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2016 DIGILAW 497 (ORI)

State of Orissa v. Birsingh Mishra

2016-07-11

J.P.DAS

body2016
JUDGMENT J.P. DAS, J. - This appeal filed by the Government is directed against the order dated 22.04.1997 in S.T. Case No. 38-D of 1995/55 of 1995 passed by the learned Asst. Sessions Judge, Kamakhayanagar acquitting the accused respondents of the offences punishable under Sections 498-A/304-B/306/34, I.P.C. 2.The prosecution case was that the victim daughter of the informant was given in marriage with respondent no. 2 Manas Ranjan Mishra (since expired) on 08.03.1994. On 26.10.1994 at about 8 P.M. the accused respondent nos. 1 and 2 along with another Sudhansu Mishra came to the house of the informant and informed that the daughter of the informant had fallen inside a well and died while under treatment at District Headquarters Hospital, Dhenkanal. On hearing this, the informant suspected some foul play and he along with his brother, son and other co-villagers proceeded to Kamakhyanagar Police Station and orally reported the matter, but were told that they should report the matter at Tumusinga Police Station. Thereafter they proceeded to the said Police Station but finding none of the police officers present there, they proceeded to Dhenkanal. On the next day in their presence the inquest and post mortem over the dead body were conducted. On the same day, i.e., on 27.10.1994 the informant submitted a report to the Superintendent of Police, Dhenkanal alleging that he felt that the in-laws of his daughter have committed her murder since the informant could not comply their further demand for dowry. The said report was forwarded to Tumusinga Police Station pursuant to which concerned P.S. Case No. 44, dated 28.10.1994 was registered and investigation was taken up. In course of investigation, the witnesses were examined, some seizures were made and after completion of investigation the charge sheet under Sections 304-B/306/34, I.P.C. were submitted against the accused respondents. The accused respondent pleaded not guilty to the charges with a plea that the cause of death was an accident and there was never such demand for dowry. The prosecution examined 11 witnesses in support of its case as against none preferred in defence. 3.Considering the oral evidence placed before the Court and the submissions made on behalf of both the sides, the learned Asst. Sessions Judge in his impugned judgment reached the conclusion that the prosecution could not succeed to establish the charges against the accused persons beyond all reasonable doubts. Accordingly, the judgment of acquittal was passed. 3.Considering the oral evidence placed before the Court and the submissions made on behalf of both the sides, the learned Asst. Sessions Judge in his impugned judgment reached the conclusion that the prosecution could not succeed to establish the charges against the accused persons beyond all reasonable doubts. Accordingly, the judgment of acquittal was passed. 4.It has been submitted in the appeal that the learned trial Court illegally overlooked the consistent evidence of the prosecution witnesses regarding the demand of further dowry and torture meted out towards the victim and erroneously reached the conclusion of acquittal ignoring the settled proposition of law. It was further submitted that the learned trial Court misconstrued the positions of law and reached the conclusion illegally acquitting the accused respondents who were responsible for death of a young girl within seven months of her marriage. 5.It is settled position of law that the first appellate Court or the High Court while dealing with an appeal is entitled and obliged as well to scan through if need to be re-appreciate the entire evidence and arrive at a conclusion one way or the other. As it was held by the Hon’bel apex Court in the case of Ramesh Babulal Doshi –vrs. – State of Gujurat, (1996) 9 SCC 225 as follows: “The mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusion arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. “ On the touch stone of the aforesaid guidelines, the impugned judgment in the present case is to be scrutinized. 6.In course of trial, the prosecution story, as further unfurled, was that at the time of marriage the informant had given a cash of Rs. “ On the touch stone of the aforesaid guidelines, the impugned judgment in the present case is to be scrutinized. 6.In course of trial, the prosecution story, as further unfurled, was that at the time of marriage the informant had given a cash of Rs. 40,000/- besides other household articles as per the specific demand made on behalf of the grooms party and immediately after the marriage, there itself in the house of the informant the bridal party demanded a colour T.V. and a fan as dowry and threatened with dire consequences if the demand was not fulfilled. The informant had assured to comply the demand later. It was further alleged that after the marriage the victim had visited her parental house on three occasions and every time she complained about physical and mental torture given to her by the accused persons for non-fulfilment of the dowry demand of a colour T.V. and a fan and on the last occasion of her visit she had even gone to the extent of saying that her life was in danger and she was likely to be killed by the accused persons. Hearing that the informant had called for his son-in-law the accused respondent no. 2 from Bhubaneswar and after discussion with him as per his advice he left his daughter in her matrimonial house and the alleged occurrence took place ten days thereafter. 