Orissa High Court
Gitanjali Pradhan vs State Of Odisha on 25 January, 2024
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No.419 of 2010
An appeal under section 374 Cr.P.C. from the judgment and
order dated 03.07.2010 passed by the Adhoc Additional Sessions
Judge (F.T.C.-II), Balasore in Sessions Trial No.102/206 of
2009/2007.
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Gitanjali Pradhan ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Miss Bini Mishra
Advocate
For Respondent: - Mr. Sonak Mishra
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE S.K. MISHRA
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Date of Hearing and Judgment: 25.01.2024
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By the Bench: The appellant Gitanjali Pradhan faced trial in the
Court of learned Adhoc Additional Sessions Judge (F.T.C.-II),
Balasore in Sessions Trial No.102/206 of 2009/2007 for
commission of offence punishable under section 302 of the
2
Indian Penal Code (hereinafter the >I.P.C.?) on the accusation
that on 05.04.2007 at about 7.00 a.m. in village Putina under
Bhograi police station in the district of Balasore, she committed
murder of one Puja Pradhan (hereinafter >the deceased?), who
was a baby girl of twenty five days.
The learned trial Court, vide impugned judgment and
order dated 03.07.2010, found the appellant guilty of the offence
charged and sentenced her to undergo rigorous imprisonment for
life and to pay a fine of Rs.2,000/- (rupees two thousand), in
default, to suffer rigorous imprisonment for six months.
Prosecution Case:
2. The prosecution case, as per the first information
report (hereinafter >F.I.R.?) (Ext.5) lodged by Sankar Padhan
(P.W.3) scribed by Umakanta Pradhan (P.W.9) before the Officer
in-charge of Kamarda police station on 05.04.2007, in short, is
that on that day at about 8.00 a.m. in the morning hours, he
returned home from the field and came to know from his sister-
in-law Swarnalata Pradhan (P.W.5) that she had been to wash
utensils to a nearby pond after letting her deceased baby girl to
sleep in the cradle on the verandah of her house and after
returning, she found that the deceased baby was missing from
the cradle. Another sister-in-law of the informant, namely, Arati
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Pradhan (P.W.6) also searched for the baby and the dead body
of the baby was found inside the room of the appellant from a
mouse hole having her throat cut. When P.W.6 confronted the
appellant, in the presence of Jyotsnarani Giri and Kabita
Pradhan, she admitted to have cut the throat of the deceased by
means of a sickle.
On the basis of such report, the Officer in-charge
(P.W.11) of Kamarda police station registered Kamarda P.S.
Case No.30 dated 05.04.2007 under section 302 of the I.P.C.
against the appellant. P.W.11 himself took up investigation of
the case. During the course of his investigation, he examined the
informant and sent message to the Superintendent of Police,
Balasore for deputation of Scientific Officer to visit the spot.
P.W.11 reached at the spot and during his spot visit, he found
the dead body of the deceased lying on the verandah of the
house of the appellant with cut injury on the neck. He held
inquest over the dead body in presence of the witnesses and
prepared the inquest report (Ext.1) and sent the dead body for
post mortem examination. During his spot visit, he found blood
stain marks on the floor of the house of the appellant so also on
the mouse hole and further found a sickle stained with blood was
lying on the floor of the house of the appellant. He prepared the
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spot visit report vide Ext.10 so also the spot map vide Ext.11.
The scientific team arrived at the spot on the same day and
collected the incriminating materials, prepared a report and the
photograph of the scene of crime was taken. The blood stained
earth, sample earth collected from the floor of the house so also
from the mouse hole, the sickle stained with blood, blood stained
clothes, blood stained saree of the appellant were seized by the
I.O. (P.W.11) on being produced by the Scientific Officer under
Ext.2. The appellant was arrested on 05.04.2007 and forwarded
to Court on the same day. The cradle was seized as per seizure
list Ext.4 and it was given in the zima of the father of the
deceased. The nail clippings and the blood sample of the
appellant were collected by the Medical Officer, District Jail,
Balasore, which were seized on 06.04.2007 as per seizure list
Ext.13 by the Investigating Officer. He received the post mortem
report (Ext.7), sent the weapon of offence i.e. sickle to the
Medical Officer for his opinion and made a query about the
possibility of the injury sustained by the deceased through such
sickle and received the query report. He sent the seized exhibits
to R.F.S.L., Balasore through J.M.F.C., Jaleswar and the C.E.
report vide Ext.15 was also received. On 22.07.2007, P.W.11
handed over the charge of investigation to S.I. of Police
CRLA No. 419 of 2010 Page 4 of 37
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Trilochan Sethi, who on completion of investigation, submitted
charge sheet against the appellant under sections 302 and 201
of the I.P.C.
Framing of Charges:
3. After submission of charge sheet, the case was
committed to the Court of Session after complying due committal
procedure. The learned trial Court framed charge against the
appellant as aforesaid. Since the appellant refuted the charge,
pleaded not guilty and claimed to be tried, the sessions trial
procedure was resorted to prosecute her and establish her guilt.
Prosecution Witnesses & Exhibits:
4. During the course of trial, in order to prove its case,
the prosecution has examined as many as eleven witnesses.
