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THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 289 of 2004 (In the matter of an application under Section 374(2) of Criminal Procedure Code) Budhiram Gouda @ Budhia & another ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. L. Samantray, Advocate For the Respondent : Mr. S.J. Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 15.07.2025 : Date of Judgment: 31.07.2025 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 14.09.2004 passed by the learned Additional Sessions Judge, Bhanjanagar in S.C. No. 5 of 2003 (S.C. No.30/2003-GDC) arising out of G.R. Case No. 367 of 2002 (Buguda P.S. Case No. 136 of 2002), whereby the learned trial Court has convicted the appellants for the offence under sections 498-A/34 read with section 4 of the D.P. Act and sentenced them to undergo R.I. for two years each and to pay a fine of Rs.500/- each for the offence under Section 498 IPC and to pay a fine of Rs.500/- each, in default to undergo R.I. for two months and R.I. for six months and to pay a fine of Rs.500/-, in default to undergo R.I. for one month under Section 4 of the D.P. Act. 2.
Legal Reasoning
Heard Mr. L. Samantray, learned counsel for the appellant and Mr. S.J. Mohanty, learned counsel for the State. 3. The prosecution case in terse is that the informant P.W.1 lodged a written complaint before the Buguda P.S. on 04.08.2002 that his daughter Namita was married to appellant no.1 on 24.05.2002 according to Hindu rites and customs. After the marriage, his daughter was subjected to mental and physical torture by the appellants on demand of dowry of Rs.3000/-. In spite of assurance, as the informant failed to pay the amount, the torture continued and the accused persons tried to arrange second marriage of the appellant no.1. It was further alleged that Page 2 of 13 on 24.07.2002, the appellant no.1 and the deceased came to the house of the informant and remained till 27.07.2002. On 27.07.2002, the appellant no.1 along with the wives of his two elder brothers demanded Rs.3000/- and threatened that unless the amount is paid, they would kill Namita by strangulation and the appellant no.1 will marry again. It was the further allegation that on 04.08.2002 while the informant was ploughing land, at about 12 noon he got information from his niece Sumitra that Namita was murdered. Thereafter he went to his house immediately and ascertained from his wife about the fact, who disclosed that one Purna Chandra Gouda of village Rauti informed that Namita had expired. Thereafter, the informant proceeded to the house of the accused persons and ascertained about the fact that the accused persons had killed his daughter by strangulation and cremated the dead body. 4. On the basis of the aforesaid allegations, Buguda P.S. Case No. 136 of 2002 was registered for the offence punishable under Sections 498-A/304-B/306/201/34 of IPC read with Section 4 of the D.P. Act, corresponding to G.R. Case No. 367 of 2002 and after investigation, Page 3 of 13 charges were framed against the appellants for the offences as mentioned above and they were put to trial. 5. The prosecution in order to prove its case examined as many as ten witnesses, whereas the defence took a stand of denial and claimed trial. 6. P.W.1, was the informant, P.W.2 was the co-villagers of the informant who accompanied him to the house of the accused persons, P.W.3 was the witness to the seizure, P.Ws.4 and 5. were the independent witnesses, P.W.6 is the wife of the informant, P.W.7 is the son of the informant, P.W.8 is the maternal uncle of the deceased, P.Ws 9 and 10 were the police officers, who investigated the present case. 7. The trial court analyzing the evidence on its appreciation has arrived at the following conclusion:- “22. Explanation appended to Section 498-A of the IPC envisages harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security would also constitute cruelty. Demand of dowry is prohibited under law and therefore if any demand made before the marriage at the time of marriage or at any time Page 4 of 13 after the marriage regarding dowry then the act is punishable u/s 4 of the D.P. Act. Ext.1 is the FIR of this case and it is alleged in the FIR that all the accused persons along with their family members always demanded that Namita should bring the balance of Rs.3000/- towards dowry and as the same was not paid Namita was subjected to different varieties of mental cruelty. It is also alleged that since the payment of Rs.3000/- was not made by the informant after the marriage therefore the accused persons were trying for the second marriage of Budhiram. It also transpires from the FIR that on 27.07.2002 accused Budhiram along with two wives of his elder brothers have come to the house of the informant and demanded the aforesaid balance Rs.3000/- towards dowry. P.W.1 is the first informant and he stated in his evidence that the accused was not satisfied with her daughter as she was not able to work in the house of the accused properly and for that the accused persons contacted at village Bhabasaro to give accused Budhiram in 2nd marriage. It also transpires from the evidence of p.w.1 that when her daughter left his house prior to her death she was asking him for balance amount of Rs.3000/- which p.w.1 has not given at the time of her marriage out of the agreed amount of Rs.10,000/- and for that she was listening comments from her in-laws. It also that Namita transpires apprehended danger to her life for non-payment of balance amount of Rs.3000/- towards dowry. The aforesaid evidence of p.w.1 inspires confidence of this court as it was not discredited during his cross examination regarding the aforesaid demand of dowry. P.W.2 stated in her evidence that at the time