Orissa High Court
This Is An Appeal Under Section ... vs State Of Odisha on 19 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.06 of 2012
This is an Appeal under Section 374(2) of the Code of Criminal
Procedure, 1973, which has been preferred by the Appellant against the
judgment of conviction and order of sentence passed on dated 30th
November, 2011 in S.T. No.10/127 of 2011-10 by the learned Adhoc
Additional Sessions Judge (F.T.C.), Baripada.
Mihir Kumar Karan .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.P. Mohanty,
Advocate.
For Respondent - Mr.P. K. Mohanty,
Additional Standing Counsel.
Mr. P. K. Parhi,
Advocate (Informant)
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE A.C.BEHERA
Date of Hearing :26.09.2023 :: Date of Judgment : 19.10.2023
A.C. Behera, J. The Appellant by preferring this Appeal has called in
question the judgment of conviction and order of sentence dated 30th
November, 2011 passed by the learned Additional Sessions Judge
(F.T.C.), Baripada, Mayurbhanj arising out of G.R. Case No.16 of 2010
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corresponding to Jharpokharia P.S. Case No.12 of 2010 of the Court of
learned Sub-Judicial Magistrate, Baripada.
The Appellant (accused) has been convicted for commission of
offences U/s 498-A, 302 & 304-B IPC and Section 4 of the D.P. Act and
has been sentenced to undergo R.I. for three years and pay a fine of
Rs.1000/- (rupees one thousand) in default to undergo R.I. for three
months for the offence U/s 498-A of the IPC, undergo imprisonment for
life and to pay a fine of Rs.5000/- in default to undergo R.I. for one year
for the offence U/s 302 of the IPC, undergo R.I. for ten years for the
offence U/s 304-B of the IPC and to undergo R.I. for six months and to
pay a fine of Rs.1000/- (one thousand) in default to undergo R.I. for
three months for the offence U/s 4 of the D.P. Act with a direction for
running of the substantive sentences concurrently.
2. Prosecution case:-
The deceased Bulurani is the wife of the accused. Their marriage
was solemnized on 09.07.2008 as per Hindu rites and custom. For the
said marriage of the deceased with accused, her father had given dowry
i.e. cash of Rs.1,80,000/-, one Hero Honda Passion Plus Motor cycle,
gold and silver ornaments worth of Rs.1,00,000/-, one colour T.V.,
Almirah, household articles, utensils, furnitures, beddings and clothings
etc. But, two months after marriage, while deceased was leading her
conjugal life with the accused, he (accused) and his family members
compelled her (deceased) to bring Rs.2,00,000/- as dowry from her
father in order to purchase a car. For non-fulfillment of such demand,
the accused and in laws of the deceased started torturing the deceased
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two months after marriage and assaulted her (deceased) mercilessly.
While the deceased was in her husband's house i.e. in the house of the
accused, on 20.02.2010, the father of the deceased i.e. Antaryami Garei
(P.W.25) got information that, his daughter (deceased) has been hanged
to death in her husband's house.
After getting such information, the father of the deceased i.e
Antaryami Garei lodged F.I.R. (Ext.13) before the IIC, Jharpokharia
Police Station on that day i.e. on 20.02.2010.
Basing upon such F.I.R. (Ext.13), the IIC, Jharpokharia Police
Station Sri J.N. Jena registered Jharpokharia P.S. Case No.12 of 2010
and he (IIC) himself took up the investigation of the case.
3. During investigation, he (I.O.) examined the informant and other
witnesses, held inquest over the dead body of the deceased, prepared the
inquest report (Ext.2), visited the spot, prepared the spot map (Ext.19),
sent the dead body of the deceased through dead body challan (Ext.20)
for post mortem examination, seized the articles from the spot through
seizure list (Ext.14), after completion of post mortem examination,
seized the wearing apparels of the deceased through seizure list (Ext.12),
arrested the accused, seized wearing apparels of the accused through
seizure list (Ext.11), seized the dowry articles from the house of the
accused through seizure list (Exts.7 & 8), released that articles in the
zima of the informant by executing zimanama (Ext.15), seized the
attendance register, leave applications and joining applications of the
accused from his service place i.e. from Seemanta I.T.C., Jharpokharia
through seizure list (Ext.1), received post mortem report of the deceased
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(Ext.9). Due to transfer of the IIC (I.O.) J.N. Jena, he handed over the
charge of investigation of the case to IIC A.K. Biswal on 19.04.2010.
