The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.40 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 23rd December, 2011 passed by the learned Sessions Judge, Nabarangpur, in Criminal Trial No.66 of 2009. Butu Muduli ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Chitta Ranjan Sahoo (Advocate) For Respondent - Miss.Samapika Mishra Additional Standing Counsel CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 02.02.2023 : Date of Judgment:10.02.2023 D.Dash,J. The Appellant, by filing this Appeal from inside the Jail, has assailed the judgment of conviction and order of sentence dated 23rd December, 2011 passed by the learned Sessions Judge, Nabarangpur, in Criminal Trial No.66 of 2009 arising out of G.R. Case No.693 of 2008 corresponding to Khatiguda P.S. Case No.52 of 2008 of the Court of the learned Sub-Divisional Judicial Magistrates (S.D.J.M.), Nabarangpur. The Appellant (accused) thereunder has been convicted for committing the offence under section 302/307 of the Indian Penal Code, JCRLA No.40 of 2012 Page 1 of 11 {{ 2 }} 1860 (for short, ‘the IPC’) and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand) for the offence under section 302 IPC and undergo rigorous imprisonment for five (5) years for the offence under section 307 IPC and to pay fine of Rs.3,000/- (Rupees Three Thousand) in default to undergo rigorous imprisonment for six (6) months. 2. Prosecution Case:- On 26.11.2008 early morning, when Dania Muduli (P.W.3) just came out of his house and was proceeding to attend the call of nature, the accused all of a sudden appeared before him and dealt a blow on his shoulder by means of a tangia. Dania Muduli (P.W.3) then fell down sustaining bleeding injury. The accused thereafter went towards the house of Badasanu Jani (deceased). After urinating, when the deceased was entering his house, the accused all of a sudden dealt a blow on his head with that tangia, which he was holding, which resulted his instantaneous fall on the ground lading to his death. The wife of the deceased, seeing the assault on her husband, rushed to see the condition of her husband. The accused then ran away towards the hillock throwing away the tangia in the backyard of one Padma jani. Having crossed the hillock, the accused again went to Village-Baghra and there, he threw some stones. Seeing this activity of the accused, Jagabandhu Mudulin (P.W.4) tried to catch hold of him in order to restrain him from continuing with such act any more. The accused, however, managed to escape by causing some injuries upon P.W.4 by means of a stick. During this period, Mugu Jani (P.W.1), the son of the deceased, hearing about the incident from his sister, namely, Damei Muduli (P.W.6) returned home and he found his father lying dead in front of JCRLA No.40 of 2012 Page 2 of 11 {{ 3 }} their house. Hearing about the incident from his mother (P.W.2) and the death to have been the result of the assault upon his father by the accused; he, with other villagers proceeded towards the hillock to apprehend the accused when the villagers of the nearby Village-Baghra also joined them and passing facing a difficult period, they ultimately restrained the accused. The villagers then assaulted the accused and the accused was confined thereafter. This Mugu Jani (P.W.1) along with the injured, namely, Dania Muduli (P.W.3) went to Kathiguda Police Station and lodged a report being scribed by one Bhagaban Sahu (P.W.10), who had reduced their version into writing. The Assistant Sub-Inspector of Police (ASI- P.W.12), who then was present at the P.S., in the absence of Officer-in- Charge (OIC), registered Kathiguda P.S. Case No.52 of 2008 and took up investigation. He examined P.Ws.1 & 3, who had gone to the P.S.
Legal Reasoning
and had lodged the FIR (Ext.1). He sent the injured (P.W.3) for medical examination by issuing requisition and then intimated the matter to the Circle Inspector of Police at Papadahandi over telephone. On the next date, i.e., on 27.11.2008, the Circle Inspector of Police (P.W.13) reached at the P.S. and took charge of the investigation from that ASI (P.W.12). He immediately proceeded to the Village and in the forenoon, held inquest over the dead body of the deceased, which was lying in front of the main door of his house. He prepared the inquest report (Ext.2) and sent the dead body for post mortem examination. He also seized blood stained earth and sample earth as well as the axe and the wearing apparels of the accused and later on those of the deceased under proper seizure lists. The incriminating articles were sent for chemical examination to the Regional