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2011 DIGILAW 32 (CHH)

Bhagwat Sahu v. State of M. P.

2011-01-28

PRITINKER DIWAKER

body2011
JUDGMENT Pritinker Diwaker, J. 1. The present appeal arises out of the judgment and order dated 25.09.1998 passed by Second Additional Sessions Judge, Bilaspur in Sessions Trial No. 184/1997 convicting the accused/Appellant for the offence under Sections 304B read with Section 34 of IPC and sentencing him to undergo rigorous imprisonment for seven years. 2. Brief facts of the case are that the Appellant is the husband of the deceased Gayatri Bai and their marriage was solemnized sometime in the year 1994 and Gouna ceremony took place in the year 1995. On 11.4.1996 an about 9 a.m. the deceased Gayatri Bai suffered 100% bum injuries and on that day itself died while she was being taken to the hospital. On 11.4.1996 Merg intimation Ex. P-8 was given by Baisakhu, father of the accused/Appellant. On 23.04.1996 a written report (Ex. P-5) was made by Dhani Ram Sahu (PW-3)-the father of the deceased and Ganga Prasad (PW-6) to the Collector making allegation of demand of dowry and cruelty against the accuse/Appellant and his mother & father. After enquiry, FIR Ex.P-12 was registered on 12.06.1996 against the accused/Appellant and his mother (Khelan Bai) and father (Baishakhu) under Section 306/34 of IPC and thereafter on 29.06.1996 the case diary statement of the witnesses was recorded. However, the challan was filed on 27.07.1996 only against the accused/Appellant and his mother Khelan Bai for the offence under Section 306/34. 3. So as to hold the accused persons guilty, prosecution has examined 08 witnesses in support of its case. Statements of the accused per ons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. Apart from this, one witness namely Nirmala (DW-1) has also been examined by the defence in support of its case. However the Court below framed charge against the accused persons under Section 304B/34 of IPC. 4. After hearing the parties the trial Court has acquitted the co-accused Khelan Bai, mother of the Appellant of the offence under Section 304B read with Section 34 of IPC but convicted and (sic) the said offence. 5. However the Court below framed charge against the accused persons under Section 304B/34 of IPC. 4. After hearing the parties the trial Court has acquitted the co-accused Khelan Bai, mother of the Appellant of the offence under Section 304B read with Section 34 of IPC but convicted and (sic) the said offence. 5. Contention of the learned Counsel for the Appellant is that there is an inordinate delay of 12 days in lodging the FIR as the incident had taken place on 11.04.1996 whereas the written report has been lodged on 23.04.1996 and there is no reasonable explanation for this inordinate delay. He further submits that the Appellant has been convicted on the basis of the statement of Dhaniram (PW-3), Shupawara Bai (PW-4), Jhhunil Bai (PW-5) and Ganga Prasad Sahu (PW-6) whereas if the evidence of these witnesses is taken into consideration, the offence under Section 304B of IPC is not made out. He submits that most of the witnesses have improved their version before the Court and have stated contrary to their case diary statement and when they were confronted, they have admitted the same and even the Investigating Officer has also admitted this fact. He submits that there is no evidence on record to show that soon before death; the deceased was subjected to cruelty or harassment by the Appellant. He further submits that the Appellant and the deceased both belong to very poor family and the Appellant had demanded Rs. 5,000 for his business and the same would not amount to dowry as defined in Dowry Prohibition Act. 6. On the contrary supporting the impugned judgment it has been argued by the learned Counsel for the State that the deceased was subjected to cruelty to the extent where she was left to no other option but to commit suicide by setting herself ablaze. He submits that had the deceased not been subjected to torture or cruelty there was no reason to end her life. He further submits that as per the statement of Dhani Ram (PW-3) and Jhhunil Bai (PW-5) it is apparent that the Appellant has committed the offence under Section 304B of IPC. 7. Heard counsel for the parties and perused the material available on record including the judgment impugned. 8. He further submits that as per the statement of Dhani Ram (PW-3) and Jhhunil Bai (PW-5) it is apparent that the Appellant has committed the offence under Section 304B of IPC. 7. Heard counsel for the parties and perused the material available on record including the judgment impugned. 