1 2025:CGHC:34899 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on : 01-05-2025 Judgment delivered on : 22-07-2025 CRA No. 541 of 2007 1. Vimal Sen, S/o Late Sawarmal Sen, aged about 55 years, occupation – Saloon job. 2. Vikas Kumar Sen, S/o Vimal Kumar Sen, aged about 31 years, Occupation – Saloon job. 3. Smt. Chitra Sen, W/o Dinesh Kumar Sen, aged about 41 years, occupation – wife. All residents of Shikshak Nagar, Durg, Police Station Kotwali, Durg, Distt. Durg (CG) ... Appellants versus State Of Chhattisgarh Through Police Station-Durg, Distt. Durg (CG) ... Respondent For Appellant : Mrs. Fouzia Mirza, Sr. Adv. with Mr. Ali Afzal Mirza, Advocate. For Respondent : Mr. Devesh G. Kela, Panel Lawyer. 2 Hon'ble Smt. Justice Rajani Dubey, J CAV Judgment Challenge in this appeal is to the legality and validity of the judgment of conviction and order of sentence dated 19.6.2007 passed by the 10th Additional Sessions Judge (FTC), Durg in ST No. 251/2002 whereby each of the appellants stands convicted and sentenced as under: Conviction Sentence Under Section 304B of Indian Penal Code. RI for 10 years. Under Section 201 of Indian Penal Code. RI for 01 year, pay a fine of Rs.2000/- and in default thereof to suffer additional RI for 02 months. Both the sentences were directed to run concurrently. 02. Case of the prosecution, in brief, is that marriage of accused/appellant Vikas Kumar Sen was solemnized with Sunita (deceased) on 13.11.2000. At the time of marriage itself the accused persons demanded motorcycle in dowry, on which the complainant Shambhu Kumar Rajnidas (brother of the deceased) and her father assured them of giving motorcycle. However, after marriage the accused persons started harassing and torturing the deceased physically as well as mentally for not bringing motorcycle in dowry and killed her on 24.6.2001. Even despite request of the complainant for 3 preserving the dead body, the accused persons without informing the police performed her funeral on 24.6.2001 itself. On oral report being lodged by the complainant on 12.10.2001, the police registered the FIR under Sections 304B/34 and 201 of IPC against the accused persons and after completion of investigation, charge sheet under Sections 304B, 201/34 and 498A of IPC was filed against them. Learned trial Court framed charges under Sections 304B and 201 of IPC against the accused persons, which were abjured by them and they prayed for trial. 03. In order to substantiate its case the prosecution examined 12 witnesses. Statements of the accused were recorded under Section 313 of CrPC wherein they denied all the incriminating circumstances appearing against them in the prosecution case, pleaded innocence and false implication. In their defence, they examined three witnesses. 04. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the appellants as mentioned above. Hence this appeal. 05. Learned counsel for the appellants would submit that the impugned judgment is per se illegal and contrary to the material available on record. There are many contradictions and omissions in the statements of the prosecution witnesses which have been 4 overlooked by learned trial Court. The basic ingredients for attracting the offence under Sections 304B and 201 of IPC are extremely missing in this case. The evidence of PW-6 Shambhu, PW-7 Rajendra Kumar and PW-10 Anguri Devi, who are relatives of the deceased and as such, interested witnesses, ought to have been evaluated with great care and caution. They do not appear to be trustworthy witnesses as they have not made any explicit assertion about the dates when alleged demand of dowry was made by the appellants. The FIR was lodged with an inordinate delay without giving any satisfactory explanation therefor. The only allegation against them is that they were making persistent demand for motorcycle in dowry but the prosecution has failed to bring forth as to what kind of harassment or ill-treatment was being meted out to the deceased for not fulfilling this demand. The medical evidence lends no support to the prosecution case and rather it in favour of the appellants but the learned trial Court did not appreciate this fact. No injury was found on the body of the deceased. It has come in the evidence that funeral of the deceased was conducted in presence of her local guardian DW-1. She further argued that institution of second FIR with respect to the same incident and against the same accused persons when investigation was still going on, is neither proper nor legal as there is all possibility of false implication. Learned trial Court has not appreciated the evidence of DW-3 and the fact that the appellants filed an application under Section 91 of CrPC demanding copy of the earlier investigation and the trial 5 Court erred in shifting the burden of proof on the appellants. Therefore, looking to the nature and quality of evidence, the impugned judgment is not legally sustainable and the appellants deserve to be acquitted of all the charges. Reliance has been placed on the decision of the Hon’ble Supreme Court in the matter of Thulia Kali Vs. State of Tamil Nadu, (1972) 3 SCC 393; State of Andhra Pradesh Vs. M. Madhusudhan Rao, (2008) 15 SCC 582; Charan Singh Vs. State of Uttarakhand, 2023 SCC OnLine SC 454; Karan Singh Vs. State of Haryana, 2025 INSC 133 and the judgment dated 5.2.2025 of this Court in CRA No.205/2005 in the case of Santosh Kumar and others Vs. State of CG (2025:CGHC:6575). 06. On the other hand, learned counsel for the State opposing the contention of the appellants would submit that in view of oral and documentary evidence on record, the learned trial Court has rightly convicted and sentenced the appellants by the impugned judgment which calls for no interference by this Court. The present appeal being without any substance is liable to be dismissed. 