High Court
Case Details
HIGH COURT OF ORISSA: CUTTACK CRLA NO. 359 OF 2011 From the judgment dated 19.5.2011 passed by Shri G.C. Panigrahi, Addl. Sessions Judge, Deogarh in S.T. Case No. 8 of 2011. ------------- Purusottam Pradhan ……. Appellant -Versus- State of Orissa ……. Respondent For Appellant : M/s. A. Das, G.P. Panda, Amarendra Das, A. Das & S.K. Rout. For Respondent : Addl. Government Advocate ------------------------------ Date of Judgment: 06.05.2013 P R E S E N T: ------------------------------ ----------------------------------------------------------------------------------------------------- This appeal has been preferred against the order of M.M. Das, J.
Legal Reasoning
THE HONOURABLE SHRI JUSTICE M.M.DAS conviction and sentence passed by the learned Addl. Sessions Judge, Deogarh against the appellant in S.T. Case No. 8 of 2011 under sections 498-A/304-B I.P.C. read with section 4 of the D.P. Act. 2. The appellant along with his parents faced the trial for alleged commission of offence under sections 498-A/302/406/34 I.P.C. read with section 4 of the D.P. Act. The case of the prosecution was that the accused-appellant got married to the deceased Sairendri Biswal, who is the daughter of the informant on 5.3.2003 as per the Hindu Rites and Customs. At the time of marriage, the informant gave one Hero Honda Motor Cycle and one gold chain along with 2 other household articles to the appellant, but the appellant was not satisfied with the said articles for which he started ill-treating the deceased both mentally and physically. The accused persons were not permitting the deceased to visit her parents’ house frequently even during festivals. During the year of the marriage at the time of car festival, the informant went to the house of the accused to bring his daughter (deceased) to his house. The in-laws of the deceased allowed her to go to her parents’ house along with the informant (father). On the way, the informant and the deceased stayed at village Nuadihi in the house of one of their relatives. The appellant came to that place in the evening and abused the deceased in filthy language questioning her as to how she has left her house during his absence. Subsequently, the deceased gave birth to a male child on 28.5.2004 at her parents’ place. The appellant thereafter went to the house of the informant and again abused the deceased for which she returned back to her in-laws house. On 26.7.2004 at about 12 noon, the informant received a telephone call and was informed regarding illness of the deceased. Thereafter, the informant and his family members went to the house of the accused persons in a vehicle and the informant found some villagers to be present in the house of the accused persons and saw the deceased lying on a rope cot on the verandah of the house. They also saw blood coming out from the nose of the deceased. On being asked, the elder sister of the appellant told them that the deceased became serious after cooking. 3 The father-in-law and mother-in-law of the deceased as well as the elder sister and brother-in-law of the appellant along with villagers are said to be present, when the deceased became serious. The prosecution case further discloses that the deceased was carried to the Hospital, but on the way near river Gohira, she was found dead for which she was brought back to the village. On the above allegations, a charge-sheet was submitted against the accused persons. Charges were framed for commission of offence under the aforesaid sections of the I.P.C. and D.P. Act. 3. The plea of the defence was a total denial of the occurrence. 4. During trial, the prosecution examined 16 witnesses to establish its case whereas the accused persons have examined one witness. Out of the said witnesses, P.W. 1, the informant while corroborating the F.I.R. story stated that the deceased (his daughter) was being assaulted and the dowry articles were not up to the choice of the accused persons. The accused persons were abusing the deceased. They also asked the deceased to return the motor cycle and bring a cash of Rs. 1,00,000/- from her father. P.W. 2 is a cousin brother of the informant, P.W. 3 is the sister of the deceased and P.W. 5 is the brother-in-law of the deceased. Out of the statements of the above witnesses, it appears that they have heard from the father of the deceased that the accused persons were not satisfied with the dowry articles and demanded a cash of 4 Rs. 1,00,000/- towards dowry. However, they have corroborated the fact that the deceased was tortured by the appellant. P.W. 3 who is the sister of the deceased, has stated that prior to death of the deceased, she had informed P.W. 3 over telephone that the accused persons are quarrelling with her and ill-treating her stating that her brother had got sufficient dowry articles and she brought nothing. P.W. 4 is the co-villager of the accused persons, who made the telephone call after death of the deceased to the informant, as he was requested by the appellant to inform the matter to the informant and accordingly, he informed the informant over telephone with regard to the fact of death of the deceased. The other witnesses, who are co- villagers of the informant, appear to have no direct knowledge with regard to the occurrence. The seizure witnesses have been examined. The Medical Officer, who conducted postmortem examination, has been examined as P.W. 10. P.Ws. 11, 12 and 16 are the Investigating Officers at different stages of the investigation and the defence witness (D.W. 1) is the brother-in-law of the appellant. 