The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.33 of 2012 (From the judgment of conviction and order of sentence dated 17.09.2011 passed by the learned Ad hoc Additional Sessions Judge, F.T.C., Padampur in Criminal Trial (Sessions) No.214/19 of 2010-2011) Halu Sandha …. Appellant -versus- State of Odisha …. Respondent Advocates appeared in the case: For Appellant : -versus- Mr. Jagabandhu Sahoo, Adv. For Respondent : Mr. S.S. Kanungo, AGA CORAM: MR. JUSTICE D. DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-30.11.2022 DATE OF JUDGMENT:-12.01.2023 Dr. S.K. Panigrahi, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 17.09.2011 passed by the learned Ad hoc Additional Sessions Judge, Fast Track Court, Padampur, in Criminal Trial (Sessions) No.214/19 of 2010-2011 arising pg. 1 out of Sohela P.S. Case No.112(4) of 2010 convicting the Appellant (accused) for the offence punishable under Section 302 I.P.C. and sentencing him to undergo imprisonment for life and pay a fine of Rs. 5,000/- in default to undergo R.I. for one year. I. CASE OF THE PROSECUTION: 2. The case of the prosecution is that one Darpana Sandh (“the deceased”) resided in village Jatala with his wife Alladini Sandh and his children. 3. Darpana was the “Jhankar Deheri” of the village and used to perform the ‘Seva Puja’ of the village deities. On 10.08.2010, on the occasion of ‘Harali Amabasya’, the villagers offered a goat to the village deity as ‘bhoga’. After the goat was sacrificed as 'bhoga' to the village deity, Darpana and his brother, Halu Sandha (“Appellant”) got into a tussle relating to sharing of the ‘bhoga’ and for that reason, Halu bore a grudge against Darpana. 4. On 10.08.2010, at about 8 P.M.,Darpana was resting on the stairs of the Jagannath Temple of the village. At that time, Halu arrived at that spot and assaulted Darpana with an iron rod resembling a crowbar; mortally wounding him. The deceased fell unconscious for the assault and people got into a bustle. pg. 2 5. Next, Alladini arrived at the spot alongwith daughter, Ahalya and a co-villager, Sundar and found Darpana unconscious. Thereafter, the deceased was taken to Sohela hospital. After giving preliminary medical treatment, the doctor referred Darpana to V.S.S. Medical College and Hospital, Burla for treatment. In the morning of 11.08.2010, the deceased succumbed to his injuries in V.S.S. MC&H, Burla. The same day, Alladini (“informant & P.W. 11”) filed a written report against the murder of her husband, Darapana before the Inspector-in-Charge of Sohela Police station in Burla hospital. 6. The then I.I.C. of Sohela Police station, Ananda Bardhan
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Guru, registered the FIR and started investigating the case. In course of the investigation, Investigating Officer examined the informant and witnesses, held an inquest over the dead body of the deceased, and despatched the dead body for post- mortem examination. He also arrested the accused Halu Sandh, who after making a discloser statement, led him and other witnesses to the weapon of offence i.e. one crowbar (iron rod). He also seized the apparel of the accused and deceased and seized other incriminating articles and despatched the same for chemical examination. 7. On his transfer, he handed over the charge of the
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investigation to Pradip Kumar Samal. Mr. Samal further investigated the case and finally upon completion of the pg. 3 investigation, filed the charge sheet against the accused. On commitment, the accused is facing the present trial. 8. The prosecution examined fifteen witnesses. No witness was examined for the defence. II. TRIAL COURT JUDGMENT 9. The trial Court began the analysis of the evidence with the examination of the testimonies of the P.Ws. 10. Umaharan Sahu (P.W.3) and Prabina Kumar Sahu (P.W.6)claimed to have been the ocular witnesses to the incident. 11. P.W.3 deposed that, on the date of the incident, the deceased had offered Puja on Harali Amabashya. He was resting on the stairs (pahacha) of Jagannath Temple of the village. Then, P.W. 3 approached the deceased and gave him Rs.20/- (Rupees Twenty only) towards 'chanda' (donation) for the puja. P.W.3 also stated that after handing over money to the deceased, he also sat on the steps of the Temple. After some time, the appellant arrived there and assaulted the deceased with an iron rod inflicting injury to his head. Then, hearing the commotion, the appellant fled. P.W.3 further stated that the deceased fell unconscious and bled on the stairs of the temple. P.W.6 corroborated the deposition of P.W. 3. 