Orissa High Court
Mukesh Behera vs State Of Odisha on 27 January, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA NO.558 OF 2012
An appeal under Section 374 of the Indian Penal Code.
Mukesh Behera :::: Appellant
-:: VERSUS ::-
State of Odisha :::: Respondent
For Appellant :::: Mr. H.S. Mishra, Advocate
For Respondent :::: Mr. A. Tripathy, Addl. Govt. Advocate
.........
PRESENT:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing- 22.11.2024 :: Date of Judgment- 27.01.2025
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Biraja Prasanna Satapathy, J.
The present appeal has been filed challenging order of
conviction and sentence passed against the Appellant in S.T. Case
No. 106/5 of 2010-11 by the learned Addl. Sessions Judge, FTC,
Rourkela. Vide the said Judgment while convicting the Appellant
guilty of the offences under Sec. 498-A, 304-B of the I.P.C., the
Appellant was sentenced to undergo R.I. for a period of 7 years
// 2 //
under Sec. 304-B I.P.C. and R.I. for a period of 2 years and to pay
fine of Rs.2,000/- under Sec. 498-A of the I.P.C. and in default to
undergo further R.I. for a period of two months and R.I. for a period
of six months and to pay a fine of Rs.1,000/- and in default to
undergo further R.I. for one month under Sec. 4 of the Dowry
Prohibition Act. It is also contended that all the sentences are to run
concurrently.
2. Learned counsel appearing for the Appellant contended that the
prosecution case was set into motion basing on the F.I.R. lodged by
one Ranjit Suna-P.W. 6 in Sector-7 P.S. Case No. 34/2010
corresponding to G.R. Case No. 615/2010 in the file of learned
SDJM, Panposh. After commitment of the matter, the present
Appellant along with three (3) other accused persons stood charged
under Sec. 498-A, 304-B, 306/34 of the I.P.C. and Sec. 4 of the D.P.
Act.
2.1. It is contended the prosecution in order to establish its case
examined as many as 13 nos. of witnesses, which includes P.W. 6
the informant, P.W. 10 father of the victim, P.W. 13 the I.O. and
P.W. 12, the Doctor who conducted the post mortem. It is contended
that the prosecution in order to establish the case never examined
// 3 //
any independent witnesses with regard to the allegation made
regarding demand of dowry resulting the death of the deceased, who
happens to the wife of the present Appellant.
2.2. It is contended that the marriage in between the Appellant and
the deceased took place in the year 2005. Though initially basing on
the F.I.R. lodged in the year 2006, a case was initiated against the
present Appellant for the offence under Sec. 498-A, 326, 34 of the
I.P.C. read with Sec. 4 of the D.P. Act, but the same was quashed by
this Court vide order dtd.11.04.2007 in Criminal Misc. Case No.
406/2007.
2.3. It is contended that thereafter alleging commission of offence
under Sec. 498-A, 304-B, 302/34 of I.P.C. read with Sec. 4 of the
D.P. Act, the F.I.R. was lodged resulting initiation of Sector-7 P.S.
Case No. 34/2010. But after completion of investigation charge-
sheet was submitted for the offences under Sec. 498-A, 304-B,
306/34 of the I.P.C. and Sec. 4 of the D.P. Act. The present
Appellant along with three (3) others after being charged for the
offence under Sec. 498-A, 304-B, 306/34 I.P.C. and Sec. 4 of the
D.P. Act faced the trial.
// 4 //
2.4. It is contended that the trial court when did not find any
incriminating material against three of the accused persons, all of
them were acquitted vide the impugned judgment dtd.22.08.2012.
But the present Appellant was convicted for the offences under Sec.
498-A & 304-B of the I.P.C.. The present Appellant however was
acquitted of the offence under Sec. 306 of the I.P.C..
2.5. Learned counsel for the Appellant vehemently contended that
since in order to prove the offence under Sec. 304-B and 498-A of
the I.P.C. the prosecution never examined any independent
witnesses and the statement of P.W. 6, 8 & 10 being contrary to
each other, basing on the statement of such P.Ws. Appellant could
not have been held guilty for the offence under Sec. 304-B/498-A of
the I.P.C..
