Orissa High Court
Bijaya Bhoi vs State Of Orissa on 2 November, 2021
Author: S.K. Sahoo
Bench: S. K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA NO.65 of 2008
From the judgment and order dated 28.03.2006 passed by the
Additional Sessions Judge, Angul in Criminal Trial (Sessions)
No.149 of 2004 / 36 of 2004.
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Bijaya Bhoi ........ Appellant
-Versus-
State of Orissa ........ Respondent
For Appellant: - Mr. Asutosh Tripathy
For Respondent:- Mr. A.K. Beura
Addl. Standing Counsel
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S. K. SAHOO
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Date of Hearing and Judgment- 02.11.2021
...................................................................................................
S. K. SAHOO, J. The appellant Bijaya Bhoi faced trial in the Court of
learned Additional Sessions Judge, Angul in Criminal Trial
(Sessions) No.149 of 2004/36 of 2004 for offences punishable
under sections 498-A/302/304-B of the Indian Penal Code and
section 4 of the Dowry Prohibition Act.
// 2 //
The learned trial Court vide impugned judgment and
order dated 28.03.2006 has been pleased to hold that the
prosecution has not proved the charge under section 302 of the
Indian Penal Code against the appellant and accordingly,
acquitted him of such charge. However, learned trial Court found
the appellant guilty under sections 498-A/304-B of the Indian
Penal Code and section 4 of the Dowry Prohibition Act and
sentenced him to undergo rigorous imprisonment for eight years
under section 304-B of the Indian Penal Code, rigorous
imprisonment for one year and to pay a fine of Rs.100/- (rupees
one hundred), in default, to undergo rigorous imprisonment for
one month more under section 498-A of the Indian Penal Code
and rigorous imprisonment for six months and to pay a fine of
Rs.100/-(rupees one hundred), in default, to undergo rigorous
imprisonment for one month more under section 4 of the Dowry
Prohibition Act and the substantive sentences were directed to
run concurrently.
2. The prosecution case, in short, is that as per the first
information report (Ext.1) lodged by Krushna Nahak (P.W.1)
before the Officer in-charge, Handapa police station, Angul on
09.01.2004 is that his sister Bimala Nahak (hereinafter 'the
deceased') had married to the appellant out of her love affair
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with him a year prior to the date of lodging of the first
information report. Few days after their marriage, the deceased
was subjected to physical and mental cruelty by the appellant in
connection with demand of dowry and the appellant was also
making aspersion against the deceased that she was having illicit
relationship with others. It is stated that in connection with
demand of one cycle and cash, the deceased was subjected to
torture by the appellant. On 09.01.2004 at about 7.00 a.m., the
informant received a message from one Sita Bhoi of his sahi that
the deceased was lying in an unconscious state. Hearing such
news, the informant and others rushed to the house of the
appellant, where they found that the deceased was lying dead on
the floor of the bed room. The appellant was present and he
stated about commission of suicide of the deceased. The
informant suspected that as the deceased was subjected to
torture, the appellant had killed the deceased.
On the basis of the first information report, officer in-
charge of Handapa Police Station registered Handapa P.S. Case
No.5 dated 09.01.2004 for offences punishable under sections
498-A/304-B/302 of the Indian Penal Code and section 4 of the
Dowry Prohibition Act against the appellant. P.W.8 Ratan Kumar
Sahu, who was the officer in-charge of Handapa police station
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after registration of the first information report, took up
investigation of the case. During course of investigation, he
examined the informant and other witnesses, visited the spot and
prepared the spot map (Ext.6) and he held inquest over the dead
body in presence of the witnesses and prepared the inquest
report (Ext.2). He also sent the dead body for post mortem
examination to the District Headquarters Hospital, Angul. P.W.3
Dr. Ajay Chandra Das, who conducted post mortem examination
noticed some bruises and abrasions in and around the neck and
opined the injuries to be ante mortem in nature and submitted
his report (Ext.4) in which it is mentioned that the cause of death
was due to asphyxia and vasovagal shock due to throttling and
time of death was within to 18 to 24 hours from the date and
time conducting the post mortem examination.
