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498A Conviction set aside. Courts have to be careful to see whether the accusations are true or aimed at false implication

Orissa High Court

Babaji Charan Barik
State on 8 October, 1993

Equivalent citations: 1994 I OLR 66
Author: A Pasayat
Bench: A Pasayat, D Patnaik


A. Pasayat, J.

1. Was the unfulfilled dowry claim of the appellant Babaji Charan Barik (hereinafter referred to as the ‘accused’) cause of death of his wife Gitanjali (hereinafter referred to as the . ‘deceased’) ? The accused pleads innocence and terms the allegations made by the prosecution to be unfounded. He was held guilty for homicidal death of deceased.

2. Scenario as portrayed by the prosecution is as follows:

The deceased and the accused were married sometime in June, 1980, at a temple, and were blessed with two. On 12-6-1986 the deceased was found dead with burn injuries. The accused lodged information at Sector 3 Police Station stating that his wife had committed suicide. But Kaibalya Charan Barik (PW 12), the brother of the deceased lodged another information at the said Police Station alleging that his sister had sustained burn injuries on her person, had not committed suicide and her death was homicidal. During investigation it came to the light that the accused had wilfully assaulted and ill- treated the deceased for which she committed suicide. Charge sheet was thus placed for commission of offences punishable under Sections 498-A and 306 of the Indian Penal Code, 1860 (in short, ‘IPC‘). The accused was initially tried by the earned Judicial Magistrate, first class, Panposh. After recording of evidence the learned Magistrate was of the view that the offence was one of murder and therefore, took cognizance of an offence punishable Under Section 302, IPC and committed the case to the Court of Session for trial. The accused was charged for commission of offences punishable Under Section 498-A and 302, IPC, The accused pleaded innocence and stated that he had neither demanded dowry, nor ill-treated the deceased. According to him, the deceased committed suicide.

3. In order to further its case, prosecution examined twelve witnesses, Nanda Barik (PW 1), Gouri Barik (PW 10), and Kaibalya Charan Bank (PW 12) highlighted the prosecution case so far as the demand of dowry is concerned. ‘Additionally PW 12 claimed to have seen the dead body of the deceased tied with a cycle chain to a sanitary pipe inside a latrine in a chair-sitting position, an earthen pot was placed directly beneath her private pert and smoke coming out from that pot. Her thighs, buttocks and private part were burnt and a portion of her hair was also burnt, and there was a mark of injury on her neck. She had been virtually roasted with fire, and was already dead. The learned trial Judge was of the view that the evidence clearly established the charges against the accused. He referred to Section 113-A of the Indian Evidence Act, 1372 (in short, ‘Evidence Act‘) to conclude that it was the duty of the accused to prove that the death was not due to his cruelty. Referring to Section 113-8 of the Evidence Act it was observed that Court has to presume that the death was a dowry death. He found the accused guilty and sentenced him to imprisonment for life for the offence punishable Under Section 302, IPC, but no separate sentence was passed in respect of the offence punishable under Section 498-A.

4. Mr. R. N. Biswal, learned counsel for the accused strenuously urged that the foundation of the prosecution case is so shaky that no credence is to be. put on it ; evidence of PW 12 is incredible and so is evidence of PWs 1 and 10. So far as Section 438-A, IPC is concerned, the essential ingredients of Section 498-A are squarely absent.

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The learned counsel for State on the other hand supported the judgment of conviction and sentence.

5. We shall first deal with the evidence of PW 12 because his evidence is the pivot for the prosecution case. A written report was lodged by PW 12 on 13-8-1986. Therein there is no reference to the accused In Court PW 12 stated to have seen the deceased in a chaw sitting, position, and also to have seen a pot from which smoke was coming out. In the report there is no reference to the injuries claimed to have been noticed by PW 12. His further statement was that when he went to the house of the accused he found it closed, he jumped over the gate and went to the back side of the house where the. accused and his family ware raiding. On the advice of the neighbours, when he opened the tin door there was smell of burning mobile and there was also smoke inside the house. Ha called some neighbours. When they all gathered, the accused, his elder brother and some police personnel came. They entered inside the house and found the deceased tied with a cycle chain to a sanitary pipe inside the latrine in a chair sitting position and an earthen pot was there directly beneath her private part and smoke- was coming out from the pot. She was already dead. According to this witness, he went to the house of the accused in the afternoon of 13-6-1986. From the evidence of PW 9 we find that on 12-6-1986 at about 2 p.m. the accused lodged a written report relating to death of his wife which was registered as Sector U. D. Case No. 9 of 1986, while PW 12 lodged the report on 13-6-1986 at 4 pm. Inquest report (Ext, 2) was prepared on 12-6-1986 as is evident from the report itself end evidence of Binakar Ghadei (PW 6). Unfortunately the official who had investigated on the basis of the report lodged by the accused has not been examined. It his statement in Court that he learnt about the incident on 13-6-1986 is correct the recital in the written report (Ext. 3) that he learnt about the incident on 12-6-1986 cannot be true.

