The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 IN THE HIGH COURT OF ORISSA, CUTTACK. JCRLA No.22 Of 2009 From judgment and order dated 02.03.2009 passed by the learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No.65 of 2008. ----------------------------- Tupa @ Tupi Purty …..… Appellant -Versus- State of Odisha …….. Respondent For Appellant: - Ms. C. Kasturi (Amicus Curiae) For State: - Mr. Sonak Mishra 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 and Judgment: 09.11.2023 --------------------------------------------------------------------------------------------------- By the Bench: The appellant Tupa @ Tupi Purty faced trial in the Court of learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No.65 of 2008 for the offence punishable under section 302 of the Indian Penal Code (hereinafter referred to as ‘I.P.C.’) on Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 2 // the accusation that on 13.10.2007 at about 2.00 p.m. at village Golmunda, he committed murder of his wife Duguni Purty (hereinafter ‘the deceased’). The learned trial Court vide impugned judgment and order dated 02.03.2009, found the appellant guilty under section 302 of the I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2,000/-(rupees two thousand), in default, to undergo rigorous imprisonment for six months. Prosecution Case: 2. The prosecution case, as per the first information report (Ext.1) lodged by Sardar Tiria (P.W.1) before the Inspector in-charge of Jashipur police station on 14.10.2007, is that he is the younger brother of the deceased and the deceased was given marriage to one Deba Purty of village Golmunda fifteen years prior to the lodging to the F.I.R. and she was blessed with a child but one year after the marriage since Deba Purty died, the deceased married to her bother-in-law (husband’s younger brother) Tupa Purty (the appellant) and out of their wedlock, three children were born. The husband and wife were living peacefully along with their children. It is further stated in the first information report that on 14.10.2007 at about 8.00 a.m., P.W.4 Champa Pingua came and gave information to JCRLA No.22 of 2009 Page 2 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 3 // him that on 13.10.2007 at about 2.00 p.m., there was a quarrel between the appellant and the deceased and thereafter the appellant assaulted the deceased with a katari in his courtyard and left for some unknown destination. Hearing such message from P.W.4, the informant (P.W.1) along with other co-villagers came to the spot and found the deceased lying dead sustaining injuries on her neck, cheek and shoulder. On the basis of such written report of P.W.1, the Inspector in-charge, Jashipur police station, namely, Jashobanta Samal (P.W.9) registered Jashipur P.S. Case No.92 dated 14.10.2007 under section 302 of the I.P.C. against the appellant and he himself took up investigation of the case.
Legal Reasoning
Prior to the registration of the first information report, P.W.9 received V.H.F. message from one Bidyadhara Mohanta, Forest Guard of Jashipur beat house that the appellant had surrendered at Gudugudia out-post voluntarily after committing murder of his wife (the deceased). P.W.9 entered the said fact in the station diary and proceeded to the spot along with the staff to the spot through Gudugudia outpost and at the spot, the informant (P.W.1) presented the written report to P.W.9, who took up investigation of the case. During the course of investigation, he examined the informant, prepared the spot JCRLA No.22 of 2009 Page 3 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 4 // map (Ext.10), took the photographs of the dead body and the scene of occurrence, held inquest over the dead body of the deceased and prepared the inquest report (Ext.2), seized the blood stained earth and sample earth at the spot as per seizure list (Ext.5). He also examined the appellant, seized his wearing apparels as per seizure list (Ext.6) and at about 4.00 p.m., while the appellant was in police custody, the appellant not only confessed his guilt but also stated that he concealed the katari (M.O.I) in a bush near village Golmunda and if the police would go with him, he would show the place of concealment and so saying, the appellant led P.W.9 and witnesses to the place of concealment, brought out the weapon of offence i.e. M.O.I from the place i.e. underneath of the bush and handed over the same to P.W.9 who not only recorded the statement of the appellant under section 27 of the Evidence Act in separate sheet but also prepared the seizure list after recovery of the katari at the instance of the appellant which has been marked as Ext.4. On the same day at about 4.30 p.m., P.W.9 sent the dead body of the deceased for post mortem examination through a constable Khgeswar Patra to S.D. Hospital, Karanjia and also sent the weapon of offence i.e. katari to Medical Officer, S.D. Hospital, Karanjia for its examination and opinion as to whether the cut JCRLA No.22 of 