Jaiprakash Sahu And Anr vs State Of Chhattisgarh
2022 Latest Caselaw 7452 Chatt

                                      1
                                                             Cr.A. No. 147 of 2012


                                                                         NAFR
                 HIGH COURT OF CHHATTISGARH, BILASPUR
                          Criminal Appeal No. 147 of 2012
                         Judgment reserved on : 07/12/2022
                         Judgment delivered on : 12/12/2022

     1. Jaiprakash Sahu S/o Bhandari Ram Sahu, aged 22 years,
     2. Bhandari Ram Sahu S/o (late) Bechuram Sahu, aged about 50
        years
        Both Appellants No. 1 and 2 R/o Village Dabripara, Police Station
        Patna District Koriya (C.G.)

                                                              ---- Appellants
                                   Versus
      State of Chhattisgarh Through District Magistrate, District, Koriya
       (C.G.)
                                                        ---- Respondent

For Appellants : Mr. Mahendra Dubey, Advocate

For Respondent : Mr. Sudeep Verma, Dy. Govt. Advocate

Division Bench:

Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Rakesh Mohan Pandey C.A.V. Judgment

Per Rakesh Mohan Pandey. J.

1. This Criminal Appeal under Section 374(2) of the Cr.P.C. has been

filed against the impugned judgment of conviction and order of

sentence dated 06.01.2012 passed in Sessions Trial No. 25/2010

by the learned Ist Additional Sessions Judge, Manendragarh,

Baikunthpur, District Koriya (C.G.) whereby the learned trial court

has convicted appellant No. 1 & 2 herein for the offence punishable

under Section 304-B and 498-A of the I.P.C. and sentenced each of

them under Section 304-B to undergo rigorous imprisonment for life,

Cr.A. No. 147 of 2012

whereas no separate sentence has been awarded under Section

498-A of the I.P.C.

2. In Sessions Trial No. 25/2010, there were three accused persons

including appellants herein. During the pendency of the trial,

accused No.3 namely Kailashiya Bai @ Kailash, who was mother-

in-law of deceased - Devwati and wife of appellant No. 2, expired

and thus, her name was deleted.

3. As per the prosecution story, marriage of appellant No.1 Jaiprakash

Sahu and Devwati (deceased) was solemnized about 4 years prior

to date of incident and there is one issue out of their wedlock.

Appellant No.2 Bhandari Ram Sahu is father-in-law of the

deceased. On 16.10.2008, deceased Devwati consumed oleander

seeds and when she fell ill, she was taken to clinic of Doctor

Sharma where during treatment she died. Viscera of the deceased

was sent for FSL, Raipur vide Ex.-P/15, wherein glycosides poison

was found vide FSL report Ex.-P/17.

4. During investigation, it was found that there was demand of

Rs.50,000/- in cash and one motorcycle and on that account, the

deceased was being ill-treated by the appellants. It has come in the

investigation that due to ill-treatment, the deceased used to visit her

parental house frequently. Shriram (PW-1) lodged merg intimation

on 16.10.2008 vide Ex.-P/1. Inquest was conducted in presence of

panchas by Naib Tehsildar vide Ex.-P/4. Dead body of the

deceased was sent for postmortem and postmortem examination

was conducted by Dr. S.K. Gupta (PW-8) vide Ex.-P/6. The viscera

Cr.A. No. 147 of 2012

was preserved vide Ex.-P/5 by Doctor. The map was prepared vide

Ex.-P/3. The FSL report is Ex.-P/17, where it was found that the

deceased died due to consumption of poisonous substance i.e.

glycosides. F.I.R. was registered vide Ex.-P/19 and the Statements

of the witnesses were recorded.

5. After completion of the investigation, charge sheet was filed against

the appellants herein and another co-accused Kailashiya Bai @

Kailash for offence punishable under Sections 498-A, 306 & 34 of

the I.P.C before Chief Judicial Magistrate, Baikunthpur, which was

committed to the Court of Session, Baikunthpur (Koriya), C.G. for

hearing and disposal in accordance with law. The learned trial court

framed charges under Section 498-A, 306 & 304-B of IPC against

the appellants/accused. The appellants abjured the guilt and

entered into defence.

6. In order to bring home the offence, the prosecution examined as

many as 16 witnesses and brought 19 documents into record.

Statement of the appellants/accused was recorded under Section

313 of Cr.P.C., wherein they denied the guilt, and examined 02

defence witnesses as DW-1 and DW-2 and got exhibited 06

documents D/1 to D/6.

