2004 ALL MR (Cri) 981
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.M. KANADE AND S.R. SATHE, JJ.

Nitin Shankar Kadkol Vs. Union Of India & Ors.

Criminal Writ Petition No.463 of 1998

17th December, 2003

Petitioner Counsel: Mr. K. K. MALPATHAK
Respondent Counsel: Mr. A. J. RANA, Mr. V. H. KANTHARIA, Mr. T. C. KAUSHIK

(A) Constitution of India, Arts.226, 227 - Jurisdiction of High Court under - Exercise of - High Court can exercise its jurisdiction under Arts.226, 227 by way of judicial review only where there is an infraction of any mandatory provisions of the Act pertaining to the procedure which has caused gross miscarriage of justice - Also, for finding out that there has been violation of principles of natural justice or where the authority exercising the jurisdiction has not been vested with the jurisdiction under the Act. (2003)6 SCC 359 - Followed. (Para 10)

(B) Constitution of India, Arts.226, 227 - Navy Act (1957) - Proceedings with Court-Martial - Obligation on confirming Authority - There is no obligation on confirming Authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings of the Court-martial. Army Act (1950), Ss.164, 165. AIR 1969 SC 414 - Followed. (Para 11)

(C) Penal Code (1860), S.304B - Dowry death - Scope of - Merely because cruelty and harassment has been caused to wife soon after the marriage and death has occurred, S.304-B cannot be said to have attracted - What is contemplated under S.304-B is that soon after the marriage the husband had treated the wife with cruelty or harassment for the purpose of demand of dowry. Evidence Act (1872), S.113-B. 1997(3) ALL MR 481 - Followed. (Para 15)

Cases Cited:
Union of India Vs. Himmat Singh Chahar, (1999)4 SCC 521 [Para 9]
Union of India Vs. Shivendra Bikaram Singh, (2003)6 SCC 359 [Para 9]
Som Datt Datta Vs. Union of India, AIR 1969 SC 414 [Para 11]
S. N. Mukherjee Vs. Union of India, AIR 1990 SC 1984 [Para 11]
Shamlal Vs. State of Maharashtra, 1997(3) ALL MR 481=1997(9) SCC 759 [Para 15]
Arjun Dhondiba Kamble Vs. State of Maharashtra, 1993 Mh.L.J. 1007 [Para 15]


JUDGMENT

V. M. KANADE, J.:- The Petitioner has filed this Petition under Article 226 of the Constitution of India challenging the Order passed in court-martial proceedings and Judicial Review of Trial by the Chief of Naval Staff whereby the Petitioner was sentenced to suffer imprisonment for life for having committed the murder of his wife and he was also directed to be dismissed with disgrace from Naval Service.

2. The Petitioner was working as an Engineering Mechanic, Ist Class on INS Angre in the Indian Navy. A charge was framed by the Commodore, Commanding Officer, INS Angre dated 13/12/1996 in which it was alleged that (a) on 29/1/1994 while he was residing at 28, Khukri Hostel. Navy Nagar, Colaba, he subjected his wife-Padma to cruelty & harassment with a view to coerce her and her relatives to meet his unlawful demand of cash etc. and thereby committed an offence under Section 498-A of the Indian Penal Code read with Section 77(2) of the Navy Act,1957 and (b) that on 29/1/1994 between 2000 Hrs. & 2300 Hrs. the Petitioner caused death of Padma by pouring kerosene on her person and putting her on fire and thereby committed an offence under Section 77(2) of the Navy Act, 1957.

