JUDGMENT
P.K. Tripathy, J.
1. Appellant No. 1 is the husband of deceased Suryamani Patra (hereinafter referred to as ‘the deceased’), Appellant Nbs. 2 and 3 are respectively the father-in-law and mother-in-law of the deceased, Marriage between the appellant No. 1 and the deceased was performed on 1-3-1993 and on 19-11-1993 she died due to consumption of poison i.e. insecticidal substance. Prosecution case to the aforesaid effect is not disputed by the parties. Because of the aforesaid death of the deceased, appellants faced a trial for the charge under Sections 498-A, 304-B/34, IPC read with Section 4 of the Dowry Prohibition Act (in short ‘the Act’). Learned Additional Sessions Judge, Jeypore on 20th January, 2000 delivered the impugned judgment of conviction conviting each of the appellants for the aforesaid offences and sentencing each of them to undergo rigorous imprisonment for 10 (ten) years for the offence under Sections 304-B/34, IPC, rigorous imprisonment for two years for the offence under Section 498-A/34, IPC and rigorous imprisonment for six months for the offence under Section 4 of the Act along with a fine of Rs. 1,000/-each on that count. Being aggrieved by that order of conviction, appellants have preferred this appeal. Inter se relationship and the cause of death has not been disputed by the accused persons.
2. Prosecution also alleged that at the stage of negotiation of marriage there was demand of dowry i.e., cash of rupees one lakh and ultimately it was settled at a cash rupees fifty thousands and it was agreed upon by appellant No. 2 that such dowry amount be paid within one year from the date of marriage and with that understanding marriage was performed. After the marriage, as alleged by the prosecution, there was ill-treatment and torture to the deceased and also misbehaviour to the family members of her paternal house by not permitting her to make customary visit to parents house soon after the marriage, asking her to bring further dowry articles like Refrigerator, gold and garments on her subsequent customery visit to her parents house and misbehaving with her brother when he had gone to invite for customary visit or to see the well-being of the deceased. It is also alleged that such ill-treatment on the deceased was intimated to informants’ family by a co-villager of the appellant, i.e., S. Mallikeswar Patra (P.W. 11). It is alleged by the prosecution that on 19-11-1993 on getting information when the father of the deceased (P.W. 7) with a common relative of both the families (P.W. 9) reached in the house of the deceased, she was found ill having taken poison and according to P.W. 7 she made dying declaration stating that poison was administered to her by the accused persons conjointly. She was taken to the hospital and there she was declared dead.
3. Appellants taking the plea of denial for all and the plea of alibi for appellants 1 and 2 (husband and father-in-law of the deceased) denied to the charge and claimed for trial. In course of the trial prosecution examined as many as 13 witnesses. Out of them, P.W. 1 the informant, is the brother of the deceased, P.W. 7 is the father; P.W. 8 is the elder sister; P.W. 9 is a cousin through the paternal side. Amongst the other witnesses, P.W. 5 is the priest and P.W. 12 is another Samudhi of P.W. 7. The Doctor who conducted the post-mortem was examined as P.W. 10 and the Investigating Officer as P.W. 13. Rest of the witnesses are from the village of the accused/appellants. But some of them were declared hostile by the prosecution because they advanced statements supporting the appellants. Out of ten documents exhibited from the side of the prosecution postmortem report is Ext. 3. report of the chemical examiner Ext. 9 and the FIR Ext. 1. Those are the three relevant’ documents which require reference and consideration. Accused persons also examined two witnesses as O.P.W. 1 and 2, both of whom were their neighbours.
4. In his evidence P.W. 1 stated about the manner in which the marriage negotiation proceeded with demand of heavy dowry amount and how that marriage negotiation finalised on the term that a cash of Rs. 50,000/- was to be given after a year and until such amount paid the parents of the deceased were to make payment of 20 bags of paddy each year for the deferred payment of dowry. He also narrated about the attitude shown by the appellants when he visited to call her sister for customary visit. He has alleged that deceased was poisoned by the accused persons. During cross-examination he was confronted with all such statements with suggestion that no such statement was made by him before the Investigating Officer at the time of investigation. Though P.W. 1 denied to such suggestion but P.W. 13 admitted about such omission in the statement under Section 161, Cr. P.C. of the P.W. No. 1. In other words, the averments made by P.W. 1 in his deposition before the Court was not there in his statement under Section 161, Cr. P.C. Thus, it is a case of material omission.
