Tuesday, 10 September 2019

What is distinction between 304-B (Dowry death) and 498-A IPC?

There is a succinct distinction between the offences under Section
304-B and 498-A IPC. For an offence being brought within the purview
of dowry death, it is imperative on part of the prosecution to establish
that the death of the woman is caused within seven years of her marriage
and only when it is established that before her death she was subjected to
harassment or cruelty by her husband or any relative for or in connection
with the demand for dowry. However, in case of Section 498-A IPC, the
husband or the relative of the husband who subject a woman to cruelty
are liable for punishment and the meaning of the term ‘cruelty’ is set out
in clauses (a) and (b) to Explanation appended to the said section, which
contemplate to mutually exclusive contingencies. Thus, Section 498-A
and Section 304-B IPC make out two distinct offences. The cruelty
defined in Explanation to Section 498-A IPC may be the same which is
contemplated under Section 304-B IPC. However, under Section 498-A
IPC cruelty itself is made punishable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.503 OF 2002

Mandakini Balasaheb Kalbhor  Vs. The State of Maharashtra 

CORAM : PRADEEP NANDRAJOG, C.J. &
SMT. BHARATI DANGRE, J.

PRONOUNCED ON : 4th SEPTEMBER, 2019.
JUDGMENT:- [Per: Smt. Bharati Dangre, J.]

“There is pain in being a woman, yes but there is pride in it too.”
…. Marry Pauline Lowry.
The deceased Vaishali suffered the pain but did not survive to
experience the pride of being a woman - a creator, born to create and
before this, she exited the world by extinguishing the flame of her life.
2. The important milestone in the life of Vaishali was attained on 08th
May, 1998 when she got married to Dinesh (A-1) and like any other
plebeian girl, she stepped into the relationship ready to offer love and
companionship to Dinesh and in turn expecting the same in return
coupled with a fair treatment as wife, acceptance and belonging to the
family in which she was married, and hoping of a heavenly abode with
her husband and in laws.

This young girl who had dreamed of a happy life and who was on
her family way put an end to her life by consuming Dunet methanol in
form of an insecticide on 04th November, 1998 and she succumbed to the
same on 11th November, 1998.
3. PW-1 Dada Saheb (father of the deceased) lodged a complaint on
the very same day on the basis of which, the FIR came to be registered. In
the said complaint, he alleged that his daughter on her visit to her
parental house, had complained about the cruel treatment inflicted on her
by her mother-in-law – Mandakini (A-3), her sister-in-law Rupali (A-4)
and Dinesh (A-1). The complainant stated that his daughter had
informed that she was subjected to harassment by her mother-in-law on
account of the fact that she intended to marry her son to a girl from her
parental side and in turn wanted her daughter Rupali to be married into
her maternal family but on account of the marriage of the deceased with
her son Dinesh, the relationship contemplated was not fructified. He
also specifically stated that their daughter had informed them that her
mother-in-law had raised a demand of 2 lakhs ₹ and on account of such
demand Vaishali was subjected to cruelty both physical and mental, at the
hands of all the Accused persons. The complainant also proceeded to
state that in the harassment meted out, A-5 who is a maternal uncle of A-
1 also joined hands.
On being informed of such a harassment, the complainant himself
had approached the in-laws of Vaishali and urged before them that he had
already spent an amount of ₹ 12 lakhs on marriage and had also given a

Maruti car at the time of marriage and he made an earnest request to treat
Vaishali as their daughter as she was the only daughter of the
complainant. Reference is then made to the incident of Diwali when
Vaishali visited their house and she informed that after the visit of the
complainant, she was subjected to aggressive harassment by the accused
persons. The complaint also then makes a reference to a narration of
Vijay (PW-8) who had visited Vaishali. On 04th November, 1998, the
Complainant and his family members were informed that Vaishali was
admitted in Pooja Hospital, Hadpasar and when the complainant and the
near relations of the deceased visited the hospital, she was found in an
unconscious condition and on enquiry from A-1 Dinesh - the husband,
he had informed that Vaishali had a verbal altercation with his mother
and sister Rupali on the earlier night and as a consequence of the said
fight, she had consumed the insecticide. Based on this information, FIR
was registered under Section 498-A, 304B and 306 IPC.
4. The deceased who succumbed to the poisonous substance on 11th
November, 1998 was examined initially by Dr. Dilip Mane (PW-3) when
she was brought to the hospital at around 5.25 A.M. on 4th November,
1998. After recording the history of consumption of poison and on
noting that Vaishali was in a critical condition having suffered a cardiac
arrest, respiratory gasps, she was advised to be referred to a more well
equipped hospital with necessary facilities as she required an urgent
indoor tracheal intubation. Vaishali was then attended to by Dr. Makrand
Joshi (PW-7) in the Rubi Hall Clinic where she was admitted in ICU. She

