Orissa High Court
Pabitra Sahu vs State Of Orissa on 31 March, 2021
HIGH COURT OF ORISSA: CUTTACK.
CRA No.19 of 2002
From the judgment of conviction and order of sentence dated 31.01.2002
passed by Shri J.M. Patnaik, learned Additional Sessions Judge,
Nayagarh in S.T. Case No.152/26/3/11 of 1997/1995 (arising out of G.R.
Case No.46/94 of the court of the learned J.M.F.C., Daspalla).
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Pabitra Sahu ...... Appellant.
- Versus-
State of Orissa ...... Respondent.
For Appellant : M/s. D. Nayak, (Sr. Adv.),
Mr. Sangram Das, M. Mohanty.
R.K. Pradhan and P.K. Deo.
For Respondent : Mr. G.N. Rout,
Additional Standing Counsel.
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PRESENT:
SHRI JUSTICE S. K. MISHRA
AND
MISS JUSTICE SAVITRI RATHO
__________________________________________________________
Date of Hearing- 15.12.2020 : Date of Judgment- 31.03.2021
S. K. MISHRA, J. The sole Appellant- Pabitra Sahu assails his conviction
and sentence to undergo imprisonment for life under Section 302 of the
Indian Penal Code, 1860 (hereinafter referred to as "the Penal Code" for
brevity), to undergo rigorous imprisonment for three years under
Section 498A of the Penal Code and to undergo rigorous
imprisonment for two years under Section 4 of the Dowry Prohibition
Act, 1961 (hereinafter referred to as "the D.P. Act" for brevity) recorded
by the learned Additional Sessions Judge, Nayagarh in S.T. Case
No.152/26/3/11 of 1997/1995, as per the judgment of conviction and
order of sentence dated 31.01.2002. It was further observed that all the
sentences are to run concurrently. It is apparent that other two co-
accused persons, namely, Sarat Sahu and Susila Sahu have been
acquitted of the said charges by the learned Additional Sessions Judge,
Nayagarh.
02. The prosecution case, in short, is that the deceased
Puspalata was married to the Appellant Pabitra Sahu on 27.01.1993.
Since the parents of the deceased were no more by the time of her
marriage, her marriage was performed by her two brothers Srinibas Sahu
(P.W.1) and Pitabas Sahu (P.W.2). After the marriage, the deceased
Puspalata lived in her in-laws' house. The accused Susila Sahu is the
mother-in-law of the deceased Puspalata and the accused Sarat Chandra
Sahu is the husband of her sister-in-law namely accused Srimati Sahu.
Accused Srimati Sahu since dead was staying with her husband- accused
Sarat Chandra Sahu in village Daspalla whereas Appellant
Pabitra Sahu was living then in the house of Pitabasa Sahu. At the
time of marriage, P.Ws.1 and 2 had given gold ornaments, furniture and
utensils towards dowry. After the marriage, all the accused persons
demanded that a piece of land situated at Hospital Chhak of Daspalla to
be registered in the name of the Appellant and as the deceased Puspalata
did not agree to the same, she was tortured by all the accused persons.
It is further alleged that the Appellant brought the deceased
to her paternal house and left her there saying that unless the land is
registered in his name, the deceased would not be accepted in her in-
laws' house. During her stay in her parental house, the accused Sarat
Chandra Sahu had come to their house several times and had insisted
upon P.Ws.1 and 2 to get the land registered in favour of Pabitra and had
also threatened with dire consequences if it was not done. Ultimately,
the brothers and sisters of the deceased registered the said land in favour
of the deceased and sent the deed of conveyance to the father-in-law of
the deceased. After some days, her mother-in-law Susila came and took
the deceased back to their house.
It is the further case of the Prosecution that the Appellant
and other accused persons continued to torture the deceased
saying as to why the land was registered in favour of the deceased
instead of the Appellant. Deceased Puspalata had told several times to
her brothers and sisters about the torture to her by the accused persons
and about their demand for registration of a piece of land in the name of
the Appellant towards dowry. The deceased died on 27.04.1994. About
ten days prior to her death, the Appellant and the deceased had come to
the house of P.Ws.1 and 2 in a happy mood and the Appellant told them
that he would have a shop room on that piece of land and stay there. The
Appellants also told them that he was making arrangement for bricks and
other house building materials to make construction of a shop room on
the land which was given to Puspalata by them. On the same day
evening, while the deceased was grinding black gram for preparation of
Pitha, all on a sudden, she became unconscious and fell down. She was
immediately carried to Daspalla Hospital, where she was declared dead.
