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2017 DIGILAW 451 (ORI)

Surendra Patra v. State of Odisha

2017-04-21

SATRUGHANA PUJAHARI

body2017
JUDGMENT : S. PUJAHARI, J. This appeal is directed against the judgment of conviction and order of sentence dated 14th May, 2010 passed by the learned Addl. Sessions Judge, Bolangir in Sessions Case No.95/48 of 2009, convicting the appellant under Sections 498A, 304-B of the Indian Penal Code, 1860 (for short “the IPC”) and Section 4 of the Dowry Prohibition Act and sentencing him to undergo rigorous imprisonment for various terms. 2. Gist of the prosecution case is that Ukiabati @ Dahita Patra (hereinafter referred to as the ‘deceased’) had married the appellant – Surendra Patra on 28.03.2007. Her parents are resident of village-Lakhana under Nuapada Police Station. Appellant’s parents reside in village-Mayabarha under Bolangir Sadar Police Station. The incident giving rise to the criminal case took place on 06.09.2008 around 11 a.m. when the deceased is alleged to have committed suicide by setting fire to herself in her father-in-law’s house at Mayabarha. It is incorporated in the F.I.R. that at the time of marriage, there was demand of dowry of Rs.20,000/- in cash, one gold necklace and one Sambalpuri saree by the appellant. The father of the deceased had paid Rs.10,000/- in cash and assured to pay the balance amount, gold chain and Sambalpuri saree at an early date. After marriage, members of the family of the in-laws of the deceased, particularly her husband were not satisfied with Rs.10,000/- provided as dowry and wanted the balance amount of Rs.10,000/-, gold chain and Sambalpuri saree to be given. The said demand having not been satisfied by Basudev Sahu, the father of the deceased (P.W.4), the appellant and his parents continuously harassed and tortured the deceased. She was also physically assaulted by the appellant. Due to such continuous torture, the victim was terribly frightened and often intimated her parents to fulfill the demand raised without further delay. In the meantime around one and half years after marriage, she gave birth to a male child. The deceased’s mother – Banita Sahu (P.W.5) stayed with her daughter in her marital home for around two and half months to take care of the new born. Notwithstanding her presence, the appellant being dissatisfied with non-payment of dowry, used to assault the deceased despite of assurance of P.W.5 to provide the dowry articles including money at an early date. The deceased’s mother – Banita Sahu (P.W.5) stayed with her daughter in her marital home for around two and half months to take care of the new born. Notwithstanding her presence, the appellant being dissatisfied with non-payment of dowry, used to assault the deceased despite of assurance of P.W.5 to provide the dowry articles including money at an early date. Matter stood thus, on 06.09.2008 around 11 a.m. P.W.4 received intimation from one Khirod Parua (P.W.3) through Angan Sahu (not examined) about the death of the deceased by burn. On arrival, P.Ws.4 and 5 found the deceased lying dead by burning. Suspecting foul play, P.W.4 reported the matter at Bolangir Sadar Police Station whereafter investigation was taken up. In course of investigation, the police examined witnesses, prepared inquest report, sent the dead body of the deceased for postmortem examination, seized the remnants of her wearing apparels and other incriminating materials. On completion of investigation, charge-sheet was laid under the Sections noted earlier. The appellant pleaded not guilty to the charge and completely denied the allegations made by the prosecution. His plea was that the deceased died a natural death and the case has been fabricated against him with oblique motive. To establish the charges against the appellant, the prosecution examined 11 witnesses, out of whom, P.W.4 is the father of the deceased and P.W.5 is her mother. P.W.11 is the Medical Officer who had conducted autopsy on the dead body and P.W.10 is the Investigating Officer. Other prosecution witnesses examined are formal witnesses of deceased’s parental village and official witnesses. Prosecution also filed several documents including the postmortem report and inquest report vide Exts.1 to 13. The appellant has not adduced evidence in support of his plea of denial. Assessing the evidence on record, the learned trial court held, inter-alia, that the deceased died within seven years of marriage by committing suicide due to the physical and mental torture associated with the willful conduct of the appellant towards her which is relatable to demand of dowry. On the said findings, the learned trial court held that the prosecution had been able to establish the charges under Sections 304-B and 498-A of IPC read with Section 4 of the D.P. Act against the appellant and, accordingly, convicted the appellant under the aforesaid Sections and sentenced him in the manner noted earlier. 3. On the said findings, the learned trial court held that the prosecution had been able to establish the charges under Sections 304-B and 498-A of IPC read with Section 4 of the D.P. Act against the appellant and, accordingly, convicted the appellant under the aforesaid Sections and sentenced him in the manner noted earlier. 