Orissa High Court
Anil Pradhan vs State Of Orissa on 22 December, 2015
Author: S.K. Sahoo
Bench: Vinod Prasad, S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRIMINAL APPEAL NO. 200 Of 2009
From the judgment and order dated 09.03.2009 passed by the
Sessions Judge, Phulbani passed in Sessions Trial No.86 of 2008.
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Anil Pradhan ......... Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant - Mr. Himanshu Bhusan Dash
For Respondent - Mr. Prem Kumar Patnaik
Addl. Govt. Advocate
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE VINOD PRASAD
AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO
........................................................................................................................
Date of Argument- 05.11.2015 Date of Judgment- 22.12.2015
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S. K. SAHOO, J.The appellant faced trial in the Court of learned Sessions Judge, Phulbani in Sessions Trial No. 86 of 2008 for offences punishable under sections 498-A, 304-B, 302, 406 of Indian Penal Code and section 4 of Dowry Prohibition Act, 1961. 2
The learned trial Court while acquitting the appellant of the charge under section 406 of Indian Penal Code, found the appellant guilty under sections 498-A, 304-B, 302 of Indian Penal Code and section 4 of Dowry Prohibition Act vide impugned judgment and order dated 09.03.2009 and sentenced him to undergo imprisonment of life and to pay a fine of Rs.1000/-, in default, to undergo R.I. for one year for each of the offences under sections 302/304-B of Indian Penal Code, R.I. for two years and to pay a fine of Rs.1000/-, in default, to undergo R.I. for four months under section 498-A of Indian Penal Code and R.I. for six months and to pay a fine of Rs.1000/-, in default, to undergo R.I. for two months for the offence under section 4 of Dowry Prohibition Act. The substantive sentences were directed to run concurrently.
2. The prosecution case as per the First information report (Ext.5) presented by Chitrasen Majhi (P.W.7) on 12.04.2008 before the Officer in-charge of G. Udayagiri Police Station is that his daughter Sujata Majhi (hereafter 'the deceased') married the appellant in accordance with caste and customs about three years prior to the lodging of the F.I.R. and they were blessed with a daughter who was aged about two years at the time of occurrence. The informant came to know on 11.04.2008 that the deceased was lying dead in the house of 3 the appellant and immediately he along with his wife and some gentlemen of village Bardalbanga rushed to the house of the appellant and asked him about the occurrence who replied that the deceased caught fire on 11.04.2008 night for which she died. The informant also came to know that there was disturbance between the appellant and the deceased for about two days. The deceased was found lying dead in the house of the appellant with burn injuries. Suspecting that the appellant had killed the deceased, the informant lodged the first information report before P.W.11 Aswini Kumar Nayak, Officer in-charge of G. Udayagiri Police Station who registered G. Udayagiri P.S. Case No. 29 of 2008 under sections 498 (A), 304 (B), 302 of Indian Penal Code read with section 4 of Dowry Prohibition Act.
3. P.W.11 issued requisition to the Sub-Collector for deputation of Executive Magistrate to the spot for holding inquest over the dead body. P.W.11 examined the informant and other witnesses, issued command certificate to the police constables to proceed to the spot for guarding the dead body. On 13.4.2008 P.W.11 along with the Executive Magistrate and other staffs visited the spot and held inquest over the dead body of the deceased and prepared inquest report Ext.1. The dead body was sent for post mortem examination through constables. 4
P.W.6 Dr. Biswaranjan Padhi who was the Medical Officer attached to G. Udayagiri Government Hospital conducted autopsy over the dead body on 13.04.2008 and prepared the post mortem report vide Ext. 4. He opined the cause of death to be homicidal in nature.
