The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 239 of 1996 (In the matter of an application under Section 374 of Criminal Procedure Code) Raj Kishore Mallik ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. D.P. Dhal, Senior Advocate
Legal Reasoning
For the Respondent : Mr. Sarathi Jyoti Mohanty, A.S.C CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 07.08.2025 : Date of Judgment: 19.08.2025 S.S. Mishra, J. The present appeal is directed against the judgment and order dated 06.08.1996 passed by the learned Additional Sessions Judge, Jajpur in S.T. No.39/4 of 1996 arising out of G.R. Case No. 780/95 , whereby the present appellant has been convicted U/s. 4 of the Dowry Prohibition Act (herein after D.P. Act for brevity) and was sentenced to undergo R.I. for one year and pay a fine of Rs. 1000/- in default to undergo a further period of R.I. for two months. 2. Prosecution story in brief is that accused Pradeep married deceased Sanjukta on 05.07.1994. Accused Raj Kishore and Labani are the father and mother of accused Pradeep, while Tilotama and Nirmal Prava are his sisters (all are acquitted except the present appellant). It is alleged that at the time of marriage, accused Raj Kishore demanded Rs.25,000/- in cash for purchase of a scooter, along with gold ornaments, furniture, and a colour television. In fulfilment of such demand, Rs.25,000/- in cash, ornaments and furniture were given to accused Pradeep. However, the demand for a colour television could not be met by the brothers of the deceased. Consequently, the accused persons allegedly subjected Sanjukta to cruelty and physical assault in order to coerce her family to meet the said demand. On 07.07.1995, Sanjukta’s dead body was found floating in a river. The prosecution case is that the accused persons caused her death and that soon before her death she was subjected to cruelty and harassment in connection with the unlawful Page 2 of 9 demand of dowry. The accused persons and appellant stood charged U/s.498-A, 304(B), 302 r/w Section 34 of the Indian Penal Code in addition to that Section 4 of the D.P. Act. The accused persons having completely denied the allegations were accordingly put to trial. 3. Prosecution to prove the charges against the accused persons examined as many as 16 witnesses out of which P.Ws. 1, 2 and 3 were the seizure witness. P.W.4 was a photographer who clicked photos of the body of the deceased, P.W.5 was a Rikshaw Puller who brought some dowry items to the house of the appellant, P.W.6 was a priest who was there from the groom side during marriage of the deceased and the appellant P.W.7 was the village barber who was present at the wedding. P.W.8 is a relative of the informant, P.W.9 was the informant brother of the deceased, P.W.10 was the doctor who conducted the Post-mortem of the deceased, P.W.11 was the then Executive Magistrate, P.Ws.12 and 13 are the Cousin of the informant as well as deceased, P.W.14 was a Police Constable who accompanied in recovery of the body, P.W.15 is Page 3 of 9 the Son of the maternal uncle of the deceased, and P.W.16 was the Investigating officer. 4. The learned Court below, upon a detailed consideration of the evidence on record, categorically found the accused-appellant guilty of the offence punishable under Section 4 of the Dowry Prohibition Act, while acquitting him of all the other charges. The other accused persons were also acquitted of all charges. The Court held that: 23.So the prosecution has not adduced any cogent evidence that the accused persons had subjected Sanjukta to cruelty or harassment soon before her death, that too in demand of dowry. True it is, accused Rajkishore had made demand of dowry. As such his act falls within the ambit of Sec.4 of the D.P. Act, but unless the bride is subjected to cruelty or harassment in demand of dowry, that too soon before her death, the prosecution case cannot be established. In the instant case, it is lacking and further the prosecution has failed to establish the cause of death of Sanjukta. So the charge levelled against the accused persons U/s.304(B) I.P.C. fails. the prosecution 24. As regards the allegation U/s.498-A I.P.C., the through evidence adduced by P.Ws.5, 8, 9 and 13 have been discussed at length. The prosecution has not adduced any documentary evidence about such harassment. The statements of witnesses are contradictory in nature to state that any of the accused subjected her to cruelty in demand of the said colour T.V. The prosecution has also failed to prove the charge U/s.498-A I.P.C. Page 4 of 9 25. The defence examined two witnesses D.W.1 and 2 to make negative statement about torture etc. The prosecution has not adduced any cogent evidence about torture or cruelty. But the evidence about dowry demand is over-whelming and cogent. In such circumstances, the statements of D.Ws. 1 and 2 is of no material value to benefit the accused persons. 