JUDGMENT ;- By this appeal, the appellants challenge the judgment and order of conviction & sentence rendered by Adhoc Additional Sessions Judge. Washim, in Sessions Trial No.78/2005, wherein .the appellants were tried for the offences punishable under Sections 498-A. 304-B. 306 r/w Section 34 of the I.P.C. The appellants were found guilty by the learned Additional Sessions Judge of the offences punishable under Sections 498-A and 304-Bof the I.P.C. Accordingly.1hey were convicted and sentenced to R,I. for two :years &. seven years respective by besides fine. 2. Facts leading to the prosecution of the present appellants as alleged by the prosecution are thu; The marriage of deceased Pratibha had taken place with appellant No.1 Nitin in the year 2003 as per the traditions & custom of the parties. Appellant No.2 is the father of Appellant No.1, whereas the other appellants are the close relatives of Appellant No.1. the husband of the deceased. Their relations are: Appellant No.2 is the father, appellant No.3 is the brother-in-law. appellant No.4 is the mother and appellant No.5 & 6 are respectively sisters .of appellant No.1. It is alleged that all of them were subjecting deceased Pratibha to mental & physical cruelty and harassment. It was alleged that at the time of Diwali prior to the death of the said Pratibha. she had disclosed that her husband was demanding Rs.50,000/- and as such the appellants were ill-treating her. It is alleged 'that on 26-4-2005 deceased Pratibha had accompanied with her brother Prakash to Walure for attending the marriage .of her father's niece scheduled on 1-5-2005. It is alleged that, at-that time the said Pratibha had disclosed about the ill-treatment, on account of demand of Rs.50.000/-. It is also alleged that she had told 1hat there was danger to her life. if the demand is not met It is furt1beraUeged that on 1-5-2005 appellant no.1 had gone to Wature to attend the said marriage. immediately after the marriage, he took deceased Pratibha to Washim. On 5-5-2005 at about 4 .p.m., the message was received on telephone at the house .of uncle of Pratibha where 'by they were informed that Pratibha had suffered burn injuries and her condition was serious. Parents of the deceased Pratibha were c.al1ed by that message. It was also informed that she was admitted in Reynold Hospital Washim and also that she had set herself on fire. Parents of the deceased Pratibha were c.al1ed by that message. It was also informed that she was admitted in Reynold Hospital Washim and also that she had set herself on fire. On the same day, parents of the deceased went to Reynold Hospita, Washim. They. readied thereat about 7. 30 p.m. They noticed Pratiiblha in burnt condition having been admitted on the Hospital. It is alleged that on arrival of the parents, deceased Pratibiha had wept and stated d1a1t she was set ablaze by all. It is alleged that she could not speak any more and later on she expired at about 11 p. m. it may be mentioned tha1 it is the case of the prosecution that when she was admitted in Reynold Hospital, Washim, the Hospata1au1hOOti.es had reported about her admission to iIlIn:e po]1ce on 5-5-2005 .at about 4.30 p.m. On that basis, police •took a note in the station diary at Sr .NoA3 of 2005. Thereafter again on t'h1,e ,lilea1lh1 IOf said Pratibha, lit W,liH; i'Afo:rmed t(!) the PGucetmat she had expirod .and 00 1ibat basi-s, A.D. No.17Jl,(Jj was registered on 6-5-2005 at aboUlt O .. 50:La It was mentitmed that deceased ihadsuifjf.e!I'ed 90% ibiurns. Thereafter the dead :body was referred tio Ci viI Uospital, Washim f.ora1.1topsy byissWlD:g lettell'. Om post -mol1tem, iIlIn:edead body was handed (Well' to the accused porsoms. Durilllg tlbeoourse .of investigatioo,of A.D., police had visited the spot ,of incident, the spot panchnama was prepared. [nquest panchnama was also prepared. All other necessary formalities were comp:leted. After funeral, .the father of the deceased PW -1 Gulab Babula] Gokanwar lodged repoot tio the police stati 01'1 about ilie allegod harassment :andoommitting «suicide by the deceased. The offenceooder SectiQll 4l)8-Aaoo 306 r/w SectiOJll 34 of the LP.C. bearing Crime No. 176105 was registered. Again investigation was pmceeliled.. The statements of ilhe wlimes:Ses wer.e reoordedand after due im,lestigat:i.olll .• itbe •c~~sheet 'W'litilw!brnit1ed againSit .ala the appellants. 