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2010 DIGILAW 597 (ORI)

State of Orissa v. Giribara Ada

2010-08-20

C.R.DASH, L.MOHAPATRA

body2010
JUDGMENT L. MOHAPATRA, J. : This Government Appeal is directed against the judgment and order of the learned Additional Sessions Judge, Sambalpur passed in S.T. Case No.47/23 of 1996. Respond¬ents 1 to 6 were charged for commission of offence under Sections 498-A, 304-B, 302, 201, 34 of the Indian Penal Code (in short ‘IPC’) and under Section 4 of the Dowry Prohibition Act whereas respondent No.7 was charged for commission of offence under Sections 217, 218 and 201 of IPC. The trial Court acquitted respondents 1 to 6 of the charges whereas respondent No.7 was found guilty for commission of offence under Sections 217 and 201 of IPC but he was released under Section 4(1) of the Probation of Offenders Act on execution of a bond of Rs.5000/- without surety. 2. Case of the prosecution is that deceased Bijaya Ada, daughter of Gouranga Pradhan-P.W.16 had married respondent No.1 in the month of March, 1993 and after marriage, both of them stayed in the house of the accused persons. The deceased was found missing in the night of 16.10.1994. After search, she was found lying alive with injuries on the train line near Bagdihi Railway Level Crossing on 17.10.1994 morning. Receiving informa¬tion from the Gate-man of Bagdihi Level Crossing, the Assistant Station master, Bagdihi Railway Station, entered the fact into the Station Diary at 6.30 A.M. As Geetanjali Train was to pass on the said line, on demand of the public, the Assistant Station Master came to the spot with stretcher to rescue the deceased. When the deceased was put on the stretcher for being taken to the hospital, she expired. Thereafter, the body of the deceased was kept on the side of the train line and another Station Diary Entry was made by the Assistant Stanton Master at 8.10 A.M. The O.I.C., G.R.P.S., Jharsuguda registered a U.D. Case at 12.30 P.M. on the basis of the Station Diary Entry made by the Assistant Station Master, Bagdihi Railway Station and visited the spot to inquire and after completion of inquiry, he handed over the dead body to respondents 1 to 6 without getting the postmortem exami¬nation done. The dead body was cremated in the night of 17.10.1994. The dead body was cremated in the night of 17.10.1994. On 17.10.1994 evening, the elder brother of deceased-Bijaya Ada came to the house of the accused persons, learnt about the incident and on 18.10.1994, submitted a written report before the O.I.C., Jharsuguda G.R.P.S. alleging that the deceased was being assaulted by respondents 1 to 6 demanding more gold orna¬ments and also on the allegation that in the night of 16.10.1994, the deceased was assaulted in the house of the respondents 1 to 6 and that he suspected respondents 1 to 6 have committed the murder of deceased on account of demand of dowry. After receipt of information, a case was registered, investigation was conduct¬ed and charge-sheet was submitted against respondents 1 to 6 for commission of the aforesaid offences and so far as respondent No.7 is concerned, he was charge-sheeted for commission of of¬fence under Sections 217, 218 and 201 of IPC. The plea of defence is complete denial of the allegation. The further plea of the defence was that the deceased was suffer¬ing from mental disorder and was in the habit of leaving the house without informing any one. In the night of 16.10.1994, she returned home from the house of P.W.1 after attending a feast and without knowledge of any one she left the house and committed suicide on the train line near Bagdihi Level Crossing. Respondent No.7, who is a Police Officer, had been separately charged and took a plea that under the pressure of the public, he had handed over the dead body without sending the same for postmortem exami¬nation. 3. In order to prove the charges, prosecution examined 21 witnesses whereas defence examined none. Out of twenty one wit¬nesses, P.W.11 is the elder brother of the deceased and is the informant in the case. P.W.16 is father of the deceased and P.W.9 is brother-in-law of the informant as well as husband of respond¬ent No.5-Urmila. P.W.1 is the cousin brother of the informant and P.W.2 is the neighbor of the informant. P.W.10 resides near the spot where dead body was lying. P.W.5 is the Gate-man of Bagdihi Railway Level Crossing. P.W.13 is the Assistant Station Master and P.W.17 is the Station Master of Bagdihi Railway Station. P.W.19 is the Section Controller of Chakradharpur Railway Sta¬tion. P.W.1 is the cousin brother of the informant and P.W.2 is the neighbor of the informant. P.W.10 resides near the spot where dead body was lying. P.W.5 is the Gate-man of Bagdihi Railway Level Crossing. P.W.13 is the Assistant Station Master and P.W.17 is the Station Master of Bagdihi Railway Station. P.W.19 is the Section Controller of Chakradharpur Railway Sta¬tion. P.W.20 is the O.I.C., Laikera Police Station, who had registered P.S. Case on 19.10.1994 on receipt of the written report dated 18.10.1994 from P.W.11 and had investigated into the case. P.Ws.3,4,6,7,8,12,13,14,15,18 and 25 are seizure witnesses. The trial Court on analysis of the evidence of P.Ws.1, 9, 11 and 16 did not accept the allegation of torture on the deceased on any account. So far as offence under Section 302 IPC is concerned, the trial Court also did not find any evidence impli¬cating respondents 1 to 6. Accordingly, the trial Court acquitted respondents 1 to 6 of the charges. So far as respondent No.7 is concerned, the trial Court found that he being a Police Officer, should not have handed over the dead body to the respondents instead of getting postmortem examination done and, accordingly, found him guilty for commission of offence under Sections 217 and 201 of IPC. The material witnesses examined on behalf of the prosecution are P.Ws.1, 2, 9, 11 and 16. 