Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 275 (BOM)

Digambar Maniram Thavre v. State of Maharashtra

2018-01-30

ROHIT B.DEO

body2018
JUDGMENT : 1. The appellant in Criminal Appeal 312 of 2002 is challenging the judgment and order dated 4.6.2002 rendered by 1st Adhoc Additional Sessions Judge, Bhandara in Sessions Trial 149 of 1998 by and under which, the appellant – accused is convicted for offence punishable under section 498A of the Indian Penal Code (“IPC) and under section 304B of IPC and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs. 300/-. No separate sentence is imposed for offence punishable under section 498A of IPC. Criminal Appeal 420 of 2002 is preferred by the respondent / State seeking enhancement of the sentence. Both Criminal Appeal 312 of 2002 and Criminal Appeal 420 of 2002 are heard together and decided by this common judgment. 2. Heard Shri Shashikant Borkar, the learned counsel for the appellant – accused and Smt. Ritu Kalia, the learned Public Prosecutor for respondent. 3. PW 3 Dinesh Vishwakarma,who is the father of deceased Sangita lodged oral report dated 27.8.1998 at Police Station, Sakoli (Exh. 32) on the basis of which the police registered offence punishable under section 304B of IPC against the accused. The gist of the oral report is that deceased Sangita, the daughter of the informant, and the accused entered into matrimonial alliance on 5.11.1996. The accused was unemployed at the time of the marriage while Sangita was serving in a school and was a permanent employee. She was posted at Khajri (Dowargaon). Sangita was transferred to Kinhi (Mokhe) in July 1997 where she resided with the accused. In 1997, the accused secured a job as a temporary employee at Jamdi fata. Since the day of the marriage, the accused used to harass Sangita and her family by frequently demanding money. He demanded money from the informant for the B Ed training and the informant obliged. The accused again demanded money for securing employment, which demand was fulfilled by the informant by borrowing money. The accused then pestered Sangita to purchase motorcycle and started ill-treating her. Sangita withdrew money from her bank account and purchased motorcycle 2 to 3 months prior to her death. On the day of Rakhi Pornima, the accused demanded Rs. 50,000/- from the informant to purchase a plot. Informant did not have the money and told the accused that the demand will be fulfilled soon by arranging another loan. Sangita withdrew money from her bank account and purchased motorcycle 2 to 3 months prior to her death. On the day of Rakhi Pornima, the accused demanded Rs. 50,000/- from the informant to purchase a plot. Informant did not have the money and told the accused that the demand will be fulfilled soon by arranging another loan. The accused also pressurized Sangita to change the nomination in the life insurance policies taken out before marriage and to substitute his name as nominee. The accused also harassing Sangita since he wanted Sangita to sign consent letter in his name to substitute his name as nominee to Sangita’s provident fund account. The accused accompanied by Life Insurance Corporation (LIC) agent Bhandarkar was consistently pressurizing the informant and Sangita to take out 2 to 3 LIC policies after marriage. The oral report concludes by stating that the informant is of the opinion that Sangita committed suicide since she was fed up with the harassment at the hands of her husband. 4. Investigation ensued and upon completion thereof charge sheet was submitted in the Court of Judicial Magistrate First Class, Sakoli, who committed the case to the Sessions Court. The learned Sessions Judge framed charge (Exh 11). The accused abjured guilt. The defence is of total denial. The defence disputed that the death is suicidal and suggested that the death is accidental. 5. Section 304B of the IPC was brought on the statute book by the Dowry Prohibition Amendment Act, 1986, with the avowed object of curing and curbing the menace of dowry death. Consequential amendments were effected in the Indian Evidence Act and the Criminal Procedure Code. Offence punishable under Section 304B of the IPC was made non-bailable and triable by the Sessions Court. Section 113B was introduced in the Indian Evidence Act which reads thus: “113B. 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 304B of the Indian Penal Code (45 of 1860)” 6. Explanation – For the purposes of this section, “dowry death”, shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)” 6. Concededly, the statutory presumption under Section 113B of the Indian Evidence Act is a presumption of law which the Court is obligated to invoke, and the legislative intent is manifested from the use of expression 'shall presume' in contradiction with the expression “may presume” used in Section 113A of the Indian Evidence Act. However, sine qua non for taking recourse to the statutory presumption under Section 113B of the Indian Evidence Act is that the prosecution must prove beyond reasonable doubt the ingredients of Section 304B of the IPC. Section 304B of the IPC reads thus: “304B. 