Orissa High Court
(From The Judgment And Order Dated ... vs State Of Odisha on 20 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA NO.84 OF 1995
(From the judgment and order dated 10th February, 1995
passed by learned Sessions Judge, Phulbani in S.T. No.46 of
1994)
Kartika Bhukta and others
... Appellants
-versus-
State of Odisha ... Respondent
Advocates appeared in the case through hybrid mode:
For Appellants : Ms.Anima Dei,
Advocate
-versus-
For Respondent: Mr.S.N.Das,
Addl. Standing Counsel
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
20.03.2023.
Sashikanta Mishra,J. The Appellants in the present appeal questions
the correctness of the judgment of conviction and
sentence passed by learned Sessions Judge, Phulbani
on 10th February, 1995 in S.T. Case No.46/1994
whereby, being convicted for the offence under Section
498-A of I.P.C. they were sentenced to undergo R.I. for
three years and to pay fine of Rs.2,000/- each, in
default to undergo further R.I. for four months.
2. The prosecution case, briefly stated, is as follows;
One Narendra Majhi addressed a letter to the S.P.,
Phulbani on 14th August, 1993 stating therein that his
daughter who was given in marriage to Kartika Bhukta
(Appellant No.1) three years before, was found hanging
from a branch of a tree. It was further alleged that
prior to her death, the deceased was subjected to
cruelty, both physically and mentally by her husband
and in-laws in connection with their demand for
further dowry. It was further stated that because of ill-
treatment, the deceased used to come to her paternal
home at times and thereafter the matter was resolved
amicably by the informant. On the date of occurrence
i.e. 3rd August, 1993, the informant received
information that his daughter died and that she was
hanging from a tree by means of a rope. Since the
branch of the tree was 17 feet above the ground, the
informant suspected foul play and reported the matter
at the Police Station. Since no action was taken the
informant submitted the application to the S.P. On the
direction of S.P., Phulbani, the case was registered as
Boudh P.S. Case No.99(9) of 1993 under Section 498-
A/304-B/34 of I.P.C. read with section 4 of the D.P.
Act followed by investigation. Upon completion of
investigation charge sheet was submitted against
accused persons for the aforementioned offences.
3. The defence took the plea of denial. The plea of the
accused persons, apart from denial was that on the
day of Shrabana Purnima the deceased had gone with
her husband to her paternal house to demand her
share from the property that both of them returned
and thereafter ate their dinner and slept. When the
deceased left home to commit suicide was not within
their knowledge.
4. In order to prove its case, the prosecution examined
9 witnesses and exhibited 10 documents. The defence
also examined 2 witnesses but did not adduce any
documentary evidence. Of the prosecution witnesses,
P.W.1 is the informant, P.Ws.2,3 and 4 are his co-
villagers, P.W.5 is a co-villager of the accused, P.W.6 is
inquest witness, P.W.7 is the scribe of the petition
addressed to the S.P, P.W.8 is the I.O. of the U.D. Case
and P.W.9 is the Autopsy Surgeon and P.W.l0 is the
Investigating Officer.
5. After appreciating the evidence on record, the trial
Court found that there is no evidence to prove the
offence under Section 304-B of I.P.C. However, relying
on the evidence of P.Ws.1,2 and 3, the Trial Court held
that the offence under Section 498-A of I.P.C. is clearly
established. Accordingly, the accused persons were
convicted and sentenced as aforesaid.
6. Heard Ms. Anima Dei, learned counsel for the
Appellants and Mr. S.N.Das, learned Addl. Standing
Counsel for the State.
7. Miss Anima Dei contends that the finding of the
trial Court is entirely against the weight of evidence on
record inasmuch as the statements of P.Ws.1,2 and 3
relied upon by the Trial Court are found to be clear
improvements from their earlier version and therefore,
could not have been taken note of. She further
contends that P.W.5 was though projected as an
important witness, did not support the prosecution
case. On the contrary, the defence evidence is quite
plausible and worthy of belief as it offers a reasonable
explanation for the deceased for committing suicide.
8. Mr. S.N.Das, learned Addl. Standing Counsel,
submits that there being evidence of the deceased
being subjected to cruelty in connection with demand
for dowry, the finding of the trial Court on such score
cannot be faulted with. He further submits that the
defence evidence cannot be taken into consideration at
all.
9. It is apparent that the prosecution has heavily
relied upon the evidence of the informant (P.W.1),
P.W.2, in whose presence the dispute between the
parties was supposedly resolved amicably and P.W.3,
who also was witness to the complaint made by the
deceased regarding her ill-treatment by the accused
persons.
