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Judgment
Dr. S.K. Panigrahi, J.
This appeal is directed against the judgment and order, dated 20.11.2018, passed by the 1st Additional Sessions Judge, Baripada, Mayurbhanj in S.T. Case No. 53 of 2014 (arising out of G.R. Case No.1481/2013 corresponding to Rasagobindpur P.S. Case No. 96 of 2013) convicting the Appellant for the offences punishable under Sections 302/201 of the IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.10,000/- i.d. to undergo further R.I. for six months for under Section 302 I.P.C. and further to undergo R.I. for 3 years and to pay fine of Rs.5,000/- only and i.d. to undergo R.I. for three months for under Section 201 of the I.P.C.
I. CASE OF THE PROSECUTION:
The case of the prosecution is that Ramani Mohanta (“the deceased”) married Jagdish Mohanta (“Accused No. 1”) as per custom and rites of their community in 2009. After six months of the marriage, Jagdish and his in-laws (“accused persons”) started to physically and mentally abuse her to get her to bring more valuable belongings as dowry. On the night of 16.09.2013, Jagdish and his family members killed Ramani and jettisoned her dead body in the pond of one Pradhan Babu.
Shyamsundar Mohanta, who happened to be the mediator of their pre-nuptial arrangement, heard the quarrel in the house of the accused persons. Next morning, Shyamsundar approached Jagdish and his family and asked them about the wellbeing and whereabouts of Ramani. However, Jagdish and his mother informed that Ramani had gone somewhere. Later, Shyamasundar apprised Umesh Mohanta, father of Ramani, of the situation. They proceeded to the village of Jagdish and found the dead body of his daughter floating in the aforementioned pond.
Thereafter, Umesh Mohanta (“the informant”) reported the matter to Rasagobindpur P.S. and tendered a written report. The complaint was registered by Amit Kumar Biswal, IIC Rasagobindpur, and the investigation began.
During the investigation, the police examined the complainant, other witnesses, visited the spot, and sent the dead body of the deceased for post mortem examination after holding inquest over the dead body. They also seized the wearing apparel of the deceased after post mortem examination. The apparel, nail clippings and sample of blood of the accused persons were also sent for chemical examination. On completion of investigation police submitted charge sheet against Jadgish Mohanta and his parents, namely, Banshidhar Mohanta and Smt. Sulochana Mohanta under Section 498A/304B/302/201/34 IPC read with Section 4 of the Dowry Prohibition Act.
The appellant and the other accused persons took the plea of complete denial and pleaded not guilty to the charges framed against them.
The prosecution examined twenty-one witnesses and led evidence with several documents and material objects. The Defence, on the other hand, did not examine any witness.
II. TRIAL COURT JUDGMENT
The Court noted that even though the prosecution claims that the nature of death suffered by the deceased, Ramani Mohanta, is homicidal; there are no ocular witnesses to the purported act and the case of the prosecution solely hinges on circumstantial evidence.
The trial Court began the analysis of the case by with the examination of the testimonials of the P.Ws.
Umesh Mohanta, (“Informant and P.W.11”) stated that the marriage of his deceased daughter was solemnized with the appellant Jagadish. At the time of marriage, the accused persons demanded many valuable articles in the pre-nuptial transaction. After six months of marriage, the accused persons started abusing and assaulting the deceased and demanded cash for the ordeal to stop. In 2011, the accused no. 1 and the deceased had come to his house and the accused still assaulted the deceased demanding cash from him. A meeting was convened in their village and a settlement deed was executed in writing in favour of accused No. 1. In 2013, he deposed that got information from Shyamsundar (P.W.5) that the deceased was missing from her in-laws house. On further enquiry, he disclosed that he had been to the village of the accused persons to sell bangles where he had an impromptu meeting with the accused persons.
Shyamsundar Mohanta (P.W.5) corroborated the deposition of P.W.11 and testified that the deceased had approached him and requested that he intimated her father about her perilous condition. He also deposed that he saw blood oozing out of the nose of the deceased to which the deceased revealed that the accused no. 1 had assaulted her. Next day, after his meeting with the accused persons, he came to this village along with the informant and others to look for the deceased when they found the dead body of the deceased; floating in the pond.
The version of P.W.11 is supported by P.W.6, P.W.7, P.W.8, P.W.9, P.W.10 and P.W.12.
Dr. Kishore Kumar Panda (P.W.20), the medical officer, conducted post mortem examination of the dead body of the deceased and found injuries on the body of the deceased and opined that the cause of death was due to asphyxia on the vital organs due to drowning. He also found a haematoma in the right-perital region of the deceased. He opined that the said injury could be caused by an assault on the head or by jumping in the pond. It was however clarified that the injury is not sufficient to cause death by itself.
