The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.175 of 2009 ----------- Chandramani Naik @ Budha ……. Appellant -Versus- State of Orissa ……. Respondent ______________________________________________________________ For the Appellant : Mr. Alekh Sahu, Advocate For the Respondent : Mr. J. Katikia, Addl. Government Advocate ______________________________________________________________ CORAM: THE HONOURABLE SHRI JUSTICE S. TALAPATRA THE HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 15th May, 2023 S. Talapatra, J. This is an appeal by the convict (hereinafter referred to as the appellant) from the judgment and order of conviction and sentence dated 20.08.2008 as delivered in Sessions Case No.1/2007 by the Second Additional Sessions Judge, Berhampur. 2. The appellant was charged under Sections-498-A/302/304-B of the IPC along with Section-4 of the Dowry Prohibition Act (in short D.P. Act). 2 3. Briefly stated the prosecution case is that Bishnupriya Naik was married to the appellant in the year 2001 and they lived at Gopalpur. Out of their wedlock, one female child is born. On 18.06.2006, few persons namely Shyama Naik, Durjya Naik and Murali Naik came to the informant’s house. The father of the deceased was informed that his daughter, Bishnupriya had been admitted in M.K.C.G. Medical, Berhampur. They had informed Purushottam Naik, P.W.1, that his daughter, Bishnupriya had been admitted in the hospital with severe burn injuries on her person. Bishnupriya was undergoing treatment in the Female Surgical Word No.1 of the aforementioned hospital. 4. According to P.W.1, she had disclosed that her husband, the appellant, returned home at about 1 0’ clock in the previous night and doused Kerosene and set her on fire. Thus, Bishnupriya Naik got burn injuries all over her body. 5. The information as regards the said incident was lodged at the Police Station by P.W.1. On the basis of the said information, the Police registered Gopalpur P.S. Case No.103 of 2006 under Section-498-A/307 of the IPC read with Section-4 of the D.P. Act. 6. During the course of the treatment, Bishnupriya breathed her last on 24.06.2006. On her death, the offences punishable under Sections- 3 302/304-B of the IPC were added for investigation with due information to the concerned Court. 7. On completion of the investigation, the Police filed the charge sheet against the appellant under Sections-302/304-B/498-A of the IPC read with Section-4 of the D.P. Act. 8. In due course, the charge was framed under Sections-302/304- B/498-A of the IPC read with Section-4 of the D.P. Act, to which the appellant pleaded not guilty and claimed to be tried in accordance with law. 9. It has been stated in the charge that on 29.01.2001 and 17/ 18.06.2006 at Outroadsahi, Gopalpur, the appellant, being the husband of the deceased, subjected her to cruelty both mental and physical to bring more dowry in consideration of his marriage with her, which act constitutes the offence punishable under Section 498-A of the IPC. The appellant was further charged to the effect that on 17/18.06.2006, at Outroadsahi, Gopalpur, the appellant committed murder by intentionally causing the death of Bishnupriya Naik. Hence, the appellant was liable to be punished under Section-302 of the IPC. It has been further stated in the charge that for the said occurrence, the appellant was liable to be charged under Section-304-B of the IPC, as Bishnupriya Naik (the 4 deceased) died of burn injuries within seven years of her marriage with the appellant and soon before her death, the appellant had treated her with cruelty demanding more dowry. For demand of dowry from Bishnupriya Naik (the deceased) and her parents in consideration of their marriage, the appellant was also charged under Section-4 of the D.P. Act. 10. In support of the charge, as noted above, the prosecution has adduced nine witnesses including the doctor, who conducted the post mortem examination over the dead body of Bishnupriya Naik, and the informant (P.W.1), the father of the deceased. 11. That apart, the prosecution had adduced 15 documentary evidence (Ext.1 to Ext.15). After the appellant was examined under Section-313 (1) (b) of the Cr.P.C., the defence was allowed to lead their evidence. Two witnesses DWs.1 & 2 were examined by the defence and two documentary evidence (Ext.A & Ext.B) were admitted in the records of evidence. 