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2016 DIGILAW 1125 (ORI)

Naba Kumari Mahakud @ Mohakuda v. State of Orissa

2016-11-21

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. The petitioner No.1 Naba Kumari Mahakud @ Mohakuda is the mother-in-law and petitioner No.2 Bhardwaj Mahakud @ Bharadwaja Mohakud is the elder brother-in-law of the deceased Subasini Dehury. They have filed this revision application challenging the impugned order dated 27.07.2016 passed by the learned Sessions Judge, Angul in C.T. (S) Case No.10 of 2006 in framing charge under sections 498-A, 304-B, 306, 406, 506 read with section 34 of Indian Penal Code and section 4 of the Dowry Prohibition Act. 2. The prosecution case, as per the First Information Report lodged by one Panabudu Dehury before the officer in charge of Athmallik Police Station on 08.08.2005 is that the deceased was given in marriage with one Hemanta Mohakud on 13.02.2005 in accordance with Hindu rites and customs and few days after the marriage, the petitioners along with the husband of the deceased Hemanta Mohakud and sister-in-law (husband’s elder brother’s wife) Anjali Mahakud subjected the deceased to physical and mental torture. They demanded a further sum of Rs.10,000/-and a fridge. The deceased came to her father’s place about one and half months prior to the date of occurrence and at that point of time, she complained before her family members regarding her torture and she was not even inclined to return back to her in-law’s house. It is stated that due to mental torture, the pregnancy of the deceased was terminated. The deceased was left in the house of her in-laws on 27.06.2005 by the informant and on 04.08.2005 the informant came to know that the deceased had sustained burn injuries and she was admitted in the Government Hospital at Cuttack. The informant and his other family members rushed to the hospital and found the deceased was being treated at S.C.B. Medical College and Hospital, Cuttack and she had sustained burn injuries on her body and the deceased disclosed before the informant that on 03.08.2005 in the midnight while she was sleeping, her husband Hemanta Mahakud and elder sister-in-law Anjali Mahakud poured kerosene on her and set her on fire and the door of that room was locked from outside and hearing the cry of the deceased, the other family members came and rescued the deceased and shifted her to the hospital. 3. 3. On 08.08.2005 on the basis of such First Information Report, Athmallik P.S. Case No. 73 of 2005 was registered under Sections 498-A/302/304-B/34 of the Indian Penal Code read with Section 4 of the Dowry Prohibition Act against the four accused persons including the petitioners. It appears that prior to the admission of the deceased in the S.C.B. Medical College and Hospital, Cuttack, her dying declaration was recorded at S.D. Hospital, Athmallik in connection with Athmallik P.S. S.D.E. No. 52 dated 04.08.2005, where the deceased stated that she herself poured kerosene on her body and set herself on fire out of anger. 4. The Investigating Officer after completion of investigation found prima facie case under sections 498-A, 304-B, 306, 506, 406 read with section 34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act and accordingly submitted charge sheet on 24.12.2005 against four accused persons. 5. The learned counsel for the petitioners while challenging the impugned order dated 27.07.2016, submitted that the husband of the deceased was charged in C.T.(S) Case No. 119 of 2006 vide order dated 18.03.2009 under sections 498-A, 302, 304-B read with section 34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act and therefore, in relation to the self same case, charge cannot be framed against some accused under section 302 of Indian Penal Code and against some others under sections 304-B and 306 of the Indian Penal Code and the prosecution must bring concrete materials on record as to whether it is a case of under section 302 of I.P.C. or under sections 306 and 304-B I.P.C. Learned counsel further submitted that in view of the fact in the oral dying declaration made before the informant at the S.C.B. Medical College and Hospital, Cuttack, the deceased has implicated only two accused persons namely Hemanta Mahakud and Anjali Mahakud to have set fire to her and has not implicated the petitioners to have played any role in her death, therefore, the order of framing charge under section 304-B and 306 of the Indian Penal Code are vitiated in the eye of law. 6. 6. The learned counsel for the State on the other hand has produced the Case Diary and submitted that during course of investigation, numbers of witnesses have been examined and they have implicated the petitioners in connection with the transaction that led to the death of the deceased. Learned counsel for the State placed the statement of Bhuban Kheti who has stated that the deceased committed suicide. Learned counsel for the State further contended that there are ample materials on record that the deceased was subjected to physical and mental torture in connection with demand of dowry after her marriage by the petitioners and the occurrence took place within six months of her marriage and therefore, it can be said that the ingredients of the offences under Sections 304-B and 306 Indian Penal Code are clearly made out. 7. Law is well settled that at the time of framing of charge, it is not necessary for the prosecution to establish the case beyond unreasonable doubt. The Court is not required to hold a mini trial and come to a conclusion that the materials adduced in the case are sufficient to warrant conviction. Where the materials in the form of statements made before the police, dying declaration and post mortem report, a clear prima facie case for framing of the charges is made out, the learned Trial Court can frame the charge against the accused. At the stage of framing charge, even a strong suspicion based on cogent materials is sufficient enough for the Court to frame a charge against the accused persons. It is not necessary for the Trial Court to weigh the pros and cons and to consider the improbability features of the prosecution case. 8. At the stage of framing charge, even a strong suspicion based on cogent materials is sufficient enough for the Court to frame a charge against the accused persons. It is not necessary for the Trial Court to weigh the pros and cons and to consider the improbability features of the prosecution case. 8. In view of the prima facie materials available on record that the petitioners and the other co-accused persons were subjecting the deceased to physical and mental torture in connection with demand of dowry and the post mortem report findings that it is a case of unnatural death which took place within six months of the marriage of the deceased and in view of the statement of the deceased before the doctor at S.D. Hospital, Athamallik that she had poured kerosene on her and set herself on fire, I am of the view that there were sufficient materials for the Trial Court to frame charges under sections 498-A, 304-B, 306, 506 read with section 34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act. Even though the co-accused has been charged under section 302 of the Indian Penal Code, since he has withdrawn the revision petition filed by him today in Criminal Revision No. 566 of 2009, it cannot be a ground to quash the charge against the petitioners. Accordingly, I find no illegality or infirmity in the impugned order and therefore, the revision petition filed by the petitioners being devoid of merits, stands dismissed.