The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.69 of 1998 Arising out of the judgment and order dated 23.03.1998 passed by the learned Addl. Sessions Judge, Bhubaneswar in S.T. Case No.7/5/407 of 1996/95. 1.Babuli Barik 2.Ichha Barik (dead) …. Appellants State of Odisha …. Respondent -versus- Advocates appeared in this case through Hybrid Mode : For Appellants : Mr.G.N.Mishra, Advocate For Respondent : Mr.M.R.Mishra, ASC CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO .……………………………………………………………………… Date of Judgment : 30.05.2025 ……………………………………………………………………….. Savitri Ratho, J. This appeal has been filed challenging the judgment dated 23.03.1998 passed by the learned Addl. Sessions Judge, Bhubaneswar in S.T. Case No.7/5/407 of 1996/95 convicting the appellants, Babuli Barik and Ichha Barik for commission of offences CRA No.69 of 1998 Page 1 of 21 punishable under Section 4 of the D.P. Act and sentence to undergo S.I. for one year. By the said judgment, the co-accused-Chandramani Barik, Sarat @ Dukhisyam Barik, Prahallad Barik, Rabi @ Rabindra Das and Dr.Pramod Kishore Samantray who faced different charges have been acquitted. No appeal has been filed by the Government challenging their acquittal. Appellant No.1 Babuli Barik the husband and appellant no.2 Ichha Barik was the mother-in-law of the deceased Santilata. It has been stated at the bar that appellant no.2 Ichha Barik has died during pendency of the appeal and hence the Criminal Appeal abets so far as she is concerned. PROSECUTION CASE 2. The prosecution case in brief is that appellant No.l-Babuli Barik is the son of appellant No.2-Ichha Barik and Markanda Barik since dead and so the case against him has abated. Babuli Barik married to Santilata Barik on 11.03.1987. before the marriage, the Appellants and Markanda Barik demanded cash of Rs.35,000/-, one godrej almirah and other articles as dowry. The parents of the deceased paid Rs.30.000/- before marriage and promised to pay the balance dowry amount of CRA No.69 of 1998 Page 2 of 21 Rs.5,000/- and a godrej almirah after marriage. The appellant and Markanda Barik tortured the deceased Santi both physically and mentally for non-payment of the balance dowry amount and non-delivery of
Facts
Godrej almirah. In this background, the deceased Santi suddenly died in the night of 7/8.3.1991 while staying in the house of the appellants and Markanda Barik. The appellants along with other co-accused burnt her dead body in the same night without informing her parents and relations living in their village. The co-accused, Dr.Pramod Kishore Samantray granted a false medical certificate showing that the deceased was suffering from diarrhoea and was under treatment at the relevant time. Dusasan Barlk (P.W.7) who is a relation of the deceased and neighbour of the co-accused on 08.03.1991 lodged a written report (Ext.4) at Khandagiri P.S. alleging the death of the deceased due to quarrel between her and appellant No.2-Ichha Barik. The Inspector-in- charge of the said report registered U.D. Case No.05 of 1991 and directed Pramod Kumar Sahu (P.W.11), the Assistant Sub-Inspector (in short „A.S.I.‟) to take up the enquiry. The A.S.I. after conducting enquiry lodged F.I.R. (Ext.2/1) at Khandagiri Police Station on 25.5.91 and a case u/s 498-A/34,I.P.C. was registered. Investigation was conducted and in due course, charge sheet under Sections 498-A, 302, 34 of IPC and CRA No.69 of 1998 Page 3 of 21 Section 4 of the D.P. Act was placed against the appellants, Markanda Barik (who had died), Chandramani Barik Sarat @ Dukhisyam Barik, Prahallad Barik and Rabi @ Rabindra Das. The appellants and co- accused (except Markanda Barik) faced their trial on the above charges after commitment of the case to the Court of Sessions. DEFENCE PLEA 3. The accused persons denied their complicity with the offences in question and pleaded false implication. The appellants in their respective statements under Section 313 Cr.P.C. that appellant No.1 married deceased Santi on 11.03.1987 and she died in their house on 07.03.1991. They pleaded that she died due to diarrhea and her dead body was burnt in presence of her parents. WITNESSES 4. The prosecution examined 11 witnesses in the trial. P.W.4- Gavarani Basantara, P.W.6-Sachidananda Basantara, P.W.5-Padma Charan Basantara and P.W.3-Sobha