3. The brief facts are as under :-

4. The Petitioner and his wife were residing at Flat No.28, Khukri Building, Navy Nagar, which were the quarters allotted to him by the Navy. The Petitioner got married in December, 1992. On 29/1/1994, as per the First Dying Declaration recorded by the deceased on 30/1/1994, the Petitioner and his deceased wife had met one Vijay Bhaiyya at 4.00 P.M. where they spent their time watching T.V. Thereafter, at about 10.00 P.M., they came back to the Petitioner's house after purchasing vegetables. The deceased went into the kitchen for preparing the dinner and at about 10.40 P.M., the Petitioner was in the bath-room and the deceased had kept water for boiling on the stove. After pumping the stove, she lighted a match stick near the burner when there was a sudden explosion and her clothes caught fire. She shouted for help and hearing her screams, her husband i.e. the Petitioner came out of the bath-room and threw water on her and doused the flames. Thereafter the husband brought her down stairs and with the help of others took her in Ambulance to Ashwini Hospital for treatment. In the First Dying Declaration, the deceased had stated in clear terms that there was no dispute or quarrel with her husband and her relations with him were cordial. She had further categorically stated that the incident had taken place due to sudden flare up of the stove. Dr. D. Dhar who was present at the time of recording of the Dying Declaration has observed that the deceased was in her complete senses. This observation was recorded in the presence of Special Executive Magistrate - Mohan Sevakram Kasotia. This Dying Declaration was recorded in the presence of Police Sub-Inspector, Colaba Police Station. Thereafter, father of the deceased had arrived and subsequently her mother and her sister Mamata came to the hospital and on 8/2/1994, the statement of the deceased was recorded which was totally at variance with what had been recorded on 29/1/1994. This statement was recorded in the presence of Shri. Khamkar, Special Executive Magistrate. As a result of the Second Dying Declaration, the FIR came to be lodged on 11/2/1994. Apart from the Dying Declaration, there was no other evidence directly linking the Petitioner with the offence for which he was charged.

5. The court-martial recorded the evidence of the witnesses and has also recorded summing up of defence as well as of the Prosecution and that of the Trial Judge. However, the court-martial recorded his finding that the Petitioner was guilty of the said offence on both counts. The Petitioner was sentenced to life imprisonment and was dismissed with disgrace from the Naval Service.

6. The Petitioner preferred Judicial Review of Trial by the court-martial to the Chief of Naval Staff. The first application for judicial review however, was dismissed by the Chief of Naval Staff without assigning any reasons whatsoever. Petitioner has filed this Writ Petition under Articles 226 and 227 of the Constitution of India and is challenging the aforesaid orders passed by both the authorities.

SUBMISSIONS :

7. The learned Counsel appearing on behalf of the Petitioner has submitted that the court-martial erred in holding that the Petitioner was guilty under section 304-B of the Indian Penal Code. That, the basic ingredients of Section 304-B was not spelt out from the evidence on record. He further submitted that the trial judge advocate ought to have intimated the court-martial that the witnesses have clearly deposed that there was no dowry demanded at the time of marriage either by Petitioner or his parents and hence Section 304-B would not apply in the present case. He further submitted that there was non-compliance of the statutory duty which is imposed upon the trial judge advocate as provided under Sections 113 and 114 of the Navy Act. He further submitted that the trial judge advocate and the Review Authority failed to notice the discrepancies in the Dying Declaration dated 8/2/1994 and that the Special Executive Magistrate Shri. Khamkar had clearly stated that the deceased was not in a condition to understand the question and give coherent replies. The learned Counsel appearing on behalf of the Petitioner further relied upon various Judgments of the Apex Court in support of his submissions.

8. The learned Counsel appearing on behalf of the Respondents submitted that though the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226, however, it would be for limited purpose of finding out as to whether there has been any infraction of mandatory provisions of the Act pertaining to the procedure which has caused miscarriage of justice or for finding out as to whether there has been a violation of principles of natural justice which vitiates the entire proceedings or that the authority exercising the jurisdiction had not been vested with the jurisdiction under the Act. It was submitted that the said power of judicial review cannot be a power of Appellate Authority permitting the High Court to reappreciate the evidence or come to the conclusion that the evidence was insufficient for the conclusion arrived at by the Competent Authority in court-martial Proceedings. It was further submitted that the court-martial trying the Petitioner's case had arrived at a finding that the Petitioner was guilty of the offence with which he was charged and had passed the appropriate sentence under the law. This Order was confirmed by the Judge Advocate General. It was submitted that the Petitioner nowhere in the Petition has contended that the procedure adopted by the court-martial was in violation of the Navy Act, 1957 or Regulations framed thereunder and, therefore, this Court should not exercise its jurisdiction and powers under Articles 226 and 227 of the Constitution of India.

