Criminal Appeal No. 48 of 2010 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 40 of 2012 (In the matter of an application under Section 401 of the Criminal Procedure Code, 1973) Manoj Kumar Panda ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. P.C. Jena, Advocate For the Opp. Party : Mr. Debasish Biswal, Addl. Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 22.07.2024 : Date of Judgment: 30.07.2024 S.S. Mishra, J. The present Criminal Revision filed by the petitioner under Section 401 of Cr.P.C. is directed against the judgment and order dated 29.11.2011 passed by the learned Sessions Judge, Nayagarh in Criminal Appeal No.48 of 2010, whereby the judgment of conviction and order of sentence passed by the learned J.M.F.C., Khandapara in G.R. Case
Legal Reasoning
No.43 of 2004 (T.R. No.408/2004) has been confirmed. 2. The prosecution case in brief is that the informant Sandhyarani Mohapatra got married to Manoj Kumar Panda on 23.06.2003 as per Hindi customary rituals. In their marriage, the bride party had given gold and silver ornaments and other household articles along with Rs.50,000/- in cash to the groom party. After their marriage, groom’s family members demanded Rs.10,000/- from the parents of the informant towards dowry. On her inability, the accused persons subjected her to cruelty by assaulting her and not providing her food. Ultimately, the accused persons drove the informant from their house as she failed to fulfill their demand. On 03.01.2004, the informant left her matrimonial house and stayed at her parental house since then. The informant reported this fact to the Superintendent of Police, Nayagarh on 11.02.2004, which was treated as F.I.R. and the case was registered. After the investigation, charge sheet was submitted against the accused persons for commission of offences punishable under Sections 498- A/406/34 of the IPC read with Section 4 of the D.P. Act. Page 2 of 13 3. To bring home charges, the prosecution had examined as many as nine witnesses and exhibited three documents. The plea of defence was that of complete denial. In proof of their defence, no witness had been examined. 4. The learned trial Court after analyzing the entire evidence on record, found that the co-accused persons except the present petitioner were not guilty and acquitted them from all the charges. The petitioner was also acquitted from the charge under Section 406 of the I.P.C., but he was found guilty of the offence under Section 498-A of I.P.C. read with Section 4 of the D.P. Act and sentenced him to undergo R.I. for one year and to pay a fine of Rs.2,000/-, in default, to further undergo S.I. for three months in the first count and to undergo R.I. for one year and to pay a fine of Rs.2,000/-, in default, to further undergo S.I. for three months on the second count and all the sentences were directed to run concurrently. 5. The judgment of conviction and order of sentence dated 04.11.2010 passed by the learned J.M.F.C., Khandapara in G.R. Case No.43 of 2004 (T.R. No.408/2004) was called in question by filing Page 3 of 13 Criminal Appeal No.48 of 2010 before the Court of the learned Sessions Judge, Nayagarh by the petitioner. The appeal failed. 6. Having failed in his appeal,the petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Criminal Revision Petition. 7.
Legal Reasoning
Heard Mr. P.C. Jena, learned counsel for the petitioner and Mr. D. Biswal, learned Additional Standing Counsel for the State. 8. Perused the impugned judgments and orders of conviction and sentence passed by both the Courts below against the petitioner and meticulously evaluated the evidence on record. 9. The petitioner along with his other family members were subjected to trial of the charges punishable under Sections 498-A/406/34 of the IPC read with Section 4 of the D.P. Act. 10. The victim (P.W.3) was the informant, who was the wife of the present petitioner. P.W.1 is the mother and P.W.2 is the father of the informant, who were examined to establish the physical and mental torture meted out to the informant for want of dowry. P.Ws.4,5,6 & 7 were the independent witnesses examined to establish regarding the Page 4 of 13 marriage and other occurrence incidental to the marriage between the petitioner and informant. 11. The learned trial Court relied upon the testimony of P.Ws.1,2,3 & 9 to find prove against the accused regarding commission of offence. The following finding was recorded by the learned trial Court: the father of “Prosecution has relied upon the testimony of P.W.1, P.W.2, P.W.3 and P.W.9 to find the proofs against the accused. Perused the case record and evidence rendered by the above witnesses, along with the statement of the accused persons U/s. 313 of C.r.P.C. No doubt P.W.1 the mother of the informant Sandhyarani Mohapatra, P.W.2 informant Krushna Ch. Mohapatra and P.W.3 Sandhyarani Mohapatra herself is to speak in favour of their marriage. But along with their statement this court verified the statement of P.W.5- Bhagaban Barik and P.W.7 Kuntala Panda who are also corroborating the statement of P.W.1,2 and 3 tasking the marriage of informant Sandhyarani Panda with the accused Manoj Panda. To