i:-.;^K.^"r3S:^ ^&. ^SSS^ IN THE HIGH COURT OF CHHATISGARH AT BILASPUR CRIMINAL APPEAL N0. ^.\\ OF 2001 Vijay Shanker Son of Ganeshram Sahu, aged about 22 years, Resident of Sagarpur, P.S. Baikunthpur, Distt. Koriya. APPELLANT Versus The State of .Chhattisgarh RESPONDENT •'^. ..i ??.*-" ^ •^ ~0:^.- ' /f/ ,© /^^ /^ ^ CRIMINAL APPEAL UNDERSECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE. yK fl ; 1 , .>v y APPELLANT HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Crimipal Appeal No. 711 of 2001 Vijay Shanker VERSUS RESPONDENT State of Chhattisgarh. Shri Neeraj Mehta, counsel for appellant. Shri Vivek Sharma PL for respondent/State. CRIIVIINAL APPEAL UNDER.SECTION 374 (21 OF THE CODE OF CRIMINAL PROCEDURE. JUDGIVJENT (29.03.2010) This appeal is directed against the judgment dated 1.8.2001 passed by Additional Sessions Judge, Baikunthpur, in Sessions Trial No. 282/2000 convicting the accused/appellant for the offence punishable under Section 304-B IPC and sentencing him to undergo rigorous imprisonment for ten years. 2. Case of the prosecution in brief is that marriage of the accused/appellant was solemnized with deceased Laxmi Sahu on 11.3.2000 and on 29.7.2000 she was found dead on account of drowning into the well. Her dead body was recovered from the well on 30.7.2000. On 30.7.2000 itself merg intimation Ex. P-13 was given by Ganesh Ram father of the accused/appellant. On 6.8.2000 FIR was lodged by Gulab Chand (PW-1) - the brother of the deceased. After investigation, challan was filed against the accused/appellant, his elder brother Nande Lal and sister-in-law Sushila. 3. So as to hold the accused/appellant guilty, prosecution has examined 14.witnesses in support of its case, Statements of the accused persons were also recorded under section 313 ofthe Code of Criminal Procedure in whteh they denied the charges levelled against them and pleaded their innocence and false implication in the case. Thisapart, Vishwanath (DW-1) and Haricharan Sahu iillii;I5i, :'vi""s s ,iV/ /a?' '^;1'"' ..^y "i .-<?/ --2— (DW-2) have also been examined by the defence in support of its case. 4. After hearing the' parties the trial Court has acquitted the accused persons namely Nandelal and Sushila of the charge levelled against them -but convicted and sentenced the accused/appellant for the offence punishable under section 304-B IPC. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the accused/appellant submits that in the FIR there is no allegation against the accused/appellant and main allegations in it are only against sister-in-law of the deceased namely Sushila who has already been acquitted by the Court below. He further submits that the alleged demand of Rs. 1,00,000 was made for opening the typing institute which cannot be termed as dowry as defined under Section 2 of the Dowry Prohibition Act. He submits that at the time of recording of inquest report father of the deceased was also present but he has not made any allegation against the accused persons. He submits that after the incident, relatives of the deceased had demanded back the entire material given to the deceased at the time of marriage but as there was some delay on the part of accused persons in returning the same, the report was lodged against them. He submits that the prosecution has failed to prove whether the death was suicidal or accidental because the post mortem report does not support the case of the prosecution and moreover the contrary evidence is available on record that near the well lot of moss had deposited, possibility of accident cannot be ruled out. There is no evidence that soon before the death the deceased was subjected to cruelty or torture for dowry. He submits that the money allegedly demanded by the accused/appellant was deposited in the name of the deceased, it cannot be said to be dowry. 