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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.66 of 2011 (An appeal U/S 383 of the Code of Criminal Procedure, 1973 against the judgment passed by Sri B.N. Das, Ad hoc Addl. Sessions Judge, FTC No.3, Bhubaneswar in C.T. Trial (Sessions) No. 15/200 of 2010 corresponding to G.R. Case No. 1572 of 2010 arising out of Mahila P.S Case No.72 of 2010 of the Court of SDJM, Bhubaneswar). Surya Naik … Appellant State of Odisha … Respondent -versus- For Appellant : Mr. A.K. Sarangi, Advocate For Respondent : Mr.G.N. Rout, ASC CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :04.10.2023 DATE OF JUDGMENT:04.12.2023 G. Satapathy, J. 1. This appeal assails the impugned judgment of conviction and order of sentence passed on 27.06.2011 by Ad hoc Addl. Sessions JCRLA No.66 of 2011 Page 1 of 16 Judge, FTC No.3, Bhubaneswar in C.T. (Sessions) 15/200 of 2010 convicting the appellant for offence U/Ss. 498-A/ 302 of the Indian Penal Code, 1860 (In short the 8IPC9) and sentencing him to undergo imprisonment for life for offence U/S. 302 of the IPC and to undergo rigorous imprisonment for a period of three years for offence U/S 498-A of the IPC with direction for running of the sentence concurrently. An over view of prosecution case 2. One Chanchala Naik (hereinafter referred to as the <deceased=) had married to the appellant, but the appellant being a drunkard was regularly assaulting her and the deceased being not able to tolerate, had earlier gone to her parental house, however, the appellant had taken back the deceased to his house by assuring PW3 Haribandhu Behera not to assault the deceased again. However, on 06.06.2010 at about 11.30 P.M. in the night, the appellant came to the house of P.W.3 and informed JCRLA No.66 of 2011 Page 2 of 16 him about the death of the deceased lying dead at Capital Hospital, Bhubaneswar. On suspicion, P.W.3 lodged an F.I.R. (Ext.3) against the appellant before the I.I.C., Mahila P.S., Bhubaneswar U.P.D. on 07.06.2010 at about 10.30 A.M., which paved the way for registration of Mahila P.S. Case No. 72/10 of 2010 for offences U/Ss. 498-A/302 of the IPC with commencement of investigation by P.W.14 Sunirmala Nayak, who in the course of investigation examined and recorded the statement of the witnesses, got the autopsy done over the dead body and obtained postmortem report under Ext.1 and opinion of doctor under Ext.2, which indicates the saree produced before him not compatible with ligature mark found on neck of the deceased. As usual on completion of investigation, P.W.14 submitted charge sheet against the appellant resulting in trial in the present case after denial by the appellant to the charge for offences U/Ss. 498- A/302 of IPC. JCRLA No.66 of 2011 Page 3 of 16 3. In support of its case, the prosecution examined altogether fourteen witnesses and relied upon documents under Ext.1 to 12 and material objects M.O.-I to M.O.-V as against no evidence whatsoever by the defence. Of the witnesses, P.Ws.1 & 2 are the Doctors, P.Ws. 3, 4 and 8 are the parents and brother of the deceased, whereas P.Ws. 5 to 7 and 9 to 13 are the independent witnesses and lastly, P.W.14 is the I.O. 4. The plea of the appellant in the course of trial was false implication and he is innocent of the offence. 5. After appreciating the evidence on record upon hearing the parties, the learned trial Court convicted the appellant by mainly relying upon the evidence of Doctors and that of P.Ws 3, 4 and 8. Rival submissions 6. In assailing the impugned judgment of
Legal Reasoning
by this Court in Misc. Case No. 54 of 2015, his bail bonds upon appeal stands cancelled/discharged. I Agree (G. Satapathy) Judge (D.Dash) Judge Orissa High Court, Cuttack, Dated the 4th day of December, 2023/S.Sasmal Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Reason: Authentication Location: High Court of Orissa Date: 05-Dec-2023 18:26:35 JCRLA No.66 of 2011 Page 16 of 16
Arguments
conviction, Mr. A.K. Sarangi, learned counsel for the appellant has submitted that there is no direct JCRLA No.66 of 2011 Page 4 of 16 evidence available against the petitioner, but the learned trial Court was swayed away by the hearsay evidence of the parents and brother of the deceased to convict the appellant without appreciating the evidence in proper prospective. It is further submitted by him that on a fair look to the impugned judgment, it would be said that the learned trial Court might have resorted to Section 106 of the Evidence Act to convict the appellant, but there is absolutely no evidence to infer the guilt of the accused for any offence. In concluding his argument, Mr. Sarangi has prayed to allow the appeal by setting aside the impugned judgment of conviction and sentence as recorded against the appellant. In reply, Mr. G.N. Rout, learned ASC by supporting the impugned judgment has submitted that the learned trial Court has not committed any illegality in convicting the appellant