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2008 DIGILAW 469 (ORI)

Karunakar Arakha v. State of Orissa

2008-06-24

B.K.PATEL, L.MOHAPATRA

body2008
JUDGMENT L. MOHAPATRA, J. — All the three appellants having been convicted for commission of offences under Sections 302/304-B/498-A read with Section 34 of the Indian Penal Code (in short ‘IPC’) as well as under Section 4 of the Dowry Prohibition Act and sentenced to imprisonment for life for their conviction under Section 302/34 and 304-B/34 IPC, imprisonment for three years for their convic¬tion under Section 498-A/34 IPC and imprisonment for one year for their conviction under Section 4 of the D.P. Act by the learned Additional Sessions Judge, Bhadrak in S.T. No.20/66 of 1996, have preferred this appeal against such order of conviction and sen¬tence. 2. Case of the prosecution as revealed from the F.I.R. is that deceased Kanakalata Arakha had married appellant No.1 Karu¬nakar Arakha on 21.5.1993. At the time of marriage, a cash of Rs.20,000/-, gold chain and other house-hold articles as per demand of the appellants had been given. Four to five months after marriage, a further sum of Rs.20,000/- was demanded, which could not be paid, as a result of which, appellants tortured, insulted and harassed the deceased in various ways for non-fulfilment of the said dowry demand. Appellant No.2 Narayan Arakha lodged a report (Ext.A) on 15.7.1994 at Bhandaripokhari Police Station informing therein that the deceased was missing and on search, her dead body was found in a well located within their bari (compound) and the said report was registered as U.D. Case No.22/94. P.W.13 held inquest on the dead body of the de¬ceased in presence of the Executive Magistrate P.W.16, brother of the deceased P.W.4 and two local witnesses P.Ws.1 and 10. After post mortem examination, it was found that the death was due to asphyxia by smothering and the doctor opined that it was a case of post mortem drowning. Upon receipt of such post mortem report, a formal F.I.R. was received from P.W. 4 and a case was registered for commission of the aforesaid offences. In course of investiga¬tion, the wearing apparels and ornaments of the deceased apart from some letters and dowry articles claimed to have been given at the time of marriage, were seized. On completion of investiga¬tion, chargesheet was submitted for commission of the aforesaid offences. The plea of defence is denial of the prosecution case. 3. In course of investiga¬tion, the wearing apparels and ornaments of the deceased apart from some letters and dowry articles claimed to have been given at the time of marriage, were seized. On completion of investiga¬tion, chargesheet was submitted for commission of the aforesaid offences. The plea of defence is denial of the prosecution case. 3. It is the case of the appellants that the brothers of the deceased were not coming to their house on festive occasions and they also did not invite the deceased to attend the marriage function of the daughter of her brother, as a result of which, the deceased felt hurt and committed suicide by jumping into the well. It was also the case of the appellant Karunakar that he was working in a biscuit factory at Jagatpur and was absent in the house on the date of occurrence. A further plea was taken by the appellants to the effect that the brothers of the deceased de¬manded a sum of Rs.50,000/- to suppress the matter but such amount having not been paid by the appellants, a false case has been foisted against them. 4. Prosecution examined nineteen witnesses to prove the charges. P.W.4 is the informant and brother of the deceased. P.Ws.7 and 8 are two other brothers of the deceased. P.W.9 is the wife of P.W.4 and P.W.6 is the uncle of the deceased. P.W.10 is a co-villager of the informant and P.W.5 is also related to the informant. P.Ws.11 and 12 are mediator and purohit respectively, who conducted the marriage. P.Ws.1 and 2 are the residents of village of the appellants, who had witnessed the inquest as well as seizure of house hold articles. P.W.14 is a witness to the seizure of letters of the deceased and P.W.16 is the Executive Magistrate in whose presence inquest was conducted. P.W.3 is the doctor, who conducted post mortem examination. P.W.13 is the A.S.I. of Police, who conducted inquiry into U.D. Case. P.W.15 is another A.S.I. of Police, who sent viscera for chemical examina¬tion. P.Ws.17, 18 and 19 are the Investigating Officers. On behalf of defence, one co-villager was examined. 5. The trial Court on the basis of the evidence of broth¬ers of the deceased as well as other relatives coupled with post mortem report found all the appellants guilty of the afore¬said offences and convicted them thereunder. 