The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.206 of 2012 In the matter of an Appeal under Section 374 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 5th March, 2012 passed by the learned Sessions Judge, Baleswar in Sessions Trial No.48 of 2007. Smt. Sukanti Behera …. Appellant ---- -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.P. Nayak (Advocate) For Respondent - Mr.G.N. Rout, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE G. SATAPATHY Date of Hearing : 06.10.2023 : Date of Judgment : 01.11.2023 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and the order of sentence dated 5th March, 2012 passed by the learned Sessions Judge, Baleswar in Sessions Trial No.48 of 2007 arising out of C.T. No.1263 of 2005 corresponding to Remuna P.S. Case No.14 (10) of CRLA No.206 of 2012 Page 1 of 13 - 2 - 2005 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Baleswar. 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, she has been sentenced to undergo imprisonment for life for commission of the said offence. 2. Prosecution Case:- On 17.09.2005 around 2.30 p.m., one Banthu Behera (P.W.1) lodged a written report with the Officer-in-Charge (OIC) of Remuna Police Station informing therein that his daughter-in- law, namely, Basanti had been killed by the other daughter-in- law, namely, Sukanti (accused). It was stated that the eldest son
Legal Reasoning
of Ganthu (P.W.1), namely, Rama Krushna (P.W.8) had first married Basanti (deceased) sometime in the year 1993. As the couple did not beget any child, Ramakrushna married Basanti (deceased) for the second time and from their wedlock, two daughters were born. It was further stated that the two wives of Ramakrushna. i..e, Basanti and Sukanti often used to quarrel. On 16.09.2005 evening, a quarrel took place between them concerning the carrying of the daughter of the accused by the deceased. So, there had been exchange of words between them. For that, it is said that the accused nurtured grudge against CRLA No.206 of 2012 Page 2 of 13 - 3 - Basanti (deceased). On 17.09.2000 morning around 6.30 a.m. when Basanti was cleaning the utensils near the tube well, accused gave a lathi blow on her head resulting her fall. Basanti while being taken to the hospital, succumbed to the injuries on the way and was declared dead in the hospital. Receiving the said report, the OIC treated the same as the F.I.R. (Ext.1) and registering the case, took up investigation. 3. The Investigating Officer (I.O.-P.W.10) recorded the statement of the informant (P.W.1) and other witnesses. The I.O. (P.W.10) then having visited the spot, held inquest over the dead body of the deceased and prepared the report to that effect (Ext.2). The blood stained bamboo lathi has seized by the I.O. (P.W.10) under seizure list (Ext.3). The dead body of the deceased was sent for postmortem examination by issuing necessary requisition. The seized incriminating articles were sent for chemical examination through Court. Thereafter, on completion of the investigation, the I.O. (P.W.10) submitted the Final Form placing this accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Baleswar, on receipt of the Final Form, took cognizance of said offence and after observing the formalities, committed the case to the Court of Sessions. That is CRLA No.206 of 2012 Page 3 of 13 - 4 - how the Trial commenced by framing the charge for the aforesaid offence against the accused. 5. In the Trial, the prosecution, in support of its case, has examined in total ten (10) witnesses. As already stated, the informant, who is the father-in-law of the deceased is P.W.1 whereas P.W.2 is the brother-in-law of the deceased. P.Ws.3, 4, 5 & 9 are the neighbours of the deceased. P.W.8 is the husband of the accused as well as the deceased. The Doctor, who had conducted the post mortem examination over the dead body of the deceased has been examined as P.W.7. The I.O., at the end, has come to the witness box as P.W.10. 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 7. Important of those, are the FIR (Ext.1); inquest report (Ext.2) and the post mortem report (Ext.4). The chemical examination report has been admitted in evidence and marked Ext.7. 6. The accused has taken a plea of complete denial and false implication. He, however, has not tendered any evidence in support of said plea. 7. The Doctor, who had conducted the autopsy over the dead body of the deceased, has been examined from the side of the CRLA No.206 of 2012 Page 4 of 13 - 5 - prosecution as P.W.7. She has noticed four lacerated wounds over the body of the deceased. In her evidence, she has stated the details of the seats of those injuries as also their dimensions. The lacerated wounds are (i) of size 1 cm X 1 cm X ‰ cm over forehead on right side; (ii) of size 1” X ½” X 2” just below the first wound; (iii) of size 2 & ½” X 1” scalp depath over occipital region of scalp; (iv) of size 2” X 1” scalp depth present over the occipital region of scalp; and (v) of size 1 cm X ‰ cm X ‰ cm present just below the right eye. It has been stated by her that all such injuries were ante mortem in nature and the cause of death was on account of haemorrhage and shock due to injury to vital organs like brain. We further find that in her report (Ext.4), she has noted all those injuries, which she has spoken during trial. There is even no such attempt to question the findings of the Doctor (P.W.7). In this case, we too find the evidence of the I.O. (P.W.10), who held the inquest over the dead body of the deceased and prepared his report (Ext.2) wherein those injuries on the dead body as seen by him have been noted. In view of all the above, we are left with no option but to conclude that the nature of death of Basanti, the wife of the accused, was homicidal.
