HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No.585 of 2005
Santoshdhari
...Petitioners
Versus
The State of Chhattisgarh
...Respondents
(APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL
PROCEDURE, 1973)
! Mr.K.A.Ansari, Senior Advocate with Mrs.Meera Jaiswal, Advocate for the appellant
^ Mr.Akhil Mishra, Dy.Govt.Advocate for the State/respondent
Honble Mr. T.P. Sharma, J
Dated:27/07/2009
: Judgment
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JUDGMENT
(Delivered on 27th July, 2009)
The appellant who is husband of deceased Prema Bai has
challenged the legality and propriety of the judgment of
conviction and order of sentence dated 29.6.2005 passed by the
Additional Sessions Judge, Korba, in Sessions Trial No.1/2004
whereby and whereunder the learned Additional Sessions Judge
after holding the appellant guilty for the offence punishable
under Sections 498-A and 304-B of the Indian Penal Code
sentenced him to undergo rigorous imprisonment for 2 years and
to pay a fine of Rs.3000/-, in default of payment of fine to
further undergo rigorous imprisonment for 6 months and rigorous
imprisonment for 7 years.
2. Judgment of conviction and order of sentence is challenged
on the ground that without there being an iota of evidence
relating to commission of cruelty and torture in connection
with demand of dowry soon before death of Prema Bai, the Court
below has convicted and sentenced the appellant as
aforementioned and thereby committed an illegality.
3. Case of the prosecution, in brief, is that the present
appellant is husband of deceased Prema Bai who married with the
appellant in the month of June, 2003 and died on 27.4.2004 as a
result of hanging herself in the house of the appellant. After
marriage of Prema Bai, the appellant and their relatives used
to demand of dowry especially television, motor-cycle and other
articles and as a result of such demand, torture and cruelty,
she committed suicide. Merg intimation was registered vide
Ex.P/6 on 27.4.2004 and on the basis of merg intimation
registered merg was recorded vide Ex.P/8. Investigating officer
proceeded for the scene of occurrence and after summoning the
witnesses, inquest was prepared over the body of the deceased
vide Ex.P/8. Dead body was sent for autopsy vide Ex.P/9.
Autopsy was conducted by the team of doctor vide Ex.P/5 and
opined that cause of death was asphyxia as a result of
antemortem hanging. Spot map was prepared by patwari vide
Ex.P/2. Sealed clothes of the deceased were seized vide Ex.P/7.
Spot map was prepared vide Ex.P/10. F.I.R. was lodged vide
Ex.P/12.
4. After recording the statements of the witnesses under
Section 161 of the Code of Criminal Procedure, 1973 (in short
`Code’) and after completion of investigation, one charge sheet
was filed before the Chief Judicial Magistrate, Katghora who in
turn committed the case to the Court of Sessions, Bilaspur from
where learned Additional Sessions Judge, Korba received the
same on transfer for trial.
5. In order to prove the guilt of the accused/appellant, the
prosecution has examined as many as 20 witnesses. Statement of
the accused was recorded under Section 313 of the Code where he
denied the circumstances appearing against him and innocency
and false implication is pleaded. Appellant has examined
himself as defence witness and taken the defence that Prema Bai
was married to him in the year 2003 and at that time there was
no demand of dowry. After her marriage behavior of Prema Bai
with the appellant was abnormal. Sometime she used to press his
neck and used to bite the ear. She used to misbehave with the
accused/appellant. He has also stated that even there was no
consumption of marriage. He has tried his level best but he was
not succeeded to maintain physical relation with the deceased.
He has lodged the report (Ex.D/2) on 3.10.2003 against the
deceased and also examined Daulatram Dhari (DW-2),
Smt.Ramkunwar Bai (DW-3), Ku. Uma (DW-4), Bharat Ratre (DW-5)
and Milan Ratre (DW-6), A.Tirki (DW-7) and Awadh Ram (DW-8) as
defence witnesses. Defence witnesses have also deposed that the
accused persons had not committed cruelty or torture upon
deceased Prema Bai. Deceased Prema Bai was residing with the
present appellant after her marriage. They have denied any
demand of dowry. A.Tirki (DW-7) has proved Ex.D/2.
6. Learned Additional Sessions Judge after affording an
opportunity of hearing to the parties, convicted and sentenced
the appellant as aforementioned.
7. I have heard Mr. K.A.Ansari, Senior Counsel Mrs. Meera
Jaiswal, counsel for the appellant and Mr.Akhil Mishra, Deputy
Government Advocate for the State/respondent and perused the
judgment impugned and record of the court below.
