Bhagaban Raut vs State Of Orissa
2023 Latest Caselaw 13106 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                         C.R.A No.143 of 1993
      This is an Appeal under Section 374(2) of the code of Cr.P.C.


     Bhagaban Raut                         ....         Appellant


                                -versus-


     State of Orissa                       ....         Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

             For Appellant     -      Ms. M. Mishra, Amicus Curiae.
                                      Advocate.

             For Respondent    -      Mr. S. Pattanaik,
                                      Addl. Government Advocate.
             CORAM:
             MR. JUSTICE A.C.BEHERA

Date of Hearing :22.09.2023 :: Date of Judgment : 19.10.2023

1. The appellant by preferring the appeal has challenged the Judgment of conviction and order of sentences dated 07.04.1993 passed by the learned Addl. Sessions Judge, Rourkela in S.T. Case No.43/20 of 1992 arising out of G.R. Case No.1076 of 1991 corresponding to Sector- 15 P.S. Case No.66 of 1991 of the court of learned S.D.J.M., Panposh, Rourkela.

2. The appellant has been convicted for commission of offences under Section 4 of the D.P. Act, 1961, Sections 498-A and 304-B of the IPC, 1860 and accordingly, he has been sentenced to undergo R.I. for 10 (ten)

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for the offence under Section 304-B of the IPC, 1860 and R.I. for 2 (two) years for the offence under Section 498-A of the IPC, 1860 and R.I. for 1 (one) year and fine of Rs.5,000.00 (rupees five thousand) in default to undergo further R.I. for a period of two months for the offence under Section 4 of the Dowry Prohibition Act, 1961 with a direction for running all the substantive sentences concurrently.

Prosecution Case

3. The accused is the husband of the deceased Durga. Their marriage was solemnized on 23.02.1991 at Jagannath temple Sector-3 Rourkela. After the marriage of the deceased with the accused, they were leading their conjugal lives in the quarter of the father of the accused i.e. Hari Bandhu Rout, vide quarter No.B/13 in Sector-16, Rourkela. But, surprisingly on 14.07.1991, the deceased was found hanging dead in a room in the quarter of the father of the accused.

4. After the death of the deceased, the younger brother of the accused i.e. Bijaya Kumar Raut intimated about the suicidal death of the deceased at the nearest police station i.e. at Sector-15 P.S., Rourkela.

Basing upon such report of the brother-in-law of the deceased vide Ext.25/1, Sector-15 Police Station U.D. Case No.8/91 was registered by the IIC and direction was given to the A.S.I. Mr. Binod Bihari Patel of that P.S. to take up the inquiry of the U.D. case.

During inquiry, the enquiring officer of the U.D. Case i.e. A.S.I. Mr. B.B. Patel visited the spot, prepared the spot map (Ext.12), examined the informer of the said U.D. Case i.e. Bijaya Kumar Rout and also examined other witnesses, held inquest over the dead body of the deceased, prepared inquest report (Ext.4), seized a letter through seizure list (Ext.3), seized other materials through other seizure lists, sent the dead body of the deceased for post mortem examination and accordingly,

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post mortem examination over the dead body was conducted. After completion of the post mortem examination over the dead body of the deceased, he (I.O) seized the wearing apparels of the deceased along with her wearing ornaments through seizure list (Ext.7) and released the wearing ornaments of the deceased in the zima of the father of the deceased. But, when in the midst of the enquiry of the U.D. Case, the brother of the deceased i.e. Basanta Kumar Patra lodged a written F.I.R. (Ext.5) against the accused along with his father on 17.07.1991 and when basing upon such F.I.R. (Ext.5), the I.I.C Sector-15 P.S. i.e. Mr. R.K. Dash registered Sector-15 P.S. Case No.66/91 then, as per the direction of S.P., the D.S.P. Mr. B.B. Nayak, took up the the investigation of that Sector-15 P.S. Case No.66/91.

5. During investigation, he (I.O.) collected all the records of above Sector-15 P.S. U.D. Case No-66/91 from the enquiring officer i.e. A.S.I. B.B. Patel, visited the spot, examined the witnesses, arrested the accused and forwarded him to the court. Then, he (I.O. Mr. B.B. Nayak) handed over the charge of the investigation of the case to the next I.O. Mr. B.K. Mohanty on 12.08.1991.

Since, 12.08.1991, the I.O. (B.K. Mohanty) proceeded with the rest part of the investigation of the case. During investigation, he (I.O. B.K. Mohanty), arrested another accused Haribandhu Raut (father-in-law of the deceased) and forwarded him to the court. He (I.O) seized some other incriminating materials and then, on completion of the investigation, submitted final form, placing the accused along with his father Haribandhu Raut to face trial under Section 4 of the D.P. Act, 1961 and Sections 498-A and 304-B read with 34 of the IPC, 1860.

Accordingly, after commitment of the case to the court of learned Addl. Sessions Judge, Rourkela from the court of learned S.D.J.M,

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Panposh, Rourkela, the accused along with his father Haribandhu Raut faced trial in that court having been charged under Section 4 of the D.P. Act, 1961 and Sections 498-A and 304-B read with 34 of the IPC, 1860.

