Chattisgarh High Court

Kapil Barman And Ors vs State Of Chhattisgarh on 18 October, 2021

                                   1

                                                                   AFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

                          CRA No. 611 of 2015

   1. Kapil Barman, S/o Chhotku Barman, aged about 24 Years,

   2. Chhotku Barman, S/o Soupat Barman, aged about 58 Years,

   3. Smt. Sukhin Bai, W/o Chhotku Barman, aged about 55 Years,

     All are R/o Mohra, P.S. Seepat, District Bilaspur, Chhattisgarh.

                                                           ----Appellants

                                Versus

    State of Chhattisgarh, Through Incharge Station House Officer,
     P.S. Seepat, District Bilaspur, Chhattisgarh.

                                                         ---- Respondent

CRA No. 628 of 2015

 Chhatram Khare, S/o Sunder Lal, aged about 38 Years, R/o Village Janji, Police Station Seepat, Civil and Revenue District Bilaspur, Chhattisgarh.

---Appellant

Versus

 State of Chhattisgarh, Through Station House Officer, Police Station Seepat, District Bilaspur, Chhattisgarh.

---- Respondent

For Appellants Dr. Nirmal Shukla, Senior Advocate along with Ms. Rashika Soni, Advocate, Mr. Sourabh Sharma and Mr. Dharmesh Shrivastava, Advocates for the respective appellants.

For State Mr. Chitendra Singh, Panel Lawyer.

Hon'ble Shri Justice Gautam Chourdiya Judgment on Board

18/10/2021

1. Since both these appeals filed under Section 374(2) of Cr.P.C.

arise out of the judgment of conviction and order of sentence

dated 13.05.2015 passed by the Second Additional Sessions

Judge, Bilaspur, District Bilaspur, C.G. in Sessions Trial

No.72/2014, they are being disposed by this common judgment.

By the impugned judgment, the appellants are convicted and

sentenced as under:-


  CRA No.611 of 2015


             Conviction                      Sentence

    Appellant No.1 Kapil Barman

    Appellant    No.2     Chhotku
    Barman

    Appellant No.3 Smt. Sukhin
    Bai

    Under Section 304-B read with Rigorous Imprisonment          for
    34 of Indian Penal Code       seven years and fine            of
                                  Rs.1,000/-, in default          of
                                  payment of fine amount          to
                                  undergo additional R.I. for    six
                                  months.




    CRA No.628 of 2015


           Conviction                      Sentence

     Appellant- Chhatram Khare

Under Section 304-B of Indian Rigorous Imprisonment for Penal Code seven years and fine of Rs.1,000/-, in default of payment of fine amount to undergo additional R.I. for

six months.

2. As per the prosecution case, after the marriage of the appellant

Kapil Barman with Vinita Barman (deceased) in the year 2011,

she was being harassed and ill-treated by the appellants in

connection with demand of Rs.1 lakh, as a result of which she

committed suicide by hanging herself on 05.07.2013. On the

same day i.e. 05.07.2013, merg intimation (Ex.P-1) was lodged

by PW-1 Ramavtar before the police station. After merg inquiry,

on 07.10.2013, FIR (Ex.P-10) was registered against the

appellants under Sections 304-B read with 34 of IPC. During

investigation, inquest was performed over the dead body vide

Ex.P-3. Postmortem (Ex.P-12) on the body of the deceased was

conducted by PW-12 Dr. Rajendra Maravi who noticed no

external or internal injury except the ligature mark over the neck

which was antemortem in nature and opined that the cause of

death is asphyxia as a result of hanging. Spot maps were

prepared vide Exs. P-13 & P-14, certain articles were seized

Ex.P-4 and the statements of the witnesses were recorded.

3. After completion of usual investigation, charge-sheet was filed

against the appellants under Section 304-B read with 34 of IPC.

The trial Court framed charge under Section 304-B read with 34

of IPC, in the alternative Section 302 read with 34 of IPC against

the appellants, which was denied by them, they pleaded

innocence and prayed for trial.

