A bride's poisoning death within eight days of marriage led to charges of murder, dowry death and cruelty. The court held that the prosecution had not proved any charge and dismissed the State's appeal against acquittal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Cr.Appeal 291/95
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.291/1995
The State of Maharashtra.
...Appellant..
(Org.complainant)
Versus
1] Appasaheb Balajee Parkhe, age 22 yrs.,2] Radhakrushna Balajee Parkhe, age 27 yrs.,3] Hausabai Balajee Parkhe, age 65 yrs.,4] Balajee Bhaurao Parkhe, age 70 yrs.,All r/o Pimpri-Nirmal,
Tq.Shrirampur Dist.Ahmednagar.
...Respondents...
(Org.accused)
.....
Shri S.G. Nandedkar, APP for appellant - State.
Shri N.N. Shinde, Advocate for respondent nos.1 to 4.
.....
CORAM: S.S. SHINDE &
A.M. BADAR, JJ.
JUDGMENT RESERVED ON: 08.01.2015
JUDGMENT PRONOUNCED ON: 15.01.2015
JUDGMENT (Per A.M. Badar, J.) :
Cr.Appeal 291/95
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1]By this appeal under Section 378 (1)(iii) of the
Code of Criminal Procedure, 1973, the appellant – State
is challenging the judgment and order dated 29.4.1995
passed by the learned Additional Sessions Judge,
Ahmednagar, in Sessions Case No.254/1994 thereby
acquitting respondents / accused of the offences
punishable u/ss.302, 498-A and 304-B r/w 34 of the Indian
Penal Code.
2]Facts leading to the prosecution of respondents
– accused can be summarized thus:
[a]Informant PW1 Bhagwat Waman Gaikwad is
resident of village Ashvi in Taluka Sangamner of
District Ahmednagar. His daughter Shakuntala
married respondent / accused no.1 Appasaheb
Balajee Parkhe on 20.5.1994 at village Ashvi.
Respondent / accused no.2 – Radhakrushna is
brother, respondent / accused no.3 Hausabai is
mother whereas respondent / accused no.4 –
Balajee is father of Appasaheb Parkhe. Marriage
of Shakuntala with respondent / accused no.1
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was an arranged marriage settled with the help
of Indubai Gaikwad and her husband Prabhakar
Gaikwad, who is cousin of informant Bhagwat
Gaikwad. It is the prosecution case that prior
to marriage at the time of Haldi ceremony,
Balajee, Nivrutti and Ratan Parkhe demanded
dowry of Rs.10,000/-, but marriage was
solemnized on assurance of informant Bhagwat
Gaikwad that the dowry would be paid after the
marriage. Then on 20.5.1994 itself, Shakuntala
accompanied by her aunt Jamuna Mahadev
Bhingardive (sister of informant Bhagwat) and
two other girls, went to her matrimonial house
at village Nirmal Pimpri. All accused were
residing jointly at that place. Three days
after marriage, informant Bhagwat, his nephew
Bhaskar, son Ashok and brother Prabhakar went to
the place of accused persons at village Nirmal
Pimpri for fetching Shakuntala as per custom.
However, they came to know that prior to their
reaching Nirmal Pimpri, Jamuna Bhingardive had
taken Shakuntala to her parental place at
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village Ashwi. Hence, informant Bhagwat and his
relatives took a night halt at the house of
accused persons at village Nirmal Pimpri. On
the next day morning, they returned to their
house at village Ashvi. During their stay at
village Nirmal Pimpri, accused persons and their
relatives demanded amount of Rs.10,000/- which
was settled as dowry. Informant Bhagwat assured
that the amount would be paid after arranging
the same. On return to village Ashvi,
Shakuntala told informant father Bhagwat told
that if amount of dowry settled at Rs.10,000/-
is not paid, accused persons would kill her. On
24.5.1994 at about 4-00 p.m., Nivrutti Parkhe-
brother in-law of Shakuntala came to fetch her.
At that time, he asked whether the amount of
dowry is arranged or not. Informant Bhagwat
again assured that after making arrangements for
the same, money would be paid. Then Shakuntala
accompanied her brother-in-law Nivrutti went to
her matrimonial house at Nirmal Pimpri.
[b]According to the prosecution case,
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incident in question happened in the night
intervening between 28.5.1994 and 29.5.1994 at
the house of accused persons at Nirmal Pimpri.
In the morning of 29.5.1994, Bhagwat Parakhe and
Tarachand Padghalmal came to the place of
informant Bhagwat and told him that Shakuntala
is ill. Hence, Shantabai – mother of Shakuntala
accompanied by Indubai rushed to the matrimonial
house of Shakuntala. Informant Bhagwat and his
relatives followed them. On reaching house of
accused persons, parents of Shakuntala found her
dead. They were told that Shakuntala died at
about 10 p.m. on 28.5.1994. Informant Bhagwat
suspected that as amount of dowry settled at
Rs.10,000/- was not paid, accused persons
committed her murder by administering poison to
her.
[c]Death of Shakuntala Appasaheb Parkhe at
her matrimonial house at village Nirmal Pimpri
had resulted in registration of Accidental Death
Case No.16/1994 u/s 174 of the Code of Criminal
Procedure, 1973 on the basis of report (Exh.25)
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lodged by Changdeo Sadashiv Nirmal. During the course of inquiry of that accidental death case, PW4 Digambar Dhatonde, Head Constable, took inquest notes (Exh.12) on 29.5.1994 itself and dead body of Shakuntala was dispatched to Pravara Medical Hospital, Loni for conducting post mortem examination. Then PW4 Digambar Dhatonde, Police Head Constable, recorded spot panchanama (Exh.13) on 29.5.1994. He seized clothes of deceased Shakuntala vide seizure panchanama (Exh.14) on 29.5.1994 itself. [d] On 29.5.1994 at about 10-30 p.m., informant Bhagwat Gaikwad lodged report (Exh.27) to Police Station, Loni, alleging that his daughter Shakuntala is done to death within few days of her marriage by accused persons. On the basis of this report, offence u/s 302 r/w 34 of the Indian Penal Code came to be registered at Police Station, Loni, and wheels of
investigation were set in motion. During the
course of investigation, PW6 Liladhar Narayan
Nemade, PSI / Investigating Officer recorded
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statements of witnesses, obtained report of post mortem examination. He sent seized clothes and viscera of deceased Shakuntala Appasaheb Parkhe
for chemical analysis and obtained the report
thereof. Accused persons were arrested. On
completion of investigation, charge-sheet came
to be filed in the Court of learned Judicial
Magistrate, First Class, Shrirampur.
