Chattisgarh High Court
Tulsi Prasad And Another vs State Of Chhattisgarh on 15 September, 2022
CRA 1039/2002
-1-
AFR
HIGH COURT of CHHATTISGARH, BILASPUR
CRA No. 1039 of 2002
1. Tulsi Prasad S/o Ram Khilawan Yadav, aged about 22 years.
2. Smt. Sumena Bai W/o Ram Khilawan Yadav, aged about 45 years.
Both R/o village Kanhar Bahra, P.S. Khadgavan, Dist. Korea,
Chhattisgarh
------Appellants
VERSUS
• State of Chhattisgarh, through: Police Station- Khadgavan, District
Korea, Chhattisgarh
-------Respondent
For Appellants : Mr. Parag Kotecha, Advocate with Mr.
Alok Tiwari, Adv.
For Non-applicant/State: Mr. Himanshu Sharma, Panel Lawyer
S.B.: Hon'ble Shri Parth Prateem Sahu, Judge
ORDER
15/09/2022
1. Appellants in this appeal have called in question the judgment and conviction dated 06.09.2002 passed by learned Additional Sessions Judge, Manendragarh, Dist. Korea, Chhattisgarh, in Sessions Trial No. 159/2001, whereby learned Court below convicted the appellants for commission of offence under Section 304(B) of Indian Penal Code and sentenced them as below:
Conviction Sentence
U/S 304(B) of IPC R.I. for 10 years to each appellant
2. Facts relevant for disposal of this appeal are that Saraswati Bai (deceased) was married to appellant No. 1, Tulsi Prasad, in the month of April 1999. On 19.10.2000, Saraswati Bai jumped into the well and died due to drowning. The incident was reported to concerned police station. Police pulled out the dead body of deceased, sent it for post mortem. Vide Ext. P-1, post mortem report, doctor opined the death CRA 1039/2002 -2- due to Asphyxia (drowning), suicidal in nature. The merg was reported by appellant No. 1 and after merg enquiry, F.I.R. was registered against appellants for offence defined under Section 304(B) and 34 of IPC. After completion of investigation, police submitted Final Report against appellants for aforementioned offences. Trial court based on the material available in the charge-sheet framed charges under the aforementioned Sections against appellants to which they denied. After conclusion of the trial, learned court below held the appellants guilty of the charges under Section 304(B) of IPC, convicted and sentenced them for the period as mentioned in above paragraph 1.
3. Learned counsel for appellants would submit that appellants have been falsely implicated in the crime. They contended that appellants at no point of time had made any demand of dowry and there is no such allegation against them in the evidence of the family members of deceased ie. Father and Brother. It is submitted that in evidence available on record, it has come that the deceased frequently visited her parental house and few days earlier to the incident brother of deceased came to her matrimonial house to take her to parental house but looking to the agricultural activities her in-laws refused to send the deceased along with her brother and aggrieved by that she might have taken such an extreme step. It is also contended that PW- 2, Sacchu Prasad Yadav, brother of deceased, in his evidence, has not levelled any allegation, that when he visited matrimonial house of deceased few days before the incident, she made any complaint with regard to treating her with cruelty or harassing her on account of demand of dowry. There is also no allegation that the deceased was subjected to cruelty soon before her death in connection with demand of dowry and therefore also the provisions of Section 304(B) of IPC would not be attracted. Learned trial Court misreading the evidence available on record, recorded a finding that just before the death deceased was harassed in connection with demand of dowry. Finding CRA 1039/2002 -3- recorded by the trial Court is contrary to the evidence available on record, hence, the conviction of appellants is not sustainable. In support of his contention, learned counsel for appellants placed reliance on decisions of Hon'ble Supreme Court in cases of Harjit Singh vs. State of Punjab reported in 2005 AIR SCW 6470, Manohar Lal vs. State of Haryana reported in 2014 (9) SCC 645, Baijnath and others vs. State of Madhya Pradesh reported in AIR 2016 SC 5313.
4. Mr. Himanshu Sharma, learned State counsel, opposing the submissions of learned counsel for appellants, would submit that learned trial Court while appreciating the evidence of PW-1, Sacchu Prasad, brother of deceased; PW-2, Doodhnath Yadav, brother; PW-3, Ram Prasad, father of deceased; PW-4, Raghunath Prasad; and PW- 8, Shiv Prasad, have rightly concluded that the appellants used to harass the deceased for demand of dowry. The finding recorded by the trial Court does not call for any interference. He also referred to the deposition of PW-9, Shiv Kumar Yadav, co-brother of appellant No.
1.
