some amount was spent by parents of Anita towards purchase of
clothes and marriage expenses, said expenses in view of Section
Section (3) (2) (b) of the Dowry Prohibition Act do not fall within
term “dowry”. As per said proviso, the presents that are made
by and on behalf of the bride or any person related to bride,
which are of customary nature and value thereof is not
excessive, having regard to the financial status of the person by
whom or on whose behalf presents are given do not fall within
the prohibited demand of “dowry”. Thus, the customary presents, the value of which is not excessive, they do not fall within the definition of term “dowry”.
Here in the case the amount which is alleged to be spent by
P.W.1 for marriage of his daughter Anita, cannot be called as of
excessive nature, having regard to the financial status of the
parties. As the said amount is spent by him for purchase of
clothes of Anita and her husband, then it has to be held that
those presents are of customary nature.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.689 OF 1993
The State of Maharashtra
V/s.
Anil Narayan Pawar,
CORAM : SMT. V. K. TAHILRAMANI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
DATE : 2nd JULY, 2015.
Citation;2015 ALLMR(CRI)4597
1. The State has preferred this appeal against acquittal
of respondent Nos 1 to 4, for the offences punishable under
Sections 498A, 304-B, 306 read with 34 of the Indian Penal Code
and Sections 3 and 4 of the Dowry Prohibition Act, as recorded
by the learned Assistant Sessions Judge, Thane, vide his
judgment and order dated 13.9.1993, in Sessions Case No.491 of
1991.
2. The facts, as are necessary, for deciding this appeal
may be stated as follows :-
The marriage of Anita, the daughter of P.W.1 Sajan
and P.W.2 Sulbha, was performed with respondent No.1 on
5.1.1987. Respondent No.2 is the brother-in-law of Anita and
respondent Nos 3 and 4 are father-in-law and mother-in-law of
Anita, respectively. At the time of marriage itself, a demand of
Rs.30,000/- was made by respondents which was tried to be
satisfied by the parents of Anita by giving gold necklace and earrings
to her and also by purchasing the clothes. Rest of the
amount was given in cash. However, just two hours before
marriage, respondent No.3 insisted for additional amount of
Rs.15,000/- and the said demand was also satisfied.
3. After the marriage, at the time of Diwali festival, it
was noticed that Anita was not having gold ornaments given to
her in the marriage. When respondent No.1 was confronted
about it , he replied that it was his right to take ornaments of his
wife. He further demanded gold chain for himself. Anita's
parents were unable to satisfy the said demand. Even then the
said demand was repeated by respondent No.1 in the month of
March and again in May, 1989 when in the marriage of their
relatives, Anita and Respondent No.1 had come. Thereafter in
November, 1990, Anita wrote a letter to her father, P.W.1 Sajan,
requesting that the vacant plot at Dhule which was standing in
the name of her brother Devendra, be transferred in her name.
Subsequent thereto, a demand of Rs.20,000/- was made by the
respondent No.1 to the parents of Anita for purchase of property
at Ulhasnagar where Anita and respondent No.1 were residing.
Her parents failed to fulfill this demand. Hence some quarrel took
place in the wedding of Anita's younger sister Sudha at Shegaon,
Akola, about 15 days before her death
4. On 15.3.1990, P.W.1 received telephonic message that
Anita and her son Abhijit have succumbed to burn injuries. He
immediately went to Central Hospital at Ulhasnagar and they
found burnt bodies of Anita and her son Abhijit. After performing
funeral rites on their dead bodies, on the next day her father,
P.W.1 Sajan lodged complaint Exh.19 against respondents. On
his complaint P.W.9 ASI Chavan has registered C.R.No.27 of 1991
against respondents for the above said offences.
5. Meanwhile on 14.3.1991 itself, on the receipt of
information that smoke was coming from the house of Anita,
P.W.9 ASI Chavan, had visited there and had sent burnt bodies of
Anita and her son Abhijit to Hospital at Ulhasnagar and has
registered A.D.No.9 of 1991. He also carried out panchanama of
scene of the offence vide Exh.43 and recorded statements of 8
witnesses on that day. On registration of the crime, he again
recorded statements of relatives of Anita and arrested
respondent Nos 1 & 2 on 15.03.1991 and respondent No.3 on
16.03.1991. As respondent No.4 had obtained anticipatory bail
from the Court, she was not arrested. On 18.03.1991 P.W.1 Sajan
produced in all 8 letters written by Anita to him which were taken
on record. Further to completion of investigation, P.W.9 ASI
Chavan filed chargesheet in the Court against respondents.