3]As the offence punishable u/s 302 of the Indian
Penal Code is exclusively triable by the Court of
Sessions, the learned Judicial Magistrate, First Class,
Shrirampur, committed the case to Sessions Court,
Ahmednagar.
4]Initially charge for the offence punishable
u/ss. 302, 498-A r/w 34 of the Indian Penal Code came to
be framed against accused persons. Subsequently,
additional charge for the offence punishable u/s 304-B
r/w 34 of the Indian Penal Code came to be framed against
accused / respondents. Accused pleaded not guilty and
claimed trial.
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5] In order to bring home the guilt to accused persons, the prosecution has examined in all six witnesses. Informant father Bhagwat Waman Gaikwad is examined as PW1 at Exhibit 15. Report lodged by him on 29.5.1994 is at Exhibit 27. Shantabai Bhagwat Gaikwad – mother of the deceased is examined as PW2 at Exhibit 28. Dr.Shrikant Subhash Asawa, Medical Officer, Pravara Medical College and Hospital, Loni, is examined as PW3 at Exhibit 31. Exhibit 32 is the report of post mortem examination of dead body of Shakuntala Appasaheb Parkhe. Digambar Damodar Dhatonde, Head Constable, who enquired the accidental death case is examined as PW4 at Exhibit 33. Balasaheb Namdeo Gaikwad – an alleged independent witness came to be examined as PW5 at Exhibit 34. He claims to be the Leader of Republican Party of India. Investigating Officer - Liladhar Narayan Nemade, Police Sub Inspector came to be examined as PW6 at Exhibit 35. Exhibits 36 and 37 are reports of chemical analysis of clothes and viscera of the deceased.
6]The learned trial Court on conclusion of
evidence of the prosecution recorded statement of accused
persons u/s 313 of the Code of Criminal Procedure and
accorded opportunity of entering upon the defence to
them. However, accused persons did not enter upon
defence. Defence of accused / respondents was that of
total denial. According to them, they are falsely
implicated in the crime in question due to political
rivalry. As their relative contested election against
Amrutlal Gandhi, Sarpanch, Balasaheb Gaikwad and said
Amrutlal instigated the informant to lodge the report.
7]After hearing the learned APP as well as the
learned defence counsel, by the impugned judgment And
order dated 29.4.1995, the learned trial Court came to
the conclusion that there is no sufficient evidence to
connect accused persons to the crime in question and,
therefore, all of them were acquitted of the offences
punishable u/ss.302, 498-A and 304-B r/w 34 of the Indian
Penal Code. This judgment and order of acquittal is
impugned in the present appeal.
7]Heard the learned APP appearing for the
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appellant – State. He vehemently argued that the
prosecution has proved demand of dowry by accused persons
for and in connection with marriage of respondent no.1 /
accused Appasaheb with deceased Shakuntala. Within eight
days of marriage with accused no.1 - Appasaheb,
Shakuntala died at her matrimonial house and, therefore,
by circumstantial evidence, the prosecution has proved an
offence punishable u/s 302 of the Indian Penal Code. The
learned APP further argued that evidence of PW1 Bhagwat
Gaikwad and his wife PW2 Shantabai is sufficient to come
to the conclusion that accused persons have subjected
deceased Shakuntala to cruelty soon before her death,
which was not in normal circumstances and as such in the
alternative the prosecution is successful in proving the
offence punishable u/s 304-B r/w 34 of the Indian Penal
Code. The learned APP further argued that evidence of
PW1 Bhagwat, PW2 Shantabai and PW5 Balasaheb Gaikwad is
sufficient to come to the conclusion that the deceased
was subjected to cruelty by accused persons.
8]Per contra, according to the learned defence
counsel, this is a case where there is no evidence to
Cr.Appeal 291/95
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connect accused persons with the crime in question. The
marriage in question was an arranged marriage settled
through Indubai who is near relative of the informant.
The learned defence counsel further argued that the
prosecution has not examined material witnesses such as
Indubai, Jamunabai and Padma. Evidence of the
prosecution is inconsistent and, therefore, the learned
trial Court is justified in acquitting the accused
persons of the charges leveled against them.
9]We have carefully gone through the record. As
we have noted that the learned trial Court has not formed
the relevant points which arise for determination in the
present case, we propose to frame and answer those.
Following points arise for our consideration and
determination and we record our findings thereon for the
reasons to follow :-
POINTS
FINDINGS
1] Whether the prosecution proves
that in the night intervening
between 28.5.1994 and 29.5.1994,
Shakuntala Appasaheb Parkhe died
homicidal death ?
No.
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2]Whether death of Shakuntala
Appasaheb Parkhe occurred otherwise
than under normal circumstances
within seven years of her marriage
to accused no.1 – Appasaheb Balajee
Parkhe ?
Yes.
3]Whether it is proved by the
prosecution that accused persons
or any of them in furtherance to
their common intention committed
murder of Shakuntala w/o Appasaheb
Parkhe in the night intervening
between 28.5.1994 and 29.5.1994
at their house at village Nirmal
Pimpri by administering poisonous
substance to her ?
No.
4]Whether it is proved by the
prosecution that accused persons
or any of them in furtherance of
their common intention harassed
the deceased Shakuntala Appasaheb
Parkhe with a view to coerce her
or any person related to her
to meet their unlawful demand of
dowry of Rs.10,000/- ?
No.
