Orissa High Court
Criminal Procedure vs State Of Odisha on 4 September, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.43 of 2024
In The matter of an Appeal under section-383 of the Code of
Criminal Procedure, 1973 and from the judgment and order of
sentence dated 13th December 2023 passed by the learned
Additional Sessions Judge, Aska in Sessions Trial Case No.98 of
2022.
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Simanchal Mishra .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
==================================================
For Appellant - Ms. Pratyusha Naidu,
Advocate, (Amicus Curiae)
For Respondent - Mr. S.K. Nayak,
Addl. Government Advocate.
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE V. NARASINGH
DATE OF HEARING :21.08.2024 : DATE OF JUDGMENT:04.09.2024 The Appellant, from inside the jail, has assailed the judgment of conviction and order of sentence dated 13th December 2023 passed by the learned Additional Sessions Judge, Aska in Sessions Trial Case No.98 of 2022 arising out of G.R. Case No.1365 of 2022 corresponding to Aska P.S. Case No.675 of 2022 of the file of learned Judicial Magistrate First Class (J.M.F.C.) (Cognizance), Aska.
Page 1 of 13JCRLA No.43 of 2024 The Appellant (accused) thereunder has been convicted for commission of offence under section-302 of the Indian Penal Code, 1860 (for short called as the IPC). Accordingly, the Appellant (accused) have been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- in default to undergo rigorous imprisonment for a period of four (4) months.
2. Prosecution Case: -
On 9.10.2022, around 6.40 pm, one Siba Prasad Tripathy (Informant-P.W.3) lodged a written report with the Inspector-In- Charge, Aska Police Station stating therein that his sister, Laxmipriya had married the accused about 25 years before. It is further stated that after the marriage, the accused used to assault his sister regularly and as that continued, his sister was residing with her two sons separately at Aska and the accused often used to come to that place of stay and create disturbance. On 08.10.2022, evening, the accused has visited the place where the sister of the Informant (P.W.3) was staying and having abused and assaulted her, he left the place giving threat to her life. On 09.10.2022 around 4 pm, the accused again came to that house where the sister of the Informant (P.W.3) was residing and stabbed on her belly by means of a knife, leading to her death.
The IIC, Aska Police Station having received an information that Laxmipriya had been stabbed to death, entered the said fact in the Station Diary of the Police Station and acting upon that Page 2 of 13 JCRLA No.43 of 2024 proceeded to Choudhury Colony, Aska where the house in question situates. At that spot, Siba Prasad Tripathy, the brother of the deceased (Laxmipriya Mishra), lodged a written report (Ext.1) to the above effect which being received was sent to the P.S. through Police Constable, Mukti Pradhan for formal registration of the F.I.R. At 6.40 pm, the Sub-Inspector of Police, Aska P.S. registered the same and upon registration of the case. The investigation was taken up.
He (I.O.-P.W.14) made requisition to Superintendent of Police, Ganjam to depute the Scientific Team of DFSL, Ganjam to visit the spot and collect incriminating materials. The I.O. (P.W.14), examined the Informant (3) and other witnesses, prepared spot map (Ext.17). He (P.W.14) held inquest over the dead body of the deceased in presence of the witnesses and prepared report (Ext.6). Then he sent the dead body of the deceased to M.K.C.G. M.CH., Berhampur under the dead body challan (Ext.19) and postmortem examination. The I.O. (P.W.14) then arrested the accused and seized his wearing apparels. The accused while in the police custody is stated have disclosed in presence of the witnesses that he if would be taken near his house where he had kept the knife would give recovery of the same. The Statement of the accused being thus recorded by the I.O.(P.W.14), the accused pursuant to his statement led the Police and other witnesses to his house in his native village. Then the accused gave recovery of the blood-stained steel knife Page 3 of 13 JCRLA No.43 of 2024 which was seized. The accused thereafter was sent for medical examination and collection of his biological samples. The I.O. (P.W.14) also seized the wearing apparels of the deceased under seizure list Ext.7. The seized incriminating articles were sent to the RFSL, Berhampur through the Court for chemical examination. On 14.10.2022, the I.O. (P.W.14) received postmortem examination report of the deceased as also the chemical examination report.