12. The trial court observed that no material was elicited in the cross-examination of P.Ws. 3 & 6 to disbelieve their presence pg. 4 at the spot at the time of the incident. Not a single contradiction with reference to their 161, Cr.P.C. statement was elicited by the defence in the cross-examination of P.Ws. 3 & 6 to discredit their deposition. 13. The trial court further observed that the story detailed by the P.Ws. is also corroborated by the inquest report which spelt out that the wounds on the head of the deceased, ultimately, caused his death. Autopsy surgeon, Dr. Sukhishyam Tripathi (P.W. 10) deposed to have found wounds on the front parietal bone in the skull of the deceased which caused his brain to hemorrhage. He also found that the lungs, liver, spleen and kidney of the deceased were pale. 14. The doctor opined that all the injuries were ante-mortem in nature and might have been caused by a hard and blunt object. P.W.10 also opined that the death of the deceased was due to Cranio Cerebral injury and the injuries were fatal in the ordinary course of nature to cause death. P.W.10 further opined that the internal injury corresponds to the external injury.He also deposed to have examined one crowbar made of iron and opined that the external injury and the corresponding internal injury found by him as per the post- mortem report is possible by that crowbar. At last, he opined that the death of the deceased is possible by that crowbar. pg. 5 15. The trial court held that the statement of the witnesses coupled with the report of the Medical Officer, and inquest report cogently suggest that the death of Darpana Halu is, indeed, homicidal. 16. Now, the trial court scrutinized the depositions of P.Ws. to ascertain if the appellant is indeed the perpetrator of the crime. 17. The prosecution relied upon the following circumstances as well as component evidence to prove its case: i. Previous enmity between the deceased and the accused; ii. The narration of the incident by the eye-witnesses; iii. Accused Halu Sandh while in Police custody had made a discloser statement about the concealment of the weapon of offence 1.e. the crowbar and the recovery thereof at his instance; iv. The Investigating Officer seized blood-stained earth and other incriminating materials from the spot which objectively determines the spot; and v. Lastly, the result of the chemical examination also points towards the guilt of the accused 18. The trial court also perused the deposition of one Mishra Khamari (P.W. 5), who is a post-occurrence witness in this case. He deposed that Halu Sandh had previously performed pg. 6 the duty of ‘jhankar dehuri’ in absence of Darpana and might have killed the deceased in lieu of a dispute over the distribution of meat on the day of Puja. He also claimed that the appellant is an alcoholic and used to remain intoxicated around the day. 19. The trial court observed the depositions of P.W. 3, P.W. 5, P.W. 6 and P.W. 11 and held that the appellant acted following the dispute between the deceased and the appellant relating to the sharing of the meat of the sacrificial goat. The contents of the FIR also corroborate the evidence of P.Ws. 3 and 5 on this aspect. Ergo, the trial court held that there was a clear motive on behalf of the appellant for the commission of murder of the deceased. Therefore, it is held that the prosecution has established that there was enmity between the deceased and the accused. 20. The trial court acknowledged another important circumstance relied upon by the prosecution i.e. the leading to the discovery of the weapon of offence i.e. the crowbar (iron rod) by the appellant. The then Investigating Officer, Mr. Ananda Bardhan Guru (P.W.15) has deposed to have apprehended the appellant from the village. While he was in custody, the appellant is claimed to have disclosed the place of concealment of the weapon of offence. P.W.15 stated that the appellant led him and the independent witnesses to his house pg. 7 where the crowbar was discovered on the wall below the khappar roof. 21. The trial court found ample corroboration of the deposition of P.W.15 in the evidence of one Motiram Sahu (P.W.13) an independent witness. Thus, the trial court held that the seizure of the weapon of offence coupled with statements of P.Ws.13 and 15 is acceptable and admissible under Section 27 of the Evidence Act. 22. The trial court observed that there is direct evidence in this and the other evidence is also candid, credible, and trustworthy which gains substantial corroboration from each other. This apart, all these witnesses have specifically given a clear picture of the entire incident to the utmost satisfaction of the court. 