Cri. Appeal No. 360/1999 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 360 OF 1999 Bhagwat s/o. Pralhad Shinde, Age 24 yrs., Occu. Agril., R/o. Karsa, Tq. & Dist. Latur. ....Appellant. Versus State of Maharashtra ....Respondent. Mr. M.G. Deokate, Advocate for appellant. Mr. N.H. Borade, APP for State/respondent. CORAM : T. V. NALAWADE, J. Reserved on : 27th July 2011. Pronounced on : 4th August 2011. JUDGMENT : 1. This appeal is filed against judgment and order of Sessions Case No. 60/1998, which was pending in the Court of Extra Joint Additional Sessions Judge, Latur. The appellant is convicted and sentenced for offences punishable under sections 498-A and 304-B of the Indian Penal Code (IPC). Mother of the appellant was accused No. 2 and she is acquitted of both the offences. 2. In short the facts leading to the institution of the appeal can Cri. Appeal No. 360/1999 2 be stated as follows :- Deceased Savita was a daughter of complainant Bhagwan Gomchale, resident of Tandulwadi, Tahsil and District Latur. Savita was given in marriage to the appellant in May 1995 and after the marriage, Savita cohabited with the appellant in his village. The marriage was solemnized in village Tandulwadi and the complainant incurred the expenses of marriage. The complainant also gave dowry of Rs. 9000/-, one gold ring and other articles to the husband in the marriage. 3. When the deceased was brought to the house of complainant for the celebration of first Diwali festival in 1995, the deceased disclosed that there was illtreatment to her from husband and mother in law. She disclosed that they were asking her to bring money from her father and on that count, they were giving illtreatment to her. She also disclosed that they had warned her to bring atleast Rs. 1000/- from her father, when she was to return after the celebration of Diwali festival. The complainant could not give such amount to the deceased. 4. In 1996 on one occasion severe beating was given to the Cri. Appeal No. 360/1999 3 deceased and she was driven out of the matrimonial house. On that occasion the complainant somehow sent back the prosecutrix to matrimonial house. In August 1997 the husband visited the house of the complainant and he demanded Rs. 2000/- from the complainant. The husband wanted to start grocery shop. As the complainant could not meet this demand, the deceased was left in the house of the complainant by the appellant/husband. 4. When the appellant left the deceased in the house of her parents, she stayed there for more than two months. The husband then gave notice through his advocate to the deceased and asked her to return to her matrimonial house. Accused No. 2 had sustained injuries due to assault by bullock. After receipt of notice, sent by the husband, the complainant called some villagers and the husband was also called and then meeting was held. During the meeting, the husband gave undertaking in writing to behave well and then the complainant promised to send deceased back to matrimonial house. Savita was sent back at the time of Panchami festival of 1997 to matrimonial house. At the time of Diwali festival of 1997, complainant wanted to bring the deceased to his house for celebration of festival, but her husband refused to send her to parent's house. Cri. Appeal No. 360/1999 4 5. The incident took place on 31.12.1997. On that day the deceased and the appellant were present in the field. There is a well in the field of the appellant. After 2 pm, the deceased left the company of appellant and she proceeded towards well to fetch water. After that the deceased was not seen alive. On 1.1.1998 the husband gave report to police that the dead body of Savita was found in the well from his field. He also informed that on 31.12.1997 after 2 pm the deceased had left his company and since then deceased was missing. AD was registered on the basis of report given by appellant. Inquest was prepared and dead body was referred for PM examination. Doctor gave opinion that death took place due to asphyxia due to drowning. When the complainant learnt about the incident, he went to the village of appellant. When the funeral was over, the complainant gave report against the appellant and his mother. The crime at Cr. No. 2/1998 came to be registered for aforesaid offences against the appellant and his mother. During investigation complainant produced the written undertaking given by appellant before police. Police recorded statements of some villagers and some witnesses on the document of undertaking. Chargesheet came to be filed for aforesaid offences. In the Trial Court prosecution examined four Cri. Appeal No. 360/1999 5 witnesses. Accused took the defence of total denial. He has taken the defence that the deceased accidentally fell in the well and he was not at fault. 6. The Trial Court has held that the evidence of the complainant, the document of undertaking and the evidence of other witnesses is sufficient to prove that there was demand of money from appellant and on the count of that demand, there was illtreatment to the deceased. The Trial Court has held that the deceased committed suicide by jumping into the well. As the death took place within seven years from the marriage and as there was demand of money, dowry, the appellant is convicted and sentenced for both the offences. In the appeal, both the sides are heard. 