Forensic Science Laboratory, Berhampur. JCRLA No.40 of 2012 Page 3 of 11 {{ 4 }} On completion of the investigation, the Final Form was submitted placing the accused to face the trial for commission of offence under section 307/302 IPC. 3. Learned Sub-Divisional Judicial Magistrate, Nabarangapur, having taken cognizance of the offences, after observing all the formalities, committed the case to the Court of Sessions. That is how the trial commenced by framing the charges against the accused for the offence under section 307/302 IPC. 4. The plea of the defence is that of complete denial and false implication, which further stating that the deceased had received the injuries due to his fight with Dania Muduli (P.W.3). 5. The prosecution, in course of trial, has examined in total thirteen (13) witnesses whereas the defence has examined one in support of its plea implicating P.W.3 to be the author of the injuries sustained by the deceased. As already stated P.W.1 is the Informant and P.W.2 is the wife of the deceased whereas P.W.3 is the other injured of the village soon before the assault upon the deceased and P.W.4 is another injured in the incident, which took place at Village-Baghra in continuation of the first incident. The Doctor, who had examined the injured (P.W.3), namely, Dainia Muduli is P.W.7 and the other Doctor, who conducted the autopsy over the dead body of the deceased is P.W.8. The Investigating Officers are P.Ws.12 & 13. Besides leading the evidence by examining the above witnesses, the prosecution has also proved the documents, which have been admitted in evidence and marked Exts.1 to 16. Out of those, importants JCRLA No.40 of 2012 Page 4 of 11 {{ 5 }} are the FIR (Ext.1), the inquest report (Ext.2) and the post mortem report (Ext.6). The seizure lists have been proved and marked Exts.10, 12, 14 & 15 and the injury reports are Exts.5 & 7. 6. The Trial Court, on going through the evidence of the Doctor (P.W.8), who had conducted the post mortem examination, has noticed one incised would over the right parital area of scalp of the size of 7 cm X 5 cm with the corresponding internal injuries. He deposed the death of the deceased to be homicidal in nature. By taking the same into consideration with all other available evidence on record, such as the C.I. of Police (P.W.13), who had held the inquest over the dead body of the deceased and recorded the statement of other prosecution witnesses, the Trial Court has concluded that the death of Badsanu Jani was homicidal. This aspect of case was not seriously challenged in the Trial and this is also the situation before us. A careful reading of the evidence of the Doctor (P.W.8) reveals that the fatal injury is the incised would, which he noticed on the right parital area of the scalp, which is of quite considerable dimension. As per the evidence of P.W.8, he too had noticed the corresponding internal injury upon dissection. According to his evidence, the injuries are ante mortem in nature and are possible to by an axe, which was produced before him and also produced in the trial and marked M.O.I. He has noted all these in his report (Ext.6). The answer to the query posed in course of investigation under vide Ext.7 has been admitted in evidence and marked as Ext.8. Absolutely there is challenge to the above evidence of P.W.8. In view of all these above, when We go through the evidence of the I.O. (P.W.13), who had held inquest over the dead body of the deceased and evidence of other witness, i.e., son of the deceased JCRLA No.40 of 2012 Page 5 of 11 {{ 6 }} and the injured Mugu Jani (P.W.1), We find ourselves to be wholly in agreement with the conclusion arrived at by the Trial Court that the death of the deceased is homicidal in nature. 7. Learned counsel for the Appellant submitted that the prosecution, in the case, has failed to establish any motive on part of the accused in committing the crime. He submitted that for that reason, the entire prosecution case has to be doubted and so also the versions of all those prosecution witness, who have come forward in directly implicating the accused to be the author of the fatal injuries upon the deceased as well as the author of the injuries upon P.Ws.1 and 4 by tangia and lathi respectively. He further submitted that the evidence of all the witnesses being read together, indications come as regards the real background facts which are being suppressed. According to him, when the accused had absolutely no such reason before him or grudge against the deceased and other injured persons (P.Ws.1 & 4), the evidence of prosecution witnesses implicating the accused have to be taken in that light that they at any cost wanted to put this accused behind the bar so as to serve their evil purpose. Inviting the attention of the Court to the evidence of P.Ws.1, 2, 3 & 4, he submitted that these witnesses cannot be taken to be trustworthy witnesses as they are not at all stating any such motive part of the accused in playing said role in the said incident. 