10]It is not in dispute that respondent / accused
no.1 Appasaheb married Shakuntala on 20.5.1994 and said
Shakuntala Appasaheb Parkhe died at the residential house
of accused persons at village Nirmal Pimpri in the night
interveningbetween28.5.1994and29.5.1994.
Undisputedly, accused no.2 – Radhakrushna is brother,
accused no.3 Hausabai is mother whereas accused no.4 –
Cr.Appeal 291/95
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Balajee is father of accused no.1 – Appasaheb Parkhe.
Inquest panchanama (Exh.12) dated 29.5.1994, spot
panchanama at Exhibit 13, seizure panchanama at Exhibit
14 and report of accidental death case at Exhibit 25
recorded on 29.5.1994 are the documents which are not
disputed by the defence. Perusal of inquest panchanama
(Exh.12) shows that froth was oozing from the nose and
pungent smell was coming from the dead body. Evidence of
autopsy surgeon PW3 Dr.Shrikant Asawa shows that after
conducting post mortem examination of dead body of Shakuntala Parkhe, he came to the conclusion that her death was due to insecticide poison. Post mortem report at Exhibit 32 is corroborating version of PW3 Dr.Shrikant
Asawa that Shakuntala died due to insecticide poisoning
and there was smell of kerosene in the stomach contents
of the dead body. As seen from the evidence of PW 6
Liladhar Nemade, Investigating Officer, viscera as well
as clothes worn by deceased Shakuntala at the time of her death seized vide seizure panchanama (Exh.14) were sent for chemical analysis. Chemical Analyser's report at Exhibits 36 and 37 shows that organochloro insecticide, Endosalfan (Thiodan) was detected in the viscera of the
Cr.Appeal 291/95
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dead body and the level of organochloro insecticide
detected in viscera was of the same order as found in
fatal poisoning cases involving Endosalfan. Similarly,
Endosalfan (Thiodan) came to be detected on clothes
seized from the dead body of Shakuntala Parkhe. This
overwhelming evidence is sufficient to come to the
conclusion that death of Shakuntala Appasaheb Parkhe
occurring in the night intervening between 28.5.1994 and
29.5.1994 was not natural and the same is occurring
certainly otherwise than in normal circumstances. The
death of Shakuntala is within eight days of her marriage.
Now let us examine whether the prosecution has proved
that the deceased Shakuntala died homicidal death caused
by accused persons or any of them by administering poison
to her.
11]So far as the charge for the offence punishable
u/s 302 r/w 34 of the Indian Penal Code is concerned,
case of the prosecution is totally based on
circumstantial evidence. The law relating to
appreciation of circumstantial evidence is crystallized
by catena of decisions by the Hon'ble Supreme Court.In
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the matter of Prithviraj V/s. State of Rajasthan reported in 2004 Cri. L.J., 2190 , the Rajasthan High Court has held thus in paragraph Nos. 21 to 27 :-
21.“Circumstantial evidence may be defined
as any fact (sometimes called an 'evidentiary
fact'. 'factum probans' or 'fact relevant to
the issue') from the existence of which the
judge or jury may infer the existence of a
fact in issue (sometimes called a 'principal
fact' or 'factum probandum'.)
22.Circumstantial evidence is that which
relates to a service of other facts than the
fact in issue; but which by experience have
been found so associated with the fact in
issue in relation of cause and effect that it
leads to a satisfactory conclusion. It is one
of the established principles of law that a
witness may lie but not the circumstances.
However, the Court must adopt a cautious
approach while basing its conviction purely on
circumstantial evidence. As evidence there is
nodifferencebetweendirectand
circumstantial evidence. The only difference
is in that as proof, the former directly
establishes the commission of the offence
whereas the latter does so by placing
circumstances which lead to irresistible
inference of guilt.
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23.In reference to cases where there is
no direct evidence and the decision has to
rest on circumstantial evidence, the Hon'ble
Supreme Court in a line of decisions has
consistently held that such evidence must
satisfy the following tests :-
1.The circumstances from which an
inference of guilt is sought to be drawn
must be cogently and firmly established;
2.Those circumstances should be of a
definite tendency unerringly pointing
towards the guilt of the accused ;
3. The circumstances, taken
cumulatively, should form a chain so
complete that there is no escape from the
conclusion that within all human
probability the crime was committed by
the accused and none else; and
4.The circumstantial evidence in order
to sustain conviction must be complete
and incapable of explanation on any other
hypothesis than that of the guilt of the
accused and such evidence should not only
be consistent with the guilt of the
accused but should be inconsistent with
his innocence.
In this connection the decisions of theCr.Appeal 291/95
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Hon'ble Supreme Court in Ashok Kumar V. State
of M.P (AIR 1989 SC 1890): (1989 Cri.L.J.2124), Padala Veera V. State of A.P (AIR 1990 SC.79), (1990 Cri. L.J 605), Josheph V. State of Kerala (2000) 5 SCC 197, : (2000 Cri LJ 2467), and Kuldeep V. State of Rajasthan ,( 2000) 5 SCC 7, : (2001 Cri LJ 479) may be seen.
25.It is also well settled that the
prosecution has to establish each circumstance
by independent evidence and the circumstances
so established should form a complete chain
without giving room to any other hypothesis
and should be consistent with his guilt and
are inconsistent with his innocence.
26.It may be stated here that while
appreciating the circumstantial evidence in
criminal cases, strict scrutiny of each of the
facts placed by circumstantial evidence and
their cumulative effect has to be taken into
consideration and if they are of such nature
as to be incompatible with the innocence of
the accused then only conviction can follow.”
