Mere recovery of money cannot prove the charge of the prosecution against the accused under Section 7 of the Prevention of Corruption Act, 1988: Chhattisgarh High Court

HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.4511 Judgment Reserved on : 17.3 . 2021 Judgment Delivered on : 10.6.2021 1. Sheshuraj Marian S o E.J. Marian age 35 years 2. E.J. Marian S o Late A. Marian age 63 years Their names are deleted vide order dated 25.11.2019 3. Smt. Elisabeth Merry Marian W o E.J. Marian age 60 years 4. Ku. Velankanni Merry Marian D o E.J. Marian age 31 years All R o Panchsheel Nagar Charoda Police Station Bhilai District Durg Chhattisgarh Appellants State of Chhattisgarh through the Arakshi Kendra Purani Bhilai District Durg Chhattisgarh Respondent For Appellants Ms. Sharmila Singhai Advocate Shri Roshan Dubey Panel Lawyer Hon ble Shri Justice Arvind Singh Chandel C.A.V. JUDGMENT During pendency of this appeal Appellants No.1 and 2 died. Vide order of this Court dated 25.11.2019 their names have been deleted from the array of cause title and the instant appeal so far as it relates to them has abated. The appeal is directed against judgment dated 14.6.2011 passed Facts of the case in brief are that name of the deceased is Smt by 4th Additional Sessions Judge Durg in Sessions Trial No.310 whereby each of the Appellants have been convicted and sentenced as under: Under Section 304B of the Indian Penal Code Rigorous Imprisonment for 7 Celistina. Her marriage was performed with Appellant No.1Appellant No.3 and Appellant No.4 are father in law mother in law and sister in lawof the deceased respectively. In the intervening night of 26th and 27th of July 2009 Celistina died due to fire burn at her matrimonial house. Morguewas lodged by Appellant No.1. Inquest proceedingwas conducted. Post mortem examination over the dead body of Celistina was conducted by Dr. Badri Narayan Dewangansister of the deceased made a written complainton the basis of which First Information Report Ex.P8) was registered. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. It is alleged that after a few days of the marriage the deceased was subjected to cruelty by the Appellants for demand of Rs.1 00 000 for purchase of a car. On completion of the investigation a charge sheet was filed. The Trial Court framed charges. To rope in the accused Appellants the prosecution examined as many as 9 witnesses. Statements of the accused Appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the guilt pleaded innocence and false implication. 2 witnesses were examined in defence. On completion of the trial the Trial Court convicted and sentenced the Appellants as mentioned in 2nd paragraph of this judgment Hence this appeal Learned Counsel appearing for the Appellants submitted that the Trial Court convicted the Appellants without there being clinching and sufficient evidence on record. It was further submitted that at the time of inquest proceeding the family members of the deceased i.e. her father and sister were present but at that time and thereafter also they did not make any complaint regarding subjection of the deceased to harassment for demand of dowry After 5 months of the incident the written complaintwas lodged by the sister of the deceased. Delay in lodging the First Information Report has not been properly explained. It was further submitted that S. Babu Rao father of the deceased categorically admitted the fact that after the marriage the deceased was happy and there was no demand for dowry. S. Roseline Rao PW5) sister of the deceased has also admitted that since January 2009 the deceased never complained of any demand for dowry Suddenly in the month of May 2009 the deceased would have complained of any harassment for demand of dowry is suspicious It was further submitted that on 28.7.2009 S. Babu Rao father of the deceased made a written submissionto the concerned Station House Officer which does not contain any complaint that the deceased was ever subjected to cruelty for demand of dowry. But the Trial Court has not appreciated this fact and convicted the Appellants. According to Learned Counsel appearing for the Appellants since “soon before her death” the deceased was subjected to cruelty is not established the conviction of the Appellants is not sustainable. On the contrary Learned Counsel appearing for the State supported the impugned judgment of conviction and sentence. I have heard Learned Counsel appearing for the parties and perused the entire record of the Trial Court with utmost circumspection. In AIR 2014 SC 2555 it was observed by the Supreme Court as under: “19. The expression “soon before her death” used in the Section 304B IPC and Section 113B of the Evidence Act was considered by this Court in Hira Lal & others v. State Delhi 2003) 8 SCC 80 :which reads as under: Section 304 B IPC which deals with dowry death reads as follows: “304 B. Dowry death.(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry such death shall be called dowry death and such husband or relative shall be deemed to have caused her death Explanation.