Kalpana Nauri vs State Of Orissa
2023 Latest Caselaw 11847 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                           JCRLA No.90 of 2012

          In the matter of an Appeal under Section 383 of the Code of
    Criminal Procedure, 1973 and from the judgment of conviction
    and order of sentence dated 16th October, 2012 passed by the
    learned Additional Sessions Judge, Champua, in S.T. Case No.36
    of 2012.
                                      ----

         Kalpana Nauri                       ....        Appellant

                                  -versus-

         State of Orissa                     ....        Respondent

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

                 For Appellant    -      Mr.Biswajit Nayak
                                         (Advocate as Amicus Curiae)

                 For Respondent -        Mr.P.K.Mohanty,
                                         Additional Standing Counsel
    CORAM:
    MR. JUSTICE D.DASH
    MR. JUSTICE A.C.BEHERA

   Date of Hearing : 14.09.2023       : Date of Judgment:03.10.2023

D.Dash,J. The Appellant, by filing this Appeal from inside the Jail, has

called in question the judgment of conviction and order of

sentence dated 16th October, 2012 passed by the learned

Additional Sessions Judge, Champua, in S.T. Case No.36 of 2012

arising out of G.R. Case No.153 of 2011 corresponding to

JCRLA No.90 of 2012 {{ 2 }}

Champua P.S. Case No.67 of 2011 in the Court of the learned Sub-

Divisional Judicial Magistrate (S.D.J.M.), Champua.

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.500/- (Rupees Five Hundred) in default to undergo simple

imprisonment for one (1) month.

2. PROSECUTION CASE:-

One Sanjay Sunari (informant-P.W.1) lodged a written

report (Ext.1) with the Inspector-In-Charge (IIC) of Champua

Police Station (P.S.) stating therein that after the death of his own

sister, who is wife of Suresh Nauri, his brother-in-law (Suresh

Nauri) had married the accused for the second time and from that

wedlock, three children had been born. The daughter, namely,

Pinky, born through the wedlock of his sister with the brother-in-

law, was residing with the accused and she was always being

physically tortured. It was stated that when Pinky, after coming

from the field by completing the work there and finishing the

cooking, was sleeping in a cot in the house, the accused,

sprinkling kerosene upon her, set her ablaze and for that, Pinky

came out of the house by shouting. But the accused remained

inside the house without making any attempt to save her. Pinky

JCRLA No.90 of 2012 {{ 3 }}

ultimately died due to such burn injuries. It was stated that

before her death, Pinky had disclosed about the happenings to

one Manugli Dhibar (P.W.2).

The IIC (P.W.10), receiving the written report, treated the

same as FIR and registering the case, took up investigation.

The Investigating Officer (I.O.-P.W.10), in course of the

investigation, examined the informant (P.W.1) and also P.W.2

before whom the deceased, before her death, had declared that

she was set ablaze by the accused. He also held inquest over the

dead body of the deceased at S.D. Hospital, Champua where

Pinky (deceased) had been shifted and prepared the report (Ext.2)

in presence of the witnesses. The dead body of Pinky was sent for

post mortem examination by issuing necessary requisition. Some

incriminating articles were seized from the spot and the I.O.

(P.W.10) also prepared the spot map (Ext.11) after vising the spot.

Few other co-villagers have been examined in course of

investigation and seized incriminating articles were sent for

chemical examination through Court. On 16.8.2011, the

investigation of the case was handed over to another Sub-

Inspector of Police of that P.S., who, on completion of

investigation, submitted the Final Form placing the accused

person to face the Trial for commission of the offence under

section 302 of the IPC.

JCRLA No.90 of 2012 {{ 4 }}

3. Learned S.D.J.M., Champua, on receipt of the Final Form,

took cognizance of the said offence and after observing the

formalities, committed the case to the Court of Sessions for Trial.

That is how the Trial commenced by framing the charge for the

aforesaid offence the accused.

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

total ten (10) witnesses during Trial. As already stated, P.W.1 is

the informant and P.Ws.2 & 4 are the witnesses before whom the

deceased (Pinky) was said to have disclosed as to how she

received the burn injuries. When P.W.3 is a witness to the inquest,

P.Ws.5, 6 & 7 are the witnesses to the seizures. The Doctor, who

had conducted the post mortem examination over the dead body

of the deceased is P.W.9 and the Doctor, who, at the request of the

I.O. collected the nail clippings of the accused is P.W.9. The I.O.

has finally come to the witness box as P.W.10.

5. 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 14.

Out of those, the important are, the FIR (Ext.1), the inquest report

(Ext.2) and the post mortem report (Ext.7).

JCRLA No.90 of 2012 {{ 5 }}

6. The accused has taken the plea of complete denial and false

implication. She too has examined herself as D.W.1 in support of

said defence.

7. Learned counsel for the Appellant (accused), without

disputing that the death of Pinky was on account of burn injuries

received by her, submitted that with the available evidence on

record, the Trial Court ought not to have held that it was the

accused, who had set the deceased ablaze. He further submitted

that the declaration, said to have been made by the deceased

before the witnesses (P.Ws.2 & 4) as regards the happenings on

her, cannot be accepted and the evidence of P.Ws.3 & 4 on that

score on proper scrutiny would be found to be unsafe to be relied

upon. He further submitted that the Trial Court is not right in

pointing out the circumstances and then taking a view that those

being cumulatively viewed and taken into account, the irresistible

conclusion comes that it is the accused, who is the perpetrator of

the crime and none-else. According to him, the circumstances are

not at all incriminating and do not point the finger of accusation

at the accused and, therefore, they being taken together, do not

complete the chain of event leading to an irresistible conclusion

that it was the accused, who was the author of the crime,

overruling all the hypothesis other than the guilt of the accused

cannot arise.

