Court: Orissa High Court
Bench: JUSTICE S.K. Sahoo
Ranjan Kumar Sahu Vs. State Of Orissa On 01 September 2016
Law Point:
(i) Indian Penal Code, 1860 — Sections 306, 498A, 34 — Dowry Prohibition Act, 1961 — Section 4 — Evidence Act, 1872 — Section 113A — Abetment of Suicide — Cruelty — Common intention — Dowry demand — Presumption — Testimony of PW6 — Version not clear cogent, convincing unblemished — All other evidence discarded by Trial Court and co-accused acquitted — Testimony of PWs not corroborated by PW14, father of deceased — Mere mention of such aspect in FIR not sufficient to take it as substantive piece of evidence — Impugned judgment of conviction unsustainable in the eyes of law.
JUDGEMENT
1. The petitioner Ranjan Kumar Sahu faced the trial in the Court of learned Asst. Sessions Judge, Chatrapur along with his mother Chandrama Sahu and sister Subasini Sahu for offences punishable under Sections 498-A/306/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act in Sessions Case No. 17 of 1992/Sessions Case No. 54 of 1992.
Learned Trial Court vide impugned judgment and order dated 20.12.1994 acquitted the co-accused persons Chandrama Sahu and Subasini Sahu of all the charges and also acquitted the petitioner of the charge under Section 4 of the Dowry Prohibition Act but found him guilty under Sections 498-A and 306 of the Indian Penal Code and sentenced him to undergo R.I. for three years for the offence under Section 306 of the Indian Penal Code and one year for the offence under Section 498-A of the Indian Penal Code and to pay a fine of Rs. 500 on each count and in default, to undergo further period of imprisonment for one month on each count and the sentences were directed to run concurrently.
The petitioner preferred an appeal in the Court of Session which was heard by learned 2nd Addl. Sessions Judge, Berhampur in Criminal Appeal No. 175 of 1997/Criminal Appeal No. 9 of 1995-GDC and the learned Appellate Court vide impugned judgment and order dated 9.2.2000 has been pleased to dismiss the criminal appeal and upheld the impugned judgment of the learned Trial Court, hence the revision.
2. The prosecution case as per the First Information Report presented by one Dandapani Sahu (P.W.14), father of Kabita Sahu (hereafter ‘the deceased’) is that the marriage between the petitioner and the deceased was solemnized on 8.3.1988 and P.W.6 Somanath Sahu was the mediator in the said marriage and one Mangulu Sahu also helped him in the marriage. It is further stated in the F.I.R. that as per the demand of the petitioner, cash of Rs. 16,000, gold ornaments and other household articles were given by the informant. The informant came to the house of the petitioner for inviting the petitioner to his house and on that day, he heard from the deceased as well as from the neighbourhood that the accused persons were torturing the deceased as they were not satisfied with the quality of the articles those were given at the time of marriage. The informant tried to settle the matter amicably and left the house of the petitioner. It is further stated in the F.I.R. that in the year 1989 in the month of Shravan, the deceased was taken to her father’s place for the delivery where she gave birth to a female child and after the child became seven months old, on 27.5.1990 the informant brought the deceased back to her in-laws house along with the grand daughter and left them in the house of the petitioner in spite of the unwillingness of the deceased to go there. On that day, the accused persons created disturbance and complained about the quality of different articles which were given at the time of marriage. When the informant challenged them, he was abused by the accused persons and also threatened. On 25.6.1990 the informant sent his wife as well as daughter Babita to the in-laws’ house of the deceased and both of them visited the deceased and on return, they informed the informant that nobody talked with them and the deceased also was not interested to stay there in her in-laws’ house. Since the informant was busy with his business, immediately he could not go to the house of the petitioner and on 2.7.1990 at about 6 O’clock in the evening, he came to know from the Inspector in charge, Balugaon Police station that the deceased had expired. The informant immediately rushed to the hospital and found the dead body of the deceased there and he heard from his brother-in-law (wife’s sister’s husband) Somanath Sahu (P.W.6) that on the previous day at about 10.00 a.m. when he had been to the house of the petitioner on being invited, the deceased was tortured and he was also abused and accordingly, it is stated in the F.I.R. that due to physical and mental torture given to the deceased in connection with demand of dowry by the accused persons, the deceased died.
