The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.59 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 17th May, 2012 passed by the learned Sessions Judge, Phulbani, in Sessions Trial No.213 of 2010. Kapilasa Kanhar …. Appellant ---- -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Prem Kumar Mohanty (Advocate) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE A.C.BEHERA Date of Hearing : 12.09.2023 : Date of Judgment:14.09.2023 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 17th May, 2012 passed by the learned Sessions Judge, Phulbani, in Sessions Trial No.213 of 2010 arising out of G.R. Case No.242 of 2010 corresponding to Phulbani Sadar P.S. JCRLA No.59 of 2012 Page 1 of 11 - 2 - Case No.35 of 2010 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Phulbani. 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.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for six (6) months for commission of the offence under section 302 of the I.P.C. 2. Prosecution Case:- On 11.07.2010 around 12.30 p.m., when Jaleswar Kanhar was in the cattle shed, the accused came and dealt repeated blows by means of an axe on his neck and thereby intentionally caused his instantaneous death. The son of Jaleswar, namely, Binayak Kanhar (P.W.2) then reported the matter in writing before the Assistant Sub-Inspector (A.S.I.) of Police attached to Phulbani Sadar Police Station (P.S.). The A.S.I of Police (P.W.19), who, in the absence of the Officer-in-Charge (OIC) of said P.S., was discharging the duty as such, receiving the said written report from Binayak (informant-P.W.2), treated the same as F.I.R. (Ext.1) and registering the case, took up investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.19) examined the Informant (P.W.2) and recorded his Page 2 of 11 JCRLA No.59 of 2012 - 3 - statement under section 161 of Cr.P.C. He then visited the spot and prepared the spot map (Ext.16). He also seized the blood stained earth and sample earth from the spot under seizure list (Ext.3/2). The I.O. (P.W.19) then held inquest over the dead body of the deceased in presence of the witnesses and prepared the report to that effect (Ext.2). He also sent the dead body of the deceased for post mortem examination by issuing necessary requisition. The I.O. (P.W.19) thereafter arrested this accused on 11.07.2010 around 5.30 p.m. It was stated that the accused, while in police custody, gave his statement to have kept the axe in a place known to him and said that if he would be taken to that place, he would give recovery of the axe. The statement of the accused (Ext.7) was recorded by the I.O. (P.W.19). Pursuant to the statement of the accused, the accused was said to have led the I.O. (P.w.19) and others near the straw heap and therefrom, gave the recovery of the axe, which was seized under the seizure list (Ext.8). The I.O. (P.W.19) then sent the incriminating articles for chemical examination through Court. The charge of the investigation of the case handed over by that I.O. (P.W.19) to the OIC (P.W.17), who, 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. JCRLA No.59 of 2012 Page 3 of 11 - 4 - 4. Learned S.D.J.M., Phulbani, 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 nineteen (19) witnesses during Trial. As already stated,
Facts
P.W.2, is the Informant, who had lodged the FIR (Ext.1) and he is the son of the deceased. P.Ws.3 & 12 are his cousin brothers. The co-villagers have been examined as P.Ws.1, 5, 6, 7, 8 & 14 whereas P.Ws.9 & 10 are the outsiders. The Doctor, who had conducted the autopsy over the dead body of the deceased is P.W.11 and the I.O., who has done major part of the investigation is P.W.19 whereas P.W.17 is the I.O., who submitted the final form. 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.1); inquest report (Ext.2); post mortem report (Ext.4); the so-called statement of the accused (Ext.7). The spot map and the chemical examiner’s report have been admitted in evidence and marked Exts.13 & 17 respectively. JCRLA No.59 of 2012 Page 4 of 11 - 5 - 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, on going through the evidence of the Doctor (P.W.11), who had conducted the autopsy over the dead body and his report (Ext.4), as well as the subsequent opinion given by him when that had been sought for by the I.O. (P.W.19), has arrived at a conclusion that the death of Jaleswar (deceased)
Legal Reasoning
was homicidal. We find that this aspect of the case was not under challenge before the Trial Court and that is also the situation before us. It is the evidence of the Doctor (P.W.11) that he had noticed five incised wounds over the dead body of the deceased. In his report (Ext.4), he, having indicated the dimensions and seats of such injuries, those have been stated during the Trial. The incised wounds are on head, neck, shoulder etc. The dimensions of those injures are quite significant when the seats too are vital. It is his evidence that all such injures were ante mortem in nature and might have been caused by sharp cutting weapon. He has further stated that the death of Jaleswar was on account of haemorrahage and shock from the wounds. This P.W.11 has also answered the query made by the I.O. (P.W.19) that with the seized axe, the injuries found on the body of the deceased were possible. Over JCRLA No.59 of 2012 Page 5 of 11 - 6 - and above the same, we find the evidence of the I.O (P.W.19), who held inquest over the dead body of the deceased. It is seen that this I.O. (P.W.19) in his report (Ext.2) has noted all these injuries seen over the person of the deceased in his own language. Other witnesses have also deposed to have seen the deceased with such injuries on his head, neck, shoulder etc. The above facet
Decision
