Partly allowed

Bina@Binod Sahoo v. State of Orissa

Orissa HC5 Sept 2023JCRLA/78/2017

Case brief

AI extract

What is this about?

In an appeal against conviction and sentence for murder and attempted suicide, the High Court of Orissa affirmed the conviction but modified the sentence to remove the stipulation of imprisonment for the whole natural life, noting the lack of reasons for such harsh restriction.

What did the court decide?

Conviction confirmed; sentence modified to life imprisonment for Section 302 IPC without the 'whole natural life' stipulation; no separate sentence for Section 309 IPC.

Bina@Binod Sahoo Vs State of Orissa — Murder and Culpable Homicide | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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JCRLA No.78 of 2017

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In the matter of an Appeal under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 17^th December, 2014 passed by the learned Additional Sessions Judge, Kamakhyanagar, in Criminal Trial (Sess) No.27/27 of 2012 (50/2014).

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Bina @ Binod Sahoo …. Appellant
-versus-
….
State of Odisha Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.P. Rama Krishna Patro
(Advocate)
For Respondent - Mr.P.K. Mohanty,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI

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Date of Hearing : 31.08.2023 : Date of Judgment:05.09.2023

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D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and the order of sentence dated 17^th December, 2014 passed by the learned Additional Sessions Judge, Kamakhyanagar, in Criminal Trial (Sess) No.27/27 of 2012 (50/2014) arising out of G.R. Case

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JCRLA No.78 of 2017

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No.66/11 (C.T.1/12) corresponding to Bhuban P.S. Case No.66 of 2011 of the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Bhuban.

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The Appellant (accused) thereunder has been convicted for committing the offence under sections 302/309 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life with the stipulation that it would be for the whole natural life for commission of the offence under section 302 of the I.P.C; and rigorous imprisonment for six (6) months for commission of the offence under section 309 of the IPC with the direction that the sentences would run concurrently.

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2. Prosecution Case:-

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On 02.08.2011 night, the accused, namely, Bina @ Binod Sahoo and his wife Biju @ Bijayalaxmi Sahu went for sleep after taking their meal. In the morning of 03.08.2011, there came no response from the bedroom where they had slept by bolting it from inside. Ranjan Sahu (informant-P.W.8), who is the brother of this accused and others could then detect blood to be flowing out on the floor from inside that bedroom. Therefore, suspicion having arisen that some incident like murder to have occurred inside the room, Ranjan (informant-P.W.8) lodged a written report with the Inspector-in-Charge (I.I.C.) of Bhuban Police

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Station (P.S). The I.I.C., receiving the said written report, treated it as the FIR and after registering the case, took up the investigation.

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3. In course of investigation, the Investigating Officer (I.O.P.W.14) examined the Informant (P.W.8) and then went to the spot, which is the house of the accused and in VillageTolakbereni. He simultaneously sent the request of the Superintendent of Police (SP), Dhenkanal to depute the scientific team to the spot to assist him in the investigation and also requested the Sub-Divisional Magistrate (SDM), Kamakhyanagar to depute an Executive Magistrate to remain present at the time of opening of the room. He too sent a message to the Medical Officer, Bhuban Community Health Centre (CHC) to remain present at the spot at that time. The I.O. (P.W.14), with the Executive Magistrate (P.W.13) and the Medical Officer (P.W.2) when were present near the room, heard some unusual sound coming from inside and the I.O. (P.W.14) then focusing the torch light into the room through the window, detected that the accused was making such sound as his throat was cut. The I.O. (P.W.14) had then entered into that room by climbing that wall, which was separating two rooms and opened the door of the concerned room. It was detected that Bijaylaxmi, the wife of the accused was lying dead in pool of blood and the accused was

