JN THE HIOH COURT OP CHHATTISGARH AT BIIASPUR CriminalAppeal No. ^79/2003 APPELLANTS 1 < Matibodli S/ o Late Blialurom Versna, aged about 26 years. 2. Najad Kumar S/ o Late Bhaluram Verma, aged about 19 years. 3. Dooj Bai @ Rajeshwari, v \-^"":'^n^ w/ o Santram Verma. - ^^ /-^"r ^- 'r'^^'". ' • V,;ocatat 4. Saiitram S/o Late Bhaliiram Verma, Aged aboiit 29 yeai^. 5. Utiieiiclra Bai Wf^Late Bhaluram Veriiia» ^7 Aged aboiit 46 years. All R/o Village- Checher, P.S. Kaadol, District- Raipur (C.G,). -Ver^ua - State of Chhatti^garh Through P.S. Kasdol, District-Raipur (C.G.) RESPONDENT CRIMINAL APPEAL UNDER SECTION 374(2^ OF THE CR.P.C. ^ HI6H COURT OF CHHATTIS6ARH AT BIb^SPUR Slnqte Bench: Hon'ble 5hrl Justlce DMIp Raosaheb Deshmukh Criminal ApDeal No. 1277/2003 Manbodh A others Vs. State of Chhatt-isgarh Post for Orders Sd/- Dilip Raosaheb Deshmukh Judge •V r ^. HI6H COURT OF CHHATTISeARH AT BILASPUR Sin9le Bench: Hon'ble Shri Justice Dilip Raosaheb Deshmukh Crlminal Aoowd No. 1277/2003 Manbodh & others Vs. State of Chhattisgarh Shri Pradiant Jaiswal, Sr. Advocate with Shri Ali A^ar, Counsel for the oppetlants. Shri UXS.Chandel. P.L. for the State JU&^MENT (Delivered on ^o^ckiy of March 2006) This appeal is directed against the judgment doted 06.09.2003 delivered by Shri P.K.Dave, jeamed 1st Additional Sessions Judge, Baloda Bazar in sessions case No.470/2002 ^ whereby the appellomts were convicted under Section 498-A and 304-B of I.P.C. and sentenced to undergo R.I. for two years and a fine of Rs.1,000/- each ifnder Section 498-A and to undergo R.I. for 10 years each under Section 304-B I.P.C. ond in default of payment of fine imposed under Sectjon 498-A to undergo additionol R.I. for six months. 2. It is not disputed that the deceased Phool Bai was married to the appellant Manbodh two years prior to her death. Appellant No.2 Nand Kumar cind appellant No.4-Soint Rom are the brothers of the appellant No.l. Appellant No.S-Duj Bai isjwjfe_oj r -.-..__.^———^ appellont No.4 and appelloint No.5 is the mother of appellont No.l. The matemal home of the deceased is in village Deokirori. The appellonts live in village Chhechar. 3. Briefly stated the prosecution story as revealed by the case diary statements of Brajesh P.W.2, Horilal P.W.l, Bodhram P.W.8 and Rajkumari P.W.9 being the brothers, father and sister-in-law respectjvely of the deceased is that soon after the marriage the appellants used to harass and beat Phool Bai on account of demand for dowry of Rs.30,000/-. It was not stated as to for what purpose the dowry amount was demanded, when it was demonded and in what manner Phool Bai was being harassed. It atso appears that when Phool Bai became pregnant, Manbodh left her at her maternal home since he was going to Jammu for eaming a livelihood. From the stort-ements recorded under Section 161 Cr.P.C. of the above mentioned witnesses it is not borne out that the appellant No.l-Moinbodh ever made a specific demond for dowry. The only fact that emerges is that when Ph^ol Bai became pregnant and Monbodh left her at her maternal home, she told her father Horilal P.W.l, brother Brajesh P.W.2 and Bodhram P.W.8 and sister-jn-law Rqjkumari P.W.9 that Manbodh was pressurizing her for brining Rs.30,000/- for setting up a Kirana shop ond that the other appellants were also asking her to bring money from her matemal home. On return of Manbodh to village Deokirari, the above mentioned witnesses advised him that unless he ossures of proper behaviour with Phool Bai, they would not send Phool Bai with him. Phool Bai was also not willing to go with Manbodh and was crying. However, on —^•^ w being assured of proper treatment, she jeft with the appellant- Manbodh for Chhechar. 