4. So as to hold the accused persons guilty, the prosecution

examined as many as 19 witnesses i.e. PW-1 Ramavtar

Suryavasnhi, PW-2 Durga, Prasad, PW-3 Harishankar Pandey,

PW-4 Jay Uraon, PW-5 Ram Bai, PW-6 Ramesh Sharma, PW-7

Dharmendra Laxkar, PW-8 Kavita Banjare, PW-9 Uttara Bai, PW-

10 Lakhan Laxkar, PW-11 K.P.S Painkara, PW-12 Dr. Rajendra

Maravi, PW-13 Bedilal, PW-14 R.P. Vastrakar, PW-15 Pramod

Kumar Bhargav, PW-16 Arun Dubey, PW-17 Virendra

Shrivastava, PW-18 Dr. Rajendra Kumar and PW-19 Vijay

Pandey. Statements of the accused persons were also recorded

under Section 313 of Cr.P.C. in which they denied the

incriminating circumstances appearing against them in the

prosecution case, pleaded innocence and false implication.

However, no witness was examined by them in their defence.

5. The trial Court after hearing counsel for the respective parties

and considering the material available on record, by the

impugned judgment convicted and sentenced the appellants as

mentioned in para-1 of this judgment.

6. Learned counsel for the appellants submit as under:

 that there is nothing on record on the basis of which it could

be considered that Vinita Barman died in suspicious

condition. The evidence on record does not reveal cause of

death of the deceased. Therefore, it is not established that

the deceased committed suicide.

 that from the statement of the prosecution witnesses, it is

quite clear that there has never been any demand of dowry

on the part of the appellants from the deceased or her

family members at any point of time.

 that before the death of deceased, no report was made by

the parental members of deceased to the police regarding

cruelty or harassment by the appellants to the deceased

nor any social meeting was ever convened in this regard.

 that as regards the offence under Section 304B of IPC, the

basic ingredients for attracting this offence i.e. soon before

her death she was subjected to cruelty, is missing in this

case.

 that FIR was lodged after an inordinate delay of three

months and explanation given by the complainant party

regarding delay in lodging the FIR is not acceptable.

 that presumption as to dowry death would only get

activated upon the proof of the fact that the deceased was

subjected to cruelty or harassment for or in connection with

any demand of dowry by the accused and that too, in the

reasonable contiguity of death.

7. On the other hand, supporting the impugned judgment learned

counsel for the State submits that conviction of the

accused/appellants is strictly in accordance with law and there is

no illegality or infirmity in the same warranting interference by this

Court.

8. I have heard learned counsel for the parties and perused the

material available on record.

9. In the present case, the deceased Vinita Barman died on

05.07.2013 in her matrimonial house and her funeral was done in

presence of appellants and the parental family of the deceased

along with villagers. On the same day i.e. 05.07.2013 merg

intimation was lodged by PW-1 Ramavtar and thereafter on

07.10.2013, FIR (Ex.P-10) was registered alleging that after

marriage and prior to death of the deceased, the deceased was

being subjected to cruelty and harassment by the

accused/appellants for demand of rupees one lakh, as a result of

which she committed suicide by hanging herself. While funeral

rites were going on relatives of the deceased were also present,

but they had not raised any objection that the deceased died

unnatural death, regarding any demand of dowry and that she

was being subjected to cruelty and harassment by the

accused/appellants.

10. In this case, it is not in dispute that marriage of the deceased

Vinita Barman was solemnized with appellant Kapil Barman in the

year 2011 and she died in her matrimonial home on 05.07.2013

and this fact is proved by PW-7 Dharmendra, PW-8 Kavita Banjare

and PW-9 Uttara Bai. For bringing home offence under Section

304 of IPC, the following ingredients are required to be proved

beyond reasonable doubt:

(i) death of the woman concerned is by any burns of bodily injury or by any cause other than in normal circumstances and

(ii) is within seven years of her marriage and

(iii) that soon before her death, she was subjected to cruelty or

harassment by her husband or any relative of the husband for, or in connection with, any demand for dowry.

The offence under Section 498A of the Code is attracted

qua the husband or his relative if she is subjected to cruelty. The

explanation to this Section exposits "cruelty" as:

(i) any willful conduct which is of such a 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) or

(ii) harassment of the woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

11. So far as offence under Section 304B of IPC is concerned, the

first two ingredients i.e. death of the woman concerned by burn

injury or by any cause other than in normal circumstances within

seven years of her marriage have undoubtedly been proved by the

prosecution. However, now it is to be seen from the evidence on

record whether the third ingredients i.e. soon before her death, she

was subjected to cruelty or harassment by her husband or any

relative of the husband for, or in connection with, any demand for

dowry, has been proved by the prosecution or not.