—For the purpose of this sub section dowry shall have the same meaning as in Section 2 of the Dowry Prohibition Act 1961Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for or in connection with any demand for dowry. In order to attract application of Section 304 B IPC the essential ingredients are as follows: The death of a woman should be caused by burns or bodily injury or otherwise than under a Such a death should have occurred within seven years of her marriage She must have been subjected to cruelty or harassment by her husband or any relative of Such cruelty or harassment should be for or in connection with demand of dowry Such cruelty or harassment is shown to have been meted out to the woman soon before her death. Section 113 B of the Evidence Act is also relevant for the case at hand. Both Section 304 B IPC and Section 113 B of the Evidence Act were inserted as noted earlier by Dowry Prohibition Amendment) Act 486 with a view to combat the increasing menace of dowry deaths. Section 113 B reads as follows “113 B. Presumption as to dowry death.When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for or in connection with any demand for dowry the Court shall presume that such person had caused the dowry death Explanation.—For the purposes of this section dowry death shall have the same meaning as in Section 304 B of the Indian Penal Code 7 SCC 724 :1 SCC 202 it was further observed by the Supreme Court thus: If Section 304 B IPC is read together with a Section 113 B of the Evidence Act comprehensive picture emerges that if a married woman dies in unnatural circumstances at her matrimonial home within 7 years form her marriage and there are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband the case would squarely come under “dowry death” and there shall be a presumption against the husband and In this case we fnd that there is practically no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry. There is also no fnding in that regard. This defciency in evidence proves fatal for the prosecution case. Even otherwise mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304 B IPC. It has to be shown in addition that such cruelty or harassment was for or in connection with the demand for dowry. SCC 118) Since the prosecution failed to prove that aspect the conviction as recorded cannot be maintained.” Further in 1 SCC 101 it was observed by the Supreme Court as follows: “32. This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution frst spell out the ingredients of the ofence of Section 304B as in Shindo v. State of Punjab 11 SCC 517 and echoed in Rajeev Kumar v. State of Haryana 16 SCC 640. In the latter pronouncement this Court propounded that one of the essential ingredients of dowry death under Section 304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the ofence of dowry death under Section 113B of the Act. It referred to with approval the earlier decision of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao 1 SCC 217 to the efect that to attract the provision of Section 304B of the Code one of the main ingredients of the ofence which is required to be established as that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand for dowry”.” Now I shall consider the evidence of the instant case in the light of above view taken by the Supreme Court. In the case in hand it is not in dispute that the deceased was married with Appellant No.1 on 8.10.2008 and she died at her matrimonial house due to burn injuries i.e. in an unnatural circumstance in the intervening night of 26th and 27th of July 2009. Her death was within 7 years of the marriage. Now it needs to be considered whether “soon before her death” she was subjected to cruelty or harassment by the Appellants for demand of dowry. In this regard the statements of S. Babu Raoand S. Roseline Raofather and sister of the deceased respectively are required to be appreciated In their Court statements S. Babu Raoand S. Roseline Rao PW5) deposed that in the month of May 2009 they along with the wife of S. Babu Raohad gone to Chennai to visitfurther deposed that there the deceased had told her that Appellant No.1 had a love relationship with a girl and on being asked in this regard he used to beat her. She further deposed that the deceased was being subjected to cruelty for demand of Rs.1 00 000 for purchase of a car. She further deposed that she had heard that Appellant No.1 was impotent. S. Babu Raodeposed that he had met with the deceased at Chennai in the evening of that day. At that time the deceased had complained him of her mother in law Appellant No.3 that she was not good at her and she used to harass her. This witness also deposed that he had come to know that Appellant No.1 had a love relationship with a girl and on being asked in this regard he used to beat the deceased. This witness further deposed that he had also come to know that Appellant No.1 was impotent. In paragraph 13 this witness admitted that till the deceased resided at her matrimonial house this witness was in contact with her on mobile phone. He further admitted that in the month of January 2009 the deceased had come to his house for about 15 days and at that time she had told him that she was happy at her matrimonial house and all the family members of her matrimonial house were good at her. This witness further admitted the fact that the application was signed by him. From perusal of Ex.D3 it appears that the fact relating to subjection of the deceased to cruelty or harassment for demand of dowry is not mentioned therein. Though this witness deposed that no such application was given by him to