Orissa High Court
Budhiram Gouda @ vs State Of Orissa on 31 July, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No. 289 of 2004
(In the matter of an application under Section 374(2) of Criminal Procedure Code)
Budhiram Gouda @ ....... Appellants
Budhia & another
-Versus-
State of Orissa ....... Respondent
For the Appellants : Mr. L. Samantray,
Advocate
For the Respondent : Mr. S.J. Mohanty, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 15.07.2025 : Date of Judgment: 31.07.2025
S.S. Mishra, J. The present criminal appeal filed by the appellants
under Section 374 of Cr.P.C. is directed against the judgment of
conviction and order of sentence dated 14.09.2004 passed by the learned
Additional Sessions Judge, Bhanjanagar in S.C. No. 5 of 2003 (S.C.
No.30/2003-GDC) arising out of G.R. Case No. 367 of 2002 (Buguda
P.S. Case No. 136 of 2002), whereby the learned trial Court hasconvicted the appellants for the offence under sections 498-A/34 read
with section 4 of the D.P. Act and sentenced them to undergo R.I. for
two years each and to pay a fine of Rs.500/- each for the offence under
Section 498 IPC and to pay a fine of Rs.500/- each, in default to undergo
R.I. for two months and R.I. for six months and to pay a fine of Rs.500/-,
in default to undergo R.I. for one month under Section 4 of the D.P. Act.
2. Heard Mr. L. Samantray, learned counsel for the appellant and Mr.
S.J. Mohanty, learned counsel for the State.
3. The prosecution case in terse is that the informant P.W.1 lodged a
written complaint before the Buguda P.S. on 04.08.2002 that his
daughter Namita was married to appellant no.1 on 24.05.2002 according
to Hindu rites and customs. After the marriage, his daughter was
subjected to mental and physical torture by the appellants on demand of
dowry of Rs.3000/-. In spite of assurance, as the informant failed to pay
the amount, the torture continued and the accused persons tried to
arrange second marriage of the appellant no.1. It was further alleged that
Page 2 of 13
on 24.07.2002, the appellant no.1 and the deceased came to the house of
the informant and remained till 27.07.2002. On 27.07.2002, the appellant
no.1 along with the wives of his two elder brothers demanded Rs.3000/-
and threatened that unless the amount is paid, they would kill Namita by
strangulation and the appellant no.1 will marry again. It was the further
allegation that on 04.08.2002 while the informant was ploughing land, at
about 12 noon he got information from his niece Sumitra that Namita
was murdered. Thereafter he went to his house immediately and
ascertained from his wife about the fact, who disclosed that one Purna
Chandra Gouda of village Rauti informed that Namita had expired.
Thereafter, the informant proceeded to the house of the accused persons
and ascertained about the fact that the accused persons had killed his
daughter by strangulation and cremated the dead body.
4. On the basis of the aforesaid allegations, Buguda P.S. Case No.
136 of 2002 was registered for the offence punishable under Sections
498-A/304-B/306/201/34 of IPC read with Section 4 of the D.P. Act,
corresponding to G.R. Case No. 367 of 2002 and after investigation,
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charges were framed against the appellants for the offences as mentioned
above and they were put to trial.
5. The prosecution in order to prove its case examined as many as
ten witnesses, whereas the defence took a stand of denial and claimed
trial.
6. P.W.1, was the informant, P.W.2 was the co-villagers of the
informant who accompanied him to the house of the accused persons,
P.W.3 was the witness to the seizure, P.Ws.4 and 5. were the
independent witnesses, P.W.6 is the wife of the informant, P.W.7 is the
son of the informant, P.W.8 is the maternal uncle of the deceased, P.Ws
9 and 10 were the police officers, who investigated the present case.
