The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.63 of 2013 (An appeal U/S.383 of the Code of Criminal Procedure, 1973 against the judgment passed by S.K. Paty, Sessions Judge, Keonjhar in S.T. Case No.134 of 2010 corresponding to G.R. Case No.150 of 2010 arising out of Keonjhar Sadar P.S. Case No.34 of 2010, of the Court of S.D.J.M., Keonjhar) Haladhar Munda … -versus- Appellant State of Odisha … Respondent For Appellant : Mr. A.K. Sahoo, Amicus Curiae For Respondent : Mr. P.K. Mohanty, ASC CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :22.01.2024 DATE OF JUDGMENT:29.02.2024 G. Satapathy, J. 1. The appellant calls in question the judgment of conviction and order of sentence dated 20.11.2013 passed by the learned Sessions Judge, Keonjhar in ST Case No.134 of 2010 convicting the JCRLA No.63 of 2013 Page 1 of 20 appellant for offence punishable U/S.302 of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.5,000/- in default whereof, to undergo Rigorous Imprisonment (RI) for two years for the offence U/S.302 of IPC with stipulation of pre trial detention be set up against the substantive sentence as awarded. 2. Briefly stated, the prosecution case is that on 05.02.2010 at about 11.30 AM when PW2-Jagannath Munda returned to his home in village Dhudurpal, he found the dead body of his mother Sakuntala Munda (hereinafter referred to as the “deceased”) with head being severed from the rest part of her body. He being grieved by such situation when cried, PW4-Singa Munda, the ward member and other villagers reached near the house of PW2 and, thereafter, the father of PW2 namely Haladhar Munda (hereinafter referred to as the “convict”) by coming from the jungle arrived there. When PW4 and others asked the convict, he replied as “since she was always irritating him, he killed her by severing her head from the trunk by means of a Budia JCRLA No.63 of 2013 Page 2 of 20 (axe)”. On this disclosure of the convict, PW2 by informing the Gramarakhi of village Guhalchatua came with him to the Keonjhar Sadar Police Station and
Legal Reasoning
lodged an FIR at about 3.20 PM in the afternoon on 05.02.2010 before the IIC, PW8-Debesh Chandra Biswal who registered Keonjhar Sadar PS Case No.34 of 2010 and took up the investigation of this case, in the course of which, he examined the informant and witnesses, held inquest in respect of trunk and head of the deceased under Exts.2 to 4, sent the dead body to DHH, Keonjhar for post mortem examination and arrested the convict on the same day at 7.00 PM. The convict while in custody of PW8, gave recovery of the Budia (axe) pursuant to his disclosure statement and, accordingly, PW8 seized the Budia (axe) under Ext.6 in presence of witnesses. PW8 also seized the blood stained earth, sample earth, wearing apparels of the deceased and that of the convict and other incriminating materials including the Budia and sent the same to SFSL, Rasulgarh, Bhubaneswar for chemical examination by successfully praying to the Court. On JCRLA No.63 of 2013 Page 3 of 20 completion of investigation, charge-sheet was submitted against the convict for offence U/S.302 of IPC under which cognizance was taken as well as charge was framed against the convict, who pleaded not guilty to the charge resulting in trial in the present case. 3. In support of the charge, the prosecution examined PWs.1 to 8 as well as proved certain documents under Exts.1 to 15 as against no evidence whatsoever by the defence. Of the witnesses examined in this case, PW.1 is the scribe of FIR, PW2 is the informant, whereas PW3 is the cousin of PW2, PW4-the ward member and PW5-another co-villager are the witnesses to the disclosure of convict as well as recovery and seizure of Budia (axe), PW6 is the Gramarakhi, whereas PW7 is the doctor who had conducted the autopsy over the dead body of the deceased and lastly, PW8 is the Investigating Officer. 4. The plea of the convict in the course of trial was one of complete denial and false implication. JCRLA No.63 of 2013 Page 4 of 20 5. After appreciating the evidence on record upon hearing the parties, the learned trial Court convicted the convict for the charge of uxoricide by mainly relying upon the extra judicial confession of the convict before PWs.2 to 4 and 6 and giving recovery of weapon of offence i.e. an axe and the evidence of motive of “quarrel” for the crime. 6. In assailing the impugned judgment of
Legal Reasoning
conviction, Mr. A.K. Sahoo, learned Amicus Curiae has strenuously argued before this Court that the learned trial Court having relied upon very weak piece of evidence of extra judicial confession and the recovery of weapon of offence being not established by the prosecution, the conviction itself is unsustainable in the eye of law. It is further submitted by Mr. Sahoo that the motive behind the crime having not been established against the convict, his conviction in the circumstance is not maintainable. Learned Amicus Curiae has, further, submitted that the circumstance sought to be established against the convict being inherently improbable and the same having not formed JCRLA No.63 of 2013 Page 5 of 20 any chain of events unerringly pointing towards the guilt of the convict in the murder of his own wife and the circumstance so brought on record being not in consistent with the hypothesis of the guilt, rather the same being consistent with the innocence of the convict, the conviction of the convict by way of circumstantial evidence is not only unfounded, but also liable to be set aside. In summing up his argument, learned Amicus Curiae has prayed to allow the appeal and acquit the convict of the charge of murder of his wife by setting aside the impugned judgment of conviction and sentence. 