police he has not explained why how and when he signed the applicationfor bringing the belongings of the deceased but on 5.11.2009 or before that no complaint was made against the Appellants in police station. S. Roseline Raoin paragraph 12 of her cross examination deposed that in the month of January 2009 when the deceased had come to their house at that time she had not made any complaint regarding demand of dowry. In paragraph 16 she further admitted that she had also gone to Durg along with her father and Advocate Ramesh for bringing the belongings of the deceased. But on that day or prior to that they had not made any report against the Appellants. The written complaintwhich was lodged by S. Roseline Rao PW5) bears the date of 21.12.2009 and this complaint was typed and printed out from a computer. In paragraph 16 of her cross examination S. Roseline Rao admitted the fact that the written complaintwas prepared by whom was not known to her. On a minute examination of the above statements of S. Babu Rao PW4) and S. Roseline Rao father and sister of the deceased respectively it is clear that after 5 months of the death of the deceased the written complaintdated 21.12.2009 was lodged by S. Roseline Raoand S. Roseline Raoit is also clear that at the time of inquest proceeding both were present but no complaint was made by any of them at that time nor even thereafter against the Appellants for subjecting the deceased to cruelty or harassment for demand of dowry. Instead S. Babu Raofather of the deceased made the applicationaddressing the same to Station House Officer but even in Ex.D3 he did not mention any fact regarding subjection of the deceased to cruelty or harassment for demand of dowry. Though S. Babu Rao has not been explained by him. From the admissions made by both these witnesses it is also clear that they had gone to Durg along with Advocate Ramesh on 5.11.2009 for bringing the belongings of the deceased but on that day also none of them made any complaint against the Appellants. Had there been really a complaint of subjection of the deceased to cruelty or harassment for demand of dowry they would have raised a complaint in this regard on 5.11.2009 or prior to that. But the complaint was made on 21.12.2009 vide Ex.P5. From the admissions made by the above two witnesses it is also clear that in the month of January 2009 when the deceased had visited their house till that time no complaint was made by the deceased regarding demand of dowry It is the admission of S. Babu Raofather of the deceased that he was in contact with the deceased on mobile phone but he never raised any complaint regarding any demand of dowry. In the month of May 2009 at Chennai also the deceased did not make any complaint to his father regarding her subjection to cruelty or harassment by the Appellants. Therefore “soon before her death” the deceased was subjected to cruelty or harassment for demand of dowry is suspicious. In the circumstances conviction of the Appellants under Section 304B of the Indian Penal Code is not sustainable and they are entitled to get benefit of doubt. Consequently the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellants are acquitted of the charge framed against them. Sd (Arvind Singh Chandel JUDGE 

Summary: Recovery by itself is insufficient to establish the prosecution’s case against the defendant. It is emphasised that in order to establish the accusation, it must be demonstrated beyond a reasonable doubt that the accused knowingly took money knowing it was a bribe. The mere possession or recovery of money notes is insufficient to create such an offence in the absence of proof of demand for illicit satisfaction. The judgment was passed by The High Court of Chhattisgarh in the case of Pramod Kumar &amp; Ors. V. State of Chhattisgarh [Criminal Appeal No.829 of 2003] by a Single Bench consisting of Hon’ble Shri Arvind Singh Chandel. The facts of the case are that a resident of the said village had demolished the appellant’s old house and raised a new construction there. For raising the new construction, he had purchased some wood from a government depot and some wood was used by him available from his old demolished house. The Appellant told Complainant that the wood used by him for raising the new construction of his house was stolen by him from the forest. Allegedly, the Appellant demanded a bribe of Rs.5,000 for not making a forest case against the Complainant. Ultimately, the Appellant consented to accept a bribe of Rs.1,000. Since the Complainant did not want to give a bribe to the Appellant, Hence, he submitted a written complaint. Learned Counsel for the Appellant submitted that the Trial Court has convicted the Appellant without there being sufficient and clinching evidence against him on record. It was argued that in the transcription, there is nothing to show that there was any demand by the Appellant for a bribe. Regarding the written complaint made by the Complainant, it was argued that does not bear the signature of the Complainant and he admitted the fact that the complaint was not written by him. Therefore, examination of the author of the complaint is necessary. Further, the counsel argued that mere recovery of the tainted money does not constitute an offence against the Appellant. Learned Counsel for the Respondent supported the impugned judgment.