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2016 DIGILAW 520 (ORI)

State of Orissa v. Dasaratha Saraf

2016-07-13

I.MAHANTY, S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. This is an appeal under section 378 of the Code of Criminal Procedure preferred by the State of Orissa challenging the impugned judgment and order dated 03.09.1997 passed by the learned Sessions Judge, Kalahandi-Nuapada at Bhawanipatna in Sessions Case No.63 of 1996 in acquitting the respondents Dilip Saraf (R-5), Jagat Saraf (R-4), Smt. Indumati Saraf (R-3), Dasaratha Saraf (R-1) and Dasmati Saraf (R-2) of the charges under sections 498-A, 304-B, 302 read with section 34 of Indian Penal Code. 2. Respondent Dilip Saraf (R-5) was the husband, respondent Jagat Saraf (R-4) was the father-in-law, respondent Smt. Indumati Saraf (R-3) was the mother-in-law, respondent Dasaratha Saraf (R-1) was the brother-in-law (husband’s elder brother) and respondent Dasmati Saraf (R-2) was the sister-in-law (husband’s younger sister), respectively, of Chhino @ Santilata Dei (hereafter ‘the deceased’). Satya Saraf (P.W.1), father of the deceased presented the First Information Report (Ext.1) before the Officer in Charge, Dharamgarh Police Station on 20.04.1996 stating therein that the marriage between the deceased and the respondent Dilip Saraf (R-5) was solemnized two years prior to the date of occurrence as per their prevailing customs and at the time of marriage, the informant had presented some articles including one bhari of gold to the deceased. Six months after the marriage, the deceased was subjected to physical and mental torture in connection with demand of five bharies of gold for which the deceased stayed in her paternal house for about six months. Meeting was convened for settlement of dispute and then the deceased was left in the company of her husband. Two months prior to the date of occurrence, the deceased had again come to her father’s place along with her husband and stayed for about a month and with much persuasion, she was taken to her in-laws house by her husband. It is the further prosecution case, as per FIR that on 20.04.1996 at about 5.00 p.m. to 6.00 p.m., one Kumudini Sunani came to the house of the informant and gave message to the lady members of the house of the informant that the deceased had committed suicide by hanging herself. The informant while returning home from his works in the evening hours was informed on the way by one Brundaban Saraf (P.W.3) to proceed to the house fast. On reaching home, the informant came to know about the death of the deceased. The informant while returning home from his works in the evening hours was informed on the way by one Brundaban Saraf (P.W.3) to proceed to the house fast. On reaching home, the informant came to know about the death of the deceased. It is further stated in the F.I.R. that the deceased was tortured by her in-laws family members since the date of her marriage who were demanding five bharies of gold towards dowry. On the basis of such First Information Report, Dharamgarh P.S. Case No. 34 of 1996 was registered under sections 498-A, 304-B, 302 read with section 34 of the Indian Penal Code. P.W.13 Santosh Kumar Nayak, Officer in Charge of Dharamgarh Police Station took up investigation of the case, examined the informant and deputed a police constable to the spot to guard the dead body. On 21.04.1996 at about 7.30 a.m., the I.O. proceeded to the spot and found the dead body still hanging from the roof. He released the dead body in presence of the Executive Magistrate and conducted inquest over the dead body and prepared inquest report Ext.2. He sent the dead body to Dharamgarh Sub-Divisional Hospital for post-mortem examination, seized blood stained earth and sample earth from the spot vide seizure list Ext.7. After post-mortem examination, the constable produced the wearing apparels of the deceased which were seized as per seizure list Ext.4. On 21.04.1996 the Investigating Officer (P.W.13) handed over the charge of investigation to Sri Dilip Kumar Deo (P.W.14), Circle Inspector of Police, Dharamgarh. P.W.14 examined witnesses, received post mortem report, arrested the respondents Dilip Saraf (R-5), Jagat Saraf (R-4), Smt. Indumati Saraf (R-3) and Dasmati Saraf (R-2) and forwarded them to Court on 29.04.1996. He also seized dowry articles as per seizure list Ext.8 and on 20.07.1996, he again handed over the charge of investigation to P.W.13 who took steps for sending the seized articles to R.F.S.L., Berhampur for chemical analysis through the learned S.D.J.M., Dharamgarh and received the chemical examination reports (Exts. 11 and 12). P.W.13 seized one cot and gave it in the zima of P.W.1 under zimanama Ext.13. On 27.07.1996 P.W.13 arrested respondent Dasaratha Saraf (R-1) and forwarded him to Court and on the very same day, he submitted charge sheet under sections 498-A, 304-B, 302 read with section 34 of the Indian Penal Code against all the five respondents. 