Orissa High Court
Suresh Chandra Barik vs State Of Orissa on 29 September, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.R.A. No.82 of 1993
(In the matter of an application under Section 374(2) of the
Criminal Procedure Code.)
Suresh Chandra Barik .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case:-
For Appellant : Mr. D. Nayak, Sr. Advocate, S.
Swain, R.C. Swain, P.K. Mishra,
D.P. Pradhan, A. Ahed
For Respondent : Mr. T.K. Praharaj,
Learned Standing Counsel
Appeared in this case:-
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 13.09.2023 / date of judgment :29.09.2023 A.C. Behera, J. This is an appeal under Section 374(2) of the Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.'), which was preferred by the appellant Suresh Chandra Barik along with his co- appellant Uma Dei, (who is his mother) challenging the judgment of conviction and sentence passed on dated 15.02.1993 in S.T. No.25 of 1991 by the learned Additional Sessions Judge, Kendrapara, wherein, he (appellant) Suresh Chandra Barik) along with mother (appellant No.2) // 2 // both were convicted for the offence under Section 498-A of the I.P.C., 1860 and were sentenced to undergo R.I. for two years and to pay a fine of Rs.1,000/- in default to under R.I. for three months each for the offence under Section 498-A of the I.P.C., 1860.
When during the pendency of this appeal, the appellant no.2-Uma Dei (mother of the present appellant) expired, for which, as per order dated 15.12.2022, the appeal against the appellant No.2 has already been abated. Therefore, the judgment of this appeal is to be passed only in respect of the appeal filed by the appellant no.1 Suresh Chandra Barik.
2. The accused/appellant Suresh Chandra Barik along with appellant no.2 (who has expired during the pendency of the appeal) were the accused persons before the learned trial court below, i.e. before the court of learned Additional Sessions Judge, Kendrapara in S.T. No.95/91 / 25/91, wherein they were facing trial having been charged under Section 304-B of the I.P.C., 1860 on the allegation of commission of dowry death of Urmila being here husband and mother-in-law respectively.
The case of the prosecution before the learned trial court below, in S.T. No.25 of 1991 in nutshell against the accused persons including the accused / appellant Suresh Chandra Barik was that, on dated 10.03.1988, his marriage with his wife Urmila was solemnized as per Hindu Rites and Customs. After the marriage of Urmila, she led her conjugal life with the accused/appellant as wife and husband in her matrimonial house, i.e., in the house of the accused/appellant at village Santhapura. In that marriage of Urmila with accused/appellant, the accused persons including the accused/appellant had demanded cash of Rs.7,000/- along with some articles as dowry. The father of Urmila, i.e., Nisamani Mohapatra had paid Rs.5,000/- out of demanded amount of Rs.7,000/- to the accused // 3 // persons, but he had not paid the rest demanded dowry money of Rs.2,000/-, but he (father of Urmila) had promised to pay the same later. So, after marriage, the accused/appellant along with his mother compelled Urmila to bring the balance dowry money of Rs.2,000/- from her father and when their said demand was not fulfilled, the accused/appellant along with his co-accused, i.e., his mother started torturing Urmila by abusing her and keeping her with starvation. Due to such torture by the accused/appellant and his mother, Urmila was going to her parents house from her in-laws house and she was disclosing the same before her parents family members. Four to five days before 21.05.1990, Urmila had come to her in-laws house from her parents house. But, surprisingly on 21.05.1990, the father of Urmila, i.e., Nisamani Mohapatra got information that, her daughter Urmila is undergoing treatment at Kendrapara Hospital sustaining severe burn injuries. For which, Nisamani Mohapatra(father of Urmila) immediately came to Kendrapra Hospital and found that, his daughter Urmila is undergoing treatment at Kendrapara Hospital remaining in the Hospital bed for her serious burning injuries. But on its next day, i.e., 22.05.1990 Urmila expired at the hospital on being succumbed to her burn injuries.
After death of Urmila at the hospital bed, a U.D. case vide Kendrapara P.S. U.D. Case No.29 of 1990 was registered by the OIC Kendrapara P.S. on the basis of the casualty memo of the Medical Officer of Kendrapara hospital and direction was given to the S.I., Birendra Kumar Mukharjee of the said Kendrapara Police Station to enquire into that U.D. Case. Accordingly, the S.I. Birendra Kumar Mukharjee proceed with the enquiry of that U.D. Case.
