Research › Search › Judgment

Chhattisgarh High Court · body

2012 DIGILAW 315 (CHH)

SIDDH GOPAL NAREDI v. STATE OF C. G.

2012-12-01

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 4.4.2011 passed by Additional Sessions Judge (Link Court) Dongargarh, District Rajnandgaon in Sessions Trial No. 09/2010 convicting the accused/appellants for the offence punishable under Section 304 (B) IPC and sentencing each of them to undergo RI for seven years and pay fine of Rs. 1000/-, in default of payment of fine to further undergo RI for three months. 2. Name of the deceased in this case is Kirti and the accused/appellant No. 1 Siddh Gopal Naredi is her father-in-law whereas accused/appel1ants No. 2 to 4 namely Sonu alias Aatish, Vikky alias Aashish and Smt. Rajkumari Naredi are her husband, brother-in-law and mother-in-law respectively. Marriage of the deceased was solemnized with accused/ appellant No. 2 namely Sonu alias Aatish on 16.2.2010 at Dongargarh and she died on 24.6.2010 after sustaining burn injuries. Merg intimation Ex. P-10 was given on that day itself by the neighbour of accused/appellants. On 24.6.2010 itself written report Ex. P-8 was lodged by Vinod Agrawal (PW-11) who happened to be the uncle of the deceased and based thereupon FIR Ex. P-12 was registered against the accused/appellants on that day itself for the offence under Section 304-B/34 IPC. Postmortem examination on the body of the deceased was conducted on 24.6.2010 itself vide Ex. P-9 wherein cause of death as opined by the doctor was shock due to asphyxia whereas nothing with regard to nature of death has been opined by him. After investigation, charge-sheet was filed by the police on 14.7.2010 under Section 304-B/34 IPC. However, Court below framed the charge under Sections 302/34 and 304-B IPC against the accused/appellants. 3. In support of its case the prosecution has examined 15 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they pleaded their innocence and false implication in the case. This apart, one B. Ekka (DW-1) has also been examined by the defence in support of its case. 4. After hearing the parties, the Court below convicted and sentenced the accused/ appellants as mentioned in paragraph No. 1 of the judgment. 5. Counsel for the accused/appellants submits that the main reason for the deceased to commit suicide is that her husband (appellant No. 2) was less educated than her because the husband was educated up to 12th standard whereas she herself was a postgraduate. 5. Counsel for the accused/appellants submits that the main reason for the deceased to commit suicide is that her husband (appellant No. 2) was less educated than her because the husband was educated up to 12th standard whereas she herself was a postgraduate. Secondly, according to the counsel for the accused/appellants the deceased was not happy in her matrimonial home as her husband (appellant No. 2) was having the business of transport and she was having a feeling that he was working as labourer (Hammal). He further submits that deceased had a complaint against her husband because in connection with his work he used to remain out throughout the day and return home late in the night. He submits that all the witnesses have categorically stated that no dowry was demanded or settled at the time of marriage, that all the expenses of marriage were borne by the parents of the deceased and the marriage was solemnized after the accused/appellants had seen and liked the deceased. He further submits that in the statements record under Section 161 of the Code of Criminal Procedure none of the witnesses has stated that any dowry was demanded by the accused/appellants. According to him, some of the witnesses have merely stated that Rs. 5 lakhs were demanded by them. He further submits that first no demand was made as it was not in the capacity of the family members of the deceased to fulfill the same and that even if some money was demanded by them, the prosecution has not been able to prove that it was demanded as dowry. He submits that as per the definition of dowry given under Section 304-B IPC and Section 2 of Dowry Prohibition Act, there has to be specific allegation that demand made by any person was in connection with marriage and demanded as dowry and unless this fact is proved by the prosecution, offence under Section 304-B IPC is not made out. He submits that while deposing in the Court all the material witnesses i.e. Vandana Agrawal (PW-4), Mamta Agrawal (PW-5), Arti Agrawal (PW-6), Suresh Kumar (PW7) and Vinod Kumar (PW-11) have made the allegation of demand of dowry and resultant cruelty against the accused/appellants. He submits that while deposing in the Court all the