L.MOHAPATRA, J & B.K.PATEL, J. CRA. NOS. 53, 56 OF 1999 (Dt.04.11.2011) BRAJABANDHU ACHARYA & ANR. ………Appellants . Vrs. STATE OF ORISSA ……..Respondent PENAL CODE, 1860 (ACT NO.45 OF 1860 ) – S.304-B. For Appellant - M/s. Bibhu Prasad Mohanty, D.Kumar & A.P.Ray. For Respondent - Addl. Govt. Advocate L. MOHAPATRA, J. Both the Criminal Appeals arise out of the judgment and order dated 30.1.1999 passed by the learned Second Additional Sessions Judge, Puri in S.T.No.9/116 of 1996. Two appellants in both the appeals are related as father and son. Brajabandhu Acharya-appellant in Criminal Appeal No.53 of 1999 is father of Girijanandan Acharya, appellant in Criminal No.56 of 1999. Both of them have been convicted for commission of offence under Sections 498-A and 304-B read with Section 34 of the Indian Penal Code ( in short ‘IPC’) and each one of them has been sentenced to imprisonment for life for conviction under Section 304-B IPC. No separate sentence has been imposed for their conviction under Section 498-A IPC. 2. Case of the prosecution is that appellant-Girijanandan Acharya married the deceased-Pravasini on 30th June 1994. It is alleged that at the time of negotiation for marriage, there was demand of dowry. Appellant-Girijanandan demanded a Hero Honda Motorcycle whereas appellant-Brajabandhu demanded a colour T.V. and cash of Rs.15,000/- towards travelling expenses of the bridegroom party. Two days prior to the marriage, elder brother of the deceased, P.W.6 handed over Rs.15,000/- to the appellant- Brajabandhu through his brother-in-law, P.W.12 and at the time of marriage, he also gave Rs.55,000/- to the mediator, P.W.13, who in turn gave the same to appellant-Girijanandan for purchasing a Motorcycle. Apart from the above, on demand of the appellants, a further sum of Rs.20,000/- was given towards the cost of utensils and furniture. It is also alleged in the F.I.R. that the deceased-Pravasini was ill-treated and tortured by both the appellants and appellant-Girijanandan, husband of the deceased, made further demand of a Motorcycle as the amount of Rs.55,000/- given by P.W.6 for purchasing a Motorcycle was spent by both the appellants in course of marriage of appellant-Girijanandan. It is also alleged that deceased-Pravasini used to tell about the ill-treatment and torture meted out to her by both the appellants whenever she visited her parent’s house or when anyone visited the house of the appellants. Case of the prosecution is that for non-fulfillment of second demand for a Motorcycle, Pravasini was killed in the night of 2nd/3rd August, 1995 in the house of the appellants. At about 2.00 A.M. on the said date appellant-Brajabandhu presented a written report (Ext.11) in Kumbharapara Police Station, which was registered as Kumbharapara P.S.Case No.105 of 1995 under Section 302 IPC and investigation was taken up by P.W.25. In course of investigation, it was found that bed room of appellant-Girijanandan was locked from outside and P.W.25 learnt from the appellant-Brajabandhu that the dead body is lying on a cot inside the said room. As the key of the lock was not available, P.W.25 broke open the lock in presence of witnesses and found the deceased lying dead in a poll of blood on her face on the bed in flat position facing upward and three pillows had been kept under her body from knee to neck. Bleeding injuries were found on her left check and upper lip. Some household articles were lying scattered in the said room. Appellant- Girijanandan was not available in the house. On 5.8.1995 on receipt of information, appellant-Girijanandan was arrested from Baramunda Bus Stand, Bhubaneswar. After getting information about death of the deceased-Pravasini, P.W.6 and other relatives immediately came to Puri and after ascertaining the cause of death, a written report was lodged in Kumbharapara Police Station (Ext.3) but the same was not treated as F.I.R. as an F.I.R. has already been lodged by appellant-Brajabandhu in that respect earlier and on completion of investigation, charge-sheet was submitted against the appellants for commission of offence under Sections 304-B and 498-A IPC but at the time of trial, both the appellants faced trial for commission of offence under Sections 304-B and 498-A IPC read with Section 34 of the said Code and appellant-Girijanandan was separately charged under Section 302 IPC for intentionally causing death of his wife-Pravasini in the night of occurrence. 