The Investigating Officer seized the wearing apparels
of the deceased as per seizure list (Ext.7) on production by the
escorting party and he also seized the dowry articles from the
house of the appellant vide Ext.5, which were released in favour
of the informant under zimanama Ext.3. He also received the
post mortem report of the deceased and forwarded the appellant
to the Court on 11.01.2004 and then handed over the charge of
investigation of the case to Muralidhar Baral (P.W.7), Circle
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Inspector of Police, Athamallik. P.W.7 sent the viscera of the
deceased collected at the time of post mortem examination to
the State Forensic Science Laboratory, Rasulgarh, Bhubaneswar
for chemical examination and on completion of investigation,
charge sheet was placed on 23.03.2004 against the appellant
under sections 498-A/304-B/302 of the Indian Penal Code and
section 4 of the Dowry Prohibition Act.
3. After submission of the charge sheet, the case was
committed to the Court of Session after observing due formality
where the learned trial Court framed charges against the
appellant on 19.08.2004 and since the appellant refuted the
charges, pleaded not guilty and claimed to be tried, the sessions
trial procedure was resorted to prosecute him and establish guilt
of the appellant.
4. During course of trial, in order to prove its case, the
prosecution examined eight witnesses.
P.W.1 Krushna Nahak is the brother of the deceased
and he is the informant in this case and he stated about the
demand of dowry and torture on the deceased due to non-
fulfillment demand of dowry and also stated that the appellant
committed murder of his deceased sister. He is also a witness to
the inquest vide Ext.2.
Page 5 of 19
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P.W.2 Sabitri Nahak is the mother of the deceased
and she stated about the disclosure made by her deceased
daughter before her regarding the demand of dowry of cash of
Rs.5,000/- (five thousand) and one cycle and also torture made
by the appellant due to non-fulfillment of the dowry demand. She
stated that on getting information from Sita, the aunt of the
appellant, she along with P.W.1 proceeded to the house of the
appellant and found injury on the neck of the deceased and the
dead body of the deceased was lying on the floor of the in the
bed room of the appellant.
P.W.3 Ajay Chandra Das is the doctor, who was
working as Orthopaedic Specialist at District Headquarters
Hospital, Angul, conducted post mortem examination of the dead
body of the deceased and noticed some bruises and abrasions in
and around the neck and opined the injuries to be ante mortem
in nature and submitted his report Ext.4 in which it is mentioned
that the cause of death was due to asphyxia and vasovagal shock
due to throttling and time of death was within to 18 to 24 hours
from the date and time conducting the post mortem examination.
P.W.4 Debaraj Naik is the paternal uncle of the
deceased and he stated that when he received the information
about the death of the deceased, he rushed to the house of the
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appellant on the next day of the occurrence and found the dead
body of the deceased in the house of the appellant. He also
stated that the police held inquest over the dead body of the
deceased in his presence and prepared the inquest report vide
Ext.2 and he also found the injuries on the neck of the dead body
of the deceased.
P.W.5 Ajay Bhoi is the labourer and he stated that
one Sita, the aunt of the appellant came and told that the
appellant killed the deceased by pressing her neck and the
deceased died after nine months of her marriage. He also stated
that the appellant physically and mentally tortured the deceased
demand dowry and he also stated that the police held inquest
over the dead body of the deceased in his presence and prepared
inquest report vide Ext.2.
P.W.6 Biranchi Narayan Bhoi is the seizure witness
and he stated that about the seizure of household articles from
the house of the appellant under seizure list Ext.5.
P.W.7 Muralidhar Baral, was the Circle Inspector of
Police, Athamallik, who as per the order of Superintendent of
Police, took charge of investigation of the case from Ratan Kumar
Sahu (P.W.8), the then officer in-charge of Handapa Police
Station. He sent the viscera of dead body of the deceased
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collected through the Medical Officer of Handapa Government
Hospital to the State Forensic Science Labouratory, Rasulgarh for
examination and after obtaining the order of Superintendent of
Police, he submitted charge sheet.
