Orissa High Court
Banchha Naik And Others vs State Of Orissa on 8 January, 2021
HIGH COURT OF ORISSA; CUTTACK
CRA NO.242 0F 1998
From the judgment and order of conviction dated 20.8.1998
passed by the learned Addl. District and Sessions Judge,
Nayagarh in S.T. Case No.55/286 of 1997/94.
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Banchha Naik and others ... Appellants
Versus
State of Orissa ... Respondent
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For Appellants : M/s. Pravat Kumar Nayak
S.K.Lenka, P.R.Behera,
A.Nayak & A.K.Jena
For Respondent : Addl. Government Advocate.
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P R E S E N T:
SHRI S.K.MISHRA
AND
MISS SAVITRI RATHO
Date of Judgment: 8th January, 2021
S.K.Mishra,J. In this appeal, the appellants have challenged the
judgment and order of conviction dated 20.8.1998 for the
offence under Sections 498-A/328/302/201/34 of the
Indian Penal Code (hereinafter referred to as the "Penal
Code" for brevity) read with Section 4 of the Dowry
Prohibition Act, hereinafter referred as the "Act", passed
by the learned Addl. District and Sessions Judge, Nayagarh
in S.T. Case No.55/286 of 1997/94. The appellants have
been convicted for the offence under Sections 498-
A/328/302/201/34 of the Penal Code read with Section 4 of
the Act and sentenced to undergo imprisonment for life for
the offence under Sections 302 of the Penal Code, one year
R.I. for the offence under Section 201 of the Penal Code,
R.I. for two years with fine of Rs.1000/-(rupees one
thousand) for the offence under Section 328 of the Penal
Code in default to undergo R.I. for three months, R.I. for
one year with fine of Rs.500/- for the offence under
Section 498-A of the Penal Code in default to undergo R.I.
for one month, R.I. for six months with fine of Rs.500/- in
default to undergo S.I. for fifteen days.
2. The case of the prosecution can be stated briefly
as follows:
Bina Naik was given in marriage to deceased
Gangadhara Naik about four years prior to the occurrence.
At the time of marriage, all possible dowry including cash,
gold and silver ornaments, utensils, furnitures etc. were
given to the appellants by the parents of Bina. Since
Gandhara Naik was an unemployed youth, the prosecution
alleges that, the appellants were demanding a further
dowry of Rs.10,000/- from her for investment by
Gangadhara to carry out a business. Bina could not fulfil
the demand because of the poor condition of her father. It
is further alleged by the informant that the appellants
tortured her, both physically and mentally, during her stay
in the matrimonial house.
3. On 22.12.1993 the appellants prepared Arisha
and Kakara on the eve of Sudasha Brata and Laxmi Puja to
be performed on the next day. Bina was not taking part in
preparation of the pithas. That night Satybhama @ Bhama
Dei, late mother-in-law of the informant, offered two
Kakaras to the deceased. He consumed one and half of the
kakara pitha and gave half of it to the informant. After
some time, both of them felt head reeling. The deceased
died. The informant became unconscious and was shifted
to Daspalla Hospital for treatment and regained sense on
28.12.1993 at Nayagarh Hospital. In the mean time, the
dead body of her husband was cremated by the accused
persons in the early morning of 23.12.1993 to cause
disappearance of the evidence of poisoning. After
regaining sense, the informant lodged an F.I.R. at Daspalla
Police Station which was scribed by Alekha Biswala to her
instructions. The F.I.R. was presented by her father before
the Police Officer. Police registered the F.I.R. on 2.1.1994.
4. During course of investigation, the investigating
Officer took all necessary steps for investigation, including
sending the injury requisition to Daspalla Hospital for
examination of the informant, seizure of the ashes, charred
bone of the deceased Gangadhara from the burial ground
while enquiring U.D. Case No.7/1993, seizure of the
prescription and opinion of the Doctor treating the victim
lady, examination of the witnesses, arrest of the accused
persons and forwarded them to the Court, sent the seized
ashes and charred bone to the S.F.S.L., Rasulgarh for
examination through J.M.F.C., Daspalla and after
completion of investigation filed the charge sheet against
six accused persons for the offence under Sections 498-
A/328/302/201/34 of the Penal Code and Section 4 of the
Act.
