The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.53 of 2018 In the matter of an Appeal under section 383 of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 29.03.2018 passed by the learned Sessions Judge, Bhadrak in Sessions Case No.187 of 2014. Siba @ Srikanta Sahoo …. Appellant -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants- Mr. S. R. Mulia Advocate For Respondent- Mrs. Saswata Patnaik, Additional Government Advocate CORAM: MR. JUSTICE D. DASH MR. JUSTICE G. SATAPATHY Date of Hearing :06.12.2023 :: Date of Judgment:19.12.2023 D.Dash, J. The Appellant, by filing this Appeal from inside the Jail,
Facts
has challenged the judgment of conviction and order of sentence dated 29.03.2018 passed by the learned Sessions Judge, Bhadrak in Sessions Case No.187 of 2014, arising out of G.R Case No.1451 of 2014, corresponding to Bhadrak Rural P.S. Case No.349 of 2014 of the Court of the learned Sub-Divisional Judicial Magistrate (SDJM), Bhadrak. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of Indian Penal Code, 1860 JCRLA No.53 of 2018 Page 1 of 8 {{ 2 }} (in short, ‘the IPC’) and he has been sentenced to undergo imprisonment for life and pay fine of Rs.30,000/- (Rupees Thirty Thousand), in default to undergo Rigorous Imprisonment for six months for the offence under section 302 of the IPC. 2. Prosecution case is that one Ratha sahu, the father of the deceased (Informant-P.W.2) on 29.08.2014 around 10.30 am lodged a written report with the Inspector-in-charge of Bhadrak Rural Police Station being scribed by one Harihar Behera informing the death of his daughter namely, Parbati being murdered by her husband, the accused. The above report being received, the IIC it treated as FIR and after registration of the case, directed one Sub-Inspector of Police (S.I-P.W.11) to investigate the case. 3. In course of investigation, the I.O (P.W.11) examined the informant and scribe of the FIR namely, Harihar Behera. He visited the spot, prepared the spot map (Ext.6). He conducted inquest over the dead body of the deceased in presence of the witnesses and prepared the report to that effect (Ext.3). He examined the witnesses to the inquest. He seized one weapon i.e. crow bar having blood stain from the bed room of the deceased. He also seized the sample earth and blood stained earth from the spot and prepared the report under seizure list vide Ext.1. The dead body of the deceased was sent to DHH, Bhadrak for post mortem examination by issuing necessary requisition. The I.O then apprehended the accused and seized the wearing apparels, blood sample of the deceased. The accused was forwarded in custody to Court. The seized incriminating articles were sent for chemical examination to RFSL, Balasore through Court. JCRLA No.53 of 2018 Page 2 of 8 {{ 3 }} On completion of investigation, Final Form was submitted by the I.O (P.W.11) placing the accused to face the Trial for commission of offence under section 302 of the IPC. 4. Learned SDJM, Bhadrak, having received the Final Form as above, took cognizance of the offence under section 302 of the IPC and after observing the formalities, committed the case to the Court of Sessions for trial. That is how the Trial commenced against the accused framing the charge for the said offence. 5. In the Trial, prosecution in total has examined eleven (11) witnesses. Out of whom, the informant, who had lodged the written report which was treated as FIR vide Ext.2 and is the father of the deceased, has been examined as P.W.2. The daughter of the deceased and the accused has been examined as P.W.9. P.W.1 & P.W.5 are the witnesses to the seizure. P.W.3, P.W.4 and P.W.7 are the witnesses to the inquest. P.W.8 is another son-in-law of the Informant. The Doctor, who had conducted the Post Mortem Examination over the dead body of the deceased, has come to the witness box as P.W.10 whereas the Investigating Officer (I.O) is P.W.11. 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 Ext.1 to Ext.11. Out of those, the important are the FIR, Ext.2, Inquest Report, Ext.3, Seizure List, Ext.1, Post Mortem Report, Ext.4, Spot Map is Ext.6 and the Chemical Examination Report is Ext.11. JCRLA No.53 of 2018 Page 3 of 8 {{ 4 }} 7. The plea of the accused is that of complete denial and false implication. However, the accused has not tendered any evidence in support of defence. 8.
