The State Of Maharashtra vs Ashok & Ors.

. This is an appeal impugning the judgment and order dated 10.03.2004 passed by the learned Ad-hoc Additional Sessions Judge, Aurangabad (hereinafter referred to as “the learned Trial Court”), acquitting the present respondents (original accused Nos. 1 to 4) in Sessions Case No. 154 of 2002 of the offences punishable under Sections 498-A, 304-B read with Section 34 of the Indian Penal Code (for short, “IPC”).

The prosecution case, in brief, is as follows :-

The marriage of deceased Rupali with respondent No. 1 - Ashok was solemnized about three years prior to the date of incident. After marriage, the deceased started residing with the respondents (original accused Nos. 1 to 4), namely, Ashok Prakash Suresh (husband), Yogesh Prakash Suresh (brother-in-law), Prakash Keshav Suresh (father-in-law) and Vatchhalabai Prakash Suresh (mother-in-law), at their residence at Vaijapur.

At the time of settlement of marriage, the informant Suresh Baburao Gadhekar i.e. father of the deceased had agreed to give an amount of Rs. 50,000/- and a gold ring weighing one tola, as dowry, to respondent No. 1. However, at the time of marriage, he could only pay Rs. 30,000/-, and had assured to pay the remaining Rs. 20,000/- after one year.

It is alleged that the deceased was initially treated well by the respondents, but thereafter, all of them started beating and subjecting her to cruelty for bringing the remaining dowry amount and would often drive her out of the house. The deceased used to inform the informant about the cruelty meted out to her by the respondents. She would urge him to pay the remaining dowry amount at the earliest as the respondents were subjecting her to cruelty on that count.

About one year prior to the incident, the deceased had come to her parental home and informed that she was driven out of the house with an ultimatum from the respondents to return with the remaining dowry amount. The informant then went to the house of the respondents and handed over Rs. 10,000/- to respondent No.1. He thereafter left the deceased at the residence of respondents after assuring them to pay the remaining amount of Rs. 10,000/- soon. Again after six months, the deceased came to the informant and informed him that the respondents had driven her out of the house for bringing the remaining amount of Rs. 10,000/-. However, he sent her back with an assurance that he would pay the remaining amount in due course. Again on the occasion of Rakhi Pournima when the deceased had been to Nashik at her parental house and also on 13.10.2001 when she met the informant, she told him about the cruelty meted out to her by the respondents on account of the demand of Rs. 10,000/-.

Thereafter, on 20.10.2001, between 10.30 p.m. and 11.30 p.m., respondent No. 2 informed the informant over phone, that the deceased had sustained burns while cooking due to the stove catching fire, and that her condition was critical. By the time the informant and his relatives reached Vaijapur, the deceased had already succumbed to her burns. On the same day, the informant lodged a complaint against the respondents at Vaijapur Police Station. On the basis of the complaint, Crime No. I-143/2001 was registered against the respondents for the offences punishable under Sections 498-A and 304-B read with Section 34 of the Indian Penal Code (for short ‘IPC’).

The postmortem report revealed 98% burn injuries and the cause of death was opined as ‘cardio-respiratory failure due to burns’. Upon completion of investigation, chargesheet was filed against all the respondents, and the trial proceeded on committal of the case. The learned Trial Court framed charges against all the respondents for the offences punishable under Sections 498-A and 304-B read with Section 34 of the IPC. The respondents pleaded not guilty and claimed to be tried.

To bring home the charge, the prosecution examined in all 8 witnesses i.e. PW-1 - Suresh Baburao Gadhekar – Informant and Father of the deceased. PW-2 -Meena Suresh Gadhekar - Mother of the deceased, PW-3 -Appasaheb Suryabhan Nalawade - Neighbour of the deceased and Panch Witness, PW-4- Pushpa Bhaskarrao Baravkar - Witness to the Inquest Panchanama, PW-5-Anand Shankarrao Patil - Doctor, who conducted the autopsy, PW-6- Bhaskar Shrihari Barvkar- Mediator and Maternal Uncle of father of the deceased, PW-7- Gajanan Patilba Jaibhaye- Police Inspector who submitted the chargesheet and PW-8- Namdev Waman Gavli, Investigating Officer.

The learned Trial Court, after conducting the trial and considering the evidence on record, by its judgment and order dated 10.03.2004, acquitted all the respondents of the charges levelled against them. Being aggrieved by the said judgment and order of acquittal, the State has preferred the present appeal.