7. The trial court analyzing the evidence on its appreciation has
arrived at the following conclusion:-
“22. Explanation appended to Section 498-A of the IPC
envisages harassment of the woman where such harassment
is with a view to coercing her or any person related to her to
meet any unlawful demand for any property or valuable
security would also constitute cruelty. Demand of dowry is
prohibited under law and therefore if any demand made
before the marriage at the time of marriage or at any timePage 4 of 13
after the marriage regarding dowry then the act is
punishable u/s 4 of the D.P. Act. Ext.1 is the FIR of this case
and it is alleged in the FIR that all the accused persons
along with their family members always demanded that
Namita should bring the balance of Rs.3000/- towards dowry
and as the same was not paid Namita was subjected to
different varieties of mental cruelty. It is also alleged that
since the payment of Rs.3000/- was not made by the
informant after the marriage therefore the accused persons
were trying for the second marriage of Budhiram. It also
transpires from the FIR that on 27.07.2002 accused
Budhiram along with two wives of his elder brothers have
come to the house of the informant and demanded the
aforesaid balance Rs.3000/- towards dowry. P.W.1 is the
first informant and he stated in his evidence that the accused
was not satisfied with her daughter as she was not able to
work in the house of the accused properly and for that the
accused persons contacted at village Bhabasaro to give
accused Budhiram in 2nd marriage. It also transpires from
the evidence of p.w.1 that when her daughter left his house
prior to her death she was asking him for balance amount of
Rs.3000/- which p.w.1 has not given at the time of her
marriage out of the agreed amount of Rs.10,000/- and for
that she was listening comments from her in-laws. It also
transpires from the evidence of p.w.1 that Namita
apprehended danger to her life for non-payment of balance
amount of Rs.3000/- towards dowry. The aforesaid evidence
of p.w.1 inspires confidence of this court as it was not
discredited during his cross examination regarding the
aforesaid demand of dowry. P.W.2 stated in her evidence
that at the time of marriage of Namita p.w.1 had given
Rs.7000/- as dowry and undertook go give rest Rs.3000/-
after the marriage. P.W.6 is the mother of deceased Namita
and she also categorically stated in her evidence that at the
time of marriage a cash of Rs.7000/- was paid as agreed
towards dowry. It also transpires from her evidence that on
the last occasion while her daughter was in her house
accused Budhiram came along with the wives of his elderPage 5 of 13
brothers and at that time Namita asked her about the
balance of Rs.3000/- for which she took time for two months.
It is also her evidence that Namita told her that as the
amount of Rs.3000/- was not paid she was disliked by her
family members. P.W.7 is the brother of the deceased. He
also stated in his evidence that Namita was telling to take the
balance amount of Rs.3000/- out of the agreed amount of
Rs.10,000/-. It is submitted by the learned counsel for the
defence that several contradictions are appearing in the
evidence of p.ws 1, 6 and 7 regarding the demand of dowry
and harassment to deceased Namita on the ground of
demand of dowry and as such there is no clear evidence on
record regarding demand of dowry and harassment of
Namita on the ground of demand of dowry. It is submitted
that there is evidence on record that accused Budhiram and
his other brothers were separated prior to the marriage and
therefore the other brothers of accused Budhiram cannot be
treated as members of the family of Budhiram. Section 498-A
of the IPC envisages regarding cruelty to a woman by her
husband or relatives of her husband. Even assuming for the
sake of argument that brothers of Budhiram had already
been separated from him prior to the marriage that does not
mean that they ceased to be relatives of Budhiram. The
evidence when read as a whole indicate that all the accused
persons have caused mental cruelty to said Namita on the
ground of demand of dowry. Demand of dowry is prohibited
by Law and therefore such illegal demand of dowry caused
severe mental cruelty to deceased Namita. According to the
learned counsel for the defence unless ingredients of section
304-B of the IPC are proved and established there can be no
conviction u/s 498-A of the IPC. In the decision reported in
(2003) 26 O.C.R. (SC) at page 407 Kaliya Perumal and
another v. State of Tamilnadu the accused was facing his
trial u/s 304-B. In the aforesaid decision it has been held
cruelty is the common ingredient of section 304-B and 498-A
of the IPC. It has also been held in the aforesaid decision
that a person charged with and acquitted of an offence u/sPage 6 of 13
304-B of the IPC can be convicted u/s 498-A of the IPC if
such a case is made out.
