Orissa High Court
Unknown vs State Of Odisha on 10 March, 2025
Author: G. Satapathy
Bench: S.K. Panigrahi, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA Nos.229 & 230 of 2015
(Both the Appeals U/S.374(2) of the Code of Criminal
Procedure, 1973 arise out of the same judgment dated
13.03.2015 passed by Shri Janab Mohammed Ajmal,
learned Sessions Judge, Rayagada in C.T. Case No.133
of 2011 arising out of G.R. Case No.160 of 2011
corresponding to Doraguda P.S. Case No.72 of 2011 of
the Court of learned S.D.J.M., Rayagada).
Chaitan Jhadia ... Appellant
(In CRLA No.229 of 2015)
-versus-
State of Odisha ... Respondent
Anta Majhi ... Appellant
(In CRLA No.230 of 2015)
-versus-
State of Odisha ... Respondent
For Appellants : Mr. S.K. Bhanjadeo, Advocate
(In CRLA No.229 of 2015)
Mr. B. Nayak, Advocate
(In CRLA No.230 of 2015)
For Respondent : Ms. G. Patra, Addl. PP
CORAM:
HON'BLE DR. JUSTICE S.K. PANIGRAHI
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :28.01.2025
DATE OF JUDGMENT:10.03.2025
G. Satapathy, J.
1. Since these two appeals arise out of one and same judgment, the same are heard together and CRLA Nos.229 & 230 of 2015 Page 1 of 14 disposed of by this common order with the consent of the learned counsel for the parties.
2. The Appellants by these two appeals have challenged the judgment dated 13.03.2015 passed by the learned Sessions Judge, Rayagada in C.T. Case No. 133 of 2011 convicting Chaitan Jhadia and Anta Majhi (hereinafter referred to as, "the Appellants") for commission of offence punishable U/Ss. 302/34 of IPC and sentencing each of them to undergo imprisonment for life, while acquitting them of other charges.
3. The prosecution case in brief is that the appellant-Anta Majhi had married to the deceased out of their courtship just one month prior to 11.07.2011, but he was constantly pressing the deceased to bring gold articles as dowry. However, the deceased did not return to her father's house and halted at Sargiguda on her way back, but the appellant-Anta fetched her and on the pretext of taking her back on the following day morning on 11.07.2011, he took the deceased to the outskirts of village Sargiguda, where he was joined by appellant-Chaitan and both of them raped the CRLA Nos.229 & 230 of 2015 Page 2 of 14 deceased and assaulted savagely by shoving an iron rod into her vagina resulting in her death, but they hanged her from a tamarind tree to give an impression that the deceased had committed suicide. 3.1. On this incident on 11.07.2011 at about 10 P.M., the father of the deceased-cum-PW.1 reported the matter under Ext.3(FIR) to PW.13, who in absence of regular IIC, registered Doraguda P.S. Case No. 72 of 2011 and took up the investigation of the case by visiting the spot on the following day in the morning and conducting inquest over the dead body under Ext.5. PW.13 had also complied all the other formalities of the investigation by examining the witnesses, making seizure of the wearing apparels of the deceased and rope and on 21.07.2011, she(PW13) also arrested the appellants-Anta Majhi and Chaitan Majhi. Accordingly, on completion of investigation charge sheet was submitted against both the appellants for commission of different and common offences.
CRLA Nos.229 & 230 of 2015 Page 3 of 14 3.2. On finding prima facie material, cognizance was taken by the learned J.M.F.C., Kashipur, who committed the case record to the Court of Sessions, who after finding sufficient materials proceeded against the appellants by framing charge against them for commission of offences U/Ss.376(2)(g)/302/34 of IPC and in addition, for offence U/S. 304-B of IPC against appellant-Anta Majhi. Accordingly, the trial proceeded and the prosecution in support of the charge examined altogether 15 witnesses, exhibited around 11 documents under Exts.1 to 11 and identified material objects under MO-I & II as against no evidence whatsoever by the defence. The plea of the defence in the course of trial was denial simplicitor and ignorance.
4. After appreciating the evidence on record upon hearing the parties, the learned trial Court by relying upon the evidence of PWs.6 & 7, last seen theory and medical evidence comes to a conclusion that the deceased had suffered a homicidal death and the appellants are responsible for causing death of the CRLA Nos.229 & 230 of 2015 Page 4 of 14 deceased. The learned trial Court, however, did not find any evidence against the appellant-Anta Majhi for committing dowry death and against the appellants for committing gang rape and accordingly, extended the benefit while acquitting the appellants for the said charges. Being aggrieved with their conviction for offence U/S.302/34 of the IPC, the appellants have preferred this appeal.
