Orissa High Court

Md. Abdul Gani vs State Of Orissa on 18 July, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                        CRA No.224 of 1994

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

Md. Abdul Gani                        .......               Appellant

                                -Versus-

State of Orissa                       .......                 Respondent

For the Appellant : Mr. S. J. Pradhan, Advocate

For the Respondent : Mr. Sarbeswar Behera, Additional Government Advocate

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 03.07.2025 :: Date of Judgment: 18.07.2025

S.S. Mishra, J. The present Criminal Appeal, filed by the appellant

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

and order dated 19.05.1994 passed by the learned Assistant Sessions

Judge, Keonjhar in S.T. Case No.81/21 of 1993, whereby the appellant was found guilty of offence punishable under Section 498-A and 304-B

of I.P.C. Accordingly, the appellant was awarded sentence of eight years

R.I. on the conviction of offence under Section 304-B of I.P.C. However,

the learned trial Court did not award any sentence on the count of

conviction of the accused-appellant of the offence under Section 498-A

of I.P.C.

2. Heard. Mr. Pradhan, learned counsel appearing for the appellant

and Mr. Behera, learned Additional Government Advocate for the State-

respondent.

3. The prosecution story in tersely and briefly is stated as under:-

(a) The appellant, a constable in the Reserve Police at Keonjhar,

married the deceased, Farida, on 04.05.1986 and the marriage having

been solemnized in accordance with Muslim law. Following the

marriage, Farida initially lived with the appellant's family and later

shifted with him to a government quarter in the Reserve Police Line,

Keonjhar.

(b) On 08.11.1992, Farida was admitted to Keonjhar Headquarters

Hospital with extensive injuries on her body. Dr. K.K. Sahu (P.W.6),

who treated her, reported the matter to the Officer-in-Charge, Town

Police Station, Keonjhar. Upon receiving the information, P.W.19, the

then O.I.C., made a station diary entry and issued a requisition to the

medical officer for recording Farida's dying declaration. However, the

dying declaration could not be recorded as the patient was unresponsive.

On the same day it so happened that P.W.10, the brother of the deceased,

visited the appellant's house and found Farida standing outside the

quarters, crying and showing marks of violence on her person. She

informed P.W.10 that she had been starving the entire day and had been

beaten by the appellant. She requested P.W.10 to arrange a rickshaw so

that they could go to the bus stand to take a bus for Kendrapara. A

rickshaw was arranged, and Farida, along with her two children and

P.W.10, proceeded to the bus stand around 8:30 to 9:00 PM.

and forcibly took away Farida's children, abusing her in the process.

Farida then asked P.W.10 to wait at the bus stand while she returned

home to bring back her children. When she did not return by 10:00 PM,

P.W.10 went to the appellant's quarters, where he found his nephew

Kasa (son of Farida) was crying. Kasa informed him that Farida had

been burnt by the appellant and his brother and had been taken to the

hospital. P.W.10 then proceeded to the hospital and found Farida

admitted with burn injuries over her body. That night, he travelled to

Kendrapara and informed his father and uncle at about 5:00 AM in the

next morning. On 09.11.1992, P.W.10, along with his father and uncle

(P.Ws.1 and 3), came to Keonjhar to see Farida, whose condition was

deteriorating. The next morning, Farida was shifted to S.C.B. Medical

College, Cuttack, where she succumbed to the burn injuries and died.

(d) On 13.11.1992, P.W.1, father of the deceased, got a written report

drafted by an advocate of Kendrapara (P.W.12) and sent the same to the

Inspector General of Police, Odisha, with copies to other authorities. In

the report, it was alleged that the appellant had demanded various items

along with some cash as gift, which though was not fulfilled completely

but most of the things including, gold and cash were gifted to Farida.

However, the subsequent demands remained unfulfilled due to the poor

financial condition of P.W.1. Consequently, the appellant had sent Farida

back to her father's house to get the demands fulfilled.

(e) It was further alleged that due to delay in fulfillment of the dowry

demands, the deceased Farida was subjected to regular torture,

starvation, and beatings by her mother-in-law Hayatun Bibi, father-in-

law Md. Ajgar, and sister-in-law. Despite being aware of the torture,

P.W.1 persuaded Farida to return to her matrimonial home in hope of

improvement. He alleged that Farida was eventually burnt by the

appellant for not meeting the dowry demands.