find much evidence on this point this court also verified the statement of the P.W.9 Jyoti Prakash Panda, who is the I.O. of this case. Who have stated in his examination –in-chief in Para-3 that in course of his investigation he had seized the marriage invitation card of Sandhyarani Panda and Manoj Kumar Panda, which is exhibited as M.O.I. So also he had seized a joint Photograph of Manoj Kumar Panda and Sandhyarani Panda which is marked as M.O.II. These documents appear as proof of marriage and joint stay of the parties as husband and wife. So this Court finds no reason to disbelieve the statement of the I.O. P.W.9 on this point, and admits of the fact that P.W.3 and accused Manoj Kumar Panda are wife and husband and there has been a legal marriage of their’s as per customary rituals. Not only the statement in the record, but also this Court verified the statement of all the accused on the point of marriage of the parties. All of them along with Manoj Kumar panda have admitted the fact that Page 5 of 13 Sandhyarani Panda is his wife. So it is held that there is no confusion taking the marriage of the parties and informant Sandhyarani Panda having the status of a married woman. In the instant case as discussed above there is a good amount of evidence hitting this provision in this record. As stated above P.W.1 and P.W.2, and P.W.3 very clearly mentioned that, the accused persons had demanded Rs.50,000/- (fifty thousand) along with other household articles at the time of negotiation of P.W.3 and accused Manoj Panda, for the consideration of their marriage. P.W.1 has stated in her cross- examination Para-3 that “cash of Rs.45,000/- (forty-five thousand) had been paid by my husband to Manoj Panda why untying Hastaganthi”. P.W.2 has stated that on 15th Feb. 2003, I paid Rs.20,000/- (twenty thousand) to the accused” and this transaction was made prior to the marriage of P.W.3 and the accused Manoj Panda”. This statement proves that prior to the marriage of the parties, there was monetary transaction between the parties. As because the marriage of the parties was solemnized on 23rd June, 2023. In addition to these evidence of demands of dowry by the accused persons, there are subsequent instances, when the parents of P.W.3 have rendered money to the accused.” 12. Appreciating and analyzing the entire evidence on record, the learned trial Court recorded an acquittal in favour of all the family members of the petitioner of the charges leveled against them. However, the present petitioner was found guilty of the offence punishable under Section 498-A of the IPC read with Section 4 of the D.P. Act. At the same time, he was acquitted of the alleged offence punishable under Section 406 of the IPC. Accordingly, the petitioner was sentenced to R.I. for a period of one year and to pay a fine of Rs.2,000/-, in default to Page 6 of 13 further undergo S.I. for three months for the first count and R.I. for one year and to pay a fine of Rs.2,000/-, in default to further undergo S.I. for three months in the second count. 13. Aggrieved by the judgment of conviction and order of sentence, the petitioner unsuccessfully filed Criminal Appeal No.48 of 2010 before the Court of learned Sessions Judge, Nayagarh. Vide judgment dated 29.11.2011, the learned appellate Court rejected the appeal in toto while confirming the conviction and sentence awarded against the petitioner. 14. While the matter was taken up on 24.01.2012, this Court released the petitioner on bail and passed the following order: “Misc. Case No.60 of 2012 This is a petition for bail. The petitioner has been convicted for the offence under Section 498-A of I.P.C. read with Section 4 of the D.P. Act by learned J.M.F.C., Khandapara in G.R. Case No.43 of 2004 was sentenced to undergo R.I. for one year and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo S.I. for three months more on each count vide judgment and order dated 4.11.2010. Being aggrieved with the said judgment and order, the petitioner preferred Criminal Appeal No.48 of 2010 before the learned Sessions Judge, Nayagarh, who without hearing learned counsel for the parties dismissed the appeal and upheld the judgment and order as passed by the learned trial court vide judgment and order dated 29.11.2011. Being dissatisfied with the said confirming judgment and order, the Page 7 of 13 petitioner preferred CRLREV No.40 of 2012 before this Court out of which the present Misc. Case arises. Learned counsel for the petitioner submits that relying on the evidence of the aforesaid witnesses, whose evidence differs from one another, the trial court convicted the petitioner for the aforesaid offences and sentenced him thereunder. The appellate court without hearing learned counsel for the appellant or appointing any amicus curiae suo motu perused the appeal memo and upheld the judgment and order of the trial court illegally. Regard being had to the submission of learned counsel for the petitioner, prayer for bail is allowed. Let the petitioner be released on bail of Rs.20,000/- (twenty thousand) with one surety solvent for the like amount to the satisfaction of the learned J.M.F.C, Khandapara in the aforesaid case.
