Orissa High Court
Lokanath Jal vs State Of Odisha on 1 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.4 of 2013
In the matter of an Appeal under Section 383 of the Code of
Criminal Procedure, 1973 and from the judgment of conviction
and the order of sentence dated 26th July, 2012 passed by the
learned Sessions Judge, Kalahandi, Bhawanipatna, in Sessions
Case No.59 of 2010.
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Lokanath Jal .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.S.N.Mishra-4
(Advocate as Amicus Curiae)
For Respondent - Mr.S.N.Das,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G.SATAPATHY
Date of Hearing : 17.10.2023 : Date of Judgment : 01.11.2023
D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has
called in question the judgment of conviction and the order of
sentence dated 26th July, 2012 passed by the learned Sessions
Judge, Kalahandi, Bhawanipatna, in Sessions Case No.59 of 2010
arising out of G.R. Case No.91 of 2010 corresponding to Koksara
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P.S. Case No.17 of 2010 of the Court of the learned Sub-Divisional
Judicial Magistrate (S.D.J.M.), Dharamgarh.
The Appellant (accused) thereunder has been convicted for
committing the offence under sections 302 of the Indian Penal
Code, 1860 (for short, 'the IPC'). Accordingly, he has been
sentenced to undergo imprisonment for life and pay fine of
Rs.20,000/- (Rupees Twenty Thousand) in default to undergo
rigorous imprisonment for two (2) years for commission of the
said offence.
2. Prosecution Case:-
On 07.02.2010 afternoon, the parents of Aswini Kumar Jal
(informant-P.W.3) had been to their agricultural field. As they did
not return home, Aswini (Informant-P.W.3) proceeded to the
spot. There his father Lokanath disclosed before him to have
committed the murder of his wife, namely, Dura Jal, who
happens to be the mother of Aswini (informant-P.W.3). Aswini
(P.W.3) then saw the dead body of his mother near the nala.
Having learnt as above, Aswini (informant-P.W.3) immediately
lodged the written report being scribed by P.W.2 with the Sub-
Inspector (S.I.) of Police of Koksara Police Station (P.W.10). The
S.I. of Police (P.W.10), in the absence of the Officer-in-Charge
(OIC) of said P.S., received the written report, treated the same as
FIR (Ext.6) and registering the case, took up investigation.
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3. In course of investigation, the Investigating Officer (I.O.-
P.W.10) examined the Informant (P.W.3) and other witnesses as
also recorded their statements under section 161 of Cr.P.C. He
(P.W.10) having visited the spot, prepared the spot map (Ext.14).
He too held inquest over the dead body of the deceased and
prepared the reports to that effect (Ext.3, 4 & 5). The dead body of
the deceased was sent for post mortem examination by issuing
necessary requisition. Blood stained earth and sample earth have
been seized by the I.O. (P.W.10) under seizure list (Ext.12). It was
stated that the accused, while in police custody, gave the
statement to have concealed the weapon and stated that if he
would be led to the place, he would give recovery of the same.
Pursuant to the statement, the accused is said to have led the
police and other witnesses in giving recovery of the weapon,
which was seized under seizure list (Ext.1). The seized
incriminating articles were seized for chemical examination
through Court. On 09.04.2010, the I.O. (P.W.10) handed over the
charge of the investigation to the OIC (P.W.5), who re-examined
the witnesses, visited the spot and on receipt of the post mortem
report, completing the investigation, submitted the Final Form
placing the accused to face the Trial for commission of the offence
under section 302 of the IPC.
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4. Learned S.D.J.M., Dharamgarh, on receipt of the Final
Form, took cognizance of said offence 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 aforesaid
offence against the accused.
5. The prosecution, in support of its case, has examined in
total eleven (11) witnesses during Trial. As already stated, the
informant who happens to be the son of the deceased and the
accused is P.W.3, who had lodged the FIR (Ext.6) scribed by
P.W.2. P.Ws.1 and 4 are the witnesses to the statement of the
accused in giving recovery of the weapon and. P.W.8 is the
brother of the informant (P.W.3). The Doctor, who had conducted
the autopsy over the dead body of the deceased, has been
examined as P.W.7. The I.O., who has conducted the major part of
the investigation has been examined as P.W.10 whereas the next
I.O., who submitted the Final Form is P.W.5.
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 16.
