The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA NO.12 OF 2017 In the matter of an Appeal under section-383 of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 12.12.2016 passed by the learned Additional Sessions Judge, Champua in Sessions Trial Case No.46 of 2015. Anadi Mahakud ….. Appellant ---- State of Odisha …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================== For Appellant - Mr. Asish Jena, Advocate. For Respondent - Mr. D.K. Mishra, Additional Govt. Advocate. CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING :13.07.2023 : DATE OF JUDGMENT:24.07.2023 D.Dash, J. The Appellant from inside the jail has assailed the judgment of conviction and order of sentence dated 12.12.2016 passed by the learned Additional Sessions Judge, Champua in Sessions Trial Case No.46 of 2015 arising out of Joda P.S. Case No. 37 of 2015 corresponding to G.R. Case No.183 of 2015 of the file of learned
Facts
Judicial Magistrate First Class (J.M.F.C.), Barbil. JCRLA NO.12 OF 2017 Page 1 of 11 {{ 2 }} The Appellant (accused) thereunder has been convicted for commission of offence under section-302 of the Indian Penal Code, 1860 (for short ‘the IPC’) and accordingly, he has been sentenced to imprisonment for life and pay fine of Rs.5,000/- in default to undergo simple imprisonment for a period of two years. 2. On 23.03.2015 at about 4.40 pm, when the Sub-Inspector (S.I.) of Police attached to Joda Police Station was performing patrolling duty at village Banspani, a written report of Charchil Mahakud, son of Ghasinath Mahakud of village Banspani (Informant-P.W.13) was received. The S.I. of Police (P.w.16) then immediately sent the said written report (Ext.7) to the Inspector-In-Charge (IIC) of Joda Police Station for registration of the case. The IIC having received the said written report, treated the same as F.I.R. and registering the case, directed the S.I. of Police (P.W.16) to take up investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.16) examined the Informant (P.W.13) and the witnesses. He visited the post and prepared spot map (Ext.10). He also conducted inquest over the dead body of the deceased-Gurubari @ Raibari Mahakud in presence of the witnesses and prepared the report (Ext.1) in that regard. The dead body was then sent for postmortem examination by issuing necessary requisition. The I.O. (P.W.16) apprehended the accused near the spot, when he was sitting on the Page 2 of 11 JCRLA NO. 12 OF 2017 {{ 3 }} verandah. It is stated that accused then gave recovery of the axe, which was lying near the dead body and it was seized under seizure list (Ext.2). The sample earth and blood stained earth were seized by the I.O. (P.W.16) under seizure list (Ext.3). The accused was medically examined and the wearing apparels of the deceased as well as the accused were seized. The accused was then forwarded in custody to the Court. The incriminating articles were sent for chemical examination through Court at the instance of the I.O. (P.W.16), who had made necessary prayer to that effect. On completion of investigation, Final Form was submitted by the I.O.(P.W.16), placing the accused to face the trial for commission of offence under section-302 of the IPC. 4. Learned Sub-Divisional Judicial Magistrate J.M.F.C., Barbil having received the Final Form as above, took cognizance of the said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the trial commenced by framing the charge against the accused for the said offences. 5. In the Trial, the prosecution examined in total seventeen (17) witnesses. As already stated P.W.13 is the informant who had lodged the F.I.R. (Ext.7). The daughter through the first wife of the accused when has been examined as P.W.2, the owner of the house where accused was staying with the deceased has came to the witness box as P.W.3. Few other independent witnesses have also been examined. The Page 3 of 11 JCRLA NO. 12 OF 2017 {{ 4 }} Doctor who had conducted the postmortem examination over the dead body of the deceased is P.W.17; whereas the Investigating Officer (I.O.) has come to the witness box as P.W.16. The prosecution besides leading evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Exts.1 to 13. Out of those, the important are the F.I.R. (Ext.7), inquest report Ext.1, the spot map, Ext.10 and the postmortem report Ext.13. The Chemical Examiner’s report has been marked in the Trial as Ext.C-1. 6. The accused in support of his defence of complete denial and false implication has not tendered any evidence. 7. The Trial Court upon examination of the evidence of the Doctor (P.W.17), who had conducted postmortem examination over the dead body of Gurubari @ Raibari Mahakud (Deceased) and other evidence has returned the finding that the death of Gurubari @ Raibari was homicidal. In fact this aspect of the case was not under challenge before the Trial Court and that is also the situation before us. The Doctor (P.W.17), during postmortem examination has found one laceration about 5!! X 2!! X1!! on the back of the left side of the neck involving fracture of second and third cervical vertebra. According to his version, the death was due to shock of hypovolemic Page 4 of 11 JCRLA NO. 12 OF 2017 {{ 5 }} type, may be due to injury caused by some sharp and heavy weapon. He has stated that the injuries are antemortem in nature and the death was homicidal. When above is the evidence of the Doctor (P.W.17) we too find the evidence of the I.O. (P.W.16) that he had noted the injuries sustained by the deceased, while holding inquest over the dead body and has so reflected in his own language in the inquest report, Ext.1. When all the above evidence have remained unshaken and firm; without least hesitation, we concur with the finding of the Trial Court that Gurubari @ Raibari met homicidal death. 8.
