The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No. 82 of 2009 (Arising out of the Judgment of conviction on dated 12th of November, 2009 passed by Shri Sovan Kumar Dash, Ad-hoc Addl. Sessions Judge, Fast Track Court, Phulbani in Sessions Trial Case No. 99/30 of 2009, for the offence under section 302 of the Indian Penal Code, 1860) Sidheswar Pradhan Appellant Mr. Himanshu Bhusan Das, Advocate ---------- …. -versus- …. Respondent Mr. Arupananda Das, Addl. Government Advocate State of Odisha P R E S E N T: HONOURABLE SHRI JUSTICE S. K. SAHOO AND HONOURABLE SHRI JUSTICE CHITTARANJAN DASH Date of Judgment: 04.07.2024 Chittaranjan Dash, J. 1. The Appellant, namely Sidheswar Pradhan faced the trial on the charges under Section 302 of the Indian Penal Code (in short, hereinafter referred to “IPC”) before the learned Ad-hoc Addl. Session Judge, Fast Track Court, Phulbani for committing murder of his wife the deceased (hereinafter referred as “the deceased”) by setting her on fire by pouring kerosene over her body wherein, the learned court found him guilty in the offence charged as above, convicted and sentenced the Appellant to undergo Rigorous Imprisonment for life and to pay a fine of ₹5000/- (Rupees five thousand), in default to undergo further Rigorous Imprisonment for six months. 2. The prosecution case, in brief, is that a written report was lodged with the Officer-in-Charge of Sarangada Police Station by Raji Pradhan, the father of the deceased, on February 26, 2009, at 4:30 p.m. The report alleged that the deceased had married the Appellant approximately five years’ prior, according to the customs of their community. While they initially lived together peacefully, marital discord eventually arose. On February 26, 2009, Raji Pradhan received information from one Sukanta Pradhan, his grandson and residents of the same village that the Appellant killed the deceased. Following the incident, the deceased was taken to Sarangada for treatment by her sister Mashyafulla, her husband Saiba, and some co-villagers. The Medical Officer provided treatment and referred her to the District Headquarters Hospital in Phulbani. Since the accompanying persons had no money JCRLA No. 82 of 2009 Page 2 of 32 with them to carry the injured to the District Headquarters Hospital, Phulbani, they returned to the village to arrange funds, but she succumbed to her burn injuries on the way at around 4 a.m. Upon hearing this, the Informant immediately went to the village of the Appellant, confirmed his daughter’s death, and subsequently lodged the written report at the police station. Upon receiving the FIR, the Officer-in-Charge of Sarangada Police Station registered the case vide Sarangada P.S. Case No. 10 dt. 26.02.2009 and commenced investigation. 3. In the course of the investigation, the Investigating
Legal Reasoning
Officer (I.O.) examined the informant and the scribe of the FIR (P.W.9). He instructed a constable to guard the spot where the deceased’s body was kept. The I.O. visited the spot, examined witnesses, recorded their statements under Section 161 of the Cr.P.C., and seized incriminating articles including a piece of burnt saree, a plastic jerrycan containing kerosene, a broken matchbox, and half-burnt matchsticks found in the kitchen of the Accused-Appellant’s house. The I.O searched for the Appellant but he couldn’t be traced. Due to darkness, the I.O. could not conduct the inquest over the deceased’s body that night. 4. The following morning, the I.O. conducted the inquest in the presence of witnesses and the Executive Magistrate, JCRLA No. 82 of 2009 Page 3 of 32 preliminarily determining that the deceased had sustained 90% burn, which resulted in her death. He recorded this opinion in the inquest report under Ext. 3 sent the dead body of the deceased for post-mortem examination. He continued to search for the Accused-Appellant but could not apprehend him that day. Subsequently, the I.O. seized the dying declaration recorded by the Medical Officer on the day of the incident, including the OPD register vide Ext. 9. He examined the Medical Officer (P.W.11) and the attendant (P.W.7) present during the recording of the dying declaration. After the autopsy, he seized the deceased’s clothing. The I.O. apprehended the Accused-Appellant on February 28, 2009, and after his medical examination, he was forwarded to the court. The I.O. also examined additional witnesses connected to the case and recorded their statements. Later he handed over the charge of investigation to the Officer-in-Charge of the police station on his transfer, who forwarded the seized materials for chemical examination. After completion of the investigation, the Final form was submitted against the Accused-Appellant to face trial in court. 