@JUDGMENTTAG-ORDER
D.D. Sinha, J.@mdashThe present Criminal Appeal is preferred by the appellants original accused Nos. 1, 2 and 4 against the judgment and order dated 18-11-1994 passed by the II Additional Sessions Judge, Parbhani, in Sessions Case No. 1 of 1992, whereby the present appellants are convicted for the offence punishable u/s 304-B and 498-A read with section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years each and further directed to pay fine of Rs. 500/- each, in default rigorous imprisonment for one month each.
2. In order to consider the complicity of the appellants in the crime in question, in our opinion, it will be appropriate to consider few facts leading to the prosecution of the appellants for the offence charged.
3. In the instant case it is alleged by the prosecution that the present case falls within the category of cases of dowry death. It is therefore necessary to consider the facts of the prosecution case. That the deceased by name Maheshwari @ Swati was the sister of P.W. 6 Madhusudan. Swati was married to accused No. 1 Satish on 7th June, 1991 at Beed. Satish was residing at Parbhani. He was a contractor. His father i.e. father-in-law of the deceased Swati, Baburao Govindrao Dudhgaonkar was in the Government service, accused No. 4 Sow. Sumanbai w/o Baburao Dudhgaonkar is the mother-in-law of the deceased Swati. Accused No. 3 Girish Dudhgaonkar is the real brother of accused No. 1 Satish and was residing with them at the relevant time at Parbhani. Swati, after her marriage was living in her matrimonial home with her husband accused No. 1 Satish alongwith other accused. It is alleged that all the four accused have started harassing the deceased immediately after her marriage since she has failed to bring the articles i.e. gold ring and almirah from her relatives as a part of dowry and, therefore, she was ill-treated on this count by the accused. After about 1 1/2 months of her marriage, her brother Vishwambhar had been to Parbhani to fetch Swati. At that time, he was insulted by the accused on account of the fact that the accused were not given good clothes in the marriage. Deceased Swati told her brother P.W. 6 Madhusudan and other relatives that the accused were harassing her physically and mentally since gold ring as promised by them was not given to the accused No. 1. P.W. 6 Madhusudan had gone to Parbhani to fetch his sister Swati and when they were about to leave the matrimonial house of Swati, accused No. 4 Sumanbai took out the clothes of Swati from one godrej almirah and told her that she should bring godrej almirah when she would return. The accused No. 4 also snatched golden ring and ear ring from the person of Swati. On 22-11-1991 P.W. 8 Nabha (aunt of deceased Swati) had gone to Parbhani and met Swati. She returned to Beed on the same day i.e. on 22-11-1991 and informed P.W. 6 Madhusudan and other relatives that accused were giving Swati physical and mental torture and therefore on 23-11-1991 P.W. 6 Madhusudan alongwith his friends and relatives had been to Parbhani to bring back the deceased Swati to Beed. They visited the matrimonial house of Swati at about 6.00 p.m. on 23-11-1991. All the accused were present at home. P.W. 6 Madhusudhan requested the accused No. 1 to send the deceased Swati along with them. However, accused No. 1 refused to send her with them, on the contrary accused No. 1 abused them and drove them out of his house. P.W. 6 Madhusudan and the other relatives of Swati thereafter had gone to their another relatives who was residing at Parbhani and after some time again came to the house of the accused. At that lime they saw a mob was gathered in front of the house of the accused No. 1. There they came to know that Swati had sustained burn injuries and was taken to the hospital by P.W. 5 Ramrao Pathrikar. P.W. 6 Madhusudan thereafter lodged the F.I.R. i.e. Exhibit-34. After completion of the investigation, the charge-sheet was filed by the prosecution against all the four accused.
4. The learned Counsel for the appellants submitted that in the instant case, there is no direct evidence adduced by the prosecution. Similarly, the prosecution has failed to prove the ingredients of offence punishable u/s 304-B and 498-A of the Indian Penal Code, in order to hold the appellants responsible for the offences charged. He has further contended that the prosecution did not conclusively prove that these appellants subjected the deceased Swati to cruelty or harassment and therefore, the death of Swati cannot fall within the ambit of section 304-B i.e. ''dowry death''. The learned Counsel for the appellants further contended that in absence of the positive proof of cause of death of Swati, it cannot be presumed that the death has occurred in unnatural circumstances and therefore, according to the learned Counsel the appreciation of the evidence done by the trial Court and the findings arrived at are misconceived and devoid of substance and the same are unsustainable in law.
5. The learned Counsel for the appellants further contended that the prosecution even did not prove the fact of demand of dowry by the present appellants and, therefore, contended that the conviction awarded by the learned trial Judge is bad-in-!aw and is liable to be set aside.
