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2007 DIGILAW 2235 (RAJ)

Mahesh Gupta v. State of Rajasthan

2007-11-22

MAHESH CHANDRA SHARMA, SHIV KUMAR SHARMA

body2007
JUDGMENT 1. - Soon before her death Babita was cruelly treated for demand of dowry by her husband, appellant herein. He was put to trial before learned Additional Sessions Judge (Fast Track) Hindaun, who vide judgment dated October 15, 2001 convicted and sentenced the appellant under section 302 IPC to suffer imprisonment for life and fine of Rs. 100/-, in default to further suffer simple imprisonment for one month. 2. It is the prosecution case that on March 18, 2000 informant Rajendra Kumar Agrawal (Pw. 2) submitted a written report (Ex.P-1) at Police Station Kotwali Hindaun City to the effect that his sister Babita was married to to appellant Mahesh Chand 5-6 years back and two daughters Pooja and Arti were born out of the wedlock. Although sufficient dowry was given in the marriage, appellant used to harass Babita for the demand of motor cycle and Fridge. On March 17, 2000 Babita came to the house of informant and intimated that appellant and his parents were adament to kill her in case motor cycle was not given to them. The informant however persuaded her to go back. But on the next day around 3.30 PM he received information about quarrel between appellant and Babita and when the informant reached to her house he found Babita dead. On that report a case under section 304B IPC was registered and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, appellant was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Hindaun. Charge under section 302 IPC was framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 15 witnesses. In the explanation under Section 313 CrPC, the appellant claimed innocence. One witness in support of defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. From the evidence of Vishambhar Dayal (Pw.3), Rajendra Kumar (Pw.2) and Dr. Ram Lal Meena (Pw. 11) we notice that death of Babita occurred otherwise than under normal circumstances. She was subjected to harassment before her homicidal death by her husband (appellant) for and in connection with the demand of dowry. 4. 3. From the evidence of Vishambhar Dayal (Pw.3), Rajendra Kumar (Pw.2) and Dr. Ram Lal Meena (Pw. 11) we notice that death of Babita occurred otherwise than under normal circumstances. She was subjected to harassment before her homicidal death by her husband (appellant) for and in connection with the demand of dowry. 4. The expression 'dowry' is defined by Section 2 of the Dowry Prohibition Act, 1961 (for short 'the Act'), as meaning anything which is given either directly or indirectly, by one party to a marriage to the other party to the marriage or by the parents of either party to a marriage or by any other person to either party to the marriage or to any other per-on'' at or before or after the marriage as consideration for the marriage of the said parties. The Act has been amended by Act 63 of 1984 and Act 43 of 1986. Formerly dowry was defined as property given as consideration for the marriage but the words "as consideration for the marriage" have been omitted and 1 substituted by the words "in connection with the marriage''. Now dowry means any property given or agreed to be given by the parents of a party to the marriage at marriage or before marriage or at any time after marriage in connection with the marriage. 5. Considering the definition of dowry their Lordships of Supreme Court in Reema Aggarwal v. Anupam, 2004 (1) WLC (SC) Cri. 442 : (2004) 3 SCC 199 , indicated thus (Para 14) "The definition of the term "dowry" under Section 2 of the Dowry Act shows that any property or valuable security given or "agreed to be given' either directly or indirectly by one party to the marriage to the other party to the marriage "at or before or after the marriage" as a ''consideration for the marriage of the said parties" would become "dowry' punishable under the Dowry Act. Property or valuable security so as to constitute "dowry" within the meaning 15 of the Dowry Act must, therefore, be given or demanded "as consideration for the marriage'. 6. Interpreting the words 'in connection with the marriage of the said parties", the Apex Court in Satvir Singh v. State of Punjab, 2002 (1) WLC (SC) Cri. Property or valuable security so as to constitute "dowry" within the meaning 15 of the Dowry Act must, therefore, be given or demanded "as consideration for the marriage'. 6. Interpreting the words 'in connection with the marriage of the said parties", the Apex Court in Satvir Singh v. State of Punjab, 2002 (1) WLC (SC) Cri. 122 : (2001) 8 SCC 633 , propounded as under-- "The word "dowry" in Section 304-B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies prevalent in different societies. Such payments are not enveloped within the ambit of "dowry'. (Emphasis Supplied) 7. The word ''agreement' referred in Section 2 has also been considered in Pawan Kumar v. State of Haryana, (1998) 3 SCC 309 by their Lordships of Supreme Court and it was observed as under (Para 16) "Demand for dowry neither conceives nor would conceive of any agreement. The word 'agreement" referred to in Section 2 of the Dowry Prohibition Act, 1961 has to be inferred on the facts and circumstances of each case. The interpretation that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. "Dowry" definition is to be interpreted with the other provisions of the Act including Section 3. which refers to giving or taking dowry and Section 4 which deals with penalty for demanding dowry, under the 1961 Act and the Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. "Dowry" definition is to be interpreted with the other provisions of the Act including Section 3. which refers to giving or taking dowry and Section 4 which deals with penalty for demanding dowry, under the 1961 Act and the Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. This leads to the inference, when persistent demands for TV and Scooter are made from the bride after marriage or from her parents, it would constitute to be in connection with the marriage and it would be a case of demand of dowry within the meaning of Section 304-B IPC. It is not always necessary that there be any agreement for dowry." 8. In K. Prema S. Rao v. Yadla Srinivasa Rao, 2003 (1) WLC (SC) Cri. 559 : AIR 2003 SC 11 their Lordships of Supreme Court examined the words 'soon before her death' and observed as under "To attract the provisions of 5.304-B, IPC, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment in connection with the demand for dowry'. There is no evidence on record to show that the land was demanded as a dowry. It was given by the father to the deceased in marriage ritual as "PasupukumumaH. The harassment or cruelty meted out to the deceased wife by the husband after the marriage to force her to transfer the land in his name was not in connection with any demand for dowry'. One of the main ingredients of the offence of "demand of dowry" being absent in this case, the accused could not be said to have committed offence under section 304-B.'1 9. Section 304B does not create new offence rather it reiterates in substance the offence under section 302 IPC. The object of enacting section 304B was to combat the menace of Dowry-Deaths. By enacting Section 304-B the Parliament seems to have laid more emphasis on the deterrent theory of punishment in criminal jurisprudence to curb the evil of bride burning. Section 304B does not create new offence rather it reiterates in substance the offence under section 302 IPC. The object of enacting section 304B was to combat the menace of Dowry-Deaths. By enacting Section 304-B the Parliament seems to have laid more emphasis on the deterrent theory of punishment in criminal jurisprudence to curb the evil of bride burning. It enacase that where the death of woman is caused by any burns or bodily injury or 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 by her husband or relatives for or in connection of demand of dowry, such husband or relative shall be punished with imprisonment for a minimum period of seven years, which may extend to life imprisonment. 10. As already noticed that the cruelty meted by the deceased was in connection with demand of dowry and she met with the death within seven years of her marriage. Thus offence under section 304B IPC is clearly made out against appellant. Since the deceased left two minor daughters and there is no body to look after them, in our opinion, the ends of justice would be met in sentencing the appellant to suffer minimum sentence prescribed. 11. For these reasons, we partly allow the appeal and instead of section 302 we convict the appellant under section 304B IPC and sentence him to suffer rigorous imprisonment for seven years. Looking to the fact that the appellant has already suffered the sentence for a period of more than seven years and seven months, we direct that the appellant Mahesh Gupta shall be released forthwith, if he is not required to be detained in any other case.The impugned judgment of learned trial court stands modified as indicated above.Appeal Partly Allowed by Modifying Conviction and Sentence as Above. *******