Court: Bombay High Court
Bench: JUSTICE Rohit B. Deo
Rajesh Vs. State Of Maharashtra On 15 March 2018
Law Point:
Sections 498A, 304-B — Evidence Act, 1872 — Section 113-B — Dowry Prohibition Act, 1961 — Section 2 — Cruelty — Dowry Death — Evidence of witnesses examined to prove cruelty is inconsistent — Marred by contradictions — PW 2/father of deceased does not even allege that accused harassed or ill-treated deceased — PW 2 vaguely states that deceased disclosed that her mother-in-law and sister-in-law harassed and ill-treated — Admits that he gifted cot, sofa set and tea table in marriage — Appellant did not take them — Guilt of accused not proved beyond reasonable doubt — Acquittal granted.
JUDGEMENT
1. The appellant is aggrieved by the judgment and order dated 22.7.2003 rendered by the 2nd Ad hoc Additional Sessions Judge, Nagpur in Session Trial 642/1998, by and under which the appellant accused is convicted for offence punishable under Section 498A of the Indian Penal Code (“Act” for short) and is sentenced to suffer rigorous imprisonment for two years and to payment of fine of Rs. 3,000 and is further convicted for offence punishable under Section 304B of the IPC and is sentenced to suffer rigorous imprisonment for seven years. The family members of the accused who also faced trial are acquitted.
2. Heard Mr. Rajendra Shahu, learned Counsel for the accused and Mr. N.H. Joshi, learned Additional Public Prosecutor for the respondent State.
3. P.W.2 Sadashiv lodged report dated 3.5.1998 at the Sakkardara Police Station, Nagpur (Exhibit 35) alleging that his daughter Kavita committed suicide by jumping into a well due to the mental and physical harassment to which she was subjected by her husband Rajesh Jaiswal and mother-in-law Rukhmabai. On the basis of the said report offence punishable under Sections 498A and 304B read with Section 34 of the IPC was registered against Rajesh Jaiswal and Rukhmabai Jaiswal. Investigation ensued, upon completion of which along with Rajesh Jaiswal and Rukhmabai Jaiswal, Bhaiyalal Jaiswal, Laxmi Jaiswal and Ku. Sharda Jaiswal were charge-sheeted before the learned Judicial Magistrate, First Class, Court 1, Nagpur, who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge (Exhibit 6) under Sections 498A and 304B read with Section 34 of the IPC. The accused abjured guilt and claimed to be tried in accordance with law. The defence of the accused is of total denial and false implication.
4. Concededly, deceased Kavita married accused Rajesh on 20.5.1996 and she died, in circumstances otherwise than normal in the night between 15.1.998 and 25.1.998. The case of the prosecution is that since soon before her death Kavita was subjected to cruelty for or in connection with dowry demand, the statutory presumption under Section 113B of the Indian Evidence Act is activated and the offence punishable under Sections 304B and 498A of the IPC is proved against the accused beyond reasonable doubt. Per contra, Mr. Rajendra Shahu, learned Counsel for the accused would submit that the very ingredient of Section 304B of the IPC that the deceased was subjected to cruelty, soon before her death, for or in connection with a dowry demand is not proved. Axiomatically, the accused is entitled to be acquitted of offence punishable under Sections 498A and 304B of the IPC, is the submission.
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. 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 sub-section, “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 is within two years of the marriage and has occurred otherwise than in normal circumstances. The pivotal issue is whether it is shown by the prosecution that soon before her death Kavita was subjected to cruelty or harassment by the accused for or in connection with any demand for dowry.
8. The Explanation to Section 113A of the Indian Evidence Act clarifies that for the purposes of Section 113A cruelty shall have the same meaning as in Section 498A of the IPC. Although such a clarificatory explanation is not incorporated either in Section 113B of the Indian Evidence Act or Section 304B of the IPC, it is judicially recognized that the cruelty contemplated by the aforesaid statutory provision is the cruelty statutorily defined in Explanations (a) and (b) of Section 498A of the IPC or cruelty akin thereto. Before the statutory presumption under Section 113B of the Indian Evidence Act is activated, the prosecution is obligated to discharge the burden of proving each ingredient of Section 304B of the IPC. Further the cruelty or harassment for, or in connection with, any demand for dowry to which the woman is subjected to, must be soon before her death.
The expression “soon before her death” is considered in various judicial pronouncements and the common threat which runs through the plethora of decisions is that there cannot be a cut and dried or strait jacket formula to determine what period will constitute ‘soon before her death’. The question is required to be answered in the facts and circumstances of the case and the expression is elastic and flexible enough to cover a wide ranging time line. It would be apposite to note the observations of the Hon’ble Apex Court in Raja Lal Singh v. State of Jharkhand reported in I (2007) DMC 811 (SC)=V (2007) SLT 86=II (2007) DLT (CRL.) 689 (SC)=II (2007) CCR 360 (SC)=2007 Cr.LJ 3262, which read thus:
“18. It may be mentioned that the words “soon before her death” do not necessarily mean immediately before her death. As explained in Satvir Singh (supra), this phrase is an elastic expression and can refer to a period either immediately before death of the deceased or within a few days or few weeks before death. In other words, there should be a perceptible nexus between the death of the deceased and the dowry related harassment or cruelty inflicted on her.”
