MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.33 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 11th June, 2010 passed by the learned Additional Sessions Judge (F.T.C.), Balangir at Patnagarh in Sessions Case No.176/69 of 2009. Jagdish Nial ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode) For Appellant - Mr.A.C. Rath (Advocate) For Respondent - Mr.G.N. Rout, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 10.04.2024 : 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 11th June, 2010 passed by the learned Additional Sessions Judge (F.T.C.), Balangir at Patnagarh in Sessions Case No.176/69 of 2009 arising out of G.R. Case No.153 of 2009 corresponding to Khaprakhil P.S. Case No.44 of 2009 of the Court JCRLA No.33 of 2010 Page 1 of 11 of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Patnagarh. 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.2,000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment foe six (6) months for commission of the said offence. 2. Prosecution Case:- On 25.04.2009 around 12.30 p.m, one Narayan Majhi (Informant-P.W.11) presented a written report with the Inspector- in-Charge (I.I.C.), Khaprakhol Police Station (P.S.) to the effect that his neighbour Jagdish Nial, the accused, was in the habit of quarreling with his wife Padma Nial. For that reason, Padma, with her children, had left the house of the accused and gone to her father’s house at Village-Karlamal. On 22.04.2009, the brother of Padma left Padma and her children in the house of the accused. On 25.04.2009 around 9.00 a.m., the wife of the brother of the accused, namely, Gouri-P.W.12 came running to him (P.W.11) and disclosed that the accused had killed his wife Padma and was searching for her daughter (Jharana-P.W.13). She, therefore, requested the Informant (P.W.11) to call her husband Chheliaram Page 2 of 11 JCRLA No.33 of 2010 (P.W.14), who was working in the Kendu leave godown of the Village. Thereafter, the Informant (P.W.11) along with Chheliaram (P.W.14) came to the spot and saw Padma lying dead in the front room of their house with injury on her neck. The accused, being present there, when was asked by the Informant (P.W.11) and other co-villagers regarding the incident, he confessed his guilt in stating that as his wife had illicit relationship with another person of the village, he had killed her by means of a kitchen knife (Panikhi). Receiving the above report, the I.I.C. (P.W.20) treated the
Legal Reasoning
same as FIR (Ext.6) and upon registration of the criminal case, took up investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.20) examined the Informant (P.W.11) and recorded his statements under section 161 of Cr.P.C. Having visited the spot, the I.O. (P.W.20) prepared the spot map (Ext.14). He (P.W.20) held the inquest over the dead body of Padma and prepared the report (Ext.1) and sent the same for post mortem examination by issuing necessary requisition. The I.O. (P.W.20) seized sample earth, blood stained earth and the weapon, i.e., kitchen knife (Panikhi) from the spot under seizure list (Ext.2). The wearing apparels of the deceased were seized under seizure list (Ext.3). JCRLA No.33 of 2010 Page 3 of 11 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., Patnagarh, on receipt of the Final Form, took cognizance of said offence and after observing the 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 twenty (20) witnesses during Trial. As already stated, the informant is P.W.11. P.W.13 is the daughter of the accused and the deceased and a witness to the occurrence. P.W.12 has rushed to the spot hearing the shout of the deceased. P.W.14 is the brother of the deceased. P.Ws.1, 2, 4, 5, 6, 7 & 8 are the co- villagers of the accused and P.W.3 is the Sarpach before whom the accused is said to have confessed his guilt. P.Ws.9, 10, 16, 17 & 19 are the police constables. The Doctor, who held the autopsy over the dead body of Padma has been examined as P.W.18. The I.O. of the case, at the end, has come to the witness box as P.W.20. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents JCRLA No.33 of 2010 Page 4 of 11 which have been admitted in evidence and marked Exts.1 to 18. Out of those; important are the FIR (Ext.6); inquest report (Ext.1); the post mortem report (Ext.11); and the spot map (Ext.14). The Chemical Examiner’s report had been admitted in evidence and marked Ext.18. 6. The accused, having taken the plea of complete denial and false implication, has, however, not tendered any evidence.
