Satyabhama Mohapatra Vs. Ramakanta Padhi and 3 ors. - Court Judgment

Excerpt:
criminal - evidence - appreciation of- sections 34, 304b and 498a of indian penal code, 1860 (ipc) - petitioner is informant who filed fir against respondents for offence under sections 34, 304b and 498a of ipc - trial court acquitted respondents from said charges - hence, present revision petition - held, evidence on record does not support theory of ill-treatment or cruelty on deceased by her husband or in-laws - trial court rightly appreciated evidences - court does not find any merit in revision application to interfere with impugned order of acquittal - hence revision dismissed - sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 6. learned counsel for the petitioner has made a strenuous effort to convince this court that the approach of the trial court is not only illegal but also in utter failure to discharge the onerous duty of punishing the wrong-doer. in that context, he argues that as per the ingredients of provisions under sections 498a/304b/34, ipc when the death of the deceased occurred not under normal circumstances and it occurred within a period of seven years of her marriage, learned assistant sessions judge should have properly read the evidence on record relating to the factum of cruelty and harassment to which she was subjected and should have held that the offence under section 304b, ipc is well made out. 8. learned counsel for the accused /opposite party advances argument not only supporting the impugned finding but also citing a good number of decisions in that respect in support of his argument. 6 who is an adjacent neighbour and a lady stands in a better footing inasmuch as there is no allegation against her that she is a gained-over witness.orderp.k. tripathy, j.heard.1. the informant in s.t. case no. 39/119 of 1995 has preferred this revision challenging the order of acquittal dated 26th march, 1996 of the court of assistant sessions judge-cum-chief judicial magistrate, balasore where the present opposite parties were the accused persons.2. the facts stated in the impugned judgment and during the course of argument in short is that tilatama padhi (hereinafter referred to as 'the deceased') married opposite party no. 1 in the month of baisakha 1994. he died due to poison on 13.1.1995. informant pw 2 is the paternal grand mother of the deceased being aunt (father's brother's wife) of her father, namely chintamani mohapatra (pw 3). two reports were lodged before the police, one on 13.1.1995 and the other on '21.3.1995 by pw 2 relating to the death of deceased. after completion of routine investigation, charge-sheet for the offence under sections 498a/304b/34, ipc was submitted against the opposite party members who faced the trial. allegations of the prosecution regarding dowry torture resulting dc/ry death of the deceased, is the crux of the allegations wherein the stand of the opposite parties was that of complete innocence.3. prosecution examined eight witnesses at the time of trial. as noted above, pw 3 is her father and pw 2 is the paternal grand-mother. pw 5 is a cousin and pw 1 was the scribe of the fir dated 13.1.1995, pw 6, is a lady neighbour residing adjoining to the house of the opposite party, members and pw 4 is the medical officer who conducted autopsy, whereas pw 8 is one of the investigating officers.4. the substance of the evidence of pws 2, 3 and 5 is that on account of nonpayment of rs. 5,000/- out of rs. 8,000/- of dowry amount settled at the time of marriage, there was some dissension with torture to the deceased and, ultimately, as a result of the refusal of (he opposite members to allow the deceased to go to her mother's house on the festive occasion that resulted as the immediate outcome in her death due to poison. evidence of pw 6 the neighbour of the opposite parties is that there was no dispute between the deceased on the one side, her husband and the in-laws on the other and there was no torture on her at all. from the evidence of pw 4 it reveals about the death due to poison without specifically mentioning if it was homicidal or suicidal. the evidence of pw 8 is relevant so far as the matter relating to confronting the contradictions in the evidence of pws 2, 3 and 5.5. learned assistant sessions judge on assessment of evidence or record, recorded the following findings :(i) the story as advanced in the course of trial regarding demand of dowry and torture to the deceased on account thereof is an afterthought development at the stage of trial inasmuch as no such allegation was levelled against the opposite party members either in the fir or in the statement of said fws recorded under section 161, cr.p.c. (ii) pw 6 the neighbour of the deceased and accused persons has unshakingly deposed in court about no torture on the deceased by her husband or in-laws. in view of the aforesaid glaring evidence, the evidence of pws 2 and 3 was not credible.the above were the principal reason to grant order of acquittal in favour of the opposite parties which is impugned in this revision.6. learned counsel for the petitioner has made a strenuous effort to convince this court that the approach of the trial court is not only illegal but also in utter failure to discharge the onerous duty of punishing the wrong-doer. in that context, he argues that as per the ingredients of provisions under sections 498a/304b/34, ipc when the death of the deceased occurred not under normal circumstances and it occurred within a period of seven years of her marriage, learned assistant sessions judge should have properly read the evidence on record relating to the factum of cruelty and harassment to which she was subjected and should have held that the offence under section 304b, ipc is well made out. in that connection, he places reliance on the case of upendra singh and 3 ors. v. the state, 1973 c.l.r. 612. he argues that the evidence in court should be given more credibility that the statement recorded by the investigating officer and in support of that he relies on the case of raghunath sahu v. the state, reported in vol. 32 (1990) ojd 75 (criminal). learned counsel for the petitioner also refers to and relies on the decision of k. chinnaswamy reddy v. state of andhra pradesh and anr., air 1962 sc 1788, to highlight the duty of the revisional court.7. the state of orissa has not been impleaded as a party to the proceeding and the opposite party raises objection to that. hence, learned standing counsel was requested to go through the record and to address this court. mr. a.k. mishra, learned standing counsel, sincerely places the facts and evidence on record and contends that the finding recorded in the impugned judgment that there is contradiction in the evidence of pw 2 regarding demand and torture on account of non-payment is wrong inasmuch as pw 2 had made necessary statement and that is available in his statement recorded under section 161, cr.p.c.8. learned counsel for the accused /opposite party advances argument not only supporting the impugned finding but also citing a good number of decisions