Mahesh v. State Of Chhattisgarh

Judgment

#1. This criminal appeal has been preferred by appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity ‘Cr.P.C.’) challenging the judgment of conviction and order of sentence dated 29- 3-2005 passed by learned 1st Upper Sessions Judge, Baloda Bajar (CG) in Sessions Case No. 171/2004, whereby the appellant / accused has been convicted for the offence punishable under Sections 498-A, 304 B and Section 323 of the India Penal Code (in brevity ‘IPC’) and sentenced as under :- 2 Offence Jail sentence Fine Sentence Default stipulation u/S. 498A, IPC 2 years RI Rs. 1,000/- Additional 6 months RI 304B, IPC 10 years RI 323, IPC 6 months RI All the substantive jail sentence have been directed to run concurrently.

#2. Facts of the case, in nutshell, are that, marriage of deceased Dhaneshwari Bai was solemnized with the appellant/accused Mahesh 4 years prior to the incident. After marriage, they were residing along with the maternal uncles Laxman and Jainarayan, who are also co-

accused in instant case but they have been acquitted by the trial Court. It is alleged that, appellant and co-accused persons used to harass deceased Dhaneshwari Bai for demand of dowry, therefore, she committed suicide on 11-3-2004 by hanging herself in her house situated at village Bemta. Merg report was lodged. Inquest report Ex. P-3 was prepared. Post mortem of the dead body of the deceased was conducted by Dr. Salil Rai Chaudhari (P.W. 14). Written complaint Ex. P-7 was made by Purushottam (P.W. 6), father of the deceased in PS Simga, based on which, present FIR Ex. P-12 was lodged against the appellant/accused and his two maternal uncles namely Laxman and Jai Narayan. Statements of witnesses were recorded under Section 161 of the Cr.P.C. Pieces of broken bangles of the deceased were seized from the place of occurrence vide seizure memo Ex. P-4 and the rope by which she hanged herself was seized vide Ex. P-9. Appellant and co-accused persons were arrested. After due 3 investigation, charge-sheet under Sections 304B/34, 498A, 323 and 325 of the IPC was filed by the police before the Judicial Magistrate First Class, Baloda Bajar against the appellant and two co-accused persons.

#3. Charges under Sections 325, 498A and 304-B of the IPC were framed and explained to the appellant and other accused persons, who abjured their guilt and claimed trial.

#4. In order to prove the guilt of accused persons, the prosecution examined following 14 witnesses and exhibited following 16 documents:- WITNESSES PW 1 Ramsohani PW 2 Ghanaram P.W. 8 P.W. 9 Rambai K.S. Bhatiya PW 3 Vishram Singh Sahu P.W. 10 Deendayal Chelak PW 4 Gendram P.W. 11 Ramkumar Vaishnav PW 5 Dujram Sahu P.W. 12 Dr. Seetaram P.W. 6 Purushottam Nishad P.W. 13 Banshilal Kurre P.W. 7 Bartnin Bai P.W. 14 Dr. Salil Rai Chaudhari EXHIBITS

#1. Ex. P-1 Statement of Vishram 9 Ex. P-9 Seizure memo of Singh

#2. Ex. P-2 Notice under Section

#10. Ex. P-10 Akasmik Mritya 175, Cr.P.C. Suchna Panji

#3. Ex. P-3 Inquest

#11. Ex. P-11 Duty certificate

#4. Ex. P-4 Seizure memo of

#12. Ex. P-12 FIR bangles

#5. Ex. P-5 Milanpatra

#13. Ex. P-13 Memo

#6. Ex. P-6 Shav Supurdnama

#14. Ex. P- Post mortem report mortem 4 13A

#7. Ex. P-7 Complaint

#15. Ex. P-14 Arrest memo of to 16 accused persons

#8. Ex. P-8 Statement of Rambai and Prembai Statements of the accused persons under Section 313 of the Cr.P.C. were recorded in which, they denied all the circumstances appearing against them in evidence of prosecution witnesses, pleaded innocence and their false implication. Appellant also examined Atmaram Sahu (D.W. 1) and co-accused Jainarayan and Laxman examined Vishnu Sahu (D.W. 2) and Dauram Sahu (D.W. 3) in their defence.

