HIGH COURT OF CHHATTISGARH AT BILASPUR ~ CRIMINAL APPEAL No. 620/ 1992 APPELLANT-S Yagiamitra Gupta and ant oher Vs. State of Madhya Pradesh, Through Distt. Magistrate, Raigarh. " ’ \IRESPONDENT Post for pronouncement ofjudgment on 2‘3/08/2010; . \ Sd/— T.P. Sharma ‘ ‘i a Wqge ' [r 7‘! / - HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPEAL No. 620/ 1992 Yagyamltra Gupta son of Shrl Rav1shanker 3 Gupta, aged 27 ¥ t years, res1dent of village Kensara, ‘ P.S. Pusour, District Raigarh, Narayan Prasad Sahu aged 4.0 Smt. Jaishree Sahu Widow of Shri' v years, resident of village Hardi, ‘P S Sarsinva Distt Raipur ‘presently res1d1ng at Itwar1 Bazar Ralgarh State of Madhya Pradesh, Through Distt. Magistrate, Raigarh. Cnmmal Appeal UIS 374 of the Crlmlnal Procedure Code (SB .I-Ion’ble Mr. T P Sharma, J ) Present:- Shri Sandeep Shrlvastava, Advocate for the appellahts. Shri RR. Sinha, P.L. for the State/respondent. JUDGEMENT (Passed on 28/08/2010) t J , Y w 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 9/6/92 passed by First Additional Sessions Judge, Raigarh in Sessions Trial No. 129/90 whereby and ,Where under after holding the ~ appellants'guilty for the commission of offence punishable under Sections 306 85 498-A of the Indian Penal Code and under Section 4 of the Dowry Prohibition Act, convicted and sentenced; the appellants rigorous imprisonment for 7 years, ‘rigorous imprisonment for 3 years 8r, rigorous imprisonment for 6 months. , APPELLANTS V 1 . 2 . Vs. RESPONDENT Conviction is challenged on the ground that without any iota of evidence sufficient for the conviction of the appellants Court belbw has convicted and sentenced the appellants as aforementioned and thereby committed an illegality. Brief case of ‘the prosecution is, Nitambini alias Smt. Geetanjali Wife of appellant No. 1 Vvas residing with the i ‘L ‘ appellants. She- was married with appellant No. 1 Yaglamitra on 16/5/89. After her marriage appellant No. 1 her husband and appellant No. 2 her .sister—in—law used ' to Commit cruelty and torture in connection with the demand of dowry and as a result of such cruelty and torture deceased Smt. Geetanjali consumedV‘poison on 30/3/90. She was immediately shifted to K.G; Hospital, Raigarh where she died on 30/3/90. Marg intimatiOn Was recorded vide Ex. P—22. After summoning the witnesses vide Ext P—14, inquest overthe dead body of the deceased was prepared v1de Ex P—15 Dead body of the Geetanjah was sent for autopsy to Pnmary Health Centre Portha Where team of doctors conducted autopsy v1de Ex. P—5‘ viscera were preserved; no definite opinion for cause of death was given by doctors. During the course of investigation, articles were seized from the spot vide Ex. P- 1. Bottle of Democon'was 'seized vide EX. P—16'. First Information Report was lodged vide EX P—20. Sealed 1.,-( 1" articles were sent for chemical examination including ' ' viscera of the deceased vide EX. P—10. Statements of the witnesses were rec‘orded under Section 161 of the Code ‘of Criminal Procedure, 1973 (in short ‘the ’ ‘ ‘ Code’) After completlon of the Investigatlon charge sheet was flled before the Jud1c1al Maglstrate F1rst Class Raigarh who in turn committed the case to the Court of Sessions, Raigarh from' where learned First Additional Sessions Judge, Raigarh received the case on transfer for trial. ' In order to proof the-guilt of the accused/appellants ‘ prosecution examined as many as 23 witnesses. Accused a persons were examlned under Sectlon 313 of the Code where they demed the Circumstances appearing agalnst them, 1nnocency and false 1mp11catlon are claimed. They have also examined the defence witnesses DWI Shantidevi 8L DW2 Gauribai. They have deposed that appellants have never committed torture and cruelty on account of u demand of dowry. Relation between parties Were cordial; 'some time before her death her behavior was not normal F She was w1111ng to marry With one boy subsequently who . married to another woman on account of such frustration S she has committed su1c1de. ‘After affording an opportunity of hearing to the parties learned F1rst Add1tional Sess1ons Judge Ralgarh has V @ the appellants as convicted v and sentenced aforementioned. ‘ 7. Mr. Sandeep Shrivastava, Advocate for the appellants and Mr RR Smha, P L for the State/respondent are heard Judgment 1mpugned and record of Courts below perused 8.‘ Learned counsel for the appellants vehemently argued _ that 1n the present case prosecut1on was requlred to proof the fact that deceased Smt. Geetanjali has commltted suicide.vAppe11ants had aided or instigated her suicide; They have committed cruelty and torture and they have demanded dowry but in the present case, v even' prosecution has failed to prove the fact that deceased Smt Geetanjali has comrmtted swelde Prosecution has also ' failed to prove that commrssion of torture and cruelty by the appellants and demand of dowry by appellants. 