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2013 DIGILAW 64 (ORI)

Budha @ Budha Charan Panda v. State of Orissa

2013-03-08

B.K.MISRA

body2013
JUDGMENT B. K. MISRA, J. : The appellant being aggrieved with the order of conviction and sentence imposed on him under Section 498-A of the Indian Penal Code (for short the 'I.P.C.') to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- in default to further undergo rigorous imprisonment for six months by the learned Additional Sessions Judge, Balasore in S.T.Case No. 19-24 of 1987 has preferred this appeal. 2.The case of the prosecution is that the deceased Laxmi Panda, the wife of the present appellant was missing from the house since the early morning of 9.4.1986. Attempt was made by the in-laws of the deceased to trace out her. But when no information could be gathered about Laxmi, the father of the informant proceeded to the house of the parent of the deceased in Chakradharpur Sasan under Nilagiri Police Station. It is alleged that around 5.00 P.M. information was received from one Kathia Nayak that the dead body of a woman floating in the waters of "Bebarta Pokhari) (Bebarta Pond). On getting this the informant Rabindra Nath Panda (P.W.1) the informant accompanied by his younger brother and many others proceeded to 'Bebarta Pokhari' and found the dead body of Laxmi floating in the waters of the pond. Suspecting that Laxmi has committed suicide, P.W.1 lodged a written report before the Officer-in-charge, Oupada Police Station vide Ext. 1. On receipt of the said F.I.R. (Ext. 1) Oupada Police registered U.D.F.I.R. No. 4 of 1986 and enquiry was taken up. The dead body of Laxmi was sent for post mortem examination. When the post mortem report (Ext. 4) was received by the O.I.C., Oupada Police Station it revealed that the death of the deceased might have occurred due to strangulation resulting in Asphyxia and on further query of the Medical Officer and on receipt of further opinion of the doctor that the fracture which was found on 3rd and 4th tracheal rings were sufficient in ordinary course of nature to cause death and those injuries were ante mortem in nature, the case was turned to be a case of murder and accordingly Oupada P.S.case No. 13 of 1986 under Section 302 of the IPC was registered and U.D.Case No. 4 of 1986 was closed. Investigation proceeded in Oupada P.S.Case No. 13 of 1986 which ultimately culminated in submission of charge sheet against the present appellant and his father Daitary Panda and mother Smt. Malli Panda and the trial commenced. I may mention here that the charge under Sections 498-A and 305 of the I.P.C. read with Section 34 of the I.P.C. were framed against all the three accused persons. The charge under Section 306 read with Section 34 of the I.P.C. could not be sustained against the accused persons including the present appellant because of the insufficiency of evidence. Similarly, accused Daitary Panda and his wife Smt. Malli Panda were also acquitted of the charge under Section 498-A read with Section 34 of the I.P.C. But the present appellant was found guilty under Section 498-A of the I.P.C. and was convicted thereunder. 3.The plea of the accused persons during trial was that of a complete denial of the alleged occurrence and it is their further plea that they have been falsely implicated in the case. 4.The prosecution in order to bring home the guilt of the accused persons had examined nine witnesses in all and of them P.W.1 is the informant. P.Ws. 2 and 3 are the seizure witnesses. P.Ws. 8 and 9 were the two I.Os. P.W.5 is the father of the deceased Laxmi. P.W.6 was a police constable of Oupada Police Station who had accompanied the dead body of the deceased to Nilagiri Hospital for post mortem. P.Ws. 4 and 7 are the two brothers of the deceased Laxmi. The accused persons declined to examine any witness in their defence. 5.Learned Additional Sessions Judge, Balasore on analyzing the evidence on record disbelieved the case of the prosecution under Section 306 of the I.P.C. against the accused persons so also the learned Additional Sessions Judge acquitted accused Daitary Panda and his wife Malli Panda from the charge under Section 498-A of the I.P.C. But in view of the evidence available on record believed the case of the prosecution under Section 498-A of the I.P.C. against the present appellant and convicted him thereunder and passed the impugned sentences. 6.I have heard the learned counsel appearing for the appellant as well as the learned Addl. Standing Counsel, Mr. Zafrullah at length. I have also very carefully and critically scanned the entire materials on record including the evidence and documents relied upon by the prosecution. 