was given treatment of intubation and while she was undergoing the
treatment on 11th November, 1998, at 8.00 A.M. she breathed her last.
The postmortem of the dead body was carried out by Dr. Prashant Patil
(PW-10) who reserved his opinion awaiting the report of the chemical
analyzer. On receipt of the said report, he opined that the death of the
deceased was due to methanol poisoning.
5. On completion of investigation, Prabhakar Jadhav (PW-11) filed a
charge-sheet by adding Section 302 IPC in the light of the response
received by him from the medical officer vide Ex-61 in which PW-10 had
mentioned about the injuries on the body of the deceased.
6. The matter was committed to the Additional Sessions Judge, Pune,
who framed the charges against the accused persons under Section 498A
read with Section 34 IPC and he also framed a charge under Section 302
read with Section 34 IPC, in the alternative, a charge under Section 306
and Section 304B IPC. All the accused persons pleaded not guilty and,
therefore, came to be tried in the Court of Sessions Judge, Pune in
Sessions Case No.78 of 1999.
7. To establish the charge under Section 498A and 304B IPC, the
prosecution examined the mother (PW-4), brother (PW-8) and a friend of
the deceased viz. Vandana (PW-6) apart from the complainant who was
examined as PW-1. All the aforesaid witnesses deposed in sync to
establish the offence punishable under Section 498A IPC as well as the
offence punishable under Section 306 IPC.

8. With the assistance of learned counsel for the Accused Mr. Sanjiv
Kadam and learned A.P.P., we have perused the evidence adduced before
the Sessions Court. The distillate of the deposition of the witnesses
supporting the prosecution case established that after the marriage of the
deceased was solemnized with A-1, within a period of six months, the
deceased committed suicide and the aforesaid prosecution witnesses had
narrated in great detail, the ordeal undergone by the deceased. The web
of the allegations was woven around the harassment to which the
deceased was subjected to. All the prosecution witnesses in detail set out
that the deceased Vaishali was treated with indifference and suffered
harassment on account of demand of dowry. The harassment was in the
form of taunts and her unacceptability in the house. It also speaks of the
deceased being ridiculed by the mother-in-law and her behaviour was
reiterated by the other members of the family including the husband of
the deceased. The parents of Vaishali tried to pacify the in-laws and also
asked her to ‘wait’ in the hope that things will go fine one day and it was
too early to complain things in a typical Indian scenario. The expectation
of the parents was that she needs to be settled in the house of her in-laws
and the everyday quarrels were part and parcel of her marital life, which
would cease one day. The mother of the deceased (PW-4) had deposed
that Vaishali used to keep silent and she was unhappy. The close friend –
Vandana (PW-6) also deposed about the ill-treatment at the hands of her
husband and parents-in-law and particularly the fact that it had
aggravated since the time when PW-1 had sought to intervene.

The deceased who was unhappy on account of the harassment
could see no hope and she took the desperate step to escape the
unbearable suffering and pain which she was subjected to in an attempt
not to put an end to her life but to end the traumatic ordeal which she
had to undergo within a short span of her marriage life. She was full of
pessimism and inspite of the fact that she had narrated her woes to her
parents, she was persuaded to live with the family and she continued to
suffer the darkest moments of her life overshadowing the joyous and the
good moments which she was looking forward as a newly wedded young
girl and all her aspirations and dreams were shattered. A sense of
hopelessness and deep feeling of helplessness encircled Vaishali and she
could see no solution to the problems faced by her and the only viable
option left to her was to end the miseries and that is how she took a bold
decision to inflict violence on herself and destroy the ray of hope in her
life by ending it.
9. The prosecution through cogent and reliable evidence brought
before the Court in the most natural way through the near and dear ones
of Vaishali was successful in establishing the willful conduct of the
Accused persons and it relied upon the conduct which is of such nature
and magnitude which drove Vaishali to commit suicide. Section 498-A
came to be inserted to suitably deal not only with the cases of dowry
death but also cases of cruelty to married woman by her in-laws. The
raison d’etre of Section 498A being to prevent the torture being inflicted
on a married woman by her husband or his relations and it is not

restricted to only in relation to the demands of dowry but it also intended
to deal with cruelty inflicted upon a woman in the form of a willful
conduct which is of such nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health, whether
mental or physical. Such willful act or conduct is necessarily to be the
proximate cause in order to bring home the charge under Section 498-A
IPC.
10. Relying on the evidence brought on record by the prosecution, the
Additional Sessions Judge acquitted all the accused of the offences
punishable under Sections 302 and 304-B IPC. Accused No.3 –
Mandakini is convicted for the offence punishable under Section 498-A
and for the offence punishable under Section 306 IPC and have been
sentenced to suffer rigorous imprisonment for one year for conviction
under the former and rigorous imprisonment for three years on being
convicted under Section 306 IPC and to pay fine of ₹ 5,000/-, in default
of payment of fine, to suffer further rigorous imprisonment for six
months. Accused - Dinesh, Balasaheb, Rupali and Vilas are acquitted of
offences punishable under Sections 306 and 498-A read with Section 34
IPC.
11. We have perused the judgment of the trial court and note that the
Sessions Judge has grossly erred in not considering the evidence brought
on record as against A-1 Dinesh, husband of the deceased, who was also
party to the ill-treatment inflicted to the deceased. The prosecution
witnesses have consistently maintained the stand that the deceased was

