Allowed

Tejuram Rajwade v. State of Chhattisgarh

Chhattisgarh HC10 Jan 2023CRA/326/2011

Case brief

AI extract

What is this about?

A Criminal Appeal against conviction under Section 304-B IPC for dowry death. The High Court acquitted the appellant, holding that the prosecution failed to prove cruelty or harassment soon before death, as the alleged dowry demands were stale and remote in time.

What did the court decide?

Conviction and sentence set aside; appellant acquitted of charge under Section 304-B IPC; bail to remain in operation for 6 months.

Tejuram Rajwade Vs State of Chhattisgarh — Dowry and Cruelty | Chhattisgarh HC (2023)

¶1

¶2

Cr.A. No. 326 of 2011

¶3

NAFR

¶4

HIGH COURT OF CHHATTISGARH, BILASPUR

¶5

CRA No. 326 of 2011

¶6

Tejuram Rajwade, S/o Barelal Rajwade, Aged about 28 years, R/o Sanwala, Thana – Khadgawan, District Korea (C.G.)

¶7

---- Appellant

¶8

Versus

¶9

State Of Chhattisgarh, Through – P.S. Kadgawan, District Korea (C.G.)

¶10

---- Respondent

¶11

For Appellant : Mr. Ravindra Agrawal, Advocate. For Respondent : Mr. Afroz Khan, Panel Lawyer.

¶12

Division Bench: Hon’ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Rakesh Mohan Pandey Judgment on Board on 10-01-2023

¶13

Per Rakesh Mohan Pandey. J.

¶14

1. This Criminal Appeal under Section 374(2) of the Cr.P.C. has been filed against the impugned judgment of conviction and order of sentence dated 29-03-2011 passed in Session Trial No. 27/2010 by the learned Third Additional Sessions Judge (Fast Track Court), Manendragarh, District Korea (C.G.) whereby the appellant has been convicted for commission of offence punishable under Section 304-B of the I.P.C. and sentenced to undergo life imprisonment and to pay fine of Rs.1000/-, in default of payment of fine additional rigorous imprisonment for three months.

¶15

¶16

Cr.A. No. 326 of 2011

¶17

2. Four accused persons were tried before the learned trial Court in this case, namely, (i) appellant Tejuram Rajwade - husband of the deceased, (ii) Barelal Rajwade - father-in-law of the deceased, (iii) Shyamlal Rajwade – uncle of the appellant (iv) Shyam Bahadur – uncle of the appellant. The learned trial Court convicted and sentenced the present appellant as aforementioned and acquitted the other accused persons.

¶18

3. As per the prosecution story, deceased Mamta was married to the appellant in the year 2005. On 27-08-2009 she had gone to Podi market along with her mother-in-law Krishna Bai and brother-in-law Subhash. They returned back at about 05:00 p.m. At about 07:00 p.m. it was found that deceased Mamta is missing. The family members of the appellant made search to the nearby places, but they could not find the deceased. On the next day, her dead body was found in a well. On 28-08-2009 at about 11:30 Hours merg intimation (Ex.-P/7) was given by Shyamlal Rajwade to the effect that deceased Mamta was missing and her dead body has been found in the well at about 10:00 a.m. on 28-08-2009. On the basis of merg intimation, FIR {Ex.-P/7(A)} was registered on 21-10-2009 by N.Sai (PW-16). Naksha Panchayatnama was prepared vide Ex.P/4 on 28-08-2009 and thereafter, the dead body was sent for postmortem vide Ex.-P/9. The postmortem was conducted by Doctor R.P. Singh (PW-14) vide Ex.-P/9(A) and according to this witness cause of death is asphyxia as a result of drowning. Site plan was prepared vide Ex.-P/10 at the instance of Mombati (PW-

¶19

¶20

Cr.A. No. 326 of 2011

¶21

15). The statement of witnesses was recorded and after completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Chirmiri, District Korea, from where the matter was committed to the Sessions Court for deciding the case on merits.

¶22

4. The learned trial Court framed charge for offence punishable under Section 304-B of the IPC against the appellant and other acquitted persons. The appellant herein abjured the guilt and pleaded nonguilty. In order to bring home the offence, the prosecution examined as many as 16 witnesses and brought 19 documents into record, whereas, the defence examined 02 witnesses and exhibited documents D1 to D19.

¶23

5. The learned trial Court after appreciating the entire evidence available on record, by the impugned judgment, convicted and sentenced the appellant as mentioned in opening paragraph of this judgment.