2.6. It is also contended that in view of the testimony of P.W. 12
who happens to be the doctor and conducted the post mortem, the
Appellant could not have been held guilty of the offence under Sec.
304-B. It is contended that P.W. 12 in his cross examination clearly
admitted that the deceased committed suicide and the injuries found
on the body of the deceased may also be self-inflicted. Statement of
P.W. 12 in his cross-examination reads as follows:-
// 5 //
"I cannot say without the report of viscera by
forensic body as to whether there is poisonous articles in
the stomach.
The material with which the dead body of the
deceased was hanging was strong enough to keep the body
stable on hanging position. Features of asphyxia is
marked by me on the body of the deceased when the
material with which the body was hanging is strong
enough, it would construed „suicide‟ of the deceased.
The injuries found on the body of the deceased may
also be self-inflicted."
2.7. It is also contended that since the doctor who conducted the
post mortem held the case as a case of suicide and the injuries being
self-inflicted, the Appellant on the face of such evidence could not
have been held guilty of the offence under Sec. 304-B of the I.P.C..
2.8. Even though in such nature of allegation, commission of
offence under Sec. 306 of I.P.C. would have been attracted, but no
evidence since was found against the Appellant causing abatement
of suicide of the deceased, the Appellant was acquitted of the
offence under Sec. 306 of the I.P.C..
2.9. It is also contended that the I.O.-P.W. 13 in his cross-
examination also clearly admitted that he has not examined any
neighbourer of the Appellant though there were no. of quarters
adjoining to the house of the Appellant. The I.O. in his cross-
// 6 //
examination also clearly admitted that the room in which the
deceased committed suicide was closed from inside and on the
request of the present Appellant some of the local boys opened the
door forcibly at about 1.15 P.M. on the date of incident. Relevant
extract of the evidence of P.W. 13 so laid in his cross-examination
reads as follows:-
"It revealed from the investigation that the main door
was closed from inside, and at the request of accused Mukesh
some of the local boys opened the same forcibly. About 1.15
PM on the date of incident the door was forcibly opened.
xxx xxx xxx
On 19.4.2010 I came to know that accused Mukesh
was working in RSP, RKl from the informant. I have not gone
to the department of RSP where the accused Mukesh was
working in order to verify his conduct. It is not a fact that
accused Mukesh came from his office on 19.4.2010 at 12.2
P.M. having obtained the gate pass receiving the information
of death of his wife.
xxx xxx xxx
I have not examined any neighbor of the informant.
There were number of quarters adjacent to the house of
informant."
2.10. It is also contended that though the concerned doctor advised
to send the viscera report for chemical examination, but the same
// 7 //
was never dispatched to the forensic laboratory for chemical
examination. Evidence of P.W. 13 in that regard reads as follows:-
"As per the advise of the Doctor visera was sent for chemical
examination. There is no record to show that the viesera has
been dispatched for chemical examination."
2.11. It is also contended that P.W. 13 in his cross-examination
disproved the stand taken by P.W. 6 regarding demand of dowry and
allegation of torture to the victim. Evidence of P.W. 13 so laid in his
cross-examination reads as follows:-
"PW-6 did not state before me that the deceased had made a
complaint that her treatment was not taken up by the accused
persons, and that he did not state before that accused persons
at the throat of the deceased and that the deceased was
admitted into the hospital, and that his sister was not staying
with accused Mukesh at Jharsuguda. P.W. 6 did not state
before me that his mother had given cash of Rs.50,000/- to
Rs.60,000/- to accused Mukesh through his deceased sister and
that all the accused persons were assaulting his sister. P.W-6
did not state before that accused Mukesh had forcibly taken
away the deceased from the computer class, but stated that he
had taken her (BHAGEI KI NEI GALA). P.W-6 did not state to
me that parents of accused Mukesh by joining hand took away
his sister by quarreling and were abusing her, for which
accused Mukesh lost his job. He did not speak before me that 4
to 6 days prior to the incident the accused persons were
assaulting to his sister."
