The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 455 of 2008 & CRLA No. 417 of 2008 (Appeals under Section 374(2) of the Code of Criminal Procedure, 1973. CRLA No. 455 of 2008 --------------- AFR Bimal Kumar Khetan @ Bicky ...… Appellant -Versus- State of Orissa ...... Respondent CRLA No. 417 of 2008 Smt. Kantadevi Khetan & Others ...… Appellants -Versus- State of Orissa ...... Respondent Advocate(s) appeared in this case: _______________________________________________________ : Mr. Bishnu Prasad Pradhan, For Appellants Advocate For Respondents : Mr. Janmejaya Katikia, Addl. Government Advocate Mr. S.P. Mishra, Senior Advocate With Mr. S.K. Zafarulla, Advocate [ for informant] _______________________________________________________ CORAM: THE CHIEF JUSTICE JUSTICE SASHIKANTA MISHRA Page 1 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 JUDGMENT 29th September, 2023 SASHIKANTA MISHRA, J. Both these appeals are directed against the judgment dated 11.09.2008 passed by the learned Additional Sessions Judge, Jharsuguda in S.T. Case No. 24 of 2006, and being heard analogously, are being disposed of by this common judgment. 2. The appellants in CRLA No. 417 of 2008 being convicted of the offence under Sections 498-A IPC and Section 4 of the D.P. Act were sentenced to undergo R.I. for three years each and to pay a fine of Rs.5,000/- each, in default, to undergo further R.I. for six months under Section 498-A IPC with no separate sentence being imposed for the offence under Section 4 of D.P. Act. Be it noted that the appellant No. 1, Kailashnath Khetan having expired during pendency of the appeal, the case against him stands abated. 3. The appellant in CRLA No. 455 of 2008, being convicted for the offence under Sections 302/304-B/498- A IPC and Section 4 of D.P. Act was sentenced to undergo Page 2 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 imprisonment for life and to pay fine of Rs.5,000/-, in default, to undergo further R.I. for one year for the offence under Section 302 IPC with no separate sentence being imposed for the other offences. 4. The prosecution case is as follows: One Gajanand Agrawalla (hereinafter referred to as the informant) submitted a written report before the Office-in-Charge of Jharsuguda Police Station on 01.10.2005 stating therein that his daughter, Manisha Muskan Khetan (hereinafter referred to as the deceased) was given in marriage to Bimal @ Bicky Khetan, son of Kailashnath Khetan of Jharsuguda on 09.05.2005 as per rites and customs of their caste and in the presence of their family members and elders. At the time of marriage, the informant gifted a full set of gold ornaments, two half sets, 25 pairs of gold ear rings, a gold chain, two rings and wrist watch for the bridegroom and garments for the bride and bridegroom. Besides, he paid cash of Rs.2 lakhs for purchasing household articles. The newly married couple started residing in the matrimonial home of the deceased Signature Not Verified at Jharsuguda along with other members of the family, Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 3 of 62 namely, parents-in-law, elder brother-in-law and elder sister-in-law. After three to four days, the husband of the deceased and his aforementioned family members expressed their discontent over the gifts given at the time of marriage and demanded further dowry in the form of diamond set, gold and cash of Rs.2 lakhs from the deceased. They subjected her to severe physical and mental torture on such count. The deceased informed her mother over telephone of the above fact several times, hearing which, the informant and his wife went to the matrimonial house of the deceased and tried to convince her in-laws but they remained adamant. Subsequently, the in-laws of the deceased threatened to kill her if their demand was not met. Hoping for a change of heart, the informant consoled his daughter and advised her to tolerate such behavior. The deceased followed her father‟s advice. Unfortunately on 01.10.2005, at about 6 a.m. the elder father of the accused Bimal, namely Shankarlal Khetan, informed the informant over phone that the deceased had died. Hearing such news, the informant and Signature Not Verified his family members were shocked and realized that it was Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 4 of 62 a pre-planned dowry related murder. They arrived at Jharsuguda along with their relatives and found the deceased lying dead in her bed room and her husband, elder brother-in-law and elder sister-in-law had absconded from the house. On their query as to the cause of death the parents-in-law of the deceased remained silent. Thus, suspecting that the in-laws of the deceased had killed her by subjecting her to physical and mental torture for dowry, the informant submitted a written report at the Police Station. This led to registration of Jharsuguda P.S. Case No. 413(2) dated 01.10.2005 under Sections 498-A/304-B/34 IPC and Section 4 of D.P. Act.
Facts
Be it noted that prior to lodging of the FIR, a written report was submitted by accused, Bimal Khetan in the Police Station on the same day at about 9.30 a.m., basing on which U.D. Case No. 28 of 2005 was registered. In course of enquiry of the said case, the I.O. visited the spot, conducted inquest over the dead body, sent it for post-mortem examination and seized certain articles. After lodging of the FIR, Police searched for the accused Signature Not Verified persons and apprehended accused Bimal on 03.10.2005. Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 5 of 62 Several other steps were taken in course of investigation including examination of witnesses by the I.O.. Ultimately, charge sheet was submitted against the husband, father- in-law, mother-in-law, elder brother-in-law and elder sister-in-law of the deceased. Basing on the materials on record, learned Addl. Sessions Judge framed charge under Sections 498-A/304-B/302/406 of IPC and Section 4 of D.P. Act against the husband, accused Bimal and under Section 498/34 of IPC, 304-B/34 IPC, 406/34 IPC and Section 4 of the D.P. Act against the other accused persons. 5. All the accused persons took the plea of denial. Additionally, it was the specific plea of accused Bimal that on the date of occurrence, at about 5.30 a.m. when he woke up, he found the deceased lying unconscious for which Dr. A.K. Dash was called, who declared the deceased dead and advised them to report the matter to Police. Accordingly, the matter was reported. Police did not notice any stain on the bed sheet, pillow cover and vomiting substance and further that they had Page 6 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 neither demanded dowry before the marriage nor after it nor had tortured the deceased on such count. 6. To prove its case, prosecution examined 21 witnesses and exhibited 9 documents. Defence did not adduce any evidence but exhibited 13 documents. Out of the prosecution witnesses, P.W.-6 is the informant, P.W.-1 is an inquest witness, P.Ws.2, 3 & 4 are seizure witnesses, P.W.-5 is Dr. A.K. Dash, who had declared the deceased dead and had jointly conducted autopsy with Dr. Salwanti Jojo, P.W.-7 is the mother of the deceased, P.W.-8 is the younger brother of the deceased, P.W.-9 is the elder sister of the deceased, P.W.-10 and 11 are cousin brothers of the informant, P.W.-12 is the scribe of the FIR, P.W. 13 is a neighbor of the accused persons, P.Ws.-15, 16 & 17 are post occurrence witnesses, who arrived at the spot on seeing a gathering of persons outside the house of the accused persons, P.W.-18 is the maid servant of the accused persons, P.W.-19 is Dr. Salwanti Jojo, who conducted post mortem examination with P.W.-5, P.W.-20 is the uncle of the deceased and brother-in-law of the Signature Not Verified informant and P.W.-21 is the I.O. Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 7 of 62 7. On the evidence so laid, learned Addl. Sessions Judge first took note of the ingredients necessary to prove the charge under Section 304-B IPC and held that to sustain the same, the prosecution was required to prove the following: A) Whether accused Bimal and other co-accused persons in furtherance of their common intention committed murder of Manisha Muskan on 1.10.2005? (B) Whether accused Bimal Khenta and other Co- accused persons, in furtherance, of their common intention, being the husband and relatives (in- law) of Muskan Agrawala @ Khetan subjected her to cruelty with a view to force her to commit suicide or to fulfil the illegal demand of dowry? (c) Whether the accused persons in furtherance of their common intention, being entrusted with watch, cash of rupees Two Lakh coverted the same to their own use? (D) Whether the accused persons, in furtherance of their common intention, demanded additional dowry of diamond set, gold ornaments and rupees Two Lakh ?” 