Orissa High Court

Rama Chandra Das vs State Of Orissa on 19 August, 2025

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRA No.147 of 1999

(In the matter of an application under Section 374(2) of the Criminal
Procedure Code, 1973)

Rama Chandra Das                      .......                Appellant

                                -Versus-

State of Orissa                       .......             Respondent

For the Appellant : Mr. Satya Narayan Mishra(4), Amicus Curiae For the Respondent : Smt. Siva Mohanty, Additional Standing Counsel

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 07.08.2025 :: Date of Judgment: 19.08.2025

S.S. Mishra, J. The present criminal appeal is directed against the

judgment dated 13.05.1999 passed by the learned Additional Sessions Judge, Jajpur in S.T. No. 196/25 of 1998, arising out of G.R. Case No.

62 of 1994, whereby the appellant, while being acquitted of the charge

under Section 304-B of the I.P.C., was convicted under Section 498-A of

the I.P.C. and Section 4 of the Dowry Prohibition Act, 1961, and

sentenced to undergo rigorous imprisonment for six months on each

count, with both sentences to run concurrently.

2. The present appeal has been pending since 1999. When the matter

was called for hearing, consistently none appeared for the appellant.

Therefore, on 22.07.2025, Mr. Satya Narayan Mishra (4) has been

appointed as Amicus Curiae to assist the Court in the matter.

3. Heard Mr. Satya Narayan Mishra (4), learned Amicus Curiae for

the appellant and Smt. Siva Mohanty, learned Additional Standing

Counsel for the State.

4. The prosecution case in brief is that the deceased Damayanti,

younger sister of P.W.1 Kedarnath Malik, was married to the appellant

Rama Chandra Das in July, 1991, according to Hindu rites and customs.

At the time of marriage, presentation articles were given from the side of

the bride. It is alleged that, from the side of the appellant, there was a

demand for Rs.10,000/- towards dowry. Out of the said amount,

Rs.5,000/- was allegedly paid at the time of marriage, and the remaining

Rs.5,000/- was promised to be paid later.

5. The further case of the prosecution is that the balance amount was

not paid despite repeated demands. On account of such non-payment, the

appellant and his parents are alleged to have subjected Damayanti to

physical and mental cruelty. It is alleged that they imputed immoral

character to her, suggesting that she was unchaste. The allegation went to

the extent that, when Damayanti became pregnant, the appellant and his

family members told her that the child in her womb was illegitimate.

6. According to the prosecution, the ill-treatment escalated, and on

13.01.1994, the appellant allegedly assaulted Damayanti mercilessly,

causing injuries, for which she was treated at the Mangalpur Primary

Health Centre. It is further alleged that, being unable to bear the

humiliation, mental agony, and cruelty, Damayanti consumed poison on

15.01.1994 and succumbed to its effects. An FIR was lodged, and

investigation ensued, leading to the submission of a charge-sheet.

Investigation was initially undertaken by Mr. S.C. Ghose, the then

Investigating Officer, and later completed by P.W.5, Bansidhar Swain,

who submitted the charge-sheet against the appellant.

7. During trial, the prosecution examined five witnesses. P.W.1 was

the informant and elder brother of the deceased, who deposed about the

marriage, the alleged dowry demand, the payment of Rs.5,000/-, the

imputation of immoral character, and the assault preceding the death.

P.W.2, the priest who solemnised the marriage, stated that he had no

knowledge of the alleged dowry demand or post-marriage cruelty.

P.W.3, a co-villager, turned hostile and denied knowledge of ill-

treatment. P.W.4, Dr. Prakash Chandra Bal, conducted the post-mortem

examination and found three ante-mortem contusions over the scapular

region and on the middle and ring fingers of the right hand, along with

symptoms of poisoning. P.W.5, the subsequent I.O., placed the charge-

sheet but did not conduct the initial investigation. The original

Investigating Officer, Mr. S.C. Ghose, was not examined, and the FIR

was not exhibited.

