(.53: Han'b!e Mr. T.P.$HA!§MA, J; {iriginal Aggeal N‘-0.4é1 af 2006 Kumar @ Ram Kumnr State of Chhgrrisgarb JUDGEMENT Pas? far 23/7/2009 S Sd7-\ J T. P. Sharma Judge ’7' ‘"m—;\r ‘ 7 ' i‘ ~ ‘ HIGH €QU§RT OF CHHATTI$GARH AT $ILA-SPUR Criminai Appeoi Na.46i of 20G6 APPELLANT Kumar @ Ram Kumar, $19 Shri Immri (in icii} Dewangan, aged abou‘r 31 year's, Occupm‘ion — Labour, R/o Konar‘i, Poiice Stutign Pulgaon, District Durg (Chhaffisgarh) Versus RE5PQNDENT State of Chhnttisgarh Through Sm‘rion House Officer, Poliqe Sfafion - Puigaon, Disfr-im" Durg (Chhaffisgarh) (APPEAL UNDER SECTION 374 (2) OF THE CQDE OF CPIMINAL PROCEDURE, 1973) ($Q: Hon'ble Mr. TuPg Ehagrma, J) - Present Mrémdeep Shrivasmvai counsel for the ngpe!!an1'. MrAkhii Mishm, DyGovtAdvocm-e for The Smfe/respondent JUDGMENT (Passed on 23“ My, 2009) This appeal is directed against The judgment of canvic'rion mad order of sentence dafed 25.5.2Q0é passed by fhe Firsf Addi‘rionel 5essions Judge, Burg, in 5essions Trial No.55/2005 whereby and whereunder The learned FirS‘r Additional sessians Judge after haiding fhe agpellmt guih'y, who is husband of deceased Pushpd Dewcmgani fer the offence punishable under Sec‘rinns 498-A‘, 304-8 and in alternate Secfion 306 of fhe Indian Penal Code sentenced him to undergo rigamus imprisonmen? far 3 years and 1'0 pay a fine of Rs.1QDQ/-,. in ' defaui'r af payment of fine to further undergo simple imprisonment for 3 months and rigorous imprisonment for 10 years and to pay a fine of Rs.2000/-, in default of payment of fine to further undergo simple imprisonment for 1 year and no v separate sentence has been imposed under Section 30$ of the Indian Pena! \ \ Code. 1 ‘ \ 2. Judgmen‘!‘ 9f convicticn and order of sentence is chaiienggd an The ground 1mg? wifhou? them being an iota 9f evidence of demand cf dawry 59m before the death (3f The deceased and termre and cruel'tyi the Cour‘r bebw has cmvieted and senfenced the appellant as afaremen'rioned and thereby commi‘rted on illegality. 3. Case 9f the pmseeution, in brief, ie That The presen‘r eppellcm-l is husband of deceased Pushiga Dewengan who was married will! The appellant in The year 2002. A? fhe time 9f marriage sufficien‘l' articles were given ta the appellant but after marriage 'rl'ie aapellan'r and their relatives have demanded dowry especially motorcycle and as a result of tar-tare and cruelty in connection with the demand of dowryi deceased Pushaa Dewangan has committed suicide an 23.1.2005 by hanging herself. Merg intimation was registered vide EXP/9. Investigation officer proceeded for the scene of occurrence and inquest over the body of the deceased was preaar‘ed vide EXP/6 after summoning the witnesses (Ex.P_./5). Articles of dowry were seized vide Ex.P,/7. 5pot map was prepared vide FxP/8. Rope (sari) was seized vide EXP/'10. Dead body was sent for autopsy. Autopsy was conducted by Dr.5.R.Churendra (PW-3) who opined that cause of death was asphyxia as a result of hanging. F.I.R. was lodged vide EXP/2. 4. After recording the statements of the witnesses under Section 161 of the Code of Criminal Procedure, 19.73 (in short ‘Code‘) and after completion of investigation, charge -heet was filed before the Judicial Magistrate First Class, Durg who in turn committed the case to the Court of Sessions, Durg from where learned First Additional Sessions Judge, Durg received the same on transfer for trial. 5. In order to arove the guilt of the accused/appellant, the prosecution has examined as many as 13 witnesses.’ Statements of the accused were recorded under cSection 313 of the Code where they denied the circumstances appearing against them and innocency and false implication is pleaded. 6. Learned First Additional Sessions judge after affording an ooportunity of hearing to the parties, acquitted ltwari and Raiim Bai {father-in-law and of The dgceasA) and convicfad and sen‘renced fhz appeilnnt as aforemanfioned. 