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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.342 OF 1999
The State of Maharashtra,
Through Police Station Kasarshirsi,
Tq-Nilanga, Dist-Latur.
…APPELLANT
VERSUS
1) Harisarvottam s/o Govind Joshi,
Age-28 years,
2) Govind Madhavracharya Joshi,
Age-62 years,
3) Sow. Kusum Govind Joshi,
4) Ramkrishnacharya s/o Madhavacharya
Joshi,
All R/o- Aurad Shahajani,
Tq-Nilanga, Dist-Latur.
…RESPONDENTS
(Ori. Accused)
…
Mr. R.V. Dasalkar, A.P.P. for Appellant -State.
None present for Respondent Nos. 1 to 4.
…
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
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DATE OF RESERVING JUDGMENT : 7TH JUNE,2017.
DATE OF PRONOUNCING JUDGMENT: 21ST JUNE, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
1. This Appeal is directed against the
Judgment and order dated 31st May, 1999, passed by
the Additional Sessions Judge, Nilanga in Sessions
Case No.34 of 1998 (Previous Case No.184 of 1997),
thereby acquitting Respondent Nos.1 to 4 (original
accused Nos. 1 to 4), from the offences punishable
under Section 304-B, 498-A, 306 read with 34 of
the Indian Penal Code (for short “I.P. Code”).
2. The prosecution case in nut-shell, is as
under:-
A) A marriage of victim Archana was
solemnized with accused No.1 – Harisarvottam
Govind Joshi at Udgir in the month of May, 1995.
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accused Nos. 2 and 3 namely Govind Joshi and Kusum
Joshi are parents of accused No.1 – Harisarvottam.
Accused No.4 – Ramkrishnacharya is uncle of
accused No.1 Harisarvottam. The husband and his
parents were residing together. Archana was being
ill-treated by the accused persons in connection
with demand of colour T.V. and of Rs.25,000/-. She
was also being subjected to beating by her husband
and parents of husband, on the ground that she
could not conceive. Moreover, all the accused
persons used to beat and humiliate Archana on
trifle matters like cooking of excess food, non-
cooking of food properly etc. They also used to
cause her to rub her nose on the ground and to beg
pardon for such trifle matters in presence of
neighbours and relatives.
B) On 30th December, 1996 in the morning
accused No.1 Harisarvottam asked Archana to serve
him meals, when she was fetching water. Therefore,
she asked him to get himself serve the food. On
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such reply accused No.1 Harisarvottam got annoyed
and beat her. Because of such beating and routine
cruel treatment, Archana poured kerosene on her
person and set herself on fire.
C) Accused No.1 Harisarvottam, on the very
same day, took her to Civil Hospital, Latur and
admitted her in the hospital. Concerned Medical
Officer intimated the matter to the Police
Station, Gandhi Chowk, Latur and accordingly first
dying declaration of Archana came to be recorded
by P.H.C. Narayan on 30th December, 1996 itself. A
second dying declaration was recorded by police on
31st December, 1996 through Executive Magistrate,
Latur.
D) On 5th January, 1997 Ramrao, father of
Archana came to know from her about the details of
the occurrence dated 30th December, 1996. Hence on
6th January, 1997 Ramrao lodged First Information
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Report Exhibit-57 to Police Station Kasarshirsi
specifying therein details of cruel treatment
which was being given to Archana by her husband,
parents and uncle of her husband, and also
specified therein that all the accused persons
poured kerosene on the person of Archana after
beating her and set her on fire. On the basis of
said First Information Report, a crime was
registered by P.S.O. of Police Station,
Kasarshirsi at Cr. No.3 of 1997 for an offence
punishable under Sections 307, 323, 498-A, 34 of
the I.P. Code and set criminal law in motion.
E) The Investigating Officer Mr. Walchand
Munde, P.S.I. of Police Station, Kasarshirsi
recorded statement of Archana by visiting Civil
Hospital, Latur on 7th January, 1997. On the very
day, he got recorded dying declaration of Archana
through Mr. Pore, a Special Judicial Magistrate.