Accordingly, since 19.04.2010, the I.O. (A.K.Biswal) proceeded with
the rest part of the investigation of the case.
During investigation, he (I.O. A.K.Biswal) seized some
incriminating materials through seizure list (Ext.10), sent the seized
incriminating materials for chemical examination and report as per the
order of the learned Sub-Judicial Magistrate, Baripada through
forwarding report (Ext.16). Then on completion of investigation, he
(I.O.) submitted Final Form placing the accused to face trial U/s 498-A,
302, 304-B and 409 of the IPC, 1860 and Section 4 of the D.P. Act,
1961.
4. The learned Sub-Judicial Magistrate, Baripada having received
the Final Form as above took the cognizance of the said offences U/s
498-A, 302, 304-B and 409 of the IPC, 1860 and Section 4 of the D.P.
Act, and after observing the formalities, committed the case to the Court
of Sessions. That is how the Trial commenced against the accused by
framing charges for the said offences U/s 498-A, 302, 304-B & 409 of
the IPC, 1860 and Section 4 of the D.P. Act, 1961 against the accused.
5. In the Trial, prosecution examined total thirty (30) witnesses.
P.Ws.25, 23, 27 & 28 are the father, mother, brother and maternal uncle
of the deceased. Among the said four, P.W.25 (father of the deceased) is
the informant. P.Ws.8, 12, 24, 25 and 28 are the witnesses to the inquest.
P.Ws.1, 2, 3, 6, 7, 9, 10, 12, 22 & 26 are the independent witnesses;
those have been declared hostile by the prosecution. P.Ws.4, 5, 11 and
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19 are the employees of the Seemanta I.T.C. Among them P.W.11 is the
Principal of that Seemanta I.T.C. where the accused was serving as an
instructor. P.Ws.13 & 14 are the villagers of the native village of the
accused. P.Ws.15, 16, 17, 20 and 21 are the witness to the seizure lists.
P.W.18 is the doctors, who had conducted autopsy over the dead body
of the deceased and had prepared the post mortem report (Ext.9),
P.Ws.29 and 30 are the two investigating officers of the case. Out of
them P.W.29 has submitted Final Form on completion of the
investigation.
6. The prosecution, besides leading the evidence by examining the
above thirty (30) witnesses has also proved several documents (Exts.1
to 20), which include the F.I.R., inquest report, spot map, post mortem
report etc.
7. The plea of the defence was one of the complete denial to the
aforesaid allegations of the prosecution alleged against the accused and
his false implication into the case.
8. The specific plea of the defence as per his statements recorded
U/s 313 Cr.P.C. was that, the deceased has committed suicide through
hanging during the absence of the accused on being aggrieved with the
objection of the accused regarding her frequent mixing with one Pijush
Ghosh of her parent's village. That apart, before fifteen to twenty days
of the alleged incident, he (accused) was not residing with the deceased,
because, during that time, he (accused) was residing in his native village
Ratila for the harvesting of the paddy. He (accused) had cautioned the
deceased not to keep any contact or mix with Pijush Ghosh. On being
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annoyed upon such objection of the accused i.e. not to mix with Pijush
Ghosh, she (deceased) has committed suicide through hanging during
his absence from the house.
9. The Trial Court by placing reliance on the testimonies of P.Ws.23,
25, 27 and 28 found the accused guilty under Sections 498-A, 304-B, 302
of the IPC, 1860 and Section 4 of the D.P. Act, 1961 disbelieving the plea
of the defence and passed order of sentence against him (accused) as
aforestated.
10. The learned counsel for the appellant (accused) inviting our
attention to the depositions of P.Ws.23,25,27 and 28 submitted that, their
evidence is based on heresay, which is inadmissible under law, which
also stand contradictory to each other, ultimately probabilising the plea of
the defence. He, therefore, contended that, the Judgment of conviction
and order of sentence passed by the learned Trial Court against the
accused basing upon their evidence cannot be sustained.