5. Learned Addl. District and Sessions Judge on
25.10.1994 having heard the application under section 227
of the Code of Criminal Procedure, 1973 (hereinafter
referred to as the "Code" for brevity) discharged the
accused Kumuda Naik who was the daughter-in-law of
Banchanidhi Naik. During pendency of the case,
Satyabhama @ Bhama Dei died and as per order of the
learned trial Judge the criminal proceeding abated as far as
she is concerned. During pendency of the appeal, appellant
no.1-Banchanidhi died and the appeal abated as far as
Banchanidhi is concerned. So the appeal survives as far as
appellant no.2-Purna Chandra Naik, appellant no.3-Sridhar
Naik and appellant no.4-Mamata Naik are concerned. They
took the plea of complete denial of the prosecution case.
6. To prove its case, the prosecution examined eight
witnesses. P.W.1-Bina Naik is the informant in this case.
She is the widow of the deceased-Gangadhar. P.W.2
Alekha Biswala happens to be the uncle of P.W.1. He has
scribed the F.I.R. on instructions of Bina. P.W.3-Matia
Biswala happens to be father of the informant Bina. He has
stated about the demand of dowry and torture to Bina.
P.W.6 Nimain Charan Biswala is the uncle of the
informant Bina. He also speaks about the dowry demand
and torture. P.W.4-Jeykrishna Naik is a seizure witness. In
his presence the I.O. seized the bed head ticket,
prescription etc. from the Nayagarh Hospital under Ext.2.
P.W.7-Hina Naik, is the Grama Rakhi of village Daspalla
who heard about the incident. P.W.8-Dr. Umesh Chandra
Mishra had treated Bina Naik for general weakness on
23.12.1993 at Government Hospital, Daspalla. The
prosecution also led into evidence three exhibits, the F.I.R.,
seizure list and injury report with respect to Bina Naik
prepared by P.W.8. No material object has been led into
evidence by the prosecution.
Neither any witness has been examined nor any
document has been exhibited on behalf of the defence.
7. Learned Addl. District and Sessions Judge relying upon
the statement of witnesses described above came to the
conclusion that the prosecution has proved its case beyond
all reasonable doubts for the offence under Sections 498-
A/328/302/201/34 of the Penal Code read with Section 4 of
the Act and proceeded to convict them and consequent
upon their conviction they were sentenced by the learned
Addl. District and Sessions Judge as described in the first
paragraph of this judgment.
8. This is a alleged case of murder by poisoning. In the oft
quoted judgment of Sharad Birdhi Chand Sarda Vrs
State of Maharashtra; 1984 (4) SCC 116, the Hon'ble
Supreme Court has held that in order to bring home a case
of poisoning the prosecution must prove the following:-
(i) That the death of the deceased was due to
poisoning.
(ii) That the accused has the poison, which cause the
death of the deceased, in his or her possession
(iii) He had the opportunity of administering poison
to the deceased.
(iv) That the poison that was in the possession of the
accused caused the death of the deceased.
9. In this case, we have carefully heard the learned counsel
appearing for the parties and it is borne out from the record
that no material is forthcoming as far as the poisoning of
the deceased is concerned. In fact the ashes and bones
seized by the I.O. were subjected to chemical examination
and on chemical examination; it was found that there was
no trace of any poison on it. The prosecution has also not
led any evidence to establish that the accused Satyabhama
@ Bhama Dei, against whom a specific allegation is made
that she administered poison to the deceased and the
informant-P.W.1, that she was in possession of any kind of
poison or she procured poison from the market etc. So the
case of poisoning the deceased has not been substantiated
by the prosecution in this case and the learned Addl.
District and Sessions Judge came to an erroneous
conclusion that the deceased died of poisoning and the
informant-P.W.1 was poisoned by the deceased accused
Satyabhama Naik @ Bhama.
10. The other important salient feature in the case is that
no post mortem examination was conducted. This is
obviously because the dead body of the deceased was
cremated, allegedly by the accused persons. However, the
remnants of the dead body of the deceased were seized by
the I.O. and put to chemical and serological examination,
but no poison was found. So there is no evidence on
record that the death of the deceased was homicidal in
nature.
11. The Investigating Officer, in this case, has not been
examined. The learned Addl. District and Sessions Judge
on 22.7.1998 recorded that the Doctor and the I.O. are
absent in spite of summons and notice under Section 350
of the Code. Therefore, the learned Addl. District and
Sessions Judge dispensed with their evidence and closed
the prosecution case. There are many contradictions in the
evidence of the prosecution. But on account of non-
examination of the Investigating Officer, the defence was
denied of an opportunity to cross-examine the I.O. to prove
the contradictions. Moreover, in view of non-examination
of the I.O., the prosecution has not proved the steps taken
by the I.O. and seizure of vital documents like medical
papers from the Nayagarh Hospital and the steps the I.O.
has taken to determine whether Satyabhama @ Bhama has
procured poison from the market etc.
