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1996(1) CRIMES 59 (H.C)
ORISSA HIGH COURT
A. Pasayat, J.
Keshab Chandra Panda - Appellant
versus
State - Respondent
Criminal Appeal No. 91 of 1993
Decided on 21-7-1994
Counsel for the parties:
For the Appellant: M/s. Debasis Panda & H.S. Pati
For the Respondent: B. Das, Addl. Standing Counsel.
IMPORTANT POINT
If the case is established there car be a conviction under both Sections 304-B and 498-A Indian Penal Code.
Headnote:(i) Indian Penal Code, 1860 - Section 304 B - Dowry death - Appeal against conviction and sentence - Accused-Appellant contending that evidence on record falls short of requirement to establish offence State averred that acts leading to dowry death abominable acts and cruel to the core - Elaborate analysis made to find accused guilty - No interference called for - Even if offence under Section 304-B not made out offence under Section 498-A made - 8asic requirement of cruelty or harassment soon before death to bring in application of Section 304-B absent Conclusions of learned trial Judge unsustainable - Sentence awarded set aside. (Paras 7 and 8)
(ii) Indian Penal Code, 1860 – Section 304-B - Essential ingredients to attract application of -
Held: In order to attract application of section 304-B, I.P.C. the essential ingredients are as follows:
(i) The death of a woman should be caused by bums or bodily injury or otherwise than under a normal circumstance.
(ii) such a death should have occurred within seven years of her marriage.
(iii) she must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand for dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
(vi) Evidence Act, 1872 - Section 1138 - Dowry death - Presumption under Essentials to be proved.
(iii) Evidence Act, 1872 – Section 113-B – Dowry death- Presumption under – Essentials to be proved. -
Held: Presumption under section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on the proof of the following essentials:
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under section 304-B, I.P.C.)
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
Words & Phrases
"Held: The expression soon before would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question." (Para 6)
Result: Criminal Appeal allowed.
JUDGMENT
A Pasayat. J. - Appellant Keshab Chandra Panda (hereinafter referred to as the accused) calls in question legality of his conviction for an offence punishable under section 304- B of the Indian Penal Code, 1860 in short', I.P.C. and sentence of seven years imprisonment as awarded by learned Addl. Sessions Judge, Jaipur.
2. Accusation which led to trial of accused appellant are as follows:
On 15-1-1989, the accused and Pravatini @ Chema Kar 'hereinafter referred to as the deceased' entered into wedlock. Subsequently, some dissensions surfaced between them, which according to prosecution was on account of non-fulfillment of demands for dowry made at the time of marriage. The accused assaulted the deceased with an iron rod on 2-6-1989, which led to lodging of information at Kuakhia out post on 36-1989. A Station Diary Entry was made. An effort was made to bring about amity between the accused and deceased. After a long stay in the house of her parents, the deceased returned to the household of her husband, after a decision was taken by the well wishers of parties at a meeting on 28-1-1990, that they should iron out their differences and live together. On 5-3-1991, accused brought the deceased to the house of her parents and left her there, with a promise to take her back after few days. Ultimately deceased sent to the house of accused on 24-3-1991. On 263-1991 her relatives were informed about that she had expired. They suspected foul play and set into motion. Investigation was undertaken and on completion thereof, chargesheet was submitted and accused faced trial for commission of offence punishable under section 304-B, I.P.C.
3. Ten witnesses were examined to further the prosecution case. Karlik Ch. Kar (P.W. 1) is the brother of deceased while Keshab Ch. Kar (P.W. 4) is her father. Achutananda Acharya (P.W. 2) and Ghanashyam Mishra (P.W. 3) are neighbours of the deceased. Pleading innocence, accused took the stand that there was no demand of dowry at all, and death cannot be termed as dowry death. On consideration of evidence of the witnesses, particularly P.Ws. 1,2 and 4, learned Additional Sessions Judge found accused guilty, convicted him under section 304-B, I.P.C. and sentenced to undergo rigorous imprisonment for seven years.
4. Learned counsel for accused-appellant has urged that evidence on record falls short of the requirement to establish an offence punishable under section 304-B, I.P.C. Learned counsel for State on the other hand supported the judgment submitting that acts leading to dowry death are abominable acts and they are cruel to the core. According to him, learned trial Judge has made an elaborate analysis to find accused guilty and no interference is called for. It is alternatively pleaded that even if it is held that an offence under section 304-B is not made out, an offence under section 498-A I.P.C. is made.
5. Section 304-B, I.P.C. deals with dowry death which reads as follows:
"304-B. (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative other husband for, or in connection with any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation - For the purpose of this subsection "dowry" shall have same meaning as in Section 2 of the Dowry Prohibition Act, 1961.
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
The provisions has application when death of a woman is caused by any bums or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husb
