L.MOHAPATRA, J & S.K.MISHRA, J. JCRA NO.19 OF 2000 (Decided on 09.2.2011) DEEPAK PRADHAN …….. Appellant. .Vrs. STATE OF ORISSA ….. … Respondent. PENAL CODE, 1860 (ACT NO. 48 OF 1860) – S.498-A & 302. For Appellant - Mr. Birendra Kumar Mohapatra. For Respondent - Addl. Govt. Advocate S.K.MISHRA,J. The accused-appellant having been convicted for commission of offence under Sections 498-A/302 of the Indian Penal Code (hereinafter referred to as “the I.P.C.” for brevity) and sentenced to undergo R.I. for life by the learned Sessions Judge, Sundargarh in Sessions Trial No.100 of 1997 has preferred this appeal. 2. Bereft of unnecessary details, the case of the prosecution is that the deceased Saudamini Pradhan was given in marriage to the accused on 20.4.1996. During the subsistence of marriage the allegation against the accused-appellant is that he was ill- treating and torturing the deceased as she was not satisfied with the T.V. and wrist watch that was given to him at the time of marriage. The accused-appellant allegedly assaulted her asking to get cash dowry from her parents. On 10.10.1996 at about 3.00 A.M. one Chandan Swain and Santosh Pradhan being the co-villagers of the appellant came to the informant and informed him that his daughter Saudamini has become seriously ill. The informant then proceeded to the village where he found that his daughter Saudamini was lying dead on a cot inside her bed room. He also noticed bloody forth in the mouth and nostril of his daughter Saudamini. A ligature mark was noticed on the neck of the deceased. Suspecting that his daughter has been killed, he lodged a report before the Officer-in-Charge of Badgaon Police Station. On such report, the O.I.C. registered a P.S. case and took up investigation. The dead body was sent for post mortem examination. After completion of investigation, the Investigating Officer submitted charge sheet for alleged commission of offences under Section 498-A/304- B/302 of the I.P.C. and Section 4 of the D.P. Act. 3. The defence took the plea of denial and the alternative plea that Saudamini was in love with another boy and as her marriage could not be solemnized with that boy, she was unhappy and was quarreling with the in-laws and hence she committed suicide. 4. In order to prove its case, the prosecution examined as many as eighteen witnesses whereas the defence examined only one witness. 5. After taking into consideration the evidence led by the prosecution, the learned Sessions Judge has come to the conclusion that the prosecution has established the following circumstances:- (i) that prior to the incident the accused was not pulling on well with his deceased wife for the simple reason that the wrist watch and the T.V. given to him at the time of marriage were not of his choice and therefore he used to demand Rs.15,000/- whenever his deceased wife used to go to her parents house; (ii) that the accused also used to torture the victim at times and that the dead body of the deceased was found inside her bed room on a cot; (iii) that while in custody the appellant made a disclosure statement before the Investigating Officer under Section 27 of the Evidence Act and led to the discovery of a plastic rope (M.O.1) from inside his house; (iv) that the rope was stained with blood. (v) that the doctor, who conducted the post mortem examination, opined that the death of the deceased was due to strangulation and not due to suicidal hanging. Relying on such circumstances the learned Trial Judge has convicted the appellant for the offences under Sections 498-A and 302 of the I.P.C. There is absolutely no discussions regarding the charge under Section 4 of the D.P. Act. Furthermore, no charge has been framed under Section 304-B of the I.P.C. 6. Assailing the conviction recorded by the learned Sessions Judge, learned counsel for the appellant submitted that the prosecution has completely failed to prove its case of any torture or demand of dowry, inasmuch as there is no direct evidence regarding the same. Furthermore, it is contended that the circumstantial evidence as alleged by the prosecution do not prove the case of the prosecution and, therefore, it cannot be held to be sufficient to come to a conclusion regarding the guilt of the appellant. 7. Learned Addl. Government Advocate, on the other hand, supported the findings recorded by the learned Sessions Judge and prayed that the appeal be dismissed. 8. On an examination of the evidence on record, it is seen that P.W.1(Huraballava Behera) is the informant of the case. He happens to be the father of the deceased. He has stated on oath that the appellant and the deceased were married in the year 1996 on ‘the Akshyayatrutiya’ day. After marriage his daughter Saudamini was residing with her husband in his house. He has further stated that on ‘Deepabali’ in the night at about 3 A.M., Chandan Swain and Santosh Pradhan of village Gangajal came to his house in a trekker and informed that his daughter Saudamini was serious. He along with Polasti Kumar Behera and Madhusudan Purseth of his village went to see his daughter in that trekker. They reached village Gangajal at about 7.30 A.M. in the morning near the house of accused, Deepak Pradhan. He further stated on oath that he saw his daughter Saudamini lying dead on a cot inside her bed room. He noticed that blood was coming out of her nose. He asked the accused-Deepak Pradhan and his Samudhi about the cause of death of his daughter, but they did not give any reply. He alleges that Gountia of the village forcibly dragged him from the house of accused to the verandah of the house of the uncle of the accused. Thereafter the witness proceeded to Badgaon Police Station and lodged written report, which was treated as F.I.R. and marked as Ext.1. Regarding the allegation of dowry torture, the witness has stated that his daughter had complained before him during her visit to his house that her husband and her in-laws were not appreciating the T.V. and wrist watch, which were given to the son- 2 in-law of the witness at the time of marriage and that she was assaulted by her husband(Deepak Pradhan) by means of a lathi. The witness further added that his daughter had also complained before him during her visit to his house on the occasion of ‘Bhaijuyintiaa’ that her husband(Deepak Pradhan) was demanding cash of Rs.15,000/- from him. The witness had assured his daughter (the deceased) that after harvesting he would go to her father-in-law’s house with Rs.15,000/- for giving the same to her husband. On such allegation, the informant stated that he was suspecting that his son-in-law has caused the death of his daughter Saudamini due to non- fulfillment of his demand for cash. In cross-examination he has denied the suggestion that there was a proposal for marriage of Saudamini with Naru Muduli. He has further stated that he was not examined by the Police after lodging of the F.I.R. He admitted that he has not mentioned in the F.I.R. and the statement recorded under Section 161 Cr.P.C. that Gountia forcibly dragged him from the house of the accused to the verandah of the house of the uncle of the accused. 