Accused are entitled to a benefit of doubt in a criminal case: Bombay High Court

 on 08 07 2021 on 22 03 1 CRI APPEAL 134.2014 &135.2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.135 OF 20141.Shri Sharad Ashok Thange age 25 years occ. Agril R o. Barhanpur Tq. Shevgaon District Ahmednagar. ..Appellant.. for purchasing a motorcycle. It has alsoalleged that on 13.9.2012 when the complainant hasinvited all the accused in his house for Dhonde Feast appellant accused no.1 Sharad has made a demand ofone Tola Gold Ring however due to poor economicalcondition complainant PW 1 Raosaheb could not fulfllthe said demand. However he has promised that whenhe will fetch good yield from his land said ring will begiven. All the accused left the house of the complainantalongwith Kalindi however while leaving the housedeceased Kalindi was crying. On the very next day i.e.on 15.9.2012 deceased Kalindi informed to her brother on 08 07 2021 on 22 03 4 CRI APPEAL 134.2014 &135.2021.odtPW 3 Dada Dukle on phone that as golden ring was notgiven to her husband appellant accused he hasseverally assaulted her and subjected her to cruelty. Onthe same day at about 3.00 p.m. Sarpanch of villageAvane informed to PW 3 Dada Dukle on phone that hissister deceased Kalindi died due to burns in the houseof the accused. Accordingly PW 1 Raosaheb his wifePrayagbai and other relatives rushed to the house of theaccused at Barhanpur Tq. Shevgaon DistrictAhmednagar. They have found that deceased Kalindiwas totally in burnt condition and her dead body waslying in the house of the accused. They have carriedsaid dead body to the Civil Hospital Shevgaon. PW 1Raosaheb has expressed his suspicion that sincedemands of Rs.50 000 for purchasing the motorcycleand one Tola gold ring were not satisfed his daughterwas subjected to cruelty on that count and accordingly deceased Kalindi had committed suicide by settingherself on fre.c]On the basis of his complaint crime bearingno.2012 was registered under section 304 B on 08 07 2021 on 22 03 5 CRI APPEAL 134.2014 &135.2021.odt498 A 323 504 r w 34 of IPC with the Shevgaon PoliceStation Tq & District Ahmednagar. PW PSI Bhande hasinvestigated the crime. He has taken papers ofaccidental death. The I.O. has recorded statements ofthe witnesses. Appellants accused came to be arrestedin connection with the crime seized articles were sentto the C.A. Thus on completion of the investigation PW5 PSI Bhande submitted the charge sheet againstappellants accused persons.3.The learned Additional Sessions Judge Ahmednagar has framed the charge against appellants accused under section 498 A 304 B 306 323 504 34of IPC. All the accused have pleaded not guilty to thecharges and claimed to be tried. The defence of all theappellants accused is of total denial. According tothem they have not demanded anything and deceasedKalindi was not subjected to cruelty. According to them fnancial condition of deceased Kalindi was sound and as such deceased Kalindi was not in a habit of doingwork on daily wages basis. Appellant accused no.1Sharad is having his own motorcycle and as such there on 08 07 2021 on 22 03 6 CRI APPEAL 134.2014 &135.2021.odtwas no reason for him to make a demand for purchasingthe motorcycle. Appellant accused no.1 Sharad hasnever demanded gold ring. It is further explained thatdeceased Kalindi died due to accidental burns and PW 1Raosaheb and his family members have falselyimplicated them due to anger and vengeance. 4.Prosecution has examined seven witnesses tosubstantiate the charges levelled against accusedpersons. After the prosecution evidence was over incriminating evidence appearing againstappellants accused was put to them in theirexamination under section 313 of Cr.P.C.5.The learned Additional Sessions Judge Ahmednagar by judgment and order dated 26.2.2014 inSessions Case No.3812 convicted theappellant accused no.1 Sharad Thange for the offencepunishable u s 304 B of IPC and sentenced him tosuffer imprisonment for life and to pay a fne ofRs.5 000 in default of payment offne to suffer R.I. for six months. The learned on 08 07 2021 on 22 03 7 CRI APPEAL 134.2014 &135.2021.odtAdditional Sessions Judge Ahmednagar has convictedappellants accused no.2 Ashok Thange andappellant accused no.3 Bhimabai Thange for theoffence punishable under section 304 B of IPC andsentenced them to suffer R.I. for seven years and to paya fne of Rs.5 000 each in default of payment of fne to suffer R.I. for six months. The learned AdditionalSessions Judge Ahmednagar has convicted all theappellants accused for the offence punishable u s 498 A of IPC and sentenced them to suffer R.I. for threeyears and to pay fne of Rs.2 000 each in default ofpayment of fne to suffer R.I. for six months. Both theSentences are directed to be run concurrently. TheAdditional Sessions Judge Ahmednagar has alsodirected that all the accused are entitled for set off asdetailed in the operative part of the order clause no.5and 6 respectively. 