IGH COURT CF CHHATTISGARH A’I‘ BILASP‘UR H ‘ f Jitendra Kumar and olvl’1er's ‘ Criminal Appeal N0‘907 of 2003 J § 2! ‘If._3LLAN: Versus State of Chhattisgarh UDGMENT FOR CONSIDERATIOI! J /§ Dml‘ls‘ggA WSW Judge y M 40"7 /9/201§ RN.Chandrakar Judge 1 ‘ \ ‘ OST FOR JUDGMENT ON lo -9~2mg P Sd/- Judge LQ_ HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.907 of 200§ 'PPELLANTSI [l n Jail) Jitendra Kumar, son of Prataprai Bhawnani, aged 3O years, by occupation business ‘ v2. Prataprai Bhawnani, son of Morangmal Bhawnani, aged about. 5S years, by occupation business Rajcsh Bhawnani, son of Prataprai B hawnani, aged 2 5 v years, by occupation student Pushpa Devi, wife of Prataprai Bhawnani, aged about 51 years, by occupation: housewife V 4. A11 residents of Village Golbaz‘ar, Barethapara, Khairagarh, Tchsil: Khairagarh, District Rajnandgao (CG) Versus RESPONDENT: State of Chhattisgarh, Through Police Station Khairagarh, District Rajnandgaon (CG) Present: Shri Surendra Singh, Sr. Advocate with ‘Shri Neeraj Mehta 82, Slm' Manis‘h Sharma, Advocates for the appellants. Shri U.N.S.‘ Deo, Govt. Advocate for the State/respondent. Division Bench: Hon’ble Shri Dhirendra Mishra 85 Hon’ble Shri R.N. Chandrakar, JJ. J U D G M E N T (Delivered on _j&!§September, 2010) ‘jThe l following judgment of the Court was delivered by Dhirerlclra Mishr‘a, J. l 1. Thjis criminal appeal is directed against the judgment of conviction and drder of sentence dated 19th July 2003 passed in S.T. No.15/2003 whereby learned Additional Sessions Judge, Khairagarh, District Rajnandgaon has convicted the appellants under Sections 498—A, 30ft. B, 302 and 201 of the IPC and Section 4 of the Dowry Prohibition Act an‘d sentenced each of them only under Sections 802 and 201 of the i ‘V\ A ‘ n ‘ ' ;\ IPC to undergo imprisonment for life and to undergo R.I. for 7 years respectively. However, the appellants have not been separately sentenced under Sections 304—B 85 498—A IPC and Section 4 of the Dowry Prohibition Act, as penalty under Section 302 is higher in - comparison to~Section 304—B of the IPC. PROSECUTION CASE Case of the prosecution, in brief, is that deceased Vandana Bhawnani was rinarried with appellant Jitendra in the year 1998. She was tortured and harassed by her hijsband, father-in—lavv’ Pratap Rai, brother—in—law Rajesh and mother—in—law Pushpa Bai for dowry right after he‘r‘inarriage. On 22-10—2002 at 8,30 prn all the accused persons committed her murder for not bringing dowry from her parental home and thereafter ’set her dead body on fire after pouring kerosene and took her to the hospital for treatment while she was already dead and tried to project that she committed suicide; Merg intimation (Ex.—P/ 1) was given by Drl P.S. Parihar (PW—8) through ward boy on 22—10-2002 that deceased Vandana was brought in the I hospital with 100% burn injuries in dead condition. After registering ). 0 merg, PW—lO Rajesh Agrawal performed inquest over the person of the deceased vide EX P/4 and sent the dead body for autopsy to the Government Hospltal Khalragarh where Dr PtS Parihar (PW 8) and Dr Seema Jaln conducted postmortem on 23 10 2002 and gave their repprt Vide Ex.—P/6. On the same day burnt articles 1.e. match box .with one stick, broken‘latch of the door lying on the ground, wet clothes, carbon particles taken out after scratching almirah etc. were seized vide EX.—P/9. l 4 . Spot map was also prepared by PW 10 v1de LX P/ 10 7 sealed contalners (tin container) containing Viscera blood from ins1de the body of the deceased which came out of her body, hairs of the de<ieased clothes of the deceased etc received from the hospital were sei‘zed v1de EX P/ ll The part of trachea of the deceased and sample of liquid received from the hospital was also taken into possess10n Vide EX.—P/ 12. The above articles seized during investigation weie se nt loi \:\:\\e E , t\‘k\chmical examination to SL, Raipur vide EX.-P/ 14 and report of the . » \ SL is EX.—P/ 15. Spot map was got prepared by Halka Pafwari vide Ex.