State of Chhattisgarh v. Ashish Vaishnav and
Case Details
Page No.1 of 31 IN CRA-416-2019 & CRA-708-2019 2025:CGHC:8056 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Judgment Reserved on : 28.01.2025 Judgment Pronounced on : 14.02.2025 [Arising out of a common impugned judgment dated 26.02.2019, passed in Sessions Case No.20 of 2014 (State of Chhattisgarh v. Ashish Vaishnav and 03 others), by the Additional Sessions Judge, District Mungeli (C.G.)] Criminal Appeal No. 416 of 20 19 1. 2. 3. Krishna Kumar, Son of Ram Manohar Vaishnav, aged about 56 years, Resident of Baloda, Police Station Gidhauri, Civil and Revenue District Baloda Bazar (Chhattisgarh) Ratnavali, Wife of Krishna Kumar Vaishnav, aged about 50 years, Resident of Baloda, Police Station Gidhauri, Civil and Revenue District Baloda Bazar (Chhattigarh) [wrongly mentioned as Resident of Gidhauri, Police Station Gidhauri, District Baloda Bazar (CG) in the impugned judgment] Rani Vaishnav, Wife of Gaukaran Vaishnav, aged about 27 years, Resident of Village Birra, Police Station Birra, Civil and Revenue District Janjgir-Champa (Chhattisgarh) [wrongly mentioned as Presently Resident of Ayodhya Nagar, Police Station Civil Line, Civil and Revenue District Bilaspur (CG) in the impugned judgment] Versus State of Chhattisgarh, through the Station House Officer, Police Station Jarhagaon, Civil and Revenue District Mungeli (Chhattisgarh) ---- Appellants (On Bail) ---- Respondent ----------------------------------------------------------------------------------- For Appellants For Respondent : Mr. Pragalbha Sharma, Advocate : Mr. Ashish Shukla, Addl. Adv. General & Mr. HAPS Bhatia, Panel Lawyer ----------------------------------------------------------------------------------- Page No.2 of 31 IN CRA-416-2019 & CRA-708-2019 AND Criminal Appeal No. 708 of 20 19 Ashish Vaishnav, Son of Krishna Kumar Vaishnav, aged about 30 years, Resident of Ayodhya Nagar, Police Station Civil Line, Civil and Revenue District Bilaspur (Chhattisgarh) Versus State of Chhattisgarh, through Police Station Jarhagaon, Civil and Revenue District Mungeli (Chhattisgarh) ---- Appellant (In Jail) ---- Respondent ----------------------------------------------------------------------------------- For Appellant For Respondent : Mr. Manoj Paranjpe, Advocate : Mr. Ashish Shukla, Addl. Adv. General & Mr. HAPS Bhatia, Panel Lawyer ----------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Deepak Kumar Tiwari Hon'ble Shri Justice Sanjay K. Agrawal, J CAV Judgment (1) Regard being had to the similitude of the questions of fact and law involved and being arising out of a common impugned judgment dated 26.02.2019, on the joint request of learned counsel for the parties, both these criminal appeals are clubbed together, heard together and are decided by this common judgment. (2) In these criminal appeals filed under Section 374(2) of Cr.P.C., total four accused-appellants, namely, Ashish Vaishnav (A-1), Krishna Kumar (A-2), Ratnavali (A-3) and Rani Vaishnav (A-4) are calling in question the legality, validity and correctness of a common impugned judgment of conviction and order of sentence dated 26.02.2019, passed in Sessions Case No.20 of 2014 (State of Page No.3 of 31 IN CRA-416-2019 & CRA-708-2019 Chhattisgarh v. Ashish Vaishnav and 03 others), by the Additional Sessions Judge, District Mungeli (CG), whereby they all have been convicted and sentenced as under: As regards Appellants- Krishna Kumar (A-2), Ratnavali (A-3) and Rani Vaishnav (A-4): Conviction U/s. 498-A of IPC Sentence Rigorous imprisonment for 03 years with fine of Rs.500/- each and, in default of payment of fine, additional rigorous imprisonment for 03 months each. As regards Appellant- Ashish Vaishnav (A-1): Conviction Sentence U/s. 304-B of IPC Imprisonment for life. U/s. 302 of IPC U/s. 498-A of IPC Imprisonment for life with fine of Rs.1,000/- and, in default of payment of rigorous additional imprisonment for 03 months. fine, Rigorous imprisonment for 03 years with fine of Rs.500/- and, in default of payment of fine, additional rigorous imprisonment for 03 months. (3) The case of the prosecution, in a nutshell, is that from May, 2013 till 20.02.2014, the accused/appellants, namely, Ashish Vaishnav (A-1), Krishna Kumar (A-2), Ratnavali (A-3) and Rani Vaishnav (A-4) being husband, father-in-law, mother-in-law and
Legal Reasoning
sister-in-law of Smt. Ranu Vaishnav respectively, in connivance with each other, subjected Smt. Ranu Vaishnav (hereinafter referred Page No.4 of 31 IN CRA-416-2019 & CRA-708-2019 to as the “deceased”) with cruelty for or in connection with demand of dowry, due to which, she suffered harassment mentally and physically and, further, on account of such curelty/harrassment, the deceased, on 20.02.2014, committed suicide by consuming poison while working as Pharmacist at Primary Health Centre, Samarsal and died under abnormal circumstances within seven years from her marriage and, thereby, said to have committed the aforesaid offences. (4) It is further case of the prosecution that the marriage of the deceased with appellant- Ashish (A-1) was solemnized in the year 2013 and, immediately after the