Bharat Santa vs State Of Orissa
2022 Latest Caselaw 4807 Ori

     THE HIGH COURT OF ORISSA AT CUTTACK

                             CRLA No.280 of 2014.

In the matter of an appeal under Section 374 (2) of the Code of Criminal
Procedure, 1973.
                                -----------

Bharat Santa                  .......                                 Appellant

                                  -Versus-

State of Orissa                     .......                           Respondent

___________________________________________________________
For Appellant   : Mr. Ashok Sahoo, Advocate.

For Respondent  : Mr. S.S. Kanungo, Addl. Government Advocate
___________________________________________________________

      CORAM:

      THE HONOURABLE SHRI JUSTICE S. TALAPATRA
      THE HONOURABLE SHRI JUSTICE M.S. SAHOO

                                 JUDGMENT

19th September, 2022

S.Talapatra, J. The appellant was charged under Sections

458,342,436,307 and 302 of the IPC and also under Section 7 of the

Essential Commodities Act. The appellant denied those charges and

hence, he was put to a full-fledged trial. On completion of the trial, the

Sessions Judge, Nayagarh, by the Judgment dated 19.04.2014 delivered

in S.T. Case No.50 of 2011 convicted the appellant under Section

458/342/436/307/302 of the IPC and also under Section 7 of the

Essential Commodities Act.

2. On hearing the appellant, on the question of sentence, the

appellant was sentenced to suffer imprisonment for life and to pay a fine

of Rs.5,000/- (rupees five thousand) and in default in payment of fine to

undergo R.I. for a further period of one year on each deafult under

Sections 302 and 307 of the IPC & to undergo R.I. for 10 years each

count for commission of the offences under Sections 436 and 458 of the

IPC & to pay a fine of Rs.5,000/- (rupees fivethousand) and in default to

undergo R.I. for one year more and to undergo R.I. for one year for

commission of the offence under Section 342 of the IPC and further

sentenced to undergo imprisonment for one year and to pay a fine of

Rs.2,000/- (rupees two thousand) and in default to undergo further

period of R.I. of six months for commission of the offence under

Section 7 of the Essential Commodities Act. It has been declared that

the substantive sentences shall run concurrently. The fine amount, if

paid, be given to victim Sarat Santa (the victim), in terms of provision

under Section 357 of the Cr.P.C.

3. The said Judgment and order of conviction and sentence

are challenged in this appeal by the convict from the jail.

4. Briefly stated, the prosecution case is that on the

intervening night of 10/11.01.2011 the appellant set fire in the house of

his brother namely, Sarat Chandra Santa (P.W.10) after locking the

room [of his brother, P.W.10] from outside and using a Gas Cylinder for

setting the fire. Somehow, P.W.10 by breaking the door could save his

life but his wife and his 10 months' old baby (son) were burnt alive in

the fire. Within a short while, Anadi Charan Mohanty (P.W.3) lodged

the information (Ext.1) in Itamati Police Station at about 03.45 am on

11.01.2011, whereas the occurrence took place as per the information at

12.10 am on 11.01.2011. Based on the said information, Itamati P.S.

Case No. 1 (1) of 2011 was registered under Sections 342/302/307/436

of the IPC and taken up for investigation. On completion of the

investigation, the police report under Section 173(2) of the IPC was

filed and in due course, the case was committed to the Court of the

Sessions Judge who had framed the charge as stated before. To

substantiate the charge, prosecution introduced as many as 16 witnesses

(P.Ws.1 to 16) including the eye witnesses namely Uttam Santa

(P.W.1), Sarat Chandra Santa (P.W.10) and the informant namely,

Anadi Charan Mohanty (P.W.3). The prosecution had introduced as

many as 17 documentary evidence (Exts.1 to 17) including the inquest

reports (Ext.2 and Ext.3), injury report (Ext.6), post mortem reports

(Exts.8 and 9) and the chemical examination report (Ext.17). In the trial,

a few articles were admitted in the evidence by the prosecution viz.

photographs of the scene of crime (M.O.I to M.O.IV), Gas Cylinder

(M.O.V), plastic pipe (M.O.VI), half burnt wooden plank (M.O.VII),

half burnt pad lock (M.O.VIII), axe (M.O.IX) and half burnt sweater

and cap (M.O.X). The defence has no evidence introduced. After the

prosecution evidence was recorded, the appellant was examined under

Section 313 of the Cr.P.C to have his response to the incriminating

materials those surfaced in the trial. The appellant denied his

involvement in the crime and has stated that because of the deep enmity

he has been framed in the case.

