M.M. Das, J.
1. This appeal has been preferred against the judgment and order of acquittal passed in S.T. No. 4 of 1987 by the learned Sessions Judge, Puri, on leave being granted under Section 378(3) Cr.P.C. The respondents-accused persons faced their trial for alleged commission of offences under Sections 302/34 and 498-A/34 IPC. The deceased-Asahamani was the wife of the respondent No, 1-Laxman. It was alleged that she was murdered on 11.9.1985 at about 8.00 p.m. on being subjected to cruelty by the respondent-accused persons in furtherance of their common intention.
2. The prosecution case in brief is that accused-Laxman married the deceased-Ashamani about 7 to 8 years before the date of occurrence. The marriage took place under peculiar circumstances, i.e., the marriage of the deceased was settled with another man but on the date fixed for the marriage, the negotiation failed, for which, the maternal uncle of the deceased searched for another bridegroom and on negotiation with the parents of the accused-Laxman, they agreed for the marriage. But as they were not prepared, the father of the deceased agreed to meet the expenses of the marriage. P.W. 3, the brother of the deceased and P.W. 11, her maternal uncle went to the house of the accused-Laxman in a 'BARA DHARA' party to bring the accused-Laxman to the house of the bride. It has been alleged by the prosecution that at this stage, accused-Laxman demanded a sum of Rs. 5,000/- to accompany them to the house of the bride. The said amount was paid, and, thereafter/the marriage was performed in the house of the deceased. After the marriage, the accused Laxman and the deceased went to the house of the accused-Laxman and lived as husband and wife. On the 18th day of the marriage, the deceased, as per custom, returned to her parents' house. She remained their for about six months and when the accused-Hara Dei (mother of the accused-Laxman) came to the house of the deceased to take her back, the parents of the deceased on the pretext that they were not prepared with the articles which were to be given to their daughter as per custom, wanted further time to send the deceased to her in-laws house. The deceased continued to stay in the house of her parents for 2 to 3 months thereafter. The accused-Laxman filed an application before the court to issue a search warrant in respect of his wife. The search warrant was issued and the deceased appeared before the learned Magistrate and expressed that she wanted to stay with her father, and, accordingly, she was allowed to continue to reside with her father. It has been further alleged by the prosecution that 12 to 15 days thereafter, the deceased stealthily left the house of her parents and went to the house of her husband and stayed there. Thereafter, the parents of the deceased as per the custom sent the 'PUANI SAJA'. Due to action taken by the accused-Laxman and due to the deceased coming away to her husband, without informing her parents, the family of the deceased were highly aggrieved and none of them visited the house of the accused persons for about 2 and 1/2 years. Neither the accused persons nor the deceased visited the house of the parents of the deceased. They led a happy conjugal life and were blessed with a son. But, unfortunately, the said child died 7 to 8 days after his birth. The father of the deceased, i.e., P.W. 1 was ill and hospitalized. Sometime after, the accused-Laxman and the deceased visited P.W.I in the hospital, which restored normalcy in the relationship between the families. About one year thereafter, the deceased again gave birth to a still-born child. It has been alleged that after giving birth to a stillborn child, the accused persons started ill-treating the deceased, which she complained before her parents during her visit to her parents' house. In September, 1985, the deceased along with the younger brother of her husband-Laxman came to her parents house and asked her father to give Rs. 10,000/- as desired by the accused persons. She also complained that she was being assaulted by her husband and showed an injury on her lipsi P.W. 1, the father of the deceased did not pay the said amount of Rs. 10,000/- but stated before the deceased that only after consulting his sons, he will take a decision. The deceased did not stay with her parents but wanted to go back to her matrimonial home. As she apprehended that she would be assaulted, she asked her parents to accompany her. Accordingly, the mother of the deceased went with her to the house of the accused-Laxman in a Rickshaw which was being driven by P.W. 3. The father of the deceased also followed them in a bicycle. On reaching the house of the accused, they requested the accused Laxman and the in-laws, not to assault the deceased and asked them to wait till P.W 1 takes a decision in consultation with his sons. In the night of the alleged date of occurrence, at about 3.00 a.m., three persons from the village of the accused came to the house of P.W. 1 and informed him about the death of his daughter. They also told him that the deceased was removed to headquarters hospital, Puri. Getting such information, P.W. 8 - Biswanath Nayak (brother of the deceased) along with his father, P.W. 1, went to the hospital. On reaching the hospital, they found the deceased to be already dead. P.W. 1 went back to his house to give information to other family members and again returned to the hospital in the morning. From there, he went to the Town Police Station, Puri to lodge an information and being directed by the officer of the said Police Station, he went to the Sadar Police Station, Puri. But the O.I.C. Puri Sadar Police Station refused to accept the information and rebuked him. P.W. 8 also went to the Puri Town Police Station, where he allegedly lodged an F.I.R. However, U.D. Case No. 38 of 1985 was registered on the basis of the report received from the Casualty of the Hospital. The S.I; of Police (P.W. 19) enquired into the said U.D. Case, held inquest over the dead body and prepared the inquest report (Ext. 1). He despatched the dead body for post mortem examination under the dead body challan Ext. 9 through the constable -P.W. 18. After return of the said constable, the wearing apparels of the deceased were seized under a seizure list Ext. 1. The said wearing apparels and the ornaments found on the body of the deceased have been marked as M.O. - 1 to M.O.- IV. P.W. 19 also examined some witnesses as well as the accused persons and caused a search in the house of the accused persons. He received the post mortem report and seized two outdoor tickets which were in the name of the deceased as per Ext. 10. He also moved the learned S.D.J.M. to send the viscera for chemical examination and thereafter, handed over the case to the O.I.C., who transferred the same to the Putt Sadar Police Station on the question of jurisdiction. The O.I.C., Puri Sadar Police Station on receiving the U.D. F.I.R. No. 38 of 1985 along with other papers, registered the same as U.D. Case No, 10 of 1985 and took up the enquiry on being directed by the Superintendent of Police on 9.10.1985 and after taking into consideration the post mortem report, he drew up an F.I.R. (Ext. 7) for the alleged offence under Sections 302/34 IPC against the accused persons and investigated into the case. On completion of investigation, finding a prima facie case submitted charge sheet against the accused persons under the penal sections already mentioned above read with Sections 3 and 4 of the D.P. Act. The learned S.D.J.M. on receiving the charge-sheet took cognizance of the offences and committed the case to the Court of Session, where the accused pleading not guilty faced the trial after framing of charge.
3. The defence case is a total denial of the allegation leveled by the prosecution against them. It is the case of the defence that the marriage between the accused -Laxman and the deceased was performed all on a sudden. The said accused never demanded Rs. 5,000/-, as alleged. The accused persons never sent the deceased to the house of P.W. 1 to ask for Rs. 10,000/- . The deceased was never tortured and she has committed suicide on assuming that she cannot conceive a child again. The accused Laxman further built up a case that on the fateful day during the evening he returned to his house from Puri and reached his house at about 11.00 p.m. On reaching his house he found a gathering there and on enquiry, he was informed that his wife took poison. Immediately he sent information to the parents of the deceased through his youngest brother. The deceased at that time was in the back-yard of the house who was brought into the house by her mother-in-law and one Chandramani, saline water was given to her and thereafter, she was removed to the hospital by a rickshaw. There was delay in finding a doctor in the hospital and by the time, the doctor came, the deceased expired. The parents of the deceased were present in the hospital. It was only subsequently, they concocted this case against the accused persons.
4. The prosecution, in order to prove its case, examined as many as 19 witnesses. P.Ws 1 and 2 are the parents of the deceased and P.W. 8 is her brother. The deceased and her mother in the evening of the fateful night were carried by P.W. 3 in his rickshaw to the house of the accused persons. The independent witnesses P.Ws 4, 5, 6, 7, 8 and 10 are the witnesses, who stated to have seen a gathering in front of the house of the accused persons and have further stated to have heard that the people of that gathering were discussing about the assault on the deceased. P.W. 11 is a barber, who accompanied P.W. 8 to the house of the accused, when P.W. 8 went as 'BARA DHARA'. P.W. 12 is a neighbour of the accused and P.W. 13 is the rickshaw puller in whose rickshaw, the deceased was removed to the hospital. P.W. 15 is the doctor who attended the deceased at the hospital and found her dead. The post mortem was conducted by the doctor, P.W. 14, who has also proved the chemical examination report Ext. 4 and his opinion is, Ext.5. P.W. 18 is the constable who carried the dead body for post mortem. P.Ws 16, 17 and 19 are the Investigating Officers, who conducted the investigation of the case at different stages. The defence did not choose to examine any witness.
