The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.323 of 1998 (In the matter of an application under Section 374 (2) of the Criminal Procedure Code, 1973) Ganeswar Naik @ Babula & others ……. Appellants -Versus- State of Orissa ……. Respondent For the Appellants : Mr. D.P. Dhal, Senior Advocate For the Respondent : Mr. Ashok Kumar Apat, AGA CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 19.08.2025 : Date of Judgment: 09.09.2025 S.S. Mishra, J. Three appellants conjointly have filed the present Criminal Appeal under Section 374 (2) read with Section 382 of the Cr. P.C. challenging the judgment of conviction and order of sentence dated 07.12.1998 passed by the learned Sessions Judge, Balasore-Bhadrak, Balasore in S.T. Case No.67 of 1998. 2. Learned trial Court, by the impugned judgment found the appellant no.1 guilty of the offence punishable under Section 498-A IPC and on that count, sentenced him to undergo R.I. for six months and to pay fine of Rs.500/- (Rupees five hundred), in default of such payment, to undergo further R.I. of one month was awarded. Similarly, by the finding, the appellant nos.2 and 3 were found guilty of the offence under Section 4 of the D.P. Act, six months imprisonment and fine of Rs.500/- (Rupees five hundred), in default of such payment, to undergo R.I. for one month has been awarded against the appellant nos.2 & 3. 3.
Legal Reasoning
Heard Mr. D.P. Dhal, learned Senior Advocate appearing for the appellants and Mr. A.K. Apat, learned Additional Government Advocate appearing for the Respondent-State. 4. The prosecution alleged that at the time of marriage of the appellant no.1, they demanded Rs.40,000/- to be paid by the bride. P.W.6, the father of the bride had deposited Rs.36,000/- in the name of the deceased Fuklu in a Postal Savings Bank. However, the accused persons still demanded the remaining amount of Rs.4,000/- to be paid so also Rs.10,000/- extra was also demanded towards the marriage Page 2 of 9 expenses. P.W.6 gave them Rs.10,000/- as cost of the marriage and other articles. Despite fulfilling the demand amount of the accused persons by paying the amount, household articles and ornaments, the accused persons consistently tortured the deceased with further demand of cash. On the demand of the accused persons, the Postal Savings Bank kept in the name of the deceased was also transferred to the Post Office of the village of the appellant no.1 and was made him nominee. It is further alleged that on 05.07.1997, by manually strangulating Fuklu (the deceased) was killed and soon thereafter, her body was set on fire. Accordingly, she sustained some burn injuries. Eventually she died. 5. The investigation of the case resulted in filing of the charge sheet against all the appellants for the offences punishable under Sections 498- A/304-B/302/34 of the IPC. They were also stood charged for the said offences. The defence took the plea of complete denial. 6. To bring home the charges, the prosecution has examined ten witnesses. Further, the mother and sister of the deceased have been examined as P.Ws. 6, 7 and 8 respectively whereas P.W.9 was a friend of the deceased. The doctor, who conducted the post mortem, was Page 3 of 9 examined as P.W.5 and the Pharmacist was examined as P.W.4. P.Ws. 2 and 3 were the neighbours of the appellant no.1 and the independent witness. P.W.10 was the Investigating Officer of the case. 7. The learned trial Court, after evaluating the evidence on record, arrived at the conclusion that the prosecution has miserably failed to establish that the death of Fuklu was a homicidal one and was caused by the accused persons. Hence, all the appellants were acquitted of the charges punishable under Sections 302/304-B/34 of the IPC. The concluding part of the finding in paragraph-16 of the impugned judgment being relevant is reproduced as under: “16. Such being the statements of ocular witnesses, the expert opinion that the burn injuries were post mortem injuries is not acceptable. Breakage of thyroid cartilage can as well be caused due to reasons other than manual strangulation as opined by P.W.5. Such being the medical opinion and version of ocular witnesses and in the absence of any other evidence whatsoever, it is to be held that the prosecution has failed to establish that death of Bandita was due to any manual strangulation. So the prosecution has failed to establish that death was a homicidal one, much less it was caused by any of the accused persons. Hence, the prosecution has failed to bring home the charge against the accused persons under section 302 of the Indian Penal Code.” Page 4 of 9 8. Learned trial Court, by relying upon the evidence of P.Ws. 6, 7 and 8, came to the conclusion that the prosecution could establish the demand of dowry and the torture meted out to the deceased by the appellant no.1. Learned trial Court, inter alia, returned the following findings in paragraphs-17, 18 and 21, which read thus: “17. As regards the charge under section 498-A IPC and Section 4 of the Act, the statements of witnesses P.Ws. 6, 7 and 8 are of importance. They make consistent and emphatic statements that at the time of marriage there was demand for payment of Rs.40,000/-, whereas the bride side gave a savings bank pass book containing deposit of Rs.36,000/- and other household articles. P.W.6 makes an emphatic and unassailed statement that accused Kartika and Biswanath made demand of Rs.40,000/-. He further states that after the marriage was finalized, the aforesaid two accused persons (Kartika and Biswanath) again demanded Rs.10,000/- towards marriage expenses of the bride- groom party who attended the marriage. It is evident from the statement of this witness that 6 months after the marriage, when Bandita came to their house, she told that the accused persons wanted that the deposit of Rs.36,000/- should be withdrawn. To achieve that end, she was given physical torture and harassment. P.W.6 further states that Bandita had told them that accused Ganeswar had assaulted her giving physical torture and that accused Kuna alias Kartika had left house without taking food for which she was disturbed. P.Ws. 7 and 8 corroborates the said facts. They further state that Bandita had told them that in demand of payment of Page 5 of 9 Rs.4,000/- out of the demanded Rs.40,000/- she was tortured and illtreated by the accused persons. 