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2016 DIGILAW 415 (ORI)

Narasingha Pujari v. State of Orissa

2016-06-03

D.DASH

body2016
JUDGMENT : 1. This appeal has been filed challenging the judgment of conviction and order of sentence passed by the learned Ad hoc Addl. Sessions Judge (FTC), Gunupur in Criminal Trial No. 2 of 2007 convicting all the appellants for offence under Sections 498-A, 304-B, 201 read with section 34 of the IPC and Section 4 of the D.P. Act and sentencing each them to undergo R.I. for a period of 10 years and fine of Rs.5,000/- in default to undergo R.I. for one year for the offence under Section 304-B IPC; R.I. for one year and fine of Rs. 1,000/- in default to undergo R.I. for three months for the offence under Section 498-A/34 IPC; R.I. for one year and fine of Rs.1,000/- in default to undergo R.I. for three months for the offence under Section 201 IPC and R.I. for six months and fine of Rs.500/- in default to undergo R.I. for one month for the offence under Section 4 of the D.P. Act with the stipulation that substantive sentence would run concurrently and to be followed by the usual benefit of set off. 2. Prosecution case is that Sulochana the deceased had married the appellant no.3 Rama Krishna Pujari. Appellant nos. 1 and 2 are the parents of appellant no. 3 whereas appellant no. 4 is another son of appellant nos. 1 and 2 i.e. brother of appellant no. 3. So appellants here are the parents-in-laws, the husband and the brother-in-law of the deceased. It is stated that there was some demand of dowry from the side of the appellants for the said marriage and that had been met and fulfilled. However, later further demand of dowry was advanced that they be paid with a sum of Rs.20,000/- more as also two tolas of gold. It is said that the deceased had informed about such demand to the members of her paternal house. On 14.7.2006 the appellant no.3 Rama Krishna brought the deceased back to their house and then the informant who is the father-in-law of the appellant no. 3 (P.W.8) had promised to fulfil the demand made on the second round. When the matter stood thus all of a sudden on 24.7.2006 P.W.8 got a telephonic massage as regards the death of his daughter after having suffered from fever. So he went to the house of the appellants. 3 (P.W.8) had promised to fulfil the demand made on the second round. When the matter stood thus all of a sudden on 24.7.2006 P.W.8 got a telephonic massage as regards the death of his daughter after having suffered from fever. So he went to the house of the appellants. But then he was surprised to find his daughter lying dead being half burnt which gave rise to doubt that it was a foul play. FIR being lodged, police immediately registered the case and prior to that on 24.7.06 appellant no.3, the husband of the deceased had given a written report intimating the police about the unnatural death of Sulachana due to accidental fire. So there was earlier the registration of an unnatural death case and while that was being enquired into, the FIR from P.W.8 came to be lodged. Police thereafter closing the U.D. case and began to investigate the case registered on the strength of the FIR of the father of the deceased. In course of investigation, the informant and other witnesses were examined, post mortem examination was carried over the dead body of the deceased Inquest had already been held by the investigating officer. The incriminating materials were seized under seizure lists and sent for chemical examination. Report of the chemical examiner was received and finally on completion of investigation, charge sheet was laid against the appellants. The case having been committed to the court of Session, the appellant finally came to be tried in the court of Ad hoc Addl. Sessions Judge (FTC), Gunupur. 3. During the trial, the prosecution examined in total 17 witnesses. Besides the officials and seizure witnesses, the parents of the deceased have been examined as P.Ws. 8 and 9. The brother of the informant P.W. 8 has been examined as P.W. 10 and so also aunt of the deceased as P.W. 15. Other witnesses are official witnesses which include the doctors and the I.O. 4. The trial court upon examination of the evidence and their evaluation has finally found the appellants to be guilty for commission of offences as stated above and thus they have been accordingly sentenced. 5. Other witnesses are official witnesses which include the doctors and the I.O. 4. The trial court upon examination of the evidence and their evaluation has finally found the appellants to be guilty for commission of offences as stated above and thus they have been accordingly sentenced. 