5. Having appreciated the evidence, the Sessions Judge has

returned the findings, inter alia, that from the evidence of eye witnesses

(P.Ws.1 and 2), chance witness (P.W.9), injured witness (P.W.10) and

(P.W.11), it is crystal clear that the appellant had committed the murder

of Susama Santa (wife of P.W.10) and her baby, Munu Santa by

releasing cooking gas into the room in which they were sleeping and

setting fire in that room. The appellant confined Sarat Santa (P.W.10),

his wife and his baby [son] Munu Santa by locking the door from

outside. In the process, Susama Santa and Munu Santa died and being

burnt alive. Sarat Santa got burn injuries.

6. The motive of the appellant has been proved by P.W.11 as

P.W.11 was the witness of abuses. The appellant also abused Sarat by

saying "To bansa budeidebi" [I would destroy your family]". P.W.11

is not related either to the family of P.W.10 or to the appellant. The

Sessions Judge has discarded the plea of identification of the Gas

Cylinder. It has been further observed by the Sessions Judge that there

are no incongruities in the fact disclosed in the information lodged in

the police station and the fact as proved by the prosecution, in order to

drive the charge home. The oral evidence got support from the material

objects as introduced in the trial and from the report of the chemical

examiner. Even the defence's plea that there was no proof of presence

of liquid petroleum gas in the rubber pipe and hence, inference to have

been drawn against the prosecution has been discarded by the Sessions

Judge, by observing that liquid petroleum gas being volatile

(evaporative) in nature, had evaporated when the actual chemical

examination have taken place.

7. Mr. A. Sahoo, learned counsel appearing for the appellant

has strenuously submitted before this Court that there is no legal

evidence to support the charge in as much as, as regards the

participation of the appellant in the crime, there is no direct evidence.

Mother of the appellant (P.W.1) did not state that she had seen the

appellant perpetrating the offence of arson or attempting to bolt the door

of the room where P.W.10 and his family were sleeping at that night.

Mr. Sahoo, learned counsel has agitated that the evidence of P.W.1

clearly reveals that there was long standing enmity between the

appellant and his parents and brother (P.W.10). The parents were living

with P.W.10 for long time. The evidence of P.W.1, is argued by Mr. A.

Sahoo, learned counsel appearing for the appellant is motivated. It has

been designed to rope the appellant in commission of the crime.

Similarly, the evidence of P.W.11 has been concocted in order to

complete the chain by way of placing a piece of evidence on threat by

the appellant in the afternoon of the day/day before of the occurrence.

While returning the finding of conviction, according to Mr. A. Sahoo,

learned counsel appearing for the appellant, the Sessions Judge has

misread the testimony of P.W.14 and thus, he came to an inference

which must fail in the test as, such inference is not based on the reliable

evidence but on assumption.

8. Mr. A. Sahoo, learned counsel has urged this Court to

discount the evidence of P.W.10, Sarat because of the long standing

enmity with the appellant. According to Mr. Sahoo, this is a case where

this court may interfere the judgment of conviction and the

consequential order of sentence.

9. In support of his contention Mr. A. Sahoo learned counsel

appearing for the appellant has placed his reliance on Dr. Sunil Kumar

Sambhudayal Gupta -Vs- State of Maharastra, reported in 2011

Cri.LJ 705(SC) in order to place the law how to appreciate the

contradiction. Mr. A. Sahoo, learned counsel has placed his reliance on

Ganga Bhavani -Vs- Rayapati Venkata Reddy reported in 2013 Cri.

