MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GCRLA No.10 of 2002 In the matter of an Appeal under Section 378 (1)(3) of the Code of Criminal Procedure, 1973 and from the judgment of acquittal dated 29th January, 2002 passed by the learned Sessions Judge, Ganjam-Gajapati at Berhampur in S.C. No.162 of 1998. State of Orissa …. Appellant ---- -versus- 1. Muna Dash; and 2. Tuna Dash …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode) For Appellant - Mr.P.K. Maharaj, Additional Standing Counsel For Respondents- Mr.A.P. Mishra CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 29.08.2024 : Date of Judgment : 04.09.2024 The State of Odisha, in this Appeal, has called in question the judgment of acquittal dated 29th January, 2002 passed by the learned Sessions Judge, Ganjam-Gajapati at Berhampur in S.C. No.162 of 1998 arising out of G.R. Case No.159 of 1997 corresponding to Kodala P.S. Case No.121 of 1997 of the Court
Legal Reasoning
of the learned Judicial Magistrate First Class (J.M.F.C.), Kodala. GCRLA No.10 of 2002 Page 1 of 11 It be stated at this stage that Respondent No.2, Namely, Ichha Dash, being dead, the Appeal has been dismissed as against her and it now remains confined in respect of Respondent Nos.1 & 3. These Respondents, being arraigned as accused persons, faced the trial for commission of the offences under sections 498-A/304-B/302 read with section 34 of the Indian Penal Code, 1860 (for short, ‘the IPC’) and section 4 of the Dowry Prohibition Act, 1961 (in short, ‘the D.P. Act’). The Trial Court, having gone through the evidence let in by the prosecution and defence and on perusal of the documents admitted in evidence from the side of the prosecution (Exts.1 to 14), has finally come to the conclusion that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubt, which is now under challenge in this Appeal by the State. 2. Prosecution Case:- The accused-Muna Dash is the husband of Jagyasini Dash whereas accused-Tuna Dash is the brother of accused-Muna and as such, is the brother-in-law of Jagyasini. It is stated that Jagyasini had married accused-Muna on 18.01.1997. After about seven months, on 03.09.1997, Jagyasini met her death in the house of her in-laws. Subash Chandra Sahu (Informant- GCRLA No.10 of 2002 Page 2 of 11 P.W.15) when submitted a written report (Ext.3) before the Sub-Inspector (S.I.) of Police at Polsara Police Out-Post under the jurisdiction of Kodala P.S., he, after making an entry in the Station Diary Book maintained at the Police Out-Post, took up the investigation and sent the FIR to Kodala P.S. for registration of the case. The allegations made therein are that the Informant (P.W.15) had given cash of Rs.40,000/-, gold ornaments, furniture and other household articles to accused-Muna in the said marriage. Subsequently, there being additional demand of Rs.10,000/- and one Bhari Gold, that had not been fulfilled. For the same, it is said that Jagyasini was subjected to cruelty by these accused persons and other members of the family and it was suspected that they had killed Jagyasini. In course of investigation, the Investigating Officer (I.O.- P.W.18) examined the Informant (P.W.15) and recorded his statement under section 161 of Cr.P.C and so also of the other witnesses. Having visited the spot, the I.O. (P.W.18), held the inquest over the dead body of the deceased and sent the dead body for post mortem examination by issuing necessary requisition. The seized incriminating articles were sent for chemical examination through Court. On completion of the investigation, the I.O. (P.W.18) submitted the Final Form GCRLA No.10 of 2002 Page 3 of 11 placing this accused to face the Trial for commission of the offences. 4. Learned J.M.F.C., Kodala, on receipt of the Final Form, took cognizance of said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offences against this Respondent-accused persons. 5. The prosecution, in support of its case, has examined in total eighteen (18) witnesses during Trial whereas the defence examined two. As already stated, the informant, who happens to be the father of the deceased, is P.W.15. The Doctor, who held the autopsy over the dead body of the deceased is P.W.11. P.W.6 is the scribe of the FIR and the I.O., at the end, has come to the witness box as P.W.18. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 14. Out of those; important are the FIR (Ext.3); inquest report (Ext.2) and post mortem report (Ext.6). The defence, being called upon, has examined two witnesses as D.Ws.1 & 2. GCRLA No.10 of 2002 Page 4 of 11 6. The Trial Court, upon examination of the evidence and their analysis, has held the prosecution to have not been able to establish the charges against these accused persons as also others beyond reasonable doubt and accordingly, the accused persons, having been acquitted the same is under challenge in this Appeal.
