Shrawan Chauhan Vs State of Chhattisgarh

1. This criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (henceforth, Cr.P.C.) has been preferred by the appellant/accused challenging the judgment of conviction and order of sentence dated 26.02.2022 passed by First Upper Session Judge, Raigarh (C.G.) in Sessions Trial No. 23/2021 whereby the appellant has been convicted for the offence 304-B of the IPC and sentence him to undergo rigorous imprisonment for seven years.

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2. Case of the prosecution, in brief, is that marriage of Raiwati Chauhan (since deceased) was solemnized with the appellant/accused on 09.04.2017 as per their rites and rituals. On 11.07.2020 at about 11 a.m. while cooking food on the hearth (pwYgk), the ‘saree’ worn by her caught fire of hearth and she sustained burn injuries, which was extinguished by the appellant. On this, his (appellant) palm also burnt up to some extent. Appellant immediately took her to Community Health Center {C.H.C.}, Pussour, District Raigarh where she (deceased) was examined by Dr. Rajni Naik (PW-8), in which vide MLC report (Ex.P-6) she opined that kerosene smell was coming from the body and she has sustained around 80% - 85% burn wound over the body. She referred her to Higher Center and in pursuance thereto, she (deceased) was admitted in K.G.H. / Dr. Lakhiram Agrawal Memorial Medical College, Raigarh (for short, ‘KGH Hospital’), which was informed to the City Kotwali, Raigarh vide Hospital Memo (Ex. P-28). Upon request received from police, vide Ex.P-7, Naib Tahsildar – Vikrant Singh Rathore (PW-9) recorded her dying declaration (Ex. P-8). During treatment in aforesaid medical college, she died on 16.07.2020, which was informed by the Hospital to the City Kotwali, Raigarh vide Hospital Memo (Ex.P-27). Based on which, unnumbered merg report (Ex.P-22) was registered.

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2.1 During merg enquiry, inquest report (Ex.P-2) was prepared by Ruchika Agrawal, Naib Tahsildar, Raigarh. Postmortem of the body of the deceased was conducted by Dr. S. Lakra (PW-17) vide Ex.P-23, in which, he opined that the body of the deceased was burnt superficially and deeply to the extent of 72% - 82% and cause of death was septicemia and internal organ failure

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due to burn injuries. He further opined that nature of death can be determined on the basis of evidence collected during investigation.

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2.2. Upon un-numbered merg diary at Police Station Pussoure, numbered merg report (Ex.P-12) was registered by Assistant Sub Inspector - Surendra Kumar Verma (PW-14). Head Constable – Keshav Prasad (PW-12) recorded statement of maternal relatives of deceased and other witnesses, in which, they revealed that appellant used to torture deceased by saying her to bring money from her parents to purchase motorcycle. After merg enquiry, FIR (Ex.P-10) was lodged against the appellant/accused for the offence punishable under Section 304-B of the IPC. The appellant was arrested on 15.10.2020 vide arrest memo (Ex.P-17). Marriage card (Article A-1) of deceased and appellant was obtained by the police.

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2.3 After usual investigation, charge-sheet under Section 304-B of IPC was filed against the appellant before concerned Judicial Magistrate, who, in turn, committed the case to the Court of Sessions Judge, Raigarh from where learned First Upper Session Judge, Raigarh (trial Court) has received the case on transfer for trial. Learned trial Court framed charge under Section 304-B of the IPC against the appellant, who abjured the guilt and claimed trial.

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3. So as to hold accused/appellant guilty, the prosecution examined as many as 19 witnesses and exhibited 28 documents alongwith marriage card (Article A-1). Statement of the appellant/accused was recorded under Section 313 of Cr.P.C. in which he denied all the circumstances appearing against him in the prosecution evidence, pleaded innocence and false implication. He has examined three witnesses in support of his defence.

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4. The trial Court, after appreciating oral and documentary evidence available on record, by its judgment dated 26.02.2022, convicted the appellant for the offence under Section 304-B of the IPC and sentenced him to undergo rigorous imprisonment for seven years. Against which, instant appeal has been preferred by the appellant challenging the same.

