The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.30 of 2017 In the matter of an Appeal under section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 25.01.2017 passed by the learned Sessions Judge, Sundargarh in Sessions Trial No.78 of 2014. Kedar @ Dambarudhar Rohidas ….. Appellant ---- State of Odisha …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellant - Mr. Sahasransu Sourav, Advocate, For Respondent - Mr. S.S. Mohapatra, Additional Standing Counsel. CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING :17.05.2023 : DATE OF JUDGMENT:21.06.2023 D.Dash, J. The Appellant from inside the jail has assailed the judgment of conviction and order of sentence dated 25.01.2017 passed by the learned Sessions Judge, Sundargarh in Sessions Trial No.78 of 2014
Facts
arising out of Sundargarh Town P.S. Case No.02 of 2014 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Sundargarh. The Appellant (accused), having been charged for commission of offence under section 302 of the Indian Penal Code, 1860 (for short ‘the IPC’), has been sentenced to imprisonment for life and pay fine of JCRLA No.30 of 2017 Page 1 of 10 {{ 2 }} Rs.10,000/- in default to undergo simple imprisonment for a period of two years. 2. The prosecution case is on 03.01.2014 evening, it was around 7 pm, when Trilochan Rohidas (P.W.2) was in his house, his aunt-in-law, Toro Rohidas (P.W.11) came running and told him that his sister had been killed by the accused being set ablaze. Trilochan (P.W.2) being accompanied by his wife (P.W.8) then rushed to the spot and saw the blouse and petticoat of sister burning and his sister then was shouting to save her. Trilochan (P.W.2) then removed her wearing apparels and wife of the informant (P.W.8) covered her body by a blanket and thereafter she was shifted to the Government Hospital, Sundargarh for treatment. On enquiry by the Informant (2), it was known from his sister that her husband (accused) was in the habit of quarreling with her and that after quarreling; he set fire on her by sprinkling kerosene over her body. It was around 8.30 pm, on that day, P.W.2 presented a written report to the Sub-Inspector (SI) of Police (P.W.6), who was in charge of the Inspector-In-Charge (IIC-P.W.1) of Sundargarh Town P.S. Receiving the said written report, P.W.6 treated the same as F.I.R. and registering the case, took up investigation. 3. In course of investigation, the Investigating Officer (I.O.-P.W.6) examined the Informant (P.W.2) and the witnesses, visited the post and prepared spot map, Ext.7. He seized wearing apparels of the deceased as well as that of the accused. He then requisitioned the service of the Executive Magistrate for recording of the statement of the victim, who was then undergoing treatment at Ispat General Hospital (I.G.H.), Rourkela. The statement of the victim was recorded. In course of JCRLA No. 30 of 2017 Page 2 of 10 {{ 3 }} investigation, when victim died, inquest over the dead body was held and report to that effect was prepared, Ext.2. The dead body was then sent for postmortem examination and the report to that effect (Ext.5) was also received. Lastly, the I.O. (P.w.16) has handed over the charge of investigation to the IIC. On completion of investigation, final form was submitted, placing the accused to face the trial for commission of offence under section-498-A/302 of the IPC. 4. Learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Sundargarh having received the Final Form as above, took cognizance of the said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the trial commenced by framing the charge for the said offences against the accused persons. 5. In course of Trial, the prosecution examined in total sixteen (16) witnesses. As already stated, P.W.2 is the brother of the deceased and he is the Informant; whereas P.Ws. 4 & 5 are the father and mother of the deceased and P.W.6 is their neighbor. The brother of P.W.2 (Informant) has been examined as P.W/.7 and P.W.8 is the wife of the P.W.2. Three neighbours have come to the witness box as P.Ws. 9 to 11. The Doctor who had treated the deceased in the District Headquarter Hospital, Sundargarh has been examined as P.W.12; whereas the Doctor who had conducted autopsy over the dead body of the deceased has deposed as P.W.13. P.W.2’s cousin brother is P.W.14. The Executive Magistrate who had recorded the statement of the deceased prior to her death and proved the statement of the deceased which he had been reduced into writing and marked as Ext.6 is P.W.15. Other important witnesses for the prosecution is P.W.14, the cousin JCRLA No. 30 of 2017 Page 3 of 10 {{ 4 }} brother of the Informant (P.W.2), the Investigating Officer has come to the witness box at the end as P.W.16. The prosecution besides leading evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Exts.1 to 9. Out of those, importants are the F.I.R. (Ext.1), the injury report (Ext.4), statement of the deceased recorded by the P.W.15 marked as Ext.6 and the inquest report as well as the postmortem report, which are Ext.2 and Ext.5 respectively. The defence case is that of complete denial and false implication. No evidence has been let in by the accused in the trial. 6.
