Rajib Rout vs State of Orissa

S.K. Sahoo, J. - The Appellant faced trial in the Court of Learned Addl. Sessions Judge, Jagatsinghpur in Sessions Trial No.325 of 2002 for offences punishable under Sections 498-A, 304-B, 302 of Indian Penal Code & Section 4 of Dowry Prohibition Act. The Learned Trial Court vide impugned Judgment & Order Dated 7.1.2006 while acquitting the Appellant under Section 302 IPC found him guilty under Sections 498-A, 304(B) of Indian Penal Code & Section 4 of Dowry Prohibition Act & accordingly convicted him of such offences & sentenced him to undergo R.I. for one year for offence under Section 498(A) IPC, R.I. for ten years for offence under Section 304(B) IPC & to undergo R.I. for six months for offence under Section 4 of D.P. Act. The sentences were directed to run concurrently.

The prosecution case, in short, as per the first information report (Ext.2) lodged by Pahali Rout (P.W. 9), father of Ahalaya Rout (hereafter ''the deceased'') is that the marriage between the Appellant & the deceased was solemnized one & half year prior to the date of occurrence in Sarala Temple in accordance with Hindu customs & rites. At the time of marriage, cash of Rs.6,000, gold ornaments & other articles were given towards fulfilment of the demand of dowry. Few days after marriage, the deceased was physically & mentally tortured in connection with demand of more dowries. The Appellant got separated from his family members & lived separately with the deceased but continued to torture the deceased physically & mentally demanding more dowries. The deceased was not even allowed to go to her father''s place & on one occasion when the deceased visited to her father''s place, within three days of her stay, the Appellant brought her back. The informant''s family members were not visiting the house of the Appellant as he was always torturing the deceased. On 15.09.2011 the cousin brother of the Appellant came to the house of the informant & gave message regarding the illness of the deceased & about her hospitalization. The informant rushed to Kujanga Hospital & found the deceased lying dead & noticed injuries on her person. The informant suspected that in connection with demand of more dowries, the Appellant had killed the deceased.

Basing on such F.I.R. of P.W. 9, the Sub-Inspector of Police Kartik Chandra Mallik (P.W.19) who was attached to Kujanga Police Station registered Kujanga P.S. Case No.149 of 2001 on 15.9.2001 under Sections 498-A/304-B/302 IPC & Section 4 of the D. P. Act in absence of the Officer-in-charge & himself took up investigation of the case. He visited the spot, examined the witnesses, conducted inquest over the dead body of the deceased & prepared inquest report Ext.3 & sent the dead body for post mortem examination. P.W.18 Dr. Kailash Chandra Sahoo who was the Medical Officer attached to District Headquarters Hospital, Jagatsinghpur conducted post mortem examination on police requisition & submitted his report Ext. 5. The I.O. seized the dowry articles from the house of the Appellant & prepared seizure list Ext.4/2. He released the dowry articles in the Zima of the informant (P.W.9). He arrested the Appellant & forwarded him to Court. After completion of investigation, he submitted charge sheet against the Appellant.

The defence plea of the Appellant is one of denial.

In order to prove its case, the prosecution examined 22 witnesses.

P.W.1, P.W.2 & P.W.3 who are the co-villagers of the Appellant stated that they do not know anything about the case.

P.W.4 Rasananda Tarei, P.W.5 Jogi Majhi & P.W.6 Satyananda Dalei are the uncles of the deceased who stated about noticing injury on the person of the deceased in Kujanga Hospital.

P.W.7 Narayan Panda & P.W.8 Sribash Parida proved their signatures in the zimanama Ext. 1.

P.W.9 Pahali Rout is the informant in the case & he stated about the demand of dowry at the time of marriage, torture on the deceased by the Appellant & further demand of Rs.10,000 by the Appellant after marriage & consequential torture on the deceased for non-fulfilment of such demand. He proved the zimanama Ext.1.

P.W.10 Surendra Kumar Swain is a witness to the inquest held at Kujanga Hospital under inquest report Ext.3.

P.W.11 Prakash Chandra Swain denied about any seizure in connection with this case in his presence.

P.W.12 Arati Rout is the cousin sister of the deceased but she denied having any knowledge regarding cause of death of the deceased.

P.W.13 Gajendra Rout simply stated about the marriage of the Appellant & the deceased.