6. The plea of the defence was one of complete denial to the above alleged allegations of the prosecution regarding the demand of dowry, subjecting the deceased to cruelty for non-fulfillment of dowry and as well as committing the dowry death of the deceased.

7. The specific plea of the defence was that, the deceased has committed suicide in the quarter of the father of the accused during the absence of the accused persons from the said quarter without their knowledge only for the reason that, as the deceased had made love marriage to the accused Bhagaban Rout, to which her parents family members were not accepting happily, for that reason, the deceased was always unhappy and by losing her mental balance for such unhappiness, she (deceased) committed suicide during the absence of the family members of the accused persons including the accused persons from the quarter. But, no offence has been committed by them (accused persons). They (accused persons) have been implicated falsely into the case.

8. In order to substantiate the aforesaid charges against the accused persons before the trial court, 13 numbers of witnesses were examined and several documents were exhibited on behalf of the prosecution vide Exts.1 to 27, which includes the F.I.R. (Ext.5) and P.M. report (Ext.1). Whereas the defence examined 3 witnesses on its behalf including the accused persons as D.W.1 to D.W.3 without proving any document from their side.

9. Out of the 13 witnesses of the prosecution, P.W.1 is the Medical Officer, who had conducted autopsy over the dead body of the deceased and had prepared the P.M. report (Ext.1), P.W.2 Basanta Kumar Patra,

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who is the brother of the deceased, who had lodged the F.I.R. (Ext.5), (P.W.3) is the mother of the deceased, P.W.5 (Rabindranath Patra) is the father of the deceased and P.W.4 (Guru Prasad Mishra) is the Executive Magistrate, in whose presence the inquest over the dead body of the deceased was conducted. P.Ws.6,7 and 8 are the neighbourers of P.Ws.2,3 and 5. P.W.9 is the police constable, who had accompanied the dead body of the deceased for post mortem examination. P.W.10 is the A.S.I who had conducted inquiry to the Sector-15 P.S. U.D. case. P.Ws.12 and 13 are the investigating officers of the case. Among P.Ws.12 and 13, P.Ws.12 is the last investigating officer who had submitted chargesheet on completion of the investigation.

10. Upon examination of the evidence available on record, the learned trial court by placing reliance upon the testimonies of P.Ws.2,3,5,6,7 and 8 (brother, mother, father of the deceased and their neighbourers) found the accused guilty for the offences under Section 4 of the D.P. Act, 1961, Section 498-A and 304-B of the IPC, 1860 and sentenced him as aforestated disbelieving the plea of the defence.

11. Learned counsel for the appellant (accused) inviting the attention to the depositions of P.Ws.2,3,5,6,7 and 8, submitted that, their evidence relating to the allegations concerning demand of dowry, torture to the deceased for dowry and commission of dowry death of the deceased are general, omnibus as well as heresay in nature, for which, their evidence is not sufficient for holding the accused guilty for the aforesaid offences. So according to him (learned counsel for the accused) the Judgment of conviction and order of sentences passed by the trial court against him (accused) cannot be sustainable under law.

12. On the contrary, the learned Addl. Government Advocate argued in support of the impugned Judgment of conviction and order of sentences

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passed by the trial court against the accused contending that, when the death of the deceased has occurred within 7 years of her marriage, that too in her in-laws house and when P.Ws.2,3,5 are non-else, but they are the brother, father and mother of the deceased and when P.W.6,7 and 8 are the neighbours of P.Ws.2,3 & 5, for which, the implications made by them (P.Ws.2,3,5,6,7 & 8) against the accused through their respective evidence cannot be held as unbelievable. Because, they are the natural witnesses relating to the incident, for which, according to him (learned Addl. Government Advocate for the State), the Judgment of conviction and order of Sentence passed against the accused by the trial court cannot be interfered with.

13. It is the admitted case of both the sides that, the death of the deceased is through hanging during the absence of the accused from the house/quarter.

It appears from the evidence of the enquiring officer of the Sector- 15 P.S. U.D. Case No.8 of 1991 that, the said U.D. Case was registered at Sector-15 P.S. on the very same day of the death of the deceased. The information about the suicidal death of the deceased was given at Sector- 15 police station immediately after the death of the deceased by her brother-in-law, who is the younger brother of the accused.

14. The F.I.R. vide Ext.5 has been lodged by the brother of the deceased three days after the death of the deceased and as well as 3 days after the starting of enquiry of the Sector 15 P.S. U.D. Case No.8 of 1991.

15. The brother of the deceased i.e. P.W.2 (informant) has deposed in Para Nos.8 and 9 of his examination in chief that, "in his presence, police had also made inquest over the dead body of the deceased and prepared the inquest report vide Ext-4, he signed thereon vide Ext.4/1. When his father wanted to lodge F.I.R. with police, the police avoided, saying that,

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they would start a police case over the matter and there was no necessity of any F.I.R. He then, went to the Superintendent of Police, Rourkela and orally reported the incident to him. The S.P. asked him to give in writing. So, he got a report typed, which was typed as per his version and after going through the same and finding correct, he signed thereon. Through a lady police officer, S.P. sent him to Sector-15 Police Station, where he submitted the F.I.R vide Ext.5."

