The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No. 04 of 2020 (Arising out of the Judgment of conviction dated 11th December, 2019 passed by Sri Deepak Kumar, First Addl. Sessions Judge, Rourkela in S.T. No. 12 of 2017, for the offence under section 302 of the Indian Penal Code, 1860). Etua Mundari @ Badka …. Appellant Mr. Sougat Dash, Advocate -versus- State of Odisha …. Respondent Smt. Sushama Rani Sahoo, Addl. Standing Counsel CORAM: THE HON’BLE MR. JUSTICE S.K. SAHOO THE HON’BLE MR. JUSTICE CHITTARANJAN DASH Date of Judgment : 03.10.2024 Chittaranjan Dash, J. 1. The Appellant, namely Etua Mundari @ Badka, faced the trial on the charges under Section 302 of the Indian Penal Code (in short, hereinafter referred to as “IPC”) before the learned First Addl. Sessions Judge, Rourkela in S.T. No. 12 of 2017 for committing murder of one Pradeep Kullu @ Dipu, wherein the learned Court found him guilty for the offence charged as above, convicted and sentenced him to undergo imprisonment for life and to pay a fine of ₹10,000/- (Rupees ten JCRLA No.04 of 2020 Page 1 of 13 thousand only), in default, to undergo further Rigorous Imprisonment for 2 (two) years. 2. The prosecution case in brief is that, on 04.10.2016 at about 11:15 a.m., one Ranjit Kullu (P.W.1), the Informant, who is a resident of village Jhunmur under P.S. Raibaga in the district of Sundargarh, submitted a written report before the Chhend P.S., Rourkela, informing that while his elder brother namely Pradeep Kullu @ Dipu (hereafter referred to as the “deceased”), a resident of Hatat Basti, Chhend, Rourkela, on the previous evening, between 9.00 p.m. to 10.00 p.m., was taking dinner in the house of one Sushila Kujur (P.W.3), the Appellant rushed to the house of Sushila and started assaulting his brother Pradeep Kullu by means of a bamboo stick. When Sushila tried to intervene, the Appellant threatened to assault her too, if she attempts to scream. One Chandan, a co-resident of the Basti saw the occurrence while passing in front of Sushila’s house and raised hullah alerting the residents of the Basti. Soon after, the residents of the Basti gathered at the spot and, on seeing the condition of Pradeep, took him to RGH for treatment in an autorickshaw. However, around 11.00 p.m. that night while receiving treatment, the deceased succumbed to the injuries. The Informant further reported that he came to know about the incident by receiving a telephonic information from P.W.2, one of his cousins, who is a resident of Hatat Basti. He then came to Rourkela the next day and lodged the
Legal Reasoning
FIR. As the report revealed a cognizable offence, the IIC, Gagan Bihari Biswal (P.W.12) treated the report as FIR and registered the same vide Chhend P.S. Case No. 97 of 2016, vide Ext. 1/3, and took up the investigation. JCRLA No. 04 of 2020 Page 2 of 13 3. In course of the investigation, P.W.12, the Investigating Officer (I.O.), examined the informant and recorded his statement under Section 161 of the Cr.P.C. The I.O. then proceeded to the RGH morgue, held inquest over the deceased’s body and sent the same for post-mortem examination in the presence of witnesses. The I.O. also visited the spot and prepared a spot map, vide Ext.11. He apprehended the Appellant on 4.10.2016, and arrested him later on the same day at about 11.30 p.m. On 5.10.2016, the Appellant was forwarded to the Court. In the meantime, the I.O. examined other witnesses, recorded their statements under Section 161 of the Cr.P.C., seized incriminating articles and sent the same for chemical examination. Finally, on completion of the investigation, the I.O. submitted the charge-sheet against the Appellant for commission of an offense punishable under Section 302 of the IPC. 4. The case of the defence is one of complete denial and false accusations. 5. To bring home the charge, the prosecution examined 12 witnesses in all. P.W.1 is the Informant being the brother of the deceased; P.W.2 is the scribe of the FIR and a post-occurrence witness; P.W.3 is the sole eye-witness of the occurrence; P.W.4 is a pre- occurrence witness; P.Ws. 5, 9 & 10 are post-occurrence witnesses; P.Ws.6 and 7 are seizure witnesses; P.W.8 is the medical officer who conducted the post-mortem examination; P.W.11 is the scientific officer who furnished the spot visit report and held examination of the seized materials; and finally P.W.12 is the I.O. 6. The learned trial Court having believed the evidence of the prosecution witnesses, found the prosecution to have proved its case JCRLA No. 04 of 2020 Page 3 of 13 beyond all reasonable doubt and held the Appellant guilty and convicted him awarding sentence as described above. 7.
