The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.362 of 2015 CRLA No.316 of 2015 & CRLA No.7 of 2016 (From the judgment of conviction and order of sentence dated 26.03.2015 passed by the learned District and Sessions Judge, Jharsuguda in Sessions Trial Case No.45 of 2013) …. Appellants Aju Singh (In CRLA No.362 of 2015) Sureshan Naik (In CRLA No.316 of 2015) Tikeswar Naik @ Runi Mahulia (In CRLA No.7 of 2016) -versus- State of Odisha. …. Respondent Advocates appeared in the case: For Appellants : -versus- For Respondent : Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:56 Ms.Geetanjali Majhi, Adv. (In CRLA No.362 of 2015) Mrs. Bharati Dash. Adv. (In CRLA No.316 of 2015) Mr. Jagabandhu Sahoo, Adv. (In CRLA No.7 of 2016) Mr. Sonak Mishra, ASC (In CRLA Nos.362 & 316 of 2015 & 7 of 2016) Page 1 of 15 CORAM: MR. JUSTICE D. DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-22.08.2023 DATE OF JUDGMENT:-10.11.2023 Dr. S.K. Panigrahi, J. 1. In these CRLAs, the convicts/ Appellants challenge the judgment of conviction and order of sentence 26.03.2015 passed by the learned District & Sessions Judge, Jharsuguda in Sessions Trial Case No.45 of 2013, whereby they were convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo R.I. for a further period of six months for commission of offence under Section 302 and 34 of the Indian Penal Code/ 1860 (hereinafter referred to as “the I.P.C.” for brevity). I. CASE OF THE PROSECUTION: 2. The deceased Kumar Dehury is the elder brother of the father of the informant. The three accused persons and one Sagar Nayak were staying in the house of the deceased on rent. Since the father of the informant was ill, the informant and his family members were staying in the house of his uncle and in their absence the deceased was looking after the property owned by them in their village nameed Talpatia. About two months prior to the occurrence of this incident, the informant and his parents returned to Talpatia and requested the Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:56 Page 2 of 15 accused persons to vacate the house in which they were staying on rent. The accused persons had not vacated the house till the date of occurrence. Therefore, the informant and his parents were staying in the house of one Satyapira Dash. On 18.03.2013 at about 7.00am, the informant came to know that accused Suresan and Tikeswar were digging earth for the purpose of laying a foundation in their back yard. So, the informant and his mother went there to stop the work. The deceased also arrived there and asked the accused persons to stop the work. The accused persons threatened to kill the deceased. So, out of fear, the informant and his mother left that place. While leaving that place they heard the scream of the deceased as "Marigali Marigali". Hearing this, the informant and his mother returned to the spot. At that time, the body of the deceased was burning and due to pain he was screaming as "Marigali Marigali". The informant extinguished the fire and sent information to his father. After arrival of his father, the deceased was shifted to hospital. In the hospital, the deceased disclosed that accused Suresan Nayak and Tikeswar Nayak caught hold of him and accused Aju Singh poured kerosene on his body and, thereafter, set him on fire by throwing a burning match stick to his body. 3. On the basis of the F.I.R. filed by the informant, Jharsuguda P.S. Case No.72 of 2013 was registered and investigation was conducted. On completion of investigation, charge sheet was filed against the accused persons to face trial. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:56 Page 3 of 15 4. In order to bring home the charge, prosecution examined 12 witnesses. P.W.1 is the informant, P.W.2 is his mother, P.W.3 is Satyapira Dash in whose house the family of the informant were staying. He is also the scribe of the F.I.R., P.W.4 is a post occurrence witness and he had shifted the deceased to the hospital along with others for treatment. P.W.5 is the father of the informant. P.W.6 is a school teacher and co-villager of the informant, P.W.7 is a seizure witness, P.W.8 is a Doctor who had conducted Post Mortem examination over the dead body of the deceased, P.W.9 is the I.O. of this case, P.Ws. 10 and 11 are two witnesses to the dying declaration recorded by P.W.12, who is a Doctor by profession. 5. Placing reliance on the dying declaration (Ext.8) of the deceased recorded by the doctor P.W.12 and other incriminating circumstances, the trial court held the Appellants guilty of the offence under Section 302/ 34 of the I.P.C. and sentenced them as stated supra. II. SUBMISSION OF THE APPELLANTS: 6. Learned Counsel for the Appellants strenuously argued that the Appellants are innocent. The plea of the defence is one of complete denial and false implication. The specific case/plea of the defence as it borne out from the statement of the accused persons under Section 313 of the Cr.PC. is that they (accused persons) are in no way connected or concerned with the death of the deceased. They further deposed that they could not say who had killed the deceased, however, they were not involved in the incident. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:56 Page 4 of 15
Legal Reasoning