3. P.W.13 seized one cot and gave it in the zima of P.W.1 under zimanama Ext.13. On 27.07.1996 P.W.13 arrested respondent Dasaratha Saraf (R-1) and forwarded him to Court and on the very same day, he submitted charge sheet under sections 498-A, 304-B, 302 read with section 34 of the Indian Penal Code against all the five respondents. 3. After observing due committal formalities, the case of the respondents was committed to the Court of Session for trial where the learned Sessions Judge, Kalahandi-Nuapada at Bhawanipatna framed charges against the respondents under sections 498-A, 304-B, 302 read with section 34 of the Indian Penal Code on 30.10.1996 and since the respondents denied the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and to establish their guilt. 4. In order to prove its case, the prosecution examined fourteen witnesses. P.W.1 Satya Saraf is the informant in the case and he was the father of the deceased and stated about the demand of gold of five tolas by the respondents and torture on the deceased for non-fulfillment of such demand. He is also a witness to the inquest and took the articles given to the deceased at the time of marriage in zima. P.W.2 Smt. Padma Saraf was the mother of the deceased and she did not support the prosecution case for which she was declared hostile. P.W.3 Brundaban Saraf was the cousin brother of the deceased who also did not support the prosecution case for which he was declared hostile. P.W.4 Purna Chandra Saraf was the brother of the deceased and he stated about the demand of five tolas of gold by the respondents. He is also the scribe of the First Information Report. P.W.5 Vikhya Saraf is the nephew of the informant who stated that the husband of the deceased told him that his parents and others were creating disturbance as nothing was given to the deceased at the time of his marriage. He is also a witness to the inquest. P.W.6 Dr. He is also the scribe of the First Information Report. P.W.5 Vikhya Saraf is the nephew of the informant who stated that the husband of the deceased told him that his parents and others were creating disturbance as nothing was given to the deceased at the time of his marriage. He is also a witness to the inquest. P.W.6 Dr. Ganesh Chandra Majhi was the Assistant Surgeon attached to Sub-Divisional Hospital, Dharamgarh who conducted post-mortem examination over the dead body of the deceased and opined the cause of death was due to strangulation which was homicidal in nature and he found multiple incised wounds over the thighs of the deceased which were opined to be ante mortem in nature. P.W.7 Baibasuta Pradhan was the constable attached to Dharamgarh Police Station who carried the dead body for post mortem examination and produced the wearing apparels of the deceased, command certificate and rope before the Investigating Officer after post-mortem examination. P.W.8 Sankar Behera is a witness to the seizure of blood stained earth and sample earth from the spot under seizure list Ext.7. P.W.9 Netra Saraf is a co-villager of the informant who stated about the disclosure made by the deceased regarding disturbance created by her in-laws family members demanding gold and silver. P.W.10 Pankaj Saraf is another co-villager who also stated about the disclosure made by the deceased regarding quarrel of her in-laws family members with her demanding gold and silver. P.W.11 Subedar Pradhan was the Additional Tahasildar-cum-Executive Magistrate, Dharamgarh who remained present at the time of inquest over the dead body. P.W.12 Dharamananda Mund stated about the seizure of articles given at the time of marriage which were produced by the respondent Dilip Saraf (R-5) under seizure list Ext.8. P.W.13 Santosh Kumar Nayak was the Officer in Charge of Dharamgarh Police Station and P.W.14 was the Circle Inspector of Police, Dharamgarh and both of them are the Investigating Officers. The prosecution exhibited fourteen documents. Ext.1 is the plain paper F.I.R., Ext. P.W.13 Santosh Kumar Nayak was the Officer in Charge of Dharamgarh Police Station and P.W.14 was the Circle Inspector of Police, Dharamgarh and both of them are the Investigating Officers. The prosecution exhibited fourteen documents. Ext.1 is the plain paper F.I.R., Ext. 2 is the inquest report, Ext.3 is the Zimanama, Ext.4 is the seizure list of wearing apparels, Ext.5 is the post mortem report, Ext.6 is the command certificate, Ext.7 is the seizure list of sample earth and blood stained earth, Ext.8 is the seizure list of articles given at the time of marriage, Ext.9 is the dead body challan, Ext.10 is the copy of the forwarding letter, Exts.11 and 12 are the chemical examination reports, Ext.13 is the zimanama and Ext.14 is the copy of requisition. The prosecution also proved four material objects. M.O.I is the saree, M.O. II is the saya and M.O. III is the blouse of the deceased respectively and M.O.IV is a rope in a bundle. 