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Judgment
Dr. S.K. Panigrahi, J.
By the impugned judgment of conviction and order of sentence dated 04.10.2016 passed by the learned Additional Sessions Judge, Rairangpur in Sessions Trial No.20 of 2014, the present Appellant has been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as ‘the I.P.C.’ for brevity) for having committed murder of his wife Arati. The Appellant has been sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/-, in default to undergo R.I. for six months more.
I. CASE OF THE PROSECUTION:
The prosecution case, as is revealed from the materials on record, is that the marriage of deceased Arati, niece of the informant (P.W.1), took place with accused Raj Kumar as per their caste, customs and rites on 25.11.2012. It is alleged that at the time of marriage besides house-hold articles, cash amounting to Rs.1,51,000/- (one lakh fifty one thousand) and five tolas of gold ornaments were given. Few days after the marriage, accused persons started subjecting the deceased to cruelty on the pretext of demand of a motor cycle and more dowry money. It is also alleged that due to non-fulfilment of their aforesaid demand, they had taken attempt to kill Arati intentionally pushing her inside a well nearby their house. However, luckily she was saved by the villagers. Fifteen to twenty days prior to the date of occurrence, the parents had also gone to bring back Arati to their house on the occasion of marriage of her sister. But the accused persons did not allow her to go with them and put-forth a demand of rupees two lakhs to be paid to them for allowing the deceased to go with them. Subsequently, on 12.03.2014, they successfully done her to death in their house by deliberately setting fire to her. The fact of death of Arati was known by the informant and others over phone from the police authorities of Jamda Police Station. Accordingly, on the next day, they came to the village of theh accused persons and found the dead body of Arati was lying in burnt condition on the floor in the outer room of their house. It was ascertained from the villagers that the accused persons have killed the deceased on the previous day.
On the written report of the informant, the then I.I.C., Jamda Police Station, Sri P.K. Kerketta (P.W.19) took up investigation. During investigation, he collected many incriminating materials from the spot with the help of scientific officer and in presence of Executive Magistrate, sent the same to S.F.S.L., Bhubaneswar for chemical test through court. On examination of material witnesses as he found involvement of the accused persons in the alleged offences on prima-facie basis, he arrested them and forwarded them to the court of the learned S.D.J.M., Rairangpur.
II. TRIAL COURT’S JUDGMENT:
In this case four accused persons faced the trial.
The defence took the plea of denial and false implication in this case. Rather, they had taken a specific stand that the deceased had died by sustaining burn injuries by herself.
In order to prove the allegation, the prosecution examined as many as 19 witnesses. The prosecution also placed reliance on the documents marked as Exts.1 to 9. Out of the 19 witnesses, P.W.1 is the informant and he alongwith P.W.16 are the paternal uncles of the deceased. Similarly, P.W.4 is her mother, P.W.5 and P.W.14 are her aunts (Khudi) and PW.15 is her maternal uncle. P.Ws.2 and 7 are the witnesses to the seizure of gift items made by the Investigating Officer (P.W.19). P.W.8 is the scribe of the F.I.R. P.Ws.3, 6, 9, 10 and 13 are the co- villagers of the accused persons. Out of them, P.Ws.3 and 13 are post occurrence witnesses. P.W.6 said to have rescued the deceased from the well alongwith other villagers one month prior to the date of incident. P.W.9 is a witness to the seizure of marriage invitation card. P.W.10 is a Newspaper hawker, who said to have seen the discontentment of accused Raj Kumar with the deceased on the date of incident. P.W.11 is a co-villager of the informant. P.W.12 is the priest from the side of the bride. P.W.17 is the doctor of Sub-Divisional Hospital, Rairangpur, who has conducted the post-mortem examination. P.W.18 is the Scientific Officer, D.F.S.L., Baripada, who has collected incriminating materials from the spot. As against the above, accused Raj Kumar has been examined as a defence witness.
Having perused the evidence on record, the learned trial court pointed out that Sanjay Nandi, the informant (PW.1) in conformity with the F.I.R. allegation in his evidence has deposed that at the time of marriage cash amounting to Rs.1,51,000/- (one lakh fifty one thousands) was given besides five tolas of gold ornaments and other house-hold articles. He also stated that in the year 2014, on account of the marriage of the elder sister of the deceased, his elder brother and his family members had gone to the house of the accused persons to invite Arati as well as accused persons, but they came along with Arati. In consonance with his evidence, mother of the deceased (P.W.4) also stated that at the time of marriage, besides gold ornaments aforesaid amount of cash were given to the groom. Further, supporting the evidence of P.W.1, she stated that one month prior to the alleged incident, she alongwith her husband and children had gone to the house of the accused persons to bring Arati, but the accused persons put-forth a demand before them of Rs.2,00,000/- (two lakhs) to allow Arati to go with them. The aunt (Khudi) of the deceased (P.W.5), disclosed in her evidence that after one year of the marriage, when Arati had come to their house to attend the marriage ceremony of her elder sister, followed by her husband accused Raj Kumar, she found her to be a little bit upset in her attitude. Being asked about the reason of her remaining remorse, she had expressed before her that accused persons were always quarreling with her and asking her to bring more money from her parents. When they asked the accused Raj Kumar about the same, he assured them to treat her well and with such promise, he took Arati with him after the marriage function. Two months thereafter, the parents of the deceased had gone to their house where the accused persons quarreled with them, when they intended to take Arati with them. Rather, they put-forth the condition that they would allow her to go with them, if they would give them the amount of expenditure, which they had incurred during the time of marriage.
