Appeal against conviction under Section 498-A IPC. High Court held trial court relied on inadmissible improved statements of prosecution witnesses. Found defence explanation plausible. Set aside conviction and acquitted appellants.
Impugned judgment set aside; appellants acquitted and bail bonds discharged.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA NO.84 OF 1995
(From the judgment and order dated 10th February, 1995 passed by learned Sessions Judge, Phulbani in S.T. No.46 of 1994)
Kartika Bhukta and others
… Appellants
-versus-
State of Odisha … Respondent
Advocates appeared in the case through hybrid mode:
For Appellants : Ms.Anima Dei,
Advocate
-versus-
For Respondent : Mr.S.N.Das,
Addl. Standing Counsel
--------------------------------------------------------------------------- CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT 20.03.2023.
Sashikanta Mishra,J . The Appellants in the present appeal questions
the correctness of the judgment of conviction and
CRA No.84 of 1995 Page 1 of 11
sentence passed by learned Sessions Judge, Phulbani on 10th February, 1995 in S.T. Case No.46/1994 whereby, being convicted for the offence under Section 498-A of I.P.C. they were sentenced to undergo R.I. for three years and to pay fine of Rs.2,000/- each, in default to undergo further R.I. for four months.
2. The prosecution case, briefly stated, is as follows;
One Narendra Majhi addressed a letter to the S.P., Phulbani on 14th August, 1993 stating therein that his daughter who was given in marriage to Kartika Bhukta (Appellant No.1) three years before, was found hanging from a branch of a tree. It was further alleged that prior to her death, the deceased was subjected to cruelty, both physically and mentally by her husband and in-laws in connection with their demand for further dowry. It was further stated that because of illtreatment, the deceased used to come to her paternal home at times and thereafter the matter was resolved amicably by the informant. On the date of occurrence
i.e. 3rd August, 1993, the informant received
CRA No.84 of 1995 Page 2 of 11
information that his daughter died and that she was hanging from a tree by means of a rope. Since the branch of the tree was 17 feet above the ground, the informant suspected foul play and reported the matter at the Police Station. Since no action was taken the informant submitted the application to the S.P. On the direction of S.P., Phulbani, the case was registered as Boudh P.S. Case No.99(9) of 1993 under Section 498A/304-B/34 of I.P.C. read with section 4 of the D.P. Act followed by investigation. Upon completion of investigation charge sheet was submitted against accused persons for the aforementioned offences.
3. The defence took the plea of denial. The plea of the accused persons, apart from denial was that on the day of Shrabana Purnima the deceased had gone with her husband to her paternal house to demand her share from the property that both of them returned and thereafter ate their dinner and slept. When the deceased left home to commit suicide was not within
their knowledge.
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4. In order to prove its case, the prosecution examined
9 witnesses and exhibited 10 documents. The defence also examined 2 witnesses but did not adduce any documentary evidence. Of the prosecution witnesses, P.W.1 is the informant, P.Ws.2,3 and 4 are his covillagers, P.W.5 is a co-villager of the accused, P.W.6 is inquest witness, P.W.7 is the scribe of the petition addressed to the S.P, P.W.8 is the I.O. of the U.D. Case and P.W.9 is the Autopsy Surgeon and P.W.l0 is the Investigating Officer.
5. After appreciating the evidence on record, the trial Court found that there is no evidence to prove the offence under Section 304-B of I.P.C. However, relying on the evidence of P.Ws.1,2 and 3, the Trial Court held
that the offence under Section 498-A of I.P.C. is clearly established. Accordingly, the accused persons were convicted and sentenced as aforesaid.
6. Heard Ms. Anima Dei, learned counsel for the Appellants and Mr. S.N.Das, learned Addl. Standing
Counsel for the State.
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7. Miss Anima Dei contends that the finding of the
trial Court is entirely against the weight of evidence on record inasmuch as the statements of P.Ws.1,2 and 3 relied upon by the Trial Court are found to be clear improvements from their earlier version and therefore, could not have been taken note of. She further contends that P.W.5 was though projected as an important witness, did not support the prosecution case. On the contrary, the defence evidence is quite plausible and worthy of belief as it offers a reasonable explanation for the deceased for committing suicide. 8. Mr. S.N.Das, learned Addl. Standing Counsel, submits that there being evidence of the deceased being subjected to cruelty in connection with demand for dowry, the finding of the trial Court on such score cannot be faulted with. He further submits that the defence evidence cannot be taken into consideration at all.
9. It is apparent that the prosecution has heavily relied upon the evidence of the informant (P.W.1),
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P.W.2, in whose presence the dispute between the parties was supposedly resolved amicably and P.W.3, who also was witness to the complaint made by the deceased regarding her ill-treatment by the accused persons.
