Arjun Malik vs State Of Odisha
2025 Latest Caselaw 1917 Ori

Orissa High Court

Arjun Malik vs State Of Odisha on 31 July, 2025

         THE HIGH COURT OF ORISSA AT CUTTACK

                        CRLA No.111 of 2005

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


Arjun Malik                       .......                    Appellant

                                 -Versus-

State of Odisha                       .......                  Respondent

For the Appellant : Mr. Prasanna Kumar Mishra, Advocate

For the Respondent : Ms. Subhalaxmi Devi, ASC

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 15.07.2025 :: Date of Judgment: 31.07.2025

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

under Sections 374 of the Cr. P.C., is directed against the judgment and

order dated 04.03.2005 passed by the learned Sessions Judge, Keonjhar

in S.T. Case No.160 of 2003, whereby the learned trial Court while

acquitting other accused persons of all the charges and also acquitting the sole appellant in the present case of the charges under Section

302/304B/176/201/34 of I.P.C. read with Section 4 of the D.P. Act, has

convicted the appellant only for the offence under Section 498-A of

I.P.C. On that count, the appellant has been sentenced to undergo R.I. for

two years.

2. Heard Mr. Prasanna Kumar Mishra, learned counsel for the

appellant and Ms. Subhalaxmi Devi, learned Additional Standing

Counsel for the State.

3. The criminal law was set to motion against the accused person on

the basis of an F.I.R. lodged by one Krushna Chandra Dash, the father of

the deceased inter alia alleging therein that his daughter Kabita Dash

(deceased) was given in marriage with the appellant Arjun Mallik and at

the time of marriage, as per the demand Rs.15,000/- and other articles

were given to the accused persons. It is further alleged that after the

marriage, the accused persons demanded further money as dowry and

which the informant could not fulfill, as a result of which, the deceased

was ill-treated by the accused persons. It is further case of the

prosecution that on 20.01.2002, one Sridhar Mallik gave information to

the informant and his family members that their daughter has died and

on receiving such information, the informant along with others went to

the house of the accused persons and enquired about the dead body of

the deceased. Surprisingly, the accused persons told that the dead body

has already been cremated and they have assigned the reasons of death to

be natural.

4. On the basis of such F.I.R., the investigation was carried out and

the police filed charge-sheet for the alleged commission of offences

punishable under Sections 498-A/304-B/302/201/176/201/34 of I.P.C.

read with Section 4 of the D.P. Act. Accordingly, the learned trial Court

framed charge against the appellant and other four family members of

the appellant for the charges as mentioned above.

5. The accused persons took a stance of denial. The accused person

examined one Laxmidhar Mallick, who was cited as a prosecution

witness; however, the prosecution did not produce him. It is also

noteworthy to mention that in the charge-sheet, as many as 17 witnesses

were cited, out of whom, the prosecution has chosen only three witnesses

and not examined many of the witnesses including the Investigating

Officer. Out of them, P.W.1 is the mother of the deceased, P.W.2 is the

cousin of the deceased and P.W.3 is the brother of the deceased. The

prosecution has relied upon the F.I.R. which has been exhibited. In this

case, the Investigating Officer has not been examined.

6. Basing on the oral testimony of the aforementioned three

witnesses, the learned trial Court has arrived at a conclusion that the

prosecution has miserably failed to prove the guilty of all the accused

persons in so far as the offences under Section 302/304-B/176/201/34 of

I.P.C. read with Section 4 of the D.P. Act and acquitted all the accused

persons except the appellant who was found guilty of offence punishable

under Section 498-A of the I.P.C. On that count, the learned trial Court

has awarded the sentence of two years.

7. Being aggrieved by the judgment of conviction and order of

sentence passed by the learned Sessions Judge, Keonjhar, the present

appeal has been preferred by the sole appellant, who was the husband of

the deceased.

