The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.252 of 2012 In the matter of an Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 31st July, 2010 passed by the learned Additional Sessions Judge, Talcher in C.T. (Sessions) No.04 of 2009. Rama Pradhan ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.Gopal Krushna Mohanty, P.K. Panda, D.Mishra and M.A. Khan (Advocates) For Respondent - Mr.S.K. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 22.01.2024 : Date of Judgment : 29.01.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question judgment of conviction and order of sentence dated 31st July, 2010 passed by the learned Additional Sessions Judge, Talcher in C.T. (Sessions) No.04 of 2009 arising out of G.R. Case No.504 of 2008 CRLA No.252 of 2012 Page 1 of 15 {{ 2 }} corresponding to Kaniha P.S. Case No.70 of 2008 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Talcher. The Appellant (accused) thereunder has been convicted for committing the offence under section 396/201 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.1000/- (One Thousand) in default to undergo further rigorous imprisonment for a period of three (3) months for commission of the said offence. 2. PROSECUTION CASE:- The accused and Gobardhan Pradhan are residents of Village-Ghantianali under Kaniha Police Station in the District of Angul. The accused had arranged a bride groom for her marriage and that could not ultimately be materialized for the obstacles created by the father of Jatra @ Himansu Pradhan, namely, Dushmanta Pradhan and his opposition. It is, therefore, said that out of grudge and to take revenge, on 22.07.2008 around 9.00 a.m., when Himansu, with the nephew of the accused, namely, Alok Pradhan were proceeding towards the school, the accused allured them by giving biscuits and took them towards the tank of their village, locally known as “Dharanibandha”. It is said that the accused pushed Himansu inside the water of the tank and thereby, caused his death. The family members, having come to CRLA No.252 of 2012 Page 2 of 15 {{ 3 }} know about the fact that Himansu, instead of going to school, was found to be towards the Dharanibandha went in search of him and ultimately, they recovered the dead body of the deceased from inside that Dharanibandha and buried the deadbody. Subsequently, getting the information that Himansu along with Alok were going with the accused towards Dharanibandha, a meeting in the village was convened and that was attended by the villagers as well as the accused and her father. In the meeting, it is stated that the accused confessed her guilt before the villagers. Information in writing then to that effect was lodged by Gobardhan Pradhan (Informant-P.W.1) with the Officer-in-Charge of Kaniha P.S. The OIC, treating the same as F.I.R. (Ext.1), registered the case and took up the investigation. 3. The Investigating Officer (I.O.-P.W.18), in course of the investigation, examined the informant (P.W.1) and other witnesses and recorded their statements under section 161 Cr.P.C and he (P.W.16), having deputed a constable to guard the burial place, visited the spot. He (P.W.18) arrested the accused and seized the school-bag of the deceased from the house of one Abadhuta Pradhan under seizure list (ext.3). The I.O. (P.W.18) requisitioned the service of one Executive Magistrate and in his presence, the dead body of the deceased exhumed. Thereafter, he (P.W.18) held inquest over the dead body of the deceased and CRLA No.252 of 2012 Page 3 of 15 {{ 4 }} prepared his report to that effect (Ext.2). The I.O. (P.W.18) sent the dead body of the deceased for post mortem examination and collected the sample water from the pond and seized the same under seizure list (Ext.6). The wearing apparels of the deceased were seized under seizure list (Ext.5). On completion of investigation, the Final Form was submitted placing this accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Talcher, on receipt of the Final Form, took cognizance of the said offence and after observing the formalities committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against the accused. 5. The prosecution, in support of its case, has examined in total eighteen (18) witnesses during Trial. Out of them, the informant is P.W.1. P.Ws.2, 7, 9 to 11 & 15 are the witnesses to the so-called extra judicial confession and out of them, P.Ws.2, 5, 6, 8 & 10 are also the witness to the inquest. P.W.10 is a witnesses to the seizure of wearing apparels of the deceased. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.12. P.W.17 is said to be an eye witness to CRLA No.252 of 2012 Page 4 of 15 {{ 5 }} the occurrence. The I.O. of the case, at the end, has come to the witness box as P.W.18. 6. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 11.
