1 2025:CGHC:17572 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 362 of 2003 Reserved on 17.01.2025 Pronounced on 16.04.2025 1 - Deleted (Ashok Chand Gayeen ) Honble Court Order Dated 03/03/2023. 2 - Dhananjay Gayeen S/o Shrinath Aged About 48 Years R/o Village Ajirma, P.S. Jainagar, District Surguja Chhattisgarh. 3 - Kalpana Gayeen W/o Dhananjay Aged About 40 Years R/o Village Ajirma, P.S. Jainagar, District Surguja Chhattisgarh. ... Appellants versus 1 - State Of Chhattisgarh Through P.S. Jainagar, District Surguja Chhattisgarh. ... Respondent(s) For Appellants : Ms. Hamida Siddiqui, Advocate For Respondent(s) : Mr. Kalpesh Ruparel, P. L. ({Hon’ble Shri Justice Sachin Singh Rajput}) CAV JUDGMENT 1. This is an appeal preferred by the accused/appellants under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment impugned dated 10.03.2003 passed by learned First Additional Sessions Judge, Surajpur, District- Surguja in Sessions Trial No. 350/2001. By the impugned judgment, the appellants were convicted under Section 304-B of IPC and sentenced them to undergo RI for 7 years with fine amount of Rs.500/- with default stipulations. Three accused persons were put to trial and convicted by the trial Court as stated above. During pendency of the appeal, appellant No.1 Ashok has passed away. His appeal stood abated. 2 2. Fact of the case in nutshell is that in the morning of 15.07.2001 the father-in- law (appellant No.2-Dhananjay) of the deceased (Kranti) had gone to field. Ashok (appellant No.1), Kranti and Kalpana (appellant No.3) were present in the house. At about 10-11 am, Dhananjay came to his house to have food, Ashok and Kranti were washing clothes near the bathroom. Dhananjay's wife Kalpana asked Kranti to give food to her father-in-law. The deceased Kranti went behind the house and did not return. Her whereabouts and relatives were searched but no trace of her was found and she has not returned home. Then on 16.07.2001 a missing report was lodged by appellant Ashok in Police Station. On 17.07.2001 in the morning, when Dhananjay went near the well of his house, he saw that Kranti's dead body was floating in the well. A Merg report was lodged in Police Station, on the basis of which FIR (Ex.P-10) was registered. Dead body Panchnama (Ex.P-9) was prepared. Investigation was set on motion, Scientific report (Ex.P-11) was prepared. Postmortem of dead body was done and vide Ex. P-7 report was given. A case was registered against the accused/appellants under Sections 498 A, 304 B read with Section 34 of IPC. The tibia bone of the deceased and the water of the well were sent to Forensic Science Laboratory for chemical examination. The completion of investigation resulting in filing of charge-sheet followed by framing of charge under Section 304-B IPC. The accused/appellants however, denied the charge framed against them and claimed for trial. 3. So as to establish its case, the prosecution has examined as many as 18 witnesses and exhibited 15 documents. The statement of the accused/appellants under Section 313 CrPC was also recorded where they pleaded their innocence and false implication in the case. 4. By the judgment impugned learned Court below has held the accused/appellants guilty and imposed the sentence as described above which is challenged before this Court by the appellants. 3 5. Ms. Hamida Siddiqui, learned counsel for the appellants submits that the prosecution was not able to bring home the guilt of the accused persons and the ingredients of Section 304-B of IPC has not been proved by the prosecution beyond reasonable doubt. She submits that from the Postmortem report of deceased, it is quite vivid that the death of the deceased is homicidal in nature and she was lastly seen with the appellant No.1-Ashok (Deceased) and there is nothing on record to suggest that appellants in any manner treated the deceased with cruelty on account of dowry soon before her death. She submits that the deceased was raised by her maternal grandfather and as she has unfortunately died, as a result the maternal grandfather (PW-1) and mother of the deceased (PW-2) to certain extent deposed against the appellants that it would not mean that the deceased was subjected to cruelty on account of dowry. She further submits that if anything had happened it would be between the husband and wife. She submits that independent witnesses PW-4 & PW- 5 have very categorically deposed that they have not seen that the deceased Kranti was treated with cruelty on account of dowry by the appellants and the appellants are belonging to lower state of society and the allegations which are leveled cannot be accepted. She further submits that the marriage took place 3-4 months prior to the death of the deceased and which was not liked by any of the family members. Reading from the evidences of the witnesses she tried to submit that the appellants cannot be held guilty for the aforesaid crime. To buttress her submissions, she placed reliance upon the decision of Hon’ble Supreme Court in the case of Sher Singh @ Partapa Vs. State of Haryana reported in (2015) 3 SCC 724. She submits that the appellants have already served for 3 years 8 months in jail. 6. Per contra learned counsel for the State supports the impugned judgment and submits that from the evidence of PW-1 and PW-2, the allegations of cruelty meted out to the deceased Kranti on account of demand of dowry soon before her death is clearly established. He submits that soon before the death would not ipso facto mean that immediately before the death. He submits that there has to be proximity and nearness from the cruelty meted out and the death of the deceased. The prosecution was able 4 to bring home the guilt of the appellants beyond reasonable doubt. He placed reliance upon the decision of Hon’ble Supreme Court in the case of Bhupendra Vs. State of Madhya Pradesh reported in (2014) 2 SCC 106. 