8. Mr. Mishra, learned counsel for the appellant has submitted that

this is a case of no evidence. The three witnesses those who are directly

related with the deceased being interested witnesses have deposed to

support the prosecution case, however, the contradictions in their

evidence are writ large. Therefore, the learned trial Court has discarded

their evidence which would establish from the fact that by not relying

upon the testimony of these three witnesses, all the accused persons have

been acquitted. He further submitted that after having acquitted the

appellant for offence under Section 4 of the D.P. Act, the fact of demand

of dowry has not been believed and in the same breathe the learned trial

Court has stated that cruelty was meted out to the deceased by the

appellant for want of dowry.

9. Mr. Mishra, learned counsel for the appellant further submitted

that the prosecution in the present case has deliberately withheld the vital

witnesses cited in the charge-sheet. One out of them, have been

examined by the defence to demolish the prosecution case, which was

not well appreciated by the learned trial Court. The learned trial Court

has only gone on the evidence of three witnesses those who are

interested and related to the deceased. He further submitted that although

non-examination of the Investigation Officer is not fatal to the

prosecution, however, if non-examination of the I.O. lead to cause

prejudice to the accused, in that case, the conclusion drawn by the

learned trial Court may not sustain. Mr. Mishra, has also extensively

read out the evidence of three witnesses and pointed out the

contradictions in their evidence.

10. To counter the submission made by Mr. Mishra, learned counsel

for the appellant, Ms. Subhalaxmi Devi, learned Additional Standing

Counsel for the State submitted that for the purpose of establishing the

offence under Section 498-A of the I.P.C., there are two basic

ingredients required to be fulfilled, those are:-

(a) the accused must be a husband or relative of the husband of the

women concerned and

(b) that the person had subjected such women to cruelty.

In this case, upon appreciating the evidence on record, the trial

Court has rightly concluded that the accused-appellant, being the

husband of the deceased, had subjected his wife to immense physical and

mental cruelty and has accordingly convicted him for the said offence as

the ingredients stood satisfied through the evidence.

11. Ms. Subhalaxmi Devi, learned counsel for the State has cited that

enough material has come on record to draw the conclusion that the

appellant was not only harassing the deceased but also was involved with

some other women. That being the evidence, the case of the prosecution

is directly covered by the judgment in the case of Laxman Ram Mane

vrs. State of Maharashtra reported in (2010) 13 SCC 125 wherein the

Hon'ble Supreme Court has held that in concerning to Section 498-A

and 306 of I.P.C. about the mental torture in the form of illicit

relationship of a married man with another woman amounting to cruelty

under Section 498-A of I.P.C.

12. On the contrary, Mr. Mishra, learned counsel for the appellant has

relied upon the judgment of the Hon'ble Supreme Court in the case of

State of Andhra Pradesh vrs. M. Madhusudan Rao reported in (2008)

15 SCC 582. In the said judgment, the Hon'ble Supreme Court has

observed that harassment simpliciter is not cruelty. Only when such

harassment is committed for the purpose of coercing a woman or any

other person to meet an unlawful demand or property etc. alone would

amount to cruelty punishable under Section 498-A of I.P.C. Therefore,

Mr. Mishra, submitted that since the learned trial Court has disbelieved

that there was any demand of dowry, therefore, mere harassment

simpliciter would not attract the offence under Section 498-A of I.P.C. in

absence of demand of dowry.

13. To counter the argument of Mr. Mishra, learned counsel for the

appellant that non-examination of the I.O. of the present case is fatal to

the prosecution, Ms. Subhalaxmi Devi, learned counsel for the State has

relied upon the following judgments:-

(a) Bahadur Naik vrs. The State of Bihar, (2000) 9 SCC 153

(b) Raj Kishore Jha vrs. The State of Bihar and others, (2003) 11 SCC 519.

(c) Baldev Singh vrs. The State of Haryana, (2015) 17 SCC 554.