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 purposes of this subsection, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 2961). (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.” In view of the Explanation to Section 304B(1) of the IPC, it would be relevant to note the provisions of Section 2 of the Dowry Prohibition Act, 1961, which reads thus : “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 (of 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 (Sharirat) applies. Explanation II – The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860)” The ingredients of Section 304B are as follows: (1) The death of the woman was caused due to burns, bodily injury or due to unnatural circumstances. (2) The death should be within seven years of marriage. (3) It would be shown that soon before death the woman was subjected to cruelty or harassment by her husband or any relative of the accused. (4) The cruelty or harassment was for or in connection with any demand of dowry. 7. Concededly, the death of Sangita is within seven years of the marriage. The death is caused by burns. The pivotal issue is whether the prosecution has established beyond reasonable doubt that deceased Sangita was subjected to cruelty or harassment by the accused for, or in connection with, any demand for dowry. The clarificatory explanation to section 113A of the Evidence Act is that for the purposes of section 113A cruelty shall be as defined in section 498A of IPC. Such a clarificatory explanation is not legislatively incorporated in section 113B of the Indian Evidence Act. However, it is judicially recognized that the cruelty contemplated by section 304B of IPC and section 113B of the Evidence Act is the cruelty statutorily defined under explanation (a) and (b) to section 498A of IPC. Reference may be made to the judgment of the Apex Court in Smt. Shanti and another v. State of Haryana, AIR 1991 Supreme Court. The relevant observations of which judgment read thus: “6. Now we shall consider the question as to whether the acquittal of the appellants of the offence punishable under S. 498A makes any difference. Reference may be made to the judgment of the Apex Court in Smt. Shanti and another v. State of Haryana, AIR 1991 Supreme Court. The relevant observations of which judgment read thus: “6. Now we shall consider the question as to whether the acquittal of the appellants of the offence punishable under S. 498A makes any difference. The submission of the learned counsel is that the acquittal under S. 498A, IPC would lead to the effect that the cruelty on the part of the accused is not established. We see no force in this submission. The High Court only held that S. 304D and S.498A IPC, are mutually exclusive and that when once the cruelty envisaged in S. 498A IPC culminates in dowry death of the victim, S. 304B alone is attracted and in that view of the matter the appellants were acquitted under S.498A IPC. It can therefore be seen that the High Court did not hold that the prosecution has not established cruelty on the part of the appellants but on the other hand the High Court considered the entire evidence and held that the element of cruelty which is also an essential of S.304B IPC has been established. Therefore the mere acquittal of the appellants under S.498A IPC in these circumstances makes no difference for the purpose of this case. However, we want to point out that this view of the High Court is not correct and sections 304b and 498A cannot be held to be mutually exclusive. These provisions deal with two distinct offences. It is true that “cruelty” is a common essential to both the sections and that has to be proved. The Explanation to Section 498A gives the meaning of “cruelty”. In S.304B there is no such explanation about the meaning of “cruelty” but having regard to the common background to these offences we have to take that the meaning of “cruelty or harassment” will be the same as we find in the explanation to S.498A under which “cruelty” by itself amounts to an offence and is punishable. Under Section 304B as already noted, it is the “dowry death” that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in S.498A and the husband or his relative would be liable for subjecting the woman to “cruelty” any time after the marriage. Under Section 304B as already noted, it is the “dowry death” that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in S.498A and the husband or his relative would be liable for subjecting the woman to “cruelty” any time after the marriage. Further it must also be borne in mind that a person charged and acquitted under S. 304B can be convicted u/S.498A without charge being there, if such a case is made out. But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under S. 498A in view of the substantive sentence being awarded for the major offence under S.304B. (Emphasis supplied) 8. PW 8 Shivram Meshram is the father of the deceased who lodged oral report Exhibit 32. He has deposed that in first visit to parental home after marriage, Sangita narrated that the accused is demanding motorcycle and is regularly pressurizing Sangita to substitute the nominee in the first life insurance policy and to take out a new policy. Since PW 8 did not have the funds to purchase motorcycle, he gave his Luna and one cycle to the accused. PW 8 then states that both Sangita and the accused came to him and asked for money to enable the accused to obtain the B.Ed. degree. PW 8 borrowed Rs.7,500/- and paid the said amount to the accused. PW 8 has deposed that the subsequent demand for money was made by the accused for securing employment in Education Society at village Jambhali Sadak. The accused demanded Rs.25,000/-, the said amount was borrowed by PW 8 and paid to the accused, is the deposition. The next demand to which PW 8 testifies is demand of Rs.50,000/- to purchase plot at Sakoli. PW 8 states that in August 1998 Sangita and accused visited him and the amount of Rs.50,000/- to purchase plot was demanded. 