The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.827 OF 2017 In the matter of an Appeal under section-374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 17th November, 2017 passed by the learned Sessions Judge, Rayagada in Criminal Trial No.24 of 2016. Suna Majhi State of Odisha ---- -versus- …. …. Appellant Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: =============================================== For Appellant - Mr. T.J. Pani, Advocate. For Respondent - Mr.S.N. Das, Additional Standing Counsel. CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY DATE OF HEARING:15.11.2023 :DATE OF JUDGMENT:04.12.2023
Facts
D.Dash,J. The Appellant, by filing this Appeal has challenged the judgment of conviction and order of sentence dated 17th November, 2017 passed by the learned Sessions Judge, Rayagada in Criminal Trial No.24 of 2016 arising out of Kashipur P.S. Case No.113 of 2015 corresponding to G.R. Case No.306 of 2015 of the Court of learned Judicial Magistrate First Class, (J.M.F.C), Kashipur. CRLA NO.827 OF 2017 Page 1 of 11 {{ 2 }} The Appellant (accused) thereunder has been convicted for commission of offence under section-302 of the Indian Penal Code (for short called as ‘the IPC’) and has been sentenced to undergo imprisonment for life. 2. Prosecution case is that on 27.10.2015 evening, when Sambaru Majhi (P.W.1) and his son Mali Majhi (deceased) who was sleeping in the verandah of their house, it was around 10 pm, the accused came to their house and woke up Mali Majhi and directed him to come with him; Mali Majhi denied to accompany. Sambaru Majhi (P.W.1), who was sleeping inside the house came out and asked not to disturb his son. The accused then asked Sambaru Majhi (P.W.1) to keep quit and to get into the room. It is stated that thereafter, accused forcibly took Mali Majhi with him and went away. Mali did not return to the house and on the morning, when Sambaru (P.W.1), father of Mali woke up and came out of the house, he detected blood stain marks on the verandah of the house of Jaimal Majhi (P.W.6). Sambaru Majhi (P.W.1) then went for search of his son Mali Majhi and on the way, he met accused Suna Majhi who disclosed before him to have killed his son Mali. Hearing this from the accused, Sambaru Majhi (P.W.1) followed the blood stain marks and discovered the dead body of his son Mali in the mustard field of Madan Majhi (P.W.8). Sambaru Majhi (P.W.1) thereafter presented a report Page 2 of 11 CRLA NO. 827 OF 2017 {{ 3 }} written by one Dolagobinda Naik (P.W.5) with the Inspector-In-Charge of Police (IIC), Kashipur Police Station. Receiving the said written report, the IIC treated the same as the FIR (Ext.1) and registering the case, took up the investigation. 3. The Investigating Officer (I.O.-P.W.11), having examined the informant, Sambaru Majhi (P.W.1) and other witnesses, visited the spot, prepared the spot map (Ext.9), held inquest over the dead body of the deceased in presence of the witnesses and prepared the report to that effect (Ext.2/2). The dead body of the deceased was sent for postmortem examination by issuing necessary requisition. The I.O. (P.W.11) arrested the accused. While the accused was in custody is said to have given the statement and stated to have kept the crowbar. On production of the same, the crowbar was seized. The wearing apparels of the accused along with his nail clippings and biological samples on production by the Police constable who had escorted the accused were seized. On completion of the investigation, the I.O.(P.W.12) submitted the Final Form placing this accused to face the Trial for commission of the offence under section-302 of the IPC. 4. Learned J.M.F.C., Kashipur, on receipt of the Final Form, took cognizance of said offence and after observing the formalities, CRLA NO. 827 OF 2017 Page 3 of 11 {{ 4 }} committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offence against this accused. 5. In the Trial, the prosecution, in support of its case, has examined in total twelve (12) witnesses. As already stated, the informant who is the father of the deceased, who had lodged the FIR(Ext.1) is P.W.1. P.W.2 is the co-villager of the Informant(P.W.1) before whom, the Informant (P.W.1) was narrated the incident and went with him to the Police Station. P.W.3 is the co-villager and the witness to the seizure of the crowbar, P.W.8 is also the co-villager from whose field the dead body of Mali Majhi was discovered. P.W.9 is the witness to the seizure of wearing apparels of the accused and the deceased, nail clippings and blood sample of the deceased, whereas P.W.10 is the Doctor who conducted postmortem over the dead body of the deceased. The I.O. of the case has come to the witness box at the end and has been examined as P.W.11. 