7. It was submitted for the appellant that there is no mention of demand of money in the written undertaking and the Trial Court has not considered this circumstance. It was submitted that the Trial Court has not considered the circumstance that notice was sent by the husband to bring Savita for cohabitation to matrimonial house. It was submitted that there is clear probability that Savita accidentally fell in to the well. Alternatively, it was Cri. Appeal No. 360/1999 6 submitted that there is no proximity between the alleged disclosure of illtreatment and the date of incident. On the other hand, APP argued in support of the decision of the Trial Court. 8. The prosecution evidence about the date of marriage viz. May 1995 is not disputed. Savita died on 31.12.1997 i.e. within seven years from the date of marriage. Documents like inquest panchanama produced at Exh. 10 and spot panchanama produced at Exh. 11 are not disputed by the defence. Even the PM report at Exh. 13 is not disputed and so the case of the prosecution that Savita died due to asphyxia due to drowning is admitted by the accused. The AD report given by the husband is at Exh. 24 and this document is also not disputed. In the document, the husband had given information to police on 1.1.1998 that the dead body of deceased was found in the well from his land. He had informed to police that deceased had left his company at about 2 pm on 31.12.1997 for fetching water and since then she was missing. The dead body was found at about 8.30 am on 1.1.1998. It is the case of the husband that in between night of 31st December and 1st January, he had searched for Savita. These circumstances need to be kept in mind while appreciating the evidence given by prosecution and the defence of the accused. Cri. Appeal No. 360/1999 7 9. The spot panchanama at Exh. 11 shows that the well of the accused had no parapet wall. The water had depth of 15 fts., but the total depth of well was more. From the spot panchanama, it can be said that it was not possible for anybody to take water unless a rope was tied to the water pot. There were not steps to the well for getting into the well and there was no other arrangement like electric motor for pumping the water. Some portion of the northern side of the well was found to be in the use for taking water from that place, but no rope was recovered and no water pot was recovered under the panchanama. The documents like Exhs. 11 and 12 show that after putting the dead body on wooden bed/"Charpai", four persons had taken out the dead body from the well. These four persons had entered the well for taking out the dead body. All these circumstances are sufficient to infer that the deceased jumped in to the well to commit suicide. There are more circumstances like conduct of the husband on this point. 10. If the husband and deceased were together in the field up to 2 pm and the deceased had left for well to fetch water, in ordinary course, the husband would have searched in the water of well for the deceased. No such search was made on 31st by the husband. Cri. Appeal No. 360/1999 8 He informed to police that there was no water pot at the place where it was kept and due to this circumstance, in ordinary course, he ought to have taken search in the water of well. The evidence on the record shows that the husband did not contact the parents of deceased even when the place of husband is at the distance of 4 km from the village of parents of deceased. There is no record whatsoever to show that the husband inquired with anybody or with parents of the deceased on the night between 31st December and 1st January. He first approached the police after 8.30 am only when the dead body was floating in the well. As the deceased was in his company, it was necessary for the husband to explain all these circumstances. As there is no explanation, adverse inference needs to be drawn against the husband. In these circumstances also it needs to be inferred that it is the case of suicide and the husband also knew that his wife had jumped in to the well to commit suicide. The circumstances due to which the deceased took the decision, must be within the knowledge of the husband as he was in her company at the relevant time. Nothing is said about this circumstance by the husband. So, sections 106 and 114 of the Evidence Act need to be used against the husband-appellant. 11. Bhagwan (PW 1) has given evidence that he had made Cri. Appeal No. 360/1999 9 expenditure of marriage and the marriage was solemnized in his village Tandulwadi. He has deposed that he had given Rs. 8,000/-, one gold ring of 5 grams, clothes and household articles to the husband in the marriage. The statement given by the husband under section 313 of Criminal Procedure Code (Cr.P.C.) shows that he has admitted this part of evidence of the complainant. PW 1 has further deposed that he had brought the deceased to parent's house for the first celebration of Diwali festival and on that occasion the deceased had disclosed that there was demand of Rs. 1000/- to Rs.2000/- from the husband and he wanted to start a grocery shop. PW 1 has deposed that deceased disclosed to him that her husband was giving beating to her. PW 1 has deposed that when he reached the deceased to matrimonial house, he convinced the accused to behave well. PW 1 has deposed that within one month of the reaching of the deceased at her matrimonial house