The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.79 of 2016 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 June, 2016 passed by the learned Sessions Judge, Mayurbhanj, in S.T. Case No.135 of 2014 arising out of G.R. Case No.184 of 2014 of the Court of learned S.D.J.M., Udala. Astami Mahakud State of Odisha ---- -versus- …. …. Appellant Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant For Respondent - Mr. Suryakanta Dwibedy, Advocate. - Mr.S.S.Kanungo, Additional Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K.PANIGRAHI Date of Hearing : 01.05.2023 :: Date of Judgment:05.05.2023 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 23rd June, 2016 passed by the learned Sessions Judge, Mayurbhanj at Baripada in S.T. Case No.135 of 2014 arising out of G.R Case No. 184 of 2014 corresponding to Kaptipada P.S. Case No.52 of 2014 of the Court of the learned Sub Divisional Judicial Magistrate (SDJM), Udala. The Appellant with her husband namely Ratikanta Mohakud faced the Trial being charged for commission of offence under section JCRLA No.79 of 2016 Page 1 of 10 {{ 2 }} 302/34 of the Indian Penal Code, 1860 (in short, ‘IPC’) and it is the Appellant, who alone has been convicted for commission of offence under section 302 of the IPC whereas her husband has been acquitted of the charge. Accordingly, the Appellant (accused) has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- and indefault of payment of fine, to further rigorous imprisonment for 6(six) months for commission of offence punishable under section 302 of the IPC. Prosecution Case:- 2. On 11.05.2014, Arun Mohakud (Informant-P.W.1) and his wife Shanti Mohakud (deceased) had been to attend the marriage ceremony of their nephew Babuli Biswal. They returned to their house in the morning of 02.05.2014. Since they had not gone for sleep in the last night, after taking Pokhala (watered rice), the husband of the deceased i.e. informant (P.W.1) slept on the veranda of his house. It is said that the deceased went to the house of this accused Astami being called by her. It be stated here that the accused is related to the deceased as sister- in-law. It was around 4 p.m. in order to give money to the drummer of the village namely, Kalandi Mukhi, the informant accompanied by that Kalandi, went to the house of this accused. They then found none to be present in the house but could notice broken bangles of the deceased and her ear-flower with a thenga lying on the veranda. He then could see that his wife was sleeping inside the house with her legs and hands upwards in a necked condition. So he showed the same to that Kalandi Mukhi. The informant (P.W.1) then went to call the villagers including the ward Member, sarpanch and choukidar who too came and saw the dead body of Shanti. It is stated that by that time accused Astami was returning from jungle. Seeing them present in her house, she ran towards JCRLA No.79 of 2016 Page 2 of 10 {{ 3 }} the jungle again and while she was running, she was telling to have killed the deceased. It has also been stated that although they had tried to catch hold of her, the accused somehow managed to conceal her presence. The husband of the deceased namely, Arun Mohakud then presented a written report to the Officer-in-charge (OIC) of Kaptipada
Legal Reasoning
Police Station. The OIC then treating the said report as FIR (Ext.1) immediately registered the case and directed one Sub Inspector of Police attached to that Police Station to take up investigation. 3. In course of investigation, the Investigating Officer (I.O-P.W.11) examined the informant and other witnesses namely Kalandi. Having visited the spot, he prepared the spot map (Ext.8). He also seized other incriminating materials in presence of the witnesses and prepared seizure list. The Inquest over the dead body of the deceased being held by him, he prepared the report (Ext.2). He then issued requisition for Post Mortem over the dead body of the deceased. The accused was also medically examined. The incriminating articles were sent for chemical examination through Court. On completion of investigation, Final Form was submitted placing the accused and her husband (since acquitted) to face the Trial for commission of offence under section 302/34 of the IPC. 4. Learned SDJM, Udala on receipt of the Final Form took cognizance of the said offences and after observing the formalities, committed he case to the Court of Sessions. That is how the Trial commenced by framing the charge for the said offences against this accused and her husband (since acquitted). JCRLA No.79 of 2016 Page 3 of 10 {{ 4 }} 5. In the Trial, prosecution in total has examined twelve witnesses. As already stated P.W.1 is the informant, who happens to be the husband of the deceased. P.W.2 is a post occurrence witness who had been to the house of the accused and saw the dead body lying there. P.W.4 is another post occurrence witness and P.W.5 and P.W.6 those two witnesses before whom it is said that the accused confessed to have committed the crime. The drummer who had been engaged in the marriage ceremony has been examined as P.W.7. The Doctor who had conducted autopsy over the dead body of the deceased has been examined as P.W.9 and so also his colleague (P.W.11). The doctor, who had examined the accused has come to the witness box as P.W.12. The I.O has come to be examined as P.W.11. Besides leading the evidence by examining above the witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.5/2. Out of those, the important are the FIR, Ext.1, whereas Ext.2 is the inquest report. The Post Mortem Report has been exhibited as Ext.6 and the report of the Chemical Examiner is Ext.14. The incriminating articles such as bamboo lathi, wearing apparels of the deceased and the accused having been produced during Trial, those have been marked as Material Objects (M.O.I to M.O.VIII). 