in that respect in support of his argument. a catalogueing of those decisions is not necessary in view of the finding recorded hereinafter.9. a case is decided on the basis of the fact which comes in the shape of evidence from the stage of investigation till the stage of trial and solely on the basis of provision of law. if law is the backbone of a case, the fact and the evidence and the linked circumstances are its flesh, blood and other senses running the life force. neither of the two in exclusion of the other can constitute a complete body.in the present case, as being highlighted by learned counsel for the petitioner, two out of three ingredients to constitute the offence under section 304b, ipc is the undisputed fact established on record. those two ingredients are (1) death of the deceased occurred otherwise than under normal circumstances, and (ii) she died within seven years of her marriage. so far as the third ingredient that soon before her death she was subjected to cruelty or harassment by her husband and his relatives for or in connection with demand of dowry, according to learned counsel for the petitioner, was proved on record by tendering requisite evidence during the trial. accordingly relying on the above citation he argues to set aside the order of acquittal.10. it may be in one sentence that the decisions relied upon by the petitioner can hardly be made applicable to the facts and circumstances of the present case because of the distinguishing facts involved. on perusal of the evidence which was adduced during the trial and the statements of the said witnesses which had been recorded under section 161, cr.p.c. it appears that allegation of demand of dowry or torture on that account was not stated in the statement of pws 2, 3 and 5. in that respect, learned standing counsel invited attention of this court to the statement under section 161, cr.p.c. of pw 3 and states that in his statement pw 3 had categorically stated about torture on account of non-payment of dowry. the said statement is hard to be rejected inasmuch as pw 3 has not stated anything having any knowledge about any ill-treatment or torture on the deceased. on the other hand he made a statement that he heard such a complaint. such statement suffers the stigma of hearsay evidence and in the absence of corroboration that statement cannot be accepted. in that respect, the evidence of pw 2 runs consistent to evidence of pw 3 regarding ill-treatment and cruelty on the deceased for non-payment of balance dowry money but that evidence is also inconsistent with her statement recorded under section 161, cr.p.c. while not disputing existence of such contradiction on material particulars i.e. regarding ill-treating the deceased. mr. d. nayak, also argues that incorrect recording of statements by the investigating officer cannot be 'the be all and end all' of the matter and therefore absence of such statements be ignored and substantive evidence tendered during trial be accepted.11. the stand of the defence was clear from the commencement of recording of prosecution evidence that they were banking upon, absence of allegation in the statement under section 161, cr.p.c. regarding ill-treatment and cruelty on the deceased on account of non-payment of any dowry amount. at least it became clear to the prosecution from the stage when pw 2 was cross-examined. a set of such statement (recorded under section 161, cr.p.c.) was available to the learned prosecution before examining the prosecution witnesses. at no stage of the trial either the witnesses (pws 2, 3 and 5) or the learned prosecutor ever stated or proved that their statement was not correctly recorded by the investigating officer with mala fide reasons or otherwise. when the investigating officer was examined as pw no. 8 at that stage also no question was put to him by the prosecution attributing the allegation of incorrect recording of such statements or recording the same wrongly with a purpose. under such circumstances, the argument of the petitioner to ignore the contradictions is not entertainable. it may be noted here that there is complete absence of allegation of a biased investigation by the investigating officer with a view to favour the accused persons or not to favour the informant. the statements recorded under section 161, cr.p.c, which was confronted to the witnesses in course of trial relating to the contradiction on the vital ingredients of the offence regarding absence of allegation of ill-treatment or cruelty to the deceased on account of non-payment of dowry amount cannot be ignored from consideration because that is a glaring contradiction.12. it appears that pw no. 6, whose evidence on record does not support the theory of ill-treatment or cruelty on the deceased by her husband or in-laws is a piece of evidence which was tendered by the prosecution notwithstanding the evidence of pws 2, 3 and 5 regarding the ill-treatment and cruelty.13. in their entire evidence, pws 2, 3 and 5 did not state of any direct knowledge of the nature of ill-treatment and the manner of ill-treatment or torture. they also did not state what were those occasions vide days or dates when the deceased was ill-treated by her husband or the in-laws. each of them have made omnibus statement in course of their examination-in-chief that the deceased was subjected to ill-treatment and cruelty for non-payment of the balance amount of rs. 5,000/- as promised to be paid as dowry. the aforesaid evidence of pws 2, 3 and 5 when stands in that manner, the evidence of pw no. 6 who is an adjacent neighbour and a lady stands in a better footing inasmuch as there is no allegation against her that she is a gained-over witness. prosecution has not confronted to her any statement given by her in her statement under section 161, cr.p.c. to show that she turned hostile at the stage of recording of evidence. learned prosecutor even did not allege that she was hostile to the prosecution. in other words, her evidence in examination-in-chief that there was no ill-treatment or cruelty was mutely accepted by the prosecution as a part of its case. if that be so, is it permissible for the prosecution or even for the informant, to advance a counter argument now without impeaching credibility of pw no. 6. the trial court, therefore, was right in its approach in making a systematic appreciation of all the evidence in a proper manner to reject the evidence of pws 2, 3 and 5 regarding the demand of dowry or ill-treatment, on the deceased by the accused persons as a piece of subsequent developed version at the time of trial and at the same time he found no fault with the accused persons in view of the evidence of pw no. 6. the aforesaid view of the trial court being neither unreasonable nor illegal or perverse, this court while exercising the revisional jurisdiction cannot reject that reasoning to upset the order of acquittal.for the reasons stated above, this court does not find any merit in the revision application to interfere with the impugned order of acquittal. hence the criminal revision stands dismissed.