26. It is found that the F.I.R. was lodged on 7th July when P.W.9 came to know about the floating of the dead body. He states that he searched his sister, but could not find her. Then he lodged the F.I.R. It appears that the F.I.R. was received by the Magistrate on 12th. The learned counsel for the defence submits that such delay in despatch of F.I.R. reveals that it has been as embellished and concocted. So the prosecution case should not be believed. He places reliance on the case of Iswar Singh V. State of U.P. A.I.R. 1976 S.C. 2423. In the instant case it is found that the F.I.R. Ext.3 is a short one and there is no scope for embellishment or concoction. In such circumstances, the aforesaid decision has no application to the instant case nor the contention of the learned counsel contains any force. 27. For the discussions made above, I am to hold that the prosecution has failed to bring home the the accused persons charges U/s.302, 304(B) or U/s.498(A) I.P.C. So all the accused persons are acquitted of the charges U/s.302, 304(B) and 498(A) I.P.C. levelled against 28. The prosecution has amply proved its case beyond shadow of doubt U/s.4 of the Dowry Prohibition Act against accused Rajkishore. So the said accused Rajkishore is found guilty of the charge U/s.4 of the D.P. Act and in convicted thereunder. However, the prosecution has failed to prove its case U/s.4 D.P. Act against accused Page 5 of 9 Labani, Pradeep, Tilotama and Nirmalprava. Thus the said accused persons are not found guilty of the charge U/s.4 D.P. Act and are acquitted of the same. Accused Labani, Pradeep, Tilotama and Nirmalprava be discharged of their bonds. 5. Aggrieved by the above Judgement of Conviction and order of sentence, the appellant has assailed the same in the present appeal. 6. Heard Mr. D.P. Dhal, learned Senior Counsel on behalf of the appellant and Mr. Sarathi Jyoti Mohanty on behalf of the Respondant. 7. Mr. Dhal, learned Senior Counsel for the appellant, instead of challenging the conviction by assailing the judgment of the court below has limited his arguments to the quantum of sentence. He submitted that the accused at the stage of arguing on sentence before learned trial Court also prayed for the grant of the benefits under Section 4 of the Probation of Offenders Act, which was turned down by the learned Trial Court. The Trial Court while denying the benefit under the P.O. Act held thus: “The learned counsel for the convict submits that the convict is an aged person having his family consisting of daughters. Accordingly he canvasses to release the convict under the probation of Offenders Act. The conviction is for demand of dowry, a heinous social offence, So P.O. Act should not be applied.” Page 6 of 9 8. Learned Counsel for the appellant further submitted that the incident pertains to the year 1995 (07.07.1995). The appellant has already undergone the rigors of trial for about one year. Thereafter, the appeal was preferred in the year 2005 (29.08.1996). The appeal has been prolonging to be heard for about 29 years. At the time of incident, the appellant was 55 years old. At present he is an octogenarian, about 84 years old, leading a respectful life along with his family. The learned Senior Counsel additionally submitted that the appellant has no criminal antecedents and no other case of a similar nature or otherwise is stated to be pending against him. Over the years, he has led a dignified life, integrated well into society, and is presently leading a settled family life. Incarcerating him after such a long delay, it is argued, would serve little penological purpose and may in fact be counter-productive, casting a needless stigma not only upon him but also upon his family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Therefore, in the fitness of situation, the appellant may be extended the benefit of the Probation of Offenders Act read with Section 360 Cr. P.C. Page 7 of 9 9. Regard being had to the procrastinated judicial process undergone, his societal position, clean antecedents and the fact that the incident had taken place in the year 1996, I am of the considered view that the appellant is entitled to the benefit of the Probation of Offenders Act and Section 360 of Cr.P.C. Additionally, the case of the appellant is also squarely covered by ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra1. 10. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned is turned down. But instead of sentencing the appellant to suffer imprisonment, this Court directs the appellant to be released under Section 4 of the Probation of Offenders Act for a period of six months on his executing bond of Rs.5,000/- (Rupees Five Thousand) within one month with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellant shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation 1 2012 (Supp-II) OLR 469 Page 8 of 9 Officer during the aforementioned period of six months. Additionally a fine of Rs.5000/- shall be paid by the appellant which shall be disbursed to the victim in accordance with Section 357 of Cr.P.C, in default of which the appellant is sentenced to undergo R.I for 3 months. 11. With the above observation, the Criminal Appeal is accordingly
Decision
disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 19th August, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 21-Aug-2025 10:22:37 Page 9 of 9