Gopal Kesharwani Vs State of Chhattisgarh

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2026:CGHC:1007

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 219 of 2022

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1 - Gopal Kesharwani S/o Shri Bharat Kesharwani Aged About 28 Years R/o Village Sukulpara, Kharaud, Police Station Shivarinarayan, Civil And Revenue District Janjgir-Champa, Chhattisgarh., District : Janjgir-Champa, Chhattisgarh

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2 - Sarojani Bai W/o Shri Bharat Kesharwani Aged About 60 Years R/o Village Sukulpara, Kharaud, Police Station Shivarinarayan, Civil And Revenue District Janjgir-Champa, Chhattisgarh., District : Janjgir-Champa, Chhattisgarh

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versus

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State Of Chhattisgarh Through The Station House Officer, Police StationShivarinarayan, Civil And Revenue District Janjgir-Champa, Chhattisgarh., District : Janjgir-Champa, Chhattisgarh

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... Respondent

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{Cause title, as taken from Case Information System}

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For Appellants : Mr. Aman Kumar Kesharwani, Advocate. For Respondent : Mr. Sanjeev Pandey, Dy. Advocate General.

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{Hon’ble Mr. Justice Naresh Kumar Chandravanshi}

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Judgment on Board

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07/01/2026

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1. Challenge in this appeal is to the impugned judgment of conviction and order of sentence dated 4^th January, 2022 passed by Upper Sessions Judge {Fast Track Court}, Janjgir, District Janjgir-Champa (for brevity, “Fast Track Court” ) in Sessions Case No. 131 of 2016, whereby the learned Fast Track

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Court, after holding the appellants guilty, convicted and sentenced each of

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them in the following manner:-

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Conviction	Sentence
Under Section 304 (B) of IPC	Rigorous imprisonment for seven years with fine of Rs.5,000/-, in default thereof, to undergo additional rigorous imprisonment for two months to each of them.

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2. Case of the prosecution, in brief, is that marriage of deceased namely Vandana Kesharwai was solemnized with the appellant No. 1/accused on 20.04.2014 as per their rites & customs. Appellant No. 2 is mother of appellant No. 1. It is alleged that after few months of marriage, the appellants started harassing the deceased showing dissatisfaction with the dowry items received at the time of marriage, therefore, they tortured the deceased mentally & physically for bringing Rs.50,000/- from her parents and on account of such humiliation and frustration, on 04.09.2015, she set herself on fire by pouring kerosene oil on herself, as a result thereof, she sustained burn injuries to the extent of 90 %, thereafter, she was taken to Dr. Baghel Hospital, Shivrinarayan for treatment, from where she was referred to Burn & Trauma Research Centre, CIMS Hospital, Bilapur for further treatment, where during treatment, she succumbed to burn injuries on 05.09.2015. Information in this regard was sent by the CIMS Hospital to the police. Based on which, Police Station Tarbahara, District Bilaspur registered un-numbered merg report (Ex.P-17). Inquest report of dead body of the deceased was prepared by Jai Uraon, the then Executive Magistrate (PW-10). Postmortem of dead body of the deceased was conducted by Dr. Manish Shrivastava, Medical Officer (PW-6), in which, vide Postmortem report (Ex.P-8), he opined that

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cause of death of deceased was shock due to antimortem burn. Unnumbered merg enquiry was transferred to police Station Shivrinarayan, within whose jurisdiction, the said incident had occurred. In merg enquiry, it was found that on account of harrassment meted out to the deceased by the appellants on demand of dowry / money, she committed suicide by pouring kerosene oil upon herself. Hence, FIR (Ex.P-14) was registered against the present appellants, elder brother of appellant No. 1 /husband ( jeth ), his wife ( jethani ) and younger brother of husband (Devar) . Statements of the witnesses were recorded. One chimni , match box, one Mangal Sutra, two pieces of bangles, burn clothes and concrete of place of incident were seized vide seizure memo (Ex.P-3). Spot map (Ex. P-4) was prepared by the police whereas spot map (Ex.P-5) was prepared by Patwari (PW-9). Marriage card of deceased and appellant No. 1 was seized vide seizure memo (Ex.P-6). The appellants were arrested. After usual investigation, charge-sheet for the offence under Section 304 (B) read with Section 34 of the IPC was filed against the appellants and three other co-accused persons.

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3. Charge under Section 304 (B) / 34 of IPC, alternatively charge under Section 302/34 of IPC was framed against all five accused persons, who abjured their guilt and claimed trial.

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4. In order to prove the guilt of the appellants/accused, the prosecution has examined as many as 16 witnesses and exhibited 17 documents. Statements of the accused/appellants were recorded under Section 313 of the Cr.P.C., in which they denied all the circumstances appearing against them in the prosecution evidence, pleaded innocence and false implication. The appellants have not examined any witness in support of their defence.