Legal Reasoning
8. Mr.P.Nayak, learned counsel for the Appellant (accused) without disputing the finding of the Trial Court as regards the nature of death of Basanti to be homicidal on account of injuries CRLA No.206 of 2012 Page 5 of 13 - 6 - on her head leading to haemorrhage and shock as has been deposed to by the Doctor (P.W.7), who had conducted the autopsy over the dead body of the deceased finding full support from the evidence of I.O. (P.W.10) and other witnesses who had seen Basanti with head injuries, however, contended that the Trial Court with the available evidence on record ought not to have held that the prosecution has established the charge against the accused beyond reasonable doubt. He submitted that the Trial Court having not properly securitized the evidence of P.W.3 has unjustifiably placed implicit reliance upon the same in recording the finding of guilt against the accused that he had assaulted Basanti to death by causing injury on her head by lathi. He submitted that the evidence of P.W.3 when given a careful reading, her version as to have seen the incident would be found to be bristling with doubtful features and said version of P.W.3 when does not receive corroboration from other evidence which even though were available yet had not been placed, the Trial Court ought not to have returned the finding that it was the accused who had caused those injuries on the head of the deceased by means of lathi. In this connection, he invited our attention to the depositions of P.W.3, P.W.4 and P.W.10. He, therefore, submitted that the judgment of conviction and order of sentence impugned in this Appeal cannot be sustained. CRLA No.206 of 2012 Page 6 of 13 - 7 - 9. Mr.G.N.Rout, learned Additional Standing Counsel for the Respondent-State submitted that the evidence of P.W.3 is free from any infirmity so as to raise any doubt as regards her presence at the particular place and time in witnessing the incident. He submitted that P.W.3 having clearly stated as to how the accused came and assaulted the deceased and since that finds support from the evidence of P.W.4 and P.W.5, who have immediately arrived there, all these coupled with the evidence of the Doctor (P.W.7) who has stated that by lathi, such injuries were possible, the Trial Court did commit no mistake in holding the accused guilty for committing the murder of Basanit (deceased). 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.W.1 to P.W.10) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.7. 11. Before going to address the rival submission in judging as to how far the prosecution has established the charge against the accused, let us have a look at the evidence of the Doctor (P.W.7) who had conducted the post mortem examination over the dead body of Basanti. During her examination, he had noticed five lacerated wounds; over forehead, occipital region of scalp and CRLA No.206 of 2012 Page 7 of 13 - 8 - below the right eye. As per her evidence, the death was homicidal and the cause of death was on account of haemorrhage and shock due to injuries caused on the vital organ like brain. The findings of P.W.7 have not been impeached and those too receive support from the evidence of the I.O. (P.W.1) who during the inquest had noticed all such injuries and that had also been noticed by other witnesses who had arrived at the spot subsequent to the occurrence and also that P.W.3 who claims to be the eye-witness. With the above evidence on record, when the finding stands affirmed that Basanti met homicidal death, we find that the most important witness for the prosecution in support of the authorship of such injury as has been attributed to the accused is P.w.3, who is said to have seen the role played and act done by the accused upon the deceased. The incident is said to have taken place near the tube well standing in front of the house of the Informant (P.W.1). The I.O. (P.W.10) while preparing the spot map has shown the location of that tube well in front of the Varandah of the house and a small pond is said to be situated beyond that area surrounding the tube well. P.W.3 is a neighbour of Rama Krushna, the husband of the accused and deceased. She has stated that on 17.09.2005 around 6 a.m. when she was engaged in domestic work in her house, she heard the sound of someone giving blows and then heard the cry of the deceased saying “MAA LO, MAA LO”. It is her evidence CRLA No.206 of 2012 Page 8 of 13 - 9 - that hearing this when she came out, she saw the deceased Basanti washing the utensils under the tube well which is situated at a distance of 30 cubits from her house and accused was seen to be assaulting her with one Baunsa Muli (Lathi). The basic infirmity surfaces in her evidence is that when she says to have come out of the house by hearing the cry of the deceased preceded by the sounds of assault, which he heard, it could not have been the situation that thereafter she would have seen the deceased washing the utensils, which under no circumstance, can be said to have been continuing even continued after the assault. Furthermore, when she says to have come out of the house and saw the incident, her conduct does not appear to be normal and responsive as she does not state to have gone to the exact place in doing something to save the situation when that place, according to her evidence is just 30 cubits apart. He has further stated that after hearing the sound of