9. Learned counsel for the appellants placed rehance 1n the matter of Prem Kanwar v. State of Ramsthanl 1n which Apex Court has held that 1n order to proof the dowry death, prosecutlon 1s requlred to proof prox1mate and-l1ve- link between demand of dowry and death of the woman. 10. Learned counsel for the appellants further placed reliance in the matter of Bhaskar Lal Sharma 85 Anr. v. Monicaz ". 1n whlch Apex Court has held that only allegatmn of. 2009 CR1 L J 1123 2010 AIR SCW 2809 \ \2 kicking by mother—in-law to daughter-in-law is not a cruelty. 11. Learned counsel for the appellants also placed reliance in the matter of Ramesh and others v. State of Tamil Nadu3 in which Apex Court has held that direction t_o deceased to wash WC or imputation against her is not a torture. 12. Learned counsel for the appellants also placed reliance in the matter of Kishangiri Mangalgiri Goswami v. State of Gujarat4 in which Apex Court has held that mere proof of cruelty is not sufficient to convict the accused under Section 306 of the Indian Penal Code however, accused is liable to convict under Section 498—A of the Indian Penal Code and under Section 3 of the Dowry Prohibition Act. l3. Learned counsel for the appellants also placed reliance in the matter of Ra esh Rameshbhai Manubhai Makwana v. State of Gujarat5 in .which it is held that evidence of harassment in dying declaration not supported in independent evidence or not reliable for conviction of the appellant under Sections 306 82; 498—A of the Indian Penal Code. 14. On the other hand, learned P.L. for the State/respondent opposed the appeal and submits that in the preshnt case, 3 2005 CR1. L.J. 1732 4 2009 CR1. L.J. 1720 5 2009 CR1.L.J. (Noe) 390 (GUJ.) commission of suicide by Smt. Geetanjali is not disputed. She was married with appellant Ya§amitra on 16/5/89 and she committed Suicide on 30/3/90 within’lO months of her marriage. This evidence. adduced on behalf of the prosecution are sufficientvfor drawing an inference that appellants have committed torture and cruelty. in connection with the demand of dowry and they have also ' demanded for dowry. As a result of such torture and cruelty, no option except to end her life was left to the complainant, finally she committed suicide. In order to appreciate the argument advanced on‘behalf of the parties, I have examined the evidence adduced on behalf of the prosecution. 16. In the present case, unnatural death as a result. of i poisoning has not been substantially disputed on behalf of the appellants/accused persons even otherwise evidence of PW3. Dr. M.D. Joshi and autopsy report Ex. P—5, absence Of appellant Yagyamitra in reply to the question No. 23, absence of appellant Jaishree in reply to the question No. 23- of examination of accused under Section 313 of the Code . are sufficient to establish the fact that . deceased has consumed poison and she died as a result of consuming poison and thereby she has committed suicide. As regard the complicity of the appellants in crime in question; prosecution had “adduced the evidence to 15.‘ . Lj" . \Y‘ establish that present appellant Yagamitra, husband of the deceased and appellant Jaishree, sister—in~1aw of the deceased used to demand of Scooter and on account of such demand they used to commit torture and cruelty . ' upon the deceased Smt. Geetanjali. 18. In order to establish the aforesaid facts, PW7 Yateendra Kumar Pradhan, father of the deceased has deposed in his evidence that just after 4 days .of the marriage of . Nitambini, his son Sharad Kumar Pradhan came from the ' house of the appellants and told him that all the articles given. at the time of marriage were lying in the open place and appellant Jaishree has told him that they will kept the articles inside dnly after receiving Scooter, he has also informed his father that his sister was unhappy on' account of demand of Scooter. He has further deposed in his evidence that his daughter was married with appellant Yaglamitra on 16/5/89 and she died on 30/3/90 Within 10 months of her marriage. During this period, his daughter only came for‘4 times to his house and she used to tell him V relating to demand of Scooter by appellant Jaishree even s‘he has told him if her parents will not give Scooter she will not go to her maternal house. Defence has cross-examined this witness at length but this witness has specifically stated that both the appellants have demanded i .. Scooter. 