3‘ CHHATTISGARH AT BILASPUR Criminal Appeal 1‘30. 49/2004 »r x (Appeal undér section 374(2} of Code of Criminal Procedure, 1973) (SB: Hon’bte Mr. T.P.Sharma, J.) Present: Shri Prafuii Bharat, Advocate for the appeHamte Shri Shushil Dubey, G‘AJAPP for the $tate/respondent Shri MK. Bhaduri, Advocate forthe ob§ector. QRAL JUDGMEET (Passed on O5i G8; 2008; 1r This petition is directed agaixmt the judgment of conviction aod order of sentence dated 2/1/2004: passai by First Additional SessiorLs Eudge, Raipur m Session Trial No. 291/03, whereby learned First Additional Sessions Judge after hoidjng the appeilams guilty for the offence punishable ulider Sections 304—3 and 498-A of Indian Penal Code convicted and sentenced the apyeilants rigorous imprisonment for 16 years, rigorous imprisomnent 1 years arid fme of Rs. 500/— in default of payment of fine, additional RI. for 3 months each accused. 2. Iudgment is chaHenged on the ground that without any iota of evidence relating to demand of dowry soon before the death of deceased AP?ELLANTS Mardsh Kamdar, aged about 23 years, S/o Harish Kamdar. Harish Kamdan aged about 67 years, S/ 0 Kewalchaad Kamtiar. Smt. Rekha Kamdar, aged about 59 years W/ o Ham'sh Kamdar, Pankaj Kamdar, agad &bou‘i 27 years, S]o Hamish Kamdar. All are residents of Ward No. 2, Gariyaband, Shiv Chowk, Seva Sadarr, ‘fGan'yaband, District Raipur (Chhattisgarh) . VERSUS - merefwmr State of Cbhattisgarh through the District Magistrate, Raiyur (Chhattisgarh). Deepa Kamdar trial Court has canvicted and sentenced the appeHants aforementicmed. 3. Ski PxafuH Bharat, Advocate for the appellants, Shri 8111151111 Dubey, G.A./APP for the State/respendent and Shri M.I<. Bhaduxi, Advocate for the objector are heard. 4. }udgment impugned and record of trial Court perused. 5. Prosecution case mPIief is, deceased Deepa Kamdar was married with appellant N0. 4, Pankaj Kamdar 1'11 the year 2000. Appellalit No. 1 is the brother-m-law, appeHant No. 2 is the father—m-law, appeHant No. 3 is I, 3 the mother—in~1aw and appellant No. 4 1's the husband of the-deceased Deepa Kamdar. After marriage she was subjected to cruelty by the appeHants on the ground of demand of dowry and she Was compelled to leave her matn‘mom‘al house. She Went to her maternal house andetayed for long time. After intervention by the members of their communityin the month of $eptember—2002 appellant took her in their house in December~ 2002. She lives in the house of appellants from December—2002 to May-2003. On 22/ 5/ 2003 She burnt herself by pouring kerosene oil. She burnt up to 50 degree. Appellant took her hospital Where she was treated by doctor and lastly she succumbed irq‘ury on 30/5/2003, while she was in hospital for treatment police tried to record her dying declaration but could not succeeded. The application is Ex. P-ll. ' 6. Doctor intimated the police relating to incident Vide Ex. P<9. lust after incident burnt piece of Sari, blaouse, Fetticoat and Jari cane containing 3 odour of kerosene seized on 23/5/2003 from the spot Vide Ex.P-5. Spot map was prepared Vide Ex.I’—6. After the death of Deepa Kamdar. Intimation regarding the death of deceased Deepa Kaindar was sent by the doctor Vide EXP-7. Marg intimation recorded, after smnming the Witnesses. Inquest ;r ‘ over the dead kody of the deceased waS prepared Vide EX. P-2. Dead Body of Deepa Kamdax sent for autopsy to the District Hospital Durg. Autopsy was conducted by a team of doctors namely, Dr. A. K. Soni and Dr. P. EaHdshore. They conducted autopsy vide Ex. P-8 and found burn mphy over the body of the deceased. Cause of death was due to shock as a. result of buxn injury and its complication. Injury was ante mortem in nature. FIR was lodged on 3/6/2003 yide Ex. P-3. Letter Ex. D-2 mitten by the 4‘; deceased was seized Vide Ex. P—12. List of articles given at the h'me of marriage was seized vide Ex. P—11. Property given at the time of marriage were seized Vide Ex. P—8. After recording the statements of witnesses under a Section 161 of the Code of Criminal Procedure, 1973 and after completion of investigation, chargesheet was died before the Iudiciai Magisiz‘ate, First Class, Gariyaband who in tern committed the case to the Court of Sessions. Case was made over to the Additional Sessions Judge who has tried the CaSe. F /. In order to prove the guilt of the appellants prosecution examined as many as 10 witnesses. Statements of the appellants recorded under Section 313 of the Cr.P.C., 1973 where they denied the circumstances appearing against them and pleaded innocence and false implication. The appellant examined Dr. Abdul Basim (DW—l) and Head Constable Dhanesh Shanna (DWZ) as defence Witnesses. Dr. Abdul Basim has stated in his evidence that he has examined the deceased just after the incident and intimated to the police Vide Ex.P—9. DW2 Head Constable Dhanesh Sharma has stated that he has prepared the map Ex. P—6 and seizure memo Ex. P—5 on the direction of Station lncharge IS. Rangbi, but he has not mentioned in Ex. P- 6 relating to the lari cane but jari cane has been seized vide Ex. P—5. 