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2001 DIGILAW 96 (ORI)

Satyabhama Mohapatra v. Ramakanta Padhi

2001-03-07

P.K.TRIPATHY

body2001
ORDER 7.3.2001 - Heard. The informant in S.T. Case No. 39/119 of 1995 has pre¬ferred this revision challenging the order of acquittal dated 26th March, 1996 of the Court of Assistant Sessions Judge-cum-Chief Judicial Magistrate, Balasore where the present opposite parties were the accused persons. 2. The facts stated in the impugned judgment and during the course of argument in short is that Tilatama Padhi (hereinafter referred to as ‘the deceased’) married opposite party No.1 in the month of Baisakha 1994. He died due to poison on 13.1.1995. Informant P.W.2 is the paternal grand mother of the deceased being aunt (father’s brother’s wife) of her father, namely Chin¬tamani Mohapatra (P.W.3). Two reports were lodged before the Police one on 13.1.1995 and the other on 21.3.1995 by P.W.2 relat¬ing to the death of deceased. After completion of routine inves¬tigation, charge-sheet for the offence under Secs. 498-A/304-B/34 I.P.C. was submitted against the opposite party members who faced the trial. Allegations of the prosecution regarding dowry torture resulting dowry death of the deceased, is the crux of the allegations wherein the stand of the opposite parties was that of complete innocence. 3. Prosecution examined eight witnesses at the time of trial. As noted above, P.W.No. 3 is her father and P.W.2 is the paternal grand-mother. P.W. 5 is a cousin and P.W.1 was the scribe of the F.I.R. dated 13.1.1995, P.W.6. is a lady neighbour residing adjoining to the house of the opposite party members and P.W.4 is the Medical Officer who conducted autopsy whereas P.W.8 is one of the Investigating Officers. 4. The substance of the evidence of P.Ws.2, 3 and 5 is that on account of non-payment of Rs. 5,000/- out of Rs. 8,000/- of dowry amount settled at the time of marriage, there was some dissension with torture to the deceased and ultimately, as a result of the refusal of the opposite members to allow the deceased to go to her mother’s house on the festive occasion that resulted as the immediate outcome in her death due to poision. Evidence of P.W.6 the neighbour of the opposite parties is that there was no dis¬pute between the deceased on the one side, her husband and the inlaws on the other and there was no torture on her at all. From the evidence of P.W.4 it reveals about the death due to poison without specifically mentioning if it was homicidal or suicidal. From the evidence of P.W.4 it reveals about the death due to poison without specifically mentioning if it was homicidal or suicidal. The evidence of P.W.8 is relevant so far as the matter relating to confronting the contradictions in the evidence of P.Ws. 2,3 and 5. 5. Learned Assistant Sessions Judge on assessment of evi¬dence or record, recorded the following findings :- (i) The story as advanced in the course of trial regarding demand of dowry and torture to the deceased on account thereof is an after thought development at the stag of trial inasmuch as no such allegation was levelled against the opposite party members either in the F.I.R. or in the statement of said P.Ws. recorded under Sec. 161, Cr.P.C. (ii) P.W.6 the neighbour of the deceased and accused persons has unshakingly deposed in Court about no torture on the deceased by her husband on inlaws. In view of the aforesaid glaring evi¬dence, the evidence of P.Ws. 2 and 3 was not credible. The above were the principal reason to grant order of acquittal in favour of the opposite parties which is impugned in this revision. 6. Learned counsel for the petitioner has made a strenuous effort to convince this Court that the approach of the trial Court is not only illegal but also in utter failure to discharge the onerous duty of punishing the wrong doer. In that context, he argues that as per the ingredients of provisions under Secs. 498-A and 304-B/34 ,I.P.C. when the death of the deceased occurred not under normal circumstance and it occurred within a period of seven years of her marriage, learned Assistant Sessions Judge should have properly read the evidence on record relating to the factum of cruelty and harassment to which she was subjected and should have held that the offence under Sec. 304-B, I.P.C. is well made out. In that connection, he places reliance on the case of Upendra Singh and 3 others v. The State, 1973 C.L.R. 612. He argues that the evidence in Court should be given more credibility than the statement recorded by the Investigating Officer and in support of that he relies on the case of Raghunath Sahu v. The State, re¬ported in Vol. 32 (1990) OJD, 75 (Criminal). He argues that the evidence in Court should be given more credibility than the statement recorded by the Investigating Officer and in support of that he relies on the case of Raghunath Sahu v. The State, re¬ported in Vol. 32 (1990) OJD, 75 (Criminal). Learned counsel for the petitioner also refers to and relies on the decision of K. Chinnaswamy Reddy v. State of Andhra Pradesh and another, A.I.R. 1962 S.C. 1788, to highlight the duty of the revisional Court. 