Orissa High Court
Reena Sahu vs State Of Odisha on 1 July, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.211 of 2023
In the matter of an Appeal under Section 374(2) of the Code
of Criminal Procedure, 1973 and from the judgment of conviction
and order of sentence dated 26th December, 2022 passed by the
learned Additional Sessions Judge, Padampur in C.T. Case No.28
of 2018.
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Reena Sahu .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr. Satyabrata Panda
(Advocate)
For Respondent - Mr.S.K. Nayak
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE V. NARASINGH
Date of Hearing : 24.04.2024 : Date of Judgment : 01.07.2024
D.Dash,J. The Appellant, by filing this Appeal, has called in question
the judgment of conviction and order of sentence dated 26th
December, 2022 passed by the learned Additional Sessions Judge,
Padampur in C.T. Case No.28 of 2018 arising out of G.R. Case
No.632 of 2017 corresponding to Jagdalpur P.S. Case No.94 of
2017 in the Court of the learned Sub-Divisional Judicial
Magistrate (S.D.J.M.), Padampur.
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, she has been
sentenced to undergo imprisonment for life and pay fine of
Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous
imprisonment for one (1) year for commission of the said offence.
2. PROSECUTION CASE:-
As it reveals from the First Information Report (F.I.R.-Ext.P-
1) lodged by Harman Barik, the Grama Rakhi (P.W.6) attached to
Jagdalpur Police Station (P.S.) with the Inspector-in-Charge of
Jagdalpur P.S. stating therein that on 28.08.2017 around 5.00 p.m.,
he got the information that first wife of Motilal Sahu, namely,
Padmini had been murdered by the present accused, who
happens to be the other wife of Motilal and that after committing
the murder, she had fled away. The Informant (P.W.6), getting
the information had been to the spot, i.e., the house of Motilal and
seen Padmini was lying dead on a cot with bleeding injury on her
right side neck near the ear had also seen an axe lying near there.
The incident, being informed to the Ward Member and other
villagers, he (P.W.6) came to know that there was dispute
between the accused and the deceased and the death had been
caused for the said reason and that the accused, having
committed the murder of Padmini, had left the house with her
infant daughter aged about one and half years.
On receipt of the above report, the I.I.C. (P.W.20) treated the
same as FIR (Ext.P-1) and upon registration of the criminal case,
took up the investigation.
3. The Investigating Officer (I.O.-P.W.20), in course of the
investigation, examined the informant (P.W.6) and recorded his
statement under section 161 Cr.P.C. He (P.W.20) proceeded to the
spot and examined the mother-in-law of the deceased, but count
not prepare the spot map as it was night. On the next day, i.e., on
29.08.2017, he (P.W.20) he, having again visited the spot,
prepared the spot map (Ext.P-16), held the inquest over the dead
body of Padmini and sent the same for post mortem examination
by issuing necessary requisition. A blood stained axe had been
seized by the I.O. (P.W.20) under seizure list (Ext.P-4) and the
blood soaked gauge, sample earth from the spot, blood stained
earth had been seized under Ext.P-3. On the day of arrest of this
accused, the I.O. (P.W.20) seized her wearing apparels under
seizure list (Ext.P-10) and she (accused) has been sent for her
medical examination. The seized incriminating articles were sent
for chemical examination through Court. On completion of the
investigation, the I.O. (P.W.20) submitted the Final Form placing
this accused to face the Trial for commission of the offence under
section 302 of the IPC.
4. Learned S.D.J.M., Padampur, 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 against this accused.
5. The prosecution, in support of its case, has examined in
total twenty (20) witnesses during trial out of twenty-three (23)
charge-sheeted witnesses. Out of them, as already stated, the
informant, who is the Grama Rakhi is P.W.6 whereas the scribe of
the FIR (Ext.1) is P.W.1. P.W.11 is the father-in-law of the
deceased and a seizure witness whereas P.Ws.13 & 19 are the
mother-in-law & uncle of the deceased. P.Ws.2, 4, 7, 8, 9 & 10 are
the witnesses to the inquest and out of them P.Ws.4 & 9 are also
the witnesses to the seizure. The person, before whom the
accused gave her statement, has been examined as P.W.12. P.W.5
is an independent witness and P.Ws.14, 16, 17 & 18 are the police
officials and witnesses to the seizure. The Doctor, who conducted
the autopsy over the dead body of Padmini has been examined as
P.W.15. The I.O. of the case, at the end, has appeared in the
witness box as P.W.20.
