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2003 DIGILAW 706 (ORI)

GOPAL CHANDRA BURDHAN v. STATE OF ORISSA

2003-12-12

A.S.NAIDU

body2003
JUDGMENT : A.S. Naidu, J. - As both these Criminal Revisions arise out of the same judgment dated 24.1.1998 passed by the learned Sessions Judge, Balasore Bhadrak, Balasore in Criminal Appeal No. 14 of 1994 partly confirming the judgment dated 18.4.1994 passed by the J.M.F.C., Balasore in G.R. Case No. 572 of 1990, the same were heard together and are being disposed of by this common judgment. 2. Bereft of unnecessary details, the short facts of the case are as follows: Admittedly Gopal Chandran Burdhan, accused-petitioner No. 1 in Criminal Revision No. 62 of 1998 and opposite party No. 1 in Criminal Revision No. 80 of 1998, had married informant Rashmita Burdhan in accordance with Hindu rites and customs in the year 1980. It is alleged that at the time of marriage, the parents of the informant had given a cash of Rs. 15,000.00, gold ornaments, utensils, etc. as dowry to accused Gopal Chandra Burdhan. A few months after the marriage while the informant was in her matrimonial house, her father-in-law Purna Chandra Burdhan, mother-in-law. Kumudini Burdhan and sister-in-law Bhabani Burdhan, who are respectively Petitioner Nos. 2 and 3 and 4 in Criminal Revision No. 62 of 1998 and opposite party Nos. 2, 3 and 4 in Criminal Revision No. 80 of 1998 started physically assaulting and torturing her demanding a further sum of Rs. 15,000.00 and ornaments as dowry. The said demand having not been fulfilled, the informant was driven out of the matrimonial house for which she lodged the FIR (Ext.2) at Balasore Town Police Station. On the basis of the said FIR, G.R. Case No. 572 of 1990 was registered in the Court of the S.D.J.M., Balasore which was tried by the J.M.F.C., Balasore and the accused persons faced trial for alleged commission of offences under Sections 498-A/34 Indian Penal Code read with Section 4 of the Dowry Prohibition Act. 3. The accused persons pleaded their innocence and denied all the allegations made against them. They also took a specific stand that the behaviour of the informant towards her in-laws was intolerable and not expected of a daughter-in-law. It was alleged that the allegations were all false and frivolous and had been made with a avowed oblique motive to harass the in-laws. 4. On behalf of the prosecution, eight witnesses were examined and three documents were exhibited. It was alleged that the allegations were all false and frivolous and had been made with a avowed oblique motive to harass the in-laws. 4. On behalf of the prosecution, eight witnesses were examined and three documents were exhibited. On behalf of defence, one witness was examined and the certified copy of the plaint in the suit filed by accused Gopal Chandra Burdhan for divorce; of the Court of the Subordinate Judge, Balasore was exhibited. The learned Trial Court relying upon the statements of the informant (P.W.1 ) and her relations came to the conclusion that the informant was subjected to cruelty by her husband, father in-law, mother-in-law and sister-in-law and there was also unlawful demand of dowry. On the basis of such conclusion, the Trial Court held all the accused persons guilty of the charges u/s 498-A/34 Indian Penal Code and Section 4 of the Dowry Prohibition Act and convicting them there under sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 1,000.00 each, in default to undergo simple imprisonment for a further period of six months. No separate sentence was passed for conviction u/s 4 of the Dowry Prohibition Act. The said judgment of the Trial Court was impugned by the accused persons before the learned Sessions Judge, Balasore-Bhadrak, Balasore in Criminal Appeal No. 14, of 1994. After analysing the evidence, both oral and documentary, the appellate Court confirmed the conviction of all the accused persons u/s 498-A/34 Indian Penal Code, but reduced the sentence of simple imprisonment from three months to two months and fine Rs. 1,000.00 to Rs. 200.00 in default to undergo simple imprisonment for a further period of fifteen days and set aside the conviction u/s 4 of the Dowry Prohibition Act and acquitted the accused persons of the said charge. Against the said judgment of the Sessions Judge, the accused persons have preferred Criminal Revision No. 62 of 1998 challenging their conviction u/s 498-A/34Indian Penal Code and the informant has preferred Criminal Revision No. 80 of 1998 challenging the order of acquittal of the accused persons of the charge u/s 4 of the Dowry Prohibition Act as well as the modification of sentence passed by the Trial Court. 5. Mr. 5. Mr. R. Mohapatra, Learned Counsel for the informant-petitioner in Criminal Revision No. 80 of 1998, forcefully submitted that the appellate Court did not properly appreciate the evidence of P.Ws 1,2,3 and 4. It is also submitted that acquittal of the accused persons u/s 4 of Dowry Prohibition Act was arbitrary and contrary to the evidence on record and that the judgment was based on surmises and conjectures and acquittal of the accused persons u/s 4 of the Dowry Prohibition Act is unjust and not sustainable. Dowry torched being a great menance in the present day society, the appellate Court while coming to the conclusion that the informant had been tortured by he in-laws, acted illegally in modifying the sentence passed by the Trial Court. According to Mr. Mohapatra, the judgment of the appellate Court suffers from the vice of non-consideration of the materials on record and it is a fit case where interference by this Court is warranted. 