Criminal Appeal No.584 of 2013

11th September, 2015.

Petitioner Counsel: Mr. R.M. DAGA
Respondent Counsel: Mr. V.A. THAKARE

Cases Cited:
Major Singh & Anr. Vs. State of Punjabq, 2015 ALL SCR 2482=(2015) 2 SCC (Cri) 201 [Para 14,24]
Hira Lal & Ors. Vs. State (Govt. of NCT) Delhi, 2003 ALL MR (Cri) 1784 (S.C.)=(2003) 8 SCC 80 [Para 16,24]

JUDGMENT

JUDGMENT :- The present appeal is directed against the judgment and order of conviction passed by the learned Additional Sessions Judge, Buldana, in Sessions Case No. 153 of 2011 on 20.11.2013, thereby convicting the present appellant for the offence punishable under Sections 304B of Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years. By the said judgment and order, the appellant is also convicted of the offence punishable under Section 498-A of Indian Penal Code, however no separate sentence was imposed on that count. The appellant is also convicted of the offence under Section 3 punishable under Section 4 of Dowry Prohibition Act, 1961 and directed to suffer rigorous imprisonment for six months and to pay fine of Rs.2000/-, in default to suffer simple imprisonment for fifteen days.

2. The prosecution case, in nut shell, is as under :

P.W.1 Sunil is the first informant. He lodged a complaint with police station Dhad on 14.10.2011 (Ex.49). Since the said complaint was disclosing commission of a cognizable offence, a crime was registered vide Crime No. 70/11 against the appellant, Pramila w/o Ramu Kapse, Ramu Sakharam Kapse, Sau. Lata w/o Baburao Dhanve and Baburao Ramkrushna Dhanve for the offences punishable under Sections 304-B and 498-A read with Section 34 of Indian Penal Code and under Sections 3 and 4 of Dowry Prohibition Act. The printed proforma of F.I.R. is at Ex.52.

3. The first information report discloses that the first informant Sunil (P.W.1) is resident of Ahmednagar. He is in the business of selling compact disc (CD) on hand cart. His family consists of his mother Sushilabai (P.W.5), his wife Triveni (P.W.3) and daughter Vaishnavi. The first informant has three sisters. They are (i) Sujana @ Sarla, (ii) Manisha and (iii) Ranjana.

Sujana is the eldest sister of first informant. Her marriage was performed with the appellant on 31.7.2011. At the time of her marriage, she was 35 years old. His other two sisters Manisha and Ranjana are also married. P.W.4 Sanjay Irmal is husband of Manisha.

4. As per first information report, due to intervention of accused Lata Dhanve and her husband, marriage of deceased Sujana @ Sarla was fixed with the appellant in the meeting held in the house of Dhanve. Pramila Kapse is the sister of the appellant whereas Ramu Kapse is her husband. It is stated in the first information report that the first informant had agreed to give an amount of Rs. One lac at the time of marriage. However, at the time of marriage, which was performed at Markandey Mandir, Karanja Chowk, Ahmednagar, he gave Rs.45,000/- to the appellant. It is further stated that the remaining amount was agreed to be given by the first informant to the appellant within a period of one month.

5. After the marriage, Sujana @ Sarla went to her matrimonial house at Buldana. After ten days, he received a phone call on his cell that since three days the appellant is ill-treating her on account of remaining amount. It is also stated in the first information report that the deceased disclosed on the said telephone call that sister of appellant, Pramila and her husband Ramu, were also instigating the appellant and ill-treating her. Therefore, on the next day itself the first informant and his mother Sushilabai went to Buldana and gave a word of advice to the appellant and assured him to give the remaining amount within a period of 15 days and thereafter they returned to Ahmednagar.

6. Thereafter Sujana @ Sarla came to Ahmednagar for the festival of Rakshabandhan. She stayed till Pola. During this period, as per the first information report, she reiterated that she is having ill-treatment at the hands of the appellant, his sister and husband of his sister. Next day after Pola, the first informant and his mother reached Sarla to her matrimonial house.

7. On 20.9.2011 Sanjay Irmal (P.W.4) received a phone call from Lata Dhanve that Sarla has died due to drowning in the well. The said fact was transmitted to the first informant by Sanjay (P.W.4). Therefore, they went to Buldana.

8. On 14.10.2011 the first informant lodged a report with police station Dhad that due to ill-treatment on account of demand of money, his sister Sarla has committed suicide by jumping into the well.

9. Rakesh Mangaonkar (P.W.7) was attached to police station Dhad, as Assistant Police Inspector On 14.10.2011 Sunil (P.W.1) came to the police station and lodged his written report. On 15.10.2011 he visited the spot of incident and drew spot panchanama (Ex.54). He arrested the accused persons and recorded the statements of parents, sister and brother of deceased and also the statement of husband of deceased. Upon completion of usual investigation, since the Investigating Officer was of the view that sufficient material is collected for sending the accused for trial, he filed charge-sheet before the Court of law.