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 12. Important of those, are CRLA NO. 827 OF 2017 Page 4 of 11 {{ 5 }} the FIR (Ext.1); inquest report (Ext.2/2); the spot map, Ext.9; the post mortem report (Ext.7). 6. The accused person, in support his plea of denial and false implication has, however, not tendered any evidence despite opportunity. 7. The Trial Court upon examination of the evidence and their evaluation at its level has held that the prosecution has been able to establish the charge under section-302 of the IPC as against the accused beyond reasonable doubt by leading clear, cogent and acceptable evidence. Accordingly, the accused has been convicted for the said offences and sentenced as aforestated. 8. Learned Counsel for the Appellant (accused) submitted that the entire case of the prosecution is based upon the evidence of P.Ws.1 and 2, who are the father of the deceased (P.W.1) and co-villagers. He further submitted that the Trial Court without properly scrutinizing the evidence of P.Ws.1 and 2 and without testing the same in the touchstone of the surrounding circumstances which are emanating from the evidence of other prosecution witnesses as also the documents have completely erred in holding that the prosecution has established the charge against the accused beyond reasonable doubt. He submitted that CRLA NO. 827 OF 2017 Page 5 of 11 {{ 6 }} when P.W.1 says that the accused had disclosed before him to have committed the murder of his son Mali Majhi, that itself sounds highly improbable. Secondly, the way and manner in which the accused is said to have narrated before P.W.1 is not at all acceptable. It is also submitted that even though for a moment, it is accepted that the accused and deceased had together left the house of P.W.1 there being no further evidence to connect the accused with the commission of murder of Mali simply basing on the last seen theory, the Trial Court ought not to have convicted the accused. He also submitted that the evidence of P.W.2 is highly unbelievable and there arises discrepancies to the evidence of P.W.1 and P.W.2 as regards their point of meeting etc. In view of all these above, he urged that the impugned judgment of conviction and order of sentence cannot be sustained; even though it is believed for a moment that the crowbar was seized at the instance of the accused while in police custody, when that has also not been independently connected with the commission of the crime. 9. Learned Counsel for the State-Respondent while supporting the finding against the accused rendered by the Trial Court submitted that the last seen theory in this case when has been fully established and in fact when there is no challenge to the same and the time between the leaving of the accused and the deceased as also the detection being too Page 6 of 11 CRLA NO. 827 OF 2017 {{ 7 }} short, the accused having not provided any explanation as to what happened with Mali (deceased) and how was it that he sustained bodily injuries and met his death, that itself according to him is enough to fasten the guilt of the accused in holding that the prosecution has proved its case against the accused to be the author of the crime removing all such inferences as to involvement of any other in the said crime. He further submitted that the evidence of P.Ws.1 and 2 being read together, leaves no room of doubt that somebody else other than the accused might have committed the offence. 10. Keeping in view the submissions made; we have carefully read the judgment of conviction. We have also extensively travelled through the depositions of all the witnesses i.e. P.W.1 to P.W.12 and have perused the documents which have been admitted in evidence and marked as Exts.1 to 13. 11. Father of the deceased is P.W.1 and he is the Informant who had lodged the F.I.R., which has been admitted in evidence and marked Ext.1. It is mentioned in the F.I.R. that during the night around 10 pm, accused had gone to the house of P.W.1 and woke up Mali. He also states his immediate response that when he asked the accused not to disturb his son who was sleeping; the accused asked him to remain CRLA NO. 827 OF 2017 Page 7 of 11 {{ 8 }} silent. It is further stated therein that thereafter accused took Mali with him. P.W.1 in his evidence reiterated the same. It has also been stated that Mali did not return during night and in the morning, he found the blood mark on the danda (outer courtyard) of Jaimal Majhi (P.W.6), who is his next door neighbour. It has also been stated that this accused and his wife were standing nearby and when he asked the accused as to the whereabouts of his son, Mali; the accused told before him to