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2006 DIGILAW 537 (ORI)

Sarba Prasanna Panda v. State of Orissa

2006-07-19

M.M.DAS

body2006
JUDGMENT M. M. DAS, J. — Being aggrieved by the judgment and order dated 17.3.1998 passed in S.T. Case No.247 of 1996 by the learned Ist Addl. Sessions Judge, Cuttack, convicting the appellant, namely, Sarba Prasanna Panda @ Sarbeswar Panda under Sections 498-A/304-B, I.P.C. read with Section 4 of the D.P. Act and sentencing him to undergo R.I. for life under Section 304-B, I.P.C., he has preferred the present appeal. 2. It is revealed from the facts of the case that the deceased Bimala Panda got married to Bhaba Prasanna Panda, the elder brother of the accused-appellant on 10.6.1990. The marriage was solemnized according to Hindu Rites and Customs. Out of their wedlock, the deceased gave birth to a daughter and a son. 3. The prosecution case is that the husband of the de¬ceased was in defence service and was posted at Jammu and Kashmir whereas on the date of occurrence, the deceased and her two chil¬dren were living in their house of Gopinathpur under Salipur Police Station in the district of Cuttack, along with her mother-in-law, namely, Laxmi Dibya and the accused-appellant, namely, Sarba Prasanna Panda. The prosecution alleges that at the time of marriage, a demand for Rs.20,000/- in cash, gold ornaments weighing six tolas and utensils was made as dowry. It is further alleged that the accused-appellant along with his mother made a further demand for a scooter as dowry subsequent to the marriage and as the parents of the deceased could not immediately fulfil the said demand, the accused-appellant along with his mother was torturing the deceased. Allegation is made that on 5.12.1995 the accused-appellant along with his mother caused the death of the deceased Bimala and while they were making preparation to cremate her body, the informant-Pramod Kumar Chaini examined as P.W.1 during trial, arrived there and prevented them from cremating the body of the deceased. Thereafter, he lodged a written report at Salipur Police Station which was duly registered and after due investigation, charge-sheet was submitted by the police against the accused-appellant as well as his mother-Laxmi Dibya (since acquitted). 4. The plea of the accused-appellant was of complete denial. 5. Thereafter, he lodged a written report at Salipur Police Station which was duly registered and after due investigation, charge-sheet was submitted by the police against the accused-appellant as well as his mother-Laxmi Dibya (since acquitted). 4. The plea of the accused-appellant was of complete denial. 5. From the written report which was treated as First Information Report, it is revealed that during marriage, a demand for payment of Rs.20,000/- in cash, six tolas golden ornaments and utensils along with other house-hold articles was made and was fulfilled by the father of the deceased. Subsequently, a demand was made by the accused persons for a scooter as dowry, which could not be fulfilled by the family of the deceased and for that reason, in the absence of the husband of the deceased, she was being physically and mentally tortured, which the inform¬ant heard from the deceased and he, on several occasions, went to the house of the accused-appellant to settle the matter. It is further stated that on the date of occurrence at about 9.00 A.M., the informant being informed by others that his sister has been killed, he went to the spot and found that the accused appellant was making preparation for cremation of the dead body of the deceased. 6. During the course of trial, as many as twelve witnesses were examined from the side of prosecution and two witnesses were also examined from the side of the defence. Out of the witnesses examined by the prosecution, P.W.1 being the brother of the deceased is the informant, P.Ws. 3 and 4 are also two other brothers of the deceased, P.W.2 is the mother of the deceased, P.W.5 is the daughter of the deceased, P.W.6 is the father of the deceased, P.Ws. 9, 10 and 12 are the Investigating Officers who investigated the case, P.W.7 is a witness to the inquest and P.W.8 is the doctor who conducted the post-mortem on the body of the deceased. 7. The defence examined D.W.1, Rabindranath Mohapatra, an Advocate of the Salipur Bar who was admittedly the mediator in the marriage of the deceased and the elder brother of the ac¬cused-appellant and D.W.2 is one Prasanna Kumar Parida. 8. 7. The defence examined D.W.1, Rabindranath Mohapatra, an Advocate of the Salipur Bar who was admittedly the mediator in the marriage of the deceased and the elder brother of the ac¬cused-appellant and D.W.2 is one Prasanna Kumar Parida. 8. P.W.1, who is the informant, while corroborating the F.I.R. specifically stated in paragraph-2 of his Examination-in-chief that Hara Prasanna Panda elder brother of Bhaba Prasanna Panda (husband of the deceased) along with his mother Laxmi Dibya (since acquitted) and accused-appellant made the demand as stated earlier towards dowry at the time of marriage. During cross-examination, this witness (P.W.1) being confronted with the F.I.R. which was lodged by him stated that the F.I.R. does to reveal that the above three persons demanded the dowry. P.W.1 also admitted that there was no list of articles that were given to the accused persons at the time of marriage. He has also stated that the accused-appellant used to bring the deceased in his scooter to their house and also used to take her in his scooter to various other places. Seven months prior to the occur¬rence, the accused-appellant brought the deceased and her chil¬dren to the house of P.W.1 on the occasion of wedding ceremony of the brother of P.W.1. He has denied the suggestion that one Mi¬naketan, a co-villager was called to break open the door of the room inside which the deceased is alleged to have committed suicide by hanging. The said Minaketan has, however, not been examined in the case. Some contradictions have been brought out during the cross-examination of P.W.1 by confronting him with his statement under Section 161 Cr.P.C. made by him before the po¬lice. P.W.1 has admitted that he has not stated before the police that Minaketan told him that he broke open the door and when he came to the house of the accused-appellant, he found the door opened and the deceased lying on the cot. He also admitted to have not stated before the police that Rudra, younger brother of the accused-appellant told him that in the previous night, the accused-appellant assaulted the deceased. In our view, the above omissions admitted by P.W.1 would amount to material con¬tradictions and such statement made for the first time in Court appears to be an outcome of after-thought. 