1

2025:CGHC:7784-DB

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No.773 of 2020

Judgment reserved on 16.01.2025

Judgment delivered on : 13.02.2025

1 - Smt. Usha Bai Sahu W/o Horilal Sahu, Aged About 40 Years R/o

Village - Pisid, Police Station Kasdol, District - Baloda Bazar -

Bhatapara Chhattisgarh

Appellant

versus

1 - State Of Chhattisgarh Through - Station House Officer, Police

Station - Kasdol, District - Baloda Bazar - Bhatapara Chhattisgarh

Respondent(s)

CRA No. 229 of 2021

1 - Bhagwat Prasad Sahu S/o Horilal Sahu Aged About 27 Years R/o

Village Pisid, P. S. Kasdol, District Baloda Bazar-Bhatapara

Chhattisgarh

2 - Horilal Sahu S/o Reshamlal Sahu Aged About 61 Years R/o Village

Pisid, P. S. Kasdol, District Baloda Bazar-Bhatapara Chhattisgarh

Appellants

Versus

1 - State Of Chhattisgarh Through P. S. Kasdol, District Baloda Bazar-

Bhatapara Chhattisgarh

Respondent(s)

2

For Appellants :Mr. Amarnath Pandey and Mr. Gagan Pandey,

Advocates

For Respondent(s) :Mr. Devesh G. Kela, PL

Hon’ble Smt. Justice Rajani Dubey

Hon’ble Shri Justice Sachin Singh Rajput

C A V Judgment

Per Rajani Dubey J.

1.Since both the appeals arise out of the common judgment of

conviction and order of sentence, therefore, both the appeals are

heard together and are being decided by a common order.

2.The present appeals are directed against the judgment of

conviction and order of sentence dated 12.03.2020 passed by

the learned 3

rd

Additional Session Judge, Baloda Bazar-

Bhatapara (C.G.) in ST No.74/2017, whereby the appellants have

been convicted under Sections 498-A/34 and 304-B/34 of IPC

and sentenced to undergo RI for 3 years and life imprisonment

with default stipulations.

3.The prosecution case, in brief, is that on 23/05/2017, the Police

of Police Station, Kasdol received information that Archana Sahu

has been burnt from the fire and has been admitted in

Community Health Center Kasdol, thereafter Police went there

and recorded the dying declaration of the deceased Archana

Sahu, wherein she stated that appellants committed maarpeet

with her and poured kerosene oil on her and set her ablaze. After

investigation, the charge sheet was filed before the Magistrate

3

concerned. After appreciating the oral and documentary evidence

available on record, the learned Trial Court convicted the

appellants, as mentioned in para 2 of the judgment.

4.Learned counsel for the appellant submits that the judgment of

conviction and order of sentence passed by learned trial court is

bad in law as well as facts available on record. That the judgment

of conviction passed by the learned trial court is bad in law as

well as facts available on record. The learned Trial Court have

not considered the statements of PW-1 Raghuveer Sahu, PW-2

Rameshwari, PW-3 Smt. Ram Bai and PW-4 Neetu Manikpuri,

who are the neighbors of the appellants. There is no eye witness

to the incident and only on the basis of conjectures and surmises,

the appellants have been convicted. Most of the important

witnesses have turned hostile and have not supported the

prosecution case, but these aspects of the matter have not been

considered by the learned Trial Court. Therefore, the impugned

judgment is liable to be set aside. Reliance has been placed on

the judgment rendered by the Hon’ble Supreme Court in the

matter of Phulel Singh vs State of Haryana, reported in (2024)

1 SCC CR 64.

5.Per contra, learned State counsel supports the impugned

judgment and submits that the prosecution has proved its case

beyond reasonable doubt. The learned Trial Court has minutely

appreciated the oral and documentary evidence and rightly

4

convicted the present appellants. Therefore, the appeals are

liable to be dismissed.

6.Heard learned counsel for the parties and perused the material

available on record.

7.It is clear from the record of the learned Trial Court that the

learned Trial Court framed charges under Section 498-A and

Section 304-B read with Section 34 of IPC and in alternate

Section 302 read with Section 34 of IPC against all the appellants

and after appreciating the oral and documentary evidence the

learned Trial Court convicted the appellants, as mentioned in

para 2 of the judgment.