7. The State of Orissa has not been impleaded as a party to the proceeding and the opposite party raises objection to that. Hence, learned Standing Counsel was requested to go through the record and to address this Court. Mr. A.K.Mishra, learned Stand¬ing Counsel, sincerely places the facts and evidence on record and contends that the finding recorded in the impugned judgment that there is contradiction in the evidence of P.W.2 regarding demand and torture on account of non-payment is wrong inasmuch as P.W.2 had made necessary statement and that is available in his statement recorded under Sec. 161, Cr.P.C. 8. Learned counsel for the accused/opposite party advances argument not only supporting the impugned finding but also citing a good number of decisions in that respect in support of his argument. A catalogueing of those decisions is not necessary in view of the finding recorded hereinafter. 9. A case is decided on the basis of the fact which comes in the shape of evidence from the stage of investigation till the stage of trial and solely on the basis of provision of law. If law is the backbone of a case the fact and the evidence and the linked circumstances are its flesh, blood and other senses run¬ning the life force. Neither of the two in exclusion of the other can constitute a complete body. In the present case, as being highlighted by learned counsel for the petitioner, two out of three ingredients to constitute the offence under Sec. 304-B, I.P.C. is the undisputed fact estab¬lished on record. Those two ingredients are (1) death of the deceased occurred otherwise than under normal circumstances and (ii) she died within seven years of her marriage. In the present case, as being highlighted by learned counsel for the petitioner, two out of three ingredients to constitute the offence under Sec. 304-B, I.P.C. is the undisputed fact estab¬lished on record. Those two ingredients are (1) death of the deceased occurred otherwise than under normal circumstances and (ii) she died within seven years of her marriage. So far as the third ingredient that soon before her death she was subjected to cruel¬ty or harassment by her husband and his relatives for or in connection with demand of dowry, according to learned counsel for the petitioner, was proved on record by tendering requisite evidence during the trial. Accordingly relying on the above citation he argues to set aside the order of acquittal. 10. It may be in one sentence that the decisions relied upon by the petitioner can hardly be made applicable to the facts and circumstances of the present case because of the distinguishing facts involved. On perusal of the evidence which was adduced during the trial and the statements of the said witnesses which had been recorded under Sec. 161, Cr.P.C. it appears that allegation of demand of dowry or torture on that account was not stated in the statement of P.Ws. 2,3 and 5. In that respect, learned Stand¬ing Counsel invited attention of this Court to the statement under Sec. 161, Cr.P.C. of P.W.3 and states that in his statement P.W.3 had categorically stated about torture on account of non-payment of dowry. The said statement is hard to be rejected inasmuch as P.W.3 has not stated anything having any knowledge about any ill-treatment or torture on the deceased. On the other hand he made a statement that he heard such a complaint. Such statement suffers the stigma of hearsay evidence and in the absence of corroboration that statement cannot be accepted. In that respect, the evidence of P.W.2 runs consistent to evidence of P.W.3 re¬garding ill-treatment and cruelty on the deceased for non-payment of balance dowry money but that evidence is also inconsistent with her statement recorded under Sec. 161, Cr.P.C. While not disputing existence of such contradiction on material particu¬lars i.e, regarding ill-treating the deceased, Mr. In that respect, the evidence of P.W.2 runs consistent to evidence of P.W.3 re¬garding ill-treatment and cruelty on the deceased for non-payment of balance dowry money but that evidence is also inconsistent with her statement recorded under Sec. 161, Cr.P.C. While not disputing existence of such contradiction on material particu¬lars i.e, regarding ill-treating the deceased, Mr. D. Nayak, also argues that incorrect recording of statements by the investigating officer cannot be the be all and end all of the matter and there¬fore absence of such statements be ignored and substantive evi¬dence tendered during trial be accepted. 