Orissa High Court
Sana Mali @ Padmanav Naik vs State Of Odisha on 28 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA NO.364 OF 2016
In The matter of an Appeal under section-374(2) of the Code of
Criminal Procedure, 1973 and from the judgment and order of sentence
dated 17th May, 2016 passed by the learned Additional Sessions Judge,
Bhawanipatna in Criminal Trial No.23 of 2015 (Sessions).
----
Sana Mali @ Padmanav Naik .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
==================================================
For Appellants - Mr. Subodh Kumar Mohanty,
Advocate.
For Respondent - Mr. Sonak Mishra,
Additional Standing Counsel.
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K.PANIGRAHI
DATE OF HEARING :24.08.2023 : DATE OF JUDGMENT: 28.08.2023
D.Dash,J. The Appellant by filing this Appeal has assailed the judgment of
conviction and order of sentence dated 17th May, 2016 passed by the
learned Additional Sessions Judge, Bhawanipatna in Criminal Trial
No.23 of 2015 (Sessions) arising out of C.T. Case No.52 of 2015
corresponding to Bhawanipatna Town P.S. Case No.16 of 2015.
CRLA No.364 of 2016
{{ 2 }}
The Appellant (accused) thereunder has been convicted for
commission of offence under section-302/326 of the Indian Penal
Code, 1860 (for short called as the IPC). Accordingly, the Appellant
(accused) has been sentenced to undergo imprisonment for life and pay
fine of Rs.10,000/- in default to undergo rigorous imprisonment for a
period of six (6) months for offence under section-302 of the IPC.
Further, he is sentenced to undergo rigorous imprisonment for a period
of ten (10) years and to pay a fine of Rs.5,000/- only in default to
undergo rigorous imprisonment for six (6) months for the offence under
section-326 of the IPC.
2. Prosecution Case:-
On 24.01.2015 at about 9 am, one Budu Goud (Informant-
P.W.14) submitted a written report with the Inspector-In-Charge (IIC),
Bhawanipatna Town Police Station, stating therein that his niece Pichi
@ Debanti Goud after the death of her parents was staying with him
and he was taking her care in maintaining her. It is stated that this
Appellant, who was residing in the nearby area was in love with his
niece and he was regularly visiting their house. On 16th January, 2015
around 7 pm after Budu (Informant-P.W.14) returned home; he was
served with food by Pichi @ Debanti and thereafter, she with other
girls of the area left home. After some time, accused having assaulted
CRLA NO. 364 OF 2016
{{ 3 }}
Pichi @ Debanti brought her to the house. The accused was threatening
to kill Pichi @ Debanti by setting fire at her. Thereafter, the accused
pouring Kerosene over the body of Pichi @ Debanti is said to have set
her ablaze. Pichi @ Debanti being set to fire raised hullah saying
"Marigali Go Bua" and come out of her house, when her entire body
was burning. Budu, the Informant (P.W.14) made all attempts to put
out the fire and during that period, the accused left the place. An
Ambulance being called by the neighbours, Pichi @ Debanti was
shifted to the Hospital and there while undergoing treatment she died
on the 23rd January, 2015.
3. Receiving the above written report from the Informant (P.W.14),
the Inspector-In-Charge (IIC) of Bhawanipatna Town P.S., treated the
same as F.I.R. and registering the case, took up investigation.
The Investigating Officer (I.O.-P.W.18) in course of
investigation, examined the Informant (P.W.14) and other witnesses.
He then visited the spot and prepared the spot map, Ext.8. The I.O.
(P.W.18) held inquest over the dead body in presence of witnesses and
the report i.e. Ext.3. The dead body was sent for postmortem
examination, incriminating articles such as the half burnt wearing
apparels of the deceased, bottle containing kerosene oil and match box
with sticks were seized under seizure lists. On that day around 7 pm,
CRLA NO. 364 OF 2016
{{ 4 }}
the accused was arrested. On the next day, the accused was forwarded
in the custody to the Court. In the meantime, when the deceased was
undergoing treatment, the Doctor (P.W.5) had recorded the statement
of the deceased (dying declaration). The said dying declaration along
with the bed head ticket maintained during treatment of the deceased
were also seized. On completion of investigation, the Final Form was
submitted placing this accused with his parents to face the trial for
commission of offence under section-302/326 of the IPC.
4. Learned S.D.J.M., Bhawanipatna, having received the report as
above, took cognizance of the said offences and after observing
formalities, committed the case to the Court of Sessions for trial. That
is how the trial commenced by framing of charge of the said offences
against the accused.
5. In the trial, the prosecution examined in total nineteen (19)
witnesses. Out of whom, as already stated, the Informant who is the
uncle of deceased and who had lodged the written report, Ext.7 is
P.W.14. The Doctor who had treated the deceased and recorded her
statement which is said to be the dying declaration has come to the
witness box as P.W.5. P.W.10 and P.W.16 are the Staff Nurse and
Pharmacist, who had attended the deceased in course of treatment. The
Doctor who had conducted postmortem examination over the dead
CRLA NO. 364 OF 2016
{{ 5 }}
body of the deceased has been examined as P.W.11. The Investigating
Officer has come to the witness box at the end as P.W.18.