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then in a critical condition with cut injury on his throat. The accused was immediately sent for treatment and medical examination to Bhuban, CHC. The I.O. (P.W.14) prepared the spot map (Ext.7) and held the inquest over the dead body of Bijayalaxmi (deceased) in presence of the Executive Magistrate (P.W.13) and other witnesses followed by preparation of the report (Ext.1). He also examined few other witnesses and sent the dead body of the deceased for post mortem examination. He seized some incriminating articles with the help of Scientific Officer from the spot and the wearing apparels of the deceased were later on seized on production by the police constable, who had accompanied the dead body for post mortem examination under seizure list (Ext.9). Few more witnesses were examined by the I.O. (P.W.14). Since the condition of the accused deteriorated, he, being referred to S.C.B. Medical College & Hospital, Cuttack for better treatment, was so shifted. The I.O. (P.W.14) sent the incriminating articles for chemical examination. From the collected materials, the I.O. (P.W.14) could ascertain that the accused, having murdered his wife, himself had attempted to commit suicide by cutting his throat. Since the accused survived after treatment, he was arrested after his discharge and forwarded in custody to Court. The I.O. (P.W.14), being under the orders of transfer, then handed over the investigation of the case to his successor in office, i.e., P.W.12, who, on completion of the

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investigation, submitted the Final Form placing the accused to face the Trial for commission of the offence under section 302/309 of the IPC.

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4. Learned J.M.F.C., Bhuban, on receipt of the Final Form, took cognizance of said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offence against the accused.

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5. The prosecution, in support of its case, has examined in total fourteen (14) witnesses during Trial. As already stated, the brother of the accused, who had lodged the written report, which was treated as FIR (Ext.6) is P.W.8. P.W.7 is the wife of P.W.8. P.W.9 is the minor son of the accused and the deceased. The witnesses to the inquest are P.Ws.1, 3, 6, 13 whereas P.Ws.3, 4 and 10 are the witnesses to the seizure. The Scientific Officer, who has assisted the I.O. (P.W.14) in the investigation, has come to the witness box is P.W.11 and P.W.2 is the Medical officer, who had conducted the autopsy over the dead body of the deceased and medically examined the accused.

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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 9. Out of those; important are the FIR (Ext.6); inquest report (Ext.1);

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post mortem report (Ext.2); injury report (Ext.3) and the spot map (Ext.7).

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6. The accused, being called upon, has examined himself, with the permission of the Court as D.W.1 in support of his defence of complete denial and false implication.

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7. The Doctor, who had conducted the autopsy over the dead body of the deceased, has been examined from the side of the prosecution as P.W.2. He too has noticed six incised wounds all over the body of the deceased. In his evidence, he has stated the details of the seats of those injuries as also their dimensions. The incised wounds were over the neck, anterior chest wall below left clavicle, above left wrist, anteriorily and obliquely, below lower lip, middle of left fore-arm and left frontal area little away to the mid line cover. It has been stated by him that all such injuries were ante mortem in nature and the cause of death was on account of excessive bleeding from the above injuries leading to shock and comma. We further find that in his report (Ext.2), he has noted all those injuries, their seats and dimensions what he has spoken during trial. There is even no such attempt to question the evidence of the Doctor (P.W.2). In this case, we too find the evidence of the I.O. (P.W.14), who held the inquest over the dead body of the deceased and prepared his report (Ext.1) wherein those injuries on the dead body as seen by him have

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been noted. Other witnesses including the informant (P.W.8), who is the brother of the accused, has stated to have seen the deceased, lying with incised wounds on her body. In view of all the evidence, as discussed, we are left with no option but to conclude that the nature of death of Bijayalaxmi, the wife of the accused, was homicidal.

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8. Mr.P.R.K. Patro, learned counsel for the Appellant (accused) submitted that there being no direct evidence to implicate the accused, the evidence of P.Ws.3, 6, 7, 8, 9 and 14 on their proper appreciation are not sufficient to hold that the charges against the accused have been established beyond reasonable doubt. He further submitted that simply because the dead body was recovered from the room where the accused then was present when his evidence that he has been falsely implicated appears to be probable, the Trial Court has gone wrong in convicting him for the offence under section 302/309 of the IPC.

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9. Mr.P.K.Mohanty, learned Additional Standing Counsel for the Respondent-State, submitted that here the prosecution through clear, cogent and acceptable evidence when has established that the accused was there in the room where the deceased was lying dead, having incised wounds over her body and also it having been proved that the accuse was then having

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the injury on his person, those remaining totally unexplained from the side of the accused even in his evidence as D.W.1, the conviction is well in order. He submitted that the prosecution, having established the foundational facts as to the recovery of the dead body lying in a pool of blood from the bedroom, which was locked from inside and the presence of the accused inside that room with injury, the burden of proof, having been shifted upon the shoulder of the accused, since the rest happenings when are within the special knowledge of the accused in the absence of any explanation falling from the lips of the accused, the finding of the Trial court holding the accused to have murdered his wife is unassailable.

