Orissa High Court
Ahalya @ Kalyani vs State Of Odisha ......... Opposite ... on 26 August, 2019
Equivalent citations: AIRONLINE 2019 ORI 190
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 5200 Of 2019
An application under section 439 of the Code of Criminal
Procedure, 1973 in connection with Khandapada P.S. Case
No.258 of 2018 corresponding to G.R. Case No.466 of 2018
pending on the file of J.M.F.C., Khandapada.
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Ahalya @ Kalyani
Khuntia ......... Petitioner
-Versus-
State of Odisha ......... Opposite Party
For petitioner: - M/s. Soura Ch. Mohapatra
Puspamitra Mohapatra
P.K. Swain, S. Hafiz
S.Biswal, M. Pradhan
Satya Mohapatra
P.K. Sahoo, D.J. Panda
For Opp. party: - Mr. Priyabrata Tripathy
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of argument: 21.08.2019 Date of order: 26.08.2019
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S. K. SAHOO, J. The petitioner Ahalya @ Kalyani Khuntia has filed this
application under section 439 of Code of Criminal Procedure
seeking for bail in connection with Khandapada P.S. Case No.258
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of 2018 corresponding to G.R. Case No.466 of 2018 pending on
the file of J.M.F.C., Khandapada for offences punishable under
sections 498(A)/302/307/34 of the Indian Penal Code and
section 4 of the Dowry Prohibition Act.
2. The criminal investigative machinery was set into
motion on 31.12.2018 on the presentation of the first
information report by Bimal Kumar Mallick, Inspector in Charge
of Khandapada Police Station.
It is the case of the prosecution as per the first
information report that on 22.10.2018 the mother of the
petitioner namely Sukanti Lenka lodged a report against the in-
laws family members of the petitioner to have mentally and
physically tortured the petitioner demanding dowry and
committing murder of granddaughter Sibani Khuntia and
grandson Siba Khuntia and dumping the dead bodies in a pond
to conceal the murder. Khandapada P.S. Case No.216 of 2018
was registered on such report of the mother of the petitioner on
22.10.2018 under sections 498-A, 307, 302 read with section 34
of the Indian Penal Code and section 4 of Dowry Prohibition Act.
The Inspector in Charge visited the spot in
connection with Khandapada P.S. Case No.216 of 2018,
examined the witnesses, held inquest over the dead bodies of
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Siba Khuntia and Sibani Khuntia and sent it for post mortem
examination. The Medical Officer opined the cause of death was
due to asphyxia caused by drowning with suspected poisoning.
The viscera were preserved and it was sent to SFSL, Rasulgarh
for opinion and the Scientific Officer detected no metallic poison
in both the viscera of the deceased persons. After receipt of the
viscera reports, query was made relating to final opinion
regarding cause of death and accordingly the Medical Officer
opined that the cause of death of both the deceased was due to
asphyxia caused by drowning which was ante mortem in nature.
During course of further investigation of Khandapada
P.S. Case No.216 of 2018, it was found that the petitioner
married to one Babu @ Babuli Khuntia of village Laxmiprasad in
the year 2008 and they were blessed with two children i.e.
deceased persons Sibani Khuntia and Siba Khuntia who were
aged about ten and four years respectively at the time of
occurrence. It was further found out that the petitioner and her
husband used to quarrel with each other over trifling matters
and their relationship was not good. The husband of the
petitioner incurred heavy loan from different financial
organizations and various groups of his own village and he could
not able to repay the loan amount for which he was pressurizing
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the petitioner to arrange money and as the same could not
materialize, the husband and parents-in-law of the petitioner
were torturing her physically and mentally and the husband of
the petitioner was remaining outside from the house.
It was also found during course of further
investigation that on the fateful day i.e. on 21.10.2018 the
husband and the parents-in-law of the petitioner were not
present in the house and they were engaged in different
assignments and when in the evening hours, the mother-in-law
of the petitioner returned back home, she found the door of her
house was closed and nobody was present there. She searched
for the petitioner and her two grand children but found them
missing. The villagers also assisted her in the search. The father
-in-law of the petitioner returned back home and ultimately the
dead body of Siba Khuntia was found first inside the pond which
was situated in the backyard of the house and subsequently the
dead body of Sibani Khuntia was also found from that pond. The
petitioner was found in an injured condition in the pond shouting
for help. The dead bodies as well as the injured petitioner were
shifted to Nayagarh Hospital.
It was found during investigation of Khandapada P.S.
