Orissa High Court
From Judgment And Order Dated ... vs State Of Odisha on 19 October, 2022
IN THE HIGH COURT OF ORISSA, CUTTACK.
JCRLA No. 32 Of 2017
From judgment and order dated 12.08.2016 passed by the
Additional Sessions Judge, Bonai in Sessions Trial No.39/78 of
2014.
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Manglu Singh ........ Appellant
-Versus-
State of Odisha ........ Respondent
For Appellant: - Mr. Biswajit Nayak
(Amicus Curiae)
For State: - Mr. Arupananda Das
Addl. Government Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 19.10.2022
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S. K. SAHOO, J. The appellant Manglu Singh faced trial in the Court of
learned Additional Sessions Judge, Bonai in Sessions Trial
No.39/78 of 2014 for the offence punishable under section 302 of
the Indian Penal Code (hereafter 'I.P.C.') on the acquisition that
on 07.12.2013 at about 8.00 a.m at village Tamada (Kachinda),
he committed murder of his wife Mangiri Munda (hereafter 'the
deceased').
// 2 //
The learned trial Court vide impugned judgment and
order dated 12.08.2016, though found the appellant not guilty
under section 302 of the I.P.C., however found him guilty under
section 304 Part-II of the I.P.C. and sentenced him to undergo
rigorous imprisonment for seven years and to pay fine of Rs.
5,000/-(rupees five thousand), in default, to undergo rigorous
imprisonment for six months.
2. The prosecution case, as per the first information
report (Ext.1) lodged by Biswanath Singh (P.W.1), the son of the
deceased is that on 07.12.2013 at about 08.30 a.m. he received
message that the appellant, who is his father, quarreled with the
deceased and out of anger, assaulted the deceased with a tangia
in the courtyard of the house at about 8.00 a.m. as a result of
which the deceased died. The informant rushed to his house and
found the deceased lying dead with bleeding injuries in the
courtyard and the appellant was present near the deceased and
he confessed to have killed the deceased by means of a tangia.
On the basis of such written report, in absence of the
Officer in-charge, P.W. 14 Barendra Sial, the S.I. of Police
attached to Chendiposh Police Station registered P.S. Case No.
49 dated 07.12.2013 and he himself took up investigation of the
case. During course of investigation, he examined witnesses,
visited the spot, prepared the inquest report over the dead body,
// 3 //
sent the dead body for post mortem examination, seized the
sample earth as well as blood stained earth from the spot and
seized the tangia, which was lying at the spot under seizure list
Ext. 2. He arrested the appellant and forwarded him to Court on
08.12.2013. The I.O. also seized the wearing apparels of the
deceased as well as the appellant, blood sample and nail
clippings of the appellant, sent the seized axe to the medical
officer for his examination and received opinion as well as post
mortem examination report. He also sent the exhibits for
chemical analysis to R.F.S.L., Sambalpur and on completion of
investigation, he submitted charge sheet on 21.01.2014 under
section 302 of the I.P.C. against the appellant.
3. After submission of charge sheet and commitment of
the case to the Court of Session, on 04.04.2015 the learned trial
Court framed charges against the appellant as already stated and
since the appellant refuted the charges, pleaded not guilty and
claimed to be tried, the sessions trial procedure was resorted to
prosecute him and establish his guilt.
4. During course of trial, in order to prove its case, the
prosecution examined fourteen witnesses.
P.W.1 Biswanath Singh, who is the son of the
appellant, is the informant of the case. He stated about the extra
// 4 //
judicial confession made by the appellant and also proved the
F.I.R. (Ext. 1).
P.W.2 Prahallad Singh, who is a co-villager of the
appellant, is a post occurrence witness and he stated that he
heard from the villagers that the appellant killed the deceased by
means of an axe.
P.W.3 Raghunath Singh and P.W.4 Fulmani Singh,
who are co-villagers of the appellant, are post occurrence
witnesses.
P.W. 5 Rasanand Singh, who is one of the sons of the
appellant as well as the deceased, is a post occurrence witness.
He is a witness to the inquest report as per Ext. 3.
P.W. 6 Theophil Oram, is the scribe of the F.I.R. (Ext.
1).
P.W. 7 Birsa Munda and P.W. 12 Raju Bhokla have
not supported the prosecution case and were declared hostile.
P.W. 8 Edward James Gudia stated that he did not
know the details of the death of the deceased and after the
death, the police called him to the place of occurrence where the
dead body of the deceased was lying.
// 5 //
P.W. 9 Guru Charan Singh denied to have any
knowledge regarding the death of the deceased but he is a
witness to the inquest report (Ext. 3).
P.W. 10 Efrem Beck and P.W. 13 Isak Kullu were the
police constables attached to Chendiposh police Station and they
are witnesses to the seizure of wearing apparels of the deceased
and that of the appellant as per seizure lists Ext. 4 & 5
respectively. They are also witnesses to the seizure of blood
sample of the appellant as per seizure list Ext. 6.
