Allowed

Ajay Kumar and Another v. State of Chhattisgarh

Chhattisgarh HC8 Aug 2023CRA/870/2004

Case brief

AI extract

What is this about?

The High Court allowed the appeal and acquitted the appellants. Rejecting the prosecution's evidence as unreliable and unsupported by independent witnesses, the court held that cruelty under Section 498-A IPC was not proved beyond reasonable doubt, granting acquittal and return of fine.

What did the court decide?

Conviction and sentence under Section 498-A IPC set aside; appellants acquitted; bail bonds remain in force for six months under Section 437-A Cr.P.C.

Ajay Kumar and Another Vs State of Chhattisgarh — Dowry and Cruelty | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Judgment Reserved on : 26.07.2023

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Judgment Delivered on : 08.08.2023

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CRA No. 870 of 2004

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Ajay Kumar S/o Pratap Singh, aged 33 years,

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Bilasiya Bai, W/o Pratap Singh, aged 48 years,

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Both residents of village Saloni, P.S. Khairagarh, Distt. Rajnandgaon (C.G.).

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---- Appellants

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Versus

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State of Chhattisgarh

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---- Respondent

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For Appellant No. 1 : Mr. M.P.S. Bhatia, Advocate. For Appellant No. 2 : Mr. Avinash Chand Sahu, Advocate. For Respondent/State : Mr. Aman Kesharwani, Panel Lawyer.

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Hon'ble Shri Sanjay Kumar Jaiswal, Judge

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CAV Judgment

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1. The present appeal arises out of the impugned judgment of conviction and order of sentence dated 01.10.2004 passed by the learned Sessions Judge, Durg, District Durg (C.G.), in Sessions Trial No. 296 of 2003 whereby, the learned Sessions Judge, convicted the appellants and sentenced them as under : -

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Conviction	:	Sentence
Under Section 498-A of Indian Penal Code.	:	Rigorous imprisonment for 1 year and fine of Rs.200/-, in default of payment of fine amount, additional rigorous imprisonment for 3 months to each of them.

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2. Case of the prosecution, in brief, is that deceased, namely, Anusuiya Bai was married to appellant No.1- Ajay. After marriage, appellants used to assault Anusuiya Bai on account of demand of dowry and doubted on her character. On the date of incident, appellant No.1Ajay and his mother, i.e. appellant No.2- Bilasiya Bai assaulted Anusuiya Bai, on account of which, she committed suicide on 09.06.2003. The Station In-charge, Supela, District Durg received an information through telephone from Railway Police Station, Durg that an unknown woman died after being cut by a train on down rail-line. It was found that appellants frequently assaulted Anusuiya Bai, due to which, she committed suicide within 7 years of her marriage. After completion of investigation, charge-sheet was filed before the Court of Chief Judicial Magistrate, Durg, where three accused persons were found guilty for the offence punishable under Sections 306, 498-A/34 of Indian Penal Code, 1860 (for short ‘IPC’) and Sections 3 and 4 of Dowry Prohibition Act, 1961 (for short ‘Act of 1961’).

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3. In order to establish the guilt of appellants, prosecution examined as may as 10 witnesses. The statement of appellants were recorded under Section 313 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’), in which they denied the charges levelled against them, pleaded their innocence and false implication in the case. In defence, appellants were examined two witness.

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4. After hearing both the parties by trial Court, on the basis of evidence available on record, co-accused Vijay Singh (brother-in-law of deceased) was acquitted for the offences punishable under Sections

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306 & 498-A of IPC and Section 4 of the Act of 1961. Similarly, appellants, who are husband and mother-in-law of deceased respectively, were acquitted for the offence punishable under Section 306 of IPC and Section 4 of the Act of 1961. Being aggrieved with the conviction and sentence under Section 498-A of IPC, present appeal has been preferred.

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5. Learned counsel for the appellants submits that only brothers and sisters of deceased have spoken of harassment, which has no basis. It is contended that neither any report has been lodged regarding doubt upon her character or any harassment on account of demand of dowry nor any meeting has been held in Samaj Panchayat. All the witnesses are interested witnesses. Pancharam (PW-4) driver of deceased's brother Ishwari, has not made any statement of harassment against the appellants. In alleged suicide note (Ex.D/3) written by deceased herself, it is mentioned that nobody has blamed for her death. The defence witnesses have not made any statement regarding cruelty. The conviction of appellants by the trial court is based on presumption and there is no clear or reliable evidence against them regarding cruelty upon deceased. The finding of trial Court in convicting and sentencing the appellants is not sustainable in the eyes of law. It is further contended that prosecution has failed to prove its case beyond reasonable doubt, as such, the appeal be allowed and the appellants be acquitted of the charges framed against them.

