MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.100 of 1998 In the matter of an Appeal under Section 374 of the Code of Criminal Procedure, 1973 and from the judgment dated 31.05.1997 passed by the learned Sessions Judge, Dhenkanal-Angul in S.T. Case No.97 of 1993. Seshadev Nayak …. Appellant -versus- State of Odisha …. Respondent For Appellant : Mr. G.C. Swain, Advocate For Respondent : Mr. S.N. Das, ASC CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of hearing : 04.04.2024 : Date of judgment : 20.08.2024 V. Narasingh, J. The Appellant, has called in question the judgment of conviction under Section 302 of Indian Penal Code, 1860 (for short, ‘the IPC’) and order of sentence dated 31.05.1997 of imprisonment for life passed by the learned Sessions Judge, Dhenkanal-Angul at Dhenkanal in S.T. Case No.97 of 1993. 2. The prosecution case in brief is that the Appellant, deceased-Nrusingh Naik and their elder brother-Bansidhar Naik and another brother lived in one complex in Bidharpur village. The deceased-Nrusingh Naik was possessing a piece of Government CRA No.100 of 1998 Page 1 of 12 land in front of their house, which he was using for stacking cowdung and straw. Accused-Appellant encroached upon a portion of such land of the deceased and constructed a thatched hut over it. For which, there was a quarrel between two brothers prior to the date of occurrence and since the Appellant was threatening the deceased with dire consequence, he had been to the police station to report the matter. 3. On 08.02.1992 at about 8.30 P.M. the deceased after returning home from police station to home asked his wife Renuka Naik-informant- P.W.6 (sole eye witness to the occurrence) to serve him food. His wife (informant) asked him to tie down their bullocks in the cowshed after which she would serve him food. Both of them went to their bari side and the informant was carrying a lantern and the deceased tied down the bullocks in the cowshed. At that time, the deceased went to bring straw for the bullocks and was followed by his wife-informant, who was holding the lantern. At that moment Appellant suddenly emerged holding one sword and coming from the opposite direction of the deceased stabbed to the belly of the deceased and the deceased fell down on the ground shouting “Marigali Marigali”. The Appellant pulled out the sword from the belly of the deceased and inflicted further blows on the head as well as the hands of the deceased. Thereafter, Appellant ran away by the CRA No.100 of 1998 Page 2 of 12 back side of the cowshed. The wife of the deceased (Informant- P.W.6) immediately took the injured with bleeding injuries to her lap, sat down there and cried. 4. Hearing her cry the elder brother of the deceased Bansidhar Naik-P.W.2 and others including her mother-in-law came there and she narrated the incident to them. By that time, the deceased was already unconscious. Bansidhar Naik-P.W.2 along with others took the injured in a truck to District Head Quarters Hospital, Dhenkanal and in the same night at about 4 A.M., P.W.2 returned home and informed that the injured had expired on the way to hospital. 5. On 09.02.1992 at 5.10 A.M. on getting information about
Legal Reasoning
the incident, the S.I. of police, Gondia police station, one Sri P.C. Biswal (P.W.9) reached the house of the deceased at 5.30 A.M. Wife of the deceased P.W.6 (Renuka Naik) verbally reported the fact of murder of her husband, which P.W.9 reduced into writing and since it revealed a cognizable case under Section 302 of IPC, he treated the same as FIR, took up investigation and sent the FIR to Gondia P.S. for registration. 6. During the investigation, the I.O. kept the spot guarded came to the police station and in the absence of O.I.C., he registered Gondia P.S. Case No.23 of 1992 (G.R. Case No.91 of 1992) CRA No.100 of 1998 Page 3 of 12 U/s.302 of IPC. Thereafter, he went to the District Headquarters Hospital, Dhenkanal and conducted inquest over the dead body in presence of witnesses and sent the same for postmortem examination. 7. After investigation, charge sheet was submitted citing the appellant as the sole accused and on the basis of the same, the accused faced trial being charged under Section 302 of IPC for causing death of his brother Nrusingh Naik. 8. To drive home the charge, the prosecution examined the following 9 (nine) witnesses; P.W.1 Dr. Bijaya Kumar Sahu (doctor who conducted the post-mortem examination) P.W.2 Bansidhar Naik (elder brother of the deceased) P.W.3 Sarat Kumar Mohanty P.W.4 Alekha Bihari Das (R.I) P.W.5 Pradeep Kumar Sahu- witness to seizure of weapon of offence P.W.6 Renuka Naik (wife of the deceased and sole eye witness to the occurrence) P.W.7 Prabin Kumar Das- Investigating Officer P.W.8 Bhabani Sankar Mishra- Investigating Officer P.W.9 Prahallad Chandra Biswal- Investigating Officer CRA No.100 of 1998 Page 4 of 12 9. Besides above, prosecution also proved several documents which have been admitted into evidence and marked as Exts.1 to 14, out of which, Ext.4/1- FIR, Ext.1-Post-mortem examination report of deceased, Ext.8-Inquest report, Exts.10, 11, 12 the seizure lists, are of significance. 