Pawan Kumar @ Vicky and Ors. Vs State Of Chhattisgarh

1 - Pawan Kumar @ Vicky And Ors. S/o Ramashankar Sinha Aged About 28 Years R/o Village Tekari Gaya Bihar At Present R/o At Ravishankar Shukla Nagar, M.I.G. 2/2, Ps Kotwali Korba, Distt. Korba C.G. Civil And Rev. Distt. Korba C.G., Chhattisgarh

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2 - Ashish Kumar @ Chhote S/o Ramashankar Sinha Aged About 27 Years R/o Village Tekari Gaya Bihar At Present R/o At Ravishankar Shukla Nagar, M.I.G. 2/2, Ps Kotwali Korba, Distt. Korba C.G. Civil And Rev. Distt. Korba C.G. , District : Korba, Chhattisgarh

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3 - Smt. Champa Devi W/o Ramashankar Sinha Aged About 55 Years R/o Village Tekari Gaya Bihar At Present R/o At Ravishankar Shukla Nagar, M.I.G. 2/2, Ps Kotwali Korba, Distt. Korba C.G. Civil And Rev. Distt. Korba C.G. , District : Korba, Chhattisgarh

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--- Appellants

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versus

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State of Chhattisgarh Through Ps Kotwali, Outpost Manikpur, Distt. Korba C.G. , Chhattisgarh --- Respondent

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For Appellants : Mr. Vinay Dubey, Advocate For Respondent/State: Ms. Soumya Sharma, Panel Lawyer

And

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& ACQA No.68 of 2013

ACQA No. 68 of 2013

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Satyanarayan Prasad S/o Late Shri Prasidha Narayan Lal Aged About 48 Years R/o Ompur Rajgamar Colony Korba, Ps Balco Korba, Civil And Rev. Distt. Korba C.G. , Chhattisgarh

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--- Appellant

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Versus

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1 - State Of Chhattisgarh And Ors. Through Distt. Magistrate Korba, Distt. Korba C.G. , Chhattisgarh

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2 - Pawan Kumar @ Vicky S/o Shri Ramashanker Sinha Aged About 28 Years R/o Village - Tekari, Distt. - Gaya Bihar At Present R/o Ravishanker Shukla Nagar Mig 2/2 Korba, Ps Kotwali Korba Civil And Rev. Distt. Korba C.G. , District : Korba, Chhattisgarh

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3 - Ashish Kumar @ Chhote S/o Shri Ramashanker Sinha Aged About 27 Years R/o Village - Tekari, Distt. - Gaya Bihar At Present R/o Ravishanker Shukla Nagar Mig 2/2 Korba, Ps Kotwali Korba Civil And Rev. Distt. Korba C.G., District : Korba, Chhattisgarh

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4 - Nikhil Kumar S/o Shri Ramashanker Sinha Aged About 33 Years R/o Village - Tekari, Distt. - Gaya Bihar At Present R/o Ravishanker Shukla Nagar Mig 2/2 Korba, Ps Kotwali Korba Civil And Rev. Distt. Korba C.G., District : Korba, Chhattisgarh

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5 - Smt. Champa Devi W/o Shri Ramashanker Aged About 55 Years R/o Village - Tekari, Distt. - Gaya Bihar At Present R/o Ravishanker Shukla Nagar Mig 2/2 Korba, Ps Kotwali Korba Civil And Rev. Distt. Korba C.G., District : Korba, Chhattisgarh

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….. Respondents

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For Appellant : Mr. Sunil Sahu, Advocate.

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For Respondent/State: Ms. Soumya Sharma, Panel Lawyer

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge

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Judgment on Board

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Per Bibhu Datta Guru, Judge

12.09.2025

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& ACQA No.68 of 2013

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Since both the appeals arising out of same sessions trial, they are being considered and decided by this common judgment.

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CRA No.1076/2013

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This appeal filed by the appellants is directed against the judgment of conviction and sentence dated 08/10/2013 passed by the learned Additional Sessions Judge Korba, C.G. in S.T. No.108/2012, whereby the appellants have been sentence and convicted as under:-

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Conviction Under Section 304-B/34 of the IPC	: Sentence : Rigorous Imprisonment for 10 years and fine of Rs.5000/- with default stipulation.

