Balit Ram vs State Of C.G
2021 Latest Caselaw 180 Chatt

                                          1


                                                                            NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR
                        Criminal Appeal No. 391 of 2002


Balit Ram, aged about 28 years S/o Vishnu Chouhan, R/o Village Amapal, P.S.
Raigarh, Distt. Raigarh(C.G.)


                                                                     ----Appellant
                                       Versus

The State of Chhattisgarh Through Police Station City Kotwali, Raigarh, Distt.
Raigarh(C.G.)

                                                                   ---- Respondent


For Appellant             :      Mrs. Indira Tripathi, Advocate.
For Respondent/State      :      Mr. H.S. Ahluwalia, Dy. A.G.


                 Hon'ble Shri Justice Arvind Singh Chandel

                               Judgment on Board


08/06/2021



    1. This appeal has been preferred under Section 374 (2) of Cr.P.C against

       the judgment dated 22/03/2002 passed in Sessions Trial No. 214/1997

       by learned 2nd Additional Sessions Judge, Raigarh, District-Raigarh

       (C.G.) whereby the Appellant has been convicted under Section 304(B)

       of the IPC and sentenced to undergo RI for 7 years and to pay fine of

       Rs. 500/-, with default stipulation.

    2. Facts

of the case are that the Appellant is the husband of deceased

Satyabhama, their marriage was solemnized 2-3 years prior to the date

of incident. On 28.09.1997 at around 10:30 AM at the bank of pond near

village Amapal, the deceased committed suicide by pouring kerosene oil

on her and set herself on fire. Immediately after the incident, the matter

was reported by Rohit Kumar Chouhan (PW-1) neighbor of the

Appellant. At the time of incident, the Appellant had gone for his work

and not present in the village. Inquest proceedings was conducted by the

Police vide (Ex.P-3). Postmortem of dead body was conducted by Dr.

Lokesh Padgi (PW-6) postmortem report is (Ex. P-6). It has been alleged

that after the marriage of the deceased, co-accused Janki Bai (Aunt

mother-in-law) and the Appellant treated cruelty with the deceased on

account of demand of dowry, due to which, she died in unnatural

circumstances within seven years of her marriage. During investigation,

a letter was also seized which was written by the Appellant to his

wife/deceased. Statement of the witnesses were recorded under Section

161 of the Cr.P.C. After completion of investigation, a charge-sheet has

been filed before Trial Court and the Trial Court has framed the charges.

The prosecution has examined as many as 7 prosecution witnesses. No

defence witness has been examined. Statement of the Appellant under

Section 313 of the Cr.P.C was recorded, wherein he has pleaded his

innocence and false implication in the matter. The Appellant has stated

that since the deceased was suffering from jaundice, due to which she

committed suicide.

3. After trial, the Trial Court has convicted and sentenced the Appellant as

mentioned in paragraph one of this judgment. Hence, this appeal.

4. Learned Counsel appearing for the Appellant submits that the Appellant

has been wrongly convicted by the trial Court without there being any

reliable evidence available on record. She further submits that the

essential ingredient of Section 304(B) of the Indian Penal Code, i.e.,

soon before her death the deceased was subjected to cruelty or

harassment on account of demand of dowry is completely missing.

Hence, it was claimed by Learned Counsel appearing for the Appellant

that the conviction of the Appellant is not sustainable. The Counsel

further submits that as defined in Section 107 of the IPC, there is also no

evidence available on record which can show that the Appellant

instigated or abated the deceased for committing suicide.

5. Per contra, learned Counsel appearing for the State supported the

impugned judgment and submits that the sentence awarded by the Trial

Court is just and proper and requires no interference.

6. I have heard learned Counsel appearing on behalf of the parties and

perused the available record minutely. I have also perused the

statements of the witnesses minutely.

7. It is not in dispute that death of Satyabhama occurred otherwise than

under normal circumstances within seven years of her marriage. Her

death took place due to burn.

8. Before appreciation of the evidence available on record, it is apt to

reproduce Section 304(B) of the Indian Penal Code, which deals with

dowry death and reads as follows:

"304B.Dowry death. --(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 purpose of this sub-section,

"dowry" shall have the 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. The legislature has also introduced Section113-B of the Evidence Act

alongside insertion of Section 304-B, IPC.

"113B. Presumption as to dowry death.--When

the question is whether a person has

committed the dowry death of a woman and it

is shown that soon before her death such

woman had been subjected by such person to

cruelty or harassment for, or in connection with

any demand for dowry, the Court shall presume

that such person had caused the dowry death.

