1 -Smt. Sukaro Bai W/o Dullu Ram Kawade Aged About 47 Years 2 -Gokul v. State Of Chhattisgarh Through Police Station House Korar District - Uttar Bastar Kanker Chhattisgarh
Case Details
1 VAIBHAV SINGH Digitally signed by VAIBHAV SINGH Date: 2025.03.10 18:21:53 +0530 2025:CGHC:5921 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1991 of 2019 1 -Smt. Sukaro Bai W/o Dullu Ram Kawade Aged About 47 Years 2 -Gokul Ram Kawade S/o Dullu Ram Kawade Aged About 24 Years 3 - Dullu Ram Kawade S/o Shri Dukal Singh Kawade Aged About 57 Years R/o Village Bundeli, Police Station Korar District - Uttar Bastar Kanker Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Police Station House Korar District - Uttar Bastar Kanker Chhattisgarh. .. Respondent For Appellant : Mr. Gajendra Sahu, Advocate For Respondent/State : Ms. Isha Jajodiya, P.L. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 31/01/2025 1. The present criminal appeal has been filed under Section 374(2) of Criminal Procedure Code 1973, by the appellants against the impugned judgment of conviction and sentenced dated 30.10.2019 2 passed by learned Additional Sessions Judge, (FTC) Uttar Bastar Kanker (C.G.), in Sessions Case No.09 of 2019, whereby the appellants have been convicted and sentenced in the following manner:- Conviction Sentence Under Section 304(B)/34 of : R.I. for 10 years I.P.C. Under Section 498(A)/34 of : R.I. for 3 years and fine of Rs. 2000/- IPC and in default of payment of fine amount additional R.I. 6 months (for accused No.1 Sukasro Bai) Under Section 304(B)/34 of : R.I. for 10 years I.P.C. Under Section 498(A)/34 of : R.I. for 3 years and fine of Rs. 2000/- IPC and in default of payment of fine amount additional R.I. 6 months (for accused No.2 Gokul Ram Kawde) Under Section 304(B)/34 of : R.I. for 10 years I.P.C. Under Section 498(A)/34 of : R.I. for 3 years and fine of Rs. 2000/- IPC and in default of payment of fine amount additional R.I. 6 months (for accused No.3 Dulluram Kawde) (All the sentences were directed to run concurrently.) 2.
Legal Reasoning
The brief facts of the case are that the deceased Sudha Bai Kawade was married with the appellant No. 2 Gokul Ram Kawade on 04.05.2018. She consumed poison in her matrimonial house on 13.01.2019 and she was being taken to Bhanupratrappur Hospital and after given her first aid, she was being referred to District Hospital, Kanker. While shifting to District Hospital, Kanker, on the way she 3 died. The merg intimation Ex.P/22 was recorded on the intimation given by Gokul Ram Kawade (appellant No.2) on 13.01.2019. The inquest Ex.P/2 was prepared in presence of the witnesses. The dead body of the deceased was sent for its post-mortem to Community Health Center, Dhanelikanhar, where PW-8 Dr. Veenita Markam has conducted the post-mortem of the dead body of the deceased and gave report Ex.P/12. While conducting the post-mortem, no external injuries have been found on the body of the deceased and opined that the cause of death is asphyxia due to unknown, poisoning, comment on the type of poisoning will be given and after FSL and nature of death was as per circumstantial evidence. The viscera of the deceased was sent for its chemical examination to State FSL Raipur from where report Ex.P/14 was received and organo-phosphorus insecticides phosphamidon was found in the viscera of the deceased. The FIR Ex.P/27 was registered against the appellants for the offence under Sections 304-B, 34 of IPC. Spot map Ex.P/26 and Ex.P/33 was prepared by the police and Ex.P/18 was prepared by the patwari. The list of dowry articles written in the register has been seized vide seizure memo Ex.P/5. One marriage card of the deceased as well as the appellant No.2 was also seized vide seizure memo Ex.P/6. The dowry articles have also been seized from the house of the appellant vide seizure memo Ex.P/34. A query was raised from the doctor to disclose the symptoms on the basis of which the doctor came to the conclusion that death of the deceased was by suspected poisoning and in answer to query raised by the police, report have been 4 submitted by the doctor Ex.P/13 and opined that the reasons for unknown poisoning was frothy secretion from mouth to nose and nails of both the hands become black. In further query raised by the police vide Ex.P/37, the doctor again opined that vide document Ex.P/37-A, that 5 to 50 mg/kg/mt is the fatal doze of phosphamidon and the amount of insecticides cannot be determined exactly but approximately range is below the above mentioned and the cause of death is asphyxia. The accused persons have been arrested on 24.02.2019. The statement of the witnesses under Section 161 of Cr.P.C. have been recorded and after completion of usual investigation charge-sheet was filed against the appellants for the offence under Sections 304-B/34, 201 of IPC before the learned Chief Judicial Magistrate, Kanker. 