6. 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 17.
Out of those, the important are, the FIR (Ext.P-1), the spot map
(Ext.16), inquest report (Ext.P-2); the post mortem report (Ext.P-
13). The chemical examiner's report had been admitted in
evidence and marked Ext.C-1.
7. The accused has taken the plea of complete denial and false
implication. He, however, has not tendered any evidence in
support of said plea.
8. Mr.S. Panda, learned counsel for the Appellant (accused)
submitted that the prosecution case is not based on direct
evidence and for the purpose, the prosecution relies upon the
circumstantial evidence such as the motive and that Padmini
(deceased) was seen with the accused in the said house prior to
the incident. He further submitted that the evidence as regards
the motive is not that clear and cogent and also there is no such
acceptable evidence that this accused shortly before the incident
was very much present in the house where the deceased was
there and the husband of the present accused as also the deceased
having died some after the incident, the prosecution has not been
able to tender his evidence in the trial, which would have thrown
the light on that score. He further submitted that the evidence of
P.Ws.11 & 13, which have been relied upon by the Trial Court, are
wholly unacceptable and, therefore, basing upon their evidence,
according to him, the Trial Court has erred both on fact and law
in concluding that the prosecution has discharged the initial
burden of proof as regards the charge against the accused for
which the burden has shifted, which has been not said to have
dispelled. He submitted that the Trial Court ought not to have
taken the aid of section 106 of the Evidence Act in arriving at a
conclusion that since the accused has not provided any
explanation as to how all that happened to the deceased leading
to her death, which being within her special knowledge, she is
guilty of the offence under section 302 of the IPC. He submitted
that except the evidence of P.Ws.11 & 13, there is no other
corroborative evidence in providing support to the prosecution
case so as to base a finding of guilt upon the accused. It was also
submitted that the prosecution, in the case, has to share the blame
of not producing the evidence, which had been collected in
course of investigation and, therefore, adverse inference is bound
to be drawn against the prosecution case. In view of all these
above, he, urged for acquittal of this accused by setting aside the
judgment of conviction and order of sentence returned against
him.
9. Mr.S.K. Nayak, learned Additional Government Advocate
for the for the Respondent-State, while supporting the finding of
guilt against the accused, as has been returned by the Trial Court,
contended that it being the evidence of P.W.11 that his wife
(P.W.13) and this Appellant as well as the deceased, who are his
daughter-in-law reside there in the same house with his son-in-
law Motilal and also the infant child and the accused, the
incident, having happened at the time when P.W.11 was not there
in the house as also his son Motilal, this accused, having
provided, no explanation whatsoever as to what happened with
the deceased that she sustained such fatal injuries leading to her
death; the Trial Court has rightly held the accused guilty of
intentionally causing the death of Padmini with the aid of the
provisions of Section 106 of the Evidence Act since all those facts,
in the surrounding circumstances emanating from the evidence
were within the special knowledge of the accused. He further
submitted that that the absence of this accused at the time when
the Informant (P.W.6), the head of the family (P.W.11), i.e., the
father-in-law of the accused and other co-villager arrived is a
strong circumstance, which provide support to the guilty
intention of the accused and, therefore, when motive has also
been established through clear, cogent and acceptable evidence,
the Trial Court has rightly convicted this accused under section
302 of the IPC.
10. Keeping in view the submissions made, we have carefully
read the impugned judgment of conviction. We have also
extensively travelled through the depositions of the witnesses
(P.Ws.1 to P.W.20) and have perused the documents admitted in
evidence and marked as Ext.1 to Ext.17.
