HISH COURT OF CHHAmS^RH_^BlLASPUR APPELLANTS: RESPONDENT: APPELLANT: RE5PONDENT: Criminai ADDeal No. 1246 of 2002 Ramia! and another Versus State of ChhGttisgarh AND Crimincl ApDeaS No. 152 of 2003 Dharam Lal Versus 5tate of Chhattisaarh Post for prorsouRcsmeRt of .ludoTisRt on 8 Ssstsmbsr, 2008 Sd/- T.P.Sharma Judge •"••"^"f'^'^>../L ^^ 'y ..• < c ^•^ '^ HI6H COURT OF CHHATnS^RH. B1LA5PUFI APPELLANTS/: Accused (In Jaii) RESPONDENT: APPELLANT/: ^ccused (In Jaii) RE5PONDENT: CrjwjnQJAsil?8<?J No, 1246 of 2002 1. Rambl, S/o Buthu Ratre, aged about 3.8 years, 2. Neera Boi, W/o Rambi Ratre, aged about 32 years, Both R/o Viilage Kdra, P.5. Kasdol, Distt.Raipur (<:.(?.) Versus State of Chhattisgarh, Thana - P.S. Kasdoi, Distt.- Kaipur. ,AND CrimlnGi Asoeal No.l§2 @f 2003 Dharam Lal, S/o AAanijar Ratre, aged 24 yecrs, R/o viiiage Kaira, P.S. Kasdoi, Djstt. Roipur ((;.<$.) Versus State of Chhattisqarh, Thana—P.5. Kasdol, DJstt. Raipur.. (Criminai appeais under Sectlon 374 (2) of the Code of Cnminal Procedure, 1973) Present: Mr. Hanuman Prasad Aorawal, counset for the qapeiiGnts. Mr< Ravindra Agrawal, Pane! Lawyer for the State/respondent, SinQle^Bench: Hon'bl®Mr. T.P, ShGrma. J JUD6MENT (Deilvered on 8th September, 2008) 1. Cr.A.No.1246/2002 fiJed by Ramiaj & Neera Bai and Cr.A.No.152/2003 fiied by Dharam Lal have been preferred against the common Judgment dated 15-11-2002 pas-sed by the 1st Additlons! Sessions Judge, BoJoda ^- Bazaar, in Sessions Trial No,237/2002, therefore, they are being disposed of by this common judgment, 2, These appeais are directed a9ainst the judQment of convictlon and order of sentence dated 15-11-2002 by the 1st Additlonai Sessions Judge, Saloda Bazaar in Sessions Triai No.237/2002, whereby ieamed Additlonal Sessions Judge after hoiding the accused/appeliants guiity for commissjon of offence under-Section 304-B of fhe I.P.C., sentenced each of them to undergo rigorous Imprisonment for ten years. 3. I have heard learned counsei for fhe parties cnd perused the impugned Judgment as also the record of the tria! Court. 4. Case of the prosecution, In •brief, is tiiat Devk'? Bai (since deceased) was married to appeilant Dharom Lai prior to three years of the date of incldent J.e, 14-4-2002, Appellants Ramlal & Neera Bai are uncle & aunt, respectlveiy, of Dharam Lal, thus they are relatlyes of the husband of deceased Devki Bai. The appeliants used to torture and harass deceased Devkl Bai after her marrlage wlth appellant Dharam Lal. At the time of birth of child of DharGm La!, mother. father & maternal relatives of Devki Bai went to the house of Dharam Lal with customary articies on the occasion of bi'rth of child and they were abused & insulted by Dharamiai & Neera Bai. Appellant Dharam Lal executed o.n agreement to the effect that he wili not torture his wife, As a result of harassment & torture meted out to the Devki Bai, on 14-4-2002, she consumed poison ond committed syicide. When appellant Dharorn La! came to know that Devki Bai has consumed poison, he tried to take Devki Bal to Kosdol but durin9 fhe course of journey she died- Merg intimation Ex,P-7 wcs recorded by the Police at the instance of Dharam Lai. 5. After summonina the witnesses vide ExP-2, the Investigating Offi.cer conducted inquest over the body of Devki Bai vide ExP-3* Dead body of Devki Bai was sent for autopsy to Block Medical Officer, Kasdol and the team of doctors consisting of Dr. Y.K. Sharma (PW-7) <& Dr. K.L Banjare conducted autopsy yide Ex.P-6. They found that biood stained froth was •^—- w:-; ^/ present in mouth & nostriis and internal organs of the body were congested. Viscera was preserved. Cause of death was cardio respiratory arrest as a resuit of poisoning and the death was suicidai in nature. FJ<R. was registered vide Ex.P-8 and statements of the witnesses were recorded under Sectbn 161 of the Cr.P.C. The appeliants were arrested and after investlgation, charge sheet was filed before the Court of Judiciai A^agistrate, First CJass, Baioda Bazaar who in turn committed the case to the Court of Ses-sions Judge, Rajpur, from where learned 1st Additional Sessions Judge, Baloda Bazoar received the case on transfer for trial* 6. In order to prove the