Jinjuku Muduli @ Jhinku Muduli vs State Of Odisha
2023 Latest Caselaw 9080 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                        CRLA No.45 of 2016

        In the matter of an Appeal under Section 374 of the Code of
  Criminal Procedure, 1973 and from the judgment of conviction
  and the order of sentence dated 13th January, 2016 passed by the
  learned Sessions Judge, Koraput at Jeypore, in Criminal Trial
  No.104 of 2012.
                               ----

Jinjuku Muduli @ Jhinku Muduli .... Appellant

-versus-

State of Odisha .... Respondent

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

              For Appellant      -       Mrs.Sonita Biswal
                                         (Advocate)

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

  Date of Hearing : 14.07.2023       :      Date of Judgment:11.08.2023

D.Dash,J.     The Appellant, by filing this Appeal, has called in

question the judgment of conviction and the order of sentence

dated 13th January, 2016 passed by the learned Sessions Judge,

Koraput at Jeypore, in Criminal Trial No.104 of 2012 arising out

of G.R. Case No.95 of 2012 corresponding to Sunabeda P.S. Case

CRLA No.45 of 2016

No.16 of 2012 of the Court of the learned Sub-Divisional Judicial

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

The Appellant (accused) thereunder has been convicted for

committing the offence under section 302 of the Indian Penal

Code, 1860 (for short, 'the IPC'). Accordingly, he has been

sentenced to undergo imprisonment for life.

2. Prosecution Case:-

On 13.02.2012, an entertainment program had been

organized in the Village-Machhiliguda for observance of the birth

of the first daughter of one Panu Muduli. Mali Muduli, who is the

paternal uncle of Damburu Muduli (informant-P.W.4) with other

villagers were participating in the feast. Damburu Muduli

(informant-P.W.4) then went to his house to study. It was around

8.30 p.m., the aunt of Damburu (informant-P.W.4), namely, Gouri

Muduli (P.W.2) went to him and informed him about the quarrel

taking place between Mali Muduli and this accused, namely,

Jinjuku. Hearing this, Damburu (informant-P.W.4) came out of

his hosue and saw his uncle Mali Muduli lying on the ground

with profuse bleeding from his chest. He subsequently came to

know that the accused, who happens to be the cousin brother of

Mali (deceased), having inflicted injuries on his chest by means of

a pointed weapon has caused this situation. The injured then was

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shifted to the Hospital to take a chance of survival. But, he was

declared dead on arrival in the Hospital.

Damburu (informant-P.W.4) then lodged a written report

with the Inspector-in-Charge (I.I.C.) of Sunabeda Police Station.

Receiving the said written report, the I.I.C. treated the same as

FIR and after registering the case, took up investigation.

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

P.W.14) examined the Informant (P.W.4). He visited the spot and

prepared the spot map (Ext.12), held inquest over the dead body

of the deceased in presence of the witnesses, which led to

preparation of the inquest report (Ext.2). During his visit, he

collected the sample earth and blood stained earth and prepared

the seizure list (Ext.13). The dead body of the deceased was the

sent for postmortem examination by issuing necessary

requisition. The accused, on that day, was arrested around 3.00

p.m., and it is said that he, while in custody, had disclosed that

the Daa (sickle) had been kept on the thatch of his house The

disclosure statement of the accused has been admitted in

evidence and marked Ext.4 whereas the seizure list in respect of

the seizure of Daa (sickle) has been marked as Ext.3. the accused

was then forwarded in custody to Court. The opinion of the

Doctor, having been sought for as to the possibility of the injuries

noticed upon the dead body of the deceased by means of Daa

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(sickle) came in the affirmative. The incriminating articles were

then sent for chemical examination through Court. Thereafter, on

completion of the investigation, the I.O. (P.W.14) submitted the

Final Form placing the accused to face the Trial for commission of

the offence under section 302 of the IPC.

4. Learned S.D.J.M., Koraput, 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.

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

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

P.W.4 is the informant, who happens to be the nephew of the

deceased (son of elder brother of the deceased), who had lodged

the report (Ext.1), which triggered the investigation. P.W.1 is a co-

villagers and a post occurrence witness. P.W.2 is the wife of the

deceased P.W.10 is the Doctor, who conducted the post mortem

examination of the deceased whereas P.W.13 is the Doctor, who

had medically examined the accused. The Investigating Officer

(I.O.) is P.W.14.

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.

CRLA No.45 of 2016

Important of those, are the FIR (Ext.1); inquest report (Ext.2); post

mortem report (Ext.8); the spot map (Ext.12); and the chemical

examiner's report (Ext.16). The statement of the accused before

giving recovery of sickle (M.O.I) has been admitted in evidence

and marked Ext.3.

6. The accused, in support of his defence of denial and false

implication, has not tendered any evidence.

7. The Trial Court, on going through the evidence of the

Doctor (P.W.10), who had conducted the autopsy over the dead

body of the deceased and his report (Ext.8) as also the evidence of

other witnesses including the informant (P.W.4), has arrived at a

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

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

Court and that is also the position before us in this Appeal.

8. It is the evidence of the Doctor (P.W.10), who had

conducted the post mortem examination over the dead body of

the deceased, that he had noticed three external incised stab

wounds on the chest region of the deceased and he too had

noticed the corresponding internal injuries, when he went for

dissection. According to him, all such injuries are ante mortem in

nature and the death of the deceased was homicidal. He has

further stated that the death of the deceased was on account of

massive haemorrhage due to stab injuries on vital organs like

CRLA No.45 of 2016

heart and lungs. It is also his evidence that such injuries are

possible by the seized sickle (M.O.I), which he examined by

accepting the request of the I.O. (P.W.14), which he had opined

under Ext.9.