6. Mr. Dhal, Learned Counsel for the accused persons, the Petitioners in Criminal Revision No. 62 of 1998, however forcefully submitted that there is absolutely no independent evidence on the prosecution side to substantiate the allegation regarding commission of offence u/s 498-A/34Indian Penal Code. According to him, the appellate Court on an analysis of the evidence rightly came to the conclusion that prosecution had totally failed to substantiate the charge u/s 4 of the Dowry Prohibition Act and acquitted the accused persons of the said charge. According to Mr. Dhal, while disbelieving the prosecution case with regard to commission of offence u/s 4 of the Dowry Prohibition Act by the accused persons, the appellate Court acted illegally in sustaining the conviction of the accused persons u/s 498-A/34Indian Penal Code. Section 498-A Indian Penal Code was introduced by an amendment with a view to deal with dowry torture. In the absence of any allegation that the accused persons demanded and dowry and after acquitting them of the charge u/s 4 of the Dowry Prohibition Act, the conviction of the accused persons u/s 498-A/34 Indian Penal Code is not sustainable and liable to be set aside. If in fact the informant was tortured by the accused persons as alleged, other provisions of the Indian Penal code were there to take care of such offence. 7. After hearing the Learned Counsel for the parties, I find substance in the contention of Mr. Dhal. If in fact the informant was tortured by the accused persons as alleged, other provisions of the Indian Penal code were there to take care of such offence. 7. After hearing the Learned Counsel for the parties, I find substance in the contention of Mr. Dhal. Even otherwise, it appears that after a few years of blissful married life, dissensions cropped up between the informant and her in laws, thereby causing a dent in the marital tie. From the evidence of D.W.1 it appears that the informant did not have cordial relationship with her in-laws. That apart, Extra, the certified copy of the plaint in T.S. No. 235 of 1990 (1) u/s 13 of the Hindu Marriage Act filed by accused Gopal Chandra Burdhan, husband of the informant, reveals that there was irreparable break-down in the married life. The said suit was filed on 11th of July, 1990 and the FIR in the present case was filed by the wife (informant) on the very next day alleging commission of offences as aforesaid against her husband gopal Chandra Burdhan and in-laws. In the plaint of T.S. No. 235 of 1990 (I) there was an averment that the informant had left her matrimonial house since 25.6.1990. All these facts create a doubt in the mind with regard to the truthfulness of the allegations made in the FIR. I part from the said fact, the prosecution witnesses, namely, P.Ws 1, 2 3 and 4, were closely related to each other and could be nomenclatured as interested witnesses. No independent witness has been examined on the side of prosecution. 8. In course of arguments, a Memo was filed by the Learned Counsel for the accused persons bringing to the notice of the Court that T.S. No. 235 of 1990 (I) filed by accused Gopal Chandra Burdhan has been decreed in the meantime and divorce has been granted servicing the marriage. It is also admitted by the Learned Counsel for the informant, Petitioner in Criminal Revision No. 80 of 1998, that the informant has married for the second time in the meanwhile. All these factors give a feeling that the prosecution case cannot be believed in toto. It is also admitted by the Learned Counsel for the informant, Petitioner in Criminal Revision No. 80 of 1998, that the informant has married for the second time in the meanwhile. All these factors give a feeling that the prosecution case cannot be believed in toto. The appellate Court has thoroughly discussed the evidence in the case and has rightly come to the conclusion that there was no demand for dowry and accordingly acquitted the accused persons of the charge u/s 4 of the Dowry Prohibition Act. 9. The discussion made in the proceeding paragraphs lead to the conclusion that prosecution has not succeeded to prove the charge against the accused persons u/s 498-A/34Indian Penal Code and the allegations in that regard raise a cloud of doubt. In view of the changed circumstances and the discussions made above, I feel that it is a fit case where the judgment of the Appellate Court sustaining the conviction of the accused persons u/s 498-A/34Indian Penal Code and modifying the sentence should be set aside as prosecution has not been able to prove its case beyond all reasonable doubts. 10. In the result, Criminal Revision No. 7, of 1998 is allowed. The order of the Sessions Judge, Balasore-Bhadrak, Balasore in Criminal Appeal No. 14, of 1994 sustaining conviction of the Petitioners u/s 498-A/34 Indian Penal Code and modifying the sentence passed by the Trial Court is set aside. The Petitioners are acquitted of the said charge. Their bail-bonds be discharged. 11. Criminal Revision No. 80 of 1998 is dismissed. Final Result : Dismissed