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2017 DIGILAW 346 (ORI)

Benudhar Parida v. State of Orissa

2017-03-30

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The appellants Benudhar Parida and Dayanidhi @ Daitari Parida along with five other co-accused persons faced trial in the Court of learned Addl. Sessions Judge, Jajpur in S.T. Case No. 137/39 of 1990 for the offences punishable under sections 304-B and 201 of the Indian Penal Code. The learned Trial Court vide impugned judgment and order dated 10.05.1991 acquitted the five co-accused persons of all the charges. The appellants were also acquitted of the charge under section 201 of the Indian Penal Code but they were found guilty under section 304-B of the Indian Penal Code and sentenced to undergo R.I. for a period of ten years and to pay a fine of Rs.2000/- (rupees two thousand only) each, in default of payment of fine, to undergo further R.I. for three months. 2. On 12.08.1989 P.W.6 Kanhu Charan Sahu who was attached to Jajpur Road G.R.O.P. as S.I. of Police registered Jajpur Road G.R.O.P. U.D. Case No. 18 of 1989 on receiving information over telephone from Biswanath Swain, Station Master of Jajpur Road Railway Station to the effect that P.A. Narseya, Station Master, Jenapur Railway Station gave him the message which was communicated to him by gang-man namely Govinda that on the down line between Jenapur and Jakhapur Railway Station at kilometer stand post no. 351/1, a dead body of a female was lying in three pieces on the railway track. P.W.6 took up inquiry of the U.D. Case. He arrived at the spot and found the dead body and noticed blood stain mark at the spot and he prepared the spot map Ext.2. He held inquest over the dead body and prepared the inquest report Ext.3. He sent the dead body for post mortem examination to Bhadrak Hospital where the dead body was identified to be that of Tilotama (hereafter ‘the deceased’) by Dairari Parida, elder brother and Benudhara Parida, elder father-in-law of the deceased and one Suka Mahanti. P.W.6 examined the witnesses at the spot where the dead body was lying. P.W.7 Dr. Bhagaban Dikhit who was attached to Sub-divisional Hospital, Bhadrak conducted post mortem examination over the dead body of the deceased on 13.08.1989 and he prepared the post mortem report Ext.6. He opined to have noticed five external injuries which were post mortem in nature. P.W.6 examined the witnesses at the spot where the dead body was lying. P.W.7 Dr. Bhagaban Dikhit who was attached to Sub-divisional Hospital, Bhadrak conducted post mortem examination over the dead body of the deceased on 13.08.1989 and he prepared the post mortem report Ext.6. He opined to have noticed five external injuries which were post mortem in nature. According to P.W.7, the injuries nos.1 to 4 were caused by a running train after the death of the deceased and he further opined that multiple fracture might have also been caused by running train. On 17.08.1989 P.W.6 received the post mortem report. On 19.08.1989 Ghanshyam Rout (P.W.1) who was the maternal uncle of the deceased lodged the first information report before the Superintendent of Police, Railways, Cuttack stating therein that the marriage between the deceased and the appellant no.1 Benudhar Parida was solemnized on 27.06.1989 in accordance with the Hindu rites and customs and at the time of marriage, out of the demand cash of Rs.10,000/- (rupees ten thousand) only by the bridegroom side, cash of Rs.5000/- (rupees five thousand) only was given. Gold ornaments were also given to the deceased. Since some of the demanded articles could not be given to the deceased, she was subjected to physical and mental torture by her in-laws and in that connection the deceased had written a letter to the informant. It is further stated that in the first information report that on 11.08.1989 in the night, the deceased was killed and her dead body was thrown on the railway track and there were no ornaments on the body of the deceased and the informant suspected that the deceased might have been brutally murdered. This report of P.W.1 was forwarded to Dharmasala Police Station and P.W.5 Rudra Charan Samal, Officer in charge of Dharmasala Police Station on receipt of such first information report, registered Dharmasala P.S. Case No.195 of 1989 on 24.08.1989 under sections 304-B/34 of the Indian Penal Code and himself took up the investigation of the case. P.W.6 Kanhu Charan Sahu received the information that the first information report lodged by P.W.1 had been sent to Dharmasala Police Station on the point of jurisdiction and accordingly, he sent all the records of the U.D. Case inquiry to Dharmasala Police Station. On 24.08.1989 P.W.5 examined the informant and other witnesses, visited the Jenapur Railway track. P.W.6 Kanhu Charan Sahu received the information that the first information report lodged by P.W.1 had been sent to Dharmasala Police Station on the point of jurisdiction and accordingly, he sent all the records of the U.D. Case inquiry to Dharmasala Police Station. On 24.08.1989 P.W.5 examined the informant and other witnesses, visited the Jenapur Railway track. On the same day, he visited of the house of the