Legal Reasoning
7. Mr.A.C. Rath, learned counsel for the Appellant (accused) submitted that the case of the prosecution is mainly based on the evidence of P.W.13, who has been projected as the eye witness to the occurrence. According to him, the testimony of P.W.13 is not reliable that when he has stated the seat of injury to be the back of the neck, the Doctor (P.W.18) does not support the same when he says to have not noticed any injury on the back of the neck of Padma (deceased). He then submitted that the evidence of P.W.13 is exactly not on the score to have seen the accused directly giving the fatal blow upon the deceased on her neck. According to him, since at the time of assault, this P.W.13 was cleaning the utensils and, therefore, for her to see the accused dealing the fatal blow on the neck of Padma (deceased) was impossible. He, therefore, submitted that P.W.13 when was bearing grudge against the accused has falsely implicated him as the author of the said fatal injury leading to the death of Padma (deceased). He next JCRLA No.33 of 2010 Page 5 of 11 submitted that when the evidence of P.W.13 gets pushed beyond the arena of consideration, the evidence of other post occurrence witnesses, loose their significance and the evidence as to the extra judicial confession of the accused made before the co-villager, according to him, is highly improbable and that in view of the arrival of so many villagers, the accused voluntarily stating so is also not acceptable. He, therefore, urged that the judgment of conviction and order of sentence impugned in this Appeal, are liable to be set aside. 8. Mr.G.N.Rout, learned Additional Standing Counsel submitted all in favour of the finding of guilt against 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 Padma. According to him, the evidence of P.W.13, being scrutinized from all possible angles, no such feature is surfacing to raise any doubt with regard to her presence at the spot of occurrence at the relevant time and she, being the daughter of the accused and the deceased, is equally disposed of towards them and hardly there would arise the reason to falsely implicate the accused, who is none other than her father, more particularly, when after return from home to father-in-law’s place, she too had stated in the house of her father with others for two more days by the time the JCRLA No.33 of 2010 Page 6 of 11 occurrence took place. He submitted that the evidence of P.W.13 receive the corroboration from P.W.14 to a great extent especially in respect of the complicity of the accused. He also submitted that the evidence of P.Ws.1, 2, 3, 4, 6, 7, 7, 8 & 11 provide further corroboration to the evidenced of P.Ws.13 & 14, which also receive the corroboration from the evidence of the Doctor (P.W.18), who stated about the seat, size, dimension and nature of injury upon Padma (deceased). 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 20) and have perused the documents admitted in evidence marked as Exts.1 to 18. 10. The solitary eye witness to the occurrence here is none other than the daughter of the accused and deceased. She has been examined as P.W.13. It has been stated by her that her father (accused) used to take liquor and under the influence of liquor, her father (accused) was assaulting her mother (deceased) and other children. It is seen that she had stated that after one such incident, she and her mother (deceased) had been to their maternal grandfather’s place and returned on 22.04.2009 and after that, when the incident took place on 25.04.2009. She, of course has not stated about any untoward situation immediately after JCRLA No.33 of 2010 Page 7 of 11 their arrival or some time thereafter before the incident wherein her mother’s death was caused. Her evidence is that it was around 9.00 to 9.30 am after taking food, she was clearing the utensils and during that time, her mother (deceased) was returning to home with a pot of water and when she (deceased) was pouring the water in another pot, the accused present there caught hold of her tuff with one hand and holding kitchen knife (Panikhi) on the other hand, dealt a blow on her neck for which her mother (deceased) raised hullah by saying “Nani Go Dhan Go Mote Mari Deuchhi” (Sister come running, I am being killed). When immediately, she (P.W.13) rushed to the place, i.e., the room and then she says that the accused, leaving her mother (deceased) attempted to assault her (P.W.13) and she out of fear, ran away to the house of Santosh Kumbhar where her other brothers were playing and therefrom taking her brothers, she went to the house of Dasru Nial and took shelter there. During cross-examination, she has stated that the tube-well from where they used to take water is at a distance of 50-60 cubits from their house. It is her evidence that the house consists of two rooms and on being asked, she has specifically stated that the place where she was cleaning the utensils is at a distance of 5 to 6 cubits form from their house and she has also denied the fact that the room where the incident took place was not visible from the place where she was cleaning the utensils. The defence has not been JCRLA No.33 of 2010 Page 8 of 11 able to bring out any such other material to show that nothing happening in that room would be visible from the place where P.W.13 was sitting and claiming utensils. Her further evidence is that at the time of incident, the accused (father) was already inside the house and her mother (deceased) went with a pot of water. She further asserted to have seen the assault at a distance of 5 to 6 cubits for 4 to 5 minutes and shouted for help by crying at the relevant time. Her evidence is found to be free from any such blemish nor would show any suspicious features or contain any material contradictions. She too was examined during investigation and her statement had been recorded under section 161 Cr.P.C. as well as 164 Cr.P.C. The evidence of P.W.13 even if for a moment is not accepted that she had not seen the accused exactly dealing the blow by means of kitchen knife (Panikhi) on the back of the neck of Padma (deceased), yet there is absolutely no reason to disbelieve her version when she says to have immediately reached the room hearing the shouting of her mother (deceased) and saw the accused only to be present when he (accused) leaving her mother, attempted to assault this P.W.13 when it has been proved by the prosecution through the evidence of P.W.18 as also other evidence that the deceased met her death because of the injury received by her on her neck, there is also absolutely no explanation from the side of the accused as to how all that happened on his wife (deceased) that she was injured like JCRLA No.33 of 2010 Page 9 of 11 that and met her death at their home where he was then present. Thus, we find all the reasons to show that the evidence of P.W.13 is of sterling quality and can alone form the basis of conviction. But, then we all find the evidence of the co-villager, i.e., P.W.1 that when he went to the house of the accused, he saw the wife of the accused lying dead and the accused to be alone in the house. It is his evidence that the elder brother of the accused was looking after the children of the accused. The accused was his classmate and this P.W.1 states to have been told by the accused that he had killed his wife (Padma-deceased) by means of kitchen knife (Panakhi) suspecting illicit relationship of his wife with another person. The evidence of P.Ws.2, 4, 5, 6, 11 & especially that of P.W.11 provide good amount of corroboration to the evidence of the daughter of the accused and deceased examined P.W.13. P.W.12 is the wife of the brother of the accused. Her evidence is that when accused attacked the deceased, the deceased shouted “Nani Go Dhain Go”, i.e., directing at her and no sooner did she rush down, she saw Padma lying dead with injury and then she had seen the accused coming out and leaving the house, which having caused fear in her mind, she left. This P.W.12’s evidence receives corroboration from the evidence of P.W.11 whom she met and asked him to call her husband, Chheliram, the brother of the accused and then again Chheliram (P.W.14) has also stated to JCRLA No.33 of 2010 Page 10 of 11 have been so told by P.W.11 and then he comes P.W.11. These versions have not been shaken nor put to doubt through any materials being elicited during cross-examination. 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 his wife (Padma) beyond reasonable doubt. 11.
Decision
In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 11th June, 2010 passed by the learned Additional Sessions Judge (F.T.C.), Balangir at Patnagarh in Sessions Case No.176/69 of 2009, are hereby confirmed. V. Narasingh, J. I Agree. (D. Dash) Judge (V. Narasingh) Judge Signature Not Verified Basu 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.33 of 2010 Page 11 of 11