guiit of the appelbnts, the prosecution has examined as many as ten witnesses. Statements of the accused persons have been recorded under Section 313 of the CrP,C. in which they have denied the circumstances appearing against them and pteaded innocence and faise ImpIicatiofL They have also adduced the defence evidence of ParasrGm (DW-1) & JayatrGm (DW-2) who have stated that Devki Bai was doubtinQ on the character of her husband that he was having illicit relations with appe!iant Neera Bai and' on the ground of doubt, earJier she has quarrelied with Neera Bai, even at the time of function on the occasion of delivery of chiid also there was quarre!* 7. It Is argued on behalf of the Oippeilants that the appelbnts have not tortured deceased Devki Bai Gnd they hwe never demanded dowry. The deceased was doubting the character of her husband that he was having illicit reiations with Neera Bai. She has tried to quarrel with Neera Bai & Dharamta!. Therefore, the appeilants are not responsibie for the death of Devki Bai. Maternal relatives of Dsvki Bai have also not stated anything in thelr statements recorded under Section 161 of the Cr.P.C. regarding demand of dowry. After iapse of so many months, the maternal relatives of Devki Bai haye deposed re9ardina demand of dowry and harassment in connection with demond of dowry. ^ €•'••' 8. On the other hand, learned counsei appearingon behalf of the State/ respondent has supported the Judgment and argued that the evidence odduced on behaif of the prosecution is sufficient to draw inference against the appeltants for commission of offence under Section 304-B of the I.P.C. The trial Court has convicted and sentenced the appellants In the aforesaid manner, on the basis of reliable evidence. Learned Pane! Lawyer has pbced reliance in the matter of Alamgir Sani v. State of <4ssam in which it has been held by the Apex Court that absence of any stGtement for iil-treatment or beating or demand at the time of death is no ground for disbelieving the evidence of demand for dowry, it may be under shock. 9. In order to prove the guilt of dowry death, the prosecution Js requlred to estabijsh the foJlowing essentia! jngredients of the offence: - > Deceased Devki Bai died within seven years of her morriage jn Gbnormal circumstances as a result of bum or ofher injuries or committed suicide. > Deceosed Devki Bal was married to Dharam LGJ and rest of the appellants are reiatives of Dharam Lal > Deceased Devki Bai was subjected to cruelty by the appellants in connection with demand of dowry soon before her death. 10. Abnorma! death of deceased Devki Bai, by consuming poison and committjng suicide/ has not been disputed on behalf of the appeliants. Otherwise aiso it Is estabiished by the eyidence of Koshal Prasad (PW-l) - brofher of deceased Devki Bai, Puneet Ram (PW-2) - father of deceased Devki Bai, 5orelal Sahu (PW-5).. Dr. Y.K. 5harma (PW-7), Vyas Narayan (PW-8) & autopsy report Ex.P-6 fhat the deceased was married to Dharam La! and she died withln seven years of her marrlage In abnormoi circumstances as a result of committing sulcide by consuming poison, 11. In order to connect the appelbnts with the crime in question fhe prosecution has adduced ocular ond circumstantio! evidence as follows: - 2003 AIR SCW 111 ^. r a< The appeilants used to harass deceased Devki Bai. b. Deceased Devki Bai used to say the incidence of harassment meted out to her by the appellants, to her father, brother <& other relatiyes< 12. In order to appreciate the contentions of the parties/I have examined the materlai Gvaibble on record. Koshal Prasad (PW-1), who is brother of deceased Devki 8ai, has stated in his evidence that his sister was married before three years with Dharam Lai, after the marriage she wos happy in the house of Dharam Lai for 3-4 months and after 3-4 months, appellants Dharam LaS, Ramtai & Neera Bai used to harass & beat his sister and they used to say that she has not brc'ught any articles with her and not brought the motorcycle etc, They used to taunt her, He has further stated that his slster used to come to his house and tel! about the torture being meted out to her by the oppeliants. He has atso stated that once Devki Bai