The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.20 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 22nd February, 2017 passed by the learned Sessions Judge, Baleswar in Sessions Trial No.210 of 2015. Shantilata Das …. Appellant ---- -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Abhilash Mishra, (Advocate) For Respondent - Mr.P.K.Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 06.07.2023 : Date of Judgment:24.07.2023 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and order of sentence dated 22nd February, 2017 passed by the learned Sessions Judge, Baleswar in Sessions Trial No.210 of 2015 arising out of C.T. No.958 of 2014 corresponding to Simulia P.S. Case No.301 of JCRLA No.20 of 2017 Page 1 of 12 {{ 2 }}
Legal Reasoning
2014 of the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Soro. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, 8the IPC9). Accordingly, she has been sentenced to undergo imprisonment for life and pay fine of Rs.1,000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for three (3) months for the said offence. 2. Prosecution Case:- On 23.10.2014 at about 8.00 p.m, one Satrughna Das (P.W.7) reported the matter at Simulia Police Station (P.S.) as to missing of his younger brother Ananta Kumar Das in stating therein that his younger brother Ananta was not seen for the last five days and, therefore, he had apprised the matter to one Bhaskar Das of their village. Said Bhaskar then asked this accused, who happens to the wife of Ananta regarding the whereabouts of her husband. The accused told him that the deceased was sleeping in his room. When the matter stood thus, the villagers got foul smell coming out of the house of Ananta. In order to ascertain the reason for such emission of foul smell from the house, they went to the house of Ananta and found the dead body of Ananta lying inside the house in a decomposed state. The accused, then being asked, JCRLA No.20 of 2017 Page 2 of 12 {{ 3 }} denied to have any knowledge or idea about the death of her husband Ananta. Receiving the report, Simulia P.S. U.D. case was registered and the Assistant Sub-Inspector (A.S.I.) of Police (P.W.12) was asked to enquire into it. During inquiry, he visited the spot, examined the witnesses, conducted the inquest over the dead body of the deceased so also sent the dead body for post mortem examination and obtained the report. From the finding of the Doctor, when it came to the light that the death of Ananta was on account of multiple fractures of the rib, hypovolemic shock and loss of vital organ like lung as a result of blunt trauma of chest, said A.S.I (P.W.12) lodged a written report with the Inspector-in- Charge (I.I.C.) of Simulia P.S. The I.I.C., receiving the report, treated the same as FIR and registering the case, directed one Sub-Inspector (S.I) of Police (P.W.14) of that P.S. to take up investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.14) examined the Informant and other witnesses, proceeded to the spot, i.e., the dwelling house of Ananta (deceased). The accused then was absent in the house. On 08.02.2015, the I.O. (P.W.14) arrested the accused and forwarded her in custody to court after her medical examination. He had also seized the incriminating articles in course of investigation under the seizure JCRLA No.20 of 2017 Page 3 of 12 {{ 4 }} list. On completion of the investigation, the I.O. (P.W.14) submitted the Final Form placing the accused and his wife (since acquitted) to face the Trial for commission of the offence under sections 302/201 of the IPC. 4. Learned J.M.F.C., Soro, on receipt of the Final Form, as above, took cognizance of the offence 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 aforesaid offences against the accused. 5. The defence plea is that of complete denial and false implication. 6. The prosecution, for establishing the charge, has examined in total fourteen (14) witnesses during Trial. Out of those, as already stated, P.W.2 is the elder brother of Ananta (deceased), who had first informed the matter at the P.S. as regards missing of his younger brother whereas P.W.4 is the wife of P.W.2. P.W.1 is the nephew of the deceased, the son of the deceased is P.W.2 and the niece of the deceased is P.W.11. The brother of the accused who is the brother-in-law of the deceased is P.W.6. Co- villagers of the deceased have come to the witness box as P.Ws.8 & 10. The A.S.I. of Police, who had inquired into the U.D. Case when has been examined as P.W.12, the I.O. of the case is P.W.14. JCRLA No.20 of 2017 Page 4 of 12 {{ 5 }} The Doctor, who had conducted the conducted the autopsy over the dead body of the deceased has been examined as P.W.3. 7. 