Ashish and PW4 Dr. Yadavrao on the point of cruelty provided by accused
to deceased Vandana and on demand of dowry, we do not find their
evidence to be sufficient to attract provisions of Sections 498A and 304B
of the Indian Penal Code. As in the evidence of neither of these witnesses,
there are specific allegations of cruelty as required under the law to be
established by the prosecution. The existence of cruelty cannot be proved
merely because suicide has been committed or deceased died of unnatural
death. Undoubtedly to a large extent, the concept of cruelty will be
subjective, but no claim of cruelty can be made within objective basis.
Thus, merely because victim has taken a drastic step of ending her life, it
cannot be presumed that the treatment that was being given to her was
cruel, so as to attract punishment provided for, in Section 498A of the
Indian Penal Code. Explanation to Section 498A of Indian Penal Code
makes it clear that cruelty means “any willful conduct, which is of such a
nature as is likely to drive a woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or physical) of the
woman”. The words “willful conduct” and “likely to” used in explanation
clause (a) are significant. The words “likely to” used in the said clause
show that clause (a) of explanation to Section 498A of the Indian Penal
Code requires a willful conduct to be of such a nature as would likely to
drive a woman to commit suicide or to cause grave injury or danger to life,
limb or health. The extent of cruel treatment needs to be objectively
assessed in order to see whether a reasonable or average person would
likely to be driven to commit suicide or cause grave injury to her on
account of treatment.
Had
the allegations of demand of dowry and harassment to Vandana were
established thereby making an offence under Section 498A of the Indian
Penal Code, the things would have been different. However, in the absence
of such evidence and since we do not find dowry demand and harassment
to Vandana to be established, provisions of Section 304B of Indian Penal
Code cannot put into play so as to attract presumption as to dowry death.
It is necessary to show that soon before the death, deceased had been
subjected by such person to cruelty or harassment for or in connection
with, any demand for dowry. When this essential ingredient has not been
established in the present case, the question of drawing any presumption
by invoking aforesaid provisions does not arise at all.
Even otherwise mere evidence of cruelty and harassment is not sufficient to
bring in application of Section 304B of the Indian Penal Code. It has to be
shown in addition that such cruelty or harassment was for or in connection
with the demand for dowry. Since the prosecution failed to prove that
aspect, the conviction as recorded cannot be maintained.
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.08 OF 2005
Dnyaneshwar @ Nana Kashinath Jumade V State of Maharashtra,
CORAM : B.P. DHARMADHIKARI AND
P.N. DESHMUKH, JJ.
Dated : AUGUST 19th, 2015.
Citation:2016 ALLMR(CRI)4783
This appeal takes exception to the judgment dated
20/12/2004 passed in Sessions Trial No.104/2000 by the learned
Additional Sessions Judge, Pusad, vide which the appellant/accused viz.
Dnyaneshwar @ Nana Kashinath Jumade was convicted for the offence
punishable under Sections 498A of the Indian Penal Code and was
sentenced to suffer rigorous imprisonment for three years and to pay fine of
Rs.3,000/, in default to suffer rigorous imprisonment for one year, and he
was also convicted for the offence punishable under Section 304B of the
Indian Penal Code and was also sentenced to suffer rigorous imprisonment
for life.
The accused was charged on the count that he being the
husband of deceased Vandana, during the period from 17/06/1997 to
15/08/2000 at village Partur, District Jalna, where he was serving as
teacher, subjected the deceased to cruelty by his willful conduct, which is
of such a nature as is likely to drive Vandana to commit suicide on the
count of her failure to fulfill demand on account of balance dowry amount
to the extent of Rs.15,000/ and a four wheeler vehicle.
Accused was further charged on the allegation that on
15/08/2000 at about 11:00 a.m. in the parental home of deceased at
Umerkhed, District Yavatmal, deceased died sustaining burn injuries,
otherwise than under normal circumstances within seven years of her
marriage and the death is caused as accused subjected Vandana to cruelty
and harassment soon before her death till 21/07/2000 on her failure to
fulfill illegal demand, as aforesaid.
02] Case of the prosecution can be briefly stated as under :
Deceased Vandana was married to accused on 17/06/1997 at
Pandharkawada, District Yavatmal. The marriage was settled in the house
of parental uncle of deceased viz. Dr. Vijay Mankar, when it was decided to
give dowry in terms of cash to the tune of Rs.80,000/ and a four wheeler
vehicle. Out of said amount, Rs.65,000/ in cash was given to accused in
marriage and balance amount of Rs.15,000/ was agreed to be paid along
with four wheeler vehicle after marriage.
After the marriage was solemnized, Vandana cohabited with
accused at Partur, District Jalna, where accused was serving as a teacher in
Navodaya Vidhyalaya and was blessed with a daughter viz. Shakshi.
03] It is the case of prosecution that accused subjected deceased to
cruelty on account of balance of dowry amount and four wheeler. Said fact
was disclosed by deceased to PW1 Ashish Raut, her younger brother and
adopted son of PW4 Dr. Yadavrao Raut, who alleged that his wife Dr.
Vimal, after the death of parents of deceased in her childhood, had brought
up her. Dr. Vimal w/o Yadavrao Raut is sister of natural father of Vandana
and the complainant.