Barik are the mother, father, brother and aunt (mother‟s sister) respectively, of deceased Santi. P.W.7- Dusasan Barik is the husband of P.W.3 and P.W.8-Pramod Kumar Barik is the son of P.W.7. P.W.2-Brajabandhu Lenka and P.Ws.3, 4, 5, 6 and 7 are the witnesses to the demand of dowry, torture etc. whereas P.W.8 is a CRA No.69 of 1998 Page 4 of 21 seizure witness. P.W.1-Santos Kumar Jena is the neighbour of the accused, who has been examined to prove that the accused persons burnt the dead body of the deceased Santi in the night of alleged occurrence. P.W.11-Pramoda Kumar Sahu, the A.S.I. of Police is the informant, whereas P.W.9-Rahas Bihari Pani the then S.I. of Police of Khandagiri P.S. and P.W.10-Basudev Mohanty, the Inspector of Police, D.C.R.B. are the investigating officers, of whom P.W.10 submitted charge sheet. The accused persons examined co-accused Dr. Pramod Kishore Samantaray as D.W.1 and one Bhima Sahu, a co-villager of the accused as D.W.2. P.W.1-Santos Kumar Jena is the neighbour of the accused appellants. He has stated that when he was returning to his house from pond, on the date of occurrence he saw the co-accused Pahali Barik going towards cremation ground of the village in a bullock cart loaded with fire wood. When he asked him as to why he was going towards cremation ground with fire wood, he told that he was going to the cremation ground for burning the dead body of the wife of appellant No.1-Babuli Barik. After returning to his house he found the accused persons except co-accused-Pramod Samantaray and Ichha Barik were making arrangement for taking the dead body of Santi Barik to the cremation ground by carrying the dead body with Tokei. In his cross- CRA No.69 of 1998 Page 5 of 21 examination he has stated that the accused-Babuli Barik and his wife were living peacefully after marriage. There was no injury on the dead body of Shanti. The deceased was suffering from dysentery and diarrhoea prior to her death. P.W.2-Brajabandhu Lenka, who claims to be the mediator of the marriage, has testified in his examination-in-chief that he went to the house of the accused nos.1 and 2 about one year after marriage and was told by deceased Shanti to inform her father (P.W.6) for payment of Rs.5,000/- as balance dowry amount and a godrej almirah. She further stated before him that she was being insulted by accused nos.1 and 2 for non-payment of balance dowry demand and non-delivery of the godrej almirah. It has been elicited from his cross-examination that the deceased never complained of torture for non-payment of the amount in question during his visit to the house of accused No.1 after marriage. P.W.3-Sobha Barik the aunt of the deceased is the neighbour of the appellants. She has stated that that the appellants were abusing and harassing the deceased for non-payment of balance dowry amount and one godrej almirah. She has further stated that on the occurrence day in the morning hours, the deceased told her that she was being harassed by her husband and in-laws and that on the same day at the evening time she CRA No.69 of 1998 Page 6 of 21 told her (P.W.3) that her husband and in-laws were not providing her with food and her father-in-law Markanda caused injury on her lip by means of sickle. She admitted in her cross-examination to have not stated before the police officer that the deceased was being harassed by appellants for non-payment of balance dowry amount. The omission to state the said material facts amounts to contradiction and the same is excluded out of consideration. But her evidence that deceased Santi told her that she was being harassed and that she was not provided with food and her father-in-law caused injury on her person on the occurrence day has been left completely unchallenged in the cross-examination. P.W.4-Gavarani Basantaray, the mother of the deceased Santi has no personal knowledge of torture of the deceased. Her evidence reveals that the deceased came to her house several times after marriage and complainted that accused nos.1 and 2 and others were torturing and assaulting her demanding the balance dowry amount and godrej alimirah. The deceased came to her house for the last time three months prior to her death and told about the ill-treatment. In her cross-examination she has stated that deceased Santi returned to her house 15 