FINDINGS :

9. We have heard the learned Counsel appearing on behalf of the Petitioner and the Respondents at length. Before going into the merits of the matter, it would be profitable to summarise the scope of the power which can be exercised by the High Court while exercising its jurisdiction under Articles 226 and 227 of the Constitution of India. The Apex Court in the case of Union of India and Others Vs. Himmat Singh Chahar reported in (1999)4 Supreme Court Cases 521 has observed in para 4 as under :-

"4. Since the entire procedure is provided in the Act itself and the Act also provides for a further consideration by the Chief of the Naval Staff and then by the Union Government then ordinarily there should be a finality to the findings arrived at by the competent authority in the court-martial proceedings. It is of course true that notwithstanding the finality attached to the orders of the competent authority in the court-martial proceedings the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose of finding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out that whether there has been violation of the principles of natural justice which vitiates the entire proceedings or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act. The said power of judicial review cannot be a power of an appellate authority permitting the High Court to reappreciate the evidence and in coming to a conclusion that the evidence is insufficient for the conclusion arrived at by the competent authorities in court-martial proceedings. At any rate it cannot be higher than the jurisdiction of the High Court exercised under Article 227 against an order of an inferior tribunal. This being the parameter for exercise of power of judicial review against the findings of a competent authority in court-martial proceedings, and applying the same to the impugned judgment of the High Court we have no hesitation to come to the conclusion that the High Court overstepped its jurisdiction in trying to reappreciate the evidence of Mrs. Nirmala Sharma and in coming to the conclusion that her evidence is not credible enough to give a finding of guilt against the respondent of a charge under Section 354. We have also perused the statement of Mrs. Nirmala Sharma and the conclusion becomes inescapable on the basis of the said statement of Mrs. Nirmala Sharama that the respondent has been rightly found to have committed offence under section 354 by the authorities in the court-martial proceedings."

Similarly, the Apex Court in its recent Judgment in the case of Union of India and Others Vs. Shivendra Bikaram Singh reported in (2003)6 SCC 359 while considering the scope of interference by the High Court in exercising its jurisdiction under Articles 226 and 227 of the Constitution has observed in para 28 as under :-

"28. In Union of India Vs. Major A. Hussain while dealing with the parameters of judicial review and interference with court-martial proceedings this Court observed : (SCC p.549, para 23)

"23. Though court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the Court Martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a Court Martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any court must stay its hands." (emphasis supplied).

10. In the light of this, it is clear that the High Court can exercise its jurisdiction under Articles 226 & 227 of the Constitution of India by way of judicial review only where there is an infraction of any mandatory provision of the Act pertaining to the procedure which has caused gross miscarriage of justice or for finding out that there has been violation of principles of natural justice or where the authority exercising the jurisdiction has not been vested with the jurisdiction under the Act.

11. The first submission made by the learned Counsel appearing for the petitioner is that while confirming the order of the court-martial, the Appellate Authority has not given any reasons and therefore, the said Order is vitiated. In our view, the said submission of the Petitioner cannot be accepted. The Apex Court has consistently held that there is no obligation on the Confirming Authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings with the court-martial. The Apex Court in the case of Som Datt Datta Vs. Union of India and others reported in AIR 1969 SC 414 has observed in para 10 as under :-

"10. In the present case it is manifest that there is no express obligation imposed by Section 164 or by Section 165 of the Army Act on the confirming authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings of the Court Martial. Mr. Dutta has been unable to point out any other section of the Act or any of the rule made therein from which necessary implication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority. Apart from any requirement imposed by the statute or statutory rule expressly or by necessary implication, we are unable to accept the contention of Mr. Dutta that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision."

