JUSTICE D. DASH JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GCRLA No.67 of 2003 In the matter of an Appeal under Section 378(1) of the Criminal Procedure Code, 1973 and from the judgment dated the 14.02.2002, passed by the learned Additional Sessions Judge, Bhadrak in S.T. Case No.36/87 of 1998. ------------------ State of Orissa …. Appellant -versus- Ganesh Prasad Sahu …. Respondent For Appellant For Respondent : : Mr. T.K. Praharaj, SC Mr. A.K. Acharya, Advocate CORAM: JUSTICE D. DASH JUSTICE V. NARASINGH DATE OF HEARING : 12.03.2024 DATE OF JUDGMENT: 15.04.2024 V. Narasingh, J. 1.
Legal Reasoning
Heard Mr. T.K. Praharaj, learned Standing Counsel for the Appellant and Mr. A.K. Acharya, learned counsel for the Respondent. 2. Assailing the judgment by the learned Additional Sessions Judge, Bhadrak in S.T. Case No.36/87 of 1998 thereby acquitting the Respondent who was charged under Sections GCRLA No.67 of 2003 Page 1 of 10 498-A/304-B of Indian Penal Code (hereinafter referred to as IPC) and Section 4 of the Dowry Prohibition Act (D.P. Act) for causing the death of one Sasmita Sahu (hereinafter referred to as the deceased), the present appeal has been preferred by the State. 3. The Prosecution case in brief runs thus:- Respondent married the daughter of the informant-P.W.1 (Panchanan Sahu) in the month of Baisakh, 1995. The informant had given necessary dowry articles as per demand. Yet, a few months thereafter there was further demand for a gold chain for the groom and gold bangles for the bride and due to non-fulfillment of the same, the daughter of the informant (deceased) was subjected to physical and mental torture in her in-laws house. It is further the case of the Prosecution that with much difficulty the informant managed to give the gold chain for the Respondent-accused (husband) but in spite of the same, the deceased suffered unrelented cruelty on account of demand for gold bangles. It is stated that on receipt of a letter from the deceased in this regard when the informant expressed his inability to fulfill the same, his daughter was subjected to further cruelty and ultimately killed by poisoning on 18.08.1997. 4. On the basis of the report of the informant, FIR-Ext.1 Bhadrak (R) P.S. Case No155 of 1997 was registered (G.R. Case No.995 of 1997), S.D.J.M., Bhadrak. After due investigation, police submitted the charge sheet under Sections 498-A/304-B of IPC and Section 4 of the Dowry Prohibition Act against the accused-Respondent. GCRLA No.67 of 2003 Page 2 of 10 5. In order to prove the charges Prosecution examined 12 witnesses. P.W.1 P.W.2 P.W.3 P.W.4 P.W.5 P.W.6 P.W.7 P.W.8 P.W.9 P.W.10 P.W.11 P.W.12 Panchanan Sahu-Informant Surendra Sahu-Brother of the Deceased Debasis Bark-Doctor Mayadhar Sahu-Independent Witness Rama Chandra Sahu-Independent Witness Maguni Sahu-Mother of the Deceased Nayana Sahu- Witness accompanying P.W.8 to the house of the deceased Padmabati Sahu-Sister of the Deceased Gadadhar Sahoo-Scribe of FIR Kamalakanta Sahu-Mediator in the marriage Narayan Chandra Naik-I.O. Sukadev Mandal-I.O. 6. Several documents were admitted into evidence as exhibits by the Prosecution. Of which Ext.1-FIR, Exts.4 & 5 letters allegedly written by the deceased and Ext.6 the post mortem report are of significance. 6-A. No oral evidence was adduced by the defence. 6-B. The statement of Kamalakanta Sahu-P.W.10 recorded under Section 161 Cr.P.C. was admitted in evidence and marked as Ext.A. 7. On an analysis of evidence on record, the learned Trial Court acquitted the Respondent. 8. In assailing the same, it is submitted by the learned Public Prosecutor, Mr. T.K. Praharaj that on a perverse appreciation of evidence on record the judgment of acquittal was passed. It is his submission that on analysis of the evidence on record, it would not be possible to arrive at any conclusion other GCRLA No.67 of 2003 Page 3 of 10 than one which unerringly points to the guilt of the accused- Respondent and as such the judgment of acquittal warrants interference. Learned Public Prosecutor further submits that the death of the deceased having occurred within seven years of marriage and under unnatural circumstances, the learned Trial Court failed to appreciate the import of presumption under Sections 113-A/113-B of the Evidence Act. 9. Learned counsel for the Respondent-accused supported the judgment of acquittal in full measure. 