5. The defence plea was one of denial and it was pleaded that the deceased had suicidal tendency and she had attempted to commit suicide on several occasions and that she was moving here and there like a mad woman and in that condition, she died. No witness has been examined on behalf of the defence nor has any document been proved on behalf of the defence. 6. The learned Trial Court after analyzing the evidence on record held that there are clinching evidence available on record to show that the deceased and her husband were coming to the father’s place of the deceased but there is no evidence that they were coming to the village of the informant as the other respondents were harassing the deceased and her husband for non-fulfillment of dowry. The learned Trial Court further held that the prosecution has not adduced any cogent, sufficient and convincing evidence to the satisfaction of the Court that due to non-fulfillment of demand of dowry, the deceased was ever tortured, beaten and driven out of the house forcibly and that she was forced to commit suicide. The learned Trial Court further held that the prosecution has not adduced any cogent, sufficient and convincing evidence to the satisfaction of the Court that due to non-fulfillment of demand of dowry, the deceased was ever tortured, beaten and driven out of the house forcibly and that she was forced to commit suicide. The learned Trial Court has been pleased to further held that the evidence on record do not suggest that the deceased was murdered by the respondents and to screen the evidence of murder, the respondents hanged the deceased by means of a rope from the roof and that a genuine doubt came to the mind of the Court and therefore, benefit of doubt should go to the respondents. 7. Mr. Janmejaya Katikia, learned Additional Government Advocate appearing on behalf of the State placed the impugned judgment as well as the evidence of the witnesses and contended that there are ample materials on record to prove the demand of gold by the respondents after the marriage which could not be fulfilled by the informant for which the deceased was frequently being sent to her father’s place. He further contended that when the death of the deceased was on account of strangulation which was opined to be homicidal in nature and the deceased was remaining in the house of her in-laws at the time of her death, in absence of any explanation by the respondents regarding the cause of her death, the learned Trial Court should have held that the respondents have failed to discharge the burden of proof which were especially within their knowledge. He further contended that since the impugned judgment of the learned Trial Court is highly unreasonable and the view taken therein is not sustainable, the same should be set aside and the respondents should be convicted of the offences charged. The learned counsel for the respondents on the other hand supported the findings of the learned Trial Court and contended that in view of the materials available on record, the learned Trial Court was quite justified in taking a view in favour of the respondents and it cannot be said that the view taken is perverse and therefore, there is no scope of interference in the appeal against acquittal. 8. 8. Law is well settled that in a case of appeal against acquittal, the Appellate Court is fully competent to reappreciate, reconsider and review the entire evidence on record so also the Trial Court's conclusion with respect to both facts and law and take its own decision but due weight must be given to the decision of the Trial Court. There must be substantial and compelling reasons for holding that the Trial Court was wrong and to overrule or otherwise disturb the Trial Court's acquittal. Where the conclusion of the learned Trial Court is palpably wrong with regard to the facts or based on an erroneous view of law and the approach of the Trial Court in dealing with the evidence was patently illegal and the judgment was manifestly unjust and unreasonable and the material evidence has been ignored or misread and thereby resulted in “grave miscarriage of justice”, the Appellate Court should interfere with the order of acquittal. 