Legal Reasoning
7. Mr.P. K. Maharaj, learned Additional Standing Counsel for the State (Appellant) submitted that the appreciation of evidence, as has been made out by the Trial Court, is wholly perverse. He further submitted that when several prosecution witnesses have deposed about the demand of dowry and torture upon the deceased on account of non-fulfilment of the same, the Trial Court has gone wrong in holding the same as unsafe and hazardous to be relied upon. He further submitted that when the death had taken place in the house of the accused persons and they have failed to explain as to how it all happened to the deceased that she met a homicidal death, the Trial Court, according to him, ought to have held these accused persons guilty of commission of the offence under section 302 of the IPC as they have failed to discharge the burden of proof shifting upon them in view of the provision contained in section 106 of the Evidence Act. He thus submitted that the judgment of acquittal is liable to be set at naught. GCRLA No.10 of 2002 Page 5 of 11 8. Mr. A. P. Mishra, learned counsel for the accused persons (Respondents) submitted all in favour of the finding which have been returned by the Trial Court. According to him, said findings are based on just and proper appreciation of the Trial Court and the Trial Court having analysed the evidence from all possible angles, has rightly held the same as unsafe to be relied upon. He further submitted that the foundational facts for discharging the initial burden of proof, which was resting upon the prosecution, having not been established by leading clear, cogent and acceptable evidence, the question of shifting the said burden of proof upon the shoulder of these accused persons, according to him, did not arise and, therefore, the trial court has not gone to that side and having stated that the circumstance that the deceased was found lying dead in the house alone is not enough to fasten the guilt upon the accused persons when they have led evidence through DWs.1 & 2 regarding their absence in the house at the relevant time and when one prosecution witness (P.W.8) has clearly stated that the deceased, having received the fall from the staircase, had sustained those injuries, there is no scope for interference with the said finding of the Trial Court. It was thus submitted that the Appeal, at the behest of the State, does not merit acceptance. GCRLA No.10 of 2002 Page 6 of 11 9. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the prosecution (P.Ws.1 to 18) and Defence (DWs.1 & 2) and have perused the documents admitted in evidence marked as Exts.1 to 14. 10. Before proceeding to address the rival submissions, we would like to place on record, the scope of interference in an appeal against the acquittal and when the same is justified. In exceptional cases, where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference – Pudhu Raja v. State (2013) 1 SCC (Cri) 430: (2012) 11 SCC 196; Phula Singh V. State of Himachal Pradesh, 2014 AIR SCW 1499. See also Basappa v. State of Karnataka 2014 AIR SCW 1529. Interference with acquittal in appeal is justified only when there is element of perversity traceable from the findings recorded by the lower court in appreciation of evidence – GCRLA No.10 of 2002 Page 7 of 11 Govindaraju v. State (2012) 2 SCC (cri) 533: (2012) 4 SCC 722. In Ramesh Harijan v. State of U.P. (2012) 2 SCC (Cri) 905: (2012) 5 SCC 777, it has been held as follows:- there are cases where “The law of interfering with the judgment of acquittal is well- settled. It is to the effect that only in compelling exceptional circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide: State of Rajasthan v. Talevar & Anr., AIR 2011 SC 2271; State of U.P. v. Mohd. Iqram & Anr., AIR 2011 SC 2296; Govindaraju @ Govinda v. State by Srirampuram Police Station & Anr., (2012) 4 SCC 722; and State of Haryana v. Shakuntla & Ors., (2012) 4 SCALE 526). 11. In the touchstone of the aforesaid, now let us proceed to examine the evidence as to whether there arises the justification for reversing the judgment and order of acquittal recorded by the Trial Court. There is no denial of the relationship of these accused persons with the deceased as stated. Indisputedly, the death of the deceased had occurred in the house of the accused persons and it was well within a period of 7 years of her marriage with GCRLA No.10 of 2002 Page 8 of 11 accused-Muna. Keeping in view the evidence of the Doctor (P.W.11) and his report (Ext.6), which have not been seriously challenged from the side of the defence that the deceased met a homicidal death having received bodily injuries, the question now arises as to whether the accused persons had subjected the deceased to cruelty and it was soon before the death. The prosecution has examined P.Ws.1, 3, 4, 8, 12, 13, 15, 16 & 17 to prove the same. The Trial Court, as it appears from the judgment, has scrutinized the evidence of each of those witnesses and as it appears assigning very good reasons, has held the same to be not inspiring confidence in mind to so conclude that there was demand of dowry and torture upon the deceased on account of non-fulfillment of the said demand of dowry. We have carefully read all those paragraphs of the judgment passed by the Trial Court. It, having surfaced in evidence that the accused persons purported to have written letters, those had been seized by the I.O (P.W.18), being produced by the father of the deceased (Informant-P.W.15) under seizure list (Ext.12). But although those would have thrown light on that issue, those has not been proved from the side of the prosecution as to have been written by the accused persons in their own hand writing. Therefore, the oral evidence GCRLA No.10 of 2002 Page 9 of 11 on that score has been rightly discarded without being acted upon. The Trial Court, upon detail analysis of the evidence, has arrived at a conclusion that the prosecution evidence as regards the demand of dowry and torture upon the deceased on account of non-fulfillment of the said dowry and that it was soon before the death is not worthy of credence. After thorough scrutiny of the evidence on record, we are not in a position to trace out any perversity with the same so as to say that the result and finding of the Trial Court is the outcome of perverse appreciation of evidence on record. 12. It is not in dispute that the body of Jagyasini had been recovered from the house of the accused persons. But, then, we find no evidence on record to say that these accused persons, during their period, were in the house. The accused persons have led evidence as regards their absence through D.Ws. 1 & 2 and those have practically remained un-assailed when it has also been the evidence of P.W.8 that she had seen the deceased receiving the fall from the staircase in sustaining the injuries. 13. In such state of affair in the evidence, when the foundational facts for discharge of the burden of proof which was lying on the prosecution, have not been proved beyond GCRLA No.10 of 2002 Page 10 of 11 reasonable doubt, the Trial Court is absolutely right in not proceeding further to examine that in the light of the provisions contained in section 106 of the Evidence Act whether the accused persons have discharged the said burden shifting upon their shoulder. 14.
Decision
In the result, the Appeal stands dismissed. The judgment of acquittal dated 29th January, 2002 passed by the learned Sessions Judge, Ganjam-Gajapati at Berhampur in S.C. No.162 of 1998 are hereby confirmed. (V. Narasingh) Judge (D. Dash) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 05-Sep-2024 12:32:47 GCRLA No.10 of 2002 Page 11 of 11