MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.512 of 2012 In the matter of an Appeal under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment dated 27.08.2012 passed by the learned Sessions Judge, Nabarangpur in Criminal Trial No.73 of 2007. Ajit Kochim @ Kachim …. Appellant -versus- State of Odisha …. Respondent For Appellant : Mr. B. Mishra, Advocate For Respondent : Mr. G.N. Rout, ASC CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of hearing : 12.08.2024 : Date of judgment : 24.09.2024 V. Narasingh, J. The appellant has called in question the judgment of conviction under Section 302 IPC and order of sentence dated 27.08.2012 to undergo R.I for life and to pay a fine of Rs.10,000/- in default to undergo further R.I for a period of two years passed by the learned Sessions Judge, Nabarangpur in Criminal Trial No.73 of 2007. Prosecution Case. 2. In the year 2006 the appellant married Amita Kachim (since deceased). After few years of the marriage, there was a dissension and the appellant and his family members started torturing the deceased for dowry. With the intervention of the well- CRLA No.512 of 2012 Page 1 of 8 wishers the matter subsided. Thereafter, the appellant and the deceased went to Khurda to earn their livelihood as labourers in a private company. It is alleged that during their stay appellant administered poison to the deceased in the guise of giving no worm medicine and while she was being taken to the hospital she died. Having come to know that his daughter has been killed by the appellant by poisoning, father of the deceased Shyam Sundar Bagh (P.W 12) lodged information with A.S.I of Kamta outpost, which was later registered as Tentulikhunti P.S Case No.11 of 2007 of Nabarangpur District under Sections 498-A/304-B/302 IPC citing the appellant as the sole accused. During the course of investigation, since accusation came to fore regarding involvement of the parents of the appellant, they were arrayed as accused for commission of offence under Section 498(A)/34 IPC. 3. On conclusion of trial, learned Sessions Judge, Nabarangpur by judgment dated 27.08.2012 in Criminal Trial No.73 of 2007 while acquitting the appellant as well as his parents of charge under Section 498-A/34 IPC found the appellant-husband of the deceased guilty of commission of offence under Section 302 IPC and accordingly he was directed to undergo R.I for life and pay a fine of Rs.10,000/- and to undergo R.I. for a further period of two years in default thereof. 4.
Legal Reasoning
Learned counsel for the appellant Sri Mishra, submitted that the appreciation of the evidence by the learned Trial Court being perverse the impugned judgment of conviction of the appellant under Section 302 IPC is liable to be set aside and he is to be acquitted of the charge. CRLA No.512 of 2012 Page 2 of 8 5. Per contra, learned Public Prosecutor Sri Rout submitted that since the judgment is based on cogent analysis of the evidence the same does not call for any interference. 6. The prosecution in order to bring home the charge examined 27 witnesses and 12 documents were also admitted into evidence and marked as exhibits on behalf of the prosecution. 7. The defence adduced oral evidence through one Pankaj Bag (D.W 1). 8. P.W.12 is the informant, father of the deceased. P.Ws 1 to 5, 7 & 8 are witnesses to the quarrel between the accused-appellant and his wife (deceased) post marriage and the subsequent settlement thereof in the meeting of the “Panch”. They are also cited as witnesses who deposed about the appellant bringing the dead body of the deceased to the village by a car. P.W.6 and 16 are the witnesses to the seizure of wearing apparels of the deceased. P.W.6 is also a witness to the seizure of a necklace of the deceased. P.Ws 9 to 11 and 24 are the co-villagers of the appellant, who were working in the same company at Khurda as labourers and who are stated to be the witnesses to the circumstances under which the death occurred and shifting of the deceased to the hospital. 9. P.Ws 3 and 14 are the witnesses to the inquest. P.Ws 13, 15 and 19 are the witnesses of the marriage of the appellant and the deceased. P.Ws 17 and 18 are the post occurrence witnesses. P.Ws 20 and 21 are the doctors, who conducted autopsy of the deceased. P.W. 22 is the scribe of the F.I.R, who was assisted by P.W 12. 10. P.W 25 is the A.S.I of police, who first received the intimation and P.W 27 is the investigating officer. CRLA No.512 of 2012 Page 3 of 8 11. P.W 23 is the Executive Magistrate, who was present at the time of inquest. 12. Exhibit 5 is the post mortem report. Exhibit 5/1 and 5/2 are the signatures of the doctors P.Ws. 20 and 21 respectively who conducted post-mortem. Since from the post mortem examination report, the cause of death could not be ascertained, viscera was collected and sent for chemical examination. Such chemical examination report Ext. 12 revealed that “endosulfan insecticidal poison” was detected in the viscera. 13. Since there was no iota of doubt that the death of the wife of the appellant Amita was other than under the normal circumstances, learned Trial Court on closely scrutinizing the evidence on record arrived at a finding that “soon before her death the deceased was not subjected to cruelty or harassment by her husband accused Ajit” and, therefore, held that the presumption under Section 113-B of the Indian Evidence Act, 1972 cannot be invoked in the case at hand and, therefore, acquitted the appellant of the charge under Section 304-B IPC which has attained finality. 14. Thereafter, learned Trial Court proceeded to consider the evidence relating to the charge under Section 302 IPC in view of Ext.12 the chemical examination report that the death of the deceased was on account of endosulfan insecticidal poison as found in the viscera. 15. Learned Trial Court has rightly held in paragraph-12 of its judgment that it is nobody’s case that the deceased voluntarily consumed poison or that poison was forcibly administered to the deceased. Learned Trial Court examined the evidence in the background of the allegation of the prosecution that in the guise of CRLA No.512 of 2012 Page 4 of 8 giving medicine the appellant gave endosulfan insecticidal poison to the deceased, who consumed it in good faith and later on died on account of consumption of such poison. 