— P/3o‘ ’ After completmg usual 1nvest1gat10n charge sheet was flled agam st th accused persons 1n the Court of Ch1et Jud1c1a1 Mag1strate Khamxgarll, who 1n turn comrmtted the case to the Court of Sesslons Judge and the same was received Orr transfer for trial by learned Additional Sessions Judge. . Learned trial Court framed the charges under Sections 498—A 8r, 30443 IPC 85 Section 4 of the DoWry Prohibition Act or in alternative Sections 302 306zuu12o1<rthe1pc. ” . w ‘ . The prosecution examlned 10 Witnesses 1n all Thereafter statements of the accused persons were recorded 1n which they denied the circumstances appearing against them in the prosecution case. . Appellant Jitendra in reply to question No.53 stated that on the date of the incident he was sitting in his potato shop with his father when son of his maternal uncle came and informed that smoke is emanating from his room whereupon he went to his house leaving his father in the shop and he found that crowed had gathered outside his house. He with the help of Horilal and 2~4 other persons of the neighbourhood broke the door of his house and went inside He also broke the second door With the help of Hor11a1 and he found that Vandana was burnt Vandana was suffering from abnormal menstruation for the last .ll/2 months She had gone to Raipur for check up 10 15 days befOie and the doctor had adv1sed her that her uterus would be required to be removed due to cancer. Because of this, she was terribly pertuibtd Her brother Rajesh resided at Gandai and his parents were planning to reside at Gandai and because of this also, Vandana used to worry as to i lhow she would live alone in the house. He was residing with Vandana and other family members happily. . The accused persons also examined Dr. Smt. Lax'rni Jirani and Dr. K‘u. Sunita Dhenge in their defence. The trial Court/after hearing learned counsel for the respective parties convicted and sentenced the appellants as mentioned in paragraph—1 of F . e . - \ 'the jdgment, however, aquitted the appellants of the cage u sction 306 of te 1pc. .Learned trial Ct, afte setting ou the issues for onsidertion pararap—9 of the udgmt, held ts:— “The rosecuti as estalishe eyond all reasonable dou hat the accsed persns continously tortured d treate dcea Laxmi Bai @ Vandana wit cruelty for a period of 4 years till the night of 2—10—2002 for demand of dowry. - The prosecution as prove beyond reasonable obt f ‘ that because of il—treatment meted out to Laxrni Bi @ Vand by te ppellants for dowry soon eore her eath she, ied wthin ears of her maiage under u n lan ud ana h a bf d d i 7 y rr nnatural‘circumstances ad the appelts case her dowry death. - Burn injuries prest oe the perso of the deceased were pstmorte in natre. The appellts after committing murr of the deceased have set her dea ody on fire te prosecution has establisd beyond reasonale doubt tt appellant Jitendra Kuma knowing fully well that 'the decesed was murdered, in oder to creen himself n ter accuse persons rom legal unishment gave incorrec informatiOn to Prakash Ram Kumbhwani ove phne that Vandan cmitte suicide by elf immolation and al the acced ersons knowing fully well th l us p at she was murded in orr to screen hemselves gave false informaion hat she has committed suicide. ' S Surendra Sing eaed Senir vocate appearing on alf f e appellants submltted at from peru of te inquest proceelns 1 ev1dent that invesgaon was being conducted by Rajs Agrwa 1’ i ( 10) SDO(P) Iquest a prme 1n the presee o h arent a close relaivs, howev no mplaint regarin dowry demand hssment wa made at ha sage. They eft Kharah o 2 _ 2 O W made rt i’ 210202 1 hri h lrn o Ad beh o th th sal h dp, 1t s titl eh al PW n ws erfod nc f ei ps nd te er co dg or ara s tt t l igar n 3 lO— _ a: 1 2 and the allegations ere for the fis tmeon 9-—0 u c hr nder é h 11.. our r; t ca in ‘ gh jen hu o pon h bd b bt t u o u an d esed h 2 h d du u r l a t en vr n om u an de d b and h he b ha r , a r s ad oh i d f p t r o a omd s er de t t t u when; Prakash, Rajni and other relatives of the deceased met the SDO(P) and handed over a written complaint (EX.—P/3) and only thereafter statements of prosecution witnesses were recorded in which the ailegations regarding dowry demand and harassment were made. 'Though crime was reglstered on 26 10 2002 by Shrl Kailash Bajpal (PW 7) Vide EX P/5 under Sections 304 B and 498 A IPC however there lis nothlng on record to show that any Incrlmlnatlng ev1dence wa a collected against the appellants prior to 29-10—2002 regarding doww death‘ of the deceased The doctors performing autopsy were not able to ascertain the cause of death though they have stated that burn 1nJuries found on the body of the deceased were postmortem 1n natuu‘ There is unrebutted ev1dence adduced by the prosecution that the room where the dead body of the deceased was found was locked from inside and the same was broken after the incident by Horilal and Jitendra. Rajesh Agrawali who