Explanation.--For the purpose of this Section

"dowry death" shall have the same meaning as

in Section 304B of the Indian Penal Code (45 of

1860)."

10. The basic ingredients to attract the provisions of Section 304-B,

IPC, are as follows:-

"(1) That the death of the woman was

caused by any burns or bodily injury or in some

circumstances which were not normal;

(2) such death occurs within 7 years from

the date of her marriage;

(3) that the victim was subjected to cruelty

or harassment by her husband or any relative

of her husband;

(4) such cruelty or harassment should be

for or in connection with the demand of dowry;

and

(5) it is established that such cruelty and

harassment was made soon before her death."

11. In AIR 2008 SC 2377 (Narayanamurthy v. State of Karnataka), the

Supreme Court has observed thus:

18. In the case of unnatural death of a married woman as in a

case of this nature, the husband could be prosecuted

under Sections 302, 304-Band 306 of the Penal Code. The

distinction as regards commission of an offence under one

or the other provisions as mentioned herein before came

up for consideration before a Division Bench of this Court

in Satvir Singh v. State of Punjab, [(2001) 8 SCC 633]

wherein it was held : (SCC p.643, paras 21-22)

"21.Thus, there are three occasions related to

dowry. One is before the marriage, second is at

the time of marriage and the third is 'at any time'

after the marriage. The third occasion may

appear to be an unending period. But the

crucial words are 'in connection with the

marriage of the said parties'. This means that

giving or agreeing to give any property or

valuable security on any of the above three

stages should have been in connection with the

marriage of the parties. There can be many

other instances for payment of money or giving

property as between the spouses. For example,

some customary payments in connection with

birth of a child or other ceremonies are

prevalent in different societies. Such payments

are not enveloped within the ambit of

'dowry'.Hence the dowry mentioned in

Section304-B should be any property or

valuable security given or agreed to be given in

connection with the marriage.

22. It is not enough that harassment or

cruelty was caused to be woman with a demand

for dowry at some time, if Section 304-B is to be

invoked. But it should have happened 'soon

before her death'. The said phrase, no doubt, is

an elastic expression and can refer to a period

either immediately before her death or within a

few days or even a few weeks before it. But the

proximity to her death is the pivot indicated by

that expression. The legislative object in

providing such a radius of time by employing

the words 'soon before her death' is to

emphasis the idea that her death should, in all

probabilities, have been the aftermath of such

cruelty or harassment. In other words, there

should be a perceptible nexus between her

death and the dowry-related harassment or

cruelty inflicted on her. If the interval which

elapsed between the infliction of such

harassment or cruelty and her death is wide the

court would be in a position to gauge that in all

probabilities the harassment or cruelty would

not have been the immediate cause of her

death. It is hence for the court to decide, on the

facts and circumstances of each case, whether

the said interval in that particular case was

sufficient to snuff its cord from the concept 'soon

before her death'.

"19. In Hira Lal v. State (Govt. of NCT), Delhi,[(2003) 8 SCC

80], this Court observed that: (SCCpp. 86-87, para 9]

"The expression 'soon before her death' used in

the substantive S. 304-B, I.P.C. and S. 113-B of

the Evidence Act is present with the idea of

proximity test. No definite period has been

indicated and the expression 'soon before' is

not defined. A reference to express 'soon

before' used in S. 114, Illustration (a) of the

Evidence Act is relevant. It lays down that a

Court may presume that a man who is in the

possession of goods' soon after the theft, is

either the thief has received the goods knowing

them to be stolen, unless he can account for

his possession.' The determination of the

period which can come within the term 'soon

before' is left to be determined by the Courts,

depending upon facts and circumstances of

each case. Suffice, however, to indicate that

the expression 'soon before' would normally

imply that the interval should not be much

between the concerned cruelty or harassment

and the death in question. There must be

existence of approximate and live link between

the effect of cruelty based on dowry demand

and the concerned death. If alleged incident of

cruelty is remote in time and has become stale

enough not to disturb mental equilibrium of the

woman concerned, it would be of no

consequence."

12. In light of the above-quoted provision of law and observation of the

Supreme Court, I shall now examine the evidence available on record of

the instant case.

13. In this case, the prosecution has examined as many as seven

witnesses. Rohit Kumar Chouhan (PW-1), Bodhram (Kotwar)(PW-2) and

Bedaram (PW-3) respectively are the neighbors of the Appellant. In their

Court statements, they have not stated anything against the Appellant.