(d) Gandipally Srinivas vrs. The State of A.P. (2005) 13 SCC 712

14. I have extensively gone through the evidence brought on record by

the prosecution also taken into consideration the submission made by

both the parties. In the light of the same, perused the impugned judgment

dated 04.03.2005. The findings recorded by the learned trial Court in so

far as acquittal of all the accused persons of all the charges are

concerned, is justified. At the same time, the learned trial Court has

rightly appreciated the evidence of all the three witnesses to arrive at a

finding that the appellant is found guilty of offence under Section 498-A

of I.P.C. Paragraph-8 of the judgment records the reasoning for arriving

at the conclusion that the appellant is guilty for offence under Section

498-A of I.P.C., which reads as under:-

"8. P.Ws.1, 2 and 3 all deposed that they heard from the deceased that she was ill-treated by the accused. It was brought out from P.W.2 in the cross- examination that Arjun was assaulting to the deceased and it was brought out from the evidence of P.W.1 in her cross-examination that whenever the deceased wanted to come to her house, accused Arjun prevented her stating that she would not go to her parents' house unless the dowry is paid and P.W.3 deposed that Arjun assaulted Kabita in his presence and he had kept relation with other woman. Such evidence remains unshaken. The evidence of P.W.1 in cross-examination revealed that the deceased was not allowed to visit her parents house and the evidence of P.W.3 revealed that Arjun had kept relation with others. In the decision reported in 1997-Criminal Law Journal (M.P.) Page 1005-Anant Vrs. The State of M.P., their lordships held that "she was not even permitted to talk to her close relatives over phone and

to visit her mother, clearly therefore she was subjected to continuous harassment and torture, both mentally and physically which certainly amounts to cruelty." Cruelty is defined U/S. 498-A I.P.C. is as follows:-

(a) Any willful conduct which is of such a nature as is likely to drive the women to commit suicide or to cause grave injury, or danger to life, limb or health (whether mental or physical) of the woman; or

(b) Harassment of a woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand."

In the decision reported in (2001) 21 OCR (S.C.) 28- Aravid Singh Vrs. The State of Bihar, their lordships held that "the word cruelty in common English acceptation donates a state of conduct which is painful and distressing to another." Keeping relation with another woman by Arjun, the husband and assaulting the deceased and not allowing to visit her parents undoubtedly amounts to cruelty and the evidence shows that Arjun being the husband did so and he is responsible U/S 498-A I.P.C. Since the evidence regarding demand of dowry is not satisfactory, the evidence is not sufficient to attract Section 304-B I.P.C."

15. The findings so recorded can be justified from the evidence

of the witnesses. All the three witnesses in unison have deposed

before the Court that it is the appellant who has been consistently

harassing the deceased for want of dowry. In nutshell, P.W.1 in her

deposition has stated as under:-

"......The accused demanded Rs.20000/-, one BPL Colour T.V., one Bhari of gold chain and a ring. We paid Rs.15000/- and the colour T.V. and one Tola of gold and promised to pay the rest later on. After marriage also the accused demanded Rs.5000/-, but we unable to pay the same. My daughter informed me that her husband was abusing her and assaulting her for Rs.5000/-. My daughter and her husband visited once to my house and his parents visited once. Thereafter, my daughter was not allowed to go to my house unless the dowry amount of Rs.5000/- is paid. While I was at my elder daughter's house, Kabita expired at the house of the accused. I had not gone to the house of the accused persons. The accused persons told that my daughter committed suicide by hanging herself."

16. P.W.2 who is the brother of the deceased also supported the

evidence deposed by the P.W.1 and in his testimony he has stated as

under:-

"Kabita is my sister. Krushna is my uncle. I know all the accused. Kabita married to Arjuna. I attended that marriage. The demanded Rs.20,000/-, T.V., and other articles as dowry Rs.15000/- was paid at the time of marriage and promised to pay the rest later on. I heard that Kabita was ill-treated and assaulted as that Rs.5000/- was not paid. On 20th January, 2002 brother-in-law of Arjuna told us that on 19.01.2002

Kabita committed suicide. We went to the house of the accused persons. By that time they cremated the dead body. Being questioned by us, the accused told that they do not like to keep the dead body, so they cremated the same. Out of suspicion we informed at the P.S......

