Sudarshan Ojha vs State Of Odisha
2023 Latest Caselaw 12163 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLA No.72 of 2014
          In the matter of an Appeal under Section 374 (2) of the Code
    of Criminal Procedure, 1973 and from the judgment of conviction
    and order of sentence dated 27th December, 2013 passed by the
    learned Sessions Judge, Jajpur, in C.T. No.202 of 2013 (35/2013).
                                     ----

        Sudarshan Ojha                      ....         Appellant

                                 -versus-

        State of Odisha                     ....        Respondent

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

                For Appellant    -      Mr.Ramanikanta Pattnaik and
                                        Mr.B.C. Parija

                For Respondent -        Mr.G.N. Rout,
                                        Additional Standing Counsel
   CORAM:
   MR. JUSTICE D.DASH
   MR. JUSTICE A.C.BEHERA
   Date of Hearing : 03.10.2023      : Date of Judgment:09.10.2023

D.Dash,J. The Appellant, by filing this Appeal, has called in question

the judgment of conviction and order of sentence dated 27th

December, 2013 passed by the learned Sessions Judge, Jajpur, in

C.T. No.202 of 2013 (35/2013) arising out of G.R. Case No.74 of

2013 corresponding to Dharmasala P.S. Case No.24 of 2013 in the

Court of the learned Judicial Magistrate First Class (J.M.F.C.),

Chandikhole.

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The Appellant (accused) thereunder has been convicted for

committing the offence under section 302/34 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.10,000/- (Rupees Ten Thousand) in default to undergo

rigorous imprisonment for two (2) years each.

2. PROSECUTION CASE:-

On 29.01.2012 around 4.00 p.m, one Sk. Mecca of Village-

Barabati submitted a written report with the Inspector-in-Charge

(IIC) of Dharmasala Police Station (P.S.) informing that at

Kuakhia market, he heard that the accused had killed his

daughter. So, he went to the house of the accused at Village-

Odanga and saw the dead body of Sanjukta lying in a pool of

blood on the verandah of the house with deep cut on her chest. It

was then ascertained from the witnesses present including the

wife of the accused and the mother of the deceased that the

accused, having got annoyed with Sanjukta because she delayed

in serving the curry, having dealt a blow with one Barisi, had

caused the death of Sanjukta.

The written report, being received by the Inspector-in-

Charge (IIC), Dharmasala P.S., the same was treated as FIR

(Ext.6/1) and upon registration of the case, he directed the Sub-

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Inspector (S.I.) of Police attached to that Police Station to take up

the investigation.

The Investigating Officer (I.O.-P.W.14), in course of the

investigation, examined the informant (P.W.13). The I.O.

(P.W.14), having visited the spot, prepared the spot map (Ext.7).

He too held inquest over the dead body in presence of the

witnesses and prepared the report (Ext.5). He sent the dead body

of Sanjukta for post mortem examination by issuing necessary

requisition. Few more witnesses were examined and

incriminating articles were also seized. It was stated that the

accused while in police custody, pursuant to his statement, gave

the recovery of Barisi. The statement of the accused was that he

had kept the Barisi in a place known to him and if he would be

led to the place, he would give recovery of the same, had been

recorded by the I.O. (P.W.14) under Ext.1. Pursuant to the

statement, accused Sudarshan is said to have led the police and

other witnesses in giving recovery of that weapon. The seized

incriminating articles were sent for chemical examination

through Court. On completion of investigation, the I.O. (P.W.14)

submitted the Final Form placing this accused to face the Trial for

commission of the offence under section 302 of the IPC.

3. Learned J.M.F.C., Chandikhole, on receipt of the Final

Form, took cognizance of the said offence and after observing the

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

That is how the Trial commenced by framing the charge for the

aforesaid offences against the accused.

4. The prosecution, in support of its case, has examined in

total sixteen (16) witnesses during Trial. Out of them, as already

stated P.W.13 is the informant. P.Ws.1, 4, 5 & 6 are the witnesses

to the confession and leading to discovery of weapon whereas

P.Ws.6 & 8 are the witnesses to the inquest. P.Ws.3, 9, 11 & 12 are

the witnesses, who had heard about the incident. The Doctor,

who had conducted the post mortem examination over the dead

body of the deceased, has come to the witness box as P.W.15 and

the Doctor, who had medically examined the accused is P.W.16.

The I.O. has been examined as P.W.14.

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 11.

Out of those, the important are, the FIR (Ext.6/1), the inquest

report (Ext.5), the post mortem report (Ext.10). The statement of

accused Sudarshan, while in police custody, has been admitted in

evidence and marked Ext.1.

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6. The accused has taken the plea of complete denial and false

implication. He, however, has not tendered any evidence in

support of their defence.

7. The Trial Court, having gone through the evidence of the

Doctor (P.W.15), who had conducted the autopsy over the dead

body of the deceased and had found one cut injury on the left

side at the base of the neck on supra sternal region of size 3" X 1"

extending obliquely to left Atrio Ventricular Junction of heart and

his report to that effect (Ext.10) as also the evidence of other

witnesses, has arrived at a conclusion that the death of Sanjukta

was homicidal in nature.

In course of investigation, a query being made by the I.O.