3. Omcom:tnittaJI of the case by the Ge.amedl I.M.P-C. Wailhim. ,d:te Addiuonail Sess~OM Jud,ge, W.ailihim. itried the appeUanrts.. He ff:amedl :dharge for the .offences pLlni:s'hta'l»e under Sectiom; 498-~ 304-8, 306 .rlw 'Sec1iam 34 .of the LP.C l'he same was eJq)ll.alimed ro the accusodlappellbmL They piJ.eaded Dot :gWIty 1IO the $ame .. Their delfe,m.ce. in sh.ort., is that deceased Prratilbha had! suff..ered .accidenltaa bW1ll il1lj,lJries whiie :she was; boili~the milk. 4. ,d:te Addiuonail Sess~OM Jud,ge, W.ailihim. itried the appeUanrts.. He ff:amedl :dharge for the .offences pLlni:s'hta'l»e under Sectiom; 498-~ 304-8, 306 .rlw 'Sec1iam 34 .of the LP.C l'he same was eJq)ll.alimed ro the accusodlappellbmL They piJ.eaded Dot :gWIty 1IO the $ame .. Their delfe,m.ce. in sh.ort., is that deceased Prratilbha had! suff..ered .accidenltaa bW1ll il1lj,lJries whiie :she was; boili~the milk. 4. The prosooIilItIiom Red ilhe eridence of :8wiitne5'SeS in 0l1der liO .eSltalbbslh the guilt ,oj[ .the Bippenant'S. liI::iii necessary 10 have a 1].crlJ)'k 00 tl1el'latw:e .o-f;the evldenoe th.u is adduced. PWI Gldab 1'il ilhe 1f8l!her .of !the <deceased.. He:rn.as ~ a'booit ilhe msc!{os1llre of ,the aI'leg.odl illrreatmea'tand hacassment for de11ml!llndof ,money of Jh; .• 50~{)()(}/- .at.the instance .of appellant no.l. Aifitor ilJhe rdeallID of .the doceasedmdl funeral! etc . .., he had q~ed r.eport w d1e potioe iiitatiioo orally which wasg0t written ;at policestati.oTI as per Exh.47. The offence was regis!tlerecl as per Exh.48. PW-2 P:r:aml1a ~s •.rhemooher of ilhe deceased. She has also .deposed reg;ar.t1bng me disdGsure ,of the iJJ-treatmemt f.or meetll11lg il1be demamd of &.s50 .• oo0/- by :theappeBmt oo.l. PW - 3 Pr.akash is ~e brotbell' of the ,~. He has .alsodeposod airnoot 1hesame .. He iIlra6 speCiifiiCaHy deposed aboult !tibe me'ilsages received ,afrer !the incident of ~ng <of hi'il si siteil' . PW -4 S1!Inrdar is ,tJlue llInde of :the decClil:sed, wbohasdeposod;aboot1he ~ of dowry (0:[ Rs.50 .• OOGI- fm- the ~ of me marriage of deceased PiI'.:il.tib>ka. PW-5 Viija.y PatH ami PW -6 Amod RoiIe are the wii~ to the spot~ and •serizw:eof arJJicDes.. PW. 7 BaJ.u ladhav, A.:S.L has £ecooded the.~ of the complairnmt PW -I Gulab as repott and he has r.egisterecl offlMCe tmder SeotIoo 49S-A, 306 r/w SeatiOf:l 34 of iIlIn:e LP.C :bearing Crime No.176to5. PW-:8, API Rames,h S~ ii:il the 1.0. He nas depl}sod ~ng inqilWy iolo me acciden1.al death :()f thedeceasod wben AD. was registered. Me hail ifit.tl1lhor d.epo:sod a:boult the a:r;rvesttligatioi8 don.e afrer Ith,e .offence was registered. 5. As •.stated aoowe, the defence ojf the~ppeUa.n1:~ i'il that Ilhe deceased had mffen:d acciGmtall fire while_ w.ars OOihng the milk.. The rlemandof mooey oIf R~,OOO'I- alii weU as ,ooosoquonlt d~a""\1lreaitment for meeting 0Ud: Ilha1t demmd has beMdenlied. '" Learned trian JlIlIdge fOWDcil that oft'MCeS umder Secttion49'S-A _ 3OI-B'rIfw .'Soc1iiom 34 of IIlme LP.C. haw..e bom ~ He, howewer, filUlllll tt!hat offeooe IIDDlieI- SectDoo .~ of;tJme I.P.C. i'S oot made 0IS1t. The rlemandof mooey oIf R~,OOO'I- alii weU as ,ooosoquonlt d~a""\1lreaitment for meeting 0Ud: Ilha1t demmd has beMdenlied. '" Learned trian JlIlIdge fOWDcil that oft'MCeS umder Secttion49'S-A _ 3OI-B'rIfw .'Soc1iiom 34 of IIlme LP.C. haw..e bom ~ He, howewer, filUlllll tt!hat offeooe IIDDlieI- SectDoo .~ of;tJme I.P.C. i'S oot made 0IS1t. ~y be .convicted !the appeUanltii for the offence pum~ I\mdor SeclIioms49S-A aodJ04-B of th..e I.P.C ..• thOlllgh :speciifleaany he has DOll: ~d .abmmt; lIbe ;aapttaJ of !the ••••.• ~11Ib; for the o!f1fierrce IOOder Soc:boo 306 <Olf .the l.P_c. in ifiinaa mdeil'. [It .appeu;\; malt :the 0 ••. lis impbed.. 1.I'he:appeUan1's have dD.aIIenp :tho.ir 008ll'Vic1timl for the oIf1Fences under Sccboos 498-:1\ :ad 304-8 of the IPC :and also I1he ., 2424 Nitin Bhagwanrao Paijanwar V s. State of Maharashtra 2008 sentences. It may be mentioned that the State has not preferred any appeal to challenge the acquittal of the appellants for the offence under Section 306 of the Wc. 8. Learned counsel for the appellant Shri. J. B. Kasat has submitted that the offence under Section 304-B of the IPC is not made out. According to him, there was no settlement of dowry, nor there was demand of any dowry or talk therefor, muchless harassment or illtreatment on that ground. According to him, the evidence led by the prosecution as regards alleged disclosure of harassment and illtreatment for the demand of Rs.50,000/- by Appellant No.1 is not reliable. According to him further, the report was lodged by the father quite late i.e. after the death of the deceased even after the funeral. According to him, had there been any demand of dowry or part thereof and ill-treatment on that ground, the father would not have waited for lodging the report till funeral of the deceased is over. More so, when allegedly deceased had made alleged oral dying declaration to the effect that the appellants have ill-treated and harassed her for the demand of dowry. On the contrary, there is evidence on record to suggest that she was treated well till she had returned after attending the marriage of her cousin. According to him, the inferences drawn by the