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2015 DIGILAW 286 (ORI)

Sani Kirsani v. State of Orissa

2015-04-25

S.K.SAHOO, VINOD PRASAD

body2015
JUDGMENT Vinod Prasad, J. Having been prosecuted and found guilty of murdering her husband, the present appellant Sani Kirsani was convicted for offence u/s 302 I.P.C. and sentenced to imprisonment for life by Additional Sessions Judge, Malkangiri in C.T. No. 15 of 2004, State of Orissa versus Sani Kirsani, vide impugned judgment and order dated 17.5.2006, from which decision this appeal emanates. 2. Background facts are gestated in a short narration: that both, the appellant wife Sani Kirsani and her husband Rama Kirsani, the deceased, as spouses, were residing in village Nandiniguda P.S. Orkel district Malkangiri. It is alleged that the deceased had gone to village Nuaguda and was sleeping by the road side in a tipsy condition near the house of one Bhubaneshwar Singh, when the appellant wife arrived there and asked him to accompany her to their residence. Lying of the deceased in a sloshed condition was also informed by Damburu Jadia, husband of Mula Jhadia/ PW4, to her who is the sole eye witness to the present incident. Since the accused was not listening to her, the appellant is alleged to have assaulted him and pelted stones and metals lying at the spot at him. There after Mula Jhadia/ PW4 with the help of her husband carried the injured husband to the house of Bubaneshwar, but he lost his breath soon thereafter. 3. Hadi Kirsani son of Mulia Kirsani/ PW2, brother of the deceased, lodged the incident FIR at P.S.Orkel at a distance of 28 KMs, on 7.12.2003 at 8 p.m. vide Case No. 84 of 2003, which was registered u/s 304 I.P.C. by Rajendra Kumar Dehurey, O.I.C. Police Station Orkel/ PW8, who immediately set a foot to investigate into the crime, examined the informant and other witnesses and deputed constable No. 84 to guard the cadaver of the deceased. On 8.12.2003 I.O. came to the incident spot, examined witnesses and conducted inquest over the corpse of the deceased and prepared inquest memo Ext. 1. Dead body thereafter was dispatched for post mortem examination to M.O., P.H.C. Khairput. Appellant was arrested on the same day and weapon of assault, a bamboo stick, was seized from her. Following day wearing apparels of the deceased were also seized. P.M. examination report was received by the I.O. on 18.12.2003, who also called for expert opinion from Dr. 1. Dead body thereafter was dispatched for post mortem examination to M.O., P.H.C. Khairput. Appellant was arrested on the same day and weapon of assault, a bamboo stick, was seized from her. Following day wearing apparels of the deceased were also seized. P.M. examination report was received by the I.O. on 18.12.2003, who also called for expert opinion from Dr. Shashi Bhushan Mahapatra, M.O., P.H.C. Khairput regarding the weapon, which opinion was received by him on 24.12.2003 and ultimately closing down the investigation, the appellant was charge sheeted by the I.O. u/s 302 I.P.C. 4. Autopsy examination on the corpse of the deceased was performed by PW7 on 8.12.2003 and post mortem examination report Ext. 6 was slated by the doctor, according to whose depositions deceased had sustained following ante mortem injuries:- (i) Lacerated wound of 5 1/2” x 1 Cm with irregular size over the left temporal part above left ear caused by hard and blunt object and grievous in nature. (ii) Bruise 7 x 1 ½ Cm over left side back caused by hard and blunt object and simple in nature. (iii) Bruise 5 x 1 ½ Cm over right side back caused by hard and blunt object and simple in nature. Internal examination revealed fracture of temporal bone with hemorrhage in subdural and intra cranial brain. Heart was pale and empty, and lung was also pale. Due to intra cranial hemorrhage profuse bleeding led to cardio respiratory failure, which was the root cause of deceased’s demise and sustained injuries were sufficient in ordinary course of nature to cause death. 5. After observing due committal formalities, case of the appellant was committed to Sessions Court for trial, where Additional Sessions Judge, Malkangiri charged the appellant with offence u/s 302 I.P.C. on 3.8.2004 and since the appellant denied the charge, pleaded innocence and claimed to be tried that her prosecution commenced. 6. In all, eight prosecution witnesses were examined in the trial, out of whom only Mula Jhadia/PW 4 is the sole eye witness. Informant Hadi Kirsani is PW2. Hari Machha/ PW1 is a witness of inquest, Duryodhan Kirsani/ PW3 turned hostile and did not support the prosecution case at all. Damu Dora/ PW5 is a seizure witness of bamboo stick, the alleged weapon of assault, seized vide seizure memo Ext. 2. Shankar Chandra Das, Constable 84, had carried the corpse of the deceased, dead body chalan, Ext. Hari Machha/ PW1 is a witness of inquest, Duryodhan Kirsani/ PW3 turned hostile and did not support the prosecution case at all. Damu Dora/ PW5 is a seizure witness of bamboo stick, the alleged weapon of assault, seized vide seizure memo Ext. 2. Shankar Chandra Das, Constable 84, had carried the corpse of the deceased, dead body chalan, Ext. 4 and the command certificate, Ext. 5 to the doctor, and following day had handed over deceased’s napkin to the I.O. Dr. Shashi Bhushan Mahapatra/ PW7 the autopsy doctor and I.O. is PW8. 