accused persons. On 08.09.1989 he arrested some of the accused persons and forwarded them to Court and on 28.10.1989, he made over the charge of the investigation to his successor P.W.8 Prafulla Kumar Mohanty. P.W.8 examined further witnesses, he seized one inland letter from P.W.1 on his production on 06.12.1989 as per seizure list Ext.9 and on completion of investigation, he submitted the charge sheet against the accused persons on 06.12.1989 under sections 498-A/304-B/201/34 of the Indian Penal Code. 3. After observing due committal formalities, the case of the appellants was committed to the Court of Session for trial where the learned Additional Sessions Judge, Jajpur framed charges against the appellants under sections 304-B/201 of the Indian Penal Code on 22.11.1990 and since the appellants refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt. 4. During course of trial, in order to prove its case, the prosecution examined eight witnesses. P.W.1 Ghanshyam Rout was the maternal uncle of the deceased and he is the informant in the case and he stated about the demand of dowry and disclosure made by the deceased before him in connection with demand of dowry. He further stated to have noticed the dead body of the deceased lying in the Railway track at Jenapur. He proved a letter vide Ext.10 stated to have been written by the deceased to him. P.W.2 Sukuti Rout was the grandmother of the deceased and she also stated about the demand of dowry and torture on the deceased by the appellants and she further stated that in her presence, the appellant no.1, the husband of the deceased demanded some dowry articles and cash. She further stated that the deceased gave a letter to her which she handed over to P.W.1. She further stated that the deceased gave a letter to her which she handed over to P.W.1. P.W.3 Jaganath Mohanty is the younger brother of the deceased and he also stated about the demand of dowry and torture on the deceased in connection with demand of dowry. He further stated to have noticed the dead body of the deceased lying near the railway track at Jenapur Railway Station. P.W.4 Krushna Bhuyan stated that two to three days prior to the marriage of the deceased, the accused persons Mohani Parida, Padana Parida and appellant no.2 Dayanidhi Parida took cash of Rs.5000/- and further demanded Rs.5000/- for the marriage. P.W.5 Rudra Charan Samal was the Officer in charge of Dharmasala Police Station who is the investigating Officer in the case. P.W.6 Kanhu Charan Sahu was the S.I. of Police attached to Jajpur Road G.R.O.P and he conducted the inquiry in connection with G.R.O.P. U.D. Case No.18 of 1989. P.W.7 Dr. Bhagaban Dikhit was the gyneac specialist attached to Sub-divisional Hospital, Bhadrak who conducted the post mortem examination over the dead body and proved the report Ext.6. P.W.8 Prafulla Kumar Mohanty was the Officer in charge of Dharmasala Police Station and he is the investigating officer. The prosecution exhibited nine documents. Ext.1 is the written report of P.W.1, Ext.2 is the spot map, Ext.3 is the inquest report, Ext.4 is the dead body challan, Ext.5 is the command certificate, Ext.6 is the post mortem report, Ext.7 is the carbon copy of letter of query, Ext.8 is the reply of P.W.7 and Ext.9 is the seizure list. 5. The defence plea of the appellants during trial was that the deceased was suffering from dysentery and she was brought to the house of the informant on 01.08.1989 for treatment and thereafter, she had not returned to her in-laws’ house at Krushnachandrapur and that the case has been foisted to harass the accused persons. Two witnesses were examined on behalf of the defence. D.W.1 Khajara Mohanty and D.W.2 Kulamani Karana stated about the defence plea. 6. The learned Trial Court after analyzing the evidence of record has been pleased to hold that the evidence of P.W.1 and P.W.3 cannot be said to be distorted as regards the identification made by them to the dead body of the deceased before P.W.6. D.W.1 Khajara Mohanty and D.W.2 Kulamani Karana stated about the defence plea. 6. The learned Trial Court after analyzing the evidence of record has been pleased to hold that the evidence of P.W.1 and P.W.3 cannot be said to be distorted as regards the identification made by them to the dead body of the deceased before P.W.6. It was further held that the non cross-examination of P.W.1 on matters of identification together with aforesaid findings has clinched the issue that the prosecution has been able to prove the corpus delicti to a moral certainty that it was the dead body of the deceased and that the first ingredient of the offence that the deceased died after about two months of her marriage has been proved. It was further held that the deceased was put to mental and physical cruelty for non-giving of dowry articles like cash of Rs.5000/- (rupees five thousand only), Palanka, radio, almirah which has been amply brought home by the prosecution. It was further held that the legal evidence has further fortified that the deceased died otherwise than under normal circumstances. The learned Trial Court further held that on evaluation of the facts as deposed by D.Ws., the plea of the accused persons that