7. In reply, Mr. P.K. Mohanty, learned ASC has, however, strongly refuted the submission of the learned Amicus Curiae by submitting inter-alia that the circumstances so proved by the prosecution against the convict not only proved the guilt of the convict, but also it excludes all other hypothesis consistent with innocence of the convict and the evidence on record being in the form of extra judicial confession of the convict before his son and nephew and others clearly JCRLA No.63 of 2013 Page 6 of 20 not only incriminate the convict, but also corroborates the evidence of recovery which is further strengthened by the motive behind the crime of murder and, therefore, the conviction of the convict being on sound appreciation of evidence on record, it cannot be faulted with. In summing up his argument, learned ASC has, accordingly, prayed to dismiss the appeal. 8. For examining the legality of the impugned judgment of conviction by keeping in view the rival submissions, the materials on record has been duly traversed and the evidence is re-appreciated adequately and weighed. For the charge of murder, the homicidal death of the deceased is one of the requirements. In the case at hand, the convict never disputes or challenges the finding of learned trial Court about deceased suffering a homicidal death. However, as an abundant precaution, by going through the evidence of doctor who had conducted autopsy over the dead body of the deceased and the documentary evidence of FIR under Ext.1 and inquest reports under Exts.2, 3 and 4 and the oral evidence of witnesses, this JCRLA No.63 of 2013 Page 7 of 20 Court has found the prosecution to have established the homicidal death of the deceased beyond all reasonable doubt with ample evidence and there appears no dispute about homicidal death of the deceased. 9. Once the homicidal death of the deceased is found to have been established, the next question comes for consideration in a case of murder is who is responsible for such homicidal death of the deceased. PW1 is none other than the scribe and his evidence transpires that Jagannath Munda (PW2) informed him that his father (convict) has murdered his mother (deceased) by an axe. The evidence of PW1 further transpires that on 05.02.2010 at about 1 PM hearing crying from the side of the house of the accused- convict, he went there and found the dead body of the deceased-wife of the accused-convict lying inside the house of the accused-convict and her head had been completely severed. PW2 is the son of the convict and deceased and his evidence reveals that seeing the dead body of his mother, he cried and hearing his cry, the villagers including the Ward Member PW4-Singa Munda JCRLA No.63 of 2013 Page 8 of 20 arrived there and thereafter, Daktar Munda (PW3) who is the cousin of PW2 and the convict arrived there, but what is important is the specific evidence of PW2 transpires that when PW4-Singa Munda asked the convict as to how the deceased died, the convict told that as the deceased was always quarrelling with him, he has murdered her by assaulting with an axe and thereafter, the convict was detained by the villagers and subsequently, police being informed by the Ward Member arrived at the village and PW2 lodged the FIR. In the cross-examination of PW2, it was elicited by the defence from his mouth that PW3-Daktar Munda who is his cousin was also staying in his house and PW3 arrived in the house and then the convict. It is also elicited from the lips of PW2 that he cannot say the reason for tension between his father and mother and he has not enquired as to the cause of tension between his father and mother from his father. The evidence of PW2 with regard to extra judicial confession made by the convict before them is corroborated by the FIR. It is JCRLA No.63 of 2013 Page 9 of 20 also not in dispute that the FIR was lodged immediately just within less than three hours of the occurence. 10. Moving further, PW3 in his evidence has stated that on a Friday at about 8 AM to 8.30 AM when he left the house of his Mousa (uncle) for work in the jungle, his Mousa (convict) and deceased (Mausi) only were present in the house and at about 1 PM, he returned from the jungle and found the dead body of his Mausi(aunt) in the house and his Mousa was not present in the house and he went to house of Champa Munda to inform her about the incident and while he was returning from his Mousa’s house, he found PW2 in the house. It is the specific evidence of PW3 that his Mousa (convict) returned to the house two hours after his arrival i.e. at about 3 PM and the village Ward Member(PW4) asked his Mousa(convict) about the incident, but the convict told him(PW4) that as “SIA SABUBELE GEZ GEZ HABARU MU TABALARE HANI DEICHHI” (He had cut the head of the deceased since she was always annoying him). It is, therefore, very clear that the evidence of PW2 with regard to the extra JCRLA No.63 of 2013 Page 10 of 20 judicial confession made by the convict before PW4 and others is