7. Learned trial Judge believed the prosecution case and convicted the appellant for the charge of murder and sentenced her to life imprisonment and hence challenges has been made by the appellant to the said judgment and order in this appeal. 8. We have heard Sri Saurav Samal, advocate for the appellant and Mr. Sk.Jafarulla, Additional Public Prosecutor for the State and have scanned the entire trial court record searchingly. 9. Learned counsel for the appellant challenged the impugned judgment primarily for the reason that the prosecution has not been successful in establishing appellant’s guilt inasmuch as neither the FIR has been proved nor the prosecution has brought on record any reliable witness to connect the appellant with the crime. The evidence of the sole eyewitness does not indicate that it is an incident of murder. It was pitch dark and the sole eye witness was unable to locate the assault and the part of the body where the blows fell. Even at the worst what transpires is that out of fear and anger the deceased, who was in an inebriated condition was bitten without any intention and knowledge to commit his murder and, therefore, recorded conviction of the appellant is unsustainable. Record further reveals that the trial court itself was dissatisfied with the manner in which the entire prosecution case was conducted and by abdicating the responsibility to conduct a fair trial, it has convicted the appellant without any viable reason. Learned counsel, therefore, urged that the appeal of the appellant be allowed and she be acquitted of the charge framed. 10. Arguing to the contrary, learned Additional Public Prosecutor supported the judgment and contended that the guilt of the appellant is established and it was she who had assaulted her husband and, therefore, she cannot escape from conviction and life sentence. 10. Arguing to the contrary, learned Additional Public Prosecutor supported the judgment and contended that the guilt of the appellant is established and it was she who had assaulted her husband and, therefore, she cannot escape from conviction and life sentence. There is nothing in the impugned judgment, which requires interference by this Court and the appeal be dismissed. 11. We have considered the rival submissions. In view of the contentions raised before us, when record is peeped through some very disquieting features emerges regarding the manner in which trial has been conducted and evidence led in the trial has been scanned and scrutinized. We therefore, proceed to take stock of those factors. 12. So far as Hari Machha/PW1 is concerned, since he is only a witness of inquest, his evidence is valueless and is of no avail to establish the guilt of the appellant as the perpetrator of the crime as it fails to connect her with the incident. PW1 is not a witness to the incident and what can only be said from his evidence is that the deceased died not under normal circumstances and his demise can be safely concluded to be either accidental or homicidal and nothing more. 13. Coming to the evidence of PW2, though he is the informant, but his evidence is also worthless to connect the appellant with the crime as his entire evidence concerning the incident is hearsay and in admissible being hit by section 60 of The Evidence Act. He had no idea about the happening and manner of the incident at all. He at best is a witness, who had lodged the FIR, but even on this score, it is to our utter dismay, that he has not proved the FIR or its contents. Why such a course was adopted by the prosecution is not at all perceptible from the record. Learned trial judge also abdicated his responsibility to conduct a fair trial and got the FIR proved through this witness. He remained a silent spectator to the whole trial procedure and acted only as a recipient of evidences. We only express our displeasure over the manner in which the evidence of the informant/PW 2 was recorded during trial. It is slip shod and does not at all indicate that the prosecution was interested in bringing home the guilt of the appellant. We only express our displeasure over the manner in which the evidence of the informant/PW 2 was recorded during trial. It is slip shod and does not at all indicate that the prosecution was interested in bringing home the guilt of the appellant. On the contrary, we get an impression that an effort was made to screen off the accused or conceal real truth from the court. It is also transpires from the evidence of the informant/PW2 that the deceased was residing in village Nandiniguda since last about ten years, which was about 6 hours of tramping from the village of PW2, the informant. The evidence of this informant is wholly unreliable as according to him when he had arrived at the spot, the deceased was “lying at the road side of Nuaguda”, whereas the evidence of the sole eye witness is that he was lifted away from the road side and was brought to the house of Bhubaneshwar. According to this witness, the deceased had consumed ‘Salap’ and had not returned home since last three days earlier to his death. This witness had admitted that now he was cultivating the land of his deceased brother and he had mortgaged his land in village Kadamguda and had shifted to Nuaguda, where the land of the deceased existed. He was suggested that to grab the agricultural lands belonging to the deceased, that he had foisted the appellant in a false case. Vetting the evidence of this witness, it is crystal clear that it does not at all implicate the appellant in any crime and so much so that he has not even proved his FIR, the earliest prosecution version. No reliance, therefore, can be placed on the testimony of this witness. 