6. On committal of the case to the Sessions Court, trial
Court framed charge against the respondents vide Exh.10.
Respondents pleaded not guilty and claimed trial, raising plea of
false implication.
7. In support of its case, the prosecution examined in all
9 witnesses and on appreciation of their evidence, the Trial
Court was pleased to acquit the respondents of all the charges
levelled against them. Being aggrieved by the said decision, this
appeal is preferred by the State.
8. During the pendency of this appeal, respondent No.3
Narayan, the father-in-law of deceased Anita, has expired, hence
the appeal stands abated against him.
9. In this appeal, we have heard learned APP for the
State and learned counsel for respondents.
10. This being an appeal against acquittal, at the outset
itself, learned counsel for respondents has sounded a note of
caution, by placing reliance on the latest authority of Apex Court
in Madivallappa V. Marabad and others -vs- State of
Karnataka, (2014) 12 SCC 448; wherein the Apex Court had
made reference of its earlier decision in Rohtash v State of
Haryana (2012) 6 SCC 589. In para 27 of the said judgment,
it has been held that,
“The law of interfering with the judgment of
acquittal is well settled. It is to the effect that only
in exceptional cases where there are compelling
circumstances and the judgment in appeal is found
to be perverse, the appellate court can interfere
with the order of the acquittal. The appellate court
should bear in mind the presumption of innocence
of the accused and further that the trial court's
acquittal bolsters the presumption of innocence.
Interference in a routine manner where the other
view is possible should be avoided, unless there are
good reasons for interference”.
11. Hence, according to learned counsel for respondents,
this Court cannot interfere in the judgment of the trial Court
unless there are compelling circumstances and unless the
judgment in appeal is found to be perverse. Bearing in mind this
legal position, we proceed to re-appreciate the evidence on
record as under:-
To prove its case, prosecution has relied upon the oral
evidence of the parents of Anita, coupled with the evidence of
other relatives as to the demand of cash amount on the part of
respondents, which is termed by them as demand of “dowry”.
The prosecution has to prove two ingredients to prove its case of
dowry demand and dowry death. First, that there was demand of
cash or any valuable security and second that the said demand
falls within the definition of “dowry”.
12. As per evidence of P.W.1 Sajan and P.W.2 Sulbha, the
parents of Anita, when marriage of Anita was settled with
respondent No.1, at that time itself, dowry in the form of
ornaments, cash and clothes of the bridge-groom was
demanded. P.W.1 was asked to purchase one gold necklace and
ear-ring for his daughter and locket and gold ring for respondent
No.1. According to P.W.1 Sajan, he has totally spent Rs.17,500/-
for purchase of gold ornaments; an amount of Rs.5,500 to
6,000/- for purchasing clothes and gave hard cash of Rs.7,000/-
to respondent No.3, the father-in-law of Anita. However, at the
time of marriage, further amount of Rs.15,000/- was demanded
by respondent No.3. As P. W. 1 Sajan was not having cash at that
time, he sold gold bangles of his wife and paid an amount of
Rs.13,500/- to respondent No.3 in presence of relatives.
Accordingly receipt of Rs.13,500/- was executed by respondent
No.3 vide Exh.16.
13. At the time of Deewali festival, respondent No.1
demanded gold chain of 10 grams to him. However, he was
unable to fulfill the said demand. The said demand was again
repeated on 8.3.1989, when Anita and respondent No.1 had
come to attend the marriage of cousin sister of respondent No.1
which was celebrated at Patan. That demand was further
repeated on 27th May, 1989 in the marriage of respondent No.1's
sister. According to P.W.1 Sajan, respondent No.1 has prevented
and obstructed him from meeting or talking with Anita till his
demand was met.