material witnesses i.e. Vandana Agrawal (PW-4), Mamta Agrawal (PW-5), Arti Agrawal (PW-6), Suresh Kumar (PW7) and Vinod Kumar (PW-11) have made the allegation of demand of dowry and resultant cruelty against the accused/appellants. He drew the attention of this Court to the statement of Prakash Agrawal (PW-13) where he has stated that at the time of postmortem examination of the deceased there was a dispute between Vinod Agrawal - uncle of the deceased and the father of the deceased as Vinod Agrawal was interested to lodge the report against the accused/appellant whereas father of the deceased was of the opinion that accused persons are good and therefore false report should not be lodged against them. Referring to the statement of Prakash Agrawal (PW-13) counsel for the accused/appellants submits that last rites of the deceased were performed by her brother-in-law Vijay alias Aashish (appellant No. 3) because as per the custom prevailing in their community brother-in-law was treated as son. He submits that while saving the life of the deceased accused/ appellant No. 2 namely Sonu alias Aatish tried to extinguish the fire and while doing so he too suffered bum injuries which has been proved by Dr. B. Ekka (DW-1). He submits that after marriage the deceased had visited various places but did not make any complaint against the accused/appellants and had there been any demand coupled with cruelty, she would definitely have apprised her relatives of the same. He submits that no report was ever lodged by the deceased regarding harassment or cruelty meted out to her before the incident. Referring to inquest Ex. P-2 counsel for the accused/appellants submits that at the time of death deceased was wearing all the gold ornaments and thus the allegation of the witnesses that her ornaments were snatched by the accused/ appellants is not correct. To substantiate this fact, counsel for the accused/appellants relied upon the evidence of P.R. Nim1al (PW-2). According to the counsel for the accused/appellants, prosecution has failed to discharge its burden of proving the demand of dowry alleged to have been made by the accused/appellants and therefore presumption under Section 113-B of the Evidence Act is not attracted. According to him, nowadays it has become a fashion where after the death of daughter-in-law all the family members of matrimonial home are implicated by her parents or relatives. According to him, nowadays it has become a fashion where after the death of daughter-in-law all the family members of matrimonial home are implicated by her parents or relatives. He submits that intentionally the prosecution has not examined the father of the deceased as according to Prakash Agrawal (PW-13) he was not willing to falsely implicate the accused/appellants and that non examination of this important witness is fatal to the case of the prosecution. In support of his submissions, counsel for the accused/appellants placed his reliance on the decisions of the Supreme Court in the matters of Sunil Bajaj Vs. State of M.P (2001)9 SCC 417 , Durga Prasad and another Vs. State of Madhya Pradesh, (2010) 9 SCC 73 Sanjiv Kumar Vs. State of Punjab (2009) 16 SCC 487 , Gurucharan Kumar and another Vs. State of Rajsthan (2003)2 SCC 698 , Biswajit Halder (2008) 1 SCC 202 , Appasaheb and another Vs. State of Maharashtra (2007) 9 SCC 721 and Javed Masood and another Vs. State of Rajsthan AIR 2010 SC 979 . 6. On the other hand, counsel for the respondent/State supports the judgment and submits that within four months of marriage the deceased put an end to her life which shows that she was subjected to cruelty and harassment by the accused/appellants otherwise there was no reason for a newly wedded girl to do so. He submits that in the Court all the witnesses have deposed that deceased was subjected to cruelty and that even if they have not made any allegation like that in their case diary statements it hardly makes any difference. He further submits that Vandana Agrawal (PW-4), Mamta Agrawal (PW-5), Arti Agrawal (PW-6), Suresh Kumar (PW-7) and Vinod Kumar (PW-11) have categorically stated about the manner in which deceased was subjected to demand of Rs. 5,00,000/-. 7. Heard counsel for the parties and perused the material available on record. 