Afr Sabari Dibya And Another vs State Of Odisha
2023 Latest Caselaw 10370 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK


                            CRA No. 161 of 1996

       (An Application under Section 374 of the code of
       Criminal Procedure)
                                    ---------------

AFR    Sabari Dibya and another                .....       Appellants


                             -Versus-

       State of Odisha                            ....   Respondent

       Advocate(s) appeared in this case:-
       _______________________________________________________

         For Appellant       :       Mr. A. Pradhan, Advocate.

          For Respondent     :     Mr. S.K. Mishra,
                                   Additional Standing Counsel
                                   for the State.
       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                                   JUDGMENT

30th August, 2023

SASHIKANTA MISHRA, J.

The appeal was originally filed by Sabari Dibya and

Braja Kishore Panda (appellant Nos. 1 and 2) respectively.

During pendency of the appeal Sabari Dibya having expired,

the appeal is confined to appellant No.2, Braja Kishore

Panda. Both the appellants had filed this appeal against the

judgment of conviction and sentence passed by learned

Additional Sessions Judge, Khurda in S.T. No. 56/32/377 of

1995/94. The appellant No.2 was convicted for the offence

under Section 304-B of IPC and Section 4 of the D.P. Act and

sentenced to undergo R.I. for 7 years and for one year

respectively with both sentences being directed to run

concurrently.

3. Prosecution case, briefly stated, is that the deceased

Jayanti Panda had married Braja Kishore Panda during

1990. At the time of marriage a sum of Rs. 20,000/- was

demanded by his family members as dowry of which Rs.

6,000/- was paid with promise to pay the balance within a

year, but because of financial stringency it could not be paid.

As a result, Braja Kishore Panda and his mother and sister

subjected the deceased to physical and mental cruelty

continuously forcing her to take shelter in her father's house.

Her family members sent her back to her marital home with

assurance to pay the balance amount. On 22.01.1993, the

elder brother of the deceased had gone to her house and

found the accused persons physically assaulting her and

threatening her of murder unless she brought the balance

amount from her parents. Her elder brother promised to pay

the amount within a week's time but he too was abused. On

23.01.1993, at about 8 P.M. the elder brother of the deceased

received information that the deceased had been admitted to

Banki Government Hospital and when he went there he

found her lying dead. He, therefore, lodged an FIR before the

Khordha Police Station on 24.01.1993, which led to

registration of P.S. Case No. 16 of 1993 under Section 304

B/34 IPC and Section 4 of the D.P. Act followed by

investigation. Upon completion of investigation, charge-sheet

was submitted against the accused persons for the

aforementioned offences.

4. The plea of the accused persons, apart from denial was

that the case was foisted against them falsely as the gold

ornaments belonging to the deceased had not been returned

to her family members after her death.

5. To prove its case, prosecution examined 7 witnesses

and exhibited 9 documents. Prosecution also proved two

material objects. Defence examined one witness from its side.

6. The Trial Court framed the following points of

determination:

(i) Did the death of Jayanti, under circumstances other than normal, took place within 7 years of her marriage with accused No. 2 or beyond that statutory period engrafted under Section 304-B of IPC.?

(ii) Did the accused persons demand dowry as alleged in connection with the marriage between the deceased and accused No.2?

(iii) Did the accused persons torture and harass the deceased to bring the balance dowry money and did it take place soon before her death?

(iv) Did the accused persons abet the commission of suicide by the deceased for whatever reason it may be?

7. The Trial Court first appreciated the evidence on record

to hold that the marriage of the deceased took place with

Braja Kishore Panda in the month of June 1989 and

therefore the death of the deceased having occurred in the

year 1993, is within the statutory period of 7 years. As

regards the other points, the Trial Court held that there is

ample evidence to show that the deceased had been

subjected to cruelty in connection with demand for dowry by

the accused persons soon before her death, which itself was

unnatural. On such findings the accused persons were

convicted and sentenced as stated earlier.

8. Heard Mr. A.Pradhan learned counsel for the appellants

and Mr. S.K.Mishra learned Additional Standing counsel for

the State.

9. Assailing the impugned judgment of conviction, Mr.

Pradhan would argue that there are material contradictions

in the evidence of P.Ws. 1 and 5 and therefore, the Trial

Court committed an error in relying upon their evidence. The

finding that the death of the deceased having occurred within

7 years of marriage was not conclusively proved. Mr. Pradhan

further argues that the material witnesses namely, father of

the deceased and the priest of the marriage were not

examined while the barber of the marriage being examined

did not support the prosecution. It is also submitted that the

prosecution did not lead any evidence as regards the nature

of death of the deceased and therefore, the Trial Court

committed illegality in holding the accused persons guilty

under Section 304-B of IPC.

10. Per contra, Mr. S. K. Mishra learned State counsel

would contend that the order of the Trial Court is well

reasoned and entirely based on evidence on record, which

was found to be cogent, consistent and truthful.

11. In order to appreciate the rival contentions, this Court

deems it proper to independently scan the evidence on record

to see whether the same supports the order of conviction.

12. It is not disputed that the death of the deceased was not

natural. According to the defence, she died by consuming

yellow oleander seeds, which is poisonous in nature, marked

Exhibit-6 as also the evidence of the Autopsy Surgeon.