During the course of enquiry, the Enquiring Officer, i.e., S.I., Birendra Kumar Mukharjee held inquest over the dead body of Urmila, // 4 // prepared inquest report vide Ext.12, examined the witnesses, visited the spot village Santhapura, examined other witnesses and after returning to the hospital from there, he (Enquiring Officer) allowed the accused/appellant, (who is the husband of the deceased) to take the dead body of the deceased for its disposal. Subsequent, thereto, the father of the deceased, i.e., Nisamani Mohapatra lodged a written F.I.R. vide Ext.9 before the OIC Kendrapara Police Station on dated 07.06.1990 alleging that, the accused persons, i.e., accused/appellant (husband) and her mother-in-law (Uma Dei) have killed his daughter Urmila by setting the fire on her body due to non-fulfillment of their rest demanded dowry, i.e., Rs.2,000/-.
3. Basing upon such F.I.R. vide Ext.9, the OIC of Kendrapara Police Station, registered Kendrapra P.S. Case No.213 of 1990 under Section 498-A of the I.P.C., 1860 and Section 4 of the D.P. Act, 1961 against the accused persons and he himself took up the investigation of the case.
During investigation, he (I.O.) seized one Inland letter vide Ext.10 said to have been written by the deceased Urmila, one wooden bed cot and other articles from the house of the accused/appellant through seizure list vide Ext.13 and released the same in the zima of the informant by executing Ziminama vide Ext.14, in his favour, arrested both the accused persons including the accused/appellant and forwarded them to the court and issued requisition for the medical examination of the accused/appellant, who had sustained injuries during the alleged incident.
The OIC, Susanta Kumar Chand (I.O.) handed over the charge of investigation of the case to one S.I., S. Nisanka of said Kendrapara Police Station on dated 25.07.1990 due to his transfer from that Police Station. Then, after completion of the rest part of the investigation of the case, the // 5 // S.I., S. Nisanka submitted charge-sheet against the accused persons under Section 304-B of the I.P.C., 1860.
Accordingly, after commitment of the case to the court of Sessions and on transfer of the same to the court of learned Additional Sessions Judge, Kendrapara, both the accused persons being the husband and mother-in-law of the deceased were facing trial in S.T. No.25 of 1991 in the said court, i.e., in the court of learned Additional Sessions Judge, Kendrapara having been charged under Section 304-B of the I.P.C., 1860 on the allegation of commission of dowry death of Urmila.
4. The plea of the defence was one of complete denial to the allegations of dowry death alleged on behalf of the prosecution against the accused persons.
The specific plea of the defence relating to the cause of death of the deceased Urmila, during trial before the leaned trial court below was that, on 21.05.1990 Urmila was cooking food in their house wearing a Polyster saree. During the course of cooking, accidentally fire caught on her Polyster Saree and she (Urmila) sustained burn injuries on her person. When her husband, i.e., accused/appellant saw the same, then, he accused/appellant tried to extinguish the fire from the body of his deceased wife Urmila in order to save her and during the course of extinguishing the fire from the body of Urmila, the accused/appellant Suresh Chandra Barik had also sustained injuries on his person. Thereafter, the accused persons had taken the injured Urmila to the nearest Kendrapara Hospital for her treatment, but, in spite of their best efforts to save the life of Urmila, her life could not be saved, but, she (Urmila) expired on being succumbed to her burn injuries. The accused persons have not set the fire on the body of Urmila, for which, the // 6 // accused persons cannot be made liable for the offence under Section 304- B of the I.P.C., 1860.
Further case of the defence was that, after the death of Urmila, her father Nisamani Mohapara wanted for return of the gift articles, those were provided at the time of the marriage of his daughter Urmila and when the accused persons did not comply such demand of Nisamani Mohapatra immediately, then out of anger, the said Nisamani Mohapatra (father of the deceased) has foisted the case against the accused persons by lodging F.I.R. alleging false allegations against them.
5. In order to substantiate aforesaid charge under Section 304-B of the I.P.C., 1860 against the accused persons, prosecution had examined altogether 14 numbers of witnesses as P.Ws.1 to 14, but whereas in support of above plea of the defence, the defence had examined one witness, i.e., to the neighbor of the accused persons as D.W.1.
6. Out of 14 witnesses of the prosecution, P.W.3 is the informant, (who is the father of the deceased). P.W.1 is his daughter. P.W.2 is the wife of the P.W.3. P.Ws.10 and 11 are two sons of P.W.3. P.W.4 is the nephew of P.W.3. P.W.5 is the maternal uncle of the deceased. P.W.7 is the priest of the marriage of the deceased. P.W.9 is the mediator of her marriage. P.Ws. 6 and 8 are the witnesses to the seizure lists. The rest three witnesses, i.e., P.Ws.12, 13 and 14 are the police officials. P.W.13 is the Enquiring Officer of the Kendrapara P.S. U.D. Case No.29 of 1990, P.W.14 is the first Investigating Officer and P.W.12 is last Investigating Officer, who had submitted the charge-sheet against the accused persons on completion of the investigation.