has effected the seizure from the spot on the next day of the incident, has also admitted that two doors had been broken to access to the body and the lock of one door was affixed from inside and he has also seized uprooted latch of the door lying on the ground from the spotr Rajesh Agrawal prepared the spot map of EX.:—P/ 10 in the presence of father of the deceased in which it is clearly stated that the door was locked from inside. In view 0f the inchntrovertible prosecution evidence, it is abundantly clear that the dedeased had locked herself inside the room and that conclusively prdves that she had committed suicide. l 13~.The: autopsy surgeon has admitted in his evidence that the postmortem buins and absence of soot, particles in trachea could'be due to the fact that the deceased died due to vagal inhibition because of fright and ev n expert examined by the defence has also given Similar ev1dence The autopsy surgeon is not certain as to the cause of death and had recommended to the 1.0. that further opinion be sought from the ‘ fo ensic expert, however,‘ no such opinion was sought. In these cirLumstances,‘ the finding of the trial Court that murder of the de :eased was committed and thereafter her dead body was set on fire is erroneous and when the case could be one of suicide instead of ' " 1" murder, benefit of doubtj would accrue to the appellants. It was inuumbent upon the prosecution to prove the presence of the appellants inside the house at the time of murder. There is evidence r‘\ i \V . ‘ \: s ‘ Ly available on record that the appellants resided in the double storied building in which 3 other families also resided. Not a single witness has deposed that the appellants were present inside the house at'or about the time of the incident. The evidence of Rajesh Agrawal that he lear‘ned during investigation that the appellants were inside the house is n‘ot only hearsay, but such evidence of eyewitnesses is hit by Section 162 of the Cr.P.C. and such evidence is inadmissible. In the absence of any evidence regarding the presence of the appellants inside the house at the time of murder, they could not be convicted under. Section 302 of the IIPC. 14.Appe‘1‘lafnt Jitendra, husband of the deceased, has pleaded in his defence that the. deceased was suffering from severe menstrual problem and she was thoroughly perturbed because of that. The above defence is established frem the. evidence of Rajni (PW~4) as also from the evidence of defenée witness Dr. Smt. Laxmi’and from the fact that during postmortem also sanitary pad was found by the autopsy Surgeon. 15. Referring to Modi’s Medical Jurisprudence, 23rd edition, it was argued that the cherry red colour of blood may change to brown under the influence of heat in the cases of death due to burn. injuries and thus, finding of brown coloured blood is consistent that the deceased, committed suicide. ‘ 6.0n the other hand, Shri U.N.S. Deo, learned Govt. Advocate appearing on behalf 0f the State argued that learned trial Court, after elaborately dealing with the evidenCe of PW-2 Prakash Rai, brother; PW-v3 S lochana and PW-4 Rajni Makhija, sister, has held their evidence c ear, consistent and natural. It has been held that the deceased died 1 '1 s unnatural circumstances in her matrimonial house within 7 years of her marriage and ill—treatment and cruelty towards her by the appellants for demand of dowry soon before her death is established. ”i ' The finding is based on proper appreciation of evidence available on x \ . asdcord and the same does not call for interference. There is no 0- ission and contradiction in the deposition of PW~3 and PW—4. The t ial Court, after elaborately considering the evidence of autopsy s rgeon Dr. RS. Parihar, who has noticed absence of carbon particles .in trachea, which is also confirmed from FSL report and further \ ‘ 1 ? con$idering that dark brown blood was found at the time of postmortem, held that the deceased was subjected to postmortem burn. Rajesh Agrawal (PW-10) has admitted in his evidence (para—44) that during investigation 'Ihe learned that the accused persons were present at the place of incident, as the shop of accused Jitendra was ‘ closed; as it was Tuesday and Gumasta Madam had come. He has t further deposed that the evidence in the charge sheet that the room was locked from inside is based on information given by accused Jitehdra and he did not find any breaking mark on the door. There is ample evidence available on reco‘rd to show that the deceased did not. commit suicide, she was murdered and thereafter her dead body was set oi‘t Fire and because of deep burn injuries, marks of injuries over the ' person was not found in the postmortem. i 17.We have heard learned counsel for the parties. We have perused the record as also the impugned judgment. 