The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.635 of 2011 the judgment passed by (An appeal U/S.374 of the Code of Criminal Procedure, 1973 against Janab Mohammed Ajmal, Additional Sessions Judge, Rourkela in S.T. Case No.125 of 2010 corresponding to G.R. Case No.891 of 2014 arising out of Uditnagar P.S. Case No.58 of 2010 of the Court of learned S.D.J.M., Panposh) Agasti Behera … -versus- Appellant State of Orissa … Respondent For Appellant : Mr. P. Das, Advocate For Respondent : Mr. P.K. Mohanty, ASC CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :05.01.2024 DATE OF JUDGMENT:02.04.2024 G. Satapathy, J. 1. Feeling aggrieved by the impugned judgment of conviction and order of sentence dated 16.08.2011 passed by the learned Additional Sessions Judge, Rourkela in Sessions Trial No.125 of 2010 convicting the appellant for offence punishable U/S.302 of IPC CRLA No.635 of 2011 Page 1 of 23 and sentencing him to undergo imprisonment for life thereunder, the appellant named above has preferred this appeal. An overview of prosecution case: 2. One Sisir Kumar Bala (hereinafter referred to as the “deceased”) was residing with his family in Haripurbasti under Uditnagar Police Station, Rourkela and his sister-in-law P.W.1 (sister of wife) was staying nearby his house. P.W.1 was having some kind of relationship with one Agasti Behera (hereinafter referred to as the “convict”) and on this issue, on 31.05.2010 at about 10.45 PM in the night, there was an altercation between the convict and the deceased in front of the house of P.W.2-Kamalakanta Mohanty, as a result, the convict attacked and stabbed on the chest and leg of the deceased by means of a knife (MOI). The neighbour of the deceased removed him to hospital where he was declared as brought dead. On this incident, P.W.5-Nalini Bala, the wife of the
Facts
deceased lodged an FIR under Ext.1 on the intervening night of 31/01.06.2010 before IIC, Uditnagar Police CRLA No.635 of 2011 Page 2 of 23 Station, who registered PS Case No.58 of 2010 against the convict for commission of offence punishable U/Ss.341/294/302 of IPC and entrusted the investigation to SI of police, P.W.21-Tushil Majhi, who in the course of investigation, examined the informant and witnesses, visited the spot, held inquest over the dead body and sent it for Post Mortem examination, arrested the convict, recovered and seized MOI (knife) as well as other incriminating materials, such as wearing apparels of the deceased and convict, and sent such incriminating materials to RFSL, Sambalpur for chemical examination(CE) and, accordingly, obtained CE report under Ext.15. Finally, on conclusion of investigation, P.W.21 submitted charge-sheet against the convict for commission of offence punishable U/Ss.341/294/302 of IPC under which cognizance was taken upon finding sufficient materials resulting in trial in the present case, when the convict denied to plead guilty to the charge for aforesaid offences. This is how the trial commenced. CRLA No.635 of 2011 Page 3 of 23 3. In support of the charge, the prosecution examined 21 witnesses, relied upon 15 documents under Exts.1 to 15 and identified Material Objects vide MOI to V as against no evidence whatsoever by the defence. Of the prosecution witnesses examined in this case, PW5 is the informant, P.Ws.7 and 8 are the son and daughter of the deceased as well as projected as eye witnesses to the occurrence, P.W.9 is the sister- in-law of the deceased (wife of co-brother-in-law), P.W.12 is the co-brother-in-law of the deceased, P.W.1 is the sister-in-law of the deceased, who was having some kind of relationship with the convict, P.W.2 is the neighbour of the deceased, P.Ws.3 and 4 are the son and wife of P.W.2, P.Ws.6 and 15 are the witnesses to the occurrence, P.W.13 is the witness to the inquest, P.Ws.11, 14, 17 and 18 are the police personnel-cum- witness to the seizure, P.W.19 is an independent witness to the seizure, whereas P.W.20 is the witness to the disclosure statement of the convict, P.W.16 is the Doctor, who conducted PM examination on the CRLA No.635 of 2011 Page 4 of 23 dead body of the deceased and lastly, P.W.21 is the investigating officer. 4. The plea of the appellant-convict in the course of the trial was one of the complete denial and false implication. 5. After appreciating the evidence on record upon hearing the parties, the learned Additional Sessions Judge, Rourkela convicted the appellant for offence U/S.302 of IPC, while acquitting him for rest of the offences U/Ss.341/294 of IPC and accordingly, sentenced him to undergo life imprisonment. In recording the conviction, the learned Additional Sessions Judge has mainly relied upon the evidence of P.Ws.5, 7, 8, 9 and 12. Rival Submissions: 6. In assailing the impugned judgment of
Legal Reasoning
