The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA Nos.450 & 439 of 2016 (Both the Appeals U/S.374 of the Code of Criminal Procedure, 1973 arise out of the judgment dated 16.08.2016 passed by Shri Biraja Prasad Dutta, Sessions Judge, Sundargarh in S.T. Case No.88 of 2015 corresponding to G.R. Case No.121 of 2015 arising out of Rajgangpur P.S. Case No.59 of 2015 of the Court of learned J.M.F.C., Rajgangpur) Biju @ Bijaya Lakra (In CRLA No.450 of 2016) … -versus- Appellant State of Odisha Parshu @ Parshram Lakra @ Parsuram Lakra (In CRLA No.439 of 2016) … … Respondent Appellant -versus- State of Odisha … Respondent For Appellants : Mr. A.K. Sahoo, Advocate For Respondent : Mr. P.K. Mohanty, ASC CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :24.01.2024 DATE OF JUDGMENT:18.04.2024 G. Satapathy, J. 1. Since these two appeals arise out of one and same case record, the same are heard together and CRLA Nos.450 & 439 of 2016 Page 1 of 14
Decision
disposed of by this common order with the consent of the learned counsel for the parties. 2. The appellants having been convicted and sentenced by the learned Sessions Judge, Sundargarh in ST Case No.88 of 2015 have preferred these two appeals. The learned Sessions Judge by the impugned judgment passed on 16.08.2016 convicted the appellant Biju @ Bijaya Lakra for offences punishable U/Ss.302/201/34 of Indian Penal Code (in short the “IPC”) and the appellant Parshu @ Parshram Lakra @ Parsuram Lakra for the offences U/Ss.201/34 of IPC and accordingly, on 17.08.2016 sentenced, the appellant Biju @ Bijaya Lakra to undergo imprisonment for life and to pay a fine of Rs.10,000/-, in default whereof, to undergo Rigorous Imprisonment (RI) for two years more for offence U/S.302 of IPC and both the appellants to undergo RI for three years and to pay a fine of Rs.10,000/-, in default whereof, to undergo further RI for six months for offence U/Ss. 201/34 of IPC with stipulation of sentences to run concurrently with setting-off the pretrial detention of CRLA Nos.450 & 439 of 2016 Page 2 of 14 each of the convicts against their substantive sentences. An overview of prosecution case: 3. The convict Biju @ Bijaya Lakra of village Laing had married to the deceased Basanti Lakra around 15 years before and soon after the marriage, the convict Biju @ Bijaya Lakra was regularly torturing the deceased physically as well as mentally. On 29.03.2015 in the morning, the convict Biju @ Bijaya Lakra informed the younger brother of the deceased- Kunu Majhi (PW1) by saying the deceased to have committed suicide by hanging herself. On receipt of this information, PW1 and others rushed to the house of convict Biju @ Bijaya Lakra and found there the deceased lying dead with blood stain on her neck. On ascertaining the deceased to have been killed by the convict Biju @ Bijaya Lakra in the previous night on 28.03.2015 by assaulting her in abbreviated condition and finding the dead body to have hurriedly cremated by both the convicts-appellants and others burning the dead body, which is not the custom of their CRLA Nos.450 & 439 of 2016 Page 3 of 14 community, since the dead body in their community is being buried after death, on 31.03.2015 at about 8AM PW1 lodged the FIR (Ext.1) against Biju @ Bijaya Lakra and others before IIC, Rajgangpur Police Station, who registered P.S. Case No.59 of 2015 for commission of offences punishable U/Ss.302/201/34 of IPC and entrusted the investigation to SI of Police- PW13 Pragyan Pritam Jena, who in the course of investigation, examined the informant and witnesses, recovered and seized some incriminating materials including material pursuant to the disclosure statement of the convict Biju @ Bijaya Lakra and ultimately, on completion of investigation, submitted charge-sheet against the convicts for offence U/Ss.302/201/34 of IPC under which cognizance was taken upon finding sufficient materials and both the convicts were sent up for trial after they did not plead guilty to the charge for the aforesaid offences. 4. In support of the charge, the prosecution examined PWs.1 to 14 and relied upon documents under Exts.1 to 15 as against no evidence whatsoever CRLA Nos.450 & 439 of 2016 Page 4 of 14 by the defence. Of the prosecution witnesses examined in this case, PW1 is the informant-cum- brother of the deceased, so also PWs.2, 3 (cousin) and 11 (cousin); PW4 is the co-villager-cum-scribe of the FIR; PWs.5, 7 and 8 are the co-villagers-cum-post occurrence witnesses; PW6 is the paternal uncle of the deceased; PW9, 10, 12 and 14 are the seizure witnesses and PW13 is the IO. 5. The plea of the appellants-convicts in the course of the trial was one of the complete denial and false implication. In addition, they took the further plea that in their community, the dead body is cremated as well as buried on death. 