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2019 DIGILAW 544 (ORI)

Ahalya @ Kalyani Khuntia v. State of Odisha

2019-08-26

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. The petitioner Ahalya @ Kalyani Khuntia has filed this application under section 439 of Code of Criminal Procedure seeking for bail in connection with Khandapada P.S. Case No.258 of 2018 corresponding to G.R. Case No.466 of 2018 pending on the file of J.M.F.C., Khandapada for offences punishable under sections 498(A)/302/307/34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act. 2. The criminal investigative machinery was set into motion on 31.12.2018 on the presentation of the first information report by Bimal Kumar Mallick, Inspector in Charge of Khandapada Police Station. It is the case of the prosecution as per the first information report that on 22.10.2018 the mother of the petitioner namely Sukanti Lenka lodged a report against the inlaws family members of the petitioner to have mentally and physically tortured the petitioner demanding dowry and committing murder of granddaughter Sibani Khuntia and grandson Siba Khuntia and dumping the dead bodies in a pond to conceal the murder. Khandapada P.S. Case No.216 of 2018 was registered on such report of the mother of the petitioner on 22.10.2018 under sections 498-A, 307, 302 read with section 34 of the Indian Penal Code and section 4 of Dowry Prohibition Act. The Inspector in Charge visited the spot in connection with Khandapada P.S. Case No.216 of 2018, examined the witnesses, held inquest over the dead bodies of Siba Khuntia and Sibani Khuntia and sent it for post mortem examination. The Medical Officer opined the cause of death was due to asphyxia caused by drowning with suspected poisoning. The viscera were preserved and it was sent to SFSL, Rasulgarh for opinion and the Scientific Officer detected no metallic poison in both the viscera of the deceased persons. After receipt of the viscera reports, query was made relating to final opinion regarding cause of death and accordingly the Medical Officer opined that the cause of death of both the deceased was due to asphyxia caused by drowning which was ante mortem in nature. During course of further investigation of Khandapada P.S. Case No.216 of 2018, it was found that the petitioner married to one Babu @ Babuli Khuntia of village Laxmiprasad in the year 2008 and they were blessed with two children i.e. deceased persons Sibani Khuntia and Siba Khuntia who were aged about ten and four years respectively at the time of occurrence. It was further found out that the petitioner and her husband used to quarrel with each other over trifling matters and their relationship was not good. The husband of the petitioner incurred heavy loan from different financial organizations and various groups of his own village and he could not able to repay the loan amount for which he was pressurizing the petitioner to arrange money and as the same could not materialize, the husband and parents-in-law of the petitioner were torturing her physically and mentally and the husband of the petitioner was remaining outside from the house. It was also found during course of further investigation that on the fateful day i.e. on 21.10.2018 the husband and the parents-in-law of the petitioner were not present in the house and they were engaged in different assignments and when in the evening hours, the mother-in-law of the petitioner returned back home, she found the door of her house was closed and nobody was present there. She searched for the petitioner and her two grand children but found them missing. The villagers also assisted her in the search. The father-in-law of the petitioner returned back home and ultimately the dead body of Siba Khuntia was found first inside the pond which was situated in the backyard of the house and subsequently the dead body of Sibani Khuntia was also found from that pond. The petitioner was found in an injured condition in the pond shouting for help. The dead bodies as well as the injured petitioner were shifted to Nayagarh Hospital. It was found during investigation of Khandapada P.S. Case No.216 of 2018 that though the husband and the parents-in-law of the petitioner were demanding dowry and torturing her physically and mentally but they have no role in the commission of murder of the deceased persons and it was the petitioner who committed the murder of her children Sibani Khuntia and Siba Khuntia by drowning them inside the village pond and then making an attempt to disappear with the evidence. On the basis of the first information report presented on 31.12.2018, a case under sections 302 and 201 of the Indian Penal Code was registered against the petitioner in Khandapada P.S. Case No.258 of 2018 and on completion of investigation, charge sheet was placed under sections 302 and 201 of the Indian Penal Code. On the basis of the first information report presented on 31.12.2018, a case under sections 302 and 201 of the Indian Penal Code was registered against the petitioner in Khandapada P.S. Case No.258 of 2018 and on completion of investigation, charge sheet was placed under sections 302 and 201 of the Indian Penal Code. In Khandapada P.S. Case No.216 of 2018, charge sheet was placed under section 498-A of the Indian Penal Code against the husband and parents-in-law of the petitioner. 