learned trial Judge are not at all warranted and they are not acceptable on the basis of evidence that has come on record. Relying on (2002)2 SCC 619 : [2002 ALL MR (Cri) 1669 (S.C.)], Gananath Pattnaik Vs. According to him, the inferences drawn by the learned trial Judge are not at all warranted and they are not acceptable on the basis of evidence that has come on record. Relying on (2002)2 SCC 619 : [2002 ALL MR (Cri) 1669 (S.C.)], Gananath Pattnaik Vs. State of Orissa; AIR 2002 SC 2078 , Girdhar Shankar Tawade Vs. State of Maharashtra; AIR 2006 SC 680 : [2006 ALL MR (Cri) 934 (S.c.)], Harjit Singh Vs. State of Punjab and (2007)3 SCC (Cri) 468: [2007 ALL MR (Cri) 859 (S.c.)], Appasaheb and another Vs. State of Maharashtra, he submitted that the amount of Rs.50,000/- was not settled as dowry, nor it was demanded. According to him, even if there was any demand, even according to the prosecution witnesses it was in connection with doing work & business by her husband and therefore, it cannot be termed as dowry within 2008 ALL MR (CIi) . Sept . the meaning of the Dowry Prohibition Act and as such there cannot be any offence under Section 304-B of the IPC. Further according to him, there was no ill-treatment caused by the appellants so as to coerce her to meet the demand. It is also his submission that when there is acquittal under Section 306 of the IPC, the appellants could not have been convicted for the offence under Sections 498-A and also under Section 304-B of the IPC. He has also submitted that the evidence led by the prosecution suffers from lack of credibility because of the late report by none the less than the father of the deceased. According to him, as there was no settlement of dowry in view of (2007)3 SCC (Cri) 468, Appasaheb and another Vs. State of Maharashtra the ingredients of offence under Section 304-B of the IPC are not made out and therefore, the appellants need to be acquitted of the offence under Section 498-A and also for the offence under Section 304- B of the IPC by allowing this appeal. 9. Per contra, learned A.P.P. Shri. A. S. Sonare, relying on AIR 2004 SC 1933 : [2004 ALL MR (Cri) 1469 (S.c.)], State of Andhra Pradesh Vs. 9. Per contra, learned A.P.P. Shri. A. S. Sonare, relying on AIR 2004 SC 1933 : [2004 ALL MR (Cri) 1469 (S.c.)], State of Andhra Pradesh Vs. Raj Gopal ~sawa and another, submitted that the demand of money after the marriage can bring the appellants within the purview of the offence under Section 304-B of the IPC, inasmuch as it is not always necessary that there should be any agreement for dowry. According to him, there was disclosure of illtreatment by the deceased to her parents and brother soon before the incident and it was for meeting the demand of dowry of an amount of Rs.50,000/- and as such the learned trial Judge has rightly held appellants guilty of the offence punishable under Sections 498-A and 304-B of the IPC and as such the appeal should be dismissed. He has pressed into service the reasons recorded by the learned trial Judge in support of his order of conviction & sentence of the appellants. 10. In order to appreciate the rival contentions of the parties, it needs to be noted that the incident seems to have occurred after ., .•.. --. ~ ., r I I . ,"oj ALL MR (Cri) Nitin Bhagwanrao Paijanwar Vs. State of Maharashtra 2425 about 3 years of the marriage. There appears muchless proved no prior incident of alleged iII-treatment and harassment to the deceased. It also appears that deceased had delivered a female child by name Sakshi. It is the allegation of the parents of the deceased as well as her brother that she had disclosed about the iIItreatment and harassment meted out by the appellants for demand of Rs.50,OOO/-. 11. In this context, it is necessary to keep in mind that the appellant No.3 Ramesh Kukulwar i.e. brother-in-law of appellant no.l seems to be resident of Chapanwadi, Yavatmal, Distt. Yavatmal; appellant no.5 Sau. Kalpana, his wife, is also resident of Chapanwadi, Yavatmal, Distt. Yavatmal; appellant no.6 Sau. Shalini appears to be resident of Kalmeshwar, Bramhi Gram Panchayat, Wanwate Layout, Distt. Nagpur. Therefore, it clearly appears that 3 appellants are not residents of Washim i.e. the place of appellant no.l. In this behalf, PW1 Gulab, father of the deceased, has stated that appellant No.3 Ramesh and appellant No.5 Sau. Kalpana are resident of Yavatmal and they are residing there since 1987. Nagpur. Therefore, it clearly appears that 3 appellants are not residents of Washim i.e. the place of appellant no.l. In this behalf, PW1 Gulab, father of the deceased, has stated that appellant No.3 Ramesh and appellant No.5 Sau. Kalpana are resident of Yavatmal and they are residing there since 1987. He has also stated that appellant no.6 is the resident of Nagpur and she is residing there since her marriage which took place about 10 years back. She has got one daughter and she used to come to Washim intermittently. This would impliedly mean that there is least possibility of their causing harassment and iII-treatment to the deceased soon before her death, atleast there is no reliable & clinching evidence to that effect. 