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Judgment
The appellant has challenged the judgment and order dated 26/08/2005 passed by the Ad hoc Addl. Sessions Judge, Buldhana (Trial Court) in
Sessions Trial No.34 of 2005, whereby he stood convicted under sections 304ÂB and 498ÂA of the Indian Penal Code (IPC) and sentenced to suffer
rigorous imprisonment for the period of seven years and three years respectively and to further pay fine amount of Rs.5,000/Â. The appellant was
charged with having committed the said offences along with his mother (accused No.2), but his mother stood acquitted of all charges in the present
case.
The prosecution case in brief was that the appellant and the victim i.e. Lalita were married on 06/05/2004 and she went to reside with the appellant
and his parents in the matrimonial house at village Belaad. She was treated properly for about 2 months after marriage, but, thereafter she was
allegedly illÂtreated and assaulted by the appellant and his parents, demanding a cupboard from her or an amount of Rs.5,000/ in lieu thereof. The
father of the victim i.e. Vilas Sonavane, PWÂ3, the complainant promised the appellant and his parents that he would provide the cupboard or
Rs.5,000/ within a short period of time. Â
In the month of November, 2004, victim Lalita came to the house of her parents for Diwali. When the appellant and his father went to fetch
victim Lalita from her matrimonial house after the festival of Diwali, they repeated the said demand to the father of the victim i.e. the complainant
herein. This demand was allegedly made in the presence of neighbour Raju Kapdne (PWÂ5). On 03/12/2004, the complainant (PWÂ3) sent his
son Amar (PWÂ11) to the matrimonial house of victim Lalita. On coming back from the matrimonial house, the said Amar PWÂ11 told the
complainant PWÂ3 that the appellant and his parents had assaulted victim Lalita as she had not brought cupboard. According to the prosecution,Â
being fed up with the harassment meted out by the appellant and his parents, victim Lalita consumed poison on 05/12/2004 and she died.  Â
The incident was said to have occurred in the afternoon on 05/12/2004 and upon being informed, the complainant PWÂ3 i.e. father of victim Lalita
reached the matrimonial house. On 06/12/2004, the complainant PWÂ3 received ornaments from the Police, that were found on the body of
deceased Lalita. He signed a document titled as “Property Received†ExhibitÂ18 wherein the details of the gold ornaments were stated and it
was also stated that he had no complaint whatsoever. Thereafter, on 07/12/2004 at about 1.05 PM, the complainant PWÂ3 i.e. the father of
deceased Lalita submitted an oral report before the Police, alleging that his daughter had been harassed on demand of dowry by the appellant and his
parents, driving her to consume poison leading to her death, which resulted in registration of first information report (FIR) against the appellant and his
parents under sections 306, 498ÂA and 304ÂB read with section 34 of the IPC. Â
Investigating Officer Shashikant Sakhalkar (PWÂ9) conducted investigation in the matter and submitted chargeÂsheet. In the interregnum, the
father of the appellant died and hence the chargeÂsheet was filed only against the appellant and his mother (accused No.2). Â
In support of its case, the prosecution examined 11 witnesses. PWÂ1 and 2 were panch witnesses for spot panchnama, but, both turned hostile.Â
PWÂ3 Vilas Sonavane (complainant) was the father of the deceased, PWÂ4 Shobha Sonavane was the mother of the deceased, PWÂ5 Raju
Kapadne was the neighbour of PWÂ3 complainant, PWÂ6 Ashok Surwade was the Police Officer, who recorded the report leading to registration of
FIR, PWÂ7 Sanjay Ingale and PWÂ8 Sandip were the panch witnesses for inquest panchnama, PWÂ9 Shashikant Sakhalkar was the Investigating
Officer, PWÂ10 Narayan Suryawanshi was the Police Officer examined for proving the spot panchnama and PWÂ11 Amar Sonavane was the
brother of the deceased. The material witnesses in the present case were PWÂ3, PWÂ4, PWÂ5, PWÂ6, PWÂ9 and PWÂ11. On the basis of
the evidence on record, the Trial Court found that while there was insufficient evidence to prove the prosecution case against accused No.2 i.e.
