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Shivpal Suraj Pardeshi vs State Of Mah. Thru Pso Koradi & 4 Ors on 24 April, 2019

CRI.APPEAL.652.06+
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.

CRIMINAL APPEAL NO. 652/2006
with
CRIMINAL REVISION NO.315/2006

CRIMINAL APPEAL NO. 652/2006

Pramod s/o Badriprasad Pal
Aged about 25 years, occu:
R/o Tirupatinagar, Koradi Road,
Nagpur. ..APPELLANT

versus

The State of Maharashtra
Through Police Station Koradi
Dist. Nagpur. .. RESPONDENT
……………………………………………………………………………………………………………………………..
Mr. R.R. Vyas, Adv. for appellant
Mrs.Mrunal Barabde, Additional Public Prosecutor for respondent-State
………………………………………………………………………………………………………………………………

CRIMINAL REVISION NO.315/2006

Shivpal Suraj Pardeshi
Aged 51 years, occu: service
R/o Plot No. 23
Takiya, Waddhamana
P.S. Wadi, Nagpur. ..APPELLANT

versus

1) The State of Maharashtra
Through P.S.O. Koradi
Dist. Nagpur.

2) Badriprasad Prabhagnath Pal
Aged about 45 years

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3) Pramod Badriprasad Pal
Aged about 24 years

4) Sou. Rajkumari Badriprasad Pal
Aged about 42 years

5) Sou. Pramila Shivsagar Pal
Aged about 20 years

2 to 5 R/o Plot No.91
Tirupatinagar, P.S. Koradi
Nagpur (M.S. ). {Ori.Accused 1 to 4) .. RESPONDENTS
……………………………………………………………………………………………………………………………..
Mr. R.H. Ravlani, Adv. for appellant
Ms. Mrunal Barabde, Additional Public Prosecutor for respondent -State
Mr. R.R.Vyas, Adv.for Respondents 2 to 5
………………………………………………………………………………………………………………………………

CORAM: MRS.SWAPNA JOSHI, J.
DATE OF RESERVING : 4th April, 2019
DATE OF PRONOUNCEMENT: 24th April,2019

JUDGMENT:

1. Criminal Appeal No.652/2006 has been preferred by appellant

-Pramod, who is the husband of deceased-Deepa, against the judgment and order

dated 31st October 2006 delivered by learned Ad-hoc District Judge-6 ASJ Nagpur

in Sessions Trial No. 467/2005 convicting the appellant (hereinafter referred to as

“accused” under Section 498-A of the Indian Penal Code and sentencing to suffer RI

for two years and to pay fine of Rs. 1000/-, in default, to suffer SI for one month.

Criminal Revision No.315/2006 has been preferred by the father of the

deceased, namely, Shivpal Pardeshi against the State and all the four accused who

were acquitted by learned trial Judge u/s 498-A and Section 304B, 306 read with

Section 34 of the IPC and Section 3 and 4 of the Dowry Prohibition Act,1961.

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2. Brief facts of the case may be summarized as under:-

The marriage of Deepa (deceased) with accused-Pramod was

solemnized on 05.12.2004 as per the Hindu customs and rituals. During tilak ceremony

an amount of R. 5051/- and some articles were given. Four days after the marriage

when Deepa came to her parental home, she informed to her parents that her in-laws

were making demand of Hero Honda motorcyle, gold chain and a colour TV. PW1-

Shivpal, the complainant and father of deceased told Deepa that he would talk to

her in-laws. In March 2005 i.e. one day before the festival of colours i.e. Holi, Deepa

visited her parental home along with her husband. At that time, she informed her

father that she was subjected to harassment at the hands of her in-laws for want of

above-referred objects of desire. After four to five days, her husband and in-laws

visited the house of PW1 to fetch Deepa. At that time, PW1 gave one gold chain

weighing 12 grams and new clothes to the accused-Pramod. In April 2005, Deepa

again visited her parental home and told PW1 that her husband was unable to

maintain her and was pressing her for doing a job. On 27.5.2005 Deepa along with the

accused suddenly came to the house of PW1 and at that time accused -Pramod

demanded vehicle and TV from PW1. The accused further said that if he was not in a

position to fulfill his demand then he should build two rooms for him. Deepa informed

to her father that her mother-in-law had asked her to bring an amount of Rs.1,50,000

from PW1 which was spent in the marriage, otherwise she should permanently reside

at her parental home. On 30.5.2005 at about 11.30 am., PW1 received a phone call

from the house of Deepa that she was not keeping good health. When PW1 went to

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the house of Deepa she was dead. PW1 then lodged the complaint against accused-

Pramod and in-laws of Deepa.

