aa-SIBIBilI ^^•'^^^-Si^^^^^^ff^S^f- •".% '-•¥?-^^'^^'•"~:ff-^""J^IC^^ ••''-'.^ 1:1 CF0000058337 i tnu* leaattCnnnBa^ f IM IEE HIC-H CO.URT:CE'_MADEYA PRADESH AT JABAIiPUR^ / GRIMINM.APPE.SI. NO._^i_.GF 199?. • •• APPELLANTS 0*** 1. Vijay Kumar_son of Narmafla Prasad /. ased'about 36 years. 2. Smt. Shanta Bs.i vife of Narmada - Prasad, aged about ?8 years. Both residents of Sota, District Bilaspur, (M.iy). Yersi.i_s BESPONDBNT '*** State of M.P. r'RTK'T?: UJ ^-^EmALJJmBfi-SSCTICaL32li_l2l-2@L^IELSQ^E QF CEIMIJSAL .PRQGSEOBE 19?3. (S \ /' < 7 /' r*< Vijay Kumar anci another ^"'-1 i.^~ '!=j.;C;| j i^r'^^s^' Sfcata of MadF'iya Pradesh snri Pramod Verma learned Senior Counse! sssistea by Shri Surya Kant Mlshra, fo," fche appeiiants Smt. Smita GHai, P.L, forthe State ^" ^*(& in> I" <»uus CRIMZ ^OCEOURE. f a^^, ^. ^y.o.s.^uiij This apoea! !s directed aQainst the ludqment ana order dated 18.07.1995 passed by Second Addirio.iaE Sessions judqe, Biiaspur, in Sessions Triai No. 279/90 convicting tne accused/appeiiants for tne Qffence untier Saction 304-B Qf IPC and sentencing both of thsm to undergo rigorous imDrisonment ror Seven years. 2. Brief facts of the case are that the msrriags of the deceased Mamu was solemnized with appeiiant No.l soms time in the vear 1984 and she died on 28.04.1989 sftsr sustaininq 100% burn in^ij-ies. On tne sams aav at about 5.30 D.m. FIR Ex.P-l was todgeG &y Gomtl Prasad Shukia (PW-l), fattier of the deceasea aUeging in it that the marrjags of his daughtsr Mamu was sotemnlzed w appeiianfc N0.1 flve years back, On 27.04.SQ, a day prior to her death, his younger son Narendra Kumar (P'W-S) nad gone to the house llants to bnna the deceased where she 'nformea that ner husband and motner-in-law used to beat nsr without any reason and they had not sent her asong with his ,^^4.- "'^' //'''""^ \ 1 /y '%. •»....JFJ ^a^ p -2'- son. After getting the news from his son, ne himself went to the house of the appeliants and saw some imuries on the chee.k of his daughter. On query, the deceased had informeci hlm that her husband and mother-ln-law caused the injuries. S-ie asked appellant No.l to allow hlm to take bis aauahter but the same was refused. Thereafter he came back to Bilaspur after consuiting hss daughter. He has ststed that one friend of appeiiant No.l informed him about the burn jnjuries sustalned by the deceased anct when he went to the hospital along with his family members, saw the deceased died. He has stated that 3-4 months prior to the death of the cieceased the appeliant No.l had demanded Rs.10,000 for the marriags of his sister and he assured hjm to Q'lve the same. It is atieged that as his daughter v/as subjected to crueity by her in-laws, she djed after sustalning burn injuries. fofter compietion of Investigatjon, Chaltan was filed on 31.07.1989 for the offence under Sections 304-B and 498-A IPC aaainst four accused perso.ns including fche present appellants, However, the Court below framed charge against them for fche offence under SectlQn 304-B of IPC. its 3. So as to hold e as, has examined 08 witnesses in support of jl of the accused persons were aiso recorded of the Code of Crimjna.1 Procedure In which charges levelled against them and pleadsd and false impllcation in the case. This namely Dr. S. S. Dubey (DW-l) has also been the defence in suDport of jts case. ase. der -s 4, After hearjna the Darties the trial Court has acguitted the co-accused Vinay Kumar and Kumari Mina Sevelled against them but conyicted and present appellants for the offence under section ''W;' '.!"^- '-'-f-T-, '^ •ft. -3- 5. Heard counset for the partles and perusea the mate.na avsilable on record induding thejudgment imj: !Ci, 6. undisputedly, she appellants herein happen to be husband and the mQther-in-faw of the deceased respectivety, According to the leamec! counse! for the appeliants the demand of Rs.10,000 was made by the appellant No.l, for marriage of his sister wtijcn cannot be termed as demand of dowry as defjned unoe.r Prohibjtion Act. He submits that )(y demanded by appellant No.l for d. not as a dowry and jn vjew of the Court in the case of AppaSaheb v. Section 2 of the Rs. 10,000 were al marriage of his sister decision of the Si which st has been held by the Supreme Court that the appellant