Alok Gochhayat vs State Of Orissa
2023 Latest Caselaw 5216 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                               CRLA No.145 of 2016
    In the matter of an Appeal under section 374(2) of the Code of Criminal
    Procedure and from the judgment of conviction and order of sentence
    dated 11th February, 2016 passed by the learned Sessions Judge,
    Jagatsinghpur in C.T. Case No.109 of 2013.

                                    ----

         Alok Gochhayat                         ....         Appellant

                                    -versus-

         State of Orissa                        ....         Respondent
                Appeared in this case by Hybrid Arrangement
                         (Virtual/Physical Mode):
                 For Appellant      -      Mr. H.B. Dash
                                           (Advocate)

                 For Respondent     -      Mr.S.K. Nayak,
                                           Addl. Government Advocate
    CORAM:
    MR. JUSTICE D.DASH
    DR. JUSTICE S.K. PANIGRAHI

    Date of Hearing :26.04.2023      ::    Date of Judgment: 05.05.2023

D.Dash,J. The Appellant, by filing this Appeal has assailed the judgment of conviction and order of sentence dated 11.02.2016 passed by the learned Sessions Judge, Jagatsinghpur in C.T. No.109 of 2013 arising out of G.R. Case No.561 of 2013 corresponding to Ersama P.S. Case No.59 of 2013 of the Court of the learned Judicial Magistrate First Class, (J.M.F.C.) (P), Kujanga.

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The Appellant (accused) having faced the trial being charged for commission of offence under sections 498-A/304-B/302 of the Indian Penal Code, 1860 (for short, 'the IPC') and section 4 of the Dowry Prohibition Act (D.P. Act) and has been finally convicted for committing the offence under section 302, I.P.C. Accordingly, he has been sentenced to undergo imprisonment for life with fine of Rs.10,000/- with the default stipulation to undergo rigorous imprisonment for one year.

2. Prosecution case is that the marriage between the accused and the deceased had taken place sometime in the year 2012-13. It is stated that for the said marriage there was a demand of cash of Rs.40,000/- from the side of the accused and that was met in part in the said marriage. Some gold ornaments and other household articles had also been given. It is said that since the balance demand of cash of Rs.10,000/- was not met, the accused with other members of his family were assaulting and threatening the deceased. On 12.05.2013, the accused and his elder brother Ashok Gochhayat as well as Tikili Gochhayat, the sister-in-law quarreled with the victim for non-fulfilment of the demand of dowry. The victim then protested. So, it is said that this accused with his brother and parents tied the hands and mouth of the deceased and set her on fire. On hearing the screaming of the victim, the neighbours came to her rescue and they then shifted her to the District Headquarter Hospital (DHQ Hospital), Jagatsinghpur where she was declared dead. The brother of the deceased (Informant-P.W.7) then presented a written report before the Inspector-in-Charge (I.I.C.) of Ersama Police Station. The I.I.C. treating the same as F.I.R., immediately registered a case and

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directed one Assistant Sub-Inspector of Police (ASI-P.W.9) attached to that Police Station to take up investigation.

In course of investigation, the Investigating Officer (I.O.-P.W.9) examined the Informant and other witnesses. He too visited the spot. By then an U.D. Case had already been registered at Jagatsinghpur Police Station and in course of inquiry, the inquest over the dead body of the deceased had already been held and Post Mortem Examination had been conducted over the dead body of the deceased. The I.O. having seized some incriminating articles in course of investigation had also sent those for chemical examination through Court. On completion of investigation, finally, this accused with his parents were placed for trial for commission of offence under sections 498-A/304-B/302 of the I.P.C. and section 4 of the D.P. Act.

3. Learned J.M.F.C., (P), Kujanga on receipt of the Final Form, took cognizance of the said offences. As the presence of the parents of this accused could not be secured, learned J.M.F.C. spilt up the case against the accused and after observing the formalities committed the case to the Court of Sessions for trial. That is how the trial commenced against this accused by framing the charge for the above offences.

4. In the trial, the prosecution has examined in total ten witnesses. As already stated, the Informant who is the brother of the deceased has been examined as P.W.7. P.W.1 to 6 are the post occurrence witnesses, who arrived at the spot and found the deceased sitting with burn injuries. The Doctor, who had conducted the Post Mortem Examination over the dead body of the deceased has come to the witness box as P.W.8 and the

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I.O. has been examined as P.W.9. The Police Officer, who had conducted inquiry in the U.D. Case registered at Jagatsinghpur Police Station had come at the end as P.W.10.

The prosecution besides leading the evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Ext.1 to 12. Out of those, the important are F.I.R. (Ext.2), the inquest report (Ext.1), the Post Mortem Examination Report (Ext.3).

5. The plea of the defence is that of denial and false implication. It has been specifically stated by the accused that he was not present in the house at the night of the occurrence and the house having been gutted with fire on account of short circuit in the supply of electricity, the deceased had received those burn injuries and, therefore, he claims to have no hand in that incident.

