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IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.80 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 14th November, 2011 passed by the learned Adhoc Additional District and Sessions Fast Track Court, Keonjhar in Sessions Trial Case No.01/199 of 2011. ---- Naba Juanga …. Appellant -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: -------------------------------------------------------------------------------- - For Appellant Mrs. M. Panda, Advocate. For Respondent - Mr. G.N. Rout, Addl. Standing Counsel. CORAM: MR. JUSTICE D.DASH MR. JUSTICE A.C. BEHERA DATE OF HEARING:11.09.2023: DATE OF JUDGMENT:14.09.2023 D.Dash, J. The Appellant from inside the jail has assailed the judgment of conviction and order of sentence dated 14th November, 2011 passed by the learned Adhoc Additional District and Sessions Fast Track Court, Keonjhar in Sessions Trial Case No.01/199 of 2011 arising out of Daitari P.S. Case JCRLA NO. 80 OF 2011 Page 1 of 11 {{ 2 }} No.07 of 2011 corresponding to G.R. Case No.279 of 2011 of the file of learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Keonjhar. The Appellant (accused) thereunder has been convicted for commission of offence under section-302 of the Indian Penal Code, 1860 (for short ‘the IPC’) and accordingly, he has been sentenced to imprisonment for life till his death without any remission and pay fine of Rs.5,000/- (Rupees Five Thousand) and no default stipulation is made due to the fact that he is awarded with sentence of imprisonment for life till his death. 2. Prosecution case is that in the intervening night of 09/10.04.2011, the accused being highly enraged after the quarrel in his house has murdered his two years old son Nanda Juanga and his mother-in-law namely, Gurubari Juanga. A written report (Ext.1) to the above effect has been lodged by the Ward Member of Talapada (Gumundu Sahi) of Bareigoda Gram Panchayat namely, Gadadhar Juanga (P.W.1) with the Sub-Inspector (S.I.) of Police, Daitari Police Station, who in absence of Inspector-In-Charge (IIC) was discharging the duty as such. Said S.I. (P.W.10), receiving the report, treated the same as F.I.R.(Ext.1) and upon the registration of the case, took up investigation. He examined the Informant (P.W.1) and went to the spot where he Page 2 of 11 JCRLA NO. 80 OF 2011 {{ 3 }} examined other witnesses and recorded their statements. He also prepared spot map, Ext.10. The inquest over the dead bodies were held and the reports to that effect, i.e., Ext.2 and 3 were prepared. The dead bodies were then sent for postmortem examination by issuing necessary requisitions. Some incriminating articles were seized on production by the Police Constable, who had accompanied the dead bodies for postmortem examination. The accused, having taken the attempt to commit suicide by inflicting injuries on his person since had sustained injuries remained under treatment in the hospital for some time. So, the I.O. (P.W.10) in course of investigation has also seized all said documents. The incriminating articles were sent for chemical examination through Court. On completion of investigation, Final Form was submitted by the I.O.(P.W.10), placing the accused to face the trial for commission of offence under section-302/309 of the IPC. 3. Learned Sub-Divisional Judicial Magistrate (S.D.J.M.) Keonjhar having received the Final Form as above, took cognizance of the said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge against the accused for the said offences. JCRLA NO. 80 OF 2011 Page 3 of 11 {{ 4 }} 4. In the Trial, the prosecution examined in total ten (10) witnesses. As already stated the Informant who had lodged the F.I.R. (Ext.1) is P.W.1. P.W.2 is a neighbour before whom the wife of the accused examined as P.W.4 has immediately disclosed the happenings in their house in that night, more particularly, the role played and the act done by the accused. P.W.3 is also a neighbour of the accused whereas P.W.5 is their seven year old daughter; P.W.6 is the person who had accompanied P.W.1 to the Police Station for lodging the F.I.R and the Doctor who had conducted postmortem over the dead bodies of the deceased persons is P.W.9; whereas the I.O. has been examined as P.W.10. The prosecution besides leading evidence by examining the above witnesses has proved several documents which have been admitted in evidence and marked Exts.1 to 14. Out of those, the important are the F.I.R.(Ext.1), inquest reports Exts.2 and 3, postmortem reports Exts.8 & 9. The spot map has been admitted in evidence and marked Ext.10. 