The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.36 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 6th June, 2013 passed by the learned Sessions Judge, Bhadrak in S.T. Case No.103 of 2011. Amulya Behera ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.S.Swain (Advocate) For Respondent - Mrs.S. Pattanaik, Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 31.10.2023 : Date of Judgment :13.11.2023 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 6th June, 2013 passed by the learned Sessions Judge, Bhadrak in S.T. Case No.103 of 2011 arising out of C.T. Case No.531 of 2011 corresponding to Bonth P.S. Case No.34 of JCRLA No.36 of 2013 Page 1 of 12 {{ 2 }} 2011 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Bhadrak. 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 two (2) months for commission of the said offence. 2. PROSECUTION CASE:- Sometime in the mid of March, 2011, the accused was staying in the house of Kasinath Nayak of Village-Gavigadia. On 06.04.2011 around 8.30 p.m., the accused call his wife-Suma Behera to go to the field to attend the called of nature. After some time, cry being heard; some villagers went towards the field. The accused then was found by those villagers to be returning from the nearby field. The villagers saw the wife of the accused lying in a bleeding condition in the filed and she was by then dead. The villagers when asked the accused about the death of his wife, he confessed to have done her to death by suspecting her character. The Grama Rakhi of the village, namely, Ramakanta Jena (P.W.1) then lodged the written report with the Inspector-in- Charge (IIC-P.W.16) of Bonth Police Station (P.S.). JCRLA No.36 of 2013 Page 2 of 12 {{ 3 }} The IIC (P.W.16), receiving the written report from P.W.1,
Legal Reasoning
treated the same as FIR (Ext.1) and on registering the case, took up the investigation. 3. The Investigating Officer (I.O.-P.W.16), in course of the investigation, examined the informant (P.W.1). The I.O. (P.W.16), having visited the spot, prepared the spot map (Ext.13). He too held inquest over the dead body in presence of the witness and prepared the report (Ext.2). She collected the blood stained earth and sample earth and seized the same under seizure list (Ext.3). The I.O. (P.W.16) sent the dead body of Suma for post mortem examination by issuing necessary requisition. There she (P.W.16) apprehended the accused and it is stated that the accused, while in police custody, gave the statement to have concealed the weapon and stated that if he would be taken to the place, he would give recovery of the same. Pursuant to the statement, the accused is said to have led the police and other witnesses in giving recovery of the weapon, i.e. the crow bar (M.O.II). The seized incriminating articles were sent for chemical examination through Court. On completion of investigation, the I.O. (P.W.16) submitted the Final Form placing this accused to face the Trial for commission of the offence under section 302 of the IPC. JCRLA No.36 of 2013 Page 3 of 12 {{ 4 }} 4. Learned S.D.J.M., Bhadrak, 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 offences against the accused. 5. The prosecution, in support of its case, has examined in total sixteen (16) witnesses during Trial. Out of them, P.W.1 is the informant. P.Ws.2, 3, 4 & 6 are the villagers before whom the accused is said to have confessed his guilt. P.W.7 is the daughter of the informant. P.Ws.5, 9, 10, 13, 14 & 15 are the witnesses to the seizure. P.W.11 is the Doctor, who had conducted the post mortem examination over the dead body of the deceased whereas, the I.O. at the end, has come to the witness box as P.W.16. 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.6), spot map (Ext.13) and the statement of accused (Ext.12/1). The chemical examination report had been admitted in evidence and marked Ext.17. JCRLA No.36 of 2013 Page 4 of 12 {{ 5 }} 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.S.Swain, learned counsel for the Appellant (accused), without disputing the finding of the Trial Court that Suma, the wife of the accused, met a homicidal death, submitted that there being no direct evidence to connect this accused as the author of the injuries leading to the death of Suma, the Trial Court, merely basing upon the evidence of P.Ws.2, 3 & 4 as to the confession of the accused said to have been made before them, has gone wrong in holding the prosecution to have established the charge against the accused beyond reasonable doubt. He further submitted that the evidence of all these three witnesses (P.Ws.2, 3 & 4) are not credible for being accepted to conclude that it was the accused, who had confessed before them to have done his wife to death. He further submitted that the evidence as to the recovery