Dandapani Padhy Vs State

¶1

THE HIGH COURT OF ORISSA AT CUTTACK

¶2

CRLREV No.518 of 2014

¶3

(In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973)

¶4

Dandapani Padhy & others ……. Petitioners -VersusState of Orissa ……. Opposite Party

¶5

For the Petitioners : Mr. D.P. Dhal, Senior Advocate For the Opp. Party : Mr. Sashanka Patra, Addl. Standing Counsel

¶6

CORAM:

¶7

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

¶8

Date of Hearing: 24.06.2024 : Date of Judgment: 16.07.2024

¶9

S.S. Mishra, J. The present Criminal Revision filed under Section 401 read with

¶10

Section 397 of Cr.P.C. is directed against the judgment and order dated 17.04.2014 passed by the learned Additional Sessions Judge, Phulbani in Criminal Appeal No.8/21 of 2013-2011, whereby the judgment of

¶11

conviction and order of sentence dated 22.07.2011 passed by the learned S.D.J.M., Phulbani in G.R. Case No.298 of 2004/T.R. No.285 of 2011 has been partly allowed.

¶12

2. The prosecution case in brief is that one Parikhita Das of R. Nuagam is the complainant in this case. His daughter Kalyani Das married Satyanarayan Padhi, the accused-petitioner No.3 of Balliguda, Patra Sahi on 10.03.2004. At the time of marriage of his daughter, he gave gold ornaments, a steel almirah, a cot and other house-hold articles as demanded by the bridegroom side. He could not give Rs.80,000/- to accused-petitioner No.3 Satyanarayana Padhi because he had not received the G.P.F. advance at that time. It was alleged that for not giving cash towards the dowry, the accused persons subjected the victim to physical as well as mental torture. She intimated this fact to her parents. So, on 13.04.2004, the complainant gave Rs.80,000/- to the accused persons. After that, all the accused persons continued to torture her demanding more cash from her. Accused-petitioner No.3 Satyanarayan deprived her of the conjugal life. He was not having any sexual relationship with the victim. Though the accused purchased

¶13

Page 2 of 13

¶14

Kissan Vikash Patra in his name and in the name of the victim for Rs.40,000/- still continued to torture her. So, on her intimation, her

¶15

father went to Balliguda on 08.06.2004 and rescued his daughter. The complainant made several efforts to settle the dispute between them, but all went in vain. So, he lodged a written report in Khajuripada Police Station. On his report, Khajuripada P.S. Case No.68 of 2004 was registered.

¶16

3. During the course of investigation, the I.O. visited the spot, examined the complainant and other witnesses. The I.O. seized the dowry articles and other documents in this case. As there was evidence under Sections 498-A/406/34 IPC read with Sections 4 & 6-A of the D.P. Act, the accused-petitioner No.3 Satyanarayan Padhi was arrested on 20.09.2004 and was forwarded to the Court. The other accused persons surrendered before the Court and were released on bail. After completion of investigation of the case, the I.O. submitted the charge sheet against the accused persons for the offences punishable under Sections 498-A/406/34 IPC read with Sections 4 & 6-A of the D.P. Act.

¶17

4. To bring home the charges, the prosecution examined 18 witnesses and 10 documents were exhibited. The defence examined only one witness.

¶18

5. The learned Trial Court analyzed the entire evidence on record

¶19

and while convicting the petitioners, sentenced them to undergo R.I. for one year and to pay fine of Rs.1,000/- (Rupees one thousand) each for having convicted under Sections 498-A/34 IPC in default to undergo R.I. for three months. They were also sentenced to undergo R.I. for three months and to pay fine of Rs.500/- each in default to undergo R.I. for 22 days for having convicted under Section 4 of the D.P. Act. They were further sentenced to undergo R.I. for three months and to pay fine of Rs.500/- (Rupees five hundred) in default to undergo R.I. for 22 days in default of payment of fine for having convicted for the offence under Section 6-A of the D.P. Act. All the sentences were directed to run concurrently.

¶20

6. The judgment of conviction and order of sentence dated 22.07.2011 passed by the learned S.D.J.M., Phulbani in G.R. Case No.298 of 2004/T.R. No.285 of 2011 was called in question by filing

¶21

Page 4 of 13

¶22

Criminal Appeal No.8/21 of 2013-2011 before the Court of the learned Addl. Sessions Judge, Phulbani, by the petitioners.

