Babuli Barik vs State Of Odisha
2025 Latest Caselaw 5836 Ori

Orissa High Court

Babuli Barik vs State Of Odisha on 30 May, 2025

              IN THE HIGH COURT OF ORISSA AT CUTTACK
                        CRA No.69 of 1998

        Arising out of the judgment and order dated 23.03.1998 passed by
        the learned Addl. Sessions Judge, Bhubaneswar in S.T. Case
        No.7/5/407 of 1996/95.


              1.Babuli Barik
              2.Ichha Barik (dead)                        .... Appellants


                                          -versus-
              State of Odisha                             .... Respondent

        Advocates appeared in this case through Hybrid Mode :

                 For Appellants                 : Mr.G.N.Mishra, Advocate


                For Respondent                  : Mr.M.R.Mishra, ASC

        CORAM:
           HONOURABLE MISS JUSTICE SAVITRI RATHO

     ..................................................................................

Date of Judgment : 30.05.2025 ...................................................................................

Savitri Ratho, J. This appeal has been filed challenging the judgment

dated 23.03.1998 passed by the learned Addl. Sessions Judge,

Bhubaneswar in S.T. Case No.7/5/407 of 1996/95 convicting the

appellants, Babuli Barik and Ichha Barik for commission of offences

punishable under Section 4 of the D.P. Act and sentence to undergo S.I.

for one year. By the said judgment, the co-accused-Chandramani Barik,

Sarat @ Dukhisyam Barik, Prahallad Barik, Rabi @ Rabindra Das and

Dr.Pramod Kishore Samantray who faced different charges have been

acquitted. No appeal has been filed by the Government challenging their

acquittal.

Appellant No.1 Babuli Barik the husband and appellant no.2

Ichha Barik was the mother-in-law of the deceased Santilata. It has been

stated at the bar that appellant no.2 Ichha Barik has died during pendency

of the appeal and hence the Criminal Appeal abets so far as she is

concerned.

PROSECUTION CASE

2. The prosecution case in brief is that appellant No.l-Babuli

Barik is the son of appellant No.2-Ichha Barik and Markanda Barik since

dead and so the case against him has abated. Babuli Barik married to

Santilata Barik on 11.03.1987. before the marriage, the Appellants and

Markanda Barik demanded cash of Rs.35,000/-, one godrej almirah and

other articles as dowry. The parents of the deceased paid Rs.30.000/-

before marriage and promised to pay the balance dowry amount of

Rs.5,000/- and a godrej almirah after marriage. The appellant and

Markanda Barik tortured the deceased Santi both physically and mentally

for non-payment of the balance dowry amount and non-delivery of

Godrej almirah. In this background, the deceased Santi suddenly died in

the night of 7/8.3.1991 while staying in the house of the appellants and

Markanda Barik. The appellants along with other co-accused burnt her

dead body in the same night without informing her parents and relations

living in their village. The co-accused, Dr.Pramod Kishore Samantray

granted a false medical certificate showing that the deceased was

suffering from diarrhoea and was under treatment at the relevant time.

Dusasan Barlk (P.W.7) who is a relation of the deceased and neighbour

of the co-accused on 08.03.1991 lodged a written report (Ext.4) at

Khandagiri P.S. alleging the death of the deceased due to quarrel

between her and appellant No.2-Ichha Barik. The Inspector-in-

charge of the said report registered U.D. Case No.05 of 1991 and

directed Pramod Kumar Sahu (P.W.11), the Assistant Sub-Inspector (in

short „A.S.I.‟) to take up the enquiry. The A.S.I. after conducting enquiry

lodged F.I.R. (Ext.2/1) at Khandagiri Police Station on 25.5.91 and a

case u/s 498-A/34,I.P.C. was registered. Investigation was conducted and

in due course, charge sheet under Sections 498-A, 302, 34 of IPC and

Section 4 of the D.P. Act was placed against the appellants, Markanda

Barik (who had died), Chandramani Barik Sarat @ Dukhisyam Barik,

Prahallad Barik and Rabi @ Rabindra Das. The appellants and co-

accused (except Markanda Barik) faced their trial on the above charges

after commitment of the case to the Court of Sessions.