According to their statements, there was a cordial relationship between

the Appellant and the deceased. Dr. Lokesh Padgi is the witness who

conducted postmortem of dead body of the deceased, his postmortem

report is (Ex. P-6). H.C. Gotiya (PW-7) is the investigating officer who

investigated the entire case. According to this witness, during

investigation, he seized a letter written by the Appellant from the

possession of Nirmal (PW-4).

14. Nirmal (PW-4) is father of the deceased and Sukhlal (PW-5) is

brother of the deceased. According to the Court statement of Nirmal, he

stated that in the month of April, he along with his wife visited to house of

the Appellant, at that time they saw that the Appellant was beating their

daughter and Appellant told them to take their daughter back. Thereafter,

parents of the deceased took her back along with them. Later on, father-

in-law of the deceased took the deceased with him telling that the

Appellant would not cause any harm to her and after some days, an

unnatural death of the deceased occurred. In paragraph 2 of

examination in chief, this witness deposed that when the deceased came

back to her maternal home, she told them about the demand of

Television and Motorcycle by her husband and due to the said demand

her husband used to quarrel with her. Sukhlal (PW-5) brother of the

deceased also deposed that when his parents took his sister back to his

home, she told them about the demand of Motorcycle and Television by

her husband failing which her husband used to beat her. Relying upon

the evidence of Nirmal (PW-4) and Sukhlal (PW-5) and also relying the

contents of letter which has been seized from Nirmal (PW-4), it has been

held by the Trial Court that the Appellant harassed and treated cruelty

with the deceased on account of demand of dowry and the Trial Court

has convicted the Appellant for the offence punishable under Section

304(B) of the IPC.

15. It was the defence of the Appellant that his wife was suffering from

jaundice, due to which she committed suicide. In their cross examination

Nirmal (PW-4) and Sukhlal (PW-5) both have admitted the fact that prior

to death of the deceased, she was suffering from jaundice and her

treatment was going on. Nirmal (PW-4) and Sukhlal (PW-5) both have

admitted the fact that since 1 ½ years of marriage of the deceased, she

had never complaint anything against the Appellant. They have also

admitted the fact that when the deceased told them about the demand of

dowry, even then neither they have conducted any social meeting nor

reported in concerned Police Station. Nirmal (PW-4) has also admitted

the fact that in the house of the Appellant there was no electricity

connection. I have also gone through the contents of letter which has

been written by the Appellant to her wife wherein the Appellant admitted

the quarrel taken place between them and apologized for the same,

there are no contents appeared in the letter on account of demand of

dowry.

16. On minute examination of above evidence, it becomes clear that

after two years of marriage, the deceased committed suicide. Since 1 ½

years of marriage, she never complaint anything against the Appellant

and lived happily with him. In the month of April when Nirmal (PW-4) and

his wife visited to the house of the Appellant, then on first time they saw

the quarrel which was taken place between the Appellant and the

deceased. At that time also, the Appellant had not demanded any dowry

to the parents of the deceased, if any such demand of dowry had been

existed, the deceased would have complaint regarding such demand to

her parents at that time itself. From the admissions made by Nirmal (PW-

4) and Sukhlal (PW-5), it is clear that in the house of the Appellant, there

was no electricity connection. In this condition, any such demand of

Television by the Appellant seems to be unnatural. There is no any such

complaint made by the deceased regarding demand of dowry by her

husband. Neither any social meeting conducted nor any complaint

lodged by the deceased or her family members regarding cruelty or

harassment on account of demand of dowry by the husband of the

deceased. From the contents of letter which was written by the Appellant

to her wife it appears that a quarrel has taken place between them and

the Appellant apologized for the same to his wife, there was no contents

of dowry mentioned in the letter.

17. From the evidence available on record and in my considered

opinion, the prosecution has failed to prove that "soon before her death"

the deceased was subjected to cruelty or harassment by the Appellant in

connection with the demand of dowry. In these circumstances, the

Appellant is entitled to get benefit of doubt. Therefore, the conviction of

the Appellant is not sustainable. Thus, the impugned order dated

22/03/2002 passed in Sessions Trial No. 214/1997 by learned 2 nd

Additional Sessions Judge, Raigarh, District-Raigarh (C.G.) is set-aside.

18. Consequently, the Appeal is allowed. The Appellant is acquitted

from the charges framed against him on the basis of benefit of doubt.

19. Records of the Court below be sent back along with a copy of this

order forthwith for information and necessary compliance.

Sd/-

(Arvind Singh Chandel) Judge Shubham