¶23

7. Having failed in their appeal, the petitioners have challenged the judgment of conviction /order of sentence of both the Courts below in the present Revision Petition.

¶24

8. Heard Mr. D.P. Dhal, learned Senior Counsel appearing for the petitioners and Mr. Sashanka Patra, learned Additional Standing Counsel for the State.

¶25

9. Perused the impugned judgment of conviction and order of sentence passed against the petitioners and meticulously evaluated the evidence on record.

¶26

10. The petitioners were subjected to trial after being charged for the offences punishable under Sections 498-A/406/34 IPC read with Sections-4 & 6A of the D.P. Act.

¶27

11. The prosecution in order to prove its case against the petitioners examined as many as 18 witnesses. Kalyani Das, P.W.2 is the victim in the instant case whereas P.W.1, the father of the victim was the

¶28

complainant. P.Ws.6, 7, 8, 9, 10 & 11 were the seizure witnesses.

¶29

Page 5 of 13

¶30

12. This dispute is arising out of a matrimonial discord. The husband of P.W.2 was arrayed as accused no.1 whereas the father-in-law and the mother-in-law were arrayed as accused nos.2 & 3.

¶31

13. By relying upon the testimony of the victim and her mother which according to the prosecution draws corroboration from the evidence of other witnesses, the Trial Court convicted the petitioners.

¶32

14. In this case, the evidence of P.Ws.1, 2, 3, 5 & 6 shows that this is a matrimonial dispute, which was attempted to be resolved in a village meeting, however, it did not succeed . Therefore, eventually the F.I.R. was registered against the petitioners.

¶33

15. The Trial Court convicted the petitioners for the offences under Sections 498-A/34 IPC read with Sections-4 & 6 of the D.P. Act, however, acquitted the petitioners for the offence under Sections-406/34 IPC. The Trial Court awarded the sentence of one year R.I. and fine of Rs.1,000/- (Rupees one thousand) each against the petitioners for the offences under Sections 498-A/34 IPC in default to further undergo R.I. for three months. The petitioners were also sentenced to undergo R.I. for three months and to pay a fine of Rs.500/- (Rupees five hundred) each in

¶34

Page 6 of 13

¶35

default to undergo R.I. for 22 days for the offence under Section-4 of the D.P. Act. In so far as the offence under Section 6A of the D.P. Act is concerned, the petitioners were again sentenced to undergo three months R.I. and to pay fine of Rs.500/- (Rupees five hundred) in default to undergo R.I for 22 days.

¶36

16. Being aggrieved and dissatisfied with the judgment of conviction and order of sentence dated 22.07.2011 passed by the learned S.D.J.M., Phulbani in G.R. Case No.298 of 2004, the petitioners filed Criminal Appeal No.8/21 of 2013-2011 before the learned Addl. Sessions Judge, Phulbani.

¶37

17. Vide judgment dated 17.04.2014, the Appellate Court concurred the finding of the Trial Court in so far as the recording of conviction for the offence under Section 498-A/34 IPC read with Section 4 of the D.P.

¶38

Act is concerned. However, acquitted the petitioners for the offence under Section 6A of the D.P. Act. The Appellate Court, inter alia ,

¶39

recorded the following finding:-

¶40

“8. Section 04 of the Dowry Prohibition Act provides punishment for any persons who demands directly or indirectly from the parents and other relatives or guardians of a bride or bridegroom as the case may be. In the present case the allegation of the prosecution is that

¶41

Page 7 of 13

¶42

originally there is demand of Rs.1,00,000/- besides other household articles as dowry from the informant by the present appellant. The informant could manage to give the dowry articles, but he failed to give the cash as he could not draw the same. The evidence on record further indicate that an amount of Rs.80,000/- was paid on 13.04.2004 but the victim was subjected to ill-treatment due to nonpayment of a balance of Rs.20,000/-. The victim has stated that the appellants disclosed that unless a cash of Rs.20,000/- and five tolas of gold is paid, they will not accept the victim. The evidence further indicates that time and again the victim was demanded with cash of other articles which was duly supplied. Learned SDJM, Phulbani relying upon the prosecution witnesses has rightly arrived at the conclusion that the present appellants directly demanded dowry from the father of the bride P.W.2 and hold the appellants guilty of offence u/s. 4 of the D.P. Act. This Court found no reason to interfere with the above observations of learned SDJM, Phulbani.