Out of those; important are the FIR (Ext.6); inquest report (Ext.3);
the post mortem report (Ext.10) and the spot map (Ext.14). The
Chemical Examiner's report has been admitted in evidence and
marked Ext.17.
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6. The accused, having taken the plea of complete denial and
false implication, has not tendered any evidence in support of the
same. However, in his statement under section 313 Cr.P.C., he has
said that he had murdered his wife.
7. Mr.S.N.Mishra-4, learned counsel for the Appellant
(accused) submitted that there being no direct evidence to
establish the complicity of the accused, the prosecution case is
resting on two sets of evidence; first one is the extra judicial
confession of the accused and the next is the recovery of weapon
of offence, i.e., the tangia (M.O.I) at the instance of the accused
pursuant to his statement before the I.O. (P.W.10) and other
witnesses. He also submitted that the Trial Court has
unnecessarily given emphasis upon the evidence relating to the
above two sets when said evidence being properly scrutinized are
not at all acceptable. He also submitted that the Trial Court has
proceeded to judge the complicity of the accused completely on
an erroneous view point of law that the confessional statement of
the accused recorded by the police under section 27 of the
Evidence Act is the best evidence. He further submitted that the
statement of the accused recorded under section 313 Cr.P.C.
ought not to have been taken as the substantive evidence and he
also questioned its manner of recording in pointing out that
when the accused. So, when that accused has gone to deny all
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other questions put to him and as such, answer at the end runs in
complete contradiction. He, therefore, submitted that the
judgment of conviction and order of sentence impugned in this
Appeal are liable to be set aside.
8. Mr.S.N.Das, learned Additional Standing Counsel for the
Respondent-State submitted all in favour of the finding returned
by the Trial Court. While not disputing that no such direct
evidence has been produced from the side of the prosecution to
establish the charge against the accused, he contended that based
on the statement of P.W.3 receiving corroboration from the
evidence of other witnesses and the recovery of weapon of
offence pursuant to his statement given while in police custody in
leading the police and other witnesses to the particular place
known to him, have been rightly accepted by the Trial Court to
record the finding of guilt against the accused. He also submitted
that even if it is not believed that the accused had confessed
before P.W.3 and others to have committed the murder of his
wife; when P.W.3 arrived and found this accused there and his
mother (deceased) lying with severed head and body and there
remains no evidence that anyone else was present; there being no
explanation whatsoever falling from the mouth of the accused
whose plea as to absence is not at all believable of evidence of
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P.W.3 and others; the conviction is recordable on such evidence
only.
9. 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.11) and have perused the documents admitted in
evidence and marked as Ext.1 to Ext.13.
10. The prosecution having examined the Doctor (P.W.7), who
had conducted the autopsy over the dead body of the deceased
appears to have proved the nature of death of Dura to be
homicidal. The Doctor (P.W.7) had noticed three lacerated
injuries on the maxillary prominence to half inch below the left
ear lobule; on the left shoulder joint. He too had noticed the
injury to the oesophagus separated, trachea etc. The head was
found to have separated from T-5 vertibra. As per his evidence,
the death was homicidal in nature and it was on account of injury
to the vital organs like spinal cord, oesophagus trachea with veins
and arteries. The finding of the Doctor (P.W.7) have not at been
challenged. In addition to this, we also find the evidence of the
I.O. (P.W.10), who has deposed to have held in the inquest over
the dead body of the deceased and his report (Ext.3), which
reveals his all such notes in his language and other witnesses
have also stated to have seen the deceased lying with such
JCRLA No.4 of 2013
injuries. For all these evidence, we are left with no option but to
say that the death of Dura was homicidal.
11. In order to address the rival submission, we are now called
upon to examine the evidence on record.
P.W.1 is a co-villager, who has stated that when police
basing upon the FIR (Ext.6) lodged by the son (P.W.3) came to the
spot for investigation, he was present and there, the accused
being present, confessed to have committed the murder of his
wife. The evidence of this witness as to the confession of the
accused when police asked the accused about the incident is no
doubt admissible in view of the provision contained in section 25
of the Evidence Act.
P.W.2 has stated to have scribed the FIR (Ext.6) being
lodged by P.W.3, who told that his father had murdered his
mother.