9. From the First Information Report, it appears that there is no allegation regarding demand of dowry prior to or at the time of marriage and it is mentioned therein that the demand was raised six months after the marriage. P.W.1, the informant has specifically stated in his evidence that before the marriage or at the time of marriage, there was no demand of gold or any other articles made by the respondents from him as dowry and the marriage was performed smoothly without any demand and ten days after the marriage, the deceased along with her husband came to his house and at that time also there was no demand made by any of the respondents and he also found that the deceased and her husband were living happily. The informant has further stated that deceased along with her husband stayed in his house for a period of six months after one year and three months of their marriage and during that period they were living happily. He has further stated that the deceased and her husband were living separately from other respondents in separate mess and that the respondents never demanded or told about gold to him but they demanded through the deceased. The informant further stated that nine months after marriage, the deceased for the first time told him that the respondents were demanding five tolas of gold. The informant further stated that nine months after marriage, the deceased for the first time told him that the respondents were demanding five tolas of gold. Such a statement cannot be accepted inasmuch as he has stated that he did not go to village Chilichila (village of the respondents) to know whether the respondents were in fact demanding five tolas of gold or not and he has also not informed in that regard either to the Ward Member or Gountia or to any other gentleman either of his own village or that of the village of the respondents. The conduct of the informant after hearing regarding demand from the deceased is quite unnatural and is not in accordance with the acceptable human behavior of a father. Such a conduct rather indicates that everything was normal and there was no demand of dowry by any of the respondents. P.W.2, the mother of the deceased has also stated that the respondents were not demanding anything from them either directly or through the deceased. She has further stated that the husband of the deceased did not say anything to her regarding demand of gold. She has further stated that she had no direct knowledge regarding dowry and she could only know from her husband (P.W.1). She has further stated that the respondents did not demand anything from them either before the marriage, at the time of marriage or after the marriage. P.W.3 was the cousin brother of the deceased and he has stated that the deceased never told in his presence that the respondents were demanding four to five tolas of gold from P.Ws. 1 and 2 as dowry. P.W.4, the brother of the deceased has stated that he had no direct knowledge regarding demand of five tolas of gold by the respondents from P.W.1. He has further stated that there was no demand at the time of marriage of the deceased. P.W.5 Vikhya Saraf who is the nephew of the informant stated that except the husband of the deceased, none of the accused persons have demanded anything from him. He further stated that six to seven months after marriage, respondent no.5 Dillip Saraf demanded some gold and silver from him. Again he stated that after one year of marriage, the husband of the deceased for the first time demanded gold and silver from him. He further stated that six to seven months after marriage, respondent no.5 Dillip Saraf demanded some gold and silver from him. Again he stated that after one year of marriage, the husband of the deceased for the first time demanded gold and silver from him. He admits that he has not told about such demand either to the Police, Sarpach, Ward Member and Ex-Gountia of the village. Such contradictory statements of P.W.5 and particularly his non-disclosure regarding any demand by the respondent no.5 before others create doubt about the authenticity and the veracity of his evidence. P.W.9 stated that when he asked the deceased as to why she was coming frequently to the village of her father, she told that her father-in-law, mother-in-law and others were creating trouble for gold and silver. Such a statement cannot be accepted as he stated that after the marriage, the deceased and her husband were living happily and whenever the deceased was coming to their village with her husband, he found both of them in a happy mood. He further stated that the father of the deceased never told him about any dispute between the respondents and the deceased in any matter. He further stated that the deceased did not tell him that the respondents were creating trouble or quarrelling with her regarding any matter. P.W.10 who was the nephew of the informant has also stated that there was no demand of dowry made by any of the respondents prior to the marriage of the deceased. Though P.W.10 stated that the deceased told him that her father-in-law, mother-in-law, elder brother of her husband and sister of her husband were quarrelling with her regarding gold and silver but such statement cannot be believed as the other family members of the deceased have not alleged anything regarding demand made by the other in-laws family members of the deceased. Thus, on careful examination of the evidence of all the family members of the deceased, we find that there is no sufficient material and clinching evidence that there was any demand of dowry either prior to the marriage, at the time of marriage or after marriage by any of the respondents or any torture on the deceased in connection with demand of dowry. 