Niranjan Konhar and anr. Vs. State of Orissa

Decided On : Dec-10-2009

Court : Orissa

Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]
Code Context


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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. 
 -  2. The case of the prosecution is that on 22.03.1998 at about 3.00 PM both the appellants and one Birendra Konhar dealt slaps as well as fist and kick blows to the deceased Rajeswar Konhar at Manindi hills as a result of which the deceased became unconscious. has been defeated in the instant case because the questions put to the appellants do not cover all the circumstances appearing against them and thereby them have been deprived of explaining those circumstances. 2, the sole ocular witness, is unreliable on the ground, that she being related to the deceased as his wife's sister is an interested witness, that her evidence suffers from material contradictions, that she has tried to develop the case in court, and that she was examined by the police 15 days after the occurrence and till then she had not disclosed about the participation of the appellants in the alleged crime to anybody else;',
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			'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. This appeal is directed against the judgment and order dated 29.09.1999 passed by the learned Sessions Judge, Kandhamal-Boudh at Phulbani in ST. No. 61 of 1998 convicting the appellants under Section 302 of the Indian Penal Code read with Section 34 of the Code and sentencing them to undergo imprisonment for life.</p><p style="text-align: justify;">2. The case of the prosecution is that on 22.03.1998 at about 3.00 PM both the appellants and one Birendra Konhar dealt slaps as well as fist and kick blows to the deceased Rajeswar Konhar at Manindi hills as a result of which the deceased became unconscious. It is further alleged that at about 5.00 PM again appellant No. 1 Niranjan Konhar with the help of appellant No. 2 Bibachha Konhar assaulted the deceased by means of a tangia (axe). Due to such assault the deceased sustained severe injuries on his neck and died at the spot. Thereafter, the accused persons removed the dead-body from the spot and kept it concealed near a SALAPA tree. On the next day, i.e., 23.03.1998 at about 11 AM the wife of the deceased, namely, Tilottama Konhar lodged written report before Khajuripada police station. On receipt of such information, a case was registered, investigation commenced and after its closure charge-sheet was filed against the appellants and one Birendra Konhar under Section 302/34, IPC.</p><p style="text-align: justify;">3. The accused persons denied the charge and pleaded that the case was falsely foisted against them.</p><p style="text-align: justify;">4. In order to prove its case, the prosecution examined as many as eight witnesses including the doctors and the I.O. The defence examined none.</p><p style="text-align: justify;">5. The learned Sessions Judge after conclusion of the trial convicted and sentenced the appellants as mentioned hereinbefore and acquitted accused Birendra Konhar of the charge with the finding that the prosecution has proved beyond all reasonable doubt that the appellants committed murder of the deceased while he was lying injured and that there is absolutely no evidence about participation of accused Birendra Konhar in the crime.</p><p style="text-align: justify;">6. Mr. Pani, learned Counsel appearing for the appellants assails the impugned judgment on the following grounds:</p><p style="text-align: justify;">(i) the object of examination of the accused persons under Section 313 Cr.P.C. has been defeated in the instant case because the questions put to the appellants do not cover all the circumstances appearing against them and thereby them have been deprived of explaining those circumstances.</p><p style="text-align: justify;">(ii) the evidence of P.W.2, the sole ocular witness, is unreliable on the ground, that she being related to the deceased as his wife's sister is an interested witness, that her evidence suffers from material contradictions, that she has tried to develop the case in court, and that she was examined by the police 15 days after the occurrence and till then she had not disclosed about the participation of the appellants in the alleged crime to anybody else;</p><p style="text-align: justify;">(iii) no independent witness has been examined by the prosecution, although it is the case of the prosecution that a number persons were available at the time of alleged occurrence; and</p><p style="text-align: justify;">(iv) the prosecution has not explained the injuries on the person of the accused who were examined on police requisition.</p><p style="text-align: justify;">7. Miss. Mishra, learned Additional Standing Counsel vehemently contends that the evidence of P.W.2, who is an ocular witness, is very clear and cogent and gets corroboration from P.W.1, the FIR and the injury report. The injuries on the persons of the accused were explained by the prosecution which is evident from the evidence of P.W.3 who has categorically deposed that ail the accused persons and the deceased took SALAPA and caught hold of and assaulted each other by rolling on the ground. Appellant No. 1 led the police and gave recovery of tangia (axe), the weapon of offence, which was seized by the police and proved by P.W.4 in Court. The nail clippings of both the appellants which were examined at the Forensic Science Laboratory were found to have contained human blood. Therefore, there is no ground to interfere with the impugned judgment.