Heard learned APP appearing for the appellant -State and learned counsel appearing for the respondents. With their able assistance, we have perused the judgment and order passed by the learned Trial Court, notes of evidence as well as the original record and proceedings.

It is argued by learned APP that the prosecution has brought on record sufficient and cogent evidence of Suresh Baburao Godhekar (PW-1), Meena Suresh Gadhekar (PW-2) and Bhaskar Shrihari Barvkar (PW-6), which would clearly show the involvement of the respondents in the commission of the crime, in as much as all the aforesaid witnesses have stated that the respondents ill-treated and harassed the deceased soon before her death. Learned APP submitted that the death has occurred within seven years from the date of marriage, and therefore, prayed that the appeal be allowed.

Learned counsel for the respondents submitted that there is no evidence to show that the respondents had ever demanded the amount of dowry or that the deceased was ever subjected to cruelty and harassment by them in connection with the demand of dowry. Learned counsel by relying upon the reasons recorded by the Trial Court submitted that the Trial Court has recorded the findings in consonance with the evidence on record and since there is no perversity in the judgment passed by the Trial Court, urged for dismissal of the appeal.

Before appreciating the evidence on record, it will be relevant to refer to Sections 498-A and 304-B of the IPC, which read thus :-

After reading the aforesaid sections, it becomes clear that for an offence under Section 304-B of the IPC, the prosecution must establish: (i) death by burns or bodily injury or otherwise than under normal circumstances; (ii) death within seven years of marriage; (iii) the woman was subjected to cruelty or harassment soon before her death; and (iv) such cruelty or harassment was for or in connection with dowry demand. The expression "soon before her death" mandates a proximate link between the cruelty and the death. Similarly, for an offence under Section 498-A, the prosecution must prove that the accused subjected the woman to cruelty, which includes willful conduct likely to drive her to suicide or cause grave injury, or harassment in connection with an unlawful demand for property or valuable security.

In this case, there is no dispute that the death of the deceased occurred within seven years of marriage. The only question for consideration is whether the prosecution has proved that the deceased was subjected to cruelty or harassment soon before her death.

To prove the demand of dowry, the prosecution examined Suresh Godhekar (PW-1), Meena Gadhekar (PW-2) and Bhaskar Barvkar (PW-6).

PW-1, the father of the deceased, has given fatal admissions in his cross-examination, which were conspicuously absent in his statement given to the Police. The omissions are (i) that in November, 1999, he had brought the deceased to his house for her delivery and at that time, she was not happy as usual; (ii) that in June or July, 2000, when the deceased had come to her parental home, that time she had informed him that the respondents were subjecting her to cruelty on account of unlawful demand of Rs.20,000/- and that he had assured her that he will pay the remaining amount to them; (iii) that respondent No. 3 had once assaulted the deceased with a broom; (iv) that respondent no.4 had pulled the hair of the deceased; (v) that many times the respondents did not allow her to take food; (vi) that he had paid Rs.10,000/-to respondent No.1 in presence of Bhaskar Barvkar (PW-6) and Fakirrao Shirsat.

PW-2- the mother of the deceased, has also given fatal admissions in her cross-examination, which have led to grave omissions. Those are :- (i) that at the time when the deceased had come to her parental house for delivery, she had informed that all the respondents were demanding the remaining dowry amount of Rs. 20,000/-and were subjecting her to cruelty on that count; (ii) that the deceased had informed her that the respondents were preventing her from taking meals; (iii) that after 2-3 months of stay at the residence of PW-2, respondent Nos. 3 and 4 took the deceased back to their residence; (iv) that again after 4-5 months, the deceased returned to PW-2 and repeatedly told her about the cruelty meted by the respondents demanding the remaining dowry amount; (v) that again after 5-6 months, before her death, the deceased had come to her complaing about the cruelty and on the next day, PW-1 took the deceased back to the residence of the respondents and handed over the amount of Rs.10,000/- in presence of Bhaskar Barvkar and Fakir Shirsat.