7. The learned trial Court after appreciating the entire evidence

available on record, by the impugned judgment, convicted and

sentenced the appellants as stated above. However, the trial Court

acquitted the appellants of the charge punishable under Section

306 of IPC.

Cr.A. No. 147 of 2012

8. Learned counsel for the appellants submits as under :-

(i) that there is no evidence on the record to hold that deceased Devwati died in suspicious condition by committing suicide;

(ii) that from the evidence of the prosecution witnesses, it is quite clear that there was no demand of dowry on the part of the appellants from the deceased or her family members at any point of time;

(iii) that the ingredients of Section 304-B of the I.P.C. are missing, particularly there is no evidence to the effect that soon before her death, she was subjected to cruelty;

(iv) that there is delay in registering the F.I.R. (Ex.-P/19) as the incident had taken place on 16.10.2008 and F.I.R. was registered on 02.11.2009 and no sufficient explanation has been given by the prosecution in this regard;

(v) that presumption as to dowry death would get activated only 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 appellants;

(vi) and lastly, learned counsel for the appellant would pray for acquittal of the appellants herein.

9. On the other hand, learned counsel for the State would support the

judgment passed by the learned trial Court and submit that

deceased has died within 07 years of her marriage, therefore,

presumption of Section 113-B of the Evidence Act would get

attracted and thus, the learned trial Court has rightly convicted the

present appellants. He submits that the appeal deserves to be

Cr.A. No. 147 of 2012

dismissed.

10. We have heard learned counsel for the parties, considered their

rival submissions made hereinabove and went through the records

carefully.

11. Section 304-B (1) of IPC defines "dowry death" of a woman. It

provides that "dowry death" is where death of a woman is caused

by burns or bodily injuries or occurs otherwise than under normal

circumstances, within seven years of 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 demand for dowry. The prosecution has to establish following

essential ingredients to sustain the conviction under Section 304-B

of the I.P.C :-

(i) the death of a woman should be caused by burns or bodily injury or otherwise than under "normal circumstance";

(ii) such a death should have occurred within seven years of her marriage;

(iii) she must have been subjected to cruelty or harassment by her husband or any relative of her husband;

(iv) such cruelty or harassment should be for or in connection with demand of dowry; and

(v) such cruelty or harassment is shown to have been meted out to the woman soon before her death.

12. The first contentious part that exists in the interpretation of Section

304-B of the I.P.C. relates to the phrase "soon before" used in the

section.

Cr.A. No. 147 of 2012

13. In case of Kans Raj vs. State of Punjab and Others1, the Hon'ble

Supreme in para-15 has held as under :-

"15. ... "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. ... In relation to dowry deaths, the circumstances showing the existence of cruelty for harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. ... Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough."

(emphasis supplied)

14. When the prosecution shows 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", a

presumption of causation arises against the accused under Section

113-B of the Evidence Act and the accused has to rebut this

statutory presumption. Section 113-B of the Evidence Act reads as

under :-

"113-B. Presumption as to dowry death. - When the question is whether a person has committed the 1 (2000) 5 SCC 207

Cr.A. No. 147 of 2012

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 purposes of this section, "dowry death" shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)."

15. Now, coming to the facts of the present case in light of the judgment

passed by the Hon'ble Supreme Court, it is quite vivid that the

learned trial Court has convicted the appellants on the strength of

evidence of Shriram (PW-1), Phoolvati (PW-2), Sumitra (PW-3),

Indra Kunwar (PW-5), Harish Chand (PW-6) and Somar Sai (PW-7),

who have categorically supported the case of prosecution.

I) Shriram (PW- 1) who is the father of the deceased has stated

that his daughter was admitted to the hospital, as informed by

one Dutta. He has further alleged that the accused persons

were making demand of Rs.50,000/-, one motorcycle and gold

chain and this fact was narrated by his daughter whenever

she visited his house. He has further stated that on the date of

incident at about 08:00 AM, he was called by his daughter and

she asked him to fulfill the demands. This witness in para-8 of

his cross-examination has admitted that demand of

Rs.50,000/-, jewelry and motorcycle was not made by the

accused persons and this fact was narrated to him by his wife

Cr.A. No. 147 of 2012

Phoolvati (PW-2). He has further admitted in para-9 that no

meeting ever held after the marriage of his daughter. He has

also admitted that deceased Devwati is his daughter from first

wife namely Sumitra (PW-3).

