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2014 DIGILAW 612 (ORI)

State of Orissa v. Sk. Himat

2014-09-22

S.K.SAHOO, VINOD PRASAD

body2014
Judgment S.K.SAHOO, J. The respondents Sk. Himat, Taslima Bibi, Noorjan Bibi, Sk. Das Mahammad and Sk. Roj Mahammad faced trial under section 498(A)/34 I.P.C. and section 302/34 I.P.C. in the court of learned Additional Sessions Judge, Bhadrak in Sessions Trial No.23/80 of 1996 on the charge of subjecting Tara Bibi (hereafter “the deceased”) to cruelty and also committing her murder in furtherance of their common intention. The learned trial Court vide judgment and order dated 29.4.1998 acquitted all the respondents of all the charges. Hence this Government Appeal. 2. The prosecution case, in short, is that the respondent no.5 Sk. Roj Mahammad married the deceased about ten years prior to the date of occurrence and they were blessed with four children, out of whom two were alive and two died. The respondent no.3 Noorjan Bibi is the mother-in-law of the deceased. Respondent no.3 had married to one Sk. Arju Hossain, who is the natural father of respondent no.5. After death of Sk. Arju Hossain, respondent no.3 married to respondent no.1 Sk. Himat. Respondent no.2 Taslima Bibi is the married sister-in-law and respondent no.4 Sk. Das Mahammad is the brother-in-law of the deceased. It is the further prosecution case that while the deceased was staying in her in-laws’ house, she was subjected to physical and mental torture in connection with demand of dowry and there was attempt for settlement of the dispute between the parties. On 21.9.1990 P.W.6 Sk. Rajak, brother of the deceased received information from P.W.3 Atta Khan that the respondents were assaulting the deceased. Hearing such fact, P.W.6 along with his brother Sk. Rasid (P.W.5) proceeded to the house of the respondents situated in village Bishnupur Bindha under Bhadrak (Rural) Police Station and found the entrance door of the house of the respondents half opened. Both P.W.5 and P.W.6 noticed that the deceased was crying and there was bleeding from her nose. The respondents drove out P.W.5 and P.W.6 from their house and closed the door from inside. P.W.5 and P.W.6 remained outside and heard the shout of the deceased. They called Grama Rakhi Sk. Safee who came to the house of the respondents but found the deceased lying dead and accordingly intimated it to P.W.5 and P.W.6. On 22.9.1990 on the written report of the Grama Rakhi Sk. P.W.5 and P.W.6 remained outside and heard the shout of the deceased. They called Grama Rakhi Sk. Safee who came to the house of the respondents but found the deceased lying dead and accordingly intimated it to P.W.5 and P.W.6. On 22.9.1990 on the written report of the Grama Rakhi Sk. Safee, Bhadrak (Rural) P.S. U.D. Case No.39 of 1990 was registered by P.W.8 Jayant Kumar Tripathy, who was by then attached to Bhadrak (Rural) Police station as Officer-in-Charge. It was reported by the Grama Rakhi that on 21.9.1990 at about 10.30 p.m. the deceased had committed suicide probably by consuming poison. After registering the U.D. case, P.W.8 directed A.S.I. Sri U.N. Pani to enquire into the case. Sri Pani conducted inquest over the dead body of the deceased on 22.9.1990 at 5.00 p.m. on the verandah of the house of respondent no.5 vide Ext.1. He also sent the dead body for Post-mortem examination to the District Headquarters Hospital, Bhadrak. P.W.7 Dr. Satyabhama Behera who was the Assistant Surgeon attached to the said hospital conducted the Post-mortem examination on 23.9.1990 and she noticed a lacerated injury on the left lower lip, a contusion over left anterior left chest wall, contusion over epigastrium and right hypochondrium and opined all the injuries to be ante mortem in nature. She further found the liver of the deceased was lacerated on the interior surface and opined the cause of death due to shock and haemorrhage on account of rupture of liver due to external injury on the abdomen and chest. The Post-mortem report was marked as Ext.5. Sri Pani sent the viscera of the deceased to S.F.L., Rasulgarh for chemical analysis and the viscera report (Ext.9) indicates that no common insecticidal, alkaloidal and metallic poison could be detected in the viscera. Sri Pani also seized the wearing apparels of the deceased vide seizure list (Ext.2). Sri Pani made a query from the Department of F.M.T., S.C.B. Medical College and Hospital, Cuttack regarding final opinion as to cause of death of the deceased and perusing the copy of the inquest report, dead body challan and Post-mortem report, it was opined by the Professor and Head of the Department of F.M.T. that due to direct assault on the deceased, there was rupture of liver and the death was homicidal. The opinion of the Professor and Head of Department, F.M.T. has been marked as Ext.10. The opinion of the Professor and Head of Department, F.M.T. has