3. Twenty six witnesses were examined on behalf of prosecution to bring home the charges and the relevant witnesses for the purpose of the case are P.Ws.6,7,8,9,10,11,12,13 and 14, who are related to the deceased and three of them acted as either mediator or barber or priest. Apart from two investigating officers, P.Ws. 25 and 26, other witnesses are mostly seizure witnesses. The doctor, who conducted postmortem examination, was examined as P.W.15 and the Scientific Officer, who visited the spot and prepared a spot map, was examined as P.W.19. The Executive Magistrate, in whose presence inquest was done, was examined as P.W.22. Both the appellants denied the charges and appellant-Girijanandan took a plea that on the date of alleged occurrence, he had gone to the house of his maternal uncle situated at Sakhigopal and returned home on 3.8.1995 when the police arrested him and took to the police station. Appellant-Brajabandhu took a plea that after his retirement, he was having a nursery in front of his residential house and the boys of his basti demanded a part of the nursery for their play ground to which he did not agree and, therefore, his neighbourers had become his enemy. According to appellant- Brajabandhu in absence of his son, some unknown culprits committed the murder of decease-Pravasini and took away his cycle and attachi. 4. Learned Additional Sessions Judge relied on the evidence of P.Ws.6,7,8,11,12 and 14 and came to a conclusion that not only at the time of marriage but also after the marriage, there was demand of dowry and deceased-Pravasini was ill-treated and tortured for non-fulfillment of demand of dowry by appellant-Girijanandan for a Motorcycle. Relying on the evidence of the above witnesses and evidence of the doctor, who conducted post mortem examination, learned Additional Sessions Judge found both the appellants guilty of the charge under Sections 304-B and 498-A read with Section 34 IPC and convicted them thereunder. Appellant-Girijanandan, who had been separately charged under Section 302 IPC, was acquitted of the said charge. 5. Challenging the impugned judgment, learned counsel for the appellants in both the appeals submitted that the entire case of the prosecution relating to demand of dowry before, at the time of and after the marriage is after thought. At no point of time there was any demand of dowry by either of the two appellants and the same is evident from the evidence of P.Ws.25 and 26, who had examined the above relevant witnesses at the time of investigation. According to the learned counsel for the appellants though death of Pravasini took place one and half years after the marriage, in absence of any material whatsoever to show that she had been subjected to torture or ill-treatment for non-fulfillment of demand of dowry, offence under Section 304-B cannot be said to have been made out. It was also contended by the learned counsel that entire case of the prosecution that the deceased-Pravasini had been subjected to torture and ill-treatment at the hands of both the appellants is not supported by any legal evidence, on the basis of which, an order of conviction can lie. Learned counsel for the State relying on the evidence of said witnesses submitted that there is clear and cogent evidence with regard to demand of dowry before, at the time of and after marriage and there is also evidence to show that not only the appellant-Girijanandan ill-treated and tortured the deceased-Pravasini for non- fulfillment of demand of dowry in respect of a Motorcycle, but also appellant Brajabandhu misbehaved with her on several occasions. Therefore, the learned Additional Sessions Judge rightly placed reliance on the said witness to record an order of conviction for the offence committed by them. 6. In order to appreciate the submission of the learned counsel appearing for the appellants as well as for the State, it is not necessary for the Court to look into the evidence of twenty six witnesses examined on behalf of the prosecution. We would like to deal with the evidence of relevant witnesses, namely, P.Ws.6, 7, 8, 9, 10, 11, 12, 13 and 14 specially with reference to the evidence of P.Ws.25 and 26 P.W.6 is the brother of deceased-Pravasini. He, in his deposition, has stated that when his family was in search of a suitable bridegroom for the deceased, P.W.13 came with a proposal of appellant- Girijanandan and the matter proceeded thereafter. Ultimately a decision was taken to solemnize the marriage between the appellant- Girijanandan and deceased. He, in his deposition, has also stated that there was no demand for dowry from the side of appellant-Brajabandhu and his wife. But the appellant-Girijanandan had demanded a Hero Honda Motorcycle as dowry. They accepted the demand and fixed a date for betrothal ceremony. In the said date, marriage was fixed to 30th June, 1994 and appellant-Brajabandu raised a demand for colour T.V. and Rs.15,000/- towards travelling expenses. Two days before the marriage, this witness stated to have sent Rs.15,000/- to appellant- Brajabandu through his brother-in- law, Nikunja, P.W.12 and on the date of marriage he stated to have paid Rs.55,000/- to the mediator, P.W.13, for purchasing a Motorcycle. The said amount