According to the prosecution's case, on 21/07/2000, Vandana
for the last time spoke to PW1 Ashish on phone informing him of the
cruelty sustained by her from the accused and requested him to bring her
from Partur. Thus, on 25/07/2000, PW1 Ashish went to Vandana and
brought her to Umerkhed, when accused is stated to have said to Vandana
that she should not show her face unless she brings balance amount of
dowry and four wheeler vehicle and extended threats of dire consequences
on her failure to comply with the same. Vandana accompanied her brother
Ashish to Umerkhed, where on 15/08/2000 she committed suicide by
setting her ablaze and was admitted to Rural Hospital, Umerkhed, where
she was declared dead.
04] On the strength of information of death of deceased received
from the Medical Officer, Government Hospital by PW6 Chandansingh
Bais, Police Inspector, A.D. No.26/2000 was registered by him at [Exh.25]
and investigated the same. During the course of which, he visited the
hospital and drew inquestpanchnama [Exh.28] in presence of the panchas
and sent dead body of deceased Vandana for postmortem, of which
postmortem report is issued by the Medical Officer at [Exh.29]. He then
visited the spot, which was in the house of PW4 Dr. Yadavrao, drew spotpanchnama
[Exh.50] and seized ash, plastic can containing kerosene, one
match sticks box and one burn match stick from the spot under seizurepanchnama
[Exh.51].
On 18/08/2000, PW4 Dr. Yadavrao produced one envelope
[Exh.52] addressed to him along with one letter therein [Exh.55], which
came to be seized under seizurepanchnama [Exh.53] in the presence of
panchas and Dr. Yadavrao.
On 23/08/2000, PW1 Ashish lodged report to police vide
Exh.39. On the basis of said report, offence came to be registered vide
Crime No.89/2000 for the offences punishable under Section 304B of the
Indian Penal Code and was further investigated by PW6 Chandansingh
Bais, P.I. On the same day i.e. on 23/08/2000, PW1 Ashish produced one
diary [Exh.41] and four letters alleged to be written by deceased, which are
at Exh.42(1) to Exh.42(3) and Exh.44, which came to be seized under
seizurepanchnama [Exh.45].
On 28/08/2000, accused came to be arrested under arrestpanchnama
[Exh.34]. During the course of investigation, marriage
invitation card of deceased with accused came to be seized, which is at
Exh.33. On recording the statements of witnesses, it transpired to the
Investigating Officer that after marriage of deceased, she was subjected by
the accused to cruelty on account of demand of dowry, due to which she
committed suicide, and thus on collecting postmortem notes [Exh.61] and
on completion of investigation, chargesheet came to be filed against the
accused before the learned Court of Judicial Magistrate First Class,
Umarkhed. In the course of time, case came to be committed for its trial to
the learned Sessions Judge. Charge was framed against the accused vide
Exh.46 for the offences punishable under Section 498A, 304B of the
Indian Penal Code to which he pleaded not guilty and claimed to be tried.
It is the specific defence of accused that during her lifetime, Vandana was
suffering from epilepsy disease, due to which she committed suicide. The
learned Trial Court, on considering the evidence and documents on record,
convicted the appellant, as aforesaid. Hence, this appeal.
05] Heard learned Senior Counsel Mr. Anil Mardikar for the
appellant and learned Additional Public Prosecutor Mr. H.D. Dubey for the
State. According to the learned Counsel for the appellant, the learned Trial
Court did not appreciate the evidence in its proper perspective and has
discarded the evidence of the defence witnesses without sufficient cause. It
is also submitted that the prosecution has not examined Dr. Vimal, wife of
PW4 Dr. Yadavrao, who had brought up Vandana after the death of her
parents in her childhood, though according to the case of prosecution, said
Dr. (Mrs.) Vimal at the time of incident was present. It is submitted that
when the incident took place on 15/08/2000, there is no convincing reason
put forth by the prosecution for lodging belated F.I.R., which came to be
lodged by Ashish on 23/08/2000. It is also demonstrated as to why no
investigation was carried out in A.D., which came to be registered on the
death of deceased on 15/08/2000 itself, and as to why prosecution had not
examined independent witnesses, though were available, or had not
recorded their statements. It is also submitted that after the death of
Vandana, information of her death was given to accused through defence
witness DW4 Prakashchandra Bhatt, at around 12:30 noon, however,
before accused could reach to the house of Vandana, she was cremated at
06:00 p.m., in spite of her relative having being aware of the fact that
approximately 6 to 7 hours are required to reach Umerkhed from Partur by
a private vehicle. It is also contended that even otherwise from the
evidence of PW4 Dr. Yadavrao or from PW1 Ashish, who are only
witnesses relied by the prosecution on the point of illtreatment and
demand of dowry, their evidence is not convincing to be acted against the
accused. With reference to diary [Exh.41] and with reference to letters
[Exh.42(1) to Exh.42(3), Exh.44 and Exh.55, it is contended that contents
of these letters cannot be read since not proved and is further contended
that in view of evidence on record, since there is variance in the
handwriting of these documents, it was necessary to refer said documents
to handwriting expert to make a foolproof case that the writing in these
documents is of none other than deceased. However, as no such
investigation is carried out, these documents are said to be of no
consequence.
06] In the facts of appeal in hand, the learned Counsel for the
appellant has relied upon the following judgments and has thus contended
that the judgment of the trial Court needs to be set aside and quashed
acquitting the accused.
