The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.840 of 2022 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 16th February, 2022 passed by the learned Additional Sessions Judge, Umerkote, Nabarangpur in C.T.185 of 2014. Sunadhar Pujari ---- -versus- …. Appellant State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.Jitendra Samantaray, S.G. Das & S. Swain (Advocates) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 23.02.2024 : Date of Judgment : 07.03.2024 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 16th February, 2022 passed by the learned Additional Sessions Judge, Umerkote, Nabarangpur in C.T.185 of 2014 arising out of G.R. Case No.537 of 2014 corresponding to Raighar P.S. Case No.103 CRLA No.840 of 2022 Page 1 of 10 {{ 2 }}
Legal Reasoning
of 2014 in the Court of the learned Judicial Magistrate First Class, Umerkote. 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.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for six (6) months. 2. PROSECUTION CASE:- In or around the year 2006, the accused-Sunadhar married Jema, the sister of Khaga Pujari (Informant-P.w.4). A female child was born to the said wedlock after two years of marriage. On 14.05.2014 morning, the Informant-P.W.4 got the information that his sister (Jema) met her death on account of the assault by the accused by means of a lathi. The Informant (P.W.4) with local Sarpanch, Ward Member and Samiti Member went to the house of the accused and there, they found Jema lying dead with injuries on her head and other parts of the body. It was then learnt from his niece Sima Pujari that on 13.05.2014, during noon hours, after some exchange of hot words between Jema and the accused, the accused assaulted Jema by means of a thenga and done her to death. CRLA No.840 of 2022 Page 2 of 10 {{ 3 }} On that very day, the Informant (P.W.5) lodged a written report with the Inspector-in-Charge (I.I.C.) of Raighar Police Station. The I.I.C, receiving the written report, registered the criminal case and took up the investigation. 3. The Investigating Officer (I.O.-P.W.17), in course of the investigation, examined the informant (P.W.4) and other witness and recorded their statement. The I.O. (P.W.17), having visited the spot, prepared the spot map (Ext.11). He (P.W.17) seized some broken pieces of bangles, blood stained earth, sample earth from the spot and seized the same under seizure list (Ext.1). The I.O. (P.W.17) seized the wooden lathi under seizure list (Ext.6). On the same day, the I.O. (P.W.17) held the inquest over the dead body of Jema and prepared the report to that effect (Ext.2). He (P.W.7) sent the dead body for post mortem examination by issuing necessary requisition. The wearing apparels of the deceased were seized under seizure list (Ext.5). The seized incriminating articles were sent for chemical examination through Court. The I.O. (P.W.17), having received the order of transfer, handed over the charge of the investigation to Sub-Inspector (S.I.) of police (P.W.18), who, on completion of investigation, submitted the Final Form placing this accused to face the Trial for commission of the offence under section 302 of the IPC. CRLA No.840 of 2022 Page 3 of 10 {{ 4 }} 4. Learned J.M.F.C., Umerkote, on receipt of the Final Form, took cognizance of the said offence and after observing the formalities committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the aforesaid offence against this accused. 5. The prosecution, in support of its case, has examined in total eighteen (18) witnesses during Trial. Out of them, the informant, who happens to be the brother of the deceased, is P.W.4 and he is also witness to the inquest. P.Ws.2, 7, 8, 9, 10, 12, 13 & 14 are the seizure witnesses. P.Ws.3,5,6 are the witnesses to the inquest. P.W.11 is the scribe of the FIR (Ext.3).The first I.O. of the case has been examined as P.W.17 whereas the second I.O, who submitted the Final Form is P.W.18. The Doctor, who had conducted the post mortem examination over the dead body of the deceased is P.W.15. 6. 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 19. Out of those, the important are, the FIR (Ext.3), the inquest report (Ext.2); the post mortem report (Ext.8); and the spot map (Ext.11). CRLA No.840 of 2022 Page 4 of 10 {{ 5 }} 7. The accused has taken the plea of complete denial and false implication. He, however, has not tendered any evidence in support of such plea.