6. In our opinion, it is necessary to consider the aims and object of section 304-B as well as section 498-A of I.P.C., before we consider the arguments advanced by the learned Counsel for the appellants as well as the learned A.P.P. for the respondent-State. It is also necessary to consider the requirements which are required to be proved by the prosecution in order to hold a person guilty of these offences before we appreciate the evidence adduced by the prosecution in this regard. Section 304-B of I.P.C. contemplates that :-
"1. Where the death of a women 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 sub-section "dowry death" shall have the same meaning as in section 2 of the Dowry (Prohibition) Act, 1961.
(ii) Whosoever 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."
7. Our society time and again had to face various social economic problems which has adversely affected even the tempo of our society. However, demand of dowry in the civilized society is worst kind of social evil which had started destroying the basic fiber of the society and the cases of dowry death had paralysed the human conscious and affected the basic structure of our society. The lust for money and the torture to the newly wedded wife has become the order of the day and the cases of dowry death have alarmingly increased in the recent pase and the value of human life was reduced to few chips of currency notes. When this social evil started eating vitally of our society, and ordinary penal law was insufficient, to control and punish the guilty, a need was badly felt to evolve a legislation to curb and destroy this social evil before it takes a form of epidemic and destroy the entire society, hence section 304-B was inserted by the Dowry Prohibition (Amendment) Act, 1986 with the sole object to prevent the cases of dowry death and to punish the guilty. Similarly, keeping in view the aims and object of section 304-B of I.PC., section 113-A was introduced in the Evidence Act to raise presumption as to dowry death. Section 113-A contemplates that :-
"When the question is whether a person has committed the dowry death of a women and it is known that soon before her death such women 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 persons 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 I.P.C.
8. After careful consideration of the provisions of section 304-B of I.P.C. we are of the opinion that the prosecution is required to prove the following essential ingredients before the criminal liability in respect of the said offence can be fastened on the accused. Those are :
(i) the death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) such death should be occurred within seven years of her marriage;
(iii) she should have been subjected to cruelty or harassment by her husband or any relative of her husband;
(iv) such cruelty or harassment should be for or in connection with the demand for dowry;
9. In order to attract the presumption u/s 113-A of the Evidence Act, the evidence must show that soon before the death, such woman has been subjected to cruelty or harassment or for or in connection with any demand for dowry, then only the Court shall presume that such person has committed the dowry death. In order to construe the definition of cruelty, we have to consider the meaning of cruelty contemplated in section 498-A of I.P.C. which means "that any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life or harassment to her or any other person related to her to meet any 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. Similarly, as per the definition of ''dowry'' any property or valuable security given or agreed to be given either at or before or any time after marriage comes within the ambit of "dowry". On the backdrop of this legal proposition, it will be proper to appreciate the relevant prosecution evidence in the present case.
10. In the instant case, the present appellants along with original accused No. 3 Girish Baburao Dudhgaonkar were charged with the offence punishable u/s 302 read with section 34 of I.P.C. All the four accused were also charged with commission of offences punishable u/s 304-B and 498-A read with section 34 of the Indian Penal Code. However, the learned II Additional Sessions Judge, Parbhani, vide his judgment and order dated 18-11-1994, acquitted the present appellants as well as the original accused No. 3 Girish of the offence punishable u/s 302 read with section 34 of the Indian Penal Code. The original accused No. 3 Girish was also acquitted of the offence punishable u/s 304-B and 498-A read with section 34 of the I.P.C. Since the present appellants i.e. the original accused Nos. 1,2 and 4 are only convicted for the offence punishable u/s 304-B and 498-A read with section 34 of the I.P.C., we are required to consider the relevant prosecution evidence in order to find out, whether the prosecution has proved the case against the present appellants for the offence punishable u/s 304-B and 498-A read with section 34 of I.P.C. Since the State has not preferred any appeal against the order of acquittal of the appellants for offence punishable u/s 302 read with section 34 of the I.P.C., it is not necessary to consider the other evidence adduced by the prosecution in regard to the offence u/s 302 read with section 34 of the I.P.C.
