{"id":26533,"date":"2009-09-11T00:00:00","date_gmt":"2009-09-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shailendra-kumar-vs-state-of-chhattisgarh-on-11-september-2009"},"modified":"2018-08-17T00:01:24","modified_gmt":"2018-08-16T18:31:24","slug":"shailendra-kumar-vs-state-of-chhattisgarh-on-11-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shailendra-kumar-vs-state-of-chhattisgarh-on-11-september-2009","title":{"rendered":"Shailendra Kumar vs State Of Chhattisgarh on 11 September, 2009"},"content":{"rendered":"<div class=\"docsource_main\">Chattisgarh High Court<\/div>\n<div class=\"doc_title\">Shailendra Kumar vs State Of Chhattisgarh on 11 September, 2009<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n            HIGH COURT OF CHATTISGARH AT BILASPUR       \n\n\n\n\n               Criminal Appeal No.715 of 2007\n\n\n\n\n                   1.   Shailendra   Kumar\n\n                    2.   Jawla  Prasad\n\n                    3.   Smt   Shashi  Tiwari\n                                         ...Petitioners\n\n\n\n                           Versus\n\n\n                    State  of Chhattisgarh\n                                        ...Respondents\n\n\n\n\n          (APPEAL UNDER SECTION 374 OF THE Cr.P.C.)    \n\n\n\n\n\n\n\n!     Shri Surendra Singh, Senior counsel with Shri Tarun\n      Dadsena, counsel for the appellants\n\n^     Shri  Akhil Mishra, Deputy Government Advocate  for  the\n      State\/respondent\n\n\n\nHonble Mr. T.P. Sharma, J \n\n\n\n\n       Dated:11\/09\/2009\n\n\n\n:       Judgment\n\n\n                          JUDGMENT\n<\/pre>\n<p>             (Delivered on 11th September, 2009)<\/p>\n<p>  1.   Challenge in this appeal is the legality and propriety<br \/>\n     of the judgment of conviction and order of sentence dated<br \/>\n     3.8.2007 passed by the First Additional Sessions  Judge,<br \/>\n     Bilaspur, in Sessions Trial No.21\/2007 whereby and whereunder<br \/>\n     learned First Additional Sessions Judge after holding the<br \/>\n     appellants guilty for the offence punishable under Section<br \/>\n     304B of the Indian Penal Code for commission of dowry death<br \/>\n     sentenced them to undergo rigorous imprisonment for 10 years.\n<\/p>\n<p>  2.    Judgment  of  conviction and  order  of  sentence  is<br \/>\n     challenged  on the ground that without there  being  any<br \/>\n     evidence of torture and cruelty soon before the death of the<br \/>\n     deceased, learned Court below has convicted and sentenced the<br \/>\n     appellants  as  aforementioned  and  thereby   committed<br \/>\n     illegality.\n<\/p>\n<p>  3.    Case  of  the prosecution, in brief, is that deceased<br \/>\n     Neera Tiwari was married to appellant No.1 Shailendra Kumar<br \/>\n     and appellants No.2 and 3 are father-in-law and mother-in-law<br \/>\n     of the deceased. Marriage between the deceased and appellant<br \/>\n     No.1 was performed on 30.5.2006 in Ratanpur Mahamaya Temple.<br \/>\n     She committed suicide in the house of the appellants  by<br \/>\n     pouring kerosene upon her and setting herself on fire on<br \/>\n     9.8.2006. Merg intimation was recorded vide Ex.P\/9 at the<br \/>\n     instance of appellant No.2 on 10.8.2006. Father  of  the<br \/>\n     deceased also lodged written compliant vide Ex.P\/2 in which<br \/>\n     it  has been mentioned that the appellants have demanded<br \/>\n     dowry, committed cruelty and torture upon her daughter and as<br \/>\n     a result of such torture and cruelty, she committed suicide.<br \/>\n     After summoning the witnesses vide Exs. P\/1 and P\/4, inquest<br \/>\n     over  the  dead  body was prepared vide Ex.P\/3.  Plastic<br \/>\n     container, burn piece of clothes, broken pieces of bangles<br \/>\n     and match stick were recovered from the spot vide Ex.P\/5.<br \/>\n     Death body was sent for autopsy vide Ex.P\/7. Autopsy was<br \/>\n     conducted by Dr.Vijay Kumar Verma vide Ex.P\/6. Smell  of<br \/>\n     kerosene was coming from dead body, burn injuries were found.<br \/>\n     Brain membrane was congested, carbon particles were present<br \/>\n     incise brochia and lungs. Burn was ante-mortem and cause of<br \/>\n     death was shocked as a result of excessive burn and toximiya.<br \/>\n     Accused were arrested vide Exs.P\/8, P\/10 and P\/11. Spot map<br \/>\n     was prepared by patwari vide Ex.P\/13. F.I.R. was lodged vide<br \/>\n     Ex.P\/16. Investigating officer has also prepared spot map<br \/>\n     vide Ex.P\/17.\n<\/p>\n<p>  4.   Statements of the witnesses were recorded under Section<br \/>\n     161 of the Code of Criminal Procedure, 1973 (in short `the<br \/>\n     Code&#8217;). After completion of investigation, charge sheet was<br \/>\n     filed  in the Court of Judicial Magistrate, First Class,<br \/>\n     Bilaspur, who in turn committed the case to the Court of<br \/>\n     Sessions Judge, Bilaspur from where First Additional Sessions<br \/>\n     Judge, Bilaspur received the same on transfer for trial.\n<\/p>\n<p>  5.    