..,^:°:?a%. n'^^^Sl^ ^ APPELLANT: (!n Jai!) RESPONDENT: HIGH COURT OF CHHATTJSSARH. BILASPUR Criminat Appeal No.264 of 2006 Pushpendra Sahu, aged about 23 years, S/o Shri Barat Ram Sahu, R/o VilSags Dhamni, Police Station Jaijaipur, Distt. Janjgir-Champa (C.G.) Vereus State of Chhattisgarh, Through ttie Police Station Jaijaipur, Distt. Janjgir-Champa {Criminal appeal underSectton 374 (2) ofthe Code ofCrimina! Procedure, 1973) Present: Mr. R.K. Jaiswal, counsei for the appellant. Mr. Pankaj Shrivastava, Panel Lawyerforthe Statefrespondent. Sjnnte Bench: Hon'ble Mr. T.P. Sharma, J ORALJUDGMENT (11-11.20CB) 1. The appellant has challenged legatity & propriety <rf the judgment of conviction & order of sentence dated 30-3-2€X)6 passed by the AddiUonat Sessions Judge, Sakti in Sessions Trial No.334/2005. whereby tearned Additionat Sessions Judge after holding the appetlant guilty for commission of offence under Sections 304B, 498A & 306 of the I.P.C., sentenced hfm to undergo R.I. for seven years & pay a fine of Rs.1,000/-, in default of payment of flne to further undergo R.l. for three months, to undergo R.t. for three years & pay a fine of Rs.500/-, in default of payment of flne to furfter undergoR.t. for 1 % months and to undergo R.l. for seven years & pay a fine of Rs.SW/-, in default of payment offine to further undergo R.l. for 1 % months, respectwely. 2. The judgment of conviction is challenged on the ground that without any crsdibte and rellable evidence of commission of croeity in connecUon with demand of dowry, the Court betow has convicted & sentenced the appeiiant as aforementioned. 3 Case of the prosecution, in brief, is that the accused/appellant is the husband of deceased Dushila Bai. Dushila Bai was man-ied to the accused on 17-6- 2004. The accused and his relatives used to torture & harass the deceased in connection with demand of dowry. On 13-2-20W, at about 7-8 a.m. when the accused was not present in the house, deceased Dushila Bai poured kerosene oil over her body, set herself on fire and committed suicide. When Uie accused r -10 .-^^-^•fe:^^ came to his house, he saw some smoke from ttie room of the deceased which was closed from inside where upon after breaking the door, he entered inside and saw the burnt dead body of Dushila Bai. Smell of kerosene oii was coming from the body. Bharat Lal lodged the merg intimation vide Ex.P-3 at Police Out Post Hasaud, Police Station Jaijaipur and on the basis of Ex.P-3, numbered merg intfmation was written vide Ex.P-21. The InvesUgating Officer left for the scene of occurrence and after summoning the wttnesses, prepared inquest over the body of the deceased vide Ex.P-1. The body of the deceased was sent for autopsy vide Ex.P-23 to Communtly Heaith Centre, Jai^ipur where the autopsy was conducted by a team of doctors. Dr. (Miss) Saroj Kachchhap (FW-14) has conducted autopsy along wHh "another d<wtor on 24-2-2005. Dushita Bai was burnt up to 94% of 15i & 2nd degree, bum injuries were ante mortem in nature, carbon particles were present inside moith & oesophagus, and she was pregnant. Dead was due to shock as a resutt of ante mortera bum of 94%. The F.I.R. Ex.P-5 was registered and on the basis of Ex.P-5, numbered F.I.R. was registered vide Ex.P-6. Burnt pieces of bed sheet, Sari & other artictes were seized from the spot vide Ex.P-8. Spot map was prepared vide Ex.P-10. Panchanama (memorandum) was prepared on the spot vide Ex.P-12. The accused and hls relatives wera arrested and ptiotographs were taken. 4 After comptetion of investigation, charge sheet was flled before the AddiUonal Chief Judicial Magistrate, SakU, who in turn, commMed the case to the Court of Sessions Judge, Bilaspur, from where Jearned AdditionalSessions Judge, Sakti receh/ed the case on transfer for triai. 5 In order to prove the guilt of the accused, the prosecution has examined as many as 17 witnesses. Statements of the appellant and other co-accused were recorded under Section 313 of the Cr.P.C. in which they have denied the circumstances appearing against them and pteaded innocence & false implication. 6 After conctusion of trial and affording opportunity of hearing to the parties, tearned trial Coun has acquitted the relatives of the present accused/appellant namely, Rambal, Baratram, Jagdish Sahu & Kum. Henrtata Sahu, however, convicted & sentenced appellant Pushpendra Sahu In the aforesaid manner. 