14. As to this first demand made by respondent No.1, in
the evidence of parents of Anita,as the trial Court found that
there is no consistency and there was, therefore, no reliable
evidence on record. Though the evidence of P.W.1 Sajan is
consistent with F.I.R. lodged by him, it is not consistent with
receipts Exh.16 and 23 and the oral evidence of P.W.4 Shalivahan
Hire. The receipt Exh.16 goes to show that out of the amount of
Rs.30,001/-, Rs.13,000/- was paid in cash whereas as per F.I.R.
and evidence of P.W.1 Sajan, an amount of Rs.7,000/- was paid in
cash. Receipt Exh.16 further reveals that an amount of Rs.6150/-
was spent for purchasing clothes, whereas the oral evidence and
F.I.R. shows that an amount of Rs.5,500/- was spent for
purchasing clothes. Receipt Exh.16 shows that an amount of
Rs.11,000/- was again spent for purchasing clothes. But the
evidence of P.W.1 and the F.I.R. is silent about it. Exh.23 further
reveals that out of the amount of Rs.30,001, Rs.13,000/- was
paid in cash, Rs.6,500/- was spent for purchase of clothes and
remaining amount was spent for purchase of gold.
15. Thus, as per receipt Exh.16 no amount was spent for
purchasing gold ornaments either for Anita or for respondent
No.1; whereas according to evidence of P.W.1, an amount of
Rs.17500/- was spent for purchasing gold. Receipt Exh.23 is
silent as to how much amount was spent for purchase of gold. It
is pertinent to note that no receipt of purchasing gold ornaments
or even of purchase of clothes is produced on record. In view of
these apparent inconsistencies, the evidence relating to
purchase of gold ornaments and giving cash as per demand of
respondent No.1, does not stand proved. It is also pertinent to
note that though P.W.4 Shalivahan Hire, who claims that he was
representing side of parents of Anita during talks of settlement of
marriage, has not uttered a single word either about demand of
Rs.30,000/- by the respondents, at the time of settlement of
marriage or about actual payment of said amount either in cash
or in kind to the respondents, at the time of performance of
marriage.
16. Moreover though evidence on record proves that
some amount was spent by parents of Anita towards purchase of
clothes and marriage expenses, said expenses in view of Section
Section (3) (2) (b) of the Dowry Prohibition Act do not fall within
term “dowry”. As per said proviso, the presents that are made
by and on behalf of the bride or any person related to bride,
which are of customary nature and value thereof is not
excessive, having regard to the financial status of the person by
whom or on whose behalf presents are given do not fall within
the prohibited demand of “dowry”.
17. Thus, the customary presents, the value of which is not
excessive, they do not fall within the definition of term “dowry”.
Here in the case the amount which is alleged to be spent by
P.W.1 for marriage of his daughter Anita, cannot be called as of
excessive nature, having regard to the financial status of the
parties. As the said amount is spent by him for purchase of
clothes of Ania and her husband, then it has to be held that
those presents are of customary nature. Hence as regards first
instance of demand of Rs.30,000/-, we are of the opinion that the
trial Court has rightly held that the prosecution has not proved
the same beyond reasonable doubt so as to fall it within the four
corners of the offence under Sections 3 and 4 of the Dowry
Prohibition Act or under Section 304-B of the Indian Penal Code.
18. As regards instance of second demand of gold chain
and gold ring, as made by respondent No.1, as per evidence of
P.W.1 Sajan, this demand was made for the first time at
Chalisgaon Railway station, when respondent No.1 had come
there to attend marriage ceremony of his cousin sister. The said
demand was repeated again in the marriage ceremony of sister
at Latur. There is no other corroborating evidence except
testimony of P.W.1 Sajan on this aspect.
19. Moreover, the evidence relating to this demand has
to be appreciated in the light of factual position prevailing at the
relevant time and the contents in the letter Exh.17, written by
respondent No.1 to P.W.1 Sajan. The said letter is written in the
month of April, 1988 and contents thereof go to reveal that
respondent No.1 was not at all happy about orthodox conduct of
family of P.W.1. He was not allowed to enter their house and was
also insulted and compelled to stay at Chalisgaon railway
station. Nobody from the family of P.W.1 had talked with him.