</p><p style="text-align: justify;">8. Perused the LCR, more particularly the statement of the accused persons recorded under Section 313 Cr.P.C. and the decision of the apex Court in Ajay Singh v. State of Maharashtra (2007) 37 OCR (SC) 872. In the said decision, the Supreme Court has ruled that it is not sufficient compliance to string together a long series of facts and ask the accused what he has got to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questioning must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.</p><p style="text-align: justify;">9. Keeping the above ratio in view, this Court examined the statement of the appellants recorded by the trial court under Section 313 Cr.P.C. The trial court has put the following questions to each of the appellants:</p><p style="text-align: justify;">(1) It transpires from the evidence of the P.Ws. and the materials on record that on 22.3.98 at about 5 P.M. you committed the murder of the deceased Rajeswar Konhar. What have you got to say ?</p><p style="text-align: justify;">(2) It transpires from the evidence of P.W.4 that while you were in police custody you had stated before the police that you had concealed the weapon of offence such as an axe under the SALAPA tree near the spot and so saying led the police and gave recovery of the axe which was seized under Ext.3. What have you got to say?</p><p style="text-align: justify;">(3) Do you want to say anything in this case?</p><p style="text-align: justify;">From the aforesaid, it is found that no separate question has been put to the accused persons about each material substance which is intended to be used against them. These two accused persons are illiterate and rustic adivasis. It is difficult to believe that they would have been able to understand the questions put to them. For the above reason along, this Court is of the view that the impugned judgment and order of conviction passed by he trial court cannot be sustained. It is a fit case for remand to the trial court, which should record the statement of the accused persons under Section 313 Cr.P.C. by putting separate question for each material substance and thereafter dispose of the matter afresh in accordance with law. Needless to mention that in view of the above lacuna on the part of the trial court, we have not examined the ocular evidence and other materials on record.</p><p style="text-align: justify;">10. In the result, the impugned judgment of conviction and sentence passed against the appellants is set aside and the matter is remitted back to the trial court for recording of the statement of the accused persons under Section 313 Cr.P.C. afresh in the light of the observation made above. This Court directs the trial court to complete the trial within three months from the date of receipt of this order along with LCR which shall be sent back forthwith. It is open to the appellants to move for bail before the trial court and in such event the trial court shall admit the appellants to bail till conclusion of the trial.</p><p style="text-align: justify;">11. The Jail Criminal Appeal is accordingly disposed of. </p><p style="text-align: justify;">B.K. Patel, J.</p><p style="text-align: justify;">12. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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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. 
 -  2. The case of the prosecution is that on 22.03.1998 at about 3.00 PM both the appellants and one Birendra Konhar dealt slaps as well as fist and kick blows to the deceased Rajeswar Konhar at Manindi hills as a result of which the deceased became unconscious. has been defeated in the instant case because the questions put to the appellants do not cover all the circumstances appearing against them and thereby them have been deprived of explaining those circumstances. 2, the sole ocular witness, is unreliable on the ground, that she being related to the deceased as his wife's sister is an interested witness, that her evidence suffers from material contradictions, that she has tried to develop the case in court, and that she was examined by the police 15 days after the occurrence and till then she had not disclosed about the participation of the appellants in the alleged crime to anybody else;',