16. The extra judicial confession of the appellant in the village meeting which was sought to be proved through P.W. 12 was not accepted by the learned Trial Court since the same did not derive support from the evidence of P.Ws 1 to 3, 7, 11 and 24 who were also present in the meeting. 17. In order to fasten the appellant with the guilt for commission of the offence under Section 302 IPC, learned Trial Court placed reliance on the evidence of P.Ws 9 to 11 and 24, who are the co-villagers and the I.Os P.Ws 25 and 27. 17-A. P.W.9 stated that he was a co-worker with the appellant and the deceased and found the wife of the appellant (Amita) lying in a senseless condition on the road outside the said company. He along with the appellant (husband) and others took her to the hospital for medical treatment. 17-B. P.W.10 has stated that he had seen the deceased Amita in her house in the morning and while returning after taking bath on the way he found the appellant Ajit taking the deceased to the hospital for treatment. She has stated in her deposition that “Ajit told us that he had given her medicine for no worms and she is now senseless”. 17-C. It is the testimony of P.W.11 that on hearing about the death when he proceeded to appellant’s house and asked the appellant about the cause of death, he told that death was on account of administering poison. CRLA No.512 of 2012 Page 5 of 8 17-D. P.W.24, who is the co-worker and residing in the hamlet with the appellant and the deceased, has stated that on the date of occurrence the accused gave some medicine to the deceased and after taking medicine the deceased started vomiting and finally fell down on the road and thereafter, he along with the accused- appellant and others took the deceased to the medical for treatment. 18. The seminal question which confronts this Court is as to whether the accused intentionally gave endosulfan insecticidal poison to his wife in the guise of no worm medicine which ultimately led to her death. 19. P.W.25 is the I.O. And, he has stated that during the course of interrogation the accused confessed before him that he had killed his wife by giving her poison. It is his further evidence that the deceased had concealed empty deworm medicine bottle and the empty poison container in a bush near the wall situated nearby the ground in front of an under-constructed company. Thereafter, the accused led to the place of concealment and gave recovery of poison container and the empty medicine (deworm) bottle. The same was seized and the disclosure statement of the accused was recorded and marked as Ext. 8. Ext. 8/1 is the signature of P.W.25 and Ext. 8/2 is the signature of the accused. 20. Admittedly both the bottles marked as Ext. F and G were sent for chemical examination report. Endosulfan insecticidal poison was detected in one of the bottles Ext. F which matched with one detected in the viscera but shockingly enough the seized bottles Ext. F and G which contained endosulfan insecticidal poison were not produced before the learned Trial Court. Such serious omission cannot be overlooked. CRLA No.512 of 2012 Page 6 of 8 21. It is not borne out from the evidence on record that the accused knowingly gave poison to the deceased. It is also curious to note that no independent witness has been examined though independent witnesses were readily available to prove the seizure. Learned Trial Court fell into error in not considering that in the absence of materials being proved in court which were discovered in terms of Section 27 of the Evidence Act, no reliance can be placed on the disclosure statement. Learned Trial Court signally failed to take note of the same and was swayed away by the fact that traces of such poison was found on the wearing apparels of the accused as well as deceased. 21-A. In the background of the prosecution case that it is the accused who took the deceased wife to the hospital and the wearing apparels of the accused and the deceased containing same poison being detected cannot be held to be an incriminating circumstance against the accused-appellant as done by the learned Trial Court. 21-B. Intention to commit the offence under Section 302 IPC cannot be imputed on the said count as has been done by the learned Trial Court and more so in the factual background of the case at hand. 22. Considering the evidence the learned Trial Court failed to appreciate the cardinal principle of appreciation of the evidence qua Section 27 of the Evidence Act. In this context, it is worthwhile to refer to the judgment of the Apex Court in the case of Venkatesh @ Chandra & another vrs. State of Karnataka, 2022 SCC Online SC 765. 23. On a cogent analysis of the evidence on record this Court finds that non-production of the bottle which contained endosulfan CRLA No.512 of 2012 Page 7 of 8 insecticidal poison though seized and no independent witness having been examined to prove such seizure, learned Trial Court gravely erred in relying on the extra judicial confession of the accused that he administered poison to the deceased in arriving at a finding that the accused committed the offence under Section 302 IPC. 24. Hence on a conspectus of the evidence on record, this Court is not persuaded to hold that the prosecution has been able to establish the guilt of the accused committing the murder of his wife by administering poison beyond reasonable doubt. 25. In the result, the appeal is allowed. The judgment of conviction and order of sentence dated 27.08.2012 passed by the learned Sessions Judge, Nabarangpur in Criminal Trial Case No.73 of 2007 are hereby set aside. The appellant is acquitted of all the charges. Since the appellant is on bail, his bail bonds shall stand discharged. (V. Narasingh) Judge D. Dash, J : I agree. (D. Dash) Judge Signature Not Verified Digitally Signed Signed by: PRADEEP KUMAR SWAIN Reason: Authentication Location: Orissa High Court, Cuttack Date: 26-Sep-2024 18:16:05 Orissa High Court, Cuttack Dated the 24th September, 2024/Pradeep CRLA No.512 of 2012 Page 8 of 8