Page No.1 of 13 IN CRA-1912-2023 2025:CGHC:18434 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1912 of 2023 [Arising out of judgment dated 22.09.2023, passed in Sessions Case No.12 of 2020 (Ashwani Sahu @ Naresh and 02 others) by the Additional Sessions Judge (FTC), Dhamtari (CG)] 1 - Ashwani Sahu @ Naresh, S/o Santram Sahu, aged about 27 years, R/o Azad Chowk, Chataud, Police Chowki Birejhar, Police Station Kurud, District Dhamtari (Chhattisgarh) 2 - Santram Sahu, S/o Teejram Sahu, aged about 47 years, R/o Azad Chowk, Chataud, Police Chowki Birejhar, Police Station Kurud, District Dhamtari (Chhattisgarh) 3 - Pushpa Sahu, W/o Santram Sahu, aged about 45 years, R/o Azad Chowk, Chataud, Police Chowki Birejhar, Police Station Kurud, District Dhamtari (Chhattisgarh) ... Appellants (A-1 in Jail A-2 & A-3 on Bail) Versus State of Chhattisgarh, through the Station House Officer, Police Station Kurud, District Dhamtari (Chhattisgarh) ... Respondent --------------------------------------------------------------------------------------------- For Appellant : Mr. Sanjeev Kumar Sahu, Advocate For Respondent : Mr. Ashutosh Shukla, Panel Lawyer Amicus Curiae : Mr. Pankaj Singh, Advocate --------------------------------------------------------------------------------------------- Single Bench: Hon'ble Shri Justice Sanjay K. Agrawal (Judgment on Board) 23.04.2025 (1) This criminal appeal filed by the accused-appellants under Section 374(2) of CrPC is directed against the impugned judgment SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.2 of 13 IN CRA-1912-2023 of conviction and order of sentence dated 22.09.2023, passed in Sessions Case No.12 of 2020 (Ashwani Sahu @ Naresh and 02 others) by the Additional Sessions Judge (FTC), Dhamtari (CG), whereby they all have been convicted for offence under Section 304- B read with Section 34 of IPC and sentenced to undergo rigorous imprisonment for 07 years each. (2) The case of the prosecution, in short, is that from 13.04.2019 to 13.10.2019, at Village Chataud, which comes within the ambit of Police Outpost Birejhar, Police Station Kurud, District Dhamtari (CG), the accused-appellants herein, being the husband and the in- laws of Mainka @ Monika Sahu respectively, in furtherance of their common intention, committed ‘marpeet’ and subjected her with cruelty for or in connection with demand of dowry, due to which, Mainka @ Monika Sahu (hereinafter referred to as the “deceased”) suffered harassment mentally and physical and, therefore, on 13.10.2019, the deceased tried to commit suicide by pouring kerosene oil over her body and setting herself ablaze and further died, unnatural death within 07 years of her marriage, during the course of her treatment in the hospital on 16.10.2019 and, thereby, the appellants are said to have committed the aforesaid offence. (3) The further case of the prosecution is that the marriage of the deceased with the appellant- Ashwini Sahu @ Naresh (A-1) was solemnized on 13.04.2019 according to their communal rites and customs. Appellant- Ashwini Sahu @ Naresh (A-1) is the husband of Page No.3 of 13 IN CRA-1912-2023 the deceased, whereas appellants- Santram Sahu (A-2) and Pushpa Sahu (A-3) are father-in-law and mother-in-law of the deceased respectively. It is also the case of the prosecution that immediately after the marriage, all the appellants used to commit cruelty on the deceased for or in connection with demand of dowry, due to which, the deceased committed suicide on 13.10.2019 and died later on during treatment on 16.10.2019. After the death of the deceased, when the matter was reported to the police by the hospital, zero merg intimation (Ex.P/11) and zero FIR (Ex.P/29) was registered and wheels of investigation started running, in which, nazari naksha was prepared vide Ex.P/08. Summons under Section 175 of CrPC were issued vide Ex.P/01 and inquest proceedings were conducted vide Ex.P/02. The dead-body of the deceased was subjected to postmortem examination, which was conducted by Dr. Utkarsh Tripathi (PW-13) and, as per PM report (Ex.P/14), it has been opined that cause of death of the deceased is burn injuries and its complications. Thereafter, the accused-appellants were arrested vide Ex.P/22, P/23 & P/24 respectively. Certain articles were seized vide Ex.P/03 & Ex.P/04. Thereafter, statement of witnesses were recorded and, after due investigation, the