8. Learned Additional Standing Counsel for the Respondent submitted that it is not the sine qua non for success of the prosecution that in every case, the motive must have proved. According to her, so long as the other evidence available on him stand convincing and are not open to reasonable doubt, a conviction can be well secured without the proof of JCRLA No.40 of 2012 Page 6 of 11 {{ 7 }} any motive. He further submitted that when the eye witnesses have come forward to implicate the accused in committing the offence and here there are many, who have absolutely no axe to grind against the accused, the conviction basing upon their evidence is wholly sustainable as those evidence clearly appear to be wholly reliable and trustworthy. She further submitted that the evidence of the wife of the deceased, who is the eye witness to the occurrence as well as the evidence of the injured witnesses wholly establish the guilt of the accused beyond reasonable doubt and these also find full corroboration from the medical evidence, through which it has also been established that the axe, which has been produced in the Trial as M.O.I, having been examined by the Doctor (P.W.8), after being seized from near the spot by P.W.13 can cause the fatal injury which was noticed on the head of the deceased. He, therefore, submitted that the accused has been rightly held guilty for commission of offence under section 302/307 IPC. 9. Keeping in view the submissions made, We have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the prosecution (P.Ws.1 to 13) as also the from the side of the defence (D.W.1) and have perused the documents admitted in evidence marked as Exts.1 to 16. 10. Proceeding to judge the sustainability of the finding of the Trial Court in holding the accused guilty for commission of offence under section 307/302 IPC, in addressing the submissions, as above, it would be necessary for us to examine the evidence obtained during trial. JCRLA No.40 of 2012 Page 7 of 11 {{ 8 }} Much emphasis having been given for the non-establishment of the motive behind the crime, it be stated that as per the settled principles of law, the motive bears importance mainly in cases which are based on circumstantial evidence or on the evidence of eye witnesses, who are inimical disposed of towards the accused. But, if the Court is satisfied that the evidence available on record establish the charge against the accused beyond reasonable doubt, the same cannot be overlooked simply being impressed upon the fact that the prosecution has not established the motive on the part of the accused to commit the crime. Therefore, We are required here to scrutinize the prosecution evidence as to whether those are convincing or if are open to reasonably doubt. 11. Important witnesses for the prosecution are the wife of the deceased (P.W.2), the first person, who had been injured (P.W.3) and the person (P.W.4), who had made an attempt to restrain the accused at some point of time. It has been stated by P.W.3 that when he had come out of his house to attend the call of nature, the accused dealt a blow by means of Tangia on left shoulder for which he fell down on the ground receiving bleeding injury on his left shoulder. He has also stated that his wife then had come and shifted him to the house. He has stated that after dealing the blow upon him, the accused directly went to the house of the deceased and killed him. The evidence of this witness receives corroboration from the medical evidence coming from the lips of the Doctor (P.W.7), who had examined him on police requisition and his report (Ext.3). This witness although had not said to have seen the accused dealing the blow on the head of the deceased, his evidence is to the extent that the accused, after causing injury upon him, went to the house of the deceased and that appears to be acceptable. JCRLA No.40 of 2012 Page 8 of 11 {{ 9 }} So far as the accused causing injury on this P.W.3, We find that said part of his evidence has not at all been shaken during cross- examination and nothing has been elicited from him to create any doubt in mind that he is falsely implicating the accuse for serving any mischievous purpose. Next, P.W.2’s evidence being gone through, it