10. On analyzing the evidence of P.Ws.1, 2, 6 & 8, the learned Trial Court acquitted the accused-Respondent. 11. P.W.1 is the informant and father of the deceased. In his examination-in-chief he has reiterated his accusation in the FIR that about four months after marriage there was further demand of dowry articles like gold chain and gold bangles and since the demand relating to gold bangle could not be fulfilled, the deceased was subjected to cruelty which ultimately resulted in her death. 12. But in his cross-examination, P.W.1 has stated that “out of my free will I had presented all the articles to my daughter at the time of her marriage”. 13. P.W.2 is the brother of the deceased. He has stated that about two months after marriage there was further demand for a gold chain and a pair of bangles and for non fulfilment of demand for gold bangles the deceased was subjected to cruelty. 14. P.W.6 is the mother of the deceased and it is in her evidence that within one month of the marriage there was demand for gold bangles and gold chain. It is stated that GCRLA No.67 of 2003 Page 4 of 10 because of non-fulfillment of demand on account of gold bangles, the deceased was subjected to torture. 15. P.W.8 is the sister of the deceased, in her evidence she has stated that one day prior to the occurrence, on the occasion of Rakhi Purnima, she accompanied P.W.7 to the house of the deceased for tying Rakhi on the accused-Respondent and that the deceased was also weeping when she left her house and the next day morning, she heard about her death. P.W.7 is an independent witness who accompanied P.W.8 to the house of the deceased. 16. P.W.3 is the Doctor who conducted the post mortem of the deceased and Ext.6 is the post mortem report in which the cause of death was due to poisoning. In his evidence, the said P.W. has been categorical that even in the absence of the viscera report he stated that the cause of death was due to poisoning. Hence, it is not in dispute that the deceased died of poisoning that too within seven years of marriage and now the question that confronts this Court as to whether the present Respondent is responsible for the same since on the analysis of evidence on record, the learned Court in seisin recorded an order of acquittal. 17. While analyzing the evidence on record, the learned Court has noted the discrepancy relating to the time of demand of the gold bangles, inasmuch, as P.W.1 has stated that about four months after the marriage there was further demand of dowry whereas P.W.2 is the son of P.W.1 and brother of the deceased stated that such demand was raised within two months of marriage and P.W.6-mother gave another version that such demand was within a period of one month. GCRLA No.67 of 2003 Page 5 of 10 18. It is significant to note that P.Ws.2 & 6 had not stated about such demand before the I.O.-P.W.12 and their attention was specifically drawn to their earlier statements in this regard coupled with it the learned Trial Court took note of the statement of P.W.1 in his cross examination that out of free will he had presented all the dowry articles to his daughter at the time of her marriage. 19. Taking note of such prevaricating stand learned Trial Court held the charge under Section 4 of D.P. Act not to have been proved. 20. On an analysis of the evidence on record, this Court does not find any infirmity in the judgment of the learned Trial Court in arriving at the conclusion that the charge under Section 4 of D.P. Act is not established. 21. The accusation relating to cruelty was also negatived taking note the evidence of P.Ws.7 & 8. It is apposite to state that though P.Ws.7 & 8 have stated in Court that they have seen the deceased weeping when they visited her house on the day of Rakhi Purnima but it has come out in their evidence that they have not stated so before the I.O. and therefore the learned Trial Court did not rely on their evidence. 