In order to prove the guilt of the appellants\/accused,<br \/>\n     the  prosecution has examined as many as  15  witnesses.<br \/>\n     Statements of the accused\/ appellants were also recorded<br \/>\n     under Section 313 of the Code where they denied the material<br \/>\n     appearing against them. The appellants have taken specific<br \/>\n     defence that prior to marriage, the deceased was working as<br \/>\n     Nurse and when she left her service after marriage, she was<br \/>\n     distressed, therefore she committed suicide.\n<\/p>\n<p>  6.    I have heard Shri Surendra Singh, Senior counsel with<br \/>\n     Shri Tarun Dadsena, counsel for the appellants and Shri Akhil<br \/>\n     Mishra, Deputy Government Advocate for the State\/respondent<br \/>\n     and perused the judgment impugned and record of the Court<br \/>\n     below.\n<\/p>\n<p>  7.    Learned counsel for the appellants vehemently  argued<br \/>\n     that though deceased Neera Tiwari, wife of appellant No.1 and<br \/>\n     daughter-in-law of appellants No.2 and 3  has  committed<br \/>\n     suicide on 9.8.2006 in the house of the appellants within 2<br \/>\n     months  and 8 days of her marriage, she died in abnormal<br \/>\n     circumstances within 7 years of her marriage, but these facts<br \/>\n     are not sufficient for drawing inference that the appellants<br \/>\n     have committed torture and cruelty in connection with demand<br \/>\n     of  dowry and that too soon before her death. This is  a<br \/>\n     criminal case, the prosecution is required to prove  all<br \/>\n     essential ingredients of the offence beyond all shadow of<br \/>\n     doubt. Only on the ground of death within 3 months under<br \/>\n     abnormal  circumstances  is not sufficient  for  drawing<br \/>\n     inference that the present appellants are the persons who<br \/>\n     have committed &#8220;dowry death&#8221; of the deceased. This was a case<br \/>\n     of &#8220;Samuhik Vivah&#8221; in the temple where several persons have<br \/>\n     married in a common platform in the presence of responsible<br \/>\n     persons of the society with a view to avoid any transaction<br \/>\n     of dowry. Learned counsel further argued that evidence of the<br \/>\n     relatives of the deceased reveals that before marriage the<br \/>\n     appellants had demanded motor-cycle for appellant No.1 which<br \/>\n     they  have  provided before the marriage and  they  have<br \/>\n     satisfied the dowry demand. After such satisfaction even<br \/>\n     there was no occasion for further demand because daughter of<br \/>\n     Shiv Kumar Tiwari (PW-3) and sister or daughter of other<br \/>\n     relatives  have  committed suicide and ended  her  life,<br \/>\n     therefore, maternal relatives of the deceased have deposed<br \/>\n     against the appellants. Statements given under sentiments or<br \/>\n     in ground of announce is not a true statement admissible<br \/>\n     under the law. In the absence of such demand, cruelty and<br \/>\n     torture and that too soon before death of the deceased, all<br \/>\n     appellants are entitled for acquittal. Learned counsel also<br \/>\n     argued that evidence of relatives of the deceased reveals<br \/>\n     that husband of the deceased i.e. appellant No.1 used to<br \/>\n     drink liquor and used to beat her excludes the possibility of<br \/>\n     cruelty and torture by appellants No.2 and 3. At the worst,<br \/>\n     it  appears from the evidence that the deceased was  not<br \/>\n     satisfied with the behavior of appellant No.1 who used to<br \/>\n     drink and beat her, therefore, she ended her life and the<br \/>\n     same does not fall within the category of torture and cruelty<br \/>\n     in connection with demand of dowry.\n<\/p>\n<p>  8.    Learned counsel placed reliance in the matter of <a href=\"\/doc\/1263837\/\">Kans<br \/>\n     Raj v. State of Punjab and others<\/a>1 in which the Apex Court<br \/>\n     has held that in-laws of deceased cannot be roped in only on<br \/>\n     ground of being close relations of husband of deceased. Overt<br \/>\n     acts attributed to them should be proved beyond reasonable<br \/>\n     doubt. Learned counsel further placed reliance in the matter<br \/>\n     of Sharad Birdhichand Sarda v. State of Maharashtra2 in which<br \/>\n     it has been held by the Apex Court that close relatives of<br \/>\n     the victim have a tendency to exaggerate or add facts. The<br \/>\n  Court  should  examine their evidence with great  care  and<br \/>\n     caution. Learned counsel also placed reliance in the matter<br \/>\n     of Salamat Ali and another v. State of Bihar3 in which it has<br \/>\n     been held by the Apex Court that in the absence of clear and<br \/>\n     cogent evidence involving parents of accused in demands of<br \/>\n     dowry, evidence of prosecution witness stating that there<br \/>\n     were frequent quarrels, but only between husband and wife,<br \/>\n     parents are not liable for any conviction.\n<\/p>\n<p>  9.   