12. On appreciation of the evidence on records, the Addl. Sessions Judge, Berhampur has observed clearly that the appellant is not found guilty under Sections- 498-A/304-B of the IPC and under Section-4 of 5 the D.P. Act and consequently, the appellant was acquitted from those charges. But he was found guilty of committing the offence punishable under Section-302 of the IPC and accordingly, the appellant has been convicted and he has been handed down the sentence to undergo imprisonment for life and to pay fine of Rs.2,000/- (Rupees two thousand) with default imprisonment. The findings leading to the conviction are under challenge in this appeal. The consequential sentence as afore-noted as well been questioned. 13. At the time of the examination of the appellant under Section-313 (1) (b) of the Cr.P.C., the appellant has reiterated his plea of innocence
Legal Reasoning
by completely denying that he did set fire on the person of the deceased. That apart, he has sought to explain his conduct by stating that at the time of the occurrence, he was outside the home, but after getting information, he rushed to his home and tried to extinguish the fire. He had also received burns from the same occurrence. That apart, he has stated that since his marriage was a love marriage, he had no relation with his in-laws. He has been implicated falsely.
Legal Reasoning
14. Mr. Alekh Sahu, learned counsel, having appeared for the appellant, has stated that the Addl. Sessions Judge, Berhampur, while returning the finding of conviction, has failed to appreciate the evidence 6 in its entirety. The death of Bishnupriya Naik according to Mr. Sahu, learned counsel cannot be attributed, by any means, to the appellant. The death resulted from an accidental fire. But that aspect of the evidence was totally ignored. According to Mr. Sahu, learned counsel, the evidence of P.W.4 has been accepted without exercising the caution as required for reliance on the testimony of the child witness. That apart, the testimony of P.W.4 is not congruous with the testimonies of P.Ws.1 & 3. But that aspect was not considered. As such, the findings based on the testimonies of P.Ws.1, 3 & 4 have become susceptible and cannot be affirmed. 15. Mr. Sahu, learned counsel has high-lighted that P.W.1 (the father of the deceased) has stated that after quarrel, the deceased was set on fire. Even the “element of sudden quarrel” has not been considered by the trial judge. Mr. Sahu, learned counsel has contended that the evidence of D.Ws.1 & 2 has been totally ignored whereas D.W.1 has categorically stated that she recorded the dying declaration of the deceased (Ext.A) after the fitness certificate was issued by Dr. T.K. Rout. During recording of the dying declaration, two witnesses namely Purushottam Naik (P.W.1) and Bhabani Shankar Naik (P.W.3) were present. The material part of the cross-examination has been ignored. In 7 the cross-examination, the Executive Magistrate (P.W.1) has clearly stated as follows: “The injured/patient after answering her name and her husband’s name on my questions could not be able to answer my further questions and thereafter, she was not in a fit state to answer my questions.” D.W.1 had also conducted the inquest on 24.06.2006 and the inquest report (Ext.2) has been authored by her. D.W.2 is the appellant. He has testified in the trial and stated that after marriage, he led the conjugal life with Bishnupriya at Gopalpur. His mother and brother were living in a separate house. After marriage, neither the informant nor his family members visited his house. He has asserted that there is no Dandasi Kular Society in their caste. The said witness identified the Vice President of the society as a person close to P.W.1. 16. While stating about the presence of P.W.4, D.W.2 has stated that P.W.4 is the younger brother of the deceased. He or any other family member of the informant did not come to stay with them on the occasion of Amabasya Jugada. On 17.06.2006, at about 9.30 to 10 pm, when the appellant was in the market to bring curry, at that time, he heard that the fire had broken out in his house. So he had rushed back and entered inside the house. He saw his wife and daughter had been engulfed by fire. He extinguished the fire and rescued both of them. He 8 had also sustained burn injuries on his person. He had taken his wife and daughter to Gopalpur hospital for treatment. After the first-aid, the doctor referred the deceased to the M.K.C.G. Medical College, Berhampur. The appellant got her admitted there. He identified the bed head ticket (Ext.A) and the signature thereon as Ext.B/1. 