7. Learned counsel for the Appellants further contended that the case of the prosecution is based on the dying declaration of the deceased recorded by the doctor P.W.12 in absence of police requisition and Executive Magistrate. More so, the same is not corroborated by the independent witnesses. Therefore, the conviction of the accused persons cannot be solely based on the dying declaration of the deceased. 8. According to the Appellants, they were digging earth on a Government land and as they did not listen to the deceased, out of anger, the deceased himself set fire to his body. They had tried to extinguish the fire. They have been falsely implicated in this case. 9. Learned counsel for the Appellants further submitted that there are contradictions regarding the arrival of the Prosecution Witnesses at the spot. No one has seen the accused persons burning the deceased. The Doctor (P.W.12) who recorded the dying declaration was not cited as a charge sheet witness and the requisition of the I.O. to the hospital authority to record the dying declaration of the deceased is not found in the case record. The independent witnesses who have signed in the dying declaration have not stated that in their presence P.W.12 recorded the dying declaration of the deceased. There were burn injuries on the face, neck, chest, stomach etc. So, the deceased was not in a fit state to say about the cause of his death. He submitted that the prosecution has failed to prove its case against the accused persons Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:56 Page 5 of 15 beyond all reasonable doubt. So, the accused persons are entitled for an order of acquittal. III. SUBMISSIONS OF THE STATE/ RESPONDENT 10. Learned Counsel for the State, on the other hand, submitted that from the unassailed testimony of the dying declaration of the deceased which finds ample corroboration with each other coupled with the medical evidence i.e. the evidence of the doctor (P.W.12), it can be safely concluded that, none else but the accused is the author of the injuries found on the body of the deceased. In such circumstances, the impugned judgment of conviction and order of sentence dated 26.03.2015 passed by the learned District and Sessions Judge, Jharsuguda in Sessions Trial Case No.45 of 2013 is not amenable to interference. IV. COURT’S REASONING AND ANALYSIS: 11. Heard both the parties and went through the judgment of the Trial Court. After extensively perusing the documents adduced by the prosecution and the depositions of the witnesses, this Court is of the view that there are two points of determination in the present case: i. Whether the prosecution has managed to prove that death of the deceased is homicidal in nature? ii. Whether the Court can rely on the dying declaration of the deceased to convict the appellants? Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:56 Page 6 of 15 V. Whether the prosecution has managed to prove that death of the deceased is homicidal in nature? 12. P.W.8 has stated that on 20.3.13 at about 10.30 A.M. he had conducted P.M. examination over the dead body of Kumar Dehury, son of Jadu Dehury of village Talpatia, P.S.-Jharsuguda and found superficial and deep burn wounds present all over the body starting from face, neck, chest, abdomen, thigh, legs and hands and the same were ante mortem in nature. There was no internal injury and the percentage of burn was 60 to 70%. The cause of death was due to hypovolemic shock caused due to ante mortem burn. The time of death was 10 to 14 hours from the time of Post Mortem examination. He has proved the Post Mortem examination report marked as Ext.5. So, it is clear that the deceased died due to burn injuries sustained by him. During cross-examination, P.W.8 stated that such injuries are possible if a victim commits suicide by burning himself. One of the accused named Tikeswar has taken the plea that the victim himself set fire to his body. So, the question is as to whether the accused persons set fire to the body of the deceased or the victim himself set fire to his body. VI. Whether the Court can rely on the dying declaration of the deceased to convict the appellants? 13. The prosecution case rests on circumstantial evidence and dying declaration of the deceased. The witnesses have stated that the accused persons were staying in the house of the deceased on rent. After the arrival of P.W.1 and his family members in the village, the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:56 Page 7 of 15 accused persons were asked to vacate the house as P.W.1 and his family intended to stay in that house. The accused persons did not agree to vacate the house. Therefore, two meetings were held in the village and time was given to the accused persons to vacate the house. But, instead of vacating the house the accused persons started digging earth on a portion of land within the premises of their rented house and so on the date of occurrence in the morning a quarrel took place. During the course of quarrel, the accused persons threatened the deceased. No one else except the accused persons and the deceased were present there. Subsequently, the victim screamed and so P.W.1 and others went to the spot and at that time the body of the victim was burning. 14. The Doctor has stated that the mental condition of the deceased was good and he was able to talk. So, the dying declaration can be safely accepted. Since a conviction can be recorded exclusively on the basis of dying declaration, the accused persons are liable to be convicted. 15. In the present case no prosecution witness has seen the accused persons setting fire to the body of the deceased. The prosecution case rests on circumstantial evidence and the dying declaration recorded by P.W.12. 