Investigation in this way continued and ultimately, Final Form was submitted placing this accused and to face the trial for commission of offence under section-498-A/302 of the IPC.
3. Learned J.M.F.C. (Cognizance), Aska having received the Final Form as above, took cognizance of the offence under section-498- A/302 of the IPC and after observing formalities, committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the said offences against the accused person.
4. The prosecution in the trial has examined in total fourteen (14) witnesses. Out of whom as already stated, Siba Prasad Tripathy, the brother of the deceased, who had lodged the F.I.R., Ext.1 has been examined as P.W.3. P.Ws.1 and 2 are eye witnesses to the occurrence being the neighbours of the deceased, P.Ws.4 & 6 are the owners of the house where the deceased and her son were living on rent, P.W.5 is the Police Constable attached to Aska Police Station and a witness to seizure, P.W.7, is the brother-in-law Page 4 of 13 JCRLA No.43 of 2024 (husband of younger sister) of the deceased, whereas P.W.8 is the shop owner, wherefrom the accused had purchased the knife, P.W.9 is the Police Constable attached to Aska P.S., who has assisted the I.O. (P.W.14) in the investigation of the case and P.W.10 is the scribe of the F.I.R. as per narration of the Informant-Siba Prasad Mishra. P.W.11 is also an eye witness to the occurrence being the son of the deceased-Laxmipriya and the accused. The Doctor, who conducted autopsy over the dead body of the deceased is P.W.12, whereas P.W.13 is the witness to the disclosure statement of the accused and the witnesses to the seizure of the knife at the instance of the accused. The Investigating Officer has come to the witness box at the end and examined as P.W.14.
The prosecution besides piloting the evidence by examining the above witnesses has proved several documents which have been marked as Exts.1 to 31. Out of those, important are the F.I.R, Ext.1. Ext.2 is the inquest report and Ext.11, postmortem report. The spot visit report has been admitted in evidence and marked as Ext.28, whereas the Chemical Examination report is Ext.31.
5. The defence plea is that of complete denial and false implication.
6. The Trial Court on examination of the evidence let in by the prosecution and upon their evaluation has finally found that the charge against the present accused for commission of offence under section -302 of the IPC has been established beyond reasonable Page 5 of 13 JCRLA No.43 of 2024 doubt. Accordingly, the accused (Simanchal Mishra) having been convicted for commission of offence under section-302 of the IPC and sentenced as aforestated.
7. Learned Counsel for the Appellant (accused) submitted that the evidence relied upon by the Trial Court in fastening the guilt upon the accused come from highly interested sources and therefore, the Trial Court ought to have put the same under strict examination. She further submitted that the evidence of the prosecution witnesses; more importantly, P.W.11, who happens to be the son of the accused and the deceased has not been properly analyzed. According to her, the appreciation of evidence of P.Ws. 1, 2 and 11 as also other witnesses having not been properly made, the Trial Court has gone wrong in fastening the guilt upon the accused in holding that the prosecution has established the charge against the accused for committing murder of his wife beyond reasonable doubt. She, therefore, urged that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside.
8. Learned Additional Standing Counsel for Respondent-State while supporting the finding of guilt against the accused as has been returned by the Trial Court contended that the Trial Court upon detail discussion of the evidence on record including the important eye witnesses, P.W.11 and others has very rightly held the prosecution to have established its case that it was the accused who had stabbed his wife (deceased) on her belly in intentionally Page 6 of 13 JCRLA No.43 of 2024 causing her death. Inviting our attention to the depositions of all these witnesses, he submitted that no such material surfaces in their evidence, so as to express doubt for a moment that they are falsely implicating the accused. Since according to him, there was no reason or justification that P.W.11, who happens to be a son of the accused would falsely implicate his father in the said incident of causing death of his mother. He thus contended that the conviction of the accused under section-302 of the IPC is well in order.