The trial court took into consideration the depositions of P.W.5 and P.W.11 and affirmed that other prosecution witnesses have also corroborated that the accused no. 1 used to assault the deceased and demand cash for dowry for which a settlement deed was finally entered into. However, the court noticed that the said settlement deed did not mention that the accused used to assault the deceased for his demand of cash. Even though other P.Ws. have stated that a demand for excess dowry was made by the accused persons, they differed in their statement and the said agreement does not corroborate the demand of dowry made by the accused persons. Moreover, the trial court commented that when P.W.5 had met the deceased, even though he found blood oozing out of her nose, the deceased did not make it explicit whether the accused had assaulted her for his demand of cash or any other reason.
From the aforesaid facts, the trial court could not reach to a conclusion that the accused persons used to demand dowry from the deceased and assaulted her for that reason. Nonetheless, taking into account all the facts, the trial court concluded that the accused Jagadish used to assault the deceased at various instances.
Further, the trial court relied on the deposition of P.W.20 and shed light of the injuries on the body of the deceased even though the cause of death was due to asphyxia on the vital organs and due to drowning. All the facts narrated above, complete chain of circumstantial evidence and lead to a conclusion that the accused Jagdish assaulted the deceased and threw the dead body into the Pradhan pond, as the prosecution witnesses P.W.11, P.W.5 and other witnesses consistently stated about the incident which leads to a conclusion that the accused Jagadish has caused the death of the deceased.
On the conjoint reading of the evidence of the prosecution witnesses including the doctor and Investigating Officer, the trial court observed that there was a clear intention as well as the motive to cause death. The appellant has been unequivocally implicated with the charge death of the deceased. Accordingly, the accused has been convicted for the offence punishable under Section 302 IPC with a sentence described hereinbefore. However, the appellant has not been found guilty for the offences Under Section 498-A/304-B/34 of the I.P.C. and Under Section 4 of the Dowry Prohibition Act, 1961 and the accused persons namely Bansidhar Mohanta and Sulachana Mohanta are found not guilty for the offences.
III. APPELLANT’S SUBMISSIONS:
Learned counsel for the Appellant completely denied the charges pressed herein and decried false implication. It was submitted that the entire prosecution case is based on circumstantial evidence and the prosecution has miserably failed to prove the case beyond all reasonable doubt and to prove the chain of circumstances but, the trial court arbitrarily and illegally convicted the appellant under section 302 IPC.
The appellant was falsely charged under Section 302 of Indian Penal Code. The investigation was callous perfunctory and deliberately made to scapegoat the appellant when there is no direct evidence available on record indicating the death of the victim. The trial court ignored the material facts while delivering the judgment, more particularly when none of the witnesses had seen the appellant committing the alleged offence.
The learned Trial Court had acquitted the accused person including the present appellant from charges under Section 498A, 304B, 34 IPC read with under Section 4 of Dowry Prohibition Act. The learned Trial Judge came to a finding that it cannot be concluded that the accused persons were demanding further dowry from the deceased and for that the accused Jagdish the present appellant assaulted deceased. However, suddenly after this finding which is based on evidence on record, the learned Trial Court came to a finding that taking into account all the facts and circumstances, it can be said that the accused Jagdish used to assault the deceased on various matters for which a settlement was made. This finding of the learned Trial Court is bereft of any evidence on record.
It was argued that the trial court failed to appreciate the fact that no one has stated anything about the contents of the said settlement deed. Therefore, nothing can be inferred from the said deed and the circumstances leading up to the signing of an agreement.
It was also submitted that the Trial Court ignored the material evidence on record and came to a perverse finding based on which the appellant has been convicted. Tusarkant Mohanta (P.W.3) in his cross-examination has stated that the deceased was residing happily in her in-laws’ house. Similarly, Bisweswar Mohanta (P.W.4) in his cross-examination stated that the deceased, since her marriage, resided happily in her in-laws house with the accused persons. This kind of contradiction in the prosecution evidence renders the chain of circumstantial evidence and the subsequent finding of the learned Trial Judge completely obsolete and absurd.
It was submitted that the acquittal of the appellant of charges under Section 498A and 304B of Indian Penal Code and with the aforementioned contradictory testimonies on record are symptomatic of the fact that the conviction of the appellant under Section 302 of the Indian Penal Code is absolutely illegal and is not sustainable in the eyes of law. The conclusion that the appellant killed the deceased by assaulting her and throwing her body into the Pradhan pond is absolutely perverse and contrary to the materials available on record including the medical report.