1. Biswajit Halder alias Babu Halder and others vs. State of
W.B., reported in (2008) 1 Supreme Court Cases 202.
2. Dudh Nath Pandey vs. State of U.P. reported in AIR 1981
Supreme Court 911.
3. Gurdeep Singh vs. State of Punjab and others, reported in
2012 ALL MR (Cri) 693 (S.C.).
4. Ramaiah alias Rama vs. State of Karnataka, reported in
2015(1) Mh.L.J. (Cri.)257.
07] Learned Additional Public Prosecutor on the other hand has
submitted that evidence of PW1 Ashish and PW4 Dr. Yadavrao clearly
establishes harassment sustained by deceased on account of nonpayment
of dowry and four wheeler immediately prior to her committing suicide on
15/08/2000, and thus submitted that evidence of these two witnesses
along with other circumstantial and documentary evidence on record,
which is in the form of letters written by deceased, establishes the charge
leveled against the accused and has thus prayed that appeal, being devoid
of merit, be dismissed.
08] Having considering the submissions advance, as aforesaid, we
with the assistance of the learned Counsel for both the sides have
scrutinized the evidence and documents on record. Having considering the
charge [Exh.46] leveled against the accused, we find that apart from
ingredients of Section 498A of the Indian Penal Code, basic ingredients to
attract provisions of Section 304B of the Indian Penal Code, which are
required to be proved by the prosecution are as follows :
(1) the death of a woman should be caused by burns or fatal
injury or otherwise than under normal circumstances;
(2) such death should have occurred within seven year of her
marriage;
(3) she must have been subjected to cruelty or harassment by
her husband or any relative of her husband; and
(4) such cruelty or harassment should be for or in connecting
with demand for dowry.
Alongside insertion of Section 304B in IPC, the
legislature also introduced Section 113B of the Evidence Act. If
Section, 304B IPC is read together with Section 113B of the
Evidence Act, a comprehensive picture emerges is that if a
married woman dies in unnatural circumstances at her
matrimonial home within seven years from her marriage and
there are allegations of cruelty or harassment upon such married
woman for or in connection with demand of dowry by the
husband or relatives of the husband, the case would squarely
come under “dowry death” and there shall be a presumption
against the husband and the relatives.
09] In the light of above required ingredients, we have scrutinized
the evidence of PW1 Ashish, younger brother of deceased, who has stated
that his sister deceased Vandana was married to accused on 17/06/1997
and talks regarding settlement of marriage took place in the house of Dr.
Vijay Mankar at Pandharkawada. He has stated that he is adopted son of
PW4 Dr. Yadavrao Raut. Due to death of his natural parents in the year
1972 or 1973, he and deceased were thus brought up by PW4 Dr.
Yadavrao and his wife Dr. Vimal.
He further stated that at the time of marriage of deceased, it
was decided to give Rs.80,000/ to accused and a four wheeler, out of
which Rs.65,000/ was decided to be paid at the time of marriage and
balance amount was decided to be paid with four wheeler vehicle after
marriage. At the time of marriage, accused was working as teacher in
Navodaya Vidhyalaya at Partur, District Jalna and thus Vandana cohabited
with him at Partur. PW1 Ashish further stated that Vandana used to call
him frequently on phone informing that accused was troubling her for nonpayment
of balance money and four wheeler. He further stated that on
21/07/2000, he received phone from Vandana calling him to take her away
from Partur with him, as she was being troubled by accused. Thus, on
25/07/2000, he went to Partur in the morning and came back with
Vandana with her daughter Shakshi, when accused is stated to have said
her that till the balance amount and four wheeler is not given to him, she
should not show her face. He has further stated that on 15/08/2000, she
committed suicide by setting her on fire in the house of her parents at
about 10:30 a.m. to 11:00 a.m., and on her admission to the Government
Hospital, she was declared dead, upon whom last rites were performed on
the same day in the evening.
On scrutinizing above referred evidence of PW1 Ashish, it is
material to note that prosecution has admittedly not examined Dr. Vijay
Mankar, the uncle of deceased, in whose house, marriage of deceased came
to be settled with accused on having talk. No explanation is put forth for
nonexamination of such material witness on the point of terms of
settlement of marriage, more particularly when the accused is charged for
the offences punishable under Sections 498A and 304B of the Indian
Penal Code. We further find it material to note that, according to evidence
of PW1 Ashish, he has stated that at the time of marriage talks, it was
decided to give cash of Rs.80,000/ to accused, out of which, Rs.65,000/
was paid at the time of marriage and balance amount and four wheeler was
to be paid after marriage. Having considering his evidence, as such, we
find that there is no specific evidence establishing demand of said amount
of Rs.80,000/ or four wheeler vehicle as is set out by prosecution, but we
find that above stated cash and four wheeler was decided to be given to
accused, when his marriage came to settled with Vandana.
