Orissa High Court
Lokanath Jal vs State Of Odisha on 1 November, 2023
Bench: D.Dash, G.Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.4 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 26th July, 2012 passed by the
learned Sessions Judge, Kalahandi, Bhawanipatna, in Sessions
Case No.59 of 2010.
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Lokanath Jal .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.S.N.Mishra-4
(Advocate as Amicus Curiae)
For Respondent - Mr.S.N.Das,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G.SATAPATHY
Date of Hearing : 17.10.2023 : 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 26th July, 2012 passed by the learned Sessions Judge, Kalahandi, Bhawanipatna, in Sessions Case No.59 of 2010 arising out of G.R. Case No.91 of 2010 corresponding to Koksara Page 1 of 12 JCRLA No.4 of 2013 -2- P.S. Case No.17 of 2010 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Dharamgarh.
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.20,000/- (Rupees Twenty Thousand) in default to undergo rigorous imprisonment for two (2) years for commission of the said offence.
2. Prosecution Case:-
On 07.02.2010 afternoon, the parents of Aswini Kumar Jal (informant-P.W.3) had been to their agricultural field. As they did not return home, Aswini (Informant-P.W.3) proceeded to the spot. There his father Lokanath disclosed before him to have committed the murder of his wife, namely, Dura Jal, who happens to be the mother of Aswini (informant-P.W.3). Aswini (P.W.3) then saw the dead body of his mother near the nala. Having learnt as above, Aswini (informant-P.W.3) immediately lodged the written report being scribed by P.W.2 with the Sub- Inspector (S.I.) of Police of Koksara Police Station (P.W.10). The S.I. of Police (P.W.10), in the absence of the Officer-in-Charge (OIC) of said P.S., received the written report, treated the same as FIR (Ext.6) and registering the case, took up investigation. Page 2 of 12 JCRLA No.4 of 2013 -3-
3. In course of investigation, the Investigating Officer (I.O.- P.W.10) examined the Informant (P.W.3) and other witnesses as also recorded their statements under section 161 of Cr.P.C. He (P.W.10) having visited the spot, prepared the spot map (Ext.14). He too held inquest over the dead body of the deceased and prepared the reports to that effect (Ext.3, 4 & 5). The dead body of the deceased was sent for post mortem examination by issuing necessary requisition. Blood stained earth and sample earth have been seized by the I.O. (P.W.10) under seizure list (Ext.12). It was stated that the accused, while in police custody, gave the statement to have concealed the weapon and stated that if he would be led to the place, he would give recovery of the same. Pursuant to the statement, the accused is said to have led the police and other witnesses in giving recovery of the weapon, which was seized under seizure list (Ext.1). The seized incriminating articles were seized for chemical examination through Court. On 09.04.2010, the I.O. (P.W.10) handed over the charge of the investigation to the OIC (P.W.5), who re-examined the witnesses, visited the spot and on receipt of the post mortem report, completing the investigation, submitted the Final Form placing the accused to face the Trial for commission of the offence under section 302 of the IPC.
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4. Learned S.D.J.M., Dharamgarh, 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 eleven (11) witnesses during Trial. As already stated, the informant who happens to be the son of the deceased and the accused is P.W.3, who had lodged the FIR (Ext.6) scribed by P.W.2. P.Ws.1 and 4 are the witnesses to the statement of the accused in giving recovery of the weapon and. P.W.8 is the brother of the informant (P.W.3). The Doctor, who had conducted the autopsy over the dead body of the deceased, has been examined as P.W.7. The I.O., who has conducted the major part of the investigation has been examined as P.W.10 whereas the next I.O., who submitted the Final Form is P.W.5.
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 16. Out of those; important are the FIR (Ext.6); inquest report (Ext.3); the post mortem report (Ext.10) and the spot map (Ext.14). The Chemical Examiner's report has been admitted in evidence and marked Ext.17.