LJ 4618 (SC) on appreciation of the eye witness account. When the

benefits of doubt would favour the accused on that aspect Mr. A. Sahoo

has relied on a decision in Arshad Hussain -Vs- State of Rajasthan

reported in 2013 (II) OLR (SC) 1024. Mr. Sahoo, learned counsel has

also referred a decision of this court in Jayaram Sahoo Vs State of

Odisha, reported in 2022(I) OLR 982 on importance of the evidence of

motive in a case based on circumstantial evidence.

10. Mr. S.S. Kanungo, learned Addl. Government Advocate

appearing for the State has, in order to repel the contention of Mr. A.

Sahoo, learned counsel appearing for the appellant has submitted that

the prosecution case has been proved to the hilt. Mr. S.S. Kanungo, has

also contended that the evidence has been clinching to prove the motive

and the preparation of the offence as proved by the independent

witnesses. There were two witnesses (P.Ws.1 and 2) and the injured

witness (P.W.10) who had proved the occurrence of grisly death of wife

and baby of P.W.10. If read all the evidence cumulatively, there will be

no amount of doubt in holding that the appellant motivatedly set fire in

the room where P.W.10 and his family were sleeping, in order to

retaliate. Mr. S.S.Kanungo, learned Addl. Government Advocate has

quite robustly submitted that animosity has its two sides. It not only

prompts someone to concoct by deviating from the real fact but at the

same time it gives the motive for perpetrating the crime for retaliation.

According to Mr. S.S. Kanungo, there is no sustainable ground to

interfere in any part of the finding as returned by the Sessions Judge.

11. In order to appreciate the rival contentions as advanced by

the counsel for the parties, it appears apposite to take a meaningful

survey of the evidence as recorded in the trial.

12. Uttam Santa (P.W.1) has testified in the trial and stated that

the informant (P.W.3) is her son-in-law. She has stated that she had 4

sons. One son died pre-maturely. The appellant, P.W.10 and one Balia

are her 3 surviving sons. Her daughter is married to P.W.3. Her son

Bharat (the appellant) used to live separately in a house at one end of

their village. Her son Balia is lame and stays with Rekha. The appellant

used to quarrel with all of them including P.W.10. One year and two

months before the day of recording the deposition, in the midnight, the

occurrence took place when Sarat (P.W.10) and his wife and their son

were sleeping in their room. She and her granddaughter with her 'Jaa'

(wife of brother-in-law) were sleeping in their outer verandah. She has

stated thereafter that she saw in the electric light as follows:

"Accused came with a gas cylinder and knocked

at the door. I asked him why he came in the late

night. He gave a kick over my abdomen. I raised

halla. He locked the door of the room where Sarat

was sleeping. He alighted a match stick and burnt

the Gas Cylinder. Due to such fire, the entire

housed gutted. Sarat could get out of the room,

but in the fire his wife and son burnt and died.

Sarat also received severe burn injuries all over

his body. After setting fire, the accused fled away.

All four to five houses gutted with fire. Hearing

my hulla, many villagers rushed to our house."

13. P.W.1 has stated in the trial that the fire-brigade vehicle

came and extinguished the fire and she was later, on examined by the

police. She was cross-examined by the defence. In the cross-

examination carried out by the defence, she has given the details of the

rooms, occupied by different members of the family. But for the

relevant part which was about the occurrence as highlighted by Mr. A.

Sahoo, learned counsel, it appears that she (P.W.1) was not sleeping

with her granddaughter near the room of Sarat. She has admitted that

she, her husband and Sarat (P.W.10) were not pulling well with the

appellant since last 5 years, as the entire cultivable land belonging to the

family was being cultivated by P.W.10. The appellant was living away

from them. According to her, the electric connection is not in the name

of her husband or P.W.10. The following part of cross examination was

pressed in service by Mr. A. Sahoo, learned counsel for the appellant:

"I saw the accused while coming with a Gas Cylinder. First

I could not identify him in the darkness. The door of the

room of Sarat was open when Bharat (the appellant) came

there. When he closed the door I raised halla. I cannot say

who came to the spot. The Gas Cylinder was kept on the

verandah through which all are passing. It is not a fact that

accused never came with a gas cylinder and never set fire on

the house of Sarat."

