,<A ^'^; HiGH COURT OF CHHATTiSGARH AT BiLASPUR DfVision Bench:- ?6 CORAM: HON'BLEMR.T.P.SHARS4A& HON'BLE MR.R.N.Chandrakar, JJ. Ao&eliants fln Jai!) Criminaj Appeai No.740 of 2697 'llf. 1. Mahesh Kumar Yaday (Died) 2. Smt.Rahibai Yaday W/o Late Makhan La!aged61 years ' Botb R/'o-Ghonghadih Thana ^Dist. Bii3Spur(C.G.) Versus Kota State of Chhattisgarh Through P.S. Kota Distt.Bilaspur (C.G.) RESPONDENT (CRMiNAL APPEAL UNDER SECTiON 374 (2) OF THE Cr.P.C.) Mr.Pawan Kesharwani,counse!forapp8liant No.1. Mr.J.A.Lohani, Panei Lawyerforthe State/respondent. g; JUDGMENT (Passedonl 2th July, 2011) Per T.P.Shamia, J.:- 1. Chaiienge in this appeaS is to the judgment of conviction & order of sentence dated 3.3 2007 passed by the 91 Additionai Sessions Judge (F.T.C-), Biiaspur, in Sesstons Trial No.266/06, vvhereby & whereunder learned 9" AdditionaiSessions Judge after hoiding the appeilants guilty for caysing dowry death of wife of appeiiant No.1 and daughter-in-iavv of appeliant No.2 convicted them under Section 304B of the I.P.C. and sentenced to undergo R.i. for fourteen years. 2. AsperreportoftheSuperiniendent.Central Jaii, Bilaspur, appeijant No.1 Mahesh Kumsr Yaday has died on 24.4.2010, thsrefore, appeai fiied on behaif of appeiiant No.1 Mahesh Kumar Yaday is abateci. 3. Convictionis impugned on the ground that without there beinganyiota or euidence, the triai Court has convicted and sentenced the appeiiants as 'aforementioned and thereby coinmitted jil^alfty. •/'• $1 ^§tf '^. ^. s .*' ri'* ''''"' i;;-"F<^^?"'s ^; 4. As per cass of the prosecution, deceased Ushabai was marrie^ to appeSSant Mahesh on 22.5.2005, the present appellants demanded Rs.40,000/'- for repayment of ioan taken for mamage, they hsve also committed torture and cruelty in connection with demand of dovwy and as a resuit of such torture and crueity she died under abnormal circumstanceg, as a resuit of burn injuries in the house_of the appeiiants. Merg was recorded vide Ex.P/1. After summoRing the witnesses vide Ex.P/6 inquest over body of,the deceased was prepared v'ide Ex.P/5. Haif burnt piastic chair and bed were seized vide Ex.P/2. Plain soil & soil contalner smell of keroseoe oil and oii container were seized from the spot vide Ex.P/7. Marriag&.card and iist of inventory of property given in dowry have been sejzed vlpe Ex.F/8. Patwari prepared spot map vide Ex.P/10 (ii). Dead boely of the deceased was sent for autopsy to Community Heaith Centre, Kota where Dr.Sandip Dwivedi (PW-11) conducted autopsy vide Ex.P/13 and foURd that cause of death was asa resuit of ante-mortem bum injuries. F.i.R. was iodged vide Ex.P/16. Poiice aiso prepared spot map vide Ex.P/17. Seaied articles were seized vide Ex.P/10. Seizsd artictes were sent for chemicai examination and presence of kerosene oii over soii recovered from the spot, ciothes of the deceased and part ofthe deceased was confirmed. 5. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after compietion of investigation, charge sheet was filed in the Court of Judicial Magistrate-Flrst Ciass, Biiaspur, who in tum committed the case tp the Court of Sessions, Bilaspur, from where leamed 9th Additional Sessions Judge (F.T.C.), Bilaspur receiyed the same on transfer for tria!. i. in orderto prove the guiit of the accussd/appeliants, the prosecutton has examined as many as thirteen witnesses. Statements of the accused/appellants wererecordsd under Sectron 313 of $he Cr.P.C., in which they denied the Gircumsiances appearing against them and ciaimed innocence and faise implication in thecrime in question. They have aiso examined defence witness Chediial Pandey (DW-1). '^ ..<4?r ;„-.!<"" 7. After affording opportunity of hearing to the parties, the 9th Additlonal Sessions Judge has convicted and sentenced ihe appeiiants as aforementioned. 8. We have heard ieamed couRsei for the parties, perused the judgment impugneti and recordofthetfiaiCourt. 