With such version of the Doctor (P.W.10), we also find the

evidence of the I.O (P.W.14) that during inquest, he had noticed

such external injuries, which he had noted in his report (Ext.2).

Other witnesses have also stated that they had seen the deceased

with such injuries. In view of all such unchallenged

overwhelming evidence on record, we find absolutely no

difficulty to concur with the finding of the Trial Court that the

death of Mali (deceased) was homicidal.

9. Mrs.Biswal, learned counsel for the Appellant (accused)

submitted that the prosecution here when relies upon the version

of P.Ws.8, 9 & 12, the Trial Court, without critically examining

their evidence, taking due care and observing the caution, has

committed the error in holding the accused guilty of the charge

under section 302 of the IPC in intentionally causing the death of

Mali Muduli (deceased). She further submitted that the evidence

of P.Ws.8, 9 & 12 ought to have been taken into account with the

evidence of other witnesses and when their evidence do not

match with one another in respect of the material facets of the

case, the Trial Court ought not to have taken said evidence as the

CRLA No.45 of 2016

basis of convicting the accused for commission of the offence

under section 302 of the IPC.

10. Mr.Mishra, learned Additional Government Advocate for

the Respondent-State, while supporting the finding of the Trial

Court, submitted that the evidence of P.Ws.8. 9 & 12 stand rock

solid and, therefore, has been rightly held to be enough by the

Trial Court in concluding that the prosecution has established the

charge against the accused beyond reasonable doubt.

11. In order to judge the sustainability of the finding of guilt

recorded against the accused, as has been returned by the Trial

Court, let us start with the evidence of P.W.8. She is a co-villagers

and as it appears, is having no special affinity either for the

accused or for the deceased. She states that during that night, she

too was witnessing the NACHA (Dance), which was going on in

front of the house of Damburu Muduli (informant-P.W.4). It is

stated that the deceased was then watching said NACHA (Dance)

when accused came by covering his body with a Chadar (Shawl)

and he was holding the Daa (Sickle), which he concealed under

that Chadar. It is further stated that all of a sudden, the accused

assaulted the deceased by means of that Daa (sickle) and ran

away from the spot. His evidence is that on account of such stab

blow, Mali Muduli (deceased), sustained bleeding injury on his

chest and died at the spot. Be it stated that the accused and the

CRLA No.45 of 2016

deceased are two brothers and their houses adjoin one another.

This witness, during cross-examination, has affirmatively

asserted that the accused, stabbing the deceased by means of Daa

(sickle), had been seen by her. The only contradiction appears in

her evidence is that she had not stated before the police during

her examination, in course of investigation that the accused had

come there by covering his body with a Chadar (Shawl). But, that

in our considered view, is not of that significance so as to

adversely view the evidence of P.W.8 when according to us, in

the situation in which the incident took place when a person,

seeing the incident immediately states about the happenings, it is

not uncommon of unlikely that this part as to what the assailant

was wearing, if not stated that state of mind would put his/her

main version as not credible. Furthermore, we find that the

evidence of P.W.9, who states to have seen the occurrence when

he was witnessing the NACHA (Dance) provides full support as

to the role played by the accused when he states that the accused

pierced a Daa (sickle) on the chest of Mali Muduli (deceased)

resulting his fall. Both these witnesses, having been cross-

examined, we find no such material to have surfaced to create

any doubt, in our mind, with regard to their presence at the spot.

It is also not seen that they had any axe to grind against the

accused and as such, no reason is given as to why they would

falsely rope in the accused from amongst such good number of

CRLA No.45 of 2016

persons, who had gathered to watch the NACHA (Dance) when

such evidence also find full corroboration from the evidence of

the Doctor (P.W.10), who had conducted the autopsy and noticed

all such injuries on the chest region of the deceased and has said

that such injuries are possible by that Daa (Sickle).

In addition to this, we also find the evidence of P.W.12,

which is a little more elaborative when she has stated that she

had seen the accused coming to the spot covering a Chadar

(Shawl) on his body and then, all of a sudden gave blow on the

chest of the deceased by means of Daa (sickle). That is completely

in tune with the evidence of P.W.8. The criticism made against

this witness is again with regard to the accused putting up

Chadar (Shawl), but that, in view of our early discussion and

reason, does not stand to be adversely taken note of that such

omissions in the statement recorded under section 161 Cr.P.C.,

which are usually brief would not amount to material

contradiction so as to discard their evidence regarding their

presence.

The seized Lungi and Gamuccha from the possession of the

accused, being chemically examined, it has been ascertained that

human blood of Group-A, which is blood group of the deceased,

had stuck not only on those wearing apparels but also on the Daa

(sickle-M.O.I) and the nail clippings of the accused, which have

not been explained.

CRLA No.45 of 2016

- 10 -

In view of the above clear, cogent and acceptable evidence

on record, we are of the view that the Trial Court has rightly

convicted the accused by holding that the prosecution has proved

the charge against him beyond reasonable doubt.

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

conviction and the order of sentence dated 13th January, 2016

passed by the learned Sessions Judge, Koraput at Jeypore, in

Criminal Trial No.104 of 2012 are hereby confirmed.

(D. Dash), Judge.

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

(Dr.S.K. Panigrahi), Judge.

Basu

CRLA No.45 of 2016