Orissa High Court

Thakura Mohanta vs State Of Orissa on 4 December, 2023

Author: G. Satapathy

Bench: D. Dash, G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                      CRLA No.377 of 2014

  (An appeal U/S. 374(2) of the Code of Criminal
  Procedure, 1973 against the judgment passed by Shri
  Shyam Sundar Dash, Addl. Sessions Judge, Keonjhar in
  S.T. No.27/67/176 of 2013-2012 corresponding to G.R.
  Case No. 617 of 2012, arising out of Patna PS Case No.
  57 of 2012 of the Court of SDJM, Keonjhar)

  Thakura Mohanta                 ...         Appellant
                             -versus-
  State of Orissa                  ...        Respondent

 For Appellant              :    Mr.S.K. Baral,Advocate
 For Respondent             :    Mr.P.K. Mohanty, ASC

      CORAM:
          HON'BLE MR. JUSTICE D. DASH
         HON'BLE MR. JUSTICE G. SATAPATHY

                  DATE OF HEARING :09.10.2023
                  DATE OF JUDGMENT:04.12.2023


G. Satapathy, J.

1. The sole Appellant assails his conviction and

sentence passed on 28.12.2013 by the learned Additional

Sessions Judge, Keonjhar in S.T. Case No. 27/16/176 of

2013-2012 convicting him for offence U/Ss. 302/436 of

IPC and sentencing him to undergo rigorous

imprisonment for life and to pay a fine of Rs. 50,000/- in

default whereof, to undergo further rigorous

imprisonment for one year on each count with further

direction for payment of Rs. 80,000/- as compensation to

Nilambara Mahanta in case of realization of fine from the

convict.

2. Briefly outlined, the prosecution case is that the

Appellant had married to Saraswati Mahanta (deceased),

the daughter of the Informant-cum-PW9-Nilambara

Mahanta and since the couple were childless, the

Appellant married to the younger sister of his wife namely

Parbati Mahanta (deceased) and out of their wedlock, the

couple were blessed with two daughters and, accordingly,

the Appellant was staying along with his two wives and

two daughters (hereinafter all these persons were

referred to as the "deceased") in a thatched house at

Village Katupada, but the Appellant being seriously

annoyed with the infidelity of his two wives, was

quarrelling with them on several occasions with

settlement of the matter on each occasion, but the last

quarrel amongst them was, accordingly, settled on

04.06.2012. In the aforesaid situation, on 06.06.2012 in

afternoon in between 3PM to 4PM, the Appellant made a

telephone call to PW 10 Situ @ Dibyalochan Mahanta, the

grandson of PW1 and asked to inform his father PW 11

Khirod Mahanta that he (appellant) is going to murder all

the four deceased by setting the house on fire. PW 10,

accordingly, informed his father PW 11 who was working

in village Barabeda and on hearing such information, PW

11 rushed to the village Katupada to find with only gutted

house and dead bodies of all the deceased persons.

3. On this incident, PW 9 lodged an FIR against

the Appellant vide Ext.9 before the IIC Patna, PW 14

Ratan Kumar Sahoo who registered Patna PS case no. 57

of 2012 and took up the investigation. PW 14,

accordingly, investigated into the matter by examining

the witnesses as well as preparing spot map vide Ext. 10

and holding inquest over all the four dead bodies under

Exts. 7 and 8. He also dispatched all the four dead bodies

for Post Mortem Examination which was conducted and

prepared under Exts. 2 to 5. PW 14 also issued injury

requisition in favour of the Appellant vide Ext. 13. On

completion of investigation, PW 14 submitted the charge-

sheet against the Appellant for commission of offences

punishable U/Ss. 302/436/498-A of IPC. Finding prima

facie case, cognizance was taken for aforesaid offences

resulting in trial in the present case after denial of the

Appellant to the charge for offence U/Ss. 302/436/498-A

of IPC.

4. In the course of trial, the plea of the appellant

was denial simplicitor and false implication.

5. In support of the charge, the prosecution

examined altogether 14 witnesses and relied upon

documents under Exts. 1 to 13 as against the oral

evidence of two witnesses namely DW1 and 2 Madan

Nayak and Tapan Nayak by the Appellant.

6. After appreciating the evidence upon hearing

the parties, the learned Additional Sessions Judge,

Keonjhar convicted the Appellant for offences U/Ss.

302/436 of IPC by mainly relying upon the circumstantial

evidence discerned from PW Nos. 9, 10 and 11. However,

the appellant was acquitted for charge U/S. 498-A of IPC.

7. In assailing the impugned judgment of

conviction and order of the sentence, Mr.S.K. Baral,

learned counsel for the Appellant has submitted that

there was no direct evidence in the form of eye witness

account, but the learned trial Court has wholly relied

upon the evidence of in-laws of the Appellant, but

independent witnesses had not supported the prosecution

case and, thereby, it would not be safe to base conviction

merely on the evidence of interested witnesses like PW

Nos. 9, 10 and 11. It is also submitted that none of the

circumstance relied upon by the learned trial Court was

firmly established to form a chain of events so complete

to exclude every hypothesis consistent with the innocence

of the appellant, but on a scrutiny of evidence, it would

be definitely gathered that the appellant cannot be made

liable for setting the house on fire and thereby,

murdering all the four deceased persons. In this way, Mr.

Baral, learned counsel for the appellant has prayed to

allow the appeal.

8. On the other hand, Mr. P.K. Mohanty, learned

ASC has taken this Court through each of the

circumstance proved against the appellant and has

submitted that all the circumstance as firmly and fully

established against the appellant clearly points out to the

guilt of the appellant and the same is consistent with the

hypothesis of the guilt of the appellant, but the

circumstances cumulatively do not leave any other

hypothesis consistent with the innocence of the Appellant.