4. P.W.1 in his deposition has stated that the deceased was of unsound mind and to his knowledge she had left the house on two occasions and once she was caught hold of inside the jungle. On the date of occurrence i.e. 16.10.1994, the deceased had come to his house on account of birth day of his son and she was alright. On 17.10.1994 in the morning he was informed by the father-in-law of the deceased that the deceased had left the house in the night. Thereafter, a search was made but the deceased was not found. While returning back, they over heard two persons discuss¬ing about a dead body lying on the Railway line and, accordingly, they went to the spot and found the deceased lying on the Railway line. This witness has further stated that accused persons were pulling on well with the deceased. This witness appears to have practically supported the case of the defence. P.W.2 is a post occurrence witness and has signed on the inquest report. This witness has further stated that accused persons were pulling on well with the deceased. This witness appears to have practically supported the case of the defence. P.W.2 is a post occurrence witness and has signed on the inquest report. P.W.9 is the son-in-law of respondent No.2. He, in his deposition, has stated that in the night of 19.10.1994, he and his wife had come to the house of their cousin brother-in-law, Laxmidhar Ada. On 20.10.1994 morning, respondent No.2 came there and informed that the deceased had left the house in the previous night and, there¬after, they went in search of the deceased. In cross-examination, this witness has stated that husband of the deceased was serving at Brajarajnagar prior to the death of the deceased and the deceased was also staying with him. He has further stated that he heard from his wife that the deceased was leaving the house frequently without informing any one and she was doing so due to her mental disorder. This witness has further stated in cross-examination that so long the deceased was in the house of father-in-law, she was living happily. P.W.11 is the witness on which much reliance has been placed by the prosecution. He is the elder brother of deceased. This witness in his deposition has stated that six months after marriage, the respondents were assaulting the deceased on the ground that she had not brought sufficient gold. The deceased was only being supported by her mother-in-law and none other. One or two instances of mental torture has been narrated by him. Though P.W.11 stated about assault on the de¬ceased due to non-fulfillment of dowry demand, his evidence is not supported by evidence of P.W.16, who is father of the de¬ceased. P.W.16 nowhere in his deposition has stated that there was any demand of dowry or that the deceased was being subjected to torture for non-fulfillment of dowry demand. This witness has stated that whenever the deceased came to their house, she used to say that she was doing all the household work alone and nobody was assisting her. There is no other witness on which much reli¬ance is placed by the prosecution. 5. This witness has stated that whenever the deceased came to their house, she used to say that she was doing all the household work alone and nobody was assisting her. There is no other witness on which much reli¬ance is placed by the prosecution. 5. On analysis of the evidence of P.Ws.11 and 16, we find that evidence of P.W.11 with regard to demand of dowry and tor¬ture is not at all supported by P.W.16 and, therefore, the trial Court was justified in not accepting the prosecution case that the deceased had been subjected to torture for none fulfillment of dowry demand and, accordingly, the trial Court was also justi¬fied in acquitting the respondents 1 to 6 of the charges under Sections 498-A, 304-B and Section 4 of the D.P. Act. So far as offence under Section 302 IPC is concerned, learned counsel for the State fairly submitted that there is absolutely no evidence on record to support the charge. As a matter of fact, on analysis of the evidence, we also find that the dead body of the deceased was found on the Railway line near Bagdihi Railway Level Crossing and except this, there is no evidence to support the charge under Section 302 IPC. According¬ly, the trial Court was justified in acquitting the respondents 1 to 6 of the charge under Section 302 IPC. So far as offence under Section 201 IPC is concerned, the dead body of the deceased was handed over to the family members with a specific instruction that the same be cremated after arrival of the family members of the deceased. Accordingly, the dead body had been cremated. Therefore, there was no fault on the part of respondents 1 to 6 screen the evidence and, accordingly, they were rightly acquitted of the said charge. So far as respondent No.7 is concerned, evidence of P.W.1 is clear to the effect that the said respondent being a Police Officer allowed the dead body to be taken away by the family members and the villagers knowing fully well that the deceased died an unnatural death. Therefore, the trial Court was justified in convicting him for commission of offence under Sections 217 and 201 IPC. Therefore, the trial Court was justified in convicting him for commission of offence under Sections 217 and 201 IPC. So far as sentence is concerned, the said respondent was released under Section 4(1) of Probation of Offenders Act, considering the circumstances under which he had to hand over the dead body to the family members and villagers. We, therefore, do not find any reason to interfere with the impugned judgment. Accordingly, the Government Appeal, being devoid of any merit, is dismissed. C.R. DASH, J. I agree. Appeal dismissed.