Legal Reasoning
Out of those, the important are, the FIR (Ext.1), the inquest report (Ext.6); the post mortem report (Ext.7); and the spot map (Ext.9). 7. The accused has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of such plea.
Legal Reasoning
8. Mr.G.K.Mohanty, learned counsel for the Appellant (accused) submitted that there is no direct evidence to connect the accused with the crime and the only witness, who had been projected by the prosecution as an eye witness, he being examined, his evidence has not thrown any light on the incident and the prosecution, having cross-examined that witness (P.W.17) with the permission of the Court, it has been able to bring any such material in support of the case especially as to the complicity of the accused. He next submitted that the circumstance that the deceased was last seen with the company of the accused has also not been proved and what P.W.7 has stated on that score is not at all believable. It was also submitted that the so-called confession CRLA No.252 of 2012 Page 5 of 15 {{ 6 }} of the accused before the villagers in the meeting, being not at all free and voluntary and that being under the circumstances, which have emerged in the evidence of P.Ws.2,7,9 & 15, who have so stated, the Trial Court ought not to have accepted the same. He, therefore, submitted that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside. 9. Mr.S.K.Nayak, learned Additional Government Advocate for the Respondent-State, supported the finding of guilt against the accused as has been returned by the Trial court. According to him, the confession of the accused in the village meeting, having been proved through P.Ws.2, 7, 9 & 15, and no such material when is surfacing as regards any threat or coercion upon the accused, the same is believable and thus has been rightly accepted by the Trial Court. He further submitted that on the face of the evidence of P.W.7 as to have seen the deceased with accused as no such explanation has been offered by the accused as to what happened to the deceased thereafter, the provision of section 106 of the Evidence Act since comes into play, the finding would stand that it is the accused, who is responsible for the death of the deceased. 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also CRLA No.252 of 2012 Page 6 of 15 {{ 7 }} extensively travelled through the depositions of the witnesses (P.W.1 to P.W.18) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.11. 11. The death of the deceased, as per the evidence of the Doctor (P.W.12), who had conducted the post mortem examination over the dead body of the deceased, was on account of asphyxia due to drowning. The Doctor (P.W.12), for arriving at such information, has recorded all his findings, which find reflected in his report (Ext.7). The defence has not questioned the evidence of the Doctor (P.W.12) nor findings in his report (Ext.7). In view of the above, now the point boils down that as to who was responsible for the death of Himansu by drowning. The prosecution case from the very beginning is that Himansu and P.W.17 when were going together, the accused called them by giving biscuits and then took them towards the village tank. P.W.17 is child witness and when he deposed in the Court, his age was six years from which we compute his age to be around five years during the occurrence. Although, it has been recorded by the Trial Court that the witness was able to understand the questions put to him and give rational answers and his mental faculty was well developed since he was able to understand all the day-to-day matters, he was not administered oath since the Trial Court found him to be immature to CRLA No.252 of 2012 Page 7 of 15 {{ 8 }} understand the implication of oath. Being asked about the incident, the witness has remained silent. He then gave indications by nodding his head, which the Trial Court had noted that. By that, as observed by the Trial Court, the witness (P.W.17) has meant that he was unable to say anything more about the case. At that stage, the prosecution, having got the permission of the Court, has cross-examined the witnesses. The witness although has admitted to have been examined by the police, he has, however, denied to have stated anything and nothing more has been elicited from him hinting anything against the accused in connection with the incident. He has stated some new facts, which have no connection with the case, as has been presented by the prosecution. Thus, the prosecution case derives no support form the evidence of P.W.17. 