after Diwali festival, the deceased was driven out of the house by the husband. He has deposed that warning was given to the deceased that she should bring Rs. 1000/- or Rs. 2000/- from the father. PW 1 has then given evidence that notice was given by the husband through advocate and notice was replied through Advocate Kulkarni. Though in the statement under section 313 of Cr.P.C., the appellant has admitted that the notice was Cri. Appeal No. 360/1999 10 replied through Advocate Kulkarni, in the cross examination, PW 1 has again admitted that he had not replied the notice. Copy of the reply is not produced. However, there are admitted circumstances like holding of meeting after receipt of notice sent by husband and the execution of document like undertaking by the husband. PW 1 has deposed that a meeting was called after receipt of notice and in the meeting the husband gave undertaking in writing that he would give better treatment to the deceased. PW 1 has deposed that due to this undertaking, he sent Savita back to matrimonial house. The accused/appellant has admitted his signature appearing on the undertaking, but he has denied the contents. In the appeal, it was submitted for the husband that even if it is presumed that the contents are proved, the contents do not show that husband admitted that he had demanded money. 12. Bhagwan (PW 1) has further deposed that when he tried to bring the daughter for celebration of Diwali festival of 1997, after resumption of cohabitation, the husband refused to send the deceased to the house of parents. PW 1 has deposed that the husband said on that occasion that the amount of Rs. 2000/- should to be given first. In the statement under section 313 of Cr.P.C., the husband has admitted that on the occasion of last Cri. Appeal No. 360/1999 11 Diwali festival, when request was made, he refused to send the deceased to the house of father. The husband has, however, denied that he had made demand of Rs. 2000/- and as the demand was not met with the wife was not sent to the house of parents. PW 1 has expressed that as he did not give the amount of Rs. 2000/-, illtreatment was given by the husband and so his daughter committed suicide. The FIR, Exh. 15, given by PW 1 is consistent on material points with the evidence of PW 1. 13. Ankush Ghomchale (PW 2) has given evidence that after one year of the marriage, he learnt about the illtreatment which the deceased was receiving. He has given evidence that he was present when the accused gave undertaking to behave well. This witness was cross examined by APP as he did not state in the evidence that deceased had disclosed to him directly about the illtreatment. In his evidence, it is brought on record by the husband that he had separately met the husband and he had advised the husband to behave well. He has admitted that during inquiry, the husband had made complaint that Savita was little bit arrogant. There is signature of this witness on the undertaking, Exh. 18. In view of these circumstances, the evidence of Ankush can be used for the purpose of corroboration and the circumstance that APP was Cri. Appeal No. 360/1999 12 required to cross examine him, can be ignored. There is evidence from this witness that there was demand of Rs. 2000/- from the husband. One more witness namely Dhondiram (PW 3) is examined to prove the document which is at Exh. 18. Surprisingly this witness is not cross examined by the defence counsel. This evidence gives necessary corroboration on material points to the case of the prosecution. 14. In the cross examination of PW 1 he has admitted that notice was sent by husband when Savita had stayed in his house for about two months. However, there is evidence that she was driven out of the house and so she was staying in the house of parents. He has admitted that accused No. 2 was injured due to attack of bullock and then accused No. 1 had come to him to take Savita back to her matrimonial house. PW 1 has deposed that he refused to send Savita to matrimonial house as there was illtreatment to the deceased. At Exh. 16, there is copy of notice sent by husband. In the notice the husband had made allegations that deceased had left his company as he was not ready to live separate from his mother and brothers. There is no such mention in Exh. 18 and no such suggestion is given to any witness for the husband. Thus, no probability is created in this regard by the defence. Cri. Appeal No. 360/1999 13 15. The aforesaid evidence is sufficient to prove that the deceased was required to stay for two months in the house of her father as she was driven out of her matrimonial house and the deceased was sent back to matrimonial house only when the husband gave undertaking to behave well. Prosecution has also proved that the husband had refused to send the deceased to the house of parents for the celebration of last Diwali. There is evidence to prove that the distance between village of appellant and father of deceased is hardly 4 km. The husband did not inform to the father of the deceased that since 2 pm of 31.12.1997 the deceased was missing. The evidence also shows that even when it was within the knowledge of the husband that the deceased had left for the well, he did not search in the water of well on 31st December. The burden which was on the appellant to explain the circumstances is already discussed. All these circumstances and the evidence given by the father of the deceased are sufficient to prove that the demand of money was made by the husband, the demand was not met with by the father of the deceased and due to that there was illtreatment to the deceased. This evidence is also sufficient to prove that Savita committed suicide only due to illtreatment given by the husband and illtreatment was on the Cri. Appeal No. 360/1999 14 count of demand of money, dowry. 