8. Learned counsel for the appellant vehemently argued that
the appellant was married with deceased Prema Bai but behavior
of Prema Bai was not normal and cordial. She did not like the
appellant and used to misbehave with him. Sometime she tried to
press her neck. Sometime she used to bite his ear and even she
has refused to maintain matrimonial relation. The present
appellant never demanded motorcycle, television and other
articles and after death of Prema Bai he has been falsely
implicated the present appellant. The present appellant has
lodged the report on 3.10.2003 against the deceased relating to
her misbehavior. Learned counsel further submits that on the
date of alleged incident, the appellant was juvenile and below
the age of 18 years but the Court below has disbelieved the
claim of the appellant. Conviction by the Sessions Judge to the
juvenile is apparently and in the absence of any credible and
clinching evidence, conviction and sentence of the appellant is
not sustainable under the law.
9. On the other hand, learned counsel for the
State/respondent supported the judgment impugned.
10. In order to appreciate the contentions of the parties, I
have examined the material available on record. As regards the
age of the appellant is concerned, present offence took place
on 27.4.2004 and according to inquiry conducted by the trial
Court relating to age of the appellant, his date of birth was
noticed as 15.3.85 and at the time of incident he was aged
about more than 18 years. The finding has not been challenged
by the appellant and it reached into finality.
11. The appellant was married with deceased Prema Bai in the
year 2003 and she died within 7 years of her marriage on
27.4.2004 as a result of hanging in the house of the appellant
in abnormal circumstances is not disputed, otherwise
established by the statement of Smt.Harihar Bai (PW-1),
Ku.Manjulata (PW-2), G.S.Bhaskar (PW-3), Malik Ram Tandon (PW-
4), merg intimation (Exs.P/6 and 8), F.I.R. (Ex.P/12), inquest
report (Ex.P/4), statement of Dr.R.K.Divya (PW-13) and autopsy
report (Ex.P/5). On 27.4.2004 the deceased committed suicide by
hanging herself and she died as a result of hanging. Cause of
death was due to asphyxia.
12. The present appellant has taken specific defence of
misbehavior and insanity of the deceased and has lodged
written report (Ex.D/2) which is admitted by the defence
witness A.Tirki (DW-7) that he has received written report on
3.10.2003 and also admitted that he has directed the appellant
for treatment of his wife but he has not taken any action on
the basis of such report. Ex.D/2 is written report. But, it is
a matter of surprise that no action has been taken by the
police even they have not care to record Rojnamcha of the same.
In Ex.D/2 the appellant has not mentioned that even the
deceased refused to maintain matrimonial relation. The present
appellant has examined himself as defence witness and
specifically deposed that as a result of resistance and
misbehavior of the deceased, he has not maintain physical
relation with the deceased. Autopsy was conducted by
Dr.R.K.Divya (PW-13) who has noticed that size of uterus was
normal and no external injury was found over the private part
of the deceased but nothing has been asked by the defence
relating to presence of hymen or anything which would show that
marriage has not been consumed. It shows that the appellant has
not consumed the marriage is admittedly false defence though
prosecution cannot take help of weakness of defence and the
prosecution is required to prove its case beyond all shadow of
doubt and requires to stand on its own leg.
13. Smt.Harihar Bai (PW-1) mother of the deceased has deposed
that just after marriage the accused persons used to demand
colour television and motorcycle and used to torture Prema Bai
and even they do not provide proper meal to her daughter. When
she came back to her maternal house after two days of her
marriage then even she told to her mother that their in-law’s
and relatives used to quarrel with her and demands television
and motorcycle. She has also deposed that when she went to the
house of the appellant with her daughter then they also
demanded colour television and motorcycle, then she called some
persons of the Village Gumiya where the appellant and her
relatives were residing and narrated the incident to them. She
has also deposed that before 20 to 25 days of the incident she
took the deceased to her house for festival and again on
25.4.2004 she went along with deceased to the house of the
appellant where the appellant and his relatives have quarreled
with her and again demanded motorcycle and colour television
and threat her that if she will not provide colour television
and motorcycle then she will see dead body of her daughter. She
left the deceased in the house of the appellant and came back
to her house. On 27.4.2004, she came to know that her daughter
had committed suicide. Ku. Manjulata (PW-2) sister of the
deceased has also corroborated the statement of her mother
Smt.Harihar Bai (PW-1). G.S.Bhaskar (PW-3) brother-in-law,
Malik Ram Tandon (PW-4), maternal uncle of the deceased,
Ghasiram (PW-5), brother-in-law of the deceased, Phulsai (PW-7)
grandfather of the deceased, Manharan Singh (PW-8) grandmother
of the deceased and Jagmohan (PW-9) neighbour of father of the
deceased have deposed that the appellant, father, mother and
other relatives used to demand motorcycle, television and other
articles and used to commit cruelty and torture upon the
deceased. The appellant has examined himself as defence witness
but he has admitted that on 25.4.2004 his wife was not present
in his house and she was at her mother house. The other defence
witnesses have deposed that Bharat was present at the time of
incident and Bharat who is son-in-law of the co-accused Daulat
Ram did not frequently visit the house of Daulat Ram. He is not
connected anything with the incident. Other witnesses have also
deposed that according to their information, the accused
persons have not demanded dowry but in their cross-examination,
they were having no knowledge about the incident.
