Subrat Kumar Pradhan vs State of Orissa

This is an application under section 482 of Cr.P.C. filed by the petitioner Subrat Ku.Pradhan @ Bulu for quashing the impugned order dated

02.11.1999 passed by the learned J.M.F.C., Banpur in G.R. Case No. 176 of 1999 in taking cognizance of offences under sections 498-A/304-

B/34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act and issuance of process against him. The said case arises out of Banpur

P.S. Case No. 96 of 1999.

The first information report was lodged by one Biranchi Narayan Baral of village Baradi (Hari Kunda) at Nachuni Outpost which was

forwarded to the officer in charge of Banpur Police Station for registration and accordingly Banpur P.S. Case No. 96 of 1999 was registered on

05.07.1999 under sectiona 498-A/304-B/302/34 of the Indian Penal Code and section 4 of Dowry Prohibition Act against the petitioner and

three others namely Ashok Kumar Pradhan, Bansidhar Pradhan and Subani @ Swarnalata Pradhan.

As per the first information report, it is the prosecution case that the marriage between the daughter of the deceased namely Bobby @ Sradhanjali

Baral was solemnized on 29.04.1996 with one Ashok Kumar Pradhan who is the brother of the petitioner in accordance with Hindu rites and

customs and at the time of marriage, there was demand of cash of Rs. 30,000/- (rupees thirty thousand), gold ornaments and wrist watch which

was raised by the husband of the deceased and her father-inlaw. Apart from the demanded articles, the other articles were also given by the

informant. After marriage, the deceased was residing in her in-laws house. In the year 1997, the deceased gave birth to twin babies and after that

her husband, father-inlaw, mother-in-law and the petitioner started demanding Rs.20,000/- (rupees twenty thousand) were towards dowry from

the deceased and since the demand was not fulfilled, she was subjected to physical and mental torture by the petitioner and other in-laws family

members of the deceased. After getting message from the deceased, the informant came to the house of the petitioner and tried to pursue the in-

laws family members not to torture the deceased but no fruitful result came out. It is further stated in the first information report that on 15.01.1999

which was Savitri Amavasya day, the informant visited the house of the petitioner and found that the deceased was crying after being assaulted by

her husband and seeing the informant, she told that as the further demand of Rs.20,000/- was not fulfilled, she was being assaulted by in-laws''

family members, therefore, she would not survive. The husband of the deceased refused to accept the gifts which the informant had taken on the

eve of Savitri Amavasya and asked the informant to bring cash of Rs.20,000/- (rupees twenty thousand) only. Accordingly, the informant returned

home in a depressed mood. The informant got the message on 05.07.1999 that the in-laws family members of the deceased forcibly administered

poison to her and thereafter she was taken to a private hospital. The informant came to the clinic of doctor Manmohan Mohapatra, Balugaon and

found the deceased was lying dead. Suspecting the involvement of the husband, father-in-law, mother-in-law and the petitioner in the death of the

deceased, the first information report was lodged.

During course of investigation, the Investigating Officer examined number of witnesses from the paternal side of the deceased and the dead body

was sent for post mortem examination and after completion of investigation, finding prima facie case against the petitioner and other co-accused

persons, charge sheet was submitted under sections 498-A/304-B/302/34 of the Indian Penal Code and section 4 of Dowry Prohibition Act.

Mr. Pulakesh Mohanty, learned counsel appearing for the petitioner submitted that the co-accused persons namely Ashok Kumar Pradhan who

is the husband, Bansidhar Pradhan and Subani @ Swarnalata Pradhan who are the father-in-law and mother-in-law of the deceased respectively

faced trial in connection with the case in the Court of learned Addl. Sessions Jude, Khurda in S.T. Case No. 14/86 of 2000 for offences

punishable under sections 498-A/304-B/302/34 of the Indian Penal Code and section 4 of Dowry Prohibition Act and vide judgment and order

dated 24.10.2000, the learned trial Court has been pleased to hold that the prosecution has miserably failed to prove the charges and accordingly

acquitted them. The learned counsel further submitted that the petitioner is similarly situated like the co-accused persons who have been acquitted

by the learned trial Court and in view of the available evidence on record, there is no chance of any conviction of the petitioner and therefore,

valuable time of the Court should not be wasted and the continuance of the proceeding against the petitioner should be terminated by quashing the

same.

Learned counsel for the petitioner relied upon the decision of the Hon''ble Supreme Court in case of Central Bureau of Investigation -Vrs.-

Akhilesh Singh reported in (2005) 30 Orissa Criminal Reports 201 so also the decisions of this Court in the cases of Aditya Kumar Rath -Vrs.-

State of Orissa reported in (2008) 41 Orissa Criminal Reports 233, Surendra Kumar @ Surendra Routray and Anr. -Vrs.- State of Orissa

reported in 2011(1) Orissa Law Reviews 1052 and Babaji Dash -Vrs.- State of Orissa reported in (2015) 60 Orissa Criminal Reports 1084 in

support of his contention.

Mr. Prem Kumar Patnaik, learned Addl. Government Advocate on the other hand contended that the charge sheet was filed in the year 1999

and the petitioner was an absconder and merely because co-accused persons after facing trial have been acquitted, the same cannot be ground to

quash the criminal proceeding against the petitioner particularly when the offences are serious in nature.

