MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.32 of 2008 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 December, 2004 passed by the learned 1st Ad hoc Additional Sessions Judge, Sundargarh in Sessions Trial Case No.115/23 of 2004. Sanjhu Dhanwar ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Ms.T. Sinha (Advocate) For Respondent - Mr.P.K. Maharaj, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 10.07.2024 : Date of Judgment : 20.08.2024 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 14th December, 2004 passed by the learned 1st Ad hoc Additional Sessions Judge, Sundargarh in Sessions Trial Case No.115/23 of 2004 arising out of G.R. Case No.576 of 2003 corresponding to Lephripada P.S. Case No.66 of 2003 in the Court JCRLA No.32 of 2008 Page 1 of 12 of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Sundargarh. 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.1,000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for six (6) months for commission of the said offence. 2. PROSECUTION CASE:- The accused is the husband of the deceased and they were having three children. After some years of their marriage, since the accused ill-treated and tortured the deceased, she had to leave the house of the accused. The deceased had left the house of the accused five to six years before the incident, which took place on 16.12.2003. The deceased stayed with one Runa Dhanwar of Village-Gundiadihi as husband and wife. They were earning their livelihood by working as field labourers. Two days before the occurrence, the deceased and Runa were engaged by one Grigory Tigga (P.W.1) to work in his field. On the day of occurrence to the house of P.W.1, it was around 5.30 p.m. at Charakguda near the house of Moti Xalko (P.W.3) and Martha Xalko (P.W.4), the accused started quarrelling with the deceased and he then out of JCRLA No.32 of 2008 Page 2 of 12 anger, inflicted several axe blows on the face and neck of the deceased causing severe bleeding injuries. The deceased fell on the ground and became senseless. The accused fled away carrying the axe. The deceased thereafter, while being shifted to Lephriiada Hospital, met her death on the way. Gregory Tigga (P.W.1) then lodged a written report with the Officer-in-Charge (O.I.C.), Lephiripada P.S. in the night of 17.11.2003 at 1.00 a.m narrating about the incident. On receipt of the above report, the O.I.C (P.W.11) treated
Facts
the same as FIR (Ext.1) and upon registration of the case, took up the investigation. 3. The Investigating Officer (I.O.-P.W.11), in course of the investigation, examined the informant (P.W.1) and recorded his statement under section 161 Cr.P.C. The I.O. (P.W.11), having visited the spot, prepared the spot map (Ext.11). He (P.W.11) held the inquest over the dead body of the deceased and prepared the report to that effect (Ext.2) and sent the dead body of the deceased for post mortem examination by issuing necessary requisition. The I.O. (P.W.11) thereafter seized the wearing apparels of the deceased under seizure list (Ext.12) and seized blood stained earth, sample earth under seizure list (Ext.3). He (P.W.11) thereafter arrested the accused and forwarded him in JCRLA No.32 of 2008 Page 3 of 12 custody to Court. The I.O. (P.W.11) sent the seized incriminating articles for chemical examination through Court. On completion of the investigation, the I.O. (P.W.11) 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., Sundargarh, 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. 5. In the Trial, the prosecution, in support of its case, has examined in total eleven (11) witnesses. Out of them; P.W.1 is the Informant, who had lodged the FIR (Ext.1) and the deceased and Runa were then working under him. P.Ws.2, 3, & 4 are eye witnesses whereas P.Ws.3 & 4 are the inmates of the houses situated near the spot. The two post occurrence witnesses are P.Ws.1 & 9 and they are also the witnesses to the inquest and signatories to the report (Ext.2). P.Ws.5 & 8 are the seizure witnesses whereas P.Ws.7 & 10 are the witnesses, who had accompanied the police when the accused, while in police custody, pursuant to his statement, had led them in giving recovery of the axe. The Doctor, who had conducted the post JCRLA No.32 of 2008 Page 4 of 12 mortem examination over the dead body of the deceased is P.W.6. The I.O. of the case, at the end, has come to the witness box as P.W.11. 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 17. Out of those, the important are, the FIR (Ext.1), the inquest report (Ext.2); the post mortem report (Ext.4); and the spot map (Ext.11). The report of the Chemical Examiner had been admitted in evidence and marked Ext.17 and the seizure list is Ext.12. 7. The accused has taken the plea of complete denial and false implication. It is also stated that the deceased had been murdered by that Runa Dhanwar with whom she was living as husband and wife after deserting the accused. The defence, however, has not tendered any evidence in support of such plea. 8. The Trial Court, upon examination of the evidence and their evaluation, has held that the prosecution has established the charge against the accused beyond reasonable doubt. Accordingly, the accused, being held guilty for commission of the offence under section 302 of the IPC, has been sentenced as afore- stated. JCRLA No.32 of 2008 Page 5 of 12