2009 Page 4 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 5 // injuries on the back side of the neck, left side chin, left side cheek and left shoulder were possible by means of the said katari and whether the said seized weapon of offence is sufficient to cause death of a person in ordinary course of nature. The appellant was also sent to Jashipur C.H.C. for his medical examination and treatment through constable Karuhari Majhi (P.W.8) and on 15.10.2007, blood sample of the appellant was collected by the Medical Officer which was seized and then the appellant was forwarded to the Court of S.D.J.M., Karanjia. The wearing apparels of the deceased, after post mortem examination, were produced by a constable which was seized as per seizure list Ext.12. On 03.10.2007, P.W.9 made prayer to S.D.J.M., Karanjia to send the exhibits to R.F.S.L., Balasore for examination and opinion and accordingly, the same were sent and P.W.9 obtained the chemical examination report and the serological report vide Ext.14 and Ext.15 respectively. The I.O. (P.W.9) received the post mortem examination report (Ext.7) of the deceased and on completion of investigation, he submitted charge sheet against the appellant under section 302 of the I.P.C. 3. After submission of charge sheet and commitment of the case to the Court of Session, on 09.09.2008, the learned trial JCRLA No.22 of 2009 Page 5 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 6 // Court framed charge against the appellant as already stated and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. Prosecution Witnesses & Exhibits and Material Objects: 4. During the course of trial, in order to prove its case, the prosecution examined nine witnesses. P.W.1 Sardar Tiria is the brother of the deceased, brother-in-law of the appellant and the informant in the case. He stated to have received information from P.W.4 that the appellant committed murder of the deceased by means of katari and on getting such information, he along with P.W.2 and P.W.3 proceeded to the house of the appellant and found the deceased was lying dead on the verandah with cut injuries on her neck and other parts of her body and thereafter reported the incident in writing at Jashipur police station and proved the F.I.R. as per Ext.1. He is also a witness to the inquest report vide Ext.2. P.W.2 Madan Mohan Sinku had accompanied the informant along with P.W.3 to the place of occurrence and saw cut injuries on the neck, face and on the other parts of the body of the deceased. He stated that the appellant confessed his guilt before him and other witnesses in the presence of police. He JCRLA No.22 of 2009 Page 6 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 7 // scribed the F.I.R. as per instruction of P.W.1 and he is also a witness to the preparation of the inquest report (Ext.2). P.W.3 Ramesh Hembram accompanied the informant along with P.W.2 to the place of occurrence and saw several cut injuries on the neck, face and other parts of the body of the deceased. He is a witness to the seizure of the weapon of offence i.e. katari as per seizure list Ext.4. He is also a witness to the statement of the appellant recorded under section 27 of the Evidence Act as per seizure list Ext.3. He is also a witness to the seizure of blood stained earth and sample earth from the spot as per seizure list Ext.5 and wearing apparels of the appellant as per seizure list Ext.6. P.W.4 Champa Pingua is the cousin sister of the informant and sister-in-law of the appellant and an eye witness to the occurrence. P.W.5 Tumba Hembram is the uncle of the informant and the appellant is his bhanji-jwain and the deceased is his niece (bhanji). He stated that while he was working in his paddy field, P.W.4 came and narrated the whole occurrence to him. On receiving such information, he came to the house of the appellant and found the deceased lying dead and out of fear, he left the spot. JCRLA No.22 of 2009 Page 7 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 8 // P.W.6 Pradhan Hembram is a witness to the inquest report vide Ext.2. P.W.7 Dr. Asish Ranjan Mohanty was working as O & G Specialist at S.D. Hospital, Karanjia who conducted post mortem examination over the dead body of the deceased and proved his report vide Ext.7. P.W.8 Karuhari Majhi was the police constable attached to Jashipur police Station who is a witness to the seizure of sample blood of the appellant from Medical Officer, Jashipur C.H.C. as per seizure list Ext.9. P.W.9 Jashobanta Samal is the investigation officer of the case. The prosecution exhibited fifteen number of documents. Ext.1 is the F.I.R., Ext.2 is the inquest report, Ext.3 is the statement of the appellant recorded under section 27 of the Evidence Act, Ext.4 is the seizure list in respect of weapon of offence i.e. katari, Ext.5 is the seizure list in respect of blood stained earth and sample earth, Ext.6 is the seizure list in respect of wearing apparels of the appellant, Ext.7 is the post mortem examination report, Ext.8 