Kala @ Kishore Ghadei vs State Of Odisha
2023 Latest Caselaw 8045 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK
                        JCRLA No.66 of 2016

           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 20.10.2016 passed by the learned Additional
    Sessions Judge, Athgarh in Sessions Trial Case No.396 of 2012 arising
    out of C.T Case No. 434 of 2012 of the Court of learned Sub Divisional
    Judicial Magistrate (SDJM), Athgarh.


         Kala @ Kishore Ghadei                ....          Appellant
                                   -versus-
         State of Odisha                      ....          Respondent

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

                For Appellant      -     Ms. Anima Kumari Dei,
                                         Advocate.
                For Respondent     -     Mr.S.S.Mohapatra,
                                         Additional Standing Counsel
                CORAM:
                MR. JUSTICE D.DASH
                DR. JUSTICE S.K.PANIGRAHI

Date of Hearing : 30.06.2023 :: 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 20.10.2016, passed by the learned Additional Sessions Judge, Athgarh in Sessions Trial Case No.396 of 2012 arising out of C.T Case No. 434 of 2012, corresponding to Tigiria P.S. Case No.102 of 2012 of the Court of the learned Sub Divisional Judicial Magistrate (SDJM), Athgarh.

JCRLA No.66 of 2016 {{ 2 }}

The Appellant (accused) thereunder has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, 'IPC') and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.5000/- in default to undergo rigorous imprisonment for one month.

2. Prosecution case is that sometime past the midnight of 24.07.2012, Jadu Ghadei (P.W.21) informed the brother of the deceased (P.W.1) that this accused, who is his son (Jadu's son), caused the death of his wife Indumati Ghadei (deceased). The brother of the deceased, namely, Arakhita Behera (P.W.1) then lodged a written report with the Inspector-in-Charge (IIC) of Tigiria Police Station.

3. The I.I.C., receiving the said written report, treated the same as FIR (Ext.1) and registering the case, took up investigation. The I.O (P.W.27) in course of investigation, examined the informant (P.W.1), visited the spot and examined other witnesses. He then held inquest over the dead body of the deceased in presence of the witnesses and prepared the inquest report (Ext.2). He also seized the blood stained and sample earth from the spot with some broken bangles and white napkin stained with blood, faded yellow colour chadar stained with blood and one mat stained with blood under the seizure list to that effect. The dead body of Indumati was then sent for post mortem examination by issuing necessary requisition. The accused was arrested and his wearing apparels were seized. It is stated that the accused while in police custody, made a statement as regards the keeping of Katari in his house and pursuant to the said statement, he is said to have led the I.O (P.W.27) as well as other witnesses in giving recovery of the said Katari from his house which had been kept underneath a loaded bag. The

JCRLA No.66 of 2016 {{ 3 }}

accused was then forwarded in custody to the Court. That weapon Katari being sent to the Doctor (P.W.29) for examination, his report is that with the said Katari, the injuries sustained by the deceased was possible. The incriminating articles were then sent for chemical examination through Court.

4. On completion of investigation, Final Form was submitted placing the accused to face the Trial for commission of offence under section 302 of the IPC.

5. Learned SDJM, Athagarah 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.

6. In the Trial, the prosecution in total has examined twenty nine (29) witnesses. As already stated, P.W.1 is the informant whereas P.W.6, P.W.7 and P.W.14 have been projected as the eye witnesses to the occurrence. Post occurrence witnesses have been examined as P.W.8, P.W.10, P.W.15 to P.W.20 and P.W.22 to P.W.25.

P.W.3, P.W.4 and P.W.5 are the witnesses to the inquest whereas the Doctor, who had conducted Post Mortem examination over the dead body of the deceased has been examined as P.W.29 and I.O has come to the witness box as P.W.27.

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.18. Out of those, the important are the FIR, Ext.1, Inquest Report, Ext.2, Post Mortem

JCRLA No.66 of 2016 {{ 4 }}

Report, Ext.31, Spot Map, Ext.13. The answer to the query made by the I.O (P.W.28) which has been given by P.W.29 is Ext.17.

7. The defence in support of his plea of denial and false implication has not tendered any evidence.

8. The Trial Court upon examination of evidence of the Doctor (P.W.29) and on going through the report as also other evidence on record including that of P.W.27 and the so called eye witnesses P.W.6, P.W.7 and P.W.14, have arrived at a conclusion that Indumati met a homicidal death. In fact this aspect of this case was not under the challenge before the Trial Court and this is also the situation before us.

9. The Doctor (P.W.29), who had conducted autopsy over the dead body of the deceased, has stated to have noticed seven external injuries. All such injuries are said to be ante mortem in nature and caused by a sharp cutting weapon. According to him, the lacerated injury covering left auxila of size 20 x 10 c.m. is sufficient in ordinary course of nature to cause death. All such injuries have been noted in the post mortem report (Ext.31).

The I.O (P.W.27) during inquest has seen such injuries and had noted all those in his report Ext.2 in his own language. The eye witnesses P.W.6, P.W.7 and P.W.14 as well as other witnesses have deposed to have seen the deceased lying dead with injuries. With such overwhelming evidence on record remaining unchallenged, we are wholly in agreement with the finding of the Trial Court that Indumati's death was homicidal.