P.W.1 Tapan Kumar Pradhan is the uncle of the
deceased. He stated that on the date of occurrence, when he
returned from his agricultural land, he saw the deceased lying
dead sustaining cut injury on her neck and the persons present
there disclosed that the appellant had cut the neck of the
deceased. He is a witness to the inquest over the dead body of
the deceased and proved the inquest report marked as Ext.1. He
is also a witness to the seizure of blood stained earth, sickle
stained with blood, saree of the appellant etc. as per seizure list
CRLA No. 419 of 2010 Page 5 of 37
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Ext.2, one dibiri (chimini) and one cradle as per seizure lists vide
Ext.3 and Ext.4 respectively.
P.W.2 Srikanta Dutta is a co-villager of the
informant. He stated that on getting information, he came to the
spot and saw the deceased lying dead sustaining cut injury on
her throat and came to know that the appellant had cut the
throat of the deceased and the appellant also admitted that fact
before him.
P.W.3 Sankar Pradhan is the uncle of the deceased
and also the informant in the case. He stated about the appellant
admitting to have cut the throat of the baby on query.
P.W.4 Banka Behari Mohapatra is a co-villager of the
informant and a witness to the inquest over the dead body of the
deceased, but he did not support the prosecution case and was
declared hostile.
P.W.5 Swarnalata Pradhan is the mother of the
deceased baby girl. She stated that on the date of incident, not
finding her deceased daughter in the cradle, she enquired about
her whereabouts from the appellant, who denied having any
knowledge about it. She further disclosed the fact before P.W.6
and when P.W.6 enquired from the appellant, she confessed to
have killed the deceased. She further stated that the appellant
CRLA No. 419 of 2010 Page 6 of 37
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disclosed the reason behind the commission of the said crime to
be a quarrel between her and P.W.5.
P.W.6 Arati Pradhan is the aunt of the deceased
before whom the appellant admitted to have cut the throat of the
deceased and in her presence, the appellant brought the dead
body from inside a mouse hole in her bed room.
P.W.7 Kanhu Charan Pradhan is the father of the
deceased. He stated that he got information that his daughter
was murdered by the appellant and came home from the temple
and saw the deceased was lying in the front of the house of the
appellant and on return, he learnt from P.W.3 and others that
the appellant cut the throat of the deceased by sickle. He is also
a witness to the inquest (Ext.1).
P.W.8 Arun Kumar Swain was working as Scientific
Officer, D.F.S.L., Balasore, who collected the incriminating
materials from the spot and he prepared and proved his report
vide Ext.6.
P.W.9 Umakanta Pradhan is the nephew of the
appellant who stated that upon repeated queries, the appellant
admitted to have committed the murder of the deceased baby by
cutting her throat by means of sickle and put the dead body
inside a rat hole. He further stated that the appellant
CRLA No. 419 of 2010 Page 7 of 37
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subsequently went inside her bedroom and in his presence, she
brought out the dead body of the deceased. He also stated to
have seen a cut injury on the throat of the deceased. He is the
scribe of the F.I.R (Ext.5).
P.W.10 Dr. Bijay Ketan Das was the Pediatric
Specialist attached to Jaleswarpur C.H.C., Balasore, who
conducted the post mortem examination over the dead body of
the deceased and he proved his report vide Ext.7. He also
proved the query report vide Ext.8 which was prepared after
examining the sickle produced by the I.O.
P.W.11 Bhaktahari Das was the Officer in-charge of
Kamarda police station and also the Investigating Officer of the
case. He stated that on 22.07.2007, he handed over the charge
of investigation to S.I. of Police Trilochan Sethi, who on
completion of investigation submitted charge sheet against the
appellant.
The prosecution exhibited fifteen documents. Ext.1 is
the inquest report, Exts.2, 3, 4 and 13 are the seizure lists, Ext.5
is the F.I.R., Ext.6 is the report prepared by P.W.8, Ext.7 is the
post mortem report, Ext.8 is the query report, Ext.9 is the dead
body challan, Ext.10 is the spot visit reporting in crime detail
CRLA No. 419 of 2010 Page 8 of 37
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form, Ext.11 is the spot map, Ext.12 is the zimanama, Ext.14 is
the copy of forwarding report and Ext.15 is the C.E. Report.
The prosecution also proved three material objects.
M.O.I is the sickle, M.O.II is the seized saree and M.O.III is the
seized piece of cloth.
Defence Plea:
5. The defence plea of the appellant is one of denial. To
dislodge the prosecution case, two witnesses were examined on
behalf of the defence.
D.W.1 Prasant Kumar Das was working as the
Superintendent of District Jail, Balasore, who produced the
medical file of the appellant marked as Ext.A.
D.W.2 Dr. Umaprasad Biswal was working as
Psychiatrist at Circle Jail, Baripada, who was giving psychiatric
treatment to the appellant while she was lodged in the District
Jail, Balasore. He stated that on 25.06.07, he examined the
appellant and diagnosed that she was suffering from schizo-
depression. He further stated that after detection of such
condition, he started her treatment and gradually, she improved.
However, on 27.08.07, she again expressed desire to commit
suicide but subsequent to the treatment, her condition improved.
