Chandrasen Khandekar vs State Of Chhattisgarh

The instant appeal has been preferred against judgment dated 30.1.2016 passed by the Sessions Judge, Bastar at Jagdalpur in Sessions Trial No.78 of 2015, whereby the Appellant has been convicted and sentenced as under:

Conviction

Sentence

Under Section 304B of the Indian Penal Code

Rigorous Imprisonment for 10 years and fine of Rs.5000, in default of payment thereof, additional rigorous imprisonment for 1 month

Name of the deceased is Meenakshi. Her marriage with the Appellant was solemnised at Bilaspur on 2.5.2015. Allegedly, after the marriage, he demanded car, branded mobile handset, washing machine etc. from her and for this he treated her with cruelty. She informed about the cruelty to her family members through her mobile phone. On 10.7.2015, she committed suicide by hanging herself. Dehati Morgue Intimation (Ex.P11) was lodged by PW4 J.S. Baghel, a neighbour of the Appellant. Thereafter, numbered Morgue Intimation (Ex.P12) was registered. Inquest (Ex.P6) was conducted on 10.7.2015. On 10.7.2015 itself, one steel glass, one spoon, one plastic mat, one plastic container in which some liquid was kept, one Nokia mobile phone handset and one lined copy of total 72 pages in which suicide note of the deceased was written at page No.31 were seized from the spot. Her dead body was sent for post mortem examination which was conducted by PW10 Dr. Kiran Patil. Post Mortem Report is Ex.P13. On 11.7.2015, a written complaint (Ex.P1) was submitted by PW1 Dilip Kumar Banjare, brother of the deceased. First Information Report (Ex.P2) was registered. To compare the handwriting and signature of the deceased, one copy containing signature of the deceased was seized vide Ex.P9 from PW3 Lalit Narayan Banjare, another brother of the deceased. The suicide note was sent for examination of handwriting expert. The expert’s opinion is Ex.P16 in which it is opined that the suicide note was written in the handwriting of the deceased. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. On completion of the investigation, a charge-sheet was filed. The Trial Court framed charges. To rope in the Appellant, the prosecution examined as many as 16 witnesses. In examination under Section 313 Cr.P.C., the Appellant denied the guilt and pleaded innocence. A defence was taken by the Appellant that before the marriage of the deceased with him, she was previously married with some other person and from that previous marriage she had one son, namely, Bony and about the said previous marriage the Appellant and his family members were not informed. When they came to know about her previous marriage, she insisted them to adopt her son Bony. The Appellant’s response was that the issue will be discussed in a village panchayat. Therefore, due to guilt feeling, she committed suicide. Total 4 defence witnesses were examined by the Appellant and he examined himself as Defence Witness No.5 under Section 315 Cr.P.C. On completion of the trial, the Trial Court convicted and sentenced the Appellant as mentioned in first paragraph of this judgment. Hence, the instant appeal.

Learned Counsel appearing for the Appellant argued that without there being any sufficient and clinching evidence on record  the Trial  Court  has  convicted  the Appellant. His conviction is based on the statements of the relatives of the deceased only. Their statements are not reliable. Only general allegations have been made by them against the Appellant with regard to demand of dowry. No specific date or place has been mentioned by them in this regard. It was further submitted that from the contents of the suicide note and from the statements of DW3 Chandra Prakash, father of the Appellant and DW5 Chandrasen Khandekar (the Appellant herein) a probable story has been established by the Appellant that the deceased was already married with some other person and one son Bony was there from that previous marriage and this fact was not disclosed to the Appellant  and  when the Appellant came to know about this fact and told the deceased to settle the issue in a panchayat meeting then she committed suicide to escape from the guilt. Reliance was placed on Mustkeem alias Sirajudeen v. State of Rajasthan, (2011) 11 SCC 724, Devilal v. State of Rajasthan, (2019) 19 SCC 447, Baijnath v. State of Madhya Pradesh, 2017 Cri.L.J. 179 (SC), Biswajit Halder alias Babu Halder v. State of W.B., (2008) 1 SCC 202, Narayanamurthi v. State of Karnataka, (2008) 16 SCC 512 and the judgment passed by this Court in Dular Singh v. The State of Chhattisgarh, Criminal Appeal No.911 of 2001.

Learned Counsel appearing for the Respondent/State, opposing the arguments raised on behalf of the Appellant, submitted that there is sufficient evidence available on record that soon before her death the deceased was subjected to cruelty by the Appellant for demand of dowry and there is also evidence on record to show that due to that cruelty the deceased committed suicide. Therefore, the Trial Court has rightly convicted the Appellant.

I have heard the rival contentions put-forth on behalf of the parties and perused the impugned judgment and gone through the evidence adduced by the prosecution and the defence with due care.

Necessary ingredients for invoking the provisions of Sections 302, 304B and 306 of the Indian Penal Code read with Section 113B of the Indian Evidence Act have been discussed by the Supreme Court in the case of (2008) 4 Supreme 228 (Narayanamurthy v. State of Karnataka). In paragraphs 17 and 18 of the said judgment, it has been observed thus:

“17. The basic ingredients to attract the provisions of Section 304B, IPC, are as follows:-

“(1) That the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal;

(2) such death occurs within 7 years from the date of her marriage;

(3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband;

(4) such cruelty or harassment should be for or in connection with the demand of dowry; and

(5) it is established that such cruelty and harassment was made soon before her death.”

