Hemanta Kumar Jena & Ors vs State Of Odisha
2025 Latest Caselaw 2202 Ori

Orissa High Court

Hemanta Kumar Jena & Ors vs State Of Odisha on 8 January, 2025

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

    IN THE HIGH COURT OF ORISSA AT CUTTACK
                   CRA No.133 of 1992
Hemanta Kumar Jena & Ors.      .....  Appellants
                                               Mr. B.C. Parija, Advocate
                              -versus-
State of Odisha                      .....             Respondent
                                                     Mr. P.K. Panda, ASC

                    CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
                     ORDER

08.01.2025

Order No.13

1. This matter is taken up through hybrid mode.

2. Heard Mr. B.C. Parija, learned counsel appearing for the Appellants and Mr. P.K. Panda, learned Addl. Standing Counsel appearing for the Respondents. Instruction provided by the learned Addl. Standing Counsel showing the whereabouts of the Appellants so provided by the IIC, Bhadrak Rural P.S. be kept in record.

3. The present appeal has been filed inter alia challenging Judgment dtd.02.04.1992 so passed by the learned Addl. Sessions Judge, Bhadrak in ST No. 40/29 of 1991. Vide the said Judgment all the three Appellants were convicted and sentenced to undergo imprisonment for a period of seven (7) years for the offence under Sec. 498(A), 304(B) and Sec. 4 of the Dowry Prohibition Act.

4. Learned counsel appearing for the Appellants contended that basing on the prosecution initiated with lodging of the F.I.R. the case originally was registered under Sec. 498(A), 304(B) of the I.P.C.. Subsequently, however charge sheet was submitted for the offences under Sec. 498(A), 304(B) and Sec. 34 of the I.P.C. read

with Sec. 4 of the D.P. Act. After commitment, charge was framed under the aforesaid Sections of Indian Penal Code along with Sec. 4 of D.P. Act against all the Appellants.

4.1. It is contended that even though factum of dowry was not proved through independent witnesses and there was no allegation that prior to such death of the victim she was subjected to torture on the ground of demand of dowry, learned Addl. Sessions Judge without proper appreciation convicted the Appellants for the offences under Sec. 498(A), 304(B) and Sec. 4 of the D.P. Act vide the impugned judgment.

4.2. It is contended that since no evidence was laid through independent witnesses supporting the demand of dowry by the Appellants prior to such death of the victim, conviction of the Petitioners under Sec. 304(B) is not at all maintainable and so also under Sec. 498(A) and Sec. 4 of the D.P. Act. It is accordingly contended that the impugned judgment is not sustainable in the eye of law.

5. Learned Addl. Standing Counsel in support of the impugned conviction and sentence contended that the prosecution in order to prove the case examined as many as 11 nos. of P.Ws. and out of those 11 P.Ws., P.Ws. 2, 3, 4 & 9 clearly corroborated the prosecution allegation with regard to demand of dowry prior to death of the deceased/victim. Statement of P.Ws. 2, 3, 4 & 9 reads as follows:-

"Statement of P.W.2:-

I know all the accused persons in the dock. My deceased sister Sunalata had married the accused Hemanta about four years back. Judhistir Mandal is my eldest brother. During the finalisation of marriage, the accused

persons had demanded a gold necklace, a cot (Palanka) and a almirah. We could not even fulfil the demand even after her marriage. On my visit to the house of deceased sister at Uchhupur she was complaining me about the torture and cruelty on her by the accused persons.

2. My deceased sister and her husband accused Hemanta had come to our house during the time of my marriage. At that time my sister was complaining about the torture and to my cruelty/to my mother for non-fulfilment of dowry demand.

Cross-exmn. by defence counsel-

3. Ten to twelve days prior to the marriage of my sister there was a NIRBANDHA in our house. On that day the date of marriage was fixed. When the bride groom side demanded the articles on the date of NIRBANDHA I was not there but I heard it from my brother Judhistir(P. W.1). I married about one year after the marriage of my deceased sister. I was not examined by the Police. I have told to my friends and villagers about the dowry demand by the bride groom side and nonelese. I had gone to my deceased sister's house four to five times prior to her death. The last time I visited her on the date of Raja Sankranti prior to her death. I stayed in my deceased sister's house for about two to four days when I visited her last. At that time the accused Hemanta was in know Calcutta. Accused Hemanta works at Calcutta, but I do not know where. I cannot say on what date accused Hemanta returned from Calcutta.

4. I heard from my family members about the death of my sister at about 3 A.M. morning who were being informed by three persons. I heard from my family members that the informers were the inhabitants of a nearby village of my deceased sister. I do not know their names. It is not a face that there was no dowry demand from the bride groom side nor my deceased sister was ever tortured.

