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Sanjay Gajanan Naitam & Another vs The State Of … on 16 February, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH : NAGPUR

Criminal Appeal No. 65 of 2001

Appellants : 1) Sanjay son of Gajanan Naitam, aged about
28 years,

2) Moreshwar son of Gajanan Naitam, aged about
25 years,

Both residents of Mahadoli, Tahsil Kelapur,
District Yavatmal

Versus

Respondent: The State of Maharashtra, through Police

Station Officer, Pandharkawda, Dist. Yavatmal

Shri R. M. Daga, Advocate for appellants
Ms Ritu Kaliya, Addl. Public Prosecutor for respondent-State

Coram : S. B. Shukre, J

Dated : 16th February 2018

Oral Judgment

1. This appeal challenges the legality and correctness of the

judgment and order dated 21.3.2001 rendered in Sessions Trial No. 47

of 1995 by 2nd Additional Sessions Judge, Yavatmal.

2. By the judgment and order impugned herein, the appellants

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who are original accused nos. 1 and 2 out of five accused persons, have

been found guilty of offences of dowry death, abetment to commit suicide

and cruelty punishable under Sections 304-B and 306 read with Section

34 of the Indian Penal Code. Accordingly, they have been convicted and

sentenced by the impugned judgment and order to different punishments

ranging from seven years’ to two years’ rigorous imprisonment together

with fine amount ranging from Rs. 1000/- to Rs. 500/- accompanied by

default sentences to suffer RI for six months to two months. Being

aggrieved by the same, the appellants are before this Court in the present

appeal.

3. Accused nos. 1 and 2 were respectively husband and brother-

in-law of deceased Nayana. Original accused no. 3 Gajanan, original

accused no. 4 Sau Saraswatibai and original accused no. 5 Balkrishna

were also related to deceased Nayana. They were respectively her father-

in-law, mother-in-law and brother-in-law.

4. The marriage of deceased Nayana was solemnized with

appellant no. 1 on 17.5.1993. After the marriage, deceased Nayana

started cohabiting with accused no. 1 and she resided with him at his

house situated at village Mahadoli, Tahsil Kelapur, District Yavatmal

along with accused nos. 3 to 5. Initially, it was alleged, Nayana was

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treated well by the appellant and other family members. After two

months thereafter, her ill-treatment at the hands of appellants and other

accused persons began. It was alleged that the accused persons used to

demand Rs. 25,000/- in cash and TV set from deceased Nayana and on

her failure to do so, used to ill-treat her. After the marriage, Nayana had

an occasion to go back to parental house and it was her such first visit to

her parental home. At that time, deceased Nayana had disclosed to her

father and brother about the illegal demand of accused persons and her

ill-treatment. Thereafter, Nayana had paid second visit to her parental

house at which time again deceased Nayana had disclosed about the

illegal demand and ill-treatment to her at the hands of accused persons

to her father and brother.

5. At about 11.00 am on 6.9.1994, Nayana left her house for

going to an agricultural field to perform some work. She did not return

home on that day. The accused persons got worried and, therefore, they

lodged a missing report in respect of Nayana on 7.9.1994 with Kelapur

Police Station. In the morning of the next day i.e. 8.9.1994, one Shekhar

discovered one dead body floating in a well constructed in the field of one

Prabhakar which was on the eastern side of the village. He informed of

the same to Police Patil, Mahadoli. Police Patil verified the fact and

immediately reported the incident to Kelapur or Pandharkawda Police

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Station. An AD report was registered and enquiry into it was started.

Meanwhile, brother of the deceased lodged the report that behind the

death of Nayana was the ill-treatment given to her by all the accused

persons on account of failure of Nayana to bring from her father cash

amount of Rs. 25000/- and a TV set.

6. The spot panchanama and inquest panchanama were

prepared. Further enquiry was made by the police to ascertain if there

was any prima facie substance in the allegations made against all the

accused persons by brother of the deceased. When police were satisfied

about existence of prima facie substance in the allegations, First

Information Report was lodged on 18.9.1994 and offences punishable

under Sections 304B, 306 and 498A read with Section 34 of the Indian

Penal Code were registered against both the appellants and also the

remaining accused persons.

7. As the case involved the offences exclusively triable by the

sessions court, it was committed to the Sessions Court for trial of the

accused persons in accordance with law. The accused persons were

prosecuted for the aforesaid offences. On merits of the case, the learned

Additional Sessions found that the prosecution failed to prove beyond

reasonable doubt these offences against original accused nos. 3, 4 and 5

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and succeeded in proving beyond reasonable doubt these offences against

original accused nos. 1 and 2 i.e. the present appellants. Therefore, by

the impugned judgment and order, the learned Additional Sessions Judge

convicted and sentenced both the appellants of these offences, as stated

earlier.