5. I have heard learned counsel for the parties and also perused the record of trial Court.
6. To appreciate the submission of learned counsel for appellants, I would like to first consider the facts of the case that marriage of deceased with appellant No. 1 was of April 1999 and she committed suicide on 19.10.2000 ie., within 1½ year of her marriage. Sacchu Prasad Yadav, PW-1, in his statement, made allegation that the deceased was being harassed stating that even being uneducated elder brother of appellant No. 1 got five-acre of land in dowry. This witness further stated that when father of appellant No. 1 came to his house for taking his sister to her matrimonial house, he made complaint of conduct of appellant No. 1. Making complaint to father of CRA 1039/2002 -4- appellant No. 1 is of about 1-2 months prior to the incident. Similar statement has been made by PW-2, Doodhnath, brother, who in his statement stated that his father made complaint to father of appellant No. 1 that the deceased was being harassed by appellants for demand of dowry. PW-3, father of deceased, in his evidence has made allegation against appellants that she was being harassed telling her that elder brother of appellant No. 1 got five-acre of land in dowry. He also stated that appellant No. 1 first came to bring his wife but he did not send her along with him because he wanted to make some complaint to father of appellant No. 1. PW-4, Raghunath Prasad, who is neighbor of parental house of deceased, in his evidence made allegation that the deceased informed him that appellant No. 1 has not received vehicle or TV. Shiv Prasad, PW-8, uncle of deceased also made allegation that she was being harassed by appellants. PW-9, Shiv Kumar Yadav levelled allegation that appellant No. 1 has stated him to inform parents of deceased for giving vehicle in dowry. He further stated that after 1-2 months he received information of falling of deceased into the well.
7. From perusal of the evidence of prosecution witnesses available in record would show that, brothers and father of deceased have not made allegation against appellants of making demand of vehicle or TV in the dowry but have only levelled allegation of harassment stating that elder brother of appellant No. 1 got five-acre of land in dowry. PW-3, father of deceased, in his evidence stated that he sent his deceased daughter after teeja festival along with father of appellant No. 1 to her matrimonial house which is 1-2 months prior to the incident. In the month of October. PW-2, brother of deceased, went to her matrimonial home to bring her to her parental house which was denied by father of appellant No. 1 stating that kartik month (hindi calendar month) is going on and there are agricultural works and refused to send her along with him. He also stated that the deceased CRA 1039/2002 -5- was eager to go to her parents' house along with PW-2. This witness in his statement stated that at that time deceased only complained about harassment. He has not made any allegation of deceased specifically complaining of, that she was being harassed in connection with demand of dowry. In paragraph 7 of the cross-examination, this witness admitted that when her father-in-law has refused to send her to her parents house along with PW-2, she was weeping. Witness PW-2 further admitted that after marriage deceased visited her parents' house 7-8 times and on each of the occasion she resided there for more than 5-6 days. Deceased committed suicide after one day of going back of her brother, being refused to send her to parental village. PW-3, Ram Prasad, in his evidence stated that PW-2 when went to bring his sister stayed there for about 02 days and thereafter returned back. Further, in paragraph 6 this witness stated that when deceased was in her parents' house during teeja and janmashtmi festival, appellant No. 1 went to bring her back to matrimonial house but this witness refused to send her and thereafter appellant No. 1 returned back in the evening itself. In cross-examination, this witness has not made any allegation that he had not sent her daughter with appellant No. 1 because he wanted a visit of father of appellant No. 1 to his house so that he could complain him of the conduct of appellant No. 1.
8. Section 113-B of the Evidence Act presumes as to dowry death, provision of which is extracted below for ready reference.
"113B. 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 has 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 304B, of the Indian Penal Code, (45 of 1860).]"
9. The aforementioned provision mentions that the person to be treated CRA 1039/2002 -6- with cruelty or harassment for, or in connection with, any demand of dowry soon before her death.
10. Provision of Section 304-B of IPC is also extracted below for ready reference.
"304B. 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 purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever 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."
11. In the aforementioned provision, it is provided that if a death of 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 it is subjected to cruelty or harassment.
12. A conjoint reading of both the provisions would show that it would not be enough that harassment or cruelty was caused to the woman with a demand for dowry at some time for invoking Section 304-B of IPC. But it is for the prosecution to prove that it happened "soon before her death". The proximity to her death is the pivot indicated by that expression and is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. Hon'ble Supreme Court in case of Hira Lal and others vs. State (Govt. of NCT) Delhi reported in 2003 AIR SCW 3570 has observed CRA 1039/2002 -7- that the expression "soon before her death" used in the substantive Section 304-B of IPC and Section 113B 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 definite. 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.
13. Hon'ble Supreme Court in case of Kaliyaperumal and Another vs. State of Tamil Nadu reported in (2004) 9 SCC 157 while considering the appeal against the conviction under Section 304-B of IPC has held thus:
"4. Section 304B IPC deals with dowry death which reads as follows:
"304B. 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 same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever 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 304B IPC, the essential ingredients are as follows:-
CRA 1039/2002-8-
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii)She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
Section 113B of the Evidence Act is also relevant for the case at hand. Both Section 304B IPC and Section 113B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B reads as follows:-
"113B: 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 has 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 (45 of 1860)."