7. I have haard Shri Sandaep Shrivasmva, counse! for The appellant and Shri Akhi! Mishra, Depuiy $0vemmenf Adyocafe far The STate/respenden? and gerused fhe judgmen? imrnugnad and racord 9f the cgur't behw. 8V Learned counsel for the appelkm‘? vehemenfly argued tha? fheugh decmsed Pushpa Bai, wifg of ‘rhe agpellcmt, died within three years 9f her marriage in abnnrmal circumstances by hanging in fhe house of The aggeilani' bu? This fact are naf sufficien‘r 1'9 cansfim‘re the affence cf dewry death and offence punishable under 5ectlons 498-A, 304—5 and in al‘rer'mfe Sectlan 306 of The Indian Penal Code. The prosecu'rlen'has arterly felled m adduce any evidence relating to demand 9f dowry that 1'90 saon before The dea'i'h of deceased Pushpe Bdi and formre and cruelfy in cannectian with demand of dowry. Learned counsel fur‘l'her argued the? eti- The fime ef inquesf aver The deed bddy of The deceased, relefiyes cf The deceased were presen‘r bu‘i‘ fhey have mi stated anything relating ta demand of dowry. Penchuram Dewerigan (PW-1) father of the deceased has deuosed that relatives 9f the ephellent have demanded motorcycle but he has depased that it was demanded in the year 2092. The prosecution has utterly failed to prove the continuity of demand or demand soon befare the death of the deceased. Learned counsel placed reliance n the matter of Pram guawar v. State of Raiasthan‘ in which it has been held by the Apex Court that for raising presumption of dowry death under section 113% of the Evidence Act there must be prmgimity and live-link between the effect of cruelty based on dowry demand and the concerned death. 9. n the other hand, learned counsel for the $tate!respondent.:supported the judgment imougned and argued that charge sheet was originally filed against the husband, father~in-lau’u and mother-in-law of the deceased but after ’ minutely scrutiny of the evidence adduced on behalf of the prosecution,‘ learned 5 First Additionai $essions Judge has only convicted and sentenced the appellant 1‘ i.e. husband of the deceased and has acquitted tather-in-law and mother-in-law 1 l ; 12009 CRI.L.J.1123 r i O 9f The damaged. The avidanaa adducad on behaif 9f irha prgsaauiien is sufficien't for warranting canvie‘rion and senience against the appellant Learned cmmse! fur-1'hzr crgugd ‘tha'!’ accerding To case of prosgcu'rion, momr-cycla was demanded. I? shows Thu? it was demanded by the appellant and for the use 9f Mm and rm? for his old aged father and mather. 19‘ 1n arder T9 npgmcinw the cementims of the Yrmrfies, I have examinad the evidence adduced on behalf of The per-ties In the present case, marriage took place in the year 2002 and she died as a result of hann herself on 231.2005 in the hause the aepellent. Decmsed Pushe Bai wife of the appellant died within three years of her marriage in abnormal crcumstances in the hcuse 9f the aapellant as a result of suicide is nat disputed an the other hai alsa established by merg intimation (Eek/9) lodged b ather of the appellant, inquest repart (Ex.P./6), EIR‘ (Eff/2); autopsy report EXP) and statement of Dr..R.Churendra (PW-3). . In order ta establish the aamplicity af the appellant i. t.e crime in questian, te. prasecutian has required ta prove the fact tha oon bere the death of the deceased he appellant has demanded dowry and comitted celty and tarture and thereby compelled or aided death of eceased Pushpa Bait Panchuram Dewangan (P-1) father of the deceased has eposed that after the arriage of her daughter, she was normal for sometime but afterwards he ce m am to know by his son that her in-law’s relatives were demaed motorcycle to them, then he informed that e will give motorcycle aft marriage of her ecod daughter Deepa and in the year 2005 h came to know tat her daughter has committed suicide. He has also stated in para-4 of h idence tht on the date o such oission o suicide he sent to police station Pulgan for lodging the report, then police