motherÂinlaw of deceased Lalita, it was held that there was sufficient material to convict and sentence the appellant (husband of the deceased) under
sections 304ÂB and 498ÂA of the IPC. Aggrieved by the impugned judgment and order of the Trial Court, the appellant has filed the present
appeal. Â
Mr. P. R. Agrawal, learned counsel appearing on behalf of the appellant, submitted that the impugned judgment and order of the Trial Court
convicting only the appellant was not sustainable because the evidence on record was such that it was inseparable as regards the allegations made
against all the accused. It was submitted that when on the same set of evidence, the mother of the appellant had been acquitted, the appellant could
not have been convicted by the Trial Court. It was further submitted that in the facts and circumstances of the present case, FIR was registered
after delay of about 2 days, which was fatal to the prosecution case. It was submitted that even as per the evidence of the complainant PWÂ3 (the
father of the deceased), he had reached the matrimonial house of his daughter on the date of the incident i.e. 05/12/2004 itself and that he had even
collected the ornaments found on the body of his deceased daughter on 06/12/2004. Yet, when Police was available from 05/12/2004 onwards, the
complainant PWÂ3 had not submitted any report against the accused. The Police also had not found it fit to register any report against the accused
despite having reached at the spot of the incident on 05/12/2004 itself. According to the learned counsel, in such circumstances, registration of FIR
on 07/12/2004 was highly belated and that there was evidence on record to show that there was a meeting convened by the complainant PWÂ3 with
relatives and a false case was sought to be created against the accused. It was further submitted that there were discrepancies in the evidence of
the material prosecution witnesses and that the demand of dowry was general in nature and that specific evidence about such demand soon before the
death of said Lalita was absent. It was submitted that in these circumstances, the findings rendered by the Trial Court were unsustainable. The
learned counsel for the appellant relied upon the judgments of the Hon'ble Supreme Court in the case of Balaka Singh and others v. The State of
Punjab, reported in (1975) 4 SCC 511, Ramaiah alias Rama v. State of Karnataka, reported in AIR 2014 SC 3388 and Manoj Kumar Sharma and ors.
v. State of Chhattisgarh and Anr., reported in 2017 Cri.L.J. 418.
Per contra, Ms Geeta Tiwari, learned APP appearing on behalf of the respondentÂState, submitted that the findings rendered by the Trial Court
were based on proper appreciation of the evidence and material on record and that the appeal deserved to be dismissed. It was submitted that in the
facts and circumstances of the present case, FIR could not be said to be delayed because the complainant PWÂ3 was the father of the deceased
and that he could have been in a disturbed mental state for some time, before gathering courage to approach the Police for registration of FIR against
the accused. It was submitted that the evidence of the prosecution witnesses, particularly PWÂ3 the complainant, PWÂ4 mother of the deceased
and PWÂ11 the brother of the deceased was sufficient to show that there had been harassment by the accused on the ground of demand of dowry
soon before the death of the said Lalita. On this basis, it was submitted that the appeal deserves to be dismissed. Learned APP placed reliance on
the judgments of the Hon'ble Supreme Court in the case of State of West Bengal v. Orilal Jaiswal and another, reported in (1994) 1 SCC 73 and State
of Maharashtra v. Rajendra and others, reported in AIR 2014 SC (Supp.) 1448.
Heard counsel for the parties. In the present case, the first question that is required to be considered is, as to whether registration of FIR was
delayed and whether such delay was satisfactorily explained by the prosecution. Consequently, the question that further arises for consideration is,
as to whether such delay could be said to be fatal to the prosecution case. The evidence and material on record shows that victim Lalita consumed
poison and died in the afternoon on 05/12/2004. Information about the said incident was given to the complainant PWÂ3 (father of the deceased) on
the same day and he arrived at the matrimonial house. The body of the victim was sent for postmortem examination. The report showed that there
were no external injuries on the body of the deceased. The opinion as regards the cause of death was reserved as the viscera was sent for analysis.