Legal Reasoning
that part before the police, no such importance, in our view, cannot be taken into account as a contradiction as that not been proved through the I.O. (P.W.16). That apart, when this witness has stated to have not been examined by police, we on record find it different. In view of the fact that the witness hails from rural background and lives on cultivation, his memorizing power and intelligence quotient cannot be taken to be of that level to remember as to what he had stated during investigation. But it having been shown that his evidence is based on falsehood; his evidence in Court under the circumstance and for the discussion must stand. Neighbour of the accused-P.W.9, who is a girl aged about 19 years and was then reading in +3 Arts 2nd year has also stated that when she went to the place and found the deceased in a burning condition, which was somehow put off, the deceased had told regarding the complicity of the accused. During cross-examinaiton, she having been asked that she has no personal knowledge about the same, that has been stoutly denied. She has further stated about the presence of P.W.2 and other members at that time as also the accused. These are all the evidence of the relations of the deceased and accused as well as the villagers. We find absolutely no reason to entertain any doubt over the evidence of these witnesses, when they have stated to have rushed to the spot and to have known of all these witnesses, when they have stated to have rushed to the spot and to have rushed to the spot and known about the incident from the deceased, who had then specifically implicated the accused in causing such burn injuries upon her. JCRLA No. 30 of 2017 Page 8 of 10 {{ 9 }} 10. The Doctor, who had admitted the patient in District Headquarter Hospital, Sundargarh has clearly stated that the patient was conscious and complaining of pain and therefore, she was referred to VSS Medical College and Hospital, Burla for better treatment. The deceased died on 14.01.2014 in the IGH, Rourkela. During that period on police requisition, the P.W.15, the Tahasildar, Rourkela exercising the power of Executive Magistrate has recorded the statement of the deceased on 07.01.2014. It has been stated by him that the deceased was then able to speak and that by putting some question, he had ascertained that she was in a fit state to give her statement. It has been stated by P.W.15 that:- “xxx xxx xxx xxx then on the asked her regarding the cause of injury sustained by her and to that she answered that on last Friday at about 6.30 pm after returning from labour work to her house, when she found her husband asleep, he tried to woke him up. All of a sudden, her husband woke poured kerosene on her body and set her ablaze by lighting match stick.” P.W.15 has further stated that on being specifically asked as to how it all happened; the deceased had implicated the accused. This P.W.15 has stated that he had asked the question to the deceased patient who was then under treatment in Odia language and she also replied in Odia language. It has been stated by him that he had then translated the same in English and wrote on a sheet of paper. It is also his evidence that one female nurse was present at the time and she had put her signature. The recorded statement has been proved by this witness P.W.15 and admitted in evidence and marked as Ext.6. He has provided the explanation that as the hands of the patient were bandaged; signature or LTI of the patient could not be taken. He was JCRLA No. 30 of 2017 Page 9 of 10 {{ 10 }} clearly stated during cross-examination that at the time he recorded the statement of the deceased, no Doctor was present. The Investigating Officer, P.W.16 has stated that having received the information with regard to the shifting of the patient to IGH, Rourkela, he has sent the requisition for recording of the statement of the patient by an Executive Magistrate. The said statement recorded by P.W.15 as Ext.6 and his evidence, we find to be wholly consistent with the evidence of the prosecution witnesses that the deceased had disclosed that it was the accused who had set her ablaze. The evidence of the prosecution as discussed above, being found to be free from any such infirmity, we are of the considered view that the Trial Court has rightly held the same to be the reliable and thus having accepted the same in holding the accused guilty for committing the murder of his wife by sprinkling kerosene upon her body and setting her ablaze, the Trial Court did commit no mistake. The judgment of conviction and order of sentence, therefore, receive the seal of affirmation. 11. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 25th January, 2017 passed by the learned Sessions Judge, Sundargarh in Sessions Trial Case No.78 of 2014 are hereby confirmed. Dr.S.K. Panigrahi, J. I Agree. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Personal Assistant Reason: Authentication Location: OHC Date: 26-Jun-2023 13:54:52 Narayan JCRLA No. 30 of 2017 (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. Page 10 of 10
Arguments
Learned Counsel for the Appellant from the beginning without disputing that the death of the deceased had taken place on account of sever burn injuries received submitted that the prosecution evidence regarding act of the accused that he had set the deceased ablaze is not reliable. According to him, the evidence of prosecution with regard to the role played by the accused in causing the burn injuries over the dead body of his wife (deceased) as placed on being properly appreciated do not establish the said fact beyond reasonable doubt. He further submitted that the dying declaration said to have been made by the deceased from time to time including the one which is said to have been recorded by P.W.15, the Executive Magistrate cannot be accepted as the true version of the deceased. He further submitted that when with such high percentage of burn injuries, the deceased being in a position to speak being highly doubtful, the Trial Court ought not to have relied the version of those witnesses, who have stated that the deceased had disclosed before them that it was the accused who had set her ablaze. In support of the same, he, with great pain, has invited our JCRLA No. 30 of 2017 Page 4 of 10 {{ 5 }} attention to the depositions of all the prosecution witnesses in pointing out infirmities therein standing as impediment for acceptance of said evidence, which would be discussed in the paras to follow. He thus submitted that with the available evidence on record, the prosecution cannot be said to have established the charge against the accused beyond reasonable doubt by leading clear, cogent and acceptable evidence. 