The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Naba Behera and another (In JCRLA No.39 of 2005) …. Appellants State of Orissa Dillip Kumar Das (In CRLA No.346 of 2004) State of Orissa -versus- -versus- …. …. …. Respondent Appellant Respondent Advocates appeared in the cases: For Appellant(s) For Respondent : : Mrs. Sujata Jena, Advocate Mr. Janmejaya Katikia, Additional Government Advocate CORAM: THE CHIEF JUSTICE JUSTICE G. SATAPATHY JUDGMENT 06.07.2023 G. Satapathy, J. 1. The convicts in S.T. Case No.34/13/135 of 2003/2002 and S.T. Case No.11/157 of 2003 herein are in appeal against the common judgment of conviction and order of sentence passed on 21.09.2004 by learned Adhoc Additional Sessions Judge, First Track, Khurda convicting the Appellants for offences punishable under Sections 302/34 of IPC and sentencing each of three Appellants to undergo imprisonment for life and to pay a fine of JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 1 of 16 Rs.5,000/- in default whereof to undergo Rigorous Imprisonment for three months. 2. It requires to be noted that both the appeals involving three convicts having arisen out of a common judgment in two Sessions trials for the murder of one Chaitanya Hota, are heard simultaneously and disposed of by this common judgment with
Legal Reasoning
the consent of the learned counsel for the parties, who are same in both the appeals. By separate orders of this Court, Appellant No.1 Naba Behera & Appellant No.2 Shanti Behera in JCrlA No. 39 of 2005 and Appellant Dillip Kumar Das in CRLA 346 of 2004 were enlarged on bail during the pendency of the appeals. 3. The prosecution case in brief is on 17.08.2001 at about 10 a.m., the father of the deceased received information from his co- villager Jatia,S/O Baidhar Panda that Naba Behera, Dillip Das and Shantilata Behera, W/O Naba Behera (hereinafter referred to as ‘convicts’) had assaulted his elder son Chaitanya Hota (hereinafter referred to as ‘deceased’) by means of ‘lathies’ and ‘Farsa’ and murdered him. On receipt of such information, Lachhman Hota rushed to the spot along with his younger son Pratap Hota and thereafter, found the dead body of the deceased lying on the Danda (verandah) of his house with cut injuries on his left leg, right leg, left elbow and on the back side of his head as well as bleeding injuries on his body. On this incident, Lachhman Hota lodged an FIR before the OIC, Bolagarh P.S., who registered P.S. Case No.75 of 2001 and took up investigation, in the course of which he examined the witnesses, visited the spot, seized blood stained earth and sample earth. He further seized two bamboo lathis from the spot and conducted inquest over the dead body of JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 2 of 16 the deceased and got the autopsy done over the dead body of the deceased at DHH, Khurda. On 18.08.2001 at about 5 p.m., the I.O. also apprehended the convicts Dillip Das and Naba Behera in the market at Rajsunakhala and thereafter, recorded their disclosure statements of convicts, whereafter, convict Naba Behera gave recovery of one polyester check lungi stained with blood at different places and one green colour napkin stained with blood, from inside the heap of straw kept on the back side of bari (backward) of his house in presence of witnesses, which were seized by the IO and thereafter, convict Dillip Das gave recovery of the weapon of offence “Farsa” having 16 & ½” blade with a bamboo handle, one sporting banyan of light blue colour, one striped napkin and one striped lungi from the eastern side of heap of the straw in presence of witnesses pursuant to his disclosure statement which were seized by the IO. On receipt of post mortem report, the IO by sending the weapons of offence i.e. such as ‘Farsa’ made query to the Doctor, who submitted his report affirmatively stating therein that the incised wounds can be caused by Farsa and such injuries can lead to death. On conclusion of investigation, the I.O. submitted charge-sheet against the accused Dillip Kumar Dash and Naba Behera for offence punishable U/Ss. 302/34 of IPC by showing convict Shanti Behera as an absconder, but she was apprehended later on and the case against her was committed to the Court of Sessions subsequently and she faced trial in a separate case in S.T. Case No. 11/157 of 2003. 4. Of these two Sessions cases, the trial against convict Dillip Kumar Dash and Naba Behera in S.T. Case No. 34/13/135 of 2003/2002 (hereinafter referred to as ‘former case’) commenced JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 3 of 16 earlier than the trial against convict Shanti Behera in S.T. Case No. 11/157 of 2003 (hereinafter referred to as ‘later case’). 