MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.77 of 2010 In the matter of an Appeal under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 4th May, 2005 passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.20/97 of 2003. Hemlal Mundari ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode) For Appellant - Mr. T.K. Mishra (Advocate) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 04.04.2024 : Date of Judgment : 15.04.2024 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and the order of sentence dated 4th May, 2005 passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.20/97 of 2003 arising out of G.R. Case No.485 of 2002 (T.C. No.207/03) corresponding to JCRLA No.77 of 2010 Page 1 of 13 Gorumahisani P.S. Case No.44 of 2002 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Rairangpur. 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.1,000/- (Rupees One Thousand) in default to undergo rigorous imprisonment foe one (1) month for commission of the said offence. 2. Prosecution Case:- On 25.12.2002 around 9.00 a.m., one Samrai Mundari (Informant-P.W.1) presented a written report with the Officer-in- Charge (O.I.C.), Gorumahisani Police Station (P.S.) stating therein that on the previous night around 8.00 p.m., the paddy sheaves
Facts
heap near his house, was gutted with fire. During then, the father of Samrai (Informant-P.W.1), namely, Dakua Mundari was present. But, after the extinguishment of the fire, Dakua was not seen at the place. So, Samrai (Informant-P.W.1) and others searched for him and despite thorough search, Dakua was not traced out in the night. On the following morning, Samrai (Informant-P.W.1) found the dead body of his father (Dakua) lying in the house of the accused with cut bleeding injuries on his neck with one Paniki (kitchen knife) was lying nearby. The accused Hemlal and his family members were not found in their JCRLA No.77 of 2010 Page 2 of 13 house although they were very much present in the previous evening. Receiving the above report, the O.I.C. (P.W.10) treated the same as FIR (Ext.1) and upon registration of the criminal case, took up investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.10) examined the Informant (P.W.1) and recorded his statements under section 161 of Cr.P.C. Having visited the spot, the I.O. (P.W.10) prepared the spot map (Ext.11). He (P.W.10) held the inquest over the dead body of Dakua and prepared the report (Ext.2) and sent the same for post mortem examination by issuing necessary requisition. The I.O. (P.W.10) seized one Paniki (kitchen knife) from the spot under seizure list (Ext.3) and one blood stained Kantha (thin mattress), one blanket and other articles under seizure list (Ext.4). The wearing apparels of the accused and the deceased were seized by the I.O. (P.W.10) under seizure lists (Ext.5 & 6). The seized incriminating articles were sent for chemical examination through Court. On completion of the investigation, Final Form was submitted placing the accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Raingpur, on receipt of the Final Form, took cognizance of said offence and after observing the JCRLA No.77 of 2010 Page 3 of 13 formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offence against the accused. 5. The prosecution, in support of its case, has examined in total ten (10) witnesses during Trial. As already stated, the informant, who happens to be the son of the deceased is P.W.1. P.W.2 is an independent witness who had seen the accused running away from his house and P.W.3 is another independent witness who had seen the accused in the village road. P.W.4 is the Ward Member before whom the accused made the extra-judicial confession. P.Ws.5 & 6 are the co-villagers, who had seen the dead body Dakua. P.W.7 is the Medical Officer, who had collected the nail clippings and blood samples of the accused whereas the Doctor, who held the autopsy over the dead body of Dakua has been examined as P.W.9. The I.O. of the case, at the end, has come to the witness box as P.W.10. 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 13. Out of those; important are the FIR (Ext.1); inquest report (Ext.2); the post mortem report (Ext.9); and the spot map (Ext.11). The Chemical Examiner’s report had been admitted in evidence and marked Ext.13. JCRLA No.77 of 2010 Page 4 of 13 6. The accused, having taken the plea of complete denial and false implication, has, however, not tendered any evidence, but has admitted that the dead body of Dakua was found out in his house.
