Dulli Khara vs State Of Odisha
2023 Latest Caselaw 9067 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                           JCRLA No.24 of 2021

          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 9th March, 2021 passed by the
    learned Sessions Judge, Malkangiri, in C.T. 65 of 2015.
                                       ----

         Dulli Khara                            ....        Appellant


                                   -versus-

         State of Odisha                        ....       Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

                For Appellant      -        Ms.B.L.Tripathy
                                            (Advocate)

                For Respondent -            Mr.Dillip Kumar Mishra
                                            Additional Government Advocate
    CORAM:
    MR. JUSTICE D.DASH
    DR. JUSTICE S.K. PANIGRAHI

    Date of Hearing : 06.07.2023        :     Date of Judgment:11.08.2023

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 9th March, 2021 passed by the learned Sessions

Judge, Malkangiri, in C.T. 65 of 2015 arising out of G.R. Case

No.60 of 2018 corresponding to Chitrakonda P.S. Case No.09 of

JCRLA No.24 of 2021

2015 of the Court of the learned Sub-Divisional Judicial

Magistrate (S.D.J.M.), Malkangiri.

The Appellant (accused) thereunder has been convicted for

committing the offence under sections 302/201 of the Indian Penal

Code, 1860 (for short, 8the IPC9). Accordingly, he has been

sentenced to undergo imprisonment for life and pay fine of

Rs.10,000/- (Rupees Ten Thousand) in default to undergo

rigorous imprisonment for a period of one (1) year for

commission of the offence under section 302 of the I.P.C; and to

undergo rigorous imprisonment for three (3) years and pay fine

of Rs.2,000/- (Rupees Two Thousand) in default to undergo

rigorous imprisonment for two (2) months for commission of the

offence under section 201 of the IPC with the direction that the

substantive sentences would run concurrently.

2. Prosecution Case:-

This accused Dulli Khara was living with his wife Dipai

Khara and two children in his native village-Manjurlendi. During

the year 2014, he had left his native village and shifted with his

family to Village-Sanyasiguda where he resided with his family

by constructing the house on a piece of land provided by the

villagers near the jungle. For some days prior to the occurrence,

the accused was suspecting the character of his wife that she had

JCRLA No.24 of 2021

been pregnant through someone-else and he accused used to

assault her wife and was often giving threat to kill her.

On 16.02.2015 night, when after taking dinner, all were

sleeping in the house, the accused started quarreling with his

wife and it as during mid night when their daughter Subarna

Khara (deceased) woke up from the sleep and tried to separate

her quarreling parents, at that moment, the accused, being highly

aggrieved with his daughter Subarna gave an axe blows upon

her. Receiving the said blow, Subarna fell down on the floor with

cut injuries on her neck and some time thereafter, succumbed to

the said injuries. It is further stated that seeing the horrible

incident, the wife of the accuse picked up her small child and

immediately rushed towards the jungle to save her life and there,

she with her child, concealed the presence for the whole night. In

the morning, the wife of the accused (P.W.3) returned and

narrated the incident before the villagers and the Ward Member

and other villagers. After hearing the entire incident from the

wife of the accused (P.W.3), they went to the house of the accused

and found that the accused had buried the dead body of his

daughter on his back yard. The villagers then brought out the

dead body of the daughter of the accused from the place where it

had been buried and produced the same along with the accused

and blood stained axe at the Police Station. The Ward Member

(P.W.2) then lodged a written report with the Inspector-in-Charge

JCRLA No.24 of 2021

(I.I.C.) of Chitrokonda Police Station (P.S). The I.I.C., receiving the

said written report, treated it as the FIR and after registering the

case, directed one Sub-Inspector (S.I.) of Police (P.W.13) to take

up the investigation.

3. In course of investigation, the Investigating Officer (I.O.-

P.W.13) examined the Informant (P.W.2) and recorded his

statement and those of other witnesses under section 161 of the

Code of Criminal Procedure, 1973. Having made the spot visit, he

prepared the spot map (Ext.13). He then having held inquest over

the dead body of the deceased, prepared his report (Ext.8) and

sent the dead body of the deceased for post mortem examination

by issuing necessary requisition. The accused was then arrested

and forwarded in custody to Court. Other incriminating articles

were sent for chemical examination through Court. On

completion of the investigation, he submitted the Final Form

placing the accused to face the Trial for commission of the offence

under section 302/201 of the IPC.

4. Learned S.D.J.M., Malkangiri, on receipt of the Final Form,

took cognizance of said offences 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.

JCRLA No.24 of 2021

5. The prosecution, in support of its case, has examined in

total fourteen (14) witnesses during Trial. As already stated,

P.W.2 is the informant, who lodged the FIR (Ext.4), P.W.3 is the

wife of the accused and mother of the deceased and P.Ws.7, 8, 9,

10 & 11 are the co-villagers of the accused. The Doctor, who had

conducted the post mortem examination over the dead body of

the deceased has been examined as P.W.4 whereas the I.O. of the

case come to the witness box as P.W.13.

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.4); inquest report (Ext.8);

post mortem report (Ext.6) as also the Chemical Examiner9s

report (Ext.16).

6. The plea of the accused is that of complete denial and false

implication. No evidence has, however, been tendered from the

side of the accused in support of his evidence.

7. The Trial Court, upon examination of the evidence of the

Doctor (P.W.4), who had conducted the autopsy over the dead

body of the deceased, who is the daughter of the accused and his

report (Ext.6) as well as the other evidences, has arrived at a

conclusion that Subarna (deceased) met a homicidal death. In fact

JCRLA No.24 of 2021

this aspect of the case was not under challenge before the Trial

Court and that has also been the position before us.