8. On appreciation of the oral and documentary evidence on record and the position of law, learned Addl. Sessions Judge was of the view that the accused persons had not offered any cogent and satisfactory explanation for the mysterious death of the deceased at the time of their examination under Section 313 of Cr.P.C., rather went to the extent of covering the suspicious Page 8 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 circumstances of their conduct before and after the occurrence by setting up false pleas. On such basis it was held that the death of the deceased was otherwise than under normal circumstances and held that it is a case of unnatural death. Holding so, learned Addl. Sessions Judge proceeded to ascertain whether the next ingredient, i.e. proof of the deceased having been subjected to cruelty and harassment by her husband and in-laws in connection with demand for dowry soon before her death was made out from the evidence. In this respect, learned Addl. Sessions Judge mainly relied upon the evidence of the informant, P.W.-6 as corroborated by his wife P.W.-7 and his son P.W.-8 to hold that the deceased was subjected to demand for further dowry by the accused persons. The version of the elder sister of the deceased, P.W-9 was also relied upon in this regard. Analyzing such evidence in the background of the rival contentions advanced by the prosecution and defence and the settled position of law, it was held that the deceased was subjected to cruelty and harassment by the accused Signature Not Verified persons soon before her death in connection with demand Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 9 of 62 for dowry. Learned Addl. Sessions Judge then took note of the circumstances emerging from the evidence. As regards the cause of death, learned Addl. Sessions Judge noted the lack of specific evidence in this regard of both the doctors to hold that the possibility that the deceased might have been poisoned by her husband could not be ruled out. Thus, it was held that all the circumstances were available without any missing link and presented a complete chain showing only the guilt of the accused persons. On such findings, the accused persons were convicted and sentenced as already mentioned herein before. 9.
Legal Reasoning
have formed a prima facie opinion and stated so before the Police at the earliest instance and also mentioned in the postmortem report as such. In fact, it is a matter of common knowledge and experience that a preliminary opinion regarding cause of death is usually given by the autopsy surgeon pending chemical examination of the viscera, which is done in almost all cases of death. Nothing has been placed before us to show that the doctor Page 28 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 cannot give an opinion before chemical examination report is received. 15. It has been argued by the learned State Counsel that the deceased was a young woman aged about 22 years and without any bodily ailment including anything relating to the heart. In this regard it is apt to note that P.W.-5 was declared hostile by the prosecution and was also re-examined in chief subsequently, in course of which, he stated that at the time of postmortem he did not find any disease in the heart of the deceased. On being asked to cite a single instance that a lady of sound health of the age of 22 years had died of cardiac arrest in India, he stated that he had come across few such cases but could not give any particulars of those cases. The significant thing to be noticed is, if according to him, the deceased had died due to cardiac arrest, what prevented him from saying so earlier and even during his examination-in-chief. The very conduct of P.W.-5 makes his entire evidence tinged with suspicion as to its truthfulness and therefore, renders the same unreliable. Page 29 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 16. Coming to the evidence of other autopsy surgeon P.W.-19, it is seen that she also stated the same thing as P.W.-5. She does not positively state that cause of death was due to cardiac arrest during her examination- in-chief but suggested during cross-examination that „the probable cause of death is sudden cardiac arrest‟. She was re-examined by the prosecution and specifically admitted that she had never come across a person of young age dying due to cardiac arrest. In cross- examination, she admits that she has no experience of treating cardiac patient. She further goes on to state that death of the deceased is neither homicidal nor suicidal nor accidental but was natural being due to cardiac arrest. After going through the entire evidence of P.W.-19 we find it difficult to accept more or less for the same reasons as cited in the case of P.W.-5. To reiterate, it is for the doctor to come forward with a definite opinion as regards cause of death but in the instant case, both P.W.-5 and P.W.-19 did not do so and made an attempt to introduce the theory of cardiac arrest for the first time before the Court Signature Not Verified two years after the occurrence. This Court is unable to Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 30 of 62 accept the explanation that they had reserved their opinion at the time of postmortem examination only because the viscera had been sent for chemical examination rather it can be reasonably inferred that they had deliberately refrained from doing so for reasons best known to them. It is otherwise borne out from the evidence on record that the I.O., for reasons best known to him did not produce the chemical examination report before the autopsy surgeons after receiving the same but then, even otherwise on the face of such clear opinion being given by both of them during cross-examination that the cause of death was cardiac arrest, there was no reason for them to have not said so at the relevant time on the ruse of non-receipt of chemical examination report. We therefore, feel persuaded to discard the evidence of both P.Ws. 5 and 19 as being entirely unreliable and untrustworthy. 17. It has been argued that as regards the cause of death, the doctor is the most competent witness as held by the apex Court in the case of Mafabhai Nagarbhai Raval v. State of Gujarat, (1992) 4 SCC 69. Therefore, Page 31 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 according to learned counsel for the appellants the Court should not substitute its own opinion for that of the doctor. We are not impressed with this argument because in the very same decision, it has also been held that Court cannot substitute its opinion for that of the doctor „unless there is something inherently defective in it‟. From what we have discussed above, it is more than evident that the evidence of both the doctors is not only inherently defective but not worthy of credence even to the least. Faced with such a situation, the Court cannot stand back as a helpless spectator, rather this is a case where the Court has to look at other evidence including the attendant circumstances to arrive at a definite finding. 18. Coming to the cause of death, Mr. Pradhan, learned counsel for the appellants as well as Mr. Katikia, learned State Counsel have both relied upon different text books on medical jurisprudence to buttress their respective contentions. Mr. Pradhan has relied upon the book titled, “Harrison‟s Principles of Internal Medicine” and in particular, to the chapter on “Cardiovascular Collapse, Cardiac Arrest, and Sudden Cardiac Death”. On Page 32 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 such basis, he would urge the Court to believe that sudden cardiac death is possible even in case of a young woman as the deceased without there being any pre- history of cardiac disease. Mr. Katikia, on the other hand has referred to “Modi- A Textbook of Medical Jurisprudence and Toxicology” to urge that the external and internal appearance of the dead body of the deceased clearly shows that the death was due to asphyxia, which in turn may have been caused by smothering with a soft pillow or cloth. 