6.Being aggrieved by the same theappellant accused Sharad Thangehas preferred appeal no.1314 andappellants accused no.2 Ashok Thange and 3 Bhimabai on 08 07 2021 on 22 03 8 CRI APPEAL 134.2014 &135.2021.odtThangehave preferredcriminal appeal no.1314.7.The learned Senior counsel Mr. Sapkal submitsthat the impugned judgment and order of conviction iserroneous illegal and contrary to the provisions of law.The learned Judge of the trial court has not appreciatedthe prosecution evidence in its proper perspective. Thelearned senior Counsel submits that there was noevidence that soon before the death deceased Kalindiwas subjected to cruelty or harassment for or inconnection with any demand or dowry. The explanationappended to sub sectionof Section 304 B of IPC saysthat “Dowry” shall have the same meaning as in section2 of the Dowry Prohibition Act 1961. In terms ofsection 2 of the Dowry Prohibition Act 1961 “dowry”means ‘any property or valuable security given or agreedto be given either directly or indirectly by one party to amarriage to other party to the marriage at or before orany time after the marriage in connection with themarriage of the said parties. The demand of a propertyor valuable security must have some connection with on 08 07 2021 on 22 03 9 CRI APPEAL 134.2014 &135.2021.odtthe marriage of the parties. This being a penalprovision it has to be strictly construed. 8.Learned senior counsel Mr. Sapkal submits thatPW 1 Raoshaeb DukalePW2 Vishnu Kisan TekulePW 3Dada Raosaheb Dukalearethe material witnesses. These three prosecutionwitnesses have not given any details of the demands.They have not given the details as to when the accusedpersons have made a demand of Rs.50 000 for purchasing the motorcycle. Learnedsenior counsel Mr. Sapkal submits that at the time ofDhonde Feast which is usually come in the month ofSeptember as per the evidence of these three witnesses on 13.9.2012 accused have demanded gold ring of oneTola however there is no reference till the said demandof gold ring was made about the earlier demand ofRs.50 000 for purchasing the motorcycle. Theseprosecution witnesses have not stated anything as towhat happened to the said demand of Rs.50 000 forpurchasing the motorcycle and as to whether said on 08 07 2021 on 22 03 10 CRI APPEAL 134.2014 &135.2021.odtdemand was continued. Learned senior counsel Mr.Sapkal submits that as per the evidence of thesewitnesses deceased Kalindi had made a phone call toPW 3 Dada on 15.9.2012 and informed to him thataccused had beaten and assaulted her for failing topresent him a gold ring. Learned senior counselsubmits that in a Dhonde Feast which is wellrecognized festival in the region gold ring and newclothes are offered to the son in law. Even assumingthat accused persons have demanded gold ring which isa part of the rituals said demand cannot be equatedwith “dowry demand as defned under section 2 of theDowry Prohibition Act 1961”. There are no allegationsof ill treatment on account of non fulfllment of thedemand of Rs.50 000 for purchasing the motorcycle.Learned senior counsel Mr. Sapkal submits thatevidence is lacking to the extent that deceased Kalindiwas subjected to cruelty as defned under section 498 Aof Indian Penal Code on account of demand ofRs.50 000 for purchasing the motorcycle. Learnedsenior counsel Mr. Sapkal further submits that even on 08 07 2021 on 22 03 11 CRI APPEAL 134.2014 &135.2021.odtassuming for the sake of discussion that there was ademand of Rs.50 000 for purchasing a motorcycle said demand cannot be also equated with the dowrydemand as defned under section 2 of the DowryProhibition Act 1961. It has no connection directly orindirectly with the dowry. It is not the prosecution caseand none of the prosecution witness has deposed thatmotorcycle was a part of dowry and since it was notgiven at the time of marriage accused after marriage have demanded Rs.50 000 for purchasing themotorcycle. Learned senior counsel Mr. Sapkal submitsthat there is no evidence that deceased Kalindi hadcommitted suicide due to the ill treatment extended toher on account of the non fulfllment of the saiddemands. Learned senior counsel Mr. Sapkal submitsthat in view of the same the presumption undersection 113 B of the Evidence Act is not attracted.Consequently dowry death cannot be presumed in thefacts and circumstances of the present case. on 08 07 2021 on 22 03 12 CRI APPEAL 134.2014 &135.2021.odt9.Learned senior