19. , PW8 Sharad Kumar Pradhan, brother of the deceased has, also substantially corroborated the evidence of his father ‘PW7 Yateendr'a Kumar Pradhan. In his cross-eXaminafion; he has further supported his version relating to demand of Scooter‘by the appellants. PW9 Tillottarna, mother of the deceased and PWIO Padmottala,‘ au’nty‘of the deceased Pradhan.. Other witnesses PWll Savita, PW12 Tapaswini, PWI3 Deven‘dra'Kumar Pradhan, PW15 Devraj Pradhan Pradhan. Definitely there is a contradiction and Omission of statements of these witnesses but there is a consistency relating to demand of Scooter by the appellants ‘ Yagramitra and Jaishree. 20. PW18- Shakuntala Bai has also corroborated the case of the prosecution to the extent that deceased has consumed " poison but in Para-2 of her cross-examination, she has deposed that being asked the deceased told that she was willing to marry with one boy’ of village Khadam and ultimately he had married therefore, she do not want to v alive but this fact does not find support from any other source's‘. Even defence ’has suggested this fact fo PW7 Yateendra Kumar Pradhan father of the deceased, which he denied in Paras— 8 85 9 of his cross—examination that'he have corroborated the evidence of PW7 Yateendra Kumar ' and PW16 Phanindra' Kumar Pradhan have also corroborated the evidence 'of PW7 Yateendra Kumar L has stated this fact first time in the court. This part of the ’ evidence does not inspire confidence to Wipe out the entire' story of the prosecution. Defence has examined DW2 Gauribai, she hasdepos'ed in her evidence that deceased Smt. ‘Geetanjali told her that she was Willing to marry with one boy of her village and even she had gone to attend his marriage and after marriage of that boy she was unhappy but in her cross; . examlnatlon she has not proved thls fact to any person but defence has examined th1s Witness to prove th1s fact Which she has not told to any of the accused or any person. These circumstances itself are sufficient for discarding the evidence of these ‘witnesses by giving suggestion to PW7 Yateendra Kumar Pradhan and examining the defence witness DW2 Gauribai. Defence has tried to show that deceased was not ‘willing to marry with appellant Yayamitra and she was willing to marry with another boy of‘ his village and even she has attended his marriage. Normally, if some girl is intended to marry with boy then either She will marry that boy or at least she ' will not attended his marriage ceremony when the boy will marry to another girl. If this fact' will come into the know1édge of husband and relatives orth‘e huéband of that g1rl then they W111 definitely res1st even they may refuse to accept that glrl ’21. “w 22. Deceased has attended marriage o'f that boy it shows that she was neither inclined for marriage with that Boylwho was residing in her maternal village nor she was unhappy by marriage of that boy with another girl; Thisris after y thought defence after death of bride w1th1n 10 months of her marrlage Prosecution has led ev1dence relatmg to demand of Scooter by the appellants and the commission of the suicide by Smt. Geetanjali by consuming poison in . the house of the appellants Definitely, she was havmg another option to leave her matrimonial house or to lodge the report to the Pohce but matrlmonlal tie 1s a dehcate I i i tie based on trust and confidence. EV" g 23. 'In the case of domestic violence or harassment normally: the affected person 1 e daughter 1n law does not report or ' N" Inform anyone about the harassment or torturous attltude of her husband or 1n laws to other persons but as and when she gets the opportunity, she informs about it to‘her parents. The parents of the bride normally do not react immedlately but wait for an approprlate time 1n the hope, of amlcable settlement between the parties and to av01d‘ further complications whlch may arise in future? But ‘when the matter becomes intolerable then the daughter- p. in—law or the affected lady discloses the torturous attitude of her husband and in-laws neighbour and other persons related to her to get the dlspute resolved Wlth thelr ' In such a case spec1f1c Instance of harassment and torture 1s not pOSSIbIe and after the death of brlde the deta11s of harassment and torture 1s also not possrble but 1t may be Inferred form the ev1dence of parents and others relatives of the deceased and the oircurnstances that the deceased was subjected to harassment and torture. 