Judgment - Section 304B - Dowry Death

Court: Orissa High Court

Bench: JUSTICE Satrughana Pujahari

Chandra Sekhar Patnaik Vs. State Of Orissa On 4 May 2017

Law Point:
Indian Penal Code, 1860 Sections 306, 498A – Abetment of Suicide Cruelty Conviction of accused appellant unsustainable on basis of evidence adduced by prosecution Evidence shows that deceased developed sense of fear that her in-laws would taunt her vigorously and she would be subjected to harassment and cruelty since her father failed to redeem mortgage of her gold ornaments and unable to digest such humiliation she committed suicide Such an event will not constitute offence or establish guilt of appellant under Section 306, IPC Conviction under Sections 306 and 498A, IPC set aside.

JUDGEMENT

Counter affidavit filed today is taken on record.

1.This appeal arises out of the judgment of conviction and order of sentence dated 9.1.1992 of the learned Assistant Sessions Judge-cum-C.J.M., Ganjam in Sessions Case No. 13 of 1990 holding the appellant guilty under Sections 306 and 498-A of the Indian Penal Code, 1860 (for short “the IPC”) and sentencing him to undergo R.I. for a period of 7 years with a fine of Rs. 3,000, in default, to undergo R.I. for a further period of six months under Section 306 of IPC and R.I. for two years with fine of Rs. 2.000, in default, to undergo R.I. for a further period of four months under Section 498A of IPC.

2. Prosecution case in a nutshell is that on 12.9.1988 the informant – Judhistir Patnaik of village- Bananaipur (P.W.12) lodged F.I.R. (Ext.16) at Hinjili Police Station wherein it has been stated that marriage of his daughter – Kaberi was solemnized with Chandra Sekhar Patnaik (appellant) of Kaithabeda under Hinjili Police Station. The informant gave articles in the marriage according to his capacity, but in-laws of his daughter used to demand agricultural land to an extent of Ac.2.00 and cash of Rs. 20,000 and used to taunt and harass his daughter. It was further complained that due to non-fulfilment of demand of dowry, in the night of 10.9.1988 his daughter was compelled to commit suicide. On the basis of the F.I.R., Hinjili P.S. Case No. 56 dated 14.9.1988 was registered against family members of deceased’s father-in-law under Section 304B of IPC and the police seized incriminating materials, dead body was sent for post-mortem examination where an abrasion on the back of left arm and ligature mark on the neck were found. According to the concerned doctor, cause of death of the deceased was due to asphyxia as a result of ante-mortem hanging. Upon investigation, charge-sheet for the offence punishable under Sections 306 read with Section 498A of IPC was submitted against the appellant alone before the competent Court who committed the case to the Court of Sessions for trial. The appellant having pleaded not guilty to the charge, to prove its case against the appellant, prosecution examined 18 witnesses and exhibited 28 documents and M.Os.I and II. In defence 3 documents were proved. Incriminating evidence was put to the appellant under Section 313 of Cr.P.C. in which he submitted that he was falsely implicated in the case. On appreciation of the evidence and materials placed on record, the learned Trial Court held that the deceased committed suicide due to continuous cruelty caused to her in connection with demand of dowry and the appellant having abetted the commission of suicide held, guilty of the charge under Sections 306 and 498A of IPC and sentenced him as aforesaid.

3. The learned Counsel for the appellant at the very outset submitted that there being no iota of evidence that the appellant subjected the deceased to cruelty in connection with demand of dowry and there being nothing on record to support a case of abetment of suicide, the impugned judgment of conviction and order of sentence needs interference.

4. Assailing such contention, the learned Counsel for the State contended that there being overwhelming evidence in support of charge under Sections 498-A and 306 of IPC, the impugned judgment of conviction and order of sentence needs no interference.

5. Contentions raised at the Bar need careful evaluation of oral and documentary evidence to reach at a conclusion as to whether the finding of guilt recorded by the Trial Court is on the basis of evidence on record.