was handed over to appellant-Girijanandan by P.W.13. Later, on the demand of appellants, a further sum of Rs.20,000/- was given towards cost of utensil and furniture. After marriage, the deceased came to her in-laws house. One month after the marriage when he visited the house of appellants to see the deceased, he invited appellant-Girijanandan and deceased-Pravasini to come to his house and also took them with him.. Two days thereafter appellant-Girijanandan came back to Puri and deceased-Pravasini remained along with her parents for two months. During her stay, she disclosed that she was being assaulted by the appellants and she was being forced to bring another Motorcycle from her father’s house since Rs.55,000/- given at the time of marriage for purchasing a Motorcycle was spent to meet the marriage expenses. This witness has further stated that to his hearing, the deceased told to her mother, P.W.7, that she was being harassed and tortured and was subjected to in-human behavior by appellant-Brajabandhu. She was alleged to have stated that she was not being allowed to dine with the appellants on the dining table and was not allowed to sleep on the cot. Two months after the deceased stayed in her parent’s house, appellant-Girijanandan brought her back to Puri. In the second week of December, 1994, the elder sister of deceased-Pravasini, P.W.8, visited the house of the appellants along with her husband, P.W.14 and it was disclosed before them by the deceased that she was being tortured in connection with demand for a Motorcycle. During last week of December, 1994, this witness visited house of the appellants with an intention to bring back the deceased and on that day both the appellants demanded a Motorcycle and said that they would allow the deceased to go provided a Motorcycle is given. He promised to give a Motorcycle and brought the deceased to his house. The deceased remained in the house of her parents till June, 1995 and in the first week of June, 1995, appellant-Girijanandan again came to his house and wanted to take back the deceased. The parents of the deceased did not agree as the Motorcycle had not been arranged but on insistence of appellant- Girijanandan, deceased-Pravasini was allowed to go with him. Two days thereafter on 3.8.1995 at about 2 P.M. they were informed from the local police station that the deceased has been killed in the night of 2.8.1995. This witness has been cross- examined at length and all the suggestions made to him were denied. During investigation, P.W.6 was examined by I.O. P.W.25. In course of cross-examination, P.W.25 stated that at the time of investigation, when P.W.6 was examined by him, he did not state that appellant- Girijanandan demanded a Hero Honda Motorcycle. He also did not say that he had given Rs.55,000/- to the mediator, Govinda Satpathy on the marriage alter to give the same to the appellants. He did not state before him that the appellant refused to accept the articles such as utensil and furniture, which were arranged for giving to the deceased after marriage and demanded cash in place of those articles. He did not also state that the deceased while in their house told him that she was forced to bring another Motorcycle from her father. He did not also state that the deceased told him that the appellants spent the money, which was given to them at the time of marriage, to meet the marriage expenses. In view of the above, the whole story put forth by P.W.6 in Court had never been told before the police during investigation. P.W.7 is mother of the deceased. She, in her deposition, has stated that prior to betrothal ceremony, appellant-Girijanandan demanded a Motorcycle and after the ceremony, appellant-Brajabandhu demanded a colour T.V. and travelling expenses. She came with a little different story saying that on the date of marriage, the appellants refused to take T.V. and Motorcycle, which was demanded earlier. The appellants demanded cash of Rs.55,000/- i.e. Rs.20,000/- towards colour T.V. and Rs.35,000/- for the Motorcycle. She has also stated about demand of Rs.20,000/- in place of utensil and other articles. Like P.W.6, she also stated in Court that the deceased was being abused in filthy language by appellant-Brajabandhu and that she was subjected to cruelty and harassment by the appellants. She has also stated that some time after the marriage, appellant-Girijanandan raised a fresh demand for Motorcycle. This witness was also examined in course of investigation by P.W.26. In cross-examination, P.W.26 has stated that during investigation she had examined P.W.7 and in course of her examination, she never stated before him that the appellant- Girijanandan demanded a Motorcycle prior to betrothal ceremony. She also did not state before him that on the date of betrothal ceremony, appellant-Brajabandhu demanded