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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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