marriage, the deceased was subjected to cruelty and harassment by the accused/appellants herein, on account of which, she died on 20.02.2014 by consuming poisonous substance. After the death of the deceased, initially, when the matter was reported to the police, FIR (Ex.P/22) was registered against appellant- Ashish (A-1) for offence under Section 304-B of IPC and wheels of investigation started running, in which, spot map was prepared vide Ex.P/08. Summon under Section 175 of CrPC were sent vide Ex.P/01 and inquest proceedings were also conducted vide Ex.P/02. After inquest, it was revealed that the deceased was subjected to cruelty and harassment by all the accused-appellants herein for or in connection with demand of dowry, due to which, she committed suicide and, pursuant to which, additional offences under Section 302 & 498-A of IPC were Page No.5 of 31 IN CRA-416-2019 & CRA-708-2019 registered against the accused/appellants respectively. Thereafter, at the instance of father of the deceased, namely, Ram Krishna (PW- 07), Dehati Nalsi (Ex.P/03) was recorded. Merg. Intimation was also registered vide Ex.P/34. The dead-body of the deceased was sent for postmortem examination and, in the postmortem report (Ex.P/20), conducted by Dr. Neha Lal (PW-24), it was opined that cause of death of the deceased is due to poisoning. Thereafter, the accused- appellants were arrested vide Ex.P/24 to Ex.P/27 respectively. The seized articles were sent for chemical analysis and, as per FSL report (though not exhibited but annexed at Page-184-187 of the paper-book), it has been opined that Chloroquine (medicine) was found in Article-A, C, D, E, F & G. One suicide note (marked as Q1 to Q4 at Pages No.243-249 of the paper-book) wrote by the deceased was also seized and, in it is clearly stated in the said suicide note that “no one is responsible for deceased’s act of suicide and if anything happens no one should be held responsible for her death”. Further, certain other documents (i.e. dairy, leave application, register entry), which were written by the deceased during her lifetime was also seized and marked as N1 to N11. The aforesaid suicide note (marked as Q1 to Q4) alongwith documents (marked as N1 to N11) all were sent to the State Examiner of Questioned Documents, Raipur for handwriting expert opinion and, according to Handwriting Expert Report (Ex.P/30 Page-273 of paper-book), it has been opined that “the perron who wrote the enclosed writing Page No.6 of 31 IN CRA-416-2019 & CRA-708-2019 and signatures stamped and marked as N1 to N11 also wrote the enclosed writing and signatures stamped and marked as Q1 to Q4” vis-a-vis both the documents were written by the deceased. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the accused/appellants in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated. (5) The prosecution in order to prove its case examined as many as 27 witnesses and exhibited 36 documents apart from Final Report and FSL Report, whereas the appellants-accused in support of their defence, examined 01 witness and exhibited 07-08 documents. (6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict all the appellants herein for offence under Section 498A-, 304-B & 302 of IPC respectively and sentenced them as mentioned in Para-02 paragraph of this judgment, against which these two appeals have been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence. (7) Mr. Manoj Paranjpe, learned counsel appearing for the Page No.7 of 31 IN CRA-416-2019 & CRA-708-2019 appellant- Ashish Vaishnav (A-1) in CRA-708-2019 would submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 304-B, 302 & 498A of IPC, as the prosecution has failed to prove the same beyond reasonable doubt. He further submits that the learned trial Court has only held the death of the deceased to be homicidal in nature and thereafter did not hold any enquiry to find out by scanning the evidence available on record that the appellant- Ashish Vaishnav (A-1) by his act caused the death of the deceased or he has intention to cause her death. Learned counsel vehemently argued that it is not a case of murder rather it is a case of suicide, where the deceased committed suicide by consuming poison while working as Pharmacist at Primary Health Centre, Samarsal and left suicide note (marked as Q1 to Q4) stating that no one is responsible for his death and she on her own will and volition has committed suicide. Even otherwise from the statements of Raj Rajeshwari (PW-01) [mother of the deceased], Ishwari Vaishnav (PW-04) [sister-in-law of the deceased], Ram Krsihna (PW-07) [father of the deceased], Dr. Neha Lal (PW-24) [doctor who conducted the postmortem of the deceased] and Ganesh Ram Sidar (PW-25) [Investigating Officer] it is apparently clear that the deceased was never subjected to cruelty for or in connection with demand of dowry and, therefore, appellant- Ashish Vaishnav (A-1) is entitled for acquittal on the basis of benefit of doubt. Hence, the appeal of appellant- Ashish Vaishnav be Page No.8 of 31 IN CRA-416-2019 & CRA-708-2019 allowed in toto. (8) Mr. Pragalbha Sharma, learned counsel appearing for the appellants- Krishna Kumar (A-2), Ratnavali (A-3) and Rani Vaishnav (A-4) appearing in CRA-416-2019 would submits that the learned trial Court is absolutely unjustified in convicting the appellants for offence under Section 498A of IPC, as the prosecution has failed to prove the same beyond reasonable doubt. He further submits that as per the statement of Raj Rajeshwari (PW-01) [mother of the deceased], appellants- Krishna Kumar (A-2) and Ratnavali (A-3) were residing separately at Balodabazar and, as such, they have been roped in the present case without there being any legal and admissible evidence on record. Similarly, as per the statement of Raj Rajeshwari (PW-01) itself, appellant- Rani Vaishnav (A-4) was also residing separately with his family having 02 children. Therefore, all the appellants- Krishna Kumar (A-2), Ratnavali (A-3) and Rani Vaishnav (A-4) have falsely been implicated in the present case unnecessarily on the basis that they are close relative to the husband of the deceased. As such, all the appellants herein are entitled for acquittal on the basis of benefit of doubt, as they have only been convicted for offence under Section 498-A of IPC. Hence, there appeals are liable to allowed in full. (9) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by Page No.9 of 31 IN CRA-416-2019 & CRA-708-2019 leading evidence of clinching nature. They further submits that in view of statements of prosecution witnesses coupled with other evidence available on record, the conviction and sentence passed by the learned trial Court against all the appellants is well merited and, therefore, both the appeals deserve to be dismissed. (10) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (11) In the case at hand, on the one hand, the learned trial Court has convicted appellant- Ashish (A-1) for offence under Section 302, 304-B & 498-A of IPC, but on the other hand, proceeded to convict remaining appellants- Krishna Kumar (A-2), Ratnavali (A-3) and Rani Vaishnav (A-4) only for offence under Section 498-A of IPC. Therefore, we deem it appropriate to consider each of the offence qua the appellants one by one. As regards case of Appellant- Ashish Vaishnav (A-1): (12) In order to verify whether the learned trial Court is justified in convicting appellant- Ashish (A-1) for offence in question, it would be first relevant to notice the charges framed by the learned trial Court against him, which reads as under: “// आरोप पत्र // मैं, हि(cid:9)रेन्द्र सिं(cid:14)(cid:9) तेकाम, अपर (cid:14)त्र न्यायाधीश, पर हि"म्" लिललि%त आरोप लगाता (cid:9)ू ंगेली आप. ं हिक :- मु आ० कृ ष्ण कु मार वैणव आशीष वणव 1- आप"े हि’"ांक मा(cid:9) मई 2013 (cid:14)े 20/02/14 के बीच प्राथहिमक स्वास्थ्य Page No.10 of 31 IN CRA-416-2019 & CRA-708-2019 के न्द्र (cid:14)ेमर(cid:14)ल था"ा जर(cid:9)ागॉव क्षेत्राधिधकार के अंतग3त मृधितका श्रीमती रा"ू वैष्णव के पधित या पधित के "ाते’ार (cid:9)ोते (cid:9)ुए हिववा(cid:9) के (cid:14)ात वष3 के भीतर ’(cid:9)ेज कम ला"े एवं स्वागत (cid:14)(cid:9)ी "(cid:9)ीं कर"े की बात पर शारीरिरक एवं मा"सि(cid:14)क रूप (cid:14)े सिज(cid:14)के परिरणामस्वरूप (cid:14)ामान्य परिरस्थिस्थधितयों (cid:14)े भिभन्न उ(cid:14)की प्रताधि<त हिकया, ’वा (cid:14)ेव" कर"े (cid:14)े ग्राम (cid:14)ेमर(cid:14)ल था"ा जर(cid:9)ागाँव में ’(cid:9)ेज मृत्यु (cid:9)ो गयी। ऐ(cid:14)ा करके आप"े व(cid:9) अपराध हिकया जो धारा 304- बी भा०’ं०(cid:14)ं० के त(cid:9)त ’ण्<"ीय (cid:9)ै और इ(cid:14) न्यायालय के (cid:14)ंज्ञा" में (cid:9)ै । हिवकल्प में आप"े (cid:14)े 20/02/14 हि’"ांक मा(cid:9) मई 2013 के बीच प्राथहिमक स्वास्थ्य के न्द्र (cid:14)ेमर(cid:14)ल था"ा जर(cid:9)ागॉव क्षेत्राधिधकार के अंतग3त मृधितका श्रीमती रा"ू वैष्णव के पधित या पधित के "ाते’ार (cid:9)ोते (cid:9)ुए उ(cid:14) इ(cid:14) (cid:14)ीमा तक प्रताहिMत हिकया हिक उ(cid:14)के पा(cid:14) मृत्यु कारिरत कर"े के अलावा और कोई हिवकल्प शेष "(cid:9)ीं था भिभन्न उ(cid:14)की ’वा (cid:14)ेव" कर"े (cid:14)े ग्राम (cid:14)ेमर(cid:14)ल था"ा जर(cid:9)ागॉव में मृत्यु (cid:9)ो गयी। ऐ(cid:14)ा करके आप"े व(cid:9) अपराध हिकया जो धारा 302 भा०’ं०(cid:14)ं० के त(cid:9)त ’ण्<"ीय (cid:9)ै और इ(cid:14) न्यायालय के (cid:14)ंज्ञा" में (cid:9)ै । सिज(cid:14)के परिरणामस्वरूप (cid:14)ामान्य परिरस्थिस्थधितयों (cid:14)े आप"े उ(cid:14)ी हि’"ॉक के पूव3 (cid:14)मय एवं स्था" पर, मृधितका को ’(cid:9)ेज कम 2- ला"े और स्वागत (cid:14)(cid:9)ीं ढंग (cid:14)े "(cid:9)ी कर"े की बात को लेकर उ(cid:14)के पधित या पधित के "ाते’ार (cid:9)ोते (cid:9)ुए ’(cid:9)ेज की मॉग करके उ(cid:14)की पूर्तित (cid:9)ेतु उ(cid:14)े शारीरिरक एवं मा"सि(cid:14)क रूप (cid:14)े प्रताहिMत हिकया। ऐ(cid:14)ा करके आप"े व(cid:9) अपराध हिकया जो धारा 498- ए भा०’ं०(cid:14)ं० के त(cid:9)त ’ण्<"ीय (cid:9)ै और इ(cid:14) न्यायालय के (cid:14)ंज्ञा" में (cid:9)ै । मैं आ’ेभिशत करता (cid:9)ू ं हिक उपरोक्त अपराध के न्यायालय द्वारा हिकया जावेगा । ” लिलए तुम्(cid:9)ारा हिवचारण इ(cid:14) (13) Having noticed the charge framed against the appellant herein under Section 304B of the IPC and in alternative, under Section 302 of the IPC, we shall proceed to consider the submissions of learned counsel for the parties and the gist of the two offences. (14) The gist of the two offences punishable under Section 302 of the IPC and Section 304B of the IPC is the extinction of life under unnatural circumstances and there is nothing in the two sections to either explicitly or impliedly exclude either of the two if one is Page No.11 of 31 IN CRA-416-2019 & CRA-708-2019 applicable. At this stage, it would be appropriate to notice Sections 299, 300 & 302 of the IPC, which state as under: - “299. Culpable homicide.—Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— Secondly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— Fourthly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 302. Punishment for murder.—Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine.” (15) Homicide is the killing of a human being by a human being. It is either lawful or unlawful. Lawful homicide, or simple homicide, includes several cases falling under the General Exceptions Page No.12 of 31 IN CRA-416-2019 & CRA-708-2019 (Chapter IV). Unlawful homicide includes—(1) Culpable homicide not amounting to murder (Section 299), Murder (Section 300), Rash or negligent homicide (Section 304-A), and Suicide (Sections 305 & 306). Halsbury classifies homicide as follows: “The term “homicide” is used to describe the killing of a human being by a human being. Such a killing may be lawful or it may be unlawful and criminal. Unlawful homicide includes murder, manslaughter, causing death by dangerous driving, killing in pursuance of a suicide pact, and infanticide.”1 (16) "Homicide", as derived from Latin, literally means the act of killing a human being. Under Section 299 of the IPC, homicide becomes culpable when a human being terminates the life of another in a blameworthy manner. Culpability depends on the knowledge, motive and the manner of the act of the accused. The offence is punishable under either Section 302, or Section 304 of the IPC which consists of two parts. (See Chenda @ Chanda Ram v. State of Chhattisgarh2.) (17) Shuarf-ud-din J, in the matter of Reaz-ud-din Shaikh v. Emperor3 held as under: - ....all murder is culpable homicide, but all culpable homicide is not murder... subject to the five exceptions to section 300, Indian Penal Code, every act that falls within one or more of the four clauses of section 300, Indian Penal Code, is murder and also falls within the definition of culpable homicide 1 Halsbury’s Laws of England, 4th Edn, vol II, para 1151, p 613. 2 (2013) 12 SCC 110 3 (1910) 11 Cr LJ 295 Page No.13 of 31 IN CRA-416-2019 & CRA-708-2019 in Section 299, Indian Penal Code. Every act that falls within any one or more of the sets of circumstances described in the five exceptions of that section, is by that fact taken out of section 300, Indian Panel Code but the act notwithstanding continues to be within section 299 and since it is not murder, it is culpable homicide not amounting to murder. Every act that falls within section 299 and does not fall within section 300, since it is not murder, is culpable homicide not amounting to murder." (18) Section 302 of the IPC provides punishment for murder prescribing that whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. As such, for charging an accused under Section 302 of the IPC, the prosecution has to prove by evidence that the accused by his acts has caused the death of the deceased with the intention of causing death. But for the exceptions carved out in Section 300 of the IPC which may amount to culpable homicide not amounting to murder, all other instances of culpable homicide would be punishable as murder under Section 302 of the IPC because it shall come within the definition of murder as described under Section 300 of the IPC. However, Section 304B of the IPC, which defines dowry death, states as under: - "304B. 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, Page No.14 of 31 IN CRA-416-2019 & CRA-708-2019 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). (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." The above provision was inserted by Act 43 of 1986 and came into force with effect from 19-11-1986. (19) A careful perusal of the definition of Section 304B of the IPC would show that neither the words 'culpable homicide' nor the word 'murder', finds place in Section 304B. The expression used therein is 'the death of woman deceased' (sic). In view of the compelling nature of the presumption drawable under Section 113B of the Evidence Act, the applicability of the said Section 113B is always to be confined to the cases covered by Section 304B of the IPC and the applicability of Section 113B is limited to cases 'when the question is whether a person has committed the dowry death of a woman ..." that too requires proof of two further facts. Firstly, it is shown that soon before her death such a woman had been subjected by such person to 'cruelty' or 'harassment' and, secondly, that the cruelty of her husband was 'for or in connection with any demand for dowry'. If these two facts are established by evidence, the presumption Page No.15 of 31 IN CRA-416-2019 & CRA-708-2019 under Section 113B of the Evidence Act as to the commission of the offence under Section 304B of the IPC would be attracted straightway. (20) In order to convict an accused for the offence punishable under Section 304B of the IPC, the following essentials must be satisfied— The death of a woman should be