But, such evidence is not found to be trustworthy and believable inasmuch as it is clearly evident from the evidence of P.Ws.1 and 5 that the marriage between the deceased and the accused Raj Kumar was solemnised smoothly and peacefully and in accordance with their prevailing caste, customs and rites the gift items were given. Moreover, it is also evident from the evidence of P.W.1 that all the gift items as aforesaid were given as per the requirement of their prevailing custom. That apart, P.Ws.4 and 5 had not spoken the aforesaid aspect of their evidence before the Investigating Officer at the first instance, as would be evident from the evidence of the Investigating Officer (P.W.19) in paragraph eleven. Moreover, P.W.5 in her cross- examination at paragraph seven clearly admitted that she did not state before the Investigating Officer about her finding the deceased being upset and she told her that the accused persons were always quarrelling with her to bring money from her parent. Maternal uncle of the deceased (P.W.15) claimed that he used to hear from his sister (P.W.4) that the accused persons were subjecting the deceased to cruelty/torture frequently. But, such claim is clearly falsified from his own evidence, inasmuch as in his cross-examination he fairly admitted that he had not spoken the above aspect to the Investigating Officer. Similarly, the paternal uncle of the deceased (PW.16), albeit said that after the marriage, Arati and accused Raj Kumar were quarrelling for money but his aforesaid claim was also not acceptable, because unlike P.W.15, he fairly admitted not to have stated the said fact before the Investigating Officer.
On an appraisal of the aforesaid evidence on record, the learned trial court hold that the allegation with regard to the offence under Section 498A/34 of the I.P.C. so meted out by the accused persons is not established to the hilt. Moreover, the evidence also falls short to come to a conclusion that there has been showing of cruelty to the deceased in connection with demand of dowry soon before her unnatural death. Therefore, the prosecution has also failed miserably to prove the charge under Sections 304-B/34 of the I.P.C. against all the accused persons beyond all reasonable doubt.
So far as the offences under Sections 406/34 1.P.C. and 4 of the D.P. Act are concerned, the learned trial court pointed out that the Investigating Officer in his evidence had deposed that on 13.03.2014, during investigation, he had caused seizure of the dowry articles and other articles in presence of family members of the deceased on production of the same by the accused persons vide seizure list, Ext.4/2 and left the same in zima of the informant Sanjay Nandi, who received the same by executing a zimanama, Ext.3. Such fact had also been admitted by the informant in his evidence in clear term. Thus, the offence under Section 406/34 of the I.P.C. for misappropriation or conversion the 'stridhan' properties of the deceased by the accused persons is completely ruled out. Accordingly, the learned trial court has held that the prosecution has also failed to establish that the accused persons were subjecting the deceased to cruelty or torture on the demand of more dowry. Therefore, the offence under Section 4 of the D.P. Act cannot also legally be attributable to the accused persons.
While dealing with the offence under Sections 302/34 of the I.P.C., the learned trial court pointed out that there is no independent eye-witness account in respect of sustaining of burn injuries by the deceased. Therefore, in order to establish the complicity of the accused persons in such crime, learned Additional Public Prosecutor had placed much stress on the following circumstances:
“(a) The unsubstantiated plea of alibi of accused persons.
(b) Non-cordial relationship of deceased with accused persons prior to her death to be the motive of the crime
(c) Staying of the deceased in the same house with accused persons prior to recovery of her dead body or last seen together.
(d) Recovery of dead body from the house of accused persons.
(e) Non offering of any plausible explanation by them about recovery of dead body of deceased from one of the rooms of their house.
(f) Recovery of incriminating materials like half burnt wearing apparel, match stick, jerrycane having smell of kerosene oil and crowbar near the dead body of the deceased.”
It was also pointed out that to raise a clear amount of suspicion in the chain of circumstances of evidence pointing towards the involvement of the accused persons in the offence, learned defence counsel placed his reliance on the sole defence evidence of the accused Raj Kumar about their “plea of alibi”. He categorically stated that all of the accused persons were not present in their house at the time of sustaining of burn injuries by the deceased. Rather, he categorically stated that he was present in his stationery shop at a distance of about three kilometres from the house. Similarly, his brother, accused Dhaneswar had gone to block office, his father was present at his dealership shop and his mother had gone for milling of paddy. He further stated that one of their co-villager Manoranjan Naik informed him at his shop that his wife while cooking had sustained burn injuries. Based on these aspect of his evidence, learned defence counsel forcefully urged that when the presence of accused persons in their house at the crucial time of incident is doubtful, so a very vital link to complete the chain of circumstantial evidence becomes extremely doubtful. Therefore, according to him, all other circumstances taken together in such a position would point a finger of suspicion towards their involvement in the commission of the crime.