7 I have heard ieamed counsel for the parties and pemsed the impugned judgment as also the record ofthe trial Court. 8 It is argued on behalf of the appellant that prior to commission of suteide, the deceassd or her maternal relatives have neither todged any ropoit nor ^7 BHI .a.i;.3E S>33 ii?'!•"•• convened any meeting of the Panchayat, they have atso not made any complalnt or informed any person relating to harassment or torture in connection with demand of dowry, but after the death of Dushila Bai, her father, mother & brother have falsely implicated the accused/appellant & his relatives and have falsely stated againstthem. The appellant has committed no offence and the prosecution has not collected any clinching & reliable evidenca against the appellant for commission of the offence alleged against him. 9 On the other hand, the judgment is suRiortBd on behalf of the State/ respondent and it is submitted that the prosecution has adduced retiabte & credible evidence againstthe accused/appellant. Qopal Sao (PW-1) -father of the deceased, Gulapi Bai (PW-2) - mother of the deceased & Gurucharan (PW-3) - brother of the deceased have specificaily deposed that the appetlant used to harass & torture the deceased in connection with demand of dowry and as a result of such harassment & torture, she was compelled to commit suicide. 10 In the present case, abnormal death of the deceased as a rssult of commission of suicide by buming is not dlsputed on behalf of the defence, otherwise, it is established by the evidence of Gopal Sao (PW-1), Gulapi Bal (PW-2), Gurucharan (PW-3), Chain Singh (PW-4) & Bharatlal Sahu (PW-5) who have stated that Dushila Bai died as a resuit of the burn injuries and she received burn injuries in the house of the appeltant which has been confirmed by the evidence of Dr. (Miss) Saroj Kachchhap (PW-14), who has conducted post- mortem on the body of the deceased and has speciflcally stated ttiat on 24-2- 2005 she has conducted autopsy over the dead body of Dushila Etai vide Ex.P- 24 and opined that the cause of death of the deceased was asphyxia due to shock as a resutt of the bum injuries, the burn injuries were ante mortem in nature. 11 It is not disputed that the deceased was marriedwith the appeltent on 17-6- 2004 and she died as a resuft of the burn injuries on 13-2-2006 within one year of her marriage, in abnormal circumstances. The only quesflon for determination of this case is whether the accused has tortured & harassed the deceased in connection with demand of dcwry soon before her death? 12 In order to appreciate the contentions of ttie parties, I have examin«l the evidence of fce witnesses. Gopal Sao (PW-1) - fiather of tte deceased has spectflcally stated in his evidence that at the time of marrlage he has given sufficient articles like motorcycle, cooler, fridge, Almirah, gold & silver, but on the date of marriags, the accused has not taken the artides with him and totd that he wilt take them after the marriage of his sister i.e. after 18-6-2004. On the date of mamage of the sister of the appellant, when this witness went to the 4 -^li house of the appellant with motoreycle and he gave ttie key of motorcycle to fce appellant, the appellant thrown away the key and demanded MarehaH jeap on which he came back to his house. After 18-6-2004, again there was some dispute and the appeltant called flve pereons from his viltage and before fliem he told that Dushlta Bai did not know how to cook raeat, fish and other items. The appetlant again demanded Marshall Jeep. Uttimately, Dushila Bai committed suiclde. Demand of motoreycie has been supported by Gutapi Bai (PW-2) - mother of the deceased and Gurucharan (PW-3) - brether of the deceased has supported the version of Gopal Sao (PW-1). Bharatlal Sahu (PW-5), who has iodged the merg intimation, has stsrted that DusNla Bai committed suicide inside her room and after breaking the door they went tnside the room. 13. Dushila Bai died in abnormal condMion in the house ofttie appellantwho is her husband. Gopal Sao (PW-1) has admitted in his cross-examinatiwi that at the time of marnage or before mamage there was no demand relating to dowry. In para 12 of his cross-examination, he has denied the suggestion that he has condemned the appellant by using the words "you peepte are not equat to my shoe". He has admitted the contradictions & omisstons in his Court evUence and his statement recorded by the Police. 