MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of hearing
Case Details
1 IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.233 of 1999 From the judgment dated 04.09.1999 passed by the learned Addl. Sessions Judge, Malkangiri in Sessions Case No.107/217 of 1999/1998. 1. Mirdulkanti Haldar 2. Parashar Haldar 3. Arpana Haldar 4. Krishna Talukdar …. Appellants State of Odisha -versus- …. Respondent For Appellant : Mr. A. Tripathy, Advocate For Respondent : Mr. S.K. Nayak, AGA CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of hearing : 26.04.2024 : Date of judgment : 20.08.2024 V. Narasingh, J. The Appellants have called in question the judgment of conviction and order of sentence dated 04.09.1999 passed by the learned Addl. Sessions Judge, Malkangiri in Sessions Case No.107/217 of 1999/1998 arising out of G.R. Case No.62 of 1998 on the file of learned S.D.J.M., Malkangiri. 2. It is worthwhile to note here that during pendency of this appeal, a memo was filed that Appellant No.1 passed away on 17.18.2010 and accordingly the appeal abates against the said Appellant No.1. The appeal is thus confined to Appellant No.2- Parashar Haldar (husband), Appellant.3-Arpana Haldar (mother-in- CRA No.233 of 1999 Page 1 of 9 law) and Appellant No.4-Krishna Talukdar (sister in law) of the deceased. 3. The Appellants have been convicted for committing the offence under Section 302/34 of the Indian Penal Code (for short, “the IPC”). Accordingly, they have been sentenced to undergo imprisonment for life. 4. The case of the prosecution is that on 26.01.1998 at about 10.30 P.M one Dipankar Haldar (P.W.3) lodged a written report before the Orkel Police Station stating therein that on 25.1.1998 at about 9 P.M there was a feast in the house of one Sekhar Mandal. All his family members were engaged in the feast. Apu Haldar, Aunt of said Dipankar Haldar and his sister Krishna went to the house to call the wife of his brother to take meal. It is alleged that they noticed Rebati Haldar, wife of Appellant No.2 committed suicide with the help of lungi. Seeing the incident, they came outside the house and shouted. Hearing the shout, father-in-law (Appellant No.1) of the deceased Rebati and Ramesh Chandra Ray (P.W.5) reached at the spot and cut the lungi from the top and Ramesh Chandra Roy brought down the dead body slowly. Said Dipankar Haldar requested the O.I.C, Orkel Police Station for taking necessary action. After receipt of the written report, Orkel U.D.P.S Case No.1 of 1998 was registered and the O.I.C directed the ASI to take up enquiry. During enquiry, inquest was conducted and dead body was sent to the hospital for post-mortem examination. On 11.02.1998 at about 8.00 P.M one Ranjit Biswas (Informant) presented a written report before the OIC Orkel P.S to the effect that the son of Appellant No.1, namely, Parashar Haldar (Appellant No.2) who married the deceased Rebati nine months CRA No.233 of 1999 Page 2 of 9 back, mother-in-law (Appellant No.3), father-in-law (Appellant No.1) and sister-in-law (Appellant No.4) were torturing the deceased mentally and physically and the deceased told the same many times. One and half months back the son-in-law (Appellant No.2) went with the deceased and left her in her paternal house and told that the deceased was unable to perform household work and she was quarreling with the mother-in-law, father-in-law and sister- in-law and left his in-laws house. On 22.1.1998 Appellant No.2 came and wanted to take his wife and he did not agree to leave the deceased. Appellant No.2 told that he had convinced his father, mother and sister and they would not quarrel with her. And, on 23.1.1998 the deceased went with her husband. And, on 27.1.1998 at about 11 A.M, one Meghanath Haldar and Ananta Biswas (P.W.4) informed him that his daughter was seriously ill. Getting the information, he, Bidhana Mistry and his wife (P.W.7) went to the house of the deceased and found his daughter lying dead and some portion of the lungi was hanging in the roof. Therefore, he suspected that the accused persons murdered his daughter. After receipt of the report, Orkel P.S. Case No.18 of 1998 was registered against the accused persons. After investigation, charge sheet was submitted under Sections 498-A/304-B/302/34 IPC read with Section 4 of the D.P Act. 5. To drive home the charge, the prosecution examined 12 witnesses. Their descriptions run thus: P.W.1 to 5 - co-villagers P.W.6 - Informant. P.W.7 - Mother of the deceased. P.Ws.8 & 9 the witnesses who heard from the deceased about the torture by the accused persons. P.Ws.10 & 11 - Doctors. CRA No.233 of 1999 Page 3 of 9 P.W.12 - I.O Besides the above, the prosecution has proved several documents which have been admitted in evidence and marked Exts.1 to 12. 6. The defence plea was one of complete denial and false implication. Defence has examined two witnesses and no evidence was adduced on behalf of the defence. 7. Learned counsel for the Appellants submitted that admittedly there are no eye witnesses to the alleged occurrence. The entire prosecution case rests on circumstantial evidence. The Appellants faced trial for charges under Sections 498-A/304- B/302/34 IPC read with Section 4 of the D.P Act and have not been found guilty for the offences under Section 498-A/304-B IPC but they have been convicted for the offence under Section 302/34 IPC. The chain of circumstances is not complete so as to conclusively establish the guilt of the appellant. The further submission of the learned counsel for the Appellants that in the given facts,
Legal Reasoning
unexplained delay in lodging the FIR is also fatal to the prosecution. 8.