10. After passing the necessary committal order, the case reached to the Court of Sessions, Buldana. It was made over to the file of Additional Sessions Judge, Buldana and was numbered as S.T.No. 153/11. Below Ex.35, the learned Additional Sessions Judge framed charge against the appellant and four others named in the F.I.R. for the offences punishable under Sections 304B and 498-A read with Section 34 of Indian Penal Code and also under Sections 3 and 4 of Dowry Prohibition Act, 1961. All the accused persons abjured their guilt and claimed their trial.

11. In order to bring home the guilt of the accused persons, prosecution has examined in all seven witnesses and also relied upont he documents proved during the course of the trial.

12. The learned Additional Sessions Judge after appreciating and evaluating the prosecution evidence found that the charge has brought home only against the appellant and, therefore, he convicted him and sentenced him, as stated in the opening paragraphs of this judgment, and acquitted the remaining accused. Hence, this appeal.

13. I have heard Shri R.M. Daga, learned counsel for the appellant and Shri V.A. Thakare, learned A.P.P. for the State. Both the learned counsel detailed their submissions on the basis of available evidence in support of their respective prayers. With their able assistance, I have gone through the record and proceedings of the Court below.

14. The evidence of the prosecution has to be appreciated in the light of the principles laid down in Major Singh & anr. v. State of Punjab reported in (2015) 2 SCC (Cri) 201 : [2015 ALL SCR 2482]. In the said judgment, the Hon'ble Apex Court has ruled that to sustain conviction under Section 304-B IPC, following essential ingredients are to be established :

(i) the death of a woman should be caused by burns or bodily injury or otherwise than under a 'normal circumstance';

(ii) such a death should have occurred within seven years of her marriage;

(iii) she must 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 demand of dowry; and

(v) such cruelty or harassment is shown to have been meted out to the woman soon before her death.

15. In the present case, since the charge against the appellant is for dowry death, there is a presumption under Section 113-B of Evidence Act. Section 113-B of Evidence Act 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 has 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 304-B of the Indian Penal Code (45 of 1860). It is imperative to note that both these sections set out a common point of reference for establishing guilt of the accused person under Section 304-B IPC, which is "the woman must have been 'soon before her death' subjected to cruelty or harassment 'for or in connection with the demand of dowry'".

16. In the case of Hira Lal & ors. v. State (Govt. of NCT) Delhi reported in (2003) 8 SCC 80 : [2003 ALL MR (Cri) 1784 (S.C.)] the Apex Court, in paragraph 9, held as under :

"A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before the death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "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. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. ....." (emphasis supplied)

17. Keeping the aforesaid principle in mind, let us scrutinize and analyse the prosecution evidence.

As per the first information report, at the time of marriage deceased was aged about 35 years and with the intervention of co-accused her marriage was performed with the appellant.

Except the bare word, there is no corroborative evidence to show that Rs.45,000/- were paid to the appellant at the time of his marriage. According to the prosecution, Sarla was subjected to cruelty at the hands of the appellant and other co-accused persons within a short span of her marriage. This fact was disclosed by the deceased on the cell-phone of Sushila (P.W.5). P.W.1 Sunil also claimed the said fact to him. The said phone call was in respect of disclosure of beating and ill-treatment at the hands of the appellant to the deceased. P.W.1 Sunil is candid enough to state from the witness-box that the deceased had a talk with them form the cell-phone of appellant. That fact shows that the cell-phone of appellant was easily available to the deceased. The call was made within a period of 8-10 days of marriage and during this period she was subjected to severe ill-treatment. If really she was subjected to such degree of ill-treatment at the hands of the appellant, she would not have missed in stating to her brother and mother that she is making the phone call stealthily, and if such information was made to them these two prosecution witnesses would not have failed to narrate the said fact from the witness-box. Upon non-disclosure of such important aspect, one can reach to the conclusion whether really a phone call was made to them.

18. F.I.R. is not a substantive piece of evidence. It can be used for corroboration or for contradiction. The prosecution is obliged to prove the assertion of facts made in the F.I.R. by adducing evidence in that behalf.

In the F.I.R. it is asserted that after getting the information about the ill-treatment on cell-phone on the next day immediately both Sunil (P.W.1) and Sushilabai (P.W.5) rushed to Buldana to give a word of advice to the appellant. However, their evidence is completely silent about their visit to Buldana on the next day of receipt of telephonic call from the deceased. Thus, importance cannot be attached to the said assertion made in the F.I.R.

