The High Court · 1991
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.287 of 1995 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Pabitramohan Swain and Another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. Pratik Nayak, Advocate For the Respondent : Mr. Sarathi Jyoti Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 07.08.2025 : Date of Judgment: 28.10.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellants under Section 374 of the Code of Criminal Procedure, is directed against the judgment and order dated 23.09.1995 passed by the learned 2nd - Additional Sessions Judge, Cuttack in Sessions Trial No.206/35 of 1994. By the impugned judgment, the learned Trial Court convicted the accused-appellants for the offences punishable under U/s.4 of the D.P. Act, U/s.498-A & U/s.304-B of the I.P.C. (herein after IPC for brevity) and sentenced the appellants to undergo rigorous imprisonment for one year for the offence U/s.4 of D.P. Act, further R.I. of two years and ten years respectively for offence U/s 498-A and 304-B of IPC. However, the court below directed the sentences to run concurrently. During pendency of the present appeal, the appellant no.2 Ragunath Swain expired. Therefore, vide order dated 10.03.2023, the appeal qua the appellant no.2 stood abated in absence of any application under Section 394 Cr.P.C. moved by his LRs or next friend. Therefore, the present appeal is confined to the appellant nos.1 and 3. 2. Heard Mr. Pratik Nayak, learned Counsel appearing for the appellants and Mr. S.J. Mohanty, the learned Additional Standing Counsel appearing for the State. FACTUAL MATRIX 3. Accused Raghunath Swain and Kanchan Swain are the father and mother, respectively, of accused persons Pabitra Mohan Swain, Mamata Swain (also known as Mami), and Manorama Swain (also known as Rama). On 9th July 1991, the marriage of accused Pabitra Mohan Swain Page 2 of 23 was solemnized with the deceased, Kuni, who was the daughter of P.W.2. During the marriage negotiation, accused Raghunath Swain demanded several articles as dowry, including a T.V. set, wristwatch, wall clock, fan, gold jewellery, bell-metal utensils, wooden furniture, and a cash amount of ₹20,000/-. P.W.2 managed to pay ₹9,000/- in two instalments along with the articles demanded but was unable to pay the balance amount of ₹11,000/- due to financial constraints. After the marriage, Kuni was subjected to cruelty and harassment by the accused persons in connection with the demand for the remaining amount. On 22nd November 1993, Kuni died in her matrimonial home due to manual strangulation, which was homicidal in nature. On the same day at about 5:30 P.M., P.W.1, the brother of the
Legal Reasoning
deceased, lodged a First Information Report (Ext.1) at Athagarh Police Station, setting the criminal law into motion. Subsequently, the police conducted the investigation and submitted a charge sheet against the accused persons. Upon denial of the charges, the accused faced trial. Page 3 of 23 4. The prosecution, in order to establish its case, examined six witnesses. P.W.1 is the brother of the deceased and the informant of the case. P.W.2 is another brother of the deceased. P.W.3, is the father of the deceased. P.W.4, Ramakanta Tripathy, was the priest, who solemnized the marriage ceremony of the deceased with accused Pabitra Mohan Swain. P.W.5 was the Officer-in-Charge of the concerned police station and the Investigating Officer of the case. P.W.6 was the doctor, who conducted the post-mortem examination over the dead body of the deceased. The defence examined none. JUDGEMENT OF THE TRIAL COURT 5. The learned Trial Court, after taking into account the evidence adduced by the prosecution and the defence and upon a detailed analysis of the materials available on record, arrived at the following findings: “18. The D.W.1 has stated that on the request of accused Pabitra Mohan he brought his (Pabitra's) deceased wife kuni from the residence of her parents to Athagarh hospital. But in the cross-examination he was caught napping being unable to state if Kuni was suffering from any ailment and in which connection she was taken to the hospital. He has further admitted that the Sarpanch of their Panchayat had given a call for Ambulance and while he was standing in front of the Panchayat Office in his village (Kulailo) accused requested him to bring Kuni to Athagarh Page 4 of 23 it is unlikely hospital from his father-in-law's house situated at a distance of 7 KMs, therefrom. As Kuni died out of manual strangulation by neck, that accused Pabitramohan and D.W.l rest contented by bringing Kuni from the house of P. Ws.1,2 and 3 to Athagarh hospital without informing Police. Therefore, the evidence of D.W.l does not stand to reason. The Investigating Officer (P.W.5) in paragraph-19 of his deposition has stated that Kuni was brought dead to the hospital by accused Pabitramohan and D.W.1. which goes to establish that Kuni was brought dead to the hospital from the house of accused persons. 