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 6. Out of those, important are the FIR (Ext.4), inquest report (Ext.1) and post mortem (Ext.5). The accused, having taken the plea of denial and false implication, has, however, not tendered any evidence in support of the said plea. 8. The Trial Court, upon examination of the evidence of the Doctor (P.W.13), who had conducted the post mortem examination over the dead body of the deceased his report (Ext.5) and further looking at the evidence of other witnesses, has arrived at a conclusion that the death of Ananta was homicidal. In fact, this aspect of the case was not under challenge before the Trial Court and that has been the situation before us. The Doctor (P.W.13), conducting the post mortem examination over the dead body of the deceased has found several external injuries over the dead body of Ananta and on dissection, he had also noticed that all the ribs of chest both sides fractured. His evidence is that the death of Ananta was on account of hypovolemic shock and loss of vital organ like lung as JCRLA No.20 of 2017 Page 5 of 12 {{ 6 }} a result of blunt trauma to chest. He has specifically stated the death to have been taken place within 48 hours to 07 days by the time of his examination. In his report (Ext.5), all details as to the injuries with their seat and dimensions have been noted. The I.O.(P.W.12), having held the inquest over the dead body of the deceased, has also noted the injuries, which he noticed on the dead body in his report (Ext.1) in his own language. The other witnesses have also stated to have seen the deceased lying dead with injuries. All these above evidence have remained unchallenged, we find no difficulty in accepting the finding of the Trial Court as regards the nature of death of the deceased (Ananta) to be homicidal. 9.
Legal Reasoning
Learned counsel for the Appellant (accused) submitted that there is no direct evidence in support of the commission of the offence by this accused for which she has been charged. She submitted that simply because the accused is the wife of the deceased and it has been accepted by the Trial Court that they were living together since the accused has failed to prove any explanation as to how her husband suffered such injuries, which have led to her death, the Trial Court has held the accused to be the author of the crime. He submitted that even though it is accepted that the accused and the deceased were staying together in one house, yet as no evidence is forthcoming to show that the JCRLA No.20 of 2017 Page 6 of 12 {{ 7 }} accused was living in that house within a period spreading over seven days prior to the detection of the dead body, the initial burden of proof lying upon the prosecution ought not to have been held to have been discharged so as to shift the same upon the shoulder of the accused. He submitted that there is no evidence to show that the accused was living with the deceased spreading over a period of a week or so prior to the detection of the dead body in the house and no acceptable evidence is there on record to show that when the dead body was recovered from the house, the accused was present and it is also not proved as to wherefrom the accused was arrested. Therefore, with the available evidence, according to him, the Trial court ought not to have applied the principles behind the provisions contained in section 106 of the Evidence Act in holding that said fact as to how the deceased received the injuries being within the knowledge of the accused, she has failed to prove that fact by offering explanation on the basis of the fact within her special knowledge in discharging the burden shifted upon him. 10. Mr.P.K.Mohanty, learned Standing Counsel for the State- Respondent submitted all in favour of the finding of the Trial Court in convicting the accused for the offence under section 302 of the I.P.C. According to him, the accused, being the wife of the deceased, when it is there in the evidence that they were living as JCRLA No.20 of 2017 Page 7 of 12 {{ 8 }} such in that house, the dead body of the deceased, having been recovered after about a week when he was not seen in the village during the period, it was for the accused to offer explanation on the basis of said facts, which were within of her special knowledge and thus, that having not been done and thus, the burden having gone upon the accused under section 106 of the Evidence Act, the Trial Court did commit no mistake in convicting the accused under section 302 of the I.P.C. 11. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also gone through the depositions of the witnesses (P.W1.1 to 14) and have perused the documents, which have been admitted in evidence and marked Exts.1 to 5. 