Kanchanben Purshottambhai Bhanderi Versus State of Gujarat : Supreme Court-Section 304B and 498A of Indian Penal Code 1860

 

Supreme Court of India

CRIMINAL APPEAL NO. 1152 OF 2009 Judgment Date: Dec 05, 2014

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1152  OF 2009


Kanchanben Purshottambhai Bhanderi                 .....Appellant

      Versus

State of Gujarat                                   .....Respondent


                               J U D G M E N T


SHIVA KIRTI SINGH, J.

The sole appellant, Kanchanben is the mother-in-law of the deceased  and  is
facing conviction under Section 304B and  498A  of  the  Indian  Penal  Code
(hereinafter referred to as IPC) with sentence of RI  for  eight  years  and
penalty  of  Rs.1,000/-  with  default  stipulation.    She  has  also  been
convicted  under  Section  3  of  the  Dowry  Prohibition  Act  with  simple
imprisonment for five years and penalty of Rs.3,000/- with  default  clause.
For conviction under Section 4 of the Dowry Prohibition Act,  she  has  been
inflicted with simple imprisonment of six months and penalty of  Rs.  500/-.
The sentences have to run concurrently.
For the offence in question in which the daughter-in-law  of  the  appellant
namely Hina died a  suicidal  death  after  consuming  poison  within  seven
months  of  her  marriage  with  the  son  of  the  appellant,  the   Police
chargesheeted three persons, accused No.1 Nilesh Kumar, who is  the  husband
of the deceased, the appellant  as  accused  No.2  and  appellant's  husband
Purshattambhai as accused No.3.   As  per  prosecution  case,  the  marriage
between the deceased and Nilesh was solemnized on 4.12.1997.  She went  from
her parental house at Surat to her  matrimonial  home  at  Vidyanagar  which
falls on the way from Surat to Ahmedabad and is just  one  hour  drive  from
Ahmedabad.  According to the prosecution case,  during  the  short  span  of
matrimonial life the deceased faced demands for dowry as well as mental  and
physical harassment from the accused persons.  She confided her  sad  plight
with her mother, the informant Chandrikaben (PW 8), as well  as  her  cousin
sister Aartiben (PW 10) and a friend Sonalben (PW 18).
According to the  prosecution  case,  the  accused  persons  wanted  various
articles by way of dowry and the demand was conveyed to the deceased  mainly
by her mother-in-law, the appellant who allegedly, also  used  to  instigate
her son Nilesh to ill-treat his wife the deceased.
The specific case of the prosecution is that on 5.7.1998, Hina informed  her
mother at about 8.30 a.m. on telephone that due  to  ill-treatment  she  was
fed up and was going to end her life.  Soon  thereafter,  the  father-in-law
of the deceased informed the parents  of  the  deceased-Hina  that  she  had
consumed poison and was being removed to hospital.   The parents left  Surat
by road but by the time they reached the hospital after  2  p.m.,  Hina  was
unconscious and was gasping for breath and soon she died.
The material on record discloses that on the date  of  death  of  Hina  i.e.
5.7.1998 itself, first information report was lodged  by  PW-8  Chandrikaben
disclosing physical and mental harassment of the  deceased  particularly  at
the hands of her mother-in-law as well as demands for  various  articles  by
way of dowry.   The  post-mortem  examination  of  dead  body  of  Hina  was
conducted after necessary panchnama  and  on  receipt  of  report  from  the
Forensic Science Laboratory, it was confirmed that she had died of  aluminum
phosphate poisoning.
After holding trial in accordance with law and  taking  on  record  oral  as
well as documentary evidence,  the  trial  court  did  not  find  sufficient
specific allegation against accused No.3, the father-in-law of the  deceased
and therefore accused No.3 was acquitted  of  all  charges  whereas  accused
No.1, the husband of the deceased  and  the  appellant  were  convicted  for
identical charges as noticed earlier but acquitted of charge  under  section
306 IPC.
Both the convicted accused preferred appeals before the High  Court  against
their conviction.  The State of Gujarat also  preferred  an  appeal  against
acquittal of accused No.3 and a criminal revision  was  also  instituted  on
account of a notice issued by the High Court  for  enhancement  of  sentence
awarded to the convicted accused.   The High Court by  common  judgment  and
order, which is  under  appeal  noticed  certain  special  features  in  the
conduct of accused No.1, the husband such as  his  having  received  a  call
from his wife, the deceased and taken her to  hospital  and  that  instances
against him were general  in  nature  and  therefore  granted  acquittal  to
accused No.1.  The appeal of the appellant was dismissed by  confirming  the
conviction and sentence as made by the Trial Court.
Mrs. Meenakashi Arora, learned senior counsel argued the  appeal  at  length
seeking acquittal of the appellant on various grounds  but  particularly  on
the ground that the evidence against the  appellant  and  against  her  son,
