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2016 DIGILAW 844 (ORI)

Deelip Kumar Meher v. State of Orissa

2016-09-21

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. 1. The petitioner Deelip Kumar Meher has filed this revision petition challenging the impugned order dated 26.07.2016 passed by the learned Sessions Judge, Kalahandi, Bhawanipatna in Sessions Case No. 62 of 2004 in framing charges under sections 304-B/306/498-A of Indian Penal Code and section 4 of Dowry Prohibition Act against the petitioner. 2. As it appears the petitioner earlier approached this Court in Criminal Revision No.813 of 2004 challenging the order dated 03.11.2004 of the learned Trial Court in framing charges under sections 302/304-B/306/498-A of the Indian Penal Code. This Court vide order dated 04.07.2016 allowed the revision petition and quashed the impugned order and directed the learned Trial Court to readdress the charge hearing of the parties in exercise of the power under section 216 of the Cr.P.C. 3. The learned Trial Court on consideration of the submission raised by the learned counsels for both the sides has been pleased to observe that the doctor conducting post-mortem examination of the deceased has opined the cause of death of the deceased was due to asphyxia and suicidal hanging. The statements of the witnesses and inquest report also indicate about the finding of the body hanging from a beam in the house of the accused and the death of the deceased was within seven years of the marriage. The learned Trial Court further observed that the materials further indicate that the deceased suffered death otherwise than under normal circumstances and the statements of the informant and other witnesses indicate about demand of cash and motorcycle by the accused. The learned Trial Court further held that there is ground for presuming that the petitioner has committed offences under sections 304-B/306/498-A of Indian Penal Code and section 4 of the Dowry Prohibition Act and accordingly framed charge against the petitioner. The petitioner pleaded not guilty to the charge and claimed to be tried and accordingly, the case was posted for recording evidence of the witnesses. 4. The learned counsel for the petitioner Mr. The petitioner pleaded not guilty to the charge and claimed to be tried and accordingly, the case was posted for recording evidence of the witnesses. 4. The learned counsel for the petitioner Mr. Manas Chand challenging the impugned order of the learned Trial Court contended that there is no dispute that the marriage between the petitioner and the deceased Jambubati Meher was solemnized on 20.06.2002 and the unnatural death of the deceased took place on 27.03.2004 and as per the post mortem report, the cause of death of the deceased was asphyxia due to suicidal hanging but the other ingredients of the offence under section 304-B of the Indian Penal Code i.e. regarding cruelty to the deceased in connection with demand of dowry are absent and therefore, the learned Trial Court has committed illegality in framing charges under sections 304-B and 306 of the Indian Penal Code. The learned counsel for the petitioner further contended that there is absolutely no material on record that soon before the death, the deceased was subjected to cruelty in connection with demand of dowry. He placed the first information report, 161 Cr.P.C. statement of the informant as well as the statement of the mother of the deceased namely, Amruta Meher. 5. Mr. Jyoti Prakash Patra, learned Additional Standing Counsel on the other hand contended that there are materials available on record to indicate that the ingredients of the offences under sections 304-B and 306 of the Indian Penal Code are made out and at this juncture, it is not excepted of the Trial Court to shift the materials on record and when the Trial Court has come to a finding basing on the materials available on record that there are grounds to presume that the petitioner has committed the offences under sections 304-B and 306 of the Indian Penal Code along with other offences, this Court in exercise of revisional jurisdiction should not interfere with the impugned order. 6. Section 227 of Cr.P.C. deals with discharge of the accused. It confers special power on the Trial Judge to discharge the accused at the threshold, if upon consideration of the records and documents, the Trial Judge finds that “there is no sufficient ground” to proceed against the accused. 6. Section 227 of Cr.P.C. deals with discharge of the accused. It confers special power on the Trial Judge to discharge the accused at the threshold, if upon consideration of the records and documents, the Trial Judge finds that “there is no sufficient ground” to proceed against the accused. At the time of framing of charge, it is not necessary for the prosecution to establish beyond all reasonable doubt the accusations that have been brought against the accused. The Court is not required to hold a mini trial at that stage and to come to a conclusion that the materials adduced in the case warrant conviction. At that stage, the Court has to see whether materials available on record, if unrebutted can be sufficient to bring home the offence which is alleged against the accused. Law is well settled that even when the materials placed before the Court disclose grave suspicion against the accused then the Trial Court will be fully justified in framing the charge. 7. Coming to the contention of the learned counsel for the petitioner that there is absolutely no material that soon before the death of the deceased, she was subjected to torture in connection with demand of dowry which is one of the essential ingredients of the offence under section 304-B of the Indian Penal Code, law is well settled that the expression “soon before death” has not been defined either in the Penal Code or in the Evidence Act and therefore, in each case, the Court has to analyse the facts and circumstances leading to the death of the victim and then decide if there is any proximate connection between the demand of dowry and the act of cruelty or harassment and death. The expression “soon before” refers to a period either immediately before the death of the deceased or within a few days or few weeks before death. What is relevant is that there should be a perceptible nexus between the death of the deceased and the dowry related harassment or cruelty inflicted on her. No straight jacket formula can be laid down in fixing any time limit. The expression is pregnant with the idea of proximate test. 8. What is relevant is that there should be a perceptible nexus between the death of the deceased and the dowry related harassment or cruelty inflicted on her. No straight jacket formula can be laid down in fixing any time limit. The expression is pregnant with the idea of proximate test. 8. Considering the First Information Report which was lodged by none else than the father of the deceased namely, Padma Lochan Meher, it is apparent that there are allegations that there was demand of motor cycle as well as physical and mental torture on the deceased by the petitioner. It is also mentioned that after knowing about such torture, the informant had given Rs.20,000/-on one occasion and Rs.10,000/-on another occasion but in spite of that, the petitioner was expecting some more money. Looking at the 161 Cr.P.C. statement of the informant, it also appears that the petitioner demanded Rs.50,000/-and a motor cycle and subjected the deceased to physical torture. Coming to the statement of the mother of the deceased namely, Amruta Meher, it appears that in connection with the contract work, the petitioner and other family members were assaulting the deceased and she has stated about giving cash of Rs.5,000/-at one instance and Rs.10,000/-at the other instance. The brother of the deceased namely Santosh Meher has also stated that the petitioner, his parents have killed the deceased and the petitioner was always demanding the deceased to produce the original H.S.C. certificate and creating disturbance and he has also stated that his father had given Rs.30,000/-for the contract work of the petitioner. There are also other materials available on record against the petitioner which is not required to be analyzed at this stage in a detailed manner. 9. Considering the materials available on record and particularly the fact that the death has taken place within two years of marriage and as per the post mortem report, it is an unnatural death and there are sufficient materials available on record that the deceased was subjected to physical and mental torture in connection with demand of dowry and particularly in view of the provisions under sections 113-A and 113-B of the Evidence Act, I do not find any illegality or impropriety in the impugned order of the learned Trial Court and accordingly, the revision petition stands dismissed. 10. 10. Since the FIR was lodged on 30.03.2004 and the Sessions Case is also of the year 2004, the learned Trial Court is directed to expedite the trial and conclude the same within a period of six months from the date of receipt of the order, if possible by resorting to the procedure as laid down under section 309 of Cr.P.C. by conducting day to day trial. 11. It is made clear that any observation made while adjudicating this revision petition challenging the legality of framing charge should not influence the learned Trial Court and he has to strictly proceed with the evidence to be adduced by both the sides at the time of trial.