Research › Search › Judgment

Orissa High Court · body

2009 DIGILAW 715 (ORI)

SUBHADRA DEBATA v. STATE OF ORISSA

2009-09-08

B.P.RAY

body2009
JUDGMENT : B.P. Ray, J. - The Appellants have filed the aforesaid criminal appeal challenging the judgment of conviction and order of sentence passed by the learned Addl.Sessions Judge, Bhadrak in S.T. Case No. 10 of 1990/52 of 1990. The learned Addl.Sessions Judge in the impugned judgment while acquitting the Appellants of the charge u/s 306/34 I.P.C. found them guilty of charge u/s 498-A/34 I.P.C. and sentenced each of them to undergo R.I. for one year on the said count. The criminal revision has been filed by the informant against the order of acquittal of the Appellants of the charge u/s 306/34, IPC. Both these matters having arisen out of the same judgment and order, they are heard together and disposed of by this common judgment. 2. Briefly the case of the prosecution against the Appellants (hereinafter referred to as "the accused persons") is that Sandhyarani Panda, the daughter of Arjuna Charan Panda (P.W.4) was given in marriage to one Laxmikanta, who happens to be the son of accused Umakanta Pati. At the time of marriage a demand of five tolas of gold was made by Umakanta Pati. But the informant could give only four tolas of gold at the time of marriage and agreed to give the rest one tola of gold later, which he could not give for paucity of funds. For non-fulfillment of such demand, Sandhayarani was subjected to torture by the accused persons who happen to be respectively, her husband's grandmother, father and brother. It is the further case of the prosecution that Sandhyarani was ill-treated by the accused persons with a common intention to coerce her to fulfill their illegal demand and they subjected her to cruelty, mental as well as physical for which Sandhyarani was compelled to commit suicide in the night intervening 20/21.11.1988. 3. The matter was reported to the Police in writing by filing an F.I.R. (Ext.1) by the informant, pursuant to which Bhandaripokhari P.S. Case No. 74 dated 21.11.1988 was registered and police took up investigation. On completion of investigation, Police placed charge sheet against the accused persons. The accused persons thereafter faced their trial before the learned Addl.Sessions Judge, Bhadrak being charged under Sections 498-A, 306 both read with Section 34, I.P.C. with a plea of complete denial and false implication. On completion of investigation, Police placed charge sheet against the accused persons. The accused persons thereafter faced their trial before the learned Addl.Sessions Judge, Bhadrak being charged under Sections 498-A, 306 both read with Section 34, I.P.C. with a plea of complete denial and false implication. On conclusion of the trial, basically relying on the evidence of the relations of the deceased, such as P.Ws.1 to 4, the trial Court returned the impugned judgment and order of sentence as stated earlier. 4. Assailing the impugned judgment of conviction of the Appellants for offence under Sections 498-A/34, I.P.C, it is submitted by learned Counsel for the Appellants that in this case there being no credible evidence worth on record to sustain such a charge, the trial Court committed gross illegality inholding the Appellants guilty of the said charge. When the conviction u/s 498-A/34 I.P.C. is unsustainable, acquittal of the Appellants from the charge u/s 306/34 I.P.C, can not be said to be perverse warranting an interference in exercise of the power of revision, submits counsel for the Appellants. Hence, it is submitted by him to allow this appeal by setting aside the impugned judgment of conviction and dismiss the revision at the instance of the informant, as the same is devoid of any merit. However, learned Counsel appearing for the State submits that there is ample material to come to a conclusion that the Appellants are guilty of the charge under Sections 498-A/34, I.P.C. and hence no fault can be found with the judgment of conviction and the order of sentence passed by the trial Court. Learned counsel appearing for the revision Petitioner while defending the judgment of conviction passed by the trial Court, further submits that when the trial Court came to a conclusion that the deceased was subjected to cruelty for non-fulfillment of demand of dowry made by the Appellants, in view of the presumption u/s 113(A) of the Evidence Act, the trial Court ought not have without any cogent reasons acquitted them of the charges u/s 306, I.P.C Hence, he submits to allow this revision and remit back the matter to the trial Court to rehear the matter afresh and dispose of the same in accordance with law. 5. 5. It is no more res-integra that a revision against an order of acquittal at the instance of the private party, though the State may not have thought it fit to file an appeal is maintainable. But the High Court in such a revision, can not record a judgment of conviction in view of the fetter u/s 401(3) Code of Criminal Procedure In view of the same unless the case is exceptional in nature, it is well-nigh settled that the High Court should not interfere with the impugned order of acquittal. The aforesaid position of law has since been well settled by the apex Court in an oft quoted decision i.e. in the case of K. Chinnaswamy Reddy Vs. State of Andhra Pradesh. Their Lordships of the apex Court in the said decision have held as follows :- It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought it to appeal; but his jurisdiction should be exercised by the i High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a point of law and consequently there has been a flagrant miscarriage of justice. Sub Section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of connection. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. Some cases of this kind however may be indicated, which would justify the High Court in interfering with a finding of acquittal in revision. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. Some cases of this kind however may be indicated, which would justify the High Court in interfering with a finding of acquittal in revision. These cases may be : where the trial Court has no jurisdiction to try the case but has still acquitted the accused or where the trial Court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal Court has wrongly held evidence which was admitted by the trial Court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the appeal Court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of Section 438(4). (para 7). 6. In the present case, it is seen that the trial Court basically relying on the evidence of P.Ws. 1 to 4, who are the close relations of the deceased-Sandhyarani being her mother, brother, aunt and father respectively returned the impugned judgment as sated earlier. The evidence of P.Ws.1 to 4 would go to show that the deceased said to have disclosed before them with regard to the torture meted to her by the Appellant-accused persons for non-fulfillment of the demand of dowry especially the gold necklace. It is also the evidence of P.Ws.1-mother of the deceased that the deceased had written letters to her father and one of the letters of her (deceased) proved as Ext.2 by the P.W.4- the father of the deceased. In Ext.2, no whisper has been made by the deceased with regard to any dowry torture meted to her either physical or mental for non-fulfillment of any demand of dowry by her in-laws members though written soon before her death. Besides the aforesaid witnesses, it appears that no independent witnesses have been examined by the prospection in support of their case against the accused persons. The marriage was solemnized in the year 1986. Besides the aforesaid witnesses, it appears that no independent witnesses have been examined by the prospection in support of their case against the accused persons. The marriage was solemnized in the year 1986. Soon after the marriage, the torture was started and it appears to have continued till the death of the deceased which was for about two years as revealed from the evidence of the aforesaid witnesses. It appears from the evidence of the mother of the deceased that the husband of the deceased, who was staying outside, was not informed about the same. In the cross-examination of P.W.1, the defence has elicited the same. P.Ws.2 to 4 have also not deposed that they intimated the torture meted to the deceased by the Appellants to her husband. There is also no evidence on record to show that the aforesaid matter was drawn to the notice of the village gentries or the caste people by P.Ws.1 to 4. No other contemporaneous evidence is also available with regard to such torture. It is only after the death of the deceased, the prosecution was lodged against the Appellants, in-laws members leaving the husband of the deceased. The deceased committed suicide as revealed from the materials on record. The aforesaid conduct of the witnesses militates against the veracity of their version and speaks volume with regard to their truthfulness; which is further fortified from the fact that in Ext.2, stated to have been written by the deceased, there is no whisper with regard to any torture or any cruelty meted to her by the Appellants. 7. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra the apex Court while appreciating the evidence of the close relations of a deceased in paragraph 48 of the judgment have held as follows :- Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if, the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it. 8. In such premises, the trial Court should not have accepted the evidence of P.Ws.1 to 4 to be trustworthy in coming to a conclusion that the Appellants meted deceased with cruelty, thereby committed an offence u/s 498-A/34, I.P.C. So, on re-appraisal of the evidence on record, this Court is of the view that there being no credible evidence on record in this case to come to a finding that the Appellants meted the deceased with cruelty for non-fulfillment of their demand of dowry and as such the triaf Court should not have convicted the Appellants in this case for charge u/s 498-A/34, I.P.C. Hence, the impugned judgment of conviction recorded in this case is unsustainable in the eye of law. 9. When this Court has already come to a conclusion that in this case there is no cogent evidence to hold the Appellants guilty under Sections 498-A/34, I.P.C, the order of acquittal recorded by the trial Court under Sections 306/34, I.P.C. cannot be said to be perverse or suffer from any illegality or infirmity consequentially leading to flagrant miscarriage of justice, warranting an interference in exercise of the revisional jurisdiction of this Court. 10. Resultantly, the criminal appeal stands allowed. The impugned judgment and order of conviction and the sentence passed against the Appellants are set aside and they are acquitted of the charge u/s 498-A/34, IPC. Consequently, the criminal revision stands dismissed.