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F) The Investigating Officer visited the
place of occurrence on 8th January, 1997 and drawn
panchnama of place of occurrence in presence of
two panchas and also seized partly burnt clothes
i.e. saree, petticoat, blouse of Archana, as well
as one container containing 4 litres of Kerosene
and also recorded statements of witnesses.
G) On 15th January, 1997 Archana died, hence
inquest panchnama was conducted on the very day
and dead body was referred for autopsy. The
Medical Officer concerned expressed his opinion
about a probable cause of death as “shock due to
56% burns”.
H) Accused persons were arrested during the
course of investigation. On completion of
investigation, sufficient evidence was available
on record for commission of offences punishable
under Sections 498-A, 304-B, 323, read with 34 of
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the I.P. Code. Hence charge-sheet was filed
against the accused persons in the Court of
J.M.F.C., Nilanga on 22nd April, 1997. The
J.M.F.C., Nilanga has committed the case to the
Court of Sessions in due course.
I) The trial Court framed charge against
accused on 31st October, 1998 for the offences
punishable under Sections 304-B read with 34 of
the I.P. Code, 306 read with 34 of the I.P. Code
and also for the offence under Section 498-A read
with 34 of the I.P. Code. A charge was explained
against all the accused persons. The accused
persons pleaded not guilty and claimed to be
tried. As per the defence of the accused, Archana
was sensitive and short tempered lady by nature
and her death was a result of her own act.
3. To prove the case, the prosecution has
examined in all seven witnesses. After recording
the evidence and conducting full fledged Trial,
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the Trial Court acquitted all the accused persons
from the offence punishable under Section 304-B,
498-A, 306 read with 34 of the I.P. Code. Hence
this Appeal by the State.
4. Learned A.P.P. appearing for the State
invites our attention to the evidence of PW-1
Vinayak, PW-2 Upendra, PW-3 Jankabai and PW-4
Ramrao and submits that if their evidence is read
in its entirety, then it unequivocally indicates
that there was ill-treatment and harassment to
Archana at the hands of the accused. It is
submitted that Archana committed suicide due to
instigation and abetment by the accused. He
submits that there was no reason for Archana to
commit suicide other than ill-treatment and
harassment at the hands of the accused. He further
invites our attention to four dying declarations
given by Archana and submits that in the dying
declarations Archana has specifically stated that
due to harassment and ill-treatment at the hands
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of the accused she committed suicide. Therefore,
he submits that the Appeal may be allowed.
5. We have given careful consideration to
the submissions of the learned A.P.P. appearing
for the State. With his able assistance we have
perused the entire notes of evidence, so as to
find out whether the findings recorded by the
trial Court are in consonance with the evidence
brought on record or otherwise.
6. Prosecution examined PW-1 Vinayak
Martandrao Kulkarni, uncle of Archana, PW-2
Upendra Dattatraya Kulkarni, husband of Archana’s
sister, PW-3 Jankabai Ramrao Kulkarni, mother of
Archana and PW-4 Ramrao Martandrao Kulkarni,
father of Archana, on the point of demand and ill-
treatment, harassment to Archana at the hands of
the accused. All these four witnesses have deposed
that when they visited the hospital, Archana gave
oral dying declaration to them.
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7. Prosecution examined PW-5 Narayan
Bhujangrao Ranzunjare, Police Head Constable, who
recorded dying declaration of Archana (Exhibit-64)
on 30th December, 1996. PW-6 Shashikant Janardhan
Pore, Special Judicial Magistrate recorded dying
declaration of Archana (Exhibit-69) on 7th
January, 1997. PW-7 Walchand Pandharinath Munde,
P.S.I. was the Investigating Officer.
