'w HtGH COURT OP CHHArriSSARH. BILASPUR APPELLANTS: (InJail) RESPONDENT: CriminalADDeallto.lSlofZOOfi 1. Kunj Bihari, S/o Sona Sao, aged 55 years, 2. Shriram Sao, S/o Kunj Bihari, aged 26 years, 3.- Sukhmanlya Bai, W/o KunJ Biteri, aged 50 years, All R/o Vlllage Trishull, Potlce Station Sanawal, Distt. Sarguja (C.G.) Versus State of Chhattisgarh, throigh Police Stetion Sanawal, DE^t. Sarguja (C.G.) {Crimtnal appeal under Section 374 (2) ofthe Codeof Criminal Procedure, 1973} Present: Mr. Ajay Mi^ira, AdvpGate, appears on behatf offt4r. Vijay Kumar Pandey,counsel fortieappellants. Mr. Neetendu Naha Roy, Panel t.awyerforthe State/respondenfc Slngle Bench: Hon'bteMr. T.P. Shama.J ORiALJUOGMENT fDelivered on 16th SeGtersbef. 2008) sf .../• • 1. This jail appeal is directed against the judgment of conv'ictfon and order of sentence dated 6-1 -2006 passed by the 1rt Additiona! Sessfons Judge, F.T.C., Ramanujganj in Sessions Trtal No.387/2004 whereby tearned Additlonal Sessions Judge after holding the appeltants guilty for commission of dowry death, eonvicted them under Section 304-8 read with Section 34 ofthet.P.C. and sentenced each ofthemto undergo R.l. for seven yeare. ' 2. The judgment is challenged on the ground that withoirt any credibte and reljable evidence, leamed tria! Court has convicted and senteiced the appellants. | 3. Case of theprosecution, tnbrief,lsthatprabha Dev!(sincgdeGeased), ! wife pf accused/appellant No.2 Shriram &, daughter-in-law jof accused/ ,€L 9 appellants No.1 & 3 Kunj Bihari & Sukhmaniya Bai, respectively, was married with Shriram priprto five years from the date of incident i.e. 1-1- 2004. The accused/appellants used to harass &torture the deeeased in connection with demandofdowry. On 1-1-2004 at about 6.30-7.00 a.m. the deceased was not present in her matrimontal house, when sritness Anita,sister-in-law of the deeeased, went to wetl for fdching woter, she found that one slipper of-Prabha Devl was lying there and Prabha Devl was not found in that area. Shetoldthe incident to her famlly members. They informed the parents of Prabha Devi and fetehed water from the well with the help of a pump and the body of Prabha Devl was found inside the welt. Merg was registeredand after summontng thewitnesses vide Ex.P-4, tnquest over the body of Prabha Devi was prepared vide Ex.P-5 in which irijuries bver nose & index finger were noticed. Dead body of Prabha Devi was sent for autopsy to Community HealthCentre, Wadrafnagar and autopsy was eonducted by Dr. R.B. Prajapati (PW-13) vide Ex.P-9 in whlch he opined that thecause of death is asphyxta due to drowning. Written report Ex.P-1 was submitted to the Police by Mandev, fatherofthedeceasaJ.SpotmapwaspreparedbythePatwari vfde Ex.P-2. The F.I.R. was todgedand ttie afyetlants werearrested. 4. After recording the statements of the wttnesses under Section 161 of ttie Cr.P.C. and after completion of investigation, charge sheet was flled before the Court ofjudicial Magistrate, Flrst Class, Ramanujganj, who in. tum, committed thecase to the Court of Sessions Judge, Sarguja, from where leamed 1st Additional Sessions Judge, F.T.C., Ramanujganj received the case on transfer for trial. 5. I have heard teamed counsel for the parties and peru^ the impugned judgmentasa)sotherecordofthetrialCourt. 6. Leamed counsel for the appellants submits that this-Is a case (rf accident, when deceased Prabha Oevlwent to well for fetehing water, as a result of accident, she fell fn the well and died due to asphyxia as a result of drownlng. The appetlants have not tortured or |harassed the deceased in connection with demand of dowry or on any |dher groynid. Just prior to one day of the incident, Mandev, father of the deceased, was present in the house of the appellants and after ta^ng meal, tie stayedinthehouseoftheappellants. , :! .i"i^i-^-;!BiS-.