Bikram Mahali Vs. State

Bikram Mahali vs State

Disposition Appeal dismissed Court Orissa Decided Dec 06, 2007

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https://sooperkanoon.com/case/536955

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Citation: sooperkanoon.com/536955
Court: Orissa High Court
Judge: P.K. Tripathy and; Pradip Mohanty, JJ.
Decided On: Dec 06, 2007
Subject: Criminal
Disposition: Appeal dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section ...

Key legal issue: Criminal
Outcome / disposition: Appeal dismissed

Parties & Advocates

Appellant / Petitioner

Bikram Mahali

Respondent

State

Legal References

Reported In: 2008(II)OLR23

Excerpt

.....or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - ..........ext. 9 is the spot map and ext. 3 is the inquest report.6. on assessment of evidence on record, learned sessions judge held that the prosecution has not been able to prove that the accused made any extra judicial confession. he, however, held that facts admitted by the accused in course of trial are sufficient to complete the chain of the circumstances so as to find him guilty of committing murder of his wife. in that respect, learned sessions judge took note of the report ext.7 to hold that the deceased suffered a homicidal death. he took note of the statement of p.ws. 1 and 3 who stated to have last seen the accused with the deceased at the spot where they took handia and from there the accused took his wife to his village. admittedly; accused resorted to a different route. later, accused told the villagers and p.ws. 1 and 3 that his wife died by taking poison and such fact was also reported by the accused to p.w.5, the police officer. learned sessions judge also took note of the report ext. 12 of the chemical analyst. needless to say that the report is contrary to the statement the bottle was containing poison.7. on careful consideration and perusal of the entire evidence, we find that the extra judicial confession said to have been made by the accused is not acceptable. however, the circumstances, which have been taken note of by the learned sessions judge, are acceptable to show the conduct of the accused and prove the charge. the medicolegal evidence also rules out the death of the deceased by taking poison, as pleaded by the accused. therefore, we do not find any reason to interfere with the order of conviction and sentence. for the reasons stated, the jcrla is dismissed8. before parting with case, we may observe that the accused is a tribal man in the district of mayurbhanj, and there was no motive to murder but for the frail desire expressed by his wife. in such circumstance, the accused deserves special consideration under section 433 cr.p.c. the.....

Full Judgment

1. Heard further and the judgment is as follows:

2. The appellant challenges the order of conviction and sentence imposed against him by the Sessions Judge, Mayurbhanj in S.T. Case No. 55 of 1995.

3. It appears on record that the appellant was charged under Sections 302/203 IPC on the allegation that on 24.10.1994 at about 7.00 P.M. he committed intentional murder of his wife and caused her death by strangulation and that gave false information to the police that his wife died due to taking of poison.

4. According to the case of the prosecution, the accused is the husband and Hira Mahali (hereinafter referred as 'deceased') is his wife. After leading a happy conjugal life for long period with the accused, the deceased expressed her desire to stay with her sister's husband because he was more attractive. On the date of occurrence, when the deceased and the accused were returning home from the market, the deceased also expressed similar desire. They joined Ram Mahali, Raghunath Mahali and their wives and took Handia, Thereafter, they resorted to Keshapada route to reach their village Balma, whereas the others proceeded on the other route and reached the same village. The accused came and reported to his mother and brother-Jeda @ Jagannath Mahali (P.W.2) that his wife died by consuming poison and therefore the mother should not prepare fish curry. He also called the villagers and narrated the story of death of his wife by taking poison. Thereafter, the accused along with the villagers went and reported the matter before the police station. On the basis of such information, inquest was held and an empty bottle was found near the dead body. In course of post-mortem examination however, it was found that she died due to homicidal strangulation and not because of taking poison. Under such circumstances, a case was registered under Section 302 IPC. On completion of investigation, charge sheet was submitted against the accused under the aforesaid offences.

In the trial appellant took the plea of complete denial to the allegation of commission of murder by him.

5. Admittedly, prosecution case against the accused is based on circumstantial evidence in absence of any direct evidence. There is no eye witness to the occurrence. To substantiate the charge, prosecution examined as many as six witnesses. Amongst them, P.Ws. 1 and 3 are the witnesses who met the deceased and accused on the way, P.W. 2 is the brother of the accused, P.W. 4 is the medical officer who conducted the post mortem examination and proved the report Ext. 7, and P.Ws. 5 and 6 are police officers who participated in the investigation. Exts. 4, 5 and 6 are the statement under Section 164 Cr.P.C. respectively of P.Ws. 1, 2 and 3. Ext.-11 is the report of the Chemical Analyst on examination of the bottle M.O.I, found near the dead body. Ext. 9 is the spot map and Ext. 3 is the inquest report.

6. On assessment of evidence on record, learned Sessions Judge held that the prosecution has not been able to prove that the accused made any extra judicial confession. He, however, held that facts admitted by the accused in course of trial are sufficient to complete the chain of the circumstances so as to find him guilty of committing murder of his wife. In that respect, learned Sessions Judge took note of the report Ext.7 to hold that the deceased suffered a homicidal death. He took note of the statement of P.Ws. 1 and 3 who stated to have last seen the accused with the deceased at the spot where they took handia and from there the accused took his wife to his village. Admittedly; accused resorted to a different route. Later, accused told the villagers and P.Ws. 1 and 3 that his wife died by taking poison and such fact was also reported by the accused to P.W.5, the police officer. Learned Sessions Judge also took note of the report Ext. 12 of the Chemical Analyst. Needless to say that the report is contrary to the statement the bottle was containing poison.

7. On careful consideration and perusal of the entire evidence, we find that the extra judicial confession said to have been made by the accused is not acceptable. However, the circumstances, which have been taken note of by the learned Sessions Judge, are acceptable to show the conduct of the accused and prove the charge. The medicolegal evidence also rules out the death of the deceased by taking poison, as pleaded by the accused. Therefore, we do not find any reason to interfere with the order of conviction and sentence. For the reasons stated, the JCRLA is dismissed

8. Before parting with case, we may observe that the accused is a tribal man in the district of Mayurbhanj, and there was no motive to murder but for the frail desire expressed by his wife. In such circumstance, the accused deserves special consideration under Section 433 Cr.P.C. The Government therefore, may take appropriate action in that respect and give due benefit to the accused if he is entitled to the same,

Same Court & Year Orissa · 2007 Same Parties Bikram Mahali vs State Same Subject Criminal Same Judge P.K. Tripathy and; Pradip Mohanty, JJ.

Criminal