MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH DATE OF HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.93 of 2010 In The matter of an Appeal under section-383 of the Code of Criminal Procedure, 1973 and from the judgment and order of sentence dated 25th November 2010 passed by the learned Additional Sessions Judge, Fast Track Court, Rourkela, Camp- Bonai in Sessions Trial Case No.121/119 of 2007-2009. Budhu Munda …. Appellant ---- -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellant Mr.Laxmi Narayan Patel, - Advocate. For Respondent
Legal Reasoning
- Mr. P.K. Maharaj, Addl. Standing Counsel. CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH DATE OF HEARING :21.08.2024 : DATE OF JUDGMENT: 04.09.2024 The Appellant, from inside the jail, has assailed the judgment of conviction and order of sentence dated 25th November 2010 passed by the learned Additional Sessions Judge, Fast Track Court, Rourkela, Camp-Bonai in Sessions Trial Case No.121/119 of 2007 arising out of G.R. Case No. 338 of 2007 JCRLA No.93 of 2010 Page 1 of 9 corresponding to Koira P.S. Case No.58 of 2007 of the file of learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Bonai. The Appellant (accused) thereunder has been convicted for commission of offence under section-302 of the Indian Penal Code, 1860 (for short called as the IPC). Accordingly, the Appellant (accused) have been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- in default to undergo rigorous imprisonment for a period of two (2) years. 2. Prosecution Case: - On 17.07.2007, a quarrel had taken place between the accused and Fulamani. Fulamani then had threatened the accused with dire consequences. On the previous day, Jena Munda (Informant-P.W.1) had been to his uncle’s house. On his return, he was informed by his wife, that while Fulamani was sleeping under the jackfruit tree, the accused came and threshed a stone on her head resulting instantaneous death. It is stated that the accused was suspecting the deceased to have been practicing witchcraft. The matter being orally reported by P.W.1 before the S.I. of Police, Koira Police Station (P.W.10) when was then present at the Police Station in the absence of the IIC; the same was reduced into writing (Ext.8). The Informant (P.W.1) put his LTI after having understood the contents of the report to have been correctly noted being read over and explained. The Investigation then commenced after registration of the case. Page 2 of 9 JCRLA No.93 of 2010 3. The first Investigating Officer (I.O.-P.W.10), in course of the investigation, examined the informant (P.W.1) and other witnesses (co-villagers), visited the spot, prepared spot map (Ext.9), seized the weapon of offence i.e., stone from the spot, seized one red colour saree, sample earth and blood-stained earth from the spot. The I.O. (P.W.10) held the inquest over the dead body of the deceased (Fulamani Munda) and sent the dead body of the deceased to CHC, Koira for postmortem examination issuing dead body challan (Ext.10) to that effect. He (P.W.10) arrested accused, seized the wearing apparels of the deceased in presence of the witnesses. The I.O. (P.W.10) then sent the accused to CHC, Koira for collection of nail clippings and blood sample under requisition and received the postmortem report from the Medical Officer, CHC, Koira. The first I.O. (P.W.10) being transferred, made over the charge of investigation to the IIC, Koira P.S. (P.W.11). The second I.O. (P.W.11) on receipt of the charge of the investigation, sent the seized incriminating materials to the RFSL, Berhampur for chemical examination through Court. Investigation in this way continued and ultimately, Final Form was submitted by the second I.O. (P.W.10) placing this accused to face the trial for commission of offence under section-302 of the IPC. 4. Learned S.D.J.M., Bonai having received the Final Form as above, took cognizance of the offence under section-302 of the Page 3 of 9 JCRLA No.93 of 2010 IPC and after observing formalities, committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the said offence against the accused. 5. The prosecution in the trial has examined in total eleven (11) witnesses. Out of whom as already stated, the Informant-Jena Munda is none other than his mother, whereas P.W.4 is the brother of the deceased and accused is his nephew and P.W.7 is the daughter-in-law of the deceased and wife of the Informant and witness to occurrence, P.Ws.2 and 3 are the co-villagers of the accused and the deceased, P.Ws.5 and 6 are the co-villager and post occurrence witnesses, P.W.8 is the constable attached to Koira P.S., P.W.9 is the Doctor, who conducted autopsy over the dead body of the deceased. The two Investigating Officers are P.Ws.10 and 11. The prosecution besides piloting the evidence by examining the above witnesses has proved several documents which have been marked as Exts.1 to 13. Out of those, important are the F.I.R. (Ext.1), Ext.1/4, formal F.I.R., Ext.2, inquest report, Ext.11, postmortem report, Ext.28, spot visit report and chemical examination report (Ext.31). 6. The defence plea is that of complete denial and false implication. JCRLA No.93 of 2010 Page 4 of 9 7. The Trial Court on examination of the evidence let in by the prosecution and upon their evaluation has finally found that the charge against the accused for commission of offence under section -302 of the IPC has been established beyond reasonable doubt. Accordingly, the accused (Budhu Munda) having been convicted for commission of offence under section-302 of the IPC and he has been sentenced as aforestated. 