CRLA No. 419 of 2010 Page 9 of 37
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On 10.11.08, she was found completely free from psychiatric
symptoms. He also opined that the symptoms that were found in
the appellant could have been present earlier to the
examination.
Findings of the Trial Court:
6. The learned trial Court, after analysing the oral as
well as documentary evidence on record, came to hold that the
evidence of P.W.5 and P.W.6 regarding extra judicial confession
made by the appellant is reliable and trustworthy which
unmistakably show the appellant to be the perpetrator of the
crime. It was further observed that from the evidence of P.W.5
and P.W.6, it is proved that the dead body of the deceased was
recovered at the instance of the appellant from the place of
concealment i.e. inside the mouse hole filled with loose soil in
her bed room which was not visible to others. The learned trial
Court further held that the incriminating articles were sent for
chemical examination and as per the chemical examination
report (Ext.15), human blood was detected in all the articles and
specifically human blood of Group >B? was detected in the blood
stained earth collected from the mouse hole and on the printed
saree of the appellant. The learned trial Court summarized the
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circumstances which have been established by the prosecution to
fasten the guilt of the appellant as follows:-
(i) Immediately before the missing of the
deceased from the swing bed placed on the
verandah of their house, the appellant was seen
there;
(ii) The appellant made extra judicial
confession before P.Ws.5 and 6 who are related
to her as sisters-in-law admitting to have
committed murder of the deceased by cutting
her throat with a sickle;
(iii) Recovery of the dead body of the deceased
from the place of concealment i.e. from inside a
rat hole in the bed room of the appellant at her
instance;
(iv) Recovery of weapon of offence i.e. blood
stained sickle from inside the bed room of the
appellant;
(v) Seizure of blood stain earth from the floor
of the bed room of the appellant and seizure of
the blood stained wearing saree of the
appellant;
(vi) Human blood was detected on the blood
stained earth collected from the floor of the bed
room and from the weapon of offence (sickle)
and on the wearing saree of the appellant.
Further the blood stained earth seized from the
CRLA No. 419 of 2010 Page 11 of 37
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rat hole from where the dead body of the
deceased was recovered and the blood stained
wearing saree of the appellant were detected to
be of same blood group of >B?;
(vii) The deceased met with a homicidal death
and her dead body was detected with cutting of
her neck in the bed room of the appellant.
The learned trial Court further held that in view of
the admission of guilt by the appellant as per the evidence of
P.W.5 that she cut the throat of the deceased as P.W.5 had
quarreled with her, it can be said that motive of the appellant
behind the commission of the crime has been proved. The
learned trial Court further held that the appellant in her
statement under section 313 of Cr.P.C. has taken a plea of
complete denial and the contention raised by the learned defence
counsel that the appellant is entitled to the benefit of section 84
of the I.P.C. was turned down with observation that from the
acts and conducts of the appellant, it was palpable that at the
point of time of commission of the offence, she was not suffering
from any mental illness and she was in complete sense of
understanding of her acts and accordingly, the appellant was
found guilty under section 302 of the I.P.C.
CRLA No. 419 of 2010 Page 12 of 37
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Contentions of the Parties:
7. Ms. Bini Mishra, learned counsel appearing for the
appellant contended that the case is based on circumstantial
evidence. However, so far as the extra judicial confession, which
is deposed to by P.W.5, P.W.6 and P.W.9 so also admission of
her guilt by the appellant before P.W.2 and P.W.3 cannot be
acted upon as there is evidence on record that a huge number of
persons gathered at the scene of occurrence and the appellant
was tied and therefore, it cannot be said that such
admission/confession was a voluntary one. The learned counsel
further argued that the recovery of the dead body at the
instance of the appellant from inside a mouse hole in the
bedroom of the appellant is not acceptable as the I.O. (P.W.11)
has stated that the dead body was lying on the verandah of the
house of the appellant and there is no evidence as to who
removed the dead body from the mouse hole to the verandah.
According to her, seizure of the blood stained earth and sickle
from the bedroom of the appellant so also seizure of blood
stained saree of the appellant as has been deposed to by the
witnesses cannot itself be sufficient to find the appellant guilty of
the offence charged. It is further argued that the learned trial
Court has not properly considered the evidence on record and
CRLA No. 419 of 2010 Page 13 of 37
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turned town the benefit of section 84 of the I.P.C. According to
the learned counsel for the appellant, P.W.9 has specifically
stated that prior to the incident, the appellant was suffering from
mental illness and taking medicines and the evidence of the
doctor (D.W.2), who was working as a Psychiatric in Circle Jail,
Baripada and the medical file (Ext.A) of the appellant produced
from Balasore Jail indicates that she was of unsound mind and
she was diagnosed with schizo-depression and medicines were
prescribed to her. Learned counsel further argued that the
manner in which without any kind of pressure from anybody, the
appellant showed the place of concealment of the dead body to
others also indicates that she did not try to keep anything secret
and that shows her unsoundness of mind at the time of incident
and therefore, it is a fit case where benefit of doubt should be
extended in favour of the appellant, who is in custody since
05.04.2007 and in the meantime, sixteen years and nine months
have already passed.
