The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.34 of 2013 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 April, 2013 passed by the learned Sessions Judge, Gajapati, in Sessions Case No.50 of 2007 arising out of G.R. Case No.77 of 2007 of the Court of learned J.M.F.C., R. Udayagiri. ---- Manda Raita State of Odisha -versus- …. …. Appellant Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. M.M. Patnaik, D.P. Mohapatra, A.K. Sahoo, P. Varma, Advocates. For Respondent - Mr.S.K. Nayak, Additional Govt. Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K.PANIGRAHI Date of Hearing : 10.02.2023 :: Date of Judgment:14.03.2023 D.Dash, J. The Appellant, by filing this Appeal, from inside the jail, has called in question the judgment of conviction and order of sentence dated 30th April, 2013 passed by the learned Sessions Judge, Gajapati, in
Facts
S.C. Case No.50 of 2007 arising out of G.R Case No. 77 of 2007 of the Court of the learned J.M.F.C., R.Udayagiri. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of IPC (in short, ‘IPC’) as well as Section 25 & 27 of the Arms Act. Accordingly, he has been JCRLA No.34 of 2013 Page 1 of 8 {{ 2 }} sentenced to undergo imprisonment fort life and pay fine of Rs.1000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for 6 (six) months for the offence under section 302 of IPC and to rigorous imprisonment for 3 (three) years with payment of fine of Rs.1000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for 6 (six) months for the offence under section 25 and 27 of the Arms Act, each. 2. Prosecution Case:- On 08.06.2007, the informant namely, Chitrasen Nayak (P.W.3) orally reported the incident before the Inspector-in-Charge (IIC) of R.Udayagiri Police Station. He narrated the incident that on the previous evening, he with his father-in-law Jaga Raita (deceased) and mother-in- law Dukhi Raita (P.W.5), Abhi Karji (P.W.7) and Dau Karji, had gone to village Rammaaguda. It was around 6 p.m. There, they talked with one Basini Dalei for marriage of her daughter Babi Dalei with Sura Raita, the brother-in-law of the informant (son of the deceased). Basini refused to give her daughter in marriage with Sura. So, the deceased remarked that he would find a bride for Sura somewhere else. This remark gave rise to a quarrel between the deceased and accused. Apprehending the situation to aggravate, they decided to leave. At that time, the accused followed them with a gun. He abused the deceased using obscene language and taunted him as to why he had come in search of the bride in the night to the village. Hearing this, the deceased looked back and said that it was not that the brides are only available only in that village, but also in other villages, they would so find. The accused then being enraged fired at the deceased from a short distance from that gun which he was holding. The bullet hit the deceased at his belly and caused profuse bleeding for which the deceased fell on the JCRLA No.34 of 2013 Page 2 of 8 {{ 3 }} ground. The accused then left the spot running by remarking at the deceased that the result was a lesson for coming to the village in the night to find a bride. Since it was night, the informant and others returned to the village leaving Dukhi Raita (P.W.5) with the deceased, who was then lying in a critically injured condition. Next morning, the informant, his brother-in-law and few other villagers went to the spot. The deceased was still alive. But thereafter he died during noon hours when this informant (P.W.3) and others were planning to take him to the hospital. The oral version of (P.W.3) is being reduced into writing. The IIC (P.W.10) immediately treated the same as FIR and having registered the case, took up the investigation. 3. In course of investigation, he examined the informant and other witnesses, visited the spot, seized the incriminating articles and sent those for chemical examination through Court. He also held the inquest over the dead body of the deceased and prepared the report (Ext.2). He thereafter had sent the dead body of the deceased for Post Mortem Examination and obtained the report. The seized gun was sent to the ballistic export through Court for his opinion. The first Investigating Officer (P.W.10), having been transferred, investigation was done by the next incumbent to the office i.e. P.W.11, who on completion of investigation submitted the charge sheet. 4. In the trial, prosecution in total has examined eight witnesses. As already stated P.W.3 is the informant, P.W.5 is the wife of the deceased and P.W.7 was the person who was coming with them at the relevant time. P.W.3, who is the son-in-law of the deceased, is the informant. The Doctor who had conducted autopsy over the dead body of the deceased has been examined as P.W.9. The two Investigating Officers JCRLA No.34 of 2013 Page 3 of 8 {{ 4 }} are P.W.10 and P.W.11. The Doctor who had rendered opinion as sought for during investigation has come to the witness box as P.W.9. 5. Besides tendering the evidence by examination of all the witnesses the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to 18. The wearing apparels of the deceased, the gun seized in course of investigation having been produced before the Trial Court; and those have been marked as Material Objects (M.O.I to IV). Out of those documents, the important are FIR (Ext.3), the Injury Report (Ext.1), Post Mortem Report (Ext.8), sanction order of the District Magistrate as required for launching the prosecution under the Arms Act (Ext.9), Chemical Examination Report (Ext.18 and Ext.18/1) etc. 6. The Trial Court, keeping in view the evidence of the Doctor (P.W.9), who had conducted autopsy over the dead body of the deceased as also on going through the report Ext.8 which have not at all been challenged from the side of the defence in any manner, has held the death of Jaga Raita to be homicidal. In fact, before there is also no challenge to the nature of death of Jaga. Evidence of P.W.9 is to the effect that during post mortem examination, he had noted punctured lacerated wound over right side upper abdomen and one punctured laceration circular over right side lower lacerated back. On dissection of first injury, he had found some black powder material in the track of the wound. The wound was communicating with the second injury. It is his evidence that the lower broader right lobe of liver was lacerated so also the upper half of right kidney. His evidence is that the death was the result of hemorrhage arising out of the injuries which have been caused by a firearm projectile. This P.W.9 has clearly stated the nature of death to be JCRLA No.34 of 2013 Page 4 of 8 {{ 5 }} homicidal. Besides the above, We find the evidence of the wife of the deceased (P.W.5), the informant (P.W.3) and P.W.7, the other person who had accompanying them, who had stated about the firing and the injuries being caused upon Jaga thereby. The I.O (P.W.10) while holding the inquest has noted all those fire arm injuries over the body of the deceased, which have been noted in the inquest report Ext.1. In view of all these, We are wholly in agreement with the finding of the trial court that the death of Jaga was homicidal in nature. 7.