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Facts of the case, in brief, is that A-1 is husband, A-2 is brother-inlaw and A-3 is mother-in-law of deceased-Monika Sinha. Complainant Satyanarayan Prasad PW-4 is the father of deceased. Marriage between the deceased was solemnized with A-1 on 10.02.2012. At the time of the marriage, complainant had given as much dowry as possible. However, after ten days of marriage, the deceased was physically and mentally tortured by the appellants. The appellants used to demand of Rs. 5.00 lacs and told her to bring from her father/complainant. On 14.10.2012, deceased told her father and informed him about the harassment regarding the demand of money. On 15.10.2012 at around 10

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& ACQA No.68 of 2013

a.m., Salamuddin PW-13, heard the sound of Monika falling from the terrace to the ground. He immediately informed the deceased’s in-laws. Thereafter, Monika was admitted to Korba Hospital. Due to the seriousness of her condition, she was referred to Apollo Hospital in Bilaspur, but she died on the way. During investigation, spot map was prepared vide Ex.P-4 and merg intimation was registered vide Ex.P-10. FIR was registered vide Ex.P-7. Appellants were arrested vide Exs.P-17 to P-20. After due investigation, final report was prepared.

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In order to bring home the offence, the prosecution examined as many as 16 witnesses and exhibited 21 documents. The statement of the appellants under Section 313 of Cr.P.C. were also recorded in which they denied the material appearing against them and stated that they are innocent and they have been falsely implicated in the case. D/1 to D/6 are exhibited in their defense.

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After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal.

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(a) Learned counsel for the appellants would submit that the appellants have been falsely implicated in the case. There is no allegation of demand of dowry soon before the death of deceased. Learned counsel submits that the marriage of the deceased was solemnized with A-1 on 10.02.2012 and the

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& ACQA No.68 of 2013

incident took place on 15.10.2012, between that period, there is no any compliant or FIR has been made by the deceased or by her parents regarding allegation of demand of dowry. The parents and sibling of deceased admitted that the appellants and the family members take care of deceased. The trial Court has not appreciated the evidence properly and came into erroneous conclusion while passing the judgment of conviction which is liable to be set aside. He further submits that the independent witnesses are declared hostile by the prosecution and in their statements there are full of contradictions and omissions.

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(b) Learned counsel further stated that the deceased has not even disclosed about any harassment by appellant, soon before her death regarding the demand of dowry. He submits that there is no evidence produced by the prosecution that at any point of time i.e. after marriage and soon before the incident, the appellant ever made any specific demand of dowry from the deceased and only general and bald allegation has been made against them without there being any specification regarding nature of alleged demand of dowry. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside.

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On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellants and stated that there are sufficient evidence available on record to hold that

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& ACQA No.68 of 2013

the appellants are guilty for the alleged offence and the learned trial Court has absolutely justified in passing the judgment of conviction and sentence against the appellants which does not require for any interference.

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We have heard learned counsel for the parties and perused the record.

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Deepa PW-5, sister of the deceased, stated in her evidence that during the time of marriage of deceased, her father gave gifts and cash worth 10,30,000. She further said that her sister Monika₹ had told her that her husband, mother-in-law, brother-in-laws were harassing her regarding the dowry. The appellants used to make taunt to her sister by saying that less money had been brought during the wedding. She also stated that about 4-5 months after the marriage, the appellants continued to harass and torture her sister in relation to dowry and the husband threatened to kill and give divorce. In cross-examination, she stated that she had met with a road accident in Durg during the month of September while she was studying there, and sustained injuries. At that time, her parents were not in Korba. Thereafter, her father told to A-1 to help her and then A-1 directed to A-2 to help her. Thereafter, A-2 took her to hospital and after treatment, he left her in the house.

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PW-4 Satyanarayan Prasad, father of deceased stated that just 10 days after the marriage, during a conversation with his

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daughter, she told that she was subjected to harassment in the form of less dowry. On 10.03.2012, his daughter was crying over phone. His daughter told him that the appellants used to harass and scold regarding the dowry and asked her to bring money from her parental home. He further stated that that in April 2012, when his daughter came home to appear in exam, she said that her inlaws were demanding 5 lakh rupees from her parental home, and threatened to give her a divorce if she didn’t bring it. The witness further stated that his daughter was subjected to both physical and mental harassment. On the date of incident, Pawan called on phone and informed that Monika had fallen from the stairs and was injured, and that she was being taken to the hospital. At that time, Monika was unconscious. In cross-examination this witness stated that a lump was in the chest of deceased and A-1 was very well known about this fact. He admitted the fact that A-1 took the deceased to Korba Hospital, where she was treated by Dr. Paliwal under his care. In Para-35, he stated that during Holi festival, A-1 along with the deceased came to his house celebrated the festival. He further stated that the deceased along with A-1 participated in the Pooja held in his house.