6.I have heard the learned counsel appearing for the appellant as well as the learned Addl. Standing Counsel, Mr. Zafrullah at length. I have also very carefully and critically scanned the entire materials on record including the evidence and documents relied upon by the prosecution. I find that the learned Additional Sessions Judge not only believed the evidence of the witnesses on record with regard to the torture meted out to the deceased by her husband, namely, the present appellant but also took into consideration the letters written by the deceased which have been marked as Exts. 6, 7 and 10 as well as the letters written by the present appellant marked as Exts. 8, 9 and 11. 7.P.W.1 the informant happens to be the brother of the present appellant. In his evidence P.W.1 has not breathed a word if the deceased was subjected to any torture by her husband, namely, the present appellant. He only simply deposed that the deceased was found missing from their house and later on they got the news that the dead body of Laxmi was floating in the waters of "Bebarta Pokhari" and on getting that news they all proceeded to that place and seeing the dead body of the deceased floating in the waters of the pond he proceeded to Oupada Police Station and lodged the report Ext. 1. It is the further evidence of P.W.1 that there was no talk regarding payment and receipt of any dowry at the time of the marriage of the deceased with his brother (the appellant) and they did not demand any dowry from the family members of the deceased Laxmi and Laxmi was having a very normal and cordial relationship with all the family members including her husband. There is nothing unusual in the evidence of P.W.1 when he did not support the case of the prosecution as he is the own uterine brother of the appellant and therefore would always be trying to save his own brother. P.W.2 deposed that he was one of the 'Bhadralok' (gentleman) in whose presence the marriage of Laxmi with Budha was finalized but there was no talk regarding dowry. P.W.2 deposed that he was one of the 'Bhadralok' (gentleman) in whose presence the marriage of Laxmi with Budha was finalized but there was no talk regarding dowry. It is also his evidence that there was no demand of any dowry after the marriage till Laxmi was missing from her in-laws house and he had never heard of any torture or cruelty being meted out to Laxmi by the family of her in-laws. Thus, P.W.2 has not supported the case of the prosecution regarding the alleged torture meted out to the deceased by the appellant and the demand of dowry. P.W.3 only speaks of seizure of some letters on production by Niranjan Sadangi and has proved the seizure list Ext. 3. But he does not say any other thing regarding the incident. Thus, he has not supported the case of the prosecution regarding the alleged torture meted out to Laxmi (the deceased) by the accused persons demanding dowry. 8.P.W.4 who is a cousin brother of the deceased in his cross-examination-in-chief deposed that Laxmi used to complain against the accused persons whenever she was coming to their house that the accused persons are abusing her as her father had not given one almirah, dress for her husband i.e. the present appellant and for not giving "UKHUDA BHARA'. In his cross-examination P.W.4 had candidly admitted that he had not stated before the I.O. that Laxmi visited their house whenever she was coming to her father's house and complaining that she was being abused by the present appellant, her mother-in-law and father-in-law as she had not brought almirah, 'Ukhuda Bhara' and dress for Budha (present appellant). 9.Very strangely enough P.W.4 who claims to be the own cousin brother of the deceased also deposed that Laxmi only complained against Budha and Malli Panda to have abused her. Thus, I have no hesitation in my mind to hold that the evidence of P.W.4 in his examination-in-chief that the accused persons were abusing Laxmi as her father did not give almirah, pair of dress to the present appellant and not giving 'Ukhuda Bhara' cannot be believed and relied upon as he did not state all those things before the I.O. when he was examined. P.W.5 is the father of the deceased and very surprisingly he has not at all breathed a word if her daughter namely the deceased Laxmi complained before him or his family members that she was being tortured or abused by the accused persons on demand of one almirah, dress for the accused Budha and 'Ukhuda Bhara'. The evidence of P.W.5 simply discloses that from a letter of the deceased Laxmi addressed to her friend Nini which was read over to him by Kuna, he could come to know that there was some misunderstanding between the deceased and the present appellant for which