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2014 DIGILAW 75 (ORI)

State of Orissa v. Nanku Patel

2014-01-30

D.DASH

body2014
JUDGMENT D. Dash, J. 1. The Respondents faced trial for offence under Section 304-B IPC & under Sections 3 & 4 of D.P. Act, 1961 in the Court of the Additional Sessions Judge, Baragarh in S.T. Case No. 8/5 of 1992. On culmination of the trial, only the Respondent No. 1 has been convicted for offence under Sections 3 & 4 of the D.P. Act & sentenced to undergo rigorous imprisonment for three years & two years respectively for the said offences running concurrently with payment of fine of Rs. 15,000/- for offence under Section 3 of the Act with default stipulation to undergo rigorous imprisonment for one year while being acquitted of the charge under Section 304-B IPC & other Respondents have been acquitted of all the charges. Being aggrieved by such order of acquittal, the State has called in question the said order by filing this appeal under Section 378 of the Code of Criminal Procedure when the Respondent No. 1 has also filed an appeal challenging the order of conviction & sentence as stated above. These appeals therefore, have been heard together for their disposal by this common Judgment which would govern both. The parties have been referred to herein as shown in the appeal filed by State. The case of the prosecution is the following:- Satya Patel, the daughter of P.W. 1 was given in marriage with Respondent No. 2 namely: Jagannath five years prior to her death. It is stated that the Respondents had demanded 6 tolas of gold, 200 tolas of silver with cash of Rs. 10,000/- in the said marriage which was paid to Respondent No. 1 & 2. It is said that a female child was born to the said wedlock & then there came the advancement of further demand of 1 tola & 9 Massa of gold so as to be fulfilled by P.W. 1, the father of Satya Patel (deceased) as said quantity of gold was found to have been short delivered. It is further alleged that Respondent No. 3, the mother-in-law had demanded a table fan. P.W. 1 is stated to have paid Rs. 8,000/- to Respondent No. 2 for the said short supply of gold but still the demand is said to have been pursued. On 09.12.1990 Satya committed suicide by taking poison. It is further alleged that Respondent No. 3, the mother-in-law had demanded a table fan. P.W. 1 is stated to have paid Rs. 8,000/- to Respondent No. 2 for the said short supply of gold but still the demand is said to have been pursued. On 09.12.1990 Satya committed suicide by taking poison. So, her father, P.W. 1 lodged information at Ambobhuna Police Station which necessitated registration of a case & commencement of investigation thereof. Finally the Respondents faced the trial in the Court of Session. The Respondents during trial took the plea of denial & false implication. 2. The Learned Additional Sessions Judge on analysis of evidence let in by the prosecution both oral & documentary has found the Respondents not guilty of offence under Section 304-B of IPC by disbelieving the factum of demand of dowry at the time of marriage & as also that it was being insisted thereafter & the torture as said to have been meted out at the deceased on the account of non-fulfillment of the same & that too within a reasonable period of time prior to the death to fall with the ambit of the "soon before". So he acquitted all the Respondents from the charge under Section 304-B IPC & Respondent Nos. 2 & 3 have also been acquitted of the charge under Sections 3 & 4 of D.P. Act. However, the Respondent No. 1 has been convicted for offence under Sections 3 & 4 of D.P. Act followed by sentence as stated above. 3. Learned Additional Government Advocate submits that the order of acquittal of Respondents for offence under Section 304-B IPC & also Respondent Nos. 3 & 4 for offence under Sections 3 & 4 of D.P. Act as to have been based on perverse appreciation of evidence causing miscarriage of justice. Therefore, according to him, the same needs interference by this Court in exercise of the power of this Court in the appeal under Section 378 of the Code of Criminal Procedure. 3 & 4 for offence under Sections 3 & 4 of D.P. Act as to have been based on perverse appreciation of evidence causing miscarriage of justice. Therefore, according to him, the same needs interference by this Court in exercise of the power of this Court in the appeal under Section 378 of the Code of Criminal Procedure. Placing paragraph-6 of the Judgment, he has elaborated the submission as to how the Court below has proceeded in a confused manner without properly approaching the evidence keeping in view as to what are the foundational facts required to be proved for drawal of presumption under Section 113-B of Evidence Act & then going to find out if those foundational facts have been established or not so as to arrive at a conclusion as regards establishment of charge under Section 304-B IPC taking into consideration as to how far the defence has been able to rebut said presumption. According to him the evidence on record establish those foundational facts that the death being within being seven years of marriage, there was persistent demand of dowry which was continuing till death & that there was torture on account of non-fulfillment of the same. It is his submission that all these being proved lead to the drawal of presumption under Section 113-B of the Evidence Act which has gone un-rebutted from the side of the defence. Thus he contends that the Court below ought to have convicted the Respondents on the basis of the evidence for having committed under Section 304-B IPC. While submitting that it is a case for conviction of the Respondents for offence under Section 304-B IPC, he supports the conviction of Respondent No. 1 for offence under Sections 3 & 4 of D.P. Act while further submitting that other Respondents are also liable for said offences. Thus he urges that the appeal filed by the State merits acceptance & the appeal filed by Respondent No. 1 has to be dismissed. 