14. Those suggestions, contrary to her statement, made in the

cross examination were denied by her. Kuntala Santa (P.W.2) stated that

the appellant is her nephew and P.W.1 is her eldest Jaa, P.W.10 is also

her nephew. The occurrence took place in the midnight of a day one

year and two months ago, from the day of deposition. She was sleeping

in the verandah along with P.W.1 and her granddaughter. In another

room P.W.1's son and daughter-in-law with their son were sleeping.

While sleeping in the verandah, hearing hulla raised by P.W.1 she woke

up and found the appellant with a gas cylinder. She requested him not to

pick up quarrel with his brothers but the accused locked the room of

P.W.10 from outside and alighted the match stick to ignite fire by the

gas cylinder. The entire house was burnt. They raised hullah. Sarat

(P.W.10) to come out of the room by breaking open the door but his

wife and son could not and they were burnt alive to death. In her cross

examination, she stood by all her statements, but added that there was a

dispute between the appellant and his brother Sarat. She has

corroborated P.W.1 that after hearing hullah, raised by P.W.1, the

villager rushed in. She denied the suggestion, contrary to what she had

stated in her examination-in-chief incriminating the appellant.

15. As stated, P.W.3 is not the eye witness. But he had

informed the police what he had learnt immediately after the occurrence

from P.Ws.1 and 2 that accused the appellant set fire by means of a gas

cylinder. He had informed the police by filing a written report, scribed

by one Banamali Prusty, who was not examined in the trial. Nothing

could be extracted from him in the cross examination to the advantage

of the defence, but P.W.3 has denied categorically that he had lodged

the report falsely. P.W.4 Ashok Kumar Mohapatra is the seizure witness

of the Gas Cylinder and few other articles seized by the seizure list

(Ext.4). He has identified his signature on the seizure list. He was cross-

examined but nothing surfaced in that process to dent the incidence of

seizure. Jambeswar Mohapatra (P.W.5) is another seizure witness who

only recognized his signature on the inquest report, he has denied that

he did know about the inquest of the dead body. Ashok Kumar Parida

(P.W.6) was witness to the inquest of Munu Santa and Susama Santa

and he identified his signature over the inquest report. But, he had flatly

denied that he did know anything about the occurrence. Consequently,

he was cross-examined by the prosecution on being declared hostile. In

the cross examination, he had stated that he did not see Sarat (P.W.10)

in that house.

16. Baikunthanath Mahapatra (P.W.7) is another seizure

witness. In his presence, one half burnt Gas Cylinder (Bharat), half

burnt rubber pipe, one lock, one axe along with half burnt door were

seized. He proved his signature on the seizure list (Ext.4). Lokanath

Santa (P.W.8) was witness to the inquest and he identified his signature

in the trial as Ext.2/4. He has stated in the trial that in the night of

occurrence when his wife made him awake and told that the house of

Bharat was burning. He woke up and found the house of Bharat was

burning. He went to the back side of her house out of fear. Sarat

(P.W.10) and Bharat (the appellant) are his nephews. Rama Chandra

Maharana (P.W.9) is a chance witness. On 10.11.2012 at night, he had

taken her wife to the hospital. When he went to the house of an auto

rickshaw owner for taking her wife to the hospital, by the light of his

torch, he saw Bharat (the appellant) coming with a gas cylinder and

Bharat was moving towards the house where Sarat was staying. After a

few minutes, he heard screaming sounds like 'Badikhia Podidelu'

(burning something) then rushed towards the house of Sarat (P.W.10)

and found the house is burning. He heard screaming of a woman and a

child from inside the house and knocking sound. The house was

completely gutted in fire. After few minutes, Sarat came out of that

house with burn injuries all over his body. He was immediately taken to

the hospital. Thereafter, he left that place. In the following morning, he

could know that wife of Sarat was burnt to death. He stood by his

statements made in the examination-in-chief during the cross

examination. But in the cross examination, he had added that he heard

the screaming of mother of Sarat (P.W.1). P.W.10, one of the pivotal

witness who suffered the injuries in the said fire incident. P.W.10, Sarat

Chandra Santa had testified in the trial and stated that the appellant used

to threaten him by saying (to bansa budei debi). On 10.01.2011 at night,

when he was sleeping with his wife and with his son inside the room,

his mother and his daughter were sleeping outside the room. He heard

hallah, her mother (P.W.1) saying 'ghare Bharat nian lageidela'. Bharat

had put fire in the house. He saw his room was burning. He tried to

open the door which was bolted from outside. He could break open the

door by means of an axe and went out of the room. His mother told him

that Bharat (the appellant) left the place after burning the house. He

found a gas cylinder on the verandah of the room which was burning, he

received burn injuries all over the face, abdomen and entire body. His

wife and son could not come out of the room and they were burnt. He

was taken to the hospital at Bhubaneswar and he was treated there for

18 days.

