Orissa High Court
Dambarudhar Nial vs State Of Orissa on 17 May, 2023
Author: S.K. Panigrahi
Bench: D. Dash, S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.840 of 2019
(From the judgment of conviction and order of sentence dated
18.08.2018 passed by the learned Additional Sessions Judge,
Dharamgarh in Criminal Trial (Sessions) No.02 of 2016).
Dambarudhar Nial .... Appellant
-versus-
State of Orissa .... Respondent
Advocates appeared in the case:
For Appellant : Mr. G.C. Mohanty, Adv.
-versus-
For Respondent : Mr. S.K. Nayak, AGA
CORAM:
MR. JUSTICE D. DASH
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-11.01.2023
DATE OF JUDGMENT:-17.05.2023
Dr. S.K. Panigrahi, J.
1. The Appellant, in this Appeal, assails the judgment of conviction and order of sentence dated 18.08.2018 passed by the learned Additional Sessions Judge, Dharamgarh in Criminal Trial (Sessions) No.02 of 2016, arising out of C.T. No.108 of 2015 corresponding to Koksara P.S. Case No.49 of Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 1 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 2015 of the file of the learned J.M.F.C., Jaipatna; wherein the learned Additional Sessions Judge, Dharamgarh has convicted the Appellant (accused) for commission of offence punishable under Section 302 of the I.P.C. Accordingly, the accused has been sentenced to undergo imprisonment for life and to pay a fine of Rs.10000/-, in default to undergo R.I for one year more.
I. CASE OF THE PROSECUTION
2. The case of the prosecution in brief is that on 03.03.2014 the informant Udhaba Jal submitted a written report at Koksara P.S stating that his sister had married to the accused 14 years ago. On 25.02.2015 at about 8.00 P.M. the present Appellant poured kerosene and burnt his wife who succumbed to her burn injuries in Bhawanipatna hospital. One Bhaktaram Jal informed the matter to the informant who was working at Sambalpur. At Bhawanipatna Hospital he met the victim Sindhuka who also stated that the present accused had burnt her. At Bhawanipatna hospital written report was submitted and the same was sent to Koksara P.S. upon which Koksara P.S. Case No.49 of 2015 was registered. During investigation, inquest over the dead body was conducted, dead body was sent for postmortem examination, wearing apparels of the deceased as well as accused were also seized. After completion Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 2 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 of investigation, charge sheet was submitted against the accused. While being treated at Bhawanipatna hospital when the doctor saw the condition of the patient to be serious recorded her dying declaration.
II. TRIAL COURT'S JUDGMENT:
3. Upon consideration of materials on record, the trial court framed charge under Section 302 of the I.P.C. against the Appellant Damarudhar Nial. The defence took the plea of denial and false implication.
4. In order to prove the allegation, the prosecution examined as many as 18 witnesses and placed reliance on the documents marked Exts.1 to 13. No defence evidence, oral or documentary, was adduced.
5. P.W. 1 is one police constable before home the I.O. had seized the bed head ticket. P.W. 2 is another seizure witness who did not support the factum of seizure. P.W.3 is the informant who stated to have received the information while he was at Sambalpur from his son Bhaktaram Jal. This witness further stated that he found the victim being treated at Government Hospital, Bhawanipatna and at the said hospital the victim Sindhuka narrated that the present accused set-fire on her after pouring kerosene. P.W.3 further stated that he was informed by victim that when the victim was running here and there Signature Not Verified pg. 3 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 inside the house, the fire from her body also had been caught by the accused. P.W. 4, the son of the informant stated that on 26.2.2015 he heard from his aunt that on the previous day the victim had sustained burn injury and then he went to District Head Quarters Hospital, Bhawanipatna. When he asked regarding the reasons of fire, the victim Sindhuka disclosed that this accused who was the husband of the victim set fire on her by pouring kerosene. After getting such information from the victim, he made a telephone call to P.W.3 who subsequently, lodged F.I.R. P.W.5 did not support the prosecution case and was declared hostile. P.W. 6 is the person before whom the wearing apparels of the deceased were seized. P.W. 7 before whom inquest over the dead body was prepared. P.W.8 did not support any seizure made by police before him. P.W.9 simply heard the matter. P.W.10 was present when police made inquest over the dead body. This witness also happened to be a neighbour of the victim and the accused. He specifically stated that the accused and the victim were not pulling on well and quarreling frequently. This witness is the brother of the accused and further admitted that there was some property related dispute with the accused. P.W.11 is the police Havildar before whom wearing apparels of the deceased were seized. P.W.12 did not support the prosecution case. P.W.13 only heard the matter. P.W.14 is the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 4 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 doctor who conducted postmortem examination over the dead body. He stated to have found burn injury on the chest, both eyes, face and head of the deceased. All injuries were ante- mortem in nature and death was caused due to septicemia and hypoglycemic shock due to burn. P.W.15 is the person before whom the police seized the bed head ticket at District Head Quarters Hospital, Bhawanipatna. P.W.16 is the Surgery Specialist who recorded the dying declaration of the victim in his own hand writing and proved the same in the court. His evidence shows that the dying declaration was made in presence of a staff nurse. P.W.17 is the staff nurse before whom the dying declaration was made by the deceased. P.W.18 is the investigating officer.