If really the phone call was received by these two prosecution witnesses in respect of the ill-treatment, their natural reaction would have been to rush to Buldana. From their evidence it is clear that they went to Buldana after a day of Pola. On the contrary, P.W.1 Sunil has stated in his evidence that since the performance of marriage till the festival of Rakshabandhan, he or his mother had not at all gone to Buldana. In that view of the matter, there is no corroborative evidence to suggest that after 8-10 days of her marriage, deceased made a phone call to her brother and narrated the happenings to her in her matrimonial house.

19. It is an admitted position that for the festival of Rakshabandhan the deceased had come to her parental house at Ahmednagar. The said Rakshabandhan was her first festival after her marriage and, therefore, her visit to her parental house was most natural. What is important to note is that from Rakshabandhan till Pola she was residing in her parental house. Thus, she resides there for about 15 days as festival Pola falls after 15 days of Rakshabandhan. According to prosecution, deceased was reached to her matrimonal house by P.W.1 Sunil and P.W.5 Sushilabai.

No exception can be taken for reaching deceased to her matrimonial house by her brother and her mother. Since the visit of deceased to her parental house on the occasion of Rakshabandhan was her first visit after her marriage, normally the elderly members from the parental family were expected to reach the deceased to her matrimonial house.

20. The evidence of the prosecution shows that from 14.8.2011 to 29.8.2011, i.e. from the date of Rakshabandhan till Pola, the deceased stayed at Ahmednagar. Therefore, there was no occasion to receive ill-treatment at the hands of the appellant during the said period. Further, none of the prosecution witness has claimed that during this period they received any telephonic call from the appellant demanding money and or any threat to them that if the amount is not paid, the deceased should not reach to his house.

21. Sunil (P.W.1) has stated in his evidence as under:

"After the Pola festival till the death of Sarla she had not written a letter to us nor talked on phone."

Even the aforesaid version is reiterated by P.W.3 Triveni, wife of P.W.1 Sunil. Not only that Triveni has admitted in her evidence that after reaching Sarla to her matrimonial house after Pola they had not made any enquiry about her matrimonial life. If the prosecution case in respect of ill-treatment is to be believed then it would have been most natural thing on the part of the prosecution witnesses, who are the close relatives of the deceased, to know about her status after she went to her matrimonial house from their place.

22. Further, though P.W.4 Sanjay Irmal, the brother-in-law of deceased, claims that when his sister-in-law, another sister of deceased by name Ranjana, was at his house she received a telephonic call from deceased Sarla about her ill-treatment. Ranjana is not examined by the prosecution. Further, presence of Ranajna at the house of Sanjay (P.W.4) and receipt of telephonic call by her is an improvement.

23. The date of incident is 20.9.2011. However, the F.I.R. is lodged on 14.10.2011. Thus, there is inordinate delay in lodging the F.I.R. The prosecution case cannot be thrown into dust bin merely because there is a delay. The delay can be well explained.

24. From the evidence of P.W.1 Sunil it is clear that when he along with his relatives went to Civil Hospital, Buldana, police were present there. If really the suicide was due to the unbearable ill-treatment, on noticing the law enforcing agency it would have been the first reaction on the part of Sunil to narrate the happenings to his sister to the police. On the contrary, he has deposed as under :

"Due to death of my sister within two months after marriage, we were in grief and annoyance."

Even Sushila (P.W.5) has also stated as under :

"After a short time of marriage, Sarla expired. Therefore, I had anger."

Thus, it is absolutely clear from the aforesaid evaluation of evidence that prosecution has miserably failed to prove the receipt of telephonic call from deceased narrating the ill-treatment to the prosecution witnesses. Further, there is no evidence on record to show that after reaching to the matrimonial house after Pola festival, there was any ill-treatment to the deceased to attract the presumption. Thus, in my view, the prosecution has utterly failed to bring home the guilt of the appellant on the touch stone of law laid down by the Hon'ble Apex Court in Hira Lal, [2003 ALL MR (Cri) 1784 (S.C.)] and Major Singh, [2015 ALL SCR 2482], supra. In my view, the prosecution has utterly failed to prove that the deceased committed suicide due to ill-treatment meted out to her. Merely because the deceased has committed suicide, in absence of any cogent and reliable evidence, one cannot reach to the conclusion that she committed such act because of ill-treatment at the hands of the appellant. That leads me to pass following order.

ORDER

(i) Criminal Appeal is allowed.

(ii) Judgment and order of conviction passed by the learned Additional Sessions Judge, Buldana, on 20.11.2013 in Sessions Trial No. 153 of 2011 are hereby quashed and set aside. The appellant is acquitted of the offences with which he was charged.

(iii) The appellant, who is in jail since 20.10.2011, be set at liberty forthwith, if not required in any other case.

(iv) Fine amount, if any paid, be refunded to him.

Appeal allowed.