9. The mother of the deceased, Smt. Annapurna (PW 9) states that deceased Sangita was harassed and ill-treated by the accused, who was demanding amount. PW 8 states that in August 1998 Sangita and accused visited him and the amount of Rs.50,000/- to purchase plot was demanded. 9. The mother of the deceased, Smt. Annapurna (PW 9) states that deceased Sangita was harassed and ill-treated by the accused, who was demanding amount. She then states, that Sangita conveyed that the accused is pressurizing her to substitute the nominee in the GPF and insurance policies and to take out another policy. She states that the accused demanded Rs.50,000/- to purchase motorcycle, since the demand could not be fulfilled, one Luna and ladies cycle were given to the accused. She then states that both accused and deceased Sangita demanded money to enable the accused to complete the B.Ed. course, PW 9 gave Rs.5,000/- and her husband PW 8 gave some amount by taking hand loan. PW 9 speaks of the accused having demanded Rs.25,000/- to secure service at Jambhaji Sadak, which was paid. PW 9 finally speaks of a demand of Rs.50,000/- to purchase plot at Sakoli. The demand was made when deceased Sangita and the accused came to visit her on the occasion of the Rakshabandhan festival. 10. Bharat Bahekar (PW 1) is examined to bring on record that P.W.8 borrowed Rs.7,500/- in June 1996. PW 1 states that he availed loan from the society and paid the amount of Rs.7,500/- to PW 8 in presence of the accused. In the cross-examination, it is brought on record that PW 8 is also a member of the cooperative society from which the loan of Rs.7,500/- was availed by PW 1. It is extracted that the financial condition of PW 8 is better than PW 1 and that PW 8 Shivram Meshram could have also taken the loan from the society. 11. P.W.2 Usha Paraskar has deposed that when she met deceased Sangita in Gondia on the day of Rakshabandhan, it was narrated to her by Sangita that PW 8 purchased motorcycle for the accused and since we (Sangita and the accused) intend to purchase plot at Sakoli, we need Rs.50,000/- and have come to her parents for the said amount. 12. PW 3 Dinesh Vishwarkarma, who is panch to the inquest panchanama (Exhibit 20) has deposed that when he met Sangita in Gondia, she narrated to him that the accused harasses her father for money. 12. PW 3 Dinesh Vishwarkarma, who is panch to the inquest panchanama (Exhibit 20) has deposed that when he met Sangita in Gondia, she narrated to him that the accused harasses her father for money. PW 3 then states that PW 8 Shivram Meshram requested a hand loan of Rs.15,000/- to pay the amount to accused. PW 3 states that the said amount of Rs.15,000/- was paid by PW 8 Shivram to the accused in his presence. 13. The prosecution is relying on the evidence of PW 8 and PW 9, the father and mother of the deceased Sangita respectively to establish that the accused harassed and ill-treated the deceased Sangita to coerce her and her father to fulfill unlawful demand and that the unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, which willful conduct constitutes cruelty within the meaning of Explanation (b) of Section 498A of the IPC. The submission of the learned Counsel for the accused, is even if the evidence of PW 8 and PW 9 is taken at face value, demand per se would not constitute cruelty in the absence of clinching evidence that the demand was accompanied by ill-treatment. The learned Counsel for the accused would contend that neither PW 8 nor PW 9 speak of any specific instance of ill-treatment or any overt act by the accused constituting ill-treatment. Use of stereotyped expression like “harassment” or “ill-treatment” in the absence of the particulars and details of the alleged harassment or ill-treatment, is not sufficient to establish that the deceased was subjected to cruelty within the meaning of Explanation (a) or (b) of Section 498A of the IPC. Arguendo and in the alternate, the submission is that the alleged cruelty or harassment was not for, or in connection with, any demand for dowry. These submissions are made by the learned Counsel for the accused without prejudice to the submission that the prosecution version that the afore referred demands were made, is of doubtful veracity. 14. The submission of the learned Counsel for the accused that demand per se, unaccompanied by ill-treatment or harassment, would not constitute cruelty within the meaning of Explanation (a) or Explanation (b) of Section 498A of the IPC, is well merited. 