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6. On the other hand, learned Panel Lawyer for the respondent/State

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supported the impugned judgment of conviction and order of sentence and submits that prosecution has proved its case beyond reasonable doubt and learned trial Court after considering all incriminating material and circumstances available against the appellants, rightly convicted and sentenced them for the offence, they have charged. Hence, instant appeal is bereft of merits and liable to be dismissed looking to the commission of offence done by appellants.

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7. I have heard learned counsel appearing for both the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection.

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8. Perusal of the entire evidence would go to show that death of Anusuiya Bai had occurred due to cut by a train on 09.06.2003, which is stated to be a suicide. There is no definite evidence that in which year she was married to appellant Ajay. Ishwari (PW-2), brother of deceased has stated that they were married 8-9 years before the incident and Punia (PW-3), sister of deceased has stated that they were married 10 years before the incident. Thus, there is no such evidence that Anusuiya Bai died within 7 years of marriage.

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9. Now, it has to be seen whether in view of evidence presented, conviction of the appellants under Section 498-A of IPC is justified or not ?

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10. The witnesses produced by prosecution to prove cruelty and torture

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are immediate relatives of deceased. Lalita Bai (PW-1) and Punia (PW-3) are her sisters as well as Ishwari (PW-2) and Bhukan (PW-6) are brothers of deceased. It would be appropriate to consider the statement of these witnesses regarding harassment and thereafter, statement of Panchram (PW-4), driver of deceased's brother Ishwari will be considered.

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11. Deceased's sister Lalita (PW-1) has stated in her evidence that Anusuiya told to her that appellant Ajay used to assault her sister Anusuiya on account of demand of dowry and doubted upon her character. She further stated that Anusuiya’s matrimonial house is stated to be 5 kilometers away from her house. She deposed that appellant has never demanded money or assaulted Anusuiya in from of her. In cross-examination, she admitted that she never told anyone other than the police about demand of money and assault. It is clear from the evidence that only after the death of Anusuiya, family members of deceased started talking about assault on account of demanding of money and prior to her death, neither any report has been lodged to the police nor any Panchayat meeting convened or told to any member of village.

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12. Punia (PW-3), second sister of deceased, also stated in her evidence that when she stayed at Anusuiya's in-laws house for 8 days, Anusuiya was beaten by her mother-in-law and her husband and brother-in-law was quarreled with her. In cross- examination, she admitted that she had not advised Anusuiya to lodge report in the police station about the fight and quarrel. She also admitted that there

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was a family dispute, which usually happened in all houses. She also admitted that there is no dearth of food in the house of appellants.

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13. Ishwari (PW-2), brother of Anusuiya, has stated in his evidence that Anusuiya told to him that there was frequent quarrel in between her and mother-in-law and she had come after quarreling with her mother-in-law. She did not tell the reason for quarrel, rather she stated that quarrel was happening just like noise of utensils in house. He further stated that Anusuiya demanded Rs.5,000/- to get a ring for her husband. He has not stated that appellant Ajay himself demanded any money from him. In cross- examination, he stated that he did not mention the demand of money for ring in his police statement, but in Court statement, he has stated that Gopal (villagers) had come and told that there was a quarrel between the appellant Ajay and Anusuiya. Thereafter, villagers have gathered and he went to Anusaiya's in-laws house. But in cross- examination, he stated that such thing has not been mentioned in his police statement. Hence, this witness has deviated from police statement and has made exaggerated statements, which cannot be believed.

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14. Bhukan (PW-6), second brother of deceased has stated many things in his evidence regarding cruelty. He has stated that appellant Ajay has suspected upon character of his sister. Money was demanded by the appellants and he gave Rs.15,000/- to Anusuiya by mortgaging his truck. Before Diwali, when the truck was sold, he again gave Rs.20,000/- was given to Bilasiya (mother-in-law of deceased). After the death of Anusuiya, villagers told that Anusuiya died due to fight

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between her and appellants. Then, he attended the cremation, where appellant Ajay again demanded Rs.10,000/-. In cross-examination, he admitted that he never advised Anusuiya to lodge any report to police station. He further admitted that he himself never made any report to the police even after cremation of Anusuiya. He also admitted that appellant Ajay has sufficient income.

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15. After considering the evidence of brothers and sisters of deceased Anusuiya, now I consider the evidence of Panchram (PW-4), who stated in his evidence that he once went to Anusuiya's house on tractor of Ishwari, at that time, some laboureres were accompanied him. There was a quarrel going on between Anusuiya and her motherin-law, both were abusing each other. He did not know the reason of quarrel. The quarrel was the same as happens in all houses. Thus, according to Pancharam, it has not been said to have seen any demand of money or incident related to fight, but it is said to have been a quarrel of same type as happens in common houses, in which, Anusuiya was also abusing. Thus, apart from family members of deceased, evidence of one of the prosecution witnesses, namely, Panchram (PW-4) do not support the case of prosecution that Anusuiya was subjected to cruelty in her in-laws' house.

