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2014 DIGILAW 352 (ORI)

MURARI PRASAD PANDA v. STATE OF ORISSA

2014-06-17

D.DASH

body2014
JUDGMENT : D. DASH, J. 1. The appellants having been convicted for offences under Sections 304(B)/ 201/ 34, IPC by the learned Assistant Sessions Judge, Sonepur in S.C. No. 38/3 of 1991 have preferred this appeal. Consequent upon the conviction as above, the appellants have been sentenced to undergo rigorous imprisonment for a period of 10 years for offence under Section 304(B), IPC and for a period of two years and six months for offence under Section 201, IPC with the stipulation that the sentences are to run concurrently. Prosecution case is that Premasila, the daughter of Govinda Panda had married appellant No. 3, the son of appellant Nos. 1 and 2 and brother of appellant Nos. 4 and 5 in the year 1987. It is stated that at the time of marriage, articles were given to Premasila which they had decided looking to their financial capability. It is also stated that some articles were given to the son-in-law, the appellant No. 3. 1.1 After the marriage, Premasila, the daughter of Govinda Panda (P.W. 8) stayed in her marital home, when it is stated that she was being taunted for not bringing a Luna (motor bike) as well as more gold ornaments. The torture gradually ascended from that point of time onwards and that is said to be meted out at the deceased in various ways. It is further alleged that the said torture took an aggravated form after the marriage of younger sister of Premasila, when the appellants started insisting Premasila to bring more gold ornaments and one moped (Luna) by comparing with the articles given to her younger sister. It is said that Premasila had expressed that it was not within the capability of her father to meet such demand being advanced from the side of the appellants. The appellants then started assaulting her, which in turn was informed by Premasila to her parents and other family members. On 19-8-1990 Premasila was abused and assaulted for non-fulfillment of the above stated demand. Thereafter, she was finally driven out of the house and left at one end of her father's village giving threat that unless she would bring those articles, she should not return to their house. Govinda Panda, P.W. 8 and his brother having come to know all these from Premasila, made arrangements to send back Premasila on the next day at her in-laws place. Govinda Panda, P.W. 8 and his brother having come to know all these from Premasila, made arrangements to send back Premasila on the next day at her in-laws place. Uncle of Premasila (P.W. 1) and another co-villager (P.W. 2) took Premasila to the house of her in-laws and left her there with a request not to further ill-treat Premasila in such a manner any more and not to advance the demand of more dowry, while further expressing that it was beyond their means to be fulfilled. It is further stated that during then, the appellants questioned as to how, more valuable presents could be given to the younger sister of Premasila when financial constraint was being projected before them for non-fulfillment of their demand as made and shown as the cause and reason standing on the way. 1.2 On 23-8-1990, message came to be received through one Bhimsen Panda about the illness of Premasila in her in-laws place. No sooner did the parents of Premasila receive such information, they rushed to the father-in-laws house of the deceased at village Rajanpalli. To their utter surprise, they found Premasila lying dead; appellant No. 1 loitering and appellant No. 2 was then crying. It was then learnt that she died because of consumption of poison. They made a request to put on hold the cremation of the dead body of their daughter till arrival of their near and dear and other relations. However, the appellant No. 1 and his other relations then forcibly restrained Govinda Panda the father of the deceased and forced facilitation of the carriage of the dead body to the cremation ground where after the cremation is said to have been made in hot haste. P.W. 1 reported the matter to the police and that led to the registration of the case and necessary investigation. Finally, the appellants faced the trial for the offence under Section 304(B)/ 201/ 34, IPC whereas another co-villager Radrakhya Prasana Karmi also faced the same trial having stood charged for the offence under Section 201, IPC. He having been convicted for the said offence was sentenced to undergo rigorous imprisonment for a period of two and half years and joined the present appellants in filing this appeal. However, he having died during the pendency of appeal, the appeal has abated against him. 2. He having been convicted for the said offence was sentenced to undergo rigorous imprisonment for a period of two and half years and joined the present appellants in filing this appeal. However, he having died during the pendency of appeal, the appeal has abated against him. 2. The appellants during the trial have taken a plea that deceased was never given any taunting remarks and they had never made any demand of dowry as stated. She was never tortured on account of non-fulfillment of demand of dowry or during advancement of the said demand of dowry. It is also their case that deceased did not die having been administered with poison. Although the dead body was cremated with the consent of P.W. 1, at a later point of time with change of mind and being highly aggrieved by the death, without understanding the reasons that death was due to diarrhoea and vomiting without any involvement of these appellants therein in any way, these appellants have been arraigned in the case for being unnecessarily harassed. 