The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.27 of 2017 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 21st October, 2016 passed by the learned 2nd Additional Sessions Judge, Baripada in S.T. Case No.277 of 2015. Rajani Mukhi …. Appellant ---- State of Orissa -versus- …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.D.R. Mishra, K. Sahoo, A.Mishra, A.K. Nandy, L.Mishra & P.K. Patra (Advocates) For Respondent - Mr.S.K. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 22.01.2024 : Date of Judgment : 29.01.2024 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 21st October, 2016 passed by the learned 2nd Additional Sessions Judge, Baripada in S.T. Case No.277 of 2015 Page 1 of 9 JCRLA No.27 of 2017 - 2 - arising out of G.R. Case No.586 of 2015 corresponding to Chandua P.S. Case No.48/2015 (T.C. No.4970/2015) in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Baripada. The Appellant (accused) thereunder has been convicted for committing the offence under section 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.2,000/- (Two Thousand) in default to undergo rigorous imprisonment for three (3) months. 2. Prosecution Case:- On 23.05.2015, one Surendra Mukhi (Informant-P.W.1) presented a written report with the Officer-in-Charge (O.I.C.) of Chandua Police Station stating the facts that 27 to 28 years back, his younger sister, namely, Nina (Sorojini) Mukhi had married the accused. It was further stated that on 22.05.2015 afternoon around 4.00 p.m., he (Informant-P.W.1) heard that this accused, who happens to be his brother-in-law, committed the murder of his wife Nina @ Sorojini (deceased). Receiving the information, when he (Informant-P.W.1) proceeded to the spot, he saw the dead body of his sister (Nina) lying in their house. He then further ascertained that it was accused, who had committed the murder of Nina on 22.05.2015 in between 11.30 p.m to 12.00 a.m. Page 2 of 9 JCRLA No.27 of 2017 - 3 - The O.I.C. (P.W.18), receiving the written report of the
Facts
(Informant-P.W.1), treated the said report as FIR (Ext.1) and upon registration of the case, took up the investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.18) examined the Informant (P.W.1) and other witnesses and recorded their statement under section 161 of the Cr.P.C. After informing the Superintendent of Police, Mayurbhanj for sending the scientific team, the I.O. (P.W.18.) proceeded to the spot and prepared the spot map (Ext.12). From the spot, the I.O. (P.W.18) seized the blood stained earth and sample earth under seizure list (Ext.3. On the same day, the I.O. (P.W.18) held the inquest over the dead body of the deceased and prepared the report to that effect (Ext.2). Thereafter, he (P.W18) sent the dead body for post mortem examination by issuing necessary requisition. The wearing apparels and biological samples of the deceased were seized under seizure list (Ext.4). Thereafter, the I.O. (P.W.18) arrested the accused and it is stated that the accused, while in police custody, gave the statement to have concealed the weapon of offence and stated that if he would be taken to the place, he would give recovery of the same. Pursuant to the statement (Ext.9), the accused is said to have led the I.O. (P.W.18) and other witnesses in giving recovery of the weapons, i.e., a little bent lathi and one iron rod, which were seized under seizure list (Ext.10). Page 3 of 9 JCRLA No.27 of 2017 - 4 - The seized incriminating articles were sent for chemical examination through Court. On completion of the investigation, Final Form was submitted placing the accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Baripada, on receipt of the Final Form, took cognizance of said offence 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 these accused persons. 5. The prosecution, in support of its case, has examined in total eighteen (18) witnesses during Trial. As already stated, the informant who happens to be the brother of the deceased is P.W.1. P.Ws.2 to 8 and P.Ws.13 & 14 are the independent witnesses. P.Ws.9 & 10 are witnesses to the seizure. The Doctor, who had conducted the autopsy over the dead body of the deceased, is P.W.12. The I.O. of the case, at the end, has come to the witness box as P.W.18. 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 18. Out of those; important are the FIR (Ext.1); the spot map (Ext.12); the inquest report (Ext.2); post mortem examination report JCRLA No.27 of 2017 Page 4 of 9 - 5 - (Ext.7); and the statement of the accused (Ext.9). The Chemical Examiner’s report had been admitted in evidence and marked Ext.18. 6. The accused having taken the plea of complete denial and false implication, has, however, not tendered any evidence in support of such plea.
