STATE OF ORISSA Vs. GIRIBARA ADA

JUDGEMENT

(1.) THIS Government Appeal is directed against the judgment and order of the learned Additional Sessions Judge, Sambalpur passed in S.T. Case No.47/23 of 1996. Respondents 1 to 6 were charged for commission of offence under Sections 498 -A, 304 -B, 302, 201, 34 of the Indian Penal Code (in short 'IPC) and under Section 4 of the Dowry Prohibition Act whereas respondent No.7 was charged for commission of offence under Sections 217, 218 and 201 of IPC. The trial Court acquitted respondents 1 to 6 of the charges whereas respondent No.7 was found guilty for commission of offence under Sections 217 and 201 of IPC but he was released under Section 4(1) of the Probation of Offenders Act on execution of a bond of Rs.5000/ - without surety.

(2.) CASE of the prosecution is that deceased Bijaya Ada, daughter of Gouranga Pradhan -P.W.16 had married respondent No.1 in the month of March, 1993 and after marriage, both of them stayed in the house of the accused persons. The deceased was found missing in the night of 16.10.1994. After search, she was found lying alive with injuries on the train line near Bagdihi Railway Level Crossing on 17.10.1994 morning. Receiving information from the Gate -man of Bagdihi Level Crossing, the Assistant Station master, Bagdihi Railway Station, entered the fact into the Station Diary at 6.30 A.M. As Geetanjali Train was to pass on the said line, on demand of the public, the Assistant Station Master came to the spot with stretcher to rescue the deceased. When the deceased was put on the stretcher for being taken to the hospital, she expired. Thereafter, the body of the deceased was kept on the side of the train line and another Station Diary Entry was made by the Assistant Stanton Master at 8.10 A.M. The O.I.C., G.R.P.S., Jharsuguda registered a U.D. Case at 12.30 P.M. on the basis of the Station Diary Entry made by the Assistant Station Master, Bagdihi Railway Station and visited the spot to inquire and after completion of inquiry, he handed over the dead body to respondents 1 to 6 without getting the postmortem examination done. The dead body was cremated in the night of 17.10.1994. On 17.10.1994 evening, the elder brother of deceased -Bijaya Ada came to the house of the accused persons, learnt about the incident and on 18.10.1994, submitted a written report before the O.I.C., Jharsuguda G.R.P.S. alleging that the deceased was being assaulted by respondents 1 to 6 demanding more gold ornaments and also on the allegation that in the night of 16.10.1994, the deceased was assaulted in the house of the respondents 1 to 6 and that he suspected respondents 1 to 6 have committed the murder of deceased on account of demand of dowry. After receipt of information, a case was registered, investigation was conducted and charge -sheet was submitted against respondents 1 to 6 for commission of the aforesaid offences and so far as respondent No.7 is concerned, he was charge -sheeted for commission of offence under Sections 217, 218 and 201 of IPC. The plea of defence is complete denial of the allegation. The further plea of the defence was that the deceased was suffering from mental disorder and was in the habit of leaving the house without informing any one. In the night of 16.10.1994, she returned home from the house of P.W.1 after attending a feast and without knowledge of any one she left the house and committed suicide on the train line near Bagdihi Level Crossing. Respondent No.7, who is a Police Officer, had been separately charged and took a plea that under the pressure of the public, he had handed over the dead body without sending the same for postmortem examination.

(3.) P .W.1 in his deposition has stated that the deceased was of unsound mind and to his knowledge she had left the house on two occasions and once she was caught hold of inside the jungle. On the date of occurrence i.e. 16.10.1994, the deceased had come to his house on account of birth day of his son and she was alright. On 17.10.1994 in the morning he was informed by the father -in -law of the deceased that the deceased had left the house in the night. Thereafter, a search was made but the deceased was not found. While returning back, they over heard two persons discussing about a dead body lying on the Railway line and, accordingly, they went to the spot and found the deceased lying on the Railway line. This witness has further stated that accused persons were pulling on well with the deceased. This witness appears to have practically supported the case of the defence. P.W.2 is a post occurrence witness and has signed on the inquest report. P.W.9 is the son -in -law of respondent No.2. He, in his deposition, has stated that in the night of 19.10.1994, he and his wife had come to the house of their cousin brother -in -law, Laxmidhar Ada. On 20.10.1994 morning, respondent No.2 came there and informed that the deceased had left the house in the previous night and, thereafter, they went in search of the deceased. In cross -examination, this witness has stated that husband of the deceased was serving at Brajarajnagar prior to the death of the deceased and the deceased was also staying with him. He has further stated that he heard from his wife that the deceased was leaving the house frequently without informing any one and she was doing so due to her mental disorder. This witness has further stated in cross -examination that so long the deceased was in the house of father -in -law, she was living happily. P.W.11 is the witness on which much reliance has been placed by the prosecution. He is the elder brother of deceased. This witness in his deposition has stated that six months after marriage, the respondents were assaulting the deceased on the ground that she had not brought sufficient gold. The deceased was only being supported by her mother -in -law and none other. One or two instances of mental torture has been narrated by him. Though P.W.11 stated about assault on the deceased due to non -fulfillment of dowry demand, his evidence is not supported by evidence of P.W.16, who is father of the deceased. P.W.16 nowhere in his deposition has stated that there was any demand of dowry or that the deceased was being subjected to torture for non -fulfillment of dowry demand. This witness has stated that whenever the deceased came to their house, she used to say that she was doing all the household work alone and nobody was assisting her. There is no other witness on which much reliance is placed by the prosecution.