6. P.Ws.17, 18 and 19 are the Investigating Officers. On behalf of defence, one co-villager was examined. 5. The trial Court on the basis of the evidence of broth¬ers of the deceased as well as other relatives coupled with post mortem report found all the appellants guilty of the afore¬said offences and convicted them thereunder. 6. Shri B. Panda, learned Senior Counsel appearing for the appellants assails the impugned judgment on the following grounds:- 1. Delay in lodging the F.I.R. has not been satisfactorily explained. 2. There is no direct or circumstantial evidence to estab¬lish the charge under Section 302 IPC. 3. Evidence of P.W.3 the doctor who conducted post mortem examination is not conclusive to hold that the death is homicidal in absence of any supporting oral or documentary evidence. 4. Evidence of P.Ws. 4,6, 10 and 11 is not acceptable con¬sidering the evidence of Investigating Officers. Learned counsel for the State relying on the evidence of informant as well as other relatives of the deceased submitted that their evidence with regard to demand of dowry and torture for non-fulfilment of dowry demand is consistent. The death having taken place within seven years of marriage, the appellants have been rightly convicted under Section 304-B IPC. It was fairly conceded by the learned counsel that so far as offence under Section 302 IPC is concerned, there is no direct evidence and the circumstantial evidence proved by the prosecution with regard to the aforesaid offence was accepted by the trial Court and, accordingly, appellants have also been convicted under Section 302 IPC. 7. In order to appreciate the rival contention of the learned counsel appearing for both parties, it is necessary to examine the evidence carefully. P.W.3 is the doctor, who conduct¬ed post mortem examination. She in her evidence has specifically stated that it was a case of postmortem drowning. The cause of death is asphyxia probably by smothering. There is nothing in the cross-examination of this witness to discard her finding with regard to cause of death. If the evidence of P.W.3 is accepted, the death of the deceased was a homicidal death. On the basis of the post mortem report, charge had been framed under Section 302 IPC. It was fairly conceded by the learned counsel that there is no direct evidence to prove the charge under Section 302 IPC. If the evidence of P.W.3 is accepted, the death of the deceased was a homicidal death. On the basis of the post mortem report, charge had been framed under Section 302 IPC. It was fairly conceded by the learned counsel that there is no direct evidence to prove the charge under Section 302 IPC. So far as circumstantial evidence is concerned, it was found from the evidence of other witnesses as well as Investigating Offi¬cers that the dead body of the deceased was found from a well located within the compound of the appellants. From the evidence of P.W.4, it is found that the dead body of the deceased was found in a floating condition inside the well and her wearing saree was fixed by Kuakanta, which had been tied by a rope and the rope was fixed outside the well in a tying condition. P.W.6 has stated that he had seen the dead body of the deceased inside the well and had noticed swelling around her neck having black mark and blood was coming out from her nostrils. There was swelling of cheek and wearing cloth of the deceased had been tied on her waist. P.W.10 in his deposition, has stated that in presence of police and other villagers, the dead body of the deceased was brought out of the well and from the dead body of the deceased, he found there was no ornaments on her body, blood was coming out from her nostrils and there was a mark on her neck. The wearing saree of the deceased was tied on her waist and her body was tied by a rope to outside the well. The water level of the well was within 2 feet from the ground level. 8. From the above evidence, it is prima facie established that the death of the deceased was not due to downing but because of asphyxia due to smothering. It also appears that after her death, the deceased was put into the well for which the doctor P.W.3, who conducted post mortem examination, has specifically stated that it was a case of post mortem drowning. It further appears that neither there is any direct evidence nor any circum¬stantial evidence pointing at any of the appellants in committing the murder of the deceased. It further appears that neither there is any direct evidence nor any circum¬stantial evidence pointing at any of the appellants in committing the murder of the deceased. We are, therefore of the view that the prosecution has not been able