The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.718 of 2012 In the matter of an Appeal under Section 374 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 22ND November, 2012 passed by the learned Additional Sessions Judge, Malkangiri, in Criminal Trial No.82 of 2012. ---- Nepal Samadhar …. Appellant -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.J.K. Panda (Advocate) For Respondent - Mr.S.N. Das, Additional Standing Counsel
Legal Reasoning
CORAM: MR. JUSTICE D.DASH MR. JUSTICE G. SATAPATHY Date of Hearing : 06.10.2023 : Date of Judgment : 01.11.2023 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and the order of sentence dated 22nd November, 2012 passed by the learned Additional Sessions Judge, Malkangiri, in Criminal Trial No.82 of 2012 arising out of G.R. Case No.67 of 2012 corresponding to CRLA No.718 of 2012 Page 1 of 10 - 2 - Kaliamela P.S. Case No.32 of 2012 of the Court of the Judicial Magistrate First Class (J.M.F.C.), M.V.79. 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, he has been sentenced to undergo imprisonment for life and pay fine of Rs.2,000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment for six (6) months for commission of the said offence. 2. Prosecution Case:- Accused had married Seema Samadhar, who is the sister of Nikhil Sarkar (informant-P.W.6) some time in the year 2000. After some days of marriage, there had arisen dissention between them because of establishment of extra marital relationship between the accused with his elder sister-in-law. All the relations of the village and villagers were aware about this development and for that, frequently quarrel was taking place between the accused and his wife Seema. It is alleged that on 01.05.2012, accused throttled his wife Seema to death. The information to that effect, having been received by the brother of Seema, namely, Nikhil Sarkar (P.W.6), he proceeded to the house of his sister and found her lying dead. CRLA No.718 of 2012 Page 2 of 10 - 3 - Nikhil Sarkar (informant-P.W.6), the brother of Seema (deceased) lodged a written report being scribed by one Tusar Sarkar (P.W.5) with the Sub-Inspector (S.I.) of Police (P.W.10) working at Potteru Police Out Post under the jurisdiction of Kalimela P.S. On receiving the same, P.W.10 sent the same to the Inspector-in-Charge (IIC), Kalimela P.S for registration of the case. The IIC receiving the said report from P.W.10, treated the same as the FIR (Ext.4) and upon registration of the case, directed him (P.W.10) to take up investigation. 3. The Investigating Officer (I.O.-P.W.10) immediately recorded the statement of the informant (P.W.6). The I.O. (P.W.6) then visited the spot. He too held inquest over the dead body of the deceased and prepared the report to that effect (Ext.1) in presence of other witnesses. The dead body of the deceased was sent for postmortem examination by issuing necessary requisition. The wearing apparels of the deceased have been seized by the I.O. (P.W.10) under seizure list (Ext.2) on 02.05.2.012, P.W.10 arrested the accused and sent him for his medical examination. The seized incriminating articles were sent for chemical examination through Court. On completion of the investigation, the I.O. (P.W.6) submitted the Final Form placing this accused to face the Trial for commission of the offence under section 302 of the IPC. CRLA No.718 of 2012 Page 3 of 10 - 4 - 4. Learned J.M.F.C., M.V.79, on receipt of the Final Form, took cognizance of said 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 offence against the accused. 5. In the Trial, the prosecution, in support of its case, has examined in total eleven (11) witnesses. As already stated, the informant, who had lodged the FIR (Ext.4) is P.W.6. The scribe of the said FIR (Ext.4), has come as P.W.5 and P.W.4 is the co- villager of P.W.6. P.Ws.1 & 2 are the co-villagers of the accused. P.Ws.8 & 9 are the inquest and seizure. P.W.11 is the Doctor, who had conducted the post mortem examination over the dead body of the deceased whereas P.W.10 is the I.O. 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 10. Important of those, are the FIR (Ext.4); inquest report (Ext.1); and the post mortem report (Ext.10). 6. The accused has taken a plea of complete denial and false implication. He, however, has not tendered any evidence in support of said plea. CRLA No.718 of 2012 Page 4 of 10 - 5 - 7. The Trial Court, having gone through the evidence and upon their scrutiny, has found this accused to be guilty for commission of the offence under section 302 of the IPC in intentionally causing the death of Karunakar. Accordingly, he has been sentenced as afore-stated. 8. Mr. J.K. Panda, learned counsel for the Appellant (accused) submitted that the entire conviction of the accused is based on the testimony of P.Ws.3 & 4 before whom, as per the prosecution case, the accused, after committing the offence, confessed the crime. He further submitted that except the evidence of P.Ws.3 & 4 about that confession of the accused before them, no other circumstance has even been shown pointing the finger of accusation at this accused save and except, being stated that he was not pulling on well with his wife Sima, which is not forthcoming in evidence even from the lips of the brother of the deceased, i.e., P.W.6 (Nikhil), who had lodged the FIR (Ext.4). He further submitted that said evidence of P.Ws.3 & 4 as regards the confession made before them by the accused also do not receive any corroboration. He further submitted that the prosecution, in the particular case, has not even proved the foundational facts so as to claim that the burden of proof of the fact as to what happened to the deceased-wife of the accused and how she died, shifted on the shoulder of the accused, all those facts being within CRLA No.718 of 2012 Page 5 of 10 - 6 - his special knowledge. He thus contended that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside. 9. Mr.S.N.Das, learned Additional Standing Counsel for the Respondent-State submitted that the prosecution case from the beginning is the accused was not pulling on well with his wife for his own fault and was frequently quarrelling with his wife in defending his own wrong doings. He further submitted that since the accused and the deceased-wife were residing together and the death of the wife of the accused has taken place on account of throttling, the accused having not come forward with any explanation as regards such death of his wife Sima, the conviction against the accused is well in order. He further submitted that the evidence of P.Ws.3 & 4 with regard to confession of the accused being wholly believable, with all the above evidence on record, the Trial Court has rightly convicted the accused. 