On this point, there is no other material which can be
considered except for evidence of PW4 Dr. Yadavrao, who had stated that
marriage of deceased was settled by her uncle Dr. Vijay Mankar in his
house at Pandharkawada, at that time he was not present, though,
according to him, he was present in the engagement ceremony. Though he
had stated that prior to engagement, settlement talks took place in the
house of Dr. Vijay Mankar, his further evidence, that it was settled in his
presence to give Rs.80,000/ as dowry and a four wheeler, out of which
balance amount of Rs.15,000/ and four wheeler was to be given after
marriage, does not find to be convincing, when he had admitted that at the
time of settlement of marriage, he was not present. While according to
Ashish, the talks of settlement took place in house of his uncle Dr. Vijay
Mankar, where he has specifically stated that it was decided to give cash of
Rs.80,000/ and four wheeler to accused. In view of aforesaid evidence,
evidence of PW4 Dr. Yadavrao to the effect that it was settled in his
presence to give Rs.80,000/ and four wheeler does not inspire confidence.
Even otherwise from the evidence of neither of these witnesses, prosecution
can said to have brought on record that there was demand of Rs.80,000/
or of four wheeler by the accused or his relatives, since in the evidence of
both these witnesses, it has come on record that said amount and four
wheeler was decided to be given to accused and as such does not establish
any demand by accused or his relatives.
10] Reverting back to the evidence of PW1 Ashish on the point of
illtreatment, what is stated by him is that while Vandana was cohabiting
with accused at Umerkhed, on phone he was informed that accused was
troubling her on account of balance amount of dowry and four wheeler.
Said evidence of PW1 Ashish is too short to find out as to what was the
nature of trouble alleged to be sustained by Vandana. His evidence also
does not establish as to how long before the incident, which took place on
15/08/2000, he was informed of such harassment on phone by deceased,
except for stating that while deceased was cohabiting with accused, she
was frequently informing him on phone of trouble faced by her for balance
amount of dowry and four wheeler, there is absolutely no other
corroborative evidence on this aspect of the case. In that view of the
matter, there is no specific evidence of illtreatment being provided to the
deceased at the hands of accused.
Similar is the evidence of PW4 Dr. Yadavrao, when he has
stated that whenever Vandana was coming to Umerkhed, she was
complaining of accused of giving her mental and physical trouble.
According to him, said trouble was caused for nonpayment of dowry and
four wheeler. However, above evidence of PW4 Dr. Yadavrao appears to
be materially improved, when he has stated that in his statement recorded
by police, he has stated that at his house at Umarkhed, Vandana informed
that she was mentally and physically troubled by accused for want of
balance amount of dowry and four wheeler, however, he cannot state any
reason why it is not recorded so. Said omission is duly got proved by
defence from PW6 Chandansing Bais, P.I., the Investigating Officer. On
this aspect, evidence of PW4 Yadavrao is also found contradictory, when
he denied to have stated in the statement that whenever he asked deceased
at Umerkhed, she was not telling him anything. The above stated portion
marked 'A' of his statement has been duly got proved by the prosecution
from PW6 Chandansing Bais, P.I., who has recorded his statement at
Exh.69, which reads as follows :
“when we used to ask her, she was not telling us”
11] On scrutinizing further evidence of PW1 Ashish, he has stated
that on the day of incident on 15/08/2000, his parents were in the house
and he has lodged report on 23/08/2000. On the aspect of delay in
lodging report, Ashish has stated that as his mental condition as well as of
his parents and relatives was not good, no report could be lodged earlier.
Even otherwise, he has admitted that till giving of complaint, there was no
demand in writing with reference to balance dowry amount or four
wheeler nor he or any other family member had taken any legal action
against the accused nor had sent any notice to him. Moreover, Ashish has
admitted that on the day of incident, police had visited their house and
drew spotpanchnama, however, police had not made any enquiry either
with him or with his parents, who were all present, nor they on their own
made any complaint to police. Had it been a case of cruelty, having been
provided by accused to Vandana after her marriage till her death, there
appears to be no reason for Ashish or to his father Dr. Yadavrao or Dr.
Vimal w/o Yadavrao Raut to disclose said fact to police, though they
belongs to an literate family, as Dr. Yadavrao and his wife Dr. Vimal at the
material time were Medical Officers.
Similar is the evidence of Dr. Yadavrao of there not informing
police not lodging report till 23/08/2000. As such, only explanation put
forth by complainant Ashish as well as his father Dr. Yadavrao for not
lodging report of incident, which took place on 15/08/2000 till
23/08/2000, does not find to be convincing to be accepted more
particularly when it is the case of prosecution that deceased prior to the
incident was continuously subjected to illtreatment at the hands of
accused on the count of nonpayment of dowry and four wheeler.
