Financial assistance not dowry Appasaheb and Anr. Vs. State of Maharashtra: Supreme Court

CASE NO.:
Appeal (crl.) 1613 of 2005

PETITIONER:
APPASAHEB AND ANR.

RESPONDENT:
STATE OF MAHARASHTRA

DATE OF JUDGMENT: 05/01/2007

BENCH:
G.P. MATHUR & R.V. RAVEENDRAN

JUDGMENT:
JUDGMENT

G.P. MATHUR, J. :

1. This appeal, by special leave, has been preferred against the judgment
and order dated 23.2.2005 of Bombay High Court (Aurangabad Bench), by which
the appeal preferred by the appellants was dismissed and their conviction
under Section 304-B read with Section 34 IPC and sentence of 7 years RI
imposed thereunder by the learned Sessions Judge, Aurangabad, was affirmed.

2. The deceased Bhimabai was daughter of PW.1 Tukaram Eknath Tambe resident
of village Sanjkheda and she was married to appellant no. 1 Appasaheb son
of Sheshrao Palaskar about two and half years prior to the date of incident
which took place on 15.9.1991. The appellant no. 2, Kadubai is the mother
of the appellant no. 1 and both the appellants were residing in the same
house in village Palshi. According to the case of prosecution, a sum of Rs.
5000 and some gold ornaments had been given at the time of marriage of
Bhimabai. For about six months Bhimabai was treated well but thereafter the
accused started asking her to bring Rs. 1,000-1,200 from her parents to
meet the household expenses and also for purchasing manure. Whenever
Bhimabai went to her parental home, she used to tell her parents that her
husband and mother-in-law (accused appellants) were harassing her and used
to occasionally beat her. Her father PW.1 Tukaram along with some of his
relatives went to the house of the accused and tried to persuade them not
to ill-treat Bhimabai. Thereafter, the accused treated Bhimabai properly
but after about four months they again started harassing her. A few days
before Nag Panchami festival Bhimabai came to her parental home and
complained that the accused were not giving her proper food, clothings and
even footwear. She also told her parents that her husband had asked her to
bring an amount of Rs.1,000-1,200 for the purpose of household expenses and
manure. The case of the prosecution futher is that in the evening of
15.9.1991 a person came from village Palshi on a motorcycle and informed
PW.1 Tukaram that Bhimabai was unwell. PW.1 then immediately went to the
house of the accused along with some of his relatives. There he saw that
Bhimabai was lying dead and froth was coming out of her mouth which
indicated that she had consumed some poisonous substance. The Police Patil
of the village PW.3 Sandu Mohanrao Patil lodged an accidental death report
at 9.00 p.m. on 15.9.1991 at the police station. On the basis of the said
accidental death report, PW.6 Sandeepan Kamble, Police Sub-Inspector,
visited the house of the accused, held inquest on the dead body of
Bhimabai, and thereafter sent the same for post-mortem examination. PW.1
Tukaram lodged the FIR of the incident at 7.00 p.m. on 16.9.1991 at P.S.
Chikalthana, on the basis of which Case Crime No. 144 of 1991 was
registered against the appellants under Sections 498-A, 306 and 304-B IPC.

3. After completion of investigation, charge sheet was submitted against
the appellants and in due course, the case was committed to the Court of
Sessions. The learned Sessions Judge framed charges under Sections 498-A,
304-B read with Section 34 IPC and Section 306 read with Section 34 IPC
against both the appellants. The appellants pleaded not guilty and claimed
to be tried. The prosecution in order to establish its case examined six
wintesses and filed some documentary evidence. The learned Sessions Judge
after consideration of the material on record acquitted the appellants of
the charges under Sections 498-A and 306 read with Section 34 IPC but
convicted them under Section 304-B IPC and imposed a sentence of 7 years RI
thereunder. The appeal preferred by the appellants was dismissed by the
High Court by the judgment and order dated 23.2.2005.

4. We have heard learned counsel for the appellants, learned counsel for
the State of Maharashtra and have perused the records.

5. The post-mortem examination on the body of deceased Bhimabai was
conducted by a team of two doctors of Department of Forensic Medicine and
Toxicology, Medical College, Aurangabad, namely, Dr. S.M. Jawale and Dr.
H.V. Godbole on 16.9.1991. The doctors did not find any sign of external or
internal injury on the body of the deceased and in their opinion, the cause
of death was insecticide poisoning. The viscera was preserved for chemical
analysis. The report of the post-mortem examination was admitted by the
defence.

