Back
2016 Supreme(Ori) 89
IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. SAHOO, J.
Prakash Naik - Appellant
Versus
State of Orissa - Respondent
JCRLA No. 98 of 2006
Decided On : 16-03-2016
For the Appellant : Mr. Arunendra Mohanty
For the Respondent: Mr. Dillip Misra
Headnote:1. PENAL CODE, 1860 - Sec.304-B - Evidence Act - Sec. 113-B - In order to attract the ingredients of offence u/s. 304-B the prosecution is required to prove the aspects stated - Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances".
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances;
(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 of dowry;
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
It becomes obligatory on the Court to raise a presumption as to ’dowry death’ under Section 113-B of the Indian Evidence Act on proof of the following essentials:-
(1) The question before the Court must be whether the accused has committed the ’dowry death’ of the woman;
(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.
2. PENAL CODE, 1860 - Sec. 498-A - Cruelty to a woman - Cruelty can either be mental or physical -Unless there are materials that the accused deliberately caused such mental or physical agony to the woman that there is chance of losing mental equilibrium which is likely to drive her to commit suicide or to cause grave injury or danger to her life, limb or health, the ’cruelty’ aspect will not be satisfied - Further stated.
It also covers any kind of harassment to the woman to coerce her or any person related to her to meet any unlawful demand. The Court has to weigh the gravity or seriousness of the act of the accused and its effect on the woman. No straight jacket formula can be there to decide what would be ’cruelty’. The concept of cruelty would depend upon the facts and circumstances of each case and it would vary from individual to individual, the social and economic status of the parties, their temperament, the society in which the parties are living, the social background, the environment and education etc. Sometimes a single incident in the marital life may develop a feeling in the woman a sense of complete frustration that being alive or dead is equally meaningless to her. However in some cases even daily petty domestic quarrels between the husband and wife will not attract the term ’cruelty’.
JUDGMENT :
S.K. Sahoo, J.
The appellant Prakash Naik along with his parents Deba Naik and Lalita Naik and younger brother Babula Naik faced trial in the Court of Additional Sessions Judge, Bhanjanagar in Sessions Case No.46 of 2003 for offences punishable under sections 498-A, 304-B, 302/34 and 406 of the Indian Penal Code and section 4 of the Dowry Prohibition Act, 1961.
The learned Trial Court vide impugned judgment and order dated 20.09.2006 acquitted the co-accused persons of all the charges so also the appellant of the charge under sections 302/34 and 406 of the Indian Penal Code but found him guilty under sections 498-A, 304-B of the Indian Penal Code and section 4 of the Dowry Prohibition Act. The appellant was sentenced to undergo rigorous imprisonment for ten years for the offence under section 304-B of the Indian Penal Code and rigorous imprisonment for three years and to pay a fine of Rs.2000/-, in default, to undergo imprisonment for two months under section 498-A of the Indian Penal Code and both the sentences were directed to run consecutively. No separate sentence was awarded for the offence under section 4 of the Dowry Prohibition Act.
2. The prosecution case as per the First Information Report lodged by Bipra Naik (P.W.2) before the Inspector in-charge, Bhanjanagar Police Station on 07.05.2003 is that his daughter Sunitarani Naik (hereafter ‘the deceased’) had married the appellant on 06.03.2003 and after marriage the bride and bridegroom lived happily and peacefully for about a month but thereafter the appellant being incited by his family members started demanding Rs.5000/-and a cycle. The deceased conveyed the demand of the appellant to the informant who in turn gave assurance to fulfill such demand within two to four months. The appellant started torturing the deceased physically and mentally. Even the mother-in-law, father-in-law, brother-in-law and sister-in-law of the deceased were also assaulting her and insisting for fulfillment of cash and cycle demand and threatening the deceased with dire consequences in the event of non-fulfillment of such demand. Though the deceased communicated about her suffering to the informant but the latter did not give much importance on it. It is further stated in the FIR that on 5.5.2003 night, the appellant and his family members assaulted the deceased, poured kerosene on her and set her on fire in the backyard of their house. Getting such message, the informant rushed to Bhanjanagar Hospital and found the charred body of the deceased. He suspected that the accused persons had killed the deceased. Since he lost his mental balance, there was delay in lodging the FIR.
Prior to the lodging of F.I.R. by P.W.2, on receipt of a written report on 06.05.2003 from Dr. Alekh Chandra Sahoo (P.W.6), Medical Officer, S.D. Hospital, Bhanjanagar regarding the death of the deceased on account of massive burn injuries, P.W.16 Devi Prasad Chakravaraty, Inspector in-charge, Bhajanagar Police station registered Bhanjanagar P.S. U.D. Case No.11 of 2003 and took up inquiry. During course of inquiry, he visited S.D. Hospital, Bhanjanagar, examined P.W.6 and other witnesses, held inquest over the dead body of the deceased on 6.5.2003 at about 8.00 a.m. in presence of the Executive Magistrate and prepared inquest report Ext.1. He sent the dead body for post mortem examination to S.D. Hospital, Bhanjanagar and seized some burnt ashes and a burnt plastic jerricane and a piece of burnt cotton saree from the spot in village Jogimari under seizure list Ext.10. He also seized the command certificate, some broken bangles and a saree of the deceased under seizure list Ext.8.
On 07.05.2003 after receipt of the written report from P.W.2, P.W.16 drew up formal F.I.R. and accordingly Bhanjanagar P.S. Case No.65 dated 07.05.2003 was registered under sections 498-A, 304-B, 302/34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act against the petitioner and his family members. The I.O. examined the
