Pandari Sahu & Ors vs State Of Orissa

Dr. A.K.Mishra, J

This criminal appeal is preferred by the appellants-accused persons against the judgment dated 21.02.11998 passed by the learned Additional

Sessions Judge, Angul in Sessions Trial NO. 98-A of 1996/ 20 of 1998 convicting them under Sections 302, 304-B, 498-A read with Section 34 of the

Indian Penal Code and under Section 4 of the Dowry Prohibition Act, 1961(to be referred hereinafter as “D.P.Actâ€) and sentencing them to

undergo imprisonment for life under Section 302/34 I.P.C., imprisonment for 10 years under Section 304-B/34 I.P.C., imprisonment for 2 years under

Section 498-A/34 I.P.C. and imprisonment for a month under Section 4 of the D.P. Act with a direction that the sentence are to run concurrently.

1.1 During pendency of this appeal, appellant no.2-Lambodar Sahu expired and appeal against him has been abated.

Adumbrated in brief, the prosecution case runs thus:-

Padmabati married appellant no.3-Kirtan Sahu on 27.2.1996 as per Hindu rites and customs. Appellant no.4-Chaitanya Sahu is the brother of Kirtan

Sahu. Appellante no.1-Pandari Sahu is the mother. The marriage was solemnized as per Hindu rites and customs. The groom was given dowry of one

Chettak Bajaj Scooter, one gold ring, one wrist watch, gold necklace, table fan and other furniture and utensils. The bride was sent to her husband‟s

house at Soloda. After a fortnight Padmabati returned to her father‟s house. She disclosed that her husband, father-in-law, mother-in-law and

husband‟s elder brother Chaitanya Sahu had asked her to bring Rs.25,000/- more towards dowry by the time she return, failing which she would be

killed. After 13 days the brother of Padmabati, namely, Kalandi Sahu took her to husband‟s house and left there. On that day Kalandi had assured the

in-law‟s to arrange and give the demanded money of Rs.25,000/- within six months. Kalandi returned on that day. After four days Kalandi again went

to his sister‟s house. He noticed mark of swelling on her face. On query Padmabati disclosed that her husband, father-in-law, mother-in-law and

husband‟s elder brother had assaulted her and were threatening to kill her. Kalandi brought Padmabati back to their house.

2.1 On 23.6.1996, the brother-in-law of Kirtan, namely, Gadahar Pradhan came to the father‟s house of Padmabati and wanted to take her back to

her husband‟s house. The father of Padmabati did not accept such proposal as he had not arranged the money. On the persuasion of Gadadhar, he

allowed the daughter to go back on that day. Panic-struck Padmabati came to the house of her husband.

2.2 On 27.6.1996 at 7.00 A.M. morning, the father-in-law Lambodar Sahu came to the house of Kurpasindhu (victim‟s father) and

informed that Padmbati had sustained some burn injuries. Immediately both father and brother went to the in-law‟s house of Padmabati at Soloda.

Near the house, they found one white Ambassador car in which Padmabati was laid up unconscious. The car proceeded towards hospital. Her father

and brother followed. At the hospital, both of them noticed that Padmbati had sustained severe burn injuries. Doctor declared her brought dead.

Thereafter father of deceased Padmabati lodged an F.I.R. in Colliery Police Station basing upon which Colliery P.S. Case No. 88 dated 27.6.1996

was registered. Investigation ensued. At the hospital, inquest was made, so also postmortem. The death of deceased was found to be due to severe

burn injuries. The father-in-law had absconded and was arrested on 3.7.1996. The dowry articles were seized and left in the zima of the father of the

deceased. From the inner courtyard of the house of appellants-accused persons one half burnt saree, one match box, one plastic container and some

jute substance drenched with diesel were seized as per Exhibit-8.

2.3 After completion of investigation, charge sheet was submitted against all the appellants-accused persons. Cognizance under Sections 302, 498-A,

304-B read with 34 of the Indian Penal Code read with Section 4 of the D.P. Act was taken on 24.9.1996. The case was committed to the Court of

Session and trial commenced.

The plea of defence is denial simpliciter. Through defence witnesses a plea was advanced that the deceased was not mentally sound.

Prosecution has examined 10 witnesses. P.W.1 is the informant and also father of the deceased. P.W.6 is the brother of the deceased. P.W. 2 is

the doctor, who conducted the postmortem examination. P.W.3 the Constable along with P.W.4 are witnesses to the seizure and inquest. P.W.5 is the

neighbour. P.W.7 is an independent witness while P.Ws. 9 and 10 are Investigating officers. F.I.R., seizure list, marriage invitation card, P.M. report,

zimanama etc. are exhibited vide Exhibits-1 to 12. Half burnt saree, Plastic container containing jute substances and match box are marked as MO.I,

Mo.II and M.O. III respectively.

4.1 On behalf of defence two witnesses were examined. D.W. 1 is the wife of the appellant-accused Chaitanya Sahu. D.W.2 is the neighbour of the

accused persons.

Learned trial judge believed the witnesses regarding demand of dowry of Rs.25,000/- and perpetration of harassment for its non-payment.

