[s C' HIGH COURT OF CHHATTISGARH AT BIL^PUR Crimiaai AppealoflOS of 2006 APPELLANT IN JAIL RESPONDENT Diaesh Kumar yersus State of Chhattisgarh JUDGMENT POST FOR _lL./6/2007 SdA DhfrendraAEsfci-a !e ' • HIGH COURTOF CHHATTISGARH AT BILASPUR Crimmal Aoceal of 108 of 2006 APPELLANT IN JAIL Diaesh Kumar, S/o Ram.esh Chandra— Meshram, aged about 30 years, residence of Rajeev Nagar,, Durg, Distt- Durg (C.G.) Versus RESPONDENT State of CIxhattisgarh, through the District Magistrate, Durg. Present: Mrs. Indira Tripathi, learded couiisel for the appeUaat. Mr. G.K. Beriwal, learaed Dy. A,G. wifh Mr. Sudhir Bajpai, leamed Dy. 6.A. for the State/respondent. JUDGMEHT (Deliveredon /( Jyne 2007) Dfairendra Mishra, J The appeUant has prefen-ed this appeal under Section 374(2) ofthe Code ofCriminal Procedure agamst the impugned judginent of conviction and order of seatence dated 8tl1 February 2006 gassed io.S.T.No.246/05, whereby fhe leanied Sesslons Judge, Dura has convicted him undei-Sectioiis 498-A and 304-B of fhe Indian Penal Code aad sentenced him to undergo R.I. ofone year, to undergo R.I. of'seven years and pay a fine of Rs.500/- respectively, ia default of paynient of fine to further undergo R.I. for two inonfh.s. Bofh the senteiices are directed tQ run concurreutly. ' I - . 2.' Case of the prosecution,. iu brief, is that the appellant was inamed to deceased Kalpaaa, daughter ofSudam.a[Uike (PW-5) on 2.5.2Q04 who cominitted suicide by setting herself ablaze on 17.4.2005 ia her m.ati-mionial house. After she sustaiaed bum uyuries, slie was adirutted iu District Hospital, Oiu^^where sbs died while undergorag the treatinent oa. fh.e Same day. Onithe ili':'! iif •» basis of Merg iatunation ofEx.P/20 Merg Np.25/05 was recorded aud on. nierg inquuy itwas revealed fliat fhe appeUant and his luother used to harass the deceased for not giviag dowry of Rs.30,000/-, fherefore, she comiuitted siiicide by seftiiig hersetf ablaze, sustained l5o% bum iujuries and succunrbed to fhe same duruig treatalent. Inquest of Ex,P/2 was prepared ta the presence ofwitnesses. Dead body offhe deceased was sent for autopsy to Govt. Maia Hospital, Durg vide Ex.P/6 wherc Dr. C.S. Morey (PW- 17) conducted postmortem. on 18.4.2005 aud gave his report of Ex.P/21. Spot niap ofEx.P/7was also prepared, Bumt clofhia^ of fhe deceaged, m.&.tch box cover aad bunit iaatchsti.ck ete. were taken into possession vide Ex.P/8. During inerg iavestigatiou statements of witaesses K. Gaaga Meshram., Smt. Jaaabai, Shivkum.ar Sahu, Shivcharaa Nishad aad Dinesh Kuinar were recoFded suid fhereafter, First Infonaation Report under Section 304 B of the IPC was recorded vide Ex.P/9. Seized articles were sent for cheinical aaalysis to Forensic Science Laborator;7, Raipur vide Ex.P/ 13 and tfae report ofF.S.L. is Ex.P/ 15. 3. After conipletmg investigation charge sheet was filed iu the Court ofjudicial Magistrate First Class, Durg and flie same was couuiiitted to the Court of Sessions Judge, Durg for trial. Charg'e uiider SectLOUs 304-B aad 498-A ofthe IPC was framed agaiiist the appeUaiit aiid co-accused Kastura Bai, inother of the appeUaat, who abjured ftieir guilt. Prosecution ia order to esfabUsh the charge against th.e accused pex^ons examraed 17 witaesses iu all. Thereafter, statem.ents ofthe aceused wei-e recorded underSection 313 of fhe Cr.P.C, in. which fhey denied the |cn-cuin.stanGes appearing agauist them. ui the prosecirtiori case aiid.pleaided iniiocence and false implicatiou. The appellaat also pleaded that he never harassed Kalpaaa ia the naine ofdowiy uc^r ever beat her, she did not waat to live wifh his niother as she jwas by natare stubbom andshe herself set her