11. On the contrary, the learned Additional Standing Counsel argued in
support of the finding of guilt as against the accused as has been returned
by the Trial Court contending that, the evidence of P.Ws.23, 25, 27 and
28 being not in variance and when corroborated each other, the same
coupled with evidence of the Doctor, who prepared the post mortem
report and he, therefore, urged that, the same is well in order.
12. It appears from the Judgment of the Trial Court that, the accused
has been convicted for the offences under Sections 498-A, 302, 304-B of
the IPC, 1860 and Section 4 of the D.P. Act, 1961 on the basis of the
evidence of four (4) witnesses i.e. P.Ws.23, 25, 27 and 28, those are the
mother, father, brother and maternal uncle of the deceased. Out of them
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P.W.25 (father of the deceased) and he is the informant. P.Ws.1, 2, 3, 6,
7, 9, 10, 12, 22 and 26 have turned hostile to the prosecution. P.Ws.13, 14
and 24 have specifically deposed in their evidence by stating that, they do
not know anything about the incident. P.Ws.4, 5, 11 and 19 are the
employees at the service place of the accused. They (P.Ws.4, 5, 11 and
19) have also no idea about the incident. P.W.8 is the Tahasildar, on
whose presence the inquest over the dead body of the deceased was
conducted. P.Ws.15, 16 and 17 are the witnesses to the seizure.
The houses of P.Ws.23, 25, 27 and 28 are situated in the State of
West Bengal, which is far away from the place of incident.
13. The evidence of P.Ws.23, 25, 27 and 28 in respect of the demand
of dowry as well as in respect of the allegation of tortures on the deceased
by the accused for non-fulfillment of any unlawful demand of dowry, is
general and omnibus in nature. Because, they (P.Ws.23, 25, 27 and 28)
have not deposed in their respective evidence about any specific day,
date, time and manner of alleged tortures by the accused nor even citing
any particular instance. That apart, their evidence are not at all going to
show that, the so-called demands were made by the accused from them
(P.Ws.23, 25 and 27) as a consideration for marriage. Therefore, their
aforesaid general and omnibus nature of allegation against the accused
regarding the demand of dowry and tortures on deceased for non-
fulfillment of any demand of dowry is not establishing the offences under
Sections 498-A of the IPC, 1860 and Section 4 of the D.P. Act, 1961. For
which, the judgment of conviction and order of sentence passed by the
learned Trial Court against the accused for the offences under Sections
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498-A of the IPC, 1860 and Section 4 of the D.P. Act, 1961 is not
sustainable under law.
14. According to the case of the prosecution, the death of the deceased
had occurred on 19/20 February, 2010 night. The F.I.R. was lodged by
the father of the deceased (P.W.25) on 20.02.2010 at about 10.30 P.M.
night (as reflected in the F.I.R. vide Ext.13). As per the endorsement of
learned Sub-Divisional Judicial Magistrate., Baripada, the F.I.R. vide
Ext.13 was reached at the Court on 27.02.2010.
The informant (P.W.25) who is the father of the deceased has
deposed in paragraph No.4 of his deposition that, <he heard about the
death of his daughter first, from the mouth of his fellow villager called as
Naik Babu. He also heard about the same from one of his friends at
Bambay Chhaka. Then, immediately he went to Bahargora P.S. From
there inside he telephoned to the police at Jharapokharia P.S., giving
information about the death of his daughter in the house of the accused
and requested them to conduct the investigation of the same. Thereafter,
the incident of death of his daughter was confirmed by the police of
Jharapokharia P.S. to the police at Baharagora P.S. Then, he accompanied
with the S.I. of Jharapokharia P.S. into the garage of the accused. Then,
he reached at Jharapokharia P.S. at about 1.30 P.M. to 2 P.M. on that
Saturday on 20.02.2010. They while inside the said garage, the S.I. did
the writings in his own hands and obtained his signature therein at the
spot to be given subsequently in the police station itself. He also
remained inside the garage of the accused for about one and half hours to
two hours there. After 10 minutes, he returned back to the police station
on that motorcycle along with the S.I. He had not even given anything in
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writing there inside. It was around 5 P.M., he gave his written F.I.R. at
Jharapokharia P.S.=
15. It appears from the above evidence of P.W 25 (informant) that, the
F.I.R. vide Ext.13 has been lodged much after the commencement of the
investigation of the case. Because, prior to the lodging of the F.I.R. vide
Ext.13, the investigation of the case had already started, as the S.I. of
police had accompanied him (P.W.25) to the spot from Jharpokharia P.S.
