AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1158 OF 2003 Balasaheb Changdeo Ghule, R/o. of Jalgaon Neour, Taluka Yeola, Dist. Nasik. (At present in Nasik Jail). ) ) ) ) ... Appellant Versus The State of Maharashtra. ) ... Respondent Mr. S.K. Shinde with Mr. Sagar Kasar and Mr. Satyajit Dighe for the appellant. Ms. V.R. Bhonsale, A.P.P. for the State. CORAM : SMT. RANJANA DESAI & R.G. KETKAR, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 18TH JUNE, 2009. DATE ON WHICH THE JUDGMEMT IS PRONOUNCED : 16TH JULY, 2009. JUDGMENT.:- (Per Smt. Ranjana Desai, J.) 1. The appellant, who is original accused 1 was tried along with three others, who are original accused 2 to 4 AJN 2 respectively (since acquitted), in Sessions Case No.1 of 2003 for offences punishable under Sections 498-A, 302, 304-B read with Section 34 and Section 201 read with Section 34 of the Indian Penal Code, (for short, “the IPC”). The accused were charged for having murdered Jayashree @ Jijabai (for convenience “the deceased” or “Jijabai”) or in the alternative for having subjected her to cruelty for dowry soon before her death. 2. By the impugned judgment and order dated 25/8/2003, learned Additional Sessions Judge, Niphad convicted the appellant of the offence punishable under Section 498-A of the IPC and sentenced him to suffer RI for a period of three years and to pay a fine of Rs.5,000/-, in default, to suffer further RI for a period of 3 months. He was also convicted of the offence punishable under Section 304-B of the IPC and sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000/-, in default, to suffer further RI for a period of 6 months. Substantive sentences were ordered to run concurrently. AJN 3 The appellant was acquitted of the offences punishable under Sections 302 and 201 read with Section 34 of the IPC. The rest of the accused were acquitted of all the charges. The appellant has challenged his conviction and sentence in this appeal. For the sake of convenience, we shall refer to the other accused as accused 2 to 4 respectively. 3. It is necessary to give the gist of the prosecution case. On 30/9/2002, Dinkar Ghule son of accused 3 went to Police Patil Rangnath Barku Kurade (PW-1) and informed him that a corpse of an unknown woman is seen in the well in his field in village Jalgaon, Nevur and requested him to come to the spot. Rangnath went to the field and found a corpse of a woman floating in the water in the well. He went to the Yeola Taluka Police Station and gave information about the said incident at 19.15 hours on the same day. The information was registered as Accidental AJN 4 Death No.39 of 2002. ASI Mahale went to the spot in the morning. He carried out an inquest panchnama. The corpse had decomposed to some extent but, there were some injuries on it and, hence, he forwarded it for the postmortem examination to the Rural Hospital, Yeola. Postmortem was done and the medical officer opined that the death was caused because of cardio respiratory failure due to asphyxia due to throttling. 4. On the same day, Nitin Gavane (PW-2) and Walubai Gavane (PW-4) i.e. the brother and the mother of deceased Jijabai respectively were taken to Rural Hospital, Yeola by Nitin’s maternal uncle Kadam, who had sometime before inquired with them on phone as to where the deceased was and he was informed that she had gone to her in-law’s house on 27/9/2002. On reaching the Rural Hospital, Yeola, they saw the corpse of a woman. They were convinced that it was Jijabai. Hence, after the cremation, PW-2 Nitin lodged the complaint (Ex-41) at 20.10 hours. AJN 5 5. In his complaint, PW-2 Nitin, inter alia narrated the manner in which the deceased was ill-treated by her in- laws and how demand of money was made from her. PW-2 Nitin stated that the in-laws of the deceased used to ill-treat and insult her because she could not fulfill their demand of money. They used to tell her that her parents did not give sufficient dowry and, therefore, she should bring Rs.40,000/- for Hero Honda Motorcycle. They conspired and killed her and threw her corpse in the well because Rs.40,000/- were not paid to them. We shall advert to this more in detail a little later. On the basis of this complaint, investigation was set into motion. After completion of investigation, the accused came to be charged as aforesaid. 6. In support of its case, the prosecution examined as many as 7 witnesses. The star witnesses of the prosecution are PW-2 Nitin Gavane, the brother of the deceased and PW-4 Walubai Gavane, the mother of the AJN 6 deceased. Details of investigation have been given by PW-7 PI Chandrakant Thorat, who was attached to Yeola Police Station at the relevant time. The accused pleaded not guilty and claimed to be tried. The accused did not lead any evidence. According to the accused, they were falsely implicated in the case. After perusing the evidence on record, learned Sessions Judge acquitted accused 2 to 4 and convicted the appellant as aforesaid and, hence, this appeal by the appellant. 