The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.49 of 2017 From the judgment of conviction and order of sentence dated 20th, March, 2017 passed by the learned 2nd Additional Sessions Judge, Rourkela, in Sessions Trial No.291/117 of 2013. ---- Smt. Budhuni Oram …. Appellant -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Biswajit Nayak Advocate For Respondent - Mr.S. S. Kanungo Additional Government Advocate CORAM: MR. JUSTICE D.DASH DR.JUSTICE S.K. PANIGRAHI Date of Hearing : 10.01.2023 : Date of Judgment:11.01.2023 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and order of sentence dated 20th, March, 2017 passed by the learned 2nd Additional Sessions Judge, Rourkela, in Sessions Trial No.291/117 of 2013 arising out of G.R. No.1877 of 2013, corresponding to Hatibari P.S. Case No.55 of JCRLA No.49 of 2017 Page 1 of 9 {{ 2 }} 2013 of the Court of learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Panposh. The Appellant (accused) has been convicted for commission of offence under section 302/452 of the Indian Penal Code, 1860 (for short, ‘IPC’) and accordingly, she has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand) with default stipulation to undergo rigorous imprisonment for three (3) months for commission of offence under section 302 of IPC and rigorous imprisonment of one (1) year and fine of Rs.1,000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for one (1) month for commission of offence under section 452 IPC. 2. Prosecution case is that on 07.09.2011 there was a quarrel between Samara Oram (Deceased) and Budhuni (accused). It is stated that when the quarrel took place, deceased had assaulted the accused by means of lathi. For the said incident, the accused had lodged F.I.R. at the Hatibari Police Station and a case had been registered against the deceased for commission of offence under section 341/325/506 of IPC. The deceased was also arrested in that case and he, being forwarded in custody to Court, was in jail for about a period of 6 months. Being released on bail, the deceased went to Surat to earn his livelihood. Fifteen days prior to the occurrence, he had returned to the village. Accused Budhuni was waiting for an opportunity to take revenge of the assault on her on the previous occasion. It is stated that on 16.08.2013 at about 11 A.M., when deceased alone was sleeping in his house, accused entered inside the room and assaulted him by means of an axe causing severe bleeding injury on his JCRLA No.49 of 2017 Page 2 of 9 {{ 3 }} person which led to his death. The wife of the deceased saw the accused assaulting the deceased and she informed the matter to Etwa Oram (P.W.2) who happens to be her son. He then proceeded to the Police Station and orally reported the matter, which being reduced into writing, has been treated as F.I.R. On registration of the case at the Police Station, investigation commenced. 3. In course of investigation, the Sub-Inspector of police (S.I.), who had been directed by the Inspector-in-Charge (I.I.C.) of Hatibari Police Station, took up the investigation, visited the spot, examined the witnesses including the complainant, conducted raids at different places to find out the accused, prepared the spot map, seized the incriminating articles and after holding inquest over the dead body of the deceased, prepared the report to that effect. He also sent the dead body of the deceased for holding Post Mortem Examination by issuing required requisition. On his prayer before the Court, the seized incriminating articles had been sent for chemical examination to the Regional Forensic Science Laboratory (RFSL), Sambalpur. On completion of investigation, Final Form was submitted against the accused to face the trial for commission of offence under section 302/452 of IPC. 4. Learned S.D.J.M., Panposh, on receipt of the above Final Form, having taken cognizance of the offences as above, having observed the formalities, committed the case to the Court of Sessions for trial. That is how the trial commenced against the accused after framing the charge. 5. In the Trial, Prosecution has in total examined 12 witnesses. Out of them, the complainant is P.W.1 and he is the son of the deceased JCRLA No.49 of 2017 Page 3 of 9 {{ 4 }} whereas P.W.3 is the wife of the deceased and she is the mother of P.W.2. The Doctor, conducting post mortem examination, has been examined as P.W.8 and others are the witnesses to the seizures and post occurrence witnesses. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked as Exts.1 to 5, out of which, important are the inquest report (Ext.3) and the Post Mortem Examination report is Ext.4. 6. The Trial Court, upon examination of the evidence of Doctor (P.W.8) and going through his report (Ext.4) as also the evidence of other witnesses such as those to the inquest and those who have seen the deceased after the incident, has held the death of Samara Oram to be homicidal. In fact, that aspect of the case was not under challenge before
Facts
the Trial Court and that is also the position before us. The evidence of Doctor, who had conducted the Post Mortem Examination over the dead body of Samara i.e. P.W.8, is very clear that she had noticed one lacerated wound of the size 2 ½ x 1” x brain cavity deep on the right side of forehead above the right eyebrow, one lacerated wound of size 1 1/2" x ¼” x eye ball cavity with bleeding and multiple fractures on the scalp with the brain being depressed into the brain cavity. Her evidence is that such injuries are possible by repeated blows on head by hard and blunt weapon and that all those injuries are ante mortem in nature. It has been stated by her that the time since death was 28 to 36 hours prior to her examination. There is absolutely no challenge to such evidence as also the evidence with regard to the inquest held over the dead body when the witnesses had noticed the JCRLA No.49 of 2017 Page 4 of 9 {{ 5 }} injuries on the head of the deceased which have been noted in the report (Ext.3). With such available evidence, without least hesitation, We concur of the finding of the Trial Court that the death of Samara was homicidal. 7. Having said as above, this Court is now called upon to examine the evidence on record as to how far the prosecution has established the fact that it is the accused, who had inflicted the injuries on the head of the deceased and has intentionally caused the death of the deceased. 8. The plea of defence is that of complete denial and false implication. The accused has, however, led no evidence despite the opportunity.