17. D.W.2 (the appellant) had sent information to the family of P.W.1 through his brother namely Shyama Naik and Murali Naik. The informant (P.W.1) came to the hospital. The appellant has categorically testified that he had never poured kerosene on the deceased or set fire, as alleged. While she was cooking in the house, she was caught fire. But taking advantage of that unfortunate incident, P.W.1 had lodged a false complaint against him. 18. What has been stated by D.W.2 is material and hence, the entire cross-examination is reproduced here under: Cross-Examination by the Prosecution “4. On 17.6.2006 night I left home for market at about 9 P.M. for bringing curry. My daughter was in the “Cloth Doli” which was also gutted by fire. It is not a fact that some days after the marriage, the informant’s family members started visiting my house and regularly brought Amabasya Jugada to my house. 17.6.06 was the day of Sabitri Amabasya, but Montu had not come to my house with “Amavasya Jugado”. It is not a fact that in the said night I poured kerosene on Bishnupriya and set fire to her and Mantu had seen the same. It is not a fact that shortly 9 after the marriage, I started assaulting Bishnupriya in drunken state by demanding dowry, and finally caused her death by fire. It is not a fact that I have got no inimical terms with Pana Naik (P.W.7) but I am falsely saying so as he stated the truth in court. It is not a fact that Bishnupriya was not gutted with fire while cooking and I have not rescued her, but I am falsely deposing so in order to save myself from this case.” 19. Mr. Sahu, learned counsel has stated that what P.W.1, Purushottam Naik has stated in the trial cannot be believed, as he had weaved a story for implicating the appellant and that is apparent on the face of the record. Mr. Sahu, learned counsel has stated that P.W.4 is a planted witness, who is the son of P.W.1 and brother of the deceased. According to P.W.4, the appellant poured kerosene oil on the deceased’s person and set fire. 20. Finally the learned counsel for the appellant has stated that the testimonies of P.Ws.1, 3 & 4 were required to be scrutinized with greater caution, as all of them have interest in securing conviction of the appellant. But the trial judge has failed to exercise that caution. 21. Mr. J. Katikia, learned Addl. Government Advocate has, in order to repel the submission of the learned counsel for the appellant, stated that there is no reason to disbelieve P.Ws. 1, 3 & 4 merely because they are related to the deceased. Mr. Katikia, learned Addl. Government Advocate has contended that there had been no cross-examination of 10 P.Ws.1 and 4 from the defence. P.W.1 visited the hospital on 18.06.2006 whereas the incident took place on 17.06.2006. P.W.3 had visited the hospital on 18.06.2006 at night (11 pm). The condition of the deceased might not be the same all the time. When D.W.1, the Executive Magistrate visited the deceased for recording her dying declaration as per the requisition, she could not record the same, as the deceased was deteriorating and failing to make statement. 22. Mr. Katikia, learned Addl. Government Advocate has submitted that P.W.4 is the eye witness of the culpable occurrence. He has testified in the trial. He has stated in detail how the appellant behaved on that night. The appellant had asked the deceased to hang herself, else he would kill her by pouring kerosene after returning home. P.W.4 has testified inter alia as follows: “Hearing the shout, I got up and saw the accused pouring kerosene on my deceased sister from a plastic jerricane, set fire on her body. When fire gutted to the body of my deceased sister the accused holding the child went outside the house. At that time, fire also gutted to both the accused and the child. I also raised shout having went outside the house. On my shout, some people came and extinguished the fire, and my deceased sister was taken to M.K.C.G. Medical College Hospital for treatment. In the night I remained with the child in a neighbouring house of the accused. In the morning my father reached me there. Hence, I narrated the incident to him and with him I came back to Berhampur along with the child of the deceased. At 11 Berhampur, I narrated the incident to my mother and brothers.” 23. Mr. Katikia, learned Addl. Government Advocate appearing for the State has pointed out that P.W.4 has made a specific statement which reads as follows: “When my deceased sister was alive on 18.06.2006 Police interrogated me at 12 noon. I went to see my deceased sister while undergoing treatment. She was then able to talk, but I did not talk with her.” 24. Mr. Katikia, learned Addl. Government Advocate has made a reference to the statement of P.W.5. P.W.5 is the doctor, who had examined the appellant and their daughter namely Manisha, who was aged about 1-1/2 years on 19.06.2006 at Gopalpur PHC. He had also examined the appellant on 25.06.2006 on the Police requisition. 