12. Section 113B of the Evidence Act enjoins a statutory presumption

as to dowry death in the following terms:

"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 has 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)"

Noticeably this presumption as well is founded on the proof

of cruelty or harassment of the woman dead for or in connection

with any demand for dowry by the person charged with the

offence. The presumption as to dowry death thus would get

activated only upon the proof of the fact that the deceased lady

had been subjected to cruelty or harassment for or in connection

with any demand for dowry by the accused and that too in the

reasonable contiguity of death. Such a proof is thus the

legislatively mandated prerequisite to invoke the otherwise

statutorily ordained presumption of commission of the offence of

dowry death by the person charged therewith.

13. Keeping in view the above settled legal position, this Court

proceeds to appreciate the evidence, oral and documentary,

available on record.

14. In this case, appellants i.e. Kapil Barman (husband of the

deceased), Chhotku Barman (father-in-law of the deceased), Smt.

Sukhin Bai (mother-in-law of the deceased) and Chhatram Khare

(Nandoi of the deceased) were reported to have committed cruelty

against the deceased in connection with demand of dowry, thereby

compelling her to commit suicide.

15. The prosecution case is mainly based on the evidence of PW-7

Dharmendra Laxkar, PW-8 Kavita Banjare, PW-9 Uttara Bai &

PW-6 Ramesh Sharma.

16. PW-7 Dharmendra Laxkar is the brother of the deceased. He

stated in his deposition that marriage of her sister (deceased) was

solemnized with the appellant Kapil in the year 2011. He also

stated that in the year 2013 when his sister came to his marriage

she told her mother about the ill-treatment done by the appellants

in connection with demand of rupees one lakh. He stated that after

the funeral when he returned to his home, his mother told him

about the demand of dowry and ill-treatment done by the

appellants. He also stated in para 13 of his deposition that there is

no dowry system in his society and at the time of his sister's

marriage no demand of dowry was made by the appellants. He

stated that appellant Kapil and deceased were living happily and

peacefully and one child was born out of their wedlock and at that

time some gifts of Rs.30,000/- were given by them without any

demand. He stated that relations between the families were good.

17. PW-8 Kavita Banjare, friend of the deceased, has admitted in

para 5 of her deposition that after the marriage the deceased was

living happily and peacefully with the appellant Kapil Barman for

two years. PW-8 Kavita has not stated anything regarding demand

of rupees one lakh by the appellants specifically and only general

allegation regarding demand of rupees one lakh has been made

by her. No any specific date regarding demand of dowry or cruelty

has been stated by this witness. Likewise, PW-9 Uttara Bai,

mother of the deceased has also not made any specific allegation

regarding demand of dowry or cruelty by the appellants. In para 5

she states that the marriage of the appellant Kapil with the

deceased was solemnized peacefully. She has also made general

allegation of demand of rupees one lakh by appellant Kapil.

18. PW-6 Ramesh Sharma has admitted in para 10 of his deposition

whatever statement is being made by him before the Court, is at

the instance of PW-7 Dharmendra and he has no personal

knowledge about the incident.

19. As per the evidence of PW-12 Dr. Rajendra Maravi and PW-18

Dr. Rajesh Kumar, who conducted postmortem (Ex.P-12) on the

body of the deceased, no any external or internal injury was found

on the body of the deceased except the ligature mark around the

neck.

20. PW-1 Ramavtar Suryavanshi is the Panchayat Secretary. He

stated in his deposition that one Kamal Prasad informed him about

the incident on telephone then he immediately went to the spot

and saw the dead body of deceased. Thereafter, he along with

appellant Chhatram and other villagers went to the police station

Seepat and lodged the merg intimation Ex.P-1.

21. PW-2 Durga Prasad stated in his deposition that in his presence

police prepared inquest report Ex.P-3, seized the articles vide

Ex.P-4 and arrested the accused persons vide Exs. P-5, 6, 7 & 8.

22. PW-3 Harishankar Pandey, Head Constable, stated in his

deposition that on the basis of information given by PW-1

Ramavtar he lodged the merg intimation Ex.P-1.

23. PW-4 Ram Uraon is the Tehsildar. He stated in his deposition that

in presence of family members of the deceased he prepared

inquest Ex.P-3.

24. PW-5 Ram Bai, PW-10 Lakhan Laxkar & PW-13 Bedilal have

proved the notice Ex.P-2 and in their presence police prepared

inquest Ex.P-3.

