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CASE NO.:

Appeal (crl.) 1029 of 2001

PETITIONER:

SUNIL BAJAJ... APPELLANT

Vs.

RESPONDENT:

STATE OF M.P.... RESPONDENT

DATE OF JUDGMENT: 11/10/2001

BENCH:

U.C. Banerjee & Shivaraj V. Patil

JUDGMENT:

SHIVARAJ V. PATIL J.

Leave granted.

The appellant has filed this appeal, aggrieved by the order

dated 19.8.2000 passed by the High Court confirming the order of

conviction passed under Section 304-B IPC and sentencing the

appellant to undergo rigorous imprisonment for seven years by the

trial court. The appellant was tried for offences under Section

304-B and in the alternative under Section 306 IPC. The trial

court acquitted the appellant of the charge punishable under

Section 306 IPC and convicted him under Section 304-B IPC. The

prosecution case in brief was that the appellant married Suman on

19.3.1991 at Saharanpur in U.P. He was asking his wife Suman to

bring money from her parents and her parents were giving money to

her from time to time. In June, 1995, Suman came to Saharanpur

and told her mother that the appellant was demanding an amount of

Rs. 20,000/- and she further told that the appellant had illegal

relations with the girls of doubtful character and used to bring

those girls to his house; those girls had beaten her; the

appellant was ill-treating and harassing her; he subjected her to

cruelty with the result Suman within a period of seven years of

marriage committed suicide after burning herself by sprinkling

kerosene oil on her on 28.8.95 in Nanak Complex, New Market,

Govindpura at Bhopal. On the information from Dr. Anup Debey

about hundred percent burns of Suman Bajaj on tlephone, Aishbag

Police registered a case and F.I.R. was lodged on 30.8.1995 under

Section 304-B IPC. The prosecution in all examined 12 witnesses

to prove the case. One defence witness was also examined. The

conviction was based upon the evidence of PW4, PW5, PW6 and PW9.

PW4, PW5 and PW6 are the mother, father and brother of the

deceased respectively and PW9 is the doctor who conducted post-

mortem examination on the dead body. The appellant pleaded not

guilty and his defence was that pecuniary condition of the

parents of the deceased was not good; he himself is well off and

had advanced money to the father of the deceased on several

occasions; he was unable to return the money to the appellant and

that he was falsely implicated in the case.

The learned counsel for the appellant urged that no

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reliance can be placed on the evidence of PW4, PW5 and PW6, being

close relatives of the deceased; the evidence given by them as to

demand of dowry was too general and vague; their evidence

suffered from contradictions on material points and they had

motive to speak against the appellant. He further submitted that

both the courts have failed to see that the economic condition of

the appellant was much better than that of the parents of the

deceased and there is no evidence to show as to how the parents

raised money and whether they paid money at all to the appellant

as dowry. The learned counsel strongly contended that there was

no definite evidence to show that Suman was subjected to cruelty

or harassment by the appellant soon before her death for, or in

connection with any demand for dowry to attract offence under

Section 304-B IPC; even the letters said to have been written by

deceased Suman (Exbt. D/3 and P/9) do not support the case of the

prosecution; in the absence of satisfying the ingredients of

offence under Section 304-B IPC, order of conviction passed and

sentence imposed on the appellant cannot be sustained.

The learned counsel for the respondent-State, in

opposition, submitted that the trial court as well as the High

Court were justified in convicting the appellant on the basis of

the evidence brought on record.

We have given our attention and consideration to the

submissions made by the learned counsel for the parties.

Normally this Court will be slow and reluctant, as it ought to

be, to upset the order of conviction of the trial court as

confirmed by the High Court appreciating the evidence placed on

record. But in cases where both the courts concurrently recorded

a finding that the accused was guilty of an offence in the

absence of evidence satisfying the necessary ingredients of an

offence; in other words, when no offence was made out, it becomes

necessary to disturb such an order of conviction and sentence to

meet the demand of justice. In order to convict an accused for an

offence under Section 304-B IPC, the following essentials must be

satisfied:

1) The death of a woman must have been caused by burns or

bodily injury or otherwise than under normal circumstances;

2) Such death must have occurred within 7 years of her

marriage;

3) Soon before her death, the woman must have been subjected

to cruelty or harassment by her husband or by relatives of

her husband;

4) Such cruelty or harassment must be for or in connection

with demand of dowry.