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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 14) and have perused the documents admitted in evidence marked as Exts.1 to 9.

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11. In order to address the rival submission and decide as to the sustainability of the conviction of the accused as has been recorded by the Trial Court, we are called upon to undertake the exercise the scrutiny of evidence let in during the Trial.

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12. The brother of the accused, who had submitted the written report, which has been treated as FIR and admitted in evidence Page 8 of 16 JCRLA No.78 of 2017

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and marked Ext.6, has been examined as P.W.8. He has narrated in the FIR (Ext.6) lodged on 03.08.2011 morning that on the prevision night, his brother (accused) and his wife, after taking meal, went to the bedroom for sleep and on the morning when the accused and his wife were called, no response came from inside the room and then it was noticed that blood was coming out of the room. This written report being lodged with the IIC of Bhuban P.S.; he (P.W.14) examined this P.W.8 and immediately rushed to the spot. He has stated that having arrived there in front of the room, he heard some unusual sound from inside the room and he, therefore, he having focusing the torchlight into the room through the window, could detect that the accused was making such sound and he was then having a cut on his throat. He has further deposed that having entered into the room by climbing the wall separating the two rooms of the house, he saw the wife of the accused, namely, Bijayalaxmi lying dead in a pool of blood and the accused to be in critical condition for the cut on his throat. He has further stated that the accused was immediately sent to Bhuban C.H.C. for treatment and therefrom to the S.C.B. Medical College and Hospital, Cuttack for better treatment where after some days of treatment, the accused was discharged.

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P.W.1 is a co-villager. He has stated that having received the telephone call from P.W.6, he rushed to the house of the accused and saw the accused and his wife (deceased) were lying in pool of blood. He has further stated that the wife of the accused was then dead. It is his evidence that the door of the room was opened by the police in presence of the Executive Magistrate (P.W.13).

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P.W.3 is another co-villager, who has stated that being informed by P.W.7, the wife of the informant (P.W.8), who is the brother of the accused, he came to the house and saw through the window that the accused and his wife (deceased) were lying in a pool of blood in that room. He has further stated that door of that house being found to have been locked from inside was opened in presence of the Executive Magistrate (P.W.13).

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13. It has been stated by P.W.5 that on being requested by the brother of the deceased, he had been to the said house and seeing blood coming from inside the room, he too had been the door to have been fastened from inside. He has also stated that the deceased and the accused were lying found inside the room in a pool of blood. The brother of the deceased is P.W.6, who has stated about the motive. It is his evidence that prior to the occurrence, the accused closed his business and sitting idle for which there was frequent quarrel between the accused and his

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wife (deceased) and for that, he had come and subsided the quarrel on many occasions. It is his further evidence that some time before the occurrence, the gold chain of the deceased, being sold, the sale proceeds received therefrom was being spent for their living. He has further stated that on the morning, having come there after receiving information about the incident, he saw the deceased lying in a pool of blood and accused with cut injury on his throat. He has further stated that the accused was burdened with private loan taken from different persons and was not able to repay the same. So, as per the evidence of this witness (P.W.6), the accused was in an extremely perplexed mood, having no earning and being unable to clear up the heavy debt burden.

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The evidence of P.W.7, who is the wife of P.W.8 also run in the same vein. She has stated that the accused was residing in their house at Talakbereni. As per her evidence, one room was being occupied by her husband (P.W.8) and the other room was in occupation of the accused. She has stated that the accused was earning his livelihood by selling chicken and two years before, he had closed his business and, therefore, the accused and his wife were frequently having the quarrel. It has also been stated by P.W.7 that in order to maintain, the accused had sold the gold chain of the deceased. She, being present in the other room adjoining the room where the accused and his wife (deceased) were sleeping, has stated that around midnight, she heard the