12. It has come on record that there was no allegation or any complaint of illtreatment or harassment to the deceased prior to the incident. The evidence in this behalf is only of the parents of the deceased and her brother. The question is how far the version of these witnesses is acceptable for basing the conviction of the appellants. 13. Turning to the evidence of PW-l Gulab, it would be seen that he has stated that his daughter disclosed that her husband Nitin appellant no.l and father-in-law Bhagwantrao appellant no.2 used to harass her for brining of Rs.50,OOO/- from them in connection of doing work and business by her husband. He does not say that this amount was settled as dowry and that was being demanded. At this stage. reference to the evidence of PW -4 Sunder. brother of this witness, needs to be made. He has stated that it was settled to pay dowry of Rs.50,OOO/- to perform the marriage of Pratibha and thereafter marriage was performed. This is in total contradiction with the evidence of other witnesses. It is his further evidence that deceased Pratibha had been to his house and asked him to tell herJather to give Rs.50,OOO/to her in-laws and he had asked Pramila that her father has no money to pay and he convinced Pramila that she should go that time. PW-3 Prakash, however, admitted in crossexamination that there was no settlement about payment of any dowry and the marriage was performed without any dispute or quarrel. PW-3 Prakash, however, admitted in crossexamination that there was no settlement about payment of any dowry and the marriage was performed without any dispute or quarrel. In thus goes without saying that the evidence as regards settlement of Rs.50,OOO/- as dowry at the time of marriage of deceased Pratibha and appellant no. 1 Nitin is not reliable & acceptable. The main prosecution witnesses have given 'different versions on this material aspect. 14. The very statement of PW-l Gulab, father of the deceased, in examinationin-chief itself is that the amount was demanded for doing work & business by her husband. It negatives the theory of this amount being the dowry amount settled at the time of marriage. 15. There are many omissions in the statements of the prosecution witnesses. To quote a few, PW -1 Gulab has stated that he cannot assign any reason as to why it is not mentioned in his report that his daughter has telephoned him and conveyed about harassment. Had the deceased conveyed him about the demand of money by appellant no. I and harassment to her, he would have definitely mentioned about the same in his report. PW-2 Pramila, mother of the deceased, has been confronted with many omissions. Suffice it to point out only material omissions that she has not disclosed that on reaching Hospital, her daughter started weeping and she stated that she 2008 ALL MR ICri)• Sept ,;f" -"- .. , 2426 Nitin Bhagwanrao Paijanwar Vs. 'State o,f Maharashwa 2008 •••.; ~ ' .- I I wasablazed by all. She could not assign any reason fas to why these things are not recorded by thle pohce in her statement. 'She was also confronted with the omission .about the di-sch~sure by the deceased regarding demand of Rs.S-OJ)OOI- when she had been at the time of ,marriage to her parents. PW-3 Prakash, NOtlaer d deceased, has deposed that when he wen.t to the hospital (these witnesses), saw his sister, she was severely burnt. She asked them why they<ilid not do it when she had asked i.e .. meeting ,of demand •of Rs.S-O,OOO/-. She had expired at about 11 p.m. It is pertinent to note that this witness has stated that he did not disclose betorethe police about fhediscussion of he himself and his father •OI!ltelephone. She asked them why they<ilid not do it when she had asked i.e .. meeting ,of demand •of Rs.S-O,OOO/-. She had expired at about 11 p.m. It is pertinent to note that this witness has stated that he did not disclose betorethe police about fhediscussion of he himself and his father •OI!ltelephone. He also did not tell many things im his statement before the police, particularly that his sister \littered ,that they failed to comply her direction. 