Gopla Majhi vs State Of Orissa
2023 Latest Caselaw 11931 Ori

                               IN THE HIGH COURT OF ORISSA AT CUTTACK

                                                 JCRLA NO.88 OF 2017

                      From the judgment and order dated 22nd August, 2017 passed by Shri
                      B.K.Pattnayak, Sessions Judge, Kalahandi, Bhawanipatna in C.T. No.64
                      of 2012(Sessions).

                      Gopla Majhi                                ......                   Appellant

                                                                 Versus

                      State of Orissa                            .......                  Respondent


                      Advocate(s) appeared in this case:-

                       For Appellant        :       Mr.P.Ramakrishna Patro, Advocate

                       For Respondent       :       Mr.D.K.Mishra, A.G.A.



                                    CORAM : JUSTICE B.P. ROUTRAY
                                            JUSTICE CHITTARANJAN DASH

                                                      JUDGMENT

th 4 October, 2023

B.P. Routray, J.

1. The Appellant is convicted for commission of murder of his wife

and three daughters by dealing tangia blow while they were sleeping in

the night and then set the house on fire. He is sentenced to life

imprisonment.

Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN 2. BISWALThe prosecution story, sans unnecessary details, is as follows: Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Oct-2023 12:13:26

The Appellant Gopla Majhi is a resident of village Deheda under

Biswanathpur Police Station in the district of Kalahandi. He often

misbehaved village women after being alcoholic for which there was

discontentment between the husband and wife. The wife namely, Tila

Majhi always objected such conduct of the Appellant. This made the

Appellant angry and dissatisfied with his wife. On the occurrence night,

i.e. in the night of 21/22.3.2012, when the wife and three daughters had

fallen asleep inside the house, the Appellant dealt Tangia (axe) blows on

them to kill and then set the house on fire. After committing murder he

left the house in the night. The neighbours woke up. The informant,

Jamu Majhi (since dead), saw the fire in flames in the house of the

Appellant. He called others, who all came, and extinguished the fire by

water and found four dead bodies lying on the floor inside the house. In

the early morning, the Appellant returned to village. While returning to

the village, he frightened the villagers, seeing them, to assault by means

of Tangia. However, the Gramarakhi was called and caught hold him.

3. The FIR was lodged by Jamu Majhi, who died afterward before

deposing in the court. P.W.10, the IIC-In-charge of Biswanathpur Police

Station registered the FIR and took up investigation. He held inquest

Signature Not Verified over the dead bodies, sent them for postmortem examination, arrested Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication the accused, seized the weapon of offence and took up all other Location: Orissa High Court, Cuttack Date: 05-Oct-2023 12:13:26

formalities of investigation. The investigation was subsequently taken

up by P.W.13, the Inspector-In-charge, who submitted the charge-sheet

on 16.7.2012 against the accused for commission of offence under

Sections 302/201 of the IPC. The Appellant pleaded innocence and not

guilty. He also took the plea of alibi during his examination under

Section 313 Cr.P.C. as well as in his evidence.

4. The prosecution examined thirteen witnesses. Amongst them,

P.W.10 & 12 are the Investigating Officers. P.W.11 is the scribe of FIR

and P.W.9 is the Postmortem Examination Doctor. P.W.1 & 3 are the

cousins of the Appellant and his neighbours. As stated earlier, the

informant could not be examined due to his death. P.W.2 & 4 to 7 are

the fellow villagers of the Appellant and they all are post-occurrence

witnesses. The FIR is marked as Ext.5 and the inquest reports have been

marked from Ext.1 to 4. The postmortem examination reports are

marked under Ext.11 to 14 and the chemical examination report is under

Ext.25. The spot map is Ext.18. All these exhibits have been marked on

behalf of the prosecution.

5. The Appellant examined himself as Defence Witness No.1. He

did not produce any documentary evidence.

