The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.61 of 2011 In the matter of an Appeal under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 30th June, 2011 passed by the learned Additional Sessions Judge (FTC), Malkangiri in Criminal Trial No.11 of 2011. Balaram Jani ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Sidhartha Swain (Advocate) For Respondent - Mr.Soubhagya Ketan Nayak Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 01.12.2023 : Date of Judgment : 19.12.2023 The Appellant, by filing this Appeal from inside the D.Dash,J. jail, has called in question the judgment of conviction and order of sentence dated 30th June, 2011 passed by the learned Additional Sessions Judge (FTC), Malkangiri in Criminal Trial No.11 of 2011 arising out of G.R. Case No.243 of 2010 corresponding to Malkangiri P.S. Case No.117 of 2010 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Malkangiri. JCRLA No.61 of 2011 Page 1 of 9 {{ 2 }} The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.2,000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment for six (6) months for commission of the said offence. 2. PROSECUTION CASE:- On 10.10.2010, the Informant, namely, Hari Muduli (P.W.6) lodged a written report being scribed by one Birupakhya Swain (P.W.7) with the Inspector-in-Charge (IIC) of Malkangiri Police Station (P.S.) stating therein that in or about the year 2007, when his brother (Badal Muduli) died, the wife of Badal, namely, Padma Muduli was residing in the house at Kumutiguda with her son and two daughters. However, sometime in the month of September, 2010 or so, the accused had taken Padma and kept her in his house where they were living as husband and wife. When the Informant (P.W.6) was in his housed, on 10.10.2010, one Nanda (P.W.1) of Bugiguda informed him that the accused, committing the murder of that Padma, had thrown the dead body in Goidangar. The Informant (P.W.6) then told the accused to show the place where he had thrown the dead body of his sister- in-law (Padma) after committing her murder. The accused agreed to the proposal and thereafter, the Informant (P.W.6), being JCRLA No.61 of 2011 Page 2 of 9 {{ 3 }} accompanied by Rabi Muduli, Umesh Jani (P.W.5), Buduram (P.W.3) and Hari Muduli went to Goidanagar and then the accused showed the place where he had committed the murder of Padma and the spot where the dead body was lying near a stone. Receiving the above written report from the Informant (P.W.6), the I.I.C., Malkangiri P.S. treated the same as F.I.R. (Ext.2) and upon registration of the case, directed the Sub- Inspector (S.I.) of Police (P.W.13) to take up the investigation. 3. The Investigating Officer (I.O.-P.W.13), in course of the investigation, examined the informant (P.W.6) and the scribe of the F.I.R., i.e., P.W.7 as also other witnesses and recorded their statements under section 161 of the Cr.P.C. The I.O. (P.W.13), having visited the spot, prepared the spot map (Ext.17). He too held the inquest over the dead body in presence of the witnesses and prepared the report (Ext.1). He (P.W.13) sent the dead body of Padma for post mortem examination by issuing necessary requisition. The wearing apparels of the deceased and one axe were seized under seizure list (Ext.13). The seized incriminating articles were sent for chemical examination through Court. On completion of investigation, the Final Form was submitted placing this accused to face the Trial for commission of the offence under section 302 of the IPC. JCRLA No.61 of 2011 Page 3 of 9 {{ 4 }} 4. Learned S.D.J.M., Malkangiri, on receipt of the Final Form, took cognizance of the said offence and after observing the formalities committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against the accused. 5. The prosecution, in support of its case, has examined in total fourteen (14) witnesses during Trial. Out of them, the informant, who happens to be the elder brother of deceased- husband of Padma is P.W.6. P.W.1 is a witness to the extra- judicial confession. P.Ws.2, 3, 4 & 4 are the inhabitants of Village- Kumutiguda, who have apprehended the accused whereafter the accused is said to have led them to the spot. P.W.7 is the scribe of the F.I.R. (Ext.2). P.W.8 is a witness to the seizure of sample nail clippings. P.W.10 is a witness to the wearing apparels of the deceased. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.11 whereas the Doctor, who had medically examined the accused has been examined as P.W.14. The I.O. of the case is P.W.13. 6. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 19.
Legal Reasoning
Out of those, the important are, the FIR (Ext.2), the inquest report (Ext.1), the post mortem report (Ext.10) and the spot map (Ext.17). JCRLA No.61 of 2011 Page 4 of 9 {{ 5 }} The Chemical Examiner’s report had been admitted into evidence and marked Ext.19. 7. The accused has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of his defence.
