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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 1431 OF 2007
VIPIN JAISWAL(A-I) Appellant (s)
VERSUS
STATE OF A.P. REP.BY PUB.PROSECUTOR Respondent(s)
JUDGMENT
A.K. PATNAIK, J.
This is an appeal against the judgment dated 11th
December, 2006 of the Andhra Pradesh High Court in
Criminal Appeal No. 544 of 2003.
2. The facts briefly are that an FIR was lodged
by Gynaneshwar Jaiswal on 4.4.1999 at 2.15 p.m. in
Mangalhat Police Station, Hyderabad. In the FIR it was
stated by the informant that his daughter Meenakshi
Jaiswal was married to the appellant on 22.2.1996 and
at the time of marriage he gave sufficient goldPage 2
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jewellery, silver items, furniture, electrophinic
gadgets etc., worth above Rs.2,50,000/- but ever since
her marriage, she was subjected to physical and mental
torture by her husband Vipin Jaiswal, her husband's
parents Prem Kumar Jaiswal and Yashoda Bai and her
husband's sister Supriya and her husband and they all
brutally assaulted her on innumerable occasions for not
getting sufficient dowry. It was further stated in the
FIR that on 2.4.1999 the informant received a call from
the appellant and he went to the house of the appellant
along with his relatives to find out what had happened
as well as to give invitation for a function at his
place but they all abused him and the appellant
physically assaulted and pushed him out from the house
but fearing the safety of his daughter and her welfare,
he did not report the matter to the police. It is
further stated in the FIR that on 4.4.1999 at about
1.00 p.m. when he came back home, he was informed on
telephone by his son that Meenakshi had received severe
burn injuries and as a result died in the house of the
appellant. The police registered a Criminal Case under
Section 304B, IPC and took up investigation and
submitted a charge-sheet against the appellant and his
other relatives under Sections 304B and 498A, IPC.Page 3
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3. At the trial, besides other witnesses, the
prosecution examined the father of the deceased
(informant) as PW 1, the cousin of PW 1 as PW 2 and the
mother of the deceased as PW 4. The appellant
volunteered to be a witness and got examined himself as
DW 1 and took the defence that the deceased had left
behind a suicide note written by her one day before her
death in which she has stated that she had committed
suicide not on account of any harassment by the
appellant and her family members but due to the
harassment by her own parents. The Trial Court,
however, disbelieved the defence and convicted the
appellant and his other relatives under Sections 304B
and 498A, IPC. The Trial Court in particular held that
there was material that two days prior to the death of
the deceased, her father (PW1) and his relative (PW2)
were called by her and told that she has been harassed
by the appellant and her in laws for not being paid the
amount demanded by the appellant and when PWs 1 and 2
went to the house of the appellant, they were abused by
the appellant and on 4.4.1999, PW 1 and others were
informed by one Suresh Kumar, a neighbour of the
appellant, about the incident. From the aforesaid and
other evidence, the Trial Court came to the conclusion
that the deceased was subjected to torture andPage 4
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harassment by the accused, mainly for the reason that
an amount of Rs.50,000/- was not given to the appellant
by PW 1. The appellant and other relatives of the
appellant carried Criminal Appeal No. 544 of 2003
before the High Court and by the impugned judgment, the
High Court acquitted the two other relatives of the
appellant (A2 and A3) but maintained the conviction of
the appellant under Sections 304B and 498A, IPC.
4. At the hearing before us, learned senior
counsel for the appellant submitted that the findings
of the Trial Court and of the High Court with regard to
the demand of dowry are in relation to the demand of
Rs.50,000/-. He submitted that this demand of
Rs.50,000/- is not mentioned in the FIR (Ext. P1). He
further submitted that in any case, the evidence of PW1
and PW4 is clear that this demand of Rs.50,000/- by the
appellant was not a dowry demand but an amount which
the appellant wanted from the family of the deceased to
purchase a computer and set up his own business. He
further submitted that the Trial Court and the High
Court ought not to have disbelieved the suicide note
(Ext. D19) which was in the handwriting of the deceased
as proved by DW1. In this context, he explained that
the signature on the suicide note (Ext. D19) purportingPage 5
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to be that of the deceased, tallied with the signature
of the deceased in Ext. D1 which was a hall ticket
issued by Dr. B.R. Ambedkar Open University for an
examination which the deceased took in March, 1998.
