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2021 DIGILAW 164 (ORI)

Pabitra Sahu v. State Of Orissa

2021-03-31

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT S.K. Mishra, J. - The sole Appellant- Pabitra Sahu assails his conviction and sentence to undergo imprisonment for life under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'the Penal Code' for brevity), to undergo rigorous imprisonment for three years under Section 498A of the Penal Code and to undergo rigorous imprisonment for two years under Section 4 of the Dowry Prohibition Act, 1961 (hereinafter referred to as 'the D.P. Act' for brevity) recorded by the learned Additional Sessions Judge, Nayagarh in S.T. Case No.152/26/3/11 of 1997/1995, as per the judgment of conviction and order of sentence dated 31.01.2002. It was further observed that all the sentences are to run concurrently. It is apparent that other two coaccused persons, namely, Sarat Sahu and Susila Sahu have been acquitted of the said charges by the learned Additional Sessions Judge, Nayagarh. 2. The prosecution case, in short, is that the deceased Puspalata was married to the Appellant Pabitra Sahu on 27.01.1993. Since the parents of the deceased were no more by the time of her marriage, her marriage was performed by her two brothers Srinibas Sahu (P.W.1) and Pitabas Sahu (P.W.2). After the marriage, the deceased Puspalata lived in her in-laws' house. The accused Susila Sahu is the mother-in-law of the deceased Puspalata and the accused Sarat Chandra Sahu is the husband of her sister-in-law namely accused Srimati Sahu. Accused Srimati Sahu since dead was staying with her husband- accused Sarat Chandra Sahu in village Daspalla whereas Appellant Pabitra Sahu was living then in the house of Pitabasa Sahu. At the time of marriage, P.Ws.1 and 2 had given gold ornaments, furniture and utensils towards dowry. After the marriage, all the accused persons demanded that a piece of land situated at Hospital Chhak of Daspalla to be registered in the name of the Appellant and as the deceased Puspalata did not agree to the same, she was tortured by all the accused persons. It is further alleged that the Appellant brought the deceased to her paternal house and left her there saying that unless the land is registered in his name, the deceased would not be accepted in her inlaws' house. It is further alleged that the Appellant brought the deceased to her paternal house and left her there saying that unless the land is registered in his name, the deceased would not be accepted in her inlaws' house. During her stay in her parental house, the accused Sarat Chandra Sahu had come to their house several times and had insisted upon P.Ws.1 and 2 to get the land registered in favour of Pabitra and had also threatened with dire consequences if it was not done. Ultimately, the brothers and sisters of the deceased registered the said land in favour of the deceased and sent the deed of conveyance to the father-in-law of the deceased. After some days, her mother-in-law Susila came and took the deceased back to their house. It is the further case of the Prosecution that the Appellant and other accused persons continued to torture the deceased saying as to why the land was registered in favour of the deceased instead of the Appellant. Deceased Puspalata had told several times to her brothers and sisters about the torture to her by the accused persons and about their demand for registration of a piece of land in the name of the Appellant towards dowry. The deceased died on 27.04.1994. About ten days prior to her death, the Appellant and the deceased had come to the house of P.Ws.1 and 2 in a happy mood and the Appellant told them that he would have a shop room on that piece of land and stay there. The Appellants also told them that he was making arrangement for bricks and other house building materials to make construction of a shop room on the land which was given to Puspalata by them. On the same day evening, while the deceased was grinding black gram for preparation of Pitha, all on a sudden, she became unconscious and fell down. She was immediately carried to Daspalla Hospital, where she was declared dead. Dr. Umesh Chandra Mishra (P.W.11) who was the medical officer submitted a report (Ext.11) to the Daspalla Police Station stating therein that the deceased was admitted to Daspalla Hospital at 09.45 P.M., having repeated attacks of convulsion and expired at 10.00 P.M. on that day. She was immediately carried to Daspalla Hospital, where she was declared dead. Dr. Umesh Chandra Mishra (P.W.11) who was the medical officer submitted a report (Ext.11) to the Daspalla Police Station stating therein that the deceased was admitted to Daspalla Hospital at 09.45 P.M., having repeated attacks of convulsion and expired at 10.00 P.M. on that day. Sadhu Charan Patra (P.W.9), the then A.S.I. of Police of Daspalla Police Station was