Chattisgarh High Court
State Of Chhattisgarh vs Smt.Vimala Jain & Ors on 10 April, 2017
Bench: Pritinker Diwaker, R.C.S. Samant
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 892 of 2000
1. Smt.Vimala Jain, wife of Ratanlal Jain, aged 48 years,
2. Smt. Anita Jain, wife of Narendra Jain, aged 34 years,
3. Suresh Jain, son of Ratanlal Jain, aged 34 years,
All residents of Nayapara, Jagdalpur, Distt. Bastar (MP)
---- Appellants
Versus
1. State Of M.P. (Now C.G.)
---- Respondent
For Appellants : Shri Keshav Dewangan, Advocate.
For Respondent/State : Smt.Smita Ghai, P.L.
CRA No. 755 Of 2005
1. The State Of Chhattisgarh (Now C.G.)
---- Applicant
Vs
1. Smt.Vimala Jain, aged about 48 years, W/o Ratanlal Jain,
2. Smt. Anita Jain, aged about 34 years, W/o Narendra Jain,
3. Suresh Jain, aged about 34 years, S/o Ratanlal Jain.
All residents of Nayapara, Jagdalpur, District Bastar (M.P.)
---- Respondent
For Applicant : Smt.Smita Ghai, P.L.
For Respondents : Shri Keshav Dewangan, Advocate.
And
CRR No. 869 Of 2000
1. Smt. Ladu Bai Golcha, W/o Shri Hukmi Chand Golcha, R/o
Village Birgudi, Tah. Nagri, Distt. Raipur (M.P.) (Now CG)
---- Applicant
Vs
1. Smt. Vimla Jain, W/o Ratanlal Jain, aged about 48 years,
2. Smt. Anita Jain, W/o Narendra Jain, aged about 34 years,
3. Suresh Jain, S/o Ratanlal Jain, aged about 34 years,
Above all non-applicants No. 1 to 3 are resident of Nayapara,
Jagdalpur, Distt. Bastar (M.P.) (Now C.G.)
---- Non-applicants
For Applicant : Shri Vishnu Koshta, Advocate.
For Respondents : Shri Keshav Dewangan, Advocate.
Hon'ble Shri Justice Pritinker Diwaker
Hon'ble Shri Justice R.C.S. Samant
Judgment On Board By Justice Pritinker Diwaker
10/04/2017
As the above three cases arise out of the judgment and order
dated 24.3.2000 passed by First Additional Sessions Judge, Jagdalpur,
Bastar in ST No.633/93, they are being disposed of by this common
judgment.
02. In the present case, name of the deceased is Tarabai, wife of
accused Suresh Jain. Their marriage was solemnized in the year 1989
and she died on 26.8.1993 at Sector-9 Hospital, Bhilai while
undergoing treatment after suffering 70% burn injuries. Accused Smt.
Vimla Jain is mother-in-law of the deceased whereas accused Smt.
Anita Jain is her sister-in-law (Jethani). On 23.8.1993 at about 4 am
while boiling milk on the gas-stove, the deceased suffered burn
injuries, she was taken to District Hospital, commonly known as
Maharani Hospital, Jagdalpur, at about 11.50 am where she was
treated till 25.8.1993 and thereafter, was taken to Sector-9 Hospital,
Bhilai where she succumbed to burn injuries on 26.8.1993. Information
was sent from the hospital to the police authorities, based on which
merg intimation Ex.P/6 was registered on 26.8.1993. In the meanwhile,
on 23.8.1993 statement under Section 161 of Cr.P.C. of injured Tarabai
was recorded vide Ex.D/4 and likewise, her dying declaration (Ex.P/13)
was also recorded on the same day. However, in her case diary
statement as well as in the dying declaration, she has categorically
stated that she suffered burn injuries while boiling milk and nowhere
she has alleged that she was burned by the accused persons or that
she made any attempt to commit suicide.
On 27.8.1993 postmortem on the body of the deceased was
conducted by PW-13 Dr. RB Agrawal who noticed 55% burn injuries
and in his opinion, the cause of death was shock as a result of
extensive antimortem burn. On 14.9.1993 a typed written report
(Ex.P/8) was made by PW-1 Ladu Bai, mother of the deceased and on
the same day, FIR (Ex.P/4) under Section 304B of IPC was registered
against the present accused persons and their four other family
members. The other four accused persons preferred a petition before
the High Court of MP and the charges against them were quashed by
the High Court. Present accused persons were charged under
Sections 304B, 498A, 306, 201 read with Section 34 of IPC.
03. So as to hold the accused persons guilty, the prosecution examined
18 witnesses in all. Statements of the accused were also recorded
under Section 313 of Cr.P.C. in which they denied the circumstances
appearing against them in the prosecution case, pleaded innocence
and false implication. In their defence, they examined two witnesses.