6. Placing reliance on the evidence of the family members of the deceased i.e. P.Ws.3 and 4 stated to have been supported by Ext.8 i.e. the dying declaration of Sindhuka recorded by the Doctor P.W.16 before the staff nurse P.W.17 and other incriminating circumstances, the trial court held the Appellant guilty under Section 302 of the I.P.C. and sentenced him as stated supra.
III. SUBMISSIONS ON BEHALF OF THE APPELLANT
7. In assailing the impugned judgment, learned Counsel appearing for the Appellant submitted that there is no Signature Not Verified pg. 5 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 occurrence witness nor prosecution could examine any witness to show that on the alleged date, the accused by pouring kerosene burnt Sindhuka and as such the prosecution case falls in limeni. He further submitted that the independent witnesses such as P.W.5 (Chhabi Nial) and P.W.12 (Purna Chandra Nial) have not supported the prosecution case and the seizure witness such as P.W.8 has also not supported the factum of seizure out of 18 witnesses.
8. He further submitted that there is no other witness except the informant Udhaba Jal and the dying declaration of the victim implicating the Appellant as an accused in the alleged crime. It was also submitted that the accused and the deceased were maintaining happy conjugal life since the date of their marriage, as per the deposition of P.W.2. The accused tried to save his wife (deceased) from the fire as a result he was also affected by the fire and also received some burn injuries and consequently, he was also admitted in the Hospital.
9. It was further submitted that the trial court without going to the evidence available on record proceeded on the basis of the dying declaration of the victim recorded by the Doctor of the Hospital. This is totally baseless and against the weight of the evidence on record. Hence, the judgment of conviction and the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 6 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 order of sentence passed by the learned Additional Sessions Judge, Dharamgarh in the aforesaid case may be set aside. IV. SUBMISSIONS ON BEHALF OF THE STATE
10.Per Contra, learned Counsel for the State vehemently contended that the accused is found to be guilty of commission of murder of his wife and punishable under Section 302 of the I.P.C., as there is evidence that only the accused and the deceased were staying in that house on the fateful day. He further submitted that in any case, evidence of victim is the best piece of evidence and ordinarily no victim would rope in any innocent person to be the author of the crime leaving aside the real culprit. Just after being admitted to hospital or at the first meeting with her family member i.e. P.Ws.3 and 4, the victim Sindhuka expressed before them that this accused Dambarudhar Nial who was her husband was the real culprit. Further, the statements of P.Ws.3 and 4 got supported by Ext.8 i.e. the dying declaration of Sindhuka recorded by Doctor P.W.16 before the staff nurse P.W.17. Apart from that evidence of the I.O. PW 18 shows that during inquiry when he visited the spot i.e. the house of the accused, he found a jerrycan with some kerosene in it which is exactly as per allegation of the deceased that after pouring kerosene the accused set her ablazed by match stick. In such view of the matter, he Signature Not Verified pg. 7 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 submitted that there appears no cogent and reasonable ground to interfere with the impugned judgment of conviction and order of sentence rendered by the learned trial court.
V. COURT'S ANALYSIS AND REASONS:
11. In the present case, it is alleged that the deceased had married to the accused about 14 years ago and the tragic incident of alleged burning of the deceased occurred on 25.02.2015 by pouring kerosene on her body and was ablazed by a matchstick. P.W.4 informed to P.W.3 who is his brother. Upon getting information, P.W.3 rushed to the hospital and found her sister was under treatment at District Headquarters Hospital, Bhawanipatna. The deceased prior to her death informed P.W.3 that the present Appellant was the real culprit who ignited the matchstick after pouring kerosene. The police made inquest over the dead body of the deceased. The Doctor P.W.14 conducted post-mortem examination over the dead body of the deceased and submitted post-mortem report which is marked as Ext.7. The Doctor found that there was Dermo epidermal burn present on chest, below thigh, arm and hand, abdomen and other parts of the body. It was further reported that the burn injuries were ante-mortem in nature and cause of death might be due to septicemia and hypodermic shock caused by such burning.
