"••:":.,.li" » ; ,.iili'i ^^lz- HieH COURT OF WHATTISGAW AT BILASPUR Criminal Appeal No^'l^of 2007 Shailendra Kumar and others Vs. State of Chhattisgarh JUDeMENTBE POSTE& FOR PROUNCEMENT ON 11.9.2009 Sd/- T.P. Sharma Judge AP^ HI6H COURT OFCHHATTrS6ARH AT BXLASPUR APPELLANTS (InJail) RESPONDENT Cc«n!naLAppeal No.715 of 2007 1. Shailendra Kumar ©Shailu Tiwar'i S/o Jwala Prasad Aged about 24 years 2. Jawla Prasad S/o Koshal Prasad Tiwari . Aged about 65 years 3. Smt Shashi Tiwari W/o Jawla Prasad Tiwari Aged about^l years All are resident of Raj Kishore Nagar, . Kesar Awas Bilaspur, Police Station- Sarkanda, District Bilaspur' (C.&.) t Versus State of Chhattisgarh Thr-ough: Station House Officer Police Station- Sarkanda Bilaspur, Distt-Bilaspur (C.6.) (APPEAL UNDER SECTION 374 OF THE Cr.P.C.) (SB: Hon'ble Mr. T.P. Sharma, J.) Present: Shri Surendra Singh, Senior counsel with Shri Tarun &adsend, counsel for theappel|ants. Shri Akhil Mishra, Deputy Sovernment Advocate for the State/respondent. JUE56MENT (Delivered on 11th September, 2009) 1. Challenge in this appeal is the legality and propriety of the judgment of conviction and order of sentence dated 3.8.2007 passed by the First Additional . Sessions Judge, Bilaspur, in Sessions Trial No.21/2007 whereby and whereunder learned First Additional Sessions Jud9e after holding the appellants guilty for the offence punishable under Section 304B of the Indian Penal Code for commission of dowry death sentenced them to undergo rigorous imprisonment for 10 yeqrs. 2. Judgment of conviction and order of sentence is challenged on the ground that without there being any evidence of torture and cruelty soon before the death of the deceased, learned Court below has cbnvicted and sentenced theappellants as aforementioned and thereby committed illegaiity. 3. Case of the prosecution, in brief, is that deceased Neera Tiwari was married to appellant No.l Shailendra Kumar and appellants No.2 and 3 are father-in-law and mother-in-law of the deceased. Mar'riage between the deceased and appellant Nja.l was performed on 30.5.2006 in Ratanpur Mahamaya Templ& She committed suicide in the house of the appellants by pouring kerosene upon her and setting herself on fireoiT 9.8.2006. Merg intimation was recorded vide Ex.P/9 at the instance of appellant No.2 on 10.8.2006. Father of the deceased also lodged written compliant vide Ex.P/2 in which it has been mentioned that the qppellants have demanded dowry, committed cruelty and torture upon her daughter and as a result of such torture and cruelty, she committed suicide. After summoning the witnesses vide Exs. P/l and P/4, inquest over the dead body was prepared vide Ex.P/3. Plastic container, burn piece of clothes, broken pieces of bangles and match stick were recovered from the spot vide Ex.P/5. Death body was sent for autopsy vide Ex.P/7. Autopsy was conducted by Dr.Vijay K^mar Verma vide Ex.P/6. Smell of kerosene was coming from dead body,burn injuries we.re found. Brain membrane was congested, carbon particles were present incise brochia and lungs. Burn was ante-mortem and cause of death was shocked as a result of excessive burn and toximiya. Accused were arrested vide Exs.P/8, P/10 and P/ll. Spot map was prepared by patwari vide Ex.P/13. F.I.R. was lodged vide Ex.P/16. Investigating officer has also prepared spot map vide Ex.P/17. 4. Statements of the witnesseswere recorded under Section 161 of the • Code of Criminal Procedur-e, 1973 (in short'theCode'). After completion of inyestigation, charge sheet was filed in the Court of Judicial Magistrate, First Class, Bilaspur, who in turn committed the case to the Cour-t of Sessions Judge, Bilaspur from where First Additional Sessions Judge, Bilaspur received the same on transfer for trial. 5. In order to prove the guilt of the appellants/accused, the prosecution has examined as many as 15 witnesses. Statements of the accused/ appellants were also recorded under Section 313 of the Code where they denied the material appearing against them. The appellants have taken specific defence that prior to marriage, the deceased was working as Nurse and when she left her service after marriage, she was distressed, therefore she pommitted suicide. i. ! ; ' 6. I have heard Shri Surendra Singh, Senior counsel with Shri Tarun Dadsena, counsel for the appellants and Shri Akhil Mishra, Deputy Government Advocate for the State/respondent and perused the judgment impugned and record of the Court below. 