Similarly, the Apex Court in the case of S. N. Mukherjee Vs. Union of India reported in AIR 1990 SC 1984 has reiterated the same principle in paras 47 and 48 as under :-

"47. For the reasons aforesaid it must be held that reasons are not required to be recorded for an order passed by the confirming authority confirming the findings and sentence recorded by the court-martial as well as for the order passed by the Central Government dismissing the post-confirmation petition. Since we have arrived at the same conclusion as in Som Datt case (AIR 1969 SC 414) (supra) the submission of Shri. Ganguli that the said decision needs reconsideration cannot be accepted and is, therefore, rejected."

"48. But that is not the end of the matter because even though there is no requirement to record reasons by the confirming authority while passing the order confirming the findings and sentence of the court-martial or by the Central Government while passing its order on the post-confirmation petition, it is open to the person aggrieved by such an order to challenge the validity of the same before this Court under Article 32 of the Constitution or before the High Court under Article 226 of the Constitution and he can obtain appropriate relief in those proceedings."

Thus the said submission made on behalf of the learned Counsel appearing for the Petitioner cannot be accepted. The second submission which is made by the learned counsel appearing on behalf of the Petitioner is that the court-martial erred in finding the Petitioner guilty under section 304-B of the Indian Penal Code even though the basic ingredients of Section 304-B were non existent. He submitted that, therefore, the Judge Advocate General had not correctly appraised the court-martial Authority about the legal aspects of the matter. It was submitted that it was a legal duty of the trial judge advocate to have intimated the court-martial that the witnesses had clearly deposed that there was no dowry demanded at the time of marriage either by the Petitioner or his parents and therefore, Section 304-B would not apply and, therefore, it was submitted that there was non-compliance of the statutory duty by the learned trial judge advocate as provided under sections 113 and 114 of the Navy Act, 1957. It was, therefore, submitted that the mandatory procedure as prescribed under the Act was not followed and since that legal opinion expressed by the trial judge advocate is binding on the court-martial, they had erroneously proceeded to give the said finding that the accused was guilty of having committed the offence under section 304-B.

12. In order to appreciate the said submissions, it will be beneficial to notice a few provisions of the Navy Act and the duties of the trial judge advocate and the procedure which is followed during the court-martial.

13. Section 93 of the said Act lays down power of the court-martial and commanding officer to try the offences. Section 96 lays down the constitution and procedure of disciplinary courts and Section 97 lays down the constitution of court-martial. Section 99 lays down that every court-martial shall be attended by a person who shall either be a judge advocate in the department of the Judge Advocate General of the Navy or any fit person appointed by the convening officer. Section 113 lays down that it shall be the duty of the trial judge advocate to sum up in open Court the evidence for the prosecution and the defence and lay down law by which the Court is to be guided. Section 114 lays down the duties of the trial judge advocate wherein it has been specifically laid down that it shall be the duty of the trial judge advocate to decide all questions of law arising in the course of trial. Sections 99, 113 and 114 of the Act are reproduced hereinbelow.

"99. Trial judge advocate. - (1) Every court-martial shall be attended by a person (in this Act referred to as the trial judge advocate) who shall be either a judge advocate in the department of the judge Advocate General of the Navy or any fit person appointed by the convening officer.

Provided that in the case of a court-martial for the trial of a capital offence the trial judge advocate shall be a person nominated by the Judge Advocate General of the Navy unless such trial is held outside Indian waters.

(2) The trial judge advocate shall administer oath to every witness at the trial and shall perform such other duties as are provided in this Act and as may be prescribed."

"113. Summing up by the trial judge advocate. - When the case for the defence and the prosecutor's reply, if any, are concluded, the trial judge advocate shall proceed to sum up in open court the evidence for the prosecution and the defence and lay down the law by which the court is to be guided."

