Niranjan Rout Vs State

ORISSA HIGH COURT: CUTTACK

CRLA No.186 of 2003

In the matter of an application under Section 374 (2) of Cr.P.C.

Niranjan Rout …… Appellant -versusState of Orissa …… Respondent For Appellant : M/s.Ajaya Ku. Pradhan and S.K.Swain For Respondent : Mr. L.Samantaray (Standing Counsel)

¶6

----------- ------------------------------- Date of Judgment: 19.12.2016 ----------- -------------------------------

¶7

P R E S E N T:

¶8

THE HONOURABLE SHRI JUSTICE I. MAHANTY AND THE HONOURABLE SHRI JUSTICE BISWAJIT MOHANTY

¶9

¶10

Biswajit Mohanty, J. The present Criminal Appeal is directed against

¶11

the judgement dated 27.6.2003 pronounced by the learned Addl.

¶12

Sessions Judge, Jajpur in Sessions Trial No.592/54 of 2000 arising out of G.R. Case No.936 of 1999 from the file of learned S.D.J.M.,

¶13

Jajpur convicting the appellant under Sections 498 A/302 of I.P.C.

¶14

2

¶15

and under Section 4 of the D.P. Act, 1961. Vide impugned judgment, for the offence under Section 498 A IPC, the appellant has been sentenced to underego R.I. for 2 years and to pay a fine of Rs.2,000/and in default of payment of fine to undergo further R.I. for 2 months and for the offence under Section 302 IPC, the appellant has been sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/-, in default of payment whereof to further undergo R.I. for 5 months. No separate sentence has been awarded for the offence under Section 4 of the D.P. Act, 1961. However, the learned trial court has directed that both the above noted substantive sentences are to run concurrently.

¶16

2. Prosecution story in brief is that the appellant was married to the deceased-daughter of P.W.7 in or around in 1998 in the month of July in Mahabinayak temple of Chandikhol. At the time of marriage, the parents of deceased which includes P.W.7 had given cash of Rs.5,400/- to the appellant and his father and had promised to pay another Rs.1,000/-. On account of inability to pay the balance amount, the appellant and his parents used to abuse and assault the deceased. On 13.5.1999, the deceased-wife died in her matrimonial house. The Gramarakhi of the locality (P.W.6) lodged a written report on the next morning about the death of the deceased at Jenapur Police Out Post, basing upon which, an unnatural death case was registered and the matter was enquired into. In course of

¶17

3

¶18

investigation, inquest report was prepared, post-mortem examination was held and some witnesses were examined. Subsequently, after receipt of the post-mortem report disclosing the death as homicidal, a coginzable case was registered under Section 302 IPC and on completion of investigation, charge sheet was filed against the appellant and his father. It is important to note here that during pendency of the Sessions Trial, the father of the appellant died in the month of December, 2001. Accordingly vide order dated 7.2.2002, the learned trial court noted that the case against the father of the appellant stood abated.

¶19

3. The plea of the appellant was of complete denial.

¶20

4. The prosecution in order to bring home charges examined as many as 10 witnesses including two doctors and three I.Os. The prosecution exhibited 8 documents. From the side of defence/appellant, none was examined.

¶21

5. P.W.1 and P.W.5 are the doctors, who conducted postemortem examination. P.W.2 and P.W.3 are the co-villagers of P.W.7, who happens to be the mother of the deceased. P.W.4 is the elder brother of the appellant, who turned hostile during trial. P.W.6 is the Gramarakhi, who first gave the written report about the incidence on 14.5.1999 under Ext.2. P.W.7 is the mother of the deceased and the mother-in-law of the appellant and she has deposed about the dowry demand made by the appellant and his parents and the abuse and

¶22

4

¶23

assault suffered by the deceased at their hand on account of her inability to meet the demand of dowry. P.W.8, P.W.9 and P.W.10 are the I.Os.