25. From the testimony of P.W.5, it surfaces that the child suffered one deep burn injury of size 11 x 10 cm over lumber region of the back. P.W.5 has opined that the said injury might have been caused by fire. According to P.W.5, the appellant suffered the following burn injuries: (i) Burn injury of size 13 x 8 cm over right deltoid region extending to arm. (ii) Burn injury of size 8 x 9 cm over left abdominal wall. (iii) Burn injury of size 11 x 6 cm over posterior aspect of left thigh extending to buttock. 12 All those injuries were simple in nature and might have been caused by fire. The wounds were healed by treatment by the time when P.W.5 had examined the appellant. 26. Mr. Katikia, learned Addl. Government Advocate has made a specific reference to the opinion of P.W.5, which he made in the course of cross-examination, as carried out by the defence. 27. P.W.5 has categorically stated in the cross-examination as follows: “The injuries under Ext.8 can be caused if one consciously went to rescue a burning person.” 28. Mr. Katakia learned Addl. Government Advocate has submitted that if the evidence is read in its entirety, it would evince that none but the appellant had set fire on the deceased. He has also referred to the observation of P.W.2, Dr. Kiran Kumar Patnaik, who conducted the Post Mortem examination on requisition of the Police over the dead body of Bishnupriya Naik. 29. During the post-mortem examination, P.W.2 noticed that the body suffered 80% burn injury sparing a strip of skin encircling the waist. Both the gluteal regions, the back portion of the head corresponding the occipital region and both the soles were burnt. Some injuries were healing. 30. P.W.2 has given the following opinion in the trial: 13 “All the burn injuries mentioned above were antemortem in nature and could have been caused by dry heat. The death of the deceased was due to shock as a result of extensive burn injuries. The time since death of the deceased was within about 6 to 12 hours from the time of post mortem. Accordingly, having prepared the post mortem report submitted in the Office of the FM&T Department for reference of the Police. Ext.6 is my said Post Mortem report wherein my signature is Ext.6/1 and the signature of Dr. Priyadarshi is Ext.6/2 with which I am acquainted with.” But in the cross-examination, as carried out by the defence, P.W.2 has made a significant statement which is as under: “Considering the pattern, distribution and extent of the burn injuries, the possibility of accidental fire when the deceased was wearing nylon saree, is a remote possibility. The injuries found on the body of the deceased cannot possible be caused due to house burning when she slept inside the same.” 31. Mr. Katikia, learned Addl. Government Advocate, having relied or the opinion of P.W.2 in particular, has stated that the dying declarations as made by the deceased to P.Ws. 1 & 3 have been rightly relied on by the trial judge and there is no infirmity in accepting those dying declarations. Hence, he urged this Court to confirm the said judgment. 32. For the purpose of appreciation of the rival contentions of the counsel appearing for the appellant and the State, we have scrutinized the records and found there is no dispute about the documentary evidence. 14 33. In nutshell, the appellant’s case hinges on the following grounds: (i) Presence of P.W.4 cannot be believed for making incoherent statements. (ii) Dying declaration made by the deceased to P.Ws. 1 & 3 should not be believed by this Court as those witnesses had their interest to see that the appellant was convicted. (iii) The testimonies of P.Ws. 1 & 3 have not been cautiously scrutinized. (iv) The opinion given by the post mortem doctor (P.W.2) on consideration of the pattern is not part of the post mortem examination report and as such, the said opinion should be discarded. 34. For purpose of further appreciation, we are persuaded to survey the evidence briefly, having regard to the pleas, as raised by the counsel for the parties. 