Legal Reasoning
read with the entire deposition of P.W.3, We find that the defence save JCRLA No.34 of 2013 Page 6 of 8 {{ 7 }} and except putting few questions concerning the lodging of the FIR has surprisingly thrown the suggestion that said P.W.3 had killed the deceased, because deceased refused to get his son married with the sister of said P.W.3. But on the score, absolutely no other supporting evidence has come in from the side of defence, nor any indications are coming out or hint is emerging from the evidence of the prosecution witnesses. There is no any contradiction in the evidence of P.W.3 and his evidence is wholly consistent with the version in the FIR, Ext.3 which provide corroboration. 11. P.W.4 is the son of the deceased, who had signed on the report Ext.3. P.W.5 has narrated the incident in the same way as that of P.W.3, right from the beginning till the end. There is absolutely no discrepancy between the evidence of P.W.3 and 5. We have also not noticed any suspicious feature to have surfaced in their evidence. P.W.7 has also stated in the same line. In view of such clear evidence of these witnesses, when there cannot be the presumption that being relations, they are not telling the truth and falsely implicating the accused for which also no such reason is placed or shown by the defence, this Court being not able to throw any doubt on their testimony is led to accept their version in toto. We thus find that the prosecution has proved its case beyond reasonable doubt through the evidence of P.W.3, 5 and 7 which also finds corroboration from the medical evidence and that of the report of the Ballistic Expert (Ext.18) as well as the evidence of the I.O (P.W.10) with regard to the seized gun, its discovery etc. whose nexus has been further shown through the Chemical Examination Report, Ext.18. 12. On a conspectus of evidence, We are of the considered view that prosecution has established the charges against the accused for JCRLA No.34 of 2013 Page 7 of 8 {{ 8 }} committing the offence under section 302 and section 25 and 27 of the Arms Act, by leading clear, cogent and acceptable evidence as already discussed beyond reasonable doubt. This appeal therefore, does not merit the acceptance. 13. The judgment of conviction and order of sentence which have been impugned in this Appeal are not liable to be interfered with. 14. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 30.04.2013 passed by the learned Sessions Judge Gajapati, Paralakhemundi in SC Case No.50 of 2007 are confirmed. (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. Dr.S.K.Panigrahi, J. I Agree. Gitanjali JCRLA No.34 of 2013 Page 8 of 8
Arguments
Learned Counsel for the Appellant submitted that the Prosecution when relies upon the evidence of P.W.3, 5 and 7 in support of the charge against the accused that it is he who had intentionally caused the death of Jaga by firing from his gun, the evidence of those witnesses being read as a whole, they should not be taken to be wholly unreliable witnesses. He submitted that the evidence of all these three witnesses run differently and in great variation with one another, particularly as regards the happening of the incident and the role of this accused. He further submitted that with such evidence on record, the Trial Court has committed grave error in holding the accused to be guilty for committing the murder of Jaga. He also submitted that all these witnesses being close relatives of the deceased, the Trial Court ought to have taken their evidence as those of highly interested witnesses and therefore, with the variance in their evidence, more particularly with regard to the role attributed to the accused, the trial Court ought not to have relied upon their evidence to convict the accused. 8. Learned Counsel for the State submitted that the evidence of P.W.3, 5 and 7 have rightly been accepted by the Trial Court as clear, cogent and trust worthy and therefore, after detail and critical examination of these evidence from every possible angle under the JCRLA No.34 of 2013 Page 5 of 8 {{ 6 }} circumstances which have emerged in evidence has rightly concluded that the prosecution has proved its case beyond reasonable doubt. 9. Keeping in view the submissions made, We have carefully read the impugned judgment of conviction. We have also travelled through the depositions of the witnesses (P.W.1 to 8) and have perused the documents admitted in evidence Ext.1 to 18. 10. True it is that P.W. 3 and 5 are none other than the wife and son- in-law of the deceased. They with P.W.7 are the eye witnesses to the occurrence. It is the evidence of P.W.3 that on 06.06.2007, he with P.W.5 & 7 had gone with the deceased to village Ramaguda for finding a bride for the son of the deceased. She has further stated that reaching the village, they had gone to the house of Naru Dalei and given the proposal for marriage of the son of the deceased with the daughter of Naru, when the widow of Naru refused. It has been further stated that then there came the remark from the side of the deceased which gave rise to a quarrel and for that, they were returning to their village when on the way the incident took place. He has further stated that when they were returning to the village on the way, the accused fired at the deceased from his gun and as a result, the bullet hit the deceased on his belly. It is his evidence that accused ran away thereafter. He has stated that he had returned the village in the night leaving the deceased at the spot with P.W.5 and on the next morning, they went to the spot and just when were planning to shift the deceased to the hospital, he expired. This P.W.3 has lodged the FIR at the police station which has resulted the registration of the case and commencement of the investigation. The FIR has been proved by him and admitted in evidence and marked as Ext.3. Having carefully