DEFENCE PLEA

3. The accused persons denied their complicity with the

offences in question and pleaded false implication. The appellants in

their respective statements under Section 313 Cr.P.C. that appellant No.1

married deceased Santi on 11.03.1987 and she died in their house on

07.03.1991. They pleaded that she died due to diarrhea and her dead

body was burnt in presence of her parents.

WITNESSES

4. The prosecution examined 11 witnesses in the trial. P.W.4-

Gavarani Basantara, P.W.6-Sachidananda Basantara, P.W.5-Padma

Charan Basantara and P.W.3-Sobha Barik are the mother, father, brother

and aunt (mother‟s sister) respectively, of deceased Santi. P.W.7-

Dusasan Barik is the husband of P.W.3 and P.W.8-Pramod Kumar Barik

is the son of P.W.7. P.W.2-Brajabandhu Lenka and P.Ws.3, 4, 5, 6 and 7

are the witnesses to the demand of dowry, torture etc. whereas P.W.8 is a

seizure witness. P.W.1-Santos Kumar Jena is the neighbour of the

accused, who has been examined to prove that the accused persons burnt

the dead body of the deceased Santi in the night of alleged occurrence.

P.W.11-Pramoda Kumar Sahu, the A.S.I. of Police is the informant,

whereas P.W.9-Rahas Bihari Pani the then S.I. of Police of Khandagiri

P.S. and P.W.10-Basudev Mohanty, the Inspector of Police, D.C.R.B. are

the investigating officers, of whom P.W.10 submitted charge sheet. The

accused persons examined co-accused Dr. Pramod Kishore Samantaray

as D.W.1 and one Bhima Sahu, a co-villager of the accused as D.W.2.

P.W.1-Santos Kumar Jena is the neighbour of the accused

appellants. He has stated that when he was returning to his house from

pond, on the date of occurrence he saw the co-accused Pahali Barik

going towards cremation ground of the village in a bullock cart loaded

with fire wood. When he asked him as to why he was going towards

cremation ground with fire wood, he told that he was going to the

cremation ground for burning the dead body of the wife of appellant

No.1-Babuli Barik. After returning to his house he found the accused

persons except co-accused-Pramod Samantaray and Ichha Barik were

making arrangement for taking the dead body of Santi Barik to the

cremation ground by carrying the dead body with Tokei. In his cross-

examination he has stated that the accused-Babuli Barik and his wife

were living peacefully after marriage. There was no injury on the dead

body of Shanti. The deceased was suffering from dysentery and

diarrhoea prior to her death.

P.W.2-Brajabandhu Lenka, who claims to be the mediator of

the marriage, has testified in his examination-in-chief that he went to the

house of the accused nos.1 and 2 about one year after marriage and was

told by deceased Shanti to inform her father (P.W.6) for payment of

Rs.5,000/- as balance dowry amount and a godrej almirah. She further

stated before him that she was being insulted by accused nos.1 and 2 for

non-payment of balance dowry demand and non-delivery of the godrej

almirah. It has been elicited from his cross-examination that the deceased

never complained of torture for non-payment of the amount in question

during his visit to the house of accused No.1 after marriage.

P.W.3-Sobha Barik the aunt of the deceased is the neighbour

of the appellants. She has stated that that the appellants were abusing and

harassing the deceased for non-payment of balance dowry amount and

one godrej almirah. She has further stated that on the occurrence day in

the morning hours, the deceased told her that she was being harassed by

her husband and in-laws and that on the same day at the evening time she

told her (P.W.3) that her husband and in-laws were not providing her

with food and her father-in-law Markanda caused injury on her lip by

means of sickle. She admitted in her cross-examination to have not stated

before the police officer that the deceased was being harassed by

appellants for non-payment of balance dowry amount. The omission to

state the said material facts amounts to contradiction and the same is

excluded out of consideration. But her evidence that deceased Santi told

her that she was being harassed and that she was not provided with food

and her father-in-law caused injury on her person on the occurrence day

has been left completely unchallenged in the cross-examination.

