Orissa High Court
Dukhia @ Ranjan Pati And 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.648 of 2011
(An appeal U/S.374(2) of the Code of Criminal
Procedure, 1973 against the judgment passed by Sri.
A.P. Sahoo, Adhoc Additional District and Sessions
Judge, First Track Court No.II, Bhubaneswar in
Criminal Trial No.2/13 of 2009 arising out of Balianta
PS Case No.109 of 2008 corresponding to G.R. Case
No.2519 of 2008 of the Court of SDJM, Bhubaneswar)
Dukhia @ Ranjan Pati and ... Appellants
another
-versus-
State of Orissa ... Respondent
For Appellants : Mr. G.P. Dutta, Advocate
For Respondent : Mr. G.N. Rout, 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. This appeal assails the judgment of conviction
and order of sentence passed on 09.09.2011 by the
learned Adhoc Additional District and Sessions Judge,
First Track Court No.II, Bhubaneswar in Criminal Trial
No.2/13 of 2009, whereby the appellants were convicted
for offences punishable U/Ss.436/302/201/34 of IPC and
sentenced to undergo imprisonment for five years with
fine of Rs.1,000/- for offences U/Ss.436/34 of IPC, to
undergo imprisonment for life with fine of Rs.1,000/- in
default whereof, to undergo Rigorous Imprisonment (RI)
for further one year for offences U/Ss.302/34 of IPC and
to undergo RI for five years with fine of Rs.1,000/- in
default whereof, to undergo further RI for one year for
offences U/Ss.302/34 of IPC with stipulation of sentences
to run concurrently.
Factual Matrix
2. On 17.05.2007 at about 2.30 AM, the house of
the appellants-convicts was gutted and their niece
namely Anusaya Pati died in such house by burning. On
receipt of such information over phone at about 6.30 AM,
the SI of police PW20, Trilochan Nayak proceeded to the
spot in village Pari Basudeipur after informing the OIC
Balianta PS and on receipt of report from convict No.1 at
the spot, he conducted inquiry and subsequently,
registered the same as UD Case No.1 dated 17.05.2007
after reaching at the police station. In course of inquiry,
PW20 held inquest over the dead body of the deceased,
sent the dead body for PM examination and examined the
witnesses. In the inquiry, the death of the deceased was
opined by the doctor to be on account of syncope arising
out of burn shock.
While the matter stood thus, after a gap of near
about 383 days on 04.06.2008 PW15 Janaki Pati, the
younger sister of the deceased appeared in news item of
OTV and claimed that her deceased-sister was murdered
by the convicts and she could not disclose it before
anybody out of fear and threat of the convicts. After
getting this news, on 06.06.2008 PW7 Sujit Kumar Panda
took charge of investigation of UD Case No.1 of 2007 and
proceeded to examine Janaki Pati, but during enquiry in
UD Case, finding the death of the deceased to be
homicidal in nature, PW 7 closed the UD Case and drew
up a plain paper FIR vide Ext.5 and took up the
investigation of the case, in the course of which, he
proceeded to the village Balarampur, PS Athagarh where
the maternal uncle and grandparents of the deceased
were staying and ascertained from them that the convicts
had assaulted the deceased to death and burnt her to
make out a case of burning. PW7 also examined PW15,
the sister of the deceased, who disclosed that her
deceased-sister was in love with one Ghania Jena of her
village and on 15.05.2007 at night, the said Ghania Jena
had come to their house to meet the deceased, which
was seen by appellant No.1 namely Ranjan Pati and,
subsequently, appellant No.1 assaulted the deceased. On
this issue, on the next day on 16.05.2007, the deceased
decided to elope with Ghania Jena and, accordingly, on
17.05.2007 at about 1.30 AM in the mid night, the
deceased left the house being accompanied by PW15 and
DW1 namely Jyoti who is also a cousin of the deceased
and PW15, but unfortunately, on the canal bridge, the
appellant No.2 caught hold of the deceased and put cloth
on her mouth and appellant No.1 slapped her on the base
of her left ear and she fell down there and, subsequently,
the appellants lifted the deceased to the thatched house
and tied PW15 and DW1 on a pole by gagging their
mouths and brought petrol and kerosene from the house
and poured the same on the deceased and appellant No.1
set the dead body of the deceased on fire along with her
house and, thereafter, the appellant No.1 freed both
PW15 and DW1 and threatened them not to disclose the
incident before anybody. Due to this, they could not
disclose the incident to anyone and, subsequently after
being assured, PW15 disclosed the incident in the news
item of OTV, which was video graphed and aired in the
news of OTV.