caused by burn or bodily injury or otherwise than under normal circumstances. Such death should have occurred within seven years of the marriage. Soon before the death of deceased, she must have been subjected to cruelty or harassment by her Husband or any relative of her Husband. Such cruelty or harassment should be for or in connection with demand for dowry. Thus, if the aforesaid ingredients are established by the prosecution by leading appropriate reliable evidence, such death shall be called dowry death and the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. (21) Section 113B of the Indian Evidence Act, 1872 speaks about presumption as to dowry death, which 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 Page No.16 of 31 IN CRA-416-2019 & CRA-708-2019 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 purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)." (22) The aforesaid provision shows that if the woman has been subjected to cruelty as defined in Section 498A of the IPC, the court may presume that such person has caused dowry death. Section 2 of the Dowry Prohibition Act, 1961 provides as under:- "2. Definition of "dowry". In this Act," dowry" means any property or valuable security given or agreed to be given either directly or indirectly- a. by one party to a marriage to the other party to the marriage; or b. by the parents of either party to a marriage or by a other person, to either party to the marriage or to any other person; at or before or after the marriage us consideration for the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies." (23) To attract the provisions of Section 304B of the 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 or harassment "for, or in connection with the demand for dowry". The expression "soon before her death" used in Section 304B of the IPC Page No.17 of 31 IN CRA-416-2019 & CRA-708-2019 and Section 113B of the Evidence Act is present with the idea of proximity test. (24) In the matter of Appasaheb and another v. State of Maharashtra4, it has been held by the Supreme Court as under:- “9. Two essential ingredients of Section 304-B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for “dowry”. The explanation appended to sub section (1) of Section 304-B IPC says that “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. 10. Section 2 of the Dowry Prohibition Act reads as under: “2. Definition of ‘dowry’.- In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly. (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.” 4 (2007) 9 SCC 721 Page No.18 of 31 IN CRA-416-2019 & CRA-708-2019 In view of the aforesaid definition of the word 11. “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving and taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (see Union of India v. Garware Nylons Ltd and Chemical and Fibres of India Ltd. v. Union of India). A demand for money on account of some financial stringency or for making some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for 'dowry' as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz demand for dowry is not established, the conviction of the appellants cannot be sustained.” (25) The Supreme Court in the matter of Rajbir v. State of Haryana5 directed all the trial courts in India to ordinarily add 5 (2010) 15 SCC 116 Page No.19 of 31 IN CRA-416-2019 & CRA-708-2019 Section 302 to the charge of Section 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women. However, it was clarified by their Lordships of the Supreme Court in the matter of Jasvinder Saini v. State (Govt. of NCT of Delhi)6 and it was held by their Lordships that the direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. It was further held that all that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. Their Lordships pertinently held as under: - It is common ground that a charge under "15. Section 304-B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304-B is established. The ingredients constituting the two offences are different, thereby demanding 6 (2013) 7 SCC 256 Page No.20 of 31 IN CRA-416-2019 & CRA-708-2019 appreciation of evidence from the perspective relevant to such ingredients. The trial court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir case [Rajbir v. State of Haryana, (2010) 15 SCC 116 : (2013) 2 SCC (Cri) 149 : AIR 2011 SC 568]. The High Court no doubt made a half-hearted attempt to justify the framing of the charge independent of the directions in Rajbir case (supra), but it would have been more appropriate to remit the matter back to the trial court for fresh orders rather than lending support to it in the manner done by the High Court." (26) Similarly, in the matter of Vijay Pal Singh and others v. State of Uttarakhand7, it has been held that Section 304B is not substitute for Section 302 of the IPC and observed as under: - otherwise "18. However, it is generally seen that in cases where a married woman dies within seven years of marriage, than under normal circumstances, no inquiry is usually conducted to see whether there is evidence, direct or circumstantial, as to whether the offence falls under Section 302 of IPC. Sometimes, Section 302 of IPC is put as