16. In the case reported as "Shanti vs. State of Haryana" [AIR 1991 SC 1226], the Apex Court has discussed four essentials of sec. 304-B which are required to be proved for proving the offence. The essentials are as follows. 1) The death of woman should be caused by burns or bodily injury or otherwise than under normal circumstances. 2) Such death should have occurred within seven years of her marriage. 3) She must have been subjected to cruelty or harrassment by her husband or any relative of her husband. 4) Such cruelty or harassment should be for or in connection with demand for dowry. Thus, the death is required to be proved as unnatural for proving this offence and the death may be homicidal or suicidal. Only after proof of these ingredients, it is possible to invoke the provisions of sec. 113-B of the Evidence Act. Cri. Appeal No. 360/1999 15 17. Sec.113-B of the Evidence Act reads as under : 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 had caused the dowry death." Thus, when it is shown that the deceased committed suicide within seven years of marriage, sec.113-B of the Evidence Act and Section 304-B of the IPC will be attracted if there is further proof of dowry demand. The word 'shall' used in section 113-B of the Evidence Act shows that if these ingredients are proved, prosecution can bring home the guilt to the accused. 18. In the case reported as "State of Himachal Pradesh vs. Nikku Ram" [AIR 1996 SC 67] the interpretation of 'dowry' is done by the Hon'ble Apex Court and it is as under :- "The definition as amended by the aforesaid two Acts does not, however, leave anything to doubt that demands made after the solemnisation of marriage would be dowry. This Cri. Appeal No. 360/1999 16 is because the definition as amended reads as below : In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly 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 person to whom the Muslim Personal Law (Shariat) applies. The aforesaid definition makes it clear that the property or the valuable security need not be as a consideration for marriage as was required to be under the unamended definition. This apart, the addition to the words "any time" before the expression 'after the marriage' would clearly show that even if the demand is long after the marriage the same could constitute dowry, if other requirements of the section are satisfied." 19. For the appellant, one case reported as 2010 ALL MR (Cri) 3476 [Girish s/o. Narayanrao Naik Vs. State of Maharashtra ] was cited. In this case, it is observed by this Court that for proving the offence under section 304-B of IPC, the prosecution is required to prove that the illtreatment was given in near past to the unnatural death so as to proximate to the incident. This proposition cannot be disputed. The facts and circumstances of each and every case are always different. In the present case, there are circumstances like admission of the accused in the undertaking and the other admission that he had refused to send the deceased to the parents Cri. Appeal No. 360/1999 17 house on the occasion of last Diwali festival. The incident in question took place within two months from Diwali festival. There is evidence that the refusal was due to the circumstance that the demand made by the husband was not met with. So, the observations made in the case cited supra are not helpful to the husband. 20. Another case reported as 2009 ALL MR (Cri) 2083 [Satish Fakira Dhangar & Ors. Vs. State of Maharashtra ] was cited. In this case this Court has held that for proof of offence under sections 498-A and 306 of IPC, the prosecution must prove the illtreatment and the illtreatment must be of such a nature that it would drive the woman to commit suicide. The facts and circumstances of each case are generally different. In such cases what may amount to cruelty in one case may not amount to cruelty in another. In the present case, there is sufficient material to prove the illtreatment. So the observations made in this case are also of no use to the husband. In the case reported as (2010) 9 SCC 73 [Durga Prasad and another Vs. State of Madhya Pradesh], the Apex Court held that there was no sufficient material to prove the offence punishable under sections 304-B and 306 of IPC. The Apex Court has discussed the meaning of the term "soon before" used in Cri. Appeal No. 360/1999 18 section 304-B. This point is already discussed when the other case cited for the appellant was discussed. This case is also of no help to the husband. 21. Hearing was given to the appellant's side on the point of sentence. The Trial Court has given minimum punishment provided for offence punishable under section 304-B, of IPC. In view of the facts and circumstances of this case also the sentence cannot be reduced. This Court holds that there is no reason to interfere in the decision of the Trial Court and so the appeal stands dismissed. [ T. V. NALAWADE, J.] ssc/cria360.99