8.It is not disputed in this case that the deceased Archana is the

wife of Bhagwat and their marriage was solemnized prior to 2

years of the incident. It is also not disputed that the deceased

died due to burning. PW-18 R. K. Khande stated that he was

posted as Head of the Medical Record Department in Narayana

Hospital and Archana Sahu was admitted in the siad hospital on

23.05.2017 and she died on 27.05.2017. As per hospital memo,

merg intimation was recorded vide Ex-P/21 and he admitted his

signature on A to A part.

9.Dr. A. S. Chouhan (PW-21) stated that he is posted at CHC,

Kasdol as Medical Officer and on 23.05.2017, Archana Sahu was

brought by Constable Mratyunjay. He examined the deceased on

12:40 pm and after examination he found that her body was burnt

80-85% and deep burn and grievous injuries were found due to

5

burning by kerosene oil and gave report (Ex-P/22). Dr. Om

Prakash Dubey (PW-27) stated that he is working as Medico

Legal Officer at Ramkrishna Care Hospital, Raipur and Archana

was admitted on 23.05.2017. As per family members of patient,

she was burnt by kerosene oil and she died during treatment on

27.05.2017. Her medical documents are Ex-P/35 and he

admitted his signatures on A to A part.

10.Dr. O. P. Tandon (PW-33) stated that he conducted postmortem

of the deceased Archana Sahu and after examination he opined

that death was due to cardio respiratory failure as a result of burn

injuries and its complications and gave his report (Ex-P/43) and

nothing came out in his cross-examination to negate the same so

it is proved beyond reasonable doubt that Archana died due to

burn injuries prior to 7 years of marriage.

11.As per prosecution, the appellants committed murder of the

deceased Archana and two dying declarations were recorded

during investigation. Ex-P/12 is the first dying declaration. Mohit

Kumar Thakur (PW-22) Head Constable stated that he recorded

statement of Archana at CHC Kasdol and he gave application

(Ex-P/24) for examination of Archana and also gave application

for recording of dying declaration (Ex-P/26) and he admitted his

signatures on A to A part and also recorded FIR under Sections

307 & 498-A of IPC vide Ex-P/27. In the cross-examination, he

admitted that Ex-P/12 was written in his handwriting. In the said

dying declaration, the deceased Archana Sahu stated that her in-

6

laws used to commit maarpeet with her for want of money and

her sister-in-law poured kerosene oil on her and her husband got

her burnt. The second dying declaration is Ex-P/42 recorded by

PW-31 Executive Magistrate Nand Kishore Sinha. In Ex-P/42, it

was alleged by the deceased that her mother-in-law and

husband have got her burnt.

12.The learned Trial Court found that both the dying declarations

were recorded as per statement of the deceased, but the learned

Trial Court convicted the appellants under Section 304-B of IPC

and not convicted under Section 302 of IPC. If dying declarations

are trustworthy, then all the appellants are guilty of murder of the

deceased. As per both dying declarations, deceased’s mother-in-

law Usha poured kerosene oil on the deceased and appellant

Bhagwat got her burnt by matchbox, but it is clear from Ex-P/12

that there is no fitness certificate given by doctor in this regard

that patient is fit for statement or not. Only signatures and seal of

doctors were taken. Dr. A. S. Chouhan (PW-21) admitted his

signature on Ex-P/12 but in the cross-examination, he admitted

that Ex-P/12 was not written in his handwriting, policemen have

written but who has written he does not know. He also admitted

that blood pressure and pulse rate have not been written by him

in Ex-P/12. He stated that he gave fitness certificate (Ex-P/23)

but in Ex-P/23, no time was recorded in this certificate and it is

also not proved by doctor A. S. Chouhan and head constable that

at what time Ex-P/12 was recorded. As per Executive Magistrate,

7

he started recording of statement of the deceased at 5 pm and

he admitted his signatures on E to E part and above his signature

date 24.05.2017 is recorded and time is recorded as 6 pm and

below his signature, signature of doctor is being shown and

below signature of doctor, date is recorded as 25.05.2017 and

time as 5 pm. In first page of dying declaration (Ex-P/42), it is

written as ‘izekf.kr fd;k tkrk gS fd vpZuk lkgw ty xbZ gS fdarq iw.kZ

gks’kks gokl ds lkFk c;ku nsus dh fLFkfr esa gSA’

As per Executive Magistrate, he recorded this dying

declaration on 24.05.2017, but it is clear from this document that

signature of doctor was obtained before or after recording of the

statement and below his signature, date 25.05.2017 is written.

