Orissa High Court
Sipriyan Digal vs State Of Odisha on 24 July, 2023
Bench: D.Dash, S.K.Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.11 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 order of sentence dated 27th January, 2017 passed by the
learned Sessions Judge, Kandhamal, Phulbani in Sessions Trial
No.215 of 2012.
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Sipriyan Digal .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mr.Amrut Baral,
Advocate.
For Respondent - Mr.P.K.Mohanty,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K.PANIGRAHI
Date of Hearing : 07.07.2023 :: Date of Judgment:24.07.2023 D.Dash, J. The Appellant, by filing this Appeal, from inside the jail, has challenged the judgment of conviction and order of sentence dated dated 27th January, 2017 passed by the learned Sessions Judge, Kandhamal, Phulbani in Sessions Trial No.215 of 2012 Page 1 of 12 JCRLA No.11 of 2017 {{ 2 }} arising out of G.R. Case No.116 of 2012 corresponding to Sarangada P.S. Case No.18 of 2012 of the Court of the learned Sub Divisional Judicial Magistrate (S.D.J.M.), Balliguda.
The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, 'IPC') and sentenced to undergo imprisonment for life.
2. Prosecution case is that accused married Rina Digal sometime in the year 1992. After marriage, they were staying in village Pirigada under Sarangada Police Station in the District of Kandhamal. They stayed as neighbours of Joseph, who is the brother-in-law of the accused (Rina's brother). They used to often quarrel on some monetary matters. On 27.04.2012 morning around 9 am, Rina came home after fetching water from outside. The accused then was present in the house. He suddenly threw some coins on the floor. Seeing the coins lying on the floor, Rina bent down to collect the coins. It is said that the accused then finding the opportune moment, dealt axe blow on her head. Receiving the blow, Rina ran outside in order to escape from being assaulted further but in the process, she fell down. The accused then chased her and dealt repeated blows upon her. He then threatened to assault others with that tangia and knife, if they would dare to come to rescue Rina. Joseph (P.W.3) saw the Page 2 of 12 JCRLA No.11 of 2017 {{ 3 }} assault and also heard about everything from his nephew (son of Rina and accused).
The Gram Rakhi of the village informed the matter over phone to the police station. The Officer-in-Charge (OIC) of Sarangada Police Station, receiving the same telephonic message from Gram Rakhi, entered the fact in the Station Diary Book maintained at the Police Station and immediately, rushed to the spot. Joseph (P.W.3) then lodged a written report seeing police at the spot. The said written report was treated as FIR and case being registered, investigation was taken up by the OIC (P.W.14).
3. In course of investigation, the I.O (P.W.14) examined the informant (P.W.3), who lodged the written report before him at the spot (Ext.4). The spot map was prepared by the I.O (P.W.14). He then seized the blood stained and sample earth as well as the knife under seizure list (Ext.1). The accused being searched was not found at the spot. Some other witnesses are examined by P.W.14 and he recorded their statements under section 161 of the Cr.P.C. The accused then being searched and found in the village was apprehended and taken to custody by the I.O. (P.W.14). The accused during that period in custody has stated to have kept the Tangia in a particular place and expressed that he would give recovery of the same if taken to the place of keeping of that tangia. The statement of the accused was recorded by the I.O. Page 3 of 12 JCRLA No.11 of 2017
{{ 4 }} (P.W.14) vide Ext.11/2. The accused then led the I.O (P.W.14) and other witnesses to the western area of the village and showed the tangia in the bush by the side of the road. Tangia was recovered and seized along with the wearing apparels of the accused under seizure list (Ext.6). Rina did not met instantaneous death. She being shifted in a critically injured condition to the Sub Divisional Hospital, Baliguda, the I.O (P.W.14) went there and came to know that Rina had succumbed to the injuries. Inquest was then held over the dead body of the deceased and report to that effect was prepared in presence of the witnesses. Steps were taken for post mortem examination of the dead body of Rina. The incriminating articles seized by the I.O. (P.W.14) were sent for chemical examination through Court. The accused was forwarded in custody to Court.
4. Finally, on completion of investigation, I.O (P.W.14) submitted the Final Form placing the accused to face the Trial for commission of offence under section 302 of the IPC.
5. Learned SDJM, Balliguda on receipt of the Final Form, took cognizance of the offence under section 302 of the IPC 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 said offence against the accused.