Legal Reasoning
8. Mr.J. Samantaray, learned counsel for the Appellant (accused) submitted that here the case of the prosecution is based upon the solitary testimony of the daughter of the accused and the deceased, who has been examined as P.W.16 and projected as the sole eye witness to the occurrence. Placing the deposition of P.W.16, he pointed out that for the reason that her evidence is not consistent and bristles with the infirmities, the Trial Court ought not to have labelled P.W.16 as a reliable and trustworthy witness. He further submitted that the evidence of P.W.16 since do not find corroboration from any other evidence, the Trial Court did commit grave error in accepting her evidence when the fact remains that the deceased is her mother and she, at the time of the incident, was five years old. He further submitted that the evidence of the child witness (P.W.16) ought not to have been taken as the base of conviction of the accused without completely overruling the possibility of her being tutored. He thus submitted that the judgment of conviction and the order of sentence, impugned in this Appeal, cannot be sustained. CRLA No.840 of 2022 Page 5 of 10 {{ 6 }} 9. Mr.P.K. Mohanty, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt against these accused persons, as has been returned by the Trial court, contended that the Trial Court, finding the evidence of
Decision
P.W.16, who is equally disposed of towards the accused and the deceased, being their daughter as reliable and trustworthy, has rightly convicted the accused. He further submitted that the situation in which the incident is said to have taken place when P.W.16 was the only witness, who had seen the same, the question of her being tutored to falsely implicate her father does not arise. Placing the deposition of P.W.16, he contended that there is no such infirmity in her evidence nor anything has been brought out during cross-examination to say that she had ever been tutored by anybody and such evidence tendered during trial was not voluntary. He submitted that the evidence of P.W.16 receive corroboration from the evidence of P.W.4, who is none other than the younger brother of the accused when he has stated that having received the information from the local Sarpanch, when had gone to the spot, he saw the wife of the accused, namely, Jema lying dead on the verandah of the house with bleeding injuries on her head and legs. Most important is the evidence of P.W.4, which certainly provide support to the evidence of P.W.16 is to the effect that he had seen P.W.16 and on CRLA No.840 of 2022 Page 6 of 10 {{ 7 }} his arrival, she had disclosed before him that it was the accused, who killed her mother. 10. 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.19. 11. It is not in dispute that Jema met a homicidal death. The prosecution has found to have proved the same though the evidence of the Doctor (P.W.15), who had conducted the autopsy over the dead body of Jema. He has clearly stated to have noted bleeding injury on the occipital region of the head with intracranial haemorrhage besides fractures of both the legs, injuries on multiple organs, abrasion and swelling of chest as also abrasion with bleeding over forehead. As per his evidence, the death was homicidal and such injuries were possible by that lathi, which being seized, had been sent to him for examination. The above being the evidence of the Doctor, we find the same to have received support from the evidence of the I.O. (P.W.17), who had held inquest over the dead body of the deceased and had noted such injuries in his report (Ext.2). The daughter of the deceased and the accused (P.W.16) and other witnesses have also stated CRLA No.840 of 2022 Page 7 of 10 {{ 8 }} about the deceased, having such injuries on her head and other parts. With the above overwhelming evidence on record, we find absolutely no difficulty to concur with the finding of the Trial Court that Jema met a homicidal death. 12. The solitary eye witness to the occurrence, as projected by the prosecution, is P.W.16. The witness, when examined was aged about nine years. The Trial Court, after having tested her competency and understanding of the implication of the oath, has thought it proper to administer oath and take down her evidence. It is stated by her that when she was reading in Class-II, the incident took place wherein her mother was killed by her father. She has stated that in the afternoon on that day, the accused, after taking liquor, quarreled with Jema and then, having dragged Jema from one house to another, gave lathi blows resulting bleeding injuries on her head leading to her death. She has further stated that thereafter the accused laid the dead body of Jema on the bed and concealed herself inside the house. This witness (P.W.16) has also stated to have informed about the incident to the neighbour whereafter they arrived. She has categorically stated that except her, non-else had seen the assault made by her father (accused) upon her mother (deceased). The witness of such tender age, having seen the incident, being not able to name the neighbour, when asked during cross- CRLA No.840 of 2022 Page 8 of 10 {{ 9 }} examination, that in our considered view, cannot be so looked to discredit her evidence altogether by branding her to be a witnesses stating the falsehood when we find absolutely no reason on her part to falsely implicate her father (accused) in the killing of her mother. When she has stated during trial that after the incident, her father (accused) laid the dead body of her mother, that having not been stated during her examination by police and recording of the statement under section 161 Cr.P.C. according to us is not at all fatal so as to discard the substratum of the evidence of P.W.16. Barring the above, we find nothing more to get any clue that she had been tutored to depose in implicating the accused nor we find any material to have been elicited from her so as to doubt her presence at the relevant time in seeing the incident. Therefore, we find the Trial Court to have rightly accepted the evidence of this witness (P.W.16) as wholly reliable and trustworthy when the post occurrence witness (P.W.4), who is none other than the younger brother of the accused, has also deposed that he had been told by P.W.16 that her mother (deceased) had been assaulted by the accused to death. With the above evidence on record, we find that the evidence of the Doctor (P.W.15), who had conducted the autopsy over the dead body of the deceased as to the number and nature of the injuries noticed, the continuity of the assault, as stated by P.W.16, receives CRLA No.840 of 2022 Page 9 of 10 {{ 10 }} corroboration. We find no material to even remotely infer that anybody else was also present at the time and might have participated. 13. With the bleeding injury on the occipital region of the head, which has caused the intracranial hemorrhage, both the legs had been fractured, the assault is found to be indiscriminate and continuous stretching over some time, which being seen with the evidence of P.W.16 that the accused had taken her mother (deceased) by assaulting her from one house to the other, the Trial Court, in our view found to have rightly held the accused guilty for commission of offence under section 302 of the IPC. 13. In the result, the Appeal is dismissed. The judgment of conviction and order of sentence dated 16th February, 2022 passed by the learned Additional Sessions Judge, Umerkote, Nabarangpur in C.T.185 of 2014, are hereby confirmed. G.Satapathy, J. I Agree. 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: 11-Mar-2024 18:22:33 CRLA No.840 of 2022 (D. Dash), Judge. (G.Satapathy), Judge. Page 10 of 10