V. Bhardwaj, J.
1. This is an appeal filed by the convict appellant against his conviction Under Section 304B I.P.C. and the sentence of 7 year's R.I. imposed on him by the VIIIth Addl. Sessions Judge, Indore.
2. The prosecution case is that on 11.8.87 one Ashok Kumar S/oSunderlal filed a F.I.R. that deceased Ushabai W/o Rameshwar had died because of burn injuries suffered by her. On investigation it was found thatUshabai was married to Rameshwar 3 years prior to the incident. Her husbandwas not treating her well and was demanding money for purchase of Luna byway of dowry. A case of dowry death was, therefore, registered and afterfurther investigation the accused/appellant Rameshwar was prosecuted on acharge Under Section 304B I.P.C. On trial the accused/appellant was convicted andsentenced as mentioned above.
3. Aggrieved by the conviction and sentence the appellant has filedthis appeal.
4. Shri J.P. Gupta, Senior Advocate appearing for the appellantsubmitted that the conviction is not based on legal evidence. He submittedthat in the F.I.R. the demand of dowry or ill-treatment because of the demandof dowry being not fulfilled are not mentioned. The F.I.R. was lodged by aperson who later deposed of his knowledge of the facts and the back-groundabout the alleged dowry death.
5. According to Shri Gupta this was the fatal commission whichpointed out that even the complainant knew that it was an accidental death butlater on built up a story of dowry death.
6. Shri Gupta further pointed out that all the prosecution witnesseswere close relations of the deceased from her parent's side and even their conduct immediately after the incident clearly suggested that it was a case ofaccidental death. All these witnesses have not said a word about dowry deathor demand of dowry when right from the beginning all of them were presentand the Police Officers were also present on the spot. Shri Gupta furtherpointed out that the incident was of 11.8.1987 and the statements of prosecution witnesses were recorded by the Police on 4.9.1987.
7. It was further contended on behalf of the appellant that chargeUnder Section 304B I.P.C. cannot be said to be proved in the case because the prosecution has completely failed to prove that it was a dowry death. According tothe appellant there is no evidence to show that the deceased was subjected tocruelty or harassment by the appellant seen before her death' and it was alsonot proved that the deceased was subjected to cruelty or harrassment for or inconnection with any demand for dowry. In support of his submissions ShriGupta has relied upon the decisions reported in Sharad v. State of Maharashtra(AIR 1984 SC 1622) G.B. Patel v. State of Maharashtra, (AIR 1979 SC 135);Balkrushna v. State of Orissa, (AIR 1971 SC 804); (AIR 1945 Privy Council 18)and 1984(II) Crimes 584. Shri Desai for the State supported the convictionsentence.
8. By the Dowry Prohibition Amendment Act, 1986 (Act No. 43 of1986) a new Section 304B relating to dowry death was introduced in the IndianPenal Code. It reads as under :-
'304-B. (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.Explanation : For the purposes of this Sub-section, 'dowy' shall havethe 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.'
9. Dowry has been defined in Section 2 of the Dowry Prohibition Act, 1961 as hereunder :
'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 thei marriage; or
(b) by the parents of either party to a marriage or by anyother person, to either party to the marriage or to anyother person
at or before or after the marriage in connection withthe marriage of the said parties, but does not include dower or mahr in the case or persons to whom the MuslimPersonal law(Shariat) applies.
10. The Dowry Prohibition Act, 1986 also introduced a new Section 113B in the Indian Evidence Act, which reads as follows :-
113-B. Presumption as to dowry death ;-When the question iswhether a person has committed the dowry death of a woman and itis Shown that soon before her death such woman had been subjectedby such person to Cruelty or harassment for, or in connection with,any demand for dowry; the Court shall presume that such person hadcaused the dowry death.'
Explanation-For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304B of the I.P.C. (45 of I860)'.
11. In the light of the aforesaid provisions of law, we have to examine the evidence in the case to find out whether the offence Under Section 304B I.P.C. has been proved beyond reasonable doubt against the appellant or not,
12. Shri Gupta, learned Counsel for the appellant has taken methrough the evidence of PW 1 Ashok Kumar who has lodged the F.I.R. PW 2Chhotelal, the father of the deceased; PW4 Laxmibai, mother of the deceased;PW 5 Ashabai, sister of the mother of the deceased as also PW 9 Vinod, PW 12Satyanarain and PW 16 Jitendrasingh Rathore, Investigating Officer. ShriGupta laid emphasis on the commissions in this F.I.R. about the demand of .dowry and harassment because of non-fulfillment of that demand. In F.I.R.Ashok Kumar S/o Sunderlal whose wife is the sister of the mother of deceasedhas stated that he had received a massage on telephone from Vinod the son of his sister that deceased Ushabai had received burn injuries. On that Ashok-Kumar went to her house and saw that she was lying dead completely burnt in her room. He has also stated in the F.I.R. that how she got burnt is not known to him. Thus the F.I.R. lodged was completely inocuous and did not blame anyone for the death.