3. At the relevant time, PW9 PSI Vidyasagaar Shrimanwar was attached

to Koradi Police Station. On the basis of report of PW1, he registered the offence and

arrested the accused on the same day. PW9 recorded the statements of relevant

witnesses. On 31.5.2005 PW6, PSI-Gulab Wadke, visited the place of the incident and

recorded the spot panchnama. One PSI Mamore (not examined) had sealed one

almirah at the time of recording the spot panchnama on 10.6.2005. PW6 broke opened

the seal of the almirah and seized one glass bottle 375 ml. capacity containing 75 ml.

liquid. Accordingly, seizure panchnama was prepared (Exh.33). The said bottle was

sent to CA for analysis and the CA reports were secured (Exhs. 61 and 62). After

completion of investigation, charge-sheet was filed in the Court of JMFC. Since the

case was exclusively triable by Court of Sessions, the same was committed to the

Court of Sessions. Charge was framed. The defence of the accused was of total denial

and no witnesses were examined on their behalf. The learned trial Judge after

recording the evidence and hearing both sides, convicted the appellant and acquitted

the other accused, as aforesaid.

4. I have heard learned counsel for the respective parties, at length.

With their able assistance, I have gone through the record and proceedings of the

case. Mr. R.R.Vyas, learned Advocate for accused vociferously argued that the learned

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trial Judge has not assessed the evidence led by the prosecution in its right

perspective and has erroneously convicted accused-Pramod, although on the same

set of facts and circumstances, the remaining accused i.e. in-laws of the deceased

were acquitted. It is submitted that there is no consistent and cogent evidence against

the accused to show that they treated Deepa with cruelty inasmuch as the cruelty

was of such a nature that she was driven to commit suicide. He further submitted that

there is no question of demand of dowry as the accused were well-aware of the

precarious financial condition of the father of the deceased (PW1). It is further

submitted that the prosecution has failed to prove the cause of death of Deepa. The

PM report no doubt shows the probable cause of death as death ‘due to poisoning’;

however, the CA report does not reflect any poisonous material. No poison was found

in the viscera of the deceased. In these circumstances, it is submitted that the

prosecution has failed to prove the cause of death of Deepa, that is, whether Deepa

died accidental, suicidal or homicidal death as she was suffering from epilepsy and

was taking medicine for curing it. In these circumstances, it is submitted that the

accused-Pramod be acquitted of the offence punishable u/s 498A of IPC. It is further

submitted that since the scope in Revision is very limited and as no perversity is

noticed in the impugned judgment, while acquitting the accused, no relief can be

granted in favour of the complainant.

5. Mr. R. H. Ravlani, learned Advocate for the complainant father of the

deceased, vehemently contended that there is ample evidence on record to show that

the accused committed the alleged offence. He submitted that although there is

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sufficient evidence against the in-laws of the deceased, the learned trial Judge has

failed to assess the same in its proper perspective and has erroneously acquitted the

accused. He further submitted that there are allegations against the accused that they

demanded dowry from the complainant (PW1) and for the said dowry they harassed the

deceased due to to which she took the extreme step. It is submitted that death of

Deepa under unnatural circumstances lends credence to the presumption that it was a

dowry death. It is submitted that although the CA report does not support the case of

the prosecution however the fact remains that Medical Officer Ninad Gawande (PW8)

has opined the probable cause of death due to poisoning which indicates that Deepa

died a suicidal death.

6. Mrs.Mrunal Barabde, learned APP supported the contentions raised by

Mr. Ravlani.