11. Admittedly, the deceased is the wife of Motilal and this
accused is the other wife of said Motilal. This accused then was
having a child on her lap. The prosecution has proved through
the evidence of the Doctor (P.W.15), who had conducted the
autopsy over the dead body of Padmini that Padmini (deceased)
had sustained spindle shaped incised wound presently obliquely
touching mastoid process of head over the right side of neck
facing downward and backward with muscles and blood vessels
clearly cut and also below that on the right side neck transversely
present showing muscles and blood vessels clearly cut and
another said wound on the middle portion of the right shoulder
vertically present and those have led to the death of Padmini. As
per the evidence of the Doctor (P.W.15), the injuries were ante
mortem in nature and the death was homicidal. He has also
stated that such injuries were possible by the axe (M.O.I) seized in
connection with the case and examined by him (P.W.20). In
addition to this, there stands the evidence of the I.O. (P.W.20),
who, during inquest, had noted all such injuries in the inquest
report (Ext.P-2) when other witnesses including P.Ws.11 & 13
have also stated to have seen the deceased with such injury. With
all such evidence remaining unchallenged, the prosecution is
found to have well established that Padmini met a homicidal
death. The dead body of Padmini as per the FIR (Ext.P-1) was
lying in the house of Motilal and that has also been stated by
P.W.1, P.W.6, P.W.11 and others including the I.O. (P.W.20).
The prosecution has examined P.W.2, who has stated to
have heard about the accused killing the deceased by means of an
axe when he has stated to have come to the house of Motilal and
saw the dead body of Padmini. He has also stated to have not
seen the accused in the said house and she was then absent. His
further evidence is that he had simply heard about the occurrence
from those but who is/are among those is not stated by this
P.W.2. His further evidence is that none of the family members of
the accused had clearly disclosed before him that there was any
quarrel between the deceased and the accused.
P.W.3 is a relation of the accused and the deceased. The
accused is the sister of the husband of her daughter. She has
stated that the accused had gone to her house in the Monday
evening. Her house is situated in Village-Bheunria whereas the
house of Motilal is in Village-Dhumabhata and in fact the I.O.
(P.W.20) says to have apprehended the accused when she was
staying in that house. Mere presence of the accused under the
circumstance cannot be an incriminating circumstance when
nothing further is stated by P.W.3 nor any other evidence is
forthcoming that when the accused left the house and in what
condition.
P.W.6 has stated that when he arrived in the house of
Motilal after hearing that there was a dispute in the village and
the accused had killed the deceased, none of the family members
of the accused nor the deceased were present there and she is
none other than P.W.6, the Grama Rakhi, who had lodged the FIR
(Ext.P-1), he does not state as to who had told him about the
incident.
P.W.7, being called by the police, had gone to the house of
Motilal and says to have found the dead body of Padmini lying
on a cot with an axe lying near there.
P.W.9 having stated to have not seen the accused when he
had gone to the house of Motilal and saw the dead body of the
deceased when has stated that in the house, the accused and the
deceased were present, the same makes out no meaning when on
the next moment, she has stated that the accused was not found
in the village on the day of occurrence, which too without giving
the approximate time, since when the accused was not found.
In the case, the important witness for the prosecution is
P.W.11. He is the father-in-law of the deceased and the accused.
He has stated that in his house, he, his wife, two daughter-in-
laws, son and one infant child of the accused were present on that
day. But, his evidence is that from morning hours, he had left the
house and returned home around 8/9 p.m. and that he heard
about the incident around 5.00 p.m. He does not state to have
seen the accused in the house or to have any information that the
accused was there in the house till when and when she was last
seen in the house. His evidence is that by the time he arrived at
home, police had arrived when he states that on enquiry, he came
to know that the accused had killed the deceased. It is also not
stated from whom he so heard. His specific evidence is that in the
night around 10/11 p.m., the accused was in the house of her
uncle situated at Village-Behunria although he has stated that the
accused and the deceased were quarrelling most of the times he,
however, has not cited any specific incident either on that day or
on previous days giving any such reason. The tangia (axe),
having been seized by the police and the accused after having
been apprehended, the I.O. (P.W.20) has not taken any step to
collect the fingerprint, if any, on the said tangia in ascertaining as
to whether those match with fingerprint of the accused so as to
stand as a strong incriminating circumstance.