(P.W.14) as to if the injuries noticed by him on the dead body of

the deceased are possible by Barisi, his (P.W.15) answer is in the

affirmative as has been reflected in his report Ext.10. In addition

to that, we find the evidence of P.W.14, who is the I.O, who had

held inquest over the dead body of the deceased and prepared

Ext.5, which finds mention that the deceased had sustained such

injuries on her person. With such evidence on record, we are of

the view that the deceased had met a homicidal death.

8. Mr. B.C. Parija, learned counsel for the Appellant (accused)

submitted that the evidence on which the Trial Court has relied

upon in holding the accused to be guilty are not at all admissible.

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Elaborating the same, having invited over attention to the

deposition of P.Ws.1, 4, 5 & 6, he submitted that when all of them

have stated that the accused confessed to have committed the

crime before them, it was in presence of the police personnels

and, therefore, the Trial court ought not to have relied upon the

same as such confession is not admissible in the eye of law, being

clearly hit under section 25 of the Evidence Act. He further

submitted that the evidence let in by the prosecution as to the

recovery of that Barisi at the instance of the accused from the

place where he had kept the same pursuant to his statement

while in police custody ought not have been believed. He,

therefore, submitted that the judgment of conviction and order of

sentence impugned in this Appeal are vulnerable.

9. Mr.G.N.Rout, learned Additional Standing Counsel for the

Respondent-State, submitted all in favour of the guilt against the

accused, as has been returned by the Trial Court. According to

him, the evidence of P.Ws.1, 4, 5 & 6 as to the confession of the

coupled with the evidence of recovery of the weapon, i.e, Barisi at

the instance of the accused, which as per the opinion of the

Doctor (P.W.16) can cause such injuries found on the person of

the deceased are enough to base the conviction in concluding that

the accused had intentionally caused the death of his daughter

Sanjukta.

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10. Keeping in view the submissions made, we have carefully

gone through the impugned judgment of conviction. We have

also travelled through the depositions of the witnesses examined

from the side of the prosecution (P.Ws.1 to 16) and have perused

the documents admitted in evidence marked as Exts.1 to 11.

11. The informant (P.W.13), in his FIR (Ext.6/1), has stated that

from the wife of the accused and others, he learnt that it was the

accused, who had caused the fatal injury upon the deceased, who

happens to be his daughter. The wife of the accused has been

examined as P.W.7. She has not supported the prosecution case in

any manner and has rather gone to state that she as well as the

accused had gone out to work and on return, saw their daughter

lying dead. She does not state to have told anything about the

complicity of this accused to the informant (P.W.13). The

informant (P.W.13) has also not supported the prosecution case. It

is his evidence that he had signed on the paper in the P.S. and

had neither indicated in the FIR (Ext.6/1) nor stated before the

police that he was told anything about the incident by P.W.7.

P.W.1 when states that the accused have confessed before

them to have killed his daughter by means of Barisi (sharp

cutting weapon). He has, however, clearly stated that police was

then present at the spot and talking with the accused. The

evidence of P.W.5 is also to the effect that he went to the spot and

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found police there and the accused was also very much present

and thereafter the accused confessed his guilt. That it has been

the evidence of P.W.5 that when police came and asked the

accused, he confessed to have killed his daughter by Barisi. The

evidence of all these witnesses being on the score that het accused

confessed to have committed the crime when police officer was

very much present and one even says that police officer was

talking with the accused, their evidence, in our view being not

admissible in the eye of law as hit under section 25 of the

Evidence Act, are of no aid to the case of the prosecution.

12. The rest evidence concern with the recovery of Barisi, which

is said to have been at the instance of the accused while in police

custody. We find the evidence of P.W.1 to be simply on the score

that the accused led the police near a bush and brought out a

Barisi, which was seized. He does not say that the accused made

any statement first that he had kept the Barisi in a particular place

and if he would be taken to that place, he would give recovery of

the same. It is also not stated by P.W.1 that police had recorded

the statement of the accused. The evidence of P.W.4 is not

running in the direction that the accused led the police near the

bush and brought out the Barisi, which was seized. He has stated

that police seized the Barisi on production by the accused by

bringing it out from near the bush. The evidence of P.W.5 is also

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that vague. We find that the prosecution evidence as to the

recovery of that Barisi at the instance of the accused while in

police custody from the place, which was known to him do not

pass through the legal tests so as to be admissible under section

27 of the Evidence Act to come to the aid of the prosecution as to

that extent.

13. On the conspectus of the analysis of the evidence let in by

prosecution, we are of the view that the finding of the Trial Court

that the prosecution has established the charge against accused,

Sudarshan Ojha beyond reasonable doubt by leading clear,

cogent and acceptable evidence cannot be sustained.

14. In the result, the Appeal is allowed. The judgment of

conviction and order of sentence dated 27th December, 2013

passed by the learned Sessions Judge, Jajpur, in C.T. No.202 of

2013 (35/2013) are hereby set aside.

Since the accused, namely, Sudarshan Ojha, is on bail, his

bail bonds shall stand discharged.

(D. Dash), Judge.

A.C. Behera, J. I Agree.

(A.C.Behera), Signature Not Verified Digitally Signed Judge.

Basu Signed by: BASUDEV NAYAK Reason: Authentication Location: ORISSA HIGH COURT Date: 11-Oct-2023 17:19:08

CRLA No.72 of 2014