MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.211 of 2023 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 26th December, 2022 passed by the learned Additional Sessions Judge, Padampur in C.T. Case No.28 of 2018. Reena Sahu ---- -versus- …. Appellant State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. Satyabrata Panda (Advocate) For Respondent - Mr.S.K. Nayak Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 24.04.2024 : Date of Judgment : 01.07.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 26th December, 2022 passed by the learned Additional Sessions Judge, Padampur in C.T. Case No.28 of 2018 arising out of G.R. Case No.632 of 2017 corresponding to Jagdalpur P.S. Case No.94 of CRLA No.211 of 2023 Page 1 of 14 2017 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Padampur. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, she has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for one (1) year for commission of the said offence. 2.
Legal Reasoning
PROSECUTION CASE:- As it reveals from the First Information Report (F.I.R.-Ext.P- 1) lodged by Harman Barik, the Grama Rakhi (P.W.6) attached to Jagdalpur Police Station (P.S.) with the Inspector-in-Charge of Jagdalpur P.S. stating therein that on 28.08.2017 around 5.00 p.m., he got the information that first wife of Motilal Sahu, namely, Padmini had been murdered by the present accused, who happens to be the other wife of Motilal and that after committing the murder, she had fled away. The Informant (P.W.6), getting the information had been to the spot, i.e., the house of Motilal and seen Padmini was lying dead on a cot with bleeding injury on her right side neck near the ear had also seen an axe lying near there. The incident, being informed to the Ward Member and other villagers, he (P.W.6) came to know that there was dispute between the accused and the deceased and the death had been caused for the said reason and that the accused, having Page 2 of 14 CRLA No.211 of 2023 committed the murder of Padmini, had left the house with her infant daughter aged about one and half years. On receipt of the above report, the I.I.C. (P.W.20) treated the same as FIR (Ext.P-1) and upon registration of the criminal case, took up the investigation. 3. The Investigating Officer (I.O.-P.W.20), in course of the investigation, examined the informant (P.W.6) and recorded his statement under section 161 Cr.P.C. He (P.W.20) proceeded to the spot and examined the mother-in-law of the deceased, but count not prepare the spot map as it was night. On the next day, i.e., on 29.08.2017, he (P.W.20) he, having again visited the spot, prepared the spot map (Ext.P-16), held the inquest over the dead body of Padmini and sent the same for post mortem examination by issuing necessary requisition. A blood stained axe had been seized by the I.O. (P.W.20) under seizure list (Ext.P-4) and the blood soaked gauge, sample earth from the spot, blood stained earth had been seized under Ext.P-3. On the day of arrest of this accused, the I.O. (P.W.20) seized her wearing apparels under seizure list (Ext.P-10) and she (accused) has been sent for her medical examination. The seized incriminating articles were sent for chemical examination through Court. On completion of the investigation, the I.O. (P.W.20) submitted the Final Form placing CRLA No.211 of 2023 Page 3 of 14 this accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Padampur, 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 this accused. 5. The prosecution, in support of its case, has examined in total twenty (20) witnesses during trial out of twenty-three (23) charge-sheeted witnesses. Out of them, as already stated, the informant, who is the Grama Rakhi is P.W.6 whereas the scribe of the FIR (Ext.1) is P.W.1. P.W.11 is the father-in-law of the deceased and a seizure witness whereas P.Ws.13 & 19 are the mother-in-law & uncle of the deceased. P.Ws.2, 4, 7, 8, 9 & 10 are the witnesses to the inquest and out of them P.Ws.4 & 9 are also the witnesses to the seizure. The person, before whom the accused gave her statement, has been examined as P.W.12. P.W.5 is an independent witness and P.Ws.14, 16, 17 & 18 are the police officials and witnesses to the seizure. The Doctor, who conducted the autopsy over the dead body of Padmini has been examined as P.W.15. The I.O. of the case, at the end, has appeared in the witness box as P.W.20. CRLA No.211 of 2023 Page 4 of 14 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 17. Out of those, the important are, the FIR (Ext.P-1), the spot map (Ext.16), inquest report (Ext.P-2); the post mortem report (Ext.P- 13). The chemical examiner’s report had been admitted in evidence and marked Ext.C-1. 7. The accused has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of said plea.
