HIGH COURTOF CHHATTISGARH AT BILASPUR Criminal lAppeal No.826 of 2003 APPELLANT: (InJail) RESPONDENT: '<^' ^ Rajendra Sharma Versus State of Chhattisgarh JUDGMENT FOR CONSIDERATION HON»BLE SHRI R.N. CHANDRAKAR. J 3 ^- Sd/'- * JUDGE ^-6-2010 Sd/- R.N.Chandrakar Judge .^ POST FOR JUDGMENT ON ?,& JUNE. 2010 Sd/- Dhirendra Mishra Judge '\ ^ HIGH COURT OF CHHAtTISGARH AT BILASPUR Criminal APPELLANT: (InJail) RESPONDENT: ^ }.'3' 7- ...-^ y Present: ApDeal No.826 of 2003 Rajendra Sharma, S/o Bachchan Sharma, Aged about 34 years, R/o Banbaghera, P.S. Sbmni, District Rajnandgaon (CG) Versus State of Chhattisgarh, Through P.S. Somni, District Rajnandgaon (CG) Shri H.S. Ahluwalia, counsel for the appellant. Shri Ashish Shukla, Govt. Advocate for the State/respondent. Division Bench: Hon'ble Shri Dhirendra Mishra & Hon»bleShri R.N. Chandrakar. JJ. JlUDGM.ENT (Delivered on_2Q/^June, 2010) The followingjudgment ofthe Court was delivered by Dhirendra Mishra, J. 1. This criminal appeal is clirected against the judgment of conviction and order of sentence idated 7th December, 2002 passed in S.T. No.49/2002 whereby j learned Additional Sessions Judge, Rajnandgaon after holding the appellant guilty under Section 304-B of the IPC for causing dowry death of his wife namely, Annapurna Bai, has convicted and sentenced him to undergo imprisonment for life. 1 I ~ . ••.• • • ." • '. . • • .' • , •' — •• ' . 2. The prosecution case is that the deceased was married with the appellant 3 years prior to the date of the incident. At the time of marriage, Rs.5,000/-, some ornaments and daily use articles were given.by her parents as dowry. The appellant was accustomed of consuming alcohol and used to spend his entire earnings on this vice and used to ask the dec^ased to bring money from her parents. He ' <'• A occasions, however, he also demanded and obtained money from his father-in-law on various did not give the deceased any money for household expenditure aund even did not pay rent and used to haraSs and quarrel with her after consuming liquor for dowry. On 14-2- 2002, at about 4 pm the ideceased sustained 80% burn injuries. 3. After the deceased sustained burn injuries, she was taken to the Government Hospital. She was examined by Dr. Neeraj Shende (PW- 18) and her medico legal injury reporf is E^x.-P/lS. The appellant .l."'.. ;: "" • ' •;.'. '~ . '' ' ' . • •- . ' ': .••• also sustained burn mjuries and he was also referred to the Governnient Hospital and his examination report is E^x.-P/19. After the death of the deceasedat 10.15 pm, on the basis ofmformation received from the hospital, merg intimation was registered vide E^x.- P/23 at Police Station Durg, thereafter merg was again registered at Police Station Somni on 3-3-2002 vide Ex.-P/16. 4. After conducting inquest over fhe person of the deceased vide Ex.- P/3, dead body was sent for autopsy to Government Hospital, Durg, where Dr. V.R. Meshram (PW-16) conducted postmortem and gave his report vide Ex.-P/17| The offence was registered on 5-3-2002 on the report of Manish | Sharma, City Superintendent of Police, Rajnandgaon. | 5. Affcer conducting usual mvestigation, charge sheef was filed in the Court of Chief Judicial Magistrate, Rajnandgaon, who in turn, ';!.-'-:- :'•.-. ^ '. ' -:". '•••,.- .'": •.'•.'.: .'.•'•- committed the case to fhe Court of Sessions Judge and the same was received on transfer for trial by learned Additional Sessions Judge. 6. Learned Additional Sessions Judge framed charge under Section 304- B of the IPC against the appellant, who abjured his guilt •^ ^'. 7. The prosecution examined 15 witnesses in all. Thereafter statelnent of the accused was recoprded in which he dehied the circumstances appearing againsthim in the prosecutibn case and pleaded m and false implication. ] 8. After hearing learned counsel for the respective parties, the trial Court convicted and seHtenced the appellant as described in para-1 ofthe judgment. | 9. On 27-1-2010, thisCourton rioticingthe factthatthe doctors/who had given autopsy report, ixijury report of the deceased, injury report of the appellant, witiiesses of merg intimation were not examined during trial, directed the learned Sessions Judge, Rajandgaon, to take additional evidencejand forward the same. Thereafter, Dr. V.R, Meshram (PW-16), Umakant Tripathi, retired head constable (PW-17), Dr. Neeraj Shende (FW-18) and Rama Shankar Rai (FW-19) retired ASI, were examined by the prosecution. lO.The appellant's additional statementunderSection^S was recorded and thereafter the appellant examined one Pawan Sharma in his defehce. 1 l.The deafh of the deceaseld has 17 Umakant Tripathi memo from the hospital that Annapurna has back, both hands, kerosene is emanating Raj Kumar, whereupon j hospital to examine due to burn injuries is not in dispute. PW- deposed that on 14-2-2002 he received a at about 18.25 hours mentioning therein burh injuries at 4 pm. Her chest, stomach, face and body is burnt and 8mell of she has been adnutted for treatment by vide memo of Ex.