During course of investigation, P.W.11 seized the broken bangles, some half burnt leaves, one half burnt red coloured jerry cane, one half burnt plastic mat, half burnt Saree, Saya, bed sheet and other clothes which were seized from the spot vide seizure list Ext.3/1. He also seized the sample earth and blood stained earth and some earth emitting kerosene smell from the spot where the dead body of the deceased was lying vide Ext.2/1. He prepared the spot map Ext.9 and the spot is the bed room of the house of the appellant. The I.O. arrested the appellant on 14.04.2008 and forwarded him to Court. He seized the garments and ornaments of the deceased as well as the command certificate on production by the police constables. He received the post mortem report on 13.05.2008. P.W.11 forwarded the seized articles for chemical examination to S.F.S.L., Bhubaneswar through Court. After completion of investigation, on 10.08.2008 P.W.11 submitted charge sheet against the appellant under sections 498-A/304-B/302/406 of Indian Penal Code and section 4 of Dowry Prohibition Act. 5
4. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the appellant under sections 498-A, 304-B, 302, 406 of Indian Penal Code and section 4 of Dowry Prohibition Act on 15.12.2008 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 his guilt.
5. During course of trial, in order to prove its case, the prosecution examined eleven witnesses.
P.W.1 Harihar Sahoo is a co-villager of the appellant and he did not support the prosecution case for which he was declared hostile by the prosecution.
P.W.2 Biswanath Naik stated that on the date of occurrence the deceased who had been to her parents' house returned to the house of the appellant along with her daughter and bolted the door from inside and when the appellant knocked the door, the deceased did not open the door for which the appellant went to his parents house. He is witness to the inquest. He was declared hostile by the prosecution.
P.W.3 Sanjay Kumar Nayak and P.W.4 Madan Pradhan did not support the prosecution case for which they were declared hostile by the prosecution.
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P.W.5 Bansidhar Pradhan stated that the appellant was staying in a rented house along with the deceased and their daughter and during midnight on the date of occurrence, the appellant came to his house along with his small daughter and told him that the deceased was inside the house which was locked from inside and there was burning and the deceased was not opening the door. He further stated that by using crowbar, they broke opened the door and entered inside the house and found the deceased was on flame and dead.
P.W.6 Biswaranjan Padhi was the Medical Officer attached to G. Udayagiri Government Hospital who conducted post mortem examination over the dead body on 13.04.2008 and submitted his report vide Ext.4.
P.W.7 Chitrasen Majhi is the father of the deceased and he is the informant in the case. He stated that the appellant was assaulting the deceased in connection with demand of television set. He further stated that the appellant informed him that the deceased committed suicide by pouring kerosene on her body and setting herself on fire but he suspected foul play as the head portion and the hairs of the skull were not burnt. He is also a witness to the inquest over the dead body.
P.W.8 Surama Majhi stated that on receipt of the information regarding the death of the deceased, he along with 7 the informant and others proceeded to the house of the appellant and found the dead body of the deceased lying in a half burnt condition. He is also a witness to the seizure of bangles, half burnt jerry cane, plastic mat, half burnt Saree, Saya, bed sheet etc. from the spot house vide seizure list Ext.3/2. He is also witness to the seizure of some sample earth from which kerosene smell was emitting at the spot vide seizure list Ext.2/1.
P.W.9 Prakash Chandra Dehury was the police constable attached to the G. Udayagiri police station who was issued with a command certificate by the Officer in-charge and accordingly he proceeded to the spot to keep watch over the dead body on 12.04.2008 and he also carried the dead body for the post mortem examination and after post mortem examination, he handed over the garments and ornaments of the deceased to the Investigating Officer which were seized under seizure list Ext. 6.
P.W.10 Smt. Sukanti Majhi is the mother of the deceased and she has stated regarding demand of T.V. by the appellant and also torture by the appellant. She further stated that the appellant was picking up quarrel with the deceased being intoxicated.
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P.W.11 Aswini Kumar Nayak is the Investigating Officer.
The prosecution exhibited eleven documents. Ext.1 is the inquest report, Ext.2/1 and Ext.3/1 are the seizure lists, Ext.4 is the post mortem report, Ext.5 is the F.I.R., Ext.6 is the seizure list, Ext.7 is the command Certificate, Ext.8 is the dead body challan, Ext.9 is the spot map, Ext.10 is the forwarding report and Ext.11 is the Chemical Examination report.
