Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 539 (ORI)

SANJIB SAHU v. STATE OF ORISSA

2014-08-27

S.K.MISHRA

body2014
JUDGMENT : S.K. Mishra, J. 1. In this appeal, the convicts in S.T. Case No. 88/4 of 2008 of the Court of learned Addl. Sessions Judge, Kuchinda assail the judgment dated 10.12.2010 convicting them for the offence under Sections 498-A, 304-B and 406/ 34 of the IPC read with Section 4 of the DP. Act. 2. The case of the prosecution in brief, is that informant-Saroj Barik gave his sister-Dolly @ Upama Barik in marriage to the accused, Sanjib Sahu. The marriage was solemnized on 18.02.2005. After two months of marriage, the accused-Sanjib along with co-accused persons, i.e. his parents and sisters inflicted physical and mental torture to his sister on demand of dowry of Rs. 1,00,000/-. It is alleged that when such torture became unbearable on the part of Upama, she came back to her father's house during August, 2006. It is further alleged that in the month of August 2006, the accused-Danesh Sahu and Binodini Sahu, parents of the Sanjib went to the house of the deceased and committed before the village gentlemen that they will never ill-treat Upama in future. Relying on the assurance given by the village gentlemen, Upama went to her matrimonial house. On 20.08.2006, Upama along with her husband came to the informant's house. They returned to their marital house on 22.08.2006. Then, the informant received information that on their way back from the house of the informant at Nuadihi to their house at village-Bandhpali, inside Gunduruchuan jungle, Upama met her death. On receipt of such information, the informant arrived at the spot, but found the dead body of upama had already been shifted from the spot. On his query, it was ascertained that it was a case of murder committed by the accused. Therefore, he submitted a written FIR before the OIC, Kuchinda Police Station, who registered it as Kuchinda P.S. Case No. 140/2006 and took up investigation. After completion of investigation, he submitted charge sheet against the accused persons under Sections 498-A, 304-B and 406/ 34 of the IPC read with Section 4 of the D.P. Act. 3. The accused persons took the plea of complete denial of the incident. Accidentally, they stated that Upama Barik @ Sahu died due to motor cycle accident. Consequent upon denial of the prosecution gravamen by the defence, the learned Addl. Sessions Judge, Kuchinda coined four points to be determined in this case 4. 3. The accused persons took the plea of complete denial of the incident. Accidentally, they stated that Upama Barik @ Sahu died due to motor cycle accident. Consequent upon denial of the prosecution gravamen by the defence, the learned Addl. Sessions Judge, Kuchinda coined four points to be determined in this case 4. In order to prove its case, the prosecution examined 16 witnesses on its behalf and relied on documentary evidences, which have been marked as Exhibits 1 to 16. Neither oral evidence nor documentary evidence has been adduced on behalf of the defence. It is further apparent from the records that after examination of the Investigating Officer, P.W.15, the prosecution case was closed and the statements of the accused persons were recorded under Section 313 Cr.P.C. The case was adjourned for defence evidence. However, the prosecution made a motion to examine one Laxman Barik (P.W.16). After closure of further examination, the accused statements have been recorded and the defence was given chance to adduce evidence but they did not choose to avail the opportunity of leading defence evidence. 5. In this case, P.W.1 is relied upon by the prosecution as eye-witness to the alleged occurrence. P.Ws. 2 and 3 are brother and mother of the deceased and have been examined to prove different aspect of the case like proof of regarding demand of dowry torture meted out to the victim etc. P.Ws. 4 and 7 are the independent witnesses and the neighbour of the informant. P.W.6 is a post occurrence witness. P.W.8 is a member of the village gentries with whose intervention Upama had agreed to return her matrimonial house. P.W.5 is a witness to the alleged seizure. P.W.9 is the cousin of the informant on whose information the family concluded that the death of Upama was a case of dowry death. P.Ws. 10 and 12 are the doctors, who conducted post mortem examination on the dead body of the deceased. P.W.11 is another doctor, who examined the accused-Sanjib P.Ws. 13, 14 and 15 are the I.Os. P.W. 16 is the father of P.W.10 and common relation of the parties. P.W.16 has stated that he has given his statement before the two police officers on two occasions. 6. P.W.11 is another doctor, who examined the accused-Sanjib P.Ws. 13, 14 and 15 are the I.Os. P.W. 16 is the father of P.W.10 and common relation of the parties. P.W.16 has stated that he has given his statement before the two police officers on two occasions. 