-P/18 he requested the Annjapurna and give reporf. Dr. Neeraj Shende sustained and 4"' ,'K^*" ^. examined her and gave Ns report vide E^x.-P/18 arid opined that she has sustained 70-80% burnmjuries. 12.0n the same day PW-: 18.25 hours in which sustained burn injuries pna. He was also admitted the inemo for his medical of the appellant is Ex.-P/ that on examination he 17 also received memo from the hospital at |it was mentioned that the appellant has jover both his hands and toe of the leg at 4 by Raj Kumar, whereupon he forwarded examination and medico legal injury report -P/19. Dr. Neeraj Shende has also deposed jfburid that the appellant's both harids were the exterit of 20-25% and he was also burnt and burn was to admitted in the hospital. 13.PW-16 Dr. V.R. Meshram, medical officer, has conducted postmortem over the person of the deceased and proved his report of E)x.-P/17. In his report, he has mentijoned that her eyes were Semi ppen. Mouth was open. Tongue was inside the mouth. Superficial to deep burns are present on face, neck, chest, abdomen, upper linibs, both thighs, back, buttocks and small area on the middle region of both legs. Burn surface area is 80%. Carbon soot is presenf in nostrils, larynx and trachea and burns are ante mortem in nature. On internal that exainination, he found carbon soot was present. whereas right cham.ber| present. She was admitted the same day at 10.15 death of the deceased isl larynx and trachea were congested and Left chamber of the heart was empty was full of blood. Undigesfed food was in hospital at 5.50 pm and she died pn pm. He has further opined that cause of shock as a result of exterisive ante morteni burns. In cross-examination, he has admitted that Rajendra sustained burn injuries on both hands and toe of the left leg at 4 pm ^iB&^^ -€^";< \•^ •v while he was trying to save his wife and this fact he has mentioried in his memo of Ex.-P/19. He had exaihined Rajendra in the hospital. 14.Shri H.S. Ahluwalia, that there is inordinatd learned Froin the evidence available parents and other They were present at perforined in their riot mention that the relatives demand of dowry. The time much after the inc counsel for the appellant, submitted delay in lodging first information report. on record, it would be evident that her immediately reached on very next day. tinie pf inquest and inquest (Ex.-P/3) was ^ however, in the inquest report, they did appellant treated the deceased with cruelty for Siforesaid aUegations were made for the first incident and his statement was recorded for the the presence first time on 6th March, 2002 after regisfration of the crime. 15.It was further argued that the deceased that appellant, as there is On the contrary, the burst stove, burnt clothing also the fact that hairs was an accidental buri{iL evidence of parents andl did not demand any dowry to meet his Uvelihood of marriage, no dowry deceased was treated of dowry by the appellanjt both the hands and toe 1 the prosecution has utterly failed to prove committed suicide or she was set on fire by the not an iota of evidence to establish this fact. s rrounding circunistances i.e. presence of of the deceased scattered in the house, as the deceased were unburnt and intact and Qf she sustained burn injufies above knee level goes to suggest that it was case. He further argued that from the other witness, it is clear that the appellant r. He demanded money as he was not able from his earnings. Eveh at the time demanded. There is no evidence fhaf the expenses with cruelty sobn before her death for demand b. The appellant sustained burn injuries on of his leg while trying to save his wife who accidentally caught fire evidence has been brushed and surmises. Independent where the appellant categorically deposed peacefully and there the house where the thdt was has categorically denied after consuining liquor. IS.The trial Court, relyingi due to bursting of stove, however, the above aside by the trial Court on conjectures witnesses who are resident of locality and the deceased resided together have the appellant and the deceased were livirig no quarrel between them. Even owner of appellant was tenant at the time of the incident the suggestion that the appellant beat her 16.0n the other hand, learned counsel for the State has supported the impugned judgment. 