Dambarudhar Nial vs State Of Orissa
2023 Latest Caselaw 6281 Ori

                                    IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                CRLA No.840 of 2019

                                (From the judgment of conviction and order of sentence dated
                                18.08.2018 passed by the learned Additional Sessions Judge,
                                Dharamgarh in Criminal Trial (Sessions) No.02 of 2016).

                                Dambarudhar Nial                       ....         Appellant

                                                           -versus-

                                State of Orissa                        ....        Respondent


                                Advocates appeared in the case:
                                For Appellant             :           Mr. G.C. Mohanty, Adv.
                                                           -versus-

                                For Respondent             :            Mr. S.K. Nayak, AGA


                                           CORAM:
                                           MR. JUSTICE D. DASH
                                           DR. JUSTICE S.K. PANIGRAHI

                                             DATE OF HEARING:-11.01.2023
                                            DATE OF JUDGMENT:-17.05.2023

                                  Dr. S.K. Panigrahi, J.

1. The Appellant, in this Appeal, assails the judgment of

conviction and order of sentence dated 18.08.2018 passed by

the learned Additional Sessions Judge, Dharamgarh in

Criminal Trial (Sessions) No.02 of 2016, arising out of C.T.

No.108 of 2015 corresponding to Koksara P.S. Case No.49 of

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 1 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 2015 of the file of the learned J.M.F.C., Jaipatna; wherein the

learned Additional Sessions Judge, Dharamgarh has

convicted the Appellant (accused) for commission of offence

punishable under Section 302 of the I.P.C. Accordingly, the

accused has been sentenced to undergo imprisonment for life

and to pay a fine of Rs.10000/-, in default to undergo R.I for

one year more.

I. CASE OF THE PROSECUTION

2. The case of the prosecution in brief is that on 03.03.2014 the

informant Udhaba Jal submitted a written report at Koksara

P.S stating that his sister had married to the accused 14 years

ago. On 25.02.2015 at about 8.00 P.M. the present Appellant

poured kerosene and burnt his wife who succumbed to her

burn injuries in Bhawanipatna hospital. One Bhaktaram Jal

informed the matter to the informant who was working at

Sambalpur. At Bhawanipatna Hospital he met the victim

Sindhuka who also stated that the present accused had burnt

her. At Bhawanipatna hospital written report was submitted

and the same was sent to Koksara P.S. upon which Koksara

P.S. Case No.49 of 2015 was registered. During investigation,

inquest over the dead body was conducted, dead body was

sent for postmortem examination, wearing apparels of the

deceased as well as accused were also seized. After completion

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 2 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 of investigation, charge sheet was submitted against the

accused. While being treated at Bhawanipatna hospital when

the doctor saw the condition of the patient to be serious

recorded her dying declaration.

II. TRIAL COURT'S JUDGMENT:

3. Upon consideration of materials on record, the trial court

framed charge under Section 302 of the I.P.C. against the

Appellant Damarudhar Nial. The defence took the plea of

denial and false implication.

4. In order to prove the allegation, the prosecution examined as

many as 18 witnesses and placed reliance on the documents

marked Exts.1 to 13. No defence evidence, oral or

documentary, was adduced.

5. P.W. 1 is one police constable before home the I.O. had seized

the bed head ticket. P.W. 2 is another seizure witness who did

not support the factum of seizure. P.W.3 is the informant who

stated to have received the information while he was at

Sambalpur from his son Bhaktaram Jal. This witness further

stated that he found the victim being treated at Government

Hospital, Bhawanipatna and at the said hospital the victim

Sindhuka narrated that the present accused set-fire on her after

pouring kerosene. P.W.3 further stated that he was informed

by victim that when the victim was running here and there

Signature Not Verified pg. 3 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 inside the house, the fire from her body also had been caught

by the accused. P.W. 4, the son of the informant stated that on

26.2.2015 he heard from his aunt that on the previous day the

victim had sustained burn injury and then he went to District

Head Quarters Hospital, Bhawanipatna. When he asked

regarding the reasons of fire, the victim Sindhuka disclosed

that this accused who was the husband of the victim set fire on

her by pouring kerosene. After getting such information from

the victim, he made a telephone call to P.W.3 who

subsequently, lodged F.I.R. P.W.5 did not support the

prosecution case and was declared hostile. P.W. 6 is the person

before whom the wearing apparels of the deceased were

seized. P.W. 7 before whom inquest over the dead body was

prepared. P.W.8 did not support any seizure made by police

before him. P.W.9 simply heard the matter. P.W.10 was

present when police made inquest over the dead body. This

witness also happened to be a neighbour of the victim and the

accused. He specifically stated that the accused and the victim

were not pulling on well and quarreling frequently. This

witness is the brother of the accused and further admitted that

there was some property related dispute with the accused.