In view of the above, coming to the first circumstance, the evidence of D.W.1 needs to be evaluated to find out as to how far his evidence is acceptable in probablising their plea of alibi. It may be reiterated that accused persons except taking a stand of denial and false implication have not specifically taken a "plea of alibi" in their statement under Section 313 of the Cr.P.C. His evidence does not disclose that the house of Manoranjan situates near their house, unlike the houses of Tutu Pothal, Pradeep Patra and Subas Mandal so as to draw out a presumption that Manoranjan derived his first hand knowledge about sustaining of burn injuries by the deceased and report about the same to accused Raj Kumar at his shop. Moreover, said Manoranjan had surprisingly not been examined to provide support to the evidence of D.W.1. Over and above, he claimd to have lodged a written report before the police authority of Jamda Police Station to the above aspect. But, not furnishing a copy of such report raised a fair amount of suspicion on such claim. Moreover, there is no specific or positive aspect from his evidence to hold that the store room of their house was used as the kitchen, on the date of incident temporarily or prior to that regularly to prepare food, except the evidence that one of the rooms of their house, which explicitly ruled out their claim that the death of the deceased was accidental while cooking. Therefore, in consideration to the above, the evidence of D.W.1 could not be taken as free from suspicion and no amount of safe reliance could be attached to his evidence to accept their plea of alibi. Hence, the trial court hold that defence had failed to substantiate or probablise even their plea of alibi, so that their presence in their house at the time of incident could be taken to be doubtful.
Now coming to the factum of motive. At the outset, it would be apposite to put-forth the settled legal position on the point. Motive has great significance in a case involving circumstantial evidence. In absence of any other circumstantial evidence, motive alone would not be sufficient to convict an accused. Reference in this regard can be had to the decision of the Hon'ble Supreme Court in the case of Bakhshis Singh vrs. State of Punjab Decided on 6th August, 2013 in Criminal Appeal No.1110 of 2009. In paragraph-34 of the said judgment, it has been held that motive may not necessarily be direct. It is not possible to determine the exact cause of motive or the exact factor, which impelled the motive. While high degree of animosity is established, the existence of the motive may be taken to be established.
Keeping in view the above legal principles, on going through the evidence of P.W.6, the trial court holds that prior to one month of the date of the death of the deceased, he alongwith other villagers had recovered her from a well nearby the house of accused persons. It was evident from the evidence of P.W.10, a Newspaper hawker, whose house is at a distance of about five hundred to six hundred meters from the house of accused persons intervened by ten to twelve houses that at the morning hour, on the date on which the deceased died, he found her to be coming from the side of village Harilabeda in crying state. On his asking, Arati told him that her husband has deserted her. Near Bombay Chhaka (square) of their village, he also found the accused Raj Kumar was following her at a distance of about hundred meters apart. He asked him to take his wife to their house. Accordingly, he took her with him. Around 4.00 P.M. on that day, he heard that Arati had died in the house of the accused persons. On his going there with police personnel, he found her dead body was lying on the floor of one of the rooms in burnt condition. Thus, from the practically uncontroverted evidence of P.Ws.6 and 10, it was clearly conceivable that all was not well between the spouse (accused Raj Kumar and deceased Arati). Aforesaid aspect of evidence also goes to suggest or on that basis it could very well be presumed that there was no cordial relationship of accused persons with the deceased prior to her unnatural death, which could be motive for the crime.
The trial court further mentioned that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. It was the undisputed fact that the deceased being the wife of accused Raj Kumar was residing jointly with him and other co-accused persons in the case house prior to the date of her unnatural death. Moreover, as discussed above, accused persons had failed signally to probablise their defence stand of plea of alibi. In such circumstance, on evaluation of evidence of prosecution witnesses, there could be no room of doubt that accused persons were with the deceased in their house just prior to her unnatural death. That apart, the evidence of prosecution witnesses coupled with the reflection in the inquest report (Ext.2/1), the dead body of the deceased was found in burnt condition in one of the rooms of the house of accused persons used as store room. In that view of the matter, it was imperative on the part of accused persons to explain as to how and in what circumstance the dead body of the deceased was available in their house, as per requirement of the provision of Section 106 of Evidence Act. In such view of the matter, the trial court held that the accused persons with a view to discharge their such legal burden had not at all offered any cogent, satisfactory or probable explanation during their examination under Section 313 of the Cr.P.C., except resorting to a plea of denial, which certainly goes a long way in providing a link about their involvement in the commission of the offence of death of the deceased, specifically when the defence stand that the deceased died while cooking food has been negatived as above.