5. P.W. 7 while narrating about the manner in which the marriage was finalised also stated about the ultimate demand of Rs. 50,000/- towards dowry and the settlement relating to deferring the payment for a period of one year and to compensate that by twenty bags of paddy per annum until payment of that amount: He has also alleged about appellants not responding to their requests to leave their daughter for customary visit soon after the marriage. His further evidence is with respect to dying declaration said to have been made by the deceased. According to him on getting information regarding serious condition of the deceased he proceeded to the occurrence village in the motor cycle along with P.W. 9 and there he saw the serious condition of the deceased and that deceased stated to him that the appellants administered poison on her by use of force. In the cross-examination, he denied to the suggestion that he did not make any statement relating to settlement of the dowry and making of dying declaration by the deceased. That omission was assertively confronted to the P.W. 13 who had recorded the 161, Cr. P.C. statement of P.W. No. 7.
P.W. 8, the elder sister of the deceased stated about not allowing the deceased with her husband to pay respect to the family deity after the marriage because of non-payment of dowry amount. Such a statement was also made by P. W. No. 1 in his evidence. In that respect the priest (P.W. 5) has contradicted them by stating that –“After solemnisation of the marriage both the bride and groom had a Darshan of the family Diety in the house of the parents of the bride.”
P.W. 9 is admittedly a nephew of P.W. 7 and therefore he is a cousin of the deceased. He is also related to the appellants. His evidence is of most relevance inasmuch as on the date of occurrence in the morning time he had visited to the house of the appellants. He found appellants 1 and 2 absent from the village and appellant No. 3 as well as the deceased were present in the house besides other inamates and at that time he could notice that deceased was looking pale and on being asked by him she did not disclose any reason for the said paleness. From that house when P.W. 9 came to the village of P.W. 7 and after extending the invitation when he was taking his food (lunch) in the house of P.W. No. 7, at that time intimation came regarding serious condition of the deceased and in his motor cycle he and P.W. No. 7 immediately proceeded to the occurrence village. Thereafter his evidence is that —
“When we reached village Kongra we found a huge crowd gathered in the house of accused Bhaskaro. I detected a very strong smell of insecticide. Kausalya P.W. 4 and Sarojini were holding the deceased and were wiping the froth which was coming out of the mouth of the deceased. At that time she was not in her senses. Then in order to reach Suryamani at Nabarangpur Hospital as early as possible we attempted to take her in my motor-cycle, a resident of village Kongra was driving the motor cycle and I was holding Suryamani in my arms and was sitting on the rear seat, but after some time I could not carry the weight of Suryamani. So we came back to village Kongra in order to “shift her in the power tiller available in that village. On our return I found that accused Bhaskar Patro and one-Sitaram Patro came to their house. They went and requested P.W. 2 for the power tiller. Accordingly the power tiller was brought and Suryamani was brought to Nabarangpur Hospital, where she was declared to be dead by the Doctor.”
In his evidence he has not stated about any dying declaration being made by the deceased to any query made by P.W. 7.
So far as the other witnesses are concerned, except P.W. 12, evidence of such witnesses goes to show that it is the deceased who took poison and ultimately suffered the death and there was no ill-treatment or cruelty on her by the appellants.
6. The provision in Section 304-B, IPC is attractable in a case where death of a woman is caused within seven years of her marriage but not under normal circumstances and if that can be linked to any ill-treatment or harassment soon before her death by her husband or any relative of her husband for or in connection with any demand for dowry. In this case, death of the deceased, as noted above, is within the first year of the marriage and she did not die under normal condition. Therefore, if the prosecution has succeeded in proving that the deceased was subjected to any ill-treatment or harassment on account of or in relation to demand of dowry then it can be said that a case under Section 304-B, IPC is proved. Totality of the prosecution allegation as it stands goes to show that there was demand of dowry from P.Ws 1 and 7 at the stage of negotiation of marriage and there was a settlement on that account. Evidence on record including that of P.Ws. 1, 7, 8 and 9 does not disclose that there was any ill-treatment or cruelty on the deceased for or on account of non-fulfilment of the dowry demand or that such Ill-treatment or cruelty on her was made any time after her return from her parents’ house. Evidence on record also does not disclose that during her stay in her parents’ house she had stated to them that there was any manner of ill-treatment or harassment on her. In that respect, the prosecution evidence is completely silent. For reasons best known to the prosecution it put emphasis on prove of the fact of demand of dowry at the stage of settlement and finalisation of negotiation for marriage and has not tendered any evidence worth the name if there was any ill-treatment or cruelty on the deceased by her in-laws soon before her death or at any point of time.