5. The case of the defence is one of complete denial and false implication. Further case of the defence is that he was not present in his house at the time of the incident and stated in his JCRLA No. 82 of 2009 Page 4 of 32 examination U/s. 313 Cr.P.C that he arrived at the scene of occurrence only after hearing about the deceased’s burning from Mashyafulla (P.W.8) and while attempting to douse the fire on the deceased received burn injuries to his person. 6. To bring home the charge, the Prosecution examined 13 witnesses in all. P.W.1 being the husband of Mashyafulla (P.W.8), who arrived at the spot immediately after the occurrence; P.W.2 is Sunil Pradhan, who arrived at the spot upon hearing the cry of the deceased and helped dousing the fire on her body by sprinkling water; P.W.3 is the scribe of the FIR; P.W.4 is Amar Pradhan, a cousin of the Accused, who is a post-occurrence witness and deposed about the dying declaration recorded by the Medical Officer; P.W.5 is a seizure witness; P.W.6 is the Medical Officer who conducted the autopsy on the dead body of the deceased as per police requisition; P.W.7 is Tipusultan Bisoyi, a medical attendant who witnessed the dying declaration recorded by the Medical Officer (P.W.11); P.W.8 is Mashyafulla Pradhan, the sister of the deceased, who arrived at the spot upon hearing the screams of the deceased and helped dousing the fire on her body by sprinkling water; P.W.9 is the informant in this case; P.W.10 is Sukanta Pradhan, the grandson of the informant (son of Mashyafulla); P.W.11 is the Medical Officer who recorded the JCRLA No. 82 of 2009 Page 5 of 32 dying declaration; P.W.12 is the investigating officer who carried out a part of the investigation; P.W.13 is the investigating officer who carried out other part of the investigation and submitted the charge-sheet in the case. In his defence, the Accused-Appellant examined himself as D.W.1 to prove his plea. However, he did not prove any document in support of his plea. 7. The learned trial court, having believed the evidence of the prosecution witnesses, found the prosecution to have proved its case beyond all reasonable doubt and held the Appellant guilty and convicted him, awarding sentence as described above.
Legal Reasoning
8. Mr. Das, the learned counsel for the Accused-Appellant submits that the impugned judgement suffers from several infirmities going to the root of the case as the learned court did not adhere to the basic principles of law enumerated to appreciate the circumstantial evidence more particularly in connection to the dying declaration believing on the witnesses interested in favour of the deceased and the flaws lies in convicting the Accused-Appellant solely on the basis of circumstantial evidence, concerning the conduct of the Accused-Appellant after the occurrence and the alleged dying JCRLA No. 82 of 2009 Page 6 of 32 declaration allegedly made before the witnesses and the doctor (P.W.11) in the presence of other witnesses such as P.Ws. 1, 2, 4, and 8, without certifying the mental state of the deceased. He further submits that the prosecution has neither proved any motive nor established any previous marital discord between the Accused-Appellant and the deceased and the learned trial court has convicted the Accused-Appellant merely on surmise and conjecture. He also contends that the Appellant was not present at the scene of occurrence and only arrived to rescue the deceased upon hearing about the incident from P.W.8, during which he sustained injuries on his thigh and hand which was not duly considered by the learned trial court. According to learned counsel, this is significant particularly in light of the evidence from P.W.8, who admitted during cross-examination that she did not have good relations with the Appellant and they had no visiting terms, especially after the death of her brother’s daughter reared in their house who was staying with the family of the deceased. He further submitted that, given that the body of the deceased was nearly 90% burnt, she could not have provided any cogent statement implicating him in the crime and her version could be shaky given the fact that she would be in shock from the fire. He states that the learned trial court remained oblivious to the vital fact appearing in the evidence to JCRLA No. 82 of 2009 Page 7 of 32 rule out any possibility of connecting the Appellant to be the author of the crime in absence of a link in the chain of circumstances that would unerringly point guilt on the Appellant and as such the impugned order deserves to be set aside according an order of acquittal in favour of the Appellant. 