Sheshuraj Marian vs State Of Chhattisgarh

Conviction,Sentence

Under Section 304B of the Indian Penal Code,Rigorous Imprisonment for 7 years

The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10.8.1988 on,

Dowry Deaths and Law Reform"". Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the",

legislature through it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that,

presumptive Section 113-B in the Evidence Act has been inserted. As per the defnition of ""dowry death"" in Section 304-B IPC and the wording in the",

presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned",

must have been ""soon before her death"" subjected to cruelty or harassment ""for or in connection with the demand of dowry"". Presumption under",

Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the",

accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:,

(1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can,

be raised only if the accused is being tried for the ofence under Section 304-B IPC).,

(2) The woman was subjected to cruelty or harassment by her husband or his relatives.,

(3) Such cruelty or harassment was for or in connection with any demand for dowry.,

(4) Such cruelty or harassment was soon before her death.""",

Similar observation was made by this Court in Balwant Singh and another v. State of Punjab (2004) 7 SCC 724 : (AIR 2005 SC 1504). In the said,

case this Court held:,

These decisions and other decisions of this Court do lay down the proximity test. It has been reiterated in several decisions of this Court that",

soon before"" is an expression which permits of elasticity, and therefore the proximity test has to be applied keeping in view the facts and",

circumstances of each case. The facts must show the existence of a proximate live link between the efect of cruelty based on dowry demand and the,

death of the victim.""",

In the present case, from the statement of PW.1 it appears that the death took place within seven years of marriage. Admittedly, death of the",

deceased was due to burning i.e. not in normal circumstances. We have to see now whether the remaining two ingredients are satisfed looking into,

the evidence on record.""",

In (2008) 1 SCC 202 (Biswajit Halder v. State of W.B.), it was further observed by the Supreme Court thus:",

If Section 304-B IPC is read together with Section 113-B of the Evidence Act, a comprehensive picture emerges that if a married woman dies in",

unnatural circumstances at her matrimonial home within 7 years form her marriage and there are allegations of cruelty or harassment upon such,

married woman for or in connection with demand of dowry by the husband or relatives of the husband, the case would squarely come under ""dowry",

death"" and there shall be a presumption against the husband and the relatives.",

In this case we fnd that there is practically no evidence to show that there was any cruelty or harassment for or in connection with the demand of,

dowry. There is also no fnding in that regard. This defciency in evidence proves fatal for the prosecution case. Even otherwise mere evidence of,

cruelty and harassment is not sufficient to bring in application of Section 304-B IPC. It has to be shown in addition that such cruelty or harassment,

was for or in connection with the demand for dowry. (See Kanchy Komuramma v. State of A.P., 1995 Supp (4) SCC 118) Since the prosecution",

failed to prove that aspect, the conviction as recorded cannot be maintained.""",

Further, in (2017) 1 SCC 101 (Baijnath v. State of Madhya Pradesh), it was observed by the Supreme Court as follows:",

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 frst spell out the ingredients of the ofence 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 ofence 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 efect that to attract the provision of",

Section 304B of the Code, one of the main ingredients of the ofence which is required to be established as that ""soon before her death"" she was",

subjected to cruelty and harassment ""in connection with the demand for dowry"".""",

Now, I shall consider the evidence of the instant case in the light of above view taken by the Supreme Court. In the case in hand, it is not in",

dispute that the deceased was married with Appellant No.1 on 8.10.2008 and she died at her matrimonial house due to burn injuries, i.e., in an",

unnatural circumstance in the intervening night of 26th and 27th of July, 2009. Her death was within 7 years of the marriage. Now, it needs to be",

considered whether ""soon before her death"" she was subjected to cruelty or harassment by the Appellants for demand of dowry. In this regard, the",

statements of S. Babu Rao (PW4) and S. Roseline Rao (PW5), father and sister of the deceased, respectively are required to be appreciated.",

In their Court statements, S. Babu Rao (PW4) and S. Roseline Rao (PW5) deposed that in the month of May, 2009, they along with the wife of S.",

Babu Rao (PW4) had gone to Chennai to visit ( darshan) Mother Merry where the deceased had also come along with her husband/Appellant No.1.,

S. Roseline Rao (PW5) further deposed that there the deceased had told her that Appellant No.1 had a love relationship with a girl and on being asked,

in this regard he used to beat her. She further deposed that the deceased was being subjected to cruelty for demand of Rs.1,00,000 for purchase of a",

car. She further deposed that she had heard that Appellant No.1 was impotent. S. Babu Rao (PW4) deposed that he had met with the deceased at,

