HIGH COURT OF CHHATTI$GARH AT B§LASPUR ‘ Criminal Apgaea! N0, 454 Of 183G §$ingle Bench: Hon’ble Mr. T.P,$harma3 IL) Dhanaram and two others Anneiiants Resuendent State of M PV (Now 6G,) Order'be aosted for pronouncement on 'L’mugust, 20Q8 T. P. Sharma Judge #1 3-2908 ‘x HIGH CGURT OF CHHATTI3GARH AT BSLASPUR Criminal Appeai Ne. £54 cf 1995 Eiagae aench : Hcn’b§e Mr. T.P. Sharma, J. APPEAL UNDER SE”T!ON 37¢{23 OF IHE CCJ“E 6r CQ‘MINAL e PRGCEBURE t k Present : ‘ Amyeke tT‘was'i, seunse! fo¥ the appeilanis. ’ 8hr; ausmi uxmey, Gavt Advocate fer the Stai’e. JUDGEMEN? {Passed or M august 20%} ‘ 1. ah‘s neeai [s ewected agamm ism ludamew 0‘ convacnon 3rd ofder of i e ser‘tenc ‘ axed 24.4.T§QO paesed by rlrst Additionai Sessxons Judge, Pamm arm at - MaHasamund m Sessions Trial No.154f88 wherebv eamed Addlt‘ora! Qeesmns Judue after hoidmg the accusediaopekiams Gu‘lw *er bemmissxor‘ of offence Lmder $ectlor1 498 A a 306 of he lndmn t 1 Penal Coae benteraeed each of the accused/aueeiiants to unde‘mo rioorous i" , wpr armem for o years and 5 years resoectivew s 2. Juqgmem of com/ration is chahenged on the ground that w‘ithom any \ cooent anE wiia‘oie evidence: ioe iriai Couri has convieted aod sentenced ihe ‘ apoeliah’i as aforementioned. Sh Amtyakant Tiwart; counset fat the appellants and Shri Sushll Dubet, vt Advocate for the State are heard l 4. mo! ent imouqoed ard revord of trlat Court oeruseo l i l l l l l l " APPELLANm: 1. Dhawai'am Sio B’mnau Ram Aged 5O (in Jail) ' years 2. ~ Ihanu Ram s/o Dhanaram Aged — 2b ynars 3. Lachnvamm W/o uhwaram Agec: _ 45 years Ail RIO viHage- ~ Sirgucii, PS‘ Mahasamund, Distt. Raipur \ Versus X RESPONEEM’ State of MP. {Now CG) I)x. 5. The sese 0f ihe arosecuiion, m bxef is that, Heeraba§ {$inzze derease$ ;q me wr‘e of awe} am No 2 Tbua'nufam and dauahter in !aw af the be! ams ho & 2 Heevaba‘ was raarv eJ With the accusediaopeiiant No 2- "“namram 1r“ ihe vear 198£ She used to res:de wltn the appeliams m Lhe mammomgl ouse Ora 24 3 1988 ai about 3 p n" Heembai unwed «ei’osene cm he? batiiy and $et herse!f cm Me. bne oadiy burnt. $ne wa¢ shifted ‘0 Gavin Haspi’iai: Mahawmund by he? htzsésam appeiiant Ne.2— '{hanwam whare sno d‘sec} ‘an abziui 4 am. Appenants used m harass and tofmre to Hees’abm ’deceaxeJ) ur‘wa hm" life time and as a resuit of cméky, she ccmmitted mde Dy noming Kemsenw eié en her badv She was bumt'up ta §5%. Dr‘ r< V rrw Kwnar (PW a“ “'"as mmmed the so? he Vlde Ex P ‘iO Eyecu we Maqls e€$¥i u R Lahre recowed her dying deciaration L.x PIG m whxch sha ‘siatad iha? apswiaats used m hara$s and used to suspec: 0’: hea' chdacter iust bewe the we de + her me‘ther-m—{aw (appeHan: No.3) quarrened wu‘n her beci se 07+hat she vommlded swcxde 5. Dn K Vmav Kumar {PWJ1) examined hei Vlde ExPWA Sh succuw‘bed to the burn wwy O” 25 3 1988 a; abom 4 am Merg mtmakxon wee reworeed After newe t9 me witwesses inquest over the eedv o; deceaser Heeraba: Was prepared} Vide Ex. P 4‘ Body was sent :0? euiopsy. me Dr K Vmay KM‘ar i , ! — ’i) & Dr Ax< Shuk§a conducted autopsy vide r-x P'Q and owned ’rhat cause of eeaén is sbebk due to extenswe bum Spot map exP-1 z. was prepared‘ First mformaiiorl Report Ex. 113 waa regxstered. 37":e ?a’twef§ ereparee‘ sport map EXP-1. After complaim sf the inveseeatmn, charge sheet was fiiee‘ befOfe Judiciei Maqistfate Ere: Class: Mahasermd wee In tu m commst‘ed the case to the Court o‘ Sesssme Raiyuf; whem Add: Mme. Sessiehs Jedge received ihe case on hensier for 3 I a triai. 