Santoshdhari vs State of C.G.

T.P. Sharma, J.—The Appellant who is husband of deceased Prema Bai has challenged the legality and propriety of the judgment of

conviction and order of sentence dated 29.6.2005 passed by the Additional Sessions Judge, Korba, in Sessions Trial No. 1/2004 whereby and

whereunder the learned Additional Sessions Judge after holding the Appellant guilty for the offence punishable under Sections 498A and 304B of

the Indian Penal Code sentenced him to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 3000/-, in default of payment of fine to

further undergo rigorous imprisonment for 6 months and rigorous imprisonment for 7 years.

Judgment of conviction and order of sentence is challenged on the ground that without there being an iota of evidence relating to commission of

cruelty and torture in connection with demand of dowry soon before death of Prema Bai, the Court below has convicted and sentenced the

Appellant as aforementioned and thereby committed an illegality.

Case of the prosecution, in brief, is that the present Appellant is husband of deceased Prema Bai who married with the Appellant in the month of

June, 2003 and died on 27.4.2004 as a result of hanging herself in the house of the Appellant. After marriage of Prema Bai, the Appellant and their

relatives used to demand of dowry especially television, motor-cycle and other articles and as a result of such demand, torture and cruelty, she

committed suicide. Merg intimation was registered vide Ex.P/6 on 27.4.2004 and on the basis of merg intimation registered merg was recorded

vide Ex.P/8. Investigating officer proceeded for the scene of occurrence and after summoning the witnesses, inquest was prepared over the body

of the deceased vide Ex.P/8. Dead body was sent for autopsy vide Ex.P/9. Autopsy was conducted by the team of doctor vide Ex.P/5 and opined

that cause of death was asphyxia as a result of antemortem hanging. Spot map was prepared by patwari vide Ex.P/2. Sealed clothes of the

deceased were seized vide Ex.P/7. Spot map was prepared vide Ex.P/10. F.I.R. was lodged vide Ex.P/12.

After recording the statements of the witnesses u/s 161 of the Code of Criminal Procedure, 1973 (in short ''Code'') and after completion of

investigation, one charge sheet was filed before the Chief Judicial Magistrate, Katghora who in turn committed the case to the Court of Sessions,

Bilaspur from where learned Additional Sessions Judge, Korba received the same on transfer for trial.

In order to prove the guilt of the accused/Appellant, the prosecution has examined as many as 20 witnesses. Statement of the accused was

recorded u/s 313 of the Code where he denied the circumstances appearing against him and innocency and false implication is pleaded. Appellant

has examined himself as defence witness and taken the defence that Prema Bai was married to him in the year 2003 and at that time there was no

demand of dowry. After her marriage behavior of Prema Bai with the Appellant was abnormal. Sometime she used to press his neck and used to

bite the ear. She used to misbehave with the accused/Appellant. He has also stated that even there was no consumption of marriage. He has tried

his level best but he was not succeeded to maintain physical relation with the deceased. He has lodged the report (Ex.D/2) on 3.10.2003 against

the deceased and also examined Daulatram Dhari (DW-2), Smt. Ramkunwar Bai (DW-3), Ku. Uma (DW-4), Bharat Ratre (DW-5) and Milan

Ratre (DW-6), A. Tirki (DW-7) and Awadh Ram (DW-8) as defence witnesses. Defence witnesses have also deposed that the accused persons

had not committed cruelty or torture upon deceased Prema Bai. Deceased Prema Bai was residing with the present Appellant after her marriage.

They have denied any demand of dowry. A. Tirki (DW-7) has proved Ex.D/2.

Learned Additional Sessions Judge after affording an opportunity of hearing to the parties, convicted and sentenced the Appellant as

aforementioned.

I have heard Mr. K.A. Ansari, Senior Counsel Mrs. Meera Jaiswal, counsel for the Appellant and Mr. Akhil Mishra, Deputy Government

Advocate for the State/Respondent and perused the judgment impugned and record of the Court below.

Learned Counsel for the Appellant vehemently argued that the Appellant was married with deceased Prema Bai but behavior of Prema Bai was

not normal and cordial. She did not like the Appellant and used to misbehave with him. Sometime she tried to press her neck. Sometime she used

to bite his ear and even she has refused to maintain matrimonial relation. The present Appellant never demanded motorcycle, television and other

articles and after death of Prema Bai he has been falsely implicated. The present Appellant has lodged the report on 3.10.2003 against the

deceased relating to her misbehavior. Learned Counsel further submits that on the date of alleged incident, the Appellant was juvenile and below

the age of 18 years but the Court below has disbelieved the claim of the Appellant. Conviction by the Sessions Judge to the juvenile is apparently

and in the absence of any credible and clinching evidence, conviction and sentence of the Appellant is not sustainable under the law.