18.PW-2 Prakash Rai is the brother of the deceased. He had lodged written complaint of EX.-P/3 on 29th October 2002 against the accused persons. He has deposed that 4 years before his younger sister Laxmi was married with Jitendra, Son of Pratap Rai. Everything was, alright one to two years after the marriage. Thereafter they started torturing her for dowryi 3—4 months before the incident, Laxmi resided at Simga, However, maternal uncle of Jitendra persuaded her to accompany him. 2 days before the incident, LaXmi came to Simga and a day before the if'icident she went with Ram Kumbhwani to his sister’s house at Raipur from where appellant Jitendra took her with him. During her last Visit, she had told him that the accused persons harassed her for dowry and 5 she had also stated that it is the last opportunity, probably she will not. be returning back again. On 22nd October, 2002 Jitendra informed on phone that his sister has set herself on fire and died. 6—7 days after t e incident he went to Khairagarh with his uncle and gave written report of Ex.~P/3 to the SDO(P). In cross-examination, this witness has clearly stated that before giving a complaint of Ex.—P/3, he did not 3dge any complaint about the incident. He has also stated that he got the complaint (EX.—P/3) typed at Simga as per advise of one congress eader. He has further stated that his statement Was recorded only 7 ._a once after 6—7 days of the incident at Khairagarh in the office of $13003). 19.PW—3 Sulochana has deposed that she does not know as to whom the deceased was married She does not identify the accused persons however she has stated that whenever Laxrm Ba1 came to €1mga she used to complam that her 1n laws harassed her f01 money When Laxml Ba1 came to Slmga for the last tune, she d1d not Vlslt her house. ZQRajn‘i Makhija (PW—4) is the sister of the deceased. Her evidence is that Laxmi Bai went to Simga o‘n 20-2—2002. On 21—2-2002, she came back a to Raipur in her house and on the same evening at about 5.30, she went ‘w‘l‘th her husband Jitendra to Khairagarh. On 22-2-2002 lat. aboUt 8 pm Jitendra telephoned and informed her that Laxmi has. ’ committed suicide“ by self, immolation and called Prakash whereupon she went to Khairagarh with her parents, grandmother and husband. i They reached Khairagarh on 23—2—2002 at about 7 in the morning, al that time the police had already taken her dead body. She resided peacefully for one year in the matrimonial home, however, after one year of the marriage, her husband, father—in—law, mother—in~law started harassing her for dowry5 Her brother—in—law used to have verbal _ quarrel with her Her mOther-in—law used to say that people of her . parental home are beggars 3 In para 11 of her cross examination she has deposed that the de‘ceased gave blrth to a female chlld after one year of her marrlage. A month before her death, she had some menstrual problem. She had ‘ consulted the doctor and ‘she got partial relief, however, she was not completely cured. She has denied the suggestion that the deceased told her during her visit on 21—10—2002 that one doctor at Khairagarh had a vised removal of uterus by surgery and had apprehended that she might have cancer in uterus. In para—17 of her deposition, she has stated that her statement was recorded on the very next day of the incident and at that time, she made no complaints to the police and sh‘e has admitted her signatures in inquest report Ex.—-P/4. .PW-_7 Kailash Bajpai was posted as Town Inspector in the Khairagarh M police station. He registered the crime against the appellants vide Ex ~ 5 This Witness has admitted 1n cross examination that complaint of \ ) Ex P/3 was not before him till 26 10 2002 when the crime was '1‘ .,, \r k \ reglstered The statemente recorded during merg enquiry are not annexed With the charge sheet as it bears the Signatures of the witnesses. A11 the statements of Witnesses available 1n the charge uheet ~ were recorded on 29 10 2002 However he has denied the suggestion ' that Since there were no allegations against the accused persons 1n the g statements recorded during merg enquiry, the same are not included in 1 -.. the case iThe tr1al Court on the ba51s of ev1dence of Prakash Ra1 and Sulochana Bal, has held that Rajesh Bhavnani 1s brother 1n law, Prataprai 1s father 1n law and Pushpa Dev1 is mother in law 0t the deceased Relying upon the eVidence of Prakash Rai, Sulochana and RaJIn . 