7. in order re preve the geih of the appeuants prosecution examined es many ae 13 wirnesses. Siatemeete of the accused persons recorded une‘er Sectiorrg3'l3 of the Cr.P.C. n which they denied the material appearing against§them in the presecution evidence and stated that they have been faiseiy ih‘rpiica’ced in the crime in Question. 8. tis argued on behalf of the appellants that deceased Heerabai wife 0f apeeilant No 2 T anu Rem She cited as a result of burn iniury. She was married to the eeoellan’c No2 Thenuram m the veer 1984 she has i‘ 1v} commi‘rzied suicide but not as a result of crueitv. harassment or toriure. EXP/5 is not the true dy§ng declaration. it does not bear the signature or thumb impression of the deceased. Statement 01" prosecution is seif contradictoty and is not supported by any documentary evidence. Oniy on account er unnaturai death of Heerabai, no iiabiiity can be fastened on the a’opeitante for commtssion of offence under Sections 306 and 498- A of the indian Pene‘ Code. 9. Oh L e other hand Mr Sushi! Dubev Govt Advocate supported the iudgmen of the tna! Court i t i i i to. \Uhna‘tura! death of Heetabai’as a resuit of burn injury sustained ’oy her is not diewted by the appellants Moreover, P.W.1- Dr. K. Vinay Kurnar: who t hae coeduoted the autopsy over the dead body of the deceased has stated that on 24 3 1988 he condor: ed the atonsy on the bodV‘ot Heerabai vide Ex DIS csmoe oeoeasedt Qdour of kerosene was oresent over the bodv fzrst degree to third oedree suoertroral to deep oum ingunes were present 20 weeks foetus was foono m the uterus of the deceased Cause of death was shook s a result o‘f extensn/e bum miury Avdhesh Sman (PW/12‘, ~*Jodmram {Pvt—2} and Rohrt Kumar (P.W.-r) have stated that Heerabai died as a result of burn injuries sustained by her: Thus, abnormai death of Heerabai as a result of burn iniuries is established. 11. in order to connect the appellants with the crime in question prosecution rs r owed to establish essential xndrediems of the o‘aenoe punisha 3e under Sections 305 and 498—A of the Indian Penal Code Le. the apoeitants have instigated or abetted the commission of the suicide by Heerabai and committed c’rueihr. C l t" t2. ln‘ order to estabiish the guilt of the accused/applicants, prosecution l ‘ l has adduced ocular evidence medicat evidence and dying declaration recording under section 32 of the Code of Criminal P ocedu e 18 3 l J? i 13, H order to appreciate the contention of the parties, l have examined i t the material available ’on record“ Linnatural death of Heerabai is not disputed ”" ”i it rs'b'nor. l the case er homicidai death. According the dying deciararionrsxP/s) Heerabai set herself ablaze; Prosecution has not adduced anv evidence to l the effetpt that the appeiiants caused homicidal death of Heerabai. F’Wl-Z— ‘ r r i l i l i i l l l i l Jodhiram, faiher" of Heembai has stated in his evidence in paragraph 2 that when he mached the hesp§taL he asked his daughter Heerabai as to why she has done an thi$ on which she *eid him that when the behaviour of mother— m Iaw fathet-m iaw and the husband towards her became intolerable then she was forced ta take this step The evrdence aaduced bv the nroseeution ic . suff'Cieht fer drawma inference that Heeraba, has committed suimde 14. 