8. Learned Counsel for the Appellant (accused) submitted that the prosecution case here is based on the solitary testimony of P.W.7, who has stated to have seen the accused thrashing a stone on the head of the deceased. She further submitted that the Trial Court without proper analysis of said evidence of P.W.7 in the backdrop of other evidence available and without examining the same from different angles has erred both on fact and law in placing the implicit reliance on the same to fasten the guilt upon the accused. Placing the deposition of P.W.7, she pointed out the discrepancies which would be discussed in the paragraphs to follow. She further submitted that since the evidence of P.W.7 cannot be said to be wholly reliable for being placed above board; the Trial Court ought to have held the prosecution to have not been successful in establishing the charge against the accused basing on said evidence. He, therefore, urged that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside. JCRLA No.93 of 2010 Page 5 of 9 9. Learned Additional Standing Counsel for Respondent-State while supporting the finding of guilt against the accused as has been returned by the Trial Court contended that with the available evidence on record, the judgment of conviction passed by the Trial Court is unassailable. He submitted that the Trial Court being fully aware of the settled position of law as regards fastening the guilt upon the accused basing upon the solitary testimony of the witnesses, more particularly, the standard of evidence of that witnesses as needed has rightly accepted the evidence of P.W.7. He further submitted that the evidence of P.W.7 also receive corroboration from the facts and circumstances emerged in evidence of other witnesses including the Doctor (P.W.9) who had held postmortem examination over the dead body. He, therefore, submitted that the judgment of conviction and order of sentence impugned in this Appeal should stand confirmed. 10. Keeping in view the submissions made; we have carefully read the judgment passed by the Trial Court and have extensively travelled through the evidence adduced by the prosecution witnesses i.e. P.Ws. 1 to 11. The documents admitted in evidence and marked Exts.1 to 13 from the side of the prosecution have been perused. JCRLA No.93 of 2010 Page 6 of 9 11. As already stated, P.W.1 although is the Informant has not seen the witnesses and he has heard everything about the incident from his wife, when he saw the dead body of his mother with injury on his return to home. That fact being so noted in the F.I.R., Ext.8 has been stated by P.W.1 in the Trial. The wife of P.W.1 is P.W.7. He has stated that on that day, her husband P.W.1 had gone to village Malda and she was very much present at the relevant time in the house. Her evidence is that her mother-in- law, Fulamani was then sleeping under the jackfruit tree after taking her meal and it was around 4 pm she saw accused coming with a stone and thrashing the same on the left side ear of Fulamani (mother-in-law of P.W.7). Her evidence is that at the relevant time one Pandu Munda was also present near the spot. It is also stated by her that accused was not pulling on well with them for last so many years. Careful perusal of the deposition does not reveal that any material has been elicited from P.W.7 to take a view that she was suppressing something or exaggerating the happenings on any material aspect. The evidence of P.W.7 derive fully corroboration from the evidence of P.W.9, who is the Doctor conducted autopsy over the dead body of the deceased. The corroboration is on the score the seat of injuries, the nature of injuries and lastly regarding the user of the object in causing the injuries. JCRLA No.93 of 2010 Page 7 of 9 Pandu as named by P.W.7 to have been seen the incident has been examined as P.W.6, has categorically stated that when deceased was sleeping under a jackfruit tree near her house; accused thrashed a big stone on the root of the ear for which she sustained injuries and died at the spot. He has further stated that accused after the incident fled away from the spot. He also assets to have accompanied P.W.1 to the Police Station. He having not stated as to the injury to have been caused on the left or right ear is of no such significance to be taken note of to doubt her entire version. Thus, the evidence of P.Ws.6 and 7 when seen with the evidence of the Doctor, P.W.9, the same are found to be free from any such glaring infirmity so as to raise suspicion over the same. This leads us to confirmation the finding of the Trial Court that the prosecution has established the charge against the accused beyond reasonable doubt. 12. With the above discussion prosecution evidence, we are of the considered view that a finding is inevitable that it is the accused who had committed the murder of Fulamani (deceased) resulting her death. 13. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 25th November 2010 passed by the learned Additional Sessions Judge, Fast Track JCRLA No.93 of 2010 Page 8 of 9 Court, Rourkela, Camp-Bonai in Sessions Trial Case No.121/119 of 2007, are hereby confirmed. The accused, namely, Budhu Munda, being on bail, is directed to surrender before the Trial Court forthwith to serve out the sentence. (V. Narasingh) Judge Narayan (D. Dash) Judge Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 04-Sep-2024 16:46:26 JCRLA No.93 of 2010 Page 9 of 9