Statement of P.W.3:-

I know all the accused persons in the dock, and the brothers of the deceased/ Suna (P.Ws.1 and 2). The deceased Sunalata had married accused

Hemanta about four years back. Prior to the marriage, the accused persons demanded a golden necklace, a cot (Palanka) and the almirah. Marriage was performed without the said demanded articles with an assurance to give the articles afterwards. The demanded articles could not be given after the marriage.

2. I heard from one Bhaskar that the deceased Sunalata was being tortured by these accused persons for non-giving of the demanded articles. I heard also from Judhistir Mandal (P.W.1) and Gangadhar Mandal about the torture on the deceased girl by the accused persons for non-giving of promised dowry articles.

Once I had been to the houses of the deceased girl Sunalata while coming from Basudebpur prior to her death. I met the deceased girl in her house, She complained before me about being tortured by the accused persons for non- fulfilling their dowry demand.

Cross-exmn. by defence counsel-

3. P.W.1 is not my relation. Judhistir Mandal (P.W.1) has four sisters including the deceased out of whom two were married in our village. I cannot say exact month and year of marriages of two sisters of Judhistir Mandal who were married prior to the deceased. In those marriages the demands from bride grooms' side were fulfilled. I cannot say the surname of accused Gayadhar who is in the dock. I cannot say his father's name and village. On the date of LAGNADHARA and on the date of marriage of the deceased girl I was present. After about ten days of LAGNADHARA, the marriage was performed. I was called to LAGNADHARA by Judhistir Mandal P.W. 1. On the said day one Purohit, one astrologer along with other villagers were present in the house. The accused Gayadhar and Bhanumati were also there. Two lists were prepared showing the articles given to the deceased girl out of which one/list was kept by either side. I had been to Sabarang to Hrudananda Sahu where I got information that he had gone to Basudebpur. Therefore, I went there to find him.

I went to Jasudebpur from Sabarang by a rickshaw which took half an hour about two years back. The house of Hrudananda is situated at Bania Sahi of

Sabarang village. I had not gone to / Uchhapur on any occasion excepting once when I met the deceased. I talked to her for about 15 minutes as she was a daughter of our village. On that day I did not see any other in laws of the deceased. About two and half years back Bhaskar told me about the torture on the deceased in my village. I have told regarding the torture of the deceased girl after hearing from Bhaskar to several other villagers, but I did not tell to the brothers of the deceased as it is already known to them. I cannot say the distance of Uchhapur from my village/by mile, Koso or kilometre. It is not a fact that am deposing false hood.

Statement of P.W. 4:-

I know all the accused persons in the dock. The accused Hemanta is my cousin brother (paternal). The accused Hemanta had married the deceased girl four years back at village Baladuan. The deceased girl was not pulling on well with the accused Bhanumati. The accused Bhanumati was shouting at the deceased girl for dowry.

2. On the date of death of the girl/ I heard accused Bhanumati shouting at the deceased. I also heard her shouting three days prior to the death of the girl.

Cross-exmn. by defence counsel-

3. Accused Hemanta works in Calcutta in. Corporation. Accused Gayadhar resides in the house of Hemanta and Bhanumati. The relation between Banumati and Gayadhar is foster son and mother.

I am always in visiting term to the house of the accused persons. Accused Bhanumati was shouting at the deceased girl for non-fulfilment of dowry and also domestic affairs. I could hear the shouting once or twice. I heard twice, once in the morning of her death/and three days prior to it. The deceased girl remained normally for about one year after her marriage but subsequent to it she was no more happy for the dowry demand.

4. At the time and date of the death of the deceased the accused Hemanta was very much present in his house.

5. The father of accused Hemanta is dead since five years. A suit for partition was filed before Sub-Judge, Bhadrak by the father of the accused Hemanta against my father. It is not a fact that I am deposing falsely.

To Court- 6. On the date and time of death of the girl these three accused persons were present in the house,

7. I heard at about 10.30 A.M. about the death of the girl after returning from BILO, Accused Gayadhar was present the on the date of the death of the girl on the house of accused Hemanta. I heard from accused Bhanumati who told that the deceased died by hanging herself. I did not see the rope but saw the dead body was wrapped in a cloth.

Statement of P.W. 9:-

I know all the accused persons in the dock. The accused Hemanta is my brother-in-law who had married my sister Sunalata who is since dead. The marriage had taken place four to five years back. During the marriage we gave as per our capability. They demanded one Palanka, one golden necklace and a almirah which we assured to give after marriage. We could not give the articles after marriage. My deceased sister was being tortured by the accused persons for non-giving of those articles. At times I myself and also my brothers visit the house of the accused persons. During my visit my deceased sister had complained before me about the torture and ill-treatment for not giving the demanded articles.

2. The accused Hemanta and his wife (my deceased sister) had come to our village during the time of the marriage of my younger brother Purna Chandra Mandal (PW.2). During that time my deceased sister had asked me to give those demanded articles.

