Criminal Appeal No. 17 of 2011 · The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.215 of 2011 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Gopal Krushna Badatia @ Badatya & others ……. Petitioners -Versus- State of Orissa ……. Opposite Party For the Petitioners : Mr. S.K. Pradhan, Advocate For the Opp. Party : Mr. B.K. Ragada, Additional Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 17.05.2024: Date of Judgment: 20.06.2024 S.S. Mishra, J. 1. The present Criminal Revision filed under Section 401 r/w Section 397 of Cr.P.C. is directed against the judgment and order dated 09.03.2011 passed by the learned Addl. Sessions Judge-cum-Special Judge (Vigilance), Berhampur in Criminal Appeal No.17 of 2011 (Crl. Appeal No.27/10-GDC), whereby the judgment of conviction and order of sentence passed by the learned J.M.F.C., Digapahandi, Ganjam in
Legal Reasoning
G.R. Case No.195/1996 (T.R. No.451/1997) has been confirmed. 2. The petitioners were subjected to prosecution in Nuagaon P.S. Case No.69 of 1996 which was registered under Sections 498(A)/406/34 of IPC. 3. The prosecution case in brief is that the informant, namely Manjula Badatia, married to the elder brother of the petitioners, namely
Legal Reasoning
Panchanan Badatia on 11.09.1994 as per Hindu rites and customs. It was her case that she and Panchanan had a love affair prior to the marriage. Out of such a relationship, she became pregnant and when the villagers came to know that fact, a meeting was convened and there Panchanan Badatia agreed to marry her. After her marriage, she spent one year of conjugal life with said Panchanan in a rented house along with her in- laws. It is further alleged that her husband’s family members were exerting physical and mental torture on her to bring more dowry. Page 2 of 13 On 15.08.1995 she was assaulted by her husband’s family and was forced to bring Rs.20,000/-, they also took her husband from the rented house. Subsequently, on 28.06.1996 her husband married another girl named Shanti. By that time, the victim was also blessed with a male child namely Jogendra. After the marriage of the victim’s husband with Shanti, their family members tortured the victim further and drove her away from their house. On the basis of such allegation, F.I.R. was lodged at Nuagaon Police Station, which was registered under Sections 498(A)/406/34 of IPC. After completion of investigation, charge-sheet was submitted against the petitioners for alleged offences under Sections 498(A)/406/34 of IPC read with Section 4 of the Dowry Prohibition Act. The learned trial court framed charges against them and they were put to trial. 4. To bring home charges, the prosecution had examined as many as 5 witnesses and exhibited 3 documents. Out of them, the informant, who was the victim, was examined as P.W.1 and the rest were the occurrence witnesses. The plea of defence was that of complete denial. In proof of their defence, no witness had been examined. Page 3 of 13 5. The learned trial Court analyzed the entire evidence on record and found that the petitioners were not guilty of the offences under Sections 406/34 of I.P.C read with Section 4 of the Dowry Prohibition Act and acquitted them from the said charges according to the provision under Section 248(1) of Cr.P.C. But they were found guilty for the offence under Sections 498(A)/34 of I.P.C and sentenced them to undergo S.I. for six months each and to pay fine of Rs.500/- only each, in default to undergo S.I. for 15 days. 6. The judgment of conviction and sentence dated 17.04.2010 passed by the learned J.M.F.C., Digapahandi, Ganjam in G.R. Case No.195/1996 (T.R. No.451/1997) was called in question by filing Criminal Appeal No.17 of 2011 (Crl. Appeal No.27/10-GDC) before the Court of the learned Additional Sessions Judge-cum-Special Judge (Vigilance), Berhampur, by the petitioners. The said appeal of the petitioner has failed. 7. The petitioners have challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. Page 4 of 13 8. Heard Mr. S.K. Pradhan, learned counsel for the petitioners and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 9. Perused the impugned judgment of conviction and order of sentence passed against the petitioners and meticulously evaluated the evidence on record. 10. The petitioners are the brother-in-laws of the informant Manjula Badatia. From the evidence it is evident that the informant Manjula Badatia was in a love relationship with one Panchanan Badatia, who is the brother of the accused persons/petitioners. Before marriage, the informant was impregnated by Panchanan. It appears that Panchanan is the cousin brother of the informant. When the informant became pregnant before marriage, pressure was built by the villagers on Panchanan to marry the informant. Accordingly, the informant and said Panchanan got married. The informant allegedly started staying with Panchanan in a rented accommodation. During that period, it was alleged that the present petitioners tortured the informant. Page 5 of 13 11. Prosecution examined the informant as P.W.1. Prosecution also examined P.W.3, who is the sister of P.W.1. P.W.2 is a relative. P.W.5 is the mother of the informant. The prosecution strongly relied upon the testimonies of all the witnesses to bring home the charges