The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.90 of 2012 In the matter of an Appeal under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 16th October, 2012 passed by the learned Additional Sessions Judge, Champua, in S.T. Case No.36 of 2012. Kalpana Nauri ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Biswajit Nayak (Advocate as Amicus Curiae) For Respondent - Mr.P.K.Mohanty, Additional Standing Counsel
Legal Reasoning
she reached the Hospital, we find that no other witness has come to depose as to whether the deceased had also disclosed about the happenings on her before them during that period till she arrived in the Hospital. With the above discussed evidence, we too find that when it is the consistent case of the prosecution that the deceased after having been sprinkled with kerosene, had set her ablaze. The Doctor’s report (Ext.7) does not find mention of emission of smell of kerosene from those burn injuries noticed by him. Having gone through the circumstances, as noted by the Trial Court in its judgment at Paragraph-7, when we are not in a position to accept the evidence let in by the prosecution that the deceased had disclosed about the said happenings after P.Ws.2 & 4 came to her rescue when she was found in a burning condition in the courtyard of the house as to who did so; the other circumstances, in our view, are not incriminating as against this accused. So, we are of the considered view that the prosecution has failed to establish the charge against the accused beyond reasonable doubt through clear, cogent and acceptable evidence. 11. In the result, the Appeals is allowed. The judgment of conviction and order of sentence dated 16th October, 2012 passed by the learned Additional Sessions Judge, Champua, in S.T. Case No.36 of 2012 are hereby set aside. JCRLA No.90 of 2012 Page 9 of 10 {{ 10 }} Since the Appellant, namely, Kalpana Nauri is in custody, she be set at liberty forthwith, if her detention is not wanted in connection with any other case. A.C. Behera, J. I Agree. (D. Dash), Judge. (A.C.Behera), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 06-Oct-2023 10:34:26 JCRLA No.90 of 2012 Page 10 of 10
Arguments
CORAM: MR. JUSTICE D.DASH MR. JUSTICE A.C.BEHERA Date of Hearing : 14.09.2023 : Date of Judgment:03.10.2023 D.Dash,J. The Appellant, by filing this Appeal from inside the Jail, has called in question the judgment of conviction and order of sentence dated 16th October, 2012 passed by the learned Additional Sessions Judge, Champua, in S.T. Case No.36 of 2012 arising out of G.R. Case No.153 of 2011 corresponding to JCRLA No.90 of 2012 Page 1 of 10 {{ 2 }} Champua P.S. Case No.67 of 2011 in the Court of the learned Sub- Divisional Judicial Magistrate (S.D.J.M.), Champua. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.500/- (Rupees Five Hundred) in default to undergo simple imprisonment for one (1) month. 2. PROSECUTION CASE:- One Sanjay Sunari (informant-P.W.1) lodged a written report (Ext.1) with the Inspector-In-Charge (IIC) of Champua Police Station (P.S.) stating therein that after the death of his own sister, who is wife of Suresh Nauri, his brother-in-law (Suresh Nauri) had married the accused for the second time and from that wedlock, three children had been born. The daughter, namely, Pinky, born through the wedlock of his sister with the brother-in- law, was residing with the accused and she was always being physically tortured. It was stated that when Pinky, after coming from the field by completing the work there and finishing the cooking, was sleeping in a cot in the house, the accused, sprinkling kerosene upon her, set her ablaze and for that, Pinky came out of the house by shouting. But the accused remained inside the house without making any attempt to save her. Pinky JCRLA No.90 of 2012 Page 2 of 10 {{ 3 }} ultimately died due to such burn injuries. It was stated that before her death, Pinky had disclosed about the happenings to one Manugli Dhibar (P.W.2). The IIC (P.W.10), receiving the written report, treated the same as FIR and registering the case, took up investigation. The Investigating Officer (I.O.-P.W.10), in course of the investigation, examined the informant (P.W.1) and also P.W.2 before whom the deceased, before her death, had declared that she was set ablaze by the accused. He also held inquest over the dead body of the deceased at S.D. Hospital, Champua where Pinky (deceased) had been shifted and prepared the report (Ext.2) in presence of the witnesses. The dead body of Pinky was sent for post mortem examination by issuing necessary requisition. Some incriminating articles were seized from the spot and the I.O. (P.W.10) also prepared the spot map (Ext.11) after vising the spot. Few other co-villagers have been examined in course of investigation and seized incriminating articles were sent for chemical examination through Court. On 16.8.2011, the investigation of the case was handed over to another Sub- Inspector of Police of that P.S., who, on completion of investigation, submitted the Final Form placing the accused person to face the Trial for commission of the offence under section 302 of the IPC. JCRLA No.90 of 2012 Page 3 of 10 {{ 4 }} 3. Learned S.D.J.M., Champua, on receipt of the Final Form, took cognizance of the said offence and after observing the formalities, committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence the accused. 4. The prosecution, in support of its case, has examined in total ten (10) witnesses during Trial. As already stated, P.W.1 is the informant and P.Ws.2 & 4 are the witnesses before whom the deceased (Pinky) was said to have disclosed as to how she received the burn injuries. When P.W.3 is a witness to the inquest, P.Ws.5, 6 & 7 are the witnesses to the seizures. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.9 and the Doctor, who, at the request of the I.O. collected the nail clippings of the accused is P.W.9. The I.O. has finally come to the witness box as P.W.10. 5. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 14. Out of those, the important are, the FIR (Ext.1), the inquest report (Ext.2) and the post mortem report (Ext.7). JCRLA No.90 of 2012 Page 4 of 10 {{ 5 }} 6. The accused has taken the plea of complete denial and false implication. She too has examined herself as D.W.1 in support of said defence. 7. Learned counsel for the Appellant (accused), without disputing that the death of Pinky was on account of burn injuries received by her, submitted that with the available evidence on record, the Trial Court ought not to have held that it was the accused, who had set the deceased ablaze. He further submitted that the declaration, said to have been made by the deceased before the witnesses (P.Ws.2 & 4) as regards the happenings on her, cannot be accepted and the evidence of P.Ws.3 & 4 on that score on proper scrutiny would be found to be unsafe to be relied upon. He further submitted that the Trial Court is not right in pointing out the circumstances and then taking a view that those being cumulatively viewed and taken into account, the irresistible conclusion comes that it is the accused, who is the perpetrator of the crime and none-else. According to him, the circumstances are not at all incriminating and do not point the finger of accusation at the accused and, therefore, they being taken together, do not complete the chain of event leading to an irresistible conclusion that it was the accused, who was the author of the crime, overruling all the hypothesis other than the guilt of the accused cannot arise. JCRLA No.90 of 2012 Page 5 of 10 {{ 6 }} 8. Learned Additional Standing Counsel for the Respondent- State submitted all in favour of the finding of guilt against the accused, as has been returned by the Trial Court. According to him, the deceased, while in house, having been set fire when immediately on arrival, had disclosed about the said incident, which have been proved through the witnesses (P.Ws.2 & 4) examined from the side of the prosecution and when it is also their evidence that the accused, at that time, was in the house and had not taken any step to save the life of the deceased, the Trial Court is absolutely right in convicting the accused. 9. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also gone through the depositions of the witnesses (P.Ws1 to 10) and have perused the documents, which have been admitted in evidence and marked Exts.1 to 14. 10. The death of Pinky is on account of severe burn injuries, has been established through the evidence of the Doctor (P.W.8), who had conducted the autopsy over the dead body of Pinky, the I.O. (P.W.10) and other witnesses, who had seen Pinky with such burn injuries on her person and the reports prepared to that effect. JCRLA No.90 of 2012 Page 6 of 10 {{ 7 }} The question arises as to how Pinky received such burn injuries and who is the culprit. The informant (P.W.1), who is the maternal uncle of the deceased, has stated to have been told about the occurrence by Manguli Dhibar (P.W.2). It is his evidence that by the time he reached the Hospital, his niece was no more alive. It is his evidence that in the Hospital, when he asked Manguli (P.W.2), he told that the accused to have set the deceased to fire. So, what it appears P.W.2 is the star witness for the prosecution. Her evidence is that when she was returning home, she saw Pinky coming out of the house in a state of burning and, therefore, she raised shout when other villagers also arrived there. Her further evidence is that he enquired from Pinky as to how it all happened and Pinky, who was then able to talk, disclosed that the accused set her to fire pouring kerosene when she was sleeping in the bed-room. The evidence of this P.W.2 is also to the effect that the accused was very much present at home at that point of time. This P.W.2, having seen the deceased coming out of the house in a burning condition, when raised hullah, the villagers arrived and it is her evidence that one Manguni Dhibar was very much present among them. It is also stated by this P.W.2 that he had intimated all about the matter to the informant (P.W.1). Manguni Dhibar has been examined as P.W.4. It is his evidence that after JCRLA No.90 of 2012 Page 7 of 10 {{ 8 }} seeing the deceased moving in the courtyard in a burning condition, he had rushed to the place and then he states that the deceased did not tell anything to him as to how she caught fire on her body. Thus, we find that the evidence of P.W.2 that the deceased had disclosed before them that it was the accused, who had set her ablaze is not corroborated by the evidence of Manguni (P.W.4), who according to P.W.2 was very much present by the side of the deceased from the time when P.W.2 had come there. The evidence of P.W.2 is, however, quite acceptable to the extent that she had seen the deceased coming out of the house in a burning condition. So, for that reason, the evidence on record has to be examined as to who was/were the other member/s then in the house when the deceased came out in a burning condition. P.W.2 when says that the accused was present in the house; P.W.4 is not stating so. He has rather stated that the father of the deceased had taken the deceased to the Hospital. The evidence of P.W.4, however, is not clear that the father of the deceased was there inside the house. But, this P.W.4 has stated that one of the brothers of the accused was staying in the house of the accused person. So, even accepting the evidence of P.W.2 that the accused was there in the house at the relevant time, the brother of the accused was also present, as has been stated by her. As per the evidence of P.W.2, the deceased was able to talk till JCRLA No.90 of 2012 Page 8 of 10 {{ 9 }}