P.W.4-Gavarani Basantaray, the mother of the deceased

Santi has no personal knowledge of torture of the deceased. Her evidence

reveals that the deceased came to her house several times after marriage

and complainted that accused nos.1 and 2 and others were torturing and

assaulting her demanding the balance dowry amount and godrej alimirah.

The deceased came to her house for the last time three months prior to

her death and told about the ill-treatment. In her cross-examination she

has stated that deceased Santi returned to her house 15 days after

marriage and stayed for six months and never complained of torture. She

has not preserved any letter received from her sister (P.W.3) complaining

of torture nor submitted any written report to the police alleging ill-

treatment on her daughter prior to her death in connection with any

demand for dowry. It is thus clear from the evidence of P.W.4 that the

deceased was complaining before her about 6 and ½ months after

marriage that she was being assaulted and tortured by accused nos.1 and

2 for non-payment of dowry.

P.W.5-Padma Charan Basantara @ Barik, the brother of the

deceased Santi has testified that accused no.1 and his parents were

torturing his sister for non-payment of the balance dowry amount. The

deceased also disclosed before him (P.W.5) and others of his family three

months before her death, when she came to their house, that her husband

and in-laws were torturing her. Further accused no.2 on 06.03.1991

abused P.W.5 in her house and did not allow him to talk with his sister

(deceased) for not bringing the dowry and godrej alimrah. He claims to

have disclosed the said facts before P.W.3 and his parents. He has

admitted that he has no personal knowledge of torture.

P.W.6-Sachidananda Basantaray, father of the deceased

Santi and P.W.7 the Sadu of P.W.6 have supported the evidence of P.W.5

that they came to know from deceased Santi that accused nos. 1 and 2

and others were ill-treating and harassing her demanding the balance

dowry amount and godrej almirah.

P.W.7-Dusasan Barik has not mentioned in his report (Ext.4)

about torture in connection with demand for dowry. He had not stated

before the I.O. (P.W.9) during investigation that accused no.1 and others

were torturing deceased Santi for non-payment of Rs.5,000/- as the

dowry amount and non-delivery of one godrej almirah after marriage. It

goes to show that P.W.7 has introduced a new story regarding torture for

the first time during trial.

P.W.8-Pramod Kumar Barik in his evidence stated that on

8.3.1991 at 10.00 a.m. police officer of Khandagiri P.S. seized burnt

pieces of bone, ash and one mobil tin from the cremation ground of

village Retang and prepared the seizure list. In the cross-examination he

has stated that P.W.7 is his natural father. He cannot say if his natural

father was trying to give him as the adopted son of Markand Barik.

P.W.9-Rahas Bihari Pani, the S.I. of police in his evidence

stated that on 25.05.1991 at 9.00 a.m., on receipt of the written

information from A.S.I. Pramod Kumar Sahu of Khandagiri P.S.

Khandagiri P.S. Case No.128 dated 25.5.1991 was registered under

Section 498-A/34 of IPC. On 25.5.1991 after taking investigation, he

visited the spot in village, Retang, examined the witnesses, searched for

the accused persons but could not trace them out. On 28.5.1991, accused

persons surrendered before the Court of learned S.D.J.M., Bhubaneswar.

On 30.5.1991, he also examined some witnesses. On 18.7.1991 the

seized properties were sent to State F.S.L. for examination. On

18.7.1991, Inspector Basudev Mohanty of D.C.R.B., Bhubaneswar took

the charge of investigation from him. In the cross-examination, he has

stated that he had not seized the U.D. case record. He brother the said

record to his custody. On 25.5.1991 he examined the witness Pramod

Kumar Barik (A.S.I), Sova Barik, Dusasan Barik, Prahallad Barik,

Chandramani Barik and Binod Bhoi. P.W.7 had not stated before him

that his Sadu, Satchidananda paid Rs.30,000/- to accused Babuli before

the marriage and that on the demand of accused Babuli Satchidananda

agreed to pay Rs.5,000/- and a goderj almirah after marriage and that the

accused Babuli and Markand started torturing the deceased for non-

payment of Rs.5,000/- and non-delivery of one godrej almirah after

marriage.