is the query opinion report, Ext.9 is the seizure list in respect of sample blood of the appellant, Ext.10 is the spot map, Ext.11 is the dead body JCRLA No.22 of 2009 Page 8 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 9 // challan, Ext.12 is the seizure list in respect of wearing apparels of the deceased, one vial containing sample blood of the deceased and a command certificate, Ext.13 is the office copy of forwarding letter to S.D.J.M., Karanjia to R.F.S.L., Balasore, Ext.14 is the C.E. report and Ext.15 is the serological report. The prosecution also proved eleven material objects. M.O.I is the katari, M.O.II is the blood stained earth, M.O.III is the sample earth, M.O.IV is the pant, M.O.V is the towel, M.O.VI is the woolen chadar, M.O.VII is the saree, M.O.VIII is the blouse, M.O.IX is the saya, M.O.X is the bangles and M.O.XI is the vial containing sample blood. Defence plea: 5. The defence plea of the appellant was one of denial. Finding of the learned Trial Court: 6. The learned trial Court after analyzing the oral as well as documentary evidence available on record came to hold that that death of the deceased was homicidal in nature and the injuries caused to the deceased were possible by seized weapon of offence i.e. katari and the injuries were sufficient to cause death of a person in ordinary course of nature. It has been further held that from the evidence of P.W.2 and P.W.3, it appeared that the appellant confessed his guilt voluntarily JCRLA No.22 of 2009 Page 9 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 10 // without any coercion and undue influence to have committed the murder of his wife in the broad day light and as such, the extra judicial confession made by the appellant before P.W.2 and P.W.3 was voluntary and without any coercion. The learned trial Court also accepted the evidence relating to the recovery of the weapon of offence i.e. katari at the instance of the appellant. The eye witness evidence was also accepted so also the evidence of the other witnesses and the learned trial Court on closer scrutiny of the oral and documentary evidence came to hold that there is clear, cogent, convincing, unimpeachable and satisfactory evidence adduced on behalf of the prosecution which indicate that it is the appellant who intentionally and knowingly committed the murder of the deceased, who was none other than his wife and accordingly, found the appellant guilty under section 302 of the I.P.C. Contentions of the Parties: 7.
Legal Reasoning
Ms. C. Kasturi, learned Amicus Curiae appearing for the appellant contended that the witnesses are closely related to the deceased and therefore, there is every chance of false implication of the appellant in the alleged crime. She highlighted that the prosecution has not established any motive behind the commission of crime and there was no quarrel prior to the JCRLA No.22 of 2009 Page 10 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 11 // occurrence and therefore, there was no reason for the appellant chasing the deceased and assaulting her with katari. Learned Amicus Curiae further argued that the learned trial Court should not have held that the evidence of P.W.2 and P.W.3 relating to the extra judicial confession made by the appellant before them to be voluntary and without any coercion, particularly, when it was made while the appellant was in police custody and accordingly, it is a fit case where the benefit of doubt should be extended in favour of the appellant and the appeal should be allowed. Mr. Sonak Mishra, learned Addl. Standing Counsel appearing for the State of Odisha, on the other hand, supported the impugned judgment and contended that the witnesses are not only related to the deceased but also to the appellant and there was no earthly reason for them to implicate the appellant falsely in the commission of murder of the deceased. He highlighted the evidence of P.W.4, the solitary eye witness to the occurrence, who stated how the appellant chased the deceased and assaulted her with a katari for which she fell down in front of the house, which has not been shaken at all in the cross- examination. Referring to the spot map, learned counsel further argued that the spot is quite visible from the house of P.W.4 and JCRLA No.22 of 2009 Page 11 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 12 // there was no obstruction in any manner. Learned counsel further argued that at the instance of the appellant, basing on his statement, the weapon of offence was seized from the spot of concealment and the said weapon was sent for examination to the doctor (P.W.7) who conducted post mortem examination and he has opined that the injuries on the body of the deceased were possible by such weapon and moreover, when the weapon of offence was sent for chemical examination, the chemical examiner found human blood on the katari. Furthermore, the conduct of the eye witness i.e. P.W.4 in immediately disclosing about the occurrence before P.W.5 is admissible as