PW1 Ashish has further stated that after lodging report, he
found one diary [Exh.41] and four letters [Exh.42(1) to Exh.42(3) and
Exh.44] in the suitcase of Vandana, which he produced before the police,
which came to be seized under seizurepanchnama [Exh.45] in the night on
23/08/2000. Admittedly, there is no reference of any of such letters or
diary in the report [Exh.39] that the said documents appears to have been
seized under panchnama [Exh.45] at 08:35 p.m. on 23/08/2000. While
report [Exh.39] is received by police on th same day at 08:15 p.m. and on
the basis of which, F.I.R. [Exh.40] came to be registered. PW1 Ashish,
who claims to know handwriting of his deceased sister, as he along with
Vandana took education at Umerkhed, has deposed that on page nos. 22,
23, 25 to 28, 37 and 38, Vandana wrote about trouble sustained by her at
the hands of accused. Similarly, according to Ashish, letters dated
09/06/1999, 28/03/1998, 12/04/1998 marked as Exh.42(1) to 42(3) and
letter dated 01/01/1999 [Exh.44] are in the handwriting of Vandana. In
the Trial Court, such letters and diary came to be exhibited subject to
objection raised by the learned defence Counsel, which objection has been
duly considered by learned Trial Judge noting that as PW1 Ashish, who is
younger brother of deceased Vandana, knows her handwriting, and has
identified handwriting from the diary and letters to be of her, said
documents can be read in evidence. Except as aforesaid, there is nothing
on record to establish that the writing in above documents are of by
Vandana and of nobody else. Admittedly, no investigation is carried out on
this aspect and the reason put forth by the Investigating Officer for not
carrying out investigation further by sending said handwriting to the
handwriting expert is stated by PW6 Chandansing Bais, P.I. that as the
complainant Ashish in his statement has stated that the handwriting in
diary and letters was that of deceased Vandana, he did not find it necessary
to send diary and letters seized during the course of investigation to
handwriting expert to seek his opinion. Though, evidence of Ashish on this
aspect is also not clear, when he has admitted that handwritings on page
nos. 21 and 22 are different in look, however, according to him, it is of
Vandana. He has further admitted that handwritings on page nos. 22 and
Exh.42(1) are similar. In that view of the matter, it cannot be said that
handwritings on these documents are same and thus we find much
substance in the suggestion put to him that the handwritings in the letters
are different from each others and that the handwritings in diary [Exh.41]
and letters [Exh.42(1) to Exh.42(3)] are not in the writing of Vandana,
though said suggestions are duly denied by him. In the circumstances, it
appears that the Investigating Officer, without further probing with
reference to the handwritings on these documents, had relied upon the
bare statement of Ashish, who claims to know the handwriting of deceased.
In that view of the matter also, we do not find it safe to read the contents
of said documents, since there is nothing on record to establish that these
are written by deceased alone.
Even otherwise, the case of prosecution with reference to
seizure of diary and letters when scrutinized on the basis of further
evidence of Ashish, it reveals that the suitcase, where from he claims to
have got the letters of deceased, was admittedly in the same room, where
the incident took place on 15/08/2000 and which was visited by the police.
Spotpanchnama is also drawn on the same day. However, there is no
explanation put forth by the prosecution as to how these documents were
located on 23/08/2000 i.e. eight days thereafter and were produced by
Ashish to police.
12] Evidence of PW4 Dr. Yadavrao reveals that he knew late
Vasantrao Mankar and Smt. Sarita Mankar, who were natural parents of
Ashish and deceased Vandana and had died about 20 years before. He has
stated that Vasantrao was younger brother of his wife Vimal and at the
time of his death, Ashish was aged four years and Vandana was aged
between 56 years, to whom he brought up.
On the point of demand of dowry, he has stated that
Vandana's marriage was settled by her uncle Dr. Vijay Mankar and he was
not present at the time of settlement and, however, has stated that before
engagement ceremony, in his presence it was settled to give Rs.80,000/ as
dowry and one four wheeler, out of which Rs.65,000/ was to be given at
the time of marriage and balance amount and a four wheeler was to be
given after marriage. Above piece of evidence of PW4 Dr. Yadavrao does
not inspire confidence, as at one stage, he has specifically stated that
marriage was settled at Pandharkawada by uncle of deceased and he was
not present, however, in another breath, he states that prior to engagement
ceremony, dowry was settled, as aforesaid. His evidence on this aspect is
not convincing also for the reason that PW1 Ashish did not state about
presence of Yadavrao at the time of settlement of dowry as alleged.
Moreover, the evidence of PW1 as well as PW4 is contrary to each other.
As according to Ashish, at the time of marriage it was decided to give cash
of Rs.80,000/ to accused and one four wheeler and after marriage,
balance amount of Rs.15,000/ and four wheeler was decided to be given.
While according to PW4 Yadavrao, prior to engagement ceremony itself, it
was decided to give as aforesaid. Admittedly, prosecution has not
examined Dr. Vijay Mankar, who in this situation appears to be the most
material witness, as he has settled marriage of deceased with accused and
has also performed it.
On the point of illtreatment, evidence of PW4 Dr. Yadavrao
as already discussed above, is by way of material omission when he has
stated that whenever deceased was visiting to Umerkhed, she was not
complaining about mental and physical torture provided to her by accused.
Rest of his evidence corroborates with the evidence of Ashish on the aspect
of Ashish on 21/07/2000 receiving telephonic message from Vandana and
about his visiting to Partur and to bring her back to Umerkhed on
25/07/2000.
13] On the point of incident, PW4 Yadavrao has stated that on
15/08/2000, when Vandana burnt herself and died, he was in the hospital,
where he received message and accordingly reached home, where his wife
Vimal was present. From the evidence of PW1 Ashish as well as from
PW4 Dr. Yadavrao, thus it has amply come on record that at the time of
incident, though Dr. Yadavrao was not in the house, Vimal was present,
however, for the reasons best known to the prosecution, she is not
examined.
