@JUDGMENTTAG-ORDER
L.C. Bhadoo, J.
The accused/applicant namely Mohitram has preferred this application u/s 439 of the Cr.PC for releasing him on bail during trial.
The prosecution case, in brief, necessary for the disposal of this application is that deceased Matibai was married to the accused/applicant one year before the incident. On 12-2-2003 at about 11 a.m. Matibai committed suicide along with her 25 days son Manish by consuming poisonous substance. The accused/applicant gave merg intimation to the Police Station, Jarhagaon that today in the morning at about 7 a.m. he went to his agriculture field. His mother and father also went to the agriculture field. Only Matibai and his 25 days old son were at the residence. At about 11 a.m. his nephew Phulesh came to the field and informed him that his wife was not well and froth was coming out from her mouth. On hearing this he immediately rushed to the village where he found his wife dead and lying on the cot. On receiving this report police registered the merg intimation and started enquiry u/s 174 of the Cr.PC. The statements of the witnesses namely, father of deceased Chamruram, mother Mantora Bai, sister-in-law Kamlabai and other witnesses were recorded by the police during the enquiry.
The above witnesses in their case diary statements have stated that after the marriage of Matibai with the accused/applicant when she came to her parents'' house, she disclosed to her sister-in-law Kamlabai that her husband has illicit relations with the sister-in-law and he was regularly demanding Rs. 50,000/- and he used to say that her parents are beggars, they had not given anything in the dowry: If she would not bring Rs. 50,000/- then she would not be allowed to reside with him and he would bring his earlier wife and for bringing Rs. 50,000/- her husband used to beat her. The father of the deceased has also corroborated the above statement of Kamlabai and even he has stated that the applicant demanded that money twice from him also and he replied that he was a poor man, therefore, he was not in a position to pay that much of amount. Ultimately she committed suicide by consuming poison. Ultimately on 14-9-2003 Sub-Inspector, P.S. Mahila Thana registered the case against the accused/applicant u/s 304B of the IPC.
I have heard Shri R.R. Sinha, learned Counsel for the applicant and Shri Praveen Das, Panel Lawyer for the State.
Learned Counsel for the accused/applicant argued that deceased Matibai was the second wife of the accused/applicant and she was not legally wedded wife, therefore, offence u/s 304B of the IPC is not made out. He further argued that the incident took place on 12-2-2003. The parents of the deceased participated in the funeral ceremony but they had not reported the matter and the case was registered only after seven months from the date of the incident which itself shows that the harassment and subjecting the deceased to cruelty is even not prima facie made out.
On the other hand, learned Panel Lawyer opposed the bail application.
As far as first question raised by the learned Counsel for the applicant is concerned, Section 304B of the IPC envisages that "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". Therefore, in order to bring the particular act in the mischief of Section 304B of the IPC the requirement is:--
(i) the death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances,
(ii) within seven years of her marriage,
(iii) it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband, and
(iv) that too in connection with, any demand for dowry.
As far as first part is concerned, the death of Matibai occurred within one and half year of her marriage and that too by consuming poison, i.e., otherwise than under normal circumstances. As far as the question of subjecting her to cruelty or harassment in connection with the demand of dowry is concerned, the mother, father and sister-in-law of the deceased have categorically stated that the accused/applicant used to torture and harass the deceased for demand of Rs. 50,000/- and he used to say that nothing has been given in the dowry at the time of the marriage and the parents of the deceased are beggars. Even the father of the deceased has said that the accused demanded Rs. 50,000/- twice from him. The applicant even used to beat her, he used to say that he would throw her out of the house and he would bring his first wife. Therefore, the ingredients of the offence u/s 304B are satisfied with the above facts of the case.
