The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No. 40 of 2013 (An appeal U/S 383 of the Code of Criminal Procedure, 1973 against the judgment passed by Sri G.K. Mishra, Sessions Judge, Kalahandi, Bhawanipatna in C.T. (Sessions Case) No. 75 of 2011 arising out of Narla P.S Case No.9 of 2011 of the Court of J.M.F.C., M. Rampur). Arakhita Majhi … Appellant State of Orissa … Respondent -versus- For Appellant For Respondent : Mr. A. Rath, Advocate : Mrs. S. Pattanaik, AGA CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :01.11.2023 DATE OF JUDGMENT:04.12.2023 G. Satapathy, J. 1. This appeal assails the judgment of conviction passed on 23.05.2013 by the learned Sessions Judge, Kalahandi at Bhawanipatna in C.T. (Sessions Case) No. 75 of 2011 convicting the appellant for committing offence punishable U/S JCRLA No.40 of 2013 Page 1 of 15 302 of the IPC and sentencing him to undergo rigorous imprisonment for life with fine of Rs. 20,000/- (Rupees Twenty Thousand only) in default whereof, to undergo R.I. for further period of two months. 2. The prosecution case in brief is one Seshadev Putel (hereinafter referred to as the 8deceased9) was the priest of Lord Shiva Temple situated on mountain top in village Boringpadar and every day after performing puja, the deceased usually returns to his house in village. There is also another temple of Lord Radhakrushna near the aforesaid Lord Shiva temple and in such temple, one Padma Baba and Arakhita Majhi (hereinafter referred to as the 8convict9) were staying in a house adjacent to the temple by performing puja. Sukal Majhi, Duryo Maharana and Alekh Baba were also staying in a hut near Lord Shiva Temple. While the matter stood thus, on 01.02.2011 in the morning, as usual when the deceased was offering puja in the Lord Shiva JCRLA No.40 of 2013 Page 2 of 15 temple, the convict staying nearby attacked and killed the deceased by giving axe (M.O.-I) blows on his neck. On hearing the scream of the deceased, witnesses gathered there and caught hold of the convict. On this incident at about 10.30 A.M. on the same day i.e. 01.02.2011, P.W.1 Jatindra Putel, the son of the deceased lodged an F.I.R.(Ext.1), before the I.I.C. Narla P.S., who registered Narla P.S. Case No. 9 of 2011 against the convict for committing an offence U/S 302 of the IPC and directed S.I. of Police P.W.12 Mohanlal Chouhan to investigate the matter and thereafter, P.W.12 investigated the matter by visiting the spot, holding inquest over the dead body of the deceased, collecting the blood stained & sample earth from the spot, sending the body of the deceased to the hospital for postmortem examination, examining the witnesses including the informant, arresting the accused as well as making seizure of the wearing apparels of the JCRLA No.40 of 2013 Page 3 of 15 deceased and that of convict. After completion of investigation, as usual P.W.12 submitted charge sheet against the convict for offence U/S 302 of the IPC under which cognizance was taken and the convict was sent to trial which commenced when he denied to the charge for the aforesaid offence. 3. In support of the charge, prosecution examined 12 witnesses (PW1 to 12) in all and proved 13 documents vide Exts. 1 to 13 as well as identified the weapon of offence axe under M.O.-I as against no evidence whatsoever by the defence. The plea of the convict in the course of trial was denial simplicitor and false implication. 4. After appreciating the evidence on record upon hearing the parties, the learned trial Court convicted the appellant for offence U/S 302 of the IPC by mainly relying upon the evidence of P.Ws. 7, 9 and 10 as well as the extra-judicial-confession made by the convict. 5.