Legal Reasoning
the same in our view cannot be taken as material contradiction so as to doubt the version of P.W.3. Thus, we find that the evidence of the prosecution witnesses (P.Ws.2, 3 & 4) are quite reliable and trustworthy in coming to a conclusion that the prosecution has established the complicity of this accused in causing such fatal injuries upon the deceased leading to her death. With the evidence, as discussed, even keeping the evidence of the I.O. (P.W.11) as regards the recovery of the axe at the instance of the accused pursuant to his statement while in police custody beyond the realm of consideration in providing support to the prosecution case, we find absolutely no difficulty in concurring with the finding of the Trial Court that the prosecution has established the charge against the accused in intentionally causing the death of the deceased beyond reasonable doubt. JCRLA No.32 of 2008 Page 11 of 12 14. In the wake of aforesaid, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 14th December, 2004 passed by the learned 1st Ad hoc Additional Sessions Judge, Sundargarh in Sessions Trial Case No.115/23 of 2004, are hereby confirmed. Since the Appellant (accused), namely, Sanjhu Dhanwar is on bail, he is directed to surrender before the Trial Court forthwith to serve out the sentence. 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 JCRLA No.32 of 2008 Page 12 of 12
Arguments
9. Ms.T. Sinha, learned counsel for the Appellant (accused) submitted that the evidence of P.Ws.2, 3 & 4 are liable to be rejected as their versions, as laid during trial, are not believable. She submitted that the manner in which the incident is said to have taken place as it emanate from the evidence of P.Ws.2, 3 & 4 cannot be accepted and so also the role said to have been played by this accused therein as those witnesses have stated. She further submitted that all those witnesses are highly interested witnesses and the Trial Court has not critically examined there evidence before accepting the same. She next submitted that the evidence let in by the prosecution witnesses in support of the factum of recovery of the axe at the instance of the accused by leading the police and other witnesses to the place of concealment pursuant to his statement are liable to be rejected. According to her, those witnesses differ on material particulars and nothing is stated as to where the statement was given by the accused, where it was recorded and wherefrom the journey started. In view of all these above, she urged for acquittal of this accused by seeing aside the judgment of conviction and order of sentence, which are impugned in this Appeal. 10. Mr.P.K.Maharaj, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt JCRLA No.32 of 2008 Page 6 of 12 against the accused as has been recorded by the Trial Court, has placed the deposition of P.Ws.2 & 3 before us in great detail. According to him, there is absolutely no material to doubt the version of the above noted witnesses, who have directly implicated this accused in causing fatal injuries on the head of the deceased by giving repeated blows by means of an axe, which finds full corroboration from the evidence of the Doctor (P.W.6), who had conducted the autopsy over the dead body of the deceased and has deposed to have noticed four incised wounds on the head of the deceased, which themselves suggest that those are not the result of the solitary blow but blows being given in quick succession. He also submitted that when the deceased was separately living from the accused and there was no such untoward situation shortly before the incident, there surfaces no such reason to say that these witnesses were even bearing any grudge against the accused so as to develop the tendency of falsely implicating him in the case by screening the real offender. 11. 