35. P.W.1, the father of the deceased has stated that he came to know of the occurrence from the elder brother of the appellant, his uncle and one cousin brother. They only informed him that Bishnupriya had been hospitalized at Berhampur with burn injuries. Thereafter, he reached the hospital. On his query, the deceased told him that after a quarrel with the deceased, the appellant poured kerosene on her person and set her on fire. Thus she got the burn injuries. P.W.1 has also stated that PW4 also told him that the appellant poured kerosene on the deceased and set 15 her on fire. Thereafter, he instructed his son (P.W.3) to lodge the information in Gopalpur Police Station under his signature. According to him, after three years of their marriage, the appellant and his daughter visited them. Earlier, they were reluctant to accept them in the society. 36. In the cross-examination, he has denied the story of accidental fire or receiving burn injuries by the appellant while he had attempted to extinguish the fire. He has denied the suggestion of implicating the appellant falsely. 37. The evidence of P.W.2, the post mortem doctor has been elaborately discussed while taking note of submission of Mr. Katikia, learned Addl. Government Advocate and hence, is not repeated. 38. P.W.3, Bhabani Shankar Naik, the brother of the deceased testified in the trial on 18.06.2006 that he came to the M.K.C.G. Medical College & Hospital, Berhampur to see his sister, who was being treated there for burn injuries. He has stated that on his query, his sister (the deceased) disclosed that “in the night of incident, her husband having come to the house taking liquor, set fire on her person by pouring kerosene”. He was also informed by his younger brother (P.W.4) that the appellant having come to the house after taking liquor, quarreled with the deceased and put kerosene on her body and set her on 16 fire. He has made a significant statement during the cross-examination, carried out by the defence. The said statement reads as follows: “From 18th to 24th June, I was all along with my deceased sister in the hospital and talked with her. During the said period the accused Chandramani was also near her. On the date of presentation of Ext.1 and on the date of death of the deceased, police examined me in this case. On 19.6.2006 morning police examined me in the hospital regarding the case matter. At 11 pm of 18.6.2006 we reached at Gopalpur Police Station.” He has denied the suggestion that he did not state to the Police that the appellant came drunk at home and quarreled with the deceased and later on, set her on fire. He has denied the suggestion that P.W.4 did not visit the house of the appellant or did not stay with them till the time of occurrence. He has denied the suggestion that the fire was an accidental fire. 39. The evidence of P.W.4 has been discussed elaborately while recording the submission of learned counsel for the appellant and hence, is not being repeated. 40. The testimony of P.W.5 has already been discussed and noted elaborately. 41. P.W.6 is a Junior Clerk of the M.K.C.G. Medical College & Hospital. He is the seizure witness of the Medical records under Ext.9. 17 42. P.W.7 was the Vice President of so-called Dandasi Caste of Ganjam district. He has testified in the trial that he went to Gopalpur and requested the appellant to marry Bishnupriya, as he had taken her away from her house and they were married. Most of his statement in the trial is irrelevant as it does not have any bearing on commission of murder. He has denied the suggestion that the fire was accidental in nature, even though he was not present at the time of occurrence. Hence, his testimony has to be evaluated, as the statement of a hearsay witness. 43. P.W.8, Sarat Chandra Mohapatra, a Police Constable was working in the Gopalpur Police Station on the day of death of the deceased. After the inquest was carried out by D.W.1, P.W.8 sent the dead body to the F.M.T. Department under the dead body challan (Ext.3). 44. P.W.9, S. Sabitri, was working as a Woman Police Sub-Inspector at Gopalpur Police Station on 18.06.2006. She had stated that the Officer In-Charge of the said Police Station had registered the Police case, being P.S. Case No.103 of 2006 for the offences under Sections- 498-A/307 of the IPC & Section-4 of the D.P. Act, after he had received the information from P.W.1. 