Orissa High Court
Suna Majhi vs State Of Odisha on 4 December, 2023
Bench: D.Dash, G.Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.827 OF 2017
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 17th November, 2017 passed by the learned Sessions
Judge, Rayagada in Criminal Trial No.24 of 2016.
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Suna Majhi .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
===============================================
For Appellant - Mr. T.J. Pani,
Advocate.
For Respondent - Mr.S.N. Das,
Additional Standing Counsel.
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G.SATAPATHY
DATE OF HEARING:15.11.2023 :DATE OF JUDGMENT:04.12.2023
D.Dash,J. The Appellant, by filing this Appeal has challenged the judgment
of conviction and order of sentence dated 17th November, 2017 passed
by the learned Sessions Judge, Rayagada in Criminal Trial No.24 of
2016 arising out of Kashipur P.S. Case No.113 of 2015 corresponding to
G.R. Case No.306 of 2015 of the Court of learned Judicial Magistrate
First Class, (J.M.F.C), Kashipur.
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The Appellant (accused) thereunder has been convicted for
commission of offence under section-302 of the Indian Penal Code (for
short called as 'the IPC') and has been sentenced to undergo
imprisonment for life.
2. Prosecution case is that on 27.10.2015 evening, when Sambaru
Majhi (P.W.1) and his son Mali Majhi (deceased) who was sleeping in
the verandah of their house, it was around 10 pm, the accused came to
their house and woke up Mali Majhi and directed him to come with him;
Mali Majhi denied to accompany. Sambaru Majhi (P.W.1), who was
sleeping inside the house came out and asked not to disturb his son. The
accused then asked Sambaru Majhi (P.W.1) to keep quit and to get into
the room. It is stated that thereafter, accused forcibly took Mali Majhi
with him and went away. Mali did not return to the house and on the
morning, when Sambaru (P.W.1), father of Mali woke up and came out
of the house, he detected blood stain marks on the verandah of the house
of Jaimal Majhi (P.W.6). Sambaru Majhi (P.W.1) then went for search
of his son Mali Majhi and on the way, he met accused Suna Majhi who
disclosed before him to have killed his son Mali. Hearing this from the
accused, Sambaru Majhi (P.W.1) followed the blood stain marks and
discovered the dead body of his son Mali in the mustard field of Madan
Majhi (P.W.8). Sambaru Majhi (P.W.1) thereafter presented a report
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written by one Dolagobinda Naik (P.W.5) with the Inspector-In-Charge
of Police (IIC), Kashipur Police Station. Receiving the said written
report, the IIC treated the same as the FIR (Ext.1) and registering the
case, took up the investigation.
3. The Investigating Officer (I.O.-P.W.11), having examined the
informant, Sambaru Majhi (P.W.1) and other witnesses, visited the
spot, prepared the spot map (Ext.9), held inquest over the dead body of
the deceased in presence of the witnesses and prepared the report to
that effect (Ext.2/2). The dead body of the deceased was sent for
postmortem examination by issuing necessary requisition. The I.O.
(P.W.11) arrested the accused. While the accused was in custody is
said to have given the statement and stated to have kept the crowbar.
On production of the same, the crowbar was seized. The wearing
apparels of the accused along with his nail clippings and biological
samples on production by the Police constable who had escorted the
accused were seized. On completion of the investigation, the
I.O.(P.W.12) submitted the Final Form placing this accused to face the
Trial for commission of the offence under section-302 of the IPC.
4. Learned J.M.F.C., Kashipur, on receipt of the Final Form, took
cognizance of said offence and after observing the formalities,
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committed the case to the Court of Sessions. That is how the Trial
commenced by framing the charge for the aforesaid offence against this
accused.
5. In the Trial, the prosecution, in support of its case, has examined
in total twelve (12) witnesses. As already stated, the informant who is
the father of the deceased, who had lodged the FIR(Ext.1) is P.W.1.