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6. The accused, having taken the plea of complete denial and false implication, has not tendered any evidence in support of the same. However, in his statement under section 313 Cr.P.C., he has said that he had murdered his wife.
7. Mr.S.N.Mishra-4, learned counsel for the Appellant (accused) submitted that there being no direct evidence to establish the complicity of the accused, the prosecution case is resting on two sets of evidence; first one is the extra judicial confession of the accused and the next is the recovery of weapon of offence, i.e., the tangia (M.O.I) at the instance of the accused pursuant to his statement before the I.O. (P.W.10) and other witnesses. He also submitted that the Trial Court has unnecessarily given emphasis upon the evidence relating to the above two sets when said evidence being properly scrutinized are not at all acceptable. He also submitted that the Trial Court has proceeded to judge the complicity of the accused completely on an erroneous view point of law that the confessional statement of the accused recorded by the police under section 27 of the Evidence Act is the best evidence. He further submitted that the statement of the accused recorded under section 313 Cr.P.C. ought not to have been taken as the substantive evidence and he also questioned its manner of recording in pointing out that when the accused. So, when that accused has gone to deny all Page 5 of 12 JCRLA No.4 of 2013 -6- other questions put to him and as such, answer at the end runs in complete contradiction. 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 all in favour of the finding returned by the Trial Court. While not disputing that no such direct evidence has been produced from the side of the prosecution to establish the charge against the accused, he contended that based on the statement of P.W.3 receiving corroboration from the evidence of other witnesses and the recovery of weapon of offence pursuant to his statement given while in police custody in leading the police and other witnesses to the particular place known to him, have been rightly accepted by the Trial Court to record the finding of guilt against the accused. He also submitted that even if it is not believed that the accused had confessed before P.W.3 and others to have committed the murder of his wife; when P.W.3 arrived and found this accused there and his mother (deceased) lying with severed head and body and there remains no evidence that anyone else was present; there being no explanation whatsoever falling from the mouth of the accused whose plea as to absence is not at all believable of evidence of Page 6 of 12 JCRLA No.4 of 2013 -7- P.W.3 and others; the conviction is recordable on such evidence only.
9. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.W.1 to P.W.11) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.13.
10. The prosecution having examined the Doctor (P.W.7), who had conducted the autopsy over the dead body of the deceased appears to have proved the nature of death of Dura to be homicidal. The Doctor (P.W.7) had noticed three lacerated injuries on the maxillary prominence to half inch below the left ear lobule; on the left shoulder joint. He too had noticed the injury to the oesophagus separated, trachea etc. The head was found to have separated from T-5 vertibra. As per his evidence, the death was homicidal in nature and it was on account of injury to the vital organs like spinal cord, oesophagus trachea with veins and arteries. The finding of the Doctor (P.W.7) have not at been challenged. In addition to this, we also find the evidence of the I.O. (P.W.10), who has deposed to have held in the inquest over the dead body of the deceased and his report (Ext.3), which reveals his all such notes in his language and other witnesses have also stated to have seen the deceased lying with such Page 7 of 12 JCRLA No.4 of 2013 -8- injuries. For all these evidence, we are left with no option but to say that the death of Dura was homicidal.
11. In order to address the rival submission, we are now called upon to examine the evidence on record.
P.W.1 is a co-villager, who has stated that when police basing upon the FIR (Ext.6) lodged by the son (P.W.3) came to the spot for investigation, he was present and there, the accused being present, confessed to have committed the murder of his wife. The evidence of this witness as to the confession of the accused when police asked the accused about the incident is no doubt admissible in view of the provision contained in section 25 of the Evidence Act.
P.W.2 has stated to have scribed the FIR (Ext.6) being lodged by P.W.3, who told that his father had murdered his mother.