23. In the case of Ramesh Kumar v. State of Chhatisgarh
reported in (2001) 21 OCR (SC) at page 667 a Three Judges
Bench of the Supreme Court has upheld the conviction of the
accused u/s 498-A of the IPC although the accused was
acquitted in respect of the offence u/s 306 of the IPC. It has
been clearly held in the aforesaid decision that section 498-A
and 306 of the IPC are independent and constitute different
offences. The decision cited by the learned counsel for the
defence reported in (2003) 25 O.C.R. at page 511 State of
Haryana v. Jai Prakash and others has got no application to
this case. Similarly the decision cited by the learned counsel
for the defence reported in (2004) 27 O.C.R. (S.C.) at
page785 Ashok Vishnu Davare v. State of Maharastra has
also no application to the facts of this case. Namita died
within 2 ½ months from the date of her marriage. There is
acceptable and believable evidence on record that she was
subjected to mental cruelty on the ground of illegal demand
of dowry made by the accused persons even demand was
made after the marriage. Large no.of dowry articles were
seized during investigation. The accused persons have
committed the aforesaid offences u/s 498-A/34 of the IPC
and u/s 4 of the D.P. Act in furtherance of their common
intention as it appears from the circumstances of the case.
Taking into consideration the evidence on record I am to
conclude that the prosecution has proved point nos.5 and 6
against all the accused persons.”
8. The appellants having been convicted for the offence under
Section 498-A IPC read with Section 4 of the D.P. Act while acquitting
them of the charges under Section 302/306/304-B/201/34 IPC. On the
account of their conviction for offence under Section 498-A IPC and
Page 7 of 13
Section 4 of D.P. Act, they have been sentenced on each count.
Aggrieved by the afore referred findings culminated to conviction and
sentence, the appellants have preferred this appeal.
9. Mr. L. Samantray, learned counsel for the appellants has
submitted that conjoint reading of the evidence adduced by the
prosecution witnesses would not make out any offence much less the
offence under Section 498-A IPC and Section 4 of the D.P. Act. At the
same time, he submits that the appellants have sufficiently punished for
having undergone the rigors of the trial and pendency of appeal since
2004. He has taken me to the evidence of all the witnesses in detail to
persuade this Court that no case as such is made out on the basis of the
prosecution evidence, as borne out on record.
10. Mr. S.J. Mohanty, learned Additional Standing Counsel appearing
for the State made rival submission to counter to the submission made by
Mr. Samantray and justify the impugned judgment.
11. The judgment and order of acquittal passed by the learned trial
court in so far as the offence under sections 302/306/304-B/34 of IPC is
Page 8 of 13
concerned being not challenged by the State has attained finality. Even
otherwise the trial court has rightly appreciated the evidence on record to
form an opinion that the prosecution has failed to prove its case beyond
all reasonable doubt. Now coming to the offence under Section 498-A
IPC read with Section 4 of the D.P. Act, if the evidences are analyzed, it
is apparent on record that the demand is in fact germinating from a
customary settlement arrived at in the village before the community. In
fact the prevailing practice in the community is that for every marriage
the community decides what would be the gift/dowry items to be paid by
the bride to groom and vice versa. That would be emanating from the
evidence of P.W.1, the father of the victim, which is relevant. In the
cross examination, P.W.1 has stated “I have got three sons and two
daughters. I have no landed property and I cultivate some lands by
Bhaga from some other persons, i.e., the only source of my family
maintenance. The marriage was regd. by the Kula committee before a
day of the marriage of my daughter. I obtained the receipt of regn. Of
marriage from our Kula committee of Belaguntha.” He has also stated
that he has not made any complaint before the Kula Committee that the
Page 9 of 13
accused gave threatening to his daughter for the second marriage and he
could also report to the Kula Committee about the demand of balance
amount and threatened for the second marriage. He further went on
deposed that “it is a fact that I stated before the I.O. that the dowry
amount and articles to be given in the marriage were decided and settled
by our Kula committee. It is not a fact that the villagers stated that the
deceased died out of diarrhea but not vomiting blood. It is not a fact that
I did not mentioned in my FIR nor stated to I.O. that my daughter told
me that the accused persons have acquising her of not doing the
domestic work properly and for that they are contacting for a second
marriage at Bhabasar with her husband. It is not a fact that the accused
persons have never demanded any cash or any other dowry articles from
me.” P.W.2 in his testimony has stated that at the time of marriage
P.W.1 Banamali had given Rs.7000/- as dowry and undertook to give
Rs.3000/- after the marriage. After ten days of marriage, the son-in-law
and daughter of Banamali Gouda, P.W.1 came to the house of Banamali
Gouda for customary visit. In the similar line, P.W.6 the mother of the
victim has also deposed. She in her testimony has stated that “all the
Page 10 of 13
necessary dowry articles including the furniture with a cash of Rs.7000/-
out of agreed amount of Rs.10,000/- was given at the time of marriage.
