APPELLANTs (IN JAIL) y @ IN THE HIGH COURT OF HHATTISGARH AT BILASPUR R CR. APPEAL NO. 201 2007. S.B. ' ' Yavnesh Kumar Sahu i S/o. Bharosa Ram Sahu W Aged about — 39 years Occupation — Agriculturist Bharosa Ram Sahu S/o.— Bilwaram Sahu ' WEN Aged about — 64 years Occupation ~ Agricuiturist Basan Bai Sahu W/o. Bharosa Ram Aged about — 56 years z, Occupation- Agriculturist; M la/é'A/i/q/m ; pus’ x9mc/q , @xw/r gag; Sabita Bai r W/o. Nil Kumar Aged about— 25 years: Occupation— Agriculturist “AH? Residents of :Village— Sibadi, P.S.- Arjunda, Disti- Durg (C.G.) Qif {V RESPONDENT VERSUS State oF‘ChhattiSgarh. Through: — P.S. Arjunda, Distt.— Durg (C.G.) / v CRIMINAL APPEAL UNDER SECTION 374 (2) OF CRIMINAL PROCEDURE CODE 1973 i HIGH COURT‘OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 202 of 2007 APPELLANTS VERSUS RESPONDENT State of Chhattisgarh. Shri Malay Bhadurf counsel for the appellants. Shri Pravin Das Dy. GA for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF a CRIMINAL PROCEDURE. J U D G M E N T (03.01.2011) This appeal is difected against the judgment dated 27.2.2007 passed by the Additional Sessions Judge (FTC) Durgin Sessions Triai No. 203/2002 convicting the appellants under Sections 498 g each of them to undergo -’A and 304— B of the Indian Penal Code and sentencin rigorous imprisonment for ten years. 2. Case of the prosecution in brief is that marriage of the deceased namely Savita was solemnized with accused/appellant No.1 Yavnesh Kumar Sahu in the month of May 2000. Appellant No.2 Bharosa Ram '7‘: Sahu, appellant No.3 Basan Bai Sahu and a are the father-in-law, mother- respectively. 0n 20.7.2001 deceased s’a‘vita died b poison. Merg intimation Ex. P deceased and based 'on the written report made by Khorbahra Ram Sahu — the father of the deceased on 21.7.2001, FIR Ex. P-1 was registered on that day itself. In the said written report'it has been stated by the father of the deceased that his daughter was killed by the accused/appellants for not brining sufficient dowry. After investigation, ppellant No.4 Sabita Bai in-law and sis’ter—in-law of the deceased y consuming ~4 was given by the husband of the challan was filed by the prosecution on 25.10.2001 . 3. So as to hoid the accused/appellants guilty, prosecution has examined as many as 10 witnesses in support of its case. Statements Yavnesh Kumar Sahu and others. we it apt W ._.2_ of the accused/appellants were also recorded under section 313 of the COde of Criminal Procedure in which they denied the charges ieveiied against them and pleaded their innocence and false implication in the case. This apart, two witnesses namely Bharosha Ram (DW—t) and Bhav Singh Sahu (DW-2) were examined by the defence in support of its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused I appellants for the offences as mentioned above. Heard counsel for the parties and perused the material available on record including the judgment impugned. 5. 6. Counsel for the appellants submits that of course the death of the victim is an unfortunate one but for that only the appellants cannot be canvicted either under Section 498—A or 304-B IPC. He submits that as Khorbahra Ram Sahu (PW-1) and Parvati Sahu (PW-2) — the father and mother of the deceased have lost their daughter, they have made a false complaint against the accused/appellants alleging cruelty for demand of dowry. He submits that merely on the basis of bald allegations the accused/appellants cannot be convicted under section 498—A or 304-B IPC. He submits that it has not been stated by any of K/ the witnesses as to which of the accused/appellants has made any l r demand from the deceased or who subjected her to cruelty on any occasion. He submits that Fukeshwari (PW-3) — the so—called friend of the deceased appears to be a tutored witness and a reading of her a \ entire statement makes it clear that she has not stated the truth before the Court. He submits that even the provisions of Section 157 of the Code of Criminal Procedure have not been complied with by the prosecution as copy of the FIR was not forwarded to the concerned magistrate. He submits that in the absence of any charge against the accused/appellants in respect of Dowry Prohibition Act, it would not be safe for the Courts to convict them under sections 498—A and 304-B IPC. ln support of his contention, counsel for the appellants has .—30E_ placed reliance on the decisions of the Supreme Court in the‘matter of Amar Singh v. State of Rajsthan reported in 2010 AIR SCW 5141 and in the matter of Durga Prasad and another v. State of M.P. reported in 2010 AIR SCW 3673. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that a very specific allegation has been made against the accused/appellants and that Khorbahra Ram Sahu (PW-1), Parvati Sahu (PW-2) and Fukeshwari (PW-3) have categorically stated that deceased was subjected to cruelty by the accused/appellants. This apart, he submits that a very prompt report was lodged by the father of the deceased just next day after the incident and therefore it cannot be said that implication of the accused persons is an afterthought. He submits that though the witnesses may not have elaborated the instances of cruelty or demand of dowry but once the allegation to this effect is made, there is no occasion for this Court to disbelieve the same. He submits that soon before the death i.e. 12.7.2001 the deceased had made a complaint to her father Khorbahra Ram Sahu (PW-1) regarding ill-treatment by the accused/appellants which establishes the fact that soon before the death she was subjected to cruelty. He Submits that Fukeshwari (PW- 3) is an independent witness and there was no occasion for her to falsely implicate the accused/appellants. Lastly he submits that even if the accused/appellants have not been charged or prosecuted under the Dowry Prohibition Act, they are not entitled for any benefit. ln respect of not sending copy of the FIR to the concerned magistrate, he submits that it is notan illegality but a mere procedural irregularity and the same is not fatal to the case of the prosecution. He thus submits that here is a categorical allegation against all the accused/appellants and therefore the conviction and sentence awarded to them is strictly in accordance with law and does not call for any interference in appeal. 8. In his written report Ex. P—1 made on 21.7.2001 Khorbahra Ram Sahu (PW—1) has not made any allegation against accused/appellant No.2 Bharosa Ram Sahu — the father-in-law of the deceased. ln this x yé,_ report, it has been mentioned that after marriage accused/appellant No.1 Yavnesh Kumar Sahu, appellant No.3 Basan Bai Sahu and appellant No.4 Sabita Bai used to abuse and beat the deceased saying that she hailed from a poor family background and that her father had not given gold and silver in marriage. He has stated that on account of this act of the accused persons his daughter was very sad and on 12.7.2001 when he had gone to see her as she was carrying pregnancy of five months, his daughter had asked him to take her with him as she was apprehending that she would be killed. He has stated that thereafter he received an information from his relatives that his daughter committed suicide. in his Court statement this witness has stated that all the accused/appellants used to pass taunt to the deceased saying that gold and silver have not been given in marriag and that they used to beat her also. Thereafter, he has stated that accused/appellant No.1 and accused/appellant No.4 used to abuse the deceased. He has reiterated that on 12.7.2001 when he had gone to see his daughter, she had informed him that she was subjected to cruelty by the accused/appellants and requested him to take her to his house or else she would be killed. ln cross examination, this witness has categorically stated that he belonged to Sahu community in which there was no custom of dowry. He has stated that when the accused/appellants had come to his house for settlement of marriager " r i i there was no demand for dowry. According to him, even at the time of marriage no such demand was made by them. He has stated that it wars/(rt was within the knowledge of the accused/appellants that his financial condition was poor and they had agreed for the marriage just after looking at his daUghter i.e. the deceased. He has stated that on the 1' eve of Tija festival he and his 8-10 relatives had gone to bring his daughter i.e. the deceased, they were well treateg by the accused/appellants and they had sent the deceased saying that they could take her only for 8-1 0 days but the deceased stayed in his house for about a month and during this period she used to visit the neighbours and was feeling happy. Thereafter, this witness has stated l that when he had gone to take his daughter, he and other relatives .‘rr t e “’ gnv were informed by the deceased that she was being subjected to cruelty by the accused/appellants. Later, changing her version again he has 'stated that complaint of crueity was made by the deceased after reaching his house and his previous statement has been made by mistake. In paragraph No.4 he has stated that written report Ex. P-1 has not been written by him but it has been reduced to writing by someone else as was spoken by him and he had merely signed the same. This witness has further stated that accused/appellant No.2 Bharosa Ram Sahu is residing at Bhilai with his daughter as he was working in Bhilai Steel Plant. He has stated that at the time of inquest he had not made any allegation against the accused/appellants as no such questions have been put to him. He has stated that 13th day ceremony was performed by the accused/appellants and till then he l" had not lodged any report. 