MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.75 of 2010 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 28.07.2004 passed by the learned Adhoc Additional Sessions Judge (Fast Track Court), Baripada in S. T Case No.34/279 of 2003. Madan Tudu …. Appellant -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant- For Respondent- Mrs. Bhakti Sudha Sahoo Advocate (Amicus Curiae) Mr. G. N. Rout Additional Standing Counsel CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of Hearing :12.03.2024 :: Date of Judgment: 22.03.2024 D.Dash, J. The Appellant, by filing this Appeal from inside the Jail, has challenged the judgment of conviction and order of sentence dated 28.07.2004 passed by the learned Adhoc Additional Sessions Judge (Fast Track Court), Baripada in S. T Case No.34/279 of 2003, arising out of G.R Case No.117 of 2003, corresponding to Kaptipada P.S. Case JCRLA No.75 of 2010 Page 1 of 11 {{ 2 }} No.22 of 2003 of the Court of the learned Sub-Divisional Judicial Magistrate (SDJM), Udala. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of Indian Penal Code, 1860 (in short, ‘the IPC’) and he has been sentenced to undergo imprisonment for life for the offence under section 302 of the IPC. 2. Prosecution Case:- On 22.04.2003, around 7 pm, one Narayan Hembram (informant- P.W.1) lodged a written report with the Officer-in-charge (OIC) (P.W.7) of Kaptipada Police Station stating therein that on the previous morning, accused Madan with one Basi, who was leaving with him as his wife had been to the house of Mangal Tudu in village Sanjunapal for attending the marriage ceremony of his daughter. On 22.04.2003 early morning, Basi was found lying in a serious condition having bleeding injuries on her person. She was lying near Gohiragosain hill. Basi was then shifted to Udala hospital in a commander jeep where the Doctor declared her dead. It is stated that accused Madan had confessed to have killed Basi before one Bhuta Murmu (P.W.6) of village Itagarh in presence of one Unda@ Alem Hembram of that village. JCRLA No.75 of 2010 Page 2 of 11 {{ 3 }} The above report being received, the OIC (P.W.7) treated it as
Facts
FIR and after registration of the case, took up the investigation. 3. In course of investigation, the I.O (P.W.7) examined the informant (P.W.1), visited the spot and prepared the spot map (Ext.7). The I.O (P.W.7) seized one lathi under seizure list vide Ext.2. He also seized a torn blouse & broken bangles, blood earth, sample earth, 2 pieces of imitation ear-flower under seizure list vide Ext.4. He seized one white saree with red colour pala, one imitation nose flower, one brass like finger ring on production of A.S.I-G.P Mallik and prepared the report to that effect vide Ext.8. On 24.04.2003, the I.O (P.W.7) seized the blood sample & nail clippings of the accused under the seizure list (Ext.3). He also examined other witnesses. The I.O (P.W.7) arrested the accused on 23.04.2003 and forwarded in custody to the Court. The seized incriminating articles were sent for chemical examination to SFSL, Rasulgarh through Court. On completion of investigation, Final Form was submitted by the I.O (P.W.7) placing the accused to face the Trial for commission of offence under section 302 of the IPC. 4. Learned SDJM, Udala, having received the Final Form as above, took cognizance of the offence under section 302 of the IPC and after JCRLA No.75 of 2010 Page 3 of 11 {{ 4 }} observing the formalities, committed the case to the Court of Sessions for trial. That is how the Trial commenced against the accused framing the charge for the said offence. 5. In the Trial, prosecution in total has examined seven (07) witnesses. Out of whom, the informant, who had lodged the written report which was treated as FIR vide Ext.1 is P.W.1. P.W.2 & P.W.3 are the witnesses to the seizure. P.W.4 & P.W.6 are two witnesses before whom the accused was said to have confessed to have killed his wife Basi. The Doctor, who had conducted the Post Mortem Examination over the dead body of the deceased, has come to the witness box as P.W.5 whereas the Investigating Officer (I.O) is P.W.7. 6. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Ext.1 to Ext.10. Out of those, the important are the FIR, Ext.1, Seizure List, Ext.2, Inquest Report, Ext.5, Post Mortem Report, Ext.6, Spot Map is Ext.7 and the Chemical Examination Report is Ext.9. 