they were not in talking terms and he has proved the letter which was written in the hand of Laxmi as Ext. 6. P.W.5 has also introduced another story in his evidence that his son Kuna out of curiosity visited the house of the accused persons and when confronted to accused Budha as to why he had taken exception against his sister and the reason of their not in talking terms, accused Budha refuted such things and Kuna returned back to their house. Kuna has not been examined in this case as a witness. P.W.5 also in his evidence deposed that the deceased Laxmi had sent a letter through her brother Debendra which he has proved as Ext. 7. The contents of letter disclosed that accused Budha having suspected the chastity of Laxmi (the deceased) had subjected her to physical torture. It is also seen from the evidence of P.W.5 that accused Budha had written a letter from Calcutta which was addressed to Laxmi and the same has been marked as Ext. 8. P.W.5 also deposed that Laxmi his daughter had sent a letter requesting him to give some money for purchasing of one almirah and he has proved the said letter as Ext. 10 and accused Budha had also requested him to give Rs. 3000/- for opening a shop and the said letter has been marked as Ext. 11. In his cross-examination P.W.5 has categorically deposed that the relationship between Laxmi and Budha was cordial at the time of son's marriage. Thus it is seen from the evidence of P.W.5 that the deceased Laxmi had never complained about any torture meted out to her by the accused persons either on demand of almirah or for opening of a shop. In his cross-examination P.W.5 has categorically deposed that the relationship between Laxmi and Budha was cordial at the time of son's marriage. Thus it is seen from the evidence of P.W.5 that the deceased Laxmi had never complained about any torture meted out to her by the accused persons either on demand of almirah or for opening of a shop. I have gone through the letters written by the deceased Laxmi which have been marked as Exts. 6, 7 and 10 so also the letters of the accused Budha addressed to the deceased Laxmi marked Ext. 8 and the letter of the appellant addressed to his father-in-law marked Ext. 11. It is seen from the evidence of P.W.5 that Ext. 6 is the letter of Laxmi addressed to her friend Nini. It was sent through Kuna, the youngest son of P.W.5. Ext. 6 contains nothing about any ill-treatment meted out to Laxmi by the accused persons including her husband. It simply shows that the appellant had stopped talking to Laxmi for 10 days. Ext. 7 is stated to be another letter of Laxmi where she had indicated to her mother that suspecting her chastity and immoral character she was being assaulted by her husband but Ext. 10 is a letter written by the deceased to her father where she had requested he father to give her financial assistance for purchasing one almirah. But she had never stated anything in the said letter if she had written such letter because of the torture meted out to her by her husband and in-laws. But on the other hand she had mentioned that she was facing difficulties in keeping the articles without an almirah and therefore desires to purchase one almirah. Ext. 7 further discloses that she was living happily by the grace of God and there was no misunderstanding between her and her husband that she was not subjected to any physical torture. The said letter Ext. 10 further reveals that the deceased had requested her father to give her brother in marriage with the sister of the present appellant. Thus from the contents of Ext. 10 one can gather that the deceased was quite mentally happy in the house of her in-laws. Ext. The said letter Ext. 10 further reveals that the deceased had requested her father to give her brother in marriage with the sister of the present appellant. Thus from the contents of Ext. 10 one can gather that the deceased was quite mentally happy in the house of her in-laws. Ext. 9 the letter addressed by the present appellant to his wife shows that he had forgotten everything and he had excused the deceased and expressed his desire to live happily with the deceased and had cherished the well being of the deceased and had sent clothing and money. Ext. 11 is the letter of the appellant addressed to P.W.5 the father-in-law seeking financial assistance of Rs. 3000/- as he intended to open a shop. 10.From the contents of the letter of the deceased i.e. Ext. 10 where the deceased had requested her father to give money so that he can purchase one almirah it can never be termed to be illegal and cannot be connected with alleged ill-treatment meted out to the victim. Similarly, Ext. 11 the letter written by the present appellant to his father-in-law