7. On the other hand counsel for the respondent/State supports the judgment and submits that as the death of the deceased has taken place within four months of her marriage with the El:ii.iiIiiliiildBn!-I@Biti Aq p|oi SBM eL|s ieqi eouepiAS jsq ui peieis SGLI poseeoep 9141 ^o E| -ui-jeisjs - (g-Md) 'eg nuey '(g-Md) ueujn^fey ^o teqi se tueujaieis jeiiiuis epBLu OS|B seq pQseeosp sqt ^o jeqiouj puBj6 |BUJSIELU (6-Md) !ES |OOL|d 'AjMOp p puELuep jo^ suosjed pasnooe 941 isuieBe 90i|0d 9L)i 01 epeai sem j3AaosieL|M 'iuieidLUoo ou ieyi paniaipe seq 3MS '(Ol-AAd) LueAi)S9i4pBy pueqsni) jaq ^o IBL|} se lusLueieis jeiiiuis tsoiuie speuu sey pssesosp SL]} jo JSLKOIU (8-Md) "eLun5)fey •6 •a}ni!isui 6uidAi 941 Bu]Uido jo^ OOO'OO' l 'sy pueiusp 01 pasn OS|E ASL|I pue Aj/nop sse| 6u!6uyq jo^ jsq uo lunei ssed o\ pesn sjeqLusiu AIILUGJ SIL| pue lueiiedde/pBsnooe 941 IBL)I 0114 peujjo^ui 8L)S 'esnoy siq 01 siueo jaiL|Bnep SIL) usqm leqi peieis seq 9|-| •BL)S>|UA uiey A|91UBU 9A!tB|8J Sll) Aq peUSAJSlUI SEM jeyeLU 'pueuuap 941 iiyin^ o} Aiiijqeui siq psMoys 9L| u8L|M pue 9|oAojoiouu pue /\i jno|0o 'OOO'OS •sy pspueuusp peii |B|9pueN pssnooe leyi souepiAg SIL) ui p3}e»s s^q (oi-Md) LueAqssqpey Aieaieu pasesoep eqi ^o jaqiej -aoiiod ^o luepueiuysdns SL|I 01 tuiBiduioo ueuuM e apeui eq 'Auouiejeo EjieBqsea uo ueAe iuiq 0} paujnisj iou 9J9M sa|3!pe sqi se }BL|t psieis jeqynj sey OH •e^ejSyseo ^o 90111 aqi IB uuiq Q} peujnisj eq p|noM s3|oiye sqi ||e IELI} uiiq psjnsse peq iue||9ddB/pesnooe aqi io jeqiei ')|oeq pepuetusp SBM, oBeujeiu ^o eujit syi ie usAiB leueieLU sji^ua usyM JQISIS siq ^o qiesp 341 j.o Aep pjiqi uo iei|} peieis seq SH 'sjaqLueiu AIILUB^ 314 pue lueiisdde/pesnooe sij} isuieBe uo!tB6e||e Aue apBai tou SBLI SL| 'iuesejd SBM sssuijM siqi 'issnbui ^o eujii aqi IB qBnoqi 'iueiisdde/pasnooe ;o sssuisnq at|t JQ^ pspueLuap 6uiaq ejaM 000'00'Z •sy pue Mei-ui-jaisis pue Mei-ui-jeqiojq jsq 'iueiisdde/pssnooe 9i\\ Aq Aiiamo 01 peioafqns sem ays ieqi uuiq p|oi peq peseeoep eqi leqi p9}B}S seii a|-| •lUB||adde/pssnooe eqi oi usM6 ejam •oi3 japui|Ao se6 'J9|ooo 'qejiiuie 'siisuein 'epAojoiOLU fBfEg 'Ai Jno|oo se qons sepiije lusioiyns QOO' 1.1 'sy jo qseo Luojj.yede 86eujeLU ^o auuii aqi }e }e\jj\ psieis seq e|-| '||aM 941 0}ui 6uiuMOJp ^o lunoooe uo paip 3145 OOOZ"Z'6Z uo Pue OOOZ'e'1.1. uo PSZIULUSJOS SEM }ue||9dde/p8snooB eqi qiim paseeoep eqi ^o 96eujeiu IEL|I souspiAa sjq ui PQ}B}S seq pasBSosp ai)i p J9qiojq 941 - (l-Md) lL|es PUBLIQ qe|no -9 •MB| i4ij aouepjoooe "! si Odl 9-frOS uoipes jspun uoipiAUoo SIL) 'iueiiedde/pesnooe —(/— the deceased that accused persons used to harass her for demand of dowry. In paragraph 3 of her evidence she has stated that 2 - 2 % months prior to the date of incident, the deceased had come to her. Surajlal (PW-3) is the witness of inquest report Ex. P-4. He has stated that at the time of inquest all the relatives of the deceased were present but they had not made any complaint in respect of demand of dowry. In pardgraph 8 of his deposition this witness has categorically stated that he used to go to the house of the accused/appellant where the deceased and the accused/appellant were living happily. He has also stated that in the house of the father of the accused/appellant there is a well and water of the same was used by the accused persons. He has stated that near the well, there is a platform which was slippery on account of deposit of moss. He has also stated that after marriage relatives of the deceased used to meet him but no complaint was made to him. Murtuza Khan (PW-4), the neighbour of the father of the deceased has stated that the deceased had