Larisa Sanamajhi vs State Of Orissa
2023 Latest Caselaw 14388 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                            JCRLA No.15 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 30.10.2015 passed by the learned Sessions Judge,
    Phulbani in Sessions Trial No.229/2012.
                                   ----

         Larisa Sanamajhi                     ....         Appellant

                                   -versus-

         State of Orissa                       ....          Respondent

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

                 For Appellant     -      Mr.S.N. Mishra-4
                                          (Amicus Curiae)

                 For Respondent    -      Mr.S.K. Nayak,
                                          Additional Government Advocate

    CORAM:
    MR. JUSTICE D.DASH
    MR. JUSTICE G. SATAPATHY
    Date of Hearing : 03.11.2023         : Date of Judgment: 13.11.2023

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

called in question the judgment of conviction and order of sentence

dated 30.10.2015 passed by the learned Sessions Judge, Phulbani in

Sessions Trial No.229 of 2012 arising out of G.R. Case No.211 of 2012

corresponding to Kotagarh P.S. Case No.31 of 2012 on the file of the

learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Baliguda.

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The Appellant (accused) thereunder has been convicted for

commission of offence under section 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.1,000/- (Rupees One

Thousand) in default to undergo rigorous imprisonment for one year for

commission of the offence under section 302, I.P.C. and undergo simple

imprisonment for one year for commission of the offence under section

309, I.P.C. with the stipulation that the substantive sentences would run

concurrently.

2. Prosecution Case:-

On 16.07.2012/17.07.2012 around 1 a.m., the accused and his

wife, namely, Rebati were sleeping in their room. During then accused

suddenly dealt a deadly blow by means of an axe on the neck of his

wife, which resulted her death at that place itself. It is further stated that

the accused after intentionally causing the death of his wife attempted to

commit suicide by cutting his own neck by that very axe, which was

snatched away.

One Triku Mallick (P.W.4) orally reported the matter before the

Inspector-in-Charge (IIC) of Kathagarh Police Station on 16.07.2012

around 10.45 a.m. The I.I.C. reduced the version of Triku Mallick

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(P.W.4) into writing in presence of witnesses, namely, Amima and

Ajita. Treating the same as F.I.R., the I.I.C. (P.W.9) took up

investigation.

3. In course of investigation, the Informant (P.W.4) was examined

by the Investigating Officer ( I.O.-P.W.9) and he then examined other

witnesses. He also visited the spot and prepared the spot map (Ext.11).

He seized the blood stained earth and sample earth from the spot in

presence of the witnesses under seizure list. Having held inquest over

the dead body of the deceased and preparing the report (Ext.8), he sent

the dead body for post mortem examination by issuing necessary

requisition to that effect. The I.O. (P.W.9) received the Post Mortem

Examination Report and sent the incriminating articles as well as the

weapon, i.e., axe, which had been seized in course of investigation for

chemical examination through Court.

4. On completion of investigation, the I.O. (P.W.9) submitted the

Final Form placing this accused and two others to face the trial for

commission of offence under sections 302/309, I.P.C.

5. Learned S.D.J.M., Balliguda, having received the Final Form as

above took cognizance of the said offences and after observing the

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

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is how the Trial against this accused and two others commenced by

framing the charge for the above offences as against them.

6. In the Trial, the prosecution in total has examined ten (10)

witnesses. Out of whom, the Informant as already stated is P.W.4. P.W.5

is stated to be an eye witnesses. P.W.7 is a witness to the seizure. The

Doctor, who had conducted the autopsy over the dead body of the

deceased had come to the witness box as P.W.1 whereas the Doctor,

who medically examined the accused is P.W.10. The I.O. is P.W.9.

7. The prosecution, besides tendering the evidence through the

above witnesses, has also proved several documents which are Ext.1 to

14. Out of those, the important are F.I.R. (Ext.7) and the inquest report

is (Ext.8). The Post Mortem Examination Report has been admitted in

evidence and marked Ext.1 whereas the Chemical Examiner's Report is

Ext.14.

8. The defence has tendered no evidence in support of the plea of

denial.

9. Learned counsel for the Appellant (accused) submitted that there

being no direct evidence to connect the accused with the authorship of

the injury upon the deceased resulting her death, the Trial Court has

gone wrong in basing the conviction upon the evidence of the parents of

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the accused and others, who are the post occurrence witnesses. He

further submitted that no such clinching circumstances are emanating

from the evidence of the parents of the accused and other witnesses so

as to say that those are incriminating and being joined together complete

the chain of events in every respect ruling out all the hypothesis other

than the guilt of the accused. He further submitted that with the

available evidence on record, the conviction of the accused for

commission of offence under sections 302/309 of the IPC and the

sentence imposed thereunder are wholly unsustainable.