Legal Reasoning
Learned Addl. Government Advocate, Mr. Nayak for the State supported the impugned judgment passed by the learned trial court and submitted that the Appellants were rightly convicted by the trial court under Section 302 IPC and this Court should not interfere with the same. 9. It is borne out from the evidence on record that on the basis of the written report submitted by one Dipankar Haldar (P.W.3) about the death of Rebati Haldar, wife of Appellant No.2 CRA No.233 of 1999 Page 4 of 9 on 25.01.1998, Orkel U.D. P.S. Case No.1 of 1998 was registered and inquiry was conducted by A.S.I, A.K. Naik (P.W. 12). 10. P.Ws.10 and 11 conducted post-mortem examination over the dead body of the deceased on 28.1.1998 and found the following external and internal injuries: “1) A bruise of size 4” x 4” over the dorsum of left forearm. 2) A contusion of size 2” x 2” over dorsum of left arm. 3) A contusion of size 3” x 2” over right forearm. 4) Two bruises over the chest on right having size 3” x 2” and 2” x 1”. 5) Fracture of 3rd to 9th ribs on right side and fracture of 8th, 9th and 10th ribs on left side. 6) Extra vasated blood in the subcutaneous tissue of the right side chest wall. 7) Right lung congested, oedmatous and contused. Internal injuries : 1) Both lungs congested, Pleura congested, Larynx and Trachea contested, Paricadium and heart congested. On dissection, no ligature mark was present on the neck. In the opinion of the doctor (P.W.10) the cause of death is homicidal in nature and caused due to asphyxia due to pressure on the chest. In his report vide Ext.3, he has further opined that the injuries are sufficient in the ordinary course of nature to cause death. His further opinion was sought relating to the weapon “Pidha” (M.O-I) and in his report Ext.5 he opined that asphyxia can be caused by M.O.I. The doctor (P.W.11) has also concurred with the opinion of P.W.10 that the deceased died due to pressure on chest and injuries are homicidal and ante mortem in nature. Thus it is established that the deceased Rebati suffered homicidal death. CRA No.233 of 1999 Page 5 of 9 11. It is the case of the prosecution that P.W.6 the father of the deceased lodged the complaint on 11.02.1998 relating to the death of the deceased in respect of which Orkel U.D.P.S. Case No.1 of 1998 was registered and on receipt of that complaint Orkel P.S. Case No.18 dated 11.2.1998 was registered. 12. It is apt to note here that in the written complaint which was scribed by one Prakash Behera at the instance of P.W.6 reasons for delay in lodging the FIR have been succinctly stated. 13. P.W.6 father of the deceased has stated that Parashar Haldar (Appellant No.2) married his daughter nine months prior to the date of occurrence. It is borne out from the evidence of P.W.6 that his son-in-law came with his daughter and left her in her parental her accusing that she was not working and taking meal surreptitiously and left her. After one and half months, his son-in- law wanted to take back his wife (since deceased) to his house. Initially P.W.6 relented but ultimately deceased went with her husband (Appellant No.2) four days prior to the fateful day i.e. 11.07.1998. The evidence of P.W.7 the mother of the deceased is also to the same effect. 14. It is stated that on getting information about the death of their daughter, P.Ws.6 and 7 went to the matrimonial house of their daughter and there they found the deceased to be lying dead. There was a lungi on the roof and they were given the impression that the deceased committed suicide by hanging. 15. Two defence witnesses were examined to fortify the plea of suicide. Since the same stood negated by the evidence of doctors (P.Ws.10 and 11), the learned trial court held the said witnesses to CRA No.233 of 1999 Page 6 of 9 be unreliable. And, ex-facie this Court does not find any infirmity in such appreciation of evidence. 16. In the instant case, P.W.1, who is a witness to seizure of ‘Pidha’ M.O-I, did not support the prosecution so also P.Ws.2,3,4 and 5. The attention of the Investigating Officer P.W.12 was drawn to their previous statements before the I.O. Taking note of the tenor of the depositions of the aforementioned prosecution witnesses, learned trial court held that there is no evidence on record relating to commission of offence under Section 304-B IPC and held the accused persons guilty for commission of offence under Section 302 IPC, taking note of the injuries suffered and the evidence of the doctors P.Ws.10 and 11 that the deceased died due to asphyxia and absence of ligature marks which falsified the defence plea of suicidal death. 