
transactions which resulted in her death, in a case in which
the cause of death comes into question. What has been
deposed by PW-4 and PW-5 has no connection with any
circumstance of transaction which resulted in her death.16. The death of Smt. Ranjana Rani @ Raj Kumari was
neither homicidal nor suicidal; it was accidental. Since for
an offence under Section 498A simpliciter, the question of
death is not and cannot be an issue for consideration, we are
afraid the evidence of PW-4 and PW-5 is hardly an evidence
in law to establish such offence. In that situation Section
32(1) of the Evidence Act does not get attracted.17. We are fortified in our view by the decision of this
Court in Inderpal vs. State of M.P., wherein this Court
considered the matter thus SCC pp.738-39, paras 4-7):"4. We will consider at first the contention as to
whether there is any evidence against the appellant which
can be used against him for entering upon a finding that he
subjected Damyanti to cruelty as contemplated in Section
498-A IPC. PW 1 father of the deceased and PW 8 mother of
the deceased have stated that Damyanti had complained to
them of her plight in the house of her husband and
particularly about the conduct of the appellant. PW 4 sister
of the deceased and PW 5 a relative of the deceased have also
spoken more or less on the same line. Exhibit P-7 and Exhibit
P-8 are letters said to have been written by Damyanti. In
those two letters reference has been made to her life in the
house of her in-laws and in one of the letters she said that
her husband had subjected her to beating.5. Apart from the statement attributed to the deceased
none of the witnesses had spoken of anything which they had
seen directly. The question is whether the statements
attributed to the deceased could be used as evidence in this
case including the contents of Exhibits P-7 and P-8 (letters).::: Uploaded on - 21/02/2018 24/02/2018 00:48:11 :::
29 apeal629of04
6. Before deciding that question we have to point out
that the High Court came to a conclusion that the allegation
that she committed suicide was not substantiated. A dying
declaration was recorded by the Executive Magistrate in
which the deceased had stated that she got burns
accidentally from a stove. If that be so, death could not be
the result of either any harassment or any cruelty which she
was subjected to. In this context we may point out that the
State has not challenged the finding of the High Court that
death of Damyanti was not due to commission of suicide.7. Unless the statement of a dead person would fall
within the purview of Section 32(1) of the Indian Evidence
Act there is no other provision under which the same can be
admitted in evidence. In order to make the statement of a
dead person admissible in law (written or verbal) the
statement must be as to the cause of her death or as to any
of the circumstances of the transactions which resulted in her
death, in cases in which the cause of death comes into
question. By no stretch of imagination can the statements of
Damyanti contained in Exhibit P-7 or Exhibit P-8 and those
quoted by the witnesses be connected with any circumstance
of the transaction which resulted in her death. Even that
apart, when we are dealing with an offence under Section
498-A IPC disjuncted from the offence under Section 306,
IPC the question of her death is not an issue for
consideration and on that premise also Section 32(1) of
the Evidence Act will stand at bay so far as these materials
are concerned."23 The precedents on proposition that when the only offence
left to be considered is 498-A of the IPC, the disclosures made by the
deceased are not admissible in evidence, can be multiplied. Suffice it
to refer to only one of the several judgments of the Apex Court in
Kantilal Martaji Pandor vs. State of Gujarat and another reported in
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30 apeal629of04(2013) 8 SCC 781 are also relevant:
17. The question that we have, therefore, to decide is
whether the Court could have arrived at this finding that the
appellant has starved the deceased and committed various
acts of mental cruelty towards the deceased only on the basis
of the contents of the letter dated 26.03.1992 written by the
deceased to the Police Station. The letter written by the
deceased on 26.03.1992 could be relevant only under Section
32(1) of the Evidence Act, 1872, which provides that a
statement, written or verbal, of relevant facts made by a
person who is dead, is relevant when the statement is made
by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death,
in cases in which the cause of that person's death comes into
question. The High Court in the present case has already
held that the appellant was not guilty of abetting the suicide
of the deceased and was, therefore, not guilty of the offence
under Section 306, IPC. As the cause of the death of the
