Orissa High Court

Niranjan Behera And Another vs State Of Orissa on 19 August, 2025

           THE HIGH COURT OF ORISSA AT CUTTACK

                             CRA No. 257 of 1996

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


Niranjan Behera and another           .......                            Appellants

                                   -Versus-

State of Orissa                      .......                          Respondent

For the Appellants : Mr. D.P. Dhal, Senior Advocate

For the Respondent : Ms. Sarita Moharana, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 12.08.2025 : Date of Judgment: 19.08.2025

S.S. Mishra, J. The present criminal appeal filed by the appellants

under Section 374 (2) of Cr.P.C. is directed against the judgment of

conviction and order of sentence dated 20.09.1996 passed by the learned

Second Additional Sessions Judge, Berhampur in Sessions Case No.

1/1996 [S.C. 421/95 (GDC)], whereby both the appellants have been convicted for offence punishable under Sections 304 (B)/498-A of I.P.C.

read with Section 4 of the Dowry Prohibition Act and in lieu of the said

conviction, the appellants were sentenced to undergo R.I. for seven years

for the offence under Section 304 (B) of IPC and each of them have also

been sentenced to R.I. for two years for the offence under Section 498-A

of IPC and one year for the offence under Section 4 of the D.P. Act.

2. The appellant no.1 is the husband of the deceased, whereas

appellant no.2 is the mother-in-law of the deceased. During pendency of

the present appeal, on 08.12.2004, the appellant no.1 has died. Therefore,

the present appeal qua him stood abated. There is no application moved

by anyone under Section 394 Cr.P.C. Therefore, the present appeal is

only confined to appellant no.2.

3. Heard Mr. D.P. Dhal, learned Senior Counsel for the appellant

no.2 and Ms. Sarita Moharana, learned counsel for the State.

4. The prosecution case tersely stated is that accused Niranjan

(appellant no.1) is the son of Srimati (appellant no.2). The marriage

between Niranjan and Mini Behera (deceased) was solemnized on

09.02.1995 in the temple of Lord Jagannath at Aga Sahi, Berhampur.

After the marriage, the deceased went to the house of the accused

persons and started living there as wife of Niranjan Behera. On

28.06.1995 around 10.30 A.M. the deceased while staying in the house

of the accused persons received serious burn injuries and shortly

thereafter succumbed to such injuries. It is alleged that prior to the

finalization of the marriage the accused persons had demanded cash of

Rs.25,000/-, a gold ring for the bride-groom and three tolas gold

ornaments in addition to the other customary household articles as

dowry. The father of the deceased had given cash of Rs.25,000/- and

gold ornaments weighing one tola and he had not been able to give the

balance two tolas of gold ornaments due to financial hardship. The

deceased after going to the house of the accused persons was subjected

to cruelty and harassment for not bringing the balance two tolas of gold

ornaments as agreed upon earlier. Thereafter, the deceased was subjected

to more and more cruelty and harassment in the house of her in-laws and

ultimately she was forced to end her life on 28.06.1995 at 10.30 A.M.

5. On the basis of the aforesaid allegations, the police investigated

the allegations of the F.I.R. and filed the charge sheet against the

accused-appellants for the offence punishable under Sections 498-A/304

(B)/34 I.P.C read with Section 4 of the D.P. Act. Both the appellants

stood charged for the offences, as mentioned above and on their stance

of denial, they were put to trial.

6. The prosecution in order to prove its case examined as many as

seven witnesses, whereas the defence took a stand of complete denial of

any demand of dowry or cruelty and claimed trial.

7. P.W.1, was the A.S.I. of Police attached to Bada Bazar P.S., who

first enquired into the matter in a U.D. case and lodged the F.I.R., P.W.2

was the cousin of the deceased, who claims to be a witness to demand of

dowry by the accused persons and payment of the same by the parents of

the deceased, P.Ws.3 and 6 are the father and mother respectively of the

deceased, P.W.4 is the uncle of the deceased, who claims that the

deceased had disclosed before him that she was being harassed and

tortured by the accused persons for dowry. P.W.5 was the doctor, who

conducted post mortem examination on the dead body and P.W.7 was

the I.O. of the present case who investigated the present case and

submitted the charge sheet.

8. The trial court by taking into consideration the entire evidence on

record as well as the defence plea has recorded as under:

"8. It is now to be seen if the deceased was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry.

9. P.W.2 the cousin of the deceased stated that it had been settled that cash of Rs.25,000/-and gold ornaments would be given as dowry. He further disclosed that against the settled quantity of three tolas of gold ornaments only one tola of gold ornaments were given to the deceased and this infuriated the accused persons. P.W.2 claimed that on one occasion he had been to the house of the accused persons when the deceased showed him marks of injury on her body. P.W.2 further claimed that two days before the death of the deceased he had been to the house of the accused persons and the deceased told him that she was being regularly assaulted for dowry and requested him to tell her parents to arrange the balance gold ornaments weighing two tolas. P.W.2 was put to searching cross- examination by the learned Counsel for the defence but nothing was elicited from his lips, so as to discard his sworn testimony. P.W.4 the aunt of the deceased also claimed that the deceased had disclosed before her that she was being constantly tortured for not bringing the balance two tolas of gold ornaments. P.W.4 also stood the test of cross-examination fairly well. Merely because P.W.2 and 4 are closest relatives of the deceased their evidence cannot be thrown out. I find no reason to disbelieve the evidence of P.Ws 2 and 4 I am of the opinion

that the prosecution has succeeded in establishing that soon before her death the deceased was subjected to cruelty and harassment by the accused persons in connection with demand for dowry. Thus it is seen that all the ingredients required to show that the deceased died a dowry death have been fulfilled in this case.