16. Admittedly, the accused persons were staying in the house of P.W.1 on rent. It is also an admitted fact that P.W.I and his family members were insisting the accused persons to vacate the house and for the said reason a meeting was held in their village on 17.3.2013. It is also Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:56 Page 8 of 15 admitted by the accused persons that on 18.3.2013 in the morning they were digging earth to construct a foundation in front of their rented house and when P.Ws.1 and 2 protested, a quarrel took place. P.Ws.1 and 2 in their testimonies have stated that on the date of occurrence in the morning they had gone to the spot and when they asked the accused persons as to why they were digging earth the accused persons quarreled with them. They have further stated that while they were standing outside, the deceased entered into the house. 17. As the accused persons were in angry mood, out of fear they returned. While they were returning they heard scream of the deceased as “Marigali Marigali”. So, they returned to the spot and at that time the body of the deceased was burning. 18. There are contradictions in the testimonies of P.W.1, 2 and 5. According to P.W.1 he heard the accused persons threatening the deceased and subsequently he heard the shout of the deceased as “Bua Go Ma Go Maridela”. Out of fear he alongwith his mother returned to their house and told the above matter to his father. Thereafter, his father went to the spot and he followed his father. He saw the deceased lying on the front bari of the rented house of the accused persons having burn injuries from his face they heard the shout of the deceased as "Marigali Marigali" and then to neck. In this regard, P.W.2 has stated that while they were returning, they returned to the spot. They saw the body of the deceased burning. So, she along with P.W.1 went to their house and told the matter to her husband i.e. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:56 Page 9 of 15 P.W.5. P.W.5 in his testimony has stated that his son (P.W.1) and wife (P.W.2) came to the house shouting. P.W.1 told him that he along with P.W.2 and the deceased had been to the house of the accused persons to protest as the accused persons were digging earth. P.W.1 further told him that he and P.W.2 returned back and the deceased stayed at the spot. There was exchange of hot words between the deceased and the accused persons. P.W.1 further told that while they were returning they heard a shout as ’Marigali’ and they looked back. They saw fire at the spot, hence, P.W.1 told him to proceed to the spot. So, he went to the spot. So, there is a contradiction in the testimonies of P.Ws 1, 2 and 5. However, it is the opinion of the court that the said contradiction is minor and not sufficient to disbelieve the entire prosecution case. 19. Even D.W.1 has stated that at first P.W.1 and his mother arrived at the spot and asked the accused persons to stop the work. They claimed that the piece of land on which the accused persons were laying foundation belongs to them and the accused persons replied to them that they (accused persons) were laying the foundation on a Government land and so they would not stop the work. Therefore, Kamalesh (P.W.1) and his mother went away from the spot. After half an hour the deceased arrived at the spot and asked the accused persons to stop the work. The accused persons did not listen to him. So, a quarrel, took place between both parties. D.W.1 has not stated the presence of any other person at the spot at that time. It is clear Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:56 Page 10 of 15 from the testimonies of P.Ws.1, 2 and D.W.1 that except the deceased and the accused persons no one else was present at the spot. 20. The deceased who had gone to the spot to protest against the digging of earth by the accused persons is not likely to set fire to his own body out of anger. There was no good relation between the deceased and the accused persons at that time because prior to the date of occurrence a meeting was held in the village in which the accused persons were asked to vacate the house. Instead of vacating the house the accused persons started laying of a foundation in front of their rented house. D.W.2 in his cross-examination has admitted that the land on which the accused persons were constructing the foundation is a portion of land which was in occupation of the deceased. So, it cannot be believed that the deceased set fire to his own body because the accused persons did not listen to him. 21. After the deceased was burnt he was taken to Jharsuguda hospital for treatment by P.Ws.1, 4 and 5. It is stated by P.Ws.1 and 5 that in the hospital the deceased told them that accused Suresan and Tikeswar caught hold of him and accused Aju Singh set him on fire after pouring kerosene on his body. 22. P.W.12 who is a Doctor cannot be said as an interested witness. P.W.12 in his testimony has stated that on 18.3.2013 he was working as an Assistant Surgeon at District Headquarters Hospital, Jharsuguda. On that day, he was performing emergency duty. One Kumar Dehury was brought to the hospital with 70% burn injury on Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:56 Page 11 of 15 his body for his treatment. He admitted the patient as an indoor patient. At 2.45 P.M. he recorded the statement of the patient as the condition of the patient was serious and the patient was not likely to survive. He has specifically stated that the mental condition of the patient was good and he was able to talk. He has proved the statement given by the deceased and recorded by him marked as Ext.8. 