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6. In the Trial, the prosecution in total has examined fourteen (14) witnesses. As already stated, the informant, who is the brother of the deceased and brother-in-law of the accused, has been examined as P.W.3 and he had lodged the FIR (Ext.4). The two sons of the accused and the deceased have been examined as P.W.8 and P.W.11 as in their presence, the entire incident took place. P.W.4 is another witness to the occurrence and the Gram Rakhi of the village has been examined as P.W.1. P.W.7, P.W.12 and P.W.13 are the witnesses to the recovery of the tangia at the instance of the accused pursuant to his statement. The doctor who had conducted Post Mortem Examination over the dead body of Rina has come to the witness box as P.W.2 and the first I.O., being examined as P.W.14, the next I.O. who completed the investigation, has come to the witness box as P.W.10.
7. Besides leading the evidence by examining above the witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.15. Out of those, the important are the FIR, Ext.4, inquest report, Ext.5, Post Mortem Report, Ext.2, statement of the accused, Ext.11/2. The knife and tangia which had been seized in course of investigation were produced during the Trial as Material Objects (M.O-I and M.O.II).
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8. The accused in support of his plea of denial and false implication has, however, not tendered any evidence.
9. The Trial Court on detail examination of the Doctor, who had conducted Post Mortem Examination over the dead body of the deceased i.e. P.W.2 and on going through his report (Ext.2) as also the evidence of the I.O (P.W.14) and other witnesses has come to a conclusion that the death of the deceased was homicidal in nature. In fact this aspect of the case was not under challenge before the Trial Court and that is also the situation before us.
The Doctor, who had conducted the Post Mortem examination over the dead body of the deceased under requisition by the I.O. (P.W.14) has in clear terms stated to have noted four lacerated wounds and on dissection he found a huge haematoma of size 14.5 cm x 10 cm below the frontal area extending up to the occipital area of scalp and another haematoma of the size of 6 x 4 cm over the left temporal area of scalp. A vertical linear fracture of frontal bone of the size 9 x 0.5 cm, a horizontal linear fracture of occipital bone of the size 7 x0.5 cm over the occipital bone had also been noticed. She noticed the brain membranes was ruptured of the size of 7 x 2 cm over the frontal lobe, huge subarachnoid haematoma involving the whole of frontal and occipital lobes of cerebral hemispheres were found. Page 6 of 12 JCRLA No.11 of 2017
{{ 7 }} She has opined the injuries to be ante mortem and the death to be homicidal. The I.O (P.W.14), having held the inquest over the dead body of the deceased has noted such injuries in his report (Ext.5). Other witnesses including P.W.3 have also stated to have seen the deceased with such injuries on her person. All such evidence having not been questioned by the defence and thus when firmly stand, we find absolutely no difficulty in affirming the finding of the Trial Court that Rina met homicidal death.
10. Learned Counsel for the Appellant (accused) submitted that the prosecution in this case has not proved the motive behind the crime and when P.W.3, P.W.4 and P.W.5 have clearly stated to have reached the spot after the assault was over, their evidence that they had seen the incident especially as to the assault is not to be believed. He further submitted that the evidence of P.W.8 and P.W.11, who are the two sons of the accused and the deceased being contradictory to their previous version during investigation, in view of the omission of an important fact just before the incident, the Trial Court ought not to have accepted their evidence as credible. He also submitted that they being interested witnesses, the Trial Court ought not to have ignored such omission which amounts to material contradiction and ought not to have accepted their evidence that they had been seen the incident taking place before them as they have stated. He Page 7 of 12 JCRLA No.11 of 2017 {{ 8 }} therefore submitted that the prosecution evidence as to the role of this accused and the act said to have been done are liable to be rejected.
11. Learned Counsel for the Respondent-State submitted that the evidence on record is enough to conclude that it is the accused, who had done his wife to death. He further submitted that most importantly, the two sons of the accused and the deceased i.e. P.W.8 and P.W.11 when have stated in clear terms that the accused, who is their father had assaulted their mother to death in their presence; since they have absolutely no axe to grind against the accused, there is no basis at all to discard their evidence as to the complicity of the accused.
12. 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.14) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.15.
13. The prosecution has examined the two sons of the accused and the deceased as P.W.8 and P.W.11 and they are the most important witnesses.
