Orissa High Court
Criminal Procedure vs State Of Orissa on 1 November, 2023
Bench: D.Dash, G.Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.6 of 2013
In the matter of an Appeal under Section 383 of the Code of
Criminal Procedure, 1973 and from the judgment of conviction
and the order of sentence dated 21ST December, 2012 passed by
the learned Sessions Judge, Phulbani, in Sessions Trial No.61 of
2011.
----
Kulamani Kanhar .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Ms.Nibedita Mohanty
(Advocate)
For Respondent - Mr.S.N. Das,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G.SATAPATHY
Date of Hearing : 09.10.2023 : Date of Judgment : 01.11.2023
D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and the order of sentence dated 21ST December, 2012 passed by the learned Sessions Judge, Phulbani in Sessions Trial No.61 of 2011 arising out of G.R. Case No.378 of 2010 corresponding to Gochhapada Page 1 of 10 JCRLA No.6 of 2013 -2- P.S. Case No.39 of 2010 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Phulbani.
The Appellant (accused) thereunder has been convicted for committing the offence under sections 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.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for one (1) year for commission of the said offence.
2. Prosecution case is that some time towards the end of the year 2009, the accused, namely, Kulamani Kanhar had married Sita, the eldest daughter of Raghunath Kanhar and Nurupi (P.W.1). It is said that after two months of marriage, the accused and the deceased came and resided in the house of Raghunath. The accused was not doing any work. On 24.11.2010, Nurupi (P.W.1) with her two daughters, namely, Sita (deceased) and Susanti (P.W.2) went towards their land situated towards the eastern side of the village to bring paddy. The accused was then in the house. Dapandra Kanhar (informant-P.W.5), having returned home after finishing the ploughing operation in his field around 10.00 a.m., did not find the accused in the house. It was around 11.00, Binta Kanhar (P.W.7), the younger brother of Raghunath came and informed that in the morning, when he had Page 2 of 10 JCRLA No.6 of 2013 -3- been to plough his land near Kadami, Nurupi (P.W.1), Sita (deceased) and Susanti (P.W.2) were cutting paddy sheives in their land and the accused, having arrived there holding an axe, without telling anything to anyone, dealt blows by that axe on the neck of his wife-Sita and ran away towards the forest carrying that axe. Getting such information from Binta (P.W.7), the informant-Dapandra (P.W.7) and Dura (P.W.11) rushed to the place and saw Sita lying dead with cut injury on her neck and she was having profuse bleeding. At that time, Raghunath, his wife Nurupi (P.W.1) and Susanti (P.W.2) have arrived there. Dapandra (informant-P.W.5) then lodged a written report being scribed by Muliram (P.W.3) with the Officer-in-Charge of Gochhapada Police Station (P.W.13). Receiving the said written report, the OIC (P.W.13) treated the same as FIR (Ext.1) and registering the case, took up investigation.
3. In course of investigation, the Investigating Officer (I.O.- P.W.13) examined the Informant (P.W.5) and recorded his statement under section 161 of Cr.P.C. He having visited the spot, prepared the spot map (Ext.9). He held inquest over the dead body of the deceased in presence of the Executive Magistrate and prepared the report (Ext.2). The wearing apparels of the deceased and accused were seized under seizure lists; Ext.6 & Ext.7 respectively. The seized incriminating articles were seized and Page 3 of 10 JCRLA No.6 of 2013 -4- sent for chemical examination through Court. On completion of the investigation, the I.O. (P.W.13) submitted the Final Form placing the accused to face the Trial for commission of the offence under section 302 of the IPC.
4. Learned S.D.J.M., Phulbani, on receipt of the Final Form, took cognizance of said offence 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 aforesaid offence against the accused.
5. The prosecution, in support of its case, has examined in total thirteen (13) witnesses during Trial. As already stated, the informant who happens to be the uncle of the deceased is P.W.5, who had lodged the FIR (Ext.1) being scribed by P.W.3. P.W.1 is the mother of the deceased whereas P.W.2 is the sister of the deceased and the father of the deceased has been examined as P.W.6. P.W.7 is another uncle of the deceased. The Doctor, who had conducted the autopsy over the dead body of the deceased, has been examined as P.W.12. The I.O., at the end, has come to the witness box as P.W.13.
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 13. Out of those; important are the FIR (Ext.1); inquest report (Ext.2); Page 4 of 10 JCRLA No.6 of 2013 -5- and the post mortem report (Ext.8) and the spot map (Ext.9). The Chemical Examiner's report had been admitted in evidence and marked Ext.13.
6. The accused, having taken the plea of denial and false implication, has, however, not tendered any evidence in support of the same.
7. Ms.N.Mohanty, learned counsel for the Appellant (accused) submitted that Trial Court ought not to have relied upon the evidence of P.Ws.1, 2 & 7 as those are highly discrepant and run wholly inconsistent with one another as to the happenings of the incident, the role played by the accused and the surrounding circumstances. He submitted that the evidence of P.Ws.1, 2 & 7, being properly analyzed, it would reveal that they are not the truthful witnesses and suspicion arises as to their presence at the relevant time at the spot. He, therefore, submitted that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside.
8. Mr.S.N.Das, learned Additional Standing Counsel for the Respondent-State submitted that the evidence of P.Ws.1, 2 & 7 are quite consistent with one another as they have time and again stated to have seen the incident and despite cross-examination, the same have remained unshaken. According to him, no such material surfaces in their evidence to doubt their version for a Page 5 of 10 JCRLA No.6 of 2013 -6- moment as regards the accused arriving at the spot carrying an axe and suddenly dealing blows upon his wife-Sita on her neck by that axe and running away from the spot. He, therefore, submitted that when the above evidence receive further support from the medical evidence as regards the injuries noticed by the Doctor (P.W.12) during post mortem examination as also other witnesses, who had gone to the spot soonafter the occurrence, the Trial Court has very rightly convicted the accused for committing the murder of his wife-Sita.