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16. It has been stated that Anusuiya used to work in Anganwadi. Any person who worked with her in Anganwadi has not been examined by the prosecution, but examined one Savitri Bai (DW-1) as her coworker. No such witness has been examined by the prosecution who is a neighbor of the appellant, which can be called an independent

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witness. But in defence of appellants, Hemlal (DW-2) has been examined who stated that deceased Anusuiya is his maternal uncle's daughter. Thus, it is important to consider the statement of these defence witnesses.

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17. Hemlal (DW-2) has stated that Anusuiya being the daughter of his maternal uncle, his house is at a distance of 2-3 houses from the house of appellants. Anusuiya used to go to work at Anganwadi in the morning and came back around 12:00 - 01.00 PM. She never told him about any problem at her in-laws' house. As such, evidence of Hemlal (DW-2), who is stated to be brother of Anusuiya, as a neighbour, contradicted the fact of harassment.

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18. Savitri Bai (DW-1), who worked with Anusaiya in Anganwadi, has stated that Anusaiya never told her anything about harassment by the appellants. Expressing the recognition of Anusuiya's handwriting, she stated that alleged suicide note (Ex.D/3) seized from appellant Ajay vide seizure memo (Ex.P/4) to be in Anusuiya's handwriting, of which, ‘A to A’ have been signed by Anusuiya. According to which, Anusuiya has mentioned that there is no role of anyone in her suicide. To show the handwriting of Anusuiya, she has given handwriting of Anganwadi worker and helper admission form (Ex.D/1) and Porridge Register (Ex.D/2), the same cannot be rebutted. Thus, there is no mention of cruelty in alleged suicide note.

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19. Assistant Sub Inspector K. L. Das (PW-9) has seized the inland letter (Ex.D/1) vide Ex.P/4, which has been proved by Neelambar (PW.-8).

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According to defence, said inland letter was sent by one J.K. Verma of village Bhalukona in the name of Anusuiya to the address of village Saloni of appellant Ajay. With regard to the said letter, Assistant Sub Inspector K. L. Das (PW-9) has stated in cross- examination that appellant Ajay used to doubt upon character of Anusuiya due to said letter being in name of Anusuiya. The said letter has also seal stamp of post office, reading of which, go to show that writer had some relation with recipient of letter. Thus, through the said letter, defence has tried to make it clear that Anusuiya was having love affair with someone else, who wrote letter to Anusuiya.

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20. Considering the evidence presented by the parties, as above, it is clear that natural and independent witness from co-worker of any Anganwadi or neighborhood of appellant has not confirmed the fact that appellants have assaulted the deceased on account of demand of dowry. The statements made by brothers and sisters of deceased regarding assault or demand of money by appellant Ajay have come after the death of Anusuiya. Before her death, no complaint or report has ever been lodged in the society or the police. Even evidence of Panchram (PW-4) does not prove that any cruelty has been done with Anusuiya in her in-laws house. Even after the death, none of the family members of deceased have voluntarily gone to police to lodge a report, but investigation has been done by police after investigating the crime. Keeping in view inland letter (Ex.D/1), it would be difficult to state with certainty that why Anusuiya had committed suicide.

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21. The defence witnesses i.e. Savitri Bai (DW-1), who worked with

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deceased Anusuiya and Hemlal (DW-2), her cousin have stated that there was never any complaint by deceased that appellants were harassing her. Hence, after the death of Anusuiya, statements made by her real brothers and sisters regarding cruelty as well as demand of money cannot be believed beyond doubt because all those things have been stated in general form. The exact date, time, place of occurrence and specific details of incident of any money demand and assault have not been presented. Therefore, allegations related to cruelty in the above form are not complete and clear, which can be established as ‘cruelty’ and on the basis of which, appellants can be convicted.

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22. For the foregoing reasons, conviction of the appellants by trial Court under Section 498-A of IPC is not based on clear, conclusive and reliable evidence. The prosecution has not proved its case beyond reasonable doubt against the appellants. The appellants are entitled to benefit of doubt. At this stage, judgment of trial court regarding conviction and sentence in question, is not maintainable.

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23. In the result, the appeal is allowed. The judgment of conviction and order of sentence is set aside. The appellants are acquitted of the charges framed against them under Section 498-A of IPC by giving benefit of doubt. The appellants have been stated to be on bail, they need not surrender before the trial Court. However, their bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A of Cr.P.C. If there is no need to appear in the superior court, they will be deemed free from bail

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bonds. If the appellants have deposited the imposed fine amount, the same shall be returned to them.

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24. Record of the trial Court be sent back along with a copy of this judgment forthwith for information and necessary compliance.

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Sd/-

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(Sanjay Kumar Jaiswal) Judge

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Yogesh

Ajay Kumar and Another v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Ajay Kumar and Another v. State of Chhattisgarh

Case brief

What is this about?

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