Case No.216 of 2018 that though the husband and the parents
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-in-law of the petitioner were demanding dowry and torturing
her physically and mentally but they have no role in the
commission of murder of the deceased persons and it was the
petitioner who committed the murder of her children Sibani
Khuntia and Siba Khuntia by drowning them inside the village
pond and then making an attempt to disappear with the
evidence.
On the basis of the first information report presented
on 31.12.2018, a case under sections 302 and 201 of the Indian
Penal Code was registered against the petitioner in Khandapada
P.S. Case No.258 of 2018 and on completion of investigation,
charge sheet was placed under sections 302 and 201 of the
Indian Penal Code. In Khandapada P.S. Case No.216 of 2018,
charge sheet was placed under section 498-A of the Indian Penal
Code against the husband and parents-in-law of the petitioner.
3. The petitioner moved an application for bail before
the learned Addl. Sessions Judge, Nayagarh in Bail Application
No.91 /153 of 2019 which was rejected on 15.05.2019.
4. Mr. Soura Chandra Mohapatra, learned counsel for
the petitioner contended that the petitioner is a woman and she
is in jail custody since 11.04.2019 and there are no eye
witnesses to the commission of murder and there is no clinching
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circumstantial evidence against the petitioner. No motive has
been attributed against the petitioner for committing murder of
her own children as alleged by the prosecution. It is contended
that neither there is any chance of absconding or tampering with
the evidence and therefore, keeping in view the proviso to
section 437(1) Cr.P.C., the bail application of the petitioner may
be favourably considered.
Mr. Priyabrata Tripathy, learned Addl. Standing
Counsel appearing for the State of Odisha vehemently opposed
the prayer for bail and submitted that there are strong
circumstantial evidence against the petitioner and the manner in
which the ghastly crime was committed, even though the
petitioner is a woman, she should not be released on bail.
5. Adverting to the contentions raised by the learned
counsel for the respective parties, it is not in dispute that there is
no direct evidence as to who committed the murder of both the
deceased who were just aged about ten years and five years at
the time of occurrence. There is also no evidence as to when and
how the murder was committed. The prosecution case hinges on
circumstantial evidence. It is well established rule of criminal
justice that fouler the crime, the higher should be the degree of
proof. A moral opinion howsoever strong or genuine cannot be a
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substitute for legal proof. When a case is based on circumstantial
evidence, a very careful, cautious and meticulous scrutinisation
of the evidence is necessary and it is the duty of the Court to see
that the circumstances from which the conclusion of guilt is to be
drawn should be fully proved and those circumstances must be
conclusive in nature and all the links in the chain of events must
be established clearly beyond reasonable doubt and established
circumstances should be consistent only with the hypothesis of
guilt of the accused and totally inconsistent with his innocence.
Whether the chain of events is complete or not would depend on
the facts of each case emanating from the evidence which is to
be adjudicated by the trial Court at the appropriate stage who
has a duty not to allow suspicion to take the place of legal proof.
The Court has to be watchful to avoid the danger of being
swayed away by emotional consideration.
Coming to the contention of the learned counsel for
the petitioner for favourable consideration of bail application of
the petitioner being a woman in view of the proviso to section
437(1) Cr.P.C., it is felt necessary to quote the observation made
by this Court in the case of Preeti Bhatia -Vrs.- Republic of
India reported in (2015) 61 Orissa Criminal Reports (SC)
131, wherein it is held as follows:-
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"11. Under Section 437 (1) of the Code when
a person accused of, or suspected of, the
commission of any non-bailable offence is
arrested or detained without warrant by an
officer in charge of a police station or appears or
is brought before a Court other than the High
Court and Court of Session, he may be released
on bail by the Court subject to the conditions
that he does not reasonably appear to have
been guilty of an offence punishable with death
or imprisonment for life. The conditions of not
releasing the person on bail charged with an
offence punishable with death or imprisonment
for life shall not be applicable if such person is
under the age of 16 years or is a woman or is
sick or infirm, subject to such conditions as may
be imposed. It does not, however, mean that
persons specified in the first proviso to sub-
section (1) of Section 437 should necessarily be
released on bail. The proviso is an enabling
provision which confers jurisdiction upon a
Court, other than the High Court or Court of
Session, to release a person on bail who has
appeared or brought before the Court despite
the fact that there appears reasonable ground
for believing that such person has been guilty of
an offence punishable with death or
imprisonment for life. There is no gainsaying
that the discretion conferred by the Code has to
be exercised judicially. The overriding
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considerations in granting bail which are
common both in Section 437(1) and 439(1) of
Criminal Procedure Code are the nature and
gravity of the offence, position and status of the
accused with reference to the victim and the
witnesses and likelihood of the accused fleeing
from justice and tampering with witnesses etc.
