Sunita Mundari vs State Of Odisha on 4 July, 2024

[Cites 5, Cited by 0]

Orissa High Court

Sunita Mundari vs State Of Odisha on 4 July, 2024

Bench: S.K. Sahoo

IN THE HIGH COURT OF ORISSA, CUTTACK

JCRLA No.12 of 2014

An appeal under section 374 Cr.P.C. from the judgment and
order dated 20.12.2012 passed by the Additional Sessions
Judge, Rourkela in Sessions Trial No.132 of 2011.
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Sunita Mundari ....... Appellant

-Versus-

State of Odisha ....... Respondent

For Appellant: - Mr. Biswajit Nayak
Advocate

For Respondent: - Mr. Rajesh Tripathy
Addl. Standing Counsel

-------------------------

P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO

AND

THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH

--------------------------------------------------------------------------------------- --------------------------------
Date of Hearing: 26.06.2024 Date of Judgment: 04.07.2024
-----------------------------------------------------------------------------------------------------------------------

S.K. Sahoo, J. The appellant Sunita Mundari faced trial in the Court

of learned Additional Sessions Judge, Rourkela in Sessions Trial

No.132 of 2011 for commission of offence punishable under

JCRLA No.12 of 2014 Page 1 of 35
section 302 of the Indian Penal Code (hereinafter >I.P.C.?) on the

accusation that on 27/28.06.2011 in village Jhirpani, she

committed murder by intentionally causing the death of her

husband Mangal Mundari (hereinafter, >the deceased?).

The learned trial Court vide impugned judgment and

order dated 20.12.2012 has been pleased to hold the appellant

guilty of the offence charged and sentenced him to undergo

imprisonment for life.

Prosecution Case:

2. The prosecution case, as per the first information

report (hereinafter >F.I.R.?) (Ext.3) presented by Laxmi Badaik

(P.W.15), the second wife of the deceased before the Inspector

in-charge of Jhirpani police station on 29.06.2011, is that she

was married to the deceased since last twenty years. The

deceased used to reside with his first wife (appellant) and their

children in village Jhirpani. The appellant used to quarrel with

the deceased for which the deceased had built a separate house

at Tungritola, Jagda where P.W.15 used to reside. At times,

P.W.15 used to visit the deceased and his children at Jhirpani.

On 27.06.2011, P.W.15 came to the house situated at Jhirpani at

about 8.00 p.m. and after having the dinner, she went to sleep

with the deceased in the inner room. The son of the deceased,

JCRLA No.12 of 2014 Page 2 of 35
namely, Siki (P.W.7) slept in the front/passage room adjacent to

the spot room while the appellant along with her daughter Binika

slept on the outer verandah. Around the midnight, when P.W.15

woke up to urinate, she found the appellant in the front/passage

room where P.W.7 was sleeping. Finding the appellant in that

room, P.W.15 enquired from her as to why she was standing

there but the appellant did not give any reply. While she was

returning after passing urine, she heard the shout of the

deceased and rushed inside the house and found the appellant

coming out of the inner room with severe burnt injuries in a

naked condition. In the meantime, P.W.7 woke up and helped

the deceased to lie on the ground. P.W.15 along with P.W.7 tried

to extinguish the fire from the body of the deceased. P.W.15

then enquired from the deceased as to how he caught fire on his

body to which the latter replied that the appellant poured

kerosene on his body and set him on fire. P.W.7 called an auto-

rickshaw in which he along with P.W.15 took the deceased to

Sahu clinic and then to C.W.S. Hospital, however, the doctor

referred the deceased to Ispat General Hospital, Rourkela and

accordingly, the deceased was admitted in I.G.H., but during the

course of the treatment, on 28.06.2011, the deceased

succumbed to his injuries. P.W.15 stated in the F.I.R. that the

JCRLA No.12 of 2014 Page 3 of 35
appellant poured kerosene and set the deceased on fire for which

he sustained severe burn injuries which led to his death.

On receipt of the written report of P.W.15, the

Inspector in-charge of Jhirpani police station, namely, Anil

Kumar Pradhan (P.W.14) registered Jhirpani P.S. Case No.44

dated 29.06.2011 under section 302 of the I.P.C. and he himself

took up investigation of the case.

During the course of investigation, P.W.14 examined

the informant (P.W.15) and other witnesses and requisitioned

the District Scientific Officer for appraisal of crime scene. He

visited the spot, seized the half burnt clothes and on 30.06.2011,

he arrested the appellant and recorded her statement under

section 27 of the Indian Evidence Act and recovered a green

colour plastic jerrican containing 300 ml. of kerosene near a

brick heap from the backside of the spot house at the instance of

the appellant and seized it as per seizure list Ext.5. He held

inquest over the dead body of the deceased in presence of the

witnesses and prepared the inquest report marked as Ext.1 and

sent the dead body for post mortem examination and forwarded

the appellant to Court. On 10.07.2011, he received the post

mortem examination report marked as Ext.11. On 29.07.2011,

he seized the bed head ticket of the deceased from the I.G.H.,

JCRLA No.12 of 2014 Page 4 of 35
Rourkela as per seizure list marked as Ext.6 and on 26.08.2011,

P.W.14 handed over the charge of investigation to the S.I. of

Police Anima Sahu (P.W.12). On 01.09.2011, P.W.12 seized the

sample packets and the exhibits were sent to R.F.S.L.,

Sambalpur for chemical examination and received the chemical

examination report marked as Ext.10 and on completion of

investigation, submitted the charge sheet under section 302 of

the I.P.C. against the appellant on 25.10.2011.