6. The specific case of the prosecution is that Bhimabai ended her life by
consuming poison because of harassment caused to her by the appellants for
or in connection with demand of dowry. It is, therefore, necessary to
briefly examine the evidence of the prosecution witnesses. PW. 1 Tukaram,
father of the deceased, has given details of the prosecution version of the
incident in his statement in Court. He has deposed that in the marriage he
had given Rs. 20,000 as dowry. Initially, Bhimabai was treated well for
about six months, but thereafter the appellants started ill-treating her.
Whenever Bhimabai came to her parental home, she used to complain that for
some domestic reasons she was being harassed. When she had visited her
parental home on the last occasion, she had said that her husband Appasaheb
had asked her to bring Rs. 1,000-1,200 for domestic expenses and for
purchasing manure as he had no sufficient money. Bhimabai had complained to
him that she was not being given proper food, clothings and even footwear
and occasionally the appellant no. 1 used to beat her. The last time she
visited her parental home was during the festival of Nag Panchami and at
that time she looked depressed. The witness has further deposed that on the
date of incident, a man came from village Palshi on motorcycle and informed
that he should immediately go there as Bhimabai was not well. He then went
to village Palshi along with other persons of his family where he reached
after sun set. He saw that Bhimabai was lying dead and froth was coming out
of her mouth which was smelling of Thimet (insecticide). In his cross-
examination he has admitted that his statement that he had given Rs.20,000
in dowry at the time of marriage was incorrect and in fact he had given Rs.
5,000 as dowry and the total expenses incurred in the marriage was about
Rs. 20,000. He has also deposed that it was after about 1-1/2 years of
marriage that Bhimabai first complained to him about the harassment being
caused to her. There used to be some bickering in the marital life of
Bhimabai and her husband on trifling matters. He has admitted that it was
appellant no. 1 who had sent a person on motorcycle who had given
information regarding Bhimabai being unwell and that both the appellants
were present at the time of her funeral. PW.2 Babaji is real brother of
father-in-law of PW.1 Tukaram. He has deposed that on an earlier occasion
he had gone along with PW.1 and some others to the house of appellant no.1
to persuade him not to harass Bhimabai and to treat her well. In his cross-
examination he has admitted that when he had gone to village Palshi to talk
with the appellants regarding the ill-treatment being meted out to
Bhimabai, there was no talk regarding monetary giving and taking. He also
admitted that he had not gone to attend that funeral of Bhimabai. PW.5
Sumanbai is the mother of the deceased Bhimabai. She has stated in her
examination-in-chief that Bhimabai was being ill-treated by the appellants
and the reason for ill-treatment was that they were demanding money to be
brought from her parental home. The last time Bhimabai visited her parental
home was on the occasion of the festival of Nag Panchami and she had
complained that she was being ill-treated and was sometimes given beating
for bringing money from her parents. She has specifically stated that for a
period of six months after the marriage, Bhimabai was treated well and
thereafter she had started complaining about the harassment being caused to
her. In her cross-examination, PW.5 Sumanbai has stated that after news
about the condition of Bhimabai was given by a man from village Palshi, she
along with her husband and some other relations went there and noticed that
Bhimabai was lying dead in the house and froth was coming out of her mouth.
She has further stated that she did not make any enquiry as to how Bhimabai
had died. In her statement under Section 161 Cr.P.C. which was recorded
very next day of the incident i.e. on 16.9.1991 she did not state that
cause of ill-treatment was “a demand for money and a consequent beating”.
When confronted with her aforesaid statement under Section 161 Cr.P.C., she
replied that she did not know why there was no mention in the said
statement that the cause for ill-treatment was “a demand for money and a
consequent beating”. She further stated that it will be correct to say that
her daughter was receiving ill-treatment as a result of “domestice cause”.
The learned trial Judge then sought clarification from the witnessses by
putting the following question. :-

“Que:- What do you mean by “domestic cause”?

Ans.:- What I meant was that there was demand for money for
defraying expenses of manure etc. and that was the cause.”

In the very next paragraph she stated as under :-

“It is not true to suggest that in my statement before the police I
never said that ill-treatment was as a result of demand for money
from us and its fulfillment. I cannot assign any reason why police
did not write about it in my statement.”

7. PW. 3 Sandu, Police Patil of village Palshi has deposed that at about
4.20 p.m. on 15.9.1991, Narayan who is uncle of appellant no.1, Appasaheb,
informed him that the wife of Appasaheb had expired. He then went to the
house of the appellant and saw Bhimabai lying with froth coming out of her
mouth. Thereafter, he gave a report about the incident in writing at the
police station. In his cross-examination, he admitted that he did not make
detailed enquiries as to what was the cause of death and where the incident
had taken place. He has further deposed that Bhimabai had come to his house
about six months earlier and had said all was not well between her and her
husband, but she had not given any specific details.

8. The main witnesses regarding the alleged demand of money and also
harassment and beating to Bhimabai are her father and mother, viz., PW.1
Tukaram and PW.5 Sumanbai. In his examination-in-chief PW.1 has said that
whenever his daughter came to her parental home, she used to complain that
she was being subjected to harassment by the appellants on account of some
“domestic reasons” and further that her husband (appellant no.1) had told
her that while coming back from her parental home she should bring Rs.
1,000-1,200 for expenses and for manure as he had no sufficient money. PW.5
Sumanbai has deposed that Bhimabai was receiving ill-treatment as a result
of “domestic cause” and to a specific question put by the Court as to what
she meant by “domestic cause” she gave a reply that there was a demand for
money for defraying expenses of manure etc. It is important to note that in
her statement under Section 161 Cr.P.C. which was recorded on the very next
day of the death of Bhimabai, this witness did not state that the cause for
ill-treatment was “a demand for money and a consequent beating”. The
evidence on record does not indicate that the police had any reason to
favour the accused and deliberately omitted to mention about the alleged
demand of money while recording the statement of PW.5 Sumanbai under
Section 161 Cr. P.C. The evidence shows that the accused come from very
humble background and they could not have exerted any kind of influence,
financial or otherwise, upon the police so as to manage a statement
favourable to them when in the course of investigation the statements of
witnesses were being recorded under Section 161 Cr.P.C. Accepting the
statements of father and mother on their face value that utmost which can
be held is that the appellant no.1 had asked his wife Bhimabai to bring
money for meeting domestic expenses and for purchasing manure.