P.W. 11 Dr. Abanindra Mishra, who was the medical
officer of C.H.C., Lahunipada, conducted post mortem
examination over the dead body of the deceased and submitted
his report as per Ext. 7. He has also submitted his opinion as per
Ext. 8 with regard to the axe produced by the I.O. He has also
prepared the report regarding collection of blood sample, nail
clipping and tuft hair of the appellant as per Ext. 9.
P.W. 14 Barendra Sial is the investigation officer of
the case.
No witness was examined on behalf of the defence.
The prosecution exhibited twelve documents. Ext.1 is
the F.I.R., Exts. 2, 4, & 6 are the seizure lists, Ext.3 is the
inquest report, Ext.7 is the post mortem report, Exts.8 and 9 are
// 6 //
the medical opinion and report of the doctor (P.W.11)
respectively, Ext.10 is the formal F.I.R., Ext.11 is dead body
challan and Ext.12 is the forwarding report of the appellant.
5. The defence plea of the appellant was one of denial.
6. The learned trial Court after analyzing the evidence of
P.W. 1, came to hold that P.W. 1 came back to his house and
found the dead body of the deceased lying inside the house and
the appellant was sitting by the side of the deceased who
voluntarily told him that he had killed the deceased by assaulting
her with a tangia during a family quarrel. Learned trial Court
further held that the circumstance never suggests that there was
coercion or threat on the appellant to make such confession and
it is also abundantly clear that the person before whom the
appellant has confessed his guilt was his son and normally one
can repose confidence on his kith and kin while making such
confession. The learned trial Court further held that no other
animosity between the son and the appellant, who is his father,
was established by the defence to discredit the evidence of P.W.
1 and accordingly, the learned trial Court opined that the
confession was certainly voluntary and truthful, which inspires
confidence and the circumstance of the case also corroborates
the fact of confession of the appellant as claimed by P.W. 1. With
// 7 //
regard to the weapon of offence i.e. the axe which was produced
before the doctor (P.W.11) who noticed blood stained marks on
it, learned trial Court observed that the said fact equally
corroborates to the fact of killing of the deceased by such
weapon. Accordingly, the learned trial Court believed that the
appellant had killed his deceased during a family quarrel by
assaulting her brutually with a tangia and convicted the appellant
as aforesaid.
7. Since the engaged counsel for the appellant did not
appear to argue the appeal, Mr. Biswajit Nayak, Advocate was
engaged as the Amicus Curiae for the appellant and he was
supplied with the copy of the paper book and granted time to
prepare the case properly. He placed the impugned judgment
and evidence and contended that there is no direct evidence in
this case relating to the assault on the deceased by the appellant
and the only evidence available on record against the appellant is
the so-called extra judicial confession before P.W. 1, his son.
Learned counsel further submitted that since no motive behind
the commission of the crime has been established and the extra
judicial confession is a weak piece of evidence, the conviction of
the appellant is not justified and therefore, the appeal should be
allowed.
// 8 //
Mr. Arupananda Das, learned Addl. Government
Advocate appearing for the State of Odisha, on the other hand,
supported the impugned judgment and contended that the extra
judicial confession has been made voluntarily by the father
before his son and there is nothing available on record that there
was any motive on the part of P.W.1 to implicate his father (the
appellant) in a false case. He further submitted that the presence
of the appellant near the deceased, the fact that the occurrence
took place in the courtyard of the house when no other family
members were present and the weapon of offence was also
seized at the spot, are itself clinching evidence against the
appellant and therefore, the learned trial Court rightly found the
appellant guilty and therefore, the appeal should be dismissed.
8. Adverting to the contentions raised by the learned
counsel for the respective parties, let me first deal with the
evidence adduced by the prosecution as to whether it has
successfully proved that the deceased met a homicidal death or
not.
Apart from the inquest report (Ext.3), it appear from
the evidence of P.W.11, the doctor who conducted post mortem
examination over the dead body of the deceased on 08.12.2013
that he noticed (i) incised injury length 6 c.m. x breadth 4 c.m. x
depth 5 c.m. over the nape of the neck on posterior aspect at the
// 9 //
middle of neck and the injury has cut through all muscles and all
vessels even vertebral column on its way, (ii) incised injury
length 4 c.m. x depth 2 c.m. x breadth 1 c.m. above the first
injury has cut through superficial muscles on small vessles and
injury wound length 1 c.m. x breadth ½ c.m. x depth ½ c.m.
over right shoulder superficial incised wound and he opined that
all the injuries are ante mortem in nature and might have been
caused by sharp cutting weapon like axe and the cumulative
effect of the injuries is sufficient in ordinary course of nature to
cause death. The post mortem report has been marked as Ext.7.