8. It is argued on behalf of the appellants that prosecutkm has not adduced any evidence to comect the appellants with the crime 1'11 question. There is no demahd of dowry soon before the death of Deepa Kamdar who is the Wife of Eankaj Kamdar. 811E herself had left her matrimonial house for long time Without any reasonable cause and went to her parental house where she stayed for long time. She wrote a letter Exl D—2 to appellant No.4 w‘meh ' shows that she wants to live separately from her matrimonial house along with her husband. This is a case of accident by cooldng gas and not a ca‘se of suicide by burn. The appellants have not conrmitted any offence 3 punishalile under Sections 498-A and 304—3 of the Indian Penal Code. 9. of Hira Lal and others v. State (Govt. of NCT.), Delhil in which it has held by the Apex Court that word “soon before” occur in Section 304B of the Indian Penal Code would normally imply tlmt the interval should not be much between the cruelty and or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on demand of dowry and the death concerned. Para 9 as folloWs:— ;a Learned counsel for the appellants has placed reliance in the matter “A conjoint reading of Section 113 ~B of the Evidence Act and Section 304-3 of IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. "ihe prosecution has to rule out the possibility of a natural or accidental death so as to bring it circumstances. The expression soon before is Very relevant Where Section 113-3 of the Evidence Act and Section 304 B IPC are pressed into service. The 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 the prosecution. ”Soon before is a relative term and it Would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate anV fixed ‘ (2003) 8 SCC 80 I 10. period, and that brings n the importance of a proximity test both for the proof an o£fence of dowry death as weH as for raising a presumption under Section 113-3 of the Evidence Act . The expression Soon before her death used m the substantive section 304:3 IPC and Section 113-3 of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression soon beforeris not defined. A reference to the expression soon 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 possession of goods. Soon after the theft. is either the thief or has received the goods knowing them to be stolen/ unless he‘ can account for their possession. The determination of the period which can come within the term soon 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 i imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. It the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be‘ of no consequence. Learned counsel for the appellant has further placed reliance in the matter of State of Himachal Pradesh v. Nikku Ram and othersz in which it has held that in absence of any demand of dowry appellant cannot be convicted under Section 304B of the Indian Penal Code. 11. On the other hand, the impugned judgment is supported on behalf of the State/respondent and objector. Learned counsel for the State/ respondent argued that the prosecution has proved its case beyond all reasonable doubts by adducing reliable evidence of demand of dowry and cruelty by the statements of PVV-l Mukesh and PIN-5 Prakash Kumar who are brothers of the deceased, which is sufficient to infer that the appellants who are husband & relatives of the husband of deceased Deepa Kamdar i have committed cruelty upon the deceased on the ground of demand of dowry and caused her abnormal death. 2 AIR 1996 SC 6'7 ,4‘ 12. Counsel for the respondent has placed reliance in the matter of Satbir Singh and athers v. State af Harvana3 in which it has held that when it is estabJished by the prosecution that deceased was subjected to cruelty in connection with the demand. of dowry then to rebut the preemption under Section 113—B of the Evidence Act onus is on defence. 13. Counsei for the State/respondent has further placed reliance in the matter of Kamesh Paniigar alias Kamlesh Paniiyar v. State of Bihar" in which it has held that evidence of Witiiess relating to the demand of dowry, ill treatment of deceased shortly before the date of occurrence is sufficiene to establish the charge of Section 304$ of Indian Penal Code. 14. In the present case it is not disputed that Deepa Kamdai' wagithe wife of appellant No.4, daughter 1'11 law of appellants No.2 & 4 and sister ht law of appellant No. 1., who was mat'i‘iecf‘with appellant No. 4 in the year 2000 and died in abnormal circumstances as a result of burn injury received on 22/572003. 