HIGH COURTOF CHHATTISGARH AT BILASPUR Division Bench Coram:Hon'ble Shri T.P. Sharma & Hon'ble Shri R.N. Chandrakar, JJ. </ Criminal Appeal No. 240 of 2009 ADpellant (in jail) Vs. Respondent Lalaram, son of Shri Ramadhar Satnami, aged about 30 years, resident of village Kotmisonar, Police Station Akaltara, District Janjgir-Champa (CG). State of Chhattisgarh through Police Station Akaltara, District Janjgir-Champa (CG). (Criminal Appeal under Section 374 (2) ofthe Cr.P.C.) Present: Mr. Abhay Tiwari, counsel forthe appellant. Mr. D.K. Gwalre, Govt. Advocate for the State. JUDGMENT (Deliveredon 13-12-2011) Per^LE. Sharma. J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 20-3-2009 passed by Additional Sessions Judge, Janjgir, District Janjgir-Champa (CG), in Sessions Trial No. 181 of 2008, whereby and whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of dowry death of his wife Nandini, convicted him under Sections 304 "% '.':B>^ ^l •,^'/ ^s^'" w (B) & 498-A of the IPC and sentenced him to undergo imprisonment for life. Conviction of the appellant is impugned on the ground that without any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per case of prosecution, deceased Nandini was married to present appellant on 21-5-2002. She was residing with her husband/appellant and her husband used to commit torture and cruelty in connection with demand of dowry. When she was residing in Jammu & Kashmir along with appellant, appellant also demanded dowry and committed torture and cruelty and in this connection she wrote a letter (inland letter) Ex.P/1 to her father Chhatram (PW/2). Deceased also lodged a repot in Police Station on 25-12-2007 relating to torture and cruelty of appellant vide Ex.P/17. On 28-4-2008 when deceased was residing with appellant, she received burninjuries in the house of appellant and she was immediately shifted to CIMS, Bilaspur and during treatment she died on 29-4-2008. Merg was recorded vide Ex.P/11. She was treated by bed-head ticket vide Ex.P/16. After summoning the witnesses vide Ex.P/2, inquest over the dead body was prepared vide Ex.P/3, Wedding invitat'on card, one report (Ex.P/17) and one inland letter (Ex.P/1) were seized vide Ex.P/4. Dead body of deceased was sent to CIMS, Bilaspur, vide Ex.P/12 where a team consisting Dr.V.K. Tiwari and Dr. Zubaid Khan (PW/14) conducted autopsy vide Ex.P/12 and found ante-mortem burninjuries of 90% and opined ou that mode of death was shock. Sealed clothes of deceased were seized vide Ex.P/6, spot maps were prepared vide Ex.P/15 & P/19, finally, first information report was registered vide Ex.P/23. Seized articles were sent for chemical examination to FSL Raipur and presence of kerosene oil over body of the deceased was confirmed vide Ex.24. 5. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Janjgir, who in turn committed the case to the Court of Sessions Judge, Janjgir. Learned Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the appellant, prosecution examined as many as fourteen witnesses. Accused/appellant was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and innocence and false implication in crime in question is claimed. Appellant examined DW/1 Manhar Ram Dhiwar, who has deposed that deceased received burn injuries when she was cooking and it was accidental case. At the time of the such incident, appellant was not present in his house and was at Raipur. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial court. /^ 9. Mr. Abhay Tiwari, learned counsel for the appellant vehemently argued that in order to convict the appellant under Section 304(B) of the IPC, prosecution was under obligation to prove that death was dowry death and soon before her death, she was subjected to cruelty and torture in connection with demand of dowry, but prosecution has failed to prove the aforesaid ingredient. Therefore, in absence of the aforesaid ingredient, conviction under Section 304 (B) of the IPC is not sustainable under law. Learned counsel further submits that the evidence adduced on behalf of the prosecution reveals that deceased committed suicide in the house of the appellant, therefore, liability for commission of offence under Section 306 of the IPC may be fastened upon the appellant. In support of his arguments, learned counsel for the appellant has placed reliance upon the decisions in the matter of Ravindra Tukaram Hiwale vs. State of Maharashtra in which Supreme Court has convicted and sentenced the appellant under Section 306 of the IPC and Rl for four years and in the matter of Pawan Kumar & Ors. Vs. State of Haryana in which Supreme Court has altered the sentence under Section 304 (B) of the IPC into seven years (maximum sentence). He further submits that in absence of any demand of dowry, conviction of the appellant under Section 304(B) ofthe IPC is not sustainable under law. 10. On the other hand, Mr. D.K. Gwalre, learned Govt. Advocate on behalf of the State opposed the appeal and submitted that considering the evidence adduced on behalf of the prosecution, '(2011)2SCC(Cri)137 21998(1) Supreme 505 ^- "^ i ^•^.