14. In the present case, the deceased was died within one year
of her marriage in abnormal circumstances in the house of the
appellant.
15. Learned counsel for the appellant also argued and attacked
upon the propriety of the investigation on the ground that the
present investigating officer Emil Lakda (PW-20) has
specifically deposed that he has started investigation on
30.4.2004 and registered the offence on 29.4.2004 vide Ex.P/12.
He has also admitted that on 29.4.2004 or 30.4.2004, relatives
of the deceased have not lodged any report and also admitted
that he used to investigate the offence in accordance with law.
Learned counsel further argued that the investigating officer
recorded the statements of the witnesses whose residence are 50
to 100 km. away from police chowki. He has admitted in para-4
of his evidence that he has recorded the statements at police
chowki Hardi Bazaar.
16. Virtually defence has tried to show that alleged F.I.R.
(Ex.P/12) has been lodged on 30.4.2004, then how it is possible
for the investigating officer to record the statements of the
witnesses under Section 161 of the Code on 29.4.2004. Present
F.I.R. (Ex.P/12) is based on the F.I.R. registered under 0/2004
by the investigating officer on 29.4.2004 and on 29.4.2004
after recording the F.I.R. the investigating officer has
recorded the statements of the witnesses. The investigating
officer has not committed any illegality or any departure from
the law or rules when all the witnesses were present at police
chowki Hardi Bazaar. The investigating officer was under
obligation to record the statements of the witnesses on same
day which he has done.
17. In the present case, in order to establish the charge of
Section 304-B of the Indian Penal Code, the prosecution is
required to prove the demand of dowry `soon before the death of
Pushpa Bai’. Pushpa Bai died on 27.4.2004 as a result of
hanging in the house of the present appellant who is husband of
the deceased within one year of her marriage. Smt.Harihar Bai
(PW-1) mother of the deceased has specifically stated in para-6
of her evidence that just before two days the deceased came
back to the house of the appellant where they threatened the
deceased and her mother in connection with demand of dowry and
she committed suicide within two days.
18. In order to prove demand of dowry soon before her death,
there must be nexus between demand of dowry and alleged
commission of suicide of the deceased. In the matter of Prem
Kunwar v. State of Rajasthan1, the Apex Court has held that for
raising a presumption of dowry death under section 113-B of the
Evidence Act there must be proximity and live-link between the
effect of cruelty based on dowry demand and the concerned
death. Para 12 of the said judgment reads as under:-
“12. A conjoint reading of Section 113-B of the
Evidence Act and Section 304-B, IPC shows that
there must be material to show that soon before
her death the victim was subjected to cruelty or
harassment. Prosecution has to rule out the
possibility of a natural or accidental death so as
to bring it within the purview of the `death
occurring otherwise than in normal circumstances’.
The expression `soon before’ is very relevant
where Section 113-B of the Evidence Act and
Section 304-B, IPC are pressed into service.
Prosecution is obliged to show that soon before
the occurrence there was cruelty or harassment and
only in that case presumption operates. Evidence
in that regard has to be led by prosecution. `Soon
before’ is a relative term and it would be depend
upon circumstances of each case and no strait-
jacket formula can be laid down as to what would
constitute a period of soon before the occurrence.
It would be hazardous to indicate any fixed
period, and that brings in the importance of a
proximity test both for the proof of an offence of
dowry death as well as for raising a presumption
under Section 113-B of the Evidence Act. The
expression `soon before her death’ used in the
substantive Section 304-B, IPC and Section 113-B
of the Evidence Act is present with the idea of
proximity test. No definite period has been
indicted and the expression `soon before’ is not
defined. A reference to expression `soon before’
used in Section 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 or 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 a proximate 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.”
19. In the present case statements of the witnesses supported
by the prompt lodged F.I.R. (Ex.P/12) is sufficient for drawing
inference that the accused has demanded motorcycle and
committed cruelty and torture upon the deceased even just after
two days before the death of the deceased and as a result of
such cruelty and torture, no option except to end of her life
was left to the deceased and deceased has ended her life by
committing suicide. The alleged act of torture and cruelty is
independently punishable offence under Section 498-A of the
Indian Penal Code.
20. After appreciating the evidence available on record,
learned Court below has acquitted other co-accused on the
ground that evidence adduced by the prosecution was not
sufficient to warrant conviction against them and has convicted
and sentenced the present appellant as aforementioned.
Conviction and sentence of the appellant is based on credible
and clinching evidence sustainable under the law. As a result
of cruelty, one young woman i.e. wife has ended her life. The
sentence awarded by the Court below is neither excessive nor
unjust. I do not find any illegality or infirmity in the
judgment impugned.
21. For the foregoing reasons, the appeal has no merit, same
is liable to be dismissed and is accordingly dismissed.
JUDGE