19. While lauding the gallant attempts made by both counsel in this regard, we however, deem it proper to refrain from entering into this area which, undoubtedly, is uncharted territory for persons without formal training in medical science. Whether the underlying bodily conditions suggest cardiac arrest or asphyxia as being the probable causes of death are, to us, immaterial. We would rather, look at the evidence to determine whether the same can be brought within the mischief of the expression „otherwise than under normal circumstances‟. In this respect, the entire evidence of the attending Page 33 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 circumstances has to be analyzed objectively. As already stated, the deceased was found dead in her bed room. Accused Bimal (her husband) was the last person seen with her and also the first person to be with her in the morning. Therefore, he is the best person to explain as to what had transpired at the relevant time. In his examination under Section 313 Cr.P.C. he says that on that day he woke up at 5 a.m. and attempted to rouse the deceased from her sleep but found her unconscious. He called the other members of the family and then the doctor, who declared her dead. Significantly, the accused does not say that the deceased was dead, but according to him, she was unconscious. This is a positive statement. This implies the deceased was alive though not conscious. Obviously, despite being unconscious her body would have exhibited other signs of life like, breathing and beating of heart etc. If this is accepted, then it can be inferred that she must have died sometime later and before arrival of the doctor because he pronounced her dead upon his arrival. Therefore, what had transpired in Signature Not Verified the interregnum was definitely within the special Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 34 of 62 knowledge of the accused persons. None of them has stated anything in this regard, which makes their conduct even more suspicious. We further find that there is no evidence whatsoever of the deceased having any kind of history of illness in any manner much less, any cardiac ailment. She was a young, hale and hearty woman with sound health who, under ordinary circumstances, was not expected to die suddenly. True, medical science does not rule out sudden death as occurring in even healthy individuals but then, in the present case given the suspicious circumstances and the conduct of the accused persons, more of which will be stated later, we find it extremely difficult to believe that her death was due to natural causes, whatever it might be. In fact, we are persuaded to say so because notwithstanding absence of any external injury, the presence of blood and froth from the mouth and nostrils as well as some vomitous substance from the spot are too significant to be ignored. 20. Another important aspect needs to be emphasized here is, it is not always possible to pinpoint the exact cause of death from the evidence on record. It is Page 35 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 not for the Court to ascertain with unerring precision as to the cause of death as a rule in all cases of murder/dowry death. It would suffice for the purpose of the case if it can be shown that some kind of foul play was involved. In this regard, as already discussed, the conduct of the accused persons assumes great significance. We take note of the fact that the accused Bimal (husband) could not give a satisfactory explanation as to what had transpired at the relevant time. Secondly, if according to the attending doctor (P.W.-5), there was no incriminating/suspicious material, what prompted accused Bimal to report the matter at Police Station. Thirdly, having done so, what prompted him to abscond for two days (he was arrested on 03.10.2005). Again, what prompted the other accused persons to abscond for a long time? The question is, if the death was natural what were the accused persons afraid of. This conduct adds to the suspicion and lends more support to the theory that the death was unnatural. There is nothing to suggest that such death was accidental or suicidal. The only other Signature Not Verified cause that remains is therefore, homicidal. It has been Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 36 of 62 forcefully argued by Mr. Pradhan that in the absence of any external injury or marks of violence on the body of the deceased, homicidal death has to be ruled out. We do not think so for the reason that it cannot be said as an inviolable doctrine that in all cases of homicidal death there has to be external manifestation of signs of violence. In this regard we cannot refrain from taking note of the evidence that dried blood and froth was found from the mouth and nostrils of the deceased during inquest as well as postmortem examination and of the vomitous substance found from the spot. Both the doctors (P.Ws. 5 and 19) have explained the same by stating that after some hours of death blood and other fluids comes out from the dead body through different outlets including nose and mouth but neither of them has stated that the same is to be found in all cases of death including natural death. P.W.-5 further states that vomiting also occurs in case of hyperacidity and gastro disorder and other cases, which is inconsistent with his own statement that death was due to cardiac arrest. If such was the case, how to Signature Not Verified explain the vomiting? For this limited purpose only, we Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 37 of 62 may refer to Modi‟s (supra), wherein it is laid down that no local signs of violence will be found, if a soft cloth or pillow has been used to block the mouth and nostrils and further that one of the appearances of the dead body in case of death due to asphyxia is that bloody froth comes out from the mouth and nostrils. Thus, as between the explanation offered by both the doctors and the possibility indicated in Modi‟s, the latter appears more probable and hence, it can be reasonably inferred that the presence of blood and froth from the mouth and nostrils of the deceased as also of vomitous substance at the spot certainly indicates that death was unnatural. Furthermore, none of the doctors has stated with certainty that in all cases of sudden cardiac arrest blood and froth would definitely come out from mouth and nostrils of the deceased or there would be vomiting. Therefore, the cause of death remains shrouded with mystery. We may hasten to add that we do not intend, at least on the above basis to definitely conclude at this stage that accused Bimal had caused the death of the Signature Not Verified deceased by committing some overt act. For this, we need Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 38 of 62 to analyze other evidence as to the circumstances leading to the occurrence, for this is not just a case where the deceased was residing happily in her matrimonial home and for some reason, she died in her sleep one fine morning, rather there are other materials to show that she was not pulling on well with her husband and in-laws. 21. It was alleged by the informant in the FIR that 3 to 4 days after the marriage, accused Bimal and the other accused persons started physically and mentally torturing the deceased by demanding further dowry of one Diamond set, gold and cash of Rs. 2 lakhs. The FIR contains similar allegations. The informant being examined as P.W.-6 reiterated his FIR version though his statement that the accused persons had demanded dowry prior to the marriage was found to be an improvement. He stated as follows; father-in-law further dowry “2. Four days after the marriage, the deceased (accused Kailash) and her from me over demanded telephone. At that time, they demanded further dowry one diamond set, further two Lakh cash, and 50 tolas of gold. Repeatedly, we are getting such phone calls. The deceased also complained before me her apprehensions of torture upon her by her in-laws and husband on non-fulfillment of further demand of dowry while she was visiting us at Titilagarh. I consoled my daughter that Page 39 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 time will heal-up everything and I am trying my level best to fulfill their demand in due course. the house telephone 3. On dated 02.10.2005 at the morning I got of from further neighbrourers of the house of the in-laws of the deceased that the deceased is dead. Shankar Lal Khetan informed me about the death. Thereafter, I along with my relatives came to Jharsuguda. I reached at Jharsuguda at 4.00 P.M. on the date of occurrence. Going to the in- laws house of the deceased, I found she was lying dead in the bed room of accused-Bimal Khetan. We suspected that it is a case of dowry death. At that time, I did not find anybody in the house of in-laws of the deceased except her father-in-law, who also left the house few minutes to Jharsuguda P.S. and lodged the F.I.R. when at about 5.30 P.M. I went to P.S. to lodge the F.I.R., Police did not receive the F.I.R. saying to wait till cremation of the dead body. Thereafter, Police received the F.I.R at 11.30 P.M. in the night on the date of occurrence after the funeral. Ext. 5 is the said F.I.R. and Ext.5/1 is my signature.” thereafter. Thereafter, I went 22. The FIR as well as the Section 161 Cr.P.C. statement of P.W.-6 was confronted to the I.O. (P.W.-21), who admitted that P.W.-6 had not stated about any demand of dowry by the accused persons prior to the marriage. P.W.-1 also stated that the other statements of P.W.-6 regarding demand by accused persons of dowry and of subjecting the deceased to torture for such reason and of her apprehension due to non-fulfillment of the same are absent in his Section 161 Cr.P.C. Statement. In order to satisfy ourselves as to the veracity of the Page 40 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 statement of the I.O. we perused the statement of the informant recorded under Section 161 of Cr.P.C.. It is seen that he had not stated anything about demand of dowry by the accused persons prior to the marriage. But in so far as all other statements made by him in his examination-in-chief are concerned, the same have been clearly mentioned in his statement. Thus, the statement made by the I.O. to the contrary in cross-examination is false. Moreover, the death of the deceased is said to have occurred between 5.30 to 6.30 a.m. as per the version of P.W.