The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.67 of 2012 In the matter of an Appeal under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 25th June, 2012 passed by the learned Adhoc Additional Sessions Judge (Fast Track), Sambalpur, in S.T. Case No.91/46 of 2011. Baisakhu Bagh ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mrs.C. Kastury (Advocate) For Respondent - Mr.G.N. Rout, Additional Standing Counsel
Legal Reasoning
evidence of the Doctor (P.W.11), we find that the evidence of the I.O. (P.W.12), who has noticed such injuries on the person of the deceased during inquest and has mentioned in his own language in the report (Ext.1). Other witnesses including P.W.1 have stated to have seen the deceased lying dead with injuries. The Doctor (P.W.11) has also noted the seats and dimensions of the injuries in her report (Ext.10). With the above evidence on record, we are left with no option but to hold that Krushna met a homicidal death. 12. Coming to the acceptability of the evidence in so far as the complicity of the accused is concerned, let us have a glance on the evidence of P.W.1. She has stated that at the relevant time, when she was proceeding towards the cow dung yard to throw the cow dung collected from her house, just in front of the house of the accused, she saw the accused holding her uncle Krushna by an axe and Krushna (deceased) at that time was coming to their house. She has also stated to have seen the accused giving three successive axe blows on Krushna. Having stated so, she has further narrated that the first blow fell on the neck; second one fell near the left ear; and the third one on the head. The reaction of this witness has also been narrated that then she shouted “MORA KAKA KU HANIDELA”. It is her evidence that thereafter JCRLA No.67 of 2012 Page 8 of 11 - 9 - the accused fled away from the spot holding that axe. During cross-examination, she has stated that at the relevant time, Krushna was cutting firewood near his house. Although some discrepancies are appearing with regard to the seat of injuries, as has been said by this witness, to have been inflicted by this accused upon the deceased, those, in our view, are not of such significance to discredit the assertive version of P.W.1, which has remained unshaken. The witness, having not stated before the I.O. (P.W.12) about the number of blows given by the accused is also not of that importance adversely to impact the substratum of her version. She has stated that having seen the incident, she stopped proceeding further to throw the cow dung, which under the circumstance, is quite natural. We find no such glaring infirmity in the evidence of P.W.1. The evidence of P.W.1 is receiving corroboration from the evidence of immediate post occurrence witness (P.W.2), who is her brother that. It is his evidence that on arrival, P.W.1 told him that their uncle Krushna was assaulted by the accused by means of the axe. Thus, attribution of the authorship of the injury received by Krushna to the accused, the evidence of P.W.2 again receive corroboration from the evidence of P.W.3, who is the brother of the deceased and the informant (P.W.4) when he has stated that he was told about the incident by P.W.2. JCRLA No.67 of 2012 Page 9 of 11 - 10 - The evidence of P.W.4, who is the younger brother of the deceased is also to the effect that he was told the details of the occurrence by P.W.1 when he arrived in the house. In view of the above evidence, we are to scrutinize the evidence of P.W.5, who is an independent witness and a co-villager. She has stated that at the time of occurrence, she was going to village tank to take bath and from a distance of 25 to 30 feet from the place of occurrence and saw the accused assaulting Krushna by that axe. She also states that the accused gave three blows by that axe. It is her evidence that when immediately she arrived at the spot, she saw P.W.1 by the side of the deceased. Furthermore, it has been deposed by P.W.7 that at the relevant time, when he was going to attend the call of nature, he saw the accused running away carrying an axe and on being asked, the accused told him to have killed Krushna. He, having honestly stated to have not seen the occurrence, when has stated about the extra judicial confession, we too find no such material to have surfaced during cross-examination to disbelieve his version on that score. It was also natural for this witness (P.W.7) under the circumstance to ask the accused seeing him running with axe and it cannot be said to be unnatural on the part of the accused to immediately disclose the sin committed by him. JCRLA No.67 of 2012 Page 10 of 11 - 11 - On a conspectus of analysis of the evidence hereinabove, this Court finds that the prosecution has proved the charge against the accused that he has committed the murder of Krushna beyond reasonable doubt. 13.
