The court can reduce the quantum of punishment of a convict, upon its discretion: Hight Court of Orissa.

IN THE HIGH COURT OF ORISSA AT CUTTACK CRA NO.11 OF 1999 From the judgment of conviction and order of sentence dated learned. Sessions Judge Khurda at 23.12.1998 passed by Bhubaneswar in S.T. Case No.898. Dhuleswar @ Dhula Mohapatra versus Appellant State of Orissa Appeared in this case by Video Conferencing Mode: For Appellant Mr.G.K.Mohanty G.P.Samal B.P.Pradhan S.R. Swain D.K.Nanda P.C.Mohanty and P.K.Panda For Respondent Mr. Soubhagya Ketan Nayak Additional Government Advocate MR. JUSTICE D.DASH D. Dash J HEARING & JUDGMENT :09.07.2021 1. The Appellant by filing this Appeal has assailed the judgment of conviction and order of sentence dated 23.12.1998 passed by the learned Sessions Judge Khurda at Bhubaneswar in S.T. Case No.898. The Appellant having faced the Trial for the offence punishable under section 498 A 302 201 read with section 34 of the Indian Penal Codehas been convicted for commission of offence under section 498 A of the IPC. Accordingly he has been sentenced to undergo R.I. for a period of one year. 2 The prosecution case in short is that the Appellant had married Annapurna in the year 1981 and it is said that during said marriage cash gold ornament brass and bell metal utensils and other household articles had been given as dowry. It is the further case of the prosecution that six to seven months after the marriage the accused demanded more dowry and compelled Annapurna to bring one TV from her parents and in order to fulfill that mission left Annapurna at her father’s place. After some time Annapurna returned to her matrimonial house when she found that all her gold ornaments etc. had been sold by the accused. It is also stated that Annapurna was tortured thereafter being not provided with food. She then returned to her father’s house being not able to tolerate the situation any more in the house of the accused. It is next alleged that this accused without bringing Annapurna back or making any attempt in that regard accepted another wife and kept her in his house and through her he begot two children. For that Annapurna had initiated a proceeding claiming maintenance. After that accused Dhuleswar brought Annapurna with her son back which was objected to by the second wife. On 22.1.1993 parents of Annapurna were informed that their daughter had died. So they rushed to the house of the accused. The explanation with regard to the death as offered by family members was that having taken tea Annapurna met her death. The dead body however by that time had been cremated. Being suspicious of said death of Annapurna information was lodged at Balipatna Police Stations. Police having received the information registered Balipatna P.S. Case No.93 and took up investigation. On completion of investigation this accused with five others which include the family member of the accused were placed for Trial by submission of charge sheet for commission of offence under section 498 A 302 201 read with section 34 3 In the Trial the prosecution has examined in total five witnesses. From the side of the defence one witness has also been examined. Besides the above the prosecution has proved the FIRseizure list Ext.2) and forwarding letterThe Trial Court on examination of the evidence of the prosecution witnesses and upon their evaluation at its level has held this accused guilty of commission of offence under section 498 Aof the IPC. He has been acquitted of other charges. All other accused person stood acquitted of the charges. Hence the present Appeal is at the instance of the 4. Mr.G.K.Mohanty learned counsel for the Appellant submits that the appreciation of evidence by the Trial Court in recording the finding of guilt as against this accused for commission of offence under section 498 A IPC is perverse. He submits that the Trial Court ought not to have accepted the omnibus nature of evidence in coming to a conclusion that the accused has subjected his wife Annapurna to cruelty. According to him the evidence to establish the factum of cruelty said to have been meted out at Annapurna are highly discrepant and that aspect being stated by all the witnesses in a general manner without citing any specific instance attributing the role of the accused therein the Trial Court erred in accepting the same to fasten the guilt upon the accused for commission of offence under section 498 A of IPC. He therefore urges for setting aside the finding of guilt of the accused as has been recorded by the Trial It is stated that at the time of Trial the accused was aged around 41 years and at present he is around 64 years of age and earning hand to mouth by cultivation. He further submits that the accused has remained in custody in the case from 29.03.1993 to 15.09.1993 which covers nearly 4 half of the sentence imposed. He therefore alternatively submits that in the event this Court does not feel inclined to interfere with the judgment of conviction it is a fit case to interfere with the order of sentence by reducing the quantum of sentence to the period already undergone by the Appellant. Mr. S.K.Nayak learned Additional Government Advocate submits all in favour of the finding recorded by the Trial Court that it is accused who had subjected his wifeto cruelty. According to him the evidence of all the witness on the score are wholly consistent and those being clear cogent and acceptable the Trial Court has rightly answered the point that this accused husband had tortured harassed and subjected his wife Annapurna to cruelty. In the backdrop of the submission as above this Court is now called upon to have relook at the evidence on record so as to judge the sustainability of the finding rendered by the Trial Court on the score. P.W.2 is the grandmother of the deceased. She has stated that since accused assaulted Annapurna she was compelled to come to their house and at that time she was carrying five months old child in her womb. It is also stated that during her stay in their house she gave birth to a son and for ten years she continued to stay there. She has further stated that the accused kept a mistress during this period. It is also the evidence of P.W.3 who is a co villager of P.W.1 that after marriage Annapurna gave birth to her daughter at her place of stay away from the house of the accused and thereafter the accused brought her back to his house where again the disturbances started. The brother of the deceased who is a Doctor by profession has come to the witness box as P.W.1. He has narrated in detail with regard to demand of dowry etc. as also the subjection of his sister Annapurna to cruelty by this accused. 