gwwg V co 7 FCHHATTI$GARH > H ILASPUR _ Criminai Aggeai No.845 of 2003 APPELLANTS: Sanjay Kumar and three others M Versus ESPONDENT.- State of Chhattisgarh Post for pronouncement of ‘ud ment on 2 5 +i§entember 2008 * i ’ sw. ’ 1 TRSHARMA. :3 f“ ' u 7 ‘7 Judge "‘ J“ ‘ I! ”i'h‘u :7 1'. R tilGH COURT OF CHHATfiSGARi-L BiLik$§UR Criminal Appeai No.345 of 2W3 APPELLANTS: 1. Sanjay Kumar, S/o Bihariram Verma, aged 28 years, 2. Bihariram, S/o Khamhan Singh Verma, aged 47’ years, 3‘ Ambika Eai. Wio Eihariram Verma‘ aged45yeafs, 4. Ku. Sarada, Dfo Bihariram Verma, aged 20 years; A“ the appeiiants are Rio Viiiage Ehendarwani, Tahsé! & PuHce $iatian Sa}a: Dismct Durg (CG) Versus State of Chhattisgarh, through Station House O$cen P01§ce Station Saja, Distréct Durg (C.’3.) {Criminai appeai under Section 374 (2) of the Code of Crjminal Procedure, 1973} RESPONDENT: Present: Mr. Raj Kumar Gupta, counsei for the appellants. Mr. Pankai Shrivastava. Panel Lawyer for the Statelrespondent. Sinqie Eench: Hongbie Mr. TP. Shanna. J JUQGMENT (Deiivered on Q5r+§eptemben 2008) 1. This appear is directed against the judgment of conviction and order of sentence dated 7—?—2003 passed by the 3‘“ Additionai Sessions Judge (FTC), Bemetara, in Sessions Trial No.51l2003, whereby iearned Additionai Sessions Judge arier holding the appellants guilty for commission of offence under Sections 304—3 & 498-A of the LPG” sentenced each of them to undergo Ri. for 10 years 8: io undergo RJ. for two years and pay a fine of RsSDOOL, in deiauit of payment of fine to further undergo Ri. for six months, respectiveiy. 2. The judgment is chaiienged on the ground that the trial Court has convicted & sentenced the appenant’s oniy on the basis of the evidence of reiated & interested witnesses which was not sumcient for conVicting them. . Case of the prosecution, in brief, is that Bhagvati Bai (since deceased) was married to accusediappeliant NM Sanjay Kumar in the year 19W, accusedfappeilants No.2 & 3 are father—in-Iaw & mother-in—‘aw of the deceased, respectiveiy, and accused[appeiiant No.4 is sister—in-iaw of the deceased. At the time of her marriage, suft’ioient dowry was given by the parents of deceased Bhagvati Bai, but after marriage, the appeiiants used to demand 5 Toias of gold & Rs50,000/— in cash and they used to harass & torture the deceased in connection with demand of dowry. Once, the appeiiants ousted the deceased from their house on which she stayed in the house of her father for about 84G months. The appeiiants had taken her back to their house, thereafter, they again started torturing & harassing her and as a resuit of reguiar torture & harassment, she consumed insecticide (poison) on 2240-2002. Appeiiant No.1 Sanjay Kumar 8. appeiiant No.2 Bihariram took her to the hospitai at Saja, thereafter, she was referred to the district hospitai, but she died during the course of journey to the district hospital. Merg intimation was registered Vide EXP-1 2. . The investigating Officer ieft for the piece of occurrence and after summoning the witnesses Vide Ex.P-2, inquest over the body of Bhagvati ” Bat was prepared Vide ExP—t. The body was sent to Primary Heaith Centre, Saja for autopsy and autopsy was conducted by a team of two doctors namely, Dr. Sunii Singh (PW-11') & Dr. SK. Agrawai (PW-i2) vide , EXP-f. Biood wasoozing from the nose, one simple scratch over right elbow ioint & one abrasion over neck were found. Presence of poison was noticed on inte‘rnal organs. Viscera was preserved. internal organs were congested. Undigested food was found in the abdomen. Probable cause of death was as a result of poison and asphyxia. Firstiy the deceased was examined by Dr. Smt. V. Dewangan (PW-13) Vide EXP-8 and at that time she was unconscious. Roznamcha was recorded vide ExsP-to & P-11. Merg was enquired into and on the basis of the merg enquiry, F.l.R. EXP-13 was registered. $eized articles were sent for chemical anaiysis vide EXP— 15 and presence of monocrotophos (organo phosphorus) insecticide was confirmed on the viscera of thedeceased vfde EXT-’4 6. Hand written letter EXP—4 was seized vide seizure memo EXP-3. Cash memo of the L4 insecticide was seized vide Ex.F’-5. Spot map was prepared by the Poiice vide Ex.P-1 4. 