P.W.8 Ratan Kumar Sahu was the Officer in-charge of
Handapa police station. He was the Investigating Officer of the
case and on his transfer, he handed over the charge of
investigation to P.W.7.
The prosecution exhibited seven documents. Ext.1 is
the written first information report, Ext.2 is the inquest report,
Ext.3 is the zimanama, Ext.4 is the post mortem examination
report, Exts.5 and 7 are the seizure lists, Ext.6 is the spot map.
5. The defence plea of the appellant is one of denial.
Defence has examined one witness i.e. D.W.1 Bhaba
Bhoi, who stated that the deceased was living happily with the
appellant after their love marriage and in Khetriya Samaj no
bridegroom demands dowry.
6. The learned trial Court after assessing the evidence
on record has been pleased to hold that the medical evidence
provided by P.W.3 proves that the deceased met with an
unnatural death, which was homicidal in nature. It was further
held that the prosecution evidence clearly indicates that the
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deceased was subjected to harassment and was tortured before
her death. Learned trial Court further held that though the
prosecution has not successfully established the charge under
section 302 of the Indian Penal Code and acquitted the appellant
of such charge but found him guilty under sections 498-A/304-B
of the Indian Penal Code and section 4 of the Dowry Prohibition
Act.
7. Mr. Asutosh Tripathy, learned counsel appearing for
the appellant contended that learned trial Court has not assessed
the evidence on record in its proper perspective and the basic
ingredients of the offence under section 304-B of the Indian
Penal Code is lacking inasmuch as there is no material on record
that soon before the death of the deceased, she was subjected to
physical and mental cruelty in connection with demand of dowry.
Learned counsel further submitted that the marriage between the
appellant and the deceased was a love marriage and the
evidence on record indicates that they were pulling on well and
the parents of the deceased were in visiting terms to the house
of the appellant. It is further submitted that so far as the other
charges are concerned, the appellant was taken into custody in
connection with this case on 11.01.2004 and he was not released
on bail during trial and after filing of the appeal, he was granted
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bail by this Court as per order dated 05.04.2010 and therefore,
he has already undergone substantive sentence of more six years
and two months and therefore, it is a fit case where benefit of
doubt should be extended in favour of the appellant.
8. Mr. A.K. Beura, learned Additional Standing Counsel,
on the other hand, supported the impugned judgment and
contended that the appellant was staying with the deceased at
the relevant point of time and number of bruises and abrasions
were noticed on the person of the deceased as per the post
mortem report, which were opined to be ante mortem in nature
and the cause of death was asphyxia and vasovagal shock due to
throttling and the family members of the deceased have
consistently stated about the physical and mental torture on the
deceased and therefore, it cannot be said that the ingredients of
the offence under section 304-B of the Indian Penal Code are not
satisfied. It is further submitted that the victim was pregnant at
the time of occurrence and the post mortem report indicates that
the gestation period was 14 weeks and if there was nothing
adverse circumstances and if the surrounding circumstances was
not hostile, then the deceased could not have died committing
suicide which plea has been taken by the appellant but the same
has been negatived by the post mortem report findings. Learned
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counsel further submitted that in view of the clinching materials
available on record, no infirmity can be found with the impugned
judgment and therefore, the appeal should be dismissed.
9. Coming to the ingredients of the offence under
section 304-B of the Indian Penal Code, the essential ingredients
are as follows:-
(i) The death of a woman was caused by
burns or bodily injury or had occurred
otherwise than under normal
circumstances;
(ii) Such death should be occurred within
seven years of her marriage;
(iii) The deceased was subjected to cruelty or
harassment by her husband or by any
relative of her husband;
(iv) Such cruelty or harassment should be for
or in connection with the demand of
dowry; and
(v) Such cruelty or harassment of the
deceased should be soon before her
death.