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5 . After considering evidence adduced by the prosecution, learned Fast

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Track Court acquitted elder brother of appellant No. 1, his bhabhi and younger brother (accused No. 3 to 5 therein) finding no specific evidence against them, but convicted the present appellants for the offennce under Section 304 (B) read with Section 34 of the IPC and sentenced each of them, as has been mentioned in opening paragraph of the judgment, which has been assailed by the appellants in the instant appeal.

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6. Learned counsel appearing for the appellants submits that it has been admitted by mother (PW-2) and father (PW-4) of the deceased in their crossexamination that at the time of marriage, no demand of dowry was made by the appellants. Even after marriage, if there would have any demand of money or dissatisfaction with the articles given during marriage, then any complaint would have made by the deceased or her family members of matrimonial side, but no such complaint was made neither in police nor any Society forum because there was no any demand of dowry. He further submits that only vague & baseless allegations have been levelled by the prosecution witnesses, who are relatives of her (deceased) maternal side. He further submits that to convict the persons for the offence under Section 304 (B) of the IPC, the prosecution has to prove that the deceased was harassed on account of demand of dowry soon before her death, but no prosecution witness has proved such fact except by making vague and baseless statements, despite that learned Fast Track Court has convicted the appellants for the aforesaid offence, whereas, on same set of facts, other similarly situated co-accused persons have been acquitted of the alleged charges by the Fast Track Court, which is perverse & illegal to the evidence available on record, hence, he prays the appeal may be allowed by setting aside the impugned judgment and the appellants may be acquitted of the said charge.

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7. On the other hand, learned counsel for the State while supporting the impugned judgment would submit that the deceased died under suspicious circumstances due to burn injuries within 17 months of marriage. He further submits that parents and other relatives of deceased have proved that appellants used to harrass deceased on account of demand of dowry, therefore, he prays that judgment rendered by learned Fast Track Court is based on well appreciation of evidence, hence, the same is liable to be upheld.

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8. I have heard learned counsel for the paries and considered their rival submissions made herein-above and went through the record of trial Court with utmost circumspection.

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9. Roshan Kesharwani (PW-1), Purnima Bai (PW-2), Santosh Kumar Gupta (PW-4), Rakhi Agrawal (PW-5) and Krishna Kumar Gupta (PW-7) are uncle, mother, father, friend and brother, respectively of the deceased. They have stated in their evidence that marriage of the deceased was solemnized with appellant No. 1 on 20.04.2014 as per their rites & customs. They have further stated that in the night of 04.09.2015, deceased sustained burn injuries up to the extent of 90 % and succumbed to those injuries on 05.09.2015 at CIMS Hospital, Bilaspur during treatment.

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10. Ex.P-2 is inquest report prepared by Jai Uraon, Deputy Collector (PW-10). Dr. Manish Shrivastava, Medical Officer (PW-6), who has conducted postmortem of deceased, has deposed that deceased had sustained burn injuries to the extent of 90%, but he did not found any other injuries on her body. He opined that cause of death of deceased was shock due to antimortem burn. Thus, from the aforesaid evidence, it is found proved that

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deceased died under unnatural circumstances within 17 months within marriage.

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11. So far as allegation of harrassment meted out to the deceased by the appellants on account of demand of dowry / money is concerned, Roshan Kesharwani (PW-1), who is uncle of deceased, has stated in his evidence that after 8 – 9 months of the marriage, when deceased came to visit his house at Shivrinarayan alongwith her brother-in-law (Jeth) , sister-in-law (jethani) and husband, at that time, she told him that her in-laws tortured her physically & mentally by saying that she had brought less dowry, but he has unable to state the that that on which date that fact was told by deceased to him.

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12. Purnima Bai (PW-2), who is mother of deceased, has stated in her deposition that on 31.08.2015 when deceased had come to her matrimonial home to get her pregnancy treatment alognwith her husband, at that time, she told that her in-laws i.e. mother-in-law, father-in-law, jeth, jethani, Dever and husband were demanding Rs. 50,000/- by saying that she had brought less dowry and also committed marpeet with her, but she has admitted in her cross-examination that at the time of marriage, no demand of dowry was made by the appellants.

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13. Santosh Kumar Gupta (PW-4) and Krishna Kumar Gupta (PW-4), who are father & brother of deceased, respectively, have stated in their evidence that mother of deceased (PW-2) had told them about demand of money by the family members of in-laws of deceased.

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14. Rakhi Agrawal (PW-5), who is friend of deceased, has stated in her evidence that when the deceased was one month’s pregnant, but her mother-

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in-law (appellant No. 2) fed her colostrum (is;ksal) and jaggery, due to which, she suffered miscarriage. She has further stated that deceased had told her that her in-laws used to harrass her by saying that she was unable to conceive after six months of marriage. But father, mother or uncle of deceased have not stated in their evidence that deceased had complained that she had suffered miscarriage because of being consumed alleged colostrum and jaggery to her by her mother-in-law or she was harrassed by them by saying that she was unable to conceive after six months of marriage

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15 . Perusal of deposition of aforesaid witnesses clearly reveals that no demand of dowry was made by the appellants at the time of marriage. When no specific facts have been stated by the witnesses that after how many months of marriage, appellants demanded alleged money, statements of the witnesses in this regard is found to be completely vague and omnibus.

