Orissa High Court
Nepal Samadhar vs State Of Orissa on 1 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.718 of 2012
In the matter of an Appeal under Section 374 of the Code of
Criminal Procedure, 1973 and from the judgment of conviction
and the order of sentence dated 22ND November, 2012 passed by
the learned Additional Sessions Judge, Malkangiri, in Criminal
Trial No.82 of 2012.
----
Nepal Samadhar .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.J.K. Panda
(Advocate)
For Respondent - Mr.S.N. Das,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G. SATAPATHY
Date of Hearing : 06.10.2023 : Date of Judgment : 01.11.2023
D.Dash,J. The Appellant, by filing this Appeal, has called in
question the judgment of conviction and the order of sentence
dated 22nd November, 2012 passed by the learned Additional
Sessions Judge, Malkangiri, in Criminal Trial No.82 of 2012
arising out of G.R. Case No.67 of 2012 corresponding to
CRLA No.718 of 2012
Kaliamela P.S. Case No.32 of 2012 of the Court of the Judicial
Magistrate First Class (J.M.F.C.), M.V.79.
The Appellant (accused) thereunder has been convicted for
committing the offence under section 302 of the Indian Penal
Code, 1860 (for short, 'the IPC'). Accordingly, he has been
sentenced to undergo imprisonment for life and pay fine of
Rs.2,000/- (Rupees Two Thousand) in default to undergo rigorous
imprisonment for six (6) months for commission of the said
offence.
2. Prosecution Case:-
Accused had married Seema Samadhar, who is the sister of
Nikhil Sarkar (informant-P.W.6) some time in the year 2000. After
some days of marriage, there had arisen dissention between them
because of establishment of extra marital relationship between
the accused with his elder sister-in-law. All the relations of the
village and villagers were aware about this development and for
that, frequently quarrel was taking place between the accused
and his wife Seema.
It is alleged that on 01.05.2012, accused throttled his wife
Seema to death. The information to that effect, having been
received by the brother of Seema, namely, Nikhil Sarkar (P.W.6),
he proceeded to the house of his sister and found her lying dead.
CRLA No.718 of 2012
Nikhil Sarkar (informant-P.W.6), the brother of Seema
(deceased) lodged a written report being scribed by one Tusar
Sarkar (P.W.5) with the Sub-Inspector (S.I.) of Police (P.W.10)
working at Potteru Police Out Post under the jurisdiction of
Kalimela P.S. On receiving the same, P.W.10 sent the same to the
Inspector-in-Charge (IIC), Kalimela P.S for registration of the
case. The IIC receiving the said report from P.W.10, treated the
same as the FIR (Ext.4) and upon registration of the case, directed
him (P.W.10) to take up investigation.
3. The Investigating Officer (I.O.-P.W.10) immediately
recorded the statement of the informant (P.W.6). The I.O. (P.W.6)
then visited the spot. He too held inquest over the dead body of
the deceased and prepared the report to that effect (Ext.1) in
presence of other witnesses. The dead body of the deceased was
sent for postmortem examination by issuing necessary
requisition. The wearing apparels of the deceased have been
seized by the I.O. (P.W.10) under seizure list (Ext.2) on
02.05.2.012, P.W.10 arrested the accused and sent him for his
medical examination. The seized incriminating articles were sent
for chemical examination through Court. On completion of the
investigation, the I.O. (P.W.6) submitted the Final Form placing
this accused to face the Trial for commission of the offence under
section 302 of the IPC.
CRLA No.718 of 2012
4. Learned J.M.F.C., M.V.79, on receipt of the Final Form, took
cognizance of said offence 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 the accused.
5. In the Trial, the prosecution, in support of its case, has
examined in total eleven (11) witnesses. As already stated, the
informant, who had lodged the FIR (Ext.4) is P.W.6. The scribe of
the said FIR (Ext.4), has come as P.W.5 and P.W.4 is the co-
villager of P.W.6. P.Ws.1 & 2 are the co-villagers of the accused.
P.Ws.8 & 9 are the inquest and seizure. P.W.11 is the Doctor, who
had conducted the post mortem examination over the dead body
of the deceased whereas P.W.10 is the I.O.
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 10.
Important of those, are the FIR (Ext.4); inquest report (Ext.1); and
the post mortem report (Ext.10).
6. The accused has taken a plea of complete denial and false
implication. He, however, has not tendered any evidence in
support of said plea.
CRLA No.718 of 2012
7. The Trial Court, having gone through the evidence and
upon their scrutiny, has found this accused to be guilty for
commission of the offence under section 302 of the IPC in
intentionally causing the death of Karunakar. Accordingly, he has
been sentenced as afore-stated.
8. Mr. J.K. Panda, learned counsel for the Appellant (accused)
submitted that the entire conviction of the accused is based on the
testimony of P.Ws.3 & 4 before whom, as per the prosecution
case, the accused, after committing the offence, confessed the
crime. He further submitted that except the evidence of P.Ws.3 &
4 about that confession of the accused before them, no other
circumstance has even been shown pointing the finger of
accusation at this accused save and except, being stated that he
was not pulling on well with his wife Sima, which is not
forthcoming in evidence even from the lips of the brother of the
deceased, i.e., P.W.6 (Nikhil), who had lodged the FIR (Ext.4). He
further submitted that said evidence of P.Ws.3 & 4 as regards the
confession made before them by the accused also do not receive
any corroboration. He further submitted that the prosecution, in
the particular case, has not even proved the foundational facts so
as to claim that the burden of proof of the fact as to what
happened to the deceased-wife of the accused and how she died,
shifted on the shoulder of the accused, all those facts being within
CRLA No.718 of 2012
his special knowledge. He thus contended that the judgment of
conviction and order of sentence impugned in this Appeal are
liable to be set aside.