8. Upon perusal of the evidence of the
prosecution witnesses on the point of alleged
harassment/ ill-treatment and unlawful demand,
PW-4 Ramrao Martandro Kulkarni, father of Archana
(deceased), in his deposition, stated that
marriage of Archana with accused No.1
Harisarvottam was performed in the month of May,
1995 and after marriage Archana had been to her
matrimonial house at Aurad-Shahajani. It appears
that after one month of marriage he visited Aruad-
Shahajani and the accused/Respondents told him
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that Archana was not properly performing her
household duties and they also complained about
non-giving of certain articles in the marriage
which were remained to be given by PW-4. It
appears that accused told him about inexperience
of Archana in cooking the food and further
complained that she was cooking excess food. On
the whole it appears that such narration by the
accused was of trifle nature except that they
asked PW-4 to give certain articles which were
remained to be given in marriage. This is one part
of the evidence of PW-4.
9. Evidence of PW-4 to the extent of
unlawful demand of Rs.25,000/- and set of colour
television by the accused persons can be
considered as second part of ill-treatment and
harassment given by the accused to Archana. If the
evidence of other prosecution witnesses on the
point of alleged harassment, ill-treatment and
unlawful demand of Rs.25,000/- and set of colour
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television is considered, more or less they have
also stated like PW-4 in their evidence before the
Court. So far actual incident dated 30th December,
1996 of pouring kerosene by Archana on her person
and setting ablaze herself, according to PW-1 to
PW-4, the same was on account of non-fulfillment
of demand of Rs.25,000/- and set of colour
television. All these four witnesses have stated
that Archana told them that due to routine ill-
treatment given to her by the accused, she poured
kerosene on her person and set herself ablaze. If
the evidence of PW-4 Ramrao and PW-3 Jankabai,
father and mother of Archana is considered, they
have stated that because of routine ill-treatment
Archana had poured kerosene on her person and told
her husband that she would get herself burnt. It
is further stated that husband of Archana had
thrown match box on the person of Archana which
was lying on the platform of kitchen. If the
evidence of these four prosecution witnesses i.e.
PW-1 to PW-4, on the point of harassment, ill-
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treatment and unlawful demand is considered in its
entirety, it suffers from omissions,
exaggerations, contradictions and improvements and
makes it unbelievable to rely upon the same. If
the cross-examination of PW-4 Ramrao is considered
carefully, PW-4 admitted that on 30th December,
1996 nothing was disclosed to him by his daughter
regarding the occurrence. When he was confronted
with the document at Exhibit-57 which was scribed
by him, he fairly stated that nothing to the
effect that all the accused persons had subjected
Archana to beating and poured kerosene and set her
on fire was stated to him by Archana. He stated
that Exhibit-57 was scribed by him on the basis of
suspicion only. As already discussed, the evidence
of PW-1 to PW-4 can be divided into two parts,
firstly harassment by the accused on account of
trifle grounds of not properly performing the
daily work in the house such as cooking excess
food, wastage of remaining food and asking her by
the accused to beg pardon by rubbing nose in front
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of relatives in case of wastage of food, and
secondly on account of ill-treatment and non-
fulfillment of unlawful demands by the accused,
Archana poured kerosene on her person and set
herself ablaze, and according to PW-3 and PW-4
accused No.1 Harisarvottam threw match box on her
person, which is not stated by other two
witnesses.
10. So as to appreciate the charge framed for
the offences punishable under Section 304-B read
with 34 of the I.P. Code and also Section 306 read
with 34 of the I.P. Code is concerned, unless
ingredients of said Sections and Section 107 of
I.P. Code are attracted, merely because there was
some sort of harassment on account of trifle
grounds by the accused, it may not be appropriate
to reverse the acquittal of the accused. In order
to appreciate the aforesaid aspect, it would be
apt to make reference to four dying declarations
of Archana. Dying declaration at Exhibit-64 was
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recorded by PW-5 Narayan Bhujangrao Ranzunjare,
Police Head Constable on 30th December, 1996.
Second dying declaration at Exhibit-71 was
recorded by Taluka Executive Magistrate on 31st
December, 1996. Third dying declaration at
Exhibit-69 was recorded by PW-6 Shashikant
Janardhan Pore, Special Executive Magistrate on
7th January, 1997. Fourth dying declaration at
Exhibit-72 was recorded by PW-7 Walchand
Pandharinath Munde, Investigating Officer on 7th
January, 1997.
