MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.323 of 2003 In the matter of an Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 21st November, 2003 passed by the learned Additional Sessions Judge, Bhanjanagar in S.C. No.36 of 2002 (S.C. No.230/2002-GDC). 1. Pravat Kumar Tripathy …. Appellant ---- -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Asok Mohanty, Senior Advocate J. Sahu, H.K. Tripathy, S.P. Nayak, J.P. Patra, M.K. Rout, S.Ray and P.Sahu Advocates) For Respondent - Mr.G.N.Rout, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 03.09.2024 : Date of Judgment : 09.10.2024 D. Dash, J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 21st November, 2003 passed by the learned Additional CRLA No.323 of 2003 Page 1 of 18 Sessions Judge, Bhanjanagar in S.C. No.36 of 2002 (S.C. No.230/2002-GDC) arising out of G.R. Case No.63 of 2001 corresponding to Gangapur P.S. Case No.16 of 2001 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Bhanjanagar. The Appellant (accused) thereunder has been convicted for committing the offence under section 302/201 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, the accused has been sentenced to undergo imprisonment for life for commission of the offence under section 302 of the IPC without imposition of any separate sentence for commission of the offence under section 201 of the IPC. It be stated here that along with this accused, his mother, namely, Anusuya Tripathy had also faced the Trial. The Trial Court, however, has acquitted Anusuya Tripahty, while convicting this accused and sentencing him as aforesaid. 2. PROSECUTION CASE:- The marriage between the accused and Annapurna had taken place on 24.02.1999. It was performed in Pancha Deula Matho situated at Berhampur. It is stated that for the said marriage, cash of Rs.30,000/- and gold ornaments as well as dresses for the bride-groom had been given by the elder sister of Annapurna, namely, Suryamani. The accused was then Page 2 of 18 CRLA No.323 of 2003 working as a Teacher in a High School in the District of Kandhamal. Sometime after the marriage, the accused, his wife and the mother of the accused shifting from their native place Basudevpur went and stayed in a house at Gutungia where the accused was serving in a High School. It is alleged that Annapurna was subjected to torture and harassment by the accused and other family members, which she was intimating from time to time. On 26.01.2001, Annapurna and the accused had come to Berehampur and on 12.02.2001, they returned to Basudevpur. The accused with his mother and wife thereafter returned to the house in the work place on 04.02.2001. Annapurna had intimated this fact to her elder sister over telephone. It is further stated that on 16.02.2001, Annapurna informed her elder sister (Informant- P.W.1) over telephone that she was coming to Berhampur within a day or two. However, suddenly on 17.02.2001 around 5.00 p.m, the accused informed the elder sister of his wife- Annapurna over telephone and called her to village to attend to Annapurna, who was then in a serious condition. The Informant (P.W.1) ascertained from the accused that he was informing from his native Village-Basudevpur and thereafter the Informant (P.W.1), her husband (P.W.2) came to Village- Basudevpur in a tax and arrived there around 8.30 p.m. They CRLA No.323 of 2003 Page 3 of 18 were then informed by the brother of the accused that Annapurna, being dead, her dead body had already been cremated. So, the Informant (P.W.1) entertained grave suspicion in mind that her sister had been killed by the accused. Having gone under depression, the Informant (P.W.1), who happens to be the elder sister of Annapurna (deceased), could not lodge the report on the very same day and she lodged the same after five days of the incident, i.e., on 23.02.2001 with the Officer-in-Charge of Gangapur P.S. On receipt of the above report, the O.I.C (P.W.8) treated
Facts
the same as FIR (Ext.2) and upon registration of the case, took up the investigation. 3. In course of investigation, the I.O. (P.W.8) examined the informant (P.W.1) and went to the Village-Basudevpur where he came to know the dead body of the deceased has been cremated for which he immediately proceeded to the cremation ground and collected some burnt ashes and seized the same under seizure list (Ext.7). The I.O. went to the place of work of the accused and there, he examined some staff of the High School. On 26.06.2001, the I.O. (P.W.8) handed over the charge of the investigation to the Circle Inspector (P.W.9), who, having gone through the papers prepared by them and completing the CRLA No.323 of 2003 Page 4 of 18 formalities, submitted the Final Form placing this accused with Anasuya Tripathy (since acquitted) to face the Trial for commission of the offence under section 304-B/302/498-A/201 of the IPC read with section 4 of Dowry Prohibition Act. 4. Learned S.D.J.M., Bhanjanagar, on receipt of the Final Form, took cognizance of the said offences 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 offences 304-B/302/498-A/201 of the IPC read with section 4 of Dowry Prohibition Act against this accused with his mother (Anusaya Tripathy-since acquitted). 