3. The case was committed to the Court of learned Sessions Judge, kanker from where the same has been transferred for its trial to the learned trial Court. The learned trial Court has framed the charge against the appellants for the offence under Sections 306/34, 498A/34 and 201/34 of IPC vide order dated 26.06.2019. The charge has been amended by the learned trial Court vide order dated 10.07.2019 and the charge under Section 304B/34 in alternative 306/34, 498A/34 and 201/34 of IPC have been framed against the appellants. The appellants denied the charge and claimed trial. 4. In order to prove the charge against the appellants the prosecution has examined as many as 18 witnesses. The statement of the appellants under Section 313 of Cr.P.C. have also been recorded in 5 which they denied the circumstances appears against them, plead innocence and have submitted that they have been falsely implicated in the offence. 5. After appreciation of the oral as well as documentary evidence led by the prosecution, the learned trial court has acquitted the appellants from the offence under Section 201/34 & 306/34 of IPC. However the appellants have been convicted for the offence under Section 304-B/34, 498-A/34 of IPC and sentenced them as mentioned in the earlier part of the judgment. Hence this appeal. 6.
Legal Reasoning
Learned counsel for the appellants would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses. Which can not made basis to hold conviction of the appellants for the alleged offence. There is no evidence that the deceased was subjected to cruelty for demand of dowry soon before her death which is the prerequisite condition to hold conviction of the appellants for the offence under Section 304-B of IPC. He would further submit that it comes in the evidence of witnesses that the deceased was short tempered and the marriage was perform against her wishes therefore she went under the depression and consumed poison. The witnesses are the relative of the deceased who stated against the appellants whereas the independent witnesses have supported the accused persons. He would also submit that though the deceased has died within 7 years of her marriage but to brought into the parameters of the offence under Section 304-B of IPC, the 6 reasonable nexus should have been produced by the prosecution with the death of the deceased and the harassment given to her by the appellants in absence of any harassment towards demand of dowry, no presumption can be drawn against the the appellants that they caused dowry death to the deceased. A general and omnibus allegation have been levelled by the parents of the deceased and there is no proximate link between the fact of cruelty based on dowry demand and the death of the victim. The evidence led by the prosecution does not fulfill the requirement of the evidence of dowry death and therefore, the appellants are entitled for acquittal. 7. On the other hand, learned counsel for the State opposes and have submitted that from the evidence led by the prosecution, the guilt of the appellants have duly being established. But for minor omission or contradictions their evidence are fully reliable to hold conviction of the appellants for the offence in question. There are consistent demand of dowry and harassment to the deceased by her husband and in laws which resulted into unfortunate incident and she died in unnatural circumstance by consuming poison. She died within 8 month of her marriage and there is sufficient evidence on record that she was subjected to cruelty for demand of dowry. Therefore, there is no infirmity or illegality in the judgment passed by the learned trial Court and the appeal is liable to be dismissed. 8. I have heard learned counsel for the parties and perused the record with utmost circumspection. 9. It is not in dispute that the marriage between the deceased and the 7 appellant no. 2 was solemnized on 04.05.2018 and the deceased died on 30.01.2019 due to poising that is in unnatural circumstance. The death of the deceased in unnatural circumstance that is by poisoning has also been proved from the post-mortem report Ex.P/12 and query report Ex.P/13 and Ex.P/37A which has been proved by PW-8 Dr. Veenita Markam who conducted the post-mortem of the dead body of the deceased. From the evidence of the witnesses to the inquest also it has been found that the deceased died in unnatural circumstance within 7 years of her marriage. 10. So far as the involvement of the appellants in the offence in question and harassment to the deceased for demand of dowry are concerned. I again examined the evidence available on record. PW-1, Ramjiram Parchapi, who is the father of the deceased, have stated in his evidence that after the marriage his daughter was resided happily in her matrimonial house for about two months, thereafter she informed him that her husband and in laws started harassing her for demand of dowry. His wife has given Rs.5,000/- and then she return back to her matrimonial house. When the said amount was spent, she again came to his house and again said that the accused persons are demanding money from her. His wife has given again Rs.4,000/- and after about 15 days she had given Rs.3,000/- more. On 30.01.2019 he was being informed that his daughter has