5. The trial court after analyzing the evidence adduced by the prosecution and the defence found that the Medical Officer, P.W. 6, who conducted post-mortem examination, has opined that the deceased died due to poisoning. From the evidence adduced by P.W. 14, it appears that she is an immediate neighbour of the accused persons and on the relevant date and time, she being called by the 5 mother-in-law of the deceased went to their house and found that the deceased was vomiting and subsequently the deceased died on the way to the Hospital. She has also stated that she heard from the deceased that her mother-in-law has ill-treated her, but in the cross- examination, she stated that the deceased and her husband were living happily prior to the occurrence. The deceased having died due to consumption of poison, her death is an unnatural one. The trial court finding that her death is an unnatural one and was within seven years of her marriage and further finding that the deceased was subjected to cruelty/ill-treatment and harassment both mentally and physically by her husband (appellant) in connection with demand of dowry and there is no direct and cogent evidence on record against the father-in-law and mother-in-law of the deceased, who were also co-accused persons, that they were ill-treating the deceased in connection with demand of dowry, concluded that commission of offence under sections 498-A/304-B I.P.C. read with section 4 of the D.P. Act has been established against the appellant, but not proved against the other accused persons, i.e. father-in-law and mother-in-law of the deceased. Accordingly, the trial court recorded an order of conviction under the aforesaid sections against the appellant while acquitting his parents from the said charges. Hearing on the question of sentence, the trial court directed the appellant to undergo R.I. for 10 years for the offence under section 304-B I.P.C. and undergo R.I. for three years and to pay fine a sum 6 of Rs. 5000/- in default to undergo R.I. for six months more for the offence under section 498-A I.P.C. as well as to undergo R.I. for one year and to pay fine a sum of Rs. 3000/- in default to undergo R.I. for six months more under Section 4 of the D.P. Act. The trial court further directed that the substantive sentences shall run concurrently and the period undergone as U.T.P. shall be set off. The accused-appellant has, therefore, preferred the present appeal. 6. On appreciating the evidence adduced by the prosecution, as stated above, this Court finding that the prosecution has proved the case for commission of offence under section 498-A I.P.C. read with section 4 of the D.P. Act does not interfere with the said order of conviction and sentence imposed for the same on the appellant. However, with regard to the offence under section 304-B I.P.C., this Court finds that to prove the charge under section 304-B I.P.C. the fact required to be seen is that the death of the deceased must be an unnatural one and must be within seven years of marriage. The said requirement exists in the present case. With regard to the other ingredients of section 304-B I.P.C., as it is seen from the evidence of the witnesses examined that the minimum conduct of the accused-appellant and his parents in rushing the deceased to the Hospital is quite consistent with their plea of innocence in the circumstances of the case. However, this Court finds that there is no evidence that the deceased was subjected to cruelty or harassment in connection with demand of dowry soon 7 before her death has not been proved by the prosecution. This vital ingredient of section 304-B I.P.C. being found absence, this Court finds that the trial court is not correct in holding that the appellant is found guilty under section 304-B I.P.C. Accordingly, the order of conviction against the appellant under section 304-B I.P.C. is set aside as well as the sentence imposed therefor. 7.
Decision
In the result, therefore, the accused-appellant is found guilty of the offence under section 498-A I.P.C. read with section 4 of the D.P. Act and the sentence imposed by the learned trial court for the said offences stands confirmed. The period undergone by the appellant as UTP as well as after the judgment passed by the learned court below, shall be set off from the sentences imposed as above. If it is found that the appellant has already suffered the total period of sentence, he shall be released from the custody forthwith. The Criminal Appeal is accordingly allowed in part. ………………….. M.M. Das, J. Orissa High Court, Cuttack. May 06th , 2013/bks