Now, coming to the question that Matibai was not legally wedded wife, as per the prosecution case she was the second wife. If we look into the language of the section nowhere it has been mentioned that a woman should be legally wedded wife. The word even ''wife'' has not been used. The word which has been used by the legislature is a "woman". Moreover, it is admitted position that Matibai was married to the accused/applicant and out of the wedlock she delivered a male child who was of 25 days on the date of the incident. Therefore, it is established that deceased Matibai and the accused/applicant used to live as husband and wife and they were leading their lives as husband and wife. Even the mother, father and the sister-in-law of the deceased have categorically stated that Matibai was married to the accused/applicant. Therefore, in my opinion, the case is squarely covered under the provisions of Section 304B of the IPC. In this connection recent judgment of the Hon''ble Apex Court in the matter of Reema Aggarwal v. Anupam and Ors., reported in air 2004 SC 344. Similar points were raised before the Hon''ble Apex Court and in this case also Reema Aggarwal was the second wife of Anupam. The Hon''ble Apex Court held that--
"The concept of "dowry" is intermittently linked with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an issue further legalistic problems do arise. If the validity of the marriage itself is under legal scrutiny, the demand of dowry in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which Sections 498A and 304B and Section 113B of the Evidence Act were introduced can not be lost sight of. Legislations enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively requires to be interpreted with certain element of realism too and not merely pedantically or hyper technically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on becomes a victim of the greed for money. Can a person who enters into a marital arrangement be allowed to take a shelter behind a smokescreen to contend that since there was no valid marriage the question of dowry does not arise ? Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature "dowry" does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498A. It would be appropriate to construe the expression "husband" to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions -- Section 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B, IPC. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of "husband" to specifically include such persons who contract marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as "husband" is no ground to exclude them from the purview of Section 304B or 498A, IPC."
and the judgment of the High Court of Madhya Pradesh has been overruled in which it was held that the provisions of Section 304B of the IPC are attracted in the case of legally wedded wife.
Therefore, in view of the above judgment of the Hon''ble Apex Court, the intention of the Legislature behind inserting the provisions of Section 304B of IPC was that the husband and his relations who are responsible for the dowry death of a woman should be brought into the mischief of dowry death whether the marriage in question was valid or not. In order to attract the provisions of Sections 304B and 498A of IPC it is sufficient to show that the victim woman and the accused husband were residing as husband and wife at the relevant point of time. Therefore, I do not find any substance in the arguments of the learned Counsel for the accused/applicant.
Now, coming to the second argument that the death took place on 12-2-2003 and the case was registered on 14-9-2003. The merg intimation was given to the police on the same day and after post-mortem examination viscera were taken and the same were found to contain pesticides and during the enquiry u/s 174 of Cr.PC the parents and relatives of the deceased gave statements about the demand of dowry by the accused, thereafter the case was registered u/s 304B of IPC, therefore, the delay in registration of the case is not fatal in this case. It is not the case that the parents of the deceased have falsely implicated the accused. They are very poor persons and even if they participated in the last rites and if they have not reported the matter that does not absolve the accused/applicant from the heinous crime. If a cognizable offence is committed and that is brought to the notice of the police by anyone as per the provisions of Section 154(1) of the Cr.PC the police is bound to register the case and investigate the same.
As per the provisions of Section 157(1) of the Cr.PC "if, from information received or otherwise, an officer incharge of a police station has "reason to suspect the commission" of an offence which he is empowered u/s 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender". Therefore, under this provision on receiving the information if the police suspect the commission of a cognizable offence, the S.H.O. can take up investigation, even if it is not reported by the parents of the deceased as in the present case the merg intimation was already, given by the accused/applicant, the police is not debarred from investigating in to the matter. If the matter is not reported by the close relatives of the deceased and after investigation and collection of the evidence if police reaches to the conclusion that a particular offence has been committed by any person then police certainly can take up the matter, register the case and file the charge-sheet. Therefore, merely by no reporting the matter by the parents of the deceased does not make the case weak at all if it is otherwise genuine and established. Moreover, at this stage, neither it is required nor necessary to give any opinion or finding on this aspect of the matter because the matter is under investigation. Police has to collect evidence and material and to ultimately reach to the final conclusion after completion of the evidence. There is a Hon''ble Apex Court''s judgment that at the time of death of a woman the parents are under shock and grief, therefore, if they had not reported the matter to the police on an urgent basis that can not make the case doubtful or weak. Moreover, in the present case, the husband already reported the matter to the police and police registered the merg intimation on the same day and started the enquiry. When police already started the enquiry that might have given the impression to the parents that when the police is already enquiring into the matter they are not required to report, as has come on record that they are very poor persons.
Therefore, in view of the above, the accused/applicant is involved in a very serious offence punishable u/s 304B of the IPC, I am of the opinion that looking to the seriousness of the crime the accused/applicant is not entitled for the benefit of Section 439 of the Cr.PC for releasing him on bail during trial. Accordingly, the application is rejected.