The case of the prosecution is heavily dependent on the deposition of P.W.5. However, even in his deposition, he has not in any manner implicated the appellant in committing the offence under which he was convicted. Neither in his examination-in-chief nor during his cross-examination has P.W.5 stated that the deceased was assaulted by the appellant in any manner, she disclosed the reasons for assault on her by the appellant. Further, there is no direct evidence to the effect that the dead-body of the deceased was thrown into the pond by the appellant and other accused persons. In other words, there is no material evidence regarding the assault on the deceased by the appellant. Therefore, the conviction of the appellant under Section 302 of Indian Penal Code is completely unwarranted in law. The trial judge has gravely erred in law and facts in convicting accused-appellant under Section 302 IPC in the absence of essential ingredients constituting the above offence.
The learned counsel also relied on the findings of the medical report to argue that the post mortem conducted on the body of the deceased indicate that it did not have any external injury and ligature mark or any fracture. Therefore, the theory of assault as alleged by the prosecution is completely ruled out. Moreover, the medical officer has stated that the haematoma found on the right fronto-perital region could be caused by an assault or by jumping into the pond. It was explicitly clarified that the injury is not likely to cause death of a person. In view of such clinching medical evidence, appellant could not have been prosecuted under Section 302 of Indian Penal Code and the judgment which is impugned in this appeal is otherwise bad, illegal and against both oral and medical evidence on record.
It was submitted that the prosecution has not been able to prove by any material evidence that the deceased was harassed or tortured soon before the incident in case of any demand of dowry. There are many contradictions and improvements in the statement of other P.Ws. with respect to this.
It was also argued that the other accused persons have been exonerated on the basis of same set of evidence which has been relied upon against the accused-appellant, therefore, conviction and sentence recorded against accused is also deserved to be set aside.
IV. RESPONDENT’S SUBMISSIONS:
Learned counsel for the respondent/ State supported the case of the prosecution in toto, while, contending that based on the situs and nature of injuries, the Court can draw an inference that the appellant had the intention to kill his wife, Ramani.
It was submitted that the prosecution has proved by oral as well as circumstantial evidence the charges against the accused persons on the basis of which the appellant has been convicted but then as to how on the basis of same material the other accused persons have been acquitted. This sort of quandary has not been addressed by the trial court properly.
The prosecution has fully proved its case on the strength of the evidence of Shyamsundar Mohanta (P.W.5), Umesh Mohanta (P.W.11) and the corroboration from the depositions of P.W.6, P.W.7, P.W.8, P.W.9, P.W.10, and P.W.12.
It was submitted that the Trial Court has assigned no reasons for acquitting other accused persons. The Trial Court has misread the evidence.
V. COURT’S ANALYSIS AND REASONING:
Keeping in view the submissions made, we have carefully read the judgment passed by the Trial Court. We have also bestowed our due attention to the evidence on record, both oral and documentary.
We’ll take note of the charges severally and scrutinize the judgment of the trial court on the backdrop of rival contentions of the counsels.
It is an undying fact that the deceased has died an unnatural death with suspicious circumstances. But the fact of the matter is that the prosecution to show the element of director in direct evidence emanating from the action of the accused. In order to attract 304B of the I.P.C., the Court is required to examine those ingredients in a systematic manner. Several judgments of the Apex Court have succinctly dealt with such issues.
In Shanti v. State of Haryana AIR 1991 SC 1226, the Supreme Court had an occasion to explain the ingredients of Section 304B, IPC. Justice Jayachandra Reddy said 'A careful analysis of Section 304B, IPC shows that this section has the following essentials :-
a) That death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances.
b) Such death should have occurred within seven years of her marriage.
c) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
d) Such cruelty or harassment should be for or in connection with demand for dowry.
Section 304B, IPC requires that the death of the woman should be unnatural. Shanti (supra), the Supreme Court has clearly held that Section 304B, IPC raises a presumption of culpability against the husband or relative hitherto unknown to our jurisprudence. The question whether unnatural death of a woman was homicidal or suicidal is irrelevant. The prosecution must prove with some positive evidence that there must be material to show that soon before death; the victim was subjected to cruelty or harassment.
In the cases of dowry death or suicide emanating from such circumstances, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence that could be direct or indirect. In this respect, conduct of the husband and other relatives also plays an important role in coming to the conclusion of the guilt.
It must also be noted that the motive for a murder may or may not be. But in dowry deaths, it is inherent. And hence, what is required of the Court to examine is as to who translated it into action as motive for it is not individual, but of family.