to prove the charge under Section 302 IPC against any one of the appellants. Having held that the prosecution has failed to prove the charge under Section 302 IPC, we now proceed to examine as to whether the appellants are liable for conviction under Section 304-B IPC, the death having taken place otherwise than in normal circumstances within seven years of marriage. P.W.4 is the brother of the deceased and is also the informant in the case. He, in his deposition, has stated that the appellant Karunakar had married the deceased on 21.5.1993 and at the time of marriage, there was a demand of cash of Rs.20,000/-, one gold chain from the side of the appellant Karunakar. At the time of marriage, they had also given gold ornaments of about seven tola and other articles as per list given by the appellants Karunakar. After marriage, the deceased was staying in the house of the appellants peacefully for about two months. Two months after marriage, the appellants started demanding a further cash of Rs.20,000/- on the ground that the appellant Karunakar wanted to start a business and also to meet the marriage expenses of the sister of Karunakar. He had agreed to pay a sum of Rs.7000/- but in fact had paid a cash of Rs.3000/- to the appellants. He has further stated that the appellants were torturing her sister by assaulting and they were also not giving proper food whenever she was staying in their house. When he had visited the house of the appellants on some festive occasions, deceased complained before him about the torture meted out to her by the appellants. This witness has further stated that on two occasions i.e. once in Raja Sankranti and other on Prathama Astami day when he had visited to the house of appellants, he had seen assault on Kana¬kalata by the appellant Karunakar because of non-payment of balance amount. He has also stated that after marriage, the deceased had come to their house twice and during that period, she had disclosed about the torture meted out to her by the appellants. He has also stated that after marriage, the deceased had come to their house twice and during that period, she had disclosed about the torture meted out to her by the appellants. He has also stated that once when the deceased was staying in their house, appellant Karunakar arrived and assaulted her in their house on the ground of non-payment of balance dowry amount. This witness has also stated that he was also misbehaved when he had visited to the house of the appellants. In cross-examination, he has also stated about the said demand of dowry and torture. From the evidence of P.W.18, the I.O. it appears that P.W.4 had stated before him that at the time of marriage, there was demand of Rs.20,000/- and a gold chain from the side of the appellants. He had stated before the I.O. that the appellants demanded a sum of Rs.20,000/- for opening a shop but he had not stated that the demand was made two months after the marriage. This witness had also not stated before the I.O. that on Raja Sankaranti and Prathamastami day he had visited the house of the appellants and that the appellant Karunakar tortured and assault¬ed her in his presence. This witness had also not stated before the I.O. that when the deceased visited their house, she had com¬plained of ill-treatment at the hands of the appellant Karunakar. P.W.5 is the co-villager of the informant, who has stated that at the time of marriage, there was a demand of Rs.25,000/- but a cash of Rs.20000/- had been paid. He has also stated that at the time of marriage, some gold ornaments and other articles had been given as per demand of appellant Karunakar. He has further stated that after marriage the deceased had come to the house of her brothers twice and disclosed in the month of Falgun when she had come to his house that the appellant Karunakar was demanding further amount of Rs.20,000/- from her brothers and also torturing and assaulting her for non-payment of the said amount. This witness in cross-examination has admitted that he had not stated before the police that a sum of Rs.20,000/- had been paid at the time of marriage to appellant Karunakar. This witness in cross-examination has admitted that he had not stated before the police that a sum of Rs.20,000/- had been paid at the time of marriage to appellant Karunakar. He had also not stated before the I.O. that in the month of Falguna, the deceased came to the village of P.W.4 and also came to his house and disclosed about the further demand of Rs.20,000/- by appel¬lant Karunakar or that she disclosed about any torture or assault at the instance of appellant Karunakar for non-fulfilment of dowry demand. P.W.6 is the uncle of informant P.W.4 and he