Partly allowed

Shivdayal Bhariya v. State Of Chhattisgarh

Chhattisgarh HC13 Jul 2023CRA/270/2015

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh reviewed a conviction for dowry death under Section 304-B IPC. Upholding the conviction based on proximate links between dowry harassment and suicide, the court reduced the life sentence to ten years rigorous imprisonment due to lack of specific justification for the original quantum.

What did the court decide?

Conviction affirmed; sentence reduced from life imprisonment to 10 years rigorous imprisonment.

Shivdayal Bhariya Vs State Of Chhattisgarh — Dowry and Cruelty | Chhattisgarh HC (2023)

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(Criminal Appeal No.270 of 2015)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 270 of 20 15

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Shivdayal Bhariya, Son of Late Shri Son Sai Bhariya, aged about 27 years, Resident of Powercity Ayodhyapuri, Police Station Darri, District Korba, (Chhattisgarh)

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---- Appellant

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Versus

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The State of Chhattisgarh, through: Police Station Darri, District Korba (Chhattisgarh)

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---- Respondent

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For Appellant : Mr. Qamrul Aziz, Advocate For Respondent-State : Mr. Sameer Oraon, Govt. Adv.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Radhakishan Agrawal

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Judgment on Board (13.07.2023)

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Sanjay K. Agrawal, J

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(1) This criminal appeal preferred by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 29.01.2015, passed by the Court of Additional Sessions Judge, Katghora in Sessions Case No.71 of 2013 (State of Chhattisgarh vs. Shivdayal Bhariya), whereby he has been convicted for offence under Section 304-B of IPC and sentenced to undergo life imprisonment, however, acquitted from offence under

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(Criminal Appeal No.270 of 2015)

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Section 302 of IPC.

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(2) The case of the prosecution, in short, is that on 26.05.2013, at about 02:30 PM, at Powercity Ayodhyapuri, Sunita Bhariya (hereinafter referred to as the “deceased”) suffered unnatural death on account of harassment and cruelty meted-out by her husband (accused-appellant herein) for or in connection with demand of dowry and, thereby, the appellant is said to have committed offence under Section 304-B read with Section 302 of IPC in alternative.

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(3) It is further case of the prosecution that the marriage of the appellant was solemnized with deceased herein 4-5 years prior to the date of incident according to Hindu rites and tradition and out of said wedlock they were blessed with two children, namely, Sahil, aged about 03 years and Hans, aged about 03 months. After their marriage, since inception, the accused-appellant used to harass the deceased for or in connection with demand of dowry and further used to commit ‘marpeet’ with her, due to which she suffered deep mental and physical harassment and, therefore, on the date and time of the incident, the deceased alongwith her 03 months’ old infant, namely, Hans committed suicide by pouring kerosene oil and setting themselves ablaze. Thereafter, on the basis of report so lodged by the appellant-accused herein, the police registered

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marg. intimation (Ex.P/10 & P/11) and FIR (Ex.P/20) and wheels of investigation started running, in which, inquest proceedings were conducted vide Ex.P/06 and summons under Section 175 of CrPC were sent vide Ex.P/05 & P/07. ‘Nazari Naksha’ was prepared vide Ex.P/18. The dead-body of deceased and that of her son, namely, Hans were sent for postmortem examination vide Ex.P/12 & P/19 respectively and in the postmortem examination reports (Ex.P/23 & P/24), conducted by Dr. R.K. Divya (PW-13), it was opined that the cause of death of deceased and that of her son- Hans is shock due to extensive superficial to deep dry burn injuries 98% & 100% respectively. The appellant-accused was arrested vide Ex.P/16. From the place of incident, one white color plastic box in which smell of kerosene was coming and one matchbox is recovered/seized vide Ex.P/9 and further burned clothes of the deceased were also seized vide Ex.P/14. However, the aforesaid seized articles were not sent for FSL examination for the reasons best known to the prosecution. Thereafter statements of witnesses were recorded and after due investigation, the police filed charge-sheet against the appellant in the Court of Judicial Magistrate First Class, Katghora and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused

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abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(4) The prosecution in order to prove its case examined as many as 13 witnesses and exhibited 24 documents apart from Article-A (copy of bill) and Article-B (copy of cash memo), whereas the appellant-accused in support of his defence has only examined 01 witness (DW-01, Sukhdev Singh Bhariya) and exhibited 04 documents (Ex.D/01 to D/04).