After having considered the rival submissions, this Court has not only carefully perused the impugned CRLA No.635 of 2011 Page 8 of 23 judgment of conviction, but also has gone through the evidence extensively and minutely to examine the legality of the conviction and sentence of the appellant for the charge of murder. There is no dispute about the learned trial Court convicting the appellant by mainly relying upon the evidence of P.Ws. 5, 7 to 9 and 12 and before proceeding to re-appreciate their evidence, this Court has absolutely no difficulty in arriving at a conclusion that the deceased had suffered homicidal death, since it is apparent from the evidence of Doctor-cum-P.W.16-Dr. Meera Samal conducting postmortem examination on the cadaver of the deceased, that the cause of instantaneous death of the deceased was due to cardiogenic shock following stab wound into the heart. P.W.16 has further testified in the Court that the injury on the body of the deceased was possible by the knife(MO-I) produced before her. The defence has only cross-examined to dispute about non-examination of knife by the doctor, but it had never disputed homicidal death of the deceased. In view of the evidence of PW16, the oral evidence of CRLA No.635 of 2011 Page 9 of 23 other witnesses and the documentary evidence of F.I.R., Post Mortem Report and report of casualty doctor under Ext.11, there cannot be any dispute about the homicidal death of the deceased. Hence, this Court concurs with the finding of the learned trial Court to the effect that the prosecution has established the homicidal death of the deceased beyond all reasonable doubt. 8. Adverting to the next and important challenge of the appellant against the finding of the learned trial Court holding him responsible for the homicidal death of the deceased by mainly relying upon the evidence of related witness, this Court reminds that law has been well settled that merely because a witness is a related witness, his evidence cannot be disbelieved because a related witness may not be interested one, but on the other hand, the interested witness on the expectation of deriving some benefit from the result of some litigation may see his interest directly or indirectly getting the accused punished due to prior enmity or for other reasons and thereby, has a motive CRLA No.635 of 2011 Page 10 of 23 to falsely implicate the accused. However, in a criminal case, it is often seen that commission of offence is witnessed by the close relative(s) of the victim, whose presence at the scene of occurrence would be natural and therefore, evidence of such witness(es) cannot automatically be discarded by labeling them as interested witnesses. In the case of a related witness, the Court has to take great care and circumspection to evaluate testimony of such witnesses to see as to whether the testimony of such witnesses is inherently tainted or has any element of false implication to take advantage or to settle the grudge/enmity or for some other reasons, but when the testimony of interested witnesses, who may be eye witness is consistent and reliable, their evidence cannot be discarded, rather the same has to be relied upon. 9. In this case, the testimony of P.Ws.5, 7 to 9 and 12 has been challenged by the appellant as the evidence of interested witnesses, but P.W.5 is none other than the wife of the deceased and her presence may be natural at the scene of occurrence. P.W.5 in CRLA No.635 of 2011 Page 11 of 23 her testimony has stated that when her husband went outside of the house to clean his hands at about 10.45 P.M. in the night, she heard ho-hulla (commotion) and rushed to the spot, but found him (deceased) lying with bleeding injuries and the accused was standing there being armed with a knife and when they tried to snatch the knife from his possession, he declared to give blows with it and her husband raised alarm ‘Marigali Marigali’ (screaming) and hearing his voice, nearby persons gathered there. The testimony of P.W.5 also transpired that in the evening at about 4.00 P.M. on the occurrence day, the accused had declared before her to kill the deceased as he was challenging him pertaining to his(convict) relationship with P.W.1, who is her sister and the accused dealt blows to her husband pertaining to his relationship with P.W.1. In the cross-examination, the defence has tried to contradict the witness by giving suggestion that she had not seen the occurrence, but on a careful perusal of the evidence of P.W.5, this Court, however, does find P.W.5 to have been contradicted by the CRLA No.635 of 2011 Page 12 of 23 defence with regard to convict standing there holding a knife and that when they tried to snatch the knife, the convict threatened them and that her husband raised hullah “MARIGALI MARIGALI” and that in the occurrence evening at about 4PM, the convict threatened her husband to kill by taking note of his(convict) relationship with PW1. This Court, however, finds from the evidence of PW5 that