Legal Reasoning
proved through the I.O. (P.W.18) as we find that the prosecution, during examination of the I.O. (P.W.18), has shown that his P.W.6 had stated during investigation that he knew that as the accused has instructed his wife (deceased) to sleep with proper wearing apparels, there was a quarrel between them and in course of a quarrel, the accused brutally assaulted his wife by a curved lathi JCRLA No.27 of 2017 Page 7 of 9 - 8 - and iron rod and caused her death. But, then nothing has been elicited form P.W.6 during such cross-examination by the prosecution so as to come to the aid of the case of the prosecution. P.Ws.7 & 8 have also stated to have not known anything about the occurrence. The evidence of the Doctor (P.W.12), however, as per his findings during the post mortem examination is that the death was homicidal in nature which has remained unchallenged and that also find support from the evidence of the I.O. (P.W.18), the I.O., who had noted those injuries during his inquest in his report (Ext.2). P.W.13 is another witness, has also not implicated the accused in any manner. His evidence is that he came to know from Tiki Majhi that the deceased had been bitten to death by the accused. He, being a witness projected from the side of the prosecution as to the recovery of blood stained wearing apparels, he has not supported the same. 11. A careful conspectus of the evidence on record together with discussions made hereinabove, this Court is unable to hold that the prosecution has proved the circumstances firmly to give rise to any inference unerringly pointing towards the guilt of the accused-appellant and, therefore, he is acquitted of the charge. JCRLA No.27 of 2017 Page 8 of 9 - 9 - 12. In the result, the Appeal is allowed. The judgment of conviction and the order of sentence dated 21st October, 2016 passed by the learned 2nd Additional Sessions Judge, Baripada in S.T. Case No.277 of 2015, are hereby set aside. Since the Appellant, namely, Rajani Mukhi is in custody, he be set at liberty forthwith, if his detention is not wanted in connection with any other case. (D. Dash) Judge G.Satapathy, J. I Agree. (G.Satapathy) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 29-Jan-2024 17:22:54 JCRLA No.27 of 2017 Page 9 of 9
Arguments
7. Mr. D.R.Mishra, learned counsel for the Appellant (accused persons) submitted that the prosecution has not proved the incident through ocular evidence and the case against the accused is based on the circumstantial evidence. He submitted the accepting the version of all the prosecution witnesses as to what they have stated, the same would not establish the complicity of this accused in committing the murder. In support of the same, he has taken us through the evidence of P.Ws.1, 2, 3, 4, 6, 7, 9 & 11. He further submitted that in the present case, even though the prosecution has established that deceased met a homicidal death, there is absolutely no evidence to connect this accused to be the author of the injuries found on the body of Nina leading to her death. He submitted that merely because this accused is the husband of deceased (Nina) and they were residing together in the house without any other foundational facts, being established through clear, cogent and acceptable evidence for the provision JCRLA No.27 of 2017 Page 5 of 9 - 6 - contained in section 106 of the Evidence Act to come into play shifting the burden of proof upon the accused to explain as to how it all happened to his wife, the judgment of conviction and order of sentence are liable to set aside. 8. Mr.P.K. Mohanty, learned Additional Government Advocate for the Respondent-State supported the finding of guilt against this accused, as has been returned by the Trial Court. According to him, the evidence on record reveal that the accused and the deceased, being the husband and wife, were residing together in one house under one roof. He further submitted that the nature of death of deceased, having been proved to be homicidal when the accused is not coming forward to provide any explanation as to how it all happened that his wife received these injuries; the judgment of conviction and order of sentence impugned in this Appeal 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.18) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.18. 10. The Informant in the case has been examined as P.W.1. Admittedly, he had gone to the house of the accused on the next Page 6 of 9 JCRLA No.27 of 2017 - 7 - day of the occurrence and he had just seen the dead body of his sister (Nina) in the said house. He is also not stating that the accused was not seen in the house on his arrival. It is also his evidence that the two daughters of his sister had reached there after the occurrence. P.Ws.2, 3, 4 & 5 are stating nothing about the occurrence. P.W.6 when during his examination in chief, has stated to have not known anything about the case, the prosecution, with the permission of the Court, has cross-examined this witness. But, then we find that the prosecution has remained satisfied by simply drawing the attention of this Court to his previous statements before the I.O. (P.W.18) in course of his investigation. He has denied to have stated during investigation to have proceeded to the village where the house of the accused situates and informed that he had bitten his wife to death as also regarding certain quarrel and then being brutally assaulted by the accused upon his wife causing her death. Although it has been