Orissa High Court

Pravati Digal vs State Of Odisha on 4 December, 2023

Bench: D.Dash, G.Satapathy

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                           CRLA No.400 of 2017
                                 AND
                           CRLA No.401 of 2017

          In the matter of Appeals under section 374(2) of the Code of
    Criminal Procedure, 1973 and from the judgment of conviction
    and the order of sentence dated 5th May, 2017 passed by the
    learned Additional Sessions Judge, Phulbani in Sessions Trial
    No.98 of 2015.
                                    ----

        Pravati Digal                      ....         Appellants
        (In CRLA No.400/2017)

        Birata Digal
        (In CRLA No.401/2017)

                                 -versus-
        State of Odisha
        (In both the Appeals)               ....       Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

                For Appellants   -     Mr.Amulya Ratna Panda
                                       (In both CRLAs)

                For Respondent -       Mr.P.K.Mohanty (ASC)
                                       (In both CRLAs)
   CORAM:
   MR. JUSTICE D.DASH
   MR. JUSTICE G.SATAPATHY
   Date of Hearing : 16.11.2023    : Date of Judgment : 04.12.2023

D.Dash,J. Since in both the Appeals, the judgment of conviction and

the order of sentence dated 5th May, 2017 passed by the learned

CRLA Nos.400 & 401 of 2017

Additional Sessions Judge, Phulbani in Sessions Trial No.98 of

2015 arising out of G.R. Case No.66 of 2015 corresponding to

Phiringia P.S. Case No.11 of 2015 on the file of the learned Sub-

Divisional Judicial Magistrate (S.D.J.M.), Phulbani have been

called in question, those were heard together for being disposed

of by this common judgment.

The Appellants (accused persons) thereunder have been

convicted for committing the offence under section 302 of the

Indian Penal Code, 1860 (for short, 'the IPC'). Accordingly, each

of them has been sentenced to undergo imprisonment for life and

pay fine of Rs.5,000/- (Rupees Five Thousand) and in the event of

realization of fine, the same shall be given to the children of the

deceased.

2. Prosecution Case:-

On 02.02.2015, one Dhananjay Nayak (Informant-P.W.3)

arrived at Phiringia Police Station presented a written report to

the Officer-in-Charge (OIC) of said P.S. stating therein that her

sister Sakambari was given in marriage with accused Birata Digal

and out of their wedlock, four daughters and one son were born.

It has been further stated therein that six months prior to the

presentation of the information, accused Birata assaulted his

sister demanding dowry and threatened her to kill and sometime

thereafter, accused Birata married the other accused Pravati for

CRLA Nos.400 & 401 of 2017

the second time. The degree of cruelty upon Sakambari, having

thus been on rise on everyday, ultimately when it became

untolerable, Sakambari came to the house of her brother (P.W.3)

and disclosed all those facts before him. She then stayed in the

house of her brother (P.W.3) for a month. But thereafter the

accused, having come to their place, persuaded her to go with

him with an assurance that they would lead happy marital life.

But, it is said that thereafter the accused Birata, having conspired

with the other accused Pravati whom she had married for the

second, poured kerosene on the body of Sakambari and set her

ablaze and they, in order to save skin, as an eyewash, had taken

Sakambari to District Headquarters Hospital, Phulbani for

treatment wherefrom she has been shifted to M.K.C.G. Medical

College & Hospital, Berhampur where she succumbed to the

severe burn injuries. It was also stated that in that M.K.C.G.

Medical College & Hospital where Sakambari was undergoing

treatment, U.D. Case, having been registered, inquest over the

dead body had been held and on police requisition, post mortem

examination over the dead body of the deceased had also been

conducted.

The written report to the above effect being received by the

OIC, Phiringia P.S., he treated the said report as FIR (Ext.1) and

upon registration of the case, directed the Sub-Inspector (S.I.) of

Police (P.W.13) to take up the investigation.

CRLA Nos.400 & 401 of 2017

3. In course of investigation, the Investigating Officer (I.O.-

P.W.13) examined the Informant (P.W.3). She (P.W.13)

apprehended the accused persons and sent them for their medical

examination. Being under the order of transfer, she (P.W.13)

handed over the charge of the investigation to the O.I.C. on

31.03.2015. The O.I.C. of Phiringia P.S. again directed another S.I.

of Police (P.W.14) to take up the investigation. The second I.O.

(P.W.14), in course of his investigation, recorded the statement of

the Informant (P.W.3) and submitted the preliminary Final Form

and on completion of the investigation, the I.O. (P.W.14)

submitted the Final Form placing these accused persons to face

the Trial for commission of the aforesaid offences.

4. Learned S.D.J.M., Phulbani, on receipt of the Final Form,

took cognizance of said offences and after observing the

formalities, committed the case to the Court of Sessions. That is

how the Trial commenced by framing the charge for the aforesaid

offence against these accused persons.

5. The prosecution, in support of its case, has examined in

total fourteen (14) witnesses during Trial. As already stated, the

informant who happens to be the brother of the deceased is P.W.3

whereas P.W.1 is the wife of the P.W.3. P.W.2 is the daughter of

the deceased through accused Birata. P.W.4 is wife of the younger

brother of the Informant and P.W.5 is the brother-in-law of the

CRLA Nos.400 & 401 of 2017

Informant. P.Ws.7 & 8 are the sisters of the deceased. P.W.10 is

the younger brother of P.W.3 (Informant). The first I.O. has been

examined as P.W.13 and the I.O., who has submitted the Final

Form has been examined as P.W.14.

Besides leading the evidence by examining the above

witnesses, the prosecution has also proved several documents

which have been admitted in evidence and marked Exts.1 to 7.