7. At the outset, as far as Revision preferred by the complainant who is

the father of deceased, is concerned, the law for preferring Revision is well-settled. In

the case of K.Ramchandran vs V.N. Rajan and another, reported in (2009) 14 SCC

569, wherein the Hon’ble Apex Court held as under :-

“39. We have also considered the judgment of the
learned Single Judge on merits of the matter. In a revision against
acquittal preferred by a private party, there is a very little scope to
interfere. Here was a case where the learned single Judge
disapproved of the appreciation of the evidence by the trial court.
It is not as if the trial court had ignored any important piece of

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evidence or it had chosen not to appreciate the same. It is again
not as if there was any piece of evidence which was illegally not
permitted to come on record. Again, it is also not a case where
there was some serious defect in the trial affecting the merits of
the matter. Further, the Court trying the appellant-accused did
not lack the jurisdiction also to try and convict or acquit the
appellant-accused. All that the High Court has observed is that the
appreciation of evidence by the trial court was not correct and the
trial court should not have taken the view that it has taken of the
evidence.

40. This question has been considered in the celebrated
judgment of Akalu Ahir vs. Ramdeo Ram (1973) 2 SCC 583;

where, after considering the judgments of D. Stephens vs,.
Nosibolla: AIR 1951 SC 196; Logendranath Jha v. Polai Lal
Biswas; AIR 1951 SC 316; K. Chinnaswamy Reddy v. State of A.
P. ; AIR 1962 SC 1788 and Mahendrarapatp Singh v. Sarju Singh
AIR 1968 SC 707, this Court came out with categories of cases
which would justify the High Court in interfering with the finding of
acquittal in revision :Akalu Ahir case ( supra) para8).

“(i) where the trial court has no jurisdiction to try the
case, but has still acquitted the (appellant)-accused;

(ii) Where the trial Court has wrongly shut out
evidence which the prosecution wished to produce;

(iii) Where the appellate court has wrongly held the evidence
which was admitted by the trial court to be inadmissible;

(iv) where the material evidence has been overlooked only
( either) by the trial court or by the appellate court; and

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(v) where the acquittal is based on the compounding of the
offence which is invalid under the law.

Of course, these categories were declared by this Court
to be illustrative and this Court observed that other cases of
similar nature could also be properly held to be exception in
nature where the High Court could justifiably interfere with the
order of acquittal.”

Needless to mention, keeping in mind the aforesaid guidelines, the

Revision preferred by the complainant has to be decided.

8. In order to consider the rival contentions of both sides, it would be

advantageous to go through the evidence led by the prosecution witnesses. At the

outset, it would be appropriate to verify whether Deepa died under unnatural

circumstances. It is the case of the prosecution that Deepa died due to consumption of

poison, whereas it is the case of the accused that Deepa was suffering from epilepsy

and used to consume medicines for the epilepsy attacks. In order to prove that Deepa

died an unnatural death, the prosecution relied upon PM report (Exh. 41) which shows

the probable cause of death as due to poisoning. It is stated that the final report shall

be given after Chemical Analysis report is made available. In this context, the evidence

of PW8-Dr.Ninad Gawande shows that on internal examination he noticed that stomach

contained 300 ml greenish coloured fluid having turpentine like odour. The brain was

found congested at edematous weighing about 1200 gms and the trachea was lying

with red coloured fine froth. On the basis of aforesaid observations and symptoms,

PW8 opined the probable cause of death, due to poisoning. He reserved his opinion

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so far as final cause of death is concerned. PW8 fairly stated that the CA report of

viscera (Exh.61) reveals no poison. He admitted that if no positive signs of poison are

exhibited, it is advisable to send viscera to CA for analysis. He further admitted that the

chemical analysis has not disclosed that the viscera has odour of turpentine. Thus,

since there were no positive signs of poison, PW8 has sent the viscera to CA for its

confirmation. Significantly, in the CA report (Exh.61) there is no mention that viscera

had odour of turpentine. On the contrary, the CA report (Exh.62) did not reveal any

poison in the viscera of stomach, intestine, liver, spleen and kidney. In this context, it

would be fruitful to note that from the place of incident, from the cupboard which was

locked when the spot Panchnama was conducted, on opening it, a glass bottle was

found having some liquid. It is the case of the prosecution that Deepa must have

consumed the said liquid contained in the said bottle and due to the consumption of

the said liquid, she died. Significantly, the said bottle was seized and was sent to CA

for analysis and ethyl alcohol was found in the said bottle. Thus, there is no evidence

on record to show that Deepa died due to consumption of poison. It is not clear as to

from where Deepa brought the poison and consumed it. In fact, the liquid which was

found in the bottle kept in the cupboard situated in the bedroom of Deepa, showed

the residues of ethyl alcohol which is certainly not a poison.