4. Thus he urges that the appeal filed by the State merits acceptance & the appeal filed by Respondent No. 1 has to be dismissed. 4. Learned Counsel for the Respondents while supporting the conclusion arrived at by the Trial Court with regard to non-establishment of the demand of dowry in the marriage between Satya & Respondent No. 1; its continuation till death & torture being meted out at Satya by the Respondents for non-fulfillment of the same, he further submits that even on independent analysis of evidence, it can be said that the prosecution has failed to establish the same. So he contends that the appeal filed by the State has no merit. It is further submitted that on the face of such finding of Trial Court on the above factual aspects, the conviction recorded as against Respondent No. 1 for offence under Sections 3 & 4 of the D.P. Act is liable to be set aside. 5. On such rival submission, before going to examine their acceptability, it is felt apposite to take note of the position of law with regard to the scope of an appeal challenging the order of acquittal in exercise of the power & the interference thereof. It is the settled position of law that in an appeal against an order of acquittal the Court has full powers to review the evidence upon which an order of acquittal is based & generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused land the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the Appellate Court but Judge-made guidelines for circumspection. The paramount consideration of the Court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. Such is not a jurisdiction limitation on the Appellate Court but Judge-made guidelines for circumspection. The paramount consideration of the Court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the Trial Court has taken a view ignoring the admissible evidence, a duty is cast upon the High Curt to re-appreciate the evidence in acquittal appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not. Probable view taken by the Trial Court which may not be disturbed in the appeal is such a view which is based upon legal & admissible evidence. Bhagwan Singh & ors. vrs. State of M.P.; (2002) 4 SCC 85 ). 6. Keeping the aforesaid principle of law in mind, let us now proceed to examine the evidence of prosecution witnesses & other documents admitted in course of trial in order to find out whether the conclusion arrived at the Trial Court is based on perverse appreciation of the same resulting miscarriage of justice & also as regards the sustainability of conviction & sentence against Respondent No. 1. Marriage in the present case admittedly had taken place well within the period of seven years prior to the death of Satya, the wife of Respondent No. 2 & daughter-in-law of Respondent Nos. 1 & 3. P.W. 1 states during evidence that the Respondents had demanded 6 tolas of gold, 200 tolas of silver & cash of Rs. 10,000/- for the said marriage. But it is not stated in the F.I.R., Ext. 1 that there such was the demand as consideration for the said marriage. It is stated by him that after marriage Satya went to her matrimonial home & 15 days after her stay in the first spell, she came to her father's (P.W. 1) house, had a stay for a month. It is not stated that at that time there was any complain by her (deceased) either with regard to the shortage of the weight of the gold which is now stated to have been demanded later or anything - about the torture or cruelty either mental or physical, being meted out at her. It is not stated that at that time there was any complain by her (deceased) either with regard to the shortage of the weight of the gold which is now stated to have been demanded later or anything - about the torture or cruelty either mental or physical, being meted out at her. It is further stated by P.W. 1 that her daughter Satya having stayed for a period of three months in her matrimonial home had come again. It is his evidence that at that time she had complained that Respondent No. 3 had been making a demand of a table fan to be given by P.W. 1 & other Respondents concerning the deficit of original demand of gold. This demand of table fan being made by Respondent No. 3 again does not find mention in the F.I.R. & appears to be a later introduction. This witness does not state that her daughter had told about any torture for the same although says that she had expressed apprehension that Respondents would torture her in case of non-fulfillment of such demand. But for that no such further evidence is forthcoming to ascertain that such apprehension was having some foundation & as such to be said as well founded. However, there was no torture by then is rather stated by P.W. 1. P.W. 1 then states to have gone to the Respondents' house when they told about the shortage of gold in weight as given earlier. He has stated to have again gone & met the Respondents five days thereafter & then it is said that Respondent No. 2 insisted him to make good the deficit weight of the gold. So two days prior to the death he had gone again & paid Rs. 8,000/- to the Respondents in lieu thereof when it is stated that Respondent No. 2 insisted that the demand to be fulfilled in its entirety. This is all the evidence of P.W. 1, the father. It is not his evidence that at any point of time his daughter had in fact been tortured or