accused No.1, who has been acquitted by the High  Court  stand  at  par  and
therefore, the appellant is entitled to benefit of such parity.   The  other
main ground urged by the senior counsel  was  that  allegations  of  general
harassment or cruelty against the mother-in- law i.e. the  appellant  cannot
be used for sustaining conviction under Section 304B of the  IPC  unless  it
is found on  the  basis  of  good  evidence  that  such  harassment  was  in
connection with any demand for dowry.
To supplement the oral arguments extending over more than two days,  written
submissions have also been filed with a view to  criticize  the  prosecution
case and create doubt regarding the  correctness  of  allegations,  both  in
respect of harassment and demand for dowry.   It has also  been  highlighted
that the death was on account of deceased taking a small dose  of  poisonous
tablet which could be by accident.  A defence  plea  was  also  raised  that
father of the deceased had talks with one Minister  and  some  officials  of
the police while he was traveling from Surat to reach the hospital and  meet
his daughter.   On that basis  it  had  been  argued  that  the  prosecution
witness Dhirubhai  (PW 9) being a member  of  legislative  assembly  wielded
influence and interfered with investigation.  Elaborating such  interference
it was suggested that in all probability the deceased Hina  must  have  made
some statement in the Hospital and as no such statement has been  disclosed,
this appears to be a result of interference with  investigation.  Some  case
laws have also been cited  particularly on the proposition that  dowry  does
not include customary gifts not related to marriage, as  spelt  out  in  the
case of Satbir Singh vs. State  of  Punjab,  2001(8)  SCC  633  and  several
subsequent judgments taking the same view.  Judgment of this  Court  in  the
case of Durga Prasad vs. State of M.P. 2010 (9) SCC 74 is one  of  the  main
judgments relied upon to support the proposition that  even  if  cruelty  to
the deceased is proved, in  order  to  bring  home  the  guilt  against  the
accused under Section 304B IPC, it must further be proved that  the  cruelty
was in relation to demand for dowry.  Several other  judgments  referred  to
in the written submissions are  on  general  principles  governing  criminal
trials and therefore, need not be dealt with  separately.   However,  it  is
useful to take note of judgments beginning from the case  of  Hardial  Singh
vs. State of Punjab, 1992 Suppl. (2) SCC 455 in support of  the  proposition
that where evidence is common to all accused, parity must be  maintained  in
the matter of their conviction.
On the other hand, Ms. Jesel, learned counsel for the State  has  drawn  the
attention of this Court to paragraphs 22 and 23 of the High  Court  judgment
to show that all the criticism made against the prosecution case in  respect
of evidence to show harassment and demand of dowry was carefully  considered
to come to a finding that it was the accused No.2 Kanchanben, the  appellant
before us who caused cruelty and ill-treatment to Hina and  was  responsible
for demand of dowry.  In paragraph 23, the High Court further noted the ill-
treatment and harassment caused by the appellant and  her  behavior  when  a
common relation Hasmukhbhai (PW 12) went to the house of the accused with  a
view to advise the accused  not  to  torture  the  deceased.   From  further
discussion in paragraph 23 it was shown that so far as the evidence  against
the accused No.1  was  concerned,  only  general  allegations  were  leveled
against him and in that light the High Court  noticed  that  almost  similar
general allegations were leveled against accused  No.3,  the  father-in-law.
In paragraph 23.1 it was further noted that besides parity in  the  case  of
accused No.1 and accused No.3 apparently the deceased had faith  in  accused
No.1, as after consuming poison she immediately telephoned him.  It  was  he
who came to the house and  took  Hina  to  hospital  and  admitted  her  for
treatment.  The Court further noted that Hasmukhbhai (PW 12) did not  allege
any demand of  dowry  by  Nilesh  accused  no.1  nor  did  Nilesh  make  any
complaint against the deceased.  As against the appellant,  the  High  Court
found cogent and specific evidence that she ill-treated and  caused  cruelty
to the deceased.
Thus, according to learned counsel for the State, there could not  be  merit
in the criticism of the defence that the case of the appellant stood at  par
with that of other co-accused who have been  acquitted.   She  also  pointed
out  that  the  plea  of  deceased  having  taken  poison  by   mistake   or
accidentally is totally without merit, in view of earliest  version  of  the
occurrence in the FIR supported by the evidence of  the  informant  that  at
about 8.30 in the morning of the fateful date, the deceased  telephoned  her
mother to inform her that she was  fed  up  with  her  life  on  account  of
torture and she was going to end her life.  Hence, there could  not  be  any
chance of accidental taking of a highly fatal poison which no body can  keep