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5. Learned counsel appearing for the appellant/ accused would submit that parents and brother of deceased themselves have admitted in their deposition that the deceased was well taken care of by the appellant and even appellant resided in the house of in-laws along with the deceased-wife for about six months, but only on flimsy way mother and brother of deceased have stated in their deposition that the appellant used to harass the deceased by saying her to bring money from her parents to purchase motorcycle. But, this fact has not even been supported by father of deceased, rather it has been admitted by him (father of deceased) and other witnesses also that on some occasions the victim herself had demanded only Rs 1,000Rs. 2,000/- from her father, which is a common phenomena between father and daughter. Learned counsel further submits that though because of some trivial issue, a dispute erupted between them, therefore, the deceased left the company of appellant and started living at her matrimonial place, but the appellant himself went to her matrimonial place and stayed there for about 6 months and on being explained in a meeting, both of them returned to the appellant's place. It is further contended that Dying Declaration (Ex.P-8) recorded by Naib Tahsildar / Executive Magistrate - Vikram Singh Rathore (PW-9) itself is against the charge levelled against the appellant, despite that without any valid & effective evidence, appellant has been convicted by learned trial Court for the alleged offence, which is perverse and illegal,

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hence, he prays that appeal may be allowed by setting aside the judgment passed by the trial Court and the appellant may be acquitted of the charge levelled against him.

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6. Per contra, learned counsel for the State would submit that impugned judgment is based on well appreciation of evidence, hence, it does not call for any interfence by this Court, therefore, the appeal deserves to be rejected.

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7. I have heard learned counsel for the parties, considered their rival submissions made and also went through the record of the trial Court with utmost circumspection.

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8. From the facts projected by the prosecution in FIR as well as other documents i.e. marriage card (Article A-1), Hospital Memo (Ex.P-15) sent by C.H.C. Pussoure to the police Station Pussour, MLC report of victim (Ex.P-6) prepared by Dr. Rajni Naik (PW-8), Hospital Memo (Ex.P-27) & (Ex.P-28) prepared by Kamlesh Kumar Meshra, Ward Boy (PW-18) and Keshav Prasad Jaiswal, Ward Body (PW-19), respectively admitting deceased in burn condition on 11.07.2020 and information pertaining to her death on 16.07.2020 sent by K.G.H. Hospital, Raigarh, based on which, un-numbered merg report (Ex.P-22) was lodged, Inquest report of deceased (Ex.P-2) and postmortem report (Ex.P-23), which was conducted and proved by Dr. S. Lakda (PW-17) and deposition of Arjun Chauhan (PW-1), who is father of deceased, Shivprasad Chauhan (PW-2), who is brother of deceased and Sonkunwar Chauhan (PW-5), mother of deceased, it has rightly been held by the trial Court that deceased died within 7 years of her marriage, as her marriage was solemnized on 09.04.2017 whereas she died on 16.7.2020 on account of the burn injuries sustained by her in the said accident, as such, her death was unnatural. Such finding recorded by the learned trial Court is

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finding of fact based on appreciation of evidence available on record, therefore, the same is hereby affirmed.

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9. Charge levelled against the appellant is dowry death, which has been made punishable under Section 304-B of the IPC, which reads thus :-

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“Section 304-B. Dowry death. - (1) Where the death of a woman is caused by any burns 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 ore 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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10. The essential ingredients, which need to be proved in order to attract the offence of dowry death is as follows :

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(i) Death is caused in unnatural circumstances.

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(ii) Death must have occurred within seven years of the marriage of the deceased.

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

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11. Section 113-B of the Evidence Act provides presumption against the accused in cases of ‘dowry death’, which reads thus :-

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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

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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 to 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 304-B of Indian Penal Code".

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12. In a catena of judgments, as also in recent judgment of the Hon’ble Supreme Court in the matter of Karan Singh Vs. State of Haryana1 , their Lordships have reiterated that, the presumption under Section 113-B will apply when it is established that soon before her death, the woman has been subjected to cruelty or harassment by the accused, or in connection with any demand for dowry. Therefore, even for attracting Section 113-B, the prosecution must establish that the deceased was subjected to cruelty or harassment by the appellant or in connection with any demand of dowry soon before her death. Unless these facts are proved, the presumptions under Section 113-B of the Evidence Act cannot be invoked.