3. On the basis of such First Information Report, Chatrapur P.S. Case No. 122 of 1990 was registered on 2.7.1990 under Sections 498-A/304-B of the Indian Penal Code against the petitioner, his mother Chandrama Sahu as well as sister Subasini Sahu.
P.W. 20 Alok Kumar Das, who was the officer in charge of Chatrapur Police Station took up investigation of the case, seized the records of Chatrapur P.S.U.D. case No. 80 of 1990. He examined the witnesses, sent requisition to the Scientific Officer, D.F.S.L., Chatrapur and on 3.7.1990, the Scientific team visited the spot and submitted their report vide Ext.6. The I.O. also seized the rope along with the old saree which was used for hanging the deceased under seizure list Ext.12. He held inquest over the dead body in presence of the Executive Magistrate-cum-Tahasildar, Chatrapur at S.D. Hospital, Chatrapur on 3.7.1990 and prepared inquest report (Ext.3) and sent the dead body for post mortem examination. He also seized gold ornaments of the deceased under seizure list Ext.2 and left the same in zima of the informant under zimanama Ext.13.
P.W. 15 Dr. Suresh Chandra Mohapatra who was the Professor in F.M.T. Department, M.K.C.G. Medical College, Berhampur conducted post mortem examination and found a ligature mark around the neck. He opined that the cause of death was due to asphyxia as a result of constriction of neck by hanging. He examined the ligature materials i.e. torn saree as well as rope which were produced before him by the Investigating Officer and after examination, he opined that the ligature mark found on the neck of the deceased appeared to have been caused by the cloth portion of the ligature. He also submitted the post mortem report (Ext.10) to the investigating officer. On 7.7.1990 the investigating officer seized the dowry articles given by the informant to the deceased as per the seizure list Ext.4 which were left in the zima of the informant under zimanama Ext.8 and thereafter, as per the order of S.P., Manmohan Mohapatra (P.W.19), D.S.P., Chatrapur took over charge of the investigation on 7.7.1990. He also visited the spot, examined the witnesses and arrested the accused persons and forwarded them to the Court. He sent the viscera for chemical analysis on 12.7.1990. On 27.2.1991 he made over the charge of investigation to Sri Laxminarayan Mishra, Inspector, H.A.D.D. as per order of S.P., who on completion of investigation submitted the charge sheet on 6.6.1991 under Sections 498-A/306/34 of the Indian Penal Code and Sections 4 and 6 of the Dowry Prohibition Act against the petitioner, his mother Chandrama Sahu as well as sister Subasini Sahu.
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 framed the charges on 12.3.1992 for offences punishable under Sections 498-A/306/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act and since the accused persons refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt.
5. In order to establish its case, the prosecution examined twenty witnesses.
P.W.1 Brundaban Behera was the constable who is a witness to the seizure of wearing apparels and ornaments of the deceased as per the seizure list Ext.1.
P.W.2 Purna Chandra Sahu was the cousin brother of the deceased and is a witness to the seizure of the ornaments of the deceased under seizure list Ext.2.
P.W.3 Sadananda Pattnaik was the Tahasildar, Chatrapur who was present at the time of inquest and proved the inquest report Ext.3.
P.W.4 Promod Kumar Das is an auto rickshaw driver and his evidence is not very material for the purpose of this case.
P.W.5 Janaki Subudhi stated about the dissatisfaction of accused Subasini before her regarding the payment of dowry by the parents of the deceased.