three/four blows, she had come out of the house and then also she says to have seen the accused further assaulting the deceased by that lathi on her head. The witness has been examined by the I.O. (P.W.10) on 18.09.2005, the next day of the occurrence whereas she says that P.W.10 had examined her on two to three occasions and the very first examination was on the very day of the occurrence. The fact remains that I.O. (P.W.10) had gone to the spot on 17.09.2005 and he had visited the spot and prepared the spot map in presence of the witnesses. A doubt CRLA No.206 of 2012 Page 9 of 13 - 10 - arises in mind that when P.W.3 is the immediate neighbour and had seen the incident, how was it that she was not examined by the I.O. (P.W.10) on that day whe P.W.3 has stated to have been examined on the very day of occurrence, the record does not disclose her statement to have been recorded by P.W.10 under section 161, Cr.P.C. on 17.09.2005. P.w.3 having seen the incident is not stating to have called anybody else nor immediately told anyone that it was the accused, who had assaulted when she also does not say that as others arrived, there was no need to call. The Informant (P.W.1) although in the F.I.R. has stated that the accused had assaulted the deceased to death; during the Trial he has not supported the same. It is his evidence that he was simply informed by his son Jachindra (P.W.2) that accused and deceased were having exchange of words. The version of P.W.1 in the F.I.R. (Ext.1) cannot be used as substantive evidence. Jachindra (P.W.2) has also turned hostile. Both P.W.1 and P.W.2 having been cross-examined by the prosecution with the permission of the Court, no such material is seen to have elicited to come to its aid. It is the evidence of P.W.4 that when hearing the sound of the deceased, he went near the tube well, he saw the deceased lying unconscious and a bamboo lathi was found by him to be lying by her side. His evidence is that accused then was running CRLA No.206 of 2012 Page 10 of 13 - 11 - away towards his house from the tube well. Accepting his evidence for a moment that accused was running to her house that itself in the facts and circumstances is not so incriminating firstly because the possibility cannot be ruled out that seeing the deceased in that condition, the accused might have been running to the house to inform others and secondly, when it is not said that she was carrying the lathi and throwing it away ran to the house, she cannot be connected with the lathi found lying nearby. P.W.4 again says that when he arrived, by that time, P.W.1 and one Bhima Behera had arrived at the spot. We have already discussed the evidence of P.W.1 and that Bhima Behera had not been examined. His evidence also is not believable that when already persons had arrived at the place how it was that he saw accused running to her house. P.W.4 also does not say that the accused was running from near the tube well to her house. The husband of the deceased (P.w.8) is also not supporting the prosecution case and another neighbour (P.W.9) has too remained silent. One more interesting feature appears here is that P.W.4 when states to have even the accused running to her house that was not her previous version. It has been proved through the I.O. (P.W.10) after drawal of the attention of P.W.4 to such omission. This omission being material one, his version to have seen the accused near the place difficult to accept. As regards the examination of P.W.3 by the I.O., we find the I.O. (P.W.10) to CRLA No.206 of 2012 Page 11 of 13 - 12 - have stated that on 17.09.2005 he examined all the witnesses who were available near the spot. But and when it is seen that P.W.3 is a neighbour, she was examined on 18.09.2005, it is the version of P.W.3 that she lost her sense after seeing the incident and it was after two hours she regained the sense, which is stated by none when in view of the location, that could not have been lost light of others arriving there. But then the F.I.R. is seen to have been received around 2.30 p.m. and the I.O. (P.W.10) had gone to the spot on that very day. There is absolutely no explanation from the side of the prosecution as to how the statement of this star independent witness (P.W.3) being the only eye witness was recorded one day thereafter. This being not clarified/explained, in the surrounding factual settings and other available evidence, the solitary testimony of P.W.3 gets pushed into thick cloud, her version becoming opaque than clear. In view of the above discussion of the evidence of the prosecution witnesses, we are not in a position to say that it would be safe to rely upon the evidence of P.W.3 when also the evidence of other witnesses not stand to corroborate the same. We are therefore, of the view that the order of conviction of the accused for commission of the offence under section-302 of the IPC cannot be sustained. CRLA No.206 of 2012 Page 12 of 13 - 13 - 12. In the result, the Appeal is allowed. The judgment of conviction and the order of sentence dated 5th March, 2012 passed by the learned Sessions Judge, Baleswar in Sessions Trial No.48 of 2007 are hereby set aside. Since the accused (Sukanti Behera) is on bail, her bail bonds shall stand discharged. G. Satapathy, J. I Agree. (D. Dash), Judge. (G. Satapathy), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 02-Nov-2023 17:18:01 CRLA No.206 of 2012 Page 13 of 13