7. We have heard, at great length, Mr. Shinde, learned counsel appearing for the appellant. Learned counsel submitted that the evidence on record consists of interested testimony of brother and mother of the deceased, which does not inspire confidence. He submitted that the prosecution has not adduced evidence of any independent witnesses to substantiate its case. He submitted that the evidence on record does not satisfactorily establish the identity of the deceased. He drew our attention to the evidence of PW-3 Balnath Ghule, AJN 7 the Police Patil, who stated that the corpse of a woman was taken out from the well in his presence and that he could not state whose corpse it was. He submitted that there is also discrepancy about the colour of the saree, which is mentioned in the inquest panchnama and the colour of the saree which is mentioned by PW-1 Kurade and mentioned in Ex-39 which is the report made by him. He further submitted that the evidence of PW-2 Nitin Gavane and PW-4 Walubai Gavane does not indicate that the alleged demand of money had any connection with dowry. He drew our attention to the definition of the term “dowry” as found in Section 2 of the Dowry Prohibition Act, 1961 (for short, “the Dowry Act”). Dowry is defined thereunder as “any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage; or 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 AJN 8 said parties”. He submitted that there is no evidence on record to indicate that the money allegedly demanded from the deceased had any connection with the deceased’s marriage with accused 1. In this connection, learned counsel relied on the judgments of the Supreme Court in Appasaheb & Anr. v. State of Maharashtra, AIR 2007 SC 763, Shivanand Mallappa Koti v. State of Karnataka, AIR 2007 SC 2314, Sukhram v. State of Maharashtra, AIR 2007 SC 3050, M. Srinivasulu v. State of A.P., AIR 2007 SC 3146, Hira Lal & Ors. v. State (Govt. of NCT), Delhi, AIR 2003 SC 2865 and Kaliyaperumal & Anr. v. State of Tamil Nadu, AIR 2003 SC 3828. 8. Learned counsel pointed out that learned Judge has recorded a finding that the demand of money by all the accused in connection with the marriage of the deceased is not proved by the prosecution. He submitted that therefore learned Judge could not have convicted accused 1 under Section 304-B of the IPC. Learned counsel further AJN 9 submitted that assuming cruelty is established that would be sufficient to convict the accused under Section 498-A of the IPC but unless there was evidence of dowry demand, Section 304-B of the IPC would not be attracted. In this connection he relied on the judgment of the Supreme Court in Pyare Lal v. State of Haryana, (1997) 11 SCC 552. Learned counsel pointed out that the deceased had lodged a complaint against all the accused in the police station at Yeola on 30/3/2000. Thereafter, there was a compromise in the police station in 2000 and it was agreed that accused 1 and the deceased would stay separately in the village and accordingly it is the case of the prosecution as stated by PW-4 Walubai that they resided separately for a period of one month. Leaned counsel submitted that there is nothing to indicate that the deceased and accused 1 stayed together after the period of one month and they were staying together at the time of the incident. He submitted that this is evident from the evidence of PW-2 Nitin who has stated that on 1/10/2002 his maternal uncle AJN 10 asked him on phone whether the deceased was staying with the in-laws or with her parents. Learned counsel submitted that the incident in question took place on 30/9/2002 much after the compromise. The alleged ill- treatment was prior to the compromise. Therefore, there is no proximity between the ill-treatment or cruelty allegedly meted out to Jijabai and her death. Hence, the presumption under Section 113-B of the Evidence Act will not arise in this case. Learned counsel submitted that PW-2 Nitin Gavane and PW-4 Walubai Gavane had made improvements in their evidence in the court. The omissions in their evidence are vital omissions and they suggest that the prosecution has concocted the case of dowry death. Learned counsel submitted that therefore this is a fit case where the conviction and sentence should be set aside. 9. Ms. Bhonsale, learned A.P.P. appearing for the State on the other hand, submitted that the prosecution has established its case beyond reasonable doubt. She AJN 11 submitted that the evidence on record clearly establishes that the demand for money was in connection with the marriage of the deceased. In this connection, she relied on the judgments of the Supreme Court in State of Andhra Pradesh v. Raj Gopal Asawa & Anr. AIR 2004 SC 1933, Vidhya Devi & Anr. v. State of Haryana, AIR 2004 SC 1757 and Pawan Kumar & Ors. v. State of Haryana, AIR 1998 SC 958. She submitted that the demand for dowry may be direct or indirect. In a given case, there may not be direct demand for dowry but the demand may be for things like scooter, car, etc. If the circumstances suggest that such demands were in the nature of demand for dowry as they had connection with marriage, conviction under Section 304-B should follow. Learned A.P.P. submitted that there were several injuries on the deceased. Therefore, the case of the prosecution that the deceased was assaulted and then pushed in the well is made out. The injuries suffered by the deceased indicate that before she was thrown in the well, she was beaten up. Learned A.P.P. submitted that AJN 12 this is, therefore, a fit case where the conviction should be maintained. 