-5. The matter was reported at the Police Station by accused Bimal at about 7.30 -8.00 a.m. Police arrived at the spot at about 11 a.m.. Inquest was held over the dead body on the same day at 4 p.m. as evident from the inquest report marked Ext.1. By such time, the FIR had not been lodged. In fact, the FIR was lodged at about 11 p.m.. Thus, the opinion given by the informant during inquest as mentioned in the relevant column of the inquest report that the accused persons had caused death of the deceased for non-fulfillment of their demand for Signature Not Verified dowry appears to be his earliest version. Same, as already Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 41 of 62 stated, is fully consistent with his subsequent statement recorded under Section 161 of Cr.P.C. 22.1. P.W.-7 is the wife of the informant. She also stated about the occurrence entirely in line with P.W.-6. According to the I.O., (P.W.-21) she had not stated about any demand prior to the marriage and also thereafter as per the details deposed by her but on perusal of her statement recorded under Section 161 Cr.P.C. available in the case diary attached to the LCR we find that she had stated all these things that she had deposed before the Court. 22.2 Similarly, P.W.-8 is the younger brother of the deceased. His specific evidence is that he had come to Jharsuguda on 16.05.2005 and took the deceased to Titlagarh with him. While at Jharsuguda he was not shown hospitality by the family members of the accused persons. On the way to Titlagarh, the deceased told him about the torture upon her which she could not say earlier due to obstruction in her in-laws house. She told him that the accused persons were demanding further Page 42 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 dowry of diamond set, 50 tolas of gold and cash of Rs.2 lakhs saying that unless she brought the same, she should not return to Jharsuguda. P.W.-8 discussed with his father. Nothing was suggested to the I.O. by the defence that P.W.-8 had not stated so before him earlier. In fact, on perusal of the statement recorded under Section 161 of Cr.P.C. we have found that he had stated all those things before the I.O. as deposed by him in the Court. 22.3. P.W.-9 is the elder sister of the deceased. She deposed for the first time that the deceased talked with her over phone (four days after the marriage) and told her that the accused persons had been torturing her and demanding dowry and that she advised her that their parents would fulfill their demand in time. The deceased also used to telephone her with the same allegation at every one or two days interval till her death and her last phone call was on 29th September, 2005. On being confronted, the I.O. (P.W.-21) stated that P.W.-9 had not stated so before him but admitted that she had stated that the husband of the deceased had physically and mentally tortured her and they had no marital Page 43 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 relationship and further that the deceased complained over phone that the accused persons were torturing her on demand of dowry. The I.O. also stated that P.W.-9 had not stated about the last phone call of the deceased on 29.09.2005. From the Section 161 Cr.P.C. statement of P.W.-9 we find that her statement before the I.O. was that she had visited her mother‟s house at Titilagarh on 29.09.2005 and on 30.09.2005 at about 12 to 1 p.m. she had telephonic talk with the deceased. 22.4. P.W.-20 is the brother-in-law of the informant who stated that 20 to 25 days after the marriage of the deceased he had talked with the accused Bimal over phone and asked him to give the phone to the deceased. While talking with deceased, she was crying. Thereafter, P.W.-20 talked with the mother of the deceased over phone, who was also crying. She told him that the accused persons were giving mental and physical torture to the deceased demanding more money. Again when he talked to the mother of the deceased over phone, she informed that the accused persons were demanding 2 lakhs, 15 tolas of gold one diamond set and were torturing Page 44 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 the deceased. According to the I.O., the only contradiction in the statement of P.W.-20 is that he had not stated before him that 20 to 25 days after the marriage he had talked with the accused Bimal over phone and he was not satisfied and told him to give the phone to the deceased. Surprisingly, after having said so, P.W.-1 volunteered to admit that P.W.-20 had in fact stated so before him. Perusal of the statement of P.W.-21 recorded under Section 161 Cr.P.C. also shows that there is no contradiction in his statement before the Police. Thus, it is seen that testimonies of P.W.-6, 7, 8 & 20 are clear and consistent to the effect that there was demand for dowry by the accused persons and that the deceased was subjected to physical and mental torture for non- fulfillment of the same. We further find that all these witnesses have been subjected to extensive cross- examination, which we have gone through meticulously. We do not find anything therein to even remotely cause a doubt to crop up as regards the veracity of their testimonies. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 45 of 62 22.5. We are not impressed with the argument made by Mr. Pradhan that being the close relations and family members of the deceased their version needs to be corroborated by independent witnesses. Mr. Pradhan, learned counsel for the appellants has referred to the evidence of P.Ws. 1, 3, 15, 16 and 18 all of whom have stated that there was no demand of dowry or torture and that the in-laws of the deceased were treating her as their daughter. Firstly, demand for dowry and the physical and mental torture of the deceased is a purely domestic issue that need not always be to the knowledge of outsiders. None of the aforementioned witnesses, being outsiders can be expected to be privy to the happenings in the family of the accused persons. It is possible that they may not have had any direct or indirect knowledge about the incident but, that by itself cannot be treated as conclusive proof that the alleged incidents had not occurred. As regards the evidence of the so called interested witnesses namely, the close relations of the deceased, law is well settled that being related does not make them interested as they Signature Not Verified cannot be expected to derive any benefit by falsely Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 46 of 62 implicating the accused persons more so, if according to the accused persons, the deceased had met with a natural death. Therefore, it is not a matter of rule that their versions should receive corroboration from other sources. Reference may be had in this regard to the case of Laltu Ghosh vs. State of W.B., reported in (2019) 15 SCC 344. Having regard to what has been discussed earlier regarding the evidence of P.Ws.6, 7, 8 and 20, we find no reason to brush aside the same only for want of corroboration by independent witnesses. 23. Thus, from the discussion made in the preceding paragraphs we find that it is clearly borne out from the evidence on record that there was demand for further dowry in the form of diamond set, 50 tolas gold and cash of Rs. 2 lakhs by the accused persons. It is also borne out from the evidence that the deceased was subjected to physical and mental cruelty, which she expressed before her parents, elder sister, younger brother and uncle on some occasions. The death of the deceased occurred after only four months and 21 days of her Page 47 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 marriage. As already discussed, the evidence of P.W.-9 that she had complained of her ill-treatment by her husband and in-laws two days (or one day as the case may be) before her death is of great significance and clearly brings the case within the ambit of the expression „soon before her death‟ occurring in Section 304-B. We hold accordingly. 