The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.576 of 2023 (An appeal U/S. 374(2) of the Code of Criminal Procedure, 1973 against the judgment passed by Shri P.K. Pattnaik, Sessions Judge, Mayurbhanj at Baripada in S.T. No.75 of 2018 corresponding to G.R. Case No. 978 of 2017, arising out of Bangriposi PS Case No. 107 of 2017 of the Court of SDJM, Baripada) Lalmohan Singh … Appellant State of Orissa -versus- … Respondent For Appellant For Respondent : Mr.S.K. Dwibedi,Advocate : Mr.G.N. Rout, ASC CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :12.10.2023 DATE OF JUDGMENT:04.12.2023 G. Satapathy, J. 1. This is an appeal by the convict challenging the judgment of conviction and order of sentence passed on 10.05.2022 by learned Sessions Judge, Mayurbhanj, CRLA No.576 of 2023 Page 1 of 16 Baripada in S.T. Case No. 75 of 2018 convicting the Appellant for offence punishable U/S. 302 of IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand) in default whereof, to undergo RI for six months. The Appellant was, however, acquitted for offences U/Ss. 498-A/436/201 of IPC by the impugned judgment. An overview of prosecution case 2. The Appellant was everyday quarrelling and assaulting his wife Shanti Singh (hereinafter referred to as the “deceased”) suspecting her character and accordingly, on a Tuesday on 21.11.2017, the Appellant had assaulted the deceased, but on the same day in the night, the neighbours of the deceased of village Ghunturusahi informed her mother that the house of her daughter and son-in-law had been burnt. On receipt of the phone call, the mother of the deceased-cum- Informant PW-3 Kuni Singh rushed to the spot along with some of her villagers and found her deceased daughter killed and burnt by the convict. CRLA No.576 of 2023 Page 2 of 16
Legal Reasoning
On 22.11.2017 at 10am, PW 3 lodged an FIR against the Appellant under Ext. 3 before IIC, Bangiriposi who registered PS Case No. 107 of 2017 for offences punishable U/Ss. 498-A/302/436/201 of IPC and directed SI of Police PW 17 Prafulla Barik to take up investigation. Accordingly, PW 17 conducted an investigation by examining witnesses, making seizure of incriminating articles, preparing spot map under Ext. 9, conducting inquest over the dead body of the deceased under Ext.1. PW 17 also got the PM done over the dead body and arrested the convict on the same day i.e. 22.11.2017 and forwarded him to the Court on the next date. Further, PW 17 also sent the seized incriminating articles to SFSL, Rasulgarh for chemical examination and on conclusion of investigation; he submitted a charge-sheet against the Appellant. 3. After finding sufficient materials, the learned SDJM, Baripada took cognizance of offences and committed the accused together with papers to the Court of Sessions after observing necessary formalities of CRLA No.576 of 2023 Page 3 of 16 commitment. Accordingly,upon consideration of records and documents, learned Sessions Judge finding grounds for presuming the Appellant to have committed the offences framed charge against him for offences U/Ss. 498-A/302/436/201 of IPC, to which the convict did not plead guilty. This is how the trial commenced. 4. In support of the charge, the prosecution examined altogether 17 witnesses and relied upon documents under Exts. 1 to 14 and the material object MO-I and II as against the sole ocular evidence of the Appellant himself as DW 1. 5. The plea of the Appellant in the course of the trial was denial simplicitor and false implication due to love marriage with the deceased without the consent of his in-laws. 6. After appreciating the evidence upon hearing the parties, the learned Sessions Judge, Mayurbhanj at Baripada convicted the Appellant for offence U/S. 302 of IPC for committing uxoricide by mainly relying upon circumstantial evidence and sentenced the Appellant to CRLA No.576 of 2023 Page 4 of 16 the punishment indicated supra. The Sessions Judge, Mayurbhanj at Baripada, however, acquitted the Appellant by the impugned judgment for the charge U/Ss. 498-A/436/201 of IPC. 7.