5. In the Trial, the prosecution, in support of its case, has examined in total ten (10) witnesses. As already stated, P.W.1 is the informant, who is the elder sister of the deceased and had lodged the FIR (Ext.2) whereas P.W.2 is her husband. The Doctor, who had declared Annapurna dead when the dead body arrived in the Village-Basudevpur, has come to be examined as P.W.3 whereas P.W.4 is a relation of P.W.1, who had attended the marriage of the accused and Annapurna. The widow mother of the deceased, being examined as P.W.5, the Matha Adhikari in whose presence the marriage had been performed, has been examined as P.W.6. P.W.8 is the CRLA No.323 of 2003 Page 5 of 18 Investigating Officer, who had conducted major part of the investigation whereas P.W.9 is the Circle Inspector of Police, who came to take charge of the investigation at a later stage and submitted the Final Form. One more Doctor, who had attended the deceased on 16.02.2001 and 17.02.2001 has been examined as P.W.10. 6. The prosecution besides leading the evidence by examining the above witnesses has also proved several documents, which have been admitted in evidence and marked Exts.1 to 10. Out of those, the important are the FIR (Ext.2) and also a report lodged with the Deputy Inspector General of Police (Ext.1). Few seizure lists have been admitted in evidence showing seizure of some articles, which according to the I.O. (P.W.8), were incriminating and importantly few prescriptions issued in course of treatment of Annapurna have also been admitted in evidence and marked Exts.9 & 10. 7. The accused has denied his complicity in the matter. He has taken the plea that the deceased was ailing and was regularly taking medicine. So, on 17.02.2001, he had called a Doctor for treatment, who had advised him to take the deceased to Phulbani Hospital, but when then were bringing her to Berhampur, she died on the way and therafter the dead CRLA No.323 of 2003 Page 6 of 18 body, being taken to the village, cremation was done. In support of the above plea, the accused as examined six witnesses as D.Ws.1 to 6. The driver of the Ambulance in which the deceased was being taken to Berhampur for treatment on the relevant date of death, has been examined as D.W.1 when the wife of an immediate neighbour of the accused at Gutungia has been examined as D.W.2 and the local ANM of Gutuniga is D.W.3. A colleague of the accused working as a teacher in the same High School when has been examined as D.W.4, the accused has examined himself with the permission of the Court as D.W.4 and the local Doctor of Basudevpur, who had declared Annapurna dead whereafter cremation was made has also been examined as D.W.6.
Legal Reasoning
establishment of the offence, we are of the view that the finding of the Trial Court against the accused, as has been recorded by the Trial Court, is liable to be set aside. 15. Accordingly, we allow this Appeal and set aside the judgment of conviction and order of sentence dated 21st November, 2003 passed by the learned Additional Sessions Judge, Bhanjanagar in S.C. No.36 of 2002 (S.C. No.230/2002- GDC) CRLA No.323 of 2003 Page 17 of 18 Since the accused, namely, Pravat Kumar Tripathy is on bail, the bail bonds executed by him shall stand cancelled. I agree. (D. Dash) Judge (V. Narasingh) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 09-Oct-2024 14:05:09 CRLA No.323 of 2003 Page 18 of 18
Arguments
8. Mr.Asok Mohanty, learned Senior Counsel for the Appellant (accused) submitted that the prosecution, in the present case, has failed to establish through clear, cogent and acceptable evidence that the death of Annapurna was homicidal or had occurred otherwise than under normal circumstances. He submitted that the evidence on record would rather reveal that her death was on account of cardiac ailments, which she was suffering for quite some time prior to her death and was being treated for the same. In support of the CRLA No.323 of 2003 Page 7 of 18 same, he invited out attention to the evidence of P.Ws.8 and 10 and D.Ws.3, 4 & 6. He submitted that the Trial Court simply holding that the dead body of Annapurna was hurriedly cremated, which has also not been proved through acceptable evidence, has inferred that the death of Annapurna had occurred otherwise than under normal circumstance. He next submitted that there is no evidence on record to conclude that the accused had hurriedly cremated the dead body of Annapurna and when with the available evidence, the charges under section 498-A/304-B of the IPC and section 4 of D.P. Act have failed and the accused has been acquitted of those charges with the available evidence on record, he ought not to have been fastened with the criminal liability of having intentionally caused the death of his wife, namely, Annapurna. He, also taking great pain, took us through the evidence of the Informant (P.W.1) and the FIR (Ext.2) in placing that if at all as per the evidence of P.W.1, the accused had hurriedly cremated the dead body, how it could be that the FIR would be lodged after five days of the death of Annapurna when P.W.1 says about the prior torture etc. He, placing the evidence of P.W.1 and other witnesses, submitted that such explanation given by the P.W.1 for delay in lodging the FIR (Ext.2) is absolutely false. According to him, it is a case where the dead body, having CRLA No.323 of 2003 Page 8 of 18 been cremated with the knowledge of P.W.1 and other family members as also the co-villagers and there being no suspicious feature available at any time during the period, the case has been cooked up later to somehow harass the accused. He submitted that the evidence on record would lead to show that the deceased was suffering from cardiac ailments and that has led to her death, which is later on, being given the colour and flavour of murder. He also submitted that even in the present case, it is held that for a moment that the accused had hurriedly cremated the dead body of the deceased, in absence of any other circumstances emanating from the evidence in implicating the accused with torture and subjection of cruelty upon the deceased, that alone cannot lead to conclude that it was the accused, who had murdered his wife. He, therefore, urged that the judgment of conviction and order of sentence, which are impugned in this Appeal, cannot be sustained. 