13. Shri Gupta submits that the same person has introduced a storyin his statement before the Court that his wife Ashabai had told him about oneand half year prior to the incident that when Ashabai had gone to the houseof deceased Ushabai and talked to her the clothes of deceased Ushabai was wearing were stinking of kerosene. On being asked by Ashabai, deceased Ushabai had told Ashabai that appellant Rameshwar was trying to kill her by setting her a fire.
14. He further stated that Ashabai told him that Ushabai told her that appellant Rameshwar was demanding Rs. 4-5 thousand as dowry or in the alternative was demanding a Luna vehicle.
15. On being asked in the cross-examination about the omissions inthe FIR about the demand of dowry and harassment because of non fulfillment of such do and the witness simply stated that he did not have that muchtime to narrate all these things to the Police or to get them incorporated inthe FIR. He also stated that he was frightened and, therefore he lodged the report and went away. Shri Gupta pointed out that the entire statement relatingto the demand of dowry and attempt to set the deceased on fire was hearsay andwas not admissible in evidence. The truthfullness of the statement is alsodoubtful because of the omission to incorporate the allegations in the F.I.R.
16. P.W. 2 Chhotelal Dongarji, in the father of the deceased. He hastestified the fact that the marriage was performed very well. He has stated thatdeceased Ushabai used to come to his residence at times and used to tell thather husband Rameshwar harassment her, beats her and demands Rs. 5,000/-as dowry. The witness also states that deceased Ushabai had told him thatRameshwar demands Rs. 5,000/- or in the alternative a Luna Vehicle and usedto beat Ushabai for this. This witness also testified that about a year prior tothe incident Ushabai had told hirn that Rameshwar had poured Kerosene onher body. This witness who is the father of the deceased also introduced anew angle to the story by stating that Ushabai, the deceased had hold him ayear before the incident that her husband had illicit relations with the wife ofhis brother and on her restraining him from keeping such illicit relations,Rameshwar used to beat her. The witness also deposes that Ushabai had toldhim that Rameshwar harases and beats Ushabai. The witness also stated thathis wife had complained to Arjun who is maternal uncle of Rameshwar aboutpouring of kerosene on Ushabai an year before the incident and the said Arjunrebuked Rameshwar and advised him properly and, therefore, no action wastaken about that incident earlier. Several omissions in his statement to thePolice were pointed out to this witness and he could not satisfactorily explainthe omissions. Shri Gupta had pointed out that this witness also has givenout a hearsay evilence about things which had taken place a year beforethe incident.
17. P.W. 4 Laxmibai is the mother of Ushabai. She had testified thatRameshwar had started harassing Ushabai 6 month's after the marriage. Thedemand of Luna was also an year and half prior to the incident and thedemand of Rs. 5,000/- was also of that time. This witness has said the kerosenewas poured on Ushabai, 4-6 months prior to the incident. This witness hadintroduced a new witness, a neighbour of Ushabai (Dholakwali) who hadinformd this witness that Rameshwar beats Ushabai and demands money orLuna The witness has also given an opinion that because of this harassmentUshabai set herself to fire and died. In her cross-examination she had admittedthat at the time of marriage no talk about dowry had taken place. Omissionsin her statement to the police were Pointed out to this witness and she couldnot give any satisfactory explanation about them. In her cross-examinationthis witness has also deposed that she could not name the Dholakwali whowas the neighbour of Ushabai. The information given by Dholakwali was also stated to have been given at the time when Ushabai was lying dead.
18. P.W.5 Ashabai is the wife of Ashok Kumar who has lodged theF.I.R. and sister of the mother of the deceased. She has also testified to theincident of pouring kerosene on Ushabai, which is said to have taken place oneand quarter year before the incident. She stated that when she rang the doorbail of Ushabai's residence, Ushabai saw her from second storey. Then shecame down. Her clothes were completely drenched in kerosene. She did nottell her anything about it and when she offered to call her mother Laxmibai,she accepted the suggestion and told her to call her. At that time Ushabai alsotold Ashabai that Rameshwar harasses her, beats her and asks her to bringRs. 5,000/- from her parents or bring Luna from them. Ashabai also deposesthat Ushabai had told them that kerosene has been poured by her husbandRameshwar on her. Omissions in her statement to the Police were alsopointed out to her and she could not explain them properly.