Framing of Charges:

3. After submission of charge sheet, the case was

committed to the Court of Session after complying due

formalities. The learned trial Court framed charge against the

appellant as aforesaid and since the appellant refuted the

charge, pleaded not guilty and claimed to be tried, the sessions

trial procedure was resorted to prosecute her and establish her

guilt.

Prosecution Witnesses, Exhibits and Material Objects:

4. During the course of trial, in order to prove its case,

the prosecution has examined as many as fifteen witnesses.

P.W.1 Chhotray Mundari is a neighbour of the

appellant who stated that there used to be hot exchange of

words among the appellant, the deceased and P.W.15. He

JCRLA No.12 of 2014 Page 5 of 35
further stated to have come to know that the deceased had

received severe burn injuries for which he came to the hospital

to meet him. Subsequent to the death of the deceased, the

police conducted inquest over the dead body of the deceased

and he is a witness to the preparation of inquest report vide

Ext.1.

P.W.2 Dharam Mundari stated that P.W.15 used to

visit the house of the appellant. He also stated that in the

evening hours of 28.06.2011, he heard that the deceased

received serious burn injuries. He is a witness to the conduct of

inquest over the dead body of the deceased.

P.W.3 Saul Lugun is an auto-rickshaw driver, who

stated that at about 1.15 a.m. of 27/28.06.2011, P.W.7 came to

him and informed that the deceased had received burn injuries

and sought for his help. He further stated that he took the

deceased being accompanied by P.W.7, P.W.15 and daughter of

the appellant Binita to Sahu Clinic at Jhirpani and then to C.W.S.

Hospital at Jagda and as advised by the doctor, they took him to

I.G. Hospital. He also said that the deceased was semi-conscious

at that time. Furthermore, he stated to have learnt from P.W.7

that the appellant had set the deceased on fire. He is a witness

JCRLA No.12 of 2014 Page 6 of 35
to the seizure of half-burnt blanket and mattress as per seizure

list Ext.2.

P.W.4 Prakash Chandra Mundari is the scribe of the

F.I.R., who stated that the deceased and the appellant used to

stay at village Jhirpani and the P.W.15 used to visit their house.

He further stated that there used to be frequent quarrel between

the appellant and P.W.15 and also between the appellant and the

deceased at times. In the morning of 28.06.2011, he came to

know that the deceased had received burn injuries and he had

been taken to the hospital.

P.W.5 Karan Mundari is a neighbour of the deceased

and the appellant. He stated that in the morning hours of

30.06.2011 at Jhirpani police station, the appellant confessed

her guilt and she also revealed that the kerosene was kept inside

a jerrycan which she concealed by the side of a brick heap near

her house. He also stated that the appellant led him and the

police party to the place and gave recovery of the jerrycan.

P.W.6 Archana Mundari is the niece of the deceased.

She stated that on being informed about the incident, she went

to the house of the deceased where she saw the deceased being

shrouded with some clothes and pleading for his life.

JCRLA No.12 of 2014 Page 7 of 35
P.W.7 is the son the appellant and the deceased. He

stated that the deceased used to stay mostly with P.W.15 and

occasionally, visited the Jhirpani house. He further stated that on

the date of occurrence, the deceased along with P.W.15 came to

the house of the appellant and stayed there in the night. During

midnight at about 1.00 a.m., he woke up hearing commotion and

found the deceased severely burnt and was in a naked condition

and then he arranged auto-rickshaw and shifted the deceased to

the hospital and got him admitted in I.G.H., Rourkela.

P.W.8 Taramani Mundari is the sister-in-law of the

deceased. She stated that in the midnight of the occurrence,

P.W.15 came to her house and informed that the appellant had

set the deceased on fire. She went to the house of the deceased

and found him badly burnt. She further stated that he was

pleading for his life but he could not state anything else.

P.W.9 Pahana Oram is a neighbour of the appellant

and he did not support the prosecution case for which he was

declared hostile.

P.W.10 Giri Gouda expressed his ignorance about the

facts which led to the death of the deceased. He is a witness to

the preparation of the inquest report vide Ext.1.

JCRLA No.12 of 2014 Page 8 of 35
P.W.11 Kiran Kumar Nayak was working as the

Assistant Sub-Inspector of Police at Jhirpani police station. He is

a witness to the seizure of bed-head ticket of the deceased from

the I.G. Hospital. He is also a witness to the seizure of samples

made by the scientific team as per seizure list Ext.8.