Disbelieving defence he found the accused persons guilty and convicted and sentenced them as already stated above.

Miss S. Aradhana Mohanty, learned counsel for the appellants submitted that trial court has not considered the evidence of defence witnesses and

for that judgment suffers from non-application judicial mind. The factum of demand of dowry is not proved beyond reasonable doubt and for that

presumption under Section 113-B of the Evidence Act cannot be raised. In absence of eyewitness, the possibility that deceased might have died due to

accidental fire could not have been ruled out and on that account the conviction under Section 302 I.P.C. is not sustainable.

Mr. J.Katikia, learned Additional Government Advocate supported the judgment. Relying upon a decision reported in (2004) 3 Supreme Court

Cases 98, Yashoda and another v. State of M.P., he vehemently urged that death having occurred within four months of the marriage and defence

witnesses having supported the prosecution case in material particulars, the commission of dowry death and murder cannot be questioned..

Keeping the rival contentions in view, we carefully perused the evidence on record. The evidence of doctor P.W.2 reveals that the cause of death

was due to burn of more than 60% of the body surface area and shock. The death was within 24 hours from the time of Postmortem examination, i.e.,

on 27.6.1996 at 4.30 P.M. All the burn injuries were antemortem in nature and in ordinary course of nature would have caused death. The P.M.

report Exhibit-2 reveals that the stomach had contained some terry coloured fluid. So it is clearly proved that death of the deceased was on 26.6.1996

and due to antemortem burn injuries.

8.1 There is nothing revealed about the nature of death as to whether it was suicidal or accidental or homicidal. In order to arrive at a conclusion for

the charge of offence under Section 302 of the Indian Penal Code, the nature of death is to be proved beyond reasonable doubt. Hence, the medical

evidence of P.W.2 strikes at the root for having not disclosed the nature of death. There is no iota of evidence that Padmbati was murdered as

defined under Section 300 I.P.C. Ergo, the charge under Section 302 of the Indian Penal Code is not brought to book.

Keeping the distinction between Section 302 I.P.C. and Section 304-B I.P.C., i.e., murder and dowry death in view, let us proceed to scan further

evidence. There is no dispute and evidence is in abundance that deceased Padmbati had married accused Kirtan on 27.2.1996. Dowry articles given in

the marriage were seized and left in zima after death of Padmabati.

9.1 The evidence of P.W.1, the father of the deceased and her brother P.W.6 unerringly prove that after 14 days of the marriage as per custom

Padmabati was brought back to their house and she had disclosed that her husband, husband‟s elder brother Chaitanya, father-in-law and mother-in-

law had demanded Rs.25,000/- more towards dowry and had asked her to come back with that money, failing which she would be killed. Their

evidence disclosed that she had expressed that she was apprehending threat to her life and was not ready to return. This evidence gets corroboration

from the evidence of P.W.5, who is a co-villager of P.W.1. He has categorically stated that prior to one month of her death, when Padmabati was in

her father‟s house, one day she met her. She had told him that she would not go to her husband‟s house any more. She was reluctant but on being

insisted to disclose the reason, she had stated that they were demanding Rs.25,000/- and her father was not in a position to give the same. She had

also disclosed that unless demanded money of Rs.25,000/- was paid she would be killed. This fact is not shaken in the cross examination. These

witnesses are natural and reliable. Nothing is available to disbelieve them. From the above facts, it is clearly proved that accused persons had

demanded Rs.25,000/- and had threatened to kill the deceased after marriage and the deceased had carried forward fear in her mind for such non-

fulfillment of dowry demand. The evidence of brother of deceased P.W.6 that he had seen swelling mark after 4 to 5 days of her return to her

husband‟s house, corroborates such demand. It was after one month of the marriage. At this juncture evidence of D.W.1 who is none else than the

husband‟s elder brother‟s wife is relevant. She has categorically admitted in her chief examination at para-9 that the brother of the deceased Kalandi

had visited their house to see his sister for the 2nd time and had taken back the deceased Padmabati and by then deceased had told them that she

would not return again. The credibility of this evidence is not doubtful. So the prosecution gets assistance from defence evidence. The fact remains

proved beyond reasonable doubt that there was a demand of Rs.25,000/- by the appellants-accused persons after 15 days of the marriage and as the

same was an unmet demand, the deceased was not willing to return to her husband‟s house. Kalandi had seen the mark of injury. The deceased had

disclosed about such cruel treatment for non-payment of demanded amount of Rs.25,000/- not only before her family members but also before the

negihbour P.W.5. These foundational facts behind the death of deceased on 27.6.1996 are proved beyond reasonable doubt.

There is clear evidence that four days after deceased was brought back to the house of her husband at the instance of Gadadhar, the brother-in-

law of Kirtan, she was found dead for the burn injuries on 27.6.1996. The marriage was solemnized on 27.2.1996. Thus, the death was within 4

months of the marriage. The death of the deceased was caused by burn which otherwise than normal circumstances within 4 months of her marriage.