against the petitioners for offence under Sections 498-A/406/34 of IPC read with Section 4 of the D.P. Act. The learned trial Court vide judgment dated 17.04.2010 acquitted the petitioners of the offence punishable under Section 406/34 of I.P.C. and also for offence punishable under Section 4 of the D.P. Act, however, it convicted the petitioners for offence punishable under Section 498-A/34 of I.P.C. The judgment passed by the learned trial court is bereft of any discussion and a cryptic one. The trial court returned a finding that evidence of torture by the mother-in-law and sister-in-law is well proved beyond reasonable doubt against the informant, without realizing the fact that the mother-in-law and sister-in- law were not even put to trial in the present case. There is no discussion regarding the overt act attributed to the petitioners or regarding any evidence being led by the prosecution to prove the case against the Page 6 of 13 petitioners. The only paragraph in the judgment wherein the learned trial court had discussed about the evidence reads as under: “6. First of all the occurrence witness P.W.4 has not supported the prosecution case. Out of the rest four witnesses where the informant P.W.1, P.W.3 is her sister P.W.5 is her mother and P.W.2 is her relative. Going through the testimony of the informant-victim she has fully supported her F.I.R. version by deposing that after her marriage with Panchanan Gouda his family members assaulted her and tortured her due to which she stayed separately in a rented house with her husband. Later her husband separated from her. Hence her above testimony discloses that she was subjected to torture and cruelty by her-in-law’s family members i.e. the mother-in-law, brother-in-law and sister-in-law and others who are the accused persons in this case. But excepting that there is no concrete evidence is appearing so far as the other offences are concerned such as demand of dowry etc. There is no dispute existing that she has married to accused Panchanan which is also well proved through the evidence of P.Ws.2, 3 and 5. Further no evidence to show the involvement of the accused Panchanan her husband. From the entire prosecution evidence from the witnesses there are ample evidences appearing regarding the dispute between the husband and wife and also with the family members of the husband with the informant. Hence the fact also discloses that the victim who is a alone in the in-law’s family belonging to the accused persons must have been subjected to torture and cruelty as she has admittedly no support in her favour. Further going through the cross- examination of all the witnesses there is nothing which creates doubt on the prosecution story or impleaches their veracity. It is never appearing if the poor rustic victim has made a false case without any ground against her in-law family. Further while the testimony of the victim is cogent and complete and where the remaining witnesses are reliable and trustworthy it requires no further corroboration to prove the alleged offences. Hence in the aforesaid circumstances the evidence of torture by the mother in law, sister-in-law is well proved beyond reasonable doubt against the informant who is a married woman. Hence it constitute an offence subjecting cruelty to a married woman i.e. U/s.498-A of I.P.C. But as no concrete evidence is appearing against the other offences i.e. offence Page 7 of 13 U/s.406 of I.P.C. and Sec.4 of Dowry Prohibition Act against the accused persons. They cannot be held liable for those offences.” Therefore, the trial court has grossly erred in appreciating the evidence on record. 12. The petitioners had challenged the judgment and order of the trial court whereby they were convicted for offence under Section 498-A/34 of I.P.C. and awarded a sentence to undergo S.I. of six months each and to pay a fine of Rs.500/- each and, in default, to undergo S.I. for 15 days more by filing Criminal Appeal No.17 of 2011 before the learned Additional Sessions Judge-cum-Special Judge (Vigilance), Berhampur. The Appellate Court vide judgment dated 09.03.2011 has affirmed the conviction and sentence passed by the court below. Perusal of the judgment of the Appellate Court also indicates that the Appellate Court has not appreciated the evidence rather mechanically dismissed the appeal. The reading of the operative part of the Appellate Court’s judgment would lead to the only inference that the Appellate Court has not appreciated the evidence at all. Paragraph-4 of the Appellate Court judgment is relevant to be mentioned: Page 8 of 13 “4. In this case P.Ws.1 to 4 have fully supported to the prosecution case. Marriage photographs was seized but the learned J.M.F.C., Digapahandi though convicted the accused persons formulating three points for determination of the case has passed the judgment in a very slip-shod manner and has not discussed the evidence in detail and virtually carelessly passed the judgment of conviction. But, taking into account of the evidence of P.Ws.1 to 3 coupled with the F.I.R., the only conclusion is drawn that the accused persons who are the relations of the victim’s husband were torturing the victim and as such the conviction sentence awarded by the learned Magistrate is not to be interfered. 