7. Heard learned counsel for the parties and perused the record. 8. Section 304-B IPC deals with dowry death which 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 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." 9. Section 498A of IPC and section 113B of Evidence Act, 1872 is required to be quoted below:- “498-A. Husband or relative of husband of a woman subjecting her to cruelty — Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purposes of this section, “cruelty” means — (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 113B. 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 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. 5 Explanation.—For the purposes of this section, “dowry death” shall have the same meaning as in Section 304-B of Indian Penal Code (45 of 1860)”. 10. The interpretation of Sections 304B and 498A of IPC fell for consideration before the Hon’ble Supreme Court in case of Baijnath Vs. State of M.P. reported in (2017) 1 SCC 101 in which conditions precedent to establish dowry death is reiterated as under:- “25. Whereas in the offence of dowry death defined by Section 304-B of the Code, the ingredients thereof are: (i) death of the woman concerned is by any burns or bodily injury or by any cause other than in normal circumstances, and (ii) is within seven years of her marriage, and (iii) that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of the husband for, or in connection with, any demand for dowry. 26. Patently thus, cruelty or harassment of the lady by her husband or his relative for or in connection with any demand for any property or valuable security as a demand for dowry or in connection therewith is the common constituent of both the offences. 27. The expression “dowry” is ordained to have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. The expression “cruelty”, as explained, contains in its expanse, apart from the conduct of the tormentor, the consequences precipitated thereby qua the lady subjected thereto. Be that as it may, cruelty or harassment by the husband or any relative of his for or in connection with any demand of dowry, to reiterate, is the gravamen of the two offences. 11. Section 113B of Indian Evidence Act, 1872 was elaborately discussed by the Hon’ble Supreme Court in the aforesaid case as under:- “29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. 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 6 presumption of commission of the offence of dowry death by the person charged therewith. 30. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section113-B of the Act against the accused. Proof of cruelty or harassment by the husband or his relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof. 31. The legislative primature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person charged, cannot be overeased to gloss over and condone its failure to prove credibly, the basic facts enumerated in the sections involved, lest justice is the casualty”. 12.In paragraph 32 of the judgment Hon’ble Supreme Court dealt with the combined reading of Section 304B IPC and Section 113B of Indian Evidence Act, 1872 which is reproduced herein below:- “32. This Court while often dwelling on the scope and purport of Section 304-B of the Code and Section113-B 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 304-B as in Shindo v. State of Punjab [Shindo v. State of Punjab, (2011) 11 SCC 517 : (2011) 3 SCC (Cri) 394] and echoed in Rajeev Kumar v. State of Haryana [Rajeev Kumar v. State of Haryana, (2013) 16 SCC 640 : (2014) 6 SCC (Cri) 346]. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304-B 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 113-B of the Act. It referred to with approval, the earlier decision of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao [K. Prema S. Rao v. Yadla Srinivasa Rao, (2003) 1 SCC 217 : 2003 SCC (Cri) 271] to the effect that to attract the provision of Section 304-B 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”. 7 13. The learned trial Court relied upon the testimony of Sudhir Ranjan (PW1) and Gaytri Barman (PW2) and drew the presumption under section 113B of the Indian Evidence Act, 1872 to sustain conviction of the appellant. In light of the legal proposition as enumerated in case of Baijnath (Supra) the matter needs to be examined as to whether prosecution was able to make out a case which falls in the parameters where the statutory presumption can be raised to sustain the conviction of the appellants. 14. Sudhir Ranjan (PW-1) deposed in his statement before the Court that he knows the appellants and the deceased Kranti Devi is his granddaughter, she was raised by him as father of the deceased Kranti had died. He further deposed that Kranti was married with Ashok (Deceased-appellant) and after three months of marriage, Kranti Devi died. He further deposed that there was love affair between Kranti and Ashok, therefore, she was married to Ashok only. He deposed that after the marriage till her death Kranti never come to their house. He further deposed that he asked the accused persons for Vidai (a woman departure from her parental house to in-laws house) then accused persons told that they had performed marriage of their elder daughter in which they had given Cooler, Scooter, Almari and asked them to give the same articles and then they would take Kranti with them through vidai. He deposed that Kranti was tortured on account of dowry. He deposed that mother of Kranti namely Geeta (PW-3) from village