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2002 DIGILAW 31 (ORI)

DILIP ALIAS BIDYADHAR PRADHAN v. STATE OF ORISSA

2002-01-16

BASUDEVA PANIGRAHI, M.PAPANNA

body2002
B. PANIGRAHI, J. ( 1 ) CONVICTION and sentence passed by the learned Second Additional Sessions Judge, Cuttack under Sections 498-A and 304-B (I), I. P. C. has been assailed in this appeal. ( 2 ) THE skeletal picture of the prosecution story as unravelled during trial is as follows: the appellant No. 1 was the husband of the deceased Narmada Pradhan and their marriage was undisputedly solemnised sometimes in the month of Jestha, 1993. It is the further case of the prosecution that two months preceding the marriage, there was a demand for Bullet Motor Cycle as dowry by appellant No. 2 Nakul alias Makar Pradhan on the father of the deceased, Udhab Behera. But Udhab Behera could not immediately comply with it, therefore, Makar lessened his demand to Rs. 11,000. 00 cash, over and above, a wrist watch, a gold ring and a radio set in lieu of a Bullet Motor Cycle to which Udhab had agreed. At the time of marriage, the father of the victim paid Rs. 8,000. 00 cash besides a wrist watch, gold ring and a radio. The balance amount of Rs. 3,000. 00 could not immediately be paid to Makar. But, however, Udhab agreed to pay the same sometime later. But unfortunately due to severe financial stringency, the balance amount of Rs. 3,000. 00 could not be paid as a reason whereof there was lickering and misunderstanding between the two families and quarrel ensued in the matrimonial house of the deceased. It is alleged that the deceased Narmada was subjected to torture and cruelty for the demand of dowry. Two days preceding the death, the deceased Narmada had sent a message to PW 1 (illatom son-in-law) of Udhab Behera. But by the time PW-1 reached the matrimonial house of the deceased, he learnt that Narmada had died by taking poison, and thereafter her deadbody was cremated. ( 3 ) PW-1 Ajodhya Behera lodged a report at Manabandha Outpost and on 11-12-1994 subsequently a case was registered as Baramba Police Station. During investigation the dowry articles presented to Narmada (deceased) were seized and the appellants were arrested and finally the charge sheet was submitted after completion of the investigation. The case was committed to the Court of Session and the learned Addl. During investigation the dowry articles presented to Narmada (deceased) were seized and the appellants were arrested and finally the charge sheet was submitted after completion of the investigation. The case was committed to the Court of Session and the learned Addl. Sessions Judge on discussion of oral and documentary evidence convicted the appellants under Sections 304-B and 498-A of the Indian Penal Code read with Sections 3 and 4 of the Dowry Prohibition Act. ( 4 ) THE defence plea was one of complete denial to the alleged demand of dowry of any forture meted out to the deceased. They took the plea that after the marriage, Narmada never expressed her willingness to stay in the matrimonial house and was pressurising her husband appellant Dilip to take her to Cuttack. On some occasions Narmada had also come with her husband to Cuttack. But due to some financial problem she went back to her village. She was never happy and always suffering from morose and depression. On the fateful night, she was having chest pain as a reason whereof she met normal death. Though the message was sent to PW 2, but in view of long distance between the appellants village and that of PW 1, caste people raised objection to keep the dead body for a longer time and for that reason the appellants had to cremate the dead body before arrival of PW1. ( 5 ) PROSECUTION in order to sustain the conviction and sentence against the appellants had examined 11 witnesses PW 1 is said to be the star witness of the prosecution who claimed to be the illatom son-in-law of Udhab, PW 2 the priest who proved about the demand of cash of Rs. 8,000. 00 by appellant Makar at the marriage altar. PW 3, was the mediator in whose presence the demand of dowry was settled. PWs 4 and 5 are the rice sellers through whom the deceased alleged to have sent information to PW 1 as regards her cruelty committed by the appellants. PW 8 had claimed to be present at the time of execution of Panchanama vide Ext. 1 at the time of return of the dowry articles to PW 1. PW 7 also speaks about the demand of dowry by the appellant-Makar. PWs-8 to 10 claimed to be the mortgage of some land at the time of marriage of Narmada. PW 8 had claimed to be present at the time of execution of Panchanama vide Ext. 1 at the time of return of the dowry articles to PW 1. PW 7 also speaks about the demand of dowry by the appellant-Makar. PWs-8 to 10 claimed to be the mortgage of some land at the time of marriage of Narmada. PW 11 is the Investigating Officer in this case. ( 6 ) THE defence had examined one witness through whom an attempt was made to prove that the information was sent to PW 1 through Manguli Khatua. ( 7 ) THERE is no eye witness in this case and the prosecution has relied only on circumstantial evidence. ( 8 ) IN case of dowry death, it is not expected that the factum of death can be proved by any direct evidence since occurrence is taking place inside the house of the in laws and one cannot expect any independent witness or an eye witness to remain present at the time of incident. The prosecution, therefore, depends upon the circumstancial evidence in order to bring home the charge against the accused persons. The motive for causing death can at best be proved from the chain of circumstances. In this particular case, the plea of the husband, appellant No. 1 is that on the date of incident he was away from the village and was at Cuttack being engaged as a driver in a private vehicle. ( 9 ) BEFORE appreciating the defence plea let us now examine the prosecution evidence to find out as to how far it