advised him to giye report in writing then he filed written report (ExP/l). Dhanesh Kumar (PW-5) brother of the deceased has also deposed that after 6 months of the marriage of his sister, the appellant has started cruelty in connection with demand of dowry and the appellant has demanded motorcycle and used to commit cruelty upon- her sister. Lastly Pushpa died. 6ongaram Dewangan (PW-é} has also corroborated the statement of Panchuram Dewangan. Ramkumar (PW-9) brother of the deceased has deposed gig of p i , nd y f (/3 $ 11 h t s fo t m ru d W d nd h er sn e h is ev a f cmm f o that after 4 to 6 manfhs of marriage 9f her sister; the agpellan'!‘ smrmd cruelw and uged 1'9 beat 'rhe. damaged and 'thzy alsa demandgd motorcycle and lastiy his sister- died. The present apgellant (husband of deceased Pushpa Bai) has not offered any explanation rehting t9 death of his wife who died in the house of the epgelldnt as e result of hanging. 12. Written complaint was mode on 241.2005 second day of the alleged commission of suicide in which it has been specifically mentioned that the deceased has told her brother Ashok 15 days prior to the accident that if they will not aravide motorcycle then present appellant Le. husband will kill her but the prosecution has not examined witness Ashok, brother of the deceased. Panchuram Dewangan (PW-1) father of the deceased has admitted in para-12 of his evidence that in the year 2003 at the time of Teeja festival when .e. daughter came at that time she told relating to demand of motorcycle by the accused/appellant. He has specifically denied the suggestion that the appellant has not demanded any dowry and has been implicated falsely. Dhanesh Kurnar (PW-5) has deposed in para-3 of the evidence that at the time of previous Teeja festival Pushpa had told him that her husband dema.ds motorcycle and commits cruelty. He has also admitted that before his evidence discussed and decided what to depose but has specifically denied the suggestion that the appellant and other persons have not demanded motorc,cle. 6angaram Dewangan (PW-6) maternal uncle of the deceased has also supported the case of prosecution. He has specifically deposed in his evidence that persons of in-law’s house of the deceased were demanded sewing machine and motorcycle and used to commit ruelty, but the defence has not asked anything to these witnesses relating to factum of such demand and cruelty. Ram Kumar (PW-9) brother of the deceased has specifically deposed in his evidence that in connection with demand of dowry the appellant and their relatives had assaulted the deceased which is not find place in the statement of other persons. lt reveals from the statements of Panchuram Dewangan {PW-1),. Dhanesh Kumar (PW-.5), (5mgararn Dewangan (PW-6) and Ram Kumar (PW-9) that accused and their relatives used to demand motorcycle and commits cruelty upon the deceased and the appellant is a person who has demanded motorcycle. There are discrepancies in the statements of the c witnesses bu? may cm trivia! and they are consistgnf relating To demand of mgmmvcla. , 13. in Pram Kaaww (supra), tha Apex Cour? has held That The prosecution is required its prave axismnce of a proximate and live-link between The effecf 0f cruehy based an dowry demand and fhe cancemad dag‘th. Pam 12 of 1kg said ‘jlldgmgwg’ reads (is L!!’!d€!"1- “12. A canpint reading, cvf Section 113-B of thz Evidence Act and Secfion 304-3 IFC shows Tha‘r there must be maferial “to Show thaw saon befnre her daafh the vic‘rim was subjecmd 1'9 cruei'ry or harassment Prosecu'rion has To ruie ouf fhe possibRi‘h/ of a nufurcd or accidenfu! deui‘h 50 us f0 bring i1” withi. fine gurviaw of 'ihe ‘daa‘i’h occurring oihzrwise Than in normal circums'rancesi The expression isoon beforei is very relevan'l' where Secfion 113-3 of ihe Evidence Ac? and $eciion 30443,. IPC are pressed into service. Prosecution is 9biiged To show Thai soon before The