JUSTICE D. DASH JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GCRLA No.18 of 2002 In the matter of an Appeal under Section 378(1)(3) of the Code of Criminal Procedure and from the Judgment dated the 06.08.1998, passed by the learned Sessions Judge, Dhenkanal-Angul in Sessions Trial Case No.110-D of 1995. ------------------ State of Orissa …. Appellant -versus- Madhia alias Madhaba Behera …. Respondent For Appellant For Respondent : : Mr. S.K. Nayak, AGA Mr. D. Dhar, Advocate CORAM: JUSTICE D. DASH JUSTICE V. NARASINGH DATE OF HEARING :05.03.2024 DATE OF JUDGMENT: 15.04.2024 V. Narasingh, J. 1.
Legal Reasoning
same does not warrant interference by this Court in exercise of its appellate jurisdiction by disturbing the finding of acquittal. 32. Hence, the GCRLA is dismissed. Bail bonds be discharged. (V. Narasingh) Judge D. Dash, J. I agree (D. Dash) Judge Orissa High Court, Cuttack, Dated the, 15th April, 2024/Ayesha Signature Not Verified Digitally Signed Signed by: AYESHA ROUT Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 09-May-2024 18:11:02 GCRLA No.18 of 2002 Page 9 of 9
Arguments
Heard Mr. S.K. Nayak, learned AGA for the Appellant and Mr. D. Dhar, learned counsel for the Respondent. 2. Assailing the judgment of acquittal passed by the learned Sessions Judge, Dhenkanal-Angul, Dhenkanal dated 06.08.1998 in Sessions Trial No.110-D of 1995 acquitting the GCRLA No.18 of 2002 Page 1 of 9 Respondent who was charged under Section 302 of Indian Penal Code (hereinafter referred to as IPC) for having intentionally caused the death of one Gila Behera (hereinafter referred to as the deceased), the present appeal has been preferred by the State. 3. Briefly stated the case of the Prosecution was that the deceased was staying with her mother-Manas Bewa (P.W.1) in the village Paikpurunakote and the accused-Respondent was also a resident of the said village. 4. It is asserted by the Prosecution that the mother of the deceased came to know that the deceased was pregnant because of her relationship with the Respondent. And, on being questioned, as the Respondent disowned the pregnancy, the matter was placed before the village Bhadraloks and on their persuasion the accused took the deceased to his house and lived with her as his wife. 5. It is alleged that while the deceased was residing in the house of the accused, she was found dead in the morning of 03.05.1995. 6. The mother of the deceased-P.W.1 informed the Gram Rakhi-Sudarsan Naik and on the report of the Gram Rakhi, Balimi P.S. U.D. Case No.1/95 was registered and investigation was taken up by the O.I.C., Balimi P.S. (P.W.7) and during the course of investigation inquest was conducted and the dead body was sent for post mortem examination and on receipt of the post mortem report, on 20.05.1995 FIR was lodged and Balimi P.S. Case No.14/95 under Section 302 of IPC was instituted and P.W.1-the mother of the deceased was the informant and on the basis of her instruction, the FIR was GCRLA No.18 of 2002 Page 2 of 9 written. On registration of such case, the I.O. took up investigation and on completion, he submitted the charge sheet against the Respondent under Section 302 of IPC for causing the death of Gila Behera. 7. To drive home the charge, the Prosecution examined seven witnesses. P.W.1-Manasa Bewa is the mother of the deceased and informant. P.W.2-Jhunu Behera is the wife of the accused- Respondent and stated to be the sole eyewitness. (It is apt to note here that she did not support the Prosecution). P.W.3-Dasarathi Rath is the Sarpanch. P.W.4-Laxmidhar Roul, P.W.5-Akura Sahu and P.W.6- Madhusudan Sahu are the co-villagers. P.W.7 is the I.O. 8. Several documents were exhibited by the Prosecution as Exts.1 to 9. Of which Ext.9, the FIR, Ext.4, post mortem examination report and Ext.5, the opinion of the Doctor on the query made by the I.O. as to injuries are significant. 9. The defence plea was one of denial and false implication. However, no evidence was adduced on behalf of the accused. In his statement under Section 313 of Cr.P.C. the accused-Respondent specifically stated that the deceased did not stay in his house for four days and that the deceased did not die in his house. 10. At the outset, it is apt to note that in the case at hand the Medical Officer who conducted the post mortem examination has not been cited as a witness. However, the post GCRLA No.18 of 2002 Page 3 of 9 mortem report and the opinion of the Medical Officer in terms of the query by the I.O. have been marked on admission under Section 294 of Cr.P.C., 1973 as Exts.4 & 5 respectively. 11. The Medical Officer has opined in Ext.4 that the death of the deceased was due to asphyxia by strangulation and Ext.5 indicates that such strangulation was manual. On the basis of the same, it is thus not in dispute that the death of Gila Behera was homicidal. 12. It is clear that the case at hand is based on circumstantial evidence and the circumstance which according to the Prosecution formed the links in the chain of accusation run thus:- “(i) the accused was the author of the pregnancy of the deceased, (ii) the deceased was living in the house of the accused as his wife for several days prior to her death, (iii) the deadbody of the deceased was recovered from the house of the accused, and (iv) as per the medical opinion the death of the deceased could be possible by manual strangulation.” 13. It is trite law that in a case which is based on circumstantial evidence, in order to establish the guilt of the accused the evidence on record must be of the kind which would exclude every hypothesis regarding the innocence of the accused. 14. P.W.1 in the case at hand is the mother of the deceased and it is her version that after the death of her husband, the deceased was staying with her in the same village so also the accused-respondent. P.W.1 could come to know that her GCRLA No.18 of 2002 Page 4 of 9 daughter has conceived out of her relationship with the accused- Respondent and when accosted the Respondent-accused refused to own up responsibility for which a village meeting was called and in the said meeting, on the persuasion of Bhadraloks the accused owned up his relationship with the deceased and agreed to take the deceased as his wife and both started living as husband and wife in the house of the accused. 