17.We have heard learned a^unsel for the parties, We have perused the record as also impugnedjudgment, upon the evidence 6f PW-3 Ram Kumar, father of the deceased, PW-7 Shakun Sharma, mbther; PW-8 Shail Sharma and PW-2 Pushpa Sharma, has held that the appellant used tq demand dowry from the deceased and used to torture and freat her with cruelty. He treated her with cruelty for demand of dowry soon before her death. Rejecting the defence of the appellant that he sustained burn injuries while trying to save his wife, it has been held that Shakun Sharma (PW-7) has deposed that he did not participate in funeral of the deceased and he was admitted in the hospital for 2 days as he had consumed excessive liquor and was unconsciousfor 2 days and thus, it is proved that the appellant himself set her on fire ahd in order to create the defence he burnt his hands. 19.PW-3 Ram Kumar Sharma is the father ofthe deceased. The sum and substance of the evidence of this witness is that the appellant ^.^'''•^^^ Y;^'. ^—»- ^- ;;;^^^^'., ^ t^ .^:. married Annapurna in 1ihe year 1998. At the time of marriage, he gaye some ornainents, uterisils, bedding and Rs.5,000/- in dcwry. He had given above dowry of his own free will. Only 6 inonths after her marriage,. she started living separately from her in-laws. His daughter complained that behaviour of the appellanf with her is not proper and he beats her after consuming liquor and demands money. He has also stated that fhe appellant came to him and demanded Rs.10,000/- for repaymjent of loan, whereupon he had paid him Rs.2,000/-. In January,} appellant sent his daughter to him to bring Rs.5,000/ - and at that time, she stayed with him for 1 % moriths and while she was going hacle, he gav^herRs.3,000/-.Theappellant also demanded mpney fromj his sister and his mother-in-law. The deceased used to complain that the appellant harasses her for 1 money. He consumes liquor and does not bring grains. He learned through telephone fromi one Pawan that Annapurna has sustained i:' ' burn injuries, whereupon he had asked her to contact his daughter Pushpa.In the morning, he reached at 9 am to Durg hospital where he learned that Annapurna has died and after her death, they performed her fyrieral at Durg, as the parents of the appellant refused. The appellant idid not participate in her funeral. He had seen her dead body and found that her face and hairs were nof burnf. Her hand and leg was also not burnt whereas, her neck and fhighs were bumt. Inipara-13 of his cross-examination, he has admitted that since the accused harassed her, he used to give money ; to his daughter for establishing her household and purchasing -l' . .•-. . . • rafion. He has also admitted that when they visifed to bring Annapurna during festival, they never saw the appellant and Annapurna quarrelling. | He has denied the suggestion from the 1 ^s-x ^'^'~';_;'i ^-v:: •^SP^''."'-^- S ^ :^' defence that the deceased wanted to marry one Pawan Lohar though he has stated that information about fhe inciderfct was given to him ,r ••. : ' — • ^' .. • •• - • • . • • • • " , • .. •' • •. by Pawan. J ! 20.PW-2 Pushpa Sharma is|the sister of the deceased. She has deposed that the appellant was jhgibitual of consuming liquor. Annapiirna once resided in her.parentalhomefor 2-2^ months and at that time, she also stayed there for a week. Annapurna informed her that her husband is indebted and demanded a sum of Rs. 10,000/-. She had 1 •• '. • .'.';•.••. ' . . also complained that he spends his salary 6n liquor. He has also sold her ornaments andj pledged some ornaments. Her father had given Rs.2,000/- to thej accused and Rs.3,000/- to Anhapurna, as the appellant used to harass Annapurna and send her to 'Mayka' for bringirig money. This witness has also deposed that Pawan came to her house at 11 pm in jthe night and informed about the incident, i ;' . • .• • , ' • • • ' . •' • , '• ' " . • howeyer, she went fo the hospital on the riext day, by the time she was dead. She found the appellant iri intoxicated coridition in the hospital. This witness hjas denied the suggestion of the defence that the deceased wanfed to inarry Pawan Lohar and she had threatened f6 commit suicide if they do not allow her tomarry with him. In para-16, she has deposed that her elder mother and maternal uncle work in the hospital. Tliey were presenf in the hospital and they did not tell her as to how Annapurna caught fire. They only told this much that she was asking for water. i 21.8hakun Sharma (PW-7) is the mother of the deceased. She has also deposed that treatment |of the appellant towards Annapurna is not good and he harasses her. She used to complain her that they did not give anything in dowry and asked her to bring inoney from the M^^'-^; ^,-w^w L- house. She also complained and spends in liquor. her and she has given not pay money, your had also informed her Annapurna was not whereupon, last time resided for 2 months paid them Rs.2,000/- complain that the fhat the appellant takes money on loan The appellant had also demanded money from her Rs.2,000/-. He used to threaten aif you do daughter would not be hap£y??. His landlady that behavioyr of the appellant fowards proper and he has not paid rent for 3 months when the deceased came to their home/ she with fhem and while she was going back, they and grain for a month. The deceased used to appellant has pledged her ornam.ents. / 22. Similar is the evidence of Shail Sharma (PW-8), aunt of the deceased. 