On the other hand, learned State counsel supported the<br \/>\n     judgment impugned and argued that this is a case of dowry<br \/>\n     death where the appellants i.e. husband and relatives of the<br \/>\n     husband had committed dowry death of the deceased within 2<br \/>\n     months and 8 days of her marriage. Learned counsel further<br \/>\n     argued that the prosecution has adduced sufficient evidence<br \/>\n     to show that the appellants are the persons who have demanded<br \/>\n     motor-cycle and after receiving         motor-cycle they have<br \/>\n     again  demanded Rs.50,000\/- and when the parents of  the<br \/>\n     deceased failed to satisfy such demand, then they committed<br \/>\n     cruelty and torture upon the deceased and as a result of such<br \/>\n     torture and cruelty she committed suicide and took drastic<br \/>\n     action of ending her life. No person including a woman of<br \/>\n     common prudence will end his\/her life on the trifle ground<br \/>\n     unless he\/she was compelled to take such action. Learned<br \/>\n     counsel  further argued that the Court below has rightly<br \/>\n     convicted the appellants and sentenced as aforementioned and<br \/>\n     taking into consideration the facts and circumstances of the<br \/>\n     case  they  do not deserve any sympathy. Conviction  and<br \/>\n     sentence imposed upon the appellants are just and proper.\n<\/p>\n<p>  10.  In order to appreciate the contentions of the parties, I<br \/>\n     have  examined  the evidence adduced on  behalf  of  the<br \/>\n     prosecution. In the present case, it is undisputed  that<br \/>\n     deceased Neera Tiwari was married to appellant  No.1  on<br \/>\n     30.5.2006  at  Ratanpur Temple under social  arrangement<br \/>\n     (Samuhik Vivah). Appellants No.2 and 3 were father-in-law and<br \/>\n     mother-in-law of the deceased. She committed suicide by burn<br \/>\n     in  the  house of the appellants on 9.8.2006. Death  was<br \/>\n     abnormal by suicide within 7 years of her marriage, otherwise<br \/>\n     also established by the statements of Dr.Vijay Kumar Verma<br \/>\n     (PW-7), autopsy report (Ex.P\/6) that deceased  Neera Tiwari<br \/>\n     died as a result of burn injuries. Burn was ante-mortem and<br \/>\n     cause of death was shocked as a result of excessive burn and<br \/>\n     toximiya.\n<\/p>\n<p>  11.  Dowry death has been defined under Section 304B of the<br \/>\n     Indian Penal Code which reads as under:-\n<\/p>\n<blockquote><p>          &#8220;304B. Dowry death.-(1) Where the death of a  woman<br \/>\n          is  caused by any burns or bodily injury or  occurs<br \/>\n          otherwise  than  under normal circumstances  within<br \/>\n          seven  years of her marriage and it is  shown  that<br \/>\n          soon  before her death she was subjected to cruelty<br \/>\n          or harassment by her husband or any relative of her<br \/>\n          husband for, or in connection with, any demand  for<br \/>\n          dowry,  such  death shall be called &#8220;dowry  death&#8221;,<br \/>\n          and  such  husband or relative shall be  deemed  to<br \/>\n          have caused her death.\n<\/p><\/blockquote>\n<blockquote><p>               Explanation.-For  the  purpose  of  this  sub-<br \/>\n          section, &#8220;dowry&#8221; shall have the same meaning as  in<br \/>\n          section 2 of the Dowry Prohibition Act, 1961 (28 of<br \/>\n          1961).\n<\/p><\/blockquote>\n<blockquote><p>               (2)  Whoever  commits  dowry  death  shall  be<br \/>\n          punished  with imprisonment for a term which  shall<br \/>\n          not  be  less than seven years but which may extend<br \/>\n          to imprisonment for life.\n<\/p><\/blockquote>\n<p>  12.  Section 113-B of the Evidence Act provides presumption<br \/>\n     as to dowry death which reads as under:-\n<\/p>\n<blockquote><p>          &#8220;113-B.  When the question is whether  a  person<br \/>\n          has committed the dowry death of a woman and  it<br \/>\n          is  shown that soon before her death such  woman<br \/>\n          had been subjected by such person to cruelty  or<br \/>\n          harassment  for,  or  in  connection  with,  any<br \/>\n          demand  for dowry, the Court shall presume  that<br \/>\n          such person had caused the dowry death.\n<\/p><\/blockquote>\n<blockquote><p>                 Explanation.-For  the  purpose  of   this<br \/>\n          section,  &#8220;dowry  death&#8221;  shall  have  the  same<br \/>\n          meaning  as in S.304BG of the Indian Penal  Code<br \/>\n          (45 of 1860).\n<\/p><\/blockquote>\n<p>  13.  Word cruelty has also been explained under Section 498A<br \/>\n     of the Indian Penal Code which reads as under:-<br \/>\n        &#8220;498A.  Husband  or relative of husband  of  a  woman<br \/>\n        subjecting   her  to  cruelty.-Whoever,   being   the<br \/>\n        husband  or the relative of the husband of  a  woman,<br \/>\n        subjects  such  woman to cruelty  shall  be  punished<br \/>\n        with  imprisonment  for a term which  may  extend  to<br \/>\n        three years and shall also be liable to fine.