5. In substantiation of its case, the prosecution examined 24 nos. of witnesses in former case and 23 nos. of witnesses in later case, but most of the witnesses were common and examined in both the cases with different PW nos. Be it noted, the Informant-cum-PW 1 in former case could not be examined in the later case because of his death. Further, PW 2 Janaki Hota and PW 18 Arjun Hota in former case were not examined in later case, whereas PW 1 Shantilata Hota and PW 11 Jagannath @ Nikhilesh Panda were examined for the first time in later case. Out of the witnesses examined in both the cases, Satyabhama Panda, Sabita Panda and child witness Susanta Kumar Hota were projected as eye witnesses and examined as PW5/PW8, PW19/PW9 and PW24/PW2 in former/later case respectively. In the same fashion Bharat Hota was examined as a witness to an oral dying declaration of the deceased as PW 9 in former case and as a eye witness as PW 7 in later case. Wahid Khan and Musa @ Wohid Khan were examined to prove the disclosure statement of both the accused as (PW 14/ PW 17) and (PW 17/ PW 20) in former and later case respectively. Similarly, in both the cases a number of documents have been exhibited and the weapon of offence i.e. two ‘lathis’ were identified as MO-I and II, whereas the other weapon offence ‘Farsa’ was identified as MO-III/IV in former/later case and the chemical examination report was marked as Ext. 20 in both the cases, whereas FIR was marked as Ext. 1/Ext. 8 in former/later case and the Postmortem Report & Opinion of the Doctor to the query of the I.O. were marked as Ext. 19 &17/1 in JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 4 of 16 both the cases. Similarly, the disclosure statements of the accused persons were marked as Exts. 4 & 5 and Exts.4 & 12. 6. The plea of defence in both the cases was one of complete denial and false implication. Further, no witness was examined by the defence in any of the two cases. 7. A careful perusal of the impugned judgment passed in both the cases, it appears that the learned trial Court had convicted the appellants mainly relying upon the direct evidence of Bharat Hota (PW9/PW7), Satyabhama Panda (PW5/PW8), Sabita Panda (PW19/PW9) and the child witness Susant Kumar Hota (PW24/PW2). Admittedly, these four witnesses whose evidence was relied upon by the prosecution had more or less stated alike against the convicts-appellants with regard to main substratum of evidence in both the cases. Firstly, on coming to scrutinize the testimony of the child witness Susant Kumar Hota (PW24/PW2), it transpires that while he and his deceased father were returning after taking bath from Badapokhari at about 9 a.m. on the relevant date of occurrence, both the appellants Dillip Das and Naba Behera who were hiding themselves near the boundary wall of
Legal Reasoning
Sridhar Das with bamboo lathis, assaulted the deceased by means of bamboo lathis (MOI and MOII) as a result, the deceased fell down and at that time, appellant Naba’s wife Shanti came there with a ‘Farsa’ (MO-III/IV) and handed over it to the appellant Naba who assaulted the deceased by means of Farsa on his both legs and thereafter, Naba handed over the said Farsa to the appellant Dillip who assaulted the deceased on the backside of his head and left arm by means of said Farsa. Susant Kumar Hota (PW24/PW2) further stated that he was standing in the broken JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 5 of 16 house of Baidhar Samantray and was witnessing the occurrence and the appellants entered inside the house of Naba. There is of course a little bit of variation in the evidence of Susant Kumar Hota while deposing in both the cases, which is quite natural for a truthful witness deposing about the same occurrence at separate point of time, but the testimony of the child witness (PW24/PW2) with regard to assault by the two male appellants on the deceased by means of lathis and Farsa and appellant Shanti Behera supplying the weapon of offence (MO-III/IV) to appellant Naba remains same in both the cases. This child witness was put to the stiff test of cross-examination by the defence in both the cases, but he came out successfully in such test and remained firmed and stood embedded to the ground in respect to the substance of evidence that appellants Naba and Dillip assaulted the deceased by means of MO-I & II and MOIII/IV and the appellant Shanti Behera supplying MOIII/IV to the appellant Naba and appellants Dillip and Naba using the said MOIII/IV to assault the deceased. 8. Ms. Sujata Jena, learned counsel appearing for the appellants in both the appeals assailed the impugned judgment by submitting that if PW24/PW2 was a witness to the occurrence and the grand- son of the informant, his name would have been figured out in the F.I.R. as an eye witness, but there was no mention or reference to the name of such child witness in the F.I.R. which was lodged after the informant came to the house and learnt about the occurrence from different persons. According to her, the omission of name of such eye witness in the F.I.R. itself discloses about the embellishment and exaggeration made by the prosecution by citing child witness as a witness to the occurrence. Ms. Jena also JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 6 of 16 submitted that the name of so-called eye witnesses were not referred to/ mentioned in the F.I.R. which itself rendered the prosecution case suspicious. Once the so-called eye witnesses’ account as appearing in the evidence is taken away/eschewed, there would be no case against the appellants for the commission of the murder of the deceased. 