The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 195 of 2004 (In the matter of an application under Section 374(2) of Criminal Procedure Code) Tikayat Behera ……. Appellant -Versus- State of Orissa ……. Respondent
Legal Reasoning
For the Appellant : Mr. B.R. Mohanty, Advocate For the Respondent : Mr. R.B. Dash, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 10.07.2025 : Date of Judgment: 18.07.2025 S.S. Mishra, J. The present appeal is directed against the judgment and order dated 07.04.2004 passed by the learned Additional Sessions Judge, Fast Track Court, Baripada in Sessions Trial Case No.26/221 of 2003, whereby the learned trial Court has convicted the accused- appellant for the offences punishable under Section 498-A of IPC and sentenced him to undergo R.I. for two years and to pay a fine of Rs.1000/- and in default to further undergo R.I. for six months. 2. Heard Mr. B.R. Mohanty, learned counsel for the appellant and Mr. R.B. Dash, learned counsel for the State. 3. The prosecution case is that the marriage between Raibari Behera, the sister of the informant (P.W.1) was solemnized with the present appellant nine years back from the alleged date of occurrence. It is alleged that after nine years of married life, they had no issue for which the appellant was contemplating for second marriage and the appellant was forcing the deceased to leave the marital home. It is also alleged that P.W.1 had not given promised dowry articles like cycle and palanka to the appellant. On 21.02.2003 at about 10.30 P.M., the appellant along with another came to the house of the informant and apprised him about the admission of the deceased in Sukruli hospital. Thereafter, the informant and his family members came to know that the dead body of his deceased sister has already been cremated. Page 2 of 9 4. On the basis of the aforementioned allegations, investigation of the case was conducted and charge sheet was filed against the appellant and his father for the alleged commission of offence punishable under Sections 302/201/498-A/34 of IPC. Accordingly, charges were framed and the appellant and co-accused were put to trial. 5. The prosecution examined as many as seven witnesses to substantiate its case. P.W.1 was the informant, who is the brother of the deceased. P.W.2 and P.W.3 are also the brother and mother of the deceased respectively, whereas P.Ws 4 and 6 were the co-villagers and independent witnesses. P.W.7 was the investigating officer of the present case. 6. The appellant and the co-accused took a stand of complete denial of the charges and claimed trial. 7. The learned trial court on a threadbare analysis of the evidence came to the conclusion that the prosecution has failed to prove the case against the appellant and the co-accused of the charges under Sections Page 3 of 9 302/201/34 IPC and accordingly acquitted them. The State has not challenged the same. 8. The co-accused, father of the present appellant was also found not guilty for the offence punishable under Section 498-A of IPC. However, the appellant was found guilty of offence punishable under Section 498- A of IPC and was sentenced to undergo R.I. for two years and to pay fine of Rs.1000/- and in default to undergo further imprisonment for six months. 9. Aggrieved by the aforementioned judgment and order of the learned Additional Sessions Judge, Fast Track Court, Baripada in S.T. Case No. 26/221 of 2003, the present appellant has preferred the appeal in subject. 10. I have carefully gone through the evidence on record and the finding recorded by the learned trial court on the appreciation of the evidence brought on record by the prosecution. Paragraphs- 9 and 10 of the judgment under challenge is relevant to be reproduced which concisely dealt with the entire evidence: Page 4 of 9 “9. It is the cardinal principle of law that graver is the offence stricter is the proof. In the instant case it seems as because the dead body of deceased has been cremated without showing the P.W.1 and his brother and mother the allegation of murder has been hurled over the accused persons. As per the evidence of P.W.1 out of suspicion they have lodged the FIR against the accused persons but in a case of murder mere suspicion and conjecture cannot take the place of proof unless it is duly established beyond all reasonable doubt. As per the evidence of P.W.1 his village Sekerdehi is at a distance of 80 kilometers from the village of accused persons and is no direct road communication. Under the above circumstance the accused person might have cremated the dead body due to late arrival of her relation. Moreover the accused Janarakhya Behera has stated in his 313 Cr.P.C. statement he had gone to the house of P.W.1 but they did not turn up. Thus there is no material on behalf of prosecution to believe that the accused persons committed murder of deceased Raibari Behera. Accordingly there is also no evidence that the accused persons cremated the dead body of deceased to disappear certain evidence to screen themselves from the legal punishment. there in that their house 10. The P.W.2 stated in his evidence that at the time of marriage they had given to their sister cash of Rs.4,000/- and other articles. He further stated that his sister told the accused persons are them demanding cycle and one cot and cash and due to want of articles the accused persons are assaulting her. The P.W.2 further stated the accused persons also tortured his sister as