1A3 regards the question of ihstigation or abetment to the deoeased to comm‘t suicide Jodhiram (P W 2i father of Heerabai has Stated that af‘er manage oi Heerabax appellants used to qua rel and beat her their behavrour towares her was not normal When he requested the apoeiiants to eend his daughter With him, they refused or: the pretext that she was pregnalatat that time Whehever Heerabai Lsed to come to his house she ed to tei! that the appellants re “nether-m iaw father—m law aod husband used to quarre‘ and sometirres her husband threatened to kill her With kmfe Aiter ihe insideht when she was in the hospital, she told that when the toitumiiis attitude of the‘appellants became intolerable, then she attempted to commit suicide. This withess has stated that Tahsildar has recorded the statement of Heerabai P W -3 Devseer Bai mothei of the deceased has not supported the case of orosecutioh She had declared hei hostile However in her oross-exammatron she has stated that on being asked rieerabai told her that he‘r ”nether—in-iaw father—m-law and husband use to harass hex add i i _ therefore sne had ournt herself Qhe has also stated that the appellants were i doub ing hei delity {chaiacten Stow of harassment and torture by the ‘ appeiiaPts is supported by PIW. c Satyahhama, who is neighbour of P.W.—2— Jodhirarn & PM} ?—Rohit Ku’har PW «2—Jodhiram ha“ Admitted ih his cross— examnatron that sometimes Heerabai had complained against the appe ants Alhehever deceased used to corne to Mahasamund she also visited ‘the house or PW 5 Satyabhama and used to tel about the harassment and torturous attstude of the appellants meted out to her P W —3- Devseer Bar resident of Mahasamund has stated in he: cross examination that whpnever t e persoas from the Village oi the appeltants used to ViSit Manasmmundx they visited her house also and she used to entertain them by providing food etc‘, but they had never told regarding harassment or cruelty to the deceased Heeraba; bv theaooellants She has stated that Heerabai told her regarding harassment or Cruelty only when she was admitted in the hospital arid Drior to thrs she has never told anythmg like this to her i i . .W.—4 Romnath has siated in his crass-examinatien that h§s niece {BhanjD used to tel! her about the harassmem eted out o her by t apneiiants‘ 16-. .W.-5 Stayabham has iso admitted in her cross examinatien iha? he tci the police regarding harassment metec§ out by mother-m—ia ider in th d sb 17. W. 7— Roh Kar has aiso aii‘ted in his cross-examination that henevet he visited to the house o erabai at Sitguri, she toid about the harassrtent to her b the appeiiants However! whn Heerabai came to Mahaemud Wu then she otd aut the torturous attitue of the appeiiants to ' her. i case of dome olence or harassmen woal e cted ersoh e daugte v dues not reprt or nferrr anyone about e i s d w. e siste? law of Heerabai buf she did not teH e name of her father-ira—law an her huand. 3 §t um dm wg f He 48 n stic Vi t rmiv th efre i os i 'ii m iai o I th harassent tortueus atud of her husband or n to oer persons but asad wen she gets the opportunity! she informs about it to h parents, Te parents of the bride normaliy d not reat tmmediateiy but wait for an ppottone time, tn the hope of acabie settiment between the parties an to avoid further complications which may arise in tuturet But wh t ‘e ma iady dicloses the torturous attitude of her husband and in-iaw’s, to th i police, eighoour and other persons rated to her to get th dispute resoived with hr intervention. én h er i h o c *’ io mi e Ed en tter becomes intoierabie then the daughter-in-iaw or the effected s e h i i 19‘ ppeiiant has examined Neelgani Sahu (D.W,-’i) in his defence who h ed that he is neighbour of te appellants and used to visit their house. iSometimes, deceased Heerabai aiso used to visit his shop to purchase certain articles. According to him, Heerabai was a woman of a short teirnper and when Thanuram used to putohase something