P.W.14 Prana Krushna Behera stated about the seizure of a plastic rope by the police in his presence.

P.W.15 Dr. Laxmidhar Pradhan was the Medical Officer, Kujanga PHC who stated to have received the dead body of the deceased on 15.9.2001.

P.W.16 Surendra Rout & P. W.17 Barada Prasad Mohanty who were the priest & clerk of Sarala Temple respectively stated having no knowledge about the marriage between the Appellant & the deceased.

P.W.18 Dr. Kailash Chandra Sahu was the Medical Officer attached to District Headquarters Hospital, Jagatsinghpur who on 16.9.2001 conducted post mortem examination over the dead body of the deceased & proved the post mortem report Ext. 5.

P.W.19 Kartik Chandra Mallick is the Investigating Officer PW.20 Kalpataru Mangaraj was the mediator in the marriage between the Appellant & the deceased & he stated having no knowledge about any demand of dowry by the Appellant at the time of marriage.

P.W.21 Dr. Saroj Ranjan Swain was the Asst. Surgeon attached to District Headquarters Hospital, Jagatsinghpur who assisted PW.18 while conducting post mortem examination.

P.W.22 Santosh Barik stated to have no knowledge about the cause of death of the deceased.

No witness was examined on behalf of the defence.

The prosecution exhibited six numbers of documents. Ext.1 is the Zimanama, Ext.2 is the FIR, Ext.3 is the inquest report, Ext.4/2 is the seizure list of a rope, Ext.5 is the post mortem report, Ext. 6 is the seizure list of dowry articles.

The Learned Counsel for the Appellant Mr. Samir Kumar Singh submitted that the prosecution has miserably failed to establish that the death of the deceased was caused by burns or bodily injury or occurred otherwise than under normal circumstances & that she was subjected to cruelty or harassment by the Appellant for or in connection with the demand of dowry & that to soon before her death & as such the Learned Trial Court was unjustified in holding the Appellant guilty under Section 304-B IPC. He further contended that the prosecution case regarding cruelty on the deceased by the Appellant has not been proved in terms of the definition of "cruelty" with reference to clauses (a) or (b) of the Explanation as envisaged under Section 498-A IPC. He further contended that the prosecution case regarding demand of dowry by the Appellant has not been established with clinching & satisfactory evidence & therefore the order of conviction under Section 4 of D.P Act is also misconceived.

The Learned Counsel for the State Mr. Sk. Zafarulla on the other hand while supporting the impugned Judgment & order of conviction submitted that the Learned Trial Court has scanned the evidence on record in proper perspective & rightly convicted the Appellant. He further contended that since death of the deceased had taken place within seven years of her marriage & from the medical evidence as well as ocular evidence, it is evident that the deceased had met with an unnatural death & there was consistent demand of Rs. 60,000 by the Appellant & also torture on the deceased for non-fulfilment of such demand & the defence has failed to dislodge the prosecution case, the appeal preferred by the Appellant should be dismissed.

One of the essential ingredients of Section 304-B IPC which relates to ''dowry death'' is that it must be proved that death of woman was caused by burns or bodily injury or has occurred otherwise than under normal circumstances. The expression "normal circumstances" apparently means natural death. In other words the expression "otherwise than under normal circumstances" means death not being in the usual course but apparently under suspicious circumstances if not caused by burns or bodily injury. Let us analyse the evidence on record to see as to how far the prosecution has established such essential ingredients of Section 304-B IPC.

P.W.18 who was the Medical Officer attached to District Headquarters Hospital, Jagatsinghpur conducted post mortem examination over the cadaver of the deceased on 16.9.2001. He noticed one contusion on the right side cheek close to the ear & another contusion situated over the right side upper eye brow. On dis-Section, he found all the vital organs were intact & no extravasation of blood was found in the neck. The trachea was found in tact so also the hyoid bone. The doctor preserved the viscera for sending the same for chemical examination & he reserved his opinion regarding the cause of death awaiting chemical examination of the viscera. He proved the post mortem report as Ext. 5.

