High Court of Chhattisgarh
Case Details
1 / 10 Digitally signed by ANJANI KUMAR ALLENA Date: 2025.02.17 15:21:51 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR ACQA No. 248 of 2010 Judgment Reserved on 04.02.2025 Judgment Delivered on 17.02.2025 • State of Chhattisgarh, through District Magistrate, Durg, District Durg (CG) ... Appellant versus 1. Ajay Dubey, S/o Durga Prasad Dubey, aged about 31 years, by caste Brahman, Occupation unemployed, R/o Jawaharpara, Balod, Tahsil Balod, District Durg (CG) 2. Smt. Sunita Dubey, W/o Durga Prasad Dubey, aged about 53 years, by caste Brahman, occupation household lady, R/o Jawaharpara, Balod, Tahsil Balod, District Durg (CG) ... Respondents For Appellant/State : Shri Deepak Kumar Singh, P.L. For Respondents : None, though served.
Legal Reasoning
Hon’ble Shri Justice Sanjay Agrawal & Hon’ble Shri Justice Radhakishan Agrawal C A V Judgment Per Radhakishan Agrawal, J. 1. This acquittal appeal preferred by the State arises out of the judgment dated 17.12.2003 passed by the Additional Sessions Judge, Balod, Dist. Durg (CG) in Sessions Trial No.31/2003, whereby the learned trial Court acquitted the accused persons/respondents herein of the charges under Sections 498-A and 304-B IPC. 2. Case of the prosecution, in brief, is that marriage of deceased- Sunanda Dubey was solemnized with respondent No.1 Ajay Dubey on 2 / 10 2nd July, 2002 according to Hindu Rites and Rituals and soon after the marriage, deceased joined the company of the respondent No.1. After the marriage, behaviour of respondents have changed towards Sunanda Dubey and they started torturing and harassing the deceased mentally and physically for bringing insufficient dowry and used to demand cow, calf, CD Player and cash in dowry. Being fed up with the persistent ill-treatment made by respondents, prior to incident, during the course of Navratri days, Sunanda Dubey went to her parental home situate at village Akalvara and gave information about the dowry raised by the respondents. Respondent No.1 went to her parental home and brought her to matrimonial home with an assurance that he would not harass her and just three days after that, Sunanda suddenly died in her in-laws’ house. The report of incident was lodged by P.W.6 Rajeshwar Prasad (father of the deceased) in Balod Police Station, based on which, Merg intimation was recorded vide Ex.P.8 and thereafter, based on written report, F.I.R. vide Ex.P.7 was launched against the respondents. Vide Ex.P.2, inquest was conducted and was sent for Post-mortem vide Ex.P.6. Post-mortem was conducted by R.K.Gore (P.W.11) on the dead body vide Ex.P.12, according to which, cause of death of deceased was cardio- respiratory arrest, which may occur by acute poison, but mode of death was not mentioned. During investigation, vide Ex.P-3, household material, gold and silver ornaments were seized, vide Ex.P.4, body parts of the deceased were seized, vide Ex.P.9, cloths of the deceased were seized and vide Ex.P.10, soil and some clothes were also seized. Seized articles were sent for chemical examination 3 / 10 and vide Ex.P.17, organic pesticide was found in the body of the deceased. 3. Statements of the witnesses were recorded and after completing investigation, charge sheet was filed against the accused persons/respondents before the concerned trial Court under Sections 498-A & 304-B of IPC. Accused/respondents abjured their guilt and prayed for trial. 4. The prosecution in order to bring home the offence, examined as many as 13 witnesses in support of its case and exhibited 17 documents connecting the respondents/accused persons to the crime in question. However, in their defence, respondents/accused persons have examined none, nor exhibited any document. 5. The trial Court, after hearing counsel for the parties and appreciating the evidence on record, by the impugned judgment acquitted the accused persons/respondents of the said charges leveled against them. 6. Learned counsel for the Appellant/State would submit that the trial Court is completely unjustified in acquitting the accused persons/respondents herein of said charges by recording perverse findings. He would further submit that the evidence available on record clearly shows that soon before her death, deceased was subjected to cruelty or harassment for demand of dowry by the respondents and on account of which, deceased died under suspicious circumstances and despite that the learned trial Court has committed grave error in acquitting the accused persons/respondents without appreciating the evidence on record in its correct perspective, thus the impugned 4 / 10 judgment of acquittal suffers from perversity and illegality, therefore, the same is liable to be set aside. 7. We have heard learned counsel for the Appellant/State and considered his submissions made herein-above and also perused the record. 8. The Supreme Court in the matter of Jafarudheen and others vs. State of Kerala reported in (2022) 8 SCC 440 has considered the scope of interference in Appeal against acquittal, which reads as under:- 25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be terms as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.” 9. 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". The expression "soon before her death" used in Section 304-B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. 10. As regards the principles concerning the above-referred provisions, this Court wishes to refer to the decisions reported in K. Prema S. Rao 5 / 10 v. Yadla Srinivasa Rao 1 , Kaliyaperumal v. State of T.N. 2 , Devi Lal v. State of Rajasthan 3 and Ashok Kumar v. State of Haryana 4 . 11. In K. Prema S. Rao (supra) it has been held as under:- “16. … To attract the provisions of Section 304-B 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'.” 12. In Kaliyaperumal (supra) relevant portion reads as under:- “5. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led in by the prosecution. 'Soon before' is a relative term and it would depend upon the circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence. 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. The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to the expression 'soon before' used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the cruelty