'^) APi^ HIGH COURT OF CHHATTESGARH AT BILASPUR (SB: Hon'bleMr. T.P.SHARMA, J_) Criminal ADpeal No.585 of 2005 Santoshdhapi Vs. The State of Chhattisgarh JUDGEMENT 4. Post for 27/7/2009 Sd/- T.P. Sharma Judge ^^ AP^. APPELLANT (InJail) HIGH COURT OF CHHATnSGARH AT BILASPUR Criminal Appeal No.585of 2005 Santoshdhari son of baulat Ram Satnami, aged about 22 years, Resident of vitlage Gumiya. out Post Hardi Bazaar/ Tahsil and District Korba, Chhattisgarh. RESPONDENT Versus The State of Chhattisgarh (APPEAL UNDER SECTCON 374 (2) OF THE CObE OF CRIMINAL PROCEDURE, 1973) (SB: Hon'ble Mr. T.P. Sharma, J.) Present: Mr.K.A.Ansari, Senior Advocate with Mrs.Meera Jaiswal, Advocate for theappeltant. AAr.Akhil Mishra, Dy.Govt.Advocate forthe State/respondent. JUDGMENT (belivered on 27th July,2009) The appeilant who is hysbandof deceased Prema Bai has challenged the legality and propriety of the judgmentof conviction dnd order of sentence dated 29.6:2005 passed by the Additional Sessions Judge, Korba, in Sessions TriQl No.1/2004 whereby and whereunder the learned Additional Sessions Judge after holding the appellant guilty for theoffence punishable under Sections 498-A and 304-B of the Indian Penal Code sentenced him to undergo rigorous imprisonment for 2 years and topay a fine of Rs.3000/-, in default of payment of fine to further undergo rigorous imprisonment for 6 months and rigorous imprisonment for 7 years. 2. Judgment of conviction and order of sentence is challenged on theground that wi'thout there being an iota of evidence relating to commission of cruelty and torturein connection with demand of dowrySoon before death of Prema Bai, the Courtbelow has convicted and sentenced the appellant as aforementioned and thereby committed on illegality. /fy!%K^ ..^-&^^/-1 ^•s/- 'v^^s'"^'" ^s^:; •(^: ^ (:; 3. Case of the prosecution, in brief, is that the presentappellant is husband of deceased Prema Bai who married with the appellant in the month of June, 2003 and died on 27.4.2004 asaresult of hanqinq herself in the house of the '1.1..; appel lant. After marriage of Premo Bai , the appellant and their reldtives used to demand of dowry especially television, motor-cycle and other articles and as a result of such demand,torture and cruelty, she committed suicide. Merg intimation was registered vide Ex.P/6 on 27.4.2004 and on the basisof merg mtimQtion registered merg was recorded vide Ex.P/8. Investigating officer proceeded for the scene of occurrence and after summoning the witnesses, inquest was prepared over the body of the deceased vide Ex.P/8. bead body was sent for aytopsy vide Ex.P/9. Autopsy was conducted by the t^arnof doctor vide Ex.P/5 and opined that cause of death was asphyxia as a result of antemortem han9ing. Spot map was prepared by patwarivide Ex.P/2. Sealed clothes of the deceased were seized vide Ex.P/7. Spot map was prepared vide Ex.P/10. F.I.R. was lodged vide Ex.P/12. 4. After recording the statements of the witnesses under Section 161 of the Code of Criminal Procedure, 1973 (in short 'Code') and after completionof investigation, one charge sheet was filed before the Chief Judicial Magistrate, Katghora who in turn committed the case to the Court of Sessions, Bilaspur from where learned Additional Sessions Judge, Korba received the same on transfer fortnal. 5. In order to prove the guilt of the accused/appellant/the prosecution has examined as many as 20 witnesses, StQtement of the accused was recorded under Section 313 of the Code where he denied the circumstances appearin9 against him and innocency and false implication is pleaded. Appellant has examined ht'mself as defence witness and taken the defence that Prema Bai was married to him in the year 2003 and at that time there was no demand of dowry. After her marriage behavior of Prema Bai with the appellant was abnormal. Sometime she used to press his neck and used to bite the ear. She used to misbehave with the accused/appellant. He has also stated that even there was no consymption of marriage. He has tried his level best but he was not succeeded to maintain physical relation with the deceased. He has lodged the 4^^.'^ y:'^^.:;. . ^ -^ ^ c- report (Ex.&/2) on 3.10.2003 against the deceased and also examined baulatram bhari (DW-2), Smt.Ramkunwar Bai (bW-3), Ku. Uma (bW-4), Bharat Ratre (bW-5) and Milan Ratre (DW-6),7\.Tirki (DW-7) and Awadh Ram (DW-8) as defence witnesses. befence witnesses have also deposed that the acc^ssd persons had not committed cruelty or torture upon deceased Prema Bai. beceased Prema Bai was residing with the present appellant after her marriage. They have denied any demand of dowry. A.Tirki (bW-7) has proved Ex.D/2. 6. Learned Additional Sessions Judge after affording an opportunity of hearing to the parties, convicted and sentenced the appellant as aforementioned. 7. I have heard Mr. K.A.Ansari/Senior Counsel Mrs. Meera Jaiswal, counsel for the appellant and Mr.Akhil Mishra, Deputy Government Advocate for the State/respondent and perused the judgment impugned and record of the court below. 