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PW-7, Mamta Singh, mother of deceased corroborated the allegation made by her husband, Satyanarayan Prasad (PW-4). She stated that, in the marriage of her daughter with A-1, Rs. 10,30,000 have been spent. She also stated about the alleged

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harassment and physical assault by the in-laws with her daughter and also Rs. 5 lacs has been demanded her in-laws. However, she further stated that marriage of her daughter with A-1 was solemnized on 10/02/2012, but during the Holi festival i.e. 07/03/2012, deceased along with A-1 came to their house and attended in Pooja and also celebrated Holi festival, thereafter, both of them returned to their house same day. In para 21 of her cross-examination, she stated that in the month of September, they went to the house of her daughter/deceased and from there, they along with her daughter and A-1 went to Madhwarani temple for worship. After returning from temple, all of them had took dinner in Coffee House Korba and from there, her daughter and A-1 had gone to their house by motorcycle. In Para 31, she stated that on the occasion of birthday of A-1, they went to his house and gave him a gift and spent time with them with joy and happiness.

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PW-15, Dr. P.P.Singh, who conducted postmortem of the deceased and submitted a following report vide Ex.P-7A:-

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“both the eyes were closed, mouth was slightly open, eyebrows were black around the eyes, stiffness was present, there was a 4 x 3 cm peeled wound in the middle and left side of the forehead. This witness has stated that there were stitches on the nose of the deceased, bleeding was present from the nose, blood was accumulated in both the nostrils, two incisor teeth were broken on the left side of the lower jaw, one canine

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& ACQA No.68 of 2013

tooth was broken on the left side of the upper jaw and there were many irregular peeled wounds on the left hand. On examination, this witness has stated that both the bones of the left hand were broken, there was a pierced wound on the wrist of the right hand, both the bones of the right hand were broken, there was a 2 x 2 cm lump in the hip, there was a 3 x 2 cm wound in the left knee. The witness has stated that there was a bruised wound of the size of 1.5 cm and swelling in the lower part of the left thigh. On examination, this witness has stated that there was a fracture in the lower part of the thigh .

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Opinion: Cause of death of the deceased was excessive bleeding due to rupture of kidney, spleen and left kidney which was caused due to falling from a great height.”

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PW-13, Salimuddin Nizami stated in his evidence that on 15.10.2012, he was at home in the morning. Upon hearing the sound, he came outside and saw Monika lying on the ground. Then, he shouted, and then A-1 and his mother came down from the upper floor of the house. After that, they took her to Korba hospital in his vehicle, where she was treated. Later, he came to know that Monika had passed away. In cross-examination, he admitted that on the date of the incident, A-1 and A-2 were not at home. However, he stated that within a few seconds of hearing the sound of a falling, he saw Monika lying on the ground, he immediately called out, and A-1 reached there. He further

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admitted that Monika, Pawan, and the other family members were living together peacefully and with mutual consent."

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From bare perusal of aforesaid evidence, it is manifest that the marriage of deceased was solemnized in the month of February 2012 according to Hindu rites and rituals. PW-5 Deepa, sister of deceased stated that in the month of September while she was studying there, sustained injuries in accident, then A-1 told A-2 to help her. Thereafter, A-2 took her to hospital and after treatment, he dropped her in the house. PW-4 Satyanarayan Prasad, father of deceased stated that a lump was in the chest of deceased and A-1 was very well known about this fact, then A-1 took the deceased to Korba Hospital, where she was treated by Dr. Paliwal under his care. In Para-35, he stated that during the Holi festival, A-1 along with the deceased came to his house and celebrated the festival. He further stated that the deceased along with A-1 participated in the Pooja held in his house. PW-7, Mamta Singh, mother of deceased stated that they along with her daughter and A-1 went to Madhwarani temple for worship. After returning from temple, all of them took dinner in Coffee House Korba and spent whole day with joy and happiness and from there, her daughter and A-1 had gone to their house by motorcycle. In Para 31, she stated that on the occasion of birthday of A-1, they went to his house and gave him a gift and spent time with them with cheerfulness.

