Research › Search › Judgment

Chhattisgarh High Court · body

2013 DIGILAW 210 (CHH)

GIRIJA DEVI v. STATE OF C. G.

2013-07-10

Radhe Shyam Sharma

body2013
JUDGMENT 1. This appeal is directed against the judgment dated 22-11-2012 passed by Additional Sessions Judge, Ramanujganj in Sessions Trial No. 149/2010. By the impugned judgment, appellants/ accused persons Girija Devi and Ramesh Yadav @ Bhunu have been convicted under Sections 498A and 304B/34 IPC and sentenced for the offence under Section 304B/34 IPC with rigorous imprisonment for 7 years. No separate sentence has been awarded for the offence under Section 498A IPC. 2. The case of the prosecution, in brief, are as under:- Janardan Yadav (PW-1) is father, Smt. Dukhani Devi (PW-3) is mother and Amerika Yadav (PW-10) is grand-father of the deceased Sunita Yadav. Appellant No.1 Girija Yadav is mother-in-law, appellant No.2 Ramesh Yadav @ Bhunu is husband of the deceased (Sunita Yadav). Marriage between the deceased Sunita Yadav and appellant no. 2 Ramesh Yadav @ Bhunu was solemnized in the month of March, 2008. At the time of marriage Janardan Yadav (PW-1, father of the deceased) gave sufficient dowry. After marriage deceased Sunita Yadav was residing alongwith the appellants in her matrimonial house. After the marriage, appellants maintained the deceased well for six months but thereafter the appellants began harassing the deceased and demanding a sum of Rs. 20,000/- and motorcycle. The deceased informed about this harassment to her parents. Janardan Yadav (PW-1) expressed his inability to give the above amount and motorcycle as dowry. He inculcated the deceased and sent the deceased again to her matrimonial house where the appellants again began to harass the deceased. On 26-02-2010, the appellants assaulted the deceased, thereafter, on being assaulted by the appellants, the deceased committed suicide by jumping into well in her matrimonial house. The body of the deceased was taken out from the well and Bhuneshwar Yadav (PW-5, father of appellant No.2 and husband of appellant No.1) gave intimation to Police Station Ramanujganj, where merge (Ex.P-9) was recorded and thereafter, First Information Report (FIR)(Ex.P-12) was recorded in the same Police Station. Investigating Officer reached the place of occurrence alongwith Tahsildar/Executive Magistrate Ramseela (PW-12). The Tahsildar/Executive Magistrate gave notice (Ex.P-1) to Panch as and prepared inquest (Ex.P-2) on the dead body of the deceased. The dead body of the deceased was sent to CHC, Ramanujganj, for postmortem examination vide Ex.P-4. Dr. Investigating Officer reached the place of occurrence alongwith Tahsildar/Executive Magistrate Ramseela (PW-12). The Tahsildar/Executive Magistrate gave notice (Ex.P-1) to Panch as and prepared inquest (Ex.P-2) on the dead body of the deceased. The dead body of the deceased was sent to CHC, Ramanujganj, for postmortem examination vide Ex.P-4. Dr. Ajay Kumar Tirkey (PW-15) conducted postmortem examination and gave his report vide Ex.P6, in which he mentioned that the cause of death was asphyxia due to drowning and duration of the death was within 22-26 hours. After completion of the investigating, charge sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Ramanujganj, who, in turn, committed the case to the Court of Session, Surguja (Ambikapur), from where it was received on transfer by the Additional Sessions Judge, Ramanujganj, who conducted the trial and convicted and sentenced the appellants as mentioned above. 3. In support of its case, the prosecution examined Janardan Yadav (PW1 father of the deceased), Dinesh Yadav (PW-2), Smt. Dukhni Devi (PW-3 mother of the deceased), Suresh (PW-4), Bhuneshwar Yadav (PW-5, husband of appellant no. 1 and father of appellant no. 2), Shankar Yadav (PW-6), Rajesh Yadav (PW-7), Lallu Yadav (PW-8), Santosh Ram (PW-9), Amerika Yadav (PW-10 grandfather of deceased), Ramjan Ali PW-11), Tahsildar/Executive Magistrate Ramseela (PW-12), Assistant Sub Inspector Maheshwar Singh (Pw13), Kuldeep Yadav (PW-14), Dr. Ajay Kumar Tirkey (PW-15), Patwari Rambharosh Singh (PW-16), A.S.P. D. R. Achala (PW-17) and S.H.O. Amros Kujur (Pw-18). The appellants examined Rajesh Kumar Singh (DW-1) as defence witness. 4. Shri V.K. Pandey, learned Counsel for the appellants argued that the prosecution has utterly failed to prove the case against the appellants. He further argued that there was no demand of dowry by the appellants. From the evidence of Janardan Yadav (PW-1) and Amerika Yadav (PW-10), it is clear that the appellants did not demand dowry after the marriage for six months. The evidence of Amerika Yadav (PW-10), Dukhni Devi (PW-3), Dinesh Yadav (PW-2) and Janardan Yadav (PW-1) are hearsay evidence and are not admissible in evidence. He further submitted that the prosecution has failed to prove that the deceased was subjected to cruelty or harassment by the appellants in connection with the demand of dowry. It was not shown that any harassment or cruelty was subjected to the deceased. The appellants can not be convicted on the basis of suspicion or imagination. He further submitted that the prosecution has failed to prove that the deceased was subjected to cruelty or harassment by the appellants in connection with the demand of dowry. It was not shown that any harassment or cruelty was subjected to the deceased. The appellants can not be convicted on the basis of suspicion or imagination. The prosecution has utterly failed to establish the ingredients of Sections 304B and 498A IPC against the appellants. 