The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO.427 OF 2017 In the matter of an Appeal under section 374(2) of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 30th November, 2016 passed by the learned Additional Sessions Judge, Bhubaneswar in Criminal Trial No.125 of 2015 arising out of C.T. Case No.765 of 2015. ---- Bhaskar @ Bhasia Naik @ Bhaskar Naik -versus- …. Appellant State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellant - Mr.K.Mohanty Advocate. For Respondent - Mr.Sitikant Mishra , Additional Standing Counsel CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING :24.03.2023 : DATE OF JUDGMENT: 06.04.2023 D.Dash, J. The Appellant, by filing this Appeal, has challenged the judgment of conviction and order of sentence dated 30.11.2016 passed by the learned Additional Sessions Judge, Bhubaneswar, in Criminal Trial No.125 of 2015
Facts
arising out of C.T. Case No.765 of 2015 corresponding to Kharavelanagar P.S. Case No.57 of 2015 of the Court of the learned S.D.J.M.,Bhubaneswar. CRLA NO.427 OF 2017 Page 1 of 11 {{ 2 }} The Appellant (accused) has been convicted for commission of offence under section-302 of the Indian Penal Code, 1860 (for short ‘the IPC’) and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- in default to undergo rigorous imprisonment for a period of six months. 2. Prosecution case is that the accused and the deceased were living as husband and wife since long in the house situated near Souchalaya of Mali Sahi, Bhubaneswar. On 20.02.2015, when it was around 1 a.m., the accused created serious disturbance in the house with the deceased and he dealt fist blows on her face as well as body. The deceased having sustained bleeding injuries raised hullah. Some inhabitants of the locality, hearing the hullah when arrived in the house, they found the deceased lying in a pool of blood. They then called the ambulance and shifted the deceased to hospital where she died on the next day morning. One Nagamani (informant-P.W.3) having lodged written report with the Sub-Inspector (S.I) of Police attached to Kharavelanagar Police Station, in the absence of Inspector-In-Charge (IIC) of the said police station, the case was registered and investigation commenced. The Investigating Officer (P.W.4) in course of investigation, visited the hospital, held inquest over the dead body of the deceased, prepared the report and then issued requisition for Post Mortem Examination. He also seized the wearing apparels of the deceased and having visited the spot, seized the incriminating articles under seizure lists. On completion of investigation, Final Form was submitted placing the accused to face the trial for commission of offence under section 302 of IPC. CRLA NO.427 OF 2017 Page 2 of 11 {{ 3 }} 3. Learned SDJM, Bhubaneswar, on receipt of the Final Form as above took cognizance of the said offences and after observing formalities committed the case to the Court of sessions. That is how the trial commenced by framing the charge for the above offence against the accused. 4. In the Trial, the prosecution in total has examined seven (7) witnesses. Out of them as already stated P.W.3 is the informant and P.W.1 & P.W.2 are the other witnesses who had gone to the spot immediately after the incident. The Doctor, who had conducted autopsy over the dead body of the deceased, is P.W.5 and P.W.7 is the Investigating Officer. The prosecution besides leading the above witnesses has also proved several documents which have been admitted in evidence and marked Ext.1 to 16. Out of those, the FIR is Ext.3, Inquest Report is Ext.1. The Spot Map prepared by P.W.7 is Ext.5 and the Post Mortem Report is Ext.13. The report of the Chemical Examiner, who had received those incriminating articles through Court are Ext.14 and 14/1. 5. The defence case is that of complete denial and false implication. Being given the opportunity, the accused, however, has not tendered any evidence. 6. The Trial Court on going through the evidence of the Doctor (P.W.5) and his report Ext.13 as well as the evidence of the witnesses P.W.1, P.W.3 and P.W.4, who had seen the dead body with injuries and that of the Investigating Officer P.W.4, who held inquest over the dead body and prepared the report has found the death of Sanjukta (deceased) to be homicidal. In fact this aspect of the case was not under challenge before the Trial Court and that is also the situation before us. CRLA NO.427 OF 2017 Page 3 of 11 {{ 4 }} The Doctor (P.W.5), who had conducted autopsy over the dead body of the deceased, has found several external injuries including the swelling of the size 8x5 c.m in the middle of forehead of the deceased. On dissection, he has found a hematoma of the size 12 c.m. x 8 c.m. underneath the said injury extending from left side to the right side of the forehead as well as another hematoma of the size of 8x6 c.cm. on the back of the head with fracture of the skull bone in the frontal and occipital area with associate fragmentazation and laceration of brain beneath it with a collection of blood of about 200 ml in and around the brain. It has also been noticed on dissection that there was fracture of sternum horizontally underneath the external injury of contusion of 13 c.m. x 6 c.m. over the manubrium sterni and hematoma has also been noticed in the inner space of 3rd, 4th and 5th space and fracture of 3rd, 4th and 5th ribs on the right side of 6 c.m. from the sternocostal junction. The evidence of all such injuries are ante mortem in nature and according to her, the death was due to coma led from the injuries on the vital organ like brain. His positive evidence is that the death is homicidal. It has also been deposed that the injuries on the brain are sufficient in ordinary course of nature to cause the death. The report (Ext.3) describes all such injuries in detail. The Investigating Officer during inquest had noticed several injuries on the body of the deceased which too has been deposed by other witnesses. With such evidence on record, We find ourselves to be wholly in agreement of the finding of the Trial Court that Sanjukta met homicidal death. 7.