treated with cruelty in any manner & that he was so told on any of those occasions. The fact remains that a female child was born to the wedlock, when also P.W. 1's wife, i.e., the mother of the deceased had gone to see the grand daughter. The fact remains that a female child was born to the wedlock, when also P.W. 1's wife, i.e., the mother of the deceased had gone to see the grand daughter. No such evidence is forthcoming that any discontentment amongst the family members at that time of visit of the wife of P.W. 1 was observed & more so she has not been examined in this case. It is also not there in evidence to show that any such untoward incident had taken place. P.W. 1 is not stating that during his or his wife's visit, they were not properly attended & the Respondents were indifferent to them & behaved with them or with Satya as such or ignored their presence altogether. It is not stated that the deceased had ever written any letter. When the witness P.W. 1 claims to have convened a meeting with Dambaru, Saita & Khirod; Dambaru, & Khirod being examined are not supporting said version & Saita has been withheld from witness box. So said evidence of P.W. 1 also falls short of any corroboration. Now P.W. 4, the uncle of the deceased simply implicates Respondent No. 1 to have demanded the dowry for the marriage & P.W. 1 to have paid those to him. He is not saying about the demand of further gold to the extent it was delivered short at the first instance much less to say that it had been advanced as demand by the Respondents at any specific point of time, although, he is saying that there was demand for the same that to in a generalized manner. For the first time, this witness states that the Respondent No. 3, the mother-in-law of the deceased had demanded a table fan while saying that, P.W. 1 had told him about that. But then he also remains silent as to how P.W. 1 could know it & what was the source for him which is most important to judge the acceptability of said evidence. When P.W. 1 has not stated that there was any quarrel in the matrimonial home of the deceased, P.W. 4 says that Respondents were quarrelling with Satya. But then he also remains silent as to how P.W. 1 could know it & what was the source for him which is most important to judge the acceptability of said evidence. When P.W. 1 has not stated that there was any quarrel in the matrimonial home of the deceased, P.W. 4 says that Respondents were quarrelling with Satya. Although, he claims to have gone to the house of the Satya after her marriage, he is not stating anything about any such incident to have taken place in his presence nor any thing to have been so observed or seen suggesting or indicating the ill-feeling or anything like that. He has also not stated that he was behaved or treated indifferently by Respondents thereby indirectly expressing their annoyance for non-fulfillment of demand. P.W. 8, the sister of the deceased, claims to have gone to the house of the Respondents about four months prior to the death of her sister. As per her evidence, her sister had told that their father had given lesser quantity of gold & that a table fan was being demanded from her father-in-law's side. It is the evidence of this witness that she had requested P.W. 1 to leave the deceased with her which was turned down as the demand had not been fulfilled in entirety by then but in part. Such evidence is not forthcoming from the lips of either P.W. 1 or P.W. 4 although P.W. 8 claims to have so reported specifically to P.W. 1. So on this score evidence of P.W. 1 is also not receiving corroboration & also that of evidence of P.W. 8 for which said evidence remain under cloud. Going through para-6 of the Judgment, of the Trial Court, I find some force in the submission of Learned Additional Standing Counsel that the approach in appreciation of the evidence has been made by the Court below in a direction-less manner without keeping in mind the settled law as to wherefrom to begin the journey & how to proceed further in reaching at the destination. However, on independent analysis of said evidence keeping in view the settled position of law as discussed above, I am not in a position to form a view to conclude contrary to the ultimate one arrived at by the Trial Court. However, on independent analysis of said evidence keeping in view the settled position of law as discussed above, I am not in a position to form a view to conclude contrary to the ultimate one arrived at by the Trial Court. Thus the prosecution in the case in hand is found to have not been able to establish the foundational facts by leading clear, cogent & acceptable evidence beyond reasonable doubt for drawal of presumption under Section 113-B of the Evidence Act so as to base a conviction for offence under Section 304-B IPC. The finding of the Trial Court as regards liability of Respondent No. 1 under Sections 3 & 4 of the D.P. Act is unsustainable on the basis of its own finding on evidence about demand of dowry being not proved beyond reasonable doubt & that also stands on my independent analysis & discussion of evidence as above. 7. In the wake of aforesaid, the order acquitting the Respondents of the charge under Section 304-B IPC; Respondent Nos. 2 & 3 of the charge under Sections 3 & 4 of D.P. Act is not liable to be interfered with & the conviction recorded against the Respondent No. 1 for offence under Sections 3 & 4 of D.P. Act followed by sentence as stated above is held unsustainable & set aside. The Respondent No. 1 is acquitted of the said charges. Resultantly, the appeal filed by State stands dismissed & the appeal at the behest of Respondent No. 1 stands allowed. Appeal dismissed.