MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.33 of 2009 In the matter of an Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 20th December, 2008 passed by the learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No.138 of 2007. ---- Bala @ Kunu @ Purna Chandra Bindhani -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.Bigyan Kumar Sharma, M. Jesthi, P.K. Sahoo, A.K. Mohapatra & R.K. Sahu (Advocates) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 09.07.2024 : Date of Judgment : 20.08.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 20th December, 2008 passed by the learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No.138 of 2007 arising out of CRLA No.33 of 2009 Page 1 of 13 G.R. Case No.169 of 2007 corresponding to Baripada Sadar P.S. Case No.15 of 2007 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Baripada. 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 11.02.2007, the Informant (P.W.5) on returning home at night from another village, came to learn that on that day, around 6.30 p.m., the accused had committed the murder of his wife by means of an axe as he was suspecting her to be practicing witch- craft. It is stated that after committing the murder, the accused confessed the guilt before one Baidhara Bindhani (P.W.6). The Informant (P.W.6) then came to his house and saw the deceased lying dead on the verandah of his house with the weapon (axe) fixed to her head. P.W.5 then submitted the information in writing with the Officer-in-Charge (O.I.C.), Baripada Sadar P.S. CRLA No.33 of 2009 Page 2 of 13 On receipt of the above report, the O.I.C (P.W.12) treated
Facts
the same as FIR (Ext.4) and upon registration of the case, took up the investigation. 3. The Investigating Officer (I.O.-P.W.12), in course of the investigation, examined the informant (P.W.5) and recorded his statement under section 161 Cr.P.C. The I.O. (P.W.12), having visited the spot, prepared the spot map (Ext.7). He (P.W.12) held the inquest over the dead body of the deceased and prepared the report to that effect (Ext.1) and sent the dead body of the deceased for post mortem examination by issuing necessary requisition. The I.O. (P.W.12) thereafter has arrested the accused and forwarded him in custody to Court. The I.O. (P.W.12) sent the seized incriminating articles for chemical examination through Court. On completion of the investigation, the I.O. (P.W.12) submitted the Final Form placing this accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Baripada, 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 this accused. CRLA No.33 of 2009 Page 3 of 13 5. The prosecution, in support of its case, has examined in total twelve (12) witnesses during Trial. Out of them, the informant, who is the husband of the deceased, is P.W.5. P.W.6 is a witness to the extra judicial confession. P.Ws.1 and 10 are the witnesses to the inquest. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.2. P.W.3 is the scribe of the FIR (Ext.4). The I.O, at the end, has come to the witness box as P.W.12. 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 12. Out of those, the important are, the FIR (Ext.4), the inquest report (Ext.1); the post mortem report (Ext.2); and the spot map (Ext.7). The report of the Chemical Examiner had been admitted in evidence and marked Ext.11. 7. The accused has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of such plea.
Legal Reasoning
In view of all the aforesaid, we find that the finding of guilt against the accused, as has been returned by the Trial Court, is liable to be set aside. Accordingly, it is held that the judgment of conviction and order of sentence, which are impugned in this Appeal, cannot be sustained. 15. Having held, as above, although we find the report of the concerned Juvenile Justice Board with us that the accused was a ‘Juvenile-in-Conflict’ with law as on the date of occurrence, we find no more the necessity to touch upon the submissions in that regard as having adverse impact on the outcome of the Trial Court as that, in our view, would simply be of academic interest without serving any purpose in the matter. 16. Accordingly, we allow this Appeal and set aside the judgment of conviction and order of sentence dated 20th CRLA No.33 of 2009 Page 12 of 13 December, 2008 passed by the learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No.138 of 2007. Since the Appellant, namely, Bala @ Kunu @ Purna Chandra Bindhani, is on bail, his bail bonds shall stand cancelled. V. Narasingh, J. I Agree. (D. Dash), Judge. (V. Narasingh), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 27-Aug-2024 12:15:12 CRLA No.33 of 2009 Page 13 of 13
Arguments