23. By the conjoint reading of the evidence of the prosecution witnesses including the doctor and Investigating Officer, the trial court observed that the appellant has been unequivocally implicated with the charge of injury and death of the deceased. The undiscredited testimonies of the above witnesses do not create any substantial doubt against the story of the prosecution. 24. Based on the above evidence, the trial Court held that the guilt of the appellant is established beyond reasonable doubt. pg. 8 He was, accordingly, convicted and sentenced as indicated hereinbefore. III. APPELLANT’S SUBMISSIONS: 25. Learned counsel for the Appellant contended that the version of happenings as presented by the prosecution is fabricated. It was contended that the appellant was gravely provoked by the altercation between him and the deceased on the day of puja and the appellant, in a fit of rage, struck the deceased; but only once. The deceased then fell and struck his head on the corner of the stair to sustain wounds on his head. Ergo, this is a case of culpable homicide not amounting to murder and falls under Exception1 of Section 300 I.P.C. 26. It was also submitted that the deposition of the eyewitnesses is discreditable as the informant had mentioned the names of the persons present at the site in her complaint and did not mention their names. 27. It was argued that the prosecution has not brought forth any evidence to establish the fact that the appellant had a previous enmity with the appellant and therefore, their claim to the story is discredited. 28. It was submitted that P.W.3 and P.W. 6 are interested witnesses and their depositions are not creditworthy. 29. Finally, it was submitted that the trial court, while hearing the question of sentence has fairly observed that there is no pg. 9 material that the convict is involved in any criminal case previously. IV. RESPONDENT’S SUBMISSIONS 30. Learned counsel on behalf of the prosecution countered the submissions of the appellant by contending that the submissions of the defence are baseless and mere speculations for they have not been able to bring forth any evidence to buttress their allegations. 31. It was submitted that the FIR, as filed by the informant, is credible. The complaint does not mention the names of all the people present at the spot, however, this cannot be counted as a discrepancy as the informant was not the eyewitness of the crime and got to know about the incident second-hand from people present therein. 32. It was further submitted that countered that it is not a case of grave and sudden provocation. It is further submitted that the ingredients of the second part of Section 304 Indian Penal Code speaks of knowledge and does not refer to the intention which has been segregated in the first part. Knowledge is the knowledge of the likelihood of death and to bring the offence under Clause-3 of Section 300, the prosecution has established its case quite objectively. The nature of the injuries and the circumstances under which the incident took place are relevant factors. Therefore, the offence could not be brought pg. 10 within any five exceptions of Section 300 of the Indian Penal Code and Section 304 of the Indian Penal Code could not, as such, be invoked. 33. Law is well settled that the intention or knowledge is very much necessary to render the killing culpable homicide and the burden lies on the prosecution to establish such intention or knowledge and it can be done by proof of circumstances and the act or omission. 34. Moreover, the appellant dealt repeated blows with a deadly weapon like an iron rod on the vital part of the body of the deceased. The injuries, as noted by the Medical Officer, were grievous resulting in the cause of death of the deceased. 35. The positive evidence is that the injuries were inflicted with an intention to cause death and it is the evidence of the Medical Officer that such injuries are sufficient to cause death in an ordinary course of nature. 36. However, there is no evidence worth the name on record that the actions of the deceased generated such disproportionate retaliation from the appellant. Under these circumstances, a crime of such heinous nature cannot be excused. 