6. The case of the defence is that of denial and false implication. The accused has tendered no evidence during the Trial. 7. The Trial Court having gone through the evidence of the Doctor (P.W.9) who had conducted autopsy over the dead body of the deceased and his report (Ext.6) and having taken the same with the evidence of the I.O (P.W.11) and the inquest report (Ext.2) as well as the evidence JCRLA No.79 of 2016 Page 4 of 10 {{ 5 }} of other witnesses, has arrived at a conclusion that Shanti met a homicidal death. In fact this aspect of this case was not under the challenge before the Trial Court and this is also the situation before us. This P.W.9, during P.M. Examination has seen the face, chest wall and abdomen to have grossly swollen with small blebs on upper part of chest wall and neck and there was bleeding from the left nostril and mouth as also multiple ante mortem abrasions scattered over both forearms, dossum of hands, legs and back of chest. It is his evidence that on dissection, he found a hematoma with distortions of skull bones. He has further deposed to have noticed the meninges to be torn and brain was grossly lacerated with profused interacarnial bleeding hemorrhage. As per his evidence, there were multiple fractures of maxilla and mandible with disfiguration of face. All these he had noted in his report which had been admitted in evidence and marked as Ext.6. The I.O (P.W.11) who had held inquest over the dead body of the deceased has also noted many such injuries in the report (Ext.2) and that also receive support from other evidence. With such voluminous of evidence as above, which have gone unchallenged, when it is the evidence of the Doctor that the injuries are noticed by her were all ante mortem in nature and the reason for the death, we are led to accept the finding of the Trial Court that the nature of death of the deceased was homicidal. 8. Learned Counsel for the Appellant (accused) submitted that the finding of the Trial Court as regards the complicity of the accused is not based on proper appreciation of evidence on record. According to him, the Trial Court ought not to have believed P.W.5 and P.W.6 that at any point of time the accused had confessed before them to have intentionally caused the death of the deceased by brutally assaulting her. In this connection, he has invited out attention to the depositions of JCRLA No.79 of 2016 Page 5 of 10 {{ 6 }} the P.W.5 and P.W.6 in placing as to how those are not only absurd but also run contrary to the ordinary human conduct. He, therefore, submitted that the conclusion of the Trial Court that the evidence of P.W.5 and P.W.6 inspire evidence meriting their acceptance is unsustainable. He further submitted that when the evidence of P.W.5 and P.W.6 as regards the extra judicial confession is excluded from the arena of consideration, the other evidence on record do not make the chain of events so complete in every respect in pointing the finger of accusation at this accused by ruling out all the hypothesis other than the guilt of this accused. 9. Learned Counsel for the State refuting the above submission, contended that the Trial Court’s finding as regards the complicity of the accused is based on just proper appreciation of evidence both oral and documentary. He submitted that when P.W.5 and P.W.6 had no axe to grind against the accused they in a very natural manner when have stated that it was the accused who before them had disclosed that she was the author of the commission of crime in intentionally causing the death of Shanti, the judgment of conviction impugned in this Appeal is well in order and so also the consequential order of sentence would stand uninterfered. 10. Keeping in view the submissions made, We have carefully read the impugned judgment of conviction. We have also travelled through the depositions of the witnesses (P.W.1 to P.W.12) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.14. 11. It is the settled position of law that the Court should not presume from the beginning that extra judicial confession is always suspect and is a weak piece of evidence. The Court is further required to examine the JCRLA No.79 of 2016 Page 6 of 10 {{ 7 }} same with a greater degree of care and caution and the acceptance of the same would depend upon the nature of circumstance, the time when confession is made and the credibility of the witnesses to speak about such confession and finally whether the confession way voluntary and truthful. The extra judicial confession in order to form the foundation of a conviction, it must be ensured that the same inspires confidence and is corroborated by other independent reliable evidence. The extra judicial confession when is surrounded by suspicions circumstances and suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, its credibility becomes doubtful and it loses its importance and in that event it would be difficult to base a conviction on such a confession. It has always been said that the extra judicial confession must be established to be true and made voluntarily and the matter then must be in a fit state of mind. The same thus must successfully pass through the test of credibility. 12. In the backdrop of the above settled position of law holding the field, let us proceed to examine the evidence of P.W.5 and P.W.6 upon whom the prosecution relies much in proving the extra judicial confession of the accused. 