3. Prosecution examined thirteen witnesses when the defence have examined two. Important witnesses for the prosecution are P.W. 1 the informant, the paternal uncle of the deceased and P.W. 8 who is the father of the deceased. The investigating officers have been examined in the case during the trial as P.Ws. 12 and 13. The trial Court after going through the evidence of all these witnesses as well as other documentary evidence admitted from the side of the prosecution and also looking at the evidence adduced by the appellants and upon their analysis has arrived at the following conclusions:-- (a) Deceased died within seven years of marriage; (b) death was not under normal circumstances and not for the cause and reason as suggested by the defence; (c) the appellants were treating deceased with cruelty by torturing her with a view to coerce the demand of dowry from her father; (d) deceased was also subjected to cruelty soon before her death; and (e) that the appellants have, in order to cause disappearance of the evidence and not to leave any scope to ascertain the cause of death showing utmost promptitude, in a hot haste completed the cremation. 4. 4. In view of the above findings on the factual aspects of the case, the trial Court has held the prosecution to have established its case under Section 304(B)/ 201/ 34, IPC against the appellants. Having said so, conviction for the said offences has been recorded and consequently order of sentence as above has followed which are now impugned in this appeal. 5. Learned counsel for the appellants submits that the evidence let in by the prosecution on proper analysis and being appreciated in proper perspective ought not to have been found to be sufficient to hold as regards the factum of exerting of cruelty upon the deceased at any time after the marriage till her death. He also submits that the prosecution has not proved beyond reasonable doubt as regards death of Premasila to have taken place otherwise than under normal circumstance and simply from the evidence that the dead body was cremated without waiting for other relations of P.W. 8, the father of Premasila, to arrive is not enough to conclude that while further placing that said evidence is not believable and rather it was with knowledge and consent of parents of Premasila. Therefore, he contends that the presumption as drawn under Section 113(B) of the Evidence Act is based on erroneous approach as well as appreciation of evidence. According to him, the foundational facts required to be established for drawal of such presumption under the said section have not been established by leading clear, cogent and acceptable evidence. He further highlights that the finding of the trial Court that the death of Premasila was not under normal circumstances is also erroneous as the conduct of the appellants when viewed with conduct of the P.Ws. 1 and 8 clearly negate such a case. It is his further submission that all these allegations with regard to demand of dowry, torture and lastly the cremation of the dead body against the wish of the father of the deceased said to have been completed by way of force are not established beyond reasonable doubt by the prosecution. So, he contends that the trial Court has erred both in law and fact by convicting the appellants for the above offences and sentencing them thereunder. 6. Learned counsel for the State, on the contrary, supports the findings of the trial Court. So, he contends that the trial Court has erred both in law and fact by convicting the appellants for the above offences and sentencing them thereunder. 6. Learned counsel for the State, on the contrary, supports the findings of the trial Court. It is his contention that the findings of the trial Court are based on sound reasoning as culled out from the clear, cogent and acceptable evidence. According to him, the trial Court in view of evidence on record has rightly drawn the presumption under Section 113(B) of the Evidence Act and the same is absolutely with the right approach as all the required fundamental facts for the purpose have been established through the evidence of those witnesses, who are wholly reliable. The said presumption having not been rebutted by required evidence being tendered from the side of the appellants, no infirmity can be found with the order of conviction in the facts and circumstances of the case as also with the order of sentence. Thus, he contends that the appeal sans merit. 7. Keeping the above rival submission in mind, it is now necessary to have a critical look at the evidence of the prosecution in judging the sustainability of the findings of the trial Court with regard to the charge under Section 304-B and 201 of IPC. 7.1 So far as conviction for the offence under Section 304-B of IPC is concerned, the undisputed fact is that Premasila died within seven years of her marriage. The trial Court first of all has gone to find out as to whether her death has taken place otherwise than under normal circumstances or not. But while approaching the evidence to ascertain the said factual aspect as it appears the plea of defence as advanced has been put to test. Considering the acts and conducts of the appellants as culled out from the prosecution evidence, the trial Court has first of all held the plea of the appellants in that regard to have not been established. Then it has jumped to the conclusion that the acts and conducts displayed by the appellants show their motive and intention to do away with all evidence of commission of unnatural death. In view of that the trial Court has gone to hold that the death was otherwise than under normal circumstances. Then it has jumped to the conclusion that the acts and conducts displayed by the appellants show their motive and intention to do away with all evidence of commission of unnatural death. In view of that the trial Court has gone to hold that the death was otherwise than under normal circumstances. 