The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.380 of 2012 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 27.04.2012 passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.20 of 2011. ---- Samai Tamundia …. Appellant -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr.R. N. Mishra, (Advocate) For Respondent - Mrs. S. Pattnaik, Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE G. SATAPATHY Date of Hearing : 19.01.2024 :: Date of Judgment: 08.02.2024 D.Dash,J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and the order of sentence dated 27.04.2012, passed by the learned Additional Sessions Judge, CRLA No.380 of 2012 {{ 2 }} Rairangpur in S.T. Case No.20 of 2011, arising out of G.R. Case No.474 of 2010, corresponding to Rairangpur Rural P.S. Case No.60 of 2010, of the Court of learned Sub Divisional Judicial Magistrate (SDJM), Rairangpur. The Appellant (accused) has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, ‘IPC’) and he has been sentenced to undergo imprisonment for life and pay fine of Rs.5000/- in default to undergo rigorous imprisonment for one (1) year. 2. Prosecution case is that Laxman Tamundia, who happens to be the uncle of Pandu Singh (Informant-P.W.1) was in visiting terms to the house of the accused, namely, Samai Tamundia. On 21.12.2010 around 4 p.m. Laxman had gone to the house of the accused. It is stated that when Laxman abused the wife of the accused, the accused then assaulted him with an axe and caused his death. On the next day morning around 8 a.m, Pandu Singh (Informant- P.W.1) got the news of murder of his uncle, Laxman.So, he (Informant- P.W.1) along with his another uncle (P.W.3), Nephew (P.W.7), P.W.2, the brother-in-law of P.W.1 and 2 other relations went to the village of the accused. They found the dead body of Laxman lying in a pool of blood in the front courtyard of the house of the accused. The accused was near the CRLA No.380 of 2012 {{ 3 }} spot. It is stated that the accused confessed to have killed the accused out of anger by means of Budia when Laxman asked food to his wife and abused her saying “SALI”. The accused then carrying the Budia, left for the Police Station. Pandu Singh (Informant-P.W.1) lodged a written report on 22.12.2010 around 11 am with the Officer-in-Charge (OIC) of Rairangpur Rural Police Station. Having received such written report, treated the same as FIR and upon registration of the case, took up investigation. 3. In course of investigation, the Investigating Officer (I.O- P.W.13) examined the informant, visited the spot and prepared the spot map vide Ext.1. At 11.10 a.m, the IIC received information from the ASI that accused Samai Tamundia surrendered at the P.S. with the weapon an Axe stained with blood and confessed his guilt. Then the I.O (P.W.13) examined the accused and recorded his statement and seized the weapon of offence i.e. axe (budia) at the spot and prepared the seizure list vide Ext.3. He then conducted inquest over the dead body of the deceased and prepared the report to that effect i.e. Ext.2. At the time of inquest, he recovered two live ammunitions from the pant pocket of the deceased and seized the same under seizure list vide Ext.4. He then sent the dead body for post mortem examination by issuing necessary requisition. He collected the CRLA No.380 of 2012 {{ 4 }} sample earth from the spot and prepared seizure list vide Ext.5. The I.O. (P.W.13) seized the wearing apparels stained with blood of the accused vide Ext.6. He arrested the accused and sent him for medical examination. He seized the wearing apparels of the deceased under seizure list vide Ext.7. He also seized the sample blood, nail clippings, leg wash, hand wash of the accused and prepared the report to that effect vide Ext.8. The accused was forwarded in custody to Court. The seized incriminating articles were sent for chemical examination to SFSL, Balasore through Court. On completion of the investigation, the I.O (P.W.13) submitted the Final Form placing the accused to face the Trial for commission of offence under section 302 of the IPC. 4. Learned SDJM, Rairangpur receiving the Final Form as above, took cognizance of the offence and after observing the formalities committed the case to the Court of Sessions. That is how the Trial commenced by framing charge against the said offence against the accused. 5. In the Trial, the prosecution in total has examined fourteen (14) witnesses. Out of whom, P.W.1 is the informant and had lodged the FIR (Ext.1) whereas P.W.2 is the uncle. P.W.3 is the cousin brother of the deceased. P.W.4 & P.W.5 are the co-villagers CRLA No.380 of 2012 {{ 5 }} of the accused before whom the accused is said to have confessed to have committed the crime. P.W.6, P.W.7 & P.W.8 are the post occurrence witnesses and witnesses to the seizure. P.W.9 is the constable, in whose presence at the police station, the accused surrendered with the axe. P.W.10 is the witness to the seizure. The Doctor, who had conducted autopsy over the dead body of the deceased, has been examined as P.W.12 and the I.O is P.W.13. 6. The prosecution besides leading the evidence by examining above the witnesses has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.12/1. Out of those, the important are the FIR, Ext.1, inquest report, Ext.2, Post Mortem Report, Ext.10, spot map, Ext.11. 7. The accused has not led any evidence in support of his plea of denial and false implication. 