an alternate charge. In cases where there is evidence, direct or circumstantial, to show that the offence falls under Section 302 of IPC, the trial court should frame the charge under Section 302 of IPC even if the police has not expressed any opinion in that regard in the report under Section 173(2) of the Cr.P.C. Section 304B of IPC can be put as an alternate charge if the trial court so feels. In the course of trial, if the court finds that there is no evidence, direct or circumstantial, and proof beyond reasonable doubt is not available to establish that the same is not homicide, in such a situation, if the 7 (2014) 15 SCC 163 Page No.21 of 31 IN CRA-416-2019 & CRA-708-2019 ingredients under Section 304B of IPC, are available, the trial court should proceed under the said provision. In Muthu Kutty and another v. State by Inspector of Police, T.N.8, this Court addressed the issue and held as follows: "20. A reading of Section 304-B, IPC and Section 113-B, Evidence Act together makes it clear that law authorises a presumption that the husband or any other relative of the husband has caused the death of a woman if she happens to die in circumstances not normal and that there was evidence to show that she was treated with cruelty or harassed before her death in connection with any demand for dowry. It, therefore, follows that the husband or the relative, as the case may be, need not be the actual or direct participant in the commission of the offence of death. For those that are direct participants in the commission of the offence of death there are already provisions incorporated in Sections 300, 302 and 304. The provisions contained in Section 304-B IPC and Section 113-B of the Evidence Act were incorporated on the anvil of the Dowry Prohibition (Amendment) Act, 1984, the main object of which is to curb the evil of dowry in the society and to make it severely punitive in nature and not to extricate husbands or their relatives from the clutches of Section 302, IPC, if they directly cause death. This conceptual difference was not kept in view by the courts below. But that cannot bring any relief if the conviction is altered to Section 304, Part II. No prejudice is caused to the accused- appellants as they were originally charged for offence punishable under Section 302, IPC along with Section 304-B IPC." "19. In a recent decision, this Court in Jasvinder Saini v. State (Govt. of NCT of Delhi)7 observed thus: 8 (2005) 9 SCC 113 Page No.22 of 31 IN CRA-416-2019 & CRA-708-2019 It is common ground that a charge under 15. Section 304-B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304-B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir case [Rajbir v. State of Haryana, (2010) 15 SCC 116 : (2013) 2 SCC (Cri) 149 : AIR 2011 SC 568]. The High Court no doubt made a half-hearted attempt to justify the framing of the charge independent of the directions in Rajbir case (supra), but it would have been more appropriate to remit the matter back to the trial court for fresh orders rather than lending support to it in the manner done by the High Court." *** *** *** Page No.23 of 31 IN CRA-416-2019 & CRA-708-2019 In two of the early decisions of this Court, 23. after the introduction of Section 304B of IPC, the ingredients of the offence and the interplay of Section 304B of IPC with Sections 498A, 302, 306 of IPC have also been discussed. In State of Punjab v. Iqbal Singh9, the Court in paragraph 8 stated that: "8. ... The legislative intent is clear to curb the menace of dowry deaths, etc., with a firm hand. We must keep in mind this legislative intent. It must be remembered that since crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing Sections 113-A and 113-B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life. If a married woman is subjected to cruelty or harassment by her husband or his family members Section 498-A, IPC would be attracted. If such cruelty or harassment was inflicted by the husband or his relative for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under Section 304-B, IPC. When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with, any 9 (1991) 3 SCC 1 Page No.24 of 31 IN CRA-416-2019 & CRA-708-2019 demand for dowry, Section 113-B, Evidence Act provides that the court shall presume that such person had caused the dowry death. Of course if there is proof of the person having intentionally caused her death that would attract Section 302, IPC. Then we have a situation where the husband or his relative by his willful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would squarely fall within the ambit of Section 306, IPC. In such a case the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing suicide. ..." *** *** *** 32. Now, the question as to why the High Court, having entered a conclusion that it is a case of murder at the hands of the appellants, yet chose to convict them only under Section 304B of IPC. As we have already indicated, it could have been a case for the High Court or for that matter this Court for issuing notice for enhancement of punishment to those against whom there is evidence to connect them with the murder. The incident being of 1991, the prosecution