Padman Khilla vs State Of Odisha
2023 Latest Caselaw 8043 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                           CRLA No.46 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 order of sentence dated 19th November, 2015 passed by the
    learned Sessions Judge, Koraput at Jeypore in Criminal Trial
    No.191 of 2012.

                                   ----

        Padman Khilla                             ....          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.S.K.Nayak,
                                              Addl. Government Advocate
    CORAM:
    MR. JUSTICE D.DASH
    DR. JUSTICE S.K. PANIGRAHI

    Date of Hearing : 14.07.2023          :    Date of Judgment:24.07.2023

D.Dash,J. The Appellant, by filing this Appeal, assails the judgment of

conviction and order of sentence dated 19th November, 2015

passed by the learned Sessions Judge, Koraput at Jeypore in

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Criminal Trial No.191 of 2012 arising out of G.R. Case No.396 of

2012 corresponding to Nandapur P.S. Case No.42 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, 8the IPC9). Accordingly, he has been

sentenced to undergo imprisonment for life.

2. On 19.07.2012 around 10 p.m. one Lokanath Guntha (P.W.2)

submitted a written report (Ext.1) scribed by one Madhu Chapadi

with the Inspector-in-Charge (IIC) of Nandapur Police Station

stating therein that on 18.07.2012 around 10 p.m., his co-villager

Smt. Hira Khilla (P.W.3) came to him and informed that after

taking dinner her son-Padman Khilla, the accused and her

daughter-in-law-Dullu Khilla, the deceased had slept in the night,

but when she was knocking the door, no response was coming.

Hearing this from Hira Khilla (P.W.3), who is the mother of

accused and mother-in-law of the deceased, Lokanath (P.W.2)

and other villagers, namely, Dhanajaya Guntha (P.W.4), Bhaskar

Guntha and others went to the house of Hira Khilla (P.W.3). They

knocked the door, calling the accused and the deceased. But there

came no response from inside and the door was also not opened.

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So, they broke open the door by using a crowbar and then to their

surprise, they found Dalu Khilar was lying on the floor with

bleeding injuries on her head and waist and Padman Khilla, the

accused, the husband of the Dollu was standing by her side

holding a Tangia. When Lokanath (P.W.2), Dhanajaya (P.W.4)

and others made their entry to the house, the accused told before

them that since his wife was having illicit relationship with

others, he committed her murder by striking her by means of that

Tangia. The accused then threatened them to kill if they would

force their entry to the room. Hearing such words from the

accused and after watching the scene for some time, Lokanath

(P.W.2), Dhanajaya (P.W.4) and others somehow tactically

managed to catch hold the accused and snatched away the Tangia

held by him. He then brought out the accused from the room and

kept him under guard.

On 19.07.2012 morning, a village meeting being convened,

the accused Padman confessed before the persons present in the

said meeting to have committed the murder of her wife by

suspecting her character.

Receiving the above written report (Ext.1) from Lokanath

(Inforamnt-P.W.2), the I.I.C. treated the same as F.I.R. and

registering the case, took up investigation. During investigation,

the I.O. (P.W.7) examined the Informant (P.W.2) and other

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witnesses. He then visited the spot and prepared the spot map

(Ext.9). Having conducted the inquest over the dead body, the

I.O. (P.W.7) prepared the inquest report (Ext.2) in presence of the

witnesses. He also seized the Tangia (M.O.I) stained with blood

and sample earth as well as blood stained earth from the spot

under seizure list (Ext.3). The dead body of Dallu then sent for

post mort examination by issuing requisition. The accused was

arrested and his wearing apparels were seized under seizure list

(Ext.4). Similarly the wearing apparels of the deceased were also

seized on production by the police personnel, who had carried

the dead body for post mort examination under seizure list

(Ext.5). The nail clippings of the accused were collected through

the Doctor attached to the Community Health Centre (CHC),

Nandapur and those were seized under the seizure list (Ext.11).

The Tangia (Katari-M.O.I) was sent to the Finger Print Expert and

so also other incriminating articles were sent for chemical

examination through court. On completion of the investigation,

the I.O. (P.W.7) submitted the final form placing the accused for

the Trial for commission of offence under section 302/506 of the

IPC.

3. Learned S.D.J.M., Koraput, on receipt of the above report,

having taken cognizance of the offence, after observing all the

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formalities, committed the case to the Court of Sessions for Trial.

That is how the Trial commenced against this accused by framing

the charge for the above offence.

