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2012 DIGILAW 404 (ORI)

Mangulu Majhi v. State of Orissa

2012-09-11

B.K.MISRA, PRADIP MOHANTY

body2012
JUDGMENT PRADIP MOHANTY, J. : The appellant having been convicted by the learned Additional Sessions Judge, Rayagada under Section 302 of the Indian Penal Code (in short ‘I.P.C.’) and sentenced to undergo imprisonment for life in S.C. Case No.18 of 2001 has preferred this appeal from jail. 2.The case of the prosecution, as per F.I.R. (Ext.5), is that on 5.2.2001 when informant (P.W.1), the brother of the deceased, was in his house, Suna Majhi (P.W.4) came and informed him that the accused killed his sister (deceased) by dealing axe blows. On getting such information, P.W.1 went to village Malipadar and saw his sister lying dead with bleeding injury. The informant then came to Kasipur, got the FIR scribed through one Singh Babu (P.W.7) and presented it before the Kasipur Police Station. The police on the basis of the said F.I.R. registered a case, took up investigation and ultimately on its completion filed charge-sheet under Section 302, IPC against the appellant. On receipt of the charge-sheet cognizance was taken and the case was committed to the Court of Session for trial. 3.During trial the appellant took the plea of denial. The prosecution in order to substantiate the charge examined as many as ten witnesses and exhibited nine documents. The defence examined none. Learned trial judge on appraisal of the evidence on record found the appellant guilty for commission of offence punishable under Section 302, IPC and convicted him thereunder basing upon the extra judicial confession made before P.Ws.1 to 4 and the scientific examination report (Ext.9), which reveals that stains of human blood appearing in the wearing apparels of the deceased to be of same group as on the wearing apparels of the appellant to which no explanation has been offered by the appellant. 4.Mr. Tewari, learned counsel for the appellant assails the conviction on the ground that P.Ws.1 to 4 being untrustworthy witnesses, no reliance can be placed on the so called extrajudicial confession said to have been made before them. If the evidence with regard extrajudicial confession is discarded, there is no other clinching evidence on which conviction of the appellant can be based. Furthermore, at the time of occurrence the appellant was insane and, therefore, benefit of Section 84, IPC may be extended to him. 5.Mr. If the evidence with regard extrajudicial confession is discarded, there is no other clinching evidence on which conviction of the appellant can be based. Furthermore, at the time of occurrence the appellant was insane and, therefore, benefit of Section 84, IPC may be extended to him. 5.Mr. Jafuralla, learned Additional Standing Counsel, on the other hand, supports the judgment of conviction and contends that the evidence of P.Ws.1 to 4 with regard to extrajudicial confession is clear, cogent and convincing. Their evidence gets corroboration from the scientific examination report. No explanation has been given by the appellant how human blood of same group as appearing in the wearing apparels of the deceased came to his wearing apparels. Therefore, there is no scope for this Court to interfere with the impugned judgment of conviction and sentence recorded by the trial Court. 6.This Court carefully and meticulously examined the depositions of the witnesses and contents of exhibited documents adduced on behalf of the prosecution in evidence. P.W.1, the brother of the deceased, is the informant of the case. He stated that the deceased was given in marriage to the appellant ten years back (from the date of deposition). On getting information from Suna Majhi (P.W.4) of Malipadar village that his sister had been killed by the appellant, he immediately rushed to the spot and found his sister lying dead sustaining bleeding injuries and the appellant was tied by villagers. Being asked by him, the appellant confessed before him to have killed the deceased. Then he went to Kasipur and narrated the incident before Singh Babu (P.W.7), who having reduced the same to writing read over to him and obtained his thumb impression. Thereafter, he presented the report before the police. In cross-examination, a suggestion was given to him that the accused did not confess his guilt before him and he falsely implicated the accused in the crime out of suspicion, but he denied the same. P.W.2, who is an agnatic brother and an immediate neighbour of the appellant, deposed that in the night of occurrence on being called by the appellant when he woke up, the appellant disclosed before him that he killed his wife. To verify the statement of the appellant, he called other villagers and proceeded to the house of the appellant. P.W.2, who is an agnatic brother and an immediate neighbour of the appellant, deposed that in the night of occurrence on being called by the appellant when he woke up, the appellant disclosed before him that he killed his wife. To verify the statement of the appellant, he called other villagers and proceeded to the house of the appellant. On arrival, he found the deceased lying dead on a cot sustaining bleeding injuries on her neck and near right ear. On the following morning, they sent P.W.4 to inform P.W.1. In cross-examination, even though initially he admitted that the appellant had not disclosed before him about killing of his wife by means of axe and that at times the appellant was showing sign of temporary insanity, subsequently to the defence suggestion he testified “it is not a fact that accused had not confessed before me and had not called me on the occurrence night and I am falsely implicating him.” P.W.3, who is a co-villager of the appellant, stated in his examination in chief that in the night of occurrence hearing ‘hullah’ he came to the street and found a gathering in front of the house of appellant. He went there and saw the wife of the appellant lying dead on a cot. Being asked by him, he appellant confessed before him to have killed his wife. Villagers detained the appellant by tying him in a rope, lest he would escape, and sent P.W.4 to inform P.W.1 regarding the death of the deceased. On the next day, P.W.1 came to their village, found his sister lying dead and after ascertaining about the incident proceed to Kashipur to lodge the report before police. Around 4 PM police arrived at their village, seized the axe from the house of the appellant, bloodstained earth and sample earth and prepared seizure list. In cross-examination, he admitted that to his knowledge the appellant and the deceased were