(i). On 30th December, 1996 statement of
Archana (Exhibit-64) was recorded by PW-5 Narayan.
In said dying declaration, she has stated about
incident of 30th December, 1996 that at about 9.00
a.m. her husband – accused No.1 Harisarvottam
asked why she has not cooked the food and in reply
she stated that there was some delay in cooking
the food on that day, and on that count there was
some quarrel between the couple. On account of
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such quarrel, Archana got angry and in ager she
poured kerosene on her person and set herself
ablaze. She specifically stated that she herself
poured kerosene on her person and took the match
box which was lying on the kitchen platform and
set herself ablaze. She has specifically stated
that when she shouted, her husband and neighbourer
Shantabai Vasantrao Kulkarni poured water on her
person and extinguished the fire. Husband took her
to the hospital by private vehicle at Aurad
Shahajani and thereafter she was shifted to the
Government Hospital at Latur. Admittedly, Archana
survived for fifteen days after said incident and
the prosecution had occasion to record her four
dying declarations. In the dying declaration at
Exhibit-64, as discussed herein above, she has not
stated anything about any harassment, ill-
treatment or unlawful demand either by the husband
or by other co-accused except that on the ground
of not cooking the food within time, there was
some quarrel between herself and her husband
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Harisarvottam.
. Said dying declaration at Exhibit-64 has
been proved by the prosecution by examining PW-5
Narayan Bhujangrao Ranzunjare. In his deposition,
PW-5 stated that he recorded statement of Archana
on 30th December, 1996 in between 1.00 p.m. to
1.30 p.m. It was stated by Archana that on the
ground of non-cooking of food within time, there
was quarrel between herself and her husband and in
anger she poured kerosene on her person and set
herself ablaze. He has specifically stated in his
evidence that contents of statement were read over
to Archana and she signed the said dying
declaration. During cross-examination he stated
that she was able to speak and was conscious to
give such statement and he got satisfied that
patient was conscious and in a position to give
the statement.
(ii). It appears that on 31st December,
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1996 statement of Archana was recorded at about
10.45 a.m. by Taluka Executive Magistrate. Said
dying declaration is at Exhibit-71, which is in
question-answer form. It appears that when she was
asked about the incident, she stated the date and
time of the incident and that in anger she poured
kerosene on her person and set herself ablaze. At
the time of incident, only husband and herself
were present. Her husband wanted to go to the
agricultural field and therefore he asked Archana
why she has not cooked the food yet and said that
he will go to the agricultural field without
having food. There was some quarrel. Archana got
angry and poured kerosene on her person and set
herself ablaze. Husband poured water on her person
and extinguished the fire and she was taken to the
hospital by the husband. She stated that she
herself poured kerosene on her person and set
herself ablaze and nobody was responsible for the
said incident. It appears that she has further
stated that there was no any dispute with anybody
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and in heat of anger she herself poured kerosene
on her person and set herself ablaze. It appears
that though the prosecution did not examine the
said witness, the defence examined the said
witness and the said dying declaration Exhibit-71
was considered by the trial Court. If the dying
declaration at Exhibit-71 is considered, she has
not attributed anything against any accused except
quarrel took place on that day between herself and
accused No.1 Harisarvottam.
(iii). It appears that another dying
declaration of Archana, Exhibit-69, was recorded
on 7th January, 1997 by the Special Executive
Magistrate, Latur i.e. PW-6 Shashikant Janardhan
Pore. In the said dying declaration, she stated
that her marriage was performed one and half year
before the incident dated 30th December, 1996.