Mr. Sonak Mishra, learned Additional Standing
Counsel appearing for the State of Odisha, on the other hand,
supported the impugned judgment and argued that the evidence
on record indicates that when P.W.6 accompanied the appellant
alone inside the room, she not only showed the place of
CRLA No. 419 of 2010 Page 14 of 37
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concealment but also removed the cauldron from the mouse
hole, brought out the dead body and it was found that the neck
of the child was cut and when an enquiry was made, she made
the extra judicial confession and admitted to have cut the neck
of the child by means of a sickle. It is further argued that the
appellant was not tied at that point of time nor any threat was
given to her. She was tied afterwards and therefore, it cannot be
said that the extra judicial confession was not voluntary. It is
further argued that the circumstances appearing on record
against the appellant are very clinching and the learned trial
Court has rightly come to the conclusion that the circumstances
taken together form a complete chain and it points unerringly
towards the guilt of the appellant. Placing reliance in the case of
Bapu @ Gujraj Singh -Vrs.- State of Rajasthan reported in
(2007) 8 Supreme Court Cases 66, it is argued that mere
abnormality of mind or partial delusion, irresistible impulse or
compulsive behaviour of a psychopath affords no protection
under section 84 of the I.P.C. When no plea of legal insanity was
taken in the accused statement and the appellant has the onus
of proving the same in view of section 105 of the Evidence Act
and her conduct prior to the occurrence, at the time of
occurrence and after the occurrence are very relevant factors, in
CRLA No. 419 of 2010 Page 15 of 37
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the case in hand, it appears that the appellant was behaving
very normally and maintaining all secrecy, she committed the
crime when no one was there nearby to mark her and also put
the dead body inside the mouse hole and keeping the same
covered with earth and a cauldron and then moving like a normal
person keeping her child in the lap shows that she was not
suffering from unsoundness of mind at the relevant time. The
learned counsel further contended that it cannot be said that at
the time of committing the act, the appellant was labouring
under any defect of reason from disease of mind so as not to
know the nature and quality of the act which she was doing or
that what she was doing, was either wrong or contrary to law
and therefore, the appeal should be dismissed.
Whether the deceased met with a homicidal death?:
8. Adverting to the contentions raised by the learned
counsel for the respective parties, let us assess the evidence on
record to see as to how far the prosecution has established that
the deceased met with a homicidal death.
Apart from the inquest report marked as Ext.1 and
the ocular evidence that the throat of the deceased was cut
deeply, Dr. Bijay Ketan Das (P.W.10), who conducted post
mortem examination over the dead body of the deceased on
CRLA No. 419 of 2010 Page 16 of 37
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05.04.2007, noticed one lacerated wound surrounding almost
whole neck extending through cervical vertebra upto the
posterior part of the skin of the neck, only lag of skin about 2=
posteriorly. He opined that the cause of death was due to the
injury to the vital organ like oesophagus, trachea and great
vessels followed by haemorrhagic shock. He further opined that
the time of death was within six to twelve hours of his
examination and he proved the post mortem report marked as
Ext.7. The Investigating Officer (P.W.11) produced one sickle,
which was seized from the spot, before the doctor (P.W.10) for
examination and opinion and after examining the sickle, P.W.10
gave his report indicating that the injury noticed on the dead
body of the deceased was possible by the sickle and the said
query report has been marked as Ext.8. Nothing has been
elicited in the cross-examination of the doctor to assail the above
findings and in fact, neither before the trial Court nor before this
Court, any challenge was made disputing the homicidal death of
the deceased. In view of the available materials on record,
particularly the inquest report (Ext.1), the ocular evidence, the
evidence of the doctor (P.W.10) and the findings of post mortem
report (Ext.7), we are of the view that the learned trial Court is
CRLA No. 419 of 2010 Page 17 of 37
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quite justified in arriving at the conclusion that the deceased met
with a homicidal death.
Appellant's presence in the vicinity at the time of
occurrence:
9. The appellant?s presence in the vicinity at the time of
occurrence is deposed to by P.W.5, who has stated that the
appellant asked her for tobacco and she gave her tobacco and
when she was inside her house, the appellant went to her house
after taking tobacco from her.
Whether extra judicial confession of the appellant can be
acted upon?:
10. Three witnesses who have stated about the extra
judicial confession are P.W.5, P.W.6 and P.W.9.
Law is well settled that extra judicial confession is a
weak piece of evidence and the prosecution has to prove that it
was a voluntary one and there was no element of any kind of
inducement or threat to the accused for making such confession.
Recently, while reiterating the above position of law, the Hon?ble
Supreme Court in the case of Prabhatbhai Aatbhai Dabhi
-Vrs.- State of Gujarat reported in (2023) SCC OnLine SC
1469 held that when prosecution relies upon the evidence of
CRLA No. 419 of 2010 Page 18 of 37
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extra judicial confession, normally, the Court will expect that the
evidence of the persons before whom extra judicial confession is
allegedly made, must be of sterling quality.