04. The trial Court after hearing counsel for the respective parties and
considering the material available on record, by the impugned
judgment while acquitting the accused persons of the charges under
Sections 304B, 306, 201 and 34 of IPC, convicted each of them under
Section 498A of IPC and sentenced to undergo RI for two years & to
pay a fine of Rs.1000/- with default stipulation.
05. Being aggrieved with their conviction, the accused persons have
preferred Cr.A.No.892/2000 whereas the State and the complainant
have filed Cr.A.No.755/2005 and Cr.R. No.869/2000 respectively
challenging the acquittal of the accused persons of the major offences.
06. In Cr.A.No.892/2000 it has been argued on behalf of the
accused/appellants as under:
that there is absolutely no evidence against the
accused/appellants warranting their conviction under Section
498A of IPC;
that the dying declaration as well as statement under Section
161 of Cr.P.C. of the deceased makes it clear that she was living
happily with the accused persons and they have been falsely
implicated at the instance of relatives of the deceased.
that the typed written complaint (Ex.P/8) made by PW-1 Ladubai,
mother of the deceased, appears to have been made after due
deliberation at the instance of her counsel and it was merely
signed by the complaint. From the signature of the complainant,
it appears that she is an illiterate lady and has just signed the
typed document.
that even the basic ingredients of Section 498A of IPC are not
attracted against the accused persons in this case.
if this Court comes to the conclusion that the accused persons
have rightly been convicted under Section 498A of IPC by the
trial Court, considering the fact that the incident took place 22
years ago, appellants No. 1 & 2 have remained in jail for about
24 days whereas appellant No.3 has already remained in jail for
about 56 days; appellant No.1 is now an aged lady and
appellants No. 2 & 3 are middle aged, instead of sending them
back to jail at this stage, their sentence may be reduced to the
period already undergone by them.
In reply to the arguments advanced by the State counsel and the
counsel appearing for the complainant, it has been submitted by
learned counsel for the appellants that basic ingredients for bringing
home the charge under Sections 304B and 306 of IPC against the
appellants are completely missing in this case and therefore, their
acquittal of those charges is strictly in accordance with law.
07. On behalf of the counsel for the complainant and the State
counsel it has been put forth that the Court below has erred in law in
acquitting the accused of the major offences. They submit that conduct
of the accused persons is suspicious, they did not hospitalize the
deceased immediately after the incident and had she been hospitalized
in time, she could have been saved. Lastly, it has been submitted that
dying declaration and case diary statement of the deceased are
doubtful and it appears that the same have been made by the
deceased in the presence of accused persons and as such, she was
not free at the time of making such statements.
Counsel for the complainant further submits that the trial Court
has erred in law in not framing charge against the accused persons
under Section 304-A of IPC for causing death of the deceased by their
negligent act as the evidence on record goes to show that they did not
take the deceased to hospital immediately after the burn incident.
08. Heard counsel for the respective parties and perused the
material on record.
09. PW-1 Ladubai, mother of the deceased, who made typed written
complaint (Ex.P/8) has stated that about four years back marriage of
her daughter Tarabai was solemnized with accused Suresh Jain. On
number of occasions Tarabai visited her house, whenever she visited
her house she used to remain perturbed, however, she would not
disclose anything to her and upon being asked repeatedly, she
informed that she was not happy with the behaviour of her mother-in-
law and sister-in-law and that she was not interested to live at
Jagdalpur and was keen to live at Balod. She thought that the accused
persons might be harassing Tarabai for something, so she gave her a
gold chain, ear ring and some money. She has further stated that she
also received a letter of the deceased and after few days she received
information from her another son-in-law (PW-10 Subhash Chand Jain),
who was residing at Dhamtari, that some untoward incident has taken
place and then she came to know that the deceased has suffered burn
injuries. She states that it was informed by the family members of the
accused persons to one Malhar Rao (PW-4) that there is nothing
serious and some minor burn injury has been sustained by Tarabai.
She states that thereafter her daughter Tarabai was taken to Sector-9
Hospital, Bhilai and correct facts about the incident were not disclosed
by the accused persons, on account of which there was hot talk
between her husband and the accused persons. She states that her
daughter Tarabai expired in the hospital. According to her, even the last
rites of the deceased were not performed by the accused persons as
per prevailing custom. She states that whatever she has disclosed to
the police was as per advice of her husband, the information given by
her son-in-law, Malhar Rao and her other daughter Mannubai (PW-15).
She admits that she was not directly involved in the entire series of
events.
10. PW-2 Rajendra Golcha, brother of the deceased, has stated that
upon being asked the deceased informed him that she was being
harassed by the accused persons. Even this witness has nowhere
stated that there was any demand of dowry by the accused persons.