6. The prosecution alleges that the offences under Sections 498-A, 304-B and 406/ 34 of the IPC read with Section 4 of the D.P. Act have been committed by the accused and charge-sheet has not laid for the offence under Section 302 of the IPC. The eye-witnesses, namely P.W.1 has stated that he has seen the commission of murder by the appellants. This being an important aspect is taken up at the earliest. An examination of the evidence of P.W.1 reveals that his name is Isaf @ Swarna Pana @ Loha. He happens to be the son of Mahendra Pana and is a resident of Ulunda of Mahulpali Police Station in the district of Sambalpur. He stated that three years back in the month of 'Bhadrab', the occurrence took place on Tuesday and that on the previous day, i.e. Monday he had gone to the house of Ram (his sadu) situated at village Gudurapada. On the next morning, he was coming to the house of his sister-Sita situated at village Gunduruchuan by his cycle and since it was raining, he took shelter under a Sal 'tree i.e. Mahijuria. The witness has stated that while he was standing under Sal tree, he found that accused-Sanjib was going with a lady on a motor cycle. The said accused stopped the motor cycle at the stony area and an old man came out. The witness identified the old man to be accused-Danesh Sahu. On seeing the old man, the witness stated that the lady removed her sleepers and offered 'PRANAM' to the accused Danesh by bending down. He further stated that while the lady offered 'PRANAM', the accused-Danesh pressed her beck by a napkin and then another man came out near the bush and they throttled her neck and while she was objecting, her mouth was gagged by that napkin. The victim was dragged to a distance of about 15 cubits where there was stony surface. He further stated that while the lady offered 'PRANAM', the accused-Danesh pressed her beck by a napkin and then another man came out near the bush and they throttled her neck and while she was objecting, her mouth was gagged by that napkin. The victim was dragged to a distance of about 15 cubits where there was stony surface. They laid the victim facing downward over the stony surface and dealt blows on the back side of the head, of the deceased by means of a stone, as a result of which, she died. The witness being afraid for his life left the spot in a clandestine manner. After two days, the matter was published in the News Paper. While discussing the matter between the labourers, the witness stated that he disclosed that such news is correct since he has seen the incident. He disclosed it before the co-labourers like Gula and others whose name he could not remember. One of such co-labourers disclosed the fact before Laxman Barik, who is a relation of the deceased. Laxman Barik met the witness in the evening and got the matter confirmed. Then, he was examined by the police. He further stated that he know the informant. The witness has been examined by the defence at length. He has stated in the cross-examination that he was examined by the police after 5 days of occurrence. He denied the defence suggestions that he has not stated before the I.O. that accused-Danesh to whom the said lady offered her 'PRANAM' by bending down; and that she was dragged by that old man; and that another man came out of the bush; and that they gagged the mouth of the victim by napkin and dragged her to a distance of about 15 cubits; and that they strangulated the neck of that lady and they made her lie on the ground; and that she was assaulted on the backside of her head; and that the lady was floundering; and that she met her death at the spot; and that being frightened he left the spot in clandestine manner; and that after the paper publication, he disclosed his knowledge before the co-villagers; and that Laxman Barik came to his house and got the matter confirmed. A cross reference to the evidence of P.W.13 reveals that he has not examined the present witness nor recorded his statement under Section 161 C.P.C. This witness has not been examined by the P.W.13. P.W.15, namely, Narayan Nayak, who took charge of investigation from S.I., P.K. Tripathy on 07.11.2006, has stated that he has examined P.W.1. It appears from the evidence of P.W.15 that he has not stated before the I.O. that old man and another person coming from the bush removed victim from the spot; and that both the two persons gagged her mouth and strangulated her neck; and that they made her lie on the ground facing downward; and that she was assaulted on the back side of her head; and that the victim was floundering. It is apparent from the records that this witness stated to be an eye-witness and his statement has been recorded by the P.W.15. He has not stated before the I.O. that he saw the crime that another person assaulted the deceased by means a stone on the back of side after throttling. Law is well settled that if there are major contradictions between the evidence given in the Court and the statement recorded under Section 161 Cr.P.C, then the evidence of that witness becomes unreliable. Thus, P.W.1 stands thoroughly discredited. 7. In this connection, the learned Addi. Standing Counsel has submitted that there is a fault on the part of the I.O. and for that he has been declared hostile by the prosecution. Therefore, the evidence of P. W. 1 should be believed. However, on examination of the statement made by the P.W.13, it shows that the said I.O. has been cross-examined by the prosecution mainly with respect to the statement of P.W.16 and not with regard to the statement of P.W.1. Hence, it cannot be said that mere suggestion of improper investigation by the police advanced by the prosecution shall make the witness, P.W.1 trustworthy. Now, it is to be seen whether the prosecution has proved its case beyond all reasonable doubt as far as Sections 498-A, 304-B, 406/ 34 of the IPC read with Section 4 of the D.P. Act are concerned. 