It is only when the aforementioned ingredients are

established by acceptable evidence such death shall be called

dowry death and such husband or his relative shall be deemed

to have caused her death. It may be noticed that punishment for

the offence of dowry death under Section 304-B is imprisonment of

not less than 7 years, which may extend to imprisonment for life.

Unlike under Section 498-A IPC, husband or relative of husband of

a woman subjecting her to cruelty shall be liable for

imprisonment for a term which may extend to three years and shall

also be liable to fine. Normally, in a criminal case accused can

be punished for an offence on establishment of commission of that

offence on the basis of evidence, may be direct or circumstantial

or both. But in case of an offence under Section 304-B IPC an

exception is made by deeming provision as to nature of death as

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dowry death and that the husband or his relative, as the case

may be, is deemed to have caused such death, even in the absence

of evidence to prove these aspects but on proving the existence

of the ingredients of the said offence by convincing evidence.

Hence, there is need for greater care and caution, that too

having regard to the gravity of the punishment prescribed for the

said offence, in scrutinizing the evidence and in arriving at the

conclusion as to whether all the above mentioned ingredients of

the offence are proved by the prosecution. In the case on hand,

the learned counsel for the appellant could not dispute that the

first two ingredients mentioned above are satisfied.

We have now to see whether the remaining two ingredients

are also satisfied looking to the evidence on record. It is

unfortunate that the High Court in the first appeal, as expected

of it, did not analyse, evaluate and scrutinize the evidence for

reappraisal. The High Court in a summary way without discussing

the oral evidence of PW-4, PW-5 and PW-6 mainly on the basis of

which the appellant was convicted, has stated that the oral

evidence of these three witnesses is consistent with the contents

of the letter Exbt. P/9. The High Court also observed that

immediate cause for Suman to bring an end to her life was the

conduct of the husband in bringing the girls of doubtful

character to his house. Having said so, the High Court did not

discuss and record reasons as to whether the deceased was

subjected to cruelty for and in connection with demand of dowry

soon before her death. It simply concluded that it had been

proved that the accused demanded an amount of Rs. 20,000/- as

dowry from the parents of Suman through her and subjected her to

mental cruelty in connection with that demand. When there was

serious challenge as to the demand of an amount of Rs. 20,000/-

as dowry without discussing the evidence on this point such as

whether the parents of the deceased were capable of arranging for

Rs. 20,000/- and whether there was the so-called demand soon

before the death of Suman was proved or not, the High Court

should not have concluded that Suman was subjected to cruelty for

or in connection with demand of dowry and that too when there was

no evidence to support the said conclusion which resulted in

grave consequences. The High Court has simply confirmed the

finding of the trial court holding the appellant guilty of the

offence. It is under these circumstances, it has become

necessary for us to look at the material and relevant evidence

brought on record.

Before proceeding further, we may indicate here that during

the course of the argument, after going through the evidence, the

learned counsel for the appellant was not able to pursue that the

deceased was not subjected to mental cruelty on account of the

appellant bringing the girls of bad character to his house but he

hastened to add that the prosecution utterly failed to establish

the demand of dowry by the appellant and that the deceased was

subjected to cruelty for and in connection with demand of dowry.

In this view, we focus our attention, in particular, to the last

ingredient of the offence.

PW-1, Satyapal, in his evidence has stated that the

appellant is a landlord and runs a shop; his two brothers are on

good posts in Air Force; the economic condition of PW-5, the

father of the deceased, was normal; the deceased whenever used to

come to village, did not make any complaint. PW-4, mother of the

deceased, has stated before the court in her evidence that since

after the marriage, the appellant was harassing the deceased; in

the month of June, 1995, the appellant had asked Suman to bring

Rs. 20,000/- from her parents and they had told Suman that they

will give Rs. 20,000/- after making arrangement; on 27.8.1995 at

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7.30 P.M. Suman made a telephone call from Bhopal to Saharanpur

and told her that the appellant was thinking of other girls and

two girls had come with him in the house and those girls caused

marpit with her and, therefore, she should send her father with

Rs. 20,000/; she has admitted in the cross-examination that no

demand of dowry was made by the accused at the time of marriage;

her husband is running the shop of watch repairs, earning Rs.