P.W.2 is the co-villager of the Informant(P.W.1) before whom, the
Informant (P.W.1) was narrated the incident and went with him to the
Police Station. P.W.3 is the co-villager and the witness to the seizure
of the crowbar, P.W.8 is also the co-villager from whose field the dead
body of Mali Majhi was discovered. P.W.9 is the witness to the seizure
of wearing apparels of the accused and the deceased, nail clippings and
blood sample of the deceased, whereas P.W.10 is the Doctor who
conducted postmortem over the dead body of the deceased. The I.O. of
the case has come to the witness box at the end and has been examined
as P.W.11.
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 12. Important of those, are
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the FIR (Ext.1); inquest report (Ext.2/2); the spot map, Ext.9; the post
mortem report (Ext.7).
6. The accused person, in support his plea of denial and false
implication has, however, not tendered any evidence despite
opportunity.
7. The Trial Court upon examination of the evidence and their
evaluation at its level has held that the prosecution has been able to
establish the charge under section-302 of the IPC as against the
accused beyond reasonable doubt by leading clear, cogent and
acceptable evidence. Accordingly, the accused has been convicted for
the said offences and sentenced as aforestated.
8. Learned Counsel for the Appellant (accused) submitted that the
entire case of the prosecution is based upon the evidence of P.Ws.1 and
2, who are the father of the deceased (P.W.1) and co-villagers. He
further submitted that the Trial Court without properly scrutinizing the
evidence of P.Ws.1 and 2 and without testing the same in the touchstone
of the surrounding circumstances which are emanating from the
evidence of other prosecution witnesses as also the documents have
completely erred in holding that the prosecution has established the
charge against the accused beyond reasonable doubt. He submitted that
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when P.W.1 says that the accused had disclosed before him to have
committed the murder of his son Mali Majhi, that itself sounds highly
improbable. Secondly, the way and manner in which the accused is said
to have narrated before P.W.1 is not at all acceptable. It is also submitted
that even though for a moment, it is accepted that the accused and
deceased had together left the house of P.W.1 there being no further
evidence to connect the accused with the commission of murder of Mali
simply basing on the last seen theory, the Trial Court ought not to have
convicted the accused. He also submitted that the evidence of P.W.2 is
highly unbelievable and there arises discrepancies to the evidence of
P.W.1 and P.W.2 as regards their point of meeting etc. In view of all
these above, he urged that the impugned judgment of conviction and
order of sentence cannot be sustained; even though it is believed for a
moment that the crowbar was seized at the instance of the accused while
in police custody, when that has also not been independently connected
with the commission of the crime.
9. Learned Counsel for the State-Respondent while supporting the
finding against the accused rendered by the Trial Court submitted that
the last seen theory in this case when has been fully established and in
fact when there is no challenge to the same and the time between the
leaving of the accused and the deceased as also the detection being too
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short, the accused having not provided any explanation as to what
happened with Mali (deceased) and how was it that he sustained bodily
injuries and met his death, that itself according to him is enough to
fasten the guilt of the accused in holding that the prosecution has proved
its case against the accused to be the author of the crime removing all
such inferences as to involvement of any other in the said crime. He
further submitted that the evidence of P.Ws.1 and 2 being read together,
leaves no room of doubt that somebody else other than the accused
might have committed the offence.
10. Keeping in view the submissions made; we have carefully read
the judgment of conviction. We have also extensively travelled through
the depositions of all the witnesses i.e. P.W.1 to P.W.12 and have
perused the documents which have been admitted in evidence and
marked as Exts.1 to 13.