9A. Several material objects were also admitted into evidence and marked as M.Os I-IV, out of which M.O III- Katari is the weapon of offence. 9B. The statement of Bansidhar Nayak -P.W.2 recorded under Section 161 Cr.P.C. was admitted in evidence and marked as Ext.A. 10. In his examination U/s.313 Cr.P.C, the defence plea was one of complete denial and false implication. 11. P.W.1 is the Medical Officer, who conducted the post mortem of the deceased (Nrusingh Naik) on identification by police constable and the brother of the deceased Bansidhar Naik, P.W.2, found the following external injuries. “xxx xxx xxx (1) Incised cut wound of scalp eliptical shape 3.5"x4" wide at the middle X bone deep present in the right occipito-parietal region, 1/2" behind the upper end of right pina. Undernath bone at the site of injury partially cut. (2) Incised cut wound of scalp, eliptical shape, 2"X1/3" wide in the middle X bone deep, present in the CRA No.100 of 1998 Page 5 of 12 occipital region horizontally. The underneath bone partially cut in the line of wound. (3) Incised cut wound, of size 2 on lengthX1/2 CM. wide in the middle with lateral end of the wound pointed and medial end 2 M.M. wide present in the left side of interior abdominal wall, 5 cm. above the umbilicus and 3 cm. lateral to mid-line. The wound directed downward and medially. A patch of omentum of size 4"X2" punched out through the wound from abdominal cavity. (4) Incised wound of size 5 cm.X 3 cm. present in the base of the middle and ring finger on the dorsal aspect of right hand with fracture of Ist phalanx of both fingers (5) Incised wound of size 1"X1/3" present on the dorsal aspect of middle of right index finger. (6) Incised cut wound of size 7 cmX5 cm. Cutting the medical half of the left fore arm ½” above the left wrist joint. Fracture of lower end of left ulna and writst joint exposed with cut of mussle and tendon tissues. xxx xxx xxx” 12. The P.W.1 further stated that the injuries were ante mortem in nature and cause of death was due to shock and haemorrhage as a combined effect of all the above ante mortem injuries which were sufficient to cause death in ordinary course of nature. And, the time of death was stated to be 12 to 24 hours from the time of post mortem examination. The post mortem report was marked as Exhibit-1 and his signature as Exhibit-1/1. From the CRA No.100 of 1998 Page 6 of 12 evidence of the P.W.1 it is established that death of Nrusingh Naik was homicidal. 13. As already noted the Appellant, the deceased and P.W.2 are brothers. 14. It is borne out from the evidence of P.W.2 (elder brother of the deceased) that he, the deceased, the accused and another brother lived in the same house complex and in one mess. P.W.2, who is the brother of the both of the deceased as well as the appellant, resiled. P.W.3 who was cited as post occurrence witness and had reached the place of occurrence hearing the cry and wailing of the wife of the deceased- P.W.6 that the accused assaulted, also did not support the prosecution. 15. P.W.4 is the R.I., who prepared the spot map, whose evidence is not significant. P.W.5 is the witness to seizure of the alleged weapon of offence-M.O.III but did not support the case of the prosecution that the accused gave recovery of the same. 16. P.W.9 is the I.O, who carried out the major part of investigation. P.W.7 subsequently took over the charge of the investigation from the P.W.9 and conducted raids to apprehend the accused and on receipt of information from CSI, Dhenkanal that the accused surrendered, he took the accused on remand and CRA No.100 of 1998 Page 7 of 12 interrogated him and it is the case of the prosecution that during such interrogation the accused caused the recovery of weapon of offence M.O.III and seizure list, who marked as Exhibit-3/1. 17. P.W.8 is the Investigating Officer, who was sent the exhibits for examination. In the F.I.R which was instituted at the instance of the wife of the deceased the appellant has been named as the sole accused. 18. The wife of the deceased, P.W.6, in her evidence has clearly and cogently narrated the gruesome of manner in which the accused-Appellant dealt repeated blows in front of her eyes, which ultimately led to the death of her husband. She has also stated that earlier the accused-Appellant had threatened to assault her husband and on the fateful day also her husband-deceased had been to the P.S. Her evidence stood the scrutiny of cross-examination. 19. It is urged by the learned counsel for the defence that the seizure witnesses have turned hostile and P.W.2, who is the elder brother of the accused as well as the deceased has not supported the prosecution. He also drew the attention of this Court to the discrepancy in recording the statement of Bansidhar Naik, marked as Exhibit A in which it has been mentioned that the accused- Appellant Seshadev Nayak is the injured and the wife of the deceased- P.W.6 cradling him and holding him in her lap and CRA No.100 of 1998 Page 8 of 12 referring to the same submitted that by no stretch of imagination it can be said that the prosecution has been able to establish the guilt of the accused beyond reasonable doubt. 