P.W.12 Anima Sahu was working as the Sub-

Inspector of Police at Jhirpani police station. She is the second

investigating officer in this case and she took over the charge of

investigation from P.W.14. Upon completion of investigation, she

submitted charge sheet against the appellant on 25.10.2011.

P.W.13 Dr. Sandipana Satpathy was posted as the

Medical Officer, S.D. Hospital, Panposh. On police requisition,

she conducted post mortem examination over the dead body of

the deceased and proved her report vide Ext.11.

P.W.14 Anil Kumar Pradhan was working as the I.I.C.

of Jhirpani police station and he is the initial investigating officer

of the case. Upon his transfer, he handed over the charge of

investigation to P.W.12.

P.W.15 Laxmi Badaik is the second wife of the

deceased and also the informant in this case. She was residing at

Jagda and she stated that the deceased used to live either with

the appellant or with her. She also stated that she and the

JCRLA No.12 of 2014 Page 9 of 35
appellant were in visiting terms with each other. She stated

about the dying declaration made by the deceased implicating

the appellant. She is also a witness to the preparation of the

inquest report vide Ext.1.

The prosecution exhibited twelve documents. Ext.1 is

the inquest report, Ext.2 is the seizure list in respect of half

burnt blanket, half burnt mattress and half burnt pati, Ext.3 is

the F.I.R., Ext.4 is the statement of the appellant, Ext.5 is the

seizure list in respect of jerrycan, Ext.6 is the seizure list in

respect of the bed head ticket of the deceased from the I.G.H.

Rourkela, Ext.7 is the bed head ticket, Ext.8 is the seizure list in

respect of one sealed packet containing the portion of burnt

wearing apparel and a match box having match stick and one

sealed packet containing portion of burnt blanket, Ext.9 is the

forwarding letter to R.F.S.L., Sambalpur, Ext.10 is the spot visit

report of Scientific Officer containing rough diagram of the spot

house, Ext.11 is the post mortem report and Ext.12 is the

examination report of Scientific Officer.

The prosecution also proved three material objects.

M.O.I is the half burnt blanket, M.O.II is the packet containing a

match box and half burnt portion of wearing apparels and M.O.

III is the green coloured jerrycan.

JCRLA No.12 of 2014 Page 10 of 35
Defence Plea:

5. The defence plea of the appellant is one of denial.

Defence has neither examined any witness nor exhibited any

document.

Findings of the Trial Court:

6. The learned trial Court after assessing the oral as

well as documentary evidence on record, held that the motive of

the appellant was clear as she was jealous of P.W.15 for having

diverted her husband?s affection from her and had nursed grudge

for over a decade and thus, the motive for the crime has been

established by the prosecution. It was further held that there is

no material on record that the appellant had at any point of time

attended her dying husband. It was further held that though the

occurrence took place in the intervening night of 27/28.06.2011

and the F.I.R. was lodged on 29.06.2011 but since the informant

was concerned with the treatment and recovery of the deceased

husband and after his demise, it would have taken some time to

regain her composure and after spending a night in grief and

bereavement, she thought of reporting the matter to the police,

it can be said that delay has been properly and satisfactorily

explained by the prosecution and it did not affect the prosecution

case. Without discussing the evidence on record as to how far

JCRLA No.12 of 2014 Page 11 of 35
the prosecution has proved each of the circumstances as jotted

down in paragraph 9 of the impugned judgment to drag in the

appellant in the commission of the crime, the learned trial Court

jumped to the conclusion that the appellant is guilty of the

offence punishable under section 302 of the I.P.C.

Contentions of the Parties:

7. Mr. Biswajit Nayak, learned counsel appearing for the

appellant submitted that the case is based on circumstantial

evidence and the main circumstance appearing against the

appellant is the dying declaration stated to have been made by

the deceased before P.W.15 implicating the appellant to have

poured kerosene on him and set him on fire by striking a match

stick, but the evidence of P.W.15 is full of contradictions and

there are many suspicious feature in her evidence and there was

also motive on the part of P.W.15 to implicate the appellant

falsely in the crime and therefore, P.W.15 cannot be said to be

an absolutely reliable witness. He further argued that P.W.15

stated to have noticed the appellant in the inner room (where

she along with the deceased was sleeping) when she woke up at

12.00 midnight and went out to urinate and returned back and

heard the dying declaration from the deceased who was in a

burnt condition, but the evidence of P.W.7, the son of the

JCRLA No.12 of 2014 Page 12 of 35
deceased as well as the appellant who was sleeping in the

adjacent front/passage room to the spot room at the time of

occurrence and also woke up after hearing commotion and called

others to the spot, is totally silent regarding any such dying

declaration being made by the deceased as deposed to by

P.W.15. Learned counsel further argued that the appellant was

sleeping outside on the veranda of the house and P.W.7 has

stated that hearing the shout, the appellant came from outside

and poured water on the deceased and she was also weeping

sitting outside the house and this conduct of the appellant proves

her non-involvement in the crime in question, which has not

been given any importance by the learned trial Court. Learned

counsel further argued that even though P.W.8 has stated that

P.W.15 came and told her that the appellant set fire to the

deceased for which she went to the house of the deceased, but

the same is not corroborated by P.W.15 rather P.W.7 has stated

that he rushed to the house of P.W.8 and gave the information.