8. I have heard Shri R. M. Daga, learned counsel for the

appellant and Ms Ritu Kaliya, learned Additional Public Prosecutor for the

respondent-State. I have carefully gone through record of the case

including impugned judgment and order.

9. In order to prove the offence of dowry death punishable

under Section 304B of the Indian Penal Code, it must be shown that the

death of a woman is unnatural, was within seven years of her marriage

and that soon before her death, she was subjected to cruelty or

harassment by her husband or any relative of her husband or in

connection with any demand for dowry. The cruelty or harassment, as

required under Section 304-B IPC is the one as defined under Section

498-A of IPC. Section 498-A of IPC defines cruelty as 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 of the woman

either mental or physical. It also defines harassment which amounts to

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cruelty by requiring that the harassment must be made with a view to

coerce a woman or any person related to her to satisfy any unlawful

demand for any property or valuable security. In other words, the cruelty

or harassment must be of such a nature as is likely to drive the woman to

commit suicide or must be of such a nature as to cause grave injury or

danger to life, limb or physical/mental health of the woman and if it is

not of such a nature, it should be an ill-treatment meted out to a woman

in order to force 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.

10. It has been held in several cases by the Hon’ble Apex Court

that the harassment or ill-treatment, as discussed above, must be of

consistent nature and should not be in the nature of stray incidents. It

has also been held in these decisions that the particular act committed by

the accused persons viz-a-viz the woman must be described so that an

appropriate decision can be made as to whether or not these acts

constitute cruelty or harassment, as contemplated under Section 498-A

IPC, and if no such details are given, no positive finding regarding

commission of an offence of cruelty punishable under Section 498-A of

IPC can be recorded.

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11. Whenever death of a woman occurs within seven years of her

marriage, presumption about dowry death contemplated by Section 304-B

of IPC is also available. But in order that such presumption of causing of

dowry death is drawn against the accused, it must be proved by the

prosecution that soon before her death, the woman was subjected to

cruelty or harassment by the accused. Cruelty or harassment referred to in

Section 304-B IPC is something which is defined in Section 498-A IPC

about which I have already made discussion to explain the essential

requirements.

12. In the case of Bijendra ors v. State of Haryana reported

in 2015 ALL SCR 626, the Hon’ble Apex Court has held that the main

ingredient of the offence of dowry death is the cruelty or harassment

given for coercing woman to meet unlawful demand and that unless main

ingredient is established, the offence of dowry death cannot be

constituted. It is also held that in order to prove the offence of cruelty as

contemplated under Section 498-A of IPC, it is necessary that specific

allegations of ill-treatment are made and in the absence of such

categorical allegations, conviction for such an offence cannot be

maintained.

13. Now, in the light of aforesaid requirements of law and

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principles enunciated by the Hon’ble Apex Court in the case of Bijender

ors (supra), let us now appreciate the evidence available on record.

14. In the present case, nobody has seen deceased Nayana at or

near the well from which her dead body was recovered in the morning of

8.9.1994. There is no evidence available to tell us as to how deceased

Nayana fell into the well in question. The post-mortem report (exhibit

33) states that cause of death cannot be given as the body was

decomposed. Viscera of the deceased was preserved and was sent to the

chemical analyzer for analysis and report. C. A. Report (exhibit 32) was

also produced in evidence. It was negative for presence of poison in the

intestine of the deceased. After this C. A. Report, the doctor who

conducted the post-mortem examination was not asked about his final

opinion. So, this is a case wherein no final opinion of doctor as regards

cause of death of Nayana is available.

15. Added to the absence of final opinion regarding cause of

death of the deceased is the difficulty arising from absence of any

external injuries on the person of deceased Nayana. Post-mortem report

(exhibit 33) indicates clearly that no external injuries were noticed on the

person of deceased Nayana. If no external injuries were noticed,

reasonably one can say that possibility of an accidental fall into the well in

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question of deceased Nayana is ruled out. Then, only the two

possibilities remain – one of homicidal death and second of suicidal

death. On these aspects of the case, unfortunately, no evidence

whatsoever has been brought on record by the prosecution. There is not a

single witness who would give any clue to us to make any determination

in this regard. So, the question, as to whether deceased Nayana died of

suicidal death or homicidal death has remained unanswered. But, one

thing is certain and it is that her death was unnatural and in suspicious

circumstances.

16. Once it is found that the death of woman i.e. deceased

Nayana occurred in the circumstances otherwise than normal, one can

direct the course of enquiry to examine the possibility of dowry death. So,

from this angle, let us examine the prosecution evidence first.

17. There are only three witnesses out of five witnesses whose

evidence is required to be considered to ascertain whether there was any

cruelty or harassment meted out to Nayana soon before her death as it is

only these witnesses who were related to her and to whom, as per their

version, deceased Nayana used to disclose her woes.