P.W.5 has stated that when she found her daughter
was missing from the cradle, it was about 7.30 a.m. to 8.00 a.m.
and at that point of time, the appellant was sitting on her
verandah adjacent to her house (P.W.5?s house) and she
enquired the whereabouts of the deceased from the appellant
but the appellant denied to have any knowledge and then she
(P.W.5) called her >Bada Jaa? Arati Pradhan (P.W.6), who
searched for the child. P.W.6 suspected the appellant and on
query, the appellant went inside her house and showed the dead
body of the child kept inside a mouse hole with a slit throat. She
further stated that when P.W.6 enquired from the appellant to
know about the cause of incident, the appellant disclosed that
she cut the throat of the baby as P.W.5 was quarrelling with her.
It has been elicited in the cross-examination of P.W.5 that the
appellant was having two daughters and one son and when
P.W.6 went inside the house of the appellant to search for the
deceased, she did not accompany her. In the cross-examination,
P.W.5 further stated that when the appellant admitted to have
cut the throat of the deceased, she was present along with other
CRLA No. 419 of 2010 Page 19 of 37
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persons about more than fifty. She stated that she could not
state as to whether the appellant was in a tied condition when
she made the extra judicial confession.
P.W.6 has stated that when she was informed by
P.W.5 about the missing of the deceased baby from the cradle,
she searched for the baby and enquired from the appellant and
then the appellant went inside her bed room and she followed
and inside the room, the appellant showed a place where a
cauldron was kept and underneath that there was some loose
earth and the appellant in her own hand removed those loose
earth and brought out the dead body of the deceased and it was
found that the neck of the child was cut and when she enquired,
the appellant admitted to have cut the neck by means of a
sickle. She further stated that the appellant was about to go
away from the room, but the persons present outside, detained
her. In the cross-examination, she has stated that four to five
times, she loudly asked the appellant about the daughter of
P.W.5.
Learned counsel for the appellant argued that it
appears from the evidence that the confessional statement by
the appellant was not a voluntary one. We are not inclined to
accept such submission inasmuch as there is no evidence of any
CRLA No. 419 of 2010 Page 20 of 37
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compulsion, inducement or threat given to the appellant at that
point of time. P.W.6, in her cross-examination, has stated that
she accompanied the appellant alone inside the house where the
confession was made. It has been confronted to her and proved
through the I.O. (P.W.11) that she had not stated that the
appellant was trying to go away from the spot. She further
stated that the persons present there tied the appellant and
when the appellant admitted to have cut the throat of the
deceased, other persons outside the room had seen her
admitting the guilt. Therefore, there is nothing to disbelieve the
evidence of P.W.6 so far as the extra judicial confession part is
concerned.
P.W.9 Umakanta Pradhan has stated that when the
search was made for tracing out the missing baby from the
cradle and the appellant was confronted, first she was reluctant
to give any reply and on being repeatedly asked, she confessed
to have murdered the deceased by cutting her throat by means
of a sickle and put the dead body of the deceased inside the
mouse hole in her bed room and then the appellant went to her
bed room and in their presence, brought out the dead body of
the deceased from inside the mouse hole and it was found that
the deceased had sustained cut injury on her throat. In the
CRLA No. 419 of 2010 Page 21 of 37
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cross-examination, he has stated that when the dead body was
brought out by the appellant, ten to twelve persons were present
and some outsiders apart from the family members were also
present. The evidence of P.W.9 that prior to entering into her
room, the appellant made extra judicial confession is not getting
corroboration from the evidence of P.W.6 inasmuch as P.W.6 has
stated that after the appellant entered into her bed room,
showed the mouse hole, removed the cauldron and the loose
earth, brought out the dead body and then she made the
confession to her. Therefore, it is difficult to believe the evidence
of P.W.9 in that respect.
Apart from the extra judicial confession of the
appellant as deposed to by P.Ws.5, 6 and 9, it appears that
P.Ws.2 and 3 have stated that the appellant admitted her guilt.
P.W.2 has stated that the appellant admitted her guilt before
others including him. In the cross-examination, P.W.2 has stated
that when he reached at the spot, he found a gathering of one
hundred persons there. P.W.3 has stated that when he reached
the spot, he saw a gathering of one hundred persons and the
appellant admitted her guilt in presence of the mob and after
confession, the appellant was tied. An admission is only a piece
of evidence and the weight to be attached to it depends upon the
CRLA No. 419 of 2010 Page 22 of 37
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circumstances under which it has been made. The admission
must be definite, clear and specific. Before accepting such
evidence, it must be established by cogent evidence what were
the exact words used by the accused. A confession or admission
is evidence against its maker, if its admissibility is not excluded
by some provision of law. Law is clear that a confession cannot
be used against an accused unless the Court is satisfied that it
was voluntary. At that stage, the question whether it is true or
false does not arise. If the facts and circumstances surrounding
the making of a confession appear to cast a doubt on the
voluntariness of the confession, the Court may refuse to act
upon the confession. What the appellants stated before the mob
in presence of P.W.2 and P.W.3 are not on record. The
surrounding circumstances under which such admission of guilt
was made by the appellant before the mob, even if we do not
place any reliance on such admission, but the same cannot be a
factor to discard the evidence of P.W.6 before whom alone the
appellant on her own had made extra judicial confession inside
her bed room after detection of the dead body. Therefore, we are
of the view that the learned trial Court has rightly placed reliance
on the evidence adduced by the prosecution relating to extra
judicial confession inasmuch as the appellant was tied much
CRLA No. 419 of 2010 Page 23 of 37
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after she made the confessional statement before P.W.6 and
there is no material on record that the confessional statement
was the result of inducement, threat or promise. Therefore,
there is no reason for us to discard the extra judicial confession
made by the appellant before P.W.6.
