^T ^'y' -/- ?. S.r ^^, IUSl^Tffl^mmT-03tMADHXA PHADESH_AiF_J^ALPU& CRMimi, APPEAL N@<l9^.,^«.OF 199@ APPELT.AI? ~(TS~3SJLj /" ' ! Prakash @ Sharikar SOR of Shrt Sakkiiiai Makhija, aged about 25 years, R/0 SiQdhi Coloney/1>ui''g,Police Statioia Durg,District Durg,(M.P.) -. Vs< - BESPOHDENT State ®fmdhya Pradesh CRIMINAL APPEAL UKDBR S^TIOW 374(2) OF CR.P.C* AGAINST 'IHE JUDQI4ENT P&SSE& BZ Ist ADDITIOmL A^^^^^^^YV^^. ^S§§10giJ3®S£,^0^»iN-S<,),r-I]^ SE.SSION5 TRIiL No<48/95 ,,.,,.....Nvc=A. SM.^ljyEKSUS PRAKASH_@_®ANK^.^N. -.A_-...__-_„„.-__..-_-___-._--__—f._-„_-.-_..„..„_.—„„- W SW..- ^es-sss^1 .19/12/95»_ ".^^ <-p< HIGH COURT OF CHHATTISGARH ATBILASPUR Hon'ble Mr. Justice Pritinker Diwaker Criminal AppealNo. 103/1996 APPELLANT RESPONDENT Prakash alias Shankar Versus State of Madhya Pradesh ^ ^ Shri Shashank Thakur counsel for the appellant. Shri Neeraj Mehta PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (21 OF THE CODE OF CRIMINAL PROCEDURE JUDGIVIENT (22.06.2011) This appeal is directed against the judgment and order dated 19.12.1995 passed by the Additional Sessions Judge Durg, iri Sessions Trial No. 48/1995 convictingthe accused/appellant under Section 304-B IPC ard sentencing him to undergo rigorous imprisonment for seven years. 2. Facts of the case in brief are that marriage of the deceased namely Mira Bai was solemnized with the accused/appellant on 16.1.1992 at Durg and that on 27.2.1994 at about 6 p.m. she suffered 98 per cent burn injuries in her matrimonial house. Then the deceased was immediately shifted tothe hospital by one Khoob Chand Sharma (PW-5) where she died on that very day at about 11.45 p.m. Merg intimation Ex. P-11 was given on 28.2.1994 by one Sudha (PW-11). Post mortem of the deceased was done by Dr. R.B. Agrawal (PW-4) vide Ex. P-4 according to whom the cause of death was shock as a result of extensive ante mortem burns. Further case of the prosecution is that a request letter dated 27,2.1994 (Ex. P-13) was written by one Ram Dulare (PW-13) to the Civil Surgeon, District Hospital, Durg mentioning in it that atthe relevanttime he was posted as constable in the hospital wherethe deceased was brought after sustaining burn injuries. According to said witness, on being asked, the deceased had told him that on ^ .-••-";? ":^^ i..^^i ^!Sy%! '-yt// '^^^^- -2-— account of harassment by her husband for demand of dowry, she set herself on fire after pouring kerosene oil. After merg inquiry, FIR Ex. P-12 was registered on 1.3.1994 under Section 306 IPC against the accused/appellant and on completion of investigation charge sheet was filed by the police on 25.3.1994 for the said offence. However, the Court below framed the charge against the appellant under Section 304-B IPC. 3. So as to hold the accused/appellant guilty, prosecution has examined 13 witnesses in support of its case. Statement of the accused /appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. Defence has also examined two witnesses namely Dr. V.K. Sao (DW-1) and Asha (DW-2) in support of its case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above in paragraph No.1 of this judgment. 5. Counsel for the appellant submits that even if the entire case of the prosecution is taken as it is, offence under Section 304-B IPC is not made out against the accused/appellant because there is absolutely no evidence to show that at any point of tirne,^ there was any demand of dowry by him. He further submits that demand of dowry is one of the basic ingredients for the offence under Section 304-B IPC and merely demanding some money would not attract the provisions of that section. According to him, even there is no evidence available on record to show that soon before death the deceased was subjected to cruelty by the accused/appellant. Counsel for the appellant submits that the letter dated 27.2.1994 written by Ram Dulare (PW-13) has no value at all for the reason that there is no evidence on record to show that at the time of making the so-called statement to him, the deceased was conscious and in a fit state of mind to make such^statement. He ,^i-V^^.\ ^A ^ ?°. -2 submits that even the relatives of the deceased such as Shyamlal (PW-1), Ramesh Kumar (PW-2) and Indira Bai (PW-3) have not stated anywhere that the deceased was subjected to cruelty by the accused/appellant for dowry. 6. On the other hand, counsel for the respondenVState supports the judgment impugned and submits that had the deceased not been subjected to cruelty, there was no occasion for her to commjt suicide. He submits that in these circumstances there appears to be no jllegality in the judgment under challenge calling for interference. 