The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.153 of 1998 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Parameswar Mahanta ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Mohammed Faradish, Advocate For the Respondent : Mr. Sarathi Jyoti Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 08.07.2025 :: Date of Judgment: 18.07.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant under Section 374 of the Cr. P.C., is directed against the judgment and order dated 27.07.1998 passed by the learned Additional Sessions Judge, Rairangpur in Sessions Trial Case No.20/145 of 1997, whereby the learned trial Court while acquitting all other accused persons of the charges under Sections 498(A)/304-B of I.P.C., convicted the appellant on the charge under Section 498-A of I.P.C., however, acquitted the appellant of all other charges. The appellant was sentenced to undergo R.I. for two years and to pay a fine of Rs.1,000/-, in default, to undergo R.I. for one month. 2.
Legal Reasoning
in the judgment of this Court in the case of Dhani @ Dhaneswar Sahu (supra) and in the case of Pathani Parida & another vs. Abhaya Kumar Jagdev Mohapatra, reported in 2012 (Supp-II) OLR 469. 16. In such view of the above discussion, the present Criminal Appeal in so far as the conviction is concerned is turned down. But instead of Page 12 of 13 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 one year on his executing bond of Rs.5,000/- (Rupees Five Thousand) 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 Officer during the aforementioned period of one year.
Arguments
Heard Mr. Mohammed Faradish, learned counsel for the appellant and Mr. Sarathi Jyoti Mohanty, learned Additional Standing Counsel for the State. 3. The matter was extensively heard on 03.07.2025. Learned counsel for the appellant confined his argument only to the quantum of sentence and submitted that he would pray for extension of benefit of Probation of Offenders Act. Hence, in so far the conviction of the appellant under Section 498-A of I.P.C. is concerned, he would not argue the matter on merits. 4. The State has also not challenged the acquittal of the other accused persons from all other charges and also the acquittal of the present appellant of the charges under Section 304-B of I.P.C. Therefore, the present appeal filed by the appellant is pending determination before Page 2 of 13 this Court, which arises from the F.I.R in Rairangpur Rural P.S. Case No.78 dated 21.10.1996. 5. The prosecution case in terse and brief is enumerated hereunder:- (a) In the year June 1996, the appellant Parameswar Mohanta married the deceased Usha @ Manjulata. It is alleged by the prosecution that in furtherance of common intention, the appellant and other accused persons subjected the deceased to mental and physical torture on demand of dowry. Eventually, the cruelty become intolerable. It is alleged that in the evening of 20.10.1996 at village-Panposi, Manjulata (deceased) was inflicted with injuries on her person with Gupti, knife and big size bolder causing her death. The dead body was traced out on the next day noon. (b) On the written report of the co-accused Rameswar Mohanta, Rairangpur Rural P.S. U.D. Case No.9 dated 21.10.1996 was registered. During the enquiry, suspicion was raised against the accused persons. Hence, U.D. case was converted to Rairangpur Rural P.S. Case No.78 dated 21.10.1996. The matter was investigated. After inquest over the dead body of the deceased was over, the dead body was subjected to post mortem examination. From the spot sample earth blood stained earth, Page 3 of 13 five pieces of blood stained tiles, a pair of ear-rings, necklace, a chappal and bunch of hair of the deceased was seized. From the house of the appellant, some house hold articles claimed to be the dowry articles were also seized. Couple of them were left in the zima of the father of the deceased. (c) It is the case of the prosecution that the accused-appellant while in police custody gave recovery of Gupti knife, weapon of offence from the house of the accused Chhutu @ Lalmohan and his blood stained wearing apparels were also recovered. Another weapon of offence was also recovered from the backyard of the house of the co-accused Rameswar Mohanta. Some of the seized articles were subjected to the chemical examination and many other documents were also seized from the accused persons. 6. After investigation, charge-sheet under Section 173 Cr.P.C. was filed against the accused persons for alleged commission of offences punishable under Sections 498-A/304-B and 302/201/34 of I.P.C. read with Sections 3 & 4 of the D.P. Act. Accordingly, charges were framed and the accused persons including the appellant were put to trial. Page 4 of 13 7. 