6. The defence plea of the appellant was one of denial and it was pleaded that there was no demand of any dowry or torture to the deceased and on the date of occurrence the deceased who had been to her parents' house returned back in the night and knocked the door and the appellant who was sleeping alone inside his rented house opened the door of the house and the deceased entered inside and handed over the daughter to him and then entered into the bed room and closed the door from inside. She slept inside the bed room and the appellant slept in the front room and after sometime when the appellant came out of the house for urination and returned back, he found that smoke was emanating from inside the bed room and he tried to break open the door of the bed room but could not succeed and then he called the co-villagers who broke open 9 the door of the bed room and found the deceased on fire and dead.
The appellant examined himself as D.W.1 and one front door neighbour namely Laxman Pradhan was examined as D.W.2.
7. The learned trial Court has been pleased to observe that the deceased was the married wife of the appellant and the death of the deceased had occurred about three years after her marriage and that the room inside the house of the appellant was the place of occurrence where the dead body of the deceased was found lying with burn injuries. The learned trial Court further held that from the evidence of P.W.6, it appears that some other inflammatory material other than kerosene was applied for the burning of the deceased and during the process of burning, external force was applied over the lungs, trachea and larynx area for which there was congestion inside. It was further held that from the evidence of P.W.7 & P.W.10, it is clear that just prior to the occurrence the deceased was tortured for the dowry by the appellant and the evidence of Medical Officer clearly suggests that it is a clear case of homicidal death of the deceased and the accused being the only inmate of the house, the homicidal death of the deceased points at the accused alone as the murderer. It was further held that the deceased had not 10 committed suicide by pouring kerosene upon herself. The kerosene and the half burnt plastic jerry cane, some garments containing kerosene smell was obviously planted at the spot to give a color of suicide. It was further held that the falsity of the defence plea fills up the gap and unfailingly points at the appellant as the assailant in the case. The learned trial Court relied upon the evidence P.Ws. 6, 7, 8, 9, 10 & 11 and came to the conclusion that the prosecution has proved beyond all reasonable doubt that the deceased was burnt alive by the appellant after torturing her demanding dowry within seven years of her marriage and accordingly held the appellant guilty under sections 498-A/304-B/302 of Indian Penal Code and section 4 of Dowry Prohibition Act.
8. Adverting over the nature and cause of death of the deceased, we find that apart from the inquest report Ext.1, the prosecution has relied upon the evidence of P.W.6 Dr. Biswaranjan Padhi who had conducted post mortem examination over the cadaver of the deceased on 13.04.2008 on police requisition at G. Udayagiri Govt. Hospital. During post mortem examination, he noticed burning all over the body of the deceased involving about 90% of the body surface and burning was superficial except over left inguinal region of size 4" x 2" x upto deep fasica and left arm anterior region of size 6" x 4" x 11 bone deep and in those two places, only tissues and muscles were burnt. There was swelling on the face and oozing of the mucous from the nostrils and the mouth. All the burns were opined to be ante mortem in nature and shoot particles were found present on the trachea and the lungs. On dissection, the doctor found the spinal cord, the brain and whole of viscera including the main organs were congested. He opined the cause of death of the deceased was due to asphyxia resulting from neurogenic shock due to extensive burn injury which was sufficient in ordinary course of nature to cause death. The contusions on the lungs, larynx and trachea were opined to be ante mortem in nature and might have been caused due to force applied externally during course of burning. The doctor opined the death to be homicidal.