days after marriage and stayed for six months and never complained of torture. She has not preserved any letter received from her sister (P.W.3) complaining CRA No.69 of 1998 Page 7 of 21 of torture nor submitted any written report to the police alleging ill- treatment on her daughter prior to her death in connection with any demand for dowry. It is thus clear from the evidence of P.W.4 that the deceased was complaining before her about 6 and ½ months after marriage that she was being assaulted and tortured by accused nos.1 and 2 for non-payment of dowry. P.W.5-Padma Charan Basantara @ Barik, the brother of the deceased Santi has testified that accused no.1 and his parents were torturing his sister for non-payment of the balance dowry amount. The deceased also disclosed before him (P.W.5) and others of his family three months before her death, when she came to their house, that her husband and in-laws were torturing her. Further accused no.2 on 06.03.1991 abused P.W.5 in her house and did not allow him to talk with his sister (deceased) for not bringing the dowry and godrej alimrah. He claims to have disclosed the said facts before P.W.3 and his parents. He has admitted that he has no personal knowledge of torture. P.W.6-Sachidananda Basantaray, father of the deceased Santi and P.W.7 the Sadu of P.W.6 have supported the evidence of P.W.5 that they came to know from deceased Santi that accused nos. 1 and 2 CRA No.69 of 1998 Page 8 of 21 and others were ill-treating and harassing her demanding the balance dowry amount and godrej almirah. P.W.7-Dusasan Barik has not mentioned in his report (Ext.4) about torture in connection with demand for dowry. He had not stated before the I.O. (P.W.9) during investigation that accused no.1 and others were torturing deceased Santi for non-payment of Rs.5,000/- as the dowry amount and non-delivery of one godrej almirah after marriage. It goes to show that P.W.7 has introduced a new story regarding torture for the first time during trial. P.W.8-Pramod Kumar Barik in his evidence stated that on 8.3.1991 at 10.00 a.m. police officer of Khandagiri P.S. seized burnt pieces of bone, ash and one mobil tin from the cremation ground of village Retang and prepared the seizure list. In the cross-examination he has stated that P.W.7 is his natural father. He cannot say if his natural father was trying to give him as the adopted son of Markand Barik. P.W.9-Rahas Bihari Pani, the S.I. of police in his evidence stated that on 25.05.1991 at 9.00 a.m., on receipt of the written information from A.S.I. Pramod Kumar Sahu of Khandagiri P.S. Khandagiri P.S. Case No.128 dated 25.5.1991 was registered under Section 498-A/34 of IPC. On 25.5.1991 after taking investigation, he CRA No.69 of 1998 Page 9 of 21 visited the spot in village, Retang, examined the witnesses, searched for the accused persons but could not trace them out. On 28.5.1991, accused persons surrendered before the Court of learned S.D.J.M., Bhubaneswar. On 30.5.1991, he also examined some witnesses. On 18.7.1991 the seized properties were sent to State F.S.L. for examination. On 18.7.1991, Inspector Basudev Mohanty of D.C.R.B., Bhubaneswar took the charge of investigation from him. In the cross-examination, he has stated that he had not seized the U.D. case record. He brother the said record to his custody. On 25.5.1991 he examined the witness Pramod Kumar Barik (A.S.I), Sova Barik, Dusasan Barik, Prahallad Barik, Chandramani Barik and Binod Bhoi. P.W.7 had not stated before him that his Sadu, Satchidananda paid Rs.30,000/- to accused Babuli before the marriage and that on the demand of accused Babuli Satchidananda agreed to pay Rs.5,000/- and a goderj almirah after marriage and that the accused Babuli and Markand started torturing the deceased for non- payment of Rs.5,000/- and non-delivery of one godrej almirah after marriage. P.W.10-Basudev Mohanty who was the Inspector of Police attached to D.C.R.B., Bhubaneswar in his evidence has stated that on 27.7.1991 he took charge of this case from S.I. R.B.Pani (P.W.9). On CRA No.69 of 1998 Page 10 of 21 09.08.1991 he examined the witnesses, namely, Dusasan Barik, Sova Barik, Satchidananda Basantaray, Padmacharan Basantaray, Tarmani Basantray. On 01.09.1991 he visited the spot. On the same day, he arrested accused, Rabindra Das and forwarded him