17. In the cross-examination, he has given the description of

their house and various locations and denied the suggestions contrary to

what he has stated in the examination-in-chief. But he has admitted the

suggestion that he did not see Bharat (the appellant) to bring the Gas

Cylinder, Dambaru Samal (P.W.11) is another witness testified in the

trial that he heard appellant at about 05.00 P.M, two years ago from the

day of deposition saying abusively to P.W.10 that "to bansa budei

debi". He protested but the appellant repeated the same statement to his

brother (P.W.10). In the cross-examination, he could not tell the day and

time of the occurrence when specifically asked. But he has confirmed in

the cross-examination that the appellant was not living with their joint

family. He denied the suggestion that he did not hear the appellant

saying 'to bansa budei debi'. One Havildar P.W.12, attached to Itamati

police station, namely Birendra Mohapatra carried out the inquest over

the burn dead bodies of the wife and the son of P.W.10 in presence of

the Executive Magistrate. After the inquest, the dead bodies were sent

by him to the hospital for post mortem examination. In the aftermath of

the post mortem examination, he took broken bangles, burnt sweater

and cap by making samples and produced the same before the IIC along

with the Command Certificate. IIC seized those articles in his presence

by preparing the seizure list (Ext.5). He identified the said seizure list

and the Command Certificate (Ext.6). There was no meaningful cross

examination. Dr. Manoranjan Das (P.W.13) examined P.W.10. On

examination, P.W.13 found that P.W.10 suffered 45 per cent burn

injuries over his body. P.W.10 was admitted in the Burn Ward and

treated there for 11 days. He was discharged on 23.01.2011. P.W.13 has

given the locations where P.W.10 received the burn injuries. Those are:

forehead, upper chest, both upper limbs and back. P.W.13 has clearly

stated those injuries were due to fire and simple in nature. He admitted

the injury report (Ext.7) in the evidence. There had been no meaningful

cross-examination.

18. Dr. Narmada Sahoo (P.W.14) carried out the autopsy over

the dead body of Muna Santa, son of P.W.10 and Susama Santa (wife of

P.W.10). According to P.W.14, Muna Santa received 100 per cent burn

injuries, internal organ came out through abdomen. According to

P.W.14, the cause of death is asphyxia. For the same reason, death

caused to Susama Santa. Her body was deformed. Hands and knees

flexed. Cranium and spine were intact. Both the chambers of the heart

were filled with black color blood. Lungs contained black particles. In

short, 100 per cent burn destroyed all the vital organs. The post-mortem

report of Susama Santa, Ext.9, has been admitted in the evidence by

P.W.14. In the cross examination, P.W.14 having denied all suggestions

contrary to his observation stated that there will be no pugilistic signs if

a person after death is set to fire. She has further observed that after

conducting the post mortem on the dead body, she came to the opinion

that both of them were burnt while they were alive. On recall, she had

observed that the injuries found on two dead bodies are possible, if

cooking gas was passed into a closed room through a slit and if a match

stick is flashed while a person was sleeping in that room. There was no

meaningful cross examination.

19. Dr. Raghunath Naik (P.W.15) examined P.W.10 on

02.04.2011 and he had given the details of injury as follows:

(i) Whole of the back.

(ii) Back of right arm and forearm.

(iii) Whole of left arm and forearm.

(iv) Whole of forehead.

(v) Both the lips.

He identified the injury report (Ext.10) for admission in the evidence.

Nothing material could be extracted out in the cross examination from

P.W.15.