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		'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. This appeal is directed against the judgment and order dated 29.09.1999 passed by the learned Sessions Judge, Kandhamal-Boudh at Phulbani in ST. No. 61 of 1998 convicting the appellants under Section 302 of the Indian Penal Code read with Section 34 of the Code and sentencing them to undergo imprisonment for life.</p><p style="text-align: justify;">2. The case of the prosecution is that on 22.03.1998 at about 3.00 PM both the appellants and one Birendra Konhar dealt slaps as well as fist and kick blows to the deceased Rajeswar Konhar at Manindi hills as a result of which the deceased became unconscious. It is further alleged that at about 5.00 PM again appellant No. 1 Niranjan Konhar with the help of appellant No. 2 Bibachha Konhar assaulted the deceased by means of a tangia (axe). Due to such assault the deceased sustained severe injuries on his neck and died at the spot. Thereafter, the accused persons removed the dead-body from the spot and kept it concealed near a SALAPA tree. On the next day, i.e., 23.03.1998 at about 11 AM the wife of the deceased, namely, Tilottama Konhar lodged written report before Khajuripada police station. On receipt of such information, a case was registered, investigation commenced and after its closure charge-sheet was filed against the appellants and one Birendra Konhar under Section 302/34, IPC.</p><p style="text-align: justify;">3. The accused persons denied the charge and pleaded that the case was falsely foisted against them.</p><p style="text-align: justify;">4. In order to prove its case, the prosecution examined as many as eight witnesses including the doctors and the I.O. The defence examined none.</p><p style="text-align: justify;">5. The learned Sessions Judge after conclusion of the trial convicted and sentenced the appellants as mentioned hereinbefore and acquitted accused Birendra Konhar of the charge with the finding that the prosecution has proved beyond all reasonable doubt that the appellants committed murder of the deceased while he was lying injured and that there is absolutely no evidence about participation of accused Birendra Konhar in the crime.</p><p style="text-align: justify;">6. Mr. Pani, learned Counsel appearing for the appellants assails the impugned judgment on the following grounds:</p><p style="text-align: justify;">(i) the object of examination of the accused persons under Section 313 Cr.P.C. has been defeated in the instant case because the questions put to the appellants do not cover all the circumstances appearing against them and thereby them have been deprived of explaining those circumstances.</p><p style="text-align: justify;">(ii) the evidence of P.W.2, the sole ocular witness, is unreliable on the ground, that she being related to the deceased as his wife's sister is an interested witness, that her evidence suffers from material contradictions, that she has tried to develop the case in court, and that she was examined by the police 15 days after the occurrence and till then she had not disclosed about the participation of the appellants in the alleged crime to anybody else;</p><p style="text-align: justify;">(iii) no independent witness has been examined by the prosecution, although it is the case of the prosecution that a number persons were available at the time of alleged occurrence; and</p><p style="text-align: justify;">(iv) the prosecution has not explained the injuries on the person of the accused who were examined on police requisition.</p><p style="text-align: justify;">7. Miss. Mishra, learned Additional Standing Counsel vehemently contends that the evidence of P.W.2, who is an ocular witness, is very clear and cogent and gets corroboration from P.W.1, the FIR and the injury report. The injuries on the persons of the accused were explained by the prosecution which is evident from the evidence of P.W.3 who has categorically deposed that ail the accused persons and the deceased took SALAPA and caught hold of and assaulted each other by rolling on the ground. Appellant No. 1 led the police and gave recovery of tangia (axe), the weapon of offence, which was seized by the police and proved by P.W.4 in Court. The nail clippings of both the appellants which were examined at the Forensic Science Laboratory were found to have contained human blood. Therefore, there is no ground to interfere with the impugned judgment.</p><p style="text-align: justify;">8. Perused the LCR, more particularly the statement of the accused persons recorded under Section 313 Cr.P.C. and the decision of the apex Court in Ajay Singh v. State of Maharashtra (2007) 37 OCR (SC) 872. In the said decision, the Supreme Court has ruled that it is not sufficient compliance to string together a long series of facts and ask the accused what he has got to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questioning must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.</p><p style="text-align: justify;">9. Keeping the above ratio in view, this Court examined the statement of the appellants recorded by the trial court under Section 313 Cr.P.C. The trial court has put the following questions to each of the appellants:</p><p style="text-align: justify;">(1) It transpires from the evidence of the P.Ws. and the materials on record that on 22.3.98 at about 5 P.M. you committed the murder of the deceased Rajeswar Konhar. What have you got to say ?</p><p style="text-align: justify;">(2) It transpires from the evidence of P.W.4 that while you were in police custody you had stated before the police that you had concealed the weapon of offence such as an axe under the SALAPA tree near the spot and so saying led the police and gave recovery of the axe which was seized under Ext.3. What have you got to say?</p><p style="text-align: justify;">(3) Do you want to say anything in this case?