7. The plea of the accused is that of complete denial and false implication. However, the accused has not tendered any evidence in support of defence. JCRLA No.75 of 2010 Page 4 of 11 {{ 5 }} 8. Mrs. Bhakti Sudha Sahoo, learned counsel for the Appellant (accused) submitted that the finding of guilt as has been recorded against the accused by the Trial Court is based on mere conjenctures and surmises and not at all on the legal evidence on record. She further submitted that when the evidence of P.W.1 as to have seen the accused and Basi (deceased) in the night in the marriage ceremony of the daughter of Mangal Tudu of Village Sanjunapali where many other persons had also gone to attend and then present in the absence of further evidence that accused and Basi together left the house of Mangal and were coming on the way in the night is of no value. According to her, said evidence of P.W.1 cannot be taken that the deceased was last seen in the company of the accused. She next submitted that the other evidence pointing the complicity of this accused is the evidence of P.W.4 and P.W.6, before whom, it is said that the accused had confessed to have committed the murder of Basi. Inviting our attention to the depositions of said witnesses, she points out the absurdity and submitted as to how unbelievable they are on that particular score. According to her, the way P.W.4 & P.W.6 have stated that the accused came and the manner he is said to have confessed to have committed the murder of Basi is highly doubtful, and, furthermore, the conduct of P.W.4 & P.W.6 after having heard from the accused as to how Basi died by remaining JCRLA No.75 of 2010 Page 5 of 11 {{ 6 }} silent casts grave doubt on their evidence on that score. She, therefore, submitted that even though the prosecution has established the fact that Basi met a homicidal death by examining the Doctor (P.W.5), who had conducted autopsy over the dead body of the deceased and other witnesses, the evidence as to the complicity of this accused is absolutely insufficient to say that the prosecution has established the charge against the accused beyond reasonable doubt. 9. Learned counsel for the Respondent-State while supporting the judgment of conviction impugned in this Appeal, contended that P.W.4 & P.W.6 are two rustic village witnesses and when they have come forward to depose that the accused confessed before them to have committed the murder of Basi and it was in the morning and as they do not have any axe to grind against the accused they cannot be said to be untrustworthy witnesses. He submitted that with the available evidence of P.W.1 that Basi and the accused were seen in the house of Mangal, while attending the marriage function of the daughter of Mangal, as no such materials has surfaced to show that said statement of the accused before P.W.4 & P.W.6 was not voluntary, the Trial Court has committed no error in convicting the accused for commission of the offence under section 302 of the IPC. JCRLA No.75 of 2010 Page 6 of 11 {{ 7 }} 10. Keeping in view the submissions made, we have carefully read the impugned judgment passed by the Trial Court. We have also gone through the evidence of the prosecution witnesses i.e. P.W.1 to P.W.7 and have perused the documents admitted in evidence and marked Ext.1 to Ext.10. 11. P.W.1 is the informant and he is the co-villager of the deceased. In his FIR (Ext.1) lodged on 22.04.2003 morning, he has stated to have learnt that the accused had confessed to have committed the murder of Basi before Bhuta Murmu (P.W.6) of village Itagarh and it was to the hearing of Alma Hembram (P.W.4) of Marchi Sahi who was then present with P.W.4. He has further mentioned therein that the accused was not being traced out. During Trial, he has stated that on 21.04.2003, he had seen the accused and Basi in the house of Mangal Tudu in the morning as well as in the afternoon but is not stating that they left together. It is his evidence that around 6 p.m after the traditional dance was over, he left the house of Mangal. He states that on 22.04.2003 morning, having learnt from Bikram Murmu and Banguru Murmu of their village that a dead body of a female was lying near Nala of Gohiragosain hill, he with Sitala, Budhurai, Sunaram, Budhan & Bhatu had gone to that place and they had shifted Basi to the hospital at Udala. JCRLA No.75 of 2010 Page 7 of 11 {{ 8 }} In his entire examination-in-chief, he has not whispered a word as to have heard about such confession