Mangal Munda vs State Of Orissa
2023 Latest Caselaw 15473 Ori

Orissa High Court

Mangal Munda vs State Of Orissa on 4 December, 2023

Author: G. Satapathy

Bench: D. Dash, G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                      CRLA No.651 of 2012

  (An appeal U/S. 374(2) of the Code of Criminal
  Procedure, 1973 against the judgment passed by Shri
  A.K. Panda, Addl. Sessions Judge (FT), Sambalpur in
  S.T. No.225/06 of 2010-2011 corresponding to C.T.
  Case No. 773 of 2010, arising out of Katarbaga PS
  Case No. 28 of 2010 of the Court of SDJM, Sambalpur)


  Mangal Munda                 ...            Appellant


                             -versus-

  State of Orissa              ...            Respondent

For Appellant           :      Mr.B.K. Ragada,Advocate
For Respondent          :      Mr.P.K.Mohanty, ASC


       CORAM:
          HON'BLE MR. JUSTICE D. DASH
          HON'BLE MR. JUSTICE G. SATAPATHY

                  DATE OF HEARING :06.10.2023
                  DATE OF JUDGMENT:04.12.2023


G. Satapathy, J.

1. Being aggrieved by the impugned judgment

and order passed on 02.06.2011 by the learned Addl.

Sessions Judge, Fast Track Court, Sambalpur in S.T. Case

No. 225/06 of 2010-2011 convicting the Appellant for

offence punishable offence U/S. 302 of IPC and

sentencing him to undergo imprisonment for life with fine

of Rs. 1,000/- in default whereof, to undergo

imprisonment for one month, the convict-Appellant herein

has preferred this appeal.

Factual background

2. On 16.05.2010 at about 9am, while Mangru

Khadia (hereinafter referred to as the "deceased") was

consuming liquor with convict and convict's wife Bharti

Munda in front of the Courtyard of the convict in village

Pardesipali, the convict asked his wife for some water

and, accordingly, she went to bring water to the nearby

tube well. At this time, a quarrel ensued between the

convict and the deceased and the convict brought out an

axe from his house and assaulted the deceased

indiscriminately by said weapon of offence i.e. an axe

(MOI). After hearing the incident, PW 9 Jasoda Khadia,

whose house situates very close to the house of the

convict, came out of her house and found the deceased

lying on the ground sustaining with severe bleeding

injuries and the convict standing there by holding an

axe(MOI). On seeing PW9, convict threw away the axe to

the roof of his house. After hearing commotion, the

villagers including mother and sister of the deceased

arrived at the spot and an ambulance was arranged to

shift the deceased, but before the deceased could be

shifted to the hospital, he succumbed to injuries. The

parents and sister of the deceased guarded the dead

body in the night.

3. On this incident, on next morning, PW1 Rabi

Bhue proceeded to Katarbaga Police Station along with

PW 8 Saraswati Khadia and another sister of the

deceased and PW1 lodged an FIR under Ext.1 being

scribed by PW10 Khirod Kumar Singhdeo before

Katarbaga Police Station and, accordingly, in absence of

IIC, the ASI of Police PW12 Dayanidhi Biswal registered

Katarbaga PS Case No. 28 of 2010 against the convict for

offence U/S. 302 of IPC and took up the investigation of

the case. In the course of investigation, PW 12 examined

the informant and other witnesses, prepared the spot

map under Ext. 12 after visiting it, conducted inquest

over the dead body of the deceased vide Ext. 2 and

dispatched the dead body to VSS Medical College and

Hospital, Burla for Post Mortem examination. PW12 got

MOI recovered by the convict pursuant to his disclosure

statement recorded under Ext.3 and seized MOI under

Ext. 4. PW 12 also seized the wearing apparels of the

deceased as well as that of the accused together with

sample & blood stain earth from the spot and the same

were sent by another IO PW 11 Debi Prasad Das to RFSL,

Sambalpur and the chemical examination report under

Ext.11 was obtained. As usual on completion of

investigation, PW 11 submitted a charge-sheet against

the convict for offence U/S. 302 of IPC under which

cognizance was taken and the charge was framed against

the convict for said offence, but the convict did not plead

guilty to the charge and he, thereby, came to be tried by

the trial Court for the aforesaid offence.