</p><p style="text-align: justify;">From the aforesaid, it is found that no separate question has been put to the accused persons about each material substance which is intended to be used against them. These two accused persons are illiterate and rustic adivasis. It is difficult to believe that they would have been able to understand the questions put to them. For the above reason along, this Court is of the view that the impugned judgment and order of conviction passed by he trial court cannot be sustained. It is a fit case for remand to the trial court, which should record the statement of the accused persons under Section 313 Cr.P.C. by putting separate question for each material substance and thereafter dispose of the matter afresh in accordance with law. Needless to mention that in view of the above lacuna on the part of the trial court, we have not examined the ocular evidence and other materials on record.</p><p style="text-align: justify;">10. In the result, the impugned judgment of conviction and sentence passed against the appellants is set aside and the matter is remitted back to the trial court for recording of the statement of the accused persons under Section 313 Cr.P.C. afresh in the light of the observation made above. This Court directs the trial court to complete the trial within three months from the date of receipt of this order along with LCR which shall be sent back forthwith. It is open to the appellants to move for bail before the trial court and in such event the trial court shall admit the appellants to bail till conclusion of the trial.</p><p style="text-align: justify;">11. The Jail Criminal Appeal is accordingly disposed of. </p><p style="text-align: justify;">B.K. Patel, J.</p><p style="text-align: justify;">12. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'casename' => 'Niranjan Konhar and anr. 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. 
 -  2. The case of the prosecution is that on 22.03.1998 at about 3.00 PM both the appellants and one Birendra Konhar dealt slaps as well as fist and kick blows to the deceased Rajeswar Konhar at Manindi hills as a result of which the deceased became unconscious. has been defeated in the instant case because the questions put to the appellants do not cover all the circumstances appearing against them and thereby them have been deprived of explaining those circumstances. 2, the sole ocular witness, is unreliable on the ground, that she being related to the deceased as his wife's sister is an interested witness, that her evidence suffers from material contradictions, that she has tried to develop the case in court, and that she was examined by the police 15 days after the occurrence and till then she had not disclosed about the participation of the appellants in the alleged crime to anybody else;',
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			'casesref' => 'Ajay Singh v. State of Maharashtra;',
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			'court' => 'Orissa',
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			'decidedon' => '2009-12-10',
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			'judge' => ' Pradip Mohanty and; B.K. Patel, JJ.',
			'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. This appeal is directed against the judgment and order dated 29.09.1999 passed by the learned Sessions Judge, Kandhamal-Boudh at Phulbani in ST. No. 61 of 1998 convicting the appellants under Section 302 of the Indian Penal Code read with Section 34 of the Code and sentencing them to undergo imprisonment for life.</p><p style="text-align: justify;">2. The case of the prosecution is that on 22.03.1998 at about 3.00 PM both the appellants and one Birendra Konhar dealt slaps as well as fist and kick blows to the deceased Rajeswar Konhar at Manindi hills as a result of which the deceased became unconscious. It is further alleged that at about 5.00 PM again appellant No. 1 Niranjan Konhar with the help of appellant No. 2 Bibachha Konhar assaulted the deceased by means of a tangia (axe). Due to such assault the deceased sustained severe injuries on his neck and died at the spot. Thereafter, the accused persons removed the dead-body from the spot and kept it concealed near a SALAPA tree. On the next day, i.e., 23.03.1998 at about 11 AM the wife of the deceased, namely, Tilottama Konhar lodged written report before Khajuripada police station. On receipt of such information, a case was registered, investigation commenced and after its closure charge-sheet was filed against the appellants and one Birendra Konhar under Section 302/34, IPC.</p><p style="text-align: justify;">3. The accused persons denied the charge and pleaded that the case was falsely foisted against them.</p><p style="text-align: justify;">4. In order to prove its case, the prosecution examined as many as eight witnesses including the doctors and the I.O. The defence examined none.</p><p style="text-align: justify;">5. The learned Sessions Judge after conclusion of the trial convicted and sentenced the appellants as mentioned hereinbefore and acquitted accused Birendra Konhar of the charge with the finding that the prosecution has proved beyond all reasonable doubt that the appellants committed murder of the deceased while he was lying injured and that there is absolutely no evidence about participation of accused Birendra Konhar in the crime.