The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.648 of 2011 (An appeal U/S.374(2) of the Code of Criminal Procedure, 1973 against the judgment passed by Sri. A.P. Sahoo, Adhoc Additional District and Sessions Judge, First Track Court No.II, Bhubaneswar in Criminal Trial No.2/13 of 2009 arising out of Balianta PS Case No.109 of 2008 corresponding to G.R. Case No.2519 of 2008 of the Court of SDJM, Bhubaneswar) Dukhia @ Ranjan Pati and another -versus- State of Orissa … … Appellants Respondent For Appellants : Mr. G.P. Dutta, Advocate For Respondent : Mr. G.N. Rout, ASC CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :09.10.2023 DATE OF JUDGMENT:04.12.2023 G. Satapathy, J. 1. This appeal assails the judgment of conviction and order of sentence passed on 09.09.2011 by the learned Adhoc Additional District and Sessions Judge, First Track Court No.II, Bhubaneswar in Criminal Trial No.2/13 of 2009, whereby the appellants were convicted for offences punishable U/Ss.436/302/201/34 of IPC and CRLA No.648 of 2011 Page 1 of 21 sentenced to undergo imprisonment for five years with fine of Rs.1,000/- for offences U/Ss.436/34 of IPC, to undergo imprisonment for life with fine of Rs.1,000/- in default whereof, to undergo Rigorous Imprisonment (RI) for further one year for offences U/Ss.302/34 of IPC and to undergo RI for five years with fine of Rs.1,000/- in default whereof, to undergo further RI for one year for offences U/Ss.302/34 of IPC with stipulation of sentences to run concurrently. Factual Matrix 2. On 17.05.2007 at about 2.30 AM, the house of the appellants-convicts was gutted and their niece namely Anusaya Pati died in such house by burning. On receipt of such information over phone at about 6.30 AM, the SI of police PW20, Trilochan Nayak proceeded to the spot in village Pari Basudeipur after informing the OIC Balianta PS and on receipt of report from convict No.1 at the spot, he conducted inquiry and subsequently, registered the same as UD Case No.1 dated 17.05.2007 after reaching at the police station. In course of inquiry, PW20 held inquest over the dead body of the deceased, CRLA No.648 of 2011 Page 2 of 21 sent the dead body for PM examination and examined the witnesses. In the inquiry, the death of the deceased was opined by the doctor to be on account of syncope arising out of burn shock. While the matter stood thus, after a gap of near about 383 days on 04.06.2008 PW15 Janaki Pati, the younger sister of the deceased appeared in news item of OTV and claimed that her deceased-sister was murdered by the convicts and she could not disclose it before anybody out of fear and threat of the convicts. After getting this news, on 06.06.2008 PW7 Sujit Kumar Panda took charge of investigation of UD Case No.1 of 2007 and proceeded to examine Janaki Pati, but during enquiry in UD Case, finding the death of the deceased to be homicidal in nature, PW 7 closed the UD Case and drew
Legal Reasoning
up a plain paper FIR vide Ext.5 and took up the investigation of the case, in the course of which, he proceeded to the village Balarampur, PS Athagarh where the maternal uncle and grandparents of the deceased were staying and ascertained from them that the convicts had assaulted the deceased to death and burnt her to CRLA No.648 of 2011 Page 3 of 21 make out a case of burning. PW7 also examined PW15, the sister of the deceased, who disclosed that her deceased-sister was in love with one Ghania Jena of her village and on 15.05.2007 at night, the said Ghania Jena had come to their house to meet the deceased, which was seen by appellant No.1 namely Ranjan Pati and, subsequently, appellant No.1 assaulted the deceased. On this issue, on the next day on 16.05.2007, the deceased decided to elope with Ghania Jena and, accordingly, on 17.05.2007 at about 1.30 AM in the mid night, the deceased left the house being accompanied by PW15 and DW1 namely Jyoti who is also a cousin of the deceased and PW15, but unfortunately, on the canal bridge, the appellant No.2 caught hold of the deceased and put cloth on her mouth and appellant No.1 slapped her on the base of her left ear and she fell down there and, subsequently, the appellants lifted the deceased to the thatched house and tied PW15 and DW1 on a pole by gagging their mouths and brought petrol and kerosene from the house and poured the same on the deceased and appellant No.1 set the dead body of the deceased on fire along with her CRLA No.648 of 2011 Page 4 of 21 house and, thereafter, the appellant No.1 freed both PW15 and DW1 and threatened them not to disclose the incident before anybody. Due to this, they could not disclose the incident to anyone and, subsequently after being assured, PW15 