subjected to harassment at the hands of her mother-in-law and her
husband – Dinesh (A-1) and she was subjected to physical and mental
cruelty at the hands of Accused persons. The narration of harassment is
consistent in the testimony of all the prosecution witnesses and though
the Accused persons have been acquitted under Section 304-B IPC,
which sets out as to when a death of a woman would amount to “dowry
death”. There is a succinct distinction between the offences under Section
304-B and 498-A IPC. For an offence being brought within the purview
of dowry death, it is imperative on part of the prosecution to establish
that the death of the woman is caused within seven years of her marriage
and only when it is established that before her death she was subjected to
harassment or cruelty by her husband or any relative for or in connection
with the demand for dowry. However, in case of Section 498-A IPC, the
husband or the relative of the husband who subject a woman to cruelty
are liable for punishment and the meaning of the term ‘cruelty’ is set out
in clauses (a) and (b) to Explanation appended to the said section, which
contemplate to mutually exclusive contingencies. Thus, Section 498-A
and Section 304-B IPC make out two distinct offences. The cruelty
defined in Explanation to Section 498-A IPC may be the same which is
contemplated under Section 304-B IPC. However, under Section 498-A
IPC cruelty itself is made punishable. The fact that the learned Sessions
Judge has acquitted the Accused of the offences punishable under Section
304-B IPC do not necessarily entail the consequence of Section 498-A
IPC being not established. Since the prosecution has brought on record
the cogent and reliable evidence which attribute a specific role to A-1

Dinesh, who was also party to the ill-treatment and in fact he was the
person who could have prevented Vaishali being subjected to cruelty at
the hands of his mother. PW-1 father, PW-4 mother, PW-8 brother and
PW-6 friend of the deceased have, in unequivocal terms, deposed that
Vaishali had categorically stated that she was subjected to harassment at
the hands of her husband, who also joined in the choir. She was being
abused, ill-treated and on her fortnightly visits to her paternal house she
tried to vent her suffering but she was persuaded by her parents to bear
the same. The evidence unerringly establishes the enormity of
callousness inflicted and silently borne by Vaishali and it gave birth to a
conviction that there is no sunlight, pasturage or meadow to be found in
her life. The negative thoughts propelled by the brutality and bestiality
inflicted by the mother-in-law and the silence of the husband and his
participation along with the mother-in-law subjecting her to physical and
mental torture and the risk of certainty of grave injury and danger to her
life, limb and health, battered Vaishali and she chose to take the extreme
step.
12. The husband, the only son to whom Vaishali was married played a
positive role in the harassment of Vaishali which drove her to commit
suicide and this willful conduct of the husband has escaped the attention
of learned Sessions Judge, who has acquitted him of the offence
punishable under Section 498-A IPC. The offence punishable under
Section 498-A IPC is not only attracted when there is harassment with a
view to coerce a woman to meet an unlawful demand of any property or

valuable security but it also gets attracted when the willful conduct of any
person is likely to drive the woman to commit suicide or to cause grave
injury or danger to her life, limb and health whether physical or mental.
A young life is lost and the parents of the deceased Vaishali are made to
muse over their actions and repent for persuading Vaishali to return to
her matrimonial home and asking her to be patient. The object of
introducing stringent provision in the IPC in the form of Section 498-A
being to deal with such willful conduct, which led to the death of Vaishali,
according to us, should not escape the clutches of law and according to us,
such conduct as also the persons who inflict such conduct actuating a
young married women to end her life, needs to be penalised particularly
when the evidence brought on record establish such a conduct. The
legislature has by amending the penal code and Evidence Act made penal
law more strident for dealing with and punishing offences against married
woman and such law need not only act as a deterrent but must also
punish those guilty of such acts and conduct.
13. We are informed by Mr. Kadam that A-2 Mandakini who was
sentenced to three years imprisonment for the offence punishable under
Section 306 IPC and for one year for the offence punishable under
Section 498-A IPC, was incarcerated only for five days.
14. For the reasons recorded above, we uphold the conviction and
sentence imposed on Accused No.2 - Mandakini and resultantly dismiss
Criminal Appeal No.503 of 2002. We also dismiss the appeal being

Appeal No.882 of 2002 filed by the State seeking enhancement of
sentence imposed on Mandakini. Being satisfied that Accused No.1
Dinesh, the husband, who was erroneously acquitted by the trial court of
the offence punishable under Section 498-A IPC and for the reasons
which we have recorded above, we issue notice to Accused No.1 - Dinesh
for affording him an opportunity of hearing on sentence and direct listing
of appeal on Friday i.e. on 05th September, 2019.
(SMT. BHARATI DANGRE, J.) (CHIEF JUSTICE)

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