¶43

9. The appellants have been further convicted for commission of offence u/s. 6A (1) of the Dowry Prohibition Act. The said section provides punishment for any person who denies conjugal right to his wife on the ground that dowry has not been given or on the ground that the dowry given is insufficient. The said provision has been introduced vide Dowry Prohibition (Orissa Amendment) Act, 1975 (Orissa Act 01 of 1976) w.e.f. 18.01.1976. The above amendment clearly indicate that the same is intended to provide punishment to the husband who denies conjugal right to his wife on the ground that the dowry has not been given or on the ground that the dowry given is insufficient. In the present case the victim P.W.2 at Para 1 of the evidence has categoricaly stated that when sufficient amount of dowry could not be arranged or paid, the appellant Satyanarayan or her mother assaulted her time and again and appellant Satyanarayan did not keep any physical relationship with her. There has been absolutely no cross-examination with her. Highlighting the judgment passed by learned SDJM, Phulbani it is submitted that in view of the amendment provisions of the Dowry Prohibition Act it is not known as to how learned SDJM, Phulbani found all the appellants guilty of offence u/s. 6A of the D.P. Act. It is further submitted that the appellants were never questioned during their examination u/s. 313 Cr.P.C. on this part of the prosecution case, for which they are prejudiced. I find sufficient merits in his above submission. It is not known as to how learned SDJM found the appellants namely Dandapani Padhi and Basanti Padhi guilty of offences u/s. 6A of the D.P. Act. The amendment provision clearly indicates that only the husband can be made punishable under this section. In the absence of

¶44

Page 8 of 13

¶45

any evidence that the appellant No. 2 & 3 abated commission of offence u/s. 6A of D.P. Act, they cannot be held liable either. Therefore, the findings of learned SDJM, Phulbani that appellant Dandapani Padhi and Basanti Padhi are guilty of offence U/s. 6A of D.P. Act is not sustainable under law. It is a fact that the appellant Satyanarayan Padhi was never questioned during his examination u/s. 313 Cr.P.C. on this part of the prosecution case. It is well settled in law that the object of Section 313 Cr.P.C. for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. It is held that circumstances not put to the accused cannot be used against him. (2002)1 SCC 731 in Ganesh vs. State and (2002) 1 SCC 702 in Subash vs. State. In Asraf Ali vs. State (2008) 16 SCC 328, (2010) 4 SCC (Cri) 278 Hon’ble Apex Court observed that:

¶46

“Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary there from that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.”

¶47

It has been further held by Hon’ble Apex Court that the conviction is liable to be set aside when the accused is not examined in accordance with the provisions of Section 313 Cr.P.C. (AIR 1982 SC 1200 Naba Parray and others vs. State of Jammu & Kashmir and AIR 1979 SC 1566 Harijan Magha Jessa vs. State of Gujrat). In the present case learned SDJM, Phulbani examined the appellants on 05.07.2011, but the examination appears to be very cryptic and no question was put to the accused Satyanarayan against materials in response to offences u/s. 6A of the D.P. Act. In my view the above omission will definitely prejudice the appellants Satyanarayan and the findings of learned SDJM, Phulbani for that offence cannot be sustained under law.”

¶48

18. Since the petitioners failed in their appeal before the learned

¶49

Sessions Court, they have preferred the present revision assailing the

¶50

judgment of conviction and order of sentence passed against them.

¶51

Page 9 of 13

¶52

19. Mr. Dhal, learned Senior Counsel for the petitioners submitted that in the interregnum the petitioner no.3 and the alleged victim, P.W.2 Kalyani Das had approached the Civil Court for dissolution of their marriage. The said matter eventually came up before the learned District Judge, Phulbani in RFA No.10 of 2011. Learned District Judge, vide its order dated 17.04.2013 has recorded as under:

¶53

“Order dated.17.04.2013

¶54

The received is advanced to today in the petition of the advocate for appellant. Both the appellant and the respondent file a joint compromise petition signed by their advocate to compromise the appeal on payment of Rs.1,00,000/- (One Lakh) by the appellant through Bank draft in favour of respondent. The appellant files a Bank draft for Rs.1,00,000/- in favour of the respondent along with the compromise petition. The contents of the compromise petition is readover and explained to both the parties in the open court in presence of their respective advocates who admitted the contents thereof as true and correct. Hence the compromise petition is accepted and do form part of decree of their appeal. Accordingly the appeal is disposed of in favour of compromise. The Bank draft for Rs.1,00,000/- be handed over to the respondent after obtaining proper acknowledgement in token of receipt the same in the order sheet.”