P.W.1 took the deceased with him on 01.08.1989 to his house has no substance. However, learned Trial Court acquitted the accused nos. 1, 2, 5, 6 and 7 and while acquitting the appellants of the charge under section 201 of the Indian Penal Code, found them guilty under section 304-B of the Indian Penal Code. 7. Mr. Sapan Kumar Pal, learned counsel for the appellants contended that the learned Trial Court has committed illegality in convicting the appellants under section 304-B of the Indian Penal Code in absence of any clinching materials that they had demanded dowry and subjected the deceased to physical and mental torture in connection with demand of dowry. He further contended that the evidence of the witnesses on the point of demand of dowry is highly contradictory and the presumption under section 113-B of the Evidence Act is not applicable in the case against the appellants. He relied upon the decision of the Hon’ble Supreme Court in the case of Baijnath Vrs. State of Madhya Pradesh reported in 2016 (8) Supreme 252 . Mr. He relied upon the decision of the Hon’ble Supreme Court in the case of Baijnath Vrs. State of Madhya Pradesh reported in 2016 (8) Supreme 252 . Mr. Chitta Ranjan Swain, learned Additional Standing Counsel for the State on the other hand while supporting the impugned judgment and order of conviction passed by the learned Trial Court contended that the family members of the deceased being the best witnesses to depose regarding the demand of dowry as well as torture on the deceased in connection with demand of dowry have stated about such aspect and there having no dispute that the deceased died an unnatural death within two months of the marriage, the learned Trial Court was quite justified in convicting the appellants under section 304-B of the Indian Penal Code. 8. The basic ingredients of offence under section 304-B of the Indian Penal Code requires that the death of a woman is caused by any burns, bodily injury or the death occurs otherwise than under normal circumstances, in any manner, within seven years of her marriage. It must also be proved that 'soon before her death', she had been subjected to cruelty or harassment by her husband or any of the relatives of her husband for, or in connection with, any demand for dowry. Such a death shall be then called 'dowry death' and the husband or the relative, as the case may be, shall be deemed to have caused such a death. Section 113-B of the Evidence Act lays down that if soon before her death, a woman is subjected to cruelty or harassment for, or in connection with any demand for dowry by the person who is accused of causing her death then the Court shall presume that such person has caused the ‘dowry death’. The presumption under section 113-B is a presumption of law and once the prosecution establishes the essential ingredients mentioned therein, it becomes the duty of the Court to raise a presumption that the accused caused the ‘dowry death’. Adverting to the contentions raised by the learned counsels for the respective parties and looking at the evidence on record, it is not disputed that the marriage of the deceased with the appellant no.1 was solemnized on 27.06.1989 and she died within two months of her marriage. P.W.7 Dr. Adverting to the contentions raised by the learned counsels for the respective parties and looking at the evidence on record, it is not disputed that the marriage of the deceased with the appellant no.1 was solemnized on 27.06.1989 and she died within two months of her marriage. P.W.7 Dr. Bhagaban Dikhit who conducted the post mortem examination over the dead body of the deceased at Sub-divisional Hospital, Bhadrak on 13.08.1989 stated that he found the dead body was separated from head and neck by lacerated injury and the doctor specifically opined that the injuries nos. 1 to 4 were caused by a running train so also multiple fracture injuries. He noticed five external injuries which according to him were post mortem in nature. He proved the post mortem report marked as Ext.6. The dead body of the deceased was identified by P.W.1 and P.W.3 and therefore, the learned Trial Court has rightly rejected the contention raised by the defence that it was not the dead body of the deceased. The evidence of the doctor practically has remained unchallenged and therefore, on the basis of the evidence adduced by the doctor, it is clear that the death of the deceased was otherwise than under normal circumstances and finding of the learned Trial Court on that score is absolutely justified. 