13. The deceased and accused are the maternal aunts of this P.W.5. It is stated by P.W.5 that 6-7 months prior to the recording of the evidence, on a day the accused Astami had gone to her house and asked whether they had cooked food or not. When her mother’s sister (P.W.6) stated that on account of death of Shanti, no food had been cooked. This P.W.5 has stated that thereafter she asked the accused as to whether she had killed Shanti or any other person is the author of he crime. It is her evidence that since the dead body was found in the house of the accused, JCRLA No.79 of 2016 Page 7 of 10 {{ 8 }} she so asked the accused. She states that the accused on being asked told to have killed Shanti and then leaving the place went towards jungle. It is her evidence that she has told Gramrakhi regarding such confession. The evidence of this P.W.5 thus when given a simple reading, it would be seen that the accused had not voluntarily disclosed before her to have caused the death of the deceased but it was only on an enquiry being made by this P.W.5. This P.W.5 when states to have asked the accused as to if she had killed the deceased and the accused answered in the affirmative, the normal human conduct is found to be lacking on the part of P.W.5 that one in that situation would have the further anxiety to know as to why such extreme action was taken and what compelled the accused to do so and how the accused so executed. This P.W.5 next states that P.W.6 was then present with her. P.W.5 states that then she first disclosed about such confession to one Bhanu Mukhi, whom she treats as a sister-in-law as per village courtesy. The evidence of P.W.6 is however, running like this that when she was with P.W.5 in the house of P.W.5, accused Astami came and asked them regarding preparation of the food. It has been further stated by her that immediately thereafter P.W.5 told accused as to why she killed the deceased. But P.W.5 has stated to have enquired from the accused as to whether she had killed the deceased which is variance. So as per the evidence of P.W.6, it was already in the mind of P.W.5 and her opinion that accused had killed the deceased and P.W.5 only wanted to know the reason for such action being taken by the accused when accused told to have killed during cross-examination. P.W.6 says that accused came and then P.W.5 told her that she had killed Shanti as the dead body was in her house. Thus there appears major discrepancies in the evidence of P.W.5 and P.W.6 as to how and under what circumstance, accused JCRLA No.79 of 2016 Page 8 of 10 {{ 9 }} disclosed. The evidence of these two witnesses even if taken on their face value do not come to show that it was accused had voluntarily stated to have caused the death of the deceased. Same way the evidence of P.W.6 also faces the criticism that being present by the side of P.W.5 she has shown no anxiety to know the reason behind such drastic action being taken by the accused even after hearing from her that she had killed the deceased in not further enquiry as to in which manner it was executed. Neither P.W.5 nor P.W.6 have stated to have informed the husband of the deceased (P.W.1) about such confession. Though P.W.5 says that one Bhanu Mukhi was told about said confession of the accused; that Bhanu has not been examined, although his evidence would have provided some sort of corroboration to the evidence of P.W.5 and P.W.6. Thus we find that the prosecution by leading the evidence through P.W.5 and P.W.6 has not been able to prove beyond reasonable doubt that the accused had confessed before them to have intentionally caused the death of Shanti. 14. Now let us proceed to examine the other circumstance which emanates from the evidence. Evidence is there on record that the deadbody was found in the house of the accused but none of the witnesses who had gone to the said house and had entered into the same by opening the front door of the house have stated to have seen the accused at the relevant time in the said house. It has also been specifically stated by P.W.1 that nobody was present by spot when he saw broken bangles, thenga lying on the veranda. Admittedly, it is not stated by any of the witnesses that during the time when the incident took place, the accused alone was residing in that house for quite some time. We find the evidence to be not there on record that at some point of time the accused and the deceased either together had gone to the JCRLA No.79 of 2016 Page 9 of 10 {{ 10 }} house or the accused having gone first the deceased had followed or the other way that the deceased having gone there, the accused went thereafter. Therefore, these circumstances do not unerringly point the finger of guilt at the accused. In such state of affair in the evidence the only other circumstance shown that in one of the wearing apparels of the accused human blood of the same group as that of the deceased had been detected; cannot form the sole basis to fasten the guilt upon the accused in holding her to be the author of the crime by saying that it is none other than the accused who had murdered the deceased. From all these aforesaid discussion of evidence on record, we find that the judgment of conviction and order of sentence impugned in this Appeal cannot be sustained. 15. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 23rd June, 2016 passed by the learned Sessions Judge, Mayurbhanj at Baripada in S.T. Case No.135 of 2014 arising out of G.R Case No. 184 of 2014 are hereby set aside. The Appellant (accused) be set at liberty forthwith, if his detention is not required in connection with any other case. (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. Dr.S.K.Panigrahi, J. I Agree. Gitanjali GITANJALI NAYAK Digitally signed by GITANJALI NAYAK Date: 2023.05.05 17:48:58 +05'30' JCRLA No.79 of 2016 Page 10 of 10