8. The trial Court, after evaluating the evidence, acquitted the

appellant of the charge under Section 304-B I.P.C., holding that the

essential ingredients of "dowry death" were not proved. However, it

found that cruelty and dowry demand stood established through P.W.1's

testimony and the medical evidence of ante-mortem injuries, and

accordingly convicted the appellant under Section 498-A I.P.C. and

Section 4 of the Dowry Prohibition Act. The appellant was sentenced to

undergo R.I. for six months on each count, with both sentences to run

concurrently. The relevant portion of the aforesaid judgment is extracted

herein below:-

"In the present case no explanation has been offered as to the circumstance under which marks of violence such as red colour contusion over the scapular region and contusion on middle and ring finger of the right hand of the deceased occurred. The accused is bound to give explanation for the same in view of section 105 of the Evidence Act. In the absence of any explanation a presumption can be drawn that the accused had beaten the deceased causing severe violence on her body which had driven the woman to

commit suicide. The evidence of P.W.1 that the accused had imputed immoral character to the deceased and had blamed her pregnancy as illicit pregnancy remains unimpeached in the cross examination. So imputation of immoral character must have caused mental agony to the deceased and followed by assault must have drove her to commit suicide.

In view of the above discussion the charge u/s.498 (A) I.P.C. also stands proved but there is no evidence to sustain the charge u/s.304(B) I.P.C.

Thus while acquitting the accused of the charge u/s.304(8) I.P.C. I hold him guilty of the offences u/s.498 (A) 1.P.C. and section-4 of the D.P.Act. Accordingly he is convicted u/s. 498 (A) I.P.C. and section 4 of the D.P.Act."

9. Having considered the submissions and carefully examined the

record, this Court finds that the conviction recorded by the trial court

suffers from serious infirmities.

10. The F.I.R., which is the foundation of the prosecution's case, has

not been exhibited during the trial and even the scribe of the F.I.R. has

not been examined. In the absence of exhibiting and proving the FIR

through the informant or the Investigating Officer, the prosecution loses

an important piece of contemporaneous evidence for corroborating the

oral testimony of witnesses.

11. Out of the five witnesses examined, except P.W.1, the informant,

no witness has spoken about the actual demand of dowry, the alleged

attribution of immoral character, or the alleged acts of cruelty by the

appellant. P.W.2, the priest, had no knowledge of post-marriage

incidents. P.W.3 turned hostile and did not support the prosecution.

P.W.4 is the doctor, whose evidence is confined to medical findings, and

P.W.5 is a subsequent police officer who only filed the charge-sheet. The

absence of independent and corroborative testimony significantly

weakens the prosecution case.

12. The Investigating Officer, Mr. S.C. Ghose, who conducted the

investigation from the beginning, has not been examined, and no

explanation has been offered for such non-examination. This omission

has deprived the defence of the opportunity to confront him with

contradictions in the statements of prosecution witnesses recorded under

Section 161 Cr.P.C., which is a valuable right of the accused.

13. Several incriminating circumstances relied upon by the trial Court,

such as the alleged imputation of immoral character, the supposed

promise to pay the balance dowry, and the inference of cruelty from

medical injuries, were not specifically put to the appellant during the

recording of the statement of the accused under Section 313 Cr.P.C. It is

a settled law that any circumstance and/or incriminating materials not

put to the accused under Section 313 Cr.P.C. cannot be used against him.

This lapse has caused grave prejudice to the appellant's right to a fair

trial. The Hon'ble Supreme Court in Sujit Biswas vs. State of Assam,

reported in (2013) 12 SCC 406, held thus:-

"20. It is a settled legal proposition that in a criminal trial, the purpose of examining the accused person under Section 313 CrPC, is to meet the requirement of the principles of natural justice i.e. audi alteram partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his

explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 CrPC, cannot be used against him and must be excluded from consideration. The said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross-examined with reference to such statement."

14. While the medical evidence of ante-mortem contusions is relevant,

it cannot, in the absence of clear and cogent oral evidence, prove cruelty

"as defined" under Section 498-A I.P.C. The prosecution must establish

beyond reasonable doubt that the conduct of the accused was willful and

of such nature as to drive the woman to commit suicide or to cause grave

injury or danger to her life or health. In the present case, the link

between the alleged acts and the suicide has not been established with

legal certainty.

15. In view of these deficiencies, the non-exhibition of FIR, lack of

corroborative testimony, non-examination of the I.O., and omission to

put key incriminating material to the accused, the conviction cannot be

sustained.