Sakalo had gone to meet the deceased- Kranti but she was not allowed to meet Kranti which was informed by Geeta to him. He further deposed that their houses are in the same village at a distance of one furlong. In para 7 of his deposition he happens to hear about crying and shouting of the deceased. However, he did not go to see her. One Deepali a girl aged about 6-7 years informed him on Sunday that a day prior, that in-laws of Kranti and husband were abusing her and Kranti was crying. In further 8 deposition and examination of chief he does not speak about any cruelty or torture committed by the appellants on account of demand of dowry. In cross- examination he admits that he was present at the time of marriage and no dispute was raised by the appellants with regard to dowry. He also admitted that deceased- Kranti and Ashok (deceased-appellant) were married happily. He admitted that after the marriage, he had not gone to house of Ashok (deceased- appellant). He himself stated that the appellants used to beat the deceased as he had not gone there. He further admitted that in this regard he has not convened any Panchayat in the society neither took any help for advising. He denied the suggestion that he was angry on account of marriage therefore, in order to implicate the appellants he is telling about the Marpit related to Kranti. He happens to state that when Kranti shouted that she is being beaten, he made a report to SP in writing and oral. He stated that factum of shouting of Kranti was told by him to the villagers Shishir Haldhar, Nagendra Barman and Nani Barman. Lengthy cross-examination was made by the counsel for the appellants in which the defence tried to be projected is that as the marriage between Ashok (deceased-appellant) and deceased- Kranti was not liked by PW-1, the false report was lodged. From reading of entire statement of this witness the fact which emerges that according to his witness the deceased- Kranti was being assaulted by the appellants but the same has not been witnessed by him and at the time of marriage no demand was made with regard to dowry and further admitted that the Ashok (deceased-appellant) and deceased- Kranti was in love and they happily married. Once he states that the demand was made to him but from the statement of this witness it does not appear that the deceased was subjected to cruelty on account of demand of dowry. Though this witness suggests that there was some domestic dispute and assault made to the deceased but not in front of him. 9 15. The next witness is Gaytri Barman (PW-2) who deposed in her statement that she knows the appellants. She deposed that after the marriage everything was all right for a few days after that they used to quarrel with her. She further deposed that after marriage the deceased Kranti neither went to her maternal grandfather PW-1 nor her mother PW-3 or never visited her house. She further deposed that elder father of deceased Kranti had gone to bring her but the appellants did not allow Kranti to go with them and she further deposed that the appellants used to say that they have given Cooler, Fridge, Scooter in dowry therefore, they also give the same. She shown suspicion that deceased Kranti Devi was killed by the appellants. In cross examination she admits that there is one lane difference between her house and appellants’ house. Thereafter questions were asked with regard to distance between the houses and the well and dimension of well where the dead body was found. Nothing is brought on record to substantiate that any demand was made. In Para 12 of her examination she denied that Ashok and Kranti got married with their consent. She herself stated that Kranti was taken by Ashok and thereafter with the consent of family of Ashok (deceased-appellant) and Kranti marriage was performed. In Para 15 of her statement she states that no complaint was made to the villagers with regard to demand of dowry. She also deposed that demand of Cooler, Fridge and TV etc was not made in front of her. She denied the suggestion that Kranti performed marriage on her own will, therefore, she stopped visiting to the house of appellants. From analysis of this witness it come to fore that she came to know with regard to demand of Cooler, Fridge etc. when the grandfather (PW-1) and elder father (Tauji) went to bring Kranti for Vidai. She categorically deposed that no demand was made in front of her. 16. Geeta Biswas (PW-3) is the mother of deceased who deposed in her statement before the Court that after the marriage, the appellants used to quarrel with the 10 deceased- Kranti and demand dowry. After two months of marriage, she had gone to meet Kranti but she was not allowed to meet Kranti. She further stated that Vidai was not performed as dowry was not given. The appellants used to say that they have given Cooler, Fridge etc to her daughter in dowry, therefore, the same articles be given to them. In her cross-examination she admits that factum of demand of Cooler, Fridge etc was narrated to police, however if it is not mentioned in police statement Ex. D-1 she is not able to tell the reason. In Para 19 she admits that Kranti on her own will married to Ashok (deceased- appellant). She also admits that they were also agreed for the marriage. It is to be noted that a question was put that after the marriage they were not meeting with Kranti and did not inquire about her, therefore, Kranti used to remain sad, in that answer this witness remained quite. 