8. Now, it is to be seen whether the prosecution has proved its case beyond all reasonable doubt as far as Sections 498-A, 304-B, 406/ 34 of the IPC read with Section 4 of the D.P. Act are concerned. 8. It is not disputed that in order to bring home the charges under Section 304-B of the IPC, the prosecution must establish the following : i. The death of the deceased should have been caused by burns or bodily injury or otherwise than under normal circumstances; ii. The death should have been occurred within seven years of marriage; iii. she should have been subjected to cruelty or harassment by her husband or any relative of her husband soon before such death; and iv. Such cruelty and harassment should be in connection with demand for dowry. In case all the ingredients are satisfied, the offence is called dowry death. In such case, the presumption regarding dowry death can arose under Section 113-A of the Indian Evidence Act, 1872. Since the main offence in this case is under Section 304-B of the IPC, it is apt to this Court to examine whether the offence under Section 304-B of the IPC has been made out or not. 9. In this regard, the first ingredient to be examined is the nature of death of the deceased. P.Ws. 10 and 11 are the two doctors, who performed autopsy on the dead body of the deceased, Upama, P.W.10 has stated on oath that on 22.08.2006 she was the Assistant Surgeon, S.D. Hospital, Kuchinda. On that date, on police requisition, she along with Dr. S.B. Patel, Surgery Specialist of the said Hospital conducted post-mortem examination in respect of the dead body of Upama Sahu, W/o. Sanjib Sahu of village Bandhapali and found the following : (i) Rigour mortis were present, there was superficial abrasion of size 1 cm x 1 cm at the back of right elbow. (ii) There was swelling on the scalp, i.e. occipital region of size 1 cm x 1 cm. (iii) There was lineat fracture of 2 cms. long in size, antero posteriorly present on the medial part of left parietal bone near midline, with blood oozing from it. (iv) There was a subdural haematoma below the fracture site of size 3 cms x 3 cms. On further dissection he does not find any injuries on the person of the deceased. long in size, antero posteriorly present on the medial part of left parietal bone near midline, with blood oozing from it. (iv) There was a subdural haematoma below the fracture site of size 3 cms x 3 cms. On further dissection he does not find any injuries on the person of the deceased. On examination, it was found that due to injury in the vital organ like brain, the death was caused. The evidence of P.W.12, Sashi Bhusan Patel corroborates the statement given by the aforesaid doctor. Additionally, P.W.12 has stated that, on 25.09.2006, on query about the reason of two black marks on the neck of the deceased, he opined that those black marks cannot be caused by 'Mangalsutra' or assault as the same was due to natural skin crease (folding). On dissection, it was noticed that there was no internal injury below that mark. The query report has been marked as Ext. 9/2. Similarly, on 15.12.2006, on police requisition, he confirmed his opinion report. Thus, it is apparent from the records that the deceased met with her death, which was otherwise then under normal circumstances, 10. It is not disputed that the marriage took place between Sanjib and Upama on 18.02.2005 and the deceased died on 22.08.2006. Thus, the death has caused within seven years of marriage. The 3rd ingredient is that there should be cruelty or harassment by her husband or any relative of her husband soon before such death and that should be in connection with dowry death. In this connection, the evidence of P.Ws. 2 and 3 is most important. P.W.2-Saroj Barik, who happens to be informant and younger brother of the deceased, has stated on oath that, on 18.02.2005, Upama was given in marriage to Sanjib. He has stated that his sister has three sister-in-laws, out of whom, Rojin and Rubin were ill treating his sister (both Rojin and Rubin are not charge-sheeted. All the accused persons including Rojin and Rubin were harassing and torturing his sister and compelling her to work in the land. They had forcibly removed the gold ornaments given to his sister in marriage. It is further stated that due torture of her husband, his sister was not able to perform social ritual. It has further stated by this witness that the father-in-law of his sister has asked to bring cash of Rs. 1,00,000/- towards dowry for the marriage. They had forcibly removed the gold ornaments given to his sister in marriage. It is further stated that due torture of her husband, his sister was not able to perform social ritual. It has further stated by this witness that the father-in-law of his sister has asked to bring cash of Rs. 1,00,000/- towards dowry for the marriage. He stated that when he asked to the Sanjib regarding the reason of his marriage, he replied that being forced by his parents he married to his sister. He further stated that when he went to meet her sister in the matrimonial house, she came with the witness and did not agree to return her in-law's house. The witness further stated that his sister was insisting him not to return to her in-laws house as she was apprehending her murder. As Upama did not agree to go to her matrimonial house, she admitted in a