10. Learned counsel for the State submitted all in favour of the

findings against the accused as has been rendered by the Trial Court.

According to him, when the evidence of the parents of the accused and

other witnesses reveal that in the night accused and the deceased were

together sleeping and it has been said by the prosecution witnesses that

the accused was inside the room where the deceased was lying dead

when injuries on her neck and the accused was also cutting her neck by

holding an axe, no such explanation since has been given by the accused

as regards how it all happened with his wife (deceased) which were

within his special knowledge, the judgment of conviction and order of

sentence passed by the Trial Court are unassailable.

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11. Keeping in view the submissions made, We have carefully read

the judgment passed by the Trial Court. We have also perused the

evidence both oral and documentary let in by the prosecution.

12. As per the evidence of P.W.10, who had first treated the deceased

had noticed that there was one sharp cutting incised wound of the size of

6 c.m. X 0.5 c.m. X 0.5 c.m. on the right side of the neck. The Doctor,

who had conducted the post mortem examination over the dead body of

the deceased (P.W.1) has stated to have noticed one chopped wound of

the size 7 ½ c.m. X 3 c.m. X 6 c.m. extending from the left side of neck

in front of the left side of neck posteriorly. He has further stated that the

body of C-7 vertibra was also cut. He has stated that the cause of death

was because of transsection of left carotide arteri and left internal

jugular vein causing profuse haemorrhage leading to shock and death. It

has also been deposed by him that the said injury was possible by the

axe-M.O.-I, which he had the occasion to examine at the request of the

I.O. (P.W.9). He has further stated that the neck injury, which he noticed

on the dead body, was sufficient to cause the death, which he has

reported in his report (Ext.3). The findings of the P.W.1 as deposed to

have remained unchallenged. So the wife of the deceased having died on

account of the neck injuries, the question now comes as to who is the

author of said injury. The father of the accused has been examined as

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P.W.5. He has stated that having heard the cry of the child of the

accused and when he went to the place of occurrence, he noticed that the

girl was coming out and the accused was standing in the place of

occurrence by holding the axe in his hand. He has further stated that he

had seen the accused implicating cut injuries on the neck of his wife

Rebati by means of axe. He then states that the accused inflicted cut

injuries on his neck by means of that axe, which was snatched from him

and kept in the house. It has assertively been stated during cross-

examination that accused and his wife was sleeping in a separate room

of his house. Thus, his evidence is that when accused and deceased are

sleeping together in the room, hearing the cry he went and saw accused

inflicting the cut injuries on the neck of the deceased and then to have

inflicted cut injuries on his own neck. P.W.4, who is a neighbour of the

accused, has also stated that hearing the cry of the child of the accused

when he went to the house of the accused, he saw the dead body of the

deceased-Rebati with cut injuries on her neck and also saw the accused

to have inflicted injury on his own neck and then he with the younger

brother of the accused apprehended the accused inside the house. In the

absence of any other feature emerging from the evidence of P.W.4 and

P.W.5, their evidence is found to be clear as regards the role of the

accused in inflicting the cut injuries on the neck of the deceased which,

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according to the Doctor (P.W.1) has resulted the death. The injury as per

the evidence of P.W.4 and P.W.5 was caused by means of an axe-M.O-I

which the P.W.1 had examined and opined that with the said axe the cut

injury on the neck of the deceased was possible. With the discussion of

evidence as above, we find all the reasons to affirm the finding of the

Trial Court that the accused inflicted the cut injuries on the neck of the

deceased by mean of axe-M.O.-I which has resulted the death in view of

its severity in causing trans-section of left carotid artery and the left

internal jugular vein causing profuse haemorrhage. Therefore, the

judgment of conviction of the accused for commission of offence under

section 302 of the IPC and the order of sentence to that effect are not

liable to be interfered with.

In so far as the finding of guilt of the accused under section 309 of

the IPC is concerned viewing the evidence of P.W.4 and P.W.5 that the

accused had inflicted cut injuries on his neck by means of an axe

together with the evidence of the Doctor and the nature of injury in the

absence of any other evidence to say that there was an attempt to

commit suicide, we are not in a position to sustain the finding of

conviction and order of sentence imposed upon the accused for the said

offence.

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13. In the result, the Appeal is allowed in part. While maintaining the

conviction of the accused under section 302 of the IPC and the sentence

as had been imposed; the conviction of the accused under section 309 of

the IPC and the sentence imposed thereunder stand set aside.

(D. Dash), Judge.

                    Mr. G. Satapathy, J     I agree.



                                                                  (G. Satapathy),
                                                                       Judge.




          Himansu




Signature Not Verified
Digitally Signed
Signed by: HIMANSU SEKHAR DASH
Reason: Authentication
Location: OHC
Date: 14-Nov-2023 15:39:28

                    JCRLA No.15 of 2016