appellants were charge-sheeted for the aforesaid offence in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellants abjured their guilt and entered into Page No.4 of 13 IN CRA-1912-2023 defence by stating that they are innocent and have been falsely implicated. (4) The prosecution in order to prove its case examined as many as 20 witnesses and exhibited 31 documents, whereas the appellants in support of their defence, neither examined any witness nor exhibited any document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellants for offence punishable under Section 304-B/34 of IPC and sentenced them as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Sanjeev Kumar Sahu, learned counsel for the appellants would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences. Learned counsel vehemently argued that taking the case of the prosecution as it, essential ingredients to constitute offence under Section 304B of IPC are completely missing in the present case and, therefore, the appellants are entitled for acquittal on the basis of benefit of doubt. Hence, the present appeal be allowed in toto. (7) Per-contra, learned State counsel would submit that prosecution has been able to prove the offences beyond reasonable Page No.5 of 13 IN CRA-1912-2023 doubt by leading evidence of clinching nature. It is further submitted on behalf of the respondent-State that in view of statements of prosecution witnesses coupled with other evidence available on record, the learned trial Court has rightly convicted the appellant for the offence mentioned herein-above and, therefore, the present appeal is liable to be dismissed. (8) I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (9) In order to consider the plea, raised at the Bar it would be appropriate to extract relevant provisions of Section 304-B of the IPC which relates to dowry death:- “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.” The above provision was inserted by Act 43 of 1986 and came into force w.e.f. 19.11.1986. Page No.6 of 13 IN CRA-1912-2023 (10) In order to convict an accused for the offence punishable under Section 304-B IPC, the following essentials must be satisfied-  The death of a women should be caused by burn or bodily injury or otherwise than under normal circumstances.  Such death should have occurred within seven years of the marriage.  Soon before the death of deceased, she must have been subjected to cruelty or harassment by her Husband or any relative of her Husband.  Such cruelty or harassment should be for or in connection with demand for dowry. Thus, if the aforesaid ingredients are established by the prosecution by leading appropriate reliable evidence, such death shall be called dowry death and the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. (11) Section 113B of the Indian Evidence Act, 1872 speaks about presumption as to dowry death which reads as under:- "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)." Page No.7 of 13 IN CRA-1912-2023 The aforesaid provision shows that if the women has been subjected to cruelty as defined in Section 498-A IPC, the court may presume that such person has caused dowry death. Section 2 of the Dowry Prohibition Act, 1961 provides as under:- 2. Definition of "dowry". In this Act," dowry" means any property or valuable security given or agreed to be given either directly or indirectly- a. by one party to a marriage to the other party to the marriage; or b. by the parents of either party to a marriage or by a other person, to either party to the marriage or to any other person; at or before or after the marriage us consideration for the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies." (12) To attract the provisions of Section 304B, 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 or harassment "for, or in connection with the demand for dowry". The expression "soon before her death" used in Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. (13) Coming back to the facts of the present case, admittedly, the marriage of the deceased was solemnized with appellant- Ashwini Sahu (A-1) on 13.04.2019, whereas the deceased died on 16.10.2019, due to burn injuries and its complication, which is proved by Dr. Utkarsh Tripathi (PW-13). As such, it is quite clear that the deceased died within 07 years of her marriage that too on account of burn injuries, therefore, first and second