res gestae admissible under section 6 of Indian Evidence Act and therefore, even if the prosecution has failed to establish any motive behind the commission of crime but in a case of direct evidence, motive loses its significance and when the version of P.W.4 coupled with the post mortem report finding, which indicates that the ocular version is corroborated by the medical evidence, the learned trial Court has rightly accepted the version of P.W.4. Learned counsel further argued that the manner in which the deceased was assaulted by the appellant with a katari and the blows were given repeatedly on the vital part of the body and the impact of such injuries clearly shows that the appellant intended to commit JCRLA No.22 of 2009 Page 12 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 13 // the murder of the deceased and therefore, there is no infirmity or illegality in the impugned judgment of the learned trial Court and accordingly, the appeal should be dismissed. Whether the deceased met with a homicidal death?: 8. Adverting to the contentions raised by the learned counsel for the respective parties, let us first decide whether the prosecution has successfully established that the deceased met with a homicidal death. The I.O. (P.W.9) conducted inquest over the dead body at the spot and prepared the inquest report which shows that how the deceased had sustained number of injuries on different parts of the body. The doctor (P.W.7) who conducted the post mortem examination has found the following injuries: (i) Rigor mortis was partially present over limbs; (ii) both hands were clenched and there was defecation; (iii) post mortem abrasion were found at places over the back. Injuries (i) Incised wound 11 c.m. X 5 c.m. X 6 c.m. from left corner of mouth to left lateral side of JCRLA No.22 of 2009 Page 13 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 14 // neck horizontal and cutting underlying muscles and mandible; (ii) Incised wound 10 c.m. X 6 c.m. X 6 c.m. from just below and lateral to injury no.(ii) to back of neck cutting underlying muscle and large vessels of neck on that side; (iii) Incised wound chopping out a flap of cheek with a portion of mandible size was 5 c.m. X 6 c.m.; (iv) Incised wound over left shoulder 11 c.m. X 6 c.m. X 6 c.m. cutting muscles and upper end of humerus; (v) Incised wound over back of neck of the level of C-6 and C-7 horizontal and cutting vertebral bones partially size was 11 c.m. X 6 c.m. X 7 c.m.; All the injuries were ante-mortem in nature and the age of injuries was more than 24 hours and within 48 hours. P.W.7 further opined that the cause of death of the deceased was due to massive haemorrhage and shock caused by the above injuries, which were ante mortem in nature. He specifically submitted that the death of the deceased was homicidal in nature. Nothing has been elicited in his cross- examination except putting one question by the learned defence JCRLA No.22 of 2009 Page 14 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 15 // counsel that post mortem abrasions on the back side of the deceased are possible by dragging of the body. Therefore, in view of the unchallenged testimony of the doctor, we are of the humble view that the learned trial Court is quite justified in holding that the prosecution has successfully established that the deceased met with a homicidal death. Analysis of evidence of eye witness (P.W.4): 9. The star witness on behalf of the prosecution is Champa Pingua (P.W.4), who is the sister of the deceased and sister-in-law of the appellant. She stated that on the date of occurrence, she was suffering from fever and sitting on the outer verandah of her house with her breast feeding child and saw the appellant chasing his wife (deceased) from his house, assaulting her by means of a katari and as a result of which, she fell down in front of her house. Out of fear, P.W.4 left the place with her child and came to the house of P.W.5, who is her maternal uncle and narrated the incident to P.W.5. In the cross-examination of P.W.4, she has stated that her house is adjacent to the house of the appellant and her husband was absent at the time of occurrence. She denied the suggestion given by the learned defence counsel that there was a land dispute between her husband and the appellant since two years for which she was not JCRLA No.22 of 2009 Page 15 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 16 // in good terms with the appellant and due to such enmity, she falsely implicated the appellant. Nothing has been brought out in the cross-examination of P.W.4 to disbelieve her evidence. P.W.5 has stated that the appellant is his bhanji- jwain (husband of neice) and the deceased was his niece (bhanji). He further stated that while he was working in his paddy filed, P.W.4 came to him and told that the appellant had committed murder of the deceased by means of a katari in his house and on getting such information, he came near the house of the appellant and saw the deceased lying