Section 113(B) of the evidence Act is also relevant
which deals with presumption as to the 'dowry death'.
Presumption under section 113(B) is a presumption of law. On
the proof of essential ingredients of offence under section 304-B
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of the Indian Penal Code, it becomes obligatory on the part of the
Court to raise presumption that the accused committed 'dowry
death'. In case of Raman Kumar -Vrs.- State of Punjab
reported in (2009) 16 Supreme Court Cases 35, it has been
held as follows:-
"16. A conjoint reading of Section 113B of the
Evidence Act and Section 304-B IPC shows that
there must be material to show that soon
before her death the victim was subjected to
cruelty or harassment. The prosecution has to
rule out the possibility of a natural or
accidental death so as to bring it within the
purview of the "death occurring otherwise than
in normal circumstances". The expression
"soon before" is very relevant where Section
113B of the Evidence Act and Section 304-B
IPC are pressed into service. The prosecution
is obliged to show that soon before the
occurrence, there was cruelty or harassment
and only in that case, presumption operates.
Evidence in that regard has to be led in by the
prosecution. "Soon before" is a relative term
and it would depend upon the circumstances of
each case and no strait jacket formula can be
laid down as to what would constitute a period
of soon before the occurrence. It would be
hazardous to indicate any fixed period, and
that brings in the importance of a proximity
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test both for the proof of an offence of dowry
death as well as for raising a presumption
under Section 113B of the Evidence Act. The
expression "soon before her death" used in the
substantive Section 304-B IPC and Section
113B of the Evidence Act is present, with the
idea of proximity test. No definite period has
been indicated and the expression "soon
before" is not defined. A reference to the
expression "soon before" used in Section 114
Illustration (a) of the Evidence Act is relevant.
It lays down that a court may presume that a
man who is in the possession of goods soon
after the theft, is either the thief who has
received the goods knowing them to be stolen,
unless he can account for his possession. The
determination of the period which can come
within the term "soon before" is left to be
determined by the courts, depending upon
facts and circumstances of each case. Suffice,
however, to indicate that the expression "soon
before" would normally imply that the interval
should not be much between the cruelty or
harassment concerned and the death in
question. There must be existence of a
proximate and live link between the effect of
cruelty based on dowry demand and the death
concerned. If the alleged incident of cruelty is
remote in time and has become stale enough
not to disturb the mental equilibrium of the
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woman concerned, it would be of no
consequence."
In the case of Ashok Kumar -vrs.- State of
Haryana reported in (2010) 12 Supreme Court Cases 350,
it has been held as follows:-
"14. We have already referred to the
provisions of Section 304-B of the Code and
the most significant expression used in the
section is 'soon before her death'. In our view,
the expressions 'soon before her death' cannot
be given a restricted or a narrower meaning.
They must be understood in their plain
language and with reference to their meaning
in common parlance. These are the provisions
relating to human behaviour and, therefore,
cannot be given such a narrower meaning,
which would defeat the very purpose of the
provisions of the Act. Of course, these are
penal provisions and must receive strict
construction. But, even the rule of strict
construction requires that the provisions have
to be read in conjunction with other relevant
provisions and scheme of the Act. Further, the
interpretation given should be one which would
avoid absurd results on the one hand and
would further the object and cause of the law
so enacted on the other.
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15. We are of the considered view that the
concept of reasonable time is the best criteria
to be applied for appreciation and examination
of such cases. This Court in the case of Tarsem
Singh v. State of Punjab: AIR 2009 SC 1454,
held that the legislative object in providing
such a radius of time by employing the words
'soon before her death' is to emphasize the
idea that her death should, in all probabilities,
has been the aftermath of such cruelty or
harassment. In other words, there should be a
reasonable, if not direct, nexus between her
death and the dowry related cruelty or
harassment inflicted on her.