ablaze. Similar Yas the defeHee plea ofhis m.0ther Kasfura. Bai. Q^] K n^\.:! ;i. 4. Leamed Sessions Judge, after hearing counsel for the respective parties, convicted aad. sentenced the accused/ appeUaat as iiientioned above. ., 5. Learued couasd. for fhe appeUant coutended tih.at adinittedly the incident occurred on 17.4.2005, however, offence was registered only on 6.7,2005 i.e. almost three months after the iacident aud no explauation for delay in. lodging fh.e F.I.R. has been offered by fh.e prosecution. He further subiaits that no irtdependent witness who resides in fhe vicin-ity, has been examiaed. Diaiy statements of fhe witaesses Sudaina Uike, Mukta Uike, Manata, Ku. Rachaa, who are fafh.er, mother, aunty aad sister of fh.e deceased, respectively have been recorded on 6.7.2005. He furfh.er subiiiits that aUegation. ^am.st tMe accused persons was fhat ftiey harassed fhe deceased as deinand of Rs.30,000/- to Rs.40,000/- for repaymg th.e loaa, which they had taken, was not satisfied by her pareuts, tfa.us fhere is no aUegation of delaand of dowry aad ia fhe absence of such aBegatiort, provisions of Sectioa 304-B are not attracted. Only geueral and bmiiibus aUegations have been inade by fhe witaesses agaiast the present appellant, his crippted inother Kastura Bai as also agam.st thesister-iii-Iaw of fhe deceased, however, in fbie saoie offence' laother ofthe appellant has been acquitted aad sister-ia-Iaw of fhe deceased has not even beeri prosecuted. 6. Relian.ee is placed ou the judgiaents of fhe Hon'ble Supreme Court reported ia 2007(11 Supreme 21 ia fhe matter of Appasaheb SB Aar. Vs. State of Maharashtra and (20011 8 SCC 633 m the matter ofSatvir Sinah and others Vs. Stiate of Punjab aad another. 7. Oatheofherhand,leaFQedcouliselfortheStatesupportecL< the unpugned judginentoftnal Court. 8. I haye heard leamed counsel for bcrth fhs pacties aiajdj; perused fhe material available on record. fe29 ^..^ 9. It is not disputed fhat the appellaat m.arried deceased Kalpana on 2.5.2004, who died on 17.4.2005 white undergoin; treatm.ent in. the hospital for 100% buru injuries sustained iD: her m.atrim.onial house,''wittun ayear ofher marriage. PW-17 Dr. C.S. Morey, Sr. Medical Of&cer has conducted fhe postniorteiu joiatly with Dr. P. Akhtar and has proved the postmortem. report of Ex. P/ 21, in which he has mentioued that smell of kerosene oU was einanating froiu her body, the whole body was biuTit, tumed blackish and stiff aad bunit skm. was peeluig ofi' froin. fhe whole body except Ihe face aud pnvate parts. Carbou particles weic present inside her nose aad ta-achea, body was 100% bui-at, it was deep burut aud a case of ante-inortem. bum.. lu fhetr opinion, cause of deatii was shock due to 100% bura aud she died 36 hours prior to ftie tmie ofpostmortem.. 10. ProsecutLon ia oltler to establish fhe circuiiistatices uuder which the deceased sustained buiu iujuries and died, has examiiied her father Sudama Uike (PW-1) who has stated that deceased Kalpaaa was inamed to fhe appeHan.t on 2.5.2004 at Goudia and thereafter, she caiue to Durg at her m.atruaoiual house wifh accused Dinesh. After two inonfhs of fhe inamage, he Urought lier' Gondia He used to talk with his daughter through telephone ia fhe m.eaD.while. On telephone, his daughter used to coiaplaia that her niother-ia-law, husbaad an.d sister-in-law harass, beat aad abuse her. When for the first| tim.e he had brought her fo Gondia, she told fhat her husbaad and nioflier-m.