HIGH COURT OF ORISSA, CUTTACK JAIL CRIMINAL APPEAL NO.309 OF 1998 From the judgment dated 30.10.1998 passed by Shri N.K. Rajaguru Mohapatra, Sessions Judge, Sundargarh in Sessions Trial No. 10 of 1996. Bhanja Munda ………. Appellant Versus State of Orissa ……….. Respondent For Appellant - Miss Bijayalaxmi Tripathy For Respondent - Mr. J.P. Pattnaik, Additional Govt. Advocate. PRESENT THE HON’BLE SHRI JUSTICE PRADIP MOHANTY A N D THE HON’BLE SHRI JUSTICE B.P.RAY -------------------------------------------------------------------------------------------- Date of hearing & judgment : 08.03.2010 PRADIP MOHANTY, J. This is an appeal of a prisoner to set aside the judgment and order dated 30.10.1998 passed by the learned Sessions Judge, Sundargarh in Sessions Trial No.110 of 1996 convicting him under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. Case of the prosecution, as revealed from the FIR, is that on 04.02.1996 at about 11.00 PM appellant took the deceased from her house saying that she was required by the Ward Member. As for a pretty long time she did not return home, her son Laxman Munda (P.W.9 the informant) and her daughter went in search of her towards the house of the Ward Member but to their utter surprise they found her lying dead in front of the house of one Birsingh Munda. There was cut injury on the neck of the deceased and the dead body was lying in a pool of blood. Seeing this, the informant and his sister returned home and intimated the same to the villagers. On the following day, the informant went to the house of the appellant to know the real cause of the incident and learnt from his wife that after committing the murder the appellant had left the house. The informant then approached the Grama Rakhi and with his help went to K. Balang Police Station where his oral report was reduced to writing by Sub-Inspector of Police in-charge of the police station. On the basis of the said information, the case was registered, investigation taken up and after its closure charge-sheet was laid against the appellant under Section 302, IPC. 3. Plea of the appellant is one of stout denial. In his statement under Section 313, Cr.P.C. he specifically pleaded that he was not pulling on well with the Grama Rakhi (P.W.1) and therefore the present case has been foisted at his instance. 4. In order to prove its case, prosecution examined as many as ten witnesses and exhibited twelve documents. None has been examined from the side of the defence. Out of the witnesses examined on behalf of the prosecution, P.Ws.2 and 9 are the sons of the deceased, P.Ws.4 and 6 are the younger brothers of the appellants, P.W.7 is the Medical Officer and P.W.10 is the Investigating Officer. 5. The learned Sessions Judge after conclusion of the trial found the appellant guilty under section 302, IPC, convicted him thereunder and sentenced him to undergo imprisonment for life relying on the extrajudicial confession made by the appellant before P.Ws.4 and 6, and other circumstantial evidence including failure of the appellant to explain as to how blood stains of human origin was found on his wearing apparels which were seized on his surrender at the police station. 6. Law is well settled that when the case rests entirely on circumstantial evidence, such evidence must firmly satisfy that (a) the circumstances from which the inference of guilt is to be drawn have been fully established by unimpeachable evidence beyond a shadow of doubt; (b) the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and (c) the circumstances, taken collectively, are incapable of explanation on the reasonable hypothesis save that of the guilt sought to be proved against him. 2 7. Keeping the aforesaid tests in view, let us examine the evidence adduced by the prosecution. P.W.1 is the Grama Rakhi. He deposed that P.W.9 Laxman Munda and P.W.5 Sankar Munda came to his house and informed him that the appellant had caused the death of the deceased Pala Munda. He took both of them to K. Balanga P.S. where P.W.9 orally reported the incident which was reduced to writing by the police. He further stated that P.W.9 stated in Munda language and he interpreted the same in Oriya language. The contents of the report were read over and explained by the police to the informant. Ext.1 is the said FIR and he proved his signature as Ext.1/1. In cross-examination, he admitted that they went to the police station at 9.00 AM. The police station is at a distance of 40 to 50 cubits from his house. Nothing has been elicited by way of cross-examination to discredit his testimony. P.W.2 is one of the sons of the deceased in whose presence the deceased had been taken by the accused- appellant. He deposed that the accused-appellant called his mother in the night at about 11.00 PM and on the way he killed his mother. As his mother did not return home, he went in search of her and found her lying dead in front of the house of Birsingh Munda in a pool of blood. In cross-examination, he specifically stated that while accused-appellant took the deceased, he along with his mother was sitting near the fire place. Nothing has been elicited through cross-examination to disbelieve this witness. P.W.3 is a co-villager and a witness to the seizure of Dauli (weapon of offence) vide Ext.2 and seizure of blood stained earth and sample earth vide Ext.3. P.W.4 is the younger brother of the appellant. He stated in his evidence that on the next day of the occurrence his elder brother (appellant) confessed before him that he had caused the death of Pala Munda on the previous night and he wanted to go to the police station. In cross-examination, a suggestion was given that he had not stated before the police that his elder brother Bhanja Munda confessed before him about the occurrence and that he caused the death of the deceased. Except this, nothing has been elicited from him by way of cross- examination. P.W.5 is a co-villager who went with