Rajani Dubey, J.:— The present appeal arises out of the impugned judgment of conviction and order of sentence dated 03.08.1999 passed by the learned IV Additional Juge, Bilaspur (M.P.), in S.T. No. 114/1998 whereby, the learned Additional Sessions Judge has convicted and sentenced the appellant as under:—
Conviction Sentence U/s 304-B of IPC R.I. for 7 years and fine of Rs. 2000/- in default of fine additional R.I. for 1 year.
2. Brief facts of the case are that on 11.06.1997 Harshlata daughter of Ashok Kumar (PW-1) was married with accused Laxmikant. Before the marriage, a scooter was demanded by the accused, but the father of the deceased agreed to give Luna and the marriage was fixed. At the time of the marriage, accused had given 10 × 5 grams gold, steel almirah, Sofa Set, T.V. and Rs. 5000/- for the cost of the procession. Father of the victim gave these items as dowry. At the term of the marriage, again the accused started asking for a scooter instead of Luna, when the father of victim had expressed his inability. After marriage, victim came back to her maternal house and told that her in-laws harass her by beating her and saying that she had brought fewer items in dowry. After this, accused Laxmikant and victim had come on Bhaidooj festival, even then the accused had said that if he will not provided said scooter and Rs. 1000/- in cash, he will leave the victim, then after explaining to Laxmikant victim's father sent back to his daughter. On 12.12.1997 father of the victim received an information that his daughter has been burnt by the fire and is serious. On this, Ashok Kumar reached at the house of his daughter and saw that her daughter was laying dead in her room and was completely burnt. On 12.12.1997 a marg report (Ex.-P/1) was lodged by the constable of Chakarbhata police Station. Panchnama of the dead body vide Ex.-P-4 was prepared. Match box, pieces of bangles, burnt sarees, half-burnt clothes, container of kerosene were seized vide Ex.-P/5 from the spot. Dr. N. Sharma (PW-14) conducted the postmortem of the deceased vide Ex.-P/4 and he was opined that the whole body of the deceased was burnt which caused death due to suffocation. Vide Ex.-P/11. spot map was prepared by G.S. Darra (PW-13). On 16.12.1997 vide Ex.-P/13 FIR was registered. During the investigation vide Ex.-P/2 letters were seized which were written by the deceased to her father. Thereafter, seized materials were sent for chemical examination to the Forensic Science Laboratory, Sagar. After investigation charges-sheet was filed and charge was framed under Section 304-B of IPC against the appellant and other co-accused persons.
3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 15 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case.
4. Upon consideration of oral and documentary evidence the trial Court acquitted the other co-accused persons namely Pannalal, Shashikant and Uttarabai of the charge under Section 304-B of IPC and held that the prosecution has established the guilt of the present accused/appellant under Section 304-B of IPC and sentenced him as mentioned above. Hence, this appeal.
5. Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence under Section 304-B of IPC against the appellant is illegal and perverse. He next submits that the learned trial Court has failed to observe that the prosecution has failed to prove its case beyond all reasonable doubts. He further submits that the general and vague allegation of ill treatment is not sufficient to establish the offence under Section 304-B of I.P.C. The learned trial Court has relied upon the evidence given by the interested and partition witnesses without there being any corroboration of any independent material particular. The prosecution witnesses are interested and partition prior to the death of deceased none of them raised any dispute about ill treatment. The incident had occurred on 12.12.1997 but the offence was registered on 16.12.1997 and the statement of the witnesses were recorded on 23.12.1997. Prosecution witnesses have given materially different story about the demand and cruelty with the deceased by the appellant. Sakuntala (PW-3), mother of the deceased has stated in her statement that the appellant had asked for Rs. 10,000/- for the purpose of opening a shop and also promised to return the same after due earning, such request for help cannot be regarded as dowry. The statements of the father, mother and sister are clearly indicating that there was no settlement of dowry, there was no demand of dowry vide Ex.-P/2, Ex.-D/1, Ex.-D/2, Ex.-D/3 and Ex.-D/4, but the learned trial Court has failed to consider the evidence on record given by the prosecution witnesses. He lastly submits that the in this case other accused persons have been acquitted by the trial Court in the same set of evidence so the appellant cannot be convicted. The learned trial Court has failed to apply the well established principle regarding appreciation of evidence, all the prosecution witnesses are not fully reliable, in view of their conduct and contradictions other accused persons were acquitted so the present appellant is also liable to be acquitted, therefore, the impugned judgment of conviction is liable to be set aside. In support of his argument he has placed reliance in the matters of Bhagwat Sahu v. State Of M.P. 2011 (2) C.G. L.R.W. 155, Deepak Kumar Mishra v. State of M.P. 2011 (3) C.G. L.R.W. 214, Meka Ramaswami v. Dashri Mohan AIR 1998 SC 774, Anubha Dave v. State of C.G. 2018 (5) C.G.L.J. 485, Ganesh Ram Alias Tedgi v. State of C.G. 2018 (5) C.G.L.J. 469 (DB) and Dhana Bai Verma v. State of C.G. 2018 (5) C.G.L.J. 459.
