The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 20 of 2004 (In the matter of an application under Section 374 of Criminal Procedure Code) Sakuntala Pani and others ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. D.K. Mishra, Advocate For the Respondent : Ms. Sarita Moharana, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 11.07.2025 : Date of Judgment: 18.07.2025 S.S. Mishra, J. The present criminal appeal filed by the appellants under Section 374 of Cr.P.C. is directed against the judgment of conviction and order of sentence dated 19.01.2004 passed by the learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Angul in C.T.
Facts
(Sessions) No. 48 of 2003, whereby the learned trial Court has convicted the three appellants of the charges under Sections 498-A/304-B IPC read with Section 4 of the D.P. Act and sentenced them to undergo R.I. for one year and to pay a fine of Rs.200/-, in default R.I. for seven days in lieu of conviction under Section 498-A IPC, R.I. for seven years and to pay a fine of Rs.500/- for the offence punishable under Section 304-B IPC and R.I. for six months and to pay a fine of Rs.200/-, in default R.I. for seven days for the offence punishable under Section 4 of the D.P. Act. 2.
Legal Reasoning
no.2 is also covered by the ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra1 and Dhani @ Dhaneswar Sahu vs. State of Orissa2. 11. 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 no.2 to suffer imprisonment, this Court directs appellant no.2 to be released under Section 4 of the Probation of Offenders Act for a period of one year on her 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 1 2012 (Supp-II) OLR 469 2 2007 (Supp.II) OLR 250 Page 10 of 11 and in the meantime, the appellant no.2 shall keep peace and good behavior and she shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year. However, the sentence regarding payment of fine is enhanced to Rs.10,000/- (rupees ten thousand), which shall be disbursed to the father of the deceased in accordance with Section 357 Cr.P.C, in default of payment of fine, the appellant no.2 shall undergo S.I. for one month. 12. With the above observation, the CRLA is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 18th July, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 21-Jul-2025 18:48:41 Page 11 of 11
Arguments
Heard Mr. D.K. Mishra, learned counsel for the appellants and Ms. Sarita Moharana, learned counsel for the State. 3. The prosecution case in nutshell is that the deceased Dali Pani married to appellant no.3 on 06.03.2002. At the time of marriage there was a demand of Rs.50,000/-, besides other articles. Due to bad financial condition, the father of the deceased paid Rs,20,000/- at the time of marriage and assured to pay the balance amount afterwards. It is alleged that due to non-payment of the balance amount, the deceased was Page 2 of 11 tortured and ill treated. The informant had also requested the accused persons not to torture the deceased and assured to pay the balance amount. On 27.07.2002 night the informant received the information that the deceased died. The informant suspected that the accused persons had killed the deceased, for which FIR was lodged on 28.07.2002 under Section 498-A/302/304-B/34 IPC read with 4 of the D.P. Act. 4. After investigation, charges were framed against the appellants for the offences as mentioned above and they were put to trial. The prosecution examined as many as eighteen witnesses to prove its case, whereas the defence took a stand of denial. The most important witness the prosecution examined to establish its case is P.W.1, who is the father of the deceased, P.W.2 is the uncle of the deceased, whereas P.Ws.3 and 4 are co-villagers, those who have supported the case of the prosecution and the prosecution used their testimony for corroborating with the testimony of P.Ws.1 and 2. The other witnesses are the witnesses to the inquest, seizure and the witness to the fact that appellant no.2 had taken the deceased to the hospital and the doctor by examining the deceased Page 3 of 11 declared her dead. The trial court dealt with the evidence of the prosecution witnesses and came to the conclusion that all the appellants are guilty of offence punishable under Section 304-B/498-A IPC along with the offence under Section 4 of the D.P. Act and accordingly imposed the sentence on each count. Aggrieved by the aforesaid judgment of conviction and order of sentence, the appellants have filed the present appeal. 5. The present appeal is pending since 2004. While the appeal was pending, the appellant no.3, the husband of the deceased died on 23.08.2011, whereas the appellant no.1, the mother-in-law of the deceased died on 12.04.2012. Therefore, the appeal qua the appellant no.1 and appellant no.3 stood abated. Therefore, the present appeal qua appellant no.2 only survives. 6. Mr. Mishra, learned counsel for the appellant no.2 at the outset submitted that he would confine his argument to the quantum of sentence and the nature of offence. He has pointed out that appellant no.2 was arrested on 28.07.2002 and she was released on bail vide order dated Page 4 of 11 11.09.2002. Hence, she has already undergone the custody for one month and fourteen days. Mr. Mishra, has taken me to the evidence of all the witnesses and pointed out that none of the witnesses have made any specific allegation against the appellant no.2, save and except stating that all the accused persons have committed the crime. The appellant no.2 is the sister-in-law of the deceased and there is not a single sentence uttered by any of the witnesses making any specific allegation against the appellant no.2. Even then, the court below by invoking the doctrine of presumption convicted the appellants for the offence punishable under Section 304-B IPC. Mr. Mishra, further submitted that in so far as the charge under Section 498-A IPC or for that matter Section 4 of the D.P. Act, there is no iota of evidence brought on record to suggest that the present appellant being sister-in-law of the deceased has demanded the dowry or meted out tortured to the deceased. 