5. After recording the statements under Section 1'61 of the Cr.F’.C. and after compietion of investigationx charge sheet was filed before the Court of Judicia§ Maaistrate, First Class, Bemetara. who in turn committed the case ta the Ceurt cf Sessians Judge, Burg, tram where iearned 3” Additional Sessions Judge (F.T.C.), Bemetara received‘the case on transfer for triai. 6. in order to prove the guilt of the accused persons, the prosecution has examined as many as 19 witnesses. Statements of the accusediappeiiants were recorded under Section 313 of the CrPC. in which they denied the circumstances appearing against them and pleaded innocence & false impiication‘ The appeiiants have adduced the defence evidence of Firturam (DW4) who is their neighbour. Firturam (WV-1} has stated in his evidence that Bhagvati Bat has never complained to him about any iii-treatment: father of Bhagvati Bai never came to the house of the appellants and the parents of Bhagvati Bat have never complained regarding demand of dowry or any harassment & torture in connection with demand of dowry. 7i in order to prove the offence of dowry death and cruelty to the wife] daughter-in—law, the prosecution is required establish the following ingredients of the offence: - (i) deceased Bhagvati Bai was married with appellant No.1 Saniay Kumar; (it) deceased Bhagvati Bai died within seven years of her marriage; (iii) deceased Bhagvati Bat was subjected to cruelty by the appellants who are husband & relatives of husband; (iv) the said cruelty was in connection with demand of dowry; & iv) deceased Bhagvati Bai died in abnormal condition as a result of commission of suicide. 8. in order to connect the appeliants with the crime in question, the prosecution has adduced ocular, documentary & medical evidence Marriage of deceased Bhagvati Bai with appellant No.1 Sanjay Kumar, which took place in the year 199?, is not disputed and the abnormal death of the deceased as a result of consuming poison is also not disputed, otherwise, it is established by the evidence of Dr. Sunil $ingh (PW-1 1) who has stated that on 23-10-2003 he conducted autopsy on the dead body of WA the deceased aiong with Dr. SK. Agrawal (PW-12) vide EXP-7 and found that the case of death of the deceased was as a resuit of asphyxia due to poison. Sitaram (PW-1), Ramavtar Sharma (PW-2), Nand Kumar (PW-5), Parmanand (PW-6) & Durgaram Verma (PW-10) have also stated that Bhagvati Bai died as a result of poisoning. 9. in order to estabiish the guiit of the accused in the crime in question, the prosecution has examined ocuiar evidence relating to harassment & torture soon before the death of the deceased. Bhutin Bai (PW-Q), mother of the deceased, has stated in her evidence that Bhagvati Bat was married with Sanjay Kumar in the year 1997, in the month of January, 2G02 she stayed in the house of the appeiiants for 8-10 days, at that time, Bhagvati Bai was residing with the appetiants. in the year 2061, during Vaisakh (June), Bhagvati Bai& Sanjay Kumar came to her house, at that time, Bhagvati Bai toid her that the appeiiants used to demand 5 Toias of goid 8: Rs.5G,OOO/—, they used to harass & torture her and do not provide meats to her; Bhagvati Bat also told her that the appeliants did not taik with her. Once during Vaisakh (June), the appeiiants had ousted Bhagva'ti Bai from their house and they out the thread ot‘ the cot on which she used to sleep, at that time, her daughter used to steep on the cot brought from other’s house. This witness has further stated that the appellants started harassing her daughter after one year of the matriage and ultimately, she died. 1D.Durgaram Verma (PW-1Q), father of the deceased: has also stated in his evidence that the appellants used to demand Rs.50,0001— & S Tolas of gold and they used to torture 8. harass her in connection with demand of dowry. His daughter used to tell that the appellants were demanding dowry. He has further stated that the appeiiants administered poison to the deceased and as aq'esuit of poisoning‘ she died. l-ie has also stated he has given dowry at the time of marriage of his daughter. 