Orissa High Court
Dhani @ Dhaneshwar Sahu And Anr. vs State Of Orissa on 7 September, 2007
Equivalent citations: I(2008)DMC304
Author: I. Mahanty
Bench: I. Mahanty
JUDGMENT I. Mahanty, J.
1. The present appeal has been filed by one Dhani @ Dhaneswar Sahu, along with one Suka @ Sukuti Sahu, appellant Nos. 1 and 2 respectively who are, in fact, father and son. The appellants faced their trial in the Court of Addl. Sessions Judge, Jajpur in ST Case No. 29 of 1998/ 2 of 1998 for the offences punishable under Sections 498A and 306 of the Indian Penal Code and were ultimately convicted under Section 498A, I.P.C. and Section 306 read with Section 511, I.P.C. and were sentenced to undergo R.I. for three years and to pay a fine of Rs. 5,000 each, in default to undergo R.I. for further three months for the offence under Section 498A, I.P.C. and were further sentenced to undergo R.I. for five years each for the offence under Section 306 read with Section 511, I.P.C. and both the sentences were directed to run concurrently.
2. The prosecution case, in brief, is that appellant No. 1, married one Kamini @ Kanak on 14.7.1987. Before the marriage took place there was a demand of dowry from the side of the appellants. It is further found that one Bansidhar Sahu had acted as mediator for the marriage who settled the dowry at Rs. 4,000 in cash in lieu of a television set and in addition a sum of Rs. 3,000 for the dress of Appellant No. 1. apart from that Kamini was given gold ornaments worth two and half tolas. It is alleged that the appellant No. 1 received dowry as per the settlement but at the marriage altar, both the appellants demanded a table fan in addition to the items noted hereinabove. The mother of Kamini expressed her inability to provide a table fan for which appellant No. 1 did not take 'Pakhal' (traditional post-marriage breakfast) in his in-law's house and on the day after the marriage, went away to his house taking his wife-Kamini.
The further case of prosecution is that Kamini was pressurized by the appellants to bring the table fan or in lieu thereof 50 kgs. of brass material. Since neither the table fan nor any brass material was given, Kamini was subjected to torture on many occasions. Kamini had sent information to her mother through various persons such as Dharmananda Sahu, Batakrushna Sahu, Achyuta Mallick and others. Kamini's mother sent representatives to settle the matter but since the matter was not resolved, appellant No. 2 (father-in-law) separated appellant No. 1 and Kamini from his family kitchen. It is the further case of prosecution that after death of Kamini's mother-in-law, her maternal uncle and brother visited their house and tried to unite appellant No. 1 and appellant No. 2 but all such efforts were in vain. It is further alleged that in the month of Pousa, Kamini had come to visit her mother and narrated everything to her as well as her brother about the torture that was inflicted on her. After ten days of her stay in her paternal home, her brother Achyuta Sahu accompanied Kamini to her matrimonial home. On their arrival, both the appellants humiliated Kamini and her brother Achyuta Sahu and threatened her for the consequence for not bringing the table fan and asked Achyuta to take Kamini back, but Achyuta managed to leave her in the house of the appellant.
It is alleged that 20 days thereafter, appellant No. 1 assaulted Kamini and provoked her into committing suicide by suggesting to her to commit suicide since her mother could not provide the table fan. On that very day, i.e., 15.1.1986, Kamini attempted suicide by taking acid. The mother of Kamini received information from other sources that her daughter had been admitted as an indoor patient in the SCB Medical College Hospital, Cuttack. On her arrival in the hospital, it is alleged that Kamini expressed before her, that she had been instigated into taking acid, for not giving table fan. Ultimately, Kamini expired on 6.3.1986, but the information of her death was not communicated to her mother. After learning about the death of Kamini, her mother Bhagyabati Bewa (P.W. 1) lodged an F.I.R. on 14.3.1986 alleging that the appellants had threatened her not to initiate any police action. On the basis of such written report, investigation was taken up by the police and charge-sheet was submitted.
3. The defence plea is one of complete denial. It is alleged that they had never ill-treated Kamini and had been falsely implicated in the case at the instance of Dr. Rudranarayan Prusty (P.W.5) and Dharmananda Sahu (P.W. 9, brother of P.W. 1).