The said informant (P.W.2) has deposed in Para Nos.15 and 16 of his deposition by stating that "Sector-15 Police Station would be about 2 K.Ms. from the residence of the accused persons. Before drafting the F.I.R., he had consulted a Lawyer in Sector-16, who advised him (P.W.2) to meet the S.P. and lodge F.I.R. with the police and report the matter to M.L.A. and C.B.I. He got the F.I.R typed through a typist at Rourkela. It was already typed out and taken by, him when he first went to meet the Superintendent of Police. He had drafted the F.I.R. by his own hand on a paper and referring to that draft, the typist typed out the (Ext.5). After Ext.5 was typed out, he destroyed that draft."

It appears from the above evidence of P.W.2 (informant) that, he has prepared the F.I.R. vide Ext.5 after due deliberations, consultations and discussions with the advocate and as well as with the police three days after the death of the deceased.

P.Ws.2,3,5,6,7 and 8 are not the direct eyewitnesses to any incident relating to the alleged tortures by the accused on the deceased. They (P.Ws.2,3,5,6 and 7) have not deposed by stating any specific day, date and time with specific instance of torture on the deceased by the accused. The evidence of P.Ws.2,3,5,6,7 and 8 relating to the alleged tortures on the deceased are general and omnibus in nature. Their evidence also does

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not show any demand of the accused as a consideration of his marriage with the deceased.

16. There are three essentials of Section 304 B of the IPC, 1860 and the said essentials are:

"(1) The death of the deceased must have occurred otherwise then under normal circumstances, (2) Her death must have occurred within 7 years of her marriage and (3) The deceased must have been subjected to cruelty or harassment by her husband or the relatives of her husband soon before her death for or in connection with any demand for dowry."

17. As per the appreciations made above to the evidence of P.Ws.2,3,5,6,7 and 8, the third essential of Section 304-B of the IPC, 1860 i.e. subjecting the deceased to cruelty or harassment soon before her death for or in connection with any demand for dowry has not been fulfilled. So, the offence under Section 304-B of the IPC, 1860 has been failed to be established against the accused.

18. It is the settled propositions of law that, unless and until, all the essentials of Section 304-B of the IPC, 1860 are established on behalf of the prosecution through legally admissible evidence, the presumptions provided under Section 113-B of the Indian Evidence Act, 1872 relating the presumption for commission of dowry death shall not be applicable.

So, due to non-fulfillment of the above 3rd essential of Section 304- B of the IPC, 1860, for the reasons as stated above, the question of drawing up of the presumption for commission of dowry death against the accused does not arise.

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19. It is the settled propositions of law that, no conviction under Section 498 A of the IPC, 1860 against any accused can be made on the general and omnibus nature of allegations of tortures on the victim.

20. As per the discussions and observations made above, when it is held above that, the F.I.R. vide Ext.5 has been prepared after due deliberations, discussions and consultations with the lawyer and police and when the original F.I.R. (from which the so-called F.I.R. vide Ext.5 was typed) has been suppressed and when there is no material in the record on behalf of the prosecution to show that any demand was made by the accused from P.Ws.2,3,5 as a consideration of his marriage with the deceased and when the evidence of P.Ws.2,3,5,6,7 and 8 relating to the tortures on the deceased are general and omnibus and as well as heresay in nature and when prosecution has not become able to fulfil all the essentials of Section 304-B of the IPC, 1860 for making out that offence against the accused through legally admissible evidence, then at this juncture, it is held that, prosecution has failed to prove the charges/offences under Section 4 of the D.P. Act, 1961, Sections 498-A and 304-B of the IPC, 1860 against the accused beyond reasonable doubt. For which, there is justification under law for making interference with the Judgment of conviction and order of sentences passed by the trial court against the accused through this appeal filed by him (accused). So, the appeal filed by the accused (appellant) shall succeed.

21. In the result, the appeal filed by the appellant is allowed.

22. The Judgment of conviction and order of sentences dated 07.04.1993 passed by the learned Addl. Sessions Judge, Rourkela in S.T. Case No.43/20 of 1992 against the accused (appellant) are hereby set aside.

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23. The accused (appellant) is acquitted from the offence/charges under Section 4 of the D.P. Act, 1961 and under Sections 498-A and 304- B of the IPC, 1860 on the ground of benefit of doubt.

Accordingly, the accused (appellant) is directed to be set at liberty forthwith after being discharged from the bail bonds.

24. Accordingly, the appeal is disposed of finally.

(A.C. Behera), Judge.

Orissa High Court, Cuttack.

19th October, 2023//Rati Ranjan Nayak// Junior Stenographer

Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India Date: 19-Oct-2023 21:57:57

C.R.A. No.143 of 1993