Delhi High Court
Gobinda Soren vs State Of Odisha on 21 August, 2013
Author: Sanju Panda
ORISSA HIGH COURT: CUTTACK
JAIL CRIMINAL APPEAL NO.10 OF 2004
(From the judgment dated 12.12.2003 passed by the learned Sessions Judge,
Mayurbhanj, Baripada in S.T Case No.20 of 2002.)
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Gobinda Soren ......... Appellant
-Vs-
State of Odisha ......... Respondent
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For Appellant : M/s. Gyanendra Ch. Swain
For Respondent : Addl. Government Advocate
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PRESENT:
THE HONOURABLE KUMARI JUSTICE S.PANDA
AND
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of Judgment : 21.08.2013
S.Panda, J. This appeal has been filed by the appellant challenging the
judgment dtd.12.12.2003 passed by the learned Sessions Judge, Mayurbhanj,
Baripada in S.T Case No.20 of 2002 convicting the appellant under Section 302
of I.P.C. and sentencing him to undergo imprisonment for life.
2. The case of the prosecution is that on 15.6.2001 the informant-
Mitu Patra along with one Dukhia Marandi-P.W.2 appeared before the
Thakurmunda Police Station and reported that P.W.2 told him regarding murder
of Mani Soren, wife of the appellant in the last night by some unknown persons
causing cut injury on her person as a result of which she died at the spot. The
informant by hearing this came to the house of the appellant and found the wife
of the appellant aged about 50 years was lying inside the house in a pool of
blood. Her chest, face and hands were cut by means of some sharp cutting
weapon. The informant asked about the matter to the appellant but he told that
the deceased was found sleeping on a cot and she herself fell down on the
ground from the cot. The appellant instead of informing his neighbourers went
to his son, who was staying at the adjacent locality. The blood stained shirt and
cloth of the appellant were lying at the spot. On the basis of the aforesaid
information the Officer-in-Charge of Thakurmunda P.S treating the same as an
F.I.R registered Thakurmunda P.S Case No.33 of 2001 and investigation was
taken up. After completion of investigation, charge sheet was submitted for
commission of offence under Sections 302 of I.P.C. against the appellant.
3. The prosecution in order to establish the charges examined as
many as ten witnesses and exhibited several documents which were marked as
Exts.1 to 13. The weapon of offence was marked as M.O.I. Out of the
witnesses examined by the prosecution P.W.1 was the informant and P.W.2
was the post occurrence witness before whom the appellant made extrajudicial
confession. P.Ws.3, 4 and 6 were the seizure witnesses. P.W.5 is the son of
the deceased and P.W.7 is the brother-in-law of the appellant. P.W.8 is the
mother-in-law of the appellant and P.W.9 was the Investigating Officer. P.W.10
was the Doctor, who conducted postmortem examination over the dead body.
The plea of the appellant was complete denial of the prosecution
case. The appellant has specifically stated in his statement under Section 313
Cr.P.C that though he was staying in the same house with the deceased, the
cause of death was not known to him and a false case has been lodged against
him.
4. The trial court relying on the evidence of the witnesses and the
evidence of P.W.10, the Doctor who conducted the post mortem examination
found the appellant guilty under Section 302 of I.P.C and convicted him
thereunder.
5. Learned counsel appearing for the appellant submits that in
absence of any direct evidence against the appellant for his alleged
involvement in the crime, the court below should not have accepted the
circumstantial evidence on record particularly when the circumstances are not
firmly established. He further submits that if the circumstances are taken
together it did not form a complete chain, therefore, benefit of doubt should be
extended in favour of the appellant, and as such the impugned judgment is not
sustainable in law and liable to be set aside. In support of his contention
learned counsel for the appellant relied on a decision of Bombay High Court in
the case of Laxman alias Laxmayya Gangaram Vs. State of Maharashtra
reported in 2012 CRI.L.J. 2826 wherein the Court held that admission or
confession of the accused in the statement under Section 313 of Cr.P.C. can
be acted upon and the Court can rely on this confession and proceed to convict
him but the conviction can be based solely on such admission or confession
provided the entire statement is inclupatory. The answers given admitting the
guilt in the examination of the accused under Section 313 of Cr.P.C can form
the basis of the conviction, surely before the accused is examined, he must be
informed that he can decline to give answers to the questions put to him and
that he will not render himself liable for punishment in case he refuses to
answer the questions or he gives false answers. He further relied on a decision
of the Supreme Court in the case of Rishipal Vs. State of Uttarakhand
reported in 2013 (123) AIC 92 (S.C.) wherein it is held that circumstances
sought to be proved against the accused have to be established beyond
reasonable doubt. Such circumstances must form complete chain leaving no
option but to hold that the accused is guilty of offence with which he is charged.