corroborated by the evidence of PW3. In addition, the evidence of PW3 also discloses about deceased being last seen in the company of the convict at 8.30 AM. According to the doctor PW7, the time since death of the deceased was within 12 hours to 36 hours and the doctor has conducted autopsy over the dead body of the deceased on 06.02.2010 at about 11.35 PM and, therefore, the probable time of death of the deceased might be in between 11.35 PM on 04.02.2010 to 11.35 PM on 05.02.2010, but as per the evidence of PW3, the deceased was last seen at about 8.30 AM on 05.02.2010 and the dead body was first seen at about 11.30 AM on 05.02.2010 by PW2 which in the circumstance appears that the time gap between death of the deceased and her being last seen in the company of the convict appears to be proximate and small which rules out the involvement of anyone else other than the convict himself. There was absolutely no cross examination by the defence to discredit the evidence of PW3 with regard to deceased last seen with JCRLA No.63 of 2013 Page 11 of 20 the convict in between 8 AM to 8.30 AM and the extra judicial confession made by the convict. 11. It is, of course, true that PW4 has not stated about the extra judicial confession of the convict, rather he stated about the confession of convict before police, but since the witness appears to be an aged one and rustic villager, he might have forgotten to say about the extra judicial confession of convict before them in absence of police inasmuch as he was not only a witness to extra judicial confession of the convict but also a witness to disclosure statement of the convict before police and there is every chance that the witness (PW4) might have been confused while deposing or might have forgotten to state such thing before Court due to lapse of time or on account of his poor individual capacity of memory, which is natural in case of truthful witnesses and the confession before police as stated by PW4 may be on account of his confusion with regard to extra judicial confession and disclosure statement of the convict, however, PWs.1 and 3 who are the son and nephew of the convict have stated consistently about JCRLA No.63 of 2013 Page 12 of 20 the extra judicial confession of convict before PW4 and others and there is no logic or reason behind the son of the convict deposing false evidence against his own father for the murder of his mother which in any way the defence has not taken such plea. 12. On the other hand, PW5 has also stated about extra judicial confession made by the convict before her, but it is, of course, stated by PW5 in the next sentence of her evidence that convict was in custody of the police at that time. The evidence of PW5 also transpires about convict giving recovery of the axe pursuant to his disclosure statement. According to PW5, the convict was in the custody of police and the convict stated that he(convict) has concealed the axe in his bed room and police recorded the statement of the convict vide Ext.5 and PW5 has also identified his signature in the disclosure statement under Ext.5/2. PW5 has also stated that the convict led the police to his bed room and brought out the axe and the police seized the axe in his presence under Ext.6. PW5 has also proved the seizure of cloth of the convict under Ext.8. It was JCRLA No.63 of 2013 Page 13 of 20 elicited from the mouth of PW5 in cross examination by the defence that PW4 had signed the document, wherein he has put his signature. A comparative analysis of evidence of PW4 and PW5 with regard to the disclosure statement of the convict and recovery of axe, their evidence corroborates to each other, which is further invigorated by the evidence of PW8-the IO who has stated that he arrested the convict and the convict admitted to have kept concealed the weapon of offence and further pleaded to give recovery of the same and he recorded the statement of the convict under Ext.5 and the convict gave recovery of one axe, the weapon of offence from his bed room and he seized the axe under Ext.6. The evidence of PWs.4, 5 and 8 clearly establishes the recovery of axe pursuant to the disclosure of convict. 13. The evidence of PW8, if read together with the evidence of PW5, it would go to disclose about seizure of cloth, wearing apparels of the convict and the evidence of PW8 further transpires that the incriminating materials including the wearing apparels JCRLA No.63 of 2013 Page 14 of 20 of the convict and the weapon of offence were sent to SFSL, Rasulgarh for chemical examination under Ext.4, but the chemical examination report Ext.15 discloses presence of human blood on the axe and one yellow colour dhoti of the convict. It is also elicited from the mouth of PW2 who is the son of the convict that his father was wearing a yellow colour dhoti and shirt and with those wearing apparels on his body, he(convict) was taken to the police station. It is, therefore, very clear that the yellow colour dhoti of the convict was in fact seized and sent to the Forensic Laboratory for chemical examination. At the same time, it was elicited from the mouth of IO in cross-examination that he had recorded the disclosure statement of the convict in presence of PWs.4 and 5 who have clearly stated about the disclosure of the convict and recovery of axe in their evidence. Hence, the recovery of axe and the