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR
pg. 8 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33
12. In the present case, vital evidence is presented through P.Ws.16 and 17. P.W.16 is the Surgery Specialist of District Head Quarters Hospital, Bhawanipatna. His evidence reflects that on 02.03.20215 while the victim was under treatment, her condition started getting deteriorated. Hence, he suspected that the victim might not survive. He thought of recording her dying declaration in presence of the witnesses and the dying declaration was recorded in his own hand writing which is marked as Ext.8. On perusal of the dying declaration, it is evident that P.W.16 himself recorded the statement on 02.03.2015 at about 7.30 P.M. in the presence of a staff nurse named Lilima Dash wherein it has been stated that "her husband poured kerosene on her body and ignited by matchstick" for which she was in burn. After recording of such statement, the contents were also read over before the patient and she put her L.T.I. on the said Ext.8. It is unambiguously clear that the patient was in burning condition at the time of recording of dying declaration and she strongly indicted against the present Appellant who was her husband. Though the Doctor (P.W.16) has not cross-examined by the prosecution, the factum of his recording of dying declaration cannot be lost sight of. The same fact has also been expressed before the P.W.3 and 4 indicting her husband. Hence, there is no iota of doubt that the deceased has been burnt by somebody else or Signature Not Verified pg. 9 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 by some other person or under some other circumstances. It is also the fact that the deceased and the accused were staying together in a house and there was none who had witnessed the occurrence. The statement made before P.Ws.3 and 4 also gets enough strength from the dying declaration (Ext.8) recorded by the doctor and the said fact has been recorded before a staff nurse.
13. Further in the present case, the victim's statement is the best piece of evidence. It is intriguing to note that why should the victim will rope in an innocent person before her death. It is also a fact that when the I.O. (P.W.18) visited the spot i.e. the house of the accused, he found a jerrycane with some kerosene which was found lying in the house which speaks volume about the factum of death by burning. The argument on behalf of the accused regarding the fact that the accused had also received some burn injuries which might have caused for saving the victim. Being a human being, the accused might have got some emotional weakness to save the deceased after she was ablazed by him. The fact of injuries on his head cannot erase the blameworthiness of the accused. The argument by the defence on the issue of mens rea or intention of commission of the crime does not hold water in the present case. Further, the deceased and the accused had quarreled on the previous night since the present Appellant was suspecting Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 10 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33 her character and torturing her. These facts also strongly linked to an inescapable conclusion that the Appellant had great role in setting the fire ablazed on her. In addition, P.W.10 who is a neighbor of the Appellant has also stated that the accused and the deceased were not pulling well and were quarrelling very frequently that is a pointer to his indictment. Differences between them has been on its zenith leading to such a heinous crime by the accused which demonstrates his brutal instinct while committing the crime.
14. In the result, the prosecution has successfully proved the case beyond reasonable doubt and held that the accused/ Appellant on the fateful day i.e. on 25.02.2015 while the quarrel between them was in its ascendency, the Appellant set the deceased on fire by pouring kerosene. Hence, the finding of the trial court against the present Appellant with regard to the commission of offence under Section 302 of the I.P.C. is not erroneous. Learned Additional Sessions Judge, Dharamgarh while hearing the rival submission on the issue of sentence has not shown any leniency to the victim and accordingly, sentenced the Appellant to undergo imprisonment for life and to pay fine of Rs.10,000/- failing to pay the fine, he will undergo R.I. for one year more under Section 302 of the I.P.C. Signature Not Verified pg. 11 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33
15. Accordingly, we do not find any fault with the conclusion arrived at by the learned Additional Sessions Judge, Dharamgarh vide judgment and order dated 18.08.2018 passed in Criminal Trial (Sessions) No.02 of 2016. Therefore, we confirm the judgment of conviction and order of sentence dated 18.08.2018 passed by the learned Additional Sessions Judge, Dharamgarh in Criminal Trial (Sessions) No.02 of 2016.
16. Accordingly, this Appeal is dismissed.
( Dr. S.K. Panigrahi ) Judge D. Dash, J. I agree.
( D. Dash ) Judge Orissa High Court, Cuttack, Dated the 17th May, 2023/ B. Jhankar Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 12 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:33