100-150/- per day; she has 5 sons and 3 daughters; 2 brothers of

the appellant are Engineers in the Air Force and the financial

condition of the appellant, his father and brothers is very good.

She has further stated that after the marriage during the life

time of suman, she did not go to Bhopal; she had gone to Bhopal

after two months of the death of Suman, only then police had

recorded her statement; she has also stated that I have no

phone in my house. This is wrong to say that Suman had not made

a telephone call to me. I do not know as to whether, after

hearing the phone of suman, my husband had made the arrangement

of rupees twenty thousand. I did not tell my husband that Suman

has asked for rupees ten thousand. Even I did not tell my son

Madan about this that Suman has asked for ten thousand rupees.

It has come in the evidence that Suman has two children. PW-4

has stated that she knows reading and writing but pleaded

ignorance whether there is a bank account of them. PW-5, father

of Suman, has stated that on 27.8.1995, there was a telephone

call of Suman and his wife attended the telephone call in the

house of his neighbour and she had told him that Suman told her

on telephone that she was very much disturbed; two girls had come

to her house who beat her and that everything cannot be told on

telephone and that she should send father soon. He also stated

that the appellant used to demand money from Suman, therefore, at

that time when he went to Bhopal from Saharanpur, he had taken a

sum of Rs. 10,000/- with him with the idea to settle the dispute

between the appellant and Suman. In cross-examination, he has

stated that he had not told the Magistrate at that time that he

had brought Rs. 10,000/- at the time of incident; there were

material omissions. When confronted, he was not able to say why

they were not recorded in Exbt. D/4. He contradicts his own

report made in Exbt. P/7 stating that he had not got written in

that report that upto six months after the marriage, the

behaviour of the appellant and Suman remained good. When he was

questioned as to why material facts were not written in the

report Exbt. P/7, he says because on that day he was to receive

the dead-body of Suman. PW-6 is the brother of Suman. He also

has stated that Suman had telephoned on 27.8.95 that her father

should go to Bhopal as she was very much disturbed. He was not

able to say why it was not stated in the statement Exbt. D/6 that

when he and his father came to Bhopal, they had brought Rs.

10,000/-. Both the courts have found that Exbt. D/3 and P/9 were

the letters written by Suman. The marriage between the appellant

and Suman took place on 19.3.1991. Exbt. D/3 is a detailed

letter running into three pages. The very first sentence of the

letter shows that the appellant and Suman were comfortable and in

the entire letter there is no complaint or grievance of Suman

whatsoever against the appellant. Exbt. P/9 is the letter

written by Suman to her father before her death and recovered

from the house at Bhopal. The said letter reads as follows:-

The further information is this that I am very

sad. Papa Ji I am very much disturbed. The

moment you receive this letter, please come at

Bhopal immediately. Sunil has started bad

work. The girls daily come in the house. They

give me threats. Papa ji if you do not come

then I may do anything. If you have a little

care of your daughter then you will certainly

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come. Sunil taunts me daily that your mother

and father are not going to ask about your well

being. If you like then you please being one

brother. Rest of the things shall be disclosed

when you come in Bhopal. Papa you please speak

in support of your daughter. You will not

speak anything which may give support to Sunil

and father-in-law. You please make a telephone

when you come. I will come to receive you at

the Railway station. Durga bhaiya you please

speak about this in the house of Mama JI.

