1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 53 OF 2010 The State of Maharashtra ...Applicant Versus 1 Suryakant @ Pintya s/o Uttamrao Ware Age 25 years, 2 Uttamrao s/o Yalaji Ware, Age 55 years, 3 Babanbai w/o Uttamrao Ware, Age 50 years, 4 Savita w/o Balu Magre, Age 22 years, All R/o. Khamgaon, Taluka Georai District Beed ...Respondents ..... Mr. N.R. Shaikh, A.P.P. for the applicant Mr. S.S. Thombre, advocate for respondents ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATE OF RESERVATION OF ORDER : 02.08.2010 DATE OF PRONOUNCEMENT OF ORDER : 05.08.2010 ORDER 1 The State has filed this application seeking leave to file appeal against the judgment and order dated 25.8.2009, passed in Sessions 2 case No. 19 of 2007 by learned Additonal Sessions Judge-1, Beed thereby acquitting the respondents herein for the offences punishable under Sections 498-A, 304-B r.w. 34 of I.P.C. 2 It is the case of the prosecution that the respondents i.e. original accused subjected deceased Priyanka to cruelty on account of unlawful demand of Rs.50,000/- for purchasing motorcycle and the said cruelty was of such a nature which had forced her to commit suicide. All the respondents were tried for the commission of the offences punishable under section 498-A, 304-B and 306 of I.P.C. The prosecution claims that the marriage between Suryakant and Priyanka was solemnized prior to about 2 years of her death and at the time of incident she was cohabiting at the house of the respondents. One Ashok Dashrath More, father of deceased Priyanka lodged a complaint with police station Beed on 16.1.2006 alleging that he received telephonic message on 16.1.2006 from his daughter Priyanka and therefore, he alongwith his wife Indubai had been to village Khamgaon to meet Priyanka. Priyanka made a grievance that her husband Suryakant, father-in-law Uttamrao, mother-in-law Babanbai and her husband’s sister Savita were insisting her to bring Rs.50,000/- from her parents for purchasing motorcycle and were illtreating her on that count. The complainant therefore, convinced the accused persons and requested them not to illtreat her and alongwith his wife he left Khamgaon. 3 In the evening, the complainant Ashok received telephonic message from Khamgaon that Priyanka was admitted in Civil Hospital Beed in burnt condition. The complainant and his wife immediately rushed to the Civil Hospital Beed and interrogated Priyanka. Priyanka told them that the accused persons abused and beat her on the ground as to why she called her parents and therefore, being fed up with the illtreatment, she poured kerosene on her person and set herself ablaze. 3 On the basis of the said complaint, the police investigated into the matter, registered crime bearing C.R. No.217 of 2006 for the offences punishable under sections 498-A, 306 r.w. 34 of I.P.C. During the course of medical treatment, two dying declarations of Priyanka came to be recorded, one by A.S.I. and another by Executive Magistrate. The dying declaration which is recorded by A.S.I. in which deceased Priyanka stated that her mother-in-law and her husband’s sister used to quarrel with her on the ground that she was not going to the field for work and they were illtreating her on the ground that after her death they may receive dowry worth Rs.50,000/-. From perusal of the dying declaration it appears that deceased Priyanka, though has mentioned the names of husband and father-in-law but no specific act is attributed to them. 4 4 The trial court, after appreciating the evidence brought on record and after hearing both the sides, acquitted the respondents. While acquitting the respondents the trial court has recorded finding that there are two dying declarations which do not inspire confidence and they are not consistent in material particulars. So far as demand of dowry is concerned the learned Judge has recorded that there is no mention of demand of dowry by Priyanka in her both the dying declarations. On appreciation of evidence, the trial court found that the evidence, which is brought on record in support of contention of the prosecution that there was demand of dowry, is not sufficient to convict the respondents. Therefore, the trial court recorded the acquittal of the respondents. 5 Learned A.P.P. appearing for the applicant-State strenuously contended that in both the dying declarations name of respondents have been mentioned. Both the dying declarations are consistent and therefore, the trial court has not appreciated the dying declarations in their proper perspectives and discarded the evidence in the nature of dying declaration. It is further submitted that the definition of dowry under Section 2 of the dowry Prohibition Act is wide enough even to cover the demand made subsequent to the marriage. Learned A.P.P. further submitted that it has come in the evidence of prosecution witnesses that there was demand of dowry and therefore, learned A.P.P. would submit that matter requires consideration and 5 prosecution has established the case for filing appeal against the acquittal of the respondents. 