7. Shyam Lal (PW-1) - the uncle of the deceased has stated in his evidence that marriage of the deceased had taken place with the accused/appellant two years prior to the date of incident. He has stated that at the time of marriage there was no talk for dowry and that the marriage was performed without any dowry. According to him, the deceased had told him that prior to the incident on two- three occasions there was some quarrel between her and the accused on account of dowry in which the accused had even subjected her to beating. After some time, the deceased came to his house at Tilda and stayed there for two-three months and during this period she had told him that the accused/appellant was harassing her for money. According to this witness, after Rakhi festival the deceased had gone to her matrimonial home along with her mother-in-law and that three-four month thereafter he received a telephonic message regarding hospitalization of the deceased after sustaining burn injuries. According to this witness, inquest was conducted in his presence and his signatures are there on the notice of inquest Ex. P-1 and inquest Panchnama Ex. P-2. In cross examination, this witness has stated that at the time of marriage of the deceased with the accused/appellant, his brother had informed him that the accused/appellant was a good boy and therefore he was getting the deceased married to him. He has further stated that he had attended the marriage of the deceased with the accused and that there was no demand of dowry by the appellant or his '^h^ ' ^.g^ 1 '^^-"•""•^ y "•^ -^- family members. He has stated that after marriage, the deceased used to write letters to him informing that she was happy jn her matrimonial home. According to this witness, he never saw the accused/appellant harassing or beating the deceased. Ramesh Kumar (PW-2) - the father of the deceased has stated in his evidence that at the time of marriage, the accused/appellant was engaged in the business of fruits and 2-3 years thereafter he started harassing the deceased for demand of money. According to this witness, the accused/appellant used to ask the deceased to get money from her father and brother and for that he was subjecting her to beating also. However, as this witness was earning only Rs. 25 per day and was to maintain his three daughters, he showed his inability to the deceased to give the money demanded by the accused/appellant. This witness has stated that when three months prior to incident, the accused/appellant had come to his house to take the deceased with him, he had asked him to send some elderly person for the purpose, as he was harassing her and when 15 days thereafter the mother of the accused came to him, he sent the deceased with her with a request not to harass her. According to this witness, inquest was conducted in his presence and his signatures are there on the notice of inquest Ex. P-1 and inquest Panchnama Ex. P-2. This witness has stated that as he never visited the matrimonial home of the deceased after her marriage, he was not aware of the family condition ofthe accused/appellant. This witness has further stated that attitude of the accused/appellant was like woman but it was not the reason for the unhappiness of the deceased. Smt. Indira Bai (PW-3) - the aunt of the deceased has stated that marriage of the deceased was solemnized with the accused/appellant without any dowry and that at the time of marriage the accused was engaged in the business of fruits which he continued even thereafter. According to this witness, for about one year, the relations between the accused and the deceased were cordial butthereafter she was informed by the deceased that '^ ^- -^~— accused/appellant used to harass her for money. She has further stated that the deceased had come to Tilda on the occasion of Rakhi festival and stayed there for about two months. Thereafter, according to her, the accused came to bring the deceased but she was not sent with him. Thereafter, when the accused/appellant came there with his mother to take the deceased back, she was sent with them. This witness has further stated that 3-4 months after the deceased left for her matrimonial home, she received a telephonic message regarding the fact that after sustaining burn injuries the deceased was admitted in the hospital. She has stated that after marriage, the accused/appellant had met her 3-4 times and he was good by nature