9. Keeping in view the submissions made; we have carefully read the judgment passed by the Trial Court and have extensively travelled through the evidence adduced by the prosecution witnesses i.e. P.Ws. 1 to 14. The documents admitted in evidence and marked Exts.1 to 31 from the side of the prosecution have been perused.
10. The prosecution has led evidence through the Doctor, P.W.12 who had held autopsy over the dead body of the deceased in showing that the deceased met her death on account of the stab injuries received. It is has been stated by P.W.12 that he had noticed one stab wound of the size of 5cm X 2cm X cavity deep over the left hypochondrium, 102 cm from the left heel and 8 cm lateral to the mid line along the mid clavicular line with cut injury on the underline structures like muscles and ribs, running upward, medially and posterior direction. It is also his evidence that he had noted three cut wounds merging together to form large cut wound Page 7 of 13 JCRLA No.43 of 2024 of size 12 cm X 2 cm X thyroid deep over the antero-lateral aspect of the neck, extending from 3 cm lateral to mid line on the right side of the neck to a point 5 cm lateral to mid line to the left side of the neck, through the front of neck, with cut injury of the underlying structures like muscles, great vessels and thyroid.
It is the evidence of P.W.12 that on discussion, he had noted that the neck structures like muscles, great vessels and thyroid were cut and the interior margin of the 10th rib was cut close to the sterno- coastal junction. As per his evidence, the heart was punctured at the apex, both chamber empty and one litre of blood was detected within the thoracic cavity when the abdominal fats and muscles are cut and surrounding tissues are contused, beneath the stab wound detected over the left hypochondria. He has stated that all such injuries were ante-mortem in nature and might have been caused by sharp cutting weapon. He has categorically stated that the death was on account of haemorrhage and shock resulting from the injuries which he noticed. Despite cross-examination, we find that the evidence of this Doctor in noting all those injuries during postmortem examination has not been shaken. Some stray questions having been asked to this witness, P.W.12, we find the answer to have been very rightly given which has nothing to do in impeaching the evidence of P.W.12. This P.W.12 has also stated the nature of death to be homicidal. In addition to the above, we find the evidence of the I.O. (P.W.14), who having held the inquest over the Page 8 of 13 JCRLA No.43 of 2024 dead body of the deceased had noted the injuries in his report, Ext.2 and that has also been the evidence of other witnesses more particularly, the witnesses who has seen the deceased lying dead with the external injuries on his person. With all these evidence remaining un-impeaching, we have no other alternative but to agree with the finding of the Trial Court that Laxmipriya (wife of the deceased) met homicidal death.
11. Now coming to address the rival submission with regard to the conclusion of the Trial Court in the matter of establishment of the charge against the accused, we are called upon to examine the evidence independently at our level, in order to judge the sustainability of the finding rendered by the Trial Court.
The Informant (P.W.3) is none other than the brother of the deceased and brother-in-law of the accused. In the F.I.R. (Ext.1), it has been stated by him that after the marriage, her sister was being assaulted by the accused and therefore, she at the time of the incident, was living with her two sons in another house in Aska and there also the accused used to come and assault her. In the evidence having reiterated those facts, P.W.3 states that the accused got addicted to liquor and consuming the same, he used to abuse and assault his wife namely, Laxmi Priya (deceased). He has further stated that many a times he had gone and subsided the matter but the situation did not improve. He has specifically stated that three years before the incident, Laxmipriya was residing separately in Page 9 of 13 JCRLA No.43 of 2024 Aska in a rented house at Choudhury Colony and she was then residing with her younger son. It is his further evidence that when he was in village, his younger brother-in-law informed him over telephone about the said tragic incident of murder of his sister and therefore, he went and arriving at the house, he saw the dead body of his sister lying on the ground with bleeding on the floor. He of course does not directly implicate the accused to have injured the deceased in causing her death.