11.Sitaram (PW-1), relative of deceased Bhagvati Bai, has also stated that the appeilants used to torture & harass Bhagvati Bai in connection with demand of dowry. Ramavtar Sharma (PW—2), brother of Bhagvati Bai, has aiso supported the evidence of his father. Parmanand (PW-6), who is resident of the appeiiant’s viiiage, has stated in his evidence. that he was calied by cousin of Saniay namely, Ramdhaniwwho totd him that Bhagvati Bai was iii, then they took her to $aja for treatment. Parmanand (PW-6) has not supported the case of the prosecution and the prosecution has deciared him hostiie. 12.Kuieshwar Kumar Verma (PW-15), brother of the deceased, has aiso suppoxfted the evidence of Durgaram Verma (PW—10), father of the deceased. He has stated that his sister has written letter ExP-4 which was seized vide EXP-3. He has also stated that to satisfy the demand of the appeiiants, he gave RstQOOCI— to his sister, after taking loan from Sitaram. 13.Firturam (DW—1), who is neighbour of the appeliants, has stated in his evidence that Bhagvati Bai never compiained to him about any iii-treatment or maltreatment of the appellants. Father of Bhagvati Bat never came to the house of the appeiiants and the appeliants never demanded dowry. in his cross-examination he has stated that parents ot’ Bhagvati Bai had given dowry as _oer their capacity. He has admitted that appeiiant No.1 Sanjay Kumar & Bhagvati Bat resided in the house of the father of Bhagvati Bai for about one year. it appears from the cross-examination of this witness that he personaliy does not know anything. Min this case, oniy the maternal relatives of Bhagvati Bai had deposed against the appeiiants that too after the death of Bhagvati Bat, they were present at the time of mergg but they have not said anything to the Poiice Officer. Their evidence cannot be discarded only on account of the reason that they have not said anything to the Poiice Officer or they had not lodged the report prior to the date of incident. 15in case of domestic violence or harassment, normally the effected persons i.e. daughter—in—law does not report or inform anyone about the harassment or tortuous attitude of her husband or in-iaw’s to other persons but as and when she gets the opportunity, she informs about it to her parents. The parents of the bride normaiiy do not react immediately but wait for an opportune time, in the hope of amicabie settlement between the parties and to avoid further oompiications which may arise in future. But when the matter becomes intolerable then the daughter-in-Iaw or the effected lady discioses the tortuous attitude of her husband and in-iaw’s, to the poiice, neighbour and other persons reiated to her to get the dispute resolved with their intervention 16.!n the instant case, Ehagvati Bai committed suicide and her maternal reiaiives had East their daughterfsister. Therefme} they may exaggerate their statemems with a View to teach a iesson to the appeiiants. In the circumstances, minute scrutiny of the evidence is required to be made. 17.Learneo counsei for the appeiianis placed reiiance in the matter of Narayanamurthy v. State of Kamataka and anether‘ in which it has been heid by the Apex Court that in absence of proof of demand of dowry or cruelty and harassment in connection with demand of dowry, acquittai of the accused is proper. 