been marked as Ext.10. On receipt of the opinion vide Ext.10 on 12.01.1991 P.W.8 registered Bhadrak (Rural) P.S. Cased No.7 of 1991 on his own information under section 302 I.P.C. against unknown persons. The F.I.R. has been marked as Ext.12. P.W.8 visited the spot and prepared the spot map (Ext.11). He examined the witnesses and on 1.5.1991 he handed over the charge of investigation to S.I. Sri Dilip Kumar Das of Bhadrak (Rural) Police Station. P.W.9 Prafulla Kumar Mohanty took the charge of investigation from Sri Dillip Kumar Das and ultimately on completion of investigation submitted Final Report in the case indicating “the case as true but no clue” as per the order of the Superintendent of Police, Bhadrak. P.W.6 Sk. Rajak who is the brother of the deceased filed a complaint petition in the court of S.D.J.M., Bhadrak on 18.12.1990 as the police did not take any proper action in the case and the said case was registered as C.C. No.401 of 1990. The S.D.J.M. sent the complaint petition to the O.I.C., Bhadrak (Rural) Police Station for investigation under section 156 (3) Cr.P.C. Since the I.O. had registered Bhadrak (Rural) P.S. Case No.7 of 1991 on 12.1.1991 on his own information by the time of receipt of the complaint petition through court, he returned the complaint petition to the court of S.D.J.M., Bhadrak which was tagged with G.R. Case No.50 of 1991 arising out of Bhadrak (Rural) P.S. Case No.7 of 1991. When Final Report was submitted by the I.O. in Bhadrak (Rural) P.S. Case No.7 of 1991, a protest petition was filed by P.W.6 Sk. Rajak on receipt of the notice from the court of S.D.J.M., Bhadrak. The S.D.J.M. examined some more witnesses and recorded their statements under section 164 Cr.P.C. and ultimately vide order dated 24.9.1994 took cognizance of offences under sections 302/498(A)/34 I.P.C. and issued process against the respondents. 3. During course of trial, the prosecution examined nine witnesses. P.W.1 Sk. Nasim was a co-villager of the respondents who saw the dead body of the deceased lying in the house of respondent no.5. P.W.2 Sk. Ramjan is a witness to the inquest vide Ext.1 and also to the seizure of the wearing apparels of the deceased vide Ext.2. 3. During course of trial, the prosecution examined nine witnesses. P.W.1 Sk. Nasim was a co-villager of the respondents who saw the dead body of the deceased lying in the house of respondent no.5. P.W.2 Sk. Ramjan is a witness to the inquest vide Ext.1 and also to the seizure of the wearing apparels of the deceased vide Ext.2. P.W.3 Atta Khan stated to have seen the respondent no.5 and his other family members assaulting the deceased by fist blows and slaps and accordingly he intimated the same to P.W.6. P.W.4 Naba Kishore Rana did not support the prosecution case and he was declared hostile. P.W.5 and his cousin brother P.W.6 stated to have proceeded to the village of the respondents on receipt of information from P.W.3 and stated in detail as to what happened after their arrival in the house of the respondents. P.W.7 Dr. Satyabhama Behera conducted the Post-mortem examination and proved her report (Ext.5). P.W.8 and P.W.9 are the Investigating Officers. The defence plea was one of denial and it was pleaded by respondent no.1 that his house situates at a distance of one mile away from the house of respondent no.5 and he has been falsely entangled in the case. From the side of the respondents, one witness namely Subash Chandra Mallik, who was an Advocate’s Clerk in Bhadrak Court was examined as D.W.1 and he stated to have scribed the complaint petition on the instruction of P.W.6 and proved the complaint petition as Ext.A. 4. The learned trial Court analyzed the evidence adduced by both the sides and came to hold that the prosecution has put forth two different stories. Though from the evidence of P.W.1 and P.W.4 it was established that the deceased died by taking poison in the house of the respondents, the evidence of P.W.3 coupled with the evidence of P.W.5 and P.W.6 indicated that there was assault on the deceased, for which she died. The prosecution case as advanced during trial was not reflected in the complaint petition vide Ext.A. The learned trial Court further held that while the complaint petition (Ext.A) indicates that the deceased died in the house of respondent no.5, P.W.3, P.W.5 and P.W.6 while deposing in court posed themselves as witnesses to the occurrence of assault on the deceased by the respondents. The learned trial Court further held that the prosecution has not examined the material witnesses like Grama Rakhi Sk. Safee or any independent witnesses to corroborate the evidence of P.W.5 and P.W.6. The inquest report (Ext.1) does not mention about any foul play on the death of the deceased. The learned trial Court finally held that though the deceased met with a homicidal death but the culpability of the respondents has not been established beyond reasonable doubt. 