The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.93 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 September, 2012 passed by the learned Sessions Judge, Nabarangpur, in Criminal Trial No.91 of 2010. Hunkar Dhurua ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Suryakanta Dwibedi (Advocate) For Respondent - Mr.P.K. Mohanty, Additional Standing Counsel 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 17th September, 2012 passed by the learned Sessions Judge, Nabarangpur, in Criminal Trial No.91 of 2010 arising out of G.R. Case No.251 of 2010 corresponding to JCRLA No.93 of 2012 Page 1 of 11 - 2 - Chandahandi P.S. Case No.25 of 2010 of the Court of the learned
Legal Reasoning
Judicial Magistrate First Class (J.M.F.C.), Umerkote. 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 two (2) years for commission of the said offence. 2. Prosecution Case:- On 14.05.2010 night, when Tikam Dhurua (deceased) and his wife Purnima were sleeping in the bedroom of their house keeping the doors open, the accused, who happens to be the younger brother of Tikam, being armed with an axe, arrived and assaulted Tikam on his head and neck by that axe. Receiving such assault, Tikam when raised cry, his wife Purnima (informant- P.W.4) woke up from sleep and saw the accused assaulting her husband by that axe. She also raised cry, which drew the attention of other family members, who were then in the other room of the house. No sooner did Purnima (informant-P.W.4) cry, the accused took his heels carrying that axe with him. The blows given by the accused on Tikam caused his instantaneous death. JCRLA No.93 of 2012 Page 2 of 11 - 3 - Purnima (informant-P.W.4) then lodged a written report being scribed by one Trinath Dhurua (P.W.5) with the Assistant Sub-Inspector (ASI) of Police of Chandahandi Police Station (P.W.13). The A.S.I. of Police (P.W.13), in the absence of the Officer-in-Charge of that P.S., treated the same as FIR (Ext.9) and registering the case, took up investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.13) examined the Informant (P.W.4) and recorded her statement under section 161 of Cr.P.C. Having visited the spot, he held inquest over the dead body of the deceased and prepared the report (Ext.4). Other witnesses were examined at the spot and the articles, which according to him, were incriminating, were seized. The accused, who was fleeing away from the spot towards the jungle, was arrested. It was stated that the accused, while in police custody, disclosed to have kept that axe in a particular place in the roof of the house and stated that if he would be taken to that place, he would give recovery of the said axe. Pursuant to the said statement, the I.O. (P.W.13), having taken the accused to the place as shown, the axe was recovered in presence of the witnesses and seized. The dead body of the deceased was sent for post mortem examination by issuing necessary requisition and the wearing apparels of the deceased were seized on production by the police personnel, who had accompanied the dead body for JCRLA No.93 of 2012 Page 3 of 11 - 4 - said examination. On arrival of the O.I.C. of the P.S. (P.W.15), took charge of the investigation of the case was taken over by him from the A.S.I. (P.W.13). The seized incriminating article were sent for chemical examination through Court. The second I.O. (P.W.15), 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 J.M.F.C., Umerkote, 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 fifteen (15) witnesses during Trial. As already stated, the informant, who happens to the wife of the deceased and is a eye witness to the incident, has been examined as P.W.4. P.Ws.6 & 10 are the two brothers of the accused and deceased whereas P.W.7 is their father, who had immediately arrived in the room after hearing the cry of Tikam (deceased) and his wife Purnima (informant-P.W.4). P.Ws.2, 3, 8 & 9 are the witnesses to the inquest as well as the recovery of the axe at the instance of the accused pursuant to his disclosure statement. P.W.11 is the witness to the seizure of nail clippings and blood sample of the JCRLA No.93 of 2012 Page 4 of 11 - 5 - accused whereas P.Ws.12 & 14 are the witnesses to the seizure of the wearing apparels of Tikam (deceased). The first I.O. is P.W.13 and the next; who submitted the Final Form, is P.W.15. The Doctor, who had conducted the autopsy over the dead body of the deceased, has been examined as P.W.1. 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 14. Out of those; important are the FIR (Ext.9); inquest report (Ext.4); and the post mortem report (Ext.1). The disclosure statement of the accused is Ext.5 and the corresponding seizure list has been admitted in evidence and marked Ext.7. The Chemical Examiner’s report is Ext.14. 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, having found from the evidence of the Doctor (P.W.1) and other evidence, death of Tikam to be homicidal in nature, upon scrutiny of the evidence of the eye witness (P.W.4) and the immediate post occurrence witnesses such as P.Ws.6, 7 & 10 and taking all those with the circumstance as to the factum of recovery of the axe at the instance of the accused, has held that the prosecution has established the charge JCRLA No.93 of 2012 Page 5 of 11 - 6 - against the accused beyond reasonable doubt. Accordingly, the accused has been convicted for commission of under section 302 of the IPC and has been sentenced as afore-stated. In fact, the nature of death of Tikam to be homicidal was not under challenge before the Trial Court and this is also the position before us. The Doctor (P.W.1), who held the autopsy over the dead body of the deceased, has stated to nave noticed three incised wounds, two on the back of the neck and on the front of the neck; and the third one on the neck in between second and third tracheal region. It is his version that that all such injuries were ante mortem in nature. The findings of the Doctor (P.W.1) have not been challenged and the defence has flatly declined to cross- examine him (P.W.1). As regards the seats and dimensions of the incised wounds, the Doctor (P.W.1) has noted all those in his report (Ext.1). In addition to this, we find the evidence of the I.O. (P.W.13) that he having seen those injuries on the person of the deceased had noted all those in his report (Ext.4). In view of the above evidence on record, we find no difficulty in coming to a conclusion that Tikam met a homicidal death by receiving the above incised wounds.