9. Coming to the evidence of demand of dowry, P.W.1 to P.W.4 have stated about such aspect. P.W.1 has stated that the appellant no.2 Dayanidhi Parida and Padan Parida (acquitted) demanded Rs.10,000/- (rupees ten thousand) in cash in the marriage and also cot, almirah, radio out of which he paid cash of Rs.5000/- (rupees five thousand) and took some time for payment of the balance cash of Rs.5000/- (rupees five thousand) but he could not give cot, almirah and radio till the death of the deceased. He further stated that he went to the house of the appellants after about 15 days of the marriage where the deceased told him that false allegations are being leveled against her for non-giving of the balance cash amount and cot, almirah and radio and he assured the accused persons Padan Parida (acquitted), Ainthi Dei (acquitted) and appellant no.2 Dayanidhi Parida to give the demanded articles after the next visit of the deceased to his house. In the cross-examination, P.W.1 has stated that Chandramani Sahu of Krushnapur was the mediator in the marriage and he was not present when demand was made before the marriage. He further stated that he had not heard from any person that the deceased was put to harassment. Though he stated that appellant no.2 told him that the deceased was passing stool on the bed but he had never told the accused persons to leave the deceased in his house or in the house of her sister. P.W.2 Sukuti Rout is the grandmother of the deceased and she stated that when she visited the house of the appellants, the deceased told her that due to non-giving of cot, almirah and radio and balance cash of Rs.5000/- (rupees five thousand), false imputations are being made against her. She further stated that she stayed there for about seven days but could not meet the appellant no.1 Benudhar Parida, the husband of the deceased. However, she stated that during her stay, one day the appellant no.1 in presence of Padana Parida (acquitted) told her to give the articles such as Palanka, almirah, radio and cash where after the deceased would be provided with sufficient food and she gave assurance to provide the articles and cash. It has been confronted to P.W.2 and proved through the investigation officer (P.W.5) that she had not stated before him that during her stay in the house of the accused persons, once appellant no.1 Benudhar Parida in the presence of the Padana Parida (acquitted) told her to give Palanka, almirah, radio and cash where after the deceased would be provided with food. She has also not stated before the I.O. that she had assured the appellant no.1 and Padana to give Palanka, almirah, radio and balance cash amount. Thus P.W.2 who is a witness to the post-marriage demand raised by appellant no.1 cannot be believed as she stated about such aspect for the first time in Court and not in her previous statement before police. Thus P.W.2 who is a witness to the post-marriage demand raised by appellant no.1 cannot be believed as she stated about such aspect for the first time in Court and not in her previous statement before police. P.W.3 Jaganath Mohanty who is the younger brother of the deceased has stated that appellant no.2 Dayanidhi @ Daitari Parida and Mohani Parida (acquitted) demanded cash of Rs.5000/-(rupees five thousand only) for the marriage of the deceased with appellant no.1 and at the time of marriage, P.W.1 gave Rs.5000/- (rupees five thousand only) in cash and on the date of marriage, radio, Palanka and almirah were again demanded by appellant no.2 Dayanidhi @ Daitari Parida which could not be given and P.W.1 assured to give those articles on a subsequent date. P.W.3 further stated that the deceased told him that she had been abused for the non-giving of Palanka, almirah, radio and balance cash amount of Rs.5000/-(rupees five thousand) and that she was put to half diet and she further told that the appellant no.1 was assaulting her for non-giving of the aforesaid materials. P.W.3 further stated that the deceased told him that she was under threat that in the event of non-giving of dowry articles like almirah, Palanka, radio and the balance cash amount of Rs.5000/-(rupees five thousand only), she might be killed. It has been confronted to P.W.3 and proved through the investigating officer (P.W.5) that he had not stated in his statement that the appellant no.2 and Mohani Parida (acquitted) demanded cash of Rs.5000/- in the marriage. P.W.3 specifically stated in the cross-examination that before the marriage, there was no talk of dowry articles or cash amount. This statement creates doubt that before marriage, either appellant no.2 or any other accused demanded anything. P.W.4 Krushna Bhuiyan who is a neighbour of parents of the deceased has stated that two to three days prior to the marriage, the appellant no.2 Dayanidhi @ Daitari Parida and the accused persons Mohani Parida (acquitted) and Padana Parida (acquitted) took cash of Rs.5000/- (rupees five thousand only) and they further demanded of Rs.5000/- (rupees five thousand only) for the marriage. It is stated by P.W.4 that the cash of Rs.5000/- (rupees five thousand only) was paid in presence of the mediator. Admittedly, the mediator has not been examined in this case. It is stated by P.W.4 that the cash of Rs.5000/- (rupees five thousand only) was paid in presence of the mediator. Admittedly, the mediator has not been examined in this case. Thus so far as demand of dowry prior to marriage is concerned, when the evidence of P.W.3 is that before the marriage, there was no talk of dowry articles and cash amount, the evidence of other witnesses including P.W.3 that there was demand of cash and other articles prior to marriage appears to be a doubtful feature. P.W.1 has stated that the appellant no.2 and Padana Parida (acquitted) demanded such cash and other articles prior to marriage. P.W.2 is totally silent on the