B. Panigrahi, J.@mdashOne of the accused Ajaya Mallick who was the husband of the deceased Rangalata is the sole Appellant in this case: Undisputedly, the marriage of the Appellant with Rangalata was solemnised some time in the month of Jestha, 1993. After solemnisation of marriage, Rangalata had been to her matrimonial house m village Saratha. The further case of the prosecution is that Rangalata was subjected to cruelty, harassment and torture by the Appellant and other inmates of the family on account of non-fulfilment of dowry. She, therefore, left the matrimonial house few days before her death and did not return to the appellant�s house. Accordingly, the Appellant and his father went to the house of the deceased''s father and when the deceased was left in the company of the Appellant, his father remained in the house of the deceased in village Chhanua. It is the further case of the prosecution that while she came with her husband, on the way, she was assaulted by the Appellant which had been witnessed by some villagers. After she came back to the appellant�s house, she was subjected to further torture which compelled her to leave the matrimonial house and stay in the house of one Pageli Behera who was a neighbour of the Appellant. Again she was brought back to the appellant�s house and subjected to further assault. This time, she had taken shelter in the house of Anr. neighbour Bikartan Mallick. Since the torture meted out to the victim had gone beyond her power of tolerance, it is stated that she closed the door of the bed-room and put an end to her life.
2. On the following morning, the appellant�s elder brother knocked at the door. When it did not evoke any response, he lodged a report at the Sartha out-post on the basis of which a U.D. Case was registered by P.W.6. There was an inquest over the dead body of Rangalata in presence of her father as well as the Executive Magistrate. At that time P.W.7 who was a signatory as a witness to the inquest report was also present. In the endorsement since no suspicion had aroused in his mind, had not attributed any motive against the Appellant. But, however, three days after the incident, the FIR was lodged by P.W.7 on the basis of which further investigation was carried on. The Investigating Officer (P.W.10) visited the appellant�s house, examined the witnesses, seized the wearing apparels of the deceased and arrested the Appellant and his brother and after completion of investigation placed the charge sheet against the accused persons.
3. The plea of the Appellant in the trial Court was that since the deceased was leading an adulterous life with her brother-in-law, Padmalochan, in a sense of contrition or repentance she put an end to her life.
4. The prosecution had examined ten witnesses in order to sustain a conviction against the Appellant and the other accused. The learned trial Court on a brief resume of the evidence was inclined to acquit the other co-accused, but convicted the Appellant under Sections. 304-B/306/398-A of the Indian Penal Code read with Section 4 of the D.P. Act.
5. Mr. Nayak has urged with strong intensity of conviction that in this case the prosecution has utterly failed to place any material whatsoever to connect the Appellant with the crime. It is true that the marriage was solemnised between the Appellant and the deceased within seven years preceding to the date of incident and deceased met an unnatural death, but the Appellant is not responsible for causing such death. It has been highlighted that immediately after the appellant�s brother lodged an FIR. P.W.6 swung into action and registered it as a U.D. Case. At that stage, PW.7 the uncle of the deceased who was the informant of the case was present. He did not make any grievance that his niece met an unnatural death on account of non-fulfilment of dowry. Therefore, the subsequent report which was lodged three days after holding such inquest is nothing but an after-thought only with a view to put "the Appellant and his other family members to humiliation and harassment. It is curious to note that neither the father of the deceased was examined nor the appellant�s neighbours in whose house the deceased took shelter immediately after the alleged torture was meted out to her. Therefore, the prosecution has utterly failed to show that the deceased was put to torture and harassment immediately before her death.
6. In the FIR it has been narrated that the deceased while coming from her house in the morning was seen by other villagers to have been assaulted, but none of the villagers was examined to support the prosecution story. It is also described that Rangalata was put to torture and she took shelter in Pageli Behera''s house. But, it is strange to note that Pageli Behera was not brought to the Court to narrate the woes of the deceased. Since the subsequent FIR was lodged after due deliberation and consultation three days after the incident no credibility should be attached to it.
7. We found that the mother of the deceased (P.W.8) has been examined as a witness, in the chief examination although she had claimed that her husband and family members agreed to give a gold necklace, but it could not immediately be complied with due to financial stringency. From her deposition it has further transpired that the deceased sent letters to P.W.8 and her husband describing the torture meted out to her, but not a single letter has been reduced in Court. Had any such letter been produced it would have raised some credibility to the evidence of P.W.8. She was examined by the investigating officer. It is curious to note that she did not whisper before the I.O. regarding the non-fulfilment of the dowry and on what count the deceased was put to torture. In this background, the evidence of P.W.8 does not raise any credibility.
8. P.W.7 is the informant of this case who was the uncle of the deceased.
He too was present at the time of holding inquest. The inquest was conducted in presence of an Executive Magistrate. At that time, he did not raise even his little finger alleging that his niece was subjected to any assault, torment or torture due to non-fulfilment of dowry. This FIR was lodged three days after the incident, but no ground explaining such delay had been made out nor narrated in the evidence. Be it noted that the father of the deceased was not examined by the prosecution.
9. Coming to the evidence of the sister of the deceased (P.W.2) it is found that no specific instance of torture has been narrated save and except a general statement regarding demand of necklace and a fan stated to have been made by the inmates. There has been no specific allegation against this Appellant. From the evidence of the Medical Officer (P.W.3) who conduced the P.M. examination : it has turned out that the deceased Rangalata met her fatal and on account of hanging. In his opinion, it was a suicidal hanging. No other visible injury was noticed on the person of the deceased. Therefore, it is very difficult to express any opinion that Rangalata was put to torture, assault and harassment immediately before her death. In the preceding paragraphs we have already discussed that the prosecution had failed to examine even the neighbours in whose house the deceased had taken shelter. While determining the culpability of an accused in a case u/s 304-B, IPC these following features should be taken to consideration:
(1) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances;
(2) such death should have occurred within seven years of her marriage;
(3) she must have been subjected to cruelty or harassment by her husband or any relative of her husband;
(4) such cruelty or harassment should be for or in connection with demand for dowry; and
(5) such cruelty or harassment is said to have been meted out to the deceased soon before her death.
10. In this case on examination of the statement of P.W.6 it appears that the deceased had extra marital relationship with her brother-in-law. The Appellant in his statement u/s 313, Code of Criminal Procedure has clearly and elaborately stated that the deceased, after it was being detected, out of shame put an end to her life.
11. As discussed in the preceding paragraphs, the prosecution has failed to prove any torture, harassment and cruelty on account of non-fulfilment of dowry. Therefore, in our considered view, the Appellant cannot be held guilty of the offences u/s 498-A/304/306, IPC and u/s 4 of the D.P. Act against the Appellant is set aside. The Appellant, if is in custody, be set at liberty forthwith, in case his detention is not required in any other case.
P.K. Misra. J.
12. I agree.