4. The learned Sessions Judge on a consideration of the entire evidence produced in course of trial, relied upon the evidence of doctors who had treated the deceased i.e. P.Ws. 17, 18 and 21 came to hold that, the deceased died due to intestinal perforation due to septe-semic shock and the perforation was because of round worm infestation and that the death of the deceased was not due to ingestion of Sulphuric Acid. The aforesaid conclusion of the trial Court was based upon the evidence of P.Ws. 17, 18 and 21 as well as Exts. 5 and 6 which reveal that the deceased was discharged from the hospital as her condition was satisfactory and her health condition has improved and, therefore, "it cannot be said that she committed suicide, as suicide by itself is a completed action of killing oneself."
Having come to the aforesaid conclusion as noted hereinabove, the Trial Court thereafter came to hold that the act of taking of Acid by the deceased was not on her own sweet will, but being tortured to assault for a fan and due to the use of provocating words by the appellants by asking the deceased to consume Acid in course of assault is certainly a forceful imposition to the mind of Kanak @ Kamini and quoted as follows:
Thus, the accused abetted the attempt to commit suicide by Kanak @ Kamini.
It was further held that the deceased might have died due to intestinal perforation due to worms, but, nevertheless the cumulative effect of ingestion of Acid must have added and contributed to her death, cannot be altogether ruled out and, therefore, while placing reliance on Ext. 5, the Bedhead ticket the learned Sessions Judge came to hold that the abetment of the attempt to commit suicide stands squarely proved. The Sessions Judge further held that the accused persons have not been specifically charged under Section 306 read with Section 511, I.P.C. but Section 511, I.P.C. being a minor offence than the offence under Section 306, I.P.C. held that no prejudice will be caused to the accused for the lack of charge under Section 306 read with Section 511, I.P.C. and held the accused guilty of abetment of the attempt of suicide by the deceased.
Apart from the above, on analysis of the evidence the Sessions Judge came to hold that the cruelty inflicted on the deceased from the date of marriage till her taking of Acid has been amply proved and the accused persons are liable for the offence under Section 498A, I.P.C.
5. Learned Counsel for the appellants submitted that the defence plea is of two folds. Firstly, he submitted that the charge under Section 306 read with Section 511, I.P.C. is not available in law inasmuch as the Trial Court having come to hold that death of the deceased having found not to be suicidal neither Section 306 nor Section 511 of the I.P.C. would at all apply. Secondly, the Trial Court erred in accepting the prosecution evidence in so far as the demand of dowry is concerned as the witnesses are all interested witnesses and, further, due to inordinate delay in lodging the F.I.R. which, according to the Learned Counsel for the appellants the prosecution has failed to provide any satisfactory explanation.
6. On the other hand, learned Addl. Government Advocate supported the order of conviction passed by the Trial Court and submitted that there is no bar under the Indian Penal Code to hold the person liable for an offence under Section 306 read with Section 511, I.P.C. stating that the instigation and provocation by the appellants was the cause for the deceased to attempt suicide by ingestion of Sulphuric Acid. Learned State Counsel submitted that although the evidence of the doctors suggest that the death of the deceased did not occur due to ingestion of Sulphuric Acid, yet since the instigation and provocation by the appellants, led the deceased to attempt suicide, even though such attempt to commit suicide failed, their action is covered under Section 306 read with Section 511, I.P.C.
7. The appellants have been convicted both under Section 498A and 306 read with Section 511, I.P.C. Section 498A provides as follows:
498A. Husband or relative of husband of a woman subjecting her to cruelty--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to file.
Explanation--For the purpose of this section, 'cruelty' means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical), of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
8. On a scrutiny of the evidence produced in course of trial, P.W. 1 Bhagyabati Bewa (the mother of the deceased), P.W. 2 Achyttta Sahu (the brother of the deceased) and P.W. 3 Dhaneswar Sahu (a marriage invitee), P.W. 6 Babaji Sahu (an invitee to the negotiation of marriage), P.W. 9, Dharmananda Sahu (an invitee to the marriage), P.W. 10 Chakradhara Panda (marriage priest and a witness to part payment of dowry consideration), P.W. 11 Banshidhar Sahu (the mediator of marriage) have clearly gave evidence about demand and payment of dowry before marriage and at the time of marriage.