Signature Not Verified

6. There is no eyewitness to the occurrence. No one has seen the Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Appellant committing the assault. Though P.W.1 has stated to have seen Location: Orissa High Court, Cuttack Date: 05-Oct-2023 12:13:26

the Appellant while committing the assault, but his evidence to this

extent is not found trustworthy. It is for the reason that he did not speak

about the same before police and for the first time he deposed about

same in the court. He has admitted in his cross-examination that for the

first time he is stating all such facts about eye-witnessing the assault by

the Appellant on his wife and children. It is the prosecution case that the

informant saw the house on fire in the night for the first time. So, had

P.W.1 been witnessed it, the same could have been mentioned by the

informant in the F.I.R. But the FIR does not speak so. Further, had

P.W.1 been the eyewitness of the assault, his conduct would have been

different than to remain silent till other people reached at the spot to

extinguish the fire. It is thus appearing that P.W.1 is trying to develop

his statement and therefore, his deposition to such extent is found

untrustworthy.

7. The case appears based on circumstantial evidence in absence of

any direct eyewitness to the occurrence. Learned trial court has also

dealt with the case as such and accordingly relied on the circumstance of

extra judicial confession to convict the Appellant. According to learned

trial court, the confession of the Appellant made before the villagers in

Signature Not Verified the morning about commission of murders of his wife and children is Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Oct-2023 12:13:26

acceptable as creditworthy to sustain the conviction. But here we find

one error committed by the trial court. The same is discussed below.

8. As per the witnesses Viz. 1 to 7, the Appellant confessed about

commission of murder by him in the morning in presence of the

villagers. P.W.1 to 7 have all stated in same line that on being asked, the

accused told to have killed his wife and children and set the house on

fire. But the fact remains that when the Appellant came to his village in

the morning, he could not be controlled by the villagers and only when

the Gramarakhi came there, he could able to caught hold him. This is

also corroborated as per the versions stated in the FIR along with the

fact that Gramarakshi guarded the spot. So, the inference arises that,

whatever was stated by the Appellant before the villagers, the same was

stated in presence of the Gramarakhi. Gramarakhi is undisputedly a

police personnel and this has been settled in various decisions.

Therefore, all such statements made by the Appellant before the

villagers in presence of the Gramarakhi are definitely hit by Section 24

of the Indian Evidence Act. It is because that, no statement made in

presence of the police would be admissible in evidence. This part has

been completely overlooked by learned trial court. Therefore in the

Signature Not Verified opinion of this Court, such extra judicial confession made by the Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Oct-2023 12:13:26

Appellant before the villagers is inadmissible in evidence and thus

cannot be used against the Appellant.

9. The other circumstance narrated by the prosecution is regarding

disclosure statement of the Appellant leading to discovery of weapon of

offence, i.e. the Tangia (M.O.I). As per the evidence of P.W.10, the I.O.

and P.W.5, the Appellant while in police custody being inclined to give

discovery of M.O.I had led the police team and witnesses to his house

and brought out the axe. There is a catch here also. The fact remains that

the Appellant, as per the version of P.W.1 to 7, returned to village

carrying the Tangia and one thenga and he threatened the villagers to

kill. Further, the prosecution case is that, since the Appellant could not

be captured by the villagers, the Gramarakhi was called and he caught

hold of the Appellant. So if the Appellant could be caught hold by the

Gramarakhi only in the morning, then it is obvious that he would have

got the Tangia (M.O.I) also. If the Tangia was brought from the

Appellant at the time he carried it in the morning itself, then the question

of its concealment and recovery at a subsequent point of time does not

arise at all. Therefore all such stories narrated by the prosecution

regarding leading to discovery of the weapon of offence are all created

Signature Not Verified one incorporated subsequently to suit prosecution case. Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Oct-2023 12:13:26

10. The important aspect to be emphasized here is the nature of death

of all the deceased persons. They are no other than the wife and three

minor daughters of the Appellant. The most tragic part is that youngest

daughter was only two months old and all the deceased persons received

chop wounds around their neck. The daughters received one chop

wound each on their neck and the wife (Tila Majhi) received four chop

wounds around her neck. The time of death of all the deceased persons

corresponds the time around 3 or 4 AM in the night of the occurrence as

per the opinion recorded by P.W.9. It is to be reminded here that the

cause of death is not by burn or fire injury but by chop wounds

consistent to the weapon of offence as the Tangia.