According to him, the death was due to yellow oleander seeds

poisoning. There is no evidence of any mark of injury on any

part of the dead body. According to a witness examined by

the defence, namely, Bhagabat Panda (D.w.1), the mother-in-

law of the deceased informed that she was vomiting and

therefore, they took her to the hospital, where she admitted

before her and others to have taken yellow oleander seeds

and that she did so because she could not tolerate her

stomach pain. The above evidence of D.W.1 even applying the

test of preponderance of probability does not appear to be

acceptable. This is for the reason that defence never laid the

foundation for this plea while cross-examining the

prosecution witnesses, nor adduced any evidence whatsoever

to show that the deceased was suffering from any kind of

stomach ailment, which accused her great pain. It is trite

that a defence plea not otherwise established by laying

foundation at the appropriate time cannot be accepted. Thus,

if the evidence of D.W.1 is discarded, what emerges is that

the deceased, who had a son aged about 5 years, committed

suicide by consuming yellow oleander seeds. Obviously no

woman having a happy married life with a child would

contemplate such extreme step unless being compelled by

the circumstances. Now whether the circumstances were

constant abuse and/or assault by her husband and in-laws-

in connection with their demand for dowry remains to be

seen by scanning other evidence on record.

13. As it appears, prosecution has heavily relied upon the

evidence of the informant P.W.5 and the elder brother of the

deceased (P.W.1). P.W.1 has stated in detail about the

demand of dowry of Rs. 20,000/- by the accused persons at

the time of marriage and of payment of Rs. 6000/- by them

with promise to pay the balance within a year. He has also

stated about the torture meted out to the deceased by her in-

laws on 22.01.1993 as witnessed by his younger brother,

P.W.5. P.W.1 was cross-examined extensively. Some of his

statements were proved to be contradictions by way of

confronting the same to the I.O. (P.W. 6), but then this Court

observes that the material particulars of his testimony have

remained unchallenged and the contradictions are not so

material as to demolish his version entirely.

Coming to the version of P.W.5, this Court finds that he

also stated in vivid details whatever he had stated in the FIR.

He specifically stated that he had gone to the house of her

sister one day prior to her death and had witnessed the

assault on her by her in-laws. Despite extensive cross-

examination his testimony in this regard remained firm.

Significantly, the deceased died just one day after his visit

which brings the factum of assault etc. squarely within the

expression "soon before her death". The allegation of the

deceased being subjected to cruelty by her in-laws including

the accused Braja Kishore Panda in connection with demand

for dowry appears to be well established. The contradictions

pointed out by the defence are not so material as to nullify

the evidence. This Court finds the version of P.Ws. 1 and 5

quite probable, cogent, clear and therefore, reliable.

14. As discussed earlier, the deceased had an unnatural

death. From the evidence of P.W.2 and 5 it is clearly

established that she was subjected to cruelty by her husband

and in-laws for dowery. It, therefore, does not take much to

presume that she took the extreme step of committing

suicide because of the constant cruelty meted out to her for

dowery, which was compounded because of her parent's

inability to meet the demand.

15. Mr Pradhan learned counsel for the appellant has

forcefully argued that it was incumbent upon the prosecution

to prove that the death had occurred within 7 years of

marriage and in this, the prosecution has completely failed to

do so. Mr. Pradhan has referred to the evidence on record to

argue that the Doctor estimated the age of the deceased as

34 years, which means the marriage took place in January

1993. So, 7 years prior to her death would be the year 1985.

Mr. s.K.Mishra, on the other hand, contends that the Doctor

has not estimated the age of the deceased but mentioned the

same in the post-mortem report on his own and hence, it

cannot be treated as conclusive more so as the defence did

not cross-examine him on this point.

16. Reading of the impugned judgment and considering the

version of P.W.1, P.W.5, D.W.1 and the version of the

accused persons during their examination under Section 313

of Cr.P.C. it can be held that the marriage took place in June

1989. Accused Braja Kishore Panda, in his examination

under Section 313 of Cr.P.C. stated that he had married in

the year 1985 (wrongly recorded by the Court as the 1995 in

Odia). According to D.W.1, who was examined in April 1996,

the deceased has a son, who was aged about 8 years at the

time of recording of his testimony before this Court. This

means the child was aged about 5 years at the time of the

death of the deceased but then no reliance can be placed on

the version of D.W.1 in this regard because there is no other

evidence supporting her version. Another important aspect

taken into consideration by the Court below is the absence of

the name of the deceased in the voter list published in the

year 1988 of her matrimonial village, which suggests that she

had not been married by then. On comparison of the

evidence of P.W.1 and D.W.1, the Court below came to the

finding that the marriage had taken place in the year 1989.

This Court, after going through the evidence on record finds

nothing wrong in such reasoning so as to interfere therewith.

17. Mr. Pradhan tried to take mileage from the fact that the

barber officiating in the marriage did not support the

prosecution case. But then as rightly held by the Court

below, on the face of such overwhelming evidence being on

record proving the cruelty meted out by the in-laws of the

deceased, the same cannot operate to demolish the

prosecution case in the least. Mr. Pradhan has argued that

the inherent improbability of the prosecution case can be

further seen from the fact that there are no bodily injuries

found on the deceased by the Autopsy Surgeon. Therefore,

the version of P.W.5 that she was assaulted by the accused

and his mother and sister on the day before her death must

be treated as false. This Court is unable to agree with such

contention for the reason that assault on a person may or

may not result in detectable injuries.

18. As regards non-examination of the father of the

deceased and the priest of the marriage, this Court is of the

considered view that the same would not affect the

prosecution case in view of the evidence of P.Ws.1 and 5

otherwise establishing the guilt of the accused.

19. Thus, from a conspectus of the analysis and discussion

made hereinbefore, this Court finds that the Trial Court

rightly appreciated the evidence on record to hold that the

charges against the accused persons were fully established.

This Court therefore, finds no reason to interfere with the

impugned order of conviction and sentence.

20. In the result, the appeal is found to be devoid of merit

and is therefore, dismissed. The accused, who is on bail, be

taken to custody forthwith and committed to jail for serving

the remaining part of the sentence.

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 30th August, 2023/ Deepak