On the other hand, learned Counsel for the State/Respondent supported the judgment impugned.

In order to appreciate the contentions of the parties, I have examined the material available on record. As regards the age of the Appellant is

concerned, present offence took place on 27.4.2004 and according to inquiry conducted by the trial Court relating to age of the Appellant, his

date of birth was noticed as 15.3.85 and at the time of incident he was aged about more than 18 years. The finding has not been challenged by the

Appellant and it reached into finality.

The Appellant was married with deceased Prema Bai in the year 2003 and she died within 7 years of her marriage on 27.4.2004 as a result of

hanging in the house of the Appellant in abnormal circumstances is not disputed, otherwise established by the statement of Smt. Harihar Bai (PW-

1), Ku. Manjulata (PW-2). G.S. Bhaskar (PW-3), Malik Ram Tandon (PW-4), merg intimation (Exs.P/6 and 8), F.I.R. (Ex.P/12), inquest report

(Ex.P/4), statement of Dr. R.K. Divya (PW-13) and autopsy report (Ex.P/5). On 27.4.2004 the deceased committed suicide by hanging herself

and she died as a result of hanging. Cause of death was due to asphyxia.

The present Appellant has taken specific defence of misbehavior and insanity of the deceased and has lodged written report (Ex.D/2) which is

admitted by the defence witness A. Tirki (DW-7) that he has received written report on 3.10.2003 and also admitted that he has directed the

Appellant for treatment of his wife but he has not taken any action on the basis of such report. Ex.D/2 is written report. But, it is a matter of

surprise that no action has been taken by the police even they have not care to record Rojnamcha of the same. In Ex.D/2 the Appellant has not

mentioned that even the deceased refused to maintain matrimonial relation. The present Appellant has examined himself as defence witness and

specifically deposed that as a result of resistance and misbehavior of the deceased, he has not maintain physical relation with the deceased.

Autopsy was conducted by Dr. R.K. Divya (PW-13) who has noticed that size of uterus was normal and no external injury was found over the

private part of the deceased but nothing has been asked by the defence relating to presence of hymen or anything which would show that marriage

has not been consumed. It shows that the Appellant has not consumed the marriage is admittedly false defence though prosecution cannot take

help of weakness of defence and the prosecution is required to prove its case beyond all shadow of doubt and requires to stand on its own leg.

Smt. Harihar Bai (PW-1) mother of the deceased has deposed that just after marriage the accused persons used to demand colour television

and motorcycle and used to torture Prema Bai and even they do not provide proper meal to her daughter. When she came back to her maternal

house after two days of her marriage then even she told to her mother that their in-law''s and relatives used to quarrel with her and demands

television and motorcycle. She has also deposed that when she went to the house of the Appellant with her daughter then they also demanded

colour television and motorcycle, then she called some persons of the Village Gumiya where the Appellant and her relatives were residing and

narrated the incident to them. She has also deposed that before 20 to 25 days of the incident she took the deceased to her house for festival and

again on 25.4.2004 she went along with deceased to the house of the Appellant where the Appellant and his relatives have quarreled with her and

again demanded motorcycle and colour television and threat her that if she will not provide colour television and motorcycle then she will see dead

body of her daughter. She left the deceased in the house of the Appellant and came back to her house. On 27.4.2004, she came to know that her

daughter had committed suicide. Ku. Manjulata (PW-2) sister of the deceased has also corroborated the statement of her mother Smt. Harihar Bai

(PW-1). G.S. Bhaskar (PW-3) brother-in-law, Malik Ram Tandon (PW-4), maternal uncle of the deceased, Ghasiram (PW-5), brother-in-law of

the deceased, Phulsai (PW-7) grandfather of the deceased, Manharan Singh (PW-8) grandmother of the deceased and Jagmohan (PW-9)

neighbour of father of the deceased have deposed that the Appellant, father, mother and other relatives used to demand motorcycle, television and

other articles and used to commit cruelty and torture upon the deceased. The Appellant has examined himself as defence witness but he has

admitted that on 25.4.2004 his wife was not present in his house and she was at her mother house. The other defence witnesses have deposed that

Bharat was present at the time of incident and Bharat who is son-in-law of the co-accused Daulat Ram did not frequently visit the house of Daulat

Ram. He is not connected anything with the incident. Other witnesses have also deposed that according to their information, the accused persons

have not demanded dowry but in their cross-examination, they were having no knowledge about the incident.