7. Learned counsel for the appellants vehemently argued that though deceased Neera Tiwari, wifeof appellant No.l and daughter'-in-law of appellants No.2 and 3 has committed suicide on 9.8.2006 in the house pf the appellants within 2 months and 8 days of her marriage, she died in abnormal circumstances within 7 years of her marriage, but these facts are not sufficient for drawin§ inference that the appellants^ i committed tortureanrf cruelty inconnection with demand of dowry and that too soon before her death. This is a criminal case, the prosecution is required to prove all essential ingredients of the offence beyond all shadow of doubt.Only on the ground of death WithinS monthsunder abnormal circumstances is not sufficient for drawing inference that the present appellants are the persons who have committed "dowry death" of the deceased. This was a case of Samuhik Vivah" in the temple where several persons have mamed in a common platform in the pFesence of reSponsible persons of the society with a view to avoid any transaction of dowry. Learned counsel further argued that evidence of the relatives of the deceased reveals that before marriage the appellants had demanded motor-cycle for appellant No.l which they have provided before the marriage and they have satisfied the dowry demand. After such satisfaction even thers was no occasion for further demand because daughter of Shiv Kumar Tiwari (PW-3) and sister or daushter of otherTelatives have committed suicide and ended her life, therefore, maternal relatives of the deceased have deposed against the appellants. Statements given under sentiments orin ground of announce is not a true statement admissible under the law. In the absence of such demand, cruelty and torture and that too soon before death of the deceased, all dppellants are entitled for acquittal. Leaig counsel also argued that evidence of relatives of the deceased reveals that husband of the deceased i.e. appellant No.l used to drink liquor and used to beat her excludes the possibility of crueltyand torture by appellants No.2 and 3. At the worst, it appears from the evidence that the deceased was notsatisfied with the behavior of appellant No.l who used to drink and beat her, therefore, she ended her life and the same does not fall within the category of torture and cruelty in connection with demand of dowry. 8. Learned counsel placed reljance in the matter of Kans Raj v. State of Punjab and others in which the Apex Court has held that in-lawG deceased cannot be roped in only on ground of being close relations of husband of deeeased. Overt acts attributed to them should be proved beyond reasonable doubt. Learned counsel further placed reliance in the matter of Sharad Birdhichand Sar-da v. State of Maharashtra in which it has been held by the Apex Court that close relatives of the victim have a tendency to exaggerate or add facts. The Court should examine their evidence with great care and caution. Learned counsel also placed reliance in the matter of Salamat Ali and another v. State 'AIR ZOOO Sc 2324 Z4IR'1984 SC 1622 "yt of Bihar in which it has been held by the Apex Court that in the absence of clear and cogent evidence involving parentsof accused in demands of dowry, evidence of prosecution witness stating that there we.re, frequent quarrels, but only between husband and wife, parents are not liable for any conviction. 9. On the other hand, learned State counsel supported the judgment impugned and argued that this is a case of dowry death whe.re the appellants i.e. husband and relatives of the husband had committed dowry death of the deceased within 2 months and 8 days of her marriage. Learned counsd| further argued that the pr'osecution has adduced sufficient evidence to show that the appellants are persons who have demanded motor'-cycle and after receiving motor-cycle they have again demanded Rs.50,000/- and when the parents of the deceased failed to satisfy such demand, then they commifted cruelty and torture upon the deceased and as a result of such torture and cruelty she committed suicide and took drastic action ofending her life.No person including a woman of common prudencewill end his/her lifeon the trifle ground unless he/she was compelled to take such action. Learned counsel further argued that the Court below has rightly convicted the appellants. and sentenced as aforementioned and taking into consideration the facts and circumstances of the ^ase