Orissa High Court
Padman Khilla vs State Of Odisha on 24 July, 2023
Bench: D.Dash, S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.46 of 2016
In the matter of an Appeal under section 374 of the Code of
Criminal Procedure, 1973 and from the judgment of conviction
and order of sentence dated 19th November, 2015 passed by the
learned Sessions Judge, Koraput at Jeypore in Criminal Trial
No.191 of 2012.
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Padman Khilla .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mrs.Sonita Biswal
(Advocate)
For Respondent - Mr.S.K.Nayak,
Addl. Government Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
Date of Hearing : 14.07.2023 : Date of Judgment:24.07.2023
D.Dash,J. The Appellant, by filing this Appeal, assails the judgment of conviction and order of sentence dated 19th November, 2015 passed by the learned Sessions Judge, Koraput at Jeypore in Page 1 of 13 CRLA No.46 of 2016 {{ 2 }} Criminal Trial No.191 of 2012 arising out of G.R. Case No.396 of 2012 corresponding to Nandapur P.S. Case No.42 of 2012 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Koraput.
The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, 8the IPC9). Accordingly, he has been sentenced to undergo imprisonment for life.
2. On 19.07.2012 around 10 p.m. one Lokanath Guntha (P.W.2) submitted a written report (Ext.1) scribed by one Madhu Chapadi with the Inspector-in-Charge (IIC) of Nandapur Police Station stating therein that on 18.07.2012 around 10 p.m., his co-villager Smt. Hira Khilla (P.W.3) came to him and informed that after taking dinner her son-Padman Khilla, the accused and her daughter-in-law-Dullu Khilla, the deceased had slept in the night, but when she was knocking the door, no response was coming. Hearing this from Hira Khilla (P.W.3), who is the mother of accused and mother-in-law of the deceased, Lokanath (P.W.2) and other villagers, namely, Dhanajaya Guntha (P.W.4), Bhaskar Guntha and others went to the house of Hira Khilla (P.W.3). They knocked the door, calling the accused and the deceased. But there came no response from inside and the door was also not opened. Page 2 of 13 CRLA No.46 of 2016
{{ 3 }} So, they broke open the door by using a crowbar and then to their surprise, they found Dalu Khilar was lying on the floor with bleeding injuries on her head and waist and Padman Khilla, the accused, the husband of the Dollu was standing by her side holding a Tangia. When Lokanath (P.W.2), Dhanajaya (P.W.4) and others made their entry to the house, the accused told before them that since his wife was having illicit relationship with others, he committed her murder by striking her by means of that Tangia. The accused then threatened them to kill if they would force their entry to the room. Hearing such words from the accused and after watching the scene for some time, Lokanath (P.W.2), Dhanajaya (P.W.4) and others somehow tactically managed to catch hold the accused and snatched away the Tangia held by him. He then brought out the accused from the room and kept him under guard.
On 19.07.2012 morning, a village meeting being convened, the accused Padman confessed before the persons present in the said meeting to have committed the murder of her wife by suspecting her character.
Receiving the above written report (Ext.1) from Lokanath (Inforamnt-P.W.2), the I.I.C. treated the same as F.I.R. and registering the case, took up investigation. During investigation, the I.O. (P.W.7) examined the Informant (P.W.2) and other Page 3 of 13 CRLA No.46 of 2016 {{ 4 }} witnesses. He then visited the spot and prepared the spot map (Ext.9). Having conducted the inquest over the dead body, the I.O. (P.W.7) prepared the inquest report (Ext.2) in presence of the witnesses. He also seized the Tangia (M.O.I) stained with blood and sample earth as well as blood stained earth from the spot under seizure list (Ext.3). The dead body of Dallu then sent for post mort examination by issuing requisition. The accused was arrested and his wearing apparels were seized under seizure list (Ext.4). Similarly the wearing apparels of the deceased were also seized on production by the police personnel, who had carried the dead body for post mort examination under seizure list (Ext.5). The nail clippings of the accused were collected through the Doctor attached to the Community Health Centre (CHC), Nandapur and those were seized under the seizure list (Ext.11). The Tangia (Katari-M.O.I) was sent to the Finger Print Expert and so also other incriminating articles were sent for chemical examination through court. On completion of the investigation, the I.O. (P.W.7) submitted the final form placing the accused for the Trial for commission of offence under section 302/506 of the IPC.
3. Learned S.D.J.M., Koraput, on receipt of the above report, having taken cognizance of the offence, after observing all the Page 4 of 13 CRLA No.46 of 2016 {{ 5 }} formalities, committed the case to the Court of Sessions for Trial. That is how the Trial commenced against this accused by framing the charge for the above offence.