Learned counsel further argued that even though P.W.3 has

stated that P.W.7 told him in the hospital that the appellant had

set fire to the deceased but the same can be stated to be a

hearsay evidence inasmuch as neither P.W.7 has stated to have

disclosed any such thing before P.W.3 nor P.W.7 has himself

JCRLA No.12 of 2014 Page 13 of 35
stated to have got any knowledge that the appellant had set fire

to the deceased rather he stated that he had no knowledge as to

how his father (deceased) received burn injuries. Learned

counsel further argued that the jerrican which is stated to have

been seized at the instance of the appellant from the backside of

the spot house near a heap of bricks is a doubtful feature

inasmuch as though P.W.5, a witness to the seizure of such

jerrican has stated that it contained 20 to 30 ml. of kerosene,

whereas the I.O. (P.W.14) has stated in his evidence that the

jerrican was containing 300 mls. of kerosene. It is submitted that

since the kerosene jerrican was lying in an open space and not in

a concealed condition out of visibility of others in normal

circumstances, it cannot be said to be within the exclusive

knowledge of the appellant and therefore, it cannot be utilized

under section 27 of the Evidence Act against the appellant. It is

argued that in view of the suspicious feature available on record

and the nature of circumstances proved by the prosecution, it

cannot be said that the circumstances taken together form a

complete chain so as to irresistibly come to the conclusion that it

is the appellant, who is the author of the crime and therefore, it

is a fit case where benefit of doubt should be extended in favour

of the appellant.

JCRLA No.12 of 2014 Page 14 of 35
Mr. Rajesh Tripathy, learned Additional Standing

Counsel appearing for the State of Odisha, on the other hand,

supported the impugned judgment and submitted that since the

deceased was spending most of the time with P.W.15, who was

the second wife, the appellant being the first wife might have

nursed grudge against P.W.15 and she must have also grievance

against her husband (deceased), which can be said to be the

motive behind the commission of crime. Learned counsel further

argued that the evidence of P.W.15 not only establishes the

presence of the appellant inside the spot room but also the

evidence relating to dying declaration, which is deposed to by

her is very clinching and the same finds place in the first

information report lodged by P.W.15. Learned counsel further

argued that since the appellant did not take any steps to save

the life of the deceased and she did not even accompany the

deceased to the hospital, this conduct is also very relevant which

points towards the guilt of the appellant. Learned counsel further

argued that taking advantage of the absence of P.W.15 from the

spot room for a short period when P.W.15 had gone to pass

urine during the midnight, the appellant committed the crime

and poured kerosene on the deceased, who was sleeping and set

him on fire and left that place and she was found to be having a

JCRLA No.12 of 2014 Page 15 of 35
satisfying smile as deposed to by P.W.15, which are also very

clinching evidence against the appellant. It is further argued that

the wearing apparels of the deceased so also the blanket, which

was found in a burnt condition and the jerrycan were seized by

the police during course of investigation and those were sent for

chemical examination and the report (Ext.12) indicates that

kerosene was detected in all the exhibits which supports the

prosecution case that kerosene was used for setting fire to the

deceased. Learned counsel further argued that the plastic

jerrican was seized at the instance of the appellant from near the

brick heap by the police from the backside of the spot house and

it was within the knowledge of the appellant as there was every

possibility on her part to throw the same after committing the

crime. Learned counsel further argued that there are clinching

circumstances available on record and the conduct of the

appellant and the dying declaration evidence form a complete

chain and it points out towards the guilt of the appellant and

therefore, the learned trial Court has rightly found the appellant

guilty of the offence charged and the appeal should be

dismissed.

JCRLA No.12 of 2014 Page 16 of 35
Principles for appreciation of circumstantial evidence:

8. Adverting to the contentions raised by the learned

counsel for the respective parties, there is no dispute that there

is no direct evidence relating to the commission of murder of the

deceased and the case is based on circumstantial evidence. It is

the settled principle of law as held in the case of Sharad

Biridhichand Sarda -Vrs.- State of Maharashtra reported in

A.I.R. 1984 Supreme Court 1622 that the circumstances from

which the conclusion of guilt is to be drawn against the accused

should be fully established. The facts so established should be

consistent only with the hypothesis of the guilt of the accused

and they should not be explainable on any other hypothesis

except that the accused is guilty. The circumstances should be a

conclusive nature and tendency and they should exclude every

possible hypothesis except the one to be proved. There must be

a chain of evidence so complete as not to leave any reasonable

ground for the conclusion consistent with the innocence of the

accused and must show that in all human probability, the act

must have been done by the accused.

In a case based on circumstantial evidence, there is

always a danger that conjecture or suspicion may take the place

of legal proof. The Court has to be watchful and ensure that

JCRLA No.12 of 2014 Page 17 of 35
suspicion howsoever strong should not be allowed to take the

place of proof. A moral opinion howsoever strong or genuine and

suspicion, howsoever grave, cannot substitute a legal proof. A

very careful, cautious and meticulous appreciation of evidence is

necessary when the case is based on circumstantial evidence.