9. P.W.2 is the father of the deceased who lodged the first information report. He deposed that there was a quarrel with the accused persons on the issue of dowry, when the marriage was solemnized. P.W.2 then states that in Shrawan the deceased and her mother-in-law paid a visit to the father of P.W.2 who was not keeping well. The deceased disclosed that her mother-in-law and sister-in-law harassed and ill-treated her for dowry. P.W.2 then refers to a letter addressed by accused Rajesh to him demanding sofa set and cash. Even if the evidence is accepted at face value, P.W.2 does not attribute any wilful conduct of harassing or ill-treating Kavita to accused Rajesh. The relevance and significance of the letter which is referred to by P.W.2, shall be discussed at a later stage.
10. P.W.3 is a relative of the deceased who states that the accused demanded furniture in marriage, the demand was not satisfied and a quarrel ensued. He then states that Kavita met him in the year 1998 and disclosed that the accused are demanding Rs. 3,000 and that she was beaten by the accused. In the cross-examination, the evidence that Kavita disclosed the demand for Rs. 3,000 is brought on record as an omission. The evidence that the accused demanded furniture, is again an omission. The evidence that Kavita used to meet P.W.3 Mukarchand, is an omission. The evidence of P.W.3 that furniture was demanded by the accused and that Kavita disclosed that an unlawful demand for Rs. 3,000 was made, is inconsistent with the evidence of P.W.2. P.W.5 Nandkishor is the uncle of the deceased who states that the accused quarrelled on the issue of dowry and gift articles on occasion of his marriage with Kavita. He then states that when Kavita met him on the occasion of marriage of a relative, she disclosed that the accused are demanding money as dowry and are harassing her. The evidence that the accused quarrelled on the issue of dowry and that Kavita disclosed the demand for dowry and harassment, is an omission.
11. P.W.8 Vishwas Ranjangaonkar is the handwriting expert who is examined to prove that the letter is in the handwriting of the accused. The opinion of the said expert is Exhibit 55.
12. P.W.11 Suresh Sapkale is the Investigating Officer in whose cross-examination the omissions in the evidence of P.W.2, P.W.3 and P.W.5 are proved.
13. The letter addressed by the accused, to which a reference is made by P.W.2 is dated 20.11.1996. The letter makes a reference to Rs. 1,000 which P.W.2 was to send to the accused in Diwali. The letter states that the deceased Kavita was also wanting P.W.2 to send Rs. 1,000 by money order as soon as the letter is received. P.W.2 is then asked to send the sofa set, cot and tea table by goods carrier and to send the copy of the dispatch document by post. Firstly, even if the contents of the letter are taken at face value, they do not suggest that any demand for dowry was made. It has come on record in the evidence that the gift articles offered to the accused were not then taken by the accused. It is quite possible that the reference is to the gift articles which the accused did not carry home from Pandhurna. The letter does not take the case of the prosecution any further. If the evidence on record is tested on the anvil of the enunciation of law referred to supra, it is difficult to record a finding with any degree of certainty that the prosecution has proved that the deceased was subjected to cruelty within the meaning of Section 498A of the IPC. The evidence of the witnesses examined to prove cruelty is inconsistent, marred by contradictions and is not at all confidence inspiring. P.W.2, the father of the deceased does not even allege that the accused harassed or ill-treated the deceased. P.W.2 vaguely states that the deceased disclosed that her mother-in-law and sister-in-law harassed and ill-treated her. The details and particulars of the alleged ill-treatment and harassment are not forthcoming. P.W.2 admits that he had gifted cot, sofa set and tea table in marriage, which the accused did not take them. This admission is sufficient to explain the contents of the letter referred to supra. The evidence of other prosecution witnesses who are examined to prove cruelty is not only inconsistent with the evidence of P.W.2, the evidence is marred by improvements and inter se inconsistencies and is sketchy and bereft of particulars, to say the least. It would be extremely unsafe and hazardous to permit the conviction to rest on the evidence on record. The prosecution has not proved the offence beyond reasonable doubt.
14. The judgment and order impugned is set aside and the accused is acquitted of offence punishable under Sections 498A and 304B of the IPC.
15. The bail bond of the accused shall stand discharged.
16. Fine paid by the accused, if any, shall be refunded to him.
17. The appeal is allowed and is disposed of.
Appeal allowed.
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