Orissa High Court
Bikram Munda @ Gora vs State Of Orissa on 20 August, 2024
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.63 of 2010
In The matter of an Appeal under section-383 of the Code of
Criminal Procedure, 1973 and from the judgment and order of
sentence dated 20th November 2009 passed by the learned
Sessions Judge, Keonjhar in Sessions Trial Case No.138 of 2009.
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Bikram Munda @ Gora .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
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For Appellant - Mr. S.N. Mishra-4,
Advocate, (Amicus Curiae)
For Respondent - Mr. P.K. Maharaj,
Addl. Standing Counsel.
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE V. NARASINGH
DATE OF HEARING :24.07.2024 : 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 20th November 2009 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.138 of 2009 arising out of G.R. Case No.1125 of 2008 corresponding to Nayakote P.S. Case No.52 of 2008 of the file of learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Keonjhar.
Page 1 of 9JCRLA No.63 of 2010 The Appellant (accused) thereunder has been convicted for commission of offence under section-302/201 of the Indian Penal Code, 1860 (for short called as the IPC). Accordingly, the Appellant (accused) have been sentenced to undergo imprisonment for life and pay fine of Rs.5000/- each in default to undergo rigorous imprisonment for a period of two years for the offence under section-302 of the IPC and undergo rigorous imprisonment for five (5) years and to pay fine of Rs.2000/- in default to undergo rigorous imprisonment six (6) months for the offence under section-201 of the IPC.
2. Prosecution case is that on 25th December 2008, during morning, one Fakira Munda who is related to Mangal Munda (Informant-P.W.1), told Mangal that his aunt Sumi Munda (deceased) was lying dead behind her house with rope mark around her neck. Informant (P.W.1) then went to the spot and found the dead body of the deceased and saw the husband of the deceased namely, Nara Munda (P.W.4) sitting near the dead body. Being asked, Nara Munda (P.W.4) told that on the previous night, they had gone to attend a Sudhikriya ceremony, which was being performed in the house of Sarpanch Munda (since acquitted) and many other villagers had also gone there. Since the deceased did not return home, he (P.W.4) searched for her and did not find her. On 25th December 2008, morning it was found that the deceased was lying dead under the tree in her bari with Page 2 of 9 JCRLA No.63 of 2010 rope mark around her neck. Information in writing, being scribed by one Ghasinath, when was lodged by P.W.1 before the Inspector-In-Charge, Nayakote Police Station, the same was treated as FIR and upon registration of the case, the investigation was taken up.
In course of investigation, the I.O. (P.W.6) visited the spot, and prepared spot map (Ext.5). He (P.W.6) held inquest over the dead body of the deceased in presence of the witnesses and prepared report (Ext.6). Then he sent the dead body of the deceased to District Headquarters Hospital, Keonjhar under the dead body challan (Ext.7), and on the next day i.e. 26.12.2008, the I.O. seized one pesticide container and one axe. The I.O. (P.W.6) then arrested accused-Bikram Munda @ Gora Munda, and took him to the custody. While in police custody, it is stated that the accused stated to have kept one rope in his house and that if he would be taken to the place, he would give recovery of the same. The statement of the accused was then recorded and he then led the police and the witnesses to the house and brought out that rope and produced, which was seized under Ext.2. The I.O. (P.W.6) sent that rope to the Medical Officer, District Headquarters Hospital, Keonjhar and requested the Medical Officer under Ext.8 to examine it and opine, if it could cause the ligature mark and the death of the deceased. He (I.O.-P.W.6) had earlier sent the dead body of the deceased for postmortem Page 3 of 9 JCRLA No.63 of 2010 examination. He also sent the material objects to SFSL, Bhubaneswar for chemical examination through the Court. Investigation in this way continued and ultimately Final Form was submitted placing this accused and two others to face the trial for commission of offence under section-302/201/34 of the IPC.
3. Learned S.D.J.M., Keonjhar, having received the Final Form as above, took cognizance of the said offences and after observing formalities, committed the case to the Court of Sessions for Trial. That is how the Trial commenced by framing the charge for the said offences against the accused persons.
4. The prosecution in the trial has examined in total seven (7) witnesses. Out of whom as already stated, the Informant-Mangal Munda is P.W.1, who had lodged the F.I.R., Ext.4. P.W.2 is the son of the deceased, P.W.3 is the co-villager of the deceased and the accused persons and the seizure witness of the case, P.W.4 is the husband of the deceased whereas P.W.5 is the nephew of the deceased and witness to the seizure of the axe whereas P.W. 6 is the Investigating Officer, who had carried out the investigation of the case and submitted Final Form on completion of the investigation. The Doctor, who had conducted autopsy over the dead body of the deceased has been examined as P.W.7. Page 4 of 9 JCRLA No.63 of 2010
The prosecution besides piloting the evidence by examining the above witnesses has proved several documents which have been marked as Exts.1 to 11. Out of those, important are the F.I.R. (Ext.4), spot map (Ext.5, inquest repot (Ext.6) and postmortem report (Ext.11).