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After analyzing the above evidences, after the marriage of deceased with A-1, no report or complaint was lodged by the parents of deceased regarding the demand of dowry or any harassment by the appellants. When parents of deceased went to the house of deceased on the occasion of birthday of A-1, they gave a gift to A-1 and all of them celebrated the moment. Apart from that, parents of deceased along with A-1 and her daughter, went to Madhwarani temple and after worshiping there, they took dinner in the Coffee House and spent whole day with joy and happiness. In fact, father of deceased categorically stated that her daughter along with A-1 went to his house in Holi festival and after celebrating that day, they attended Pooja in his house. There are many occasions where both the family members meet together and celebrated the moment, but no complaint or report was lodged between the whole scenario. From the statement of Salimuddin Nizami, it is manifest that on the date of the incident, A-1 and A-2 were not at home. However, within a few seconds of hearing the sound of a falling, he saw Monika lying on the ground, he immediately called out, and A-1 reached there. He further admitted that Monika, Pawan, and the other family members were living together peacefully and with mutual consent.

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In such circumstances, allegation against the appellants for harassment to the deceased in the form of dowry is completely absent, as the deceased was never harassed by the appellants

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& ACQA No.68 of 2013

soon before death and no complaint was made against the appellants before the death regarding the demand of dowry. No eye witnesses in the case.

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Section 113-B of the Evidence Act presumes as to dowry death, provision of which is extracted below for ready reference.

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“ 113B. 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. 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 aforementioned provision mentions that the person to be treated with cruelty or harassment for, or in connection with, any demand of dowry soon before her death.

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Provision of Section 304-B of IPC is also extracted below for ready reference.

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“ 304B. 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 less than seven years but which may extend to imprisonment for life.”

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In the aforementioned provision, it is provided that if a death of 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 it is subjected to cruelty or harassment.

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A conjoint reading of both the provisions would show that it would not be enough that harassment or cruelty was caused to the woman with a demand for dowry at some time for invoking Section 304-B of IPC. But it is for the prosecution to prove that it happened “soon before her death”. The proximity to her death is the pivot indicated by that expression and is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. The Supreme Court in the case of Hira Lal and others vs. State (Govt. of NCT) Delhi reported in 2003 AIR SCW 3570 observed that the expression “soon before her death” used in the substantive Section 304-B of IPC and Section 113B of the Evidence Act is

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present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not definite. 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.

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The Supreme Court in case of Kaliyaperumal and Another vs. State of Tamil Nadu reported in (2004) 9 SCC 157 while considering the appeal against the conviction under Section 304B of IPC has held thus:

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“ 4. Section 304B IPC deals with dowry death which reads as follows:

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" 304B. 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 purpose of this subsection 'dowry' shall have 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 less than seven years but which may extend to imprisonment for life."

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The provision has application when 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304B IPC, the essential ingredients are as follows:-

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

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(ii) Such a death should have occurred within seven years of her marriage.

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

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

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

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Section 113B of the Evidence Act is also relevant for the case at hand. Both Section 304B IPC and Section 113B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B reads as follows:-

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"113B: 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 304-B of the Indian Penal Code (45 of 1860)."

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The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10th August, 1988 on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the preexisting law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113B in the Evidence Act has been inserted. As per the definition of 'dowry death' in Section 304B IPC and the wording in the presumptive Section 113B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:

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(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B IPC).

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(2) The woman was subjected to cruelty or harassment by her husband or his relatives.

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(3) Such cruelty or harassment was for, or in connection with any demand for dowry.

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(4) Such cruelty or harassment was soon before her death.

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5. A conjoint reading of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring

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otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113B of the Evidence Act and Section 304B IPC are pressed into service. 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 prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket 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 304B IPC and Section 113B 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 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 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 concerned cruelty or harassment and the death in question. There must be existence of a proximate and livelink between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.”

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Yet, in case of Manohar Lal ( supra ) considering the judgment in

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case of Hira Lal (supra) with approval has held thus:

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“ 20. The expression “soon before her death” used in the Section 304B IPC and Section 113B of the Evidence Act was considered by this Court in Hira Lal & Others vs. State (Govt. of NCT), Delhi, (2003) 8 SCC 80,which reads as under:

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“8. Section 304-B IPC which deals with dowry death, reads as follows:

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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 purpose of this subsection, ‘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 less than seven years but which may extend to imprisonment for life.” The provision has application when 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B IPC, the essential ingredients are as follows:

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(i) The death of a woman should be caused by burns or bodily injury or

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otherwise than under a normal circumstance.