a colour T.V. and wife of appellant- Brajabandhu demanded travelling expenses for the marriage. She also did not state that during investigation before P.W.26 that her eldest daughter and son-in-law had come to Cuttack in connection with their land dispute and that she asked her eldest daughter- Pratima to go to the house of the deceased and that the eldest daughter visited the house of the deceased and on her return, told that condition of the deceased was not good in her marital home and suggested her to bring back the deceased. She also did not state that she asked her son to go to the house of the deceased to bring her immediately. She also did not state before P.W.26 that appellant-Brajabandhu was abusing the deceased in filthy language or that the deceased was subjected to cruelty and harassment by the appellants in every walk of her life in her matrimonial home or that appellant-Girijanandan demanded a Motorcycle and was ill-treating the deceased. It is, therefore clear that whatever P.W.7 stated in the Court had not been stated before the I.O., P.W.26 at the time of investigation. Now coming to the evidence of P.W.8, it appears that she is sister of the deceased-Pravasini. She, in her deposition, has stated that her brother Deba Prasad Sarangi, P.W.-6 had given Rs.55,000/- to the mediator, Govinda Satapathy, P.W.13 and in turn P.W.13 gave the said amount to appellant-Girijanandan. She further stated that there was further demand of Rs.20,000/-. She also stated that in the 2nd week of December, 1994 she, her husband, her father and one of her brothers had been to Cuttack and from Cuttack, she and her husband had gone to the house of deceased at Puri. On that occasion, she observed that the deceased was in a depressed state of mind and the deceased also expressed before her that she was being given food on some leaves and she was subjected to cruelty and harassment in connection with demand of dowry of a Motorcycle. Subsequently when the deceased visited her father’s house, she also came there and the deceased told her that she was being ill-treated in her matrimonial home and at times her father-in-law appellant-Brajabandhu asked her for illicit relationship. Again in 1995, she visited the house of the deceased along with her husband but they were not properly treated by the family members of the appellants. She was also not allowed to talk with the deceased. While she was on the roof of the house, the deceased came to her with a pillow and at that time appellant-Girijanandan came and dragged her from that place. On the next date, they had to leave Puri and while leaving, they also saw the appellant-Girijanandan misbehaving with the deceased. This witness was examined during the investigation by P.W.26. In cross-examination P.W.26 stated that at the time of examination of P.W.8, she had not stated that on the marriage alter her brother had given Rs.55,000/- to P.W.13, who gave that amount to appellant-Girijanandan. She had also not stated about further demand of Rs.20,000/-. She had not stated before P.W.26 that the deceased was being given food on leaf and she had also not stated that on her return from the house of deceased she told about the condition of the deceased to her brother. She had also not stated before P.W.26 that the appellant-Girijanandan dragged the deceased in her presence in his house during Bahuda Yatra in the year 1995. Therefore, this witness has also developed the case of the prosecution at the time of trial. P.W.9 is the Priest, who conducted the marriage and he in his deposition has stated that before the Hastagranthi Ceremony, the groom’s party demanded the dowry amount saying that unless the demand was paid, marriage would not be performed. At that time P.W.6 handed over a sum of Rs.55,000/- to P.W.13, who paid the said amount to appellant-Girijanandan. This witness was also examined by P.W.26 during investigation and at the time of investigation, he had not stated that P.W.6 had paid a cash of Rs.55,000/- to the appellants. Similar is the evidence of P.W.10, who acted as Barbar during marriage. Therefore, P.Ws.9 and 10, who had not stated regarding demand of dowry at the time of their examination, during investigation, developed the prosecution case and stated about the demand of dowry. P.W.11 is father of the deceased-Pravasini. He has repeated most of the statements made by P.W.6 with regard to demand of dowry. However, this witness in course of his examination during investigation by P.W.26 had not stated that before celebration of Hastagranti, appellants demanded a colour T.V. and Motorcycle as dowry. He had not also stated that his son, P.W.6 gave Rs.55,000/- to the Mediator P.W.13, who gave the same amount to appellant-Girijanandan. He had also not stated during investigation that the deceased complained before them that her