The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA NO.37 OF 2011 From the judgment and order dated 17.12.2010 passed by the Addl. Sessions Judge, Boudh in S.T. Case No.3 of 2010. -------------------- Durjan @ Duryodhan Mahananda ……… Appellant -Versus- State of Odisha ……… Respondent For Appellant: - Ms. Chandana Mishra Amicus Curiae For Respondent: - Mr. Priyabrata Tripathy Addl. Standing Counsel --------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO ------------------------------------------------------------------------ Date of Hearing and Judgment: 24.01.2024 ------------------------------------------------------------------------ S.K. SAHOO, J. The appellant Durjan @ Duryodhana Mahananda faced trial in the Court of learned Additional Sessions Judge, Boudh in S.T. Case No.3 of 2010 for offences punishable under sections 498-A, 406, 302 in alternative 304-B of the Indian Penal Code (for short, ‘I.P.C.’) and sections 4 and 6 of the Dowry Prohibition Act, 1961 (for short, ‘D.P. Act’). Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 2 ] The learned trial Court while acquitting the appellant of the charge under section 406 of the I.P.C. and section 6 of the D.P. Act, found him guilty under sections 498-A and 304-B of the I.P.C. and section 4 of the D.P. Act vide impugned judgment and order dated 17.12.2010 and sentenced him to undergo rigorous imprisonment for a period of ten years for the offence under section 304-B of the I.P.C., to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo rigorous imprisonment for a further period of six months for the offence under section 498-A of the I.P.C. and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo sentence for a period of three months for the offence under section 4 of the D.P. Act. The substantive sentences were directed to run concurrently. Prosecution Case: 2.
Legal Reasoning
The prosecution case, as per the first information report (hereinafter ‘F.I.R.’) (Ext.8) lodged by Fagua Bibhar (P.W.5), the father of Pinki Bibhar (hereinafter, ‘the deceased’) before the Officer in-charge of Kantamal police station on 23.08.2009, is that two years prior to the date of lodging of the JCRLA No. 37 of 2011 Page 2 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 3 ] F.I.R., the deceased was given in marriage with the appellant and since there was a dispute between the parties relating to the demand of dowry, seven days after the marriage, the deceased came to reside at her paternal place and on 20.08.2009, on account of Nuakhai festival, the deceased was taken back to her in-laws house by the family members of the appellant and the deceased was set ablaze in her in-laws house by the appellant as well as other family members for which she was admitted in Sonepur Hospital, where she succumbed to burn injury in the morning hours of 23.08.2009. On the basis of such written report presented by P.W.5, Kapileswar Behera (P.W.13), the Officer in-charge of Kantamal police station registered Kantamal P.S. Case No.47 dated 23.08.2009 under sections 498-A/302/304-B/34 of the I.P.C. against the appellant and his other family members and took up investigation of the case. During the course of investigation, P.W.13 examined the informant and recorded his statement, issued requisition to the Sub-Divisional Magistrate, Boudh for deputing an Executive Magistrate to remain present at Sonepur District Headquarters Hospital for conducting inquest over the dead body of the deceased and proceeded to the said hospital and in the presence of Executive Magistrate -cum- JCRLA No. 37 of 2011 Page 3 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 4 ] Tahasildar, Kantamal, he held inquest over the dead body of the deceased and prepared the inquest report marked as Ext.3. He sent the dead body of the deceased for post mortem examination and on 23.08.2009, he visited the spot, prepared the spot map, examined the witnesses, seized the wearing apparels of the deceased from the appellant’s house along with other incriminating articles as per seizure list Ext.2. Some broken bangles were seized after those were produced by a constable who escorted the dead body for post mortem examination and those were seized as per seizure list Ext.10. The appellant was arrested on 30.08.2009 and forwarded to the Court. The I.O. received the post mortem report and seized the dowry articles from the house of appellant as per seizure list Ext.5/1 and those articles were given in the zima of the father of the deceased as per zimanama vide Ext.4. The seized articles were sent for chemical examination to the S.F.S.L., Rasulgarh, Bhubaneswar through the learned J.M.F.C., Kantamal and on completion of investigation, charge-sheet was submitted against the appellant under sections 498-A, 302, 304-B, 406 of the I.P.C. and sections 4 and 6 of the D. P. Act. JCRLA No. 37 of 2011 Page 4 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 5 ] Framing of Charges: 