7. Learned Additional Sessions Judge took note of ratio in the case of Om Prakash v. State of Punjab, 1993 SC 138 : (1992 Cri LJ 3935) in which the Apex Court has said that—
“………It is the duty of the Court, in a case of death because of torture and demand for dowry, to examine the circumstances of each case and evidence adduced on behalf of the parties, for recording a finding on the question as to how the death has taken place. While judging the evidence and the circumstances of the case, the Court has to be conscious of the fact that a death connected with dowry takes place inside the house, where outsiders who can be said to be independent witnesses in the traditional sense, are not expected to be present. The finding of guilt on the charge of murder has to be recorded on the basis of circumstances of each case and the evidence adduced before the Court…….”
Trial Court has also referred to the case of Hem Chand v. State of Haryana, reported in (1995) 1 D.M.C. 86 : (AIR 1995 SC 120) relating to the manner in which the evidence should be appreciated with the aid of Section 113-B of Evidence Act, Quoted portion of the ratio from that case is quoted below for ready reference :
“A reading of Section 304-B, IPC, would show that when a question arises whether a person has committed the offence of dowry death of a woman what all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such persons, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the Court shall presume that such a person has caused the dowry death. It can, therefore, be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not, by virtue of the presumption, he is deemed to have committed the dowry death if there was cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113-B of the Evidence Act as to the dowry death. It lays down that the Court shall presume that the person who has subjected the deceased wife to cruelty before her death shall presume to have caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304-B, IPC, also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied.”
8. While not disputing on the above noted settled position of law relating to the manner of appreciation of evidence learned Counsel for the appellant argues that the evidence on record does not satisfy the factual requirement to constitute the aforesaid evidence against the appellants relating to the death of the deceased and complicity of the appellants in that crime. He criticises the impugned judgment of the trial Court on the ground that the order of conviction has been recorded in the absence of required evidence but by merely following the aforesaid principle enunciated by the Apex Court. In that respect, learned Counsel for the State is unable to give reply on the following aspect.
9. Evidence of P.Ws. 1 and 7 does not prove relating to an ill-treatment or harassment made by the appellants on the deceased on account of or in relation to demand of dowry and for non-payment of the same by her parents. While P.W. 1 has stated nothing in his deposition regarding any ill-treatment or cruelty on the deceased by the appellants for any reason whatsoever, in his evidence P.W. 7 in his examination-in-chief alleged that deceased had complained before him about ill-treatment on her by her in-laws because of non-fulfilment of certain dowry demand. That part of his evidence as made out in record is not supported by the evidence of any other witnesses. He also did not make any such statement during his examination by the investigating officer. Therefore, that amounts to a material omission. Apart from that, the mother of the deceased, who according to P.W. 7 had visited to the house of the deceased, was not examined to corroborate to the aforesaid evidence of P.W. 7. It also appears from the evidence of P.W. 7 that he tried to introduce the theory of dying declaration said to have been made by the deceased implicating the appellants. The circumstance emerging from the other evidence on record goes to show that she did not make any such dying declaration. In that respect, the evidence of P.W. 9 is very relevant inasmuch as according to him soon after their (P.Ws. 7 & 9) arrival, because of the strong smell of insecticidal substance and the froth coming out from the mouth of the deceased step was taken for her immediate shifting to the hospital at Nowrangpur on the motor-cycle of P.W. 9 and at that time P.W. 9 as the pillion rider carried the deceased by giving support to her body. Therefore, that goes to indicate that the deceased was not in senses by the time P.Ws. 7 and 9 reached the occurrence house. Be that as it may, P.W. 9 who remained all along with P.W. 7 till the shifting of the deceased towards hospital has not stated anything regarding any query made by P.W. 7 or dying declaration made by the deceased. In his evidence P.W. 9 also stated that in the morning hours when he reached the house of the appellants, at that time appellants 1 and 2 were not present in the house, meaning thereby their absence from the village. In