6. The contention of the learned Counsel for the appellant in essence was that the finding of the Trial Court holding the appellant guilty under the aforesaid provisions is based on surmises and conjectures. The other contention is that the Trial Court has misread and misinterpreted the averments emanating from Exts.1 to 4 and Exts.A and B and being swayed by the fact that the deceased committed suicide, reached to an erroneous conclusion against the appellant. From the very inception the defence has taken a stand that the father-in-law of the deceased had given her some gold ornaments including a “gold necklace” but during first visit of the deceased to her parental home after marriage, her father who was in need of money had pledged such gold necklace in a Bank and when despite repeated approach of the deceased, her father failed to redeem the mortgaged ornaments, on frustration and despire the fragile weak minded deceased committed suicide. Keeping such contention in mind, it is essential to sift the evidence of prime prosecution witnesses. P.W.1 is the sister of the deceased. Her evidence revealed that prior to the marriage there was no demand for dowry but in the marriage alter, the family members of the appellant demanded 10 Varanas (Ac.2.00) of paddy lands towards dowry and they having failed to satisfy such demand of dowry the family members of the appellant started ill-treating her sister. In cross-examination made by the defence, this witness has admitted that at the time of marriage, on behalf of the appellant one gold necklace and one set of ear ring were provided to her sister. She, however, denied the defence suggestion that her father had mortgaged those gold ornaments and when failed to redeem the mortgage despite repeated demands by her sister, she apprehended ill-treatment from her in-laws. Her evidence further revealed that she had stated before the Investigating Officer that her father had mortgaged all ornaments of the deceased in Rushikulya Gramya Bank and for that, she became apprehensive that she might be subjected to torture by the appellant and his parents. P.W.12, the father of the deceased who had set the law into motion, taking a leaf out of the evidence of P.W.1, has deposed that his daughter denied to proceed to her marital home alleging ill-treatment by the members of her in-laws’ family as he failed to provide 10 Varanas (Ac.2.00) of land. This witness has also added that they having failed to meet the demand of dowry, the in-laws of his daughter did not allow the deceased to proceed to her parental home. This witness, however, denied to have mortgaged the gold necklace and ear ring of his daughter given by her father-in-law. This witness has also conceded that there is no demand of dowry by the appellant before the marriage. However, this witness denied the defence suggestion that he had stated before the I.O. that he had mortgaged the gold necklace and ear ring of his daughter by her in-laws. P.W.13 is the brother of the deceased. He has stated that the family members of the appellant had demanded Ac.2.00 of land and a sum of Rs. 10,000 as dowry. This witness has also denied the defence suggestion that he had stated before the I.O. that they had mortgaged gold ornaments of their sister which ornaments were given by her father-in-law. This P.Ws.1, 12 and 13 are sister, father and brother of the deceased respectively. None of them whispered a single word that it was the appellant who demanded dowry nor they have stated that in presence of the appellant his parents demanded dowry. Similarly, P.Ws.1, 12 and 13 never stated a single word that it was the appellant who subjected the deceased to harassment and cruelty for non- satisfaction of dowry. All the witnesses have stated that the family members of the appellant demanded dowry and they subjected the deceased to cruelty for such non-payment of dowry. This material piece of evidence, however, has not been taken note of by the learned Trial Court. Possibly, a piece of evidence has escaped the notice of the learned Trial Court and on misconception of fact, affirmatively has held that it was the appellant who subjected the deceased to continuous torture for her inability to meet the demand of dowry.

7. The matter does not end there. The prosecution placed much reliance on the series of letters written by the deceased to her parents marked as Exts.1 to 4 to hold that the deceased was subjected to cruelty for non-payment of dowry articles. Ext.1 is the letter dated 12.3.1986 said to have been written by the deceased and relied upon by the prosecution. In that letter the deceased requested her mother to send her father with her gold necklace, for withholding of which she is being regularly taunted by her in-laws. In the said letter she has indicated that she did not bring even ACHU and SINDURA from her parental home and when their gold necklace withheld by her parents she is apprehending danger. However, in this letter she has stated that she was living happily in the in-laws’ house except for that gold necklace. Ext.2 is the letter dated 4.4.1986 wherein she has reiterated her demand to send her father with their gold necklace as she is continuously apprehending danger for withholding their gold necklace. Ext.3 is another letter dated 15.4.1986 where the deceased has further reiterated to send their gold necklace without further delay where it is also stated that she is spending her life happily. Ext.4 is another letter dated 1.5.1986 where she questioned her mother as to why her father not sending back their gold necklace? The inference drawn from Exts.1 to 4 leads to one and only conclusion that the parents of the deceased when kept back the gold necklace given to her by her in-laws, she made repeated requests through such correspondences to get back that gold ornaments to avoid any untoward situation. In all such exhibits, the deceased as appeared, apprehended danger to her life for withholding gold necklace given by her in-laws. Prosecution when heavily relied upon those documentary evidence and when inferences drawn from all such documents supports the defence version taken from very inception, I find the Trial Court has failed to consider such documentary evidence in its proper perspective. The evidence of the Investigating Officers (P.Ws.17 and 18) unerringly revealed that P.Ws.1, 12 and 13 had stated before them that they had mortgaged the gold ornaments of the deceased. The omission to state such material facts in their respective evidence, P.Ws.1, 12 and 13 have suppressed the genesis and origin of the occurrence casting a serious reflection on the bona fides of the prosecution.

8. Thus, on careful evaluation of the evidence of the prime prosecution witnesses, I am convinced that the appellant never demanded any dowry articles in shape of agricultural land and money and he never subjected his wife, the deceased to any harassment and cruelty, all the witnesses have inculpated the in-laws of the deceased and none of them had whispered a single word inculpating the appellant. In this background, the evidence of P.Ws.3 and 5 that on the previous night of the occurrence they had seen the appellant and his father assaulting the deceased in front of his house demanding Rs. 20,000 is a bundle of falsehood and cannot be relied upon. The witnesses may lie but circumstances do not. The evidence revealed that P.Ws.3 and 5 were in loggerheads with the appellant’s family over the years. It is highly possible and probable as contended on behalf of the appellant that once those arch enemies found the deceased committed suicide, they conspired between them and created a cock and bull story to teach lesson to the appellant’s family taking undue advantage of the situation. Moreover, this P.Ws.3 and 5 have contradicted each other in material particulars of the case. P.W.3 has stated that Antaryami Patnaik, the father of the appellant threatened the deceased to kill unless her father pays Rs. 20,000 towards dowry where Gauri Sankar Patnaik, the younger brother of the appellant appeared and kicked the deceased on her neck and the appellant carried the deceased inside home and closed the door. P.W.5 on the other hand, has stated that they noticed Antaryami Patnaik holding the tuff of hair of the deceased and the appellant and his brother inflicting kicks on the deceased and all of them carried the deceased inside. When both of them were on the outer verandah of P.W.3’s house the different narration of some events leads to one and only conclusion that they had not seen any such incident and intending to take revenge against the appellant’s family with whom they are in loggerheads with civil dispute over the decades deposed falsehood. Both these witnesses have also stated before the Investigating Officer that they are in inimical terms with the appellant’s family over the years.