11. Father of the deceased is P.W.1 and he is the Informant who had
lodged the F.I.R., which has been admitted in evidence and marked
Ext.1. It is mentioned in the F.I.R. that during the night around 10 pm,
accused had gone to the house of P.W.1 and woke up Mali. He also
states his immediate response that when he asked the accused not to
disturb his son who was sleeping; the accused asked him to remain
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silent. It is further stated therein that thereafter accused took Mali with
him. P.W.1 in his evidence reiterated the same. It has also been stated
that Mali did not return during night and in the morning, he found the
blood mark on the danda (outer courtyard) of Jaimal Majhi (P.W.6),
who is his next door neighbour. It has also been stated that this accused
and his wife were standing nearby and when he asked the accused as to
the whereabouts of his son, Mali; the accused told before him to have
killed Mali by giving blows by means of crowbar on his head in that
outer courtyard of the house of Jaimal Majhi (P.W.6). His further
evidence is that the accused being asked about the dead body told him
that, the same was lying in the mustard field of Madan Majhi. P.W.1
has further stated that he had noticed the marks of dragging with blood
sticking from that outer courtyard of the house of Jaimal Majhi (P.W.6)
up to the field of Madan Majhi. His further evidence is that he having
proceeded in that direction, he detected the dead body of his son Mali
lying in the field with deep injuries on his head. This P.W.1 has stated
that at that time, co-villager Sani Majhi, P.W.2 came and when he was
told about the happenings, both went about the police station. During
cross-examination, he has stated that Sani Majhi(P.W.2) was passing
by that field and he called him. It has also been elicited during cross-
examination that no one was present in the field, when he and P.W.1
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arrived. It pains us to point out her that suggestion given by the defence
to what degree is improbable and rather we may say impossible a
happening when the area where the dead body was lying. The
suggestion is that Mali after returning from Dushera festival entered
into the house of the accused to molest his wife, when the accused
returned, the deceased hurriedly came out and died after fall. Where the
fall was is not stated and how the dead body was then found in the field
at a distance from the house is not suggested. There is not even the
suggestion to P.W.1 that the accused had not disclosed about his role in
killing the deceased before him. We find absolutely no other infirmity
in the evidence of P.W.1. His evidence receives full corroboration from
the F.I.R. version and there is neither any material discrepancy nor vital
omission so as to be termed as material contradictions.
12. With the above discussed evidence of P.W.1, when we approach
the evidence P.W.2, we find him to have stated that P.W.1 told him that
the accused had killed his son and dragged the dead body of his son to
the field of Madan Majhi. It is stated that the accused who was then in
the outer courtyard being asked told to have killed Mali by dealing
blow at his head by crowbar. He next says that he had gone to the field.
Although some variance remains in the evidence of P.Ws.1 and 2 as to
where P.W.1 met P.W.2, the same in our view has no impact over the
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consistent evidence of the P.Ws.1 and 2 as regards confession made by
the accused before them. When there stands the evidence of P.W.1 that
the accused had taken the deceased with him in the night from their
house waking up him from his sleep, the same coupled with the
evidence of P.Ws.1 and 2 as regards confession of the accused made
before them in the very morning, in our considered view are enough to
conclude with the prosecution has established the charge against the
accused beyond reasonable doubt, when the accused has provided no
explanation at all as to what happened after he and the deceased left the
house of the deceased in that night. In addition to the above, we too
find that the confession of the accused is also with regard to the user of
crowbar in dealing the fatal blows, the Doctor who had conducted
autopsy over the dead body of the deceased had noted the laceration of
the size of 18cm x 3cm x 2 cm on occipital side of the head of the dead
body with the blood stains and the fracture of the scalp with rupture on
cranial membranes, congested with brain matter having extensive
intracranial haemorrhage leading to his death, which is thus homicidal
have not even challenged. That apart, the seizure of crowbar in course
of investigation has been proved. Even though it is said to be not
pursuant to the statement of the accused while in police custody, it has
also been connected through the evidence of the Doctor (P.W.10) that
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said crowbar, M.O.-I can cause the injury on the head of the deceased
which he had deposed.
13. On a conspectus of discussion of evidence as hereinabove, we are
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 IPC is
well in order and the accused has rightly been convicted and sentenced
thereunder.
14. In the result, the Appeal stands dismissed and the judgment of
conviction and order of sentence dated 17th November, 2017 passed by
the learned Sessions Judge, Rayagada in Criminal Trial No.24 of 2016
are hereby confirmed.
(D. Dash),
Judge.
G. Satapathy, J. I Agree.
(G.Satapathy),
Judge.
Narayan
Designation: PERSONAL ASSISTANT
CRLA NO. 827 OF 2017