(f) Upon receipt of the petition, a case was registered at Keonjhar

Town P.S. and initiated investigation. The investigation was

subsequently transferred to various officers, who completed the

investigation and submitted the charge-sheet.

4. On the basis of the aforementioned prosecution version, the

appellant stood charged for the offence under Sections 498-A and 304-B

of I.P.C. In order to bring home charges, the prosecution examined 19

witnesses and exhibited 13 documents. Out of which, P.W.1 is the

informant and father of the deceased, P.W.2 is the uncle of the deceased,

P.W.3 is a bus driver who happened to meet the accused at the bus stand

and narrated the message from the accused to the informant for

fulfillment of demands of dowry. P.W.4 is the mediator of the marriage

between the appellant and the deceased. P.W.5 is a witness to the seizure

of Nikahnama. P.Ws.6, 7 and 8 are the doctors, who treated the deceased

during her hospitalization. P.W.9 is the brother of the deceased, who

spoke about the demand of dowry. P.W.10 is also one of the brothers of

the deceased, who communicated the burn news of Farida to her parents.

P.W.11 is the Scientific Officer, Keonjhar. P.W.12 is the advocate who

drafted the F.I.R. P.W.13, the D.S.P. of police who investigated the case.

P.W.14 is the S.I. of the Police. P.W.15 is the son of the deceased and

eye witness to the occurrence. P.W.16 is the A.S.I. of police.P.Ws.17 &

18 are the I.Os. of the case and P.W.19 is the O.I.C. of Town P.S.,

Keonjhar who registered the case on receipt of the F.I.R.

5. The prime documents on the basis of which, the prosecution has

heavily relied upon are two letters purported to have been written by the

deceased to her mother and father on 09.09.1992 and 16.10.1992. Both

the letters have been exhibited as Ext-13/2 and Ext.13/3. Since the letters

were written in Urdu, one witness namely Abdul Rakib Khan was

examined as the Court witness (C.W.1). The said witness has translated

the letters.

6. Mr. Pradhan, learned counsel for the appellant while questioning

the conviction recorded against the appellant under Section 498-A of

I.P.C. on the basis of documentary evidence namely the letters, has

submitted that the letters are purely fabricated letters which were never

despatched by the deceased to her parents. He submitted that although

the F.I.R. is a detailed F.I.R. but P.W.1, the father of the deceased in the

F.I.R. has not mentioned regarding the said letters. P.W.17, the I.O. of

the case in paragraph-6 of his cross-examination has categorically

admitted that the letters seized by him were not posted to the destined

address. He has highlighted the statement of the P.W.17, which reads as

under:-

"6. In connection with the posting of the letters seized I had examined the post-master, Sisiri Kumar Das of the Head-Post Office, Keonjhar. But he opined the date seal do not tally with the date seals used on the letter. So I took permission from the District Magistrate to seize the date seals for further examination by the experts. It is not a fact that I arrested accused Abdul Gani without adequate materials with me towards his guilt.

7. I cannot definitely opine that the letters seized were written by either by the deceased Farida Khatunu or by Khaitunu Bibi."

In view of such statement of P.W.17, the I.O. of the case, the

authenticity and existence of the letters vide Ext.13/2 and Ext.13/3 are

completely doubtful. Mr. Pradhan, learned counsel has also taken me to

various documents and evidence to create a doubt regarding the

allegation pertaining to the offence under Section 498-A of I.P.C.

7. I have carefully gone through the evidence of the witnesses and

also examined the exhibits. In support of the exhibits, the court witness

being C.W.1- Abdul Rakib Khan was examined by the Court. The

testimony of the said witness cannot be doubted. Moreover, to draw the

corroboration to the documentary evidence i.e. Ext.13/2 and Ext.13/3

and the testimony of C.W.1, the evidence of P.W.1 assumes importance.

P.W.1 in his examination-in-chief in paragraphs-7 and 8 has stated as

under:-

"7. During investigation, Police seized two letters one written by my daughter and the other written by the mother of the accused in Oriya and the photograph of the charred body of Farida. One telegram sent by the accused and copy of a newspaper from me and prepared seizure

list. Ext.2 is the seizure list and 2/1 is my signature. I was supplied with a copy of the seizure list also.