"114. Duties of the trial judge advocate. - (1) At all trials by court-martial it is the duty of the trial judge advocate to decide all questions of law arising in the course of the trial, and specially all questions as to the relevancy of facts which it is proposed to prove and the admissibility of evidence or the propriety of the questions asked by or on behalf of the parties; and in his discretion to prevent the production of inadmissible evidence whether it is or is not objected to by the parties.

(2) Whenever in the course of a trial it appears desirable to the trial judge advocate that arguments and evidence as to the admissibility of evidence or arguments in support of an application for separate trials or on any other points of law should not be heard in the presence of the court, he may advise the president of the court accordingly and the president shall thereupon make an order for the court to retire or direct the trial judge advocate to hear the arguments in some other convenient place."

From the aforesaid provisions, it is clear that there is a statutory obligation cast on the trial judge advocate to decide the questions of law and the same are binding on the court-martial as, ordinarily, they are not conversant with the legal provisions and, therefore, duty is cast on the trial judge advocate to decide at the trial all questions of law arising in the course of trial.

14. In the present case, submission which is made by the learned Counsel appearing on behalf of the Petitioner is that the trial judge advocate has failed in his duty in coming to the conclusion that the Petitioner had committed an offence under section 304-B then from the facts and circumstances of the case, it is clear that no such offence is made out.

15. It will be profitable to refer to section 304-B of the Indian Penal Code which reads as follows :-

"304-B. (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 s.2 of the Dowry Prohibition Act, 1961.

(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."

The Apex Court had an occasion to consider the provisions of section 304-B of the Indian Penal Code and section 113-B of the Evidence Act in the case of Shamlal Vs. State of Maharashtra reported in 1997(9) SCC 759 : [1997(3) ALL MR 481]. In the said case, the Apex Court came to the conclusion that the primary requirement for finding the appellant guilty of the offence under section 304-B of the Indian Penal Code is that the death of the deceased was caused by burns within seven years of her marriage and that "soon before her death" she was subjected to cruelty or harassment by the appellant for or in connection with any demand for dowry. The Apex Court held that as long as it is not proved that soon before her death the deceased was subjected to cruelty or harassment in connection with any demand for dowry, the provisions of section 304-B could not be invoked and that the legal presumption envisaged in section 113-B the Evidence Act would become applicable only if the deceased is subjected to cruelty and harassment in connection with dowry. Similarly, Division Bench of this Court in the case of Arjun Dhondiba Kamble and others Vs. State of Maharashtra reported in 1993 Mh.L.J. 1007 also held that where cruelty or harassment is not linked to the demand for dowry. Section 304-B will not apply. The Apex Court in the case of Shamlal (Supra) in paragraphs 9, 10, 11 and 12 has observed as follows :-

"9. The primary requirements for finding the appellant guilty of the offence under Section 304-B IPC are that death of the deceased was caused by burns within seven years of her marriage and that "soon before her death" she was subjected to cruelty or harassment by the appellant for or in connection with any demand for dowry."

"10. The first premise stands established in this case that the death of Neelam Rani took place within seven years of her marriage though the precise date of her marriage is not in evidence. (It is admitted by both sides that her marriage took place in the year 1983). The second premise that death was caused by burns is a factum which has not been disputed even by the appellant himself. In order to establish the third ingredient that "soon before her death she was subjected to cruelty or harassment for or in connection with demand for dowry", a plea is made to resort to the legal presumption envisaged in Section 113-B of the Evidence Act. It reads as under :

"113-B 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 has caused the dowry death."

"11. It is imperative, for invoking the aforesaid legal presumption, to prove that "soon after her death" she was subjected to such cruelty or harassment. Here, what the prosecution achieved in proving at the most was that there was persisting dispute between the two sides regarding the dowry paid or to be paid, both in kind and in cash, and on account of the failure to meet the demand for dowry, Neelam Rani was taken by her parents to their house about one and a half years before her death. Further evidence is that an attempt was made to patch up between the two sides for which a panchayat was held in which it was resolved that she would go back to the nuptial home pursuant to which she was taken by the husband to his house. This happened about ten to fifteen days prior to the occurrence in this case. There is nothing on record to show that she was either treated with cruelty or harassed with the demand for dowry during the period between her having been taken to the parental home and her tragic end."

