IN THE HIGH GOORT OB' .TVOICATURE AT BILASPURCCHHATTISGARM) CRIMINAL APPE&li SO.. l6i^~-QV 20Q3 ' ''; '' &PPELI.ANTS ••(Tn"tra&15" 1. sm.t. Kejabai., wi£e of Jagat Pal sahu aged about 55 yeaEs.. /'• .\\v\:". .^•""\" ' ^d0"""^^- ..-:••••- ..-r^'^ ... ^ Sh"--^ ,f 2. Jagatpal, son of Bisaharam sabu, aged aboat 60 years. . .• 3. C.buna,llal sal»u,'son ef Jagatpal Saha aged aboufe. 30 years* . ^U-Batdi are residents of V-tllage-Darba, fl ^~^\w t.W B^SPGNOENT f>dM*cal ^il^a s s Police station Abiaanpurt Oistt.i.ce 'Ra-Lpyx: ,(C»e»). '^A State of Chiaattisgarh, through Dlstrict Wagla.ferate,,. .8:aA£>ttE> B.tS[fer4,et-BaJ.E>urt<C»'0.>., ^ ,.- MEMORANDUM QF CRIHI.NAL APPEAL UNDER SBSTION 374( 2) 0r Gr.P.C. :Qiru-l;c"ivEaM- HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. hflr. Justice Pritinker Diwaker) * Criminal Appeal No. 162 of 2003 APPELLANTS Smt. Kejabai and others VERSUS RESPONDENT State of Chhattisgarh ^? hbi Smt. Indira Tripathi counsel for the appellants. Shri Pravin Das Dy. GA for the respondenVState. CRIIVIINAL APPEAL UNDER SECTION 374 (2)OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (11.02.2011) This appeal is d;rected against the judgment and order dated 30.1.2003 passed by the Additional Sessions Judge, Raipur in Sessions Trial No. 386/2000 convicting the accused/appellants under Sections 498-A and 304-B IPC and sentencing each of them to undergo rigorous imprisonment for two years with fine of Rs. 1,000 u/s 498-A and rigorous imprisonment for ten years with fine of Rs. 5000 u/s 304-B IPC, plus default stipulations. 2. Case ofthe prosecution in brief is that on 14.10.1999 at about 9.30 p.m. deceased Nandini ended her life by consuming some poisonous substance in her matrimonial house. Merg intimation Ex. P-7 was given by Shyam Lal Pathak (PW-7) - the ward boy of Mekahara hospital, Raipur on that day itself on the basis of which FIR Ex. P-8 was registered on 2.11.1999 under sections 498-A and 306 IPC. After completion of investigation challan was filed on 23.2.2000 under Sections 498-A and 306 IPC. However, the charge was framed by the trial Court under Sections 498-A, 306 and 304-B IPC. 3. So as to hold the accused/appellants guilty, prosecution has examined as many as 13 witnesses in support of its case. Statements of the accused/appellants were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart, one Manrakhan (DW-1) has also been examined by the defence in support of its case. 4. After hearing the parties the trial Court has acquitted the accused/appellants of the charge under section 306 but convicted and sentenced them as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the accused/appellants submits that there is no concrete evidence available on record with respect to the correct date of marriage of the deceased with accused/appellant No.3 herein. She submits that very inconsistent statements have been made by the witnesses from which it appears that marriage of the deceased with appellant No.3 herein was solemnized 7-8 years prior to the date of incident and in these circumstances the offence under Section 304-B IPC is not made out against the accused/appellants. She submits that there are material contradictions in the statements of Sadaram (PW-1), Smt. Pramila Bai (PW-2), Smt. Chanda Bai (PW-3), Kriparam (PW-4), Smt. Phulmati Bai (PW-6) and Smt. Dularin Bai (PW-7) if compared to theirstatements recorded under Section 161 of the Code of Criminal Procedure. She submits that present appears to be a case where the witnesses appear to have exaggerated their version out of the anger originating from unfortunate death of the deceased. She submits that the incident had taken place on 14.10.1999 whereas for the first time the witnesses have deposed against the accused/appellants on 2.11.1999. She submits that Itwari (PW-9) has not supported the case ofthe prosecution. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the deceased was subjected to cruelty at the hands of the accused/appellants to such an extent that she was left with no other option but to commit suicide. According to him, minor contradictions in the statements of the witnesses have to be ignored when they have made specific allegations on material particulars. He submits that there was demand of Rs. 2,00,000 from the accused/appellants for purchasing a jeep and that as deceased died within seven years of marriage, their conviction under Section 304-B IPC is fully justified. According to him, independent witnesses namely Smt. Phulmati Bai and Dularin Bai (PW-6 and PW-7 respectively) have duly supported the case of the prosecution and therefore also the judgment under challenge is just and proper. 