23.PW-4 Ashok is the landlord pf the appellanf and fhe deceased. He a^pellant and the deceased lived in his house has deppsed that the happily and they neveri declared hostile by the] also, the prosecution coUld 24.Budhanteen Bai @ appellant and the lived in her house as deceased saw them quarrelling not pay rent for 4-5 wife and he does not has denied her diary appellant, however, she Rs.200/- as rent. Pawanj in the similar lines. @ quarreled in his presence. He has been prosecution and in his cross-examination not elicit anything against the appellant. Bisanteen Bai (PW-5) is another landlady of the 1. She has also deposed that both of them tenant for 5-6 months happily and she never though she has deposed fhat the appellant did months. She never saw the appellant beating his consume liquor. In cross-examination also, she ^tatement regarding allegations against the Ijias admitted that father of the deceased paid Sharma, defence witness/has also deposed ^ ^' ^'; 25.Ghanshyam (PW-6) is deceased and also runs Ithe neighbbur of the appellant and the grocery shop. He has turned hostile and not supported the prosecution case. evidence. The parents deposed that the appell^ used to harass the deceased parents to bring money. one occasion a sum of 10 26. From the evidence of witnesses, it is seen that there are two sets of bs, sister and aunty of the deceased have appellant was habitual of consuming liquor. He for money. He used to send her to her From their evidence, it also appears fhat on Rs.2,000/- was paid to him by Ram Kumar and on another occasion he gave Rs.3,000/- and ration for a month when his daughter was returning back to her matrimonial home. 27.The question for our consideration is - whether harassment by the husband, who is habitual of consuming liquor and demarid of money for paying loan can be considered to be a demarid of dowry for the ^s. purposes of Section 304-| 28.From the evidence availible BoftheIPC? probablY addicted to to manage his family's ask his wife to bring her father gave money cannot be termed to be day t6 of the witnesses that even given as dowry was wi faniily nieinbers. We Pawan, who informed incident as also other fi the on record, we find that the appellant is alcohol and because of this vice, he was not able day-to-day expenses and, therefore, he used to money from her parents and on two occasions, her and the appellant. But such demand dowry, particularly, in the light of admission at the time of marriage, whatever was witl|iout any demand from the appellant or his also observe that important wifhesses i.e. father and sister of the deceased abput the family members of the deceased i.e. aunty and maternal uncle, who were present in the hospital while the deceased .^••;..>-:--...... A^ ,<-:!i .^,- was alive and talked to her, have not been examined during trial and there is no explanation fpr their non-examination. 29.We are also of the by the prosecution that) death. We take note ofl opinion that there is no cogent evidence adduced the demands were made soon before her harassment by the 2002 when diary videEx.-D/l. the facf that allegations of any demand or appellant canie for the first time on 6th March, statement of her fafher Ram Kuinar was recorded 30.Froin perusal of the and evidence of other appellant sustained burn and he was brought by the same doctor who admitted <?f burn due to bursting considering the fact that injury on her head and face the 32.In the circumstances^ himself set the deceased injuries to create a defence < conjeetures and surmises^ record. 11 ~^ -(^ ^ yv inquest report, evidence of Dr. V.R. Meshram witnesses, it is seen that her hairs were intact. She did not sustain burn injuries on her face or head and her both hands and legs below knee were also not burnt. From seizure menip of EX.-P/9, it is seen that stove was seized from the kitchen room containing 50 ml of kerosene and its cap was open; Sl.After going through the entire evidence and the fact that the injuries on both hands in the same incident Raj Kumar and also admitted in hospital by the deceased, possibility of accidental stove cannot be ruled out, particularly, the deceased did not sustain any burn finding of the trial Court that the appellant on fire and thereafter himself inHicted burn is perverse and the sarae is based on and without any evidence available on 1 Sd/- Dhirendra Mishra Judge Barve 12 ^ it under Section 304-B of the IPC are set 33.In the result, the appeal is allowed. Conviction and sentence imposed upon the aside and he is acquitted liberty forthwith unless of the said charge. The appellant be set at required to be detained in any other case. Sd/- R.N. Chandrakar Judge J'-