3. The petitioner moved an application for bail before the learned Addl. Sessions Judge, Nayagarh in Bail Application No.91 /153 of 2019 which was rejected on 15.05.2019. 4. Mr. Soura Chandra Mohapatra, learned counsel for the petitioner contended that the petitioner is a woman and she is in jail custody since 11.04.2019 and there are no eye witnesses to the commission of murder and there is no clinching circumstantial evidence against the petitioner. No motive has been attributed against the petitioner for committing murder of her own children as alleged by the prosecution. It is contended that neither there is any chance of absconding or tampering with the evidence and therefore, keeping in view the proviso to section 437(1) Cr.P.C., the bail application of the petitioner may be favourably considered. Mr. Priyabrata Tripathy, learned Addl. Standing Counsel appearing for the State of Odisha vehemently opposed the prayer for bail and submitted that there are strong circumstantial evidence against the petitioner and the manner in which the ghastly crime was committed, even though the petitioner is a woman, she should not be released on bail. 5. Adverting to the contentions raised by the learned counsel for the respective parties, it is not in dispute that there is no direct evidence as to who committed the murder of both the deceased who were just aged about ten years and five years at the time of occurrence. There is also no evidence as to when and how the murder was committed. The prosecution case hinges on circumstantial evidence. It is well established rule of criminal justice that fouler the crime, the higher should be the degree of proof. A moral opinion howsoever strong or genuine cannot be a substitute for legal proof. There is also no evidence as to when and how the murder was committed. The prosecution case hinges on circumstantial evidence. It is well established rule of criminal justice that fouler the crime, the higher should be the degree of proof. A moral opinion howsoever strong or genuine cannot be a substitute for legal proof. When a case is based on circumstantial evidence, a very careful, cautious and meticulous scrutinisation of the evidence is necessary and it is the duty of the Court to see that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature and all the links in the chain of events must be established clearly beyond reasonable doubt and established circumstances should be consistent only with the hypothesis of guilt of the accused and totally inconsistent with his innocence. Whether the chain of events is complete or not would depend on the facts of each case emanating from the evidence which is to be adjudicated by the trial Court at the appropriate stage who has a duty not to allow suspicion to take the place of legal proof. The Court has to be watchful to avoid the danger of being swayed away by emotional consideration. Coming to the contention of the learned counsel for the petitioner for favourable consideration of bail application of the petitioner being a woman in view of the proviso to section 437(1) Cr.P.C., it is felt necessary to quote the observation made by this Court in the case of Preeti Bhatia Vs. Republic of India, 2015 (61) OCR 131 (SC), wherein it is held as follows:- "11. Under Section 437 (1) of the Code when a person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court and Court of Session, he may be released on bail by the Court subject to the conditions that he does not reasonably appear to have been guilty of an offence punishable with death or imprisonment for life. The conditions of not releasing the person on bail charged with an offence punishable with death or imprisonment for life shall not be applicable if such person is under the age of 16 years or is a woman or is sick or infirm, subject to such conditions as may be imposed. It does not, however, mean that persons specified in the first proviso to subsection (1) of Section 437 should necessarily be released on bail. The proviso is an enabling provision which confers jurisdiction upon a Court, other than the High Court or Court of Session, to release a person on bail who has appeared or brought before the Court despite the fact that there appears reasonable ground for believing that such person has been guilty of an offence punishable with death or imprisonment for life. There is no gainsaying that the discretion conferred by the Code has to be exercised judicially. The overriding considerations in granting bail which are common both in Section 437(1) and 439(1) of Criminal Procedure Code are the nature and gravity of the offence, position and status of the accused with reference to the victim and the witnesses and likelihood of the accused fleeing from