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13. In the instant case, since deceased died within seven years of her marriage because of burn injuries sustained to her, thus, her death is unnatural, but so far as circumstances, in which, she sustained burn injuries and whether she was subjected to cruelty or harassment by the appellant soon before her death is concerned, her father Arjun Chauhan (PW-1), brother Shiv Prasad Chauhan (PW-2) and mother Sonkunwar Chauhan (PW-5) have stated in their deposition that till four month of marriage, deceased and appellant resided well, thereafter, dispute erupted between them. Brother (PW-2) and mother (PW-5) of deceased have deposed that appellant tortured the deceased to bring money from her parents to purchase

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1 Criminal Appeal No. 1076 of 2014, decided on 31^st January, 2025

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motorcycle, but this fact does not get support from Arjun Chauhan (PW-1), who is father of deceased. Though, Nehru Chauhan (PW-4) has also supported aforesaid fact i.e. demand of motorcycle by appellant, but according to him, that fact was informed by his younger brother – Arjun Chauhan (PW-1), who himself has not supported that fact in his deposition.

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14. Father, brother and mother of deceased themselves have stated in their deposition that while marriage, no demand was made by the appellant. Aforesaid witnesses alongwith Himanshu Chauhan (PW-3) and Nehru Chauhan (PW-4) have also stated that social meeting was convened pertaining to the dispute erupted between deceased and the appellant, in which, on being made to understand them, deceased went to her matrimonial place along with the appellant, but none of these witnesses have stated in their deposition that in that social meeting, a complaint was made by the deceased that appellant used to harrass her in connection with demand of money and motorcycle from her parents.

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15. Garima Dwivedi (PW-15), Additional Superintendent of Police, is the Investigating Officer of the Instant case. She has admitted in paragraph 12 of her cross-examination that after receiving the case for investigation, she gone through the deposition of Arjun Chauhan (PW-1), Shiv Prasad Chauhan (PW-2) and Sonkunwar Chauhan (PW-5), who are father, brother and mother of deceased and other witnesses only also, in which, they have not stated any fact with regard to demand of motorcycle by the appellant /accused. Though, she has stated that father of victim had made complaint in this regard, but no such written complaint, etc. has been filed alongwith the charge-sheet. This fact also does not get support from deposition of father of deceased – Arjun Chauhan (PW-1). Thus, since appellant had not made any

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demand while marriage, parents of deceased as well as other witnesses have not disclosed in their merg statement, as admitted by Investigating OfficerGarima Dwivedi, Addl. Superintendent of Police (PW-15), about the demand of motorcycle by the appellant from his wife and this fact does not get support from deposition of her father. Deceased herself did not compel about aforesaid fact in alleged social meeting, therefore, only on the basis of flimzy and baseless statement of brother (PW-2) and mother (PW-5) of deceased, it cannot be held proved that deceased was subjected to cruelty or harrassment by the appellant in connection with demand of motorcycle.

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16. Arjun Chauhan (PW-1) has stated in his deposition that deceased sometimes demanded Rs.1,000/- or Rs. 500/- from him and one day prior to incident, she had also demanded Rs. 1,000/- by calling him over phone, which also get supported from deposition of brother (PW-2) and mother (PW5) of the deceased, but they have not stated that appellant had made said demand of money or deceased had told them that aforesaid amount has been demanded by the appellant. Both the parties belong to very low financial strata and as per deposition of Himanshu Chauhan (PW-3), the appellant is a labourer, therefore, sometimes demanding some money like Rs.1,000/- - Rs.2,000/- by daughter from her father is natural phenomena, it cannot be held that, that money was sought by husband, as it has not been proved in instant case also that alleged money sometimes sought by deceased from her father was eventually demanded by appellant, therefore, from the evidence adduced by the prosecution, it is not proved that soon before her death, the deceased was subjected to cruelty or harrassment by the appellant.