7.2 Next going to the evidence of prosecution relating to the demand and torture, having accepted the evidence of prosecution in that regard, the trial Court appears to have drawn the presumption under Section 113(B) of the Evidence Act side by side finding that cruelty was being meted out at the deceased by the appellants soon before her death. 8. At this stage, it is felt apposite to notice relevant statutory provision and discuss the legal position on the subject arising out of the legislative changes introduced in the Penal Code to combat menace of dowry deaths. "Sec. 304-B, IPC which deals with the offence of dowry death provides, inter aha, that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death. On a bare reading of the section it is manifest that the ingredients to be established are; (i) that the death of the woman was caused by any burns or bodily injury or occurred otherwise than under normal circumstances within seven years of her marriage; and (ii) that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry." So as to attract the above offences, the second limb of the explanation contained in Section 498-A of IPC stands as the requirement of the proof that it was so meted out soon before the death. The presumption under Section 113(B) of the Evidence Act is permissible to be raised only on proof of the foundational fact as regards (a) death is of within seven years; (b) death being otherwise than under normal circumstances; and (c) cruelty being meted out at the deceased soon before the death. The above facts being established, the presumption arises. Then it shall be presumed that such was the dowry death. 9. It is the settled principle of law that the prosecution has to establish its case beyond reasonable doubt. So, above noted foundational facts are first of all required to be proved by the prosecution. Of course the falsity of the case of the defence may lend assurance to the finding otherwise available from the prosecution evidence but that itself is not enough to render the finding in affirmative as regards the particular fact or facts. In the instant case, the dead body being cremated, the prosecution has not been able to place direct evidence as regards cause of death and to show whether it was under normal circumstances or not. Thus in such situation, the circumstances established by the evidence of the prosecution are required to be searched for. So, endeavour has to be made in that regard. 10. The star witness in the prosecution in this connection is P.W. 8 who is the father of the deceased. He has stated that on his arrival at the in-laws place of her daughter, Premasila, he found Premasila to be lying dead on the verandah of the house, when appellant No. 1 (father-in-law) was loitering outside the house and the appellant No. 2 (mother-in-law) was crying. He has further deposed that the face and lips of the dead body had then turned black. It is his further evidence that he learnt that her daughter died by taking poison. So, he asked the appellant No. 1 about the treatment if any, had given to his daughter, when the reply came that it was so provided as was so available in the village. It is not stated by P.W. 8 that other than finding face and lips of his daughter to have been blackened, there was any such other suspicious feature such as injuries like scratch mark, abrasion etc. on any part of her body or even at least on her face. It is not stated by P.W. 8 that other than finding face and lips of his daughter to have been blackened, there was any such other suspicious feature such as injuries like scratch mark, abrasion etc. on any part of her body or even at least on her face. Mother of the deceased as per evidence of P.W. 8 had accompanied during then. However for the reason best known to the prosecution, she has been withheld from the witness box and there stands no such explanation. It is the evidence of P.W. 8 that he immediately disclosed about the incident to his brother on their way back home. That brother has been examined as P.W. 1 who is the informant of the present case. This P.W. 1 has stated that P.W. 8 disclosed before him to have found the face and lips of his daughter turned blue and that he heard some villagers whispering regarding the unnatural death of Premasila. This part that the villagers were whispering about the unnatural death of Premasila is neither deposed to by P.W. 8 nor it finds mention in the FTR lodged by P.W. 1. Rather (in the FIR, it is stated that P.W. 8 and his wife on their way to the house of the appellant got the information about the death of their daughter due to administration of poison. So, when P.W. 1 says about getting information from P.W. 8 that he had known before reaching the house of the appellant about the death being due to administration of poison, P.W. 8 is conspicuously remaining silent on that score. 