Kandru Murmu Vs. State of Orissa

Decided On : Jun-19-2007

Court : Orissa

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			'casenote' => ' - 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 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original 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. 
 -  We do not find as to why learned Sessions Judge failed to discuss the aforesaid aspect and also failed to appreciate the position of law and accordingly he committed mistake by recording an order of conviction against the accused.',
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			'judgement' => '<p style="text-align: justify;">1. Heard and the judgment is as follows:</p><p style="text-align: justify;">Accused faced trial for the offence under Section 302 IPC on the allegation of committing murder of his wife by severing her head on the suspicion of practising witchcraft. The occurrence took place on 29.10.1994. At about 2.30 P.M. on that day accused was found moving towards the police station with the severed head of his wife and a bloodstained axe. On the way he made extra judicial confession before the witnesses and thereafter in the police station deposited the head and the axe. The aforesaid aspect put the Investigating Officer into action and thereafter without probing much he completed the investigation citing few people as witnesses to the occurrence and few to prove extra judicial confession. The seized weapon and' the blood stained wearing apparels of the accused together with the blood stained apparels of the deceased were sent for chemical analysis and the confirming report-Exts. 10 and 11 was received from the Science Laboratory. In course of trial accused took plea of denial and prosecution examined nine witnesses to substantiate the charge against the accused. On assessment of evidence of witnesses, learned Sessions Judge, Mayurbhanj, Baripada delivered the impugned judgment on 25.06.1997 in S.T. Case No. 38 of 1995 recording guilt of the accused for the offence under Section 302 IPC and sentenced him to life imprisonment (wrongly mentioned as rigorous imprisonment for life).</p><p style="text-align: justify;">2. While assailing the order of conviction learned Counsel for the appellant argues that learned Sessions Judge took note of absence of any evidence to connect the accused with the alleged crime but only on the basis of the circumstantial evidence that accused produced the severed head and the axe in the Police Station and that he did not deny to the questions put in course of his examination under Section 313 Cr.P.C. and that his wearing apparels were stained with human blood of same group as that of the deceased, accused was held guilty and convicted in the above indicated manner. Learned Counsel for the appellant further argues that on perusal of evidence on record no direct or circumstantial evidence is available to prove the charge against the accused beyond all reasonable doubt and under such circumstance the order of conviction is liable to be set aside.</p><p style="text-align: justify;">3. Learned Addl. Standing Counsel, on the other hand, advances argument supporting the impugned order of conviction but unable to put forth any evidence which can substantiate the charge against the accused.</p><p style="text-align: justify;">4. We see on record that neither the witnesses to the occurrence viz. PWs 3 and 7 nor the witness to the extra judicial confession, viz. PWs. 4 and 5 supported the prosecution case. Evidence of P.W. No. 2 that accused made an extra-judicial confession before him at the police station was found to be an afterthought inasmuch as no such statement was recorded by the Investigating Officer. Under such circumstances, the trial Court was constrained to record the findings that direct substantial evidence on the above aspect are nexus so as to substantiate the charge.</p><p style="text-align: justify;">5. Learned Sessions Judge, however, took into consideration the circumstances under which the accused produced the severed head of his wife together with the bloodstained wearing apparels of the deceased and the confirming report, Exts. 10 & 11. As rightly argued by learned Counsel for the appellant, the aforesaid two circumstances jointly or independently are not sufficient to make out a chain of circumstance so as to unfailingly constitute guilty of the accused. We do not find as to why learned Sessions Judge failed to discuss the aforesaid aspect and also failed to appreciate the position of law and accordingly he committed mistake by recording an order of conviction against the accused.</p><p style="text-align: justify;">The evidence recorded by the trial Court is not sufficient to prove the charge under Section 302 IPC. It is the settled principle of law that findings in a criminal case is to be based on clear proof of fact, be it by direct or circumstantial evidence. In this case, there is no such proof and therefore the order of conviction is set aside and the accused is granted the benefit of doubt and accordingly acquitted. If the accused is still in jail custody, he be set at liberty forthwith if his detention is not required in any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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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. 