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(5) The learned trial Court after appreciating the oral and documentary evidence available on record though acquitted the appellant for offence under Section 302 of IPC, but proceeded to convict him for offence under Section 304-B of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

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(6) Mr. Qamrul Aziz, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 304-B of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that there is no legally admissible evidence available on record to convict the appellant for offence under Section 304-B of IPC. Neither any

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incriminating article has been seized from the possession of the appellant nor there is any supporting medical or documentary evidence available on record to show that it is the appellant who committed dowry death of his wife (deceased). As such, the appellant deserves to be acquitted of the charge under Section 304-B of IPC. In alternative, learned counsel for the appellant submits that though the minimum punishment prescribed for committing offence under Section 304-B of IPC is 07 years, but the learned trial Court has imposed imprisonment for life on the appellant that too without assigning/recording any special/ specific reason and, as such, considering that the appellant is in jail since 15.07.2013 i.e. almost 10 years and at the time of incident he was only 27 years old and has not committed any jail offence post conviction, his sentence of life imprisonment be reduced to the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

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(7) 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 leading evidence of clinching nature. In view of statements of various prosecution witnesses especially Anil Kumar (PW-01), Ajay Kumar (PW-03) and Banshilal Bhariya

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(PW-02), who are brothers and father of the deceased coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 304-B of IPC. It is also submitted by learned State counsel that it is not the case where the sentence of the appellant for life imprisonment can be reduced to the period already undergone by him. Thus, the present appeal deserves to be dismissed.

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(8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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(9) In order to consider the plea, raised at the Bar it would be appropriate to extract Section 304-B of IPC, which relates to dowry death and reads thus:-

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“ 304-B. 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, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

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Explanation.-For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

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(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be

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less than seven years but which may extend to imprisonment for life.”

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The above provision was inserted by Act 43 of 1986 and came into force w.e.f. 19.11.1986.

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(10) In order to convict an accused for the offence punishable under Section 304-B of IPC, the following essentials must be satisfied-

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(a) The death of a women should be caused by burn or bodily injury or otherwise than under normal circumstances.

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(b) Such death should have occurred within seven years of the marriage.

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(c) Soon before the death of deceased, she must have been subjected to cruelty or harassment by her Husband or any relative of her Husband.

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(d) Such cruelty or harassment should be for or in connection with demand for dowry.

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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.

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(11) Section 113-B of the Indian Evidence Act, 1872 speaks about presumption as to dowry death, which reads as under:-

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"113-B. 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 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.

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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)."

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The aforesaid provision shows that if the women has been subjected to cruelty as defined in Section 498-A IPC, the court may presume that such person has caused dowry death. Section 2 of the Dowry Prohibition Act, 1961 provides as under:-

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“ 2. Definition of "dowry". In this Act," dowry" means any property or valuable security given or agreed to be given either directly or indirectly-

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a. by one party to a marriage to the other party to the marriage; or

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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."

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(12) To attract the provisions of Section 304-B of 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

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cruelty or harassment "for, or in connection with the demand for dowry". The expression "soon before her death" used in Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test.

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(13) As regards the principles concerning the above-referred provisions this Court wishes to refer to the decisions reported in K. Prema S. Rao v. Yadla Srinivasa Rao1 , Kaliyaperumal v. State of T.N.2 , Devi Lal v. State of Rajasthan3 and Ashok 4 . Kumar v. State of Haryana

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(14) In K. Prema S. Rao (supra) it has been held as under:-

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“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.”

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(15) In Kaliyaperumal (supra) relevant portion reads as

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under:-

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“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

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1 (2003) 1 SCC 217

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2 (2004) 9 SCC 157

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3 (2007) 14 SCC 176

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4 (2010) 12 SCC 350

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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 304B 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 113B 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 or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and

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has become stale enough not to disturb the mental equilibrium of the women concerned, it would be of no consequence.”

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(16) In Devi Lal (supra) the ingredients of the provisions of Section 304-B as laid down in Harjit Singh v. State of Punjab5 and Ram Badan Sharma v. State of Bihar6 have been

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reiterated as under:-

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“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 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.”