Insofar as demand of dowry after the marriage is concerned, evidence of P.Ws. 1, 2 and 4 who witnessed torture on the deceased and the demand of table fan, P.W. 7, a witness to assault on the deceased for the demand of table fan, clearly establish the fact that even after marriage, there was demand of table fan and brass utensil and involvement of physical and mental cruelty on the deceased.
9. The defence plea of being falsely implicated in the case at the instance of P.W. 5 and P.W. 9 fails and inasmuch as in course of trial, no evidence of such false implication of the accused subsists and on the contrary, the witnesses named herein clearly gave direct and cogent evidence of the fact that there was demand for additional dowry at the stage of negotiation and marriage, further demand of dowry at the marriage altar and continual demand for further dowry after the marriage. The evidence also clearly establishes the fact that the deceased was physically and mentally tortured for not procuring the additional dowry as demanded by the appellants and, therefore, I am of the view that the prosecution has established the offence under Section 498A, I.P.C. and that such action on the part of the appellants was clearly an wilful act of such a nature that was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman and further that harassment to the deceased was clearly with a view to coerce her as well as her widow mother to meet a further unlawful demand of dowry and, therefore, I am of the view that the charge under Section 498A, I.P.C. is sustained.
10. It is incumbent at this juncture to take into account the conviction of the appellants under Section 306 read with Section 511, I.P.C. Those two Sections provides as fallows:
306. Abetment of Suicide--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment--Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provisiom is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.
Section 306, as noted hereinabove, clearly applies only when a person has committed suicide. In the present case at hand, evidences P.Ws. 17,18 and 21 clearly established the contrary, inasmuch as their evidences clearly suggest that the deceased died due to intestinal perforation due to septe-semic shock and the perforation was because of round worm infestation and further that the death of the deceased was not because of Sulphuric Acid ingestion. In fact, Exts. 5 and 6 clearly reveal that the deceased had been admitted to the hospital after ingestion of Sulphuric Acid and was discharged from hospital after her condition improved. It is equally important to take note of Ext. 10 which clearly shows that in the opinion of the treating physician, the cause of death of the deceased was due to septe-cemic. The statements recorded in Ext. 10 get support from the evidence of the treating physicians that the deceased died due to intestinal perforation due to septe-cemic shock and the perforation was because of round worm infestation. This admitted fact alone can establish that the death of deceased-Kanak @ Kamini was not on account of ingestion of Sulphuric Acid, but due to septe-cemia caused by round worm infestation. Section 306 is clearly a special offence under the Indian Penal Code and is applicable only to abetment of suicide and, therefore, can only apply in a case when a suicide has been committed. Section 306 can have no role to play in a case where no suicidal death occurs.
11. Since Section 306 has no role to play in the facts of the present case, obviously, therefore Section 511 cannot and does not be pressed into service since the same would only apply to a person who attempted to commit an offence punishable by this Code with imprisonment for life or imprisonment where an attempt to commit an offence is made and where no express provision is made by this Code for the punishment of such attempt; since Section 309 itself is a provision for "abatement" and the code having provided for the same', reliance cannot therefore be placed on Section 511.
12. In the present case, as noted hereinabove, death has not been found to be suicidal and in absence of a suicide, Section 306 itself has no application. The Trial Court has come to the conclusion that the appellants are guilty of "the abetment of commission of attempted suicide by Kamini". Insofar as attempted suicide is concerned, Section 309, I.P.C clearly comes to operation. Attempt to commit suicide applies to a person who attempts to commit suicide and does any act towards the commission of such offence and Section 109 provides for punishment for abetment of any such offence. Therefore, since the Code contains a provision for abetment to an attempt to commit suicide, reliance placed by the Trial Court on Section 511 is wholly without jurisdiction and inappropriate. For the purpose of clarity, I am of the considered view that neither Section 306 nor Section 511 has any applicability to the facts of the present case and, therefore, am in respectful agreement with the contention advanced by the Learned Counsel for the appellants on this contention.