since the appellant was the husband of the deceased, who JCRLA No.66 of 2011 Page 5 of 16 died in their house and thereby, the appellant was having the special knowledge as to the cause of death of the deceased, but he having not offered any explanation thereto was thereby guilty of the offence for committing murder of his own wife, which is clearly established by the evidence of the parents and brother of the deceased about the accused assaulting the deceased regularly in an intoxicated condition. In this way, Mr. Rout has prayed to dismiss the appeal. Analysis of law and evidence 7. Gone through the impugned judgment of conviction minutely as well as the evidence on record extensively keeping in view the rival submissions to find out the legal sustainability of the conviction of the appellant. Indisputably, it is neither a case of direct evidence nor the learned trial Court has based the conviction on the evidence of any eye witness to the occurrence, but the learned trial Court has found the appellant guilty of JCRLA No.66 of 2011 Page 6 of 16 the offence punishable U/S 302 of the IPC mainly relying upon the circumstantial evidence as culled out from the evidence of the parents and brother of the deceased examined as P.Ws. 3, 4 and 8 as well as the last seen theory and non explanation of the convict-appellant as to how the deceased suffered homicidal death. 8. True it is that the evidence of P.W.1 who is the main doctor conducting the postmortem examination, transpired that the cause of the death of the deceased was due to asphyxia for strangulation, but the saree sent to him by the I.O. for examination and opinion about possibility of causing death to the deceased by the said saree (M.O.-I) was answered negatively by him, which was further clarified in cross-examination that the ligature mark found on neck of the deceased could not be possible by the said saree (M.O.-I). The evidence of P.W.1 further transpired that on autopsy on the dead body of the deceased, he had JCRLA No.66 of 2011 Page 7 of 16 found lacerated injury of size 1= x .5= x .5= just posterior to right angle of mandible above the ligature mark and one ligature mark on neck 1= below the chin circular, horizontal & dark in colour and 1= in breadth predominantly marked on the right inter-lateral aspect of the neck, but no knot mark was found. On taking this aspect of the evidence, the learned trial Court has, of course, rightly inferred the death of the deceased due to strangulation, but it is not enough to say that the prosecution has established the guilt of the appellant for offence U/S 302 of IPC, unless the evidence establishes that the appellant was responsible for the death of the deceased. 9. Quite understandably, the learned trial Court has held the appellant liable for committing Uxoricide by heavily relying upon the circumstance of last seen theory, which was not at all established by the prosecution through any credible, clear, cogent and reliable evidence. It is not disputed that JCRLA No.66 of 2011 Page 8 of 16 the deceased was the wife of the appellant, but that perse does not establish the last seen theory. In order to establish the last seen theory, the prosecution has to prove through legally admissible evidence that the deceased was last seen with the appellant just before her death or the time gap between the last seen together and the death of the deceased so proximate that it excludes the involvement of any third person in accomplishing the homicidal death of the deceased. 10. In this case, none of the witnesses had ever stated that the deceased was last seen together with the appellant just before her death. P.Ws. 3, 4 and 8 being the parents and brother of the deceased were staying separately and their evidence does not indicate any last seen theory. On the other hand, P.W.5 had testified nothing against the appellant and according to his evidence, on the next date morning of occurrence; he came to know that the appellant had taken his wife (deceased) to JCRLA No.66 of 2011 Page 9 of 16 the Capital Hospital, Bhubaneswar. P.W.6 had stated nothing against the appellant, but the testimony of P.W.7 transpired that one night when he returned with his auto, the appellant asked him to take the deceased to hospital and he, accordingly, arranged an auto-rickshaw and took the deceased to the Capital Hospital, Bhubaneswar. On scrutiny of evidence of P.W.9, it transpired that on the night of occurrence, the appellant had informed that the deceased was dead. Similar is the evidence of P.W.10. On the other hand, the testimony of P.W.12 transpired that at the time of occurrence, the appellant came to chhak of their basti and informed them that his wife had become unconscious and, accordingly, the deceased was shifted to Capital Hospital, Bhubaneswar. It is, of course, elicited from the mouth of P.W.13 that the deceased was residing with appellant in their basti in a separate house constructed by P.W.3, but he JCRLA