9. Mr.S.N.Das, learned Additional Standing Counsel for the
Respondent-State submitted that the prosecution case from the
beginning is the accused was not pulling on well with his wife for
his own fault and was frequently quarrelling with his wife in
defending his own wrong doings. He further submitted that since
the accused and the deceased-wife were residing together and the
death of the wife of the accused has taken place on account of
throttling, the accused having not come forward with any
explanation as regards such death of his wife Sima, the conviction
against the accused is well in order. He further submitted that the
evidence of P.Ws.3 & 4 with regard to confession of the accused
being wholly believable, with all the above evidence on record,
the Trial Court has rightly convicted the accused.
10. The death of the deceased has been proved to have taken
place on account of throttling, as has been deposed to by the
Doctor (P.W.11) conducting autopsy over the dead body of the
deceased. The finding of the Doctor (P.W.11) as has been deposed
and noted in the P.M. Report (Ext.10) appears to have not been
challenged. The Doctor (P.W.11), in his post mortem report
(Ext.10), has noted all such features suggestive of throttling and
CRLA No.718 of 2012
basing upon that, he has stated on oath that Seema's death was
homicidal. In view of such unchallenged testimony of the Doctor
(P.W.11), the prosecution is found to have established the fact that
Seema met a homicidal death.
11. The point for determination now stands as to who is
responsible for such throttling.
12. Admittedly, the accused is the husband of the deceased. The
death of the deceased having taken place in the house, we,
however, find that except these two above facets, the prosecution
has not tendered any other evidence to show that during the
relevant time or even the previous night, the accused was very
much present in the house with the deceased Seema. That being
not there in the evidence, it would not be permissible to say that
burden of proof of the fact as to how Seema was throttled leading
to her death shifted upon the shoulder of the accused by saying
that the prove circumstances are enough to conclude that all those
facts as to throttling of Seema were within the special knowledge
of the accused.
P.Ws.3 & 4 although have stated that the accused was
present when they arrived in the house where Seema was lying
dead, they are found to have not stated as to whether prior to such
incident, the accused was with the deceased in the house. Their
evidence is that the accused then being asked, told before them to
CRLA No.718 of 2012
have killed his wife Seema by throttling and the Trial Court
appears to have relied upon their version as regards such
confession of the accused in holding the accused to be guilty of the
crime.
P.W.3 has stated that when he went to the house of the
accused, he found Seema lying dead and the accused, being asked
confessed to have throttling Seema to death. This witness,
however, during cross-examination states to have never been
examined by the police in course of investigation.
It is the evidence of P.W.4 that when he proceeded to the
house of the accused and found Seema lying dead, the accused,
being asked, also admitted to have killed his wife by throttling by
a napkin when P.W.3 does not state about the user of napkin to
have been told to him by the accused and to that extent the so-
called version of the accused is varying.
P.W.3 does not state to have arrived at the house of the
accused with P.W.4 nor P.W.4 says to have arrived in the house
with P.W.3 and none even is saying to have seen each other. This
P.W.4 also states to have not been examined by police in course of
investigation.
P.W.6, who is the brother of the deceased when says to have
gone to the house of the accused after hearing about the death of
his wife, has stated to have no knowledge as to how his sister died.
The two witnesses (P.Ws.3 & 4) are not stating to have ever told
CRLA No.718 of 2012
about such confession made before them by the accused to P.W.6
or any other villager, which raises suspicion as regards confession
of the accused before them as such an important fact, how
remained undisclosed which no such other circumstance in
support of said silence comes to stand. P.W.6 is also not stating
about the dissention between his sister and the accused. He even
does not state to have seen the accused in his house where Seema
was lying dead when he arrived in the house. P.Ws.3 & 4, having
heard from the accused that he had killed his wife, have not
informed the matter at the P.S. P.Ws.3 & 4 also are not stating that
on their arrival in the house of the accused, the accused
volunteered in saying to have committed the crime. They also do
not state as to whether at that time, any other person was present
in the house of the accused. The conducts of P.Ws.3 & 4 thus
appear to be highly suspicious that having come to know about
the commission of the crime by the accused, have maintained the
silence in not divulging the same before anyone including before
P.W.6 runs against the normal conduct and the I.O. when arrived,
they state that they had never been examined by him in course of
investigation.
13. On the conspectus of the analysis of the evidence let in by
prosecution, we are of the view that the finding of the Trial Court
that the prosecution has established the charge against accused
CRLA No.718 of 2012
- 10 -
Nepal Samadhar beyond reasonable doubt by leading clear,
cogent and acceptable evidence cannot be sustained.
14. In the result, the Appeal stands allowed. The judgment of
conviction and the order of sentence dated 22ND November, 2012
passed by the learned Additional Sessions Judge, Malkangiri, in
Criminal Trial No.82 of 2012 are hereby set aside.
Since the accused (Nepal Samadhar) is on bail, his bail
bonds shall stand discharged.
(D. Dash),
Judge.
G. Satapathy, J. I Agree.
(G. Satapathy),
Judge.
Basu
Signature Not Verified
Digitally Signed
Signed by: BASUDEV NAYAK
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 02-Nov-2023 17:18:01
CRLA No.718 of 2012