9. Two essential ingredient of Section 304-B IPC, apart from others, are
(i) death of women is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances, and (ii) women is subjected to
cruelty or harassment by her husband or any relative of her husband for, or
in connection with, any demand for “dowry”. The explanation appended to
sub-section (1) of Section 304-B IPC says that “dowry” shall have the same
meaning as in Section 2 of Dowry Prohibition Act, 1961.

Section 2 of Dowry Prohibition Act reads as under :-

“2. Definition of “dowry” – In this Act “dowry” means any property or
valuable security given or agreed to be given either directly or
indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person,
to either party to the marriage or to any other person, at or before or any
time after the marriage in connection with the marriage of the said
parties, but does not include dowry or mahr in the case of persons to whom
the Muslim Personal Law (shariat) applies.

In view of the aforesaid definition of the word “dowry” any property or
valuable security should be given or agreed to be given either directly or
indirectly at or before or any time after the marriage and in connection
with the marriage of the said parties. Therefore, the giving or taking of
property or valuable security must have some connection with the marriage
of the parties and a correlation between the giving or taking of property
or valuable security with the marriage of the parties is essential. Being a
penal provision it has to be strictly construed. Dowry is a fairly well
known social custom or practice in India. It is well settled principle of
interpretation of Statute that if the Act is passed with reference to a
particular trade, business or transaction and words are used which
everybody coversant with that trade, business or transaction knows or
understands to have a particular meaning in it, then the words are to be
construed as having that particular meaning. (See Union of India v. Garware
Nylons Ltd., AIR (1996) SC 3509 and Chemicals and Fibres of India v. Union
of India, AIR (1997) SC 558). A demand for money on account of some
financial stringency or for meeting some urgent domestic expenses of for
purchasing manure cannot be termed as a demand for dowry as the said word
is normally understood. The evidence adduced by the prosecution does not,
therefore, show that any demand for “dowry” as defined in Section 2 of the
Dowry Prohibition Act was made by the appellants as what was allegedly
asked for was some money for meeting domestic expenses and for purchasing
manure. Since an essential ingredient of Section 304-B IPC viz. demand for
dowry is not established, the conviction of the appellants cannot be
sustained.

10. Learned counsel for the appellants has also submitted that there is
absolutely no evidence either direct or circumstantial to show that
Bhimabai committed suicide. He has submitted that the insecticide Thimet is
extensively used by the farmers for preservation of crop and is kept stored
in their houses and it could be a case where Thimet accidentially got mixed
with some food item and was consumed by Bhaimabai. It has thus been
submitted that no offence under Section 306 IPC is made out against the
appellants. We do not consider it necesary to examine this question. As
already stated, the appellants were also charged under Sections 498-A and
306 read with Section 34 IPC but were acquitted of the said charges by the
learned Sessions Judge, which order has attained finality for the reason
that the State did not prefer appeal agains the same. The appeal before the
High Court and also in this Court has been preferred by the appellants
challenging their coviction under section 304-B read with section 34 IPC.
It has been held in State of Andhra Pradesh v. Thadi Narayan, AIR (1962) SC
240 that Section 423(1)(b)(i) of Code of Criminal Procedure, 1898 (which
corresponds to Section 386(b)(i) of Code of Criminal Procedure, 1973) is
clearly confined to cases of appeals preferred against orders of conviction
and sentence, the powers conferred by this clause cannot be exercised for
the purpose of reversing an order of acquittal passed in favour of a party
in respect of an offence charged, in dealing with an appeal preferred by
him against the order of conviction in respect of another offence charged
and found proved. Therefore, we have refrained from expressing any opinion
as to whether the appellants could be held guilty of having committed the
offence under Section 498-A or 306 IPC on the basis of evidence available
on record as their acquittal under the aforesaid charges has attained
finality and cannot be reversed in the appeal filed by the appellants
challenging their conviction under Section 304-B IPC.

11. In view of the discussion made above, the appeal is allowed. The
judgment and order dated 23.2.2005 of the High Court and the judgment and
order dated 4.1.1993 of the learned Sessions Judge convicting the
appellants under Section 304-B IPC are set aside and the appellants are
acquitted of the said charge. The appellant no.1 is in custody. He shall be
released forthwith unless wanted in some other case. The appellant no. 2 is
on bail. The sureties and bail bonds furnished by her are discharged.

Judgement