1 IN THE HIGH COURT OF JUDICATURE FOR RAJALSTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T 1. Amit Sharma S/o Prem Prakash 2. Prem Prakash S/o Ram Narain 3. Smt.Gayatri W/o Prem Prakash .....Appellants Versus State of Rajasthan .....Respondent (S.B.CRIMINAL APPEAL NO.1096/2006) S.B.CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT DATED 29TH SEPTEMBER, 2006 PASSED BY SPECIAL JUDGE (WOMEN ATTROCITIES AND DOWRY CASES), KOTA IN SESSIONS CASE NO.44/2004 BY WHICH THE ACCUSED APPELLANTS HAVE BEEN CONVICTED AND SENTENCED UNDER SECTION 498-A AND 304-B I.P.C. ***** DATE OF JUDGMENT ::: DECEMBER 16, 2009 P R E S E N T HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr.Kamlakar Sharma ) Mrs.Alankrita Sharma) Mr.Govind Rawat ), for the appellants Mr.J.R.Bijarnia,Public Prosecutor for the State BY THE COURT: 1. This appeal under Section 374 of the Code of Criminal Procedure on behalf of above named three appellants is directed against the impugned judgment and order dated 29th 2 September, 2006 passed by Special Judge, (Women Atrocities & Dowry Cases), Kota in Sessions Case No.44/04, whereby the trial court has convicted and sentenced each appellant under Section 304-B I.P.C. to undergo 10 years rigorous imprisonment and under section 498-A I.P.C. to undergo 3 years imprisonment and a fine of Rs.1000/-; in default of payment of fine to further undergo one month simple imprisonment. Both the sentences were ordered to run concurrently. 2. Briefly stated the facts of the case are that a written report(Ex.P10) was lodged by P.W.8 Narendra Kumar Saxena at Police Station, Mahvir Nagar, Kota on 21st May, 2004, wherein it was alleged that his daughter Manisha Saxena who was studying at Kota in B.A.Final Year, one Amit Kumar Sharma S/o Prem Prakash Sharma induced his daughter into abduction and fled away and they also got married 6 months ago in Arya Samaj, Kota. When he received this information, he went to Amit Sharma's house, there his parents misbehaved with him and told that their son has got married with his daughter and now it will be proper for him to manage a marriage reception to save his reputation. It was further alleged that he was 3 not allowed to meet his daughter and allowed the boy and girl both to go from Kota. On receiving an information that both are staying in Noida, Delhi in Amit's sister's house, he went to search his daughter at Delhi but the sister of Amit misbehaved with him and hidden Amit and Manisha both at some where else. Thereafter, Amit and his mother told him on telephone that he will have to accept their marriage and Amit who is unemployed, should be given Rs.2 to 4 Lacs for his job/business otherwise his daughter will suffer lot. It was further alleged that Amit's maternal uncle Om Prakash Sharma, who is a Compounder in Hospital at Lakheri also told him that whatever amount he incurred in his elder daughter's marriage, the same amount be also paid to Amit so he may start his business and his daughter may live happily. It was also alleged that as and when his daughter Manisha talked on telephone, she was not allowed to talk except few words. All of a sudden on that day he received a telephonic message from Amit that his daughter is ill and is admitted in Hospital and if he wants to meet her, he should visit her immediately. After fifteen minutes, he received another telephonic message that she is now no more. When he went to hospital at Kota, he saw 4 the dead body of his daughter in the mortuary, he was of the opinion that his daughter has been killed after giving her poison. On the basis of above report, the police registered F.I.R. No.198/04 under Sections 304-B, 302 & 498-A I.P.C. During investigation, post-mortem of the dead body was got conducted. A written suicidal note in diary duly signed by deceased Manisha (Ex.P15) was recovered. The statements of prosecution witnesses were recorded under Section 161 Cr.P.C. After completion of investigation, the police filed a challan against appellants. 3. The trial court committed the case for trial to the court of District & Sessions Judge, Kota, which was transferred for trial to the Special Court (Women Atrocities & Dowry Cases), Kota. The trial court framed charge against all the three accused appellants for the offence under sections 498-A & 304-B I.P.C. The accused persons denied the charge and claimed trial. 