Full Judgment
L. Mohapatra, J.
1. This appeal has been filed against the orders of conviction and sentence passed by the learned Sessions Judge, Keonjhar in S.T. Case No. 100 of 2000. The appellant who is husband of the deceased Kabita Jena has been found guilty for commission of offence under Sections 498A, 302 and 304B of the Indian Penal Code (in short 'I.P.C.') as well as under Section 4 of the Dowry Prohibition Act (in short 'D.P. Act'). He has been sentenced to imprisonment for life for his conviction under Section 302 I.P.C. and has further been sentenced to imprisonment for one year for his conviction under Section 498A I.P.C. He has also been sentenced to imprisonment for one year for conviction under Section 4 of D.P. Act, but no separate sentence has been awarded for conviction under Section 304B I.P.C.
2. The case of the prosecution is that the appellant had married the deceased Kabita Jena in the month of Asadha of 1999. At the time of marriage, cash of Rs. 30,000/-, gold ornaments and other house-hold articles were given. There was further demand of Rs. 5,000/- and a gold chain from the side of the bride groom and it was promised on behalf of the father of the deceased that further demand of Rs. 5,000/- and a gold chain would be met after improvement of his financial condition. It is further alleged by the prosecution that after marriage the deceased had sent information on 2 to 3 occasions intimating that she was being frequently reminded by her in laws to fulfil the further demand. There was a super cyclone in the month of November, 1999 and a day or two thereafter P.W.2 the brother of the deceased had been to the house of the appellant to ascertain about her well being. He was informed by the deceased that the appellant demanded a sum of Rs. 5,000/- and a gold chain and for non-fulfilment of the said demand, she was subjected to torture. Thereafter, P.W.2 requested the appellant for adjustment and assured to fulfil the demand and returned home. On 4.11.1999 early morning information was received by P.W.1 that the deceased had expired. Thereafter, P.Ws. 1 and 2 along with their paternal uncle and some villagers rushed to the village of the appellant and found the dead body of the deceased kept on a rope cot beneath a tree. It was ascertained from the appellant that the deceased had taken poison on the previous night and committed suicide. The father of the appellant on the other hand said that the deceased expired due to medicine reaction. It was ascertained from some of the villagers that on the night of 3.11.1999 the deceased was assaulted for non-fulfilment of the dowry demand and suspecting foul play the FIR was lodged at about 4.30 P.M. The case was registered for commission of the aforesaid offences and after investigation, charge sheet was also filed for commission of the said offences.
3. The plea of the appellant is complete denial of the charges and he has further complained of false implication. A plea was taken by the appellant to the effect that the deceased died due to fall on the court-yard dashing her head to the cemented verandah for epileptic fits. Though the prosecution examined fourteen witnesses to prove the charges, the defence examined two witnesses to prove his defence. The trial Court relying on the evidence of the witnesses such as P.Ws. 1, 2, 4 and 5 as well as the medical report found the appellant guilty of the charges and convicted him thereunder.
Out of the fourteen witnesses examined on behalf of the prosecution, P.Ws. 1 and 2 are the brothers of the deceased. P.Ws. 4 and 5 are the uncles of P.Ws. 1 and 2 as well as the deceased. P.W.3 is a witness who had accompanied P.W.2 to the house of the appellant three days prior to the occurrence. P.Ws. 6 and 12 are the witnesses to the inquest. P.W.8 is the constable, who is a witness to the seizure of wearing apparels of the deceased and P.Ws. 9 and 10 are the priest and barber respectively, who conducted the marriage. P.W.11 is a seizure witness and P.Ws. 13 and 14 are the Investigating Officers.
