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2007 DIGILAW 655 (ORI)

STATE OF ORISSA v. SACHINDRA KUMAR BEHERA

2007-08-30

R.N.BISWAL

body2007
( 1 ) THIS appeal has been preferred by the State of Orissa against the judgment and order dated 1-10-1992 passed by the Assistant Sessions Judge, Anandpur in S. T. Case No. 19/49 of 1992 wherein he acquitted the accused persons of the charge under Sections 304-B/498-A of IPC and Section 4 of D. P. Act. ( 2 ) SHORN of unnecessary details the prosecution case is that on 12-7-1991 accused sachindra Behera led deceased Manorama to the altar in accordance with Hindu rites and their caste custom. The father of the deceased, in keeping with his financial capacity presented some household articles and ornaments to the deceased before the marriage alter. Accused Sachindra Behera demanded a gold chain at the time of pakhalkhia and when it could not be complied with skirmishes erupted between the couple. There was also illicit relationship between accused Sachindra and accused snehalata Behera, the wife of his brother who added fuel to the fire in their strained relationship. He, along with the other accused persons subjected Manorama to cruelty. On 10-1-1992 manorama died otherwise than under normal circumstance and the Medical Officer of Salani C. H. C. (P. W. 11) declared her brought dead. On the next date P. W. 11 reported the matter to the O. I. C. Nandipada P. S. (P. W. 14), who registered U. D. Case No. 1 of 1992 and enquired into the matter in course of enquiry, on 11-1-1992 he held inquest over the dead body and sent it to the morgue for autopsy. On the same date Satrughna Patra, father of the deceased (P. W. 1) lodged a written report to P. W. 14. As the allegation contained in the FIR revealed a cognizable case. P. W. 14 registered it under Sections 304-B/498-A/34 of IPC read with Section 4 of D. P. Act and took up investigation. In course of investigation he examined the witnesses, seized some vomiting substance from the back side of the chow shed and some D. D. T. powder from the kitchen of the accused persons. He also seized one mat, one pillow and one quilt from the bed room of the deceased. Furthermore, he seized the washing substance of a grinding stone, one oleander seed and the wearing apparel of the deceased. He also seized one mat, one pillow and one quilt from the bed room of the deceased. Furthermore, he seized the washing substance of a grinding stone, one oleander seed and the wearing apparel of the deceased. On 21-3-1992 he made over charge of investigation to Inspector of Police H. A. and D. O. Orissa, cuttack (P. W. 13) who after completion of investigation, submitted charge-sheet under sections 304-B/498-A/34 of IPC read with section 4 of D. P. Act against the accused persons, whereunder they faced trial. ( 3 ) THE accused persons denied to have made any demand of gold chain and the alleged subsequent ill treatment to the deceased for non-supply of the same. They also denied the allegation of illicit relationship between accused Sachindra and accused snehalata. It is the plea of the accused persons, that on 10-1-1992 evening, the deceased started vomiting and when she was coming out of her bedroom to vomit further, she stumbled over the doorframe and fell down on the ground with force immediately while she was being taken to Salania C. H. C. she expired on the way. ( 4 ) IN order to establish its case prosecution examined as many as 14 witnesses as against 4 witnesses examined on behalf of the defence. After assessing the evidence on record the trial Court found the accused persons not guilty of any of the charges and accordingly acquitted them. Being aggrieved with the said order of acquittal, State of orissa has preferred the present appeal, as stated earlier. ( 5 ) MR. A. K. Misra, learned Standing counsel appearing for the appellant submitted that as found from the evidence of the doctor P. W. 12 death of the deceased occurred otherwise than under normal circumstance. There is no denying of the fact that the deceased died within seven years of her marriage. There is also material to show that the deceased was subjected to cruelty by the accused-respondents for non-fulfilment of their demand of a gold chain towards dowry. So in view of the provision contained under section 113-B of the Evidence Act, it would be presumed that the accused-Respondents were guilty under Section 304-B of IPC. This presumption having not been rebutted by the defence the trial Court ought to have convicted the accused-Respondents under section 304-B of IPC read with Section 4 of D. P. Act. So in view of the provision contained under section 113-B of the Evidence Act, it would be presumed that the accused-Respondents were guilty under Section 304-B of IPC. This presumption having not been rebutted