The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.24 of 2021 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 9th March, 2021 passed by the learned Sessions Judge, Malkangiri, in C.T. 65 of 2015. Dulli Khara …. Appellant ---- -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Ms.B.L.Tripathy (Advocate) For Respondent - Mr.Dillip Kumar Mishra Additional Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 06.07.2023 : Date of Judgment:11.08.2023 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 9th March, 2021 passed by the learned Sessions Judge, Malkangiri, in C.T. 65 of 2015 arising out of G.R. Case No.60 of 2018 corresponding to Chitrakonda P.S. Case No.09 of JCRLA No.24 of 2021 Page 1 of 10 - 2 - 2015 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Malkangiri. The Appellant (accused) thereunder has been convicted for committing the offence under sections 302/201 of the Indian Penal Code, 1860 (for short, 8the IPC9). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for a period of one (1) year for commission of the offence under section 302 of the I.P.C; and to undergo rigorous imprisonment for three (3) years and pay fine of Rs.2,000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment for two (2) months for commission of the offence under section 201 of the IPC with the direction that the substantive sentences would run concurrently. 2. Prosecution Case:- This accused Dulli Khara was living with his wife Dipai Khara and two children in his native village-Manjurlendi. During the year 2014, he had left his native village and shifted with his family to Village-Sanyasiguda where he resided with his family by constructing the house on a piece of land provided by the villagers near the jungle. For some days prior to the occurrence, the accused was suspecting the character of his wife that she had JCRLA No.24 of 2021 Page 2 of 10 - 3 - been pregnant through someone-else and he accused used to assault her wife and was often giving threat to kill her. On 16.02.2015 night, when after taking dinner, all were sleeping in the house, the accused started quarreling with his wife and it as during mid night when their daughter Subarna Khara (deceased) woke up from the sleep and tried to separate her quarreling parents, at that moment, the accused, being highly aggrieved with his daughter Subarna gave an axe blows upon her. Receiving the said blow, Subarna fell down on the floor with cut injuries on her neck and some time thereafter, succumbed to the said injuries. It is further stated that seeing the horrible incident, the wife of the accuse picked up her small child and immediately rushed towards the jungle to save her life and there, she with her child, concealed the presence for the whole night. In the morning, the wife of the accused (P.W.3) returned and narrated the incident before the villagers and the Ward Member and other villagers. After hearing the entire incident from the wife of the accused (P.W.3), they went to the house of the accused and found that the accused had buried the dead body of his daughter on his back yard. The villagers then brought out the dead body of the daughter of the accused from the place where it had been buried and produced the same along with the accused and blood stained axe at the Police Station. The Ward Member (P.W.2) then lodged a written report with the Inspector-in-Charge JCRLA No.24 of 2021 Page 3 of 10 - 4 - (I.I.C.) of Chitrokonda Police Station (P.S). The I.I.C., receiving the
Legal Reasoning
said written report, treated it as the FIR and after registering the case, directed one Sub-Inspector (S.I.) of Police (P.W.13) to take up the investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.13) examined the Informant (P.W.2) and recorded his statement and those of other witnesses under section 161 of the Code of Criminal Procedure, 1973. Having made the spot visit, he prepared the spot map (Ext.13). He then having held inquest over the dead body of the deceased, prepared his report (Ext.8) and sent the dead body of the deceased for post mortem examination by issuing necessary requisition. The accused was then arrested and forwarded in custody to Court. Other incriminating articles were sent for chemical examination through Court. On completion of the investigation, he submitted the Final Form placing the accused to face the Trial for commission of the offence under section 302/201 of the IPC. 4. Learned S.D.J.M., Malkangiri, on receipt of the Final Form, took cognizance of 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 for the aforesaid offence against the accused. JCRLA No.24 of 2021 Page 4 of 10 - 5 - 5. The prosecution, in support of its case, has examined in total fourteen (14) witnesses during Trial. As already stated, P.W.2 is the informant, who lodged the FIR (Ext.4), P.W.3 is the wife of the accused and mother of the deceased and P.Ws.7, 8, 9, 10 & 11 are the co-villagers of the accused. The Doctor, who had conducted the post mortem examination over the dead body of the deceased has been examined as P.W.4 whereas the I.O. of the case come to the witness box as P.W.13. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 16. Out of those, important are the FIR (Ext.4); inquest report (Ext.8); post mortem report (Ext.6) as also the Chemical Examiner9s report (Ext.16). 6. The plea of the accused is that of complete denial and false implication. No evidence has, however, been tendered from the side of the accused in support of his evidence. 