been admitted in Dhanelikanhar hospital and when he along with his wife and other family members went there, they came to know that she consumed poisoning and has 8 died. In cross-examination, he stated that he had gone to her matrimonial house once to discuss the allegation levelled by his daughter against them but at that time his co-brother (Samdhi) was not in his house and the mother-in-law of his daughter was sick, therefore, he left his daughter to her matrimonial house and came back to his house. Thereafter, the occasion could not came again to go there and discuss to them about the allegation. He denied the suggestion given by the defence that they have performed the marriage against her wish. 11. PW-2, Meenabati the mother of the deceased have stated in her evidence that after about 2 months of the marriage her daughter came to her house and informed that her husband and in laws are harassing her for demand of dowry and she gave her Rs.5,000/- cash. The accused persons again started harassing her and again demanded money and then she has given Rs.4,000/- to her. And about 15 days Rs.3,000/- was also given to her. In the repeated cause of their action, they demanded Rs.7,000/- more but at that time she could give only Rs.2,000/- as she was having that much of amount with her. At that time she return back to her matrimonial house by weeping. With respect to the quarrel between them the father-in-law of the deceased came to her house and on his insist, she along with her elder son had gone to the matrimonial house of the deceased and at that time her daughter has informed about the harassment given by the husband and in laws. She also informed her that her husband has assaulted her brutally. On the date of incident, her father-in-law has informed her 9 about hospitalization of the deceased. When they went to the hospital on the next morning, the deceased has already died. In the cross- examination she stated that her daughter was used to come to her house with the interval of one month and return to her matrimonial house after taking money from them. She denied the suggestion that her marriage was not performed as per her wish. The defence has given suggestion to this witness that deceased was subjected to cruelty for demand of dowry only by the appellant Gokul and not by the other appellants but she denied by that and said that all the appellants have committed cruelty to her daughter for demand of dowry. 12. PW-7 is the brother of the deceased who too have stated that after 2-3 months of the marriage his sister was residing happily in her matrimonial house and thereafter the appellants started harassing her for demand of dowry and appellant Gokul Ram Kawde used to beat her. When the accused persons demanded money from her, he also has given Rs.2,000/- once. When the appellants assaulted his sister he also went to her house where the elderly persons of the family have convinced the appellants. When they received information about the incident, they went to the hospital and found that deceased had already died. In cross-examination this witness has remained firm in saying that the deceased was subjected to cruelty for demand of dowry and the appellant Gokul Ram Kawde has beaten her. In cross- examination he also stated that the appellant Gokul Ram Kawde has 10 beaten his sister in the house of his maternal uncle and his maternal under and aunt have intervened in the quarrel. 13. PW-3 Hukum Chand Sahu, PW-4 Ramu Ram, are the witnesses to whom the mother of the deceased have informed about the harassment given by the appellants to her daughter and they convinced the accused persons not to harass her. When they received information about the incident, they also had gone to the hospital and found the deceased died. Nothing could be extracted from these two witnesses by the defence so that their evidence can be disbelieved that the incident of harassment for demand of dowry has not been informed to this witness by the mother of the deceased. 14. PW-5 Ishwar Singh Netham, PW-6 Usha Singh Netam, PW-9 Nirmala, PW-10 Sukhdev & PW-11 Sundru Ram have been turned hostile and not supported prosecution. 15. PW-12 is the patwari who prepare the spot map Ex.P/18 and prepared panchanam Ex.P/19. He also prepared another spot map Ex.P/20. 16. PW-16 is Naib Tehsildar, who prepared the inquest of the dead body in presence of the witnesses and proved the inquest Ex.P/3. 