8. Pt. Trilok Prasad Dubey (PW-1) neighbour of the accused/appellants is the witness of inquest notice Ex. P-1 and inquest Ex. P-2 who has not supported the case of the prosecution and has been declared hostile. P.R. Nirmal (PW-2) is the Tehsildar who conducted inquest vide Ex. P-2 has stated that at the time of inquest deceased was wearing gold mangalsutra, gold nose pin, ring and ear tops. P-1 and inquest Ex. P-2 who has not supported the case of the prosecution and has been declared hostile. P.R. Nirmal (PW-2) is the Tehsildar who conducted inquest vide Ex. P-2 has stated that at the time of inquest deceased was wearing gold mangalsutra, gold nose pin, ring and ear tops. According to this witness, at the time of inquest no complaint was made by the family members of the deceased regarding demand of Rs. 5,00,000/- or any dowry leading to cruelty meted out to her. Lalchand Khotragarhe (PW-3) is the Revenue Inspector who prepared spot map (Ex. P-6). Vandana Agrawal (PW-4) the mother of the deceased has stated that marriage of her daughter (deceased) was solemnized with accused/appellant No. 2 namely Sonu alias Aatish on 16.2.2010, she lived in her in-laws' house properly for 8-10 days and thereafter she was subjected to cruelty by the accused/appellants for demand of Rs. 5,00,000/- as dowry. Accused/appellants are also stated to have snatched all the ornaments worn by the deceased and they used to harass her saying that they would kill her if she did not get money from her parents house. They also used to threaten her saying that she would be dropped at her maternal house if she did not keep their word. This witness has further stated that when she sent her brother-in-law Vinod Agrawal and his wife Mamta Agrawal to the house of the accused/appellants to take stock of the situation, to them also they (accused/appellants) made a demand of Rs. 5,00,000/- and told them that they would kill the deceased or leave her. Thereafter, she received a telephonic call from her daughter asking her as to who was coming to take her back from her in-laws house. According to this witness, the deceased was beautiful and had studied M.A. in political science. She has admitted that marriage of the deceased was performed at Dongargarh and at the time of marriage no dowry was demanded or settled by the accused/appellants. She has further admitted that after seeing the deceased, the accused/appellants had agreed for her marriage and that the marriage was solemnized in a healthy atmosphere. She has admitted that the marriage of the deceased with accused/appellant No. 2 was performed through mediator Laxmi Narayan Agrawal, resident of Dongargarh. She has further admitted that after seeing the deceased, the accused/appellants had agreed for her marriage and that the marriage was solemnized in a healthy atmosphere. She has admitted that the marriage of the deceased with accused/appellant No. 2 was performed through mediator Laxmi Narayan Agrawal, resident of Dongargarh. She has further admitted that after marriage, on 2-3 occasions the deceased had come to her house and at the time of Holi festival, husband of the deceased (accused/appellant No.2) too had visited her house. According to this witness, husband of the deceased was having four vehicles and carrying out the business of transport. For his business, he used to leave his house early in the morning and return late in the night. She has further admitted the fact that no report was made before the death of the deceased against the accused/appellants nor any Panchayat meeting was called. According to her, even before marriage, the deceased lived in the house of the accused/appellants for two days. She has stated that the fact of dowry and resultant cruelty was disclosed to the police but if the same is not recorded in her case diary statement, she could not tell the reason for that. On being confronted with her case diary statement Ex. D-1 this witness has stated that she was not aware as to why the police did not record all the things which she narrated in the Court. In paragraph No. 9 this witness has stated that her daughter was post graduate whereas accused/appellant No. 2 had studied up to 12th standard. Mamta Agrawal (PW-5) aunt of the deceased has made almost similar statement as made by Vandana Agrawal (PW-4). She has stated that though she used to have a talk to the deceased on cell phone, she could not tell the number of her phone nor that of the deceased. Then she has stated that she was not having either the cell phone or the land-line number. According to this witness, she could not tell the time and date on which calls were made. Then she has stated that she was not having either the cell phone or the land-line number. According to this witness, she could not tell the time and date on which calls were made. She has stated that at the time of marriage of the deceased being fixed, financial condition of her family members was disclosed to the accused/appellants and it was made clear that they were not in a position to give anything and that the accused/appellants had agreed for the marriage after seeing