The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.22 of 2011 : (A) AND CRLA No.63 of 2011 : (B) From the judgment of conviction and the order of sentence dated 30th November, 2011 passed by the learned Additional Sessions Judge, Nabarangpur camp at Umerkote in C.T. No.42 of 2010. Janakaya Gond (In both the Appeals) ---- -versus- …. Appellant State of Odisha (In both the Appeals) …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr.B. Nayak, Advocate (In JCRLA No.22 of 2011) Mr. N. Panda, Advocate (In CRLA No.63 of 2011) For Respondent - Mr.S.K. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 20.12.2023 : Date of Judgment :08.01.2024 D.Dash,J. The Appeal as at (A) had been filed by the Appellant from inside the jail and subsequently, the Appeal as at (B) has been JCRLA No.22/2011 & CRLA No.63/2011 Page 1 of 7 - 2 - filed by the Appellant through his private counsel. Therefore, both the Appeals have been tagged for hearing and disposal by this judgment. The Appellant, by filing these Appeals, has called in question the judgment of conviction and the order of sentence dated 30th November, 2010 passed by the learned Additional Sessions Judge, Nabarangpur camp at Umerkote in C.T. No.42 of 2010 arising out of G.R. Case No.580 of 2009 corresponding to Umerkote P.S. Case No.156 of 2009 of the Court of the learned Judicial Magistrate First Class (J.M.F.C.),Umerkote. The Appellant (accused) thereunder has been convicted for committing the offence under sections 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.20,000/- (Rupees Twenty Thousand) in default to undergo rigorous imprisonment for two (2) years for commission of the said offence. 2. Prosecution Case:- On 09.11.2009, one Kartika Ganda (Informant-P.W.2), arriving at his house, when inquired the whereabouts of the missing child, the accused confessed before him to have thrown their daughter-Sushila into the well. On 29.11.2009 around 9.30 p.m., he lodged a written report having come to know about the happenings in the incident from none other than his wife. Page 2 of 7 JCRLA No.22/2011 & CRLA No.63/2011 - 3 - On receiving the written report from the Informant (P.W.2), the Inspector-in-Charge (IIC) of Umerkote Police Station (P.W.7) immediately registered P.S. Case No.156 of 2009 and took up investigation. 3. In course of investigation, the Investigating Officer (P.W.7) examined the Informant (P.W.2) and other witnesses and recorded their statements under section 161 of the Cr.P.C. He, having visited the spot, prepared the spot map. He (P.W.7) held inquest over the dead body of the deceased and prepared the report to that effect (Ext.4) in presence of the witnesses. The I.O. then sent the dead body for post mortem examination by issuing necessary requisition. He then seized the wearing apparels of the deceased under seizure list (Ext.5). The accused, being apprehended, was forwarded in custody to Court. On completion of the investigation, the Investigating Officer (P.W.7), submitted the final form placing the accused for the trial for commission of offence under section 302 IPC. 4. Learned J.M.F.C. Umerkote, on receipt of the above report, having taken cognizance of the offence, after observing all the formalities, committed the case to the Court of Sessions for Trial. That is how the trial commenced against this accused by framing the charge for the above offence. JCRLA No.22/2011 & CRLA No.63/2011 Page 3 of 7 - 4 - 5. The prosecution, in support of its case, has examined in total seven (7) witnesses during Trial. As already stated, the informant, who happens to be father of the deceased, is P.W.2 whereas P.W.5 is the father of the Informant. P.Ws.3 & 4 are the independent eye witnesses to the occurrence. P.W.6 is the Sarpanch. The Doctor, who had conducted the autopsy over the dead body of the deceased, has been examined as P.W.1. The I.O. of the case, at the end, has come to the witness box as P.W.7. 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 5. Out of those; important are the FIR (Ext.3); inquest report (Ext.4); the post mortem report (Ext.1) and the seizure list (Ext.5). 6. The accused, having taken the plea of complete denial and false implication has, however, not tendered any evidence in support of the same. 7. Learned counsel for the Appellant (accused) submitted that although absolutely no evidence surfaces on record to connect the accused with the said crime, the Trial Court has found the accused guilty for committing the offence of murder of her daughter, namely, Susila. He submitted that there is no direct evidence to connect the accused with the crime and when the entire case of the prosecution is based on the extra-judicial JCRLA No.22/2011 & CRLA No.63/2011 Page 4 of 7 - 5 - confession said to have been made by the accused before her husband (P.W.2), said P.W.2 during trial not stated anything about the said confession made before him by the accused. He, therefore, submitted that there being no other circumstantial evidence except to say that the deceased was the daughter of the accused and they were residing under one roof even though the recovery of the dead body has been made from the well, the chain of events cannot be said to be complete in every respect ruling out all such hypothesis other than the guilt of the accused. 8. Mr.S.K.Nayak, learned Additional Government Advocate for the Respondent-State, while supporting the finding of guilt of the accused, as has been returned by the Trial Court, submitted that the evidence of all the above prosecution witnesses are wholly consistent and there is no variance on the material part as to the incident. According to him, the accused having not explained as to how her daughter died; the conviction has to sustain. 9. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.W.1 to P.W.7) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.5. JCRLA No.22/2011 & CRLA No.63/2011 Page 5 of 7 - 6 - 10. It is not in dispute that the case of the prosecution is not based on direct evidence. The star witness of the prosecution is P.W.2 who is none other than the husband of the accused and he is the Informant who had lodged the F.I.R. Perusal of his deposition of P.W.2 reveals that during trial, he (P.W.2) has not supported the version in the F.I.R. (Ext.3) and he has simply stated to have detected her two daughters to be floating in the water. He is absolutely silent as to have ever talked with the accused at any point of time after arrival at home from work place. Although the witness has been cross-examined by the prosecution, with the permission of the court, we find no such incriminating materials to have been elicited from his lips to point out finger of guilt at the accused. P.W.3 is the father of P.W.2. He has also not stated anything implicating the accused and that is also the version of the other witnesses examined from the side of the prosecution. P.W.4 who had been to the house of the accused also does not implicate the accused in any manner. None have even stated about the conduct of the accused during then. P.W.5, the mother-in-law of the accused, who according to P.W.2 was present when he arrived at home; she has not breathed a word as against this accused. With such evidence on record, even though we have no such material to differ with the conclusion of the Trial Court that the daughters of the accused and P.W.2 has met homidical death, we, however, JCRLA No.22/2011 & CRLA No.63/2011 Page 6 of 7 - 7 - are not inclined to affirm the finding of the Trial Court that the prosecution has established the charge against the accused by leading, clear, cogent and acceptable evidence beyond reasonable doubt. 11. In the result, the Appeals stand allowed. The judgment of conviction and the order of sentence dated 30th November, 2011 passed by the learned Additional Sessions Judge, Nabarangpur camp at Umerkote in C.T. No.42 of 2010, are hereby set aside. Since the accused, namely, Janakaya Gond is in custody, she be set at liberty forthwith, if her detention is not wanted in any other case. G.Satapathy, J. I Agree. (D. Dash) Judge (G.Satapathy) Judge Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 09-Jan-2024 14:36:20 JCRLA No.22/2011 & CRLA No.63/2011 Page 7 of 7