7. Learned Counsel for the State-Respondent on the other hand supported the finding guilt of the accused as has been returned by the Trial Court. According to him, the prosecution evidence as placed are wholly reliable and even leaving aside everything, when the evidence of P.w.15, the Executive Magistrate firmly stands, that is enough to fasten the guilt upon the accused for having burnt his wife to death. 8. Keeping in view the submissions made; we have carefully gone through the judgment passed by the Trial Court and we have also extensively travelled through the depositions of the prosecution witnesses i.e. P.Ws. 1 to 16 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 9. 9. In order to address the rival submission and judge the sustainability of the finding of the Trial Court that, it is the accused who had burnt his wife to death, we are called upon to undertake the exercise of detail examination of the evidence on record. First of all, coming to the evidence of P.W.2, the brother-in-law of the accused, who is the Informant and has proved the F.I.R. lodged by him as Ext.1, we find him to have stated that on 03.01.2014 during evening hour one Toro Rohidas (P.W.11) who is a neighbour of the accused came to their house and shouted that the sister of P.W.2 was JCRLA No. 30 of 2017 Page 5 of 10 {{ 6 }} assaulted by her husband and then had been set ablaze. The evidence of this P.W.2 further goes to show the immediate response on hearing about the incident. He states to have immediately rushed to the spot with his wife (P.W.8). He has stated to have seen his sister on fire. It is his further evidence that in order to save the life of his sister, he with his wife put placed clothes upon her and removed her wearing apparels and then immediately shifted her to the Government Hospital at Sundargarh. Most importantly, he states that during this period, his sister (deceased) was repeatedly saying that the accused pouring kerosene upon her had set her ablaze. After admitting his sister in the hospital, he has gone to lodge the written report at the police station. During cross-examination, this witness has re-affirmed about the information being given by P.W.11 to him by coming to his house, which is situated two to three houses apart from house of the accused. He has further stated that at the time of his arrival, the accused was very much present therein silently watching the burning of his wife. We find nothing to have elicited during the cross-examination from this witness as to any element of falsehood as regards his rushing to the spot with his wife. The evidence of this witness, P.W.2 and that of of this witness P.W.8 (wife) is read with the evidence of P.W.11, we find their versions to be quite consistent with one another. P.W.8 has further stated that the accused pouring kerosene upon his wife setting her to fire by igniting a match stick. Her response is equal to that of P.W.2. She has also stated about the presence of the accused at the relevant time inside the house. The defence has not been able to shake the evidence of P.W.8 in any manner so as to cast any doubt on her version that she had accompanied P.W.2 to the place. When above is the evidence of P.Ws.2 and 8. JCRLA No. 30 of 2017 Page 6 of 10 {{ 7 }} The father of the deceased who happens to be the father of P.W.2 states about the strain relationship between the accused and his wife and his rushing to the spot. His further evidence is that his daughter (deceased) then told that the accused pouring kerosene upon her body had set her ablaze by igniting the match stick. So, the evidence of P.W.2, 3 and 8 that the deceased had immediately disclosed, seeing them that it was the accused who had set her ablaze by sprinkle kerosene over her body and lighting match stick appear to be wholly consistent with one another. P.W.5, the mother of the deceased although has not repeated the same version as to what the deceased disclosed before them regarding the role of the accused for setting her ablaze. The version of this P.W.5 appears to be free from any exaggeration, when she does not state to have rushed to the spot hearing about the incident with other members of the family. She also does not state to have heard the deceased telling before them as to what the accused did. She states that the villagers were shouting that the accused had set his wife ablaze. This part of her evidence is not there in her previous statement before the police. But when we find the evidence of other witnesses as already discussed regarding said disclosure being made by the deceased even if for a moment, it is not said that this P.W.5 had not heard anything about the incident from the villagers that does not shake the substratum of the evidence of other witnesses. The P.W.6 has also repeated the same version as regards disclosure of the deceased before them about the accused to have poured kerosene upon her and set her ablaze. P.W.1’s brother-in-law is P.W.7. It is his evidence that after hearing about the hospitalization of the sister of P.W.1, when he had been to the IGH, Rourkela, where the deceased was undergoing JCRLA No. 30 of 2017 Page 7 of 10 {{ 8 }} treatment, he having asked the deceased as to what happened, the deceased had so spoken implicating the accused to have caused such burn injuries upon her. This witness having admitted to have not stated