State Of Orissa vs Kalandi Nayak And Others

The present appeal by the Government is directed against the judgment dated 30th November, 2009 passed by the learned Additional Sessions Judge, (FTC-II), Bhadrak in S.T. Case No. 18/27 of 2009 acquitting the Respondents of the offences under Sections 498-A/304-B read with Section 34 of IPC and Section 4 of the D.P. Act. At the outset, it requires to be noticed that during the pendency of the present appeal, Respondent No. 1 who have the father-in-law of the deceased expired and, therefore, the appeal as far as he is concerned, has already abated.

The charge against the accused is that he subjected to the deceased Mami @ Manasi, who had married the accused No.2/Appellant No. 2 Dhirendra Nayak on 13th March, 2007 to cruelty throttling before her death due to poisoning on 31st May, 2007.

In order to bring home the charge against the accused, the prosecution examined as many as 14 witnesses whereas one Bijay Kumar Sahu(D.W.1) was examined on behalf of the defence. One common feature of all the D.Ws. was the improvements made by them while deposing in the Court. When each of the P.Ws was confronted with the previous statement made by them to Police during investigation under Section 161 Cr.P.C., it transpired that in those statements, no allegation of torture or cruelty and that too, prior to the occurrence. Consequently, the trial Court found that their deposition on the crucial aspect of the deceased being subject to cruelty in torture prior to her death was not believable at all. The following observations in the trial Court in the impugned judgment are relevant in this regard:

“13. The allegation against the accused persons with regard to cruelty upon the deceased by them is omnibus in nature. None of these witnesses have given any specific instances of cruelty meted out to the deceased by the accused persons. As per these witnesses the genesis of the occurrence of cruelty is the steel almirah and the fridge which they had not given at the time of marriage and had assured to give the same later on. But in this regard there is inter-se contradiction in the evidence of these witnesses. Out of the witnesses, P.W. 7 and P.W. 8 the aunt and one of the brother of the deceased have not stated about any demand of fridge in their evidence.

During cross-examination all these witnesses were confronted to their earlier 161 Cr.P.C. statement and their statements were also confronted to the Investigating Officers and it has been brought out from the Investigating Officers that none of them have stated before the Investigating Officers that prior to 15 days of her death the deceased had come to her parental house and had told before them about the torture on her by the accused persons and prior to 7 to 8 days of her death she had telephoned P.W.7 Kamalini Biswal about the torture. The omission to state before the Investigating Officers about this fact by these witnesses seriously affects the credibility.”

To the same effect, with the observation of Para 17 of the trial Court judgment, which reads as under:

“17. The other witnesses examined on behalf of the prosecution have also supported the version of P.W.1, P.W.3, P.W.7, P.W.8 and P.W.10 that the deceased had visited her parental house prior to 15 days of her death and told before the family members about the torture on her. They have also supported the version with regard to the telephonic call of the deceased to her aunt, P.W.7 Kamalini Biswal wherein she told about the torture upon her. But during cross-examination it has been brought out from the Investigating Officers that the witnesses have omitted to state this fact during their examination by them earlier. Thus, the omission to state such an important fact before the Investigating Officer affects their credibility seriously.”

Parbati Biswal (P.W.3) was the mother of the deceased, who in her examination chief spoke about the deceased being subject to cruelty in torture prior to her death, in her cross-examination, admitted that just two to three days prior to the death of the deceased, the informant was in fact helping in his prawn culture and was also sent tea and tiffin to him. The trial Court found the evidence of the deceased being subject to cruelty from the date of her marriage till her death to be unreliable and unconvincing.

As far as medical evidence is concerned, it is seen that while death due to poisoning was able to be confirmed by Dr. Sangita Bal(P.W.12), there was no evidence of any external injury or poison being forcibly injected into the deceased. Therefore, the crucial link in the evidence of the prosecution with the conduct of the accused was missing. The trial Court has of the impugned judgment correctly observed that the versions of the P.Ws. were self-contrary and inconsistent with each other. All of them had “omitted to state important facts with regard to the cruelty before the Investigating Officer during their examination.”

Having carefully examined the entire evidence with the help of the counsel for the parties, the Court is satisfied that the trial Court has not committed any error in its analysis of the evidence and the conclusions drawn.

No grounds have been made out for interference with the impugned judgment of the trial Court. The appeal is accordingly dismissed. The bail bonds furnished by the Respondents are discharged.

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