4. In the Trial, the prosecution has examined in total seven (7) witnesses. Out of them P.W.1 is the brother of the deceased and thus the brother-in-law of the accused. The co-villager of the accused, who had lodged the written report (Ext.1) at the Police Station has been examined as P.W.2 whereas P.W.4 is the other co-villager who had accompanied P.W.2 to the house of the accused after hearing from the mother of the accused who has been examined as P.W.3. The Sarpanch of the concerned Gram Panchayat has come to the witness box as P.W.5 whereas P.W.6 is the Doctor, who had conducted Post Mortem Examination over the dead body of the deceased and P.W.7 is the Investigating Officer.
The prosecution besides leading the evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Ext.1 to Ext.14. Important, out of those are the FIR marked Ext.1, the inquest report (Ext.2) and Ext.6 is the post mortem report whereas Ext.9 is the spot map. The report of the Finger Print Expert is Ext.12 and the report of the Chemical Examiner is Ext.14. That apart the Page 5 of 13 CRLA No.46 of 2016 {{ 6 }} seized Tangia, wearing apparels of the deceased and the accused have been produced during Trial as Material Objects (M.O.I to M.O.IV).
5. The accused in support of his plea of denial and false implication on account of enmity has examined himself with the permission of the court as D.W.1.
6. The Trial Court, relying upon the evidence of P.W.2, P.W.3 and P.W.4 and with the aid of the provision contained in section 106 of the Evidence Act in the absence of any explanation from the side of the accused as also, believing the extrajudicial confession before those witnesses has held the accused guilty of committing the murder of his wife Dallu.
7. As regards the nature of death of Dallu, we find from the evidence of P.W.6 that he had noticed five chop wounds on the scalp of Dallu of the size of 0.599 x 599 and there was fracture of three ribs, i.e., 10th, 11th and 12th of the right side thorax. On dissection as per the evidence of P.W.6 contusion on the brain and membranes were found when the right side lung injured and rupture of the right side splin, He has stated all such injuries to be ante mortem in nature and has also noted all these features as aforesaid in great detail in his report (Ext.6). As per his evidence with the use of seized Tangia (M.O.I) all these injuries were Page 6 of 13 CRLA No.46 of 2016 {{ 7 }} possible, which he has reported under Ext.7. In addition to the above, there is the evidence of P.W.7 who is the I.O. and held inquest over the dead body of the deceased and prepared the report (Ext.2) wherein he has noted all those in his own language. Other witnesses P.W.2, P.W.3 and P.W.4 have also stated to have seen the deceased with such injuries on her head etc. These evidence being let in from the side of the prosecution, as we find, from the side of the defence there is even no attempt to impeach the same. Therefore, we find the death of Dallu to be homicidal in nature.
8. Learned counsel for the Appellant (accused) submitted that the evidence of P.W.2, P.W.3 and P.w.4 ought not to have been relied upon by the Trial Court in holding the accused guilty of committing the murder of his wife Dallu. She submitted that when there is no eye-witness to the occurrence and as the evidence of P.W.2, P.W.3 and P.W.4 are not believable to the extent that they had seen the accused inside the house by the side of the deceased holding the Tangia when they opened the door by force, is not believable. She submitted that the evidence of P.W.2, P.W.3 and P.W.4 appear to be highly improbable that after killing his wife, instead of taking step to escape from the place, would be standing by her side in the room waiting for being so Page 7 of 13 CRLA No.46 of 2016 {{ 8 }} detected by others. She, therefore, submitted that the Trial Court has completely erred by taking the aid of provision of section 106 of the Evidence Act in holding that the prosecution, having proved the essential facts, since has not explained the circumstances within his special knowledge that how his wife received such fatal injuries, she is liable. She further submitted that the evidence as regards the extrajudicial confession coming from the lips of these P.W.2,3,4 and 5 is not at all believable. She submitted that when the accused had been detained and thereafter, taken to the meeting place and is said to have confessed, such confession cannot be said to be voluntary and that apart, even the confession before the witnesses who first saw him in the room as they say is not acceptable as in that situation the accused would voluntarily so express is extremely hard to believe.
9. Learned counsel for the State-Respondent submitted all in favour of the finding of guilt returned by the Trial Court in holding the accused guilty for commission of offence under section 302 of the I.P.C. in intentionally killing his wife Dalu (deceased). He submitted that the prosecution witnesses have no reason to falsely implicate this accused in commission of the said crime and they having stated everything in a natural manner Page 8 of 13 CRLA No.46 of 2016 {{ 9 }} when their evidence is wholly believable to the extent that when they broke open the door of the room, they saw the wife of the accused lying dead with bleeding injuries and the accused standing by her side holding a Tangia; in the absence of any explanation coming from the side of the accused, the Trial Court has rightly convicted the accused for commission of the offence as the author of such injuries upon the deceased. He submitted that even keeping aside the evidence as to the extra judicial confession of the accused, the finding of guilt is otherwise secured.