the deceased which was solemnized at Dongargarh. On being confronted with her case diary statement Ex. D-2, this witness has stated that she had disclosed all the things to the police but why they are not mentioned in it she cannot tell the reason. Arti Agrawal (PW -6) the sister of the deceased has also made almost similar statement as made by Vandana Agrawal (PW-4) and Mamta Agrawal (PW-5). She has stated that she used to have a talk to her sister (deceased) on phone who informed her about the manner in which she was harassed by the accused/appellants. She has stated that as mother-in-law of the deceased was not at home and she (deceased) was feeling loneliness, in the month of April she lived in the house of the accused/appellants for 15-20 days but she has not stated anything that during this period the deceased was harassed or subjected to cruelty by them for demand of dowry. This witness has stated that she cannot tell as to when Rs. 5,00,000/- were demanded by the accused/appellants. Suresh Kumar (PW-7) - uncle of the deceased in relation has also made almost similar statement as made by Vandana Agrawal (PW-4), Mamta Agrawal (PW-5) and Arti Agrawal (PW-6). He however has admitted that marriage was solemnized properly and no demand of dowry was made by anyone. He has stated that at the time of recording case diary statement Ex. D-4, he had made all the allegations against the accused/appellants but if they are not mentioned therein, he cannot say anything. Daulat Agrawal (PW-8) is the witness to inquest Ex. P-2 and seizure made under Ex. P-7 who has not stated anything specific. Om Prakash Agrawal (PW-9) - relative of the deceased has stated that when he met mother of the deceased, she informed him that the accused/appellants used to harass the deceased. Daulat Agrawal (PW-8) is the witness to inquest Ex. P-2 and seizure made under Ex. P-7 who has not stated anything specific. Om Prakash Agrawal (PW-9) - relative of the deceased has stated that when he met mother of the deceased, she informed him that the accused/appellants used to harass the deceased. He has admitted that at the time of marriage no demand of dowry was made. He has stated that at the time of recording case diary statement Ex. D-5, he had made all the allegations against the accused/appellants but if they are not mentioned therein, he cannot say anything. Sitaram (PW-10) - witness to seizure has not stated anything specific. Vinod Kumar (PW-11) - uncle of the deceased and lodger of the written report has made almost similar allegations as made by Vandana Agrawal (PW-4), Mamta Agrawal (PW-5) and Arti Agrawal (PW-6). He has also admitted that at the time of settlement of marriage no dowry was settled and that for contesting the case he had communicated to the counsel and further before making the Court statement he had read his case diary statement. He has stated that marriage of the deceased was solemnized after mediation of Laxmi Narayan Agrawal of Dongargarh. Dr. VK. Chandravanshi (PW-12) is the witness who conducted postmortem examination on the body of the deceased and stated that cause of death was shock due to asphyxia. Prakash Agrawal (PW-13) - an independent witness who lodged the merg intimation Ex. P-10 has stated as to how he reached the place of incident and saw the dead body of the deceased. He has stated that the appellants were trying to open the door and extinguish the fire. He has stated that while extinguishing fire accused/appellant No. 2 also suffered burn injuries. According to this witness, the deceased used to visit his house and she was being kept well by the accused/appellants. This witness has further stated that he never noticed any dispute between the deceased and the accused persons. Deceased used to tell him that accused/appellant No. 2 was less educated and that he was working as a driver and used to return home late in the night for which she was unhappy. According to him, his wife used to console the deceased saying that the work undertaken by the accused/appellant No. 2 had to be performed by him. Deceased used to tell him that accused/appellant No. 2 was less educated and that he was working as a driver and used to return home late in the night for which she was unhappy. According to him, his wife used to console the deceased saying that the work undertaken by the accused/appellant No. 2 had to be performed by him. Deceased also informed him that she had studied after hard work but her education went in vain. In paragraph No. 4 this witness has stated that marriage of deceased with appellant No. 2 was solemnized at Dongargarh and all the expenses were borne by accused/appellant No. 1. In paragraph No. 5 he has stated that