18.?urther reiiance has been piaced by learned counsel for the appellants in the matter of \Jithal 't'ukaram More & others y. State of Maharashtra2 in which the Apex Gourt has held that the offence of dowry death should not go unpunlshed, but it is equally desirabie in social interest that other members of the husband‘s famiiy are not made to suffer punishment merety because of their relationship. in the case of dowry death, direct evidence is scarcely avallabie, therefore, to establish guilt on the basis of circumstantial evidence, required standard is a must. The Court is required to see that the penal provisions intended to club the crime by bringing the offences to book do not cause injustice to innocent people. 19.Learned counsel for the appellants has aiso placed reliance in the matter of Santosh v. State of $6.3 in which it has been held by this Qourt that‘ interpoiations in the document and material contradictionldiscrepancy in the statement make the case of the prosecution doubtful. Absence of any allegation at the time of inquest by the paternal relatives of the deceased makes their statement doubtful. 20.As has been .heid by the Apex Court in the matter of Alamgir Sani v. $tate of Assam", absence of any statement for iii-treatment or beating or demand at the time of death is no ground for disbelleving the evidence of demand for dowry, it may be under shock. Therefore, absence of any statement relating to harassment & torture at the time of inquest does not make their statement inadequate, as the close relatives of the deceased would be in shock and they would not be in a position to tell the story. i 2008 r2) ANJ (so) as i 2002 (2) cotu. 24s 3 2008 (2) c.G.L.J. a (DB) ‘i 2003 Ara scw 111 21.Sitaram (PW—1), reiative of deceased Bhagvati Bai, has admitted in his cross-examination that father of Bhagvati Bai told him regarding demand of dewry. He was aiso informed that Bhagvati Bai stayed in her paternal house for about a year and after resoiving the matter Sanjay took her from her parentai house. 22Ramavtar Verma (PW-2), brother of deceased Bhagvati Bai, has also admitted in his cross-examination that the appeiiants had never demanded anything from him, but when he came to know regarding the demand, he went to the house of the appeiiants, but at the time the appeiiants were not there. 23.Bhuiin Bai (PW-9), mother of the deceased, has admitted in her cross- examination that the appeilants demanded 5 Totes of goid & Rs.50,0GD/— before the marriage of Bhagvati Bai and they were agreed to satish/ the said demand. Appeiiant No.1 Sanjay Kumar & her daughter stayed in their house for about 4—6 months, at that time, their reiation was very goOd. She has aiso stated that she had toid the fact reiating to harassment in her police statement ExD-3, but the same has not been mentioned therein. 24.Durgaram Verma (PW-1G), father of the deceased, has admitted in his crossexamination that the appellants used to demand money from Bhagvati Bai and Bhagvati Bai used to demand from him. He has further stated that at the time of Teeja, the appeltants had not sent Bhagvati Bat, whereupon his son went with Rs.10,00(3/— and gave the said amount to the appeitants, even then the appetiants had not sent Bhagvati Bai to his house and after two months she died. He has admitted that Sanjay Kumar & Bhagvati Bai had stayed for about 8-10 months in his house, at that time, their reiation was good, thereafter, $anjay Kumar took Bhagvati Bai to his house. He has also admitted in his cross-examination that his daughter used to teil about demand of dowry and torture. 25.This is a case of domestic violence and domestic harassment. ln the case of Atamgir {supra}, it has been held by the Apex Court that relatives of the deceased may not narrate the story of demand 8: harassment at the time of inquest, as they would be under shock at that time. 26.Sitaram (PW—1) has stated in his evidence that he is acquainted with the handwriting of the deceased and the ietter EXP-4 was written by deceased Bhagvati Bai. The Ietter EXP-4 is dated 2—9-2002. The deceaseci died on 22—10-2032. 