¶24

6. In examination under Section 313 of Cr.P.C., the appellant admitted his marriage with the deceased and the factum of death of his wife on 13.5.1999. However, he disputed the evidence of doctors, namely, P.W.1 and P.W.5 relating to their opinion that the deceased died a homicidal death caused by mainly strangulation and throttling leading to violent asphyxia and existence of injuries on the dead body. He also denied the question relating to demand of dowry and abusing and assaulting of the deceased on account of non-payment of balance cash. It appears that the appellant has denied most of the questions put to him during examination under Section 313 Cr.P.C. except admitting his factum of marriage with the deceased at Mahabinayak temple and the factum of death of his wife. However, in answering the last question, the appellant stated that the deceased ate inner stuff of palm fruit and felt acute pain in her stomach, and, thereafter, she died. As indicated earlier, vide impugned judgment dated 27.6.2013, the appellant was found guilty for commission of offences punishable under Section 302 IPC and Section 498 A of IPC read with Sectin 4 of the D.P. Act, 1961.

¶25

7. Mr. A.K.Pradhan, leanred counsel for the appellant mainly submitted that the learned court below had gone wrong in recording a

¶26

5

¶27

finding of guilt under Section 302 IPC solely on the basis of false answer given by the appellant in his statement under Section 313 Cr.P.C. as regard to the cause of death. According to him, this being a case of circumstantial evidence, the trial court in absence of other links in the chain could not have made use of false answer given by the appellant in his statement under Section 313 Cr.P.C. solely to record the conviction under Section 302 IPC. According to him, the chain of circumstance is totally incomplete in the present case. In this context, he relied on the decision of the Hon’ble Supreme Court in the

¶28

case of Sharad Birdhichand Sarda v. State of Maharashtra as reported in (1984) 4 SCC 116. He also submitted that the case of Anthony D Souza and others v. State of Karnataka as reported in JT. 2002 (9) SC 257 is fatually distinguishable and has no application to the present case. Secondly, he submitted that there is nothing in the evidence on record to show that immediately prior to the commission of crime, the appellant was last seen with the decased. Thus Section 106 of the Evidence Act has no application to the facts and circumstances of the present case. He also submitted that there is nothing in the evidence to show that the appellant had evil intention/motive to cause death of the deceased. The circumstances proved by the prosecution does not support such intention as has been found out by the learned trial court. Lastly, with regard to conviction under Section 498 A IPC and Section 4 of the D.P. Act, Mr.

¶29

6

¶30

Pradhan submitted that here also there exists no material to convict the appellant under the above noted Sections. Further, he submitted that in the meantime the appellant has undergone incarceration for more than 16 years.

¶31

8. Mr. L.Samantray, learned Standing Counsel defended the judgment of the learned trial court and submitted that the appellant has been rightly convicted under Sections 302 IPC, 498 A IPC read with Section 4 of the D.P.Act, 1961. He further submitted that since the appellant absconded for more than 7 months before surrendering in the court below, this is again a circumstance against the appellant and therefore, the impugned judgment does not require any interference by this Court.

¶32

9. Heard the arguments from both the counsel of the respective parties. Perused the L.C.R.

¶33

10. In order to appreciate the contention of both the parties, we have to scan the evidence. P.W.1 and P.W.5 are the doctors, who have conducted the autopsy over the dead body of Jhumani Dei, the wife of the appellant. Both have opined that death was caused mainly by strangulation or throttling leading to asphyxia and was homicidal in nature. Despite cross-examination, the evidence of P.W.1 and P.W.5 remain un-demolished. Thus, there is no doubt that the deceased died a homicidal death.

¶34

7

¶35

P.W.2 and P.W.3 are co-villagers of P.W.7, who happens to be the mother of the deceased. In their evidence, they have stated that they cannot say the reason for the death and circumstances under which the deceased died. Therefore, the evidence of these two is of little relevance.

¶36

P.W.4 happens to be the elder brother of the appellant, who stated that 9 months after the marriage, one day during noon the deceased died due to eating inner stuff of the palm fruit. After taking palm fruit, she felt acute pain in her stomach for which she was taken to Kantabandha Primary Health Centre and from there to Cuttack Medical College & Hospital, but on the way Jhumani died. He also stated that matrimonial life of the deceased was peaceful, and, there was never any demand for dowry. However, this witness has been declared as hostile.

¶37

P.W.6 is the Gramarakhi, who hearing about the incidence went

¶38

to the house of the appellant and found the dead body of Jhumani lying on the outer verendah of the house of the appellant. In the examination in-chief, he stated that he heard from some of the people of village-Raghunathpur to which the appellant belongs that the deceased died due to taking poison. P.W.6 proved the F.I.R. under Ext. 2.

