Sipriyan Digal vs State Of Odisha
2023 Latest Caselaw 8032 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                          JCRLA No.11 of 2017

          In the matter of an Appeal under section 383 of the Code of
    Criminal Procedure, 1973 and from the judgment of conviction
    and order of sentence dated 27th January, 2017 passed by the
    learned Sessions Judge, Kandhamal, Phulbani in Sessions Trial
    No.215 of 2012.
                                       ---

        Sipriyan Digal                       ....      Appellant

                                -versus-

        State of Odisha                      ....     Respondent

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

                For Appellant    -     Mr.Amrut Baral,
                                       Advocate.
                For Respondent -       Mr.P.K.Mohanty,
                                       Additional Standing Counsel
    CORAM:
    MR. JUSTICE D.DASH
    DR. JUSTICE S.K.PANIGRAHI

Date of Hearing : 07.07.2023 :: Date of Judgment:24.07.2023

D.Dash, J. The Appellant, by filing this Appeal, from inside the jail,

has challenged the judgment of conviction and order of sentence

dated dated 27th January, 2017 passed by the learned Sessions

Judge, Kandhamal, Phulbani in Sessions Trial No.215 of 2012

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arising out of G.R. Case No.116 of 2012 corresponding to

Sarangada P.S. Case No.18 of 2012 of the Court of the learned Sub

Divisional Judicial Magistrate (S.D.J.M.), Balliguda.

The Appellant (accused) thereunder has been convicted for

commission of offence under section 302 of the Indian Penal

Code, 1860 (in short, 'IPC') and sentenced to undergo

imprisonment for life.

2. Prosecution case is that accused married Rina Digal

sometime in the year 1992. After marriage, they were staying in

village Pirigada under Sarangada Police Station in the District of

Kandhamal. They stayed as neighbours of Joseph, who is the

brother-in-law of the accused (Rina's brother). They used to often

quarrel on some monetary matters. On 27.04.2012 morning

around 9 am, Rina came home after fetching water from outside.

The accused then was present in the house. He suddenly threw

some coins on the floor. Seeing the coins lying on the floor, Rina

bent down to collect the coins. It is said that the accused then

finding the opportune moment, dealt axe blow on her head.

Receiving the blow, Rina ran outside in order to escape from

being assaulted further but in the process, she fell down. The

accused then chased her and dealt repeated blows upon her. He

then threatened to assault others with that tangia and knife, if

they would dare to come to rescue Rina. Joseph (P.W.3) saw the

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assault and also heard about everything from his nephew (son of

Rina and accused).

The Gram Rakhi of the village informed the matter over

phone to the police station. The Officer-in-Charge (OIC) of

Sarangada Police Station, receiving the same telephonic message

from Gram Rakhi, entered the fact in the Station Diary Book

maintained at the Police Station and immediately, rushed to the

spot. Joseph (P.W.3) then lodged a written report seeing police at

the spot. The said written report was treated as FIR and case

being registered, investigation was taken up by the OIC (P.W.14).

3. In course of investigation, the I.O (P.W.14) examined the

informant (P.W.3), who lodged the written report before him at

the spot (Ext.4). The spot map was prepared by the I.O (P.W.14).

He then seized the blood stained and sample earth as well as the

knife under seizure list (Ext.1). The accused being searched was

not found at the spot. Some other witnesses are examined by

P.W.14 and he recorded their statements under section 161 of the

Cr.P.C. The accused then being searched and found in the village

was apprehended and taken to custody by the I.O. (P.W.14). The

accused during that period in custody has stated to have kept the

Tangia in a particular place and expressed that he would give

recovery of the same if taken to the place of keeping of that

tangia. The statement of the accused was recorded by the I.O.

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(P.W.14) vide Ext.11/2. The accused then led the I.O (P.W.14) and

other witnesses to the western area of the village and showed the

tangia in the bush by the side of the road. Tangia was recovered

and seized along with the wearing apparels of the accused under

seizure list (Ext.6). Rina did not met instantaneous death. She

being shifted in a critically injured condition to the Sub Divisional

Hospital, Baliguda, the I.O (P.W.14) went there and came to

know that Rina had succumbed to the injuries. Inquest was then

held over the dead body of the deceased and report to that effect

was prepared in presence of the witnesses. Steps were taken for

post mortem examination of the dead body of Rina. The

incriminating articles seized by the I.O. (P.W.14) were sent for

chemical examination through Court. The accused was

forwarded in custody to Court.