PW-6- Bhaskar Barvkar, the mediator and maternal uncle of the deceased’s father, has also given fatal admissions in his cross-examination, leading to grave omissions, which are :- (i) that after 14 months of marriage, the deceased had gone to her parental house without intimating anything to him; (ii) that on the next day morning, the deceased along with PW-1 Suresh and Fakir Shirsat, had come to him and they all proceeded to the residence of the respondents where PW-1 handed over Rs. 10,000/- to respondent no.1; (iii) that after one month of payment of Rs. 10,000/-, the respondents had driven the deceased out of the house, asking her to bring the remaining dowry amount of Rs. 10,000/-; (iv) that immediately after the deceased reached his residence, PW-1 Suresh had informed him about her being driven out of the house; (v) that respondent No.1 was serving as a Village Development Officer at Paranda and was not keeping the deceased with him to co-habit; and (vi) that on 13.10.2001, when PW-1 had come to Vaijapur on account of "Dhondyacha Mahina" and offered new clothes to respondent Nos.3 and 4, the deceased told him that the respondents were subjecting her to cruelty on account of the remaining dowry amount of Rs. 10,000/-.

PW-1, PW-2 and PW-6 expressed their inability to tell as to why these facts are absent from their police statements. This inability to offer a plausible explanation, coupled with the fact that these serious allegations of cruelty do not form part of their earlier statements given to the police render these assertions as improvements made during the trial and amount to contradictions. These omissions are substantive and go to the core of the prosecution case. These omissions are significant and relevant, and therefore, by virtue of Explanation to Section 162 of the Code of Criminal Procedure, 1973 (for short, ‘CRPC’) the same amounts to contradictions. The omission of these specific instances of alleged ill-treatment stated in the statement given to the Police is a material improvement, rendering the subsequent introduction of these facts as an afterthought. Consequently, the testimony of PW-1, PW-2 and PW-6 cannot be relied on to prove the offence under Sections 498-A and 304-B of the IPC.

Further, the prosecution has failed to adduce any cogent evidence to establish that the death of the deceased was suicidal. The mere fact that she suffered burn injuries is not conclusive. While the prosecution's case is that the deceased set herself ablaze, the evidence on record is silent in this regard. The Investigating Officer, PW-8, admitted that while some partly burnt clothes of the deceased were lying at the spot, they were not seized or sent for chemical analysis. A forensic analysis of the clothes was crucial to determine whether there was presence of kerosene or any other inflammable substance on it. This would have been a conclusive proof to ascertain whether the fire was an act of self-immolation or an accident caused by the stove catching fire, which is an undisputed fact, as the deceased was cooking in the kitchen at the time of the incident. This failure by the investigating agency to seize and send the material object for chemical analysis creates a fatal lacuna in the prosecution case. In the absence of such evidence, it cannot be concluded that the death was suicidal, further weakening the prosecution’s case of dowry death.

It is also pertinent to note the financial standing and social status of the respondent family at the time of the incident. The evidence on record indicates that accused No.1-respondent No. 1 (husband of the deceased) was serving as a Village Development Officer at Village Paranda since prior to his marriage. Also, accused No.3-respondent No. 3 (father-in-law of the deceased) was employed as a teacher in a Zilla Parishad Primary School at Vaijapur. The respondent family also owned a residential house at Vaijapur. These facts collectively demonstrate that the respondents were financially sound and well-placed. In such circumstances, the prosecution’s case that the respondents subjected the deceased to extreme cruelty for a demand of Rs. 20,000/- as dowry, appears improbable and does not inspire confidence.

The omissions in the statements of the prosecution witnesses are crucial and fatal to the case. The evidence on record does not establish that the deceased was subjected to cruelty or harassment "soon before her death," which is a mandatory requirement to attract the provisions of Section 304-B of the IPC. As the demand for dowry itself remains unproved, it cannot be said that any alleged harassment was for or in connection with such a demand, so as to drive the deceased to commit suicide. The vague incidents quoted by the witnesses do not indicate a nature or gravity sufficient to prove that her death occurred otherwise than under normal circumstances. Consequently, the prosecution has failed to establish the chain of events linking the alleged cruelty to the untimely death of the deceased, and the essential ingredients of Section 304-B and Section 498-A of the IPC are not satisfied.

Even to attract the ingredients of Section 498-A of the IPC, the prosecution must show specific acts of the accused suggesting cruelty and harassment. Conviction cannot be based on such general and vague allegations made by the witnesses by reversing the well-reasoned order of acquittal passed by the Trial Court.

For the reasons stated in the forgoing paragraphs, we are of the considered view that the findings recorded by the Trial Court are in consonance with the evidence on record and there being no perversity as such, the Criminal Appeal is liable to be dismissed. Hence, the Criminal Appeal stands dismissed. Bail bonds of the respondents – original accused, if any, shall stand surrendered.