24. This takes us to the most important question as to if the death of the deceased, which we have already held to have occurred otherwise than under normal circumstances, was in any manner caused by the accused persons. After analyzing the evidence on record we find that the necessary ingredients of the offence punishable under Section 302 IPC, which we have discussed earlier, are not present inasmuch as in the absence of any specific overt act being attributed to accused Bimal or for that matter any of the other accused persons it cannot be definitely held that they had committed the murder of the deceased. To such extent therefore, we are unable to agree with the findings of the trial Court. But then even if prosecution is held to have failed in proving the offence of Page 48 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 murder the evidence on record can still be considered to see whether the offence of dowry death is made out because the offence under Section 304-B IPC is a special provision which takes within its sweep all kinds of death occurring otherwise than under normal circumstances in contradistinction to the offence under Section 300 IPC, where the exact or specific cause of death may be required to be proved. Moreover, a presumption of law exists in the form of Section 113-B of the Indian Evidence Act which is available to prove the offence of dowry death, but no such presumption is available in case of murder. In the present case, we would scan the evidence to see how far the presumption under Section 113-B of the Indian Evidence Act, which we have quoted earlier can be invoked. It is trite law that in order to raise the presumption under Section 113-B, the initial burden has to be discharged by the prosecution in that it must be shown that the victim was subjected to cruelty or harassment by the accused for or in connection with any demand for dowry soon before her death. In fact on proof of such essentials mentioned Signature Not Verified above, it becomes obligatory for the Court to raise a Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 49 of 62 presumption that the accused caused the dowry death. Reference in this regard may be had to the case of Raman vs. State, 2009 CrLJ 3034 (SC). 24.1. In view of what has been discussed in detail hereinbefore, we are of the considered view that the prosecution has been able to successfully discharge its initial burden and therefore, the burden shifts to the accused. We are inclined to hold so because in this case, the following ingredients stands established from the evidence on record namely (i) death of the deceased had occurred otherwise than under normal circumstances; (ii) within seven years of marriage (4 months 21 days to be exact); (iii) soon before her death she had been subjected to cruelty or harassment by her husband or his relatives. 25. We now turn our attention to the defence of the accused. For this, we would first refer to the principle of law that when an offence like murder takes place within the confines of the house, there is a corresponding burden of the inmates of the house to give a cogent explanation as on how the crime was committed and that they cannot get Page 50 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 away by keeping quiet. Reference may be had in this regard to the oft quoted judgment of the Apex Court rendered in the case of Trimukh Maroti Kirkan (supra). The following observations made by the Apex Court are worthy of note. “12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the taken accused; cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. circumstances that the 13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in the last few years. Cases are frequently coming before the courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonise a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in Page 51 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished. the time and the offence at 14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 AC 315 : (1944) 2 All ER 13 (HL)] — quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135] .) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: “(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.” 15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in Page 52 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 the house other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the to give a cogent inmates of explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish the prosecution and there is no duty at all on an accused to offer any explanation.” lies entirely upon its case 26. Keeping the above proposition in mind if we turn our attention to the defence of the accused as reflected in the suggestions put to the prosecution witnesses (except P.Ws.5 and 19) in cross-examination, we find no suggestion being put regarding death of the deceased. The cross-examination of these witnesses appears to be focused on the allegations of dowry demand and torture of the deceased for non-fulfillment thereof. In fact, none of the witnesses has even been remotely suggested that death of the deceased was due to natural cause like cardiac arrest. As regards P.Ws. 5 and 19, we have already discarded their versions as being completely unreliable and untrustworthy. Most importantly, as already discussed, in their examination under Section 313 of Cr.P.C., none of the accused persons has stated as to Page 53 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 what had happened at the relevant time or what could have caused her death. This only fortifies the suspicion that the accused persons or at least, accused Bimal had a role to play in the death of the mysterious deceased. We are of course conscious of the principle of law that suspicion howsoever grave is no substitute of proof yet, in the instant case we have, for the reasons aforesaid, felt persuaded to raise the presumption available under Section 113-B of the Indian Evidence Act. Under such circumstances, the absence of evidence as to the specific overt act committed by the accused persons is of no consequence inasmuch as the proof of the offence of Section 304-B IPC is concerned. 27. It has been argued that the evidence of P.Ws. 6,7, 9 & 20 has to be discarded as being based on hearsay, inasmuch as in the absence of call detail report it cannot be believed that there was any telephonic conversation between them and the deceased. Even otherwise, such evidence is not admissible to be utilized in the case as the deceased was not under expectation of Page 54 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 death at the relevant time so as to be admissible under Section 32 of the Indian Evidence Act. 28. We find no force in the above contention. It has been a long settled principle that if the maker of a statement refers to a transaction without actually apprehending death at that time and it is proved that such transaction ultimately resulted in his/her death then that part of the evidence relating to his/her statement would be admissible. Reference may be had in this regard to the celebrated judgment of the Privy Council in the case of Pakala Narayana Swami v. King-Emperor, reported in AIR 1939 PC 47: 1939 SCC OnLine PC 1. It was held that regardless of the fact that the maker of the statement was not expecting death while making the statement, if the transactions referred to by him in such statement are ultimately proved to have led to his death, the same would be admissible. The following observations are noteworthy: The first question with which their “4. Lordships propose to deal is whether the statement of the widow that on March 20 the deceased had told her that he was going to Berhampur as the accused’s wife had written and told him to go and receive payment of his Page 55 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 dues was admissible under s. 32, sub-s. 1, of the Indian Evidence Act, 1872. That section provides: “Statements written or verbal of relevant facts made by a person who is dead. . . . are themselves relevant facts in the following cases: (1.) when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. “Such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question.” 5. A variety of questions has been mooted in the Indian courts as to the effect of this section. It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the “circumstances” can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction : general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly releated to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. “Circumstances of the transaction” is a phrase Page 56 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 no doubt that conveys some limitations. It is not as broad as the analogous use in “circumstantial evidence” which includes evidence of all relevant facts. It is on the other hand narrower than “res gestae.” Circumstances must have some proximate relation to the actual occurrence : though, as for instance in a case of prolonged poisoning, they may be related to dates at a considerable distance from the date of the actual fatal dose. 29. In the instant case, these witnesses (P.Ws. 7, 9 & 20) have stated about the phone calls made by the deceased at different times prior to her death informing them of the torture meted out to her by her husband and her in-laws. We have already held that the death occurred under unnatural circumstances and in all human probability was as a result of non-fulfillment of demand for dowry. Therefore, even if the deceased was not expecting death, her reference to the torture meted out to her, as deposed by the above mentioned witnesses would become admissible under Section 32 of the Indian Evidence Act. In any case, assuming for a moment that their evidence has to be discarded then also the Court is left with the evidence of the informant P.W.