by the defence the trial Court ought to have convicted the accused-Respondents under section 304-B of IPC read with Section 4 of D. P. Act. Per contra learned counsel for the accused-respondents submitted that there was no evidence whatsoever to show that any of the accused-Respondents demanded any dowry much less a gold chain. The cousin of the deceased volunteered to give accused-Respondent Sachindra Behera a gold chain on the occasion of Pakhalkhia, (a customary ceremony observed in the locality ). There is also no evidence on record to show that soon before her death the deceased was subjected to cruelty. So the trial Court rightly acquitted the accused-Respondents of the charge under Section 304-B of IPC and Section 4 of D. P. Act. ( 6 ) TO attract the offence under Section 304-B of IPC the prosecution has to prove: (a) that the death of a woman was caused by burns or otherwise than under normal circumstance; (b) that such death had occurred within seven years of her marriage; (c) that she must have been subjected to cruelty or harassment by her husband or any relative of her husband soon before her death; (d) that such cruelty or harassment should be for or in connection with demand for dowry. In the case at hand, the accused Respondents do not challenge the finding of the trial court that the death of the deceased occurred otherwise than under normal circumstance and that she died within seven years of her marriage. But they fervently challenged the allegation that soon before her death she was subjected to cruelty or harassment by them for non-fulfilment of their demand of dowry. Admittedly accused-Respondent No. 1 was the husband of deceased respondent Nos. 3 and 4 are the parents of respondent No. 1 and Respondent No. 2 is the wife of the brother of Respondent No. 1. So Respondent Nos. 2 to 4 are the close relatives of Respondent No. 1. Admittedly accused-Respondent No. 1 was the husband of deceased respondent Nos. 3 and 4 are the parents of respondent No. 1 and Respondent No. 2 is the wife of the brother of Respondent No. 1. So Respondent Nos. 2 to 4 are the close relatives of Respondent No. 1. On perusal of the evidence of father of the deceased (P. W. 1) it is found that he had presented gold ornaments, one Bajaj Scooter and other household articles to the deceased Manorama of his own accord at the time of her marriage. On the next day of the marriage at the time of Pakhalkhia, accused-Respondent sachindra demanded a gold chain. So his nephew (P. W. 1) Ratnakar assured him to deliver the same latter. During cross-examination it was elicited from P. W. 1 that when accused-Respondent Sachindra did not take his meal on the occasion of Pakhalkhia, ratnakar volunteered to give a gold chain after some time. On perusal of the evidence of Ratnakar Patra (P. W. 2), it is found that at the time of Pakhalkhia accused Sachindra demanded a gold chain and threatened to observe fasting unless it was given. So he assured to deliver a gold chain to him latter. But he had not stated before the I. O. that accused-Respondent Sachindra demanded a gold chain at the time of Pakhalkhia and threatened to observe fasting, unless it was given. So the evidence of P. W. 2 that accused-Respondent demanded a gold chain and threatened to observe fasting in case it is not given, cannot be relied upon. There is no other reliable evidence to show that any other accused-Respondent demanded any dowry much less a gold chain as such the trial Court rightly held that there was no demand of gold chain on behalf of the accused-Respondents. In absence of any reliable evidence with regard to demand of j dowry, subjecting the deceased to cruelty or harassment by the accused-respondent for non-fulfilments of any demand of dowry does not arise. There is also no specific evidence that the deceased was being subjected to cruelty or harassment as would be discussed latter. In absence of any reliable evidence with regard to demand of j dowry, subjecting the deceased to cruelty or harassment by the accused-respondent for non-fulfilments of any demand of dowry does not arise. There is also no specific evidence that the deceased was being subjected to cruelty or harassment as would be discussed latter. ( 7 ) AT this stage, it would be profitable to quote section 113b of the Evidence Act which reads as follows : "when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. " I have already held earlier, so also the trial court that prosecution has failed to establish any demand of dowry by the accused-respondents. As would be discussed by and by, it also failed to prove that soon before her death the deceased was subjected to cruelty. So the presumption under section 113-B of the Evidence Act cannot come to the aid of prosecution. The trial Court rightly acquitted the accused-Respondents of the charge under Section 304-B of IPC and Section 4 of D. P. Act. ( 8 ) WITH regard to the offence under Section 493-A of IPC, learned Addl. Standing counsel contended that there was sufficient evidence to convict the accused-Respondents thereunder. But without proper appreciation of the same, it erroneously acquitted them. Section 498-A of IPC reads as follows :- "498-A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Section 498-A of IPC reads as follows :- "498-A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. " explanation.