15. Building on this foundation, the Prosecution has tried to establish that since allegedly the dead body of the deceased was found in the house of the accused, he is the author of the crime. 16. As rightly noted by the learned Trial Court that P.W.1 is an highly interested witness, being the mother of the deceased and her version has to be evaluated with caution. 17. It is apt to note that the Prosecution had cited P.W.2- wife of the Respondent as the sole eye witness and she resiled. 18. P.Ws.3 to 5 are the co-villagers. P.W.3 is particularly a vital witness since he was the Sarpanch of the Paikpurunakote Panchayat. Neither he nor the other two co-villagers lend any support to the version of P.W.1 that the Respondent owned up his relationship with the deceased in the village meeting and agreed to take the deceased as his wife and most importantly they started living together. 19. Another circumstance which was cited as an important link to allege that the Respondent is the author of the crime is the discovery of the dead body allegedly from the house of the accused-Respondent. 20. From the evidence of P.W.3-the Sarpanch, it is borne out that the house from which the dead body allegedly of the GCRLA No.18 of 2002 Page 5 of 9 deceased was recovered was an Indira Abash house and the same was under construction, though allotted to the accused- Respondent. And the house had no door and window panes. It has also been brought out in the cross-examination of P.W.4-co-villager that the said house had no door or windows though the same was allotted in the name of the accused. 21. As such, there is no material on record to indicate that the accused-Respondent was living in that house. In fact P.W.4 in cross-examination has stated thus:- “As the said house was not complete and was in the process of construction the accused was living in a thatched house adjacent to that place.” 22. The other factor which has been pressed into service during trial is the evidence of P.W.6-Madhusudan Sahu that there was a meeting in which he was present and in that meeting decision of the Bhadraloks was reduced into writing in the form of a chuktinama marked as Ext.3/1 stipulating that the accused would accept the deceased as his wife. 23. The learned Trial Court examined the said document and also evaluated the evidence of P.Ws.4 & 6 in this regard. The relevant extract of evidence of P.Ws.4 & 6 are culled out hereunder for convenience of ready reference. P.W.4 xxx xxx xxx “As the accused did not admit his guilt in the meeting, the said decision was reduced into writing in the form of a ‘chuktinama’ and I had given my signature on it. I do not know the contents of that ‘chuktinama’ or decision, but Ext.3 is my signature.” P.W.6 GCRLA No.18 of 2002 Page 6 of 9 “On 23.4.95 a ‘chuktinama’ was prepared in the village meeting in which I was present. In that meeting it was decided that the accused would accept Gilla as his wife. Ext. 3/1 is the ‘chuktinama’ Ext. 3/2 is my signature.” 24. On close examination, this Court also finds, as rightly observed by the learned Trial court that Ext.3/1 is a document allegedly executed by the accused relating to his fault and not a decision of the Bhadraloks of the village, as being painted by P.W.2-the mother of the deceased. And, there is patent contradiction relating to the contents of Ext.3/1 on scrutiny of evidence of P.Ws.4 & 6. 25. There is no material on record as to who scribed this document since admittedly the accused is an illiterate person and there is evidence on record to show that the contents of the Chuktinama (Ext.3/1) was never read over and explained to him. Rightly no reliance was placed on the same by the learned Trial Court. 26. Hence, on the basis of such evidence on record, the learned Trial Court came to a finding that it cannot be held that the accused-Respondent was the author of the pregnancy of the deceased nor that the deceased was living in the house of the accused as his wife prior to her death. 26-A. It is also curious to note from the post mortem report that no attempt has been made to establish the pregnancy of the deceased. As already discussed in the preceding paragraph, there is no conclusive evidence that the dead body of the deceased was recovered from the house of the accused rather there is material to indicate that the accused was not staying in the house from which the dead body was recovered. GCRLA No.18 of 2002 Page 7 of 9 27. Learned counsel for the Appellant-State submitted with vehemence that appreciation of evidence by the learned Trial Court is perverse and the case is based on circumstantial evidence and all the links completing the chain unerringly point to the guilt of the accused-Respondent and as such the impugned judgment of acquittal is liable to be set aside. 28. Learned counsel for the Respondent-accused on the other hand submits that the law relating to evaluation of evidence in a case registered on account of circumstantial evidence is settled by the celebrated judgment in the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622 and it is his further submission that the learned Trial Court applying the principles of “Panchasheel” as in the said judgment on a detailed analysis of evidence of record has acquitted the Respondent. 29. Hence, the case at hand does not merit interference keeping in view the principles enunciated by the Apex Court in the case of Mrinal Das & Others vs. the State of Tripura, 2011 (9) SCC 479 while evaluating a judgment of acquittal. 30. This Court carefully examined the testimony of the Prosecution witnesses and the documents relied upon and heard the counsels at length in support of their respective contentions. 31. On a conspectus of evidence on record which has been adverted to in the preceding paragraphs, keeping in view the time tested doctrine of evaluating the evidence while scrutinizing the judgment of acquittal, this Court is not persuaded to hold that the judgment of acquittal as recorded by the learned Trial Court is perverse, rather the same is based on cogent and coherent analysis of evidence on record. As such the GCRLA No.18 of 2002 Page 8 of 9