the convict dealt blows to her husband pertaining to his(convict) relationship with PW1 and such piece of important evidence of PW5 describing the convict to have dealt blows to the deceased, was not at all demolished by the defence in any manner. It is, therefore, very clear that the evidence of P.W.5 with regard to accused-convict dealing blows to her husband pertaining to his(convict) relationship with P.W.1 could not be contradicted by the defence and thereby, in the aforesaid piece of un-demolished evidence, the role of PW5 as a eye witness to the occurrence cannot be disputed. CRLA No.635 of 2011 Page 13 of 23 10. P.Ws.7 and 8 are none other than the son and daughter of the deceased and it appears from the evidence of PW7 that on 31.05.2010 at about 10.45 P.M. his father went outside to clean his hands as he was about to take dinner and he also accompanied his father, but he was asked by his father to wait and while he was in his house, after five minutes, he(PW7) heard alarming sound of his father ‘Marigali Marigali’ (screaming) and when he reached there, he saw his father lying there and the accused was dealing blows by a knife on his chest and then they intervened and tried to snatch away the knife from the possession of the accused, but the accused threatened them and thereafter his mother raised hulla and the accused threw away the knife over the railway track which is very near to the spot and fled away. Similarly, P.W.8 in her testimony has stated that she rushed to the spot and found the accused giving blows by a knife on the chest of her father by giving successive blows. However, on a comparative reading of evidence of P.Ws.7 and 8 on the face of evidence of P.W.21-the CRLA No.635 of 2011 Page 14 of 23 I.O., it appears that P.Ws.7 and 8 have been contradicted by the defence with regard to the evidence of accused giving blows to the chest of the deceased by a knife. 11. On the other hand, the evidence of P.W.9 transpires that on 31.05.2010 at about 10.45 P.M., the occurrence took place and on hearing alarming sound of the deceased and P.W.7, they rushed to the spot and found the accused to have already murdered the deceased and the convict was armed with a knife by then and the deceased was having pool of blood. In addition, P.W.9 has of course stated in his evidence that the convict had dealt blows on the chest and leg of the deceased, but the defence has contradicted him with respect to accused dealing blows by a knife to the deceased. However, his evidence with regard to the deceased lying with injury at the spot and the accused was armed with a knife remains uncontroverted and un-contradicted. A steady scrutiny of evidence of P.W.12 would, however, only lead to contradict his evidence on a material point to suggest him to have CRLA No.635 of 2011 Page 15 of 23 not seen the convict giving blows to the deceased by a knife, but his evidence cannot be disputed with regard to deceased lying injured at the place of occurrence. In such circumstance of evidence, especially on a cumulative and joint reading of evidence of P.Ws. 5 and 9, even by taking the submission advanced for the appellant, it appears that the evidence of P.W.5 with regard to “convict dealing blows to her husband pertaining to his relationship with P.W.1” and the evidence of P.W.9 with regard to “the convict had already murdered the deceased and by then he was armed with a knife and he (convict) dealt blows on the chest and leg of the deceased” neither could be disputed nor could be contradicted by drawing their attention and proving the same as contradictions and therefore, even by eschewing the evidence of P.Ws.7, 8 and 12 with regard to they not to have seen the convict dealing blows on the deceased, the evidence of P.Ws. 5 and 9 remains uncontroverted on the point that the convict dealt blows to the deceased on his chest and leg, which also found corroborated by the CRLA No.635 of 2011 Page 16 of 23 medical evidence of Doctor-P.W.16, whose evidence clearly reveals that the deceased was stabbed on his chest and leg. It is, therefore, clear that the evidence of eye witness PWs. 5 & 9 on material aspect is found credible and worthy of acceptance and it is also established beyond all reasonable doubt by the prosecution that the convict had dealt blows to the deceased by means of a knife (MO-I). 