There was a demand of dowry for Rs.25,000/- by her husband and husband‟s elder brother, father and mother-in-law. She was not only under threat

but also subjected to harassment for unmet dowry demand. The presumption under Section 113-B of the Evidence Act can be raised against the

appellants. The contention that the deceased was not subjected to cruelty soon before her death even though there was a demand of Rs.25,000/- after

15 days of the marriage, can only be answered by referring to the decision of Yashoda and another(supra) cited by the learnedÂ

Additional Government Advocate. In that decision it has been held at para-16:-

“16. The words “soon before†found in Section 304-B IPC have come up for consideration before the Court in a large number of cases. This Court has

consistently held that it is neither possible nor desirable to lay down any straitjacket formula to determine what would constitute “soon before†in the context of

Section 304-B IPC. It all depends on the facts and circumstances of the case. Learned counsel for the appellant relied upon a decision of this Court rendered by two

learned Judges reported in Sham Lal v. State of Haryana and submitted that as in that case, so in the present case, there was no evidence to suggest that after the

deceased went to her matrimonial home, she had been subjected to cruelty and harassment before her death. The facts of Sham Lal case are clearly distinguishable

and they have been so distinguished in the case of Kans Raj v. State of Punjab by a Bench of three learned Judges of this Court. This Court observed: (SCC pp. 222-

23, para-15)

“15. It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or

harassment by the husband soon before her death. „Soon before‟ is a relative term which is required to be considered under specific circumstances of each case

and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term „soon before‟ is not

synonymous with the term „immediately before‟ and is opposite of the expression „soon after‟ as used and understood in Section 114, Illustration (a) of the

Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the

reasonable time which as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the

circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct.

Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be ‘soon

before death’ if any other intervening circumstances showing the non-existence of such treatment is not brought on record, before such alleged treatment and the

date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand

and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of

death should not be too remote in time which, under the circumstances, be treated as having become stale enough.â€​

In the case at hand presumption under Section 113-B of the Evidence Act is available against the appellants. The same is not rebutted. In the

statement made under Section 313 Cr.P.C. the appellant-accused persons have simply taken the plea of denial. Through defence witness they wanted

to advance that the deceases was not in fit state of mind. The same is neither proved nor shown to be the cause of death. D.W.1, who is husband‟s

elder brother‟s wife has stated that on the date of occurrence at 5.00 A.M. the deceased was sleeping near a fire place. She (D.W.1) had gone to

attend call of nature. Accused Kirtan (Husband) had been to his duty. Accused Chaitanya was sleeping in the house. On return she found that the

wearing clothes of the deceased were gradually burning. Immediately she called her husband and went to call her father-in-law and mother-in-law,

who were staying at their old house. They along with the villagers reached the spot and tried to extinguish the fire. Thereafter deceased Padmabati

was removed to Talcher Hospital. The reaction of this defence witness, who is husband‟s elder brother‟s wife, when she saw the gradually burning

of wearing apparels of deceased lying near fire place, is not commensurable with the ordinary natural human conduct. Such an explanation is not

believable and cannot be considered as a rebuttal of the presumption raised under Section 113-B of the Evidence Act. Thus, the ingredients of offence

under Section 304-B I.P.C is found to have been proved beyond reasonable doubt.

As demand of dowry of Rs.25,000/- by the appellants-accused persons was made and after marriage and for such unmet dowry demand, the

victim was subjected to cruelty, the offence under Section 498-A of the I.P.C. and Section 4 of the D.P.Act are also found to have been proved

beyond reasonable doubt.

On careful analysis of the evidence, it is found that offence under Section 302 I.P.C. is not proved and appellants-accused persons cannot be held

guilty thereunder. The offence under Sections 304-B/34, 498-A/34 I.P.C. and offence under Section 4 of the D.P. Act, 1961 are proved beyond

reasonable doubt.

Accordingly, the conviction and sentence of the accused persons, who are appellants, under Section 302/34 I.P.C. is set aside and they are

acquitted of the said charge.

14.1 The conviction of all the accused persons under Sections 304-B, 498-A read with section 34 I.P.C. and Section 4 of the D.P. Act, 1961 are

hereby upheld and confirmed.

14.2 Though the period of sentence has been awarded, the nature of such imprisonment is not stated. Under Section 3(27) of the General Clauses

Act, 1897, „imprisonment‟ shall mean imprisonment of either description as defined in the Indian Penal Code. Section 53 of the I.P.C. provides

that:-

“Sec.53. Punishments.-The punishments to which offenders are liable under the provisions of this Code are -

First - Death;

Secondly - Imprisonment for life;

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Fourthly â€" Imprisonment, which is of two descriptions, namely:-

(1) Rigorous, that is, with hard labour;

(2) Simple;

Fifthly â€" Forfeiture of property;

Sixthly â€" Fine.â€​

14.3 We feel justified to conclude that all the imprisonment awarded as the case at hand, shall be rigorous imprisonment andÂ

shall run concurrently. To clarify, on modification the appellants-accused persons are sentenced to R.I. for 10 years for offence under Section

304-B/34 I.P.C., R.I. for 2 years under Section 498-A/34 I.P.C. and R.I. for six months for offence under Section 4 of the D.P.Act, 1961. All the

sentences shall run concurrently.

With this modification the appeal is allowed in part.

Return the L.C.R. immediately to the lower court. .

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