Orissa High Court
State Orissa vs Ganeswar [email protected] Tahia And Others on 9 March, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLLP No.91 of 2008
State Orissa .... Petitioner
Mr. Janmejaya Katikia, AGA
-versus-
Ganeswar [email protected] Tahia and others .... Opposite Parties
Mr. Raghunath Das Mohapatra, Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE R. K. PATTANAIK
ORDER
Order No. 09.03.2022
08. 1. This petition by the State seeks leave to appeal against the
Judgment dated 27th February 2007, passed by the 2nd Additional
Sessions Judge, Cuttack in S.T. Case No.334 of 2005. By the
impugned Judgment, the Trial Court acquitted Opposite Party Nos.
1 to 3 of the Offence under Section 498-A and 302 read with 34 of
the Indian Penal Code (IPC) as well as Section 4 of the Dowry
Prohibition Act (D.P. Act).
2. The case of the prosecution is Raghab Swain (PW-1), the brother
of the deceased Asanti, who happened to be the wife of Opposite
Party No.1 Ganeswar gave a complaint in which he stated that the
marriage of his sister with Opposite Party No.1 was solemnized in
the year 1995. PW-1 is said to have received an anonymous call on
3rd October, 2004 regarding his sister's death at her matrimonial
home. He alleged that since cash and gold chain in the form of
dowry were not given to them, the accused persons i.e., the husband
Ganeswar, his brother Gayadhar (Opposite Party No.2) and
Gayadhar's wife Rohini (Opposite Party No.3) had tortured the
deceased.
3. In the charge sheet submitted against the accused, it was alleged
that the accused persons had killed the deceased by a lathi and
dashing her head against the door in the morning hours of 3rd
October, 2004. Eighteen witnesses were examined on behalf of the
prosecution. The Trial Court found that the deceased had left her
matrimonial home about eight months after the marriage on
allegations of demands of dowry and torture. A criminal case
bearing 1CC Case No.145 of 2000 was initiated against them in the
Court of the S.D.J.M. Khurda. After the S.D.J.M., Khurda sent the
complaint petition to the Bolagarh Police, for registering an FIR,
the Police submitted a charge sheet in G.R. Case No.740 of 2000.
Meanwhile, the deceased initiated Criminal Case No.126 of 2000
claiming maintenance under Section 125 of CrPC. Both cases
ended in a compromise recorded on 16th April, 2004 pursuant to
which the deceased went back to the matrimonial home to live with
her husband.
4. The Trial Court found that the evidence of PW-2, another brother
of the deceased, regarding the deceased having told PW-1 and her
mother when they visited the matrimonial home, of the torture by
the accused persons, was hearsay. Also, the mother of PW-1 was
not examined to corroborate this fact. Also, in the FIR lodged on 3rd
October 2004, this material fact had been omitted. Further, three
other prosecution witnesses i.e., PWs-8, 9 and 10 did not speak of
the deceased being subject to torture after she returned to her
matrimonial home. Consequently, the Trial Court held that the
prosecution had failed to prove the charge under Section 498-A of
IPC against the accused persons. Also, with the earlier case on the
same accusation, having been compromised, the Trial Court was of
the view that under Section 300 CrPC, a second trial for the same
offence under Section 498-A IPC was not legally sustainable.
5. The Trial Court came to the conclusion that the death of Asanti
was homicidal. It noted that the three witnesses PWs-4, 5 and 7
who spoke of having seen the Opposite Party No.1 pressing the
neck of the deceased with a lathi with the Opposite Party No.3
holding her legs and Opposite Party No.2 also holding a lathi had
not made any previous statement to the Investigating Officer (IO).
Their assertion to the contrary during the cross-examination raised
grave doubts on the truthfulness of their testimony. The behaviour
of PWs. 4, 5 and 7 in not trying to prevent the accused persons and
simply returning to their houses was found to be unnatural,
particularly since none of the accused persons are said to have
threatened PWs.4, 5 and 7. As regards, the blood-stained earth, the
lathi and the Lungi that were seized, it was noted by the trial Court
that while human blood was found in them, the grouping the blood
was not confirmed. Importantly, no blood was found in the nail
clippings of Opposite Party No.1. Consequently, it was concluded
that the seizure of the articles themselves not sufficient to prove the
important links in the chain of circumstances.
6. The IO's cross-examination further revealed that the Opposite
Party No.1 had three brothers and each of them was living in
separate houses. Consequently, it was concluded that the Opposite
Parties 2 and 3 were not involved in the death of the deceased. As
far as the Opposite Party No.1 is concerned, merely because she
was found dead in the matrimonial home it could not lead to the
conclusion that he was the author of the crime.
7. In the above background with the links in the chain of
circumstances not being conclusively established, the trial Court
granted the accused on the benefit of doubt.
8. Having heard Mr. Janmejaya Katikia, learned Additional
Government Advocate, the Court is of the view that the conclusion
reached by the trial Court was probable on an appreciation of the
evidence laid before it. Important links in the chain of
circumstances were not able to be conclusively established by the
prosecution by leading credible evidence. The untrustworthiness of
key prosecution witnesses like PWs.4, 5 and 7 indeed raised grave
doubts on the veracity of the version of the prosecution.
9. The Court, therefore, declines to grant leave to the State to appeal
against the impugned order. The petition is accordingly dismissed.
(Dr. S. Muralidhar)
Chief Justice
(R. K. Pattanaik)
Judge
S. Behera