5. In the course of hearing of the appeal, Mr. S.K. Bhanjadeo, learned counsel for the appellant- Chaitan Jhadia has submitted that the learned trial Court has erroneously placed reliance on the evidence of PWs.6, 7 & 11 in convicting the appellant, but the evidence available on record never establishes the guilt of the appellant-Chaitan Jhadia for any offence, since the evidence does not reveal any motive or intention on the part of the Appellant for commission of crime. It is, however, further submitted by Mr. Bhanjadeo that even if the evidence on record are taken into consideration, it can be well said that PW.12 the witness to the last seen theory had neither uttered CRLA Nos.229 & 230 of 2015 Page 5 of 14 the name of Appellant-Chaitan Jhadia nor had PW.7 stated anything against him for committing murder of the deceased and no last seen theory can be pressed into service for convicting the Appellant-Chaitan Jhadia, since PW.12 has not stated anything against the Appellant-Chaitan Jhadia. Accordingly, Mr.Bhanjadeo has submitted that the Appellant- Chaitan Jhadia being innocent of the offence may kindly be acquitted of the charges.
On the other hand, Mr. Biswajit Nayak, learned counsel for appellant-Anta Majhi has submitted that not only the evidence of PW.7 is not reliable, but also the role of the Appellant in the crime has not been established by the prosecution by any admissible evidence, but the learned trial Court has relied upon the evidence of PW.7 as an eye witness to the occurrence and has convicted the Appellant, notwithstanding to the fact that PW.7 is not the eye witness to the occurrence and at best his evidence can be used to prove against the Appellant for causing disappearance of evidence and, therefore, the guilt of CRLA Nos.229 & 230 of 2015 Page 6 of 14 the Appellant having not been established in any standard, the learned trial Court should have acquitted the Appellant, but the Appellant having been convicted, this Court may kindly invoke the Appellate jurisdiction to rectify the error by acquitting the Appellant by allowing the appeal.
5.1 On the contrary, Ms. G. Patra, learned Addl. Public Prosecutor by taking this Court through the evidence of PWs.6, 7, 11 & 12 has submitted that not only the deceased was last seen with the Appellants, but also she has suffered a homicidal death and, thereby, the Appellants have to explain as to how the deceased died, but they instead of explaining the same, have been found by the evidence of witnesses to have committed the murder of the deceased as the evidence of doctor implies that the deceased suffered a homicidal death due to asphyxia and the evidence of PW.7 transpires that the deceased was hanged by the Appellants on a tamarind tree by tying her neck with a rope and, therefore, the conviction of the Appellants suffers from no illegality. CRLA Nos.229 & 230 of 2015 Page 7 of 14 Accordingly, Ms. Patra has prayed to dismiss both the appeals.
6. After having bestowed an anxious and careful consideration to the rival submissions upon perusal of record, since the deceased was stated to have been murdered, it would be appropriate and proper to refer to the medical evidence as tendered by the doctor-PW.14, who in his evidence has made it clear that on 11.07.2011 on police requisition, he conducted autopsy over the dead body of the deceased and found abrasion over posterior aspect of the body, deep oblique ligature mark around neck as also protruded tongue in addition to the internal findings of rupture of uterus, severe internal bleeding due to rupture of uterus and intestine, haemorrhagic shock in different parts of internal organs and bleeding from vagina. According to PW.14, the cause of death of the deceased was homicidal due to haemorrhagic shock and asphyxia. The opinion of the doctor as to cause of death was never challenged by any of the Appellants except unsuccessfully suggesting to the CRLA Nos.229 & 230 of 2015 Page 8 of 14 doctor that the death can occur due to manual self strangulation. It is, therefore, very clear that the prosecution has objectively established the cause of death of the deceased to be homicidal in nature and that too, due to haemorrhagic shock and asphyxia.
