@ nngle Bench Criminal) ( r N THE HIGH COURT O! JUDICATURE AT JABALPUR W I CRIMINAL APFEAL No 31"“ OF 1§§8 ) CRIMINAL APPEAL UNDER SECTION 374 (2 OF THE CODE 6F CRIMmAL PROCEDUREa 1973. Bhagwat Sahu, Aged 25 years S/o Baisa Sahu, R/o Vill. Laripara, hherka Bandba ‘ Distmct BILASPUR (m) w ' VERSUS APPELLANT, n a Staté of Madhya Pradesh Through P S. Kota mstrict BILASPUR (m RESPONDENT "ysms£ 32mm AAVOCBte M— RMP. CONVICIION SENTENCE h ‘ ’l‘w / (I Ji 15 ) g win coun‘r OF cHHAmsgR AT BILASPuR (Hon. Mr. Justice Pritinker Diwakér) Criminal Appeal No. 2416 of 1998 w ‘ BhagWat Sahu x W lg A R§$P0NPENT State of Madhya Pradeshm a] VERSUS Shri R. S. Mamas, counse! for the appeiiant. Shri Neeraj Mehta, PL for the State. 1‘ w ‘4 x' 'x 'n 4 ;I u P G M E N T (23.01.2011) L C x The present appeai arises out of the judgment and crder .dated 25.09.1998 passed by Second Additiona! $essions Judge, Bilasp'ur in Sessions Trial No.- 184/1997 convicting the accused/appeiiant for the offence under sections 304—8 read With Section 34 of IPC and sentencmg him to undergo 1 rigorous Imprisonment for seven years. 2. Brief facts of the case are that the appeliant is the husband of the deceased Gayatri Bai and their marriage was soiemnized sometime in the year 1994 and Gouna ceremony took piace in the year 1995 0n 11 4 1996 at about 9 a m the deceased Gayatri Ban suffered 100% burn inJuries and on that day Itself died while she was being taken to‘the hospital On 11.4.1996’Merg intimation Ex. P—8 was given by Baisakhu, father of theaccused/appellant. On 23.04.1996 a Vwritten report (Ex. ‘P—S) was made by Dhani Ram Sahu (PW-3)-the father of the deceased and GangarPrasad (PW—6i to the Collector making ailegation of demand of dowry and cruelty against the accuse/appeilant and his mother & father, After enquiry FIR Ex.P—12 was registered on 12.06.1996 against t H ‘ , _g’ the accused/appellant and his-mother (Khelan Bai) and father (Baishakhu) under Section 306/34 of IPC and thereafcer on 29.06.1996 the case diary statement of the witnesses was recorded. However, the challan was filed on 27.07.1996 only ' against the accu‘sed/appeliant and his mother Khelan Bai for the offence under Section 306/34. 3. So as to hoid the accused persons guilty, prosecution hasexamined 08 witnesses in support of its case. Statements of the accused persons were aiso recorded under section 313 s of the Code of Criminal Procedure in which they denied the I charges levelled against them and pleaded their innocence and false implication in the case. Apart from this, one witness. namely Nirmala (Dw-l) has also been examined by the defence in support of its case. However the Court below framed charge against the accused persons under Section 304-3134 of IPC. 4. After hearing the parties the trial Court has acquitted the co-accused Khelan Bai, mother of the appellant of the. offence under Section 304—3 read with Section 34 of IPC but convicted and sentenced the accused/appellant for the said" offence. 5. Contention of the leamed counsel for the appellant is that there is an inordinate delay of 12 days in iodgingthe' FIR as the incident had taken place on 11.04.1996 whereas the written report has been lodged on 23.04.1996 and there isno reasonable explanation for this inordinate delay... He further submits that the appellant has been convicted on the basis“ of the statement of Dhaniram» (PW-3), Shupawara Bai (PW-4), Jhhunil Bai (PW-5) ahd Ganga Prasad Sahu (PW-6) whereas if the evidence of these witnesses is taken into consideration, ' the offence under section 304-8 of IPC is not made out. . He -3; submits. that most of the witnesses have improvedjheir version before the Court and have stated cantrary t0 their case diary statement and when they were confronted, they have admitted the same and even the Investigating Officer has also admitted this fact. He submits that there is no evidence on record to show that soon before death; the deceased was subjected to crueityr or harassment by the appeiiant. He further submits that the appellant and the . deceased both belong to very poor family and the appellant . had demanded Rs.5,000 for his business and the same would not amount to dowry as defined in Dowry Prohibition Act. §Qt 6. 