37. The prosecution submitted all in favour of the findings returned by the Trial Court in holding the appellant to be the author of the crime. According to the state counsel, the Trial Court on detailed analysis of the evidence on record did not pg. 11 commit any error in returning the finding that the prosecution has established its case against the appellant in causing the murder of the deceased beyond reasonable doubt and therefore, the judgment of conviction and order of sentence are not liable to be interfered with. V. COURT’S ANALYSIS AND REASONING: 38. We have carefully examined the impugned judgment, the evidence available in this case, and the contentions of both parties. 39. The case of the prosecution mainly rests upon the testimony of eyewitnesses i.e., P.W. 3 and P.W. 6. P.W. 3 claims to have been present at the purported scene and seen the appellant striking the deceased with an iron rod. The deceased fell unconscious due to the assault and bled on the temple stairs while the appellant fled. P.W.3 also stated that there was a commotion following the incident. This version was duly corroborated by P.W.6 who has presented a satisfactory description of the progression of events. 40. Now, the test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. In the case at hand, the evidentiary value of the deposition of P.W. 3 & P.W. 6 combined and corroborated with the circumstantial testimony of other P.Ws. and Chemical Examination Report, affirms the guilt of the Appellant. pg. 12 41. The principle of law is well established that a conviction can be based even on the deposition of a sole eyewitness. The rider, however, remains that to draw the inference as to the guilt of the appellant from such testimony the eyewitness shall be wholly reliable. This is the test of Section 134 of the Evidence Act. In the case of Shivaji Sahebrao Bobade v. State of Maharashtra1, the Supreme Court held that even where a case hangs on the evidence of a single eyewitness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. In the present case, the P.Ws. have presented a similar sequence of facts, without any explicit deviation from the story, in their depositions as well as the cross-examination. The defence was also not able to discredit the scheme of things as presented by them. Ergo, we can confer that nothing has been brought on record to elicit doubts on the credibility of the depositions of the eyewitnesses. 42. We agree with the inference of the trial court that the presence of witnesses on the spot was natural and it is highly improbable that they would embroider a story about their co- villagers respectively in such a ghastly crime. Plus, the 1(1973) 2 SCC 793 pg. 13 defence has not been able to rebut the story of the prosecution. 43. The evidence, in this case, is clear to the effect that the appellant was involved in this crime. The prosecution has adduced sufficient evidence to show that the appellant was indeed involved in the events, which transpired in the scheme of things. The defence has been blatantly unsuccessful in rebutting their claim. Furthermore. The samples collected during the investigation and the later post-mortem also solidify the story of the prosecution. 44. Next, Counsel for the appellant, however, argued that this was a case of sudden and grave provocation and that the offence would be one punishable under section 304 and not section 302 of the IPC. 45. Now, Exception 1 to section 300 codifies the principle that if homicide is committed in face of grave and sudden provocation emanating from the victim, the charge of murder by a person for such grave and sudden provocation from the victim reduce the charge of murder to culpable homicide not amounting to murder. Few things immediately emerge. The requirements of exception 1 to section 300 are: i. provocation ii. that such provocation must be sudden and grave and pg. 14 iii. that same should emanate from the victim except when the death of some other person than intended is caused by mistake or accident. 46. However, there is no strait jacket formula to determine grave and sudden provocation in such cases. In the case of Budhi Singh v. State of H.P.,2 the Supreme Court observed that: this principle, “The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying the primary obligation of the Court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self- control but only temporarily and that too, in proximity time of provocation. The provocation could be an act or series of acts done by the deceased to the appellant resulting in inflicting of injury.” the to 47. The Supreme Court judgment in K.M.Nanavati v. State of Maharashtra3 remains the seminal case about the test of grave and sudden provocation. It was observed as under :