disclosed the incident in the news item of OTV, which was video graphed and aired in the news of OTV. 3. On the plain paper FIR of PW7, Balianta PS Case No.109 of 2008 was registered and the matter was investigated into by PW28 and in the course of investigation, PW28 examined the witnesses, prepared the spot map vide Ext.14, arrested both the appellants on 09.06.2008 and also seized Hero Honda Splendor Motor Cycle of appellant No.1 and forwarded the appellants to the Court. As usual on completion of investigation, PW28 submitted charge-sheet against the appellants for offences punishable U/Ss.436/302/201/34 of IPC under which cognizance was taken. The appellants were, accordingly, sent to the trial after their denial to the charge. This is how the trial commenced in this case. CRLA No.648 of 2011 Page 5 of 21 4. In support of the charge, the prosecution examined altogether 28 witnesses and proved 15 documents under Exts.1 to 15 as well as identified three material object vide MOI-III as against the sole oral evidence of DW1 Nirupama Tripathy by the appellants. Of the witnesses examined, PW7 is the informant-police officer, PW15 is the eye witness to the occurrence, PW16- Anjana Pati (mother of the deceased), PW17 Basant Kumar Dash (maternal uncle of the deceased), PW20 was the IO in UD Case, PW21 is the doctor, who conducted PM examination over the dead body of the deceased, PW22 is the Cuttack Bureau Chief of OTV, PWs.24 and 25 are the independent witnesses and PW26 is the grandfather of the deceased. 5. The plea of the appellants in the course of trial was one of denial simplicitor and false implication. In addition, the appellants had taken the plea that on the date of occurrence at the relevant time, the deceased went to Thakura room to bring puja articles and cash, but she was accidentally caught with fire and died. CRLA No.648 of 2011 Page 6 of 21 6. On conclusion of trial and after appreciating the evidence on record upon hearing the parties, the learned trial Court convicted the appellants by the impugned judgment and sentenced them to the punishment indicated supra. The learned trial Court convicted the appellants mainly on the evidence of PW15 to 17 and 22 and 26. Rival Submissions 7. In assailing the impugned judgment of
Legal Reasoning
conviction and order of sentence, Mr. G.P. Dutta, learned counsel for the appellants has assidulously submitted that the learned trial Court has misdirected itself while appreciating the evidence on record and it has never considered the delay of more than one year for lodging of the FIR, which itself creates a big suspicion to the veracity of the prosecution case. It is further submitted by him that when PW15 did not speak about the occurrence for more than a year, her evidence cannot be considered to be reliable in view of the fact that although she was all along present with DW1 at the time of occurrence, but she preferred not to speak about the CRLA No.648 of 2011 Page 7 of 21 incident, rather her earlier statement before the police was not incriminating any of the appellants. It is also submitted by him that the ocular evidence of PW15 was at variance with medical evidence and she does not reveal about the homicidal death of the deceased, but the learned trial Court has fallen in error by holding the nature of death of the deceased to be homicidal. It is further submitted by him that when the learned trial Court has believed the evidence of PW15, but how it has disbelieved the evidence of DW1, since she was stated to be present at the time of occurrence and no possible reasoning has been assigned by the learned trial Court as to why it disbelieved the evidence of DW1 and on comparative analysis of evidence of PW15 on one hand, DW1 and PW21-doctor on the other hand, the prosecution case would be found to have no leg to stand and the appellants cannot be convicted for any offence. On the aforesaid submissions, Mr. Dutta, learned counsel for the appellants has prayed to allow this appeal by setting aside the conviction and sentence of the appellants. CRLA No.648 of 2011 Page 8 of 21 8. On the other hand, Mr. G.N. Rout, learned ASC, however, has submitted that although there was a delay of 386 days in lodging of FIR, but the delay by itself cannot destroy the prosecution case, especially when the delay has been properly explained. Mr. Rout has also submitted that the learned trial Court has rightly believed the evidence of PW15 by discarding the inadmissible evidence of DW1 who being a relative of the appellants, had deposed falsehood because her family was being maintained by the appellants. Mr. Rout has, however, submitted that the learned trial Court has not committed any illegality in