II) Phoolvati (PW-2) who is the step mother of the deceased has

stated that she got a phone call two years back where it was

informed that Devwati has died in a hospital run by Doctor

Sharma. She has further stated that the appellants were

demanding Rs.50,000/-, gold chain, ring and other articles and

her daughter was being ill-treated upon failure to fulfill said

demand. In cross-examination, she has admitted that the

deceased was married 5-6 years ago and there was no talk

with the appellants with regard to dowry items. In para-5, she

has admitted that her husband i.e. Shriram (PW-1) was irked

from the deceased, therefore, the deceased never used to

visit their house.

III) Sumitra (PW-3), the original mother of the deceased, has

stated that the appellants were harassing the deceased in

connection with demand of dowry. In cross-examination, she

has admitted that she was married to Somar Sai (PW-7) 15-16

years ago and they are residing together. In para-6, she has

admitted that the deceased was married to appellant No.1

Jaiprakash 7-8 years ago and in these years; she visited 2-3

times to her matrimonial house. She has stated that she does

not know the profession of appellant No.1 Jaiprakash Sahu.

Cr.A. No. 147 of 2012

IV) Indra Kunwar (PW-5) is the aunt of the deceased. She has

stated that one month prior to death of Devwati (deceased),

she had visited her house where she stated about demand of

dowry by her in-laws. She also narrated the fact that one day,

the father-in-law of the deceased threatened her by using axe,

but the deceased entered into a room and bolted the door and

after 15 days she died. In cross-examination in para-4, she

has admitted that the marriage of Devwati was solemnized 8-9

years ago and she has 5-6 years old daughter. She has also

admitted that appellant No.1 Jaiprakash Sahu and Devwati

were residing separately from their parents. In para-7, she has

stated that there was meeting, but she did not participate in

that meeting.

V) Harish Chand (PW-6) who is the maternal uncle of the

deceased, has stated that after 15 days of marriage, the

deceased had visited his house and she had narrated that

there was demand of Rs.50,000/- and one motorcycle by her

in-laws. He has further stated that he was informed about the

death of deceased at about 11:00 PM on the date of incident.

In cross-examination in para-8, he admitted that he was not

agreeing to the marriage of the deceased with appellant No.1

as the living standard of the appellant was not good. In para-9,

he has admitted that marriage of deceased Devwati was

solemnized against his wishes and he was not a part of the

said marriage as he was not invited. Further, he has admitted

Cr.A. No. 147 of 2012

that appellant No.1 and his wife (deceased) were residing

separately from their parents. In para-2 of his examination-in-

chief and para-11 of his cross-examination, this witness has

stated that 15 days after the marriage of Devwati, she had

visited his house and at that time she had stated that her in-

laws were making demand of Rs.50,000/-, motorcycle etc.

VI) Somar Sai (PW- 7) has stated that he knows the deceased

and whenever she used to visit her parental house, she used

to narrate the fact of demand of dowry and cruelty meted out

to her. In para-4 of cross-examination, he has admitted that he

is resident of Village Kushmaha, whereas complainant

Shriram (PW-1) is a resident of Village Katgodi. Further, he

has admitted that he has no knowledge about the demand of

dowry made by the appellants during the marriage. He has

also admitted that appellant No.1 and the deceased were

residing separately from their parents.

VII) Dr. S.K. Gupta (PW- 8) who conducted the postmortem on

17.10.2008 has stated that there were no external injury and

cause of death was asphyxia due to ingestion of poison.

16. It is also pertinent to take note of the fact that the statements of the

witnesses under Section 161 Cr.P.C. were recorded on 04.11.2009

i.e. after 13 months.

17. The related witnesses of the deceased have stated that the

deceased was married to appellant No.1 Jaiprakash Sahu 4-5 years

ago and at the time of marriage there was demand of dowry.

Cr.A. No. 147 of 2012

Shriram (PW- 1) has stated the fact relying on the version of his wife

Phoolvati (PW- 2). Phoolvati (PW- 2) has stated that the deceased

hardly visited her house. Sumitra (PW-3) left her daughter long back

and she was residing with her second husband Somar Sai (PW- 7)

and thus, she is a hearsay witness. Indra Kunwar (PW- 5) has no

factual knowledge of marriage of the deceased and appellant No.1

as she has stated that they were married 8-9 years ago and there is

one daughter aged 5-6 years, but she has admitted that appellant

No.1 and the deceased were residing separately from their parents.

Her statement under Section 161 Cr.P.C. (Ex.-D/6) was recorded on

04.11.2009 after 13 months and till then she kept quiet. Harish

Chand (PW- 6) has clearly stated that he was not invited for the

marriage and the deceased had narrated the fact of demand to him

after 15 days of marriage, therefore, his evidence is not relevant.

