Deleted Binda Prasad vs State Of Chhattisgarh

Conviction,Sentence

Under Section 304B of the Indian Penal Code,Rigorous Imprisonment for 10 years

declared hostile and the conviction is only based on the statements of Sampatdevi (PW16), mother of the deceased and Anju (PW18), sister of the",

deceased, evidence of these two witnesses need to be examined carefully.",

Sampatdevi (PW16), mother of deceased Uma has stated that the deceased was married to Appellant No.2, Naresh in the year 1989. Thereafter,",

the accused had visited her house 2-3 times. Thereafter, a child took birth from the wedlock of the deceased and Appellant No.2. She has further",

stated that after 1 year from the death of Kanhaiyalal Gupta (father of the deceased), she had gone to the matrimonial house of the deceased at",

Rajnandgaon to take her back. She had gone to Rajnandgaon along with Rajesh, son of her Jeth (brother-in-law). She has further stated that at",

Rajnandgaon, she came to know from Padma that father-in-law of the deceased had told the deceased that father of the deceased had taken a sum of",

Rs.10,000/- from him and since he has died, the deceased should take that sum from her mother and repay him. (Rajesh and Padma have not been",

examined by the prosecution). She has categorically stated that the demand of Rs.10,000/- was not made from her by the accused. In paragraph 2,",

Sampatdevi (PW16) has further stated that deceased Uma had told her that her husband and father-in-law used to beat her saying that she had not,

brought anything in dowry and they were asking her to bring a ring of gold. She has further stated that she had again visited Rajnandgaon in the month,

of December to take her daughter Uma back, but both Appellant No.2 and Appellant No.1 (dead) had refused to send her. But, all the above facts are",

not mentioned in her written complaint (Ex.P13) and her case diary statement (Ex.D1). She has further stated that 2 months thereafter the accused,

had sent her a telegram communicating death of the deceased. She had visited the matrimonial house of the deceased, but till then cremation of the",

dead body of the deceased had been done. In paragraph 6 of her cross-examination, she has stated that after the death of the father of the deceased,",

the accused had started harassing the deceased and this harassment was not given to the deceased before the death of her father. In paragraph 9,

also, she has categorically stated that when she had visited the matrimonial house of the deceased first time, at that time, the deceased had not made",

her any complaint. In paragraph 14, she has stated that the deceased had written her 2-3 letters and 1½ months prior to her death also, she had",

written her a letter in which she had requested to take her back from her matrimonial house. But, these letters have also not been produced by the",

prosecution before the Trial Court.,

Anju (PW18), sister of the deceased has stated that she had stayed along with the deceased at her matrimonial house for about 1½ months. She",

has further stated that quarrel between the accused and the deceased had taken place some times in her presence. Once, on a quarrel taking place",

between the deceased and her husband, the husband had poured kerosene on the deceased. She has further stated that the husband had been",

threatening the deceased that if she will not bring a sum of Rs.10,000/- from her mother, they will kill her. This witness has not stated about the",

particular day, month or period for which she stayed at the matrimonial house of the deceased before her death. Though as per her case diary",

statement (Ex.D2), she was there in the month of September, 1992, i.e., about 6 months prior to the date of death of the deceased. During cross-",

examination, in paragraph 3, she has admitted that quarrel had been taking place between the deceased and her husband for domestic matters. In",

paragraph 3, she has categorically stated that the husband had told the deceased that her father had died after taking a sum of Rs.10,000/- from them",

and he was asking her to repay the said amount by bringing the same from her mother. On this, the deceased had asked her husband why did they not",

tell about the said amount till her father was alive.,

In Baijnath case (supra), it has been observed thus:",

 “32. This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B 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 304B as in Shindo v. State of,

Punjab, (2011) 11 SCC 517 and echoed in Rajeev Kumar v. State of Haryana, (2013) 16 SCC 640. In the latter pronouncement, this Court",

propounded that one of the essential ingredients of dowry death under Section 304B 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 113B of the Act. It referred to,

with approval, the earlier decision of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao, (2003) 1 SCC 217 to the effect that to attract the",

provision of Section 304B of the Code, one of the main ingredients of the offence which is required to be established as that “soon before her",

deathâ€​ she was subjected to cruelty and harassment “in connection with the demand for dowryâ€​.â€​,