9. On the other hand, Mr. J. Katakia, learned AGA, submitted that time and again it has been held by a catena of decisions by the Apex Court that F.I.R. is not an encyclopedia of events containing minute details of the occurrence. The prosecution case cannot be disbelieved merely because the names of eye witnesses have not been mentioned in it. 10. True it is that the case against accused persons cannot be disbelieved at the very inception merely because the FIR does not contain the name of the eye witnesses nor is there any reason to disbelieve the testimony of crucial witnesses on account of this, especially when the accused persons are facing the charge of murder. 11. Another submission on behalf of the appellants was that it would not be safe to rely upon the evidence of child witness who was product of afterthought. It was further submitted that the remaining eye witnesses were relations of the deceased and were therefore interested witnesses. Convicting the Appellants on such evidence of interested witnesses, according to counsel for the Appellants, would be a travesty of justice. 12. On the other hand, learned AGA took the Court through the evidence of the eye witnesses and submitted that there is no JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 7 of 16 reason to disbelieve their evidence since their account would be truthful and would bring to book the real culprits. He submitted that by no stretch of imagination an interested witness like father or son of the deceased would falsely depose against innocent person and leave out the real culprit. 13. The above submissions have been considered. There is absolutely no bar in law to rely upon the evidence of child witness, provided the same is truthful and free from tutoring. Since the child witness by its tender age is prone to tutoring, the Court, while evaluating the evidence of child witness is, therefore, very careful, but once a child witness is found to be competent and his evidence is free from any infirmity or tutoring, the same can be relied upon like evidence of any other witness. 14. In this case, the trial Court before recording the evidence of child witness set out a certificate at the beginning of the deposition that the witness rationally answered all questions. Besides, the defence had not been able to make any dent in the evidence of the child witness by eliciting anything that would render his evidence unbelievable or make it appear to have been tutored. There was no suggestion by the defence to the child witness that he had been tutored. On the other hand, there were other eye witnesses to the occurrence who have corroborated the evidence of the child witness. These include Satyabhama Panda (PW5/PW8) and Sabita Panda (PW19/PW9) who were independent eye witnesses to the occurrence. 15. From the evidence of Satyabhama Panda (PW5/PW8) in both the cases, it transpires that at the relevant time she was working JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 8 of 16 inside her house and she heard the shout “MARI GALI MARI GALI” (screaming of the deceased). She opened the front door of her house and saw the Appellants Dillip Das and Naba Behera assaulting Chaitanya (deceased) by means of lathis. It was her further evidence that the Appellant Shanti Behera went there and gave a Farsa to one of those two accused persons. 16. Similarly, corroborating the evidence of Satyabhama Panda (PW5/PW8), another eye witness Sabita Panda (PW19/PW9) had stated in her evidence that she knows the appellants and about three years back (from the date of her deposition) at about 9.30 a.m. the occurrence took place and hearing the sound of assault by thengas, she and her mother came out of house and saw appellants Dillip Das and Naba Behera assaulting the deceased Chaitanya Hota by means of bamboo lathis and the deceased fell down by shouting “MARI GALI MARI GALI” and at that time, wife of Naba Behera came there with a Farsa and handed over to appellant Naba Behera instigating him to assault the deceased and thereafter the appellant Naba dealt a blow on the legs and hands of the deceased and appellant Dillip Das took the Farsa from the hand of Dillip Behera and dealt a blow on the head of the deceased and all the three appellants fled away from the spot. 17. These two witnesses were not only withstood the grueling cross-examination by the defence in both the cases, but also did not break out or deflected from the main substratum of their evidence about “appellants Dillip and Naba assaulting the deceased by means of bamboo lathis and thereafter with Farsa and appellant Shanti Behera handing over the Farsa to Naba”. JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 9 of 16 18. The defence had made sincere endeavour to demolish the evidence of these two witnesses, but remained unsuccessful in impeaching the credibility of these two witnesses. 