20. IIC (P.W.16) has given the details how he had conducted

the investigation after receipt of the written report from P.W.3. He had

closed the gutted house for purpose of investigation. He has admitted

the fact of seizing the materials like Gas Cylinder, burnt rubber pipe,

one axe, one burnt lock and one piece of burnt door. According to him

the inquest was conducted on the following day in presence of one

Executive Magistrate and thereafter those dead bodies were sent for

post-mortem examination. In the course of investigation, he had

examined the witnesses as stated before and seized the material objects

to bring out the truth. He had also examined one Rabindra Kumar

Sahoo, owner of the Gas chulla repairing shop of Itamati Bazar and

asserted from him that he had sold one Gas Cylinder two months ago to

the appellant without any license. As a result, the proceeding under the

Essential Commodities Act was also initiated against the appellant.

21. P.W.16 had collected the medical injury reports, post-mortem

examination report, Forensic Chemical Examination reports from the

State Forensic Science Laboratory Rasulgarh, Bhubaneswar. The said

Chemical Examination report was signed by the Director of SFSL,

under Section 293 of the Cr.P.C. Those are admitted in the evidence and

there had been no prayer for cross-examination of the expert.

Thereafter, on completion of the investigation, he filed the charge-sheet

against the appellant. An elaborate cross-examination was carried out,

but P.W.16 did not admit any of the suggestion, questioning the legality

and fairness of the investigation. In the cross-examination, he has

admitted that he had no knowledge that every cylinder carries one

identification number. The other suggestions, contrary to the

examination-in-chief stood denied by P.W.16. But on his examination,

P.W.16 identified those material objects as seized by P.W.16, during

investigation. He has also admitted the chemical examination report.

But, there is no specific opinion whether the part of the door was burnt

by gas or not.

22. According to Mr. A. Sahoo, learned counsel, contradictions in the

statement of P.W.1 has been casually brushed aside by the Sessions

Judge. Mr.A. Sahoo, learned counsel has underlined that at the first

instance P.W.1 has stated that she could not identify the appellant

because of the darkness. But later on, she had suddenly stated that she

saw the appellant with the gas cylinder and saw him setting the fire in

the room where P.W.10 and his family were sleeping. This is a sheer

contradiction surfaced for deliberate improvement. According to Mr. A.

Sahoo, learned counsel, these vital contradictions have demolished the

prosecution case but that aspect was not given due consideration.

Reliance has been placed on the Apex Court decision in Dr. Sunil

Kumar Sambhudayal Gupta (supra) has observed, having referred to

Bihari Nath Goswami vs Shiv Kumar Singh: (2004) 9SCC 186, that

exaggeration do not render the evidence fragile. But it can be one of the

factors to test credibility of the prosecution version, when the entire

evidence is put in a crucible for being tested on the touchstone of

credibility. While deciding such a case, this Court has to apply the

aforesaid test. Mere marginal variation in the statement cannot be

dubbed as improvements as the same may be elaboration of the

statement made by the witness earlier. The omission which amounts to

contradiction in material particulars and affects the core of the

prosecution case, rendered the testimony of the witness not

creditworthy. What is really surprising is that no attempt was made to

bring out such contradiction from omission by observing the procedure

as required under Section 145 of the Evidence Act. At no point of time,

the previous statement (as recorded under Section 161 of the Cr.P.C)

was referred to P.W.1. Therefore, this Court is unable to accept the

defence plea and there was omission amounting contradiction or even

exaggeration to such an extent which strikes at the credibility of the

statement of the witness.

23. This Court cannot have any different opinion as regards the

law as expounded. In Ganga Bhabani (supra), the Apex Court has

observed that where the eye-witness account is found credible and

trustworthy, a medical opinion pointing to alternative possibilities

cannot be accepted as conclusive. The eye-witnesses account requires a

independence assessment and evaluation for its credibility. Thus, in

cases where there is contradiction between the medical evidence and

the ocular evidence it has been crystalliszed tp the effect that though

the ocular testimony of a witness has greater evidentiary value vis-à-vis

the medical evidence and when the medical evidence makes the ocular

testimony improbable, that becomes a relevant factor in the process

initial evaluation of evidence. However, where the medical evidence is

so clinching that it completely rules out even the very basis of the ocular

evidence being true, the ocular evidence may be disbelieved.