3. On the plain paper FIR of PW7, Balianta PS
Case No.109 of 2008 was registered and the matter was
investigated into by PW28 and in the course of
investigation, PW28 examined the witnesses, prepared
the spot map vide Ext.14, arrested both the appellants on
09.06.2008 and also seized Hero Honda Splendor Motor
Cycle of appellant No.1 and forwarded the appellants to
the Court. As usual on completion of investigation, PW28
submitted charge-sheet against the appellants for
offences punishable U/Ss.436/302/201/34 of IPC under
which cognizance was taken. The appellants were,
accordingly, sent to the trial after their denial to the
charge. This is how the trial commenced in this case.
4. In support of the charge, the prosecution
examined altogether 28 witnesses and proved 15
documents under Exts.1 to 15 as well as identified three
material object vide MOI-III as against the sole oral
evidence of DW1 Nirupama Tripathy by the appellants. Of
the witnesses examined, PW7 is the informant-police
officer, PW15 is the eye witness to the occurrence, PW16-
Anjana Pati (mother of the deceased), PW17 Basant
Kumar Dash (maternal uncle of the deceased), PW20 was
the IO in UD Case, PW21 is the doctor, who conducted
PM examination over the dead body of the deceased,
PW22 is the Cuttack Bureau Chief of OTV, PWs.24 and 25
are the independent witnesses and PW26 is the
grandfather of the deceased.
5. The plea of the appellants in the course of trial
was one of denial simplicitor and false implication. In
addition, the appellants had taken the plea that on the
date of occurrence at the relevant time, the deceased
went to Thakura room to bring puja articles and cash, but
she was accidentally caught with fire and died.
6. On conclusion of trial and after appreciating the
evidence on record upon hearing the parties, the learned
trial Court convicted the appellants by the impugned
judgment and sentenced them to the punishment
indicated supra. The learned trial Court convicted the
appellants mainly on the evidence of PW15 to 17 and 22
and 26.
Rival Submissions
7. In assailing the impugned judgment of
conviction and order of sentence, Mr. G.P. Dutta, learned
counsel for the appellants has assidulously submitted that
the learned trial Court has misdirected itself while
appreciating the evidence on record and it has never
considered the delay of more than one year for lodging of
the FIR, which itself creates a big suspicion to the
veracity of the prosecution case. It is further submitted
by him that when PW15 did not speak about the
occurrence for more than a year, her evidence cannot be
considered to be reliable in view of the fact that although
she was all along present with DW1 at the time of
occurrence, but she preferred not to speak about the
incident, rather her earlier statement before the police
was not incriminating any of the appellants. It is also
submitted by him that the ocular evidence of PW15 was
at variance with medical evidence and she does not
reveal about the homicidal death of the deceased, but the
learned trial Court has fallen in error by holding the
nature of death of the deceased to be homicidal. It is
further submitted by him that when the learned trial
Court has believed the evidence of PW15, but how it has
disbelieved the evidence of DW1, since she was stated to
be present at the time of occurrence and no possible
reasoning has been assigned by the learned trial Court as
to why it disbelieved the evidence of DW1 and on
comparative analysis of evidence of PW15 on one hand,
DW1 and PW21-doctor on the other hand, the
prosecution case would be found to have no leg to stand
and the appellants cannot be convicted for any offence.
On the aforesaid submissions, Mr. Dutta, learned counsel
for the appellants has prayed to allow this appeal by
setting aside the conviction and sentence of the
appellants.