9. The learned counsel for the appellant submitted that the opinion of the doctor that it is a case of homicidal death is not at all acceptable rather it is a case of suicide. We find that no such suggestion has been given to the doctor. As it appears, P.W.6 did not notice any kerosene smell emitting either from the body or from the garments of the deceased. He has further stated that some inflammatory articles except kerosene might have been used for burning the deceased. It is the further evidence of the doctor that he noticed contusion on the larynx 12 and trachea and both the lungs which were opined to have been caused due to force applied externally during the course of burning and the contusions were opined to be ante mortem in nature. The doctor has proved the post mortem report as Ext.4. The excessive burning at two places i.e. on the left inguinal region and anterior side of the left arm had affected the soft tissues. The chemical examination report (Ext.11) no doubt indicates that kerosene was detected in burnt (melted) red plastic jarkin, half burnt check saree, half burnt red coloured saree and earth but it also indicates that kerosene could not be detected from half burnt leaves, broken bangles, half burnt plastic mat, half burnt saya, half burnt saree, blackish Mali, half burnt plastic bangles, leg Paunji and half burnt underwear. We are of the view that even if from some articles, kerosene was not detected as per Chemical examination report but that would not make the medical evidence unacceptable.
The contention of the learned counsel for the appellant that it is a case of suicide as the deceased had bolted the door of the bedroom from inside which was broke open by the appellant and the co-villagers by means of crowbar is not at all acceptable as the Investigating Officer has categorically stated that he did not notice any mark of violence such as uprooting of the bolt, hinge, chain or hook of the door of the 13 house from inner side or breaking of the door leaf of any of the door of the house of the appellant.
We are of the view that when no specific questions have been put to the doctor regarding suicidal theory and the surrounding circumstances also falsify such theory, on the other hand the doctor has categorically stated that it is a case of homicidal death, we are unable to accept the contentions raised by the learned counsel for the appellant that it is a case of suicidal death rather in view of the testimony of the autopsy doctor, the post mortem report Ext.4, the inquest report Ext.1 and the evidence of the investigating officer, we are of the view that the prosecution has successfully established that the deceased met with a homicidal death.
10. Mr. Himanshu Bhusan Dash, learned counsel for the appellant launching scathing attack on the impugned judgment and order submitted that there is no positive evidence regarding demand of dowry or torture in connection with such demand and even if the death of the deceased was held to have been caused by burn injury within seven years of marriage but that by itself would not attract the ingredients of the offence under section 304-B of Indian Penal Code. The learned counsel further submitted that "cruelty" which is required to be proved in terms of its definition as given in the Explanation under section 498-A 14 of Indian Penal Code has also not been established. He further submitted that the statement of the father of the deceased that whenever the deceased was visiting the house of the neighbours for watching television programmes, the appellant was assaulting her and asking her to bring a TV will not bring such demand within the purview of section 4 of Dowry Prohibition Act. He further contended that the prosecution case that the appellant committed the murder of the deceased by some inflammatory articles is not acceptable in view of the conduct of the appellant in calling people from the neighbourhood during the mid-night to save the deceased.
Mr. Prem Kumar Patnaik, learned Additional Government Advocate submitting conversely, argued that there is no flaw in the impugned judgment and order of conviction. The learned counsel further submitted that not only the demand of dowry and torture on the deceased has been established by the prosecution but also in view of the surrounding circumstances as well as the evidence of the Medical Officer, it is clearly established that it is a case of homicidal death. He further contended that the defence plea that it is a case of suicidal death is falsified in view of the statement of the Investigating Officer that during the spot visit, he did not notice any sign regarding breaking open of the door by crowbar.
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11. We have thoughtfully considered the rival contentions vis-a-vis the evidences on record. P.W.7 and P.W.10 who are the parents of the deceased have stated about the demand of TV by the appellant and torture on the deceased on account of non-fulfillment of such demand. Though the other independent witnesses have not supported the prosecution case on such aspect but even then also we cannot doubt the evidence of the parents of the deceased inasmuch as in our humble opinion, they are the best witnesses to throw light on such aspect. P.W.7 has stated that the deceased had intimated him that the appellant was assaulting her asking for bringing a television set whenever she went to see the television programme in the neighbourhood and such information was given to him by the deceased even when she had come to her father's place for the last time. In the cross-examination, P.W.7 has stated that concerning TV, there was always quarrel in the house of the appellant for which the appellant had deserted the deceased at Rairkia.