Nursing Training School, Sambalpur. In the meantime, accused, Danesh and Binodini came to his village and called some villagers including Narendra Naik, Gobardhan Barik and Lalit Barik had stated before the villagers to excuse them and that the same incident will not be repeated to future. The villagers asked him to leave his daughter for her matrimonial house. Then, they left the house along with his sister. On 20.08.2006, the accused Sanjib along with his sister came to his home. On 22.08.2006, both of them left by a motor cycle. On the same day, at about 11 a.m., a Bank employer informed that due to accident his sister has lost her sense and she did not regain her sense and that Sanjib had been shifted to Burla. The witness informed Sudhir Barik, son of maternal uncle of accused Sanjib over phone and that Sudhir Barik arrived at the house of the accused. Prior to arrival of Sudhir Barik, the witness along with his aunt-Purnima Barik reached at the house of the accused and proceeded to the spot of accident, i.e. at 'Chetan Rathar'. They found that the dead body of the deceased was kept at the side of the road covering her face with saree and the motor cycle was kept on its stand facing towards the deceased. There was no mark of accident on the motor cycle. They found that the dead body of the deceased was kept at the side of the road covering her face with saree and the motor cycle was kept on its stand facing towards the deceased. There was no mark of accident on the motor cycle. Thereafter, the witness reported the matter to the police and in course of evidence he proved the FIR, inquest report and seizure list where the dowry articles were seized from the house of the accused. The witness has been cross-examined extensively. He denied the suggestion that he has not stated before the I.O. that all the accused persons including Rojin and Rubin were harassing and torturing his sister and competing her to work in the land and that Rojin and Rubin were ill-treating and misbehaving his sister. Further, he denied the suggestion that the accused had forcibly removed the gold ornaments given to his sister in the marriage and that due to torture her husband, his sister was not able to perform social ritual; and that the father-in-law asked the sister to bring cash of Rs. 1,00,000/- for dowry for the marriage, and that he asked the husband of his sister the reason of his marriage and accused Sanjib Sahu replied that being forced by his parents, he married to his sister, and that his sister was intimating such nuisance to him over phone. The witness has further stated that he denied the suggestion that he has not stated before the I.O. that some of the villagers including Danesh and Binodini came to his village and called some of the villagers including Narendra Naik, Gobardhan Barik, Lalit Barik, and that one bank employee informed at his house that due to accident his sister lost her sense and did not regain her sense; and that the accused Sanjib has been shifted to Burla and that the witness informed Sudhir Barik and that Sudhir Barik came to the house of the witness and informed that his sister has been murdered. There is, however, contradiction of this witness regarding the incident that took place on 23.08.2006 and recovery of peace of bangle and marks of glazing of saree of his sister. There is, however, contradiction of this witness regarding the incident that took place on 23.08.2006 and recovery of peace of bangle and marks of glazing of saree of his sister. P.W.2 has been examined by the P.W.13-I.O. and his statement has been recorded under Section 161 Cr.P.C. P.W.13 has categorically stated that P.W.2 has not Stated before him that the accused persons including Rojin and Rubin were harassing and torturing his sister and Compelling her to work in cultivable land; and that Robin and Rojin of the deceased were ill-treating and misbehaving his sister; and that they had forcibly removed the gold ornaments given to his sister at the time of marriage; and that due to torture of her husband, she has not been able to perform social ritual; and that the witness has not specifically stated about the Dakhika; and that on his query regarding the reason of marriage, accused-Sanjib stated that he married Upama being compelled by his parents and that he has no interest to marry with Upama, and that when P.W.2 was going to the house of Upama, she was not agreeing to go to her matrimonial house as she was apprehending of being murdered; and that as she did not agree to go to her matrimonial house, she was admitted in Nursing Training School, Sambalpur. P.W.2 has not stated regarding the incident that took place regarding the recovery of peace of bangle and mark of glazing of saree of his sister. Such being the case, it is apparent from the statement of P.W.2, vis-a-vis with the evidence of P.W.13, the witness has not stated regarding the demand of dowry and torture to his sister before the I.O. Therefore, those parts of the testimony does not find place in the statement recorded under Section 161 Gr.P.C. That makes the witness untrustworthy. P.W.3, namely, Nuadei Barik, mother of the deceased has stated that Upama was given in marriage to Sanjib about four years back. She has given articles like vehicle, T.V., Freeze, etc. to her son-in-law at the time of marriage. After two months of marriage, the accused started ill