21W; case$ of domestéc violence, specific instance of harassment& tcmye is mt pessibie and after the death of bride, the detaiis 0f harassment & tarture is aisa mi possibie: 1m it may be im‘erred frem i‘he evidence of pairenirs & oiher reiatives of ihe deceased and the circumstances that the deceased was subjected to harassment & tartui’e. 28.8hui’m Bai (iiw-Q; mather 0f the deceased, has stated in her evidence that in the year 2332 during Aashae‘h Mah (pmhabiy June) her daughter & san- in—iaw $anjay Kumar came t9 her house and stayed‘for 4~6 months or moire than 4L6 menihe. Surgaram Verena {PW—1'0): father of the deceased, has aise admiiied that apeeiiami No.1 Sangay Kumar & deceased Bhagvati Bai stayed in his house for 8-1G months. Aftei' some monies, appeiiant No.2 took his son and me deceased to his heuee. 2&1? we examme iiie above evidence in the Eight of "i’he evidence regarding torture & harassment it can be safeiy inieired that the deceased was not " comioitahie’ in the house of the aspeiiants. gut the appeiiants have noi ii x offered any exeianaiicn that as i0 why she was unoomfon’abie oi' What were i ihe sireums‘iances which eompeiieci her 8: her husband to ieave the house of the appeiiahis and iive in the house 0i the parents of the deceased} 3a.Evicienee oi $itaram (FW—i), Ramav‘tar Verma (PW-2}, Nand Kumar (PW— 5’; Farmahahd (Pm/‘6), Bhuiin Bai {PW-9}, Durgaram Verma {PW-1G) & Kaieshwar Kumar Verma (PW-t ‘5) shcws that the behaviour of the ih-Iaws of the deceased was not good: they used to torture 8. harass her and as a resuit of such torture, there was occasion tor the deceased 8: her husband to ieave her matrimoniai house. Eut the time gap between the marriage arid the aiiegeci incident which is hear ahout 547 years shows that there was no demahd of doWry, hat there was i‘eguiar harassment by the husband to the deceased and as a tesutt of harassment, ultimateiy the deceased committed suicide. 7M .The prosecetioh is reouired to estahiish by cogent & oredibie evidence that who has tortured 8g harassed the oeoeased. in this case. appeiiant No.1 Saniay Kumar is husband, appeiiant $30.2 Bihariram' is tather-in~iaw, shoeiiant No.3 Ambika Bai is mother-in-iaw 8: appeiiant No.4 $arada is i ; sisteHn-iaw of the deceased AH the witnesses had stazed that in—iaW5 of the desea3ed used to tcm'ure 82 harass the deceased. Mereiy on the basie of generai & vague aiiegations it is difficu‘t to hold that appeliant No.4 $arada, aged about 2G years ai the time of offence, who is not having sepavate idemiiy and who §e daughter of aapenants No.2 8: 3, has harassed & tortua'ed the deceased. 32.3t aooears from the evidence of the witnesses that the deceased had committed suioide as a. resuit of regular harassment & torture. Most of the witnesses have ieveiied vague and generai aiiegations against aii the appeiianis. They have specificaiiy stated that the appeiiants have demanded Rs.5D,OCd/- & 3 Toias of goid. Ramavtar Verma (PW-2), brother of the deceased, has stated in para 3 of his evidence that appeilant No.1 Sahiav demanded Rs.50,GQ(}I- t3: 5 Totes of goid and mother of Saniay used to harass the deceased. Likewise, Kuieshwat Kumar Verma (PW—15), ahother bmther of the deceased. has specificaiiy stated in para 3 of his evidence that he took Rs.1G.GGDt— ioan ftom his sister‘s father-ih-iaw Sitaram and gave it to the deceased to meet the demand. Normaity in the famiiy, demand of money ot vehicte is made by the male membet of the tamttv a Oh the basis 0t the atotesaid evidence it may be inferred that appetiaht Not $enjay Kismet & his father Bihariram, appeiiant No.2, who ate mate members gt dominating members of the family, used to demand some moeey and property and they used to harass 8: torture