directed by the O.I.C. Sarbeswar Sahu to enquire into the matter after registering U.D. Case No.6/94. During the course of enquiry, P.W.9 visited to Daspalla Hospital and held inquest over the dead body of Puspalata and sent the dead body for post-mortem examination on the next morning. During the course of enquiry it came to the light that on 27.04.994 evening i.e. on the day Puspalata died, the Appellant Pabitra Sahu had brought some Rasagolas and Maize (Maka) to their house and told Puspalata that accused Srimati and her husband accused Sarat had expressed their sorrow as she was not visiting their house and accused Srimati had sent those Rasagolas which she should take. On the request of Appellant Pabitra, the deceased Puspalata took one or two Rasagolas and then attended her work. After sometime, she vomited and became unconscious for which she was taken to hospital and expired there as stated above. On 28.04.1994 at about 2.30 P.M. P.W.9 had seized seven numbers of Rasagolas kept in a polythene bag produced by Srinibas Sahu (P.W.1) which were in broken state and smell of pesticide was coming from those Rasagolas. He had also seized the Xerox copy of the R.O.R. of Plot No.1330 with an extent of 2 decimals and 5 kadis of land recorded in the name of Puspalata and released the same in the zima of Srinibas Sahu. P.W.9 lodged the written report before the O.I.C., Daspalla Police Station vide Ext.4 on which a case under Section 498A/304B/328 of the Penal Code and Section 4 of the D.P. Act was registered. During the course of investigation, the then O.I.C., Daspalla Police Station (P.W.7) took charge of all the records of U.D. Case from P.W.9 and visited the father's house of the deceased. He received the post-mortem examination report. He sent the viscera of the deceased collected during post-mortem examination report. During the course of investigation, the then O.I.C., Daspalla Police Station (P.W.7) took charge of all the records of U.D. Case from P.W.9 and visited the father's house of the deceased. He received the post-mortem examination report. He sent the viscera of the deceased collected during post-mortem examination report. He sent the viscera of the deceased collected during post-mortem examination and the seized Rasagolas for chemical examination to S.F.S.L., Rasulgarh, Bhubaneswar through the learned J.M.F.C., Daspalla and on chemical examination, insecticidal poison was detected in the viscera as well as in the seized Rasagolas. After completion of investigation, charge-sheet was submitted against all the accused persons under Sections 498A/ 304B/328 of the Penal Code and Section 4 of the D.P. Act. But charges were framed against the accused persons under Section 302/34 of the Penal Code instead of Section 328 of the Penal Code, since the learned trial judge was of the opinion that there was prima facie material on record to show that the accused persons had killed Puspalata by administering poison in Rasagolas. During the course of trial, since the accused Srimati Sahu died, the case against her was abated vide order dated 15.12.2001. 3. Defence took the plea of complete denial of the charge. 4. In order to prove its case, the prosecution examined eleven witnesses. P.Ws.1 (Srinibas Sahu) and 2 (Pitabasha Sahu) are the two brothers and P.W.4 (Tilotama Sahu) is the sister of the deceased Puspalata Sahu. P.W.3 (Chitaranjan Sahu), P.W.5 (Purna Chandra Mishra) and P.W.6 (Narayana Sahu) are the witnesses to the inquest held over the dead body and seizure of Rasagolas. P.W.11 (Dr. Umesh Chandra Mishra) had reported about the death of Puspalata in the hospital to the Police Station suspecting it to be a case of poisoning. P.W.9 (Sadhu Charan Patra) is the then A.S.I. of Police, Daspalla Police Station who had inquired into the U.D. Case and had lodged F.I.R. P.W.7 (Sarbeswar Sahoo) is the then O.I.C. of Police, Daspalla Police Station who had conducted major part of the investigation and P.W.8 (Jambeswar Mohapatra) is the then O.I.C. of Police, Daspalla Police Station who had only submitted charge-sheet. P.W.10 (Dr. Rajendra Kumar Sahu) who had conducted post-mortem examination on the dead body of the deceased. The defence has not examined any witness in support of their plea. 5. P.W.10 (Dr. Rajendra Kumar Sahu) who had conducted post-mortem examination on the dead body of the deceased. The defence has not examined any witness in support of their plea. 5. There is no dispute in this case that the prosecution bases its case solely on circumstantial evidences. There is no evidence that the Appellant administered poison to the deceased. The prosecution seeks to establish poisoning by providing the circumstance that the Appellant brought Rasagolas and forced the deceased to eat the same. On the first search by P.W.9, the Investigating Officer nothing incriminating was seized from that house where the incident took place. However, later on 28.04.1994 at about 2.30 P.M. the said Rasagalos in a broken state were seized on production by P.W.1. The seizure was made by P.W.9. It was also submitted that the prosecution has not established that the Appellant purchased the insecticide that was found in the Rasagolas and the viscera of the deceased and that he administered the said pesticide to the deceased. 