5. Learned counsel for the State Mr. Sk. Zafarulla, Addl. Standing Counsel vehemently argued that the conclusions arrived at by the learned trial Court are not reasonably possible and the findings are quite unreasonable which are contrary to the evidence on record. The learned counsel contended that when there was no dispute that the deceased was staying in the house of respondent no.5 at the time of her death and the doctor conducting Postmortem examination not only found external injuries on the person of the deceased, but also opined her cause of death to be homicidal and due to shock and haemorrhage resulting in rupture of liver and the respondents having failed to discharge their burden of proof as required under section 106 of the Evidence Act to show as to how the deceased died, the order of acquittal should be set aside. The learned counsel for the State further submitted that the evidence of the eye witnesses P.W.3, P.W.5 and P.W.6 are very convincing which is corroborated by the post-mortem report (Ext.5) and merely because there was improper investigation in the case, the learned trial Court was not justified in acquitting all the respondents, particularly when there was clinching evidence against respondent no.5. The learned counsels for respondent nos. 1 and 3 Mr. B.K. Ragada and respondent nos. 2, 4 and 5 Mr. M.A. Alli supported the impugned judgment and contended that the prosecution has changed its version from time to time and the story projected during trial is a concocted one and in view of the nature of evidence, it cannot be said that the view taken by the learned trial Court is perverse or that the conclusions are not possible. The learned counsels further submitted that it would not be proper to interfere with the order of acquittal passed in the year 1998 when the appellants faced the rigor of the proceedings for a long time. 6. The learned counsels further submitted that it would not be proper to interfere with the order of acquittal passed in the year 1998 when the appellants faced the rigor of the proceedings for a long time. 6. It is the settled principle of law as held in the case of Babu and others v. State of Uttar Pradesh reported in AIR 1983 SC 308 that in appeal against acquittal, even if two views are possible, the appellate court should not interfere with the conclusion arrived at by the trial Court unless the conclusions are not possible. If the finding reached by the trial Judge cannot be said to be unreasonable, the Appellate Court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on the record because the trial Judge has the advantage of seeing and hearing the witnesses and initial presumption of innocence in favour of the accused is not weakened by his acquittal. The Appellate Court, therefore, should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible on the evidences on the record, it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by it. In the case of Basappa v. State of Karnataka reported in (2014) 2 SCC (Cri) 497, it is held that the exercise of the power under section 378 Cr.P.C. by the court is to prevent failure of justice or miscarriage of justice. There is miscarriage of justice if an innocent person is convicted and if the guilty let scot-free. If the judgment of the trial Court is based on no material and it suffers from any legal infirmity in the sense that there was non-consideration or mis-appreciation of the evidence on record, only in such circumstances, reversal of acquittal by the High Court would be justified. In the case of Rohtash v. State of Haryana reported in (2012) 3 SCC (Cri) 287, it is held that only in exceptional cases where there are compelling circumstances and the judgment is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s conclusion bolsters the presumption of innocence. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s conclusion bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. Keeping the ratio laid down by the Hon’ble Supreme Court, let us analyze the evidence on record to find out as to whether the conclusions drawn by the trial Court is perverse and against weight of evidence or not, whether the view taken is reasonable and plausible or not, whether the findings of the trial Court is palpably wrong, manifestly erroneous or not. We are quite conscious of the fact that there is no limitation on the part of an appellate court to review the entire evidence upon which the order of acquittal has been passed and to come to its own conclusion and review the trial Court’s conclusion on both facts as well as law, but unless we are satisfied that there has been flagrant miscarriage of justice by pronouncing the order of acquittal substantially and compelling reasons are there to interfere with the conclusions arrived at by the trial Court, the finding of the acquittal should not be