P.W.6 Somanath Sahu is one of the relatives of the deceased who stated that on the previous day of the occurrence, he had been to be house of the petitioner where the petitioner abused the deceased as well as the informant in filthy language and complained about the quality of the dowry articles and he also threw away the dunlop bed received on dowry saying it to be of low quality. He is also a witness to the seizure of the articles from the room where the deceased committed suicide under seizure list Ext.4.
P.W.7 V. Jaga Rao stated about the seizure of gold and silver ornaments under seizure list Ext.4.
P.W.8 Dinabandhu Pradhan was the constable attached to Chatrapur Police Station and carried the dead body from Chatrapur Hospital to M.K.C.G. Medical College and Hospital, Berhampur for post mortem examination.
P.W.9 Naresh Naik was the A.S.I., photographer attached to the office of D.F.S.L. at Chatrapur who accompanied the Scientific Officer to the spot and took some snaps of the spot. He also signed the report prepared by the Scientific Officer under Ext.6.
P.W.10 Gouranga Barik stated about giving of cash and gold ornaments by the informant to the deceased at the time of marriage. He further stated that about a month after the marriage, the deceased returned to her father’s place and she told him that she was being assaulted as the cot, mattress and bed sheet were not upto the standard.
P.W.11 Nabakishore Tarai also stated about the disclosure made by the deceased regarding demand of more money for a scooter by the in-laws.
P.W.12 Babita Sahu is the sister of the deceased and she stated that a month after the marriage, the deceased complained regarding harassment to her in connection with demand of dowry by the petitioner. She further stated that the petitioner had also come to their house and asked the deceased to bring more gold ornaments and cash for purchasing a scooter. She further stated about the physical and mental torture to the deceased by the in-laws’ family members.
P.W.13 Sashirekha Sahu is the mother of the deceased and she also stated about the demand of dowry and physical and mental torture to the deceased by the accused persons.
P.W.14 Dandapani Sahu is the father of the deceased and he also stated about the demand of dowry and physical and mental torture to the deceased in connection with the demand of dowry.
P.W.15 Dr. Suresh Chandra Mahapatra was the Asst. Professor in F.M.T. Department of M.K.C.G. Medical College, Berhampur who conducted the post mortem examination and submitted his report Ext.10.
P.W.16 Dr. Surath Bisoi was attached to R.F.S.L., Berhampur as Scientific Officer and he examined the exhibits sent from the Court of learned S.D.J.M., Chatrapur and gave his opinion under Ext.11.
P.W.17 Jagannath Senapati stated that the informant purchased some clothes from his shop.
P.W.18 Sukadev Maharana was having a carpenter shop at Balugaon and he stated that the informant purchased some wooden furnitures from his shop on the eve of the marriage of the deceased.
P.W.19 Manamohan Mohapatra was the D.S.P. at Chatrapur, who is one of the Investigating Officers.
P.W.20 Alok Kumar Das was attached to Chatrapur Police Station who in the absence of the officer in charge registered the F.I.R. and investigated the case.
The prosecution exhibited fourteen documents. Exts.1, 2, 4 and 12 are the seizure lists, Ext.3 is the inquest report, Ext.5 is the dead body challan, Ext.6 is the report of Scientific Officer, Ext.7 is the written report, Exts.8, 13 and 14 are the Zimanama, Ext.9 is the report of Dr. S.C. Sahu, Ext.10 is the post mortem report and Ext.11 is the opinion report of Scientific Officer of R.F.S.L., Berhampur.
The prosecution also proved three material objects. M.O.I is the saree, M.O.II is the saya and M.O.III is the blouse.
6. The defence plea is one of denial and it was pleaded that the deceased was suffering from some stomach problem for which she was under medication but she could not bear the pain for which she committed suicide and after her death, her family members have foisted the case.
The defence did not examine any witness but proved the report of Dr. Suresh Chandra Mahapatra as Ext.A and invitation Card as Ext. B.