7. The Trial Court, upon examination of the evidence of the Doctor (P.W.4), who had conducted the autopsy over the dead body of the deceased, who is the daughter of the accused and his report (Ext.6) as well as the other evidences, has arrived at a conclusion that Subarna (deceased) met a homicidal death. In fact JCRLA No.24 of 2021 Page 5 of 10 - 6 - this aspect of the case was not under challenge before the Trial Court and that has also been the position before us. The Doctor, during post mortem examination, has found five cut injuries on different parts of the body of the deceased. The size and seat of injuries are:- (a) 3”X1”X3” on the root of left side of the neck; (b) 3”X1”X3” on left clavicle with fracture of left clavicle, which too had been fractured; (c) 1”X2cmX2” upon medial aspect of right thigh 4” above knee; (d) 4”X2”X1” on medial aspect of left knee and left let; and (e) 2”X1”X1” on medial aspect of left leg 2” above to medial malleolus of left foot. As per the evidence of the Doctor (P.W.4), all such injuries are ante mortem in nature and the death was on account of hypovolemic shock due to haemorrhage from multiple cut injuries upon her body. It has also been stated that the seized axe, which he had examined, the injures found on the body of the deceased were possible. He has proved his report to that effect vide Ext.7. The I.O., who held the inquest over the dead body of the deceased as well as series of witnesses, have also noted the injures as noted in the inquest report (Ext.8). P.W.3 too has stated to have seen the deceased with such cut injuries of over her body. When all these evidence have remained unchallenged, we find ourselves wholly in agreement with the finding of the Trial Court as regards the nature of death of Subarna to be homicidal. JCRLA No.24 of 2021 Page 6 of 10 - 7 -
Legal Reasoning
8. Ms.B.L.Tripathy, learned counsel for the Appellant (accused) submitted that the entire case of the prosecution is based upon the evidence of P.W.3, which is said to be receiving corroboration from the evidence of the Doctor (P.W.4) and P.Ws.2, 3, 7, 8, 9 and 11. He submitted that the Trial Court has not properly analyzed the evidence of P.W.3, the wife of the accused, who is the mother of the deceased with whom the accused was not pulling on well and has committed grave error in accepting her version as gospel truth and by ignoring the discrepancies and other infirmities. He submitted that the Trial Court ought not to have placed implicit reliance upon the evidence of P.W.3 in fastening the guilt of the accused. 9. Mr.D.K.Mishra, learned Additional Government Advocate for the Respondent-State, while supporting the finding of guilt against the accused, as has been rendered by the Trial Court, contended that the evidence of P.W.3, being analyzed in great detail, the Trial Court has rightly accepted the same as that also receives corroboration from other independent witnesses as to her immediate disclosure before them regarding the act of the accused leading to the death of his minor daughter. 10. 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 JCRLA No.24 of 2021 Page 7 of 10 - 8 - from the side of the prosecution (P.Ws.1 to 14) and have perused the documents admitted in evidence marked as Exts.1 to 16. 11. The solitary witness to the occurrence, as has been projected by the prosecution, is P.W.3, who is the wife of the accused and she has stated as to how her daughter aged about 11 years, was assaulted to death by her husband (accused). It is stated by her that she had slept in the house after taking dinner when the accused came and pointing suspicion as to her character quarreled with her. As per her evidence, during that time, their minor daughter (deceased) woke up and she tried to subside the matter. It is further stated that the accused, in view of such intervention of minor daughter (deceased), dealt blows by means of an axe, which struck of the neck of their daughter and leg resulting bleeding injuries causing her death. It has been further stated that out of fear, she left the house along with her child towards jungle and on the next morning, she informed the matter to P.W.2 and other villagers, who then came and recovered the dead body, which had been concealed by the accused by putting under lumps of earth. She has further stated that the accused, being asked by P.W.2 and others, confessed to have caused the death of his daughter. He then gave recovery of the Tangia. The witness, during cross-examination, although has been thrown with a suggestion that she had not stated before the police during JCRLA No.24 of 2021 Page 8 of 10 - 9 - her earlier examination in course of investigation that the accused killed their daughter by means of a Tangia, that, however, has not been proved through the I.O. (P.W.13). Therefore, the evidence of this witness remains wholly unimpeached. The evidence of P.W.3 also receives corroboration from P.W.2 that P.W.3 had been to him and disclosed that the accused had killed their daughter. This P.W.2 has further stated that hearing from P.W.3, he and other villagers went to the spot and caught hold of the accused, who being asked, confessed to have killed his daughter and kept the dead body under heap of earth. He has also stated that the accused then gave recovery of the Tangia, which was stained with blood and the dead body was also recovered. This P.W.2, in his FIR (Ext.4) had stated all such facts and his evidence thus receive corroboration from the FIR too. The evidence of P.W.7 is also the effect that P.W.3 had informed about the incident and the role of the accused before him. This has also been the evidence of P.Ws.8, 9 & 10. No such material has been elicited from any of these witnesses to entertain any doubt on their testimony and that apart, nothing is available on record to even remotely suggest that they had any axe to grind against the accused in falsely roofing him in the commission of the crime. JCRLA No.24 of 2021 Page 9 of 10 - 10 - On a conspectus of analysis of the evidence hereinabove, this Court finds that the prosecution has proved its case against the accused as having committed the murder of Subarna beyond reasonable doubt 13.
Decision
In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 9th March, 2021 passed by the learned Sessions Judge, Malkangiri, in C.T. 65 of 2015. are hereby confirmed. Dr.S.K. Panigrahi, J. I Agree. (D. Dash) Judge (Dr.S.K. Panigrahi) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 17-Aug-2023 16:49:27 JCRLA No.24 of 2021 Page 10 of 10