7. It is obviously true that the prosecution case not only rests on the evidence of eye witness, but also the evidence of last seen theory. In adverting to the last seen theory, this Court finds the evidence of PW.12 to be relevant since the same transpires that on the relevant day, the Appellant-Anta Majhi called and took the deceased to the house of Appellant- Chaitan at Dongasil and on the next day, he came to know from the villager that the Appellants after committing rape had killed the deceased. In the cross- examination of PW.12, it has been elicited that he called the deceased to go to their house, but the Appellant-Anta took her by dragging. It is, however, elicited from the mouth of PW.12 that he has not seen the Appellant-Chaitan at that spot at the relevant time, but at this point, the evidence of PW.7 appears CRLA Nos.229 & 230 of 2015 Page 9 of 14 to be very much relevant because he is not only an important witness to the occurrence, but also the witness to the last seen theory of Appellant-Anta Majhi with the deceased and his evidence transpires that on the relevant night before the day of occurrence, the Appellant-Anta Majhi and the deceased had slept on the verandah of his house and they left his house at about 5.00 A.M. early in the morning and at about 5.30 A.M., he had been to Pujaghata Nala of their village for ablution and found the Appellant-Anta and the deceased under a mango tree and the Appellant- Chaitan Jhadia came there with one rope and thereafter, the Appellants Chaitan and Anta tied the rope around the neck of the deceased and took her by lifting to a place under a tamarind tree and the Appellant-Anta climbed up the tree and Appellant- Chaitan lifted the deceased by catching of her leg and Appellant-Anta tied the one end of the rope to a branch of the tamarind tree while the other end of the rope was tied to the neck of the deceased and the deceased was accordingly hanged. The aforesaid CRLA Nos.229 & 230 of 2015 Page 10 of 14 evidence of PW.7 is not only important, but also the main item of evidence against the Appellants and PW.7 had stood firmly to his evidence in the cross- examination. It would not be incorrect to say that the Appellants had made a feeble attempt to contradict PW.7 by unsuccessfully putting suggestion to him to have not stated the aforesaid facts before the IO, but the same had not been confronted to the IO and, thereby, such effort of the Appellants remained insignificant. However, it was most important that the Appellants has elicited from the mouth of PW.7 that the alleged tamarind tree where the deceased was hanged is at a distance of 15 cubits from the spot where he was standing which is not only significant, but also makes his evidence to have seen the main part of the occurrence reliable.
8. It is of course true that the Appellants had tried to make inroad to the evidence of PW.7 by stating that he has not protested the act of the Appellants, but in a given situation of like this, different person may react differently, for example one CRLA Nos.229 & 230 of 2015 Page 11 of 14 person may face the incident courageously and protest the same, but some other person may not be able to muster courage to protest the criminal action of two persons in killing a lady and some person may also remain silent to observe because human instincts of different people are different. In addition, the evidence of PW.6 transpires that on the night before the occurrence, the Appellant-Anta Majhi and the deceased had slept on the verandah, but on the next day morning, he did find them to have gone away and at about 10.00 A.M., the dead body of deceased was found hanging from a tamarind tree. It is also elicited from PW.6 in the cross-examination that on the next day at about 6.00 A.M. in the morning, he woke up and found Appellant-Anta and the deceased are not present on the verandah of his house. Here one thing would strengthen the prosecution case by way of evidence that PW.7 had seen the Appellants tying the neck of the deceased and hanging her from a tamarind tree and the doctor in his evidence has made it clear that the deceased had suffered homicidal death due to CRLA Nos.229 & 230 of 2015 Page 12 of 14 "haemorrhagic shock and asphyxia" which clearly established that the deceased died of asphyxia and the aforesaid evidence strongly connect the role of the Appellant-Chaitan Majhi in the commission of murder of the deceased. It is, however, argued for the Appellant-Chaitan that he was neither present at the spot nor had the intention to kill the deceased and at best, he can be roped in this case with the aid of Section 201 of the IPC for disposing the dead body, but the evidence of PW.7 makes it very clear and established beyond all reasonable doubts that the deceased was hanged from a tamarind tree by the Appellants and both the Appellants had tied the neck of the deceased with one end of the rope and tied the other end of the rope to one of the branch of the tamarind tree by lifting the deceased and in the process, hanged the deceased, which by itself suggests the action of the Appellants to have proved their guilt for committing murder.
9. In the aforesaid circumstance of evidence, this Court does not find any error in appreciation of CRLA Nos.229 & 230 of 2015 Page 13 of 14 evidence by the learned trial Court in convicting the Appellants for murder of the deceased. Further, the Appellants having been sentenced to undergo imprisonment for life, which is the minimum sentence prescribed for the offence, no other ground is made out to interfere with their sentence.
10. In the result, both the criminal appeals in CRLA Nos. 229 & 230 of 2015 stand dismissed on contest, but in the circumstance, there is no order as to costs. The impugned judgment of conviction and sentence dated 13.03.2015 passed by the learned Sessions Judge, Rayagada in C.T. Case No. 133 of 2011 are upheld.
(G. Satapathy) Judge Dr. S.K. Panigrahi, J. I Agree.
(Dr. S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 10th day of March, 2025/S.Sasmal CRLA Nos.229 & 230 of 2015 Page 14 of 14