The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO. 563 of 2016 (An appeal U/S 374(2) of the Code of Criminal Procedure, 1973 against the judgment passed by Sri Santosh Kumar Nayak, Additional Sessions Judge, in S.T. Case No. 139/189 of 2013 Nayagarh corresponding to G.R. Case No. 443 of 2013 arising out of Nayagarh Sadar P.S Case No.48 of 2013 of the Court of learned S.D.J.M, Nayagarh). Jaya Behera @ Jayakrushna Behera and another … Appellants State of Odisha … Respondent -versus- For Appellant For Respondent : Mr. A. Mishra, Advocate : Mrs. S. Patnaik, AGA CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING : 28.11.2023 DATE OF JUDGMENT: 08.01.2024 G. Satapathy, J. 1. Instant appeal U/S 374(2) of the Code of Criminal Procedure, 1973 (in short the Cr.P.C.) by the convicts assail the judgment of conviction CRLA No. 563 of 2016 Page 1 of 19 passed on 26.02.2016 by the learned Additional Sessions Judge, Nayagarh in S.T. Case No. 139/189 of 2013 convicting the appellants for offence punishable U/S 302/34 of the IPC and sentencing each of them to undergo rigorous imprisonment (R.I.) for life and to pay a fine of Rs. 10,000/- (Rupees ten thousand only) in default whereof, to undergo further R.I. for three months. 2. The prosecution case in brief is that on 21.05.2013 in the evening, P.W.7-Abhimanyu Behera had come to his maternal uncle9s house in village Petapalli, but he found therein his maternal uncle Jaya Krushna Behera and aunt Amuli Behera, who is the second wife of Jaya Krushna Behera (hereinafter referred to as the convicts) jointly to have administered poison to their daughter namely Runubala Behera (hereinafter referred to as 8the deceased9). Prior to this incident, the convicts were also assaulting CRLA No. 563 of 2016 Page 2 of 19 and threatening to kill the deceased. After administering poison, when the convicts were about to leave, P.W.7 informed to the villagers and accordingly, the convicts were being detained by the villagers. On this incident at about 9.40 P.M. on the same day i.e. on 21.05.2013, P.W.7 lodged an F.I.R. against the convicts vide Ext.10 before the O.I.C., Nayagarh Sadar P.S. P.W.8- Anjali Chhotray, who registered Nayagarh Sadar P.S. Case No. 48 of 2013 against the convicts for commission of offence U/S 302/34 of the IPC and took up investigation of the case, in the course of which, she examined the witnesses, proceeded to the spot, arrested the convicts on the same day, conducted inquest over the dead body under Ext.1 as well as sent the dead body of the deceased for postmortem examination. P.W.8 also seized one mat containing the saliva of the deceased, one pouch namely <sudama CRLA No. 563 of 2016 Page 3 of 19 super gundi= containing danadar granules, one steel tiffin box containing danadar poison, one steel glass containing potassium permanganate (potash) and one blue colour printed saree containing vomiting materials of the deceased under seizure list Ext.2. P.W.8 also forwarded the convicts to the Court on the next day i.e. on 22.05.2013 and she further sent the seized incriminating materials to SFSL, Rasulgarh for chemical examination and the chemical examination report was received in the Court under Exts. 18 and 19. As usual on completion of investigation, P.W.8 submitted charge sheet against the convicts. 3.
Legal Reasoning
Finding prima facie materials, the learned S.D.J.M., Nayagah took cognizance of the offence U/S 302/34 of the IPC and committed the convicts to the Court of Sessions and record being received on transfer, the learned Additional Sessions Judge, Nayagarh finding CRLA No. 563 of 2016 Page 4 of 19 grounds to presume the convicts for committing the murder of the deceased had framed charge against them for commission of offence U/S 302/34 of the IPC resulting in trial in the present case. 4. In support of the charge, the prosecution examined altogether eight witnesses P.Ws. 1 to 8, proved certain documents under Exts. 1 to 19 and identified material objects under MO-I to VI in evidence as against no evidence whatsoever by the defence. Of the witnesses examined by the prosecution, P.W.1 is a witness to extra judicial confession of the accused (convict No.1) whereas P.W.2 is the daughter of the convicts as well as sister of the deceased-cum-sole eye witness to the occurrence and P.Ws. 3 and 5 are the witnesses to the dying declaration of the deceased, P.W.4 is an independent witness to inquest, P.W. 6 is the doctor, who conducted autopsy over the dead body of the deceased CRLA No. 563 of 2016 Page 5 of 19 whereas P.W.7 is the informant and lastly P.W.8 is the I.O. in this case. 5. The plea of the convicts in the course of trial was denial simplicitor and false implication, but the defence has, however, advanced another plea in the course of cross-examination of P.W.2 that the deceased had committed suicide by voluntarily taking poison. 6. After appreciating the evidence on record upon hearing the parties, the learned trial Court convicted the appellants by mainly relying upon the testimony of sole eye witness P.W.2 to the occurrence as well as the oral dying declaration made by the deceased before P.Ws.3 and 5 and the extra judicial confession of the convict No.1 (appellant No.1) before P.W.1. 