From further evidence of Dr. Yadavrao, it has come on record
that on 18/08/2000, he informed police about his receiving letter dated
22/07/2000 [Exh.55] in envelope [Exh.52] on 29/07/2000, which is
seized under seizurepanchnama [Exh.53], dated 23/08/2000. According
to PW4 Dr. Yadavrao, he has informed about said letter to police on
18/08/2000, when police arrived for drawing spotpanchnama. In spit of
that, it appears that no seizure was effected on that day itself, but same
came to be seized on 23/08/2000. Similarly, we have noted that letter
[Exh.55] bears signature of Yadavrao below, which he had put date as
15/08/2000 while its seizurepanchnama is dated as 23/08/2000 and on
the last page of said panchnama, PW4 has signed and put date as
18/08/2000. Similarly, there appears to be overwriting on the date of
seizurepanchnama and letter [Exh.55] bears a signature of Yadavrao with
date as 15/08/2000, while envelope [Exh.52] is signed along with date as
18/08/2000. No satisfactory explanation is put forth by the prosecution
on this aspect, when it is a specific case of PW4 Yadavrao that on
18/08/2000, when police visited his house, he has produced letter of
deceased dated 22/07/2000, which he had received on 29/07/2000,
however, the same appears to have been seized on 23/08/2000. So far as
overwriting on seizurepanchnama [Exh.53] is concerned, the only
explanation put forth by PW6 Chandansing Bais, the Investigating Officer,
is that before filing of chargesheet, when he was scrutinizing the
document, he noted this mistake with reference to date of seizurepanchnama
appearing on Exh.53 as 18/08/2000 and corrected to
23/08/2000, and the reason put forth by the Investigating Officer is that
since offence was registered on 23/08/2000, he carried out correction on
seizurepanchnama as aforesaid, which explanation does not stand for any
reason as after death of deceased on 15/08/2000, A.D. was registered and
during the course of its investigation, Investigating Officer had visited the
spot and on 18/08/2000 and as per evidence of PW4 Yadavrao, he has
produced letter [Exh.55] to the police along with its envelope [Exh.52].
14] Evidence of PW3 Sanjay Deshmukh, on this aspect when
perused, it reveals that on 18/08/2000, he was called to act as panch in the
house of PW4 Yadavrao, where in his presence envelop [Exh.52] with
letter [Exh.55] came to be seized under seizurepanchnama [Exh.53]. In
view of evidence of this independent panchwitness, we find no reason put
forth by the Investigating Officer to effect change of date of seizurepanchnama
from 18/08/2000 to 23/08/2000 only for the reason that
crime was registered on that date as deposed by PW6 Chandansing Bais,
the Investigating Officer. In that view of the matter, apart from the alleged
harassment as well as dowry demand, prosecution case is not convincing
even on the count of investigation with reference to seizure of letters.
Though in his further examination, PW4 Dr. Yadavrao has deposed about
handwriting on letters [Exh.42(1) to Exh.42(3) and Exh.44] and diary
[Exh.41] to be of Vandana, since he claims to be acquainted with her
handwriting, said evidence needs to be ignored for the reason already
stated aforesaid that merely because PW1 Ashish as well as PW4
Yadavrao had stated to police that said letters and contents from diary are
in the handwriting of Vandana, the Investigating Officer took no steps to
get their claim certified by forwarding said handwriting to handwriting
expert. In the background of above evidence, having considering the fact
that the statement of PW4 Dr. Yadavrao was not recorded till 23/08/2000,
we find substance in the case of accused of his false implication after
lodging of belated report. The only reason put forth by PW4 Dr. Yadavrao
not to make any statement before police from 15/08/2000 to 23/08/2000
is stated to be that he was in confuse state of mind and whenever this topic
was discussed he had increased palliation, which does not find to be
sufficient to accept. In fact, we find that after death of Vandana on
15/08/2000, though A.D. was registered, no statements were recorded till
offence came to be registered on 23/08/2000, as PW6 Chandansing Bais,
the Investigating Officer had admitted that during investigation of A.D., no
statements of any witness were recorded till 23/08/2000. He claims to
have knowledge of recording statements at the earliest. However, since in
the instant case, statements were not recorded for a period of eight days,
we find much substance when it is suggested to the Investigating Officer
that statement of witnesses recorded during the course of investigation in
A.D. are suppressed. As from those statements, it reveald that no offence
was committed by the accused, which suggestion is denied by the
Investigating Officer.
15] Coming back to the evidence of PW4 Yadavrao, he admits to
have not disclosed to police why the statement came to be recorded on
23/08/2000 about letter [Exh.55]. As according to him, it was already
seized by police on 18/08/2000. As already stated above, though Exh.53
vide which letter [Exh.55] came to be seized on 23/08/2000, PW4 Dr.
Yadavrao is firm about its seizure on 18/08/2000. Though in his earlier
evidence, Dr. Yadavrao has stated that after the incident of 15/08/2000,
his mental condition was not good and as such police did not record his
statement. He has admitted that on 18/08/2000, when he produced letter
[Exh.55] to police, his physical condition was good. In view of above
unreliable evidence and since material date with reference to seizure of
letter and envelope differs, we find much substance, when it is suggested to
Dr. Yadavrao that letter [Exh.55] is a fabricated document to bring the case
within the required ingredients of dowry death, though it is denied by him.
In the later part of his crossexamination, PW4 Dr. Yadavrao was
suggested that prior to the incident, Vandana was under medical treatment
for sustaining epilepsy attack and hallucination and delusion and thus in
spite of receiving letter [Exh.55] on 29/07/2000, no action was taken at
his end, which suggestion is denied.