Legal Reasoning
we find that the impugned judgment of conviction and order of sentence cannot be sustained. 13. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 29.03.2018 passed by the learned Sessions Judge, Bhadrak in Sessions Case No.187 of 2014 are hereby set aside. The Appellant (accused) be set at liberty forthwith, if his detention is not warranted in connection with any other case. G. Satapathy, J. I agree. (D. Dash), Judge. (G. Satapathy), Judge. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 20-Dec-2023 16:03:18 JCRLA No.53 of 2018 Page 8 of 8
Arguments
Learned counsel for the Appellant (accused) submitted that there is no direct evidence about the happenings in the incident. He submitted that although the prosecution has proved through the evidence of the Doctor (P.W.10), who had conducted autopsy over the dead body of Parbati that it was a homicidal death on account of perforating sharp cutting wound of size 1 x ½ x ½ x 5 deep present over right cheek and ½ inch medial to right nipple of the breast which has also been seen by other prosecution witnesses including the I.O (P.W.11), who had held inquest over the dead body of the deceased, the evidence as to the complicity of this accused is not sufficient in saying that it is the accused, who had caused that injury. He further submitted that the Trial Court has much relied upon the evidence of P.W.9 and in view of said evidence as also the evidence of P.W.2 to some extent, having found that the prosecution has proved the essentials, the facts as to how the incident happened and how Parbati sustained such injury being taken to be within the special knowledge of the accused when no such explanation has come from his side applying the provisions of section 106 of the Evidence Act in its full vigour, the accused has been held to have caused said injury which according to him, is not sustainable. In this connection, he has taken us through the deposition of P.W.2, who is the father of the deceased and P.W.9, who is the daughter of the accused and the deceased. It was submitted that even if the evidence of P.W.9 is accepting in toto, that will not shift the burden of proof upon the accused to show as to how the incident so happened and therefore, he contended JCRLA No.53 of 2018 Page 4 of 8 {{ 5 }} that the evidence as to the complicit of the accused in the present case is highly deficient. 9. Learned counsel for the Respondent-State placing the evidence of P.W.9 stated that the Trial Court has rightly convicted the accused when the accused has not given any sort of explanation being then in the house with the deceased as to how it all happened to the deceased, who is his wife. 10. Keeping in view the submissions made, we have carefully read the impugned judgment passed by the Trial Court. We have also gone through the evidence of the prosecution witnesses i.e. P.W.1 to P.W.11 and have perused the documents admitted in evidence and marked Ext.1 to Ext.11. 11. It is not in dispute that the death of Parbati is homicidal in nature. The question posed before us as to whether with the available evidence of P.W.9 and P.W.2, it can be said that the burden of proof of the facts as to how it all happened with the deceased had gone to be rested on the shoulder of the accused and if so, whether he has been able to discharge the same or not. In judging that, we are required to look at the evidence of P.W.9 first. P.W.9 is the daughter of the accused and the deceased. She is aged about 14 years when she deposed and at the time of incident which took place in about mid of the year 2014, she was around 11 years and reading in High school. She has stated that on the relevant date, she was in the school with other students as that was the day when Ganesh Puja was being performed in the school. She says to have returned from the school around 9 am and saw her mother lying dead on the floor inside JCRLA No.53 of 2018 Page 5 of 8 {{ 6 }} their house with piercing injuries on her body. Later on, she states that when she returned home, she found her father inside the house and none else present. It is however not her specific evidence that her father was very much inside the house near the dead body of her mother or even in the same room. She is not stating to have asked anything to her father (accused) which under the circumstances to be the expected normal and most usual conduct of a girl child seeing mother lying dead when also apparently, it does not look that the death was normal. She has stated that thereafter her father left the house towards the village Chaka and did not return. It is her evidence that she has not been examined by police nor her statement was recorded by her. In that way, her version appears to be after a long lapse of time and none says to have been told by her about the incident. She has categorically stated that her father and mother were leading happy conjugal life. She states to have not seen any weapon in the house nor even the crow bar with which the prosecution case is that the injuries upon the deceased had been caused. Now when such is the evidence of P.W.9, much is said on the absconding of the accused. But we find from the evidence of the I.O (P.W.11) that he arrested the accused on that very day i.e. 29.08.2014 at Nalanga Market. When he says that the accused was there in the market, his evidence is not on the score as to from whom, he asserted the same. He is not stating as to where at what time accused was and where he was arrested in that public place and that at the time the accused was arrested what he was doing and that was his conduct or behaviour at the sight of police. He is not stating as to what time, he arrived in the market. No other evidence is tendered by examining any witness to have seen the actual arrest of the accused from that place. P.W.11 when states to have arrested the accused from that market, he does not state as to what immediately did JCRLA No.53 of 2018 Page 6 of 8 {{ 7 }} the accused disclose before him or what was the immediate conduct at the sight of the police. When P.W.9 has stated that there was no dispute or discussion between his mother (deceased) and her father (accused) it is also so stated by P.W.2, who is none other than the father of the deceased and father-in-law of the accused. The accused having married the deceased, three children were born out of the said wed lock. The marriage between them had taken place 15 years before the death of the deceased. P.W.2 has categorically stated that his son-in-law (accused) and daughter (deceased) were pulling on well and his daughter was staying with the accused along with her father-in-law and mother-in-law in one house. No evidence is forthcoming as to at that time when P.W.9 arrived at home where the parents of the accused were there. In the above circumstances emanating from evidence, possibility is not ruled out that having seen such happening to the wife (deceased) as expected the accused to have gone to call people or lodge the report and it cannot be said with certainty said that he in order to evade the process of law, had gone away and thus cannot be termed to be an absconder. No other evidence has been tendered that the accused was in any imbalanced state after the incident or in a hurry to leave the village. With the available evidence on record, we are unable to agree with the view of the Trial Court that the accused was under the legal obligation to provide explanation as to how his wife met homicidal death as such facts were within his special knowledge. No doubt, it has been proved from the side of the prosecution that the crow bar has been seized stained with the human blood from the bed room of the accused but in view of what we have already stated the said factum of seizure of JCRLA No.53 of 2018 Page 7 of 8 {{ 8 }} the crow bar stained with the blood from the bed room of the accused loses all its significance. 12. For all the aforesaid discussion of evidence and the reasons noted,