5. Shri A.K. Singh, learned Panel Lawyer appearing for the State/ respondent, supporting the impugnedjudgri1ent, submitted that there was clear evidence led by the prosecution through the evidence of Janardan Yadav (PW-1), Dinesh Yadav (PW-2), Dukhni Devi (PW-3), Ramjan Ali (PW-11) and Amerika Yadav (PW-10) that there was demand of dowry of a sum of Rs. 20,000/- and motorcycle by the appellants after the marriage. He further submitted that there is sufficient evidence available on record that appellants harassed the deceased on account of which the deceased had no other option but to commit suicide. The conviction and sentence awarded to the appellants do not warrant any interference by this Court. 6. I have heard rival contentions of the parties and have also perused the record of Sessions Trial No. 149/2010. The conviction of the appellants under Section 304B and 498A IPC is based on the evidence of Janardan Yadav (PW-1), Dukhni Devi (PW-3), Dinesh Yadav (PW-2) and Amerika Yadav (PW10). 7. It is not disputed that the deceased died due to drowning. It is also not disputed that the marriage of the deceased was solemnized with appellant no. 2 in the month of March 2008 and it is also not disputed that the deceased died on 26-02-2010 and she died within 2 years of her marriage and her death was otherwise than in normal circumstances. 8. Janardan Yadav (PW-1), Dinesh Yadav (PW-2), Dukhni Devi (PW3) and Amerika Yadav (PW-10) deposed that Sunita Yadav (deceased) was daughter of Janardan Yadav (PW-1) and Dukhni Devi (PW-3). They further deposed that the marriage of the deceased was solemnized with appellant No. 2 in March 2008. They further deposed that after the marriage the deceased was residing in her matrimonial house and she was maintained there well for six months. After six months of the marriage, the appellants started demanding a sum of Rs. They further deposed that the marriage of the deceased was solemnized with appellant No. 2 in March 2008. They further deposed that after the marriage the deceased was residing in her matrimonial house and she was maintained there well for six months. After six months of the marriage, the appellants started demanding a sum of Rs. 20,000/- and motorcycle as dowry and they started harassing and maltreating the deceased with regard to demand of dowry. Kuldeep Yadav (PW-14) also deposed in similar fashion. 9. Janardan Yadav (PW-1), Dukhni Devi (PW-3) and Amerika Yadav (PW-10) deposed that the deceased came to her paternal house and told them that unless they will pay a sum of Rs. 20,000/- and a motorcycle she would not remain alive and it would be the end of her life. Janardan Yadav (PW1) deposed that he went to the house of the appellants and told them that he is not in a position to give the sum of Rs. 20,000/- and motorcycle as dowry. He further deposed that on expressing his inability, appellant No. 1 Girija Devi, appellant No.2 Ramesh Yadav @ Bhunu and Bhuneshwar Yadav (PW-5) ousted the deceased from their house. 10. Janardan Yadav (PW-1), Dinesh Yadav (PW-2), Dukhni Devi (PW3), Amerika Yadav (PW-10) and Ramjan Ali (PW-11) deposed that the appellant no. 2 left the deceased in her parental house and appellant No.2 Ramesh told Janardan Yadav (PW-1) that until he would not give him sum of Rs.20,000/- for construction of the house, he would not keep the deceased with him. They further deposed that after one month Janardan Yadav (PW-1) received telephonic message that the deceased had died. 11. Janardan Yadav (PW-1), Dinesh Yadav (PW-2) and Ramjan Ali (PW11) deposed that they went to the house of the appellants and at that time the dead body of the deceased was taken out from the well and the dead body had sustained injuries on her back and blood had oozed out from nose and ear. 12. 11. Janardan Yadav (PW-1), Dinesh Yadav (PW-2) and Ramjan Ali (PW11) deposed that they went to the house of the appellants and at that time the dead body of the deceased was taken out from the well and the dead body had sustained injuries on her back and blood had oozed out from nose and ear. 12. Section 304B IPC runs as under: "304- B. Dowry death.-(1) Where the death of a woman is caused by any burns 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 with, 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 sub-section, " dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." 13. Section 498A IPC runs as under: "498-A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.- For the purpose of this section, "cruelty" means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." 14. In Kashmir Kaur and another Vs. State of Punja, 2013 AIR SCW 200, the Hon'ble Supreme Court observed thus: "11. In K. Prema S. Rao (supra) it has been held as under in paragraph 16:-"......... In Kashmir Kaur and another Vs. State of Punja, 2013 AIR SCW 200, the Hon'ble Supreme Court observed thus: "11. In K. Prema S. Rao (supra) it has been held as under in paragraph 16:-"......... To attract the provisions of Section 304B, IPC, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment "in connection with the demand for dowry".".......... 