9. Parvati Sahu (PW—2) — mother of the deceased has stated almost the same thing as has been stated by her husband Khorbahra Ram Sahu (PW-1 ). She has stated that when on the eve of Tija festival the deceased had come to her house. she had complained of ill treatment by the accused/appellants. She has stated that at the time of ‘ village was subjected fair the deceased to cruelty had at the come hands to her of the house accused/appellants. and told her that This she witness also admits the fact that whenvthe marriage of her daughter was settled and even at the time of marriage no demand of dowry was made. ln cross examination, she has categorically stated that her daughter never used to inform anything to her husband and she used to inform the things to her only. She has stated that on three occasions her son-in-law i.e. appellant No.1 herein had come to her house along with the deceased. She has stated that in Sahu community if any such _‘ inCident takes place, matter is reported to the head of the community l and ultimately that family is boycotted. However, in the present case, i no such complaint was made to the head of the Sahu community. i Fukeshwari (PW—3) -— the so—caiied friend of the deceased has stated in her evidence‘that after marriage when the deceased had come to her village, she had informed her that her husband i.e. appellant No.1 i i i i i i J i i i i real i .17 .. a ,g- herein used to rebuke her saying that her parents had not given gold and silver in marriage. According to this witness, the mother-in-Iaw and father-in-iaw of the deceased also used to abuse her. This witness has stated that deceased had informed her that whenever her father-in-law used to come down to Bhilai, his behaviour towards her was not good. Sub Inspector -Mahesh Sinha (PW-4) who had received the written report from the father of the deceased and registered the FIR has categorically stated in paragraph No.6 that at the time of inquest, father of the deceased was present but had not made any complaint against the accused persons in respect of cruelty or demand of dowry. He has further stated that as there was no objection by the father of the deceased. ornaments worn by the deceased were given to accused/appellant No.1 herein who happened to be the husband of the deceased. He has stated that relatives of the deceased have made the allegation against the accused persons whereas the neighbours and family members have not made any such allegation against the accused/appellants. He has stated that during her pregnancy, the deceased was well—treated by the accused persons. Tamlal (PW-5) who had accompanied the accused/appellants when the deceased was taken to the hospital after consuming poison has not made any allegation against the accused/appellants. He has stated that deceased was taken to hospital so that her life could be saved. n- Kirtinarayan Sudhakar (PW-6) is the Patwari who had prepared the spot map Ex. P-7. Mehattar (PW-7) is the village kotwar and he has not l made any allegation against the accused/appellants. Dr. Renuka l Prasanno (PW—8) who had conducted the post mortem examination of the deceased has stated that she did not find any external injury on her body. Dy. S.P. Banshilal Kurre (PW-10) is the Investigating Officer and has supported the fact that he did the investigation in the case. 10. Bharosa Ram (DW-1) who is the appellant No.2 herein has l categorically stated that he was an employee of Bhilai Steel Plant and at the time of incident was residing with his wife Basan Bai (appellant ; No.3 here) and daughter Sabita (appellant No.4) at Bhilai itself. He has stated that in Sahu community to which he belongs, there is no custom ,7_ of dowry. He has stated that the deceased was Iiving with her husban eparately. Another defence witness Bhav Singh Sahu (DW-2) ha d s s atso stated that the accused/appellant No.2 Bharosa Ram was residing at Durg along with his wife and daughter and there was no custom of dowry in the Sahu community. 