- law ask her.to briugnioney froin her paren.tal house as they are indebted to tfae exteiit of Rs.30,000/- to Rs. 40,000/- due to eonstTuction of house for repaynieut ofloan. Ho'weser, b.e used to explaiu his daughter tba.t he is fhe only eamiag ineniber in. the family of five and as such, he is not iu a position t6 giwe nloney. Diaesh and tus fi-ieud Tiiiku took the deeeased back Biul he had iioS talk witli fhem.. Qn fhe eve ofPola he again brougtljt lusPdjaiigfajteiS to hoiae aiid this tiine she tbM fhat she wffl retijuii oii^^affl^ money is giveu to her as her niother-ih-law, hnsband] and;isiStei-iEi^ III 11^1 :ri-i ^i] H law harass aud beat her. After the festival accused Duiesh aad his fiiend Titifcu cam.e to take Kalpana back aad at that tiine, he had giveu Rs.10,000/- to her daughter at the time of her departure. After DeepawaU, his daughter Rachna, his SQU Yuvraj, Mamta wife oftiis younger brother Yadavrao aad Suiril, friend ofYuvraj wentto Durg and brouglit back her daughter to Gondia. This time also she coinplaiaed that fhe accused persous are harassiag her excessively for nioney, her husbaad, mofher-iu-law aad sister-in- ]aw deiaand inoney on the.pretext fhat they have to construct a house. After four days 6f Deepawali accused Diiiesh and his fnend Tiuku came to take Kalpana, at that tuiie also he had given clothiag to the appeUant and deceased and Rs.500/- cash on tlieir departure. During his stay, fhe appeBartt after consum.ia.g Uquor stayed ia tlie house ofhis sister, which 1s situated iri frout oftheir house. AboTitone rn.on.th after going t6 her inatriinonial house his daughter again told Biin over telephoue fhat her ia.-laws are harassing her too much for inoney, he sent his wife aad sister of the accused uamely Chaadrakala-.to the house of the accused at Durg to convin.ee fhem not to harass her daughter. Thereafter, 15 days before Holy festival her daughter Kalpana telephoned and requested him t6 conie to Durg aad take her back as her husband, inother-in-law aad sister-hi-law were coiniiiitting Marpeetwith her, therefqfe, he sent his son Yuvraj, his fiiend Sunil, his daughter Rachna and Mamta fo Durg to bnng Kalpana back to her parental house. On 2IldApril 2005 accused Diaesh canie Durg aloiigwifh his Iiiend Tuiku aad took Kalpaaa with a proinise fhat ader retumiog Durg, they Shall live in a separate house land also lase T.V. aad shall not harass her. His fnend Tiaku also I. •;' ' assured fhat lier ia-laws shall not harass and beat|Katpaiia heiiceforth.. However, on 17.4.2005 Chandrakala, sster iof tlie appeUaat, who resides in. Gondia, came to their houseiat a.bout 9.00 ui'fhe nioniing and in&nned fhat Kalpaaa has tiumit, he and his wife have been asked to coiae to Durg wifh inoaey. Triereupon, "Be-aloug with 10-15 persons reached Dui'g at 4.00 iiitthel eweniag^; where they wcre iafonned fhat dead body ofKalpapa i^ lyangiia;^ -s^ v i.sge ^^" lfiS IIK'- nas '^r' II Mortuary for postmortem.. Oraaments of the deceased were nussiag froiu her dead body, his daughter has been done to death. by fhe accused persons by settuig her ablaze for dowry. In. cross- examination he has stated that during negotiatiou ofiiiamage, the appellaiit and otheis had demanded dowry whlch was refased by hlm and fhereafter, after talktag to tlieir sister Chandrakala they retumed back aad said that fhey have approved ftie girl, they are icady for inardage and they don't waat dowry. He has adautted that whatever was giv^n at fhe time of raarriage, was given. voluiitarily and uot on deniaiid. He was uot aware before inaniage fhat Kastura Bai is 'crippled and not able to walk on her feet aiid because of fhe condition of Kastura Bai responsibiMty of the deceased was enliaiiced, however, he has denied tliat his daughter used to coiaplaui fhat she is required to work niore because offhe crippled Biother-m.