5. Learned counsel for the State, on the other
hand, submitted that both the Trial Court and the High
Court have discussed the evidence of the prosecution
witnesses, and in particular, the evidence of PWs 1, 2
and 4 to establish that there was demand of dowry of
not only Rs.50,000/- but other items as well. He
further submitted that Section 2 of the Dowry
Prohibition Act, 1961 defines 'dowry' as any property
or valuable security given or agreed to be given either
directly or indirectly at or before or any time after
the marriage in connection with the marriage of the
parties to the marriage. He submitted that the
expression “in connection with the marriage of the
parties to the marriage” is wide enough to cover the
demand of Rs.50,000/- made by the appellant for
purchase of a computer. He further submitted that so
far as the suicide note (Ext. D19) is concerned, the
same cannot be believed to have been written by the
deceased who was only a matriculate and the High Court
has given good reasons in the impugned judgment why thePage 6
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suicide note cannot be believed to have been written
by the deceased. He argued that in any case only on the
basis of the evidence given by DW1, the Court cannot
hold that the suicide note had been written by
the deceased and not by someone else. He submitted that
since the prosecution has been able to prove that the
deceased had been subjected to not only a demand
of dowry but also cruelty soon before her death,
the Trial Court and the High Court have rightly
held the appellant guilty both under Sections 304B and
498A, IPC.
6. We have perused the evidence of PW 1 and
PW 4, the father and mother of the deceased
respectively. We find that PW 1 has stated that at the
time of marriage, gold, silver articles, ornaments,
T.V., fridge and several other household articles worth
more than Rs.2,50,000/- were given to the appellant and
after the marriage, the deceased joined the appellant
in his house at Kagaziguda. He has, thereafter, stated
that the appellant used to work in a xerox cum type
institute in Nampally and in the sixth month after
marriage, the deceased came to their house and told
them that the appellant asked her to bring Rs.50,000/-
from them as he was intending to purchase a computerPage 7
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and set up his own business. Similarly, PW4 has stated
in her evidence that five months after the marriage,
the appellant sent her away to their house and when she
questioned her, she told that the appellant was
demanding Rs.50,000/- and that the demand for money is
to purchase a computer to start his own business. Thus,
the evidence of PW1 and PW4 is that the demand of
Rs.50,000/- by the appellant was made six months after
the marriage and that too for purchasing a computer to
start his own business. It is only with regard to this
demand of Rs.50,000/- that the Trial Court has recorded
a finding of guilt against the appellant for the
offence under Section 304B, IPC and it is only in
relation to this demand of Rs.50,000/- for purchase of
a computer to start a business made by the appellant
six months after the marriage that the High Court has
also confirmed the findings of the Trial Court with
regard to guilt of the appellant under Section 304B,
IPC. In our view, both the Trial Court and the High
Court failed to appreciate that the demand, if at all
made by the appellant on the deceased for purchasing a
computer to start a business six months after the
marriage, was not in connection with the marriage and
was not really a 'dowry demand' within the meaning of
Section 2 of the Dowry Prohibition Act, 1961. ThisPage 8
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Court has held in Appasaheb & Anr. Vs. State of
Maharashtra (2007) 9 SCC 721:
“In view of the aforesaid definition of
the word "dowry" any property or valuable
security should be given or agreed to be
given either directly or indirectly at or
before or any time after the marriage and in
connection with the marriage of the said
parties. Therefore, the giving or taking of
property or valuable security must have some
connection with the marriage of the parties
and a correlation between the giving or
taking of property or valuable security with
the marriage of the parties is essential.
Being a penal provision it has to be strictly
construed. Dowry is a fairly well known
social custom or practice in India. It is
well settled principle of interpretation of
Statute that if the Act is passed with
reference to a particular trade, business or
transaction and words are used which
everybody conversant with that trade,
business or transaction knows or understands
to have a particular meaning in it, then the
words are to be construed as having that
particular meaning. (See Union of India v.
Garware Nylons Ltd., AIR (1996) SC 3509 and
Chemicals and Fibres of India v. Union of
India, AIR (1997) SC 558).”