4. Finally, on completion of investigation, I.O (P.W.14)

submitted the Final Form placing the accused to face the Trial for

commission of offence under section 302 of the IPC.

5. Learned SDJM, Balliguda on receipt of the Final Form, took

cognizance of the offence under section 302 of the IPC 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 said offence against the accused.

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6. In the Trial, the prosecution in total has examined fourteen

(14) witnesses. As already stated, the informant, who is the

brother of the deceased and brother-in-law of the accused, has

been examined as P.W.3 and he had lodged the FIR (Ext.4). The

two sons of the accused and the deceased have been examined as

P.W.8 and P.W.11 as in their presence, the entire incident took

place. P.W.4 is another witness to the occurrence and the Gram

Rakhi of the village has been examined as P.W.1. P.W.7, P.W.12

and P.W.13 are the witnesses to the recovery of the tangia at the

instance of the accused pursuant to his statement. The doctor

who had conducted Post Mortem Examination over the dead

body of Rina has come to the witness box as P.W.2 and the first

I.O., being examined as P.W.14, the next I.O. who completed the

investigation, has come to the witness box as P.W.10.

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.15. Out of those, the important are the FIR, Ext.4, inquest

report, Ext.5, Post Mortem Report, Ext.2, statement of the

accused, Ext.11/2. The knife and tangia which had been seized in

course of investigation were produced during the Trial as

Material Objects (M.O-I and M.O.II).

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8. The accused in support of his plea of denial and false

implication has, however, not tendered any evidence.

9. The Trial Court on detail examination of the Doctor, who

had conducted Post Mortem Examination over the dead body of

the deceased i.e. P.W.2 and on going through his report (Ext.2) as

also the evidence of the I.O (P.W.14) and other witnesses has

come to a conclusion that the death of the deceased was

homicidal in nature. 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, who had conducted the Post Mortem

examination over the dead body of the deceased under

requisition by the I.O. (P.W.14) has in clear terms stated to have

noted four lacerated wounds and on dissection he found a huge

haematoma of size 14.5 cm x 10 cm below the frontal area

extending up to the occipital area of scalp and another

haematoma of the size of 6 x 4 cm over the left temporal area of

scalp. A vertical linear fracture of frontal bone of the size 9 x 0.5

cm, a horizontal linear fracture of occipital bone of the size 7 x0.5

cm over the occipital bone had also been noticed. She noticed the

brain membranes was ruptured of the size of 7 x 2 cm over the

frontal lobe, huge subarachnoid haematoma involving the whole

of frontal and occipital lobes of cerebral hemispheres were found.

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She has opined the injuries to be ante mortem and the death to be

homicidal. The I.O (P.W.14), having held the inquest over the

dead body of the deceased has noted such injuries in his report

(Ext.5). Other witnesses including P.W.3 have also stated to have

seen the deceased with such injuries on her person. All such

evidence having not been questioned by the defence and thus

when firmly stand, we find absolutely no difficulty in affirming

the finding of the Trial Court that Rina met homicidal death.

10. Learned Counsel for the Appellant (accused) submitted that

the prosecution in this case has not proved the motive behind the

crime and when P.W.3, P.W.4 and P.W.5 have clearly stated to

have reached the spot after the assault was over, their evidence

that they had seen the incident especially as to the assault is not

to be believed. He further submitted that the evidence of P.W.8

and P.W.11, who are the two sons of the accused and the

deceased being contradictory to their previous version during

investigation, in view of the omission of an important fact just

before the incident, the Trial Court ought not to have accepted

their evidence as credible. He also submitted that they being

interested witnesses, the Trial Court ought not to have ignored

such omission which amounts to material contradiction and

ought not to have accepted their evidence that they had been seen

the incident taking place before them as they have stated. He

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therefore submitted that the prosecution evidence as to the role of

this accused and the act said to have been done are liable to be

rejected.

11. Learned Counsel for the Respondent-State submitted that

the evidence on record is enough to conclude that it is the

accused, who had done his wife to death. He further submitted

that most importantly, the two sons of the accused and the

deceased i.e. P.W.8 and P.W.11 when have stated in clear terms

that the accused, who is their father had assaulted their mother to

death in their presence; since they have absolutely no axe to grind

against the accused, there is no basis at all to discard their

evidence as to the complicity of the accused.