seeking financial assistance to start a business i.e. opening of a shop can never tantamount to a demand of dowry since requiring financial assistance for starting a business and a request to that effect by the appellant cannot come within the purview of Section 498-A of the IPC as there was absolutely no evidence on record to show that on demand of almirah and cash for opening a shop by the present appellant the deceased was subjected to torture by the appellant. In that context, reliance can be placed on a judgment of the Apex Court as reported in (2007) 36 OCR (SC) 398, Appasaheb and another v. State of Maharashtra. Very unfortunately, the learned Additional Sessions Judge convicted the present appellant basing upon the letters of the deceased as well as the letter of the appellant addressed to his father-in-law seeking financial assistance. The conclusions arrived at by the learned Additional Sessions Judge cannot be sustained in the eye of law. Very unfortunately, the learned Additional Sessions Judge convicted the present appellant basing upon the letters of the deceased as well as the letter of the appellant addressed to his father-in-law seeking financial assistance. The conclusions arrived at by the learned Additional Sessions Judge cannot be sustained in the eye of law. 11.It is seen that P.W.7 another son of P.W.5 and the brother of the deceased has introduced a new story while deposing before the Court that during his visit to the house of his sister seeing Laxmi depressed to his query Laxmi disclosed that she was being assaulted by her husband and mother-in-law and was subjected to torture as she could not bring more money for opening of a shop and for purchasing of one almirah. P.W.7 deposed that Ext. 7 was sent by her sister through him. In his cross-examination he has categorically admitted that he did not report about the demand of further dowry in shape of cash by the accused persons from Laxmi and about the assault on her. The evidence of P.W.7 is completely different from the evidence of his father P.W.5 as P.W.5 nowhere in his evidence ever deposed that Laxmi to have disclosed before P.W.7 that she was being subjected to torture and assault by the present appellant and by her mother-in-law as she failed to bring money for purchasing one almirah by the appellant and for opening of a shop. On the other hand P.W.5 deposed that from Ext. 7 he could come to know that Laxmi was subjected to physical torture by the present appellant as he was suspecting her chastity. The learned Additional Sessions Judge failed to take note of the inconsistency in the evidence of P.Ws. 4, 5 and 7. The discrepancies and inconsistencies that appear in the evidence of P.Ws. 4, 5 and 7 strikes at the very root of the case of the prosecution. Similarly, there is another factor which cannot be lost sight of is that from the evidence of P.Ws. 4, 5 and 7 it is seen that though they got the news that the dead body of Laxmi floating in the waters of 'Bebarta Pokhari' but on getting the said information they did not proceed to the spot nor reported about the incident at Oupada Police Station. 4, 5 and 7 it is seen that though they got the news that the dead body of Laxmi floating in the waters of 'Bebarta Pokhari' but on getting the said information they did not proceed to the spot nor reported about the incident at Oupada Police Station. 12.P.W.9 who is the main I.O. he has categorically stated that from the U.D.Case he found none of the witnesses to have stated anything regarding the harassment and alleged torture meted out to Laxmi by any of the accused persons and the I.O. P.W. 9 has also stated in his evidence that P.W.5 did not state before him to have learnt from his daughter that accused Malli and Budha were directing her to get the price of one almirah, dresses for Budha and about the suspicion of the accused Budha about the chastity of his daughter and subjecting her daughter to torture. P.W.9 also deposed that P.W.7 did not state before him that accused Malli and Budha were assaulting Laxmi and forcing her to get more money from her father for accused Budha to open a shop and for purchasing one almirah. 13.Thus, from the aforesaid analysis of the evidence on record, the irresistible conclusion that can be arrived at is that the prosecution has failed to bring home the charge under Section 498-A of the IPC against the present appellant beyond all reasonable doubt. The evidence on record do not inspire any confidence to maintain the order of conviction and the impugned sentences. Accordingly, the appeal is allowed and the order of conviction and impugned sentences passed by the learned Additional Sessions Judge, Balasore are set aside. Appeal allowed.