P.W.10-Basudev Mohanty who was the Inspector of Police

attached to D.C.R.B., Bhubaneswar in his evidence has stated that on

27.7.1991 he took charge of this case from S.I. R.B.Pani (P.W.9). On

09.08.1991 he examined the witnesses, namely, Dusasan Barik, Sova

Barik, Satchidananda Basantaray, Padmacharan Basantaray, Tarmani

Basantray. On 01.09.1991 he visited the spot. On the same day, he

arrested accused, Rabindra Das and forwarded him to court on the next

date. On 26.1.1991 he seized the invitation card. On completion of

investigation, he submitted charge sheet against the accused persons on

14.10.1992. In his cross-examination he has stated that he had not seized

any register and certificate from Kananbala Seva Sadan. Accused

Pramod Kishore Samantray was in charge of the said Seva Sadan. He

examined all the witnesses in his O.C.R.B. office on 09.08.1991. P.W.9

had also recorded the statements of the witnesses, namely Dussasan

Barik, Sova Barik and others. He cannot say if Sova Barik, Dusasan

Barik and other witnesses developed their story and gave statements

before him implicating the accused persons.

P.W.11-Pramod Kumar Sahu in his evidence stated that on

09.03.1991 one Dusasan Barik, son of Anguni Barik of village, Retang

appeared at the Police Station and presented a written report before the

IIC, Khandagiri P.S. On the basis of the said report the IIC registered

U.D. Case No.05 of 1991 and directed him to take up inquiry. During

enquiry, he visited the house of the accused, Babuli Barik and examined

the witnesses. On 8.3.1991 at 10.00 a.m. he seized some ashes, burnt

pieces of bone and one mobil tin from the burial ground of village,

Retang in presence of witnesses and prepared the seizure list, Ext.1. His

enquiry reveals that the deceased, Santilata Barik died of torture by her

husband and in-laws.

D.W.1-Dr.Pramod Kishore Samantaray in his evidence

stated that he knew the accused, Babuli Barik and deceased Santilata

Barik. He was the Medical Officer attached to Kananabala Seva Sadan at

village Retang from 1986 to 1991. On 05.03.1991, the wife of accused,

Babuli Barik came to his house for treatment. She was suffering from

diarrhoea with vomiting. He prescribed medicine for her. He issued

prescription on 05.03.1991. In his cross-examination he has stated that he

is one of the accused in the Sessions Case and facing trial under Section

201 IPC. The accused, Babuli came to him alone on 07.03.1991 at

morning hour. There was no other government hospital nearer to village

Retang except Kananbala Seva Sadan. He denied that he issued Ext.8

after the death of Santilaata Barik. He had not maintained any register for

entering the name of patients to whom he treated privately.

D.W.2-Bhima Sahu in his evidence stated that he knew all

the accused persons. They are his co-villagers. There was no demand

from the side of the accused Babuli before or after his marriage with the

deceased. There was also no payment of any amount towards dowry. The

accused persons never tortured the deceased while she was staying in

their house demanding dowry. The deceased died due to diarrhoea and

vomiting. She suffered for two days. The father and brother of the

deceased came to the house of accused, Babuli Barik being informed

about the death of the deceased and were present when the dead body

was burnt. In his cross-examination he has stated that he went to the

house of the father-in-law of the accused, Babuli for the first time on the

date of his marriage. He ascertained from the father-in-law of the accused

that there was no demand for dowry or payment of the same. It was false

to say that Rs.35,000/- was demanded as dowry from the side of the

accused, Babuli and Rs.30,000/- was paid out of the demanded amount

before marriage.