Bail is a matter of procedural privilege and not
an accrued right until it is granted. The law is
the sentinel of rights of the Society and of the
individual. The cause of public justice and
interest of society have to be zealously guarded
compared to the rights of an applicant. If the
offence is of such a nature which affects the vital
interest of the society and has adverse effect on
the social and family life, in such matters the
issue is to be considered with reference to them
and one of the consideration which has to be
weighed for granting or refusing bail is the
nature of the offence and its heinousness.
Though the beneficial provision relating to
release of an accused under the age of sixteen
years or on the ground of being a woman or sick
or infirm has to be kept in mind while
considering his/her bail in spite of his/her
involvement in an offence punishable with death
or imprisonment for life but at the same time
the Court should also give due weight to the
other aspects like nature and gravity of the
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offence etc. and also the adverse impact of the
offence committed on the society."
6. On perusal of the case diary, it is found that the
statements of witnesses Laxmipriya Sahoo, Bhagirathi Barad and
Namita Rout indicate about the last seen of the petitioner in the
company of both the deceased. While both the deceased were
watching television in the house of Bhagirathi Barad in the
evening hours, the petitioner came there and first took deceased
Sibani on the pretext of attending call of nature. Subsequently
the petitioner again came there and took the deceased Siba @
Sai with her. Sometimes thereafter when witness Namita Rout
who is the niece of the petitioner came to the house of the
petitioner, she found the deceased Sibani was absent and the
deceased Siba @ Sai was lying under a cot. When Namita Rout
asked the petitioner the whereabouts of deceased Sibani, she
was told that Sibani had been to learn dancing to the house of
Tulasi. Witnesses Namita Rout and Laxmipriya Sahoo proceeded
to the house of Tulasi and could not find the deceased Sibani
there and then Namita Rout came back and intimated the
petitioner about the missing of deceased Sibani but the
petitioner did not show any anxiety for her missing daughter
rather asked Namita Rout to go and watch TV. When the mother
-in-law of the petitioner returned back home, she did not find
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either the petitioner or the two deceased and ultimately after
frantic search, the dead bodies were found in the pond and the
petitioner was also rescued from the pond and was taken to
hospital. Therefore, apart from the last seen of the petitioner in
the company of the deceased Sibani and Siba @ Sai, the
unnatural conduct of the petitioner when missing of deceased
Sibani was reported to her by witness Namita Rout, close
proximity in which the dead bodies were recovered from the
pond and the petitioner was found in an injured condition in that
pond and the cause of death as per the opinion of the Medical
Officer prima facie raise accusing fingers at the petitioner.
It is correct that no specific motive has been
attributed against the petitioner for the alleged commission of
murder of her two minor children but it cannot be lost sight of
the fact that it is only the perpetrator of the crime who knows as
to what circumstances prompted him/her to a certain course of
action leading to the commission of crime. Under section 8 of the
Evidence Act, any fact is relevant which shows or constitutes a
motive or preparation for any fact in issue or relevant fact. In a
case based on circumstantial evidence, motive assumes
pertinent significance as existence of the motive is an
enlightening factor in a process of presumptive reasoning in such
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a case. Proof of motive in such a case lends additional support to
the findings of the guilt. When the motive alleged against the
accused is fully established by the prosecution, it affords a key or
pointer to scan the evidence in the case, in that prospective and
as a satisfactory circumstance of corroboration and further
provides a foundational material to connect the chain of
circumstances. The absence of motive, however, puts the Court
on its guard to scrutinize the circumstances more carefully to
ensure that suspicion and conjecture do not take the place of
legal proof.
Adverting to the contentions raised by the learned
counsel for the respective parties and looking at the oral as well
as documentary evidence available on record against the
petitioner relating to the commission of the offences under which
charge sheet has been submitted, even though the petitioner is a
woman, but taking into account the nature and gravity of
accusation and likelihood of tampering with the evidence, I am
not inclined to release the petitioner on bail.
Any observation made in this order shall not
influence the learned trial Court in adjudicating the case and the
learned trial Court shall go by the evidence to be adduced by the
respective sides during course of trial. The petitioner is at liberty
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to renew the prayer for bail after examination of the material
witnesses in the trial Court.
Accordingly, the bail application sans merit and
hence stands rejected.
Issue urgent certified copy as per rules.
A free copy of the order be handed over to the
learned counsel for the State.
...........................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 26th August 2019/Sisir