she had no issue and due to want of demand. In cross- examination P.W.2 stated they have informed at Raruan P.S. regarding the tortured of accused persons to his sister due to want of dowry. The P.W.3 mother of deceased, stated that as per daughter Raibari had no issue the accused persons are abusing her as barren lady. The P.W.4 is the co-villager of P.W.1. He stated in his evidence when Page 5 of 9 leading question were put to him after being declared hostile by the prosecution that he stated before the police that Raibari coming to the house of P.W.1 told to give cash and other articles or else they are threatening to drive her out from the house and at that time he was present. The P.W.5 is the co-villager of P.W1. She stated in her evidence that deceased Raibari was telling her that accused persons were torturing her due to cycle, cot and some un paid cash as per demand. She further stated as Raibari had no issue the accused persons were abusing her as a barren lady and assaulting her. The P.W.7 is the I.O. in this case. He stated in his evidence on 14.03.2003 he seized dowry articles from the house of accused persons under seizure list Ext.4. The accused Janarakhya Behera in his 313 Cr.P.C. statement admitted the evidence of P.W.2 that they had given Raibari a cash of Rs.4,000/- and other articles at the time of marriage to which I.O. P.W.7 seized on 14.3.03 as per seizure list Ext.4. However, the accused Tikayat Behera denied about the given of such dowry articles as per evidence of P.W.2. The accused Tikayat Behera also stated in his 313 Cr.P.C. statement that he cannot say if the said dowry articles were seized by P.W.7 on 14.3.03 as per Ext.4. From the evidence of P.Ws. 2, 3, 4 and 5 it clearly appears that the accused persons were not only torturing the deceased for demand of dowry articles like cycle and cot as well as for unpaid cash but also the accused persons were mentally torturing to deceased by terming her barren lady. The giving of dowry articles and its seizure is admitted by accused Janarakhya Behera. The accused Janarakhya Behera stated in his 313 Cr.P.C. statement that he had gone to outside to beat drum as it was his profession and he had no knowledge about the occurrence. There is no direct evidence counter acting the stand of accused Janarakhya Behera beyond all reasonable doubt that he participated along with his son accused Tikayat Behera in torturing mentally as well as physically to deceased Raibari Behera for which the accused Janarakhya Behera Page 6 of 9 is entitled for benefit of doubt. Moreover the conduct of accused Janarakhya Behera as per the prosecution evidence that he went to the house of P.W.1 to inform about the illness about the deceased also stand at par this innocence and shakes the prosecution evidence regarding his involvement in torturing the deceased. However, there are sufficient evidence against the accused Tikayat Behera who is the husband of Raibari Behera that he tortured mentally and physically to deceased Raibari Behera not only for demand of dowry but also terming her barren lady during her life time for which the accused Tikayat Behera is liable for the offence U/s 498-A I.P.C.” 11. Mr. Mohanty, learned counsel for the appellant, at the outset submitted that he would confine his argument to the quantum of sentence alone instead of adverting to the merits of the case. He has submitted that the appellant was arrested on 04.03.2003 and was released on bail by this Court on 22.09.2004. Therefore, the appellant has already undergone custody for a period of one year six months and eighteen days. In that view of the matter, he submits that the sentence imposed by the trial court against the appellant in lieu of the conviction under Section 498-A may be reduced to the sentence already undergone by the appellant. I have verified the submission advanced by Mr. Mohanty, learned counsel for the appellant from the record. The counsel for the State also confirms the undergone period of the appellant. Page 7 of 9 12. Learned counsel for the State on the other hand submits that the appellant is not challenging the conviction, rather learned counsel for the appellant confining his argument to the quantum of sentence. Therefore, it is left open to the discretion of this Court to modify the sentence. 13. The appellant was 28 years of age at the time of incident, i.e., in the year 2003. Therefore, at present he is 50 years of age. The appellant was convicted by the learned trial court vide judgment and order dated 07.04.2004. He preferred the appeal on 12.07.2004 and since then the appeal is pending. The appellant is already settled in his life and he has a clean antecedent. In that view of the matter, this Court deem it appropriate to modify the sentence of two years R.I. to the sentence that of the appellant has already undergone, because at the belated stage subjecting the appellant to serve out the remaining sentence imposed by the trial court would not only be harsh but also detrimental to the entire family members of the appellant. I am also inclined to modify the fine of Rs.1000/- to that of fine of Rs.500/- (Five hundred) and in default of Page 8 of 9 making such fine amount; the appellant shall undergo R.I. for one month. 14. With the above modification, the CRA is accordingly partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 18th July, 2025/Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 18-Jul-2025 18:33:20 Page 9 of 9