19. It is thus manifest that kuni died a homicidal death in the house of the accused persons. It is within special knowledge of the accused persons as to who committed murder of Kuni. There is no ocular evidence regarding murder. As discussed supra, the circumstantial evidence only involving accused 'Dowry death' Pabitramohan, Raghunath and Kanchan. speaks of The learned Trial Court, on a careful appraisal of the circumstantial evidence, observed that although there was no direct evidence to pinpoint the actual perpetrator of the act of strangulation, the circumstances clearly established that the deceased had met with a homicidal death within her matrimonial home and within the proximity and control of the accused persons. Applying the principle embodied under Section 106 of the Indian Evidence Act, the Court concluded that the burden lay upon the accused to explain the circumstances leading to the death of the deceased. The failure of the accused to offer any Page 5 of 23 satisfactory explanation, coupled with the consistent evidence of cruelty and harassment in connection with dowry demands, led the Court to the inevitable inference that the death was a “dowry death” as contemplated under Section 304-B of the Indian Penal Code. “20. In the result, I find all five accused persons not guilty under section 302 of the Indian Penal Code and accused Mami alias Mamata Swain and Rama alias Mano rama Swain not guilty under section 4 of the Dowry Prohibition Act and under section 498-A and 304 B of the Indian Penal Code and acquit them thereof.. under Section 235 (1) of the Code of Criminal Procedure, Accused Mami alias Mamata Swain and Ramaali as Manorama Swain be set at liberty forthwith. However, I find accused Pabitra Mohan Swain, Raghunath Swain and Kanchan Swain guilty under section 4 of the Dowry Prohibition Act and under sections 498-A and 304- B of the Indian Penal Code and convict them thereunder.” In consequence of the above findings, the learned Trial Court convicted accused Pabitramohan Swain, Raghunath Swain, and Kanchan Swain for the offences punishable under Section 4 of the Dowry Prohibition Act and Sections 498-A and 304-B of the Indian Penal Code, while acquitting the remaining two accused persons of all charges. Aggrieved by the aforesaid judgment of conviction and order of sentence, the accused persons preferred the present appeal before this Page 6 of 23 Court. During the course of hearing, learned counsel appearing for the appellants and the learned counsel for the State advanced elaborate submissions touching upon both factual and legal aspects, which are discussed hereinbelow. SUBMISSIONS BY LEARNED COUNSEL FOR THE APPELLANTS 6.
Legal Reasoning
Learned Counsel for the appellants, while assailing the impugned judgment of conviction and order of sentence, has primarily relied upon three major aspects in support of his arguments. The foremost contention raised relates to the statements of the accused persons recorded under Section 313 of the Code of Criminal Procedure. It is urged that in their respective statements, the accused Pabitra Mohan Swain as well as the other accused persons have consistently and unequivocally stated that the deceased, Kuni, was residing in her paternal home at the relevant time and that her death had taken place there itself. For the sake of clarity and ready reference, a few of the relevant questions and answers recorded during the recording of the accused statement under Section 313 Cr.P.C. are reproduced hereinbelow: Page 7 of 23 “Q.No.13. It further transpires from their evidence that 15 days thereafter Kuni went to her father 's place being escorted by her brother Rasananda (P.W.3) and stayed there for 9 months during which she complained that she was being tortured by you and and other accused persons due to non-payment of the balance amount. What do you say ? Ans:- She was there at her Paternal home. XXXX XXXX Q.No.17. It further transpires from their (P.Ws.1,2 & 3) evidence that 8/10 days thereafter Kuni died under suspicious circumstances in your house. What do you say? Ans:- Kuni died at her Paternal home.” 7. It is submitted that all the accused persons, including the husband of the deceased, Pabitra Mohan Swain, have replied in similar terms during their examination, thereby asserting a consistent stand that the death in question did not occur at the matrimonial home but at the paternal home of the deceased. Learned Counsel contended that this version of the accused finds substantial corroboration from the testimony of D.W.1, an independent witness, who stated as follows: “2. About 2 years back I had brought the deceased wife of Pabitra to Athagarh hospital from the residence of his father at Anandapur. 3. The wife of Pabitra was residing in her father's house after the marriage.” Page 8 of 23 8. It is further contended that the statement of D.W.1, being that of an independent witness without any vested interest in the case, reinforces the defence version that the deceased was at her paternal home during the relevant period. Learned Counsel further submitted that this stand also finds strong corroboration from the evidence of the Investigating Officer (P.W.5), who, in his deposition, stated that he found the accused and D.W.1 at the hospital and that they had brought the deceased there. The I.O. has stated thus: “19. My investigation revealed, that Kuni was brought dead to the hospital by her husband, along with Pitambar Mohanty of Kulailo.” 