There is also reference in the letter that he was beaten by P.W.1
Sajan. The said letter, however, reveals love of respondent No.1
for his wife Anita. The contents of this letter further reveal that
the relations between respondent No.1 and P.W.1 Sajan were
strained at the time, as respondent No.1 was not allowed to
enter the house when he had come there to meet his wife Anita.
In view thereof, we are of the opinion that the trial Court has not
committed any error in disbelieving evidence relating to the
demand of gold chain alleged to be made by respondent No.1 to
P.W.1 Sajan at Chailsgaon railway station.
20. P.W.1 Sajan and P.W.2 Sulbha have deposed about
demand made by Anita in respect of open plot of land at Dhule
which was standing in the name of Anita's brother. The only
piece of evidence in respect of this alleged demand is the letter
written by Anita to her father P.W.1 Sajan, vide exh.18. Plain
reading of the letter, however, goes to show that there was
some talk between Anita and her father and her father has
assured to give the said plot to Anita. The prosecution is silent
so far as this earlier talk of handing over of the plot at Dhule to
Anita. P.W.2 Sulbha, Anita's mother, has stated that Anita was
compelled to write such letter. In the absence of any evidence to
that effect, it becomes difficult to accept such contention, unless
prevailing circumstances mentioned in the said letter are
explained by the prosecution witnesses. Similarly as to alleged
request made by Anita in the said letter to her father to transfer
said open plot in her name, it cannot be said that it has any
connection with her marriage to make it a demand of “dowry”.
21. The last instance of demand is in respect of
Rs.20,000/- for purchase of property at Ulhasnagar. As per
evidence of P.W.1 Sajan, this amount of Rs.20,000/- was
demanded by the parents of respondent No.1, when they had
been to Chalisgaon in the month of December, 1991. The
prosecution has also brought on record the evidence of P.W.7
Asanand Chhabrani, the owner of the said property who was
intending to sell it to respondent No.1 for consideration of
Rs.95,000/-. The oral agreement to that effect was also executed
between them. The prosecution has further examined P.W.8
Devendra Wankhede, who was working in Sales Tax Office, where
respondent No.1 was employed. He has deposed that respondent
No.1 has applied for loan of Rs.20,000/- with Credit Society in
the year 1991. Amount of loan was sanctioned to him on
27.2.1991. It was paid to him on 14.3.1991. This witness has
also stood surety for said loan.
22. As per evidence of P.W.1 Sajan and P.W. 2 Sulbha the
parents of Anita, P.W.3 Dinkarrao Patil the father-in-law of Anita's
Sister Sudha, P.W.4 Shalivahan, relative of P.W.1, this demand of
Rs.20,000/- was made at the time of marriage of Sudha. P.W.1
Sajan the father of Anita has expressed his inability to fulfill the
demand. Hence respondent No.1 threatened to jeopardies the
life of Anita. Moreover, immediately after the marriage,
respondent No.1 left the said place alongwith Anita. When
Anita's brother Devendra attempted to pacify him, respondent
No.1 slapped him and left with Anita. That was the last meeting
of her parents with Anita. 12 to 15 days thereafter Anita
succumbed to burn injuries.
23. As regards to evidence of P.W.3 Dinkarrao on this
point, in his cross-examination an omission is elicited that in his
statement recorded by police there is no mention of his
witnessing the demand of Rs.20,000/- by respondent No.1.
Moreover, when respondent No.1 has already applied for loan
and his loan was sanctioned, it becomes difficult to accept that
he will make such demand of Rs.20,000/- from the parents of
Anita, especially in the light of strained relations between the
parties. Moreover, the said demand, as held by the trial Court,
cannot fall within the definition of “dowry” as it is not in
connection with the marriage.
24. Learned counsel for the respondents has in this
respect made useful reference to the judgment of our own High
Court, in Arjun Dhondiba Kamble and ors -vs- State of
Maharashtra, (1993 Mh. L.J. 1007 wherein it was held that, in
the sense of definition of “dowry” under Dowry Prohibition Act,
the demand for property or valuable security should have an
inextricable nexus with the marriage. In other words, it must
have some connection with the marriage. If it is a post marriage
expectation and the performance thereof, it does not amount to
“dowry”. It was further held in this judgment that, for attracting
offence under Section 304-B of IPC there must be demand of
dowry within the definition of section 2 of Dowry Prohibition Act.