07. Heard learned counsel for the parties and perused the material available on record. 08. It is clear from the record of learned trial Court that the appellants were charged under Sections 304B and 201 of IPC for 6 causing dowry death of deceased Sunita and disappearance of evidence of the crime. After appreciation of oral and documentary evidence, learned trial Court convicted and sentenced them under these sections as mentioned in para 1 of this judgment. 09. It is not disputed in this case that the deceased died on 24.6.2001 at her matrimonial house and FIR was lodged on 12.10.2001. As per prosecution case, death of the deceased occurred by any cause other than in normal circumstances within seven years of her marriage and the accused persons in order to cause disappearance of the evidence of crime performed her funeral on the same day. No postmortem was conducted by the prosecution in this case. 10. PW-4 Dr. Pradeep Kumar Dani states that on 24.6.2001 on being called he went to the house of the accused persons and examined Sunita Sen who was in a state of unconsciousness. On being asked she replied that she fell in the bathroom. There was no external injury on her body. Her pulse rate was 130 per minute, blood pressure was 60/40 and she was breathing with difficulty. Both her pupil were dilated and heart beat was very weak. There was no sensation on her sole. He advised for taking her to hospital vide Ex.P/3. In cross-examination he states that when he examined the patient, she had fallen into coma. 7 11. PW-11 Ku. Mamta Tiwari, Medical Officer in District Hospital, Durg states that on 24.6.2001 she was on emergency duty in district hospital from 8.30 am to 12.30 pm and during this period, no male or female patient in unconsciousness condition was brought to the emergency room. She states so on the basis of entry made from page No.289 to 291 of the MLC Register which was written by her. 12. PW-6 Shambhu Kumar Rajniwal, brother of the deceased, states that at the time of marriage of the deceased, almirah, bed, sofa set, gold-silver and cash of Rs.51,000/- were given in dowry. Her sister/deceased used to tell that the accused persons harass and torture her for dowry. On 22.6.2001 his sister/deceased telephoned him and said that the dowry articles be sent otherwise they would kill her, and only two days thereafter on 24.6.2001 Vimal Kumar Sen (father-in- law of the deceased) telephonically informed at 9 am that his sister/deceased has suffered heart attack and therefore, they all should come. He states that though he told them to preserve the body as they are reaching there tomorrow but they performed her funeral on the same day at 4 pm. In para 23 of his cross-examination he admits that on 22.6.2001 he made no complaint and on 24.6.2001 the phone call was attended by his mother Anguri Devi. In para 35 he states that he does not remember as to on what date he lodged the FIR. He denied the 8 suggestion that the deceased always used to praise the accused persons. 13. PW-7 Rajesh Kumar states that his sister Sunita used to weep and complain that the accused persons harass and torture her in connection with demand of motorcycle. In cross-examination he states that on 22.6.2001 his mother attended the phone call. He states that his maternal uncle Kailashchand, his son Lalchand and Laxmichand reside at Balod. He admits that marriage was performed at Balod as the maternal uncle reside there and he would be her local guardian. He admits that he was not present at the time of funeral and has no personal knowledge about the incident. 14. PW-10 Anguri Devi, mother of the deceased, states that the deceased used to complain that the accused persons harass her. She states that having received information about her death, she along with 4-5 persons went to the matrimonial house of the deceased but by that time her dead body had been burnt. In cross-examination she denied the suggestion that the deceased died of heart attack. However, she admits that when her daughter/deceased came to Barakar, she took her to one Dr. Sajjan at Aasan Sol for check up and after examination, the doctor told that she (deceased) is alright. In para 12 she admits that her brother and nephew reside at Balod and that at the relevant time, Lalchand was at Balod and after the incident he came to Durg. She states that when the deceased was burnt, he was in Durg. She 9 volunteers that her nephew and accused persons have colluded with each other. She admits that when they reached Durg, the accused persons told that the deceased died as a result of heart attack. She then volunteers that her daughter did not die of heart attack but was killed. 15. Close scrutiny of the evidence of all the witnesses make it clear that on 24.6.2001 deceased Sunita fell unconscious at her matrimonial house. Dr. Pradeep Kumar Dani (PW-4) examined her and gave certificate of Ex.P/3. Looking to her serious condition, the doctor advised for her immediate hospitalization. PW-3 BL Dewangan, Compounder in Medicine Department, District Hospital, Durg, states that on 22.10.2001 the police seized a register as per Ex.P/2. In this register, at page No.10 there is entry of Sunita, 20 years at S.No.55. However, PW-11 Ku. Mamta Tiwari, Medial Officer, District Hospital, Durg states that on 24.6.2001 no young male or female patient in unconscious condition was brought into the emergency room. In para 9 & 10 of her cross-examination she states that during the course of her duty, she informed the Civil Surgeon, Durg about deceased Sunita vide Ex.P/9 and based on her report, Civil Surgeon Dr. Waghela sent information to the City Superintendent of Police, Durg regarding deceased Suita vide Ex.P/10. However, from perusal of Ex.P/10 it is clear that PW-11 informed that on 24.6.2001 no person named Sunita 10 in unconscious condition was brought. It is mentioned in Ex.P/11 that Sunita, OPD 55955 cannot be deceased Sunita. 