Bhagaban Pradhan vs State of Orissa

P.K. Tripathy, J.—Heard.

Appellant challenges the order of conviction under Sections 302, 304-B and 498-A of IPC and sentence of imprisonment for life imposed on him by the Learned 1st Additional Sessions Judge, Berhampur in S.C. No. 34 of 1996 (S.C. No. 234 of 1996 G.D.C.).

Prosecution case, in short, is that appellant is the husband of the deceased, Gita, who, at the age of 21 years, Le., about 4 years after her marriage, died on 13.1.1996. According to the post mortem report Ext. 12 and the evidence of the doctor P.W. 12 there was no mark of violence, i.e., external injuries on the body of the deceased, but she died due to Asphyxia caused by throttling and not by infliction of any injury with the help of M.0.1, Phunkanala (blowing pipe). According to P.W. 12, the deceased suffered a homicidal death. The parents of the deceased got the message of death of the deceased from P.W. 4 and arrived at the house of the accused. On seeing them accused admitted to have committed the crime and prayed to excuse him. He did the same in presence of other persons also. When the parents of the deceased and other persons were still present at the spot, accused escaped but was arrested later on. In course of interrogation, he gave discovery of M.O. 1, with was seized according to the provision u/s 27 of the Evidence Act.

There is no eye witness to the occurrence and the prosecution case is totally based on circumstantial evidence like the husband and wife living together till the time of the homicidal death of the deceased, extra-judicial confession made by the accused and leading to the discovery of the weapons of offence M.O. 1.

The Trial Court on analysis of evidence found the evidence of P.W. 1 to be trustworthy, who deposed that the deceased was subjected to ill-treatment, cruelty and suffered dowry death because of non-fulfilment of further demand of Rs. 5,000/-. The deceased suffered homicidal death while in custody of the appellant. Because of such factum as well as the extra-judicial confession the Trial Court held that the accused was the author of the crime. After recording such finding, the Trial Court convicted the appellant for the offence under Sections 302, 304-B and 498-A of the IPC.

At the outset, it may be mentioned that in course of submissions made by the Learned Counsel for the appellant, he does not dispute the factual finding, recorded by the Trial Court based on the oral evidence coupled with Ext. 12 that the deceased suffered homicidal death due to Asphyxia. Therefore, that finding of the Trial Court is nor re-examined and is accepted as such.

Learned Counsel for the appellant argues that there are contradictions in the statement of P.W. 1 before the Trial Court and his statement made in the FIR. On a comparison of both the pieces of evidence, we do not note any contradiction, which would make the version of P.W. 1 unacceptable. Under such circumstances, the argument is found unmeritorious.

Learned Counsel for the appellant, further, argues that there is no eye-witness to the occurrence and the chain of circumstances are not complete so as to point at the guilt of the accused. In the above context, we find that the accused has not challenged the evidence of P.Ws. 1, 2, 3 and 5 that there was extra judicial confession made by him regarding committing the death of the deceased, (in the process of cross-examination of the aforesaid witnesses). He has not challenged the evidence of P.W. 2 that he made extra-judicial confession by admitting that he committed death of his wife. Therefore, the aforesaid confession being unchallenged is sufficient enough to bring home the charge against the accused in respect of demand of dowry and dowry death of the deceased within a period of 4 years from the date of her marriage.

Learned Counsel for the appellant further argues that the offence under Sections 302 and 304-B of IPC are alternative to each other and cannot sail together. Learned Government Advocate relying on the aforesaid submission argues that regard being had to the facts and circumstances available on record, appellant should be convicted u/s 302, IPC. On the other hand, Learned Counsel for the appellant states that if the appellant is not granted benefit of doubt, then regard being had to the point of contention of the prosecution that death of the deceased was due to non-fulfilment of dowry, at best it is covered by Section 304-B of IPC and not 302 of IPC.

On due consideration of the aforesaid argument, we find that the consistent case of the prosecution is that the deceased was done to death for the alleged non-fulfilment of dowry demand of Rs. 5,000/-. Therefore, the case is squarely covered u/s 304-B of IPC once accused is found guilty for the offence of committing the death of the deceased and he need not be convicted u/s 302 of IPC.

For the reasons indicated above, while maintaining the order of conviction of the accused for the offence u/s 304-B of IPC, we set aside the order of conviction u/s 302 of IPC.

So far as the offence u/s 498-A, IPC is concerned, Learned Counsel for the appellant does not argue anything challenging to the findings and order of conviction recorded by the Trial Court save and except arguing that keeping in view the relevant facts and circumstances no separate sentence be imposed for the said offence. Learned Addl. Government Advocate has no objection to that submission.

Regard being had to the aforesaid contention of the parties, we maintain the order of conviction u/s 498-A, IPC.

On the aforesaid analysis of the arguments advahced by the parties and the decision arrived at by us, the ultimate result is, in maintaining the order of conviction u/s 304-B and 498-A, IPC but acquitting the accused of the offence u/s 302 of IPC.

Section 304-B provides that:

whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven yeas but which may extended to imprisonment for life.

Therefore, this punishment, which has been provided, is unlike punishment for commission of offence u/s 302 of IPC. The punishment provided for an offence u/s 304-B is of lesser degree than that provided u/s 302 of IPC. It is seen that the appellant has already spent 10 years and 7 months inside the jail during pendency of the trial as well as this appeal. Therefore, the period of detention is inflicted as a penalty and he is directed to be set at liberty forthwith if his detention in jail custody is not required in connection with any other case.

A.K. Samantaray, J.

I agree.