7.Out of 11 witnesses examined on behalf of the prosecution, P.W. 3 is the informant, P.W. 5 is his wife, P.W. 6 was the mediator in the marriage, P.W. 2 is the Barber who attended the marriage ceremony, P.W. 7 is another co-villager. These are the witnesses upon whom the prosecution relied for establishing its case. Other witnesses were formal witnesses namely P.W. 1 was a co-villager of the accused persons who witnessed the bringing out of the dead body from inside the well, P.W. 4 was the doctor who conducted the post mortem examination and P.Ws.8, 9, 10 and 11 are the Police Officers who took part in the registration and investigation of the case. The material witnesses were P.Ws. 2, 3, 5, 6 and 7 who deposed about the prosecution allegations. On going through the impugned judgment it is seen that the learned trial Court has discussed in detail the oral evidence of these witnesses. The material witnesses were P.Ws. 2, 3, 5, 6 and 7 who deposed about the prosecution allegations. On going through the impugned judgment it is seen that the learned trial Court has discussed in detail the oral evidence of these witnesses. All of them have stated in a parrot like manner that the bridal party demanded a cash of Rs. 40,000/- immediately before the marriage which was complied and that immediately after the function the bridal party demanded a colour T.V. and a fan and threatened with dire consequences and that the victim while visiting her parents on three occasions had stated about the demand of dowry and torture meted out towards her even to the extent that she was apprehending danger to her life. But most peculiarly it was found out that all those witnesses had not stated these allegations while they were earlier examined by the Police and had given their statements under Section 161, Cr.P.C. All these witnesses were confronted with their earlier statements which were also duly confronted to the Investigation Officer and it was found out that their statements regarding the demand of cash at the time of marriage, demand of further dowry articles immediately after the marriage, the visit of the victim to her parents on three occasions and her statements regarding dowry demand, torture or apprehension of danger were not at all whispered by these witnesses in their earlier statements much less in the F.I.R., which prompted the learned trial Court to observe that all these statements as given by these witnesses were nothing but after thoughts. 8.The defence in course of cross examination of these witnesses has confronted them with their earlier statements in detail that they had not stated about such allegations before the Police and the Investigating Officer has also been confronted with the said statements saying that all these witnesses have not stated about the aforesaid allegations in their statements recorded under Section 161, Cr.P.C. expect giving bald statements that there was some demand of dowry. In a case of the present nature where allegations of serious offences have been made the prosecution could not have been allowed to escape with superfluous evidence by making out new stories through the depositions of the witnesses before the Court which were found to be clear after thoughts. In a case of the present nature where allegations of serious offences have been made the prosecution could not have been allowed to escape with superfluous evidence by making out new stories through the depositions of the witnesses before the Court which were found to be clear after thoughts. 9.It was also found out in course of trial that excepting one hematoma found out in the parietal region of the deceased there was no other external injury and the cause of death was due to asphyxia caused due to drowning. The doctor being asked has stated that hematoma as found could have been possible while the victim came into contact with any hard or blunt object during her fall inside the well. Since there was no other external injury on the body of the victim, the learned trial Court has observed that any torture or physical assault to the victim soon before her death was not made out so as to establish an offence under Section 304-B, I.P.C. Apart from these factual discrepancies and deficiencies in the prosecution case some other aspects have also been taken into consideration by the learned trial Court like non-examination of material witnesses and un-explained delay in lodging the F.I.R. It was the story developed in course of trial that in course of the third visit of the victim to her parental house she apprehended danger to her life. The informant’s son Saroj Nanda went and called the son-in-law from Bhubaneswar and after the discussion the victim was left in her matrimonial house. It was also revealed that the said Saroj Nanda had visited the matrimonial house of the victim earlier but neither the informant nor his wife had ever visited their