counsel Mr. Sapkal in order tosubstantiate his contentions placed reliance on thefollowing judgments : 1.Ramu @ Rameshwar s o Ramkishan Aathave Vs.State of Maharashtra reported in 2017 SCC onlineBom.6558.2.Vijay Purushottam Surushe and anr. Vs. State ofMaharashtra reported in 2011Bom.C.R.120.3.Appasaheb and anr. Vs. State of Maharashtrareported in AIR 2007 Supreme Court 763.4.Vipin Jaiswal Vs. State of A.P. reported in 2013Cri.L.J. 2095.5.Modinsab Kasimsab Kanchagar Vs. State ofKarnataka and another reported in AIR 2013Supreme Court 1504.6.Girish Singh Vs. State of Uttarakhand reported in2019 DGLS939.7.Kanchanben Purshottambhai Bhanderi Vs. State ofGujarat reported in AIR 2015 SC315.8.Durga Prasad and anr. Vs. State of M.P. reported in2010 AIR SCW 3673.9.Biswajit Halder alias Babu Halder and ors. Vs.State of W.B. reported in 2007 Cri.L.J. 2300.10.Learned APP Mr. S D Ghayal submits that theprosecution has proved that the death of deceasedKalindi occurred at her matrimonial home otherwise on 08 07 2021 on 22 03 13 CRI APPEAL 134.2014 &135.2021.odtthan under the normal circumstances. Prosecution hasexamined PW 4 Dr. Dipak Pardeshi who has conductedpostmortem examination on the dead body of thedeceased Kalindi. He has noticed 100% burn injurieson all over the dead body of the deceased Kalindi.Moreover while examining the stomach and itscontents doctor Pardeshi has recorded about 500 CC ofSemi digested liquid with smell of poisonous substancepresent. According to him smell of poisonoussubstance was not due to the event of burning of thevictim and injuries all over the body but it wasindependent and may be due to poisonous food. He hasreserved the viscera for the purpose of analysis throughC.A. The C.A report exh.27 28 and 29 indicatesdetection of organophosperous insecticide Dimethoate(Rogar) detected in article no.1. Plastic bottle containingpieces of stomach of small intestine and large intestine.PW 4 Dr. Pardeshi has given fnal cause of death as“shock due to burn associated with poisoning.” LearnedAPP submits that prosecution has proved beyond on 08 07 2021 on 22 03 14 CRI APPEAL 134.2014 &135.2021.odtreasonable doubt that death of Kalindi occurredotherwise than under the normal circumstances. 11.Learned APP submits that the evidence of PW1Raosaheb PW 2 Vishnu Tekule and PW 3 Dada isreliable trust worthy and inspiring the confdence.Learned APP submits that in case of dowry death thecircumstantial evidence also plays an important roleand inference can be drawn on the basis of suchevidence. Learned APP submits that PW 3 Dada whohappened to be the brother of deceased Kalindi hasdeposed that deceased Kalindi was treated well for aperiod of one month after the marriage. Thus inferencecan be drawn that demand of Rs.50 000 forpurchasing the motorcycle was made after said period ofone month. Thus considering the short span ofcohabitation i.e. total period of eight months saiddemand would constitute to be in connection with themarriage and it would be a case of demand of dowrywithin the meaning of section 304 B of IPC. LearnedAPP submits that on the date of the death itself deceased Kalindi had made a phone call to her brother on 08 07 2021 on 22 03 15 CRI APPEAL 134.2014 &135.2021.odtPW 3 Dada and informed to him about ill treatmentbeing extended to her on account of non fulfllment ofthe demand of gold ring. Learned APP submits that theingredients of section 304 B of the Indian Penal Codestand proved by the prosecution. Prosecution hasproved death of deceased Kalindi occurred within eightmonths of her marriage otherwise than under thenormal circumstances at her matrimonial home and also proved the dowry demand so also the cruelty asdefned under section 498 A of the IPC. Learned APPsubmits that the presumption under section 113 B ofthe Evidence Act stands attracted. The Court thus shallpresume that accused had caused dowry death. Thetrial court has correctly appreciated the evidence and byapplying the presumption under section 113 B of theEvidence Act rightly convicted the appellants accusedpersons.12.Learned APP submits that the appellants accusedduring their examination under section 313 of Cr.P.C.have given false information Exhibit 62. According tothe appellants accused persons deceased Kalindi had on 08 07 2021 on 22 03 16 CRI APPEAL 134.2014 &135.2021.odtsustained accidental burns. However considering thecause of death as 100% burns coupled with thepoisonous substance rule out the possibility ofaccidental burns. Learned A.P.P. submits that death ofdeceased Kalindi is a custodial death. In terms ofprovisions of section 106 of the Indian Evidence Act the burden of proving the fact which is especially withinthe knowledge of the accused