-6 and P.W.-8 before whom the deceased had personally spoken about the ill-treatment by the accused persons. We have already Page 57 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 accepted the version of P.W.-6 and P.W.-8 as reliable and trustworthy and according to us, same by itself is adequate to establish the guilt of the accused persons. 30. Perusal of the impugned judgment reveals that the trial Court has held the cause of death as poisoning by holding that accused Bimal had given a glass of water to her just before her death. We find no evidence of the same. Therefore, such finding appears to be clearly erroneous. Nevertheless, this by itself will not nullify the ultimate finding of guilt with which we fully concur for the reasons indicated in detail hereinbefore. 31. Thus, from the conspectus of analysis of evidence made hereinbefore, we find that the following circumstances are borne out; (i) The accused persons demanded further dowry in the form of a diamond set, 50 tolas of gold, cash of Rs. 2 lakhs soon after the marriage. (ii) The deceased was subjected to mental and physical cruelty by her husband and in-laws for non-fulfillment of such demand. Page 58 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 (iii) The death of the deceased occurred otherwise than under normal circumstances and after only 4 months and 21 days of her marriage. (iv) Soon before her death, the deceased had complained of ill-treatment by the accused persons due to non-fulfillment of dowry on many occasions as also shortly before her death. (iv) Accused Bimal absconded for two days immediately after the occurrence. (v) The other accused persons absconded for a long time after the occurrence. (vi) Accused Bimal was the last person seen with the deceased and present in their bed room where she was found dead the next morning. (vi) Accused Bimal could not give a satisfactory explanation as to what transpired at the relevant time inside the bed room that led to the death of the deceased. His statement that she was unconscious and declared dead by the doctor after sometime, is not believable. 32. In our considered view all the aforesaid circumstances form a complete chain which is consistent Page 59 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 with the hypothesis that accused Bimal had caused the death of the deceased and that the other accused persons are guilty of demanding dowry and of subjecting the deceased to physical and mental torture in such connection. 33. In view of our findings as above, while disagreeing with the trial Court as to its finding regarding guilt of accused Bimal for the offence under Section 302 IPC we feel inclined to concur with the finding as regards the offence under Section 304-B IPC along with Section 498-A IPC and Section 4 of D.P. Act. In so far as the other accused persons are concerned we find no reason to differ from the findings of the trial Court as regards their conviction for the offence under Section 498-A IPC and Section 4 of D.P. Act. As regards the sentence, accused Bimal, as already stated, was imposed with the sentence of imprisonment for life. Section 304-B IPC prescribes a sentence which shall not be less than seven years but which may extend to imprisonment for life. Though we hold that accused Bimal cannot be held guilty of the offence of murder, yet we cannot lose sight of the fact that Page 60 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 he had caused dowry death of his wife, who was a young woman, aged about 22 years and who had just begun her marital life like any normal girl with dreams, hopes and aspirations of a happy and peaceful life. Alas, her life was cut short only because of the insatiable greed of her husband. We therefore, find no reason to treat accused Bimal with any leniency whatsoever. We feel it appropriate that he being guilty of dowry death, sentence of imprisonment for life would be just and proper in the facts and circumstances of the case. However, as regards the other accused persons, we are inclined to take a lenient view inasmuch as accused Kantadevi Khetan is presently of advanced age being nearly 65 years old. Similarly accused Sunil Kumar Khetan and Sujata Khetan are also aged nearly 50 years each. All of them were in prison for sometime during trial. Having regard to the sentence imposed nearly 15 years ago and also the aforementioned factors, we are of the considered view that ends of justice would be best served if the sentence is confined to the period already Signature Not Verified undergone by them instead of sending them to jail Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 61 of 62 to serve the remaining part of their sentence at this distance of time. 34.
Arguments
Heard Mr. B.P. Pradhan, learned counsel for the appellants in both the cases; Mr. J. Katikia, learned Addl. Government Advocate for the State and Mr. S.P. Mishra, learned Senior Counsel assisted by Mr. S.K. Zafarulla, learned counsel for the informant. 10. Mr. B.P. Pradhan, learned counsel for the appellants assails the impugned order of conviction on the Signature Not Verified following grounds: Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 10 of 62 (i) The case of the prosecution being based entirely on circumstantial evidence, it was necessary that the evidence must show a chain so complete as not to leave any reasonable ground to show that the accused may have been innocent. On the contrary, the chain of circumstances must show that in all human probability the act must have been committed by the accused. Mr. Pradhan has relied upon the oft quoted judgment of the Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116. According to Mr. Pradhan there is absolutely no evidence to show that accused Bimal had committed murder of his wife nor is there any evidence to show that the deceased committed suicide because of torture inflicted on her by her in-laws in connection with demand for dowry. On the contrary, the evidence clearly suggests that the death of the deceased was due to natural reasons, namely cardiac arrest. Mr. Pradhan would further argue that learned Addl. Sessions Judge placed undue reliance on the Page 11 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 evidence of P.Ws. 6, 7, 8, 9 & 10 overlooking the fact that the same is nothing but hearsay evidence and therefore, not admissible either under Section 32 or Section 60 of the Indian Evidence Act. In this context, Mr. Pradhan relies upon the judgment of the apex court rendered in the case of Vinay D. Nagar vs. State of Rajasthan, reported in (2008) 40 OCR (SC) 141. (ii) Prosecution could not prove that the death of deceased was homicidal, suicidal or unnatural as according to the autopsy surgeons (P.Ws. 5 and 19), death was due to sudden cardiac arrest, which is a natural death. Further, the I.O. did not mention any suspicious circumstance at the spot in the relevant column of the inquest report and there was no mark of violence. Further, the chemical examination report of the viscera (Ext.A), of vomiting (Ext.B) and post mortem report (Ext.4) ruled out poisoning, (iii) Though learned Addl. Sessions Judge presumed that death of the deceased was due to poisoning, it was never put to the accused during his Page 12 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 examination under Section 313 of Cr.P.C. Moreover, the circumstance that the deceased was sleeping with accused Bimal at the relevant time and that he had given a glass of water was also not put to the accused but utilized against him. (iv) There is no acceptable evidence to show that the deceased was subjected to cruelty soon before her death. Learned Addl. Sessions Judge relied upon the evidence of P.Ws. 6, 7, 8, 9 & 20 who are all close relatives of the deceased but ignored the evidence of P.Ws. 1, 3, 15, 16 and 18. In any case, the evidence of the relative witnesses is based on hearsay and therefore, not admissible. (v) Learned Addl. Sessions Judge has placed the burden of proof on the accused overlooking the fact that prosecution had failed to discharge its initial burden and therefore, the burden could not have shifted to the accused. (vi) The findings of learned Addl. Sessions Judge are contradictory inasmuch as there is no proof that the death of the deceased was due to poisoning on Page 13 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 the face of the evidence of the doctors that such death was natural being due to cardiac arrest. (vii) Since death of the deceased was natural, the conviction under Section 302/304-B of IPC is entirely illegal. (viii) It is the well settled position of law that the Court cannot substitute its own opinion for that of the medical evidence on record. In the instant case when medical evidence clearly reveals that the cause of death was natural, learned Addl. Sessions Judge could not have formed an opinion of his own that it was due to poisoning. (ix) The version of P.Ws. 6, 7, 9 & 20 of being informed by the deceased over telephone about dowry demand and torture is not admissible under Section 32 of the Indian Evidence Act. (x) Learned Addl. Sessions Judge has discarded the evidence of P.Ws. 5, 13, 16 and 18 on the ground that that they had turned hostile thereby ignoring the settled position of law that even that part of the evidence of a hostile witness can be acted upon if it Page 14 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 is found to be trustworthy. In this regard, Mr. Pradhan has relied upon a judgment of the Apex Court reported in K. Anbazhagan vs. Superintendent of Police and others etc., reported in (2004) 27 OCR (SC) 380. 