There is absolutely no material on record as to whether the viscera were sent for chemical examination or not. The doctor P.W.18 has stated that he has neither received the chemical report after examination of viscera nor he has given any final opinion regarding cause of death. In a case of this nature where the doctor conducting post mortem reserved his opinion regarding cause of death awaiting chemical examination report of the viscera, it was the utmost duty & responsibility of the investigating officer to take immediate steps for sending the viscera for chemical examination. Then it becomes the duty of the chemical examiner to expedite the examination of such viscera & after such examination, send the chemical examination report to the concerned Court who has dispatched the viscera for its chemical analysis. A copy of the report should also be sent to the concerned investigating officer. Then it becomes the duty of the investigating officer to produce the chemical examination report of the viscera before the doctor conducting post mortem examination for obtaining his final opinion regarding the cause of death of the deceased. In most of the cases, it is noticed that there use to be inordinate delay in sending the viscera for chemical analysis & even if it is sent, either the report is not received from the chemical examiner or no sincere steps are being taken by the investigating agency to obtain such report from the chemical examiner as a result of which there is failure of proper dispensation of justice in most of the cases. Not only it is the duty of the investigating officer, the chemical examiner but also the Court through whom the preserved viscera are sent for chemical analysis, to see that chemical examination report is received at an earliest. It is not only the duty of the investigating officer to collect & submit the chemical examination report at the time of filing Final Form on completion of investigation under Section 173 Cr.PC. but it is equally the duty of the Learned Magistrate to furnish the copy of such report to the accused without delay, free of cost in terms of the provisions under Section 207 Cr.PC. before making commitment of the case to the Court of Sessions under Section 209 Cr. PC. when the offence is triable exclusively by the Court of Sessions. Rule 50 of G.R.C.O. (Criminal) of High Court of Judicature, Orissa wherein procedure has been laid down to be followed by the Magistrate at the time of commitment of an accused to the Sessions Court, indicates, inter alia, regarding supply of report of the chemical examiner to the Public Prosecutor as well as defence lawyer. The statutory obligation imposed by Section 207 read with Section 209 on the Magistrate to furnish free of cost copies of documents is a judicial obligation.

In this case in absence of any material to show that the preserved viscera were sent far chemical analysis; in absence of proving the chemical examiner report & in absence of obtaining the final opinion regarding cause of death of the deceased from PW.18, it cannot be conclusively said that the death of the deceased has occurred on account of any bodily injury or otherwise than under normal circumstances. Merely because two contusions were found one on the right side cheek & the other over the right side upper eye brow (size has not been given), it can be said in absence of the age of injury & possibility of cause of such injuries that those have any bearing on the death of the deceased. According to Modi''s Medical Jurisprudence bruises or contusions are injuries which are caused by a blow from a blunt weapon, such as a club (lathi), whip, iron bar, stone, ball, fingers, fist, boots or by a fall, or by crushing or compression. Bruises can be accidental, homicidal & self inflicted. Similarly there can be ante-mortem or post-mortem bruises.

In this case the post mortem report is completely silent about the nature of contusions noticed on the body of the deceased. It is the duty of the prosecution to prove, inter alia, in order to establish a charge under Section 304-B IPC that the death of the woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances. Neither the medical evidence nor the ocular evidence adduced by the prosecution established such aspect. Section 304-B of the Indian Penal Code does not categorize death as homicidal or suicidal or accidental. This is because death caused by burns can, in a given case, be homicidal or suicidal or accidental. Similarly, death caused by bodily injury can, in a given case, be homicidal or suicidal or accidental. Finally, any death occurring "otherwise than under normal circumstances" can, in a given case, be homicidal or suicidal or accidental. Therefore, if all the other ingredients of Section 304-B of the Indian Penal Code are fulfilled, any death (whether homicidal or suicidal or accidental) & whether caused by burns or by bodily injury or occurring otherwise than under normal circumstances shall, as per the legislative mandate, be called a "dowry death".

Thus in view of the nature of evidence available on record, I am of the opinion that the prosecution has miserably failed to establish that the death of the deceased was caused on account of any burns or bodily injury or had occurred otherwise than under normal circumstances which is one of the essential ingredients of offence under Section 304-B I PC.