8. On the other hand, Mr. G.N. Rout, learned ASC,
however, has submitted that although there was a delay
of 386 days in lodging of FIR, but the delay by itself
cannot destroy the prosecution case, especially when the
delay has been properly explained. Mr. Rout has also
submitted that the learned trial Court has rightly believed
the evidence of PW15 by discarding the inadmissible
evidence of DW1 who being a relative of the appellants,
had deposed falsehood because her family was being
maintained by the appellants. Mr. Rout has, however,
submitted that the learned trial Court has not committed
any illegality in convicting the appellants and thereby, the
appeal deserves no consideration. He, accordingly, has
prayed to dismiss this appeal.
Analysis of law and evidence
9. In order to examine the legal sustainability of
the impugned judgment of conviction and order of
sentence, this Court now proceed to examine and scrutinize
the entire evidence on record by re-appreciating it in the
light of rival submissions. At the outset, it is reminded that
admittedly there is a long delay of 386 days in lodging of
FIR in this case, but Law is also well settled that delay in
lodging of FIR is not always fatal to the prosecution case,
unless such delay has caused exaggeration or
embellishment in the FIR causing prejudice to the accused
or it is shown by the accused that such delay was
committed with an intention to fabricate the case against
him. In this case, there is of course delay of considerable
period, but the same needs to be examined with the
evidence on record. It appears from the impugned
judgment that the learned trial Court has mainly relied
upon the evidence of PW15 by considering her to be an eye
witness to the occurrence and it is, therefore, imperative to
examine the evidence of PW15 at the first instance. The
evidence of PW15 transpires that the appellants are her
uncles and the deceased was her elder sister and she has
passed matriculation. According to PW15, her deceased-
sister was in love with one Ghania Jena of her village, but
the appellants who are their uncles (parental uncles)
opposed to that love affair since Ghania Jena belongs to
lower caste and they are Brahmin by caste and at the
relevant time of occurrence, she and her deceased-sister
were staying in one and same house with the appellants
along with their family members. It is the specific evidence
of PW15 that the appellants were also assaulting his
sister(deceased) due to her above love affair. On coming to
her main evidence, PW15 has testified in the Court that on
15.05.2007 at night the deceased had talked with Ghania
Jena inside their house which was noticed by appellant
No.1, who drove Ghania Jena from their house and he
severely assaulted the deceased and she had seen the
entire incident so also her cousin-DW1 and her
grandmother. It is further revealed from the evidence of
PW15 that on the same day at about 11.30 PM in the night,
the deceased told that she would go with Ghania Jena
which was also heard by DW1 and, accordingly, at about 1
AM in the mid night, the deceased by carrying some
wearing apparels left the house being accompanied by
PW15 and DW1, but she was caught hold off by appellant
No.2, who put a cloth on her mouth and in the meantime,
appellant No.1 severely assaulted the deceased by giving
fist blows on her both ears by which the deceased died at
the spot and, thereafter, both the appellants brought the
dead body of the deceased to their Thakuraghar and
confined in the said Thakuraghar and both the appellants
assaulted PW15 and DW1 and tied them in a pillar and their
grandmother Rama Pati sat near the said pillar and,
thereafter, both the appellants set fire to the said
Thakuraghar by pouring petrol and kerosene on the body of
the deceased and thereafter, the appellants threatened
them not to disclose the entire fact to anybody and out of
fear, she did not disclose to anybody.
10. At this stage, this Court feels it proper to come
to the medical evidence which would be very important in
the circumstance because PW15 had stated that the
deceased died due to assault by the appellant No.1 and
she was set with fire after pouring kerosene, but the
doctor PW21, who had conducted autopsy over the dead
body of the deceased has testified in the Court that the
cause of death of the deceased was syncope arising out
of burnt shock, but PW21 has never said to have noticed
any injury on the person of the deceased nor is his
evidence disclosed about cause of death due to assault.