Legal Reasoning
Mr. S.K. Dwibedi, learned counsel for the Appellant has submitted that although the learned trial Court has convicted the Appellant by relying upon the circumstantial evidence, but none of the circumstance was clear or cogent, rather the conduct of the Appellant was beyond doubt and he himself had requested the villager to rescue his wife which is established by the evidence of PW 16. It is further submitted that none of the circumstance as stated in Para 9 of the judgment establishes the guilt of the accused beyond all reasonable doubt, rather such circumstance taken cumulatively do not form any chain of event so complete as to establish the guilt of the Appellant and such circumstances are not at all consistent with the hypothesis of guilt of the Appellant, rather the same establishes a case consistent with the innocence of the Appellant. It is further CRLA No.576 of 2023 Page 5 of 16 submitted that the learned trial court has swayed away by emotion to convict the Appellant which is unsustainable in the eye of law. Learned counsel for the Appellant, accordingly, has prayed to allow the appeal by setting aside the judgment of the conviction and order of sentence. 8. On the other hand, Mr. G.N. Rout, learned ASC while supporting the judgment has emphatically submitted that the circumstance so culled out by the trial Court not only establish the guilt of the Appellant, but also clear, cogent and incriminate the Appellant. It is further submitted by learned ASC that the circumstances so proved against the Appellant are consistent only with the hypothesis of the guilt of the Appellant and such circumstances are of such nature and tendency, which unerringly point towards the guilt of the Appellant and it excludes every other hypothesis consistent with innocence of the Appellant. Learned ASC, has, accordingly, prayed to dismiss the appeal. CRLA No.576 of 2023 Page 6 of 16 9. In view of the rival submissions, this Court has travelled through the evidence on record extensively together with the impugned judgment to carefully examine the sustainability of the conviction of the Appellant on the touchstone of proof beyond all reasonable doubt. Admittedly, there is no direct evidence available on record and the learned trial Court has recorded the conviction against the Appellant on the basis of circumstantial evidence inferred from the evidence of the witnesses. The first circumstance which it has picked up is the homicidal death of the deceased, but such finding of the learned trial Court is required to be considered on the basis of evidence of Doctor who had conducted autopsy over the dead body of the deceased. The Doctor examining himself as PW13 had inter-alia testified in the Court that death was due to combined effect of injury to head and the burn, and the injuries were sufficient to cause death of a person in ordinary course of nature. According to PW13, he had found first, second and third degree burn covering whole body of the CRLA No.576 of 2023 Page 7 of 16 deceased and the internal organs were intact except the injury under external injury no.ii. In addition, the testimony of PW 13 under the heading “internal”, two injuries were noted; firstly, contusion of size 4cm X 3cm in occipital region and secondly, extradural blood clot on frontal region of brain. His(PW 13) evidence also disclosed that on 28.12.2017 on receipt of the query along with weapons of offence, “an iron rod (MOII) and Katuri(MOI)” and examining the injuries with reference to MOI and MOII, he, accordingly, furnished his opinion that the two injuries mentioned in Post Mortem report which were contusion to occipital region and extradural blood clot of frontal region of brain were possible by hard and blunt object like MOII, but in cross-examination, he admitted that the above two injuries were possible by the blunt side of MOI. On scrutiny of above evidence minutely, it appears that PW 13 nowhere has opined that the deceased suffered homicidal death, but the learned trial Court has jumped to a conclusion that the deceased died of homicidal death since no suggestion was made by CRLA No.576 of 2023 Page 8 of 16 the defence to PW 13 that the death of the deceased was not homicidal in nature. 10. Additionally, it is quite strange, but true that the learned trial Court has taken into consideration amongst others the answer by the Doctor to the query as to the possibility of contusion to occipital region and extradural blood clot on frontal region of brain by MOII to form his opinion ignoring or without taking into consideration the fact elicited from PW 13 in cross- examination that if a person fell on a blunt object, the injury can be possible. It is quite possible in a situation like this, while the deceased trying to save herself might have fell down on the ground or she might have fell down to the ground due to falling of roof of the thatched house as deposed to by PW16 in the cross-examination by prosecution and sustained the contusion and extradural blood clot. 11. Finding of blood stains on MOI and II were considered by the learned trial Court as incriminating circumstance against the Appellant-convict, but there CRLA No.576 of 2023 Page 9 of 16 appears serious infirmity in this regard since the forwarding report under Ext.13 sought for the answer of presence of blood stains on MOI and II, wearing trouser and nail clippings of the convict “marked as Exts. D, E, J and K” and presence of residue of kerosene in other seized materials “marked as Exts. A, B, C, F, H, L, J and K”, to which the chemical examiner in his report under Ext. 14 had answered under the heading of result of examination blood stains could be detected in the exhibits marked as ‘A to F & H to K’ and kerosene was detected in the exhibits marked as ‘A to C, F, H and J’, but could not detect kerosene, petrol and diesel in the exhibits marked as ‘I and K’. In the circumstance, therefore, it clearly appears that it would be unsafe to rely upon chemical examination report, since the question which was not sought for had been answered in affirmatively by stating that blood stains could be detected in ‘Ext. A, B, C, F, H, I, J and K’, where the presence of blood