12. It is also evident from the statement of the doctor-
P.W.8 that the informant Bina Naik was treated in the
Government Hospital, Daspalla on 23.12.1993 as an indoor
patient. She was complaining of general weakness but with
treatment she became normal and was discharged on the
same day at 2.45 P.M. No further materials are coming
forth in this case regarding the poisoning of P.W.1. Though
the prosecution alleges that she was shifted from Daspalla
Hospital, as her condition became serious, to Nayagarh
Hospital, the evidence of P.W.8 and the contents of Ext.3,
the injury requisition, belies the same. Ext.3 shows that
P.W.8 treated her for general weakness and discharged her
at 2.45 P.M. on 23.2.1993. She was not referred to the
Nayagarh Hospital. No document is forthcoming in this
case, which has been seized by the I.O. from the Nayagarh
Hospital, to show that she was admitted in Nayagarh
Hospital and gained her sense on 27.12.1993 in the Sub-
Divisional Hospital, Nayagarh. Though the prosecution has
relied upon Ext.2 which shows that the some documents,
like bed head ticket, prescription, etc. were seized by the
I.O. from the Sub-Divisional Hospital, Nayagarh, those
documents have not been exhibited. So there is absolutely
no evidence regarding poisoning of P.W.1. So the offence
under Section 328 of the Penal Code is not established in
this case and the learned Addl. Sessions Judge erred in
coming to the conclusion that the prosecution has
established its case under Section 328 of the Penal Code.
13. As far as offence under Section 201 of the Penal Code
is concerned regarding causing disappearance of evidence,
by cremating the dead body of the deceased, of murder to
screen themselves from legal punishment, this Court is of
the opinion that as the offences under section 302 of the
Penal Code has not been established in this case, there
cannot be any conviction under Section 201 of the Penal
Code and the conviction under Section 201 of the Penal
Code by the learned Addl. District and Sessions Judge is,
therefore, not sustainable.
14. That the rest of the offences are offence under Section
498-A/34 of the Penal Code and Section 4 of the Act, in
course of argument, it was not disputed that although the
prosecution witnesses including Bina Naik have stated
about the alleged torture by the accused persons on Bina
and demand for dowry, but no specific allegation has been
made. Bina, in her statement, has stated that the accused
persons were demanding Rs.10,000/- as additional dowry
and they were torturing her, no specific allegation has
been made against any of the appellants. No specific date
has been mentioned by her.
15. Mrs. S. Pattnaik, learned Addl. Government Advocate,
submits that as it is a continuing offence, she was not
required to make any specific allegation against any of the
appellants giving the day, date, time and place of such
torture and demand of dowry.
16. It is true that whenever there is a continuing offence
and a girl is tortured for a long period, it may not be
possible on her part to exactly pin point the exact person
who made the dowry demand or tortured her or the time
and place of occurrence. But at the same time, it is the
duty of the prosecution to put forth a case that actually it
was a continuous demand, a demand and torture so
continuous, it was not humanly possible on the part of the
witnesses for the prosecution to give specific instances of
torture and dowry demand including specific allegation
against the accused persons. When there is no specific
evidence regarding demand of dowry and torture for dowry
or cruelty to the wife, then it can only be held that the
prosecution case has not been established beyond all
reasonable doubt.
17. In the ultimate analysis, this Court is of the opinion
that there is no sufficient evidence to come to the
conclusion that the prosecution has established its case
beyond all reasonable doubt. The prosecution has failed to
establish the very case it alleges. Therefore, the findings
recorded by the learned Addl. District and Sessions Judge,
consequent conviction of the appellant under Section 498-
A/302/201/34 of the I.P.C. read with Section 4 of the Act
and the consequent sentences awarded to them are not
sustainable and are set aside herewith. The surviving
appellant nos. 2, 3 and 4 are hereby acquitted of the
aforesaid offences. It is borne out from the record that the
appellants are on bail. They be set at liberty forthwith by
cancelling the bail bonds executed by them.
18. T.C.R. be returned to the lower court immediately.
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S.K.Mishra, J
Savitri Ratho,J.
I agree.
.......................
Savitri Ratho, J
Orissa High Court, Cuttack
Dated 8th January, 2021/A.K.Behera.