of crow bar at the instance of the accused from the place known to him as has emerged in the evidence of P.W.16 is not believable. He, therefore, submitted that the conviction of the accused recorded by the Trial Court for commission of the offence under section 302 of the IPC cannot be sustained. JCRLA No.36 of 2013 Page 5 of 12 {{ 6 }} 9. Mrs.S.Pattanaik, learned Additional Government Advocate for the Respondent-State submitted that on the face of the evidence of P.Ws.2, 3, & 4, who are independent witnesses and have no axe to grind against the accused that the accused immediately on their arrival after hearing the cry, had confessed before them to have killed his wife is wholly believable. He submitted that the evidence of P.Ws.2, 3 & 4 are quite natural when they have deposed in one vein without any variance. He further submitted that the said evidence, coming from the lips of P.Ws.2, 3 & 4, coupled with the evidence of P.W.16 as to the recovery of the crow bar, at the instance of the accused by leading the police and other witnesses to the place shown by him, is sufficient to record a conviction against the accused. 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.16) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.17. 11. As per the evidence of the Doctor (P.W.11), who had conducted the post mortem examination over the dead body of the deceased, there were cut wounds on the scalp, lateral aspect of left eyebrow, right cheek below the right lower lid and on the JCRLA No.36 of 2013 Page 6 of 12 {{ 7 }} left cheek near the left nostrils of the deceased. He has stated that the said injuries might have been caused by sharp cutting object. It is his further evidence that the death was on account of shock and haemorrhage from subdural and intra cerebral region. He has further deposed that by using the seized crow bar, such injuries noticed by him over the dead body of Suma are possible. The evidence of the Doctor (P.W.11) when taken with the evidence of P.Ws.1, 2, 3 & 4, who have deposed to have seen the deceased lying dead with injuries as also the evidence of the I.O. (P.W.16), who has conducted the inquest over the dead body of Suma and noted the injuries in the inquest report (Ext.2), we are left with no option but to concur with the finding of the Trial Court that the death of Suma was homicidal in nature. 12. Firstly, coming to the evidence as to the confession of the accused, P.W.1 has said that when around 9.00 p.m., when he was returning to the village, he found the villagers searching in the field focusing torch and the accused disclosed that three persons lifted his wife. He has stated that the accused confessed before him that he had murdered his wife as he was suspecting her character. This P.W.1 does not state that when the accused confessed before him, it was to the hearing of anyone else. He has also not stated that exactly at which location, the accused confessed before him to have murdered his wife. He is none other JCRLA No.36 of 2013 Page 7 of 12 {{ 8 }} than the Grama Rakhi of the Village and has lodged the FIR (Ext.1). The narrations in the FIR (Ext.1) stand to the effect that when the accused was asked by the sahi people after the deceased was brought to the verandah of Laxmidhar, the accused, after making much show, stated before him in presence of the sahi people to have killed his wife. But, his evidence runs completely different as to the place where the so-called confession was made by the accused and also the confession being made in presence of the villagers as well as the circumstances under which it was made. P.W.2 has stated that hearing the shout, when he went to the house of Laxmidhar, he saw the dead body lying in the verandah of Laxmidhar and accused then confessed that he had murdered his wife. It being stated by P.W.2 that Ramakanta (P.W.1) was present when the confession was made by the accused, P.W.1, however, does not state that at that time, when the accused made the confession, P.W.2 was present. When P.W.2 states that the accused confessed before him to have murdered his wife, he is silent as to whether it was on being asked or the accused straightway came and confessed before him. The most unnatural part of his evidence is that he admits to have talked with the accused directly that too in that gathering. JCRLA No.36 of 2013 Page 8 of 12 {{ 9 }} The evidence of P.W.3 is to the effect that on asking, the accused confessed that he had killed his wife suspecting her chastity. But, he does not stated as to whether it was he, who asked or somebody-else. Moreover, P.W.2 does not state that the accused confessed on being asked. P.W.4 when states that in the night, hearing some shout he had gone to the field along with others and found Suma (deceased) lying dead with bleeding