4. In support of the charge, the prosecution

examined altogether 13 witnesses and proved document

under Exts.1 to 16 as well as identified material objects

under MO-I to III as against no evidence whatsoever by

the defence.

5. The plea of the convict in the trial was denial

simplicitor and false implication, but he took a specific

plea of alibi in his statement recorded U/S.313 Cr.P.C.

6. After appreciating the evidence on record upon

hearing the parties, the learned trial Court convicted the

Appellant by heavily relying upon the circumstance as

deposed to by PW 9. This is how the Appellant before this

Court in this appeal.

7. In the course of hearing, Mr. B.K. Ragada,

learned counsel for the Appellant has submitted that in

the facts and circumstance of the case, the learned trial

Court has committed serious error in holding the

Appellant guilty of the offence because the circumstances

as inferred by the learned trial Court do not remotely

disclose the guilt of the Appellant for any offence. Mr.

B.K. Ragada has also submitted that although the learned

trial Court has heavily relied upon the evidence of PW 9 in

holding the circumstance to have been firmly and

cogently established against the convict, but by no

stretch of imagination such circumstance has established

the guilt of the Appellant since PW9 had never seen the

Appellant assaulting the deceased nor her evidence

remotely connect the convict with the commission of

crime and, thereby, reliance cannot be placed upon the

evidence of PW9 in convicting the Appellant. In summing

up his argument, Mr. B.K. Ragada, learned counsel for

the Appellant has relied upon the decision in Raju @

Rajendra Prasad Vrs. State of Rajastan; 2022 (88)

OCR SC 655 to contend that since PW9 had not seen the

occurrence, benefit of doubt may be extended to the

appellant and, accordingly, learned counsel for the

Appellant has prayed to allow the appeal.

8. On the other hand, Mr. P.K. Mohanty, learned

ASC has refuted the submission of Mr. Ragada by inter-

alia contending that the circumstance so established

against the convict unerringly point towards the guilt of

the convict and the circumstances are so complete that

there is no escape from the the conclusion that within all

human probability, the crime was committed by the

Appellant and, accordingly, Mr. Mohanty has prayed to

dismiss the appeal.

9. After having considered the rival submissions

upon perusal of record, this Court considers it apposite to

re-appreciate and scrutinize the entire evidence on record

to find out legal sustainability of the impugned judgment

of the conviction recorded against the Appellant. At the

outset, it is to be reminded, that in case of murder, there

are two important issues which need to be answered;

firstly, the nature of death i.e. homicidal death and

secondly, the person responsible for such homicidal death

of the deceased.

10. A cursory glance to the evidence on record

would go to indicate that there is no direct evidence by

which it can be said that the Appellant was responsible

for the murder of the deceased or he committed the

murder, but there are circumstance available in evidence

on record to find out the legal sustainability of the

impugned judgment. Firstly, there is no dispute about the

homicidal death of the deceased which is apparent from

the medical evidence of PW 13 which inter-alia transpired

the following:-

On PM examination, he(PW 13) found External Injuries:-

(i). Elliptical shaped cut wound measuring 6.8 x 1.5 cm noticed at the right side of head 1 cm above the upper pole of pinna, blood and lymph found adherent to the margin, margins were cleanly cut with slight bevelly downwards and brain matter had come out of the wound.

(ii). Cut wound measuring 3 x 0.5 cm placed vertically over right side zygomatic area of face, margins showing slight contusion effect and dried blood and lymph were adhered.

(iii). Abraded contusion of size 3 x 1 cm on right side of corresponding the temporal hair line.

(iv). Cut wound measuring 3 x 1 cm at back of root of right ear and another such cut wound measuring 3 x 0.5 cm at back side of right pinna.

(v). Abraded contusion of size 2 x 1 cm over left side check, brownish in color and 2 number of abraded contusion measuring 1.5 x 1 cm each noticed on the left molar prominence.

(vi). Tangential bevelled cut wound directed downward was noticed on the left side of face corresponding the body mandible and measured 4 x 2 cm.

(vii). Cut wound, elliptical in shape measuring 7 x 1.5 cm transversely situated in the midline of back at the interscapular region corresponding T-5 vertebral spine. The wound was deep enough to cut through the lamina of the vertebra, reached up to the spinal canal.

(viii). Cut wound of size 3 x 1 cm at the midline of back of root of neck and limited within the subcutaneous tissue.