Judgment:
ORDER

P.K. Tripathy, J.

Heard.

1. The informant in S.T. Case No. 39/119 of 1995 has preferred this revision challenging the order of acquittal dated 26th March, 1996 of the Court of Assistant Sessions Judge-cum-Chief Judicial Magistrate, Balasore where the present opposite parties were the accused persons.

2. The facts stated in the impugned judgment and during the course of argument in short is that Tilatama Padhi (hereinafter referred to as 'the deceased') married opposite party No. 1 in the month of Baisakha 1994. He died due to poison on 13.1.1995. Informant PW 2 is the paternal grand mother of the deceased being aunt (father's brother's wife) of her father, namely Chintamani Mohapatra (PW 3). Two reports were lodged before the Police, one on 13.1.1995 and the other on '21.3.1995 by PW 2 relating to the death of deceased. After completion of routine investigation, charge-sheet for the offence under Sections 498A/304B/34, IPC was submitted against the opposite party members who faced the trial. Allegations of the prosecution regarding dowry torture resulting dc/ry death of the deceased, is the crux of the allegations wherein the stand of the opposite parties was that of complete innocence.

3. Prosecution examined eight witnesses at the time of trial. As noted above, PW 3 is her father and PW 2 is the paternal grand-mother. PW 5 is a cousin and PW 1 was the scribe of the FIR dated 13.1.1995, PW 6, is a lady neighbour residing adjoining to the house of the opposite party, members and PW 4 is the Medical Officer who conducted autopsy, whereas PW 8 is one of the Investigating Officers.