25. As held 1n case of Ramesh and others (Supra) that v'marrled s1ster of husband permanently l1v1ng at her matumomal home stayed at her parents house, for some days then any aliegation against her relating todemand of dowry do not amount to harassment With a View to coercmg mformant or her relatlon to meet an unlawful demand for any property or valuable securlty but 1n the present case Slster—ln—law 1 e appellant No 2 1s a w1dow , and permanently res1d1ng 1n the house of appellant No l Th1s 1s not a case 1n Whrch she was causal v1s1tors Case ‘of Ramesh and others (Supra) 1s d1st1ngu1shable on the ground of facts. ' 26. Interventlon 24.: ‘At held- in case of Rajesh .@ Rameshbhai Manabhai j * Makwana (Supra) that 1n absence of corroborat1on by mdependent sources the factum of harassment by l V1nterested w1tnesses 1s not rehable In the present case “ w' y’“ ‘1- V evidence of interested witness has been well corroborated by the independent witneSs therefore the case‘ of Rajesh @ vRameshbhai Manubhai Makwana (Supra) is distinguishable on the ground of facts. 27. As held in case of Prem Kanwar (Supra) that in case of dowry death prosecution is required to prove proximate ‘ and live—link between demand of dowry and death of the I woman‘but in the present case conviction is notlunder Section 304-B of the Indian Penal Code therefore the case ‘of Prem Kanwar (Supral is distinguishable 'on the ground ' of facts. 28. As held in case of Bhaskar Lal' Sharma 85 Anr. (Supra). that only allegation of kicking by mother-in—law to ~ daughter—in—law is not a cruelty but in the present case r prosecution has adduced the evidence to. show’ that present appellants have regularly demanded Scooter and ’ this is not a case of use of criminal force and case is based on continuous demand of Scooter therefore the .case of Bhaskar Lal Sharma 85' Anr. (Supra) is distinguishable on the ground of facts. 29. In the present case there is consistency in the statements. of PW7 ‘Yateendra Kumar Pradhan, PW8 Sharad Kumar Pradhan, PW9 Tilottama, PWIO Padmotta’la; PWIH Savita, .PW12 Tapaswini, PW13 De‘vendra Kumar Pradhan 8L PW16 Devraj Pradhan relating to demand of Scooter by appellants which shows that from the second day of ‘marriage these appellants i.e. husband of the deceased, widow sister-in—law of the deceased who are residing in thehouse of appellant No. I Were demanding Scooter and on account of such demand which was not fulfilled by the parents of the deceased. She was unhappy and she has committed suicide within 10 months of her‘ marriage. Definably the demand of such Scooter from second day of marriage of deceased constitute the demand of dowry punishable under Section 4 of the Dowry Prohibition Act. In order to prove the offence punlshable under Section 30. ' ' 306 of the Indian Penal Code prosecutlon ls requ1red to r prove the fact that on the date of comm1ss1on of su1c1de accused has abated the su1c1de by aidlng or instigatlon. In the present "case prosecution has. not adduced any evidence to show that' what sp'ecific 1nc1dent was- commltted on the date of commlssmn of su1c1de As per evidence of aforesaid witnesses they were regularly demanded Scooter that amount to torture and cruelty to ‘the bride. y , ‘ 31. ’(Supra) that only torture and cruelty is not sufficient for conviction under Section 306 of the Indian Penal Code but are sufficient for conviction 'of the appellants under : Section 498—A of the Indian Penal Code. In the present As held, in case of Kishangiri Mangalgiri. Gos'wami x case the evidence adduced on behalf of the prosecution is sufficient to constitute the factum of torture and cruelty ' punishable under Section 498~A of the Indian Penal Code but'is not sufficient to prove the ingredients of Section 306 of the Indian Penal Code while convicting the appellants under Section 306 of the Indian Penal Code Court belovv has not ' considered the aforesaid facts and thereby committed an illegality. ' ' ‘For the foregoing reasons, criminal appeal is partly allowed. Conviction and sentence of the appellants under Section 306 of the Indian Penal Code is hereby set—aside. Conviction of the appellants under Section 498-A of the Indian Penal Code 85' under Section 4. of ' the Dowry Prohibition Act are hereby maintained. Considering the pendency of criminal appeal and trial instead of rigorous imprisonment for 3 years under Section 498-A; of the” Indian Penal Code, appellants are sentenced rigorous imprisonment for l year and fine of Rs. 3,000/- in default of payment of fine additional rigorous imprisonment for 6 months and Under SectiOn 4‘of the Dowry Prohibition Act appellants are sentenced rigorous imprisonment for 6 months. Appellants are in bail. They shall surrender themselves immediately before the ’First Additional essions Judge, Raigarh in Sessions trial No. 129/90 for serving remaining sentence imposed upon them. a) Sd/— 1} . T.P. Sharma Judgev S