#5. Learned trial Court after appreciating the evidence adduced by the prosecution, acquitted co-accused Laxman and Jainarayan of all the charges, but convicted appellant/accused and sentenced him in the manner stated in opening paragraph of this judgment. Being aggrieved, the appellant has filed this appeal.

#6. Learned counsel for the appellant/accused would submit that, family members of both sides are belonging to poor financial strata and they are of labour category. In 4 years of matrimonial life, the deceased delivered two children, out of which, one is alive but one is no more. He further submits that, deceased had conceived third time and at the time of incident, she was carrying pregnancy of 5 months, which was painful for her. There was also normal family quarrel happened between the deceased and her mother-in-law, but she was very upset because of stomach pain due to her pregnancy. Therefore, she 5 committed suicide by hanging herself. He further submits that, only omnibus statements have been made against the appellant by mother and father of the victim that, the deceased was harassed by the appellant for demand of dowry, but what dowry was sought by the appellant has not been specified by them. On the other hand, Bartanin Bai (P.W. 7), mother of the victim herself has admitted that there is no custom of giving dowry in their society and appellant had also not made any demand of dowry at the time of marriage. Other witnesses examined by the prosecution pertaining to the facts of the case, have also not supported the prosecution’s case. Atmaram (D.W. 1) is the person for whom, the appellant works and other defence witnesses are neighbours of accused persons but they have also stated that, appellant has not harassed the victim for demand of dowry or any other count. Despite that, learned Upper Sessions Judge has convicted and sentenced the appellant without any lawful evidence, therefore, he prays that the appeal be allowed and the appellant be acquitted of all the charges by setting aside the impugned judgment.

#7. On the other hand, learned Panel Lawyer appearing for the respondent/State submits that, the mother of the victim (P.W. 7) has stated that the appellant used to harass the victim for demand of ornament, therefore, one day prior to the incident, father of the victim had given her Silver Lachchha (ornament wear on ankle). She further submits that, if deceased would not have been harassed by the appellant/accused, then there was no reason for her committing suicide being mother of one child. It is further submitted that, the impugned judgment is based on well appreciation of evidence adduced 6 by the prosecution, hence, the appeal is liable to be dismissed.

#8. I have heard learned counsel for the parties and perused the material available on record of the case including record of the trial Court.

#9. In the instant case, Purushattam Nishad (P.W. 6) is father of the deceased. He has stated in his deposition that, after marriage of the deceased, accused/ appellant, who is her husband, used to commit Marpeet with her for dowry and his both maternal uncles also harassed her. She used to come to his house due to marpeet committed to her on account of demand of dowry. He has further stated that, this year, after 4 days of Falgun festival, he went to matrimonial house of the deceased for giving her a Silver Lachchha (ornament) and after giving the same, when he returned, he came to know that appellant and both the co-accused persons have killed and hanged the deceased. In para 4, he has stated that, appellant and co-accused persons used to torture her for demand of dowry and commit marpeet with her. In cross- examination, he has stated that at the time of marriage also, he demanded dowry. He has admitted that at that time and even before lodging report, he did not tell his community members that appellant was demanding dowry. He has further stated that neighbours of matrimonial house of victim knew that her in-laws harassed her.

#10. Baratnin Bai (P.W. 7) is mother of the deceased. She has deposed that her daughter has been hanged after killing. Accused persons always used to commit marpeet with deceased after marriage for demand of dowry. They demanded Lachchha, chain, ear wring, Chudi (Dhakaua) ornaments. Eight days prior to death, the deceased had returned to her matrimonial house from her parental house and thereafter her 7 father went to her matrimonial house to give her Lachchha, and when he returned, same day, the deceased died. In cross-examination para 4, she has admitted that, there is no custom of dowry in their Nishad community. At the time of marriage, the appellant had not said anything about dowry as he knew that they are poor. After birth of child, they demanded dowry. Her daughter also told her about stomach ache. She has also admitted that, the deceased did not come to her parental house until 3 – 4 years after marriage and lived well in matrimonial house and she never told them about demand of dowry. She has further stated that they did not lodge any report about demand of dowry. In para 6 and 7, she has admitted that she did not tell anything about demand of dowry to her relatives.