Now moving on to the circumstance of recovery of incriminating materials from the room, where the dead body of the deceased was found lying. In this respect, the trial court pointed out that the evidence of Scientific Officer (P.W.18) and the I.O.(P.19) disclosed that on 13.3.2014 at about 12.10 P.M. the door of the room, where the dead body was lying was made to open in presence of the Executive Magistrate by applying force, as it was locked from inside. Thereafter, P.W.18 collected few burnt wearing clothes, one half burnt match stick, one white colour jerrycane (without cap), emitting smell of kerosene oil and few plastic boxes (daba), which were lying near the dead body. He also found in the room one crowbar having a length of five feet and five inches sticked with mud at its both end. It was also forthcoming from his evidence that the construction of the room was going on and the bricks of one of the windows were found broken and few bricks thereof had fallen outside the room. He also collected sample earth of the broken window and handed over the same to the I.O., who in his turn sent those incriminating materials to S.F.S.L., Rasulgarh, Bhubaneswar. The aforesaid evidence of P.W.18 was testified from his report, Ext.7.
On perusal of his report, it transpired besides above mentioned collected incriminating materials, he had found in the room two numbers of wooden rack, one wooden bench, one three wheel cycle, one kerosene stove and some plastic bags. Of course, both of them were fair enough to admit that they had not seized the kerosene stove available in the room alongwith the other sundry articles. But, the non-seizure of the same was of no consequence in as much as there was no suggestion from the defence to them that it was not seized by them deliberately even if it was in working condition. Secondly, it might be reiterated that the defence had not proved or probablise even that the store room in question was being utilised by them for the purpose of preparing food on the date of incident or prior to that. Chemical examination Report, Ext.9 clearly goes to confirm that all the incriminating materials, except sample mud collected from the broken window, either having traces or smell of kerosene oil. Over and above, the physical characteristic of the sample earth/mud collected from the broken window was found to be similar to the mud spreading on to the crowbar.
Giving the description of the store room in question PW.18 in his report (Ext.7) had specifically mentioned that it was having a door and three windows. Of which, one on the western side and the two on its eastern side. One of such window on the eastern side was covered with bricks and few bricks were found lying outside of the room making a gap of three feet three inches x two feet seven inches. The height of the same from the ground was six feet eight inches. The description of the room as given to by him clearly goes to tally with the spot map (Ext.8) prepared by the I.O. It could further be visualised from the spot map that the western side window opened to the Puja room, whereas the eastern side windows to an open field. Thus, from the above, it could very well be held that the circumstances of incriminating materials also provide a link with regard to involvement of accused persons in the unnatural death of the deceased.
On an appraisal of evidence on record as stated above, the trial court has held that the prosecution has miserably failed to establish any of the charges under Section 498A/304/406/34 of the I.P.C. and Section 4 of the D.P. Act leveled against all the four accused persons. Accordingly, all the accused persons were acquitted of the aforesaid charges by the trial court. The trial court further held that the prosecution had failed to establish the charge under Section 302/34 of the I.P.C. against accused Dhanpati @ Parameswar Dutta, Smt. Sandhyarani Dutta and Rakesh Kumar Dutta. Accordingly, they were acquitted of the said charge by the trial court. However, the trial court held the accused Raj Kumar Dutta alone guilty of the offence under Section 302 of the I.P.C. and convicted him as stated supra.
III. SUBMISSIONS ON BEHALF OF THE APPELLANT:
Learned counsel for the Appellant submitted that in this case four accused faced the trial for commission of offences punishable under Sections 498A/ 304B/ 302/ 406/ 34 of the I.P.C. and Section 4 of the D.P. Act. Out of them, except the present Appellant, other three accused persons were acquitted of all the above charges. However, the present Appellant only has been convicted under Section 302 of the I.P.C. for commission of murder of his wife.
He further submitted that court below has failed to appreciate the stand of the Appellant in as much as there was no foundation for initiating the proceeding of the present nature. The F.I.R. story is not supported with any corroboration. In the absence of any corroboration, learned court below should not have relied upon the evidence of P.Ws.6 and 10 and held them the witnesses to have last seen the deceased with accused appellant. There is no direct evidence to implicate to present Appellant with the crime and there is no role of the present Appellant for the offence charge against him. It was also submitted that there is no eye-witness as regards the commission of alleged offence by the accused Appellant. The case is based on circumstantial evidence and the death of the deceased was suicidal in nature.
He further submitted that the learned trial court has held that the death of the deceased was homicidal in nature and found the Appellant is the author of the crime only based upon the theory of last seen together which resulted into the death of the deceased, which is illegal, improper, unjust and liable to be set aside. P.Ws.6 and 10 are witnesses to have last seen the deceased with the Appellant. But the above witnesses have not stated about the fact which they have deposed in the court and also before the police. The Investigating Officer while conducting the investigation in a slip-shod manner which is a material discrepancy and the evidence of witness is to be discredited. Therefore, the conviction and sentence passed by the learned trial Court is otherwise bad, illegal, improper, unjust and liable to be set aside.
It was also submitted that there is a long gap between the last seen and date of occurrence. So, absence of any cogent proof from the side of prosecution cannot be ruled out. Therefore, the finding of the learned trial Court and the basis of the last seen theory is otherwise bad, illegal and improper.
He further contended that the deceased has committed suicide by pouring kerosene herself, because the evidence of P.Ws.6 and 10 reveals that, the deceased has attempted twice for committing suicide earlier. Therefore, holding the Appellant guilty of offence and the author of the crime by the learned trial court is otherwise bad and liable to be set aside.