8. I produced today the Xerox copies of the telegram and two inland letters written in Urdhu, two inland letters written in Oriya along with the copy of the seizure list in which the seizure of the documents were acknowledged by the Police in respect of the Telegram and the urdhu written letters. The Xerox copy of the Oriya letters are the copies of the letters seized and acknowledged under Ext.2."

8. The said witness (P.W.1) in his testimony has also very

categorically stated that the accused-appellant has been consistently

making demand of dowry particularly demand of a motorcycle and cash.

Since he was unable to arrange the funds to purchase the motorcycle, the

accused has been mentally and physically torturing his daughter

(deceased).The said witness was subjected to extensive cross-

examination by the defence. But nothing could be elucidated which

could be said to be detrimental to the prosecution version. The testimony

of P.W.2, who is the uncle of the deceased is also in the similar line.

Even the testimony of P.W.3, Mir Shale and P.W.4, Mir Hossein are

very relevant for the purpose of drawing corroboration regarding demand

of dowry and torture. P.W.3 in his testimony has stated as under:-

"I know deceased Farida and accused Abdul Gani. As a driver I used to come to Keonjhar driving my truck at times.

10 to 15 days before the death of Farida, I came to Keonjhar and happened to see the accused in the bus-stand. To see me he called and told me to inform his father-in-law that the latter had not kept his promise by supplying the motor cycle and paying the cash. So this was an ultimatum if the demand was not complied with, the accused would finish his daughter. I communicated the information to P.W.1."

Similar was the version of P.W.4, Mir Hossain who stated as

under:-

"I know the accused and deceased Farida. The marriage between the deceased and the accused was fixed on negotiation on the mediator ship of one Monsor Rahaman a paternal uncle of the accused. During the negotiation, it was demanded from the side of the groom and accordingly a cash of Rs.10,000/- wooden furniture, five tolas of gold, two gold rings to the accused. Besides dress was also given to the accused. The marriage was registered by the Karji. I do not remember the date, but the marriage was solemnized in 1986."

9. The overwhelming evidence on record in the form of oral and

documentary leaves no doubt that the appellant has demanded dowry and

since the parents of the deceased could not satisfy the same, the appellant

subjected his wife (deceased) to mentally and physically cruelty.

10. The learned trial Court has meticulously dealt with the evidence

adduced by the prosecution regarding the offence under Section 498-A

of I.P.C. and arrived at the following conclusion:-

"The prosecution relying on these letters tries to prove the mental agony of Farida, because of her being ill-treated in the in-law's house for non-fulfillment of the promised dowry or dowry demanded after marriage. The learned counsel for the prosecution Mr. C. Hota has submitted that these letters amply prove the torture to which Farida had been subjected to after marriage on the demand of dowry. But Mr. Parida, the learned counsel for the defence contends that the genuineness of these letters cannot be accepted in view of the evidence of P.W.17 the investigating officer that during investigation he did not try to ascertain by whose handwriting the said letters were written either by comparison with the admitted hand-writing of Farida or otherwise. P.W.17 further stated that in connection with posting of the aforesaid letters then he had examined the post master of the head post office, Keonjhar and the Post Master opined that the date seals used on the letters did not tally with the date seals used in the post office. Thus, he argued that when there is no certainty that the letters were despatched from Keonjhar and under the hand-writing of the deceased, the same cannot be relied in this case. But in this connection, I would like to mention that the letters written on 21.10.86 (Ext.2/4). 10.8.86 (Ext.2/5) and these two letters Exts.13/2 and Ext.13/3 are very much inconsonance with one another. So, their contents cannot be discarded, because of some of the lacuna and latches on the part of P.W.17. With reference to the evidence of P.W.1, it will be pertinent to note that on 31.7.92, the accused sent a telegram to P.W.1 stating that Farida absconded. To get the telegram, P.W.1 came to Keonjhar, but found Farida in the house of the accused. He wanted to know the reason for sending a false telegram and in reply, the accused told him that with a view to pressing his demand for the motor cycle and cash he had done so. This telegram was seized under Ext.2 and available in the record. The circumstances relating to the said telegram has not been adequately explained by the accused. These facts amply corroborate and prove that Farida had been put to torture and cruelty before her death on demand of dowry. The prosecution's allegation is that on the night of occurrence, the accused put kerosini oil on the person of Farida and set her on fire. This fact has been disproved by the evidence of