for his brother‘and sister then Heeta'oai aiways used to object to the same. However this witness has stated that she never disciosed about any quarrel on the ipart of the appeilants ln his cross examrratlon this Witness has admitted that Sister of Thanuram never oame to his shop to purchase anvthinh Appeitant No2 Thanuram has not told him that his Wite used to quarrel iwnh him She has aiso admitted that to his knowledge there was no quarrel ‘between the families of appellant No.2-Thanuram. Appellant No.3— i i i l i i 15 P m t he P a a ij y e ép t bo d i i m or tite i laws th h ei e tei as stat h Lachhvan’tan, has a§$o not told him that her daugh‘ter—in-iaw Heera6a§ used to quarrel with her. 20‘ D W -9 J R Lame Navab Tahsildar is a witness 'of dving deciara‘iion, who has sLated that he recorded dvma deciaratron o; Heerabar and he wro‘te down the anawers arven bv deceased Heeraear to hrs questron He arse ramed cerh mate of the dector reqardrnq rhe physrcal and mentai sratus of the deceased ‘ro gwe statement Nayab Tansrtdar recorded the statemeht of Heerabar rand put the same m wrri'mq the answers given by Heerabar to ms question .A‘ter recording the statement or Heeraba: bv Nayab Tahsrldar the same was read over to Heerabar As both are hands were completely burnt her srgna’rure could not be obtained on dyrnd declaratron Heerabar has answered allihe Questions though sne was feelmo parn P W -9 has admrtted wrote down the same m Hmdr Thrs wrtness has admitted that he has not, taken sronature of Heerabar over Ex P!S '21. PW 11 Dr K Vinav Kumar has admrtted m hrs cross exammauon that at the trme of hosortalrzatron Heerabal was In semrconscrous state When the treatment started she showed some rmprovement and at the tlme of orvrng statement sne was In fit state or mind He has also soecrfroaltv stated that frrst of all due care of Heerabar was of much rmportance Defence has not lbeen able to ehcrt anvthlna rn the cross—examrnatron to drscredlt the testimony l of thrs Witness Nothrno has been suggested to this wrtness that Whether) he has concocted the document o. not recorded ”the thinos which were stated ov Heerabar or he has recorded the thrnos which Heerabar has not stat‘ed The only de‘act 1r the dvrng declaration Ex P/d is that of not taking the Signature of deceased on rt PW 11 Dr K Vinav Kumar has specrfrcalty exotarned m paragraph 4 of hrs deposrtron that as ooth her oat’n were completely burnt Nayab Tahsildar could not obtain srgnatore over the dying deolarahon of P W 16 Both these wrtnesses are .esponsrble ofttcers of the State and therefore wrthout therr berng n suffrcrent reason therr conduct cannot'be questroned Nothing rs sugoested to these Witnesses to show that r thev have not drscharged therr dutres In accordance wrth the procedure ~/\ orescrrtaed or therr conduct was not farr or then and they have concocted the k his cross-exarrrnatron hat Heeraoai answered rn Chhaa‘rsaami but he document of Ex P/6 oe m 22. As heid in the case of Harieet Kaur V. State ofPuniaE, in Which it has beén heid by the Apex Court- that dying decimation recomed after satisfving about menta! %1ess of ihe deceased and obtaining endorsement to that gffect is sufficient for ascertaining the tmthfuiness cf the dying deciaiatian‘ Q 23. Dying deciaraiion (EXP/6) has been recoi'ded iri question answer g asking hfer name, her husban’s name & address, e asked Heera i as to i P ra f hi oi pre£ r. e ha i ‘ h e be y obtaininq er signature or thumb imprssion has en satisfactoril i’ nte w n st e Ree a i ai T i o us snd s h t t e , h ue kn at the tithe she was pregnant by 6 months. Statements P.W.