The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GCRLA No.65 of 2011 and CRLA No.99 of 2008 (From the order of conviction dated 25.01.2008 passed by the learned Additional Sessions Judge, Nuapada in Sessions Case No.35 of 2006) IN GCRLA No.65 of 2011 State of Odisha …. Appellant Jagadish Dalpati & Anr. …. Respondents -versus- Advocates appeared in the case: For Appellant : Mr. S.S. Kanungo, AGA -versus- For Respondent : Mr. M.K. Mohapatra, Adv. IN CRLA No.99 of 2008 Jagadish Dalpati & Anr. …. Appellants State of Odisha …. Respondent -versus- Advocates appeared in the case: For Appellants :
Legal Reasoning
Mr. M.K. Mohapatra, Adv. For Respondent : Mr. S.S. Kanungo, AGA -versus- Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 Page 1 of 14 CORAM: MR. JUSTICE D. DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-04.07.2023 DATE OF JUDGMENT:-24.07.2023 Dr. S.K. Panigrahi, J. 1. Since the GCRLA No.65 of 2011 and CRLA No.99 of 2008 arise out of the same judgment and order, both the cases were heard analogously and reserved for judgment. 2. The Government Appeal is filed at the instance of the State against the judgment and order dated 25.01.2008 passed by the learned Additional Sessions Judge, Nuapada in Sessions Case No.35 of 2006 acquitting the accused-Respondents in the aforesaid Government Appeal of the charge under Sections 302/201/306/494/34 of the Indian Penal Code, 1860 (hereinafter referred to as “the Penal Code” for brevity) and the Criminal Appeal is filed by the Appellants-Jagadish Dalpati and Satyabhama Dalpati challenging the said judgment and order passed by the learned Additional Sessions Judge, Nuapada in the said case convicting and sentencing each of them to undergo R.I. for one year and to pay fine of Rs.1000/- each, in default of payment of fine, to undergo R.I. for one month each for the offence under Section 498A/34 of the Penal Code. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 Page 2 of 14 I. CASE OF THE PROSECUTION: 3. The short facts of the prosecution case, as it reveals from the F.I.R. and other documentary evidence is that the deceased namely Hira Dalpati got married to the accused namely Jagadish Dalpati in the year 1997 as per their caste and customs. They had a son and a daughter together. The accused on 25.05.2004 kept a married lady of his village namely Satyabhama as his wife and thereafter both Satyabhama and Jagadish started torturing the deceased. Due to regular abuse, the deceased was forced to leave the house of the accused person and stayed in her father’s house. 4. However, two months prior to the death of the deceased, the accused went and brought the deceased to their home through mediation. Unfortunately, on 19.05.2006 at about 9 pm the father of the informant got information that his daughter has been killed by both the accused person and thereafter burnt the dead body. To that effect, case was registered against the Appellants and they were arrested and after completion of investigation, they were charge sheeted under Section 302 of the Indian Penal Code. After the charge was framed, the trial was completed by the Addl. Sessions Judge, Nuapada and the Appellant was acquitted. Hence, the state has filed this appeal against the order of the Sessions Judge. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 Page 3 of 14 II. SUBMISSION OF THE STATE/ APPELLANT: 5. Mr. S.S. Kanungo, learned counsel for the State/Appellant has contended that the learned Trial Court erroneously acquitted the accused persons without discussing the evidence in its proper perspective. The evidence of PWs.1,5,6 and 7 who have categorically implicated the involvement of the accused persons in the alleged crime. The evidence of the above witnesses have not been shaken in any manner but the learned Trial Court without taking in to consideration of those witnesses have passed an order of acquittal. Furthermore, the case is purely based on circumstantial evidences. The prosecution has been able to prove the incriminating circumstances appearing against the accused, Jagdish Dalpati, which is given as follows: i. The accused had a motive to kill his wife. It is in the evidence on record that the accused kept a concubine though the deceased was his legally married wife and sometime before the occurrence the deceased had left him because of the torture on her by the accused and only two months before her death she has again brought by the accused to his house. Therefore the accused had a motive to kill her. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 Page 4 of 14 ii. Just before the death of the deceased, she was in the house of the accused. This is an important circumstantial evidence against the accused. The burden of proving the cause of the death of the deceased lies squarely on the accused as providing U/s.106 of Indian Evidence Act. It was in his special knowledge about the missing or death of his deceased wife. iii. The most vital circumstantial evidence against the accused is his conduct. It has come in evidence that though he was asked by the P.W.6 and 7 and others not to set fire to the dead body of his wife and though he was asked to inform the Police, he did not listen to the witnesses and set fire to the dead body of the deceased, thereby causing disappearance of evidence regarding the cause of the death of deceased. 6. The accused has not been able to give answer when his attention was drawn to the incriminating circumstance appearing against him which was recorded U/s.313 Cr.P.C. by the learned Trial Court and the learned Trial Court unfortunately has not taken in to consideration any of the points mentioned above while acquitting the accused, Jagdish Dalpati from the charges under Section 302/201 IPC. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 Page 5 of 14 III. SUBMISSION OF THE RESPONDENTS: 7. Mr. M.K. Mohapatra, learned Counsel for the Respondents submitted that the Respondents are completely innocent. He has contended that the deceased had committed suicide and he is not liable. He has further submitted that considering that this is a case of circumstantial evidence, the prosecution has not been able to prove the charges against the accused. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. 8. Learned Counsel has further submitted that even though the Appellants have stressed on relying on the depositions of PWs.1,5,6 and 7, however, there are several and major discrepancies in the statements of the concerned prosecution witnesses. Therefore, such depositions should be held to be unreliable. IV. CONCLUSION: 9. In order to drive home the charge against the accused, prosecution has examined as many as 9 witnesses. There are no eye witnesses and therefore due to lack of any form of direct evidence, the prosecution has tried to prove the charges through the way of circumstantial evidence. The Trial Court Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 Page 6 of 14 has acquitted the accused persons from the charges of 302, 306, 201, 494, 34 IPC and convicted them of harassment under Section 498(A) IPC. Therefore, it is pertinent to analyze the case through both the scenarios. 10. Before delving into the charges, it is pertinent to mention that the Trial Court has not conducted proper analysis of the charges in relation to the facts of the case. Moreover, there is lack of scrutiny of the Public Witnesses and major ingredients are missing from the judgement. 11. The prosecution has examined as many as 9 witnesses. Considering that the matter is dependent upon the circumstantial evidence, the prosecution has to establish the link beyond reasonable doubt. First and foremost, it is pertinent to mention here that the dead body of the deceased was burnt by the accused Jagadish Dalpati before it could be recovered. 12. The trial court is directed to take all such effective steps immediately in accordance with law to secure the presence of the Appellant to undergo the sentence as imposed. During investigation, the accused Jagadish Dalpati had reported to the P.W.8 (I.O.) on 18.05.2006 stating that the deceased was missing since 14.05.2006. P.W.8 had directed the A.S.I. to look into thus matter. After enquiry, the A.S.I. had reported that the accused Jagadish had two wives and the deceased had left Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 Page 7 of 14 the house on the plea of call of nature and did not return. During investigation, he found the said burnt ashes and 82 pieces of bone which had been thrown in Dhaban Nalla of the village. Further, he had seized two pieces of plastic rope from the spot and M.O.I. (axe) and M.O.II (knife) from the accused Jagadish. However, the I.O. and the prosecution have not been able to attribute the M.O.s to the death of the deceased. Therefore, any form of post mortem is not possible and thereby the death of the deceased could not be directly linked as homicidal. 13. Evidently, the prosecution has tried to prove the charges through circumstantial evidence. Out the 9 witnesses, P.W. 8 and P.W.9 are the investigating officers of the case. P.W.2, 3 and 4 have not supported the case of the prosecution. They have denied having any information regarding the death of the deceased. Moreover, P.W.4 and 9 have deposed that the M.Os. recovered from the accused are commonly available equipment in the village and cannot be particularly attributed to violent use. Therefore, the prosecution has relied on the deposition of P.W.1, 5, 6 and 7. 14. P.W.1 (Informant) is the father of the deceased. He reached the spot after the dead body of his daughter was burnt. He deposed that the accused Jagadish kept the female accused as his second wife. P.W.5 has corroborated the fact that 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: 29-Sep-2023 13:43:11 Page 8 of 14 accused Jagadish brought a second wife to the house. He has further deposed that he went back to his in-laws place to get back the deceased after mediation. However, in the cross- examination, the P.W.5 has not been able to place blame on the accused persons. 15. P.W. 6 has corroborated the story of the prosecution. He has further deposed that on 19.05.2004, he had met the accused Jagadish near the hotel, the latter used to work in. On asking about the whereabouts of the deceased, the accused had replied that the she had hanged herself on a Kusum tree. P.W.6 thereafter went to the spot and saw the dead body hanging. Consequently, P.W.6 met P.W.7 and they both asked the accused to report the matter and not burn the dead body. However, the accused did not pay any heed to them. This deposition has been corroborated by P.W.7. 16. However, in the cross-examination, P.W. 6 has stated that there was a cordial relationship between the accused Jagadish and the deceased. P.W,7 has stated he cannot state how the deceased died. Therefore, it is clear that there are major contradictions in the statements of the P.W. 5, 6 and 7. P.W.8 (I.O) has deposed that P.W.5 has not stated that the accused killed the deceased and burnt her. Evidently, there are major loopholes in the story of the prosecution and deposition of Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 Page 9 of 14 witnesses who have supported the prosecution. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab1, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. 17. In C. Chenga Reddy and Ors. v. State of A.P.2, the Supreme Court had observed that: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....”. 18. In State of U.P. v. Ashok Kumar Srivastava3, it was pointed out that great care must be taken in evaluating circumstantial