claims to have adopted the deceased as his daughter and had also given her in marriage. He, in his deposition, has stated that there was a demand of cash of Rs.25,000/- by the appellant No.1 and a sum of Rs.20,000/- had been paid at the time of marriage. He has further stated that four to five months after the marriage, the deceased had come to their house and narrated about the torture meted out to her by the appellant No.1 Karunakar. He has further stated that the deceased disclosed before him that appellant No.1 Karu¬nakar was torturing her because of non-fulfilment of further demand of cash to run a business. He has also stated about the assault on the deceased by the appellant Karunakar in his house. From the evidence of P.W.17, one of the I.Os., it appears that this witness had not stated before him that four to six months after the marriage, when the deceased had gone to their house, she complained about the torture and assault on her by the appel¬lant Karunakar or that Karunakar came to their house and assault¬ed the deceased. Similarly P.W.18 another I.O., who had also examined this witness, has stated in cross-examination that P.W.6 had not stated before him that he had heard from his wife about torture and assault on the deceased by appellant Karunakar. However, he had stated before the I.O. that Karunakar had come to her house and assaulted the deceased. P.W.7 is the sister of the deceased. She has also corrobo¬rated the evidence of P.Ws.4 and 6 so far as demand of dowry and torture are concerned. However, he had stated before the I.O. that Karunakar had come to her house and assaulted the deceased. P.W.7 is the sister of the deceased. She has also corrobo¬rated the evidence of P.Ws.4 and 6 so far as demand of dowry and torture are concerned. From the evidence of P.W.19, the I.O. it appears that this witness had not stated before him specifically that the accused persons were torturing and assaulting the de¬ceased on account of non-fulfilment of demand of dowry. She had not stated before the I.O. that the deceased had come to their house for the second time and the appellant Karunakar had come and assaulted her for non-payment of the balance amount. P.W.8 is another sister of the deceased and she has made a general statement with regard to misbehaviour and torture shown to the deceased. From the evidence of I.O. P.W.17, it appears that she had not stated before the I.O. specifically that there was an additional demand of Rs.3000/- or the deceased complained about the misbehaviour of the accused persons in not giving her food or assault on the deceased for non-payment of the balance amount. P.W.9 is the wife of P.W.4 and she has also stated about the demand of dowry and misbehaviour shown to the deceased though in a different manner. From the evidence of P.W.17, the I.O. it appears that this witness had not stated before him that the deceased and appellant Karunakar after quarrelling with their father and brother fled away from their house or that there was a demand of Rs.20,000/- and other articles at the time of marriage. She had also not stated before the I.O. that four months after the marriage a further demand of Rs.20,000/- had been made. However, she had stated before the I.O. that the deceased was subjected to torture and assault on account of non-payment of the additional amount. P.W.10 is a co-villager, who has stated about the demand at the time of marriage and who had also seen the dead body of the deceased after recovery of the same from the well. P.W.11 is the mediator of the marriage, who has also stated about the demand of dowry at the time of marriage. He has further stated that the appellant Karunakar was demanding a further sum of Rs.20,000/- to run a business but P.W.4 had paid him Rs.3000/-. P.W.11 is the mediator of the marriage, who has also stated about the demand of dowry at the time of marriage. He has further stated that the appellant Karunakar was demanding a further sum of Rs.20,000/- to run a business but P.W.4 had paid him Rs.3000/-. This witness has stated that when he visited the maternal house of the deceased, he was intimated by the deceased that appellant Karunakar was demanding an additional sum of Rs.20,000/- and was insulting and torturing her for non-payment of the said amount. From the evidence of P.W.19 the I.O., it appears that no contradiction has been brought out so far as demand of dowry and torture are concerned. P.W.12 is the Purohit, who conducted the marriage and has stated about payment of Rs.20,000/- in cash and a gold ring to appellant Karunakar as per his demand at the time of marriage. P.W.13 had registered the U.D. Case on the basis of the information given by the appellant No.2 and P.W.14 is a witness to seizure of four letters produced by P.W.4. P.W.15 is the Police Officer, who had made necessary ar¬rangement to send viscera of the deceased to S.F.S.L., Rasulgarh for chemical examination and P.W.16 is a witness to the inquest. P.Ws. 17, 18 and 19 are the three Investigating Officers. 