0n the contrary supporting the impugned judgment it ' has been argued by the learned counsel for the 5tate that the deceased was subjected to cruelty to the extent where she ~ was left to no other option but to commit suicide by setting herself ablaze. He submits that had the deceased not been subjected to torture or cruelty there‘was no reason to end her life. He further submits that as per the statement of Dhani Ram (PW-3) and Jhhunii Bai (PW-5) it is apparent that the appellant has committed the offence under section 304-B-of IPC. \§ 7. Heard counsel for the parties and perusedthe material v available on record including the judgment'irnpugned. . “(J/ 8. Ramkusal (PW-1) who is an inquest witness and in village relation the maternal uncle‘of the deceased has not made any allegation against the accused/appellant. Dr. A. K. Shrivastava (PW—2) who along'with Dr. S. K. Shrivastava had performed the post mortem of the deceased and given his report Ex.P-4. According to him-the cause of death of the deceased is asphyxia due to smoke. i 44-— Dhani Ram (PW-3) - father of the [deceased has stated that the marriage of the deceased was solemnized with the appeuant in the year 1994 and about one year after their marriage, Gouna ceremony took place After Gouna- the deceased was resrdmg in her in iaws house along with her husband ,(accused/appeiiant), mother-Inelaw Khelan Bai, father—in-iaw Baisakhu Ram and two younger sisters and one brother of the appeiiant. Before death the deceased used'to visit his house and vice-versa. After about six months from Gouna ceremony, when he-was working as mason in the village Gondaiya, the accused/appellant came to him by saying that he would work with him and his daughter also came there following the accused/appeiiant and said that she would live with the accusedlappellant wherever he lived and then this witness convinced them not to work with him and send them back to their village by saying that he would not allow his daughterto work and would give their expenses. At v the time of Ratanpur fair the deceased had informed him that she was beaten by the accused appellant on account of some I family dispute thereafter he did a ready-made clothes busmess along With the appellant. At the time of Kota fair when he gave ready-made clothes to the appellant he had refused to keep the same. He has stated that after about 10 days the deceased came to him and said that the appellant was demanding Rs. 5,000 for business for which he gave Rs.1400 and thereafter about a week she died on account of bum injuries. He has further stated that at the timevof inquest he was present and signed on Ex.P-6. At’this stage, this witness was declared hostile. In cross-examination this witness admits that only once the accused/appellant had‘ demanded Rs. 5,000 for his business and he had given ‘ Rs.1400 to him. He admits that whenever the deceased fell sick it was the accused/appellant who got her treated. This \k ..§"- witness admits‘that his case diary statement was recorded by the poiice in which he has stated that he never heard about any harassment or cruelty meted out to the deceased by the appenant nor somebody eise informed the same to him. Shukhwara Bai (PW-4) the neighbour of Dhaniram in her Court statement has stated that her house is adjacent to the house of Dhaniram (PW—3) and about a week before her death when the deceased came to her house, she r‘had infomed her that the accused/appellant used to beat her by demanding money. In her case diary statement this witness has stated that the deceased had informed her that her husband was demanding a bicycle and money and used to ask it her not to go out because he was having some doubt towards her. Jhhunii (PW-5) - the mother of the deceased has stated that on the eve of Nawratri the deceased had informed her that the accused persons Were demanding T.V and watch and the accused/appellant was demanding Rs.5,000 'for business; She has further stated that the acquitted accused Khelan. Bai \ used to harass the deceased for bringing dowry. There appears to be material contradictions in the statement ef this witness from that of 161 Cr.P.'C. statement because in her ’ case diary statement he has not made any ailegation of a demand of dowry. ‘Ganga Prasad (PW—6) - the'unele of the deceasedhas stated that at the time of festival the deceased and the ’ accused/appellant came to the house of his brother and when; they were going back he asked her as to why she did not“ come to his house to which the deceased had informed: him that her husband did not allow her to go anywhere and thereafter she returned. He has stated that later on the deceased had informed her‘mother and father about the ill treatment given to her by the accused/appellant. He came to ‘Jy« 4-6v‘ know that the deceased never work and used to sit at her.