P.W.10 has stated that the appellant was demanding TV and was quarreling and assaulting the deceased about two days prior to the death of the deceased. The deceased further told P.W.10 that the appellant being intoxicated was assaulting 16 her. Nothing has been elicited in the cross examination of either P.W.7 or P.W.10 so as to discard their version.
Whether the television was a necessity for the appellant or the deceased is not a factor to disbelieve the statements of the parents of the deceased regarding demand of dowry of television set. The continuous demand of television set, coercing the deceased and her parents to meet such unlawful demand, quarreling with the deceased and assaulting her in an intoxicated manner, harassing and torturing the deceased on account of non-fulfillment of the demand clearly makes out the ingredients of the offences under section 498-A of Indian Penal Code and section 4 of Dowry Prohibition Act. Even if such a demand was made after the marriage but since such demand became a condition for smooth continuance of marriage and failure to meet such demand by the parents of the deceased created disturbance in the marital life of the parties, it can be said that the demand was raised in connection with the marriage of the parties. Moreover Section 498-A of Indian Penal Code does not specifically speak of dowry demand. It speaks of any unlawful demand of property and valuable assets. Cruelty need not be physical. In a given circumstance, even mental torture or abnormal behavior may amount to cruelty and harassment. 17
In view of the evidence on record particularly evidenced of P.W.7 and P.W.10, we are of the view that the prosecution has successfully established charges under sections 498-A of Indian Penal Code and 4 of Dowry Prohibition Act and therefore there is no infirmity in the opinion of the trial court in convicting the appellant of those offences.
12. Now coming to the other charges, we find that the learned trial Court has framed separate charges under section 304-B and 302 of Indian Penal Code separately. The learned trial Court has not framed alternative charges under section 302 and 304-B of Indian Penal Code even though the evidence permitted framing of such charges. Framing of alternative charges is permissible under section 221 Cr.P.C. However we are of the view that the error or irregularity in the framing of charges by the learned trial Court has not caused any prejudice to the accused.
The charges framed by the learned trial Court for the aforesaid offences are quoted herein below:-
" Secondly:- That you on 11th day of April 2008 at night at village Lingagada committed dowry death of Sujata Majhi by bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and that soon before her death she was subjected to cruelty or harassment by you all in connection with demand of dowry 18 and thereby committed an offence punishable U/S 304-B IPC and within my cognizance.
Thirdly:- That you on or about 11.4.2008 at village Lingagade committed murder by intentionally causing the death of Sujata Majhi and thereby committed an offence punishable under Sec 302 of IPC and within my cognizance."
The Hon'ble Supreme Court in case of Rajvir @ Raju
-Vrs. State of Haryana reported in AIR 2011 SC 568 had directed that all the trial Courts in India to ordinarily add section 302 Indian Penal Code to the charge of section 304-B of Indian Penal Code, so that death sentence can be imposed in such heinous and barbaric crimes against woman.
The Hon'ble Supreme Court in case of Jasvinder Saini and others -Vrs.- State (Govt. of NCT of Delhi) reported in (2013) 56 Orissa Criminal Reports (SC) 205 has held as follows:-
" 13. Be that as it may the common thread running through both the orders is that this Court had in Rajbir's case (supra) directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304-B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this 19 Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court. It is common ground that a charge under Section 304-B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder, in every case under Section 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC, the Trial Court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304-B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients...."
In case of Sher Singh -Vrs.- State of Haryana reported in (2015) 60 Orissa Criminal Reports 842, it is held as follows:-
" 10. It is already empirically evident that the prosecution, ubiquitously and in dereliction of duty, in the case of an abnormal death of a young bride confines its charges to section 20 304-B because the obligation to provide proof becomes least burdensome for it; this is the significance that attaches to a deeming provision. But, in any death other than in normal circumstances, we see no justification for not citing either section 302 or section 306, as the circumstances of the case call for. Otherwise, the death would logically fall in the category of an accidental one. It is not sufficient to include only section 498-A as the punishment is relatively light. Homicidal death is chargeable and punishable under sections 302 and 304-B if circumstances prevail triggering these provisions."