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.11) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.17. JCRLA No.32 of 2008 Page 7 of 12 12. In order to address the rival submission and judge the sustainability of the finding of the Trial Court as to the complicity of the accused in committing the nature of the deceased, we are now called to call upon to critically examine the prosecution evidence. As already stated, P.W.1 is the Informant and is a co- villager to the accused as well as the deceased. He, having learnt the incident from Titu Kujur, states to have rushed to the spot and saw the deceased in an injured condition. As per his evidence, Taramani Tigga (P.W.2), Sarat Chandra Patel, Khari Xalxo and others were very much present when he arrived there. So, his evidence fortifies the presence of P.W.2 by name and that Taramani (P.W.2) had sent the information to this P.W.1. This P.W.1 has stated to have seen the deceased having injuries on her face and neck. The Doctor, who had conducted the autopsy over the dead body of the deceased, has been examined as P.W.6. He has found six incised wounds on the person of the deceased mainly centering round the neck and head. According to him, the death was on account of shock caused by profuse haemorrhage due to cut injury to large vessel, i.e., carotid artery and jugular vein of both side neck. He has stated the injuries to have been caused by sharp cutting weapon. The I.O. (P.W.11), during inquest, has also noticed such injuries and noted those in the JCRLA No.32 of 2008 Page 8 of 12 inquest report (Ext.2) in his own language. Other witnesses too have stated to have seen the deceased with said injuries. When all these available evidence remaining unimpeached clearly establish the death of deceased to be homicidal, it now stands for examination as to how the prosecution has established the complicity of this accused in causing such injuries upon the deceased. 13. P.W.2 says to have gone to cut paddy in the fields of one Bhupati Katar on that day. It is her evidence that around 4.00 p.m., she had gone to the house of Moti Xalxo (P.W.3) to take tobacco. It is said by her that there runs a footpath near the house of Moti (P.W.3). She states that Moti (P.W.3), this accused and the mother of the accused were very much present in the house of Moti. As per her evidence, the accused left the house of Moti by holding Budia (axe) and then quarreled with the deceased and then the deceased was dissuading him from continuing with the quarrel in saying that she when somehow been living on her own way, the accused should refrain from posing any obstacle in that. P.W.2 then states that at that point of time, the accused dealt Budia (axe) blows on the face near the ear of the deceased, which resulted her fall on the ground. She (P.W.2), having not stopped there, has further gone to say that the accused thereafter dealt JCRLA No.32 of 2008 Page 9 of 12 Budia (axe) blows on her neck. The natural human instinct has been exhibited by this P.W.2 when she states to have immediately raised the cry that the deceased was being killed. Her further evidence is that hearing the alarm, Moti (P.W.3) and Martha came to the spot and saw the incident thereafter. It is stated that the accused chased them and went running towards the jungle. The deceased, according to her evidence, was returning after harvesting and paddy with Runa Dhanwar with whom she was staying. This witness, being cross-examined, we find nothing to have been elicited from her to raise any doubt in mind that she was falsely implicating the accused or even regarding his presence at the spot at the relevant time when the incident had taken place. Moti, being examined as P.W.3, has stated that hearing the shout of P.W.2, she came out of her house and saw the deceased lying in an injured condition on the ground and this accused was then seen running away with an axe. She has reiterated the same during cross-examination. It is stated during cross-examination that no sooner did come out of her house, she saw accused running with the Budia (axe). Martha Xalxo, being examined as P.W.4, has also stated that at the relevant time, she was in her house and hearing from Taramani (P.W.2), when she came out of her house, she saw the accused assaulting the deceased on her face by Budia (axe) and JCRLA No.32 of 2008 Page 10 of 12 then running away towards the jungle. Although it has been shown by the defence that P.W.2 had not stated the exact words used in shouting which she stated during trial point the name of the deceased; that in our considered view is not a vital omission so as to amount to material contradiction. Similarly, it has been shown by the defence that P.W.3 had not stated before the I.O. (P.W.11) during investigation that P.W.3 had uttered the name of the deceased as to have been done to death. Even that being so,