Legal Reasoning
which course in the given circumstances, in our view is not so permitted under the law to be adopted. Evidence of P.W.5, who happens to be the daughter-in-law of the deceased, is again clear that when she reached at the spot being called by P.W.3, she did not find the accused to be there. Therefore, the evidence of P.W.5 cannot be taken as providing corroboration to the evidence of P.W.3; more particularly, when she says to have not noticed as to when P.W.3 left the field near which this P.W.5 was also then working. The evidence of P.W.2 in the above circumstance when he has stated to have not seen the occurrence is of no help to the prosecution in providing any corroboration to the evidence of P.W.3. 13. Thus on a conspectus of the analysis of evidence made
Arguments
9. Mr.Biswajit Nayak, learned counsel for the Appellant (accused) submitted that the entire case of the prosecution revolves round the evidence of P.W.3 who has been cited as the eye witness to the occurrence and thus, his ocular evidence for the prosecution whether can be relied upon to fasten the guilt upon the accused is the consideration in this Appeal. He submitted that in view of the exaggeration that P.W.3 has made during the trial having a great departure from her statement before the police recorded under section 161 of Cr.P.C. and with her relationship with the deceased exposing the interestedness in view of said relationship, the Trial Court has completely gone wrong in accepting the version of P.W.3 to fasten the criminal liability upon the accused. He submitted that the evidence of P.W.3 is not of unimpeachable character and thus being not totally free from doubt/suspicion, it is wholly unsafe to be relied upon. He further JCRLA No.49 of 2017 Page 5 of 9 {{ 6 }} submitted that in the present case for non-examination of the Investigating Officer from the side of the prosecution, the accused has been highly prejudiced and it has so happened that even the attention of P.W.3 to her previous statement, although had been drawn during her examination in the trial and she has been confronted with it; for non- examination of the I.O. it has not been proved which can just be verified by going through the statement of the P.W.3 recorded under section 161 of Cr.P.C. He, therefore, submitted that the benefit must go to the accused and it ought to be held that the evidence of P.W.3 is unsafe to be relied upon to record a finding of guilt against the accused for committing murder of deceased Samara Oram, the impugned judgment of conviction and order of sentence are liable to be set aside. 10. Learned counsel for the State did not dispute the position that the entire case of the prosecution mostly, revolves round the evidence of P.W.3. According to him, the other witnesses having provided corroboration to the evidence of P.W.3 in some way or other, the Trial Court did commit no mistake in accepting the evidence of P.W.3 and basing upon that sole testimony, the accused has rightly been held guilty of committing murder of Samara Oram. 11. In order to address the above rival submission, in arriving at a conclusion as to whether the accused is liable to be held guilty for committing murder of Samara Oram, let us first of all examine the evidence of P.W.3. She is the sole eye witness to the occurrence as has been projected by the prosecution. At the risk of repetition, it be stated that P.W.3 is the wife of the deceased and the mother of the complainant (P.W.2). It is the evidence of P.W.3 that at the relevant time, her JCRLA No.49 of 2017 Page 6 of 9 {{ 7 }} husband (deceased) was sleeping at the house. She has stated that then she was removing the grass in front of the house. She has further stated that having suddenly heard the sound, she saw the accused assaulting the deceased on his face and saw her husband bleeding. It is also stated that she then sent the information to her son (P.W.2). During cross- examination, she has admitted to have not stated before the police while giving her statement in course of investigation which was recorded under section 161 of Cr.P.C. that she had seen the accused assaulting her husband by an axe. 12. Admittedly, in this case, the Investigating Officer has not come to the witness box as a witness for the prosecution and he being the Investigating Officer who had recorded the statement of P.W.3 during investigation; the defence has not been able to prove that such statement which P.W.3 has given in the Trial was not so made before the Investigating Officer in course of investigation. Even the statement of P.W.3 recorded in course of investigation under section 161 of Cr.P.C. being perused, it is seen that she had simply then stated have seen the accused coming out of her house holding an axe. Thus, in this case for non-examination of the Investigating Officer, the accused has been highly prejudiced as the material contradiction has not directly come to surface. Perusal of the deposition of P.W.3 and her statement in course of investigation, makes it clear that she has made quite sharp and significant improvement by stating that she had seen the accused assaulting the deceased on the head, face etc of the deceased which was not her prior version at the earliest point of time. In such state of affair, the Trial Court is wrong in saying that as because the P.W.3 is a rustic, JCRLA No.49 of 2017 Page 7 of 9 {{ 8 }} tribal woman, such improvement has no adverse impact. She, being the wife of the deceased when is making such a great departure in placing herself as the witness to the occurrence, for the first time in the trial, she cannot be taken to be a wholly reliable witness and her evidence cannot be considered to be unimpeachable character so as to fasten the guilt of the accused as the author of the injuries inflicted upon the deceased. The Trial Court, in our view, is not right in brushing aside all these above features. We also find that the Trial Court committed grave error in accepting the evidence of P.W.3 on a conjoint reading of her deposition in the trial and the statement recorded under section 161 of Cr.p.C.
Decision
hereinabove; We hold that the prosecution has not been able to establish the charges against the accused beyond reasonable doubt, by leading clear, cogent and acceptable evidence. Consequently, the impugned JCRLA No.49 of 2017 Page 8 of 9 {{ 9 }} judgment of conviction and order of sentence are held liable to be set- aside. 14. In the result, the Appeal stands allowed and the judgment of conviction and order of sentence dated 20th, March, 2017 passed by the learned 2nd Additional Sessions Judge, Rourkela, in Sessions Trial No.291/117 of 2013 are hereby set-aside. The Appellant (Accused) be released from custody forthwith if her detention is not required in connection with any other case. Dr.S.K.Panigrahi, J. I Agree. (D. Dash) Judge (Dr.S.K.Panigrahi) Judge Gitanjali JCRLA No.49 of 2017 Page 9 of 9