12]Keeping in mind these principles, if the
evidence adduced by the prosecution in the case in hand
is considered, then at the outset, it needs to be put on
record that the prosecution has utterly failed to
Cr.Appeal 291/95
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establish chain of circumstances so complete that there
is no room to any other hypothesis than guilt of
respondents – accused for the offence punishable u/s 302
of the Indian Penal Code. In fact, the circumstantial
evidence in the instant case is totally unsatisfactory
for holding respondents / accused guilty of the serious
offence of murder. The learned APP could not point out
any circumstances to show that those were none else but
accused persons who had caused death of Shakuntala by
administering poison to her. We are alive to the
provisions of Section 106 of the Indian Evidence Act,
1872, which prescribe that when any fact is especially
within the knowledge of any person, the burden of proving
that fact is upon him. Taking aid of this provision, one
may argue that as Shakuntala was in custody of
respondents / accused persons and as she died in their
house because of poisoning, it is for respondents to
establish that how she died. However, purport of Section
106 of the Indian Evidence Act, 1872 is not to cast any
burden on accused persons to prove that no crime was
committed by proving the facts within their knowledge.
The onus to prove commission of offence by accused
Cr.Appeal 291/95
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persons is certainly on the prosecution. Section 106 of
the Indian Evidence Act, 1872, does not affect the onus
of proving the guilt of accused persons. This Section
applies where the prosecution has succeeded in proving
facts from which reasonable inference can be drawn
regarding existence of certain other facts. In such
eventuality, accused persons by virtue of their special
knowledge regarding such facts, have to offer explanation
which may drive the Court to draw a different inference.
Let us, therefore, examine whether the prosecution has
proved some facts from which the reasonable inference of
commission of murder of Shakuntala by respondents /
accused can be drawn.
13]It is in evidence of PW1 Bhagwat Gaikwad that on
24.5.1994 accompanied by her brother-in-law, Shakuntala
went to her matrimonial house at village Nirmal Pimpri.
Congruous evidence of PW1 Bhagwat and PW2 Shantabai –
parents of the deceased shows that in the morning hours
of 29.5.1994, Bhagwat Parkhe and Tarachand came to their
place to inform that Shakuntala is suffering from pain in
stomach. When these witnesses rushed to her matrimonial
Cr.Appeal 291/95
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house, they saw Shakuntala in dead condition. At this
juncture, it is worthwhile to note that the distance
between village Ashvi and village Nirmal Pimpri is just
20 Kms. In presence of PW 1 Bhagwat and PW2 Shantabai,
PW4 Digambar Dhatonde, Head Constable took inquest notes.
Exhibit 12 is the inquest memorandum. This inquest
memorandum shows presence of both parents of deceased Shakuntala while recording the same. Scrutiny of inquest memorandum at Exhibit 12 shows that there were no injuries on the dead body. Mangalsutra worn by deceased Shakuntala was intact so also 13 bangles worn by her in each hand were intact. Post mortem report at Exhibit 32 shows that deceased Shakuntala was of 18 years of age. If really poison was administered to her forcefully, then her dead body ought to have reflected some signs of violence and injuries. It is expected of an adult person to resist in case of forceful administration of poison
and in that process sustaining injuries is a normal
phenomenon. In this backdrop, non-finding of any injury
on dead body of Shakuntala is a circumstance which cast a
shadow of doubt on the prosecution case. Similarly, if
really poison was forcefully administered to deceased
Cr.Appeal 291/95
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Shakuntala, then during the course of resistance by her, there was every possibility of breaking of glass bangles worn by her, which were numbering 13 in each hand as also Mangalsutra worn by her. The fact that her Mangalsutra and all her bangles were intact also cast a shadow of doubt on the prosecution case that deceased Shakuntala
was murdered by respondents / accused persons by
administering poison to her.
14]On 29.5.1994 itself after recording inquest
memorandum, spot panchanama (Exh.13) came to be recorded
by PW4 Digambar Dhatonde Head Constable. Perusal of this
spot panchanama shows that all household articles in the
house of respondents / accused persons were intact and
kept in orderly manner. No sign of scuffle was found on
the spot where the incident of alleged forceful
administration of poison had happened. In the normal
course, while commission of such offence against an adult
lady, the spot would have shown some signs of violence
because of ensuing scuffle due to resistance offered.
However, nothing suspicious was found on the spot of the
incident.
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15]Apart from this, there is no iota of evidence to
infer any circumstance which leads to a conclusion that
deceased Shakuntala was done to death by respondents /
accused persons or by any of them by poisoning her. As
such in the instant case, respondents / accused are not
expected to offer any explanation by virtue of their
special knowledge. Therefore, we find no infirmity in
the finding of the learned trial Court in acquitting
respondents / accused of the charge for the offence
punishable u/s 302 r/w 34 of the Indian Penal Code.
16]Now let us examine whether the prosecution is
successful in bringing home the guilt of respondents /
accused for the offences punishable u/s 304-B and 498-A
r/w 34 of the Indian Penal Code. According to the
prosecution case, deceased Shakuntala was subjected to
cruelty on account of agreed dowry amounting to
Rs.10,000/- by her parents. Explanation to Section 304-
B of the Indian Penal Code provides that the term “dowry”
used therein shall have the same meaning as in Section 2
of the Dowry Prohibition Act, 1961. Hence, it is
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apposite to reproduce Section 2 of the said Act of 1961,
which reads thus:
“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 parents 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] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.”
17]Perusal of this Section goes to show that the
amount or thing demanded must have a nexus with marriage.
The demand of dowry must bear connection with the
marriage. Section 304-B of the Indian Penal Code
postulates, in order to attract penal provisions thereof
the deceased must be subjected to cruelty or harassment
by her husband or relative of her husband. As such,
definition of the term “cruelty” also assumes importance.
Explanation to Section 498-A of the Indian Penal Code,
1860, defines “cruelty”. It would be proper to reproduce
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Section 498-A of the Indian Penal Code as respondents /
accused persons are also charged for the offence
punishable under that Section. It reads thus:
“498-A. Husband or relative of husband of a woman
subjecting her to cruelty — Whoever, being the
husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished
with imprisonment for a term which may extend to
three years and shall also be liable to fine.
Explanation . — For the purpose of this section, “cruelty” means—
(a)any willful conduct which is of such a
nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to
life, limb or health (whether mental or
physical) of the woman; or
(b)harassment of the woman where such
harassment is with a view to coercing her or any
person related to her to meet any unlawful
demand for any property or valuable security or
is on account of failure by her or any person
related to her to meet such demand.”