#11. Ramsohani (P.W.1), Ghanaram (P.W. 2), Vishram Singh Sahu (P.W. 3) Gendram (P.W.4) and Ram Bai (P.W. 8) are villages/neighbours of the deceased. They have not said anything in their deposition about cruelty or demand of dowry made by the appellant with the deceased.

#12. Dujram Sahu (P.W. 5) is Panch of the village and is witness of notice under Section 175 of the Cr.P.C. (Ex. P-2), inquest (Ex. P-3) and seizure memo of bangles (Ex. P-5). In cross-examination para 7, he has stated that, the brother of the deceased had told him that she was of very angry nature. Her family members have not told him about any harassment of the deceased.

#13. Dr. Sitaram (P.W. 12) is resident of village Mohdi. He has deposed that on receiving information about the incident, he went to village Bemta and when he reached to the place of incident, he saw that, Myar of the house was not too high, legs of the deceased were touching the 8 ground and were in bend condition. He further deposed that Purushottam Nishad (P.W. 6) told him that the Lachchha wore by the deceased was given by him as her in-laws were harassing her. After funeral, they lodged report Ex. P-7. Purushottam had told him that in- laws of the deceased have hanged her for demand of dowry.

#14. Deen Dayal Chelak (P.W. 10) is constable, who took the rope from hospital to police station. Ram Kumar Vaishnav (P.W. 11) is the Assistant Sub Inspector, who recorded merg Ex. P-10, seized the rope vide Ex. P-9 used for hanging and registered FIR Ex. P-12. Banshilal Kurre (P.W. 13) was S.D.O.P., Bhatapara, at the time of incident who investigated the matter. K.S.Bhatiya (P.W. 9) is the S.D.O.P. Bhatapara, who also investigated the matter in part.

#15. Dr. Salil Rai Chaudhari (P.W. 14) along with one Dr. A.P. Nayak conducted post mortem of the body of deceased and opined that cause of death of the deceased is asphyxia due to hanging and it was suicidal in nature. In view of above discussion, it is found that, learned Upper Sessions Judge has not committed any mistake in holding that the deceased died in un-natural circumstances within 4 years of her marriage, therefore, the finding recorded on this count by learned Upper Sessions Judge is affirmed.

#16. To attract the provisions of Section 304-B, 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 or harassment" for, or in connection with the demand for dowry".

#17. In the case of Devi Lal v. State of Rajasthan [(2007) 14 SCC 176], the ingredients of the provisions of Section 304-B as laid down in Harjit 9 Singh v. State of Punjab (2006) 1 SCC 463 and Ram Badan Sharma v. State of Bihar (2006) 10 SCC 115 have been reiterated as under:- “20. The question, as to what are the ingredients of the provisions of Section 304-B of the Penal Code is no longer res integra. They are: (I) that the death of 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 death.”

#18. Hon’ble Supreme Court in the matter of Rajesh Chaddha Vs. State of UP [2025 SCC OnLine 1094), which pertains to offence under Sections 498A, 323, 506 IPC & Sections 3 & 4 of the D.P. Act, 1961, has observed that, in the present case, the allegations made by the complainant were vague, omnibus, and lacking in material particulars necessary to meet the required threshold. Apart from asserting that the convict-husband had harassed her for dowry, the complainant had not provided any specific details or described any particular instance of such harassment. The allegations in the FIR and the depositions of the prosecution witnesses indicated that, on multiple occasions, the complainant was allegedly ousted from the matrimonial home and was kicked and punched in the presence of her father. She was also reportedly subjected to repeated torment over dowry demands, and, when unable to meet them, was allegedly physically assaulted by the convict and his family. However, the complainant failed to mention the 10 specific time, date, place, or manner in which the alleged acts of harassment occurred. In these facts, the Hon’ble Supreme Court clarified that in order to meet the threshold for the offences under Section 498A IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961, the allegations could not be vague, ambiguous, or baseless. It was further emphasized that the term “cruelty” under Section 498A IPC is frequently subject to misuse and cannot be established merely by general allegations without specific instances.