8. The stand of defence was that of complete denial. The prosecution in order to bring home charges examined twenty witnesses. Out of which, P.W.1 and P.W.5 are the mother and father of the deceased. P.W.3 was a witness to the inquest. P.W.4 is the co- villager of the accused Lalmohan, who is also an eye witness to the alleged murder P.Ws.13 & 14 are the witnesses to the circumstances. P.W.7 is a photographer, who had taken photographs of the spot. P.Ws.6 and 15 are the witnesses leading to discovery. P.Ws.8 & 9 are the relatives of the appellant. P.Ws. 10, 11 and 12 are the witnesses to the seizure. P.Ws.16 & 18 are the residents of the deceased’s locality and also the eye witnesses to the alleged torture meted out to the deceased by the appellant. P.Ws.2 and 17 are the doctors, who have conducted post- mortem examination. P.Ws. 19 & 20 are two I.Os. of this case. 9. The learned trial Court after thread bare analysis of the evidence of the prosecution came to the conclusion that the prosecution has failed to establish the charge under Section 302 of I.P.C. or 304-B of I.P.C. against all the accused persons. Hence, recorded the acquittal. The findings at paragraph-7 of the impugned judgment in that regard is Page 5 of 13 relevant. For the sake of convenience, the said paragraph is reproduced hereunder:- “7. Next it is to be seen how far prosecution has established that accused persons are the assailants. Here luck has abandoned the prosecution when the only eye-witness P.W.4 of the alleged murder going hostile to prosecution has denied his knowledge of the occurrence. Rather in his cross-examination he has breathed absence of accused Rameswar from the spot at the relevant hour than both of them watering in field away from the spot. Failing on this front prosecution has tried to rope in the accused persons on leading to discovery of incriminating articles including weapons of offence by them. On this score, it is the evidence of P.W.20 one of the I.Os that accused Parameswar while in police custody giving information of concealment of Gupti knife in the house of Hota alias Lalmohan gave recovery of that knife M.O.XIII which he seized under seizure list Ext.5. same accused also while in police custody giving information of concealment of his blood stained wearing apparels inside his house gave recovery of pant. M.O.XV and shirt M.O.XVI which he seized under seizure list Ext.10 accused Rameswar while information of concealment of a piece of bolder in the backyard of their house gave recovery of that bolder. M.O.XIV which he seized under seizure list Ext.6 and the same accused also while in police custody giving information of concealment of his wearing apparels in his house gave recovery of his full pant M.O.XVII full shirt M.O. XVIII and towel M.O.XIX which he seized under seizure list Ext.18. To some extent this in police custody giving Page 6 of 13 evidence of the I.O. has received corroboration from that of evidence of P.W.6 who admitted his signatures vide Ext.5/1 and 6/1 on the connected seizure lists has breathed leading to discovery of Gupti (knife) by accused Paremeswar, of course from his house and a piece of stone by accused Rameswar from the their house not breathed about backyard of information given by these two accused persons when the other seizure witnesses P.W.15 going hostile to prosecution has breathed seizure of these articles at the P.S. and he signed seizure lists vide his signatures Ext.5/2 and Ext.6/2. Learned defence counsel citing in (1997) 12 OCR 558 the decision reported submitted that a conviction cannot lie solely basing on leading to discovery. In the cited decision his lordship has held:- B. Evidence Act, 1872-Sec. 27-Statement leading to discovery admissible but not substantive evidence from where recovery affected is requented by others cannot be said that the appellants had exclusive knowledge about presence of articles in the place of recovery-Evidence of witness does not disclose that the appellants led the witnesses to the place of concealment-Guilt of appellants not established beyond reasonable doubt. Here in absence of any other evidence to cage the accused persons as the authors of alleged murder, there is much force in this contention of learned defence counsel. To add as is found from Ext.19, C.E. report no stain of blood has been detected from any of the articles seized on leading to discovery. It may be mentioned here that claim of P.W.1 in her evidence to have stated before the I.O. that accused Parameswar Page 7 of 13 and his brother requested her to save them which could have taken as a circumstance against accused persons has been negative by the I.O. P.W.19 so, there is no acceptable evidence that accused persons are the alleged murderer.” The prosecution has not assailed the aforementioned findings by filing the appeal. 10. The learned trial Court placing heavy reliance on the evidence of P.Ws.1, 5, 18, 19 and 20 have arrived at the conclusion that the appellant alone is found guilty of offence under Section 498-A of I.P.C. as the prosecution could successfully prove its case beyond all reasonable doubt regarding the complicity of the appellant in committing the crime. Accordingly, in pargarph-8 of the judgment, the learned trial Court has recorded as under:- “8. Now it is to be seen how far prosecution has proved its allegation of subjecting the deceased to torture by the accused persons. There is absolutely no iota of evidence that accused persons Rameswar and Lalmohan have committed this crime. It is in the evidence of P.W.1 that from some persons whom he cannot name she heard that accused Parameswar was assaulting the deceased on the way while returning from her house by walk on the previous day of alleged murder. Her this evidence appears to be exaggerated, may be owing to her agony, when