shifts upon them accusedhave miserably failed to discharge the said burden. Thisis required to be treated as an additional circumstanceagainst appellants accused persons. Learned APPsubmits that there is no substance in these criminalappeals and the criminal appeals are liable to bedismissed.13.Learned APP in order to substantiate hiscontentions placed reliance on a case Pawar Kumar andothers Vs. State of Haryana reported in AIR 1998Supreme Court 958.14.Prosecution has examined PW 4 Dr. PardeshiDipak Harischandra attached to Rural Hospital on 08 07 2021 on 22 03 17 CRI APPEAL 134.2014 &135.2021.odtShevgaon District Ahmednagar. On 15.9.2012 at about09.00 p.m. Dr. Pardeshi has conducted postmortemexamination on the dead body of deceased Kalindi. PWDr. Pardeshi has noticed 100% burn injuries all over thebody of deceased Kalindi. He has further noticedredness over right leg lower half. According to PW 4 Dr.Pardeshi it is antemortem and might be occurred at thetime of event of burning. He has further explained thatsaid injury indicates that at the time of burningdeceased was alive. In addition to the same he hasfound 500 CC of semi digested liquid in the stomachwith smell of poisonous substance. According to PW 4Dr. Pardeshi smell of poisonous substance was not dueto event of burning of the victim but it was independentand might be due to poisonous food. CA report Exh.27 28 and 29 were also shown to him. CA report indicatesdetection of organophosperous insecticide Dimethoate(Rogar) in article no.1. PW 4 Dr. Pardeshi has given fnalopinion of cause of death as ‘Shock due to burnassociated with poisoning’. We fnd it diffcult to acceptthat deceased Kalindi had consumed the poison and on 08 07 2021 on 22 03 18 CRI APPEAL 134.2014 &135.2021.odtthereafter set herself on fre. PW 4 Dr. Pardeshi hasstated in his cross examination that consumption ofpoison may be occurred accidentally or administrationby any other. However according to him so far as burninjuries on the person of the deceased Kalindi areconcerned those are antemortem in nature. PW 4 Dr.Pardeshi has not given clear opinion as to whetherdeath of Kalindi is homicidal or suicidal. However theprosecution has proved beyond doubt that deceasedKalindi died in her matrimonial home due to burns andotherwise than under the normal circumstances. Thelearned senior counsel Mr. Sapkal has also not disputedthe same. 15.It is the specifc case of the prosecution thatdeceased Kalindi ended her life because of theharassment caused to her by the accused for or inconnection with the demand of dowry. It is therefore essential to briefy examine the evidence of theprosecution witnesses. PW 1 Raosaheb PW 2 Vishnuand PW 3 Dada who are the material witnesses on thispoint. PW 1 Raosahebhas on 08 07 2021 on 22 03 19 CRI APPEAL 134.2014 &135.2021.odtdeposed that accused told Kalindi to bring Rs.50 000 for motorcycle. PW 1 Raosaheb has further deposedthat on 13.9.2012 he had called accused and Kalindi forDhonde Feast. Kalindi’s husband Sharad put demand ofgold ring of one Tola. He refused to meet the demanddue to drought. Accused returned with Kalindi to theirhome at Barhanpur. On 15.9.2012 at about 10.30 amKalindi informed on phone that accused started beating assaulting and harassing her for fulflling to meet thedemand. On 15.9.2012 at about 03.00 p.m. SarpanchDada Avhane had informed to Raosaheb on phone thatKalindi died due to burning.16.PW 2 Vishnu Tekulehas deposedthat after marriage for one month there was a peacefulmarried life. Accused then started demand ofRs.50 000 for motorcycle and started pestering in thefulfllment of the said demand. Deceased Kalindi whencame to her maternal home narrated about theharassment by the accused. Accordingly he himself PW 2 Vishnu one Machindra More and PW 1 Raosahebwent to the house of the accused. They had convinced on 08 07 2021 on 22 03 20 CRI APPEAL 134.2014 &135.2021.odtthe accused that they were unable to meet the demanddue to famine. On 13.9.2012 accused were called forDhonde feast. At the time of leaving accused no.1asked the complainant and deceased Kalindi to presentgold ring. They have convinced Kalindi and accused.Kalindi was crying as accused abused her in theirpresence.17.PW 3 Dadahas deposedthat marriage of Kalindi was performed gracefully withthe present of dowry of Rs.1 Lakh and other gadgetsand utensils. Deceased Kalindi started residing withthe accused. For one month after marriage married lifewas peaceful and her harassment started thereafter.PW 3 Dada deposed that on her visit to their homeKalindi was asking to pay Rs.50 000 for her husbandSharad. PW 3 Dadafurtherdeposed that thereafter he alongwith his father PW 2Vishnu Tekule Bhimrao More