The prosecution must elevate its case from the realm of >may be

true? to the plane of >must be true?.

The core principles which need to be adhered to by

the Court, while examining and appreciating circumstantial

evidence, have been strenuously discussed by the Hon?ble Apex

Court in the case of Devi Lal -Vrs.- State of Rajasthan

reported in (2019) 19 Supreme Court Cases 447 in the

following words:

<17...It has been propounded that while
scrutinising the circumstantial evidence, a
Court has to evaluate it to ensure the chain of
events is established clearly and completely to
rule out any reasonable likelihood of
innocence of the accused. The underlying
principle is whether the chain is complete or
not, indeed it would depend on the facts of
each case emanating from the evidence and
there cannot be a straitjacket formula which
can be laid down for the purpose. But the
circumstances adduced when considered

JCRLA No.12 of 2014 Page 18 of 35
collectively, it must lead only to the conclusion
that there cannot be a person other than the
accused who alone is the perpetrator of the
crime alleged and the circumstances must
establish the conclusive nature consistent only
with the hypothesis of the guilt of the
accused.=

Whether the testimony of the prosecution witnesses

implicate the appellant in commission of the crime?:

9. The main attack has been made by the learned

counsel for the appellant on the evidence of P.W.15 Laxmi

Badaik, who is the informant in the case. She was the second

wife of the deceased and the appellant was the first wife. P.W.15

has stated that the appellant used to live at village Jhirpani and

on 27.06.2011, she had come to village Jhirpani to the house of

her husband on being called by him and after dinner, she along

with the deceased slept. She further stated that the house of her

husband was having two rooms and in the entrance room, the

son of the deceased and the appellant, namely, Siki Mundari

(P.W.7) was sleeping and she along with the deceased were

sleeping in the inner room. She further stated that the appellant

slept on the front veranda. At about 12 midnight, she woke up

and found the appellant in the inner room where she (P.W.15)

JCRLA No.12 of 2014 Page 19 of 35
along with the deceased were sleeping and when she went to

urinate outside, she heard screaming of the deceased for which

she rushed in and found the deceased with severe burn injuries

and he was standing naked at the door and shouting for help.

The appellant had come out of the inner house and she was

having a satisfying smile. P.W.15 further stated that her

deceased husband told her that the appellant poured kerosene

on him and set him on fire by striking a match stick. She further

stated that the room where they were sleeping was complete

dark. Then she wrapped a chadar around the deceased and took

him to Sahu clinic at Jhirpani but since the doctor denied to

entertain him, she took the deceased to the C.W.S. Hospital at

Jhirpani in auto-rickshaw but he was not treated there and then

he was taken to the I.G.H., Rourkela where he was treated but

during course of treatment, he expired in the afternoon of

28.06.2011 and accordingly, she lodged the report, which was

scribed by P.W.4 at Jhirpani police station.

Whether evidence relating to dying declaration as

deposed to by P.W.15 can be acted upon?

9-A. P.W.7 was sleeping in the adjacent room where the

occurrence in question took place, but his evidence is that when

hearing hullah and commotion, he woke up at about 1.00 a.m.,

JCRLA No.12 of 2014 Page 20 of 35
he found his father (deceased) to be badly burnt and he had no

clothes on his body and P.W.15 was near him but he again did

not find the appellant anywhere near. P.W.7 stated that he

covered the deceased by means of a blanket and in desperation,

rushed to the house of P.W.8 and then he came to P.W.3 and

took the deceased in an auto-rickshaw to Sahu clinic and then to

C.W.S. Hospital and then to I.G.H where the deceased was

admitted. The evidence of P.W.7 is totally silent regarding any

dying declaration being made by the deceased either at the spot

or at any place till he breathed his last.

The spot map so also diagram of spot house

prepared by Scientific Officer (Ext.10) indicates that if a person

intended to come to the inner room where the deceased and

P.W.15 were sleeping, then he has to first enter into the

front/passage room where P.W.7 was sleeping from the outer

verandah and then there is a single door through which he could

enter into the spot room. It is the case of P.W.15 so also P.W.7

that the appellant was sleeping on the outer verandah of the

house. P.W.7 has stated that the entrance room, where he was

sleeping, was also used as kitchen and that was also a dark

room. He further stated that hearing his shout, the appellant

came from outside and poured water on the deceased and the

JCRLA No.12 of 2014 Page 21 of 35
appellant was also weeping outside of the house and P.W.7

further stated that he had no knowledge as to how the deceased

received the burn injuries.

Learned counsel for the State argued that since

P.W.7 was the son of the appellant, he might have refrained

himself from implicating his mother (appellant) in the crime. It is

very difficult to accept such a contention inasmuch as P.W.7 has

not been declared hostile and his evidence cannot be discarded

merely because he is related to the appellant as her son,

inasmuch as it cannot be lost sight of the fact that the deceased

was his father and there is no proposition of law that relatives

are to be treated as untruthful witnesses. It is quite unlikely that

close relatives of a deceased person would falsely implicate an

innocent person for a heinous crime like murder and let the real

culprit escape the clutches of law and gallows of confinement.