Dr. Umesh Chandra Mishra (P.W.11) who was the medical officer
submitted a report (Ext.11) to the Daspalla Police Station stating therein
that the deceased was admitted to Daspalla Hospital at 09.45 P.M.,
having repeated attacks of convulsion and expired at 10.00 P.M. on that
day.
Sadhu Charan Patra (P.W.9), the then A.S.I. of Police of
Daspalla Police Station was directed by the O.I.C. Sarbeswar Sahu to
enquire into the matter after registering U.D. Case No.6/94. During the
course of enquiry, P.W.9 visited to Daspalla Hospital and held inquest
over the dead body of Puspalata and sent the dead body for post-mortem
examination on the next morning. During the course of enquiry it came
to the light that on 27.04.994 evening i.e. on the day Puspalata died, the
Appellant Pabitra Sahu had brought some Rasagolas and Maize (Maka)
to their house and told Puspalata that accused Srimati and her husband
accused Sarat had expressed their sorrow as she was not visiting their
house and accused Srimati had sent those Rasagolas which she should
take. On the request of Appellant Pabitra, the deceased Puspalata took
one or two Rasagolas and then attended her work. After sometime, she
vomited and became unconscious for which she was taken to hospital
and expired there as stated above. On 28.04.1994 at about 2.30 P.M.
P.W.9 had seized seven numbers of Rasagolas kept in a polythene bag
produced by Srinibas Sahu (P.W.1) which were in broken state and smell
of pesticide was coming from those Rasagolas. He had also seized the
Xerox copy of the R.O.R. of Plot No.1330 with an extent of 2 decimals
and 5 kadis of land recorded in the name of Puspalata and released
the same in the zima of Srinibas Sahu.
P.W.9 lodged the written report before the O.I.C., Daspalla
Police Station vide Ext.4 on which a case under Section 498A/304B/328
of the Penal Code and Section 4 of the D.P. Act was registered. During
the course of investigation, the then O.I.C., Daspalla Police Station
(P.W.7) took charge of all the records of U.D. Case from P.W.9 and
visited the father's house of the deceased. He received the post-mortem
examination report. He sent the viscera of the deceased collected during
post-mortem examination report. He sent the viscera of the deceased
collected during post-mortem examination and the seized Rasagolas for
chemical examination to S.F.S.L., Rasulgarh, Bhubaneswar through the
learned J.M.F.C., Daspalla and on chemical examination, insecticidal
poison was detected in the viscera as well as in the seized Rasagolas.
After completion of investigation, charge-sheet was submitted against all
the accused persons under Sections 498A/ 304B/328 of the Penal Code
and Section 4 of the D.P. Act. But charges were framed against the
accused persons under Section 302/34 of the Penal Code instead of
Section 328 of the Penal Code, since the learned trial judge was of the
opinion that there was prima facie material on record to show that the
accused persons had killed Puspalata by administering poison in
Rasagolas.
During the course of trial, since the accused Srimati Sahu
died, the case against her was abated vide order dated 15.12.2001.
03. Defence took the plea of complete denial of the charge.
04. In order to prove its case, the prosecution examined eleven
witnesses. P.Ws.1 (Srinibas Sahu) and 2 (Pitabasha Sahu) are the two
brothers and P.W.4 (Tilotama Sahu) is the sister of the deceased
Puspalata Sahu. P.W.3 (Chitaranjan Sahu), P.W.5 (Purna Chandra
Mishra) and P.W.6 (Narayana Sahu) are the witnesses to the inquest held
over the dead body and seizure of Rasagolas. P.W.11 (Dr. Umesh
Chandra Mishra) had reported about the death of Puspalata in the
hospital to the Police Station suspecting it to be a case of poisoning.
P.W.9 (Sadhu Charan Patra) is the then A.S.I. of Police, Daspalla Police
Station who had inquired into the U.D. Case and had lodged F.I.R.
P.W.7 (Sarbeswar Sahoo) is the then O.I.C. of Police, Daspalla Police
Station who had conducted major part of the investigation and P.W.8
(Jambeswar Mohapatra) is the then O.I.C. of Police, Daspalla Police
Station who had only submitted charge-sheet. P.W.10 (Dr. Rajendra
Kumar Sahu) who had conducted post-mortem examination on the dead
body of the deceased.
The defence has not examined any witness in support of
their plea.