19. This is all the evidence relating to harassment and demand ofdowry.
20. In Emperor v Khwaja Nazir Ahmed, (AIR 1945 Privy Council 18)Their Lordships of the Privy Council observed that the object of the provisionsas to the FIR is to obtain early information of alleged criminal activity torecord the circumstances before there is time for them to be forgotten of embellished. In Sharad's case (supra) Their Lordships of the Supreme Court have inpara 48 observed that when all persons examined on a point alter close relationsand friends of the deceased, there is possibility of exaggeration. In view of theclose relationship and affection any person in the position of the witness wouldnaturally have a tendency to exaggerate or add facts which may not have beenstated to them at all. Not that this is done consciously but even unconsciouslythe love and affection of the deceased would create a psychological hatredagainst the supposed murderer and, therefore, the Court has to examine suchevidence with very great care and caution. Even if the witnesses were speakinga part of the truth or perhaps the whole of it, they would be guided byspirit of revenge or nemesis against the accused person and in this processcertain facts which may not be could not have been stated may be imagined tohave been stated consciously by the witnesses in order to see that the offenderis punished. This is human psychology and no one can help it.
21. On the point of delay in recording statements reliance has beenplaced by the appellant on a decision of Supreme Court in Balkrishna's case(supra) and C.B.Patel case (supra). In the latter case the Supreme Court hasobserved that in the facts and circumstances of the case delay in recording thestatement of material witnesses casts a cloud of suspicion on the credibility ofthe entire warp and wolf on the prosecution story. Normally in a case wherethe commission of crime is alleged to have been seen by the witnesses who arceasily available a prudent Investigator would give to the examination of suchwitnesses precedence over other witnessess.
22. Tested on the touchstone of the above case law the evidence inthe case does not qualify the test of credibility to bring home the guilt toaccused appellant. The FIR does not raise any doubt the death being a dowrydeath, the demand of dowry, harassement or the earlier attempt to set thedeceased on fire. As observed by the Privy Council the versions given later onby the witnesses is a definate embellishment crept in during the period betweenlodging of F.I.R. and examination of witnesses by the Police, a period of over23 days. The delay in examining the witnesses is clearly unreasonable and unexplained.
23. All the witnesses were close relations and were available to the Police right from the date of the incident. The testimony of all the aforesaid witnesses who are close relatives of the deceased has to be examined with great care and caution. It is clear that these interested witnesses have given liberty to their flight of fancy and have greately exaggerated and embellished the story. The conviction cannot be held relying on the testimony of such witnesses.
24. Even on merits the ingredients of offence Under Section 304B IPC have not been proved by the prosecution. Though the death of the deceased has taken place within 7 years of her marriage by burns, the prosecution has failed to show that seen before her death she was subjected to cruelty or harassment by her husband/appellant. The witnesses have, testified to things which had taken place one and half years prior to the incident and no incident seen before the death was alleged or proved. The allegations of cruelty and harassment one and 11/2 year prior to the incident cannot be said to have taken place seen before the death of the deceased.
25. Moreover the mother of the deceased has clearly admitted that atthe time of the marriage no talk of dowry had taken place. That the crueltyor harassment was for and in connection with demand for dowry has also notbeen proved in the case.
26. The definition of dowry in Section 2 of the Dowry Prohibition Act,1961 as amended by (Dowry Prohibition Amendment Act, 1986) provides thatdowry means any property or valuable security given or agreed to be giveneither directly or indirectly by one party to a marriage to the other party tothe marriage or by parents of the either party to the marriage or by any otherperson to either party to the marriage or to any other person on or before orany time after the marriage in connection with the marriage of the said parties.
27. Therefore, the demand of Rs. 4-5 thousand or of Luna Vehicle allaged to have been made by the accused appellant will have to be proved to be inconnection with the marriage and/or will have to be shown to be agreed to be given by the other side. Both these elements are absent in the demand of Rs. 4-5 thousand or Luna Vehicle alleged to have been made by the accused appellant. There is not a word in the evidence about the demand having been agreed to by the parents or any other person or that it was in connection with the marriage. On the contrary the mother of the deceased has clearly admitted that there was no talk of dowry at the time of marriage.
28. The presumption as to dowry death Under Section 113B of the Evidence Act shall also not be available to the prosecution because as already observed above it has not been proved that soon before her death the deceased was subjected to Cruelty or harassment for or in connection with any demand for dowry.
29. In the result the conviction of the appellant by the Trial Courtcannot be upheld.
30. The Trial Court had held the offence Under Section 304B IPC provedagainst the appellant relying on highly exaggerated testimony of interestedwitnesses who were examined by the Investigating Officer 24 days after theincident. The ingredients of the offence Under Section 304B TPC were also not provedby the Prosecution.
31. The conviction and the sentence deserves to be set aside and ishereby set-aside.
32. The appeal is allowed and the appellant is acquitted of the charge.He shall be released forthwith.'