PW-4 Malhar is the person who had gone to the house of the
accused/appellants at the instance of PW-10 Subhash Chand Jain and
was allegedly informed by the accused persons that some minor burn
injury had been suffered by the deceased. PW-6 Dr. JD Dulhani
admitted injured Tarabai in Maharani Hospital, Jagdalpur and noticed
70% burn. PW-7 Nirmal Loda, sister of the deceased, has stated that
she was informed by Tarabai that her mother-in-law and sister-in-law
(Jethani) used to taunt her in relation to dowry saying that the dowry
was not given as per their choice. PW-8 Prakash Golcha, brother of the
deceased, has also not stated anything about demand of dowry by the
accused persons, though he states that the deceased had told him that
whatever article is to be given, it should be of good quality so that her
in-laws may not complain about the same. He has also made some
allegations regarding conduct of the accused persons. PW-10
Subhash Chand Jain, brother-in-law of the deceased, has not made
any specific allegation against the accused persons in relation to
demand of dowry. He had sent Malhar Rao to the house of the accused
persons after the incident.
11. PW-13 Dr. RB Agrawal conducted postmortem on the body of the
deceased and noticed 55% burn injuries. In his opinion, the cause of
death was shock as a result of extensive antimortem burn. PW-14 Dr.
KD Chandrakar first attended the deceased after the incident and then
looking to her condition, advised for her hospitalization. PW-15
Mannubai, sister of the deceased, has stated that when she met the
deceased, she was informed by the deceased that behaviour of her
sister-in-law is not proper and that she was scared of her mother-in-
law. PW-17 Premlal Sahu, investigating officer, has supported the
prosecution case. PW-18 Bhushan Prasad Dubey, Tehsildar, who
recorded dying declaration of the deceased (Ex.P/13) has stated that
he recorded the dying declaration in question and answer form and the
deceased was in a fit state of mind while making such statement. In the
dying declaration it has been stated by the deceased that she got
married to accused Suresh Jain about 4-5 years back, she has a son,
aged 17 months and that she suffered burn injuries at about 4 am on
23.8.1993 while boiling the milk for her son. She has categorically
denied the fact that there was any quarrel between her and the
accused persons or there was any ill-treatment to her for demand of
dowry. She has further stated that she has not made any attempt to
commit suicide nor has she been burnt by anyone. Almost similar
statement has been made by her in her statement under Section 161
of Cr.P.C.
12. As regards charge under Section 304B of IPC, in order to attract
conviction under this section, there has to be cogent and reliable
evidence to the effect that "soon before her death", the deceased was
subjected to cruelty or harassment. There must always be proximate
and live link between the effects of cruelty based on dowry demand
and the concerned death. The Hon'ble Supreme Court in the matters of
Major Singh and Others Vs. State of Punjab, AIR 2015 SC 2081,
while dealing with this issue observed as under:
"15. To attract conviction under Section 304B IPC, the
prosecution should adduce evidence to show that "soon
before her death", the deceased was subjected to
cruelty or harassment. There must always be proximate
and live link between the effects of cruelty based on
dowry demand and the concerned death. In the case of
Hira Lal & Ors. vs. State(Govt. of NCT) Delhi, (2003) 8
SCC 80, in paragraph (9) it was observed as under:-
"9. A conjoint reading of Section 113-B of the Evidence
Act and Section 304-B IPC shows that there must be
material to show that soon before her death the victim
was subjected to cruelty or harassment. The
prosecution has to rule out the possibility of a natural or
accidental death so as to bring it within the purview of
"death occurring otherwise than in normal
circumstances". The expression "soon before" is very
relevant where Section 113-B 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 any fixed period, and that brings in the
importance of a proximity test both for the proof of an
offence of dowry death as well as for raising a
presumption under Section 113-B of the Evidence Act.
The expression "soon before her death" used in the
substantive Section 304-B IPC and Section 113- B of
the Evidence Act is present with the idea of proximity
test. No definite period has been indicated and the
expression "soon before" is 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 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. If 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."
16. Same principle was also expressed in State of A.P.
vs. Raj Gopal Asawa & Anr., (2004) 4 SCC 470;
Balwant Singh & Anr. vs. State of Punjab, (2004) 7 SCC
724, Kaliyaperumal & Anr. vs. State of Tamil Nadu,
(2004) 9 SCC 157; Kamesh Panjiyar @ Kamlesh
Panjiyar vs. State of Bihar, (2005) 2 SCC 388; Harjit
Singh vs. State of Punjab, (2006) 1 SCC 463; Biswajit
Halder @ Babu Halder & Ors. vs. State of West Bengal,
(2008) 1 SCC 202 and Narayanamurthy vs. State of
Karnataka & Anr, (2008) 16 SCC 512.