7. The learned Trial Court held in the impugned judgment that the post mortem report is not denied or challenged by the defence and it is also crystal clear that the deceased committed suicidal hanging and unnatural death took place within a period of seven years from the date of her marriage. The learned Trial Court discarded all the evidence including the parents of the deceased but relying upon the evidence of P.W.6, found the petitioner guilty of the offences under Sections 498-A/306 of the Indian Penal Code. The learned Trial Court considered the evidence of P.W.6 and held that in his evidence, P.W.6 has not stated to have any knowledge of torture and further demand of dowry rather it reveals from his evidence that the petitioner was not satisfied with the quality of the cot and its material and on the previous day of death of the deceased, when P.W.6 was called to the house of the petitioner, in presence of the deceased, the petitioner scolded the informant and threw away the pillows and bed sheets complaining that those articles were of low qualities. The learned Trial Court further held that though the defence has taken a plea that the deceased committed suicide due to suffering from some ailment in her stomach and she could not tolerate the pain but the illness of the deceased has not been proved by any documentary medical evidence and therefore, such a plea was held to be an afterthought one and without any basis. The learned Trial Court further held that since the petitioner was not satisfied with the cot and its materials, there was dissension between him and the deceased and he burst his anger not only at the deceased but also before P.W.6 which according to the learned Trial Court amounts to mental torture which ultimately compelled the deceased to put an end to her life and accordingly, she hanged herself when the petitioner was absent from his house and had gone to the office.
The learned Appellate Court also analyzing the provision under Section 113-A of the Evidence Act and the facts and circumstances of the case held that the learned Trial Court was justified in convicting the petitioner under Sections 498-A and 306 of the Indian Penal Code.
8. Mr. Biswa Kumar Mishra, learned Counsel for the petitioner vehemently contended that when the evidence of all the material witnesses including the parents of the deceased have been disbelieved and the evidence of P.W.6 suffers from material contradictions and when there is no proximate link between the act of the petitioner with the commission of suicide by the deceased, the learned Trial Court erred in convicting the petitioner under Section 306 of the Indian Penal Code. He further contended that the learned Trial Court should not have invoked the provision under Section 113-A of the Evidence Act since the prosecution has failed to establish any kind of cruelty or torture on the deceased.
Mr. Jyoti Prakash Patra, learned Additional Standing Counsel appearing on behalf of the State submitted that even though the co-accused persons who are the mother and sister of the petitioner have been acquitted by the learned Trial Court but the case of the petitioner who is the husband of the deceased stands in the different footing and materials on record indicates that he was squarely responsible for the untimely death of the deceased as the deceased could not tolerate the abusive words hurled to her father in presence of P.W.6 on the previous day of occurrence which prompted her to take extreme step to end her life and therefore, it is the petitioner who abated the commission of suicide and therefore, there is no infirmity or illegality in the impugned judgments and order of conviction passed by the Courts below.
9. There is no dispute that the conviction of the petitioner is based on the sole testimony of P.W.6. It is the settled principle of law that in order to base an order of conviction on the testimony of a solitary witness, the evidence of such witnesses must be clear, cogent, convincing, fully truthful, unblemished and completely above board.
Analysing at the evidence of P.W.6, it is found that not only he is closely related to the deceased but he has stated due to illness, he could not attend the marriage of the deceased and four days after the marriage, he went to the house of the petitioner and found the deceased was cooking in the kitchen and on his enquiry, the father-in-law of the deceased expressed his pleasure and satisfaction over the conduct and behaviour and cooking of the deceased. Though he has stated that two years after the marriage, he was called by the petitioner to his house and when he arrived there in the house of the petitioner, the petitioner abused in filthy language towards the deceased as well as to the informant (P.W.14) complaining about the quality of the dowry articles brought by the deceased and the petitioner also threw away the dunlop bed received on dowry saying it to be of low quality and that on the next day, the deceased died, but it has been confronted to P.W.6 and proved through the Investigating Officer (P.W.20) that P.W.6 has not stated before him that in his presence, the petitioner abused the informant in filthy language on the ground that he had given low quality articles and so saying, he threw away the dunlop pillow. Thus the evidence which P.W.6 has given in Court relating to the conduct of the petitioner on the previous day of the occurrence has not stated by him before the Investigating Officer but stated for the first time in Court after two years of the occurrence and therefore, it cannot be said that P.W.6 is a truthful witness on whom implicit reliance can be placed.