P.W.11 is the police Havildar before whom wearing apparels

of the deceased were seized. P.W.12 did not support the

prosecution case. P.W.13 only heard the matter. P.W.14 is the

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 4 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 doctor who conducted postmortem examination over the dead

body. He stated to have found burn injury on the chest, both

eyes, face and head of the deceased. All injuries were ante-

mortem in nature and death was caused due to septicemia and

hypoglycemic shock due to burn. P.W.15 is the person before

whom the police seized the bed head ticket at District Head

Quarters Hospital, Bhawanipatna. P.W.16 is the Surgery

Specialist who recorded the dying declaration of the victim in

his own hand writing and proved the same in the court. His

evidence shows that the dying declaration was made in

presence of a staff nurse. P.W.17 is the staff nurse before whom

the dying declaration was made by the deceased. P.W.18 is the

investigating officer.

6. Placing reliance on the evidence of the family members of the

deceased i.e. P.Ws.3 and 4 stated to have been supported by

Ext.8 i.e. the dying declaration of Sindhuka recorded by the

Doctor P.W.16 before the staff nurse P.W.17 and other

incriminating circumstances, the trial court held the Appellant

guilty under Section 302 of the I.P.C. and sentenced him as

stated supra.

III. SUBMISSIONS ON BEHALF OF THE APPELLANT

7. In assailing the impugned judgment, learned Counsel

appearing for the Appellant submitted that there is no

Signature Not Verified pg. 5 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 occurrence witness nor prosecution could examine any

witness to show that on the alleged date, the accused by

pouring kerosene burnt Sindhuka and as such the prosecution

case falls in limeni. He further submitted that the independent

witnesses such as P.W.5 (Chhabi Nial) and P.W.12 (Purna

Chandra Nial) have not supported the prosecution case and

the seizure witness such as P.W.8 has also not supported the

factum of seizure out of 18 witnesses.

8. He further submitted that there is no other witness except the

informant Udhaba Jal and the dying declaration of the victim

implicating the Appellant as an accused in the alleged crime. It

was also submitted that the accused and the deceased were

maintaining happy conjugal life since the date of their

marriage, as per the deposition of P.W.2. The accused tried to

save his wife (deceased) from the fire as a result he was also

affected by the fire and also received some burn injuries and

consequently, he was also admitted in the Hospital.

9. It was further submitted that the trial court without going to

the evidence available on record proceeded on the basis of the

dying declaration of the victim recorded by the Doctor of the

Hospital. This is totally baseless and against the weight of the

evidence on record. Hence, the judgment of conviction and the

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 6 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 order of sentence passed by the learned Additional Sessions

Judge, Dharamgarh in the aforesaid case may be set aside.

IV. SUBMISSIONS ON BEHALF OF THE STATE

10.Per Contra, learned Counsel for the State vehemently

contended that the accused is found to be guilty of commission

of murder of his wife and punishable under Section 302 of the

I.P.C., as there is evidence that only the accused and the

deceased were staying in that house on the fateful day. He

further submitted that in any case, evidence of victim is the

best piece of evidence and ordinarily no victim would rope in

any innocent person to be the author of the crime leaving aside

the real culprit. Just after being admitted to hospital or at the

first meeting with her family member i.e. P.Ws.3 and 4, the

victim Sindhuka expressed before them that this accused

Dambarudhar Nial who was her husband was the real culprit.

Further, the statements of P.Ws.3 and 4 got supported by Ext.8

i.e. the dying declaration of Sindhuka recorded by Doctor

P.W.16 before the staff nurse P.W.17. Apart from that evidence

of the I.O. PW 18 shows that during inquiry when he visited

the spot i.e. the house of the accused, he found a jerrycan with

some kerosene in it which is exactly as per allegation of the

deceased that after pouring kerosene the accused set her

ablazed by match stick. In such view of the matter, he

Signature Not Verified pg. 7 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 submitted that there appears no cogent and reasonable ground

to interfere with the impugned judgment of conviction and

order of sentence rendered by the learned trial court.

V. COURT'S ANALYSIS AND REASONS:

11. In the present case, it is alleged that the deceased had married

to the accused about 14 years ago and the tragic incident of

alleged burning of the deceased occurred on 25.02.2015 by

pouring kerosene on her body and was ablazed by a

matchstick. P.W.4 informed to P.W.3 who is his brother. Upon

getting information, P.W.3 rushed to the hospital and found

her sister was under treatment at District Headquarters

Hospital, Bhawanipatna. The deceased prior to her death

informed P.W.3 that the present Appellant was the real culprit

who ignited the matchstick after pouring kerosene. The police

made inquest over the dead body of the deceased. The Doctor

P.W.14 conducted post-mortem examination over the dead

body of the deceased and submitted post-mortem report

which is marked as Ext.7. The Doctor found that there was

Dermo epidermal burn present on chest, below thigh, arm and

hand, abdomen and other parts of the body. It was further

reported that the burn injuries were ante-mortem in nature

and cause of death might be due to septicemia and

hypodermic shock caused by such burning.

