MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of hearing
Case Details
1 IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.13 of 2013 In the matter of an Appeal under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment dated 28.02.2013 passed by the learned Sessions Judge, Kalahandi, Bhawanipatna in C.T. (Sessions Case) No.24 of 2012. Anandini Rana …. Appellant -versus- State of Odisha …. Respondent For Appellant : Mr. S.K. Routray, Amicus Curiae For Respondent : Mr. G.N. Rout, ASC CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of hearing : 01.03.2024 : Date of judgment :12.03.2024 V. Narasingh, J. The Appellant from jail assailing her conviction under Section 364/302/201 of the Indian Penal Code, 1860 (‘IPC’) and sentencing her for life and pay a fine of Rs.20,000/- in default to undergo R.I for two years for the offence under Section 302 IPC, R.I for five years and pay a fine of Rs.5000/- in default to undergo R.I for one year under Section 364 IPC and R.I for two years and pay a fine of Rs.2000/- in default to undergo R.I for six months under Section 201 IPC with the stipulation that the substantive JCRLA No.13 of 2013 Page 1 of 10 sentences would run concurrently in terms of the judgment and order of sentence dated 28.02.2013 passed by the learned Sessions Judge, Kalahandi, Bhawanipatna in C.T. (Sessions Case) No.24 of 2012, has filed this Appeal. 2. On 19.10.2011 one Ganeswar Rana (P.W.1) presented a written report before the I.I.C., M. Rampur, Kalahandi alleging that his grandson Siba, a four year old child was kidnapped and murdered by his elder daughter-in-law, the accused. On the basis of the same, M.Rampur P.S. Case No.84 of 2011 was registered under Sections 364/302/201 IPC as against the accused. After investigation, charge sheet was submitted and on the basis of the same, the accused faced trial being charged under Sections 364/302/201 IPC for causing death of a four months old male child (Siba) of her sister-in-law Banita Rana (P.W.2). Prosecution Case 3. On 19.10.2011 at 9.00 A.M the mother of the deceased, namely, Banita Rana (P.W.2) left her four months old baby boy in the custody of her grand mother-in-law (P.W.3). The said P.W.3 sometime thereafter went for taking bath leaving the child in the house and at the relevant time, the accused was stated to be present in the house. After the mother P.W.2 returned from work, the child JCRLA No.13 of 2013 Page 2 of 10 was found missing and there was a frantic search for the child. During such period, the accused suddenly complained pain in her belly purportedly on account of pregnancy for which she was shifted to the hospital in a vehicle at the instance of Asha Karmi and some of the villagers including one Dhanamati Rana (P.W.11). Rani Rana (P.W.6) also accompanied the accused. On the way the accused got down from the vehicle on the pretext of attending the call of nature and at that time a child concealed in her belly suddenly slipped down which was noticed and recovered by P.W.11. The child was identified as the said missing child of P.W.2. The child and the accused were taken to the hospital where the child was declared dead and the claim of pregnancy of accused upon examination by the doctor was found to be false. 4. The case of the prosecution is based on circumstantial evidence and to fortify its stand, the prosecution has cited 19 witnesses. P.W.1 is the Informant, P.W.2 is the mother of the deceased, P.W.3 is the grandmother of the deceased, P.W.4 is the husband of the accused, P.W.5 is the Staff Nurse, P.W.7 is the seizure witness of Asha Karmy Register and Anganwadi Register. P.Ws.6,11 and 12 are the witnesses who accompanied the accused by Janani Surakhya vehicle to the hospital, P.Ws.8,9,10,13,14,15,17 JCRLA No.13 of 2013 Page 3 of 10 and 19 are the witnesses to the seizure of different articles. P.W. 16 is the doctor who conducted post mortem over the dead body of the deceased and P.W.18 is the I.O. Besides the above, the prosecution has proved several documents which have been admitted in evidence and marked Exts.1 to 16. Incriminating articles being produced those too have been marked as MOs.I & II. 5. The defence plea was one of complete denial and false implication. No evidence was adduced on behalf of the defence. 6. Primarily referring to the evidence of P.Ws.6, 11 and 12 and the evidence of the doctor (P.W.16) who conducted the post- mortem examination, learned Sessions Judge arrived at the finding of guilt of the accused. 7.