disclosure statement of the convict have been well established by the prosecution beyond all reasonable doubt and the same was never being demolished in cross examination of the witnesses. JCRLA No.63 of 2013 Page 15 of 20 14. From a legal scrutiny of evidence on record in summing up the circumstances proved against the convict by the prosecution, it is found that: (i) The convict was last seen together with the deceased in between 8 to 8.30 AM on 05.02.2010 as deposed to by PW3. (ii) The dead body of the deceased was first noticed by PW2 at 12 noon in the house, when no one was present there. (iii) Subsequently, the convict, PW3 and others arrived there and the convict confessed before them to have killed the deceased by cutting her head as the later was always irritating him. (iv) The convict while being in custody of police gave recovery of the axe (Budia) stated to be stained with blood and it was seized by the IO as deposed to by PWs.4, 5 and 8. (v) The chemical examination report under Ext.15 discloses human blood on the axe (Budia) and dhoti of the convict which was seized by PW8 and sent to SFSL, Rasulgarh along with other incriminating materials for chemical examination. (vi) the motive behind crime is due to deceased irritating the convict. 15. On a careful consideration of above circumstances together with the prove of homicidal death of the deceased, the prosecution would be considered to have established beyond all reasonable JCRLA No.63 of 2013 Page 16 of 20 doubt through legal admissible evidence that the convict was the author of the crime inasmuch as above circumstances cumulatively taken form a chain of events unerringly pointing towards the guilt of the accused-convict and the circumstances so established against the convict are having definite tendency and character and it excludes all other hypothesis consistent with innocence of the convict and the proved circumstances against the convict are only consistent with the hypothesis of the guilt of the convict. At this stage, this Court adverting to the contention of the appellant that since he was having some abnormality, he cannot be convicted for the offence in view of the position of law that act of a person of unsound mind is not an offence, but in this case, there is neither any evidence tendered by the defence nor anything brought out from the mouth of witnesses to infer that the convict was of unsound mind. It is, of course, true that some of the witnesses have stated that the convict was having “Munda Dosa” which literally means abnormal mind, but what was the nature of abnormality was JCRLA No.63 of 2013 Page 17 of 20 never disclosed in the evidence nor was it proved by the defence. In order to bring an accused person within the ambit of Sec.84 of IPC which decriminalizes the act of an insane, but the insanity must be of such nature and character by which such person must be found deprived of knowing the consequence of his act and he must be found to have committed such act without having any motive or reason. In this case, the evidence as deposed to by the witnesses clearly goes to show that the convict has made extra judicial confession before his own son & nephew, and others by saying that since the deceased was irritating him, he killed by severing her head. It is, therefore, very clear that the accused-convict was not having insanity of such nature, which would bring him within the purview of Section 84 of IPC. Further, the insanity which is required to be established to bring an accused within the ambit of Sec.84 of IPC must be the legal insanity and it must be established that the accused did not know that what he was doing was wrong or that it was contrary to law. In this case, the evidence of PW6 also transpires that JCRLA No.63 of 2013 Page 18 of 20 when he was coming to the village Dhudurpal, he met the convict and when he asked him about the murder in his village, he (convict) told him that he committed the murder and then ran away knowing him as Gramarakhi. It is, therefore, very clear that the convict was conscious that what he had done was wrong and, therefore, it can be safely said that the plea of insanity is not applicable to the convict in the case at hand. 16. On a conspectus and re-appraisal of evidence on record together with the discussions made hereinabove, this Court finds that the learned trial Court has not only appreciated the evidence in proper perspective, but it has also come to a right conclusion by holding that the prosecution has clearly established the guilt of the convict beyond all reasonable doubt for the charge of uxoricide and, therefore, there is hardly any scope for this Court to interfere with the finding of the learned trial Court. It is, accordingly, found that the convict has been rightly held guilty of the charge of the murder of his own wife. JCRLA No.63 of 2013 Page 19 of 20 17.
Decision
In the result, the appeal sans merit stands dismissed, but no order as to cost. Consequently, the impugned judgment of conviction and order of sentence as recorded on 20.11.2013 by the learned Sessions Judge, Keonjhar in ST Case No.134 of 2010 are hereby confirmed. I Agree (G. Satapathy) Judge (D.Dash) Judge Orissa High Court, Cuttack, Dated the 29th day of February, 2024/Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 01-Mar-2024 16:25:47 JCRLA No.63 of 2013 Page 20 of 20