</p><p style="text-align: justify;">6. Mr. Pani, learned Counsel appearing for the appellants assails the impugned judgment on the following grounds:</p><p style="text-align: justify;">(i) the object of examination of the accused persons under Section 313 Cr.P.C. has been defeated in the instant case because the questions put to the appellants do not cover all the circumstances appearing against them and thereby them have been deprived of explaining those circumstances.</p><p style="text-align: justify;">(ii) the evidence of P.W.2, the sole ocular witness, is unreliable on the ground, that she being related to the deceased as his wife's sister is an interested witness, that her evidence suffers from material contradictions, that she has tried to develop the case in court, and that she was examined by the police 15 days after the occurrence and till then she had not disclosed about the participation of the appellants in the alleged crime to anybody else;</p><p style="text-align: justify;">(iii) no independent witness has been examined by the prosecution, although it is the case of the prosecution that a number persons were available at the time of alleged occurrence; and</p><p style="text-align: justify;">(iv) the prosecution has not explained the injuries on the person of the accused who were examined on police requisition.</p><p style="text-align: justify;">7. Miss. Mishra, learned Additional Standing Counsel vehemently contends that the evidence of P.W.2, who is an ocular witness, is very clear and cogent and gets corroboration from P.W.1, the FIR and the injury report. The injuries on the persons of the accused were explained by the prosecution which is evident from the evidence of P.W.3 who has categorically deposed that ail the accused persons and the deceased took SALAPA and caught hold of and assaulted each other by rolling on the ground. Appellant No. 1 led the police and gave recovery of tangia (axe), the weapon of offence, which was seized by the police and proved by P.W.4 in Court. The nail clippings of both the appellants which were examined at the Forensic Science Laboratory were found to have contained human blood. Therefore, there is no ground to interfere with the impugned judgment.</p><p style="text-align: justify;">8. Perused the LCR, more particularly the statement of the accused persons recorded under Section 313 Cr.P.C. and the decision of the apex Court in Ajay Singh v. State of Maharashtra (2007) 37 OCR (SC) 872. In the said decision, the Supreme Court has ruled that it is not sufficient compliance to string together a long series of facts and ask the accused what he has got to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questioning must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.</p><p style="text-align: justify;">9. Keeping the above ratio in view, this Court examined the statement of the appellants recorded by the trial court under Section 313 Cr.P.C. The trial court has put the following questions to each of the appellants:</p><p style="text-align: justify;">(1) It transpires from the evidence of the P.Ws. and the materials on record that on 22.3.98 at about 5 P.M. you committed the murder of the deceased Rajeswar Konhar. What have you got to say ?</p><p style="text-align: justify;">(2) It transpires from the evidence of P.W.4 that while you were in police custody you had stated before the police that you had concealed the weapon of offence such as an axe under the SALAPA tree near the spot and so saying led the police and gave recovery of the axe which was seized under Ext.3. What have you got to say?</p><p style="text-align: justify;">(3) Do you want to say anything in this case?</p><p style="text-align: justify;">From the aforesaid, it is found that no separate question has been put to the accused persons about each material substance which is intended to be used against them. These two accused persons are illiterate and rustic adivasis. It is difficult to believe that they would have been able to understand the questions put to them. For the above reason along, this Court is of the view that the impugned judgment and order of conviction passed by he trial court cannot be sustained. It is a fit case for remand to the trial court, which should record the statement of the accused persons under Section 313 Cr.P.C. by putting separate question for each material substance and thereafter dispose of the matter afresh in accordance with law. Needless to mention that in view of the above lacuna on the part of the trial court, we have not examined the ocular evidence and other materials on record.</p><p style="text-align: justify;">10. In the result, the impugned judgment of conviction and sentence passed against the appellants is set aside and the matter is remitted back to the trial court for recording of the statement of the accused persons under Section 313 Cr.P.C. afresh in the light of the observation made above. This Court directs the trial court to complete the trial within three months from the date of receipt of this order along with LCR which shall be sent back forthwith. It is open to the appellants to move for bail before the trial court and in such event the trial court shall admit the appellants to bail till conclusion of the trial.</p><p style="text-align: justify;">11. The Jail Criminal Appeal is accordingly disposed of. </p><p style="text-align: justify;">B.K. Patel, J.</p><p style="text-align: justify;">12. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casename' => 'Niranjan Konhar and anr. 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. 