Chennai in the evening of that day. At that time, the deceased had complained him of her mother-in-law/Appellant No.3 that she was not good at her",

and she used to harass her. This witness also deposed that he had come to know that Appellant No.1 had a love relationship with a girl and on being,

asked in this regard, he used to beat the deceased. This witness further deposed that he had also come to know that Appellant No.1 was impotent. In",

paragraph 13, this witness admitted that till the deceased resided at her matrimonial house, this witness was in contact with her on mobile phone. He",

further admitted that in the month of January, 2009, the deceased had come to his house for about 15 days and at that time she had told him that she",

was happy at her matrimonial house and all the family members of her matrimonial house were good at her. This witness further admitted the fact that,

the application (Ex.D3) was signed by him. From perusal of Ex.D3, it appears that the fact relating to subjection of the deceased to cruelty or",

harassment for demand of dowry is not mentioned therein. Though this witness deposed that no such application was given by him to police, he has",

not explained why, how and when he signed the application (Ex.D3). This witness also admitted the fact that on 5.11.2009, he had gone to Durg along",

with one Ramesh (Advocate) for bringing the belongings of the deceased, but on 5.11.2009 or before that no complaint was made against the",

Appellants in police station. S. Roseline Rao (PW5), in paragraph 12 of her cross-examination, deposed that in the month of January, 2009, when the",

deceased had come to their house, at that time, she had not made any complaint regarding demand of dowry. In paragraph 16, she further admitted",

that she had also gone to Durg along with her father and Advocate Ramesh for bringing the belongings of the deceased. But, on that day or prior to",

that, they had not made any report against the Appellants. The written complaint (Ex.P5), which was lodged by S. Roseline Rao (PW5) bears the date",

of 21.12.2009 and this complaint was typed and printed out from a computer. In paragraph 16 of her cross- examination, S. Roseline Rao (PW5)",

admitted the fact that the written complaint (Ex.P5) was prepared by whom was not known to her.,

On a minute examination of the above statements of S. Babu Rao (PW4) and S. Roseline Rao (PW5), father and sister of the deceased,",

respectively, it is clear that after 5 months of the death of the deceased, the written complaint (Ex.P5) dated 21.12.2009 was lodged by S. Roseline",

Rao (PW5). From the admissions made by S. Babu Rao (PW4) and S. Roseline Rao (PW5), it is also clear that at the time of inquest proceeding both",

were present, but no complaint was made by any of them at that time nor even thereafter against the Appellants for subjecting the deceased to cruelty",

or harassment for demand of dowry. Instead, S. Babu Rao (PW4), father of the deceased made the application (Ex.D3) addressing the same to",

Station House Officer, but even in Ex.D3 he did not mention any fact regarding subjection of the deceased to cruelty or harassment for demand of",

dowry. Though S. Babu Rao (PW4) deposed that he had not given any such application to police, why, how and when he signed the application",

(Ex.D3) has not been explained by him. From the admissions made by both these witnesses, it is also clear that they had gone to Durg along with",

Advocate Ramesh on 5.11.2009 for bringing the belongings of the deceased, but on that day also, none of them made any complaint against the",

Appellants. Had there been really a complaint of subjection of the deceased to cruelty or harassment for demand of dowry, they would have raised a",

complaint in this regard on 5.11.2009 or prior to that. But, the complaint was made on 21.12.2009 vide Ex.P5. From the admissions made by the above",

two witnesses, it is also clear that in the month of January, 2009, when the deceased had visited their house, till that time, no complaint was made by",

the deceased regarding demand of dowry. It is the admission of S. Babu Rao (PW4), father of the deceased that he was in contact with the deceased",

on mobile phone, but he never raised any complaint regarding any demand of dowry. In the month of May, 2009, at Chennai also, the deceased did not",

make any complaint to his father regarding her subjection to cruelty or harassment by the Appellants. Therefore, ""soon before her death"", the",

deceased was subjected to cruelty or harassment for demand of dowry is suspicious. In the circumstances, conviction of the Appellants under Section",

304B of the Indian Penal Code is not sustainable and they are entitled to get benefit of doubt.,

Consequently, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellants are acquitted of the charge",

framed against them.,