5. The plea of the accused is that of complete denial and false implication. The accused, however, has not tendered any evidence in support of his defence. JCRLA NO. 80 OF 2011 Page 4 of 11 {{ 5 }} 6. Learned Counsel for the Appellant(accused), without disputing the finding as to the nature of death is due to homicidal of Gurubari Juanga and Nanda Juanga, the minor son of the accused and P.W.4 as homicidal and the mother- in-law of accused and mother of P.W.4 submitted that the entire prosecution case is based on the evidence of P.Ws.4, 5 and 6. According to him, the Trial Court without proper analysis of the same is not right in holding that the prosecution through such evidence has established the charges against the accused beyond reasonable doubt in concluding that it is he who had murdered his two year old son as well as the mother-in-law. He submitted that as per the evidence of P.W.4, she had not seen the accused throttling their minor son and her evidence that accused, threshed the stone on Gurubari which led to her death is not acceptable. He submitted that the P.W.4, being an interested witness, the Trial Court, without detail scrutiny, ought not to have accepted her evidence as laid. He further submitted that the evidence of child witness, P.W.5 even if read as a whole do not provide any support to the prosecution case in establishing the complicity of the accused. He further submitted that when the evidence of P.W.4 is not believable, the evidence of P.W.6 before whom JCRLA NO. 80 OF 2011 Page 5 of 11 {{ 6 }} P.W.4 is said to have described on his arrival in the house get pushed beyond the arena of consideration. 7. Learned Counsel for the State-Respondent submitted that the evidence of P.W.4 when read as a whole, it has to be certified as of starling character. He further submitted that even if the evidence of P.W.5 is not taken into account, the evidence of P.W.4 is enough for returning the finding of guilt against the accused in intentionally causing the death of his two year old son and mother-in-law. He further submitted that the evidence of P.W.4 receives corroboration from the evidence of P.W.6, before whom she had immediately disclosed all those happenings and there was no scope for any concoction. 8. Keeping in view the submissions made; we have carefully gone through the judgment passed by the Trial Court and we have also extensively travelled through the depositions of the prosecution witnesses i.e. P.Ws.1 to 10 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 14. 9. Regard being had to the submission of the learned
Legal Reasoning
Counsel for the accused, we find that as regards the nature of death of two years old son and the mother-in-law of the accused, the Doctor who had conducted postmortem JCRLA NO. 80 OF 2011 Page 6 of 11 {{ 7 }} examination over the dead bodies i.e. P.W.9 has clearly stated that Nanda Juanga male child of two years old on account of asphyxia. He had noticed the clots of blood inside the mouth, swelling over the front of neck, bruises over front of neck, fracture dislocation of cervical vertebra, haematoma of both occipital region. It is also his evidence that while conducting postmortem examination over the dead body of Gurubari, aged about 50 years, he had noticed contusions over back scapular region of size of 5cm x 4cm over middle of back, abrasion of the size of 6cm x 3cm x 1cm over right parietal region. Besides the haematoma of right parietal region, what we find that defence has not even attempted to question all these finding of P.W.9, which he too has reflected in his reports Exts.8 and 9. The I.O.(P.W.10), who had held inquest over the dead bodies, had also noted such injuries in his inquest reports (Exts.2 and 3). The evidence emerging from the P.W.4, the mother of Nanda Juanga and daughter of deceased-Gurubari is also to the effect that he had noticed all those injuries, when she saw them lying dead. All these above evidence on record, remaining unchallenged, we are left with no option but to hold that Nanda as well as Gurubari met homicidal death. 10. The important witness for the prosecution is P.W.4. She is the wife of the accused; whose son and mother have been Page 7 of 11 JCRLA NO. 80 OF 2011 {{ 8 }} murdered. She has stated that when she returned around 4 pm, the accused quarreled with her by demanding money and when she did not part with the money that she earned by selling sticks used for cleaning tooth, the accused assaulted her. It is her evidence that out of fear and apprehending danger to life, she fled away from the place and at that time, her son Nanda was on her lap and he was snatched away by the accused. It is further stated that the accused then remained in the house with Nanda and throttled him to death. Thus, it being taken that this P.W.4 had not seen the accused throttling her son yet, when it is her evidence that both remained