cannot be convicted under Section 304 of IPC. Ke submits that the other two witnessss namely Rajenara Kumar (PW-2) and Narendra Kumar (PW-8), brothers of the deceased have jmproved their version while csposing <n ths Court and both of them have stated different story. It 'nas been argued that Rajendra Kumar (PW-2) has merety stated aboufc the behavlour of the in-taws and has not stated anythinQ in resoect of demand of dowry and cruelty w'nereas Narendra Kumar (PW-8) has exaagerated his version wnite deposing in the Court whlch is not in consonance with nis case dlary statement. He further submits that where s daughter is subjected to cruelty, the best person would be her mother fco whom a daughter always informs about ths iti treatment, i- meted out to her bv the accused persons. l-1e su.bmits that the case diarv statement of the mother '~t.si ^K.^s deceased has been recorded nor she has been procSuced ir the Court as a witness though after the incidenfc sne had aisc attended the deceased in the hospit.al. .t>St>, t .itA i, v[y/ t ifc -4- 7. On the other hand supportlng has been argued by Smt. Ghai. learned counsel for the State that from the evidence it is apparent that the deceased was subjected to cruelty by her in-laws and tDis i-act has oeen proved by Gomti Prasad Shukla (PW-1), Rajendra Kumar (PW-2) and Narendra Kumar (PW-8), She submits that the deceased died within 7 years of her marriage in a suspjcjous condition and therefore the convietion of the appeliants is in accordance wlth law. 8. Gomti Prasad Shukia (PW-1), father of the deceased has stated that marriaae of the deceased was solemnized witl- 8-9 years back and a day prior to the incident he had sent his younger son Narendra Kumar to take the deceased and after returning, his son informed him that he was not permitted fco take the deceased and her in-taws asked him to come after 2-3 days to take her. He has stated that his son had also informed hlm that in hls presence the appetl.ants siapped the deceased and therefore on the same dav he went to Kota to take the deceased but she was nct permitted to meet him anti after talklng to his grand son for about 2-3 minutes he ca.me back. He has stated that the appeltant No.l had coms to the bus stand on his motor o/cle to see him off and waited for about two hours til! the arriva! of the bus. On the second day at about 6 a.m. on receiving iRformation from Dharmath hospital, Bilaspur that the deceased is hospitatized on account of burn injuries sustained by her,. he went to the hospitai atong wlth other famiiy members and saw the dsceased in a burnt condition. t-lis wife l.e. mother of the deceased poured two drops Ganga Jal (hoty water) in her moutli thereafter she died. He has statad that when his son-in-lav*' had gone to the Dus stand to sae him off, he demanded Rs.10,000 for marriage of hls sister and this witness assured him to give the said amount 'if fehe marriaae .' ^-L- .': ..^. ,,--*,. ' 's> ^ ''iBS.^^' "'^°te.a-i»;«'T ^"~ ' ^^ / -s' £S of his sister was settled. According to behaviour of in-laws of the deceased was oood with whenever she visited his house she used to inform that the behaviour of her mother-ln-law and sjster-jn-law vtfas not good with her. He has further stated that the father-in-law of the deceased died because of cancer on the ser-ond day c'f the blrth of her second child and her moffier-in-taw used to say that on account of her, father-in-iaw of the deceased died. A day pnor to the inddent when he had gone to the house of the appeltants, from window the deceased asked him to take her. He has stated at the deceased visited his house frequently and it was her hus&and who used to take her back, He has stated that he himself was resdy to nelp the appeltant No.l for the marriage of his sister. According to him, it is incorrect to say that Rs. 10,000 was demanded by the appellant No.l about 3-4 months prior to the date of incidenfe and when he was confronted with his case diary statement he has stated that the case diary statement ls correct. He has spedfically stated that but for the dsmand of RS.IO..OOO no demand whatsoever was raised for any amount or article. t-1e has clarifled that after marriage of his daughter 5 timss he had gone to the house of the appellants anc whenever