State of Orissa vs Balakrishna Das and Others

L. Mohapatra, J.—This appeal is directed against the judgment and order of the learned 1st Additional Sessions Judge, Berhampur in SC No. 29/95/(S.C. No. 362/95 G.D.C.) acquitting the Respondents and others accused persons of the charges under Sections 302/304B/498A/34, IPC and charge under Sections 201/34, IPC.

During pendency of the appeal Respondent No. 1 having died, the appeal abated against him vide Order dated 5.2.2004.

The marriage between Ashalata or Asharani and Respondent No. 2 Balakrishna Das took place in the year 1984. It is the case of the prosecution that at the time of marriage some dowry had been given. On 22.2.1995, one Rajendra Kumar Hota (P.W.6), co-villager of the informant, had been to the village of the Respondent: to participate in the feast. He visited the house of the deceased and came to know from her that both the Respondents 1 and 2 were giving her threat to kill. There was a proposal in the house of the Respondents that the properties of the deceased could be given to Respondent No. 4 at the time of her marriage.

On 2.3.1995 at about 400 p.m. the watchman of the village, where the Respondents reside, came to the brother of the deceased and informed that the deceased died on 1.3.1995 at 8.00 p.m. After receiving the said news, the uncle and brother of the deceased went to village of the Respondents and learnt that the deceased was killed by the in-laws by throttling. When they were attempting to carry the dead body for cremation, one Purushottam Das of that village obstructed them and on intervention of the mediator, all the accused persons including the in-laws of the deceased cremated the dead body without bringing it to the notice of any authority. Suspecting foul play, an F.I.R was lodged and after investigation, charge-sheet was submitted for commission of the aforesaid offences.

The learned Additional Sessions Judge framed charge under Sections 302/304B/498A/34, IPC against the present Respondents and the Respondents accused persons along with the Respondents were charged under Sections 201/34, IPC. The prosecution examined 9 witnesses whereas the defence examined 3 witnesses. P.W 1 is the informant and also the maternal uncle of the deceased. P.W.2 is the doctor, who was treating the deceased. P.W.3 is a brother of the deceased and P.W.4 is a co-villager of P.W.3. P. W.5 is another brother of the deceased and P.W.6 is a witness, who was present at the time of marriage. P.W.7 is the I.O. On analysis of the evidence of the above witnesses, the Trial Court found that the death having occurred seven years after the marriage, the offence u/s 304B, I.P.C. is not attracted. The Trial Court also entertained a doubt with regard to cause of death of the deceased and accordingly, the offence u/s 302, I.P.C. also failed. The Trial Court did not find any material to support the charge of offence u/s 498A IPC and accordingly acquitted all the Respondents of the charges. So far as offence under Sections 201/34, IPC is concerned, the Trial Court did not also find any material to support the same.

The learned Counsel for the State assailing the impugned judgment submitted that the death of the deceased having not occurred under normal circumstances and there being evidence with regard to demand of dowry, the Respondents should have been convicted for commission of offence under Sections 304B and 498A/34, IPC. The learned Counsel for the Respondents drew attention of the Court to the evidence of the witnesses and submitted that there is no iota of evidence to support the charge u/s 498A, IPC as well as the offence u/s 30, IPC. So far as the offence u/s 304B, IPC, is concerned, the death having taken place seven years after the marriage, the prosecution miserably failed to establish the said charge.

Having heard the learned Counsel for the parties at length and on perusal of the evidence adduced on behalf of the prosecution, we find that though the marriage between the deceased and Respondent No. 2 took place some time in the year 1984, the deceased died in the year 1995 and, therefore, she having died seven years after the marriage, the offence u/s 304B, IPC, is not attracted. The Trial Court was justified in rendering such a finding. So far as offence u/s 302, IPC is concerned, there is absolutely no material on record to substantiate the said charge. On the other hand, the evidence of P.W. 2 indicates that the deceased was suffering from breast tumour with hypertension and she was under his treatment. The dead body having been cremated, there was no scope for post-mortem examination and, therefore, in absence of any material on record to show that the deceased was killed or committed suicide, the Trial Court rightly entertained a doubt about the cause of death taking into consideration the evidence of P.W.2. So far as offence u/s 498A is concerned, P.W.1 in his deposition stated that the deceased told one Rajendra Kumar Hota- P.W.6 that she was anticipating danger to her life as her father-in-law, husband, mother-in-law and brother-in-law were subjecting her to cruelty and she was also being threatened. P.W. 6 in his deposition stated that on 22.2.1995 he had been to the village Marudi Jagannathpur to attend a feast and the Respondent No. 2 called him to his house. He saw the deceased wearing a torn saree. The deceased told him to convey the massage to P.W.1 that she was being threatened by her in-laws. Though such statement was made by P.W.6 in his deposition, the evidence of I.O.-P.W.9 clearly shows that at no point of time P.W.6 had made any such statement before him in course of investigation. Under these circumstances, it is difficult to accept the evidence of P.W.1 that he was informed by P.W.6 that the deceased told about the alleged torture at the hands of the Respondents There is no other material on record to support the charge u/s 498A, IPC. So far as offence under Sections 201/34, IPC, is concerned, the Trial Court on consideration of the prosecution evidence as well as the evidence adduced on behalf of the defence, found that the said charge has not been established. On perusal of the reasons assigned by the learned Addl. Sessions Judge, we find no scope to interfere with the same.

In view of the above discussions, we find no justification to interfere with the impugned judgment and accordingly dismiss the appeal.

C.R. Dash, J.--I agree.