Recovery of the dead body from inside the bed room of
the appellant at her instance:
11. The recovery of the dead body from the place of
concealment i.e. from inside the mouse hole in the bed room of
the appellant at her instance is another factor which goes against
the appellant and the same has been deposed to by P.W.5 and
P.W.6. P.W.6 has stated that the appellant entered inside her
bedroom and she followed her and the appellant showed a place
inside her house where a cauldron was kept and beneath the
cauldron, some loose earth was found and the appellant in her
own hand removed the loose earth and brought out the dead
body of the deceased and it was found that the neck of the
deceased was cut. P.W.5 has also corroborated the evidence of
P.W.6. Nothing has been brought out in the cross-examination to
disbelieve such evidence. P.W.6 has stated that till the arrival of
police, the dead body was in the house of the appellant, whereas
P.W.11, the I.O. has stated that during his spot visit, he found
CRLA No. 419 of 2010 Page 24 of 37
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the dead body was lying on the verandah of the house of the
appellant with cut injury of the whole neck except the skin
portion of the back and he held inquest over the dead body and
prepared inquest report (Ext.1). Thus, even if there is
discrepancy as to when the dead body was removed from inside
the bedroom of the appellant to the verandah of her house, but
there is sufficient evidence that the dead body was recovered
from inside the mouse hole in the bed room of the appellant at
the instance of the appellant.
Seizure of blood stained sickle, blood stained wearing
saree, blood stained earth from inside the bed room of the
appellant and the C.E. Report findings:
12. P.W.5 has stated that she saw blood stained mark
inside the bed room of the appellant, blood stained mark on the
wearing saree of the appellant and one sickle stained with blood
was also seen there.
P.W.8, the Scientific Officer has stated that during his
spot visit, he found blood stained marks on the floor of the bed
room of the appellant, blood stained marks inside the rat hole in
the bed room of the appellant, one blood stained sickle lying on
the floor of the appellant, a piece of blood stained cloth and
printed saree lying on the floor of the bed room of the appellant
CRLA No. 419 of 2010 Page 25 of 37
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and he collected the physical clue and handed over the same to
the I.O. for chemical examination and prepared his report vide
Ext.6. In the cross-examination, he has stated to have put his
signature on the sealed packet after duly packing the exhibits
collected from the spot.
P.W.11, the I.O. has stated that during his spot visit,
he found blood stained marks here and there on the floor of the
house of the appellant so also in the rat hole and he also found
sickle stained with blood lying on the floor of the appellant and
blood stained clothes were lying on the floor of the house of the
appellant. He stated about the visit of the scientific team to the
spot and collection of incriminating materials from the spot by
such team and its production before him which he seized as per
seizure list Ext.2.
The sickle was seized by the I.O. (P.W.11) and it was
sent to the doctor (P.W.10), who examined the same and opined
that the injury on the throat of the deceased was possible by
such sickle. Moreover, the sickle was sent for chemical
examination and the C.E. Report (Ext.15) indicated that human
blood was detected on it. The C.E. Report (Ext.15) further
indicates that the blood stained earth was found to be containing
human blood and was of group >B? and the printed saree of the
CRLA No. 419 of 2010 Page 26 of 37
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appellant was also containing human blood of group >B?. Thus,
the prosecution has also proved these circumstances against the
appellant.
13. In view of the foregoing discussions, the prosecution
has established that the deceased baby girl was missing from the
cradle where she was placed by her mother (P.W.5) and the
appellant was nearby, that the appellant made extra judicial
confession before P.W.6 to have committed the murder of the
deceased and that the dead body of the deceased was recovered
from inside the mouse hole in the bed room of the appellant at
her instance. The weapon of offence i.e. sickle stained with
human blood was found from the bed room of the appellant.
Blood stained mark was also noticed on the floor of the bedroom
of the appellant and there were blood stains on the saree of the
appellant which were found to be human blood of group >B?. In
the factual scenario, we are of the view that the circumstances
which have been proved by the prosecution form a complete
chain which unerringly points towards the guilt of the appellant.
Whether the appellant is entitled to get the benefit under
section 84 of the I.P.C.?:
14. Now, the question that crops up for consideration is
whether the appellant is entitled to get the benefit under section
CRLA No. 419 of 2010 Page 27 of 37
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84 of the I.P.C.? Under section 105 of the Indian Evidence Act,
1872, the burden of proving the existence of circumstances
bringing the case within any of the exceptions specified in the
Indian Penal Code like unsoundness of mind lies upon the
accused.
Where the exception under section 84 of the I.P.C. is
claimed, the Court has to consider whether, at the time of
commission of the offence, the accused, by reason of
unsoundness of mind, was incapable of knowing the nature of
the act or that he is doing what is either wrong or contrary to
law. Entire conduct of the accused, from the time of the
commission of the offence upto the time, the sessions
proceedings commenced, is relevant for the purpose of
ascertaining as to whether plea raised was genuine, bonafide or
an after-thought one.