 -  2. The case of the prosecution is that on 22.03.1998 at about 3.00 PM both the appellants and one Birendra Konhar dealt slaps as well as fist and kick blows to the deceased Rajeswar Konhar at Manindi hills as a result of which the deceased became unconscious. has been defeated in the instant case because the questions put to the appellants do not cover all the circumstances appearing against them and thereby them have been deprived of explaining those circumstances. 2, the sole ocular witness, is unreliable on the ground, that she being related to the deceased as his wife's sister is an interested witness, that her evidence suffers from material contradictions, that she has tried to develop the case in court, and that she was examined by the police 15 days after the occurrence and till then she had not disclosed about the participation of the appellants in the alleged crime to anybody else;',
		'caseanalysis' => null,
		'casesref' => 'Ajay Singh v. State of Maharashtra;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2009-12-10',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Pradip Mohanty and; B.K. Patel, JJ.',
		'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. This appeal is directed against the judgment and order dated 29.09.1999 passed by the learned Sessions Judge, Kandhamal-Boudh at Phulbani in ST. No. 61 of 1998 convicting the appellants under Section 302 of the Indian Penal Code read with Section 34 of the Code and sentencing them to undergo imprisonment for life.</p><p style="text-align: justify;">2. The case of the prosecution is that on 22.03.1998 at about 3.00 PM both the appellants and one Birendra Konhar dealt slaps as well as fist and kick blows to the deceased Rajeswar Konhar at Manindi hills as a result of which the deceased became unconscious. It is further alleged that at about 5.00 PM again appellant No. 1 Niranjan Konhar with the help of appellant No. 2 Bibachha Konhar assaulted the deceased by means of a tangia (axe). Due to such assault the deceased sustained severe injuries on his neck and died at the spot. Thereafter, the accused persons removed the dead-body from the spot and kept it concealed near a SALAPA tree. On the next day, i.e., 23.03.1998 at about 11 AM the wife of the deceased, namely, Tilottama Konhar lodged written report before Khajuripada police station. On receipt of such information, a case was registered, investigation commenced and after its closure charge-sheet was filed against the appellants and one Birendra Konhar under Section 302/34, IPC.</p><p style="text-align: justify;">3. The accused persons denied the charge and pleaded that the case was falsely foisted against them.</p><p style="text-align: justify;">4. In order to prove its case, the prosecution examined as many as eight witnesses including the doctors and the I.O. The defence examined none.</p><p style="text-align: justify;">5. The learned Sessions Judge after conclusion of the trial convicted and sentenced the appellants as mentioned hereinbefore and acquitted accused Birendra Konhar of the charge with the finding that the prosecution has proved beyond all reasonable doubt that the appellants committed murder of the deceased while he was lying injured and that there is absolutely no evidence about participation of accused Birendra Konhar in the crime.</p><p style="text-align: justify;">6. Mr. Pani, learned Counsel appearing for the appellants assails the impugned judgment on the following grounds:</p><p style="text-align: justify;">(i) the object of examination of the accused persons under Section 313 Cr.P.C. has been defeated in the instant case because the questions put to the appellants do not cover all the circumstances appearing against them and thereby them have been deprived of explaining those circumstances.</p><p style="text-align: justify;">(ii) the evidence of P.W.2, the sole ocular witness, is unreliable on the ground, that she being related to the deceased as his wife's sister is an interested witness, that her evidence suffers from material contradictions, that she has tried to develop the case in court, and that she was examined by the police 15 days after the occurrence and till then she had not disclosed about the participation of the appellants in the alleged crime to anybody else;</p><p style="text-align: justify;">(iii) no independent witness has been examined by the prosecution, although it is the case of the prosecution that a number persons were available at the time of alleged occurrence; and</p><p style="text-align: justify;">(iv) the prosecution has not explained the injuries on the person of the accused who were examined on police requisition.