dead. Therefore, the evidence of P.W.4 regarding disclosure of incident to P.W.5 is not only getting corroboration from the evidence of P.W.5 but the conduct of P.W.4 in disclosing the incidence before P.W.5 immediately after the occurrence is admissible as res gestae under section 6 of the Evidence Act. The materials on record further indicate that P.W.4 intimated P.W.1, who is the informant so also the brother of the deceased, regarding death of the deceased on the next day morning and getting such information, P.W.1 proceeded to the house of the appellant and saw the dead body of the deceased lying on the verandah with several cut injuries on her neck and JCRLA No.22 of 2009 Page 16 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 17 // other parts of the body and found the appellant absent in his house. The other witnesses who accompanied P.W.1 to the house of the appellant on that day are P.W.2 and P.W.3 as stated by P.W.1. P.W.2 also stated that when they came to the house of the appellant along with P.W.1 and others, they saw the dead body of the deceased was lying there with injuries on the neck and other parts of the body and the appellant was found absent. P.W.3 has also stated similarly corroborating the evidence of P.W.1 and P.W.2. We find the evidence of P.W.4 is clear, cogent and trustworthy and it gets sufficient corroboration from the evidence of other witnesses. It is quality of evidence and not quantity of evidence which is material. Quantity of evidence was never considered to be a test for deciding a criminal trial and the emphasis of Courts is always on quality of evidence in view of the statutory provision under section 134 of the Evidence Act. Thus, we are of the view that the learned trial Court has rightly accepted the evidence of P.W.4. JCRLA No.22 of 2009 Page 17 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 18 // Recovery of katari (M.O.I) at the instance of the appellant: 10. The I.O. (P.W.9) received the information about the surrender of the appellant at Gudugudia outpost on 13.10.2007 and then after making entry in the station diary, he proceeded to the outpost along with staff and found that the appellant had surrendered at that outpost. P.W.9 further stated that on 14.10.2007, at about 4.00 p.m., the appellant was arrested and while in police custody, he confessed his guilt and stated that he had concealed the katari (M.O.I) near a bush in village Golmunda and if the police party would come with him, he would show the place of concealment and so saying, he led the police party and the witnesses to the place of concealment, brought out the weapon of offence i.e. katari (M.O.I) from the place of concealment underneath the bush and handed over the same to the I.O. The statement of the appellant was recorded under section 27 of the Evidence Act in a separate sheet which has been marked as Ext.3 and the seizure list in respect of weapon of offence has been marked as Ext.4. P.W.2 and P.W.3 have corroborated the version of the I.O. (P.W.9) relating to the leading of discovery of the weapon of offence. Nothing has been brought out in the cross-examination of these witnesses to JCRLA No.22 of 2009 Page 18 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 19 // disbelieve the recovery of katari (M.O.I) at the instance of the appellant. Though the entire statement of the appellant recorded by the I.O. (P.W.9) under section 27 of the Evidence Act has been marked as an exhibit by the learned trial Court as Ext.3, but all the same, it was necessary on the part of the learned trial Court to mark that particular portion of Ext.3 specifically where the information was given by the appellant relating to the discovery of the place of concealment of weapon of offence. Law is well settled that so far as section 27 of the Evidence Act is concerned, the first condition necessary for bringing this section 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 condition is that the discovery of such fact must be deposed to by the accused. 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 information" as relates distinctly to the fact thereby discovered is admissible and the rest of the information has to be excluded. The extent of information admissible must depend on the exact JCRLA No.22 of 2009 Page 19 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 20 // nature of the fact discovered to which such information is required to relate. In the case of Mohmed Inayatullah -Vrs.- the State of Maharashtra reported in A.I.R. 1976 Supreme Court 483, the Hon’ble Supreme Court had held that when the accused stated “I will tell the place of deposit of the three chemical drums which I took out from the Haji Bunder on first August”, only the first part of the statement i.e. “ I will tell the place of deposit of the three chemical drums” was held to be immediately the direct cause of the fact discovered and therefore, admissible under section 27 of the Evidence Act. Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered and therefore, it is inadmissible. Therefore, only that much of statement made by the appellant in custody during investigation to the police is admissible as leads to the recovery of article or thing. Any other part of the statement, which is not related with the recovery of article, is not admissible under section 27 of the Evidence Act. Thus, the prosecution has successfully established the recovery of katari (M.O.I) at the instance of the appellant in JCRLA No.22 of 2009 Page 20 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 21 // view of the evidence of the I.O. (P.W.9) and two independent witnesses P.W.2 and P.W.3. Whether M.O.I was used by the appellant for committing murder of the deceased?: 11. After the seizure of M.O.I at the instance of the appellant, it was sent to the doctor (P.W.7) who opined on examination that the injuries found on the dead body of the deceased were possible to be inflicted by means of a katari and further stated that the injuries caused by katari are sufficient to cause death of a person in ordinary course of nature. The query report of the doctor has been marked as Ext.8. The weapon of offence (M.O.I) was sent for chemical examination and the chemical examination report indicates that there was human blood on the katari (M.O.I). Therefore, the prosecution case that M.O.I was used by the appellant for committing the murder of the deceased is also established by the prosecution. Evidentiary value of testimonies of related witnesses: 12. The contentions of the learned counsel for the appellant that the witnesses are close relatives of the deceased and therefore, there is chance of false implication of the appellant cannot be accepted in view of the fact that they are also related to the appellant and moreover, close relatives are JCRLA No.22 of 2009 Page 21 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 22 // not necessarily the witnesses who are expected to depose falsely sparing the real culprit and implicating somebody falsely. Recently, the Hon’ble Supreme Court in the case of Prasad Pradhan & Anr. –Vrs.- The State of Chhattisgarh reported in (2023) Supreme Court Cases OnLine SC 81 has reiterated that only because most of the witnesses are related to the deceased does not per se exclude their testimony and if the test of credibility or reliability when applied, is fully satisfied in respect of the strength of their testimonies, then their evidence can be accepted. Proof of motive is not material in cases of direct evidence: 13. The manner in which the assault has been made has been proved by P.W.4 and even though prosecution has not proved the motive behind the commission of crime but when direct evidence is available on record, motive loses significance as has been held by the Hon’ble Apex Court in catena of judgments including the one Prem Kumar -Vrs.- State of Bihar reported in (1995) 3 Supreme Court Cases 228, wherein it was held as follows: “5….When there is sufficient direct evidence regarding the commission of the offence, the question of motive will not loom large in the JCRLA No.22 of 2009 Page 22 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 23 // mind of the court….Very often, a motive is alleged to indicate the high degree of probability that the offence was committed by the person who was prompted by the motive. In our opinion, in a case when motive alleged against the accused is fully established, it provides a foundational material to connect the chain of circumstances. We hold that if the motive is proved or established, it affords a key or pointer, to scan the evidence in the case, in that perspective and as a satisfactory circumstance of corroboration. It is a very relevant and important aspect (a) to highlight the intention of the accused and (b) the approach to be made in appreciating the totality of the circumstances including the evidence disclosed in the case.” Thus, proof of motive recedes into the background in cases where the prosecution relies upon an eye witness account of the occurrence. This is because if the Court upon a proper appraisal of the deposition of the eyewitness comes to the conclusion that the version given by him is credible, absence of evidence to the motive is rendered inconsequential. In other words, if the direct evidence of witnesses can be relied upon, the absence of motive cannot be a ground to reject the prosecution case. JCRLA No.22 of 2009 Page 23 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 24 // In the case hand, even though no motive has been proved against the appellant for commission of the crime, as the version of the eye witness (P.W.4) has remained unassailed and it is being corroborated by other evidence, failure to prove motive is no way fatal to the prosecution case. Whether confession made by the appellant admissible in the eye of law?: 14. Though the learned trial Court has observed that the appellant made extra judicial confession before P.W.2 and P.W.3 and such evidence appears to be voluntary and