13. Having come to the aforesaid conclusion, it is my onerous task to next ascertain as to whether the appellants are guilty of offence under Section 309 read with Section 107, I.P.C. The alleged attempt to commit suicide was made on 15.1.1986 on which day, it is alleged that the deceased being abused and provoked for not having brought a table fan ingested Sulphuric Acid at her matrimonial house. The appellants immediately took the deceased to the S.C.B. Medical College Hospital, Cuttack for treatment. The deceased received treatment by the doctors P.Ws. 17,18 and 21 who discharged her from the hospital on 26.1.1986 (over a period of 11 days) since the physical condition improved satisfactorily. It is further in the evidence that the deceased was taken to her mother's house for treatment, but her mother being not in a financial position to treat her, she was taken to her matrimonial house and was left there. Thereafter, since the condition of the deceased did not improve, the appellants once again admitted her in S.C.B. Medical College Hospital on 14.2.1986 and ultimately she succumbed to the injuries on 6.3.1986 (over a period of 20 days).
14. Another material fact which is relevant is that on the date of admission of the deceased into the hospital, a station diary entry has been made at Mangalabag Police Station and the same has been marked as M.O. No. 11 in the present case, but no charge-sheet has been filed as a consequence thereof. In other words, since the deceased has not been charged for the offence under Section 309, I.P.C., there can be no question of abetment on the part of the appellants and there can also be no question of guilt under Section 107, I.P.C. for punishment.
15. Apart from the above the entire evidence of the prosecution insofar as involving the appellants with the deceased's attempt to commit the suicide is concerned, P.W. 1 (mother), P.W. 2 (Brother) and P.W. 9 (maternal uncle) of the deceased have collectively stated that the deceased made a statement at the time of her treatment in SCB Medical College to the effect that the appellants tortured and instigated her to commit suicide. The evidence of P.W. 1 on this aspect is to the following effect:
I along with Dharmananda, my son Achuta and Sridhar Behera went to Cuttack Medical to see the condition of my daughter. Looking at me my daughter could not talk me properly and told me that she had taken acid as she could not sustain the assault by her husband and the abuse of her father-in-law.
P.W. 2 Achuta Sahu in his evidence stated as follows: "I along with Dharmananda Sahu, Achuta Sahu, Sridhar Behera went to Cuttack Medical. On being asked my deceased sister told me that she had taken acid as the demand for a fan was not fulfilled. We came back.
P.W. 9 Dharmananda Sahu, the maternal uncle of the deceased in his evidence stated as follows:
On 16.1.1986 we came to know that deceased Kamini had taken Acid. Then I went to Cuttack Medical. Ananda Sahu of Kundapatna told to P.W. 1 that deceased Kamini had taken Acid. P.W. 1 informed this fact to me. When I reached Cuttack Medical I found that deceased Kamini was not in a position to talk properly. I asked a doctor of Cuttack Medical, who told me that deceased Kamini had taken Acid due to dispute in her family.
16. On an analysis of the aforesaid evidence, it is clear that P.W. 1, the mother of the deceased stated that she along with Dharmananda (P.W. 9), Achuta Sahu (P.W. 2) and Sridhara Behera went to Cuttack Medical to see the condition of her daughter. Her son Achuta (P.W.2) does not support the above assertion of her mother and instead asserts that he along with Dharmananda and Sridhar had gone to visit the deceased at the hospital. He remains totally silent as to whether his mother joined him for such visit.
Therefore, P.W. 2 does not support the evidence of P.W. 1 to the aforesaid effect. P.W. 9 Dharmananda Sahu, on the other hand, stated that he had visited Cuttack Medical on his own and also stated that P.W. 1 informed this fact to him. This clearly contradicts and/or demolishes the evidence of both P.W. 1 and P.W. 2 inasmuch as none of these three witnesses corroborate each other on this extremely important material fact. Whereas P.W. 1 claims to have gone to the Hospital with the aforesaid persons, P.W. 2 denies presence of his mother and P.W. 9 claims that he alone visited the hospital, interestingly, the other witness i.e. Sridhar Behera who is claimed to be a witness by P.W. 1, P.W. 2 and Ananda Sahu who is stated to have informed by P.W. 1 that the deceased had taken Acid, has neither been examined nor produced by the prosecution. On the other hand, P.W. 9 who appears to be an independent witness stated that when he visited Cuttack Hospital, he found that the deceased was not in a position to talk properly and the doctor advised him that the deceased has taken Acid due to dispute in the family.