having not chosen to link all the circumstances in a chain with no missing links to reach the irresistible and conclusive finding on involvement of the accused, the High Court would have thought it more prudent to convict the accused only under Section 304B of IPC. No doubt, in such a case, the High Court should not have entered a categoric finding on murder since once the court enters such a finding, the punishment can only be under Section 302 of IPC. Having regard to the circumstances which we have referred to above, we are of the view that though this case could have been dealt with under Section 302 of IPC, at this distance of time and in view of the lack of evidence on the chain of circumstances, it will not be proper for this Court to proceed under Section 302 of IPC, for enhancement of Page No.25 of 31 IN CRA-416-2019 & CRA-708-2019 punishment. There are no such problems as far as the presumption under Section 113B of the Indian Evidence Act, 1872 is concerned. Once the ingredients of Section 304B of IPC, are established, the presumption is that the death has been caused by the husband or his relatives, who caused the cruelty or harassment. That presumption can safely be drawn in the instant case, as we have already discussed above, as all the ingredients under Section 304B of IPC have been proved beyond doubt in the present case particularly since there is no direct evidence on the part of the appellants to rebut the same." (27) In the case at hand, the learned trial Court convicted the appellant for offence under Section 302 of IPC basically relying upon the judgment of the Supreme Court in the matter of Trimukh Maroti Kirkan v. State of Maharashtra 10 , wherein it has been held by their Lordships that where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided and if the accused doesn’t offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime/offence. However, admittedly, in the present case, the deceased died on account of consuming poison while working as Pharmacist at Primary Health Centre, Samarsal. Further, one suicide note (marked as Q1 to Q4) written by the deceased was also 10 2006 (10) SCC 681 Page No.26 of 31 IN CRA-416-2019 & CRA-708-2019 seized, wherein it has clearly been stated that “no one is responsible for deceased’s act of suicide and if anything happens no one should be held responsible for her death” and, according to Handwriting Expert Report (Ex.P/30 Page-273 of paper-book), it has also been opined that the person who wrote the enclosed writing and signatures stamped and marked as N1 to N11 also wrote the enclosed writing and signatures stamped and marked as Q1 to Q4, meaning thereby, the said suicide note has apparently been written by the deceased. But, the learned trial Court erroneously did not rely upon the suicide note (marked as Q1 to Q4 at Page Nos. 243- 249 of paper-book), holding that it has not been proved in accordance with law, for the reason that the evidence available on record suggest that recovery of said suicide note has duly been proved by Raj Rajeshwari (PW-01) [mother of the deceased] and Ram Krishna (PW-07) [father of the deceased]. As such, it cannot be said that present is a case of murder of the deceased at the hands of appellant- Ashish (A-1) because from the evidence available on record both documentary and ocular it is clear like noon day that the deceased committed suicide by consuming poison and died while working as Pharmacist at Primary Health Centre, Samarsal and also left suicide note (Q1 to Q4) and handwriting of the deceased has also been proved on it vide Handwriting Expert Report (Ex.P/30 Page-273 of paper-book). Therefore, on that basis, appellant- Ashish (a-1) is entitled for acquittal for offence under Page No.27 of 31 IN CRA-416-2019 & CRA-708-2019 Section 302 of IPC. We hereby hold accordingly. (28) So far as conviction of appellant- Ashish (A-1) for offence under Section 304-B of IPC is concerned, mother of the deceased, namely, Raj Rajeshwari (PW-01) has stated that on the date of offence at about 10-11 AM, she had conversation with the deceased, whereby the deceased informed her that as they have not given motor-cycle and money in cash to the accused/appellants, they used to subject her with cruelty and also commit ‘marpeet’ with her. However, to substantiate the said fact of deceased informing her mother about cruelty by the accused persons in connection with demand of dowry, no call details have been proved in the present case. As per the statement of police officer- Ganesh Ram Sidar (PW- 25), in Para-16, he has categorically admitted that though he has seized the mobile phone of the deceased, but no call details have been produced by him before the Court. Furthermore, though deceased’s mother- Raj Rajeshwari (PW-01) has also stated that she has seen scratches (injuries) on the back of the deceased, but her said statement is completely missing in her statement recorded under Section 161 of CrPC (Ex.D/01). Therefore, both the aforesaid statements of deceased’s mother- Raj Rajeshwari (PW-01) pales into insignificance and cannot be relied upon. However, Raj Rajeshwari (PW-01) confirms the seizure of suicide note (Q1 