10. The death of the deceased has been proved to have taken place on account of throttling, as has been deposed to by the Doctor (P.W.11) conducting autopsy over the dead body of the deceased. The finding of the Doctor (P.W.11) as has been deposed and noted in the P.M. Report (Ext.10) appears to have not been challenged. The Doctor (P.W.11), in his post mortem report (Ext.10), has noted all such features suggestive of throttling and Page 6 of 10 CRLA No.718 of 2012 - 7 - basing upon that, he has stated on oath that Seema’s death was homicidal. In view of such unchallenged testimony of the Doctor (P.W.11), the prosecution is found to have established the fact that Seema met a homicidal death. 11. The point for determination now stands as to who is responsible for such throttling. 12. Admittedly, the accused is the husband of the deceased. The death of the deceased having taken place in the house, we, however, find that except these two above facets, the prosecution has not tendered any other evidence to show that during the relevant time or even the previous night, the accused was very much present in the house with the deceased Seema. That being not there in the evidence, it would not be permissible to say that burden of proof of the fact as to how Seema was throttled leading to her death shifted upon the shoulder of the accused by saying that the prove circumstances are enough to conclude that all those facts as to throttling of Seema were within the special knowledge of the accused. P.Ws.3 & 4 although have stated that the accused was present when they arrived in the house where Seema was lying dead, they are found to have not stated as to whether prior to such incident, the accused was with the deceased in the house. Their evidence is that the accused then being asked, told before them to Page 7 of 10 CRLA No.718 of 2012 - 8 - have killed his wife Seema by throttling and the Trial Court appears to have relied upon their version as regards such confession of the accused in holding the accused to be guilty of the crime. P.W.3 has stated that when he went to the house of the accused, he found Seema lying dead and the accused, being asked confessed to have throttling Seema to death. This witness, however, during cross-examination states to have never been examined by the police in course of investigation. It is the evidence of P.W.4 that when he proceeded to the house of the accused and found Seema lying dead, the accused, being asked, also admitted to have killed his wife by throttling by a napkin when P.W.3 does not state about the user of napkin to have been told to him by the accused and to that extent the so- called version of the accused is varying. P.W.3 does not state to have arrived at the house of the accused with P.W.4 nor P.W.4 says to have arrived in the house with P.W.3 and none even is saying to have seen each other. This P.W.4 also states to have not been examined by police in course of investigation. P.W.6, who is the brother of the deceased when says to have gone to the house of the accused after hearing about the death of his wife, has stated to have no knowledge as to how his sister died. The two witnesses (P.Ws.3 & 4) are not stating to have ever told Page 8 of 10 CRLA No.718 of 2012 - 9 - about such confession made before them by the accused to P.W.6 or any other villager, which raises suspicion as regards confession of the accused before them as such an important fact, how remained undisclosed which no such other circumstance in support of said silence comes to stand. P.W.6 is also not stating about the dissention between his sister and the accused. He even does not state to have seen the accused in his house where Seema was lying dead when he arrived in the house. P.Ws.3 & 4, having heard from the accused that he had killed his wife, have not informed the matter at the P.S. P.Ws.3 & 4 also are not stating that on their arrival in the house of the accused, the accused volunteered in saying to have committed the crime. They also do not state as to whether at that time, any other person was present in the house of the accused. The conducts of P.Ws.3 & 4 thus appear to be highly suspicious that having come to know about the commission of the crime by the accused, have maintained the silence in not divulging the same before anyone including before P.W.6 runs against the normal conduct and the I.O. when arrived, they state that they had never been examined by him in course of investigation. 13. 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 CRLA No.718 of 2012 Page 9 of 10 - 10 - Nepal Samadhar beyond reasonable doubt by leading clear, cogent and acceptable evidence cannot be sustained. 14. In the result, the Appeal stands allowed. The judgment of conviction and the order of sentence dated 22ND November, 2012 passed by the learned Additional Sessions Judge, Malkangiri, in Criminal Trial No.82 of 2012 are hereby set aside. Since the accused (Nepal Samadhar) is on bail, his bail bonds shall stand discharged. G. Satapathy, J. I Agree. (D. Dash), Judge. (G. Satapathy), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 02-Nov-2023 17:18:01 CRLA No.718 of 2012 Page 10 of 10