Legal Reasoning
Mr. A. Rath, learned counsel for the appellant has submitted that the learned trial JCRLA No.40 of 2013 Page 4 of 15 Court has convicted the appellant by heavily relying upon the evidence of P.W.7 without appreciating the same in proper prospective since P.W.7 was not at all an eye witness to the occurrence nor was there the presence of any eye witness to the occurrence and it would be hazardous to base the conviction on the basis of evidence of post-occurrence witness by further relying upon the extra-judicial-confession of the convict which is inherently a weak piece of evidence. Without disputing the homicidal death of the deceased, the learned counsel for the appellant has further submitted that if the evidence of P.W.7 is taken out of consideration, prosecution would be found with no reliable evidence to establish the guilt of the convict and thereby, relying upon the evidence of P.W.7, who is not an eye witness to the occurrence would not be proper. It is further submitted that considering the circumstance available on record, the prosecution case being shrouded with suspicion JCRLA No.40 of 2013 Page 5 of 15 and its genuineness being doubtful, benefit of doubt must be extended to the appellant, whose guilt for the offence has not at all been established beyond all reasonable doubts. Mr.Rath, accordingly, has prayed to allow the appeal by setting aside the impugned judgment of conviction and order of sentence. In reply, Mrs. S. Pattanaik, learned AGA has submitted that the evidence of P.W.7 is not only firm and convincing, but also lend assurance to the evidence of other witnesses and the chemical examination report sufficiently proves it beyond doubt that the convict had killed the deceased, which is clearly established for the convict not being able to offer any explanation as to the presence of blood stain of the deceased on his dhoti and M.O.-I and therefore, the guilt of the accused having been already established on the yardstick of beyond all reasonable doubts, the conviction of the appellant cannot be questioned. JCRLA No.40 of 2013 Page 6 of 15 Mrs. Pattanaik has, accordingly, prayed to dismiss the appeal. 6. After having bestowed an anxious and careful consideration to the rival submissions upon perusal of the impugned judgment meticulously and on going through the evidence on record extensively, this Court considers it prudent to examine the legal sustainability of the conviction of the appellant for offence U/S 302 of the IPC. It is, however, crucial that the most important aspect required to be considered by this Court at present is whether the prosecution has established its case against the appellant, who was found guilty by the learned trial Court, for committing the murder of the deceased. At this juncture, there appears no dispute that in a case of murder, the first point required to be established by the prosecution is homicidal death of the deceased and thereafter, the persons responsible for causing such death of the deceased. In this case, although there appears no challenge by the appellant to the JCRLA No.40 of 2013 Page 7 of 15 homicidal death of the deceased, but as an abundant precaution, this Court falls back upon the evidence of doctor to find out the nature of death of the deceased. P.W.5 Dr. Banamali Sahu, who had conducted autopsy over the dead body of the deceased, had testified in the Court that the chop wound of size 3= x 1= x 2= found over the back of neck of the deceased was ante mortem and homicidal in nature and could have been caused by a sharp cutting weapon like axe and the cause of death of the deceased was due to spinal injury. The evidence of Doctor-PW5 clearly establishes the homicidal death of the deceased which was not disputed by the appellant. 7. Quite understandably, the appellant seriously disputes his role as the author of the crime, yet the evidence of P.W.7 throws clear light on the participation of the appellant in the crime as the ocular testimony of P.W.7 clearly transpired that he was a priest in the Lord Radhakrushna temple of village Boringpadar at the relevant time JCRLA No.40 of 2013 Page 8 of 15 and the deceased was the priest of Lord Shiva temple, which is adjacent to the Radhakrushna temple and on hearing hullah, he rushed to the spot and found the appellant assaulting the deceased by means of tangia on the backside neck of the deceased and as a result, the deceased died at the spot and he rushed to the village to inform the matter to the villagers like Kartik Majhi, Shankar and others. It is the further evidence of P.W.7 that on his return to the spot, he found the appellant being caught hold by the villagers. P.W.7 had not only withstood the incisive cross- examination by the defence, but also came out successfully without his evidence being demolished on important aspect, no matter P.W.7 had admitted in his cross-examination that nobody was present at the time of incident in the Lord Shiva temple, but his evidence is quite clear and cogent that at the time of reaching at the spot, he found the deceased already dead and the appellant assaulting the deceased. The defence could not be JCRLA No.40 of 2013 Page 9 of 15 able to dispute the presence of P.W.7 at the spot inasmuch as his testimony discloses that on hearing hullah, he came to the spot. The material evidence of P.W.7 seems to have been corroborated by the evidence of P.Ws. 9 and 10 as P.W.9 had stated in his evidence that on