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(ii) Such a death should have occurred within seven years of her marriage.

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

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

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

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Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:

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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 had 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. [pic]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).” The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on “Dowry Deaths and Law Reform”. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowryrelated deaths, the legislature thought it

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wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of “dowry death” in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand of dowry”. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:

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(1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304- B IPC.)

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(2) The woman was subjected to cruelty or harassment by her husband or his relatives.

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(3) Such cruelty or harassment was for or in connection with any demand for dowry.

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(4) Such cruelty or harassment was soon before her death.” Similar observation was made by this Court in Balwant Singh and Another vs. State of Punjab (2004) 7 SCC 724. In the said case this Court held: (SCC p. 728, para 10)

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“10. These decisions and other decisions of this Court do lay down the proximity test. It has been reiterated in several decisions of this Court that “soon before”

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is an expression which permits of elasticity, and therefore the proximity test has to be applied keeping in view the facts and circumstances of each case. 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.” ”

¶169

22. The statement of the complainant PW.1 is general and not specific. No specific incidence has been indicated suggesting the cruelty or harassment made by the accused-Manohar Lal. Her statement is not reliable and not trustworthy. Though the allegation of demand of dowry was made none of the witnesses including PW.1 stated that the deceased was harassed “soon before her death” for or in connection with demand of dowry. The accused appellant was charge-sheeted under Sections 498-A and 304-B IPC but the Trial Court has not convicted the accused under Section 498-A. In this background, we are of the opinion that the prosecution has miserably failed to prove that the accused harassed the deceased soon before her death for or in connection with a demand of dowry.”

¶170

In the present case, upon consideration of the evidence on record, it is evident that the allegations made against the appellants are omnibus and the same are insufficient to sustain the charges against the appellants. Soon before death, no fact has been attributed that the appellants had harassed the deceased in the form of demand of dowry.

¶171

Applying the well settled principles of law and for the reasons mentioned hereinabove, the appeal (CRA No.1076 of 2013) is Allowed. The impugned judgment is set aside. The appellants are on bail. Surety and personal bonds earlier furnished by him at the

22

CRA No.1076 of 2013

& ACQA No.68 of 2013

time of suspension of sentence shall remain operative for a period of six months in view of the provisions of Section 481 of the BNSS. The appellants shall appear before the higher Court as and when directed.

¶176

ACQA No. 68 of 2013

¶177

The instant appeal has been filed by the father of the deceased against the impugned judgment dated 8-10-2023 passed by the learned Additional Sessions Judge, Korba, in ST No.108/2012 whereby the accused Nikhil Kumar has been acquitted and the other co-accused namely; Pawan Kumar @ Vicky, Ashish Kumar @ Chhote and Smt. Champa Devi have been convicted under Section 304-B/34 of IPC and sentenced them to undergo RI for 10 years with default stipulations. Now by the instant appeal the complainant would pray for convicting all the accused persons for offence under Section 302/34 of the IPC by imposing appropriate sentence.

¶178

Since the appeal bearing CRA No.1076 of 2023 preferred by accused Pawan Kumar @ Vicky, Ashish Kumar @ Chhote and Smt. Champa Devi, who are husband, brother-in-law and motherin-law, respectively of the deceased Monika has already been considered in detail, which is apparent from the preceding paragraphs of this common judgment and they have been acquitted from the charge levelled against them for offence under

¶179

23

¶180

CRA No.1076 of 2013 & ACQA No.68 of 2013

¶181

Section 304-B/34 of IPC, nothing remains in this acquittal appeal for consideration. Even from appreciation of evidence adduced by the prosectuion, the oofence under Section 302 of IPC is not attracted. Accordingly, the instant appeal (ACQA No.68/2013) is hereby dismissed.

¶182

Ex-consequenti , CRA No.1076 of 2013 filed by the accused persons is allowed and ACQA No.68 of 2013 filed by father of the deceased is dismissed .

¶183

The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

¶184

SD/SD/-

¶185

(Bibhu Datta Guru) (Ramesh Sinha ) Judge Chief Justice

¶186

Amardeep/Gowri

Pawan Kumar @ Vicky and Ors. v. State Of Chhattisgarh

Case brief

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Pawan Kumar @ Vicky and Ors. v. State Of Chhattisgarh

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