10. Before we come to grips with the other rival contentions, it is necessary to deal with the attempt made by the defence to dispute the identity of the dead body found in the well. Genuineness of the inquest panchnama, Ex-22 has been admitted by the defence. It is pointed out to us that in the inquest panchnama, the sari found on the corpse recovered from the well is described as of faint yellow colour having dots. Our attention is drawn to the evidence of PW-1 Kurade, police patil of village Jalgaon, Nevur. He has stated that on 30/9/2002 at 5.00 p.m., Dinkar Ghule, the son of Changdeo Ghule (original accused 3 since acquitted) came to him and informed him that a corpse of an unknown person was floating in the well situated in his field. According to PW-1 Kurade, he went with Dinkar Ghule to the well at 6.00 p.m. and saw the dead body. He then made a report at the Yeola Police Station which is at AJN 13 Ex-39. Learned counsel pointed out that in the said report the sari worn by the deceased is described as red colour sari. Learned counsel further pointed out that PW-3 Balnath Ghule who is the panch to the inquest panchnama has admitted its contents but has not identified the corpse as that of the appellant’s wife. Learned counsel submitted that it is therefore extremely doubtful whether the corpse recovered from the well was that of the wife of the appellant. 11. It is not possible for us to accept this submission. So far as report, Ex-39 is concerned, its truthfulness becomes suspect because it is lodged on the say of the brother of the appellant who had gone on to say that the corpse was of an unknown person. PW-1 Kurade has stated that when he went to the well except the members of the family of the accused nobody was present and they told him that corpse was of an unknown person. The corpse was not taken out at 6.00 p.m. when PW-1 Kurade went there. It was taken out when inquest panchnama was AJN 14 made at 7.45 p.m. Colour mentioned in the inquest panchnama was ascertained when the corpse was taken out and therefore that colour will have to be accepted as the colour of the sari found on the corpse rather than the colour mentioned in report, Ex-39 and as deposed to by PW-1 Kurade. PW-3 Balnath Ghule’s refusal to identify the corpse is not surprising because he has admitted in the cross-examination that the appellant is related to him. PW-2 Nitin, brother of the deceased identified the corpse as that of his sister. PW-5 Walubai the mother of the deceased also identified the corpse as that of her daughter. In our opinion, therefore, identity of the corpse as the wife of the appellant can hardly be doubted. 12. It is necessary to go to the post-mortem notes before approaching the depositions of the witnesses. The cause of death is stated to be “cardio-respiratory failure due to asphyxia due to throttling.” Column 17 notes twenty six surface wounds and injuries and column 18(a) states that all injuries are ante-mortem. Left side thyroid cartilage AJN 15 fracture and abrasions around the neck are noticed. Medical certificate, Ex-50 issued by the Medical Officer, Rural Hospital, Yeola (Nasik) states that the injuries received by the deceased on her head below her eyes could be caused by hands and the neck of the deceased was pressed by hands. The certificate further states that the deceased died 24 hours prior to the post-mortem. The post-mortem was done on 1/10/2002 at 3.45 p.m. Therefore, the death must have been caused at about 3.45 p.m. on 30/9/2002. The suggestion made by the defence that the deceased was not staying with the appellant is not well founded. From the evidence of PW-2 Nitin and PW-4 Walubai, it appears that the accused used to ill-treat the deceased. They wanted Rs.40,000/- for purchasing Hero Honda motorcycle. She used to tell them how badly she was treated in the matrimonial home when she used to come to her parents. About one year back, the deceased was driven out of her house by her in-laws after beating her. She lodged a complaint in the police station. A compromise was effected and due to the AJN 16 mediation of the uncle of the appellant, the deceased went back to the matrimonial home. About 2 to 3 days prior to the incident, the deceased was again driven out of the house. She came to her parents’ house. Her father explained to her that he did not have money to give her in-laws. On 27/9/2002, she returned to her in-laws, but kept her son with her parents. PW-2 Nitin has clearly stated that at that time she was staying with her in-laws. This version has not, in any way, been damaged in the cross-examination. It is not even suggested to PW-2 Nitin and PW-4 Walubai that after the compromise the deceased was staying with her parents. Therefore, the prosecution has established that prior to her death, the deceased was staying with the appellant. If the deceased was staying with the appellant, the appellant must explain how the deceased received such injuries. The case of suicide is not consistent with ante-mortem injuries of this nature. Nothing has been brought on record to suggest that anyone else was interested in killing the deceased or this could be the job of someone else. It was for the AJN 17 appellant to explain how the deceased received the injuries. He has failed to do so. Adverse inference needs to be drawn against the appellant. 