So far as the demand of dowry is concerned, it is only the informant PW.9 who has stated about such demand. PW.9 is the father of the deceased & he has mentioned in the FIR that the marriage of the deceased with the Appellant was performed about one & half year prior to her death & during his deposition also he has stated that marriage between the Appellant & the deceased was performed three years back. He has stated that the marriage was held in Sarala Temple & as per the demand, he gave Rs.6000, gold ring, a watch & cycle to the deceased. The mediator of the marriage was examined as P.W.20 but he said that he was not aware about any dowry demand by the Appellant at the time of marriage. The priest & the clerk of Sarala Temple where the marriage was solemnized have been examined & they have not stated anything about any cash or articles given to the Appellant at the time of marriage. P.W.4, 5 & 6 are the three uncles of the deceased & they have also not whispered anything about the demand of dowry by the Appellant at the time of marriage.

Similarly, PW.9 has stated that Appellant assaulted the deceased demanding Rs. 60,000 more which was told to him by the deceased. He has not stated as to when such a demand was raised or assault was made. Such a statement is not corroborated by the three uncles of the deceased i.e., P.W.4, 5 & 6. Even in the F.I.R. P.W.9 has not mentioned about the demand of Rs.10,000 more by the Appellant. PW.9 has stated that the deceased stayed in the house of the Appellant for three years but she has not given any letter to him alleging ill-treatment by the Appellant. He has further stated that the deceased repeatedly came to his house for more than ten times & he has never intimated to anybody regarding the torture of his daughter by the Appellant. He has further stated that nobody had heard about ill-treatment while the deceased was staying in the house of the Appellant.

The contradictory evidence of the solitary witness P.W.9 & his uncorroborated testimony regarding demand of dowry by the Appellant & torture on the deceased coupled with his conduct in not intimating anybody regarding the torture on the deceased creates sufficient doubt about the prosecution case relating to demand of dowry as well as cruelty on the deceased. In absence of such specific materials which are linked with the offences under Section 498-A as well as 304-B IPC, it is difficult to held that the prosecution has established such charges against the Appellant. Similarly in absence of any specific materials regarding demand of dowry by the Appellant, it is difficult to sustain an order of conviction under Section 4 of the D.P Act.

The Learned Trial Court has failed to take into account the vital links which are missing in the case to establish the charges against the Appellant. The Learned Trial Court seems to have taken aid of presumption of dowry death invoking Section 113-B of Evidence Act. A conjoint reading of Section 113-B of Evidence Act & Section 304-B IPC shows that the death must be first proved to be on account of burns or bodily injury or otherwise than under normal circumstances & then it is also to be shown by the prosecution that soon before the death the woman was subjected to cruelty or harassment or in connection with any demand of dowry. The interval between the cruelty or harassment on the woman & her unnatural death should not be much & there should be proximate & live link between the effects of cruelty based on dowry demand & the unnatural death of the deceased. Unless there is a perceptible nexus between the death of the deceased & dowry related harassment or cruelty inflicted on the woman, an accused cannot be convicted under Section 304-B IPC with the aid of the presumption under Section 113-B of Evidence Act. "Shall presume" which occurs in Section 113-B of Evidence Act is to be read in consonance with "shall presume" which is defined in Section 4 of the Evidence Act that "whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless & until it is disproved". So the Court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the Court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both. Similarly cruelty or harassment must be shown to have been committed by the accused within the meaning of Clauses (a) or (b) of the Explanation to Section 498-A IPC.

In the ultimate analysis, I am of the opinion that the prosecution has miserably failed to establish the charges under Sections 498-A & 304-B of Indian Penal Code & also under Section 4 of Dowry Prohibition Act. Accordingly, the impugned Judgment & order of conviction is set aside & the Appellant is acquitted of the charges under Sections 498-A & 304-B of Indian Penal Code & Section 4 of Dowry Prohibition Act. As it appears that the Petitioner was directed to be released on bail vide Order Dated 26.2.2008 of this Court, inter alia, furnishing cash security of Rs.10,000. The cash security was modified to Rs.5,000 on 1.5.2008 & then to Rs. 6,000 on 21.7.2008 & subsequently the cash security of Rs. 6,000 was waived on 23.9.2008 taking into account the poor condition of the Appellant. It is not clear as to whether the Appellant has been released from jail custody or not? If not released, he should be set at liberty forthwith if his detention is not required in any other case. If he has been released by the Learned Trial Court by virtue of the order of this Court on furnishing bonds then he is discharged from liability of his personal & surety bail bonds.

The JCRLA is allowed.