Legal Reasoning
Learned Amicus Curiae, Mr. S.K. Routray, submits that the conviction of the accused is based on surmises and conjectures with reference to their number, which would be discussed when would be so required and the degree of proof which is necessary to establish the guilt in a case of circumstantial evidence is woefully lacking in the case at hand. Hence, according to him, the appeal merits interference of this Court and the Appellant is entitled to be acquitted. JCRLA No.13 of 2013 Page 4 of 10 8. Learned counsel for the State, Mr. G.N. Rout, ASC-Public Prosecutor supports the impugned judgment and submitted with vehemence that on a bare reading of the same, it is evident that same has been based on a cogent analysis of the evidence on record keeping in view the stringent degree of probity in a case based on circumstantial evidence. 9. Evaluation of materials on record in a case based on circumstantial evidence has been reiterated by the Hon’ble Supreme Court recently in the case of Raja Naykar vrs. State of
Decision
Chhattisgarh (in Criminal Appeal No.902 of 2023 disposed of on 24.01.2024, 2024 : INSC 56) quoting extensively from the leading judgment of the Apex Court in the case of Sharad Birdhichand Sarda vrs. State of Maharashtra reported in (1984) 4 SCC 116. 9-A. Paragraphs-152 to 154 in the case of Sharad Birdhichand Sarda (supra) are extracted hereunder for convenience of reference. “152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198: 1970 SCC (Cri) 55) and Ramgopal v. JCRLA No.13 of 2013 Page 5 of 10 State of Maharashtra [(1972) 4 SCC 625: AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091: 1953 Cri LJ 129] : "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should and not "may be established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri) 1033: 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." JCRLA No.13 of 2013 Page 6 of 10 (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 10. The statement of Dhanamati Rana (P.W.11), who accompanied the accused and the star witness for the prosecution, in her examination in chief states thus: “….In the evening the accused complained pain in her belly. Then we called Janani Surakhya vehicle to take her to the hospital. I also accompanied the accused in the said vehicle to the hospital. The mother of accused had also accompanied the accused to the hospital. Near the hospital the accused intended to go for attending call of nature and accordingly she got down from the vehicle and went to a distance for urination where one child kept concealed in her belly slipped down which was collected by me. 2. I identified the said child to be the son of Iswar Rana. Then I immediately took the child to the hospital where the Doctor declared him dead.” Her testimony has withstood the scrutiny of the cross- examination. JCRLA No.13 of 2013 Page 7 of 10 11. The evidence of P.W.16, the doctor who conducted the post-mortem of the deceased child has stated in Paragraph-2 of his examination in chief that the cause of death of the deceased was due to asphyxia by throttling and the nature of death was homicidal. Time since death according to him was within 2 to 36 hours from the time of P.M. examination. The post-mortem report has been admitted in evidence and which narrates all those detail features which P.W.16 marked during P.M Examination which have led him to opine as aforesaid. 12. P.W.12 is the driver of the vehicle in which the accused was taken to the hospital and lends corroboration to the testimony of P.W.11 in stating that the accused intended to attend the call of nature and got down from the vehicle. The other ladies accompanied her in the said vehicle. He heard that a child was born from the accused and the said child was taken to the hospital. 13. This Court carefully scrutinized the evidence on record and the analysis thereof as has been made by the learned Court in seisin. 14. The circumstances which unerringly point to the guilt of the Appellant and totally incompatible with her plea of innocence are that the missing child of P.W.2 was carried stealthily by the accused. She pretended to be having pregnancy to facilitate her to JCRLA No.13 of 2013 Page 8 of 10 carry the child and that her attempt to do away with evidence failed when she alighting from the vehicle enroute the hospital on the pretext of attending the call of nature could not prevent the slipping of the child. 15. The missing of the baby and the contemporaneous conduct of the accused feigning pregnancy have relevance in terms of Section 8 of the Evidence Act and the subsequent recovery of the child who was later on found to be dead seen with the time since death as opined by the doctor (P.W.16) clearly establish the charge under Sections 364/302/201 IPC. 16. The accused in her statement under Section 313 of the Cr.P.C. did not offer any explanation and routinely denied all the accusations on the basis of the evidence adduced. 17. The circumstances which have been proved by the prosecution though the evidence of P.Ws.6,11 and 12 being linked together complete the chain in every respect which unerringly point at the guilt of the accused overruling all other hypothesis other than the guilt of the accused. 18. On an analysis of the evidence on record in the touchstone of the law governing the field for assessment of circumstantial evidence as adverted to hereinabove, this Court JCRLA No.13 of 2013 Page 9 of 10 cannot persuade itself to accept the submission of the learned counsel for the accused that the finding of conviction of the accused is not the outcome of just and proper appreciation of evidences. There is thus no scope to take any other view than to concur with the finding of the guilt of the accused as arrived at by the learned Trial Court. 19. Accordingly, the judgment of conviction and the order of sentence passed by the learned Sessions Judge, Kalahandi, Bhawanipatna in C.T (Sessions Case) No.24 of 2012 are hereby confirmed. 20. 21. In the result, the Appeal stands dismissed. Since the Appellant was allowed to be enlarged on bail, she is directed to surrender forthwith to serve out the sentence. Necessary steps in this regard as provided in law shall be taken by the learned Trial Court. (V. Narasingh) Judge D. Dash, J : I agree. (D. Dash) Judge Signature Not Verified Digitally Signed Signed by: PRADEEP KUMAR SWAIN Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 13-Mar-2024 16:40:21 Orissa High Court, Cuttack Dated the 12th March, 2024/ Pradeep JCRLA No.13 of 2013 Page 10 of 10