19. One other witness was Bharat Hota (PW9/PW7) from whose evidence it transpired that on being asked, the deceased narrated that the accused persons assaulted him. However, while deposing in the second case, PW9/PW7 improved his version and stated that the Appellants Naba Behera and Dillip Das assaulted Chaitanya (deceased) and Shanti handed over a Farsa to appellant Naba Behera who dealt blows by Farsa on both legs of the deceased and appellant Dillip Das took out the said Farsa from Naba Behera and dealt blows on the head of Chaitanya (deceased). In the cross-examination of PW9/PW7 in the second case it was elicited by the defence that: “by the time he reached, he saw Naba Behera assaulting Chaitanya by means of Farsa on his two legs and thereafter, Dillip Das snatched away the Farsa and dealt blows on his (deceased) head”. Further, the cross- examination of Bhart Hota in former case did not yield much for the defence so as to disbelieve his evidence. 20. In any event, even if one were to keep aside the evidence of Bharat Hota, there is the other strong evidence of Satyabhama Panda, Susant Kumar Hota and Sabita Panda who are not only consistent, but also corroborate each other in material particulars. 21. The defence of course had made a feeble attempt to categorize all the above three as interested witnesses, but law in this regard is very well settled. On this aspect, in Ram Bharosey v. State of JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 10 of 16 U.P. AIR 2010 SC 917, the Apex Court has explained and laid down on this point in the following words: interested witness cannot be “A close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an thrown overboard, but has to be examined carefully before accepting the same. In the light of the above judgments, it is clear that the statements of the alleged interested witnesses can be safely relied upon by the Court in support of the prosecution's story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the the case clearly depict circumstances of completion of the chain of evidence pointing out to the guilt of the accused, then we see no reason why the statement of so called `interested witnesses' cannot be relied upon by the Court.” 22. Keeping in view the above legal aspect, this Court does not find any infirmity in the trial Court relying upon the evidence of the above eye witnesses whose evidence has received ample corroboration by the medical evidence of the Doctor PW23 in both the cases. The medical evidence of PW23 is as under: “ i. Incised wound 3”x1” over left arm 1 & 1/2” below wrist joint. JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 11 of 16 ii. Incised wound right occipital region 2”x1”. iii. Haemotoma right occipital region with 200ml of clotted blood under dura. iv. Incised wound 2”x1” over below right calf. v. Incised wound 3”x1,1/2” over left calf with 300 ml of clotted blood. Multiple haemorrhage from major sides like brain and calf caused shock and death. Injury no. ii and v are sufficient in ordinary course of nature to cause death. Time since death was within 24 hours. Injury no.iii can be caused by lathi. The incised wounds can be possible by Farsa M.O.IV. This is my report Ext. 19 and Ext.19/1 is my signature. I have given opinion Ext. 17/1 regarding the nature and cause of injury if can be possible by the weapon of offence produced before me.” 23. The above evidence of PW 23 together with the evidence of eye witnesses, sufficiently proves the homicidal death of the deceased. This is one aspect that has not been questioned by the defence. 24. It was submitted on behalf of the Appellants that the F.I.R. has not been proved in the later case. However, the Court finds that the informant was neither an eye witness to the occurrence nor was he having any personal knowledge of the occurrence. Rather his evidence as PW1 in former case suggests that he derived knowledge about the occurrence from one Jatia, son of Baidhar Panda of his village. Therefore, this contention is rejected. JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 12 of 16 25. The prosecution sought to prove the recoveries made pursuant to disclosure statements of the Appellants Naba and Dillip. Independent witnesses Wahid Khan (PW14/PW17) and Musa @ Wohid Khan (PW17/ PW20) were examined to prove such disclosure statement and seizure of articles pursuant to such disclosure statements. However, only PW17/ PW20 Musa @ Wohid Khan stated in evidence about Appellants Naba and Dillip giving recovery of lathis, Farsa and their wearing apparels out of the place of concealments. The seizure was made by the IO PW22 from whose evidence it transpires that he had recorded the disclosure statement of Appellants Dillip Das and Naba Behera vide Exts. 4 & 5/ Exts.4 & 12 and pursuant to such disclosure statement, the appellant Dillip Das had given recovery of Farsa (MO-III/IV) from a heap of straw and one striped lungi (MO- VI/VII) along with other articles. Besides, the