and after returning from the spot, the F.I.R. vide (Ext.13) was lodged. As
the F.I.R. vide (Ext.13) has been lodged in the midst of the investigation,
for which, the said F.I.R. vide Ext.13 is inadmissible under law being hit
under the provision of Section 162 of the Cr.P.C., 1973.
The above evidence of P.W.25 for the scribing of the F.I.R and as
well as the time of presentation of the same at the police station, has been
contradicted by the son of P.W.25 i.e. P.W.27.
16. P.W.27 has deposed in paragraph No.8 of his deposition that, <he
had written the total contents of the F.I.R. as per the instruction of his
father (P.W.25).=
P.W.27 has deposed in paragraph No.15 of his deposition that, <he
reached at the P.S. at about 1 P.M. approximately on the date of the
alleged occurrence. He went to P.S. after visiting the house of his sister.
At about 7 A.M. approximately on the next date, he presented the written
F.I.R at the P.S. at the given time by the police.=
17. P.W.28 (who is the maternal uncle of the deceased) has deposed in
his examination in chief that, <after knowing about the death of his niece,
he came to the house of the accused and then after seing her dead body
there, he (P.W.28) went to the police station. At that time, his brother in
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law (P.W.25) was sitting at the P.S. Then, they (P.Ws.28 and 25) came to
the spot with the police. Police conducted the inquest over the dead body
of the deceased.=
18. The above evidence of P.Ws.25, 27 and 28 are contradictory to
each other. Because, when P.W.25 (informant) has deposed that, the
F.I.R. was scribed by the police as per his instruction, his son (P.W.27)
has contradicted to the same and he (P.W.27) has deposed that he scribed
the F.I.R.
When the informant (P.W.25) has deposed that, he had presented
the F.I.R. at about 5 P.M., P.Ws.27 and 28 have contradicted, as it is
forthcoming from their evidence that, the F.I.R. was presented one day
after the death of the deceased. The reflection made in the F.I.R. is also
contradictory to the above evidence of P.Ws.25, 27 and 28, which shows
that, the F.I.R. was presented at 10.30 P.M. on 20.02.2010. That too, the
F.I.R. (Ext.13) has reached in the Court of learned Sub-Divisional
Judicial Magistrate on 27.02.2010 for the first time on being sent by the
investigating officer.
19. The above evidence of P.Ws.25, 27 and 28 coupled with the
reflections made in the F.I.R. (Ext.13) would show that, the F.I.R. of this
case vide Ext.13 has been prepared much after the occurrence with due
deliberations, discussions and consultations with the police, that too, in
the midst of the investigation. For which, the basic foundation of the case
i.e. F.I.R. (Ext.13) (upon which, the entire building of the prosecution has
been constructed upon) is shaken.
20. In this case at hand, it is the specific plea of the defence that, in the
alleged date of the incident, the accused was not with the deceased in the
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house in question. Because, 15 to 20 days prior to the incident, he
(accused) was staying in his native village i.e. Ratila for the purpose of
harvesting.
On that aspect the mother of the deceased i.e. P.W.23 has deposed
in paragraph No.5 of her examination in chief that, <her daughter
(deceased) had telephoned them 3 days preceding her death, alleging that,
the accused was going to his college, but not coming to her into his house
with further allegation that, the accused was returning back from his
college to his native village.=
21. P.W.27 brother of the deceased has deposed in Paragraph Nos.7
and 8 of his examination in chief that, <a few days preceding the alleged
murder, the accused deserted her (deceased) and went away from his
house and failed to return back and failed to look after his sister even in
spite of her repeated telephonic calls. During then, he was regularly
attending his college at Bambay Chhaka, which is approximately at a
distance of 1 K.M. from his house and so also went to his own garage for
about two to three times to the vision of her sister. About 3 days
preceding the death of his sister, he telephoned her (deceased).