6. The prosecution besides leading evidence by examining the
above witnesses has also proved several documents which have been
admitted in evidence and marked Exts.1 to 10. Out of those, the
important are the F.I.R. (Ext.7), spot map, Ext.8, inquest report, Ext. 3,
postmortem report, Ext.10/2. The so called dying declaration of the
deceased recorded by P.W.5 has been admitted in evidence and marked
Ext.2.
7. The accused in support of his defence of denial and false
implication has however not tendered any evidence.
8. The Trial Court on going through the evidence of prosecution
witnesses and embarking upon the exercise of their critical examination
has arrived at a finding that the prosecution has established the charges
against the accused beyond reasonable doubt. Accordingly, the accused
has been sentenced as aforestated.
9. Learned Counsel for the Appellant (accused) submitted that here
in the case, the F.I.R. has been lodged only on 24.01.2015 as against
the incident which had taken place on 16.01.2015 and there remains no
such explanation for the delay. He further submitted that the Informant
examined as P.W.14 having remained silent for all these period and
CRLA NO. 364 OF 2016
{{ 6 }}
come to lodge the F.I.R. on the day following the death of the
deceased; his evidence is to be looked with suspicion to the effect that
implication of this accused is the outcome of a well thought out plan.
He further submitted that the evidence of P.W.14 is in great variance
with what he had stated in the F.I.R., Ext.6. It was submitted that when
the role played by the accused as stated by P.W.14 during trial, is
completely different and so also all other surrounding circumstances as
narrated above, which he had pointed out in the F.I.R.; his evidence
cannot be relied upon. He further submitted that the so called dying
declaration recorded by P.W.5 has not been proved in accordance with
law in as much as P.W.5 is not stating as to what he asked to the
deceased and what the deceased told. According to him, simply proving
the document which P.W.5 states to have prepared won't suffice the
purpose of proving the contents in coming to a conclusion that the
deceased has stated those facts before P.W.5. He further submitted that
the witness to the dying declaration P.W.10 having not stated that the
deceased had implicated this accused to be the person to have set fire at
her by pouring kerosene, the Trial Court ought not to have relied upon
the so called dying declaration, Ext.2. He also submitted that P.W.1
being not a truthful witness as would be seen on scrutiny of his
evidence in the backdrop of the circumstances prior to an after the
CRLA NO. 364 OF 2016
{{ 7 }}
incident of burning, his evidence is not to be relied upon. He, therefore,
submitted that the judgment of conviction and order of sentence are
liable to be set aside that the finding returned by the Trial Court
holding accused to perpetrator of the crime cannot be sustained.
9. Learned Additional Standing Counsel submitted all in favour of
the finding of guilt against the accused as has been returned by the
Trial Court. Inviting the attention of this Court to the evidence of the
Informant (P.W.14), he a that the same being wholly reliable even
without taking the aid of said dying declaration, Ext.2; the conviction
recorded by the Trial Court is not liable to be interfered with. He also
submitted that when the prosecution has proved the dying declaration
(Ext.2) through P.W.5 the Doctor who had no axe to grind against the
accused and therein the accused is said to be perpetrator of the crime,
merely because, the P.W.5 has not stated all detail and the other
witnesses to the dying declaration, P.W. 10 has remained silent in not
naming the accused, the dying declaration; Ext.2 is not liable to be
pushed out of the arena of the consideration.
10. Keeping in view the submissions made; we have carefully read
the judgment passed by the Trial Court and we have also extensively
travelled through the evidence adduced by the prosecution witnesses
CRLA NO. 364 OF 2016
{{ 8 }}
i.e. P.Ws. 1 to 19 and marked Exts.1 to 10 from the side of the
prosecution have been perused.
11. Admittedly, in the present case, the incident having taking place
on 16.01.2015, the Informant (P.W.14) has lodged the F.I.R. on
24.01.2015. after death of the deceased occurred on 23.01.2015 while
undergoing treatment in the Hospital, when the fact remains that the
Police Station and the Hospital are in the same town and even till the
lodging of the F.I.R., no information has come from the Hospital to the
Police Station that it was a medico legal case, more importantly even
after this dying declaration (Ext.2) come into being.
The Informant (P.W.14) simply states in the F.I.R. that as he was
busy in treatment of the deceased, he could not lodge the F.I.R. That
explanation is however not forthcoming in his evidence in the Trial. It
is stated in the F.I.R. lodged by P.W.14 that when he was in the house,
the deceased was brought by the accused after being assaulted and
thereafter, her set fire at her by sprinkling kerosene on her body. The
evidence during trial is that the accused brought the deceased to the
house by dragging her and there set fire at her by pouring kerosene.