Nothing has been elicited in the cross-examination and no
challenge has also been made by the defence that it was not a
case of homicidal death of the deceased and therefore, I am of
the humble view that the prosecution has successfully established
that the deceased has met with a homicidal death.
9. Coming to the evidence of the witnesses examined
during trial, it appears that P.Ws. 4, 6, 7, 8, 9 and 12 have not
supported the prosecution case and the case mainly rests on the
evidence of the extra judicial confession made by the appellant
before P.W.1, who is none else than his son. P.W.1 is the
informant in the case and he stated that the appellant is his
father and the deceased was his mother and on the date of
occurrence, he had been to outside for daily wages and when he
// 10 //
returned back, he found the dead body of the deceased lying
inside in their house and the appellant was present at the spot
and he told that he had killed the deceased. Of course, this
witness has been declared hostile and the Court permitted to put
leading questions to him by the Public Prosecutor under section
154 of the Evidence Act and in the cross-examination, P.W.1
admitted to have mentioned in the F.I.R. that the appellant told
him that he had killed his mother with a tangia. In the cross-
examination, P.W.1 has specifically stated that around 8.00 a.m.
on the date of occurrence, he got information from one of his
relations over phone relating to the incident and he came back to
his house around noon time. He denied the suggestion given by
the learned defence counsel that due to previous grudge and
enmity with the appellant, he deposed falsely against him. The
F.I.R. has been scribed by P.W.6 and in the F.I.R., the extra
judicial confession made by the appellant finds place.
Law is well settled that in order to act upon extra
judicial confession of the accused, it should be free and
voluntary, truthful and consistent with the circumstantial
evidence. If such confession is made in a free state of mind and
that too before a witness on whom the accused has trust and
confidence and such statement is credible one, conviction can be
based on such confession. It should not suffer from any material
// 11 //
discrepancy or inherent improbabilities. (Ref: 2014 Suppl.(II)
Orissa Law Reviews 999 Hari Dehury -Vrs.- State of Orissa,
2009(I) Orissa Law Reviews 548 State of Orissa -Vrs.-
Mulia Adapadia, (2011) 49 Orissa Criminal Reports (SC)
712 Sk. Yusuf -Vrs.- State of West Bengal, (2012) 52
Orissa Criminal Reports (SC) 435 Sahadeb and another -
Vrs.- State of Tamilnadu).
The relationship between the appellant and P.W.1 is
the father and son and there is nothing on record to show that
there was any kind of hostility between the two for which there
was possibility on the part of P.W.1 to implicate the appellant
falsely and it seems that the appellant has made extra judicial
confession voluntarily and nothing has been elicited in the cross-
examination of P.W.1 to disbelieve such evidence. Therefore, in
my humble view, the learned trial Court has rightly come to the
conclusion that the confession was made voluntarily by the
appellant and it is truthful and it inspires confidence in the mind
of the Court.
Apart from the evidence of extra judicial confession,
presence of the appellant near the deceased inside the courtyard
of the house at the time of occurrence and recovery with the
weapon of offence, are other factors, which prove the prosecution
// 12 //
case that it is the appellant, who is the author of the crime. The
learned trial Court taking into account the fact that the incident
happened due to family quarrel in a heat of passion and there
was no intention on the part of the appellant to commit the
murder of the deceased and it was not a pre-planned one and it
happened due to sudden quarrel, held the appellant guilty under
section 304 Part-II of the I.P.C. The State has also not
challenged such finding.
In view of the available materials on record, I am of
the humble view that the learned trial Court has rightly come to
the conclusion that the prosecution has established its case under
section 304 Part-II of I.P.C. against the appellant. The sentence
imposed on the appellant under no stretch of imagination can be
said to be excessive in nature. Therefore, the appeal being
devoid of merit stands dismissed.
10. It appears that after the appellant was taken into
judicial custody on 08.12.2013, he was neither released on bail
during pendency of the trial or before this Court during pendency
of the appeal. Therefore, he has not only undergone the
substantive sentence of seven years but also the default sentence
imposed by the learned trial Court. Therefore, if the appellant has
not yet been released from jail custody, he shall be set at liberty
// 13 //
forthwith, if his detention is not otherwise required in any other
case.
Before parting with the case, I would like to put on
record my appreciation to Mr. Biswajit Nayak, the learned Amicus
Curiae for rendering his valuable help and assistance towards
arriving at the decision above mentioned. The learned Amicus
Curiae shall be entitled to his professional fees which is fixed at
Rs.7,500/- (rupees seven thousand five hundred only).
11. Accordingly, the Jail Criminal Appeal stands
dismissed.
Lower Court's record with a copy of this judgment be
communicated to the learned trial Court forthwith for information
and necessary action.
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S.K. Sahoo, J.
Orissa High Court, Cuttack
The 19th October 2022/PKSahoo