\n<\/p>\n<p>          Explanation.-for  the  purpose  of  this   section,<br \/>\n        &#8220;cruelty&#8221; means-\n<\/p>\n<p>        (a)  any wilful conduct which is of such a nature as is<br \/>\n        likely to drive the woman to commit suicide or to cause grave<br \/>\n        injury or danger to life, limb or heath (whether mental or<br \/>\n        physical) of the woman; or<\/p>\n<p>        (b)  harassment of the woman where such harassment is with a<br \/>\n        view to coercing her or any person related to her tom et any<br \/>\n        unlawful demand for any property or valuable security or is<br \/>\n        on account of failure by her or any person related to her to<br \/>\n        meet such demand.\n<\/p>\n<p>  14.   For  decision of this case, the substantial  question<br \/>\n     involve is whether the deceased was subjected to cruelty and<br \/>\n     torture soon before her death in connection with demand of<br \/>\n     dowry.  The prosecution has adduced evidence of maternal<br \/>\n     relatives of the deceased. Kumaribai Tiwari (PW-1) mother of<br \/>\n     the deceased has deposed that marriage of her daughter was<br \/>\n     performed at Ratanpur Mahamaya Temple. Just two days before<br \/>\n     the marriage, appellants No.1 and 2 demanded two-wheeler then<br \/>\n     they sold some land and provided motor-cycle. After one month<br \/>\n     of the marriage, deceased Neera Bai telephoned to her nephew<br \/>\n     Rajesh Tiwari and told that there is danger to her life and<br \/>\n     she called them. Rajesh Tiwari informed them and then Rajesh<br \/>\n     Tiwari and her husband Shiv Kumar Tiwari went to the house of<br \/>\n     the appellants where both advised to the appellants that they<br \/>\n     should not beat his daughter. They also requested to permit<br \/>\n     the deceased to go with them, but the appellants refused<br \/>\n     their request. After 15 days, appellant No.1 came to her<br \/>\n     house  with  the deceased where appellant No.1  demanded<br \/>\n     Rs.50,000\/- and when she shown her inability, at that time<br \/>\n     appellant No.1 annoyed. After sometime at the time of Raksha<br \/>\n     Bandan festival appellant No.1 came to her village and again<br \/>\n     demanded money and again annoyed. On the morning of Raksha<br \/>\n     Bandan she came to know that her daughter has burn. She went<br \/>\n     to the hospital. Deceased died as a result of cruelty and<br \/>\n     torture committed by the appellants. Shiv Kumar Tiwari (PW-\n<\/p>\n<p>     3),  father  of the deceased, has also corroborated  the<br \/>\n     statement of Kumaribai Tiwari (PW-1). Rajesh Tiwari (PW-2)<br \/>\n     cousin brother of the deceased has also corroborated the<br \/>\n     statement of Kumaribai Tiwari (PW-1). Rajesh Tiwari (PW-5)<br \/>\n     S\/o Shri Chhedilal Tiwari, cousin brother of the deceased has<br \/>\n     also corroborated the same thing. He has deposed in  his<br \/>\n     evidence that one day deceased telephoned him and told that<br \/>\n     appellant No.1 used to consume liquor and used to assault<br \/>\n     her. She also requested him that they immediately took her,<br \/>\n     otherwise  members of in-laws house will kill her.  They<br \/>\n     advised and come back. He has also deposed that on the demand<br \/>\n     of the appellants, father of the deceased sold the land and<br \/>\n     gave C.D.Down Hero Honda motor cycle.\n<\/p>\n<p>  15.  Admittedly, Kumaribai Tiwari (PW-1), Rajesh Tiwari (PW-\n<\/p>\n<p>     2), Shiv Kumar Tiwari (PW-3), Dev Kumar Pathak (PW-4) and<br \/>\n     Rajesh Tiwari (PW-5) are mother, father and brothers of the<br \/>\n     deceased. As held by the Apex Court in the matter of Sharad<br \/>\n     (supra), in view of the close relationship and affection any<br \/>\n     person in the position of the witness would naturally have a<br \/>\n     tendency to exaggerate or add facts which may not have been<br \/>\n     stated to them at all. Not that this is done consciously but<br \/>\n     even unconsciously the love and affection for the deceased<br \/>\n     would create a psychological hatred against the supposed<br \/>\n     murderer  and, therefore, the Court has to examine  such<br \/>\n     evidence with very great care and caution.  Para 48 of the<br \/>\n     said judgment reads as under:-\n<\/p>\n<blockquote><p>          &#8220;48.   Before  discussing  the  evidence  of   the<br \/>\n          witnesses  we  might  mention  a  few  preliminary<br \/>\n          remarks against the background of  which the  oral<br \/>\n          statements  are to be considered. All  persons  to<br \/>\n          whom  the  oral statements are said to  have  been<br \/>\n          made  by Manju when she visited Beed for the  last<br \/>\n          time,  are  close  relatives and  friends  of  the<br \/>\n          deceased.  