(ix). Cut wound of size 6.7 cm in length noticed transversely over blade of right shoulder. It was deep and 1 cm width on the lateral end and was found to be superficial and of gradually decreasing width towards the medial end.

(x). Cut injury of similar shape of length 7 cm was noticed over back of right shoulder and another such wound was noticed on the right side of back 4 cm bellow the spine of scapula.

(xi). Abrasion of size 2 x 2 cm on the lateral aspect of left arm and of size 1 x 0.5 cm, 2 in number on the left side of chest below the nipple.

(xii). Abrasion of size 0.5 cm, 2 in number noticed over right knee.

11. Further on dissection, PW 13 had found inter-

alia, the temporalis muscle was cut which corresponds to

the external injury No.i and underline skull bone was so

also cut with a piece of wedge shape skull bone

measuring 6.8X4X3 cm found to be depressed in words

and on the back, the external injury no.vii was involved

with T-5 vertebrae & the lamina and spinous processes

were cut and the wound was final canal deep. Finally, PW

13 in his opinion had stated that external injuries no.

iii,v,xi and xii appears to be non-fatal and could have

been caused by impact with hard and rough

surface/object and the rest of the injuries along with their

internal effects were caused by moderately heavy to

heavy sharp cutting weapon and the death was homicidal

in nature and all the injuries were fatal to cause death in

ordinary course of nature, whereas external injury nos. i

and vii were individually sufficient to cause death in

ordinary course. PW 13 concluded that the death was due

to shock as a result of cranio cerebral injury and spinal

injury. The defence has never disputed the homicidal

death of the deceased. It is, therefore, clear that finding

of the trial Court as to the homicidal death of the

deceased is concurred by this Court.

12. Adverting to the next issue as to who was

responsible for the death of the deceased, the evidence of

PW9 is very much important and crucial, since the

evidence of PW9 transpired that she found the deceased,

convict and convict's wife consuming liquor sitting in the

Courtyard of the house of convict and the place was

illuminated by the light of the Dibri at that time and at a

little distance a bulb was also glowing in the house of one

Chaitu Khadia. After sometime, PW9 heard the convict

asking some water from his wife Bharati and, accordingly,

his wife Bharati went to bring water from a tube well

situated in front of the house of Khirod Singhdeo and

again after some time, she heard the sound of the assault

and came out of the house immediately and found the

deceased Manguru lying on the ground sustaining

bleeding injury and the convict standing there by holding

an axe(MOI) and soon the convict threw away MOI to the

roof of his house. PW9 also found the children of the

convict shouting that their father had killed the deceased

and at that time, the deceased was alive and struggling

for life. Immediately the mother and sister of the

deceased namely Saraswati and Parbati reached at the

occurrence spot and she told them about the incident.

The defence had, of course, cross-examined PW9, but it

ended upon only eliciting that the Courtyard where the

convict and deceased were consuming liquor was not

visible from the place where she was taking her dinner

and the house of the convict situates at a distance of

about 10 to 12 feet from her house. It is, therefore, clear

that the house of PW9 was very close to the occurrence

spot and the deceased and convict together were

consuming liquor at that time. Further, it was elucidated

from her mouth in cross-examination that the convict

threw away the axe to the roof of his house and prior to

the arrival of the Police, some villagers had apprehended

the convict under a tamarind tree which was nearer to

the occurrence spot. The evidence of PW9 is no way

demolished by the defence. Further, it is also clear from

the evidence of PW12 and PW 3 that the weapon of

offence axe (MOI) was seized by PW 12 and the same

was also sent to RFSL, Sambalpur as per the evidence of

PW11 along with other incriminating materials and the

chemical examination report was received vide Ext.11

which disclosed human blood on MOI.

13. Besides, the evidence of PW13 transpired that

he had answered to the query of the IO about possibility

of the injuries on the deceased by MOI in affirmative way

vide Ext. 14/2 by opining that the injuries were possible

by MOI.

14. The evidence of PW 1 also transpired that the

house of PW9 situated near the house of the convict so

also the evidence of PW7 disclosed that the house of PW9

and deceased was situated near the house of convict.