4. The substance of the evidence of PWs 2, 3 and 5 is that on account of nonpayment of Rs. 5,000/- out of Rs. 8,000/- of dowry amount settled at the time of marriage, there was some dissension with torture to the deceased and, ultimately, as a result of the refusal of (he opposite members to allow the deceased to go to her mother's house on the festive occasion that resulted as the immediate outcome in her death due to poison. Evidence of PW 6 the neighbour of the opposite parties is that there was no dispute between the deceased on the one side, her husband and the in-laws on the other and there was no torture on her at all. From the evidence of PW 4 it reveals about the death due to poison without specifically mentioning if it was homicidal or suicidal. The evidence of PW 8 is relevant so far as the matter relating to confronting the contradictions in the evidence of PWs 2, 3 and 5.

5. Learned Assistant Sessions Judge on assessment of evidence or record, recorded the following findings :

(i) The story as advanced in the course of trial regarding demand of dowry and torture to the deceased on account thereof is an afterthought development at the stage of trial inasmuch as no such allegation was levelled against the opposite party members either in the FIR or in the statement of said FWs recorded under Section 161, Cr.P.C.

(ii) PW 6 the neighbour of the deceased and accused persons has unshakingly deposed in Court about no torture on the deceased by her husband or in-laws. In view of the aforesaid glaring evidence, the evidence of PWs 2 and 3 was not credible.

The above were the principal reason to grant order of acquittal in favour of the opposite parties which is impugned in this revision.

6. Learned Counsel for the petitioner has made a strenuous effort to convince this Court that the approach of the Trial Court is not only illegal but also in utter failure to discharge the onerous duty of punishing the wrong-doer. In that context, he argues that as per the ingredients of provisions under Sections 498A/304B/34, IPC when the death of the deceased occurred not under normal circumstances and it occurred within a period of seven years of her marriage, learned Assistant Sessions Judge should have properly read the evidence on record relating to the factum of cruelty and harassment to which she was subjected and should have held that the offence under Section 304B, IPC is well made out. In that connection, he places reliance on the case of Upendra Singh and 3 Ors. v. The State, 1973 C.L.R. 612. He argues that the evidence in Court should be given more credibility that the statement recorded by the Investigating Officer and in support of that he relies on the case of Raghunath Sahu V. The State, reported in Vol. 32 (1990) OJD 75 (Criminal). Learned Counsel for the petitioner also refers to and relies on the decision of K. Chinnaswamy Reddy v. State of Andhra Pradesh and Anr., AIR 1962 SC 1788, to highlight the duty of the revisional Court.

7. The State of Orissa has not been impleaded as a party to the proceeding and the opposite party raises objection to that. Hence, learned Standing Counsel was requested to go through the record and to address this Court. Mr. A.K. Mishra, learned Standing Counsel, sincerely places the facts and evidence on record and contends that the finding recorded in the impugned judgment that there is contradiction in the evidence of PW 2 regarding demand and torture on account of non-payment is wrong inasmuch as PW 2 had made necessary statement and that is available in his statement recorded under Section 161, Cr.P.C.

8. Learned Counsel for the accused /opposite party advances argument not only supporting the impugned finding but also citing a good number of decisions in that respect in support of his argument. A catalogueing of those decisions is not necessary in view of the finding recorded hereinafter.

9. A case is decided on the basis of the fact which comes in the shape of evidence from the stage of investigation till the stage of trial and solely on the basis of provision of law. If law is the backbone of a case, the fact and the evidence and the linked circumstances are its flesh, blood and other senses running the life force. Neither of the two in exclusion of the other can constitute a complete body.

In the present case, as being highlighted by learned Counsel for the petitioner, two out of three ingredients to constitute the offence under Section 304B, IPC is the undisputed fact established on record. Those two ingredients are (1) death of the deceased occurred otherwise than under normal circumstances, and (ii) she died within seven years of her marriage. So far as the third ingredient that soon before her death she was subjected to cruelty or harassment by her husband and his relatives for or in connection with demand of dowry, according to learned Counsel for the petitioner, was proved on record by tendering requisite evidence during the trial. Accordingly relying on the above citation he argues to set aside the order of acquittal.