2. I was practicing at Bhadrak at a distance of 12 K.Ms. from Odanga. After marriage I saw Kabita once and Arjuna twice in the house of Krushna. Being question by me, Kabita told me that as the dowry amount was not paid, Arjuna was ill-treating and assaulting her. The mother of Kabita was present at that time. By hearing the cry, I went to the house of Krushna. After I heard about the dowry and ill- treatment from Kabita I had not seen Arjuna. 6 to 7 months after the marriage, Kabita told me about the ill-treatment."

17. P.W.3 is also brother of the deceased, who corroborated the

statement made by P.W.1 and P.W.2 and stated that the deceased told

him that she was subjected to ill-treatment due to non-payment of the

demanded dowry of Rs.5000/- which was promised by the informant.

P.W.3 in his evidence has stated as under:-

"...... After marriage, Kabita came twice to our house. Kabita told at my house that she was ill-treated as promised demand of Rs.5000/- was not paid. I went to the house of Kabita on Raja festival day. I stayed there for 1 or 2 days. Kabita told me that Arjuna was assaulting her and Arjuna kept relation with other woman, so there was quarrel between them. I heard

Arjuna threatening Kabita. One month thereafter Kabita expired......."

18. Therefore, the evidence of all the three witnesses if read

conjointly, the ingredient of the offence under Section 498-A of

I.P.C. fits into it. Therefore, the findings of the learned trial Court in

that regard as reproduced above cannot be found fault with. In that

view of the matter, I affirm the conviction recorded by the learned

Court against the appellant for the offence under Section 498-A of

I.P.C.

19. Mr. Mishra, learned counsel for the appellant has pointed

out that the appellant was taken into custody on 22.01.2002.

Although, he was granted bail on 21.03.2002, however, he was

released from the custody on 26.03.2002. Therefore, the appellant has

already undergone a custody period of about two months. The

appellant was about 24 years of age at the time of commission of

offence i.e. in the year 2002. At present he is in mid-forties, leading a

respectful life along with his family. The learned Counsel

additionally submits that the appellant has no criminal antecedents

and no other case of a similar nature or otherwise is stated to be

pending against him. Over the years, he has led a dignified life,

integrated well into society, and is presently leading a settled family

life. Incarcerating him 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 him but also

upon his family members, especially when there is no suggestion of

any repeat violation or ongoing non-compliance with regulatory

norms. It is also stated that the appellant has also undergone one

month in custody. Therefore, in the fitness of situation, the appellant

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

Section 360 Cr. P.C.

20. Regard being had to the procastinated judicial process

undergone, his societal position, clean antecedents and the fact that

the incident had taken place in the year 2002, I am of the considered

view that the appellant is entitled to the benefit of the Probation of

Offenders Act read with Section 360 of Cr.P.C. Additionally, the case

of the appellant is also squarely covered by ratio of the judgment of

this Court in the case of Pathani Parida & another vs. Abhaya

Kumar Jagdevmohapatra reported in 2012 (Supp-II) OLR 469.

21. 498-A of I.P.C. invites the sentence which may extend to

three years and shall also be liable to pay a fine. Although, the

learned trial Court has sentenced the appellant to undergo R.I. for a

period of two years, however, has not imposed any fine. Therefore, I

modify the sentence and in so far as the imprisonment part is

concerned, I grant the benefit of Probation of Offenders Act to the

appellant. However, at the same time, the appellant is awarded a fine

of Rs.5,000/- (rupees five thousand), in default to undergo further R.I.

for two months.

22. 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 appellant to suffer imprisonment, this Court directs the

appellant to be released under Section 4 of the Probation of Offenders

Act for a period of six months on his 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 of and in the meantime, the appellant shall keep

peace and good behavior and he shall remain under the supervision of

the concerned Probation Officer during the aforementioned period of

six months. Additionally a fine of Rs.5000/- shall be paid by the

appellant which shall be disbursed to the mother of the deceased

(P.W.1) as per the section 357 of Cr.P.C, in default of which the

appellant is sentenced to undergo R.I for 3 months.

23. With the above observation, the CRLA is accordingly

disposed of.

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

Dated the 31st of July 2025/ Swarna

Designation: Senior Stenographer

Location: High Court of Orissa