16] PW4 Dr. Yadavrao was suggested that while prosecuting her
studies for D.H.M.S., Vandana could not succeed in spite of appearing for
four attempts as her mental condition was disturbed, which suggestion is
also denied by Dr. Yadavrao.
17] Considering evidence of material witnesses namely PW1
Ashish and PW4 Dr. Yadavrao on the point of cruelty provided by accused
to deceased Vandana and on demand of dowry, we do not find their
evidence to be sufficient to attract provisions of Sections 498A and 304B
of the Indian Penal Code. As in the evidence of neither of these witnesses,
there are specific allegations of cruelty as required under the law to be
established by the prosecution. The existence of cruelty cannot be proved
merely because suicide has been committed or deceased died of unnatural
death. Undoubtedly to a large extent, the concept of cruelty will be
subjective, but no claim of cruelty can be made within objective basis.
Thus, merely because victim has taken a drastic step of ending her life, it
cannot be presumed that the treatment that was being given to her was
cruel, so as to attract punishment provided for, in Section 498A of the
Indian Penal Code. Explanation to Section 498A of Indian Penal Code
makes it clear that cruelty means “any willful conduct, which is of such a
nature as is likely to drive a woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or physical) of the
woman”. The words “willful conduct” and “likely to” used in explanation
clause (a) are significant. The words “likely to” used in the said clause
show that clause (a) of explanation to Section 498A of the Indian Penal
Code requires a willful conduct to be of such a nature as would likely to
drive a woman to commit suicide or to cause grave injury or danger to life,
limb or health. The extent of cruel treatment needs to be objectively
assessed in order to see whether a reasonable or average person would
likely to be driven to commit suicide or cause grave injury to her on
account of treatment.
18] From the evidence on record, there is nothing to establish that
till the incident has occurred, deceased was subjected to cruelty to such an
extent that she was likely to be driven to commit suicide. More
particularly, when from 25/07/2000, she was in the house of PW4 Dr.
Yadavrao and the incident occurred after a gap of about 20 days thereafter.
In that view of the matter and since PW4 Dr. Yadavrao is also stated to be
not aware as to the nature of death of deceased, at the cost of repetition,
we emphasis that death of Vandana involved in this appeal by itself cannot
be considered as proof of cruelty.
19] Prosecution has neither examined Dr. Vimal wife of PW4 Dr.
Yadavrao nor Dr. Vijay Mankar, the uncle of deceased, though material,
and thus we find that it was bounden duty of prosecution to examine these
material witnesses, particularly when it is no case of prosecution that if
produced these witnesses, would not speak the truth. Under these
circumstances, withholding the material witnesses from the Court thus
casts serious reflection on the fairness of trial and thus even adverse
inference in view of illustration (g) to Section 114 of the Indian Evidence
Act can arise against the prosecution. As had these witnesses could have
been examined, Dr. Vijay Mankar could have put light on the settlement
talks, whatsoever, might have taken place at the time of settlement of
marriage with the accused and as Dr. Vimal was found in the house at the
time of incident, she must have come out with the true facts as to what
transpired at the time of incident. In the light of above evidence on record,
we find case relied on by the appellant in the matter of Ramaiah alias
Rama vs. State of Karnataka, reported in 2015(1) Mh.L.J. (Cri.) 257
useful to be referred, wherein the Hon'ble Apex Court in paragraph 22
observed thus :
“Whether her death was accidental as claimed by the defence or
it was a suicide committed by 'L', is not clearly established. Had
the allegations of demand of dowry and harassment of 'L' been
established thereby making it an offence under section 498A,
Penal Code, things would have been different. However, when
dowry demand and harassment of 'L' is not established, the
inferences drawn by the High Court taking aid of section 113B
of the Evidence Act also to be discarded.
20] According to the evidence of PW5 Dr. Dattatraya Kale, who
has performed autopsy, he noted following external injuries......
As regards surface and injuries : Head, neck, face, burn totally
(9%). Both upper limbs burnt completely (18%). Only lower
back and lower abdomen spared due to tight knicker (16+16).
Both lower limbs burnt completely except foot (16+16).
Genitalia not burnt due to tight knicker. Total percentage of
burn 91%. All these injuries were anti mortem due to burns.
….... and certified cause of death as asphyxia death due to
fire and has issued postmortem note [Exh.61]. The Medical Officer has
admitted that there are various causes by which death can be caused by
asphyxia like hanging, throttling, suffocation, drowning, and also has
stated that in the instant case, the death was due to suffocation. However,
has in clear terms admitted that on the basis of postmortem note [Exh.61],
he cannot say whether the death was accidental, suicidal or homicidal
death.
21] From the above discussed evidence, there is nothing to
establish whether death of Vandana was accidental or it was suicidal. Had
the allegations of demand of dowry and harassment to Vandana were
established thereby making an offence under Section 498A of the Indian
Penal Code, the things would have been different. However, in the absence
of such evidence and since we do not find dowry demand and harassment
to Vandana to be established, provisions of Section 304B of Indian Penal
Code cannot put into play so as to attract presumption as to dowry death.