9. In our view, the above omissions admitted by P.W.1 would amount to material con¬tradictions and such statement made for the first time in Court appears to be an outcome of after-thought. 9. P.W.2 is the mother of the deceased who has admitted in her examination-in-chief that Rabindranath Mohapatra (D.W.1) was the mediator of the marriage between the deceased and the elder brother of the accused-appellant. She has stated that a demand for cash of Rs.20,000/-, six varies of gold ornaments, utensils and a scooter towards dowry was made through the said mediator, D.W.1. She has further stated that after marriage, the deceased and her husband led a happy married life. During cross-examination, she has stated that she heard regarding domestic quarrel between the accused-appellant and the deceased which were settled and they pulled on well. She denies to have been examined by the police. P.W.3 is another brother of the deceased who states in his examination-in-chief that demand for cash of Rs.20,000/-, gold ornaments, utensils and other articles along with one scooter was made by his brother-in-law Bhaba Prasanna Panda (husband of the deceased). He speaks of an incident with regard to the appellant giving a push to the deceased four months prior to the occurrence. During cross-examination, P.W.3 states that he had good terms with the accused-appellant and his rela¬tions. He denies to have stated before the Investigating Officer that the accused-appellant and other villagers were taking steps for disposal of the dead body of the deceased. P.W.4 is another brother of the deceased who states that demand for cash of Rs.20,000/-, gold ornaments etc. towards dowry was made by the mediator to the marriage. P.W.5 is the minor daughter of the deceased who on being examined by the trial Court was found to be able to give rational answers and thereafter was allowed to depose in the case. In her examination-in-chief, while stating that once there was a quarrel between her mother (deceased) and the accused-appellant, she has abruptly stated that the accused-appellant killed her mother by means of a rope in the presence of her grand-mother (since acquitted). Being confronted with her previous statement before the police, she admitted that she has not stated before the police that her uncle Sarba (appellant) had killed her mother by means of a rope. Being confronted with her previous statement before the police, she admitted that she has not stated before the police that her uncle Sarba (appellant) had killed her mother by means of a rope. She has also stated that there was regular quarrel between her mother and the accused-appellant and the matter was always settled after which the appellant used to carry her mother, herself and her brother on his scooter to different places. P.W.6 is the father of the deceased. He states in his examination-in-chief that the demand for dowry was made by Hara Prasanna Panda, the appellant and their mother. The demand was with regard to payment of cash of Rs.20,000/- and after marriage, demand for a scooter was made. During cross-examination, P.W.6 admits that one Advocate of Sali¬pur Bar (D.W.1) was the mediator to the marriage. Though he states that in order to pay the demand of cash as dowry, he sold a piece of land to one Dhusasan Dash and another piece of land to one Rama Chandra Bastia, none of the said purchasers have been examined as witnesses by the prosecution. Their examination, in our view, could have proved the fact of payment of cash of Rs.20,000/- as dowry during the marriage of the deceased. P.W.7 was working as an Additional Tahasildar, Salepur who is a witness to the inquest of the dead body. P.W.8 is the doctor who conduct¬ed post-mortem on the body of the deceased and found several minor injuries like bruises on different parts of the body of the deceased and a ligature mark in front of the neck of the de¬ceased. He has opined that the ligature mark and other injuries were ante-mortem in nature and the ligature mark is consistent with hanging. The cause of death, according to P.W.8, was the combined effect of asphyxia and venous congestation resulting from hanging. The other witnesses, i.e., P.Ws. 9, 10 and 12 examined by the prosecution are the Investigating Officers who investigated the case at different periods. 10. The defence has examined two witnesses, out of whom, D.W. 1-Rabindranath Mohapatra was admittedly the mediator of the marriage between the deceased and the elder brother of the ac¬cused-appellant. He in his evidence categorically stated that at the time of marriage, there was absolutely no demand for dowry made by the family of the accused-appellant. 11. 10. The defence has examined two witnesses, out of whom, D.W. 1-Rabindranath Mohapatra was admittedly the mediator of the marriage between the deceased and the elder brother of the ac¬cused-appellant. He in his evidence categorically stated that at the time of marriage, there was absolutely no demand for dowry made by the family of the accused-appellant. 11. On a close scrutiny of the evidence adduced during the trial of the case by both the prosecution witnesses as well as the defence witnesses, sufficient doubt arises with regard to the question of demand of dowry made by the accused-appellant and his relations at the time of marriage of the deceased for which we are unable to uphold the conviction of the accused-appellant under Section 4 of the D.P. Act and under Section 498-A I.P.C. 12. With regard to the charge under Section 304-B I.P.C. though it is true that the death of the deceased has occurred otherwise than under normal circumstances within seven years of marriage, but the prosecution has utterly failed in proving that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband including the appellant in connection with any demand for dowry. As such, the death of the deceased cannot be called to be a “dowry death” as defined in the said Section 304-B I.P.C. In view of the above, we also find the appellant not guilty of the offence under Section 304-B I.P.C. 13. In the result, therefore, the order of conviction and sentence passed on 17.3.1998 against the accused-appellant by the learned trial Court is set aside and the appellant is acquitted. The appellant-Sarba Prasanna Panda be released forthwith if his presence is not required in connection with any other case. The Criminal Appeal is accordingly allowed. S. B. ROY, C.J. I agree. Cri. Appeal allowed.