he or his sons had gone to take the deceased she was aiways sent aiong with them. According to h\m, he does pot remsmber that at the time of lodging the report he had informed fche pollce that he was not permitted to mset the deceased and from the window the deceased was saying to ta.ke her by way of qesticulation. Rajendra Kumar (PW-2), the brother of the deceased has stated that on the date of incident when he was about to go to take the deceased from her in-laws house,. he received telephonic information that after sustaining burn iniuries the deceased is admitted in the hospital and then he, tiis mother. •-'i'SS^-' : ^ -6- father and other family members went to the hospital to see the deceased. His mother poured some drops of Gangajal sn the mouth of the deceased and thereafter the deceased breathed her last in their presence. Acccrding to this witness, tlll the father-in-law of the deceased was alive, the behaviour of her in-laws was good with her but after his death, appatlant No.2 i.e. mother-in-Jaw of the deceased used to taunt Her by sayjng that various articles were not givsn. He has further stated that about two months prior to the death of the deceased he had brouaht her to his house as she was under tension because she was being subjected to harassment by saying that she used to put more or less salt,. did not use to work properly and tetl tie. Me has further stated that about 3 months prior to the inddent when he had gone to the house of the appellants, in his presence, two sisters and younger brother of the appellant No.l had beaten the decsased by puiling her hairs and the deceased was asking him to take her. At that point of time the mother-in-law of the deceased said that if the deceased went along wlth his brother, she would not be permitted to come back in her house and after making understand the entire family he had brought his sister along with him. According to this witness, earljer also her sister was subjected to this type of behaviour and whenever he asked the appellant No.l about tne same he used to say that he may not tell anything against his mother, brother, and sisters and the deceased v-'ould have to bear all these, According to him, a day prior to the date of incident when his younger brother Narendra (PW-8) had gone to take his slster, she was not sent with him and after retuming his brotner started crying by saying that the deceased was in difficulty in her in-laws house and he had also seen the injun/ mark on her face. Thereafter his father had go.ne to take the deceased he too came back without tak.ina her. He has adr L7 !./ -7- the facfc that In his presence twice h's sister was beaten bu thls fact was not dlsciosed to anyone thinkjno that such minor accused portion place in the ( their U ID.Iflll j!v. Me has stated if t th< deoartment or food de.Dartment. appejiants. Accord.ing mark of imury on the 4) js a seizure witn alleged to have been filed aiong with the r performed the Post EX.-P-5 -3} ss a w.itness to the. notice of has not stated anything againsfc tne to this witness, ne could not find any "V EJf-- 'tt G.B. Sinah t.wo letters is have not been 5) v ? i au witness of Ex. P-6 burn sari were sei mortem examination of the deceased vide that the deceased d.ied because of burn her. Bishnu Prasad (PVV-6) is a seizure whtch pieces of bangtes, match box and im the spot. R. K. Tiwari (PW-7), the »ssupported the prosecutson case. deceased has stated that the behavjour of the in- deceased was not good wlth her and they used to harass her. and other articlss from the deceased. Abo-ut 15 days prior to the date of .incjdent, a. tape recorder was given to the deceased and when Rs. 5^000 were demanded by appeltant No.2, the same was not given to the deceased as they had no such monsy. He has stated that two aays prior to ths sncident when he had aQne to take his sister and maae a request to appellant No,l to send r>er,. the appeiiant No.l demanded Rs.5,000 and on belng not given the said amount he was nofe permitted to take the deceased along with 'nsm. ,^S3"%' /'/^^ \ S ' 't^TtWfSS"'^'' ''!: 1 s •^ .