in the house and the death of Nanda had taken place on account of throttling, in the absence of any sort of explanation from the side of the accused as to what happened thereafter in the house which was within his special knowledge of the accused; it is to be held that the prosecution having discharged the burden of proof of fundamental facts, the same stood shifted upon the shoulder of the accused, which has not been elbowed. Therefore, with the evidence of P.W.4, the accused had been rightly held to be the author of the injuries caused on his two years old son leading to his death. This P.W.4 has further stated that when accused remained inside the house with Nanda, despite her knock, he did not open the door and she saw the dead body JCRLA NO. 80 OF 2011 Page 8 of 11 {{ 9 }} of her son on the next day. She has further stated that when her mother-Gurubari complained for such heinous act of the accused, the accused violently threshed big stone upon Gurubari, causing injuries which ultimately led to her death; we find that despite cross-examination of P.W.4 has remained firm in so far the role played and act done by the accused in that night and morning in their house. There is nothing on record to entertain slightest doubt the evidence of P.W.4 as regards her presence at home. Moreover, the evidence of P.W.4 receives corroboration from the evidence of P.W.6, who has stated that all these happenings at the night at home were disclosed by P.W.4 before him. In addition to the above, when it has been stated by P.W.5, the daughter of the accused, who as per the evidence of P.W.4, was there inside the house, that her father (accused) killed younger brother by throttling and grandmother by threshing big stone on her; in the fact situation, even though she is not stating all such detail her evidence must receive due credence. Thus, we are of the considered view that the finding of the Trial Court that the accused is guilty of commission of the murder his soon Nanda Juanga and mother-in-law Gurubari is not liable to be interfered with. On a conspectus of discussion of evidence as hereinabove, we are of the view that the finding of guilt JCRLA NO. 80 OF 2011 Page 9 of 11 {{ 10 }} recorded by the Trial Court against the accused for commission of the offence under section-302 of IPC is well in order and the accused has rightly been convicted thereunder. 11. Having held above, when we turn our attention to the order of sentence, it is found that the Trial Court, while sentencing the accused to undergo imprisonment for life, has suffixed the same by further stipulation i.e. “till his death without any remission”. In placing such two stipulations, the Trial Court appears to have not directed its attention to the settled principles of law. However, it has found the case to be not falling within the “rarest of rare” category for being visited with capital punishment, i.e., death penalty. But then while sentencing the accused to undergo imprisonment for life, the stipulation indicated is that it should be for till death without any remission, the Trial Court has not found that the circumstances of the crime and the circumstances of the criminal being cumulatively viewed, the sentence of life imprisonment is not foreclosed and grossly disproportionate. It has also not been stated by the Trial Court that the sentence of life imprisonment simpliciter would not be proportionate to the gravity of the offence committed and would not meet the end to respond to the crime. JCRLA NO. 80 OF 2011 Page 10 of 11 {{ 11 }} Having noticed the circumstances of the crime and the circumstances of the criminal, we are unable to concur with the stipulations placed by the Trial Court that the imprisonment for life till his death without any remission, as that without being supported by the required reasons which we are unable to cull out, would restrict the statutory and constitutional right of the accused in claiming the remission in the sentence of life imprisonment simpliciter as provided in law and policy holding the field. 12. Accordingly, the Appeal stands disposed of. The judgment of conviction and order of sentence dated 14th November, 2011 passed by the learned Adhoc Additional District and Sessions Fast Track Court, Keonjhar in Sessions Trial Case No.01/199 of 2011 being confirmed; the order of sentence passed thereunder stands modified to the extent as indicated above that Appellant (accused) shall undergo imprisonment for life for the offence under section 302 of the IPC. A.C. Behera, J. I Agree. True Copy Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication P.A. Location: OHC Narayan Date: 22-Sep-2023 13:24:34 JCRLA NO. 80 OF 2011 Sd/- (D. Dash), Judge. Sd/- (A.C. Behera), Judge. Page 11 of 11