11. Thus considering the entire evidence adduced by th e prosecution it is clear that though some allegations have been made by Khorbahra Ram Sahu (PW—1), Parvati Sahu (PW-2) and Fukeshwari (PW—3) against the accused/appellants, if their complete statements are taken into consideration, it creates a doubt that the deceased died because of being subjected to cruelty by the accused/appellants. These witnesses have categorically admitted the fact that marriage of the deceased was solemnized with the accused/appellant No.1 herein only after the accused/appellants had seen her. It is also clear from the evidence of the witnesses that the accused persons were well aware about the poor financial condition of the parents of the deceased. Evidence also reflects that Khorbahara and his other family members were treated well when they had visited the house of the accused/appellants and the allegation of cruelty at the time of visit to the house of the accused/appellants by 8-10 relatives of the deceased has. not been established by the prosecution. Parvati Sahu (PW-2) ha . categorically stated that deceased used to inform the things to her only and not to her husband but on the contrary Khorbahara (PW-1) has ‘_ stated that deceased had informed him ab’out the iii treatment by the l accused persons. None of the witnesses has made any statement as g to which of the aCcused persons had beaten the deceased or made any demand from her. .The witnesses have also failed to give any specific date on which the cruelty meted out to her by the accused/appellants. Though Khorbahra (PW—1) has stated that about 8 days back from the date of incident he had visited the house of the deceased where he was informed about the cruelty but the same cannot be fully relied upon by this Court and it cannot be said that soon before the death she was subjected to cruelty by the accused/appellants. Essential ingredients for dowry death are cruelty s r, _ ,g_ or harassment for or in connection with dowry and mere demand of dowry would not be an offence under Sections 304—B and 498-A IPC. While deaiing with an identicai question in the matter of Amar Singh (supra) it has been held by the Apex Court as under: ”23. ...Thus, there was evidence in the case of Amar Singh about his exact conduct which caused harassment to the deceased but there was no such evidence in the case of Jagdish and Gordhani. A prosecution Witness who merely used the word “harassed” or “tortured” and does not describe the exact conduct of the accused which, according to him, amounted to harassment or torture may not be believed by the Court in cases under Sections 498A and 304B IPC. For this reason, the High Court has taken a view that the charges against Jagdish and Godhani have not been established beyond reasonable doubt and that their case is distinguishable from that of Amar Singh and that Jagdish and Gordhani appear to have been implicated because they were members ofAmar Singh’s family. 24. In Kans Raj v. State of Punjab and others [(2000) 5 SCC 207] : (AIR 2000 SC 2324 .' 2000 AIR SCW 2093), this Court cautioned that in cases where accusations of dowry deaths are made, the overt acts attributed to persons other than the husband are required to be proved beyond reasonable doubt and by mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. In the aforesaid case, this Court further observed that a tendency has developed for roping in all relations of the in-laws of the deceased Wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. 12. Further, admittedly copy of the FIR was not sent to the concerned Magistrate and no such document has been produced by the prosecution and this fact has been admitted by the investigating officer (PW—10). This also creates a doubt in the case of th prosecution. More so, statement of Fukeshwari (PW-3) appears to be an improved one and therefore it would not be safe for this Court to make it a basis to convict the accused/appellants. No independent witness has been examined by the prosecution in support of its case. The Court‘below has failed to consider the fact that accused/appellants 2 to 4 —in—laws of the deceased were residing separately at Durg as e -9_ accused/appellant No.2 was working in the Bhilai Steel Plant. This fact has been admitted by Khorbahara (PW-1) and aiso by two defence witnesses. 13. Having thus dealt with the facts and circumstances of the case as above, this Court is of the considered opinion that the prosecution has not brought on record any clinching materiai to substantiate the allegations made against the appellants. Evidence of the parents and friend of the deceased being self contradictory in material particulars is not sufficient to uphold the conviction slapped by the Court below and that being so benefit of doubt should definitely go to the accused persons. 14. Accordingly, the appeal is allowed. Judgment impugned is set side. Appellants stand acquitted of all the Icharges levelled against them. Appellants are reported to be on bail. Their Bail bonds stand discharged. as Sdl- » r 7 _ V Pritinker Diwaker Judge a l "