8. Appellant No.1 namely Smt. Kejabai, appellant No.2 namely Jagatpal and appellant No.3 namely Chunnilal Sahu are the mother- in-law, father-in-law and husband of the deceased respectively. Sadaram (PW-1) - the father of the deceased has stated in his evidence that marriage of the deceased with accused/appellant Chunnilal was solemnized in the year 1993 and that she died on 14.10.1999. According to him, on the second day of the incident accused/appellant Chunnilal alongwith two other persons had come to his house and informed about the death of the deceased due to consumption of poison and thereafter he went to Mekahara hospital and saw the dead body of his daughter. According to this witness, when about a month prior to the date of incident he had brought his daughter to his house on the occasion of Tija festival, she had informed him that accused/appellant No.3 used to beat her whereas accused/appellants 1 and 2 used to abuse her. According to this witness, the accused/appellants also used to demand Rs. 2,00,000 for purchasing a jeep. This witness has stated that the accused/appellants had asked his daughter to get back to the matrimonial house with the money asked for, otherwise not. According to him, 8-10 days after the Tija festival he had sent back his daughter with his elder brother making her understand about his inability to pay the money so demanded and then 10-12 days (hereafter he got the news of her death. In cross examination this witness has stated that the accused/appellants used to harass the deceased since very beginning of the marriage. He however has admitted that in this connection he had not called any meeting nor made a complaint in the society or the poiice because his daughter (the deceased) had not permitted him for the same. This witness had not even asked the accused/appellants as to why they were .<» f "'x ^ ^ .,')<•' ,/"-^"-, f' ft '~)~^ ' -ii. demanding dowry. He has stated that at the time of marriage of the deceased, the accused/appellants were having 25 acres of land and thereafter they had purchased the tractor also. This witness has admitted that all the three sons of the deceased were born in her matrimonial house and expenses thereof were also borne by the accused/appellants. According to this witness, he had informed the police about the accused/appellants harassing the deceased but if the same is not mentioned in the diary statement, he could not tell the reason for that. He has stated that the marriage of the deceased was solemnized with the accused/appellant No.3 Chunnilal eight years there-before. Smt. Pramila Bai (PW-2) - mother of the deceased has stated that marriage of the deceased was solemnized with the accused/appellant No.3 Chunnilal seven years prior thereto. She has stated that about one month before the date of incident, her husband had brought the deceased to her house along with her child leaving other two children with the accused/appellants. During her 7 days stay in her house, the deceased had told this witness weeping that the accused/appellants had asked her to get back to them with Rs. 2,00,000 for purchasing the jeep otherwise not. When this witness expressed her inability to pari: with the amount demanded and told the deceased to stay with her, she did not agree to that as she had left her two children with the accused/appellants. Then, 8- 10 days thereafter, according to this witness, her brother-in-law had taken the deceased to her matrimonial house. She has stated that after about 20 days accused/appellant Chunnilal and his brother came to her house and informed that the deceased was admitted in Mekahara hospital as she was not keeping well. Subsequently, her husband went to Mekahara hospital and on return there-from he told her that the aecused/appellants had killed the deceased by administering poison. According to this witness, whenever the deceased visited her, she used to tell that the accused/appellants were harassing her for demand of dowry. This witness however admits that she did no disclose to anyone about the demand of money by the accused/appellants nor did she ask her husband to make a complaint regarding the same in the society. There appear ''^ -^~— to be certain contradictions in the evidence of this witness in respect of disclosing to the police about the two children of the deceased not being brought with her apart from certain other facts. This witness has admitted that accused/appellants are having 20-25 acres of land and a tractor and that accused/appellant No.2 was in government job. Smt. Chanda Bai (PW-3) - the sister-in-law of the deceased has stated that her marriage and that of the deceased had taken place in the year 1993. According to her, during summer season when the deceased had visited her house, she had informed that accused/appellant No.3 (husband) used to beat her for demand of dowry and other accused/appellants used to quarrel with her. According to her, there was a scar on the back of the deceased which was as a result of her being cauterized by accused/appellant No.3 herein with hot tongs. In cross examination this witness has stated that on the eve of Tija festival when the deceased had visited her house, she did not meet her as she had gone to her maternal house. From paragraph 4 of her cross examination minor contradictions appear to be present there if compared with her case diary statement. Kriparam (PW-4) - the uncle of the deceased has stated that marriage of the deceased was solemnized with accused/appellant No.3 herein about 7-8 years prior thereto and