24. Makhija, it‘has‘been held that the appellants harassed and treated the i deceased with cruelty for demand of dowry since 4 years before 22—10~ ‘ i 2002. ‘ a ‘ ' Inquest of EX.—P/4 was prepared on 23—10-2002 in the presence of a I i ' Arjun Das, father of the deceased and Raj Kumar, maternal uncle‘ of I ” the deceased and inquest bears the signature of father and sister of the deceased Rajni has also deposed that her statement was recorded by the police on the very next day of the inCident and she did not make any complaint against anyone at that time The crime was registered i on 26 10 2002 by Kailash Bajpai on the baSis 0t merg enquiiy, however statements recorded during merg enquiry have not bee produced along With charge sheet Oi during tiial for perusal of the i l Court. PW—2 Prakashrai in para-3 of his deposition has stated that the ' ’ Ii. deceased came to his house 3 days before the incident, at that time, ' i she told him that the accused persons continue to harass her for dowry and money.» She also said that probably it is her last Visit and she would not be returning again and only 2 days thereafter she died due 1 to burn injuries. The above Version is missing in the written report of ' EX.-P/3 lodged by him. If the above version of this witness is true’, inf that case, he would have definitely disclosed this fact to the police at the first instance immediately. after the incident when he went tQ Khairagarh on hearing thenews of death of his sister. On the contrary, Rajni Makhija, sister of the deceased, who met the deceased on 215" t { October, 2002 i.e. .a day before the incident, has stated on oath that :. '. 23 x a shelreached Khairagarh With her parents on 23-10—2002, she has sign‘ed the inquest report énd her statement was recorded by the police and-at that time she did not complain against anyone. 2F:-.The1crirne was registered on report of Kailash Bajpai, Town Inspector of Khalragarh Police Station on the ba31s of merg enquiry Howevm statements recorded during merg enquiry are not available on recoid nor the same were produced for perusal of th1s Court. In these circumstances we find force in the argument of .the defence that statements of near relatlves recorded durlng merg enqulry have bee dehberately suppressed as 1t does not contain any allegations against the appellants. 26. From the evide‘nce available on record, we find that the deceased ‘ visited her parents 2 days before the incident on 20111 October, 2002. After hearing the °death news of their daughter, the parents went to Khairagarh along with Rajni and her husband, Arjun Das, father of the deceased, is signatory of inquest report, however, the prosecution has not examined the parents of the'deceased, who would have been important witnesses to establish the allegations of the prosecution that the deceased was harassed by her husband and other accused persons for dowry and she used to complain about the same in her parental home In these e1rcumstances, an adverse inference may be diawn against the prosecution for non examinatlon of the parents of the deceased. i Omnibus allegations have been made by Prakashrai Sulochana and 1 ‘ all" Rajni MakhiJa and no speCific allegation has been made against any particular accused about demand of any particular dowry Prakashrai nd Rajni Makhija have deposed that every thing was alright till 1~2 year after the marriage. The behaviour in the matrimonial home of her I usband and in-laws was alright and harassment started only: t ereafter. 10 2H? n close examination of the evidence of the above witnesses, we are of the opinion that the finding of the trial Court that the deceased was continuously harassed and treated with cruelty by the appellants for owry since 4 years before the date of the incident is based on ’proper appreciation of evidence available on record and we are of the n > 11 View that the prosecution: has failed to prove that the deceased was hafassed and subjected :to cruelty soon befcre her death by the appellants ) Learned trial Court has held that Laxmi Bai @ Vandana was murdered? 1n her matnmonlal home and thereafter her dead body was set on flre The appellants were res1d1ng 1n the same house at the tlme of the ‘ rinc1dent and