The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.24 of 2012 In the matter of an Appeal under section 383 of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 27.12.2011 passed by the learned Ad-hoc Additional Sessions Judge, (FTC), Nayagarh in S.T. case No.11/63 of 2011/2010. Jamuna Behera …. Appellant -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant- Mr. Amitav Tripathy Advocate For Respondent- Mr.P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D. DASH MR. JUSTICE A.C. BEHERA Date of Hearing :13.09.2023 :Date of Judgment:14.09.2023 D.Dash, J. The Appellant, by filing this Appeal from inside the Jail, has challenged the judgment of conviction and order of sentence dated 27.12.2011, passed by the learned Ad-hoc Additional Sessions Judge,
Facts
(FTC), Nayagarh in S.T. case No.11/63 of 2011/2010, arising out of G.R Case No.57 of 2010, corresponding to Nuagaon P.S. Case No.10 of 2010 of the Court of the learned Sub-Divisional Judicial Magistrate (SDJM), Nayagarh. JCRLA No.24 of 2012 Page 1 of 11 {{ 2 }} The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of Indian Penal Code, 1860 (in short, ‘the IPC’) and he has been sentenced to undergo imprisonment for life and pay fine of Rs.5000/- (Rupees Five Thousand), in default to undergo Rigorous Imprisonment for 1 (one) year for the offence under section 302 of the IPC. Prosecution case:- 2. During the last week of January 2010, Nirmala Mohanty (P.W.11), wife of Basanta Kumar Mohanty (P.W.9) had been to her father’s house at village Naitaila. Nirmala had carried her son Samir, who was then around two years old. On 05.02.2010, around 4 p.m., the accused, who had come to her father’s house, called Samir to her house. After sometime, when Nirmala (P.W.11) searched for her son and asked the accused regarding his whereabouts, the accused told her to either search ‘Atu’ or near the pond locally called as ‘Gadia’. It was further stated that when Basanta searched for his son, his wife Nirmala found their son in the pond situated on the back side. Samir was found dead with injuries. It was further stated that Basanta had enmity with accused in view of some previous incidents of theft and house burning. Due to such enmity, it was said that the accused in order to take revenge, committed the murder of Samir by throttling him. Basanta, the father of Samir then lodged a written report (Ext.4) with the Officer-in-Charge (OIC) of Nuagaon Police Station (P.W.12). The OIC (P.W.12), having received the said written report from Basanta (P.W.9), treated the same as FIR and registering the case, took up the investigation. JCRLA No.24 of 2012 Page 2 of 11 {{ 3 }} In course of investigation, the Investigating Officer (I.O-P.W.12) examined the Informant (P.W.9) and visited the spot, where he too prepared the spot map (Ext.5). He seized some incriminating articles at the spot. Having held inquest over the dead body of the deceased, the I.O (P.W.12) prepared the report (Ext.1) in presence of the witnesses. The dead body was sent for post mortem examination and the articles were also sent for chemical examination through Court. On completion of investigation, Final Form was submitted by the I.O (P.W.12) placing the accused to face the Trial for commission of offence under section 302 of the IPC. 3. Learned SDJM, Nayagarh, having received the Final Form as above, took cognizance of the offence under section 302 of the IPC and after observing the formalities, committed the case to the Court of Sessions for trial. That is how the Trial commenced against the accused by framing the charge for the said offence. 4. In the Trial, prosecution in total has examined thirteen (13) witnesses. As already stated, P.W.9 is the father of Samir (deceased) and he is the Informant, who had lodged the FIR (Ext.4) whereas the mother of Samir (deceased) is P.W.11, when the maternal grandfather of the deceased (Samir) has come to the witness box as P.W.3. The maternal grandmother of Samir (deceased) is P.W.5. P.W.4 is the girl with whom the deceased was playing and P.W.1 to P.W.7 are the co-villagers. The Doctor, who had conducted autopsy over the dead body of the deceased, is P.W.8 and P.W.10 is the paternal grandfather of Samir (deceased). 5. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been JCRLA No.24 of 2012 Page 3 of 11 {{ 4 }} admitted in evidence and marked Ext.1 to Ext.7. Out of those, the important are the FIR (Ext.4), Inquest Report (Ext.1), Post Mortem Report (Ext.3) and the Spot Map (Ext.5). 6. The plea of the accused is that of complete denial and false implication. The accused, however, has not tendered any evidence in support of his defence. 7. The Trial Court on discussion of evidence on record and the contemporaneous documents admitted in evidence and marked as exhibits has arrived at a conclusion that the prosecution has established the charges against the accused beyond reasonable doubt. The Doctor (P.W.8), who had conducted autopsy over the dead body of Samir (deceased) has stated to have noticed multiple bruises above the middle of left clavicle. It is also his evidence that he had noticed three more bruises over the middle of nose on right side, over left side chest and below the nipple on the anterior auxiliary line and bruise over the back below the tip of the left scapula. As per his evidence, all such injuries were ante mortem in nature and no ligature mark had been noticed. He has assertively stated that the cause of death was due to mechanical asphyxia. All these stated during trial have been