17. PW-13 Satish Yadav, PW-14 Yogesh Jain, PW-15 Jaikarn Sori, PW-17 Awadh Ram Gadpale & PW-18 Akash Markam are the police persons who being the part of the investigation and proved the process of investigation which they have done. 18. In the matter of Baljinder Kaur Vs. State of Punjab reported in (2015) 2 SCC 629, the Hon’ble Supreme Court has held in para 18 which reads as under:- 11 “18. The above decisions of this Court laid down the proximity test i.e. there must be material to show that “soon before her death” the woman was subjected to cruelty or harassment “for or in connection with dowry”. The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim. “soon before death” is a relative term and no straitjacket formula can be laid down fixing any time-limit. The determination of the period which can come within the term “soon before death” is left to be determined by the courts depending upon the facts and circumstances of each case.” 19. From the evidence of PW-1 Ramji Ram Parpachi PW-2 Meenabati & PW-7 brother of the deceased. It appears that the witnesses have made a general and omnibus allegation against the appellant No.1 Smt. Sukaro Bai and Appellant No.3 Dalluram Kawde who is the mother-in-law and father-in-law of the deceased and no specific instances of allegation have been made against them whereas from the evidence of these witnesses and also from the evidence of PW-6 there is specific allegation against the appellant No.2 Gokul Ram Kawade that he harassed the deceased for demand of dowry and has committed cruelty with her. He used to assault her which has been witnessed by PW-6 Ushabai Netam and PW-2 Meenabati. The defence themselves have given the suggestion to the PW-2, who is the mother of the deceased that it is the appellant Gokul Ram Kawade, alone who harassed the deceased for demand of dowry and other appellants are not harassed her. Although the PW-2 have denied the suggestion given by the appellant and stated that all the accused persons have harassed the deceased for demand of dowry. In view of the other evidences of PW-6 and PW-7, it is clear that the 12 appellant Gokul Ram Kawade alone has harassed the deceased for demand of dowry and used to beat her and committed cruelty with her which culminated into the unfortunate incident of her death due to poisoning. 20. Although from the evidence of present case it appears that the appellant No.2 Gokul Ram Kawade has harassed the deceased and committed cruelty for demand of dowry and the deceased has died within 7 years of her marriage in unnatural circumstance but there is no sufficient evidence against the appellant No.1 Sukaro Bai and appellant No. 3 Dallu Ram Kawade that they also have harassed the deceased and committed cruelty with her for demand of dowry and therefore, appellant No.1 and appellant No. 3 are entitle for benefit of doubt. 21. In the matter of Shindo @ Sawinder Kaur Vs. State of Punjab reported in 2011 11 SCC 517, the Hon’ble Supreme Court has held that though the death of the deceased was unnatural which occurred within 7 years of her marriage, but the ingredients of demand of dowry made soon before her death was not proved. Therefore the presumption under Section 113B of Indian Evidence Act, cannot be drawn against the appellants No. 1 & 3. In para 9 of its judgment, the Hon’ble Supreme Court has held as under:- “9. We also notice that the High Court was dealing with an appeal against acquittal. Undoubtedly, in a case of dowry death under Section 304-B, a presumption of Section 113-B, Evidence Act, does arise against the accused. However, the presumption is relatable to the fact that the prosecution must first spell out the ingredients of the offence and then only can a presumption arise. In the present case we find that the 13 death was an unnatural one and had taken place within seven years of the marriage but the third ingredient that any demand for dowry had been made soon before the death has not been proved. In this view of the matter the presumption under Section 113-B of the Evidence Act cannot be raised.” 22. From the aforesaid evidence this Court of the opinion that there is lack of cogent and clinching evidence on record against the appellant No.1 Smt. Sukaro Bai and appellant No.3 Dullu Ram Kawade to hold that they have also harassed the deceased soon before her death and she was subjected to cruelty for demand dowry as there is no proximate link between death of the deceased and act of appellants No. 1 & 3. Therefore, by giving benefit of doubt to them the appellant No.1 Smt. Sukaro Bai and appellant No.3 Dullu Ram Kawade are acquitted from the alleged offences. The impugned judgment of conviction and sentence with respect to the appellants No. 1 & 3 are hereby set aside and the appeals filed by them are allowed. 23. However, there is sufficient evidence against the appellant No.2 that he harassed the deceased for demand of dowry and subjected to cruelty with the deceased who died within 7 years of marriage and therefore, there is ample evidence against him to convict him and sentenced him for the alleged offence. Therefore, the appeal on behalf of appellant No.2 Gokul Ram Dawade is hereby dismissed. 24. The appellants No. 1 & 3 are reported to on bail. Therefore the bail bond shall continue for further period of 6 months as provided under Section 481 of B.N.S.S. 2023. 14 25. The appellant Gokul Ram Kawade are reported to be in jail since 24.02.2019, he shall serve the entire jail sentence awarded to him by the learned trial Court. 26. With the aforesaid conclusion, the appeal filed by the appellants No.1 & 3 are allowed and appeal filed by the appellant No.2 Gokul Ram Kawade is dismissed. 27. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE Vaibhav