There was some harassment by father-in-law and
mother-in-law on account of not cooking the food
properly. She further stated that her husband
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wanted to go to the agricultural field on 30th
December, 1996 and there was some delay in cooking
the food. Her husband told her to pack his tiffin
immediately and he uttered some abusive words. In
reply, Archana also scolded her husband. When this
quarrel was going on, husband started to proceed
to agricultural field, however she caught hold his
hand and asked him to have the meal and there was
quarrel between the couple. However, her husband
had meal and when he went in bathroom to wash his
hands, she poured kerosene on her person and set
herself ablaze. On her shouts, husband immediately
rushed to her and poured water on her person and
extinguished the fire. Husband told her not to
worry, and he will take her immediately to the
hospital, and accordingly she was taken to the
hospital of Dr. Kukade, by her husband. She stated
that other co-accused are also causing some
harassment to her on account of cooking excess
food and also on an allegation of wastage of food.
She has specifically stated that, she had no any
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grievance or grudge against the husband, and she
has grievance against her father-in-law and
mother-in-law. The said dying declaration was
recorded one week after recording dying
declaration at Exhibit-64, which was recorded on
30th December, 1996. If the contents of both the
dying declarations at Exhibit-64 and Exhibit-69
are conjointly read, in the first dying
declaration at Exhibit-64 neither she has
mentioned about any harassment or ill-treatment at
the hands of husband or co-accused except quarrel
took place between the couple on account of non-
cooking the food within time. In dying
declaration at Exhibit-69, as already observed,
she has mentioned about the harassment at the
hands of husband and other co-accused on trifle
grounds or for non performing her duties in the
house promptly. In both these dying declarations,
there is no mention of an unlawful demand of
Rs.25,000/- and set of colour television.
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(iv). Fourth dying declaration was also
recorded on 7th January, 1997 by Investigating
Officer PW-7 Pandharinath Munde, which is at
Exhibit-72. Upon careful perusal of the contents
of the said dying declaration, there is no
signature of the declarant though it is stated
that Archana was conscious and said statement was
read over to her. It appears that in said dying
declaration, Archana stated about harassment and
ill-treatment at the hands of accused persons on
trifle grounds. However, so far incident dated
30th December, 1996 is concerned, she has again
reiterated that in the heat of anger she herself
poured kerosene on her person and set herself
ablaze. There is no any overt-act attributed to
husband or any other accused. It is true that if
the contents of the said dying declaration are
read in its entirety, she has narrated about the
harassment by the accused on account of not
cooking food within time, cooking excess food and
wastage of food etc. As already observed, neither
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the said statement is signed by Archana nor there
is any thumb impression. Be that as it may, even
if the contents of the said dying declaration are
taken as it is, at the most it can be observed
that there was quarrel between Archana and accused
No.1 on account of trifle grounds. In all the four
dying declarations, she has not stated about
unlawful demand of Rs.25,000/- and set of colour
television and on that count there was harassment
and ill-treatment at the hands of the accused.
11. If the contents of all the dying
declarations are read conjointly, there is no any
whisper about unlawful demand of Rs.25,000/- and
set of colour television and there was harassment
and ill-treatment at the hands of the accused on
that count. Therefore irresistible conclusion is
that the evidence of prosecution witnesses i.e.
PW-1 to PW-4 that there was oral dying declaration
to them and Archana told them about ill-treatment
on account of unlawful demands, deserves no
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consideration.
12. In the light of discussion in foregoing
paragraphs, the evidence brought on record by the
prosecution is not sufficient to attract the
cruelty as contemplated under the provisions of
Section 498-A of the I.P. Code. In absence of
proving an unlawful demand for any property or
valuable security or is on account of failure by
wife or any person related to her to meet such
demand, harassment on account of same has not been
proved by the prosecution in as much as, as
already observed Archana in her four dying
declarations at Exhibit-64, Exhibit-69, Exhibit-71
and Exhibit-72 has not stated single word about
unlawful demand of Rs.25,000/- and set of colour
television. Therefore, the cruelty and harassment
of the woman as contemplated under the provisions
of Section 498-A of the I.P. Code is not proved by
the prosecution. In that view of the matter charge
for the offence punishable under Section 498-A
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read with 34 of the I.P. Code shall fail. We do
not find any perversity in the findings recorded
by the trial Court while dealing with the
aforesaid charge for the offence punishable under
Section 498-A read with 34 of the I.P. Code.