3. Analyzing the evidence led on behalf of the prosecution, the learned counsel for the appellant submitted that there being no iota of evidence that “soon before the death”, the deceased was subjected to cruelty and harassment by the appellant in connection with demand of dowry, and otherwise there being gross discrepancy in the evidence of P.W.4 and inter-se discrepancy in the evidence of P.Ws.4 and 5 as to the nature of allegation of demand of dowry, the conclusion of guilt recorded by the trial court is unsustainable either in law or in fact. 4. Assailing the aforesaid contention, the learned Addl. Government Advocate submitted that there being overwhelming evidence that “soon before her death” the deceased was subjected to cruelty and harassment on demand of dowry and when the unnatural death occurred within seven years of marriage, with the aid of Section 113-B of the Indian Evidence Act, the learned trial court has rightly convicted the appellant under Section 304-B of IPC. So far the conviction under Section 498-A of IPC and Section 4 of the D.P. Act, the learned Addl. Government Advocate contended that there is unimpeachable evidence in support of the charge as well. 5. Before adverting to the contentions raised, it will be apposite to quote the relevant statutory provisions to ascertain whether the evidence led falls within the ambit of those provisions. “304-B – Dowry Death – (1) 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 relative 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. Explanation – For the purpose of this subsection “dowry” shall have some meaning as in Sec.2 of the Dowry Prohibition Act, 1961 (2) whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” A perusal of the aforesaid section would go to show that in order to attract application of Section 304-B of IPC, the essential ingredients are as follows :- “(i) the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances; (ii) within seven years of her marriage; (iii) it must be shown that soon before the death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand of dowry.” 6. Section 113-B of the Indian Evidence Act mandates that once the aforesaid essential ingredients of Section 304-B of IPC are satisfied, the presumption under Section 113-B of the Indian Evidence Act automatically comes in. Hence, it would be profitable to have a look on the same which reads as thus:- “113-B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.-For the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)” 7. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B of IPC shows that there must be material to show that “soon before her death” the deceased was subjected to cruelty or harassment by her husband or relatives of her husband in connection with demand of dowry and her death was either due to burn, bodily injury or otherwise than in normal circumstances, i.e., it was neither for any accident nor for natural reason and occurred within seven years of her marriage. The term “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B of IPC are pressed into service. The term “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B of IPC are pressed into service. Prosecution is obliged to show that “soon before” the death of the bride in the aforesaid circumstances, there was cruelty or harassment and only in that case, presumption operates. “Soon before” is a related term and it would depend upon circumstances of each case. The Apex Court in the case of Kans Raj vrs. State of Punjab and others, (2000) 5 SCC 207 , in paragraph-15 have held as follows :- “xxxx xxxxx xxxxx “Soon before” is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time limit. This expression is pregnant with the idea of proximity test. The term “soon before” is not synonymous with the term “immediately before” and is opposite of the expression “soon after” as used and understood in section 114, Illustration (a) of the Evidence Act. These words would imply that the internal should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be “soon before death” if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.” It transpires that there must be a live link between the death of the deceased and cruelty and harassment she was subjected to for or in connection with any demand of dowry. In essence, there must be existence of a proximate and live link between the effect of cruelty based on demand of dowry and the resultant death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. Further, question is whether a case under Section 498 A of IPC has been made out even if accusation under Section 304-B of IPC fail. Sections 498-A reads as follows : “498-A. Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-For the purpose of this section, “cruelty” means – (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” Consequence of cruelty which is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the charge. ‘Cruelty’ has been defined in the explanation for the purpose of Section 498 A of IPC. But, under Section 304-B of IPC, if cruelty is relatable to the demand of dowry and death of the deceased has live link to within seven years of marriage. No such period is mentioned in Section 498-A of IPC. It is well settled law that a person charged and acquitted under Section 304-B of IPC can be convicted under Section 498-A of IPC without charge being there, if such a case is made out. [See – Akula Ravinder and others vrs. The State of Andhra Pradesh, AIR 1991 S.C.1142]. Section 498-A of IPC and Section 113-B of the Evidence Act include in their amplitude past event of cruelty. Period of operation of Section 113-B of the Evidence Act is seven years, presumption arises when a woman committed suicide within the prescribed period from the date of marriage. In such background, it is essential to ascertain what Section 4 of the D.P. Act, 1961 provides :- “4. Penalty for demanding dowry.