4 Dec 2022 8:05 AM GMT
The Bombay High Court recently observed that parents not taking any action on their daughter's complaint about the dowry demand and harassment by her in-laws is not a conduct of a prudent person, while setting aside a man's dowry death conviction. "If the demand of dowry and ill-treatment on that count was narrated by the deceased, then PW1 (father) without wasting time could have...
The Bombay High Court recently observed that parents not taking any action on their daughter's complaint about the dowry demand and harassment by her in-laws is not a conduct of a prudent person, while setting aside a man's dowry death conviction.
"If the demand of dowry and ill-treatment on that count was narrated by the deceased, then PW1 (father) without wasting time could have lodged the report. In my view, this would reflect on their conduct. Their conduct in the facts situation, appears to be contrary to the conduct of man of prudence placed in a similarly situation"
Justice G. P. Sanap of the Nagpur bench made the observation while dealing with an appeal by a man convicted under section 304B of the IPC for the death of his 6-8 weeks pregnant wife.
The accused and the victim woman had a love affair and married secretly in 2016. The family of the deceased cut ties with her after the marriage.
The prosecution alleged that after 4-5 months of marriage in 2016, the husband and his family members started ill-treating the woman and demanded dowry. Before death, the victim met her mother at the house of a neighbour and told her that her in-laws are demanding dowry and mentally and physically harassing her. Four days later, the woman's body was found in the village pond.
The medical officer opined that the death was due to strangulation with drowning after death. The sessions judge framed charge against the husband and his family members under section 304B (dowry death) of the IPC, and an alternate charge under section 302 (murder) IPC was also framed. The appellant was found guilty under section 304B.
The victim's mother testified in the trial that she told her that her husband and his family members had said that her parents would have spent 5-6 lakhs if they had performed the marriage and since the money was saved due to their love marriage, she should should bring it from her father "as dowry".
The court observed that the alleged dowry demand was improbable. "It is seen that after this incident, PW1 (father) neither took any action nor contacted deceased Shefali. In the context of the chronology of events, the case put forth with regard to the demand of money by the appellant and the family members appears to be improbable."
The court noted that the mother's testimony about the incident at the neighbour's house is the only evidence regarding demand of dowry, and it is not supported by the neighbour's testimony.
It further noted that the parents of the deceased had admitted that they had a grudge against the appellant and his family as their daughter had eloped and married him, thus "spoiling" their reputation.
The bench also said that the mother improved her statement before the court. All these factors create doubt in her story, it added.
Mere Dowry Death Or Murder?
A panel of doctors had given the final opinion that the cause of death was strangulation with postmortem drowning. The court said that the trial court committed grave error in not framing principal charge of murder considering the cause of death.
"It is further seen that learned Sessions Judge has accepted the case of prosecution that deceased died homicidal death. In my view, this was the crux of the matter. In this view of the matter, charge for murder ought to have been a principal charge. The learned Sessions Judge somehow or the other has missed this crux of the matter and committed grave error," Justice Sanap said.
The court said that the sessions judge was confused between offence of murder on offence of dowry death. The ingredients of the two offences are totally different.
"The learned Sessions Judge as can be seen has completely ignored this important aspect and proceeded on the assumption that offence of dowry death would take in its fold offence of murder", the court observed.
There is no discussion of murder charge in the trial court's judgment which is contradictory to the law, the court said.
"It is seen that this error committed by the learned Session Judge has further been compounded by the prosecution. It is seen that prosecution has accepted the judgment and order passed by the learned Sessions Judge without any demur. At the trial stage, learned prosecutor incharge of the case before the Sessions Court did not apply for alteration or addition of the charge after obtaining the final opinion of cause of death".
The court said the State has not filed any appeal for enhancement of the sentence of the appellant or taken any steps to rectify the position with regard to charges. "This Court is therefore left with no alternative but to decide this appeal being an appeal against conviction and sentence for the offence under Section 304B of the IPC," it added.
In the post mortem, it was found that the deceased had injuries on her eyelid and neck. All the injuries happened before death. However, the sessions judge concluded that the deceased died an unnatural homicidal death due to bodily injuries.
The high court said that this conclusion is misconceived. "…homicide means killing of a man by a man. Section 299 of the IPC defines culpable homicide. Therefore, there cannot be unnatural homicidal death. It seems that this finding as to the nature of death has been recorded to bring the case within the ambit of Section 304B of the IPC."
It added that the trial court ought to have recorded a finding with regard to the nature of death based on the oral evidence of the doctor.
"The deceased had sustained three injuries to her neck. The injuries clearly indicated that deceased was strangulated, killed and thereafter thrown in the pond. Injuries were antemortem. It therefore goes without saying that in this case the death was pure and simple homicidal death," said the court.
The sessions judge had acquitted the other accused persons observing that no direct role has been attributed against them and there are general and vague allegations of harassment. The high court found this unsustainable as there was identical evidence against the appellant as well.
The court also said that failure to produce call records of the victim's phone despite repeated requests of the appellant creates doubt about the prosecution's case.
The court concluded that the prosecution failed to prove the charge of section 304B IPC as the basic ingredients - a demand of dowry, and ill treatment by the husband or any relative regarding demand of dowry, have not been made out.
Case no. – Criminal Appeal No. 260 of 2021
Case title – Mangesh s/o Deorao Kannake v. State of Maharashtra
Citation: 2022 LiveLaw (Bom) 473
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