9. Learned Counsel for the appellants therefore contended that a conjoint reading of the statements of the accused persons, the testimony of D.W.1, and the deposition of the Investigating Officer clearly establishes that the death of the deceased occurred at her paternal home and not at the house of the accused persons. It is further argued that the prosecution witnesses, particularly P.Ws.1, 2, and 3, are close relatives of the deceased and therefore interested witnesses, whose testimonies Page 9 of 23 cannot be relied upon in isolation without strong corroboration from independent sources. 10. It is also emphasized that there is no direct or ocular evidence to prove that the death of the deceased Kuni occurred in the house of the accused persons. In such circumstances, when the evidence regarding the place of death remains uncertain and the prosecution has failed to discharge its burden beyond reasonable doubt, the benefit of such doubt must necessarily go in favour of the accused. Learned Counsel further submitted that it is a settled position of law that the burden of proof lies squarely upon the prosecution, which must establish its case with cogent, consistent, and reliable evidence. In the absence of such proof, the conviction of the accused persons under Section 304-B of the Indian Penal Code cannot be sustained, and they are entitled to an order of acquittal. Page 10 of 23 SUBMISSION BY THE LEARNED COUNSEL FOR THE RESPONDENT-STATE 11. Per contra, learned counsel for the respondent–State has supported the judgment of conviction and order of sentence passed by the learned Trial Court and has contended that the findings therein are well- reasoned, based on cogent evidence, and do not call for any interference by this Court. It is submitted that the prosecution, by leading consistent, reliable, and corroborative evidence through its witnesses, has successfully established that the deceased Kuni died an unnatural and homicidal death in her matrimonial home within seven years of her marriage, as a direct consequence of continuous cruelty and harassment meted out to her by her husband and in-laws in connection with the demand for dowry. 12. It is further contended that the present appeal has been preferred against the judgment and order of conviction dated 23.09.1995 passed by the learned Second Additional Sessions Judge, Cuttack, in Sessions Trial Case No. 206/35 of 1994, wherein the three appellants, namely, Pabitra Page 11 of 23 Mohan Swain (Appellant No.1), Raghunath Swain (Appellant No.2, since deceased), and Kanchan Swain (Appellant No.3), were found guilty of the offences punishable under Section 4 of the Dowry Prohibition Act and Sections 498-A and 304-B of the Indian Penal Code. 13. The learned Trial Court, after an elaborate appreciation of the oral and documentary evidence on record, was pleased to convict and sentence the appellants to undergo Rigorous Imprisonment for one year under Section 4 of the Dowry Prohibition Act, Rigorous Imprisonment for two years under Section 498-A IPC, and Rigorous Imprisonment for ten years under Section 304-B IPC. It is further brought to the notice of this Court that during the pendency of the present appeal, Appellant No.2, Raghunath Swain, expired, and therefore, the appeal, insofar as it relates to him, has abated. Coming to the case of the prosecution, it is submitted that the deceased Kuni was married to accused–appellant Pabitra Mohan Swain on 09.07.1991. During the marriage negotiations, accused Raghunath Swain, the father-in-law of the deceased, had demanded a T.V. set, Page 12 of 23 wristwatch, wall clock, fan, gold jewellery, utensils, wooden furniture, and ₹20,000/- in cash as dowry. It is proved from the evidence that the father of the deceased had paid ₹9,000/- in cash in two instalments and provided the demanded articles, but due to financial difficulties, he could not pay the remaining amount of ₹11,000/-. 14. It is further established from the depositions of material witnesses that soon after the marriage, the deceased was subjected to continuous cruelty and harassment by the accused persons in connection with the demand for the said balance amount. On 22.11.1993, the deceased Kuni died in her matrimonial home as a result of manual strangulation, which was opined to be homicidal in nature. On the very same day, her brother, P.W.1, lodged an F.I.R. at Athagarh Police Station, setting the criminal law in motion. To substantiate the allegations, the prosecution examined six witnesses, while the defence examined two witnesses. The testimonies of P.Ws.1, 2, and 3, who were close relatives of the deceased, are consistent, corroborative, and inspire confidence. Page 13 of 23 P.W.1 – Brahmananda Beura, the brother of the deceased and the informant, has given a detailed account of the dowry demand and the subsequent cruelty inflicted upon his sister. His deposition clearly narrates the sequence of events from the marriage negotiations to the persistent demand for the balance dowry amount, the assault and harassment faced by the deceased, and the eventual information received regarding her death. His testimony categorically establishes that the death occurred in the matrimonial home of the deceased. Similarly, P.W.2 – Minaketan Beura, another