is seen that she is found to have stated that the accused suddenly dealt a blow by means of Tangia on the head of her husband when he had gone out of the house to attend the call of nature. It is her evidence that the accused, receiving the blow, immediately fell down and succumbed to injuries. She has also stated that her son was then absent and so her daughter went to call him. It is further stated that the accused, after dealing the blow, ran away from the place and his son as well as other relatives, having chased him, had caught hold of him at a distance near the hillock. P.W.1 is the son of the deceased, who has lodged the FIR (Ext.1). His evidence is to the effect that on return to the house by hearing from his sister (P.W.6), he found his father lying dead in a pool of blood in front of their house with cut injury on his head. He also states that by then, many persons had gathered there and her mother (P.W.2), being asked, stated that the accused by means of a Tangia, had caused the injury on the head of his father. He has further stated to have chased the accused and the accused was brought. Although some variations appears in the evidence of P.Ws.2 and 3 as regards the reason for the deceased at that point of time to come out of the house; that appear to be too minor and does not in any way affect their positive version as to the role of the accused which has not been shaken. The evidence of P.W.1, however, stand to corroborate the evidence of P.W.2 that she immediately disclosed JCRLA No.40 of 2012 Page 9 of 11 {{ 10 }} the incident as to the authorship of the fatal injuries upon the deceased in implicating the accused. The evidence of P.W.2 also finds corroboration from P.W.3 when he has stated that after causing injuries upon him, the deceased ran towards the house of the accused. The evidence of all the prosecution witnesses are consistent on the score that the dead body was lying in front of the house of the deceased. P.W.4 is a witness who states that the accused was restrained in their village when he was running away after killing the deceased and causing injury to a person. The evidence of all these witnesses, in our considered view, have remained wholly unshaken and We find no reason even to entertain any doubt over the said evidence or to suspect these witnesses as to have been falsely implicating the accused. The only eye witness to the occurrence as to the death of Badsanu Jani, no doubt is the widow wife of the deceased, who has been examined as P.W.2. But her relationship is not enough to term her as a interested and partition witness especially when no such material in support of the same has been elicited either from her or from any other witnesses. So, her evidence cannot be mechanically rejected on the sole ground that she is the wife of the deceased. No doubt, proof of motive on the part of the accused to commit a offence stands to satisfy the judicial mind about the likelihood of the authorship, but that even being absent, on the face of evidence coming from other reliable witnessed directly implicating the accused in playing the role in committing the crime, the Court cannot be rejected as the consequence to the failure to prove the motive. Therefore, even without further going to discuss the evidence as to recovery of the axe at the instance of the accused, while in police custody, pursuant to his statement in leading the police and witnesses to JCRLA No.40 of 2012 Page 10 of 11 {{ 11 }} the place of concealment followed by its seizure, We find no such infirmity in the finding of the Trial Court that the prosecution has established the charges against the accused for commission of the offence under section 302/307 of IPC. On a conspectus of analysis of the evidence hereinabove, this Court finds that the prosecution has proved its case against accused beyond reasonable doubt and as such the judgment of conviction and order of sentence impugned in this Appeal are not liable to be interfered with. 12. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 23rd December, 2011 passed by the learned Sessions Judge, Nabarangpur, in Criminal Trial No.66 of 2009 are hereby confirmed. The accused Butu Muduli being on bail by order dated 19.12.2014 passed by this Court Misc. Case No.172 of 2014, he is directed to surrender before the Trial Court forthwith to serve out the sentence. The Trial Court would do well to take all such effective steps, as provided in law, to secure his presence for the purpose, as aforesaid. Dr.S.K. Panigrahi, J. I Agree. (D. Dash), Judge. (Dr.S.K. Panigrahi), Judge. Basu JCRLA No.40 of 2012 Page 11 of 11