in the bed room mixed with ordinary medicines.   She conceded that a  demand
of a mixture juicer which was clearly established through evidence  of  more
than one witness was not mentioned in  the  FIR  and  demand  of  Rs.5  lacs
spoken of by Sonalben (PW 18), a friend of the deceased, might be a  mistake
for Rs.50 thousand as appearing in the evidence  of  some  other  witnesses.
She,  however,  further  contended  that  such  minor  discrepancies  cannot
discredit the entire prosecution case.
It stands to reason that all  minute  details  and  all  items  relating  to
demand by way of dowry may not come to the mind of grieving  mother  of  the
deceased at the time of lodging of FIR.  It is well established in law  that
FIR should contain the essential features of the  prosecution  case  but  it
cannot be expected to be an encyclopedia of whole prosecution case.  It  may
be quite natural for a friend of the deceased such as PW 18 not to  remember
the exact figure which was disclosed by the deceased sometime  back  as  the
amount demanded by the mother-in-law.  Learned counsel for  the  State  also
placed reliance upon the judgment of  this  Court  in  the  case  of  Satish
Chandra and Anr. vs. State of Madhya Pradesh 2014 (6) SCC 723 in support  of
the proposition that if sufficient and good material is available on  record
then mother-in-law of the victim in  a  case  under  Section  304B  IPC  may
lawfully be convicted for such an offence even in the absence of  conviction
of the husband.
After going through the relevant material including judgments of the  courts
below and evidence of material witnesses, particularly informant PW  8,  her
husband PW 9, a cousin of the deceased PW 10 and a friend  of  the  deceased
PW 18 this Court finds that  the  High  Court  has  committed  no  error  in
appreciating the evidence for coming to the conclusion that  allegations  of
torture as well as demand of articles by way of dowry against the  appellant
was clear, specific and stood proved.  Learned senior counsel has  tried  to
show that the family of the appellant is quite well off having two cars  and
two scooters for use. But that by itself is  not  sufficient  to  disbelieve
the statement of witnesses noticed above.  Even the evidence of  PW  12  who
is the common relation of both the parties discloses in no  uncertain  terms
that he had received information from not only  the  informant  Chandirkaben
(PW8) but also from his niece Aartiben (PW 10) of demand of  dowry  articles
as well as harassment and torture made to deceased  Hina  and  disclosed  by
her to the informant and PW 10.  In  the  last  part  of  his  statement  in
chief, PW 12 has categorically stated that Hina was being harassed  mentally
and physically  for  the  purpose  of  receiving  dowry  and  therefore  she
committed suicide by taking poison.  The evidence of PW 8, the informant  at
many places is very specific based upon version given by the  deceased  that
her mother-in-law was finding  faults repeatedly with her house  hold  work,
she was compelling her to get up early in the  morning  and  was  misguiding
Nilesh,  accused  No.1  by  talking  about  very  minor  matters  about  the
deceased.   At another place PW 8 deposed that  the  deceased  informed  her
that her mother-in-law asked the deceased in the name of Nilesh to  bring  a
big box type cot,  room furniture,  juicer  mixer,  gifts  and  cash  amount
received in marriage from her parents otherwise Nilesh  would  divorce  her.
When Hina told her mother in law that if such  talk  takes  place  she  will
commit suicide, the mother-in-law replied that her son will be  relieved  if
she commits suicide.
Even the evidence of  PWs  10  and  18,  when  examined  carefully  disclose
specific and clear allegations against the appellant in  respect  of  demand
as well as torture.
On a careful  perusal  of  the  entire  materials,  it  is  found  that  the
appellant cannot claim parity with the case of accused Nos.1 or 3  who  were
acquitted by the High Court and by the Trial Court respectively.  The  other
criticisms against the prosecution case were raised before the  court  below
and those have been satisfactorily dealt with by them.  Hence  they  require
no repetition.
In the facts of the case, we  find  no  merit  in  this  appeal  and  it  is
accordingly dismissed.   However, in our  view  ends  of  justice  would  be
satisfactorily met by reducing the sentence of eight years RI  for  offences
under Section 304B and 498A  to  seven  years  RI.   We  order  accordingly.
Other sentences shall remain the same. The bail bond of the appellant  shall
stand cancelled. She must surrender or  be  apprehended  to  serve  out  the
remaining sentence in accordance with law.
 

                       ...................................................J.
                                                               [M.Y. EQBAL]

                         .................................................J.
                                                        [SHIVA KIRTI SINGH]

New Delhi.
December 05,  2014.