Chattisgarh High Court

Laxshmi Kant vs The State Of C.G on 21 January, 2022

                                       1

                                                                       NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR
                       Order Reserved on 08/10/2021
                       Order Delivered on 21/01/2022
                           CRA No. 2056 of 1999
        Laxshmi Kant S/o Panna lal Mishra aged about 28 years, R/o Village
         Pandary, P.S. Chakerbhata, District - Bilaspur, (M.P.), Now
         Chhattisgarh.
                                                               ---- Appellant
                                     Versus
      State of M.P. (Now Chhattisgarh).
                                                            ---- Respondent

For Appellant                    :     Mr. Rahil Arun Kochar, Adv.
For State/Respondent             :     Ms. Shubha Shrivastava, P.L.

                  Hon'ble Smt. Justice Rajani Dubey
                                C A V Order

Date : 21/01/2022

1. The present appeal arises out of the impugned judgment of conviction and order of sentence dated 03.08.1999 passed by the learned IV Additional Juge, Bilaspur (M.P.), in S.T. No. 114/1998 whereby, the learned Additional Sessions Judge has convicted and sentenced the appellant as under :-

Conviction Sentence

R.I. for 7 years and fine of Rs. 2000/- in default U/s 304-B of IPC of fine additional R.I. for 1 year.

2. Brief facts of the case are that on 11.06.1997 Harshlata daughter of Ashok Kumar (PW-1) was married with accused Laxmikant. Before the marriage, a scooter was demanded by the accused, but the father of the deceased agreed to give Luna and the marriage was fixed. At the time of the marriage, accused had given 10x5 grams gold, steel almirah, Sofa Set, T.V. and Rs. 5000/- for the cost of the procession. Father of the victim gave these items as dowry. At the term of the marriage, again the accused started asking for a scooter instead of Luna, when the father of victim had expressed his inability. After marriage, victim came back to her maternal

house and told that her in-laws harass her by beating her and saying that she had brought fewer items in dowry. After this, accused Laxmikant and victim had come on Bhaidooj festival, even then the accused had said that if he will not provided said scooter and Rs. 1000/- in cash, he will leave the victim, then after explaining to Laxmikant victim's father sent back to his daughter. On 12.12.1997 father of the victim received an information that his daughter has been burnt by the fire and is serious. On this, Ashok Kumar reached at the house of his daughter and saw that her daughter was laying dead in her room and was completely burnt. On 12.12.1997 a marg report (Ex.-P/1) was lodged by the constable of Chakarbhata police Station. Panchnama of the dead body vide Ex.-P-4 was prepared. Match box, pieces of bangles, burnt sarees, half-burnt clothes, container of kerosene were seized vide Ex.-P/5 from the spot. Dr. N. Sharma (PW-14) conducted the postmortem of the deceased vide Ex.-P/4 and he was opined that the whole body of the deceased was burnt which caused death due to suffocation. Vide Ex.-P/11. spot map was prepared by G.S. Darra (PW-13). On 16.12.1997 vide Ex.-P/13 FIR was registered. During the investigation vide Ex.-P/2 letters were seized which were written by the deceased to her father. Thereafter, seized materials were sent for chemical examination to the Forensic Science Laboratory, Sagar. After investigation charges-sheet was filed and charge was framed under Section 304-B of IPC against the appellant and other co-accused persons.

3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 15 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case.

4. Upon consideration of oral and documentary evidence the trial Court acquitted the other co-accused persons namely Pannalal, Shashikant and Uttarabai of the charge under Section 304-B of IPC and held that the prosecution has established the guilt of the present accused/appellant under Section 304-B of IPC and sentenced him as mentioned above. Hence, this appeal.

5. Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence under Section 304-B of IPC against the appellant is illegal and perverse. He next submits that the learned trial Court has failed to observe that the prosecution has failed to prove its case beyond all reasonable doubts. He further submits that the

general and vague allegation of ill treatment is not sufficient to establish the offence under Section 304-B of I.P.C. The learned trial Court has relied upon the evidence given by the interested and partition witnesses without there being any corroboration of any independent material particular. The prosecution witnesses are interested and partition prior to the death of deceased none of them raised any dispute about ill treatment. The incident had occurred on 12.12.1997 but the offence was registered on 16.12.1997 and the statement of the witnesses were recorded on 23.12.1997. Prosecution witnesses have given materially different story about the demand and cruelty with the deceased by the appellant. Sakuntala (PW-3), mother of the deceased has stated in her statement that the appellant had asked for Rs. 10,000/- for the purpose of opening a shop and also promised to return the same after due earning, such request for help cannot be regarded as dowry. The statements of the father, mother and sister are clearly indicating that there was no settlement of dowry, there was no demand of dowry vide Ex.-P/2, Ex.-D/1, Ex.-D/2, Ex.-D/3 and Ex.-D/4, but the learned trial Court has failed to consider the evidence on record given by the prosecution witnesses. He lastly submits that the in this case other accused persons have been acquitted by the trial Court in the same set of evidence so the appellant cannot be convicted. The learned trial Court has failed to apply the well established principle regarding appreciation of evidence, all the prosecution witnesses are not fully reliable, in view of their conduct and contradictions other accused persons were acquitted so the present appellant is also liable to be acquitted, therefore, the impugned judgment of conviction is liable to be set aside. In support of his argument he has placed reliance in the matters of Bhagwat Sahu Vs. State of M.P.1, Deepak Kumar Mishra Vs. State of M.P. 2, Meka Ramaswami Vs. Dashri Mohan and Others3, Anubha Dave and Another Vs. State of C.G.4, GaneshRam Alias Tedgi & Others Vs. State of C.G.5 and Dhana Bai Verma and Another Vs. State of C.G.6.

6. On the other hand State counsel supported the impugned judgment of conviction and order of sentence.

7. Heard counsel for both the parties and perused the material available on record including the impugned judgment.

1    2011 (2) C.G. L.R.W. 155.
2    2011 (3) C.G. L.R.W. 214.
3    A.I.R. 1998 S.C. 774.
4    2018 (5) C.G.L.J. 485.
5    2018 (5) C.G.L.J. 469 (DB).
6    2018 (5) C.G.L.J. 459.

8. In the instant case, charges-sheet was filed against the four accused persons namely, Laxmikant (husband of the deceased), Pannalal (father-in- law of the deceased), Shashikant (brother-in-law of the deceased) and Uttarabai (mother-in-law of the deceased), whereas the learned trial Court acquitted the three accused persons except the appellant of the charge under Section 304-B of the IPC and the appellant is convicted for the said offence. Learned trial Court has held in para-26 as under :-

"26. izdj.k esa izLrqr lEiw.kZ lk{; ,oa ifjfLFkfr;ksa ls vfHk;qDr iUukyky] 'kf'kdkUr mQZ iIiw rFkk mRrjkckbZ ds fo:) i;kZIr ,oa izR;{k lk{; miyC/k ugha gSA vr% mUgsa 'kadk dk ykHk nsrs gq, /kkjk 304&ch Hkk-n-fo- ds vkjksi ls nks"keqDr fd;k tkrk gSA tgka rd fd vfHk;qDr y{ehdkar dk iz'u gS] mlds fo:) viuh ifRu g"kZyrk dks ngst izrkM+uk fd, tkus ds laca/k esa i;kZIr lk{; miyC/k gSaA ;g mi/kkj.kk cukus dks Hkh i;kZIr vk/kkj ekStwn gS fd vfHk;qDr y{ehdkar }kjk viuh ifRu g"kZyrk dks ngst ds fy, fujarj izrkfM+r fd;k x;kA QyLo:i lkekU; ifjfLFkfr;ksa ls fHkUu vkx ls ty dj g"kZyrk dh e`R;q gqbZA bl izdkj vfHk;qDr y{ehdkar ds fo:) /kkjk 304&ch Hkk-n-fo- dk vkjksi lansg ls ijs izekf.kr i;k tkrk gSA"

9. Ashok Kumar (PW-2), father of the deceased has stated as under :-

6. bl le; vfHk;qDr y{ehdkar us eq>ls nqdku dk O;kikj c<+kus ds fy, iSls dh ekax fd;k FkkA eSaus dgk fd esjh ifjfLFkfr iSls nsus dh ugha gSA vkSj og xqLls esa y{ehdkar us dgk fd iSls ugha nksxs rks Bhd ugha gksxk vkSj esjh yM+dh dks ysdj pys x;sA