brother of the deceased, in paragraphs 4, 5, 8, and 9 of his deposition, has corroborated the version of P.W.1. He has clearly stated that Kuni lived peacefully for a short period after marriage, but thereafter was continuously harassed and assaulted by her husband, father-in-law, and mother-in-law for non- payment of the remaining dowry amount. He has further stated that, despite assurances by the accused side, the cruelty continued, and Kuni ultimately died under suspicious circumstances in her matrimonial home, otherwise than under normal conditions. Page 14 of 23 P.W.3 – Rasananda Beura, the father of the deceased, has also corroborated the evidence of P.Ws.1 and 2. His deposition makes it evident that the deceased was subjected to consistent cruelty and harassment at the hands of her in-laws on account of dowry demands. He further deposed that, shortly before her death, he had visited the matrimonial home where the deceased had complained of being tortured by all the accused persons and that within a few days thereafter, she died in her matrimonial home otherwise than under normal circumstances. From the cumulative effect of the testimonies of these three material witnesses, it is crystal clear that the deceased Kuni died in her matrimonial home within seven years of her marriage and that she was subjected to continuous cruelty and harassment by her husband and in- laws in connection with the demand for dowry. 15. It is, therefore, submitted by the learned counsel for the State that the prosecution has been able to establish all the essential ingredients of Section 304-B IPC (Dowry Death) beyond reasonable doubt, and the learned Trial Court has rightly convicted the appellants for the offences Page 15 of 23 charged. The allegations of the defence that the death took place at the paternal home of the deceased are unsupported by any credible evidence and stand disproved by the clear and consistent testimonies of P.Ws.1, 2, and 3, which are further corroborated by medical and investigative evidence. 16. Accordingly, the learned counsel for the State submitted that the appeal is devoid of any merit, and therefore, the Criminal Appeal is liable to be dismissed, affirming the conviction and sentence imposed by the learned Trial Court. ANALYSIS AND OBSERVATIONS 17. The present matter primarily revolves around the interplay between the testimonies of interested witnesses and that of the independent witness. The core issue before this Court is to assess the relative evidentiary value of these two categories of witnesses and determine which version inspires greater confidence. While the defence places strong reliance upon the statement of D.W.1, the independent witness, along with the Section 313 Cr.P.C. statements of the accused Page 16 of 23 persons, to suggest that the deceased was at her paternal home at the time of death, the prosecution’s case is primarily built upon the depositions of P.Ws.1, 2 and 3; the close relatives of the deceased, who have consistently maintained that Kuni died in her matrimonial home under suspicious circumstances following sustained cruelty and harassment for dowry. 18. Thus, the Court’s consideration necessarily turns upon the credibility, consistency, and corroboration of these two strands of evidence, the interested witnesses, whose relationship with the deceased does not automatically render their testimony unreliable but does call for cautious scrutiny, and the independent witness, whose neutrality must be weighed against the surrounding facts, inherent probabilities, and corroborative evidence available on record. 19. The central question before this Court, therefore, is to assess the evidentiary value of these two categories of witnesses and to determine whether the prosecution has been able to prove its case beyond reasonable doubt. Page 17 of 23 20. In this context, it becomes relevant to refer to the settled legal position as laid down by the Hon’ble Supreme Court on the evidentiary value of related and interested witnesses. In State of Rajasthan v. Kalki1, the Hon’ble Supreme Court observed as follows: “7. As mentioned above the High Court has declined to rely on the evidence of PW 1 on two grounds: (1) she was a “highly interested” witness because she “is the wife of the deceased”, and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot be called an “interested” witness. She is related to the deceased. “Related” is not equivalent to “interested”. A witness may be called “interested” only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be “interested”. In the instant case PW 1 had no interest falsely implicating the respondents.” the real culprit, and in protecting 1 (1981) 2 SCC 752 Page 18 of 23 Similarly, in Sudhakar @ Sudharasan v. State Rep. by the Inspector of Police, Srirangam Police Station, Trichy, Tamil Nadu2, the Hon’ble Supreme Court held as follows: ““17. It would be appropriate to have a look at the legal position with regard to the evidence of related and interested witnesses. In Sarwan Singh v. State of Punjab, (1976 (4) SCC 369), para 10, this Court observed thus: “….. The evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the Court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration.” It is settled law that