treating and harassing her daughter on demand of cash of Rs. 1,00,000/-. She further stated that the accused along with his parents and two sisters have ill treated her daughter on demand of such dowry. to her son-in-law at the time of marriage. After two months of marriage, the accused started ill treating and harassing her daughter on demand of cash of Rs. 1,00,000/-. She further stated that the accused along with his parents and two sisters have ill treated her daughter on demand of such dowry. It is further stated that they have harassed her daughter compelling to work in cultivable land, under Mahula tree and that they spit on the debris to be thrown out by her daughters in spite of her objection. Her daughter expressed before her not to return her matrimonial house and that she may be killed any time. She further stated that on one occasion while her daughter was in her house, Rojin threatened her daughter over phone to come with cash otherwise she will be murdered. Her husband brought the aforesaid harassment and ill treatment to the notice of the parents of the accused Sanjib and informed that they are not taking any step against the Sanjib although they have accepted Upama" as their daughter. Therefrom, the witness further stated that she and her husband did not go to the house of the accused-Sanjib and his parents did not come to their house. The witness-states that Rojin is the root cause of the dispute, who stayed in the house of accused persons for about one year for delivery. Her daughter was ill treated for each work and she was adversely commented if she puts on the light in the evening. Her daughter told that she was being tortured for demand of dowry. The witness further stated that she called the Sanjib and persuaded him to receive cash of Rs. 50,000/- in support of business. While denying to accept Rs. 50,000/-, Sanjib made a demand of Rs. 1,00,000/-. The witness further stated that her daughter has tolerated all the tortures of the accused persons to the maximum and her gold and silver ornaments were taken away on the plea that they may be looted by the naxalites. Rojin and Rubin intentionally cut the gas pipe with intent to kill her daughter, but her daughter could know it and hence she did not lite the gas. The witness further stated that in the month of 'Bhadrab' i.e. 15 days prior to death of the deceased, her daughter came to her house and did not agree to return her matrimonial house. The witness further stated that in the month of 'Bhadrab' i.e. 15 days prior to death of the deceased, her daughter came to her house and did not agree to return her matrimonial house. The witness stated that her daughter has admitted for training in Nurse Course at Sambalpur. On Monday, she was to proceed to Sambalpur for Nurse training but she could not go due to bus strike. On that day, all the accused persons came to her house along with Narendra Naik (P.W.8) and Lalit Barik and Gobardhan Barik. It is stated by the witness that her husband, his elder brother and also his younger brother were all present. The accused persons called her daughter, who expressed her inability to proceed to her matrimonial house disclosing that Sanjib did not allow her to consume fried rice (Lia). The witness has stated that Upama also expressed that accused Sanjib compelled her to collect mohua flowers till 3.00 p.m. without meal. The witness has further stated that Upama expressed before the P.W.8 that her father-in-law was showing leaflet to others to assassinate her character and as such she expressed inability to return her matrimonial house. Her daughter has also expressed that the accused persons were threatening to break her leg and hand. The accused Bonodini committed on behalf of all the accused persons not to cause any ill treatment or harassment to her daughter. Even then her daughter had no intention to go with the accused persons but due to the words of assurance given by the Gountia, her daughter went to her matrimonial house along with the accused. The witness has further stated that-on Sunday her daughter Upama @ Dolly came to her house along with the Sanjib. On query, her daughter told that they have come to her house for a round (Buli Asiba). On Monday, the witness further stated that accused Sanjib went to Jharsuguda with her sister in search of service. On Tuesday, the witness enquired from her daughter and learnt that there is no development in the ill-treatment of the accused persons. On Tuesday, Sanjib and Upama returned to her house having breakfast. On the same date, one Prafulla came to her house and informed that due to accident. Sanjib, has been shifted to Burla Medical College but he could not say anything about Dolly. On Tuesday, Sanjib and Upama returned to her house having breakfast. On the same date, one Prafulla came to her house and informed that due to accident. Sanjib, has been shifted to Burla Medical College but he could not say anything about Dolly. After some time, Haresh Sahu arrived and informed that Sanjib has been shifted to Medical College and nothing has happened to Dolly. She informed it to her nephew-Sudhir Barik, he went to the house of accused persons and informed over phone that Sanjib is sleeping in his house and that he along with his father were very much present in their house and Sanjib has not been shifted to Burla. She has further stated that she went the house of