9. Now coming the case of the accused that Deepa died due to epilepsy

attack, appears to be probable one. It is not seriously disputed that as Deepa was

suffering from epilepsy, she was hospitalized on 5.3.2005 for treatment, as admitted by

her father PW1. Exhs. 52 and 53 are the medical papers in respect of treatment given

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to Deepa on the ailment of epilepsy as the medicine ‘pantrizo’ .was prescribed for

anxiety disorder. In this context, the Medical Officer-PW8 opined that in cases of

epilepsy patient may undergo coma and the death by suicide is considered to be

natural cause of death. In these circumstances, it is held that the prosecution has failed

to prove that Deepa died a suicidal death. An useful reference of the judgment reported

in (1982) 2 SCC 396, in the case of Mayur Shah vs. State of Gujarat, can be made

wherein it is held that there is no irrebuttable presumption that a Doctor is always a

witness of truth.

10. In order to establish that the accused ill-treated Deepa by demanding

dowry, the prosecution has heavily replied upon the testimony of PW1-Shivpal. PW1,

the complainant and father of Deepa deposed that Deepa married with accused

Pramod on 05.12.2004 at Waddhamana. After marriage she started residing at

Tirupatinagar, Nagpur. It was a joint family inasmuch as the in-laws were also residing

with them. Four days after the marriage, Deepa told PW1 that the accused expressed

their grievance that since PW1 has not presented articles, such as, gold chain,

motorcycle, colour TV etc. some time in April/ May 2005, Deepa along with Pramod

visited the house of PW1. Pramod asked him that if he had no capacity to fulfill his

demand, in that event, he should build two rooms for him. PW1 then talked to the

father of the accused and asked him why Deepa was being harassed. The in-laws

and husband of Deepa visited his house for Holi festival. As per the demand PW1

offered gold chain and one and a half tola to the accused. He too honoured the in-

laws of Deepa by presenting clothes. Deepa then went with the accused. On

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30.5.2005 PW1 came to know that Deepa expired. He rushed to the hospital and

found that Deepa’s skin colour had turned into green and as such, he suspected that

she must have been forced to consume poison. PW1 then lodged report at Koradi

Police Station (Exh. 50).

11. PW1 admitted that he knew the accused even prior to marriage as well

as their business and financial capability. PW1 further admitted that at the time of

marriage negotiations, there was no talk of dowry. In these circumstances, there was

no reason for accused Pramod to suddenly demand gold chain. The said version of

PW1 regarding demand of dowry does not appear to be convincing.

12. During the cross-examination, improvements were pointed out in the

version of PW1 that he conveyed the demand of accused to his father and also

complained about the ill-treatment extended by the accused. An improvement was

found in the testimony of PW1 to the effect that he presented the gold chain since it

was demanded. The said improvement goes to the root of the case of the prosecution

and it creates a serious doubt about the demand of gold chain by the accused-

Pramod from PW1 and PW1 presenting it to the accused. It was suggested to PW1

that during the marriage ceremony, Deepa became unconscious and fell down. On

this, PW1 volunteered that son of accused no.1, namely, Santosh picked up quarrel

in the said marriage and created a chaos. The people started running here and there

and accused Pramod also got up from the stage. The said scene had badly affected

mental condition of Deepa, so she became unconscious. From the said episode, the

question remains as to why Deepa became unconscious. Although PW1 denied that

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Deepa was suffering from convulsion disease since child-hood, from the medical

papers, it appears that Deepa was suffering from some mental illness. It is the case of

the accused that Deepa was suffering from convulsion disease and PW1 had

suppressed the said fact from the accused. It also appears that PW1 admitted Deepa

in Usha Memorial for her medical treatment and he had suppressed the said disease

from the accused.

