Orissa High Court
This Is An Appeal Under Section 383 ... vs State Of Odisha on 9 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.41 of 2015
This is an Appeal under Section 383 of the Code of Criminal
Procedure, 1973, which has been preferred by the Appellant against the
judgment of conviction and order of sentence passed on dated
02.04.2015 in C.T.(SS) Case No.133 of 2010 by the learned Additional
Sessions Judge, Dhenkanal and was sentenced to undergo R.I. for life
and pay a fine of Rs.10,000/- in default to undergo R.I. for one year.
Sanjaya Das @ Malaya Das .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.J.K.Panda,
Advocate.
For Respondent - Mr.P.K.Mohanty,
Additional Standing Counsel.
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE A.C.BEHERA
Date of Hearing :25.09.2023 :: Date of Judgment : 09.10.2023
A.C. Behera, J. The Appellant from inside the jail has assailed the
judgment of conviction and order of sentence dated 02.04.2015 passed
by the learned Additional Sessions Judge, Dhenkanal in C.T. (SS) Case
No.133 of 2010 arising out of G.R. Case No.62 of 2010 in connection
with Balimi P.S. Case No.19 of 2010.
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The Appellant has been convicted for commission of offences U/s
392 and 302 of the Indian Penal Code, 1860 (in short I.P.C.) and
accordingly, he has been sentenced to undergo rigorous imprisonment
for ten years and to pay fine of Rs.5000/- (rupees five thousand) in
default to undergo R.I. for one year for the offence U/s 392 of the IPC
and imprisonment for life and to pay a fine of Rs.10,000/- (rupees ten
thousand) in default to undergo R.I. for one year for the offence U/s 302
of the IPC with a direction for running of both the sentences
concurrently.
2. Prosecution case:-
On 20.04.2010 in between 7:30 to 8:30 a.m., while Priyambada
Behera (deceased) alone was present in their rented house at Khajurikata
medical chhak under the jurisdiction of Balimi police station in the
District of Dhenkanal, she was killed by unknown culprit with stealing
of gold ornament, mobile handset and cash of Rs.10,000/- from their
house. While one young unknown culprit was escaping from her house
after the incident, he was seen by son of the deceased, namely, Subham
Behera. When son of the deceased found that, his mother is lying dead
in their house with bleeding injuries, then he informed the said matter to
his father and accordingly, his father came to the house and found that,
his wife is lying dead in their house with injuries around her neck and on
her head.
Then, the husband of the deceased lodged F.I.R. (Ext.1) before
the OIC Balimi police station on that day at 9:00 p.m. Basing upon such
F.I.R., the OIC Balimi Police Station registered Balimi P.S. Case No.19
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dated 20.04.2010 U/s 302 & 380/34 of the IPC and he (OIC Balaram
Sagar) himself took up the investigation of the case.
3. During investigation, he (I.O.) examined the informant, visited the
spot, prepared the spot map (Ext.29), held inquest over the dead body of
the deceased, prepared the inquest report (Ext.2), dispatched the dead
body of the deceased through dead body challan for postmortem
examination and accordingly, postmortem examination over the dead
body of the deceased was conducted and postmortem report (Ext.14)
was prepared, seized the wearing apparels of the deceased vide M.Os.V,
VI, VII & VIII along with other incriminating materials, examined other
witnesses, arrested the accused, seized his wearing apparels through
seizure list (Ext.10), seized one cemented concrete stone vide M.O. IX
through seizure list vide Ext.22 and forwarded the accused to Court. He
(I.O.) made a query from the doctor and received the query report
(Ext.15), prayed for T.I. parade of the accused and accordingly, T.I.
parade was conducted by the learned Sub-Divisional Judicial
Magistrate, Hindol and the T.I. Parade report (Ext.5) was prepared and
sent the seized articles for chemical examination and report. Then after
completion of the investigation, he (I.O.) submitted Final Form placing
the accused for trial U/s 302 & 380 of the IPC and his co-accused
Santosh Pattanaik U/s 411 of the IPC.
4. Learned Sub-Divisional Judicial Magistrate, Hindol 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 Judge, Dhenkanal for trial and after transfer of that case to the
Court of learned Additional Sessions Judge, Dhenkanal i.e. how, the
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trial commenced in the Court of learned Additional Sessions Judge,
Dhenkanal by framing charges for the offences U/s 392 & 302 of the
IPC, 1860 against the accused (appellant) and for the offence U/s 411 of
the IPC against his co-accused Santosh Pattnaik.
The plea of the defence was one of complete denial and false
implication of the accused.
5. In order to substantiate the aforesaid charges against the accused
persons, altogether 23 number of witnesses were examined on behalf of
the prosecution as P.Ws.1 to 23 and series of documents vide Exts.1 to
23 including the F.I.R., inquest report, Postmortem report, T.I. parade
report and chemical examination report were marked as Exts.-1, 2, 14, 5
and 33 on behalf of the prosecution. But, whereas four witnesses were
examined on behalf of the defence as D.Ws.1 to 4.