informed him that she was subjected to cruelty in her matrimonial house. However, in paragraph 3 of his cross examination, this witness has stated that she had not informed the police that the deceased had told him of her being subjected to cruelty by the accused/appellant for demand of dowry and for the first time he has made this statement in the Court. Surendra Kumar Sharma (PW-5) has stated that the deceased had informed him that she was subjected to cruelty by the accused persons for bringing less dowry. In cross examination this witness has stated that he has disclosed to the police that the deceased had informed her about being subjected to cruelty by the accused persons but if the same has not been recorded by the police he cannof say anything. Dr. D.K. Chikanjuri (PW-6) who had conducted post mortem examination on the body of the deceased has stated that cause of death was asphyxia due to drowning. This witness has not given any opinion whether the death of the deceased was suicidal or homicidal. Ramjatan (PW-11) the maternal uncle of the deceased has stated that Rs. 11,000 and certain articles were given in marriage and that the deceased had informed him that she was subjected to cruelty by the accused persons for demand of dowry. In kil'UiiilliiltfijitfSiSIfillj --:^ '-^. i' ,9 —^~- paragraph No.2 of his cross examination this witness has stated that she had disclosed the factum of deceased being subjected to cruelty by the accused persoas but if the same is not recorded by the police, he cannot say anything. Balaji Rao (PW-13) has stated that Panchas had informed him that on account of some unknown reason the deceased had committed suicide. Joseph Ekka (PW-13) Sub Inspector, who had done part of the investigation, has supported the case of the prosecution. Vishwanath and Haricharan Sahu (DW-1 and DW-2 respectively) have stated that at the time of marriage no dowry was demanded by the accused persons and even after marriage the deceased was kept properly by her in-laws. 10. Minute examination ofthe entire evidence available on record does not go to show that soon before the death there was any demand of dowry and resultant ill treatment to the deceased at the hands of the accused/appellant. Main allegation, according to the FIR, is against Sushila Bai but she has already been acquitted by the Court below. Moreover, the demand of Rs. 1,00,000 made by the accused/appellant which was deposited in the name of the deceased was for opening the typing institute and the same, by no stretch of imagination, can be termed as dowry. Furthermore, the possibility of death of the deceased being an accidental one cannot be ruled out in view of the statement of Surajlal (PW-3) who has stated that near the well moss had deposited and the platform of the well had become slippery. From the record it appears that when the articles given at the time of marriage of the deceased were not returned by the accused persons, the report came to be lodged by the complainant. The most important thing in this case is that though the relatives of the deceased were very much present at the time of inquest, no complaint whatsoever regarding demand of dowry or harassment to the deceased by the accused persons was made by them. Thus entire case of the prosecution appears to be untrustworthy and in these circumstances benefit of doubt must go to the accused/appellant. 11. Accordingly, the appeal is allowed. Impugned judgment dated 1.8.2001 convicting and sentencing the accused/appellant as i.iiii:i^BH3aia s:.^ i'Si1^'' ~<0- mentioned above is hereby set aside. Appellant is acquitted of the charge levelled against him Appellant is on bail. His bail bonds stand discharged. , ——— Sd/- Pritinker Diwaker Judge