Legal Reasoning
noted in the report (Ext.3). We find that practically there is no challenge to the findings of this P.W.8. In addition to the above, we also get the evidence of other witnesses including the parents of Samir (P.W.9 and P.W.11) to have seen Samir with injuries on his person. With the above evidence on record, we have no option but to hold that the death of Samir was homicidal. JCRLA No.24 of 2012 Page 4 of 11 {{ 5 }} 8. Mr. A. Tripathy, learned counsel for the Appellant (accused) submitted that the prosecution case is based on circumstantial evidence. He submits that the circumstances projected by the prosecution such as the deceased was last seen in the company of the accused and she on being asked, had indicated the places where that Samir would be found, have not been proved and, therefore, according to him, the Trial Court has erred in holding the accused to be the perpetrator of the crime. It was further submitted that the evidence of P.W.5 and P.W.11 in support of the last seen theory being highly discrepant, ought not to have been relied upon and in view of the evidence that the parties had prior enmity, the Trial Court ought to have held that the case has been foisted against the accused in order to take revenge. 9. Mr. P. K. Mohanty, learned counsel for the Respondent-State while supporting the finding of guilt of the accused as has been returned by the Trial Court, contended that the evidence of P.W.5 and P.W.11 are quite consistent on the aspect that shortly before the recovery of the dead body of Samir (deceased), he was in the company of this accused being taken by her and he being a child of only two years of age, the company in such a case would mean the sole custodian and, therefore, according to him, in the absence of any explanation coming from the lips of the accused as to what happened with Samir during the period when he was with her or thereafter, the Trial Court is right in holding the accused to be the perpetrator of the crime in further deriving support from the false statement of the accused as has been stated by P.W.5 and P.W.11 which is reliable. JCRLA No.24 of 2012 Page 5 of 11 {{ 6 }} 10. Keeping in view the submissions made, we have carefully read the impugned judgment passed by the Trial Court. We have also gone through the evidence of the prosecution witnesses i.e. P.W.1 to P.W.13 and have perused the documents admitted in evidence and marked Ext.1 to Ext.7/1. 11. The prosecution here has not tendered any direct evidence in establishing the complicity of this accused. Admitted relationship amongst all these persons stands that Nirmala, the mother of deceased Samir is the daughter of Jhari (P.W.5) and Dinabandhu (P.W.10) and one Subasini (P.W.7) is the younger sister of Nirmala. The accused is the sister-in-law of Subasini (P.W.7). Subasini had been given marriage in the same village. Jhari (P.W.5) has stated that eight days before the fateful day, Nirmala and her son Samir had come to their house and during that period, accused was staying in the same village in her mother’s house. It is her evidence that Samir was playing in the front veranda of the house when accused came and took him. This P.W.5 stated to have seen Samir being taken by this accused being then present at the Danda of the house. Her further evidence is that mother of Samir i.e. Nirmala (P.W.11) when sometime thereafter searched for Samir, then accused being asked, told to search Samir either at Atu or Gadia (pond) and it was only thereafter Samir was found inside the water of that pond and he being taken to the hospital, was declared dead. During cross-examination, she has stated that Samir was playing at the relevant time and at that time she and he husband were present nearby. She has denied the suggestion that accused had not come and taken Samir with her and also the suggestion that accused had never told them to search Samir either at Atu or Gadia (pond). It is also her JCRLA No.24 of 2012 Page 6 of 11 {{ 7 }} evidence that when accused told them to search Samir in those two places, no outsider was present. So in that scenario, the prosecution having not examined any independent witness can in no way be blamed. This being the evidence of P.W.5, we find the evidence of P.W.11, who is none other than the mother of Samir. She has stated that on that day, when Samir was playing in front of the house of her father, her parents were present nearby and accused, who was in her father’s house came and took Samir with her. Her evidence is at par with the evidence of P.W.5. It the evidence of P.W.11 that accused is the sister-in-law (Nananda) of her sister. The conduct of P.W.5 and P.W.11 in not raising any protest or asking the accused as to why Samir was being taken, cannot be viewed adversely. She has further stated that when her sister Subasini (P.W.7) came, she asked her about her son Samir and was told by Subasini (P.W.7) that she was in the house of the accused. It is also her evidence that when one Mitali (P.W.4) came, she being asked, she also told them to search Samir in the tank or ‘Atu’ and thereafter, Samir was found in the water of the tank. The time gap between the accused taking Samir and his recovery from the water of the tank is very short. As per the