¶39

P.W.7 in her examination in-chief stated that the deceased was

¶40

her daughter and she was married to the appellant and the deceased

¶41

8

¶42

died in her matrimonial home about 3 months after her marriage. She suspected that the appellant and his father had killed her daughter by putting crowbar on her neck. She saw her dead body in her matrimonial home on the following morning. She noticed bruise mark on the neck of the deceased. She further stated that she had paid cash of Rs.5,400/- as dowry to the appellant and his parents at the time of marriage and had promised to pay another Rs.1,000/- as per their demand. Due to inability to pay the balance amount, the appellant and his parents used to abuse and assault the deceasd most often and ultimately killed her. She further stated that two months after the marriage, the father of the appellant brought the deceased to her house and left her in her house. She heard from the deceased that she had been assulated by the appellant and his parents before being brought to her house for non-payment of balance dowry of Rs.1,000/-. On that occasion, the deceased stayed in her house for 16 days and then P.W.7 sent the deceased to her husband’s house with customary articles and four days thereafter, Jhumani died in the house of the appellant. She also deposed that she had not reported the matter to the police about the incidence but the police suo motu came, saw the dead body and registered the case. In her cross-examination, she stated that marriage was solemnised at Mahabinayak temple. At the time of marriage, there was no demand of dowry by the appellant and in-laws but out of her own accord, she

¶43

9

¶44

had given cash of Rs.5,400/- to the appellant. However, during crossexamination, she denied the suggestion that there was no demand of dowry by the appellant and his parents and that the deceased was not ill-treated by the appellant and his in-laws. She also denied a suggestion that deceased was not killed by the appellant and his inlaws and that the deceased was suffering from loose quick motion and died in course of her treatement at hospital. Thus, she stood by her evidence relating to cruel treatment and demand of dowry. However, it is important to note here that P.W.7 has not stated that during the stay of her daughter for 16 days with her, the deceased daughter told her that the appellant or his parents were planning to eliminate her. The deceased only spoke about assault part to P.W.7.

¶45

The three I.Os have mainly stated about the course of investigation and they proved F.I.R. under Ext.2, the dead body challan under Ext.4, spot map under Ext.8 and inquest report under Ext.3. P.W.10 stated about examining P.W.4. P.W.10 in his crossexamination denied the suggestion that the investigation was perfunctory.

¶46

Scanning of evidence shows that P.W.7 remains the material witness on behalf of the prosecution and as indicated earlier the entire case is based on circumstanicial evidence. There exists no evidence from the prosecution side to show that the appellant and deceased were last seen together inside the matrimonial house some

¶47

10

¶48

time prior to the alleged occurrence and admittedly the informantP.W.6 found the dead body lying on the outer verendah of the house of the appellant. So, provision of Section 106 of the Evidence Act, 1972 has no application to this case. No doubt, P.W.7 has spoken of cruelty in the form of abuse and assault on the deceased on account of non-payment of balance amount, however, it would be too much to infer that the same can be treated as a motive to murder the deceased in absence of anything more. In such background, merely because of false statement made by the appellant in his statement under Section 313 Cr.P.C. it may not be proper to convict the appellant under Section 302 IPC as many links in the circumstances are missing. In Sharad Birdhichand Sarda v. State of Maharashtra (supra), it has been made clear by the Hon’ble Supreme Court that following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstancial evidence:

¶49

“(1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency,

¶50

(4) they should exclude every possible hypothesis except the one to be proved, and

¶51

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

¶52

From a scanning of evidence, it is clear that most of the links

¶53

are missing here to complete the chain of evidence. With regard to

¶54

11

¶55

Section 498 A read with Section 4 of the D.P. Act, a scanning of evidence of P.W.7, however, show that there exists enough material to convict the appellant under Section 498 A IPC and Section 4 of the D.P. Act.

