HIGH COURT OF CHHATTISGAM'I. BILASPUP Criminal Appeai No.259l 2005 Laxmi Yadav, s/o Shri Latel Yadav, agsd about 30 years, R/o village Ghonghadihi, Police Station Kota, District Bilaspur (CG) APPELLANT (in Jail) VERSUS RESPGNDENT The Stat€ of Chhattisgarh Through 'Ths Collector, Bilaspur, Police Station Kota, District Bilaspur (Chhattisgarh) CRIMINAL APPEAL U/S 3‘74- OF THE CODE OF CRIMINAL PROCUDERE Appearance: Shri RS. Sahu, cotmsel for thc appsllant. Shri 8.14:. Agrawal, Panol Lawyer for the State. Divigiogi Eench:- Hon’ble Shri T.P. Sharma £5 Hon’ble Shri R.L.Jhanwar,JJ ORAL JUDGMENT (0403.201 1) Per T.P.Sharma, J. Challenge in this appeal is to the judgment of conviction axld order of sentence dated 15.03.2005, passed by the 5th Additional Sessions Judge Bilaspur (CG) in S.T.No.182/2004, whereby and whereunder the learned Additional Sessions Judge after holding the appellant guilty for commission of dowry death of his Wifee Kun’d Bai, convicted the appellant under Section 304— B of the IPC and sentenced for life impxisonment. 2. The conviction is impugned on the ground that without there being any iota of evidence sufficient for conviction ofthe appellant, the leaxned Additional Sessions Judge has convicted and W, W - Vnw_— semsncal the appellant a aforesaid mention6d and thereby committed illegality. 3. e per case of prosecution, Kunti Bai (snce deceased) unfortunate deceased, Wife of th appellant w residing wh The appellalxf in his ouse and on 20.3.2004, she consumed poison and committed suicide on account of tortuie. nd cruelty committed by the apellant in connection with dmand of dowry. Merg s recorde and after soning Witnesses, inquest over the dead body of the deceased was prepared vide EXP/7. Dead body was sent for autopsy to C.H.C‘ Rota, vide EXP/2, where autopy was conducted by Dr. Nita Sai along with the team of doctors vide EX.P/ l and found that cause of death as asphyxia, No deiinite opinion was given relating to death, but it was a case of suspected oining. Insecticide bottle was seized vide EX. P pso /3 from the spot. Viscera as preserved and seized vide EX.P[5; the same was sent to F.S.L. for examination. Finally, FIR was lodged vide Ex. P/ 16. Satements of the witnesses were recorded under Section 161 of the Code of Crnal Procedure, 1973 (in short the Code). 4. After completion of investigation, charge sheet was filed before the Additiol Chief udicial Magistre Bilaspur, who in urn, committed the case to the Court of Sess'mns, Bilasur, from where the arned Additional Sessions Judge received the case on transfer for trial. i i 5. In order to prove the guilt of the accused/appellant, prosecution examined as many as 13 witnesses. Accused was examined under Section 313 of the Code, in which, he denied the circumstances appean'ng against him, innocence and false implication in crime in question was claimed. s A i e as it h a p e wa d umm s ki w w t imi na J at t p le 6. After affording opportunity of hearing to the parties, the' laalned Additional Sessions Judge convicted and sentenced the appellant as aforesaid mentioned. 7. We have heard Shri RS. Sahu, learned counsel for the appellant and Shn' SK. Agrawal, learned Panel, Lawyer for the State, perused the judgment impugned and record of the trial Couxt. 8. Leamed counsel for The appellant vehemently argued that Kunti Bai was Wife of the appellant and she was residing with the appellant. She died within 7 years of her marriage in abnormal circumstances. She consumed poison and committed suicide. The appellant has not committed any torture or cruelty upon her and has never demanded any dowry. He further submits that present appellant is a labourer and the deceased was also from a labourer family. Her mother PW—4- Bhaga Bai is still working as a labourer. There was no occasion for demanding or giving any dowry. Learned counsel argued that casual and bald statement of PW-4 Bhaga Bai relating to demand of Rs.5- 10 thousand is not sufficient to prove that the appellant has demanded dowry soon before the death of the deceased, therefore, conviction and sentence of the appellant under Section 304-8 of the IPC is not sustainable under the law. 9. On the other hand, learned counsel for the State opposed these arguments and submitted that prosecution has proved its case beyond all shadow of doubts and court below has rightly convicted and sentenced the appellant as aforesaid mentioned. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11. In rim present case, prosecution has not produced and proved the F.S.L. report relating to suspected poisoning, but the evidence of PW—l Dr. Nikhita Sai, seizure of suspected poisoning from the spot and evidence of Bhaga Bai (PW—4), Jagriti (PW-5), .Suniti (PW-6), FIR Ex. P/ 16 and the evidence of other witnesses revealed that the deceased has consumed poison arid has died as a result of such poisoning. She died in abnormal circumstances and has committed suicide. 12. As regaids the question of commission of torture and cruelty and demand of dowry soon before the death of the deceased by the appellant is concerned, evidence of Bhaga Bai (PW—4) and Jagn‘ti (PW-5) mother and sister of the deceased, revealed that appellant has committed torture and cruelty upon the deceased Evidence of PW—4 Bhaga Bai in para 4 revealed that the appellant used to assault her daughter and used to demand Rs.5- 10 thousand for construction of house. Evidence of these witnesses if believed then it may be inferred that the appellant has committed torture and cruelty upon the deceased and demanded money for construction of the house but, that cannot be termed as demand of dowry. This evidence revealed that the appellant has committed torture and cruelty and as a result of such torture and cruelty, deceased has committed suicide. In order to convict the appellant under Section 304 —B of the IPC, prosecution is required to pmve the factum of demand of dowry soon before the death of the deceased. Prosecution has not adduced any evidence relating to the aforesaid facts. ln absence 'of such evidence; conviction of the appellant under Section 304—B of the IPC is not sustainable under the law. While convicting and sentencing the appellant under Section 304—B of the IPC, Court below has not considered the insuhiciency of evidence relating to demand of dowry that too soon before the death of Kunti Bai and thereby committed illegality. 13 For the foregoing reasons, the appeal partly allowed. Conviction and sentence of the apellant under Section 304~B o the IFC is altered into Section 06 of the C and he is sentenced for implisonment for 6 years and 10 months i.e. or the period already undergone from 03.04.2004 fill today; He beireleased foxthwith, if not required in ay other case. Sdl— R.L. Jhanwar Judge l t : . is p f 3 IP f ' n {i‘ " " 4 e no? he ,7;