It was also submitted that the prosecution has miserably failed to bring home the charges under Section 498A/ 304B/ 406/34 of I.P.C read with Section 4 of the D.P. Act against all the accused persons. Therefore, they were acquitted of the said charges by the learned trial court. However, the learned trial court has been pleased to hold the present Appellant alone guilty of commission of the offence of homicidal death of his wife and convicted him under Section 302 of I.P.C. only on the basis of the evidence of P.Ws.6 and 10. Therefore, the conviction and sentence of the Appellant passed by the learned trial court is liable to be set aside.
So far as the circumstance of motive is concerned, there was no cruelty, torture and demand of dowry against the deceased. No motive or ill will of the Appellant has been investigated or proved in this case. So, there is a clear cut of failure of link in the chain of circumstance relating to murder of the deceased. Therefore, the judgment and order of conviction passed by the learned trial court is liable to be set aside.
The accused Appellant during his examination under Section 313 of the Cr.P.C. was in complete denial of the crime. The present Appellant has categorically stated that he was present in his stationary shop at a distance of three kilometers away from their house at the time of occurrence. It is a clear case of suicide by pouring kerosene by the deceased herself and the death of the deceased is suicidal in nature. Therefore, the order of conviction and sentence passed by the trial court based on circumstance evidence is liable to be set aside.
IV. SUBMISSIONS ON BEHALF OF THE STATE:
On the other hand, learned counsel for the State submitted that the present Appellant and three other stood for trial and during the course of trial as many as 19 witnesses have been examined. The present accused/Appellant was also examined under Section 313 of Cr.P.C.. After taking evidence from the side of prosecution as well as defence, the learned trial court framed the issues to establish the involvement of the accused in crime. So far as the above stated five points framed by the trial court is concerned, the learned trial court categorically discussed each evidences of the P.Ws. and finally gave finding that prior to the present occurrence there was an incident happened one month back where the deceased was pushed in a well by the Appellant and his family members and as per the evidence of P.W.6 the deceased was rescued from the well with the help of other villagers one month prior to the present incident. This part of the evidence of P.W.6 proved the factum of cruelty inflected on the deceased. So far as discontentment of the present Appellant with the deceased is concerned, the evidence of P.W.10 who is a Newspaper hawker is very much important. It is the clear case of prosecution that the deceased Arati has died in the house of the Appellant on 12.03.2014 sustaining burn injuries within a period of one year three months of her marriage and there has been an allegation of demand of dowry at the time of marriage and also after the marriage which clearly prove the role played by the present Appellant for commission of crime under Section 302 of I.P.C.
He further submitted that the learned trial court after evaluating the evidences has come to the finding that prosecution has failed to bring home the charges under Section 498A/ 304B/ 406/34 of I.P.C read with Section 4 of the D.P. Act against all the accused persons. Finally, the learned trial court has proceeded to find out whether the offence under Section 302/ 34 of the I.P.C. would be attracted or not while discussing the materials i.e. the evidences of P.Ws., material object exhibited and the complicity of the present appellant in such crime. Admittedly, there is no independent eye witness to the occurrence. In order to establish the said charge, the learned trial court has framed six circumstances as mentioned supra.
Supporting the impugned judgment, learned counsel for the State contended that the conviction has been passed in the present case based on the circumstantial evidence. Discussing some references in this regard, the learned trial court proceeded on to analyze the evidences collected during the trial. The statement recorded under Section 313 of the Cr.P.C. was first point out by the defence. So far the principle of plea of alibi is concerned, the learned trial court has rightly held that the incident has taken place in the house of the Appellant and cause of death is intensive burn injury. In order to establish the plea of alibi, the defence relied on the evidence of the D.W. to find out how far the evidences acceptable. Accordingly, the learned trial court has given the finding that the statement recorded under Section 313 of the Cr.P.C. does not speak about the plea of alibi and rather, the same was introduced through the evidence of DW.1.
Apart from the above mentioned evidences, the learned trial court has also held that so many incriminating materials found near the dead body goes to show the clear involvement of the Appellant. Although the door of the room where the incident took place was found bolted from inside, but the other circumstances lead to strong assumption that after the occurrence the Appellant in order to give it a clear picture of self-emulsion had planted some material objects inside the said room. The learned trial court has found during the course of taking evidences that a few burn wearing clothes, one half burn match stick, one white color jerry cane without cap emitting smell of kerosene and few plastic boxes. He also found that one crowbar having a length of 5ft 5 inches stick mud at its both end. It is also forth coming from the evidence of P.W.18 that the construction of the room was going on and one of the window was found broken and few bricks had fallen outside the room.
On a clear analysis of above circumstances and the evidence available to that respect go to show that on the date of occurrence there was a force applied inside the room between two persons as a result of which some bricks attached to the wall of the said room had fallen and lying outside the wall. The crowbar found inside the room and the mud stick to it is very relevant because the mud used in the construction of the wall in the room is similar to that of the mud found in the crowbar. This implies a clear case of using kerosene for killing of the deceased by the Appellant. So far as bolting of the door from inside is concerned, nowhere the defence had tried to make out the case of suicide. In the absence of such plea from the side of the defence, it is not necessary to discuss the material available. However, bolting of door from inside is not a ground or circumstances for acquittal of the Appellant as the spot of occurrence is the store room and it is an under-constructed room and it is possible that after occurrence one can easily put the door lock from inside.
