Premananda Dip And Others vs State Of Odisha
2023 Latest Caselaw 2174 Ori

      IN THE HIGH COURT OF ORISSA AT CUTTACK

                      CRA NO.316 OF 1995

(From the judgment and order dated 22nd December, 1995
passed by learned Asst. Sessions Judge, Patnagarh in S.C.
No.90/8 of 1995.

     Premananda Dip and others
                            ...                            Appellants

                                  -versus-

      State of Odisha                           ...        Respondent



  Advocates appeared in the case through hybrid mode:

         For Appellants : Mr.Amitav Tripathy,
                          Advocate

                                              -versus-

        For Respondent: Mr.S.K.Mishra,
                        Addl. Standing Counsel

  ---------------------------------------------------------------------------
         CORAM:

                        JUSTICE SASHIKANTA MISHRA

                                      JUDGMENT

16.03.2023.

Sashikanta Mishra,J. The Appellant No.2 (Kunja Dip), it is

submitted, has died in the mean time. The appeal

against him stands abated.

2. The Appellants have challenged the judgment

passed by learned Asst. Sessions Judge, Patnagarh in

S. C. No.90/8 of 1995 whereby they were convicted for

the offence under Sections 498-A/306/34 I.P.C. and

sentenced to imprisonment for three years under

Section 498-A and 8 years under Section 306 of I.P.C.

with fine of Rs.1,000/- on each count, in default, to

undergo further R.I. for six months and one month

respectively. Both the sentences are directed to run

concurrently.

3. The Prosecution case, in brief, is that on 28th June,

1994 Premanand Dip (Appellant No.1) lodged a report

before the Officer-in-charge of Belpada P.S. to the

effect that the wife of his younger brother had

committed suicide by hanging on the previous night

i.e. on 27th June, 1994. On the basis of this report

U.D. Case No.10/1994 was registered. Again on 7th

February, 1995 one Shankar Majhi lodged F.I.R.to the

effect that his daughter, who had been given in

marriage to Baishnaba Dip (Appellant No.3) was

subjected to cruelty frequently for which she used to

come and stay in her parental home. On 27th June,

1994 he received information that his daughter had

died and accordingly, when he went to the village of

the accused persons he found that the dead body had

been cremated. Basing on such report Belpada P.S.

Case No.7/1995 was registered under Section 498-

A/34 of I.P.C. followed by investigation. Upon

completion of investigation charge sheet was submitted

against the accused persons also under Section 498-

A/34 of I.P.C. However, the trial Court considering the

materials on record framed charge under Section-498-

A/306/34 of I.P.C.

4. The accused persons, apart from denying any

involvement have taken the plea that the deceased was

depressed because of absence of any child and

therefore, had committed suicide.

5. To prove its case the prosecution examined 8

witnesses of whom, P.W.1 is the informant, P.Ws.2,3,6,

and 7 are villagers, P.W.4 is the autopsy surgeon and

P.W.8 is the I.O. Prosecution also proved five

documents. The defence examined two witnesses from

its side.

6. After considering the evidence on record, the trial

Court held that the offences under Section 498-A/306

I.P.C. were clearly established and therefore, convicted

the Appellants and sentenced them as already stated

herein before.

7. Heard Mr. A. Tripathy, learned counsel appearing

for the Appellants and Mr. S.K.Mishra, learned Addl.

Standing Counsel for the State.

8. Assailing the impugned judgment of conviction, Mr.

Tripathy has urged that there being no evidence

whatsoever of the fact that the death of the deceased

had occurred within 7 years of her marriage, the

presumption drawn by the Trial Court under Section

113-A of the Evidence Act is entirely wrong. He further

argues that there is inordinate delay in lodging of the

F.I.R. inasmuch as the U.D .Case having been

registered on 28th June, 1994, there is no explanation

as to why the F.I.R. was lodged almost 8 months

thereafter. Mr. Tripathy further contends that reliance

placed by the Trial Court on the version of P.Ws.1,2

and 3 is entirely unacceptable in view of the fact that

their statements relating to cruelty have been taken in

contradiction through the I.O.

9. Mr. S.K.Mishra, on the other hand, has supported

the findings of the Court below by arguing that on the

face of clear evidence regarding cruelty being meted by

the accused persons to the deceased, the offence under

Section 306 of I.P.C. is otherwise made out even if the

presumption under Section 113-A of Evidence Act is

not drawn. He further argues that the discrepancies in

evidence pointed out on behalf of the Appellants are

not such as can be treated as fatal to the prosecution

case. Since the evidence on the whole suggests that the

accused persons had by their conduct instigated the

deceased to end her life, the impugned judgment must

be held to be correct without warranting any

interference whatsoever.