6. Further interesting is that PW 12 got Information about his sister’s injuries at about 2 p.m. on 12-6-1986 and lodged information at the police station after about twenty-four hours. No explanation whatsoever has been offered for the delayed action. Further the omission to state about the deceased being tied to a cycle chain or sitting in a chair like position or existence of an earthen pot below her private part from which smoke was coming is very vital keeping in view the fact that the first information report was lodged after twenty- four hours. The fact that PW 12 omitted to state the details before the investigating Officer on 13-6-1986 which he did in Court also shows that his evidence is tainted with falsehood. Though FIR is not intended to be an elaborate catalogue of the background events, the broad picture and broad features have to be indicated. It is sufficient if the broad picture is given, But omissions which tend to show that picture as originally given was changed during trial to project a different version are to be considered while testing the credibility of evidence of maker of the report.

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7. This is not the end of the matter. The learned trial Judge has referred to Section 113-A and Section 113-8 of the Evidence Act to come to the conclusion that the onus was on the accused to prove his innocence. Section 113 A of the Evidence Act deals with presumption as to abemant of suicide by a married woman. Sac. 113-B deals with presumption as to dowry death. The expression “dowry death” has been defined in Section 304-B, IPC. It reads as follows :

“304-B. Dowry death. (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death.

Explanation.-For the purpose of this sub-section, ‘dowry’ shall have same meaning as in Section 2 of the Dowry Prohibition Act, 1961.

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. This provision has application where soon before her death, the victim was subjected to cruelty or harassment. In order to attract application of Section 304-B, the essential ingredients are as follows :

(i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances ;

(ii) Such death should have occurred within seven years of her marriage ;

(iii) She must have been subject 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 for dowry.

A combined reading of Sec 113-B of the Evidence Act. and Section 304-B, IPC shows that there must be material to show that soon before her death the victim must have been subjected to cruelty or harassment. The expression ‘soon before’ is very relevant. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment, and only in that case the presumption operates. The evidence in that respect in the case at hand is squarely lacking. ‘Soon before’ is a relative term. It would depend upon the circumstances of each case and no fixed period can be indicated in that regard. The learned trial Judge appears to have committed faux pas by referring to Section 113-A of the Evidence Act in support of his conclusion. That provision has no application to this case, as it relates to abetment of suicide. Homicide and suicide are conceptually different. We are, therefore, of the view that prosecution has failed to bring home the accusations so far as they relate to offence punishable Under Section 302, IPC.

8. Coming to the question whether Section 498-A, IPC has application the learned counsel for State placed reliance on the evidence of P.Ws 1, 10 and 12 to submit that there is material to show that the victim was subjected to cruelty and harassment and it is relatable to the demand of dowry. Section 498-A, IPC and Section 113-A of the Evidence Act also include in their amplitude the past events of cruelty prior to the coming into force of these two sections. The period of seven years Under Section 113 of the Evidence Act is itself suggestive of the consideration of past period before the introduction of the provision. The word ‘cruelty’ is well defined and its import is well known. The meaning of word ‘harassment’ is also very well-known and there cannot be any doubt as to what it relates to and means.

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9. The first information report lodged by PW 12 is significant because it does not refer specifically to the accused as being the person making demand of dwory, and it refers to his elder brother, sister-in-law, and another member of the family named Rina. The . evidence of PW 10 is also to the effect that the talk of dowry was between the guardian of the accused and PWs 1 and 12. PW 1 also stated that the demand of dowry was made by ‘Gani, i. e., the accused’s elder brother. Therefore, the prosecution has not been able to bring home the charge under Section 498-A, IPC against the accused.

10. In conclusion, the conviction and consequentially sentence as awarded by the learned trial Judge are set aside. The accused be set at liberty forthwith unless he is required to be in custody. In connection with any other case.

The criminal appeal is allowed.

Before we part with the case, a word of caution is to be given. Courts are called upon to adjudicate the complex question whether “in-laws” have become “out-laws” and have directly or indirectly contributed to snuff out the life of a woman. Dowry deaths are results of their disgraceful acts. 8ut the Courts have to be careful in shifting the evidence to see whether the accusations are true or are aimed at false implication. In the present day complex world, it is extremely difficult to gauge the machinations of a mischievous mind. The Courts have to tread on very slippery grounds while dealing with such cases, because sometimes emotions overrun realities. The case at hand belongs to this category. Chapter XX-A of the Indian Penal Code (containing Section 498-A) was introduced by the Criminal Law (Amendment) Act 1983, (Act 46 of 1988). The section was introduced to combat the menace of dowry deaths. It reflects the anxiety of the law makers to extend protection to women, considered weaker spouses. Drudgery in marital life, indelible cracks in marital relationships sometimes led women to end their lives. Life was veritable hell for them, leaving them with no alternative than to take this extreme step. Short of physical cruelty, mental cruelty was perpetuated, being conscious that the latter type of cruelty was not punishable. The section was introduced to fill up the lacuna in law. The provisions relating to dowry death are laudable, being aimed at protecting women whom Manu raised to status of worship, and ordained that they be honoured and adorned with apparel and jewels by their male relatives if they desired abundant and continued prosperity. But, the Courts shall be failing to do their duties, if they act with overzealousness to punish an accused merely on unfounded allegations.

D.M. Patnaik, J.

I agree.

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