P.W15, a six years old son of the accused and D.W.1. According to P.W.15, one evening while he was reading his book, his mother was lighting a kerosent stove. There was a sound and his mother caught fire. According to D.W.1, when he heard the cry raised by Farida, "podigali podigali (I am burnt, I am burnt), he rushed out of his quarters and saw accused Abdul Guni running towards his quarters. He followed accused Guni and both tried to extinguish fire. From their evidence, the prosecution's allegation that P.W.10 heard from P.W.15 that Farida had been burnt by the accused and his brother, is disproved but the facts remains that Farida had been burnt and died with 95% of burns all over her body."

11. I find no reason to disbelieve and defer from the conclusion

arrived at by the learned trial Court regarding the finding of guilt of the

appellant for the offence under Section 498-A of I.P.C. Hence, the

conviction recorded against the appellant for the said offence could be

well sustained on the strength of the evidence procured by the

prosecution.

12. Coming to the charge under Section 304-B of I.P.C., it would be

relevant to deal with the evidence of P.W.1, P.W.6, P.W.15 and P.W17

and the documentary evidence like inquest report etc. P.W.1 in his

evidence has stated that on 09.11.1992 morning one Ismile had informed

him that his daughter had been killed by being burnt. Ismile appears to

have told him that one Tuna, the brother of the appellant held her

daughter and the accused-appellant poured kerosene on her and set fire

on her body. He has also deposed that it is the appellant who has taken

her daughter to the hospital. He has also admitted that the inquest report

endorsed that Farida died in an accidental fire while cooking in the

kerosene stove. The further testimony of the said witness is; when he

reached the hospital he saw his son-in-law (appellant) has been talking to

the doctors and looking after the treatment of his daughter. He went on

deposing that when the condition of his daughter did not improve in

Keonjhar hospital, he along with his son-in-law shifted his daughter to

Cuttack hospital. The testimony of the P.W.15, the minor son of the

deceased and the appellant assumes importance because he is one of the

eye witnesses to the occurrence. In his testimony he has stated as under:-

"2. I have two sisters. I am the only son of my parent. My father was occupying the First floor of a building at Keonjhar. My father's friends working in the police department were residing in the said premises, where we were residing. My mother used to cook food for all of us.

3. Many days back one evening, my sisters were asleep. I was reading my books. My mother was then lighting a kerosene stove. There was a sound and my mother caught fire. She shouted. My father was absent at home. He had gone to attend roll call. To hear my mother's crying, many people from the neighbourhood entered into our house. My father also came running from the roll call. He went to extinguish fire from my mother's body. He got his hands burnt. My

father extinguished fire and then with the help of others took her to hospital. Then my father sent a telephone message to my grand father and grand mother who came from Jajpur."

13. The evidence of P.W.1 and P.W.6 and other materials if conjointly

read and rightly appreciated, the only inference that could be drawn is

that the burn injury sustained by the deceased is nothing but accidental

injury. The said inference is strengthen from the evidence of the doctor

i.e. P.W.6, who in his testimony has categorically stated that the burn

injury sustained by the deceased is accidental. In examination-in-chief,

the doctor (P.W.6) has stated as under:-

"............ The history of the patient as recorded in the bed head ticket by me shows that she was burnt in a stove fire and she was at the time of admission conscious and oriented. She was able to talk. Immediately after the admission I reported the matter to police. Ext.5 is my report to the O.I.C. Town P.S. and Ext.5/1 is my signature. At the time of admission I had examined the patient and subsequently issued injury report on requisition of the police with details of my examination report. During examination of the patient I found extensive burns all over the body including face and head with some intact blust blisters. The body was spoiled with black dust. Perineum was spared from burn. About 90 to 95 per cent burnt. Injury was dangerous and life threatening. Age of injury within one hour at the time of examination."