Out of those; important are the FIR (Ext.1); the post mortem

report (Ext.5) and the spot map (Ext.6).

6. The accused persons, having taken the plea of complete

denial and false implication, have examined one witness in

support of their defence as D.W.1.

7. Mr. A.R. Panda, learned counsel for the Appellants

(accused persons) submitted that there is no direct evidence to

connect the accused persons with the crime and the prosecution,

for the purpose, relies upon the circumstances. According to him,

the projected circumstances are of no avail and those cannot be

taken to be incriminating against the accused persons. It was

submitted that the evidence of the prosecution witnesses as

regards the statement made by the deceased implicating these

accused persons are highly unbelievable and those witnesses

when have given different pictures as to how they were told

when they were told and about whom or whose complicity they

CRLA Nos.400 & 401 of 2017

were so told by the deceased, according to him, the Trial Court

ought not to have placed reliance upon said evidence. He,

therefore, urged that the impugned judgment of conviction and

the order of sentence, which are impugned in this Appeal, are

liable to be set aside.

8. Mr.P.K. Mohanty, learned Additional Standing Counsel for

the Respondent-State, while supporting the finding of guilt

against the accused persons, as has been returned by the Trial

Court, submitted that the dying declaration of the deceased as

has been proved through the prosecution witnesses such as

P.Ws.1, 2, 4, 5 & 7 being consistent in so far as the roles of these

accused persons are concerned in dowsing the deceased with

kerosene and setting her ablaze, the Trial Court did commit no

mistake in accepting the same when no such material is

forthcoming that those witness had any such reason to falsely

implicating the accused persons and, therefore, that being taken

with the prior dispute between the accused and the deceased,

which have been proved through the Informant (P.W.3), the

brother of the deceased, which stands as the motive, the finding

of conviction and order of sentence are unassailable.

9. Keeping in view the submissions made, we have carefully

read the impugned judgment of conviction. We have also

extensively travelled through the depositions of the witnesses

CRLA Nos.400 & 401 of 2017

(P.W.1 to P.W.14) and have perused the documents admitted in

evidence and marked as Ext.1 to Ext.7.

10. There is no dispute that Sakambari died on account of

extensive burn injuries on her body when she was under

treatment at M.K.C.G. Medical College & Hospital, Berhampur.

The question arises as to who can be attributed to have caused

such burn injuries upon the deceased.

P.W.1 is the wife of the Informant (P.W.3). Her evidence is

that she, with her husband (P.W.3), Lanke Naik, Kalami Naik

(P.W.7), Bidio Naik (P.W.5) and others had gone to District

Headquarters Hospital, Phulbani where Sakambari was lying

with severe burn injuries. She has stated that on her query,

Sakambari (deceased) disclosed that her husband-Birata and the

other accused set fire at her with the help of kerosene. During

cross-examination, she has stated that they had arrived at District

Headquarters Hospital, Phulbani at 5.30 a.m. and therefrom, they

accompanied Sakambari to M.K.C.G. Medical College & Hospital,

Berhampur when Madhumita (P.W.2), the daughter of the

deceased and the accused was present. Having carefully gone

through the entire deposition of the witness, we find that no such

material has been elicited from her during cross-examination for

which doubt would arise in mind as regards the disclosure of

Sakambari relating to the complicity of accused Birata. The

CRLA Nos.400 & 401 of 2017

suggestion given to the witness that she had not so stated before

the I.O. during her examination, having been denied, that has

only been proved in part through the I.O. (P.W.13), who has

stated that P.W.1 had not stated before him that she had asked

the deceased about her injuries but not the other part, i.e.,

disclosure by Sakambari as regards the complicity of accused

Birata and another. However, when we find the evidence of

P.W.1 to be acceptable on the score that Sakambari had disclosed

before her about accused Birata to have set her ablaze by pouring

kerosene, from the recorded evidence of P.W.1 that she had also

implicated the other accused, we are not in a position to stretch

the same to the extent in saying that it is directed against the

accused Pravati that she meant or had hinted at. Then when we

proceed to the evidence of P.W.3, we find him to have stated to

have gone to Phulbani with his wife (P.W.2). It is his evidence

that his sister Sakambari (deceased) disclosed before his wife

Lotani (P.W.2) that both the accused persons have set her on fire

with the help of kerosene. From his evidence, when it is

forthcoming that both the accused persons were implicated by

Sakambari, yet the accused other than accused Birata being not

told by her name, we are not in a position to accept that the

disclosure of Sakamabari (deceased) was also regarding the

complicity of the accused other than her husband (Birata).

CRLA Nos.400 & 401 of 2017

P.W.4 has also stated that deceased Sakambari told before

her that accused Birata with his second wife set fire at her but

then who is the second wife is not stated by name either by this

witness or Sakambari to have told her. This witness appears to

have not been cross-examined, anything in respect of her

conversation with the deceased.

P.W.5 has reiterated the same version as those of other

P.Ws that Sakambari disclosed the accused persons to have set

fire at her but then from the version of P.W.5, we are not in a

position to accept that such disclosure was directed against the

accused other than accused Birata as her name was stated by

Sakambari as per the evidence of P.W.5.

The evidence of P.W.7, however, is only to the effect that

Sakambari had disclosed before them that it was accused Birata,

who had set her ablaze with the help of kerosene. Thus when we

find the evidence of prosecution to be consistent with regard to

the declaration being made by Sakambari when she was initially

attended by all those witnessed in District Headquarters

Hospital, Phulbani that accused Birata dowsed her with kerosene

and set her ablaze, we are not in a position to accept the evidence

of those witnesses about the disclosure before them implicating

the accused other than accused Birata. Therefore, in our

considered view, the judgment of conviction and the order of

CRLA Nos.400 & 401 of 2017