13. In the present case charge was also
framed for the offence punishable under Section
304-B read with 34 of the I.P. Code. The
provisions of Section 304-B of the I.P. Code reads
as under:-
“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 “dowry death”, and
such husband or relative shall be deemed to
have caused her death.
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26Explanation- 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 1961).
(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.”
14. In the light of discussion in foregoing
paragraphs that the prosecution failed to prove
cruelty or harassment by the Respondents- accused
in connection with any demand for dowry, an
inevitable conclusion is that the findings of
acquittal recorded by the trial Court deserves no
interference.
15. The Hon’ble Supreme Court had occasion to
consider the scope of Section 304-B of the I.P.
Code in the case of Satvir Singh and others vs.
State of Punjab and another1. In Para 14 of the
Judgment, it is held that :-
1 (2001)8 S.C.C. 633
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“14. The essential components of Section
304-B are: (i) Death of a woman occurring
otherwise than under normal circumstances,
within 7 years of marriage. (ii) Soon
before her death she should have been
subjected to cruelty and harassment in
connection with any demand for dowry. When
the above ingredients are fulfilled, the
husband or his relative, who subjected her
to such cruelty or harassment, can be
presumed to be guilty of offence under
Section 304-B. To be within the province of
the first ingredient the provision
stipulates that “where the death of a woman
is caused by any burns or bodily injury or
occurs otherwise than under normal
circumstance”. It may appear that the
former limb which is described by the words
“death caused by burns or bodily injury” is
a redundance because such death would also
fall within the wider province of “death
caused otherwise than under normal
circumstances”. The former limb was
inserted for highlighting that by no means
death caused by burns or bodily injury
should be treated as falling outside the
ambit of the offence.”
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16. The Supreme Court in the case of Rajinder
Singh vs. State of Punjab2, in Para 23 observed as
under:
“We endorse what has been said by these two
decisions. Days or months are not what is
to be seen. 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.”
17. It is true that in the facts of the
present case, death of Archana occurred within
seven years from the date of marriage and death
occurred otherwise than under normal
circumstances. However, as already discussed in
all the four dying declarations at Exhibit-64,
2 AIR 2015 S.C. 1359
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29
Exhibit-69, Exhibit-71 and Exhibit-72 of Archana,
there is nothing to suggest that soon before the
death or Archana she was subjected to cruelty and
harassment in connection with demand of dowry by
the accused.
18. The charge was also framed for the
offence punishable under Section 306 read with 34
of the I.P. Code. So as to appreciate the said
charge in the light of evidence brought on record
by the prosecution, it will have to be seen
whether the ingredients of Section 107 and Section
306 of I.P. Code are attracted in the facts of the
present case and then only it is possible to hold
that alleged offence under Section 306 of the I.P.
Code is disclosed against the Respondents-accused.
The prosecution has not brought on record cogent
and convincing evidence so as to prove that within
the proximity of alleged incident dated 30th
December, 1996 the Respondents-accused
abetted,intentionally aided or instigated in
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30
alleged commission of suicide by Archana.
19. The Supreme Court, in recent Judgment in
the case of Heera Lal and another vs. State of
Rajasthan (Criminal Appeal No.790 of 2017) decided
on 24th April, 2017, in Para 6 to 10 held thus:
“6. Having heard the learned counsel
appearing for the parties and having gone
through the evidence, we are of the opinion
that Section 113A of the Indian Evidence
Act requires three ingredients to be
satisfied before it can be applied i.e. (i)
that a woman has committed suicide, (ii)
such suicide has been committed within a
period of seven years from the date of her
marriage and (iii) the husband or his
relatives who are charged had subjected her
to cruelty.