This view has time and again been adopted and reiterated by the

Courts across the nation, including the highest Court of the land.

In the case of Shanmugam -Vrs.- State reported in (2013)

12 Supreme Court Cases 765, while evaluating the evidentiary

value of testimony of related witnesses, the Hon?ble Supreme

Court held as follows:

JCRLA No.12 of 2014 Page 22 of 35
<12. As observed by this Court in Raju case
[(2012) 12 SCC 701 : AIR 2013 SC 983],
far more important than categorisation of
witnesses is the question of appreciation of
their evidence. The essence of any such
appreciation is to determine whether the
deposition of the witness to the incident is
truthful hence acceptable. While doing so, the
court can assume that a related witness would
not ordinarily shield the real offender to
falsely implicate an innocent person. In cases
where the witness was inimically disposed
towards the accused, the courts have no
doubt at times noticed a tendency to implicate
an innocent person also, but before the court
can reject the deposition of such a witness the
accused must lay a foundation for the
argument that his false implication springs
from such enmity. The mere fact that the
witness was related to the accused does not
provide that foundation. It may on the
contrary be a circumstance for the court to
believe that the version of the witness is
truthful on the simple logic that such a
witness would not screen the real culprit to
falsely implicate an innocent. Suffice it to say
that the process of evaluation of evidence of
witnesses whether they are partisan or
interested (assuming there is a difference
between the two) is to be undertaken in the

JCRLA No.12 of 2014 Page 23 of 35
facts of each case having regard to ordinary
human conduct, prejudices and predilections.=

[Emphasis supplied]

P.W.15 has not stated to have seen the appellant

holding any jerrycan in her hand containing kerosene either

when she (P.W.15) went to urinate after finding the appellant in

the inner room during the midnight or when the appellant was

found with a satisfying smile afterwards. According to the

prosecution, the occurrence has happened during a very short

time when P.W.15 stated to have gone to urinate and returned

back after hearing the scream of her deceased husband.

Law is well settled that dying declaration should be of

such a nature which must inspire full confidence of the Court in

its truthfulness and correctness. It is for the Court to ascertain

from evidence placed on record that the deceased was in a fit

state of mind and had ample opportunity to observe and identify

the culprit. In the case in hand, the evidence of P.W.15 as well

as P.W.7 indicate that not only the bed room (spot room) of the

deceased but also the entrance room where P.W.7 was sleeping

was dark and the duration of the occurrence being very short, it

creates doubt as to whether the deceased had ample opportunity

to observe and identify the culprit correctly as to who poured

JCRLA No.12 of 2014 Page 24 of 35
kerosene on him and set him on fire striking a match stick so as

to make the declaration before P.W.15. P.W.7 has stated that

when he woke up, he found the deceased in the room where he

was sleeping. If the deceased screamed and P.W.7 woke up so

also P.W.15 came inside hearing such screaming from outside

where she had gone to pass urine and then both P.W.7 and

P.W.15 covered the body of the deceased, who was in a naked

condition, with a blanket and thereafter the dying declaration

was made, then P.W.7 would also have stated in that respect,

but his evidence is totally silent regarding the dying declaration.

Therefore, it creates doubt relating to the dying declaration being

made by the deceased before P.W.15.

Motive:

10. Learned counsel for the State submitted that since

the deceased gave preference to P.W.15, who was his second

wife and allowed her to sleep with him in the inner room and

thereby the appellant had to sleep on the outer verandah, she

might have grievance against her husband (deceased) for which

she committed the crime. Such a contention that on that

particular day, merely because the deceased slept with P.W.15,

the same triggered the appellant so violently that she committed

the ghastly crime of killing her husband by pouring kerosene and

JCRLA No.12 of 2014 Page 25 of 35
striking match stick on his body, is very difficult to be accepted.

Needless to say that it is the evidence of P.W.7 that P.W.15 was

his >sana maa?, who usually stayed at Tungripali, Jagda and the

deceased was staying with P.W.15 most of the times and that he

himself along with the appellant was staying in Jhirpani village

and occasionally, the deceased visited them. Even P.W.15 has

stated that the deceased was living at either of the two places

and the appellant and she herself were at visiting terms to each

others? houses. Therefore, when the appellant had accepted the

second marriage of her husband with P.W.15 which took place

twenty years prior to the date of occurrence and they were in

visiting terms and merely because on the occurrence night,

P.W.15 slept with the deceased in the inner room, it cannot be

said to be a strong motive on the part of the appellant to kill her

husband (deceased).

Suspicious feature in the prosecution case:

11. The appellant was sleeping on the outer verandah

and in the first room her son (P.W.7) was sleeping and in the

inner room, her husband (deceased) and P.W.15 were sleeping.

It was not known to the appellant as to whether P.W.15 would

wake up in the night and go for urination. Therefore, it is quite

improbable to even assume that she kept herself well-prepared

JCRLA No.12 of 2014 Page 26 of 35
to avail the opportunity to pour kerosene on the body of the

deceased and set him on fire, particularly when in the adjacent

room her son (P.W.7) was sleeping. This is a suspicious feature

of the case.