"12. In the absence of any such evidence it is not permissible to take recourse to the legal presumption envisaged in Section 113-B of the Evidence Act. That rule of evidence is prescribed in law to obviate the prosecution of the difficulty to further prove that the offence was perpetrated by the husband, as then it would be the burden of the accused to rebut the presumption."

This Court in the case of Arjun (supra) in para 6 observed as under :-

"6. The conclusion irresistible is that Lalita committed suicide by her throwing herself in the well from where her corpse was fished out. The crucial question is whether this could be termed as a "dowry death" within the meaning of section 304-B. Sub-section (1) of this section together with the explanation reads as follows:-

304-B. (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 purpose of this sub-section "dowry" shall have the same meaning as in s.2 of the Dowry Prohibition Act, 1961 (28 of 1961)"

In Act No.28 of 1961, section 2 defines "dowry" as.

"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 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."

"Annappa and Shila speak of Lalita complaining on every visit after the marriage that the appellants were pressing her for a gift of gold and wrist watch. Mr Mundargi argues that this allegation is unbelievable, seeing that both the families come from poor backgrounds, that the marriage itself was performed at an inexpensive mass marriage ceremony and that any marriage so performed could not have led to an expectation on the part of the husband or his parents for valuable presents from the side of the bride. Dowry in the sense of that expression contemplated by Act 28 of 1961 is a demand for property or valuable security having an inextricable nexus with the marriage. In other words, it is a consideration from the side of the bride's parents or relatives to the groom or his parent and/or guardian for the agreement to wed the bride-to-be. Where the demand for property or valuable security has no connection with the consideration for the marriage, it will not amount to a demand for "dowry". In the instant case, the evidence has to be properly understood and thus viewed it is clear that what the appellants wanted was valuable presents to be made to appellant Mahadeo on the occasion of festivals like Deepavali. Judicial notice can be taken of the fact that the presents are customarily given to sons in-law on festive occasions and giving of such presents is in no way connected with the wedding or marriage. It is a post marriage expectation and the expectation and performance thereof once restricted to the affluents and the middle class, has now spread its tentacles to the poor also. The expectation is because of the relationship, but without any nexus to the agreement to marry. Therefore, it down not amount to "dowry". Any demand for presents after the marriage but not having a connection with the marriage of the parties will not constitute demand for "dowry". This is clear from the qualifying clause of section 2 in Act 28 of 1961 reproduced above. Cruelty and harassment by a husband or a relative of the husband which brings about unnatural death of the wife within 7 years of her marriage is to be taken into consideration for "dowry deaths" punishable under section 304-B. But the said cruelty or harassment is not that understood in common parlance. It is a special type of cruelty or harassment, in that it is linked to a demand for "dowry". Where it is not so linked, Section 304-B will not apply. A demand on the part of the husband or a relative of the husband for property after the marriage in conformity with the custom spoken of above, cannot be said to be a demand for "dowry". The wife, if disgusted at the constant pressure for the customary presents takes her life, that death cannot be said to be a "dowry death". The husband and/or his relative though guilty of cruelty or harassment in the popular sense, will not be guilty of that cruelty or harassment having a nexus with a demand for "dowry" which is the sine qua non for attracting section 304-B, Indian Penal Code. Disagreeing with the learned trial Judge, we hold that the appellants are not guilty under section 304-B read with section 34 of the Indian Penal Code."