#19. Now, the question in the instant case, is whether one of the ingredients of the offence is established that soon before the death, the deceased was subjected to cruelty or harassment by accused persons in connection with demand of dowry and whether prosecution has proved specific incident of cruelty and harassment of the victim on account of demand of dowry against appellant.

#20. From perusal of evidence of Purushottam Nishad (P.W. 6) and Baratnin Bai (P.W. 7), who are father and mother of the deceased, it is found that they have made omnibus allegations against the appellant. Purushattam Nishad (P.W. 6) has deposed that the appellant used to commit marpeet for demand of dowry and he had given Silver Lachchha to her, but in cross-examination, he has stated that at the time of marriage, he had not given any dowry. He has also deposed that he did not tell to the members of his community that appellant demanded dowry or any torture or cruelty was committed by him. Bartarin Bai (P.W. 7), mother of the deceased has admitted in her cross-examination that, there is no practice of dowry in their community. The appellant had not demanded any dowry at the time of 11 marriage. She has deposed in para 5 that she had called village meeting pertaining to the dispute between deceased and the appellant in her village, but she has shown her ignorance that who came from the village of appellant. Further, no witness has been examined who was present in that meeting. It is also worthy to note that, the Silver Lachchha, which is alleged to be given by father of the deceased to her, has not been seized from her body, by the police.

#21. Rambai (P.W. 8), in whose field, deceased Dhaneshwari worked, has deposed that upto 2 days prior to her death, the deceased came to her field and 3rd day, the deceased told her that there was quarrel in her house, therefore, she would not go to work. She has been declared hostile. She has denied the suggestion of public prosecutor that deceased had told her that appellant used to harass her for demand of dowry.

#22. Ramsohani (P.W.1), Ghanaram (P.W. 2), Vishram Singh Sahu (P.W. 3) Gendram (P.W.4) and Ram Bai (P.W. 8) who are neighbours of the deceased have not deposed anything about demand of dowry or cruelty/harassment committed by the appellant to the deceased. Dr. Sitaram (P.W. 12) though has deposed that, Purushottam Nishad had told him about demand of dowry and harassment of the deceased by the appellant, but he has not stated any specific incident in this regard or the cruelty was committed soon before the incident.

#23. The evidence adduced by the prosecution shows that only omnibus statements have been given by Purushottam Nishad (P.W. 6) and Baratnin Bai (P.W. 7) regarding demand of dowry and harassment, but no specific allegation or specific incident has been narrated by them, 12 as to what demand they made from parents of the deceased or whether they made any complaint earlier regarding the demand of dowry or harassment. Such generalized accusations unsupported by concrete evidence or particularized allegations cannot form the basis of conviction. The prosecution has also not proved that the appellant has voluntarily caused hurt to the victim. It has also not been proved that soon before the death, victim was subjected to cruelty as has been held by Hon’ble Supreme Court in above referred case laws. Learned trial Court, only on the basis of omnibus statements of parents of deceased, has convicted and sentenced the appellant, which is not found to be sustainable.

#24. In the result, instant appeal is allowed. The impugned judgment of conviction and order of sentence dated 29-3-2005 passed by learned 1st Upper Sessions Judge, Baloda-Bajar in Sessions trial No. 171/2004 is set aside. The appellant/accused is acquitted of the offence punishable under Sections 498A, 304B and Section 323 of the IPC. The appellant/accused is reported to be on bail. The bail bonds furnished by him shall remain in operation for a further period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023.

#25. Record of the trial Court along with a copy of this judgment be sent back forthwith for compliance and necessary action. Sd/- (Naresh Kumar Chandravanshi) JUDGE pathak