deceased is no more in question in the present case, the
statements made by the deceased in the letter dated
26.03.1992 to the Police Station cannot be taken to be proof
of cruel acts committed by the appellant for the purpose of
holding him guilty under Section 498-A, IPC.18. For taking this view, we are supported by the decision
of this Court in Inderpal v. State of m.P. In this case,
Inderpal was charged and tried for the offence under Section
306, IPC, and convicted by the trial court for the said offence
of abetment of suicide. In the appeal filed by Inderpal, the
High Court found that the offence under Section 306 IPC,
was not made out as it could not be held that death of the
deceased was due to commission of suicide, but the High
Court held the appellant guilty of the offence under Section
498-A, IPC. This finding of the High Court was based on the
evidence of the father, mother, sister and another relative of
the deceased who deposed on the basis of inter alia the two
letters (Exhibits P-7 and P-8) written by the deceased
Damyanti that Inderpal, her husband, had subjected her to
beating. This Court found that apart from the statement::: Uploaded on - 21/02/2018 24/02/2018 00:48:11 :::
31 apeal629of04attributed to the deceased, none of the witnesses had spoken
of anything which they had seen directly and the question
that this Court had to decide was whether the statement
attributed to the deceased could be used as evidence
including the contents of Exts.P-7 and P-8 and this Court
held that the contents of Exts. P-7 and P-8 written by the
deceased could not be treated as proof of the acts of cruelty
by Inderpal for the purpose of offence under Section 498-A
IPC. The reasons given by this Court in paragraph 7 of the
judgment as reported in the SCC are as follows (Inderpal
case, SCC p. 739):"7. Unless the statement of a dead person would fall within
the purview of Section 32(1) of the Evidence Act there is no
other provision under which the same can be admitted in
evidence. In order to make the statement of a dead person
admissible in law (written or verbal) the statement must be
as to the cause of her death or as to any of the circumstance
of the transactions which resulted in her death, in cases in
which the cause of death comes into question. By no stretch
of imagination can the statements of Damyanti contained in
Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses
be connected with any circumstance of the transaction which
resulted in her death. Even that apart, when we are dealing
with an offence under Section 498-A IPC disjuncted from the
offence under Section 306 IPC the question of her death is
not an issue for consideration and on that premise also
Section 32(1) of the Evidence Act will stand at bay so far as
these materials are concerned."24 In the light of the enunciation of law by the Apex Court,
there is absolutely no admissible evidence to bring home the charge
under section 498-A of the IPC. Even if arguendo, the verbal
statements are considered, the disclosures does not establish
illtreatment or harassment of the nature and extent, willfully meted
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32 apeal629of04out, as is likely to drive deceased Surekha to commit suicide or to cause
grave injury or danger to life, limb or health (whether mental or
physical) or harassment, where the harassment is with a view to coerce
the women or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by the
woman or any other person related to her to meet such demand.
Explanation (b) of section 498-A of the IPC is not attracted since the
evidence on demand is virtually non-existent. It is most unfortunate
that Surekha left for heavenly abode within 37 days of the marriage.
The cause of death is blurred. The investigation is not only unfair but
is dishonest. The failure of the prosecution to examine the two doctors
to whom Surekha disclosed that she suffered accidental burns while
cooking is suggestive of dishonesty. The failure to examine the two
doctors may or may not be attributed to inefficiency or incompetence of
the CID. However, the fact that the defence made no effort to examine
Dr. Gupta and Dr. Khandare despite the history of injury recorded in
Exh. 44 and the categorical admission of the Investigating Officer,
surely reflects poorly on the defence. I refrain from making any further
observations. In the light of the discussion supra, I pass following
order:
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33 apeal629of04(i) The judgment and order impugned is unsustainable and is
set aside.
(ii) The accused are acquitted of offence punishable under
section 498-A and 304-B of the IPC.
(iii) The bail bonds of the accused shall discharged. Fine paid
by the accused, if any, shall be refunded.
(iv) The appeal is allowed.
JUDGE
RSB
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