^^i /•r~~^ ,"''" /' £/7 £.' Thereafter he returned back to Bilaspur and after two days rte received information about the death of the deceased. He nas further stated that the accused persons used to beat the deceased and whenever the deceased would visit his house she informed about the same. From Paragraphs - 4, 5 & 6, there appears to be materia! contradictions and omissions in the statement of this witness from that of his case diary statement. Me has categorically denied the fact that appeilant No.2 used to say the deceased that on account of her second son she had iost her husband. According to him.. the demanct of tape recorder and Rs.5,000 v^as narrated by him to the police and if the same has not been recorded he coutd not tell the reason. Like wise he had informed the police about the demand of other articles and if the same has not been recorded he could not teli the reason. Me has further statecf that the demand as made by the accused persons about 2-3 days prior to the date of incident was also informed by hlm to the police and if the same has not been recorded he could not tell the reason. He admits that he never made any correspondence with the accused persons about their cruei behaviour nor any report was lodged by him. He furthe admits that no efforts were made to resolve the dispute through neighbours or elderly persons. 9. In the case in hand, there are three important witnesses namely Gomti Prasad (PW-1), Rajendra Kumar (PW-2) and Narendra Kumar (PW-8) and if the statements of these three witnesses are compared, three different stories have been given by them. Gomti Prssd (PW-l) fathsr of the deceased has stated that Rs.lO/000 were demanded by appellant No.l for marrlage of his sister but Rajendra Kumar fpw-2) has not alieged anything in respect of any demand made by the accused persons whereas Narendra Kumar (PW-8) has gone to the extent of making aHegation of demand of tape '^. "V /"^. ( '?"'/ recorder, cash and other artides and according to him Rs.5,000 were demanded by appeflant No.2, There appears lot of snconsistencies in the statement of these three witnesses which create doubt as to whether any such demand was made by the accused persons. Even in respect of the alleged cruelty, these three witnesses have given different stories. As per the statement of Ciomtj prasad (PW-l) and Rajendra Kumar (PW-2), a day prjo.r to the date of jncident Narendra Kumar (PW-8) had gone to take the deceased but according to Narendra Kumar he had gone to take the deceased 2 days prior to the incident. Gomti Prasaci (PW-l) jn paragraph-3 of his evidence hss stated t.hat Rs. 1Q,OOU were demanded by appellant NQ.I for marriage of his s.ister whereas in paragraph-10 he has stated that he hjmself was willing to hetp the appellant No.l for marriage of his sister. In the case of AppaSaheb v. State of Mahraslitra reported i.n 2007 AIR SCW 456 it has been held by the Supreme Court as under: 9. Two essentfal ingredients of Section 304-B IPC, apartfrom others, are (i) deatfi ofwoman is caused by any burns or bodily imury or occurs othefwise than under nonrisl circumstances, ai'id (ii) woman is subjected to cruelty or harassment by her h'usband or any reladve of her husband for, or in connection with, any demand for "dowry". Tne explanation appended to sub- section (1) of Section 304-B IPC says that "dowry" shali have the sarne rneaning as in Section 2 ofthe Dowry Prohibition Act, 1961, Section 2 of the Dowry prohtbition Ac£ reads as under:"2. Definition of 'dowry' - In this Act, 'dowry' means any propeity or vaiuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to tne other party to the marnage; or (b) by the parents of either party to a marriage or by any oUi.er person, to either pariy to the marriage or to any other person.. [W 10- at or before or any time after the marriaoe in connection w!th the ms'nisQe of the said pas'ties, but does not include dower or mahr in the case f-cf ,t— JS»jE*it ^»- ff,~ff^ t^.S?-- or persons co wnom cne musam personai iaw (Shariat) appljes;" Jn vtew of the afvresaid deflnit'on of the i'yo/tf dowsy any pi'openy or vaSuable seajrity dis'ectl'y' or indti'ectSy at or before or sny tiiTie after the marnaae and ln connectmn witti the msrrisge of the ssid paities. Therefors, tne giving or taking of property or valuabfe secunty must have some connection with ths msrnage. of the parties and a correlation between ffie giv/ng or takii of property or valuable secuiity with the marnage of the psrtles is essential. Being a penai provision it Ass to be strick'y construed. Dowry is a fairly well-known sccial custom or pf'actice in India. It iis well-settled pnncipfe of interpretation of statute that if the Acc is passed .