In view of the aforesaid circumstances, the finding as discussed in paragraph-19 of the impugned judgment is very relevant. Therefore, the appeal preferred by the Appellant assailing the impugned judgment passed by the trial court may be dismissed.
V. COURT’S ANALYSIS AND REASONS:
The case in hand is based on circumstantial evidence especially the last seen theory which has been elicited from the evidence of P.Ws.6 and 10. The accused persons during the examination under Section 313 of the Cr.P.C. had fairly admitted about the marriage of the deceased with the present Appellant. But they had denied about the demand of dowry and their involvement with the death of the deceased. Though they had taken a specific plea that the deceased’s death occurred due to burn injuries out of suicide. However, the deceased was subjected to cruelty and physical torture after the marriage because of non-fulfillment of dowry demand as reportedly has been extracted by the prosecution. The factum of cause of death of the deceased due to burn injuries inflicted by the accused by pouring kerosene oil has also been clearly brought in by the prosecution.
In order to substantial the charges, as many as 19 witnesses have been examined by the prosecution. P.W.1 is the informant and he alongwith P.W.16 are the paternal uncles of the deceased. P.W.4 is her mother, P.Ws.5 and 14 are her aunts (Khudi). PW.15 is her maternal uncle. P.Ws.2 and 7 are the witnesses to the seizure of gift items made by the Investigating Officer (P.W.19). P.W.8 is the scribe of the F.I.R. P.Ws.3, 6, 9, 10 and 13 are the co-villagers of the accused persons. P.Ws.3 and 13 are post occurrence witnesses. P.W.6 was the person who rescued the deceased from the well along with other villagers one month prior to the incident which means there was previous attempt by the deceased who jumped into the well due to torture by the accused/ Appellant and his family members. P.W.9 is a witness to the seizure of marriage invitation card. P.W.10 is a Newspaper hawker, who had seen the discontentment of accused Raj Kumar with the deceased on the date of incident. P.W.11 is a co-villager of the informant. P.W.12 is the priest from the side of the bride. P.W.17 is the doctor of Sub-Divisional Hospital, Rairangpur, who conducted the post-mortem examination. P.W.18 is the Scientific Officer, D.F.S.L., Baripada, who collected the incriminating materials from the spot. The accused/ Appellant Raj Kumar has been examined as a defence witness.
It is a fact that the wife of the accused/ Appellant has died in the house of the accused persons on 12.03.2014 after sustaining burn injuries. The said occurrence took place within one year three months of their marriage. The allegation of demand of dowry from the side of the accused persons is also very prominent. The pertaining question for consideration by this Court is whether the death of the deceased is homicidal or suicidal. In order to answer that question, the evidence of Dr. Debendra Nath Tudu (P.W.17) who conducted autopsy on the dead body of the deceased along with Dr. Laxmipriya Pradhan of Sub-Divisional Hospital, Rairangpur are very pertinent which was conducted on 13.03.2014 around 3.50 P.M. As per their finding, the body was extensively burnt except the feet portion, skin with muscle split on flexer aspect of both hips, both arms and elbows. All hairs on the body were charred. There was no clotted blood in the muscle splitted and no extra vessels of blood from the surrounding tissue. The entire burn area of the body were hard, tinged and black. External genitalia looks swollen. On dissection- scalp hard and black in colour. Skull was intact and brain substance congested. Trachea contained black particles. Lungs were shrunken, blackish and red in colour. On a cut section of lungs dark red colour blood present. Heart pale with small amount of dark colour of blood. Liver, Spleen and kidneys were pale and congested. Urinary bladder was empty, stomach congested and contained thick dark colour liquid. Uterus intact having twenty weeks of gestation. On cut, section of it a male dead foetus was found. It has been opined by him that all the burn injuries were ante-mortem in nature. More particularly with respect to the cause of death, he has opined that the death was due to extensive burn and shock and the said death took place within thirty-six hours from the time of their post-mortem examination. This facts established the Section 304B of the I.P.C. which captured the following ingredients:
“(i) The death of a woman should be caused by burn or bodily injury or otherwise than under normal circumstances;
(ii) Such a death must have occurred within seven years of her marriage;
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband;
(iv) Such cruelty or harassment must be for or in connection with demand of dowry;
(v) Such cruelty or harassment is shown to have been meted out to the woman ‘soon before’ her death.”
On examination of the above ingredients, the presumption of dowry death as prescribed under Section 113-B of the Evidence Act can be drawn, if the aforesaid ingredients are established.
On perusal of deposition of P.W.6 who stated that the deceased died at the house of the accused persons though he has not stated as to why she died. But the said witness has also recalled the previous incident of recovery of the deceased from nearby well just prior to one month which makes the presumption quite closer to the reality. Similarly, the statement made by P.W.10, a Newspaper hawker, who had seen Arati (deceased) was coming from the side of village Harilabeda in a state of crying. He found that at Bombay Chhak of their village, the accused was trying to convince her to take back to their house. At around 4.00 P.M. on the same day he heard that Arati had died in the house of the accused persons due to burn injuries. Similarly, the evidence of P.Ws.4 and 6 also reiterated the fact that there was demand of dowry and consistent quarrel by the accused with the deceased.