In the cross-examination, he has stated as under:-

"Injuries found on the person of Abdul Gani is possible if he try to extinguish fire from the body of another. I was examined by the police. I cannot deny to have stated before

the police that at the time of admission the patient stated to me that while cooking in a stove, a kerosene tin was kept nearby and by inadvertence, the kerosene tin fell down and she caught fire (objected to by the learned A.P.P.). During treatment of Farida a Nalcotric Analgesic was administrated on the patient to reduce pain. Narcotic drugs stupefies the brain. Under the spail of narcotric drugs the patient feels drowsy."

14. Defence has also led evidence of one Mukunda Patra, D.W.1, who

in his statement has stated as under:-

"1. I know the accused. He is a co-worker of mine as a reserve police constable. Both of us were putting of in the Govt. Quarter at Reserve Police Line for two years. The accused was staying in the Govt. Quarter along with his wife Farida. During my two years stay with them, I have seen Farida and the accused living a very cordial and peaceful life.

2. Farida was burnt on 8.11.92 after 9.30 P.M. while resting in my house, I heard a cry PODIGALI? PODIGALI? (I am burnt I am burnt). To hear the cry, I rushed out of my quarter and saw accused Abdul Gunny running towards his own quarters. I followed him. Reaching their house, I saw Farida being burnt inside the kitchen, Gunny immediately tried to extinguish fire by putting a blanket on her. But as the blanket was not sufficient I brought one Matress and covered the body of Farida. Fire then subsided. Immediately thereafter, I tried to contact the Reserve Inspector of Police and having failed, I managed to get a police Jeep from the garage and removed Farida to the Hospital. I asked Farida as to how she caught fire. She told me that while lighting a kerosene stove, there was a sudden out-brust of fire in which, she was burnt."

15. The learned trial Court blissfully ignored the overwhelming

evidence rather without dealing with any of the aforementioned evidence

as discussed, gave a vague finding regarding the culpability of the

appellant for the offence under Section 304-B of I.P.C. Without

appreciation of evidence and without any reasoning, the learned trial

Court returned only the following findings regarding the offence under

section 304-B IPC:-

"Since admittedly, the death of deceased Farida has occurred within 7 years of her marriage and it was caused by burns, which is otherwise than under normal circumstance, I am inclined to believe that the initial onus on the prosecution that Farida was subjected cruelty and harassment by the accused in connection with the demand of dowry has been squarely discharged u/S 113-B of the Evidence Act, a presumption is now available to the prosecution for a conclusion that the accused had caused the dowry death of Farida. In the result, therefore, I am inclined to hold that the accused is guilty of the offence U/S 304-B I.P.C. for causing death of Farida and for offence U/S 498-A for causing torture and perpetrating cruelty on her on the demand of dowry. He is therefore, convicted accordingly."

16. In the entire judgment passed by the learned Assistant Sessions

Judge, Keonjhar, nothing is discussed regarding the complicity and

involvement of the appellant regarding the alleged commission of the

offence under Section 304-B of I.P.C. On the appreciation of collective

evidence available on record, the offence under Section 304-B of I.P.C.

cannot be made out because it is eminently forthcoming from the

evidence that the death of the deceased is purely in an accidental death.

Therefore, the offence under Section 304-B of I.P.C. under the aid of

Section 113-B of the Indian Evidence Act, 1872 cannot sustain merely

because the offence under Section 498-A of I.P.C. is made out.

17. It is settled position of law as held by the Hon'ble Supreme Court

in the case of Charan Singh @ Charanjit Singh vrs. The State of

Uttarakhand1 that mere death of a deceased being unnatural in the

matrimonial home within seven years of marriage will not be sufficient

to convict the accused under Section 304-B and 498-A of I.P.C., under

the aid of presumption under Section 113-B of the Indian Evidence Act.

In this regard it will also be appropriate to rely upon the judgment of the

Hon'ble Supreme Court in the case of Nallam Veera Stayanandam v.