5 Fact remains that shortly after the marriage Annapurna had to leave her matrimonial home and at that time she was pregnant. In that situation it is ordinarily not expected from a married woman to leave the company of her husband unless she was uncared for and ill treated is not offering is any explanation as to Annarpurna’s leaving her marital home and staying at her father’s place at that point of time and there continuing for a long time. The accused appears to have woken up from deep slumber having enjoyed his life with the mistress begetting the children through her only when Annapurna initiated a proceeding claiming maintenance against him as it was not so tolerated by her any more. There is no evidence eon record to show that any point of time the accused had provided maintenance in any form to Annapurna during her long stay away from her matrimonial home. The evidence on record being together with circumstances as afore discussed provide all the reasons and justifications to hold that the finding rendered by the Trial Court that Annapurna had been subjected to cruelty by this Accused who happens to be her husband is well in order. For the aforesaid this Court is led to affirm the finding of guilt of the accused for commission of offence punishable under section 498 A of the IPC. Coming to the alternative submission of the learned counsel for the Appellant it is seen that there has been lapse of about 28 years since the institution of the case and the accused by now is aged about 63 years. Record further reveals that he being arrested in the case on 29.3.1993 was finally released on bail by the order of this Court on 15.09.1993 which nearly covers half of the sentence imposed by the Trial Court. Taking an overall view of the matter this Court feels inclined to accept the 6 submission of the learned counsel for the Appellant as to the modification of the sentence as imposed by the Trial Court i.e. by reducing the rigorous imprisonment for a period of one year to the period already undergone as that in the facts and circumstances would meet the ends of justice. In the result the judgment of conviction recorded against the Appellant for commission of offence punishable under section 498 A IPC being maintained he is sentenced to the period already undergone. The CRA thus stands allowed in part to the extent as indicated above with the modification of the sentence as aforesaid. The bail bonds executed by the accused shall stand discharged. As the restrictions due to resurgence of COVID 19 situation are continuing learned counsel for the parties may utilize a printout of the order available in the High Court’s website at par with certified copy subject to attestation by the concerned advocate in the manner prescribed vide Court’s Notice No.4587 dated 25th March 2020 as modified by Court’s Notice No.4798 dated 15th April 2021. Judge 

Summary: Where the convict had undergone half of his sentence that was imposed on him, the court may upon its discretion reducing the quantum of sentence to the period already undergone by the convict, provided that such does not hamper in providing Justice. A single Judge bench comprising Hon’ble Justice D. Dash, in the matter of Dhuleshwar @ Dhula Mohapatra Vs. State of Orissa (CRA NO.11 OF 1999), dealt with an issue where the appellant filed an appeal, assailing the judgement of conviction and order of sentence passed by sessions judge, Khudra at Bhubaneswar. The appellant faced the trial for the offence punishable under section 498-A/302/201 read with section 34 of the Indian Penal Code (in short, ‘the IPC’) had been convicted for commission of offence under section 498-A of the IPC. The appellant was sentenced to rigorous imprisonment for a period of one month. In the present case the appellant had married Annapurna and in the year 1981 and it was said that during the said marriage, cash, gold ornament, brass and bell metal utensils and other household articles had been given as dowry. Further after 6 to 7 months, the prosecution compelled Annapurna to bring one tv from her parents and for the fulfilment of the same, the prosecution left Annapurna at her parents’ place. Annapurna returned to her matrimonial house knowing that in her absence all her ornaments were sold by the accused. Thereafter she was also tortured and was not provided proper food. Failing to tolerate such a situation, Annapurna returned to her parental house. It was also alleged that the accused later married another woman and begot Annapurna and their children. Annapurna initiated a proceeding claiming maintenance. Annapurna and her son were brought back to the matrimonial house which was objected to by the second wife, and then on 22.1.1993, the parents of Annapurna were informed that their daughter had died, after having tea. On suspicion of that, an FIR was lodged in the nearby police station and an investigation was initiated, upon which the accused with 5 other family members were placed for Trial for the commission of offence under section 498-A/302/201 read with section 34 IPC. The trial court held the accused guilty of commission of offence under section 498-Aof the IPC and, acquitted him of other charges. All other accused were also acquitted of other charges. Hence, the present Appeal is at the instance of the Appellant. The counsel for the Appellant stated that the court erred in accepting the guilt upon the accused, as he stated that the evidence to establish the factum of cruelty that had been meted out at Annapurna were highly discrepant and that aspect had been stated by all the witnesses in a general manner without citing any specific instance. Further, the counsel also pointed out that the accused had covered half the sentence already and there prays to the court to reduce the quantum of sentence to the period already undergone by the appellant. The Additional Government Advocate on the other hand submitted that the evidence of all the witnesses on the score was wholly consistent and was clear, cogent and acceptable and also stated the Trial Court had rightly answered the point that this accused-husband had tortured, harassed and subjected his wife Annapurna to cruelty.  After taking an overall view the court “reduced the rigorous imprisonment for a period of one year to the period already undergone as that in the facts and circumstances would meet the ends of justice”. Click Here For The Judgement