18 45. P.W.9 was entrusted with the investigation. In the trial, she has given a brief narrative of how she had conducted the investigation. On completion of the investigation, P.W.9 submitted the charge sheet. She was thoroughly cross-examined by the defence. During the cross- examination, she has stated that the deceased was primarily treated at Gopalpur Government Hospital and was referred to the M.K.C.G. Medical College & Hospital, Berhampur for better treatment. She has admitted that the signatures of witnesses available during the inquest were not taken. P.W.9 has made the following statement during the cross- examination: “I recorded the statement of P.W.4. He did state before me that they slept in the house half-closing the door and that the accused went away with the child to outside the house after fire gutted to the deceased and that both the accused and his child sustained burn injuries and that on his shout outside the house, people came.” She has also stated during the cross-examination as follows: “I recorded the statement of P.W.7. He did not state before me that the accused taken away the deceased Bishnupriya from her house to Gopalpur and that the accused was assaulting Bishnupriya demanding more dowry.” The said statement has lost relevance, as the appellant has been acquitted from the charges under Sections-498-A & 304-B of the IPC and there is no challenge against the acquittal under those charges. 19 46. Before we proceed further, we may look at the contents of the First Information Report, Ext.1, as lodged by P.W.1. The informant, P.W.1 has disclosed the occurrence that took place on 17.06.2006. He has also disclosed that his daughter was married to the appellant. A female child was born in their wedlock. On 18.06.2006, at about 4 pm, Shyama Naik, Durjya Naik and Murali Naik of Gopalpur Outroadsahi informed him that his daughter had been admitted in the hospital with burn injuries. Having received that information, he had rushed to the M.K.C.G. Medical College & Hospital, Berhampur and he found his daughter admitted in the Medical F.S.W.-1, Bed No.250. She was being treated for her burn injuries. 47. According to P.W.1, the entire body of the deceased was burnt. Having asked, how she had received the burn injuries, she stated that the appellant being drunk, returned home, picked up quarrel with her and poured kerosene oil on her body, and set her on fire. She had also stated that P.W.1 might ask the deceased’s younger brother, Montu, P.W.4 for further details. According to the informant, the appellant is habituated to drink. Before the said incident also, the deceased was subjected to torture by the appellant on demand of money. Sometimes, he had also given money to the appellant. At the time of occurrence, his younger 20 son Montu, aged about 10 years at that time was present in the place of occurrence, as he had visited his sister’s house with Amabasya Jugada. He had witnessed the entire occurrence. His elder son Bhabani Shankar Naik, P.W.3, having received the information from him, visited the hospital and at his instance, he lodged the information at the Police Station. According to him, to kill his daughter, the appellant had set fire on her person. 48. We consider it apposite to read the prosecution evidence along side the evidence led by the defence. 49. D.W.2 is the appellant. He has given explanation how the occurrence took place. According to him, their marriage was never recognized by the family of the deceased and they did not visit the informant’s house at any point of time. He has categorically stated as follows: “On 17.06.2006 night at about 9.30 to 10 pm while I was in market to bring curry, at that time I heard that fire has been set in my house. So I rushed to my house and found that fire was burning inside my house and my wife and daughter have been caught fire. I extinguished the fire and rescued both of them and during the process, I sustained burn injuries on my person i.e. left side belly, left side thigh and left side arm. Thereafter, I took my wife and daughter to Gopalpur hospital for treatment. After first-aid, the doctor referred my wife to M.K.C.G. Medical College & Hospital, Berhampur and I got her admitted there in Bed No.250 and my signature was taken on the bed head ticket. The said bed 21 head ticket is marked as Ext.B in which Ext.B/1 is my signature. I sent information of the above to the informant through my brother Syam Naik and Murali Naik and accordingly, the informant came to the hospital. But I have never poured kerosene on the deceased and set fire as alleged against me. The fire was caught to her while she was cooking in the house, but her father has falsely lodged F.I.R. against me as I married his daughter by love.” He has denied a suggestion as regards his involvement on setting fire on Bishnupriya [the deceased]. 