10. 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.7) and have perused the documents such as Ext.1 to Ext.14.
11. The deceased is the wife of the accused. The mother of the accused and mother-in-law of the deceased has been examined as P.W.3. Her evidence is to the effect that in the night when she returned home after witnessing television in the house of one Dhanu Guntha, she saw the door of the house to have been closed from inside. She has stated that having found the door to have been closed, she knocked the door and it was not opened. She then state to have called P.W.2 and other villagers to come to her house and they came and saw the door to have been closed from Page 9 of 13 CRLA No.46 of 2016 {{ 10 }} inside. It has been stated by her that those villagers knocked the door and when it was not opened, they broke open the door by means of an iron rod and all entered inside the house. Her positive evidence is that when they made entry to the house, they found the dead body of the deceased lying with bleeding injuries and the accused who is her son being present was then sleeping. She has also stated that the accused then told to have killed the deceased. The exact words spoken by the accused has also been uttered by this P.W.3 during her examination in the Trial, i.e., <MU MARIDELI, KEMITI MARIDELI JANA NAHI=. She has further stated that the mattress over which the deceased was lying was stained with blood. She of course says during cross- examination that the accused was mad. But none of the other witnesses have supported this version of that P.W.3 as regards the insanity of the accused and that had also not been stated by P.W.3 before any of the villager at any point of time and the evidence of P.W.3 thus firmly stand as there is no cross- examination on the above score.
When it is the evidence of P.W.3 that the door of the house being opened, the deceased was lying on the ground and the accused was sitting by her side and none others were present. That has also been so stated by P.W.2 who is the Informant. He has stated that this P.W.3 when called him and others, they came Page 10 of 13 CRLA No.46 of 2016 {{ 11 }} and seeing the door to have been closed from inside ultimately opened the door by using a crow bar and then saw the accused to be there holding a Tangia and his wife lying dead with bleeding injuries. According to his evidence, it was a small room and the blood spot was there on the wall and other places when Tangia held by the accused was also stained with blood. He has further stated about the accused confessing to have killed his wife. His evidence is that the accused was then somehow restrained and was tied by means of a rope after taking away the Tangia from him. It is the evidence that in the morning there was a meeting and then the F.I.R. was lodged with the police when the accused was arrested. This witness has stated during cross-examination that the mattress in the room was stained with blood and they brought the accused outside where they tied him by means of a rope. Nowhere this witness is stating that the accused was mentally unsound. This is also the evidence of P.W.4 who is said to have accompanied the P.W.2 and 3 to the house of the accused.
Given a careful reading to the depositions of all these three witnesses, we find absolutely no reason/material to discard their version that the door of the house being opened, they had seen the accused to be there holding a Tangia and the dead body of his wife then was lying on the floor with bleeding injuries. These facts having bene proved by the prosecution, now in view of the Page 11 of 13 CRLA No.46 of 2016 {{ 12 }} provision contained in section 106 of the Evidence Act as the accused has provided no explanation at all as to how it so happened that his wife received such injuries when she was in the house and when he during his examination as D.W.1 has simply stated that the allegation levelled against him are all false which on the face of the evidence of P.W.2,P.W.3 and P.W.4 cannot be believed for a moment as it is also not shown that any of these witnesses had even any remote reason to falsely implicate the accused, we find that the Trial Court is absolutely right in ruling that the prosecution has proved the charge against the accused beyond reasonable doubt. Having said as above, we are of the view that even by not touching the evidence with regard to the extrajudicial confession of the accused by accepting the submission of the learned counsel for the accused and keeping those beyond the arena of consideration, the finding of guilt returned by the Trial Court holding the accused guilty of committing the murder of his wife firmly stands.
On the conspectus of the analysis of the evidence made hereinbefore, this Court finds that the judgment of conviction in convicting the Appellant (accused) under section 302 of the IPC by holding the prosecution to have proved the charge against the Appellant (accused) beyond reasonable doubt has to sustain as also the order of sentence.
Page 12 of 13CRLA No.46 of 2016
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12. In the result. The Appeal stands dismissed. The judgment of conviction and order of sentence dated 19th November, 2015 passed by the learned Sessions Judge, Koraput at Jeypore in Criminal Trial No.191 of 2012 are hereby confirmed.
(D. Dash) Judge.
Dr. S.K. Panigrahi I agree.
(Dr.S.K. Panigrahi) Judge.
Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 25-Jul-2023 11:15:48 Page 13 of 13 CRLA No.46 of 2016