¶55

20. The aforesaid order was passed by the learned District Judge,

¶56

Phulbani on the strength of a joint affidavit dated 16.04.2013 filed by the petitioner no.3 and Smt. Kalyani Das. The contents of the joint affidavit are relevant to be reproduced hereunder:

¶57

“1. That the Hon’ble Civil Judge (Senior Division) Phulbani has been pleased to pass judgment and decree directing the appellant to

¶58

Page 10 of 13

¶59

pay Rs.1,50,000/- towards permanent alimony to dissolve the marriage between the parties.

¶60

2. That both the parties have amicably settled and it is decided that the appellant will pay Rs.1,00,000/- (Rupees One lakh) to the respondent towards permanent alimony for dissolution of their marriage. The respondent also agreed for the same and she shall not claim any further amount from the appellant either towards permanent alimony or maintenance in future as passed in M.C. No.118/04.

¶61

3. That the appellant deposited the permanent alimony of Rs.1,00,000/- in shape of Bank Draft in the name of the respondent Kalyani Das before this Hon’ble Court along with this petition.

¶62

4. That the respondent Kalyani Das will not insist to proceed further in E.P. No.5/2011 of the Court of the Civil Judge (Senior Division) Phulbani as well as the Criminal Appeal bearing No.CRA 21/11 pending before this Hon’ble Court. The above cases may be closed against the appellant and his family members.

¶63

Hence it is prayed that your Honour be pleased to allow this present petition and close the above appeal in the interest of justice and for which they shall ever pray.”

¶64

21. Mr. Dhal, learned Senior Counsel emphasizing on the

¶65

aforementioned joint affidavit and the proceeding of the learned District Judge in RFA No.10/2011 submitted that this Court may record an acquittal in favour of the petitioners in view of the said circumstance. He has relied upon the judgment of this Court in the case of Jitendra Rout

¶66

vs. State of Orissa reported in 2011 (Suppl-II) OLR 781 . Paragraphs-3 & 6 of the said judgment relied upon by Mr. Dhal are reproduced below:

¶67

Page 11 of 13

¶68

“3. The other facts required to be noticed for disposal of this case are that a case was registered against the petitioner under Sections 498-A, IPC and Section 4 of D.P. Act Barchana Police Station by the informant, Bimala, wife of the petitioner. After investigation charge sheet was filed against the petitioner and other family members. The petitioner along with other faced trial before the learned C.J.M. Jajpur and after trial, only the petitioner was found guilty for the offence under Section 498-A, IPC and Section 4 of the D.P. Act challenging the said order of conviction, the petitioner moved the Appellate Court and after hearing the Appellate Court confirmed the order of conviction and sentence passed by the Trial Court. Hence the revision.

¶69

6. In view of the above undertaking, she was required to take appropriate steps in accordance with law for disposal of that case, but no such steps were taken by her and for the reasons best known to her, she did not move the competent Court for withdrawal of the case pending against her husband. To my mind, in view of all these events and the conduct of the informant-wife, it would be abuse of the process of the Court if the criminal proceedings arising out of which the present revision arises is allowed to continue. Therefore, I am of the considered opinion, ends of justice would met if the petitioner is acquitted of the charge in this case.”

¶70

22. Taking into consideration the aforementioned facts and

¶71

circumstances of the case and relying upon the ratio of the judgment in Jitendra Rout ( supra ), I am inclined to accede to the prayer made by Mr. Dhal, learned Senior Advocate.

¶72

23. Accordingly, I allow the Revision Petition and record acquittal in favour of the petitioners for the offences under Sections 498-A/34 IPC

¶73

Page 12 of 13

¶74

read with Section-4 of the D.P. Act. The bail bonds furnished by the petitioners stands discharged accordingly.

¶75

24. The CRLREV is accordingly allowed

¶76

…………………. (S.S. Mishra) Judge

¶77

The High Court of Orissa, Cuttack The 16^th of July, 2024/Amit