9. The evidence of Polasti Kumar Behera is also similarly placed as that of the evidence of P.W.1 with regard to the journey to village Gangajal after receiving information about the serious conditions of the deceased. P.W.3, Madhusudan Purseth, has gone there along with P.W.1. He has scribed the F.I.R. in the case which was presented before the O.I.C., Badagaon P.S. P.W.4, Hiralal Panigrahi, had solemnized the marriage between the deceased and the accused being the priest thereof and his evidence is not in any way helping the case of the prosecution. P.W.5, Rajendra Jena, P.W.6, Parbati Sahu and P.W.7, Kumari Rita Pradhan, have not supported the case of the prosecution and have been treated as hostile witnesses by the persecution. P.W.14, Mitrabhanu Rai, who happens to be the uncle of the deceased has also stated regarding the compliant made by the deceased about the torture meted out to her in connection with the demand of dowry. It is clear from the materials on record that there is no direct evidence regarding the torture meted out on the deceased. The only material forthcoming in this case is that the deceased made complaint before her father and uncle that she was ill-treated and tortured by the present appellant demanding a cash of Rs.15,000/- as dowry and she was being tortured also for inferior quality of the wrist watch and T.V. However, such materials are not admissible in evidence unless it comes within the four corners of sub-section (1) of Section 32 of the Evidence Act. Thus, those materials cannot be looked into. 10. The other pieces of evidence which have been relied upon by the learned Sessions Judge are recovery of the rope(M.O.1) and the disclosure statement allegedly made by the appellant. P.W.10, Narayan Pradhan and P.W.12, Indramani Muduli, are the two witnesses, who allegedly witnessed the discovery statement made by the appellant. P.W.10 has not supported the prosecution case and has been treated as hostile witness. He has stated that Police seized the Rasi (rope) in his presence and prepared the seizures list (Ext.6) and Ext.6/1 is his signature. He has denied the Suggestion that accused while in police custody confessed his guilt and led the police and gave recovery of a rope from the place of concealment and that police seized the same. P.W.12 has stated that he had been to Badgaon P.S. two to three days after the incident. On being called by the Police he had gone to the village Gangajal. 3 Accused, Deepak Pradhan, also went with him. Accused Deepak brought out a rope from his house and gave the same to the police, who seized the same, and prepared the seizure list. He has been cross-examined by the prosecution wherein he denied that he stated before the I.O. that accused Deepak Pradhan while in police custody confessed his guilt and gave information that he had kept concealed the rope in his house by which the alleged crime was committed and that accused led the police to his house and gave recovery of a rope from his house and that police seized the same. 11. Thus the only evidence that is forthcoming in this case remains to be assessed is the statement of the I.O. regarding seizure of the rope at the instance of the appellant. P.W.18, the I.O. at paragraph-5 of the examination-in-chief states that on 18.11.1996 he arrested the accused Deepak Pradhan. While under Police custody the accused disclosed to have kept the rope by means of which he had killed the deceased and so saying he gave discovery of the said rope from beneath the ‘paddy puduga’ of his house. The I.O. recorded the statement of the accused under Section 27 of the Evidence Act. Ext.13 is the said statement and Ext.6 is the seizure list. However, in Ext.13 the recital reveals that the statement of the appellant was recorded earlier and the recovery was made later, which runs contrary to the statement given by the I.O. Thus in view of such contradictions coupled with the fact that the independent witnesses to the alleged discovery statement and recovery of the weapon of offence have not supported the case of the prosecution, the same has to be viewed with suspicion. 12. In any case based on circumstantial evidence, before convicting the accused, the Court must be satisfied about the following:- (i) the circumstances on which the prosecution relies must be cogently and firmly established leaving no doubt in the mind of the Court about their proof, (ii) each circumstance must be consistent with the hypothesis of guilt of the accused, though taken alone, it may not prove the guilt of the accused. In other words, it must not be capable of explanation by the defence, (iii) all circumstances taken together must be forming a complete chain unerringly pointing towards the guilt of the accused. 13. Applying the above principles to the case at hand, it is seen that the prosecution has not proved the circumstances beyond all reasonable doubts and furthermore the circumstances so established in this case do not form a complete chain unerringly pointing towards the guilt of the accused-appellant. The evidence afore discussed also do not establish a case under Section 304-B of the I.P.C. as the essential ingredient of torture for dowry soon before the death of the deceased is lacking. Furthermore there is no evidence to establish a case under Section 4 of the D.P. Act. 14. Thus, the case of the prosecution fails and the conviction recorded by the learned Sessions Judge, Sundargarh, is erroneous, requiring our interference and therefore we are of the considered opinion that the conviction recorded by the learned Sessions Judge is not sustainable under law. Accordingly, we allow the appeal and set aside the conviction and sentence passed by learned Sessions Judge, Sundargarh, in Sessions Trial No.100 of 1997 against the accused-appellant for the offence under Sections 498-A/302 of the I.P.C. 4 The accused-appellant be set at liberty forthwith, unless his detention is required in any other case. Appeal allowed. 5