Legal Reasoning
discharged the initial burden of establishing the prima facie guilt of the accused beyond reasonable doubt, it is to be held that the JCRLA No.77 of 2010 Page 6 of 13 accused has failed to prove facts, which are within his special knowledge and the burden shifting on him to prove what happened in that night has remained undischarged. He further submitted that the evidence of P.W.2 is very clear that the accused and his family members in that night around 8.00 p.m. were seen to be running away from their house towards the forest and has also been said by P.W.3 that the mother of this accused was seen by him to have been running away on the village road in that night. He further submitted that when the accused has taken plea that he had gone to his sister’s place with other members of the family, he is not stating as to how the dead body of Dakua was found inside his house. So, according to him, the evidence of P.Ws.2 & 3 coupled with the evidence as to the recovery of the dead body with injuries from the house of the accused, the prosecution has discharged the initial burden of proving the charge, which having shifted upon the shoulder of the accused, it has not been discharged. He submitted that in addition to the above, the circumstance stands tht in course of investigation, blood of human origin of Group-A was detected on the full pant of the accused, which too has gone unexplained by the accused. He, therefore, submitted that the judgment of conviction and order of sentence, which are impugned in this Appeal, are not liable to be interfered with. JCRLA No.77 of 2010 Page 7 of 13 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 10) and have perused the documents admitted in evidence marked as Exts.1 to 13. 10. The prosecution has examined the Doctor (P.W.9), who had conducted the autopsy over the dead body of Dakua. As per his evidence, during autopsy, he had noticed one incised wound of size 5” X 3” X 3½” extending from left angle of mandible to middle of neck on left side. He had also found another incised would of size 3” X ½” X skin depth over middle of the neck. He has stated that the major vessels of the neck like carotid artery and jugular vein were cut and divided and the trachea part of larynx and esophagus were cut opposite to the injury. His evidence is that due to excessive haemorrhage and shock on account of the above injury, the death has taken place. All such features have been noted by P.W.9 in his report (Ext.9). That Paniki (M.O.I), having been examined by the Doctor (P.W.9), he in clear terms has stated that with the same, the injury found on the left side of the neck of the deceased was possible. Other prosecution witnesses have also stated about the said injury on the neck of the deceased and that has also been stated by the I.O. (P.W.10), who had held inquest over the dead body of Dakua and JCRLA No.77 of 2010 Page 8 of 13 prepared the report (Ext.2). Thus, the prosecution has well proved that Dakua met a homicidal death after having inflicted with the injuries on his neck. 11. Coming to the question as to who was the author of such injury on the neck of Dakua (deceased) leading to his death, we find that the prosecution has not led any direct evidence and the case against this accused is based on circumstantial evidence. The first circumstance is that Dakua in that night was found missing, which has been stated by P.W.1, who is none other than the son of Dakua and the Informant of the case, who too has stated that on the next morning, in course of his search, when he came to the house of the accused and called him, nobody responded and then he, having pushed the door of the house, saw his father lying dead on a Kantha (thin mattress) on the ground with cut injury on his neck and one Paniki (kitchen knife) very much embedded to the neck of Dakua with bleeding all around. P.W.4 has also stated that after the extinguishment of the fire on the heap of the paddy sheaves, Dakua was no more seen in that place and he was informed by P.W.1 in the morning that Dakua was lying dead in the house of the accused. He further states that he with other villagers had been to the house of the accused and saw the dead body of Dakua in the house of the accused and then he was having bleeding injury on his neck with JCRLA No.77 of 2010 Page 9 of 13 one a Paniki (kitchen knife) over the neck when the accused and other members of the family were absent. His categorical evidence, which is important is that in the previous evening, the accused and his family members were very much there in the house and he was told by one neighboring lady that in the previous night, she had seen the accused and his family members running away towards the Village-Hatia while sitting on her verandah with a dibiri. It is also his evidence that he with one Nunaram, having gone to village Hatia, had seen the accused in the house of his brother-in-law and on being asked, the accused disclosed before him that since Dakua was quarrelling with him, he had pressed and cut his neck by a Paniki (kitchen knife). So, the evidence of P.W.1 find full corroboration from the evidence of P.W.4 as regards the recovery of the dead body of Dakua from the house of the accused when the accused and his family members were not present in the house. When P.W.4 has stated that on the previous morning, the accused and his family members were in their house, he of course has not said as to how he could come to know about that. At this juncture, when we turn to the evidence of P.W.2, we find her to have stated that it was around 8.00 p.m. in the night, she had seen the accused and his mother and sisters running towards forest from their house and it has