P.W.3, who is the son of the accused and the deceased. He stated that around 5.30 p.m., when he went to the land where his parents had been to work, he saw the accused dealing blows by means of tangia upon the deceased, who was lying on the ground. It is stated by him that he remained at a distance and saw the accused going to the nearby well holding the blood stained tangia in his hand and washing that tangia. He has further stated that when he went near the accused, he told him to have killed Page 8 of 12 JCRLA No.4 of 2013 -9- the deceased and immediately thereafter left in a bicycle carrying that tangia. It has also been stated by P.W.3 that immediately when he turned his attention, he saw her mother (deceased) lying dead being tied by rope and her head had completely detached from her body. He has further stated that on returning home, he informed this fact to Dinger jal, Biswamantha (P.W.8) and others. The accused, as per the evidence of the informant (P.W.3) was then not traced out and he was ultimately found in the house of his sister in the nearby Village in the bordering Chhatisgarh State. So, he was brought and thereafter, the matter was reported by lodging the FIR (Ext.6). During cross-examination, he has stated that the accused was traced out around 9.00 p.m. in the night. Having said during cross-examination, he has gone to state that he had not stated before the police to have seen the assault by the accused upon the deceased. He has gone to explain that out of fear, he told lies before the police. It has also been stated by P.W.3 that he had not stated before the police to have seen the accused leaving on his bicycle from the spot carrying the axe. When P.W.2 states to have scribed the FIR (Ext.6), this P.W.3 does not name P.W.2 to have so scribed the FIR (Ext.6). This witness is stating that when they came after tracing out the accused, police had arrived at the spot and he is not in a position to show as to on whose report, police had come. The evidence of P.W.4, however, run in the same vein as that of P.W.1 when he says that the Page 9 of 12 JCRLA No.4 of 2013
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accused confessed to have committed the crime. The evidence of P.W.3 is acceptable that on his arrive, he saw the accused (father) and his mother (deceased) lying dead. It is not brought out from him (P.W.3) that anyone else was then present. It that situation, the accused is not coming forward to state that he was then absent in the village, which has no basis as is seen from the evidence on record.
P.W.8, however, has stated that when he with P.W.3 searched for the accused and found him in the village Jhakarpada, they brought him with them to their villager and then the accused, being asked, told that he had killed the deceased. The accused has been forwarded to Court on 9.2.2010 as stated by the I.O. (P.W.10).
Next, the I.O. (P.W-10) has stated that the accused, pursuant to his statement while in custody, had taken him and other witnesses to the place in giving recovery of the tangia (M.O.I) from inside the heap of chips, which he seized under seizure list (Ext.1). This has been stated by P.W.1 in very clear terms that the accused led the police and others including himself and gave recovery of the axe below the earth by digging out the earth and handed over the same to the police. In the FIR lodged by P.W.3, it has been stated that when P.W.3 arrived at the spot and saw the accused, that accused confessed to have committed the murder of Page 10 of 12 JCRLA No.4 of 2013
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his wife and then immediately, he saw the body of her mother (deceased) being separated from her body lying nearby.
We find no reason to disbelieve the evidence of P.W.3, who is none other than the son of the deceased and accused. His evidence receive corroboration from the evidence of other witnesses before whom he had disclosed about the incident. The evidence on record with regard to recovery of tangia at the instance of accused while in police custody from the place known to him about its seizure is quite acceptable. The evidence of the witnesses as regards the accused confessing before them as we have already discussed are not liable to be rejected when as none of them is found to have any reason to falsely implicate the accused. The accused having said that he was absent in the village is not even deriving any remote support from the evidence of any of the witnesses. But then there comes no explanation as to how all these happenings from the side of the accused.
On a conspectus of analysis of the evidence hereinabove, even without taking note of the statement of the accused recorded under section 313 Cr.P.C., this Court finds that the prosecution has proved the charge against the accused that he has committed the murder of his wife (Dura) beyond reasonable doubt. Page 11 of 12 JCRLA No.4 of 2013
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12. In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 26th July, 2012 passed by the learned Sessions Judge, Kalahandi, Bhawanipatna, in Sessions Case No.59 of 2010 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 12 of 12 JCRLA No.4 of 2013