11. The material evidence adduced by the prosecution is that of P.W. 6 Madhusudan. It has come in the evidence of this witness that at the time of settlement of the marriage of the deceased Swati, it was agreed to give eight tolas of gold and to and fro expense. It was also agreed that one gold ring and one almirah shall be given after marriage. The evidence of this witness shows that since due to the weak financial condition gold ring as well as almirah could not be given to the accused No. 1. The evidence of P.W. 8 Nabha, P.W. 9 Sudha Deshpande also corroborates the evidence of P.W. 6 Madhusudan on this point. The evidence of all these witnesses is consistent regarding the settlement of marriage of deceased Swati, the articles agreed to be given at the time of marriage and some of the articles could not be given to the accused at the time of the marriage. Hence, the articles referred by these witnesses in their evidence were in connection with the marriage and comes within the meaning and ambit of section (2) of Dowry Prohibition Act, 1961. Though there are some omissions brought on record in the cross-examination of this witness, but the same are in our opinion, not sufficient to discard the testimony of all these witnesses on this point, which appears to us quite cogent and straight forward.
12. In the instant case, it is an admitted fact that the deceased Swati died due to burn injuries. The evidence of Dr. Husain P.W. 12 shows that he had conducted autopsy of the dead body of deceased Swati and noticed the following burn injuries :
(i) Head, neck and face 7% to right upper extremity 8%
(ii) Left upper extremity 9%
(iii) Anterior trunk chest and abdomen 12%
(iv) Posterior trunk 17%
(v) Right lower extremity 17%
(vi) Left lower extremity-17%
(vii) perineum 1%
P.W. 12 Dr. Husain has opined that the cause of death was due to cardio respiratory failure due to shock due to toxemia caused by extensive deep burns. The percentage of burns was shown to be 88 percent.
13. The evidence of the Doctor Husain P.W. 12 has gone unchallenged since there is no cross-examination conducted by the defence and therefore, it can safely be held that the deceased Swati died due to burn injuries.
14. In the instant case, the defence has not disputed that the death of Swati was otherwise than in the natural circumstances, which can be seen from the evidence of D.W. 1 Mr. Piratwar. It has come in the evidence of this witness that he has recorded the statement of Swati Exhibit-83 which shows that it was a suicidal death. Similarly, the evidence of P.W. 5 Ramrao Pathrikar shows that when this witness had reached the house of the accused No. 1 at the relevant time, he saw deceased Swati was in burn condition and he himself has taken her to the hospital. It is thus clear that the cause of death of Swati was due to burns and the same can safely be said that the same was otherwise than in the natural circumstances.
15. It is also an admitted fact that the marriage of the deceased Swati was performed with accused No. 1 Satish on 7th June, 1991 at Beed town and in view of the evidence of Dr. Husain P.W. 12, and Pathrikar P.W. 5, Swati died an unnatural death due to burns on 23-11-1991 i.e. admittedly within a span of six months and some odd days i.e. much before the completion of seven years of her marriage.
16. In the instant case the F.I.R. i.e. Exh. 34 lodged by the complainant P.W. 6 Madhusudan (brother of the deceased Swati) assumes importance because the same was lodged with the police station almost immediately after the incident in question. The perusal of the F.I.R. would show that the complainant has given the details about the articles to be given in dowry at the time of marriage and the articles which were demanded by the accused in connection with the dowry after the marriage, as well as the harassment and ill-treatment meted out to the deceased by the accused No. 1 Satish on account of non-fulfilment of their demand in respect of the articles to be given to the accused No. 1 in connection with the dowry. The immediate lodging of the F.l.R. in our opinion completely rules out the possibility of concoction and fabrication. Similarly, the material particulars of the prosecution case are finding place in the F.l.R. Exhibit- 34. This witness in his substantive evidence before the Court has stated that the marriage of deceased Swati with accused No. 1 was performed on 7-6-1991 at Beed. In the marriage 8 totals gold was given as dowry to the accused No. 1 as well as travelling expense from Beed to Parbhani was also given. It has also come in the evidence of this witness that since the financial condition of the family of the P.W. 6 Madhusudan was not sound, the gold ring and godrej almirah could not be given at the time of the marriage. It has further come in the evidence of this witness that when his sister Swati had come to his house at Beed, for Mangalagauri, she told him that the accused persons were troubling her because she was not a fair looking lady and did not know the art of cooking. She has specifically told this witness that the accused No. 1 demanded gold ring, however, since the financial position was not sound, the same could not be fulfilled. The evidence of this witness further shows that the accused No. 1 demanded gold ring and Swati was ill-treated on account of non-fulfilment of the said demand made by accused No. 1. Nothing has come in the cross-examination of this witness P.W. 6 Madhusudan so as to discard the testimony of this witness as regards to the demand made by accused No. 1 in respect of gold ring and the ill-treatment meted out to [he deceased Swati. However, the evidence of this witness is silent in respect of positive complicity of accused No. 2 Baburao and accused No. 4 Smt. Sumanbai in respect of either ill-treatment or harassment to the deceased Swati on account of demand of dowry. The evidence of this witness P.W. 6 Madhusudan completely corroborates all the material particulars of the prosecution case stated in the F.I.R. Exhibit-34. It has also come in the evidence of this witness that on the date of incident i.e. on 23-11-1991 this witnesses well as some of his relatives and friends had gone to the matrimonial house of Swati and requested accused No. 1 to send Swati along with them. However, accused No. 1 not only refused to send Swati along with them, but they were insulted and asked to leave the house.