Decision
The Misc. Case is disposed of. Urgent certified copy of this order be granted on proper application.” 15. Mr. P.C. Jena, learned counsel for the petitioner has pointed out that the informant had filed Civil Suit being MAT Civil Suit No.141 of 2008 in the Court of learned Civil Judge (Senior Division), Nayagarh under Section 13 of the Hindu Marriage Act, 1955. In the said suit, the informant sought for dissolution of marriage on the ground of cruelty and desertion. It was contended that she had made exactly similar allegation against the petitioner in the said Suit and sought for dissolution of marriage. However, the learned Civil Court refused to accept her evidence and disbelieved the evidence brought on record. Page 8 of 13 Eventually, the Suit was dismissed inter alia returned the following finding: “11. Adverting back to the case at hand on her own admission P.W.1, the petitioner, left her marital home just after 1 ½ months after the marriage. Her evidence and so also that of P.W.2 are omnivous in return as regards the infliction of cruelty by the respondent and his family members. Though she has stated about the pouring of kerosene by the respondent and her in laws on her for committing murder, she has not stated about the specific date in respect of the same. From the evidence of P.W.1, the petitioner, it is not forthcoming as to whether the conduct of the respondent alleged to have been charged by her as cruelty is of such a character as to cause in the mind of the petitioner is reasonable apprehension that it will be harmful or injurious for her to live with the respondent. In a proceeding u/s. 13 of the Hindu Marriage Act, the institution of marriage has not to be disturbed with lightly and for asking the same has not to be taken by the Court so as to satisfy itself that the petitioner who has come to the court for annulment of his or her marriage with the respondent on the ground of cruelty has proved the same to the satisfaction of the court. In the Authority decided in (2002) 22 OCR (S.C.) 692 quoted (supra) it was held, “Grounds for divorce-Cruelty-Mental Cruelty-After amending Act 68 of 1976, Cruelty does not necessarily involve life-Threatening conduct or conduct resulting in bodily injury or damage to health or conduct which give rise to a reasonable apprehension of danger to life limb or health-Solitary incidents or occasional outbursts of anger or rudeness would not amount to cruelty.” Further in the Authority decided in 1997 (J) OL”R 317 quoted supra it was held that “Husband applying for dissolution of marriage by a decree of divorce on the allegation of ill-treatment by wife- statement of the husband is bold and no other evidence adduced-Though several allegations made, no proof-Decree for divorce cannot be passed.” Page 9 of 13 It is the specific evidence of the petitioner that on 28.12.2003 the respondent left her marital abode i.e. the rented house situated at Khandapara and after waiting for about 6 days on 3.1.2004 the petitioner left the rented house along with her father. It is not forthcoming from the evidence of the petitioner that she had taken any effort to save her marriage. When the petitioner, as it appears from the materials in the record is also equally responsible for such a sorry state of affairs, only the respondent cannot be held guilty of non-consummation of marriage. Furthermore it is the averment made in the petition and so also the evidence of P.W.1 and P.W.2 that at the time of marriage articles of dowry were given. The aforesaid averment of the petitioner has been strongly refuted by the respondent. However, it is incumbent upon the persons giving and taking articles to prepare a list of articles to be given and in accordance with rule 2 of the Dowry Prohibition (Maintenance of list of presents to the bride and bride groom) Rules, 1985 which has not been done so and as such no such document to that effect has been produced and proved by the petitioner n this court. In view of such lacuna in the case of the petitioner, taking a holistic view of the matter at hand and in my earnestly considered view the respondent cannot be held liable for non- consummation of the marriage if any and accordingly issue no.3 is decided. Further in view of the discussion made above it cannot be stated that the respondent treated the petitioner with cruelty and accordingly issue no.4 is answered in the negative against the petitioner.” 16. Mr. Jena therefore, contended that the finding of the Civil Court is binding on the criminal Court. The informant while having miserably failed to prove the element of cruelty meted out to her before the Civil Court cannot sustain her case for maintaining the conviction against the petitioner. Page 10 of 13 17. I have gone through the evidence on record and perused the findings of the Civil Court. The learned Civil Judge (Senior Division), Nayagarh vide its judgment dated 21.12.2010 has dismissed the Suit by returning various findings. But before the Civil Court dismissing the Suit, the learned trial Court vide its judgment dated 04.11.2010 had already convicted the petitioner for the alleged offences. 18. The learned appellate Court has also appreciated the evidence on record meticulously and concurred with the finding of the learned trial Court. The evidence which has come on record through P.Ws.1,2,3 & 4 are impeccable and trustworthy. Therefore, there is no scope for this Court to give any indulgence in the matter while exercising the revisional jurisdiction. Therefore, the Revision Petition fails insofar as recording of conviction against the petitioner under Section 498-A of the IPC read with Section 4 of the D.P. Act is concerned. At this stage, Mr. Jena submitted that in view of the fact that the alleged incident had taken place in the year 2003 and at that point of time, the petitioner was aged about 35 years and the petitioner and informant are staying separately Page 11 of 13 after one and half year of their marriage on 23.06.2003, lenient view should be taken against the petitioner. 19. Therefore, taking into consideration the fact that the incident had taken place more than two decades back and the present Revision Petition is pending since 2012, I am inclined to extend the benefit of P.O. Act to the petitioner. Hence, this Court directs the petitioner to be released under Section 4 of the Probation of Offenders Act for a period of one year on his executing bond of Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the petitioner shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year. 20. So far as the fine amount awarded by the Court below is concerned, the fine of Rs.2,000/- is increased to Rs.20,000/- (Rupees Twenty Thousand), in default of payment of fine, to undergo further R.I. for two months. The fine of Rs.20,000/- to be deposited by the petitioner Page 12 of 13 shall be disbursed to the victim as per the provision of Section 357 of Cr.P.C as compensation. 21. The Criminal Revision is accordingly disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 30th July, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA,CUTTACK Date: 30-Aug-2024 12:06:33 Page 13 of 13