10. I shall now proceed to examine the evidence of D.W.1 the sole witness for the defence. D.W.1 in his evidence stated that there was no demand for dowry and the marriage between Niranjan and the deceased being a love marriage there was no question of demand of any dowry. D.W.1 stated that the marriage was held against the wishes of the parents of the deceased and therefore it was held in a temple and not in the house of the deceased. The evidence of D.W.1 appears to be wholly unreliable and a tutored one. He claimed that his brother had married the deceased against the wishes of her parents. At the same time he stated that ten days after the marriage his brother received the customary invitation from the parents of the deceased and went to their house. He also stated that his brother left the deceased in her parents' house and returned after one day. He deposed that the deceased stayed in her parents' house for three months and during this period his brother Niranjan visited his in-laws frequently almost all Sundays and holidays. D.W.1 claimed that Niranjan himself went to his in-laws house and brought the deceased back to his house and 10 to 12 days thereafter the mother of the deceased sent P.W.2 to Niranjan requesting him for financial help. If the marriage between the deceased and Niranjan had taken place without the consent of the parents of the deceased they would not have entertained the deceased and accused Niranjan in their house nor would they have allowed accused Niranjan to visit to their house on all Sundays and Holidays. It is thus seen that D.W.1 blew hot and cold in the same breath. One part of his evidence contradicts the other."

9. On the basis of the aforementioned appreciation of evidence, the

trial court found the appellants guilty of offences under Sections 498-

A/304 (B)/34 I.P.C read with Section 4 of the D.P. Act and accordingly

sentenced them, as mentioned above. Aggrieved by the aforementioned

findings returned by the learned trial court, which culminated into the

conviction and sentence of the appellants, they have challenged the

impugned judgment in the present appeal. The appellant no.1 has,

however, died during pendency of the appeal.

10. Mr. D.P. Dhal, learned Senior Counsel appearing for the

appellants submitted that in fact the specific allegations have been made

in the present appeal against the appellant no.1, who has since expired.

In so far as the appellant no.2, the mother-in-law is concerned, there is

general allegation and swiping remarks are being made by the witnesses.

He further submitted that at the time of the incident in the year 1995 the

appellant no.2 was 55 years old and at present she is aged about 85

years. Therefore, he submits that he would confine his submission

limited to the quantum of sentence. He further submits that keeping in

view the fact that the appellant no.2 is an old lady and the present appeal

is pending since 1996 and she has no criminal antecedents, sentencing

the appellant no.2 to serve out the remaining sentence awarded by the

learned trial court would be harsh. Therefore, he submits that the benefit

of Probation of Offenders Act may be granted to the appellant no.2.

11. Taking into consideration the fact that the appellant no.2 was fifty-

five years old at the time of incident in the year 1995 and now she is

aged about eight-five years old and the fact that she has a clean

antecedent, I am of the considered view that the submission made by the

learned counsel for the appellant deserves merit. The appellant no.2 was

convicted vide judgment and order dated 20.09.1996 and the appeal is

pending since 1996. Much has changed in the life of the appellant no.2 in

between and she has already settled in her life. The appellant has

undergone the ordeal of prolonged trial and pendency of appeal for near

about three decades.

12. In the prevailing scenario, regard being had to the age of the

appellant no.2 and her clean antecedents and the fact that the incident

had taken place in the year 1995, I am of the considered view that the

appellant no.2 is entitled to the benefit of the Probation of Offenders Act

read with Section 360 of Cr.P.C. The case of the appellant no.2 is also

covered by the ratio of the judgment of this Court in the case of Pathani

Parida & another vs. Abhaya Kumar Jagdevmohapatra1 and Dhani @

Dhaneswar Sahu vs. State of Orissa2.

13. In Dhani @ Dhaneswar Sahu (supra), this Court in paragraph-20

of the said judgment, held as under:-

"20. On consideration of the contentions advanced by the learned counsel for the parties, I am of the view that ends of justice would be served if appellant No.1 is dealt with under Section 4 of the P.O. Act, 1958 and is released on probation of good conduct. The sentence imposed on appellant No.1 is hereby set aside and it is directed that he shall be released on a bond of Rs.10,000/- and shall appear before the trial Court and shall receive the sentence on being called upon during the period of one year and shall maintain peace of good behaviour. The personal bond and security bond by appellant No.1 shall be filed before the trial Court within a period of one month from today. The appellants need not surrender to their bail bonds which are discharged in view of the terms contained herein above."

14. In such view of the matter, the present Criminal Appeal in so far

as the conviction is concerned, is turned down. But instead of sentencing

2012 (Supp-II) OLR 469

2007 (Supp.II) OLR 250

the appellant no.2 to suffer imprisonment, this Court directs the appellant

no.2 to be released under Section 4 of the Probation of Offenders Act for

a period of one year on her executing bond of Rs.5,000/- (Rupees Five

Thousand) within one month with one surety for the like amount to

appear and receive the sentence when called upon during such period

and in the meantime, the appellant no.2 shall keep peace and good

behavior and she shall remain under the supervision of the concerned

Probation Officer during the aforementioned period of one year. The