7. In the light of the submission made by Mr. Mishra, I have meticulously gone through the evidence on record. True that none of the witnesses have made any single allegation against the present appellant Page 5 of 11 except saying that all the accused persons have tortured, demanded dowry and poisoned Kalpana (deceased). The independent witnesses P.W.8 and P.W.14 have also corroborated with the same. P.W.8 stated that “I took deceased Kalpana, accused Subhendu, his sister-in-law and Biranchi Pani in my car to Kosala hospital but at the hospital after checking, the doctor declared her dead and advised us to take her back. So, we brought back her dead body to the house. He further deposed that Subhendu requested me to take my car to his father-in-law’s house. So, Satya and Gopal Pradhan went in my car to village Gurujang and called the father of Kalpana stating that the condition of his daughter was serious. The parents of Kalpana came with us in our car to our village”. This part of evidence is being corroborated with the testimony of P.Ws. 1 and 2 and the presence of the present appellant no.2 along with Subhendu in the entire sequence of event is also apparent. P.W.14, who was the doctor, deposed that on 27.07.2002 at about 2.00 A.M. at night some family members of the accused had brought the dead body of the deceased and had kept the same on the road in front of the Kosala hospital. They requested me to see the patient. So, I saw the patient who Page 6 of 11 was inside the car and declared her to be dead and advised them for post mortem of the dead body. But they did not accept my advice and took the dead body somewhere else. The testimony of said P.W.14 also stood corroborated with the testimony of P.W.8 and other witnesses. In the same breath the evidence of P.W.3 needs to be read, who has stated that “I saw Kalpana was lying dead and foam was coming out of her mouth in my presence and the accused persons requested the informant not to report the fact at the police station and when the informant asked them to disclose the truth, they disclosed that they had killed Kalpana by giving poison. Then the informant lodged the FIR at Chhendipada Police Station and police came and held inquest over the dead body of Kalpana and prepared the inquest report in my presence”. This witness has also deposed regarding the demand of dowry. The testimony of P.W.3 directly corroborated with the testimony of P.W.2, who has stated that the accused Subhendu offered to return the cash of Rs.20,000/- and the other dowry articles and also offered another Rs.15,000/- and requested not to report the matter to the police. The witness has also stated this offer was made in presence of other witnesses. Apart from that the Page 7 of 11 evidence of other witnesses are also clear and unambiguous and trustworthy to be relied upon. However, it is true that none of the witnesses have very specifically taken the name of appellant no.2, but the complacity of appellant no.2 in commission of the crime cannot be ignored because of her presence in the scene of crime and participation in the offence. Therefore, the trial court appreciated the evidence in detail and arrived at the conclusion, as has been mentioned above. 8. In that view of the matter, I am not inclined to interfere with the judgment of the trial court recording of conviction against the appellant no.2. However, the submission of Mr. Mishra regarding the quantum of sentence needs to be considered in view of the fact that the incident had taken place in the year 1998 and at that point of time appellant no.2 was 42 years of age and at present the appellant no.2 is 68 years of age. In the meanwhile, the mother-in-law of the deceased and husband of the deceased has already been expired. The appellant is a lady and she is at the evening of her life. Therefore, sentencing her to custody to serve out the remaining period of sentence would be harsh at this stage. Therefore, Page 8 of 11 the prayer of Mr. Mishra to consider for grant of benefit under the Probation of Offender’s Act is worth consideration. The appellant no.2 has also requested the learned trial court for grant of benefit under the Probation of Offenders Act, which was turned down by the learned trial court, inter alia stating as under:- “11. I am not inclined to extend the benefit of the Probation of Offenders Act in favour of the convicts in this case as the convicts have not only demanded dowry of cash of Rs.50,000/- at the time of the marriage negotiation but have also tortured and assaulted the deceased after the marriage demanding for payment of balance Rs.30,000/- resulting in than on normal death of circumstance within 7 years of her marriage which is otherwise known as a case of dowry death and if such type of left unpunished without any exemplary offenders are punishment there would be no end and to cases of dowry death which are increasing day to day in the present society.” the deceased otherwise 9. Much water has already flown under the bridge by now and about thirty years have already lapsed in between. The appellant no.2 is now become very old. Therefore, I am inclined to consider the prayer made by Mr. Mishra for grant of the benefit of the Probation of Offender’s Act. Page 9 of 11 10. It is a fact that in the meantime the other two appellants have expired. In the prevailing scenario, regard being had to the age of the appellant no.2 and her societal status, clean antecedents and the fact that the incident had taken place in the year 2002, I am of the considered view that appellant no.2 is entitled to the benefit of the Probation of Offenders Act read with Section 360 of Cr.P.C. The case of the appellant