disturbed, we are not going to interfere with the same. Change of prosecution version 7. The prosecution case at the first instance was that the deceased committed suicide by consuming poison. Grama Rakhi Sk. Safee reported the matter before the O.I.C., Bhadrak (Rural) Police Station suspecting that the deceased had committed suicide by consuming poison. On the basis of such report, Bhadrak (Rural) P.S. U.D. Case No.39 of 1990 was instituted and inquest was conducted. At the time of inquest also, it was indicated in the column no.9 that the cause of death is not known. The doctor conducting the post-mortem examination also reserved the final opinion regarding the cause of death awaiting report of chemical examination of viscera. P.W.6 who filed the complaint case against the respondents in the Court of S.D.J.M., Bhadrak, for the first time mentioned in the complaint petition that the deceased was suspected to have been assaulted to death. The doctor conducting the post-mortem examination also reserved the final opinion regarding the cause of death awaiting report of chemical examination of viscera. P.W.6 who filed the complaint case against the respondents in the Court of S.D.J.M., Bhadrak, for the first time mentioned in the complaint petition that the deceased was suspected to have been assaulted to death. Only after receipt of the viscera report and final opinion regarding cause of death from the Professor and Head of Department, F.M.T., S.C.B. Medical College, Cuttack, the F.I.R. was registered after inordinate delay and witnesses came up during trial with a story that the respondents assaulted the deceased for which she died. This change of version is like the change of color of a caterpillar casts a serious reflection on the truthfulness of the prosecution case. Pre-varicating Statements/Non-examination of material witnesses 8. P.W.3 posed himself as a witness to the assault on the deceased and he has stated that he saw respondent no.5 and his other family members were assaulting the deceased by fist blows and slaps. He admits in the cross-examination that he cannot say who is Taslima Bibi (respondent no.2), Noorjan Bibi (respondent no.3), Sk.Himat (respondent no.1) and Das Mahammad (respondent no.4). He stated to have intimated about the occurrence only to P.W.6. He states that for the first time he visited the house of respondent no.5 on the date of occurrence after hearing shout but he has never entered inside the house of respondent no.5. P.W.6 though stated that he heard about the assault on the deceased from P.W.3 but in the complaint petition filed by him vide Ext.A, there is no whisper that either he heard about the occurrence from P.W.3 or that he and P.W.5 had been to the village of the respondents thereafter. P.W.3 has not implicated respondent nos.1 to 4 in the assault on the deceased. P.W. 5 and P.W.6 have not seen the assault on the deceased by any of the respondents, but they have stated that they heard the sound of assault on the deceased as well as her crying sound and accordingly intimated the Grama Rakhi. Admittedly the Grama Rakhi has not been examined in this case. Though P.W.5 and P.W.6 have stated that the accused persons did not allow them to enter inside the house but the presence of all the respondents at the time of occurrence is a doubtful feature. Admittedly the Grama Rakhi has not been examined in this case. Though P.W.5 and P.W.6 have stated that the accused persons did not allow them to enter inside the house but the presence of all the respondents at the time of occurrence is a doubtful feature. P.W.1 has stated that respondent nos.4 and 5 are separate for last 14 years and staying in separate mess and separate houses but they were living in one “Khanja”. He has further stated that the house of respondent no.1 situates at a distance of half a kilometer away from the house of respondent no.5 and the respondent no.1 was staying with his family in his house and he has no relationship with respondent no.5. P.W.1 has further stated that respondent no.2 who is the sister of respondent no.5 was married at village Sankarpur which is 15 Kms. away from the house of the respondent no.5 and she was staying at her husband’s place. P.W.1 has further stated that after the incident he had been to the house of respondent no.5 to see the deceased but he had not seen the respondent nos.1 to 4. In view of such evidence of P.W.1, the statements of P.W.5 and P.W.6 that all the respondents were present in the in-laws house of the deceased when they visited it on the date of occurrence cannot be accepted. P.W.3 is also silent about the presence of respondent nos.1 to 4. The doctor (P.W.7) conducting post-mortem examination noticed only three injuries on the person of the deceased out of which one is a lacerated wound and the rests are contusions. P.W.6 says that at about 11.00 p.m. they received information from