Had the death been taken place due to assault of the
appellant No.1 on the ear of the deceased, it would have
been definitely found by PW21 who has admitted in cross
examination that at the time of PM examination, smell of
petrol or kerosene or diesel was not coming out from the
dead body of the deceased and if petrol or kerosene or
diesel could have been used, then some smell could have
been detected. In the circumstance, the evidence of
PW21 clearly at variance with the ocular evidence of
PW15. Firstly, the death was on account of syncope
arising out of burnt shock, whereas according to PW15
death was due to assault by appellant No.1 on the ear of
the deceased and secondly, no traces of petrol or
kerosene or diesel was detected on the body of the
deceased by the doctor, whereas the evidence of PW15
clearly indicates use of petrol and kerosene by the
appellants.
11. On the contrary, learned trial Court by holding
the death of the deceased to be homicidal has observed
that use of inflammable cannot be ruled out for setting
the deceased to fire by assigning the reason "as there
was no smell of burn clothes except only the smell of
burn skin coming out of the body since there was no
trace of cloth on the body, the clothes worn by the
deceased and also the clothes used to gag her mouth
were completely destroyed by fire, which were used as an
aid(item) in pouring the inflammable to burn the
deceased and, therefore, there may not be smell of petrol
or kerosene or diesel detected on the deceased, but such
theory or explanation as offered by the learned trial Court
appears to be wholly unacceptable, especially when there
appears specific evidence of PW15 that the appellants
poured petrol and kerosene on the dead body of the
deceased to set her on fire, in addition to what transpires
from the cross-examination of PW21 that had the body of
the deceased being burnt by use of petrol or kerosene or
diesel, the smell of petrol or kerosene or diesel could
have been detected. Besides, PW20- who had conducted
inquest over the dead body of the deceased, has also
admitted in the cross examination that he did not find
any smell of petrol or kerosene or diesel from the body of
the deceased and he also did not find any candle, match
box or lighter excepting the half burnt bamboo sticks. The
prosecution has also not able to establish that any
inflammatory substance was used to burn the dead body.
12. Yet another important evidence has been
looked down by the learned trial Court which is the
evidence of DW1, as it has refused to accept the evidence
of DW1 by assigning the reason that DW1 and her family
members were being maintained by the appellants, but
such reason is quite not acceptable, especially when no
suggestion was even put forth to DW1 that she was
supporting the appellants as they(appellants) were
maintaining her family members. It is also very important
that PW15 has testified in the Court that at the time of
occurrence, she and DW1 had accompanied the
deceased. It therefore, appears to the Court that when
one witness claiming herself to have witnessed the
occurrence along with another witness, but the other
witness is not at all supporting the claim of former
witness in respect of occurrence and the same assumes
great significance when the former witness for the first
time stating about the occurrence against the persons
who were earlier not held responsible by her, in the news
item of a media channel after a gap of more than one
year which makes her evidence quite suspicious and it
would not be safe to accept such evidence of a witness
who can be categorized as not wholly reliable without any
corroboration.
13. Additionally, PW15 in her evidence has also
stated that about 3 to 4 months after the occurrence,
OTV staff came to her and before OTV she expressed her
real fact, but PW15 has not approached the police
thereafter for around 9 to 10 months, which in the
circumstance, appears to be not only fishy, but also
doubtful. Quite understandably, PW15 had in fact got
sufficient time to disclose about the incident, no matter
she came up with a theory subsequently that due to
threatening of the appellants, she could not state the
matter to anybody, but when she could disclose the
matter to OTV staff after 3 to 4 months of the
occurrence, what prevented her not to disclose about the
incident before her mother, brother and Grandparents
and to the police for 9 to 10 months after disclosing the
same before news channel. Logically it can be proved,
had there been any ring of truth in the evidence of PW15
she could have narrated the incident to others on whom
he reposed trust and faith, like her family members, but
there appears no evidence to that effect. PW15 has also
admitted in the cross examination that she had also not
disclosed the incident before PW7, and excepting to the
family members of her maternal uncle, she had not
disclosed about the occurrence to anybody else. It again
appears doubtful, since the family members of PW15
being examined as PWs.16, 17 and 26 in this case had
also not lodged any FIR after learning about the incident
from PW15. It is also not forth coming as to when PW15
disclosed about the incident before PW16, who is her
mother. Further, the testimony of PW22, who is the OTV
bureau head, revealed that in July, 2007 on receipt of an
anonymous call, they(OTV team) ascertained about the
incident from PW15, but they had never informed the
police. It is also not quite convincing that they knew
about the incident in July, 2007 & they aired the news
article in the year 2008 and informed the police
thereafter, but what prevented them not to inform the
police soon after receipt of the information in July, 2007
and the news channel being a responsible channel should
have informed the police soon after receipt of the
information and there was also no impediment for the
news channel to inform the police. It is also not forth
coming from the evidence of PW22 as to when they
recorded the CD and who had given the information to
them.