the accused and saw the dead body of her daughter and found that her Naka Phuli was not present on her body and there was mark of injury on neck showing mark of strangulation. The witness has been examined by the defence and it has brought out that she has not been stated before the I.O. that at the time of marriage she had given articles like Vehicle, T.V., Freeze to her son-in-law and that after two months of marriage, her daughter was ill treated on demand of cash of Rs. 1,00,000/; and that her two sisters, namely, Rubin and Rojin have ill treated her daughter on demand of dowry; and that they have harassed her daughter by compelling to work in cultivable land and in spite of objection her daughter described these ill-treatment and harassment to her. The witness has further denied to have stated before the I.O. that on one occasion while her daughter was in her house, Rojin threatened her daughter over phone to come with cash otherwise she will be murdered; and that her husband brought the harassment and ill treatment to the notice of the parents of the accused Sanjib and informed that they are not taking step in that regard although they have accepted her daughter as their daughter; and that Rojin is the root cause of dispute who stayed in the house of the accused for delivery; and that her daughter was ill treated for each work and she was adversely commented if she puts on the light in the evening; and that her daughter told her that she was being tortured for demand of cash of Rs. 1,00,000/ - and that the witness called the Sanjib and persuaded to receive cash of Rs. 50,000/- to start business but Sanjib denied to accept the same; and that when her daughter fell ill she was not provided with medicines for which she brought her daughter and took her to the hospital; and that she had tolerated all tortures of the accused persons to the maximum and that her gold and silver ornaments were taken away on the plea that the same may be looted by the naxalites; and that Rojin and Rubin intentionally cut the gas pipe with intent to kill her daughter. The witness has denied the suggestions that she has not stated in her statement under Section 161 Cr.P.C. that in the month of 'Bhadrab' i.e. about 15 days prior to death, her daughter came and did not agree to return her matrimonial house and that she admitted for nurse course training at Sambalpur; and that all the accused persons along with Narendra Naik (Gountia), Lalit Barik and Gobardhan Barik, Sanjib and his brothers sat in her house and called her daughter, who expressed her inability to proceed matrimonial house disclosing that in one occasion accused Sanjib did not allow her to consume 'Lia'; and that she expressed that accused Sanjib compelled her to collect mahua flowers without meal till 3 p.m.; and that she expressed before the Gountia that her father-in-law is showing leaflet to others to assassinate her character, and that the accused persons were threatening to break the leg and hand of her daughter, and that even if her daughter had no intention to go with the accused persons, due to the words of assurance given by the Gountia, her daughter went to her matrimonial house on Monday along with the accused persons. At paragraph-13, she has denied that on Monday accused Sanjib went to Jharsuguda with her son in search of a service and that she enquired and learnt from her daughter that there was no development in the ill treatment to the accused persons during the period; and that Prafulla came to her house and informed that Sanjib has been shifted to the Burla Medical College and on her query Prafulla stated that he has not marked Dolly in the place of accident, and that after some time Haresh Sahu informed that Sanjib has been shifted to Burla Hospital. However, there are contradictions in the evidence of P.W.13. For the purpose of the case, it is not very much important. However, a cross reference to the evidence of P.W.13 reveals that in fact she has not stated these facts before Investigating Officer while her statement was recorded under Section 161 Cr.P.C. such grave and serious contradiction in her evidence make her unworthy of credence. 11. P.W.7-Bhagabati Barik happens to be distant relation of the accused. She stated in the Court that after marriage. Dolly came to her father's house and mostly desired to stay at father's house than her matrimonial house. She stated before the witness that while coming to her father's house, she has not provided with proper food and that her saree was torn and she was not provided with her basic requirements like soap; and that her husband did not talk to her. She further stated that the deceased also disclosed before her that she has been harassed by the husband on demand of dowry. The witness further stated that one sister of the accused Sanjib stayed in the house of Sanjib for delivery and she also tortured the victim. The witness further stated that the victim was subjected for such harassment on demand of dowry of Rs. 1,00,000/-. The witness stated that the victim disclosed such facts during her visit to her father's house. In the cross-examination, the defence has elucidated contradiction in the statement of this witness with her own statement recorded under Section 161 Cr.P.C. before the I.O. in the cross-examination, she denied the suggestion that she has stated that after her marriage, the victim was visiting her father's house and she was desiring to stay at her father's house than her matrimonial house; and that the victim has stated before her that while coming to her father's house, she was not provided food, and her saree was being torn and her in-laws was not being provided with her basic requirement and her husband was harassing; and that one sister of accused Sanjib stayed in her father's house for delivery and she has also tortured the deceased and that the victim was subjected to torture on demand. 