9. Mr.G.N. Rout, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt against the accused, as has been returned by the Trial court, submitted that even though the charges under section 498- A/304-B of the IPC and section 4 of the D.P. Act have failed with the emergence of the circumstances from the evidence on CRLA No.323 of 2003 Page 9 of 18 record, the Trial Court is right in convicting the accused under section 302 of the IPC. He further submitted that when the accused had given the information to the informant (P.W.1) as regards the serious illness of the deceased and her sufferings and since P.W.1 has responded in saying that she was going, cremation of the dead body before her arrival is a strong incriminating circumstance against the accused. He further submitted that the defence, having taken the specific plea that the deceased was suffering from her ailment and that has been the cause of her death since the accused had failed to establish the fact by leading clear, cogent and acceptable evidence even by preponderance of probability that again stands as a circumstance pointing the finger of guilt at the accused. He thus submitted that the Trial Court, upon just and proper appreciation evidence, did commit no error in holding the accused guilty of commission of the offence under section 302/201 of the IPC. 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses P.Ws.1 to P.W.10 and D.Ws.1 to 6 and have perused the CRLA No.323 of 2003 Page 10 of 18 documents admitted in evidence and marked as Exts.1 to Ext.10. 11. The elder sister of the deceased is the informant, who had lodged the FIR (Ext.2) with the OIC, Gangapur P.S., who being the I.O. of the case, has been examined as P.W.8. The information as regards the illness of the deceased was given by the accused on 17.02.2001 evening. It is stated in the FIR that when the informant (P.W.1) and her husband (P.W.2) arrived in Village-Basudevpur, they were told that Annapurna, having died, the dead body has been cremated. They learnt about this cremation of the dead body on 17.02.2001 around 8.30 p.m., but in spite of the allegation, as levelled in the FIR (Ext.2) that the accused and his family members were torturing the deceased and cruelty was meted out at herm, the FIR (Ext.2) has been lodged on 23.02.2001. It may again be stated here that the case initially stood registered not only against this accused and his mother but also his brother, sister. However, the Final Form was submitted against this accused and his mother, who has been acquitted of all the charges. The explanation in the FIR is that since the informant (P.W.1) was not in good state of mind on that very day, she did not report the matter to police. It is not further explained in the FIR (Ext.2) as to what were the CRLA No.323 of 2003 Page 11 of 18 reasons that stood before the informant (P.W.1) not to report the incident to the police from 18.02.2001 to 22.02.2001. During evidence, P.W.1 has stated that she wanted the son of her sister (deceased) to be taken by her, but the child was not handed over to her and, therefore, she (P.W.1) and her husband (P.W.2) returned from Berhampur and want to Gangapur P.S. It is specifically stated that at 9.30 p.m., after one hour of their arrival in the village, they went to the P.S. and the police officer refused to receive the FIR from them for which they returned to Berhampur and on the next day, they went to the Office of Superintendent of Police at Chhatrapur and they again went on 19.02.2001 and lodged the report with the S.P. Ganjam. In fact, the FIR, which has been admitted in evidence and marked Ext.2 is addressed to the OIC, Gangapur P.S. and that is dated 23.02.2001. The report given to the S.P. Ganjam has not been produced and proved and so also the original report given in the Office of the D.I.G. But one copy of the report given to the D.I.G. has been produced and proved as Ext.1, which has been marked with objection. Thus, with the strained relationship between the accused and his family members on one hand and the deceased and her family members on the other, the explanations given for the delay in lodging the FIR do not at all appear to be plausible. So, for the above, doubt arises in mind CRLA No.323 of 2003 Page 12 of 18 as regards the veracity of the factual narrations in the FIR and what has been deposed to by P.Ws.1 & 2. Furthermore, the FIR, being scribed by one Brajabihari Padhi, he has been examined as P.W.4 and he is the son of the maternal uncle of the mother of P.W.1. His evidence is that after the death of Annapurna, he came to Gangapur P.S. and lodged the FIR as per the instruction of P.W.1. When the FIR has been lodged on 23.02.2001 by putting the specific date thereon, this P.W.4 does not say as to why he had gone to the Police Station and if so, whether being called by P.Ws.1 and 2. P.W.1 appears to be a literate lady signing in oriya in the FIR (Ext.2) and in english in the deposition during trial. Turning the attention to the evidence of P.W.2, who is the husband of the informant (P.W.1) and had accompanied P.W.1 everywhere and in his presence, who too is an retired Veterinary Doctor, the FIR being scribed by P.W.4 again raises the suspicion in mind with regard to the veracity of the same. This, being the situation right from the time of setting the criminal law into motion, the evidence of P.Ws.1 & 2 and others are required to be strictly scrutinized. 