17. The evidence of P.W. 5 Ramrao Pathrikar would show that while he was taking deceased Swati to the hospital in an auto-rickshaw the deceased Swati told him that since last 2/3 days there was a mental torture to her and her relatives from Beed, who had come to her. P.W. 5 Pathrikar is an independent witness and is a resident of Ekta Colony of Parbhani which is adjacent to the house of the accused persons which is situated in Samata Colony. There are no omissions or contradictions in regard to the material particulars about the ill-treatment or harassment meted out to the deceased Swati by the accused No. 1.
18. The prosecution has examined P.W. 7 Amarja Govind Joshi, who was classmate of deceased Swati as well as P.W. 8 Nabha Janardhan Thigale in order to establish the demand of gold ring made by the accused No. 1 and the deceased Swati was ill-treated and harassed due to non-fulfilment of the demand made by the accused No. 1. It is however true that there are some omissions brought on record by the defence. However, their evidence cannot be brushed aside in respect of material particulars of the prosecution case in respect of demand made by the accused No. 1 and Ehe ill-treatment meted out to the deceased Swati at the hands of the accused No. 1 Satish in particular. However, the evidence of these witnesses failed to prove the complicity of accused No. 2 Baburao and accused No. 4 Sow. Sumanbai for the offence punishable u/s 304-B as well as u/s 498-A of the Indian Penal Code. The evidence of these witnesses is totally vague in regard to complicity of accused Nos. 2 and 4. Since the evidence of P.W. 6 Madhusudan, P.W. 7 Amarja and P.W. 8 Nabha as well as P.W. 9 Sudha, clearly proves the complicity of accused No. 1 in respect of demand of gold ring and ill-treatment on account of the same to Swati. However, the testimonies of these witnesses is vague in order to establish conclusively the complicity of accused No. 2 Baburao and accused No. 4 Sumanbai for the offence punishable u/s 304-B and 498-A read with section 34 of the Indian Penal Code.
19. In the instant case the conduct of the accused No. 1 Satish at the time of occurrence of incident and thereafter speak volumes about the extent of hatred he had shown towards his wife deceased Swati who was married to him just five months prior to the date of incident in question. It is an admitted fact that deceased Swati caught fire in her matrimonial home. She had shouted for help. The mob was gathered in front of her matrimonial house. However, though the accused No. 1 Satish was present in the house, he did not even bother to extinguish the fire nor rendered any kind of help to the deceased Swati. It is also an admitted fact that at the relevant time P.W. 5 Pathrikar had gone to the matrimonial house of Swati and saw Swati in a burnt condition and he took Swati to the hospital in auto-rickshaw and admitted her in the hospital. The accused No. 1 did not even accompany, his wife on way to the hospital nor was present in the hospital when P.W. 5 Pathrikar admitted deceased Swati in the hospital. The abnormal conduct of the accused No. 1 would clearly show to what extent the accused No. 1 had developed hatred towards his wife on the basis of the proved facts and circumstances brought on record. We have no hesitation to hold that the said hatred shown by the accused No. 1 was only due to non-fulfillment of the demand made by the accused No. 1 in respect of gold ring from the relatives of the deceased Swati.
20. Similarly, the evidence of P.W. 6 Madhusudhan shows that on 23-11-1991, when this witness along with other relatives had gone to the house of the accused No. 1 at about 6.00 p.m. and requested the accused No. 1 to allow deceased Swati to go with them, the accused No. 1 not only refused to allow Swati to go with them but driven them from his house. This conduct of accused No. 1, in our opinion, is also a reflection of his brutal attitude towards his own wife i.e. deceased Swati and her relations.
