The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA NO.316 OF 1995 (From the judgment and order dated 22nd December, 1995 passed by learned Asst. Sessions Judge, Patnagarh in S.C. No.90/8 of 1995. Premananda Dip and others … Appellants -versus- State of Odisha … Respondent Advocates appeared in the case through hybrid mode: For Appellants : Mr.Amitav Tripathy, Advocate -versus- For Respondent: Mr.S.K.Mishra, Addl. Standing Counsel --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 16.03.2023. CRA No.316 of 1995 Page 1 of 11 Sashikanta Mishra,J. The Appellant No.2 (Kunja Dip), it is submitted, has died in the mean time. The appeal against him stands abated.
Facts
2. The Appellants have challenged the judgment passed by learned Asst. Sessions Judge, Patnagarh in S. C. No.90/8 of 1995 whereby they were convicted for the offence under Sections 498-A/306/34 I.P.C. and sentenced to imprisonment for three years under Section 498-A and 8 years under Section 306 of I.P.C. with fine of Rs.1,000/- on each count, in default, to undergo further R.I. for six months and one month respectively. Both the sentences are directed to run concurrently. 3. The Prosecution case, in brief, is that on 28th June, 1994 Premanand Dip (Appellant No.1) lodged a report before the Officer-in-charge of Belpada P.S. to the effect that the wife of his younger brother had committed suicide by hanging on the previous night i.e. on 27th June, 1994. On the basis of this report U.D. Case No.10/1994 was registered. Again on 7th CRA No.316 of 1995 Page 2 of 11 February, 1995 one Shankar Majhi lodged F.I.R.to the effect that his daughter, who had been given in marriage to Baishnaba Dip (Appellant No.3) was subjected to cruelty frequently for which she used to come and stay in her parental home. On 27th June, 1994 he received information that his daughter had died and accordingly, when he went to the village of the accused persons he found that the dead body had been cremated. Basing on such report Belpada P.S. Case No.7/1995 was registered under Section 498- A/34 of I.P.C. followed by investigation. Upon completion of investigation charge sheet was submitted against the accused persons also under Section 498- A/34 of I.P.C. However, the trial Court considering the materials on record framed charge under Section-498- A/306/34 of I.P.C. 4. The accused persons, apart from denying any involvement have taken the plea that the deceased was depressed because of absence of any child and therefore, had committed suicide. CRA No.316 of 1995 Page 3 of 11 5. To prove its case the prosecution examined 8 witnesses of whom, P.W.1 is the informant, P.Ws.2,3,6, and 7 are villagers, P.W.4 is the autopsy surgeon and P.W.8 is the I.O. Prosecution also proved five documents. The defence examined two witnesses from its side. 6. After considering the evidence on record, the trial Court held that the offences under Section 498-A/306 I.P.C. were clearly established and therefore, convicted the Appellants and sentenced them as already stated herein before.
Legal Reasoning
13. It is well settled that the most essential ingredient of the offence is instigation. Unless, it is proved that the accused had committed such an act which would fall within the mischief of abetment as defined under CRA No.316 of 1995 Page 8 of 11 Section 107 I.P.C., it cannot be held that he had instigated the deceased. The word ‘instigate’ means a positive act or conduct on the part of a person to incite, urge, provoke etc. another person to do something. In the case at hand, the evidence is completely silent as to any such conduct of the accused persons. This Court has already held that the evidence relating to the so-called torture of the deceased is not worthy of acceptance. If such evidence is taken away, then there remains nothing to even remotely suggest that the accused persons had instigated the deceased to such extent as would lead her to commit suicide. 14. In the absence of any evidence in this regard from the side of the prosecution, the explanation offered by the defence can also be considered. In this regard, it is well settled that the principles of preponderance of probability are to be applied to weigh the evidence adduced by the defence. In this case, the defence has examined two witnesses of whom, D.W. 2 categorically CRA No.316 of 1995 Page 9 of 11 stated that the deceased used to visit their house every now and then and addressed him as uncle. Whenever he asked she informed that she is living well in her in- laws house and also that she is feeling sad for not being blessed with any children. This is a plausible explanation having regard to the socio-cultural background of the parties where absence of child can result in mental depression of a woman. The trial court has branded the defence witnesses as liars, but this Court finds that at least a reasonable explanation has been offered by the defence through them, which can explain the commission of suicide by the deceased more so when the prosecution has not come forward with acceptable evidence to support its theory. This Court therefore, finds the judgment of the trial Court to be unacceptable. On the contrary, it is seen that there is no evidence worth the name to support the allegation of cruelty within the meaning of Section 498-A of I.P.C. as also of instigation/abetment required to establish the offence under Section 306 of I.P.C. The judgment of conviction therefore, becomes vulnerable. CRA No.316 of 1995 Page 10 of 11 15. For the foregoing the reasons therefore, this Court has no hesitation in holding that the impugned judgment cannot be sustained. Resultantly, the appeal is allowed. The impugned judgment of conviction and sentence is hereby set aside. The Appellants be set liberty if they are not required to be detained in connection with any other case. Their bail bonds be discharged. …………….