of the case are not facing any challenge. In view of the above, we are left with no other option but to concur with the finding of the Trial Court that Jaleswar met a homicidal death. 8. Mr.P.Mohanty, learned counsel for the Appellant (accused), attacking the finding of the Trial Courts in in fastening the guilt upon the accused in assaulting the deceased to death by means of an axe, submitted that the Trial Court, without proper appreciation of evidence of P.W.3, who is a child witness aged about ten years, has committed grave error by relying upon his version in toto. He further submitted that although it is stated by P.W.3 to have seen the occurrence when the other surrounding circumstances, which have surfaced from his evidence would be looked into, this P.W.3, having seen the incident would seem highly improbable. He further submitted that the story narrated by P.W.3 is not at all believable in so far as the complicity of this accused is concerned. He submitted that when the evidence of P.W.3 is eschewed from consideration, even then accepting the JCRLA No.59 of 2012 Page 6 of 11 - 7 - evidence of P.W.4, there cannot be a finding that it is the accused, who had caused the death of the deceased by giving blows on his neck, head, shoulder etc. by means of an axe and as P.W.4 herself states to have not seen the incident and had arrived much later, the prosecution case cannot stand and the complicity of the accused cannot be said to have been established beyond reasonable doubt. 9. Mr.P.K.Mohanty, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt against the accused, as has been returned by the Trial Court, contended that the evidence of the child witness (P.W.3) has not at all been impeached in any manner. According to him, no such material has surfaced during his examination to indicate that he was stating so being tutored and having actually not seen the incident, he stated as per the picture portrayed before him by someone by simply memorizing. He further submitted that the evidence on record, being taken into account in their proper perspective, the presence of P.W.3 at the particular place at the time when the occurrence took place, can never be doubted. He also submitted that the evidence of P.W.3 has also received due corroboration from the evidence of P.W.4 and the evidence of the Doctor (P.W.11) and, therefore, the judgment of conviction and order of sentence are not at all liable to be interfered with. JCRLA No.59 of 2012 Page 7 of 11 - 8 - 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 19) and have perused the documents admitted in evidence marked as Exts.1 to 17. 11. Jaleswar Kanhar, having died in the incident, his son Binayak Kanhar (P.W.2) has lodged the FIR (Ext.1). It has been stated in the FIR (Ext.1) that on account of prior enmity, the accused had intentionally caused the death of Jaleswar by giving blows on his neck by means of tangia. It was indicted therein that the assault took place in the cattle shed of Kapilas Kanhar. This P.W.2 is not an eye witness and he on that day after returning home some time around 12.30 p.m. when saw the dead body of his father, his sister Malati (P.W.4), who was then crying, narrated the incident, which took place and she (P.W.4) told P.W.2 that it was the accused, who had killed Jaleswar by assaulting him with an axe. Now, coming to the evidence of Malati (P.W.4), we find her to have stated that around 12.30 p.m., Chaitanya, who has been examined as P.W.3, come and told her that accused killed her father by tangia. P.W.4 is the daughter of deceased Jaleswar and that Chaitanya (P.W.3) is Jaleswar’s nephew (younger brother’s son). So, it was natural for P.W.3 to rush to P.W.4 after seeing the JCRLA No.59 of 2012 Page 8 of 11 - 9 - murderous assault upon Jaleswar by the accused in informing all about that for further action in that regard. P.W.4 has stated that hearing from Chaitanya (P.W.3), she and Chaitanya came to that cattle shed and saw Jaleswar lying dead and accused was then going away carrying that tangia. She has stated to have raised cry, which invited the attention of the people present nearby. This P.W.3 is a child witness and his age as stated and also assessed was about ten years by then and he was reading in Class-V. His evidence is that on that day during that time, he was coming from Talasahi and in front of the house of the accused, he saw accused holding a tangia when deceased was seen putting the fence in front of his house. He has further stated that then the accused assaulted the deceased on his neck by means of tangia and he was saying that “PAISA KHALI MORA NEI JAUCHU’’. It is also his evidence that receiving the tangia blow from this accused, the deceased fell on the ground and, therefore, out of fear, he went inside the field. He too states to have disclosed all about these happenings to Malati (P.W.4) and his father. He has further stated that he again came to the spot with Malati (P.W.4), whom she was addressing as “NANI”, which is at part with the evidence of P.W.4. During cross-examination, he has clearly stated that no other outsider was present at that time and thus the prosecution cannot be blamed for not examining any other person to prove the incident. It is also his evidence that the JCRLA No.59 of 2012 Page 9 of 11 - 10 - incident took place in his presence and he was at a distance of 25- 30 feet. This P.W.3 has strongly denied all the suggestions that he was deposing under the instruction of P.W.2 and being tutored to say so to implicate the accused. Given a careful reading to the deposition of P.W.3, we find absolutely no reason to doubt his version when we too find the conduct of that child witness (P.W.3) to be quite natural. Moreover, the evidence of P.W.3 find corroboration from the evidence of P.W.4 to whom P.W.3 had gone and stated about all the happenings especially the role played and the acts done by this accused, as had been witnessed by him. The evidence of P.W.4 that on her arrival, she saw the accused leaving the place carrying a tangia is a circumstance which strengthens the version of P.W.3. Furthermore, the evidence of both these witnesses find corroboration from the evidence of the Doctor (P.W.11), who has stated to have seen good number of incised wounds on the vital part of the body such as neck etc. that those were possible by the weapon seized and examined by him at the request of the I.O.(P.W.19). On a conspectus of analysis of the evidence hereinabove, this Court finds that the prosecution has proved its case against the accused as having committed the murder of Jaleswar Kanhar beyond reasonable doubt. JCRLA No.59 of 2012 Page 10 of 11 - 11 - 12. In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 17th May, 2012 passed by the learned Sessions Judge, Phulbani, in Sessions Trial No.213 of 2010 are hereby confirmed. 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: 21-Sep-2023 17:20:21 JCRLA No.59 of 2012 Page 11 of 11