13. It is now necessary to go the material evidence on record. PW-2 Nitin stated in his evidence that the deceased lived peacefully with the accused for about one year after marriage. Thereafter, all the accused started demanding money for purchasing tempo and for running a hotel. On that count, they started beating the deceased. They used to beat her and drive her out of the house. This happened on two or three occasions. The father of the deceased used to take her back to the house. He used to tell accused 3 i.e. the father-in-law of the deceased that they did not have money to fulfill their demand. But the conduct of the accused did not improve. The deceased lodged a complaint on 30/3/2000 at the police station. Thereafter, there was a compromise. The deceased was sent back to the matrimonial house. However, the appellant started beating her and making a AJN 18 demand of Rs.40,000/- for purchasing motorcycle. Two to three days prior to the incident, the deceased was beaten up and driven out of the house. The deceased came to her parents house and narrated the incident. Her father told her that he did not have money and sent her back. She returned to her in-laws alone. She kept her son with her father. This version of PW-2 Nitin has remained unscathed in cross-examination. The demand of Rs. 40,000/- made by the appellant for purchasing Hero Honda Motorcycle and beating given by him to her has not been challenged in the cross-examination. PW-2 Nitin denied that he had falsely stated that Rs.40,000/- were demanded for purchasing motorcycle. PW-2 Nitin’s evidence establishes the role played by the appellant in this henious crime. Though he did not describe the demand of Rs.40,000/- as related to dowry his complaint Ex-41 bears out this case. Besides, no omissions have been brought on record in his cross-examination. 14. PW-4 Walubai, the mother of the deceased supported AJN 19 PW-2 Nitin. She stated that for about one year after the marriage, the deceased was treated properly in her matrimonial home. Thereafter, the accused started beating her. They used to ask the deceased to bring money for running a hotel and for buying a tempo. The deceased used to come home and tell her woes to her parents. This witness specifically stated that it is the appellant who used to beat the deceased and drive her out. She corroborated PW-2 Nitin on the aspect of compromise. She stated that as per the compromise, the appellant and the deceased were to stay separately. Accordingly, they resided separately for one month. But the deceased came to the parents’ house and told her that the appellant was not staying with her in the separate house and, therefore, she had taken all the utensils to the house of the accused. She also told her that the accused were asking for Rs.40,000/- for purchasing motorcycle. 15. In the cross-examination of PW-4 Walubai, certain AJN 20 minor omissions have been brought on record. It appears that she did not tell the police that the deceased told her that the appellant does not stay with her in the tenanted house but stays in his house in the field and, therefore, she had taken the utensils to her in-laws’ house in the field. She also omitted to tell the police that on two occasions, they had given Rs.10,000/- to the deceased for giving that amount to the appellant. These omissions do not make PW-4 Walubai an unreliable witness. They are minor omissions. On the major aspect, like demand of Rs. 40,000/- and beating of the deceased by the appellant, there are no omissions. She has not been cross-examined on the material aspect. We have no reason to disbelieve her. In our opinion, PW-2 Nitin and PW-4 Walubai are reliable witnesses. 16. Relying on judgments of the Supreme Court, it is contended that the appellant cannot be convicted under Section 304-B of the IPC because assuming some demands of money were made, there is no co-relation AJN 21 between the demands and marriage of the appellant and, therefore, the alleged demand will not fall within the ambit of the term “dowry” as defined under the Dowry Act. It was argued that the witnesses never stated that the demand of Rs.40,000/- was related to dowry. It was also argued that there is no proximity between the incident in question and the alleged cruelty because the parties had entered into a compromise in 2000. We shall, therefore, refer to relevant provisions of law and the judgments cited by the parties. 17. Section 304-B of the IPC reads 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. AJN 22 (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” 18. Section 2 of the Dowry 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 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 the Muslim Personal Law (Shariat) applies.” 19. Section 498-A of the IPC reads as under : AJN 23 498-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 purposes 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