The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.97 of 2018 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 27th August, 2018 passed by the learned Additional Sessions Judge-cum-Special Judge, Jeypore in C.T. Case No.46 of 2014. Kusha Gadaba …. Appellant ---- -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. Chittaranjan Sahoo, Mr. Suryakanta Das Mohapatra, (Advocates) For Respondent - Mr.S.K. Nayak, Addl. Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing :13.07.2023 : : Date of Judgment: 24.07.2023 D.Dash,J. The Appellant, by filing this Appeal, from inside the jail, has assailed the judgment of conviction and order of sentence dated 27.08.2018 passed by the learned Additional Sessions Judge-cum-
Facts
Special Judge, Jeypore in C.T. No.46 of 2014 arising out of G.R. Case No.16 of 2014 corresponding to Kotpad P.S. Case No.15 of 2014 of the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Kotpad. JCRLA No.97 of 2018 Page 1 of 9 {{ 2 }} The Appellant (accused) having faced the trial being charged for commission of offence under sections 302/307/324/376(1) of the Indian Penal Code, 1860 (for short, ‘the IPC’) has been finally convicted for committing the offence under section 302/307, I.P.C. Accordingly, he has been sentenced to undergo imprisonment for life with fine of Rs.20,000/- (Rupees Twenty Thousand) in default to undergo rigorous imprisonment for a period of six months for the offence under section 302 of the I.P.C.; and undergo rigorous imprisonment for seven years and fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for three months for commission of the offence under section 307 of the I.P.C. with a direction that the substantive sentences would run concurrently and in the event of realization of fine, a sum of Rs.20,000/- (Rupees Twenty Thousand) be paid to the wife of the deceased (P.W.20) as compensation. 2. On 31.01.2014, one Gramrakhi under Kotpad Police Station, namely, Trinath Bisoi (P.W.3) presented a written report (Ext.2) with the Inspector-in-Charge (I.I.C.) of the P.S. He thereby informed that when he was going round, near the village Chhak, it was informed to him that around half an hour before the accused committed the murder of one Mangaraj Bindhani and assaulted his wife in order to kill her by means of a sharp edged weapon. He further stated in the written report that getting this information, he had rushed to the spot and found the dead body of Mangaraj was lying in front of the house of the accused in a poll of blood facing upward. The wife of Mangaraj (deceased) was also lying there in a senseless condition and she had sustained bleeding injuries. This Trinath (P.W.3) then asserted from the villagers that the JCRLA No.97 of 2018 Page 2 of 9 {{ 3 }} deceased and his wife (P.W.20) had come to the house of the accused and there ensued a quarrel for some reason between the deceased and his wife and during then the accused assaulted Mangaraj by a knife and his wife was then too assaulted. The I.I.C. receiving the above written report from the Gramarakhi (Informant-P.W.3) treated the same as F.I.R. and after registration of the case, took up the investigation. The Investigating Officer (I.O.-P.W.22) in course of investigation examined the Informant (P.W.3) and then proceeded to the Community Health Centre (C.H.C.), Kotpad where the injured-wife of Mangaraj had been taken for treatment. He then examined some other witnesses there at the spot on arrival. He conducted inquest over the dead body of the deceased and prepared the report (Ext.1) to that effect. He also recorded the statement of the injured and wife of the deceased (P.W.20). The dead body of the deceased was then sent for medical examination. The accused being arrested, it is said that he stated to have kept a small Kati in his house and that he would give recovery if taken. So, the statement of the accused was recorded by the I.O. (P.W.22), which has been admitted in evidence and marked Ext.3 and the accused then is said to have led the I.O. (P.W.22) and others to his house in giving recovery of that Kati, which was seized under seizure list (Ext.4). Thereafter, the accused was forwarded in custody to court. The incriminating articles which had been seized in course of investigation were sent for chemical examination through Court. On 08.03.2014 consequent upon the transfer of I.O. (P.W.22), he handed over the charge of the investigation to one Sub-Inspector of Police (S.I.), who on completion of investigation JCRLA No.97 of 2018 Page 3 of 9 {{ 4 }} submitted the Final form placing the accused to face the trial for commission of offence under sections 302/307/324/376(1) of the I.P.C. 3. Learned J.M.F.C., Kotpad on receipt of the above report having taken cognizance of the offence after observing formalities committed the case to the Court of Sessions for trial. That is how the trial commenced after framing of the charge for the above offence. 