came to his house on the ground thot her in-iaws were demandinQ dowry Gnd harassing her in connection with demand of dowry, at that time his father dso came to his house from his working piace, he told his fGther that the appeliants are harGSsinQ deceased Devki Bai in connection with demand of motorcycie etc., he advised h Is father to take Devki 3ai with him and when her in-bws come to take her back, he sha)l send Devki Bai with them. He has further stated that in the month of February during the ShivrinarayQn Fair, appeliant Dharam Ld, his sister A Devki 8ai came to his house and they stayed in his house for one night. At fhat time, Devki Bai told him that her In-iaws were demandina vehicle, he consoied her and sent her with Dharam Lal, At the time of delivery of Devki Bai, his father stayed in the house of Dharam Lal where the appellants quarreled with him and toid him that why he has not come with clothes etc, During the Holi festivd when he went to meet his sister/she told him that the appellants used to beat & torture her on the ground that they hQve not provided yehicle to them. On 14-4-2002, he heard that Devki Boi died. The Police have seized agreement Article 'A' vide ExP-1 which was executed by appellant Dharam Ld. ^. _/ IS.Puneet Ram (PW-2), father of Devki Bai has supported the evidence of Koshal Prasad (PW-1), He has also stated in his evidence that appellant Dharam Lai has o^cuted agreement Article A' before the Panchas, to resolve the dispute. At the time of functlon on the occasion of the birfh of child of Dharam Lal, he went to the house of Dharam Lal, where Devki Bi told him that the appeilants used to harass & torture her in connection with demand of dowry. He has further stated that her daughter committed suiclde as a result of harassment. 14. Execution of IkrarnGma Articie W has been supported by &orela! Sahu (PW"-5)< Vyas Narayan (PW-8), cousin of Deyki Bai, has aiso supported the evidence of Koshal Prasad (PW-1). 15. Koshal Prasad (PW-1) has admitted in his cross-examination that at the time of marriage, the appellants have not demanded anything and even there Js no custom of dowry in their caste, but people used to give articles voiuntarily. Father & uncle of Dharam LGJ used to reside separateiy< AppeJlants Dharam La! & Rambi used to live separately, but their court^ard is common, He has denied the suggestion fhat Devki Bai used to doubt on the character of her husband that he is having iilicit relations with appeibnt Neera Bai» He has oiso admitted that at fhe time of inquest the Police was present, but he has not told to the Police anythina regarding demand of dowry. He has further admitted fhat he has told fhe details of demand of dowry to the Police and in his statement Ex. D-1, but fhe same has not been recorded in the Police statement, 16. Puneet Ram (PW-2), father of deceased Devki Bai, has also admitted in his cross-examination that at the time of DeepGvaJi festival, appellant DharQm La! had beaten Devki Bai, in his house, He has also admitted that he and his brothers are residing separateiy, He hos further admitted in para 10 of his cross-examination that after executlng the agreement Article 1A/, Devki Bal used to iive with Dharam La! & RamiGi. 17. Deceased Devki was married to Dharam Lol In the year 1999 and she died 'on 14-4-2002. She consumed poison in the house of appellant &har'Gim Lal, r v but Dharam Lai has not offered any expionation GS to why the deceased has consumed poison on the date of incident and why he has executed Article 'A' aareement in which he has written that he will never torture & harass his wife and he wili never support his uncle <& aunt i.e. appeliants Ramla! & Neera Bai. 18.In the instant case, prior to commission of suicide by deceased Devki Bai, her brother, father & other reiatives had not lodged any report to the PoJice. In case of domestic violence or harassment, normally the effected persons i.e. daughter-in-law does not report or inform anyone about the harassment or tortuous attitude of her husband or in-iaw's to other persons but as and when she gets the opportunity, she informs about it to her parcnts. Jheporent^ of the brlde normaily do not react immediately but wait for an opportune time, in the hope of amicabJe settlement between the parties and to ayoid further complicGtions which may arise in future. But when the matter becomes intolerGble then the daughter-in- iaw or the effected bdy discioses the tortuous attitude of her husband and in-bw's, to the police, neighbour and other persons rebted to her to get the dispute resolyed with their intervention. 