pulling on well. To the defence suggestion he further admitted “It is not a fact that accused had confessed his guilty before me and I am falsely implicating him at the instance of villagers.” P.W.4, who is another co-villager, in his examination-in-chief stated that in the night of occurrence hearing ‘hullah’ he proceeded to the house of the appellant and found the wife of the appellant lying dead on a cot. Near her a ‘debri’ was burning and an axe was lying. Being asked, the appellant confessed his guilt to have killed his wife. Thereafter, he proceeded to village Borangi to inform P.W.1, the informant. P.W.1 came with him (P.W.4) and found his sister lying dead. He further deposed that in his presence police seized the bloodstained axe and collected the bloodstained earth from the spot. In cross-examination, he admitted that the appellant was having mental trouble at times and his mind was not remaining in order at times. He denied the suggestions given by defence counsel that the appellant had not confessed his guilt before him and he was falsely deposing and that police had not seized any bloodstained axe from the house of the appellant. P.W.5 is a police constable and a witness to the seizure of wearing apparels of the appellant seized under Ext.3. P.W.6 is also a police constable who took the dead body of the deceased for post-mortem examination. P.W.7 is the scribe of the FIR. He stated that as per the version of Madhu (P.W.1) he scribed the report (Ext.5), read over the same to him and obtained his thumb impression. P.W.8 is the doctor, who conducted post-mortem examination over the dead body of the deceased and found the following external injuries :- “(i)Clean cut injury in front of right side neck of size 5.5. cm x 2.5 cm X 2 cm caused by sharp cutting weapon; and (ii)Clean cut injury behind the neck below the right ear of size 5.5. cm X 2.5 cm X 2.5 cm caused by sharp cutting weapon.” He opined that the cause of death was due to haemorragic shock and the injuries were grievous and homicidal in nature. The injuries found on the person of the deceased could be possible by the axe produced before him. He proved the post-mortem report (Ext.6) and opinion report (Ext.7). P.W.9 is the A.S.I. of police, who received the written report and registered the case. He took up investigation, examined the informant and the scribe of the F.I.R., made inquest over the dead body, prepared inquest report and seized the bloodstained axe from the spot so also the wearing apparels of the deceased and accused. On 06.02.2001, he arrested the accused. Subsequently, he made over the charge of investigation to P.W.10. He took up investigation, examined the informant and the scribe of the F.I.R., made inquest over the dead body, prepared inquest report and seized the bloodstained axe from the spot so also the wearing apparels of the deceased and accused. On 06.02.2001, he arrested the accused. Subsequently, he made over the charge of investigation to P.W.10. In cross-examination he admitted that by the time of his arrival the villagers had detained the appellant. P.W.10 is the O.I.C. of Kashipur Police Station who took charge of investigation from P.W.9 on 03.04.2001, obtained post-mortem report, sent a query to the doctor as to whether injuries sustained by deceased were possible by the seized axe and after completion of investigation submitted charge-sheet against the appellant. 7.After going through the entire evidence, it is concluded that the deceased had died a homicidal death. Even though there is no direct evidence as to the appellant committing murder of the deceased, from the circumstantial evidence it is established that in the night of occurrence both the appellant and his wife (deceased) were living together in their house, hearing cry the villagers gathered near their house and being asked the appellant confessed before them to have killed the deceased. This is evident from the evidence of the co-villagers, i.e., P.Ws.2, 3 and 4. All of them have categorically deposed that hearing ‘hullah’ when they arrived near the house of the appellant they found the deceased lying dead and the appellant confessed before them to have killed her. Brother of the deceased P.W.1, who arrived on the following morning on being informed by P.W.4, also deposed that on being asked the appellant, who was tied by the villagers, confessed before him to have killed the deceased. As the evidence of these witnesses with regard to extrajudicial confession is consistent and corroborating each other, there is no reason to discard their evidence. The weapon of offence, i.e., axe stained with human blood was seized from the spot. The doctor (P.W.8) opined that the injuries found on the person of the deceased could be possible by the seized axe. Chemical examination report reveals that human blood of group ‘A’, which was the blood group of the deceased, was found on the weapon of offence, wearing apparels of the deceased and that of the appellant. The doctor (P.W.8) opined that the injuries found on the person of the deceased could be possible by the seized axe. Chemical examination report reveals that human blood of group ‘A’, which was the blood group of the deceased, was found on the weapon of offence, wearing apparels of the deceased and that of the appellant. No explanation has been offered by the appellant how blood of the deceased came to his wearing apparels and how deceased died. It is true that P.W.4 in cross-examination has admitted that the appellant was having mental trouble at times and his mind was not remaining in order at times. But, surprisingly no such plea was taken by the appellant during trial. No documentary proof has also been adduced in evidence on behalf of the appellant that he was insane at the time of occurrence. It is the settled principle of law that onus is upon the accused to prove the plea of insanity. But, in the instant case there is no material to show that at the time of occurrence or at the time of confession the appellant was either talking incoherently or behaving abnormally. Therefore, the plea of insanity advanced by the learned counsel for the appellant cannot be accepted. 8.In view of the foregoing discussions, this Court holds that the prosecution has been able to prove beyond all reasonable doubt that the appellant is the author of the crime. As such, the impugned judgment of conviction and sentence passed by the trial Court does not warrant interference by this Court. 9.In the result, the Jail Criminal Appeal is dismissed upholding the conviction and sentence imposed by the trial Court. B.K. MISRA, J.I agree. Appeal dismissed.