5. After the trial, the learned Sessions Judge on elaborately discussing the statements given by prosecution witnesses and taking into consideration the post mortem report along with other exhibits and M.Os came to the finding that the prosecution has miserably failed to establish the charge under Sections 302/34 IPC and Sections 498-A/34 IPC against the accused persons, beyond reasonable doubt. Thus, giving the benefit of doubt acquitted the accused persons from the charges framed against them.
6. Learned Counsel for the State vehemently argued that the finding of the learned trial court that no conclusion can be drawn that it is a case of homicidal death, is ex facie erroneous, as from the materials available on record, it would be clear that the death was homicidal in nature.
7. We have perused the impugned judgment, where the learned court below, on specifically considering the question as to whether the death of the deceased was homicidal or not, has considered the statements given by the. P.W. 14, who conducted the postmortem and initially reserved his opinion with regard to the cause of death' till obtaining the chemical examination report of the viscera of the deceased and after receiving the said report, finding that no common metallic, insecticidal and alkaloidal poisons were detected in the viscera, opined that the death was due to asphyxia caused by smothering and it is a homicidal one, along with his statement that in case of suicide by taking opium death results due to asphyxia and the signs of asphyxia will be manifested in case of death due to taking opium as well as his statement wherein P.W. 14 agreeing with the 'Criminal Jurisprudence and Toxicology' by Modi stated that it may not be possible to detect any trace of opium at the postmortem stage by examining the viscera or any other part of the body though opium is the cause of death, came to the finding that it cannot be conclusively held that the death was homicidal in nature.
8. The learned trial court has also considered the reasons for which, he doubted the chemical examination report, the same being non-availability of the seal of the A.D.M.O. We do not find any reason to interfere with the conclusion arrived at by the learned trial court that it cannot be conclusively held that the death of the deceased was homicidal in nature.
9. In view of the above, the charge under Sections 302/34, IPC becomes unsustainable.
10. With regard to the alleged offence under Sections 498/34 IPC, we find that the P.W. 1 who is the father of the deceased stated that when he went to the house of the accused persons, the accused-Laxman asked for an amount of Rs. 10,000/- to start business with a promise to repay the money. We further find from the evidence of P.Ws 1 and 2 that the accused Laxman wanted the money to open a shop with a promise to repay the same. Thus, the learned trial court has rightly concluded that the request for payment of the above amount cannot be either termed to be illegal or connected with the alleged ill treatment to the deceased, We further find that there is no cogent material brought before the court by the prosecution, to prove that the deceased was being ill treated on account of non-fulfilment of unlawful demand. Section 498-A IPC stipulates that who ever being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished for imprisonment for a term which may extend to three years and shall also be liable to fine. 'Cruelty' has been defined in Section 498-A(a) & (b) IPC. The nature of allegations made in the present case by the prosecution with regard to ill treatment/cruelty does not satisfy the definition of 'cruelty' as given in Section 498-A IPC, which envisages that any wilful conduct of such nature, which 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 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, shall amount to cruelty.
11. In the facts of the present case, as we find that no material has been brought out by the prosecution to bring home the charge under Section 498-A IPC, we are of the opinion that the findings of the learned trial court that the prosecution failed to prove the said charge under Sections 498-A/34 IPC cannot be held to be either illegal or erroneous. It is naive to state that when the approach of the trial court as to the evidence adduced in the case is found to be legal, proper and reasonable and no two views can be taken on the evidence led by the prosecution, the acquittal order passed by the learned trial court should not be interfered with.
12. The plenitude of power available to the court hearing an appeal against acquittal is the same as is available to a court hearing an appeal against an order of conviction. But the court will not interfere solely because a different plausible view may arise on the evidence. Thus, in an appeal, against an order of acquittal, the Court should not interfere merely because, it thinks that the view taken by the trial court is not correct. The said order can only be interfered with only if the appellate court thinks that the view taken by the trial court is wrong. It is not sufficient for the prosecution to show that a different conclusion is possible on the materials available on record, for the appellate court, to interfere with an order of acquittal. The prosecution is required to show that the findings of the learned trial court are perverse.
13. In the facts and circumstances of the case, on considering all the materials available on record, since We find that though the materials available may prompt this Court to reach a different conclusion and since the conclusions arrived at by the learned trial court are also plausible, this is not a fit case where this Court should interfere with the order of acquittal recorded by the learned trial court.
14. In the result, we do not find any reason to interfere with the impugned judgment and order of acquittal. The Government Appeal is accordingly dismissed.
B.P. Das, J.
15. I agree.