has proved the offence against the appellants. PW-1 who was an illatom son-in-law of Udhab who has stated that two months prior to the marriage, the appellant Makar came to the house of Udhab and negotiated with regard to payment of dowry for the marriage of his son. It has also been stated that 15 days prior to the death of the deceased-Narmada, the appellant-Dilip (husband of deceased) came to his father-in-law's house and declared that he would not take Narmada back to his house unless a cycle is given to him. While ascertaining the truth or otherwise of the aforesaid statement, we find from the statement of Investigating Officer (P. W. 11) that such a statement was never made before him by P. W. 1 during investigation. While ascertaining the truth or otherwise of the aforesaid statement, we find from the statement of Investigating Officer (P. W. 11) that such a statement was never made before him by P. W. 1 during investigation. Therefore, it can be safely concluded that it was only an after thought and subsequently pleaded in course of trial. Thus the statement implicating the deceased's-husband Dilip does not appear to be truthful, credible and trustworthy. We also find no sufficient evidence to implicate appellant-Kamala, the mother-in-law of the deceased. ( 10 ) LEARNED counsel appearing for the appellants invited our attention that there was delay of about three days in lodging the F. I. R. at the Police Station. But we found it to be unworthy of credence inasmuch as in some cases information is being lodged after the informant gets full information about the incident. P. W. 1 has clearly stated that he came to the village immediately after he was informed by a rice seller that Narmada was subjected to torture and harassment and on such information which he came to the house of the appellants, he found Narmada was already cremated. He was thereafter pressurised to sign on an agreement made in Panchnama vide Ext. 1. In this criminal case, it does not warrant us to discuss any detail regarding the credibility of the Panchnama inasmuch as the dowry articles had already been returned in terms of the Panchnama. Suffice it to say that after P. W. 1 being informed about the torture alleged to have been made by the appellants he came and found that Narmada had expired and was cremated by the appellants. ( 11 ) NOW coming to the evidence of P. W. 2, it appears that P. W. 2 deposed that there was a demand of Rs. 3,000. 00 as dowry from Udhab for the marriage with the son of accused-Makar. There has been practically no cross-examination on this aspect by the defence. Similarly we found that P. W. 3 has deposed that there was a demand of dowry of Rs. 11,000. 00 by the appellant-Makar and his testimony has not been shaken in the cross-examination. The learned Additional Government Advocate has brought to our notice from the statement of P. W. 4 about the torture alleged to have been made by the husband and in-laws of the deceased. 11,000. 00 by the appellant-Makar and his testimony has not been shaken in the cross-examination. The learned Additional Government Advocate has brought to our notice from the statement of P. W. 4 about the torture alleged to have been made by the husband and in-laws of the deceased. We do not find that such torture even assuming be true, was preceding to this incident. Therefore, we are unable to connect the fact of torture which might have taken place long before the commission of offence by the appellants. ( 12 ) FROM the evidence of P. Ws. 4 and 5 who are the rice sellers through whom the information was alleged to have been sent to P. W. 1 to the effect that the deceased was subjected to torture, it is not clear as to who caused harassment and torture to the deceased. From the evidence adduced by other witnesses, we find that it was the appellant No. 2-Makar who tortured and harassed Narmada for not fulfilling the dowry demand. The statement that Narmada died out of chest pain, has not been proved in this case nor was any attempt made to lodge information at the Police Station immediately after her death. Therefore, the probability of the defence plea that Narmada met with unnatural death out of chest pain cannot be thrown out. ( 13 ) IN the aforesaid circumstances, we are, therefore, constrained to record an order of acquittal so far as appellants-Dilip and Kamala are concerned under Ss. 304-B (1) read with S. 498-A of the Indian Penal Code and Ss. 3 and 4 of the Dowry Prohibition Act. If the appellants are in custody, they be set at liberty forthwith. ( 14 ) IT has been contended that the appellant-Makar is an old man about 60 years of age and the learned Additional Sessions Judge has unreasonably punished him and a maximum sentence of imprisonment for life. We find that since the other two appellants-Dilip and Kamala have been acquitted under S. 304-B (1) read with S. 498-A of the Indian Penal Code and Ss. 3 and 4 of the Dowry Prohibition Act. We modify the sentence of appellant-Makar to undergo R. I. for 10 years and to pay a fine of Rs. 1,000. We find that since the other two appellants-Dilip and Kamala have been acquitted under S. 304-B (1) read with S. 498-A of the Indian Penal Code and Ss. 3 and 4 of the Dowry Prohibition Act. We modify the sentence of appellant-Makar to undergo R. I. for 10 years and to pay a fine of Rs. 1,000. 00 in default to undergo R. I. for a further period of six months instead of imprisonment to life which will meet the ends of justice. ( 15 ) IN the result, the appeal is partly allowed. The conviction and sentence of appellants'-Dilip and Kamala are set aside and they be set at liberty forthwith. The order of conviction against Makar-appellant No. 2 is modified, but the sentence of imprisonment for life is modified and reduced to undergo R. I. for 10 years and to pay a fine of Rs. 1,000. 00 in default to undergo R. I. for further period of six months. ( 16 ) M. PAPANNA, J. I agree. Order accordingly.