10. Learned Counsel for the Appellant (accused) submitted that the evidence of the witnesses, who have been examined as to have seen the

JCRLA No.66 of 2016 {{ 5 }}

incident wherein the accused caused injuries upon the deceased which led to her death are not at all believable. In support of the same, he has taken the depositions of P.W.6, P.W.7 and P.W.21. He further submitted that when P.W.6 & P.W.7 having heard the alarm of P.W.21, had gone to the place, the version of P.W.21 is otherwise and therefore, when the evidence of P.W.21 does not inspire confidence that he had at all seen the accused inflicting the injuries upon his wife (deceased); the evidence of P.W.6 and P.W.7 cannot be believed and there the Trial Court has completely faulted in accepting the version of P.W.6 and P.W.7., having not appreciated the same in the touchstone of the evidence of P.W.21. He therefore, submitted that the finding of guilt returned by the Trial Court basing upon the evidence of prosecution witnesses mainly, P.W.6, P.W.7 and P.W.21 cannot be sustained.

11. Learned Counsel for the Respondent-State again inviting our attention to the depositions of P.W.6, P.W.7 and P.W.21 submitted that the Trial Court on detail analysis of the same has rightly come to the conclusion that there is no material on record to discredit their testimony and therefore, it has rightly been said by the Trial court that through the evidence of P.W.6 and P.W.7, the act of the accused in causing the death of his wife (deceased) has been proved beyond reasonable doubt.

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.29) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.31.

13. Starting from the evidence of P.W.21, it is seen that in the relevant night, he heard the groaning sound of Indumati in her bed room

JCRLA No.66 of 2016 {{ 6 }}

and so he raised alarm to attract the attention of the villagers. He further states to have seen Indumati lying dead on the ground in pool of blood. It is not his evidence that this accused (Kala) was sleeping with his wife (deceased) in the relevant night in that very room. He is also not stating that on his arrival hearing the groaning sound of Indumati and after raising the alarm, he had seen accused Kala in that room or even seen accused Kala to be running away or leaving the place. During cross- examination, he has stated that the said room was ten (10) feet apart from his shop-cum-house. He further states that hearing the cry of Indumati, he raised alarm and immediately, rushed to the bed room. It is his evidence that the door of that room was open and accused Kala was not present at that room. He has further expressed his inability to say that if on his arrival any other person fled away from that room. His clear evidence is that as to who murdered Indumati, was not known to him.

When it is the prosecution case that hearing the alarm of P.W.21, P.W.6, and P.W.7 went there, that P.W.6 has said that he found the room of accused to be locked from inside and light was on in that room. He therefore through the window saw that accused Kala was assaulting his wife Indumati by means of a Katari. He has further stated that all of a sudden the accused opened the door and pushing them, fled away from the spot. It has been stated by him that hearing the hullah of P.W.21, who is the father of accused, he woke up from sleep and rushed to the spot and by that time ten (10) to twelve (12) persons had already gathered. He further states that when accused left the house, five (5) to then (10) persons were also present and they could not catch him despite chasing him up to the end point of backyard. He states to have seen the accused assaulting the deceased inside the room from the

JCRLA No.66 of 2016 {{ 7 }}

window. He has further stated that he was disclosing all said facts for the first time in the Court i.e. on 19.02.2013 when the incident admittedly had taken place in the night of 24.07.2012. Thus, when P.W.21, the first witness who having heard the cry of Indumati and raising alarm had rushed to the room which according to him was open and then accused was not there; the evidence of P.W.6 is in complete variance of the evidence of P.W.21. Therefore, doubt arises in mind as to how far the version of P.W.6 is true. The very reason of P.W.6 going to the place is the alarm of P.W.21 and when he does not implicate the accused in any way not even by saying that the accused ran away from the spot when he went and he simultaneously saw the deceased with injuries lying on the ground in pool of blood, it would be highly hazardous to accept the evidence of P.W.6 that he had gone, saw the door locked from inside and saw from the window that the accused was inflicting blows upon the deceased by sharp cutting weapon and then all of a sudden, he came out and pushing them, left the place. The same is the evidence of P.W.7, who states that hearing the shout in the house of the accused, he rushed there and saw accused and his wife in the room whose doors were locked from inside. So the immediate witness i.e P.W.21 when is not stating regarding any role of the accused or even as to his presence and it is not placed through evidence from the side of the prosecution on that score that P.W.21 in the Trial is stating falsehood, the evidence of P.W.6 and P.W.7 that they had seen the accused inflicting injuries upon the deceased get pushed into the thick cloud of doubt. Therefore, we are not in a position to say that the prosecution has proved that it is the accused who is the perpetrator of the crime through the evidence of these three witnesses i.e. P.W.6, P.W.7 and P.W.21. When the account given by the witnesses P.W.6 and P.W.7, who have

JCRLA No.66 of 2016 {{ 8 }}

been projected by the prosecution as the eye witnesses, do not appear to be credible being analyzed in the backdrop of the evidence of the first eye witness P.W.21, even accepting for a moment that the accused had given recovery of the Katari from his house which is ordinarily available in the house of the villagers and when that Katari has not been further connected through clear cogent and acceptable evidence to have been used in causing the injuries upon the deceased, we are led to hold that the finding of guilt against the accused as has been returned by the Trial Court is vulnerable and thus cannot be sustained.

14. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 20.10.2016 passed by the learned Additional Sessions Judge, Athgarh in Sessions Trial Case No.396 of 2012 are hereby set aside.

The Appellant (accused) be set at liberty forthwith, if his detention is not warranted in connection with any other case.

(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: 24-Jul-2023 14:52:34

                     JCRLA No.66 of 2016