8. Ramkusal (PW-1) who is an inquest witness and in village relation] the maternal uncle of the deceased has not made any allegation against the accused/Appellant. Dr. A. K. Shrivastava (PW-2) who along with Dr. S. K. Shrivastava had performed the post mortem of the deceased and given his report Ex.P-4. According to him the cause of death of the deceased is asphyxia due to smoke. Dhani Ram (PW-3) - father of the deceased has stated that the marriage of the deceased was solemnized with the Appellant in the year 1994 and about one year after their marriage, Gouna ceremony took place. After Gouna the deceased was residing in her in-laws house along with her husband (accused/ Appellant), mother-in-law Khelan Bai, father-in-law Baisakhu Ram and two younger sisters and one brother of the Appellant. Before death the deceased used to visit his house and vice-versa. After about six months from Gouna ceremony, when he was working as mason in the village Gondaiya, the accused/Appellant came to him by saying that he would work with him and his daughter also came there following the accused/Appellant and said that she would live with the accused/Appellant wherever he lived and then this witness convinced them not to work with him and send them back to their village by saying that he would not allow his daughter to work and would give their expenses. At the time of Ratanpur fair the deceased had informed him that she was beaten by the accused Appellant on account of some family dispute thereafter he did a ready-made clothes business along with the Appellant. At the time of Kota fair when he gave ready-made clothes to the Appellant, he had refused to keep the same. He has stated that after about 10 days the deceased came to him and said that the Appellant was demanding Rs. 5,000 for business for which he gave Rs. 1400 and thereafter about a week she died on account of burn injuries. He has further stated that at the time of inquest he was present and signed on Ex.P-6. He has stated that after about 10 days the deceased came to him and said that the Appellant was demanding Rs. 5,000 for business for which he gave Rs. 1400 and thereafter about a week she died on account of burn injuries. He has further stated that at the time of inquest he was present and signed on Ex.P-6. At this stage, this witness was declared hostile. In cross-examination this witness admits that only once the accused/Appellant had demanded Rs. 5,000 for his business and he had given Rs. 1400 to him. He admits that whenever the deceased fell sick it was the accused/Appellant who got her treated. This witness admits that his case diary statement was recorded by the police in which he has stated that he never heard about any harassment or cruelty meted out to the deceased by the Appellant nor somebody else informed the same to him. Shukhwara Bai (PW-4) the neighbour of Dhaniram in her Court statement has stated that her house is adjacent to the house of Dhaniram (PW-3) and about a week before her death when the deceased came to her house, she had informed her that the accused/Appellant used to beat her by demanding money. In her case diary statement this witness has stated that the deceased had informed her that her husband was demanding a bicycle and money and used to ask her not to go out because he was having some doubt towards her. Jhhunil (PW-5) - the mother of the deceased has stated that on the eve of Nawratri the deceased had informed her that the accused persons were demanding T.V and watch and the accused/Appellant was demanding Rs. 5,000 for business. She has further stated that the acquitted accused Khelan Bai used to harass the deceased for bringing dowry. There appears to be material contradictions in the statement of this witness from that of 161 Code of Criminal Procedure statement because in her case diary statement he has not made any allegation of demand of dowry. 5,000 for business. She has further stated that the acquitted accused Khelan Bai used to harass the deceased for bringing dowry. There appears to be material contradictions in the statement of this witness from that of 161 Code of Criminal Procedure statement because in her case diary statement he has not made any allegation of demand of dowry. Ganga Prasad (PW-6) - the uncle of the deceased has stated that at the time of festival the deceased and the accused/Appellant came to the house of his brother and when they were going back he asked her as to why she did not come to his house to which the deceased had informed him that her husband did not allow her to go anywhere and thereafter she returned. He has stated that later on the deceased had informed her mother and father about the ill treatment given to her by the accused/Appellant. He came to know that the deceased never work and used to sit at her house and therefore the Appellant used to beat her and the Appellant had demanded money from the father of the deceased to start his business. In his cross-examination he admits that he j had met the deceased in the month of January and thereafter he did not meet her and she died in the month of April. Though this witness is the lodger of the written report Ex.P-5 but has not stated anything about the same. J. L. Lakda (PW-7) is the Assistant Sub-Inspector who has done the part of investigation. B. P. Pandey (PW-8) - the Investigating Officer has supported the prosecution case but he has also admitted the fact that father of the deceased had not informed him about demand of any dowry and cruelty meted out by the Appellant to the deceased. 