The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.79 of 2011 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 27.08.2011 passed by the learned Adhoc Additional Sessions Judge (F.T.C.), Balangir at Patnagarh in Sessions Case No.162 of 2010. Raju Deep ---- -versus- …. Appellant State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Ms. Deepali Mohapatra, (Advocate) For Respondent - Mr P.K. Mohanty, Additional Standing Counsel
Legal Reasoning
CORAM: MR. JUSTICE D.DASH MR. JUSTICE G. SATAPATHY Date of Hearing : 01.12.2023 : Date of Judgment: 19.12.2023 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 27.08.2011 passed by the learned Adhoc Additional Sessions Judge (F.T.C.), Bolangir at Patnagarh in Sessions Case No.162 of 2010 arising out of G.R. Case No.253 of 2010 corresponding to Khaprakhol P.S. Case No.89(2) of 2010 on Page 1 of 9 JCRLA No.79 of 2011 {{ 2 }} the file of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Patnagarh. The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life with fine of Rs.2,000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment for a period of six months for the said offence. 2. Prosecution Case:- On 01/02.07.2010 around 3.30 a.m. one Mahabirsingh Bariha, Home Guard (P.W.4) while on patrol duty informed the Inspector-in-Charge (IIC), Khaprakhol Police Station that a patient sustaining burn injuries with serious condition had been shifted in a vehicle to the Sub-Divisional Hospital, Patnagarh (for short, the SDH) for treatment., which he came to know from the person who was accompanying the patient. Receiving the above information, the IIC entered the said fact in the Station Diary Book maintained at the Police Station and proceeded to the SDH, Patnagarh to ascertain about the matter. Having arrived in the Hospital, the IIC came to know that one Sukanti Kumbhar had been admitted into the Hospital with serious burn injuries and was undergoing treatment being in an unconscious stage. At that juncture, one Dayadhar Bibhar (P.W.8) orally reported before the IIC that last night when he was sleeping in his house during the midnight hour, he heard some sound from the house of the JCRLA No.79 of 2011 Page 2 of 9 {{ 3 }} accused, namely, Raju Dip and he having proceeded to the house found accused Raju Dip opening the door and shouting that “Kanti Pudi Jauchhe”. He further stated that hearing the shout, neighbours came and when he asked the deceased the reason while crying for the sufferings on account of burn injuries all over her body, she disclosed that she herself poured kerosene on her body and was trying to get her ablaze by lighting the matchstick but failed in her attempt and thereafter her husband (accused) lighted the matchstick and threw it at her which resulted her condition like that. The wife of the accused, namely, Sukanti Kumbhar with such burn injuries was shifted to the SDH, Patnagarh where she succumbed to the injuries. 3. The above oral report of the Informant (P.W.8) was reduced into writing by the I.I.C. in presence of the witness. On the basis of the above written report, the IIC (P.W.9) registered the case and took up investigation. In course of investigation, he examined the Informant and other witnesses, he then issued injury requisition and recoded the statement of the deceased. He also visited the spot and prepared the spot map (Ext.9). The wearing apparels of the deceased, one plastic bottle having smell of kerosene, used match stick and other articles were seized under seizure list (Ext.1 and 2 respectively). He also held inquest over the dead body of the deceased and prepared the report (Ext.15). He then sent the dead body for Post Mortem Examination and arrested the accused and forwarded him to the JCRLA No.79 of 2011 Page 3 of 9 {{ 4 }} court. Finally, on completion of the investigation, Final Form was submitted against the accused placing him to face Trial in the Court of law for commission of offence under section 302 IPC for committing the murder of his wife, namely, Sukanti Kumbhar. 4. Learned S.D.J.M., Patnagarh on receiving the Final Form as above, took cognizance of the said offences and after observing the formalities committed the case to the Court of Sessions. That is how the trial commenced by framing the charge against the accused for the said offences. 5. In the trial, the prosecution in total has examined nine (9) witnesses. Out of whom, the Informant, who is the maternal uncle of the deceased is P.W.8, who reported the incident orally before the I.O. (P.W.9) along with P.W.6. P.Ws.1 and 6 are also the maternal uncle of the deceased, P.W.3 and P.W.7 are the two police staffs, P.W.4 is the Home Guard, who gave information regarding the shifting of the deceased to hospital, P.W.5 is the Medical Officer, who treated the deceased and subsequently conducted the Post Mortem Examination and P.W.9 is the Investigation Officer of the case. The prosecution besides tendering evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Ext.1 to Ext 17. Out of those important are the F.I.R. (Ext.7/4), inquest report (Ext.15), seizure list (Ext.1,2,,8/1,10 and 11 respectively) and postmortem JCRLA No.79 of 2011 Page 4 of 9 {{ 5 }} report (Ext.6). That apart the seized plastic bottle, brunt match stick and half brunt saree, saya and one lungi which have been produced during trial as Material Objects (M.O.I to M.O.V). 6. Defence case is that of denial and false implication. It is stated that the deceased accidentally caught fire. However, no evidence has been tendered from the side of the accused in support of his defence. 