…….……….. (Sashikanta Mishra) Judge Ashok Kumar Behera CRA No.316 of 1995 Page 11 of 11 CRA No.316 of 1995 Page 12 of 11 CRA No.316 of 1995 Page 13 of 11 CRA No.316 of 1995 Page 14 of 11
Arguments
7. Heard Mr. A. Tripathy, learned counsel appearing for the Appellants and Mr. S.K.Mishra, learned Addl. Standing Counsel for the State. 8. Assailing the impugned judgment of conviction, Mr. Tripathy has urged that there being no evidence whatsoever of the fact that the death of the deceased had occurred within 7 years of her marriage, the presumption drawn by the Trial Court under Section CRA No.316 of 1995 Page 4 of 11 113-A of the Evidence Act is entirely wrong. He further argues that there is inordinate delay in lodging of the F.I.R. inasmuch as the U.D .Case having been registered on 28th June, 1994, there is no explanation as to why the F.I.R. was lodged almost 8 months thereafter. Mr. Tripathy further contends that reliance placed by the Trial Court on the version of P.Ws.1,2 and 3 is entirely unacceptable in view of the fact that their statements relating to cruelty have been taken in contradiction through the I.O. 9. Mr. S.K.Mishra, on the other hand, has supported the findings of the Court below by arguing that on the face of clear evidence regarding cruelty being meted by the accused persons to the deceased, the offence under Section 306 of I.P.C. is otherwise made out even if the presumption under Section 113-A of Evidence Act is not drawn. He further argues that the discrepancies in evidence pointed out on behalf of the Appellants are not such as can be treated as fatal to the prosecution case. Since the evidence on the whole suggests that the CRA No.316 of 1995 Page 5 of 11 accused persons had by their conduct instigated the deceased to end her life, the impugned judgment must be held to be correct without warranting any interference whatsoever. 10. This Court finds that Appellant No.1 being the elder brother of accused Baishnaba Dip (Appellant No.3 and husband of the deceased) reported the death of the deceased at the P.S. at the earliest possible opportunity i.e. on 28th June, 1994. P.W.1, the father of the deceased lodged F.I.R. on 7th February, 1995 i.e almost after a gap of 8 months. In his evidence, he has stated that since neither the Police nor the accused persons had sent any intimation to him regarding the death of his daughter and he suspected foul play and intimated this to the Women’s Organization at Bhubaneswar. He does not say which Women’s Organization he had approached in this regard. Secondly, no one was examined from the said Women’s Organization to corroborate the statement. That apart, it is otherwise borne out from the evidence that the CRA No.316 of 1995 Page 6 of 11 father of the deceased came to know about the death of his daughter on the next day and had also visited her matrimonial house, but found that she had been cremated. If such is the case, then it does not stand to reason as to why he would lodge an F.I.R. 8 months thereafter. There is thus, some force in the submission of Mr. Tripathy that inordinate delay in lodging the F.I.R. has gone unexplained. 11. As regards the allegation of subjecting the deceased to cruelty, it is in the evidence of P.W.1 that in the first two years after her marriage, the deceased lived peacefully in her in-laws house and thereafter she was tortured by the accused persons. She was not even given food and clothes for which she used to come back to their house and showed reluctance to go back to her in-laws house. The same is also in the evidence of P.Ws.2 and 3. 12. However, in course of cross-examination and being confronted by the defence, the I.O. admitted that P.Ws.1,2 and 3 had not stated such facts before him CRA No.316 of 1995 Page 7 of 11 during investigation. Thus, no reliance can be placed on the version of such witnesses relating to the alleged cruelty meted to the deceased. That apart, it has not been clarified as to for what reason the accused persons were torturing her. In fact, according to P.W.1 the deceased used to tell him about the torture meted out to her by the accused persons, but he stops at that and does not clarify as to what exactly the deceased had told her. This Court is otherwise not very inclined to consider whether the marriage took place within 7 years or not because the act of instigation can be otherwise established to bring home the offence under Section 306 of I.P.C., which reads as follows; “306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be imprisonment of either punished with description for a term which may extend to ten years, and shall also be liable to fine.”