7. rhtk R;kSgkj ds le; esjh yM+dh yxHkx ,d lIrkg rd jgh bl ckj Hkh yM+dh g"kZyrk us ngst de ykus ds uke ls vfHk;qDrx.k rFkk mlds llqjky okys ngst ds fy, ijs'kku djrs gSAa

19. Qynku ds le; tks iSls o leku fn;k Fkk og tkfr&fjokt ds vuqlkj fn;k FkkA 'kknh dh ckrphr ds le; iUuk yky ds cM+s HkkbZ tk f'k{kd Fks ekStwn FksA 'kknh r; gksus ds le; ngst dh ckr Hkh r; gks x;h FkhA ;g ngst nksuksa i{kksa dh jtkeanh ls r; fd;k x;k FkkA ijUrq eSaus 'kknh esa ngst tks r; gqvk Fkk ml vuqlkj ugha fn;k FkkA

21. esjh yM+dh us dbZ ckj f'kdk;r fd;k Fkk fQj Hkh eSaus Fkkus esa fjiksVZ ugha fd;k FkkA eSaus yM+dh dh e`R;q gks tkus ds i'pkr~ Hkh Fkkus esa vfHk;qDrksa ds f[kykQ f'kdk;r ugha fd;k FkkA

10. Shakuntala (PW-3), mother of the deceased has stated as under :-

3. esjs nkekn us eq>ls 10][email protected]& :i;s dh ekax fd;k Fkk fd xfu;kjh esa mls nqdku [kksyuk gSA pwafd gekjs ikl :i;s dk bUrtke ugha Fkk blfy;s ugha fn;sA

9. eSaus vius iqfyl dFku iz-Mh-&4 esa esjk nkekn gQ~rs esa 2&3 ckj iSlk ysus vkrk Fkk] ;g Hkh dgk Fkk fd nkekn ls ,slk dgk x;k Fkk fd gSfl;r ds vuqlkj /khjs&/khjs iSls

ns nsxsa yM+dh dks rax er djuk] yM+dh dk ,d iSj Vh Vscy ds mij j[kk Fkk] gkFk iSj gFksfy;ka ty x;h Fkh] ,d flysUMj j[kk gqvk Fkk] pyus fQjus dk fu'kku ugha Fkk] ;g lHkh ckrsa iz-Mh-&4 esa u fy[kh x;h gksa rks dkj.k ugha crk ldrhA

10. ;g Hkh dguk Fkk fd HkkbZ ds fy;s xfu;kjh esa ,d nqdku vkSj [kksyuk gS vksj mlh dkj.k og iSlk ekaxrk FkkA 'kknh ds igys tks Hkh ckrphr r; gq;h Fkh mlh ds vuqlkj ge yksxksa us yM+ds i{k okyksa dks jde ns fn;k FkkA

11. Manisha Shukla (PW-4), sister of the deceased has stated as under :-

2. tc Hkh g"kZyrk esjs ikl vk;h Fkh rks eq>s cryk;h Fkh fd gkftj vnkyr vfHk;qDrx.k ngst dh ekaxksa dks ysdj mldks rax djrs gSaA

4. eSaus vius dFku iz-Mh-&5 esa ;g crk fn;k Fkk fd tc esjh cgu vius llqjky okyksa dh f'kdk;r djrh Fkh rks mldk ifr Hkh ge yksxksa ds ikl vk tkrk Fkk] esjh cgu us eq>s tks vius llqjky okyksa ds f[kykQ f'kdk;r fd;k Fkk og eSa ckrs vius ikik dks cryk;h Fkh ijUrq iz-Mh-&5 esa mDr ckr u fy[kh gks rks dkj.k ugha cryk ldrhA

5. igyh ckj tc esjh cgu vkSj mldk ifr jruiqj egkek;k nsoh n'kZu ds fy;s vk;s Fks rks vkrs tkrs :ds Fks] vkSj rhljh ckj pwafd g"kZyrk ds isV esa nnZ gksus ls MkWDVj dks fn[kkuk gS ,slk dgdj mldk ifr esjs ikl yk;k Fkk vkSj eq>ls dgk Fkk fd eSa mlds lkFk pywa bl dk.k eSa Hkh muds lkFk MkWDVj nqcs ds uflZax gkse x;h FkhA MkWDVj Jhefr nqcs us esjh cgu ds isV dh tkap ds ckn nokbZ;ksa dk iqtkZ fy[kdj fn;k Fkk vkSj dgk Fkk fd nokbZ yxkrkj [kkrh jgsA