10. A reading of the evidence of P.W.1 shows that he has admitted to have given certain articles at the time of marriage which, being old, the accused persons were taunting the deceased. He has further deposed that her husband was physically assaulting her and the other accused persons were also abusing her. As such, P.W.1 called Bansidhar Panda (P.W.2) before whom the deceased confronted her husband about the assault and torture inflicted to her. Bansidhar Panda pacified the matter and the husband of the deceased took her to his house. P.W.1 has again stated that in the month of Baisakh, the Appellant No.1 came with one Dinabandhu Mallik (P.W.5) of his village and P.W.1 called one Nakula Bisoi (P.W.3) of his village. In their presence, the deceased is said to have described about
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the torture meted out to her in her matrimonial home by the accused persons and refused to go to their house.
11. P.W.2 has corroborated the above statements of P.Ws.1 and 3. In cross-examination it was suggested to all these witnesses that they had not stated these facts before the investigating Officer during investigation.
The I.O., being examined as P.W.10 was also confronted with such facts. He admitted that P.W.1 had not specifically stated to him that Kartika was physically assaulting her for having not brought new articles but had said he had heard as such from his wife. The I.O. further admitted that P.W.1 had not specifically stated before him that Sabita came to his house in Falguna and Baisakh after a year of the marriage and that Sabita confronted Kartika in his house (P.W.1) about the assault and torture inflicted in the house of the accused Kartika before Bansidhar Panda and that he pacified the matter and Kartika took Sabita to his house. The I.O. also admitted P.W.1
CRA No.84 of 1995 Page 7 of 11
had not stated to him that accused Kartika came with Dinabandhu of his village. It is seen that the major portion of the statement of P.W.1 as also of P.W.2 are found to be improvements over their earlier versions before the I.O. P.W.5 resiled form his earlier statement and turned hostile. Thus, there is no acceptable evidence to show that the accused persons had subjected the deceased to cruelty for bringing old articles at the time of marriage. It is common knowledge that some articles and gifts are usually given by the family of the bride to the bridegroom and his family members. Therefore, merely because there is evidence of certain articles having been given cannot, ipso facto, lead to the conclusion that they were given on demand by the accused persons. That apart, there is no acceptable evidence to show that the accused persons assaulted the deceased or otherwise treated her with cruelty by making further demands for dowry. This Court is therefore, unable to accept the reasoning of the trial Court which, as stated earlier, appears to be entirely based on the evidence of
CRA No.84 of 1995 Page 8 of 11
P.Ws.1,2 and 3. The learned State counsel has raised a question of presumption inasmuch as, if the deceased was otherwise happy in her matrimonial home then what could have prompted her to end her life if not, being mentally upset by the constant torture meted out to her.
12. This Court has already held that there is no acceptable or clear-cut evidence to support the allegation of the accused persons treating the deceased with cruelty. On the other hand, the defence has examined two witnesses. D.W.2 stated that on the day of Shrabana Purnima he found Sabita in the company of her husband and Dinabandhu Mallik going towards Nuapalli and to his query, Sabita told him that she is going to appropriate the share of landed properties from her father. Again at 4 P.M. on the same day, he saw Sabita returning crying and to his query Sabita told him that her father had not given any share of the landed property to her. In fact, this is the defence plea that being humiliated for being deprived of her share in
CRA No.84 of 1995 Page 9 of 11
her father’s property, the deceased committed suicide. In the absence of any evidence to back the prosecution story the defence explanation as above appears to be plausible. It is trite that the defence evidence has to be weighed on the principles of pre-ponderance of probability. To such extent therefore, the defence evidence can be accepted in this case. It is further trite that when two views are possible on the same set of evidence, the one leaning in favour of the accused has to be accepted.
13. A reading of the impugned judgment reveals that the trial Court has not considered the matter in the correct perspective at all, rather appears to have been swayed away by the inadmissible statements made by P.Ws.1,2 and 3. For such reason, this Court holds that the impugned judgment cannot be sustained in the eye of law.
14. In the result, the appeal is allowed. The impugned judgment of conviction and sentence is hereby set aside. The Appellants are acquitted of the
CRA No.84 of 1995 Page 10 of 11
charges. The Appellants being on bail, their bail bonds be discharged.
( Sashikanta Mishra)
Ashok Kumar Behera
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2 issues framed by the court
Whether the conviction under Section 498-A of IPC is sustainable when prosecution evidence contains clear improvements and is inadmissible.
Whether the defence explanation regarding the cause of suicide is plausible in absence of evidence supporting prosecution allegations.
2 provisions across 1 enactments
Kartika Bhukta and others
State of Odisha
Sashikanta Mishra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