10. It may be in one sentence that the decisions relied upon by the petitioner can hardly be made applicable to the facts and circumstances of the present case because of the distinguishing facts involved. On perusal of the evidence which was adduced during the trial and the statements of the said witnesses which had been recorded under Section 161, Cr.P.C. it appears that allegation of demand of dowry or torture on that account was not stated in the statement of PWs 2, 3 and 5. In that respect, learned Standing Counsel invited attention of this Court to the statement under Section 161, Cr.P.C. of PW 3 and states that in his statement PW 3 had categorically stated about torture on account of non-payment of dowry. The said statement is hard to be rejected inasmuch as PW 3 has not stated anything having any knowledge about any ill-treatment or torture on the deceased. On the other hand he made a statement that he heard such a complaint. Such statement suffers the stigma of hearsay evidence and in the absence of corroboration that statement cannot be accepted. In that respect, the evidence of PW 2 runs consistent to evidence of PW 3 regarding ill-treatment and cruelty on the deceased for non-payment of balance dowry money but that evidence is also inconsistent with her statement recorded under Section 161, Cr.P.C. While not disputing existence of such contradiction on material particulars i.e. regarding ill-treating the deceased. Mr. D. Nayak, also argues that incorrect recording of statements by the Investigating Officer cannot be 'the be all and end all' of the matter and therefore absence of such statements be ignored and substantive evidence tendered during trial be accepted.

11. The stand of the defence was clear from the commencement of recording of prosecution evidence that they were banking upon, absence of allegation in the statement under Section 161, Cr.P.C. regarding ill-treatment and cruelty on the deceased on account of non-payment of any dowry amount. At least it became clear to the prosecution from the stage when PW 2 was cross-examined. A set of such statement (recorded under Section 161, Cr.P.C.) was available to the learned prosecution before examining the prosecution witnesses. At no stage of the trial either the witnesses (PWs 2, 3 and 5) or the learned Prosecutor ever stated or proved that their statement was not correctly recorded by the Investigating Officer with mala fide reasons or otherwise. When the Investigating Officer was examined as PW No. 8 at that stage also no question was put to him by the prosecution attributing the allegation of incorrect recording of such statements or recording the same wrongly with a purpose. Under such circumstances, the Argument of the petitioner to ignore the contradictions is not entertainable. It may be noted here that there is complete absence of allegation of a biased investigation by the Investigating Officer with a view to favour the accused persons or not to favour the informant. The statements recorded under Section 161, Cr.P.C, which was confronted to the witnesses in course of trial relating to the contradiction on the vital ingredients of the offence regarding absence of allegation of ill-treatment or cruelty to the deceased on account of non-payment of dowry amount cannot be ignored from consideration because that is a glaring contradiction.

12. It appears that PW No. 6, whose evidence on record does not support the theory of ill-treatment or cruelty on the deceased by her husband or in-laws is a piece of evidence which was tendered by the prosecution notwithstanding the evidence of PWs 2, 3 and 5 regarding the ill-treatment and cruelty.

13. In their entire evidence, PWs 2, 3 and 5 did not state of any direct knowledge of the nature of ill-treatment and the manner of ill-treatment or torture. They also did not state what were those occasions vide days or dates when the deceased was ill-treated by her husband or the in-laws. Each of them have made omnibus statement in course of their examination-in-chief that the deceased was subjected to ill-treatment and cruelty for non-payment of the balance amount of Rs. 5,000/- as promised to be paid as dowry. The aforesaid evidence of PWs 2, 3 and 5 when stands in that manner, the evidence of PW No. 6 who is an adjacent neighbour and a lady stands in a better footing inasmuch as there is no allegation against her that she is a gained-over witness. Prosecution has not confronted to Her any statement given by her in her statement under Section 161, Cr.P.C. to show that she turned hostile at the stage of recording of evidence. Learned Prosecutor even did not allege that she was hostile to the prosecution. In other words, her evidence in examination-in-chief that there was no ill-treatment or cruelty was mutely accepted by the prosecution as a part of its case. If that be so, is it permissible for the prosecution or even for the informant, to advance a counter argument now without impeaching credibility of PW No. 6. The Trial Court, therefore, was right in its approach in making a systematic appreciation of all the evidence in a proper manner to reject the evidence of PWs 2, 3 and 5 regarding the demand of dowry or ill-treatment, on the deceased by the accused persons as a piece of subsequent developed version at the time of trial and at the same time he found no fault with the accused persons in view of the evidence of PW No. 6. The aforesaid view of the Trial Court being neither unreasonable nor illegal or perverse, this Court while exercising the revisional jurisdiction cannot reject that reasoning to upset the order of acquittal.

For the reasons stated above, this Court does not find any merit in the revision application to interfere with the impugned order of acquittal. Hence the Criminal Revision stands dismissed.