7. After conclusion of hearing and on perusal of the materials and evidence available in the record, the learned trial court below found the // 7 // accused persons not guilty for the charge/offence under Section 304-B of the I.P.C., 1860 and acquitted them (both the accused persons) from the said charge/offence under Section 304-B of the I.P.C., 1860 by assigning the reasons in para nos.8 and 9 of the judgment that, the availability of the burn injuries on the palm and fingers of the accused/appellant Suresh Chandra Barik is suggestive of the fact that, the deceased Urmila came under ablazed fire accidentally. So, the death of Urmila for burn injuries may be of accidental fire. That apart, prosecution has also become failure to establish one of the essentials of Section 304-B of the I.P.C., 1860, i.e., that, soon before her death, deceased Urmila was subjected to cruelty by the accused persons.
By, assigning the above reasons, the learned trial court below acquitted both the accused persons from the offence under Section 304-B of the I.P.C., but whereas, in the said impugned judgment, the learned trial court below held both the accused persons guilty for the offence under Section 498-A of the I.P.C., 1860, though they were not charged for the same and convicted them both thereunder and awarded sentence against them as stated above by observing in para no.11 of the judgment passed on dated 15.02.1993 in S.T. No.95 of 1991 that, the evidence of the witnesses read with (Ext.10) clearly shows that, the deceased Urmila was subjected to cruelty, harassment in her matrimonial house at the instance of the accused persons.
8. On being aggrieved with the said judgment of conviction and sentence passed on dated 15.02.1993 in S.T. No.95 of 1991 by the learned Additional Sessions Judge, Kendrapara against the accused persons under Section 498-A of the I.P.C., they (both the convicted accused persons) had preferred this appeal being the appellants by challenging the same after taking several grounds in their appeal memo.
// 8 // Due to abatement of appeal vide order dated 15.12.2022 against the accused/appellant No.2 for her death, I have already heard from the learned counsel for the appellant no.1 Suresh Chandra Barik and also from the learned Additional Standing Counsel for the State and so also have perused the materials and evidence available in the record.
9. Basing upon the case of the prosecution, as narrated above, plea of the defence, materials and evidence available in the record, the rival submissions of the learned counsels of both the sides and the grounds taken by the appellant in his appeal memo, the crux of this appeal is:-
Whether impugned judgment of conviction and order of sentence passed on dated 15.02.1993 in S.T. No.95 of 1991 under Section 498-A of the I.P.C., 1860 by the learned Additional Sessions Judge, Kendrapara against the accused/appellant Suresh Chandra Barik is sustainable under law?
It appears from the record that, during trial before the learned trial court below, none of the witnesses of the prosecution including the parents family members of the deceased Urmila, i.e., P.Ws.1, 2, 3, 10 and 11 has deposed stating any specific day, date and time of the alleged tortures by the accused/appellant on his deceased wife Urmila. Their allegations through their respective evidence in the court during trial regarding the alleged tortures by the accused on his deceased wife Urmila are general and omnibus in nature without any specific day, date and time. As such, none of the witnesses of the prosecution are able to testify any instance of specific day, date and time of torture on the victim by the accused/appellant.
10. One of the essentials of Section 304-B of the I.P.C. (in respect of which, the accused/appellant was facing trial before the leaned trial court // 9 // below) is that, the deceased must have been subjected to cruelty or harassment by her husband or any relatives of her husband for or in connection with any demand of dowry soon before her death.
11. When the learned trial court below has acquitted the accused persons from the charge/offence under Section 304-B of the I.P.C., 1860, then it pre-supposes that, prosecution has not become able to establish any cruelty, torture or harassment by the accused persons on the deceased Urmila for or in connection with any demand of dowry soon before her death.
It appears from the impugned judgment and the statements of the accused/appellant recorded under Section 313, Cr.P.C. that, though the learned trial court below has used the contents of Ext.10 (which is an Inland Letter) as incriminating circumstances against the accused/appellant for holding him guilty under Section 498-A of the I.P.C. stating that, the contents of the Ext.10 are showing tortures on the deceased by the accused persons for non-fulfillment of demand of dowry, but, it is curious enough that, during the course of recording the statements of the accused/appellant under Section 313 of the Cr.P.C., not even a single question has been asked to the accused/appellant by the learned trial court below to explain about the contents of the so-called written Inland Letter vide Ext.10.