to Q4) is in the handwriting of the deceased, in which it is stated that “no one is responsible for deceased’s act of suicide and if anything happens no Page No.28 of 31 IN CRA-416-2019 & CRA-708-2019 one should be held responsible for her death”. Moreover, she has also admitted in Para-11 that with regard to dispute between her daughter (deceased) and appellant- Ashish (A-1), neither she nor her family members have ever submitted any application with regard to settlement of the said dispute before the Women Welfar and Reconciliation Centre and, she or her family members have never made any complaint with regard to cruelty on the deceased by the appellants herein for or in connection with demand of dowry. Furthermore, father of the deceased, namely, Ram Krishna (PW-07) has also admitted in Para-15 that after the death of his daughter (deceased), one suicide note (marked as Q1 to Q4) written by the deceased was seized, in which, she has taken the sole responsibility for committing suicide and, there was no involvement of any of the
Decision
appellants herein for her death. As such, in view of the above, it is crystal clear that there is no evidence available on record to show that the deceased was subjected to cruelty or harassment by any the appellants for or in connection with demand of dowry soon before her death and, more particularly, in the suicide note (marked as Q1 to Q4) the deceased has completely exonerated all the appellants for the offences in question. (29) Consequently, though the deceased of the deceased has occurred within seven years of marriage, as her marriage took place in the year 2013 and she died on 20.02.2014 and, her death was not normal, as she died unnatual death by consuming Page No.29 of 31 IN CRA-416-2019 & CRA-708-2019 poison while working as as Pharmacist at Primary Health Centre, Samarsal, however, barring these two conditions of Section 304-B of IPC, the other ingredients are absolutely lacking in the present case. There is absolutely no evidence to show that at any point of time the appellant has made any demand of dowry and harassed or subjected the deceased with cruelty soon before her death in connection with demand of dowry. Therefore, we are of the considered opinion that the prosecution has not succeeded in bringing home the ingredients of offence under Section 304-B of IPC and, as such, the learned trial Court is absolutely unjustified in convicting the appellant- Ashish (A-1) for offence under Section 304-B of IPC and he is liable to be acquitted of the said charge on the basis of benefit of doubt. We hereby hold accordingly. (30) In the present case, the learned trial Court has convicted all the appellants herein for offence under Section 498-A of IPC. However, in the light of the detailed discussion made hereinabove, the prosecution has miserably failed to establish on record that the deceased was subjected to cruelty by any of the appellants herein soon before her death. Consequently, on the basis of statements of Raj Rajeshwari (PW-01) [mother of the deceased], Ram Krsihna (PW- 07) [father of the deceased], Dr. Neha Lal (PW-24) [doctor who conducted the postmortem of the deceased] and Ganesh Ram Sidar (PW-25) [Investigating Officer] coupled with the suicide note (marked as Q1 to Q4), which is duly proved by the handwriting expert report Page No.30 of 31 IN CRA-416-2019 & CRA-708-2019 (Ex.P/30), it would be totally unsafe and risky to convict the appellants herein for offence under Section 498-A of IPC, more particularly when, as per the statement of Raj Rajeshwari (PW-01) [mother of the deceased], appellants- Krishna Kumar (A-2) and Ratnavali (A-3) used to reside separately at Balodabazar, whereas appellant- Rani Vaishnav (A-4) also used to reside separately with her family alongwith 02 children. We hereby hold accordingly. (31) Concludingly, in view of foregoing analysis, we are unable to uphold the conviction and their respective sentence awarded to all the appellants by the learned trial Court. Accordingly, the conviction and their respective sentences of all the appellants, namely, Ashish Vaishnav (A-1), Krishna Kumar (A-2), Ratnavali (A-3) and Rani Vaishnav (A-4) for offence punishable under Section 302, 304-B, 498-A of IPC respectively alongwith the fine and default stipulation, as imposed upon them by the learned trial Court, are hereby set aside. The appellants are acquitted of the said charge on the basis of benefit of doubt. Since appellant- Ashish (A-1) is reported to be in jail, therefore, we direct that he be released from jail forthwith, if not required in any other matter/case. Whereas, appellants- Krishna Kumar (A-2), Ratnavali (A-3) and Rani Vaishnav (A-4) are reported to be on bail, but the need not to surrender, however, their bail bonds shall remain in force for a further period of six months in view of provisions contained under Section 437-A of CrPC. (31) Consequently, both the criminal appeals are allowed. Page No.31 of 31 IN CRA-416-2019 & CRA-708-2019 (33) Let a certified copy of this order alongwith original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any. Sd/- (Sanjay K. Agrawal) Judge Judge Sd/- (Deepak Kumar Tiwari) s@if