Interestingly enough P.W.12 has stated that due to dispute
between the first wife and Motilal, his wife Padmini (deceased)
had left the company of Motilal and, therefore, Motilal had
married the present accused.
P.W.13 is the wife of P.W.4. She was not present in the
house and had gone to the field for plucking black gram and
returned only in the evening when the incident had taken place.
She of course has stated that the accused then was not present in
the house nor her child on her lap. Except the above evidence, we
find no further evidence on record to be there that the deceased,
shortly before the incident, was seen in the very house where
ultimately the dead body of Padmini was found lying on a cot
with bleeding injuries.
When the above is the evidence let in by the prosecution, it
is very interesting to note that the I.O. (P.W.20) has stated as
follows:-
"... My investigation further reveals that on the day of
occurrence, i.e., on 28.08.2017 morning, father-in-law
Usatram Sahu had been to Rajendrapur for some work.
Mother-in-law Sobhadra Sahu went to cultivable land.
Husband Motilal Sahu went to graze his ox and
accused Reena Sahu and her breast feeding child and
the deceased were in the house. The accused asked for
money to deceased to purchase household articles but
she did not give her for which there was quarrel
between them. Thereafter, the deceased went for
bathing and accused prepared lunch. After sometime
deceased came back to house after getting bath and
took food herself. She went to dry the moong outside
but return back due to rain and then went to sleep on
the cot lying on the verandah. In the meantime, the
accused was in angry mood and decided to take
revenge on the deceased. At about 12.15 p.m, taking
opportunity of absence of all family members in the
house, she took axe which was lying on the verandah
and dealt successive blows on the person of the
deceased. Thereafter, she fled away along with her
breast feeding child towards Village-Behunria."
When this I.O. (P.W.20) states that his investigation
revealed all those facts, he does not state that from which source,
he collected these informations or from whom, he could ascertain
all those facts. But then none of them have either been named nor
brought to the witness box to say all those facts.
Thus, taking an overall view over the evidence, we do not
find the prosecution to have established beyond reasonable doubt
that shortly before the detection of the dead body of Padmini in
the house of Motilal, this accused was very much present. No
witness has come forward to state that he/she heard any hullah at
any time on that day in the house of Motilal. No villagers has also
been examined to state that they had seen the deceased leaving
the house and proceeding towards Village-Behunria. The
presence of the accused in her relation's place inVilalge-Behunria
is not that a circumstance to point the finger of guilt at the
accused when no further evidence as to her leaving the house
giving approximate timing is forthcoming. The prosecution has
not been able to lead the evidence by examining that someone
that sometime after the incident, the accused left the house. The
only other circumstance remains is the detection of blood of
human origin on the wearing apparels of the accused but then of
the same has, however, not been ascertained as during the time of
chemical examination, it was no so possible. The evidence of
P.W.1 that he had stated before the police about the accused and
the deceased together in their house and that when the deceased
was with the accused, she had given a blow on her by means of
the axe cannot be taken as the substantive evidence when he does
not state the said fact to have been seen by herself nor she states
as to how he had so said before the police.
With such evidence on record, we are not in a position to
accept the view of the Trial Court that the prosecution has
discharged the initial burden of proof that it has sifted upon the
accused to dislodge by providing acceptable explanations.
12. In the result, the Appeal is allowed. The judgment of
conviction and order of sentence dated 26th December, 2022
passed by the learned Additional Sessions Judge, Padampur in
C.T. Case No.28 of 2018, are hereby set aside.
Since the Appellant (accused), namely, Reena Sahu is on
bail, her bail bonds shall stand discharged.
(D. Dash),
Judge.
V. Narasingh, J. I Agree.
Judge.
HIGH COURT OF ORISSA : CUTTACK
Date: 04-Jul-2024 14:56:15