injury and they carried Suma (deceased) to the veranda of Laxmidhar, he does not state that the accused was then present with them or near the field nor that the accused was then in his house. It is his further evidence that about one thousand persons had gathered at the spot. He interestingly states that P.W.1, having asked the accused as to who killed Suma, the accused confessed to have killed Suma, which is not the evidence of P.W.1. P.W.6 then, however, states that P.W.1 and he when asked the accused about the cause of death of Suma, the accused confessed to have murdered Suma. He is completely giving a different version as regards the confession being made by the accused. With the above evidence on record, we find the evidence of P.W.7, who is none other than the thirteen years old daughter of the accused and the deceased. She has stated that he villagers took the accused to the house of Sarpanch and then threatened JCRLA No.36 of 2013 Page 9 of 12 {{ 10 }} him and had assaulted him. It is also stated by her that P.W.1, the Grama Rakhi had also threatened her father. She does not state that her father (accused) had accompanied her mother when she had been to attend the call of nature. It is also not stated by her that when her mother (deceased) went to attend the call of nature, the accused was present in the house. Her evidence since is assertive that when her father (accused) told to have not murdered her mother, the villagers compelled him to confess to be the perpetrator of the crime. At this juncture, it is seen that the sister of the deceased (P.W.8) has not supported the prosecution case and so also the nephew of the accused. In view of the aforesaid discussion of evidence, we are not in a position to accept that the prosecution has proved that the accused had voluntarily confessed before P.Ws.1, 2, 3 & 4 to have committed the murder of his wife. The Trial Court, in our considered view, has held the confession of the accused to have been proved without proper appreciation of the evidence on record while further not examining as to whether such confession even if made was voluntary or not. 13. Examining to the evidence as to the recovery of the crow bar at the instance of the accused when he was in custody of the police, pursuant to his statement, we find that the witness in JCRLA No.36 of 2013 Page 10 of 12 {{ 11 }} support of such facts, i.e., P.W.15 has not stated anything about those facts. The evidence of the I.O. (P.W.16) is to the effect that she arrested the accused on 07.04.2011. It is not stated by her as to at what time, the accused was arrested and from where. When she states that the accused confessed to have assaulted his wife by crow bar, that part of the evidence of the I.O. (P.W.16) is not permissible in view of the bar contained under section 25 of the Evidence Act. She states that the accused, while in police custody, he told to have kept the crow bar under the heap of wood in the backside of his brother’s house and then he led her (P.W.16) to the place where he had concealed the crow bar and brought out the same, which was seized under seizure list (Ext.11). It is not stated by her that during then, any other independent witnesses had been associated in the process. She also does not state as to at which place, the accused gave his statement and where it was so recorded vide Ext.12. Her evidence appears to be cryptic. For all these aforesaid, according to us, the evidence of P.W.16 does not pass through the test for being admissible for the limited purpose as provided under section 27 of the Evidence Act. Thus, the prosecution evidence is found to be unacceptable that it was the accused, who had led the I.O. (P.W.16) and others in giving recovery of the crow bar from the place known to him. JCRLA No.36 of 2013 Page 11 of 12 {{ 12 }} Therefore, when the confession of the accused projected by the prosecution as well as the factum of recovery of crow bar at the instance of the accused, which is said to be the weapon of offence being sufficient to cause the injuries found on the person of the deceased (Suma) have not been established beyond reasonable doubt, the judgment of conviction and order of sentence, which are impugned in this Appeal, in our view, are liable to be set aside. 14. In the result, the Appeal is allowed. The judgment of conviction and order of sentence dated 6th June, 2013 passed by the learned Sessions Judge, Bhadrak in S.T. Case No.103 of 2011 are hereby set aside. Since the accused, namely, Amulya Behera is in custody, he be set at liberty forthwith, if his detention is not required in any other case. G.Satapathy, J. I Agree. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 14-Nov-2023 14:12:36 JCRLA No.36 of 2013 (D. Dash), Judge. (G.Satapathy), Judge. Page 12 of 12