13. The testimony of PW2, who is the mother of deceased Deepa, shows

that four days after the marriage, Deepa came to her house and complained that the

accused were blaming that they had spent Rs. 1.5 lakhs, but was not presented a gold

chain and Hero-Honda motorcycle. She further deposed that in February, 2005 ori.

accused no.1-Bardriprasad telephoned informing her that Deepa was not well. PW2

deposed that her husband visited the house of Deepa at 11.00 pm; Deepa was found

lying unconscious, so she was admitted in Usha Memorial. After three days, Deepa

was brought by them to their house. Deepa again complained that the accused were

harassing her for gold chain, motorcycle and TV. Deepa persuaded them that when

they will offer chain to the accused they should also give TV and motorcycle else they

would kill her by poisoning. She also complained that her husband used to force her

to bring TV and motorcycle or else he would kill her by poisoning. In this context, it is

significant to note that the version of PW2 that the accused said that they had spent

Rs.1.5 lakhs, does not find place in the testimony of PW1-Shivpal, father of deceased.

Similarly, the evidence of PW1 does not show that the accused threatened Deepa to

kill her by poisoning if she failed to bring TV and motorcycle. PW2 deposed that on

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27.5.2005 Deepa and appellant-Pramod visited her house. Deepa again complained

that her mother-in- law threatened her not to return unless her parents give her Rs.

1.5 lakhs. Appellant-Pramod also demanded Hero Honda motorcycle. She stated

that they were not rich enough to give motorcycle. PW 2 deposed that because of

their attitude Deepa was reluctant to go to her matrimonial house, therefore, they sent

Kirti Pardeshi (PW3), elder sister, with them. The aforesaid version of PW2 with

regard to the incident dated 27.5.2005 has not been stated by PW1 who has lodged

the complaint. Thus, there is no corroboration to the version of PW2, by PW1.

14. According to PW2, on 29.5.2005, she along with her sister went to the

house of Deepa. The accused persons picked up quarrel with them. They blamed that

they have failed to pay Rs.1.5 lakhs. Deepa also informed them that the accused

were harassing her for Rs.1.5 lakh and she would not remain there any more. PW2

however returned back home with PW 3-Kirti. PW2 deposed that on 30.5.2005 she

received a phone call that Deepa was serious. When she reached there she saw the

dead body of Deepa lying in the front room. Her skin was found to be greenish. PW2

then lodged the report in the Police Station. Significantly, the prosecution has failed

to produce the report lodged by PW2 in the Police Station. The prosecution has

suppressed the true genesis of the crime. Moreover, it is not clear as to why PW2

failed to lodge the complaint against the accused if at all they were harassing her

daughter for Rs. 1.5 lakhs and the other objects of desire.

15. The testimony of PW3-Ku.Kirti Pardeshi, depicts that four days after

the marriage, Deepa complained against the accused stating that they were harassing

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her for chain, motorcycle, ring and Rs. 1 lakh which they had spent in marriage. Deepa

was then hospitalized for two months thereafter. She was brought at her parental home.

Deepa became very weak. On enquiry, Deepa informed her that whenever she takes

meals, the accused used to pass sarcastic comments on Deepa. According to PW3

when Deepa visited their house on 27.5.2005 along with her husband, she informed her

parents that her in-laws were threatening her to bring Rs. 1 lakh from her parents

which they had spent in marriage else to remain at her parental house. Significantly,

the said version of PW3 does not find place in the versions of PW1 and PW2. PW3

stayed with Deepa till 29.5.2005 and noticed that appellant-Pramod used to talk rudely

with Deepa wth regard to dowry. The said version of PW3 seems to be a general

statement made by her. On 29.5.2005, her mother came to the house of the accused

and requested them not to torture Deepa. She then returned with her mother to her

house on the next day morning. PW3 then received a telephonic message that Deepa

was serious. When they reached the house of Deepa, she found her dead body lying

in her bed room. The testimony of PW3 shows that she did not speak about her

maternal aunt, whereas PW2 states that her sister also accompanied them to the

house of Deepa. PW3 no doubt speaks about the rude behaviour of the accused,

however, failed to quote any specific instance against the accused.