that on the date of incident he was informed by accused/appellant No.3 and his brother that deceased being seriously ill was admitted in the hospital and when he had gone to the hospital he saw the dead body of the deceased. According to this witness, on the occasion of Tija festival when the deceased had visited his house, she was weeping and on being asked she informed him that the accused/appellants were demanding 1% -2 lakhs of rupees for purchasing a vehicle and were harassing her also. According to him, in the event of there being any dispute, effort was made by them to resolve the same in the society but as regards this matter no complaint was made to the Panchayat. In paragraphs 7 and 8 of his deposition, there appear to be some minor contradictions if compared to the case diary statement. -<o- Chintaram Soni (PW-5) is the Patwari and witness of Ex. P-3 which was given on the basis of land records. Smt. Phulmati Bai (PW-6) is the neighbour of Sadaram (PW-1) - the father of the deceased. She has stated that about 15-20 days before the date of incident, deceased had visited her parents on the occasion of Tija festival and stayed there for few days and during this period she had informed her about the cruelty being meted out to her by the accused/appellants for demand of dowry. Deceased is also said to have shown to this witness the scar on her back as a result of cauterization by the accused/appellant No.3 with hot tongs. According to this witness, the deceased had also disclosed to her the demand of Rs. 2,00,000 being made by the accused persons for purchasing the vehicle. In respect of date of marriage of the deceased, she has stated that it was solemnized 7-8 years back therefrom. In paragraph 6 of her evidence there appear to be some minor contradictions if compared to her case diary statement. Smt. Dularin Bai (PW-7) has made almost similar allegations as made by Phulmati (PW-6). She has not stated anything about the date of marriage of the deceased with accused/appellant No.3. Dr. Ullhas Gonnade (PW-8) is the witness who had conducted post mortem on the body of the deceased and given his report Ex. P-4 according to which the death was caused due to asphyxia as a result of poisoning. Itwari (PW-9) has stated that marriage of the deceased was solemnized with accused/appellant No.3 7-8 years back thereto but he was not aware as to how the deceased died. According to this witness, he never heard of any dispute between the deceased and the accused/appellants and that he was residing near their house. Later on, this witness has been declared hostile. Sub Inspector namelyNirbhay Singh (PW-10) is the witness who has done part of the investigation. Bhagwan Das (PW-11) - the neighbour of the accused/appellants has not made any allegation against any ofthe accused/appellants. ASI - R.S. Sahu (PW-12) is the witness who had participated in the investigation. Akhilesh Jha (PW-13) - Additional S.P. is the investigating officer who has supported the case ofthe prosecution. ;ll.:! .fc asiA.s rif i Wfe.A. lls 7- 9. Minute examination of the evidence of the witnesses makes it very clear that there is no cogent and legally admissible evidence on record to establish the exact date of marriage of the deceased with the accused/appellant No. 3. On the contrary the witnesses have stated that the marriage of the deceased was solemnized with the accused/appellant No. 3 about 7-8 years back. Thus the basic ingredients for convicting a person under. section 304-6 /PC that death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of marhage and it is shown that soon before her death she was subjected to cruelty orharassment by her husband or any relative of her husband in connection with demand of dowry are totally amiss in this case. Considehng all these aspects of the case in respect of the date of marhage, it is difficult to say that the marhage of the deceased was solemnized with the appellant No. 3 within seven years ofherdeath. More so, there is no concrete evidence on record to show that soon before death the deceased was subjected to cruelty or harassment by the appellants and, therefore, it will not be safe for this Court to convict the accused/appellants under Section 304-B of the Indian Penal Code and therefore, they are acquitted of the said charge. However, in respect of offence under Section 498- A IPC, there is ample evidence on record to show that the deceased was subjected to cruelty as defined under Section 498-A IPC and, therefore, their conviction under Section 498-A IPC is maintained. However, the conviction under Section 304-B IPC is set aside. Accused/appellants are acquitted of the said charge. 10. As regards sentence, looking to the peculiar facts and circumstances of the case and that the incident had taken place in the year 1999, this Court is of the considered opinion that it would be in the interest ofjustice ifthe sentence imposed on him is reduced to imprisonment for six months instead of 2 years as has been done by the Court below. Order accordingly. _____ r~ SAL 11. Appeal is thus partly allowed. \ pritinker Diwaker