17. Applying these principles to the instant case, we find
that there is no evidence as to the demand of dowry or
cruelty and that deceased Karamjit Kaur was subjected
to dowry harassment "soon before her death". Except
the demand of scooter, there is nothing on record to
substantiate the allegation of dowry demand. Assuming
that there was demand of dowry, in our view, it can only
be attributed to the husband-Jagsir Singh who in all
probability could have demanded the same for his use.
In the absence of any evidence that the deceased was
treated with cruelty or harassment in connection with
the demand of dowry "soon before her death" by the
appellants, the conviction of the appellants under
Section 304B IPC cannot be sustained. The trial court
and the High Court have not analyzed the evidence in
the light of the essential ingredients of Section 304B
IPC and the conviction of the appellants under Section
304B IPC is liable to be set aside."
13. Admittedly, in the present case the deceased died within seven
years of her marriage due to burn injuries. However, there is no
conclusive piece of evidence which could suggest that soon before her
death she was subjected to cruelty by the accused persons, which is
the sine qua non for attracting conviction under Section 304B of IPC. In
the case in hand, as per evidence of PWs-1, 2, 7, 8 & 15 only it has
come that the deceased used to remain disturbed and complain about
the behaviour of the accused persons that they taunt her saying that
the articles brought by her are not of good quality. Thus, there is no
evidence that soon before her death, the deceased was subjected to
cruelty or harassment by the accused persons. True it is that there is
some delay on the part of the accused persons in taking the deceased
to hospital after the incident but that itself is not good enough to hold
that it is they who burnt the deceased or subjected her to cruelty in
connection with demand of dowry soon before her death and as such,
would not ipso facto constitute the offence under Section 304B of IPC.
Rather from the dying declaration as well as statement under Section
161 of Cr.P.C. of the deceased it is clear that she caught fire
accidentally while boiling milk for her son. In these circumstances, the
basic ingredients for attracting the offence under Section 304B of IPC
are completely missing in this case.
14. So far as charge under Section 306 of IPC is concerned, in order
to convict any person for instigating any person to commit suicide, it is
to be established that the victim committed suicide. However, in the
present case, as already discussed above, the deceased did not
commit suicide but got burnt accidentally while boiling milk on the gas-
stove and further, there is no legally admissible and cogent evidence to
show that she was being harassed or ill-treated by the accused
persons to such an extent where she was left with no other option but
to put an end to her life. Being so, offence under Section 306 of IPC is
also not made out against the appellants.
15. As for offence under Section 498A of IPC, from a bare perusal of
Sec. 498A as enshrined in IPC, it can be said that for attracting
Explanation (a) of Sec. 498A, the cruelty has to be of such gravity as is
likely to drive a woman to commit suicide or to cause grave injury or
danger to her life, limb or health. Explanation (b) to Sec. 498A is
attracted only where harassment is shown to have been committed for
the purpose of coercing a woman to meet any unlawful demand for any
property or valuable security or because such demands have not been
met. Thus, harassment in order to constitute cruelty under Explanation
(b) must have nexus with the unlawful demand of any property or
valuable security and if this is missing, the case will fall beyond the
scope of Sec. 498A IPC.
From the evidence on record it reflects that the prosecution
witnesses have made only general and omnibus allegations against
the accused persons that they did not like the articles given to the
deceased at the time of marriage and their behaviour was not proper.
No specific allegation is there against the accused persons that they
were harassing or subjecting the deceased to cruelty for non-fulfillment
of a particular demand or for any other reason. The allegations leveled
against them are not of such a nature, which even if taken to be true,
would tantamount to harassment or cruelty, making them liable for
conviction under Section 498A of IPC. The prosecution has not been
able to prove this charge also by adducing proper evidence. Thus,
considering the quality and nature of evidence adduced in respect of
charge under Section 498A of IPC, we are of the opinion that the
accused persons are entitled to be acquitted of this charge also by
giving them benefit of doubt.
16. In the given facts and circumstances of the case as also in view
of the aforesaid discussion, we further find no substance in the
argument of counsel for the complainant that the trial Court was under
an obligation to frame charge under Section 304A of IPC against the
accused persons.
.
17. On the basis of aforesaid discussion, we are of the opinion that the trial Court was fully justified in acquitting the accused persons of the charges under Section 304B and 306 of IPC, but has fallen in error while holding them guilty under Section 498A of IPC.
18. In the result:
Cr.A.No.892/2000 preferred by accused/appellants is allowed. They are acquitted of the charge under Section 498A of IPC by giving them benefit of doubt. They are reported to be on bail, therefore, their bail bonds stand discharged and they need not surrender.
Cr.A.No.755/2005 preferred by the State and Cr.R.No.869/2000 preferred by the complainant being without substance are liable to be dismissed and are dismissed as such.
Sd/ Sd/
(Pritinker Diwaker) (R.C.S. Samant)
Judge Judge
Khan