4. It is alleged by the prosecution that within three months thereafter on 7.7.2002, Phool Bai consumed an insecticide Endosulphas. She was shifted to the ©ovemmenthospital in Kasdol where she expired. Santosh Verma P.W.7, brother of the appellant immediately gave merg intimation Ex.P.7 at P.S. Shahdol stoting that on 7.7.2002 Phool Bai was alone in the house for cooking food while dl the other members of the founily had gone to work in the fjeld. When they retumed ort 2.30 P.M. they saw thot Phool Bai was lying inside the house and froth was coming out of her mouth. On being asked by the appellant- Monbodh, she told that she had consumed Endosulphas but did not assign any reason therefor. She was immediately shifted to the Communjty Health Center, Kasdol but died. 5. Post-mortem was conducted by t>r. N. Bajpai P.W.13 on 8.7.2002 who found bluish discolouration of skin on whoje of neck ond right side of foce (cheek). Undemeath the skin the muscles of neck showed congestion and clotted blood. In front of trachea at the leyel of thyroid cart-ilage, there was congestion. Viscera was preserved, packed and sealed for examination by the F.S.L. It was opined vide Ex.P-8-A that mode of death of Phool Bai was due to asphyxia. Cause of death could not be oscerl-ained. Duration of death was within 24 hours. Upon exomination of Viscera and one tin box of insecticide ^F l^ Endosulphas seized on 11-07-2002 from the place of occurrence vide Ex.p.4., the Forensic Science Laborary vide Ex.P.21 opined that they contained Endosulphas (orgono chloro insecticide). After completion of investigation, the appellants herein were prosecuted ahd charged under Sections 498-A, 304-B of the I.P.C. and in the alternative under Section 3061.P.C. The appellonts abjured the guilt. The prosecutjon examined as mony as 13 witnesses. Relying upon the evidence led by the prosecution, the triaj Judge convicted and sentenced the appetlonts herein 304-B and 498-A I.P.C. as aforesaid jn para-1 (Supra). 5. Shri Prashant Jaiswal, leamed Sr. Advocate for the appellants herein has assaijed the conviction of the appellcmts under Section 498-A and 304-B I.P.C. on the ground that the evidence led by the prosecution does not establish the guilt of the appellants for the aforesaid offences. It wos contended that no report- either prjor or after the death of the prosecutrix was lodged by Horilal P.W.l alleging harassment and demand of dowry by the appellants herein. The evidence led by the prosecution did not specifically show as to how much dowry was demanded and when. The testimony of Horilal in para 18 was referred to contend that the deceased lived peacefully with the appellant No.l without there ever being any dispute. Brajesh P.W.2 also did not make ony allegations against the appellant No.l. Paro-7 of the testimony of Rajkumari P.W.9 ond paras- 13, 18 A 19 of the testimony of Bodhram P.W.8 were also referred to show that there was no demand for dowry. It was also M 1 S^ife fj/il^^3'^i:^.'?^?i^^l^s';^T;fi:^%?i^ S3- contend^ ^hat tKe ^case^i^ r^cordeda9lc(t&ason2|^2(X32fln^ allegationppai^Feportby^ account of derrwnd for <^ tl^testJtiKmyof&p^B^ wasiitl^ Bai had coi^rned |in|o|sul|||i|l|^ In sum and subfftxince, the 1^^ conterKledth^lthewjdei^ledby^ the r^jate proof 1^ bring hom®the gui^ under Section<^8-A dnd304-BI.P.C. 6. On the pfher h^ supporting the^pugned judgm^ Horildl P.W.l, Brqjesh ^ ^l^?;:''-.^c/':.'t^^ P.W^ clecrlyproved thafr Phool Bai^ the appellants herejn on G^Qurri'^^^^^^^ dowry. The pr^mpfion under S^ Actwasnotrebuttedbyth^^ the outopsy report of Dr. N.Baj^ violenceWtheljht'oat'pfPhool^ to dCoyrt ques1|ton, this wjtn^Bhad necTtKethyrQidjwer^sugg^iv&^rf 7. l^ing h®^n^riyoil c^ recor^. Gr,^. B|y^ PhoolBaiEx.P-Z^hastesti^iei^Nrt-Nis^^ been ppeservedlforchemjcaljsartaty^ lu®l^llf©^%Iti%NIiffil^l;S^ts'^ ^% Patel PW-12 has proved that on 11-07-2002, a tin box containing insecticide Endosulphas had been seized from the place of occurrence vide Ex.P-7. The report- of exoimination of viscera by the Forensic Science Labororoty Ex.P-21 proves beyond doubt that death of Phool Bai was on account of consumption of Endosulphas (organochloro jnsecticide). It is thus established that death of Phool Bai was on account of consumption of poisonous substance and otherwise than under normal circumstance. It is ajso undisputed that deoth of Phool Bai had occurred within 7 years of marriage with appellont No.l Manbodh. The only point which requires consideration is whether soon before her death Phool Bai was subjected to cruelty or harossment by the appetlants on account of demond for dowry. 