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2009 DIGILAW 82 (ORI)

STATE OF ORISSA v. ABHIMANYU ROUT

2009-01-30

P.K.TRIPATHY, S.PANDA

body2009
JUDGMENT : 1. The State has preferred this Government Appeal as against the order of acquittal recorded by learned Sessions Judge, Balasore-Bhadrak at Balasore on 3.2.1996 in S.T. No. 90 of 1994. 2. Respondent No. 2 Brundaban Rout is the father of Respondent No. 1 Abhimanyu Rout. Both of them faced trial for the charge under Sections 498-A and 302/34, IPC read with Section 4 of the Dowry Prohibition Act. Hereinafter, they are referred to as "the accused". 3. The impugned judgment reveals that marriage of the deceased Saraswati Rout was solemnized with accused Abhimanyu Rout in July, 1985. That accused being appointed as a teacher in Jaleswar Feeder L.P. School, the deceased stayed with him at Jaleswar. P.W.1 Jadunath Naik is the elder brother of the deceased. He is also the informant in this case. In the F.I.R. as well as in his deposition, P.W.1 deposed that there was ill-treatment and cruelty on the deceased on account of demand of dowry and in 1991 when another sister of P.W.1 was given in marriage, together with presentation of articles at the time of marriage, the accused persons made demand for a television and gold bangles. Like that, there are allegations of information with P.W.1 regarding the ill-treatment on the deceased by accused Abhimanyu after they stayed at Jaleswar. On 2.4.1993 on receipt of the telegram Ext.7 P.W.1 could ultimately ascertained that the deceased was done to death by accused Abhimanyu in the premises under his occupation at Feeder L.P. School. Accordingly, he lodged F.I.R. Before that, accused Abhimanyu had also lodged report in the police station that he found his wife hanging. On the basis of the report of accused Abhimanyu, the A.S.I, of Police (P.W.11) had already taken up inquiry after registering a case for unnatural death. The A.S.I. of Police visited the spot held inquest over the dead body and sent the same for post-mortem examination. On receipt of the F.I.R. from P.W.1, the investigation was taken up by P.W.10, the Officer-in-charge of Jaleswar Police Station. On completion of investigation, charge-sheet followed with supplementary charge-sheet was submitted and ultimately charge was framed against accused persons for the offence already indicated. 4. To substantiate the charge, prosecution examined twelve witnesses and relied on documents marked as Exts.1 to 22 and in defence of denial, accused persons examined two witnesses and relied on two letters, Exts.A and B. 5. 4. To substantiate the charge, prosecution examined twelve witnesses and relied on documents marked as Exts.1 to 22 and in defence of denial, accused persons examined two witnesses and relied on two letters, Exts.A and B. 5. Amongst witnesses, P.W.2 Dr. Sandhyarani Patnaik and P.W.9 Dr. Bhabani Shankar Mishra are the doctors who conducted post-mortem examination on the dead body of the deceased on the basis of inquest report Ext.17. The post-mortem report was marked as Ext.12 and the opinion report of P.W.2 as Ext.13. The viscera being preserved was sent for chemical analysis and the report has been marked as Ext.14. Similarly, the opinion report of P.W.9 was marked as Ext.15. Learned Sessions Judge taking note of the aforesaid evidence has stated that P.Ws 2 and 9 found that there was a superficial lacerated wound of 11/2" x 1/4" x skin depth over the lateral part of right eye-brow and a ligature mark around the neck. In course of conducting the post-mortem examination, both the doctors opined that the superficial lacerated wound did not contribute to the death of the deceased and at the same time the deceased did not suffer the death due to hanging (because the ligature mark was post-mortem in nature). They preserved the viscera for chemical analysis. The report on chemical analysis revealed that the viscera was not containing any of poisons so as to cause death due to poisoning. On the further query of the investigating officer which necessitated him to submit the supplementary charge-sheet, P.Ws.2 and 9 gave their opinion report that the death was due to the aforesaid superficial lacerated wound. Referring to all such evidence, both oral and documentary, learned Sessions Judge held that the prosecution has not been able to prove a case of homicidal death due to the antemortem injuries or poisoning. 6. Learned Standing Counsel in course of his submissions makes a threadbare examination of all the evidence and concedes to the factual position that evolves from the evidence on record. Therefore, we do not find any fault in the finding recorded by the trial Court that prosecution has failed to prove a case of homicidal death of the deceased. On that account alone, the accused persons are free from the charge u/s 302/34, IPC. 7. Therefore, we do not find any fault in the finding recorded by the trial Court that prosecution has failed to prove a case of homicidal death of the deceased. On that account alone, the accused persons are free from the charge u/s 302/34, IPC. 7. Apart from that, from the evidence of the teaching-staff and other persons living near and around the Feeder L.P. School, it is not proved by the prosecution that conductwise the crime could be attributed to Abhimanyu for any suspicious movement or conduct prior to or at the time of occurrence. Under such circumstances, we find sufficient force on the reasonings assigned by the trial Court in the impugned order of acquittal. 8. Learned Sessions Judge considered the evidence of P.W.1 and the other cousin of the deceased and recorded them to be interested witnesses so as to nullify the charges u/s 498-A, IPC and Section 4 of the Dowry Prohibition Act. Learned Standing Counsel capitalizes on the evidence of P.W.1 and argues to sustain the charge. Learned Counsel for the Respondents, on the other hand, rebuts the same by referring to the evidence of P.Ws.4 to 6 who are the neighbours of the accused and the deceased at the relevant time and states that in the absence of any proof of ill-treatment or cruelty on the deceased by the accused Abhimanyu during the relevant period, the evidence of P.W.1, a highly interested witness, cannot be ipso facto accepted as gospel truth. In that respect, admittedly two views are possible and the view taken by the trial Court in favour of the accused cannot be ruled out to be an unreasonable or illegal view. Therefore, even if we find some substance in the argument of learned Standing Counsel and the other view for the offence u/s 498-A, IPC and Section 4 of the Dowry Prohibition Act, in view of the settled position of law that the appellate Court is not to impose its view when the view expressed by the trial Court is reasonable and plausible, we do not interfere with that part of the order of the trial Court. 9. For the reasons indicated above, we find no merit in the Government Appeal and the same is dismissed. Final Result : Dismissed