JCRLA No.90 of 2012 {{ 6 }}

8. Learned Additional Standing Counsel for the Respondent-

State submitted all in favour of the finding of guilt against the

accused, as has been returned by the Trial Court. According to

him, the deceased, while in house, having been set fire when

immediately on arrival, had disclosed about the said incident,

which have been proved through the witnesses (P.Ws.2 & 4)

examined from the side of the prosecution and when it is also

their evidence that the accused, at that time, was in the house and

had not taken any step to save the life of the deceased, the Trial

Court is absolutely right in convicting the accused.

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

read the impugned judgment of conviction. We have also gone

through the depositions of the witnesses (P.Ws1 to 10) and have

perused the documents, which have been admitted in evidence

and marked Exts.1 to 14.

10. The death of Pinky is on account of severe burn injuries, has

been established through the evidence of the Doctor (P.W.8), who

had conducted the autopsy over the dead body of Pinky, the I.O.

(P.W.10) and other witnesses, who had seen Pinky with such

burn injuries on her person and the reports prepared to that

effect.

JCRLA No.90 of 2012 {{ 7 }}

The question arises as to how Pinky received such burn

injuries and who is the culprit.

The informant (P.W.1), who is the maternal uncle of the

deceased, has stated to have been told about the occurrence by

Manguli Dhibar (P.W.2). It is his evidence that by the time he

reached the Hospital, his niece was no more alive. It is his

evidence that in the Hospital, when he asked Manguli (P.W.2), he

told that the accused to have set the deceased to fire. So, what it

appears P.W.2 is the star witness for the prosecution. Her

evidence is that when she was returning home, she saw Pinky

coming out of the house in a state of burning and, therefore, she

raised shout when other villagers also arrived there. Her further

evidence is that he enquired from Pinky as to how it all happened

and Pinky, who was then able to talk, disclosed that the accused

set her to fire pouring kerosene when she was sleeping in the

bed-room. The evidence of this P.W.2 is also to the effect that the

accused was very much present at home at that point of time.

This P.W.2, having seen the deceased coming out of the house in

a burning condition, when raised hullah, the villagers arrived and

it is her evidence that one Manguni Dhibar was very much

present among them. It is also stated by this P.W.2 that he had

intimated all about the matter to the informant (P.W.1). Manguni

Dhibar has been examined as P.W.4. It is his evidence that after

JCRLA No.90 of 2012 {{ 8 }}

seeing the deceased moving in the courtyard in a burning

condition, he had rushed to the place and then he states that the

deceased did not tell anything to him as to how she caught fire on

her body. Thus, we find that the evidence of P.W.2 that the

deceased had disclosed before them that it was the accused, who

had set her ablaze is not corroborated by the evidence of

Manguni (P.W.4), who according to P.W.2 was very much

present by the side of the deceased from the time when P.W.2 had

come there. The evidence of P.W.2 is, however, quite acceptable

to the extent that she had seen the deceased coming out of the

house in a burning condition. So, for that reason, the evidence on

record has to be examined as to who was/were the other

member/s then in the house when the deceased came out in a

burning condition. P.W.2 when says that the accused was present

in the house; P.W.4 is not stating so. He has rather stated that the

father of the deceased had taken the deceased to the Hospital.

The evidence of P.W.4, however, is not clear that the father of the

deceased was there inside the house. But, this P.W.4 has stated

that one of the brothers of the accused was staying in the house of

the accused person. So, even accepting the evidence of P.W.2 that

the accused was there in the house at the relevant time, the

brother of the accused was also present, as has been stated by her.

As per the evidence of P.W.2, the deceased was able to talk till

JCRLA No.90 of 2012 {{ 9 }}

she reached the Hospital, we find that no other witness has come

to depose as to whether the deceased had also disclosed about the

happenings on her before them during that period till she arrived

in the Hospital.

With the above discussed evidence, we too find that when it

is the consistent case of the prosecution that the deceased after

having been sprinkled with kerosene, had set her ablaze. The

Doctor's report (Ext.7) does not find mention of emission of smell

of kerosene from those burn injuries noticed by him.

Having gone through the circumstances, as noted by the

Trial Court in its judgment at Paragraph-7, when we are not in a

position to accept the evidence let in by the prosecution that the

deceased had disclosed about the said happenings after P.Ws.2 &

4 came to her rescue when she was found in a burning condition

in the courtyard of the house as to who did so; the other

circumstances, in our view, are not incriminating as against this

accused. So, we are of the considered view that the prosecution

has failed to establish the charge against the accused beyond

reasonable doubt through clear, cogent and acceptable evidence.

11. In the result, the Appeals is allowed. The judgment of

conviction and order of sentence dated 16th October, 2012 passed

by the learned Additional Sessions Judge, Champua, in S.T. Case

No.36 of 2012 are hereby set aside.

JCRLA No.90 of 2012 {{ 10 }}

Since the Appellant, namely, Kalpana Nauri is in custody,

she be set at liberty forthwith, if her detention is not wanted in

connection with any other case.

(D. Dash), Judge.

A.C. Behera, J. I Agree.

(A.C.Behera), Judge.

Basu

Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 06-Oct-2023 10:34:26

JCRLA No.90 of 2012