9. Mr. Das, the learned AGA, on the other hand submitted that the learned trial court has perspicaciously appreciated the evidence laid by the parties before it, more so the prosecution and believing the testimonies of the witnesses to be truthful and natural besides the circumstances appearing in the case to be consistent and coherent that links the chain unerringly pointing guilt on the Accused-Appellant found him to be the perpetrator of the murder and convicted him and as such the impugned judgement requires no interference. Answering the contentions raised by the learned counsel for the Appellant attributing criticism to the appreciation of evidence with regard to the various circumstances, Mr. Das, argued first on the point of the dying declaration made before the Medical Officer (P.W.11), so also, the oral dying declaration made by the deceased before the witnesses. According to the learned AGA, the said dying declaration brought in the evidence through P.W.2 and P.W.8, holds significance having probative value and can be the sole basis for conviction in as much as the same finds well JCRLA No. 82 of 2009 Page 8 of 32 corroborated to the earlier statement of the witnesses recorded u/s 161 CrPC and found no contradiction despite the fact being confronted to the witnesses during their cross-examination. The aforesaid evidence, therefore, is found to be truthful and voluntary. Further, the evidence with regard to the Medical Officer who deposed to have recorded the dying declaration in presence of witnesses and proved the same being an impartial and competent person, as recorded in presence of P.Ws. 1, 2, 4, and 8 lends further credibility to it. It is also argued by the learned AGA that although the mental state of the deceased was not explicitly certified by the Medical Officer, his firmness in deposing before the court on oath keeping in view his experience give assurance of the victim’s capacity to speak and to reveal the cause of death. Furthermore, the circumstantial evidence as regards the burn injuries suffered by the Accused-Appellant, his post- occurrence conduct of his failure to take steps in taking the deceased to the hospital and even to accompany her to the medical in spite of P.W.8’s requests, more so his absconding from the house for three days strongly pitted against him and adding to his peril to be the perpetrator of the crime. According to the counsel, it is a well-settled principle that circumstantial evidence, when forming a complete chain pointing unequivocally to the guilt of the Accused, is sufficient for JCRLA No. 82 of 2009 Page 9 of 32 conviction. While the Appellant argues that no motive or prior marital discord was proven, it is important to note that the absence of motive does not necessarily exonerate the Accused. The learned AGA, further submits that the prosecution has provided enough evidence of the discord between the deceased and the Accused through witness testimonies. The defence plea of the Appellant is unsubstantiated and contradicted by the evidence on record. The Appellant’s claim that he arrived at the scene only after hearing about the incident and sustained injuries while attempting to rescue the deceased is not credible. Additionally, the Appellant’s conduct of not accompanying the deceased to the medical due to fear is not a reasonable justification and rather indicates consciousness of guilt. In conclusion, the learned AGA, submitted that the prosecution has successfully proved its case beyond all reasonable doubt and the learned trial court has correctly appreciated the evidence and circumstances surrounding the case holding the Appellant guilty. 10. Having regard to the arguments advanced by the learned counsel of the respective parties, it is incumbent to deal with the testimonies of the relevant witnesses for better appreciation of the case. JCRLA No. 82 of 2009 Page 10 of 32 P.W.1, the husband of the deceased’s sister, in his sworn testimony, has stated that he heard about the deceased burning from P.W.10, his son and they both immediately rushed to the house of the deceased and found her completely burnt but still was able to speak. According to P.W.1, the deceased explicitly stated that her husband had asked her for money, and when she refused, he poured kerosene on her and set her on fire with a matchstick. This statement was made in presence of several witnesses, including P.W.1’s wife – Mashyafulla (P.W.8) and other villagers. P.W.1 also noted that the Accused-Appellant did not take any action to help the deceased or take her to the hospital, as he was present in the house during the incident but did nothing to assist. P.W.2, a co-villager working at a nearby brick kiln, corroborated P.W.1’s narration. According to him, he heard the screams of the deceased and rushed to her house along with Mashyafulla (P.W.8). They found the deceased on fire and