12. The propositions of law, on that aspect, when the contents of any document like the contents of Ext.10 in this case at hand will have been used against an accused by the court in the judgment without putting any question about the same during the course of recording the statements of the accused under Section 313, Cr.P.C. to explain has already been clarified in the ratio of the following decision:-
// 10 // 2009(I) OLR-467 : State of Orissa vrs. Anit Singh alias Rabindra and others - Cr.P.C., 1973 - Section 313 --
"A relevant evidence, whether direct or circumstantial cannot be used against the accused, unless it has been confronted to him in course of examination under Section 313, Cr.P.C. In the present case, trial court did not put any question to either of the accused persons on the evidence emerging from Exts.33 and 34-- Held evidence in Exts.33 and 34 cannot be used against the appellants (accused persons)."
13. When without providing any opportunity to the accused/appellant to explain the alleged incriminating circumstances indicated in the contents of Ext.10 at the time of recording of the statements of the accused under Section 313 of the Cr.P.C., 1973, the learned trial court below has used the contents of Ext.10 as incriminating circumstances against the accused/appellant in the impugned judgment, then by applying the principles or law enunciated in the ratio of the aforesaid decision, it is held that, the use of the contents of that Ext.10 against the accused/appellant in the impugned judgment by the learned trial court below for holding him guilty on the basis of the contents of the said Ext.10 is contrary to the law. Therefore, the contents of the Ext.10 is excluded from the zone of consideration, because the same cannot be used in any manner against the accused/appellant for the reasons stated above.
14. As per the discussions and observations made above, when the contents of Ext.10 has been excluded from the zone of consideration and when the allegation of torture on the deceased alleged by the parents // 11 // family members of the deceased including the informant (P.W.3) against the appellant are general and omnibus in nature without any specific day, date and time and when none of the witnesses of the prosecution are able to testify any particular instance of torture on deceased Urmila stating any particular day, date and time and when due to acquittal of the accused/appellant from the offence under Section 304-B of the I.P.C., 1860, allegations relating to the torture for or in connection with any demand of dowry has been failed to be established and when the disturbances in the life of the deceased/victim in her matrimonial house are held to be due to ordinary wear and tear of matrimonial life, then at this juncture, the allegations alleged on behalf of the prosecution through the evidence of P.Ws.1, 2, 3, 4, 5, 10 and 11 and Ext.10 would not constitute cruelty as defined under Section 498-A of the I.P.C. against the accused/appellant. Because, it is my considered view that, mere omnibus statements regarding demand of money does not ipse facto make out a case under Section 498-A of the I.P.C., That apart, conviction for cruelty or dowry death cannot be sustained, when there is no firm evidence on behalf of the prosecution that, for non-fulfillment of demand of dowry, victim was being tortured or treated with cruelty.
15. When there is no specific/definite evidence in this case at hand regarding demand of dowry, torture or cruelty to the deceased wife by the accused/appellant with the proof of specific day, date and time of the alleged torture or cruelty on her, then, it is held that, prosecution has not become able to establish the offence under Section 498-A of the I.P.C., 1860 against the appellant Suresh Chandra Barik beyond all reasonable doubt.
16. On analysis of the materials available on record as per the discussions and observations made above, it is held that, the impugned // 12 // judgment of conviction and order of sentence passed by the learned trial court below against the accused/appellant under Section 498-A of the I.P.C., 1860 cannot be sustainable under law. Therefore, there is justification under law for making interference with the same through this appeal filed by the appellant.
17. So, there is merit in the appeal of the accused/appellant No.1 (Suresh Chandra Barik), the same must succeed.
18. Therefore, the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentence passed by the learned Additional Sessions Judge, Kendrapara on dated 15.02.1993 in S.T. No.95 of 1991 / 25 of 1991 against the accused/appellant (Suresh Chandra Barik) under Section 498-A of the I.P.C., 1860 is set aside. He (accused/appellant Suresh Chandra Barik) is acquitted from the offence under Section 498-A of the I.P.C., 1860 on the ground of benefit of doubt and accordingly, he (accused/appellant Suresh Chandra Barik) is directed to be set at liberty forthwith after being discharged from the bail bonds. The appeal is disposed of finally.
( A.C. Behera ) Judge Orissa High Court, Cuttack The 29 th of September, 2023/ Jagabandhu, P.A.