daughter in her matrimonial house. There was no letter or any other form of communication from the victim while staying in her matrimonial house alleging demand of dowry or torture. But the said Saroj Nanda was not examined as a witness for the prosecution before the Court. Thus it was observed by the learned trial Court that the said witness could have focused more light on the actual state of affairs and withholding such witness without any assigned reason created an adverse inference against the prosecution case. But the said Saroj Nanda was not examined as a witness for the prosecution before the Court. Thus it was observed by the learned trial Court that the said witness could have focused more light on the actual state of affairs and withholding such witness without any assigned reason created an adverse inference against the prosecution case. 10.Secondly, the informant got the news of the death of his daughter at 8 P.M. on 26.10.1994 whereas the F.I.R. was registered at Tumusinga Police Station at 10.30 P.M. on 28.10.1994 i.e. after two days. Of course it has been mentioned in the F.I.R. that the informant along with others proceeded to Kamakhyanagar Police Station immediately after getting the news and there from being accompanied by one Grama Rakhi they had been to Tumusinga Police Station and lodged a complaint but no evidence has been adduced to show that the informant had gone to Kamakhyanagar Police Station. The allegation that there was no official present at Police Station when the informant had gone there has also been falsified by the evidence of the concerned police officers by stating that they had no information regarding the affairs prior to receipt of the written F.I.R. which was forwarded by the S.P. Dhenkanal. The informant has lodged the F.I.R. with S.P., Dhenkanal on 27.10.1994. Thus there was some unexplained delay in lodging the F.I.R. which created further doubt regarding the prosecution story which is seen to have been developed in course of evidence led before the Court. Another aspect that has also been taken note of by the learned trial Court was that the informant as a witness to the inquest over the dead body of his daughter had mentioned that the cause of death of his daughter was not known to him. This position definitely create a suspicious circumstance that had there been such incident like apprehension of danger to her life stated to by the victim just 10 days prior to the alleged occurrence, the informant could not have forgotten to mention all those facts in the F.I.R. or in his statement on the inquest report or in his statement given to the Police in course of investigation. Thus I find no substantial reason to disagree with the learned trial Court that the allegations as levelled against the petitioners were not established beyond all reasonable doubts. Thus I find no substantial reason to disagree with the learned trial Court that the allegations as levelled against the petitioners were not established beyond all reasonable doubts. 11.The learned trial Court in the impugned judgment has summed up his finding that the evidence led by the prosecution making out a developed story created doubt regarding its genuineness and that there was no whisper regarding demand of a colour T.V. or fan in the F.I.R. even though the F.I.R. is not supposed to be an encyclopedia and that there was no acceptable evidence to show that the victim was subjected to cruelty or harassment soon before her death and that the cause of death was due to drowning as opined by the doctor and that there was no other injury on the body of the victim excepting one hematoma which could have been possible in course of fall inside the well and that one material witness namely the brother of the deceased was not examined by the prosecution and there was a unexplained delay in lodging the F.I.R. 12.It is well settled law that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial Court but only in a case when the judgment of the trial Court is found to be perverse. The word “perverse” in terms as understood in law has been defined to mean “against weight of evidence”. It has been the observation of the Hon’ble apex Court in a decision reported in (2006) 10 SCC 313 , Kallu Alias Masih and others – vrs. – State of M.P., as follows: “While deciding an appeal against acquittal, the power of the appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exits to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with by an appellate Court, where the judgment of the trial Court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial Court merely because a different view is possible. The appellate Court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt.” 13. It will not reverse the decision of the trial Court merely because a different view is possible. The appellate Court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt.” 13. Taking into consideration all the materials as well as legal aspects, the learned trial Court has reached the conclusion that the prosecution was not successful in establishing the allegation against the accused persons, which I find no convincing reason to interfere with. 14.Accordingly the appeal stands dismissed for being devoid of any merit. Appeal dismissed.