-9- Executive gtrte and P.W.—1t- Dr. K. Viay Kumar inire confidence. $0 far as the d eclaration EIB is concerne, it is clear that e has not mae an eggeration in it. Ocular evidence of P.W.2- Jodhiram, P.W.—3- Devsr Bar, P.W.-4—Rnath, P.W.-5-Satyabhama & P.W.;6— Gopal also shows that she was harassed or torture by her husband andereiatives of the husband; There is ‘discrepancyin the statements ot the witnesses. They are not the eye witnesses. in the case of dowry death, harassment and torture to the bride, eye witnesses are not normaily possible and the Court has to rely uoon the facts and circumstances of the case. - 24. l$n careful examination‘ofihe ocular evidence and dying deciaration ./ \ EXP/6 In which it has been stated that the husband of the deceased and her mother-iinulaw i.e. appellant No.2- Than'u Ram & appellant No. 3- Lachhvantin 1 form. Nayab Tahsiidar has suggested nothin to the witnesses and after i how the iineident took place and whatever se has stated has been recorded i by him. .W.—2—Jodhiram, father of the deceased has aiso stated in pa 4 o s depsiton that Tahsildar has recorded the statement of Heerabai in esenc@ Dr. K. Vinay Kuma H s not taken the signature or thumb impresson ofHeera Bai in dying declaration (EX.P;’6). The reasons for not t eplaind the octo in his statement. Bh thes witnsses are neither ierestd itnesses nor'did they have any aimosity again th appeilants. lianc hs been placed on EXP/6 in which Heera Ba has stated that ppeiiarats used to quarrel with her and her husband stopped talking toher, mother—n-law als ed to quarrel with her and she was doubting her fidelity. Her hu‘ba ha also asked her not to talk to him. She as staed that, a the tim of commission of offence mother-in-law started quarrelling with er d to which she poured erosee over her body and set herseif ablaze and l Maisa n sp yi g d XP d sh d y xF y ’K /. (1999} 6‘; soc 545 d h Ba h xe bx? dr ot e e i of ee om \ ai'e the persons who used to harass and tarture the deceased and even they doubted her fideiity (character) which compelled her to set herself ablaze rafter pouring keresene over her loady. 25. ~As regards the complicity of appellaht No.1 -‘Dhenaram, there ie a bald and omnibus statement against him. The specific allegations are made only against appellant Nor 2 & 3. On the basis of such omnibus statement it is difficult §to hold that appellant No. 1 has also harassed and tortured the deceased and compelled her to commit suicide. But dying declaration ExPi6 is sufficient for drawing an inference that appellant No2— Thanu Ram harassed the deceased Heerabai and compelled her to ccmmit suicide. l 1 26. Afterapnremation of the matenal available on record the trial Court has convrcted the apeellants under Sections 395 and 498—A of the lr‘dian Penai Code Convrctlon of appetlants No 2 & 3 under sections 306 and 498-A of the lnElian Penal?ode is sustainabie, but the evidence against the appellant No.1 is not sufficient for, sustaining the Conviction fer the offence punishable under $ections 306 and 498—A of the lndian Penal Code. 27. us the appeai is partly altowed Contraction and sentence r posed (Sn apperiant No.1 Dhanaram are set aside and he as acquitted of the charges under Sections 303 and 498—A of the lndian Penal Code levelled against him. The convidtton and sentence imposed on appeliaht Nos. 2 & 3 is sustained. l 28. Thé appeilant No. 2 &3 are reported to be on bail. They are directed to surrender or serving out the sentence imposed upon them. /// sal— T. v. Sham“ , “a? «if