Later, since the report showed presence of poison in the form of insecticides, the cause of death was the poison consumed by the deceased. The
material on record shows that the complainant PWÂ3 was with the body of the deceased from the date of the incident i.e.
05/12/2004.        Â
ExhibitÂ18 is a document dated 06/12/2004 bearing the thumb impression of the complainant PWÂ3 acknowledging receipt of gold ornaments
found on the body of his deceased daughter. It is stated in the said document that he had no complaint whatsoever. In his evidence before the
Court, PWÂ3 has accepted the genuineness of the document. It has also come on record that Police was present right from the time when the
report of accidental death of victim Lalita was received at 3.20 PM on 05/12/2004 itself. The said ornaments found on the body of the deceased
were collected by the complainant PWÂ3 on 06/12/2004 from the Police. But, the oral report leading to registration of FIR was submitted by the
complainant PWÂ3 in the afternoon on 07/12/2004 at about 1.05 PM. This was about 2 full days after the incident, during which the complainant
PWÂ3 and his family were very much present at the place of the incident and the happenings thereafter. It is strange that despite Police being
available and the complainant PWÂ3 himself having reached the matrimonial house of his deceased daughter on the very date of the incident, he did
not find it fit to raise grievance against the appellant and his parents for 2 full days. Even the Police did not take any action for registration of offence
against the appellant and his parents, despite having recorded statements after registration of initial report of accidental death under Section 174
of Cr.P.C.
In this regard, the evidence of PWÂ3 complainant shows that he has admitted the correctness of the aforesaid document dated 06/12/2004 at
ExhibitÂ18 whereby he had received the gold ornaments from the Police. The evidence of PWÂ11 Amar i.e. the brother of the deceased shows
that he stated in crossÂexamination about his family members being annoyed due to the death of his sister Lalita. It is also stated by him that after
the funeral, his father, he himself, their neighbour PWÂ5 and another neighbour decided to lodge report against the appellant and his parents. PWÂ5
Raju (neighbour of complainant PWÂ3), on the other hand stated in crossÂexamination that it was not true that they decided in a meeting after the
funeral to lodge report against the appellant and his parents. The aforesaid evidence of the witnesses shows that there was discussion in the family
of the complainant PWÂ3 after the death of victim Lalita and funeral. The claims made by the prosecution witnesses about demand of dowry in the
form of cupboard or cash of Rs.5,000/Â by the appellant and his parents, pertained to time period prior to the date of the incident i.e. 05/12/2004.
Despite having knowledge of such demand of dowry by the appellant and his parents and there allegedly being anger in the family members of the
complainant PWÂ3, in respect of such demand, it is unnatural that the complainant PWÂ3 did not mention such a grievance to the Police or for that
matter to anybody else till 07/12/2004 i.e. 2 full days after the date of the incident. The facts of the present case and the nature of evidence of the
material prosecution witnesses, thus, indicate that claims of demand of dowry were made by the said witnesses in order to implicate the appellant and
his parents after having put thought into the matter, without there being any spontaneity in their actions. There is no evidence on record to show that
either the complainant PWÂ3 was not immediately informed about the incident by the appellant and his parents or that he was in such a state of mind
that he could not lodge the report for 2 full days, despite the fact that the Police was present immediately after the incident occurred on 05/12/2004.Â
The fact that grievance was raised as regards dowry demand in a belated manner adversely affects the genuineness of the prosecution case.
In the case of Ramaiah alias Rama v. State of Karnataka (supra) relied upon by the learned counsel for the appellant, in similar circumstances
when there was delay about 3 days in lodging report for offences under sections 304ÂB and 498ÂA of the IPC, the Hon'ble Supreme Court found
that when the relatives of the deceased reached the place of death and they were present during cremation, it was inexplicable as to why there was a
delay of 3 days in lodging report against the accused. The Hon'ble Supreme Court has taken note of the fact that there could not be any hard and
fast rule as to the duration of time consumed before lodging a report in such cases, but, when there was such a delay, it was necessary for the
prosecution to at least come forward with an explanation as to why the complainant kept quiet and he did not report the matter to the Police
immediately. In the present case, the prosecution has failed to come forward with any cogent explanation as to why the complainant PWÂ3 did not
report the matter immediately to the Police and kept quiet for 2 full days. Therefore, in the facts and circumstances of the present case, delay in
registration of FIR creates a serious doubt about the genuineness of the claims of dowry demand and harassment in that context made against the
appellant and his parents. It appears that in the present case the report lodged by the complainant PWÂ3 leading to registration of FIR was a
creature of an afterthought. Absence of spontaneity in registration of FIR leads to danger of an exaggerated story being introduced by the prosecution
against the accused, which may result in embellishment, thereby adversely affecting the prosecution case.