14. Duryodhan Kirsani/ PW 3 had turned hostile and had not support the prosecution case at all, but even then he was neither declared hostile nor was cross-examined and therefore, his evidence is also worthless to establish guilt of the appellant. 15. Now adverting to the evidence of so called eye witness Mula Jhadia/ PW4, it emerges from her evidence that initially, her husband had located the deceased lying in a drunken state on the road and it was he who had informed her about it. 15. Now adverting to the evidence of so called eye witness Mula Jhadia/ PW4, it emerges from her evidence that initially, her husband had located the deceased lying in a drunken state on the road and it was he who had informed her about it. This is so apparent from para 2 of her depositions, which is incongruent to her earlier statement that while going to the spot, she had located the appellant lying on the road in a drunken state when the appellant had arrived there. It is recollected that the incident night is a wintry night in the month of December and normally women folk in villages remains inside their residential abodes. There was no occasion for PW4 to go to the spot prior to arrival of the appellant. Further, another incongruity is apparent when this witness stated that when the accused came to her, it was night. Where was then occasion for the accused to approach her except when she was unable to carry her husband who by that time was already injured and was drunk. She had admitted that that it was the appellant who with her help had carried the injured to the house of Bhubaneshwar. To refer her exact deposition, we extract some portion of her statements. She has deposed that “when the accused came to me it was night. Since it was dark, I cannot specifically say where the stick blows fell on the body of the deceased or the number of blows given by the accused. The accused had gone to call her husband home.” She further went on to depose “After the occurrence, my-self and accused carried the deceased to the house of Bhubaneswar. There after my husband reached there. I along with my husband gave hot foments to the deceased along with the accused. Thereafter the accused left for her house.” 16. Why the appellant will indulge in such a bizarre act if she herself had assaulted the deceased is a very big question to which there does not seem to be any convincing answer. Why she fomented his injuries with PW4 and her husband is another very begging question requiring an answer. Thereafter the accused left for her house.” 16. Why the appellant will indulge in such a bizarre act if she herself had assaulted the deceased is a very big question to which there does not seem to be any convincing answer. Why she fomented his injuries with PW4 and her husband is another very begging question requiring an answer. Pieces of evidence referred to above does not convincingly and conclusively establish that the appellant in fact had assaulted the deceased and with such a conduct it is very difficult to conclude that she had murdered her husband. Her defence version, by no stretch of imagination, can be said to be out of place. It is quite compatible with the prosecution case. This we conclude also because the deceased had sustained only a single head injury and rest of his two injuries are on the back only and they were only abrasions and simple in nature. There is no fourth injury. There is no injury by stones and metal pieces lying at the spot as alleged by the prosecution. Learned trial court has not paid due consideration to the above quoted portion of evidence which in fact demolish theory of assault made by the appellant. There was no source of light and in fact PW4 herself admitted that it was pitch dark and she was unable to spot number of assaults and the parts of body being hit. She was also unable to spot the blood on the spot nor her clothes got stained with blood while lifting the deceased. No blood was found at her house also. No blood was collected nor any seizure memo was prepared or proved. What equally significant is that initially she did not state that the appellant has assaulted the deceased with bamboo stick. It was only during cross examination that she stated that she was unable to count the numbers and parts of body but this does not absolve prosecution of its prime responsibility of establishing as a fact that the appellant had assaulted the deceased with bamboo stick. This witness, Mula Jhadia/PW 4, in her examination-in-chief had stated that she had spotted the deceased lying on the road in a tipsy condition, but later on she made an incongruent statement as noted above. This witness, Mula Jhadia/PW 4, in her examination-in-chief had stated that she had spotted the deceased lying on the road in a tipsy condition, but later on she made an incongruent statement as noted above. Vetting of her such