ingredients to Page No.8 of 13 IN CRA-1912-2023 constitute offence under Section 304-B of IPC are established on record. (14) Now, the question would be whether the prosecution has been able to establish the remaining ingredients for offence under Section 304-B of IPC, i.e. soon before the death the deceased was subjected to cruelty or harassment by the appellants, being her husband and in-laws respectively and said cruelty or harassment should be for or in connection with demand of dowry ? (15) In this regard, the statements of Vishnu Prasad Sahu (PW-01) [father of the deceased] and Smt. Yashoda Sahu (PW-02) [mother of the deceased] may be noticed herein profitably. Though, father of the deceased, namely, Vishnu Prasad Sahu (PW-01) in Para-03 of his examination-in-chief has stated that the appellants used to commit ‘marpeet’ with the deceased and used to demand Refrigerator, Motor-cycle and Gas Cylinder from the deceased, however, in Para-13 of his cross-examination, he has admitted the fact that the appellants have called him citing that his daughter (deceased) is unwell and mentally sick and, thereafter, he has brought the deceased to his village for treatment. Further, in Para- 16, he has also admitted that initially at the time of inquest proceedings, he and others have informed the police that the deceased due to unknown reasons committed suicide by pouring kerosene oil over her body and setting herself ablaze. Similarly, mother of the deceased- Smt. Yashoda Sahu (PW-02) has stated in Page No.9 of 13 IN CRA-1912-2023 Para-01 before the Court that the appellant used to demand Motorcycle, Refrigerator and Gas Stove and also used to harass the deceased in that connection, but in Para-09 clearly admitted the fact that on the request made by the appellants, the deceased was brought to her village back for undergoing treatment of her mental sickness. (16) Another witness, namely, Geduram (PW-07), who is co-villager of the appellants, has stated before the Court in Para-02 of his examination-in-chief that on the date and time of the incident, he alongwith others were sitting outside the house and listening ‘ramayan’ and, suddenly, they heard the cries of the deceased and, thereafter, the deceased came out of her house in burning condition and went towards the bushes, upon which, he alongwith others poured water on her body and extinguished the fire. However, Geduram (PW-07) in Para-03 of his cross-examination has specifically admitted that the mental condition of the deceased was not well and, on account of which, she used to say anything to anybody and also used to visit her parental house frequently. As such, from a conjoint perusal of the statements of Vishnu Prasad Sahu (PW-01), Smt. Yashoda Sahu (PW-02) and Geduram (PW-07), it is quite established that the deceased was suffering from mental illness and, for which, the appellants used to call her parents and the deceased used to visit her parental house frequently and undergo treatment. Page No.10 of 13 IN CRA-1912-2023 (17) Even, Smt. Yashoda Sahu (PW-02), in Para-03 has also stated that the deceased has given her oral dying declaration to the effect that while she visited the hospital for seeing the deceased, on being asked, the deceased has informed her by pointing out towards the appellants that they have caused burn injures to her. However, the factum of deceased giving oral dying declaration to Smt. Yashoda Sahu (PW-02) is inadmissible in evidence for the reasons that: (i) the date and time of giving the said oral dying declaration is not mentioned and (ii) there is no fitness certificate by any doctor that before giving the said oral dying declaration to Smt. Yashoda Sahu (PW-02), the deceased was in fit state of mind to give said statement. As such, the said statement of deceased giving oral dying declaration is of no help to the prosecution. Moreover, in this regard the statement of Biselal Sahu (PW-05), who is also a co- villager of the appellants, may be noticed herein profitably, whereby he has clearly stated that immediately after the incident, he reached to the spot and extinguished the fire on the deceased with the help of others and, thereafter, on being asked from the deceased, she informed that she burnt by her own. This witness- Biselal Sahu (PW-05), who has clearly stated that the deceased has informed them that she suffered burn injuries by her own