-If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees. Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.” 8. In the backdrop of all such legal scenario, it is essential to scan the evidence of P.Ws.4 and 5, the parents of the deceased to satisfy the judicial conscience as to whether the learned trial court has rightly accepted their testimony and held the appellant guilty as aforesaid. 9. It is the evidence of P.W.5 that the marriage between her deceased daughter and the appellant was solemnized on 28.03.2007 in accordance with their caste custom. At the time of marriage, there was demand of Rs.20,000/- in cash along with one gold chain and Sambalpuri saree as dowry by the appellant. 9. It is the evidence of P.W.5 that the marriage between her deceased daughter and the appellant was solemnized on 28.03.2007 in accordance with their caste custom. At the time of marriage, there was demand of Rs.20,000/- in cash along with one gold chain and Sambalpuri saree as dowry by the appellant. In presence of Hadu Patra, the uncle of the appellant and another village gentleman – Lalman Sahu (P.W.6), P.W.4 gave Rs.10,000/- in cash as dowry to the appellant and assured to meet the balance dowry within a short period. Three months thereafter, the appellant demanding the balance of Rs.10,000/-, gold chain and Sambalpuri saree started torturing the deceased both physically and mentally. Due to such continuous torture, Khirod Parua (P.W.3) sent intimation over phone to meet the demand of dowry without further delay. P.W.4 accompanied with his wife (P.W.5) had proceeded to the house of the appellant and settled the matter for the moment. They stayed there for two to three days and returned home. One and half years thereafter, deceased gave birth to a male child and again P.Ws.4 and 5 proceeded to the house of the appellant and stayed there for few days. While P.W.4 returned home, P.W.5 stayed there for about one and half months to help her daughter in taking care of new born. After P.W.5 returned home from the marital home of the deceased, she narrated before P.W.4 as to how the deceased was subjected to regular physical torture for non-satisfaction of dowry. The matter stood thus, on 06.09.2008 around 11 a.m. P.W.5 received telephonic message from Khirod Parua (P.W.3) about the death of the deceased by burning. P.Ws.4 and 5 immediately rushed to village-Mayabarha and found the deceased lying dead in the courtyard with burn injuries all over. Suspecting foul play, P.W.4 lodged F.I.R. (Ext.1). 10. On scanning of such evidence, I find evidence in Court is consistent with the averments incorporated in the F.I.R. lodged soon after the death of the deceased. Nothing substantial is brought on record to discard his version about the demand of dowry. However, the evidence of P.W.5 revealed that on the date of marriage the appellant demanded Rs.10,000/-, gold chain and Sambalpuri saree. Nothing substantial is brought on record to discard his version about the demand of dowry. However, the evidence of P.W.5 revealed that on the date of marriage the appellant demanded Rs.10,000/-, gold chain and Sambalpuri saree. Fifteen days after marriage, the deceased had come to their place and disclosed before her that her husband dissatisfied with the dowry provided and demanding amount of Rs.10,000/-, Sambalpuri saree and gold chain and she assured her daughter to satisfy the demand without further delay. The mother witness added that during Dashara of that year she had been to the marital home of the deceased to bring her for Dashara, but the appellant did not allow her to accompany her mother reiterating the demand of Rs.10,000/- along with gold ornaments and Sambalpuri saree. Having received information that the deceased conceived she had been to her house where in her presence the appellant assaulted the deceased demanding Rs.10,000/-, gold chain and Sambalpuri saree. After the deceased gave birth to a male child, P.Ws.4 and 5 had again been to her house where in presence of P.W.5 the appellant subjected the deceased to physical assault demanding the aforesaid amount. This is the substance of evidence of P.W.5 relating to demand of dowry. Of course, unlike the evidence of P.W.4, the P.W.5 has deposed that at the time of marriage appellant demanded Rs.10,000/- as dowry though the consistent case of the prosecution is that at the time of marriage there was demand of Rs.20,000/- towards dowry. However, in course of her examination-in-chief, P.W.5 has stated that the deceased had disclosed before her that being dissatisfied the appellant demanding Rs.10,000/- towards dowry. This further demand of Rs.10,000/- by the appellant supports the version of P.W.4 that initially P.W.4 had given Rs.10,000/- and for balance Rs.10,000/- this cruelty and harassment. This is a mere omission and commission in the evidence of P.W.4 which does not distort the prosecution version about the demand and extent of dowry. 