MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.80 of 2023 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 5th January, 2022 passed by the learned Additional Sessions Judge, Athmallik in C.T. (S) No.46 of 2018. Dukhishyama Baghar ---- -versus- …. Appellant State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode) For Appellant - Mr.Jitendra Samantaray, (Advocate as Amicus Curiae) For Respondent - Mr.S.K. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing : 06.03.2024 : Date of Judgment : 15.04.2024 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 5th January, 2022 passed by the learned Additional
Legal Reasoning
Sessions Judge, Athmallik in C.T. (S) No.46 of 2018 arising out of G.R. Case No.282 of 2018 corresponding to Kishorenagar P.S. JCRLA No.80 of 2023 Page 1 of 11 Case No.58 of 2018 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Athmallik. 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.50,000/-/- (Rupees Fifty Thousand) in default to undergo rigorous imprisonment for two (2) years for commission of the said offence. 2. Prosecution Case:- On 15.06.2018, one China Baghar (Informant-P.W.21) lodged a written report with the Inspector-in-Charge (I.I.C.) of Kishorenagar Police Station stating therein that on the previous night around 09.00 p.m., her husband, namely, Dukhishyam Baghar (accused) returned home and started quarrelling with his parents, namely, Karuna Baghar & Chamap Baghar and tried to assault. The parent of the accused, in order to save the life of China (Informant-P.W.21) put her in a room with her daughter, namely, Babli Baghar (P.W.7) and locked from inside. The accused thus could not assault her. But being aggrieved, he assaulted his parents to death. After he did them to death, he opened the lock of the room inside which China (Informant- P.W.21) was there and also attempted to assault her by hammer. She somehow escaped and saved herself. JCRLA No.80 of 2023 Page 2 of 11 The report to the above effect, being received by the I.I.C. , Kishorenagar, he treated the same as FIR (Ext.3) and upon registration of the criminal case, took the investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.23) examined the Informant (P.W.23) & other witnesses, recorded their statements under section 161 of Cr.P.C. and issued requisition to District Forensic Science Laboratory, Dhenkanal for ascertaining some clues. She (P.W.23) held the inquest over the dead body of the deceased and prepared the report (Ext.10) and sent the same for post mortem examination by issuing necessary requisition. She (P.W.23) seized the hammer under seizure list (Ext.4). She (P.W.23) seized the blood stained and sample earth near the dead body of Karuna under the seizure list (Ext.5). The seized incriminating articles were sent for chemical examination through Court. On 22.06.2017, P.W.9 handed over the charge of the investigation to the Sub-Inspector (S.I.) of Police (P.W.10), who submitted the Final Form placing this accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Athamallik, 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 the accused. JCRLA No.80 of 2023 Page 3 of 11 5. The prosecution, in support of its case, has examined in total twenty-three (23) witnesses during Trial. As already stated, the informant, who happens to be the wife of the accuse is P.W.21. P.W.10 is the scribe of the FIR (Ext.3). P.Ws.1 to 6 & 9, 11, 14, 22 are said to be independent witnesses to the occurrence. P.Ws.7 & 8 are said to be the eye witnesses, who are the daughter and son of the Informant and accused respectively. P.Ws.12, 16, 18, 19, 20 said to be the witnesses to the seizure. The Doctor, who held the autopsy over the dead bodies of the deceased person is P.W.17. The I.O. of the case, at the end, has come to the witness box as P.W.23. 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 26. Out of those; important are the FIR (Ext.3); inquest report (Ext.11); and post mortem report (Ext.15). The chemical examiner’s report had been admitted in evidence and marked Ext.26. 6. The accused, having taken the plea of complete denial and false implication, has, however, not tendered any evidence in support of the same.
Legal Reasoning
7. Mr.J. Samantaray, learned counsel for the Appellant (accused) submitted that the Trial Court has relied upon the JCRLA No.80 of 2023 Page 4 of 11 evidence of P.Ws.7, 8 and 21 to hold that the accused is guilty of committing the murder of his parents. According to him, careful scrutiny of the evidence of all the above three witnesses would lead to a conclusion that the version, which they have presented during trial is not believable and their evidence as to how the incident began and the role played by the accused greatly differ from one another. He, therefore, submitted that relying on the above evidence, the Trial Court has gone wrong in holding the prosecution to have established the charge against the accused. Therefore, he urged that the impugned judgment of conviction and order of sentence are liable to be set aside. 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 there is absolutely no material to even remotely suggest that P.Ws.7 & 8, who are the daughter and son of the accused and the Informant (P.W.21), who is the wife of the accused, had any such reason to falsely implicate the accused by screening the offender, who has caused the death of the parents of the accused. He further submitted that all these three witness have deposed about the occurrence in a very natural manner and despite cross- examination, no such material has surfaced to raise any doubt as to their presence at the relevant time. In support of the same, he has invited our attention to the depositions of P.Ws.7, 8 & 21. It JCRLA No.80 of 2023 Page 5 of 11 was submitted that all the three witnesses have stated the same role to have been played by the accused in the entire incident and, therefore, basing upon their evidence, the judgment of conviction and sentence, which are impugned in this Appeal, are not liable to be interfered with. 9. 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 from the side of the prosecution (P.Ws.1 to 23) and have perused the documents admitted in evidence marked as Exts.1 to 26. 