8. Horil PW-1 has admitted in para-8 that he djd not lodge any report ot the Police Station regarding hoirassment of Phool Bai by the appellants on account of demand for dowry. He has also admitted in para-9 that Phool Bai used to write letters but never wrote any such letter to him thot she was being harossed by the appellants on account of demand for dowry. He atso admitted in para-10 that he did not disclose ony such facts to the elder persons of the Village or to the Sarpanch or Pcnchas of Vitlage-Deokirari. His testimony ajso shows thot during the stage of pregnancy Manbodh had jeft Phool Bai ot her matemal house for proper core saying thot he was going to Jammu for earning his livelihood which shows the concem of Manbodh for Phool Bai. He also admitted that Manbodh had left Phool Bai at ^8 his house in a stage of pregnancy so as to maintain good relations between them. 9. It nowhere emerges in the testimony of Horil PW-1, Brajesh PW-2, Bodhram PW-8, Rajkumari PW-9 who were the close relatives of the deceased that at any time after the morriage of Phool Bai with Manbodh or even after the deoth of Phool Bai, did they lodge ony reporl' with the police regarding any harassment of Phool Bai by the appellants on account of demand for dowry. Horil PW-1 has in para-18 clearly stated thot AAanbodh and Phool Bai lived peacefully and there was never any dispute between them. Brajesh PW-2 has also stated that the appellant Mcmbodh had left Phool Bai who was pregnant, at her matemal house when he left for Jommu to earn his livelihood. Bodhram PW-8 has also admitted in para-13 thot Manbodh was even willing to live with Phool Bai at Village-DeoDeokirori. This shows that the appellant Manbodh had a deep concem for the wejlbeing of Phool Bai. 10. Santosh, PW-7 brother of the appellont Manbodh has admitted that he had lodged merg intimation vide Ex.P-7 in Police Station-Kasdol on 07-07-2002 that Phool Baj while being alone in the house had consumed Endosulphas pojson. He has also admitted that Phool Bai died in the Govt. Hospital at Kasdol. It is ajso pert-inent to note that Ponchnama on the dead body of Phool Bai was prepared vide Ex.P-2 on 07-07-2002 itself at 05.30 P.AA. by Naib Tehsildar (Executive Magistrate) Shri A.S.Rana PW-10. It clearly shows that Dashoda Bai, mother of the deceased Phool Bai was present when the inquest memo vide Ex.P-2 was prepared. This inquest memo does not disclose ony suspicion of suicide having been committed by Phool Bai on ciccount of demand for dowry by the appellants. If Dashoda Bai A Horil felt that death of Phool Bai had taken place under suspicjous circumstcimces on account of non fulfillment of a demand for dowry for which she was bein9 harassed^ there is no doubt that both Horil <& Dashoda Bai would have raised lot of hue and cry about thjs motter at the time of inquest and would have immedjately lodged a reporl- with the Police whe^ Was already investigating the death of Phoot Bai. The testimony of Sub Inspector Lambodoir Patel PW-12 in para-6 shows that statements under Section-161 of Cr.P.C. of Dashoda Bai omd Horil had been recorded on 08-07-2002 itself. The record shows that the prosecution did not produce these statements before the trial Court along with the documents under Section-173 of Cr.P.C. It was only after a direction given by the learned Additional Sessions Judge on 23-01-2003 tHat the stotements of Dashoda Bai, Horil Verma, Bodhram, Rajkumari and Brajesh were produced in the Court. On going through the case diary statements of Dashoda and Horil Verma recorded by Sub Inspector Lomboder Patel PW-12 on 08-07-2002, it appears that these witnesses did not disclose in their statements that omy demond of Rs.30,000/- was made by the appellants os dowry. Exceptin9 a bald statement of harassment for not bringing sufficient dowry, no other specific acts