the relevant day, he along with others were in the village and at that time, P.W.7 came and informed that the appellant had committed murder of the deceased and then he(PW9) came to the spot and found the appellant dragging the dead body of the deceased to outside the temple and they caught hold of the appellant at the spot. Similarly, P.W.10 had also testified in the Court that on hearing about the incident, he went to the spot and found the appellant dragging the deceased from the temple to outside and the evidence of P.Ws.9 and 10 further disclose that they caught hold of the appellant and on being asked, the appellant told that since the deceased did not offer any share out of the fund of the temple, he committed murder of JCRLA No.40 of 2013 Page 10 of 15 the deceased. It, therefore, appears that the aforesaid fact was the motive behind the crime. Both P.Ws. 9 and 10 were put to grueling cross- examination, but their evidence could not be broken on material particulars. True it is that the extra-judicial-confession is inherently a weak piece of evidence, but despite it being an inherently weak, but if the extra-judicial-confession as an item of evidence is found to be true and voluntary, it can be relied upon. Nonetheless, the extra judicial confession is not inadmissible as a rule, but it requires corroboration as a prudence and in this case, the extra-judicial-confession of the appellant is corroborated by the evidence of P.W.7, who even being not considered to be an eye witnesses to the occurrence had reached to the spot immediate after the occurrence and found the deceased lying dead and the appellant remaining present there with M.O.-I stained with blood, which is definitely a strong circumstance and in this case, the prosecution is not harping the JCRLA No.40 of 2013 Page 11 of 15 extra-judicial-confession as standalone item of evidence. On the contrary, the evidences of P.Ws. 7, 9 and 10 are not only clear, cogent, reliable and unimpeachable, but also give the details of account of all the act of the appellant, since such evidence suffers no infirmity or discrepancy. Already this Court has reappraised the evidence of P.W.7 which is crystal clear about the presence of the appellant and deceased at the spot and the appellant holding M.O.-I. Neither the defence in the trial nor the appellant in this Court could able to convince as to why P.W.7 would be considered as unreliable as he had no axe to grind against the appellant and he was in good relationship with the appellant as has been elicited in his cross- examination. It, therefore, clearly appears that there is no discrepancy or incongruity in the evidence of P.W.7 and the substratum of the case is squarely forthcoming from the evidence of P.W.7 which remains unchallenged and intact. JCRLA No.40 of 2013 Page 12 of 15 8. Yet, another important witness is P.W.12- the I.O., who had testified in the Court that he seized the weapon of offence i.e. axe (M.O.I), on production by the appellant under seizure list Ext.3 and also arrested the appellant as well as seized the wearing apparels of the deceased and that of the appellant. The evidence of P.W.12 further discloses that he had sent the aforesaid incriminating materials to RFSL, Berhampur for chemical examination and the chemical examination report was received under Ext.13. A careful comparison of Ext. 13 with Ext. 12 which is the forwarding letter of sending the incriminating materials to RFSL, it appears that not only M.O.-I contained human blood of <A= Group, but also the wearing dhoti of the appellant contained human blood <A= Group, but the appellant had failed to explain as to how his wearing apparel <dhoti= was stained with human blood of <A= Group, which was the blood group of the deceased. In the circumstance, it is definitely an incriminating JCRLA No.40 of 2013 Page 13 of 15 materials against the appellant and the same also lend assurance to the prosecution case. 9. On a reappraisal of the evidence on record in totality, it appears to the Court that the prosecution has established that the deceased had suffered homicidal death and the appellant was found near the dead body of the deceased at the spot with an axe found later in Ext. 13 stained with human blood of <A= group which was the blood group of the deceased, immediate after the occurrence as well as the dhoti of the appellant was found stained with such human blood group and immediately after the occurrence, the villagers reached at the spot including P.Ws. 9 and 10 before whom, the appellant had made extra- judicial-confession which does not suffer from any infirmity or inconsistency and therefore, in the circumstance, it is found beyond all reasonable doubt that the appellant was the author of the crime and thereby, his conviction for offence U/S 302 of the IPC cannot be questioned. JCRLA No.40 of 2013 Page 14 of 15 Consequently, no ground is made out to interfere with the finding of the learned trial Court. 10. In the result, the appeal stands dismissed. The judgment of conviction passed on 23.05.2013 by the learned Sessions Judge, Kalahandi at Bhawanipatna in C.T. (Sessions Case) No. 75 of 2011 are hereby confirmed. I Agree (G. Satapathy) Judge (D.Dash) Judge Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Reason: Authentication Location: High Court of Orissa Date: 05-Dec-2023 18:26:35 Orissa High Court, Cuttack, Dated the 4th day of December, 2023/S.Sasmal JCRLA No.40 of 2013 Page 15 of 15