It is necessary to show that soon before the death, deceased had been
subjected by such person to cruelty or harassment for or in connection
with, any demand for dowry. When this essential ingredient has not been
established in the present case, the question of drawing any presumption
by invoking aforesaid provisions does not arise at all.
Moreover, it is the settled legal position that even if a single
ingredients of Section 304B of the Indian Penal Code is not made out, the
presumption of Section 113 of the Indian Evidence Act will not be available
to prosecution and no burden would shift upon the defence.
22] The appellant to establish his innocence and to prove his case
had examined DW1 Nitin Jaiswal, who passed M.B.B.S., D.P.M. and was
practicing at hospital at Yavatmal, where in the year 1999, accused had
brought deceased wife Vandana for treatment, who was suffering from
grand mal epilepsy, who whom he examined and found her current mental
status with hallucinations particularly visual moderately present, delusions
persecutory type moderately present with depressed mood. He diagnosed
that patient was suffering from grant mal epilepsy with post epileptic
psychosis and continued treatment after seeking opinion of Dr.
Chandrashekhar Meshram. The expert has stated that he also noted her
marital relationship with the spouse to be not good having suspecting his
character and was found in a habit of writing irrational stories, irrational
letters, making rangolies occasionally and having irrelevant talks on
sustaining epileptic attack with abusive and assaultive behavour, angry
outburst, writing suicidal notes and letters without informing anyone. The
marklist of final year D.H.M.S. Course [Exh.57] on record in respect of
deceased Vandana when perused it reveals that consecutively she failed in
the final year of above said examination in all four attempts. Which
document corroborates the version of DW1 Dr. Nitin Jaiswal. From the
evidence of Dr. Jaiswal, it is further noted that Vandana was required to
take treatment throughout her life span and has accordingly issued report
[Exh.75]. Nothing material could be achieved in his cross examination to
doubt his evidence. Except for suggesting that false documents were
prepared 15 days prior to his deposing before the Court, which is duly
denied by DW1 and that suggestion even otherwise does not stand for any
reason as it was already suggested to PW1 Ashish in the fag end of his
crossexamination, which is recorded on 17/03/2004 that Vandana was
provided treatment by DW1 Dr. Nitin Jaiswal in the year 1999 for
sustaining epilepsy, hallucination and delusion. In that view of the matter,
we do not find any reason to disbelieve [Exh.75] report issued by DW1 Dr.
Nitin Jaiswal.
23] The defence to dislodge the case of prosecution on account of
dowry demand has examined DW2 Bhaskar Raut, who has stated that Dr.
Vijay Mankar, who is uncle of deceased and husband of his sisterinlaw,
was present at the time of settlement of marriage of accused with deceased,
which came to be settled in the presence of parents of accused, brother,
relatives, where it was agreed that marriage was to be solemnized at
Pandharkawada and the marriage expenses were agreed to be born by both
sides respectively and not to make any heavy expenses. Nothing material is
elicited in his crossexamination except for suggesting that he was not
present at the time of settlement of marriage and that it was agreed to pay
Rs.80,000/ in cash and a four wheeler to accused, out of which
Rs.65,000/ was agreed to be paid at the time of marriage and balance
amount and four wheeler to be given after marriage, which suggestion is
duly denied by him.
For the reasons stated aforesaid, thus, there is no convincing
evidence of PW1 Ashish and PW4 Dr. Yadavrao on the point of settlement
talks, if any, took place at the time of marriage of deceased and for nonexamination
of material witnesses on this aspect, we find nothing to
discard the evidence of DW2 Bhaskar Raut.
24] On perusal of evidence of DW3 Sheikh Maroof Sk. Ahmed, it
has come on record that on 25/07/2000, PW1 Ashish, when visited Partur
to bring his sister back along with him to Umerkhed, had met this witness
in the college and handed over keys of her quarter for being supplied to
accused. However, his evidence does not establish nor it is suggested to
this witness in the cross examination that PW1 Ashish, while taking
Vandana with him to Umerkhed, at the time of handing over keys, had
informed the reason for his taking Vandana with him. Similarly, evidence
of this witness falsifies evidence of PW1 Ashish of accused threatening
deceased not to show her face till she brings the balance amount of dowry
and four wheeler, as if accused at that time was present, there was no
reason for PW1 Ashish to give keys of house of accused to DW3 Sheikh
Ahmed.
25] Having scrutinizing evidence, as aforesaid, and in view of the
settled legal principle that the defence witnesses are entitled to equal
treatment with those of the prosecution, we are therefore of the opinion
that as a result of cumulative discussion as above, the appellant has to
succeed as in this case, there is practically no evidence to show that there
was any cruelty or harassment for or in connection with the demand of
dowry. This deficiency in evidence proves fatal for the prosecution case.
Even otherwise mere evidence of cruelty and harassment is not sufficient to
bring in application of Section 304B of the Indian Penal Code. It has to be
shown in addition that such cruelty or harassment was for or in connection
with the demand for dowry. Since the prosecution failed to prove that
aspect, the conviction as recorded cannot be maintained. We accordingly
allow this appeal. We set aside the judgment of the Court below and pass
the following order.
Criminal Appeal No. 8/2005 is allowed.
The conviction imposed upon the appellant for the offences
punishable under Sections 498A and 304B of the Indian
Penal Code is set aside.
His bail bond stands cancelled.
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