50. The evidence of D.W.1 has been discussed. She came to record the dying declaration. Even though the Fitness Certificate was issued by Dr. T.K. Rout, she has stated that the deceased could not make any statement, as she was unable to make any statement. P.W.1 is the Executive Magistrate, who had also conducted the inquest over the dead body of the deceased. 51. Having appreciated the evidence, what has attracted our attention is that no witness has been examined by the prosecution from the neighbourhood of the appellant. But it has been asserted by P.W.4 that he shouted and the people from the neighbourhood gathered there and they extinguished the fire. P.W.4 has stated that he took shelter in a neighbourhood house, but he did not disclose the name of the house owner. Even the investigating officer did not take any care to locate the house owner to 22 show that P.W.4 had taken shelter at his house during the night of occurrence. But these are the defects of investigation. Those cannot be allowed to be foisted against the substantive evidence. 52. True it is that the opinion of the post mortem doctor, P.W.2 regarding whether the victim fell to the accidental fire or she was set in fire by pouring kerosene, is very definite in nature, as according to him, from the study of the patterns of the injury, injuries do not appear to have caused from accidental fire. There was no effective cross- examination on that aspect of the matter by the defence. 53. We have not come across any material brought on record in order to prove that the kerosene oil was used for setting on fire. However, the oral dying declaration has been relied by the trial judge to accept the fact that kerosene oil was used to set the deceased on fire. 54. So far as non-examination of persons from the neighbourhood is concerned, the trial judge has observed that many persons of the village came to the spot on hearing the sound only, but none of them has been stated to be an eye witness to what happened inside the house or how the deceased was caught by fire. 23 Hence, non-examination of any such witness does not affect the merit of the case of the prosecution. The trial judge has correctly observed that there is no universal rule that evidence of a related witness shall be discarded. His evidence is to be appreciated with extra caution. 55. Why the trial judge has believed the prosecution case has been briefly reflected in para-17 of the judgment. Let us reproduce the said passage: “17. Thus, in view of the entire discussions made above in great details, I find that the prosecution has successfully established the factual aspect of the case that on 17.06.2006 night at about 1 0’ clock while the deceased-wife was sleeping in the house with the female child by her side, at that time the accused- husband returned home from outside, poured kerosene on her body and set fire causing 80% burn injuries on her person and ultimately she succumbed to such burn injuries on 24.06.2006 at 9.20 am while undergoing the M.K.C.G. Medical College Hospital, in treatment Berhampur.” The trial judge has further observed that the person who caused such bodily injury, shall be deemed to have caused the death. Therefore, the accused having caused death of his wife, Bishnupriya Naik, has committed culpable homicide as defined under Section 299 of the IPC. 56. That apart, the statement of P.W.4 that the appellant had threatened the deceased to commit suicide by hanging before he returned back home, otherwise he would kill her by pouring kerosene 24 and setting fire has been rightly relied by the trial judge, as the evidence of intention to kill. 57. According to P.W.1, the deceased did state that on his query that “after a quarrel with the accused, the accused putting kerosene on her, set fire for which she was burnt”. From the testimony of P.W.1, it is also apparent that he has referred to the statement of his younger son (P.W.4). His son had stated him that the appellant having poured kerosene on the deceased, set fire on her person. 58. So far as P.W.3 is concerned, he has disclosed in the trial that the deceased made a statement to him that “in the night of incident, her husband having come to the house taking liquor, set fire on her by pouring kerosene”. He has also testified that P.W.4 had stated to him that the appellant “having come to the house taking liquor, quarreled with the deceased and by putting kerosene on her set fire which fact he saw”. 