12. The dead body, being cremated and the FIR being lodged after five (5), there has been no scope on the part of the I.O. (P.W.8) to ascertain the exact cause of death. When it is said by CRLA No.323 of 2003 Page 13 of 18 the prosecution that the death was not under normal circumstance, the circumstance to support the same is derived from the conduct of the accused that he hurriedly went for cremation of the dead body. The prosecution case that the dead body was cremated in a hurry without being told to P.Ws.1 & 2 is extremely difficult to believe when it is seen that despite such hot haste in cremating the dead body as P.Ws.1 & 2 state, they had not lodge the FIR immediately and for the delay in doing so, the explanation is not acceptable. The prosecution evidence falls from the lips of P.W.5, who was a Doctor, who was then the Medical Officer of Government Homeopathy Dispensary at Gutungia, that he examined the deceased on 16.02.2001 and 17.02.2001 and has issued prescriptions, which have been proved as Exts.9 & 10. As per his evidence, the patient was complaining chest pain. He further states that on 17.02.2001 when he attended the patient (deceased), he found her trembling and complaining pain in her chest and for that, having felt that she was a heart patient, he advised that she be taken to Phulbani Hospital when the accused wanted to take her to Berhampur for convenience and better treatment. He has also stated that he had advised the accused to take the patient by making requisition of the church ambulance and his evidence is also to the effect that at the relevant time in the CRLA No.323 of 2003 Page 14 of 18 PHC of Gutungia, there was no Doctor and it was manned by a Pharmacist. It cannot be straight way held that this P.W.10 has been projected as a witness to support the case of the defence, as then in the absence of a regular Doctor in the CHC finding P.W.10 to be a Doctor attached to the Government Homeopathy Dispensary ordinarily one would like to get the patient examined by him. 13. The I.O. (P.W.8) has stated that D. Narayan Samantaray, Lingaraj Patro and his wife Sabita Patro and other witnesses of the Church have stated that the ambulance had been requisitioned and the deceased Anita @ Annapurna had been removed to Berhampur Hospital, being accompanied by the accused, Lingaraj Patro and another teacher and a nurse and she died on the way. The I.O. has also stated that he prescriptions issued by P.W.10 were seized from the house at Gutungia and he also had seized the outdoor register of the Homeopathy Dispensary in course of investigation on 21.04.2001. It is also his evidence that P.W.1 had not stated before him that in the night of the occurrence, she (P.W.1), with her husband (P.W.2), had been to Gangapur P.S. Sabita Patra, wife of Lingaraj has been examined as D.Ws.2. Her evidence is that the couple was living happily and CRLA No.323 of 2003 Page 15 of 18 she knew nothing about any dispute between them. It is also her evidence that on being asked by P.W.1 over phone, she had informed her that the deceased Annapurna had been taken in the Ambulance to Berhampur for treatment. Relationship between the accused and the deceased is also stated to be cordial by D.W.3. This witness examined from the side of the defence although had been cross-examined by the prosecution. But the facts, as discussed above, have neither been shaken nor any such doubtful feature has been brought out to discard their version all together. Lingaraj Patra, being examined as D.W.4, has also stated in the same vein and that has also been stated by the accused, being examined as D.W.5, D.W.6 is another important witness, who has stated that he had treated Anita @ Annapurna for ten to twelve times after her marriage and was having the heart trouble. This witness has also proved the prescription marked Ext.10 and that is dated 17.02.2001, which finds mention about the patient, having chest pain, difficulty with irregular and pulse rate which is the symptom of cardiac disorder. This part of the evidence has also withstood the cross-examination successfully. CRLA No.323 of 2003 Page 16 of 18 14. From the evidence, as discussed above, we find that the prosecution has failed to prove the fact that the death of Anita @ Annapurna had occurred otherwise then under normal circumstance, rather the defence has been able to show by preponderance of probability not only taking a cue from the evidence of prosecution witnesses but also leading evidence on the score that the death of Anita @ Annapurna was the result of her cardiac ailment. Having held, as above and in view of the evidence, as discussed, since we find the evidence of P.Ws.1 & 2 to be unsafe to be relied upon even to conclude that the accused and his family members had cremated the dead body hurriedly so as to cause disappearance of evidence as to the cause of death, which would have been the evidence for