11. M.O.I is the weapon and identified by the witnesses in court. Said

M.O.I was examined by P.W.9 who opined that all such chop wounds

found on the dead body can be possible by M.O.I. Therefore, the nature

of death is established to be homicidal and the injuries are consistent to

M.O.I. These circumstances are unquestionable.

12. The next question comes, who could be the assailant ?

The deceased persons are admittedly the wife and children of the

Appellant. This is admitted by the Appellant. It further remains

Signature Not Verified undisputed that the dead bodies were found lying on the floor inside the Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication house of the Appellant. The house was set on fire before it was doused Location: Orissa High Court, Cuttack Date: 05-Oct-2023 12:13:26

by the witnesses. Here is a circumstance appearing against the

Appellant. The Appellant being the admitted husband and father of the

deceased persons, a reasonable explanation about the death of deceased

persons is expected from the Appellant. The Appellant had taken the

plea that one day before the occurrence he left the village and had been

to village Sergilepa. The Appellant states that he did not know anything

regarding the occurrence and he feigned to be ignorant of the deaths till

his return in the morning. It is well settled that, in the plea of alibi the

burden is on the accused to prove the same. The Appellant as D.W.1

said in his cross-examination that he had gone to the house of one Gudi

Majhi, his native in village Sergilepa. But no attempt has been made by

the Appellant to examine either Gudi Majhi or any other person to

support his version. It is true that some of the prosecution witnesses

have told that the Appellant was not seen in the village during day time

on the occurrence date. But none have stated to have seen the Appellant

at village Sargilepa. At the same time, it is also found that nobody has

stated about his absence from the house during the evening hours or that

relevant night. It is obvious and natural on the part of the Appellant to

return the house in night instead of staying in the neighbouring village

Signature Not Verified Sergilepa which is only 2.5 kilometers away. It is not that the Appellant Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication accuses any other person or any other reason for murder of his wife and Location: Orissa High Court, Cuttack Date: 05-Oct-2023 12:13:26

children. He simply speaks his ignorance. It is of course common on the

part of an offender to commit the offence behind the eyes of others.

Here it is important to see the conduct of the Appellant after he was seen

by the villagers in the morning. It is the consistent evidence of all such

witnesses that the Appellant behaved in a angry manner upon seeing the

villagers and frightened them with Tangia. He could not be controlled

by the villagers until the Gramarakhi captured him. Such post

occurrence conduct of the accused after commission of offence is

relevant under Section 8 of the Indian Evidence Act. Had the Appellant

been that innocent his behavior would have been different after knowing

murder of his wife and children. It is not the case of death of wife or one

child alone, but it is a case of murder of wife and three daughters at the

same time. Therefore the story of innocence as narrated by the Appellant

is hard to believe.

13. In a case of murder the best witness, i.e. the deceased, is made

silent by the assailant. The murderer wipes out the best evidence against

him. In the instant case, it is not a murder simplicitor of one person or

two persons, but it is a case of four persons including one female child

aged about two months. It is brutal and barbaric. The circumstance that

Signature Not Verified the murder was committed in the house of the Appellant and he Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication attempted to burn the entire house along with the dead bodies in dead of Location: Orissa High Court, Cuttack Date: 05-Oct-2023 12:13:26

the night are pointing finger to the Appellant alone and the same is

further strengthened by his subsequent conduct relevant under the

principles of res gestae, which also points towards the guilt of the

Appellant alone excluding all hypothesis of his innocence. Therefore

taking all such circumstances in entirety including the cause of death, it

is concluded that the prosecution has established the charges against the

Appellant. The Appellant is thus found guilty of the charges as

concluded by learned trial court.

14. Accordingly, the conviction and sentence of the Appellant is

confirmed and the appeal is dismissed.

(B.P. Routray) Judge

(Chittaranjan Dash) Judge //C.R.Biswal, Secy.//

Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Oct-2023 12:13:26