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16. It appears from the evidence of Roshan Kesharwani (PW-1), uncle of deceased, and Purnima Bai, mother of deceased (PW-2) that all the accused persons used to make alleged demand of money, but on same set of facts, other co-accused persons (respondents No. 3 to 5 therein) have been acquitted of the alleged charges by the learned Fast Track Court vide impugned judgement.

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17. Hon’ble Supreme Court in the matter of Javed Shaukat Ali Qureshi vs. State of Gujarat1 has held as under :-

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“15. When there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the Court cannot convict one accused and acquit the other. In such a case, the cases of both the accused

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1 (2023) 9 SCC 164

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will be governed by the principle of parity. This principle means that the Criminal Court should decide like cases alike, and in such cases, the Court cannot make a distinction between the two accused, which will amount to discrimination.”

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18. The interpretation of Sections 304B and 498A IPC came up for consideration before the Apex Court in the matter of Baijnath and others vs. State of Madhya Pradesh2 . The opinion was summed up in paras 25 to 27 thereof, which are extracted below:-

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“ 25 . Whereas in the offence of dowry death

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defined by Section 304-B 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 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 498-A of the

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Code is attracted qua the husband or his relative if she is subjected to cruelty. The Explanation to this Section exposits “cruelty”

as:

2 (2017) 1 SCC 101

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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 haras property or valuable security as a demand 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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19. As the aforesaid case was also pertaining to dowry death, presumption under Section 113B of the Indian Evidence Act was also discussed in detail in paras 29 to 31 of the aforesaid judgment. The same are extracted below:-

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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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A conjoint reading of these three provisions, thus predicate the burden of the prosecution unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113-B of the Act against the accused. Proof of cruelty or harassment by the husband or his 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 ab ove referred offences cannot be held guilty by taking refuge only of the presumption to

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cover up the shortfall in proof.

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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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20 . A conjoint reading of Section 304B IPC and Section 113B of the Indian Evidence Act with reference to the presumption raised was discussed in para 32 of the aforesaid judgment, which is extracted below:

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“32. This Court while often dwelling on the scope and purport of Section 304-B of the Code and Section 113-B 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 v.State ofPunjab [Shindo v.State of Punjab, (2011) 11 SCC 517 : (2011) 3 SCC (Cri) 394] and echoed in Rajeev Kumar v. State of Haryana [Rajeev Kumar v. State of Haryana, (2013) 16 SCC 64 0 : (2014) 6 SCC (Cri) 346]. 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

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has committed the offence of dowry death under Section 113-B of the Act. It referred to with approval, the earlier decision of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao [K. Prema S. Rao v.Yadla Srinivasa Rao, (2003) 1 SCC 217 : 2003 SCC (Cri) 271] to the effect that to 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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21 , The principle of law laid down by the Supreme Curt in the case of Baijnath (supra) has further been reiterated and followed by the Supreme Court in the case of Charan Singh alias Charanjit Singh vs. State of 3 Uttrakhand .

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22. Having considered the law laid down by the Hon’ble Supreme Court in aforecited cases, if facts of the case in hand is considered, it is quite vivid that no specific allegations have been levelled against all the appellants/accused persons as to when and how they harrassed the deceased, rather all the prosecution witnesses have levelledd omnibus allegations against all five accused persons, who have been charge-sheeted. No evidence has been brought to substantiate the fact that deceased was harrassed on account of demand of dowry / money soon before her death, which is mandatory requirement to convict the accused persons for the offences under Section 304 (B) of the IPC.

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23 . In view of the foregoing discussion, it is found that without any cogent & reliable evidence, appellants have been convicted by the learned Fast Track

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3 2023 SCC OnLine SC 454

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Court merely on the basis of vague and omnibus statements, thus, the impugned judgment suffers from illegality or perversity warranting interference of this Court in the instant appeal. As such, the impugned judgment deserves to be set aside.

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24. In the result, the intant criminal appeal is allowed and impugned judgment of conviction and order of sentence passed by Upper Sessions Judge {Fast Track Court}, Janjgir, District Janjgir-Champa vbin Sessions Case No. 131 of 2016, against the appellants for the offence under Section 304 (B) of the IPC is set aside. The appellants / accused are acquitted of the said charge.

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25. The appellants / accused are reported to be on bail. The bail bonds furnished by them shall remain in operation for a period of six months from today in view of the provisions contained in Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023.

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26. Let a copy of this judgment alongwith original record be sent back to the concerned trial Court forthwith for information & necessary action, if any.

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Sd/-

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(Naresh Kumar Chandravanshi) Judge.

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amit

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AMITKUMAR Digitally signedby AMITKUMAR DUBEYDate: DUBEY 2026.01.1911:15:00 +0530

Gopal Kesharwani v. State of Chhattisgarh

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Gopal Kesharwani v. State of Chhattisgarh

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