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hullah of the deceased and woke up and heard the deceased saying “ RAKHYA KARA RAKHYA KARA” (Save me; Save me) and thereafter, the children of the accused came out of the room being driven out by the accused in crying condition and the accused closed the door from inside while telling that he would kill the deceased and commit suicide. The evidence of this witness, on the above aspects, appears to have not at all been shaken; nor any such material has been elicited during strenuous cross-examination to doubt her version as to her presence in the night in the adjoining room, hearing the shout, seeing the children of the accused coming out being driven by the accused and the accused then going inside the room where his wife (deceased) was there and closing the door from inside after declaring that he would kill his wife and commit suicide and soon thereafter the incident to have happened in the room. All these happenings as stated by P.W.8 in course of same transaction. When such is the evidence of P.W.7, we also find the evidence of P.W.9, who is none other than the minor son of the accused and deceased. The Trial Court, having tested his competency to depose in Court, has recorded his evidence. He has stated that during the night, while he, with his brother, were sleeping, their mother (deceased) called and told them to go outside or else they would be killed by their father (accused). He has further deposed that soon thereafter their father drove them

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out of the room, killed their mother. He has also stated to have seen the accused assaulting his mother by means of Katari and then gone for inflicting injury on his person. The evidence of this witness, during cross-examination, as pointed out by the learned counsel for the Appellant (accused) to be totally demolishing his evidence in chief is actually not so. It appears from his deposition that a general question being asked as to when they go for sleep and woke up in the morning and what they do while sleeping, P.W.9 has given the answer, which have nothing to do as regards the happenings on the night and from that, by no stretch of imagination, one can say that was also the happening in the very night when the occurrence took place and thus, this P.W.9 is stating falsehood. This child witness (P.W.9) is found to be a natural witness and his presence at home in the night cannot be doubted.

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The evidence of all these witnesses receives full corroboration from the evidence of the Doctor (P.W.2), who has stated regarding the injuries on the deceased as also on the neck of the accused.

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14. The accused, having examined himself, is not coming out with any explanation. He simply says that he has been falsely implicated. It is not stated by him as to even how he received the injuries and who is the author of the same. When we find that the

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evidence of the prosecution witnesses to be wholly acceptable on the score that when the door of the room was opened the accused was lying in an injured condition and his wife was dead, we find the accused to be at least not stating as to what happened inside the room that his condition became like that leaving aside as to how his wife (deceased) sustained such injuries. Thus, the prosecution, having established all these foundational facts, the accused since has not led any evidence to the satisfaction of the court, for being tested in the touchstone of preponderance of probability, the finding of the Trial court that it is the accused, who is guilty of committing the murder of his wife (Bijayalaxmi) and attempting to committing the suicide is well in order.

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15. Having held as above, when we turn our attention to the sentence imposed by the Trial Court for the offence under section 302 of the IPC directing the accused to undergo imprisonment for life that is for whole of natural life, it is seen that said later stipulation is without assignment of any reason whatever. The Trial Court has taken a clear view that the case at hand does not fall within the category of rarest of rare cases. But then while sentencing the accused to undergo rigorous imprisonment for life, the stipulation indicated is that it should be for the whole natural life. The Trial Court has found that the circumstances of the crime and the circumstances of the criminal being

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cumulatively viewed, the sentence of life imprisonment is not foreclosed and grossly disproportionate. But then it has also not been stated by the Trial Court that the sentence of life imprisonment simpliciter would not be proportionate to the gravity of the offence committed and would not meet the end to respond to the crime.

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Having noticed the circumstances of the crime and the circumstances of the criminal, we are unable to concur with the stipulation imposed by the Trial Court that the imprisonment for life would be for the whole natural life as that without being supported by the required reason which we are unable to cull out, may stand to restrict the right of the accused claim remission in the sentence of life imprisonment simpliciter as provided in law and policy holding the field.

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Accordingly, the Appeal stands disposed of. The judgment of conviction dated 17.12.2014 passed by the learned Additional Sessions Judge, Kamakhyanagar, in Criminal Trial (Sess) No.27/27 of 2012 (50/50 of 2014) being confirmed; the order of sentence passed thereunder stands modified to the extent as indicated above that Appellant (accused) shall undergo imprisonment for life for the offence under section 302 of the IPC. In the facts and circumstances, having imposed the sentence of life imprisonment upon the Appellant (accused), we do not

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propose to impose separate sentence for the offence under section 309 of the IPC.

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(D. Dash) Judge

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Dr.S.K. Panigrahi, J. I Agree.

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(Dr.S.K. Panigrahi)

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Judge

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Basu

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Signature Not Verified

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Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 11-Sep-2023 17:41:02

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JCRLA No.78 of 2017

Bina@Binod Sahoo v. State of Orissa

Case brief

What is this about?

What did the court decide?

Bina@Binod Sahoo v. State of Orissa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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