The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10th August, 1988 on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113B in the Evidence Act has been inserted. As per the definition of 'dowry death' in Section 304B IPC and the wording in the presumptive Section 113B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the Court must be CRA 1039/2002 -9- whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B IPC).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
5. A conjoint reading of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113B of the Evidence Act and Section 304B IPC are pressed into service. 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 prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket 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 113B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304B IPC and Section 113B 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 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 has received the goods knowing them to be stolen, unless he can account for his 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 concerned cruelty or harassment 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 concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence."
CRA 1039/2002-10-
14. Yet, in case of Manohar Lal (supra) considering the judgment in case of Hira Lal (supra) with approval has held thus:
"20. 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 vs. State (Govt. of NCT), Delhi, (2003) 8 SCC 80,which reads as under:
"8. 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, 1961 (28 of 1961).
(2) Whoever 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:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her CRA 1039/2002 -11- 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 43 of 1986 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. [pic]Explanation.--For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)." The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform".
Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304- B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death." Similar observation was made by CRA 1039/2002 -12- this Court in Balwant Singh and Another vs. State of Punjab (2004) 7 SCC 724. In the said case this Court held: (SCC p. 728, para 10) "10. These decisions and other decisions of this Court do lay down the proximity test. It has been reiterated in several decisions of this Court that "soon before" is an expression which permits of elasticity, and therefore the proximity test has to be applied keeping in view the facts and circumstances of each case. The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim." "
22. The statement of the complainant PW.1 is general and not specific. No specific incidence has been indicated suggesting the cruelty or harassment made by the accused-Manohar Lal. Her statement is not reliable and not trustworthy. Though the allegation of demand of dowry was made none of the witnesses including PW.1 stated that the deceased was harassed "soon before her death" for or in connection with demand of dowry. The accused appellant was charge-sheeted under Sections 498-A and 304-B IPC but the Trial Court has not convicted the accused under Section 498-A. In this background, we are of the opinion that the prosecution has miserably failed to prove that the accused harassed the deceased soon before her death for or in connection with a demand of dowry."
15. In case of Baijnath (supra), Hon'ble Supreme Court has held that the presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death.
Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith. Further, the Hon'ble Supreme Court has held thus:
"35. 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 first spell out the ingredients of the offence of Section 304B as in Shindo Alias Sawinder Kaur and another Vs. State of Punjab - (2011) 11 SCC 517 and echoed in Rajeev Kumar Vs. State of Haryana - (2013) 16 SCC 640. In the CRA 1039/2002 -13- 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 offence 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 Vs. Yadla Srinivasa Rao - (2003) 1 SCC 217 to the effect that to attract the provision of Section 304B of the Code, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment "in connection with the demand for dowry".
40. In all, tested on the overall scrutiny of the evidence as a whole, in our comprehension, the conviction of the accused persons including the appellants herein on the basis of the materials on record would not be out of risk. To reiterate, the prosecution has failed to prove the crucial ingredient of cruelty and harassment by direct and cogent evidence thereby disentitling itself to the benefit of the statutory presumption available under Section 113B of the Act."
16. If the facts of the case are tested in the light of the aforementioned rulings of the Supreme Court wherein as per evidence available on record it is clearly appearing that the deceased returned back from her parental house to her matrimonial house about 1½ months prior to date of incident. PW-2, brother of deceased, who went to bring her back to her parental house stayed their for about two-days as stated by PW-3 (father of deceased); PW-2 in his evidence before the Court has not made any specific statement that the deceased informed him of any harassment or treating her with cruelty for demand of dowry but he only stated that she complained about being harassed. In his statement, it has also come that the father-in-law of deceased for some other reason ie., house hold work on account of on-going agricultural activities, has refused to send her along with her brother PW-2 and for that reason she was weeping. The cause of committing suicide, if any, appears to be of non-sending the deceased to her parents' house.
CRA 1039/2002-14-
17. The case law relied upon by the counsel for Respondent in K. Prema S. Rao and another vs. Yadla Srinivasa Rao reported in AIR 2003 SC 11 is on different set of facts, in that case the husband has forced the deceased to part with her land which she had received in her marriage as 'stridhana', and for that purpose concealed her postal mail that she was driven to commit suicide.
18. In the facts of the case, it is not ruled out that the prosecutrix was annoyed for not sending her to her parental house, there was no allegation on the part of PW-2, brother of deceased, to suggest that there was harassment or cruelty upon deceased in connection with demand of dowry soon before her death.
19. In the aforediscussion of facts and evidence available on record, I am of the considered view that prosecution has failed to prove the charges against appellants beyond reasonable doubt.
20. For the foregoing discussion, appeal is allowed. The impugned judgment and order dated 06.09.2002 is set aside. Appellants are acquitted of the charge under Section 304-B of IPC. Appellants are on bail, their bail bonds are discharged.
Sd/-
(Parth Prateem Sahu) Judge Pawan