6. After appreciating the evidence on record upon hearing the parties, the learned trial Court convicted the appellants by mainly relying upon the circumstantial evidence of last seen theory, unnatural death of the deceased, non-explanation of cause of death of the deceased, cremation of dead body instead of burying it and recovery of some articles pursuant to disclosure statement of the convict-Bijaya Lakra. CRLA Nos.450 & 439 of 2016 Page 5 of 14 Rival Submissions: 7. In assailing the impugned judgment of conviction and order of sentence, Mr. A.K. Sahoo, learned counsel for both the appellants-convicts has submitted that the learned trial Court has committed error in appreciating the circumstantial evidence by shifting the burden in terms of Section 106 of Evidence Act on the convicts to explain as to how the deceased died, but the fact remains that the prosecution is never relieved of the duty of establishing its case beyond all reasonable doubt and in this case, the prosecution has utterly failed to establish that convict Biju @ Bijaya Lakra had committed the offence of murder of the deceased and when the charge of murder is failed, the liability of offence U/S.201 of IPC would thereafter automatically vanishes. He has further submitted that even if the evidence on record are taken into consideration, no offence U/S.201 of IPC would be found established against any of the convicts since the dead body was cremated in presence of the informant and other villagers and the CRLA Nos.450 & 439 of 2016 Page 6 of 14 dead body was cremated on the advice of the villagers as stated by the prosecution witnesses and, therefore, the charge U/S.201 of IPC would bound to fail on that score only. In summing up his argument, Mr. Sahoo has prayed to allow the appeal to acquit the appellants of charges by setting aside the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, Sundergarh. 8. In reply, Mr. P.K. Mohanty, learned Additional Standing Counsel while supporting the impugned judgment of conviction and order of sentence, has, however, repelled the submissions advanced for the appellants by contending interalia that the prosecution evidence clearly establishes that the deceased and the appellant Biju @ Bijaya Lakra were last seen together being the husband and wife, but the appellant Biju @ Bijaya Lakra has failed to explain as to how the deceased died, rather the evidence suggests that the appellants had taken a false plea of commission of suicide by the deceased, which provides further link to the circumstantial evidence proved against the CRLA Nos.450 & 439 of 2016 Page 7 of 14 appellants and the same gains momentum, when the evidence on record suggests that the appellants had hurriedly disposed of the dead body against their custom by burning instead of burying it, since burying but not burning the dead body on death is the rule as per the custom in the community of the appellants and the deceased. Accordingly, Mr. Mohanty has prayed to confirm the conviction by dismissing both the appeals. Analysis of law and evidence 9. Keeping in view the rival submissions, this Court not only has meticulously gone through the impugned judgment of conviction, but also has extensively perused the evidence on record to examine the sustainability of conviction of both the appellants. One of item of evidence as relied on by the learned trial Court is the “last seen theory”, but since the deceased was the wife of convict Bijay Lakra @ Biju, it is quite natural that wife and husband would be residing in same house. However, the evidence on record goes to say that the deceased died on the intervening night on 28/29.03.2015, but PW1 lodged CRLA Nos.450 & 439 of 2016 Page 8 of 14 the FIR after two days of the occurrence. As it appears from the evidence of PW1 that the ground advanced for delay is that some advised him that there is nothing to worry about the death of the deceased and no necessity is there for informing the police, while some others advised him that since death is suspicious, police should be informed and he finally made up his mind to lodge the FIR after two days of death of the deceased. The evidence of PW1 further transpires that the convicts had informed him on 29.03.2015 that the deceased died by hanging herself and on hearing this news, he immediately proceeded to the house of the convict Biju and found the dead body of his sister(deceased) lying on the floor in the middle room with semi-circle imprint on the dorsal side of her neck and seeing this, he became senseless, but when he regained sense after one and half an hour later, the dead body was already taken for cremation and he, thereafter, rushed to the place of cremation only to find that the dead body of the deceased was set on fire and it was burning. What is most important CRLA Nos.450 & 439 of 2016 Page 9 of 14 is that PW1 had admitted in cross-examination that on the advice of others, he has lodged the FIR, but he has got no direct personal knowledge as to how the deceased died. On coming to the evidence of another witness-PW2, who is also the younger brother of the deceased and had accompanied PW1 to the house