Both my daughter and her husband returned to our house on the 10 th day
of their marriage. They stayed for about 10 to 12 days and thereafter
returned after taking the new clothes. Both my daughter and her
husband demanded the balance amount of Rs.10,000/-. When I took time
to give the same later on, my daughter told me that the family members
of her husband are passing comments and dissatisfied with her.” She has
also stated that the balance amount of Rs.3000/- has been consistently
demanded by her son-in-law.
12. Conjoint reading of the evidence of all the witnesses lead to the
only conclusion that it is the Kula Committee (community), who decided
the dowry amount to be Rs.10000/-, apart from the other household
articles. Out of the said ten thousand rupees, seven thousand rupees was
paid at the time of marriage. However, there was a consistent demand by
the son-in-law and the family members in so far as remaining Rs.3000/-
the agreed amount is concerned. This aspect of the matter has been
eminently coming on record without any variation. Therefore, the trial
Page 11 of 13
court’s finding in regard to the charges under Section 498-A of IPC and
Section 4 of the D.P. Act cannot be found faulted with. Hence, I affirm
the same. At this stage, Mr. Samantray, learned counsel for the
appellants submitted that the appellant no.1-Budhiram has already
undergone the entire sentence, as awarded by the trial court, and has
been released from jail. However, appellant nos.2, 3 and 4 have already
undergone about six month imprisonment and they were released on bail.
Therefore, he submits that a lenient view should be taken. He submitted
that appellant no.2 was 30 years, whereas appellant nos.3 and 4 were 42
and 28 years at the time of the alleged incident. The offence is emanating
from the matrimonial dispute and the appellants have no criminal
antecedents. Therefore, he submitted that either the sentence may be
modified or the benefit of the Probation of Offenders Act may be given
to the appellant nos.2, 3 and 4.
13. Taking into consideration the submission made by the learned
counsel at the bar, although I affirm the conviction recorded by the
learned trial court against the appellants under section 498-A IPC read
with Section 4 of the D.P. Act, but think it appropriate to modify the
Page 12 of 13
sentence. Considering the entire features of the case, I could have dealt
with the appellant nos.2, 3 and 4 under Section 4 of the P.O. Act.
However, it has been brought to my notice by Mr. Samantray, learned
counsel for the appellants that appellant nos. 2, 3 and 4 have undergone
custody for six months, which has not been disputed by Mr. S.J.
Mohanty, learned Addl. Standing Counsel. When the appellant nos.2, 3
and 4 have already undergone imprisonment for six months and
appellant no.1 has already served out the entirety of sentence, injustice
would be compounded if I now grant them the treatment under the
Probation of Offender’s Act. I would, therefore, while affirming
conviction, reduce the sentence to the period already undergone by the
appellant nos.2, 3 and 4.
14. Accordingly, the CRLA is partly allowed.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
Dated the 31st July, 2025/Ashok
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa
Date: 01-Aug-2025 20:18:06 Page 13 of 13