they do not deserve any sympathy. Conviction andsentence imposed upon the.appellants are just and proper'. lO.Inor'der to appreciate the coritentions of the parties, I have examined the evidence adduced on behalf of the prosecution.In the present case, it is undisputed that deceased Neera Tiwari was married to appellant No.l on 30.5.2006 at Ratanpur Temple under social arr'angement (Samuhik Vivah). Appellants No.2 and 3 were father-in-law anct mother-in-law of the deceased. She committed suicide by burn in 3AIR 1995 Sc 1863 the house of the appellants on 9.8.2006. Death was abnormal by suicide within 7 years of her marriage, otherwise also established by the statements of Dr.Vijay Kumar Verma (PW-7), autopsy report (Ex.P/6) that deceased Neera Tiwari died as a result of burn injuries. Burn was ante-mortem and cause of death was shocked as a result of excessive burn and toximiya. 11. Dowry death has been defined under Section 304B of the Indian Penal Code which reads as under;- "304B. Dowry death.-(l)-Where the death of a woman is caused by any burns.or bpdily injury or occurs otherwise than under normal circulT]Stanc^s within seven years of her marriage and j^Js_ shown that soon before her death she wassubjected to criStf^ or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.-For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoevercommits dow/ry death shall be punished with imprisonment for a term which shall not be less thaRii.seven years but which may extend to imprisonment for life. 12.Seetion 113-B of the Evidence Act provides presumption as to dowry dedth which reads as under;- "I 113-B. When the question is whether a person has commitfed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had causedthedowrydeath. - Explanation.-For the purpose of this seetion, "dowry death" shall have thesame meaning as in S.304B6 of the Indian Penal Code (45 of 186Q). IS.Word cruelty has also been explained under Section 498A of the Indian Penal Code which reads as under:- ::'fc.3:aagg|^' ^K"WS, "498A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-for the purpose of this section, "cr'uelty" means- (a) any wilful conduct which is of such anature as is likely to drive the woman tq cominitsuicide or to cause grave injury or danger to life, limb or heath (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her tom et any unlawful demand for any property or valuable security or is on account of failure:by her or any person related to her to meet such demand. ' i 14.FoFdecision of this case, the substantial question involve is whether the deceased wassubjected to eruelty and torture soon before her death in connection with demand of dowry. The prosecution has adduced evidence of maternal relatives of the deceased. KumQribai Tiwari (PW-1) mother of the deceased has deposed that marriage of her daughter was performed at Ratanpur- Mahamaya Temple. Just two days before the marriage, appellants No.l and 2 demanded two-wheeler then theysold some land and provided motor-cycle. After one month of the marriage, deceased Neera Bai telephoned to her nephew Rajesh Tiwari and told that there is dgnger to her life and shecalled them. Rajesh Tiwari informed them and then Rajesh Tiwari and her husband Shiv Kumar Tiwari went to the house of the appellants where both advised to the appellants that they should not beat his daughter. They also requested to permit the deceased to go with them, but the appellants refused their request. After 15 days, appellant No.l came to her house with the, deceased whe.re appellant No.l demanded Rs.50,000/- and when she shown her inability, at that time appellarit No.l annoyed. After sometime at the time of Raksha Bandan festival appellant No.l came to her village and again demanded money and again annoyed. On themorning of Raksha Bandan shecame to know that her daughter' has burn. She'went to the hospital. Deceased died as a result of cruelty and torture committed by the appellants. Shiv Kumar Tiwari (PW-3), father of the deceased, has also corroborated the statement of Kumaribai Tiwari (PW-1). Rajesh Tiwari (PW-2) cousin brother of the deceased has also corroborated thestatement of Kumaribai Tiwari (PW-1). Rajesh Tiwari (PW-5) S/o Shri Chhedilal Tiwar'i, cousin brother of the deceased has also corroborated the same thing. He has deposed in his evidence that one day deceased telephoned him and told that appellant No.l used to consume liquor and used to assault her. She