to court on the next date. On 26.1.1991 he seized the invitation card. On completion of investigation, he submitted charge sheet against the accused persons on 14.10.1992. In his cross-examination he has stated that he had not seized any register and certificate from Kananbala Seva Sadan. Accused Pramod Kishore Samantray was in charge of the said Seva Sadan. He examined all the witnesses in his O.C.R.B. office on 09.08.1991. P.W.9 had also recorded the statements of the witnesses, namely Dussasan Barik, Sova Barik and others. He cannot say if Sova Barik, Dusasan Barik and other witnesses developed their story and gave statements before him implicating the accused persons. P.W.11-Pramod Kumar Sahu in his evidence stated that on 09.03.1991 one Dusasan Barik, son of Anguni Barik of village, Retang appeared at the Police Station and presented a written report before the IIC, Khandagiri P.S. On the basis of the said report the IIC registered U.D. Case No.05 of 1991 and directed him to take up inquiry. During enquiry, he visited the house of the accused, Babuli Barik and examined CRA No.69 of 1998 Page 11 of 21 the witnesses. On 8.3.1991 at 10.00 a.m. he seized some ashes, burnt pieces of bone and one mobil tin from the burial ground of village, Retang in presence of witnesses and prepared the seizure list, Ext.1. His enquiry reveals that the deceased, Santilata Barik died of torture by her husband and in-laws. D.W.1-Dr.Pramod Kishore Samantaray in his evidence stated that he knew the accused, Babuli Barik and deceased Santilata Barik. He was the Medical Officer attached to Kananabala Seva Sadan at village Retang from 1986 to 1991. On 05.03.1991, the wife of accused, Babuli Barik came to his house for treatment. She was suffering from diarrhoea with vomiting. He prescribed medicine for her. He issued prescription on 05.03.1991. In his cross-examination he has stated that he is one of the accused in the Sessions Case and facing trial under Section 201 IPC. The accused, Babuli came to him alone on 07.03.1991 at morning hour. There was no other government hospital nearer to village Retang except Kananbala Seva Sadan. He denied that he issued Ext.8 after the death of Santilaata Barik. He had not maintained any register for entering the name of patients to whom he treated privately. D.W.2-Bhima Sahu in his evidence stated that he knew all the accused persons. They are his co-villagers. There was no demand CRA No.69 of 1998 Page 12 of 21 from the side of the accused Babuli before or after his marriage with the deceased. There was also no payment of any amount towards dowry. The accused persons never tortured the deceased while she was staying in their house demanding dowry. The deceased died due to diarrhoea and vomiting. She suffered for two days. The father and brother of the deceased came to the house of accused, Babuli Barik being informed about the death of the deceased and were present when the dead body was burnt. In his cross-examination he has stated that he went to the house of the father-in-law of the accused, Babuli for the first time on the date of his marriage. He ascertained from the father-in-law of the accused that there was no demand for dowry or payment of the same. It was false to say that Rs.35,000/- was demanded as dowry from the side of the accused, Babuli and Rs.30,000/- was paid out of the demanded amount before marriage. JUDGMENT OF TRIAL COURT 5. The learned trial Court held that the prosecution has been able to establish that the accused and 2 demanded Rs.35,000/- as dowry from the parents of deceased before the marriage and accepted Rs.30,000/- out of the demanded amount. The demand was made in connection with the marriage. So the accused nos. 1 and 2 have CRA No.69 of 1998 Page 13 of 21 committed the offence punishable under Section 4 of the Dowry Prohibition Act. The learned trial Court further held that the prosecution has failed to establish the charges under Sections 498-A, 304-B read with Section 34 of IPC. against accused Nos. 1 and 2, under Section 201/34 of IPC against accused Nos. 1 to 6 and under Section 201 of IPC against accused No.7 and acquitted them of the said charges. The appellants were held guilty for commission of offence under Section 4 of the Dowry Prohibition Act and sentenced to undergo S.I. for six months. SUBMISSIONS 6.