In case of State of Punjab -Vrs.- Iqbal Singh and others reported in AIR 1991 SC 1532, it is held as follows:-
" The legislative intent is clear: to curb the menace of dowry deaths, etc., with a firm hand. We must keep in mind this legislative intent. It must be remembered that since such crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing sections 113-A and 113-B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life. If a married woman is subjected to cruelty or harassment by her husband or his family members Section 498-A, I.P.C. would be 21 attracted. If such cruelty or harassment was inflicted by the husband or his relative for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under Section 304-B I.P.C. When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death, she was subjected by such person to cruelty and/or harassment for, or in connection with, any demand for dowry, Section 113-B, Evidence Act provides that the Court shall presume that such person had caused the dowry death. Of course if there is proof of the person having intentionally caused her death that would attract Section 302, I.P.C."
Coming to the case at hand, it is proved that the death of the deceased took place within seven years of marriage and it was caused otherwise than under normal circumstances i.e. by burn injuries. If death is unnatural, either homicidal or suicidal, it would be the death which can be said to have taken place otherwise than under normal circumstances and the provisions of section 304-B of Indian Penal Code would be attracted provided other ingredients of such offence are attracted. On proper analysis of Section 304-B of the Indian Penal Code and Section 113-B of the Evidence Act, it shows that 22 there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution is under an obligation to rule out any possibility of natural or accidental death.
In the present case as we have already observed that the prosecution has established that it is a case of homicidal death. There are materials on record that soon before her death, the deceased was subjected to cruelty by the appellant in connection with demand of television set. The interval between the cruelty or harassment and the death is also very short. There is existence of proximate and live link between the effect of cruelty based on dowry demand and concerned death. The conduct relating to harassment in connection with the demand of television set was existing earlier in time not too late and not too stale before the date of death of the deceased.
Law is well settled that the term "soon before" as appears in section 304-B of Indian Penal Code is an elastic term which can refer to a period either immediately before the death of the deceased or within a few days or few weeks before death. What is relevant is that there should be a perceptible nexus between the death of the deceased and dowry related harassment or cruelty inflicted on her. It is neither possible nor desirable to lay down any straightjacket formula to determine 23 what would constitute "soon before". It all depends on the facts and circumstances of the case.
The prosecution has established that the appellant and the deceased along with their daughter were residing in the spot house and on the night of occurrence, the appellant was present in the house. The evidence led by the defence that the deceased committed suicide bolting the door of her bedroom from inside which was ultimately broke open with the help of crow bar is not at all acceptable in view of the evidence of the Investigating Officer that he had not noticed any mark of violence like uprooting of bolt, hinge, chain or hook of the door from inside or breaking up of the door leaf of any of the doors. The plea taken by the appellant in his evidence given on oath under section 315 Cr.P.C. that on the night of the occurrence the deceased slept in the bedroom and he slept in the front room and he came out of the house for urination and after returning back, he found the smoke was coming out from inside the bedroom is not at all acceptable in view of her pre-varicating stand taken in his statement recorded under section 313 Cr.P.C. that both of them slept in the house and when he came out of the house for urination, the deceased left the daughter out of the house, closed the door and set herself on fire. 24
The provisions of section 106 of the Evidence Act are unambiguous and categoric in laying down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by section 106 of the Evidence Act. When the accused fails to throw any light upon facts which are especially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as additional link which completes the chain.
When the husband (appellant) and wife (deceased) were together in their house in the night and the deceased was found dead with burn injuries and the death was homicidal in nature, it is the appellant who is to explain as to under what circumstances the deceased died as he is the best person who knows in what manner and under what circumstances, the deceased met her end and if he failed to discharge his burden of proof and failed to give a cogent, probable and satisfactory explanation, that itself would provide an additional link in the chain of circumstances.