The theory of last seen together is not of universal application and may not
always be sufficient to sustain a conviction unless supported by other links in
the chain of circumstances.
6. Learned Addl. Government Advocate while supporting the
impugned judgment submits that the trial court after taking consideration the
evidence of the witnesses rightly convicted the appellant under Section 302 of
I.P.C, and the impugned judgment may not be interfered with.
7. Considering the rival submissions of the parties and after going
through the materials available on record, it appears that P.W.1 stated in F.I.R that
he has lodged the same before Thakurmunda P.S along with P.W.2 but P.W.2 in his
deposition has stated that they have lodged the F.I.R at the spot which creates
contradiction between the two witnesses. P.W.1 has further stated in his deposition
that there was dispute between the appellant and deceased but in cross-
examination he has stated that he has not known anything about appellant and
deceased prior to the occurrence. P.W.2 first time disclosed before the Court that
appellant has told him that he killed his wife and not asked to P.W.1 or not
mentioned in the F.I.R as he was the scriber of F.I.R. So it is a after thought story
and belated disclosure regarding the occurrence, which creates suspicion about the
truthfulness of his version. P.Ws.3, 4, 6, who were seizure witnesses have stated in
their deposition that they have signed the seizure list at the instance of police.
Though the appellant and deceased were staying together in one house but on the
date of occurrence no witness has seen that on the night of occurrence they are
staying together. The appellant had no pre-meditation to assault the deceased
rather the appellant on heat of passion inflicted such bodily injury, which likely to
cause death.
7.1 This Court in the case of Sania Dora alias Badnaik v. State of Odisha
reported in 1984 (1) OLR 665 held that where there had been a sudden quarrel and
on the spur of moment, without any premeditation and being incensed, the
appellant-accused who belonging to an aboriginal tribe dealt a blow which landed on
the head of the deceased as a result of which the deceased succumbed to the
injury, in those circumstances, the order of conviction and sentence passed against
the appellant be converted from Section 302 of I.P.C to one under Section 304,
Part-II of I.P.C.
7.2 Similar view was also been taken by another Division Bench of this
Court in the case of Mandangi Samburu v. State of Odisha reported in 1985 (1)
OLR 271 wherein the appellant, who belonged to Scheduled Tribe Community was
convicted for the offence under Section 302 of I.P.C. was converted to one under
Section 302, Part-II of I.P.C.
7.3 In another unreported Jail Criminal Appeal No.52 of 1997 disposed of
on 11.10.2007, this Court also took a similar view as the accused was a resident of
Nabarangpur, an interior part of the State and inhabitants of that area are tribal. It
was held that such people are of different mindset and they committed offences on
the spur of moment. The order of conviction under Section 302 of I.P.C and the
sentence of rigorous imprisonment for life passed against the appellant was set
aside, as the offence committed by the accused was not murder but culpable
homicide not amounting to murder, he was convicted under Section 304, Part-I of
I.P.C.
7.4 Therefore, the ratio decided in the aforementioned cases is squarely
applicable to the facts and circumstances of the case at hand, as in the said cases
the conviction under Section 302 of I.P.C was converted to under Section 304, Part-
II of I.P.C on two grounds, i.e. the appellants therein were tribal people and the
offences committed by them without any premeditation and on the spur of the
moment. In the present case the appellant being a resident of Thakurmunda, an
interior part of the State and being an aboriginal, on sudden provocation committed
the offence on heat of passion without premeditation.
8. Accordingly, the impugned judgment of conviction under Section 302
of I.P.C. and the sentence of rigorous imprisonment for life passed by learned
Sessions Judge, Mayurbhanj, Baripada in S.T Case No.20 of 2002 is set aside and
instead the appellant is convicted under Section 304, Part-I of I.P.C. and sentenced
to suffer rigorous imprisonment for the period already undergone. Since the
appellant is in custody, he be set at liberty forthwith, unless his detention is required
in connection with any other cases.
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S.Panda, J.
Dr. B.R.Sarangi, J. I agree.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack
21st August, 2013/ B.K.Panda