The Doctor, during post mortem examination, has found

five cut injuries on different parts of the body of the deceased.

The size and seat of injuries are:- (a) 3"X1"X3" on the root of left

side of the neck; (b) 3"X1"X3" on left clavicle with fracture of left

clavicle, which too had been fractured; (c) 1"X2cmX2" upon

medial aspect of right thigh 4" above knee; (d) 4"X2"X1" on

medial aspect of left knee and left let; and (e) 2"X1"X1" on medial

aspect of left leg 2" above to medial malleolus of left foot. As per

the evidence of the Doctor (P.W.4), all such injuries are ante

mortem in nature and the death was on account of hypovolemic

shock due to haemorrhage from multiple cut injuries upon her

body. It has also been stated that the seized axe, which he had

examined, the injures found on the body of the deceased were

possible. He has proved his report to that effect vide Ext.7. The

I.O., who held the inquest over the dead body of the deceased as

well as series of witnesses, have also noted the injures as noted in

the inquest report (Ext.8). P.W.3 too has stated to have seen the

deceased with such cut injuries of over her body. When all these

evidence have remained unchallenged, we find ourselves wholly

in agreement with the finding of the Trial Court as regards the

nature of death of Subarna to be homicidal.

JCRLA No.24 of 2021

8. Ms.B.L.Tripathy, learned counsel for the Appellant

(accused) submitted that the entire case of the prosecution is

based upon the evidence of P.W.3, which is said to be receiving

corroboration from the evidence of the Doctor (P.W.4) and

P.Ws.2, 3, 7, 8, 9 and 11. He submitted that the Trial Court has not

properly analyzed the evidence of P.W.3, the wife of the accused,

who is the mother of the deceased with whom the accused was

not pulling on well and has committed grave error in accepting

her version as gospel truth and by ignoring the discrepancies and

other infirmities. He submitted that the Trial Court ought not to

have placed implicit reliance upon the evidence of P.W.3 in

fastening the guilt of the accused.

9. Mr.D.K.Mishra, learned Additional Government Advocate

for the Respondent-State, while supporting the finding of guilt

against the accused, as has been rendered by the Trial Court,

contended that the evidence of P.W.3, being analyzed in great

detail, the Trial Court has rightly accepted the same as that also

receives corroboration from other independent witnesses as to

her immediate disclosure before them regarding the act of the

accused leading to the death of his minor daughter.

10. Keeping in view the submissions made, we have carefully

gone through the impugned judgment of conviction. We have

also travelled through the depositions of the witnesses examined

JCRLA No.24 of 2021

from the side of the prosecution (P.Ws.1 to 14) and have perused

the documents admitted in evidence marked as Exts.1 to 16.

11. The solitary witness to the occurrence, as has been projected

by the prosecution, is P.W.3, who is the wife of the accused and

she has stated as to how her daughter aged about 11 years, was

assaulted to death by her husband (accused). It is stated by her

that she had slept in the house after taking dinner when the

accused came and pointing suspicion as to her character

quarreled with her. As per her evidence, during that time, their

minor daughter (deceased) woke up and she tried to subside the

matter. It is further stated that the accused, in view of such

intervention of minor daughter (deceased), dealt blows by means

of an axe, which struck of the neck of their daughter and leg

resulting bleeding injuries causing her death. It has been further

stated that out of fear, she left the house along with her child

towards jungle and on the next morning, she informed the matter

to P.W.2 and other villagers, who then came and recovered the

dead body, which had been concealed by the accused by putting

under lumps of earth. She has further stated that the accused,

being asked by P.W.2 and others, confessed to have caused the

death of his daughter. He then gave recovery of the Tangia. The

witness, during cross-examination, although has been thrown

with a suggestion that she had not stated before the police during

JCRLA No.24 of 2021

her earlier examination in course of investigation that the accused

killed their daughter by means of a Tangia, that, however, has not

been proved through the I.O. (P.W.13). Therefore, the evidence of

this witness remains wholly unimpeached. The evidence of P.W.3

also receives corroboration from P.W.2 that P.W.3 had been to

him and disclosed that the accused had killed their daughter.

This P.W.2 has further stated that hearing from P.W.3, he and

other villagers went to the spot and caught hold of the accused,

who being asked, confessed to have killed his daughter and kept

the dead body under heap of earth. He has also stated that the

accused then gave recovery of the Tangia, which was stained

with blood and the dead body was also recovered. This P.W.2, in

his FIR (Ext.4) had stated all such facts and his evidence thus

receive corroboration from the FIR too.

The evidence of P.W.7 is also the effect that P.W.3 had

informed about the incident and the role of the accused before

him. This has also been the evidence of P.Ws.8, 9 & 10. No such

material has been elicited from any of these witnesses to entertain

any doubt on their testimony and that apart, nothing is available

on record to even remotely suggest that they had any axe to grind

against the accused in falsely roofing him in the commission of

the crime.

JCRLA No.24 of 2021

- 10 -

On a conspectus of analysis of the evidence hereinabove,

this Court finds that the prosecution has proved its case against

the accused as having committed the murder of Subarna beyond

reasonable doubt

13. In the result, the Appeal stands dismissed. The judgment of

conviction and the order of sentence dated 9th March, 2021 passed

by the learned Sessions Judge, Malkangiri, in C.T. 65 of 2015. are

hereby confirmed.

(D. Dash) Judge

Dr.S.K. Panigrahi, J. I Agree.

(Dr.S.K. Panigrahi) Judge

Basu

Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 17-Aug-2023 16:49:27

JCRLA No.24 of 2021