10. Section 306 of the Indian Penal Code deals with abetment of suicide. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 of the I.P.C. Merely because a married woman committed suicide within seven years of her marriage does not, ipso facto result into the presumption of abetment of suicide by the husband or his relatives under Section 306 of the Indian Penal Code. There must be evidence that suicide was committed by the deceased due to direct and alarming encouragement or incitement by the accused leaving no option but to commit suicide. The clear mens rea to commit the offence must exist. Simply because the victim was subjected to torture would not mean that there was abatement to commit suicide. Only when it is established that the deceased committed suicide within a period of seven years from the date of her marriage and she was subjected to ‘cruelty’ by her husband or any relative of her husband, presumption under Section 113-A of the Evidence Act may be drawn by the Court having regard to all the other circumstances of the case. The circumstances or the happenings on which a Court may presume that the suicide committed by a woman was abetted by her husband or any relative of her husband would depend on the facts and circumstances of each case. Unless the initial onus that the accused subjected the deceased to cruelty as defined in Section 498-A of the Indian Penal Code is discharged by the prosecution, the question of drawing presumption under Section 113-A of the Evidence Act does not arise. There must be existence of proximate link between the cruelties imparted as well as the death. If the alleged incident of cruelty is remote in time which is not likely to disturb the mental equilibrium, it will be no consequence. Under Section 4 of the Evidence Act, it is provided that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. The expression ‘may presume’ confers discretion on the Court to presume a fact or not to presume it. The discretion must not be whimsical, arbitrary, vague or fanciful but it must be exercised in accordance with law. Thus, from the meaning of the term may presume as appears in Section 113-A of the Evidence Act, it is clear that it is not incumbent upon a Court to presume that whenever a woman dies within seven years of the marriage and she was subjected to cruelty, she was abetted to commit suicide by her husband or the relatives of her husband.
11. Coming to the facts of the case, when all other evidence have been discarded by the learned Trial Court and coaccused persons have been acquitted and reliance has been placed only on the evidence of P.W.6 which is full of material contradictions, therefore, it cannot be said that the version of P.W.6 is clear, cogent, convincing, fully truthful, unblemished and completely above board so as to hold that the prosecution has proved beyond all reasonable doubt that it is the petitioner who abetted the commission of suicide of the deceased.
The father of the deceased P.W.14 is totally silent in his evidence regarding the incident which P.W.6 narrated to have happened on the previous day of occurrence. In ordinary course of nature, P.W.6 would have informed the same to P.W.14. Mere mention of such aspect in the first information report is not sufficient to take it as substantive piece of evidence. Therefore, the evidence of P.W.6 that such an incident happened on the previous day of the occurrence is not acceptable.
In the light of the above discussion, I am of the considered opinion that the impugned judgment and order of conviction passed by the learned Trial Court which was confirmed by the learned Appellate Court are not sustainable eye of law and accordingly, the same are hereby set aside and the petitioner is acquitted of the charges under Sections 498-A and 306 of the Indian Penal Code.
The petitioner has been released on bail by this Court during pending of the revision petition. He is discharged from the liability of his bail bonds. His personal bonds and surety bonds stand cancelled.
Accordingly, the CRLREV is allowed.
DISCLAIMER: The above judgement is posted for informational purpose ONLY. Printout/ Copy from this website are not admissible citation in the Court of Law. For a court admissible copy contact your advocate.
You may contact me for consultation or advice by visiting Contact Us
Leave A Comment