12. Ramgulam Mishra (PW-5) has stated as under :-

2. isUMkjh ls vfHk;qDr iUukyky mlds cM+s HkkbZ ek[ku vk;s Fks vkSj cksys fd 'kknh esa ,d LdwVj vkSj [email protected]& :i;s uxnh rFkk vU; leku dh ekax fd;s vkSj [email protected]& :i;s cl fdjk;k dh ekax fd;sA bl ij ls v'kksd 'kekZ us dgk fd og LdwVj ls LFkku ij ywuk ns ldsxk vkSj cl fdjk;k [email protected]& :i;s nsxk ijUrq [email protected]& :i;s uxnh og ugha ns ldsxkA ,slk cksyus ij vfHk;qDrx.k eku x;sA

4. 'kknh ds yxHkx 20&22 jkst ckn g"kZyrk isUMkjh ls vius ek;ds xzke dqavk vk;h FkhA og ges'kk gekjs ?kj ij cSBus ds fy;s vkrs jgrh Fkh vkSj bl ckj Hkh gekjs ?kj vk;h FkhA esjh g"kZyrk ls ckrphr gq;h og cryk;h fd mldh 'kknh Bhd txg ij ugha gq;h gS D;ksafd mlds llqjky okys mlls ngst ds uke ij nl gtkj vkSj LdwVj dh ekax djrs gSAa eSaus tc iwaNk dkSu ekax djrs gSa rks mlus cryk;k fd gkftj vnkyr pkjks vfHk;qDrx.k bl izdkj ngst dh ekax djrs gSa vkSj izrkfM+r djrs gSAa

8. eSaus yk'k iapukek ds le; njksxk dks ;g vo'; crk;k Fkk fd g"kZyrk dks LdwVj vkSj nl gtkj :i;s ds uke ij llqjky okys izrkfM+r djrs FksA njksxk us ;g ckr ml le; ugha fy[kk FkkA eSaus tc yk'k iapukek ds le; njksxk dks cyyk;k Fkk rc ;g ckr esjs lkeus njksxk us fy[kh vFkok ugha fy[kh eSa ugha cryk ldrk gwaA

13. Rama Mishra (PW-6) has stated as under :-

2. 'kknh ds 20&25 fnu ckn g"kZyrk vius llqjky isUMkjh ls dqavk xkao vk;h Fkh og esjs ?kj ij cSBus vk;h Fkh rc mlls esjh eqykdkr gq;h FkhA mlus eq.s cryk;k Fkk fd ngst dh ekax dks ysdj mlds lkl] llqj vksj nsoj rFkk mlds ifr rax djrs gSaA vkSj :i;s dh ekax djrs gSa xkyh xqIrkj djrs gSa vkSj [kkus ihus dks ugha nsrs gSaA

8. ?kVuk ds 2&3 ?k.Vs ckn eSa vkSj esjk ifr vkSj 'kdqUryk okil ykSV x;s FksA nwljs fnu g"kZyrk ds firk vkSj pkpk us gekjh nqdku esa vkdj ppkZ dh fd g"kZyrk rks ej x;h gS vc vkxs D;k dk;Zokgh djuk pkfg;sA esjs ifr us dgk Fkk fd tSlk Bhd yxs oSlk djksA ogka ij g"kZyrk ds firk vkSj esjs ifr rFkk g"kZyrk ds pkpk jktdqekj us vkil esa r; fd;k fd iqfyl dks D;k D;k crykuk gSA vkSj mlds ckn esjh nqdku ls mBdj pys x;sA ;g lgh gS fd ml le; g"kZyrk ds firk us dgk Fkk fd njksxk vk;sxk rc vki yksxksa dks Hkh cqyk ysaxs fQj c;ku nsaxsA 10&12 fnu ckn njksxk gekjs xkao vk;k Fkk rc g"kZyrk ds firk us gekjs ?kj ij vkdj cryk;k fd tSlk r; fd;s gSa oSlk c;ku nsuk gS njksxk gekjs ?kj vk x;k gSA ;g lgh gS fd mlds ckn ge lHkh yksx v'kksd ds ?kj ij tkdj njksxk dks c;ku fn;s FksA lHkh dk c;ku njksxk us v'kksd dqekj ds ?kj ij fy;k FkkA

