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IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. SAHOO, J.
Rajib Rout - Appellant
Versus
State of Orissa - Respondent
JCRLA NO. 29 OF 2006
Decided on : 09.3.2015
2. PENAL CODE, 1860 - Sees. 304-B - One of the essential ingredients of the Section which relates to ’dowry death’ is that it must be proved that death of woman was caused by burns or bodily injury or has occurred otherwise than under normal circumstance - Expression "normal circumstance" apparently means natural death.
If all the other ingredients of Sec. 304-B of the I.P.C. are fulfilled, any death (whether homicidal or suicidal or accidental) and whether caused by burns or by bodily injury or occurring otherwise than under normal circumstance shall as per the legislative mandate, be called a "dowry death". (Para - 6)
3. EVIDENCE ACT, 1872 - Sec. 113-B - Penal Code, 1860 - Sec.304-B - A conjoint reading of Sec. 113-B of Evidence Act and Sec.304-B IPC shows that the death must be first proved to be on account of burns or bodily injury or otherwise than under normal circumstances and then it is also to be shown’ by the prosecution that soon before the death the woman was subjected to cruelty or harassment or in connection with any demand of dowry - Detail stated.
The interval between the cruelty or harassment on the woman and her unnatural death should not be much and there should be proximate and live link between the effects of cruelty based on dowry demand and the unnatural the death of the deceased and dowry related harassment or cruelty inflicted on the woman, an accused cannot be convicted under section 304-B IPC with held aid of the presumption under section 113-B of Evidence Act. "Shall Presume" which occurs in Section113-B of Evidence Act is to be read in consonance with "Shall presume" which is defined in Section 4 of the Evidence Act that "whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved" so the Court has no option but to presume that the accused has caused dowry death unless the accused disproves it. It is a statutory compulsion on the Court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both. Similarly cruelty or harassments must be shown to have been committed by the accused within the meaning of clauses (a) or (b) of the Explanation to section 498-A IPC.
JUDGMENT :
S.K.SAHOO, J. The appellant faced trial in the Court of learned Addl. Sessions Judge, Jagatsinghpur in Sessions Trial No.325 of 2002 for offences punishable under sections 498-A, 304-B, 302 of Indian Penal Code and section 4 of Dowry Prohibition Act. The learned trial Court vide impugned judgment and order dated 7.1.2006 while acquitting the appellant under Section 302 IPC found him guilty under sections 498-A, 304(B) of Indian Penal Code and Section 4 of Dowry Prohibition Act and accordingly convicted him of such offences and sentenced him to undergo R.I. for one year for offence under Section 498(A) IPC, R.I. for ten years for offence under Section 304(B) IPC and to undergo R.I. for six months for offence under Section 4 of D.P. Act. The sentences were directed to run concurrently.
2. The prosecution case, in short, as per the first information report (Ext.2) lodged by Pahali Rout (P.W.9), father of Ahalaya Rout (hereafter ‘the deceased’) is that the marriage between the appellant and the deceased was solemnized one and half year prior to the date of occurrence in Sarala Temple in accordance with Hindu customs and rites. At the time of marriage, cash of Rs.6,000/-, gold ornaments and other articles were given towards fulfillment of the demand of dowry. Few days after marriage, the deceased was physically and mentally tortured in connection with demand of more dowries. The appellant got separated from his family members and lived separately with the deceased but continued to torture the deceased physically and mentally demanding more dowries. The deceased was not even allowed to go to her father’s place and on one occasion when the deceased visited to her father’s place, within three days of her stay, the appellant brought her back. The informant’s family members were not visiting the house of the appellant as he was always torturing the deceased. On 15.09.2011 the cousin brother of the appellant came to the house of the informant and gave message regarding the illness of the deceased and about her hospitalization. The informant rushed to Kujanga Hospital and found the deceased lying dead and noticed injuries on her person. The informant suspected that in connection with demand of more dowries, the appellant had killed the deceased.
Basing on such F.I.R. of P.W.9, the Sub-Inspector of Police Kartik Chandra Mallik (P.W.19) who was attached to Kujanga Police Station registered Kujanga P.S. Case No.149 of 2001 on 15.9.2001 under sections 498-A/304-B/302 IPC and section 4 of the D.P. Act in absence of the Officer-in-charge and himself took up investigation of the case. He visited the spot, examined the witnesses, conducted inquest over the dead body of the deceased and prepared inquest report Ext.3 and sent the dead body for post mortem examination. P.W.18 Dr. Kailash Chandra Sahoo who was the Medical Officer attached to District Headquarters Hospital, Jagatsinghpur conducted post mortem examination on police requisition and submitted his report Ext.5. The I.O. seized the dowry articles from the house of the appellant and prepared seizure list Ext.4/2. He released the dowry articles in the Zima of the informant (P.W.9). He arrested the appellant and forwarded him to court. After completion of investigation, he submitted charge sheet against the appellant.
3. The defence plea of the appellant is one of denial.
4. In order to prove its case, the prosecution examined 22 witnesses.
P.W.1, P.W.2 and P.W.3 who are the co-villagers of the appellant stated that they do not know anything about the case.
P.W.4 Rasananda Tarei, P.W.5 Jogi Majhi and P.W.6 Satyananda Dalei are the uncles of the deceased who stated about noticing injury on the person of the deceased in Kujanga Hospital.
P.W. 7 Narayan Panda and P.W.8 Sribash Parida proved their signatures in the zimanama Ext.1.
P.W.9 Pahali Rout is the informant in the case and he stated about the demand of dowry at the time of marriage, torture on the deceased by the appellant and
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