4. Shri B. Panda, the learned Counsel appearing on behalf of the appellant assails the impugned judgment on the ground that the appellant could not have been convicted for commission of offence under Sections 302 as well as 304B I.P.C. It was also contended that there is absolutely no evidence on record to prove the charge under Section 302 I.P.C. except the evidence of the doctor P.W.7, who conducted post-mortem examination. So far as charge under Section 304B I.P.C. is concerned, it was contended by the learned Counsel for the appellant that the evidence with regard to demand of dowry or torture for non-fulfilment of demand of dowry as stated by P.Ws. 1, 2, 4 and 5 cannot be accepted considering the fact that such statements made in Court were neither reflected in the FIR nor in the statements recorded by the police during investigation under Section 161 Cr.P.C. It was also contended by the learned Counsel for the appellant that once the evidence with regard to demand of dowry and torture for non-fulfilment of demand of dowry are discarded by the Court, the offence under Section 304B cannot be attracted.
5. Learned counsel for the State referring to the evidence of P.Ws. 1, 2, 4 and 5 strenuously contended that the evidence with regard to demand of dowry and torture for non-fulfilment of demand of dowry as stated by these witnesses have been rightly relied upon by the trial Court while convicting the appellant. It was also contended by the learned Counsel for the State that even if the charge under Section 302 I.P.C. fails, considering the above evidence regarding demand of dowry and torture, the appellant should have convicted under Section 304B I.P.C.
6. We have carefully examined the entire evidence adduced before the trial Court. P.W.1 is the brother of the deceased who had lodged the FIR. In the FIR an omnibus allegation has been made to the effect that after the marriage the in-laws of the deceased made a further demand of Rs. 5,000/- and a gold chain. There is no specific allegation in the FIR that it is the appellant who demanded further Rs. 5,000/- and a gold chain. Though it is stated in the FIR that prior to the occurrence the deceased had sent information on 2 to 3 occasions about the demand of dowry, the appellant has not been specifically implicated therein. In his evidence also P.W.1 has stated that there was demand of dowry of Rs. 5,000/- and a gold chain which was due to be paid. Few days before death of the deceased, her younger brother P.W.2 had visited the house of the appellant and was intimated by the deceased that she was being ill-treated by the appellant and that P.W.2 promised to fulfil the demand after harvesting. Though this witness had stated that he heard from some villagers that on the previous night of death the deceased she was subjected to assault by the appellant in the room, he could not say the names of the persons from whom he got such information. From the evidence of the I.O. P.W. 14, we find that this witness had not stated before him that on the previous night the deceased was rebuked, assaulted by the appellant demanding cash. He had stated before the I.O. that he heard from the villagers that the deceased committed suicide by taking poison. He had not stated before the I.O. that the deceased was ill-treated with cruelty for Rs. 5,000/- though he had only stated that there was a demand of Rs. 5,000/-.
P.W. 2 is another brother of the deceased, who has stated that at the time of marriage a cash of Rs. 30,000/- had been given to the appellant. He had also stated that there was further demand of Rs. 5,000/- and a gold chain. This witness had visited the house of the appellant on 2 to 3 occasions and during the last visit, i.e. 2 to 3 days prior to the occurrence, the decease complained before him that she was being ill-treated and assaulted by the appellant for Rs. 5,000/- and a gold chain which were due to be paid. She also requested to fulfil the demand. Thereafter, he assured that further demand shall be fulfilled after harvesting. Two days thereafter he was informed by P.W.1 that the deceased had died. Thereafter, he along with others went to the house of the appellant and found the deceased lying on a rope cot. Opening the cover from the dead body he could see the mark, which appeared to have been caused by throttling on the neck of the deceased. On his query, the father of the appellant said that the deceased died due to medicine reaction. Thereafter, he ascertained from two to three villagers, whose name he could not disclose, that on the previous night there was quarrel between the deceased and the appellant. This witness, as it appears from the evidence of P.W. 14, had not stated before the I.O. that on the previous night the villagers heard the sound of assault on the deceased, which he heard from the villagers. He had also not stated before the I.O. that the deceased was being ill-treated with cruelty or she was being assaulted for extracting Rs. 5,0007-, though he had only stated that there was demand of Rs. 5,000/-. P.W.3 is a