14. In the instant case, two letters of deceased, Ex.-D/1 and Ex.-D/2 were admitted by the Ashok Kumar (PW-2), father of the deceased and has stated in para 15 as under :-

15. lk{kh dks iz-Mh-&1 dk vUrjns'kh; i= izfrijh{k.k ds cpko i{k }kjk fn[kk;k x;k rks lk{kh dk dguk gS fd bl ij esjk gh irk fy[kk gqvk gS vksj esjh yM+dh ds }kjk fy[kk x;k gSA ml ij rkjh[k 06-10-1997 fy[kh x;h gSA Hkstus okys g"kZyrk is.Mkjh okys fgLls dks L;kgh ls dkV&fQV dh xbZ gSA iz-Mh-&2 dk vUrjns'kh; i= esjh yM+dh ds } kjk fy[kk x;k gSA bl i= esa Hkstus okys vkSj ikus okys dk irk ugha gSA bl iz-Mh-&2 esa 10-12-1997 dh rkjh[k fy[kh x;h gSA

15. Letters Ex.-D/1 and Ex.-D/2 were written by the deceased but in both the letters, deceased has not written a single word about the harassment and demand of dowry. In the matter of Dwarika Prasad and another Vs. State of C.G.7, this Court observed in para 19 which reads thus :-

19. Necessary ingredients for invoking the provisions of Sections 302, 304B and 306 of the Indian Penal code read with Section 113B of the Indian Evidence Act have been discussed by the Supreme Court in the case of Narayanamurthy Vs. State of Karnataka8. In paragraphs 17 and 18 of the said judgment, it has been observed thus :

"17. The basic ingredients to attract the provisions of Section 304B, IPC, are as follows:-

7 2018 (5) C.G.L.J. 80.

8 (2008) 4 Supreme 228.

"(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."

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-B and 306 of the Penal Code. The distinction as regards commission of an offence under one or the other provisions as mentioned hereinbefore came up for consideration before a Division Bench of this Court in Satvir Singh v. State of Punjab, (2001 (8) SCC 6331 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 Section 304-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 the 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 emphasise 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'."

16. In the case of Sanjiv Kumar Vs. State of Punjab 9 it has been held in paras 16-17 which reads thus :-

"16. Having regard to the evidence on record, the question arises as to whether the prosecution has proved its case beyond reasonable doubt. Under Section 304-B IPC the prosecution is required to establish that the death was caused by any burn or bodily injury or occurred otherwise than under normal circumstances, that such death took place within seven years of marriage, and that it is shown that soon before her death the woman was subjected to cruelty or harassment by her husband for dowry. It these facts are established by the prosecution, the presumption under Section 113-B, Evidence Act, 1872, arise and the court shall presume that such person who

9 (2009) 16 SCC 487.

had subjected the woman to cruelty or harassment in connection with any demand for dowry shall be presumed to have cause the dowry death. The presumption that arises in such cases may be rebutted by the accused."

"17. If the accused successfully rebuts the presumption by pleading and proving a probable defence, the presumption under Section 113-B stands rebutted and the prosecution must prove its case without the aid of such presumption. It must logically follow that in a case where such presumption arises, the evidence, oral, circumstantial or documentary, adduced in defence must be examined by the court with a view to find whether the presumption stands rebutted. It is essentially a matter of appreciation of evidence."

17. In the instant case, all the witnesses have stated in their evidence that appellant demanded money for his shop, there is no evidence on record to establish that the deceased was harassed by the appellant soon before her death. The prosecution has failed to prove all the ingredients required to hold an accused guilty under Section 304-B of IPC. On the contrary, the presumption under Section 113-B of the Evidence Act has been successfully rebutted by the accused person by pleading and proving a probable defence by the admitted suggestion of the letters Ex.-D/1 and Ex.-D/2, the findings recorded by the Court below convicting the accused/appellant under Section 304-B of IPC are not based on due appreciation of the evidence on record and therefore findings liable to be set aside.

18. As discussed above, the impugned judgment of conviction and order of sentence is set aside. The appeal is allowed and the accused/appellant is acquitted of the charge levelled against him. As the appellant is on bail, he need not surrender and his bail bonds and sureties stand discharged.