It is pertinent to note that in her examination under
section 313 of the Cr.P.C., the appellant has not taken any plea
of insanity. However, she has examined two defence witnesses,
who are the Superintendent, District Jail, Balasore as D.W.1 and
Psychiatrist of Circle Jail, Baripada as D.W.2 and proved her
medical file marked as Ext.A to get such benefit under section 84
of the I.P.C.
CRLA No. 419 of 2010 Page 28 of 37
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In the case of Dahyabhai Chhaganbhai Thakkar
-Vrs.- State of Gujarat reported in A.I.R. 1966 S.C. 1, it is
held that there is a rebuttable presumption that the accused was
not insane, when he committed the crime, in the sense laid down
by section 84 of the I.P.C., the accused may rebut it by placing
before the Court all the relevant evidence i.e. oral, documentary
or circumstantial, but the burden of proof upon him is no higher
than that rests upon a party to civil proceedings. Even if the
accused was not able to establish conclusively that he was
insane at the time he committed the offence, the evidence
placed before the Court by the accused or by the prosecution
may raise a reasonable doubt in the mind of the Court as regards
one or more of the ingredients of the offence, including mens rea
of the accused and in that case, the Court would be entitled to
acquit the accused on the ground that the general burden of
proof resting on the prosecution was not discharged.
Thus, even in the absence of specific plea regarding
unsoundness of mind taken in the accused statement, it does not
debar the Court from considering the availability of the benefit of
the same in favour of the accused if the materials are available
on record in that respect. It is not every and any plea of
unsoundness of mind that would suffice. The standard of test to
CRLA No. 419 of 2010 Page 29 of 37
30
be applied shall be of >legal insanity? and not >medical insanity?.
Whether there were deliberation and preparation for the act,
whether it was done in a manner which showed a desire for
concealment, whether after the crime, the offender showed
consciousness of guilt and made efforts to avoid detection and
whether after his arrest, he offered false excuses or made false
statements, the conduct of the offender before and after upto
the time of trial is admissible as presumptive evidence of his
mental condition when the act was committed. The absence of
motive for a crime, when corroborated by independent evidence
of the accused's previous insanity, is not without weight. Section
84 of the I.P.C. does not confer immunity from criminal liability
in every case of insanity of the accused. Along with the insanity,
there must be proof of the fact that at the time of commission of
the act, the accused was labouring under such a defect of
reason, from disease of the mind that he was incapable of
knowing the nature of the act or what he was doing was either
wrong or contrary to law. The mere fact that on earlier
occasions, the accused had suffered from mental derangement
will not be sufficient to bring his case within the exemption of
section 84 of the I.P.C. To put it differently, it must be shown
that the mental faculties of the accused were, as a result of
CRLA No. 419 of 2010 Page 30 of 37
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unsoundness of mind, so completely deranged as to render him
incapable of knowing the nature of his act or that what he was
doing was either morally wrong or contrary to law. To arrive at
such a conclusion, it is therefore necessary to ascertain the
behaviour, antecedent, attendant and subsequent conduct of the
accused that may be relevant in determining the mental
condition of the accused at the time of event, but not that
remote in time. It is difficult to prove the precise state of the
offender's mind at the time of the commission of the offence, but
some indication thereof can be ascertained by assessing the
conduct of the offender while committing it or immediately after
the commission of the offence. These behaviours are not
conclusive, but they certainly provide an insight to the mind of
the offender. Mere absence of motive for a crime no matter
however atrocious cannot in the absence of proof of legal
insanity bring the case within the ambit of section 84 of the
I.P.C. In medical science, there are many kinds of insanity, but
in law, insanity is of two kinds i.e. one which would exempt the
person from criminal responsibility and the other which would
not. Every type of insanity recognized in medical science is not
legal insanity. There can be no legal insanity unless the cognitive
faculty of mind is destroyed as a result of unsoundness of mind
CRLA No. 419 of 2010 Page 31 of 37
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to such an extent as to render the offender incapable of knowing
the nature of the act or that what he was doing was contrary to
law.
In the case in hand, it appears that when the offence
was committed, nobody was there near the place of occurrence
and the deceased was sleeping in the cradle and her mother
(P.W.5) had gone to the pond to wash utensils. The possibility of
committing the crime by the appellant in a secret manner is not
completely ruled out. The further steps taken by the appellant in
keeping the body in a concealed manner inside the mouse hole
of her bed room is also another relevant factor, which is to be
taken into account while considering the aspect of legal insanity.