}^;.. ., ,'.:'.!;^^.'^.); •pauaAuoo usaq aABti ^eAeqoued as-iyi teMl psieis osie sey SH "-/OW'OZ'sy '? 3|oAojo|oiu pueiuep pue lAea eqqBid sjnyoi y ssejey 0^ pasn ei| 'paysffes )ou seMaij yiq 'eioKo syiiuiypseu&UB A8t|iyoii|ffi uo 'eioAo pueiuep oi pssn uiej|ii(s ^W eouaptAS siil U! psteis sett fe-/wd) ifu'Byi.i •Buitjieuies aqi psisis OSJB seq 'pasesosp 941 jo jeyiouj 'fe-Aftd) BBABIBX -||9 8i(i ui puno^ SB IASQ etiqBJd p Apoq peap ayi }Bitt MOU)| oisuieo aq usi(i 'ssnoy siqo^ sjoeq suueo 84 Aep puooss 'ieeiu s|oo»pue Sjay) psAeis 8i| 'stueiisdde SIB p asnoq 9141 IB SBM 94 tuepiou syt sjojsq Aep auo }eqi p8iB»sAiieajiosds sev SH •|A8a Bijqejd ssejey "8 unesse o( pssn spBtiaddBeqt 'OS|B teAeyoued 841 jaye pue pjeBsj sii|i ui 'sstun aajyi jo^ peuaAuoo SBM ^eABtioued leyi psiEife jaqyni sey 9H "^IMOP 4}un aiuoo o} paseaosp 8t|^ 0} Aes O) pssn A9t<} pue AJMOP p pueiuap ytiM uoiy»uuoo ui jei) lesq pue sjnyo^ 0} pssn siUB(|«ad<le ay^ |Aaa eMqejd 10 e6eyjeiu jeye ysiQ p3^sset< 'psseaosp eitt ^o jeqi^ '(|,-Aftd) AapUBM 'stueiiadde aqiAqajnyot 's lueiussejeq w ^Mop 10 pueuisp p }|nsaj e se psseeoap sin 10 i|)B8p |euuouqe 84) spjeBsj svoi. •uoiiipuoo |euuouqe u| sBeujeiu isij p sjeaA uaAes uiq^n paip pesesosp aij^ }BMI psqsitqetsaosiB si i| -aousiep aqt Aq psyeAOJiuoo }QU si yv^ pjes "tuspi.oui s^ 10 aieaA 9Ay ot joud uuejyijs 4)iM psujeui SBM 80 eqqe.id leqt p8»e|ssey ((,-/yy5;Aepue|^| •s •4tB9P IBuuouqe -s'! eB(Ai<dse sq 01 pync^sBM^^sp 10 ssneo yoii|M u! Asdoine JO^ ViSSSBM U pUB peiWlpUOOSBM isanbui 'Apoq peap ai|t ino BUI>|B^ jeye ||3M 34^ SptSUI (Wno^ SB (AaQ eiiq&id y) Apoq peap 8i<) l&inoi( BUIUJQIU 9iR ui 'WCK-I.-I 'a"! »u8pi3uisituo3t8p 341 uo teq^ psitsiiqetss si 11 'gi, oi I, SAAd s8ss8U»!MUOi)noasojdaiiuo souspiAa syiAq 'os(e ssiAUsqio •stueiiadde 3t|} Aq peindsip iou si IABQ ei<q&id P Miesp leuujouqv 's •t|(B8p JS4 ejojeq peseeoepsqi peunesse SABI| siueiiadde sq^ ^ei|iMoi|s OS|B asou pue ja6uyxapui jsAossunIui 'ajnpoi 'g lueiussejey ^o wnsai B se pap pssesoep eyi pue psseeoap syi sjn^iot sssejey 01 pssn s»ue||addBaqi •s^|nop siqeuoseej ||B puoAeq SSBOSI! pSAOjd sey uosnossojd sqt teyisiiuiqns js/Me'i |9UBd paLueai 'puBy J94»o 94} uo 'L ..-.^ ,c;' /- 7 12.t-lirmaniya (PW-4), grand-moither of Prabha Devi, has atsosupported the evidence of Katavati (R/V-2). Gupteshwar Pandit (PW-9) has steted in his evtdence that l-1areram, brother of Shriram, came to hs villageon 1- 1-2ro4and informed them that Prabha Devi was missing ancethe night of 31-12-2003, thereafter, they came to Village Trishuti by motorcycle and they saw the dead body of Prabha Devi in the well. When they enqulred from Hareram ae to what has happened, tie told them that his brother & father have murdered Prabha Devl and they have thrown her. This witness (PW-9) has also stated that nose of Prabha Devl was cut v ~ ' . • , • . and there was Injury over her finger and another injury of knife over back sideofneck. , IS.Inquest report Ex.P-5 reveals that there was injury over Index flnger & nose, but the injury caused by knife on backside of neck is notsupported by the inquest report or autopsy report. The doetor who condueted autopsy has speciFically stated that the cause of death was due to asphyxia as a result of drowning and not as a result of any injury. 14.AII the witnesses, who betong to the parental house of the deceased, have stated that the appellants used to harass & torture the deceased In connection wtth demand of dowry?, but nobody has st^ed that the ap^ttants have kitled Prabha Devi. Charge sheet for offence ofcutpable homicide has not been flled by the prosecution. The trial Court has dso not framedehargeunder Section 302 ofthe (.P.C.againstthe appdtants. The prosecutlon has not collected evidence to the effast that the appeltants have thrown Prabha Devi in the wetl. The wett was not sltuated inskJe the house ofthe appellants, it was 20 mtrs. away from the house of the appticants approachabletothepublic. 