18]We have already come to the conclusion that
death of Shakuntala Appasaheb Parkhe is within seven
years of her marriage and the same occurred in the night
Cr.Appeal 291/95
intervening between 28.5.1994 and 29.5.1994 otherwise than under normal circumstances. Therefore, now let us examine whether the prosecution is successful in proving the offence u/s 304-B r/w 34 of the Indian Penal Code against accused persons or any of them. At this juncture, it needs to be noted that the expression “soon before her death” used in the substantive Sections 304-B of the Indian Penal Code and Section 113-B of the Indian Evidence Act came to be considered by the Hon'ble Apex Court in Hiralal V/s State, Government of NCT of Delhi reported at (2003) 8 SCC 80 . Paragraph 8 of the said ruling reads thus:
“8.Section 304-B IPC which deal with dowry death, reads
as follows :
304-B. Dowry death —
(1)Where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than
under normal circumstances within seven years of
her marriage and it is shown that soon before her
death she was subjected to cruelty or harassment by
her husband or any relative of her husband for, or
in connection with, any demand for dowry, such
death shall be called “dowry death”, and such
husband or relative shall be deemed to have caused
her death.
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Explanation.— For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2)Whoever commits dowry death shall be punished
with imprisonment for a term which shall not be
less than seven years but which may extend to
imprisonment for life.”
The provision has application when death of a woman is
caused by any burns or bodily injury or occurs otherwise
than under normal circumstances within seven years of
her marriage and it is shown that soon before her death
she was subjected to cruelty or harassment by her
husband or any relative of her husband for, or in
connection with any demand for dowry. In order to
attract application of Section 304-B IPC, the essential
ingredients are as follows :
(i)The death of a woman should be caused by
burns or bodily injury or otherwise than under a
normal circumstance.
(ii)Such a death should have occurred within
seven years of her marriage.
(iii)She must have been subjected to cruelty or
harassment by her husband or any relative of her
husband.
(iv) such cruelty or harassment should be for
or in connection with demand of dowry.
(v)Such cruelty or harassment is shown to
have been meted out to the woman soon before her
death.
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Section 113-B of the Evidence Act is also relevant for
the case at hand. Both Section 304-B IPC and Section
113-B of the Evidence Act were inserted as noted earlier
by the Dowry Prohibition (Amendment) Act 43 of 1986 with
a view to combat the increasing menace of dowry deaths.
Section 113-B reads as follows:
“113-B.Presumption as to dowry death—
When the question is whether a person has committed
the dowry death of a woman and it is shown that soon
before her death such woman had been subjected by
such person to cruelty or harassment for, or in
connection with, any demand for dowry, the Court
shall presume that such person had caused the dowry
death.
Explanation – For the purpses of this section,
“Dowry death” shall have the same meaning as in
Section 304-B of the Indian Penal Code.
The necessity for insertion of the two provisions has
been amply analysed by the Law Commission of India in its
21st Report dated 10-08-1988 on 'Dowry Deaths and Law
Reform'. Keeping in view the impediment in the pre-
existing law in securing evidence to prove dowry-related
deaths, the legislature thought it wise to insert a
provision relating to presumption of dowry death on proof
of certain essentials. It is in this background that
presumptive Section 113-B in the Evidence Act, one of the
essential ingredients, amongst others, in both the
provisions is that the woman concerned must have been
'soon before her death' subjected to cruelty or
harassment 'for or in connection with the demand of
dowry'. Presumption under Section 113-B is a presumption
Cr.Appeal 291/95
of law. On proof of the essentials mentioned therein, it
becomes obligatory on the court to raise a presumption
that the accused caused the dowry death. The presumption
shall be raised only on proof of the following
essentials:
(1)The question before the court must be whether
the accused has committed the dowry death of the
woman. (This means that the presumption can be
raised only if the accused is being tried for the
offence under section 304-B IPC)
(2)The woman was subjected to cruelty or
harassment by her husband or his relatives.
(3)Such cruelty or harassment was for, or in
connection with any demand for dowry.
(4)Such cruelty or harassment was soon before her
death.”
19]Let us now scrutinize evidence of the
prosecution in order to ascertain whether the material on
record shows that soon before her death, deceased
Shakuntala was subjected to cruelty or harassment by
accused persons for and in connection with demand of
dowry. If such fact is established, then only a
presumption can be drawn that respondents / accused have
committed her dowry death. It is then upon respondents /
accused to dispel the theory of presumption as envisaged
by Section 113-B of the Indian Evidence Act.
Cr.Appeal 291/95
- 29 -
20]At the outset, we will consider whether the
prosecution has proved that there was demand of dowry by respondents / accused persons for or in connection with marriage of respondent / accused no.1 Appasaheb with deceased Shakuntala. For this purpose, naturally evidence of her father PW1 Bhagwat and mother PW2 Shantabai assumes importance. It is in evidence of PW1 Bhagwat that in the morning of the day of marriage i.e. on 20.5.1994, there was function of Haldi and in that function, persons named Nivrutti, Bhagwat and Raghunath Parkhe demanded an amount of Rs.10,000/-. He further stated that he requested that the marriage be performed. Then on this aspect, PW1 Bhagwat stated that when he accompanied by Bhaskar and Ashok went to the house of respondents / accused on third day of marriage for taking Shakuntala to her parental house, respondents / accused said as to why amount of Rs.10,000/- is not paid. Thereafter, as per version of this witness, when on 24.5.1994, brother-in-law of deceased Shakuntala came to his house for taking Shakuntala back to her matrimonial house, he asked as to why Rs.10,000/- is not paid.