- For the purposes of this section, "cruelty" means - (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet demand. " The essential ingredients of Section 498-A of IPC are : (1) A woman was married; (2) She was subject ed to cruelty. (3) Such cruelty consisted in - (i) any wilful conduct as was likely to drive such woman to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical; (ii) harm to such woman with a view to coercing her to meet unlawful demand for property or valuable security or on account of failure of such woman or any of her relations to meet the unlawful demand; (iii) the woman was subjected to such cruelty by her husband or any relation of her husband. ( 9 ) THERE is no evidence with regard to the specific instance of subjecting the deceased to cruelty by any of the accused-Respondents. It transpires from the evidence ofp. Ws. 2, 3, 6, 7 and 8 that on 29-12-1991 while they had been to the house of the accused-Respondents the deceased expressed before them that she was being ill-treated by the accused-Respondents except accused-Respondent Narayan for non-supply of the gold chain to accused-respondent sachindra as assured by P. W. 2, but they had not stated so before the I. O. So, the same cannot be relied upon. Moreover, it transpires from their evidence that the accused-Respondent Saehindra demanded Rs. 3000/-in lieu of the gold chain to utilize the same in his C. T. Examination. Moreover, it transpires from their evidence that the accused-Respondent Saehindra demanded Rs. 3000/-in lieu of the gold chain to utilize the same in his C. T. Examination. During cross-examination it was elicited from P. W. 2 that the accused-Respondent Saehindra appeared in the C. T. Examination in the month of November. So it is hard to believe that he demanded Rs. 3000/- in lieu of the gold chain on 29-12-1991 i. e. , two months after he appeared the C. T. Examination. Furthermore, it transpires from the evidence of P. W. 14, the I. O. that his investigation disclosed that the deceased had written some letters to P. W. 1. Had those letters been produced it would have shed some light on the prosecution case that the deceased was subjected to cruelty, but as found from the evidence of P. W. 14, even though he asked p. Ws. 1 and 2 to produce those letters they did not produce the same. It is found from the evidence of some witnesses that the deceased told before P. W. 3 that the accused-Respondent Saehindra had illicit relationship with the accused-Respondent snehalata Behera, the wife of his brother, for which he was ill-treating her. Some of the witnesses also stated that they had heard the same from P. W. 3, but since P. W. 3 and those witnesses had not stated so before the i. O. , the same cannot be relied upon. So, the trial Cou rightly held that there was no reliable evidence that the accused-Respondents subjected the deceased to cruelty. In absence of such evidence, the presumption as to abetment of suicide by the deceased as contained under Section 113-A of the Evidence Act cannot be drawn. Unless it is conclusively established that the harassment and torture meted out to the deceased was with a view to force her to commit suicide, the offence under Section 498-A of IPC cannot be attracted. It is the established principle of law that if the view taken by the trial Court is a plausible one, the appellate Court should not interfere with it even if a second view was possible. In my considered opinion the view taken by the trial Court is a plausible one. ( 10 ) FURTHERMORE, the alleged concurrence took place on 10-1-1992 and the accused-Respondents faced the ordeal of trial for about one year. In my considered opinion the view taken by the trial Court is a plausible one. ( 10 ) FURTHERMORE, the alleged concurrence took place on 10-1-1992 and the accused-Respondents faced the ordeal of trial for about one year. The appeal has been pending before this Court since about 14 years. So, at this stage it would be travesty of justice to set aside the order of the trial court and record an order of conviction against the accused-Respondents. ( 11 ) UNDER such facts and circumstances, the appeal stands dismissed and the judgment and order of acquittal passed by the trial Court are hereby confirmed. Appeal dismissed. .