1 2025:CGHC:20004 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 100 of 2005 1 - Raju Prasad Kewat 1, S/o Ram Ratan Kewat, aged about 26 years, R/o village Munund P. S. Janjgir Tahsil & District Janjgir- Champa. ... Appellant versus 1 - State Of Chhattisgarh ... Respondent(s) For Appellant : Mr. Leekesh Kumar & Mr. Avishek Bharti, Advocates For Respondent(s) : Mr. Abhishek Singh, P. L. (Hon’ble Shri Justice Sachin Singh Rajput) Judgment on Board 01/05/2025 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 25.01.2005 passed by learned 3rd Additional Sessions Judge (FTC) Janjgir (CG) in Sessions Trial No. 305/2004. By the impugned judgment, the appellant was convicted under Section 304-B of IPC and sentenced him to undergo RI for 7 years. 2. Fact of the case in nutshell is that the marriage of the deceased was solemnized with the appellant about a year before the incident. On 10.06.2004, at noon, the deceased was burnt in her house in a fire. She was taken to 2 District Hospital, Janjgir. From where, the Police was informed thereafter the doctor advised to get deceased treated in Bilaspur. While taking her to Bilaspur, the deceased died on the way. She was again taken back to Janjgir Hospital. On the basis of the information from the hospital, the Police went to the place of the incident and sealed the room. The panchanama of the dead body was prepared by the Executive Magistrate and dead body was examined by the doctor. The deceased died due to burning. During the investigation, it was found that the deceased was subjected to cruelty on account of demand of dowry, therefore, a case was registered against the appellant. 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 him and claimed for trial. 3. So as to establish its case, the prosecution has examined as many as 18 witnesses and exhibited 25 documents. The statement of the accused/appellant under Section 313 CrPC was also recorded where he pleaded his innocence and false implication in the case. 4. By the judgment impugned learned Court below has held the accused/appellant guilty and imposed the sentence as described above which is challenged before this Court by the appellant. 5. Learned counsel for the appellant submits that the prosecution was not able to bring home the guilt of the accused person beyond reasonable doubt. He submits that in order to establish the guilt under Section 304-B IPC, the prosecution was required to establish that the allegation of harassment on account or in connection with demand of dowry has to be in close proximity leading to the unnatural death of the deceased. In the case in hand, the prosecution miserably failed to establish the same, therefore, the presumption 3 under Section 113-B of Evidence Act (for short “Evidence Act”) will not come into play even otherwise the appellant has been able to rebut the presumption. He submits that learned trial Court placed reliance upon the statement of brother of the deceased (PW-6) to sustain conviction and gave a finding of conviction which is absolutely perverse and contrary to the record. He also submits that until and unless the ingredients to constitute offence under Section 304-B IPC is proved, no presumption can be drawn against the appellant, therefore, the appeal may be allowed by acquitting the appellant. 6. Per contra learned counsel for the State supports the impugned judgment and submits that from the evidence of PW-6, the allegations of cruelty meted out to the deceased Sonmati 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 to bring home the guilt of the appellant beyond reasonable doubt, therefore, the appeal deserves to be dismissed. 7. Heard learned counsel for the parties at length and perused the record including the impugned judgment. 8. Death of the deceased within 7 years of marriage is not in dispute and she died an unnatural death by burning is also not in dispute. It has to be seen that whether the deceased was subjected to cruelty on account of demand of dowry soon before her death has been proved or not. The learned trial Court has basically relied upon the statement of Mannu (PW-6) brother of the deceased who in his statement stated that he was told by the deceased in a marriage that the appellant says about dowry and commits Marpeet with her, thereafter the trial Court applied presumption of Section 113 A and 113 B of Evidence Act 4 and came to a conclusion that the deceased died an unnatural death within one year of marriage and held that the case of prosecution was proved beyond reasonable doubt. 9. Hon’ble Supreme Court in case of Karan Singh Vs. State of Haryana, 2025 INSC 133 held as under:- 6. The following are the essential ingredients of Section 304-B: a) The death of a woman must have been caused by any burns or bodily injury, or must have occurred otherwise than under normal circumstances; b) The death must have been caused within seven years of her marriage; c) Soon before her death, she must have been subjected to cruelty or harassment by the husband or any relative of her husband; and d) Cruelty or harassment must be for, or in connection with, any demand for dowry. 7. If the aforesaid four ingredients are established, the death can be called a dowry death, and the husband and/or husband's relative, as the case may be, shall be deemed to have caused the dowry death. Section 2 of the Dowry Prohibition Act, 1961 provides that dowry means any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage or by the parents of either party to a marriage or by any other person, to the other party to the marriage or to any other person. The dowry must be given or agreed to be given at or before or any time after the marriage in connection with the marriage of the said parties. The term valuable security used in Section 2 of the Dowry Prohibition Act, 1961 has the same meaning as in Section 30 of IPC. 8. In this case, there is no dispute that the death of the appellant's wife occurred within seven years of the marriage. Section 113-B of the Evidence Act reads thus: "113-B. Presumption as to dowry death.