convicting the appellants and thereby, the appeal deserves no consideration. He, accordingly, has prayed to dismiss this appeal. Analysis of law and evidence 9. In order to examine the legal sustainability of the impugned judgment of conviction and order of sentence, this Court now proceed to examine and scrutinize the entire evidence on record by re-appreciating it in the light of rival submissions. At the outset, it is reminded that admittedly there is a long delay of 386 days in lodging of CRLA No.648 of 2011 Page 9 of 21 FIR in this case, but Law is also well settled that delay in lodging of FIR is not always fatal to the prosecution case, unless such delay has caused exaggeration or embellishment in the FIR causing prejudice to the accused or it is shown by the accused that such delay was committed with an intention to fabricate the case against him. In this case, there is of course delay of considerable period, but the same needs to be examined with the evidence on record. It appears from the impugned judgment that the learned trial Court has mainly relied upon the evidence of PW15 by considering her to be an eye witness to the occurrence and it is, therefore, imperative to examine the evidence of PW15 at the first instance. The evidence of PW15 transpires that the appellants are her uncles and the deceased was her elder sister and she has passed matriculation. According to PW15, her deceased- sister was in love with one Ghania Jena of her village, but the appellants who are their uncles (parental uncles) opposed to that love affair since Ghania Jena belongs to lower caste and they are Brahmin by caste and at the relevant time of occurrence, she and her deceased-sister were staying in one and same house with the appellants CRLA No.648 of 2011 Page 10 of 21 along with their family members. It is the specific evidence of PW15 that the appellants were also assaulting his sister(deceased) due to her above love affair. On coming to her main evidence, PW15 has testified in the Court that on 15.05.2007 at night the deceased had talked with Ghania Jena inside their house which was noticed by appellant No.1, who drove Ghania Jena from their house and he severely assaulted the deceased and she had seen the entire incident so also her cousin-DW1 and her grandmother. It is further revealed from the evidence of PW15 that on the same day at about 11.30 PM in the night, the deceased told that she would go with Ghania Jena which was also heard by DW1 and, accordingly, at about 1 AM in the mid night, the deceased by carrying some wearing apparels left the house being accompanied by PW15 and DW1, but she was caught hold off by appellant No.2, who put a cloth on her mouth and in the meantime, appellant No.1 severely assaulted the deceased by giving fist blows on her both ears by which the deceased died at the spot and, thereafter, both the appellants brought the dead body of the deceased to their Thakuraghar and confined in the said Thakuraghar and both the appellants CRLA No.648 of 2011 Page 11 of 21 assaulted PW15 and DW1 and tied them in a pillar and their grandmother Rama Pati sat near the said pillar and, thereafter, both the appellants set fire to the said Thakuraghar by pouring petrol and kerosene on the body of the deceased and thereafter, the appellants threatened them not to disclose the entire fact to anybody and out of fear, she did not disclose to anybody. 10. At this stage, this Court feels it proper to come to the medical evidence which would be very important in the circumstance because PW15 had stated that the deceased died due to assault by the appellant No.1 and she was set with fire after pouring kerosene, but the doctor PW21, who had conducted autopsy over the dead body of the deceased has testified in the Court that the cause of death of the deceased was syncope arising out of burnt shock, but PW21 has never said to have noticed any injury on the person of the deceased nor is his evidence disclosed about cause of death due to assault. Had the death been taken place due to assault of the appellant No.1 on the ear of the deceased, it would have been definitely found by PW21 who has admitted in cross CRLA No.648 of 2011 Page 12 of 21 examination that at the time of PM examination, smell of petrol or kerosene or diesel was not coming out from the dead body of the deceased and if petrol or kerosene or diesel could have been used, then some smell could have been detected. In the circumstance, the evidence of PW21 clearly at variance with the ocular evidence of PW15. Firstly, the death was on account of syncope arising out of burnt shock, whereas according to PW15 death was due to assault by appellant No.1 on the ear of the deceased and secondly, no traces of petrol or kerosene or diesel was detected on the body of the deceased by the doctor, whereas the evidence of PW15 clearly indicates use of petrol and kerosene by the appellants. 