7. In any case, to hold an accused guilty of
both the offences under Sections 304B and 498A, IPC,
the prosecution is required to prove beyond reasonable
doubt that the deceased was subjected to cruelty or
harassment by the accused. From the evidence of the
prosecution witnesses, and in particular PW1 and PW4,
we find that they have made general allegations of
harassment by the appellant towards the deceased and
have not brought in evidence any specific acts ofPage 9
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cruelty or harassment by the appellant on the deceased.
On the other hand, DW1 in his evidence has stated that
on 4.4.1999, the day when the incident occurred, he
went to the nearby temple along with his mother (A2)
and his father (A3) went to the bazar to bring ration
and his wife (deceased) alone was present at the house
and at about 1.00 p.m., they were informed by somebody
that some smoke was coming out from their house and
their house was burning. Immediately he and his mother
rushed to their house and by that time there was a huge
gathering at the house and the police was also present.
He and his family members were arrested by the police
and after one month they were released on bail.
What
DW1 has further stated is relevant for the purpose of
his defence and is quoted hereinbelow:
“While cleaning our house we found a
chit on our dressing table. The said chit was
written by my wife and it is in her
handwriting and it also contains her
signature. Ex. D 19 is the said chit. I
identified the handwriting of my wife in Ex.
D19 because my wife used to write chits for
purchasing of monthly provisions as such on
tallying the said chit and Ex. D19 I came to
know that it was written by my wife only.
Immediately I took the Ex. D19 to the P.S.
Mangalhat and asked them to receive but they
refused to take the same.”
From the aforesaid evidence, it is clear that while
cleaning the house the appellant came across a chit
written in the handwriting of his wife and containing
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her signature. This chit has been marked as Ext. D19
and the appellant has identified the handwriting and
signature of the deceased in Ext. D19 which is written
in Hindi. The English translation of Ext.D19
reproduced in the impugned judgment of the High Court
is extracted hereinbelow:
“I, Meenakshi W/o Vipin Kumar, do hereby
execute and commit to writing this in my
sound mind, consciousness and senses and with
my free will and violation to the effect that
nobody is responsible for my death. My
parents family members have harassed much to
my husband. I am taking this step as I have
fed up with his life. Due to me the quarrels
are taking place here, as such I want to end
my life and I beg to pardon by all.”
It appears from Ext. D19 that the deceased has written
the chit according to her free will saying that nobody
was responsible for her death and that her parents and
family members have harassed her husband and she was
taking the step as she was fed up with her life and
because of her quarrels were taking place.
8. When the appellant, who is the husband of the
deceased, has said in his evidence as DW1 that the
aforesaid chit (Ext. D19) has been written by the
deceased herself and has been signed by her and it
also appears from his evidence quoted above that he
was acquainted with her handwriting and signature,
the
Trial Court and the High Court could have recorded a
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finding one way or the other by comparing her
handwriting and signature with some of her other
handwritings and signatures under Section 73 of the
Evidence Act.
In the alternative, the Trial Court and
the High Court could have sought for an expert's
opinion under Section 45 of the Evidence Act on
whether the handwriting and signature were that of the
deceased. But unfortunately, neither the Trial Court
nor the High Court have resorted to these provisions
of the Evidence Act and instead by their own imaginary
reasoning disbelieved the defence of the appellant
that Ext.D19 could not have been written by the
deceased.
9. In our considered opinion, the evidence of
DW1 (the appellant) and Ext.D19 cast a reasonable
doubt on the prosecution story that the deceased was
subjected to harassment or cruelty in connection with
demand of dowry. In our view, onus was on the
prosecution to prove beyond reasonable doubt the
ingredient of Section 498A, IPC and the essential
ingredient of offence under Section 498A is that the
accused, as the husband of the deceased, has subjected
her to cruelty as defined in the Explanation to
Section 498A, IPC. Similarly, for the Court to draw
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the presumption under Section 113B of the Evidence Act
that the appellant had caused dowry death as defined
in Section 304B, IPC, the prosecution has to prove
besides the demand of dowry, harassment or cruelty
caused by the accused to the deceased soon before her
death. Since the prosecution has not been able to
prove beyond reasonable doubt this ingredient of
harassment or cruelty, neither of the offences under
Sections 498A and 304B, IPC has been made out by the
prosecution.
10. We accordingly allow this appeal, set aside
the impugned judgment of the High Court and that of
the Trial Court and direct that the bail bond
furnished by the appellant shall stand discharged.
............................J.
(A.K. PATNAIK)
............................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
MARCH 13, 2013