In the present case, the deceased was died within one year of her marriage in abnormal circumstances in the house of the Appellant.

Learned Counsel for the Appellant also argued and attacked upon the propriety of the investigation on the ground that the present investigating

officer Emil Lakda (PW-20) has specifically deposed that he has started investigation on 30.4.2004 and registered the offence on 29.4.2004 vide

Ex.P/12. He has also admitted that on 29.4.2004 or 30.4.2004, relatives of the deceased have not lodged any report and also admitted that he

used to investigate the offence in accordance with law. Learned Counsel further argued that the investigating officer recorded the statements of the

witnesses whose residence are 50 to 100 km. away from police chowki. He has admitted in para-4 of his evidence that he has recorded the

statements at police chowki Hardi Bazaar.

Virtually defence has tried to show that alleged F.I.R. (Ex.P/12) has been lodged on 30.4.2004, then how it is possible for the investigating

officer to record the statements of the witnesses u/s 161 of the Code on 29.4.2004. Present F.I.R. (Ex.P/12) is based on the F.I.R. registered

under 0/2004 by the investigating officer on 29.4.2004 and on 29.4.2004 after recording the F.I.R. the investigating officer has recorded the

statements of the witnesses. The investigating officer has not committed any illegality or any departure from the law or rules when all the witnesses

were present at police chowki Hardi Bazaar. The investigating officer was under obligation to record the statements of the witnesses on same day

which he has done.

In the present case, in order to establish the charge of Section 304-B of the Indian Penal Code, the prosecution is required to prove the

demand of dowry ''soon before the death of Pushpa Bai''. Pushpa Bai died on 27.4.2004 as a result of hanging in the house of the present

Appellant who is husband of the deceased within one year of her marriage. Smt. Harihar Bai (PW-1) mother of the deceased has specifically

stated in para-6 of her evidence that just before two days the deceased came back to the house of the Appellant where they threatened the

deceased and her mother in connection with demand of dowry and she committed suicide within two days.

In order to prove demand of dowry soon before her death, there must be nexus between demand of dowry and alleged commission of suicide

of the deceased. In the matter of Prem Kanwar Vs. State of Rajasthan, , the Apex Court has held that for raising a presumption of dowry death

u/s 113B of the Evidence Act there must be proximity and live-link between the effect of cruelty based on dowry demand and the concerned

death. Para 12 of the said judgment reads as under:

A conjoint reading of Section 113B of the Evidence Act and Section 304B, IPC shows that there must be material to show that soon before

her death the victim was subjected to cruelty or harassment. 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 113B of the Evidence Act and Section 304B, IPC are pressed into service. 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 prosecution.

''Soon before'' is a relative term and it would be depend upon circumstances of each case and no strait-jacket 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 u/s 113B of the Evidence Act. The expression

''soon before her death'' used in the substantive Section 304-B, IPC and Section 113B of the Evidence Act is present with the idea of proximity

test. No definite period has been indicted and the expression ''soon before'' is not defined. A reference to 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 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 concerned cruelty or harassment 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 concerned death. If alleged incident of cruelty is remote in time and has become stale enough not

to disturb mental equilibrium of the woman concerned, it would be of no consequence.

In the present case statements of the witnesses supported by the prompt lodged F.I.R. (Ex.P/12) is sufficient for drawing inference that the

accused has demanded motorcycle and committed cruelty and torture upon the deceased even just after two days before the death of the

deceased and as a result of such cruelty and torture, no option except to end of her life was left to the deceased and deceased has ended her life

by committing suicide. The alleged act of torture and cruelty is independently punishable offence u/s 498A of the Indian Penal Code.

After appreciating the evidence available on record, learned Court below has acquitted other co-accused on the ground that evidence adduced

by the prosecution was not sufficient to warrant conviction against them and has convicted and sentenced the present Appellant as aforementioned.

Conviction and sentence of the Appellant is based on credible and clinching evidence sustainable under the law. As a result of cruelty, one young

woman i.e. wife has ended her life. The sentence awarded by the Court below is neither excessive nor unjust. I do not find any illegality or infirmity

in the judgment impugned.

For the foregoing reasons, the appeal has no merit, same is liable to be dismissed and is accordingly dismissed.