12. It is, however, argued that the prosecution has not been able to reveal the motive behind the crime, but such assertion of the appellant appears to be insignificant because it appears from the evidence on record that the convict was in some kind of relationship with P.W.1 and the deceased was opposing to such relationship. Even the defence has also given suggestion to P.Ws. 5, 9 and other witnesses being the family members of the deceased that the accused refused to marry P.W.1 and out of that grudge, this false case has been foisted. Further, P.W.9 in her evidence has also made it clear that the accused was having relationship with P.W.1, which CRLA No.635 of 2011 Page 17 of 23 was never disputed by the defence in cross- examination. Further, PW21 in his evidence has also testified that during investigation he could know that the deceased was having love relationship with his sister-in-law which was never challenged by the defence in cross-examination. The above evidence clearly suggests that there was a motive behind the commission of crime by the convict, since the deceased was opposing to the relationship of the convict with P.W.1, who is the sister-in-law of the deceased. Another submission was also advanced on behalf of the appellant with regard to delay in lodging of F.I.R., but this Court is never in dilemma to reject such submission advanced for the appellant inasmuch as, the occurrence in fact took place at about 10.45 P.M. and the F.I.R. was lodged at 2.00 A.M. in the midnight, which means after 3 hours 15 minutes of the occurrence. It is quite natural for a lady, who had lost her husband just 3 hours ago would definitely like to take her husband to hospital first in the pursuit of saving her husband. Further, the Police Station is CRLA No.635 of 2011 Page 18 of 23 around one and half kilometers from the place of occurrence and the hospital must have been at some distance. In this situation, especially when a lady has to take her injured husband (deceased) to hospital and thereafter learning him to have died, she must have to take other male members of her family to go to the Police Station in the midnight and therefore, the time taken by the informant-P.W.5 to lodge an F.I.R. for around 3 hours 15 minutes is quite natural and cannot be considered that delay has occasioned to manipulate or fabricate the F.I.R. Further, neither any suggestion was given to the informant-P.W.5 about delay in lodging of F.I.R. nor had any cross-examination been made to P.W.5-informant on this score. Merely because the defence has suggested to the I.O. that there was a delay in lodging of F.I.R., it would not make any dent to the veracity of the prosecution case to suggest that there was a delay in lodging of F.I.R. to insert the name of the convict. True it is that the evidence of recovery of MO-I does not inspire any confidence of the Court, but even after excluding the CRLA No.635 of 2011 Page 19 of 23 evidence of recovery of MO-I, the prosecution has still established another important circumstance against the convict and that is the most important circumstantial evidence available against the convict, which is found from the evidence of P.Ws.19 and 21 as their evidence unambiguously transpires about the seizure of wearing apparels of the convict which consists of a blue colour jean pant and black colour ganji and the same have been identified by P.W.21 as Mos.-II and V, but the seizure of Mos.-II and V have never been disputed by the defence. On the other hand, MOs.II and V and the napkin (towel) which was worn by the deceased at the time of occurrence identified as MO-IV, was sent to RFSL, Ainthapali, Sambalpur and the chemical examination report was received vide Ext.15. It is also not disputed that the accused was arrested after 17 hours of the occurrence at about 5.00 P.M. on 01.06.2010 and his wearing apparels MO-II and V were seized by P.W.21 along with the biological materials, but the chemical examination report Ext.15 discloses presence of CRLA No.635 of 2011 Page 20 of 23 human blood stains of B-Group on MO-II and human blood on MO-V as well as on MO-III, the pair of chappal of the accused-convict and human blood of B- Group on MO-IV, which was the napkin of the deceased, but the convict could not give any explanation as to the presence of human blood stains of B-Group on his jean pant and human blood stain on his ganji and chappal, either by leading any evidence to dispute the same or giving any plausible explanation in his statement U/S. 313 of Cr.P.C., except giving only routine answer to question No.26 in his such statement as “false”. This is a strong piece of circumstantial evidence which incriminates the accused/convict in this case. 13. On a conspectus of the evidence available on record together with the critical analysis of discussions made hereinabove, it appears to the Court that the informant-cum-wife of the deceased had lodged an F.I.R. promptly after the occurrence within a reasonable time and her evidence with regard to the convict dealing blows to her husband and causing CRLA No.635 of 2011 Page 21 of 23 injury to the chest and leg of the deceased is squarely corroborated by the evidence of P.W.9 which receives ample corroboration from the medical evidence of PW16. Besides, the prosecution has also established the motive behind the crime due to the opposition of the deceased for the relationship of convict with his sister-in-law (P.W.1), and