has not been declared hostile. (18) The Supreme Court in the matter of Mukhtiar Ahmed Ansari Page No.11 of 13 IN CRA-1912-2023 v. State (NCT of Delhi) 1 relying upon its earlier decision in Raja Ram v. State of Rajasthan 2 has held that if a witness is not declared “hostile”, it is always open to the defence to rely on the evidence of the said witness and same will be binding on the prosecution. As such, from the statement of Biselal Sahu (PW-05) it is quite clear that the deceased suffered burn injuries by her own and the appellants have no role in it. Consequently, since said Biselal Sahu (PW-05) has not been declared hostile, therefore, his statement that the deceased suffered burn injuries by her own is also binding on the prosecution and the benefit of which must be extended to the appellants. (19) Furthermore, though at the time of inquest proceedings vide Ex.P/01, Vishnu Prasad Sahu (PW-01) [father of the deceased] and Smt. Yashoda Sahu (PW-02) [mother of the deceased] were also present, but they did not raise any issue that the present appellants are responsible for the incident in question. Even, during merg enquiry also it has categorically been stated by them that for unknown reasons, the deceased committed suicide by pouring kerosene oil over her body and lighting matchstick. Therefore, both Vishnu Prasad Sahu (PW-01) [father of the deceased] and Smt. Yashoda Sahu (PW-02) [mother of the deceased] initially did not implicate the appellants herein to the author of the crime in question and, only after merg enquiry, at the time of 1 (2005) 5 SCC 258 2 (2005) 5 SCC 272 Page No.12 of 13 IN CRA-1912-2023 lodging the FIR, the names of the present appellants have been implicated. As such, though the first two ingredients i.e. (i) death of the deceased should be caused by burn or bodily injury other then normal circumstances and (ii) such death should have occurred within 07 years of the marriage, are established in the present case, but the remaining two ingredients i.e. (iii) soon before the death the deceased was subjected to cruelty or harassment by the appellants, being her husband and in-laws respectively and (iv) said cruelty or harassment should be for or in connection with demand of dowry, are not established under the facts and circumstances of the present case for the reasons: (a) as per the statements of Vishnu Prasad Sahu (PW-01), Smt. Yashoda Sahu (PW-02) and Geduram (PW-07), the deceased was suffering from mental illness and, for which, the appellants used to call her parents and the deceased used to visit her parental house frequently and was undergoing treatment; (b) at the time of inquest and merg enquiry, the father and mother of the deceased did not implicate the names of the present appellants and, indeed, stated that for unknown reasons the deceased committed suicide by pouring kerosene oil over her body and lighting matchstick and (c) as per the statement of Biselal Sahu (PW-05), the deceased suffered burn injuries by her own and the appellants have no role in it. Therefore, the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 304-B read with Section 34 of IPC and they are liable Page No.13 of 13 IN CRA-1912-2023 to be acquitted from the charges on the basis of benefit of doubt. (20) Resultantly, in view of foregoing analysis, the conviction and sentence of all the appellants for offence under Section 304B read with Section 34 of IPC, as awarded to them by the learned trial Court, is hereby set aside. They are acquitted of the said charge on the basis of benefit of doubt. Since appellant- Ashwani Sahu @ Naresh (A-1) are reported to be in jail, therefore, I direct that he be released on bail forthwith, if not required in any other offence. Whereas, appellants- Santram Sahu (A-2) and Pushpa Sahu (A-3) are on bail, therefore, they need not to surrender, but their bails bonds shall remain in force for a further period of six months in view of provisions contained under Section 437-A of CrPC. (21) Consequently, this criminal appeal is allowed. (22) While parting with the record, we must place on record the appreciation for assistance rendered by Mr. Pankaj Singh, amicus curiae, who not only argued the case at length on short notice but has also brought relevant facts and legal position to my notice. (23) Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action. Sd/- (Sanjay K. Agrawal) Judge s@if