22. The evidence of P.Ws.4 & 5 is very material though they have been declared hostile. It has been borne out from their evidence that the accused and the deceased were leading a happy conjugal life separated from their father and considering the same, negatived the accusation that the unfortunate death of the wife of the Respondent was on account of cruelty and because of administration of poison rather it has been stated in GCRLA No.67 of 2003 Page 6 of 10 the evidence of P.W.4 that owing to some dispute with her father the deceased committed suicide by taking poison. 23. The Prosecution in order to prove the guilt of the accused-Respondent relied on Exts.4 & 5 letters purportedly written by the deceased exemplifying cruelty meted out to her. Ext.4 is stated to have been sent through P.W.8-sister of the deceased and Ext.5 through her brother-P.W.2. As noted by the learned Trial Court while referring to the evidence of P.W.12-Investigating Officer that when he visited the house of the informant on 29.08.1997, eleven days after the occurrence dated 18.08.1997, the Exts.4 & 5 were not handed over to him. He has admitted that he has not seized any admitted handwriting of the deceased. In such background the Court did not find any illegality in the learned Trial Court not relying on Exts.4 & 5. 24. Evaluation of evidence in a case of acquittal has been reiterated by the Apex Court in the case of Mrinal Das & Others vs. the State of Tripura, 2011 (9) SCC 479. 25. It quoted with approval the judgments of the Apex Court in the case of State of Goa v. Sanjay Thakran & another reported in (2007) 3 SCC 755 and in the case of Chandrappa & others v. State of Karnataka reported in (2007) 4 SCC 415. 26. The relevant paragraphs of the judgment of the Apex Court in the case of Mrinal Das (Supra) is extracted hereunder:- 11. In State of Goa v. Sanjay Thakran this Court while considering the power of the appellate court to interfere in an appeal against acquittal, after adverting GCRLA No.67 of 2003 Page 7 of 10 to various earlier decisions on this point has concluded as under (SCC p. 768. para 16) “16…..while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court has the court below is perverse and committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with.” 12. In Chandrappa v. State of Karnataka, while considering the similar issue, namely, appeal against acquittal and power of to reappreciate, review or reconsider evidence and interfere with the order of acquittal, this Court reiterated the principles laid down in the above decision and further held that: (SCC p. 432, para 42) the appellate court the "42…. following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence GCRLA No.67 of 2003 Page 8 of 10 before it may reach its own conclusion, both on questions of fact and of law. reasons’, (3) Various expressions, such as, ‘substantial sufficient ‘good and and compelling grounds’, ‘distorted ‘very strong circumstances’, conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 27. On evaluation, as has been rightly held by the learned Trial Court that there is no evidence on record that the death of the deceased was caused on account of cruelty due to nonfulfillment of demand of dowry so as to fasten the accused- Respondent with the charge under Section 304-B of IPC. 28. Hence, scrutinizing the judgment of acquittal on the scale of evaluation as laid down by the Apex Court in the case of Mrinal Das (Supra), this Court is of the firm view that on the basis of evidence on record there is no scope to take a GCRLA No.67 of 2003 Page 9 of 10 different view, at variance with the judgment of acquittal recorded by the learned Trial Court. 29. The judgment of the learned Trial Court being based on cogent and coherent analysis of the evidence on record there being no evidence to disturb such finding, the GCRLA, being devoid of merit, stands dismissed. The bail bonds are discharged. (V. Narasingh) Judge D. Dash, J. I agree (D. Dash) Judge Orissa High Court, Cuttack, Dated the, 15th April, 2024/Ayesha Signature Not Verified Digitally Signed Signed by: AYESHA ROUT Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 09-May-2024 18:11:02 GCRLA No.67 of 2003 Page 10 of 10