11. On the contrary, learned trial Court by holding the death of the deceased to be homicidal has observed that use of inflammable cannot be ruled out for setting the deceased to fire by assigning the reason “as there was no smell of burn clothes except only the smell of burn skin coming out of the body since there was no trace of cloth on the body, the clothes worn by the CRLA No.648 of 2011 Page 13 of 21 deceased and also the clothes used to gag her mouth were completely destroyed by fire, which were used as an aid(item) in pouring the inflammable to burn the deceased and, therefore, there may not be smell of petrol or kerosene or diesel detected on the deceased, but such theory or explanation as offered by the learned trial Court appears to be wholly unacceptable, especially when there appears specific evidence of PW15 that the appellants poured petrol and kerosene on the dead body of the deceased to set her on fire, in addition to what transpires from the cross-examination of PW21 that had the body of the deceased being burnt by use of petrol or kerosene or diesel, the smell of petrol or kerosene or diesel could have been detected. Besides, PW20- who had conducted inquest over the dead body of the deceased, has also admitted in the cross examination that he did not find any smell of petrol or kerosene or diesel from the body of the deceased and he also did not find any candle, match box or lighter excepting the half burnt bamboo sticks. The prosecution has also not able to establish that any inflammatory substance was used to burn the dead body. CRLA No.648 of 2011 Page 14 of 21 12. Yet another important evidence has been looked down by the learned trial Court which is the evidence of DW1, as it has refused to accept the evidence of DW1 by assigning the reason that DW1 and her family members were being maintained by the appellants, but such reason is quite not acceptable, especially when no suggestion was even put forth to DW1 that she was supporting the appellants as they(appellants) were maintaining her family members. It is also very important that PW15 has testified in the Court that at the time of occurrence, she and DW1 had accompanied the deceased. It therefore, appears to the Court that when one witness claiming herself to have witnessed the occurrence along with another witness, but the other witness is not at all supporting the claim of former witness in respect of occurrence and the same assumes great significance when the former witness for the first time stating about the occurrence against the persons who were earlier not held responsible by her, in the news item of a media channel after a gap of more than one year which makes her evidence quite suspicious and it CRLA No.648 of 2011 Page 15 of 21 would not be safe to accept such evidence of a witness who can be categorized as not wholly reliable without any corroboration. 13. Additionally, PW15 in her evidence has also stated that about 3 to 4 months after the occurrence, OTV staff came to her and before OTV she expressed her real fact, but PW15 has not approached the police thereafter for around 9 to 10 months, which in the circumstance, appears to be not only fishy, but also doubtful. Quite understandably, PW15 had in fact got sufficient time to disclose about the incident, no matter she came up with a theory subsequently that due to threatening of the appellants, she could not state the matter to anybody, but when she could disclose the matter to OTV staff after 3 to 4 months of the occurrence, what prevented her not to disclose about the incident before her mother, brother and Grandparents and to the police for 9 to 10 months after disclosing the same before news channel. Logically it can be proved, had there been any ring of truth in the evidence of PW15 she could have narrated the incident to others on whom CRLA No.648 of 2011 Page 16 of 21 he reposed trust and faith, like her family members, but there appears no evidence to that effect. PW15 has also admitted in the cross examination that she had also not disclosed the incident before PW7, and excepting to the family members of her maternal uncle, she had not disclosed about the occurrence to anybody else. It again appears doubtful, since the family members of PW15 being examined as PWs.16, 17 and 26 in this case had also not lodged any FIR after learning about the incident from PW15. It is also not forth coming as to when PW15 disclosed about the incident before PW16, who is her mother. Further, the