The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GCRLA No.04 of 2002 From the judgment of acquittal dated 31st January, 2000 passed by the learned Sessions Judge, Dhenkanal in S.T. Case No.44 D of 1999. ---- State of Orissa …. Appellant -versus- Sudhakar Behera & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant Mr. S.K. Nayak, - Additional Government Advocate
Legal Reasoning
For Respondents - Mr.D. Panda, Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE G. SATAPATHY Date of Hearing : 12.02.2024 : Date of Judgment:29.02.2024 D.Dash,J. The State, by filing this Appeal, has called in question the order of acquittal passed by the learned Sessions Judge, Dhenkanal-Angul, Dhenkanal in Sessions Trial Case No.44 D of 1999 arising out of G.R Case No. 452 of 1997 corresponding to Sadar P.S (Dhenkanal) Case No.145 of 1997 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Dhenkanal. GCRLA No.04 of 2002 Page 1 of 8 {{ 2 }} . By the same, the Respondents, who had faced the Trial for commission of the offences under sections 498-A/304-B/34 of the Indian Penal Code, 1860 (in short, ‘the IPC’) and section 4 of the Dowry Prohibition Act, 1961 (for short, the D.P. Act) have been acquitted of the charges. 2. Prosecution Case:- As it reveals from the F.I.R. (Ext.1) lodged by one Dandua Behera, the father of deceased-Sanju Behera that one and half year prior to the lodging of the F.I.R. on 09.09.1997, his daughter Sanju was given in marriage to accused Sudhakar, son of accused Sikar. At the time of marriage, no dowry had been given. However, after the marriage the accused persons, who are the husband and his relations, started quarrelling with Sanju (deceased). On 09.09.1997 morning around 7 a.m., P.W.4, the father of Sanju came to know that Sanju in the previous night had committed suicide by hanging herself. So, he (P.W.4), his wife (P.W.2) and son (P.W.1) went to the house of the accused where they saw Sanju lying dead. They suspected Sanju to have been killed by the accused persons. Thereafter, information in writing being lodged at Dhenkanal Sadar Police Station, criminal case was registered and investigation was taken up by the Investigating Officer (I.O.- P.W.7). Inquest being held over the dead body of the deceased by the I.O. (P.W.7), the same was sent for Post Mortem Examination to the District Headquarter Hospital, Dhenkanal. The I.O. (P.W.7) GCRLA No.04 of 2002 Page 2 of 8 {{ 3 }} then examined few witnesses including the Informant (P.W.4) and his family members. The articles which, according to the I.O. (P.W.7), were incriminating were seized under seizure lists and sent for chemical examination through Court. On completion of investigation, Final Form was submitted placing the accused persons to face the trial for commission of offence under section 302/304-B of the IPC and section 4 of the D.P. Act. 3. On receipt of the Final Form as above, the learned S.D.J.M., Dhenknal having taken cognizance of those offences after observing formalities committed the case to the Court of sessions. That is how the trial commenced against these accused persons for the said offences. 4. In the trial, from the side of the prosecution in total seven witnesses have been examined. Besides the same, the prosecution has proved several documents which have been admitted in evidence and marked Ext.1 to Ext.6. Out of those important are the F.I.R. (Ext.1), inquest report (Ext.2), Post mortem report (Ext.3) and seizure list of the wearing apparels of the deceased (Ext.5). 5. The accused persons having taken the defence of denial have examined one Kirtan Behera as D.W.1. 6. The Trial Court after detail examination of the evidence and their critical analysis has held that the prosecution has failed to GCRLA No.04 of 2002 Page 3 of 8 {{ 4 }} establish the charges against the accused persons beyond reasonable doubt and accordingly, they have been acquitted. 7. Heard Mr. S.K. Nayak, learned Additional Government Advocate and Mr. D.Panda, learned counsel for the Respondents at length. 8. Keeping in view the submissions made, we have carefully read the judgment passed by the Trial Court and have extensively travelled through the depositions of the witnesses and have perused the documents admitted in evidence and marked exhibits on behalf of the prosecution. 9. Before proceeding to address the rival submissions, we would like to put place on the record, the scope of interference in an appeal against the acquittal and when the same is justified. In exceptional cases, where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference – Pudhu Raja v. State (2013) 1 SCC (Cri) 430: (2012) 11 SCC 196; Phula Singh V. State of Himachal GCRLA No.04 of 2002 Page 4 of 8 {{ 5 }} Pradesh, 2014 AIR SCW 1499. See also Basappa v. State of Karnataka 2014 AIR SCW 1529. Interference with acquittal in appeal is justified only when there is element of perversity traceable from the findings recorded by the lower court in appreciation of evidence – Govindaraju v. State (2012) 2 SCC (cri) 533: (2012) 4 SCC 722. In Ramesh Harijan v. State of U.P. (2012) 2 SCC (Cri) 905: (2012) 5 SCC 777, it has been held as follows:- there are cases where The law of interfering with the judgment of acquittal is well- settled. It is to the effect that only in compelling exceptional circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide: State of Rajasthan v. Talevar & Anr., AIR 2011 SC 2271; State of U.P. v. Mohd. Iqram & Anr., AIR 2011 SC 2296; Govindaraju @ Govinda v. State by Srirampuram Police Station & Anr., (2012) 4 SCC 722; and State of Haryana v. Shakuntla & Ors., (2012) 4 SCALE 526). 