3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court charged the appellant under sections 498-A, 302, 304-B, 406 of the I.P.C. and sections 4 and 6 of the D.P. Act and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. Prosecution Witnesses & Exhibits: 4. In order to prove its case, the prosecution examined as many as sixteen witnesses. P.W.1 Dr. Govinda Chandra Mishra was working as Asst. Surgeon at District Headquarters Hospital, Sonepur. He, on police requisition, conducted post mortem examination over the dead body of the deceased and proved his report vide Ext.1. P.W.2 Pitabas Sahu stated that he was requested by the appellant and his father to shift the deceased from village Chilkamal to Kantamal Hospital in his jeep. Accepting such request, he went to the village and took the deceased, along with the appellant and some of his family members, to Kantamal JCRLA No. 37 of 2011 Page 5 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 6 ] Hospital. He also stated that after sometime, he was again requested to shift the deceased to Sonepur Hospital, which he did. P.W.3 Ganeswar Mahananda is a co-villager of the appellant who stated that though he knew the appellant but he had no knowledge as to whom he had married. He also stated that he has no idea as to why the appellant was behind the bars. The prosecution declared this witness as hostile. P.W.4 Magasira Mahananda is the uncle of the deceased and brother-in-law of the informant (P.W.5). He stated to have been informed by the informant that there was dissension between the appellant and the deceased for an issue relating to dowry articles. He also stated that the deceased was staying at her maternal home few days after her marriage to the appellant. He was later declared hostile by the prosecution. P.W.5 Fagua Bibhar is the father of the deceased and also the informant in this case. He narrated the incident as it unfolded on the date of occurrence. He is also a witness to the preparation of the inquest report vide Ext.3. P.W.6 Titu Bibhar is the elder brother of the deceased who narrated the incident in similar line with the informant. He stated that on the next day of occurrence, the JCRLA No. 37 of 2011 Page 6 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 7 ] informant informed him over telephone that the deceased had been set ablaze and was shifted to hospital. He proceeded to the hospital and upon reaching there, he found the deceased dead. He further stated that except face, head and foot, the rest of her body was completely burnt. He is witness to the preparation of the inquest report vide Ext.3. P.W.7 Bapun Bibhar is the cousin brother of the deceased who stated that when he had gone to the house of the informant some days after the marriage of the deceased, he found the deceased present there. He made a query to the deceased as to why she had come back to her maternal home so early after the marriage, to which she had replied that she was physically tortured by the appellant in connection with demand of dowry. P.W.8 Nabaghana Bibhar stated that though he knew the informant (P.W.5) but he neither knew the appellant nor knew the deceased. He was declared hostile by the prosecution. P.W.9 Kamala Bandaki stated that he did not know the appellant. He also stated that he neither knew the deceased nor the informant (P.W.5). He denied having any knowledge about the factum of the incident. He further stated that at no JCRLA No. 37 of 2011 Page 7 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 8 ] point of time he was examined by the police in relation to this case. He was declared hostile by the prosecution. P.W.10 Sudama Naik stated that he knew the appellant. He further stated that the police took his signature at Kantamal police station after showing him a gunny bag carrying something inside it. P.W.11 Santosh Kumar Mahakud was posted as a constable at Kantamal Police Station who escorted the dead body of the deceased for post-mortem examination and after such examination, submitted command certificate along with four pieces of broken bangles of the deceased to the I.O., which were handed over to him by the doctor (P.W.1). He further stated that upon his production, the I.O. seized both the items immediately as per seizure list Ext.7. P.W.12 Sadasiba Mahananda was working as a Gram Rakhi under Kantamal Police Station. He is a witness to the seizure of command certificate as well as four pieces of broken bangles, produced by P.W.11, as per seizure list Ext.7. P.W.13 Kapileswar Behera was working as the Officer in-Charge of Kantamal Police Station. Upon receipt of written report from the informant (P.W.5), he registered the criminal JCRLA No. 37 of 2011 Page 8 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 9 ] case and took up the investigation and upon completion of investigation, he submitted charge sheet against the appellant. The prosecution exhibited twelve documents. Ext.1 is the post mortem report, Ext.3 is the inquest report, Ext.4 