11. The evidence of P.W.6 (Lalman Sahu) revealed that the deceased got married to the appellant on 28.03.2007 and at the time of marriage, the appellant demanded Rs.20,000/- in cash as well as one gold chain and Sambalpuri saree from P.W.4 and in his presence P.W.4 satisfied part payment of Rs.10,000/- at the marriage alter and assured to satisfy the rest after sometime. This witness has further stated that he heard from P.W.5 that for non-payment of balance dowry amount as demanded by the appellant, the deceased was subjected to continuous cruelty. After two years of marriage, he heard that the deceased was murdered for non-fulfillment of dowry demand. Hadu Patra is not examined by the prosecution. According to P.W.4, in presence of Hadu Patra and P.W.6 he paid the part dowry amount to satisfy the demand of the appellant which is in the marriage alter itself. 12. The evidence of P.Ws.4, 5 and 6 conclusively proved that before marriage appellant had demanded Rs.20,000/-, one gold chain and Sambalpuri saree as dowry and P.W.4 had given Rs.10,000/- to the appellant towards dowry in presence of Hadu Patra, the uncle of the appellant and P.W.6 – Lalman Sahu. Nothing substantial has been elicited in cross-examination to discard such consistent evidence of P.W.4 which is being corroborated in material particulars by the evidence of P.Ws.5 and 6. P.W.4’s version about demand of dowry and alleged payment of Rs.10,000/- is not dented. Neither it is in variance with the evidence of P.W.6. This material part of the prosecution case finds place in the F.I.R. lodged soon after the alleged unnatural death of the deceased. In presence of P.W.6 there was discussion about dowry and part payment was made to satisfy the appellant. There is overwhelming evidence that for non-satisfaction of demand, the appellant continuously subjected the deceased to cruelty as much as she was being assaulted in presence of P.W.4. The doctor (P.W.11) has stated the cause of death was due to asphyxia and neirogenic shock resulting from extensive thermal burn. It was an unnatural death which is otherwise than in normal circumstances. The fact of seizure of kerosene container and remnants of torn clothes and ashes from the house of the appellant and clinching evidence of P.Ws.4, 5 and 6 about demand of dowry relatable to marriage and continuous torture and harassment, was likely to drive the deceased to commit suicide. It is not a case of mere harassment or mere demand of property. The harassment was with a definite object to meet the unlawful demand of dowry. It has been committed for the purpose of coercing the woman to meet the demands which is made cruelty and punishable under Section 498-A of IPC. It is not a case of mere harassment or mere demand of property. The harassment was with a definite object to meet the unlawful demand of dowry. It has been committed for the purpose of coercing the woman to meet the demands which is made cruelty and punishable under Section 498-A of IPC. In other words, it is established that the beating or harassment was a view to force the wife either to commit suicide or to fulfill illegal demands of the husband. Similarly, all essential ingredients of Section 4 of the D.P. Act have been established from the evidence of P.Ws.4, 5 and 6. No rebuttal evidence has been brought to record to dislodge the presumption under Section 113-B of the Evidence Act. 13. Admittedly, the deceased got married to the appellant on 28.03.2007 and died on 06.09.2008 which is within a period of seven years from the date of marriage. A plain reading of Section 113-B of the Evidence Act, it is obvious that if a wife is subjected to cruelty or harassment for or in connection with demand of dowry by the person who is accused of causing of death, then the Court shall presume that such person has caused the dowry death. The learned trial court in a very lengthy judgment has discussed all evidence thread bare in the backdrop of legal principles and relevant statutory provisions and reached to a highly reasonable conclusion that the evidence of P.Ws.4, 5 and 6 being consistent and convincing much reliance can be placed on such testimony and, accordingly, recorded the findings that prosecution has successfully established the charge under Sections 304-B and 498-A of IPC read with Section 4 of the D.P. Act. The learned trial court has discussed all such aspects in great details supported by reasons and law which appears to this Court on re-appreciation of the evidence on record to be just and proper. Hence, this Court sees no reason to take a different view. So, there is absolutely no second opinion that it is the appellant who caused the dowry death of the deceased within the meaning of Section 304-B of IPC. Conclusion of guilt recorded by the learned trial court when supported by strong reasons relying/analyzing the evidence on record and addressing the defence version to be unworthy of credence, the same warrants no interference of this appellate court. 14. Conclusion of guilt recorded by the learned trial court when supported by strong reasons relying/analyzing the evidence on record and addressing the defence version to be unworthy of credence, the same warrants no interference of this appellate court. 14. Resultantly, for the reasons aforesaid, I find no merit in this criminal appeal and, accordingly, it stands dismissed. The impugned judgment of conviction and order of sentence recorded by the learned Addl. Sessions Judge, Bolangir are hereby confirmed. L.C.R. received be sent back forthwith along with a copy of the Judgment.