Legal Reasoning
This aspect has been considered by this Court in a plethora of judgements. In the case of Ram Vijay Singh vs State of CRA No.69 of 1998 Page 17 of 21 UP:2021 SCC Online SC 142 , a Three Judge bench of this Hon‟ble Court had held that: “..(20) We do not find any merit in the arguments raised by the learned counsel for the Appellant. A part statement of a witness can be believed even though some part of the statement may not be relied upon by the Court. The maxim falsus in uno, falsus in omnibus is not the rile applied by the courts in India. This Court recently in a judgement IIangovan vs State of T.N. held that Indian Courts have always been reluctant to apply the principle as it is only a rile of caution. It was held as under: (SCC Pg 536, Para 11)” “(11) The Counsel for the Appellant lastly argued that once the witnesses had been disbelieved with respect to the co accused, their testimonies with respect to the present accused must also be discarded. The Counsel is, in effect, relying on the legal maxim “falsus in uno, falsus in omnibus”, which Indian Courts have always been reluctant to apply. A three Judge bench of this Court, as far back as in 1957, in Nisar Ali v. State of UP, held on this point as follows (AIR p 368, Para 9-10) “(9) This maxim has not received general acceptance in different jurisdictions in India nor has this maxim come to occupy the status of a rule of law. It is merely a rule of Caution. All that it amounts to is that in such cases the testimony may be disregarded and not that it must be disregarded. (10) The Doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called “a mandatory rule of Evidence” (21) Therefore, merely because a prosecution witness was not believed in respect of another accused, the testimony if the said witness cannot be disregarded qua the present Appellant. Still, further it is not necessary for the prosecution to examine all the witnesses who might have witnessed the occurrence. It is the quality if evidence which is relevant in criminal trial and not the quantity.” Hence, as can be seen from above, it has being a consistent stand of this Hon'ble Court that the principle „falsus in uno, falsus in omnibus‟ is not a rule of evidence and if the court inspires confidence from the rest of the testimony of such a witness, it can very well rely on such a part of the testimony and base a conviction upon it” ( Emphasis supplied) CRA No.69 of 1998 Page 18 of 21 In the case of M. Venkateswar vs. State : (2025) 3 SCC 578, the Supreme Court while confirming the conviction of the appellant under Section 498-A of IPC and Section 4 of the Dowry Prohibition Act, considering the fact that the appellant had undergone approximately three months in custody reduced his sentence to the period already undergone and enhanced the fine to Rs.3 lakhs to be paid as compensation to the wife . ANALYSIS 10. P.W.5 brother of the deceased has stated about demand of dowry of Rs.35000/- and a goderj almirah, by the appellants and Markanda before the marriage and that Rs.30,000/- had been paid before marriage and balance Rs.5000/- and goderj almirah was to be given after marriage. P.W.4 mother of the deceased has also stated about such demand. These two witnesses had also stated about torture of the deceased for non-payment but the allegation of torture has been disbelieved by the learned trial Court. Merely because their evidence regarding torture has been disbelieved, that does not mean that their entire evidence has to be rejected. As the evidence of P.W.4 and P.W.5 regarding demand and acceptance of dowry by the appellant before the marriage has not been shaken during cross-examination and in view of CRA No.69 of 1998 Page 19 of 21 the fact that the principle “falsus in uno, falsus in omnibus” , is foreign to our criminal law jurisprudence , their evidence is not to be rejected in toto. CONCLUSION 11.
