Orissa High Court
From The Judgment Of Conviction And The ... vs State Of Odisha on 8 January, 2024
Bench: D.Dash, G.Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.22 of 2011 : (A)
AND
CRLA No.63 of 2011 : (B)
From the judgment of conviction and the order of sentence
dated 30th November, 2011 passed by the learned Additional
Sessions Judge, Nabarangpur camp at Umerkote in C.T. No.42 of
2010.
----
Janakaya Gond .... Appellant
(In both the Appeals)
-versus-
State of Odisha .... Respondent
(In both the Appeals)
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.B. Nayak, Advocate
(In JCRLA No.22 of 2011)
Mr. N. Panda, Advocate
(In CRLA No.63 of 2011)
For Respondent - Mr.S.K. Nayak,
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G.SATAPATHY
Date of Hearing : 20.12.2023 : Date of Judgment :08.01.2024
D.Dash,J. The Appeal as at (A) had been filed by the Appellant from
inside the jail and subsequently, the Appeal as at (B) has been
JCRLA No.22/2011 & CRLA No.63/2011
filed by the Appellant through his private counsel. Therefore,
both the Appeals have been tagged for hearing and disposal by
this judgment.
The Appellant, by filing these Appeals, has called in
question the judgment of conviction and the order of sentence
dated 30th November, 2010 passed by the learned Additional
Sessions Judge, Nabarangpur camp at Umerkote in C.T. No.42 of
2010 arising out of G.R. Case No.580 of 2009 corresponding to
Umerkote P.S. Case No.156 of 2009 of the Court of the learned
Judicial Magistrate First Class (J.M.F.C.),Umerkote.
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 09.11.2009, one Kartika Ganda (Informant-P.W.2),
arriving at his house, when inquired the whereabouts of the
missing child, the accused confessed before him to have thrown
their daughter-Sushila into the well. On 29.11.2009 around 9.30
p.m., he lodged a written report having come to know about the
happenings in the incident from none other than his wife.
JCRLA No.22/2011 & CRLA No.63/2011
On receiving the written report from the Informant (P.W.2),
the Inspector-in-Charge (IIC) of Umerkote Police Station (P.W.7)
immediately registered P.S. Case No.156 of 2009 and took up
investigation.
3. In course of investigation, the Investigating Officer (P.W.7)
examined the Informant (P.W.2) and other witnesses and
recorded their statements under section 161 of the Cr.P.C. He,
having visited the spot, prepared the spot map. He (P.W.7) held
inquest over the dead body of the deceased and prepared the
report to that effect (Ext.4) in presence of the witnesses. The I.O.
then sent the dead body for post mortem examination by issuing
necessary requisition. He then seized the wearing apparels of the
deceased under seizure list (Ext.5). The accused, being
apprehended, was forwarded in custody to Court. On completion
of the investigation, the Investigating Officer (P.W.7), submitted
the final form placing the accused for the trial for commission of
offence under section 302 IPC.
4. Learned J.M.F.C. Umerkote, on receipt of the above report,
having taken cognizance of the offence, after observing all the
formalities, committed the case to the Court of Sessions for Trial.
That is how the trial commenced against this accused by framing
the charge for the above offence.
JCRLA No.22/2011 & CRLA No.63/2011
5. The prosecution, in support of its case, has examined in
total seven (7) witnesses during Trial. As already stated, the
informant, who happens to be father of the deceased, is P.W.2
whereas P.W.5 is the father of the Informant. P.Ws.3 & 4 are the
independent eye witnesses to the occurrence. P.W.6 is the
Sarpanch. The Doctor, who had conducted the autopsy over the
dead body of the deceased, has been examined as P.W.1. The I.O.
of the case, at the end, has come to the witness box as P.W.7.
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 5.
Out of those; important are the FIR (Ext.3); inquest report (Ext.4);
the post mortem report (Ext.1) and the seizure list (Ext.5).
6. The accused, having taken the plea of complete denial and
false implication has, however, not tendered any evidence in
support of the same.
7. Learned counsel for the Appellant (accused) submitted that
although absolutely no evidence surfaces on record to connect the
accused with the said crime, the Trial Court has found the
accused guilty for committing the offence of murder of her
daughter, namely, Susila. He submitted that there is no direct
evidence to connect the accused with the crime and when the
entire case of the prosecution is based on the extra-judicial
JCRLA No.22/2011 & CRLA No.63/2011
confession said to have been made by the accused before her
husband (P.W.2), said P.W.2 during trial not stated anything
about the said confession made before him by the accused. He,
therefore, submitted that there being no other circumstantial
evidence except to say that the deceased was the daughter of the
accused and they were residing under one roof even though the
recovery of the dead body has been made from the well, the chain
of events cannot be said to be complete in every respect ruling
out all such hypothesis other than the guilt of the accused.
8. Mr.S.K.Nayak, learned Additional Government Advocate
for the Respondent-State, while supporting the finding of guilt of
the accused, as has been returned by the Trial Court, submitted
that the evidence of all the above prosecution witnesses are
wholly consistent and there is no variance on the material part as
to the incident. According to him, the accused having not
explained as to how her daughter died; the conviction has to
sustain.
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.7) and have perused the documents admitted in
evidence and marked as Ext.1 to Ext.5.
JCRLA No.22/2011 & CRLA No.63/2011
10. It is not in dispute that the case of the prosecution is not
based on direct evidence. The star witness of the prosecution is
P.W.2 who is none other than the husband of the accused and he
is the Informant who had lodged the F.I.R.
Perusal of his deposition of P.W.2 reveals that during trial,
he (P.W.2) has not supported the version in the F.I.R. (Ext.3) and
he has simply stated to have detected her two daughters to be
floating in the water. He is absolutely silent as to have ever talked
with the accused at any point of time after arrival at home from
work place. Although the witness has been cross-examined by the
prosecution, with the permission of the court, we find no such
incriminating materials to have been elicited from his lips to
point out finger of guilt at the accused.
P.W.3 is the father of P.W.2. He has also not stated anything
implicating the accused and that is also the version of the other
witnesses examined from the side of the prosecution. P.W.4 who
had been to the house of the accused also does not implicate the
accused in any manner. None have even stated about the conduct
of the accused during then. P.W.5, the mother-in-law of the
accused, who according to P.W.2 was present when he arrived at
home; she has not breathed a word as against this accused. With
such evidence on record, even though we have no such material
to differ with the conclusion of the Trial Court that the daughters
of the accused and P.W.2 has met homidical death, we, however,
JCRLA No.22/2011 & CRLA No.63/2011
are not inclined to affirm the finding of the Trial Court that the
prosecution has established the charge against the accused by
leading, clear, cogent and acceptable evidence beyond reasonable
doubt.
11. In the result, the Appeals stand allowed. The judgment of
conviction and the order of sentence dated 30th November, 2011
passed by the learned Additional Sessions Judge, Nabarangpur
camp at Umerkote in C.T. No.42 of 2010, are hereby set aside.
Since the accused, namely, Janakaya Gond is in custody,
she be set at liberty forthwith, if her detention is not wanted in
any other case.
(D. Dash)
Judge
G.Satapathy, J. I Agree.
(G.Satapathy)
Judge
Himansu
Signed by: HIMANSU SEKHAR DASH
JCRLA No.22/2011 & CRLA No.63/2011