¶24

6. Learned counsel for the appellant would submit that the appellant has falsely been implicated in this case and on the same set of facts and evidence three family members have already been acquitted by the learned trial Court. He would further submit that ingredients of Section 304-B of the IPC are missing. The deceased was not subjected to cruelty or harassment by the appellant in connection with demand of dowry. He would further submit that the stale incident of demand of dowry cannot be taken into account. He would also submit that there are general allegations against the

¶25

¶26

Cr.A. No. 326 of 2011

¶27

present appellant.

¶28

7. On the other hand, learned counsel for the State would submit that the prosecution has proved the ingredients of Section 304-B of the IPC against the present appellant. There was allegation of constant demand of dowry against the present appellant, even the appellant has demanded a room in under-construction house and Rs.50,000/which was not fulfilled and therefore, the deceased was subjected to cruelty she committed suicide by jumping in well. Learned counsel would further submit that as the deceased has died within 07 years of her marriage, her death was unnatural, therefore, presumption of Section 113-B of the Evidence Act would attract against the appellant which has not been rebutted and thus, the learned trial Court has rightly convicted the present appellant. He submits that the appeal deserves to be dismissed.

¶29

8. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the records with utmost circumspection.

¶30

9. Before considering the prosecution case as well as the defence version, it is desirable to extract the relevant provisions of Section 304-B of the IPC which relates to dowry death:-

¶31

“ 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

¶32

¶33

Cr.A. No. 326 of 2011

¶34

“dowry death”, and such husband or relative shall be deemed to have caused her death.

¶35

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

¶36

(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.”

¶37

The above provision was inserted by Act 43 of 1986 and came into

¶38

force w.e.f. 19.11.1986.

¶39

10. In order to convict an accused for the offence punishable under

¶40

Section 304-B IPC, the following essentials must be satisfied-

¶41

(i) the death of a woman should be caused by burns or bodily injury or otherwise than under “normal circumstance;

¶42

(ii) such a death should have occurred within seven years of her marriage;

¶43

(iii) she must have been subjected to cruelty or harassment by her husband or any relative of her husband;

¶44

(iv) such cruelty or harassment should be for or in connection with demand of dowry; and

¶45

(v) such cruelty or harassment is shown to have been meted out to the woman soon before her death.

¶46

Thus, if the aforesaid ingredients are established by the prosecution

¶47

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.

¶48

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

¶49

“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

¶50

¶51

Cr.A. No. 326 of 2011

¶52

for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

¶53

Explanation. – For the purposes of this section, “dowry death” shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).”

¶54

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

¶55

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

¶56

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

¶57

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 as 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.”

¶58

12. 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” such woman was subjected to cruelty or harassment “for, or in connection with the demand of 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

¶59

¶60

Cr.A. No. 326 of 2011

¶61

proximity test.

¶62

13. In the case of Rajinder Singh V. State of Punjab¹ , the Hon'ble Supreme Court while appreciating the words “soon before” occurring in Section 304-B IPC has held in para No.24 as under:-

¶63

“24. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word “soon” does not mean “immediate”. A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304-B would make it clear that the expression is a relative expression. Time-lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304-B.” (emphasis supplied)

¶64

14. In Hira Lal V. State (NCT of Delhi)² , the Hon'ble Supreme Court has held that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The Hon'ble Supreme Court has held in para 9 of that judgment as under:-

¶65

“9. 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 natural or accidental death so as to bring it within the purview of 'death occurring otherwise than in normal circumstances'. The expression “soon before” is very relevant where

¶66

1 (2015) 6 SCC 477

¶67

2 (2003) 8 SCC 80

¶68

¶69

Cr.A. No. 326 of 2011

¶70

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 by the prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket 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 or has received the goods knowing them to be stolen, unless he can account for their 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 has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.”

¶71

15. The Hon'ble Supreme Court in the matter of State of Madhya

¶72

Pradesh V. Jogendra and another³ , while dealing with expression “soon before her death” has discussed several judgments and held in para 15 as under:

¶73

3 (2022) 5 SCC 401

¶74

¶75

Cr.A. No. 326 of 2011

¶76

“15. Now, coming to the second point urged by the learned counsel for the State that the High Court has overlooked the fact that Geeta Bai had been subjected to cruelty/harassment at the hands of the respondents soon before her death, which submission is strictly contested by the learned counsel for the respondents, we may note that the meaning of the expression “soon before her death” has been discussed threadbare in several judgments. In Surinder Singh v. State of Haryana, (2014) 4 SCC 129, while relying on the provisions of Section 113-B of the Evidence Act, 1872 (for short “the Evidence Act”) and Section 304-B IPC, where the words “ soon before her death ” find mention, the following pertinent observations have been made: (SCC pp. 137-39, paras 17-18)

¶77

“17. Thus, the words “soon before” appear in Section 113-B of the Evidence Act, 1872 and also in Section 304-B IPC. For presumptions contemplated under these sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words “soon before” is, therefore, important. The question is how “soon before” ? This would obviously depend on the facts and circumstances of each case . The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain, etched in her memory for a long time. Therefore, “soon before” is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept

¶78

¶79

Cr.A. No. 326 of 2011

¶80

in mind while examining each case of dowry death.