15. Abnormal death as a result of burn injury is not disputed by the appellants, but itis argued on behalf the appellants that she died as a result of cooking gas accident. In this connection, the prosecution has adduced documentary evidence of seizure of burnt piece containing odour of kerosene vide Ex.P~5 and the same has been supported by defence witness (DW2) Dhanesh Shanna. Defence has not been able to elicit anything to show that the deceased received injury as a result of cooking gas accident or there any accident of cooking gas, bursting of cooking gas cylinder, any damage by fire. In absence of any prime facie material relating to cooking gas accident. EXP-6 seized, ocular evidence of (DW2) Dhanesh Shanna, W 3 2005 AIR scw 4735 4 2005 AIR scw 770 Head Constable & PW—é LS. Rangi are sufficient to estabhsh that deceased Deepa Kamdar died as a result of Kerosene burn injuxy and not as a result of cooking gas accident. 16. In order to establish the offence of dowry death against the appeuants the prosecution is required. to adduce evidence relating to demand of dowry soon before the death of Deepa Kamdar. PW-1 Mukesh & PW5 Prakash Kunmr, ,both are brothers of the deceased had stated that her sister was married with appellant No. 4. They came to know on 22/5/2003 that Deepa Kamdar received injury by burn and she is admitted~ in Medical College Hospital, Raipur, they went there, at that time of she was at burn unit. PW-l Mukesh has stated that when he reached to hospital he was stopped by the appellants After taking permission from the doctor, he and his mother met deceased Deepa Kamdar. She burnt extensively. She was under fear. She started weeping and said save her. He has also's-‘tated that after marriage of Deepa Kamdai‘ when she came second time in her parents house she told him that she is not happy in her in—laws house their behavior is not good. They used to torture her and appellant No.4 Pankaj Kamdar used to threat'that he will desert her. The appellants also used to say that she has not brought expected dowry. PW-l Muhesh has also stated that on the basis of the ill treatment gven by the appellants to the deceased, they had not sent his sister to the appellants’ house for l 1/2 years and after intervention by the members of the communiW and after assurance by the appellants that they will not torture his sister, they sent deceased Deepa Kamdar to the appellants’ house in the month of December 2002. 17. PVV5 Prakash Kumar, brother of the deceased, has also stated that the appellants used to harass his sister Deepa Kamdar, on one occasion Q 3/. appeHant N04 Pankaj Kamdar asked him Whether he has brought same money. He has also stated that as a result of harassment she leaved hex matrimonial home and she stayed for long time in her parental home. She also to1d him that the appellants used to harass and used to beat her 0n the ground that she has not brought expected dowry. He has also stated that they had not taken ally action with a View to save the matrimonial life of his sister. 18. ExD-Z is a letter dated 8/6/2001 which was written by deeeased Deepa Kamdar, its genuines has not disputed. by prosecution and defence,- wherein she has specifically written to her husband Pankaj Kamdar that she is not happy with the behavior of appellant No. 4 Pankaj Kamdar, she feels herself insecure with Pankaj Kamdar, his regular behavior is not reasonable. Contents of the said letter show that appellant No. 4 Panl<aj Kamdar used to harass her by his ill behavior, but nothing has been written in Ex.D-2,"’ which shows that the appellants have ever demanded dowry. She has specifically written in Ex.D-2 that if appellant No. 4 l’ankaj Kaindar continues his ill behavior, then she may end her life. Deceased Deepa Kamdar died within 3 years of her' marriage in abnormal condition as a result of burn injury. 19. In order to establish the Charge of dowry death punishable under Section 304 B of the IPC, the prosecution is required to establish the evidence that the appellants, who are husband & relatives of the husband of the deceased, used to torture the deceased in connection with demand of dowry soon before her death. lf the prosecution succeeds to establish the aforementioned facts, then it may be presumed under Section 113—3 of the Evidence Act that the appellants have committed dowry death of Deepa Kamdar. e r ;w ) 20. In the instant case nothing has been Written in Ex.D-2 regarding demand of dowry especially when deceased Deepa Kamdar has dare to write to appellant No.4 who was her husband as best friend specially writing that herrhas 10st his right to claim that he is a husband of deceased. PWI Mukesh & PVV5 Prakash Kumai‘ who axe bzothers of the deceased had given omnibus bailed statements relating to demand of dowry. The appellants used to harass‘khe deceased on the gtound that she has not brought expected dowry but they had not stated anything that what was exbected and still what they want? In absence of the definite statement relating tg the demand of dowry it is difficult to hold that deceased was