is the zimanama, Ext.5/1 is the seizure list in respect of some dowry articles, Ext.6 is the dead body challan, Ext.7 is the seizure list in respect of command certificate and four pieces of broken bangles of the deceased, Ext.8 is the F.I.R., Ext.9 is the spot map, Ext.10 is the seizure list in respect of dowry article lists, Ext.11 is the requisition to ascertain the date of birth and age of the appellant, Ext.11/2 is the report of the head master and Ext.12 is the office copy of the memo no.1239 dated 07.11.2009. Defence Plea: 5. The defence plea of the appellant was one of complete denial. The appellant disputed his marriage with the deceased and pleaded that since there was no good relationship between him with the witnesses for which he has been falsely entangled in the case. JCRLA No. 37 of 2011 Page 9 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 10 ] Findings of the Trial Court: 6. The learned trial Court, after assessing oral as well as documentary evidence available on record, has been pleased to hold that the deceased was the wife of the appellant and in the fateful night, she was in the house of the appellant. It has been further held that the appellant was torturing and harassing the deceased in relation to demand of dowry for which being unable to tolerate the said torture and harassment, ten to twelve days after the marriage, she returned back to her paternal home and expressed her reluctance to go back to her in-laws’ house. It has been further held that medical evidence is very clear that the deceased died out of shock and extensive burn injuries. It has been further held that in view of the evidence available on record, it can be safely concluded that the appellant caused the unnatural death of the deceased in connection with demand of dowry and he is liable for causing dowry death of the deceased. It has been further held that the prosecution has not been able to establish the offence under section 406 of the I.P.C. and section 6 of the D.P. Act, however, on overall analysis of the evidence, it has been held that the prosecution has only been able to establish the offence under section 498-A of the I.P.C. JCRLA No. 37 of 2011 Page 10 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 11 ] and section 4 of the D.P. Act and accordingly, found the appellant guilty of such charges. Contentions of the Parties: 7.
Legal Reasoning
Ms. Chandana Mishra, learned counsel was engaged as Amicus Curiae to argue the appeal on behalf of the appellant and she was handed over the paper book. She placed the evidence of all the witnesses, impugned judgment and argued that there is no clinching evidence available on record that there was any demand of dowry at the time of marriage and the evidence of vital witnesses i.e. P.W.5, the father of the deceased and P.W.6, the brother of the deceased is totally silent in that respect. Learned counsel further argued that though P.W.5 has stated about the dying declaration of the deceased at two instances i.e. first at the spot and then at the hospital, but in the F.I.R. (Ext.8), he has not mentioned anything in that respect and there are material contradictions in the evidence of P.W.5. She further argued that the evidence of the driver of the vehicle (P.W.2), who took the deceased to the hospital also indicates that P.W.5 had not accompanied the deceased to the hospital and even the presence of P.W.5 in the house of the appellant on the fateful night has not been mentioned in the F.I.R. Learned counsel further argued that the deceased came back to her JCRLA No. 37 of 2011 Page 11 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 12 ] paternal place within ten to twelve days of her marriage and therefore, there is no evidence that till the date of death, which took place almost one year and five months after the marriage, she was subjected to torture, physical and mental cruelty in connection with demand of dowry by the appellant and therefore, even if the death of the deceased took place within seven years of marriage and it was an unnatural death, but in absence of proving that the appellant subjected her to torture in connection with demand of dowry soon before the death, the ingredients of the offence under section 304-B of the I.P.C. are not satisfied and therefore, it is a fit case where the benefit of doubt should be extended in favour of the appellant. Mr. Priyabrata Tripathy, learned Addl. Standing Counsel, on the other hand, supported the impugned judgment and argued that the deceased specifically stated before P.W.5, when she came to reside in her paternal place ten to twelve days after her marriage with the appellant that she was physically tortured on account of demand of dowry by the appellant for which she was reluctant to return back to her in-laws house even though the in-laws family members had come to take her back. Learned counsel further argued that with much assurance given by the in-laws family members, the deceased