P.W.8 is aged about 12 years whereas the age of P.W.11 is 11 years at the time when the occurrence took place. P.W.8 has Page 8 of 12 JCRLA No.11 of 2017 {{ 9 }} deposed in the year 2013 whereas P.W.11 has deposed in the year 2015. At the time when they deposed in Court, they were reading in class VII. It is the evidence of P.W.8 that after his mother came with water and kept the same in the house, the accused (father) threw some coins near the door inside the house and then his mother went to collect the coins. He further stated that when his mother was collecting the coins, the accused (father) brought out an axe and dealt blow on her head. It is his evidence that this mother receiving the blow started running outside and while running away, fell outside the house and thereafter the accused (father) dealt further blows by means of axe on her head. Being a child of 11 years, his response has been stated that he out of fear ran away and went to inform his maternal uncle Joseph (P.W.3). He has also stated that when her mother again got up and ran away, the accused (his father) chased her and near the bamboo bush again assaulted her and gave kicks. Despite cross- examination, we find that no such material has been elicited from this P.W.8 to even entertain slightest doubt with regard to his presence at home at the relevant time. The only ground raised to discard his evidence is that he had not stated before the Police as regards to the fact that his father had thrown the coins and while his mother (deceased) was collecting coins, his father (accused) assaulted her mother. The evidence of P.W.11 is the other son who has reiterated the evidence as to what P.W.8 has stated. His Page 9 of 12 JCRLA No.11 of 2017 {{ 10 }} evidence is also in the same vein. This witness being cross- examined, no such material has come to surface to raise any doubt with regard to his presence at home at the relevant time with P.W.8. The same criticism is leveled against the P.W.11 as is leveled against this P.W.11. It is true that this witness has not stated before Police as to the fact that accused (father) had thrown coins and when their mother was collecting the coins, the accused (father) assaulted her mother. Though this amounts to an omission, said omission, in our considered view, does do not affect the credibility and veracity of the evidence of P.W.8 and P.W.11 and, therefore, we are unable to accept the criticism in support of their evidence being pushed beyond the zone of consideration.
The settled position of law is that the statements given by the witnesses before the Police are not meant to be so detail and elaborate and it is also not expected to be such looking to the situation under which the same are recorded. When the omissions are vital those only merit consideration. But mere omissions of minor aspect will not provide any justification to say that witness has developed the matter at a later stage and thus is a lier. Here the initial part of the happening when has not been stated by P.W.8 and P.W.11 before the Police during investigation, we must keep in mind their mental state at that Page 10 of 12 JCRLA No.11 of 2017 {{ 11 }} point of time that their mother was killed by none else than their father, who is the accused and it was brutal and painful for them to see just like a horror film. These two sons saw their mother being assaulted to death by the accused and for them to omit some happenings/proceeding to that assault is not that vital an omission when the actual incident of assault as have been stated by them stand firm and consistent.
In addition to the evidence of P.W.8 and P.W.11, we also find the evidence of P.W.3, whose house is at a distance of 100 feet from the house of the accused which has been proved through the spot map (Ext.12). When he with other villagers reached the spot, the deceased was lying in front of the house. The accused when was present in the house at the relevant time as has been established through P.W.8 and P.W.11 who are two sons. There comes no explanation from his side as to how his wife (deceased) died. This in the peculiar facts of the case is a circumstance worth reflection, especially when he states in his statement recorded under section 313 of the Cr.P.C. that he had no knowledge as to how his wife (deceased) died.
In addition to the evidence of P.W.8 and P.W.11, we find corroborative evidence falling from the lips of P.W.4. Furthermore, it having been proved through P.W.14 that the seized axe was recovered from near the bush pursuant to the statement which was given by the accused while in Police Page 11 of 12 JCRLA No.11 of 2017 {{ 12 }} custody, that too provides further support to the prosecution case besides the evidence of the Doctor (P.W.2) that the injuries are possible by means of the axe seized in course of investigation.
On a conspectus of discussion of evidence as hereinabove, we are thus 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 the IPC Act is well in order and the accused has rightly been convicted for the offence under section 302 of the IPC and sentenced thereunder.
14. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 27th January, 2017 passed by the learned Sessions Judge, Kandhamal, Phulbani in Sessions Trial No.215 of 2012 are hereby confirmed.
(D. Dash), Judge.
Dr.S.K.Panigrahi, J. I Agree.
(Dr.S.K.Panigrahi), Judge.
Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 25-Jul-2023 17:11:14 Page 12 of 12 JCRLA No.11 of 2017