12. 12. The witness P.W.13, i.e. I.O. has stated that P.W.7 has not stated before him that after marriage, the victim was mostly visiting her father's house and she was desiring to stay at her father's house more than her matrimonial house; and that she has not specifically stated before the I.O. that on coming to her father's house the victim has not been provided with food; and that her saree was being torn and she was not being provided with her basic requirements like soap and that her husband was not taking with her and harassing her but she stated regarding the torture before her. 13. P.W.8-Narendra Naik is a co-villager. He has stated that the marriage between the deceased and the accused Sanjib took place in the house of Suresh Barik, father of the deceased. On 14.08.2006, accused Danesh came and requested him to settle the family problem on the ground that his daughter-in-law is not refusing to stay in his house. A meeting was held in the house of Suresh Barik in the presence of Lalit Barik and Gobardhan Barik of Matamahal, who were also present in that meeting. The witness has stated that from the discussion in the meeting he could know that the accused Sanjib had marriage Dolly against his wishes due to the pressure of her parents. The witness further stated that Dolly expressed that the accused Sanjib has not maintained physical relationship with her since her marriage. It has further stated by the witness that Upama also disclosed that the accused persons were reluctant to provide her medicine at the time of her illness and that on the plea of maoist attack the accused person kept her gold ornaments. She has stated that the deceased disclosed that the accused persons were demanding dowry. The witness further stated that he convinced the deceased giving assurance to get back to her matrimonial house if she faces any inconvenience or problem with the accused. With such assurance the witness advised Dolly to go to her matrimonial house. Accordingly, the deceased agreed with such mutual agreement and the accused returned to their house along with Dolly. The witness further stated that he convinced the deceased giving assurance to get back to her matrimonial house if she faces any inconvenience or problem with the accused. With such assurance the witness advised Dolly to go to her matrimonial house. Accordingly, the deceased agreed with such mutual agreement and the accused returned to their house along with Dolly. The witness was cross-examined and a contradiction has been brought out by the defence with respect to his statement before the Court and the statement recorded under Section 164 Cr.P.C. It is stated by this witness that he has not stated before the I.O. that on 14.08.2006 accused Danesh came and requested to settle family problem on the ground that his daughter-in-law is not going to his house and that he has also invited Lalit Barik and Gobardhan Barik of Matamahul, and that from the discussion in the meeting he could know the accused Sanjib had married Dolly against his wishes due to the pressure of his parents; and that he learnt from Dolly that Sanjib had not maintained physical relationship with Dolly since her marriage; and that she also learnt that accused persons were reluctant to provide her medicine at the time of her illness; and that on the plea of maoist attack, the accused persons had kept her gold ornaments; and that the accused persons were demanding dowry and that he convinced the deceased assuring her to get back from her matrimonial house. 14. From the discussion of the evidences of these witnesses, who speak regarding the torture meted out to the deceased with regard to demand of dowry, it is clear that they have not stated so during the investigation. There is a lot of contradiction between their statement made in the Court and the statement recorded under Section 161 Cr.P.C. Such being the case, these witnesses cannot be held to be reliable witness to record a conviction against the present appellants. 15. However, the evidence of P.W. 16 has to be carefully examined. This witness was not examined by the I.O. and that is why the I.O.-P.W.13 was cross-examined by the prosecution after declaring him hostile. In the cross-examination P.W. 13 has stated that he investigated from 23.08.2006 to 17.11.2006. 15. However, the evidence of P.W. 16 has to be carefully examined. This witness was not examined by the I.O. and that is why the I.O.