No.66 of 2011 Page 10 of 16 or his family members does not go to the house of the appellant as the deceased quarrels with them. 11. On a close and careful scrutiny of evidence of aforesaid witnesses, this Court does not find a single word against the appellant to have been last seen together with the deceased, but the learned trial Court had been swayed away by emotion to observe that since the appellant was torturing the deceased and they often quarreled, the appellant was the author of the crime which was not at all substantiated by the prosecution and such observation of the learned trial Court is not fortified by any legally admissible evidence. Yet, it seems in the circumstance that the learned trial Court had placed the burden on the appellant in terms of Section 106 of the Indian Evidence Act to explain as to how the deceased died, but Section 106 of the Indian Evidence Act is an exception to Section 101 of the Evidence Act, which lays down the general rule of burden of proof. However, Section 106 JCRLA No.66 of 2011 Page 11 of 16 provides some relaxation to the prosecution, once the foundational facts are proved by it since Section 106 reads as <when any fact is especially within the knowledge of any person, the burden of proving that fact is on him.= It, therefore, clearly appears that the Section itself lays stress on the word <especially=. Section 106 of the Indian Evidence Act by no stretch of imagination relieves the prosecution of its duty to prove its case against the offender beyond all reasonable doubt. This Section has been enacted to meet certain exceptional cases/exigency in which it would be impossible, or at any rate difficult for the prosecution to establish facts which are especially within the knowledge of the accused, but if the Section is otherwise interpreted, it would lead to an anomalous/startling situation. In no circumstance, the burden of proof can be placed on the accused to establish his innocence, rather the prosecution must discharge the initial burden by proving the foundational facts JCRLA No.66 of 2011 Page 12 of 16 for invoking the provision. In the present case at hand, had it been established by the prosecution that the deceased and the accused were last seen together just before the death of the deceased or the time gap was so small, the possibility of involvement of third person is reasonably ruled out, the provision of Section 106 of the Evidence Act could have been invoked to ask the appellant to explain as to how the deceased died. Even otherwise, the evidence consistently disclose that the appellant had requested P.Ws. 7 and 12 to take his wife (deceased) to the hospital and he also informed P.Ws. 3, 4 and 8 about the deceased lying dead at the Capital Hospital, Bhubaneswar. 12. Additionally, the I.O.-P.W.14 had admitted in his cross-examination that, he has not inquired as to who were residing in the said house and other house hold articles were also lying in the said house of the appellant and he had not noticed any mark of violence at the spot. It appears that some of the JCRLA No.66 of 2011 Page 13 of 16 witnesses i.e. P.Ws. 3,4, and 8 had stated about the appellant subjecting the deceased to torture and cruelty and he was assaulting her in an inebriated condition, but that evidence being omnibus in nature is not sufficient to bring home the guilt of the accused for offence U/S 498-A of the IPC. Besides, there is no evidence available on record to indicate any motive behind the crime which also assumes importance in the circumstance. Thus, on a meticulous conspectus and re-appreciation of evidence on record and keeping in view the findings arrived at by the learned trial Court in the impugned judgment of conviction without appreciating the evidence in right direction, this Court has no hesitation to conclude that the prosecution was unable to substantiate its case against the appellant beyond all reasonable doubt and the circumstance as relied upon by the learned trial Court appears to be well short of proof to hold the appellant guilty of JCRLA No.66 of 2011 Page 14 of 16 committing Uxoricide. On scrutiny of evidence, this Court does not find any chain of circumstance so complete unerringly pointing towards the guilt of the appellant and, therefore, the impugned judgment of conviction and order of sentence passed by the learned Ad-hoc Additional Sessions Judge F.T.C. No.3, Bhubaneswar in C.T. (Sessions) Case No. 15/200 of 2010 being unsustainable are liable to be set aside. 13. Accordingly, the appeal is allowed. Consequently, the impugned judgment of conviction and sentence of the appellant passed by the learned Ad-hoc Additional Sessions Judge F.T.C. No.3, Bhubaneswar in C.T. (Sessions) Case No. 15/200 of 2010 are hereby set aside and the appellant is acquitted of the charge for offences U/Ss 498-A/302 of the IPC. 14. Since the appellant was directed to be released on bail by an order passed on 09.04.2019 JCRLA No.66 of 2011 Page 15 of 16