9. On analysis of the entire evidence as stated above, it is found that P.W.4 is the informant and brother of the deceased. P.W.5 is a co-villager. P.W.6 is the uncle of the deceased. P.W.7 is the sister of the deceased. P.W.8 is another sister of the deceased. P.W.9 is the wife of P.W.4 and P.W.10 is a co-villager apart P.Ws.11 and 12 who consistently stated about the demand of dowry at the time of marriage by appellant No.1 Karunakar. Though from the evidence of P.Ws.17, 18 and 19 the three Investigating Officers, some contradictions have been brought out in respect of evidence of the aforesaid witnesses, it is found that the informant had not only stated before the I.O. that there was a further demand of Rs.20,000/- for opening of a shop but also he had stated so in Court and no contradiction in this regard has been brought out. 10. 10. So far as P.W.6 is concerned, though this witness had not stated before P.Ws.17 and 18 that the deceased had complained about the torture and assault on her by the appellant Karunakar, P.W.18 in-cross-examination has admitted that P.W.6 had stated before him that Karunakar had come to their house and assaulted the deceased. From the evidence of P.W.17, it appears that though P.W.8 in his deposition stated that there was an additional demand of Rs.3000/-, he had not specifically stated so before the I.O. P.W.9 in his deposition has stated abut the torture and assault on deceased for non-payment of additional dowry demand and no contradiction in that regard has been brought out from the evidence of I.O.P.W.17. P.W.10 had not stated about the demand of dowry at the time of marriage or further demand of dowry four to five months after the marriage before the I.O. and, therefore his evidence in this regard is not acceptable. However, on overall analysis of the entire evidence, it appears that P.Ws.4 and 9 and to some extent P.W.8 are consistent in their statements that there was a further demand of Rs.20,000/- sometime after the marriage and the deceased had been subjected to torture for non-fulfilment of the said dowry demand. Further, it appears from the evidence of all these witnesses that accusation regarding further demand of dowry as well as the allegation of torture and assault are against appellant No.1 Karunakar and there is no allegation specifically against either appellant Nos.2 and 3, who are the brother and mother of appellant No.1 Karunakar. 11. For the reasons stated earlier, we have already held that offence under Section 302 IPC has not been proved by the prosecution. So far as offence under Section 304-B IPC is con¬cerned, it papers that marriage took place on 21.5.1993 and the dead body of the deceased was recovered a year and two months after. Four to five months after the marriage, there was a fur¬ther demand of dowry by the appellant No.1 and there is evidence of at least three witnesses who have stated about the torture meted out to the deceased for non-fulfilment of demand of dowry by appellant No.1. 12. Four to five months after the marriage, there was a fur¬ther demand of dowry by the appellant No.1 and there is evidence of at least three witnesses who have stated about the torture meted out to the deceased for non-fulfilment of demand of dowry by appellant No.1. 12. We, are therefore of the view that the prosecution has been able to prove the charge under Sections 304-B, 498-A IPC and Section 4 of the D.P. Act against the appellant No.1 Karunakar Arakha, whereas it has failed to establish the charges against other two appellants namely, Narayan Arakha and Bauli Arakha. We, therefore, allow the appeal in part and set aside the order of conviction and sentence passed by the trial Court against appellant Nos.2 and 3 (Narayan Arakha and Bauli Arakha) and also set aside the conviction of appellant No.1 (Karunakar Arakha) under Section 302 IPC. However, we maintain the convic¬tion of appellant No.1 for commission of offences under Sections 304-B and 498-A IPC as well as Section 4 of the D.P. Act as well as the sentence imposed by the trial Court for commission of the aforesaid offences. All the sentences are to run concurrently. It appears that all the appellants are in custody. The appellants 2 and 3 namely, Narayan Arakha and Bauli Arakha be set at liberty forthwith unless their detention is required in any other case. B. K. PATEL, J. I agree. Appeal allowed in part.