Orissa High Court
Bana @ Banamali Moharana vs State Of Orissa on 20 August, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.30 of 2010
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 18.03.2010 passed by the learned Sessions Judge,
Keonjhar in S.T. Case No.222 of 2008.
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Bana @ Banamali Moharana .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr. C.R. Sahu & P.K. Mishra,
Advocates.
For Respondent - Mr. T.K. Praharaj,
Standing Counsel.
CORAM:
MR. JUSTICE D.DASH
MR. V. NARASINGH
Date of Hearing : 15.07.2024 : Date of Judgment: 20.08.2024
D.Dash,J. The Appellant from inside the jail, has assailed the judgment of conviction and order of sentence dated 18.03.2010 passed by the learned Sessions Judge, Keonjhar in S.T. Case Page 1 of 10 JCRLA No.30 of 2010 No.222 of 2008 arising out of G.R. Case No.546 of 2008 corresponding to Keonjhar Sadar P.S. Case No.112 of 2008 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Keonjhar.
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.2,500/- (Rupees Two Thousand Five Hundred)
2. Prosecution case:-
In course of inquiry in Keonjhar Sadar Police Station Unnatural Death Case No.22 of 2008, the Assistant Sub-Inspector of Police (ASI-P.W.5) who was then attached to Palaspanga Police Beat House, found prima facie materials to believe that it was a case of murder of the wife of Banamali Moharana and that such crime had been committed by Banamali (husband of the deceased). He, therefore, in absence of the Inspector-In-Charge presented a written report before the Sub-Inspector of Police (S.I), then in charge of Keonjhar Sadar Police Station. He received the said F.I.R. and registering the case (Ext.5) directed the ASI of Police (P.W.5) to take up investigation.
In course of investigation, the Investigating Officer (I.O.- P.W.5) seized the incriminating materials and recorded the Page 2 of 10 JCRLA No.30 of 2010 statement of the witnesses. Autopsy over the dead body of the deceased had already been held in course of inquiry in the U.D. Case and, therefore, the Postmortem report was collected, and the accused was arrested. It is stated that the accused while in police custody, led the police and other witnesses after having disclosed to have kept concealed the stone which he stated to have used in causing the injuries upon the deceased leading to her death. So, saying, he finally gave recovery of that stone, which was lying under a Jamun tree of the village which was seized.
On completion of investigation, Final Form was submitted placing the accused to face the trial for commission of offence under sections 302 of the IPC.
3. Learned S.D.J.M., Keonjhar, on receipt of the above report, took cognizance of the said offences and after observing the formalities, committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the above offences against this accused.
4. In the Trial, the prosecution has examined in total five (5) witnesses. Out of whom, the A.S.I. of Police, who is the Informant and the I.O. is P.w.5. The Doctor, who had held autopsy over the dead body of the deceased, is P.W.1 whereas P.W.2 is an independent witness to the recovery of the said stone. Page 3 of 10 JCRLA No.30 of 2010
Besides the oral evidence, being piloted through the above witnesses; the prosecution has also proved certain documents, which have been admitted in evidence and marked Exts.1 to 8. Important of those are the FIR (Ext.5), Post Mortem Examination Report (Ext.1), statement of the accused leading P.W.5 and P.W.6 to the place in giving recovery of the stone (Ext.4) and the connected seizure list showing seizure of that stone (M.O.I) Ext.3.
5. The defence case is that of complete denial and false implication. In support of the said plea, the accused has examined himself as D.W.1.
6. The Trial Court upon examination of evidence and their evaluation has arrived at a conclusion that the prosecution has proved the charge against the accused beyond reasonable doubt. Accordingly, the accused has been convicted for committing the murder of his wife, namely, Padma and sentenced as afore-stated
7. Learned Counsel for the Appellant without impeaching the evidence and the conclusion of the Trial Court that the wife of the accused had met a homicidal death submitted that the conviction of this accused is based on nil evidence. According to him, there being no direct evidence to connect the accused with the crime, the Trial Court has relied upon the sole circumstance that the accused had given recovery of that stone while in police custody Page 4 of 10 JCRLA No.30 of 2010 pursuant to his statement by leading the police and other witnesses to that place and that part of the statement which is inadmissible in the eye of law has been relied upon. He submitted that the evidence of the independent witnesses (P.W.2) and also the I.O. (P.W.5) on that score do not pass through the test for admissibility of the same to conclusively say that the accused had the knowledge as to keeping of the said stone. He further submitted that even if it is believed for a moment that the accused had given recovery of that stone; that, itself, is not sufficient to hold the complicity of this accused without being coupled with other proven incriminating circumstances, when even no further evidence is available on record to connect that stone with the commission of that offence. According to him, merely saying with such stone the injuries found on the dead body can be caused would not be enough to fasten the guilt upon the accused in committing the murder of his wife. He next submitted that the false explanation of the accused upon which much emphasis has been given by the Trial Court cannot by itself stand as an incriminating circumstance and that is only to act as an additional circumstance to lend assurance to the finding of guilt, otherwise securable based on proven circumstances. He submitted that the said explanation can be additional link to the Page 5 of 10 JCRLA No.30 of 2010 claim. He, therefore, urged that the judgment of conviction and order of sentence are liable to be set aside.