16. From the above decisions the following principles can be culled out: (a) To attract the provisions of Section 304B, IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry. (b) The death of the deceased woman was caused by any bum or, bodily injury or some other circumstance which was not normal. (c) Such death occurs within seven years from the date of her marriage. (d) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband. (e) Such cruelty or harassment should be for or in connection with demand of dowry. (f) It should be established that such cruelty and harassment was made soon before her death. (g) The expression (soon before) is a relative term and it would depend upon circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence. (h) 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. (i) Therefore, 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 or life link between the effect of cruelty based on dowry demand and the concerned death. In other words, it should not be remote in point of time and thereby make it a stale one. (j) However, the expression "soon before" should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results. In other words, it should not be remote in point of time and thereby make it a stale one. (j) However, the expression "soon before" should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results. (k) Section 304B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian Law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B. (l) Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304B were not satisfied. The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to, the time of her death-and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence." 15. In Bakshish Ram and another Vs. State of Punja, 2013 Cri.L.J. 2052, the Hon'ble Supreme Court observed thus:- "12. We have already noted Section 304B, I.P.C. and its essential ingredients. Section 113B of the Evidence Act is also relevant for the case in hand. Both Sections 304B and 113B of the Evidence Act were inserted by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B of the Evidence Act reads as under: "113B. Section 113B of the Evidence Act is also relevant for the case in hand. Both Sections 304B and 113B of the Evidence Act were inserted by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B of the Evidence Act reads as under: "113B. Presumption as to dowry death-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death." Explanation.-For the purpose of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)". As per the definition of "dowry death" in Section 304B, IPC and the wording in the presumptive Section 113B 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 for dowry". While considering these provisions, this Court in M.Srinivasulu v. State of A.P. (2007) 12 SCC 443 : ( AIR 2007 SC 3146 : 2007 AIR SCW 5697) has observed thus : "......... 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 a woman. (This means that the presumption can be raised only if the accused is being tried for the offence 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." 16. In the instant case, the dead body of the deceased was found lying dead near the well. Doctor Ajaj Kumar Tirkey (PW-15) deposed that he conducted the postmortem examination on the dead body of the deceased and gave his report vide Ex.-P/6, in which he mentioned that the cause of death was asphyxia due to drowning. 17. In the instant case, the dead body of the deceased was found lying dead near the well. Doctor Ajaj Kumar Tirkey (PW-15) deposed that he conducted the postmortem examination on the dead body of the deceased and gave his report vide Ex.-P/6, in which he mentioned that the cause of death was asphyxia due to drowning. 17. When the appellants were examined under section 313 Cr.P.C. and asked about their defence, they simply replied that they have been falsely implicated. The appellants have not thrown any light as to how the deceased died and in what circumstances the incident took place. 18. Looking to the evidence of prosecution witnesses Janardan Yadav (PW-1 father of the deceased), Dinesh Yadav (PW-2), Smt. Dukhni Devi (PW 3 mother of the deceased), Amerika Yadav (PW -10 grand-father of deceased), Ramjan Ali (PW-11) and Kuldeep Yadav (PW-14), just one month prior to the death of deceased the appellants left the deceased in her parental house and demanded a sum of Rs. 20,000/- and appellants pressurized for sum of Rs. 70,000/- and motorcycle and the deceased specifically told that unless a sum of Rs. 20,000/- and motorcycle would not be given she would not remain alive and it would be the end of her life and the deceased died due to asphyxia as a result of drowning within two years of her marriage with appellant Ramesh Yadav @ Bhunu. It is also established that soon before her death, the deceased was subjected to cruelty and harassment by the appellants in connection with demand of dowry i.e. a sum of Rs. 20,000/- and motorcycle. If all the facts and circumstance of the case are put together they clearly attract the provisions under section 113B of the Evidence Act and burden lies upon the appellants to prove their defence. 19. Looking to the facts and circumstances of the case and the evidence available on record, offence under Sections 304B/34 and 498A IPC are proved against the appellants and the learned trial Court has rightly convicted the appellants under Sections 304B/34 and 498A IPC, therefore, the judgment of conviction and sentence recorded by the learned Additional Sessions Judge does not call for any interference. 20. Therefore, the appeal being devoid of any merit, deserves to be and is hereby dismissed. Appeal Dismissed.