though little talkative. According to her, the deceased had come to her house at Tilda 3-4 times but she did not tell her anything about the accused/appellant. On being asked as to why she was not having any issue even after 3-4 years of marriage, the deceased had told her that as she did not have satisfaction with the accused, how could she have the issue and for that reason she was upset. Dr. R.B. Agrawal (PW-4) who had conducted post mortem examination on the body of the deceased has stated in his evidence that the cause of death was shock due to extensive burns. Khoob Chand Sharma (PW-5) is the neighbour of the accused who had taken the deceased to the hospital after the incident. He has stated that the relations between the accused and the deceased were cordial and the appellant never used to harass her nor did he make any demand of dowry. At this stage, this witness has been declared hostile. N.R. Sahu (PW-6) is the Naib Tehsildar who had conducted the inquest on the body of the deceased. Nand Kumar Gupta (PW-7) is the Patwari who prepared spot map Ex. P-6. Smt. Raj Kumari Talwani (PW-8) - the neighbour of the accused/appellant has not made any allegation against the accused/appellant. Smt. Jyoti (PW-9) - the aunt of the deceased has stated that after marriage, the deceased used to visit her house quite often but she never made any complaint against the ji ^ ^^^ts^ t'l &k '^ --••.'% ^^"^ /y' %<?^" -<o- accused/appellant. At this stage, this witness has been declared hostile. Smt. Kanta Bai (PW-10) - another aunt of the deceased has stated that soon after marriage the deceased was not harassed but thereafter accused/appellant used to harass her formoney and the deceased had informed her that the accused/appellant used to demand money from her. However, this witness has also been declared hostile. Smt. Sudha Jha (PW-11) - the female attendant of the hospital is the witness who had given merg intimation to the police. Sub Inspector -Smt. Rama Potdar (PW-12) is the investigating officer who has supported the case ofthe prosecution. Ram Dulare (PW-13) has stated in his evidence at the relevant time he was posted as constable in the hospital where the deceased was brought after sustaining burn injuries. According to this witness, on being asked, the deceased had told him that on account of harassment by her husband for demand of dowry, she set herself on fire after pouring kerosene oil. He has further stated that number of people were present in the hospital and that he wrote the request letter (Ex. P-13) dated 27.2.1994. Asha (DW-2) - the sister-in-law of the deceased has stated that immediately after coming.to know about the jncident she rushed to the deceased and took her to hospital after hiring rickshaw where she became unconscious. She has further stated that she remained with the deceased in the hospital till last moment but no statement was recorded by the police. 8. Minute examination of the evidence on record does not go to show that soon before death there was any demand of dowry and resultant cruelty on the deceased at the hands of the accused/appellant. Even if the allegations made against the appellant are taken as it is, the offence under Section 304-B IPC is not attracted thereto as some of the witnesses have stated that the accused/appellant used to demand money. None of the witnesses has stated anything regarding demand of dowry by the accused/appellant. Moreover, the prosecution witnesses have categorically deposed that marriage of the appellant with the /'/ ^^f^^ ,^'^-, l;^' -7- deceased was settled without any dowry. According to Indira Bai (PW-3) when she asked the deceased as to how she was not having any issue even after 3-4 years of marriage, she informed that as she was not having satisfaction with the accused/appellant, how could she have the issue and because of this she used to be upset. Most important thing in this case is that though the relatives of the deceased were present at the time of inquest and signed the notice and Panchnama of inquest, none of them has come forward with the complaint that the deceased was ever subjected to cruelty by the accused/appellant for demand of dowry. Thus the prosecution has not been able to prove its case beyond reasonable doubt and in this view of the matter, the appellant is entitled for benefit of doubt. 9. In the result, the appeal is allowed. Judgment impugned is set aside. Appellant is acquitted of the charge levelled against him. He is on bail. His bail bonds stand discharged. Sd/- Pritinker Diwaker Judge ^