16. AU these witnesses are in tune wit!l:l eacmot:her too say that dec,easedh.ad disc~O&ed them in the Hospita1whel\l she was bei.ng treated for her bum injuries that, because they dial not meet the demand of Rs.50,OOO/-, ~ had suffered the bum injuries,per.haps by not suicidal attempt. H is necessary to bear in m.ind that there iil no case of prosecution that ala ithe appellants had tried to kin her. The ali1e~e.clcase is that ofcomffiitting suicide by tbe deceased, the .case which iil notaccepte.cl by the trial Court. As already pointed out above, the :Statehu .J:l<otpr.eferred any .appeal00 c~ge theaaq.uittat Therefore, .fhiscourt is now left with no altemati ve except to consider as !t.owhether offenceu/s.304-B .of the [PC is ,made lOUt, if not, whether ,there is any case f.or off.oace ,ws.498-A of ,the IPC. 17. I ha've already poonted out above, ,tfuat iIJhe fathec himself says that !\heamoum was ~ ,j,m ,o<>nnecti.om with cloj,l\I!; work. .& . ~ by .appellant oo.l. None ,of 'the wiltness, ex.cept: :PW -4 says that the amount wail settled .aii ~ry at the ,tir.ne ,of marriage.. is. The witneilsell are ~!'I;ammoob in !tiemIDlg bdcu•.e the eo.lJ\rt th,at the if.e:latiOJiU; ibetWeetll ,the parties w,eregood, pemaps ;ti111he ma.mi;age of the :COIKin of ,the -deceas.ed, which 2008 ;o<LJLNIR (Cri) - Sept. tookpJace just some days prior to theaUeged inc,ident. 19. Couplled with this, thefacttrnattne l1eport was lodged on 6-5-2005 would make the findings of the learned trial Judge unsustainable. It is pertinent to note that A.D. was registered by the pohceauthorities immediate'ly aftier the .death of the ,deceased was informed. Evernat that time PW-l Gulab, father of deceasool,did not lodge rep,ort about iH-treatment and harassment caused t>O thedec.e,as;.ed. :rhe information about lodging rep0l1 seelllii .tJ() be of evening on 6-5-2005. Learned A.P.P. has tried to contend that the witnesses i -e, paremil of the deceased were busy il1l attencbn.g the funeral of the deceased and therefore, the pepon wail not lodged immediately. :rhe information about lodging rep0l1 seelllii .tJ() be of evening on 6-5-2005. Learned A.P.P. has tried to contend that the witnesses i -e, paremil of the deceased were busy il1l attencbn.g the funeral of the deceased and therefore, the pepon wail not lodged immediately. The learned tJriaJl Judge has also accepted thiil ex.~lanatioOn. 1Jl\ para 19 ,of his judgment, the karned triaJ Judge has 0bserved that, "Human Hie aDd conduct does not run om dotted hnesor chaJ1tedcourse la!i.d dowrn by statute in conllecti,om .of matrimonial life •of a daughter. The paren:tsare always slow to take quick stepilali to filing repont aggrieved by conduotof husband or rdati'ves of husband of daughter. PracticaUy_ in lodging report by PW - [there is .0.0 inordinate delay. Certainly report was lodged after tunera:ls ;lWef before departure :from W ashim " .. He'he!ld ;tjlult there is no delay in lodging report. The r~ recorded by the learned triai Judge may souod wen, but here is the ,case where thepros.eoutwJ:l hasatUeged that theappel1ants were har.ass:il1l,g the deceased for meeting ow the &ma.'ild of R-s50,OOO/- whidl waS treated as .do>wcy or atleas:t pant of dowry .. It is also Xhe case .of :the proseoution witnesses that deceased had ,told them 11\1 the HospitaH when she was .in painil of 'bum injuries .tkat ibecausethey £bd 'not meet the -demand., she hacldone so .or this inc~dMt had! h<lip,pened. She died at .about 11 p.rn.. The A.D .. was registered and the investigati(j)J\\ W-ti doine., butstaH repofit wa'ilI1lO<1: liOdg,ed. One ,CM und«stand that if s.he was alive, the report wouM n.ot :have bee,A ft()clg.ed 1imilil'leda.aitdy beca:usethere woukl have beel1l ~ome ~ ;of~n,g the matrimonia:J lif.eali-ve. Here ilJber.e . , J '.'"" ;f'I .•.. - , r • •..•... ~.- .. ---------------------------- ALL MR (Cri) Nitin Bhagwanrao Paijanwar Vs. State of Maharashtra 2427 was no such case. On the contrary, PW-2 Pramila and PW-3 Prakash are categorical in saying as to what deceased had told to them in the Hospital. What P.Ws. have stated is that on their reaching to the Hospital, their daughter started weeping, she further asked whether we have brought money and she further disclosed that she was ablaze by all and her daughter expired in that night. Firstly, this statement speaks about the setting deceased on fire by the appellants, which is in total contradiction with the prosecution case. Firstly, this statement speaks about the setting deceased on fire by the appellants, which is in total contradiction with the prosecution case. Secondly, in such circumstances, the father would not have waited deceased to expire and then lodge report. Apart from this, even after her death, he did not lodge report immediately, though A.D. inquiry was being conducted by the La. All this speaks against the pnfsecution case. 20. Learned APP has tried to derive the support to the reasonings recorded by the learned trial Judge by placing his reliance on the observations ,of the Apex Court in AIR 2004 SC 1933 : [2004 ALL MR (Cn) 1469 (S.c.)], State of Andhra Pradesh Vs. Raj Gopal Asawa, wherein it has been ,observed in para 7 & 8 thus, "7. Explanation to 'section 304-8 refers to dowry "as having the same meaning as in Section 2of the Act", :the question is: what is the periphery ,of the dowry as defined therein? The argument is, there has to 'be an agreement at the time of the marriage in view of the words "agreed to be given" occurring therein, and in the absence of any such .evidence it wouMn:ot cons6tute t0hea dowry. It is noticeable, as this definition by amendment includes I10t onl y the period before and at the marriage but a:J so the peri,od subsequent to the marriage. This position was highHghted in Pawa1ll Kumar and others Vs. State of Haryana (1998)3 see 3(9). 