11. Per contra, Mr. J. Katikia, learned Addl. Government Advocate has supported the impugned judgment on the ground that the evidence on record clearly shows that the death of the deceased was due to asphyxia. According to Mr. Katikia, once this much is accepted, the case of the prosecution stands automatically proved in view of the clear and cogent evidence of torture of the deceased by the accused persons in connection with demand for dowry soon before her death. In this regard, Mr. Katikia has relied upon some text books of Medical Jurisprudence and Forensic Medicine, which would be referred to at the appropriate place later. Mr. Katikia further argues that the Court can always substitute its own opinion for the doctors if the medical evidence is inherently defective. Mr. Katikia has relied upon the Signature Not Verified judgment of the Apex Court in the case of Mafabhai Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 15 of 62 Nagarbhai Raval v. State of Gujarat, reported in (1992) 4 SCC 69. According to Mr. Katikia both the doctors have not stated in clear terms that the death of the deceased was due to cardiac arrest. In any case, their evidence as regards cardiac arrest runs contrary to medical science. On the contrary, the external appearance of the dead body of the deceased along with presence of other materials such as dried blood, froth and vomit are fully consistent with the medical condition known as asphyxia. Therefore, learned Addl. Sessions Judge committed no illegality in discarding the evidence of the doctors. This being a case where death of the deceased had occurred in her bed room wherein the only other person present was accused Bimal, it was obviously within his special knowledge as to what had transpired at the relevant time. To such extent therefore, and on the face of other evidence showing torture of the deceased in connection with demand for dowry, the burden shifts to the defence. According to Mr. Katikia, the defence failed to discharge such burden. In this context, Mr. Katikia has relied upon the decision of Page 16 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 the Apex Court in the case of Trimukh Maroti Kirkan v. State of Maharashtra, reported in (2006) 10 SCC 681. 12. Mr. S.P. Mishra, learned Senior Counsel appearing for the informant while supporting the contentions put forth by Mr. Katikia as referred to in the preceding paragraphs, additionally argues that the deceased being a young woman of 22 years without history of any illness or ailment or cardiac ailment cannot be expected to suffer a cardiac arrest out of the blue. In the instant case, the doctors alone were competent to opine about the cause of death but they did not say anything at all and said so only on being cross-examined by the defence. Mr. Mishra further argues that from the very conduct of P.W.-5, who is a senior doctor, it is evident that having seen the dead body at the first instance he could have given such opinion at that time but he did not say so anywhere till his testimony before the Court two years after the occurrence. Mr. Mishra further submits that the conduct of the accused persons in absconding from the house is highly significant Signature Not Verified inasmuch as if the death was due to natural causes, there Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 17 of 62 was no reason for them to do so. However, the fact that none of the accused persons informed the family members of the deceased about her death only adds to the suspicious conduct on their part. 13. Having heard learned counsel for the parties at length and before adverting to the merits of the rival contentions noted above, it would be apposite to keep in perspective the essential ingredients of the alleged offences at the outset. It is trite that in order to establish the charge under Section 302 of IPC, prosecution has to prove that the accused caused the death of a person by doing an act with the intention of causing his death and where the exceptions of Section 300 are not attracted. In other words, the death must be caused with the intention of (a) causing death; or (b) causing such bodily injury as is likely to cause death. The above are the ingredients of culpable homicide. Such act would amount to murder if the following five exceptions provided under Section 300 are not attracted namely, “Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, Page 18 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:— First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.—Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. is committed without premeditation Exception 4.—Culpable homicide is not murder if it in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner. Page 19 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.—Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 13.1. Coming to the ingredients of the offence under Section 304-B, the provision reads as follows: 304B, Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death. she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "Dowry death", and such husband or relative shall be deemed to have caused her death. Explanation: For the purpose of this sub-section "dowry" shall have the same meaning as in S.2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. 13.2. Bare reading of the provision makes it clear that the essential ingredients necessary to attract Section 304B are as follows: 1. Death should be caused by burns or bodily injury or by any other circumstances. 2. Death must occur within the seven years of marriage. Page 20 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 3. It must be revealed that soon before her marriage she was exposed to cruelty or harassment by her husband or any other relative. 4. The cruelty or harassment on her should be in connection with the demand for dowry. It is well settled that when the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have caused death. In other words, if the above ingredients are attracted, the Court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. Reference may be had in this regard to the decision of the Apex Court in the case of Maya Devi vs. State of Haryana, reported in (2015) 17 SCC 405. 13.3. It would also be proper at this stage to refer to Section 113-B of the Indian Evidence Act, which reads as follows; “113B. Presumption as to dowry death. - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. Page 21 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Explanation. For the purposes of this section, dowry death shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).” It is trite that to invoke the presumption under Section 113-B, it is imperative for the prosecution to prove that soon before death of the wife, she was subjected to cruelty or harassment by her husband and his relatives in connection with demand for dowry. Once this initial burden is discharged by the prosecution the burden shifts to the accused, who can rebut the evidence adduced by the prosecution. 13.4. Having kept the essential ingredients of the major offences in mind, we shall now proceed to analyze the prosecution evidence independently to see how far the same goes to establish the guilt of the accused. While doing so, we shall also take note of the contentions advanced by the parties as and when required. 