11. Next when P.W. 1 in the FIR (Ext. 1) has written that by the time P.W. 8 and his wife arrived in the house of the appellant already preparation for the purpose of carriage of the dead body to the cremation ground was going on, the same is not the evidence of P.W. 8. In such state of divergence in the evidence of P.W. 1 and 8, non-examination of wife of P.W. 8 matters and reasonable inference in the such state of affair in evidence gets drawn that had she been examined the truth would have unfurled. In such state of divergence in the evidence of P.W. 1 and 8, non-examination of wife of P.W. 8 matters and reasonable inference in the such state of affair in evidence gets drawn that had she been examined the truth would have unfurled. Then coming to the conduct of the appellants, it is stated by P.W. 8 that appellant No. 3 holding his hands pulled out and another God relation of appellant No. 1 dragged him outside and told that his daughter would no more be restored alive and so there remains no use of lamenting over the loss. It is further stated that thereafter, the dead body was carried away to the cremation ground. P.W. 1 is directly stating that the appellant No. 1 and another dragged P.W. 8 outside from the house and directed other members to carry the dead body for cremation. He is not stating about the conversation between P.W. 8 and that God relation which has been stated by P.W. 8 in specific terms. Neither P.W. 1 nor P.W. 8 state anything about the then conduct of the appellants. It may be mentioned here that appellant No. 4 is one of the brothers of the father-in-law of the deceased. No other co-villager of the village of the appellants have been examined nor any attempt in that regard has been taken. P.W. 8 in his statement before the I.O., (P.W. 12) has not stated that he found the face and lips of Premasila to have turned black/blue at the time when he saw his daughter lying dead and it has been proved through P.W. 12. So, the only suspicious feature that P.W. 8 deposes to have marked appears to be an improvement and in the facts and circumstances of this case, the same cannot be brushed aside as a minor contradiction. P.W. 1 also admits to have not stated so before P.W. 12 as regards the facts about the hearing of the whispering going on in the village regarding the unnatural death of Premasila. None of the close door neighbours of the appellants have been examined to bring in further materials in that regard as also any other conduct of appellants. Fact remains that relations of the appellants namely, Bhima Panda had gone to inform about the seriousness of Premasila to P.W. 8. None of the close door neighbours of the appellants have been examined to bring in further materials in that regard as also any other conduct of appellants. Fact remains that relations of the appellants namely, Bhima Panda had gone to inform about the seriousness of Premasila to P.W. 8. This rather shows that they were not in a hot haste for cremating the dead body and had it been so intended, no information would at all have been sent and they would not have waited any more till arrival of the parents of the deceased and just giving the information would have proceeded for cremation. P.W. 2 is remaining silent with regard to all these above aspect. P.W. 7 has deposed to have immediately gone hearing cry to the house of the appellants when he found Premasila lying dead. Cumulatively viewing the entire evidence let in by the prosecution and upon their analysis, I do not find that the conducts of the appellants were such so as to stand as the circumstance in proving the fact that the death of Premasila was otherwise than under normal circumstances. The defence has set up a case that deceased died due to vomiting and dysentery. These are not abnormal features also in case of a person taking poison. The trial Court has gone to say that there is no evidence on record to show at the time that there was widespread cholera epidemic of which the deceased was victimized. The appellants having not provided expert medical treatment and the absence of any vomited material on the bed and floor have been taken as circumstances to hold the plea of the defence as totally false. However, it is seen from Ext. 4 that in course of investigation, there was a seizure of two kanthas containing vomiting substance and also one saree with stains said to have been containing vomiting substance though during chemical examination neither any insecticidal nor alkaloidal and metallic poison could be detected. In view of all these, I am not in a position to accord the seal of approval to the finding of the trial Court that it is established that death of Premasila was otherwise than under normal circumstances. In that view of the matter, the conviction for offence under Section 304-B of IPC appears to have not been based on proper appreciation and upon due examination of evidence. In that view of the matter, the conviction for offence under Section 304-B of IPC appears to have not been based on proper appreciation and upon due examination of evidence. Accordingly, the order of conviction of the appellants for commission of offence under Section 304-B of IPC is liable to be set aside. So far as the conviction of offence under Section 201 of IPC is concerned, in view of the above factual finding, the cremation of dead body in the facts and circumstances would not amount to an offence under Section 201 of IPC. In the result, the appeal stands allowed. The judgment of conviction and the order of sentence are hereby set aside and the appellants are acquitted of the offences for which they stood charged.