Legal Reasoning
be sitting by her side and when We find that the accused has not offered explanation of any sort whatsoever for the occurrence and such death of Sanjukta in the house by sustaining the fatal injuries in which he was living with the deceased, In view of aforesaid evidence, We have no option to hold it is the accused who has intentionally caused the death of the deceased by inflicting such injuries which have been proved through the evidence of P.W.5 as fatal and sufficient in ordinary course of nature to cause the death. 14. For all the aforesaid discussion and reasons, this Court is led to hold the accused guilty for commission of offence under section 302 of the IPC CRLA NO.427 OF 2017 Page 10 of 11 {{ 11 }} in intentionally causing the death of Sanjukta. We, therefore, confirm the judgment of conviction and order of sentence which have been impugned in this Appeal. 15. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 30.11.2016 passed by the learned Additional Sessions Judge, Bhubaneswar, in Criminal Trial No.25 of 2015are hereby confirmed. The accused being on bail is hereby directed to surrender before the Trial Court forthwith and the Trial court is further directed to take all such coercive steps as provided in law to ensure the presence of the accused to be dealt with in accordance with law in serving out the sentence imposed upon him. (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. Dr.S.K. Panigrahi, J. I Agree. Gitanjali CRLA NO.427 OF 2017 Page 11 of 11
Arguments
Learned counsel for the Appellant (accused) submitted that the case is based on circumstantial evidence and there being no direct evidence in attributing the accused with the authorship of the injuries found on the CRLA NO.427 OF 2017 Page 4 of 11 {{ 5 }} dead body, the circumstances projected are too fragile and those even if are viewed cumulatively the chain of events is not getting complete in ruling out the such hypothesis other than the guilt of the accused. He submitted that simply because the accused was found in the house where the dead body was lying, that circumstance is not enough to fasten the guilty upon the accused that it is he who having inflicted the injuries upon the deceased has intentionally caused his death. 8. Learned counsel for the State inviting the attention of this Court to the evidence of P.W.1, P.W.2 and P.W.3 submitted that the prosecution has well established the charges against the accused that it is he who having inflicted the injuries upon the deceased has caused her death. According to him, as nobody was present in the house at that point of time and the accused is not coming with any sort of explanation whatsoever as to how and under what circumstance the deceased received those injuries so as to even remotely infer that there was intervention of any third hand. 9. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction passed by the Trial Court. We have also gone through the depositions of the witnesses P.W.1 to P.W.7 and have perused the documents admitted in evidence and marked Exts.1 to 16. 10. In order to find out the culpability of the accused and thereby to judge the sustainability of the finding of the Trial Court as regards culpability of the accused in commission of offence under section 302 of the IPC in intentionally causing the death of Sanjukta; we are now called upon to examine the evidence on record. 11. At this stage, it be stated that no such direct evidence has been led from the side of the prosecution that the accused had been seen to have inflicted those injuries upon the deceased as according to the prosecution, CRLA NO.427 OF 2017 Page 5 of 11 {{ 6 }} the offence having taken place inside the privacy of a house and when under circumstances the accused had all the opportunity to plan and commit the offence at the time and in circumstances of his choice; it is not possible for the prosecution to led any direct evidence to establish the guilt of the accused and the prosecution can not be blamed for not leading direct evidence. However, reliance being placed on some strong circumstances and those being taken into account with the non-explanation from the side of the accused have been projected, the Trial Court has held that those are sufficient to conclude that the accused is the author of the crime and none else. 12. The sister of the accused has been examined as P.W.1. She has stated that in the house, the accused and Sanjukta were staying for last five to six years. It has been deposed by P.W.2 that accused and the deceased were living as husband and wife in that house for quite a long period. The house of this witness (P.W.2) is situated by the side of the house of the accused. it is her evidence that in that night around 10 to 10.30 p.m., she heard quarrel to be going on in the house of the accused between the accused and his wife (deceased) and thereafter, she heard some sound of assault in the house when deceased Sanajukta was raising hullah inside the house by saying “MAALO MARIGALI LO”. She has stated to have gone to the house around 12.30 a.m. and knocked the door of the house from outside asking the accused to open the door to which the accused did not respond. She has further stated that when she