In  view of the close relationship  and<br \/>\n          affection  any  person  in  the  position  of  the<br \/>\n          witness   would  naturally  have  a  tendency   to<br \/>\n          exaggerate  or add facts which may not  have  been<br \/>\n          stated  to  them  at all. Not that  this  is  done<br \/>\n          consciously  but even unconsciously the  love  and<br \/>\n          affection   for  the  deceased  would   create   a<br \/>\n          psychological hatred against the supposed murderer<br \/>\n          and,  therefore,  the Court has  to  examine  such<br \/>\n          evidence with very great care and caution. Even if<br \/>\n          the witnesses were speaking a part of the truth or<br \/>\n          perhaps the whole of it, they would be guided by a<br \/>\n          spirit  of revenge or nemesis against the  accused<br \/>\n          person and in this process certain facts which may<br \/>\n          not or could not have been stated unconsciously by<br \/>\n          the witnesses in order to see that the offender is<br \/>\n          punished. This is human psychology and no one  can<br \/>\n          help it.\n<\/p><\/blockquote>\n<p>  16.   The  aforesaid witnesses are close relatives  of  the<br \/>\n     deceased, but their evidence cannot be discarded only on the<br \/>\n     ground that they are close relatives. Only it requires minute<br \/>\n     scrutiny and if the separation of exaggeration and falsehood<br \/>\n     from truth would possible, then the Court is required to<br \/>\n     separate the truth from falsehood.\n<\/p>\n<p>  17.   In  the matter of Salamat (supra), the Apex Court has<br \/>\n     held that in the absence of clear and cogent evidence against<br \/>\n     the appellants, conviction of the appellants not proper. Para<br \/>\n     3 of the said judgment reads as under:-\n<\/p>\n<blockquote><p>          &#8220;3.  By  the conviction of Salim Ahmed, it  stands<br \/>\n          confirmed  that the deceased met a suicidal  death<br \/>\n          and  that  Salim  Ahmed was  responsible  for  it,<br \/>\n          whether by himself or conjointly with others.  The<br \/>\n          only  point  to  be examined is whether  there  is<br \/>\n          clear  and cogent evidence to involve the  parents<br \/>\n          in   the  demands  of  dowry  made  or  were  they<br \/>\n          otherwise  responsible for inflicting any  cruelty<br \/>\n          on  the  deceased. We have been taken through  the<br \/>\n          relevant  portions  of the  evidence  led  by  the<br \/>\n          prosecution. Uniformly every witness has said that<br \/>\n          the   family   members  of   the   husband,   i.e.<br \/>\n          Sasuralwale  had been making demands of  dowry  in<br \/>\n          the form of television and scooter. The nature  of<br \/>\n          the  demand  is  some indication.  The  demand  of<br \/>\n          scooter predominantly must have been raised by the<br \/>\n          husband. It cannot be expected that the father-in-<br \/>\n          law  would  be demanding a scooter for himself  or<br \/>\n          that  the  mother-in-law needed it  for  her  use.<br \/>\n          Different   considerations,  however,  could,   in<br \/>\n          certain  events,  apply to the television  demand,<br \/>\n          but  here again, it predominants that the  husband<br \/>\n          wanted it more than his parents. Evidence of P.W.1<br \/>\n          is  clear  on this point that there were  frequent<br \/>\n          quarrels,  but only between husband and  wife.  In<br \/>\n          other  words, the parents had no part to  play  in<br \/>\n          the  quarrels  between  the  spouses.  P.W.7,  the<br \/>\n          father  of  the  deceased also had said  that  his<br \/>\n          daughter  had  told him that the demand  had  been<br \/>\n          made by the husband, but he had then not taken  it<br \/>\n          seriously.  Thus,  the  allegations  against   the<br \/>\n          appellants are general in nature attributed to the<br \/>\n          husband&#8217;s   family.  They  have  been   identified<br \/>\n          because they were members of his family. It is not<br \/>\n          clear on the record as besides them who else  were<br \/>\n          members of the family. It thus appears to us  that<br \/>\n          in  the  absence of clear and pointed evidence  it<br \/>\n          would be unsafe to maintain the conviction of  the<br \/>\n          parents,  on vague allegations that the demand  of<br \/>\n          dowry was made by the husband&#8217;s family members. In<br \/>\n          this  view  of  the matter, we would record  their<br \/>\n          acquittal.&#8221;\n<\/p><\/blockquote>\n<p>  18.  