8. Mr.B. Sharma, learned counsel for the Appellant (accused) first of all submitted that the prosecution case is mainly based upon the extra judicial confession said to have been made by the accused before P.W.6, which is stated to have received CRLA No.33 of 2009 Page 4 of 13 corroboration from P.W.7. He further submitted that the Trial Court, without properly analyzing the evidence of P.Ws.6 & 7, has gone wrong in holding that it was the accused, who had confessed to have caused the death of the deceased before P.W.6 by going to his house. He, for the purpose, has invited our attention to the depositions of P.Ws.6 & 7. He then submitted that when the Trial Court has said that P.W.7 has corroborated the evidence of P.W.6, that is not correct since P.W.7 does not state that P.W.6 had stated before him the fact that the accused had been to him and had confessed the crime before him. He then submitted that except the above evidence, the other materials noted by the Trial Court in paragraph-29 of the judgment even if are accepted for a moment, cannot lead to a conclusive finding attributing the authorship of the fatal injury upon the deceased to this accused. It was also submitted that the Trial Court, having erred in accepting the evidence as to the extra judicial confession stated to have been made by the accused when other circumstances as pointed out in paragraph-29 of the judgment of the Trial Court are not at all incriminating against the accused, it ought not to have held that prosecution has established the charge against the accused beyond reasonable doubt. He submitted that the evidence on the score of the extra judicial confession do not pass through the acid tests laid down for the CRLA No.33 of 2009 Page 5 of 13 acceptance. He next submitted that since the accused on the date of commission of the offence was a ‘Juvenile-in-Conflict’ with law as defined in the Juvenile Justice (Care and Protection of Children) Act, 2000, the regular trial ought not to have been taken up and the procedure prescribed in the Act and the Rules made thereunder ought to have been followed, which was the mandate of law. He, therefore, submitted that the Trial stands vitiated and, therefore, the outcome holding the accused guilty of commission of the offence under section 302 of the IPC and the sentence imposed on him to undergo imprisonment for life and pay fine of Rs.2,000/- (Rupees Two Thousand) with the default stipulation are liable to be quashed on that ground alone. 9. Mr.P.K. Mohanty, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt against the accused, as has been returned by the Trial court, contended that the evidence of P.W.6 is wholly believable to the extent that it was the accused, who had gone to his house after the incident and had confessed before him to have committed the murder of the deceased. He further submitted that there is absolutely no material to raise any doubt on the version of P.W.6 and in addition to that, the evidence of P.W.6 receives the corroboration from the evidence of P.W.7. According to him, the CRLA No.33 of 2009 Page 6 of 13 same coupled with other evidence that immediately after the said confession, the dead body of the deceased was found in her house, the subsequent disclosure of P.W.6 before P.W.7 as regards the happenings in the incident as told by the accused are enough to fasten the guilt upon the accused. He submitted that there being no material to suggest that P.W.6 had any axe to grind against the accused; there is no ground to disbelieve his evidence as to extra judicial confession when he being very close to the accused, there was all the reason for the accused to repose confidence on him. He next submitted that during the entire Trial, the plea of juvenility of the accused had never been raised and that, having been raised only in the Appeal, now in the event the Court arrives at a conclusion that the accused was a ‘Juvenile- in-Conflict’ with law as defined under the Act, the matter would call for an inquiry by the Juvenile Justice Board as provided under the said Act and the Rules made thereunder. 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.12) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.12. CRLA No.33 of 2009 Page 7 of 13 11. The nature of the death of the deceased has been proved to be homicidal through the evidence of the Doctor (P.W.2), who had conducted the autopsy over the dead body of the deceased. The deposition of P.W.2 would reveal that the defence has not challenged the opinion of the Doctor that the death of the deceased was on account of the injury to the vital organ like brain as also its nature to be homicidal. He has also stated that the injury was possible by the axe. The evidence of the Doctor (P.W.2) also receive support from the evidence of P.W.12, the I.O., who had held the inquest over the dead body of the deceased and prepared his report (Ext.1) noting all such injuries therein in his language. That apart, we find the evidence of P.Ws.5, 6 & 7, who have stated to have seen the deceased lying dead with such injury on her head and the axe being fixed thereto. With all such overwhelming evidence on record, we have no other option but to concur with the finding of the Trial Court that the deceased met a homicidal death. 