12. The dead body of the deceased has been recovered from his house. The relationship between the accused and the deceased is husband and wife. P.W.7, who is the elder brother of the deceased, has stated that having not seen the deceased, who used to often sit on the verandah of his house for same days; one day he could get the foul smell coming out of the house of the deceased. He, however, does not say that during that time, the accused was in the house her normal work. His further evidence is that entertaining suspicion, he informed the matter to Bhaskar Das (P.W.10) who JCRLA No.20 of 2017 Page 8 of 12 {{ 9 }} went to the house of the deceased and asked this accused to told that the deceased was sleeping after taking food. His further evidence is that the villagers were then called and by breaking upon the fence and all entered into the campus of his brother and saw the decomposed dead body of the deceased whereafter the matter was reported to the police. Although, this witness (P.W.10) states to have asked regarding the whereabout of the deceased; the villagers are not stating to have then seen the accused nor it is stated by P.W.10 as to what happened to the accused thereafter whether she then silently left the home. That part, interestingly what has been the written report presented by this P.W.7 at the P.S. has not been proved. The FIR (Ext.4) lodged by the A.S.I. of Police (P.W.12), who had enquired into the U.D. case when goes to show that P.W.7 had reported the matter in writing, the prosecution, having not proved the same, certainly suspicion arises in mind as regards that Bhaskar Das (P.W.10) going to the house and asked the accused finding her to be present in the house about her husband. The evidence of P.W.7 and P.W.10 which would have received corroboration from that written report was not made available and has been withheld from being proved without any explanation. So, in the absence of the evidence of P.W.10 that he had been to the house of the accused after hearing from P.W.7 and had asked the accused regarding the whereabout of her husband, finding this accused to be in the JCRLA No.20 of 2017 Page 9 of 12 {{ 10 }} house, cannot be believed as on his own saying, P.W.7 was in inimical terms with the deceased and the accused for certain land dispute and he was not in talking terms with them. 13. The witness such as P.Ws.2, 3, 6, 7, 10 & 11 have not supported the prosecution case. This P.W.7 is saying that P.W.10 had asked the accused by going to the house after hearing from him. Not only that P.W.10 does not say so, but also the evidence of the A.S.I. (informant-P.W.12) is silent on that score. When he says that in course of inquiry in the U.D. Case, he had visited the house of the deceased and the accused and held inquest over the dead body in presence of the witness and prepared the report (Ext.1), he is not stating that as to if the accused was then present in the house or not. He has not made any enquiry in that direction nor he is raising the suspicion as to the involvement of this accused. It his evidence that during inquiry, the son-in-law of the deceased (P.W.2) had stated that the deceased was under sufferance and died on account of his sufferings. That P.W.2, during his evidence then is expressing his ignorance as to the cause of death of the deceased. The I.O. (P.W.14) when states to have visited the spot, i.e., the dwelling house of the deceased, he says that then the accused was absent, but none of the witnesses including P.W.7 says as to when accused had left the house after the detection of the dead body or it was so prior to that. The I.O. JCRLA No.20 of 2017 Page 10 of 12 {{ 11 }} (P.W.14) having deposed to have arrested the accused on 8.2.2015, does not, however, say as to where such arrest was effected whether it was in the house of the deceased where the accused was staying or at some other place and if so, what the accused was at the time doing. With all these evidence on record, we are of the considered view that the prosecution has not been able to discharge the initial burden of proving all such facts so as to shift the said burden of proof upon the shoulder of the accused in saying that the fact as to how the deceased sustained injuries and met his death being the knowledge of the accused, she was under the legal obligation to explain away in discharging the said burden. We are, therefore, of the considered opinion that the finding of guilt returned by the Trial Court holding the guilt of committing the murder of her husband, Ananta in intentionally causing his death and causing disappearance of the evidence standing against her acts consisting the offence is liable to be set aside. 14. On the conspectus of the analysis of the evidence let in by prosecution, we are of the view that the finding of the Trial Court that the prosecution has established the charge against accused, Ananta Kumar Das beyond reasonable doubt by leading clear, cogent and acceptable evidence cannot be sustained. JCRLA No.20 of 2017 Page 11 of 12 {{ 12 }} 15. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 22nd February, 2017 passed by the learned Sessions Judge, Baleswar in S.T. No.210 of 2015 are hereby set aside. The accused, namely, Shantilata Das, who is in custody, be set at liberty forthwith, if her detention is not wanted in connection with any other case. Dr.S.K. Panigrahi, J. I Agree. (D. Dash), Judge. (Dr.S.K. Panigrahi), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 24-Jul-2023 14:48:45 JCRLA No.20 of 2017 Page 12 of 12