Legal Reasoning
8. Mr.S. Panda, learned counsel for the Appellant (accused) submitted that the prosecution case is not based on direct evidence and for the purpose, the prosecution relies upon the circumstantial evidence such as the motive and that Padmini (deceased) was seen with the accused in the said house prior to the incident. He further submitted that the evidence as regards the motive is not that clear and cogent and also there is no such acceptable evidence that this accused shortly before the incident was very much present in the house where the deceased was there and the husband of the present accused as also the deceased having died some after the incident, the prosecution has not been able to tender his evidence in the trial, which would have thrown the light on that score. He further submitted that the evidence of CRLA No.211 of 2023 Page 5 of 14 P.Ws.11 & 13, which have been relied upon by the Trial Court, are wholly unacceptable and, therefore, basing upon their evidence, according to him, the Trial Court has erred both on fact and law in concluding that the prosecution has discharged the initial burden of proof as regards the charge against the accused for which the burden has shifted, which has been not said to have dispelled. He submitted that the Trial Court ought not to have taken the aid of section 106 of the Evidence Act in arriving at a conclusion that since the accused has not provided any explanation as to how all that happened to the deceased leading to her death, which being within her special knowledge, she is guilty of the offence under section 302 of the IPC. He submitted that except the evidence of P.Ws.11 & 13, there is no other corroborative evidence in providing support to the prosecution case so as to base a finding of guilt upon the accused. It was also submitted that the prosecution, in the case, has to share the blame of not producing the evidence, which had been collected in course of investigation and, therefore, adverse inference is bound to be drawn against the prosecution case. In view of all these above, he, urged for acquittal of this accused by setting aside the judgment of conviction and order of sentence returned against him. CRLA No.211 of 2023 Page 6 of 14 9. Mr.S.K. Nayak, learned Additional Government Advocate for the for the Respondent-State, while supporting the finding of guilt against the accused, as has been returned by the Trial Court, contended that it being the evidence of P.W.11 that his wife (P.W.13) and this Appellant as well as the deceased, who are his daughter-in-law reside there in the same house with his son-in- law Motilal and also the infant child and the accused, the incident, having happened at the time when P.W.11 was not there in the house as also his son Motilal, this accused, having provided, no explanation whatsoever as to what happened with the deceased that she sustained such fatal injuries leading to her death; the Trial Court has rightly held the accused guilty of intentionally causing the death of Padmini with the aid of the provisions of Section 106 of the Evidence Act since all those facts, in the surrounding circumstances emanating from the evidence were within the special knowledge of the accused. He further submitted that that the absence of this accused at the time when the Informant (P.W.6), the head of the family (P.W.11), i.e., the father-in-law of the accused and other co-villager arrived is a strong circumstance, which provide support to the guilty intention of the accused and, therefore, when motive has also been established through clear, cogent and acceptable evidence, the Trial Court has rightly convicted this accused under section 302 of the IPC. CRLA No.211 of 2023 Page 7 of 14 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.Ws.1 to P.W.20) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.17. 11. Admittedly, the deceased is the wife of Motilal and this accused is the other wife of said Motilal. This accused then was having a child on her lap. The prosecution has proved through the evidence of the Doctor (P.W.15), who had conducted the autopsy over the dead body of Padmini that Padmini (deceased) had sustained spindle shaped incised wound presently obliquely touching mastoid process of head over the right side of neck facing downward and backward with muscles and blood vessels clearly cut and also below that on the right side neck transversely present showing muscles and blood vessels clearly cut and another said wound on the middle portion of the right shoulder vertically present and those have led to the death of Padmini. As per the evidence of the Doctor (P.W.15), the injuries were ante mortem in nature and the death was homicidal. He has also stated that such injuries were possible by the axe (M.O.I) seized in connection with the case and examined by him (P.W.20). In addition to this, there stands the evidence of the I.O. (P.W.20), who, during inquest, had noted all such injuries in the inquest CRLA No.211 of 2023 Page 8 of 14 report (Ext.P-2) when other witnesses including P.Ws.11 & 13 have also stated to have seen the deceased with such injury. With all such evidence remaining unchallenged, the prosecution is found to have well established that Padmini met a homicidal death. The dead body of Padmini as per the FIR (Ext.P-1) was lying in the house of Motilal and that has also been stated by P.W.1, P.W.6, P.W.11 and others including the I.O. (P.W.20). The prosecution has examined P.W.2, who has stated to have heard about the accused killing the deceased by means of an axe when he has stated to have come to the house of Motilal and saw the dead body of Padmini. He has also stated to have not seen the accused in the said house and she was then absent. His further evidence is that he had simply heard about the occurrence from those but who is/are among those is not stated by this P.W.2. His further evidence is that none of the family members of the accused had clearly disclosed before him that there was any quarrel between the deceased and the accused. P.W.3 is a relation of the accused and the deceased. The accused is the sister of the husband of her daughter. She has stated that the accused had gone to her house in the Monday evening. Her house is situated in Village-Bheunria whereas the house of Motilal is in Village-Dhumabhata and in fact the I.O. (P.W.20) says to have apprehended the accused when she was staying in that house. Mere presence of the accused under the CRLA No.211 of 2023 Page 9 of 14 circumstance cannot be an incriminating circumstance when nothing further is stated by P.W.3 nor any other evidence is forthcoming that when the accused left the house and in what condition. P.W.6 has stated that when he arrived in the house of Motilal after hearing that there was a dispute in the village and the accused had killed the deceased, none of the family members of the accused