13.Thus, both dying declarations are concocted and not definite and

trustworthy. The learned Trial Court relied upon these dying

declarations but the learned Trial Court has not convicted the

appellants under Section 302 of IPC. If both the dying

declarations were found trustworthy, then definitely the appellants

are guilty of commission of murder of the deceased and they are

liable to be punished under Section 302 of IPC but the learned

Trial Court after appreciating all these facts recorded finding that

dying declarations are trustworthy and recorded as per statement

of the deceased but did not convict the appellants under Section

302 of IPC, as such this finding is not sustainable.

14.The prosecution has also not challenged this finding and acquittal

8

of appellants under Section 302 of IPC so we did not consider

statement of witnesses for charge of Section 302 of IPC, but the

prosecution has proved this fact that the deceased died within 7

years of her marriage and she died due to burn injuries.

15.Now we have to consider this fact that whether the appellants are

guilty of offence under Section 304-B of IPC or not.

16.PW-1 Raghuvir Sahu stated that neighbor of appellants namely

Sushila Bai one telephoned him that Bhagwat committed

maarpeet with Archana, then he along with Suryaprakash went to

the house of the appellants and made them understand not

quarrel. Later on he came to know that the deceased has burnt.

Sushila Bai (PW-8) has not supported the prosecution case and

she stated that Bhagwat and Archana were living peacefully. She

had seen Archana in burnt condition. The prosecution declared

her hostile and cross-examination her but she denied all

suggestions of prosecution and denied her police statement (Ex-

P/10) on A to A part and B to B part. Smt. Rameshwari (PW-2)

Smt. Ram Bai (PW-3) and Neetu Manikpuri (PW-4) neighbors of

the appellants stated that appellant Usha Bai called all

neighboring women of society and told them that her daughter-in-

law does not do household work, as such they should make her

understand, but they did not support the prosecution case. The

prosecution declared them hostile, but they denied their police

statement.

9

17.The father of the deceased Manbodhi Ram Sahu (PW-5) stated

that the in-laws of her daughter used to commit maarpeet with

her and when he objected the same, then the appellant Horilal,

father-in-law of the deceased told him that your daughter does

not do household works thats why the committed maarpeet with

her. In para 3 he stated that on 23.05.2017, neighbor of the

appellant informed him that his daughter has got burnt then he

rushed to Kasdol where he came to know that her daughter was

admitted in Narayana Hospital and later on referred for Raipur,

then he went there where he saw her daughter got burnt and

when he asked her, then she told that her mother-in-law and

husband have got her burnt.

18.Smt. Chandrakala Sahu (PW-7) stated that Usha Bai once called

her and told her that deceased Archana does not do the

household work. The appellant Bhagwat used to commit

maarpeet with her daughter and they did not provide food to her.

She also stated that a son was born out of their wedlock but he

died due to weakness, as her daughter was not provided proper

food and they also used to commit maarpeet with her, as such

the baby inside the stomach must have received injuries. In para

5 she stated that the accused Bhagwat and Horilal came to her

home and took the child with them, but did not take her daughter

Archana with them. She also stated that she deposited

Rs.50,000/- in the account of her daughter, which was withdrawn

by Horilal. In the cross-examination, she admitted that all these

10

statements were not told by her before Police vide Ex-D/2.

19.PW-9 Babulal Sahu, maternal uncle (mama) of the deceased did

not support the prosecution. The prosecution declared him

hostile and cross-examined him but he denied this suggestion of

prosecution that the appellants used to assault her. He also

denied his police statement (Ex-P/11). PW-10 Dudhram also

stated that one he along with other family members on deceased’

mother saying had gone to make the in-laws of the deceased

understand not to quarrel with her, upon which they agreed to live

peacefully and after few days he came to know that the

deceased has died due to burn injuries.

20.Bajrangi Prasad Sahu (PW-11), younger brother of accused

Bhagwant of son of accused Usha Bai and Horilal stated that on

the date of incident, he was not at home. When he came back,

he came to know that his sister-in-law (bhabhi) has got burnt.

Labourers told him that Archana poured kerosene on her and got

burnt herself, upon which the appellants poured water and took

her to hospital. Surya Prakash (PW-13) stated that he was ex

president of Sahu Society. Horilal had come to him prior to

incident to intervene and stated that there is dispute between the

deceased and the accused Bhagwant, then he told him that give

all these statements in written. The prosecution declared him

hostile and cross-examined him. He admitted this suggestion of

prosecution that he had gone to the house of Archana along with

her family members to make the appellants understand not to

11

commit maarpeet with her and told them to live peacefully.