of the deceased soon after knowing about the death of the deceased, it transpires that he has also reiterated what PW1 has stated in his testimony meaning thereby, the convicts had informed them and they proceeded to the house of the convicts and found the deceased already dead. The evidence of PW2 rather supports the convicts in view of the fact that he has stated in his examination-in-chief that some villagers had advised for burying the dead body and some others decided to cremate the dead body and finally the dead body was cremated by setting it on fire. It is also elicited from PW2 in cross-examination that he has not seen the dead body of her deceased sister. One of the circumstances used against the convicts is hurriedly cremating the dead body, but the evidence CRLA Nos.450 & 439 of 2016 Page 10 of 14 of PW2 discloses that some of their villagers had advised to bury the dead body of the deceased and some of them had advised to cremate it. On the other hand, the cross-examination of PW7 transpires that he had attended the cremation of the dead body and at the spot of cremation, the informant and his brother were present, but they had not protested the cremation of dead body in any manner. 10. Yet, another circumstance, however, sought to be used against the convicts is cremation of dead body instead of burying it, but as it appears from the evidence of PW7 that since none, more particularly the informant and his brother had objected to the cremation of dead body, it cannot be considered as a incriminating/adverse circumstance of such nature to be used against the convicts. True it is that the death of the deceased was unnatural one, but incriminating the convicts for non offering any explanation as to cause of death appears to be contrary to the evidence inasmuch as the evidence of PWs. 1 & 2 clearly go to show that the convict Bijaya Lakra had informed them CRLA Nos.450 & 439 of 2016 Page 11 of 14 about the deceased committing suicide and they had been to the house of the convicts and they had also not protested to the cremation of the dead body, but subsequently, two days after the occurrence, PW1 lodged the FIR on suspicion which has no legs to stand in legal parlance inasmuch as suspicion, howsoever, strong cannot substitute for the proof. It is also not disputed that the deceased and convict Bijaya Lakra had married around 15 years before the death of the deceased and there was frequent quarrel between them, but as it admitted by PW1 that since they had never lodged any FIR relating to quarrel between the convict Biju @ Bijaya Lakra and the deceased, such circumstance becomes insignificant. However, some amount of dissension and insignificant quarrel between the husband and wife are normal wear and tear of a family life and that cannot be considered as a significant circumstance in the backdrop of evidence on record in this case. 11. On a conspectus of evidence on record together with discussion made hereinabove, there CRLA Nos.450 & 439 of 2016 Page 12 of 14 appears delay in lodging of FIR without any plausible explanation and the circumstance so relied upon by the trial Court are not of such nature and definite tendency so as to form a chain of events conclusively pointing towards the guilt of the appellants and inconsistent with the hypothesis of innocence of the convicts, nonetheless there is absolutely no evidence available on record to suggest the homicidal death of the deceased, which is sine qua non for charge of murder, but none of the witness has ever whispered about the homicidal death of the deceased. Besides, no inference can be drawn from the evidence on record to indicate that both the convicts cremated the dead body with an intention to cause disappearance of evidence of offence and at best, the prosecution case can reveal about only suspicion which cannot be a substitute for the proof. Consequently, the conviction of the appellants appears to be unsustainable in the eye of law for any offence and thereby, the conviction and sentence of both the appellants cannot be sustained in the eye of law. CRLA Nos.450 & 439 of 2016 Page 13 of 14 12. Resultantly, both the appeals succeed and are allowed on contest. As a logical sequitur, the impugned judgment of conviction dated 16.08.2016 and the order of sentence dated 17.08.2016 passed by the learned Sessions Judge, Sundargarh in ST Case No.88 of 2015 are hereby set aside and the appellants are acquitted of the charges. 13. Since the appellant No.1- Biju @ Bijaya Lakra appears to be in custody, he be set at liberty forthwith, if his detention is otherwise not required in any other case, whereas the appellant No.2-Parshu @ Parshuram Lakra being on bail upon appeal is discharged of his bail bonds. (G. Satapathy) Judge D. Dash, J. I Agree. (D.Dash) Judge Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 22-Apr-2024 10:27:30 Orissa High Court, Cuttack, Dated the 18th day of April, 2024/Subhasmita CRLA Nos.450 & 439 of 2016 Page 14 of 14