5. Learned counsel for the appellants submits that the evidence of the prosecution as regards the cruelty to have been meted out at the deceased is not believable and the trial court has fallen in error by simply accepting the evidence of the relations of the deceased for the purpose. Thus, according to him, although in the case the death has taken place shortly after the marriage as also due to burn injuries, the presumption under Section 113-B of the Evidence Act does not stand to be drawn. He further submits that so far as the appellant no. 4 is concerned, there is absolutely no evidence except in a generalised manner so as to find him guilty of the offence and he has been convicted simply because of his relationship with the husband of the deceased. He next contends that in the absence of any specific evidence with regard to any overt act or active or even passive participation by the appellant nos. 1 and 2, the parents-in-laws of the deceased when the husband of the deceased i.e. appellant no. 3 was very much present although during the period, the conviction recorded against them is ill founded. It is also submitted that in the meantime, the husband of the deceased i.e. appellant no. 3 has already undergone the period of substantive sentence and having paid the fine has finally been released whereas the appellant nos. 1, 2 and 4 have also served out major period of substantive sentence as imposed. 6. Learned Addl. Standing Counsel submits that the evidence on record are sufficient to establish a case for commission of offence under Section 498-A IPC as against all the appellants and thus when the death has taken place shortly after the marriage and had occurred due to severe burn injuries, otherwise than under normal circumstances, a presumption as provided under Section 113-B of the Evidence Act gets drawn that these appellants are guilty of dowry death. So, when the appellants have not been able to rebut the presumption either by leading any evidence or by showing any such circumstances to have emanated from the evidence of the prosecution witnesses, the conviction recorded by the trial court for the above offences firmly stand. The sentence awarded in the case according to him, being just and proper, the same is also not liable to be interfered with. 7. The settled law be stated here so as to be kept in mind for properly appreciating the submission and addressing the same, side by side providing guide for examination and scrutiny of evidence on record. “Sec. 304-B IPC which deals with the offence of dowry death provides, inter alia, 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.” In order to attract the above offence, the second limb of the explanation contained in Section 498-A of I.P.C. stands as the requirement of 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 facts as regards (a) death is of within seven years; (b) death being otherwise then under normal circumstances; and (c) cruelty being meted out at the deceased soon before the death for or connection with demand for dowry. The above facts being established, the presumption arises that such was the dowry death. 8. The relationship of these appellants with the deceased stand admitted that the appellant nos. The above facts being established, the presumption arises that such was the dowry death. 8. The relationship of these appellants with the deceased stand admitted that the appellant nos. 1 and 2 are the parents-in-laws, appellant no. 3 is the husband and appellant no. 4 is the brother-in-law of the deceased. The marriage in the case having taken place on 6.5.2006, the death is even before the expiry of the three months thereafrom. It has been argued from the side of the prosecution that the deceased died on account of extensive burn injuries and although a plea has been taken by the appellants that the deceased had caught fire suddenly, the same has not been proved. This is wholly acceptable in view of unchallenged evidence on record. P.W. 8 is the father of the deceased. It is his evidence that at the time of marriage, on the demand of the appellants, he had paid cash of Rs.8000/-, one ring, a cycle and utensils and when the deceased had been to their house after her marriage during car festival, she had disclosed as to how the accused persons are further demanding to bring cash of Rs.20,000/- and gold and that in the event for non-fulfilment of the same, threat was being given that she would be killed. It has been stated that the deceased had also told that she was being ill-treated in her in-laws house by the appellants. He has not stated the deceased to have described any specific role to have been played by the appellant nos. 1, 2 and 4. However, his evidence is on the score that he pursuaded the husband of the deceased i.e. appellant no. 3 for not making such demand as he would be fulfilling the same and in due course of time. He has clearly stated to have not discussed about it with other appellants at any time. Mother of the deceased examined as P.W.9 in a generalised manner has again stated that it was told by the deceased during her solitary visit to their house with her husband who left her there that the parent-in-laws were asking her to bring a cash of Rs.20,000/- and two tolas of gold. It has also been deposed by her that appellant no. It has also been deposed by her that