AMAR JENA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction and order of sentence dated 14.09.1992 passed by the learned Addl. Sessions Judge, Bhadrak in S.T. Case No. 26/12 of 1992, whereby the appellant (hereinafter called the 'accused') was convicted under section 4 of the Dowry Prohibition Act, 1961 (hereinafter referred to as the 'Act') and sentenced to undergo Rigorous Imprisonment for one year. The factual matrix leading to the case of the prosecution is that in June, 1990, the accused had married to deceased Basanti Jena, the daughter of the informant, according to Hindu rites and customs. It is alleged, inter alia, that before the marriage, the elder brother of the accused had demanded cash of Rs. 2,000/- and a bicycle towards dowry. At the time of marriage, dowry amount of Rs. 1,500/- was paid by the informant with an assurance to pay the rest amount of Rs. 500/- and a bicycle to the accused later on. Since the said amount of Rs. 500/- and the bicycle were not delivered within one year of marriage, the accused and his relatives started torturing the deceased, both mentally and physically. On many occasions, the deceased informed her parents about the torture meted out to her by the accused and his relatives on the demand of dowry. On 24.03.1991, Kalandi Jena, the elder brother of the deceased, visited the house of the accused and, during his stay, witnessing the assault inflicted by the accused to the deceased, he interfered. On 28.03.1991, Binod Jena, the elder brother of the accused, asked the informant to visit their house as the deceased was not well. On 29.03.1991 at 8 A.M., when the elder brother of the deceased reached the house of the accused, found the deceased dead. Marks of injuries were noticed on her dead body. Thereafter, on 30.03.1991, F.I.R. was lodged by the informant alleging dowry death against the accused. The concerned O.I.C. registered a case under sections 498A/304B of the I.P.C. read with section 4 of the Act. During investigation, inquest over the dead body was made, post-mortem examination was conducted and material witnesses were examined under section 161 of the Cr.P.C. After due investigation, charge-sheet under section 306 of the I.P.C. was submitted by the police against the accused. But, it is found that charges have been framed under sections 498A/304B of the I.P.C. read with section 4 of the Act against the accused by the learned Addl. Sessions Judge. The order-sheet dated 29.04.1992 shows that charge under section 306 of the I.P.C. has been framed against the accused, perhaps due to typographical error. When the charge form vide separate sheet denotes framing of charges under sections 498A/304B of the I.P.C. read with section 4 of the Act, the contents thereof were read over and explained to the accused by the learned Addl. Sessions Judge and the accused pleaded not guilty and claimed trial, the typographical mistake appearing in the order-sheet cannot be pressed into service. However, the accused faced his trial for the commission of the offences punishable under sections 498A/304B of the I.P.C. read with section 4 of the Act. Hence, the case of the prosecution.

(2.) The plea of the accused, as revealed from the cross-examination made to the prosecution witnesses and his examination made under section 313 of the Cr.P.C., is that he is innocent and the allegations made against him are false. The specific plea taken by him is that his wife, who was suffering from stomach upset, was taking medicines and, at the time of her death, he was serving at Rourkela and was not present in his house. On the other hand, he has taken a plea of alibi.

(3.) The learned Addl. Sessions Judge, after considering the evidence of five witnesses examined from the side of prosecution, two witnesses examined on behalf of defence and the documents available on record, acquitted the accused of the offences punishable under sections 498A/304B of the I.P.C., but convicted him for the offence punishable under section 4 of the Act and sentenced him thereunder to undergo Rigorous Imprisonment for one year.