It may be stated here that where death of a woman is unnatural; caused by other than in the normal circumstances within 7 years of the marriage and the evidence reveals that she was subjected to cruelty or harassment by her husband or any of his relatives in connection with any dowry, such death is described as dowry death under Section 304B IPC. By Section 113B of the Evidence Act, the Court has to raise a presumption of dowry death if the same has taken place within 7 years of marriage and there is evidence on the fact of woman having been subjected to cruelty and/or harassment.
The point that the death of the deceased took place within 7 years of the marriage is not in dispute. Therefore, the first ingredient of Section 304B has been proved by the prosecution.
This fact has also been proved by the prosecution that the deceased died an unnatural death in suspicious circumstances. If that is so, another essential ingredient of Section 304B of the IPC has been proved.
Now, we shall examine the important last points regarding cruelty and harassment emanating from demand for dowry.
It is evident from the undiscredited testimony of P.W.11 that the deceased was indeed getting frequently assaulted and abused by the appellant for the demand of dowry to an extent that a settlement deed was signed to ameliorate the situation. This fact has been duly corroborated by the depositions of other P.Ws. The defence has relied on ambiguities in the depositions of the P.Ws to prove that the marriage of the couple in question was happy and peaceful. However, we realize that when a large number of witnesses depose during a trial, there are bound to be discrepancies which cannot be a justification for giving benefit of doubt to the accused. While some P.Ws. were close family members and friends of the impugned family, some were acquaintances and might not have thorough insight into the purported state of relations between the appellant and the accused. Ergo, all the ingredients of Section 304B IPC are duly satisfied.
The principles which govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the Trial Court have been set out in innumerable cases by the Supreme Court. In the case of Ajit Sawant Majagavi v. State of Karnataka, AIR 1997 SC 3255 the Supreme Court laid the following principles :
“(i) In an appeal against an order of acquittal, the High Court possesses all the powers and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(ii) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by Trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
(iii) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds not subscribed to the view expressed by the Trial Court that the accused is entitled to acquittal.
(iv) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the Trial Court.
(v) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(vi) The High Court has also to keep in mind that the Trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court, especially in the witness box.
(vii) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such that a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.”
In respectful consideration of the above principles, we do not agree with the findings which have been recorded by the trial Judge so far as it relates to the accused Banshidhar Mohanta and Sulochana Mohanta for the offence under Sections 304B and 498A IPC are concerned. We are reversing their acquittal for the trial Judge came to the conclusion of guilt against the appellant-accused and on the very same set of evidence disbelieved the same evidence in relation to the father and mother of the accused who were also residing in the same house and have been an active/passive participant in the continuous harassment and demand of dowry soon before the death of the deceased as would appear from the statement of P.W.11.
We are also of the opinion that the evidence led by the prosecution is not sufficient to hold accused persons liable for offence under Section 302 of the IPC. Such conclusion of the trial court was absurd at best. There are no eye witnesses to the alleged act. There is no mention of the alleged act in the depositions of the prosecution witnesses. Also, the medical report is inconclusive. Resultantly, there was no chain of circumstances which led to the conviction of the appellant against Section 302 of the IPC.
However, the evidence adduced by the prosecution during the course of trial for offences under Sections 304B and 498A of the IPC is reliable and trustworthy against the appellant Jagadish Mohanta.
As stated hereinabove, in dowry death and suicide cases, the circumstantial evidence plays an important role and an inference can be drawn on the basis of such evidence that can be direct or indirect. In this respect, the conduct of accused persons becomes relevant. The accused persons took the plea of ignorance, which they miserably failed to prove. The circumstances where the accused did not inform P.W.5 about the whereabouts of the deceased and the later discovery of dead body in suspicious circumstances gives a definite impression of foul play against the appellant.
As against the appellant, his conviction under Section 302 of the IPC is however liable to be set aside due to dearth of reliable evidence to that effect. The death of the deceased is indeed suspicious; however, it does not automatically inculpate the appellant for its committal. But the appellant must be incriminated against his acts of abuse and assault towards the deceased for demand of dowry under Sections 304-B and 498-A of the I.P.C.
VI. CONCLUSION:
There is no reason to believe that the appellant has been falsely implicated in this case. No such suggestion was made by the witnesses or the investigating officer. All the circumstances relied on by the prosecution have been proved and they form a chain which leads to the only conclusion that the offence must have been committed by the appellant persons.
The result is that the appeal is without merits and the same is liable to be dismissed. We do so, confirming the conviction and sentence passed by the court below.
The CRLA is, accordingly, dismissed.
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