5. The defence plea is that of complete denial and false implication.
6. The Trial Court on examination of the evidence let in by the prosecution and upon their evaluation has finally found that the charges against the present accused for commission of offences under section -302/201/34 of the IPC have been established beyond reasonable doubt. Accordingly, the accused (Bikram Munda @ Gora) having been convicted for commission of those offences has been sentenced as aforestated.
7. Learned Counsel for the Appellant (accused) submitted that there is no direct evidence to connect this accused with the crime. He submitted that this accused had faced the trial with two others namely, Sarpanch Munda @ Kaira and Mutu Munda, the Trial Court upon examination of evidence and their analysis has acquitted those two others in holding that the prosecution evidence is wholly insufficient to fasten the guilt upon them in the said crime, that they had played any role in committing the murder of the deceased. He submitted that the Trial Court has Page 5 of 9 JCRLA No.63 of 2010 erred in relying upon the evidence so as to implicate the accused in the said offences by holding that it is he who had intentionally caused the death of the deceased when the evidence of the witnesses in implicating the other two has been disbelieved. He thus submitted that even though it is said that deceased met homicidal death, the Trial Court ought not to have held the accused to be responsible for the same in any manner. Taking great pain, he has taken us through the deposition of the prosecution witnesses in support of his submission. He, therefore, urged that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside.
8. Learned Additional Standing Counsel for Respondent-State submitted all in favour of the finding of guilt against the accused as has been returned by the Trial Court. According to him, the deceased was last seen with the accused and the time gap between that and the recovery of the dead body is very short. He thus submitted that when no such explanation is coming forward from the side of the accused; the conviction of the accused under section-302/201 of the IPC is well in order.
9. Keeping in view the submissions made; we have carefully read the judgment passed by the Trial Court and have extensively travelled through the evidence adduced by the prosecution witnesses i.e. P.Ws. 1 to 7. The documents admitted in evidence Page 6 of 9 JCRLA No.63 of 2010 and marked Exts.1 to 11 from the side of the prosecution have been perused.
10. The important witness for the prosecution is P.w.2, who states that when he was near the house of Ghasi Besra, this accused called his mother, made her to drink liquor and when he protested, accused told him to wait. The witness again said that after that he left the place and stayed in the house of Ghasi Besra; whereafter on the next morning, his mother was found lying dead. This witness in his previous statement before the I.O. (P.W.6) in course of investigation had not stated that the accused made her mother to drink liquor; which has been proved through the I.O. (P.W.6) that such was not the version of P.W.2 before him, although P.W.2 has asserted to have so stated. Now his evidence is only to the extent that accused had called his mother. He does not state that after being called by the accused, his mother followed the accused and the accused took his mother from that place. The normal response in that situation as expected from a son is lacking that seeking his mother there, he would be leaving without taking her care. It is then stated by P.W.4 that in the evening, he saw the accused, being dragged by the deceased, who was made to drink liquor. When P.W.2 does not state that the deceased was being dragged by the accused at any point of time, it is so stated by P.W.4. This P.W.4 is none other than the husband of the deceased and it is there in the evidence that he then slept in Page 7 of 9 JCRLA No.63 of 2010 his house. A rope being said to have been seized at the instance of the accused by leading the Police and other witnesses to his house, there is no further evidence to the connect that rope with the commission of the offences when the prosecution evidence through the Doctor (P.W.7) is that it was a death on account of asphyxia due to poison. This P.W.4 being the husband of the deceased, his conduct is quite unnatural that seeing his wife being dragged and forced to take liquor, he instead of raising any protest and rescuing his wife would leave the place and go to his house to sleep in the night.
The evidence of P.W.7 also run on the score that the death might be due to poisoning, while further stating that a man can die due to consumption of heavy amount of liquor. Thus, we find that the evidence of the prosecution witnesses that the deceased was last seen with the accused, when admittedly as per the evidence, there are many others in that place is not acceptable to relieve the prosecution of the initial burden of proof and place the same upon the accused to explain as to what happened thereafter.
11. For the aforesaid discussion of evidence, we are led to hold that the Trial Court is not right in holding that the incriminating circumstances against the accused taken together complete the chain of events in every respect which unerringly points towards the guilt of the accused without any missing links. Therefore, according to us, the judgment of conviction and order of sentence Page 8 of 9 JCRLA No.63 of 2010 impugned in this Appeal cannot be sustained and are liable to be set aside.
12. In the wake of aforesaid, the Appeal stands allowed. The judgment of conviction and order of sentence dated 20th November 2009 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.138 of 2009, are hereby set aside.
Since the Appellant (accused) namely, Bikram Munda @ Gora is on bail; his bail bond shall stand discharged.
(D. Dash), Judge.
V. Narasingh, J. I Agree.
(V. Narasingh),
Judge.
Narayan
Signature Not Verified
Digitally Signed
Signed by: NARAYAN HO
Reason: Authentication
Location: OHC
Date: 22-Aug-2024 18:46:43
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JCRLA No.63 of 2010