also requested him that they immediately took her, otherwise members of iri-laws house will kill her.jThey advised and come back. He has also deposed that on the demand of the appellants, father of the deceased sold the land and gave C.D.Down Hero Honda motor cycle. IS.Admittedly, Kumaribai Tiwari (PW-1), Rajesh Tiwari (PW-2), ShivKumar Tiwari (PW-3), &ev Kumar Pathak (PW-4) and Rajesh Tiwari (PW-5) are mother, father and brothers of the deceased.As held by the Apex Court in the matter of Sharad (supra), in view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to themat all. Not that this is done consciously but even unconsciously thelove and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and Gaution. Para 48 of the said judgment reads as under:- '48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are closerelatives and friends of the deceased. In view of theclose relationship and affection any person in the position of the witness would natur'ally have a tendency to exaggerate or add facts which may not have beenstated to them at all. Not that this is done 'consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine @ .(^;;,:^^^:'^: such evidence with very great care and caution. Even if the witnesses we.re. speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it. 16.The aforesaid witnesses are close relatives of the deceased, but their evidence cannot be discarded only on the ground that they are close relafives.Only it requires minute scrutiny and if the separation of exaggeration and falsehood from truth would possible, then the Court i' is required to separate tlle truth from falsehood. 17. In the matter of Salamat (supra), the Apex Court has held that in the absence of clear and cogent evidenceagainst the appellants, conviction of the appellants not proper. Para 3 of the said judgment reads as under;- "3. By the conviction of Salim Ahmed, it stands confirmed that the deceased met a suicidal death and that SalimAhmed was responsible for it, whether by himself or conjointly with others. The only point to be examined is whether there is clear and cogent evidence to involve the parents in the demands of dowry made or were they otherwise responsible for inflicting any cruelty on the deceased. We have been taken through the relevant portions of th&r evidence led by the prosecution. Uniformly every witness has said that the family members. of the husband, i.e. Sasuralwale had been making demand::; of dowry in the formof television and scooter. The nature of the demand is some indication. The demand of scooter predominantly must have been raised by the husband.It cannot be expected that the father-in-law would be demanding a scooter for himself or that the mother-in-law needed it for her use. &ifferentconsiderations, however, could, in certain events, apply to the television demand, but here again, it predominants that the husband wanted it more than his parents. Evidence of P.W.l is clear on this point that there were frequentquarrels, but only between husband and wife. In other words, the parents had no part to play in the quarrels between the spouses. P.W.7, the father of the deceased also had said that his daughter had told him that the demand had been made by the husband, but he tiad then hot tgken it seriously. Thus, the allegatfons against :•'" '"* '% 1 '(o^^ J' 10 sr ssS- the appellants are general in nature attributed to the husband's family. They have been identified because they were members of his family. It is not clear on the record as besides them who else were members of the family. It thus appears to us that in the absence of clearand pointed evidence it would be unsafe to maintain the conviction of the parents, on vague allegations that the demand of dowry was made by the husband's family members. In this vjew of the matter, we would record their acquittal." tS.While dealing with thequestion of tendency of relatives of the deceased in the matter of Kans (supra), the Apex Court has held that in-laws of deceased cannot be roped in only on ground of beingclose relations of husbandof deceased. Over acts attr-ibuted to themshoti^d be proved beyond reasonable doubt. Para 5 of the said judgment reads as under:- 5..................In the light of theevidence in the case we find substance in the submission of the learned counsel for the defence that r-espondents 3 to 5 were roped in the case only on the ground of being close relations of respondent No.2, the