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17. So far as circumstances pertaining to unnatural death of deceased is concerned, Ex.P-8 is dying declaration of deceased recorded by Naib Tahsildar – Vikrant Singh Rathore (PW-9), who is proved that document. This witness has stated in his deposition that on being asked by him with regard to cause of her burn injuries, she had stated that on 11.7.2020, she got burnt while putting fire in the hearth at around 11 o'clock. He has further stated that on being asked that whether she had been burnt by someone, to which the deceased replied in ‘negative’. This witness has further deposed that since both hands of deceased had bandaged, therefore, he had taken impression of toe of her left leg with the help of Assistant Sub Inspector as her signature. Aforesaid fact also get supported from Dying Declaration (Ex.P-8) of the deceased. Though no endorsement of doctor has been made in the Dying Declaration (Ex.P-8) of deceased that as to whether she was capable to make statement, but she died after about 4 days from the date of incident, during which, her parents and other relatives were also reached there. But, neither they have stated that deceased was unconscious on that day or she was not capable to make her statement, rather father (PW-1) & brother (PW-2) of deceased have admitted in their cross-examination that the as deceased was burnt, they suspected that she might have been burned by someone, but she (deceased) did not tell us anything about the burn injuries at the hospital.

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18. Thus, from the evidence adduced by the prosecution, though it is found proved that cause of death of deceased was unnatural because of burn injuries, but the prosecution has failed to prove the fact that the circumstances, in which, she sustained burn injuries was unnatural, rather from the dying declaration of the deceased, it is found proved that while

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cooking food in hearth ( pwYgk ), the saree worn by her caught fire of hearth and she sustained burn injuries superficially and deeply to the extent of 72% - 82%.

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19. Pardeshi Chauhan (DW-3), who is neighbor of appellant, has stated in his deposition that on hearing screams from the appellant’s house, when he went out side from his house, he saw the appellant coming from the pond after taking a bath and asked him to rush to his house as he heard screaming from his house, thereafter, the appellant reached his house and extinguished the fire of his burning wife and immediately took her to the hospital. In the said incident, the appellant had also sustained burn injuries.

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20. Head constable - Keshav Prasad (PW-12) has stated in paragraph 5 of her cross-examination that Pardeshi Chauhan (DW-3) has stated aforesaid facts in his merg statement. ASI Surendra Kumar Verma (PW-14) has stated in his deposition that on 11.07.2020, when deceased was brought in burn condition at C.H.C., Pussoure for treatment, then, upon information received at police station, he had prepared application for medical examination of deceased, who was alive at that time and appellant also, as both of them had sustained burn injuries in the said incident. This witness further admitted in his cross-examination that Raiwati (victim at that time) told her that she sustained burn injuries while cooking food and while extinguishing fire on her person by the appellant and both the hands of the appellant had also got burnt.

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21. Dr. Kaleshwar Prasad Rathia (DW-1) of Community Health Centre, Pussour examined the appellant on 11.07.2020, wherein as per the MLC report (Ex.D-1), he opined that there were burn injuries on the upper part of

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the left hand and fingers and also on the right chest and left shoulder to the extent of 5%.

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22. Thus, from the evidence available on record, it is found proved that while cooking food in hearth (chulha), the saree worn by her caught fire of hearth and she sustained burn injuries, at that time, the appellant was coming from pond after taking a bath and upon receiving information about the incident, he immediately rushed to his house and extinguished the fire of his burning wife, in between, he has also sustained burn injuries on his hand, chest, left shoulder. Thus, after considering the aforesaid evidence available on record, it is established that the cause of death of the deceased was accidental.

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23. In view of above discussion, it is found that prosecution has utterly failed to prove that death of deceased fall in the category of ‘dowry death’, but learned trial Court merely on the basis of flimsy and unreliable evidence, held appellant guilty of the charge of ‘dowry death’, which is perverse and illegal, hence, it is not sustainable.

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24. This Court, thus, inclined to deem this case unsuitable for securing a conviction of the appellant under Section 304-B of the IPC. Therefore, for the forgoing reasons, impugned judgment of conviction and order of sentence dated 26.02.2022 passed by First Upper Session Judge, Raigarh (C.G.) is liable to be and is hereby set aside and the appellant is acquitted of the said charge.

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25 . The appellant is reported to be on bail, his bail bonds shall remain in force for a further period of six months in view of the provisions contained in Section 481 of the BNSS, 2023

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26. Let copy of this judgment along with record of the court below be sent

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back forthwith for compliance and needful.

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Sd/-

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AMITKUMAR Digitally signedby AMITKUMAR DUBEYDate: DUBEY 2025.10.1611:16:57 +0530

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(Naresh Kumar Chandravanshi) Judge

Shrawan Chauhan v. State of Chhattisgarh

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Shrawan Chauhan v. State of Chhattisgarh

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