^-"I'A-frr -^-t^ .^,^.-, f^,,, with referencs to a partic'uiar trsde, 'ousiness or transaction and •v'/ords are used which everybody con'v'ei'sant with tf'iat trade, businsss or transaction knows or understands ta have a particular rneanjng in 'st, then the vv'ords sre tc be asnstrued as having that particular mean'ng. (See Union of India v. Garware Nyfans Ltd. And Chemical snd Fibres of Inclia Ltd. V. Union of Indsa.) A demand for money on account of soiTie financial stringency or for meetlng some urgent domestic expenses or for purchasiny manure cannot be termed ss a cfemand for dowry as the said word is nQrmalS'y understood. The evldence adduced by the prosecution does not therefore, show that any demancf for dowry as defined in Section 2 of the Dowry Prohlbition Act was msde tj'y' the appellants as what wss sliegedly sskad for was some money for meeting domestic expenses and for purchssing manui"e. Since an essent/al ingredie.nt of Section 3Q4-B IPC viz. demand for dowry' is not estsbijshed, the convfction of ffie appellants cannot be sustainea. 10. Considering the legal position, facts of the present case record |t <s DV appellant aDoeilant No.2. Further the statemenfes icult to say 1 and his mother evidsnce ava vrv vvas a-h ! '// .' of Gomti Prasad (PW-1), Rajendra Kumar (PW-2) and Narendra Kumar (PW-3) are self contradjctory to each other and they have put forth different stories on different occasions. In the FIR, Gomti Prasad (PW-1) has stated that when a day prior to the jncident he had go.ne to the house of the appellants to take his daughter, saw jnjuries on her face and on being asked she had informed him that the same was caused by her husband and mother-in-iaw whereas improving his version he has stated m his Court statement that when he had gone to take his daughter, he was not permitted to meet her and while he was returning from the window the deceased requested him to take her by gestures. Further in the FIR Gomti Prasad (PW-l) has stated that when he aiong wjth his famity members went to the hospital, saw the deceased died whereas this witness and his son Rajendra Kumar in their court statement have stated that after reaching the hospitai, the mother of the deceased poured some drops of Gangajat in the mouth of the deceased and thereafter she died. Apart from the above facts the most import witness in tnis case could have been the mother of the deceased who has been neither cited nor examined as wltness. Rajendra Kumar (PW-2) in his evidence has stated that the deceased was subjected to harassment as she used to put more or less salt, teil lie whereas Narendra Kumar (PW-8) has stated a different story. Rajendra Kumar (PW-2) has made allegations agsinst sister-in-law and brother-in-law of the deceased that they used to beat the deceased however both the accused have already been acquitted by the trial Court, According to Rajendra Kumar, it is the appellant No-2, mother-in-law of- the deceased who used to harass and taunt the deceased oy saying that various articles were not given to her whereas no such allegation has been made by Narendra Kumar (PW-8), Furthermore as oer t.he statement of Raiendra Kumar (PW-2), A, brother-in-law of the appellant No.l knew the fact that the deceased was under tension and he took the deceased alono with him to Durg but no such statement has been given by Gomti Prasad (PW-l) and Narendra Kumar (PW-8), 11. Considering the inconsistency in the statement of Gomti Prasad (PW-1), Rajendra Kumar (PW-2) and (PW-3) and the facts as broadly dlscussed finds it difficulty to uphold the conviction of that being so the benefit of doubt must go appeilants and they are entitled for acquittoj. thls CoL(.rt apDelSants a,hd 12. Accordingly, the appeal is alt dated 18.07.1995 convictmg and sentencing the appellants under Section 304-B of IPC is hereby set aside. Appellants are acqultted of the charge levelled against them. Since the appellants are on bail, their bail bonds stand discharged. A^____ Sd/- Pritinker Diwaker Judge