16. The testimony of PW5-Sarika Pali shows that Deepa met her four to

five days prior to her death along with her husband. Deepa informed PW5 that the

accused were harassing her for colour TV and hero Honda motorcycle. They were

blaming her parents that if they are not in a position to present the said articles they

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should offer two room block. An improvement was brought in the testimony of PW5

in her cross-examination that Deepa and her husband had been to her house and

blamed the accused. It was further admitted by PW5 that whatever she had stated

before the court was never disclosed by her to anyone. The said version of PW5 makes

her entire testimony doubtful.

17. Now coming to the allegations against the accused that they had ill-

treated Deepa which led her to commit suicide, it would be advantageous to go through

the provisions under section 498-A of the Indian Penal Code. In this regard, Section

498-A of the Indian Penal Code reads as under :

“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 fine.

Explanation.- For the purposes of this section. “cruelty”
means –

(a) any 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) 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.”

Keeping in mind the aforesaid provision under section 498-A of the

Indian Penal Code, the testimony of the prosecution witnesses is scrutinized cautiously

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and found that the prosecution has failed to make out a cogent case against the

accused.

18. In this context, an useful reference can be made to the judgment in the

case of Ravindra Pyarelal Bidlan others vs. State of Maharashtra, reported in 1993

Mh.L.J. 658, more particularly para no.26 thereof , which reads thus:-

“26. Sub-clause (b) of the explanation to Section 498A provides that
cruelty means 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. Sub-clause(b)
does not make each and every harassment cruelty. The harassment has
to be with a definite object, namely, to coerce the woman or any person
related to her to meet any unlawful demand. Hence, mere harassment
by itself is not cruelty. Mere demand for property etc, by itself is also not
cruelty. It is only where harassment is shown to have been committed for
the purpose of coercing a woman to meet the demands that is cruelty
and this made punishable under the Section. In other words, it is not
every harassment or every type of cruelty that would attract section
498A. It must be established that the beating or harassment was with a
view to force the wife to commit suicide or to fill illegal demands of the
husband or the in-laws.”

As discussed above, in the instant case, there is no convincing evidence

on record to show that Deepa was ill-treated by coercing her to meet the demands at

the hands of the accused.

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19. Now, so far the allegations of dowry deaths are concerned, in the case

of Appasaheb and another vs. State of Maharashtra, reported in AIR 2007 SC 763,

what was allegedly asked for by the accused-husband and mother-in-law of deceased

was some money for meeting domestic expenses and for purchasing manure. Since an

essential ingredient of Section 304-B IPC viz, demand for dowry was not established,

the conviction of the appellants could not be sustained. Paragraph No.6 of the said

judgment reads thus:

“6. Two essential ingredient of Section 304-B IPC, apart from others,
are (i) death of women is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances, and (ii) women is subjected to
cruelty or harassment by her husband or any relative of her husband for, or
in connection with, any demand for “dowry”. The explanation appended to
sub-section (1) of Section 304-B IPC says that “dowry” shall have the same
meaning as in Section 2 of Dowry Prohibition Act, 1961.
Section 2 of Dowry Prohibition Act reads as under :-

“2. Definition of “dowry” – In this Act “dowry” means any property or valuable
security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to
either party to the marriage or to any other person, at or before or any time
after the marriage in connection with the marriage of the said parties, but
does not include dowry or mahr in the case of persons to whom the Muslim
Personal Law (shariat) applies.

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In view of the aforesaid definition of the word “dowry” any property or
valuable security should be given or agreed to be given either directly or
indirectly at or before or any time after the marriage and in connection with
the marriage of the said parties. ….

A demand for money on account of some financial stringency or for
meeting some urgent domestic expenses of for purchasing manure cannot
be termed as a demand for dowry as the said word is normally understood.”