10. A reading of the evidence of P.W.1 shows that he
has admitted to have given certain articles at the time
of marriage which, being old, the accused persons were
taunting the deceased. He has further deposed that
her husband was physically assaulting her and the
other accused persons were also abusing her. As such,
P.W.1 called Bansidhar Panda (P.W.2) before whom the
deceased confronted her husband about the assault
and torture inflicted to her. Bansidhar Panda pacified
the matter and the husband of the deceased took her
to his house. P.W.1 has again stated that in the month
of Baisakh, the Appellant No.1 came with one
Dinabandhu Mallik (P.W.5) of his village and P.W.1
called one Nakula Bisoi (P.W.3) of his village. In their
presence, the deceased is said to have described about
the torture meted out to her in her matrimonial home
by the accused persons and refused to go to their
house.
11. P.W.2 has corroborated the above statements of
P.Ws.1 and 3. In cross-examination it was suggested to
all these witnesses that they had not stated these facts
before the investigating Officer during investigation.
The I.O., being examined as P.W.10 was also
confronted with such facts. He admitted that P.W.1
had not specifically stated to him that Kartika was
physically assaulting her for having not brought new
articles but had said he had heard as such from his
wife. The I.O. further admitted that P.W.1 had not
specifically stated before him that Sabita came to his
house in Falguna and Baisakh after a year of the
marriage and that Sabita confronted Kartika in his
house (P.W.1) about the assault and torture inflicted in
the house of the accused Kartika before Bansidhar
Panda and that he pacified the matter and Kartika
took Sabita to his house. The I.O. also admitted P.W.1
had not stated to him that accused Kartika came with
Dinabandhu of his village. It is seen that the major
portion of the statement of P.W.1 as also of P.W.2 are
found to be improvements over their earlier versions
before the I.O. P.W.5 resiled form his earlier statement
and turned hostile. Thus, there is no acceptable
evidence to show that the accused persons had
subjected the deceased to cruelty for bringing old
articles at the time of marriage. It is common
knowledge that some articles and gifts are usually
given by the family of the bride to the bridegroom and
his family members. Therefore, merely because there
is evidence of certain articles having been given
cannot, ipso facto, lead to the conclusion that they
were given on demand by the accused persons. That
apart, there is no acceptable evidence to show that the
accused persons assaulted the deceased or otherwise
treated her with cruelty by making further demands for
dowry. This Court is therefore, unable to accept the
reasoning of the trial Court which, as stated earlier,
appears to be entirely based on the evidence of
P.Ws.1,2 and 3. The learned State counsel has raised a
question of presumption inasmuch as, if the deceased
was otherwise happy in her matrimonial home then
what could have prompted her to end her life if not,
being mentally upset by the constant torture meted
out to her.
12. This Court has already held that there is no
acceptable or clear-cut evidence to support the
allegation of the accused persons treating the deceased
with cruelty. On the other hand, the defence has
examined two witnesses. D.W.2 stated that on the day
of Shrabana Purnima he found Sabita in the company
of her husband and Dinabandhu Mallik going towards
Nuapalli and to his query, Sabita told him that she is
going to appropriate the share of landed properties
from her father. Again at 4 P.M. on the same day, he
saw Sabita returning crying and to his query Sabita
told him that her father had not given any share of the
landed property to her. In fact, this is the defence plea
that being humiliated for being deprived of her share in
her father's property, the deceased committed suicide.
In the absence of any evidence to back the prosecution
story the defence explanation as above appears to be
plausible. It is trite that the defence evidence has to be
weighed on the principles of pre-ponderance of
probability. To such extent therefore, the defence
evidence can be accepted in this case. It is further
trite that when two views are possible on the same set
of evidence, the one leaning in favour of the accused
has to be accepted.
13. A reading of the impugned judgment reveals that
the trial Court has not considered the matter in the
correct perspective at all, rather appears to have been
swayed away by the inadmissible statements made by
P.Ws.1,2 and 3. For such reason, this Court holds that
the impugned judgment cannot be sustained in the eye
of law.
14. In the result, the appeal is allowed. The
impugned judgment of conviction and sentence is
hereby set aside. The Appellants are acquitted of the
charges. The Appellants being on bail, their bail bonds
be discharged.
..................................
(Sashikanta Mishra)
Judge
Ashok Kumar Behera