8. Learned counsel for the Appellant (accused) without disputing the nature of death of the Laxman, as has been proved through the Doctor, conducting Post Mortem over the dead body i.e. P.W.12 deriving support from the other evidence of the witnesses such as P.W.1, P.W.2 and P.W.7, who had seen the deceased with injuries submitted that the evidence let in by the prosecution upon proper scrutiny ought not to be held to be sufficient to conclude that the prosecution has established the CRLA No.380 of 2012 {{ 6 }} charge against the accused beyond reasonable doubt. He submitted that there is no eye witness to the occurrence and the entire case of the prosecution is based upon the so called extra judicial confession of the accused made before the witnesses, who had arrived after receiving the news of death of Laxman. He further submitted that the evidence of the prosecution witnesses that the accused had disclosed before them to have committed the murder of Laxman is not believable. He, therefore, urged that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside. 9. Learned counsel for the State-Respondent submitted that although there is no eye witness to the occurrence, yet when several prosecution witnesses have stated about the confession of the accused being made before them when he was also seen by them at the spot near the dead body, the Trial Court did commit no mistake in convicting the accused for the offence under section 302 of the IPC holding him to be the author of such fatal injuries. 10. Keeping in view the submissions made, we have carefully read the judgment of conviction impugned in this Appeal. We have also gone through the depositions of all the witnesses P.W.1 to P.W.14. We have also perused the documents which have been admitted in evidence and marked Ext.1 to Ext.12/1. CRLA No.380 of 2012 {{ 7 }} 11. The Informant is P.W.1 and he has proved the FIR which has been admitted in evidence and marked Ext.1. The FIR reveals that in the morning P.W.1 got the information that his uncle Laxman had been killed by the accused the previous day around 4 p.m. by means of an axe. It is the further narration in the FIR that accused, who was then near his house told him to have committed the murder of Laxman. One unusual feature stands that when it is not stated by P.W.1 that the accused was close to the dead body but he states that he was then near his house. If that is so, the accused suo moto coming forward to confess the crime committed by him somewhat appears to be absurd. The brother-in-law of P.W.1, who admittedly had gone with P.W.1 to the house of the accused, is not supporting the prosecution version and then P.W.3 states that when they asked the accused about the occurrence, the accused confessed to have killed the deceased. But P.W.1 does not state that the accused at any time was asked as to how the death of Laxman took place. P.W.4 states that he had gone to the market on that occurrence day and heard about the incident after he returned to the village around 4 p.m. When he states that accused confessed before him that he killed Laxman, it is not stated as to exactly at which place the accused confessed and in fact where and how this P.W.4 met the accused. Admittedly, this P.W.4 does not state that when he went to the CRLA No.380 of 2012 {{ 8 }} spot he had seen the accused there. P.W.5 does not support the prosecution case as to the extra judicial confession. P.W.7 although does not state that when they arrived near the dead body where the accused was or wherefrom he came, he simply states that the accused confessed before them to have killed the deceased. He is also not saying that whether the accused was ever asked as to how it all happened to Laxman. It is as if the accused was waiting for the arrival of this witness P.W.7 and other witnesses so as to make his confession which raised genuine doubt in the mind. P.W.8 does not state anything in support of confession although he was present at the time of the inquest. P.W.13, I.O when states to have received the written report Ext.1 at the spot and had sent the said report to the P.S. for registration and investigation, the Informant- P.W.1 does not state to have handed over the written report (Ext.1) to P.W.13 (I.O). Although P.W.13 says that around 10-11 a.m, the accused surrendered at the P.S. with the axe stained with blood, no other witnesses are saying to have followed the accused or accompanied the accused. In view of above evidence, the accused appearing at the P.S. with an axe which may villagers usually carry while going somewhere, is not such an incriminating circumstance. 12. Thus on a conspectus of discussion of evidence as hereinabove, we find that the evidence as to the extra judicial CRLA No.380 of 2012 {{ 9 }} confession of the accused as to have committed the murder of Laxman coming from the lips of the above noted witnesses are not free form doubt and there is also no such corroboration. 13. In the result the Appeal stands Allowed. The judgment of conviction and order of sentence dated 27.04.2012 passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.20 of 2011 are hereby set aside. 14. Since the Appellant namely, Samai Tamundia is on bail, his bail bond shall stands discharged. G. Satapathy, J. I Agree. Gitanjali (D. Dash), Judge. (G. Satapathy), Judge. Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 08-Feb-2024 16:38:46 CRLA No.380 of 2012