While dealing with the question of tendency of relatives<br \/>\n     of the deceased in the matter of Kans (supra), the Apex Court<br \/>\n     has held that in-laws of deceased cannot be roped in only on<br \/>\n     ground of being close relations of husband of deceased. Over<br \/>\n     acts attributed to them should be proved beyond reasonable<br \/>\n     doubt. Para 5 of the said judgment reads as under:-\n<\/p>\n<blockquote><p>          &#8220;5&#8230;&#8230;In the light of the evidence in  the  case<br \/>\n          we find substance in the submission of the learned<br \/>\n          counsel for the defence that respondents  3  to  5<br \/>\n          were roped in the case only on the ground of being<br \/>\n          close relations of respondent No.2, the husband of<br \/>\n          the  deceased. For the fault of the  husband,  the<br \/>\n          in-laws  or  the  other relations cannot,  in  all<br \/>\n          cases,  be  held to be involved in the  demand  of<br \/>\n          dowry.  In  cases where such accusation are  made,<br \/>\n          the  over  acts attributed to persons  other  than<br \/>\n          husband   are   required  to  be   proved   beyond<br \/>\n          reasonable   doubt.   By  mere   conjectures   and<br \/>\n          implications such relations cannot be held  guilty<br \/>\n          for  the  offence  relating  to  dowry  deaths.  A<br \/>\n          tendency has, however, developed for roping in all<br \/>\n          relations of the in-laws of the deceased wives  in<br \/>\n          the   maters  of  dowry  deaths  which,   if   not<br \/>\n          discouraged, is likely to affect the case  of  the<br \/>\n          prosecution  even  against the real  culprits.  In<br \/>\n          their   over  enthusiasm  and  anxiety   to   seek<br \/>\n          conviction for maximum people, the parents of  the<br \/>\n          deceased have been found to be making efforts  for<br \/>\n          involving other relations which ultimately  weaken<br \/>\n          the  case of the prosecution even against the real<br \/>\n          accused as appears to have happened in the instant<br \/>\n          case.&#8221;\n<\/p><\/blockquote>\n<p>  19.    In  the light of decisions of the Apex Court in  the<br \/>\n     matters of Sharad &amp; Kans (supra), minute scrutiny of the<br \/>\n     evidence of close relatives is required. Kumaaribai Tiwari<br \/>\n     (PW-1) has specifically deposed that her nephew Rajesh Tiwari<br \/>\n     and her husband went to the house of the appellants after<br \/>\n     receiving telephone call from her daughter. Appellant No.1<br \/>\n     came  two times to her village and demanded Rs.50,000\/-.<br \/>\n     Appellant No.1 also used to beat her daughter after consuming<br \/>\n     liquor. In her detail cross-examination, she has stated that<br \/>\n     marriage of her daughter has performed in Adarsh Vivah and<br \/>\n     she knows that demand and receipt of dowry is a crime. She<br \/>\n     has denied the suggestion that the appellants No.1 and 2 have<br \/>\n     not demanded motor-cycle. She has also denied the suggestion<br \/>\n     that the deceased has not telephoned to Rajesh Tiwari and<br \/>\n     Rajesh  Tiwari and her husband have not advised  to  the<br \/>\n     appellants. She has also denied that after marriage at the<br \/>\n     instance of appellant No.1, deceased has left her service of<br \/>\n     nurse and she was perturbed and as a result of such mental<br \/>\n     problem, she committed suicide. Shiv Kumar Tiwari (PW-3)<br \/>\n     father  of  the deceased, has specifically deposed  that<br \/>\n     appellants  No. 1 and 2 came to his house  and  demanded<br \/>\n     Rs.50,000\/- and again appellant No.2 demanded Rs.50,000\/-. He<br \/>\n     has lodged written report (Ex.P\/2) on 10.8.2006 in which it<br \/>\n     has been specifically mentioned that the appellants have<br \/>\n     demanded motor-cycle and has given C.D.Dawn motor cycle.<br \/>\n     After marriage, appellant No.1 also demanded Rs.50,000\/-. He<br \/>\n     has  admitted  in para-9  of  his                 cross-\n<\/p>\n<p>     examination that he was in police service and he knows that<br \/>\n     demand  and  giving dowry is a crime. He has denied  the<br \/>\n     suggestion that who are unable to give dowry, performed the<br \/>\n     marriage in Adasrh Vivah system. He has also denied  the<br \/>\n     suggestion that appellants No.1 and 2 have not come to his<br \/>\n     house and demanded dowry. He has admitted in para-15 of his<br \/>\n     cross-examination that his daughter used to compel  that<br \/>\n     appellant No.1 used to consume liquor and used to beat her.<br \/>\n     Rajesh  Tiwari  (PW-5)  who has received  telephone  has<br \/>\n     specifically deposed that father of the deceased has given<br \/>\n     motor-cycle before the marriage of her daughter. He has given<br \/>\n     number of telephone. He has admitted in para-6 of his cross-<br \/>\n     examination  that  when they went to the  house  of  the<br \/>\n     appellants, his sister told him that appellant No.1 used to<br \/>\n     consume liquor and used to quarrel with her. She also told<br \/>\n     him that they immediately took her, otherwise appellant No.1<br \/>\n     will kill her.\n<\/p>\n<p>  20.   