The Aunt (P.W.5) of the deceased has also disclosed in her deposition that the deceased Arati had come to their house to attend the marriage function of her elder sister followed by her husband. During that time also she was found to be upset because of the constant quarrel and torture brought out to her by the accused/ Appellant and his family members. When they asked the accused/ Appellant Raj Kumar about the same, he had assured them to treat her well and with that promise, he took Arati with him after the marriage function was over. Two months thereafter, the parents of the deceased had gone to their house and witnessed the quarreling episode of the accused persons with them. He has also deposed that at that time also the parents of Arati wanted to take their daughter along with them. But, the accused persons put-forth the condition like giving them the amount of expenditure incurred in the marriage. P.W.5 in her cross-examination has fairly admitted that she did not state before the I.O. about her finding the deceased who was upset and she had told her that the accused persons were quarrelling regularly on account of dowry demand. The maternal under of the deceased (P.W.15) also stated that he used to hear from his sister (P.W.4) that the accused persons were subjecting the deceased to cruelty. But, but such claim also clearly falsified from his own evidence in as much as in his cross-examination, he fairly admitted that he had not spoken about the said aspect to the I.O.
In such view of the matter, the learned Additional Sessions Judge, Rairangpur has not come to a definite conclusion regarding the allegation of commission of offence under Section 498A/34 of the I.P.C. He has also not reached in a conclusion regarding the charges under Sections 498/304B/406/34 of the I.P.C. and Section 4 of the D.P. Act leveled against all the four accused persons giving them the benefit of doubt under Section 235 (1) of the Cr.P.C. The trial court has also not gone ahead with the offence under Section 406/34 of the I.P.C. for misappropriating or converting the ‘stridhan’ properties of the accused by the accused persons, as the prosecution has failed to establish that the accused persons were subjecting the deceased to cruelty or torture on the demand of dowry. As such, the offence under Section 4 of the D.P. Act cannot be attributable to the accused persons.
In so far as the offence under Section 302 read with Section 34 of the I.P.C. is concerned, admittedly, there was no independent witness with respect to sustaining of burn injuries by the deceased. In order to establish the complicity of the accused persons, learned Additional Public Prosecutor had placed importance on the following circumstances:
“(a) The unsubstantiated plea of alibi of accused persons.
(b) Non-cordial relationship of deceased with accused persons prior to her death to be the motive of the crime.
(c) Staying of the deceased in the same house with accused persons prior to recovery of her dead body or last seen together.
(d) Recovery of dead body from the house of accused persons.
(e) Non offering of any plausible explanation by them about recovery of dead body of the deceased from one of the rooms of their house.
(f) Recovery of incriminating materials like half burnt wearing apparel, match stick, jerrycane having smell of kerosene oil and crowbar near the dead body of the deceased.”
When a case rests on circumstantial evidence, all links in the chain must be complete and it should unerringly point towards the guilt of the accused with the absence of reasonable likelihood of his innocence. It is also the fact that when there is suspicion, the approach should be very inclusive so that the court must satisfy itself that the norms of circumstances available in the chain of evidence should unambiguously clear.
The ‘plea of alibi’ had taken by the defence counsel regarding absence of the accused/ Appellant Raj Kumar at the time of occurrence and his claim of presence of the Appellant in his stationary shop which is at a distance of three kilometers from their house. Similarly, his other family members also were out of the house. He further stated that one Manoranjan Naik who had informed him that his wife had sustained burn injuries while he was at the shop. Learned defence counsel had forcefully argued that absence of the accused/ Appellant at the relevant time created suspicion about his complicity in the crime. In order to get some clarification on the issue, the evidence of D.W.1 needs to be evaluated to find out as to how far his evidence is acceptable in probabilising their plea of alibi.
It is also the fact that the accused has not taken the ‘plea of alibi’ in the entire trial except his stand of denial and false implication. The evidence of Manoranjan Naik is slightly on the shaky ground because of the fact that his house is situated near the houses like the houses of Tutu Pothal, Pradeep Patra and Subas Mandal and he had not directly got the information about the death of the deceased and reported the same to the accused/ Appellant. Further, he has not been examined to provide support to the evidence of D.W.1. Moreover, he claimed to have lodged written report before the police authority of Jamda Police Station about the said facts. However, no copy was furnished regarding such report during the trial. Even if the evidence of D.W.1 cannot be treated as free from suspicion. Hence, the plea of alibi as argued by the learned counsel for the defence cannot be taken to add as an argument.
With respect to the factum of motive which is quite clear in this case because of constant torture due to dowry demand. Exact motive has been clearly established in the present case though the motive cannot be taken as a singular circumstance to convict a person. The evidence of P.W.6 also strongly inspired regarding the motive of the present Appellant because they have held that there was no cordial relationship of the accused persons with the deceased prior to her death.