6. On the other hand State counsel supported the impugned judgment of conviction and order of sentence.
7. Heard counsel for both the parties and perused the material available on record including the impugned judgment.
8. In the instant case, charges-sheet was filed against the four accused persons namely, Laxmikant (husband of the deceased), Pannalal (father-inlaw of the deceased), Shashikant (brother-in-law of the deceased) and Uttarabai (mother-in-law of the deceased), whereas the learned trial Court acquitted the three accused persons except the appellant of the charge under Section 304-B of the IPC and the appellant is convicted for the said offence. Learned trial Court has held in para-26 as under:—
9. Ashok Kumar (PW-2), father of the deceased has stated as under:—
10. Shakuntala (PW-3), mother of the deceased has stated as under:—
11. Manisha Shukla (PW-4), sister of the deceased has stated as under:—
12. Ramgulam Mishra (PW-5) has stated as under:—
13. Rama Mishra (PW-6) has stated as under:—
14. In the instant case, two letters of deceased, Ex.-D/1 and Ex.-D/2 were admitted by the Ashok Kumar (PW-2), father of the deceased and has stated in para 15 as under:—
15. Letters Ex.-D/1 and Ex.-D/2 were written by the deceased but in both the letters, deceased has not written a single word about the harassment and demand of dowry. In the matter of Dwarika Prasad v. State of C.G. 2018 (5) C.G.L.J. 80, this Court observed in para 19 which reads thus:—
19. Necessary ingredients for invoking the provisions of Sections 302, 304B and 306 of the Penal Code, 1860 read with Section 113B of the Indian Evidence Act have been discussed by the Supreme Court in the case of Narayanamurthy v. State of Karnataka (2008) 4 Supreme 228. 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 offence 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 different 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.
22. 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 inflicted on her. If the interval which elapsed between the infliction 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 sufficient to snuff its cord from the concept ‘soon before her death’.”
16. In the case of Sanjiv Kumar v. State Of Punjab . (2009) 16 SCC 487 it has been held in paras 16-17 which reads thus:—
“16. Having regard to the evidence on record, the question arises as to whether the prosecution has proved its case beyond reasonable doubt. Under Section 304-B IPC the prosecution is required to establish that the death was caused by any burn or bodily injury or occurred otherwise than under normal circumstances, that such death took place within seven years of marriage, and that it is shown that soon before her death the woman was subjected to cruelty or harassment by her husband for dowry. It these facts are established by the prosecution, the presumption under Section 113-B, Evidence Act, 1872, arise and the court shall presume that such person who had subjected the woman to cruelty or harassment in connection with any demand for dowry shall be presumed to have cause the dowry death. The presumption that arises in such cases may be rebutted by the accused.”
“17. If the accused successfully rebuts the presumption by pleading and proving a probable defence, the presumption under Section 113-B stands rebutted and the prosecution must prove its case without the aid of such presumption. It must logically follow that in a case where such presumption arises, the evidence, oral, circumstantial or documentary, adduced in defence must be examined by the court with a view to find whether the presumption stands rebutted. It is essentially a matter of appreciation of evidence.”
17. In the instant case, all the witnesses have stated in their evidence that appellant demanded money for his shop, there is no evidence on record to establish that the deceased was harassed by the appellant soon before her death. The prosecution has failed to prove all the ingredients required to hold an accused guilty under Section 304-B of IPC. On the contrary, the presumption under Section 113-B of the Evidence Act has been successfully rebutted by the accused person by pleading and proving a probable defence by the admitted suggestion of the letters Ex.-D/1 and Ex.-D/2, the findings recorded by the Court below convicting the accused/appellant under Section 304-B of IPC are not based on due appreciation of the evidence on record and therefore findings liable to be set aside.
18. As discussed above, the impugned judgment of conviction and order of sentence is set aside. The appeal is allowed and the accused/appellant is acquitted of the charge levelled against him. As the appellant is on bail, he need not surrender and his bail bonds and sureties stand discharged.
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