I have examined the prosecution evidence on this aspect in order to ascertain as to whether the appellants are guilty under Section 309 read with Section 107, I.P.C. I am of the view that for the purpose of the present case, the appellants cannot be found to be guilty under the aforesaid sections of the Indian Penal Code.
In view of my finding arrived hereinabove and while concurring with the conviction of the appellants under Section 498A, IPC, now it becomes relevant to adjudicate the sentence that may be imposed on the appellants. Learned Sessions Judge has imposed the maximum punishment of rigorous imprisonment for three years and a fine of Rs. 5,000 each, in default, to undergo R.I. for three months for the offence under Section 498A, IPC.
17. Insofar as sentence is concerned, Learned Counsel for the appellants submitted that Appellant No. 1, the husband of the deceased was aged about 23 years at the time of occurrence in the year 1986 and Appellant No. 2, the father-in-law was aged about 57 years at the time of occurrence. He submitted that in course of time, appellant No. 1 is aged about 44 years and appellant No. 2 is aged about 78 years.
On consideration of the aforesaid facts, Learned Counsel for the appellants submitted that the sentence of imprisonment passed on them may be reduced to the period already undergone and further prays that the ends of justice would be best served if the Probation of Offenders Act is applied and the offenders are released under the Probation of good conduct.
18. In this respect, Learned Counsel for the appellants placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Devi Ram v. State of Haryana, and in the case of Ramachandra Singh and Ors. v. State of Bihar and Anr. . In Devi Ram's case (supra), the Hon'ble Supreme Court while dealing with a case under Sections 306 and 498A, I.P.C., came to hold that the appellant was an aged person and the incident in question had taken place as far back as in 1987 and has already served out part of the sentence. On consideration of the same, the Hon'ble Supreme Court while upholding, the conviction the appellant, reduced the sentence to the period already undergone and directed payment of fine of Rs. 10,000. In the case of Ramachandra Singh's case (supra), the Hon'ble Supreme Court while maintaining the conviction of the appellants under Section 498A, I.P.C., reduced the sentence to the period already undergone and so far as appellant No. 3 was concerned, applied Section 4 of the Probation of Offenders Act and released him on Probation of good conduct.
19. On a consideration of the submissions advanced by the Learned Counsel for the appellants, in the present case, appellant No. 2 (father-in-law) is a person of advanced year inasmuch as he was 60 years in the year 1989 and is 77 years by now and the offence relates back to the year 1986 and therefore, while upholding his conviction under Section 498A, I.P.C., I reduce the sentence to the period already undergone and direct the appellant to pay a fine of Rs. 5,000 as directed by the Trial Court and when the said amount is realized, that would be paid to the mother of the decease Kamini. If for any reason, the fine amount is not realized, then the Appellant shall surrender to his bail bonds and serve out the sentence of six months R.I., in default of payment of fine. The appellant is on bail. If he pays the fine imposed on him, the bail bonds shall stand discharged and if not, the appellant shall be arrested to serve out the sentence awarded, in default, hereinabove.
Insofar as appellant No. 1 is concerned, he was aged about 23 years at the time of occurrence in the year 1986. About more than 20 years have elapsed in the meantime and he must be above 44 years of age. Admittedly, the case of the prosecution is about demand of dowry of a table fan or 50 kgs. of brass utensils. This also clearly establishes the economic strata to which the appellant belongs.
20. On consideration of the contentions advanced by the Learned Counsel for the parties, I am of the view that ends of justice would be served if appellant No. 1 is dealt with under Section 4 of the P.O. Act, 1958 and is released on Probation of good conduct. The sentence imposed on appellant No. 1 is hereby set aside and it is directed that he shall the released on a bond of Rs. 10,000 and shall appear before the Trial Court and shall receive the sentence on being called upon during the period of one year and shall maintain peace of good behaviour. The personal bond and security bond by appellant No. 1 shall be filed before the Trial Court within a period of one month from today. The appellants need not surrender to their bail bonds which are discharged in view of the terms contained hereinabove.
21. The appeal is allowed in part.