1. Learnedcounse! for appeiiant No.1 submits thai in the light of ocuiar snd dooumentsr/ evidence he is not disputing the fact that deceassd Usha 3ai, daughter-in-iaw of present appeiiant Smt.Rahibai, has not died under abnormal circumstances as a resuit ofbum injuries in the house of theappeilants within thirteen months of her marriage but submlts that evidence adduced ori beii^lf of fhe prosecution is not sufficient for drawing inference that she has been subjected to torture and crueity In connection with demand of dowry soon before her death, that too by the present appeiiant. Leamed counsel furthersubmits that in the absence of aforesaid essentiai ingredient of the offence, conviction and sentence imposed upon the present appeliant under Section 304B ofthe !.P.C. are not sustainabie under the law. Lsarned counsei contended that the prosecution has not coilected clinchlng evidence against the appellant. 10.0n the other hand, ieamed State counsel supported ths judgment impugned and submits that the prosecution has coilected sufficient evidence to connect the present appeiiant in crime in quesSion and the triai Court has rightiy convicted and sentenc^i the appelSant as aforementioned. 11. In order to ^preciate $he arguments advanced cn behaif of the parties, we have examinsd the evidsnce adduced on behalf of the parties. 12.in the present ease, abnormai deat'n as a resuit of burn injuries of deceased Ushabai has not been substantiaily disputed on behaif of the appeilant, that too within thjrteen months of her mamagawith appeiiant Mahesh (since deceased). Aforesaid fact is also established by the evidence of Dr.Sandip Dwivedi (PW-11)and autopsy report Ex.P/13. 13.As regards the compiicityof appeiiantSmt.Rahibai in crime in question, conviction is substantiaily based on the evidence of Govind Prasad YacSav (PW-1), cousin'orother of the deceased, Banshi Lal (PW-3), father "y ^ -s,' of the deceased, Vimal Kumar Yadav (PVtf-6), brother of ths deceased and Smt.Sita Yadav (PW-7), sistsr-in-law of the deceased VA}O have deposed that aftsr mamage of Ushabai iniaws' of deceased Ushabai have demanded Rs.40,000/- for repayment of ioan and they have committed torture and crueityrelating to sub-standard articles. 14.in order to convict appeilaRt Smt.Rahibai for the offence punishabte under Saction 304B of the I.P,C.,the prosecution was under obligation to prove the fact that deceased Ushabai, daughtsr-in-law of the appeliant has committedsuicide or died under abnormal circumstances as a resutt of burn injuries or other injOrieswithin seven yesrs of her marriage and soon before her deathshe|ias been subjected totorture and cruelty in connection with demand ofdowry. tS.Evidence sdduced on behalf of the prosecution, especially evidence of aforesaid witnesses do not reveal that the present appeilant has demanded dowry soon before death of the deceased, but evidence of aforesaid witnesses cieariy reveai that the present appeiiant has committed torture and cruelty on the ground of sub-standardarticies given at She tjme of marriage to deceased Ushabai, thsy have also demanded Rs..W,000/- which they have taken as ioan for mamage with the condition that they have returned the same. This evidence shows that the present appellant has not demanded dov.'ry soon before the death of the deceased or in time before her death but on account of sub- stantiard articlesshe has reguiarty committed torfure and crueity upon the deceased and con'ipeiied her to commit suicide. These evidsnces are sufficient to establish the fact that the present appeiiant has abetied the suicide of deceased Ushabai. 36.At the tims of trial, the trial Court has not framed the charge of Section 306 ofthe i.P.C. against the present appeliant butcompleteopportunity to defend its case 'nas been provided to the prosecution. Even otherwise, commisston of suicide is punishabie under Section 306 of the l.P.C. whfch is inciuded in the offence punishable undsr Section 3Q4B of the !J3.C.,{herefore, no separatecharge of the offsnee punishabte under Section 306 of the i.P.C. is necessary, even no prejudice has been caysed to ths appeliant. ,. <!' t* (-.J .-' V[0}- d/- 17.Whiie convicting andsentencing the appeilant under Section 304B of the I.P.C. the trial Court has not considered the aforssaid evidence and circumstances and thereby commltted iliegaS'ity. 18.For the foregoing reasons, the appeal is partly aiiowed. Conviction of appeilant Smt.Rahibai Yaday under Section 304B ofthe I.P.C. isaitered fo Section 306 offhe i.P.C. and senfenced her to fhe custodia! period i.e, since 19.4.2006 tili today for about five years and three months. She be released, 'if not required in any other case. 1 Sd/- SdA y\ i R.N.Chandrakar TP.Sharma > ' 1 Judge Judge J^/