stains was never asked for thereof, rather it was asked whether these exhibits contain any CRLA No.576 of 2023 Page 10 of 16 residue kerosene or not. Moreover, no question has been put to the convict in his statement U/S. 313 Cr.P.C. to offer any explanation as to the presence of blood stains on MO I and II and thereby, the presence of blood stains on MOI and II cannot be relied upon as a circumstance against the Appellant. Moreover, it is also not understood as to how MOI and II were relevant since no evidence was tendered by the prosecution about use of MOI and II in committing the crime nor was it the prosecution case that the convict used MOI and II to kill the deceased. Law is fairly well settled that circumstances which have not been put to the accused in the statement U/S. 313 Cr.P.C. cannot be used against him to find out his guilt. On a cumulative reading of aforesaid facts, when it was not the case of the prosecution that the convict used MOI and II to eliminate the deceased nor any evidence being tendered to establish that the convict used MOI and II and no question being put to the convict in his statement U/S. 313 Cr.P.C to offer any explanation in this regard, mere seizure of MOI and II and finding blood stains CRLA No.576 of 2023 Page 11 of 16 thereon without knowing whose blood stains they were on the face of the present circumstance of comparative analysis of Exts. 13 and 14, it would not be prudent to rely upon such unfounded circumstances against the convict. 12. Yet another circumstance of frequent quarrel between the accused and deceased was also taken into consideration, but the same having negatively answered by the trial Court while answering to the charge U/S. 498-A of his IPC, it could not have been relied upon as a circumstance. One of the interesting aspects in this case is that although the learned trial Court had found the charge for offence U/S. 436 not established against the Appellant, but it has considered the thatched house caught with fire and the convict along with his two sons remaining present outside the house an incriminating circumstance against the Appellant. Besides, the learned trial Court has taken into consideration the failure of the convict to explain the incriminating circumstance as a strong ground against him in terms of Sec. 106 of CRLA No.576 of 2023 Page 12 of 16 Evidence Act, but law is fairly well settled that Sec. 106 of the Evidence Act never relieves the prosecution of the burden of the proof to establish the guilt of the accused beyond all reasonable doubt. It can only be invoked, if the foundational facts are established, such as the deceased and accused were last seen together just before the death of the deceased, but the accused fails to explain as to how the deceased died and there is no such situation in the present case. In addition, nothing has been established by the prosecution to place the burden on the convict U/S. 106 of the Evidence Act to explain the circumstance emerging against him for the death of the deceased. 13. Yet there is important evidence available in favour of the convict as elicited from the mouth of PW 16 which reads as under:- “When I arrived at the spot at that time of fire, accused Lalmohan told me that his wife was inside the house. It is a fact that as the fire was very high, the villagers cannot rescue Shanti (“deceased”) from the house and that Lalmohan shouted ‘bachao bachao’. xx xx xx CRLA No.576 of 2023 Page 13 of 16 To my knowledge there was no quarrel between accused Lamohan with his wife and they were leading a happy life”. 14. Moreover, the convict himself had adduced evidence in support of his plea that the thatched house was accidentally caught with fire from a Dibri (kerosene lamp) and he testified in the Court, when the bamboo straw were broken due to fire, he woke up and took his two sons in his hand and came outside through door and at that time, the thatched house collapsed and then he called the villagers who rushed to the spot and were also trying to extinguish the fire and he was trying to rescue his wife, but could not succeed. Even on the situation of evidence of DW 1(convict), no suggestion was given by the prosecution to the convict to say that he was the Author of the crime. In the circumstance, even otherwise by placing the burden U/S. 106 of the Evidence Act on the Appellant, it cannot be said that the Appellant had not offered any explanation as to the circumstance of death of the deceased. CRLA No.576 of 2023 Page 14 of 16 15. In the ultimate reappraisal of evidence on record, this Court does not find any incriminating circumstance proved by the prosecution against the convict convincingly and unerringly pointing towards the guilt of the convict and the circumstance stated to be relied upon by the learned trial Court appears to be not established and there was no chain of circumstance so complete to exclude every other hypothesis of innocence of the convict and the same were not of conclusive nature and tendency to disclose the only hypothesis of the guilt of the convict. 16. In the ultimate conspectus of the totality of evidence on record, this Court does not find the impugned judgment of conviction as recorded against the Appellant to be sustainable in the eye of law and proved the guilt of the convict beyond all reasonable doubt, rather the evidence is so deficient, it can only be said that the prosecution case is shrouded with mysteries and suspicions creating a grave doubt about truthfulness of the prosecution case. CRLA No.576 of 2023 Page 15 of 16 17. Resultantly, the appeal stands allowed. Consequently, the judgment of conviction and order of sentence passed on 10.05.2022 by learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No. 75 of 2018 are hereby set aside. 18. Since the Appellant is in jail custody, he be released forthwith, if his detention is not required in any other case. I Agree (G. Satapathy) Judge (D.Dash) Judge Orissa High Court, Cuttack, Dated the 4th day of December, 2023/Priyajit Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Designation: Jr. Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 05-Dec-2023 18:02:11 CRLA No.576 of 2023 Page 16 of 16