20. In the case of Sunil Bajaj vs. State of M.P., reported in AIR 2001 SC

3020, it is held by Hon’ble Apex Court that when no offence was made out, it becomes

necessary to disturb such order of conviction and sentence to meet the demand of

justice. It is only when the ingredients of Section 304B are established by acceptable

evidence such death shall be called “dowry death” and such husband or his relative

shall be deemed to have caused her death. (para 5 and 6)

21. In the case of State of Rajasthan vs. Teg Bahadur and others, reported

in (2004 13 SCC 300, Para no.18 thereof reads thus,

“Our attention was drawn to Section 113B of the Evidence Act and Section
304B of the Indian penal Code by the learned counsel appearing for the
accused. A conjoint reading of Section 113B of Indian Evidence Act and
Section 304-B of the Indian Penal Code shows that there must be material
to show that soon before her death the victim was subjected to cruelty or
harassment. The prosecution has to be rule out the possibility of a natural
or accidental death so as to bring it within the purview of “death occurring
otherwise than in normal circumstances..”…..

22. In State of A.P. vs. Raj Gopal Asawa and another, reported in (2004) 4

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SCC 470, the Hon’ble Supreme Court para 10 and Para 11 observed thus,

10. Section 113-B of the Evidence Act is also relevant for the
case at hand. Both Section 304-B IPC and Section 113-B of the Evidence
Act were inserted as noted earlier by the Dowry Prohibition (Amendment)
Act 43 of 1986 with a view to combat the increasing menace of dowry
deaths. Section 113-B reads as follows:-

“113-B: Presumption as to dowry death- When the question is
whether a person has committed the dowry death of a woman and
it is shown that soon before her death such woman has been
subjected by such person to cruelty or harassment for, or in
connection with, any demand for dowry, the Court shall presume
that such person had caused the dowry death.

Explanation For the purposes of this section ‘dowry death’ shall
have the same meaning as in Section 304-B of the Indian Penal
Code (45 of 1860).”

The necessity for insertion of the two provisions has been amply analysed
by the Law Commission of India in its 21st Report dated 10th August, 1988
on ‘Dowry Deaths and Law Reform’. Keeping in view the impediment in the
pre-existing law in securing evidence to prove dowry related deaths,
legislature thought it wise to insert a provision relating to presumption of
dowry death on proof of certain essentials. It is in this background
presumptive Section 113-B in the Evidence Act has been inserted. As per
the definition of ‘dowry death’ in Section 304-B IPC and the wording in the
presumptive Section 113-B of the Evidence Act, one of the essential
ingredients, amongst others, in both the provisions is that the concerned
woman must have been “soon before her death” subjected to cruelty or
harassment “for or in connection with the demand of dowry”. Presumption
under Section 113-B is a presumption of law. On proof of the essentials

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mentioned therein, it becomes obligatory on the Court to raise a
presumption that the accused caused the dowry death. The presumption
shall be raised only on proof of the following essentials:
(1) The question before the Court must be whether the accused has
committed the dowry death of a woman. (This means that the presumption
can be raised only if the accused is being tried for the offence under
Section 304-B IPC).

(2) The woman was subjected to cruelty or harassment by her husband or
his relatives. (3) Such cruelty or harassment was for, or in connection with
any demand for dowry. (4) Such cruelty or harassment was soon before
her death.

11. A conjoint reading of Section 113-B of the Evidence Act
and Section 304-B IPC shows that there must be material to show that
soon before her death the victim was subjected to cruelty or harassment.
Prosecution has to rule out the possibility of a natural or accidental death
so as to bring it within the purview of the ‘death occurring otherwise than in
normal circumstances’. The expression ‘soon before’ is very relevant
where Section 113-B of the Evidence Act and Section 304-B IPC are
pressed into service. Prosecution is obliged to show that soon before the
occurrence there was cruelty or harassment and only in that case
presumption operates. Evidence in that regard has to be led by
prosecution. ‘Soon before’ is a relative term and it would depend upon
circumstances of each case and no strait-jacket formula can be laid down
as to what would constitute a period of soon before the occurrence. It
would be hazardous to indicate any fixed period, and that brings in the
importance of a proximity test both for the proof of an offence of dowry
death as well as for raising a presumption under Section 113-B of the
Evidence Act. The expression ‘soon before her death’ used in the
substantive Section 304- B IPC and Section 113-B of the Evidence Act is