witness who had accompanied P.W.2 to the house of the appellant but he has stated nothing about demand of dowry or torture. P.W.4 was the mediator in the marriage between the appellant and the deceased. He has only stated that a cash of Rs. 30,000/- was paid before the marriage. He has stated nothing more about the further demand. P.W.5 is a witness who solemnized the marriage and gave Kanyadana. He has stated that after marriage Rs. 5,000/- and a gold chain had been demanded and Rs. 30,000/- had been paid at the time of marriage. He has also stated that he visited the house of the appellant twice after the marriage and the deceased complained before him that she was being ill-treated, assaulted and threatened unless further demand of Rs. 5,000/- and a gold chain is met. From the evidence of P.W.14 the I.O., it appears that this witness had not stated before him that he had performed Kanyadan in the marriage or that it was reported to him that deceased was being ill-treated and assaulted for non-payment of Rs. 5,000/- or that the deceased requested him for early payment of Rs. 5,000/- and a gold chain. P.W.6 is a witness to the inquest and P.W.7 is the doctor, who conducted post-mortem examination. Though P.W.7 only found swelling on the neck on dissection he found some haemorrhage in the neck. He ultimately opined that the cause of death was due to asphyxia on account of external pressure over the neck. In cross-examination he stated that except swelling on the neck, there was no external injury on the neck. P.W.8 is a constable in whose presence the wearing apparels of the deceased were seized. P.W.9 is the priest who was present at the time of marriage and P.W.10 is the barber who also witnessed the marriage. P.W.11 is a witness to the seizure and P.W-12 is also a witness to the inquest. P.Ws. 13 and 14 are the I.Os.
7. On overall analysis of the entire evidence as stated above, it appears that the prosecution has not been able to adduce any evidence whatsoever to show that in the night of occurrence the deceased and the appellant had stayed in one room. The father of the appellant was sleeping on the verandah. In absence of any eyewitness to the occurrence, it was the duty of the prosecution to prove that the deceased and the appellant were sleeping together in the previous night so that some presumptions could be drawn against the appellant regarding his involvement in commission of the alleged offence. In absence of any evidence to show that the appellant and the deceased had shared the same room in the night of occurrence, specially on consideration of the evidence that there was another person who is father-in-law of the deceased present in the house, it cannot be conclusively said that it is the appellant who might have committed the murder of the deceased. On consideration of the evidence as stated above, we are of the view that the prosecution has not been able to prove the charge under Section 302 I.P.C. even by circumstantial circumstance. So far as Section 304B I.P.C. is concerned, the presumption can be drawn provided the death occurred within seven years of marriage and not in normal circumstances and there was allegation of torture for non-fulfilment of demand of dowry. It is admitted that near about four months after the marriage the death occurred. So far as demand of dowry and torture for non-fulfilment of demand of dowry are concerned, the evidence of P.Ws. 1, 2, 4 and 5 is relevant. As indicated earlier, none of these four witnesses during their examination in course of investigation has stated before the police regarding such demand of dowry or torture at the hands of the appellant for non-fulfilment of demand of dowry. Even in the FIR also an omnibus statement has been made but no specific allegation has been brought against the appellant so far as demand of dowry is concerned. Therefore, it appears that all the four witnesses who had not stated regarding demand of dowry or consequential torture for non-fulfilment of demand of dowry before the police during investigation, developed the prosecution case in Court by making such statements. In view of such nature of evidence, we are of the view that neither the offence under Section 498A IPC nor under Section 4 of the D.P. Act is made out. In absence of evidence with regard to demand of dowry and torture for non-fulfilment of demand of dowry, the offence under Section 304B of is also not made out. We, therefore, find that the prosecution has miserably failed to prove any of the charges beyond reasonable doubt.
8. We accordingly allow the appeal and set aside the impugned judgment and order of conviction and sentence passed by the learned Sessions Judge, Keonjhar in S.T. Case No. 100 of 2000 under Sections 498A, 302 and 304B I.P.C. as well as Section 4 of the D.P. Act against the appellant. It is stated that the appellant is in custody for the last nine years by now. If that be so, the appellant Haladhar Behera be set at liberty forthwith unless his detention is required in any other case.
B.K. Patel, J.
9. I agree.