without any coercion and undue influence but it appears from the evidence of those witnesses that while in police custody, the statements were made and therefore, the confession cannot be taken to be admissible in view of the bar under section 25 of the Evidence Act. The provision was enacted to eliminate from consideration confession made to a police officer who by virtue of his position could extort by force, torture or inducement a confession. Having regard to the tainted nature of the source of the evidence, the legislature in its wisdom has prohibited such confession from being received in evidence. JCRLA No.22 of 2009 Page 24 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 25 // Whether the appellant is liable for murder or culpable homicide not amounting to murder?: 15. Now, the only crucial factor that falls for determination is to see whether the appellant is liable for murder or culpable homicide not amounting to murder. In the case in hand, the appellant not only chased the deceased being armed with katari but also assaulted him repeatedly on a vital part of the body like neck and the injuries caused were so serious that it caused massive haemorrhage and shock which resulted in the death of the deceased which clearly reveals the intention of the appellant to commit the murder of the deceased. There is no material on record to bring the case within any of the five exceptions as enumerated under section 300 of the I.P.C. After carefully going through the evidence of the witness (P.W.4) so also the evidence of the doctor (P.W.7) and other materials on record, we are of the humble view that the prosecution has successfully established that the appellant has committed the murder of the deceased.
Decision
In view of the foregoing discussions, we hold that the learned trial Court has rightly held that the appellant intentionally and knowingly committed the murder of the deceased and justly convicted the appellant under section 302 of JCRLA No.22 of 2009 Page 25 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 26 // the I.P.C. Therefore, the JCRLA being devoid of merits, stands dismissed. The impugned judgment and order of conviction of the appellant under section 302 of the I.P.C. and the sentence passed thereunder by the learned trial Court is hereby confirmed. From the report furnished by the Senior Superintendent, Circle Jail, Baripada (Welfare Services), it appears that the appellant has been detained in custody since 15.10.2007 and his behaviour towards others is good and no jail offences have been committed by him and as per the report of the Jail Medical Officer, physical and mental health of the appellant is also good. Section 433-A of the Cr.P.C. reads as follows: "433-A. Restriction on powers of remission or commutation in certain cases: Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be JCRLA No.22 of 2009 Page 26 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 27 // released from prison unless he had served at least fourteen years of imprisonment." Section 55 of the I.P.C. reads as follows:- "55. Commutation of sentence of imprisonment for life: In every case in which sentence of imprisonment for life shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years." From the above provisions, it appears that whenever an accused is imposed with punishment to undergo imprisonment for life, his case for premature release shall be considered after he served at least fourteen years of imprisonment. The Government of Odisha has framed the Guidelines for Premature Release, 2022 for premature release of life convicts and it is stated to us by the learned State Counsel that it has already come into force after publication in the Odisha Gazette. In that view of the matter, we direct the jail authorities to recommend the case of the appellant, if he satisfies all the conditions, as stipulated in Jail Manual as well as 2022 Guidelines to the State Government for consideration of premature release. JCRLA No.22 of 2009 Page 27 of 28 Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Nov-2023 18:48:21 // 28 // Before parting with the case, we would like to put on record our appreciation to Ms. C. Kasturi, the learned Amicus Curiae for rendering her valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to her professional fees which is fixed at Rs.7,500/- (rupees seven thousand five hundred only). This Court also appreciates the valuable help and assistance provided by Mr. Sonak Mishra, learned Additional Standing Counsel appearing for the State. The trial Court records with a copy of this judgment be sent down to the concerned Court forthwith for information. A copy of the judgment be handed over to the learned counsel for the State for making necessary communication to the Senior Superintendent, Circle Jail, Baripada (Welfare Services). ........................... S.K. Sahoo, J. ............................... Chittaranjan Dash, J Orissa High Court, Cuttack The 9th November, 2023/Sipun JCRLA No.22 of 2009 Page 28 of 28