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 8 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33

12. In the present case, vital evidence is presented through

P.Ws.16 and 17. P.W.16 is the Surgery Specialist of District

Head Quarters Hospital, Bhawanipatna. His evidence reflects

that on 02.03.20215 while the victim was under treatment, her

condition started getting deteriorated. Hence, he suspected

that the victim might not survive. He thought of recording

her dying declaration in presence of the witnesses and the

dying declaration was recorded in his own hand writing

which is marked as Ext.8. On perusal of the dying declaration,

it is evident that P.W.16 himself recorded the statement on

02.03.2015 at about 7.30 P.M. in the presence of a staff nurse

named Lilima Dash wherein it has been stated that "her

husband poured kerosene on her body and ignited by matchstick" for

which she was in burn. After recording of such statement, the

contents were also read over before the patient and she put her

L.T.I. on the said Ext.8. It is unambiguously clear that the

patient was in burning condition at the time of recording of

dying declaration and she strongly indicted against the

present Appellant who was her husband. Though the Doctor

(P.W.16) has not cross-examined by the prosecution, the

factum of his recording of dying declaration cannot be lost

sight of. The same fact has also been expressed before the

P.W.3 and 4 indicting her husband. Hence, there is no iota of

doubt that the deceased has been burnt by somebody else or

Signature Not Verified pg. 9 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 by some other person or under some other circumstances. It is

also the fact that the deceased and the accused were staying

together in a house and there was none who had witnessed the

occurrence. The statement made before P.Ws.3 and 4 also gets

enough strength from the dying declaration (Ext.8) recorded

by the doctor and the said fact has been recorded before a staff

nurse.

13. Further in the present case, the victim's statement is the best

piece of evidence. It is intriguing to note that why should the

victim will rope in an innocent person before her death. It is

also a fact that when the I.O. (P.W.18) visited the spot i.e. the

house of the accused, he found a jerrycane with some kerosene

which was found lying in the house which speaks volume

about the factum of death by burning. The argument on behalf

of the accused regarding the fact that the accused had also

received some burn injuries which might have caused for

saving the victim. Being a human being, the accused might

have got some emotional weakness to save the deceased after

she was ablazed by him. The fact of injuries on his head cannot

erase the blameworthiness of the accused. The argument by

the defence on the issue of mens rea or intention of

commission of the crime does not hold water in the present

case. Further, the deceased and the accused had quarreled on

the previous night since the present Appellant was suspecting Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 10 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 her character and torturing her. These facts also strongly

linked to an inescapable conclusion that the Appellant had

great role in setting the fire ablazed on her. In addition, P.W.10

who is a neighbor of the Appellant has also stated that the

accused and the deceased were not pulling well and were

quarrelling very frequently that is a pointer to his indictment.

Differences between them has been on its zenith leading to

such a heinous crime by the accused which demonstrates his

brutal instinct while committing the crime.

14. In the result, the prosecution has successfully proved the case

beyond reasonable doubt and held that the accused/ Appellant

on the fateful day i.e. on 25.02.2015 while the quarrel between

them was in its ascendency, the Appellant set the deceased on

fire by pouring kerosene. Hence, the finding of the trial court

against the present Appellant with regard to the commission

of offence under Section 302 of the I.P.C. is not erroneous.

Learned Additional Sessions Judge, Dharamgarh while

hearing the rival submission on the issue of sentence has not

shown any leniency to the victim and accordingly, sentenced

the Appellant to undergo imprisonment for life and to pay fine

of Rs.10,000/- failing to pay the fine, he will undergo R.I. for

one year more under Section 302 of the I.P.C.

Signature Not Verified pg. 11 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33

15. Accordingly, we do not find any fault with the conclusion

arrived at by the learned Additional Sessions Judge,

Dharamgarh vide judgment and order dated 18.08.2018 passed

in Criminal Trial (Sessions) No.02 of 2016. Therefore, we

confirm the judgment of conviction and order of sentence

dated 18.08.2018 passed by the learned Additional Sessions

Judge, Dharamgarh in Criminal Trial (Sessions) No.02 of 2016.

16. Accordingly, this Appeal is dismissed.

( Dr. S.K. Panigrahi ) Judge

D. Dash, J. I agree.

( D. Dash ) Judge

Orissa High Court, Cuttack, Dated the 17th May, 2023/ B. Jhankar

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 12 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33