In the present case also, it appears that the FIR was the result of an afterthought, thereby adversely affecting the prosecution case.
Apart from this, perusal of the evidence of the material prosecution witnesses, as regards alleged demand of dowry in the form of cupboard or
cash of Rs.5,000/Â, shows that allegations of such demand were made against both the appellant and his mother (accused No.2). The complainant
PWÂ3 claimed in his examinationÂinÂchief that after about 2 months of marriage, the accused No.1 (appellant No.1) and accused No.2 (his mother)
had both made identical demand from him and his family. Thereafter, he has stated that the accused illÂtreated and harassed as also assaulted
victim Lalita in the context of the said demand. There was no separate role attributed to the appellant as compared to that of his mother (accused
No.2) with regard to such illÂtreatment meted out to victim Lalita in the context of such dowry demand. The mother of the deceased i.e. PWÂ4
also gave evidence in the same manner and there was no separate role attributed to the appellant as compared to that of his mother (accused
No.2). The brother of the deceased i.e. PWÂ11 made allegations against not only the appellant, but also his parents as regards the aforesaid
demand and the harassment that his sister (deceased Lalita) suffered in the context of the said demand. These witnesses not only claimed that
deceased Lalita had told them about such demands made by the accused, but, that they made such demand in their presence also.
The same set of evidence was on record as regards such demand and harassment to the deceased and yet the Trial Court found that there was
insufficient evidence against the accused No.2 (mother of the appellant) of having illÂtreated or inflicted cruelty on the deceased in the context of the
aforesaid demand. If the evidence on record was found to be insufficient to prove the guilt of the mother (accused No.2), there was no discussion
in the impugned judgment and order of the Trial Court as to how the same set of evidence was enough to prove the guilt of the appellant. The acquittal
of the mother (accused No.2) and absence of any challenge to the same, has an adverse affect on the conviction of the appellant in the facts and
circumstances of the present case. In the case of Balak Singh and others v. The State of Punjab (supra) the Hon'ble Supreme Court found that
when all the witnesses had in one breath implicated 4 accused, who were found to be innocent then one could not vouchsafe for the fact that the
evidence of the said witnesses was sufficient to convict the other accused. The same logic applies to the facts of the present case and it shows that
if on the very same evidence, the accused No.2 (mother of the appellant) was entitled for acquittal, so was the appellant. This further demonstrate
the error committed by the Trial Court in the impugned judgment and order.
A perusal of the evidence of the aforesaid material prosecution witnesses shows that there are discrepancies and inconsistencies in the
evidence. The complainant PWÂ3 claimed that his neighbour PWÂ5 had come with him to the hospital at Malkapur after the incident, while the
said witness PWÂ5 claimed in his evidence that he did not go to Malkapur along with the complainant PWÂ3 after the death of the said Lalita. PWÂ‐
11, the brother of the deceased admitted in his crossÂexamination that at the time of lodging of report on 07/12/2004, he was present along with his
father (PWÂ3), the said neighbour PWÂ5 and another neighbour.  These discrepancies create a doubt about the prosecution story.