There  are some contradictions and omissions  in  the<br \/>\n     statements of the witnesses with their previous statements<br \/>\n     recorded by the police (Exs.D\/1 to D\/3). Shiv Kumar Tiwari<br \/>\n     (PW-3), father of the deceased, has deposed that after 15<br \/>\n     days of marriage of his daughter, appellants No.1 and 2 came<br \/>\n     to his village and demanded Rs.50,000\/-, but this evidence<br \/>\n     does not find place in his previous statement (Ex.P\/2). This<br \/>\n     part has not been supported by other witnesses, but other<br \/>\n     witnesses have deposed that after receiving telephone call,<br \/>\n     he went to the house of the appellants where he met with the<br \/>\n     appellants. Statement of Shiv Kumar Tiwari (PW-2) reveals<br \/>\n     that demand of Rs.50,000\/- was between appellants No.1 and 2,<br \/>\n     but he has exaggerated and tried to involve appellant No.3<br \/>\n     who is wife of appellant No.2.\n<\/p>\n<p>  21.  Incident took place between 2 months and 8 days of the<br \/>\n     marriage of deceased Neera Tiwari within a short span of her<br \/>\n     marriage and first demand of motor-cycle by appellants No.1<br \/>\n     and 2 even before the marriage shows tendency of demand of<br \/>\n     dowry by appellants No.1 and 2 which they continued even<br \/>\n     after marriage till the death of the deceased. The deceased<br \/>\n     has committed suicide in the house of the appellants on the<br \/>\n     day of Raksha Bandhan festival. Evidence of           day-to-<br \/>\n     day conversation, demand or cruelty made by the husband and<br \/>\n     his relatives are not normally possible.\n<\/p>\n<p>  22.  While dealing with the question of death soon before her<br \/>\n     death, the Apex Court in the matter of Baldev Singh v. State<br \/>\n     of Punjab4 has held that implies not much interval between<br \/>\n     concerned cruelty or harassment and death in question, there<br \/>\n     must be proximate and live link between the two. Para 13 of<br \/>\n     the said judgment reads as under:-\n<\/p>\n<blockquote><p>          &#8220;13.  A  conjoint reading of Section 113-B of  the<br \/>\n          Evidence  Act  and Section 304-B  IPC  shows  that<br \/>\n          there  must  be material to show that soon  before<br \/>\n          her  death the victim was subjected to cruelty  or<br \/>\n          harassment.  The prosecution has to rule  out  the<br \/>\n          possibility of a natural or accidental death so as<br \/>\n          to bring it within the purview of `death occurring<br \/>\n          otherwise  than  in  normal  circumstances&#8217;.   The<br \/>\n          expression  `soon before&#8217; is very  relevant  where<br \/>\n          Section 113-B of the Evidence Act and Section 304-<br \/>\n          B IPC are pressed into service. The prosecution is<br \/>\n          obliged  to  show that soon before the  occurrence<br \/>\n          there  was cruelty or harassment and only in  that<br \/>\n          case presumption operates. Evidence in that regard<br \/>\n          has to be led by the prosecution. `Soon before&#8217; is<br \/>\n          a  relative  term  and it would  depend  upon  the<br \/>\n          circumstances  of  each case and  no  straitjacket<br \/>\n          formula  can  be  laid  down  as  to  what   would<br \/>\n          constitute a period of soon before the occurrence.<br \/>\n          It  would  be  hazardous  to  indicate  any  fixed<br \/>\n          period,  and  that brings in the importance  of  a<br \/>\n          proximity test both for the proof of an offence of<br \/>\n          dowry  death  as well as for raising a presumption<br \/>\n          under  Section  113-B  of the  Evidence  Act.  The<br \/>\n          expression  `soon before her death&#8217;  used  in  the<br \/>\n          substantive Section 304-B IPC and Section 113-B of<br \/>\n          the  Evidence  Act  is present with  the  idea  of<br \/>\n          proximity  test.  No  definite  period  has   been<br \/>\n          indicated and the expression `soon before&#8217; is  not<br \/>\n          defined.  A  reference  to  the  expression  `soon<br \/>\n          before&#8217;  used in Section 114 Illustration  (a)  of<br \/>\n          the Evidence Act is relevant. It lays down that  a<br \/>\n          court  may  presume  that a  man  who  is  in  the<br \/>\n          possession  of  goods `soon  after  the  theft  is<br \/>\n          either the thief or has received the goods knowing<br \/>\n          them  to be stolen, unless he can account for  his<br \/>\n          possession&#8217;. The determination of the period which<br \/>\n          can come within the term `soon before&#8217; is left  to<br \/>\n          be  determined by the courts, depending upon facts<br \/>\n          and  circumstances of each case. Suffice, however,<br \/>\n          to  indicate  that  the expression  `soon  before&#8217;<br \/>\n          would normally imply that the interval should  not<br \/>\n          be   much   between  the  concerned   cruelty   or<br \/>\n          harassment  and the death in question. There  must<br \/>\n          be  existence of a proximate and live link between<br \/>\n          the  effect  of cruelty based on dowry demand  and<br \/>\n          the  concerned  death.  