In the light of the ratio laid down by the Apex court and this court in the cases referred to above, we will have to see whether there is any evidence regarding demand of dowry in the present case. Neither in the first dying declaration nor in the second dying declaration, the deceased had made any allegation that there was any demand of dowry. In fact, it has come in evidence that the Petitioner had not demanded dowry at the time of marriage and no dowry, in fact, as a result, was accepted by him at the time of marriage. Neither the mother of the deceased nor her sister has alleged that there was demand of dowry. Her sister has stated in her evidence that there was no demand of dowry at the time of marriage. The letter which was written by the deceased to her younger sister and mother which is at Exhibit D-3, A and B also does not talk of any demand for money. The mother of the deceased in her cross-examination has admitted that the accused had not demanded dowry at the time of marriage of her daughter. In fact, none of the witnesses which was examined has stated that the Petitioner had demanded dowry or had treated the deceased with cruelty because dowry was not paid. On the other hand, material witnesses have stated that the Petitioner was addicted to alcoholic drinks and, as a result, never used to pay any money to his wife for household expenses and because of his drinking habits, the wife had suffered mental torture and harassment. Some of the witnesses have stated that the accused used to take drinks and used to beat his wife. Even P.W.18 Miss Vijaya Balekundri also has admitted in her cross-examination that in the letter - Exhibit P-15 which was written by deceased Padma, she had not talked about demand for money. She has, however, stated that the deceased used to ask for money from her mother and her mother used to send money to her by money order. This evidence, in our view, therefore does not indicate that the accused, soon after the marriage, had treated his wife with cruelty on account of demand of dowry. In our view, the trial judge advocate has erred in his summing up for the benefit of the President and the members of the court-martial which is evident from para 29. While summing up the case for the benefit of members of the court-martial, the trial judge advocate has observed as follows:-

"29. In establishing a charge u/s 304-B. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates." (Emphasis supplied)

In our view, therefore, the trial judge advocate had clearly erred in summing up the legal position because what is contemplated under section 304-B is that soon after the marriage her husband had treated the wife with cruelty or harassment for the purpose of demand of dowry. The trial judge advocate appears to have wrongly interpreted the said provision and informed the members of the court-martial that even after cruelty and harassment is proved soon after the marriage and death has occurred then the provisions of Section 304-B would be attracted. In our view, therefore, the trial judge advocate has clearly erred in summing up the legal position is respect of the offence under section 304-B which is alleged to have been committed by the Petitioner. The members of the court-martial have to rely on the opinion given by the trial judge advocate on legal matters and, therefore, on the said basis they have come to the conclusion that the Petitioner has committed an offence under section 304-B. In our view, looking at the evidence on record and the written summing up by the trial judge advocate, it is evident that the trial judge advocate has committed an error of interpretation of section 304-B and, therefore, has not performed his statutory obligation which is imposed upon him under the said Act. In this view of the matter, the conviction of the accused under section 304-B will have to be set aside.

16. However, though the conviction under section 304-B has been set aside that would not absolve the Petitioner from the conviction which is imposed by the members of the court-martial under section 498-A of the Indian Penal Code. In the present case, there is ample evidence to show that the Petitioner had harassed his wife - deceased Padma and had treated her with cruelty which is evident from the evidence of number of witnesses and, therefore, the Petitioner cannot save himself from the offence under section 498-A for which there is an overwhelming evidence. From the perusal of section 498-A, it will be clear that the section takes within its sweep all types of cruelties which may not be connected with demand of dowry. Thus, in our view, the conviction under section 498-A will have to be confirmed. So far as the dismissal from the service of the Petitioner is concerned, this Court does not propose to interfere with the Order passed by the court-martial and confirmed by the Appellate Authority in view of the ratio laid down by the Apex Court in catena of cases.

17. In the result, Writ Petition is partly allowed. The Order of the court-martial and the Judicial Review of Trial by the court-martial by the Chief of Naval Staff is confirmed in respect of dismissal of service of the Petitioner. However, the conviction in respect of the accused under section 304-B of the Indian Penal Code is set aside and the Petitioner is convicted under the provisions of section 498-A of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for a period of three years. Petitioner has already undergone the said sentence as he is in Jail for more than three years and, therefore, he is directed to be released forthwith unless he is otherwise required in any other case.

Writ to be issued forthwith.

Parties to act on the copy of this order duly authenticated by the Sheristedar of this Court.

Petition partly allowed.