went to the house by calling Nagamani (P.W.3) and others and knocked the door asking the accused to open, that was then also not paid any heed to. It is her evidence that they opened the door of the house and entered inside and they then found Sanjukta lying on the floor facing upward with marks of assault on her forehead and chest CRLA NO.427 OF 2017 Page 6 of 11 {{ 7 }} bleeding from her nostril and most importantly she says that at that point of time accused was sitting near the legs of Sanjukta. The incident having happened within a short span of time, the conduct of this witness in not informing the police about the quarrel going on in the house between the accused and the deceased which is commented upon the learned counsel for the accused is not at all of any such significance to view her above noted positive evidence with suspicion. The contradictions appear in her evidence is that she had not stated the Investigating Officer during investigation in her statement recorded under section 161 Cr.P.C. that when she knocked the door of the house and asked to open the door, the accused did not respond. Such said contradiction does not appear to be a material one to be taken note of to dub her evidence as doubtful and to blame her as untrustworthy witness. Although it has been stated by her that she had not stated before the police to have gone to the house of the accused again with Nagamani and P.W.3 and others, knocked the door and had called accused to open the door, the same in view of her unshaken evidence that she with others having broken the door of the house entered into the house and saw the deceased lying with the injuries and the accused sitting there is not a material contradiction. P.W.3 is the witness who had accompanied P.W.2 and had gone to the hose of the accused. It is her evidence that after knocking the door and calling the accused to open the door no response came from inside for which they broke open the door of the house. This part of the evidence that they broke open the house of the accused and entered inside receives corroboration from the evidence of the P.W.1. It is also her evidence that when they entered into the house, they found Sanjukta lying in senseless condition in a pool of blood and accused was then sitting near her legs which too has been stated by P.W.1 in clear terms. CRLA NO.427 OF 2017 Page 7 of 11 {{ 8 }} This witness had lodged the written report which has been treated as FIR Ext.3 which narrates all these facts. The only comment made with regard to the acceptability of the evidence of P.W.3 is that here the statement during the cross-examination that she had not presented Ext.3 and does not know as to who had written the same. But that in our considered opinion cannot be so taken to destroy the positive evidence of P.W.3 which receives corroboration from the evidence of P.W.2 that she having entered into the house of the accused by breaking the door, saw the deceased lying senseless with the injuries and the accused sitting near her legs. Thus We find the evidence of P.W.2 and P.W.3 to be very specific that they had been to the house of the accused in the night and knocked the door of the house asking the accused to open the same, and when it was not so done by the accused they entered into the house by breaking open the door and then had seen the deceased lying senseless with injuries on her person and the accused sitting in the very room by the side of her legs. There is nothing to suggest that any outsider was present at that time in the house. In view of such evidence on record, We find that the accused has not offered any explanation whatsoever during the trial not even before the witnesses who had seen her arrival. 13. The law in this regard is well settled that under section 106 of the Evidence Act where there is a fact especially within the knowledge of the accused, the burden of proving that fact by the accused is important. In case of Trimukh Maroti Kiran V. State of Maharashtra, (2006) 10 SCC 681 it has been observed as follows:- “If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their CRLA NO.427 OF 2017 Page 8 of 11 {{ 9 }} choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland V.Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Passayat, J. in State of Punjab Vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: (b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.” “Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of section 106 of the Evidence Act there will be a corresponding burden on the inmates of Page 9 of 11 CRLA NO.427 OF 2017 {{ 10 }} the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanantion.” It has also been held in case of Tamil Nadu V. Rajendran (1999) 8 SCC 679, where incriminating circumstances are put to an accused and he has no explanation to offer, this becomes an additional link in the chain of circumstances. The relevant passage reads as under:- “In a case of circumstantial evidence when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.” When the evidence as obtained from P.W.2 and P.W.3 that when they broke open the door of the house of the accused and entered, they saw the deceased lying with injuries in a senseless condition and the accused to