JUDGMENT OF TRIAL COURT

5. The learned trial Court held that the prosecution has been

able to establish that the accused and 2 demanded Rs.35,000/- as dowry

from the parents of deceased before the marriage and accepted

Rs.30,000/- out of the demanded amount. The demand was made in

connection with the marriage. So the accused nos. 1 and 2 have

committed the offence punishable under Section 4 of the Dowry

Prohibition Act. The learned trial Court further held that the prosecution

has failed to establish the charges under Sections 498-A, 304-B read with

Section 34 of IPC. against accused Nos. 1 and 2, under Section 201/34

of IPC against accused Nos. 1 to 6 and under Section 201 of IPC against

accused No.7 and acquitted them of the said charges. The appellants

were held guilty for commission of offence under Section 4 of the Dowry

Prohibition Act and sentenced to undergo S.I. for six months.

SUBMISSIONS

6. Mr. G.N. Mishra, learned counsel for the appellants

submitted that the impugned judgment of conviction and sentence is

vitiated due to want of finding that the alleged demand for Rs.35,000/-

was in consideration of the marriage so as to bring it with the meaning of

„dowry‟. The evidence of the witnesses are discrepant as to when the

alleged demand for dowry was made which is very material for bringing

home the charge under Section 4 of the D.P. Act. He further submitted

that in absence of any material to show any demand or dowry and in

view of the discrepant statements of the witnesses, the trial Court should

not have held the appellants guilty for the offence under Section 4 of the

D.P. Act.

The learned trial Court rightly rejected the evidence of

P.Ws. 2, 3 and 7 with regard to demand of dowry but erroneously relied

on evidence of P.Ws. 4 to 6 to convict the appellant under Section 4 of

the D.P. Act.

If the learned trial Court found the evidence to be materially

discrepant about torture on account of the demand of dowry, for the

purpose of Section 498-A IPC, it could not have accepted if for making

out offence Section 4 of the D.P. Act. He has further submitted that the

appellant was 38 years old in 1991. He is now almost 70 years by now.

He had undergone 02 days custody during investigation. Sending him to

Jail at this stage will be iniquitous and he should therefore be extended

the benefit of probation which the Trial Court had improperly refused.

7. Mr. M.R.Mishra, learned Addl. Standing Counsel on the

other hand submitted that basing on the materials on record, the learned

court below has rightly convicted the accused appellants for commission

of offence under Section 4 of the D.P. Act and sentenced them

thereunder as aforesaid. As the sentence imposed is not excessive, the

order of the trial Court does not call for any interference.

STATUTORY PROVISIONS

8. Section 2 and 4 of the Dowry Prohibition Act which are

relevant for deciding this appeal, are extracted below:-

"2. Definition of 'dowry'.-

In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly-

(a)by one party to a marriage to the other party to the marriage; or

(b)by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

*** Explanation II.- The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860)."

"Section 4 Penalty for demanding dowry.-

If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or

bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months."

JUDICIAL PRONOUNCEMENTS

9. In the case of Edakkandi Dineshan @P. Dineshan &

others vs State of Kerala : 2025 INSC 28 , the Supre Court has held as

follows : -

"18. Either a partial, untrue version of one of the witnesses or an exaggerated version of a witness may not be a sole reason to discard the entire prosecution case which is otherwise supported by clinching evidence such as truthful version of the witnesses, medical evidence, recovery of the weapons etc. At this stage, it may not be out of place to refer to the principle called as „falsus in uno, falsus in omnibus‟.

19. It is a settled position that „falsus in uno, falsus in omnibus‟ (false in one thing, false in everything) that the above principle is foreign to our criminal law jurisprudence. This aspect has been considered by this Court in a plethora of judgements. In the case of Ram Vijay Singh vs State of

UP:2021 SCC Online SC 142 , a Three Judge bench of this Hon‟ble Court had held that:

"..(20) We do not find any merit in the arguments raised by the learned counsel for the Appellant. A part statement of a witness can be believed even though some part of the statement may not be relied upon by the Court. The maxim falsus in uno, falsus in omnibus is not the rile applied by the courts in India. This Court recently in a judgement IIangovan vs State of T.N. held that Indian Courts have always been reluctant to apply the principle as it is only a rile of caution. It was held as under: (SCC Pg 536, Para