“ house and therefore the appenant used to beat her and the- appellant had demanded money fram the father of the - dECeased t0 Start his business. In his 'CFOSS-examinatiOn hef - , .admits that he had met the deceased in the month of January ' and thereafter he did not meet herd and she died in the month of April. . Though this witness is the iodger of the written report Ex.P-5 but has not stated anything about the same. J. *L. Lakda (PW-7) is the Assistant Sub-Inspector who has done the part: of investigation. B. P. Pandey (PW-3) -‘ the Investigating Officer has supported the prosecution case but _ he has also admitted the fact that father of the deceased had ,- not infom'ied him about demand of any dowry and crueity meted out by the appellant to the deceased. \§ . Minute examination of the evidence reveals that the , financial condition of the accused/appellant, the deceased and her parents was not very good and they were working as labourer/mason. It appears that there used .to be some dispute between husband and wife because of their poor financial condition but it cannot be said that the death ofthe deceased was a dowry death. It also reveals that Dhaniram (PW-3) and Jhhunil (PW—5)- Father and mother of the l , deceased have not made any allegation of demand of dowry against the appellant in their 161 Cr.P.C statement which goes to show that they haveimproved their version in their Court Statement. Ganga Prasad (PW-6) - theuncle of the deceased admits in hi5 CfOSS‘examination that he had met the I- deceased in the month of January and thereafter he never met with her and the deceased died in the month of April. I According to this witness “it is also not proved that the . deceased was harassed for demand of dowry soon befbre her death. There is no cogent admissible evidence on record to show that soon before her death the deceased was’subjected 7 l 3 2": 9 ,7’ to crueity or harassment by the accused/appenant. The evidence is also very shaky in respect of demand of dowry because as per the statement of the witnesses Rs.5,000 were demanded by the appenant for his business and other allegations appear to be general in nature. In the case of AppaSaheb v. state of Mahrashtra reported in (2007) 9 SCC 721 in which it has been held by the Supreme Court as under: i 9. Two essentia! ingredients of section 304% IpC, apart from others, are (i) death of woman is , caused by, any burns or bodily injury or occurs Otherwise than under normai cimumstances, and A (ii) woman is subjected to cruelty or harassment ‘by her husband or any relative of her husband, for, or in connection with, “any demand ,ibr “dowry”. The - explanation appended to sub— section (1) of Section 304-8 IPC says that “dowry” snail have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. 1'0. Section 2 of the Down! Prohibition Act reads as under: ' “2. Dennition of ‘dowry’ — In this Act, ‘dowry’ means any property or valuable security given or agreed to be given either directly o indirectly- _ (a) by one partyto a marriage to the other party to the marriage; or , (b) by the parents of either party to a marriage or by any other person, to either partyto the marriage or to any other person, i ' ‘ 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-V (Shariat) applies;" y 11. In View of the aforesaid definition of the word “dowry” anyrproperty or valuable seam’ty should. be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. 