15.Mandev (PW-1), father of the deeeased, has speGlftcatly admitted In hts cross-examination para 13 that one day prior to the inciclent he was at the house of the appellants, he stayed there for night and second day aUw taking meals, he came backtohis village. He has further stated thattheappellants tolci him thsrt they wtl not send back Prabha Devl her life. The evidence of this witness is set^contradictor^, pn the one i -tiand, he hasadmitted that he stayed In the appellants" house feFtt)e; night and second day aflsr taldng meals he came back whlch shows that the behavior ofthe appellants was cordl|al and to hjs "», f 'N 1\kl other hand, he has atsostated that the appetlants had totd hlm that they will notsend his daughter till her life, thls shows that the behaviour of the appellants was not cordial. 16.According to the evidence of Kalavati (PW-2), mcrfher of the deceased, flretly, appellant No.2 h^ demanded cycle, thereafter, he demanded motorcycle & Rs.21,000/-. When the previous demand is oply for cycle, then second demand of motorcycle & Rs.21,W)f- fe also confradictory. l7.Parental relatives & maternal relatives of deceased Prabha Devi have s6ted about thedemand of dowry after the death of PraWia Devi. When the appeltants came to know about missing of Prabha Devi and presence of slipper near the well, they immediately informect the parenls of the deceased and tried to fetch water from the well, ultimatdly they took out the dead body of Prabha Devi from the well. There is no well inside their house or inside the premises of thetr house. Normally, in viltages peopte used to go to well for fetching vrater for their routine need. The prosecution has not adduced any evidence to the effect that at the time of incident or before the incident, theappellants harassed or tortured or competted the deceased to commit suicide. It has also not adduced any evidence to the effect that the deceaSed jumped into the welt, 18.tn prder to prove the guilt of the accused, the prosecution is required to establish all the necessary ingredients of the offence. The accused is not required to offer any explanation. In this case, Prabha Devi has not died indde the house of the appetlants for which ttiey may require to offer some exptanation about her death. On careful examination ofthe evidence of the prosecution vwtnesses, it appears that Prabha Devl fell down inskie the well in the moming when she went to fetch water from the well and as a resutt of the death of Prabha Devi, matemal relatives of Prabha Devi have stated about demand of dowry. Even Gupteshwar Pandlt (PW-9) has gone to the extent of saying that Hareram, who has come to his villageto tnform about missing of Prabha Devi, had told that his brother Shriram & father Kunj Bihari have caused the homteidal death of Prabha Devi. Ewdence of the witnesses does not Inspire confldence that the appellants have tortured & harassed the deceased soon before her death and as a result of such har^ment & torture, she committed suicide. Suspicion howsoever strong ft m^y be, cannot take the place of 5:^"*%., /ya^ ^ <», "S"--s.y ^.'-^sS3 proof. In absence of any reliable evldence, convicflon cannot rest merely on suspidon, as such, conwction imposed uj»nthe appeBants Is not sustainable. 19.Consequently, the appeal is allmwed. Comflction and sentence imposed upon the appellants und^r Section 304-B read with Section 34 of the I.P.C. are set aside and they are acquitted of the said charge. The appellants are in custody, they be reteased forthwth, If not required In anv other case. ' T.P. Sfaarma Judge