Though P.W.6 has stated that the appellant was trying to escape
after making the confession, but the same cannot be accepted as
it was not stated in her previous statement recorded by the
Investigating Officer and no other witness has also stated in that
respect. P.W.9 has stated that one year prior to the incident, the
appellant was suffering from mental illness and was taking
medicine. The motive behind commission of the crime as stated
by P.W.5 was the quarrel of the appellant with her as the
appellant stated in her confessional statement before P.W.6 is
not acceptable as P.W.6 has not stated so. The appellant asked
CRLA No. 419 of 2010 Page 32 of 37
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for tobacco to P.W.5 at the time of occurrence and the latter
provided the same to her which rules out ill feeling between the
two. No other witness has stated about any kind of ill feeling
between the appellant and P.W.5. Therefore, it cannot be said
that there was any specific motive on the part of the appellant to
commit the crime. It cannot be lost sight of the fact that the
appellant was having two daughters and one son as stated by
P.W.5. When the appellant was forwarded to Court, she was
examined by the Jail Medical Officer and it was found that she
was not taking meal, behaving abnormally and not keeping her
clothes. The Medical Officer contacted the psychiatric doctor of
the Jail, who has been examined as D.W.2 and he has stated
that on receiving such telephone call, he advised to treat the
appellant by giving ante-psychotic medicine till his visit. He
further stated that when he visited Balasore Jail and examined
the appellant, he diagnosed that it was a case of schizo-
depression and he gave her treatment for which she gradually
improved. He further stated that the symptoms he found on the
date of examination of the appellant were likely to be present
prior to his examination and the duration may vary from one
week, one month to one year and the appellant was suffering
from schizo-depression, a condition in which features of both
CRLA No. 419 of 2010 Page 33 of 37
34
schizophrenia and depression are found and when he examined,
she was under hallucination and paranoid delusions and as per
the above symptoms, she was partially but grossly impaired in
respect of her judgment and perception. He further stated that if
the treatment is discontinued, then there would be chance of
recurrence of her earlier symptom. In the cross-examination, he
has stated that when he examined the appellant, she was crying,
she was sleepless and she was refusing to take food and insisting
to go home. The medical file of the appellant has been marked
as Ext.A in which the medicines which were prescribed from time
to time have been mentioned.
In the case of Shrikant Anandrao Bhosale -Vrs.-
State of Maharashtra reported in (2002) 7 Supreme Court
Cases 748, it was held as follows:
<10....Paranoid schizophrenia, in the vast
majority of cases, starts in the fourth decade
and develops insidiously....The patient usually
retains his memory and orientation and does not
show signs of insanity, until the conversation is
directed to the particular type of delusion from
which he is suffering. When delusions affect his
behaviour, he is often a source of danger to
himself and to others. (Modi's Medical
Jurisprudence and Toxicology, 22nd Edn.)=
CRLA No. 419 of 2010 Page 34 of 37
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Paranoid schizophrenia is a mental disease which can
recur and when a person is under paranoid delusion, he is not
fully aware of his activities and its consequences. In the case in
hand, D.W.2 has recorded a finding that the appellant was
having symptoms of paranoid delusions and he has also stated
that the symptoms were also likely to be present in the appellant
even one year before his examination. In such a scenario, it
appeals to the judicial mind of this Court that the appellant?s
reeling under the adverse effect of the schizo depressive
disorder, schizophrenia, hallucination and paranoid delusion at
the time of occurrence cannot be ruled out completely. It is also
no more res integra that an accused is required to prove her
insanity only on the touchstone of preponderance of probability
and not beyond all reasonable doubts. [Ref:- Prakash Nayi
-Vrs.- State of Goa : (2023) 5 Supreme Court Cases 673].
Conclusion:
15. In view of the foregoing discussions, even though
specific defence plea regarding unsoundness of mind has not
been taken by the appellant in her accused statement, but in
view of the evidence of P.W.9, the evidence of the two defence
witnesses i.e. D.W.1 and D.W.2 coupled with the medical file of
the appellant (Ext.A) and absence of any specific motive on the
CRLA No. 419 of 2010 Page 35 of 37
36
part of the appellant to commit the crime and the manner in
which she silently pointed out the place where the dead body
was concealed to P.W.6 without any kind of pressure on her and
the fact that after the crime, the appellant showed no
consciousness of guilt or made efforts to avoid detection, we are
of the humble view that the appellant is entitled to get the
benefit of section 84 of the I.P.C.
Accordingly, the Criminal Appeal is allowed. The
conviction of the appellant under section 302 of the I.P.C. is
hereby set aside.
We are apprised that the appellant is presently
lodged in the District Jail, Balasore. Taking into account the
peculiarity of this case, we direct that she shall be treated at
Fakir Mohan Medical College & Hospital, Balasore or any other
premier medical institute of the State or outside the State, if
there is any active symptoms of her unsoundness of mind and
for other therapies, the psychiatrist appointed in the Jail shall be
consulted and the appellant shall be kept under his treatment
until she is certified to be mentally fit by the doctor. It is open to
any of the family members and close relatives of the appellant to
move the learned trial Court for getting her out of custody. If
CRLA No. 419 of 2010 Page 36 of 37
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such a motion is made, the same shall be considered keeping the
welfare of the appellant in view.
Before parting with the case, we would like to put on
record our appreciation to Ms. Bini Mishra, learned counsel for
the appellant for rendering her valuable assistance towards
arriving at the decision above mentioned. This Court also
appreciates Mr. Sonak Mishra, learned Additional Standing
Counsel for ably and meticulously presenting the case on behalf
of the State.
The trial Court records with a copy of this judgment
be sent down to the concerned Court forthwith for information.
..........................
S.K. Sahoo, J.
.......................... S.K. Mishra, J.
Orissa High Court, Cuttack The 25th January 2024/RKMishra Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 07-Feb-2024 11:03:29 CRLA No. 419 of 2010 Page 37 of 37