25. PW-11 K.P.S. Painkara, Inspector, lodged the FIR Ex.P-10 and

duly proved the same. PW-14 R.P. Vastrakar, Patwari, prepared

the spot map Ex.P-13 and duly proved the same.

26. PW-17 Virendra Shrivastava, Inspector, prepared the spot map

Ex.P-14 and duly proved the same.

27. Looking to the evidence of PW-7 Dharmendra Laxkar, PW-8

Kavita Banjare and PW-9 Uttara Bai, family members of the

deceased, they are not saying about the deceased being

subjected to cruelty and harassment by the accused/appellants for

demand of dowry. Only general and omnibus allegations regarding

demand of dowry of rupees one lakh have been leveled by the

family members of the deceased. No specific date, time or place

has been mentioned by them in this regard. Prior to death of

deceased, they admit that no report was made by them to the

police against the accused persons regarding demand of dowry,

no notice was ever given to them and also no social meeting was

convened in this respect.

28. Though, in the instant case, the death of deceased Vinita Barman

admittedly took place within seven years of the marriage,

otherwise than under normal circumstances, i.e. by commission of

suicide by Vinita Barman, but there appears to be no reliable

evidence that the accused/appellants had subjected her to cruelty

or harassment in connection with demand for dowry or otherwise.

As per medical evidence, no any bodily injury internal or external

was noticed by the Doctors conducting postmortem except the

ligature mark around the neck. In these circumstances,

presumption under Section 113B of the Evidence Act cannot be

invoked as there is nothing on record to show that soon before her

death the deceased was subjected to cruelty/harassment in

connection with demand of dowry. The evidence adduced on

behalf of the prosecution is not sufficient for drawing inference that

the appellants have committed torture and cruelty upon the

deceased in connection with demand of rupees one lakh as dowry.

This apart, no any allegation was made against the appellants by

the family members of the deceased during the course of inquest

and admittedly the report was lodged after 20 days of the incident.

Though the manner in which the incident occurred raises suspicion

against the appellants but it is a well settled principle of law that

graver the offence is, higher is the degree of proof and the

suspicion howsoever strong, cannot take the place of proof. In this

case the prosecution has failed to prove guilt of the appellants

beyond all reasonable doubt and being so, the benefit of doubt has

to be credited to the appellants, thereby entitling them of acquittal

of the charge.

29. In the matter of Baijnath and Others vs. State of Madhya

Pradesh, (2017) 1 SCC 101, the Hon'ble Supreme Court held

that:

"Mere factum of unnatural death in matrimonial home within seven years of marriage not sufficient to convict accused under Ss. 304-B and 498-A and only when prosecution proves beyond doubt that deceased was subjected to cruelty/harassment in connection with dowry demand soon before her death, presumption under S. 113-B can be invoked. In the cited case, the prosecution failed to prove beyond reasonable doubt cruelty or harassment meted out to deceased for dowry demand soon before her death. Alleged demand centred around motorcycle which admittedly did not surface at time of finalisation of marriage, and which demand allegedly lingered on for about two years but no complaint in respect thereof was made to anyone. On the contrary, testimonies of DWs were consistent to the effect that no demand as imputed was ever made nor was there any quarrel over the issue, which was also corroborated by PWs 3 and 7. Besides, benefit in deficiency of proof as to precise cause of death i.e. whether it was homicidal/suicidal, and origin and cause of external injuries would enure to benefit of accused. Prosecution failed to prove crucial ingredient of cruelty and harassment by direct and cogent evidence thereby disentitling itself to benefit of statutory presumption under S. 113-B. In this view of the matter, the impugned judgment convicting the appellants was set aside".

30. So far as abetment of suicide is concerned, in Ramesh Kumar

vs. State of Chhattisgarh, (2001) 9 SCC 618, it has been

observed by the Supreme Court as under:

"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A

word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.

21.In State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73, this Court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. It is transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."

31. In the present case, during the period from 2011 to 2013, no

allegation was made against the appellants regarding demand of

rupees one lakh by any of the family members of the deceased.

No any specific allegation as to the nature of cruelty being mental

or physical caused to the deceased was made during the said

period. There is no specific date and time has been mentioned by

the witnesses regarding demand of dowry or cruelty by the

appellants to the deceased. During the life time of the deceased,

no social meeting was ever convened nor any report/complaint

was made by the deceased or her family members to the police.

Even after the death of the deceased no prompt report was made

to the police against the appellants. This apart, the conduct of the