went to the house of theaccused to give him the understanding. He has deposedabout the incident of 13.9.2012 when they had invitedthe accused for Dhonde feast. He has deposed that PW on 08 07 2021 on 22 03 21 CRI APPEAL 134.2014 &135.2021.odt1 Raosaheb presented clothes to accused and accusedno.1 Sharad asked him to present him a gold ring. Theyhave refused the demand due to their inability.Therefore accused no.1 abused Kalindi and they sentKalindi with the accused while she was weeping. On15.9.2012 at about 10.30 a.m. deceased Kalindi talkedto him on phone and informed that accused beaten andassaulted her for failing to present gold ring. 18.Though prosecution witnesses have not given theexact date time and place as to when the accuseddemanded an amount of Rs.50 000 for purchasing themotorcycle however deceased Kalindi was treated wellfor a period of one month after marriage and that therewas a demand of Rs.50 000 for purchasing motorcycleafter said period of one month. 19.There are four essential ingredients of section 304 B of IPC. i.Where the death of a woman is caused by anyburns or bodily injury or occurs otherwise thanunder the normal circumstances. on 08 07 2021 on 22 03 22 CRI APPEAL 134.2014 &135.2021.odtii.Such death should have occurred within sevenyears of her marriage.iii.She must have been subjected to cruelty orharassment by her husband or any relative of herhusband soon before death.iv.Such cruelty or harassment should be for or inconnection with the demand for dowry.20.In terms of the explanation to section 304 B term“Dowry” shall have the same meaning as in section 2 ofthe Dowry Prohibition Act 1961. Section 2 of the DowryProhibition Act 1961 reads as under : 2. “Dowry” means any property or valuablesecurity given or agreed to be given eitherdirectly or indirectly [ inconnection with the marriage of the saidparties but does not include] dower or mahr inthe case of persons to whom the MuslimPersonal Law applies. on 08 07 2021 on 22 03 23 CRI APPEAL 134.2014 &135.2021.odt21.It is thus clear that “Dowry” means any propertyor valuable security given or agreed to be given asdirectly or indirectly at or before or any time after themarriage and in connection with the marriage of thesaid parties. It is thus necessary that giving or takingof the property or valuable security must have someconnection with the marriage of the parties. It is wellsettled that being a penal provision the same has to bestrictly construed. 22.In a case Ashok Kumar Vs. State of Haryanareported in12 SCC 350 in paragraph no.14 and19 the Supreme Court has made followingobservations : 14. The expressions “or any time after marriage” and “inconnection with the marriage of the said parties” wereintroduced by the amending Act 684 and Act 43 of1986 with effect from 2 10 1985 and 19 11 1986respectively. These amendments appear to have been madewith the intention to cover all demands at the time beforeand even after the marriage so far they were in connectionwith the marriage of the said parties. This clearly shows theintent of the legislature that these expressions are of widemeaning and scope. The expression “in connection with themarriage” cannot be given a restricted or a narrowermeaning. The expression “in connection with the marriage”even in common parlance and on its plain language has tobe understood generally. The object being that everything which is offending at any time i.e. at before or after themarriage would be covered under this definition but the on 08 07 2021 on 22 03 24 CRI APPEAL 134.2014 &135.2021.odtdemand of dowry has to be “in connection with themarriage” and not so customary that it would not attract onthe face of it the provisions of this section.19. We have already referred to the provisions of Section 304 Bof the Code and the most significant expression used in thesection is “soon before her death”. In our view theexpression “soon before her death” cannot be given arestricted or a narrower meaning. They must be understoodin their plain language and with reference to their meaningin common parlance. These are the provisions relating tohuman behaviour and therefore cannot be given such anarrower meaning which would defeat the very purpose ofthe provisions of the Act. Of course these are penalprovisions and must receive strict construction. But eventhe rule of strict construction requires that the provisionshave to be read in conjunction with other relevantprovisions and scheme of the Act. Further the interpretationgiven should be one which would avoid absurd results onthe one hand and would further the object and cause of thelaw so enacted on the other.23.It is clear from the observations made by theSupreme Court that expression “in connection with themarriage” cannot be given a restricted or narrowermeaning. “In connection with the marriage” even in acommon parlance and on its plain language has to beunderstood generally. The object being that everything which is offending at any time i.e. before or after themarriage would be covered under this defnition butthe demand of dowry has to be “in connection with themarriage” and not so customary that it would notattract on the fact of it the provisions of this Section. on 08 07 2021 on 22 03 25 CRI APPEAL 134.2014 &135.2021.odt24.The Hon’ble Supreme Court in the above cited casehas referred one case of Ran Singh Vs. State of Haryanareported in4 SCC 70 and Satvir Singh Vs. Stateof Punjab reported in8 SCC 633 wherein it isheld that customary payments in connection with birthof a child or other ceremonies are not covered within theambit of “dowry”. 25.In a case of Appasaheb and another Vs. State ofMaharashtra reported in9 Supreme Court Casespage 721 it is held that demand of money on account ofsome fnancial stringency or to meet some urgentdomestic expenses for purchasing manure cannot betermed as demand for dowry as said word is normallyunderstood.26.In the instant case merely one month after themarriage deceased Kalindi had informed to her parentsto give Rs.50 000 to her husband for purchasing amotorcycle. The expression “in connection with themarriage” cannot be given a restricted or narrowermeaning. We are aware of the mind set up of the people on 08 07 2021 on 22 03 26 CRI APPEAL 134.2014 &135.2021.odtof our society particularly the husband’s side. It isalways expected from the wife and her family members even after the marriage to present the husband a newmotorcycle luxurious articles like T.V. refrigerator Washing machine etc. In the instant case demand ofRs.50 000 for purchasing the motorcycle is not for thepurpose of business or any other cause. The defencehas suggested to the prosecution witnesses and evenexplanation has also been tendered in the statementunder section 313 of Cr.P.C. that the appellant accusedno.1 Sharad was already having a motorcycle even priorto the marriage. This further strengthen theobservations made by us that the said demand ofRs.50 000 for purchasing a motorcycle was inconnection with the marriage even though motorcyclewas not required by the appellant accused no.1 Sharad.If we understood the dowry a well known social customand practice in India in the facts of the instant case since demand of Rs.50 000 for purchasing amotorcycle was made one month after the marriage only irresistible inference could be drawn that said on 08 07 2021 on 22 03 27 CRI APPEAL 134.2014 &135.2021.odtdemand is in connection with the marriage and thusconstitute a ‘dowry demand.’ So far as the demand ofgold ring at the time of Dhonde Feast is concerned weare agree with the submissions made by the learnedsenior Counsel Mr. Sapkal on behalf of theappellants accused that in Dhonde Feast generally gold ring is presented to the husband and therefore the same falls under the customary payment and thusdoes not cover within the ambit of word “dowry”.27.Deceased Kalindi died within eight months andsome odd days of the marriage. On the date of theincident i.e. on 15.9.2012 deceased Kalindi hadinformed to her brother PW 3 Dada about the assaultand beating by accused for non fulfllment of thedemand. It is a proximate link between the cruelty inconnection with the demand of dowry and death ofdeceased Kalindi resulting from it. The demand of saidamount of Rs.50 000 for purchasing a motorcycle andallegations about cruelty particularly on the date ofincident itself positively indicates that soon before thedeath deceased Kalindi was subjected to cruelty by the on 08 07 2021 on 22 03 28 CRI APPEAL 134.2014 &135.2021.odtappellant accused no.1 Sharad in connection with thesaid demand of dowry. The allegations have been madeabout the demand of Rs.50 000 for purchasing amotorcycle only against the appellant accused no.1 Sharad and since deceased Kalindi was subjected tocruelty on account of non fulfllment of the said demandtriggered by the subsequent event that at the Dhondefestival appellant accused no.1 Sharad was not offered agold ring allegedly by appellant accused no.1 Sharad we extend the beneft of doubt to the appellants originalaccused nos.2 Ashok Bhaurao Thange and 3 BhimabaiAshok Thange in criminal appeal no.1314.28.It is well settled that once the three ingredients ofsection 304 B of IPC i.e. i] death of a woman is causedby any burns or bodily injury or occurs otherwise thanunder the normal circumstances ii] within seven yearsof her marriage and iii] it is shown that soon before herdeath she was subjected