// 8 //
2.12. It is also contended that since the doctor who conducted the
post mortem came to a clear finding that the deceased committed
suicide and the injuries available in her body are self-inflicted, there
was no occasion to held the Appellant guilty for the offence under
Sec. 304-B and Sec. 498-A of the I.P.C. It is also contended that
presumption of demand of dowry as provided under Sec.13-B of the
Evidence Act cannot be stated to have been proved in the present
case.
2.13. It is also contended that merely because the deceased died
under unnatural circumstances in her matrimonial home within 7
years of marriage, it is not sufficient to convict the
Appellant/husband for such dowry death. View of the Hon'ble Apex
Court in Para 23 of the decision in the case of Charan Singh @
Charanjit Singh Vs. State of Uttarakhand, 2003 LiveLaw SC 341
reads as follows:-
"23. On a collective appreciation of the evidence led by
the prosecution, we are of the considered view that the
prerequisites to raise presumption under Section 304B
IPC and Section 113B of the Indian Evidence Act having
not been fulfilled, the conviction of the appellant cannot be
justified. Mere death of the deceased being unnatural in
the matrimonial home within seven years of marriage will
not be sufficient to convict the accused under Section 3048
and 498A IPC. The cause of death as such is not known."
// 9 //
2.14. It is also contended that D.Ws.1 & 2 who happens to be the
neighbourers of the Appellant clearly testified that the Appellant
was living a happy marital life with the deceased and they have
never heard of demand of dowry made by the Appellant from the
deceased or her family.
2.15. Making all these submissions learned counsel for the
Appellant contended that the impugned order of conviction and
sentence passed against the Appellant is not sustainable in the eye of
law. It is also contended that by virtue of the order passed by this
Court on 17.05.2013 though the Appellant is continuing on bail, but
at no point of time he has violated any of the terms and condition. It
is also contended that the Appellant was inside custody for more
than 2 years during trial and after the order of conviction and
sentence passed on 22.08.2012.
3. Mr. A. Tripathy, learned Addl. Govt. Advocate on the other hand
while supporting the impugned order of conviction and sentence,
contended that in view of the statement of P.W. 6 who happens to be
the informant/brother of the deceased and evidence of P.W. 8, 9 &
10, the Appellant has been rightly held guilty for the offence under
Sec. 304-B, 498-A of the I.P.C..
// 10 //
3.1. It is contended that P.W. 6 in his evidence clearly proved the
demand of dowry made by the accused-Appellant after the marriage
in the year 2005. Evidence of P.W. 6 with regard to demand of
dowry reads as follows:-
"When my sister went to attend her class in computer Institute
she was forcibly taken away by Mukesh and the accused
persons asked her to get Rs. 2 lakhs from our house so that
accused Mukesh would get a job in the Sponge Iron at
Jharsuguda. My mother thereafter was compelled to pay Rs. 1
lakh to accused Mukesh in obedience to the demand done by
him. My sister also telling me that the accused Mukesh not an
employment at Jharsuguda Sponge Iron Company and both of
them were staying together at Jharsuguda. Having stayed
there for about one year both of them again came to Rourkela
and constructed a house at Sector-6 and stayed there. My
sister was also asked by accused Mukesh to get some money
for construction of a house at Rourkela and in response to that
my mother had paid probably fifty to sixty thousand rupees to
accused Mukesh for constructing a house."
3.2. It is also contended that P.W. 9 who happens to be the sister-in-
law of the deceased also proved the allegation regarding demand of
dowry by the present Appellant. Statement of P.W. 9 supporting the
demand of dowry reads as follows:-
"As there was demand of money by accused Mukesh, myself
and my mother in law had gone to Jharsuguda and paid
// 11 //
Rs.1,00,000/- to accused Mukesh through our sister in law.
Then they stayed in Qrs. No. 10, Golghar, Sector-5 without
parents in law of deceased. After staying in there house, the
deceased had also came to our house and disclosed that she
was being harassed by the accused Mukesh."