7. In assailing the impugned judgment of conviction, Mr. A. Mishra, learned counsel for the appellants has submitted that by no stretch of imagination, how the parents could commit such CRLA No. 563 of 2016 Page 6 of 19 heinous crime upon their daughter and there is absolutely no evidence on record to indicate that the appellants had forcibly administered poison upon the deceased. It is further submitted on behalf of the appellants that although the learned trial Court has relied upon the evidence of P.W.2, but she being a child witness aged about 7 years, her evidence cannot be relied upon to be truthful and the other witnesses being not the eye witness to the occurrence, their evidence remained insignificant to corroborate the evidence of P.W.2 and thereby, the prosecution having not established the guilt of the convicts beyond all reasonable doubt, they are entitled to clean acquittal. In summing up his argument, Mr. Mishra has prayed to allow the appeal by setting aside the judgment of conviction and order of sentence passed in this case. CRLA No. 563 of 2016 Page 7 of 19 On the other hand, Mrs. S. Pattnaik, learned AGA, however, by taking this Court through the evidence on record has submitted that the prosecution has amply established the guilt of the convicts for committing murder of the deceased by forcibly administering poison to her, which was clearly found to have been established by the evidence of P.Ws. 1 to 3 and 5 and the defence having not demolished the evidence of above witnesses slightestly in the cross-examination, the conviction of the appellants cannot be questioned. Mrs. Pattnaik, accordingly has prayed to dismiss the appeal. 8. After having considered the rival submissions upon going through the materials placed on record, it appears that the learned trial Court has relied upon the evidence of P.Ws.1 to 3 and 5 to base conviction of the appellants and thereby, it is imperative for this Court to re-appreciate the evidence of these four CRLA No. 563 of 2016 Page 8 of 19 witnesses to find out the sustainability of the impugned judgment of conviction. In a case of murder, the first question required to be answered is the nature of death of the deceased, such as homicidal or otherwise, but in this case, the death of the deceased was never disputed by the defence, rather the defence has advanced the plea in the cross-examination of the P.W.2 that the deceased had committed suicide by voluntarily consuming poison. In this circumstance, it is, thus, imperative to consider the evidence of the doctor, who had conducted autopsy over the dead body of the deceased. P.W.6 is the said doctor, whose evidence tanspires that on 15.09.2013, after perusing all the documents, he submitted the report as follows <the SFSL report reveals phorate commonly known as <Danandar= an organophosphorous insecticidal poison being detected in the produced visceras= and the CRLA No. 563 of 2016 Page 9 of 19 cause of death of the deceased was due to organophosphorous (phorate) compound. It is, therefore, clear that the prosecution has established objectively the death of the deceased was due to consumption of organophosphorous insecticidal poison and such poison was locally known as <Danadar= which was also revealed from the chemical examination report vide Ext.19 since it reveals about the presence of phorate commonly known as <Danadar= an organophosphorous insecticidal poison in the viscera of the deceased. 9. The next question emerges for consideration is whether the deceased had consumed poison on her own? or anybody had administered such poison upon her. In order to reach to a logical conclusion as to who is responsible for the death of the deceased, this Court now proceeds to re-appreciate the evidence of eye witness P.W.2, who is the star CRLA No. 563 of 2016 Page 10 of 19 witness in this case. It is also not disputed that P.W.2 is a child witness and she is the daughter of the convicts. On adverting to her evidence, it appears that the learned trial Court after deciding the competency of the witness to depose evidence in the Court has appended the necessary certificate before recording her evidence. After P.W.2 being found to be a competent witness, she has stated in her evidence that the deceased was her elder sister and she died about two years before the date of her deposition. According to P.W.2, on the relevant day of occurrence at about 5 P.M., her father Jaya Krushna Behera (convict No.1) pressed down her elder sister Runu (deceased) and her mother Amuli Behera forcibly gave <Danadar= poison in the mouth of the deceased and her mother caused the deceased to drink the poison from a steel tiffin which she had kept in a jarry. It appears that PW2 after seeing this CRLA No. 563 of 2016 Page 11 of 19 incident exhibited her natural conduct by calling the outsider and her evidence also appears to be free from any infirmities inasmuch as she in her evidence had simply stated what had happened to her elder sister-the deceased, but the defence in the cross-examination of PW2 has explained the cause of death of the deceased by eliciting from her (P.W.2) lips that when her parents called the deceased, she got up from the mat and the poison which her mother administered upon the deceased was in liquid shape and her father told the object or substance which was administered to the deceased was <Danadar= poison which he had brought. The defence has tried to demolish the evidence of P.W.2, but she was firmly embedded to the ground and she had categorically answered all the questions of the defence. One of the most vital question which was asked by the defence to PW2 was <whether Tuna tutored her=? but her reply was firm that CRLA No. 563 of 2016 Page 12 of 19 nobody has told her about the fact to tell in the Court and Tuna has not tutored her to say anything about the incident in the Court. Even she had gone to the extent of saying that her sister Jhunu has not instructed her as to what she would depose in the Court. It is also elicited from the lips of the P.W.2 that prior to death of the deceased, her eldest sister Jhunu has no visiting terms with her parents9 house. In the circumstance, it appears that the defence has not been able to impeach the evidence of the P.W.2 in any manner. 