8. Learned counsel for the State while supporting the finding of guilt against the accused as has been returned by the Trial Court contended that the accused is none other than the husband of the deceased and his explanation is that his wife had sustained those injuries by receiving the fall has not been proved by leading clear, cogent and acceptable evidence and, therefore, when he being in police custody pursuant to his statement has given recovery of that stone from the place which was known to him by leading the police and witnesses to that place, the Trial Court is right in fastening the guilt upon the accused when it has been proved through evidence that the injuries received by the deceased were possible by means of that stone. He also submitted that the accused having given false explanation as regards the happenings and the deceased sustaining injury; that stand to support the evidence of recovery as above.
9. Keeping in view the submissions made, we have carefully read the impugned judgment passed by the Trial Court. We have also travelled through the depositions of the witnesses (P.W.1 to P.W.5) and have perused the documents such as Ext.1 to Ext.8. Page 6 of 10 JCRLA No.30 of 2010
10. In-disputedly, there is no direct evidence to connect the accused with the crime as its perpetrator and that has been noted by the Trial Court in paragraph-10 of its judgment. The circumstance against the accused is that he had given recovery of one stone (M.O.-I) while in police custody by leading the police and witnesses to the place of recovery after having given his statement (Ext.4). When we come to examine the evidence on that score, we first of all find the evidence of P.W.2. He is the Ward Member of the village. It is his evidence that in his presence accused while in police custody disclosed before the police that he had concealed the stone in a paddy land of his village and that he would show that stone if taken to that place. He further states that having stated so, the accused led him (P.W.2), witnesses and Police to the paddy land, brought out that cement concrete piece and produced it before the police which was seized under Ext.3. He further states that before proceeding to the paddy land, the accused had given his statement which has been recorded vide Ext.4. This witness does not state as to where the accused disclosed before the police about the concealment of that stone. Although during the cross-examination, he states that Ext.4 was written at the police station, his further evidence is that the accused then had been handcuffed. He does not state as to wherefrom they started the journey, how and at what time. He Page 7 of 10 JCRLA No.30 of 2010 when states to have gone to the Police Station is not stating the time and he too is silent as regards the purpose of visit to the Police Station. He also is silent that whether he was called by the Police or had gone to the police for some other work of his own or of others or about this case and its development. Coming to the evidence of the I.O. (P.W.5), we find him to have stated as under:-
"The accused while in police custody confessed his guilt and made a statement that a piece of stone by which murder was committed was lying under a Jamu tree in village Kusumula. On such statement, I proceeded to the spot being led by the accused. The witnesses, namely, Kartikeswar Naik, Krushna Chandra Munda accompanied the accused to the spot."
When P.W.2 states that the accused had disclosed to have kept the stone (M.O.-I) in the paddy land, this P.W.5 states that accused had told that it had been kept under a Jamun tree. When P.W.2 states that the accused brought out that M.O.-I and produced it before the Police, P.W.5 states that on his arrival he saw a piece of stone lying under the Jamun tree and the accused brought that stone and produced before him which was seized under Ext.3. P.W.5 is silent as to where the statement of the accused (Ext.4) has been reduced into writing after he gave that statement. Furthermore, it is the evidence of P.W.5 that M.O.I was lying at a place which was at a distance of 500 meters from the Page 8 of 10 JCRLA No.30 of 2010 house of the accused. But the houses of others were within the distance of 300 to 400 meters. He further states that M.O.I was then lying in an open place and at that place no such blood stain had been noticed. It is not there in the evidence that the M.O.I was having any blood stain. Common experience goes not show that such stones are plenty available, and the villagers stacked them underneath a tree.
With the above state of affair in the evidence, we are the considered view that the prosecution has failed to establish the fact that M.O.I had been recovered at the instance of the accused pursuant to his statement while in police custody and that such keeping of the stone was only to his knowledge beyond reasonable doubt. This as when this circumstance relied upon by the Trial Court gets whittled down even if it is said for a moment that the explanation of the accused that his wife having fallen down from the bridge had sustained injuries on her head is false that, itself, would not be sufficient and basis to arrive at a finding as to the complicity of this accused.
11. Having said above, we find that there is no other evidence available on record, to stand to the aid of the prosecution to establish the charge against the accused beyond reasonable doubt. Accordingly, we hold that the judgment of conviction and Page 9 of 10 JCRLA No.30 of 2010 order of sentence passed by the Trial Court cannot be sustained and are liable to be set aside.
12. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 18.03.2010 passed by the learned Sessions Judge, Keonjhar in S.T. Case No. 222 of 2008 are hereby set aside.
(D. Dash) Judge.
V. Narasingh I agree.
(V. Narasingh)
Judge.
Himansu
Signature Not Verified
Digitally Signed
Signed by: HIMANSU SEKHAR DASH
Reason: Authentication
Location: OHC
Date: 22-Aug-2024 18:15:11
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JCRLA No.30 of 2010