3.3. Similarly, relying on the statement of P.W. 10 who happens to
be the father of the deceased, it is contended that the said P.W. also
proved the demand of dowry against the Appellant. Statement of
P.W. 10 reads as follows:-
"Few days there my daughter came to our house and
disclosed accused threatening and assaulting her and
demanding Rs. 1,50,000/- for arranging a service. But being
compelled I paid Rs.1,00,000/- to her for the accused
Mukesh. Again my daughter came after one month after
payment of Rs.1 lakh, and further demanded some money for
construction of house for which we again paid Rs.60,000/- to
her. She made over the said money to accused Mukesh."
3.4. Similarly, reliance was placed on the evidence of P.W. 11 who
happens to be the sister of the deceased. Evidence of P.W. 11 with
regard to demand of dowry reads as follows:-
"At the time of marriage the parents and brother accused
Mukesh demanded dowry and as per the capacity dowry
articles were given to accused Mukesh. Sometimes thereafter
accused used to send the deceased to our house for money,
// 12 //
and when the same was not complied she was being assaulted
by accused Mukesh."
3.5. Placing reliance on the evidence of P.W. 6, 8, 9, 10 & 11,
learned Addl. Govt. Advocate contended that since the deceased
died under unnatural circumstances within 7 years of her marriage
and demand of dowry prior to such death of the deceased having
been proved by the prosecution, the Appellant has been rightly
convicted and sentenced under Sec. 498-A/304-B of the I.P.C.. It is
accordingly contended that no interference is called for.
4. Having heard learned counsel appearing for the Parties and
considering the submission made, this Court finds that the
prosecution case was set in motion with lodging of the F.I.R. for the
offences under Sec. 498-A, 304-B, 302/34 of the I.P.C. and Sec. 4 of
the D.P. Act. But after completion of the investigation charge sheet
was filed against the present Appellant and three other accused
persons for the offences under Sec. 498-A, 304-B, 306/34 of the
I.P.C. and Sec. 4 of the D.P. Act. Accordingly, the present Appellant
and three other accused persons after being charged for the offences
under Sec. 498-A, 304-B, 306/34 of the I.P.C. and Sec. 4 of the D.P.
Act faced the trial in S.T. Case No. 106/5 of 2010-11 in the file of
// 13 //
learned Addl. Sessions Judge, FTC, Rourkela. As found the
prosecution in order to prove the case examined as many as 13 nos.
of witnesses and the defence examined 3 nos. of witnesses.
4.1. Learned trial court after going through the evidence so laid
acquitted the other three accused persons of the offences under Sec.
498-A, 304-B and Sec. 4 of the D.P. Act. All the three other accused
persons including the present Appellant were also acquitted from the
offence under Sec. 306 of the I.P.C.. But the present Appellant
basing on the available materials was convicted and sentenced for
the offences under Sec. 304-B and Sec. 498-A of the I.P.C.
4.2. This Court after going through the materials placed, finds that
even though the deceased died within 7 years of her marriage with
the Appellant, but in view of the evidence laid by the Doctor-P.W.
12 and in view of the fact that no independent witness has been
examined by the prosecution to prove the allegation against the
Appellant regarding demand of dowry and consequential death of
the deceased under unnatural circumstances, it is the view of this
Court that conviction and sentence of the Appellant for the offence
under Sec. 304-B/498-A of the I.P.C. is not sustainable in the eye of
law.
// 14 //
4.3. Since the prosecution could not prove the offence under Sec.
306 of the I.P.C. and such acquittal of the Appellant under Sec. 306
of the I.P.C. being not under challenge, this Court placing reliance
on the decision in the case of Charan Singh as cited (supra) is of
the view that Appellant has been wrongly convicted and sentenced
to undergo the imprisonment of the offence under Sec. 304-B and
498-A of the I.P.C. vide the impugned judgment dtd.22.08.2012.
Therefore, this Court is inclined to quash the order of conviction and
sentence so passed against the Appellant. While quashing the same,
this Court directs the Appellant to be discharged from the bail bond.
5. The appeal accordingly stands allowed.
(BIRAJA PRASANNA SATAPATHY)
Judge
Orissa High Court, Cuttack
The 27th January, 2025/Sneha
Location: High Court of Orissa, Cuttack
