Smt.Ishlesh Bai Halwa Vs State of Chhattisgarh

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2025:CGHC:9052

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 435 of 200 8

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Smt. Ishlesh Bai Halwa D/o Bhojram Halwa aged about 36 years, Occupation – Labour, R/o High School Sector, Ward No. 9, Rajhara, Police Station – Rajhara, District – Durg, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh, Through : District – Magistrate, Durg, District – Durg, Chhattisgarh.

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---- Respondent

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For Appellant : Ms. Indira Tripathi, Advocate. For Respondent/State : Mr. Arvind Dubey, G.A.

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Order on Board

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( 20. 02.2025 )

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The present appeal arises out of the impugned judgment of conviction and order of sentence dated 24.03.2008 passed by the learned Additional Sessions Judge, Balod, District – Durg (C.G.), in Sessions Trial No. 30/20077 whereby, the learned Sessions Judge has convicted and sentenced the appellant as under :-

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Conviction		Sentence
U/s 304-B of IPC	Rigorous	imprisonment for 7
	years.

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Digitally signed by HEERA LAL SAHU Date: 2025.02.22 15:02:32 +0530

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Brief facts of the case are that on 29.07.2007, the marriage between deceased Shanti Bai and Gajendra, the brother of the appellant was solemnized. On the date of offence i.e. 23.10.2007, Shanti Bai committed suicide by setting her on fire then information regarding her death was sent by Merg intimation and thereafter a written complaint was lodged by the father of the deceased with the allegation that during the Dushehra festival daughter of the complainant has informed them that her elder sister-in-law (Nand) i.e. appellant had always abused and harassed her in connection with insufficient dowry and after knew the aforesaid fact once the complainant had asked the appellant why she abused to his daughter. On the basis of the aforesaid complaint FIR was lodged and after completion of investigation charge sheet was filed against the appellant.

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So as to hold the accused/appellant guilty, the prosecution has examined as many as 15 witnesses and exhibited 16 documents. The statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which she denied the circumstances appearing against her and pleaded innocence and false implication in the case. However, only one witness (DW-1) has been examined by the appellant in her defence.

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After hearing the parties, vide impugned judgment of conviction and order of sentence dated 24.03.2008, learned Sessions Judge has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, the present appeal.

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Learned counsel for the appellant submits that the learned trial Court has absolutely unjustified in convicting the

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appellant for the offence punishable under Section 304-B of IPC as the evidence available on record does not sufficient to hold the guilt of the appellant for the alleged commission of offence even from the evidence of parents offence under Section 304-B of IPC would not be made out. She further submits that the prosecution failed to establish its case beyond reasonable doubt and looking to the fact that deceased Shanti Bai did not like her husband, the probability of defence would be more probable rather than the case of the prosecution. Hamir (PW-3), father of the deceased has been declared hostile in his examination-inchief regarding the demand for dowry, even the other witnesses have not supported the case of the prosecution. She lastly submits that the ingredients of Section 304-B of IPC have not at all been established by the prosecution, therefore, the judgment of conviction is not sustainable. Hence, the appeal is liable to be allowed and the appellant is entitled to be acquitted.

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Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the appellant.

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Heard learned counsel for the parties and perused the material on record including the impugned judgment.

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It is an undisputed fact that the appellant in the case, Smt. Ishlesh Bai is the elder sister-in-law (Nand) of deceased Shanti Bai. The husband of the deceased has not been prosecuted by the prosecution in this case. It has been established from the statements of the prosecution witnesses that deceased Shanti Bai was married to Gajendra on 29.07.2007 and Shanti Bai died on 23.10.2007 due to pouring kerosene on her body and burning in fire. Thus, Shanti Bai died under unnatural

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circumstances within 07 years (within a gap of only 03 months) of her marriage.

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In the matter of Baijnath and others V. State of M.P.¹ , it has been held by their lordships of the Supreme Court as under paragraph 24-32:-

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“24.The evidence on record and the competing arguments have received our required attention. As the prosecution is on the charge of the offences envisaged in Sections 304B and 498A of the Code, the provisions for reference are extracted hereunder:

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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 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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498-A. Husband or relative of husband of a woman

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subjecting her to cruelty .—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

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Explanation.—For the purpose of this section, “cruelty” means—

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(a) any wilful conduct which is of such a nature as is likely

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1 (2017) 1 SCC 101

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to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

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(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

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25. Whereas in the offence of dowry death defined by

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Section 304B of the Code, the ingredients thereof are:

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(i) death of the woman concerned is by any burns or bodily injury or by any cause other than in normal circumstances and

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(ii) is within seven years of her marriage and

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(iii) that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of the husband for, or in connection with, any demand for dowry.

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The offence under Section 498A of the Code is attracted qua the husband or his relative if she is subjected to cruelty. The explanation to this Section exposits “cruelty” as:

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(i) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) or

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(ii) harassment of the woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

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26. Patently thus, cruelty or harassment of the lady by her husband or his relative for or in connection with any demand for any property or valuable security as a demand

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for dowry or in connection therewith is the common constituent of both the offences.