9. Minute examination of the evidence reveals that the financial condition of the accused/Appellant, the deceased and her parents was not very good and they were working as labourer/mason. It appears that there used to be some dispute be ween husband and wife because of their poor financial condition but it cannot be said that the death of the deceased was a dowry death. It appears that there used to be some dispute be ween husband and wife because of their poor financial condition but it cannot be said that the death of the deceased was a dowry death. It also reveals that Dhaniram (PW-3) and Jhhunil (PW-5)- Father and mother of the deceased have not made any allegation of demand of dowry against the Appellant in their 161 Code of Criminal Procedure statement which goes to show that they have improved their version in their Court Statement. Ganga Prasad (PW-6) - the uncle of the deceased admits in his cross-examination that he had met the deceased in the month of January and thereafter he never met with her and the deceased died in the month of April. According to this witness it is also not proved that the deceased was harassed for demand of dowry soon before her death. There is no cogent admissible evidence on record to show that soon before her death the deceased was subjected to cruelty or harassment by the accused/Appellant. The evidence is also very shaky in respect of demand of dowry because as per the statement of the witnesses Rs. 5,000 were demanded by the Appellant for his business and other allegations appear to be general in nature. In the case of AppaSaheb v. State of Mahrashtra (2007) 9 SCC 721 in which it has been held by the Supreme Court as under: 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 304B 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 reads as under: 2. The explanation appended to Sub-section (1) of Section 304B 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 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 parents 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 dower or mahr in the case of persons to whom the Muslim personal law (Shariat) 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 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 parties 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. 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 v. Garware Nylons Ltd. And Chemical and Fibres of India Ltd. v. 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. (See Union of India v. Garware Nylons Ltd. And Chemical and Fibres of India Ltd. v. 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 304B IPC viz. demand for dowry is not established, the conviction of the Appellants cannot be sustained. If the above legal position is applied in the present case, the entire case of the prosecution becomes doubtful because as per the evidence, the accused/ Appellant had once demanded Rs. 5,000 for his business and the said demand cannot be termed as demand of dowry. Further if it is presumed that the deceased committed suicide even then the Appellant cannot be held guilty under Section 304B of IPC because for holding him guilty under this section one of the basic ingredients that the deceased soon before her death was subjected to cruelty or harassment by the Appellant on account of demand of dowry is completely missing in this case. Yet in another case, in the matter of Satvir Singh and Ors. v. State of Punjab and Anr. (2001) 8 SCC 633 it has been held by the Supreme Court as under: 21. 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 are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". 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 are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage. 22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked. But it should have happened "soon before her death". The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasize the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry-related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the Court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept "soon before her death". Considering the overall evidence adduced by the prosecution I find that prosecution has not been able to prove the charges against the Appellant beyond all reasonable doubts. In this view of the matter, the conviction of the Appellant can't be upheld. 10. In the result, this appeal is allowed. The impugned judgment and order of the Court below convicting and sentencing the Appellant under Section 304B read with Section 34 of IPC is hereby set aside and the Appellant is acquitted. Since the Appellant is on bail, his bail bonds stand discharged.