12. Coming to address the rival submission of the parties touching upon the sustainability of the finding of guilt of the accused, this Court is called upon to undertake the exercise of critical examination of the evidence let in by the prosecution in that regard. CRLA No.33 of 2009 Page 8 of 13 P.W.1 has stated to have not seen the occurrence. As per his evidence, when he arrived at the spot, police had already reached there. He is just a signatory to the inquest report (Ext.1). P.W.3 is the scribe of the FIR (Ext.4) lodged by P.W.5. It is his evidence that P.W.5 told him that the accused had committed of his wife and asked him to scribe the FIR (Ext.4), which he did. He has no direct knowledge as regards the occurrence or any happenings in connection with the same. 13. Next comes the evidence of the husband of the deceased, who is the Informant in the case and has been examined as P.W.5. At the time of occurrence, he was not present in his house and he returned from his work place. It is stated that P.W.6 and others came to him and told that the accused had committed the murder of his wife after which he went to the P.S. for lodging the FIR. Then as we proceed to read the evidence of P.W.6, we find him to have stated that on that date around 7.00 p.m., when he was in his house, the accused came there and confessed before him to have committed the murder of the wife of P.W.5 in her house and thereafter this witness (P.W.6) went to the house of the deceased and saw the wife of P.W.5 lying dead on the Verandah of the house with the axe fixed on her head. It is his evidence that he then with P.W.7, the Sarpanch of the village Gram Panchayat CRLA No.33 of 2009 Page 9 of 13 went to Village-Sindurgoura where P.W.5 was working as a labourer and informed him about the incident. P.W.5 is silent that P.W.6 had ever told him that the accused, having come to his house, had confessed to have committed the murder of the deceased. It is also not important to note that P.W.6 does not say as to what was the mental condition of the accused when he had come to his house. He is also not stating to have asked anything more about the incident from the accused about the incident, which runs against the normal human conduct and instinct that at least after hearing such an incident to have happened from none other than the author, one would like to know the reason and any happenings prior to that as also the planning behind the same. This P.W.6 also does not state that the accused was bearing any grudge against the deceased or to be having any animosity with the family of the deceased. P.W.5 is the brother-in-law of this P.W.6 and the FIR (Ext.4) is seen to be running differently that on his arrival in his village, he heard that the accused had committed the murder of his wife. He does not state that P.Ws.6 & 7 had been to the village where he was working to inform this news of death of his wife, which P.W.6 says. P.W.6 is also silent as to what the accused did after confessing the crime before him; whether he remained in the CRLA No.33 of 2009 Page 10 of 13 house for some time or immediately left the place and how was he then behaving or conducting himself. This P.W.6 appears to have not exhibited normal human conduct after hearing from the accused, which ought to have been ideally done at least by raising hullah in the village just after hearing from the accused. He does not state to have immediately informed about the said confession of the accused before P.W.7. His evidence do not provide any indication as to how the accused reposed confidence on him when he too does not state that accused being in a state of remorse or repentance disclosed what he did done to make himself feel lighter. The evidence of P.W.7 is also not on the score that P.W.6 had told him about the said confession of the accused. His evidence is that P.W.6 had expressed before him that the accused had committed the murder of the deceased by means of the Axe. P.W.8 is the other witness, who is the elder brother of the Informant (P.W.5). He is also silent about the fact that at any point of time, P.W.6 had divulged before him regarding the confession of the accused, who too has been arrested on the very day of occurrence. 14. In view of the aforesaid discussion of the evidence let in by the prosecution; we find it unsafe to rely upon the evidence of CRLA No.33 of 2009 Page 11 of 13 P.Ws.6 & 7 in holding that the prosecution through them has proved that the accused had confessed before P.W.6 to have intentionally caused the death of the deceased. Having said above, when we read paragraph-29 of the judgment of the Trial Court, we find that other materials pointed out therein are not incriminating against the accused and have no significance in standing to the aid of the prosecution.