10. In the touchstone of the aforesaid, now let us proceed to examine the evidence as to whether there arises the justification for reversing the judgment and order of acquittal recorded by the Trial Court. GCRLA No.04 of 2002 Page 5 of 8 {{ 6 }} P.W.1, who is the sister of the deceased. She is found to have clearly stated that there was no demand of dowry in the marriage which had taken place in the month of Falguna in the year 1996. Her further evidence is that five to six months after the marriage, the accused Sudhakar, the husband and other members of the family asked her deceased sister to bring a sum of Rs.5,000/- furniture, almiraha, gold, utensils etc. She has stated that when her sister had come to the house, she had disclosed about the same. But she is not stating that for that reason cruelty was meted out at her sister. It is her evidence that her sister disclosed about such demand, who had stated to have been assaulted and ill- treated by her husband and in-laws. This important evidence as to the disclosure of her sister about the torture is not receiving the support from the evidence of P.W.2, who is the mother of the deceased. She is not stating that her daughter Sanju had disclosed about such ill-treatment and torture although she states that as they were not able to meet the demand, the accused persons were assaulting and torturing Sanju. But she does not state as to wherefrom she got such information although she states that Sanju being tortured was frequently coming to their house. She, however, does not state that during that period Sanju was disclosing anything about the torture much less in citing any particular instance assigning any specific role to the accused persons. When she states that Sanju was being left in the house of GCRLA No.04 of 2002 Page 6 of 8 {{ 7 }} the accused persons by them, she is silent as to whether they had asked the accused persons about the reason for doing so and had taken any initiative to sort out the matter for ever. This conduct does not appear to be normal. P.W.4 is the father of the deceased and the husband of P.W.2. In his evidence, he for the first time is stating that accused Sudhakar, the husband of Sanju sent Sanju to their house asking her to get cash of Rs.6000/- and furniture when there was no such demand during the marriage. His further evidence is that since his financial condition was not good, he had been to the house of the accused persons and requested accused Sudhakar and his father that he would be complying the demand in due course of time. This is not the evidence of P.W.1 and P.W.2. It is his evidence that in spite of such assurance, the accused persons did not behave well with her daughter and went on torturing her. But nothing is stated as to in which way the torture was being meted out at Sanju. The evidence of all these witnesses with regard to demand and torture appears to be omnibus, when there is no evidence that there was any attempt to settle that dispute. When as per the prosecution evidence, the death has taken place on account of ante mortem hanging as has been clearly stated by the Doctor (P.W.3), who had conducted the autopsy over the dead body of the deceased, who too has ruled out any foul play, the evidence is not there on record as to any happening Page 7 of 8 GCRLA No.04 of 2002 {{ 8 }} to have been taken place either on that day or even few days before the incident. It is also not the evidence on record that the torture was to that extent and degree that it had driven the deceased to commit the suicide. The witnesses are not stating as to how many days before Sanju had come to their house and last stated about the torture. For all the aforesaid, we are of the considered view that the order of acquittal does not call for interference. We accordingly find no reason much less, any compelling reason to interfere with the order of acquittal against the accused persons as has been returned by the Trial Court so as to hold the impugned judgment is the outcome of perverse appreciation of evidence in unjustifiably eliminating any material evidence and thereby, acquitting the accused persons. 11.
Decision
In the result, the Appeal stands dismissed. G. Satapathy, J. I Agree. Signature Not Verified Digitally Signed Himansu Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 04-Mar-2024 11:34:50 GCRLA No.04 of 2002 (D. Dash), Judge. (G. Satapathy), Judge. Page 8 of 8