pre-marriage demand. P.W.3 stated that the appellant no.2 and Mohani Parida (acquitted) demanded cash of Rs.5000/- (rupees five thousand). There are discrepancies between the evidence of P.W.1 and P.W.3 regarding the amount of cash demanded by the accused persons. P.W.1 stated that the demand amount was Rs.10,000/- whereas P.W.3 stated that the demand amount was Rs.5,000/-. Though P.Ws. 1 and 3 have stated that apart from cash, other articles were also demanded at the time of marriage but P.W.4 is totally silent about the demand of any articles. Therefore, there is no consistency in the ocular evidence of the four witnesses to the demand prior to the marriage. There is absolutely no material available on record that the appellant no.1 Benudhar Parida demanded anything prior to marriage. Therefore, the finding of the learned Trial Court that the prosecution has proved that there was demand of cash and other articles prior to marriage by the two appellants cannot be accepted. So far as demand of dowry after the marriage is concerned, P.W.1 has only stated that the deceased told him that false allegation are being leveled against her for non-giving of cash amount and other articles. He has not stated as to who was demanding dowry after the marriage. Though P.W.2 has implicated appellant no.1 in connection with demand of dowry after marriage but she has not stated so before the police in her previous statement recorded under section 161 of Cr.P.C. and therefore, I am not inclined to place any reliance on her testimony on such aspect. The evidence of P.W.3 regarding demand of dowry is also not acceptable. The evidence of P.W.3 regarding demand of dowry is also not acceptable. The evidence of P.W.4 is totally silent regarding the demand made by any of the appellants after the marriage. Therefore, there is no specific and clinching material regarding demand of dowry after marriage by the appellants. So far as the cruelty aspect is concerned, the prosecution has relied upon a letter which is stated to have been written by the deceased to P.W.1. P.W.1 has stated that the deceased had written a letter (Ext.10) to him and sent it through P.W.2 who had visited Krushnachandrapur and that letter was seized by the police. He admitted that at the time lodging of the first information report, he had not produced the letter addressed to him. He further stated that about a month after the discovery of the dead body, he had given the letter to police. Though P.W.2 has stated that while returning from the house of the appellants, the deceased gave her a letter to be given to P.W.1 and accordingly, she gave that letter to P.W.1 but it has been confronted to her and proved through the investigating officer that she had not stated so in her previous statement about such aspect. Moreover, the letter was not shown to P.W.2 during trial. P.W.3 has not been shown the letter to identify the handwriting of the deceased. P.W.1 has stated that he had not read in any school. The letter has not been sent to any handwriting expert for comparison with the admitted handwritings of the deceased and opinion. On perusal of Ext.10, it reveals that there is no specific accusation against the appellants in connection with the demand of dowry. In case of Baijnath Vrs. State of Madhya Pradesh reported in 2016 (8) Supreme 252 , it is held as follows:- “32. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated pre-requisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith. 33. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113-B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.” In the present case since five of the co-accused persons have already been acquitted and there is no clinching materials against the appellants to have demanded dowry either prior to the marriage or after marriage or subjected the deceased to cruelty in connection with any non-fulfillment of demand of dowry, merely because the deceased died an unnatural death, the ingredients of offence under section 304-B of the Indian Penal Code would not be automatically attracted. Even though the defence plea that the deceased was taken to her father’s place on account of her ailment is discarded, since the prosecution has not proved the ingredients of offences under section 304-B of the Indian Penal Code, I am of the view that the impugned judgment and order of conviction of the appellants is not sustainable in the eye of law. Accordingly, the criminal appeal is allowed. The impugned judgment and order of conviction of the appellants under sections 304-B of the Indian Penal Code and the sentence passed thereunder is hereby set aside. The appellants are on bail by virtue of the order of this Court. They are discharged from the liability of their bail bonds. Accordingly, the criminal appeal is allowed. The impugned judgment and order of conviction of the appellants under sections 304-B of the Indian Penal Code and the sentence passed thereunder is hereby set aside. The appellants are on bail by virtue of the order of this Court. They are discharged from the liability of their bail bonds. The personal bonds and surety bonds stand cancelled. Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action.