The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.69 of 2012 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 14.02.2012 passed by the learned Additional Sessions Judge, Fast Track Court, Bhawanipatna in Crl.Trial No.72/34 of 2011 (Sessions). Badu Naik State of Orissa -versus- …. …. Appellant Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Ms. Nibedita Mohanty, Advocate. For Respondent - Mr.P.K.Mohanty, Additional Standing Counsel CORAM:
Legal Reasoning
MR. JUSTICE D.DASH MR. JUSTICE A.C. BEHERA Date of Hearing :14.09.2023 :: Date of Judgment:03.10.2023 A.C. Behera, J. The Appellant from inside the jail has assailed the judgment of conviction and order of sentence dated 14.02.2012 passed by the learned Additional Sessions Judge (F.T.C.), Bhawanipatna in C.T. No.72/34 of 2011 (Sessions) arising out of G.R. Case No.05 of 2011 in connection with Thuamul Rampur P.S. Case No.01 of 2011. The appellant has been convicted for commission of offence under Section 302 of the Indian Penal Code (in short ‘I.P.C.’) and accordingly Page 1 of 7 JCRLA No.69 of 2012 {{ 2 }} he has been sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- in default to undergo R.I. for one year. Prosecution case On 02.01.2011 at about 7.00 P.M., when Raukmani Naik(deceased) went to the house of accused, who is her immediate neighbour with her minor daughter Pinky Naik in order to ask the accused to return her money, which was taken by the accused from her (deceased) earlier, at that time, in front of the house of the accused, the accused suddenly assaulted the deceased by a Tangia by giving three blows successively on her neck, face and shoulder. As a result of such blows of the accused by Tangia, the deceased fell down on the ground sustaining injuries on her face, neck and shoulder and met instantaneous death. After the death of the deceased, the accused fled away from there throwing the weapon, i.e., Tangia. So, the daughter of the deceased, i.e., Pinky cried there in a loud voice and informed the matter to her near relatives and neighbours. After hearing about the incident from the daughter of the deceased, her near relatives and some neighbours arrived there and saw the dead body of the deceased lying there at the spot with multiple bleeding injuries on her person. So, one of the brothers of the deceased, i.e., Sanumanu Naik lodged written report vide Ext.1 before the OIC, Thuamula Rampur Police Station. Basing upon such F.I.R. (Ext.1), the OIC, Thuamula Rampur P.S. registered the case and took up the investigation of the case. During investigation, the I.O. (P.W.10) examined the informant and other witnesses, visited the spot, prepared spot map vide Ext.10. He held inquest over the dead body of the deceased and prepared the inquest JCRLA No.69 of 2012 Page 2 of 7 {{ 3 }} report vide Ext.2, sent the dead body of the deceased for Post-mortem examination through dead body challan vide Ext.11. Accordingly, Post- mortem examination over the dead body of the deceased was conducted by the doctor attached to Thuamula Rampur C.H.C. and the P.M. report vide Ext.9 was prepared. The I.O. (P.W.10) collected the bloodstained earth and sample earth from the spot and seized the same under seizure list vide Ext.5, seized the weapon of offence, i.e., Tangia vide M.O.-I from near the spot vide seizure list, Ext.4. The wearing apparels of the deceased along with other incriminating articles were also seized. Then, the I.O. (P.W.10) arrested the accused and issued requisition for collection of his blood sample and nail clippings. Accordingly, blood sample and nail clippings of the accused was collected by the doctor which (I.O.) seized and then he forwarded the accused to the court. In course of investigation, the I.O. (P.W.10.) sent the seized articles including the seized weapon, i.e., Tangia (M.O.I) for chemical examination and after completing the investigation submitted Final Form placing the accused to face the trial for commission of offence under Section 302 of the I.P.C., 1860 4. Accordingly, after commitment of the case in the court of Sessions from the court of learned S.D.J.M., Bhawaniptna and on transfer of that case to the court of leaned Additional Sessions Judge(F.T.C.), Bhawanipatna, the accused being charged under Section 302 of the I.P.C., 1860 faced the trial. 5. The plea of the defence was one of complete denial and false implication of the accused. JCRLA No.69 of 2012 Page 3 of 7 {{ 4 }} In order to substantiate the aforesaid charge, the prosecution has altogether examined ten (10) witnesses. Several documents such as Ext.1 to 14 have also been proved and those include, the F.I.R. and Post- mortem examination report vide Exts.1 and 9 respectively. 6. Out of the 10 witnesses of the prosecution, P.W.4 is the minor daughter of the deceased, who is the eye witness to the incident. P.W.1 is the informant, who is the brother of the deceased. P.Ws.2, 3 and 5 are the co-villagers of the accused and the deceased, who had arrived at the spot just after the incident. P.Ws.6, 7 and 8 are witnesses to the seizures of incriminating articles. P.W.9 is the doctor, who had conducted autopsy over the dead body of the deceased and had prepared the Post- mortem examination report vide Ext.9. P.W.10 is the Investigating Officer, who had submitted final form on completion of the investigation. Upon examination of the evidence available on the record, the trial court by placing reliance upon the solitary testimony of P.W.4 corroborated by the evidence of P.Ws.2, 3 and 5 after disbelieving the plea of the defence has found the accused guilty for the offence under Section 302 of the I.P.C., 1860 and sentenced him as afore-stated. 