Orissa High Court
In The Matter Of An Appeal Under ... vs State Of Odisha on 11 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.729 of 2021
In the matter of an Appeal under section 374 (2) of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and
order of sentence dated 29.11.2021 passed by the learned Additional
Sessions Judge-cum-Special Judge, Umarkote in C.T. Case No.215 of
2014.
----
Suko @ Samaru Gouda .... Appellant
-versus-
State of Odisha
.... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant- Mr.U.Barik,
(Advocate)
For Respondent- Mr.P.K.Mohanty,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K.PANIGRAHI
Date of Hearing :05.07.2023 : Date of Judgment:.11.08.2023
D.Dash,J. The Appellant, by filing this Appeal, has challenged the judgment
of conviction and the order of sentence dated 29.11.2021 passed by the
learned Additional Sessions Judge-cum-Special Judge, Umerkote in
C.T. Case No.215 of 2014, arising out of G.R. Case No.908 of 2014,
corresponding to Umerkote P.S. Case No.239 of 2014 of the Court of
learned Judicial Magistrate First Class (JMFC), Umerkote.
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The Appellant (accused) has been convicted for commission of
offence under section 302 of the Indian Penal Code, 1860 (in short,
'IPC') and he has been sentenced to undergo imprisonment for life and
pay a fine of Rs.3000/- (Rupees Three Thousand) in default to undergo
rigorous imprisonment for six months.
2. Prosecution case is that on 18.08.2014 around 2 pm, one Kedar
Majhi (Informant-P.W.2) returned home from his work. He, to his utter
surprise, has found Sanamati lying dead in their house with severe
bleeding injuries on her neck. So immediately he came out and in that
very place, his sister-in-law (elder brother's wife-Bhauja) namely
Jamuna Majhi (P.W.3) told that accused Suka @ Samaru Gouda, who is
the son-in-law of Sangu Gouda was chasing the people by holding an
axe and when all those being chased went inside their respective houses
and Sanamati had concealed her presence in her house, the accused went
inside and dealt an axe blow on the neck of Sanamati. On that day
around 5 p.m., Kedar (Informant-son of the deceased Sanamati) lodged
a written report with the Inspector-in-Charge (IIC) of Umerkote Police
Station. He then treating the same as FIR registered the case and
requested the Sub-Divisional Police Officer (SDPO-P.W.14), Umerkote
to take up the investigation as the case was also registered for the
offence under section 3(2)(v) of the SC & ST (POA) Act.
3. In course of investigation, the I.O (P.W.14) examined the
informant, Kedar and visited the spot. He then found the accused to have
been surrounded by a large number of persons and his hands and legs
were tied and he had also sustained injuries on her body. The accused
was then sent for medical examination. The I.O (P.W.14) then prepared
the spot map (Ext.10) and seized the incriminating articles under seizure
list (Ext.3). He also seized the blood stained axe (Tangia) on production
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by the informant (P.W.2) in presence of witnesses under seizure list
(Ext.4). Inquest being held over the dead body of the deceased, report to
that effect was prepared by the I.O (P.W.14) and that is Ext.2. The dead
body was then sent for post mortem examination. On 19.08.2014,
accused being arrested, his blood sample and nail clippings were
collected through the Medical Officer of Umerkote CHC and those were
seized. P.W.14 also seized the wearing apparels of the deceased under
seizure list (Ext.6) as also those of the accused under another seizure list
(Ext.7). The accused then was forwarded in custody to Court. The
incriminating articles were sent for chemical examination through
Court.
4. On completion of investigation, the I.O submitted the Final Form
placing the accused to face the Trial for commission of offence under
section 302 of the IPC and section 3(2)(v) of the SC & ST (PoA) Act.
5. Learned JMFC, Umerkote, receiving the Final Form as above,
took cognizance of the offences and after observing the formalities
committed the case to the Court of the Special Judge. That is how the
Trial commenced by framing charge for the said offence against the
accused.