deceased never made any complaint of dowry or cruelty and that she used to feel bad as her husband was working as Hammal and for that she used to remain sad. He has stated that immediately after the incident family members of the deceased had reached there and though TI and Tehsildar were present, they did not make any complaint to them. According to this witness, when body of the deceased was taken for postmortem examination there was a dispute between the uncle and father of the deceased as her uncle was keen to lodge the report against the accused persons whereas father was not interested in doing so as according to him they (accused persons) were very good people and no false report should be lodged against them. This witness has further stated that last rites of the deceased were performed by her brother-in-law (appellant No.3) because as per the custom prevailing in their society brother-in-law is treated as son for the purpose of last rites. Rajendra Prasad (PW-14) is the investigating officer who has duly supported the case of the prosecution. Vishwas Chandrakar (PW-15) is the witness who did part of the investigation. 9. Heard counsel for the parties and perused the material available on record. 10. Rajendra Prasad (PW-14) is the investigating officer who has duly supported the case of the prosecution. Vishwas Chandrakar (PW-15) is the witness who did part of the investigation. 9. Heard counsel for the parties and perused the material available on record. 10. Section 304-B IPC reads as under: Dowry death.-(1) Where the death of a woman is caused by any bums or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.-For the purpose of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961)." In order to convict an accused under Section 304-B IPC the following essentials must be satisfied: (i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have occurred within 7 years of her marriage. (iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (iv) such cruelty or harassment must be for or in connection with demand of dowry. It is only when the aforementioned ingredients are established by acceptable evidence such death shall be called "dowry death" and such husband or his relative shall be deemed to have caused her death. 11. If in the light of above definition and ingredients of Section 304-B IPC, evidence adduced by the prosecution is discussed, first two points have been duly established by the prosecution. So far as remaining two points are concerned, there is no reliable evidence that the cruelty or harassment meted out to the deceased was for or in connection with demand of dowry. In the statement recorded under Section 161 Cr.P.C none of the witnesses has deposed that there was any demand of dowry by the accused persons. Some of the witnesses have merely stated that there was demand of Rs. 5,00,000/- but they have not stated that it was in connection with dowry. In the statement recorded under Section 161 Cr.P.C none of the witnesses has deposed that there was any demand of dowry by the accused persons. Some of the witnesses have merely stated that there was demand of Rs. 5,00,000/- but they have not stated that it was in connection with dowry. However, while deposing in the Court though the witnesses namely Vandana Agrawal (PW-4), Mamta Agrawal (PW-5), Arti Agrawal (PW-6), Suresh Kumar (PW-7) and Vinod Kumar (PW-11) have improved their version and stated that deceased was subjected to cruelty for demand of Rs. 5,00,000/- or any dowry. This Court finds it difficult to believe such exaggerated and improved statement of the witnesses made in the Court because they had not stated any such thing in the case diary statement or at the time of inquest. Further more, the witnesses have admitted the fact that only after seeing the girl the accused/ appellants had agreed for the marriage which solemnized at Dongargarh. They have also admitted that at the time of marriage no dowry was settled or demanded by the accused persons. Most importantly, independent witness Prakash Agrawal (PW-13) who first reached the spot and made an attempt to extinguish the fire with the husband of the deceased has stated that deceased used to visit his house, accused persons used to keep her well and that he had not noticed any dispute between them. He has stated that deceased used to visit the society functions either along with her mother-in-law or husband and she never made a complaint to him about demand of dowry by the accused persons or resultant cruelty meted out to her. He has further stated that whenever the deceased visited his house, she used to make complaint that her husband was less educated than her and that his work was like driver