8. The offenc,eaUeged a g.aimstt the respondents is uAder Section 304-8, tP.C which ma'k,es "'.demand of o.owry" itself pumshab'le. Demand! neitherc.oncedves nor wou1d ,conce1veof .aliY agreement. If for 'eonvict1ng any offender, agre.ement f,or ';- dowry is :to be proved, hardly any offenders would come under the clutches of 1aw. When section 304-Bl7efers to "dernamdl of ,dowry", it refers to the demaoo of property or valuable security .as referred to in the definition of "dowry" under the Act. The argument that there is no demand of dowry. in the present case, has no force. In c.ases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be dra w n on the basi s of s uc h evidence. That could be either direct or indirect. The argument that there is no demand of dowry. in the present case, has no force. In c.ases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be dra w n on the basi s of s uc h evidence. That could be either direct or indirect. It is significant that section 4 of the act, was .also amended by means of Act 63 of 1984 under which it is an offence to demanddowryctirectly or indirectly from the parents ,or other rel.ati vesorguardian oia bride. The w,ord "agreement" referred to in section 2 has to be inferred .on the facts and circumstances of ea,ch case. The interpretati'on that the respondents seek, that conviction •.can only be if there is agreement for dowry, ismis:oonceived. This wou.1d be contrary to .the mandate ando'bjectof the . Act. "Dowry" definiti,ofl is to be interpreted with the ,other pmvisio:l\Is ,of the Act includingsec.tion 3 whi.ch rders to giving or taking dowry and section 4- which :dea!!iia penalty for demandin,g dowry, u.nder the Act and the LP.C. This makes it clear:that even ,demand of dowry on .oth.er ingredients being satisfied is punishalble. It is not always necessary that ,there be .any agreement for dowry." lit illl ne~s.ary :lia :further note that iirn PNa 9 ,of the said judgmeJ1lt, it has .beenOOserMed tout> .: "9.Sectioo [13-8,(j)f <the Evidence Act:it> .ali~o relevam for the case at hancL Roth :seatiorn 3i04-B~ tP.c. .a.m.d S.ectiodil 11 3-D ,of the Evidence Aatw.ere j.Jllset1ec1as .noted e2lt'lier by,the Dowry Pmh:i,bition ,(Amendrnent~ Act, 43 of 1986 w~th ,CiIvjew ito ,combait :th,e increaSiing menace ,of dowJ)' deatrn;, :$.eolion [13-B reads all foIlowi::- i B•B PresllImpt:i:Ql\las .to .oowl)'Oe&1i1n _ Whe.n d~e 'jJ1u.OGliom ai whet;fuer 4l !porGOO ~s ,coiJa1fnitted tihe .dowry death ,of .awomal1l and 2008 "LL 'MR Kri.)• li~", - -~----~----- -------- ., 2428 Nitin Bhagwanrao Paijanwar Vs. State of Maharashtra 2008 it is shown that soon before her death such woman had 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. State of Maharashtra 2008 it is shown that soon before her death such woman had 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 113B in the Evidence Act has been inserted. As per the definition of 'dowry death' in Section 103-B, I.P.C. 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 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, LP.C .. (2) The woman was subjected to cruelty or harassment by her husband or his relatives. 2008 ALL MR (Cri) - Sept. (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." Vis-a- Vis this, it is necessary to refer to the observations of the Apex Court in the authorities referred by the learned counsel for the appellants. 21. In 2002(2) sce 619, Gananath Pattnaik Vs. State of Orissa, it has been observed thus; "10. (4) Such cruelty or harassment was soon before her death." Vis-a- Vis this, it is necessary to refer to the observations of the Apex Court in the authorities referred by the learned counsel for the appellants. 21. In 2002(2) sce 619, Gananath Pattnaik Vs. State of Orissa, it has been observed thus; "10. Another circumstances of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial court has referred to the statement of PW-5, who is the sister of the deceased. In her deposition recorded in the court on 4-5-1990 PW-5 had stated: "Whenever I had gone to my sister, all the times she was complaining that she is not well treated by her husband and in laws for non fulfillment of balance dowry amount of a scooter and a two in one." and added: "On 3-6-1987 for the last time I had been to the house of the deceased i.e. to her separate residence. Sworna, Snigdha, Sima Apa, Baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused nowadays. She further complained before us that the accused is taking away the child from her, and that her mother in law has come and some conspiracy is going against her (the deceased). She further told that mate au banchei debenahin". Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under Section 304- B and such statement was admissible under clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the ALL MR (Cri) Nitin Bhagwanrao Paijanwar Vs. State of Maharashtra 2429 transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under section 498-A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. Section 32 is an exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If such a statement which otherwise is covered by the hearsay rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused." Here, there is no explanation offered by the prosecution as to why dying declaration of the deceased could not be recorded though she had made incriminating statement before her parents and brother. AIR 2006 SCC 680 : [2006 ALL MR (Cri) 934 (S.C.)], Harjit Singh Vs. State of Punjab, wherein in paras 14, 15, 16 & 17 it has been observed thus: "14. Concededly, there is no evidence on records to show that the deceased was subjected to any cruelty or harassment between April, 1988 and the date of his death. In the light of the above mentioned evidence the question which arises for consideration is as to whether a case under section 304-B of the Indian Penal Code can be said to have been made out. 15.Section 304-B of the Indian Penal 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: Explanation - for the purpose of this subsection, "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." 16. A legal fiction has been created in the said provision to the effect that in the event it is established that soon before the death the deceased was subjected to cruelty or harassment by her husband or any of his relati ve; for or in connection with any demand of dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. The Parliament has also inserted Section 113-B of the Indian Evidence Act by Act No.43 of 1986 with effect from 1-5-1986 which reads as under :- "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 had 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)," "17. From a conjoint reading of Section 304-B of the Indian Penal Code and Section 113-B of the Indian Evidence Act, it will be apparent that a presumption arising there under will operate if the prosecution is able to establish the circumstances as set out in Section 304-B of the Indian Penal Code" 22. Here is the case where the appellants have been acquitted of the offence under Section 306 of IPC. There is no specific 2008 ALL MR (Cri) - S<pl " 2430 Nitin Bhagwanrao Paijanwar V s. State of Maharashtra 2008 evidence muchless reliable to show that amount of Rs.50,000/- was settled as dowry at the time of marriage. There is also no reliable evidence free from doubts regarding ill-treatment or harassment for demand of dowry soon before death. On the contrary, counter inference is possible. Here is the case where it is impossible to rule out the possibility of demand of any money only in connection of business by the appellant 1'10.1. as such observations in paras 9, 10 & 11 of 2007(J) see (Cri.) 468 : [2007 ALL MR (Cri) 859 (s.c.)]., Appasaheb and another Vs. State of Maharashtra, wherein it has been observed, would be attracted. "9. as such observations in paras 9, 10 & 11 of 2007(J) see (Cri.) 468 : [2007 ALL MR (Cri) 859 (s.c.)]., Appasaheb and another Vs. State of Maharashtra, wherein it has been observed, would be attracted. "9. Two essential ingredients of Section 304B, IPC apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman 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 the Dowry Prohibition Act, 1961. 10. Section 2 of the Dowry Prohibition Act re-ads 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 paIty to the marriage: or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or t~y other person, at or before or any time after the marriage in connection with the marriage of the said palties, but does not include dower or mahr in the case of persons to whom the Muslim personal law (Shari at) applies. 11. 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 2008 ALL MR (Cr;) - Sepl. or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the patties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India Vs. Garware Nylons Ltd. and Chemical and Fibers of India Ltd. Vs. Union of India.) A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B, IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained." 