14 Gutapi Bai (PW-2) has also been cross-examined t»ythe defence at length, but the defence has not been abte to elicit anything in her cross-examination to show ttiat this appeliant has not demanded Marshall jeep. Gurucharan (PW-8) has also been cross-examined by the defence ait tength, but the defence has not been able to elicit anything in his cross-examination too to show that the appellant has not demanded Marshall jeep. Throwing of key of the motoro^ste has been supported by Chain Stngh (PW-4). 15.It is evident from the evidence of Gopal Sao (PW-1), Gulapi Bai (PW-2), Gurucharan (PW-3) & Chain Singh (R(V-4) and also from the suggesUon made on behalf of the appellant that they were not in cordiai relatfons and it appears from their statement that when Gopal Sao (PW-1) gave fte key of motoreycie to the appeltant, he has thrown away the key and demanded Marshalt jeep. Although the evidence of Gopat Sao (PW-1) has been recorded after the death of Dushila Bai and the matBmal relatives of Dushlla Bai have not stated anything at the Ume of inquest or at the time of raerg and they have not lodged ttie merg, but soon after the incident of commission of suicide they have stated to the Police regarding demand of Marshall jeep by the appellant. Their .^wai' said anything to the Police Officer or they had not lodged the rwport prior to the date of incident or that they have not convened fte meeting. 16. In ease of domestic violence or harassment, normally the effected pereons i.e. daughter-in-law does not repon or inform anyone about ttie harassment or tortuous attitude of her husbandor in-law's to other pereons but as and when she gets the opportunity, she informs about it to her parents. The parents of the bride normally do not reaet immediately but wait tor an opportune time, In the hope of amteable settlement between the parties and to avoid further comptications which may arise in future. But when the matter becomes intolerable then the daughter-in-tew or the effected lady disctoses the tortuous attitude of her husband and in-law's, to the police, neighbour and othsr persons related to her to get the dispute resotved with their intervention. 17 Gopal Sao (PW-1) has specifically stated that the appellant has called five persons and before them he condemned Dushila Bai. This shows that the behaviour of the appellant with Dushila Bai was not cordial, he was not satisfied with the arfcles provided to him at the time of marrtege, he has demanded & used to demand Marshall jeep, and as a result of regutar condemnation, Dushila Bai has committed sufcide. 18 In this case, charge sheet was filed against flve persons including farther, mother, brother & sister of the appellant, but rest of the accused pereons except the present appeltant have been acquitted of the charges. The prosecution has coliected sufficient material against ttie present sweltent and he has been convicted & sentenced in the aforesaid manner. 19.Conviction of the appellant under SecUon 304B of flie I.P.C. is based on credible evidence and the same is sustainable under the law. tn this case, ttie Court below has also convicted the appeltant under Sections ^8A & 306 ofthe I.P.C. for thesame set of facts i.e. for commHting cruelty & harassment in connection with demand of dowry upon the deceased who is wife of the appellant within seven years of marriage and abetment for commi»ion of suicide. These two distinct offences in the present case are minor offences and included in the offence under Section 304B ofthe I.P.C. Theprosecution has not led any independent evidence to show that apart from cruelty & harassment in connection with demand of dowry, the appellant has committed 20 Consequently, the appeal is partly allowed. Convtetion & sentences of the appellant under Section 3048 of the I.P.C. are maintained, however. convtetion & sentences under Sections 498A & 306 of the I.P.C. are hereby set asicte and the appellant is acquitted of the said charges. If flne amourrt relating to these counts has been paid by the appellant, same be refunded to Wm forftwith. yoma Sd/- T.P. Sharma Judge ^^g,gj{»/ 3ii?""'F' isfsSt9