19.In this case, on the death of Devki Bai, her reiatives have also not informed the Police about demand for dowry and cruelty, but same will not . affect the credibiiity of fheir evidence. In the case of Ajamglr (supra), the Apex Court has he!d that on account of shock suffered by parents of the deceased, they wi!l not be In a position to teil about demand for dowry and crueJt/ at the time of death of her daughter. 20.Defence has tried to elicit the facts by way of cross-examination of Koshal Prasad (PW-1) & Puneet Ram (PW-2) that at the time of birfh of child of appeliant Dhoram Lai the quarrel took plGce in the house of Dharam LGJ and it was revealed by the villagers and subsided. The appeliants have aiso tried to estabiish by way of cross-examination that the deceased was havina doubt on her husband Dharam Lat that he is having iiiicit reiations with appeilant Neera Bai and on this ground there A-^ was regubr quarre! between Dharam Lal & deceased Devki Bai. By cross- examination of the witnesses, appeliant Dharam Ld himseif has tried to show that there was reguldr dispute between husband & wife, Koshal Prasad (PW-1) & Puneet Ram (PW-2) have a!so stated that Devki Bai was harassed & tortured by Dharam Lal and rest of the appelionts, As regards the question of demand of dowry, they have made ba!d statements, but they have not specified that as to when the dowry was demanded and whether they have tried to resolve the problem, but their statements show that appeilant Dharam Lal used to harass & torture his wife Devki Bai who died as a result of poisoning, Appeilants Ramlai & Neera BGJ were not residina with Dharamial or Devki Bai, they are uncie <& aunt of Dharam La! and they are residing separately/ No specific Gllegations haye been levelled by the witnesses aaainst these two appeilants to show that they had in fact harassed <& tortured the deceased and as a result of harassment & torture made by Ramlai & Neera Bai, Devki Bai committed suicide. 21.This is a criminal case in which the prosecution is required to prove its case against the appelSants beyond all reasonable shadows & doubts, the appelEant.s are not required to demoiish the case of fhe prosecution to prpve their innocence, 22.In this case, the eyidence adduced on behalf of the prosecution is not sufficient to draw inference against appelhnts Ramh! & Neera Bai, who were iiving separately from DhGram Lal and who were not mother & father of Dharamlal, but his uncle & aunt. However, the prosecution has coliected sufficient material against appetbnt Dharam Lal of harassment & torture against his wife Devki Bai. If any dGughter-in-law or wife is regularly subjected to cruelty by husband or his reiatives, then it becomes impossibie for her to live with her husband & in-laws and it creates compelling circumstances to such daughter-in-iaw or wife and forces her to end her life. In this case, deceGsed Devki Bol has committed suicide as a resuit of harassment & torture mGde by appellant Dharam Lai. The act of Dharam Lal squareiy fa!Js under the cateaory of obetment &. instigation for commission of suicide which is Dunishabie under Section 306 of the I.P.C. Glthough no specific charge under Section 306 of the I.P.C, has been made against appellant Dharam Lal. But in this case, sufficient opportunity has been given to the appeilants to meet the charge of harassment <& torture and the appellGnts had cross-examined fhe witnesses at iengfh to discredit their evidence relating to hGrGSsment & crueSty- Offenceunder Section 306 of the I.P,C. is a minor offence inciuded in the case of dowry death punishable under 5ection 304-B of the IP.C. and if sufficient opportunity has been given to the appellant/accused, in suitabie cases even in the absence of specific charge, accused may be held Quilty for commission of offence under Section 306 of the I.P.C. In the case of Hira La! and others y. Stats (6©yt.of NCT), Delhi the Apex Court has heid fhat even in case of charge under Section 304-B of the I.P.C*, the occused may be held guilty for commission of offence under 5ection 306 of the I.P.C., even in absence of spedfic charge. Parcs 15 <&. 