PW7 is the mother of the deceased and her evidence

disclosed that on hearing the news, she came to the spot

and found her deceased-son lying on the ground

sustaining severe bleeding injuries on his head and

backside and he was also struggling for life and she also

found PW9 whose house was nearby to the house of the

deceased present there and on her enquiry, PW9

disclosed the fact to her. Similarly, the evidence of PW8

who is the sister of the deceased, disclosed that after

hearing the sound, she along with her mother rushed to

the spot and found his brother lying on the ground with

severe bleeding injury on his head and back side of body

and PW9 informed her that convict had assaulted his

brother Manguru by means of an axe. Of course, PW Nos.

7 and 8 were not the eye witnesses to the occurrence,

but one important circumstance comes out of their mouth

that the presence of PW9 at the spot. The evidence of

PW9 clearly demonstrate the principle of res gestae in

terms of Section 6 of the Evidence Act which reveals that

facts which, though not in issue, are so connected with a

fact in issue as to form part of the same transaction are

relevant, whether they occurred at the same time and

place or at different times and places. So the evidence of

PW 9 is clearly acceptable and the Appellant has not

made out any ground/circumstance to disbelieve her

evidence.

15. From a cumulative and meticulous analysis of

evidence on record, the following circumstance emerged

and proved against the convict:-

(i) The convict, her wife and the deceased were consuming liquor sitting in front of the house of the convict at the relevant time.

(ii) Convict sent his wife to bring water at the relevant time.

(iii) On hearing shout/commotion, PW9 rushed to the spot and found the deceased lying on the ground with serious bleeding injury on his person and the convict was standing there holding MOI.

(iv) The convict threw the axe to the roof of his house.

(v) The deceased suffered homicidal death.

(vi) MOI was found stained with human blood.

(vii) PW Nos. 7 and 8 reached to the spot and told about the incident by PW No. 9.

16. The evidence of PW9 clearly established that

the deceased and convict were shortly seen by her prior

to death of the deceased and the convict was standing

there by holding an axe which was strong circumstance

and the defence has failed to explain such circumstance.

In addition, the plea of alibi taken by the convict for the

first time at the crime of recording of his statement U/S.

313 Cr.P.C which was not established nor any evidence

was led to establish such facts and such false plea is an

additional link to the circumstance to establish the guilt of

the convict. A careful reading of the evidence on record

would go to indicate that the aforesaid circumstances

from which the conclusion of guilt of the convict are

sought to be drawn were fully established and the

circumstances so established were consistent only with

the hypothesis of guilt of the accused and it were

incapable of explanation of any other hypothesis except

the guilt of the convict. The aforesaid circumstances were

not only conclusive in nature, but also had the definite

tendency and character unerringly pointing towards the

guilt of the convict. The circumstances so taken form a

chain so complete that there was no escape from the

conclusion that within all human probability, the crime

was committed by the convict and none else, and the

circumstances so drawn were incapable of any

explanation consistent with the hypothesis of innocence

of the convict.

17. Although the Appellant draws attention to the

evidence of PW9 to contend that since she was not the

eye witness to the occurrence, it would not be safe to

base conviction of the Appellant and, accordingly, reliance

has been placed upon the decision in Raju @ Rajendra

Prasad (supra), but such claim of the Appellant is the

figment of his imagination inasmuch as in the decision

relied on, the convict was not last seen with the deceased

but in this case the convict was not only last seen with

the deceased but also were found taking liquor shortly

before assault by the deceased which was seen by PW9 .

The defence has attacked the prosecution evidence

mainly on the ground that it was dark, but the evidence

of PW9 had clearly revealed that the spot was illuminated

by a Dibri(Kerosene Lamp) which was never demolished

by the defence in cross-examination.

18. On a careful scrutiny of the evidence on record

together with the impugned judgment, this Court does

not find any error apparent in the impugned judgment of

conviction, which calls for no interference by this Court in

this appeal. Consequently, no ground is made out by the

Appellant to interfere with the impugned judgment of

conviction and order of sentence.

19. In the result, the appeal stands dismissed. As a

logical sequitur, the impugned judgment of conviction

and order of sentence passed by the learned Sessions

Judge, Fast Track Court Sambalpur in S.T. Case No.

225/06 of 2010-2011 are hereby confirmed.

(G. Satapathy) Judge

I Agree

(D.Dash) Judge

Orissa High Court, Cuttack, Dated the 4th day of December, 2023/Priyajit

Location: HIGH COURT OF ORISSA