of marriage of Namita p.w.1 had given Rs.7000/- as dowry and undertook go give rest Rs.3000/- after the marriage. P.W.6 is the mother of deceased Namita and she also categorically stated in her evidence that at the time of marriage a cash of Rs.7000/- was paid as agreed towards dowry. It also transpires from her evidence that on the last occasion while her daughter was in her house accused Budhiram came along with the wives of his elder the evidence of p.w.1 from Page 5 of 13 brothers and at that time Namita asked her about the balance of Rs.3000/- for which she took time for two months. It is also her evidence that Namita told her that as the amount of Rs.3000/- was not paid she was disliked by her family members. P.W.7 is the brother of the deceased. He also stated in his evidence that Namita was telling to take the balance amount of Rs.3000/- out of the agreed amount of Rs.10,000/-. It is submitted by the learned counsel for the defence that several contradictions are appearing in the evidence of p.ws 1, 6 and 7 regarding the demand of dowry and harassment to deceased Namita on the ground of demand of dowry and as such there is no clear evidence on record regarding demand of dowry and harassment of Namita on the ground of demand of dowry. It is submitted that there is evidence on record that accused Budhiram and his other brothers were separated prior to the marriage and therefore the other brothers of accused Budhiram cannot be treated as members of the family of Budhiram. Section 498-A of the IPC envisages regarding cruelty to a woman by her husband or relatives of her husband. Even assuming for the sake of argument that brothers of Budhiram had already been separated from him prior to the marriage that does not mean that they ceased to be relatives of Budhiram. The evidence when read as a whole indicate that all the accused persons have caused mental cruelty to said Namita on the ground of demand of dowry. Demand of dowry is prohibited by Law and therefore such illegal demand of dowry caused severe mental cruelty to deceased Namita. According to the learned counsel for the defence unless ingredients of section 304-B of the IPC are proved and established there can be no conviction u/s 498-A of the IPC. In the decision reported in (2003) 26 O.C.R. (SC) at page 407 Kaliya Perumal and another v. State of Tamilnadu the accused was facing his trial u/s 304-B. In the aforesaid decision it has been held cruelty is the common ingredient of section 304-B and 498-A of the IPC. It has also been held in the aforesaid decision that a person charged with and acquitted of an offence u/s Page 6 of 13 304-B of the IPC can be convicted u/s 498-A of the IPC if such a case is made out. 23. In the case of Ramesh Kumar v. State of Chhatisgarh reported in (2001) 21 OCR (SC) at page 667 a Three Judges Bench of the Supreme Court has upheld the conviction of the accused u/s 498-A of the IPC although the accused was acquitted in respect of the offence u/s 306 of the IPC. It has been clearly held in the aforesaid decision that section 498-A and 306 of the IPC are independent and constitute different offences. The decision cited by the learned counsel for the defence reported in (2003) 25 O.C.R. at page 511 State of Haryana v. Jai Prakash and others has got no application to this case. Similarly the decision cited by the learned counsel for the defence reported in (2004) 27 O.C.R. (S.C.) at page785 Ashok Vishnu Davare v. State of Maharastra has also no application to the facts of this case. Namita died within 2 ½ months from the date of her marriage. There is acceptable and believable evidence on record that she was subjected to mental cruelty on the ground of illegal demand of dowry made by the accused persons even demand was made after the marriage. Large no.of dowry articles were seized during investigation. The accused persons have committed the aforesaid offences u/s 498-A/34 of the IPC and u/s 4 of the D.P. Act in furtherance of their common intention as it appears from the circumstances of the case. Taking into consideration the evidence on record I am to conclude that the prosecution has proved point nos.5 and 6 against all the accused persons.” 8. The appellants having been convicted for the offence under Section 498-A IPC read with Section 4 of the D.P. Act while acquitting them of the charges under Section 302/306/304-B/201/34 IPC. On the account of their conviction for offence under Section 498-A IPC and Page 7 of 13 Section 4 of D.P. Act, they have been sentenced on each count. Aggrieved by the afore referred findings culminated to conviction and sentence, the appellants have preferred this appeal. 9. Mr. L. Samantray, learned counsel for the appellants has submitted that conjoint reading of the evidence adduced by the prosecution witnesses would not make out any offence much less the offence under Section 498-A IPC and Section 4 of the D.P. Act. At the same time, he submits that the appellants have sufficiently punished for having undergone the rigors of the trial and pendency of appeal since 2004. He has taken me to the evidence of all the witnesses in detail to persuade this Court that no case as such is made out on the basis of the prosecution evidence, as borne out on record. 10. Mr. S.J. Mohanty, learned Additional Standing Counsel appearing for the State made rival submission to counter to the submission made by Mr. Samantray and justify the impugned judgment. 