18. On going through their evidence, it can be noticed instantly

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that so far as the aspect of cruelty or harassment is concerned, their

testimonies are similar in nature. PW 1 Devidas was the brother of

deceased Nayana; PW 2 Nyaidas was the father of deceased and PW 3

Vatsala was her mother. These witnesses have stated that when Nayana

visited their house for the first time after marriage, she told them that

accused were demanding Rs. 25,000/- in cash as well as TV set. They

have also stated that there was yet another visit to their house by

deceased Nayana when she spoke to them about such demands. On both

these occasions, the witnesses have stated, Nayana told them that she was

being ill-treated by the accused persons on the count of these two

demands. Of course, there is some variation in the evidence of PW 1

Devidas on the one hand and PW 2 Nyaidas and PW 3 Vatsala, on the

other, in the sense that PW 1 Devidas has stated that these demands

came only from accused no. 1 (appellant no. 1) while PW 2 Nyaidas and

PW 3 Vatsala have stated that the demands came from all the accused

persons. But, these witnesses are in agreement with each other that on

the count of these demands, there was ill-treatment given to Nayana not

just by her husband (appellant no. 1), but appellant no. 2 as well as

original accused nos. 3, 4 and 5. These witnesses have not elaborated

anything about the nature of ill-treatment allegedly given to deceased

Nayana. PW 1 Devidas says that its nature was household. One does not

understand as to what he intended to convey when he said that it was

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“household ill-treatment”. When the witnesses say that particular acts

were in the nature of ill-treatment, the witnesses must describe those

particular acts constituting ill-treatment and if they do not describe those

acts sufficiently, their evidence that there was ill-treatment, would be

reduced only to the state of opinion of the witnesses. Such evidence does

not help the Court to decide the question of cruelty. Cruelty is not what

witnesses opine, but is what is found by the Court on the basis of

particular acts, incidents and events stated about in detail to enable the

court from an opinion if indeed they constituted cruelty or ill-treatment

or harassment, as defined under Section 498A of IPC. Ultimately, it is for

the Court to opine and find an act as prohibited or not prohibited under

the law and not for the witnesses to do so. Such evidence is lacking here.

In the absence of any such specific evidence coming on record, it cannot

be found that what has been opined to be the ill-treatment given to

deceased Nayana at the hands of all accused, was indeed an ill-treatment

or harassment, as contemplated under Section 498A of the Indian Penal

Code.

19. Apart from above, I must say that opinion of ill-treatment has

been given by all the three witnesses not only against appellants no. 1 and

2, but also against original accused nos. 3, 4 and 5. The learned

Additional Sessions Judge, however, by the impugned judgment and

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order found original accused nos. 3,4 and 5 as innocent and not guilty of

the offences punishable under Sections 304-B, 306 and 498-A read with

Section 34 of the Indian Penal Code, but by the same judgment, found the

accused nos. 1 and 2/appellants as guilty of these very offences. The

State has accepted the acquittal of original accused nos. 3,4 and 5 when it

chose not to file any appeal against it. Admittedly, there is no other

evidence available on record to distinguish the case of present appellants

from that of accused nos. 3, 4 and 5. So, these appellants also deserved

to be treated at par with those acquitted of the same offences. But, the

learned Additional Sessions Judge discriminated against them and the

discriminatory treatment can be said to have violated the principle of

equality and reasonableness found in Articles 14 and 21 of the

Constitution of India.

20. Leaving aqside the question of discriminatory treatment of

appellants no. 1 and 2, on merits of the case also, one can see that there is

no evidence forthcoming from the prosecution about the particular act

committed by the appellants against deceased Nayana on account of her

failure to meet the alleged illegal demands. There is also no whisper

about the frequency of ill-treatment. I have already found that in the

absence of any such details, the offence of cruelty as contemplated under

Section 498-A of IPC cannot be seen to have been made out and it has not

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been made out in a reasonable manner against the appellants by the

prosecution.

21. Once it is held that the offence of cruelty has not been proved

beyond reasonable doubt against appellants, no presumption under

section 113A of the Evidence Act regarding causing of dowry death of

deceased Nayana can be drawn. In other words, I find that one of the

essential ingredients of the offence of dowry death punishable under

Section 304-B of IPC has not been established beyond reasonable doubt

by the prosecution. All these aspects of the case have not been considered

appropriately by the learned Additional Sessions Judge. The appellants

deserve to be acquitted of the offences with which they have been

charged in the present case.

22. In the result, appeal deserves to be allowed. Appeal stands

allowed. The impugned judgment and order are quashed and set aside.

The appellants are acquitted of the offences punishable under Sections

304-B, 306 and 498-A read with Section 34 of the Indian Penal Code.

Their bail bonds stand discharged. Muddemal property, if any, be

destroyed after a period of six months.

S. B. SHUKRE, J

joshi

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