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In case of Ajitsingh Harnamsingh Gujral -Vrs.- State of Maharashtra reported in AIR 2011 SC 3690, it is held as follows:-
"29. The evidences of PW.3, PW 4 and PW 5, which we see no reason to disbelieve, thus fully establish that the Appellant was last seen with his wife at about midnight and was in fact quarrelling with her at that time.
30. The incident happened at 4 or 4.30 a.m. and hence there was a time gap of only about 4 hours from the time when the Appellant was seen with his wife (deceased) and the time of the incident. Thus he was last seen with his wife and there was only a short interval between this and the fire.
31. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible, vide Mohd. Azad alias Samin -Vrs.- State of West Bengal 2008 (15) SCC 449 and State through Central Bureau of Investigation -Vrs.- Mahender Singh Dahiya 2011 (3) SCC 109, Sk. Yusuf - Vrs.- State of West Bengal JT 2011 (6) SC 640 .
32. In our opinion, since the accused was last seen with his wife and the fire broke out about 4 hours thereafter it was for him to properly explain how this incident happened, which he has not done. Hence this is one of the strong 26 links in the chain connecting the accused with the crime.
33. The victims died in the house of the accused, and he was there according to the testimony of the above witnesses. The incident took place at a time when there was no outsider or stranger who would have ordinarily entered the house of the accused without resistance and moreover it was most natural for the accused to be present in his own house during the night".
In case of Babu S/o Raveendran -Vrs.- Babu S/o Bahuleyan and Anr. reported in (2003) 7 SCC 37, it is held that "14. The second important circumstantial evidence against the accused is that the accused and the deceased were last seen together. To put it tersely, both of them slept together by retiring to the room that night.
Last seen together in legal parlance ordinarily refers to the last seen together in the street, at a public place, or at any place frequented by the public. But here, the last seen together is much more than that. The last seen together here is sleeping together inside the bolted room. It is in the evidence of PW-3 and PW-6 that they had dined together and the accused and the deceased were closeted in a room at about 8.30 p.m. Therefore, on the fateful day the accused and the deceased were closeted in a bedroom at about 8.30 p.m. is undisputed and it is for the accused alone to explain as to what happened and how his wife died and that too on account of strangulation.
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18. Now the question which remains to be considered is, who is responsible. As already noticed, the accused and the deceased were closeted inside the room. There is no evidence of an intruder. In such a situation, the circumstances leading to the death of the deceased are shifted to the accused. It is he who knows in what manner and in what circumstances the deceased has met her end and as to how the body with strangulation marks found its way into the nearby well. All the aforesaid circumstances, taken together cumulatively lead and unerringly point only to the guilt of the accused".
In Trimukh Maroti Kirkan -Vrs.- State of Maharashtra reported in 2006 AIR SCW 5300, the Apex Court held that:
"12. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties......Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it 28 to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of S. 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation".
In case of State of Rajasthan -Vrs.- Kashi Ram reported in 2006 AIR SCW 5768, the Apex Court held that:
"19.....whether an inference ought to be drawn under Section 106 Evidence Act is a question which must be determined by reference to facts proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts".
The Court further held that:
"23.....The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis 29 of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain".
The plea of the appellant taken in order to explain or clarify the incriminating circumstances is found to be false not only in view of the evidence of the doctor who conducted post- mortem examination and the evidence of the Investigating Officer but also from the surrounding circumstances. When the appellant was only present with the deceased and their minor daughter in his house in the night of occurrence and the deceased died a homicidal death and such incriminating links of facts were in the personal and exclusive knowledge of the appellant and he has failed to explain under what circumstances such death had occurred, keeping in view the overall 30 circumstances available on record coupled with the falsity of the defence plea, we are of the view that it is none else but the appellant who is the author of the crime. The facts so established by the prosecution are consistent with the hypothesis of the guilt of the appellant and the chain of evidence is complete and the incriminating circumstances unmistakably and inevitably lead to an irresistible conclusion regarding the guilt of the appellant.