Though it is stated in the F.I.R. that there was some amount of push
and pull between the accused and the deceased and thereafter the
accused set the deceased at fire, that is given a good bye being not
CRLA NO. 364 OF 2016
{{ 9 }}
stated by P.W.14 during Trial. None of the villagers were told about the
occurrence by P.W.14; even though it is said that villagers had come
and the deceased was shifted to the Hospital thereafter.
P.W.14 during cross-examination has started in clear terms to
have not seen the accused, pouring kerosene on the deceased as he was
setting outside and he saw the accused only when the deceased came
out of the house with the burning condition. So how the deceased got
ignited by fire was not known to this P.W.14 who also does not say to
have then asked anything to the accused or about his conduct thereafter.
P.W.18 (I.O.) is also silent on the score that he had received in
information with regard to said burning incident in the house of P.W.14
prior to the receipt of the F.I.R. In the above state of affairs, we feel
that it hazardous to rely upon the evidence of P.W.14 to fasten the guilt
upon the accused as the perpetrator of the crime to have burnt the
deceased to death.
12. Now coming to dying declaration, Ext.2; it is seen to have been
recorded by P.W.5 that the patient being 80% burn injuries were
brought to the hospital and had been admitted by her at the first
instance and then she was identified by one Shakuntala Pal (P.W.9).
This P.W.9 states that when she found the deceased to have sustained
burn injuries, she was able to talk and thereafter she was taken to the
CRLA NO. 364 OF 2016
{{ 10 }}
Hospital. This witness however does not state as to whether she had
then asked the deceased as to how she sustained burn injuries on her
person and who was responsible for the same. This P.W.9 states that
two to three days after the victim was able to talk, she told that the
accused had burnt her which she refers to the recorded dying
declaration as it appears in the very next sentences. She states that
Doctor has recorded the dying declaration in her presence that dying
declaration being dated 16.01.2015, this witness P.W.9 states that it
was two to three days after the admission of the deceased in the
Hospital.
13. P.W.5, the Doctor is not stating as to what she asked the
deceased and what the deceased replied. She has simply proved the
writing that she had made in terming it to be the dying declaration as
Ext.2.
P.W.3, the other witness to the dying declaration has stated that
the deceased after three days of occurrence regained sense and was able
to talk, and then she had stated before him as well as the Doctor and
uncle that the accused had quarreled with her and set her ablaze by
pouring kerosene. The uncle (P.W.14) however is totally silent about
that. The Doctor (P.W.5) having recorded the dying declaration has
also not given any intimation to any quarter including the Police. The
CRLA NO. 364 OF 2016
{{ 11 }}
bed head ticket does not find mention of recording of such dying
declaration. The Doctor P.W.5 does not state about the presence of
P.W.3. When this P.W.5 states that one Sasmita Sasmal Staff Nurse
was present, the Staff Nurse has been examined during the trial was not
Sasmita Sasmal but Sabita Sasmal. This P.W. 5 although states to have
informed the Police regarding the case. The I.O. (P.W.18) does not
state so to have received any intimation from the Hospital. The I.O.
(P.W.18) having held inquest over the dead body on 24.01.2015 has
seized the bed head ticket on 02.02.2015 and it is not forthcoming in
evidence as to where these documents were there during this period and
from whose custody, he seized those documents. In view of aforesaid
discussion, being not specified about the truthfulness of dying
declaration and that the said declaration was made by the deceased
while she was in a fit condition to make the statement; we feel it unsafe
to rely upon the evidence let in by the prosecution that the deceased in
course of her treatment had stated before P.W.5 or others that it is the
accused, who had set fire at her.
In that view of the matter, the finding of the Trial Court holding
accused guilty of commission of the offence under section-326/302 of
the IPC cannot be sustained. Therefore, we hold that the judgment of
CRLA NO. 364 OF 2016
{{ 12 }}
conviction and the order of sentence impugned in this Appeal are liable
to be set aside.
14. In the wake of aforesaid, the Appeal stands allowed. The
judgment of conviction and order of sentence dated 17th May, 2016
passed by the learned Additional Sessions Judge, Bhawanipatna in
Criminal Trial No.23 of 2015 (Sessions) arising out of C.T. Case No.52
of 2015 are hereby set aside.
Since the Appellant (accused) namely, Sana Mali @ Padmanav
Naik is in custody, he be set at liberty forthwith, if his detention in
custody is not so required in connection with any other case.
(D. Dash),
Judge.
Dr.S.K.Panigrahi, J. I Agree.
(Dr.S.K.Panigrahi),
Judge.
Narayan
Signature Not Verified
Digitally Signed
Signed by: NARAYAN HO
Designation: Peresonal Assistant
Reason: Authentication
Location: OHC
Date: 29-Aug-2023 17:33:52
CRLA NO. 364 OF 2016