¶81

In this connection we may refer to the judgment of this Court in Kans Raj V. State of Punjab, (2000) 5 SCC 207 where this Court considered the term “soon before”. The relevant observations are as under: (SCC pp. 222-23, para 15)

¶82

'15. …. “Soon before” is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term “soon before” is not synonymous with the term “immediately before” and is opposite of the expression “soon after” as used and understood in Section 114, Illustration (a) of the Evidence Act . These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand of dowry is shown to have persisted, it shall be deemed to be “soon before death” if any other intervening circumstance showing the nonexistence such treatment is not brought on record, before such alleged treatment and the date of death . It does not, however, mean that such time can be stretched to any period. Proximate and live link

¶83

¶84

Cr.A. No. 326 of 2011

¶85

between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.

¶86

Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law .”(emphasis supplied)

¶87

16. Keeping these principles in mind, now we will consider the evidence laid down by the prosecution in the present case.

¶88

17. It is not in dispute that the appellant and the deceased were married in the year 2005 and there are two issues out of their wedlock. Krishna (PW-1) who is resident of the locality of parental house of the deceased, has stated that when she used to visit her house, she had informed her that there was demand of Rs.50,000/- from her husband, father-in-law and uncle-in-law. In cross-examination she has stated that the deceased had visited her house two or three times for massage. She has further stated that she did not get opportunity to visit matrimonial house of the deceased. She has also admitted in para 8 of her cross-examination that the parents of the deceased never informed her that there was any demand of dowry from the husband or his relatives.

¶89

¶90

Cr.A. No. 326 of 2011

¶91

18. Ramgopal Rajwade (PW-2) has stated that he is uncle of the deceased and he was never informed by his brother regarding any demand of dowry or Rs.50,000/-. He has further stated that father of the present appellant and his uncle are in Government job.

¶92

19. Kalika Prasad (PW-3) is father of the deceased who has stated that his daughter was subjected to cruelty for demand of dowry and this fact was narrated to him when his daughter visited his house on the occasion of Raksha Bandhan. In para 2 of cross-examination he has admitted that the appellant was prosecuting Pharmacy course and he was demanding his shop to open a pharmacy. He has further stated that there arose a dispute as the shop was not given to the appellant. He has further admitted that the appellant never made demand of any money. He has also admitted that both the son of the deceased had taken birth in the hospital after surgery and entire expenses were borne by in-laws of the deceased. He has further admitted in para 3 that his daughter never informed him that any demand of dowry was being made. In para 4 he has stated that after second surgery, the deceased was suffering severe pain in her abdomen and this fact was narrated by the deceased to her mother and according to her, the pain was unbearable and treatment was going on at Baikunthpur. In para 6 he has stated that the matter was enquired by the police and no allegation was made against the appellant or his relatives.

¶93

20. Shyam Sundar Rajwade (PW-4) is uncle of the deceased who has stated that there was demand of Rs.50,000/- and the deceased was

¶94

¶95

Cr.A. No. 326 of 2011

¶96

subjected to cruelty. He has further stated that such demand was made by the deceased before her father, mother and uncle. In para 5 he has stated that for the first time in the year 2007 he was informed about the demand of dowry by his niece (deceased). In para 8 he has admitted that the appellant had requested to provide a residence and a shop to open a medical store and there was dispute on this account. He has further stated that the appellant wanted to take possession of the property, but no report was lodged. In para 11 he has admitted that in his society demand of dowry is not prevalent. In para 13 he has again admitted that there was no demand of dowry at the time of marriage of the deceased.

¶97

21. Ramdayal Rajwade (PW-5) is grand-father of the deceased. This witness has stated that the present appellant had demanded Rs.50,000/- from him as dowry and same was refused. He has further stated that in the year 2009 on the occasion of Raksha Bandhan the deceased visited his house and requested to give Rs.50,000/-. He has further stated that the appellant was asking to provide a room in under construction building at Ramanujnagar. In cross-examination this witness has admitted that no complaint was made against the appellant or his relatives. In para 13 he has admitted that the relation between the appellant and him were strained as one room to open medical store was not provided to the appellant.