-law. He has further adintitted fhat he kaew fhat his son-ia-law was driver, however, he did not know about his iaconie fhough he thought that the accused raust be eaniuig so m.uch ftiat he cau take care of a faouly of four properly. He has adiaitted tiiat his daughter had infortued him fhat fhe accused used to say that he had to rUii fhe family by Rs.500/- only as he is mdebted. Howeyer, he has deiued fhat fhe accused used to give his daughter Rs.20/- per day separately, He has admitted ttiat his daughter never complaiaed that his husbaud coasuines liquor. He has further adniitted that his stateinent regardiag dowry was recorded after 1 '/a to 2 lULonfh.s of fhe iucident because the of&cer who was iavestigating fhe matter had gone in coiinectipn wiUi laamage of his daughter. l ; 11. PW-2 Siat. Mukta Uike, m.Qfher of the deeeased, has also deposed. iu fhe similar Ime, She has stated fhat her|daughter coDiplaiaed that her luisband and the mother-ni-law: beat' Uer;ui;; fhe name of dowry for bringiiig inouey fi-om. her pareiifal]3aGUS6;& She has also stated fhat her sister-in-tew also tieats faer:£Qrim<:)ne^<| In whole ofher statenient she has narrated that her<lau^B|elj|^gfflg to injbrm her that fhe appeUant, his mother and sister|]:iai'aS||a|ig 't'II'i BISSfilSIS beat her ia the naiae oFdemaad ofdcwrv. AfiEr leajniansi'tBBHS -.,,.. ••-..-w..'^^a w K BJ WIW :f .A'- li:i!|:lil m daughter had burnt, when. they reached Durg, she saw her daughter dead. In flie cross-exaaunationshe has admitted that whatever was given'at the tLm.e of inarriage was given voluntarily. She has also adiaitted that whatever was given to her son-iu-law was given by tliera on tiieir own. However, she has deiiied the suggestion that Kalpana was never harassed in the n.am.e of dowiy aad nioney aad she was never beaten. Smular is fhe statem.ent of Maaita, aunty of fhe deceased, who has stated that whenever Kalpaiia came to Gotidia, she used to complain. tb.at she is harassed for inoney by the accused persQns aad she used to weep also. Inpacagraph 2 she has stated that on fhe eve OfHoly festival she along wifh Rachna, her brofher Yuvraj and his friend Sunfl had gone to brm.g Kalpana to Durg, at ftiat tiiae Kastura had told us that she would retuni only wifh inoney or else she should not return, whereupon fhey had stated fhat fhey are poor people, how can they satisfy their regular demands. This witness has also adm.itted fhat at fhe tmie of m.amage whatever was given to fhe daughter Kalpaaa was given. voluntarily and even on fhe eve of festival whatever was given was given. voluntarily. PW-4 Ku. Rachna, sister of fh.e deceased, has also stated fh.at deceased Kalpaaa used to teU her that whenever she canie to Gondia accusAl -persons harass her iu the naiae ofdem.and ofdowry. 12. Station House OfBcer, Y.S. Mishra (PW-10) fhe investigating oflicer of the case, has stated fhat during mergi investigation .h& had recorded fhe stateinents of witaesses Ku. Gaaga Meshrain, Sint. Jaaabai, Shivkuiuar Sahu, Shivcharan Nishad and Duiesh Kuinar aad on inerg itiquiry he found thatoffence under Section 304-B of IPC has beeu conmutted and merg was recorded on:j 6.7.2005 vide Ex.P/9. In tfae cross-examiaalion. m. paragrapli^9 he:! |||j| has further stated that apart froai the persoiis wfaoBa. he: ^hasj^|gj| named above, he had also recorded the stateiiienLts of Sudama|]l|j3|!| sm Uike, Mukta, Ku. Racluia, Snit. Mamta and ShTawau'd'uriiigjinergjl'lg iuq'uiry, however, their stateiaents have aQt beenj charge sheet, they inustbe in the inerg diaiy. aiuiexed;'witfi:';tlieri '^ .