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2014 DIGILAW 286 (ORI)

State of Orissa v. Harekrishna Panda

2014-04-23

D.DASH

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JUDGMENT The State is called in question the order of acquittal passed by the learned Asst.Sessions Judge, in S.T. Case No.48 of 1997 acquitting the respondent 498-A/306 of I.P.C. 2.Case of the Prosecution in short is that the respondent married the deceased on 14.04.1983 and wife of the respondent died on account of torture meted out at her by the respondent and his relation in connection with the demand dowry. It is also his stated that the respondent and his relation used to cause both mental and physical torture upon the deceased which ultimately led to her death by commission of suicide on 27.10.1989 which is within a period of 7 years from the marriage. The case of the defence is complete denial. According to the case of the respondent, the deceased might have committed suicide on account of her weak mental state being not able to conceive and give delivery to a child. Information about the same being lodged at the police station, necessary case was registered and finally on completion of investigation charge-sheet being submitted, the respondents ultimately stood charged for offence under Section 498-A and 306 of I.P.C. and faced the trial. 3.The Trial Court having analyzed the evidence of 18 witnesses examined from the side of the prosecution and also two witnesses examined from the side of the defence, ultimately arrived at a conclusion that the prosecution has not been able to establish the charge against the respondents. In course of discussion of the evidence, the Trial Court has first found that the death in the present case has not taken place within a period of seven years of marriage. For that reason the presumption as available under Section 113(A) of the Evidence Act was not found to have been attracted. Next with regard to the demand and torture, the evidence pioltted by the prosecution has not been found to be sufficient. The commission of suicide and ultimate death is thus being held to be attributable to the respondent, the Trial Court has finally passed the order of acquittal. 4.Learned Counsel for the State submits that the appreciation of evidence in the present case is not proper. It is also his submission that evidence on record is sufficient to hold that death in the present case has taken place within a period of seven years of marriage between the Pravati and the respondent. 4.Learned Counsel for the State submits that the appreciation of evidence in the present case is not proper. It is also his submission that evidence on record is sufficient to hold that death in the present case has taken place within a period of seven years of marriage between the Pravati and the respondent. So according to him, it having been proved that the death has taken place on account of commission of suicide, the presumption as available under Section 113-A of Evidence Act, ought to have drawn. The evidence on record according to him do not show any such circumstances and the defence has also not led any evidence so as to rebut such presumption. Therefore, it is his submission that the Court below ought to have held the respondent guilty for commission of offence under Section 306 of I.P.C. It is also his submission that the evidence on record is sufficient for bringing home the charge under Section 498-A of I.P.C. According to him the witnesses have clearly stated with regard to the demand and torture and there was no justification on the part of the Trial Court to discard such evidence. So, he urges that the order of acquittal is liable to be interfered with. 5.Learned counsel for the respondent on the other hand supports the finding rendered by the Trial Court as based on proper appreciation of evidence. According to him the Trial Court by assigning good and justifiable reason has rightly refused to accept the evidence of the prosecution and therefore, the order of acquittal being based on such finding arrived at on proper appreciation of evidence is unassailable. 6.The settled position of law regarding the powers to be exercised by High Court in an appeal against the order of acquittal is that while High Court has full powers to appreciate the evidence upon which an order of acquittal is based and to act on its own thereof, it will not do so lightly and will be slow to reverse an acquittal, except for strong and compelling reasons when it differs from that of the trial Court. The paramount consideration in the matter is to avoid miscarriage of justice. The paramount consideration in the matter is to avoid miscarriage of justice. Of course where two views are possible and the trial Court has taken a reasonable view and acquitted the accused, the High Court in appeal cannot interfere with such finding but when there is perverse finding based on erroneous appreciation of evidence and a serious miscarriage of justice has been caused, the High Court has ample power to reverse that finding. 7.Keeping in rival submission and position of laws as regards the scope of interference in mind let me first of all examine the evidence with regard to the factum of death due to suicide as per prosecution case, if has taken place within a period of 7 years of marriage or not. It is stated that the marriage between the respondent and Pravati had taken place six years before. Next stands the evidence of P.W.2, the brother of the deceased, who has deposed that the marriage had taken place on 14.04.1983. On this score the defence has challenged by leading evidence both oral and documentary. D.W.1 in his evidence has stated that the marriage had taken place in the Baisakha of the year 1982. He claims himself to be the priest to have performed the marriage between the two. Next comes the evidence of D.W.2 who is the father of the respondent and he has stated the date of marriage to be 18.04.1982. From the side of the defence one marriage invitation card has been also admitted in evidence and marked Ext. C which reveals the date of marriage between the two to be 18.04.1982. Such evidence have not been shaken. Thus there appears no reason to entertain doubt the said evidence and same appears to be acceptable. So the death is not found to have taken place within a period of seven years of marriage. Therefore, I do not find any reason to differ with the Trial Court’s view in that regard and so also the presumption available under Section 113-A of the Evidence Act does not get attracted in this case. 8.Next, coming to evidence of prosecution as regards demand and torture, it is seen that P.W.1 is none other than the brother-in-law of the deceased. 8.Next, coming to evidence of prosecution as regards demand and torture, it is seen that P.W.1 is none other than the brother-in-law of the deceased. He has simply stated that when in the year 1989 the respondent and his wife had come to their houses, wife of the present respondent was expressing her unhappiness because she had no issue. The case of the defence is that the deceased was remaining in morrows as she was not having any issue despite her treatment, there being always the failure. This witness being a relation of the deceased has not stated anything about the demand and any torture in any form by the respondent and other members of the family. P.W.2 who is the brother of the informant while stating that there was no demand of dowry at the time of marriage between the respondent and Pravati his sister, has stated that when once they had come to his house, the respondent had demanded a motor-cycle and had stated that he would no more come if the same was not met. He has further stated that one night the respondent had assaulted Pravati which he had heard from his wife and on another occasion, when they had come to his house, there was a demand of Rs.40,000/- for the purpose of purchase of a Tractor. In cross-examination the witness stated that Pravati had never told him about any assault on her and that the respondent had never demanded dowry from him and Pravati had not written any letter intimating about the said demand of a motor-cycle by the respondent. So, evidence of these two witnesses are not found to be sufficient to establish the fact that there was a demand from the side of the respondent and for non-fulfillment of the same, there was torture upon the deceased beyond reasonable doubt. In view of such state of affairs in the evidence, this Court finds no such infirmity in the appreciation of evidence as made by the Trial Court and also with the ultimate finding of acquittal so as to be interfered in this appeal. 9.In the result the appeal stands dismissed. Appeal dismissed.