evidence of P.W.5 and P.W.11, the events during entire period running from Samir being taken by the accused and recovery of Samir from the tank of the water is as if happening continuously. Learned counsel for the Appellant-accused submitted that the evidence of P.W.5 and P.W.11 are not believable since both P.W.4 and P.W.7 have not supported the prosecution case. Even if it is said that the evidence of P.W.5 and P.W.11 is not believable, when they say that P.W.7 had told before her that Samir was in the house of the accused, nothing surfaces on record to doubt the version of P.W.5 and P.W.11 JCRLA No.24 of 2012 Page 7 of 11 {{ 8 }} that accused had taken Samir with her. The prosecution having proved this particular fact through P.W.5 and P.W.11, the accused is seen to be not coming forward with any explanation as to what happened thereafter when the fact remains that Samir was only two years old boy and it has also been established that Samir’s death was homicidal in nature on account of medical asphyxia. 12. It may be noted that once the theory of “last seen together” was established by the prosecution, the accused was expected to offer some explanation as to when and under what circumstances he had parted the company of the deceased. It is true that the burden to prove the guilt of the accused is always on the prosecution, however in view of Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. Of course, Section 106 is certainly not intended to relieve the prosecution of its duty to prove the guilt of the accused, nonetheless it is also equally settled legal position that if the accused does not throw any light upon the facts which are proved to be within his special knowledge, in view of Section 106 of the Evidence Act, such failure on the part of the accused may be used against the accused as it may provide an additional link in the chain of circumstances required to be proved against him. In the case based on circumstantial evidence, furnishing or non-furnishing of the explanation by the accused would be a very crucial fact, when the theory of “last seen together” as propounded by the prosecution was proved against him. 13. In case of Rajender vs. State (NCT of Delhi) (2019) 10 SCC 623, it was observed as under: JCRLA No.24 of 2012 Page 8 of 11 {{ 9 }} “Having observed so, it is crucial to note that the reasonableness of the explanation offered by the accused as to how and when he/she parted company with the deceased has a bearing on the effect of the last seen in a case. Section 106 of the Evidence Act, 1872 provides that the burden of proof for any fact that is especially within the knowledge of a person lies upon such person. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the court to be probable and satisfactory, and if he fails to offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under Section 106 is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him. This, however, does not mean that Section 106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. Section 106 only lays down the rule that when the accused does not throw any light upon facts which are specially within his/her knowledge and which cannot support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances.” 14. In Satpal Vs. State of Haryana, (2018) 6 SCC 610, the Apex Court observed as under: - “We have considered the respective submissions and the evidence on record. There is no eyewitness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen JCRLA No.24 of 2012 Page 9 of 11 {{ 10 }} theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.” 15. In view of the afore-stated legal position, it is discernible that though the last seen theory as propounded by the prosecution in a case based on circumstantial evidence may be a weak kind of evidence by itself to base conviction solely on such theory, when the said theory is proved coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused does owe an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death might have taken place. If the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could be based on such evidence. JCRLA No.24 of 2012 Page 10 of 11 {{ 11 }} 16. So far as the facts in the instant case is concerned, it was duly proved that the death of Samir was homicidal. The accused had taken Samir from the place in front of the house of his grandfather has been proved beyond reasonable doubt and it has also been proved that Samir, lying in the pond situated nearby was detected shortly thereafter when it appears from the evidence that all these happenings are almost as if one transaction with continuity hardly leaving any time gap. 17. On a conspectus of discussion of evidence as hereinabove, we are thus of the view that the finding of guilt recorded by the Trial Court against the accused for commission of the offence under section 302 of the IPC Act is well in order and the accused has rightly been convicted for the offence under section 302 of the IPC and sentenced thereunder. 18. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 27.12.2011 passed by the learned Ad-hoc Additional Sessions Judge, (FTC), Nayagarh in S.T. case No.11/63 of 2011/2010 are hereby confirmed. A.C. Behera, J. I agree. (D. Dash), Judge. (A. C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Gitanjali Reason: Authentication Location: OHC Date: 22-Sep-2023 10:48:33 JCRLA No.24 of 2012 Page 11 of 11