9. Before proceeding further to address the rival submission and judge the sustainability of the finding of the Trial Court as against the accused holding him guilty as to have intentionally caused the death of his wife-Sita, when we look at the evidence of the Doctor (P.W.12), who had conducted autopsy over the dead body of the deceased, it is seen that during post mortem examination, he had noticed deep lacerated would of the size of 5 X 2.½ X 2.½ inch over back of the neck with clean sharp margin irregular ailment of cut linings of approximate of 2.½ length. The corresponding internal injury, i.e., fracture of vertebra C-1,C-2 membrence of spinal cord on back had also been noticed. Thus, having seen as above, he has stated that the death of Sita to be homicidal being on account of nerogonic shock due to the injury to the vital organ like spinal cord likely to have been caused by Page 6 of 10 JCRLA No.6 of 2013 -7- axe. When said is the evidence of the Doctor (P.W.12), we too find the evidence of the I.O. (P.W.13), who during inquest, had noticed such cut injury on the neck of the deceased and that has been the evidence of other witnesses, who immediately rushed to the spot, saw the deceased lying dead with such cut injury of her neck. In view of the above overwhelming evidence on record, when the findings of the Doctor are remaining unchallenged, we are left with no other option but to conclude that the death of Sita to be homicidal on account of the injury to the spinal cord.
10. Having said as above, let us proceed to examine the evidence of P.W.1. She is the mother of the deceased. As per the prosecution case narrated in the FIR (Ext.1), he had gone to the paddy field with her daughter-Sita (deceased) and Susanti (P.W.2) for cutting paddy crops. She has deposed that during the work, Sita went to the nearby land for bringing the water and at that time, she (P.W.1) reached there with meals for her daughters to eat. The accused is said to have then suddenly assaulted Sita by means of an axe on her back causing bleeding injury resulting her fall and instantaneous death. It is stated that when she and others raised hullah, accused ran away towards the jungle form the spot. Her further evidence is that her husband Raghunath, Dapandra (informant-P.W.5) and others arrived and then the FIR (Ext.1) was lodged at the P.S. This P.W.1 having been cross-examined, Page 7 of 10 JCRLA No.6 of 2013 -8- has further stated that accused came to the spot from the jungle side after she (P.W.1) arrived there with the meals. This assures her presence as to have been prior to the arrival of the accused. She has further stated that at the time of assault, deceased (Sita) was bringing water and she was plucking leaves at a distance of about 5 to 10 feet. The assault, according to her, was before they could take their meal. When she has stated that Sita had taken little rice at home before going to work, such evidence very interestingly find support from noting in the post mortem report (Ext.8) that in the stomach of Sita, semi digested food materials were very much there. Giving a careful reading to the entire evidence of this witness (P.W.1), we too find that time and again, she has denied the suggestion to have not seen the occurrence. She has further stated that the accused had given the blow by means of a tangia and has also stated Binta (P.W.7), who then was working nearby so also P.W.2. P.W.2 is none other than Susanti. She is younger sister of Sita. It is her evidence that on that day, she and her sister (deceased) had gone to the paddy field to harvest paddy and then Sita wanted to take some water and went to another land nearby just below their paddy field. P.W.1 shouted that accused killed Sita. So, P.W.2 says to have rushed to the spot with Binta (P.W.7) and saw P.W.1 to be very much present there and Sita then was found lying dead. When P.W.1 has stated that accused leaving with the axe had fled away, P.W.2 Page 8 of 10 JCRLA No.6 of 2013 -9- also states to have seen that the axe was lying nearby, which corroborative each other. Despite scathing cross-examination, we find no material to have been elicited to doubt her version on any account whatsoever. She even though is the sister of the deceased has very truthfully stated that hearing the shout of P.W.1, she had been to the spot. She appears to have not given any exaggerating version as to have seen the accused at the spot during that time. P.W.7 appears to have stated in a very natural manner as regards of such happenings. Binta (P.W.7) has also stated the same thing what P.W.2 has stated. She has further stated that when he arrived, she had seen the accused running away towards the hill. We find no such reason to discard her evidence by branding her to be unreliable witnesses.
The I.O. (P.W.13) has deposed to have visited the spot in course of investigation and seized from that place, the axe stained with blood under seizure list (Ext.3). This provide due corroboration to the evidence of P.Ws.2 & 7 that they had seen the axe lying there at the spot. P.Ws.1, 2 & 7, all have stated that the accused left the space by running towards the jungle throwing that axe at the spot. Evidence of all these three eye witnesses appear to be free from any such infirmity and we also find the same to have received corroboration not only from the medical evidence but also from the other evidence as to the seizure of Page 9 of 10 JCRLA No.6 of 2013
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tangia (axe), immediate disclosure about the incident to other witnesses including the informant, who arrived at the spot.
11. On a conspectus of analysis of the evidence hereinabove, this Court finds that the prosecution has proved the charge against the accused that he has committed the murder of Sita beyond reasonable doubt.
12. In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 21ST December, 2012 passed by the learned Sessions Judge, Phulbani, in Sessions Trial No.61 of 2011 are hereby confirmed.
(D. Dash) Judge G.Satapathy, J. I Agree.
(G.Satapathy) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 02-Nov-2023 17:18:01 Page 10 of 10 JCRLA No.6 of 2013