6. Out of 23 witnesses of the prosecution, P.W.15 is the informant-
cum-husband of the deceased. P.Ws.-13 & 14 are the son and daughter
of the deceased. P.Ws. 16 and 17 are the witnesses to the seizure of the
articles. P.Ws.-1, 2, 3, 4, 5, 6 & 7 are the post occurrence witnesses.
P.W.1 is the scribe of the F.I.R., P.W.8 is the learned SDJM, Hindol,
who has conducted T.I. Parade and has prepared the reports of T.I.
Parade vide Ext.5, P.Ws.-9, 10, 20 & 21 are the witnesses to the seizure
lists, P.Ws.-18 and 19 are two post occurrence witnesses like P.Ws.1, 2,
3, 4, 5, 6 & 7, P.Ws.23 and 12 are the I.Os. of the case.
7. Upon examination of the evidence available on record, the Trial
Court placing reliance upon the evidence of the P.W.13 (son of the
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deceased), informant (P.W.15), Magistrate (P.W. 8, who had conducted
T.I. Parade), and the I.O. (P.W.23) along with the documents i.e.
postmortem and query reports (Exts.14 & 15), report of T.I. parade
(Ext.5) and chemical report vide Ext.33 disbelieving the plea of the
defence found the accused guilty for the offences U/s 392 & 302 of the
IPC, 1860 and sentenced him as aforestated.
8. Learned counsel for the Appellant (accused) inviting our attention
to the depositions of P.Ws.13, 15, 8 and 23 submitted that, their
evidence is not sufficient to connect the accused with the injuries and
death of the deceased. In support of the above contention, he (learned
counsel for the accused) relied upon the decision in the case of Md.
Ayub Khan Vrs. State of Orissa reported in 2015 (I) OLR 476.
9. On the contrary, the learned Additional Standing Counsel argued
in support of the impugned judgment of conviction and order of
sentence contending that, the evidence of P.Ws.13, 15, 8, 11 and 23
corroborated through the documents vide Exts.14, 15, 5 and 33 are
sufficient to connect the accused with the injuries and death of the
deceased. For which, the conviction and order of sentence passed by the
Trial Court for the offences U/s 392 & 302 of the IPC against him
(accused) cannot be unsustainable under law.
10. The case of the prosecution regarding the homicidal nature of
death of the deceased is not under dispute by the defence. Because, only
the nexus of the accused with the death of the deceased has been
disputed on behalf of the defence during trial. The findings in the
postmortem report (Ext.14) corroborated by the doctor (D.W.3) is
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establishing that, the death of the deceased was due to strangulation,
which is homicidal in nature.
11. The evidence of the son of the deceased i.e. Subham Behera
(P.W.13) corroborated through the evidence of the Magistrate (P.W.8,
who had conducted T.I. parade) and the contents of the report of the T.I.
parade (Ext.5) is going to show that, while the accused was escaping
from the spot house after the incident, he (accused) was seen by him
(P.W.13).
It appears from the evidence of P.Ws.10, 16, 17 and I.O.(P.W.23)
along with documents vide Exts.10, 22, 30 and 33 that, human blood
was found on the seized wearing apparels of the deceased, T-shirt of the
accused and on the concrete stone, (M.O.IX), the same is ultimately
connecting the accused with the death of the deceased.
12. Keeping in view of the above evidence of P.Ws.10, 13, 16 and 17
corroborated through the evidence of Magistrate (P.W.8) and the I.O.
(P.W.23) coupled with the documents vide Ext.14 (postmortem report),
Ext.5 (Report of T.I. parade) and the seizure lists vide Exts.10, 22, 30
and 33, we are of the considered view that, none else, but the accused
has caused the death of the deceased inside her house through
strangulation. So, the decision relied upon on behalf of the Appellant
indicated above in paragraph-8 of this judgment is not applicable to this
case on facts.
13. On the conceptious of analysis of the evidence hereinabove, we
thus find that, prosecution has proved its case against the
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Appellant/accused beyond reasonable doubt for having committed the
murder of the deceased (Priyambada Behera) and as such the judgment
of conviction and order of sentence passed by the Trial Court are not
liable to be interfered with.
In the result, the Appeal is dismissed. The judgment of conviction
and order of sentence dated 02.04.2015 passed by the learned Additional
Sessions Judge, Dhenkanal in C.T. (SS) Case No.133 of 2010 against
the Appellant (accused) are hereby confirmed.
(A.C. Behera),
Judge.
D. Dash, J. I Agree.
(D. Dash),
Judge.
Orissa High Court, Cuttack.
09th October, 2023//Utkalika Nayak//
Junior Stenographer
Signature Not Verified
Digitally Signed
Signed by: UTKALIKA NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 13-Oct-2023 15:51:02
JCRLA No.41 of 2015