16 of the judgment in the matter of Hira Lai (supra) read thus: "15. It may be noted that though no charge was framed under Section 306 IPC, that is inconsequentiai in yiew of what has been stated by a three-Judge Bench of this Court in K. Prema S. Rao v. Yadh SrinivasQ Rao . 16. On the facts of the case even fhough it is difficuit to sustain the conviction under Section 304-B IPC, there are sufficient materiGls to convict the accused-appeiiants in terms of Section 306 IPC aiong with Section 498-A IPC." 23. For the foregoing reasons, conviction & sentences imposed upon qspellants Rambl <Ss Neera Bai under Section 304-B of the I.P.C. are not sustainable. Simiiarly conviction <& sentence imposed upon appeibnt Dharam Lal under Section 304-B of the I.P.C, are GJSO not sustdnabie, however, his act is punishabie under Section 306 of the I.P.C. 24.In the result, a. Criminal Appeai No.1246/2002 fiied on behalf of Ramlal & Neera Bai is aliowed. Conviction and sentences imposed upon Ramlal <& Neera 2 (2003) 8 SCC 80 3 (2003) 1 SCC 217 : 2003 SCC (Cri) 271 ^ 10 Bai under Section 304-B of the 1P£.are set aside and they are acquitted of the said charge. b. Crimina! Appeal No.152/2003 filed on behalf of Dharam Lal is partiy ailowed. Conviction and sentences imposed upon Dharam Lal under Section 304-B of the I.P.C, are set aside and he is acquitted of the said chGrge, instead thereof, he is convicted undsr Section 306 of the I.P.C. and sentenced to undergo R.I. for^^year's. '^ '<9'<?2 c. It is informed that the appeibnts are in custody from 28-4-2002 and they have completed five years of jaii sentence^ They are directed to be released forthwith If not required to be detained in connection with any other offence, Soma Sd/- T.P. Sharma Judge ^^~ 'XI-HC—78 ^ ^^ ^m^'TT^W^ T^r ^j<qi<^1^, ^Tl1^JI<o, 'N^TRT^; __ &,fl,(5: •TF{, 200J3 ^^r^i^C^t^^r) ~^T^7[ ^T f^TTSF 7Tr4I yff^T st'Hi'^ iT<TT^ -^T 3Trt?i 7FT^T4H 'RT^n ^ f^zl- n^-??K ^ '^rm ^fi^i (SB: Hon'bie Mr. T.P. Sharma. Jt 29-9-2008 Mr. Hanuman Prasod AarQwo Mr. RavindrQ AQrowG! Ponel Heard on I.A.No.l/ZOOS, a^ptication fiied under Section 362 of the Cr.P,C. for correction of cierica passed in Cr.A.Nos.1246/2002 <& 132/2003. Learned counse! for the disposing of rhe obove two crin^ ) . counsel for the appellant. .owyer ^or -rne 5tate/respondent. error in the judgment dated 8-9-2008 ^ppetbnt submits that this Court while ^jna! appeais, oppellant Dharam La! (Cr.A. No. 152/2003) has been convicte^) under Section 306 of the I.P.C. and sentenced to underoo ft.l. for teri veors, and oiso directed thct beccuse he was in custody alonq ^ith o^hcjr co-accus^d from 28-4-200-2 ond hos compieted 5 yeors of jail sentenc^, therefore he be retecsed forthwith, ir Ojpt r-equired to be cJetained in coniiection with any other offence. But due to cierical error, insteod of mentionin^ 'five' years^ it has been mentioned os 'ten' years. He further submits that it 1s o clerical mistake. the some be cor-rected !n terms of Section 362 of the Cr.R C. It revea!s from the Judament dated 8-9-2008 that o!l the oppel!ants were in custodv from 28-4-2002! sentence and it wos a!so directed ond they have completed fiye years of that they be released forthw'th, if not required to be detained in connection with any other offence, But instead of j mentioninq R.I. for 'five' veors, it tas been mentioned os R.I. for 'ten' vears ?^ •••^ XI^HC—78 ^IW^T %h HI^i -g-oc[ ^iqiQi4, <t$til^i4i<o, f^rray ...&.,...ft..^.^^... 3^-75^0 ..^..............^ ^Q^ ^) "^T^TI ^TT 'f^fT^F ^^T -3TI^T ^RT^ 5oma ^'^WT ^W^ 3TT^I This is o cSericai mistoke and i+ judqment itself as >fiye veors ins'tfead of 'ten' veors. Conseouentiy, I.A.No.l/200£) Reqistry is directed to rescjan the judQment ond send the SGme to the concerned Court. Certified copy today^ '^pTi^'4'n -w^f ^ fe^ Ti'^?K ^--3ffOT^I^T is corrected on 29-9-2008 in the said is cilowed Sd/- T.P. Sharma Judge