Orissa High Court

Kali Charan Mishra & Anr vs State Of Orissa on 31 July, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                        CRLA No.193 of 1999

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


Kali Charan Mishra & Anr.              .......                   Appellants

                                 -Versus-

State of Orissa                        .......                 Respondent

For the Appellants : Mr. Asok Mohanty, Senior Advocate

For the Respondent : Ms. Suvalaxmi Devi, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 29.07.2025 :: Date of Judgment: 31.07.2025

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

under Sections 374(2) of the Cr. P.C., assailing the judgment and order

dated 06.08.1999 passed by the learned First Additional Sessions Judge,

Puri in Session Trial Case No. 3/134 of 1998, whereby the learned trial

Court has convicted the accused-appellants U/s.498-A/34 of the Indian Penal Code, 1860 & Section 4 of the D.P. Act and sentenced them to

undergo R.I. for three years U/s.498A/34 and further sentenced to

undergo R.I. for two years U/s.4 of the D.P. Act.

2. The prosecution case is that the accused Kali Charan Mishra

married the deceased Manorama on 02.03.1994 as per Hindu rites and

customs. At the time of marriage, the accused demanded ₹12,000 along

with gold ornaments and other articles, but the deceased's father,

P.W.13, could only provide ₹10,000. Thereafter, the deceased was

subjected to constant harassment and physical assault by the accused for

the balance amount of ₹2,000. During her second pregnancy, the demand

was reiterated under the pretext of starting a grocery shop. The deceased

also sent a letter (Ext.5) to her brother, P.W.11, alleging torture, denial

of food, and a threat to her life if the amount was not paid. On

22.11.1997, her family received information about her delivery and

serious illness, but upon reaching, they found that she had already been

cremated. It was alleged that she died under suspicious circumstances

due to ill-treatment and persistent dowry demands. With that, the

accused persons were put to trial under Sections 498-A/304-B/201/34

I.P.C. and U/s.4 of the D.P. Act.

3. The prosecution, in order to substantiate the charges, examined 15

witnesses. The accused persons, in their defence, have completely denied

the allegations of dowry demand and the consequent torture and ill-

treatment of the deceased Manorama. However, the fact of marriage

between the deceased Manorama and the accused Kali Charan Mishra in

the year 1994 stands admitted.

4. The learned trial Court analysed the oral evidence and documents

on record, and have held as under:

"8. Now it is to be seen how far the prosecution has been able to prove Section-498-A, I.P.C. and u/s. 4 of the D. P. Act. In this regard, the evidence of P. W.11, Umesh Chandra Dash who is the brother of the deceased, P. W. 12, Dillip Kumar Dash, an independent witness and P.W. 13; Kamadeb Dash, the father of the deceased are very important coupled with the letter written by the deceased, Ext. 5. On perusal of the evidence of the above witnesses, it is found that at the time of marriage, the accused persons demanded Rs. 12,000/- in cash, three Bharis of gold and other articles, but P.W. 13, Kamadeb Dash could give Rs.10,000/-, gold ornaments and promised to pay the rest of the demand of Rs. 2000/- later on. There is ample evidence on record that soon after the marriage, the accused persons started demanding the rest amount of Rs. 2000/- and due to non-giving of the same started torturing, ill-treating and assaulting the deceased Manorma which

she narrated before her father several times whenever she was going to her house, The evidence of P.W.13 goes to show that on 28.1.96 his son-in-law (accused Kali Charan Mishra) went to their house and wanted to take his daughter back and assaulted her in his presence as she did not return back. The independent witness, P. W.12, Dillip Kumar Das has also stated about demand of dowry and also heard about torture of the deceased from P.W. 13, So far as Ext. 5, the letter written by the deceased is concerned, it is vital piece of evidence since it is not only stated by the father of the deceased, P.W.13, but also by the brother of the deceased, P. W. 11, Umesh Chandra Dash, There is nothing on record as to why Ext. 5 will be disbelieved which indicates that both the accused persons are torturing the deceased for the rest of the dowry amount of Rs. 2000/- and she has also expressed that the accused persons may kill her if the amount is not paid, P. W. 13, the father of the deceased has explained that he had shown the said letter to the police, but the police seized the xerox copy of the same and kept the original, He has denied the fact that Ext. 5 has been prepared for the purpose of this case, thus, the letter, Ext. 5 coupled with the evidence of P.Ws, 11, 12 and 13 clearly indicates that the accused persons had demanded dowry in the marriage of the deceased Manorama and Rs. 10,000/-was paid and P. W. 13 assured to give the rest amount of Rs. 2000-and due to non-giving of the same, the deceased Manorama was being tortured, ill-treated and assulted till his death. It is established principle of law that the relation itself is not a ground to discard the testimony of a witness. Thus, though, P.Ws. 11 and 13 are the relations of the deceased, yet their evidence cannot be discarded solely on that ground, when they are otherwise trust worthy. The prosecution has been able to establish the ingredients of the offence u/s,498-A I. P. C. and u/s 4 of the D. P. Act and has proved the said offence beyond reasonable doubt."