her claim to have Page 8 of 13 stated before I.O. that accused assaulted Usha on their way back from their house has been negatived by the I.O. P.W.19. But not giving importance to this hear-say evidence of P.W.1, it would be proper to go to the evidence of eye-witness. It is the evidence of P.W.16 that on 19.10.96 Saturday while accused Parameswar was coming from the village Kadal, village of his father-in-law, with his wife and another girl this accused raised hand at his wife Usha and this unassailed evidence speaks a volume of attitude of accused Parameswar towards his deceased wife. This evidence of P.W.16 to some extent has been echoed by P.W.18 when it is that at the relevant hour near a Dungri husband of Usha snatching away attaché from her, threatened her, gave pushes and told to see her reaching house and Usha followed him crying. Of course, his such claim to have stated this fact except Usha following Parameswar crying before I.O. has been negatived by the I.O. P.W.20. However, his evidence that Usha was following her husband crying is very pertinent. So from above, it is to be deduced that raising hand at his wife Usha by accused Parameswar who was following him crying is nothing but his subjecting her to torture and cruelty.” Having convicted the appellant for the aforementioned offence, the learned trial Court sentenced him to undergo R.I. for two years and to pay a fine of Rs.1,000/-, in default, to undergo R.I. for one month. 11. Since learned counsel for the appellant has confined his argument limited to the question of sentence, this Court is not inclined to re- Page 9 of 13 appreciate the evidence on record afresh, however, suffice it to say that prima facie the finding recorded by the learned trial Court in paragraph-8 of its judgment is just, proper and culmination of right appreciation of evidence. 12. The sentence of two years awarded to the appellant along with fine of Rs.1,000/- is disproportionate as argued by the learned counsel for the appellant. Learned counsel for the appellant also submitted that at the time of commission of offence, the appellant was 25 years of age. The conviction was recorded against him in the year 1998. The appeal has been pending since 1998. At present the appellant is about 53 years. The appellant is first time offender. He has already settled in his life. Sending the appellant to undergo further sentence at this stage of his life would have a cascading effect on the entire family which would not only be harsh but also unequitable. 13. I have taken into consideration the submission made by the learned counsel for the appellant and also considered all the attending circumstances. It would be apt to rely upon a judgment of this Court in the case of Dhani @ Dhaneswar Sahu & another vrs. State of Orissa Page 10 of 13 reported in 2007 (Supp-II) OLR-250 taking to the facts of the present case, this Court while dealing with the similar situation have extended the benefit of Probation of Offenders Act to a convict under Section 498- A of I.P.C. In the said case as well, the convict was sentenced for offence under Sections 498-A and 306 of I.P.C. and was substantively sentenced to undergo R.I. for three years and pay a fine of Rs.5,000/- for offence under Section 306 of I.P.C. and on the count of offence under Section 498-A of I.P.C., the accused was sentenced to undergo R.I. for five years. This Court while granting the benefit of Probation of Offenders Act, inter alia, has held as under:- “20. On consideration of the contentions advanced by the learned counsel for the parties, I am of the view that ends of justice would be served if appellant No.1 is dealt with under Section 4 of the P.O. Act, 1958 and is released on probation of good conduct. The sentence imposed on appellant No.1 is hereby set aside and it is directed that he shall be released on a bond of Rs.10,000/- and shall appear before the trial Court and shall receive the sentence on being called upon during the period of one year and shall maintain peace of good behavior. The personal bond and security bond by appellant No.1 shall be filed before the trial Court within a period of one month from today. The appellants need not surrender to their bail Page 11 of 13 bonds which are discharged in view of the terms contained hereinabove.” 14. The submission of the learned counsel for the appellant is precisely in the same line. Mr. Mohammad Faradish, learned counsel submits that the appellant may be extended the benefit of Probation of Offenders Act because he has been only convicted under Section 498-A of I.P.C. and acquitted for all other charges. 15. Having regard to the fact that the learned trial Court has already sentenced the appellant to undergo R.I. for two years and to pay a fine of Rs.1,000/-, in default, to undergo R.I. for one month and the fact that the incident had taken place in the year 1996, I am inclined to accede to the oral prayer made by the learned counsel for the appellant. I am of the view that the appellant’s case is directly covered by the ratio laid down
Decision
17. With the above observation, the CRA is accordingly disposed of. The High Court of Orissa, Cuttack. Dated the 18th of July 2025/ Swarna (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 18-Jul-2025 18:46:04 Page 13 of 13