25. In the instant case the alleged demand of Rs.20,000/-
as held by the trial Court, cannot be treated as “dowry demand”,
as it has no connection or inextricable nexus with the marriage.
It also appears from the evidence led by prosecution itself, in the
form of letter Exh.20 written by Anita to her parents in
December 1990, demanding Rs.20,000/- from her father that
Anita has written this letter without the knowledge of respondent
No.1 and his family members. She has further written in the said
letter that she was ready to pay interest on the said amount, if
advanced by her father and amount will be refunded when her
National Saving Certificates would mature. This letter, therefore,
proves that amount was demanded by Anita, as she wanted the
property to be purchased by her husband. It has no connection
with the marriage between her and respondent No.1 as such.
26. This brings us to the evidence relating to death of
Anita and her son Abhijit. The prosecution has examined in this
respect P.W.6 Kisan Tolaram, who was having shop in front of
residential house of Anita and Respondent No.1. According to
him on 14.3.1991 at about 1.00 p.m. when he was present in the
shop, he noticed smoke emitting from the house of respondent
No.1. Hence he went there and found that Anita and her son
were lying on the bed in totally burnt condition. The door of the
house was partly open. Respondent No.1 was not present in the
house. He was in his office. Hence, this witness has given
telephonic information to respondent No.1 about the said
incident. He has also informed the police and then P.W.9 ASI
Chavan, has visited the spot and removed the dead bodies to the
hospital. Postmortem report of Abhijit Exh.45 and of Anita
Exh.46, which are admitted in evidence by defence under
Section 294 of Code of Criminal Procedure, prove that both of
them had sustained 100% burns all over body which ultimately
resulted into their death on the spot itself.
27. It is true that the circumstances in which Anita's
death has occurred cannot be called as natural. However, mere
unnatural death of married woman, due to burns, cannot be
sufficient to prove the offence either under Section 304-B or u/s
306 of IPC. The prosecution has to prove further that soon
before her death, she was subjected to the cruelty which was in
connection with demand of dowry. The prosecution has,
however, failed to prove this material ingredient of the offence.
Conversely, letter written by Anita herself to her parents vide
Exh.28, goes to prove that Anita was very much happy in the
house of respondent No.1. She has expressed her love and
affection for him and his parents.
28. Admittedly, respondent Nos 3 and 4 were not
residing with her. They were residing at their native place and
respondent No.2 was visiting her place occasionally. Her letter
reveals that she had absolutely no grievance against them, but
was very happy with her husband respondent No.1. She is
calling herself fortunate to have such husband and parents-inlaw.
Her letter, therefore, falsifies the prosecution case that she
was subjected either to harassment, illtreatment or cruelty at the
hands of respondents. There is no other evidence brought on
record by prosecution to show that there was any harassment
or illtreatment to Anita at the hands of respondent No.1. Though
prosecution has examined P.W.6 Kisan Tolaram, who was having
shop in front of Anita's house, he has not stated anything about
the alleged harassment or illtreatment. Even her parents and
other relatives like P.W.3 Dinkarrao Patil or P.W.4 Shalivahan,
have not deposed that Anita has ever complained to them about
illtreatment or harassment at the hands of respondents. In the
conspicuous absence of such evidence on record, though the
death of Anita and her son Abhijit are proved to be un-natural
and had occurred in suspicious circumstances, which can be
called as most unfortunate, respondents cannot be held guilty of
the offences charged against them.
29. Thus, on entire re-appreciation of evidence on record,
in our considered opinion, the view taken by the trial Court
being probable view and no perversity being found in the
appreciation of evidence by the trial Court, no interference can
be made by this Court in the said judgment. Consequently,
appeal stands dismissed.
[DR.SHALINI PHANSALKAR-JOSHI, J.] [SMT. V.K.TAHILRAMANI, J.]
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