12. The other circumstance that the deceased was last seen with the accused. The star witness for the same is P.W.7. He has stated that on that day, he was going to Tarini Temple of their village, which is situated near Dharanibandha and they saw the accused present on the embankment with the son of Abadhuta Pradhan and grandson of Gobardhan. He has further stated that seeing him, the accused asked as to whether he would take bath in the pond and the witness (P.W.7) then denied. As per his evidence, the accused and son of Abadhuta then went towards the mango CRLA No.252 of 2012 Page 8 of 15 {{ 9 }} tope with their goats for grazing and he, during noon hours, came to know that Himansu, grandson of Gobardharn (P.W.1) died due to drowning in Dharanibandha. He states to have gone near Gobardhan and told him about seeing him and the accused. During cross-examination, this witness although has stated to have told before the police that during investigation that when he was going to Tarini Temple, he had seen the accused on the embankment of Dharanibandha with the son of Abhaduta and garandson of Gobardharn (Informant-P.W.1) and that seeing him, the accused asked him as to whether he would take bath in the pond to which he refused, it has been proved through the I.O. (P.W.18) has stated as under:- and grandson “He has not stated before me that while he was going to Tarini Temple, he found accused with the son of Abhaduta on embankment of pond and later on he found accused going towards mango top with the son of Abhaduta to graze goats and that in that meeting, he disclosed that he had seen the accused, who is the deceased and son of Abadhuta at Dharanibandha.” of Gobardhar Such important fact, having not been stated by P.W.7 during investigation when he had the occasion to first disclose, his subsequent version, is found to be a development during the Trial and that being a material contradiction, the evidence of P.W.7 with regard to the last seen theory cannot be believed. CRLA No.252 of 2012 Page 9 of 15 {{ 10 }} 13. Now, comes the other evidence as to the extra judicial confession of the accused. P.W.1, the Informant, who is the grandfather of Himansu (deceased), has stated that there was a meeting in the village and that was convened after he informed about the incident to the President and Members of the Village Committee. He has stated that the meeting was attended by the President and Members of the Committee and the accused and his father had come. As per his evidence, the accused confessed that she had killed Himansu and threw his dead body in the pond. During cross-examination, this witness has stated that in that village meeting, all the villagers were present and Dusasan was the headman of the village. He is unable to say as to whether the proceeding of the meeting was reduced into writing or not. His further evidence is that in that meeting, the accused was assured to be scot-free in case he admits the truth or-else he would be handed over to the police. Simply for this, the evidence of extra judicial confession coming from the lips of P.W.1 is not acceptable since as per his evidence, the statement of the accused made in the village, cannot be said to be free and voluntary. The mental condition of the accused can be well visualized that being called and asked in the meeting, he must be under grave to his life in that place where CRLA No.252 of 2012 Page 10 of 15 {{ 11 }} several villagers were present and thus one’s immediate reaction would be to somehow get rid of the situation in saving his life. P.W.2 when has stated that at the place of meeting, the accused made the confession, his evidence is that in that meeting, he (P.W.2) asked the accused about the allegations and told her to speak the truth whereupon the accused denied the allegations. His further evidence is that thereafter they called Kishori Naik (P.W.7) and Fakir Sahu and asked them about the occurrence and those two witnesses told in the meeting about the accused going towards Dharanibandha with Himansu (deceased) whereafter the accused was asked to speak the truth so that the matter would not be reported to the police and he was assured that the same would be amicably settled and because of that, the accused told the villagers to have killed Himansu whereafter he was detained in the Thakur Ghjar and the matter was report at the P.S. The evidence of this witness (P.W.2) as to the extra judicial confession under the circumstances is also not acceptable. It is the evidence of P.W.3, who is the elder brother of P.W.1 that Alok told them that the accused had killed Himansu. This Alok, being examined as P.W.17, has not stated anything. His further evidence is that after getting such information from Kishore Nayak (P.W.7) that accused was playing with Himansu and Alok near Dharanibandha, he suspected the accused to have CRLA No.252 of 2012 Page 11 of 15 {{ 12 }} the involvement. These two statements run to contrary to one another as at one point of time, P.W.3 says to have heard from Alok (P.W.17) about the role of the accused and he also states to have raised suspicion against the accused in connection with the death of the deceased by hearing from Kishori. As regards the extra judicial confession, in a general way this witness has stated that in a meeting, the accused made extra judicial confession in stating the details that “MU HIMANSURA GODA DUTTA KU DHARI PUCCA PAUCHHA RE BADEIDELI, SE MALA NAI, MO ADAKU ANILA, TAKU GHOSARI NEI PANI BHITARE PAKAIDELI TARA TANTITAKU MADE DELI SE MARIGALA.” The above is not the version of other witness. He also had not stated anything about the extra judicial confession during the investigation and it has been proved through the I.O. (P.W.18). The evidence of P.W.4 also on the score of that extra judicial confession varies from the evidence of other witnesses as already discussed. The words stated by this witness to have been told by the accused have not fallen from the lips of other witnesses providing corroboration. He has further stated that the accused thereafter was detained in Chaupadhi and the Informant (P.W.1) went to the P.S. The evidence of these two witnesses rather disclose that the accused started speaking in the meeting after CRLA No.252 of 2012 Page 12 of 15 {{ 13 }} was given the assurance of not being taken to task, which is seen to be false in view of reporting to police. The evidence of P.W.5 with regard to the extra judicial confession receives the same comments as the evidence of P.W.4. The Secretary of Village Committee (P.W.6) has comeforward with a new story that he asked the accused as to whether she killed Himansu and told her to speak the truth. The accused admitted her guilt saying “MU MO PURBA RAGA THIBARU MARI DEITHILI”. The other witnesses have not stated in this way as to the confession of the accused. The words said to have been used by the accused in making the statement in the village meeting are also not stated by other witnesses. The evidence of P.W.9 is to the effect that in the village meeting, the accused confessed, which too is quite general in nature. This witness had earlier not stated before the police that there was a village meeting in the evening. The I.O. (P.W.18) has stated that the witnesses (P.W.9) had not stated before him to have called the meeting as per the direction of the President and Secretary. P.W.10 states that in the village meeting, the President Dusia Dusasan Pradhan (P.W.2) asked the accused as to how Himansu died and then the accused, on getting the assurance that she would be scot-free and not taken to task, had spoken the CRLA No.252 of 2012 Page 13 of 15 {{ 14 }} words, which he has stated to have been spoken by the accused in the meeting. But those had not been stated before the police during investigation by this witness (P.W.10). The attention of the witness to that statement having been drawn, that has been proved through the I.O. (P.W.18), who has stated that he had not stated before him that the accused admitted in the meeting to have killed Himansu saying “MU NIJE KACHADI DELI NA MARIBAHETU BANDHARE MARI DELI HAMANSU KU MARIDELI”. The evidence of P.Ws.11 & 12 also do not match with the evidence of all the other witnesses, which we have discussed. When P.W.15 has stated that she had heard about the role of the accused in killing the deceased from Alok, that Alok (P.W.17), having not stated anything, the evidence of P.W.15 is of no value. Therefore, the evidence as to the extra judicial confession is not found to be credible on being tested in the touch stone of credibility and acceptability, so that can solely form the basis of conviction. We too do not find any corroborative evidence on this score. Thus, on a conspectus of analysis of the evidence hereinabove, we find that the prosecution has not proved the charge against the accused beyond reasonable doubt by leading clear, cogent and acceptable evidence. CRLA No.252 of 2012 Page 14 of 15 {{ 15 }} 12. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 31st July, 2010 passed by the learned Additional Sessions Judge, Talcher in C.T. (Sessions) No.04 of 2009, are hereby set aside. Since the Appellant, namely, Rama Pradhan is on bail, her bail bonds shall stand discharged. G.Satapathy, J. I Agree. (D. Dash), Judge. (G.Satapathy), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 29-Jan-2024 17:22:54 CRLA No.252 of 2012 Page 15 of 15