If  alleged  incident   of<br \/>\n          cruelty  is  remote in time and has  become  stale<br \/>\n          enough  not to disturb mental equilibrium  of  the<br \/>\n          woman concerned, it would be of no consequence.&#8221;\n<\/p><\/blockquote>\n<p>  23.   In  the  present  case, dowry was demanded  prior  to<br \/>\n     marriage by appellants No. 1 and 2 shows their greediness.<br \/>\n     Shiv Kumar Tiwari     (PW-3) has specifically deposed that<br \/>\n     all the appellants have demanded dowry of Rs.50,000\/- after<br \/>\n     marriage. Shiv Kumar Tiwari was responsible person for giving<br \/>\n     dowry or to satisfy the demand, but in Hindu Family, normally<br \/>\n     discussion take place with male members. In discussion or<br \/>\n     demand of dowry by mother-in-law of the deceased to father of<br \/>\n     the deceased is not common. The evidence of Shiv Kumar Tiwari<br \/>\n     relating  to  demand of dowry by appellant No.3  is  not<br \/>\n     supported by other independent sources, but statement reveals<br \/>\n     that appellants No. 1 and 2 have firstly demanded motor-cycle<br \/>\n     and subsequently they demanded Rs.50,000\/- and within short<br \/>\n     span of time the deceased committed suicide and that too on<br \/>\n     the festival of Raksha Bandan in the house of the appellants.\n<\/p>\n<p>  24.  In these circumstances, the only inference can be drawn<br \/>\n     that the appellants No.1 and 2 have committed cruelty and<br \/>\n     torture upon the deceased in connection with demand of dowry<br \/>\n     and as a result of such demand, no option except to end her<br \/>\n     life was left and she has taken drastic action for end of her<br \/>\n     life. The evidence adduced on behalf of the prosecution is<br \/>\n     sufficient for drawing inference of dowry death  against<br \/>\n     appellant No.1 Shailendra Kumar @ Shailu Tiwari (husband of<br \/>\n     the deceased) and appellant No.2 Jawla Prasad (father-in-law<br \/>\n     of  the deceased), but evidence adduced on behalf of the<br \/>\n     prosecution  is not sufficient for drawing inference  of<br \/>\n     commission of dowry death against appellant No.3 Smt.Shashi<br \/>\n     Tiwari. The suspicion, however, great cannot take place of<br \/>\n     evidence and only on the ground of suspicion, the conviction<br \/>\n     of appellant No.3 is not sustainable.\n<\/p>\n<p>  25.  After appreciating the evidence available on record, the<br \/>\n     Court below have convicted and sentenced the appellants as<br \/>\n     aforementioned. Conviction of appellants No.1 and 2  are<br \/>\n     sustainable under the law. As relates to the conviction of<br \/>\n     appellant No.3, her conviction is not based on reliable and<br \/>\n     clinching evidence. Her conviction is not sustainable under<br \/>\n     the law.\n<\/p>\n<p>  26.   As  regards the question of appellants No.1 and 2  is<br \/>\n     concerned, First Additional Sessions Judge has sentenced the<br \/>\n     appellants No.1 and 2 rigorous imprisonment for 10 years.<br \/>\n     Taking into consideration the death of bride within 2 months<br \/>\n     and 8 days of her marriage, sentence awarded to appellants<br \/>\n     No.1 and 2 is just and proper. I do not find any scope for<br \/>\n     interference in the judgment impugned.\n<\/p>\n<p>  27.  For the foregoing reasons, the appeal is partly allowed.<br \/>\n     Conviction and sentence of appellant No.1 namely, Shailendra<br \/>\n     Kumar @ Shailu Tiwari (husband of the deceased) and appellant<br \/>\n     No.2 namely, Jawla Prasad (father-in-law of the deceased) are<br \/>\n     hereby  maintained, however, conviction and sentence  of<br \/>\n     appellant No.3 namely, Smt.Shashi Tiwari is hereby set aside.<br \/>\n     She is acquitted of the charge of Section 304B of the Indian<br \/>\n     Penal  Code.  She is in custody. She be set  at  liberty<br \/>\n     forthwith, if not required in any other case.\n<\/p>\n<p>                                                    J U D G E<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Chattisgarh High Court Shailendra Kumar vs State Of Chhattisgarh on 11 September, 2009 HIGH COURT OF CHATTISGARH AT BILASPUR Criminal Appeal No.715 of 2007 1. Shailendra Kumar 2. Jawla Prasad 3. Smt Shashi Tiwari &#8230;Petitioners Versus State of Chhattisgarh &#8230;Respondents (APPEAL UNDER SECTION 374 OF THE Cr.P.C.) ! Shri Surendra Singh, Senior counsel with Shri [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[12,8],"tags":[],"class_list":["post-26533","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Shailendra Kumar vs State Of Chhattisgarh on 11 September, 2009 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shailendra-kumar-vs-state-of-chhattisgarh-on-11-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shailendra Kumar vs State Of Chhattisgarh on 11 September, 2009 - Free Judgements of Supreme Court &amp; 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