7. Learned counsel for the appellant (accused) inviting our attention to the depositions of P.Ws.4, 2 and 5 submitted that, as P.W.4 was minor and a child witness being aged about 10 years at the time of her deposition in the court, her evidence ought not to have been held as reliable to base conviction, because possibility of false implication of the accused on being tutored cannot be ruled out. He also contended that, when other witnesses were not present at the spot at the time of incident, but, only they have heard about the incident from P.W.4, then JCRLA No.69 of 2012 Page 4 of 7 {{ 5 }} the evidence of those witnesses being hearsay in nature are not admissible under law. He thus urged that the trial court should not have convicted the accused for the offence under Section 302 of the I.P.C., 1860. 8. On the contrary, the learned Additional Standing Counsel argued in support of the impugned judgment of conviction contending that, the same is well in order in view of the un-assailed testimonies of P.W.4 (eye witness) being corroborated by the evidence of P.Ws.2, 3 and 5 coupled with the evidence of the doctor (P.W.9) basing upon the P.M. report vide Ext.9. According to him, it having been proved that the accused had assaulted the deceased by a dangerous weapon, i.e., Tangia (M.O.-I) by giving three successive blows on the vital parts of her body, for no other reason, but only with his intention and knowledge of killing her then and there at the spot instantaneously, the conviction under Section 302 of the I.P.C. has to stand. 9. It appears from the evidence of the doctor (P.W.9) as also the Post-mortem examination report vide Ext.9 prepared by him that, the cause of death of the deceased was due to respiratory failure, due to the injury to trachea and the deceased had sustained three ante mortem injuries, i.e., deep cut injury on her front side right shoulder, deep cut injury over upper part of right neck just below the mandible which had cut the tracheal rings and deep cut injury just below the above second injury. The cause of death of the deceased was due to respiratory failure due to injury to trachea. The above evidence of the doctor (P.W.9) regarding the cause of death of the deceased being result of the injuries on her right side shoulder and neck through sharp cutting weapon has not been assailed in Page 5 of 7 JCRLA No.69 of 2012 {{ 6 }} any manner during cross-examination. In view of that the findings and observations made by the learned trial court below in the impugned judgment on the homicidal nature of death of the deceased receive affirmation. 10. The minor daughter of the deceased, i.e., P.W.4, who was present at the spot at the time of the incident and who is the eye witness to the incident has deposed in her examination-in-chief by stating that the accused dealt three blows by means of a Tangia on her mother, two given on the right side neck and one blow was given on her right shoulder and as a result of such assaults of the accused, her mother died at the spot; while she cried, her aunt (Sambari Naik) and other villagers came to the spot. The above evidence of P.W.4 (daughter of the deceased) regarding her witnessing the incident remaining present at the spot has not been assailed in any manner during cross-examination. Even though she (P.W.4) was cross-examined at length to discredit her above testimonies in implicating/connecting the accused with the injuries and the death of the deceased, it appears that she (P.W.4) has successfully withstood the same in reiterating the same thing, which she had stated in her examination-in-chief. P.Ws.2, 3 and 5 have corroborated to the above evidence of P.W.4 by stating that, they (P.Ws.2, 3 and 5) had arrived at the spot after hearing the cry of P.W.4 and found the dead body of the deceased lying there with multiple injuries on her person and they heard about the manner of assaults on the deceased by the accused from P.W.4. Keeping in view, the aforediscussed evidence, P.W.4 corroborated through evidence of P.W.2, 3 and 5 coupled with the Page 6 of 7 JCRLA No.69 of 2012 {{ 7 }} evidence of the doctor (P.W.9) and I.O.(P.W.10) including the P.M. report vide Ext.9; we are of the considered view that the accused is the author of the injuries caused upon the deceased leading to her instantaneous death. 10. On the conspectus of analysis of the evidence hereinabove, we thus find that the prosecution has proved its case against the appellant (accused) beyond reasonable doubt for having committed the murder of Rukmani Naik (deceased) and as such, the judgment of conviction and order of sentence as returned by the leaned trial court, are not liable to be interfered with.
Decision
In the result, the appeal is dismissed. The judgment of conviction and order of sentenced dated 14.02.2012 passed by the learned Additional Sessions Judge (F.T.C.), Bhawanipatna, Kalahandi in Sessions case vide C.T. No.72/34 of 2011 (Sessions) are hereby confirmed. Mr. D. Dash, J. I Agree. (A.C. Behera), Judge. (D.Dash), Judge. Orissa High Court, Cuttack The 3rd of October, 2023/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 13-Oct-2023 18:53:29 JCRLA No.69 of 2012 Page 7 of 7