Conduct of the appellant:

12. Learned counsel for the State highlighted that the

appellant did not accompany her husband (deceased) when he

was shifted to the hospital in the occurrence night in the auto-

rickshaw. He placed the evidence of P.W.3, the auto-rickshaw

driver, who stated that he took the injured (deceased) being

accompanied by P.W.7, P.W.15 and the daughter of the

deceased, namely, Binita first to a clinic at Jhirpani and then to

C.W.S. Hospital at Jagda. In the accused statement, the

evidence of P.W.3 and P.W.15 regarding the shifting of the

deceased was put to the appellant and she has stated that she

did not accompany because there was no space available in the

tempo. The explanation is quite acceptable as it was an auto-

rickshaw and apart from the auto driver, there were already four

persons including the deceased in it.

The conduct of the appellant as deposed to by P.W.7

that she tried to pour water on the deceased and was weeping is

another factor, which goes in favour of the appellant.

JCRLA No.12 of 2014 Page 27 of 35
Implication of the appellant by other witnesses:

13. P.W.3 has stated that after the deceased was

admitted in the I.G.H., P.W.7 told him that the appellant set the

deceased on fire, but the evidence of P.W.7 is totally silent in

that respect. When P.W.7 has himself stated that he had no

knowledge as to how the deceased received the burn injuries

and he has also not stated to have made any disclosure before

P.W.3 implicating the appellant to be the author of the crime, no

importance can be attached to the evidence of P.W.3.

Similarly, P.W.8 has stated that P.W.15 told her that

the appellant had set the deceased on fire and then she went to

the house of the deceased and found the deceased in a burnt

condition and pleading for his life, but most peculiarly P.W.15

has not stated to have gone to the house of P.W.8 and informed

the latter anything against the appellant, rather it was P.W.7,

who has stated that after covering the deceased with a blanket,

in desperation he rushed to the house of P.W.8 and then to the

house of P.W.3. Therefore, no importance can be attached to the

evidence of P.W.8 that any statement has been made by P.W.15

before her implicating the appellant to be the author of the

crime.

JCRLA No.12 of 2014 Page 28 of 35
Whether the recovery statement given by the appellant

can be held admissible U/S 27 of the Evidence Act?:

14. The learned counsel for the State highlighted the

evidence relating to leading to discovery of a plastic jerrycan

containing kerosene, which is stated to have been kept near a

brick heap in the backside of the spot house and was seized by

the I.O. (P.W.14) on the basis of information supplied by the

appellant, who led the police party to the place of recovery and

the jerrycan was seized as per the seizure list Ext.5.

The I.O. has stated that he recovered a green colour

plastic jerrycan containing 300 ml. of kerosene kept concealed

near a brick heap and prepared the seizure list Ext.5. In the

cross-examination, the I.O. has stated not to have measured the

kerosene available in jerrycan (M.O.III). P.W.5 is a witness to

the said seizure list and he has stated that the jerrycan

contained about 20 to 30 ml. of kerosene and jerrycans of that

type were available in the open market and it is also a common

household item. Therefore, there is also a discrepancy relating to

the quantity of kerosene oil found in the jerrycan and it cannot

be lightly brushed aside because being a villager, P.W.5 was not

supposed to give an incorrect statement relating to the quantity

of kerosene found in the plastic jerrycan. Above all, the seizure

JCRLA No.12 of 2014 Page 29 of 35
list (Ext.5) indicates that the jerrycan was found from the

backside of the said house near the heap of bricks at Mundari

basti, Jhirpani. It is not mentioned that the jerrycan containing

kerosene was found in a hidden state. When the seizure of the

jerrycan was made while it was lying in an open and accessible

place and it had not remained out of visibility of others, in

normal circumstances, it cannot be said that it was within the

exclusive knowledge of the appellant and that such jerrycan

could not have been recovered without the assistance of the

appellant as it was ordinarily visible to others. Against this

backdrop, it is germane to borrow credence from the following

observations made by the Hon?ble Supreme Court in the case of

Anter Singh -Vrs.- State of Rajasthan reported in (2004)

10 Supreme Court Cases 657:

<14...It will be seen that the first condition
necessary for bringing this section (section
27) into operation is the discovery of a fact,
albeit a relevant fact, in consequence of the
information received from a person accused of
an offence. The second is that the discovery of
such fact must be deposed to. The third is
that at the time of the receipt of the
information the accused must be in police
custody. The last but the most important
condition is that only <so much of the

JCRLA No.12 of 2014 Page 30 of 35
information= as relates distinctly to the fact
thereby discovered is admissible. The rest of
the information has to be excluded. The word
<distinctly= means <directly=, <indubitably=,
<strictly=, <unmistakably=. The word has been
advisedly used to limit and define the scope of
the provable information. The phrase
<distinctly= relates <to the fact thereby
discovered= and is the linchpin of the
provision. This phrase refers to that part of
the information supplied by the accused which
is the direct and immediate cause of the
discovery. The reason behind this partial
lifting of the ban against confessions and
statements made to the police, is that if a fact
is actually discovered in consequence of
information given by the accused, it affords
some guarantee of truth of that part, and that
part only, of the information which was the
clear, immediate and proximate cause of the
discovery.=