6. In the Trial, the prosecution in total has examined sixteen (16)
witnesses. As already stated, the son of the deceased who had lodged the
FIR (Ext.1) is P.W.2. P.W.1, P.W.3, P.W.4, P.W.5 and P.W.6 are the
witnesses to the occurrence whereas P.W.10, P.W.11 and P.W.15 are
witnesses to the inquest. P.W.7, P.W.8, P.W.9 are the witnesses of the
seizure. The Doctor, who had conducted Post Mortem Examination over
the dead body of the deceased is P.W.3 whereas the main Investigating
Officer is P.W.14 and the Tahasildar, who had issued caste certificate
showing the caste of the deceased as P.W.16.
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7. Besides leading the evidence by examining above the witnesses,
the prosecution has also proved several documents which have been
admitted in evidence and marked as Ext.1 to Ext.17. Out of those, the
important are the FIR, Ext.12, inquest report, Ext.2, Post Mortem
Report, Ext.8, spot map, Ext.10, chemical examination report, Ext.17.
8. The defence in support of his plea of denial and false implication
has not tendered any evidence.
9. The Trial Court on going through the evidence of the Doctor, who
had conducted autopsy over the dead body of the deceased i.e. P.W.13
and his report (Ext.8) as also other evidence has arrived at a conclusion
that the death of Sanamati was homicidal. In fact this aspect of the case
was not under challenge before the Trial Court and that is also the
situation before us.
The Doctor (P.W.13) has stated to have noticed one Chopped
wound of 5 cm x 4 cm on the neck, placed 3cm below and 5 cm to angle
of mandible and extended upto posterior region corresponding to 4 sm
below the occipital region. On dissection, he found the vessels on the
left of the neck to be cut; and one lacerated wound of size 4 cm x 4 cm x
2 cm over left side of scalp in the temporal region, 2 cm lateral to the
left eye. As per his evidence, all these injuries are ante mortem in nature
and caused by heavy sharp cutting weapon like axe, knife, sword or
pharsa. He has stated that the death was due to sudden and excessive
haemorrhage taking place on account of the wounds. He has stated the
nature of death to be homicidal. He too has deposed that with the seized
axe which he examined the injuries were possible and his report has
been proved as Ext.9. P.W.14 in his inquest report (Ext.2) has also noted
the injuries upon the deceased which he had seen. The other witnesses
have also stated to have seen the deceased lying dead with all such
CRLA No. 729 of 2021
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injuries. All these overwhelming evidence having not been challenged
from the side of the defence, we are wholly in agreement with the
finding of the Trial Court that deceased met homicidal death.
10. Learned counsel for the Appellant (accused) submitted that the
Trial Court without properly appreciating the evidence of the witnesses
called as the eye witnesses from all possible angles has committed the
error by relying on the same to fasten the guilt upon the accused. In this
connection, he has invited our attention to the evidence of P.W.2 and
P.W.3. He further submitted that these P.W.2 and P.W.3 being the son
and daughter-in-law of the deceased and as such having the interest in
success of the prosecution without further corroboration from the
independent sources, their evidence as to the act attributed to the
accused ought not to have been accepted.
11. Learned counsel for the Respondent-State submitted all in favour
of the finding of guilt as against the accused as has been returned by the
Trial Court. According to him, although these P.W.2 and P.W.3 are the
son and daughter-in-law of the deceased, when their version is credible
and they are the natural witnesses to the occurrence and have given
detail account of the incident as there surfaces no such infirmity therein,
the Trial Court has rightly relied upon their evidence in holding those to
be sufficient and has committed no mistake in convicting the accused
for intentionally causing the death of Sanamati.
12. Keeping in view the submissions made, we have carefully read
the judgment of conviction impugned in this Appeal. We have also gone
through the depositions of all the witnesses P.W.1 to P.W.16. We have
also perused the documents which have been admitted in evidence and
marked Ext.1 to Ext.17.