nor the deceased were present there and she is none other than P.W.6, the Grama Rakhi, who had lodged the FIR (Ext.P-1), he does not state as to who had told him about the incident. P.W.7, being called by the police, had gone to the house of Motilal and says to have found the dead body of Padmini lying on a cot with an axe lying near there. P.W.9 having stated to have not seen the accused when he had gone to the house of Motilal and saw the dead body of the deceased when has stated that in the house, the accused and the deceased were present, the same makes out no meaning when on the next moment, she has stated that the accused was not found in the village on the day of occurrence, which too without giving the approximate time, since when the accused was not found. In the case, the important witness for the prosecution is P.W.11. He is the father-in-law of the deceased and the accused. He has stated that in his house, he, his wife, two daughter-in- CRLA No.211 of 2023 Page 10 of 14 laws, son and one infant child of the accused were present on that day. But, his evidence is that from morning hours, he had left the house and returned home around 8/9 p.m. and that he heard about the incident around 5.00 p.m. He does not state to have seen the accused in the house or to have any information that the accused was there in the house till when and when she was last seen in the house. His evidence is that by the time he arrived at home, police had arrived when he states that on enquiry, he came to know that the accused had killed the deceased. It is also not stated from whom he so heard. His specific evidence is that in the night around 10/11 p.m., the accused was in the house of her uncle situated at Village-Behunria although he has stated that the accused and the deceased were quarrelling most of the times he, however, has not cited any specific incident either on that day or on previous days giving any such reason. The tangia (axe), having been seized by the police and the accused after having been apprehended, the I.O. (P.W.20) has not taken any step to collect the fingerprint, if any, on the said tangia in ascertaining as to whether those match with fingerprint of the accused so as to stand as a strong incriminating circumstance. Interestingly enough P.W.12 has stated that due to dispute between the first wife and Motilal, his wife Padmini (deceased) had left the company of Motilal and, therefore, Motilal had married the present accused. CRLA No.211 of 2023 Page 11 of 14 P.W.13 is the wife of P.W.4. She was not present in the house and had gone to the field for plucking black gram and returned only in the evening when the incident had taken place. She of course has stated that the accused then was not present in the house nor her child on her lap. Except the above evidence, we find no further evidence on record to be there that the deceased, shortly before the incident, was seen in the very house where ultimately the dead body of Padmini was found lying on a cot with bleeding injuries. When the above is the evidence let in by the prosecution, it is very interesting to note that the I.O. (P.W.20) has stated as follows:- “… My investigation further reveals that on the day of occurrence, i.e., on 28.08.2017 morning, father-in-law Usatram Sahu had been to Rajendrapur for some work. Mother-in-law Sobhadra Sahu went to cultivable land. Husband Motilal Sahu went to graze his ox and accused Reena Sahu and her breast feeding child and the deceased were in the house. The accused asked for money to deceased to purchase household articles but she did not give her for which there was quarrel between them. Thereafter, the deceased went for bathing and accused prepared lunch. After sometime deceased came back to house after getting bath and took food herself. She went to dry the moong outside but return back due to rain and then went to sleep on the cot lying on the verandah. In the meantime, the accused was in angry mood and decided to take revenge on the deceased. At about 12.15 p.m, taking CRLA No.211 of 2023 Page 12 of 14 opportunity of absence of all family members in the house, she took axe which was lying on the verandah and dealt successive blows on the person of the deceased. Thereafter, she fled away along with her breast feeding child towards Village-Behunria.” When this I.O. (P.W.20) states that his investigation revealed all those facts, he does not state that from which source, he collected these informations or from whom, he could ascertain all those facts. But then none of them have either been named nor brought to the witness box to say all those facts. Thus, taking an overall view over the evidence, we do not find the prosecution to have established beyond reasonable doubt that shortly before the detection of the dead body of Padmini in the house of Motilal, this accused was very much present. No witness has come forward to state that he/she heard any hullah at any time on that day in the house of Motilal. No villagers has also been examined to state that they had seen the deceased leaving the house and proceeding towards Village-Behunria. The presence of the accused in her relation’s place inVilalge-Behunria is not that a circumstance to point the finger of guilt at the accused when no further evidence as to her leaving the house giving approximate timing is forthcoming. The prosecution has not been able to lead the evidence by examining that someone that sometime after the incident, the accused left the house. The only other circumstance remains is the detection of blood of CRLA No.211 of 2023 Page 13 of 14 human origin on the wearing apparels of the accused but then of the same has, however, not been ascertained as during the time of chemical examination, it was no so possible. The evidence of P.W.1 that he had stated before the police about the accused and the deceased together in their house and that when the deceased was with the accused, she had given a blow on her by means of the axe cannot be taken as the substantive evidence when he does not state the said fact to have been seen by herself nor she states as to how he had so said before the police. With such evidence on record, we are not in a position to accept the view of the Trial Court that the prosecution has discharged the initial burden of proof that it has sifted upon the accused to dislodge by providing acceptable explanations. 12. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 26th December, 2022 passed by the learned Additional Sessions Judge, Padampur in C.T. Case No.28 of 2018, are hereby set aside. Since the Appellant (accused), namely, Reena Sahu is on bail, her bail bonds shall stand discharged. V. Narasingh, J. I Agree. Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Basu Location: HIGH COURT OF ORISSA : CUTTACK Date: 04-Jul-2024 14:56:15 CRLA No.211 of 2023 (D. Dash), Judge. (V. Narasingh), Judge. Page 14 of 14