^- 13. It is true that tlie stateiaents of fhe witn.esses were recorded only after fh.e registrationof erune i.e. on 6.7.2005 and for delay in registeriag the offence has not been properly explained. The iavestigating officer faas claimed fhat fhe stateiiients ofwitaesses who have been exaTnined duFuig tnal, were also recorded earlier duriag merg inquury, Uowever, the same could not be brought on record. Froin the stateiuent of the Sudauia Uike, fafher of the deceased, as also fhat of Mukta Uike, inother of the deceased, who are witnesses of negotiation ofm.an-iage, it is clear that uuttaUy the famUy members of Qie appeUacit had demanded dowry which was flafly refused by theni aud fhereafter, they had agreed for mamage wifliout dowty aud whatever was given at fhe tinie of Dian-iage was voluntarily given witliout any deiaand. 14. From. perusal qf the above eyidence it appears that finaticlal position of flie appellant's fanuly was not soiuid and fhey were indebted to the time ofRs.30,000/-to Rs.40,000/- aad they were finding it difScult to nui their Kousehold expenses. Only a suni of Rs.500/- was given to the deGeased to nia flie fanuly, as a i-esult of which tliere was tension in. the fatiuly, It atso appears tliat they expected soine fuiancial assistaace from. the parents of the.. deceased'as'fh.ey had to repay ftie loaa to tlie tune of Rs.30,000/- toiRs.40,000/-, which ftiey had borrowed for construetion oftheir house. However, fhe deceased was n.ot able to bring the above inoney due to finan.cial constraiiits of her parents. fThough ofher witaesses have stated ia their depositions that deniands were inade ia conriection wifhdowiy. r 15. In fhe laatter ofAppasaheb & Anr. Vs.StatGofMaliai'ashtTa. 11811 i :1 .. '- ^•''^•J^i&'iiSSiJl (supraj the Hon'ble Apex Courtwhile dealuigwith dpwry death faasK held in. paragraph 9 as uiiden ;i;sS)!«; "9. Two esserrtial ingredients ofsectioii,3C)4-^;Ij;'<S,.| ^|)|j|g|| apart Iroinothers,. are (i) death ofwoinaii;:is::cajij^g|||||||||jj||^ aay: huras or bodily mj'ury .or occyrs Qt3ierwi^ey|||ifi||j||||gj under nonnal Gircumstarices, aiui fv^ • •woBafii||jisl311§811i '':::^ '^(^S^ SNIffi^.ii^l^i^ • subjected to-cruelfy or haTassuient by :hpr'hi]s]Hni1isliTrar^i|s!: ^;1 any relative ofher husbaud for, or in. coiuaection with, any deiaand for "dowry". The explEuiation appended to sub-section (l) ofSection 304-B IPC says that "dowry" shaU have fhe sanie uieaiung as ia Section 2 of Dowry ProhibitionAct, 1961. Section 2 of Dowry I3rohibition Act, reads as under:- K'\ •ai.tir "2. Defimtwn of 'dowry'- In this Act "dowiy meaas any property or variable security given or agreed to be green eifher dn-ecUy or induectly- (a) by ane part\r to a marriage to the ofher party to the^jnarriage; or (b) by fhe parents of either party to a inarriage or by any other person, to eifher party to fhe mam^e or t6 ariy ofker person, at or before or auy time after fhe inarriage in connection wifh the mamage of fhe said parties, but does not iaclude doer Of laahr i& Ihe case ofpersons to whom the Muslmi Personal Law (Sbariat) applies. In view of fh.e aforesaid defiBdtton of the word dowiy" aay properfy or vatuable security should be given or agreed to be given either direcfly or uidirectly at or before or aay tune after fhe inarriage aad ia connection with fhe marriage of fhe said parties. Therefore, the ^ giviug or takitlg of property or valuable security niust have sorae connection wifh fhe ruarriage of ftie parties aiid a co-relation between the givini or takiag of property or valuable security with fhe marriage of the parti.es is essential. Being a penal provision it has to be stricfly coiistrued. Dowry is a fairly weU known social custom or practi.ee in. India. It is settled principle of uiterpretation ofStatute fhat iffheActisrpassed with reference to a particular trade, busiaess: or fransaction and words are used whieh everybody conversaut with fhat trade, busm^ss ori traasaction knows or understands tb have particular laeaaiag ia it, then the words are fo be construfid as having that particular laesirLBig. ; [See Unionof Indiav. Garware Nylonstitd, &IR.V 1996 SC 3509) AND Chemicals cind ^Pfibers^of^ India v. Unionof India, AIR 1997-SC SSS) :.