10. This Court finds that Appellant No.1 being the

elder brother of accused Baishnaba Dip (Appellant

No.3 and husband of the deceased) reported the death

of the deceased at the P.S. at the earliest possible

opportunity i.e. on 28th June, 1994. P.W.1, the father

of the deceased lodged F.I.R. on 7th February, 1995 i.e

almost after a gap of 8 months. In his evidence, he has

stated that since neither the Police nor the accused

persons had sent any intimation to him regarding the

death of his daughter and he suspected foul play and

intimated this to the Women's Organization at

Bhubaneswar. He does not say which Women's

Organization he had approached in this regard.

Secondly, no one was examined from the said Women's

Organization to corroborate the statement. That apart,

it is otherwise borne out from the evidence that the

father of the deceased came to know about the death of

his daughter on the next day and had also visited her

matrimonial house, but found that she had been

cremated. If such is the case, then it does not stand to

reason as to why he would lodge an F.I.R. 8 months

thereafter. There is thus, some force in the submission

of Mr. Tripathy that inordinate delay in lodging the

F.I.R. has gone unexplained.

11. As regards the allegation of subjecting the

deceased to cruelty, it is in the evidence of P.W.1 that

in the first two years after her marriage, the deceased

lived peacefully in her in-laws house and thereafter she

was tortured by the accused persons. She was not

even given food and clothes for which she used to come

back to their house and showed reluctance to go back

to her in-laws house. The same is also in the evidence

of P.Ws.2 and 3.

12. However, in course of cross-examination and being

confronted by the defence, the I.O. admitted that

P.Ws.1,2 and 3 had not stated such facts before him

during investigation. Thus, no reliance can be placed

on the version of such witnesses relating to the alleged

cruelty meted to the deceased. That apart, it has not

been clarified as to for what reason the accused

persons were torturing her. In fact, according to P.W.1

the deceased used to tell him about the torture meted

out to her by the accused persons, but he stops at

that and does not clarify as to what exactly the

deceased had told her. This Court is otherwise not very

inclined to consider whether the marriage took place

within 7 years or not because the act of instigation can

be otherwise established to bring home the offence

under Section 306 of I.P.C., which reads as follows;

"306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

13. It is well settled that the most essential ingredient

of the offence is instigation. Unless, it is proved that

the accused had committed such an act which would

fall within the mischief of abetment as defined under

Section 107 I.P.C., it cannot be held that he had

instigated the deceased. The word 'instigate' means a

positive act or conduct on the part of a person to

incite, urge, provoke etc. another person to do

something. In the case at hand, the evidence is

completely silent as to any such conduct of the

accused persons. This Court has already held that the

evidence relating to the so-called torture of the

deceased is not worthy of acceptance. If such evidence

is taken away, then there remains nothing to even

remotely suggest that the accused persons had

instigated the deceased to such extent as would lead

her to commit suicide.

14. In the absence of any evidence in this regard from

the side of the prosecution, the explanation offered by

the defence can also be considered. In this regard, it is

well settled that the principles of preponderance of

probability are to be applied to weigh the evidence

adduced by the defence. In this case, the defence has

examined two witnesses of whom, D.W. 2 categorically

stated that the deceased used to visit their house every

now and then and addressed him as uncle. Whenever

he asked she informed that she is living well in her in-

laws house and also that she is feeling sad for not

being blessed with any children. This is a plausible

explanation having regard to the socio-cultural

background of the parties where absence of child can

result in mental depression of a woman. The trial court

has branded the defence witnesses as liars, but this

Court finds that at least a reasonable explanation has

been offered by the defence through them, which can

explain the commission of suicide by the deceased

more so when the prosecution has not come forward

with acceptable evidence to support its theory. This

Court therefore, finds the judgment of the trial Court

to be unacceptable. On the contrary, it is seen that

there is no evidence worth the name to support the

allegation of cruelty within the meaning of Section

498-A of I.P.C. as also of instigation/abetment required

to establish the offence under Section 306 of I.P.C. The

judgment of conviction therefore, becomes vulnerable.

15. For the foregoing the reasons therefore, this Court

has no hesitation in holding that the impugned

judgment cannot be sustained. Resultantly, the appeal

is allowed. The impugned judgment of conviction and

sentence is hereby set aside. The Appellants be set

liberty if they are not required to be detained in

connection with any other case. Their bail bonds be

discharged.

.................................. (Sashikanta Mishra) Judge

Ashok Kumar Behera