¶98

22. Smt. Premkali Rajwade (PW-12) is aunt of the deceased. She has stated that after two years of marriage Rs.50,000/- was demanded

¶99

¶100

Cr.A. No. 326 of 2011

¶101

by in-laws of the deceased and she was subjected to cruelty. She has further stated that in the last Raksha Bandhan the deceased had again asked to provide Rs.50,000/-. In para 12 of the crossexamination she has admitted the fact that no demand of dowry from the deceased was made by the appellant or his relatives and she was never informed by the deceased in this regard. In para 30 she has admitted that for two years from the day of making demand of dowry and till the death no report was lodged.

¶102

23. Doctor R.P. Singh (PW-14) has conducted the postmortem of deceased, who did not find any injury over entire body of the deceased. According to this witness cause of death was drowning.

¶103

24. Mombati (PW-15) is mother of the deceased who has stated that the deceased was residing peacefully for two years in her in-laws' house and after two years there was demand of Rs.50,000/- and one room in the house. In para 15 this witness has admitted that the demand of dowry was made three years prior to the date of the death.

¶104

25. From evidence of these witnesses, it appears that in the year 2005 the deceased was married to the appellant. Thereafter, she was residing in her matrimonial house happily. It comes out from the evidence that after two years there was demand of Rs.50,000/- and one room to open a medical store at Ramanujnagar. The shop was not provided to the appellant and there was dispute between the appellant and his in-laws. Father of the deceased has not made any allegation regarding demand of dowry against the present appellant.

¶105

¶106

Cr.A. No. 326 of 2011

¶107

The mother and the uncle of the deceased have stated that 2-3 years prior to death of the deceased there was demand of Rs.50,000/-.

¶108

26. The Hon'ble Supreme Court in the matter of Rajinder Singh V. State of Punjab (supra) and Kans Raj V. State of Punjab (supra) has held that there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. It is also held that the demand for dowry should not be stale or too remote in time but should be the continuing cause for the death of the married woman.

¶109

27. Now, coming to the issue with regard to presumption under Section 113-B of the Evidence Act. The words “shall presume” in Section 113-B of the Evidence Act, while it mandates that the Court is dutybound to proceed on the basis that the person has caused the death, the presumption is rebuttable and it is open to the accused to prove that the ingredients of Section 304-B IPC are not satisfied. In this regard the following statement of law contained in G.V. Siddaramesh V. State of Karnataka⁴ is produced herein :-

¶110

“26. Section 113-B of the Evidence Act raises a presumption against the accused and reads:

¶111

' 113-B. Presumption as to dowry death. –

¶112

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 had been subjected by such person to cruelty or harassment for, or in connection with,

¶113

4 (2010) 3 SCC 152

¶114

¶115

Cr.A. No. 326 of 2011

¶116

any demand for dowry, the Court shall presume that such person had caused the dowry death.

¶117

Explanation. – For the purposes of this section, “dowry death” shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).”

¶118

A reading of Section 113-B of the Evidence Act shows that there must be material to show that soon before the death of woman, such woman was subjected to cruelty or harassment for or in connection with demand of dowry, then only a presumption can be drawn that a person has committed the dowry death of a woman. It is then up to the appellant to discharge this presumption.”

¶119

28. In light of aforesaid discussion, law and facts of the case, this Court comes to a conclusion that soon before the death the deceased was not treated with cruelty or harassment for or in connection with demand of dowry. Therefore, this criminal appeal is allowed. Conviction and sentence recorded by the trial Court is hereby set aside. The appellant is acquitted of the charge under Section 304-B of the IPC. The appellant is reported to be on bail, he need not surrender, however, his bail bond shall remain in operation for a period of 6 months in view of provisions contained in Section 437-A of the Cr.P.C.

¶120

29. Accordingly, the criminal appeal is allowed.

¶121

Sd/Sd/-

¶122

(Sanjay K. Agrawal) (Rakesh Mohan Pandey) Judge Judge

¶123

Aadil

Tejuram Rajwade v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Tejuram Rajwade v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Damendra Kumar Gajendra @ Raju Vs State Of Chhattisgarh

Kasim Ali Mandal Urf Rahul Vs State of Chhattisgarh

Kajim Ali Vs State of Chhattisgarh

Tabrej Khan Vs State of Chhattisgarh

Chandrabhan Nag Vs State of Chhattisgarh

Dilchand Mahant And Ors. Vs State Of Chhattisgarh