was taken to her JCRLA No. 37 of 2011 Page 12 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 13 ] matrimonial home and within a short time, the unfortunate incident had occurred and the post-mortem report finding clearly indicates that it is a case of burn injury and if everything was well and good, after the deceased returned back to her matrimonial home, there was no earthly reason for the deceased to meet with an unnatural death. He argued that except taking a plea of denial, nothing has been stated by the appellant in his accused statement as to how and why the deceased sustained burn injury which resulted in her death. Learned counsel further argued that a list of the dowry articles given at the time of marriage was seized as per seizure list Ext.10 which was handed over to the I.O. (P.W.13) and that corroborates the evidence of the prosecution witnesses that dowry was given at the time of marriage and being dissatisfied with such articles, the deceased was subjected to physical and mental torture for which she came to reside at her paternal place and therefore, the learned trial Court is quite justified in holding the appellant guilty under sections 498-A and 304-B of the I.P.C. and section 4 of the D.P. Act. JCRLA No. 37 of 2011 Page 13 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 14 ] Conviction of appellant under section 304-B of I.P.C. for causing dowry death of the deceased: 8. Adverting to the contentions raised by the learned counsel for the respective parties, there is no dispute that the deceased met with unnatural death. P.W.1 who conducted post mortem examination has stated that the cause of death was due to shock and extensive burn injuries and he has proved the P.M. Report vide Ex.1 which is not disputed by the learned Amicus Curiae. Since the prosecution case mainly rests on the evidence of P.W.5 and P.W.6, the father and brother of the deceased respectively, it would be apposite to discuss their evidence at the first instance. P.W.5, the father of the deceased, has stated that the deceased was allowed to go to her matrimonial home to celebrate Nuakhai festival and after two days, he himself came to the house of the appellant for the festival and one day prior to the said festival, while he was sleeping with the father of the appellant in one room and the deceased and the appellant were sleeping in another room, in the midnight, he suddenly heard the cry of the deceased “BAPA TORA JWAIN MOTE NIYAN LAGAIDELA DHAN DHAN”. Upon hearing this, he rushed into the room of the couple and found that the deceased was set ablaze and the JCRLA No. 37 of 2011 Page 14 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 15 ] appellant was not present in the room. He further stated that he himself as well as the father of the appellant managed to extinguish the fire by sprinkling water on the body of the deceased and then the deceased was shifted to the hospital by him as well as the family members of the appellant and while undergoing treatment in the hospital, the deceased died. Before dying, the deceased murmured “TO JWOIN MOTE PODIDELA AAU BANCHIBI KANHIKI”. P.W.5 has not been mentioned in the F.I.R. that he was present in the house of the appellant on the fateful night. It has been confronted to P.W.5 and proved through the I.O. (P.W.13) that he has not stated about the two dying declarations made by the deceased, first at the spot and the second in the hospital. P.W.2, who took the deceased to the hospital in his jeep, has stated that the deceased was accompanied by the appellant, his father and some of the family members and his evidence is totally silent that P.W.5 accompanied them to the hospital. P.W.6, the brother of the deceased has stated that on the fateful day of the occurrence, P.W.5 telephoned him from Sonepur and told that the deceased was set ablaze for which she had been shifted to the hospital and requested him to go there and when he proceeded to Sonepur hospital, he found that the deceased had already died. His JCRLA No. 37 of 2011 Page 15 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 16 ] evidence is totally silent that P.W.5 made any disclosure before him that the deceased made dying declaration at two places. In view of the materials available on record and material contradictions in the evidence of P.W.5, it is very difficult to place reliance on the dying declaration of the deceased which is stated to have been made first at the spot and the second in the hospital. P.W.5 has stated that ten to twelve days after the marriage, the deceased returned back to her paternal house and when she was asked as to why she came back, she disclosed that the appellant physically tortured her subjecting her to physical assault and she expressed her reluctance to return back to her husband and stayed in the paternal house. He further stated that in the month of Magha, the appellant along with his father and some other villagers and gentries had come to