Thereafter, according to PW1 Bhagwat, when deceased
Shakuntala had been to his house on third day of her
marriage, she told him to make arrangement for money and
further informed him that else there is danger to her
life. In a similar fashion, PW2 Shantabai has stated
that at the time of Haldi function, Nivrutti Parkhe
demanded an amount of Rs.10,000/- towards dowry. It is
in her evidence that when her daughter Shakuntala came to
her house after her marriage, she asked as to why an
amount of Rs.10,000/- is not paid and further stated that
if the same is not paid, then there will be danger to her
life. PW2 Shantabai has further stated in her evidence
that when brother-in-law of deceased Shakuntala came to
her house for fetching Shakuntala, she asked her about
Rs.10,000/-. PW2 Shantabai further stated that she
informed her daughter Shakuntala that the amount will be
paid lateron. This is what the evidence on record in
respect of dowry coming from the mouth of parents of the
deceased.
21]Now let us examine whether the evidence so
adduced by parents of deceased Shakuntala so far as
Cr.Appeal 291/95
- 31 -
demand of dowry in connection with marriage of Shakuntala
with respondent / accused no.1 Appasaheb is reliable,
trustworthy and, therefore, deserving acceptance. Cross-
examination of PW1 Bhagwat reveals that upon her return
to her parental house after marriage, deceased Shakuntala
did not tell anything to him. Cross-examination of PW1
Bhagwat reveals financial position of both parties to the
marriage. Marriage of deceased Shakuntala with
respondent / accused no.1 was an arranged marriage and
the same was solemnized after parents and relatives of
the deceased ascertained the financial condition of
accused persons. Informant PW1 Bhagwat – father of
deceased Shakuntala is a labourer by occupation. His
cross-examination shows that accused persons are having 3
Acres irrigated and 9 Acres Jirayat land. Elder brothers
of respondent / accused no.1 Appasaheb namely Nivrutti
and Bhagwat are serving in Maharashtra State Electricity
Board whereas his third brother Raghunath is serving as a
teacher. As against this, PW1 Bhagwat has admitted in
cross-examination that three walls of his house are in
dilapidated condition and those are covered by gunny
bags. His cross-examination further shows that accused
- 32 -
persons gave Mangalsutra , Jodwe , ring and 5/6 valuable sarees to Shakuntala at the time of marriage. It is seen from his evidence that when he got message that his daughter Shakuntala is ill, he was not having fare of S.T. Bus for a journey of 20 Kms. to the house of respondents / accused persons. This financial and social status of both families is very relevant. More over, this marriage with Shakuntala was a second marriage of respondent / accused no.1 Appasaheb. Much substance is, therefore, found in the defence of respondents that as the marriage of respondent no.1 – Appasaheb was a second marriage, there was no demand of dowry. It is extremely improbable that respondents / accused in the teeth of the pitiful economic condition of informant PW1 Bhagwat and on the face of the fact that they were extending all hospitalities to the family of the deceased, would have demanded dowry from them.
22]So far as evidence of PW2 Shantabai – mother of
the deceased relating to demand of dowry is concerned,
the same is also not found to be trustworthy. Her cross-
examination reveals that when there was demand of
Cr.Appeal 291/95
- 33 -
Rs.10,000/-, she was busy in Kumkum ceremony. This
implies that the alleged demand was not made in her
presence and as such her evidence on this aspect is also
not free from doubt. She has stated in her evidence that
it was her daughter Shakuntala who stated her about
demand of Rs.10,000/- at the time of visit of her
brother-in-law. However, on this aspect, PW1 Bhagwat is
saying that it was brother-in-law of Shakuntala who asked
about payment of Rs.10,000/-. Thus, evidence of the
prosecution regarding demand of dowry is totally
discrepant, inconsistent and insufficient.
23]On the aspect of demand of dowry, the
prosecution has also examined PW5 Balasaheb Gaikwad, a
leader of Republican Party of India. However, his entire
evidence is coming on record by way of omission. This
witness was unable to state as to how and when marriage
of Shakuntala with respondent no.1 - Appasaheb was
performed. Though he stated that one day prior to the
marriage, PW1 Bhagwat came to him and told him that
bride-groom party is demanding money and, therefore, he
approached the bride-groom party and informed them about
Cr.Appeal 291/95
- 34 -
inability of PW1 Bhagwat to pay the amount, this part of
his evidence as proved by PW6 Liladhar Nemade,
Investigating Officer is coming on record by way of
omission. This witness has not stated these facts
initially when his statement was recorded by Police u/s
161 of the Code of Criminal Procedure, 1973. PW5
Balasaheb Gaikwad ventured to state that for this
marriage, PW1 Bhagwat has sold his 10 Gunthas of land but
again this part of his evidence is by way of omission.
In cross-examination, PW5 Balasaheb Gaikwad has candidly
admitted that he did not tell accused persons or their
relatives that PW1 Bhagwat is unable to pay the amount.
Though this witness is stating that when deceased
Shakuntala came to her matrimonial house, her parents
told him that her husband and his relatives are demanding
money, such is not the version of parents of deceased
Shakuntala. Neither PW1 Bhagwat nor PW2 Shantabai has
stated in their evidence that they disclosed anything
about demand of money by accused persons to PW5 Balasaheb
Gaikwad. As such evidence of PW5 Balasaheb Gaikwad cannot
be relied to infer demand of dowry by accused persons.
Cr.Appeal 291/95
- 35 -
24]It has come on record through evidence of PW1
Bhagwat that on 20.5.1994 after marriage, his daughter
Shakuntala went to her matrimonial house accompanied by
his sister Jamuna Mahadev Bhingardive as well as two
other girls. This is perfectly in tune with the
tradition that a bride is accompanied by her near female
relatives when she goes to her matrimonial house for the
first time. Let us see what happened thereafter.