were attnbuted to the appellants in the statements under Section-161 of Cr.P.C. 10 recorded on 08-07-2002. The suppression of these statements by the prosecution and non-production thereof till being ordered by the Court, creates a serjous dent in the prosecution story. Not only this, Dashoda Bai who was present during the jnquest on 07-07-2002 ond had given statements under Section-161 of Cr.P.C. on 08-07-2002 was not examined by the prosecution, though cited as a witness. She was given up on 03-04-2002 by the prosecution. Dashoda Bai being the mother of the deceased, was the true repository of the information if any given by Phool Bai about any harassment by the appellants herein on account of demand for dowry. An adverse inference is drawn against the prosecution for her non-examination. 11. Rajkumari PW-9, the Sister-in-law of Phool Bai has admitted in para-7 that she did not disclose to ony neighbour in village that Phool Bai was being harassed by her in-laws on account of demand for dowry. Horil PW-1 has admitted in para- 15 that since the appellant equaled his status, he had got Phool Bai married to Manbodh. He also admitted that after the morriage of Phooj Bai, he went several times to Village-Chhechar and Phool Bai had also visited Village-beoKerrari mony times. Not De^ a single neighbour residing in Village-Chhechar or Village^Kerrari has been examined to show that Phool Bai had disclosed that the appellants were harassing her on account of demand for dowry. Suspicion of death on account of harassment upon a demand for dowry does not find place in inquest Ex.P-2. 11 ^ 12. Sub Inspector Rajesh John PW-11 has admitted in para-6 that he had recorded the case dicry stottements of Horil PW-1, Rajkuman PW-9, Dashoda Bai omd Bodhram PW-8 on 28-09-2002 i.e. almost 2 months and 21 days ofter the occurrence. Till then, no material was available about cmy harassment of Phool Bai by the appellants on account of any demand for dowry. The appellonts were also arrested the same da/ i.e. on 28-09-2002. The case diary statement of Brajesh PW-2 was recorded on 06-10-2002 as admitted by Sub Inspector Rajesh John PW-11. In the abovementioned circumstances, it coinnot be ruled out that the story of demond of Rs.30,000/- by the appellants was an afterthought being concocted after considerable delay. 13. Horij PW-1, Brajesh PW-2 and Bodhram PW-8 have admitted that they were present in Village-Deokirari during inquest and the last rites of Phool Bai. Bearing the natural humon conduct in mind if Phool Bai had been harassed on account of not brin9in9 sufficient dowry or had died under suspicious circumstances, these persons and bashoda Bai who were the nearest relatives would have immediately lodged a report to the Police to that effect. The testimony of Rajkumari PW-9 furt-her shows that AAanbodh had gone to Jammu for a period of 5 to 6 months to earn a livelihood and had left Phool Bai in a stage of pregnosncy at her mQternal house. It also appears that Manbodh was asking for financial assistance of Rs.30,000/- for starting some business. This by no stretch of imagination can be constituted to be a demand for dowry. x^ 12 •<^ 14. Santosh PW-7 has stated that Phool Bai was suffering from stomach ache, headache and cough and had become very weak after pregnancy. In para-15 he has stated that Phool Bd was of good temperoment and babjts and never quarreled with the appellants. In cross-examination he has further stated that Phool Bai and Manbodh were living very peacefully though Phool Bai was insistjng upon Manbodh to live with her at village- Deokirari. The appellants have examined the village Doctor Bhikam Prasad DW-3 ond two witnesses Rajendra Kumor DW-1 A Rahi Bai DW-2. Rajendra Kumar DW-1 is a resident of Village- Deokirori i.e the matemal home of Phool Bai and had testified that from childhood Phool Bai was suffering from stomach ache and headache cmd sometimes used to become unconscious on that account. He has furt-her stated that Phooj Bai had told him that sometimes headache used to be so severe