justice and tampering with witnesses etc. Bail is a matter of procedural privilege and not an accrued right until it is granted. The law is the sentinel of rights of the Society and of the individual. The cause of public justice and interest of society have to be zealously guarded compared to the rights of an applicant. If the offence is of such a nature which affects the vital interest of the society and has adverse effect on the social and family life, in such matters the issue is to be considered with reference to them and one of the consideration which has to be weighed for granting or refusing bail is the nature of the offence and its heinousness. Though the beneficial provision relating to release of an accused under the age of sixteen years or on the ground of being a woman or sick or infirm has to be kept in mind while considering his/her bail in spite of his/her involvement in an offence punishable with death or imprisonment for life but at the same time the Court should also give due weight to the other aspects like nature and gravity of the offence etc. and also the adverse impact of the offence committed on the society." 6. On perusal of the case diary, it is found that the statements of witnesses Laxmipriya Sahoo, Bhagirathi Barad and Namita Rout indicate about the last seen of the petitioner in the company of both the deceased. While both the deceased were watching television in the house of Bhagirathi Barad in the evening hours, the petitioner came there and first took deceased Sibani on the pretext of attending call of nature. Subsequently the petitioner again came there and took the deceased Siba @ Sai with her. Sometimes thereafter when witness Namita Rout who is the niece of the petitioner came to the house of the petitioner, she found the deceased Sibani was absent and the deceased Siba @ Sai was lying under a cot. When Namita Rout asked the petitioner the whereabouts of deceased Sibani, she was told that Sibani had been to learn dancing to the house of Tulasi. Witnesses Namita Rout and Laxmipriya Sahoo proceeded to the house of Tulasi and could not find the deceased Sibani there and then Namita Rout came back and intimated the petitioner about the missing of deceased Sibani but the petitioner did not show any anxiety for her missing daughter rather asked Namita Rout to go and watch TV. When the mother -in-law of the petitioner returned back home, she did not find either the petitioner or the two deceased and ultimately after frantic search, the dead bodies were found in the pond and the petitioner was also rescued from the pond and was taken to hospital. Therefore, apart from the last seen of the petitioner in the company of the deceased Sibani and Siba @ Sai, the unnatural conduct of the petitioner when missing of deceased Sibani was reported to her by witness Namita Rout, close proximity in which the dead bodies were recovered from the pond and the petitioner was found in an injured condition in that pond and the cause of death as per the opinion of the Medical Officer prima facie raise accusing fingers at the petitioner. It is correct that no specific motive has been attributed against the petitioner for the alleged commission of murder of her two minor children but it cannot be lost sight of the fact that it is only the perpetrator of the crime who knows as to what circumstances prompted him/her to a certain course of action leading to the commission of crime. Under section 8 of the Evidence Act, any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. Proof of motive in such a case lends additional support to the findings of the guilt. When the motive alleged against the accused is fully established by the prosecution, it affords a key or pointer to scan the evidence in the case, in that prospective and as a satisfactory circumstance of corroboration and further provides a foundational material to connect the chain of circumstances. The absence of motive, however, puts the Court on its guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take the place of legal proof. Adverting to the contentions raised by the learned counsel for the respective parties and looking at the oral as well as documentary evidence available on record against the petitioner relating to the commission of the offences under which charge sheet has been submitted, even though the petitioner is a woman, but taking into account the nature and gravity of accusation and likelihood of tampering with the evidence, I am not inclined to release the petitioner on bail. Any observation made in this order shall not influence the learned trial Court in adjudicating the case and the learned trial Court shall go by the evidence to be adduced by the respective sides during course of trial. The petitioner is at liberty to renew the prayer for bail after examination of the material witnesses in the trial Court. Accordingly, the bail application sans merit and hence stands rejected. Issue urgent certified copy as per rules. A free copy of the order be handed over to the learned counsel for the State.