20. The Appellant also tried to derive support from the serological report relating to the weapon of offence, which was M.O.III, not containing any blood stain and he submitted with vehemence that since the P.W.6 is the wife of the deceased was categorically in her submission that the Appellant had used a sword and since M.O.III is a katari and the said Katrai does not contain any blood-stain, the accused has been falsely implicated because of previous enmity and also in view the statement of the Doctor, P.W.1 in cross-examination noted that only injuries No.1 and 2 could be caused by the katari. 20A. It is urged with vehemence by the learned counsel for the appellant that in view of the discrepancies as above the learned Trial Court committed grave error of judgment is relying on the solitary testimony of the eye witness -P.W.6, the most interested witness, being the wife of the deceased in holding the appellant guilty. And, in fact it is submitted that it has resulted in miscarriage of justice. 20B. Section 134 of the Evidence Act deals with number of witnesses required for the proof of any fact. It is the time-tested CRA No.100 of 1998 Page 9 of 12 doctrine that, while appreciating evidence the same has to be weighed and not counted. Though it is not uncommon for the Courts to insist for corroboration more as not as a requirement of law but of prudence. That’s why the legislature has stated in Section 134 of the Evidence Act that “No particular number of witnesses shall in any case be required for the proof of any fact”. In this context, reference can be made to one of the earliest judgment of the Apex Court in the case of Vadivelu Thevar and another Vrs. State of Madras reported in AIR 1957 SC 614 : 1957 SCC OnLine SC 13. 21. The appreciation of testimony of solitary related witness came up for consideration of the Apex Court in the case of Ravi Vrs. State represented by Inspector of Police reported in (2008) 15 SCC 115 and the Apex Court taking note of all the judgments has held that there is no embargo in finding an accused guilty on the sole testimony of related witness if found to be reliable. 22. Evaluating the evidence of P.W.6 in the background of pronouncement of the Apex Court as aforesaid, it is conclusively established that the accused-Appellant is the author of the crime and merely because P.W.2, who is the elder brother of the deceased did not support the prosecution, the evidentiary value of P.W.6 since she is the wife of the deceased does not get diluted in any manner. CRA No.100 of 1998 Page 10 of 12 22A. Even the doctor in his evidence had said that the injuries I and II can be caused by the Katari and the patient died due to heavy loss of blood on account of such injury. 23. The occurrence took place on 08.02.1992 and the seizure of the weapon of offence was on 06.09.1992, after the accused was taken on remand on 03.09.1992. Because of the time lag between the date of occurrence and ultimate recovery of weapon of offence(M.O.III), the same not containing any bloodstain, cannot in any way ennure to the benefit of the accused in the face of the testimony of P.W.6 and the Doctor(P.W.1). The conduct of the accused absconding also lends credence to the claim of the prosecution that he is the author of the crime. 24. Such conduct, being admissible under Section 8 of the Evidence Act, in the given circumstances cannot be lost sight of more so when the accused-Appellant and the deceased were brothers. 25. On going through evidence on record, this Court also does not find any reason to doubt the credibility of the evidence of I.O (P.W.7) relating to recovery of weapon of offence. 26. Hence, on an analysis of the evidence on record, inter alia, the statement of P.W.6 the eye witness, the conduct of the appellant, the recovery and the Medical evidence connecting CRA No.100 of 1998 Page 11 of 12 M.O.III to the injury found on the deceased, this Court does not find any infirmity in the appreciation of evidence by the learned Trial Court and consequential finding of the appellant being guilty of committing offence under Section 302 of IPC for intentionally causing the murder of his brother (Nrusingh Naik) and imposition of sentence of life imprisonment. 27. 28. The appeal accordingly, stands dismissed. Since the Appellant was allowed to be enlarged on bail, he is directed to surrender forthwith to serve out the sentence. Necessary steps in this regard as provided in law shall be taken by the learned Trial Court. (V. Narasingh) Judge D. Dash, J: I agree. (D. Dash) Judge Orissa High Court, Cuttack Dated the 20th of August, 2024/Soumya Signature Not Verified Digitally Signed Signed by: SOUMYA RANJAN SAMAL Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 03-Sep-2024 18:08:52 CRA No.100 of 1998 Page 12 of 12