 -  We do not find as to why learned Sessions Judge failed to discuss the aforesaid aspect and also failed to appreciate the position of law and accordingly he committed mistake by recording an order of conviction against the accused.',
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			'judgement' => '<p style="text-align: justify;">1. Heard and the judgment is as follows:</p><p style="text-align: justify;">Accused faced trial for the offence under Section 302 IPC on the allegation of committing murder of his wife by severing her head on the suspicion of practising witchcraft. The occurrence took place on 29.10.1994. At about 2.30 P.M. on that day accused was found moving towards the police station with the severed head of his wife and a bloodstained axe. On the way he made extra judicial confession before the witnesses and thereafter in the police station deposited the head and the axe. The aforesaid aspect put the Investigating Officer into action and thereafter without probing much he completed the investigation citing few people as witnesses to the occurrence and few to prove extra judicial confession. The seized weapon and' the blood stained wearing apparels of the accused together with the blood stained apparels of the deceased were sent for chemical analysis and the confirming report-Exts. 10 and 11 was received from the Science Laboratory. In course of trial accused took plea of denial and prosecution examined nine witnesses to substantiate the charge against the accused. On assessment of evidence of witnesses, learned Sessions Judge, Mayurbhanj, Baripada delivered the impugned judgment on 25.06.1997 in S.T. Case No. 38 of 1995 recording guilt of the accused for the offence under Section 302 IPC and sentenced him to life imprisonment (wrongly mentioned as rigorous imprisonment for life).</p><p style="text-align: justify;">2. While assailing the order of conviction learned Counsel for the appellant argues that learned Sessions Judge took note of absence of any evidence to connect the accused with the alleged crime but only on the basis of the circumstantial evidence that accused produced the severed head and the axe in the Police Station and that he did not deny to the questions put in course of his examination under Section 313 Cr.P.C. and that his wearing apparels were stained with human blood of same group as that of the deceased, accused was held guilty and convicted in the above indicated manner. Learned Counsel for the appellant further argues that on perusal of evidence on record no direct or circumstantial evidence is available to prove the charge against the accused beyond all reasonable doubt and under such circumstance the order of conviction is liable to be set aside.</p><p style="text-align: justify;">3. Learned Addl. Standing Counsel, on the other hand, advances argument supporting the impugned order of conviction but unable to put forth any evidence which can substantiate the charge against the accused.</p><p style="text-align: justify;">4. We see on record that neither the witnesses to the occurrence viz. PWs 3 and 7 nor the witness to the extra judicial confession, viz. PWs. 4 and 5 supported the prosecution case. Evidence of P.W. No. 2 that accused made an extra-judicial confession before him at the police station was found to be an afterthought inasmuch as no such statement was recorded by the Investigating Officer. Under such circumstances, the trial Court was constrained to record the findings that direct substantial evidence on the above aspect are nexus so as to substantiate the charge.</p><p style="text-align: justify;">5. Learned Sessions Judge, however, took into consideration the circumstances under which the accused produced the severed head of his wife together with the bloodstained wearing apparels of the deceased and the confirming report, Exts. 10 & 11. As rightly argued by learned Counsel for the appellant, the aforesaid two circumstances jointly or independently are not sufficient to make out a chain of circumstance so as to unfailingly constitute guilty of the accused. We do not find as to why learned Sessions Judge failed to discuss the aforesaid aspect and also failed to appreciate the position of law and accordingly he committed mistake by recording an order of conviction against the accused.</p><p style="text-align: justify;">The evidence recorded by the trial Court is not sufficient to prove the charge under Section 302 IPC. It is the settled principle of law that findings in a criminal case is to be based on clear proof of fact, be it by direct or circumstantial evidence. In this case, there is no such proof and therefore the order of conviction is set aside and the accused is granted the benefit of doubt and accordingly acquitted. If the accused is still in jail custody, he be set at liberty forthwith if his detention is not required in any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casename' => 'Kandru Murmu Vs. State of Orissa',
		'casenote' => ' - 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 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original 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. 
 -  We do not find as to why learned Sessions Judge failed to discuss the aforesaid aspect and also failed to appreciate the position of law and accordingly he committed mistake by recording an order of conviction against the accused.',