21. A close scrutiny of statement of all the witnesses clearly shows

that before death of deceased, some dispute took place between

Archana and family members and members of society went to

make them understand.

22.The Hon’ble Supreme Court in the matter of Phulel Singh

(supra) held in paras 21, 22 & 23 as under:-

“21.In the dying declaration recorded by Shri Sadhu

Singh (PW-5), Executive Magistrate, the deceased is

said to have stated that on 5th November 1991 at

around 12.00 noon, her husband Phulel Singh, i.e.,

the appellant herein, Jora Singh, father-in-law and

Dhan Kaur, mother-in-law caught hold of her. Her

husband, the appellant herein put kerosene on her

person and set her ablaze. She further stated that

when she was set on fire, she raised an alarm but the

accused overpowered her.

22. It is relevant to note that the deceased received

burn injuries on 5th November 1991 but the dying

declaration came to be recorded on 8th November

1991 after an application was made by the relatives of

the deceased to the SDM, Ludhiana. Shri Sadhu

Singh (PW-5), Executive Magistrate, in his evidence,

admitted that the boys, who had brought the

application containing the order of the SDM, Ludhiana

had told him that the statement of the deceased

should be recorded and that she was in a position to

make the statement. He further admitted that those

boys had told him that whatever they had to tell the

deceased, they had told her and that he should

accompany them to record her statement. He has

further admitted that those 2-3 boys were related to

the deceased and some other persons were also in

the room in which he recorded the statement of the

deceased.

23. It could thus be seen that there is a grave doubt

as to whether the dying declaration recorded by Shri

Sadhu Singh (PW-5), Executive Magistrate was a

voluntary one or tutored at the instance of respondent

No.5. It is further relevant to note that Dr. Jatinder Pal

12

Singh (PW-8), in his deposition itself, states that Shri

Sadhu Singh (PW-5), Executive Magistrate had

recorded the dying declaration of the deceased on 8

th November 1991 at 04.40 p.m. whereas the opinion

with regard to her fitness was given by him at 06.00

p.m. on 8th November 1991. He has further admitted

that he had not mentioned in the bed-head ticket that

he had attested the statement of the deceased at

04.40 p.m. on 8th November 1991. It is thus doubtful

as to whether Dr. Jatinder Pal Singh (PW-8) had

really examined the deceased with regard to her

fitness prior to her statement being recorded by Shri

Sadhu Singh (PW-5), Executive Magistrate.”

23.Section 304-B of IPC provides as under:-

“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.

(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.”

24.Section 113B of Evidence Act provides as under:-

“113-B. Presumption as to dowry death.[Inserted by

Act 43 of 1986, Section 12 (w.e.f. 1.5.1986).]- 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.”

25.In light of above, it is clear that the prosecution has proved only

this fact that the deceased died unnatural death prior to 7 years

13

of marriage but the prosecution has failed to prove this fact

beyond reasonable doubt that she was subjected to cruelty for

demand of dowry. The learned Trial Court only on the basis of

dying declarations of deceased convicted the appellants under

Sections 498-A and 304-B of IPC. The finding recorded by the

learned Trial Court is not based on the proper appreciation of oral

and documentary evidence, as such the impugned judgment is

liable to be set aside.

26.Consequently, the appeals are allowed and the impugned

judgment of conviction and order of sentence is hereby set aside.

The appellants are acquitted of the charges under Sections 498-

A and 304-B read with Section 34 of IPC.

27.The appellants Usha Bai and Bhagwat are in jail, whereas the

appellant Horilal is on bail. The appellants Usha Bai and Bhagwat

be released forthwith if they are not required to be detained in

any other offence.

28.Keeping in view the provisions of section 481 of BNSS 2023, the

appellants are directed to furnish a personal bond for a sum of

Rs.25,000/- before the court concerned forthwith, which shall be

effective for a period of six months along with an undertaking that

in the event of filing of Special Leave Petition against the instant

judgment or for grant of leave, the aforesaid appellant on receipt

of notice thereof, shall appear before the Hon’ble Supreme Court.

29.The trial Court record along with a copy of this judgment be sent

14

back immediately to the trial Court concerned for compliance and

necessary action.

Sd/- Sd/-

Rajani Dubey Sachin Singh Rajput

Judge Judge

Nirala