managed to douse the flames by sprinkling water on her. P.W.2 further stated that the deceased disclosed before them that her husband poured kerosene on her and set her on fire. P.W.2 also confirmed that the Accused-Appellant was present at the house during the incident but refused to take the deceased to the hospital, even when P.W.2 suggested it. JCRLA No. 82 of 2009 Page 11 of 32 P.W.4, corroborated the statements of P.W.1 and P.W.2. He arrived at the scene and saw the deceased with severe burn injuries. He confirmed that the Accused-Appellant was sitting at the back of the house during the incident and did not attempt to help the deceased. He also accompanied the deceased to the hospital, where she repeated her narration of how she was set on fire. The doctor recorded this statement, and he signed it along with P.Ws. 1, 2 and 8. P.W.8, the deceased’s sister, provided a similar narration. She heard her sister’s screams while working at the brick kiln and rushed to her house with P.W.2. They found the deceased on fire and managed to douse it. The deceased told them that her husband had demanded money, and when she refused, he poured kerosene on her and set her on fire. P.W.8 confirmed that the Accused-Appellant was present at the house and did nothing to help. She also accompanied the deceased to the hospital, where the doctor recorded the deceased’s statement in their presence. P.W.10, the deceased’s nephew and son of P.Ws.1 and 8, also corroborated the testimonies of the previous witnesses. He arrived at the scene and found the deceased in a semi-conscious state with severe burns. His parents took the deceased to the JCRLA No. 82 of 2009 Page 12 of 32 hospital, where she later died. P.W.10 also informed his maternal grandfather, the informant, about the incident. P.W.11, the Medical Officer who attended to the deceased at Sarangada Hospital, states that the deceased arrived with severe burn injuries. He recorded her statement, in which she stated that her husband had poured kerosene over her and set her on fire with a matchstick while she was cleaning her eyes. This statement was recorded in the presence of the attendant and the accompanying persons, who signed it. P.W.11 confirmed that the mental condition of the deceased was stable enough to give a coherent statement, although her fingers trembled due to the pain. P.W.12, the investigating officer, further corroborated the sequence of events. He testified that he received a written report from the informant about the incident and conducted the investigation. He confirmed that the deceased had sustained 90% burn injuries and noted this in the inquest report. He also stated that the Accused-Appellant was apprehended from his house and had burn injuries on his body, which were examined by the Medical Officer. P.W.12’s investigation revealed that the Accused-Appellant and the deceased were alone in their house JCRLA No. 82 of 2009 Page 13 of 32 at the time of the incident, and the Accused-Appellant was present when the deceased was set on fire. P.W.13, another investigating officer who took over charge from P.W.12, re-examined some witnesses and the complainant. He sent the seized items for chemical examination and received the post-mortem report, which supported the prosecution’s case. P.W.13 confirmed that based on the strong evidence found during the investigation, a charge sheet was submitted against the Accused-Appellant. 11. Keeping in view the evidence brought by the respective parties through the witnesses and the arguments advanced, the issues in the instant case hinges in the admissibility, evidentiary value and reliability of the dying declaration made by the deceased orally before the witnesses P.Ws. 2 and 8 and the dying declaration recorded by the Medical Officer, P.W.11 besides other direct and circumstantial evidence. 12. In the matter of Kundula Bala Subrahmanyam and Another Vs. State of Andhra Pradesh reported in (1993) 2 SCC 684, the Hon’ble Supreme Court had highlighted the significance of a dying declaration in the following words – JCRLA No. 82 of 2009 Page 14 of 32 it “18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, is not creditworthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person’s death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement the causes or made by circumstances to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration...” the deceased regarding leading In the matter of Paniben (Smt.) Vs. State of Gujarat reported in (1992) 2 SCC 474, on examining the entire conspectus of the JCRLA No. 82 of 2009 Page 15 of 32 law on the principles governing dying declaration, this Court had concluded thus – “18. …….. (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. (1976) 3 SCC 104)