11. The judgment and order of acquittal passed by the learned trial court in so far as the offence under sections 302/306/304-B/34 of IPC is Page 8 of 13 concerned being not challenged by the State has attained finality. Even otherwise the trial court has rightly appreciated the evidence on record to form an opinion that the prosecution has failed to prove its case beyond all reasonable doubt. Now coming to the offence under Section 498-A IPC read with Section 4 of the D.P. Act, if the evidences are analyzed, it is apparent on record that the demand is in fact germinating from a customary settlement arrived at in the village before the community. In fact the prevailing practice in the community is that for every marriage the community decides what would be the gift/dowry items to be paid by the bride to groom and vice versa. That would be emanating from the evidence of P.W.1, the father of the victim, which is relevant. In the cross examination, P.W.1 has stated “I have got three sons and two daughters. I have no landed property and I cultivate some lands by Bhaga from some other persons, i.e., the only source of my family maintenance. The marriage was regd. by the Kula committee before a day of the marriage of my daughter. I obtained the receipt of regn. Of marriage from our Kula committee of Belaguntha.” He has also stated that he has not made any complaint before the Kula Committee that the Page 9 of 13 accused gave threatening to his daughter for the second marriage and he could also report to the Kula Committee about the demand of balance amount and threatened for the second marriage. He further went on deposed that “it is a fact that I stated before the I.O. that the dowry amount and articles to be given in the marriage were decided and settled by our Kula committee. It is not a fact that the villagers stated that the deceased died out of diarrhea but not vomiting blood. It is not a fact that I did not mentioned in my FIR nor stated to I.O. that my daughter told me that the accused persons have acquising her of not doing the domestic work properly and for that they are contacting for a second marriage at Bhabasar with her husband. It is not a fact that the accused persons have never demanded any cash or any other dowry articles from me.” P.W.2 in his testimony has stated that at the time of marriage P.W.1 Banamali had given Rs.7000/- as dowry and undertook to give Rs.3000/- after the marriage. After ten days of marriage, the son-in-law and daughter of Banamali Gouda, P.W.1 came to the house of Banamali Gouda for customary visit. In the similar line, P.W.6 the mother of the victim has also deposed. She in her testimony has stated that “all the Page 10 of 13 necessary dowry articles including the furniture with a cash of Rs.7000/- out of agreed amount of Rs.10,000/- was given at the time of marriage. Both my daughter and her husband returned to our house on the 10th day of their marriage. They stayed for about 10 to 12 days and thereafter returned after taking the new clothes. Both my daughter and her husband demanded the balance amount of Rs.10,000/-. When I took time to give the same later on, my daughter told me that the family members of her husband are passing comments and dissatisfied with her.” She has also stated that the balance amount of Rs.3000/- has been consistently demanded by her son-in-law. 12. Conjoint reading of the evidence of all the witnesses lead to the only conclusion that it is the Kula Committee (community), who decided the dowry amount to be Rs.10000/-, apart from the other household articles. Out of the said ten thousand rupees, seven thousand rupees was paid at the time of marriage. However, there was a consistent demand by the son-in-law and the family members in so far as remaining Rs.3000/- the agreed amount is concerned. This aspect of the matter has been eminently coming on record without any variation. Therefore, the trial Page 11 of 13 court’s finding in regard to the charges under Section 498-A of IPC and Section 4 of the D.P. Act cannot be found faulted with. Hence, I affirm the same. At this stage, Mr. Samantray, learned counsel for the appellants submitted that the appellant no.1-Budhiram has already undergone the entire sentence, as awarded by the trial court, and has been released from jail. However, appellant nos.2, 3 and 4 have already undergone about six month imprisonment and they were released on bail. Therefore, he submits that a lenient view should be taken. He submitted that appellant no.2 was 30 years, whereas appellant nos.3 and 4 were 42 and 28 years at the time of the alleged incident. The offence is emanating from the matrimonial dispute and the appellants have no criminal antecedents. Therefore, he submitted that either the sentence may be modified or the benefit of the Probation of Offenders Act may be given to the appellant nos.2, 3 and 4. 13. Taking into consideration the submission made by the learned counsel at the bar, although I affirm the conviction recorded by the learned trial court against the appellants under section 498-A IPC read with Section 4 of the D.P. Act, but think it appropriate to modify the Page 12 of 13 sentence. Considering the entire features of the case, I could have dealt with the appellant nos.2, 3 and 4 under Section 4 of the P.O. Act. However, it has been brought to my notice by Mr. Samantray, learned counsel for the appellants that appellant nos. 2, 3 and 4 have undergone custody for six months, which has not been disputed by Mr. S.J. Mohanty, learned Addl. Standing Counsel. When the appellant nos.2, 3 and 4 have already undergone imprisonment for six months and appellant no.1 has already served out the entirety of sentence, injustice would be compounded if I now grant them the treatment under the Probation of Offender’s Act. I would, therefore, while affirming conviction, reduce the sentence to the period already undergone by the appellant nos.2, 3 and 4. 14. Accordingly, the CRLA is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 31st July, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 01-Aug-2025 20:18:06 Page 13 of 13