4. The prosecution, in support of its case, examined P.W.1 Preeti Saxena, P.W.2 Premlata Saxena, P.W.3 Tripti Saxena, P.W.4 Sohan Lal Sharma, P.W.5 Sanjay Kumar Saxena, 5 P.W.6 Dr.G.S.Vishnar, P.W.7 Dr.Satish Saxena, P.W.8 Narendra Saxena, P.W.9 Shiv Charan Singh, P.W.10 Shriman Lal, P.W.11 Laddu Lal, P.W.12 Sudhir Joshi, P.W.13 Jagmal Verma and P.W.14 Girdhari Lal Sharma and produced and exhibited documents from Ex.P1 to Ex.P30. Thereafter, statements of the accused persons were recorded under Section 313 Cr.P.C., wherein it was stated that family members of deceased were not agreeable with the marriage of deceased with accused Amit, therefore, due to that enmity, they have falsely implicated the accused persons. In defence, the accused persons examined D.W.1 Om Prakash Sharma S/0 Hari Prasad Sharma and D.W.2 Om Prakash Sharma S/o Durga Lal. The trial court after considering the submissions of learned counsel for both the parties as well as record of the case convicted and sentenced the accused appellants as mentioned above. Being aggrieved with the same, the appellants have preferred the present appeal. 5. The submission of the learned counsel for the appellant Shri K.K.Sharma is that it was love marriage of deceased Manisha with appellant Amit, therefore, there was no question of demanding any dowry from 6 complainant party. The appellants Prem Prakash and Smt.Gayatri Devi parents of Amit had already accepted this marriage, they all were happy and they did not demand any dowry from the complainant party, rather the complainant party had not accepted the marriage of Manisha with Amit, therefore, they lodged the present report against the present appellants. He read out the statements of P.W.8 Narendra Kumar (father of the deceased), P.W.2 Premlata (mother of the deceased), P.W.1 Preeti and P.W.3 Tripti (sisters of the deceased), P.W.7 Dr.Satish (brother of the deceased), P.W.5 Sanjay (uncle of the deceased) and contended that from their testimony, it is clear that there is no iota of evidence for demand of dowry in connection with the marriage of Amit with Manisha. He contended that from the statements of prosecution witnesses, it is also clear that there is no evidence in respect of any cruel behaviour or harassment by accused persons with deceased Manisha. He contended that as per prosecution case, the parents of Amit told to P.W.8 Narendra Saxena to accept the marriage by arranging their marriage reception and to pay Rs.2 Lacs for business of Amit. He contended that to attract the provisions of Section 304-B or 498-A I.P.C., it 7 is necessary for the prosecution to prove that soon before death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband and such cruelty or harassment must be for or in connection with demand of dowry. He contended that even if demand of Rs.2 Lacs for starting business of Amit is alleged to be proved, even then the appellants cannot be convicted for the offence under sections 498-A and 304-B I.P.C. in absence of any evidence about cruelty or harassment with deceased by accused for or in connection with demand of dowry in connection with marriage. He also read out the suicide note written by deceased (Ex.P15) and submitted that it was specifically written in it that she herself is responsible for her death. Nothing has been mentioned in the 'suicidal note' and no allegation has been alleged in it about her death on any one. Therefore, it cannot be presumed that she was subjected to any cruelty or harassment for or in connection with demand of dowry. In these circumstances, the learned trial court committed an illegality in convicting and sentencing the accused appellants. Therefore, impugned judgment/order is liable to be set aside by this Court. In support of his submissions, he referred to 8 Appasaheb & Anr. vs. State of Maharashtra – AIR 2007 SC 763, Satvir Singh & others vs. State of Punjab & another – 2001(8) SCC 633, Gurucharan Kumar & Anr. vs. State of Rajasthan – 2003(2) SCC 698 and K.Prema S.Rao & Anr. vs. Yadla Srinivasa Rao & Ors. - 2003(1) SCC 217. 6. Per contra, the learned Public Prosecutor argued that from the statements of P.W.1 Preeti, P.W.2 Smt.Premlata and P.W.3 Tripti, it is clear that there was demand of dowry by appellants in connection with the marriage of Manisha with Amit, the deceased was married in December, 2003 and she died in her matrimonial house on 21st May, 2004 within six months of her marriage and her death is not natural, therefore, burden is shifted on the appellants to explain under what circumstances the deceased committed suicide or she died. He also referred to the statements of P.W.1 Preeti, P.W.2 Premlata and P.W.3 Tripti and contended that deceased died at her matrimonial house because of demand of dowry by appellants. He contended that trial court has considered the evidence in detail and has rightly recorded a finding that charge against appellants is fully proved and they have rightly been 9 convicted and sentenced. 7. I have considered the submissions of learned counsel for the parties and minutely scanned the record and the impugned judgment of the trial court. 