9. No doubt, it is well settled law that enmity by itself cannot be a ground for total rejection of their evidence. Merely because there subsisted enmity between the witnesses, on the one hand, and the accused on the other is not sufficient to throw overboard the testimony of the witnesses unless there is further material on which the testimony can be doubled. Where there is enmity between the prosecution witnesses and the accused, the evidence has to be scrutinized with greater care, which means that the evidence has to be tested carefully in the crucible of probabilities. In the backdrop of such settled law, the evidence of P.Ws.3 and 5 revealed that a narrow land intervened between their house and the house of the appellant. They claimed to be present on the outer verandah of the P.W.3 but when they narrated the incident differently touching the material aspect of the incident, no implicit reliance can be placed on such tainted evidence. On the contrary, the evidence of P.W.2 reveals that he is the immediate neighbour of the appellant there being a small wall intervening the houses. He is the first person who reached the site on the morning when he heard cry of inmates and on his arrival he found the deceased committed suicide by hanging. P.Ws.3 and 5, however, did not whisper a word if they had seen the deceased committing suicide by hanging. This P.W.2 has also added that he did not hear any commotion in the house or in front of the house of the appellant on that night. His evidence further reveals that there is a half partitioned wall between the house of the appellant and his house and everything in the house of the appellant is visible from his house. This witness is not declared hostile. He has supported the prosecution case as to suicidal death of the deceased by hanging. He had seen Kaberi (deceased) still hanging from the beam with a rope around her neck. That rope was cut by the appellant and the body was brought down. He poured water on the face of the deceased hoping against hope that the deceased may breath to life but it proved otherwise. This evidence of P.W.2 cuts at the root of the tainted testimony of P.Ws.3 and 5. No implicit reliance can be placed on such testimony in a serious case of this nature where those witnesses as appeared were interested in implicating the appellant.

10. I have given my anxious consideration in the matter and studied the evidence of the prosecution witnesses vis-a-vis the judgment of the lower Court. In my considered opinion, the evidence adduced against the appellant does not establish the case under Sections 306 and 498A of IPC on any count. On the basis of such nature of evidence of the prosecution witnesses, conviction of the appellant cannot be sustained.

11. That apart, record reveals in substance that the deceased stayed back in her parental house over two years and despite repeated approach of husband and in-laws she denied to proceed. In such situation, on the application of the father-in- law of the deceased, a community meeting was convened where on the repeated direction of the community chief, the P.W.12 having no other alternative but to send the deceased to her in- laws house on 9.9.1988. The circumstances lead to one and only conclusion that when the father of the deceased did not redeem her gold ornaments apprehending danger to her life the deceased did not venture to join the matrimonial home and when she was compelled to proceed against her choice in all probabilities the emotionally surcharged and weak in mind and endurance, the deceased committed suicide in fear and apprehension planted in her mind apparently brought the eventual tragedy. Such an event will not constitute the offence or establish guilt of the appellant either under Section 498-A or Section 306 of IPC.

12. The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one’s endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in a set of established facts, as held by the Apex Court in the case of K.V. Prakash Babu v. State of Karnataka, III (2016) DMC 737 (SC)=VIII (2016) SLT 225=IV (2016) DLT (CRL.) 730 (SC)=2017 (I) OLR (SC) 371. Further, the Apex Court in the said case held that there is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case.

13. In the instant case, as the evidence would limpidly show that the deceased developed a sense of fear that her in-laws would taunt her vigorously and she would be subjected to harassment and cruelty since her father failed to redeem the mortgage of her gold ornaments and unable to digest such humiliation she committed suicide. It is manifest that the deceased was under constant fear which has no boundary and the seed of apprehension planted in mind so severely that has brought the eventual tragedy. But, such an event will not constitute the offence or establish the guilty of the appellant under Section 306 of IPC. I would repeat that there is no pinch of evidence brought on record that the appellant ever demanded dowry and subjected the deceased to cruelty for her inability to meet such demand.

14. Consequently, for the aforesaid reasons, this criminal appeal is allowed. The conviction under Sections 306 and 498-A of IPC is set-aside. The appellant is acquitted of the charge. The bail bonds shall stand cancelled and surety discharged.

L.C.R. received be sent back forthwith along with a copy of the Judgment.

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