4. In the Trial, the prosecution has examined in total seven (7)

witnesses. Out of them P.W.1 is the brother of the deceased and

thus the brother-in-law of the accused. The co-villager of the

accused, who had lodged the written report (Ext.1) at the Police

Station has been examined as P.W.2 whereas P.W.4 is the other

co-villager who had accompanied P.W.2 to the house of the

accused after hearing from the mother of the accused who has

been examined as P.W.3. The Sarpanch of the concerned Gram

Panchayat has come to the witness box as P.W.5 whereas P.W.6 is

the Doctor, who had conducted Post Mortem Examination over

the dead body of the deceased and P.W.7 is the Investigating

Officer.

The prosecution besides leading the evidence by examining

the above witnesses has also proved several documents which

have been admitted in evidence and marked Ext.1 to Ext.14.

Important, out of those are the FIR marked Ext.1, the inquest

report (Ext.2) and Ext.6 is the post mortem report whereas Ext.9 is

the spot map. The report of the Finger Print Expert is Ext.12 and

the report of the Chemical Examiner is Ext.14. That apart the

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seized Tangia, wearing apparels of the deceased and the accused

have been produced during Trial as Material Objects (M.O.I to

M.O.IV).

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

implication on account of enmity has examined himself with the

permission of the court as D.W.1.

6. The Trial Court, relying upon the evidence of P.W.2, P.W.3

and P.W.4 and with the aid of the provision contained in section

106 of the Evidence Act in the absence of any explanation from

the side of the accused as also, believing the extrajudicial

confession before those witnesses has held the accused guilty of

committing the murder of his wife Dallu.

7. As regards the nature of death of Dallu, we find from the

evidence of P.W.6 that he had noticed five chop wounds on the

scalp of Dallu of the size of 0.599 x 599 and there was fracture of

three ribs, i.e., 10th, 11th and 12th of the right side thorax. On

dissection as per the evidence of P.W.6 contusion on the brain

and membranes were found when the right side lung injured and

rupture of the right side splin, He has stated all such injuries to be

ante mortem in nature and has also noted all these features as

aforesaid in great detail in his report (Ext.6). As per his evidence

with the use of seized Tangia (M.O.I) all these injuries were

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possible, which he has reported under Ext.7. In addition to the

above, there is the evidence of P.W.7 who is the I.O. and held

inquest over the dead body of the deceased and prepared the

report (Ext.2) wherein he has noted all those in his own language.

Other witnesses P.W.2, P.W.3 and P.W.4 have also stated to have

seen the deceased with such injuries on her head etc. These

evidence being let in from the side of the prosecution, as we find,

from the side of the defence there is even no attempt to impeach

the same. Therefore, we find the death of Dallu to be homicidal in

nature.

8. Learned counsel for the Appellant (accused) submitted that

the evidence of P.W.2, P.W.3 and P.w.4 ought not to have been

relied upon by the Trial Court in holding the accused guilty of

committing the murder of his wife Dallu. She submitted that

when there is no eye-witness to the occurrence and as the

evidence of P.W.2, P.W.3 and P.W.4 are not believable to the

extent that they had seen the accused inside the house by the side

of the deceased holding the Tangia when they opened the door

by force, is not believable. She submitted that the evidence of

P.W.2, P.W.3 and P.W.4 appear to be highly improbable that after

killing his wife, instead of taking step to escape from the place,

would be standing by her side in the room waiting for being so

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detected by others. She, therefore, submitted that the Trial Court

has completely erred by taking the aid of provision of section 106

of the Evidence Act in holding that the prosecution, having

proved the essential facts, since has not explained the

circumstances within his special knowledge that how his wife

received such fatal injuries, she is liable. She further submitted

that the evidence as regards the extrajudicial confession coming

from the lips of these P.W.2,3,4 and 5 is not at all believable. She

submitted that when the accused had been detained and

thereafter, taken to the meeting place and is said to have

confessed, such confession cannot be said to be voluntary and

that apart, even the confession before the witnesses who first saw

him in the room as they say is not acceptable as in that situation

the accused would voluntarily so express is extremely hard to

believe.

9. Learned counsel for the State-Respondent submitted all in

favour of the finding of guilt returned by the Trial Court in

holding the accused guilty for commission of offence under

section 302 of the I.P.C. in intentionally killing his wife Dalu

(deceased). He submitted that the prosecution witnesses have no

reason to falsely implicate this accused in commission of the said

crime and they having stated everything in a natural manner

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when their evidence is wholly believable to the extent that when

they broke open the door of the room, they saw the wife of the

accused lying dead with bleeding injuries and the accused

standing by her side holding a Tangia; in the absence of any

explanation coming from the side of the accused, the Trial Court

has rightly convicted the accused for commission of the offence as

the author of such injuries upon the deceased. He submitted that

even keeping aside the evidence as to the extra judicial confession

of the accused, the finding of guilt is otherwise secured.