8. From the evidence available on record, it is an admitted fact in between both the parties that deceased Manisha and Amit were in love affairs and they voluntarily married in December, 2003 in Arya Samaj without consent of their parents. The deceased Manisha and accused Amit came at Kota and started living with Amit's parents, who had accepted their marriage and allowed them to live with them. The deceased Manisha died at her matrimonial house on 21st May, 2004. The post-mortem report dated 21st May, 2004 is Ex.P6, wherein in column No.8 relating to additional remarks, it is mentioned, “Alleged H/o Celphos poisoning” The Medical Board in post-mortem report gave their opinion as under:- “The opinion will be given after receiving above viscera and blood FSL report & histopic thological examination report for which above viscera blood are taken, sealed & handed over to police for the same.” 10 9. There are two reports from FSL, one is in respect of hand writing of the deceased on 'suicidal note' (Ex.P15) and her signature thereon (Ex.P14) and another is in respect of viscera and blood sample. It is relevant to mention that FSL report in respect of writing and signatures of deceased is concerned it is dated 11.2.2005 and it was exhibited as Ex.P7 and the result of analysis was as under:- “DESCRIPTION OF ARTICLES DISPUTED -Blue enclosed writings and signature in Hindi and English stamped and marked as Q1 and Q2 on last page of diary of 'Road Master' year 1992. ...One diary. ADMITTED Admitted – A1 to A17 . ... One volume,one admission form and 3 sheets and extra one sheet. PURPOSE OF EXAMINATION To determine authorship, of the disputed writing and signature. RESULT OF EXAMINATION As a result of very careful and thorough scientific examination with the help of Stereomicroscope, I.R., U.V. and other light examination of the documents referred to overleaf, the following conclusion has been arrived at :- The disputed writing and signature marked as Q1 and Q2 show significant similarities with the admitted writings and signatures marked as A1 to A17, due to following reasons :- The disputed and admitted writings and signatures are written freely show similarities in general writing habits such as skill, line quality, pen pressure, 11 movement, spacing, alignment, relative location of letters etc. The disputed and admitted writings and signatures are also show similarities in individual significant characteristics. Some are given below:- (i) Internal consistency, manner of execution, relative size of the letters in the disputed writings marked as Q1 and the disputed signature marked as Q2 show significant similarities in inter se comparison. (ii) Similar manner of execution of letter 'त' nature of body formation and joining with staff at lower end. (iii) Similar nature of movement of letter 'ज'. (iv) Similar execution of letter 'द' nature of body movement and its finish. (v) Similar manner of execution of letter 'क' nature of start, body movement and its finish. (vi) Similar execution of letter 'म' nature of eyelet formation, middle stroke and joining with staff. (vii) Similar habit of movement in formation of letter ' '. (viii) Similar habit of formation of vowel sign of “ee”, 'O' and 'U' nature of formation and placement. (ix) Similar nature of movement of letter 'n'. (x) Similar manner of execution of letter 'a' nature of body formation and its combination with letter 'n'. (xi) Similar manner of execution of letter 'h' nature of start, body formation and joining with terminal letter 'a'. Above points of similarity are significant and sufficient enough to permit determination of authorship of the disputed items marked as Q1 and Q2 in comparison with the standard writings marked as A1 to A17. Hence the 12 opinion.” 10. From the above report, it is clear that hand writing and signature (Ex.P14) on suicide note (Ex.P15) belong to deceased Manisha. The contents of suicide note (Ex.P15) are, “I myself is responsible for my death” The exact words written in Hindi are as under:- “ मे अपनी मौत कȧ जीàमेदार खुद ह ुI “ 11. So far as another FSL report about viscera and blood sample is concerned, it is dated 13.8.2004, the result of examination is as under:- “On chemical examination, portions of viscera (1-5) from two packets marked (A) and (B) gave positive tests for the presence of Aluminium Phosphide and gave negative tests for ethyl and methul alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides. The blood sample (6) from packet marked 'D' gave negative tests for ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers, insecticides and inconclusive results for Aluminium phosphide.” 