Similar view was expressed by this Court
in the case of Yashoda v. State of Madhya
Pradesh (2004) 3 SCC 98, where this Court
stated that determination of the period would
depend on the facts and circumstances of a
given case. However, the expression would
normally imply that there has to be reasonable
time gap between the cruelty inflicted and the
death in question. If this is so, the legislature
in its wisdom would have specified any period
which would attract the provisions of this
Section. However, there must be existence of
proximate link between the acts of cruelty
along with the demand of dowry and the death
of the victim. For want of any specific period,
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the concept of reasonable period would be
applicable. Thus, the cruelty, harassment and
demand of dowry should not be so ancient
whereafter, the couple and the family
members have lived happily and that it would
result in abuse of the said protection. Such
demand or harassment may not strictly and
squarely fall within the scope of these
provisions unless definite evidence was led to
show to the contrary. These matters, of
course, will have to be examined on the facts
and circumstances of a given case."
The informant (P.W.1) has stated that the marriage
of the deceased with the appellant was a love marriage. He
further stated that while a marriage function was going on in
their village, the appellant took away the deceased from the
marriage function accepting her as his wife. He further stated
that the appellant was a labourer. He further stated that the
deceased was physically and mentally tortured by the appellant
demanding a cycle and cash of Rs.5,000/- (rupees five thousand)
and that they were unable to satisfy the demand of the
appellant.
P.W.2, who is the mother of the deceased, also
stated that the appellant demanded cash of Rs.5,000/- (rupees
five thousand) and one cycle towards dowry and since the said
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demand was not satisfied, the appellant tortured the deceased
both physically and mentally, which the deceased complained
before them. However, in cross-examination, she has stated that
the marriage between the deceased and the appellant was a love
marriage and in their caste, the bridegroom does not demand
dowry.
P.W.4 is the paternal uncle of the deceased and he
has stated that the appellant married the deceased out of love
and the appellant was pulling on well with the deceased and the
parents of the deceased were visiting the house of the appellant.
P.W.5 Ajay Bhoi has also stated that the appellant
was physically and mentally torturing the deceased for demand
of dowry and in cross-examination, he has stated that he had
seen the appellant assaulting the deceased.
Therefore, the evidence of the aforesaid witnesses,
particularly P.W.1, P.W.2 and P.W.5 indicate that though it was a
love marriage but demand was raised by the appellant for a cycle
and cash of Rs.5,000/-(rupees five thousand) towards dowry and
since the same was not fulfilled by the family members of the
deceased, the deceased was subjected to physical and mental
torture.
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However, as rightly pointed out by the learned
counsel for the appellant that there are no materials on record
that soon before the death the deceased, she was subjected to
cruelty in connection with demand of dowry, but the material on
record, no doubt proves that the death of the deceased took
place within seven years of marriage which is as one of the
essential ingredients of section 304-B of the Indian Penal Code
and in view of the evidence of the doctor, the learned trial Court
has rightly held that the prosecution has proved that the
deceased met an unnatural death, which was homicidal in nature.
However, when the appellant has been acquitted of the charge
under section 302 of the Indian Penal Code and such acquittal
has not been challenged by the State and the evidence is lacking
that soon before the death of the deceased, she was subjected to
cruelty or harassment by the appellant in connection with
demand of dowry, I am of the humble view that the ingredients
of the offence under section 304-B of the Indian Penal Code are
not satisfied.
So far as the other offences under section 498-A of
the Indian Penal Code and section 4 of the Dowry Prohibition Act
under which the appellant was found guilty are concerned, there
are ample materials available on record and the finding of the
Page 18 of 19
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learned trial Court that the prosecution has successfully
established such charges is quite justified.
In view of the foregoing discussion, the conviction of
the appellant under section 304-B of the Indian Penal Code is set
aside and the conviction of the appellant under section 498-A of
the Indian Penal Code and section 4 of the Dowry Prohibition Act
and the sentence passed for such offences stands confirmed.
Accordingly, the Jail Criminal Appeal is partly allowed.
Lower Court Records with a copy of this judgment be
sent down to the learned trial Court forthwith for information and
necessary action.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 2nd of November 2021/P.K. Nayak/Jagabandhu Page 19 of 19