Legal Reasoning
8. Mr.S.K.Dwibedi, learned counsel for the Appellant (accused) submitted that the evidence of the solitary eye witness, who is none other than the wife of the deceased ought not to have JCRLA No.93 of 2012 Page 6 of 11 - 7 - held by the Trial Court to be enough to fasten the guilt upon the accused. According to him, the evidence of the wife of the deceased (P.W.4), being viewed with the evidence of P.Ws.6, 7 & 8 would appear to be highly improbable and, therefore, her presence in the particular room at the relevant time in seeing the accused to have dealt blows upon the deceased ought not to have been believed by the Trial Court. He further submitted that when the evidence of P.W.4 is eschewed from consideration, the evidence of P.Ws.6, 7 & 10 cannot be relied upon to arrive at a finding that the accused is the author of the injuries received by Tikam (deceased). He further submitted that the evidence as to the recovery of the axe pursuant to the statement of the accused is not sufficient for being accepted and rather that appears to be shear manipulation. He, therefore, urged that the judgment of conviction and order of sentence impugned in this Appeal are liable to be set aside. 9. Mr.P.K. Mohanty, 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, the evidence of the wife of the deceased is free from any such infirmity and she, being a natural witness, whose presence can in no way be doubted, the Trial Court is right in relying upon her testimony, when the same also receive the JCRLA No.93 of 2012 Page 7 of 11 - 8 - corroboration from the evidence of P.Ws.6, 7 & 10 as also the circumstance of recovery of the axe at the instance of the accused and stand in support. 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 15) and have perused the documents admitted in evidence marked as Exts.1 to 14. 11. In order to address the rival submission and judge the sustainability of the finding of conviction recorded against the accused for committing the murder of Tikam, this Court is thus called upon to have a look at the evidence of Purnima (P.W.4), the wife of the deceased. P.W.4, being the wife of the accused, has said that in the relevant time, she was sleeping in the room where her husband (deceased) was sleeping. Narrating the strained relationship between her husband (deceased) and the accused, she has stated that when they were sleeping in the room, whose doors were open, the accuse came and assaulted her husband (deceased) by a tangia (axe). He too had seen the blows being given by the accused on the neck and head of her husband (deceased). The occurrence took place during summer days. So, the evidence of P.W.4 that the doors were open is not unbelievable and judicial JCRLA No.93 of 2012 Page 8 of 11 - 9 - notice of the fact can also be taken that in rural areas, that practice is being followed by many during summer season as they like to sleep in airy place to get rid of the heat. P.W.4 has stated that immediately when she raised hullah, the accused fled away and her mother, father-in-law and brother-in-law came from the nearby room. The incident, having taken place in the room during summer days and the accused, being none other than the brother-in-law of the informant and the deceased, the doubt as to identification does not arise. Be that as it may, this P.W.4 has stated that at the relevant time, a lamp was burning inside the house. This P.W.4, being cross-examined, we find no such tangible material to have been elicited to cast doubt on any part of her version. When P.W.4 has stated that the accused was not pulling on well with the deceased, it has also been stated so by the brother of the accused and the deceased during his examination as P.W.6 that there was land dispute between them. The evidence of P.W.6 provide corroboration to the evidence of P.W.4 that immediately hearing the cry, when he with his father (P.W.7) went to the room in question, they found Tikam lying dead with injuries on his neck and they saw the accused running away. The evidence of this witness is attacked on the ground that he, having stated that then it was dark and lamp was not burning, his evidence as well as the evidence of JCRLA No.93 of 2012 Page 9 of 11 - 10 - P.Ws.4 & 7 stand that they had seen the accused at the relevant time is not believable. With the relationship of the parties, when P.W.4 has said that a lamp was then burning in the room, she, had seen the accused coming to the room and assaulting her husband (deceased), according to us, is acceptable and from the evidence of P.W.6 that no lamp was then burning and it was dark, it cannot be further stretched to say that at the relevant time, when the assault upon Tikam (deceased) took place, the lamp was not burning. Moreover, when P.Ws.6 & 7 say to have seen the accused running away, they being the members of one family, which include the head of the family, no doubt arises in the mind as to the identification of the accused when it is also not acceptable for a moment to say that all the family members joined together in falsely implicating the accused in screening the actual culprit serving no real purpose. The evidence of the father (P.W.7) is with regard to his arrival in the bedroom hearing the cry and seeing the accused leaving the place is at par with the evidence of P.W.6 and no such material variance is noticed therein. Above being the state of affair in the evidence of P.Ws.4, 6, 7, we too find the evidence of P.W.10 which fully corroborate the evidence of P.Ws.6 & 7. The evidence of P.W.4, the solitary eye JCRLA No.93 of 2012 Page 10 of 11 - 11 - witness, according to us, is free from any such infirmity and that receive full corroboration from the evidence of P.Ws.6, 7 & 10. In that view of the matter, even ignoring the circumstances projected by the prosecution that the accused, pursuant to his statement while in police custody, had led the I.O. (P.W.13) and other witnesses in giving recovery of the axe, which is said to have been used in causing the injuries upon the deceased, the finding of the Trial Court that the prosecution has established the charge against the accused beyond reasonable doubt, has to receive the seal of affirmation. 12.
Decision
In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 17th September, 2012 passed by the learned Sessions Judge, Nabarangpur, in Criminal Trial No.91 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: 06-Oct-2023 10:34:26 JCRLA No.93 of 2012 Page 11 of 11