7. This Court in an illuminating
Judgment in Ramesh Kumar vs. State of
Chhattisgarh (2001) 9 SCC 618 has stated
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31the law as follows:-
“This provision was introduced by the
Criminal Law (Second) Amendment Act, 1983
with effect from 26-12-1983 to meet a
social demand to resolve difficulty of
proof where helpless married women were
eliminated by being forced to commit
suicide by the husband or in-laws and
incriminating evidence was usually
available within the four corners of the
matrimonial home and hence was not
available to anyone outside the occupants
of the house. However, still it cannot be
lost sight of that the presumption is
intended to operate against the accused in
the field of criminal law. Before the
presumption may be raised, the foundation
thereof must exist. A bare reading of
Section 113-A shows that to attract
applicability of Section 113-A, it must be
shown that (i) the woman has committed
suicide, (ii) such suicide has been
committed within a period of seven years
from the date of her marriage, (iii) the
husband or his relatives, who are charged
had subjected her to cruelty. On existence
and availability of the abovesaid
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32such suicide had been abetted by her
husband or by such relatives of her
husband. Parliament has chosen to sound a
note of caution. Firstly, the presumption
is not mandatory; it is only permissive as
the employment of expression “may presume”
suggests. Secondly, the existence and
availability of the abovesaid three
circumstances shall not, like a formula,
enable the presumption being drawn; before
the presumption may be drawn the court
shall have to have regard to “all the other
circumstances of the case”. A consideration
of all the other circumstances of the case
may strengthen the presumption or may
dictate the conscience of the court to
abstain from drawing the presumption. The
expression – “the other circumstances of
the case” used in Section 113-A suggests
the need to reach a cause – and – effect.
Relationship between the cruelty and the
suicide for the purpose of raising a
presumption. Last but not the least, the
presumption is not an irrebuttable one. In
spite of a presumption having been raised
the evidence adduced in defence or the
facts and circumstances otherwise available
on record may destroy the presumption. The
phrase “may presume” used in Section 113-A
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33Act, which says – “Whenever it is provided
by this Act the court may presume a fact,
it may either regard such fact as proved,
unless and until it is disproved, or may
call for proof of it.”
8. We find that having absolved the
appellants of the charge of cruelty, which
is the most basic ingredient for the
offence made out under Section 498A, the
third ingredient for application of Section
113A is missing, namely, that the relatives
i.e., the mother-in-law and father-in-law
who are charged under Section 306 had
subjected the victim to cruelty. No doubt,
in the facts of this case, it has been
concurrently found that the in-laws did
harass her, but harassment is something of
a lesser degree than cruelty. Also, we find
on the facts, taken as a whole, that
assuming the presumption under Section 113A
would apply, it has been fully rebutted,
for the reason that there is no link or
intention on the part of the in-laws to
assist the victim to commit suicide.
9. In the absence of this vital link, the
mere fact that there is a finding of
harassment would not lead to the conclusion
that there is “abetment of suicide”.
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34
10. On the facts, therefore, we find,
especially in view of the fact that the
appellants have been acquitted for the
crime under Section 498 A of the Code, that
abetment of suicide under Section 306 is
not made out.”
20. Therefore, keeping in view the evidence
brought on record by the prosecution and the
exposition of law in the aforementioned Judgments
by the Supreme Court, in the present case in
absence of any evidence on record suggesting any
instigation, abetment or aid on the part of the
Respondents-accused in commission of pouring
kerosene on her person by Archana and setting her
ablaze, it will have to be held that the alleged
office under Section 306 of the I.P. Code is not
disclosed.
21. In the light of discussion in foregoing
paragraphs, we are of the considered view that the
findings of acquittal recorded by the trial Court
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35
are in consonance with the evidence on record and
there is no perversity as such. The view taken by
the trial Court is plausible and therefore there
is no reason to cause interference in the order of
acquittal. It is settled principle of law that
when the plausible view is taken on the basis of
material on record, in that case even if another
view is possible, is no ground to interfere in the
order of acquittal.
22. For the reasons aforesaid, there is no
merit in the Appeal. Hence the Appeal stands
dismissed. The Bail Bonds of the Respondents-
accused stand cancelled.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
asb/JUN17
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