have killed Mali by giving blows by means of crowbar on his head in that outer courtyard of the house of Jaimal Majhi (P.W.6). His further evidence is that the accused being asked about the dead body told him that, the same was lying in the mustard field of Madan Majhi. P.W.1 has further stated that he had noticed the marks of dragging with blood sticking from that outer courtyard of the house of Jaimal Majhi (P.W.6) up to the field of Madan Majhi. His further evidence is that he having proceeded in that direction, he detected the dead body of his son Mali lying in the field with deep injuries on his head. This P.W.1 has stated that at that time, co-villager Sani Majhi, P.W.2 came and when he was told about the happenings, both went about the police station. During cross-examination, he has stated that Sani Majhi(P.W.2) was passing by that field and he called him. It has also been elicited during cross- examination that no one was present in the field, when he and P.W.1 CRLA NO. 827 OF 2017 Page 8 of 11 {{ 9 }} arrived. It pains us to point out her that suggestion given by the defence to what degree is improbable and rather we may say impossible a happening when the area where the dead body was lying. The suggestion is that Mali after returning from Dushera festival entered into the house of the accused to molest his wife, when the accused returned, the deceased hurriedly came out and died after fall. Where the fall was is not stated and how the dead body was then found in the field at a distance from the house is not suggested. There is not even the suggestion to P.W.1 that the accused had not disclosed about his role in killing the deceased before him. We find absolutely no other infirmity in the evidence of P.W.1. His evidence receives full corroboration from the F.I.R. version and there is neither any material discrepancy nor vital omission so as to be termed as material contradictions. 12. With the above discussed evidence of P.W.1, when we approach the evidence P.W.2, we find him to have stated that P.W.1 told him that the accused had killed his son and dragged the dead body of his son to the field of Madan Majhi. It is stated that the accused who was then in the outer courtyard being asked told to have killed Mali by dealing blow at his head by crowbar. He next says that he had gone to the field. Although some variance remains in the evidence of P.Ws.1 and 2 as to
Legal Reasoning
where P.W.1 met P.W.2, the same in our view has no impact over the CRLA NO. 827 OF 2017 Page 9 of 11 {{ 10 }} consistent evidence of the P.Ws.1 and 2 as regards confession made by the accused before them. When there stands the evidence of P.W.1 that the accused had taken the deceased with him in the night from their house waking up him from his sleep, the same coupled with the evidence of P.Ws.1 and 2 as regards confession of the accused made before them in the very morning, in our considered view are enough to conclude with the prosecution has established the charge against the accused beyond reasonable doubt, when the accused has provided no explanation at all as to what happened after he and the deceased left the house of the deceased in that night. In addition to the above, we too find that the confession of the accused is also with regard to the user of crowbar in dealing the fatal blows, the Doctor who had conducted autopsy over the dead body of the deceased had noted the laceration of the size of 18cm x 3cm x 2 cm on occipital side of the head of the dead body with the blood stains and the fracture of the scalp with rupture on cranial membranes, congested with brain matter having extensive intracranial haemorrhage leading to his death, which is thus homicidal have not even challenged. That apart, the seizure of crowbar in course of investigation has been proved. Even though it is said to be not pursuant to the statement of the accused while in police custody, it has also been connected through the evidence of the Doctor (P.W.10) that CRLA NO. 827 OF 2017 Page 10 of 11 {{ 11 }} said crowbar, M.O.-I can cause the injury on the head of the deceased which he had deposed. 13. 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 of IPC is well in order and the accused has rightly been convicted and sentenced thereunder. 14. In the result, the Appeal stands dismissed and the judgment of conviction and order of sentence dated 17th November, 2017 passed by the learned Sessions Judge, Rayagada in Criminal Trial No.24 of 2016 are hereby confirmed. G. Satapathy, J. I Agree. (D. Dash), Judge. (G.Satapathy), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: PERSONAL ASSISTANT Reason: Authentication Location: OHC Date: 10-Dec-2023 16:49:02 CRLA NO. 827 OF 2017 Page 11 of 11