18.In the case of unnatural death of a married woman as in a case of this nature, the husband could be prosecuted under Sections 302, 304-B and 306 of the Penal Code. The distinction as regards commission of an ofence under one or the other provisions as mentioned hereinbefore came up for consideration before a Division Bench of this Court in Satvir Singh v. State of Punjab, [2001 (8) SCC 633] wherein it was held: (SCC p. 643, paras 21-22)

“21. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is 'at any time' after the marriage. The third occasion may appear to be an unending period. But the crucial words are 'in connection with the marriage of the said parties'. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in diferent societies. Such payments are not enveloped within the ambit of 'dowry'. Hence the dowry mentioned in Section 304-B should be any property or valuable security given or agreed to be given in connection with the marriage.

It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304-B is to be invoked. But, it should have happened 'soon before her death'. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words 'soon before her death' 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 inficted on her. If the interval which elapsed between the infiction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufcient to snuf its cord from the concept 'soon before her death'.”

In the light of above observations of the Supreme Court, now, in the instant case, I shall discuss the evidence available on record.

Undisputedly, marriage of the deceased with the Appellant was solemnised at Bilaspur on 2.5.2015. The first question for consideration is whether the death of the deceased was unnatural/suicidal. The Trial Court, relying on the statement of PW10 Dr. Kiran Patil and the post mortem examination report (Ex.P13) given by her, held that the nature of the death of the deceased was suicidal. The above finding recorded by the Trial Court is based on the evidence available on record and is thus not perverse and contrary to the record and Learned Counsel for the Appellant also did not dispute the said finding of the Trial Court. Therefore, I affirm the said finding of the Trial Court.

The case of the prosecution is based on the statements of PW1 Dilip Kumar Banjare, PW3 Lalit Narayan Banjare and PW8 Anand Kumar Banjare, all brothers of the deceased, PW9 Smt. Saraswati Khande, sister of the deceased, PW12 Smt. Miteshwari Banjare, sister-in-law (Bhabhi) of the deceased, PW11 Kumari Snehlata Masih, a colleague of the deceased and also on the contents of the suicide note written by the deceased.

First, I shall examine the statements of the above-named witnesses.

PW1 Dilip Kumar Banjare, PW3 Lalit Narayan Banjare and PW8 Anand Kumar Banjare, in their Court statements, deposed that after the marriage, the Appellant took the deceased to his paternal village, namely, Daukidah, where they stayed for about 16 days. Thereafter, they went to Jagdalpur, which was the place of posting of the Appellant and they stayed there. According to these three witnesses, 2-4 days later, the deceased started making complaints to them through phone that she was being subjected to cruelty by the Appellant for demand of car, mobile phone, washing machine. During their cross-examination, these witnesses admitted the fact that on receiving the complaints from the deceased, they did not make any complaint in this regard to the panchayat or to their community nor did they make any complaint to the police station. They further admitted the fact that at the time of marriage also, no demand of dowry was made by the Appellant. They further admitted that in their community no custom of dowry existed. But, all these three witnesses remained firm on the point that the deceased had been making complaints to them through phone that the Appellant had been subjecting her to cruelty for demand of abovementioned articles. A reasonable explanation has also been given by these witnesses that why they did not make any complaint to their community or to the police station as the marriage was new and improvement in the Appellant would take place over a period of time.

PW9 Smt. Saraswati Khande, sister of the deceased is a hearsay witness. She admitted the fact that the deceased had not made her any complaint directly. PW12 Smt. Miteshwari Banjare, sister-in-law (Bhabhi) of the deceased also admitted that the deceased had not made her any complaint directly. In view of the fact that the deceased had not made any direct complaint to these two witnesses, no adverse effect is caused to the case of the prosecution because the deceased had made complaints to her three above-named real brothers, who had up-brought her and arranged and performed her marriage with the Appellant as the parents of the deceased were no more. Therefore, the conduct of the deceased that she made complaints to her brothers only is natural.

Apart from that, there is suicide note of the deceased. Though the suicide note is not available on record, its contents are quoted by the Trial Court in its judgment at paragraph 25, which reads as under:

A careful reading of the above-quoted contents of the suicide note also shows that it was written by the deceased that the Appellant had been beating and abusing her daily for demand of dowry. The above contents also clearly show that soon before her death she was subjected to cruelty by the Appellant and the cruelty was committed by him for demand of dowry. Though a defence was taken by the Appellant that the deceased was already married with some other person and she had one son, namely, Bony also from that marriage and this fact was hidden from him and his family members and when this fact came to their knowledge she asked them to adopt her son Bony, but, he had responded that the issue will be settled in a panchayat meeting and, therefore, the deceased committed suicide on account of guilt feeling. But, the Appellant has totally failed to establish his this defence. The deceased’s brothers PW1 Dilip Kumar Banjare, PW3 Lalit Narayan Banjare and PW8 Anand Kumar Banjare, sister PW9 Smt. Saraswati Khande, sister-in-law (Bhabhi) PW12 Smt. Miteshwari Banjare have categorically denied the fact that the deceased was already married. Not a single question was put by the defence to these witnesses to the effect whether the deceased had any son and his name was Bony. The defence also did not produce any evidence or material to show that the deceased was already married and when that marriage had taken place and who was her first husband. Therefore, mere mentioning of name of Bony in the suicide note as the son of the deceased does not establish the fact that Bony was really the son of the deceased and it is also not established that the deceased was already married. Therefore, I do not find any substance in the argument raised by Learned Counsel for the Appellant in this regard.

Considering the entire evidence available on record, it is well established that the deceased died within 7 years of her marriage with the Appellant. It is also established that her death was unnatural and was by committing suicide. It is well established that soon before her death she was subjected to cruelty by the Appellant and that too for demand of dowry. Considering the entire evidence available on record, the Trial Court has rightly found the Appellant guilty for the offence under Section 304B of the Indian Penal Code.

Resultantly, I do not find any merit in the instant appeal. It is, therefore, dismissed. The impugned judgment of conviction and sentence is affirmed.

Record of the Court below be sent back along with a copy of this judgment forthwith for information and necessary action.