21. In order to consider whether the presumption u/s 113-A of the Evidence Act is attracted in the instant case, it is necessary to consider the evidence of the prosecution in this regard. The testimony of P.W. 8 Nabha is relevant. She has, in regard to this aspect of the prosecution case, stated that on 22-11 -1991 she had been to Parbhani and met the deceased Swati. At that time, deceased Swati told this witness that the degree of ill-treatment has been increased and the accused even started severely beating her and there was a consistent demand of gold ring and cup-board. It has come in her examination-in-chief that she then returned back to Beed on 22-11 -1991 and narrated all these facts to P.W. 6 Madhusudan and her father in law. It has also come in the evidence of this witness that she asked them to bring Swati back to Beed. It is, however, true that there are some omissions in her evidence which otherwise would have been material. However, the very fact on 23-11-1991 i.e. immediately on the next day P.W. 6 Madhusudan alongwith his friends and relatives had gone to Parbhani from Beed to bring Swati back to Beed would show that the evidence of this witness P.W. 8 regarding the disclosure by the deceased Swati to her on 22-11-1991 in respect of ill-treatment on account of demand of gold ring cannot be brushed aside, which in our opinion, proves that the deceased Swati had been subjected to cruelty or harassment in connection with the demand of dowry just before the incident in question hence the presumption u/s 113-A of the Evidence Act is clearly attracted in the instant case as against accused No. 1.
22. In order to established the presence of the accused at the relevant time, the prosecution has also examined P.W 2, 3, 4 & 5 and their evidence is acceptable in this regard.
23. We have also considered the other evidence adduced by the prosecution including the dying declarations made by the deceased Swati. However, the present appellants being acquitted for the offence punishable u/s 302 read with section 34 of I.P.C. it is not much relevant for the purposes of considering the complicity of the present appellants for the offence punishable u/s 304-B and section 498-A of the l.P.C .
24. We have also considered the letters Exhs. 35, 36, 40, 41, 42, 43, 44 & 45. However, the ocular testimony of the prosecution witness P.W. 6 Madhusudan, P.W. 5 Pathrikar, P.W. 8 Nabha, P.W. 7 Amarja, P.W. 9 Sudha cannot be discarded namely because there is no specific mention in these letters about the specific ill-treatment meted out to the deceased Swati. It is pertinent to note that letter Exhibit-35 is written by P.W. 6 Madhusudan dated 23-9-1991 to the accused No. 1. Exhibit-36 is the letter dated 1-11-1991 written by P.W. 6 Madhusudan to the accused No. 2 Baburao. Exhibit-41 is the letter dated 3-8-1991 written by Nabha P.W. 8 to Swati. Exhibit-42 is the letter dated 1-9-1991 written by P.W. 8 Nabha to Swati, Exhibit-43 is the letter dated 7-8-1991 written by P.W. 8 Nabha to the deceased Swati and Exhibit-44 is the letter written by Thigale to accused No. 4 Sumanbai, Exhibit-45 is letter dated 24-6-1991 written by P.W. 8 Nabha to deceased Swati. It is thus clear these all that letters accept Exhibit-40 are written by these persons related to the deceased Swati or the accused and therefore non mentioning of any specific ill-treatment and demand in this letters in our opinion, does not destroy the ocular evidence of the prosecution witnesses in respect of the demand of gold ring by the accused No. 1 and the ill-treatment meted out to the deceased Swati by the accused No. 1 on that count. Since the prosecution evidence failed to proved the complicity of accused No. 2 Baburao and accused No. 4 Sow. Sumanbai for the offences charged the presumption u/s 113-A of the evidence Act is not attracted in respect of them. Similarly, since the prosecution evidence failed to establish that accused No. 2 Baburao and accused No. 4 Sow. Sumanbai had shared common intention in respect of the demand of the dowry and cruelty and the harassment meted out to deceased Swati on account of such demand along with the accused No. 1 the conviction by the aid of section 34 of the l.P.C. for the offence charged also cannot be sustained.
25. After taking into consideration the relevant prosecution evidence, and for the reasons stated above, we are of the opinion that the prosecution have proved the case for the offence punishable u/s 304-B and 498-A of the l.P.C. only against the accused No. 1 Satish s/o Baburao Dudhgaonkar, and therefore conviction and sentence awarded by the learned II Additional Sessions Judge, Parbhani to the accused/appellant No. 1 Satish for the offence punishable u/s 304-B and 498-A of the l.P.C. is hereby confirmed and the appeal preferred by the appellant (original accused No. 1) is hereby dismissed.
26. As for as the appeal preferred by the appellant No. 2 Baburao s/o Govindrao Dudhgaonkar (original accused No. 2) and the appellant No. 3 (original accused No. 4) and the conviction and sentences awarded to them by the learned II Additional Sessions Judge, Prabhani for the offence punishable u/s 304-B and 498-A read with section 34 of l.P.C. is hereby set aside and they are hereby acquitted for the said offences. Fine, if paid by them be refunded. Bail bond of appellant No. 3 Sow. Sumanbai is cancelled, appellants No. 2 & 3 be set at liberty, if not required in any other offence.
27. Appeal partly allowed.