05. There is no dispute in this case that the prosecution bases its
case solely on circumstantial evidences. There is no evidence that the
Appellant administered poison to the deceased. The prosecution seeks to
establish poisoning by providing the circumstance that the Appellant
brought Rasagolas and forced the deceased to eat the same. On the first
search by P.W.9, the Investigating Officer nothing incriminating was
seized from that house where the incident took place. However, later on
28.04.1994 at about 2.30 P.M. the said Rasagalos in a broken state were
seized on production by P.W.1. The seizure was made by P.W.9. It was
also submitted that the prosecution has not established that the Appellant
purchased the insecticide that was found in the Rasagolas and the viscera
of the deceased and that he administered the said pesticide to the
deceased.
06. Learned counsel for the Appellant has relied upon the
judgment of the Hon'ble Apex Court passed in the case of Sharad
Birdhi Chand Sarda -vrs.- State of Maharashtra: reported in AIR
1984 SC 1622 in which the Hon'ble Apex Court has given the guidelines
for appreciation of evidence in case of poisoning. The Hon'ble
Apex Court ruled that in order to establish a case of murder by
administering poison, the following facts should be established beyond
reasonable doubts.
(i) There is a clear motive for an accused to administer
poison to the deceased;
(ii) that the deceased died of poison said to have been
administered;
(iii) that the accused had the poison in his possession; and
(iv) that he had an opportunity to administer the poison to
the accused.
The Hon'ble Apex Court further held that in a case based
on circumstantial evidence, if on the evidence, two possibilities are
available, then the benefit of doubt should be given to the Accused.
07. In this case, none of the witnesses had seen the Appellant
purchasing the insecticide. So they have not deposed about the same.
Similarly none of the witnesses stated that they have seen the Appellant
mixing insecticide or pesticide in the Rasagolas. The Rasagolas were not
seized from the spot house in the first search. Rather, after a long lapse
of time it were produced by P.W.1 before P.W.9 who seized the same. In
this case, the Investigating Officer has not directed his investigation
to find out whether the Appellant was ever in possession of the poison
that is stated to be the cause of death of the deceased. Such fact could
have been established by examining the dealers of insecticide and
pesticide in the locality and in nearby places and the same should have
been determined by the Investigating Officer. In this case, no such effort
has been made by the Investigating Officer to determine whether the
Appellant had purchased insecticide or pesticide. So, a very significant
aspect has not been investigated into in this case.
Further, it is apparent that the circumstances proved in this
case do not form a complete chain of events unerringly pointing to the
guilt of the Appellant. The five golden principles of appreciation of
evidence as enunciated by the Hon'ble Supreme Court in the off-quoted
judgment passed in the case of Sharad Birdhi Chand Sarda (supra)
have not been satisfied in this case.
08. Another circumstance which is of immense importance to
establish the prosecution case is the deed of conveyance allegedly
executed in favour of the deceased Puspalata, the wife of the Appellant,
as dowry to the Appellant. Though it is the consistent case of the
prosecution that the deed of conveyance was executed in favour of the
deceased Puspalata, the wife of the Appellant, to satisfy the demand of
the Appellant for dowry, the prosecution has not proved that deed of
conveyance before the learned trial judge. No plausible explanation has
also put forth to justify non production of the deed of conveyance during
the trial.
The deed of conveyance having not been proved in this case
and the evidence regarding dowry torture meted out to the deceased
being omnibus and general in nature, we are of the opinion that the
conviction under Sections 498A of the Penal Code and Section 4 of the
D.P. Act can also not be confirmed in this case.
09. In the result, the appeal is allowed. The conviction and
sentence to undergo imprisonment for life under Section 302 of the
Penal Code, to undergo rigorous imprisonment for three years under
Section 498A of the Penal Code and to undergo rigorous imprisonment
for two years under Section 4 of the D.P. Act recorded by the learned
Additional Sessions Judge, Nayagarh in S.T. Case No.152/26/3/11 of
1997/1995, as per the judgment of conviction and order of sentence
dated 31.01.2002 are hereby set aside. The Appellant is acquitted of the
said charges.
10. Record reveals that the Appellant- Pabitra Sahu has been
granted bail upon appeal. He be set at liberty forthwith by cancelling
the bail bond executed by him.
The T.C.R. be returned back forthwith.
Accordingly, the CRA is disposed of.
......................
(S. K. Mishra)
Judge
Savitri Ratho, J. I agree.
.......................
(Savitri Ratho)
Judge
Orissa High Court, Cuttack,
Dated the 31st March, 2021/B. Jhankar