P.W.9 to the police station to lodge FIR and inquest was held in his presence. P.W.6 is another younger brother of the appellant. He stated in his evidence that his ‘Bhauja’ (wife of the appellant) told him that his brother (appellant) committed murder of the deceased and after getting this information he did not go out and remained inside his house. In cross- examination, he stated that both his brother and ‘Bhauja’ had come to his house, but he did not open the door of his house. He also admitted that on seeing them 3 he concealed himself inside the house and had no talk with his ‘Bhauja’ and subsequently he heard regarding the death of the deceased from outsiders. P.W.7 is the doctor who conducted autopsy over the dead body of the deceased and found the following injuries : “(i) Incised wound of seize ¼” x 1” passing horizontally through the pinna of left ear and dividing into two parts. Margin of the wound was sharp and blue black in colour. Dark dried blood was adhering to the margin and base of the wound. (ii) Incised wound of size ¼” x 3” extending from a point 1” left to the chin to a point 1” above the angle of the mandible on left side. The depth of the wound was ¼” with gapping at the middle. Margin of the wound was sharp and was blue dark in colour and dark dried blood was adhered to the wound. (iii) Incised wound of size ½” x 4” with gapping at the middle about 1 ½” in width extending from the left boarder of phyroid cartilage to the point 1” below the angle of mandible on left side. The depth of the wound was about 1” on its medial aspect and 3” on its lateral aspect. The margin of the wound was sharp and blue dark in colour. Dark dried blood was adhering to the wound.” He opined that all the injuries were ante mortem in nature and the same were sufficient to cause death in ordinary course. The cause of death was due to excessive haemorrhage leading to syncope. He also stated that pursuant to the query made by the Investigating Officer he had opined that the injuries could be caused by the weapon of offence (Dauli). In cross-examination, he admitted that he had not specifically mentioned in his post-mortem report that the injuries were ante mortem in nature, but from the description of the injuries given in his report, he was sure that injuries found by him were ante mortem in nature. He also admitted that he had not put any identification mark on M.O.I at the time of his 4 examination. P.W.8 is a police constable and a witness to the inquest. P.W.9 is the informant and son of the deceased. He stated that he had seen the accused- appellant assaulting his mother by means of a Dauli. His mother fell down after receiving the injuries and died at the spot. Thereafter, he went to the police station and lodged the FIR. He admitted in cross-examination that he lodged FIR on the next day of the occurrence and that at the time of lodging FIR he had stated before police that he had seen the appellant assaulting his mother by means of a Dauli and his mother falling down and dying at the spot. P.W.10 is the Investigating Officer who seized the weapon of offence near the house of the appellant at the instance of the wife of the appellant vide seizure list Ext.2. On 06.02.1996, the appellant surrendered before the P.S. and he arrested him and seized the wearing apparels of the appellant vide Ext.9. He sent the dead body of the deceased for postmortem examination, the weapon of offence to the Medical Officer for opinion and the seized articles to R.F.S.L., Ainthapali for chemical examination. He prepared the spot map and after completion of investigation submitted final form. In cross-examination, he admitted that P.W.9 had not stated before him that he had seen the appellant assaulting his mother by means of a Dauli and that his mother fell down after receiving juries and died at the spot. He also admitted that P.W.9 was facing trial in a murder case on the allegation that he had committed murder of the wife of the appellant. 8. From the above analysis of the prosecution evidence, it is crystal clear that the prosecution has been able to establish through P.W.2 that soon before the death of the deceased the present appellant had taken her by saying that she was required by the Ward Member. When the deceased did not return home, P.W.2 went in search of her and found her lying dead and blood was coming out from her neck. On the next day of occurrence, the appellant made extrajudicial confession before his brother (P.W.4) and requested to accompany him to the police station. The appellant went to the police station and voluntarily surrendered on 06.02.1996. His wearing apparels containing blood stains were seized and sent for chemical examination. The chemical examination report reveals that the wearing apparels of the appellant were found to be stained with blood of human origin. No explanation there for has been given by the appellant in his statement recorded under Section 313, Cr.P.C. Immediately after commission of the offence, the appellant threw the weapon of offence near his house which 5 was seized by the I.O. (P.W.10) at the instance of the wife of the appellant in presence of the independent witness P.W.3. The wife of the appellant was not available for examination as she was murdered by P.W.9. P.W.7, the postmortem doctor, specifically opined that the injuries found on the body of the deceased could be possible by M.O.I (Dauli) and they were ante mortem in nature. All these circumstances cumulatively taken together lead to an irresistible conclusion that the appellant and the appellant alone is the perpetrator of the crime. 9. For the reasons stated above, this Court does not find any justification to interfere with the impugned judgment. The Jail Criminal Appeal being devoid of merit is dismissed. ……………………………… PRADIP MOHANTY,J. B.P.RAY, J. I agree. ……………………….. B.P. RAY, J. Orissa High Court, Cuttack The 8th March, 2010/ G.D. Samal 6