7. Learned counsel for the Appellant (accused) submitted that the evidence let in by the prosecution as regards the dying declaration is not at all acceptable. She submitted that the Informant (P.W.8) has come to depose and gave a different picture than what he had narrated in the F.I.R. (Ext.7/4). She further submitted that P.W.1 has also exaggerated his version which is apparent that when he admits to have not stated anything about the dying declaration during investigation in her statement which was recorded by the Investigating Officer, it was for the first time she was so stating. Thus it is seen that she had developed such a story during trial. It was also submitted that the evidence of P.W.2 being dependent upon the acceptance of the evidence of P.W.1 that also stands unbelievable. She next submitted that P.W.6 and P.W.8 when have given different picture of the incident as their evidence are not consistent and when the defence set up by the accused on the face of the evidence record appears to be probable, the Trial Court has gone JCRLA No.79 of 2011 Page 5 of 9 {{ 6 }} wrong in convicting the accused for commission of offence under section 302 of the IPC in holding him to be responsible for the death of this wife. 8. Learned counsel for the Respondent-State submitted all in favour of the finding of guilt against the accused as has been rendered by the Trial Court holding him to be guilty for committing the offence under section 302 of the I.P.C. According to him, the witnesses like P.W.1 and others when have immediately arrived near the deceased and they state to have learnt from the deceased that it was the accused who had thrown lighted match stick at the deceased who was then got doused with kerosene, the conviction of the accused basing upon the same is not liable to be disturbed, 9. Keeping in view the submissions made, We have carefully read the judgment passed by the Trial Court. We have also perused the evidence of the prosecution witnesses, i.e., P.Ws.1 to P.W.9 and have also travelled through the documents admitted in evidence and marked Exts.1 to Ext.17. 10. P.W.1 is an important witness for the prosecution and he has lodged the F.I.R. (Ext.7/4). He is a neigbour of the accused and the deceased. As per the F.I.R. version and also the evidence, hearing the shout, he had gone to the house of the accused. It has been noted in the F.I.R. that when P.W.1 saw the accused, the accused immediately disclosed before him that Kanti (nick name JCRLA No.79 of 2011 Page 6 of 9 {{ 7 }} of the wife of the accused, namely, Sukanti) was getting brunt. It be stated here that Kanti is the nick name of the wife of the accused who is the deceased and her full name is Sukanti. It has then been stated that Sukanti being asked stated that she herself had poured kerosene over her body and tried to light the match stick, which she could not do and then the accused came and lighting the match stick, threw at her body for which she had received such injuries. So, P.W.1 has stated about the declaration made by the deceased shortly after the incident. The evidence of P.W.1, however, is silent that the deceased had tried to light the match stick, although he states the deceased to have stated that she herself had got doused with kerosene. P.W.1 does not state as to how and wherefrom the accused got the matchbox with the matchstick to have been told by the deceased. It is also not stated that the deceased had disclosed anything about that to P.W.1. It is not stated that the deceased told P.W.1 that from some other place the accused brought the matchstick or he took the same matchbox with sticks which the deceased was having and attempting to light and set her ablaze. P.W.2 is the witness who has stated to have gone in the night to the house of the accused. He does not state about the presence of P.W.1 by the time he arrived. Although he states that hearing the shout of the accused, he went outside, this P.W.2 does not state to have asked anything to the deceased nor the deceased to have disclosed anything before him. P.W.6 has stated that at Khaprakhol when the Police JCRLA No.79 of 2011 Page 7 of 9 {{ 8 }} Babu inquired from the deceased regarding the incident, she had told that after she herself failed in her attempt of setting her ablaze having poured with kerosene as she could not light the matchstick and the accused took the matchbox and lighting the stick throw at her. This P.W.6 is giving out totally a new story that it was so disclosed by the deceased at Khaprakhol. No police personnel has been examined to support the version of P.W.6. On the other hand, the conduct of the accused is of significance that immediately he shouted and as stated by P.W.8 he was running towards their hamlet holding a bucket and being asked, he disclosed before P.W.8 that his wife was on fire. One thing stands very hard to believe that the deceased herself poured kerosene over her and then the accused threw lighted matchstick at her. As per the version of P.W.1 in the F.I.R., it has been suppressed during evidence that the deceased had attempted herself to get her ablaze and that failed, when ultimately she could not light the matchstick. But it is not stated as to where the matchbox with sticks held by the deceased went and how the matchbox with the sticks came to the hands of the accused. More importantly, when P.W.1 has stated about such dying declaration, he admits to have not disclosed about that when he was examined in course of investigation after reporting about the incident. The defence story in view of above discussed evidence rather appears to be probable. JCRLA No.79 of 2011 Page 8 of 9 {{ 9 }} 11. In such state of affair in the evidence, we are not in a position to conclude that the prosecution has established the charge against the accused beyond reasonable doubt. 12. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 27.08.2011 passed by the learned Adhoc Additional Sessions Judge (F.T.C.), Bolangir at Patnagarh in Sessions Case No.162 of 2010 are hereby set aside. Since the Appellant (Accused), namely, Raju Deep is on bail, his bail bonds stall stand discharged. G. Satapathy, J I agree. (D. Dash), Judge. (G. Satapathy), Judge. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 20-Dec-2023 15:54:13 JCRLA No.79 of 2011 Page 9 of 9