17. PW-4 (Jyoti Chand Verma) in Para-3 of his statement deposed that after the marriage till death of deceased he has not heard any quarrel. He further deposed that a day prior to the death, the husband Ashok (deceased-appellant) was ploughing in the field and the deceased was present. The deceased Ashok was numbering one lakh- one lakh but how he cannot tell. He has not heard about any quarrel. He further deposed that in the evening appellant Kalpana told that her daughter-in-law is not being found and missing since morning. He advised her to look after her with the relatives. This witness was declared hostile. In the cross-examination he admits to the fact that on Saturday when the deceased-appellant was ploughing in the field he was saying to the deceased to bring one lakh from her grandparents. He himself stated that he used to demand one lakh. 18.Vidhan Biswas (PW-5) in his examination in chief does not speak anything with regard to demand of dowry soon before the death of deceased. He simply 11 stated that as dowry was not given, hence it is possible that the appellants have killed the deceased and threw in the well. In Para 19 of cross-examination he admits that he had gone to house of Ashok (deceased-appellant) after 10-15 days of marriage and met Kranti and her mother-in-law they offered him tea. He also admits the fact that at that time Kranti did not make any complaint. He further deposed that from behaviour of Kranti it appears that she was happy. Apart from these above witnesses, the other witnesses have not spoken anything with regard to demand of dowry. 19. In the case in hand, the unnatural death of the deceased is not in dispute which occurred within 7 years of marriage as held by Hon’ble Supreme Court in above stated decisions to attract presumption under Section 113 B of Indian Evidence Act, 1872 the ingredients as stated above should be satisfied. The question before this Court as to whether the prosecution was able to bring home the guilt of appellants beyond reasonable doubt fulfilling the ingredients of Section 304 B of IPC to invoke the statutory presumption under Section 113 B of Indian Evidence Act. The father of the deceased had died and therefore she was raised by her maternal grandfather (PW-1). His statement clearly indicates that he made aware of the fact that the deceased was subjected to torture. He admits that at the time of marriage there was no dispute with regard to dowry and also admits that the marriage took place with the will of deceased and deceased-appellant and they were in love relationship. At one stroke, he says that when he had gone to bring home the deceased he was told by appellants to give Cooler, Fridge, TV etc. as the same was given by the appellants in the marriage of their daughter. On careful perusal of this witness it does not indicate that the deceased was subjected to torture by the appellants on account of demand of dowry and the statement of other witnesses also does not throw any light in this regard and it is apparent from the statement of other 12 witnesses including mother (PW-3) and Gaytri (PW-2). The only thing which emerges from the record and that too only a presumption that the deceased was subjected to cruelty. From cumulative assessment of these witnesses it appears that there may be some domestic dispute. PW-5 has categorically deposed that when he went to house of Ashok (deceased-appellant) where he met the deceased she was seems to be happy. When a question was put to the Mother of deceased that the deceased was sad because the family members were not meeting with her, this witness remained quite. Of course PW-1 has stated that when he heard the voice of the deceased, he made a complaint to the SP but that has not been proved in accordance with law. Even otherwise ingredients of Section 304 B IPC as enumerated in the above cited judgments, in the opinion of this Court has not been fulfilled by the prosecution. The story which was put forth and also from material available on record in light of statement of Jyoti Chand Verma (PW-4) that a day before the dead body was found, the deceased was seen with the appellant who ploughing in the field. The time period between the marriage and death of deceased is very much low. Therefore, the question of demand of dowry soon before the death is not a material factor but the prosecution were obliged to establish that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of the husband for, or in connection with, any demand for dowry. Here in this case as admitted by the witnesses after the marriage till her death the deceased has not come to their house, therefore, it cannot be said from the statement of these witnesses that the deceased was subjected to cruelty on account of demand of dowry soon before her death. 20. The learned trial Court placed much reliance upon the witnesses to assume that deceased was subjected to cruelty on account of demand of dowry and drew the presumption of 113 B of Indian Evidence Act which in the opinion of 13 this Court is misconceived and misplaced. Therefore, the finding recorded by the trial Court based on above assessment of evidence can not sustain and the appellants are entitled to give benefit of doubt. With due respect the case law cited by the learned counsel for the respondent would not come to help in the given facts and circumstances of this case and being distinguishable on facts. 21. In view of the above, the appeal is allowed and the appellants are acquitted from the charge. The impugned judgment is hereby set aside. Appellants are said to be on bail during pendency of the appeal. Their bail bond shall be kept alive for six months as per provision of section 481 of BNSS, 2023. The record of the trial Court with copy of the judgment be sent back for information and compliance. Sd/- (Sachin Singh Rajput) JUDGE Parul PARUL MITTAL Digitally signed by PARUL MITTAL Date: 2025.04.17 17:30:10 +0530