59. Thus, what has happened on the fateful night can be gathered from the testimony of P.W.4 apart the dying declarations. P.W.4 has stated that he slept in the room keeping the door half-closed. When they (the deceased and P.W.4) slept with the child of the deceased, the 25 appellant came to the house and started shouting. He got up and saw the appellant pouring kerosene on his deceased sister from a plastic jerricane and set fire on her body. P.W.4 did not state that he saw the appellant extinguishing the fire. As he had shouted, some people from the neighbourhood came and extinguished the fire. 60. Having appreciated the entire evidence placed sequence-wise, we find that there is no evidence relating to any demand of dowry or any other unlawful demand or existence of previous enmity. P.W.4 has seen the occurrence. It is apparent that quarrel preceded the occurrence. We have also noted the opinion of P.W.2 on the pattern study. He has stated that the fire cannot be accidental one. 61. As per the evidence of P.W.4, the appellant had earlier threatened the deceased that she should commit suicide by hanging herself or he would kill her on coming back. On coming back, he poured kerosene on her and set fire on her person. This indicates his intention to cause the burn injuries. Burn injuries are likely to cause death of the person to whom it is caused. So the appellant was aware that such injuries were likely to cause death of the deceased. His act is covered by the second clause of Section-300 of the IPC which provides that the act should be 26 done with the intention of causing such bodily injury which the accused knows is likely to cause death to whom the harm is caused. 62. We have carefully examined the evidence in order to determine whether the action of the appellant would attract any of the exceptions provided in Section-300 of the IPC, more specifically Exception 4. Exception 4 of Section 300 of the IPC reads as follows: “Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.” In the present case, the act of pouring kerosene and setting the deceased on fire was a cruel act and was not the result of a sudden quarrel. 63. Relying on the admission of P.W.5 the doctor in his cross examination that the injuries on the appellant can be caused if one consciously wants to rescue burning person, leaned counsel for the appellant has submitted that the fire was a result of an accident and the appellant tried to save the deceased for which he sustained burn injuries. 64. That contention is also not acceptable for two reasons viz. location of the injuries and the evidence of P.W.4. The relevant portion of the evidence of P.W.4 has been referred to, by us earlier. P.W.4 has categorically stated that when fire gutted the body of the deceased, the 27 appellant holding the child went outside the house and at that time, fire also gutted him and the child. The appellant has sustained burn injuries on right deltoid region extending to the arm, over left abdominal wall and posterior aspect of left thigh extending to buttock. The location of the burn injuries on the appellant is also suggestive of a person who was trying to escape from the spot and not a person who was trying to save a person whose body had caught the fire as there are no injuries on the hands. These injuries support the evidence of P.W.4 that the accused got gutted while leaving the spot with the child. 65. The appellant had been examined on 25.06.2006 on police requisition. If he had actually sustained injuries while trying to save the deceased and had gone with her to the hospital on 19.06.2006, there was no reason as to why he did not get treated on the same day. 66. Hence, we have no hesitation to hold that the prosecution has successfully established that the conduct of the appellant both at the time of the occurrence and immediately thereafter is consistent only with the hypothesis of the guilt of the appellant and inconsistent with his innocence. 67. The evidence on record proves beyond reasonable doubt that the appellant had poured kerosene oil on the deceased and set her on fire 28 which resulted in burn injuries on her person leading to her death. The offence of murder, punishable under Section 302 of the IPC has, therefore, been established beyond reasonable doubt by the prosecution against the appellant. 68. Having observed thus, we find no merit in this appeal and
Decision
consequently, the appeal is dismissed. 69. The physical records, if, are still lying in the Registry, be returned. Sabitri Ratho, J. I agree (S. Talapatra) Judge (Savitri Ratho) Judge Orissa High Court, Cuttack. The 15thMay, 2023/Subhasis Mohanty, P.A. Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. I/C Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 21-Sep-2023 11:27:46