From the side of the defence, the accused with the permission of the court has examined himself as D.W.1.

6. The Trial Court having gone through the evidence of the Doctor who had conducted the post mortem examination of the deceased, i.e.,. P.W.8 as also the inquest report and the evidence of P.W.10, who had conducted the inquest over the dead body of the deceased and the evidence of other witnesses has arrived at a conclusion that the deceased met her death on account of severe burn injuries and its complications. In fact, this aspect of this case was not under challenge before the Trial Court and that is also the position before us. The evidence of P.W.8 is very clear that he had found extensive burn injuries all over the body of

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the deceased with smell of kerosene coming out which too has been noted in his report (Ext.3). It is his positive evidence that the death was on account of shock resulting from ante mortem burn injuries as had been assessed at 100%. With such evidence of the Doctor and the evidence of other witnesses, who have seen the deceased with such extensive burn injuries all over her body and the death of the deceased having taken place shortly thereafter, We find absolutely no difficulty in recording our concurrence with the finding of the Trial Court that the death of the deceased was on account of the complications arising from severe burn injuries all over her body.

7. Learned counsel for the Appellant submitted that the Trial Court has gone wrong in relying upon the evidence of P.W.2,3,4 and 5 before whom it is said that the deceased had given her statement as to how she received the burn injuries. It was submitted that those witnesses are not the neighbours of the accused and have never stated anything about the marriage, the demand of dowry and torture on account of non-fulfilment of the said demand. According to him, there being discrepancies in the evidence of P.W.2,3,4 and 5 as regards the involvement of the persons as to have been told by the deceased, said versions of the witnesses ought not to have been accepted as are quite unsafe. He further submitted that the Trial Court having not taken into account the surrounding circumstances which have emerged from the evidence of prosecution witnesses has completely erred in holding that the prosecution has established the charge under section 302, I.P.C. as against this accused.

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8. Learned Additional Government Advocate for the Respondent refuting the above submission submitted that the finding of guilt recorded by the Trial Court is unimpeachable. According to him, the overwhelming evidence being there on record that the deceased immediately after the occurrence disclosed all such facts and circumstances as to how she was set ablaze by this accused and his other family members and when no such material had surfaced to doubt the version of those witnesses as it is not the case of the defence that they were having any enmity with the accused, the accused has been rightly convicted for commission of offence under section 302, I.P.C. Furthermore, the plea of absence in the house in the night having been rightly disbelieved, since no further explanation has come forward from the side of the accused as to how the deceased received such burn injuries in the house, the order of conviction is well in order.

9. Keeping in view the submissions made, We have carefully read the impugned judgment passed by the Trial Court. We have also travelled through the depositions of the witnesses (P.W.1 to P.W.10) and have perused the documents such as Ext.1 to Ext.12.

10. Admittedly, there is no eye witness to the occurrence as to how the deceased received the burn injuries all over her body and as to who did what in causing such burn injuries upon the body of the deceased.

The prosecution relies upon the evidence of P.Ws. 2, 3, 4 and 5 before whom the deceased had disclosed regarding the happening of the incident and how and as to under what circumstances she received the burn injuries all over her body. The other circumstance which is heavily relied upon the prosecution is that the deceased and this accused being the

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husband and wife since were residing under one roof and when the explanation put forth by the accused that the deceased received the burn injuries all over her body by coming in contact with the electric charge on account of short-circuit in the electric connection in the house has been found to be false. The prosecution having discharged the initial burden, for the failure of the accused to put up the explanation as the circumstance under which the deceased received the burn injuries were within his special knowledge as being obligated under the 106 of the Evidence Act, it is said that the culpability of the accused would also stand.

11. Thus now we proceed to critically scrutinize evidence of those prosecution witnesses i.e. P.Ws. 2 to 5. P.W.2 is the neighbour of the accused and the houses are intervened by the two to three other houses. According to her, in the intervening night of 13/14.05.2013, it was around 3.30 am, when she was sleeping, she heard hullah and rushed to the house of the accused and saw the house to have been gutted fire. She has stated that she with other villagers tried to extinguish the fire by pouring water and then saw the deceased sitting in front of the accused with burn injuries all over her body without putting any cloth over her body. Her further evidence is that, when people asked the deceased about the incident, she told that her husband had set fire at her. She has stated that she was present when the deceased was so asked by the villagers. It is true that she has not been able to specifically name any as to who were present or who arrived after her arrival. That in our considered view does not however create any doubt in mind on the veracity of her evidence, when she has also clearly stated such disclosure to have been made by the deceased was not hearsay and she claims to be so saying as having heard

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from others. There also appears no such serious contradiction so as to doubt her presence at the relevant time near the house of the accused. It has not also been suggested to her that she has no house in the vicinity. Simply a suggestion has been given that she has falsely implicated the accused because of the enmity but that is without citation of any such instance.