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

read the impugned judgment passed by the Trial Court. We have

also travelled through the depositions of the witnesses (P.W.1 to

P.W.7) and have perused the documents such as Ext.1 to Ext.14.

11. The deceased is the wife of the accused. The mother of the

accused and mother-in-law of the deceased has been examined as

P.W.3. Her evidence is to the effect that in the night when she

returned home after witnessing television in the house of one

Dhanu Guntha, she saw the door of the house to have been closed

from inside. She has stated that having found the door to have

been closed, she knocked the door and it was not opened. She

then state to have called P.W.2 and other villagers to come to her

house and they came and saw the door to have been closed from

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inside. It has been stated by her that those villagers knocked the

door and when it was not opened, they broke open the door by

means of an iron rod and all entered inside the house. Her

positive evidence is that when they made entry to the house, they

found the dead body of the deceased lying with bleeding injuries

and the accused who is her son being present was then sleeping.

She has also stated that the accused then told to have killed the

deceased. The exact words spoken by the accused has also been

uttered by this P.W.3 during her examination in the Trial, i.e.,

<MU MARIDELI, KEMITI MARIDELI JANA NAHI=. She has

further stated that the mattress over which the deceased was

lying was stained with blood. She of course says during cross-

examination that the accused was mad. But none of the other

witnesses have supported this version of that P.W.3 as regards

the insanity of the accused and that had also not been stated by

P.W.3 before any of the villager at any point of time and the

evidence of P.W.3 thus firmly stand as there is no cross-

examination on the above score.

When it is the evidence of P.W.3 that the door of the house

being opened, the deceased was lying on the ground and the

accused was sitting by her side and none others were present.

That has also been so stated by P.W.2 who is the Informant. He

has stated that this P.W.3 when called him and others, they came

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and seeing the door to have been closed from inside ultimately

opened the door by using a crow bar and then saw the accused to

be there holding a Tangia and his wife lying dead with bleeding

injuries. According to his evidence, it was a small room and the

blood spot was there on the wall and other places when Tangia

held by the accused was also stained with blood. He has further

stated about the accused confessing to have killed his wife. His

evidence is that the accused was then somehow restrained and

was tied by means of a rope after taking away the Tangia from

him. It is the evidence that in the morning there was a meeting

and then the F.I.R. was lodged with the police when the accused

was arrested. This witness has stated during cross-examination

that the mattress in the room was stained with blood and they

brought the accused outside where they tied him by means of a

rope. Nowhere this witness is stating that the accused was

mentally unsound. This is also the evidence of P.W.4 who is said

to have accompanied the P.W.2 and 3 to the house of the accused.

Given a careful reading to the depositions of all these three

witnesses, we find absolutely no reason/material to discard their

version that the door of the house being opened, they had seen

the accused to be there holding a Tangia and the dead body of his

wife then was lying on the floor with bleeding injuries. These

facts having bene proved by the prosecution, now in view of the

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provision contained in section 106 of the Evidence Act as the

accused has provided no explanation at all as to how it so

happened that his wife received such injuries when she was in

the house and when he during his examination as D.W.1 has

simply stated that the allegation levelled against him are all false

which on the face of the evidence of P.W.2,P.W.3 and P.W.4

cannot be believed for a moment as it is also not shown that any

of these witnesses had even any remote reason to falsely

implicate the accused, we find that the Trial Court is absolutely

right in ruling that the prosecution has proved the charge against

the accused beyond reasonable doubt. Having said as above, we

are of the view that even by not touching the evidence with

regard to the extrajudicial confession of the accused by accepting

the submission of the learned counsel for the accused and

keeping those beyond the arena of consideration, the finding of

guilt returned by the Trial Court holding the accused guilty of

committing the murder of his wife firmly stands.

On the conspectus of the analysis of the evidence made

hereinbefore, this Court finds that the judgment of conviction in

convicting the Appellant (accused) under section 302 of the IPC

by holding the prosecution to have proved the charge against the

Appellant (accused) beyond reasonable doubt has to sustain as

also the order of sentence.

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

of conviction and order of sentence dated 19th November, 2015

passed by the learned Sessions Judge, Koraput at Jeypore in

Criminal Trial No.191 of 2012 are hereby confirmed.

(D. Dash) Judge.

Dr. S.K. Panigrahi I agree.

(Dr.S.K. Panigrahi) Judge.

Basu

Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 25-Jul-2023 11:15:48

CRLA No.46 of 2016