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ORISSA HIGH COURT
S.K. Sahoo and S.K. Mishra, JJ.
Maxi @ Maximus Soreng – Appellant
versus
State of Odisha – Respondent
Jail Criminal Appeal No.53 of 2005
Decided on 9.1.2024
Counsel for the Parties:
For the Appellant:Mr. Akshaya Kumar Sahoo, Advocate
For the Respondent: Mr. Priyabrata Tripathy, Addl. Standing Counsel
IMPORTANT POINT
As long as someone’s innocence is not completely ruled out by way of established facts and evidence, Court has no option but to be loath to put him behind bars – Suspicion, however grave may be, cannot be a substitute for a proof.
Headnote:
Indian Penal Code, 1860 – Sections 302, 315 and 201 – Criminal Procedure Code, 1973 – Section 482 – Murder of lady and her infant and disappearance of evidence – Life sentence – Circumstantial evidence – Time since death is an important objective of post-mortem examination which connects accused to that particular moment of time to prove his guilt or innocence and plays a vital issue in investigation of medico legal cases – Doctor in this case has not stated on what basis, he determined time of death – Doctor should indicate reasonings for arriving at time of death in post-mortem report – Even though some wearing apparels were seized from well at instance of appellant, prosecution has failed to establish that those were of deceased – Deceased lady and her new born baby were made to meet with extremely painful deaths which shock conscience of Court, but it is still not clear as to who is responsible for such an abominable and ghastly crime – As long as someone’s innocence is not completely ruled out by way of established facts and evidence, Court has no option but to be loath to put him behind bars – Vital links in chain of circumstances are found missing – Suspicion, however grave may be, cannot be a substitute for a proof – Impugned judgment and order of conviction of appellant set aside and appellant acquitted of charges. (Paras 10, 12, 13, )
Result: Jail Criminal Appeal allowed.
JUDGMENT
By the Bench: The appellant Maxi @ Maximus Soreng faced trial in the Court of learned 2nd Adhoc Additional Sessions Judge, Sundargarh in Sessions Trial Case No.255/29 of 1998-04 for commission of offences under sections 302, 315 and 201 of the Indian Penal Code (hereinafter ‘I.P.C.’) on the accusation that on the night of 11.02.1998 at about 9 p.m., in the village Tildega (Dumerguda), he committed murder of Kumudini Dung Dung (hereinafter ‘the deceased’) and her newly born female child and threw the dead bodies of the deceased and her child into a well before the birth of the child with the intention of preventing that child from being born alive and after knowing certain offences have been committed, he caused disappearance of the evidence by tying the dead body of the deceased with stone and threw the same inside a well situated near Dumerguda with the intention of screening himself from legal punishment.
The learned trial Court, vide impugned judgment and order dated 26.02.2005, found the appellant guilty of the offences charged and sentenced him to undergo imprisonment for life under section 302 of the I.P.C., rigorous imprisonment for seven years and to pay fine of Rs.5,000/-, in default to undergo rigorous imprisonment for a further period of six months under section 201 of the I.P.C. and rigorous imprisonment for a period of seven years under section 315 of the I.P.C. and the substantive sentences of imprisonment were directed to run concurrently.
Prosecution Case:
2. The prosecution case, as per the first information report (F.I.R.) lodged by Silsila Dungdung (P.W.3), the mother of the deceased before the Officer in-Charge of Kinjirkela police station on 24.02.1998, is that the appellant was working as a field servant in the house of her co-villager, namely, Jakrias Dungdung and was staying in the house of the latter. During his stay there, the appellant developed illicit relationship with the deceased secretly for which the deceased became pregnant. When her pregnancy was for seven to eight months, her family members came to know about it, for which a caste meeting was held on 08.02.1998. In that meeting, a decision was taken that both the appellant and the deceased should reside together as husband and wife and a faisalanama was executed in that respect. After the decision was taken, both the appellant and the deceased stayed together in the house of the informant (P.W.3) for two to three days. On 11.02.1998, at about 11 a.m., the appellant along with the deceased boarded a bus from Talasara gate to proceed towards Kinjirkela. While leaving her house, the deceased carried some money, sarees, sayas, rice and other articles with her. P.W.3 went to see them off to Talasara gate. It is further stated in the F.I.R. that in the morning hours of 24.02.1998, P.W.3 along with her daughter-in-law went to Kinjirkela, Girjapada, to ascertain the wellbeing of the deceased. While she was in front of the house of one Robert Toppo of Girijapada, she was informed that the dead bodies of a woman and a new born baby were floating inside a well, which is situated in the land of one Uddhab Dandsena of village Dumerguda. On suspicion, the informant proceeded towards the well and the dead body of the woman was brought out of the well with the assistance of people of the locality. The informant identified that woman to be that of the deceased. She further found that stones were tied around the neck and buttock of the deceased and the face and the dead body of a child was found floating, which was also taken out of the well. The informant suspected that after bringing the deceased from her village on 11.02.1998, the appellant killed the deceased so also her child, tied the stones and threw the dead body of the deceased inside the well.
P.W.3 lodged the oral report before P.W.14 Purna Chandra Moharana, the O.I.C. of Kinjirkela Police Station, which was reduced to writing and the same was taken as the F.I.R. Accordingly, Kinjirkela P.S