P.W.3 has stated that having heard hullah in the intervening night of 13/14.05.2014 in between 3 to 3.30 am, he had been to the house of the accused and after having poured water in the house to extinguish the fire, when he with others went to the other side of the house, where they saw the deceased sitting with burn injuries all over her body and she was then able to speak. It has been further stated that when he asked, she disclosed that her husband and mother-in-law had set her ablaze. Although during cross-examination, it was suggested that all those facts had not been stated by him in his statement record upon examination under section-161 of the Cr.P.C., those having not been proved through the P.W.0, the I.O., those are simply to be ignored.

The other witness, P.W.4 has stated that the deceased disclosed before him that this accused (husband) and parent-in-laws tied her in a saree, sprinkled kerosene and set her on fire.

Thus, it appears that P.W.2 when implicates this accused; P.W.3 has implicated this accused and his mother; whereas P.W.4 has implicated this accused and his parents and has further stated about the manner under which she was set on fire. Fact however remains that despite cross-examination, the evidence of these three witnesses have not been shaken in any manner, so as to doubt their version that they had gone to spot and heard about the incident from the deceased. It's no doubt

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true that the version of the deceased as stated by P.W.3 and P.W.4 are with little improvement yet those are consistent with regard to the complicity of this accused (husband). Moreover, the defence has not even suggested to these witnesses as to whether when the deceased told about the incident to their hearing they were not present.

The evidence of P.W.5 is also having little improvement with regard to the involvement of the parents in further saying that it under the instruction of the sister-in-law of this accused. Nonetheless she is not exonerating this accused in any manner and the evidence as to her presence has not impeached nor can be doubted for some circumstances coming in that way. We also cannot shut our eyes to the ground reality that under the circumstances when the villagers would be rushing to a house being gutted with fire and seeing the woman with extensive burn injuries would naturally ask the woman as to what happened and how she received the burn injuries. Although the deceased was having burn injuries all over her body, the time gap between the happening of the incident and arrival of these witnesses being very little, it cannot be readily inferred that it was the consequence of house burning. There is no such other evidence on record that deceased was not in a position to speak and the medical evidence coming from the lips of the P.W.8 stands to the effect that although the deceased with such injuries may not be able to speak specifically, she would be able to utter. The evidence of this witness, P.W.8 that the person having extensive burn injuries would be able to speak means that speaking as a normal man. Thus, we find that the evidence of all these witnesses are consistent on the score that the deceased had implicated this accused who happens to be her husband to have set her on fire.

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12. At this juncture, we find that when the accused had taken a plea that the deceased received burn injuries on account of coming in contact with electric charge in view of the short-circuit in the electric connection in the house; there is however absolutely no material to provide any support to the said plea. The Doctor who had conducted autopsy over the dead body of the deceased i.e. P.W.8, when has clearly stated that the smell of kerosene was coming out of the body; he has not been asked by the Defence as to whether such burn injuries were resulting from electrocution. Moreover, had it been a case that the deceased received those burn injuries on account of electrocution, this P.W. 8 must have indicated that aspect that the body was found charred. When the fact remains that burn injuries caused on account of fire and the burn injuries due to electrocution do have distinct and different appearance and characteristic, the defence has remained even without giving any suggestion on that score. The evidence of D.W.1 on that score is not at all acceptable. Thus, we find that the explanation given by the accused is totally false. When it is stated that the accused was not present in the house during night, the very plea taken by the accused that the death was due to the burn injuries received on account of electrocution is falsifying that very plea. As per the defence case, the incident had when took place in the absence of the accused in the house; then how would it be that the accused could know as to under what circumstance, the deceased received those burn injuries especially, he is not stating to have heard it from any of his family members or others. So such false explanations one after the other provides corroboration to the evidence P.Ws. 2 to 5.

13. In view of all these above discussion of evidence, we find that the Trial Court did commit no error in accepting the evidence of P.Ws. 2 to 5

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that before them, the deceased had disclosed regarding the happening of the incident wherein she had received those burn injuries in implicating her husband i.e. the present accused; when the defence has not even shown any remote reason for all these witnesses to falsely implicate this accused.

On a conspectus of discussion of evidence as hereinabove, we are of the view that the finding of guilt recorded by the Trial Court against the accused for commission of the offence under section 302 of the IPC is well in order and the accused has rightly been convicted and sentenced thereunder.

14. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 11.02.2016 passed by the learned Sessions Judge, Jagatsinghpur in C.T. Case No. 109 of 2013 are hereby confirmed.

(D. Dash) Judge.

                Dr. S.K. Panigrahi       I agree.




                                                                (Dr.S.K. Panigrahi)
HIMANSU         Digitally signed by
                HIMANSU SEKHAR                                         Judge.
SEKHAR          DASH
                Date: 2023.05.05
DASH            17:06:59 +05'30'

          Himansu





                CRLA No.145 of 2016