Legal Reasoning
under section-161 of the Cr.P.C.; we find that this P.W.2 had so stated before the I.O. regarding that confession of accused. But, when we go to the evidence of P.Ws. 2 and 3 that so many villagers had already arrived; none of them come forward to state regarding the accused making any confession. The evidence of P.W.2 on that score under the circumstance is highly unsafe to be relied upon, when other important JCRLA NO. 12 OF 2017 Page 8 of 11 {{ 9 }} witness P.W.4 has also not stated anything about that confession of the accused. P.W.4 in the evidence has stated that when he had been to the backyard of his house to pass urine, he saw the accused holding an axe in one hand and dragging his wife (deceased-Gurubari) to his house and by then Gurubari had sustained bleeding injury on her neck and was dead. During cross-examination, it has been confronted to this witness that he had not stated in his earlier statement given before the I.O. (P.W.16) that when he had been to pass urine, he saw the accused holding an axe in one hand and dragging the dead body of the deceased who had sustained bleeding injury on her neck had not been stated, the P.W. 4 had asserted to have said so. But here again we find that the same has not been proved through the I.O. (P.W.16). But now, in order to clear doubt as to whether such confrontation was having any basis or not, we perused the statement of P.W.4 recorded under section-161 of the Cr.P.C. It is seen that this witness had not stated to have seen the accused holding axe in one hand and dragging the dead body of the deceased, who had sustained bleeding injury on her neck when he was examined by the I.O. (P.W.16) during investigation. Such an important fact, when had not been stated by P.W.4 in her earlier statement and as that is the main basis now for the prosecution to implicate the accused, it is certainly vital omission and that amounts to contradiction. The Page 9 of 11 JCRLA NO. 12 OF 2017 {{ 10 }} response of P.W.4 is quite unnatural that if he had seen the accused dragging his wife holding an axe on one hand, he would not inform anyone and would wait till the arrival of the police to tell him. Therefore, when evidence of P.W.4 that he had seen the accused dragging the deceased with bleeding injuries on her neck by holding on one hand while holding an axe on the other is not believable; there remains the only other circumstances that those two witnesses (P.Ws. 2 and 3) had seen the accused sitting in the house by the side of the dead body of his wife. 13. First of all, it be stated that there is variance in the evidence of P.Ws. 2 and 3 as to the place where the accused was sitting and the dead body was lying. Secondly, when P.W.2 states that the accused was sitting in front of the house where the dead body was lying which obviously means that the dead body was lying in front of the house. P.W.3 does not even state that the accused was sitting by the side of the dead body of his wife. Then P.W.4 does not state about the accused sitting or standing. Even when we accept for a moment, the evidence of P.W.2 that the deceased was sitting by the side of the dead body of his wife; that being in front of the house by itself would not be enough to say that thereby the complicity of the accused stands proved beyond reasonable doubt. When such an incident suddenly happens that one’s wife is killed by a culprit, quite for a long time, the husband being near Page 10 of 11 JCRLA NO. 12 OF 2017 {{ 11 }} would either stand and sit speechless, as it was wholly unexpected that such a ghastly incident would happen before him. Thus, even when that fact is taken to have been proved, the burden of proof would not shift upon the shoulder of the accused to explain as under what circumstance his wife received such fatal injuries as no other evidence showing surrounding circumstances emerge. On a conspectus of discussion of evidence as hereinabove, we are of the view that the prosecution has failed to establish the charge against the accused beyond reasonable doubt. 14. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 12.02.2016 passed by the learned Additional Sessions Judge, Champua in Sessions Trial Case No.46 of 2015 are hereby set aside. The Appellant (accused) being in jail custody, he be set at liberty forthwith, if his detention is not required in connection with any other case. Dr.S.K. Panigrahi, J. I Agree. Signature Not Verified Digitally Signed Narayan Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 24-Jul-2023 15:08:57 (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. JCRLA NO. 12 OF 2017 Page 11 of 11
Arguments