husband of the deceased. For- the fault of the husband, the in-laws or the other relations cannot, in all cases,be held to be involved in the demand of dowry. In cases wheresuch accusation are made, the over acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the maters of dowry deaths which, if not discouraged, is likely to affect the case of the prQsecutioneven against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the pr'osecution even against the real accused as appears to have happened in the instant case." 19. In the light of decisions of the Apex Court in the matters of Sharad <& Kans (supra), minute scrutiny of the evidence of close relatives is required. Kumaaribai Tiwari (PW-1) hasspecifically deposed that her nephew Rajesh Tiwari and her husband went to the house of the appellants after receiving telephone call from her daughter. Appellant a ^?',i'1 11 No.l came two times to her village and demanded Rs.50,000/-. Appellant No.l also uSed to beat her daughter after consuming liquor. In her detait cross-examination, she has stated that marriage of her daughter' has performed in jAdarsh Vivah and she knows that demand and receipt of dowry is a crime. She has denied the suggestion that the appellants No.l and 2 have not demanded motor-cycle. She has also denied the suggestion that the deceased has not telephoned to Rajesh Tiwdri and Rajesh Tiwari and her husband have not advised to the appellants. She has also denied that after mar'riage at the instance of appellant No.l deceas^sd has left her service of nurse and she was perturbed and aS a re'sult of suGh mental problem, she committed suicide. Shiv Kumar Tiwari (PW-3) father of the deceased, has specifically deposed that appellants No. 1 and 2 came to his house and demanded Rs.50,000/- and again appellant No.2 demanded Rs.50,000/-. Ke has lodged written report (Ex.P/2) on 10.8.2006 in which it has been specifically mentioned that the appellants have demanded motor-cycle and has given C.&.bawn motor" cycle. After marTia9e, appellant No.l also demanded Rs.50,000/-. He has admitted in para-9 of his cross-examination that he was in police service and he knows that demand and giving dowry is a crime. He has denied the suggestion that who are unable to give dowr-y, performed the marriage in Adasrh Vivah system. He has also 'denied the suggestion that appellants No.l and 2 havenot come to his house and demanded dow/ry. He has admitted in para-15 of hiscross-examination that his daughter used to compel that appellant No.l used to consume liquor and used to beat her. Rajesh Tiwari (PW-5) who has received telephone has specifically deposed that fatherof the deeeased has given motor-cycle before the marriage of her- daughter. He has given number of telephone. He has admitted in para-6 pf his cross-examination that when they went to the house of the appellants, his sjster- told him that appeltant No.l used toconsume 12 :^) liquor and used to quarrel with her. She also told him that they immediately took her,otherwise appellant No.l will kill her. ZO.There are some contradictions and omissions in the statements of the witnesses with their previous statements recorded by the police (Exs.D/1 To &/3). Shiv Kumar Tiwari (PW-3), father of the deceased, has deposed that after 15 days of marriage of his daughter, appellants No.l ond 2 came to his village and demanded Rs.50,000/-, but this evidence does not find place in his previous statement (Ex.P/2). This part has not beensupported by other witnesses, but otherwitnesses have deposed that aftec receiving telephone call, he went to the house i. of the appellants where he met with the appellonts. Statement of Shiv Kumar Tiwari (PW-2) reveals that demand of Rs.50,000/- was between appellants No.l and 2, buT he has exaggerated and tried to involve appellant No.3 who is wife of appellant No.2. 21.1ncident took place between 2 months and 8 days of the marriage of deceased Neera Tiwari within a short span of her marriage and first demand of motor-cycle by appellantsNo.l and 2 even before th& marriage shows tendency of demand of dowry by appellants No.l and 2 which they continued even after marriage till the death of the deceased. The deceased has committed suicide in the house of the appellants on the. day of Raksha Bandhan festival. Evidence of day-to-day conversation, demand or cruelty made by the husband and his relatives arenot normally possible. 22.While dealing with the question of death