10. It is not in dispute that the death of Karuna and Champa were homicidal in nature. The Doctor (P.W.17), who had conducted the post mortem examination over the dead body of Karuna, had found five lacerated injuries over posterior part of the head, left side of the head, over occipital protuberance, over head 2” anterior to occipital protuberance; and over left side of head 1” lateral to mid line and 3” above left eye bro with one abrasion over side of face. He (P.W.17) has further stated that all the injuries might have been caused by hard and blunt objects and are ante mortem in nature. On dissection of the dead body of Karuna, he (P.W.17) found depressed fracture of occipital bone and left temporal bone with comminuted fracture of both parietal bones having formation of intra cebebral haemorrhage. JCRLA No.80 of 2023 Page 6 of 11 While conducting the autopsy over the dead body of Champa, the Doctor (P.W.17) had found four lacerated injuries over right side of forehead ½” lateral to mid line and just above right eye bro, over right tragus; over right side head 3” above right mastoid process and 3” lateral to mid line; and over posterior part of head with one abrasion over forehead in the mid line ½’’ above roof of house. He has stated that all the injuries found on the dead body of Champa might have been caused by hard and blunt object and are ante mortem in nature. On dissection of the dead body of Champa, the Doctor (P.W.17) found depressed fracture of right temporal bone and occipital bone with formation of intra cerebral haemorrhage. The cause of death of the deceased persons was found to be due to intra cerebral haemorrhage due to traumatic head injury caused by the impact with hard and blunt objects leading to coma and death. The evidence of the I.O. (P.W.23), who had held inquest over the dead bodies of the deceased, is to the effect that he had seen such injuries on the body of the deceased persons and had reflected in the inquest report (Ext.10). Other witnesses have also stated to have seen the deceased with all these injuries. Such evidence on record when have not been questioned during the trial, we find absolutely no reason to differ with the conclusion JCRLA No.80 of 2023 Page 7 of 11 that Karauna & Champa met a homicidal death, as has been held by the Trial Court. 11. The wife of the accused is the Informant in the present case, who has been examined as P.W.21. She, in her FIR (Ext.3), has narrated that the accused, having returned home, started hurling abusive words at the inmates of the house and then he when attempted to assault her, her parent-in-laws, kept her and her two daughters in a room and locked it from outside. The accused when could not assault the Informant (P.W.21), he then bringing a hammer (M.O.I) from the house went on brutally assaulting his father and mother, who fell down on the ground and thereafter, he again breaking upon the lock, assaulted the Informant (P.W.21) as also his daughter (P.W.7). During his evidence, the Informant (P.W.21) has stated all these facts, as narrated in the FIR (Ext.3). Her evidence is that the accused came, being drunk, started quarreling with her and her mother-in-law and her mother-in-law (deceased), out of fear, locked her and her son in a room and locked it from outside. She has further stated that out the accused, being enraged, then assaulted his mother (deceased) by hammer and when his father (deceased) protested, he too was assaulted by the accused by means of that hammer. It is also her evidence that thereafter the accused broke open the lock of the room and entering into the room, attempted to assault her (P.W.21) by that very hammer, which was snatched away by her JCRLA No.80 of 2023 Page 8 of 11 and thrown outside. This P.W.21, having been cross-examined, we find absolutely no such material to have been elicited to discard her version as regards the happenings in the incident as also the role of the accused right from the beginning till the end. Although this witness states to have been there inside the room when the accused went to assault his parents; the evidence of this witness is quite believable that when she came out of the room, she had seen her parent-in-laws lying dead and nothing is there in the evidence that anyone-else was present at the place at that time. The son of the accused (P.W.7), who was then a boy of nine years, has vividly stated the incident. It is his evidence that at the relevant time, he was sitting with her grandmother on a cot and when the accused abused his grandmother, his grandmother locked his mother (Informant-P.W.21) in a room and then it is stated that the accused, bringing a hammer, assaulted on the head of his grandmother and then assaulted his grandfather and thereafter, having entered into the room, dragged her mother (Informant-P.W.21) from the room when he with her sister (P.W.8) went to the house of one Liza. He has stated that his parents and grand-parents (deceased persons) were living in one house and then no outsider was present. He has denied the suggestion of the defence that his father (accused) had not assaulted his grand parents (deceased persons). JCRLA No.80 of 2023 Page 9 of 11 P.W.8 is the daughter of the accused and the Informant. As per the evidence of P.W.7, she was also present at the place. This witness (P.W.7) was aged about 11 years. Both P.Ws.7 & 8, being tested by the Trial Court, their evidence have been recorded on oath as it was found that they understood the implication of the oath. P.W.8 has stated that her father (accused) assaulted her grandparents and both of them died at the spot. He has also stated that there was quarrel prior to the assault. The evidence of P.Ws.7 & 8, being carefully gone through, we find absolutely no reason for them to falsely implicate their father by screening somebody else. We also do not find any such material to have elicited, which is even remotely suggestive of the fact that they had been tutored. The evidence of P.Ws.7, 8 & 21 are consistent and run at par with one another. With such evidence on record falling from the lips of P.Ws.7, 8 & 21, who are none other than son, daughter and wife of the accused and as the same finds corroboration from the evidence of the Doctor, who conducted the post mortem examination over the dead bodies of the deceased persons and has stated about the injures, which he had noticed as also the possibilities of those being caused by Hammer (M.O.I), which he had the occasion to examine, in our considered view, the JCRLA No.80 of 2023 Page 10 of 11 judgment of conviction and order of sentence must receive the seal of confirmation. 12.
Decision
In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 5th January, 2022 passed by the learned Additional Sessions Judge, Athmallik in C.T. (S) No.46 of 2018, are hereby confirmed. V.Narasingh, J. I Agree. (D. Dash) Judge (V. Narasingh) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 16-Apr-2024 14:39:42 JCRLA No.80 of 2023 Page 11 of 11