7herefore, the giving or taking of property or valuable security must'have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a xv] ‘ l r ,%’ penal provision it has to be sm‘ctly construed. Down/ is a fairiy well-known social custom or s‘“ practice in India. It is well-settled principle of- inteipretatian of statute that if the Act is passed. v with reference to a particular trade, business or transaction and words are used which everybody onersant with t rad, uin. transcon k or uderstands to a articlar eaning n it, then the words are be cnstrued as having hat pticuiar meanin. (See Union of Inia v. Grware ns Lw. d. Chemical and bres India Lt. . Unn o India.) A emand for, money on aount of ome finai stngency or for meetig som en e x ping maure: 2 tme an y as h i n e ece ' ' dd he s , thfre an r dya din' cv hat te bsess or ati nows n hve a pu m i to o t ar g d a Nylo An Fi of d V io f d cc s ncal ri n e myt domstic epenses. or for urchas n cannot be erd as a demd for dowr te - said word s ormally undrstood. The evidn auced by t prosecution doe not ereo, show that y demand fo "owr"s define Section 2 of‘the Dowiy Prhibitio Act mad &\ on was e y the ppellants as what as llegedly aske b a w a d for m in mc was some oney for meetg doesti epnses a uing m inw a xe nd for prchas anure. S n ssial ingrien of Section 304 'z. eent edt $ IPCyi deand for owr s not esablih the convtio of the peants canot esuained »f th gal psitio iie th preease; h ntire o th rocti ecs dotf. se as per th evidence, th acued/ean nce demand Rs.,000 for bness the ai dnd ' cannot be termed as en dwr. Fte it is presume hat th s comtte he penant annt h guly unr ectio 6 of IPC , becau or hd gty ur thi on of he basic ingrient tha th deceae soo efr ath; was bjcte crue or asn by the e on cout of n dowr is coletl ssin his Ye nt cse in th tter of Satvir h nd ter v nd anot eore in (01) 3 s be e b he S Cu sue m dy i tsed, icn apll n bst. I e above 1e on is appd in e snt‘c te e case f e pseuon bome ubm becau e e csappiit’ {had o ed 5 his usi. and sd ema dmad of oy urhr if d t e deceaed mid suicide eventhen t ap co be eld it de Sn 34-3 se f oiing him uil nde s section e t eds t e sd n boe her de sued to ity harsmet appiiant acn demad of y mpey mig in t case. t in aoher a, e ma Sing a ohs . State of Punjab a her rptd 20 8 SCC 63 it ha en hld y t upreme ort andr: ,q’ Thus, there are three” occasions reiated to dowry.- One is befare the: marr§age, second is at the time of marriage and the third is “at any time” ai%er the marriage. 771a third occasion may appear to be an unending period. But the cmcial words are “in connection with the marriage of the said parties”. This means that giving or agreeing. to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the: parties. There can be many other instances for payment of money or giving property as [between the spouses. For example, some. customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of “dowry”; Hence the dowry \ mentioned in. Section 304-5 should he» any property or valuable security given Or agreed to be given in connectio with the marriage. It is not enough that harassment or cruelty was caused to the woman with 'a’demand; for dowry at some-time, if section 304-E is to be invoked. But it should have happened “soon before her death”. The said phrase; no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that, expression. The- legislative object in providing such a radius of time by employing the words “soon before her death” is to emphasize the idea that her death should; in- all probabiiities, havebeen the aitennath of I such cruelty or harassment. In other words, . there should be a perceptible nexus between i her death and the dowry-related harassment or cruelty indicted on her. If theinterval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position w gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the Cour to decide, on the facts and circumstances o each case, whether the said interval in that n t f -W-.~w“_ WWW ,. ”Io» patticular case was suli‘icient to. snuff i5 cdrd from the concept “soon before her deat ". Considering the overaH evidence adduced by the prosecution I find that prosecution has not been abie to prove the charges against the appellant beyond all reasonabie doubts. In this view of the matter, the conviction of the . P4 a/ appeiiant can’t be upheld. 10. In the result, this appeal is allowed. The impugnedt judgment and order of the Court below convicting and sentencing the appellant ynder‘ Section 30+B readj with Section 34 of IPC‘ is hereby set aside and the appellant ls o acquitted. Since the appellant is on bail, his‘bail bondssta‘nd“ discharged. Sd/u i" Pritinker Diwaker , 09% 3i \ VJudge l “‘W‘**f’i z n; -, l _ , ,‘ ,_ m