8; Learnedcounsel for the appellant vehemently argued that the appellant was mdrried with deceased Prema Bai but behavior of Prema Bai was not normal and cordial. She did not like the appellant and used to mtsbehave with him. Sometime she tried to press her neck. Sometime she used to bite his ear and even she has refused to maintam matrimonial relation. The present appellant never demanded motorcycle, televisipn and other articles and after death of Prema Bai he has been falsely implicated the present appellant. The present appellant has lodged the report on 3.10.2003 against the deceased relating to her misbehavior. Learned counsel further submits that on the date of alleged incident, the appellant was juvenile and below the age of 18 years but the Court below has disbelieved the ctaim of the appellant. Conviction by the Sessions Judge to the juvenile is apparently and in the absence of any credible and clinching evidence, conviction and sentence of the appellant is not sustainable under the law. 9. On the other hand,learned counsel for the State/respondent supported thejudgment impugned. k^gall!: F',- .:;:' t^ c-:- 10. In order to appreciate the contentions of the parties, I have examined the mQterial available on record. As regards the age of theappellant is concerned/ present offence took place on 27.4.2004 and according to inquiry conducted by the trial Court relating toage of theappellant, his date of birth was noticed as 15.3.85 and at the time of incident he WQS aged about more than 18 years. The finding has not been challenged by the appellant and it reached intofinality. 11. The appelldnt was married with deceased Prema Bai in the year 2003 and she diedwithin 7 years of her marriage on 27.4.2004 as a result of hanging in the house of the appellant in abnormal circumstances is not disputed, otherwise established by thestatement of Smt.Harihar Bai (PW-1), Ku.Manjulata (PW-2), G.S.Bhaskar (PW-3), Malik Ram Tandon (PW-4), merg intimation (Exs.P/6 and 8), FJ.R. (Ex.P/12), inquest report(Ex.P/4), statement of br.R.K.Divya (PW-13) and autopsy report (Ex.P/5). On 27.4.2004 the deceasedcommitted suicide by hanging herself and she died as a result of hanging. Cause of death was due to asphyxia. 12. The present appellant has taken specific defence of misbehavior and insdnityof the deceased and has lodged written report (Ex.D/2) which is admittedby the defence witness A.Tirki (bW-7) that he has received written reporton 3.10.2003 and also admitted that he has directed the appellant for treatment of his wife but he has not taken any action on the basis of such report. Ex.b/2 is written report. But, itis a matter of surprise that no action has been taken by the police even they have not care to record Rojnamcha of thesame.In Ex.D/2 theappellant has not mentioned that even the deceased refused to maintain matrimonial relation. The present appellant has examined himself as defence witness ancl specifically deposed that as a result of resistance and misbehavior of the deceased, he has not maintain physical relation with the deceased. Autopsy was conducted by br.R.K.Divya (PW-13) who has noticed that size of uterus was normal and no externaiinjury was foundover the private part of the deceased but nothing has been asked by the defence relating to presence of hymen or anything which would show that marriage has not been consumed. It shows that the appellant has not consumed the marriage ^ is admittedly false defence though prosecutioncannot take hetp of weakness of defence and the prosecution is required to prove its case beyond all shadow of doubt and requires to stand on its own leg. 13. Smt.Harihor Bai (PW-1) mother of the deceased has deposed that just after marriage the accused persons used to demand colour television and motorcycle and used to torture Prema Bai and even they do not provide proper meal to her daughter. When she came back to her maternal house after two days of her marriage then even she told to her mother that their in-law's and relatives used to quarrel with her and demands television and motorcycle. She has also deposed that when she went to the house of the appellant with her daughter then they also demanded colour television and motorcycle then she called some persons of the Village Gumiya where the appellant and her relatives were residing and narrated the incident to them. She has also deposed that before 20 to 25 days of the incident she took the deceased to her house for festival andagain on 25.4.2004 she went along with deceased to the house of the appellant where the appellant and his relatives have quarreled with her and again demanded motorcycle and colour television and threat her that if she will not provide colour television and motorcycle then she will see dead body of her daughter. She left the deceased in the house of the appellant and came back to her house. On 27.4.2004, she came to know that her daughter had committed suicide. Ku. Manjulata (PW-2) sister of the deceased has also corroborated the statement of her mother Smt.Harihar Bai (PW-1). G.S.Bhaskar (PW-3) brother- in-law, Malik Ram Tandon (PW-4)/maternal uncle of the deceased, Ghasiram (PW-5), brother-in-law of the deceased, Phulsai (PW-7) grandfather of the deceased, Manharan Singh (PW-8) grandmother of the deceased and Jagmohan (PW-9) neighbour of father of the deceased have deposed that the appellant, father, mother and other relatives used to demand motorcycle, television and other articles and used to commit cruelty and torture upon the deceased. The appellant has examined himself as defence witness but he has admitted that on 25.4.2004 his wife was not present in his house and she was at her mother house. The other defence witnesses have deposed that Bharat was present at the time of incident and Bharat who is son-in-law of the co-accused Daulat Ram ^-^? ^/^& •^ '^.^'..^ 1—1^; i., did not frequently visit the house of Daulot Ram.He is not connected anything with the incident. Other witnesses have also depbsed that according to their information, the accused persons have not demanded dowry but in theircross- examination, they were having no knowledge about the incident. 