-P.W.13 was cross-examined by the prosecution after declaring him hostile. In the cross-examination P.W. 13 has stated that he investigated from 23.08.2006 to 17.11.2006. This witness denied that the witness-Laxman Barik has met him for the second time, i.e. after five days of the occurrence and informed him that Swarna Pana had witnessed the occurrence as eye-witness and that he not recorded his statement intentionally and that he has called Swarna Pana in presence of Laxman Barik and Swarna Pana and that he stated to have seen the occurrence and that she disclosed the occurrence before the I.O.; and that he proceeded to the spot and recorded statement of Swarna Pana and that he has intentionally suppressed the material with an attempt to turn the sensational case of murder to a case of accident. An examination of the Statement of P.W. 16 reveals that he happens to be relation of both the deceased and the accused. He stated that informant is his son and accused Binodini is his own sister and accused Danesh Sahu is his brother-in-law (Bhinoi). Accused Sanjib is his son. The deceased Dolly @ Upama happens to be his nieces. He further stated that five years ago back, Dolly was given marriage to accused-Sanjib. Articles were given at the time of marriage as per their capability like Motor Cycle, Freeze, T.V. etc. About one and half years after marriage, Dolly was subjected to cruelty on demand of cash by Sanjib, his sisters and also their parents. The witness stated that he has settled the dispute in many times. He further stated that when the torture of the accused became unbearable on the part of Dolly, the brother of Dolly was bringing, her to his house. Since Dolly was subjected to severe harassment by the accused persons. Saroj brought Dolly to his house. The matter was discussed in the house of the informant and he was thinking to leave Dolly at the house of the accused. He has stated that on Monday all the accused persons alongwith Haresh Sahu, Lalit Barik and Gobardhan Barik of Matamahul and Narendra Naik of Nuadihi arrived at the house of the informant. The witness stated that they are ready to take Dolly to their house. He has stated that on Monday all the accused persons alongwith Haresh Sahu, Lalit Barik and Gobardhan Barik of Matamahul and Narendra Naik of Nuadihi arrived at the house of the informant. The witness stated that they are ready to take Dolly to their house. The witness revealed before them that he has taken attempt to solve the dispute, but it had no result and hence Dolly will not be left to her matrimonial house any more. Narendra Naik stated that he had no knowledge regarding the torture. The accused persons committed not to inflict any harassment or torture to Upama before the witness and they will leave peacefully. Accused Sanjib requested him to leave Upama at his house. Accordingly, he went and left Upama at her matrimonial house. After leaving Upama, he went to the matrimonial house at village Kalhapada. Seven days thereafter i.e. on Tuesday at about 2 p.m. on his return from cultivable land, he learnt from his wife that Upama has been murdered. He along with his wife and with daughter-in-law immediately rushed to the house of the accused persons and found Danesh sitting on his verandah covering himself by a shawal. On his query, Danesh stated that Dolly has met her death at Chantenpathar. Then, he came to Kuchinda Hospital and found that Dolly was lying dead. He did not find any bleeding injury on the person of Dolly except two black spots one at her neck and two at both of her elbow joint. Rest of evidence of the witness is regarding investigation. It is clear that the P.W.16 has no direct knowledge regarding the dowry demand by the accused nor he has any direct knowledge regarding the dowry torture meted out to the deceased Upama. 16. In that view of the matter, the ingredient for the offence under Section 304-B that the deceased has been subjected to cruelty and harassment should be in connection with demand for dowry is not established in this case. Hence, it is held that the offence under Section 304-B of the IPC has not been proved by the prosecution beyond all reasonable doubt. Since, there is no separate evidence regarding torture relating to demand of dowry, there is no acceptable evidence for the offence under Section 498-A of the IPC and Section 4 of the D.P. Act. Hence, it is held that the offence under Section 304-B of the IPC has not been proved by the prosecution beyond all reasonable doubt. Since, there is no separate evidence regarding torture relating to demand of dowry, there is no acceptable evidence for the offence under Section 498-A of the IPC and Section 4 of the D.P. Act. Now, the question is whether the offence under Section 406 of the IPC has been committed by the accused persons. It is not the case of the prosecution that the father of the deceased gave any property or entrusted any property with the accused persons. Gift given at the time of marriage cannot be held property entrusted to any person. So, that ingredient for the offence under Section 406 of the IPC is also missing in this case. Hence, this Court comes to the conclusion that the prosecution has failed to prove its case beyond all reasonable doubt and the learned Addl. Sessions Judge, Kuchinde has convicted the appellants without sufficient evidence to show that the accused persons has committed the offences alleged beyond all reasonable doubt. Hence, the judgment of conviction and order of sentence passed by the learned Addl. Sessions Judge, Kuchinda on 10.12.2010 in S.T. Case No. 88/4 of 2008 are hereby set aside. The accused persons are found not guilty of the offences charged. They be set at liberty forthwith, if their detention is not required in any other case. Accordingly, the Criminal Appeal is allowed.