22. The father of the deceased (P.W.25) has deposed in paragraph No.2
of his examination in chief that, <about 15 days prior to the death of his
daughter, the accused ceased keeping relationship with his daughter as
men and wife. During the course of the said period, he (accused) ceased
visiting to his own house in spite of his attending to the place on duty at
the ITI, and putting his signature in the attendance register in the proof of
his attendance at his place of work. Side by side, while he was attending
the place of work from his native village, he was also coming to his
CRLA No.06 of 2012
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garage through its opening keeping an eye on his daughter inside his
house.=
23. It appears from the above evidence of P.Ws.23, 25 and 27 that, 15
days prior to the incident, the accused was not staying with the deceased
in the spot house, but he (accused) was staying in his native village at
Ratila, from where he was comming to his service place and returning
back to his native village i.e. Ratila, which is probabilising to the plea of
the defence i.e. on the date of incident, the accused was not with the
deceased in the spot house. There is no other evidence in the record on
behalf of the prosecution to show that, the accused was present with the
deceased in the spot house at the time of alleged incident. Because,
though, the neighbourers of the spot house have been examined on behalf
of the prosecution as P.Ws.1, 2, 3 and 26, but they have not uttered or
whispered a single word about the staying of the accused with the
deceased in the spot house at the time of incident.
24. From the above evidence of the witnesses of the prosecution i.e.
P.Ws.23, 25, 27 & 28 about the non-staying of the accused with the
deceased at the spot house 15 days prior to the incident including at the
time of incident, we don't find the defence plea to be wholly improbable.
It is settled propositions of law that, when the witnesses of the
prosecution depose in support of the plea of the defence, then, the plea of
the defence becomes acceptable and ultimately makes the case of the
prosecution doubtful.
25. When the entire case of the prosecution is hinging upon the
circumstantial evidence only in absence of any direct evidence and when
the evidence of above witnesses of the prosecution is probabilising the
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plea of the defence i.e. the absence of the accused with the deceased in
the spot house at the time of the alleged incident and when the basic
foundation of the prosecution case i.e. the F.I.R. (Ext.3) has remained
shaky being inadmissible under law due to creation of the same through
due deliberations, discussions and consultations with the police, much
after the commencement of the investigation, then, at this juncture, the
case the case of the prosecution cannot said to be free from doubt and
suspicion.
26. When as per the discussions and observations made above, the case
of the prosecution is not free from doubt, then we are led to hold that, the
impugned judgment of conviction and order of sentences passed against
the accused by the learned Trial Court cannot be sustainable under law.
We thus find that, prosecution has not proved its case against the
appellant (accused) beyond reasonable doubt for having committed the
offences i.e. demand of dowry, dowry torture, dowry death and murder of
the deceased Bulurani. Thus, we hold that, the Judgment of conviction
and order of sentences passed by the learned Trial Court under Sections
498-A, 304-B and 302 of the IPC, 1860 and Section 4 of the D.P. Act,
1961 against the accused cannot be sustained.
27. In the result, the Appeal is allowed. The judgment of conviction
and order of sentence dated 30th November, 2011 passed by the learned
learned Additional Sessions Judge (F.T.C.), Baripada, Mayurbhanj
arising out of G.R. Case No.16 of 2010 against the accused (Appellant)
are hereby set aside.
The accused/Appellant is acquitted from the
charges/offences under Sections 498-A, 302 & 304-B IPC and Section 4
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of the D.P. Act. Accordingly, since the Appellant is on bail; his bail
bonds shall stand discharged.
(A.C. Behera),
Judge.
D. Dash, J. I Agree.
(D. Dash),
Judge.
Orissa High Court, Cuttack.
19th October, 2023//Utkalika Nayak//
Junior Stenographer
Signature Not Verified
Digitally Signed
Signed by: UTKALIKA NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 19-Oct-2023 17:25:00
CRLA No.06 of 2012