harassed by the appellants in connection with demand of dowry. Circumstances shown by the prosecution and not specifically denied by the defence shows that deceased Deepa Kamdar has conunitted suicide by poming kerosene oil on her body and set fire on her. If her act of committing suicide is seen in the light of the statements of her brothers FWI Mukesh & PW5 Prakash, and letter Ex.D—2 written by her to appellant No. 4 Pankaj Kamdar it reveals that she has committed suicide as a result of regular harassment by her husband Pankaj Kamdar which compelled her to end her life. It is not disputed that deceased Deepa Kamdar died within 3 years of her marriage and out of 3 years of her married life she had not lived with her husband and with her in laws for 1 1/2 years i.e. half of the period of her marital life and only after intervention by the members of their community she came to the house of the appellants in the month of December 2002 and within 5 months she ended her life. 21. It is difficult for a married woman to leave her matrimonial home without any sufficient and compelling reasons. It is also difficult for a married woman to live separately from her husband and lead her life to [a save her from any harassment by her huSband or relatives of the husband. Circmnstantial evidence adduced by the prosecution is sufficient to draw the inference that deceased Deepa Kamdar was harassed and tortured l regularly by her husband Pankaj Kamdar, and as a result of regular harassment no option was left to her except to commit suicide. It clearly shows that appellant No. 4 Pankaj Kamdar has instigated and abated her wife Deepa Kamdar to commit suicide and committed cruelty on her. 22. The prosecution has not adduced any reliable and clinching evidence s of demand of dowry against the appellants, but the prosecution has »r adduced credible evidence against appellant No.4 Pankaj Kamdar for 3 instigation and abatement of commission of suicide by deceased Deepa Kamdar and commission of cruelty against her. In the absence of any substantial evidence of demand of dowry and commission of cruelty against the appellants, the conviction and sentence against the appellants for the offence punishable under Section 304 B of the Indian Penal Code is not sustainable. 23. Prosecution has established the facts that appellant No.4 Pankaj Kamdar has tortured her wife deceased Deepa Kamdar and committed cruelty against her and as ‘a result of which she committed suicide. His acts squarely false the act of abetment to commit suicide and cruelty punishable under Sections 306 & 498-A of the Indian Penal Code. Originally, charge of Section 306 of the lndian Penal Code has also been framed against appellant No. 4 Pankaj Kamdar, but he was acquitted of the said charge, by the trial Court. There is sufhcient material to convict appellant No.4 for the offence punishable under Sections 306 and 498A of the Indian Penal Code. 24. As held in case of Hira Lal (supra)2 that even in absence of charge of Section 306 of the IPC the person may be convicted and sentenced under H Section 306 of the IPC in case of charge of Section 304 B of the IPC. Paras 15 and 16 of the judgment in the matter of Hira Lal (supra) are as follows:- 15.It may be noted that fhaugh n0 charge was framed under Section 306 IPC, that is incomsequenfial in view ofzdhat has been stated by a three-judge Bench of this Caart in K. Prema S. Rao v. Yadla Srinivasa Rae, 16. On the facts 0f the case even though it is difhcalt t0 sustain the conviction under Section 304—3 IPC there are ‘i i sufficient materials to convict the accused appellants in temzs of Section 306 IPC along with Section 498—A IPC. 25. Learned Additional‘Sessions Judge has not considered the question of demand of dowry, commission of cruelty against appellants No. 1 to 3 and thereby committed illegality by convicting the appellants for the 3 offence partisliable under Section 304B of the IPC and also appellants No.1 to 3 for offence punishable under Section 498-A of the IPC. 26. Consequently, the appeal is partly allowed. Conviction and sentence of appellants No.1 to 3 namely, Manish Kamdar, Haris‘n Kamclar and Smt. Rekha lQmdar under Sections 304B and 498A of Indian Penal Code are set aside. They are acquitted of the aforementioned charges. Appellant No.4 Pankaj Kamdar is acquitted of the charge of Section 3043 of the Indian Penal Code, instead thereof he is convicted under Section 306 of the Indian PenalCode (for lesser offence included in the offence of Section 304 of the Indian Penal Code) and sentenced to rigorous iJnprisomnent for 5 years. His conviction and sentence under Section 498-A of the Indian Penal Code are maintained. Appellant No.1 is in custody, he be released forthwith if not required in any other case. 27. Possession of the seized articles shall continue with the objectors/ brothers of the deceased. »r Sdl- ’ T. P. Sharma Judge "