statements no-where conclusively establishes that the deceased was assaulted by the appellant and to the contrary it indicates that the appellant had arrived at the spot to carry her husband home and finding him in an injured state that she lifted him to the house of Bubaneshwar where she even tried to soothe his injuries by fomenting it along with PW4 and her husband. Such a statement by the so called eyewitness does not at all establish the charge of murder or assault by her. Learned trial Judge completely erred in ignoring such evidences and to scan it from a prudent approach. It has accepted it pedantically without scrutinizing its intrinsic worth. Such a course to say the least is totally unwarranted as it gives impression of abdication of duty to separate the grain from the chaff. Learned trial judge completely failed to appreciate such a statement made by the sole eyewitness and went on to convict the appellant for the charge of murder. She was unable to specify as to from where bleeding from the body of the deceased came. She had also stated that the deceased was not in a position to talk. Although she denied the defence suggestion that in a drunken state the deceased had fallen down on a stone and sustained injuries, but then her deposition, taken in totality, does not establish the charge of murder or culpable homicide amounting to murder punishable under Section 304, Part(I) of the I.P.C. at all against the appellant. 17. Coming to the evidence of PW 5, he is only a witness to the seizure of Bamboo stick. We are at a loss to fathom out any reason why the Public Prosecutor was allowed to put leading questions to this witness without the learned trial court observing that this witness has been declared hostile. During his deposition PW 5 has further stated that the police had asked the accused to bring the stick and the accused had not told anything in the presence of PW 5. During his deposition PW 5 has further stated that the police had asked the accused to bring the stick and the accused had not told anything in the presence of PW 5. This certainly brings out that in fact no statement leading to the discovery relating to the crime was made by the accused to the police and hence, in essence there was no admissible evidence under Section 27 of the Evidence Act. In such a view, how the evidence of PW 5 became relevant is not at all culled out. 18. PW 6 is the police constable, who had carried the cadaver and PW 7 is the autopsy doctor. Although from the evidence of these witnesses it is established convincingly that the deceased had met a unnatural death, but that alone is wholly insufficient to anoint the guilt of the accused inasmuch as their evidence does not point out involvement of the accused in the crime at all. In view of the aforesaid, we are at one with the contention of the learned counsel for the appellant that the prosecution has miserably failed to bring home the charge of murder against the appellant. 19. Coming to the examination of the Investigating Officer/ PW 8, learned trial judge himself has noted that during his examination neither the Public Prosecutor nor the Special Public Prosecutor were available to conduct the prosecution. When the question was asked where the spot was located, PW 8 was unable to give an answer. Later on by referring to the criminal detailed report, he had deposed that the spot was in village Nuaguda in front of the house of Bhubaneswar Singh. Investigating Officer has further admitted that he had not found any blood at the spot. At this juncture the learned trial judge himself noted that “the way the I.O. is conducting himself in the Court and is very shy and trying to consume time on pertinent questions like injury, cause of death, whether blood was found on head of the deceased during inquest, genuinely leads this Court to believe that he has not properly investigated into the case.” In such a view, we are of the opinion that the defence of the appellant lady that the deceased could have sustained injury no.(i) by falling from sufficient height and force on a stone cannot at all be ruled out. Rest of the injuries are bruises and both are on the left and right side of the back and both were simple in nature. The manner in which the sole eyewitness has been deposed is not indicative of the fact that the appellant had assaulted the deceased. 20. On an overall analysis, we are of the opinion that the prosecution has not been able to conclusively establish that because of the assault given by the appellant that the deceased had sustained injuries on his person and the assault was inflicted with an intention to cause his death and therefore, we are of the view that the impugned judgment of conviction and sentence is unsustainable. 21. In view of what we have stated herein above, we find that the prosecution has been very unsuccessful in establishing guilt of the appellant and therefore, she deserves an acquittal. 22. In the net result, appeal is allowed, impugned judgment and order is hereby set aside and the appellant is acquitted of the charge framed against her. She is in jail and, therefore, is directed to be released from jail forthwith unless she is required in connection with any other case. 23. Let a copy of the judgment be sent to the trial Judge for its information.