18. Barring some minor contradictions here and there, nothing is brought to record to assail the statements of P.Ws. 6, 7 and 8. Hence it is evident from their statements that accused Kartika and Biswanath had demanded Rs.40,000/- in cash in connection with the marriage. The fact that the pass book containing deposit of Rs.36,000/- was given, remains uncontroverted. It is evident from the statements of P.W.6 and P.W.10 that the articles given in connection with the marriage have been seized from the house of accused Ganeswar and given in the zima of P.W.6 vide Ext.6. The Apex Court in the case of Wazir Chand-vrs.- State of Haryana: AIR 1989 Supreme Court 378 have observed that the fact of taking back of large number of articles after the death of the bride is one of the circumstances to hold that dowry articles were given to the bride. ***** ***** ***** 21. Hence the prosecution has well established that accused Kartika and Biswanath had demanded case to be given by P.W.6, the father of the deceased bride in connection with the marriage. However, the evidence against accused Ganeswar on this section is meagre. Admittedly, accused Kartika and Biswanath are co- brothers-in-law. The evidence of P.W.1 is that both of them had demanded payment of such cash in connection with the marriage, so also demanded expenses of bride- groom party. This establishes that they had a pre- meeting of mind to demand cash from P.W.6 in connection with the marriage of the deceased with accused Ganeswar. Hence accused Kartika and Page 6 of 9 Biswanath are liable to be held guilty under section 4 of the Act read with 34 of the Indian Penal Code.” Learned counsels appearing for both the parties have taken me to 9. the prosecution evidence in detail. 10. I have gone through the evidence brought on record by the prosecution and also taken into consideration the defence plea. The acquittal recorded by the learned trial Court in favour of the appellants in so far as the offences punishable under Sections 304-B/302 of the IPC being not questioned by the State, I need not venture into appreciating the evidence in that light. 11. Mr. Dhal, learned Senior Advocate for the appellants, at the outset, has submitted that he would confine his argument only to the quantum of sentence. He submitted that the appellant no.1 is about 51 years of age as of today whereas appellant nos.2 and 3 are 67 and 65 years respectively. The appellants surrendered before the Court on 04.11.1997. They were admitted to bail on 21.03.1998. However, they were released from the custody on 23.03.1998. Therefore, all the appellants have undergone the custody for a period of four months twenty-one days each, hence, Mr. Dhal submitted that the substantial Page 7 of 9 part of the total sentence of six months R.I. has already been undergone by the appellants. Therefore, while maintaining the conviction, the appellants may be treated leniently while sentencing them. The learned counsel for the State has fairly agreed to the submission of Mr. Dhal, learned Senior Advocate, in view of long pendency of the present Criminal Appeal. 12. In view of the submissions made by learned counsels for both the parties, I feel it appropriate not to advert to the merits of the case, rather affirm the judgment of conviction recorded by the learned trial Court against all the appellants. However, the sentence awarded by the learned trial Court needs to be varied in view of the long pendency of the case. The present case relates back to the incident happened in the year 1996. The appellants were convicted vide judgment dated 07.12.1998. The present Criminal Appeal is pending since 14.12.1998. Much change has taken place in between. The appellants have already suffered the ordeal of the proceeding for about three decades. They have already been well established in the society and leading their respective life. Therefore, the Page 8 of 9 prayer made by Mr. Dhal, learned Senior Advocate for the appellants deserves merit. 13. Accordingly, the sentence awarded by the learned trial Court stands modified to the extent that the six months R.I. is converted to the period the appellants have already undergone in the custody. However, the fine of Rs.500/- imposed on each of the appellants is enhanced to Rs.5,000/- (Rupees five thousand) each, in default of making payment, the appellants are liable to undergo R.I. for fifteen days each. The amount of fine to be deposited by the appellants shall be disbursed to P.W.6, the father of the deceased in accordance with Section 357 of the Cr. P.C.
Decision
14. The Criminal Appeal stands partly allowed and disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 9th Day of September, 2025/ Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 10-Sep-2025 19:19:09 Page 9 of 9