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2014 Supreme(Chh) 361
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Ramchandra Goyal and Ors. - Appellants
Vs.
State of M.P. - Respondent
Criminal Appeal No. 369 of 2000
Decided On: 11.11.2014
For Appellant/Petitioner/Plaintiff:Surendra Singh, Sr. Advocate, Jagar Sher Singh and Neeraj Mehta, Advocates
For Respondents/Defendant:P.K. Bhaduri, Govt. Advocate
Headnote:
Indian Penal Code - Sections 304-B and 306 – Criminal Procedure Code - Section 313 - Judge has convicted trial court - demand of dowry - clean acquittal from the charges leveled against them - defence of appellants are that they neither made any demand of dowry nor they treated deceased Sulochana cruelty. It is specific case of the defence that Sulochana was suffering from severe abdominal pain, and for which she was treated at Ambikapur, Bilaspur and Mumbai and immediately after giving birth to a male child, due to acute abdominal pain she committed suicide and a false case has been set up against them as they refused to handover male child born to the deceased in December, 1994, as well as their refusal to return gifts that her parents and relative gave to the deceased at the time of marriage which is apparent from the fact that date of alleged incident is 12.10.1995, whereas F.I.R. was made on 13.10.1995 at 12 noon after consultation and deliberation - In a statement recorded under Section 313 Cr.P.C. the appellants made statements that they never harassed the deceased Sulochana by demanding dowry at any point of time and the deceased was suffering from acute abdominal pain for which she was treated at Ambikapur, Bilaspur and Mumbai and after giving birth of male child she committed suicide by hanging herself as her abdominal pain became unbearable – Held, Not only this, the prosecution has examined neighbour of deceased Sulochana namely Lori Bai (PW-8), Kavilas (PW-10) and Krishnadhar (PW-11). These three independent witnesses did not state anything regarding demand of dowry by the appellants or they treated deceased with cruelty. Lori Bai (PW-8) is the neighbour of deceased and she was known to the deceased Sulochana, at the instant of prosecution, she had clearly deposed that deceased Sulochana was suffering from stomach ache for which she was treated at various hospitals. Kavilas (PW-10) milk vendor who also used to supply milk to the house of deceased, has clearly stated that she was suffering from stomach pain. Krishnadhar (PW-11) has also made the similar statement. These three independent witnesses have neither been declared hostile nor their evidence was challenged by way of re-examination as required under Section 138 of the Evidence Act, in absence of which, their statements become binding on prosecution. In a decision passed in Mukhtiar Ahmed Ansari Vs. State (Union Territory of Delhi) 2005 (5) SCC 258 their Lordships of Supreme Court held as under - A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan, JT (2000) 7 SC 549. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor and it was binding on the prosecution - Initially the burden of proof of the fact that deceased-was subjected to cruelty of demand of dowry is on the prosecution and when such burden is discharged by the prosecution, presumption under Section 113(b) of the Evidence Act shall be drawn regarding dowry death and if the prosecution fails to prove cruelty for demand of dowry beyond reasonable doubt under Section 113(b) of Evidence Act, presumption would not be attracted – Order accordingly
Sanjay K. Agrawal, J.
1. This appeal by five appellants/accused namely Ramchandra Goyal (A1), Ajay Kumar (A2), Dinesh Kumar (A3), Mukesh Kumar (A4) and Smt. Vimla Devi (A5) is directed against the judgment of conviction recorded by the First Additional Sessions Judge, Ambikapur, in S.T. No. 99/96 whereby the Sessions Judge has convicted the appellants for commission of offence punishable under Sections 304-B and 306 of Indian Penal Code (for short, IPC) and sentenced each of the appellants to undergo R.I. for 10 years U/s. 304-B and R. 1. for 7 years U/s. 306 IPC and further directed that both the sentences shall run concurrently. Facts of the case, giving rise to this appeal are as under:--
1.1. That, Sulochana (deceased) was married with appellant No. 2/Ajay Kumar on 20.02.1994. Shortly after the marriage, Sulochana complained to her parents namely Phpolchand (PW-1-father), Parwati (PW-6-mother), Rajkumar (PW-4-brother) and Madan Lal (PW-5) that the appellants were demanding dowry and subjecting her to cruelty in connection with said demand. The complaint was made on few occasions whenever Sulochana visited her parental home and ultimately committed suicide by hanging herself approximately at 8 a.m. on 12.10.1995 inside her matrimonial house (house of appellants).
1.2. Information regarding suicide committed by Sulochana was immediately given by one Baburam to her parents. Merg intimation (Ex. P/13) was lodged and investigation was taken up by P.N. UPadhyay (PW-7) Station House Officer, P.S. Ambikapur, and later on by I.L. Uikey (PW-9) SDOP. Postmortem was conducted by Dr. N.K. Jain (PW-3) and postmortem report is Ex. P/7.
1.3. It is further case of the prosecution that on evening of 12.10.1995 Phoolchand (PW-1) submitted a written report (Ex. P/2) on the basis of which F.I.R. (Ex. P/3) came to be recorded on 13.10.1995 at 12 noon, and thereafter, the appellants were charge-sheeted for commission of offences punishable under Sections 304-B and 306 IPC.
1.4. In order to bring home the offences, the prosecution examined the following witnesses--
• (PW-1) Phoolchand Goyal, father of deceased Sulochana.
• (PW-2) S.P. Shukla, Police witness.
• (PW-3) Dr. M.K. Jain, Doctor, who conducted postmortem.
• (PW-4) Rajkumar, brother of deceased Sulochana.
• (PW-5) Madanlal, brother of deceased Sulochana.
• (PW-6) Parwati, mother of deceased Sulochana.
• (PW-7) N.P. Upadhyay, SHO, Police Station Ambikapur.
• (PW-8) Lori Bai, neighbour of deceased.
• (PW-9) I.L. Uikey, A.S.P. Posted as SDOP at Ambikapur on the date of alleged incident.
• (PW-10) Kavilas neighbour and milk vendor of appellants, and
• (PW-11) Krishnadhar, neighbour of appellants.
1.5. In order to bring home the offences, the prosecution brought eleven documents (Exhibit P/1 to Exhibit P/11) including Exhibit P/2 i.e. written report of Phoolchand (PW-1), Exhibit P/3 F.I.R. and Exhibit P/7 postmortem report.
1.6. The defence of appellants are that they neither made any demand of dowry nor they treated deceased Sulochana cruelty. It is specific case of the defence that Sulochana was suffering from severe abdominal pain, and for which she was treated at Ambikapur, Bilaspur and Mumbai and immediately after giving birth to a male child, due to acute abdominal pain she committed suicide and a false case has been set up against them as they refused to handover male child born to the deceased in December, 1994, as well as their refusal to return gifts that her parents and relative gave to the deceased at the time of marriage which is apparent from the fact that date of alleged incident is 12.10.1995, whereas F.I.R. was made on 13.10.1995 at 12 noon after consultation and deliberation.
1.7. In a statement recorded under Section 313 Cr.P.C. the appellants made statements that they never harassed the deceased Sulochana by demanding dowry at any point of time and the deceased was suffering from acute abdominal pain for which she was treated at Ambikapur, Bilaspur and Mumbai and after giving birth o