4. In the Trial, the prosecution has examined in total 22 (twenty- two) witnesses. Out of whom, as already stated, the Informant is P.W.3. P.W.1, P.W.2, P.W.5, P.W.7, P.W.10, P.W.11 and P.W.16 are the co- villagers. The wife of the deceased, who has also been injured in the incident has been examined as P.W.20. The Doctor, who had examined P.W.20 has come to the witness box as P.W.17 and P.W.13 is the Doctor who had conducted Post Mortem Examination over the dead body of the deceased. The I.O. who had done major part of the investigation has come at the end as P.W.22. The prosecution besides leading the evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Ext.1 to 24. Out of those, the important are F.I.R. (Ext.2), the inquest report (Ext.1), the Post Mortem Examination Report (Ext.6), injury report of P.W.20, i.e., Ext.10 and the spot map Ext.15. 5. The accused in support of his defence of denial and false implication has examined himself as D.W.1 with the permission of the court. JCRLA No.97 of 2018 Page 4 of 9 {{ 5 }} 6. Learned counsel for the Appellant (accused) submitted that the Trial Court without properly analyzing the evidence of P.W.20 who is the wife of the deceased and an interested witness has simply been swayed away by the fact that she having sustained injuries in the incident has to be believed as to what she stated about the role played and act done by this accused. He further submitted that the Trial Court ought not to have relied upon the solitary testimony of P.W.20 as the same is not of starling quality in holding that the accused has intentionally caused the death of Mangarja Bindhani and attempted to commit the murder of P.w.20, the wife of the deceased-Mangaraj. He submitted that the Trial Court when has said that the evidence of P.W.1,P.W.2, P.W.3.P.W.7, P.W.10 and P.W.11 provide corroboration to the evidence of P.W.20, that is not the actual state of affair. He, therefore, submitted that the finding of the Trial Court holding this accused to be guilty of commission of offence under section 302 of the IPC in intentionally causing the death of Mangaraj and under section 307 of the IPC in attempting to commit the murder of the wife of Mangaraj (P.W.20) is not based on sound appreciation of evidence. 7. Learned counsel for the Respondent-State submitted that the evidence of P.W.20, who happens to be the wife of the deceased is wholly reliable and she being the sole eye-witness to the occurrence when has narrated the details of the happenings right from the beginning till she went unconscious; her evidence cannot be thrown on the ground of her relationship with the deceased as she herself being injured and thus victim of the said incident. He further submitted that the overwhelming evidence coming from the lips of the villagers, who have JCRLA No.97 of 2018 Page 5 of 9 {{ 6 }} arrived at the scene of occurrence immediately after the accused completed his role in the incident and did perform his act, which provide full corroboration to the evidence of P.W.1 and when that also receives corroboration from the evidence of the Doctor (P.W.13) who had conducted post mortem examination over the dead body of the deceased and the other Doctor, P.W.17, who had examined P.W.20, the Trial Court did commit no mistake in convicting the accused on both the counts. 8. Keeping in view the submissions made, We have carefully read the impugned judgment passed by the Trial Court. We have also travelled through the depositions of the witnesses (P.W.1 to P.W.22) and have perused the documents such as Ext.1 to Ext.24. 9. The Doctor, who had conducted the post mortem examination over the dead body of the deceased-Mangaraj has deposed as P.W.13. He has noticed a stab wound piercing the chest wall towards the left of sternum at fifth inter coastal-space measuring 1.5 cm X 0.05 cm in length and breadth, passing deep thorough the anterior aspect of left ventricle punctured, completely resulting in a large hematoma over the pericardium measuring 8 cm in diameter. He too had noticed a cut wound in the right side of abdominal wall right to the umbilicus of about 6 cm. measuring 3 cm. X 0.05 cm. horizontally place. He has also noticed on dissection, the blood clot, measuring about 8 cm in diameter over the pecicardium and blood oozing out of the anterior wall of heart and cut wound on right side of the abdominal wall 6 cm away from the umbilicus. As per his evidence all such injuries are ante mortem in nature. The seat of the injuries, their dimension on being simply seen would reveal their nature and gravity. It JCRLA No.97 of 2018 Page 6 of 9 {{ 7 }} has been the evidence of P.W.13 that all such injuries are ante mortem in nature and death was on account of shock and haemorrhage resulting of fatal injury to the pericardium, epicardium and myocardium of heart. This P.W.13, who had the occasion to examine the Kati which was sent to him by P.W.22 for examination has said that the injuries are possible by means of a Kati. Practically the evidence of this Doctor (P.W.13) has not faced any challenge. He has noted the details as to what he saw during the post mortem examination in his report under Ext.6. The subsequent opinion sought for, has been proved through him and marked Ext.7. Thus the finding of the Trial Court that Mangaraj met homicidal death is wholly defensable. Coming to the injuries sustained by the wife of the deceased, i.e.,