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		'court' => 'Orissa',
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		'decidedon' => '2007-06-19',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' P.K. Tripathy and; R.N. Biswal, JJ.',
		'judgement' => '<p style="text-align: justify;">1. Heard and the judgment is as follows:</p><p style="text-align: justify;">Accused faced trial for the offence under Section 302 IPC on the allegation of committing murder of his wife by severing her head on the suspicion of practising witchcraft. The occurrence took place on 29.10.1994. At about 2.30 P.M. on that day accused was found moving towards the police station with the severed head of his wife and a bloodstained axe. On the way he made extra judicial confession before the witnesses and thereafter in the police station deposited the head and the axe. The aforesaid aspect put the Investigating Officer into action and thereafter without probing much he completed the investigation citing few people as witnesses to the occurrence and few to prove extra judicial confession. The seized weapon and' the blood stained wearing apparels of the accused together with the blood stained apparels of the deceased were sent for chemical analysis and the confirming report-Exts. 10 and 11 was received from the Science Laboratory. In course of trial accused took plea of denial and prosecution examined nine witnesses to substantiate the charge against the accused. On assessment of evidence of witnesses, learned Sessions Judge, Mayurbhanj, Baripada delivered the impugned judgment on 25.06.1997 in S.T. Case No. 38 of 1995 recording guilt of the accused for the offence under Section 302 IPC and sentenced him to life imprisonment (wrongly mentioned as rigorous imprisonment for life).</p><p style="text-align: justify;">2. While assailing the order of conviction learned Counsel for the appellant argues that learned Sessions Judge took note of absence of any evidence to connect the accused with the alleged crime but only on the basis of the circumstantial evidence that accused produced the severed head and the axe in the Police Station and that he did not deny to the questions put in course of his examination under Section 313 Cr.P.C. and that his wearing apparels were stained with human blood of same group as that of the deceased, accused was held guilty and convicted in the above indicated manner. Learned Counsel for the appellant further argues that on perusal of evidence on record no direct or circumstantial evidence is available to prove the charge against the accused beyond all reasonable doubt and under such circumstance the order of conviction is liable to be set aside.</p><p style="text-align: justify;">3. Learned Addl. Standing Counsel, on the other hand, advances argument supporting the impugned order of conviction but unable to put forth any evidence which can substantiate the charge against the accused.</p><p style="text-align: justify;">4. We see on record that neither the witnesses to the occurrence viz. PWs 3 and 7 nor the witness to the extra judicial confession, viz. PWs. 4 and 5 supported the prosecution case. Evidence of P.W. No. 2 that accused made an extra-judicial confession before him at the police station was found to be an afterthought inasmuch as no such statement was recorded by the Investigating Officer. Under such circumstances, the trial Court was constrained to record the findings that direct substantial evidence on the above aspect are nexus so as to substantiate the charge.</p><p style="text-align: justify;">5. Learned Sessions Judge, however, took into consideration the circumstances under which the accused produced the severed head of his wife together with the bloodstained wearing apparels of the deceased and the confirming report, Exts. 10 & 11. As rightly argued by learned Counsel for the appellant, the aforesaid two circumstances jointly or independently are not sufficient to make out a chain of circumstance so as to unfailingly constitute guilty of the accused. We do not find as to why learned Sessions Judge failed to discuss the aforesaid aspect and also failed to appreciate the position of law and accordingly he committed mistake by recording an order of conviction against the accused.</p><p style="text-align: justify;">The evidence recorded by the trial Court is not sufficient to prove the charge under Section 302 IPC. It is the settled principle of law that findings in a criminal case is to be based on clear proof of fact, be it by direct or circumstantial evidence. In this case, there is no such proof and therefore the order of conviction is set aside and the accused is granted the benefit of doubt and accordingly acquitted. If the accused is still in jail custody, he be set at liberty forthwith if his detention is not required in any other case.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Section 302 IPC, Section 302 IPC, Section 313 Cr, Section 302 IPC

CARDINAL: 1, 29.10.1994, 10 and 11, nine, 25.06.1997, 38, 3, 7, 4, 2, two

TIME: about 2.30 P.M.

DATE: that day, 1995

ORG: the Science Laboratory, Learned Counsel, Court, Exts, Court

PERSON: Mayurbhanj, Baripada, life).2, Learned Addl, PWs, Counsel

WORK_OF_ART: S.T. Case

GPE: Counsel, P.C.