17. There is evidence on record that all the accused persons and the deceased were residing under one roof. There is no iota of doubt that the death took place while she was in the care and custody of the accused persons and the attempt of accused persons to camouflage the homicidal death of the deceased as suicidal clearly points to their complicity. 18. On consideration of evidence on record, this Court is of the view that the prosecution has been able to establish the foundational facts on account of which the burden of proof as envisaged under Section 106 of the Evidence Act squarely shifts on to the accused, more particularly Appellant No.2-husband and the initial burden having been discharged by the prosecution it was incumbent upon the said Appellant to dispel the weight of the evidence on record to establish his innocence which he has signally failed in the case at CRA No.233 of 1999 Page 7 of 9 hand as to the circumstances under which his wife suffered homicidal death. In this context reference may be made to the judgment of the Apex Court in the case of Wazir Khan vs. State of Uttarakhand reported in (2023) 8 SCC 597 wherein the earlier judgment of the Apex Court in the case of Dharm Das Wadhwani v. The State of Uttar Pradesh, AIR 1975 SC 241 was quoted. Paragraph-13 of the judgment in the case of Dharm Das Wadhwani (supra), relevant in the present context is extracted hereunder: that that have contrary “13. The question then is whether the cumulative effect of the guilt-pointing circumstances in the present case is the the Court can conclude, not such accused may be guilty but that he must be guilty. We must here utter a word of caution about this mental sense of ‘must’ lest it should be confused with exclusion of every in S.S. possibility. We Bobade v. State of Maharashtra AIR 1973 SC 2622, explained that proof beyond reasonable doubt cannot be distorted into a doctrine of acquittal when any delicate or remote doubt flits past a feeble mind. These observations flimsy are warranted by possibilities which are not infrequently set aside by the High Courts weakening the credibility of the Judicature. The rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate evidence, circumstantial or direct……...” frequent acquittals on inferences flowing from 19. In the context of an Indian family the welfare, the security is the primary responsibility of the husband who takes a vow to protect her in the course of “Saptapadi”. CRA No.233 of 1999 Page 8 of 9 In the case at hand, there is evidence on record that few days prior to the incident the husband brought the deceased to her matrimonial home giving assurance to her parents to take care of her. But shockingly within a few days thereafter, the wife of Appellant No.2 died homicidal death which is established on the basis of evidence on record. 20. On a close scrutiny of the evidence on record, this Court finds that the allegations so far as Appellant Nos.3 & 4 are concerned are omnibus in nature and having been labeled only on account of their relationship with Appellant No.2 being his mother and sister respectively. 21. Accordingly, this Court while dismissing the appeal of Appellant No.2, the husband allows the appeal of Appellant Nos.3 and 4, mother-in-law and sister-in-law. 22. 23.
Decision
In the result, the appeal is partly allowed. Since the Appellant No.2 was allowed to be enlarged on bail, he is directed to surrender forthwith to serve out the sentence. Necessary steps in this regard as provided in law shall be taken by the learned Trial Court. Bail bonds of Appellant Nos.3 and 4 stand cancelled. (V. Narasingh) D. Dash, J : I agree. Judge (D. Dash) Judge Signature Not Verified Digitally Signed Signed by: PRADEEP KUMAR SWAIN Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Sep-2024 16:27:16 Orissa High Court, Cuttack Dated the 20th August, 2024/Pradeep CRA No.233 of 1999 Page 9 of 9