The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.679 of 2012 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 12th June, 2012 passed by the learned Sessions Judge, Phulbani in Sessions Trial No.86 of 2011. Karma @ Budha Naik …. Appellant ---- -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.A. Tripathy (Advocate)
Legal Reasoning
For Respondent - Mr.G.N.Rout, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 06.11.2023 : Date of Judgment :13.11.2023 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 12th June, 2012 passed by the learned Sessions Judge, Phulbani in Sessions Trial No.86 of 2011 arising out of G.R. Case No.164 of 2009(A) corresponding to Phulbani Town P.S. Case No.57 of 2009 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Phulbani. CRLA No.679 of 2012 Page 1 of 9 {{ 2 }} 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.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for six (6) months for commission of the said offence. 2. PROSECUTION CASE:- One Akhya Digal of Village-Dellipanka had married Kumudini Naik, daughter of Kalia Digal (Informant-P.W.2) sometime in the year 2002 and a daughter had been born to the said wedlock. In the year 2007, dissention having arisen between them, there was a separation. So, Kumudini married this accused, a resident of Jiringpada. The marriage was performed in a temple and thereafter, Kumudini remained with the accused in his house. It is stated that when Kumudini was visiting her father’s house, she used to tell that her husband (accused) and in-law were demanding the cash and other articles towards dowry and threatening her. On 07.06.2009 morning, Kalia (Informant-P.W.2), the father of Kumudini got an information about the murder of Kumudini in her matrimonial home. When he (P.W.2) went there, he saw that the dead body of Kumudini was hanging from the branch of a custard apple tree with both of her hands in tying CRLA No.679 of 2012 Page 2 of 9 {{ 3 }} condition and mouth and vagina to have been gagged. The father of the deceased (P.W.2), therefore, getting a report written by one Manoj Kumar Dalabehera (P.W.10), submitted the same to the Inspector-in-Charge of Phulbani Town Police Station (P.S.). The above written report, being received by the IIC. (P.W.13), the same was treated as FIR (Ext.1) and upon registration of the case, took up the investigation. 3. The Investigating Officer (I.O.-P.W.13), in course of the investigation, examined the informant (P.W.2). The I.O. (P.W.13), having sent a requisition to the S.D.M. to depute an Executive Magistrate, visited the spot and prepared the spot map (Ext.12). He (P.W.13) held inquest over the dead body of the deceased in presence of the witnesses and prepared the report (Ext.2). He sent the dead body of Kumudini for post mortem examination by issuing necessary requisition. The wearing apparels of the deceased were seized by the I.O. (P.W.13) under seizure list (Ext.9). The seized incriminating articles were sent for chemical examination through Court. On completion of investigation, the I.O. (P.W.13) submitted the Final Form placing this accused along with co-accused Rina Naik (since acquitted) to face the Trial for commission of the offence under section 498-A/302/304-B/34 of the IPC. CRLA No.679 of 2012 Page 3 of 9 {{ 4 }} 4. Learned S.D.J.M., Phulbani, 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 aforesaid offences against this accused person along with co- accused Rina Naik (since acquitted). 5. The prosecution, in support of its case, has examined in total thirteen (13) witnesses during Trial. Out of them, as already stated P.W.2 is the informant, who happens to be father of the deceased whereas P.W.1 is the mother of the deceased. P.Ws.3 & 5 are the maternal uncle of the deceased. P.W.4 is a neighbour of accused and P.W.6 is the Executive Magistrate in whose presence the inquest had been held. P.W.8 is the uncle of the deceased. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.11. The I.O., at the end, has come to the witness box as P.W.13. 6. 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 13. Out of those, the important are, the FIR (Ext.1), the inquest report (Ext.2), the post mortem report (Ext.8), and the spot map (Ext.11). CRLA No.679 of 2012 Page 4 of 9 {{ 5 }} 7. This accused along with co-accused Rina Naik (since acquitted), having taken the plea of complete denial and false implication, have not tendered any evidence. 8. Mr.A. Tripahty, learned counsel for the Appellant (accused) submitted that although the prosecution has established that Kumudini (deceased) met a homicidal death, the evidence as to the complicity of this accused in causing such homicidal death of the deceased is wholly unsatisfactory. According to him, merely raising suspicion, this accused has been held to be the perpetrator of the crime when the co-accused Rina facing the trial with the present accused, has been acquitted of all the charges. He submitted that the conviction of this accused for commission of the offence under section 302 of the IPC with the available evidence is not justified and the Trial Court has committed grave error in concluding that said charge has been established against this accused beyond reasonable doubt. 