to cruelty or harassment thepresumption under section 113 B would follow. It isheld to be rebutable presumption and accused bysatisfactory evidence can rebute the presumption. In on 08 07 2021 on 22 03 29 CRI APPEAL 134.2014 &135.2021.odtthe instant case the accused could not rebute thepresumption and even without aid of presumption theprosecution has proved that the appellant accusedSharad was responsible for the death of deceasedKalindi. Even the explanation tendered by theappellant accused No.1 Sharad about death of deceasedKalindi in her matrimonial home by accidental burnsappears to be false. There is no attempt at all to explainas to how the poisonous substance found in thestomach contents of deceased Kalindi and as to how thedeceased Kalindi had sustained 100% burns if at all shehad sustained burns accidentally. Even the tenor ofthe evidence of PW 4 Dr. Pardeshi indicates that therewas no possibility of accidental burns.29.In a case Vijay Purushottam Surushe and anotherVs. State of Maharashtra reported in 2011Bom.C.R.(Cri) 120 relied upon by the learned senior counsel Mr.Sapkal for the appellants in the facts of the said case the exact acts of ill treatment its nature and its effectnamely such ill treatment would drive victim to commitsuicide are all left to imagination as no facts have come on 08 07 2021 on 22 03 30 CRI APPEAL 134.2014 &135.2021.odtforward. However in the instant case on the day of theincident itself deceased Kalindi had informed to herbrother PW 3 Dada that she was subjected to assaultand beating by the accused persons on account of non fulfllment of the demand. Deceased Kalindi had madea phone call to her brother PW 3 Dada at about 10.30am and on the same day she died due to burns in hermatrimonial home and also otherwise than under thenormal circumstances at about 3.00 p.m. Thus thefacts and circumstances of the case cited are altogetherdifferent and cannot be made applicable to the facts ofthe present case.30.In a case of Appasaheb and another Vs. State ofMaharashtra reported in AIR 2007 Supreme Court 763 relied upon by the learned senior counsel Mr. Sapkal forthe appellants it is held by the Supreme Court thataccused demanding money for domestic expenses andfor purchase of manure thus cannot be convictedunder section 304 B of IPC. In paragraph no.9 of thejudgment the Supreme Court has made followingobservations : on 08 07 2021 on 22 03 31 CRI APPEAL 134.2014 &135.2021.odt“9. Two essential ingredients of Section 304B IPC apart from others are(i) death of woman is caused by any burns or bodily injury or occursotherwise than under normal circumstances andwoman is subjected tocruelty or harassment by her husband or any relative of her husband for orin connection with any demand for "dowry". The explanation appended toSub sectionof Section 304B IPC says that "dowry" shall have thesame 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 orvaluable 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(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 anytime 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 theMuslim Personal Lawapplies.In view of the aforesaid definition of the word "dowry" any property orvaluable security should be given or agreed to be given either directly orindirectly at or before or any time after the marriage and in connectionwith the marriage of the said parties. Therefore the giving or taking ofproperty or valuable security must have some connection with themarriage of the parties and a correlation between the giving or taking ofproperty or valuable security with the marriage of the parties is essential.Being a penal provision it has to be strictly construed. Dowry is a fairlywell known social custom or practice in India. It is well settled principle ofinterpretation of Statute that if the Act is passed with reference to aparticular trade business or transaction and words are used whicheverybody conversant with that trade business or transaction knows orunderstands to have a particular meaning in it then the words are to beconstrued as having that particular meaning.939 Kanchanben Purshottambhai and others reported inAIR 2015 SC315 and Durga Prasad and anotherVs. State of M.P. reported in 2010 AIR SCW 3673 reliedupon by the learned Senior counsel Mr. Sapkal forappellants the facts of these case are altogetherdifferent and cannot be made applicable to the facts ofthe present case.35.In view of the discussion above we are of theconsidered opinion that prosecution has proved the caseunder section 304 B 498 A of the Indian Penal Code on 08 07 2021 on 22 03 34 CRI APPEAL 134.2014 &135.2021.odtagainst the appellant accused no.1 Sharad AshokThange in Criminal Appeal No.1314 