Legal Reasoning
P.W.20, we find that she had been examined by the Doctor (P.W.17) who had noticed five lacerated wounds on the breasts below the left scapula, ventral side of right elbow joint and dorsal aspect of right forearm. It is stated that such injuries are simple in nature and might have been caused by sharp cutting weapon. The report given by him is Ext.10. All these injuries certainly cannot be said to have been self-inflicted or arisen from any accident. 10. Having found as above, now the point stands for determination as to how far the prosecution has established the fact that it is the accused who is the author of the injuries upon the deceased as well as his wife (P.W.20) Let us first of all proceed for examination of the evidence of P.W.20. She has stated that on that day, she with her husband-Mangaraj had been to the village Ravanaguda, which is the village of the accused. They travelled by train and getting down at Kusumi Railway Station, they Page 7 of 9 JCRLA No.97 of 2018 {{ 8 }} went near the house of one Brahmin fellow where the accused was then working. She has stated that having met the accused, they all (three) went to the house of the accused and she stayed there whereas her husband and the accused went to take drink. It has been further stated by P.W.20 that after sometime the accused came alone and then he made her naked and raped her against her will. It is also stated that the accused committed the rape despite protest. The door of the house since was then opened, her husband came and protested. Her evidence is that then the accused picked up the knife and stabbed on the left side chest of her husband, he also stabbed near the breast of this witness as also on her right hand, chest and back. Although it has been suggested to this witness that earlier when she had given her statement before the I.O. (P.W.22), in course of investigation, she had stated that she, her husband and the accused on the way had consumed liquor, which she had denied; we find that it has not been proved through the I.O. (P.W.22). Therefore, the same is of no worth. When further suggestion has been given that she had stated before the I.O. (P.W.22) during investigation that there was altercation between herself, her husband and the accused for about an hour, which she had denied that too has not been proved through the I.O. (P.W.22), that is of zero value and not at all to be taken cognizance of. By going through the evidence of this witness P.W.20, the injured wife of the deceased, we find no such material to have surfaced therein to raise slightest doubt on her testimony when we find her to have deposed in a natural manner. In addition to this, in our opinion the solitary testimony of P.W.20 derives full support from the evidence of the two Doctors (P.W.13 and 17) which in our considered view is enough to attribute the authorship of injuries upon the deceased and this P.W.20 to this accused. Page 8 of 9 JCRLA No.97 of 2018 {{ 9 }} Moreover, the evidence of P.W.1 is to the effect that the accused had been restrained by the villagers, which he had seen and that has also been stated by P.W.2. P.W.3 has further stated that having gone to the house of the accused, he had seen Mangaraj lying dead with the pleading injury on his chest and P.W.20 lying there in an injured condition with injuries on her chest. P.W.10 has further stated that the accused was seen holding a kati on his hand and standing near the dead body which was lying just in front of the house of the accused. That has also been the evidence of P.W.11. The defence has not at all been able to shake their evidence in any manner. On a conspectus of discussion of evidence as hereinabove, we are of the view that the finding of guilt recorded by the Trial Court against the accused for commission of the offence under section 302/307 of the IPC is well in order and the accused has rightly been convicted and sentenced thereunder. 11. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 27.08.2018 passed by the learned Additional Sessions Judge-cum-Special Judge, Jeypore in C.T. Case No. 46 of 2014 are hereby confirmed. Dr. S.K. Panigrahi I agree. (D. Dash) Judge. Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Himansu Reason: Authentication Location: OHC Date: 25-Jul-2023 17:34:05 JCRLA No.97 of 2018 (Dr.S.K. Panigrahi) Judge. Page 9 of 9