his house to take back the deceased to her matrimonial house, but he did not allow the deceased to return back with them. During Nuakhai festival in the month of Bhadraba, they again came to take the deceased to her matrimonial home and at that time, on the positive assurance of the gentries towards the safety of the deceased at her in-laws house, he allowed the deceased to go back with them to the house of the appellant. The deceased just stayed in her matrimonial home for ten to twelve days after the JCRLA No. 37 of 2011 Page 16 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 17 ] marriage and there is no material on record that the appellant subjected her to torture in connection with demand of dowry when she was taken few days prior to her death and if the dying declaration evidence is taken out of consideration for the reasons stated above, then there is no other clinching evidence on record that till her death, there was any kind of physical or mental torture to the deceased in connection with demand of dowry by the appellant. In order to attract the ingredients of offence under section 304-B of the I.P.C., the prosecution is required to prove the following aspects: (i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances; (ii) Such a death should have occurred within seven years of her marriage; (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband; (iv) Such cruelty or harassment should be for or in connection with demand of dowry; (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. JCRLA No. 37 of 2011 Page 17 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 18 ] It becomes obligatory on the Court to raise a presumption as to ‘dowry death’ under section 113-B of the Indian Evidence Act on proof of the following essentials: (i) The question before the Court must be whether the accused has committed the ‘dowry death’ of the woman; (ii) The woman was subjected to cruelty or harassment by her husband or his relatives; (iii) Such cruelty or harassment was for or in connection with any demand for dowry; (iv) Such cruelty or harassment was soon before her death. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". In this case, the evidence is lacking that the deceased was subjected to cruelty or harassment by the appellant soon before her death in connection with demand for dowry. It is not sufficient just to prove that harassment or cruelty was caused to the woman in connection with demand for dowry at some point of time. Such harassment or cruelty should happen soon before her death which refers to a period either immediately before her death or within a few days or even a few weeks before it. The proximity to her death is an important aspect. The legislative intention in JCRLA No. 37 of 2011 Page 18 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 19 ] providing such a radius of time by employing the words ‘soon before her death’ is to emphasise that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. There should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide, the Court would be in a position to gauge that in all probabilities, the death would not have been the immediate cause of harassment or cruelty on her. During investigation, it came to light that the date of marriage between the appellant and the deceased was 10.03.2008. The deceased returned back to her paternal place within ten to twelve days of marriage and complained dowry demand and torture against the appellant but thereafter there is no evidence that till her death on 23.08.2009, there was any harassment or cruelty on her by the appellant in connection with dowry demand. Therefore, I am of the humble view that the learned trial Court was not justified in convicting the appellant under section 304-B of the I.P.C. Accordingly, the appellant is acquitted of the charge under section 304-B of the I.P.C. JCRLA No. 37 of 2011 Page 19 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 20 ] Whether the appellant is liable U/S 4 of the D.P. Act for demanding dowry?: 9. Coming to the demand of dowry, P.W.5 has stated that during marriage of the deceased with the appellant, necessary household articles consisting of bell metal and silver utensils, one bicycle, wrist watch were given to the couple and during police investigation, he also submitted a list of articles before police which were seized and accordingly, seizure list was prepared. After the death of the deceased, the police recovered the articles from the house of the appellant and left the same in his zima. Even P.W.6, the brother of the deceased has also not stated that on account of demand of dowry, they gave any article to the appellant. Section 4 of the D.P. Act states that if any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punished for such offence. Since it appears to be a case of usual presentation, given from the side of the bride to the bridegroom at the time of marriage, the conviction of the appellant under section 4 