Arguments
Mr. G.N. Mishra, learned counsel for the appellants submitted that the impugned judgment of conviction and sentence is vitiated due to want of finding that the alleged demand for Rs.35,000/- was in consideration of the marriage so as to bring it with the meaning of „dowry‟. The evidence of the witnesses are discrepant as to when the alleged demand for dowry was made which is very material for bringing home the charge under Section 4 of the D.P. Act. He further submitted that in absence of any material to show any demand or dowry and in view of the discrepant statements of the witnesses, the trial Court should CRA No.69 of 1998 Page 14 of 21 not have held the appellants guilty for the offence under Section 4 of the D.P. Act. The learned trial Court rightly rejected the evidence of P.Ws. 2, 3 and 7 with regard to demand of dowry but erroneously relied on evidence of P.Ws. 4 to 6 to convict the appellant under Section 4 of the D.P. Act. If the learned trial Court found the evidence to be materially discrepant about torture on account of the demand of dowry, for the purpose of Section 498-A IPC, it could not have accepted if for making out offence Section 4 of the D.P. Act. He has further submitted that the appellant was 38 years old in 1991. He is now almost 70 years by now. He had undergone 02 days custody during investigation. Sending him to Jail at this stage will be iniquitous and he should therefore be extended the benefit of probation which the Trial Court had improperly refused. 7. Mr. M.R.Mishra, learned Addl. Standing Counsel on the other hand submitted that basing on the materials on record, the learned court below has rightly convicted the accused appellants for commission of offence under Section 4 of the D.P. Act and sentenced them thereunder as aforesaid. As the sentence imposed is not excessive, the order of the trial Court does not call for any interference. CRA No.69 of 1998 Page 15 of 21 STATUTORY PROVISIONS 8. Section 2 and 4 of the Dowry Prohibition Act which are relevant for deciding this appeal, are extracted below:- 2. Definition of ‘dowry’.- “ In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly- (a)by one party to a marriage to the other party to the marriage; or (b)by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. *** Explanation II.- The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).” “Section 4 Penalty for demanding dowry.- If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or CRA No.69 of 1998 Page 16 of 21 bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.” JUDICIAL PRONOUNCEMENTS 9. In the case of Edakkandi Dineshan @P. Dineshan & others vs State of Kerala : 2025 INSC 28 , the Supre Court has held as follows : - “18. Either a partial, untrue version of one of the witnesses or an exaggerated version of a witness may not be a sole reason to discard the entire prosecution case which is otherwise supported by clinching evidence such as truthful version of the witnesses, medical evidence, recovery of the weapons etc. At this stage, it may not be out of place to refer to the principle called as „falsus in uno, falsus in omnibus‟. 19. It is a settled position that „falsus in uno, falsus in omnibus‟ (false in one thing, false in everything) that the above principle is foreign to our criminal law jurisprudence.
Decision
In view of the above discussion, I find no reason to interfere with the conviction of the appellant Babuli Barik under Section 4 of the D.P. Act. 12. In view of the nature of allegations against the appellant and as demand of dowry is a social evil, which unfortunately is still prevalent, I am not inclined to extend the benefit of Prohibition of Offenders Act to the appellant. 13. Section 4 provides for minimum sentence of six months but which may extend to two years. It also provides that a lesser may be imposed for reasons to be recorded. 14. It has been submitted that the appellant is aged about 70 years now. Considering the age of the appellant, I am inclined to reduce the substantive sentence to one month simple imprisonment and impose a fine of Rs.1000/-, in default to undergo S.I. for one month more. 15. The conviction of the appellant under Section 4 of the D.P. Act is thus confirmed, but the sentence is reduced to simple CRA No.69 of 1998 Page 20 of 21 imprisonment for a period of one month and to pay a fine of Rs.1000/-, in default to undergo S.I. for one more month. 16. The Criminal Appeal is dismissed with modification in sentence. 17. Trial court records be sent back after retaining a scanned copy. …………………. (Savitri Ratho) Judge Orissa High Court, Cuttack Dated 30th May, 2025/ Sukanta CRA No.69 of 1998 Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 30-May-2025 22:05:54 Page 21 of 21