P.W.3, who is the son of the accused and the deceased. He
stated that around 5.30 p.m., when he went to the land where his
parents had been to work, he saw the accused dealing blows by
means of tangia upon the deceased, who was lying on the
ground. It is stated by him that he remained at a distance and saw
the accused going to the nearby well holding the blood stained
tangia in his hand and washing that tangia. He has further stated
that when he went near the accused, he told him to have killed
JCRLA No.4 of 2013
the deceased and immediately thereafter left in a bicycle carrying
that tangia. It has also been stated by P.W.3 that immediately
when he turned his attention, he saw her mother (deceased) lying
dead being tied by rope and her head had completely detached
from her body. He has further stated that on returning home, he
informed this fact to Dinger jal, Biswamantha (P.W.8) and others.
The accused, as per the evidence of the informant (P.W.3) was
then not traced out and he was ultimately found in the house of
his sister in the nearby Village in the bordering Chhatisgarh State.
So, he was brought and thereafter, the matter was reported by
lodging the FIR (Ext.6). During cross-examination, he has stated
that the accused was traced out around 9.00 p.m. in the night.
Having said during cross-examination, he has gone to state that
he had not stated before the police to have seen the assault by the
accused upon the deceased. He has gone to explain that out of
fear, he told lies before the police. It has also been stated by P.W.3
that he had not stated before the police to have seen the accused
leaving on his bicycle from the spot carrying the axe. When P.W.2
states to have scribed the FIR (Ext.6), this P.W.3 does not name
P.W.2 to have so scribed the FIR (Ext.6). This witness is stating
that when they came after tracing out the accused, police had
arrived at the spot and he is not in a position to show as to on
whose report, police had come. The evidence of P.W.4, however,
run in the same vein as that of P.W.1 when he says that the
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accused confessed to have committed the crime. The evidence of
P.W.3 is acceptable that on his arrive, he saw the accused (father)
and his mother (deceased) lying dead. It is not brought out from
him (P.W.3) that anyone else was then present. It that situation,
the accused is not coming forward to state that he was then
absent in the village, which has no basis as is seen from the
evidence on record.
P.W.8, however, has stated that when he with P.W.3
searched for the accused and found him in the village
Jhakarpada, they brought him with them to their villager and
then the accused, being asked, told that he had killed the
deceased. The accused has been forwarded to Court on 9.2.2010
as stated by the I.O. (P.W.10).
Next, the I.O. (P.W-10) has stated that the accused, pursuant
to his statement while in custody, had taken him and other
witnesses to the place in giving recovery of the tangia (M.O.I)
from inside the heap of chips, which he seized under seizure list
(Ext.1). This has been stated by P.W.1 in very clear terms that the
accused led the police and others including himself and gave
recovery of the axe below the earth by digging out the earth and
handed over the same to the police. In the FIR lodged by P.W.3, it
has been stated that when P.W.3 arrived at the spot and saw the
accused, that accused confessed to have committed the murder of
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his wife and then immediately, he saw the body of her mother
(deceased) being separated from her body lying nearby.
We find no reason to disbelieve the evidence of P.W.3, who
is none other than the son of the deceased and accused. His
evidence receive corroboration from the evidence of other
witnesses before whom he had disclosed about the incident. The
evidence on record with regard to recovery of tangia at the
instance of accused while in police custody from the place known
to him about its seizure is quite acceptable. The evidence of the
witnesses as regards the accused confessing before them as we
have already discussed are not liable to be rejected when as none
of them is found to have any reason to falsely implicate the
accused. The accused having said that he was absent in the
village is not even deriving any remote support from the
evidence of any of the witnesses. But then there comes no
explanation as to how all these happenings from the side of the
accused.
On a conspectus of analysis of the evidence hereinabove,
even without taking note of the statement of the accused recorded
under section 313 Cr.P.C., this Court finds that the prosecution
has proved the charge against the accused that he has committed
the murder of his wife (Dura) beyond reasonable doubt.
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12. In the result, the Appeal stands dismissed. The judgment of
conviction and the order of sentence dated 26th July, 2012 passed
by the learned Sessions Judge, Kalahandi, Bhawanipatna, in
Sessions Case No.59 of 2010 are hereby confirmed.
(D. Dash)
Judge
G.Satapathy, J. I Agree.
(G.Satapathy)
Judge
Basu
Signature Not Verified
Digitally Signed
Signed by: BASUDEV NAYAK
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 02-Nov-2023 17:18:01
JCRLA No.4 of 2013