Legal Reasoning
8. Mr.Sidhartha Swain, learned counsel for the Appellant (accused) submitted that the prosecution case here is based on the extra judicial confession said to have been made by the accused, which the prosecution has sought to prove through P.Ws.1, 2, 3 & 4 as also the factum of recovery of the dead body of Padma at the instance of the deceased by taking the villagers to the place and showing the dead body lying there. He further submitted that the prosecution witnesses as regards the extra judicial confession is wholly unbelievable and the discovery of the dead body at the instance of the accused is also highly doubtful when it is there in the evidence that as the deceased was living with the accused, all were suspecting the accused as the perpetrator of the crime. He submitted that the evidence, being accepted, as laid although give rise to a suspicion as to the involvement of the accused, yet to that cannot be said to be enough for the conviction. He, therefore, submitted that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside. JCRLA No.61 of 2011 Page 5 of 9 {{ 6 }} 9. Mr.S.K.Nayak, learned Additional Government Advocate, while supporting the finding of guilt against the accused as has been returned by the Trial court, submitted that when such number of persons have deposed about the extra judicial confession of the accused and when the fact that they were living in one house as husband and wife is established through the evidence, the recovery of the dead body being proved to have been made at the instance of the accused when the villagers intervened, who had absolutely no axe to grind against the accused, the Trial Court has rightly convicted the accused for having committed the murder of Padma. 10. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.W.1 to P.W.14) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.19. 11. Before going to address the rival submission and judge the sustainability of the finding of guilt as has been returned by the Trial Court against the accused, it be stated that the death of the deceased is found to have been proved to be homicidal by the Trial Court. We find the evidence of the Doctor (P.W.11), who had conducted the autopsy over the dead body of Padma, to the effect that during internal examination, he had noticed one JCRLA No.61 of 2011 Page 6 of 9 {{ 7 }} communated fracture the right temporal bone with protruding liquid brain matters and the meninges found torn underneath the fracture. Such injury has been stated to be ante mortem in nature. All these findings, having been deposed on oath by P.W.11, when too find indicated in the post mortem report (Ext.10); we find no such challenge to the same. Thus, we are led to hold that the prosecution that the death of the deceased was on account of the injury on her head. It has been stated by P.W.1 that in the Saturday night, accused came to their locality and disclosed before him in his house to have committed the murder of his wife when the wife of P.W.1 was also present in the house and engaged in cooking. When P.W.1 states to have been told by the accused that he had killed his wife, the conduct of P.W.1 stands that he did not disclose the said fact to any other person. He next states to have disclosed about such confession of the accused around 8.00 a.m. to 9.00 a.m. to one Dukhu examined as P.W.9. Now, that P.W.2 has stated that P.W.1, having gone to him, had disclosed the accused to have confessed before him as to have committed the murder of his wife (Padma) and told this fact to Hari, who is the elder brother of first husband of Padma. It is also stated by P.W.2 that the accused told that he had committed the murder of Padma in the jungle and so saying, he led to them to that place and showed the dead body of Padma. The place, JCRLA No.61 of 2011 Page 7 of 9 {{ 8 }} where the dead body was lying, was an open space. He, however, during cross-examination, has stated that the people of their locality caught hold of the accused after three days of information being given by P.W.1 and before them, the accused confessed to have committed the murder of his wife (Padma). This being the evidence of P.W.2, now P.W.3 states that he with Umesh (P.W.5), Jagannath and others had caught hold of the accused when he was at Malkangiri Bus Stand and he then led them to the Goidangar and showed the dead body. This witness (P.W.3) is none other than the son-in-law of the deceased. He also states that when they asked the accused as to how Padma died, the accused refused to answer. P.W.4 has stated in a different manner that the accused, being asked after being restrained, told them that Padma was in the mountain. The evidence of P.W.5 is to the effect that the accused confessed before him that he had committed of his wife and had requested him to visit the spot. The evidence of this witness not only appears to be improbable when we find absolutely no reason that the accused would not only be confessing about the act he performed but also that he would carry villagers to the place for showing the dead body and finally showing the same. At the same time, the witness (P.W.1) states that he accused came and disclosed about the commission of the offence. In fact, it is JCRLA No.61 of 2011 Page 8 of 9 {{ 9 }} extremely difficult for anyone to accept for a moment that a person, committing the murder, would himself come near the other villagers for telling them as to the offence he committed and then he would take them to the place is showing the dead body when there is no other intervening events. All these being the evidence on record, which we have discussed, we are of the considered view that the prosecution cannot be said to have established the charge against the accused beyond reasonable doubt. 12. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 30th June, 2011 passed by the learned Additional Sessions Judge (FTC), Malkangiri in Criminal Trial No.11 of 2011, are hereby set aside. Since the accused, namely, Balaram Jani is in custody, he be set at liberty forthwith if his detention is not required in connection with any other case. G.Satapathy, J. I Agree. Signature Not Verified Basu Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 20-Dec-2023 15:59:18 JCRLA No.61 of 2011 (D. Dash), Judge. (G.Satapathy), Judge. Page 9 of 9