appellant no. 3 came to their house and then they had pursuaded to him to wait for some time so that they would be gradually fulfilling the demand as advanced. The other witness is P.W. 10, the brother of P.W. 8. His evidence is also in the same vein. The deceased has told him that the appellants were asking for Rs.20,000/- and two tolas of gold and that in case of non-fulfilment of the said demand, they had threatened to murder her and that they were also exerting cruelty. He has further deposed that the appellant no. 3 was asked to wait for some time for the demand to be met. P.W. 1 is a co-villager of the appellants. He has denied to have any knowledge about any demand by the appellants after the marriage. Evidence of the other co-villager P.W. 2 is also in the same line. These are all the evidence relating to the demand of dowry and cruelty said to have been meted out at the deceased. 9. Giving a careful reading to the oral evidence of above witnesses, it is seen that they have stated about the deceased telling them that the appellants were ill-treating her. But it has not been stated by them such ill-treatment was on account of non-fulfilment of demand of dowry or in connection with the demand of dowry after the marriage. Moreso, none of them have stated as to the manner in which the deceased was being ill-treated especially by appellant nos. 1, 2 and 4. Furthermore, its having nexus with the demand of dowry with a view to coerce the deceased or these witnesses to meet the unlawful demand of money and gold and on account of failure to meet such demand is not believable in so far as the above appellants are concerned as even by then the demand if any had not even been conveyed to the family members of the deceased. Of course they have all stated that during the visit of appellant no. 3 to their house, they had requested him to wait for some time and that he accepted by remaining non-responsive. The demand was from his side as can be seen from evidence of these witnesses or else they could have deposed that the appellant no. 3 denied. The conduct of the appellant no. 3 to their house, they had requested him to wait for some time and that he accepted by remaining non-responsive. The demand was from his side as can be seen from evidence of these witnesses or else they could have deposed that the appellant no. 3 denied. The conduct of the appellant no. 3 that he remained the silent even when the request from his parents-in-laws to wait for some time for fulfilment of demand runs in favour of the prosecution case that had the demand not been from his side, he would have stoutly refuted those facts concerning the demand of money and gold as false. The evidence and other surrounding circumstances emanating therefrom being cumulatively viewed leads me to accept the factum of cruelty to have been meted out at the deceased only by the appellant no. 3 for coercing her and her parents to meet the demand. 10. It is the settled principle of law that the prosecution has to establish its case beyond reasonable doubt and the above foundational facts are first of all required to be proved by the prosecution. For the purpose, the prosecution evidence needs examination. So here is a case where it is found that the evidence is not there to implicate the appellant nos. 1,2 and 4 that they had subjected the deceased to cruelty or harassment or in connection with any demand for dowry although the same remains against the appellant no.3. Thus when the presumption under Section 113-B of the Evidence Act arises to be drawn in the case against the appellant no. 3 against whom the foundational facts have been proved for such drawal, the same is not coming to be drawn against appellant nos. 1, 2 and 4. The appellant no. 3 having failed to rebut the presumption either by leading evidence or by showing any such circumstances to have been brought out in evidence let in by prosecution, the trial court has rightly convicted him for the offences as stated above and the sentence imposed is also found to be just and proper. For the aforesaid discussion and reason, however, the appellant nos. 1, 2 and 4 are not liable for offence under sections 498-A, and 304-B of the IPC and section 4 of the D.P. Act. For the aforesaid discussion and reason, however, the appellant nos. 1, 2 and 4 are not liable for offence under sections 498-A, and 304-B of the IPC and section 4 of the D.P. Act. There is no evidence against them for bringing home the charge under Section 201 of the IPC and such they are entitled to be acquitted of all the offences. 11. The judgment of conviction as well as the order of sentence against appellant nos. 1, 2 and 4 as passed by the trial court are held unsustainable and are accordingly set aside. 12. In the result, the appeal stands allowed in part in so far as the appellant nos. 1, 2 and 4 are concerned, the judgment of conviction and order of sentence passed against them are hereby set aside whereas the conviction and sentence of appellant no.3 are confirmed.