[Emphasis supplied]

From the aforesaid decision, it is clear that discovery

of a fact/ a material object must be preceded by the supply of

information by the accused person. In other words, to attract the

provision under section 27 of the Evidence Act, it is necessary

that the police must have discovered something as per the

JCRLA No.12 of 2014 Page 31 of 35
information provided by the accused person. If something is

quite easily discoverable, even without the assistance of the

accused, the same can hardly be called as an >information?

admissible under the section. Not only the police but also the

scientific team visited the spot on 29.06.2011 and remained

there for hours together and in such scenario, the jerrycan lying

near the brick heap would not have gone unnoticed.

It is more than important to clarify that merely

because an object is openly accessible to public, the same would

not vitiate the evidence under section 27. The real test is not to

ascertain whether the object/material is >openly accessible?,

rather it is to see whether the same was visible to the bare eyes

of the common people passing through the said accessible place.

In the case of State of H.P. -Vrs.- Jeet Singh reported in

(1999) 4 Supreme Court Cases 370, the Hon?ble Supreme

Court elucidated the legal position in the following words:

<26. There is nothing in Section 27 of the
Evidence Act which renders the statement of
the accused inadmissible if recovery of the
articles was made from any place which is
<open or accessible to others=. It is a
fallacious notion that when recovery of any
incriminating article was made from a place

JCRLA No.12 of 2014 Page 32 of 35
which is open or accessible to others, it would
vitiate the evidence under Section 27 of the
Evidence Act. Any object can be concealed in
places which are open or accessible to others.
For example, if the article is buried in the
main roadside or if it is concealed beneath dry
leaves lying on public places or kept hidden in
a public office, the article would remain out of
the visibility of others in normal
circumstances. Until such article is disinterred,
its hidden state would remain unhampered.
The person who hid it alone knows where it is
until he discloses that fact to any other
person. Hence, the crucial question is not
whether the place was accessible to others or
not but whether it was ordinarily visible to
others. If it is not, then it is immaterial that
the concealed place is accessible to others.=

In the present case, the prosecution case is that the

kerosene jerrycan was lying near the brick heap. Neither there is

any evidence that the brick heap was inaccessible to public nor

there is any indication that it was not within the visibility of the

others. Thus, when the jerrycan was simply found near the brick

heap in an open space, it cannot be said that it is only and only

the recovery statement of the appellant which caused the

discovery of the jerrycan. In such circumstances, the so-called

JCRLA No.12 of 2014 Page 33 of 35
recovery statement rendered by the appellant and the

consequential recovery of jerrycan cannot be utilized against the

appellant as per the contours and mandate of section 27 of the

Evidence Act. Moreover, the jerrycan was seized as per seizure

list (Ext.5) on 30.06.2011 and it was forwarded to R.F.S.L.,

Sambalpur through Court on 22.10.2011 vide Ext.9. There is no

evidence on record where the jerrycan was kept and in what

condition. The prosecution is duty bound to adduce evidence in

this respect otherwise the possibility of tampering with it cannot

be ruled out which would be also a factor not to place any

reliance on the finding of chemical examination report.

Conclusion:

15. In view of the foregoing discussions, I am of the view

that there is no clinching evidence against the appellant relating

to her involvement in the crime in question. The circumstances

which are appearing on record are not clinching and they do not

form a complete chain so as to come to a conclusion with

certainty that the appellant is the author of the crime. The

findings of the learned trial Court against the appellant are not

justified and the circumstances which are in favour of the

appellant have been ignored and thereby it has resulted in

miscarriage of justice.

JCRLA No.12 of 2014 Page 34 of 35
Accordingly, the impugned judgment and order of

conviction of the appellant under section 302 of the I.P.C. is not

sustainable in the eye of law and the same is hereby set aside.

The appellant is acquitted of the charge. She shall be set at

liberty forthwith if her detention is not required in any other

case.

In the result, the JCRLA is allowed.

Before parting with the case, I would like to put on

record my appreciation to Mr. Biswajit Nayak, learned counsel for

the appellant for rendering his valuable help and assistance

towards arriving at the decision above mentioned. This Court

also appreciates the valuable help and assistance provided by

Mr. Rajesh Tripathy, learned Additional Standing Counsel.

The trial Court records with a copy of this judgment

be sent down to the learned trial Court forthwith for information.

..........................
S.K. Sahoo, J.

Chittaranjan Dash, J. I agree.

.......................... Chittaranjan Dash, J.

Signature Not Verified

Digitally Signed Orissa High Court, Cuttack Signed by: RABINDRA KUMAR th MISHRA Reason: AuthenticationThe 4 July 2024/RKMishra Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Jul-2024 11:02:37 JCRLA No.12 of 2014 Page 35 of 35

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