14. The submission of the learned Counsel for the accused that demand per se, unaccompanied by ill-treatment or harassment, would not constitute cruelty within the meaning of Explanation (a) or Explanation (b) of Section 498A of the IPC, is well merited. I have scrutinized the evidence of PW 8 and PW 9 closely, and having done so, I am inclined to agree with the submission of the learned Counsel for the accused that the evidence is vague, bereft of particulars and other than use of expressions like “harassment” and “ill-treatment”, no specific instance of harassment or ill-treatment is testified to by PW 8 and PW 9. Except for the demand, which appears to have been jointly made by the accused and deceased Sangita, for Rs.50,000/- for purchasing plot, neither PW8 nor PW 9 have disclosed when was the demand made by the accused. The version of PW 8 that Rs.25,000/- was demanded to enable the accused to secure employment is rendered doubtful since there is no evidence on record to suggest that the accused was unemployed. Au contraire, in the cross-examination of PW 8, several suggestions were given to the effect that the accused was serving as Physical Teacher in Katakwar High School, Sakoli and then as Lecturer of Marathi in Rajiv Gandhi College, Sadak Arjuni. In response, PW 8 has answered that he is not aware that the accused was employed as Physical Teacher or as Lecturer. PW 8 volunteers that he was told by the accused that he will be teaching a period of Marathi in a college at Sadak Arjuni. It is admitted by PW 8 that the motorcycle is purchased in the name of deceased Sangita by availing finance from Berar Finance Limited, Nagpur. PW 8 claims ignorance about installments or of the payment thereof by the accused after the death of Sangita. The version of PW 9 Smt. Annapurna that the accused demanded Rs.50,000/- to purchase motorcycle is not consistent with the version of PW 8 who has not spoken of any particular amount. This inconsistency apart, the admitted fact that the motorcycle was purchased in the name of Sangita by availing finance from Berar Finance Limited, Nagpur renders suspect the prosecution case that the accused harassed or ill-treated Sangita for or in connection with demand for amount to purchase motorcycle. 15. This inconsistency apart, the admitted fact that the motorcycle was purchased in the name of Sangita by availing finance from Berar Finance Limited, Nagpur renders suspect the prosecution case that the accused harassed or ill-treated Sangita for or in connection with demand for amount to purchase motorcycle. 15. The evidence on demand is fragile and at any rate the prosecution has not established willful ill-treatment or harassment, in the absence of which a demand would not per se constitute cruelty. One of the sine qua non ingredients to constitute offence punishable under Section 304B of the IPC is not established. The presumption under Section 113B of the Indian Evidence Act is not activated. The conviction of the accused for offence punishable under Section 304B of the IPC is not sustainable. 16. The evidence of Dr. Jayant Deshmukh (PW 11) is that the history of the burn injury was given by deceased Sangita who disclosed that she suffered accidental burn while filling kerosene oil in the stove. PW 11, who then was Medical Officer attached to Cottage Hospital, Sakoli, was declared hostile and cross-examined by the learned Additional Public Prosecutor. PW 11 denied the suggestion that Sangita was not in a position to talk. The prosecution for reasons inexplicably has not examined the investigating Officer. The learned Sessions Judge has made a scathing observation that both PW 11 and the Investigating Officer failed to discharge their duties. The learned Sessions Judge insinuates that the Medical Officer and the Investigating Officer were persuaded by extraneous considerations in recording the statement of the doctor under Section 161 of the Criminal Procedure Code. The learned Sessions Judge observes that recording of statement under Section 161 of the Criminal Procedure Code of the doctor is per se extra ordinary and the case was treated as a “special case”. The observations and insinuations could have been avoided. The learned Sessions Judge has further not given due weightage to the admitted position on record that Shri Kapgate who extinguished the flames and suffered burn injury to his palm in the process, was not examined as a witness although he was cited as a witness and was present in the Court. The submission of the learned Counsel for the accused, that the possibility of an accidental death is not excluded, is not without substance. 17. The submission of the learned Counsel for the accused, that the possibility of an accidental death is not excluded, is not without substance. 17. In view of the finding recorded that the prosecution has not proved offence punishable under Section 304B of the IPC beyond reasonable doubt since it is not proved that the deceased was subjected to cruelty within the meaning of Explanation (a) or Explanation (b) of Section 498A of the IPC, axiomatically the accused must be acquitted also of offence punishable under Section 498A of the IPC. 18. In the result, I pass the following order: (i) The judgment and order impugned is set aside and the accused is acquitted of offence punishable under Section 498A and 304B of the IPC. (ii) The bail bond of the accused shall stand discharged. Fine paid by the accused, if any, shall be refunded to him. (iii) Criminal Appeal 420/2002 preferred by the State for enhancement of sentenced is dismissed.