11)"

"(11) The Counsel for the Appellant lastly argued that once the witnesses had been disbelieved with respect to the co accused, their testimonies with respect to the present accused must also be discarded. The Counsel is, in effect, relying on the legal maxim "falsus in uno, falsus in omnibus", which Indian Courts have always been reluctant to apply. A three Judge bench of this Court, as far back as in 1957, in Nisar Ali v. State of UP, held on this point as follows (AIR p 368, Para 9-10) "(9) This maxim has not received general acceptance in different jurisdictions in India nor has this maxim come to occupy the status of a rule of law. It is merely a rule of Caution. All that it amounts to is that in such cases the testimony may be disregarded and not that it must be disregarded. (10) The Doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of Evidence" (21) Therefore, merely because a prosecution witness was not believed in respect of another accused, the testimony if the said witness cannot be disregarded qua the present Appellant. Still, further it is not necessary for the prosecution to examine all the witnesses who might have witnessed the occurrence. It is the quality if evidence which is relevant in criminal trial and not the quantity."

Hence, as can be seen from above, it has being a consistent stand of this Hon'ble Court that the principle „falsus in uno, falsus in omnibus‟ is not a rule of evidence and if the court inspires confidence from the rest of the testimony of such a witness, it can very well rely on such a part of the testimony and base a conviction upon it" ( Emphasis supplied)

In the case of M. Venkateswar vs. State : (2025) 3 SCC 578,

the Supreme Court while confirming the conviction of the appellant

under Section 498-A of IPC and Section 4 of the Dowry Prohibition Act,

considering the fact that the appellant had undergone approximately three

months in custody reduced his sentence to the period already undergone

and enhanced the fine to Rs.3 lakhs to be paid as compensation to the

wife .

ANALYSIS

10. P.W.5 brother of the deceased has stated about demand of

dowry of Rs.35000/- and a goderj almirah, by the appellants and

Markanda before the marriage and that Rs.30,000/- had been paid before

marriage and balance Rs.5000/- and goderj almirah was to be given after

marriage. P.W.4 mother of the deceased has also stated about such

demand. These two witnesses had also stated about torture of the

deceased for non-payment but the allegation of torture has been

disbelieved by the learned trial Court. Merely because their evidence

regarding torture has been disbelieved, that does not mean that their

entire evidence has to be rejected. As the evidence of P.W.4 and P.W.5

regarding demand and acceptance of dowry by the appellant before the

marriage has not been shaken during cross-examination and in view of

the fact that the principle "falsus in uno, falsus in omnibus" , is foreign

to our criminal law jurisprudence , their evidence is not to be rejected in

toto.

CONCLUSION

11. In view of the above discussion, I find no reason to interfere

with the conviction of the appellant Babuli Barik under Section 4 of the

D.P. Act.

12. In view of the nature of allegations against the appellant and

as demand of dowry is a social evil, which unfortunately is still

prevalent, I am not inclined to extend the benefit of Prohibition of

Offenders Act to the appellant.

13. Section 4 provides for minimum sentence of six months but

which may extend to two years. It also provides that a lesser may be

imposed for reasons to be recorded.

14. It has been submitted that the appellant is aged about 70

years now. Considering the age of the appellant, I am inclined to reduce

the substantive sentence to one month simple imprisonment and impose a

fine of Rs.1000/-, in default to undergo S.I. for one month more.

15. The conviction of the appellant under Section 4 of the D.P.

Act is thus confirmed, but the sentence is reduced to simple

imprisonment for a period of one month and to pay a fine of Rs.1000/-,

in default to undergo S.I. for one more month.

16. The Criminal Appeal is dismissed with modification in

sentence.

17. Trial court records be sent back after retaining a scanned

copy.

......................

(Savitri Ratho) Judge

Orissa High Court, Cuttack Dated 30th May, 2025/ Sukanta

Signed by: SUKANTA KUMAR BEHERA

Location: Orissa High Court, Cuttack Date: 30-May-2025 22:05:54