¶56

11. In such background, let us now examine the contention of Mr. Pradhan, learned counsel for the appellant. In the light of scanning of evidence made above, it is clear that so far as conviction under Section 302 IPC is concerned, most of the link in the chain of evidence remains unproved. Mr. Prdhan, rightly contended that the decision of Hon’ble Supreme Court in Anthony D’ Souza and others

¶57

v. State of Karnataka is factually distinguishable. In the said case five circumstancial evidence were proved unlike in the present case. As indicated earlier, Section 106 of Evidence Act has no application at all to the facts of the present case as there exists no proseuciton evidence that the appellant and deceased were last seen together some time prior to alleged occurrence in the matrimonial home or that the dead body was seen by any of the witnesses inside the matrimonial home. Rather as indicated earlier, at the time the informant went to the house of the appellant, the dead body was lying on the verendah. From the evidence of P.W.7 who has deposed generally on the cruelty part, being meted out to the deceased on account of non-payment of balance amount, it would be too much to infer from that the appellant had an intention to kill the deceased in

¶58

12

¶59

absence of anything more. Therefore, in the present case many links are missing unlike in the case of Anthony D’ Souza and others v. State of Karnataka (supra). There is no dispute over the proposition of law that in the case of circumstancial evidence where an accused offers false answer in his examination under Section 313 Cr.P.C. against the established facts that can be counted as a missing link or as an additional link to complete the chain. But here other links or most of the links in the chain are missing. Therefore, only on the basis of appellant having false answers in his examination under Section 313 Cr.P.C. against established facts cannot be made a ground for convicting the appellant under Section 302 IPC in the background of the test laid down in Sharad Birdhichand Sarda v. State of Maharashtra (supra) . In the present case, there are many missing links in the prosecution story as the links in the chain of circumstances leading to death of deceased have not been proved to exclude every possible hypothesis relating to innocence of the appellant. In such background we are not inclined to uphold the conviction of the appellant for conviction under Section 302 IPC. Further, it is well settled that statement made under Section 313 Cr.P.C. cannot form sole basis of conviction but the effect thereof has

¶60

to be considered in the light of other evidences brought on record. Here other evidence/links/circumstances have not been proved. Moreover, it is well settled that the statements made under Section

¶61

13

¶62

313 Cr.P.C. are no evidence. With regard to contention of Mr. Samantaray, learned Standing Counsel that the fact that the appellant, absconded for more than seven months should be treated as a circumstance against the appellant, we are not inclined to accept such submission in the background of the type of proseuciton evidence available in the present case for convicting the appellant under Section 302 IPC. Mere absconding cannot be treated as a determining link for completing the chain of circumstancial evidence. This has been made clear by the Hon’ble Supreme Court in the case of Matru @ Girish Chandra v. The State of Uttar Pradesh reported in 1971 (2) SCC 75, wherein it had been made clear that mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime, such is the instinct of self preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in complete the chain of circumstancial evidence which must admit of no other reasonable hypothesis than that of guilty of the accused. In the present case no other link in the chain of circumstantial evidence

¶63

14

¶64

has been proved. In such background, nothing much turns on the argument of Mr. Samantray, learned Standing Cousenl on the matter of absconding by the appellant.

¶65

12. For all these aforesaid reasons, we set aside the conviction of the appellant under Section 302 IPC. Since there exists evidence with regard to cruelty by the appellant and with regard to un-lawful demand of property as would appear from evidence of P.W.7, we leave the conviction of the appellant under Section 498 A IPC read with Section 4 of D.P. Act untouched. However, with regard to the sentence for commiting the offence under Section 498 A IPC, in the facts and circumstances of the case, we modify the sentence with regard to payment of fine by directing the appellant instead to pay a fine of Rs.200/- and in default to undergo further R.I. for 5 days. With regard to the offence under Section 4 D.P. Act, 1961, since no separate sentence has been awarded by the learned trial court, we also do not propose to award a separate ssentence as the appellant has suffered long incarceration.

¶66

Accordingly, the appeal is partly allowed and disposed of.

¶67

…………………………… Biswajit Mohanty, J. I. Mahanty, J. I agree …………………………… I. Mahanty, J.

¶68

Orissa High Court, Cuttack The 19th December, 2016/bns

Niranjan Rout v. State

Case brief

What is this about?

What did the court decide?

Niranjan Rout v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Santosh Kumar Singh Vs State of Orissa

Chandrakanta Sahoo Vs State of Orissa

Usa@Osha Malik Vs State of Odisha

Suryamani Mohanty Vs Sujata Mohanty

Santanu Ku.Kar Vs Sritirekha Mishra

Soubhagya Ku.Sahoo Vs Debala Sahoo@Jhili