14. Both parties have argued at length as to the cause of death of the deceased. According to the prosecution, such death was unnatural and therefore, Signature Not Verified comes within the ambit of the expression „otherwise than Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 22 of 62 under normal circumstances‟ used in Section 304-B of IPC. The defence, on the other hand has attempted to describe the death of the deceased as a purely natural death having been caused due to cardiac arrest. There is no dispute that the deceased was found dead in her bed room. The inquest report marked Ext.1 describes the position of the dead body at that time. The I.O. did not find any evidence of foul play apparently because of absence of any bodily injuries though he found blood and froth coming out from the mouth and nostrils of the dead body upon turning it during inquest. Further, the scientific team found some vomitous substance at the spot which was collected and sent for chemical examination. The postmortem report marked as Ext.4 reveals the following. “1) The age of the deceased 22 years (2) she average built (3) Rigour motis present (4) both upper and lower lips present and absent in neck then dried blood mixed with (froth), is present on both nostrils and mouth. No external injury is found on the body. 2. On dissection, thorax cavity and lungs and heart were intact, normal and congested Left ventricle of heart and was empty and dried contains few amount of blood. Organ of abdominal congested. Stomach cavities were intact, normal and contains 200 c.c. of colourless Page 23 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 fluid. Small intestine also contains colourless fluid. Large intestine contains fecal materials. Urinary bladder contains 50 C.C. of urine. Uterous is normal in size. Brain and spinal cord were intact. Viscera is preserved, lungs, heart, liver, kidney and spleen stomach and its contains. Small its contents. Presumptive concentrated common salt solution.” intestine and 14.1 Thus, on the face of it, there is nothing in either the inquest report or the postmortem report to suggest that the death of the deceased was in any manner unnatural save and except the presence of dried blood mixed with froth on both nostrils and mouth. Of course, the informant has stated that the death of the deceased was caused by the accused persons in connection with demand for dowry and the same is duly endorsed on the inquest report (Ext.-1), but the same, per se, cannot be treated as conclusive evidence. 14.2 Coming to the evidence of the autopsy surgeons, namely P.Ws. 5 and 19, it is observed that both of them have not come forward to positively state as to what had caused the death of the deceased. It is only during cross-examination by the defence that both of them opined that death was due to cardiac arrest. The Page 24 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 relevant portion of the statement of P.Ws. 5 in cross- examination is quoted hereunder: “I advised the accused persons to report the death of deceased to police. We did not find any external or internal injury on the body of the deceased. Absence of such injury rules out application of force. We reserved the opinion awaiting to chemical examination report of the Viscera, to ascertain about poisoning or not. Police has not called for any further report from us after receipt Viscera report. On perusal of Chemical examination report of the Viscera I do not find if it is a case of poisoning. So, also, the chemical examination report of vomiting etc., I do not fine poison substance. Going through the postmortem report and chemical examination report I find the case of poisoning is ruled out. In my opinion after perusal of the postmortem report the death was due to cardiology. There are instances of a healthy young person’s dying due to cardia. The death due to cardia, is called cardia-death. One can dies within one hour of the onset of symptoms. of the various causes of cardia many are not detected in postmortem report. There may be vomiting in cardia-crest. Vomiting also occurs in case hyperacidity, gastro disorder and other caucauses. Death due to Cardia-crest is natural death. 6. I do not find presence of bad blood mixed with fluid in the inquest report, (Ext.1). But it is found in the inquest report coming that coming of blood fluid from the nostril and mouth when the dead body was turned. After some hour of death, blood and other fluids comes out from the dead body through the different outlet including nose and mouth. The dried blood metexs and foluid which we noticed during postmortem that may be blood metest and fluid that might be coming out at the time of inquest. During postmortem we found that left venitcle empty, as the blood of left venticle might have come out from the body through mouth and nostrils along with other fluid. Harrisons principle of internal medicine is the authority on the subject through out the Page 25 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 textbook world. Books by Paraiekh and Modi are for medical students. prescribed According Harrison 503 of all cardia death are all sudden Cardia death and Candia disorder is constitute is the most common cause of natural death.” 14.3 The evidence of other autopsy surgeon (P.W.- 19) is, by and large, on similar lines. She did not say anything as regards the cause of death during her examination-in-chief but came out with all details in course of her cross-examination by the defence. The relevant portion of her statement is quoted hereunder: “We preserved the opinion pending chemical report of viscera.-as per the instruction. In the present case the chemical examination report of viscera was not placed before me. For giving opinion of the cause of death. viscera is preserved to find out whether there is poisoning or not. The chemical examination report of the viscera does not disclose containing of poison substance in the viscera. Ext. A is the C.E. report of viscera. Ext.B is the C.E. report of vomiting substance, which also does not disclose any poison substance. Both the reports Ext. A & B were not placed before us for our opinion. After seeing both the reports Exts. A & B and the post mortem report, I am of the opinion that the probable cause of death is sudden cardiac arrest. Sudden cardiac arrest leads to sudden cardiac death. Sudden cardiac death is the natural death. In the present case death is a natural death arising out of sudden cardiac death I did not find any external and internal injury on the dead body. Apparently healthy and young people also succumbed to sudden cardiac death. Sudden cardiac death may occurred within one hour of the unset of symptom. Sometimes there occurs vomiting in cardiac arrest. Vomiting also occurs due to hyperacidity Page 26 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 due to gastro intestinal disorder or due to infection” 14.4 On a bare reading of the evidence of the autopsy surgeons it is clear that neither of them positively testified about the cause of death on their own but did so only when asked by the defence. It is highly significant to note that P.W.-5 had been called to the house of the accused persons at the first instance on the date of occurrence. It is he who first declared the deceased dead. His conduct appears highly suspicious inasmuch as he states in his examination-in-chief that in the morning of the date of occurrence being called by the relations of the deceased he went to their house and found her dead and specifically that he did not find any incriminating materials at the spot. Despite stating so, he further admits to have advised the accused persons to report the death of the deceased to police. He again stated in cross- examination that he did not find suspicious circumstances suggesting foul play but as the deceased died within seven years of marriage and was a young lady he suggested to her husband and others to inform the matter to police about the death. This is very surprising Page 27 of 62 Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 and apparently contradictory, inasmuch as if there was no incriminating/suspicious circumstances where was the occasion to advise the accused persons to report the matter to police? Secondly, being a senior doctor, he himself did not deem it proper to inform the police. What comes out as even more surprising is that his opinion that the deceased died due to cardiac arrest was given for the first time before the Court nearly two years after the occurrence. P.W.-5 has attempted to explain this by stating that he had reserved opinion awaiting the chemical examination but then this is hardly acceptable for the reason that being a senior doctor himself he could
Decision
In the result, CRLA No. 455 of 2008 is allowed in part. The impugned order of conviction in so far as it relates to the offence punishable under Section 302 IPC is hereby set aside but the same relating to the offence under Sections 304-B/498-A and Section 4 of D.P. Act is hereby confirmed. However, the sentence of imprisonment for life also stands confirmed. CRLA No. 417 of 2008 is also allowed in part. The impugned order of conviction is confirmed but the sentence imposed by the trial Court is modified only to the extent that the same shall be confined to the period of imprisonment already undergone by the convicts. They being on bail, their bail bonds be discharged. I agree (Sashikanta Mishra) Judge (S. Talapatra) Chief Justice Orissa High Court, Cuttack, Dated the 29th September, 2023/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-Oct-2023 11:50:01 Page 62 of 62