^ deiuand for nioney on aGCouut of soine fiira33i(a|alg| stringency or for meetmg sonie urgent 4oiia£:s;|iic|j expenses or fbr purchasiiig inanure^G£tti£tt<2i||j||)|Sg termed as a deinaud IOT dowrv as tlie saidNiRfiW; w 10 is normaU.v'understood. The evidence adduced by fhe prosecution does not, therefore, show that aay demaad for 'dowry' as defiued in Section 2'of fhe Dowry Prohibition Act, was made by fhe appeUants as what was aUegedly asked for«wassoine m.oney for ineetuig doniestic expenses and for purchasing maaure. Since an esseD.tial iagredient of Section 304-B IPC viz. deinand fdr dowiy is not established, the conviction of the appellauts cannot be sustained, 16. In tlie uistant case also, general aad omrdbus allegations have been made agamst fh.e appellaat and his famfly laeiabers *;. • r includuig Kastura Bai, laofher of the appellant that ffaey harass aad heat deceased Kalpaaa ia fhe name of deiaaad of dowiy. However, from. the evidence available on recoid it is clear ttiat ia a pGriod ofless fhan one year, on several occasions offestivals facaily meiubers ofthe deceased had gone to Durg to bnng deeeased back to Gondia and on each occasion accused had CODIC to Gondia to brm.g baek his wife. Defence of flie appeUaat that responsibility of runiung household expeuses fcU uppn fh.e deceased imuiediately after marriage as his niother was crippled aud uninobiLe, her trouble was fui'ther coiupouaded due to fniancial constraiats as she had to run fhe fanuly wifh a peltry sum. of Rs.500/-, as a result of'wMch fhe deceased started insistuig separate Uving and sKe herself set her ablaze, appeara to be probable. There is no evidence on record fhat dowry as defined in Section 2 of Dowiy Prohibition Act was giyen or agreed to be given at or before or aay titne after ftie marriage and in connection with m.amage offhe said parties, fherefore, fhe allegatton of demand of inoney by tKe appellaiit aad his fatndly nlenibers for repayuig the loan, caruiot be tenned to be deniand of dowiy wittun fhe m.eaniag ©fSectioa. 3Q4-. B of fhe IPC. The Courtbelow wasiiot justified |ia;h0l(Iingjtlie appellaut guilty of oflEuce under Sectiou 304-B of tUe YPG, i • : ;: '. when the aUegation of harassmentby cp-accused Kastura.] been disbelieved aad she has beeu acquitted by exjtendiag of doubt on the ground that she was not able to •vaatk crippled aad co-uld not harass or beat fhe decease(l.|| '<&'&• 11 17. However, cousidering the evidence available on record that the deceased was Jiarassed in. fhe name of deinand of Dioney for repaym.ent of loaa taken by the appellaiit aad his family inem.bers for construction of house, conviction of fhe appeUant under Section 498-A oftheIPC cannotbe faulted. 18. In ftie result, fhe appeal is parfly aUowed. Convictiou of tiie appeUaat under Section 498-A of flie IPC aad sentence of one year R.I. imposed under fhat section is niauitauied. Conviction of fh.e appeUant under .Section 304-B ofthe IPC aad sentence of seven years'R.I. aud fine im.posedunder thatsection, are set aside, It is stated fh.at the appeUaat is in jaU siace 10.7.2005 aud as such, has completed tlie jail sentence iniposed upon hiin, therefore, he be set at Uberty forthwifh, ifnot required in aay ofher case. Sd/- Dhirendra iVIishra Judge 1-