10. 10. The ‘cruelty’ which is required to be proved for commission of offence under section 498-A of the Indian Penal Code can be either mental or physical. The explanation to section 498-A of the Indian Penal Code defines “cruelty”. The concept of cruelty and its effect depends upon the social and economic status of the parties and it varies from individual to individual. If the cruelty is to be judged by any wilful conduct of the accused on the victim then it is to be proved that it was of such a nature that it was likely to drive the victim lady to commit suicide or to cause any grave injury or danger to life, limb or health of the victim. In other words, the treatment made by the accused must cause reasonable apprehension in the mind of the victim lady that her living with the accused will be harmful and injurious to her life. Similarly, if the cruelty is to be judged by harassment of the victim then it is to be proved that the harassment was made with a view to coerce her or any person related to her to meet any unlawful demand. Mere unlawful demand of property by the accused without any proof of harassment on the victim to meet such demand will not attract the ingredients of the offence under section 498-A of the Indian Penal Code. Even though there are materials on record to show that the deceased met with an unnatural death within seven years of her marriage, in absence of any clinching evidence that there was any demand of dowry or that she was subjected to cruelty or harassment in connection with such demand soon before her death, the ingredients of the offence under section 304-B of the Indian Penal Code are not attracted. Thus we find no infirmity in the impugned judgment of the learned Trial Court that the ingredients of offences under sections 498-A and 304-B of the Indian Penal Code are not attracted. Thus we find no infirmity in the impugned judgment of the learned Trial Court that the ingredients of offences under sections 498-A and 304-B of the Indian Penal Code are not attracted. So far as the offence under section 302 of the Indian Penal Code is concerned, even though the doctor (P.W.6) has noticed ante mortem multiple small size incised wounds over the anterior aspects of both the thighs of the deceased and lacerated wound over the abdomen and also two ligature marks around the neck, one of which was oblique in nature and the other was circular and horizontal and opined the cause of death was due to strangulation which was homicidal in nature but he states that hyoid bone was not fractured and in the post mortem report Ext.5, he has mentioned the cause of death was due to hanging but he had scored through and written as strangulation. The dead body was found hanging from the roof by the Investigating Officer and saliva was coming out from the left side of her mouth. He has further stated that the external feature mentioned were the symptoms of hanging as well as strangulation. When the evidence of the doctor is not clear and there are materials that the other respondents except respondent no.5 were living separately from the deceased and there is absence of material to show that the respondent no.5 was present in the spot house when the occurrence took place, it is very difficult to arrive at a conclusion that the respondents committed murder of the deceased by strangulating her neck with the rope in furtherance of their common intention. 11. On consideration of the materials available on record as well as on going though the findings of the learned Trial Court, it cannot be said that the view taken by the learned Trial Court in acquitting the respondents is palpably wrong or manifestly erroneous. Law is well settled that in a case of appeal against acquittal, even if two views are possible, the Appellate Court should not interfere with the conclusions arrived at by the learned Trial Court unless the conclusions are not possible. In absence of any infirmity or perversity in the impugned judgment of the learned Trial Court, we are not inclined to interfere with the same and accordingly, the impugned judgment and order of acquittal is upheld and the Government Appeal stands dismissed. In absence of any infirmity or perversity in the impugned judgment of the learned Trial Court, we are not inclined to interfere with the same and accordingly, the impugned judgment and order of acquittal is upheld and the Government Appeal stands dismissed. After issuance of warrant of arrest, the respondents nos. 1 to 4 surrendered before the learned Trial Court on 27.09.1999 and respondent no.5 surrendered on 11.10.1999 and they have been released on bail by the learned Trial Court. The respondents are discharged from the liability of their bail bonds. Their personal bonds and surety bonds stand cancelled. In the result, the Government Appeal stands dismissed. I. Mahanty, J. : I agree.