14. In the circumstance, the evidence of PW20
appears to be very much relevant inasmuch as soon after
the incident, he had conducted the inquiry in the UD
Case, but the cross examination of PW20 discloses that
nobody had stated before him about the source of fire
and during the spot visit, he had examined the villagers
and relatives of the deceased including PW15 and DW1
later on and enquired about the sources regarding cause
of death of deceased, but during his inquiry nobody
complained before him that the appellants committed
murder of the deceased. One of another important aspect
that the prosecution has failed to examine the said
Ghania Jena, although it comes from the evidence of
PW15 that the appellants were opposed to the
relationship of the deceased with Ghania Jena. The
learned trial Court has come up with a reasoning that
since Ghania Jena was working outside country, he could
not be examined, but in a case of this nature, when the
evidence appears to be not inspiring, the prosecution
must have to come out with clear the evidence by taking
necessary steps for examination of Ghania Jena. The
learned trial Court has, however, taken into consideration
the plea as advanced by PW15 about the motive behind
crime and intention of the appellants, but such motive
leading to intention of the appellants has not been
established by the prosecution beyond all reasonable
doubt. It is also not convincing as to why the evidence of
DW1 would be disbelieved on this score. Had there been
any relationship of the deceased with Ghania Jena, it
would have been deposed to by DW1 or the prosecution
could have elicited from her mouth. PWs.16, 17 and 26
were post occurrence witnesses and they had derived
their knowledge about the incident from PW15 whose
evidence appears to be not only shaky, but also doubtful,
since a person after knowing the murder of his/her near
or dear one could not have remained silent and would
come out for the first time through a news article
telecasted by OTV media, who had also not explained to
clear the doubt and as to why it remained silent from the
date of receipt of such information till the date of
telecasting such news item in the channel. In the
aforesaid evidence and circumstance, the explanation for
delay in lodging of FIR for 386 days appears to be
unacceptable and it is fatal to the prosecution case.
15. On a cumulative analysis of evidence of
PWs.15, 20, 21, 22 and 26 as well as the other evidence
on record, this Court is of the considered view that the
prosecution case is shrouded with mysteries and doubts
which could not be cleared by the prosecution and,
thereby, the appellants are entitled to benefit of doubt.
The prosecution was also not been able to offer any
explanation for the delay of 386 days in lodging of FIR or
coming out to state about the incident after a gap of one
year and the evidence of PW15, the so called eye witness
to the occurrence is of no relevance and very much
doubtful. In such circumstance, this appeal by the
appellants not only merits consideration, but also
required to be allowed, since the impugned judgment of
conviction and order of sentence are unsustainable in the
eye of law.
16. In the result, the appeal stands allowed. As a
logical sequitur, the impugned judgment of conviction
and order of sentence passed by the learned Adhoc
Additional District and Sessions Judge, First Track Court
No.II, Bhubaneswar in Criminal Trial No.2/13 of 2009 are
hereby set aside.
17. Since the appellants are on bail upon appeal,
they are discharged of their bail bonds.
(G. Satapathy)
Judge
I Agree
(D.Dash)
Judge
Signature NotOrissa High Court, Cuttack,
Verified
Dated the 4th day of December, 2023/Subhasmita
Digitally Signed
Signed by: SUBHASMITA DAS
Designation: Jr. Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 05-Dec-2023 17:57:51