occurrence There was crueiTy or harassmew‘r and oniy iii The? case presumpi‘ion operm‘es. Evidence in ThoT regard has To be led by prosecu'tion. ‘Soon beforei is o reiaTive Term and i1 wouid be depend upon circumsfahces of each case and no sTmiT—jacke‘r formuia can be laid down as To who‘i’ would consTiTuTe o oeriod of soon before The occurrence. iT would be hazardous To indico‘ie unv fixed period, and Thoi' brings in The imporTance of a proximiTy TesT both for The oroof of on offence of dowry deoTh as well os for roisinq o presumofion under SecTion 113-8 of 'l'he Evidence Act The expression 'soon before her deo'ih' used in fhe subs’ran‘iive SacTion 3Q4-B, IPC and SecTion 113-8 of The Evidence AcT is presen‘r wi'ih The idea of proximiTy Test No definife period has been indicfed and The expression ‘soon before’ is noT defined. A reference To expression ‘soon before' used in SecTion 114, Iiiusi'rafion (a) of The Evidence Ac? is reievon‘r. IT ioys down Thof a Courf may presume ThoT a man who is in The possession of goods ‘soon ofTer’ The Theft, is eiTher The Thief or hos received The goods knowing Them To be sToien, unless he can occounT for his possession. The deTerminoTion of The period which can come within The Term ‘soon before' is lefT To be deTermined by The CourTs, depending upon focTs and circumsTonces of each case. Suffice, however, To indicaTe ThoT The expression ‘soon before would normolly imply ThoT The inTervol should noT be much beTween The concerned cruelTy or horossmenT and The deoTh in quesTion. There musT be exisTence of a proximoTe and iive-iink beTween The effecT of cruelTy hosed on dowry demand and The concerned deaTh. If alleged incidenT of cruelTy is remoTe in Timef‘and has become sTale enough noT To disTurb menTai equilibrium of The waman concerned, it would be of no consequence.” 14. In this case. according to casa of prosecution, the appelmn‘!‘ demanded mofor'cycle after- his marriage and 'rhere was no ofher- occasien for such demand excep‘r in cannec-ricn with marriage. Deceased died within few months probabiy six menths of the iest statement af the deceased relating to demand. 1t is also not disputed that such demand was not fulfilled by the parents of the deceased til! her death and statements of the witnesses show that the appellant was regularly making demand far last 3 years. The prosecution is required to prove proximity and lie link between cruelty based on dowry demand and concerned death but it is not possible for the prosecution to prove that demand was made daily or periodically within the interval of week or month. The word soon before her death is question of fact and defer from the fact of the case 15. In the present case, the prosecution has established the fact that the appellant has demanded motor-cycle since last 2 % years and prior to fulfilling of the demand the deceased committed suicide raised the presumption that the present appellant has committed cruelty upon the deceased in connection with demand of motor—cycle and as a result of such cruelty no option was left to her except to own her life and thereby she has committed suicide shows the continui. of demand and nexus between death and demand . bv l motor-cycle. I 16. After appreciating the evidence available on record the learned Court below has convicted the appellant for the offence punishable under Section 493—A and 304—3 of the Indian Penal Code and sentenced him to undergo rioorous J imnrisonment F for .3 years and V fine of RsJGOI- and rigorous imprisonment for 10‘years and fine of Rs.2000./-. Conviction is based on the credible and clinching evidence sustainable under the law. Learned Additional Sessions Judge has not committed any illeoality in convicting the appellant. The sentence awarded by the Court below is neither excessive nor unjust. 17. For the foregoing reasonsi the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. Sd/- T. P. Sharma Judge 3/- ‘l