also been the evidence of P.W.4 that she had heard about it JCRLA No.77 of 2010 Page 10 of 13 from a neighboring lady. P.W.2 has also stated that at the relevant time, she was on the verandah of her house holding a dibiri. Another witness (P.W.3) has stated in clear terms to have seen the mother of the accused running way on the village road. The I.O. (P.W.10), having visited the house of the accused had seen the dead body of Dakua lying in his house and also to have seized Paniki (kitchen knife) from their under seizure list (Ext.3). The inquest report (Ext.2) reveals that the dead body of Dakua was on kantha (thin mattress) soaked with blood. With the above evidence on record, we find that the prosecution has discharged the initial burden of proof pointing the guilt at the accused and that being so, it is for the accused to prove the facts, which are his special knowledge. The accused in his statement recorded under section 313 Cr.P.C. states to have left his house with his mother and sisters to leave her sister in her place. Of course, it is the evidence of the prosecution witness (P.W.4) that accused was found in the house of his brother-in-law in another village and it is also the evidence of the I.O. (P.W.10) that he had arrested the accused later. Such explanation, however, does not appear as plausible, as the accused has not stated that when he left, his house was open or if so locked, how someone could enter into the house. JCRLA No.77 of 2010 Page 11 of 13 It is also not the evidence that the accused had returned home in the morning. Therefore, when the initial burden is discharged by the prosecution and the burdens shifting upon the accused, the said shifted burden appears to have not been repelled through the evidence. In that view of the matter, the prosecution case can be said to have been established that the accused is guilty of the charge levelled against him in intentionally causing the death of Dakua by inflicting the serious injury on his neck beyond reasonable doubt. That apart, we find that the evidence of P.W.4 that the accused had confessed before him to have so assaulted the deceased. Furthermore, it is proved through the evidence that the full pant of the accused, which was seized in connection with the case, was containing blood of human origin of Group-A, which has also gone without any explanation stands as another strong circumstance to support the above conclusion against the accused. On a conspectus of analysis of the evidence hereinabove, this Court finds that the prosecution has proved the charge against the accused that he has committed the murder of Dakua beyond reasonable doubt. 12.
Arguments
7. Mr.T.K. Mishra, learned counsel for the Appellant (accused) submitted that there is no direct evidence to connect this accused with the crime in attributing the authorship of the injuries found over the dead body of Dakua to this accused. He submitted that the case of the prosecution is based on circumstantial evidence and the important circumstance is that Dakua was found lying dead with cut injuries on his neck in the house of the accused. He submitted that said circumstance has been well explained away by the accused that he, his mother and sister had left the house in the previous night and they were nor in the house during the night having gone to his sister’s place. He further submitted that the Trial Court ought not to have placed reliance upon the evidence of P.Ws.2 & 3 that they had seen the accused leaving his house and going towards the forest in the night; firstly because the evidence of those two witnesses do not fully tally with each other and secondly, their version also varies as regards that leaving of the accused from his house in that night. He also submitted that the absence of the accused and other members of the family at the relevant time at house being proved, the JCRLA No.77 of 2010 Page 5 of 13 detection of the dead body of Dakua in their house, has no significance in view of the specific stand of the accused that they were absent in the house for some good reason. He, therefore, submitted that although the prosecution has established its case that Dakua met a homicidal death after having received the cut injury on his neck and other places; yet the complicity of the accused has not been established by leading clear, cogent and acceptable evidence beyond reasonable doubt. He, therefore, urged that the judgment of conviction and order of sentence impugned in this Appeal, are liable to be set aside. 8. Mr.P.K.Mohanty, learned Additional Standing Counsel submitted all in favour of the finding of guilt of the accused, as has been returned by the Trial Court in holding that the prosecution has proved the charge against the accused beyond reasonable doubt as to have committed the murder of Dakua. He submitted that the circumstance as to the recovery of the dead body of Dakua with severe injuries on his neck and other places from inside the house of the accused when has no way been explained by the accused although he was having the special knowledge as to how it all happened and how the dead body of Dakua was found lying in his house, the prosecution, having
Decision
In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 4th May, 2005 passed JCRLA No.77 of 2010 Page 12 of 13 by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.20/97 of 2003, are hereby confirmed. Since the Appellant (accused), namely, Hemlal Mundari is on bail, he is directed to surrender before the Trial Court forthwith to serve out the sentence. V. Narasingh, J. I Agree. (D. Dash) Judge (V. Narasingh) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 16-Apr-2024 14:39:42 JCRLA No.77 of 2010 Page 13 of 13