of the accused before P.W.4 & P.W.6. He even does not state to have met him at any time. He is also not saying to have seen Basi and accused leaving the house of Mangal. nor to have seen them on the way or the accused near about the place where Basi was lying in an injured condition when he with others went there. Prosecution has led no further evidence on that score. Thus the evidence of P.W.1 that he has seen the accused and the deceased in the house of Mangal around 6 pm on 21.04.2003 is no aid to the prosecution case. From the unchallenged testimony of the Doctor (P.W.5), who had conducted autopsy over the dead body of Basi, we, however, find the prosecution to have established beyond doubt that Basi met homicidal death which also derive support from the evidence of other witnesses including P.W.1 that they had seen Basi lying in a serious condition with injuries and later on was declared dead. Evidence of P.W.1 however cannot be taken to be, the evidence in establishing the last seen theory. This now takes us to the evidence of two other witnesses i.e. P.W.4 & P.W.6. As already stated both P.W.1 had indicated in the FIR (Ext.1) to have learnt that the accused had made the confession before P.W.4 & P.W.6. As already noted, his evidence on that score is wholly JCRLA No.75 of 2010 Page 8 of 11 {{ 9 }} silent. When P.W.1 has not stated to have heard anything from P.W.4 & P.W.6, he has also not gone to say that to from which other source, he came to know about that. P.W.4 has stated that on 22.04.2003 morning around 7.30 am when he was brushing teeth, accused was returning on his cycle from the side of village Sanjunapal and he having got down from the cycle at the place where P.W.4 & P.W.6 were present came near them and disclosed to have killed Basi and told to be going to Udala. His evidence is that he was not in visiting terms to the house of the accused. Furthermore, the accused seeing them directly coming to them and so confessing at that hour without any evidence that the two were the men of his extreme confidence or that in that direction of screening the evidence or helping him to save himself, he had also told something to them seeking their help as having reposed confidence is very hard to believe. He does not state that after hearing from the accused, he had disclosed the same before anybody including P.W.1 The evidence of P.W.4 as well as P.W.1 on that particular score becomes highly unbelievable. Evidence of P.W.6 is to the effect that is the same is that of P.W.4. Both have stated that after the accused came and told before them as to have killed his wife, both are not stating that after hearing, the same from the accused they out of curiosity had asked anything to the accused as to why and how he did so which is bound to JCRLA No.75 of 2010 Page 9 of 11 {{ 10 }} be the normal reaction of everyone. The accused again on the way coming before two persons that too when one (P.W.4) was not visiting his house nor it is there in evidence that they were having special relationship or friendship of such high degree; gives normal feeling in mind that these two are not the witnesses of truth and the possibility of they being set up later is not ruled out. P.W.4 has stated to have been examined by the police on 27.04.2003 and he is not stating as to if till then he had told anyone about that. Both (P.W.4 & P.W.6) are also not stating to have seen the accused in the village during all these period. So the evidence of the prosecution as regards the so called extra judicial confession appear to us to be highly improbable and unbelievable and both the witnesses P.W.4 & P.W.6 according to us cannot be said to be trustworthy for their evidence to be relied upon. For all the aforesaid discussion of evidence and the reasons noted,
Legal Reasoning
we find that the impugned judgment of conviction and order of sentence cannot be sustained. 12. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 28.07.2004 passed by the learned Adhoc Additional Sessions Judge (Fast Track Court), Baripada in S. T Case No.34/279 of 2003 are hereby set aside. JCRLA No.75 of 2010 Page 10 of 11 {{ 11 }} The Appellant (accused) be set at liberty forthwith, if his detention is not warranted in connection with any other case. V. Narasingh, J. I agree. (D. Dash), Judge. (V. Narasingh), Judge. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 22-Mar-2024 17:20:52 JCRLA No.75 of 2010 Page 11 of 11