and theappellants accused no.2 Ashok Bhaurao Thange and 3 Bhimabai Ashok Thangeis herebypartly allowed.ii.The impugned judgment and order passed bythe learned Additional Sessions Judge Ahmednagar dated 26.2.2014 in Sessions CaseNo.3812 to the extent of appellant accused Sharad Ashok Thangeis hereby modifed to the extentof sentence as under : iii.The appellant accused Sharad Ashok Thange(original accused no.1) is hereby convicted forthe offence punishable under section 304 B ofthe Indian Penal Code and sentenced to sufferR.I. for 10years and to pay a fne ofRs.5 000 in default ofpayment of fne to suffer R.I. for 6 months instead of imprisonment for life.iv.Conviction of appellant accused Sharad AshokThangeunder section498 A of the Indian Penal Code and sentencing on 08 07 2021 on 22 03 36 CRI APPEAL 134.2014 &135.2021.odthim to suffer R.I. for a period of three years andto pay fne of Rs.2 000 in default of paymentof fne to suffer R.I. for six months standsconfrmed.v.The appellant accused no.1 Sharad AshokThange is entitled for the set off from the dateas directed by the trial court.vi.Both the sentences shall run concurrently.vii.Criminal Appeal No.1314 is herebyallowed.viii.The impugned judgment and order passed bythe learned Additional Sessions Judge Ahmednagar dated 26.2.2014 in Sessions CaseNo.3812 to the extent ofappellants original accused no.2 AshokBhaurao Thange and no.3 Bhimabai w oAshok Thange is hereby quashed and set asideand the appellants original accused nos.2 Ashok Bhaurao Thange and no.3 BhimabaiAshok Thange are hereby acquitted from all thecharges levelled against them.ix.Fine amount if any paid by them shall berefunded to them. on 08 07 2021 on 22 03 37 CRI APPEAL 134.2014 &135.2021.odtx.The appellant accused Sharad Ashok Thangein criminal appeal no.1314 and theappellants accused no.1 Asok Bhaurao Thangeand 2 Bhimabai Ashok Thange shall executeP.B. of Rs.15 000 each with one surety of thelike amount each to appear before the highercourt as and when the notice is issued inrespect of any appeal or petition fled againstthe judgment of this Court. Such bail bondsshall remain in force for a period of six monthsfrom the date of its execution. xi.Both the criminal appeals are accordinglydisposed off.( SHRIKANT D. KULKARNI J. ) ( V.K. JADHAV J. )...AAA 

Summary: In any criminal case, the prosecution has to prove under the Indian Penal Code, that the accused are guilty beyond reasonable doubt, held, a bench of Justice VK Jadhav and Justice Shrikant Kulkarni, while adjudicating the matter in Shri Sharad Ashok Thange v. State of Maharashtra; [CRIMINAL APPEAL NO.135 OF 2014]. On 16.9.2012 at about 3.00 a.m. PW 1-Raosaheb Kondiba Dukale-father of the deceased Kalindi has fled F.I.R at Shevgaon Police Station. It has been stated in the FIR that deceased Kalindi was given in marriage to appellant/accused no.1 Sharad Thange and marriage was performed on 29.1.2012. It has been alleged that Kalindi was treated well for a period of one month and, thereafter subjected to cruelty on account of the nonfulfllment of demand of Rs.50,000/- (Rs. Fifty Thousand) for purchasing a motorcycle. It has also alleged that on 13.9.2012 when the complainant has invited all the accused in his house for Dhonde Feast, appellant/accused no.1 Sharad has made a demand of one Tola Gold Ring, however, due to poor economic condition, complainant PW 1 Raosaheb could not fulfll the said demand. However, he has promised that when he will fetch good yield from his land, said ring will be given. All the accused left the house of the complainant alongwith Kalindi, however, while leaving the house deceased Kalindi was crying. On the very next day, i.e. on 15.9.2012 deceased Kalindi informed to her brother. PW 3 Dada Dukle stated on phone that as golden ring was not given to her husband appellant/accused, he has severally assaulted her and subjected her to cruelty. On the same day, at about 3.00 p.m. Sarpanch of village Avane informed to PW 3 Dada Dukle on phone that his sister deceased Kalindi died due to burns in the house of the accused. Accordingly, PW 1 Raosaheb, his wife Prayagbai and other relatives rushed to the house of the accused at Barhanpur, Tq. Shevgaon, District Ahmednagar. They have found that deceased Kalindi was totally in burnt condition and her dead body was lying in the house of the accused. They have carried said dead body to the Civil Hospital, Shevgaon. PW 1 Raosaheb has expressed his suspicion that since demands of Rs.50,000/- for purchasing the motorcycle and one Tola gold ring were not satisfied, his daughter was subjected to cruelty on that count, and accordingly, deceased Kalindi had committed suicide by setting herself on fire.