father-in-law is a characterless person and at times wanted to treat her as his wife. He had also not stated before P.W.26 that the deceased complained of ill-treatment and harassment at the instance of the appellants in various ways. Therefore, this witness has also developed the prosecution case at the time of trial. P.W.12 is the brother-in-law of deceased and has stated in his deposition that he had paid Rs.15,000/- to the appellant-Brajabandhu towards traveling expenses of the groom’s party and in his presence, P.W.6 had given Rs.55,000/- to P.W.13, who in turn handed over the amount to appellant-Brajabandhu. He in his deposition has stated that a further sum of Rs.20,000/- was paid in place of household articles as per demand of the appellants. He has further stated that when he had visited the house of appellants during Gundicha Festival day in the year 1995, the deceased complained before him that the accused persons instead of purchasing a motorcycle spent the amount otherwise and requested her to tell her brother to give a Motorcycle to her husband. She also complained that she was subjected to cruelty and harassment. On examination of the evidence of this witness, we find that though he claimed to have visited the house of appellants during Gundicha Yatra in the year 1995, P.W.8, who is sister of the deceased claimed to have visited the house of deceased on the very same day but does not speak of presence of P.W.12 in the house of the deceased on that day. On the other hand, she only stated to have visited the house of the deceased at Puri along with her husband P.W.14. Therefore the evidence of this witness is not free from doubt. P.W.13 is the Mediator, He also stated with regard to the demand of colour T.V. and Motorcycle by appellant-Brajabandhu and also stated that a cash of Rs.50,000/- had been paid to the appellants for purchasing a colour T.V. and Motorcycle. This witness was examined by P.W.25 at the time of investigation. From the evidence of P.W.25, it appears that in course of investigation, he had not stated before P.W.25 that appellant- Brajabandhu demanded a colour T.V. or that the appellant-Girijanandan demanded a Motorcycle. He had not stated during investigation before P.W.25 that in his presence, the appellant-Brajabandhu demanded a colour T.V. for his son on the betrothal ceremony. Therefore, this witness has also developed the case of the prosecution at the time of trial. P.W.14 is the brother-in-law of the deceased and husband of P.W.8. He, in his deposition, has stated that at the time of marriage, cash of Rs.55,000/- was paid to the groom at the marriage alter for a Motorcycle and a colour T.V. and P.W.6 had given that money through P.W.3 to appellant-Girijanandan. After the marriage, he had visited the house of appellants on two occasions, once in December, 1994 and again in Bahuda Yatra day in the year 1995. He did not find the deceased in a proper state of mind and on being asked, wife of appellant-Brajabandhu stated that appellant-Girijanandan and the deceased were not pulling on well in connection with the Motorcycle promised to be given at the time of marriage. This witness was examined during investigation by P.W.25. At the time of investigation, he had not stated before the I.O., P.W.25 that the deceased and appellant-Girijanandan were not pulling on well in connection with a Motorcycle promised to be given to appellant-Girijanandan at the time of marriage. Therefore, this witness has also developed the case of the prosecution to some extent at the time of trial. Rest of the witnesses are not material for the purpose of the case since they are either seizure witnesses or the scientific officer or photographer or the Executive Magistrate, who was a witness to the inquest. 7. On careful examination of the evidence of all the above witnesses, it appears that though P.Ws.6, 7, 8, 9, 10 and 11 stated in course of trial that the appellants had demand a colour T.V. and Motorcycle and also demanded further sum of Rs.20,000/- towards cost of utensil and furniture, but they had not stated so during investigation either before P.Ws.25 or P.W.26. They developed the case of the prosecution to that extent in course of trial. So far as further demand of a Motorcycle after marriage is concerned, these witnesses were also silent about the same during their examination under Section 161 Cr.P.C. by P.Ws.25 and 26. The entire case relating to demand of dowry before, at the time of and after marriage has been developed only in course of trial. Though the evidence of P.Ws.11 and 14 has been contradicted by evidence of P.Ws.25 and 26 to some extent, considering the entire evidence placed by the prosecution with regard to demand of dowry, we are unable to accept the evidence of the above two witnesses and consequently hold that the prosecution only at the