Arguments
CORAM: MR. JUSTICE D.DASH MR. JUSTICE A.C.BEHERA Date of Hearing : 22.09.2023 : Date of Judgment:03.10.2023 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and the order of sentence dated 25th June, 2012 passed by the learned Adhoc Additional Sessions Judge (Fast Track), Sambalpur, in S.T. Case No.91/46 of 2011 arising out of C.T. Case No.1904 of 2010 JCRLA No.67 of 2012 Page 1 of 11 - 2 - corresponding to Jujumura P.S. Case No.76 of 2010 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Sambalpur. The Appellant (accused) thereunder has been convicted for committing the offence under sections 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for two (2) months for commission of the said offence. 2. Prosecution Case:- On 29.12.2010 during noon hours, one Krushna Chandra Bagh was cutting firewood near his house. During that time, the accused arrived there holding an axe and he assaulted Krushna on his head and other parts of his body causing severe bleeding injuries. Receiving such axe blows, Krushna fell on the ground. Seeing this, his niece Durlava Bagh (P.W.1) shouted for help when the accused left the place and went towards the jungle carrying that axe. The villagers, having gathered, a vehicle was arranged to shift Krushna to Jujumura Primary Health Centre (PHC). Thereafter, Krushna being referred, was shifted the V.S.S. Medical College and Hospital, Burla, where he was declared dead. JCRLA No.67 of 2012 Page 2 of 11 - 3 - On that day around 3.30 p.m., one Santosh Bagh (P.W.4), who happens to be the younger brother of Krushna (deceased) lodged a written report with the Inspector-in-Charge (IIC) of Jujumura Police Station (P.S.). Receiving the said written report from P.W.4, the IIC (P.W.12), treated the same as FIR (Ext.2) and registering the case, took up investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.12) examined the Informant (P.W.4) and recorded his statement under section 161 of Cr.P.C. After visiting the spot, the I.O. (P.W.12) prepared the spot map (Ext.12). He also seized incriminating articles such as blood stained earth and sample earth under seizure list (Ext.8). He too seized other articles, which according to him, were incriminating. The accused, being searched in his house, could not be traced. However, he was arrested some time thereafter. While in police custody, it was said that the statement to have kept the axe concealed under the earth near Khalidhar Nala. He also stated that if he would be taken to that place, he would give recovery of the same. The I.O. (P.W.12), having recorded the statement of the accused under Ext.3, was taken by the accused to the place of concealment and the axe was recovered and seized in presence of the witnesses. On 30.12.2010, inquest over the dead body of the deceased was held and the report (Ext.1) was prepared. The dead body of the deceased was JCRLA No.67 of 2012 Page 3 of 11 - 4 - sent for post mortem examination by issuing necessary requisition. The seized incriminating articles were then sent for chemical examination through Court. The I.O. (P.W.12), on completion of the investigation, submitted the Final Form placing the accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Sambalpur, on receipt of the Final Form, took cognizance of said offence and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offence against the accused. 5. The prosecution, in support of its case, has examined in total twelve (12) witnesses during Trial. As already stated, P.W.1 is the niece of the deceased and the informant (P.W.4) and is the eye witness to the occurrence. P.W.2 is another nephew of the deceased and the informant (P.W.4), who has heard about the incident from P.W.1. P.W.3 is another post occurrence witness and he is none other than the brother of the deceased and informant (P.W.4) P.W.5 is a co-villager, who has stated to have seen the incident. Another co-villager (P.W.7) has been examined and his evidence is that he had seen the accused running away with the axe and it was said that on being asked, the accused confessed before him to have killed Krushna. The other important JCRLA No.67 of 2012 Page 4 of 11 - 5 - witness is the Doctor (P.W.11), who had conducted the autopsy over the dead body of Krushna, is P.W.11. The I.O., at the end, has come to the witness box as P.W.12. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 17. Out of those; important are the FIR (Ext.2); inquest report (Ext.1); the post mortem report (Ext.10); the spot map (Ext.12); and the chemical examiner’s report (Ext.17). The disclosure statement of the accused had been admitted in evidence and marked Ext.3 and the corresponding seizure list is Ext.4. 6. The accused, having taken the plea of complete denial and false implication, has, however, not tendered any evidence in support of the same. 7. The Trial Court, in view of the evidence of the Doctor (P.W.11) and that of the I.O. (P.W.12) as well as the evidence of other witnesses, has held that Krushna met a homicidal death. Having said so, placing reliance upon the evidence of the eye witness (P.W.1) and other witnesses such as P.Ws.5 & 7, the Trial Court has held that the charge against the accused has been established beyond reasonable doubt. 8. Mrs.C.Kastury, learned counsel for the Appellant (accused) submitted that the Trial Court, without proper scrutiny of the Page 5 of 11 JCRLA No.67 of 2012 - 6 - evidence of P.Ws.1, 5 and 7, has erred in holding the accused to be the perpetrator of the crime in causing fatal injuries upon the deceased. She submitted that in view of the prior dispute between the accused and the deceased, as has been stated by P.W.1, the Trial Court ought to have carefully scanned the evidence of all those P.Ws., who have directly implicated the accused. She submitted that the story projected by all these witnesses that the accused suddenly came and caused the murderous assault upon the deceased, keeping in view the time and place of the incident is highly improbable. She, in order to put up strength to her submission, has taken us through the evidence of all these witnesses. In view of all these, she contended that with the available evidence, the judgment of conviction and order of sentence impugned in this Appeal cannot be sustained. 9. Mr.G.N.Rout, learned Additional Standing Counsel for the Respondent-State, submitted all in favour of the finding of guilt against the accused, as has been returned by the Trial Court. According to him, there is absolutely no infirmity in the evidence of P.W.1, who is the natural eye witness to the occurrence and when no such material is available to doubt her presence and raise the suspicion that she might not have seen the occurrence, the Trial court, finding the evidence of P.W.1 to be receiving full support from the evidence of other witnesses including P.W.5, JCRLA No.67 of 2012 Page 6 of 11 - 7 - has rightly convicted the accused for committing the murder of Krushna. 10. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the prosecution (P.Ws.1 to 12) and have perused the documents admitted in evidence marked as Exts.1 to 17. 11. In order to address the rival submission and judge the sustainability of the finding of guilt against the accused, as has been returned by the Trial Court, we are thus called upon to scrutinize the evidence of P.W.1 and other witnesses. Before taking up the above exercise, it be stated here that the nature of death of Krushna, as has been held to be homicidal by the Trial Court, is not under challenge before us. The evidence of the Doctor (P.W.11) is very clear that she had noticed three cut wounds over the dead body of Krushna and those were on the left side of the neck, left mastoid over left mandible and left partial region. It has also been stated by P.W.11 that the injuries on the scalp had proved fatal. It has further been stated by her that all these injures were possible by the sharp cutting heavy weapon and other injury was with the hard blunt force impact. Her evidence is also to the effect that the injures were ante mortem in nature and the death of Krushna was homicidal. JCRLA No.67 of 2012 Page 7 of 11 - 8 - During cross-examination, she has stated that the cut wounds, which she had noticed, were the result of three blows. With such
Decision
In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 25th June, 2012 passed by the learned Adhoc Additional Sessions Judge (Fast Track), Sambalpur, in S.T. Case No.91/46 of 2011 are hereby confirmed. Since the Appellant (accused), namely, Baisakhu Bagh is on bail, he is directed to surrender before the Trial Court forthwith to serve out the sentence. A.C.Behera, J. I Agree. (D. Dash) Judge (A.C.Behera) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 06-Oct-2023 10:34:26 JCRLA No.67 of 2012 Page 11 of 11