24. In the present case, no such alternative possibility emerges

categorical testimony is supported by the medical evidence and the

chemical examinations report. Therefore, this principle of law cannot be

applied in the present context to disbelieve the ocular evidence. In this

regard, it may also be noted that the evidence of the related witnesses is

required to be carefully scrutinised with an additional amount of caution

before any conclusion is drawn out of their testimony, but their evidence

cannot be disbelieved merely on the ground that the witnesses are

related to each other to the deceased. If the evidence reveals the ring of

truth, it be accepted as cogent, credible and trustworthy. It can, and

certainly should be relied upon. Moreover, the natural witnesses may

not be labeled as the interested witnesses. Interested witnesses are those

who want to derive some benefit out of the litigation or to have outcome

of their preference.

25. In Arshad Hussain (supra), the Apex Court had occasion to

observe that if the infirmities surfaced in the evidence that make the

occurrence itself doubtful, the accused cannot be convicted under the

charge of serious offence based on such evidence. The prosecution has

to establish circumstances in such a manner that would exclude or

demolish any hypothesis of innocence fully.

26. The decision of this Court in Jayaram Sahoo (supra) has

been relied as regards the motive in a case based on circumstantial

evidence. It has been held in Jayaram Sahoo (supra) that in a case based

on circumstantial evidence motive is a vital component and an

important element in the chain of circumstances. It forms an important

link to complete the chain of circumstances and fatal for the prosecution

(Shivaji Chinatappa v. State of Maharashtra, AIR 2021 SC 1249).

In this case, the prosecution has successfully proved the motive by the

evidence of P.W.1, P.W.10 and P.W.11. There had been long standing

dispute between the appellant and P.W.10 in respect of use of the

cultivable land, since P.W.10 had been cultivated in the land alone. The

appellant was nurturing grudge and on few occasions, he had given vent

to that grudge. On the very day of occurrence, he had given threat to

P.W.10.

27. On the cumulative assessment of the evidence, the

evidence of P.Ws.1 and 2 cannot be discarded at all, in as much as in the

aftermath of the occurrence, persons who appeared from the close

vicinity has confirmed her action of raising halla even P.W.10 has

confirmed that. So far as the fire incident is concerned, from the place

of occurrence the Cylinder that was recovered was filled up with

Liquefied Petroleum (the cooking gas) and that was seen to be brought

in the place of occurrence by P.W.1. She has very categorically stated

that for perpetrating that crime, the appellant entered in the verandha,

and opened the gas cylinder and alighted the match stick. Her testimony

in this regard has established the identity of the offender.

28. The defence tried to create a cloud by taking out one

statement without context that P.W.1 has stated that she could not

identify the appellant in the darkness, but the word "first darkness" has

been omitted at the time of analysis. The statement that P.W.1 has made

is that first she could not identify the appellant for darkness later on she

had described unwaveringly how the appellant had set the house on fire

by using the gas cylinder. Moreover, the gas cylinder and the burnt pipe

by which the gas was released were seized and the seizure has been

proved by the prosecution to the hilt.

29. That apart, the one witness (the owner of LPG store) has

also stated that two months ago the appellant bought the gas cylinder,

without any license. P.W.9, a chance witness, had seen in the eve of the

occurrence, the appellant was carrying the gas cylinder towards the

house of P.W.10. Thus, preparation, motive and execution of the crime

had been well established by the prosecution without any amount of

doubt.

30. In the occurrence, two human lives were burnt alive to

death. It is gruesome, brutal and extremely cruel. As such, according to

this Court, even while awarding the sentence, all the elements as

required to be considered have been considered. The sentence has been

moderated in the perspective fact of outstanding enmity. As such, no

intervention is called for in the Judgment of conviction and in the order

of sentence. As consequence, those are affirmed.

31. In the result, the appeal being devoid of merit is dismissed.

32. Send down LCRs forthwith.

(S. Talapatra) Judge

(M.S.Sahoo) Judge

Orissa High Court, Cuttack.

The 19 th September, 2022/ R.R. Nayak, Jr. Steno.