6 Learned counsel appearing for the respondents, submits that there was inordinate delay in filing the F.I.R. Both the dying declarations are not consistent. The prosecution has utterly failed to establish the demand of dowry. The prosecution has not examined the material witnesses and there is no corroboration with other evidence to accept the prosecution case, therefore, there is no infirmity in the impugned judgment and order passed by the trial court. Learned counsel, in support of his contention that the definition of word “dowry” only includes any demand, if it is agreed either before marriage or at the time of marriage and therefore, any subsequent alleged demand would not fall within the definition of dowry. Therefore, learned counsel would submit that in the facts of this case, the judgment of the Apex Court in the case of Appasaheb and Anr. Vs. State of Maharashtra, reported in AIR 2007 SC 763, is squarely applicable. 7 We have heard learned A.P.P. for the applicant-State and the learned counsel for the respondents at length. We have also perused the impugned judgment. We have also considered the evidence which are brought to our notice. We have also carefully perused the 6 statements of the witnesses and two dying declarations of Priyanka. Though, it is contended by learned A.P.P. that case in hand is covered under Section 304-B, we are not impressed by the submission of the learned A.P.P. If entire prosecution case is taken into consideration, we find that no sufficient evidence is brought on record by the prosecution so as to sustain the conviction under Section 304-B of I.P.C. Since we are not inclined to grant leave to prefer appeal against two respondents, we refrain ourselves to make further comments on the merits of the case. 8 On careful perusal of two dying declarations of Priyanka, it clearly emerges that in both the dying declarations, deceased Priyanka has specifically named her mother-in-law, respondent No.3 Bababai w/o Uttamrao Ware and her husband’s sister, respondent No.4 Savita w/o Balu Magre. Though the names of other two accused i.e. husband and father-in-law are mentioned, on careful scrutiny, we do not find any specific role attributed to them. As already stated, since we are inclined to grant leave to prefer appeal against respondent No.3 Babanbai and respondent No.4 Savita, we are not making elaborate observations on merits of the case. Suffice it to say that in both the dying declarations, specific act is attributed towards Babanbai Uttamrao Ware and Savita Balu Magre. Therefore, so far as these two respondents i.e. respondent Nos. 3 and 4 are concerned, the prosecution has established case for filing appeal. 7 9 As already stated above, in so far as respondent Nos. 1 and 2 are concerned, we do not find sufficient reasons to interfere in the acquittal recorded by the trial court. In case of respondent No.1 Suryakant and respondent No.2 Uttamrao, the trial court after appreciation of entire evidence brought on record, has acquitted them. The possible view has been taken by the trial court in respect of respondent Nos. 1 and 2. We do not see any perversity so as to interfere in that part of the judgment and order. However, as stated earlier, we are inclined to grant leave to prefer appeal in so far as respondent No. 3 Babanbai w/o Uttamrao Ware and respondent No.4 Savita w/o Balu Magre. 10 In the result, criminal application is partly allowed. Leave to file appeal under Section 378(1) (b) of Cr.P.C. is granted in favour of the applicant-State as against respondent No.3 Babanbai w/o Uttamrao Ware and respondent No.4 Savita w/o Balu Magre. In so far as respondent No. 1 Suryakant @ Pintya s/o Uttamrao Ware and respondent No.2 Uttamrao s/o Yalaji Ware are concerned, the application seeking leave to prefer appeal under Section 378(1) (b) of Cr.P.C. is refused and to that extent the application is rejected. 11 This application to be treated as Criminal appeal and be registered accordingly. We therefore, direct action under Section 390 8 of Cr.P.C. to be initiated against respondent No.3 Babanbai w/o Uttamrao Ware and respondent No.4 Savita w/o Balu Magre. They shall be arrested and released on P.R. bond of Rs.15,000/- with one surety each in the like amount by Additional Sessions Court, Beed. The Additonal Sessions Judge, Beed, to secure the presence of the respondents once in six months. Such period shall commence from 16.8.2010. ( S. S. SHINDE. J.) (S.B. DESHMUKH, J.) rlj/