the deceased. As a tesutt of such harassment & torture, they had created a situation that deceased Bhagvati Bai was left with no other option but to commit suicide and tittimatea‘y, she committed suicide as a resuit of harassment & torture by apeeiiants No.1 8r 2. Apoettaht No.3 atso used to harass the deoeased, but in absenoe GE any specific; aiiegation against her, her act may tat! Within the oategoty of orueity punishabie under $ection 498-A of the i.P.C. but not under $eotion 304$ or Section 3W5 of the ERG. 33m absence of any reiiabie evidence retating to demand of dowry and harassment 8: torture in connection with demand of dowry, conviction of the appeiiants under Section 3G4-B of the LP}: is not sustainable. But the evidence adduced on behaif of the prosecution is sufficient to infer that appeiiants No.1 & 2 have harassed & tortured deceased Bhagvati Bat and as a result of such reguiar harassment & torture, the deceased was compeiied to commit suicide, thereby appeiiants No.1 & 2 have abetted the a 10 suicida of deceased Bhagvati Bai. Althwgh n9 specific charge under Sectioa 3Q6 of Ihe %.§3.C. has been framed against “the appei§anta in suitable cases whare defence has afforded opportunity to meet the caee of harassment & ter‘twe, me accused may be convic€ed undef Section 306 of ihe iPic. in absence of framing ef specific charge under Section 3G6 of the LRC. As has ioeen heid by the Apex Court in the case of Hire Lei and oihea's v. state Kiev?“ 0i McTi, Eeih?‘ even in ease of charge under $eeiion 3&4—8 of the i.P.C., the accused may be heid guiity for commission of offence under Section 306 of the i.P.C., even in absence of specific charge. Fates 15 & 16 of the judgment in the matter of Him Lat {supra} tead thus: “15. it may be noted that though no charge was framed under Section 306 IPC, that is inconsequentiai in View of what has been stated hv a three-Judge Bench of‘this Court in r<. Prema S. Rao v. Yadla Srinivasa Rec? t’o‘. On the facts of the case even though it is difficuit to sustain the conviction under Section 304-8 IPC. there are sufficient materials tor convict the accused-apoeiiahts in terms of Sectioh 386 IPC aiorig with Section 498-A iPCf 34iLearneci trial Court after appreciating the evidence, convicted & sentenced the aeoeiiants tor commission oi offence under Sections 304—3 gt 4Q8—A of the E.P.C. Conviction of the aopeiiants under $ection 394-8 of the LPG. is not sustainabie. but conviction under $ection 498-A of the LPC. is‘ sustainabie against appeiiants No.1, 2 a? 3. Evidence adduced by the prosecution is sufficient for convicting appeiiants No.1 & 2 unoer Section 33 read with Section 34 of the i.P.C. 35.As regards the question oi sentence, apoeiiants No.1 & 2 are in custody since 6-12-29‘32, thereby they are in custody for about 5 years 9 months and apoeiients No.3 8: 4 are in custody from 5-i2—2GG2 to at ieast tiii 11-9- 2%3, thereby they were in custody for about § months. Sentences aiready undergone i3y the appeiiants are sufticient punishment for the aforementioned offences. Again sending the appeiiants to jaii wouid not be just (Z proper and the period aiready undergone by them wouid serve the ourpose. 3am the result. the appeai is partiy aiiowed. & C CC 1.? : 2093 36C: (Ch) 2?i v.» 6 (i) Ccnvmtmn & sentences §mgagsed upon appei§an§ No.4 Sarada unéear Sections 3G4~B 8; @842 of the LP‘Q are set aside am she k5 acauitted 0f the sad charges M Cmuictaon & sentence imposed upon anneliant No 3 under Seaman 394-3 of ‘he P C. 1s also set aeide and she is acqutted of the said charge. (m). Canviciicn of apgneiiant's No.1, 2 & 3 under $ection 4&8-A 0f the LPC is maintained, and they are sentenced to undergo RI. for 9 months & fine of Rs.5,GOD/‘- each: in defauit of payment of fine to further undergo R1. for six months, instead of RL for 2 months & fine of Rs.5,000/—.‘ (iv)Conviction & sentences imposed upon appeiianis No.1 &