Learned counsel for the petitioner produced the first information report and the statements of witnesses as well as the copy of the charge sheet.

On perusal of the same, it appears that not only in the first information report but also in the statements of the witnesses, there are materials against

the petitioner relating to demand of dowry so also torturing the deceased physically and mentally in connection with the demand of dowry. On

perusal of the judgment in respect of the coaccused persons, it appears that out of twenty six charge sheet witnesses, only nine witnesses were

examined.

The learned trial Court on analysis of the evidence of P.Ws 1 to 9 held that it appears that save and except the statement of P.W.1 that the

deceased had disclosed before him that her husband had given a contraceptive injection to prevent her pregnancy, there is no dying declaration

found on that score. It is further held that P.Ws. 6, 7 and 8 have categorically stated that the deceased and her husband were living happily and

their conjugal life was happy. Accordingly, the learned trial Court held that the prosecution has miserably failed to bring home the ingredients of the

charges under sections 498-A/304-B/302/34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act and acquitted the co-accused

persons.

In case of Akhilesh Singh (supra), the respondent Akhilesh Singh challenged the order of framing charge before the High Court which was

quashed and against the said order the C.B.I. approached the Hon''ble Supreme Court. The Hon''ble Supreme Court has been pleased to hold as

follows:

5........ There was no direct evidence to show that the respondent had supplied the weapons and rendered assistance to the assailants in carrying

out the common object of killing Syed Modi. Had the conspiracy charge been established, at least some of the acts and conduct of the respondent

could have been made admissible under the provisions of Section 10 of the Evidence Act. Once the main accused, who is alleged to have hatched

the conspiracy and who had the motive to kill the deceased was discharged, and when that matter had attained finality, the learned Single Judge

was fully justified in holding that no purpose would be served in further proceeding with the case against the respondent......

Therefore not only the case of Akhilesh Singh is distinguishable from the facts of the case but the fact remains that the observation was made when

the charge was challenged and accordingly it was quashed.

In case of Aditya Kumar Rath (supra), it has been held as follows:-

In the instant case, the main accused, namely, Kailash Rath having already been acquitted by the judgment of the Trial Court dated 28.02.2005

with the specific finding that the prosecution has failed to prove the charges against the accused beyond reasonable doubt as already detailed

above and accordingly the Trial Court having found the accused not guilty of offence under Sections 307/34 of the Indian Penal Code, I feel that

continuance of the criminal proceeding against the present petitioner, in the split up case, would be an abuse of process of law, especially when

there is bleak possibility of conviction.

In case of Surendra Kumar @ Surendra Routray (supra), the prosecution witnesses turned hostile and they were examined under section 154 of

the Evidence Act but one of them only supported the prosecution case and accordingly, this Court has been pleased to hold that the continuation

of the criminal proceeding against the petitioners would be an abuse of the process of law. It was further held that since there is bleak possibility of

any conviction, no useful purpose would be served by allowing the criminal proceeding to continue.

In case of Babaji Dash (supra), it is held that P.Ws. 2, 3 and 4, who are the parents and brother of the deceased lady have not supported the

prosecution case and when the other accused who is husband of the deceased faced trial and has already been acquitted of all the charges, the

continuance of the criminal proceeding against the petitioner, who is the old fatherin- law, would be an abuse process of Court, especially when the

chances of his ultimately conviction are bleak.

Thus the cases cited by the learned counsel for the petitioner are distinguishable from the present case in as much as only nine witnesses out of

twenty six charge sheet witnesses were examined in the trial Court when the co-accused persons faced trial and there is nothing on record as to

why as many as seventeen witnesses were not examined by the prosecution in a case of serious charge of this nature. Some of the vital witnesses

were not examined. On perusal of the statements of witnesses, it appears that they have implicated the petitioner in connection with torturing the

deceased. Therefore, if they would be summoned and examined and they support the prosecution case during trial, the possibility of the trial Court

taking a different view than what was taken in the case of co-accused persons cannot be ruled out. In case of Hidayat Khan @ Hidayatullah Khan

-Vrs.- State of Orissa reported in (2017) 68 Orissa Criminal Reports 945, it is held as follows:

7..... There is no settled principle of law that whenever some accused persons are acquitted after facing trial or discharged by the trial Court, the

co-accused should also be discharged or the proceeding in respect of such co-accused should also be quashed. Absconding accused cannot be

given premium to frustrate the justice or to misuse the process of law by treating him at par with those accused who have shown respect for legal

processes and have appeared and have not evaded their arrest......

In view of the materials available on record particularly when all the charge sheet witnesses have not been examined when the co-accused persons

faced trial and got acquitted and in view of the prima facie material available on record against the petitioner and the fact that the petitioner was an

absconder for a number of years and it is a case of dowry death, merely because co-accused persons after facing trial have been acquitted by the

learned trial Court, the same cannot be a ground to quash the criminal proceeding against the petitioner.

In view of the foregoing discussions, I am unable to accept the contention raised by the learned counsel for the petitioner and therefore, the

CRLMC application being devoid on merits, stands dismissed.