The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No. 104 of 2005 Tikepila @ Pravakar Samarth …. Appellant State of Odisha …. Respondent -versus- Advocates appeared in the cases: For Appellant For Respondent : :
Legal Reasoning
Ms. Reena Nayak, Advocate Mr. Janmejaya Katikia Additional Government Advocate CORAM: THE CHIEF JUSTICE JUSTICE G. SATAPATHY JUDGMENT 30.06.2023 Dr. S. Muralidhar, CJ. 1. The present appeal is directed against an judgment dated 27th May, 2005 passed by the Additional Sessions Judge, Jharsuguda in S.T. Case No.17 of 2004 convicting the Appellant of the offence punishable under Section 302 IPC, sentencing him to imprisonment for life and to pay a fine of Rs.2000/- and in default to undergo rigorous imprisonment for six months. 2. It must be noted at the outset that by an order dated 27th October 2011 of this Court, the Appellant was enlarged on bail during the pendency of the present appeal. JCRLA No. 104 of 2005 Page 1 of 7 3. The Appellant has been charged with committing the murder of Lekru, the deceased, who was his elder brother. Dibakar Samarth (P.W.1) is the third brother. The Appellant is the youngest of the three bothers. 4. The case of the prosecution is that on the evening of 3rd July, 2004 at around 8.30 pm while P.W.1 was taking his meal, he heard the Appellant saying that it was not tolerable and so shouting he went to the village lane. After P.W.1 finished his meal, the village committee members i.e. Uttam Negi (P.W.6) and Ujagar Bag informed him that the Appellant had killed Lekru in front of the house of Subash Patra and fled away. While P.W.1 came to the village lane, he noticed his elder brother- Lekru lying dead in front of the house of Subash Patra with a cut bleeding injury on the left side of the chest. The axe of the Appellant was lying near the dead body. P.W.1 ascertained from Lochan Rana (P.W.2), Subash Patra and others that both the brothers i.e. Lekru and the Appellant were quarrelling and the Appellant killed Lekru with his axe. Earlier, the Appellant and Lekru had quarreled many a time. P.W.6 then called up the police and after the police arrived at the spot, the FIR was lodged. 5. An inquest was held over the dead body and the axe, a stick and chapals of the Appellant and the deceased lying at the spot were seized. The dead body was sent for post mortem examination. The sampled earth, blood-stained earth and the wearing apparels of the Appellant and deceased were seized and sent for chemical examination. On competition of the investigation, a charge-sheet JCRLA No. 14 of 2011 Page 2 of 7 was laid against the Appellant for the offence punishable under Section 302 IPC. 6. On behalf of the prosecution, 7 witnesses were examined and no witness was examined on behalf of the accused. 7. The trial Court noted that in the charge-sheet filed Subash Patra was projected as an eye-witness to the incident but when the trial commenced, he was not examined as a witness. Nevertheless, the trial Court proceeded on the basis that the prosecution was seeking to establish the case against the Appellant on the basis of circumstantial evidence. The evidence of Lochan Rana (P.W.2) was relied upon by the prosecution to prove the first of the circumstances, i.e. the Appellant running away from the spot and the deceased lying there with the cut injury on the left side of the chest. Soon after Basudev Rana (P.W.3) and P.W.6 returned, P.W.2 informed them of the occurrence. 8. The next circumstance in the chain of events was P.W.3 and 6 and certain others informing P.W.1 soon after the incident that Lekru had been killed by the Appellant in front of the house of Subash Patra; thereupon P.W.1 running to the spot to find the lathi and axe there. The chapals of both the deceased and the accused were also at the spot. 9. The third incriminating circumstance is that the Appellant himself was not found at the scene of the occurrence at the time when the villagers convened there. After the Appellant went JCRLA No. 104 of 2005 Page 3 of 7 absconding for the whole night he was arrested and brought back by the gramrakhi and a constable the next morning. P.W.2 also confirmed that the Appellant had run away from the spot wearing a lungi (M.O.VII) and a jersey (M.O.VI). 10. The fourth circumstance was the Appellant was unable to explain how the axe belonging to him and his chapals were lying at the spot. The fifth circumstance was that the death was homicidal and this was proved by the medical evidence of Dr. Kishore Chandra Dash (P.W.5), who noticed that there were two cut injuries - one on the left side of the chest and another below the right-side waist. The trial Court also negatived the plea on behalf of the Appellant that the killing took place as a result of grave provocation. It appeared that there was a history of quarrels between the accused and the deceased and just before the incident, the accused was heard uttering that it was intolerable for him. Consequently, this completed the chain of circumstances. As held by the trial Court, each of the above links in the chain of circumstances was satisfactorily proved by the prosecution. 