P.W.3 about the assault on their sister at village Bishnupur and they proceeded to Bishnupur by foot. It is the prosecution case that the assault on the deceased had already started when P.W.3 was present in village Bishnupur. P.W.3 stated that seeing the incident of assault on the deceased, he returned to his village Saidabad and after meeting his family members, he proceeded to village Nanghamahal and informed the matter to P.W.6. In view of the number of injuries sustained by the deceased, it is difficult to accept that the deceased was further assaulted after the arrival of P.W.5 and P.W.6 from their village in the village of the respondents at Bishnupur. In view of the number of injuries sustained by the deceased, it is difficult to accept that the deceased was further assaulted after the arrival of P.W.5 and P.W.6 from their village in the village of the respondents at Bishnupur. The evidence on record indicates that village Bishnupur is a thickly populated village and there are houses near the spot. P.W.3 who belongs to a different village has stated that about 50 persons gathered near the house of respondent no.5 at the time of assault and there are 25 to 30 houses in between the house of Sk. Raj Mahammad and his sister’s house in village Bishnupur. No other persons from village Bishnupur has been examined to corroborate the evidence of P.W.3 regarding the assault on the deceased. Thus the prevaricated statements of the witnesses coupled with the non-examination of material witnesses create doubt about the authenticity of the prosecution case. Belated Disclosure 9. P.W.6 has stated that he reported the matter not only to the police but also to the higher police officials. No documentary evidence has been proved in that respect. P.Ws.3, 5 and 6 kept mum practically from the date of occurrence i.e., 21.09.1990 till the F.I.R. was lodged. The explanation which they have furnished for their belated disclosure is neither convincing nor acceptable and as such the possibility of concocting a case at a later stage cannot be ruled out. Sum Up 10. Thus, when the presence of respondent nos.1 to 4 at the spot is doubtful, when the evidence of P.W.3, P.W.5 and P.W.6 are not acceptable because of their delayed disclosure of the occurrence and when the prosecution has resorted to falsehood by first posing the death of the deceased to be a case of poisoning and subsequently changed its version to be a case of assault after receipt of the final opinion from the medical expert, it can be said that the prosecution case is very suspicious. The nature of evidence adduced by the prosecution is not sufficient to come to an irresistible conclusion that the respondents are the authors of the crime. The nature of evidence adduced by the prosecution is not sufficient to come to an irresistible conclusion that the respondents are the authors of the crime. Even though the post-mortem report indicates that it was a homicidal death and the cause of death is due to rupture of liver due to external injury on the abdomen and chest, but in absence of any specific material against any of the respondents, it cannot be definitely said that the prosecution has established its case beyond all reasonable doubt. The view taken by the learned trial Court appears to be reasonable and based on proper analysis of the evidence on record and the conclusions arrived at by the learned trial Court cannot be said to be perverse and in that view of the matter, it would not be proper to interfere with the order of acquittal which was passed in the year 1998 after a long gap of more than 16 years. 11. In view of the discussions made above, we hold that the impugned judgment and order of acquittal passed by the trial Court does not suffer from any infirmity or illegality. The conclusions drawn by the trial court is neither perverse nor against weight of evidence. The view taken by the trial court is reasonable and plausible and accordingly the impugned judgment and order of acquittal is upheld. The Government Appeal stands dismissed. It appears from record that in view of the warrant of arrest issued by this Court on 27.6.2014, the respondent no.1 was arrested and produced in the Court of learned District and Sessions Judge, Bhadrak on 27.7.2014 and remanded to jail custody and he is in custody since that day. The respondent no.1 is hereby directed to be released forthwith from jail custody if he is not required in any other case. It further appears that the respondent no.2 Taslima Bibi, respondent no.4 Sk. Das Mahammad and respondent no.5 Sk. Roj Mahammad have been released on bail by this Court vide order dated 28.7.2014. They are discharged from the liability of their bail bonds. Their personal bonds and the surety bonds stand cancelled. The non-bailable warrant of arrest issued by this Court on 27.6.2014 against respondent no.3 Noorjan Bibi is hereby recalled.