Somar Sai (PW-7) who is husband of Sumitra (PW-3) has no

relation with the deceased or her family.

18. The Hon'ble Supreme Court in case of Baijnath and Others vs.

State of Madhya Pradesh2 has held in paras- 33 and 34 as

under :-

"33. Tested on the judicially adumbrated parameters as above, we are of the unhesitant opinion that the prosecution has failed to prove beyond reasonable doubt, cruelty or harassment to the deceased for or in connection with any demand for dowry as contemplated in either of the two provisions of the Code under which the accused persons had been

2 (2017) 1 SCC 101

Cr.A. No. 147 of 2012

charged. Noticeably, the alleged demand centres around a motorcycle, which as the evidence of the prosecution witnesses would evince, admittedly did not surface at the time of finalisation of the marriage.

PW 5, the mother of the deceased has even conceded that there was no dowry demand at that stage. According to her, when the husband (who is dead) had insisted for a motorcycle, thereafter he was assured that he would be provided with the same, finances permitting. Noticeably again, the demand, as sought to be projected by the prosecution, if accepted to be true had lingered for almost two years. Yet admittedly, no complaint was made thereof to anyone, far less the police. Apart from the general allegations in the same tone ingeminated with parrot-like similarity by the prosecution witnesses, the allegation of cruelty and harassment to the deceased is founded on the confidential communications by her to her parents in particular and is not supported by any other quarter.

34. To the contrary, the evidence of the defence witnesses is consistent to the effect that no demand as imputed had ever been made as the family of the husband was adequately well-off and further Appellant 1 Baijnath had been living separately from before the marriage. According to them there was no occasion for any quarrel/confrontation or unpleasantness in the family qua this issue. Significant is also the testimony of DW 3, the sister-in-law of the deceased who indicated abandonment of the matrimonial home by her with the son of Thoran Singh, the Sarpanch of the village for which the understandably had incurred the displeasure of the in-laws. DW 4, the father of DW 3 who had given his daughter in marriage in the same

Cr.A. No. 147 of 2012

family had deposed that he did not ever encounter any demand for dowry. The testimony of the prosecution witnesses PW 3 and PW 7 fully consolidate the defence version."

19. The prosecution has proved that the deceased died other than

under normal circumstances within seven years of her marriage, but

rest of the ingredients of Section 304-B of the I.P.C. have not been

proved beyond reasonable doubt. Therefore, presumption of

Section 113-B of the Evidence Act would not apply as the

prosecution has to prove all the ingredients of Section 304-B of the

I.P.C. Proof of cruelty or harassment by the husband or her relative

or the person charged is thus the sine qua non to inspirit the

statutory presumption, to draw the person charged within the coils

thereof. If the prosecution fails to demonstrate by cogent, coherent

and persuasive evidence to prove such fact, the person accused of

either of the offences cannot be held guilty by taking refuge only of

the presumption to cover up the shortfall in proof.

20. The prosecution failed to prove the fact and foremost ingredients of

Section 304-B of IPC that soon before death the deceased was

subjected to cruelty in connection with demand of dowry and further

the prosecution has not explained the delay in registering the F.I.R

which is of about 13 months. Further, no complaint was made by

the deceased herself or her parents against the present appellants

before anyone. There are general allegations only against the

appellants.

Cr.A. No. 147 of 2012

21. A cumulative consideration of the overall evidence on the face of the

record leaves us unconvinced about the truthfulness of the charge

against the present appellants. The prosecution in our estimate has

failed to prove this indispensable component of the offence beyond

reasonable doubt. The factum of unnatural death in the matrimonial

home and that too within seven years of marriage therefore is thus

ipso facto not sufficient to bring home the charge under Sections

304-B and 498-A of the I.P.C. against them.

22. Therefore, in view of the above discussion, the appellants are

entitled to benefit of doubt. The impugned judgment of conviction

and order of sentence are set aside. The appellants are acquitted of

the charges punishable under Sections 304-B and 498-A of the

I.P.C. and they be released forthwith, if not required in any other

case. The appellants are on bail, they need not surrender, however,

their bail bonds shall remain in operation for a period of 6 months in

view of the provisions contained in Section 437-A of the Cr.P.C.

23. Accordingly, the criminal appeal is allowed.

                      Sd/-                                       Sd/-
              (Sanjay K. Agrawal)                       (Rakesh Mohan Pandey)
                    Judge                                       Judge




vatti