11. Ms. Reena Nayak, learned counsel for the Appellant first submitted that an adverse inference should be drawn against the prosecution for non-examination of Subash Patra, who was originally projected as an eye-witness. 12. As far as this submission is concerned, as rightly noted by the trial Court, if indeed Subash Patra had something to say which would help the case of the Appellant then it was open to the JCRLA No. 14 of 2011 Page 4 of 7 Appellant to summon Subash Patra as a witness on his behalf. However, this was not done. There is nothing to show, therefore, that by not examining Subash Patra as a witness in the trial, the prosecution was withholding evidence that would otherwise be helpful to the Appellant. There is therefore no reason why an adverse inference should be drawn against the prosecution for failing to examine Subash Patra as a witness. 13. It was next submitted by Ms. Nayak that the ownership of the axe as belonging to the Appellant had not been established. Here again, the evidence of P.Ws.1, 2 and 6 have to be carefully examined. Each of them appears to suggest that the murder took place as a result of the Appellant attacking the deceased with his axe. P.W.2 saw him running away from the spot. Each of these witnesses noticed the chapals of both the deceased and the Appellant as well as the axe lying at the spot. No suggestion had been made to any of these witnesses about the axe or the chapals not belonging to the Appellant. Consequently, the Court is unable to find any merit in this contention. 14. It is next submitted that it was a dark night and therefore P.W.2 could not have properly identified the Appellant and that too 5 to 10 minutes after the incident. It is noted here that even as per the evidence of P.W.2 they all belonged to the same village and knew each other well. Therefore, even if were to be assumed that there was no electricity at the relevant point in time, it was not unusual for P.W.2 to be able recognize the Appellant as the person who was found running away from the spot wearing a JCRLA No. 104 of 2005 Page 5 of 7 lungi and banyan (M.Os. VI and VII). P.W. 2 heard the gasping sound of the deceased and that is what drew him to the spot. His evidence seems to be natural. There is nothing elicited from him in his cross-examination that can throw doubt on the veracity of his testimony. P.W.2 was not related to the deceased or the Appellant and no reason to speak falsehood. 15. The Appellant has not able to explain the presence of his chapal at the scene of occurrence. More importantly, he has also not been able to explain how he went away absconding for a whole night when he was present only a few minutes before the murder having had a meal with P.W.1. At a time when his brother’s dead body was lying in a bleeding condition, he was not around. He owed an explanation how he did not return till the following morning. 16. The medical evidence fully established that the death was homicidal and that the cut injuries on the body could have been cause by the axe that was recovered from near the body. It was a night when there were rains and, therefore, the absence of blood stains on the axe sent for chemical examination was not unnatural. 17. Having carefully examined the entire evidence with the assistance of learned counsel for both the parties, the Court is of the view that every one of the circumstances that forms a continuous chain has been satisfactorily proved by the prosecution. Taken together, the circumstances unerringly point to the guilt of the Appellant and to no one else. JCRLA No. 14 of 2011 Page 6 of 7 18. Consequently, the Court is unable to find any ground to interfere with the impugned judgment and order of the trial Court. The appeal is accordingly dismissed. 19. The bail bonds of the Appellant are cancelled and he is directed to surrender forthwith and, in any event, not later than 1st August, 2023 failing which the IIC of the concerned P.S. will take steps to take him into custody to serve out the remainder of his sentence. A copy of this judgment be sent by the Registry to the IIC of the concerned P.S. forthwith. (S. Muralidhar) Chief Justice (G. Satapathy) Judge M. Panda Signature Not Verified Digitally Signed Signed by: MRUTYUNJAYA PANDA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Jun-2023 14:10:56 JCRLA No. 104 of 2005 Page 7 of 7