P.W.1 was the neighbour of the deceased during the time she was residing separately from her husband (accused). She has specifically stated that hearing hullah on that day at 5 pm when she with Hemalata went to the house where Laxmipriya used to reside, she saw the accused holding the knife stabbing on the belly of Laxmipriya, causing bleeding injuries leading her fall on the floor. During cross-examination, this P.W.1 has further stated that at the relevant time, the son of the accused and the deceased (P.W.11) was very much present there. She has asserted during cross-examination to have seen the accused going away with the knife stained with blood. Nothing has been elicited during cross-examination from this P.W.1 so as to raise any suspicion in mind with regard to her arriving in the house of the deceased, hearing the hullah right at that time and seeing the deceased being stabbed by the accused, who thereafter ran away.
Page 10 of 13 JCRLA No.43 of 2024
The evidence of P.W.1 is fully supported by the evidence of P.W.2, who has also stated that hearing the hullah on that day around 4 to 5 pm, she with P.W.1 when went to the house of Laxmipriya; from near the door, she saw accused stabbing on the belly of Laxmipriya by means of a knife for which, Laxmipriya raised hullah and fell down. She has even gone to state during cross-examination as to what apparels had been worn by Laxmipriya. However, she being not able to state the colour of those wearing apparels in our view is not of any fatal implication to discredit her version. On careful reading of the evidence of P.W.1 and P.W.2; we find those to be quite consistent with one another and free from any variance on material aspect to be taken note of in discrediting their version. Their presence is firmly established; when P.W.1 asserts so, the same receives corroboration from P.W.2 in all material particulars.
Next coming to the evidence of another star witness for the prosecution i.e. P.W.11, who is none other than the son of the accused and the deceased who was then at the time of examination was a boy of 11 years, it is seen that he having stated all about their separate stay from accused, has stated that on 08.10.2022, evening accused had come to the rented house in an intoxicated state and abused him and his mother, asked for money and then threatened to kill his mother. It is further stated that on the next day afternoon around 4 to 5 pm, accused again came and at that time, he was in Page 11 of 13 JCRLA No.43 of 2024 the middle room and his mother was in the kitchen. His evidence is that accused then dealt a blow by means of Chhuri (knife) on the belly of his mother which resulted her fall. It is further stated that after the stab being given on the belly, some other injuries were also inflicted by the accused on the throat of his mother by that knife. During cross-examination he has reaffirmed the same and most importantly the presence of the two aunties (meaning thereby P.Ws.1 and 2) in seeing the incident. For a boy of that age, who states that seeing the incident he lost his sense and was frightened and therefore, could not narrate the incident to anybody; cannot be taken as an unnatural conduct so as to stand on the way of acceptance of his evidence. We find his evidence to be quite natural. He has denied the suggestion of the defence to have not seen the incident. P.W.11, being the son of the accused and the deceased, it does not stand to reason that he would falsely implicate the accused, who is his father.
With the above prosecution evidence; even without further taking any aid from the evidence as to the factum of recovery of the knife at the instance of the accused pursuant to his statement while in police custody, we are of the considered view that the finding is inevitable that it is the accused who had stabbed his wife (deceased) and injured her, resulting her death. Therefore, we hold the accused liable for intentionally causing the death of his wife and his conviction on that score to be well in order.
Page 12 of 13 JCRLA No.43 of 2024
12. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 13th December 2023 passed by the learned Additional Sessions Judge, Aska in Sessions Trial Case No.98 of 2022, are hereby confirmed.
(V. Narasingh) (D. Dash)
Judge Judge
Narayan
Signature Not Verified
Digitally Signed
Signed by: NARAYAN HO
Reason: Authentication
Location: OHC
Date: 04-Sep-2024 16:46:26
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JCRLA No.43 of 2024