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27. The expression “dowry” is ordained to have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. The expression “cruelty”, as explained, contains in its expanse, apart from the conduct of the tormentor, the consequences precipitated thereby qua the lady subjected thereto. Be that as it may, cruelty or harassment by the husband or any relative of his for or in connection with any demand of dowry to reiterate is the gravamen of the two offences.

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28. Section 113-B of the Act enjoins a statutory presumption as to dowry death in the following terms:

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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 purpose 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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29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.

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30. A conjoint reading of these three provisions, thus

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predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.

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31. The legislative primature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person charged, cannot be overeased to gloss-over and condone its failure to prove credibly, the basic facts enumerated in the Sections involved, lest justice is the casualty.

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32. This Court while often dwelling on the scope and purport of Section 304-B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304-B as in Shindo Alias Sawinder Kaur and another Vs. State of Punjab – (2011) 11 SCC 517 and echoed in Rajeev Kumar Vs. State of Haryana – (2013) 16 SCC 640. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304-B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113B of the Act. It referred to with approval, the earlier decision of this Court in K. Prema S. Rao Vs. Yadla Srinivasa Rao – (2003) 1 SCC 217 to the effect that to

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attract the provision of Section 304-B of the Code, 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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If we consider the third important element in the light of the above judgments, then the statement of deceased Shanti Bai's father Hamir (PW-3), mother Mantora Bai (PW4) and stepmother Prembati (PW-10) is important in that regard. According to which, Shanti Bai had gone to her maternal home about 15 days after marriage, and was sent to her in-laws' house by her father Hamir (PW-3) on 04 October, 2007. Then Shanti Bai came to her maternal home with her husband Gajendra on 20 October on the occasion of Dussehra festival. Gajendra went back home on 21 October. On 22 October, father Hamir (PW-3) sent Shanti Bai to her in-laws' house and on 23 October, 2007, Shanti Bai died due to pouring kerosene on her body and burning in fire.

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11.As per the statement of father Hamir (PW-3), mother Mantora Bai (PW-4) and stepmother Prembati (P.W.-10), on coming to her maternal home, Shanti Bai had told them that the appellant, who is her elder sister-in-law (Nand), used to abuse her and taunts that the dowry received is less. Father Hamir (PW-3) has also said that after the marriage, mediation was done in front of the society because Gajendra had been married once before and he was deaf and Shanti's marriage was not done in a temple but at home with the exchange of garlands. In the statements of mother Mantora Bai (PW-4), stepmother Prembati (PW-10) as well as Mana Bai (DW-1), this fact comes out clearly that Shanti Bai's husband Gajendra had been married once before and Gajendra was deaf.

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12.According to the statement of Mana Bai (DW-1), when Shanti Bai came to her house to sit, she was told that she could not live in her in-laws' house because she does not like Gajendra, who is deaf and who is married for the second time. The statement of the defence witness has not been contradicted and the statements made by the defence witness have also been taken as defence in crossexamination during the prosecution evidence. Besides, it has not been made clear in the prosecution case, when and how abuse was made by the elder sister-in-law appellant to Shanti Bai and it has also not been made clear, how, when and in front of whom she used to harass her for bringing less dowry. On behalf of the prosecution, the father Hamir (PW-3), mother Mantora Bai (PW-4) and stepmother Prembati (PW-10) have not stated that dowry was ever demanded in their presence or any kind of demand was made from them.

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13.On the date of the incident i.e. 23.10.2007, father Hamir (PW-3) gave a written report vide Ex.P-1 on 31.10.2007 i.e. after 01 week. Before this, there is no evidence of dowry harassment. In such a situation, the statement of father Hamir (PW-3), mother Mantora Bai (PW-4) and stepmother Prembati (PW-10) does not prove beyond reasonable doubt that Shanti Bai was harassed for dowry just before her death and that Shanti Bai died in the said unnatural circumstances as a result of that harassment. As such, the conviction of the appellant under section 304-B of the Indian Penal Code is not found to be based on clear, sufficient and reliable evidence. Hence, the judgment in question is not found sustainable in the eye of the law and the appellant is liable to be acquitted on the basis of benefit of doubt.

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14.In the result, the appeal is allowed . The impugned judgment is set aside and the accused-appellant is acquitted of the said charge. Fine, if any, deposited by the appellant shall be refunded to her.

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15.The appellant is on bail. She need not to surrender in this case. Her bail bond shall remain in force for a period of six months in view of the provisions contained in Section 437A of the CrPC.

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16.Record of the Trial Court be sent back along with a copy of this judgment forthwith for information and necessary action, if any.

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Sd/- (Sanjay Kumar Jaiswal) JUDGE

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H.L. Sahu

Smt.Ishlesh Bai Halwa v. State of Chhattisgarh

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Smt.Ishlesh Bai Halwa v. State of Chhattisgarh

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