</p><p style="text-align: justify;">7. Miss. Mishra, learned Additional Standing Counsel vehemently contends that the evidence of P.W.2, who is an ocular witness, is very clear and cogent and gets corroboration from P.W.1, the FIR and the injury report. The injuries on the persons of the accused were explained by the prosecution which is evident from the evidence of P.W.3 who has categorically deposed that ail the accused persons and the deceased took SALAPA and caught hold of and assaulted each other by rolling on the ground. Appellant No. 1 led the police and gave recovery of tangia (axe), the weapon of offence, which was seized by the police and proved by P.W.4 in Court. The nail clippings of both the appellants which were examined at the Forensic Science Laboratory were found to have contained human blood. Therefore, there is no ground to interfere with the impugned judgment.</p><p style="text-align: justify;">8. Perused the LCR, more particularly the statement of the accused persons recorded under Section 313 Cr.P.C. and the decision of the apex Court in Ajay Singh v. State of Maharashtra (2007) 37 OCR (SC) 872. In the said decision, the Supreme Court has ruled that it is not sufficient compliance to string together a long series of facts and ask the accused what he has got to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questioning must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.</p><p style="text-align: justify;">9. Keeping the above ratio in view, this Court examined the statement of the appellants recorded by the trial court under Section 313 Cr.P.C. The trial court has put the following questions to each of the appellants:</p><p style="text-align: justify;">(1) It transpires from the evidence of the P.Ws. and the materials on record that on 22.3.98 at about 5 P.M. you committed the murder of the deceased Rajeswar Konhar. What have you got to say ?</p><p style="text-align: justify;">(2) It transpires from the evidence of P.W.4 that while you were in police custody you had stated before the police that you had concealed the weapon of offence such as an axe under the SALAPA tree near the spot and so saying led the police and gave recovery of the axe which was seized under Ext.3. What have you got to say?</p><p style="text-align: justify;">(3) Do you want to say anything in this case?</p><p style="text-align: justify;">From the aforesaid, it is found that no separate question has been put to the accused persons about each material substance which is intended to be used against them. These two accused persons are illiterate and rustic adivasis. It is difficult to believe that they would have been able to understand the questions put to them. For the above reason along, this Court is of the view that the impugned judgment and order of conviction passed by he trial court cannot be sustained. It is a fit case for remand to the trial court, which should record the statement of the accused persons under Section 313 Cr.P.C. by putting separate question for each material substance and thereafter dispose of the matter afresh in accordance with law. Needless to mention that in view of the above lacuna on the part of the trial court, we have not examined the ocular evidence and other materials on record.</p><p style="text-align: justify;">10. In the result, the impugned judgment of conviction and sentence passed against the appellants is set aside and the matter is remitted back to the trial court for recording of the statement of the accused persons under Section 313 Cr.P.C. afresh in the light of the observation made above. This Court directs the trial court to complete the trial within three months from the date of receipt of this order along with LCR which shall be sent back forthwith. It is open to the appellants to move for bail before the trial court and in such event the trial court shall admit the appellants to bail till conclusion of the trial.</p><p style="text-align: justify;">11. The Jail Criminal Appeal is accordingly disposed of. </p><p style="text-align: justify;">B.K. Patel, J.</p><p style="text-align: justify;">12. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'pubs' => '2010(I)OLR245',
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		'respondent' => 'State of Orissa',
		'sub' => 'Criminal',
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		'circuit' => null
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LAW: Section 302, the Indian Penal Code, Section 34 of the Code, Section 313 Cr, Section 313 Cr, Section 313 Cr, Section 313 Cr, Section 313 Cr

NORP: J.1, SALAPA, SALAPA, P.Ws, SALAPA

CARDINAL: 29.09.1999, 61, one, 1, 2, one, as many as eight, 1, 37, 872, 22.3.98, 2, two

ORG: Kandhamal-Boudh, Birendra Konhar, Rajeswar Konhar, Tilottama Konhar, Birendra Konhar, I.O., Additional Standing Counsel, FIR, Court, the Forensic Science Laboratory, LCR, OCR, SC, the Supreme Court, Court, Rajeswar Konhar, Court, Court, LCR, The Jail Criminal Appeal

GPE: ST, Manindi, P.C., Miss., P.C., P.C., P.C., J.12

DATE: 1998, 22.03.1998, the next day, 23.03.1998, 15 days, 2007, three months

TIME: about 3.00 PM, about 11 AM

PERSON: Khajuripada, Birendra Konhar, Birendra Konhar, Pani, and(iv, Ajay Singh v. State of, B.K. Patel

PRODUCT: Ext.3