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13. As per the evidence of P.W.2, who is the son of the deceased, he
was at that time near a shop which is near his house. He has stated that
his mother Sanamati was then working in front of their house. It is his
evidence that it was around 3 pm, when accused dealt Tangia blow upon
his mother and as soon as his mother entered into the house, accused
followed her and dealt another Tangia blow. He has clearly stated that
at that time, his sister-in-law namely, Jamuna Majhi (P.W.3) was very
much present in the house. During cross-examination, he has also stated
that the Tangia blows given by the accused fell on the neck, head and
ear of his mother (deceased). It is his evidence that accused soon
thereafter escaped from the spot and climbed up a tree with the weapon
and lateron was apprehended. He has proved written report lodged with
the IIC, Umerkote Police Station as Ext.1. He is also the witness to the
inquest and has signed on that report (Ext.2). During cross-examination,
it has been suggested to him that he had not stated before the police in
course of investigation to have seen the accused dealing Tangia blow on
his mother and to have heard the incident from his sister-in-law (P.W.3).
That is found to have been proved through the I.O (P.W.14) who has
stated that P.W.2 had not stated before him to have seen the axe blow on
his mother near the shop of Kailash. In the FIR lodged by P.W.2, it has
also been stated that when he returned home, he saw his mother lying
dead in the house and then he ascertained the fact that his mother had
been murdered by the accused, from his sister-in-law (P.W.3). Thus,
such an important fact having not been earlier stated by P.W.2 when is
being stated during trial and thereby, in the Trial he is posing to be the
eye witness, his evidence in directly implicating the accused as the
author of the injury received by his mother cannot be accepted. The
improvement made during his examination in the Trial certainly cast
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grave doubt as to his presence at the spot when the occurrence took
place.
14. This now takes us to examine the evidence of P.W.3. She is none
other than the daughter-in-law of the deceased. It has been stated by her
that when her mother-in-law (deceased) was working in the house,
accused suddenly came and dealt Tangia blow on her head and neck and
when her mother-in-law entered inside the house, accused followed her
and dealt further blow by that Tangia. She has stated that out of fear, she
came out and raised hullah and then P.W.2 and others came there, who
were informed about the incident and then they caught hold of the
accused with the weapon. As per the evidence of the I.O (P.W.14) when
he arrived at the spot, the accused was under the detention near the spot.
This P.W.3 has stated that at the relevant time she and her mother-in-
law (deceased) were present at the spot and none else were there in the
house. Although it has been shown that this P.W.3 had not stated that
the accused dealt Tangia blow upon the deceased when she was working
in front of the house during his previous statement, P.W.14 (I.O) but
then also her version remains consistent as regards the subsequent blows
given by the accused by means of that Tangia upon the deceased. So
even excluding the evidence of P.W.2 from the arena of consideration
and also the evidence of P.W.3 to the extent that she had seen accused
assaulting the deceased by that Tangia when she was working outside
her evidence, her evidence that the accused having chased the deceased
and by entering into the house dealt further blows by means of that
Tangia upon the deceased stand quite consistent. Since this witness
states to be there in the house at the relevant time and no material has
been elicited from her to cast any doubt on that part of her evidence, we
are not in a position to disbelieve the evidence of P.W.3 on the above
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score too as we too find no such apparent reason with this P.W.3 to
falsely rope in the accused with the crime and when we also find that
this P.W.3 had immediately disclosed about the incident before P.W.2
on his arrival at home which is also within a short span of time.
Therefore, the solitary testimony of P.W.3 being found to be wholly
believable, being free from any sort of infirmity, merely because she
happens to be the daughter-in-law of the deceased, her evidence cannot
be viewed with suspicion.
15. On a conspectus of discussion of evidence as hereinabove, we are
thus of the view that the finding of guilt recorded by the Trial Court
against the accused for commission of the offence under section 302 of
the IPC is well in order and the accused has rightly been convicted for
the offence under section 302 of the IPC and sentenced thereunder.
16. In the result, the Appeal stands dismissed. The judgment of
conviction and order of sentence dated 29.11.2021 passed by the learned
Additional Sessions Judge-cum-Special Judge, Umerkote in C.T. Case
No.215 of 2014 are hereby confirmed.
(D. Dash),
Judge.
Dr.S.K. Panigrahi, J. I Agree.
(Dr.S.K.Panigrahi),
Judge.
Gitanjali
Signature Not Verified
Digitally Signed
Signed by: GITANJALI NAYAK
Reason: Authentication
Location: OHC
Date: 17-Aug-2023 17:34:58
CRLA No. 729 of 2021