of the D.P. Act is not sustainable in the eye of law. JCRLA No. 37 of 2011 Page 20 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 21 ] Conviction of appellant for commission of offence under section 498-A of I.P.C.: 10. Coming to the section 498-A of the I.P.C. deals with punishment of cruelty to a woman by her husband or the relative of her husband. ‘Cruelty’ has been defined in the Explanation to section 498-A of I.P.C. It lays emphasis on the degree of willful conduct of the accused. The cruelty can either be mental or physical. Unless there are materials that the accused deliberately caused such mental or physical agony to the woman that there was chance of losing mental equilibrium which was likely to drive her to commit suicide or to cause grave injury or danger to her life, limb or health, the ‘cruelty’ aspect will not be satisfied. It also covers any kind of harassment to the woman to coerce her or any person related to her to meet any unlawful demand. The Court has to weigh the gravity or seriousness of the act of the accused and its effect on the woman. No straight jacket formula can be there to decide what would be ‘cruelty’. The concept of cruelty would depend upon the facts and circumstances of each case and it would vary from individual to individual, the social and economic status of the parties, their temperament, the society in which the parties are living, the social background, the environment and education etc. Sometimes a single incident in JCRLA No. 37 of 2011 Page 21 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 22 ] the marital life may develop a feeling in the woman a sense of complete frustration that being alive or dead is equally meaningless to her. However, in some cases even daily petty domestic quarrels between the husband and wife will not attract the term ‘cruelty’. In the case in hand, the evidence adduced by P.W.6, the elder brother of the deceased is that ten to twelve days after the marriage when the deceased came back to their house, she informed that the appellant physically assaulted her for which she expressed her reluctance to return back to the appellant. This evidence of P.W.6 corroborates the evidence of P.W.5, who has stated that the deceased returned back to her paternal place ten to twelve days after the marriage and when he asked her as to why she had come back, she disclosed that the appellant tortured her and subjected her to physical assault and even she expressed her reluctance to return back to the matrimonial house. Nothing has been brought out in the cross-examination of these two witnesses to disbelieve such evidence. Even though P.W.5 has stated that no meeting was convened by his caste samaj over this issue and he had never alleged about such torture being meted out to the deceased before the father of the appellant, but the evidence of P.W.5 and P.W.6 are sufficient to JCRLA No. 37 of 2011 Page 22 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 23 ] attract the ingredients of the offence under section 498-A of the I.P.C. against the appellant. The defence has also not brought out any other reason on the part of the deceased for staying at her paternal place from ten to twelve days onwards and expressing her reluctance to go to her matrimonial home. Therefore, I am of the humble view that the learned trial Court has rightly found the appellant guilty under such offence. Conclusion: 11. In view of the foregoing discussions, the appellant is acquitted of the charge under section 304-B of the I.P.C. and section 4 of the D.P. Act, however his conviction under section 498-A of the I.P.C. and sentence imposed thereunder by the learned trial Court stands confirmed. It appears that the appellant was taken into judicial custody in connection with this case during the investigation on 31.08.2009 and he was never released on bail during pendency of the trial and after he preferred this jail criminal appeal, he was granted bail by this Court in Misc. Case No.8 of 2016 as per order dated 17.02.2017 and therefore, he has already undergone the sentence which has been imposed for the offence under JCRLA No. 37 of 2011 Page 23 of 24 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Feb-2024 14:11:05 [ 24 ] section 498-A of the I.P.C. He shall not be taken into custody further. Accordingly, the JCRLA is partly allowed. Lower Court Records with a copy of this judgment be sent down to the learned Trial Court forthwith for information and necessary action. Before parting with the case, I would like to put on record my appreciation to Ms. Chandana Mishra, the learned Amicus Curiae for rendering her valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs.7,500/-. This Court also appreciates Mr. Priyabrata Tripathy, learned Additional Standing Counsel for ably and meticulously presenting the case on behalf of the State. Orissa High Court, Cuttack The 24th January 2024/Sipun .………………………… S. K. Sahoo, J. JCRLA No. 37 of 2011 Page 24 of 24