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

read the impugned judgment of conviction. We have also

extensively travelled through the depositions of the witnesses

(P.W.1 to P.W.14) and have perused the documents admitted in

evidence and marked as Ext.1 to Ext.15.

13. The prosecution has examined the two sons of the accused

and the deceased as P.W.8 and P.W.11 and they are the most

important witnesses.

P.W.8 is aged about 12 years whereas the age of P.W.11 is

11 years at the time when the occurrence took place. P.W.8 has

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deposed in the year 2013 whereas P.W.11 has deposed in the year

2015. At the time when they deposed in Court, they were reading

in class VII. It is the evidence of P.W.8 that after his mother came

with water and kept the same in the house, the accused (father)

threw some coins near the door inside the house and then his

mother went to collect the coins. He further stated that when his

mother was collecting the coins, the accused (father) brought out

an axe and dealt blow on her head. It is his evidence that this

mother receiving the blow started running outside and while

running away, fell outside the house and thereafter the accused

(father) dealt further blows by means of axe on her head. Being a

child of 11 years, his response has been stated that he out of fear

ran away and went to inform his maternal uncle Joseph (P.W.3).

He has also stated that when her mother again got up and ran

away, the accused (his father) chased her and near the bamboo

bush again assaulted her and gave kicks. Despite cross-

examination, we find that no such material has been elicited from

this P.W.8 to even entertain slightest doubt with regard to his

presence at home at the relevant time. The only ground raised to

discard his evidence is that he had not stated before the Police as

regards to the fact that his father had thrown the coins and while

his mother (deceased) was collecting coins, his father (accused)

assaulted her mother. The evidence of P.W.11 is the other son

who has reiterated the evidence as to what P.W.8 has stated. His

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evidence is also in the same vein. This witness being cross-

examined, no such material has come to surface to raise any

doubt with regard to his presence at home at the relevant time

with P.W.8. The same criticism is leveled against the P.W.11 as is

leveled against this P.W.11. It is true that this witness has not

stated before Police as to the fact that accused (father) had thrown

coins and when their mother was collecting the coins, the accused

(father) assaulted her mother. Though this amounts to an

omission, said omission, in our considered view, does do not

affect the credibility and veracity of the evidence of P.W.8 and

P.W.11 and, therefore, we are unable to accept the criticism in

support of their evidence being pushed beyond the zone of

consideration.

The settled position of law is that the statements given by

the witnesses before the Police are not meant to be so detail and

elaborate and it is also not expected to be such looking to the

situation under which the same are recorded. When the

omissions are vital those only merit consideration. But mere

omissions of minor aspect will not provide any justification to say

that witness has developed the matter at a later stage and thus is

a lier. Here the initial part of the happening when has not been

stated by P.W.8 and P.W.11 before the Police during

investigation, we must keep in mind their mental state at that

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point of time that their mother was killed by none else than their

father, who is the accused and it was brutal and painful for them

to see just like a horror film. These two sons saw their mother

being assaulted to death by the accused and for them to omit

some happenings/proceeding to that assault is not that vital an

omission when the actual incident of assault as have been stated

by them stand firm and consistent.

In addition to the evidence of P.W.8 and P.W.11, we also

find the evidence of P.W.3, whose house is at a distance of 100

feet from the house of the accused which has been proved

through the spot map (Ext.12). When he with other villagers

reached the spot, the deceased was lying in front of the house.

The accused when was present in the house at the relevant time

as has been established through P.W.8 and P.W.11 who are two

sons. There comes no explanation from his side as to how his wife

(deceased) died. This in the peculiar facts of the case is a

circumstance worth reflection, especially when he states in his

statement recorded under section 313 of the Cr.P.C. that he had

no knowledge as to how his wife (deceased) died.

In addition to the evidence of P.W.8 and P.W.11, we find

corroborative evidence falling from the lips of P.W.4.

Furthermore, it having been proved through P.W.14 that the

seized axe was recovered from near the bush pursuant to the

statement which was given by the accused while in Police

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custody, that too provides further support to the prosecution case

besides the evidence of the Doctor (P.W.2) that the injuries are

possible by means of the axe seized in course of investigation.

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 Act is well in order and the accused

has rightly been convicted for the offence under section 302 of the

IPC and sentenced thereunder.

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

conviction and order of sentence dated 27th January, 2017 passed

by the learned Sessions Judge, Kandhamal, Phulbani in Sessions

Trial No.215 of 2012 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: 25-Jul-2023 17:11:14

JCRLA No.11 of 2017