^{'"^ l ^^-")S J ^'-"yS^ .4 ^' ^' "-.•^ffi '' °R <<" y especially evidence of PW/1 Santosh Kumar, brother of deceased, PW/2 Chhatram, father of deceased and letter (inland letter) Ex.P/1, the court below has rightly convicted and sentenced the appellant as aforementioned. 11. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf ofthe prosecution. 12. In the present case, abnormal death within seven years of marriage of Nandini in suspicious circumstances in the house of the present appellant has not been disputed on behalf of the appellant. Even otherwise, it is also established by the evidence of PW/1 Santosh Kumar, Dr. Zubaid Khan (PW/14) and autopsy report vide Ex.P/12 that death ofdeceased was abnormal death. 13. Defence has examined DW/1 Manhar Ram Dhiwar. As per his evidence, Nandini received burn injuries when she was cooking and it was an accidental case. In his cross-examination he has deposed that he has not informed the Police, again he deposed that he has informed the Police, but Police has not registered any information. The Doctor has noticed presence of kerosene oil over body of deceased. As per evidence of this witness, he has not deposed that deceased was cooking meals by kerosene stove or there was presence of kerosene in the kitohen. In absence of any other evidence, it is difficult to hold that deceased received burn injuries when she was cooking. PW/1 Santosh Kumar, brother of the deceased has specifically deposed that appellant has been committing torture and cruelty since 2002 in connection with ^ '"K:^;.^; •'. '"-?-.. '•\'. ^ demand of dowry and his sister wrote a letter (Ex.P/1) to her father which also contains the factum of demand of dowry. In para 6 of his evidence, he has specifically deposed that his sister was burnt on account of torture and cruelty in connection with demand of dowry and in his cross-examination he has deposed that he has not lodged report prior to commission of incident. In para 16 of his cross-examination he has denied the suggestion that his sister Nandini died as a result of accident. 14. PW/2 Chhatram, father of deceased has specifically deposed that letter (Ex.P/1) is well corroborated by the evidence of PW/1 Santosh Kumar. In para 6 of his evidence, he has admitted that his daughter was residing with him for some time and thereafter appellant came there and took back his wife. After 2 - 2 % months of such incident, his daughter died. Letter (Ex.P/1) written by deceased addressed to her father reveals the commission of torture and cruelty in connection with demand of dowry. In the present case, as per prosecution evidence, deceased died within seven years of her marriage in abnormal circumstances as a result of burn injuries in the house of the appellant. Evidence of PW/1 Santosh Kumar, brotherofthe deceased, PW/2 Chhatram, fatherof the deceased and letter (Ex.P/1) reveal that appellant has committed torture and cruelty in connection with demand of dowry. Deceased was residing with her parents on account of torture. Although Ex.P/17 does not reflect demand of dowry, demand of dowry soon before her death is a flexible and it is not necessary that on the date of commission of offence she must be subjected to cruelty for demand of dowry but there must be some continuity and nexus between death of deceased and demand of dowry. Evidence adduced on behalf of the prosecution is sufficient to establish the fact that there was continuity and nexus between her death and demand of dowry. Evidence adduced on behalf of the prosecution is sufficient for commission of offence under Sections 304(B)&498-AofthelPC. 15. As regards the sentence is concerned, deceased died after six years of her marriage. She was residing with the appellant and she received burn injuries in the house of the appellant. This is not an exceptional case under Section 304(B) of the IPC or a case of brutality and cruelty. In our considered view, maximum sentence prescribed under Section 304(8) of thelPC would serve the ends ofjustice. 16. Consequently, the appeal is partly allowed. While maintaining conviction of the appellant under Sections 304 (B) and 498-A of the IPC, the appellant is sentenced to undergo Rl for seven years instead of imprisonment for life. Sd/- T.P. Sh.arma Judge Sd/- R.N. CHANDRAKAR. Judge