23. As already observed above. here is the case where the deceased is said to have made disclosure to the prosecution witnesses regarding demand of money, but the relations of the patties seem to be cordial till just some time before the actual incident. Although it is claimed by the prosecution witnesses, particularly the mother and the brother of the deceased that deceased had made statement regarding the fact as to how the incident had __________ ~ ~~~_~------------- , __ ---IIIIIII~!!!!I!I!!!!!!!!!!l!I!!!I!!I!!!I!!!!!I!! .;f'f ... ~ ., "." ALL MR (Cri) Pavankumar Bhurmatji Ostwal V s. State of Maharasntra 2431 occurred, no steps were taken for recording dying declaration of the deceased. Top to all this, there is clear inexplicable late report by the father of the deceased. I have already pointed out above that the reasons recorded by the learned trial Judge does not seem to be acceptable considering the totality of the circumstances of the case. Top to all this, there is clear inexplicable late report by the father of the deceased. I have already pointed out above that the reasons recorded by the learned trial Judge does not seem to be acceptable considering the totality of the circumstances of the case. It is impossible for me to believe that the father of the deceased would have waited to complete the funeral and then he would have made grievance to the police regarding the harassment and ill-treatment caused to the deceased for demand of dowry. In my opinion, the oral dying declaration which is relied by the learned trial Judge for basing the conviction does not seem to be so cogent and convincing so as to invite it to form an edifice for conviction of the appellants. 24. I have already pointed out above, there is remote possibility of atleast 3 appellants to be involved in the offences alleged as they are residing at too far places. I have also pointed out above that there is no series of any incidents of alleged ill-treatment caused by the appellants, . even for that matter by appellant No.1. On the comtrary, the evidence and the admissions given by the material prosec\!ltion witnesses are suggestive of improvements made by the prosecution witnesses. No doubt, in the present case the death of the deceased was because of severe burn injuries and within 4-5 years of marriage. Fact remains that none of the neighbours, even fonhat matter the person who had extinguished the fire of the deceased were examined. The possibility of false implication of atleast some of the appellants ~clearly there. The alleged oral dying declaration relied by the learned trial Judge does not seem to be acceptable for basing conviction. The lodging of report quite belatedly is not explained by the prosecution. In such circumstances, the case against the appellants would be raising serious doubt and suspicion, 1frut the conviction cannot be based on suspicion alone howsoever thick. There has to be legaUy reliable, acceptable evideoce on record fOf" basing the conviction of the appellants,. 25. In these circumstances, D find that the reasons recorded by the learned trial Judge do not withstand the rigours of the settled principles of criminal jurisprudence and therefore, the conviction and sentence recorded by the trial Judge are unsustainable at law. As such the appeal has to be al'lowed. 26. 25. In these circumstances, D find that the reasons recorded by the learned trial Judge do not withstand the rigours of the settled principles of criminal jurisprudence and therefore, the conviction and sentence recorded by the trial Judge are unsustainable at law. As such the appeal has to be al'lowed. 26. The appellants are, therefore, held not guilty of the offences under Sections 498A and 304- B of the IPC atnd they are acquitted. Appellant No.1 be set at liberty fOlthwith if he is not required for any other offence. Bai I bonds of rest of the appellants stand discharged. The fine, if any, deposited by them be refunded. Ordered accordingly. Appeal allowed. 2068 ALL MR (Cri) 2431 IN THE HIGH COURT OF mmCA TURE AT BOMBAY (AURANGABAD BENCH) V. R. KINGAONKAR, J. Pavankumar Bhurmalji Ostwal & Ors. Vs. State of Maharashtra & Am. Criminal Application No.2191 of 1996 14th July, 2008. Mr. R. N. DHORDE. Advocate with Mr. N. B. SURYA WANSHI, Advocate, for the Applicants. Mr. B. J. SONAWANE, A.P.P. for Respondent No.l/State. Mr. J. R. SHAH, Advocate for Respondent No.2. Criminal P.c. (1973), Ss.482,.156(3) - Powers of High Court unde1" S.482 - Investigationjust started by calling upon police to. file report No. process issued against applicant Quashing of investigation would not be perm~sibk at such premature stage. AIR 1992 SC 1930 , 2003 ALL MR (Cri) 1925 - Rei. 011. (Para 3) 2008 ALL MR (Cn)• S.pt •• ~_ . . ' i ....