consequently, the non- explanation of the convict to the circumstance of finding blood stains of the deceased on his wearing apparels i.e jean pant and human blood on chappal and t-shirt persuade this Court to infer that the prosecution has established its case against the convict for committing murder of the deceased beyond all reasonable doubt. Thus, by no stretch of imagination, the conviction of the appellant cannot be considered to be unsustainable in the eye of law and therefore, the conviction and sentence of the appellant having been rendered on proper appreciation of the evidence by the learned trial Court, the same needs no interference in this appeal. CRLA No.635 of 2011 Page 22 of 23 14. Resultantly, the appeal being devoid of any merit stands dismissed on contest. As a logical sequitur, the impugned judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Rourkela in Sessions Trial No.125 of 2010 are hereby confirmed. 15. Since the appellant is on bail upon appeal, his bail bonds stand cancelled and he is directed to surrender to custody forthwith, failing which the trial Court may take necessary steps to recommit the convict to custody. D. Dash, J. I Agree. (G. Satapathy) Judge (D.Dash) Judge Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 03-Apr-2024 19:12:24 Orissa High Court, Cuttack, Dated the 2nd day of April, 2024/Subhasmita CRLA No.635 of 2011 Page 23 of 23
Arguments
conviction, Mr. Pratik Das, learned counsel for the appellant-convict has submitted that the impugned judgment of conviction is manifestly unjust and unreasonable, since the learned trial Court has ignored the material evidence and relevant documents which CRLA No.635 of 2011 Page 5 of 23 supports the case of the appellant and it has failed to appreciate the fact that motive is an essential feature in the present case, but the learned trial Court has erroneously held that motive in the instant case is immaterial and irrelevant. It is further submitted by Mr. Das that the learned trial Court has placed much reliance on the evidence of related witnesses P.Ws. 5, 7 to 9 and 12, but it has erroneously discarded the evidence of independent witnesses, who are material witnesses to reaffirm the innocence of the appellant. It is also submitted that P.W.1 is one of the important witness because it is on the backdrop of her evidence, the appellant can be found to be innocent since it is alleged that due to opposition of relationship between P.W.1 and the convict, the convict murdered the deceased and similarly, the immediate neighbour of the deceased-cum-P.W.2, who even though projected as an eye witness to the occurrence, has not supported the prosecution case, so also P.Ws. 3, 4 and 6, who are not only the immediate neighbours of the deceased, but also are independent witnesses and CRLA No.635 of 2011 Page 6 of 23 they have revealed the true genesis of the case in their evidence but, disbelieving these witnesses without any reason, the learned trial Court has laid much emphasis on the evidence of interested witnesses like P.Ws.5, 7 to 9 and 12 and erroneously convicted the appellant and thereby, the conviction of the appellant is unsustainable in the eye of law. It is also submitted for the appellant that P.Ws. 7 and 8, on whose evidence the learned trial Court has given much emphasis, had been examined by the IO after three days of the occurrence without any rhyme and reason and there was an unexplained delay in lodging of F.I.R. which cast serious doubt in the prosecution case and these loopholes cannot be plugged in by the prosecution and therefore, the evidence of P.Ws.7 and 8 should have been eschewed from the zone of consideration to find out the guilt of the convict. In summing up his argument, Mr. Das has prayed to allow the appeal and acquit the appellant of the charge of murder of the deceased by setting aside the impugned judgment of conviction and order of CRLA No.635 of 2011 Page 7 of 23 sentence. On the other hand, Mr. P.K. Mohanty, learned ASC, however, ridiculing the submission of appellant has submitted that there is absolutely no rule of law that the evidence of related witness cannot be relied upon, if the same is found to be reliable and the same can be relied upon by the prosecution and in this case, not only P.Ws.5, 7 to 9 and 12 have supported the prosecution case, but also have revealed in their evidence describing the act of the convict in committing murder of the deceased and there is ample evidence on record to indicate that the motive behind crime is due to the opposition of the deceased to the relationship of the convict with his sister-in-law, which has been squarely stated by the witnesses and the learned trial Court has rightly appreciated the evidence of eye witnesses and accordingly, convicted the appellant for the charge of murder, which requires no interference in this appeal. Analysis and Findings of this Court 7.