evidence of I.O. also discloses seizure of two lathis MO-I & II from the spot and all these articles namely, Farsa with mark “A”, lathis “B and C”, lungi of appellant Dillip Das “E” were sent to SFSL Rasulgarh, Bhubaneswar along with other articles for chemical examination vide Ext. 18 and the chemical examination report was obtained vide Ext. 20 which reveals presence of blood stains of human origin of “B-Group” on Farsa (MO-III/IV) and on lungi of appellant Dillip (MO-VI/VII) as well as presence of human blood on one of the lathis. The aforesaid evidence clearly suggests that the blood stain of deceased was found on the lungi worn by the Appellant Dillip Das at the time of occurrence since human blood stain of “B-Group” was found on Farsa which was proved to have been used for murder of the deceased. No explanation was offered JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 13 of 16 by the Appellant Dillip to the aforesaid incriminating evidence. It is, however, true that no question has been put to appellant Dillip with regard to this incriminating substance, but the Appellant Dillip having aware of such incriminating evidence had preferred not to explain as to how the blood stain of deceased was found in his wearing apparels (MO-VI/VII) or weapon of offence Farsa and human blood on one of the lathis. 26. What is the evidentiary value of recovery of weapon made pursuant to disclosure statement of the accused had been succinctly explained in the oft quoted decision in Pulukuri Kottaya v. Emperor AIR 1947 PC 67 which have become locus classicus, in the following words: is to treat fallacious “10. ….It the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife the is proved to have been used commission of the offence, the fact discovered is very relevant. But if to the statement the words be added “with which I stabbed A" these words are inadmissible since they do not relate to the the discovery of informant.” the house of the knife in in JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 14 of 16 27. Evaluating the evidence of recovery of lathis and Farsa in this case in the backdrop of decision of Pulukuri Kottaya (supra), it appears that one of the lathis recovered contained the stains of human blood and the other weapon of offence Farsa also contained the stains of human blood of “B-Group” and such weapon of offences were proved to have used by the appellants Dillip Das and Naba Behera and these are definitely adverse circumstance against these two appellants. Moreover, the consistent evidence of witness also discloses that appellant Shanti Behera had handed over the Farsa (MOIII/IV) to Naba Behera who in turn after assaulting the deceased with such Farsa had handed over it to appellant Dillip Das who had also assaulted the deceased by such weapon of offence and therefore, the common intention of Shanti Behera is also forthcoming and squarely established by the evidence on record to finish the deceased. Besides, the evidence of I.O. also reveals prior enmity between the deceased and the appellants which reveals corroboration from the evidence of other witnesses. The defence had tried to impeach the veracity of prosecution witnesses by cross-examining them, but such cross-examination did not yield much. Rather it provided assurance to the evidence of main witnesses in material particulars, such as assault made on the deceased, place of occurrence, prior enmity as motive of the crime and the role of each of the appellants in executing the crime. 28. Having carefully and meticulously examined the evidence on record with the assistance of learned counsel for the parties, this Court finds that the prosecution has successfully proved its case against the Appellants beyond all reasonable doubt and the JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 15 of 16 learned trial Court has not committed any illegality in convicting the appellants under section 302/34 of IPC. No grounds have been made out to interfere with the finding of the learned trial Court.
Decision
29. In the result, both these appeals i.e. JCRLA No. 39 of 2005 and CRLA No. 346 of 2004 stand dismissed with no order as to costs. The impugned judgment passed by the learned Ad-hoc Additional Sessions Judge, Fast Track Court, Khurda in S.T. Case No.34/13/135 of 2003/2002 and S.T. Case No.11/157 of 2003 is affirmed. 30. The bail bonds of Appellant No.1 Naba Behera & Appellant No.2 Shanti Behera in JCrlA No. 39 of 2005 and Appellant Dillip Kumar Das in CRLA 346 of 2004 are hereby cancelled. They are directed to surrender forthwith and in any event not later than 5th August 2023 failing which the IIC of the concerned PS will take steps forthwith to take them into custody to serve out the remainder of their respective sentences. A copy of this judgment be delivered forthwith to the IIC of the concerned PS for necessary action. (Dr. S. Muralidhar) Chief Justice (G. Satapathy) Judge Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 06-Jul-2023 18:47:53 JCRLA No. 39 of 2005 & CRLA No.346 of 2004 Page 16 of 16