Learned Counsel for the Appellant(accused) submitted that the Trial Court without properly appreciating the evidence of the witnesses examined from the side of the prosecution, especially P.Ws.2, 3 and 4 has rendered an erroneous finding that the prosecution has proved its case against the accused beyond reasonable doubt. He submitted that the evidence of P.W.2 that he on his arrival in the house of the accused had seen accused sitting in front of the house and deceased was lying dead, on the surrounding factual settings is highly improbable and unbelievable that a person committing the murder of another or his wife as the case here is, would still be sitting by the side of the dead body lying in front of the house so as to give an impression in the mind of others as to his complicity. He further submitted that the evidence of this witness, when tested with the evidence of other witness, P.W.4 on Page 5 of 11 JCRLA NO. 12 OF 2017 {{ 6 }} whose evidence, the prosecution depends very much, their version with regard to the presence of the accused by the side of the deceased at the relevant time being irreconcilable is highly doubtful. He, therefore, submitted that the Trial Court ought not to have placed implicit reliance upon the evidence of P.Ws.2 and 4 in basing the conviction. 9. Learned Counsel for the State-Respondent submitted all in favour of the finding of guilt as has been returned by the Trial Court holding the accused guilty of commission of offence under section-302 of the IPC. He submitted that when there is no material to show that P.Ws. 2 and 4 had any reason to falsely rope in this accused in the crime, they having deposed in a quite natural manner as to what they saw and came to know on their arrival; the Trial Court has rightly accepted the same. He further submitted that the evidence of P.Ws. 2 and 4 get corroboration from the evidence of the I.O., P.W.16 as also the evidence of Doctor P.W.17, who has opined that such injuries noticed on the body of the deceased were possible by the weapon i.e. axe seized from the spot in course of investigation. 10. Keeping in view the submissions made; we have carefully gone through the judgment passed by the Trial Court and we have also extensively travelled through the depositions of the prosecution witnesses i.e. P.Ws. 1 to 17 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 13. Page 6 of 11 JCRLA NO. 12 OF 2017 {{ 7 }} 11. In order to decide the sustainability of the finding of the Trial Court as to the complicity of this accused by addressing the rival submission, let’s first take up the critical examination of the evidence of P.W.2. He states that when he returned home, he found accused- Anadi in front of the house and there the dead body of his wife (deceased) was lying. It is stated that, when accused present there, was asked as to why he killed the deceased, the sharp reply came that as the deceased did not part with the money for purchase of Handia (local intoxicant and most common and much liked in rural areas of the State especially among the members of Scheduled Tribe), he murdered her by means of axe (budia). This P.W.2 as if knew that accused had killed; asks him why he did so. The normal enquiry when would have been as to what happened that the wife of accused had been killed. 12. It is however, seen that during cross-examination, he is stating that when he reached the house, there was gathering of many persons obviously the co-villagers. When this P.W.2 says that the accused was sitting in front of the house and deceased was lying dead, he is not stating whether dead body was inside the house or outside. P.W.3 however, states that dead body was inside the house where she and the accused used to reside. He having not witnessed the occurrence has gone to state that accused assaulted the deceased by means of axe (budia) on her neck for which she sustained severe Page 7 of 11 JCRLA NO. 12 OF 2017 {{ 8 }} bleeding injuries on her neck and died. He also states that when he returned, he found a gathering of many persons there and the deceased wife of the accused was lying dead with injury on her neck. P.W.3 does not state as to whether at that time, the son of the accused P.W.2 was present there or not. This P.W.3 is also not stating about the accused making any confession regarding his guilt in killing his wife before them. In fact, P.W.2 appears to have introduced this part that the accused on being asked confessed to have committed the murder of his wife. To that effect, the defence having suggested to P.W.2 that he had not stated about the confession of the accused during his earlier examination by the police in course of the investigation; that has been denied. But then we find that the defence has not taken any step to prove the same through the I.O., P.W.16. In order to ascertain as to whether it was an inadvertent omission on the part of the learned defence counsel, when we go through the statement of P.W.2 recorded