Evidence of PW1 Bhagwat reveals that on the third day of
marriage, he accompanied by Bhaskar and Ashok went to
matrimonial house of Shakuntala for fetching her. When
he reached there, he came to know that his sister
Jamunabai Bhingardive was not ready to stay at the house
of accused persons and, therefore, she returned to
village Ashvi along with Shakuntala. Evidence of PW1
Bhagwat reveals that on that day, they reached the
matrimonial house of his daughter which was just 20 Kms.
away from his own house; at about 5-00 p.m. As by then,
his daughter Shakuntala accompanied by his sister
Jamunabai had already left for his house at Ashvi, in
normal circumstances, PW1 Bhagwat and his relative would
have returned to village Ashvi. This did not happen. On
Cr.Appeal 291/95
- 36 -
the contrary, they enjoyed hospitality offered by accused
persons at village Nirmal Pimpri. In that night of
22.5.1994, non-vegetarian food was prepared for PW1
Bhagwat and his relatives by accused persons. A sweet
dish was also prepared for them. Chitchatting with
accused persons, PW1 Bhagwat and his relatives stayed at
the matrimonial house of his daughter and spent that
night in the company of accused persons. On the next day
i.e. on 23.5.1994 as seen from evidence of PW1 Bhagwat,
they had break-fast at the house of accused persons.
Then all of them were given a towel and a cap as gift by
respondents / accused persons. After enjoying
hospitality extended by accused persons, PW1 Bhagwat and
his relatives returned to village Ashvi. Evidence of PW2
Shantabai reveals that accused persons had given clothes
by way of gift to Jamunabai Bhingardive and two girls who
accompanied Shakuntla to their home. This conduct of
accused persons is totally incompatible to the guilt.
Had they really demanded Rs.10,000/- as dowry from father
of a bride-groom, laborer by occupation, they would not
have extended such a hospitality to PW1 Bhagwat, his
sister Jamunabai and other relatives particularly when
Cr.Appeal 291/95
- 37 -
their demand was allegedly not fulfilled. In this
factual background, evidence of the prosecution that an
amount of Rs.10,000/- was demanded by accused persons as
dowry, does not appear to be reliable and trustworthy.
25]Hence, we are of the considered opinion that in
the wake of this evidence, the prosecution has failed to
prove that accused persons had demanded an amount of
Rs.10,000/- as dowry in connection with marriage of
deceased Shakuntala with respondent / accused no.1
Appasaheb.
26]However, let us consider the matter by assuming
that there was demand of dowry of Rs.10,000/- for or in
connection with marriage of respondent/accused No.1
Appasaheb with deceased Shakuntala. In order to attract
penal provisions of Section 304-B of the IPC, the
prosecution must prove that Shakuntala was subjected to
cruelty or harassment for or in connection with this
demand of dowry soon before her unnatural death. Proof of cruelty for or in connection with demand of dowry is Sine-qua-non for bringing home the guilt for the offence
- 38 -
punishable under Section 304-B of the IPC, 1860. As
such, let us scan the evidence of prosecution in order to
establishwhether,itisprovedthatthe
respondents/accused persons or any of them had subjected
deceased Shakuntala to cruelty as defined by explanation
to Section 498-A of the IPC, 1860. The term cruelty used
in explanation to Section 498-A of the IPC implies harsh
and harmful conduct of certain intensity and persistence.
It covers acts causing, both, physical and mental agony
and torture or tyranny and harm as well as unending
accusation and recrimination putting the married
woman/victim thereof, to intense miseries. The conduct
of accused persons in such offences must be of such
intensity that a married woman must feel that life is now
not worth living and she should die, being the only
option left. The provision of Section 498-A of the IPC
envisages intention to drag or force the woman to commit
suicide by un-abetted persistent and grave cruelty. In
the case in hand, in order to establish the charge for
the offence punishable under Section 304-B of the IPC,
the prosecution is required to prove harassment by
respondents to deceased Shakuntala with a view to coerce
Cr.Appeal 291/95
- 39 -
her or her relatives to meet their unlawful demand of
dowry of Rs.10,000/- and failure on the part of her
father–PW1 Bhagwat to meet such demand. Though the term,
“harassment” is not defined in Section 498-A of the IPC,
the dictionary defines it, so as to subject someone to
unbearable, continuous or repeated or persistent
unprovoked vexatious attacks, questions, demands,
cruelty, tyranny or harm or pain. Viewing from this
angle, we see that the prosecution evidence on this
aspect is totally insufficient It is seen from evidence
of PW1 Bhagwat that deceased Shakuntala left for her
matrimonial home accompanied by his sister Jamuna and two
girls after marriage on 20.5.1994. It is seen from his
evidence that up to 22.5.1994, deceased Shakuntala was in
company of her aunt Jamunabai and two girls at her
matrimonial house. Then she was taken back to her
parental house by her aunt Jamunabai. Thereafter, in the
evening hours of 24.5.1994, deceased Shakuntala was taken
back to her matrimonial house by her brother in law. It
thus becomes clear that up to 24.5.1994, deceased
Shakuntala was under care of her parents and aunt
Jamunabai Bhingardive.
Cr.Appeal 291/95
- 40 -
27]What happened in her matrimonial life from
25.5.1994 till her death occurring in the night of
28.5.1994 is not brought on record by the prosecution.
There is absolutely no iota of evidence to that effect on
record. As discussed in the foregoing paras, PW1
Bhagwat, in his cross-examination, has candidly admitted
that on her visit to her parental house deceased
Shakuntala did not tell anything to him. As such, one can
presume that as there was no harassment to deceased
Shakuntala, she did not complained about the same to her
father PW1 Bhagwat and rightly so, because till that
time, she was accompanied by her aunt Jamunabai and two
girls from her parental side.
28]PW2 Shantabai is only stating that after
marriage, her daughter Shakuntala asked her as to why
Rs.10,000/- is not paid. She has not claimed that her
daughter Shakuntala further informed her that because of
alleged non-payment of Rs.10,000/-, she is suffering
harassment at the hands of accused persons or any of
them. At this juncture, recitals in Inquest Memorandum
that no injuries whatsoever were found on the dead body
Cr.Appeal 291/95
- 41 -
of Shakuntala becomes very relevant. Respondent/accused
persons as well as deceased Shakuntala were hailing from
rural area and considering their social background, the
fact that no injuries were found on the dead body of
Shakuntala assume great importance for inferring that she
may not have been subjected to cruelty by
respondents/accused person with whom, she stayed only for
about 4 days till her death.