3. One Bhaskar Mallik informed me in a month of Asadh that my sister Sunalata had been killed. On the next morning, I went to the house of accused persons. On my arrival I could hear about the death of my sister Sunalata in the village of accused persons but I could not see her dead body there. I saw the dead body only at Post-mortem house, The accused persons did not inform us about the death of my sister. I reported the matter before the

Police after getting a scribe by a person which was read over and explained to me. I appended my signature on it after understanding the contents in three pages. Ext. 3 is my report. Ext. 3/1, Ext. 3/2 and 3/3 is my signatures.

Cross-exmn. by defence counsel-

4. Bhaskar Mallik and Bhaskar Rout had arranged the marriage. From our side my elder brother Judhistir Mandal (P. W.1) was negotiating. About 15 to 20 days prior to the marriage the accused had persons wax demanded the Palanka, golden necklace and almirah in our villages and in our house. When the articles were demanded I was not there but my brother P.W.1 was.

5. Eight days prior to the marriage LAGNA was sent to the bride- groom's house. Several times I had gone to my sister's house prior to her death and after marriage.

6. I did not report about the torture to any official authorities while my deceased sister was being ill-treated and tortured. I did not tell about it to my co-villagers.

7. I received information about the death of my sister at about 3 Α.Μ. and reached her in-law's village at about 5 to 6 A.M. Again says that he reached the village of accused persons at about 9 AM. I stayed in their village for about half an hour aw but cannot name the persons with whom I talked. Thereafter, I came to Bhadrak Rural Police Station, where I reached after about one hour, Orally I reported the matter before the Police first. I know how to sign in Oriya. The scribe who wrote Ext. 3 is a man of Bhadrak, who was there in the police station while I was orally reporting.

8. I was examined by polices twice on the same day. It is not a fact that I have not mentioned in my F.I.R. that I myself and also my brothers were visiting the house of my deceased sister prior to her death. I do not remember if I have mentioned in the F.I.R. that the accused Hemanta al song with his wife had come to our house during them marriage of Purna Chandra Mandal, P. W.

2. It is not a fact that there was absolutely no demand from the side of bride

groom and my sister had not been tortured. It is not a fact that I am deposing falsehood."

5.1. Placing reliance on the provisions contained under Sec.113-B of the Evidence Act and the evidence laid by P.Ws.2, 3, 4 & 9, learned ASC contended that since demand of dowry was clearly proved prior to the incident against the Appellants and the deceased died due to such demand of dowry, no illegality or irregularity can be found with the impugned judgment.

5.2. However, it is fairly contended that in the meantime as per the instruction provided by the I.I.C., Bhadrak Rural P.S., Appellant No. 3 has died and Appellant No. 2 is on the last part of her life. Appellant No. 1 is also completely bed ridden. It is also contended that by virtue of order dtd.10.11.1992 Appellants are continuing on bail and they have never misused the liberty at any point of time.

6. Learned counsel appearing for the Appellants to the submission of the learned State Counsel, made a further submission that if at all order of conviction and sentence passed against the Appellant Nos. 1 & 2 will be upheld, then benefit of their release under the provisions of P.O. Act be considered.

7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that basing on the prosecution allegation the case in question was registered against the Appellants for the offences under Sec. 498(A), 304(B) of I.P.C. and Sec. 4 of the D.P. Act.

7.1. As found after submission of the charge sheet under Sec. 498- A, 304-B and Sec. 34 of the I.P.C. read with Sec. 4 of the D.P. Act, charge was framed and all the Appellants faced trial for the offences

under Sec. 498(A), 304(B) & 34 of the I.P.C. and Sec. 4 of the D.P. Act in ST No. 46/29 of 1991.

7.2. This Court after going through the evidence of P.Ws.1, 2, 3, 4 & 9 is of the view that prosecution has established the case against the Appellants for the offence under Sec. 498(A), 304(B) of IPC. Therefore, this Court is not inclined to interfere with the impugned order of conviction and sentence. While declining to interfere with the same and considering the age of Appellant No. 2 and the health condition of Appellant No.1 at present and the fact that Appellant Nos. 1 & 2 are continuing on bail since 10.11.1992, this Court directs for their release under provisions of Probation of Offenders Act. This Court accordingly directs Appellant Nos. 1 & 2 to appear before the learned court in seisin within a period of one (1) month from today. On their appearance learned court in seisin shall pass appropriate order for their release under the provisions of P.O. Act. However, since during pendency of the appeal, Appellant No.3 has died, the appeal stands abated as against Appellant No.3.

8. The appeal accordingly stands disposed of.

(BIRAJA PRASANNA SATAPATHY) Judge Sneha

Location: High Court of Orissa, Cuttack