there cannot be any hard and fast rule that the evidence of interested witness cannot be taken into consideration and they cannot be termed as witnesses. But, the only burden that would be cast upon the Courts in those cases is that the Courts have to be cautious while evaluating the evidence to exclude the possibility of false implication. Relationship can never be a factor to affect the credibility of the witness as it is always not possible to get an independent witness.” Having regard to the aforesaid legal principles, this Court is of the opinion that while the testimonies of P.Ws.1, 2 and 3 being close 2 Criminal Appeal No. 381 of 2018 Page 19 of 23 relatives of the deceased cannot be discarded merely on the ground of relationship, they must nonetheless be subjected to careful scrutiny. In the present case, the testimonies of these witnesses are largely repetitive and not independently corroborated by neutral or medical evidence that conclusively establishes that the death of the deceased took place in her matrimonial home as alleged. 21. On the other hand, the statement of D.W.1, an independent witness, and the Section 313 statements of the accused persons consistently support the version that the deceased was residing in her paternal home at the time of her death and that she was brought to the hospital from there. The testimony of the Investigating Officer and the Doctor that Kuni was brought dead to the hospital by her husband along with Pitambar Mohanty of Kulailo further adds to the element of doubt as to the precise location and circumstances of the occurrence. CONCLUSION 22. In view of the above, and keeping in mind that the prosecution must establish its case beyond reasonable doubt, this Court finds that the Page 20 of 23 evidence on record does not conclusively prove the guilt of the accused appellants under Section 304-B of the Indian Penal Code. Therefore, in light of the inconsistencies and the possibility of an alternative version emerging from the defence, the benefit of doubt must be extended to the accused appellants, who accordingly cannot be held liable under Section 304-B of IPC. 23. Therefore, upon a careful examination of the materials on record, this Court finds that though the prosecution has failed to bring home the charge under Section 304-B of the Indian Penal Code beyond reasonable doubt, the evidence available on record does sufficiently establish the ingredients constituting the offences punishable under Section 498-A of the I.P.C. and Section 4 of the Dowry Prohibition Act. The consistent testimonies of the prosecution witnesses, coupled with the surrounding circumstances, clearly indicate that the deceased was subjected to cruelty and harassment in connection with unlawful demand of dowry by the accused-appellants. Such acts, falling short of the offence of dowry death, nevertheless amount to cruelty within the meaning of Section 498- Page 21 of 23 A of the I.P.C. Hence, the accused-appellants are held guilty for the offences punishable under Section 498-A of the I.P.C. and Section 4 of the Dowry Prohibition Act. 24. With regard to the question of sentence, it has been submitted on behalf of the learned counsel for the appellants that the accused- appellants have already undergone a period of approximately three years in custody. Considering the passage of time since the incident, the present age of the accused-appellants, and the attending circumstances of the case, this Court is of the considered view that further incarceration would serve no fruitful purpose. The object of criminal jurisprudence being both punitive and reformative, the ends of justice would be adequately met if the sentence already undergone by the appellants is treated as sufficient punishment for the offences under Section 498-A of the I.P.C. and Section 4 of the Dowry Prohibition Act. 25. In the light of the aforesaid observations, and having regard to the totality of facts and circumstances, it would be apposite in the interest of justice to reduce the substantive sentence of the accused-appellants to the Page 22 of 23 period already undergone. However, to balance the scales of justice and to acknowledge the loss suffered by the victim’s family, it is deemed fit and proper to impose a fine of ₹20,000/- (Rupees Twenty Thousand) on each of the accused-appellants, payable within one month from the date of this judgment; in default, the concerned appellant shall undergo simple imprisonment for a further period of two months. The fine amount if realised shall be disbursed to the parents of the deceased under the provisions of Section 357 of the Code of Criminal Procedure, 1973. 26. Accordingly, the Criminal Appeal is partly allowed. The conviction of the accused-appellants under Section 304-B of the Indian Penal Code is set aside, while their conviction under Section 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act is upheld. The sentence imposed upon them for the said offences is modified to the period already undergone, subject to payment of fine as directed above. Signature Not Verified The High Court of Orissa, Cuttack. Dated the 28th October, 2025/ Ashok Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 30-Oct-2025 19:41:53 Page 23 of 23 (S.S. Mishra) Judge