In Major Singh case (supra), it has been observed as follows:",

 “16 . To attract conviction under Section 304B IPC, the prosecution should adduce evidence to show that “soon before her deathâ€, the",

deceased was subjected to cruelty or harassment. There must always be proximate and live link between the effects of cruelty based on dowry,

demand and the concerned death. In the case of Hira Lal v. State (Govt. of NCT of Delhi), (2003) 8 SCC 80, it was observed as under: (SCC pp. 86-",

87, para 9)",

“9 . 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 “death occurring otherwise than in normal circumstancesâ€. 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 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 or has received the goods knowing them to be stolen, unless he can account for their 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.â€​",

Same principle was also expressed in State of A.P. v. Raj Gopal Asawa, (2004) 4 SCC 470; Balwant Singh v. State of Punjab, (2004) 7 SCC 724,",

Kaliyaperumal v. State of Tamil Nadu, (2004) 9 SCC 157; Kamesh Panjiyar v. State of Bihar , (2005) 2 SCC 388; Harjit Singh v. State of Punjab,",

(2006) 1 SCC 463; Biswajit Halder v. State of West Bengal, (2008) 1 SCC 202 and Narayanamurthy v. State of Karnataka, (2008) 16 SCC 512.â€​",

In the light of above, now, I shall discuss the evidence adduced by the prosecution in the instant case.",

From the evidence on record in the instant case, it is clear that death of Uma was suicidal in nature and the death had taken place within 7 years",

of her marriage. No independent witness has supported the case of the prosecution. The case of the prosecution is based on the statements of,

Sampatdevi (PW16), mother of the deceased and Anju (PW18), sister of the deceased. From the statement of Sampatdevi (PW16), it is also clear",

that no harassment was being given to the deceased till her father was alive. As per Court statement of Sampatdevi (PW16), when she had gone to",

the matrimonial house of the deceased along with Rajesh, at that time, she had come to know from Padma that father-in-law of the deceased had",

been telling the deceased that her father had died after taking a sum of Rs.10,000/- from them and he was asking the deceased to give the money",

back to them after taking the same from her mother. But, neither Rajesh nor Padma have been examined by the prosecution. Sampatdevi (PW16) has",

categorically stated that the accused had not made any demand from her. Nothing has been stated by her that she was told by the deceased about the,

said demand of Rs.10,000/-. Even if for the sake of argument, it is considered that there was any demand of Rs.10,000/- by the accused, from the",

statement of Sampatdevi (PW16) it is clear that the same was not as a dowry but was being asked to repay which had been taken by the father of the,

deceased from the accused. Though this witness has stated that the deceased had told her that her father-in-law and husband used to harass and beat,

her for demand of dowry and they were asking her to bring a ring of gold from her mother yet this fact is not mentioned in her written complaint,

(Ex.P13) and case diary statement (Ex.D1). As stated by this witness, some letters had also been written to her by the deceased, but those letters",

have not been produced by the prosecution before the Trial Court.,

From the statement of Anju (PW18), sister of the deceased, it is also clear that 6 months prior to the death of the deceased, she had stayed at the",

matrimonial house of the deceased along with her for about 1½ months. At that time, quarrels had taken place between the accused and the",

deceased some times. But, those quarrels had taken place for domestic reasons is admitted by her. As per statement of this witness, once, on a",

quarrel taking place between the deceased and her husband, the husband had poured kerosene on the deceased. Even if this statement is considered",

to be true for a while, this incident had taken place 6 months prior to the death of the deceased. It is also clear from the statement of this witness that",

the so called quarrels had not been taking place for demand of any dowry.,

From the above discussion, I find that there is no evidence on record as to demand of any dowry or deceased Uma was subjected to cruelty or",

harassment for demand of dowry “soon before her deathâ€. There is nothing on record to substantiate the allegation of dowry demand. In the,

absence of any evidence that the deceased was subjected to cruelty or harassment in connection with demand of dowry “soon before her deathâ€,

by the accused, the conviction of the accused under Section 304B of the Indian Penal Code cannot be sustained.",

Consequently, the appeal is allowed. The conviction and sentence imposed upon Appellant No.2, Naresh is set aside. He is acquitted of the charge",

framed against him.,

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