As can be seen from this document on which much reliance is

placed by both the courts, there is absolutely nothing to

indicate about the demand of dowry and there is not even a

whisper about the same. If Suman was pressed by her husband to

get money and if that was the cause for her sadness or

difficulty, she could not have missed to write about the same,

that too having written about the bad work of appellant and his

bringing girls to the house. With this evidence on record, it is

clear that

(i) There is no evidence of demand of dowry or subjecting Suman

to cruelty for, or in connection with dowry other than

general, vague and inconsistent statements of interested

and motivated witnesses PWs 4, 5 and 6, being the parents

and brother of Suman;

(ii) Not a single member, neighbour or a relative of parties

either at Bhopal or at Saharanpur has come forward to speak

about subjecting Suman to cruelty by the appellant in

relation to demand of dowry;

(iii)It is the evidence of PWs 4, 5 and 6 that Suman had

telephoned on 27.8.1995, a day earlier to her death; PW-4,

mother of Suman had talked on telephone in the house of

neighbour; Suman told her that she was very much disturbed

on account of two girls brought to her house who beat her;

at that time also Suman did not tell her mother PW-4 about

demand of an amount of Rs. 20,000/- by the appellant;

neither the neighbour, in whose house PW-4 received the

telephone call, was examined nor any document was produced

such as the telephone bill etc. to show that at least there

was a call on that day at that time from the telephone

number from which Suman talked to her mother PW-4 on

telephone number in the house of neighbour; Suman talking

on telephone with PW-4 on that day itself is not proved;

(iv) It has come in the evidence of these witnesses that the

appellant and his family members were well-placed

financially and the parents of Suman have big family, were

not that confortable financially;

(v) There was no demand of dowry at the time of marriage in

1991. Two children were born to them. There was no

complaint of demand of dowry even in the letter Exbt. D/3

dated 9.3.1995 written by Suman to her father and brother;

Similarly, no mention was made about demand of dowry in her

letter Exbt. P/9, said to have been written soon before her

death;

(vi) there is no evidence as to how father of Suman arranged

money of Rs. 20,000/- or 10,000/-;

(vii) PW-4 did not tell PW-5 after receiving telephone call from

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Suman on 27.8.1995 that any amount was demanded by the

appellant. Even so PW-5 states that he had carried with

him Rs. 10,000/-. The High Court says that oral evidence

of these witnesses PWs 4, 5 and 6 is consistent with Exbt.

P/9. As already noticed above, in Exbt. P/9 there is

nothing to show about demand of dowry/amount;

(viii)There are material contradictions and serious omissions in

the statements of PWs 4, 5 and 6, as can be seen from their

evidence;

(ix) The conduct of the appellant bringing girls of bad

character to his house and those girls troubling Suman

appear to be the cause of her misery. From the evidence

brought on record that Suman was subjected to mental

cruelty on account of the same is clear but there is

nothing to establish that this mental cruelty was for and

in connection with demand of dowry; may be Suman could not

withstand and tolerate conduct of her husband of being in

the company of other girls of bad character and may be on

account of the same, she has put an end to her life;

(x) PWs 4, 5 and 6, on account of Suman having died of burns,

obviously were angry against the appellant and had every

reason to involve the appellant for the offence under

Section 304-B IPC.

It is unfortunate that trial court did not properly and

objectively consider the evidence to reach a conclusion that the

appellant was guilty of the offence. It may be also noticed here

that the appellant was acquitted for the charge under Section 306

IPC. The High Court, as already stated above, did not re-

appreciate the evidence as first court of appeal on criminal side

and has disposed the appeal in a summary way, confirming the

order of conviction and sentence passed by the trial court. In

the light of what is stated above, in our view, both the courts

committed serious and manifest error in concluding that the

appellant was guilty of the offence when the crucial and

necessary ingredient that the deceased Suman was subjected to

cruelty or harassment by him soon before her death for or in

connection with demand of dowry was not established and also

looking to the evidence and circumstances cumulatively. Under

these circumstances, the impugned judgment is unsustainable as it

suffers from infirmity and illegality as indicated above.

In view of what is stated above, this appeal is entitled to

succeed. The impugned judgment of the High Court confirming the

order of conviction and sentence passed by the trial court is set

aside. The appellant is acquitted. He be set at liberty

forthwith if he is not required in any other case.

.......................J.

[U.C. Banerjee]

.......................J.

[Shivaraj V. Patil]

October 11, 2001.