testimony of PW22, who is the OTV bureau head, revealed that in July, 2007 on receipt of an anonymous call, they(OTV team) ascertained about the incident from PW15, but they had never informed the police. It is also not quite convincing that they knew about the incident in July, 2007 & they aired the news article in the year 2008 and informed the police thereafter, but what prevented them not to inform the police soon after receipt of the information in July, 2007 and the news channel being a responsible channel should CRLA No.648 of 2011 Page 17 of 21 have informed the police soon after receipt of the information and there was also no impediment for the news channel to inform the police. It is also not forth coming from the evidence of PW22 as to when they recorded the CD and who had given the information to them. 14. In the circumstance, the evidence of PW20 appears to be very much relevant inasmuch as soon after the incident, he had conducted the inquiry in the UD Case, but the cross examination of PW20 discloses that nobody had stated before him about the source of fire and during the spot visit, he had examined the villagers and relatives of the deceased including PW15 and DW1 later on and enquired about the sources regarding cause of death of deceased, but during his inquiry nobody complained before him that the appellants committed murder of the deceased. One of another important aspect that the prosecution has failed to examine the said Ghania Jena, although it comes from the evidence of PW15 that the appellants were opposed to the relationship of the deceased with Ghania Jena. The CRLA No.648 of 2011 Page 18 of 21 learned trial Court has come up with a reasoning that since Ghania Jena was working outside country, he could not be examined, but in a case of this nature, when the evidence appears to be not inspiring, the prosecution must have to come out with clear the evidence by taking necessary steps for examination of Ghania Jena. The learned trial Court has, however, taken into consideration the plea as advanced by PW15 about the motive behind crime and intention of the appellants, but such motive leading to intention of the appellants has not been established by the prosecution beyond all reasonable doubt. It is also not convincing as to why the evidence of DW1 would be disbelieved on this score. Had there been any relationship of the deceased with Ghania Jena, it would have been deposed to by DW1 or the prosecution could have elicited from her mouth. PWs.16, 17 and 26 were post occurrence witnesses and they had derived their knowledge about the incident from PW15 whose evidence appears to be not only shaky, but also doubtful, since a person after knowing the murder of his/her near or dear one could not have remained silent and would CRLA No.648 of 2011 Page 19 of 21 come out for the first time through a news article telecasted by OTV media, who had also not explained to clear the doubt and as to why it remained silent from the date of receipt of such information till the date of telecasting such news item in the channel. In the aforesaid evidence and circumstance, the explanation for delay in lodging of FIR for 386 days appears to be unacceptable and it is fatal to the prosecution case. 15. On a cumulative analysis of evidence of PWs.15, 20, 21, 22 and 26 as well as the other evidence on record, this Court is of the considered view that the prosecution case is shrouded with mysteries and doubts which could not be cleared by the prosecution and, thereby, the appellants are entitled to benefit of doubt. The prosecution was also not been able to offer any explanation for the delay of 386 days in lodging of FIR or coming out to state about the incident after a gap of one year and the evidence of PW15, the so called eye witness to the occurrence is of no relevance and very much doubtful. In such circumstance, this appeal by the appellants not only merits consideration, but also CRLA No.648 of 2011 Page 20 of 21 required to be allowed, since the impugned judgment of conviction and order of sentence are unsustainable in the eye of law. 16. In the result, the appeal stands allowed. As a logical sequitur, the impugned judgment of conviction and order of sentence passed by the learned Adhoc Additional District and Sessions Judge, First Track Court No.II, Bhubaneswar in Criminal Trial No.2/13 of 2009 are hereby set aside. 17. Since the appellants are on bail upon appeal, they are discharged of their bail bonds. I Agree (G. Satapathy) Judge (D.Dash) Judge Orissa High Court, Cuttack, Dated the 4th day of December, 2023/Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 05-Dec-2023 17:57:51 CRLA No.648 of 2011 Page 21 of 21