6. Learned counsel for the Appellant has relied upon the judgment of the Hon'ble Apex Court passed in the case of Sharad Birdhi Chand Sarda -vrs.- State of Maharashtra: reported in AIR 1984 SC 1622 in which the Hon'ble Apex Court has given the guidelines for appreciation of evidence in case of poisoning. The Hon'ble Apex Court ruled that in order to establish a case of murder by administering poison, the following facts should be established beyond reasonable doubts. (i) There is a clear motive for an accused to administer poison to the deceased; (ii) that the deceased died of poison said to have been administered; (iii) that the accused had the poison in his possession; and (iv) that he had an opportunity to administer the poison to the accused. The Hon'ble Apex Court further held that in a case based on circumstantial evidence, if on the evidence, two possibilities are available, then the benefit of doubt should be given to the Accused. 7. In this case, none of the witnesses had seen the Appellant purchasing the insecticide. So they have not deposed about the same. Similarly none of the witnesses stated that they have seen the Appellant mixing insecticide or pesticide in the Rasagolas. The Rasagolas were not seized from the spot house in the first search. 7. In this case, none of the witnesses had seen the Appellant purchasing the insecticide. So they have not deposed about the same. Similarly none of the witnesses stated that they have seen the Appellant mixing insecticide or pesticide in the Rasagolas. The Rasagolas were not seized from the spot house in the first search. Rather, after a long lapse of time it were produced by P.W.1 before P.W.9 who seized the same. In this case, the Investigating Officer has not directed his investigation to find out whether the Appellant was ever in possession of the poison that is stated to be the cause of death of the deceased. Such fact could have been established by examining the dealers of insecticide and pesticide in the locality and in nearby places and the same should have been determined by the Investigating Officer. In this case, no such effort has been made by the Investigating Officer to determine whether the Appellant had purchased insecticide or pesticide. So, a very significant aspect has not been investigated into in this case. Further, it is apparent that the circumstances proved in this case do not form a complete chain of events unerringly pointing to the guilt of the Appellant. The five golden principles of appreciation of evidence as enunciated by the Hon'ble Supreme Court in the off-quoted judgment passed in the case of Sharad Birdhi Chand Sarda (supra) have not been satisfied in this case. 8. Another circumstance which is of immense importance to establish the prosecution case is the deed of conveyance allegedly executed in favour of the deceased Puspalata, the wife of the Appellant, as dowry to the Appellant. Though it is the consistent case of the prosecution that the deed of conveyance was executed in favour of the deceased Puspalata, the wife of the Appellant, to satisfy the demand of the Appellant for dowry, the prosecution has not proved that deed of conveyance before the learned trial judge. No plausible explanation has also put forth to justify non production of the deed of conveyance during the trial. No plausible explanation has also put forth to justify non production of the deed of conveyance during the trial. The deed of conveyance having not been proved in this case and the evidence regarding dowry torture meted out to the deceased being omnibus and general in nature, we are of the opinion that the conviction under Sections 498A of the Penal Code and Section 4 of the D.P. Act can also not be confirmed in this case. 9. In the result, the appeal is allowed. The conviction and sentence to undergo imprisonment for life under Section 302 of the Penal Code, to undergo rigorous imprisonment for three years under Section 498A of the Penal Code and to undergo rigorous imprisonment for two years under Section 4 of the D.P. Act recorded by the learned Additional Sessions Judge, Nayagarh in S.T. Case No.152/26/3/11 of 1997/1995, as per the judgment of conviction and order of sentence dated 31.01.2002 are hereby set aside. The Appellant is acquitted of the said charges. 10. Record reveals that the Appellant- Pabitra Sahu has been granted bail upon appeal. He be set at liberty forthwith by cancelling the bail bond executed by him. The T.C.R. be returned back forthwith. Accordingly, the CRA is disposed of.