12. From the evidence available on record, it is clear that deceased Manisha married with 13 appellant Amit in December, 2003 and she died on 21st May, 2004 at her matrimonial house. As per suicide note (Ex.P15), she herself was responsible for her death. As per allegations, the deceased was administered poison. As per opinion of the Medical Board in the post-mortem report it was mentioned that opinion will be given after receipt of viscera and blood FSL report. As per FSL report about viscera and blood sample, there was a positive report for the presence of Aluminium Phosphide and negative test for ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers, insecticides and inconclusive results for Aluminium phosphide. Therefore, it is clear that her death was within 7 years from the date of the marriage and it was not natural. 13, The question as to whether deceased committed suicide at her own for other reasons or because of cruelty or harassment by her in- laws soon before her death for demand of dowry in connection with marriage is a question, which is to be decided after analysis of the prosecution evidence available in the case, which will be discussed hereinafter. However, before discussion of the prosecution evidence, 14 it will be appropriate to consider the relevant provisions of law as well as case law referred during the course of arguments. 14. For ready reference Section 304-B, 498-A I.P.C. the definition of “dowry” as defined under Section 2 of the Dowery Prohibition Act, 1961 and Section 113-B of the Evidence Act are reproduced as under:- “304-B.Dowry death.-(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. 498-A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.- for the purpose of this section, “cruelty” means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any 15 property or valuable security or is on account of failure by her or any person related to her to meet such demand. Sec.2 – Definition of 'dowry'.- In this Act, 'dowry' means 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 a 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 Muslim Personal law (Shariat) applied. Explanation I.- For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties. Explanation II.-The expression 'valuable security' has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860). 113-B. Presumption as to dowry death.- When the question is whether a person had 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. Explanation.- For the purpose of this section,'dowry death' shall have the saem meaning as in Section 304-B of the Indian Penal Code.” 15. In Appasaheb & Anr. vs. State of Maharashtra(supra), the Hon'ble Apex Court held 16 that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. As per definition of “dowry” as given in 1961 Act, 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. These provisions being penal provisions are to be construed strictly. Para 9 of the judgment is reproduced as under:- “9. Two essential ingredient of Section 304-B IPC, apart from others, are (i) death of women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) women is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for "dowry". The explanation appended to sub-section (1) of Section 304-B IPC says that "dowry" shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961. Section 2 of Dowry Prohibition Act reads as under :- "2. Definition of "dowry" - In this Act "dowry" means 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 parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any 17 time after the marriage in connection with the marriage of the said parties, but does not include dowry or mahr in the case of persons to whom the Muslim Personal Law (shariat) applies. In view of the aforesaid definition of the word "dowry" any property or valuable security 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. Therefore, 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 penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd., AIR (1996) SC 3509 and Chemicals and Fibres of India v. Union of India, AIR (1997) SC 558). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses of for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.” 18 16. In Satvir Singh & others vs. State of Punjab & another(supra), the Hon'ble Apex Court considered the meaning of word “dowry” defined in Section 2 of the Dowry Prohibition Act, 1961 with reference to offence under section 304-B I.P.C. and observed that there are three occasions related to dowry, One is before the marriage, second is at the time of marriage and the third is “at any time” after the marriage. The third occasion may appear to be an unending period. But the crucial words are “in connection with the marriage of the said 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”. Paras No.s 20 to 26 of the judgment are reproduced as under:- “20.Prosecution, in a case of offence under Section 304B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused soon before her death. The word dowry in Section 304B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. That definition reads thus: “2.In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to marriage to the 19 other party to the marriage; or (b)