and that he used to get back home late in the night for which she was not happy. He has categorically stated that deceased used to tell in his house that she was more educated but married to a less educated person and thereby could not utilise her higher education acquired by hard work. He has categorically stated that deceased used to tell in his house that she was more educated but married to a less educated person and thereby could not utilise her higher education acquired by hard work. He has further stated that when body of the deceased was taken for postmortem examination, there was a dispute between the father and uncle of the deceased where uncle was interested in lodging the report against the accused persons but her father was not interested in that as according to him accused/appellants being very good people should not be implicated in a false case. This independent witness has not been declared hostile by the prosecution and therefore his evidence is binding on the prosecution as the accused/appellants can definitely rely on his statement. There is nothing in law that precludes to rely on the prosecution evidence which supports the defence. As per the relatives of the deceased accused persons had taken all the ornaments worn by the deceased whereas as per P.R. Nirmal (PW-2) who had conducted inquest deceased was wearing gold mangalsutra, ring, gold nose pin and gold ear tops. Here also, statement of relatives of the deceased becomes doubtful. This witness has further admitted that at the time of inquest no complaint was made by the family members of the deceased regarding demand of dowry or demand of Rs. 5,00,000 leading to cruelty meted to her. From the evidence on record it is thus clear that the prosecution has not proved its case beyond reasonable doubt that there was any demand of dowry made by the accused persons and that the deceased was subjected to cruelty for that. Merely on the basis of improved statement of the witnesses made in the Court this Court finds it difficult to convict the accused/appellants. All the witnesses have categorically stated that no dowry was demanded or settled at the time of marriage. Except the bald statement of mother, uncle, sister and other relatives of the deceased there is no evidence to show that she was subjected to cruelty or harassment prior to her death for demand of dowry. It is settled legal position that while prosecution has to prove its case beyond reasonable doubt, the defence of the accused has to be tested on the touchstone of probability. It is settled legal position that while prosecution has to prove its case beyond reasonable doubt, the defence of the accused has to be tested on the touchstone of probability. Burden of proof lies on prosecution in all criminal trials though onus may shift to accused in given circumstances, and if so provided by law. Therefore, the evidence has to be appreciated to find out whether the defence set up by the appellant is probable and true. More importantly, Laxmi Narayan Agrawal, the mediator through him the marriage of the deceased with accused/appellant No. 2 was fixed as well as the father of the deceased have not been examined by the prosecution. Highly exaggerated and improved Statements made by the relatives of the deceased appear to be untrustworthy and do not inspire confidence of this Court. Arti Agrawal (PW-6) sister of the deceased who lived in the house of the accused/appellants for 15-20 days has also not stated anything regarding demand of dowry and resultant harassment meted out to the deceased at the hands of the accused/appellants during the said period. Furthermore, all the important witnesses have admitted the fact that at the time of marriage of the deceased no dowry was settled or demanded by the accused/appellants. 12. In the case in hand, prosecution case itself is doubtful not only in view of the improved statement of the relatives but also in view of the statement of independent witness Prakash Agrawal (PW-13). Thus in the light of aforesaid factual and legal discussion and several judgments of the Supreme Court cited by the counsel for the appellants this Court is of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and that being so the appellants are entitled for benefit of doubt. 13. Accordingly, the appeal is allowed. Judgment impugned is hereby set aside. Accused/ appellants are acquitted of the charge levelled against them. Accused/appellants Siddh Gopal Naredi, Vikky alias Aasish and Smt. Rajkumari Naredi are already on bail and their bail bonds stand discharged. Accused/appellant Sonu alias Aatish is however in jail. He be set free forthwith if not required in any other case. Appeal Allowed.