the later part of his evidence he has stated that when he found it was not possible to carry the weight of the deceased while taking her to the hospital on the motor-cycle, they returned to the village and by then appellants 1 and 2 had arrived. This circumstance also suggested to the situation that by the time the deceased took poison appellants 1 & 2 were not present in the house. In other words, the dying declaration which P.W. 7 has said to have been made by the deceased does not fit in with such fact situation. Therefore, the material omission in his evidence by P.W. 7 relating to the ill-treatment and cruelty on the deceased on account of non-payment of dowry and the attitude of P.W. 7 by exaggerating things by creating the dying declaration undoubtedly establishes that lie is highly interested against the appellants only because the deceased suffered a death within one year from the date of her marriage. Such evidence cannot be accepted in the absence of corroboration. The other evidence on record did not subscribe corroboration to his evidence that the deceased was subjected to ill-treatment or cruelty or harassment soon before her death by any or all the appellants relating to non-fulfilment of dowry. In fact, if the evidence of P.Ws. 1 and 7 are to be accepted relating to the manner in which the dowry amount was fixed, the aforesaid evidence also does not stand to reason relating to the allegation of repeated demand of dowry. P.Ws. 1 and 7 have stated that it was agreed upon by the appellants that the dowry amount be paid after a year and for that deferred payment some bags of paddy be paid in lieu of interest/compensation. If that was so, then there was no necessity for the appellants to behave in the complained manner from the date of marriage till the date of death of the deceased. Learned Addl. Sessions Judge did not look to this aspect of the case very much readable from the evidence on record and undoubtedly he committed an error in blindly following the above quoted ratios without a factual backing from the prosecution evidence.
10. Evidence of P.W. 9 in the above context has remained credible inasmuch as his evidence in examination-in-chief to the above noted effect has not been challenged by the prosecution either to be untrue, incorrect or contradictory. Besides that, the other witnesses, i.e. neighbours of the appellants and the washer women all have made statement which is consistent with the evidence of P.W. 9 on one aspect or the other relating to no ill-treatment or cruelty or relating to consumption of poison. Those witnesses were, however, subjected to the leading question by the prosecution Under Sections 145 and 154 of the Evidence Act. Only because of that such evidence cannot be discarded when that runs in confirmity with acceptable evidence from the side of the prosecu-tion. Apart from that, P.W. 11 who according to the prosecution had witnessed the manner of ill-treatment and cruelty on the deceased has not supported the prosecution. Even if his evidence is discarded on the ground of hostile attitude to the prosecution but prosecution could have proved the letter said to have been written by him addressed to P.W. 7 intimating therein about the alleged ill-treatment on the deceased. Prosecution did not do so and no explanation is forthcoming for non-producing and non-proving that letter. That creates a doubt about existence of such a letter containing such allegations of ill-treatment and cruelty.
11. The above discussed evidence and the facts and circumstances thus lead this Court to hold that prosecution has not been able to substantiate the charge Under Sections 304-B/498-A/34, IPC beyond all reasonable doubt.
12. So far as the allegation Under Section 4 of the Dowry Prohibition Act is concerned, the evidence of P.Ws. 1 and 7 read with evidence of P.W. 12 are the relevant evidence which has been relied on by the prosecution. When according to the aforesaid witnesses there was a deed of settlement relating to payment of dowry, prosecution has remained without any explanation for not producing any such document. In view of the hostileness of the aforesaid witnesses as against the appellants, in the absence of producing the corroborative evidence, this Court does not find it safe to rely on such evidence to concur with the order of conviction Under Section 4 of the D.P. Act. For that reason, even the order of conviction Under Section 4 of the D.P. Act is not sustainable.
13. For the foregoing reasons, this Court finds that the trial Court without proper appreciation of evidence with due reference to the relevant penal provision, wrongly recorded the order of conviction and, therefore, the same is illegal and not sustainable. Accordingly, the impugned order of conviction is set aside and the appellants are acquitted by granting benefit of doubt. It is stated that appellant No. 1 is still in jail. Hence he be set at liberty forthwith. Bail bonds of appellants 2 and 3 shall stand concelled.
The Crl. Appeal is accordingly allowed.