10. Yet, there are two other important witnesses in this case and they being examined as P.Ws.3 and 5, have categorically stated in their evidence that on being asked, the deceased disclosed before them that her parents had administered poison to her. It is true that P.Ws. 3 and 5 are not the direct witness to the occurrence, but these evidences of oral dying CRLA No. 563 of 2016 Page 13 of 19 declaration of the deceased has never been demolished by the defence in the cross- examination of PWs. 3 & 5, who being the independent witnesses have no axe to grind against the convicts, but the conduct of P.W.3 appears to be quite natural since his evidence transpires that he brought some potassium powder (potash) which is normally known for treating patient consuming poison by getting the patient vomit to extract the poisonous substance from her stomach by drinking such potash powder solution in water. 11. Now coming to the evidence of P.W.1, it transpires that on the relevant day after 10-15 minutes of the occurrence, the convict No.1 Jaya Krushna Behera had come to the house of P.W.1 and cried before him disclosing that he and his wife administered poison to their daughter(deceased) and P.W.1 thereafter, asked Susanta Kumar Das (P.W.4) and Basanta Das CRLA No. 563 of 2016 Page 14 of 19 (P.W.5) of his village to go to the house of the convicts to see what has happened and accordingly, they went to the house of the convicts and found the deceased sleeping on a mat and rolling out of pain and froth was coming out from her mouth and they voluntarily tried to take the deceased to hospital, but their efforts remained in vain because before arrival of the auto to take the deceased, she succumbed. P.W.1 has also testified in the Court that P.W.3 had made the deceased drink potassium water in order to get the deceased vomit the poisonous substance, but their efforts were remained in vain since the deceased died. The defence has made valiant attempt to cross-examine P.W.1, but nothing benefiting the defence was elicited from his mouth. 12. In the aforesaid backdrop of evidence, this Court proceeds to examine the evidence of I.O., who has stated in her evidence that she CRLA No. 563 of 2016 Page 15 of 19 seized one mat containing saliva of the deceased, one pouch <sudama super gundi= containing <Danadar= granule, one steel tiffin containing <Danadar= poison, one steel glass containing potassium permanganate (potas), one blue colour printed saree containing vomiting materials of the deceased and sent all those items to SFSL, Rasulgarh for chemical examination and the chemical examination report under Ext.19 discloses the presence of phorate (commonly known as <Danadar=) an organophosphorus insecticidal poison in the viscera of the deceased. Thus, the above evidence could not appear to have been impeached by the defence and the prosecution is found successful in establishing the death of the deceased to be due to administration of poison to her by the above evidence. 13. On an overall re-evaluation of evidence on record, it appears to the Court that the CRLA No. 563 of 2016 Page 16 of 19 prosecution has established its case against the convicts beyond all reasonable doubt since the evidence of material witness like P.W.2 has never been demolished by the defence in material particular which only go to transpire that the convicts had administered poison to the deceased, who thereafter was under pain and subsequently died. The evidence of P.W.2 was not only of sterling quality, but also is corroborated by the evidence of P.Ws. 3 and 5, who have spoken in their evidence about the oral dying declaration made by the deceased before her death implicating unambiguously the convicts for administering poison to her and such evidence was further invigorated by the evidence of P.W.1, who had gone on testifying in the Court that soon after the occurrence, the convict No.1 namely Jaya Krushna Behera had come to his house and disclosed before him that he and his wife (convicts) had administered CRLA No. 563 of 2016 Page 17 of 19 poison to her daughter which was also not demolished by the defence and last but not the least, the evidence of P.W.5 also supports the evidence of the other witnesses. Further, one of the vital aspects of evidence is the evidence of doctor-P.W.6, who while conducting autopsy over the dead body of the deceased found a dead female foetus of 32 weeks which might be speaking about the motive behind the crime, since the deceased was unmarried and the co- convict namely Amuli Behera was her step mother. In the circumstance, when the evidence of P.W.7 is considered, it appears that P.W.7 being the nephew of the convicts has stated about the conduct of the convicts in torturing and assaulting the deceased prior to her death. In the aforesaid circumstance of evidence, this Court does not find any ground to interfere with the findings of the learned trial Court. CRLA No. 563 of 2016 Page 18 of 19 14. In the result, the appeal sans merit stands dismissed, but no order as to costs. The judgment of conviction and order of sentence passed on 26.02.2016 by the learned Additional Sessions Judge, Nayagarh in S.T. Case No. 139/189 of 2013 are hereby confirmed. I Agree (G. Satapathy) Judge (D.Dash) Judge Orissa High Court, Cuttack, Dated the 8th day of January, 2024/S.Sasmal Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Reason: Authentication Location: High Court of Orissa Date: 10-Jan-2024 14:56:07 CRLA No. 563 of 2016 Page 19 of 19