9. Mr.G.N. Rout, leaned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt against this accused, as has bene returned by the Trial Court, submitted that the death of Kumudini, having taken place near the house of the accused, when the accused has not come forward to provide any explanation as to how it all happened that Kumudini died CRLA No.679 of 2012 Page 5 of 9 {{ 6 }} having received the injuries by external means, the Trial Court did commit no wrong in holding the accused guilty of the crime. 10. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the prosecution (P.Ws.1 to 13) and have perused the documents admitted in evidence marked as Exts.1 to 13. 11. In so far as the death of Kumudini is concerned, we find from the evidence of the Doctor (P.W.11) that during post mortem examination, he had noticed two ligatures attached on the neck, the outer ligature was the sari present encircling the upper 1/3rd of the neck below the mandible with knot seen over the right side of the neck 1” behind the right angle of the Jaw whereas the inner ligature was also sari present encircling the entire neck continuing at the level of middle 1/3rd of neck without any sign of knot and knot being present on the left side of the neck below the angle of mandible. His further evidence is that on dissection of the ligature mark, it was found to be corresponding to inner ligature. His categorical evidence is that Kumudini, therefore, had been strangulated to death. All these findings, having been noted in his report (Ext.8), the findings of the Doctor (P.W.11), have not even been attempted to be impeached in any manner. The I.O. (P.W.13), who held the inquest, has also noted all these injuries in his report Page 6 of 9 CRLA No.679 of 2012 {{ 7 }} (Ext.2). With all these above, thus having found the prosecution to have well proved the case that Kumudini met a homicidal death, we are now called upon to address the submission on the sustainability of the finding of guilt of the accused. 12. Admittedly, there is no eye witness to the occurrence. P.W.1 is the mother of the deceased. She was not present at the spot at the time. Although she has stated that the accused had assaulted Kumudini and killed her, she clearly states to have got such information and rushed to the spot. She has given another turn to the case by saying that her deceased daughter was staying with Radhakanta of Phulbani. 13. P.W.2 is the father of the deceased and the informant, who had lodged the FIR (Ext.1). When P.W.1 states to have gone to the house of the accused receiving the information, she is silent that at that time whether the accused was very much present or not. P.W.1 when has stated to have rushed to the house of accused, she again states to have gone there with police. He states that accused Karna and other family members were present in the house. The police personnel, who is said to have accompanied P.W.2 has not been examined. This P.W.2 has further stated that his daughter (Kumudini) was residing in the house of the accused on rent for three years. CRLA No.679 of 2012 Page 7 of 9 {{ 8 }} The uncle of the deceased, namely, Bibhisan Digal, has been examined as P.W.3. His evidence is that two years before the death of Kumudini, she was residing in the house of Karna (accused). When he states that being called, he had been to the spot seen the dead body of Kumudini hanging in a branch of custard apple tree near the house of the accused Karna, he does not state to have seen Karna there at the relevant time. The same is also the evidence of P.W.5, who is another uncle of the deceased. P.W.8, another relation of the deceased, is also silent as to the presence of the accused Karna when he arrived at the place where the dead body of the deceased was found to be hanging from a branch of custard apple tree standing near the house of accused Karna. No other evidence is forthcoming to show that accused Karna was found in the house during the morning hours nor it is said that he was present in the night in the house of Kumudini In such state of affair, merely because it is even accepted for a moment that Kumudini and the accused were residing in their house, the dead body of Kumudini being detected in a hanging condition on the branch of a custard apple standing near the house of the accused and that leads to suspect the involvement of the accused, yet not enough to record the finding beyond reasonable doubt that it is the accused, who is the perpetrator of the crime and had strangulated Kumudini to death. CRLA No.679 of 2012 Page 8 of 9 {{ 9 }} With the evidence, as afore-discussed, we find that the prosecution has utterly failed to prove the charge against this accused (Karna) beyond reasonable doubt by leading clear, cogent and acceptable evidence and the Trial Court’s finding as to the guilt of accused Karna for committing the murder of Kumudini is thus vulnerable. 14. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 12th June, 2012 passed by the learned Sessions Judge, Phulbani in Sessions Trial No.86 of 2011 are hereby set aside. Since the Appellant, namely, Karna @ Budha Naik is on bail, his 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: 14-Nov-2023 14:12:35 CRLA No.679 of 2012 Page 9 of 9