A perusal of the evidence of the said material prosecution witnesses also shows that there were material omissions brought out in crossÂ‐
examination. The complainant PWÂ3 admitted that his claims of harassment, illÂtreatment and assault on the deceased were made to the Police
but he could not explain as to why they were not found in the statement recorded by the Police. Similarly, the fact that he had sent his son PWÂ11
to the matrimonial house of his daughter to see her condition was also not recorded in the statement made to the Police and other such omissions were
also brought on record. The evidence of PW4 mother of the deceased shows that in the crossÂexamination she stated that the Police did not even
record her statement. The evidence of PWÂ5 (neighbour) showed that his claim that he was called to the house of the complainant PWÂ3 as there
was a dispute pertaining to money between the complainant PWÂ3 and the accused, was an omission. The evidence of PWÂ11 (brother of the
deceased) also showed that there were omissions pertaining to illÂtreatment and assault suffered by his sister deceased Lalita in the context of the
aforesaid demand by the accused.
The aforesaid discrepancies and omissions in the evidence of the material prosecution witnesses, clearly show that there were major
improvements sought to be made by these witnesses in their evidence before the Court. There were embellishments and claims made by these
witnesses in order to prove the guilt of the accused. If the claims made by the material prosecution witnesses were to be true, the complainant
PWÂ3 would not have waited for a period of 2 full days to approach the Police for registration of FIR against the accused. As a result, the entire
prosecution case is rendered doubtful and a product of afterthought of the material prosecution witnesses. The allegations pertaining to demand and
harassment inflicted upon deceased Lalita made by the material prosecution witnesses are all identical. The evidence shows that there is lack of
genuineness and natural conduct on the part of the material prosecution witnesses. Consequently, the entire prosecution case appears to have been
created after a process of thought being put in by the complainant PWÂ3 and others due to which there is lack of spontaneity. As the evidence of the
material prosecution witnesses lacks credibility, it cannot be said in the facts and circumstances of the present case that there was material to show
that deceased Lalita was subjected to cruelty or harassment in connection with demand of dowry soon before her death as contemplated under
section 113ÂB of the Indian Evidence Act, 1872. As a result, the presumption as to dowry death was not triggered in the present case against the
accused.
The reliance placed by the learned APP on the judgments of the Hon'ble Supreme Court in the case of State of West Bengal v. Orilal Jaiswal and
another and State of Maharashtra v. Rajendra and others (supra) does not take the prosecution case any further because in the said judgments, the
Hon'ble Supreme Court found on facts that the accused were indeed guilty of offences under sections 304ÂB, 498ÂA and 306 of the IPC. In the
case of State of West Bengal .Vs. Orilal Jaiswal (supra), the Hon'ble Supreme Court found that the brother of the deceased had given a written
complaint to the Police on the very day of the incident indicating that the death was unnatural and that her inÂlaws were to blame. It was further
found that on the very next day the mother had made a statement to the Police indicating the plight of her deceased daughter and the physical and
mental torture to which she was subjected by the accused. But, in the present case neither the complainant PWÂ3 nor PWÂ4, the parents of
deceased Lalita, took any immediate steps to inform the Police about the alleged dowry demand made by the accused and the harassment and cruelty
inflicted by them on deceased Lalita in that context. Thus, on facts, the said judgments of the Hon'ble Supreme Court are distinguishable.
An analysis of the evidence and material on record in the present case clearly shows that the prosecution could not place on record sufficient
material to prove its case beyond reasonable doubt against the appellant. The delay in registration of the FIR, in the facts and circumstances of the
present case, was fatal to the prosecution case. There were major discrepancies and omissions in the evidence of the prosecution witnesses, further
weakening the case of the prosecution. Additionally, when the Trial Court found that accused No.2 (mother of the appellant) could not be convicted
on the basis of the evidence on record, on the same set of evidence, the appellant could not have been convicted. It was not the case of the
prosecution that a specific separate role was attributable to the appellant on the basis of the evidence and material on record. The evidence on
record in the context of both the accused was identical and inseparable. Consequently, when accused No.2 (mother of the appellant) stood
acquitted, and her acquittal attained finality, the appellant could not have been convicted by the Trial Court.
In the light of the above, it is found that the conviction and the sentence imposed by the Trial Court on the appellant is unsustainable.Â
Consequently, the present appeal is allowed. The impugned judgment and order passed by the Trial Court is quashed and set aside. Since the
appellant was on bail, his bail bond shall stand cancelled. The fine amount paid by the appellant shall be refunded.Â