23. As it appears from Ext.8, P.W.12 asked the deceased as to how he sustained burn injuries. The deceased has given the reply that accused Runi Mahulia (Tikeswar) and Suresan caught hold of him. The third accused named Aju Singh poured kerosene on his body and burnt his body by igniting a match stick. Thereafter, P.W.12 has asked him as to why they did so. The deceased has replied that Suresan, Aju and Runi Mohulia were staying in his house on rent @ 100/- per month and when he asked them to vacate the house they replied that they would construct a house forcibly and continued to dig earth to lay a foundation. The deceased has specifically stated that for the aforesaid reason the accused persons made his condition as he was at that time. P.W.12 has stated that after recording the statement of the deceased he read over and explained the contents of Ext.8 to the patient and the witnesses and obtained their signature, LTI etc. Subsequently, he sent the dying declaration (Ext.8) to the police alongwith his forwarding report marked as Ext.9. As it appears from Ext.9, Ext.8 was forwarded Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:56 Page 12 of 15 by P.W.12 on the same day i.e. 18.3.2013. The deceased died the next day. 24. P.W.12 was cross-examined by the learned Advocate for Defence. During cross-examination he has admitted that he does not remember the bed number of the deceased. He has also stated that he has not received requisition from the police or any Executive Magistrate to record the dying declaration of the deceased. Further, he has admitted that he has not furnished any certificate on Ext.8 that the mental condition of the deceased was good at the time of recording of the dying declaration. But for the aforesaid reasons this Court is not inclined to discard the dying declaration i.e. Ext.8. It is true that the two witnesses who had signed on the dying declaration i.e. P.Ws.10 and 11 have not supported the prosecution case. They have stated that being directed by P.W.12 they had signed on Ext.8. But they have stated that the deceased was admitted in the same ward in which the daughter of P.W.10 and wife of P.W.11 were admitted. P.W.10 has further stated that P.W.12 was treating his daughter and P.W.11 has stated that the deceased had sustained burn injuries on his body. Only because they have not stated that in their presence Ext.8 was written, Ext.8 cannot be kept out of consideration. P.W.12 is a Doctor and while discharging his official duty he has recorded the dying declaration of the deceased marked as Ext.8. 25. In the instant case, the deceased was admitted in the hospital on the date of occurrence and he died on the next date. P.Ws.1 and 5 have Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:56 Page 13 of 15 stated that the deceased had disclosed before them as to who burnt him and how he was burnt. The Doctor P.W.12 is an independent person and there is no reason as to why he would speak false facts against the accused persons. It is true that the requisition sent by the I.O. to the hospital for recording of dying declaration is missing and could not be proved but for that reason the dying declaration recorded by P.W.12 cannot be discarded. Of course, P.W.6 and D.Ws.1 and 2 have stated that the accused persons were taking care of the deceased and they were providing him food, medicines etc. at the time of need. Even if it is believed that the accused persons were taking care of him at the time of need a view cannot be taken that they were not responsible for the death of the deceased. The evidence available in the record clearly establishes the fact that on the date of occurrence there was a quarrel between the accused persons and the deceased as because the accused persons started digging earth inside the premises of the deceased to construct a new house. There was no one else at the spot at that time. P.Ws. 1 and 2 have heard the accused persons threatening the deceased and, subsequently, they heard scream of the deceased after he was set on fire. That apart, this Court finds no infirmity in the dying declaration marked as Ext.8. The Doctor P.W.12 has stated that the mental condition of the deceased was good and he was able to talk. So, the deceased was in a fit state of mind and was able to give his statement. The deceased has briefly explained as to how the accused persons set him on fire. In our opinion, there is Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:56 Page 14 of 15 absolutely no infirmity in the dying declaration marked as Ext.8. The same is reliable. So, in view of the position of law stated earlier the accused persons can be convicted exclusively on the basis of the dying declaration of the deceased, even though no other witnesses have corroborated the same. 26. For the reasons aforementioned, we are of the opinion that the Appellants are guilty of commission of the offence under Section 302 read with Section 34 of the I.P.C. The result is that all the Appeals are without merits and the same are liable to be dismissed. 27. The trial court is directed to take all such effective steps immediately in accordance with law to secure the presence of the Appellants to undergo the sentence as imposed. 28. Accordingly, all the aforesaid three Appeals are dismissed. ( Dr. S.K. Panigrahi ) Judge ( D. Dash ) Judge D. Dash, J. I agree. Orissa High Court, Cuttack, Dated the 10th Nov., 2023// Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Nov-2023 16:53:56 Page 15 of 15