-When the question is whether a person has committed the dowry death of a woman 5 and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.-For the purposes of this section, "dowry death" shall have the same meaning as in Section 304-B of Indian Penal Code (45 of 1860)." The presumption under Section 113-B will apply when it is established that soon before her death, the woman has been subjected by the accused to cruelty or harassment for, or in connection with, any demand for dowry. Therefore, even for attracting Section 113-B, the prosecution must establish that the deceased was subjected by the appellant to cruelty or harassment for or in connection with any demand of dowry soon before her death. Unless these facts are proved, the presumptions under Section 113-B of the Evidence Act cannot be invoked. 10. The star witness which the learned trial Court is relied upon is the brother of the deceased (PW-6). Prior to this, prosecution examined Shukvara Bai (PW- 1)- the mother of the victim. In her statement she simply stated that whenever the deceased used to come to her house she used to state that the appellant suspects on her character, thereafter nothing has been stated about cruelty on account of demand of dowry soon before her death. PW-2 Sukhiram is the brother-in-law of the deceased who also not speaks anything against the appellant and this witness has not supported the case of the prosecution with regard to demand of dowry. PW-3 is Rambai who is the Kotwar also does not throw any light on the factum of any cruelty. PW-4 Dhananjay Rathore stated that when he reached to the place of incident, deceased has already burnt, she was in critical condition and PW-3 asked the deceased as to how she got burnt, she replied that she does not want to live. Thereafter the deceased was taken to hospital where she died. 11. This leads me to important witness PW-6- brother of the deceased. In Para 2 he stated that when the deceased Sonmati met him in younger brother’s 6 marriage, then she told that the appellant says about the dowry and commits marpeet with her. In cross examination he is not able to tell as to what date and time the marriage of younger brother took place. He also stated that the factum of beating the deceased on account of demand of dowry has not been disclosed by him to anybody. He also admits that in the marriage of his brother, the appellant and her sister (deceased) had also come and he never asked the appellant with regard to Marpeet done with her sister. He also admits that he never made any complaint in the Police Station with regard to assault and demand of dowry from her sister. Basically as reading of the statement it appears that in one particular instance it is stated by the deceased to him that the appellant says about demand and commits the assault but this witness is not particular as to when the demand was done and simply one line statement would not sufficient enough to constitute a cruelty on account of demand of dowry. Even the mother, brother-in-law and another persons have not spoken anything against the appellant with regard to demand of dowry. Therefore, the prosecution was not able to prove the ingredients of Section 304 B of IPC, once it is failed to prove the presumption drawn by learned trial Court cannot be drawn by it and the conviction of the appellant on such flimsy evidence cannot sustain. 12.The Supreme Court in the case of Tarsem Singh Vs. State of Punjab reported in (2008) 16 SCC 155 in Para 21 held as under:- “21. What the High Court failed to notice in arriving at the said findings is that no evidence was brought on record to show that the cruelty or harassment was meted out to her for bringing insufficient dowry, in absence whereof the ingredients of Section 304B of the Indian Penal Code cannot be said to have been proved. The legal fiction sought to be created must be raised only on fulfillment of the conditions precedent therefor. All the requisite ingredients of the offence must be brought home before the presumptive evidence is put to use by the court for holding the accused guilty of an offence under Section 304B of the Indian Penal Code.” 7 13. Likewise in the case of Kaliyaperumal and Another Vs. State of Tamil Nadu reported in (2004) 9 SCC 157 Hon’ble Supreme Court in Para 5 held as under:- “5. 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 the "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 in 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 who 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 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.” 14. In the case of Charan Singh Alias Charanjit Singh Vs. State of Uttarakhand reported in 2023 SCC Online SC 454, allegations with regard to demand of motorcycle and some land was made against the husband by which deceased therein was subjected to harassment, it has been observed by Hon’ble Supreme Court as under:- “21. ….It is only certain oral averments regarding demand of motorcycle and land which is also much prior to the incident. The aforesaid evidence led by the 8 prosecution does not fulfill the pre-requisites to invoke presumption under Section 304B IPC or Section 113B of the Indian Evidence Act. Even the ingredients of Section 498A IPC are not made out for the same reason as there is no evidence of cruelty and harassment to the deceased soon before her death.” 15.In view of above legal pronouncements, considering the facts and circumstances of the case and evidence available on record, also considering that there is no specific allegation against the appellant, this Court is of the considered opinion that the judgment impugned is liable to be set aside by allowing the appeal. 16.Accordingly, the appeal is allowed, judgment impugned is set aside and the accused/appellant is acquitted of charge leveled against him. Appellant is reported to be on bail, his bail bond will remain in force for six months in view of section 481 of BNSS, 2023. 17.The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Sachin Singh Rajput) JUDGE Parul PARUL MITTAL Digitally signed by PARUL MITTAL Date: 2025.05.08 13:30:27 +0530