5. The learned court below after analyzing the oral and documentary

evidence placed on record categorically held thus:

"As discussed above at length, I find the accused persons not guilty u/s 304-B/201/34, I. P.C.. I find the Accused persons guilty u/s. 498-A/34, I. P. C. and u/s 4 of the D. P. Act and they are convicted thereunder."

6. Aggrieved by the aforementioned judgment of conviction and

order of sentence passed by the learned 1st Additional Sessions Judge,

Puri, the present Appeal has been preferred by the appellants.

7. Heard Mr. Asok Mohanty, learned Senior Counsel appearing for

the appellants and Ms. Suvalaxmi Devi, the learned Additional Standing

Counsel for the State.

8. Mr. Asok Mohanty, the learned Senior Counsel for the appellant

has strenuously argued the case on merit and taken me to the evidence on

record. After arguing for some time, he submitted that keeping in view

the procrastinated judicial process undergone by the appellants in this

case and the ordeal of trial faced by the appellants; he would rather

confine his argument to the quantum of sentence. He submitted that the

incident relates back to the year 1997. The appellants have undergone

the rigors of trial for about two years. Thereafter, the appeal was

preferred in the year 1999 (13.08.1999). The appeal has been prolonging

to be heard for about 26 years. The appellant No. 1 who was in his early-

thirties then is now in his mid-fifties and the appellant no.2 who was in

her early fifties then now is a septuagenarian, therefore, sending them to

custody for serving out their remaining sentence at this belated stage

would serve no purpose. The learned Counsel further submitted that the

appellants have no criminal antecedents and no other case of a similar

nature or otherwise is stated to be pending against them. Over the years,

they have led a dignified life, integrated well into society, and is

presently leading a settled family life. Incarcerating them after such a

long delay, it is argued, would serve little penological purpose and may

in fact be counter-productive, casting a needless stigma not only upon

them but also upon their family members, especially when there is no

suggestion of any repeat violation or ongoing non-compliance with

regulatory norms. Therefore, in the fitness of situation, the appellants

may be extended the benefit of the Probation of Offenders Act read with

Section 360 Cr.P.C. It is also submitted that the accused have already

undergone about 9 months of custody.

9. Regard being had to the age of the appellants, their societal

position, clean antecedents and the fact that the incident had taken place

in the year 1997, I am of the considered view that both the appellants are

entitled to the benefit of the Probation of Offenders Act read with

Section 360 of Cr.P.C. In the aforesaid conspectus of matter, it will be

apt to rely on the Judgement of Hon'ble Supreme Court in Chellammal

And another V/S State Represented by The Inspector Of Police1, where

the Hon'ble court while deciding a matter relating to similar offences

categorically held thus:

"28. Summing up the legal position, it can be said that while an offender cannot seek an order for grant of probation as a matter of right but having noticed the object that the statutory provisions seek to achieve by grant of probation and the several decisions of this Court on the point of applicability of Section 4 of the Probation Act, we hold that, unless applicability is excluded, in a case where the circumstances stated in subsection (1) of Section 4 of the Probation Act are attracted, the court has no discretion to omit from its consideration release of the offender on probation; on the contrary, a mandatory duty is cast upon the court to consider whether the case before it warrants releasing the offender upon fulfilment of the stated circumstances. The question of grant of probation could be decided either way. In the event, the court in its discretion decides to extend the benefit of probation, it may upon

2025 INSC 540

considering the report of the probation officer impose such conditions as deemed just and proper. However, if the answer be in the negative, it would only be just and proper for the court to record the reasons therefor."

10. 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

the appellants to suffer imprisonment, this Court directs the appellants to

be released under Section 4 of the Probation of Offenders Act for a

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

Thousand) each within one month with one surety each for the like

amount to appear and receive the sentence when called upon during such

period and in the meantime, the appellants shall keep peace and good

behavior and they shall remain under the supervision of the concerned

Probation Officer during the aforementioned period of one year.

11. Accordingly, the CRA is disposed of.

(S.S. Mishra) Judge The High Court of Orissa, Cuttack.