11. The stand of the defence was clear from the commencement of recording of prosecution evidence that they were banking upon, absence of allegation in the statement under Sec. 161,Cr.P.C. regarding ill-treatment and cruelty on the deceased on account of non-payment of any dowry amount. At least it became clear to the prosecution from the stage when P.W.2 was cross-examined. A set of such statements (recorded under Sec. 161, Cr.P.C.) was available to the learned prosecution before examin¬ing the prosecution witnesses. At no stage of the trial either the witnesses (P.Ws. 2,3 and 5) or the learned Prosecutor ever stated or proved that their statement was not correctly recorded by the Investigating Officer with mala fide reasons or otherwise. When the Investigating Officer was examined as P.W. No. 8 at that stage also no question was put to him by the prosecution at¬tributing the allegation of incorrect recording of such state¬ments or recording the same wrongly with a purpose. Under such circumstances, the argument of the petitioner to ignore the contradictions is not entertainable. It may be noted here that there is complete absence of allegation of a biased investiga¬tion by the Investigating Officer with a view to favour the accused persons or not to favour the informant. The statements recorded under Sec. 161, Cr.P.C. which was confronted to the witnesses in course of trial relating to the contradiction on the vital ingredients of the offence regarding absence of allegation of ill-treatment or cruelty to the deceased on account of non-payment of dowry amount cannot be ignored from consideration because that is a glaring contradiction. 12. The statements recorded under Sec. 161, Cr.P.C. which was confronted to the witnesses in course of trial relating to the contradiction on the vital ingredients of the offence regarding absence of allegation of ill-treatment or cruelty to the deceased on account of non-payment of dowry amount cannot be ignored from consideration because that is a glaring contradiction. 12. It appears that P.W.No. 6, whose evidence on record does not support the theory of ill-treatment or cruelty on the deceased by her husband or inlaws is a piece of evidence which was tendered by the prosecution notwithstanding the evidence of P.Ws. 2, 3 and 5 regarding the ill-treatment and cruelty. In their entire evidence, P.Ws. 2, 3 and 5 did not state of any direct knowledge of the nature of ill-treatment and the manner of ill-treatment or torture. They also did not state what were those occasions vide days or dates when the deceased was ill-treated by her husband or the inlaws. Each of them have made omnibus statement in course of their examination-in-chief that the deceased was subjected to ill-treatment and cruelty for non-payment of the balance amount of Rs. 5,000/- as promised to be paid as dowry. The aforesaid evidence of P.Ws. 2,3 and 5 when stands in that manner, the evidence of P.W.No. 6 who is an adja¬cent neighbour and a lady stands in a better footing inasmuch as there is no allegation against her that she is a gained over witness. Prosecution has not confronted to her any statement given by her in her statement under Sec. 161, Cr.P.C. to show that she turned hostile at the stage of recording of evidence. Learned Prosecutor even did not allege that she was hostile to the prosecution. In other words, her evidence in examination-in-chief that there was no ill-treatment or cruelty was mutely accepted by the prosecution as a part of its case. If that be so, is it permissible for the prosecution or even for the informant, to advance a counter argument now without impeaching credibility of P.W.No. 6. In other words, her evidence in examination-in-chief that there was no ill-treatment or cruelty was mutely accepted by the prosecution as a part of its case. If that be so, is it permissible for the prosecution or even for the informant, to advance a counter argument now without impeaching credibility of P.W.No. 6. The trial Court, therefore, was right in its approach in making a systematic appreciation of all the evidence in a proper manner to reject the evidence of P.Ws.2,3 and 5 regarding the demand of dowry of ill-treatment, on the deceased by the accused persons as a piece of subsequent developed version at the time of trial and at the same time he found no fault with the accused persons in view of the evidence of P.W. No. 6. The aforesaid view of the trial Court being neither unreasonable nor illegal or perverse, this Court while exercising the revisional jurisdiction cannot reject that reasoning to upset the order of acquittal. For the reasons stated above, this Court does not find any merit in the revision application to interfere with the impugned order of acquittal. Hence the Criminal Revision stands dismissed. Appeal dismissed.