Public Prosecutor, High Court of A.P.2, in which it was held thus:

"8. Having noticed the findings of the two courts below in regard to Ext. P-28, we will now consider the dying declaration recorded by PW 11 as per Ext. P-25. This statement came into existence about 10 minutes after Ext. P- 28 was recorded by the Munsif Magistrate. We have already expressed our doubt as to the need for recording this

2023 SCC OnLine 454

(2004) 10 SCC 769

statement when the Munsif Magistrate on a request made by the doctor had already recorded a dying declaration as per Ext. P-28. It has come on record that when PW 11 recorded this statement, he did not take the precautions which the Munsif Magistrate took in sending the relatives of the victim out of the room. He also did not put preliminary questions to find out whether the patient was in a fit state of mind to make the said statement. It is to be noted here that the doctor in Ext. P-25 only states that the patient is conscious. In the said statement, of course, the victim had stated that she set fire to herself being unable to bear the harassment meted out to her by her husband and in-laws. This part of the statement in Ext.

P-25 directly contradicts her earlier statement made to the Munsif Magistrate as per Ext. P-28. Ext. P-28 is a document which exculpates the accused person of an offence under Section 304-B IPC. There is no reason to disbelieve the contents of Ext. P-28 merely because it is not in conformity with the prosecution case as to the harassment meted out to the victim. The courts will have to examine the evidentiary value of Ext. P-28 on its own merit and unless there is material to show that the statement made in Ext. P-28 is inherently improbable and the same was made by the victim either under pressure from an outside source or because of her physical and mental condition, the same cannot be rejected as untrue or unreliable. The Magistrate by the preliminary questions had satisfied himself that the victim was in a fit condition to make the statement. In this background, we find no reason why Ext. P-25 which was recorded by a Head Constable without following the proper procedure should be given preference. The courts below, in our opinion, have fallen in error in rejecting Ext. P-28 and preferring to place reliance on Ext. P-25; more so in the background of the fact that no suggestion whatsoever has been made either to the Munsif Magistrate or to the doctor as to the correctness of Ext. P-28. Per contra, a specific suggestion has been made to PW 11, the Head Constable that he had implicated the accused persons in Ext. P-25 at the instance of the relatives of the deceased and her thumb impression was taken subsequently. Of course, he has denied this suggestion. Be that as it may, the fact that Ext. P-25 came into existence a few minutes after Ext. P-28 and was

recorded without taking necessary precautions by a police officer, we think it more appropriate to place reliance on Ext. P-28 rather than on Ext. P-25. If that be so, the death of the deceased will have to be related to her having suffered burn injuries accidentally and succumbed to the same. We are aware that since death of Aruna Kumari in this case occurred within 3 years of her marriage, a presumption under Section 113-B of the Evidence Act is available to the prosecution, but since we have accepted the contents of Ext. P-28 as true, that presumption stands rebutted by the contents of Ext. P-28. In such a case unless the prosecution is able to establish that the cause of death was not accidental by evidence other than the dying declarations, the prosecution case under Section 304-B IPC as against the appellants must fail.

9. The above finding of ours, however, will not exonerate the appellants of the charge under Section 498-A. We have noticed from the evidence of PWs 1 to 5 and 7 as also from Exts. P-4 to P-9 that the prosecution has established frequent demands for dowry as also harassment of the victim because of the non-payment of dowry. In this regard, we are in agreement with the findings of the two courts below, though we have come to the conclusion that the same finding would not assist the prosecution to base a conviction under Section 304-B. In our opinion the material produced by the prosecution in regard to the demand for dowry and harassment is sufficient to base a conviction under Section 498-A IPC. Hence while allowing this appeal and setting aside the conviction and sentence imposed by the two courts below for an offence punishable under Section 304-B IPC, we confirm the sentence imposed by the courts below for an offence punishable under Section 498-A IPC."

18. Having considered all the relevant aspects of the matter, the

authorities cited above and the evidence of the prosecution, I am of the

opinion that the prosecution has miserably failed to establish the charge

under Section 304-B of I.P.C. against the appellant. Therefore, the

appellant is entitled to an acquittal of the charge under Section 304-B of

I.P.C.

19. Coming to the sentencing part, it is relevant to mention that the

learned trial Court has awarded eight years R.I. on the count of the

offence under Section 304-B of I.P.C. whereas no sentence has been

awarded on the count of the conviction under Section 498-A of I.P.C.

20. Perusal of the proceeding before this Court in the present appeal

particularly the order dated 20.06.1996 indicates that the appellant has