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IN THE HIGH COURT OF ORISSA AT CUTTACK
S. MURALIDHAR, BISWAJIT MOHANTY, JJ.
Sarathi Mahananda – Appellant
Versus
State of Odisha – Respondent
CRLA No. 445 of 2014
Decided On : 27-10-2021
Criminal Procedure Code, 1973 - Section 313 and 374(2) - Dowry Prohibition Act - Section 4 - Evidence Act - Section 106 - Indian penal Code, 1860 - Sections 498A, 304B, 302 and 34 - Demand of dowry - Punishment for murder - Power to examine the accused - Appeal against conviction - death of the deceased took place in the dwelling house of the accused - Cruelty or harassment by the accused persons soon before her death.
Finding of the Court:
Evidence of PW-11 regarding the death being homicidal went unchallenged. Although the prosecution successfully proved that the death of the deceased had occurred in otherwise than normal circumstances and was homicidal in nature and within seven years of marriage yet the basic ingredients of the offence under Section 498A and 304B/34 IPC were held by the trial Court to be not fulfilled. Accordingly, it was held that the prosecution had failed to prove the charge under the aforementioned provisions against the accused beyond all reasonable doubt - Although there were minor discrepancies in the evidence of the PWs. 15, 16, 17 and 19 and they were related to each other, their evidence could not be completely ignored. The credibility of their evidence regarding the death of the deceased inside the house of the accused persons could not be shaken - Appellant was alone present in the house where the death took place; therefore, the cause of the death of the deceased was within the special knowledge of the Appellant - evidence regarding recovery of the weapon of offence was also proved.
Result: Appeal dismissed.
JUDGMENT :
S. MURALIDHAR, J.
1. This appeal is directed against the judgment and order dated 12th November, 2013 passed by the learned Additional Sessions Judge, Titilagarh (hereinafter ‘the trial Court’) in Sessions Case No. 15 of 2011 convicting the Appellant for the offence under Sections 302 IPC and sentencing him to rigorous imprisonment (RI) for life and to pay a fine of Rs. 25,000/- and in default of payment of fine, to further undergo RI for one year.
2. At the outset, it must be noted that the present Appellant along with his parents (Accused Nos. 2 and 3) faced trial having been charged for the offence under Sections 498A, 304B, 302 and 34 IPC. By the same impugned judgment of the trial Court Accused Nos. 2 and 3 were acquitted from the charges. The present Appellant was acquitted of the offence under Section 498A, 304B/34, IPC but was convicted for the offence under Section 302 IPC.
3. The case of the prosecution was that the Appellant was married to the deceased Harabati Besra in 2005 and soon thereafter the family members of the Appellant commenced ill-treating and torturing the deceased. The deceased then came to her father's house and remained there for a period of one year. Thereafter, the mother of the deceased left her in the house of the accused persons requesting them not to ill-treat her in future.
4. Six-seven months later, on 22nd July 2010, one Padu Mahananda informed Lakhpati Besra, father of the deceased over phone that his daughter was in a serious condition. On getting the said information, Lakhpati Besra along with his other family members went to the house of the accused persons and found that his daughter was lying dead. The broken bangles and ‘Mangal Sutra’ of the deceased were lying near her dead-body. Accordingly, Lakhpati Besra lodged an F.I.R. at Sindhekala Police Station where P.S. Case No. 84 was registered for the offences under Section 498A, 302/34 IPC.
5. After completion of the investigation, a charge-sheet was submitted against three accused persons for the offences under Sections 498A, 304B, 302, 406 and 34 IPC read with Section 4 of Dowry Prohibition Act. The accused persons faced trial having been charged under Sections 498A, 304B, 302 and 34 IPC. 21 witnesses were examined by the prosecution whereas the defence adduced no evidence. Several witnesses turned hostile including PWs. 1 and 2 who were supposed to have called the Police to the house of the accused and are supposed to have found the dead-body of the deceased lying in the verandah of their house. Likewise, PWs. 3, 4, 5, 6, 10 and 18 were declared hostile and were cross-examined by the prosecution.
6. Sri. Satyanarayan Behera (PW-21), the then Officer-in-Charge of Sindhekala PS seized two plastic ropes after visiting the spot and prepared an inquest report. On 24th July, 2010 he arrested the present Appellant. According to the prosecution, the Appellant made a disclosure in the presence of the witnesses that the plastic ropes and kendu stick used in the killing had been kept concealed in his house and he offered to get them recovered. The aforementioned relevant portion of the disclosure statement of the Appellant was marked as Ext.2/2. The Appellant led the I.O. and the witnesses to the place of concealment of the aforementioned objects which were then seized under Seizure List Ext.3/2. The wearing apparels of the deceased were seized.
7. On 25th July, 2010 PW-21 received the post-mortem examination report and on 7th November, 2010 he sent the seized articles to the Regional Forensic Science Laboratory (RFSL), Sambalpur. Thereafter the charge sheet was submitted in the trial Court.
8. The medical officer (PW-11) who conducted the post-mortem on 23rd July, 2010 found inter alia one ligature mark in the neck, which was transverse continuous low down in the neck, below the thyroid, extending from left side of the neck into right side of the neck. There were injuries found on larynx and trachea. Fracture of hyoid bone was present. The
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