16. The Hon’ble Supreme Court in the matter of Thulia Kali (supra) held that first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be over-estimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after-thought. On account of delay the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account of concocted story as a result of deliberation and consultation. It is therefore essential that the delay in the lodging of the first information report should be satisfactorily explained. 17. In the matter of M. Madhusudhan Rao (supra) the Hon’ble Supreme Court held in paras 24, 25 & 30 of its judgment as under: “24. Though it is true the trial court has observed that there is some evidence on record to show that there was a demand for 11 dowry even at the e time of marriage but it is clear that the foundation for action against the respondent was laid when the complaint was lodged by the wife on 22-5-1996 and the prosecution machinery was set into motion. Again, it is true that in the complaint there is a reference to the past conduct of the respondent and his family members, but from the tenor of the complaint, it is clear that the allegation of harassment including the alleged poisoning incident is linked solely with her failure to get an additional amount of Rs 50,000 from her parents for the purchase of a lorry. 25. Furthermore, though the trial court records that in the evidence there are no specific instances of harassment, yet it has proceeded to presume that the long course of conduct of the respondent is indicative of the fact that the allegation of harassment is not totally baseless. Even the deposit of initial 9 amount of Rs 1,50,000 by the respondent for the purchase of a lorry in the name of the complainant has been doubted by the trial court. 30. Time and again, the object and importance of prompt lodging of the first information report has been highlighted. Delay in lodging the first information report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained.” 12 18. Recently, the Hon’ble Apex Court in the matter of Charan Singh (supra) observed in para 11 of its judgment as under: “11. The interpretation of Sections 304B and 498A IPC came up for consideration in Baijnath's case (supra). The opinion was summed up in paras 25 to 27 thereof, which are extracted below:- "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. The offence under Section 498-A of the Code is attracted qua the husband or his relative if she is subjected to cruelty. The Explanation to this Section exposits "cruelty" as: (1) 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), or 13 (ii) 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. 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.” 19. Keeping in mind the aforesaid principles of law, from perusal of the evidence on record, it emerges that in the present case there is no postmortem report of the deceased and the prosecution has failed to prove nature of death of deceased Sunita whether it was homicidal, suicidal or accidental. As per prosecution, all the accused persons gave wrong information about her death due to heart attack and did not take her to hospital for treatment. However, as per PW-4 Dr. Pradeep Kumar Dani, on being called from the house of the accused persons, 14 he went to their house on 24.6.2001 itself and examined the deceased and found her in coma. He advised them for taking her to hospital vide Ex.P/3. It is also clear from the FIR that it was lodged by the complainant after more than four months of the incident and long distance of police station from the place of occurrence is shown as the cause of delay in lodging the report. However, it is clear from the statements of brother and mother of the deceased that they reached the house of the accused persons next day of the incident but did not lodge any report or complaint immediately after her death. 20. It is also admitted by brother and mother of the deceased that they did not complain to anyone regarding demand of dowry and also did not convene any social meeting in this regard. In this case, the prosecution only proved this fact that the deceased died within seven years of marriage at her matrimonial house but could not lead any evidence whether her death was by any burns or bodily injury or by any cause other than in normal circumstances and also failed to prove 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 demand of dowry. But the learned trial Court did not appreciate all these facts and in absence of the necessary ingredients constituting the alleged offence held them guilty under Sections 304B and 201 of IPC, which is not legally sustainable and is liable to be set aside. 15 21. On the basis of aforesaid discussions, the appeal is allowed. The impugned judgment of learned trial Court in respect of the appellants herein is set aside and they are acquitted of the charges under Sections 304B and 201 of IPC. The appellants are reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023, each of them is also directed to furnish a personal bond for a sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereon shall appear before the Hon'ble Supreme Court. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/ (Rajani Dubey) Judge Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2025.07.22 16:12:58 +0530