The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.111 of 2005 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Arjun Malik ……. Appellant -Versus- State of Odisha ……. Respondent For the Appellant : Mr. Prasanna Kumar Mishra, Advocate For the Respondent : Ms. Subhalaxmi Devi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 15.07.2025 :: Date of Judgment: 31.07.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant under Sections 374 of the Cr. P.C., is directed against the judgment and order dated 04.03.2005 passed by the learned Sessions Judge, Keonjhar in S.T. Case No.160 of 2003, whereby the learned trial Court while acquitting other accused persons of all the charges and also acquitting the sole appellant in the present case of the charges under Section 302/304B/176/201/34 of I.P.C. read with Section 4 of the D.P. Act, has convicted the appellant only for the offence under Section 498-A of I.P.C. On that count, the appellant has been sentenced to undergo R.I. for two years. 2.
Legal Reasoning
Heard Mr. Prasanna Kumar Mishra, learned counsel for the appellant and Ms. Subhalaxmi Devi, learned Additional Standing Counsel for the State. 3. The criminal law was set to motion against the accused person on the basis of an F.I.R. lodged by one Krushna Chandra Dash, the father of the deceased inter alia alleging therein that his daughter Kabita Dash (deceased) was given in marriage with the appellant Arjun Mallik and at the time of marriage, as per the demand Rs.15,000/- and other articles were given to the accused persons. It is further alleged that after the marriage, the accused persons demanded further money as dowry and which the informant could not fulfill, as a result of which, the deceased was ill-treated by the accused persons. It is further case of the prosecution that on 20.01.2002, one Sridhar Mallik gave information to Page 2 of 16 the informant and his family members that their daughter has died and on receiving such information, the informant along with others went to the house of the accused persons and enquired about the dead body of the deceased. Surprisingly, the accused persons told that the dead body has already been cremated and they have assigned the reasons of death to be natural. 4. On the basis of such F.I.R., the investigation was carried out and the police filed charge-sheet for the alleged commission of offences punishable under Sections 498-A/304-B/302/201/176/201/34 of I.P.C. read with Section 4 of the D.P. Act. Accordingly, the learned trial Court framed charge against the appellant and other four family members of the appellant for the charges as mentioned above. 5. The accused persons took a stance of denial. The accused person examined one Laxmidhar Mallick, who was cited as a prosecution witness; however, the prosecution did not produce him. It is also noteworthy to mention that in the charge-sheet, as many as 17 witnesses were cited, out of whom, the prosecution has chosen only three witnesses and not examined many of the witnesses including the Investigating Page 3 of 16 Officer. Out of them, P.W.1 is the mother of the deceased, P.W.2 is the cousin of the deceased and P.W.3 is the brother of the deceased. The prosecution has relied upon the F.I.R. which has been exhibited. In this case, the Investigating Officer has not been examined. 6. Basing on the oral testimony of the aforementioned three witnesses, the learned trial Court has arrived at a conclusion that the prosecution has miserably failed to prove the guilty of all the accused persons in so far as the offences under Section 302/304-B/176/201/34 of I.P.C. read with Section 4 of the D.P. Act and acquitted all the accused persons except the appellant who was found guilty of offence punishable under Section 498-A of the I.P.C. On that count, the learned trial Court has awarded the sentence of two years. 7. Being aggrieved by the judgment of conviction and order of sentence passed by the learned Sessions Judge, Keonjhar, the present appeal has been preferred by the sole appellant, who was the husband of the deceased. Page 4 of 16 8. Mr. Mishra, learned counsel for the appellant has submitted that this is a case of no evidence. The three witnesses those who are directly related with the deceased being interested witnesses have deposed to support the prosecution case, however, the contradictions in their evidence are writ large. Therefore, the learned trial Court has discarded their evidence which would establish from the fact that by not relying upon the testimony of these three witnesses, all the accused persons have been acquitted. He further submitted that after having acquitted the appellant for offence under Section 4 of the D.P. Act, the fact of demand of dowry has not been believed and in the same breathe the learned trial Court has stated that cruelty was meted out to the deceased by the appellant for want of dowry. 9. Mr. Mishra, learned counsel for the appellant further submitted that the prosecution in the present case has deliberately withheld the vital witnesses cited in the charge-sheet. One out of them, have been examined by the defence to demolish the prosecution case, which was not well appreciated by the learned trial Court. The learned trial Court has only gone on the evidence of three witnesses those who are Page 5 of 16 interested and related to the deceased. He further submitted that although non-examination of the Investigation Officer is not fatal to the prosecution, however, if non-examination of the I.O. lead to cause prejudice to the accused, in that case, the conclusion drawn by the learned trial Court may not sustain. Mr. Mishra, has also extensively read out the evidence of three witnesses and pointed out the contradictions in their evidence. 10. To counter the submission made by Mr. Mishra, learned counsel for the appellant, Ms. Subhalaxmi Devi, learned Additional Standing Counsel for the State submitted that for the purpose of establishing the offence under Section 498-A of the I.P.C., there are two basic ingredients required to be fulfilled, those are:- (a) the accused must be a husband or relative of the husband of the women concerned and (b) that the person had subjected such women to cruelty. In this case, upon appreciating the evidence on record, the trial Court has rightly concluded that the accused-appellant, being the husband of the deceased, had subjected his wife to immense physical and Page 6 of 16 mental cruelty and has accordingly convicted him for the said offence as the ingredients stood satisfied through the evidence. 11. Ms. Subhalaxmi Devi, learned counsel for the State has cited that enough material has come on record to draw the conclusion that the appellant was not only harassing the deceased but also was involved with some other women. That being the evidence, the case of the prosecution is directly covered by the judgment in the case of Laxman Ram Mane vrs. State of Maharashtra reported in (2010) 13 SCC 125 wherein the Hon’ble Supreme Court has held that in concerning to Section 498-A and 306 of I.P.C. about the mental torture in the form of illicit relationship of a married man with another woman amounting to cruelty under Section 498-A of I.P.C. 12. On the contrary, Mr. Mishra, learned counsel for the appellant has relied upon the judgment of the Hon’ble Supreme Court in the case of State of Andhra Pradesh vrs. M. Madhusudan Rao reported in (2008) 15 SCC 582. In the said judgment, the Hon’ble Supreme Court has observed that harassment simpliciter is not cruelty. Only when such harassment is committed for the purpose of coercing a woman or any Page 7 of 16 other person to meet an unlawful demand or property etc. alone would amount to cruelty punishable under Section 498-A of I.P.C. Therefore, Mr. Mishra, submitted that since the learned trial Court has disbelieved that there was any demand of dowry, therefore, mere harassment simpliciter would not attract the offence under Section 498-A of I.P.C. in absence of demand of dowry. 13. To counter the argument of Mr. Mishra, learned counsel for the appellant that non-examination of the I.O. of the present case is fatal to the prosecution, Ms. Subhalaxmi Devi, learned counsel for the State has relied upon the following judgments:-