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2007 DIGILAW 336 (ORI)

State of Orissa v. Fakir Kar and three

2007-05-09

P.K.TRIPATHY, R.N.BISWAL

body2007
JUDGMENT Heard argument, hearing is concluded and the judgment is as follows. 2. Respondents were the four out of eight accused persons who faced sessions trial in the Court of Sessions Judge, Puri in S.T. No.154 of 1986. In that trial, charge was framed against the accused under Section 302/34, I.P.C. read with Section 498-A, 201, I.P.C. and Section 4 of the Dowry Prohibition Act. At the same time, charge for the offence under Section 201, I.P.C. was framed against the and four other accused persons. After recording prosecution evidence, those four accused persons charged under Section 201, I.P.C. were acquitted under Section 232, Cr.P.C. Learned Sessions Judge after considering the prose¬cution case and the defence version, also granted the order of acquittal under Section 235, Cr.P.C. in favour of the respondents as per the impugned judgment delivered on 02.03.1987. 3. Prosecution case, as it reveals from the Lower Court’s Record, is that Mami (the deceased) married to accused Duryodhan. Accused Fakir is his father and accused Prafulla and Nayan are his brothers. The marriage between Mami and Duryodhan was solem¬nized on 11.03.1985 and the dead body of Mami was cremated in the night between 29th/30th January, 1986. It is alleged by the prosecution that at the time of marriage, there was demand of Rs.5,000/- (five thousand) towards dowry. That amount was paid in three instalments towards ‘Puani Saja’. After receipt of that money, accused persons made a greedy demand of ‘Puani Saja’ adjusting the amount paid towards the demand of the son-in-law (accused Duryodhan). On account of non-payment of the same, there was ill-treatment and cruelty on the deceased and thereafter her dead body was put to fire in the night between 29th/30th January, 1986. Accused persons have denied to that allegation and have suggested to the witnesses in course of cross-examination that deceased suffered a natural death and keeping in view the Hindu customs in a Brahmin family, her dead body was cremated after due intimation to the friends and relatives in the village in as much as the cremation of the dead body was not to be delayed. They also took the plea of no demand of dowry or ill-treatment on account of that. 4. To substantiate the charge, prosecution examined 18 witnesses and relied on Exts. 1 to 3. In the defence, accused declined to adduce any oral or documentary evidence. They also took the plea of no demand of dowry or ill-treatment on account of that. 4. To substantiate the charge, prosecution examined 18 witnesses and relied on Exts. 1 to 3. In the defence, accused declined to adduce any oral or documentary evidence. Amongst the witnesses examined by the prosecution, P.W.1 is the father and P.W.7 is the step-mother of the deceased. P.Ws.8 and 15 are the paternal uncles, P.W.10 is an aunt (wife of a paternal uncle) and P.Ws.11 and 12 are the agnatic brothers of the deceased. P.Ws. 16, 17 and 18 are the police officers associated with the enquiry or investigation on the death of the deceased. Rest of the wit¬nesses examined by the prosecution are the co-villagers of the accused persons. 5. Deceased being burnt to ashes, there is non-availability of post-mortem report. The Investigating Agency did not seize anything from the for the purpose of scientific inves¬tigation by the F.M.T. Department and, therefore, to substantiate the charge under Section 302, I.P.C. relating to homicidal death, there is no evidence on record except the oral evidence. Even then death of the deceased being within seven years from the date of marriage and there being allegation of torture in furtherance of demand of dowry, the case could be considered for the offence under Section 304-B, I.P.C. if there is some evidence to support such a charge. In fact, on the facts and circumstances of the case, the trial Court should not have avoided to frame charge under Section 304-B, I.P.C. 6. Evidence available on record are sharply divided. The witnesses from the village of the accused persons have declined to support the prosecution either on the allegation of ill-treatment or cruelty or on the allegation of homicidal death of the deceased. On the other hand, the above noted witnesses, who are closely related to the deceased from her paternal side, have made statements about ill-treatment and cruelty on account of non-payment of ‘Puani Saja’. Learned Sessions Judge found some contradictions in respect of the demand and payment of ‘Puani Saja’ in instalments, the period which the deceased spent in her parents’ house on her visits on couple of occasions. Trial Court thus disbelieved the prosecution case by entertaining doubt on the truthfulness of such witnesses. Learned Sessions Judge found some contradictions in respect of the demand and payment of ‘Puani Saja’ in instalments, the period which the deceased spent in her parents’ house on her visits on couple of occasions. Trial Court thus disbelieved the prosecution case by entertaining doubt on the truthfulness of such witnesses. After going through the evidence on record, we find that all such witnesses have made general allegations of ill-treatment and cruelty without giving any specific instance of any particular date. Of course, the father of the deceased as well as the cousin brothers have stated about some specific instance expressed by each of them, but that part of the evidence also was not found to be convincing for lack of corroboration. Under such circumstance, learned Sessions Judge granted benefit of doubt to the accused persons and acquitted them.ggg 7. After going through the impugned judgment, evidence on record and hearing argument from the parties, we find that there is nothing to interfere with the impugned order of acquittal. Thus the Government Appeal is dismissed. Appeal dismissed.