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present with the idea of proximity test. No definite period has been
indicated and the expression ‘soon before’ is not defined. A reference to
expression ‘soon before’ used in Section 114. Illustration (a) of the
Evidence Act is relevant. It lays down that a Court may presume that a
man who is in the possession of goods ‘soon after the theft, is either the
thief has received the goods knowing them to be stolen, unless he can
account for his possession. The determination of the period which can
come within the term ‘soon before’ is left to be determined by the Courts,
depending upon facts and circumstances of each case. Suffice, however,
to indicate that the expression ‘soon before’ would normally imply that the
interval should not be much between the concerned cruelty or harassment
and the death in question. There must be existence of a proximate and
live-link between the effect of cruelty based on dowry demand and the
concerned death. If alleged incident of cruelty is remote in time and has
become stale enough not to disturb mental equilibrium of the woman
concerned, it would be of no consequence.

23. In the case of Rajinder Singh vs. State of Punjab, reported in 2016(1)

Mh.L.J. (Cri) (S,.C.) 169, the Hon’ble Supreme Court, in para 23, observed as under :

“What must be borne in mind is that the word “soon” does not mean
“immediate”. A fair and pragmatic construction keeping in mind the great
social evil that has led to the enactment of section 304B would make it clear
that the expression is a relative expression. Time lags may differ from case
to case. All that is necessary is that the demand for dowry should not be
stale but should be the continuing cause for the death of the married
woman under Section 304B”

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In the present case, prosecution has failed to establish that soon

before her death, Deepa was subjected to cruelty.

24. Learned counsel Mr.Ravlani, placed reliance upon the judgment, in the

case of Dhanraj Ghadge and another vs. State of Maharashtra, reported in 2014(4)

Mh.L.J. 375. In that case, it was held that since medical evidence showed victim-lady

sustained bodily injury and death was not in normal circumstances, the onus lies on

appellant-accused to explain injuries caused on person of victim. In the instant case

there is no such case of injuries on the person of deceased. Reliance was further

placed on the judgment, in the case of Hari Om vs. State of Haryana and another,

reported in 2015(2) Mh,.L.J.(Cri) 479, wherein it is held that wife committing suicide

within period of one month from marriage by consuming poison, conviction based on

evidence of suicide note left by deceased. In that case, there was direct nexus

between death of deceased, demand of dowry and suicide note containing reasons

for her suicide. It was duly proved that suicide note was in own handwriting of

deceased and offence u/ss. 304B and 498A proved against the appellant. The facts

in the present case differ from that case. Hence, this case law is not helpful. The case

laws relied upon by learned Advocate are of no relevance to the case of the

prosecution.

25. The overall assessment of the prosecution witnesses reveal that their

testimony is not in consonance with each other. There are material discrepancies in

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their testimony which go to the root of the prosecution case and creates a serious doubt

about demand of dowry made by the accused. Significantly, if at all it was the case of

the prosecution witnesses that the Deepa was subjected to cruelty soon before her

death, it is not clear as to why the parents of Deepa had not lodged any complaint in the

police station that Deepa was ill-treated by the accused and the ill-treatment was of

such a nature that drove her to commit suicide. As already discussed above, the

prosecution has failed to prove its case beyond reasonable doubt. As far as the

investigation is concerned, the Investigating Officer PW6-Gulab Wadke, PSI, shows that

he admitted that he has not annexed statements of neighbours as they were not

supporting the prosecution case. The said version of PW6 indicates that the statements

of neighbours were not recorded by Investigating Officer as they were not supporting

the case of the prosecution which shows that there were no independent witnesses to

support the case of the prosecution witnesses who were the relatives of the deceased.

26. In view of the above facts and circumstances as discussed above,

Criminal Appeal No.652/2006 needs to be allowed and Criminal Revision No. 315/2006

is to be dismissed. Hence, the following order is passed:-

ORDER

(i) Criminal Appeal No. 652/2006 is allowed.

(ii) The impugned judgment of conviction and sentence dated 31 st October, 2006

passed by learned Ad-hoc District Judge-6 ASJ, Nagpur, is set aside. The appellant

is acquitted of the offence punishable u/s 498A of IPC.

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(iii) The fine amount if paid, shall be refunded to the accused.

(iv) The appellant is on bail. His bail bonds shall stand cancelled.

(v) Criminal Revision No.315/2006 is dismissed.

JUDGE

sahare

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