We are of the view that there is clear oral evidence on record that demand of television set persisted and so did harassment and cruelty meted out to the deceased as on the date of occurrence for non-fulfillment of such demand and there is also no doubt that deceased died a homicidal death in connection with the demand of dowry. Since the prosecution is able to establish the circumstances set out under section 304-B of Indian Penal Code, presumption under section 113-B of Indian Evidence Act will operate which is mandatory in nature. Therefore we find no infirmity in the findings of the learned trial Court in convicting the appellant under section 304-B of Indian Penal Code.
In case of Ashok Kumar -Vrs.- State of Rajasthan reported in AIR 1990 SC 2134, it is held as follows:-
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" 4........Bride burning is a shame of our society. Poor never resort to it. Rich do not need it. Obviously because it is basically an economic problem of a class which suffers both from ego and complex. Unfortunately, the high price rise and ever increasing cost of living coupled with enormous growth of consumer goods effacing difference between luxury and essential goods appear to be luring even the new generation of youth, of the best service, to be as much part of the dowry menace as their parents and the resultant evils flowing out of it. How to curb and control this evil? Dowry killing is a crime of its own kind where elimination of daughter-in-law becomes immediate necessity if she or her parents are no more able to satiate the greed and avarice of her husband and their family members, to make the boy available, once again in the marriage market. Eliminate it and much may stand resolved automatically. Social reformist and legal jurists may evolve a machinery for debarring such a boy from remarriage irrespective of the member of family who committed the crime and in violation penalise the whole family including those who participate in it. That is social ostracism is needed to curtail increasing malady of bride burning."
The manner in which for the demand of television set, the deceased who was having a minor daughter of two years old was charred to death within three years of marriage is extremely brutal, grotesque, diabolical, revolting and dastardly and therefore the learned trial Court was absolutely justified in 32 sentencing the appellant to undergo imprisonment of life and also imposing fine.
The learned trial Court has also convicted the appellant under sections 302 of Indian Penal Code and imposed sentence of imprisonment of life and fine for such offence. Since the appellant intended fulfillment of dowry demand and homicidal death of the deceased was caused in connection with such demand and once the trial Court finds that the prosecution case under sections 498-A, 304-B of Indian Penal Code and section 4 of Dowry Prohibition Act is proved with a finding that it is a case of homicidal death and sentenced the appellant to imprisonment for life under section 304-B of Indian Penal Code which is the maximum punishment for such offence, it was not proper on his part to convict the appellant also under section 302 of Indian Penal Code and impose the same sentence again.
13. In view of the evidence available on record, we are of the view that the prosecution has successfully established the charges under sections 498-A, 304-B of Indian Penal Code and section 4 of Dowry Prohibition Act against the appellant beyond all reasonable doubt. The conclusion arrived by the learned trial Court in convicting the appellant for such offences and the reasonings assigned for arriving at such conclusion are quite acceptable and convincing. The overwhelming persuasive 33 circumstances attending the case and the crucial inculpatory evidence bear chilling testimony unmistakably proving the gruesome offence of dowry death and its diabolical execution and unerringly establishing the guilt of the appellant beyond all reasonable doubts.
For all the reasons stated above, we, unhesitatingly hold that the conclusion arrived at by the trial Court is logical, tenable, and reasonably sustainable. We, therefore, agree with the conclusion arrived at by the trial Court and uphold the impugned judgment and order of conviction of the appellant under sections 498-A, 304-B of Indian Penal Code and section 4 of Dowry Prohibition Act. We also do not find any illegality or infirmity in the quantum of sentence imposed by the learned trial Court for the aforesaid offences.
14. In the result, the impugned judgment and order of conviction of the learned trial Court under sections 498-A, 304-B of Indian Penal Code and section 4 of Dowry Prohibition Act and the sentence passed there under is confirmed. The appellant who is in jail custody shall remain in jail to serve out the remaining sentence.
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Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action.
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S.K. Sahoo, J.
VINOD PRASAD, J. I agree.
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Vinod Prasad, J.
Orissa High Court, Cuttack
The 22nd December, 2015/Sisir