In so far as the last seen theory is concerned, it has been taken as another important circumstantial evidence. In the present case, the gap between the last seen alive of the deceased and her death is very short which rules out the possibility of any other person committing the crime. It is also an undisputed fact that the deceased and the Appellant were residing jointly along with the co-accused persons prior to the death of the deceased. That apart, the evidence of prosecution witnesses coupled with the reflection in the inquest report (Ext.2/1), the dead body of the deceased was found in burnt condition in one of the rooms of the accused persons which was being used as store room. The accused persons in this case having failed to offer any satisfactory explanation during their examination under Section 313 of the Cr.P.C. except the plea of denial, which establish the link of the accused with the crime.
In so far as the recovery of incriminating materials from the room are concerned, P.W.18 collected few burnt wearing clothes, one half burnt match stick, one white colour jerryane (without cap), emitting smell of kerosene oil and few plastic boxes (daba) which were lying near the dead body. The defence has also not proved beyond reasonable doubt about the use of the incriminating materials for preparing food on the date of incident or prior to the incident. Further, the Chemical Examination report (Ext.9) also clearly reflects that the incriminating materials had traces or smell of kerosene oil. The description of the room given by P.W.18 quite tallies with the spot map (Ext.8) prepared by the I.O. Hence, the circumstance of incriminating materials also goes against the accused persons.
Coming to the actual complicity of the accused persons with the death of the deceased, learned defence counsel submitted that the complicity of his client as per the evidence on record regarding commission of the offence of homicidal death is far short from the truth. The evidence of the prosecution witnesses creates a strong suspicion about the involvement of the accused persons is not sustainable. He further submitted that the suspicion cannot be substituted as a legal proof.
The entire scenario as depicted by the prosecution creates a situation in the mind that commission of suicide by the deceased is not at all probable because in case of self immolation in a closed room the victim is likely to run to different nook and corner, writhing with pain by shouting for help and she would try to unhook the hinges of the door. At no stretch of imagination, the victim would gather strength or capability to dig the wall for her exit. Non-recovery of any burnt item, except wearing apparel and a match stick so also the finding of breaking of brick wall of one of the windows of the room, completely rules out the theory of suicide set-forth by the defence. The theory of catching fire while she was cooking can also be ruled out strongly. Hence, the death of the deceased is an outcome of suicide is unbelievable. Further, it cannot be accepted that the offence would be committed by an outsider or intruder without drawing the attention of other inmates of the house and nearby persons or without any hue and cry shriek by the deceased seeking help of others. Had it been so, the Appellant could have come to her rescue as he is the husband who was primarily responsible for her safety and security. Hence, the theory of commission of crime by intruder or third person cannot be accepted.
Similarly, the plea of alibi set up by the accused persons has not been proved. The evidence of P.W.10 as indicated above, keeping in view the proximity of time on the date of occurrence, the manner of commission of the crime and in consideration of the situation of the locked room and the report of the Scientific Officer (P.W.18), it can very well be presumed that the accused persons are the author of the crime. Further, looking at the dimension of the gap/ opening of the broken brick wall of the store room to its eastern side as has been described in the report (Ext.7) of P.W.18 coupled with the spot map (Ext.8) of the I.O. (P.W.19), it can be visualized that after commission of the crime one can easily escape from the locked room by slipping through the opening of the window, by climbing over it by the help of the wooden rack kept nereby it.
As regards the complicity of the accused persons named Dhanpati and Sandyarani is concerned, the trial court has rightly held to be otherwise because of their old age, it was not possible on their part to climb up to the gap of the broken window to a height of more than six feet smoothly and jump out to the adjoining open field therefrom. It is also beyond doubt that such an exercise can easily be undertaken by the other two accused persons named Raj Kumar and Rakesh without being noticed by any person even during the day time. The presence of accused Rakesh at the crucial moment of commission of the crime is also not very much clear from the prosecution evidence. In such view of the matter, the complicity of the accused persons named Dhanpati, Sandhyarani and Rakesh Kumar at the time of commission of the crime along with accused Raj Kumar creates a lot of doubt. Hence, the benefit of doubt may be extended to the said accused persons.
Resultantly, the prosecution has failed to establish any of the charges under Sections 498A/ 304B/ 406/ 34 of the I.P.C. and Section 4 of the D.P. Act leveled against all the four accused persons. Accordingly, the trial court acquitted all the four accused persons from the said charges extending them the benefit of doubt under Section 235(1) of the Cr.P.C.
However, the presence of husband of the deceased in the room is not in dispute. Since the plea of alibi has not specifically been taken at the time of trial and the circumstances narrated above clearly hinges and indicts strongly against the present Appellant. Therefore, the sentence handed out to the Appellant by the learned Additional Sessions Judge, Rairangpur vide the judgment of conviction and order of sentence dated 04.10.2016 passed in Sessions Trial No.20 of 2014 does not deserve any interference by this Court. Accordingly, the impugned judgment of conviction and order of sentence passed by the trial court in the aforesaid case are confirmed.
The Appeal is, accordingly, dismissed.
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