29]We have come to the conclusion that evidence on
record is not sufficient for proof of the fact that
respondents/accused demanded dowry from PW1 Bhagwat for
marriage of his daughter with respondent/accused no.1-
Appasaheb. Similarly, it is seen that available evidence
led by prosecution is not sufficient to hold that
respondents/accused subjected deceased Shakuntala to
cruelty. Discrepant and laconic evidence of prosecution
witnesses, made it essential for the prosecution to
adduce evidence of Jamunabai Bhingardive as well as two
girls, who accompanied deceased Shakuntala to her
matrimonial house after marriage. Similarly, it was also
necessary for the prosecution to examine Indubai Gaikwad
- 42 -
and Prabhakar Gaikwad who were mediators in settling the
marriage. These persons were certainly the material
witnesses who could have given detailed account as to how
and on what terms the marriage was settled as well as how
and in which manner deceased Shakuntala was subjected to
cruelty by her husband and his relatives during her stay
with them up to 22.5.1994. Non examination of Jamunabai
and two girls who accompanied deceased Shakuntala to her
matrimonial house, makes the prosecution case about
subjecting the deceased Shakuntala to cruelty suspicious.
This inaction on the part of prosecution requires us to
draw adverse inference against the prosecution.
Similarly, non examination of Indubai and Prabhakar
Gaikwad also makes prosecution case regarding demand of
dowry doubtful.
30]There is one more aspect which makes the
prosecution case doubtful. That is delay in lodging the
report by PW1 Bhagwat–father of deceased Shakuntala. We
are aware that delay in lodging F.I.R. alone cannot be
used as formula for doubting the prosecution case.
However, if prosecution fails to satisfactorily explain
Cr.Appeal 291/95
- 43 -
the delay and there is a possibility of embellishment in
the prosecution version on account of such delay, then
only such delay would be fatal to the prosecution case.
Evidence of PW1 Bhagwat shows that, in the morning of
29.5.1994, he received information that his daughter is
ill. Then, he rushed to village Nirmal Pimpri. Prior to
that, PW2 Shantabai-mother of deceased accompanied by
Indubai immediately left for matrimonial house of
deceased Shakuntala alongwith person who gave this
intimation. Inquest Memorandum, Exhibit 12, was recorded
from 11.30 a.m. to 12.15 p.m. of 29.5.1994. This
document reflects presence of PW-1 Bhagwat and PW2
Shantabai on the spot. Cross examination of PW1 Bhagwat
shows that after 15 minutes of his reaching the
matrimonial house of his deceased daughter, police came.
Then, he was called by police for making enquiry. His
cross-examination reveals that upon enquiry police asked
his name and obtained his signature, meaning thereby,
that his statement might have been recorded by the police
authorities. However, it is clear that at this first
opportunity, PW1 Bhagwat has not made any complaint to
police despite finding his daughter Shakuntala dead at
Cr.Appeal 291/95
- 44 -
the house of accused persons. PW1 Bhagwat then accompanied the dead body to Pravara Rural Hospital, Loni. Evidence shows that police station was situated at town Loni itself. Though other from his village came at that place even till post-mortem examination of Shakuntala, he did not lodge report to police making grievance against respondents/accused persons.
31]As seen from his cross examination, after
autopsy, police asked PW1 Bhagwat as to whom dead body of
Shakuntala be given. This witness informed police that
dead body of Shakuntala be given to respondents/accused
persons. Then, funeral of deceased Shakuntala was
arranged at the village of respondents/accused persons.
As seen from cross-examination of PW1 Bhagwat, at the
time of funeral of deceased Shakuntala, in two vehicles,
people from his village including Amrutlal Gandhi-
Sarpanch and PW5-Balasaheb Gaikwad-leader of RPI, came.
It was at their instance, dead body of Shakuntala was
taken to his village Ashvi. It was thereafter that the
FIR came to be lodged against respondents/accused at
about 10.30 a.m. of 29.5.1994. This evidence makes it
clear that, if really deceased Shakuntala was subjected
- 45 -
to cruelty and respondents/accused had committed her
dowry death then PW1 Bhagwat-father of deceased
Shakuntala had tons of opportunity to lodge report
against them immediately on reaching her matrimonial
house in morning hours of 29.5.1994. It is not the case
of the prosecution that disturbed mental condition
prevented PW1 Bhagwat, to lodge report against
Respondents/accused persons. The sequence of events
followed after death of Shakuntala as described by PW1
Bhagwat sounds quite unnatural. All the while even though
he was accompanied by his relatives, he preferred not to
make any complaint about alleged demand of dowry and
cruelty to the deceased. The delay in lodging F.I.R. is
not at all explained by the prosecution and it gives
indication of false implication of respondents/accused
persons in the crime in question at the instance of
Amrutlal Gandhi–Sarpanch and PW5 Balasaheb Gaikwad-leader
of a political party, at whose instance, dead body of
Shakuntala was taken to Ashwi from due funeral pyre at
Nirmal Pimpri.
32]In the result, we are of the considered opinion
- 46 -
that the prosecution has failed to prove any of the
charges leveled against respondents/accused persons and
as such the instant appeal is devoid of substance and,
therefore, liable to be dismissed. As such, by answering
the points accordingly, we proceed to pass the following
order :-
The appeal is dismissed.
ndk/ sa.doc
3 issues framed by the court
Did the prosecution prove that the accused caused the bride's death by administering poison?
Did Section 106 require the accused to explain the poisoning death in their house without foundational prosecution evidence?
Did the prosecution prove dowry demand and cruelty or harassment soon before death sufficient to establish dowry death and cruelty?
Colour shows how this judgement treated each authority
Prithviraj V/s. State of RajasthanApplied¶119
2004 Cri. L.J., 2190 · Who else cites this
Hiralal V/s State, Government of NCT of DelhiApplied¶205
(2003) 8 SCC 80 · Who else cites this
6 provisions across 3 enactments
The State of Maharashtra
Appasaheb Balajee Parkhe
Radhakrushna Balajee Parkhe
Hausabai Balajee Parkhe
Balajee Bhaurao Parkhe
S.S. SHINDE
A.M. BADAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court