14. In the present case, the deceQSed was died within one year of her marridge in abnormal circumstances in the house of the appellant. 15. Learned counsel for the appellant also argued and attacked upon the propriety of the investigation on the ground that the present investigating officer Emil Lakda (PW-20) has specifically deposed that he has started investigation on 30.4.2004 and registered the offence on 29.4.2004 vide Ex.P/12. He has also admitted that on 29.4.2004 or 30.4.2004, relativesof the deceased have not lodged any report and also admitted that he used to investigate the offence in accordance with law. Learned counsel further argued that the investigating officer recorded the statements of the witnesses whose residence are 50 to 100 km. away from policechowki. He has admitted in para-4 of his evidence that he has recorded the statements at police chowki Hardi Bazaar. 16. Virtually defence has tried to show that alleged F.I.R. (Ex.P/12) hasbeen lodged on 30.4.2004, then how it is possible for the investigating officer to record the statements of the witnesses under Section 161 of the Code on 29.4.2004. Present F.I.R. (Ex.P/12) is basedon the F.I.R. registered under 0/2004 by the investigating officeron 29.4:2004 and on 29.4.2004 after recording the F.I.R. the investigQting officer has recorded the statements of the witnesses. The investigating officer has not committed any illegality or any departure from the law or rules when all the witnesseswere present atpolice chowki Hardi Bazaar. The investigating officer was under obligation to record the statements of the witnesses on same day which he has done. 17. In the present case, in order to establish the charge of Section 304-B of the Indian PenQl Code, the prosecution is required to prove the demand of dowry 'soon before the deathof Pushpa Bai'. Pushpa Bai diedon 27.4.2004 as a result of hanging in the house of the present appellant who is husband of the deceased ^' ^ ^ within one year of her marriage. Srnt.Marihar Bai (PW-1) mother of the deceased has spedfically stated in para-6 of her evidence that justbefore two days the deceased came back to the house of the appellant where they threatened the deceased and her mother in connection with demand of dowry and she comtnitted suicide within two days. 18. Ihorder to prove demand of dowry soon before her death, there must be nexus between demand of dowry and alleged commission of suicide of the deceased. In the matter of Prem Kunwar v. State of Rajasthan. the Apex Court has held that for raising a presumption of dowry death under section 113- B of the Evidence Act there must be proximity and live-link between the effect of cruetty based on dowry demand and the concerned death. Para 12 of the said judgment reads as under:- "12. A conjoint readingof Section 113-B of the Evidence Act and Section 304-B, IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113-Bof the Evidence Act and Section 304-B, IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. ISoon before' is a relative term and it would be depend upon circumstances of edch case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period/and that brings in the importance of a proximity test both for the proof of an offence of dowry deathas well as for raising a presumption under Section 113-B of the Evidence Act. The expression *soon before her death' used in the substantive Section 304-B, IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicted and the expression tsoon before' is not defined. A reference to expression lsoon before' used in Section 114/ Illustration (a) of the Evidence Act is relevant.It lays down that a Court may presume that a man who is in the possessipn of goods 'soon after' the thcft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come 12009 CRI.LJ.1123 B/- \^ within the term lsoon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before* would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximQte dnd live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stQle enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence." 19. In thepresent case statements of the witnesses supported by the prompt lodged F.I.R. (Ex.P/12) is sufficientfor drawing inference that the accused has demanded motorcycle and committed cruelty and torture upon the deceased even just after twodays beforethedeath of the deceased and as a result of such cruelty and torture, no option except to end of her life was left to the deceased and deceased has ended her life by committing suicide. The alleged act of torture and cruelty is independently punishable offenceunder Section 498-A of the Indian Penal Code. 20. After appreciating the evidence availabie on record, learned Court below has acquitted other co-accused on the ground that evidenceadduced by the prosecution WQS not sufflcient to warrant conviction against them and has convicted and sentenced the present appellant as aforementioned. Conviction and sentence of the appellant is based on credible and clinching evidence sustamable under the law. As a result of cruelty/one young woman i.e. wife has ended her life. The sentence awarded by the Court belowis neither excessive nor unjust. I do not findany illegality or infirmity in the judgment impugned. 21. For the foregoing reasons, the appeal has no merit, same is liable to be dismissed and is accordingly dismissed. Sd/- T.P. Sharma Judge