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(17) In Ashok Kumar (supra) it has been held by the Apex Court as under:-

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“19. We have already referred to the provisions of Section 304-B of the Code and the most significant expression used in the section is 'soon before her death'. In our view, the expression 'soon before her death' cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in

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5 (2006) 1 SCC 463

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6 (2006) 10 SCC 115

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common parlance. These are the provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme of the Act. Further, the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other.”

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(18) Similar view was expressed by the Apex Court in Yashoda

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v. State of M.P.7 , where it is stated that determination of the period would depend on the facts and circumstances of a given case. However, the expression would normally imply that there has to be reasonable time gap between the cruelty inflicted and the death in question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this section. However, there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient, whereafter, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not

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7 (2004) 3 SCC 98

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strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of a given case.

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(19) In the matter of Appasaheb and another v. State of Maharashtra8 it has been held by the Supreme Court as

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under:-

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“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.

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Section 2 of the Dowry Prohibition Act reads as under:

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“ 2. Definition of ‘dowry’ .-

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In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly.

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(a) by one party to a marriage to the other party to the marriage; or

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(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

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8 (2007) 9 SCC 721

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Law (Shariat) applies.

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In view of the aforesaid definition of the word “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.”

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(20) The word "soon before her death", no definite period has been prescribed and the expression "soon before her death" has

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not been defined either in IPC or Evidence Act.

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(21) The Supreme Court in case of Mustafa Shahadal Shaikh

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v. State of Maharashtra9 while considering the word "soon before her death", it has been held that term of the period which can come within the term "soon before her death" is to be determined by the courts, depending upon the facts and circumstances of each case and it would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question and there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. It has been further held that if the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.

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(22) Keeping the above-mentioned principles in mind, we shall now proceed to consider the evidence led by the prosecution in the instant case. From the perusal of the prosecution witnesses, namely, Anil Kumar Bhariya (PW-01), Ajay Kumar Bhariya (PW-03) and Banshilal Bhariya (PW-02), who are bothers and father of the deceased respectively, it is quite established that the appellant used to harass his wife

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9 2012 (11) SCC 397

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(deceased) for or in connection with demand of dowry. All three aforesaid witnesses were subjected to some length of crossexamination, but nothing could be extracted from them to hold that they are telling lie before the Court in order to falsely implicate the appellant. As such, the finding recorded by the learned trial Court that the deceased died on account of harassment made by the appellant for or in connection with demand of dowry is clearly established. Thus, all the four ingredients contemplated under Section 304-B of IPC is quite established in the present case, as death of the deceased has occurred within 4-5 years of her marriage and the death of the deceased was not occurred in normal circumstances, as she died unnatural death due to burn injuries and death of the deceased was caused on account of harassment and cruelty exerted by her husband (appellant herein) soon before her death for or in connection with demand of dowry. Hence, we are of the considered opinion that the learned trial Court is absolutely justified in convicting the appellant herein for offence under Section 304-B of IPC on the basis of correct findings of facts, which are based on evidence available on record and same are neither perverse nor contrary to the record. We hereby affirm the said findings.

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(23) Now, the next question would be whether the sentence of

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life imprisonment imposed by the learned trial Court on the appellant-accused for having committed offence under Section 304-B of IPC is justified or same is liable to be reduced to the period already undergone by the appellant, as contended by learned counsel for the appellant ?

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(24) Sub-section (2) of Section 304-B of IPC provides that whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than 07 years but which may extend to imprisonment for life and in the instant case the learned trial Court has imposed imprisonment for life on the appellant that too without recording any special/ specific reason. Thus, considering that the learned trial Court failed to assign any special/specific reason for imposing sentence of life imprisonment on the appellant for committing offence under Section 304-B of IPC and that the appellant was only 27 years old at the time when incident took place and he has not been found involved in committing jail offence post conviction and the appellant is in jail since 15.07.2013, we deem it appropriate to reduce the sentence of life imprisonment imposed by the learned trial Court on the appellant to 10 years’ rigorous imprisonment for committing offence under Section 304-B of IPC.

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(25) This criminal appeal is party allowed to the extent

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indicated herein-above.

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(26) Let a certified copy of this order alongwith the 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.

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Sd/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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s@if

Shivdayal Bhariya v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Shivdayal Bhariya v. State Of Chhattisgarh

Case brief

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