13. The petitioners are challenging both the judgments of the courts below. Perusal of both the judgments of courts below would inspire no confidence to maintain the conviction recorded against the petitioners because both the courts have not at all appreciated the evidence adduced by the prosecution. 14. This Court had called for the trial court record. The evidence was independently gone through by this Court. The informant in her deposition has stated that she had married one Panchanan Badatia by exchanging garland in the presence of about 500 people of the village and relatives. She has stated that she was pregnant before marriage by Panchanan. In her examination-in-chief the only bald statement was made that her mother-in-law, brother-in-law and sister-in-law assaulted and tortured her while she was staying separately from them with her Page 9 of 13 husband in a rented house. Apart from the said bald allegation, there is nothing attributed to the present petitioners. The informant has also not taken the name of the accused persons in her testimony and has not attributed any specific overt act. A bald allegation without any specification cannot be believed to sustain conviction. The informant has categorically stated in her deposition that the family members of her husband started assaulting her after she started staying separately in a rented house. However, in the cross-examination she failed to disclose when and where she had stayed in rented accommodation. She could not also state about the neighbors in the rented house. Even she could not take the name or identify the family members who had tortured her. To a specific question she had answered as under: “I cannot say the name of scriber of the FIR in the present case also. After scribing by one person, I signed on the FIR”. 15. In the absence of any specific allegation against any of the accused persons and failing to prove the F.I.R., it is very difficult to sustain the conviction recorded against the petitioners by the courts below. If the testimony of other witnesses, namely P.Ws.3 and 5 are Page 10 of 13 weighed those who are sister and mother of the informant/victim respectively, it creates further serious doubt in the prosecution case because their testimony is highly contradictory. However, P.W.2- Natabar Badatia who is one of the relatives of the accused had deposed before the court that the present petitioners along with the mother of the victim had tortured the informant. This witness has attributed specific overt act against each of the accused persons. The said witness deposed as under: “The family members of Panchanan protested the matter and abused to Panchanan. On the next day morning Panchanan went away, leaving the informant in his house. Kamala (mother of Panchanan), Gopal Krushna Badtiya (brother of Panchanan) Balakrushna (another brother of Panchanan) Prakash (another brother of Panchanan) dragged to informant and drove away to Bariside. The informant went to her parent house. After 6 months of that occurrence, the informant gave birth a male child. The informant remained in her parent house for 2 years with her son.” Since the informant/victim herself in her testimony has not deposed anything specific against any of the accused persons, the version of the P.W.2 who is a relative of the accused persons cannot be believed. Particularly it has come on record that this witness was not pulling on well with the accused persons. Page 11 of 13 16. The analysis of the entire evidence on record emanating that dispute arises from a matrimonial discord. Panchanan married the informant after impregnating her and the marriage took place only after the intervention of the villagers. There was a panchayat meeting and under the pressure, Panchanan married the informant. When there was consistent misunderstanding between Panchanan and the informant, Panchanan appears to have left the informant and gone to Surat to earn his livelihood. The informant suspecting that Panchanan has already married to someone initiated the criminal proceeding against the accused persons i.e. the in-laws. Surprisingly, Panchanan has been absconding, the mother-in-law has died and the sister-in-law of the informant has not been prosecuted. Therefore, the entire sequence of events and the evidence brought on record to prove the sequence of events create a serious doubt. Except for a general and bald allegation that the present petitioners have tortured the informant, nothing specific has come on record to sustain the charges punishable under Section 498-A of I.P.C. Therefore, the petitioners are entitled to acquittal from the charges under Section 498-A/34 of IPC apart from the acquittal recorded by the courts Page 12 of 13 below for offences punishable under Section 406/34 of IPC and Section 4 of the D.P. Act. 17. Accordingly, the Criminal Revision is allowed and the petitioners are acquitted of the charges under Section 498-A/34 of IPC. Bail bond, if any, furnished by the petitioners stands discharged. ……………… S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 20th June, 2024/Asish Kumar Kar, ADR-cum-Addl. Principal Secretary Signature Not Verified Digitally Signed Signed by: ASISH KUMAR KAR Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Jul-2024 18:30:51 Page 13 of 13