that- it appeared that she would not survive. He ajso took Phool Bai for treatment at the instance of her father. Rahi Bai DW-2, a resident of Village- Chhechar has also stated that Phool Bai used to tell her that due to persjstent stomach ache and headache she felt as if it would be better to die. This wjtness has also testified that Phool Bai was living peacefully with the appellants and also used to visit the other villagers in the village. Bhikham Prasad DW-3, Village Doctor has testified thot he had treated Phool Bai for stomach ache and headache many times and fejt that Phool Bai must have committed suicide on account of the above ailments. He witnessed the inquest Ex.P-2 and was thus not a stranger. The testimony of the witnesses mentioned above cannot be brushed^ 13 aside as a mere otfterl'hought since it appears plausible that on account of persisting serious stomach ache omd headache, Phool Bai had abruptly ended her life by consuming poison. 14. From the foregoing discussion, following points emerge:- (A) Phool Bai committed suicide on 07-07-2002 at Village- Chhechar within 7 years of her marriage to appellant No.l by consuming Endosulphas (orgonochloro insecticide). (B) Horil PW-1 and Dashoda Bai, parents of Phool Bai though present at the inquest, did not disclose to the Police that Phool Bai was being harassed by the <- . ^ appellants on account of a demand for dowry^^* 5tf/cc0/-. (C) Horil PW-1 and Dashoda Bai in their statements under Section-161 of Cr.P.C. djd not disclose that a demand of Rs.30,000/- as dowry was made by the appellants or anyone of them. (D) The case diary statements of Horil PW-1 and Dashoda Bai recorded on 08-07-2002 by Sub Inspector Lambodor Patel PW-12 were suppressed by the prosecution ond not filed along with documents under Section-173 of Cr.P.C. (E) Dashoda Bai, a material witness being mother of the prosecutrix though cited by the prosecution was given up on 03-04-2002 by the prosecution. (F) Horil PW-1 admjtted that the appellant No.l Manbodh and Phool Bail used to jive peacefully. The evidence led m 14 by the prosecution shows that the appellant No. 1 Manbodh had a deep concern for the wellbeing of Phool Bai. No report- of any harassment of Phool Bai on account of demand for dowry by the appellants was lodged by Horil PW-1 either before or after the death of Phool Bai. (^) Phool Bai was suffering from severe stomach ache and headache. The defence that she committed suicide by consuming poison on that account appears plausible. (H) In view of the evidence led by the defence and the testimony of Santosh PW-7, the presumption under Section-113(b) of the Evidence Act does not arise against the appellants. (I) In the abovementioned circumstances, it appears doubtful that Phooj Bai had been subjected by the appellants to cruelty or harassment for, or on account with, any demand for dowry. (J) The recording of case diary statements orfter considerable delay on 28-09-2002 i.e. more than two months and 21 days and the orrest of the appellants on the same day does not rule out the possibility that the allegation of demond of Rs.30,000/- as dowry by the appellonts is an afterthought. 15. Having thus considered the evidence led by the prosecution in its entirety and in view of the facts emergin9 therefrom as narrated above, I am of the considered opinion •^ m 15 thot the prosecution has failed to establish the guilt of the appellants under Section-304(B) <& Section-498-A of IPC beyond the shadow of reasonable doubt. The benefit of doubt that the story of harassment on occount of non fulfillment of demand for dowry of Rs.30,000/- is an afterthought goes to the appellants. 16. In the result, the appeal succeeds. The conviction of the appellants under Section-304(B) A Section-498-A of IPC cmd the sentences awarded thereunder we set aside. The appellants ore acquitted after giving them the benefit of doubt and shall be set at jjberty fort'hwith, if not required in any other case. Fine, if paid, shall be refunded to the appellants. r Sd/- DUip Raosaheb Deshmukh Judge