Mr. Mohanty, has accordingly prayed to dismiss the

appeal.

9. Gone through the evidence on record to

examine the sustainability of the judgment in the light of

rival submissions, but it appears to the Court that the

learned trial Court has heavily relied upon the evidence of

PW Nos. 9,10 and 11 to conclude the guilt of the

Appellant, which emanates/starts with the circumstance

of infidelity of two deceased wives of the Appellant

resulting in frequent quarrel and settlement between

husband and wives. In a case of circumstantial evidence,

the motive assumes significance and in this case, the

evidence of PW 7 Kailash Mahanta who is the maternal

uncle of the Appellant, in clear terms had testified in the

Court that prior to the occurrence, I was called to settle

the dispute between the accused person and his wives

and he along with Balaram Mahanta(PW 6) had been to

the house of accused to settle the dispute and such

settlement was effected two days prior to the occurrence.

The aforesaid evidence was reiterated by PW 8 Surendra

Nath Mahanta who testified in the Court that prior to the

occurrence, the wife of the appellant namely Saraswati

Mahanta had alleged before him that appellant was

quarrelling with her and with his other wife, and the

evidence of PW 8 also squarely revealed that the reason

behind the quarrel between the appellant and the

deceased wives was on account of suspicion of infidelity

of the two deceased wives of the appellant.

10. The evidence of PW Nos. 9,10 and 11 also

speaks in volume about the cause of dispute between the

appellant and his wives. It is also true that once a person

suspects the infidelity of his wife, such person may go to

any extent, of course it is not universal phenomenon. The

evidence of the prosecution clearly established the motive

of the appellant which is not only strengthened by the

evidence of PW 10 whose testimony clearly indicate that

at about 3 PM to 4 PM, the appellant had telephoned him

in his mobile and asked PW 10 to inform his father that

he (appellant) would commit the murder of the deceased

persons by setting the house on fire. PW 10 had

accordingly, informed his father PW 11 who also

confirmed such information passed by PW 10 to him over

mobile phone. The evidence of PW 11 further transpired

that he rushed to the village Katupada and saw the house

already burnt and his two sisters and two nieces were

already burnt (charred). Similarly, the testimony of PW 9

supports the evidence of other witness sufficiently. All the

aforesaid three witnesses PW 9, 10 and 11 were

subjected to incisive cross-examination, but nothing was

elicited from their mouth to discredit their evidence with

regard to the motive of the appellant for committing the

crime and the death of the deceased by burning.

11. It also transpired from the evidence of PW 1

that when he came to the spot, he saw the door of the

house was opened, but prior to it, the house was locked

from outside and the house as was locked from outside

was opened by one Tapan Kumar Nayak. The testimony

of PW 8 also transpired that in that house, the appellant

and his wives and children were residing together and on

06.06.2012 evening hours at about 6 PM, the occurrence

took place and the appellant came there after his (PW8)

coming to the spot and the persons assembled there

were abusing the appellant alleging that the appellant by

confining his wives and children had set fire to his own

house and committed murder of the deceased persons. It

was his specific evidence that none of the witnesses had

stated that the appellant at the time of arson was at all

trying to extinguish the fire or was worried for the lives of

the deceased persons. It is, therefore, a strong

circumstance of conduct of the appellant at the relevant

time of occurrence.

12. In a case of this nature, the evidence of the

Doctor also plays an important role and in this case,

Doctor Uttam Chandra Naik being examined as PW 2 had

testified in the Court that the opinion as to cause of death

of the deceased persons was due to burn which was

sufficient to cause death of a person in ordinary course of

nature and such evidence could not be assailed by the

defence in the cross-examination. The evidence of PW

Nos. 2, 9, 10 and 11 clearly established that the

deceased persons died of burn injuries, but the appellant

being the husband and present at the spot in terms of

evidence of PW 8 had not tried to rescue the deceased

persons which is an unnatural conduct on the part of the

Appellant and no husband or father would leave his wives

or children to die like this without making any effort. Had

the Appellant was afraid of the fire, he could have made

some attempt to extinguish the fire, but the evidence of

witnesses clearly goes to reveal that he was having

unnatural conduct for not trying to put out the fire.

13. On careful scrutiny of the evidence of record,

this Court does not find any error apparent in the finding

of the learned trial Court, which has rightly relied upon

the circumstance as follows in Paragraph 11:-

"11. In view of the foregoing discussions, prosecution has proved the following circumstances against the accused Thakura Mahanta to have committed murder of the deceased persons:-

(i) The accused along with deceased persons were residing in a thatched house at village Katupada.

(ii) Accused Thakura Mahanta was suspecting the character of his two deceased wives that they were having illicit relationship with some other persons and as such meetings were conducted to settle the dispute. Soon before the date of occurrence a settlement was made.

(iii) Accused Thakura Mahanta soon before the occurrence asserted by making telephone to Situ @ Dibyalochana Mahanta (P.W 10) that he is going to kill the deceased persons by confining them in his house and by setting fire to his house.

(iv) On 6.6 2012 at about 6 PM the house of Thakura Mahanta was set on fire and the deceased persons died of arson with burn injuries on their person.

(v) On 7.6.2012 Dr. Uttam Chandra Nayak in between 12 30 P.M. to 1.15 PM. conducted post mortem examination on the dead bodies and opined that the death of the deceased persons were due to burn injuries and they died within 12 to 24 hours from the time of his examination.