Legal Reasoning
Mr. Sougat Dash, learned counsel for the Appellant contended that the prosecution has failed to establish the case beyond all reasonable doubts. He argued that the testimony of P.W.3, the prime eyewitness, is unreliable due to inconsistencies in her evidence and possible personal bias, as the deceased used to visit her house frequently for meals, raising questions about her impartiality. The credibility of P.W.3 is further doubtful, as her testimony remains uncorroborated by other crucial witnesses. Notably, Chandan, a co-resident of the Basti, who was specifically mentioned by P.W.3 as having witnessed the assault and called for help, was not examined by the prosecution, which leaves a significant gap in the case of the prosecution, especially when the prosecution claims there was another witness at the scene. He further asserted that, the absence of any motive for the Appellant to commit such a grievous offense weakens the prosecution’s case. The alleged accusation regarding the theft of a hen is trivial and insufficient to provoke a premeditated attack of such brutality. The testimony of P.W.4, while purportedly corroborating the incident, is questionable as he admits to not having witnessed the actual assault, making his testimony based on hearsay. Additionally, the forensic evidence, particularly the post-mortem report while showing severe injuries, does not conclusively link the Appellant to the weapon of offense or to the alleged crime. Mr. Dash concluded his argument that in the absence of clear and cogent evidence directly implicating the Appellant, the benefit of the doubt must be extended in favour of the Appellant, and the conviction under Section 302 IPC should be set aside. JCRLA No. 04 of 2020 Page 4 of 13 8. Ms. Sushama Rani Sahoo, learned Addl. Standing Counsel for the State, argued that the prosecution has successfully established the Appellant’s guilt beyond reasonable doubt through credible and formidable evidence. According to her, P.W.3, the solitary eyewitness, narrates a detailed account of the incident, clearly identifying the Appellant as the assailant and the manner in which he brutally attacked the deceased with a stick. Her testimony is corroborated by P.W.4, who although not an eyewitness to the actual assault, has confirmed seeing the Appellant in possession of the same stick used in the attack and proceeding towards the house of P.W.3, as the deceased had accused him of stealing hen. The medical evidence provided by P.W.8, the medical officer, further supports the prosecution’s case, as the nature and extent of the injuries described in the post-mortem report are consistent with the version of the eyewitness. The forensic evidence including the blood- stained stick (MO-I) and the blood type matching with the deceased, links the weapon used in the assault to the crime. Ms. Sahoo, learned ASC asserted that the argument of the defence to the effect that there is no motive behind the alleged murder sufficient to undermine the prosecution’s case is flawed, as there is the overwhelming direct and corroborative evidence. The direct evidence of the witnesses is not only consistent with their previous statements recorded under section 161 Cr.P.C. but to the overall circumstances as well as the medical evidence and the evidence so adduced by the prosecution which could not be demolished in any manner. She finally concluded that, given the strength of the eyewitness testimony, medical evidence and the corroborative circumstances, the conviction under Section 302 IPC is fully justified and the appeal is liable to be dismissed. JCRLA No. 04 of 2020 Page 5 of 13 9. Having regard to the arguments advanced by the learned counsel for the respective parties, this Court, before adverting to the culpability of the Appellant on the charge of murder, at first felt it expedient to deal with the nature of death of the deceased. 10. In this context, the post-mortem examination report proved by P.W.8, vide Ext. 7, provides clear medical findings pointing to the intentional and repeated violent attacks as the cause of death. P.W.8 observed several antemortem injuries, all of which were inflicted before the death of the deceased, indicating that the deceased had sustained significant trauma while still alive. The key findings of the post-mortem report are as follows: i) antemortem lacerated wound of size 4” × 1/2” bone deep over the left parieto frontal area of scalp ii) antemortem lacerated wound of size 6” × 1” bone deep over left parieto occipital area of left scalp iii) antemortem lacerated wound of size 10” × 1” bone deep over left occipital area of scalp iv) open fracture of skull bone of size 4” × 3” brain matter deep on left side of the skull, upon removal of haematoma v) brain matter haematoma of size 10” × 6” on left side of the brain parenchyma, upon opening of skull bones vi) antemortem lacerated wound of size 2” × 1” over left nostril. Nasal bones completely fractured into small pieces. Presence of 2 antemortem lacerated wound of size 3” × 2” JCRLA No. 04 of 2020 Page 6 of 13 bone deep and another size of 2” × 2” bone deep over occipital area of scalp 11. P.W.8’s assessment in the post-mortem report makes it clear that the injuries were inflicted with force sufficient to break the skull and fracture the nasal bones, indicating a clear intent to cause grievous bodily harm, leading to death. The nature of the injuries observed multiple stitches to the head aligns with the use of a blunt object, as opined by the fact that P.W.8 later examined the bamboo stick (MO-I) and confirmed that the injuries sustained by the deceased could indeed be caused by such an object. The cause of death was determined by P.W.8 to be coma due to head injury, resulting from the repeated blunt force trauma. 12. Furthermore, P.W.11, the Scientific Officer of the RFSL, Rourkela testifies forensic corroboration to the medical evidence under Ext. 8 that further reinforces the medical findings and adds clarity to the homicidal nature of the crime. It is also noted that the injuries inflicted upon the deceased as explained by P.W.3 in her sworn testimony, matches with that of the injuries detected in the post-mortem examination report. Moreover, the time since death, assessed as being within 12 to 24 hours prior to the spot visit, correlates with the time of the incident as described by witnesses. P.W.11’s forensic assessment of the bamboo stick (MO-I) as the weapon of offense, with visible bloodstains on its surface, also connects the weapon to the injuries and to the deceased. Based on the medical and forensic evidence, it is conclusively established that the death of the deceased was indeed homicidal in JCRLA No. 04 of 2020 Page 7 of 13 nature. It is also apposite to note that the defence has not disputed the nature of the death. 13. Coming to the authorship of the crime, the sworn testimonies of P.W.3 and P.W.4 provide a detailed and coherent narrative of the events leading up to the fatal assault on the deceased, that aligns a consistent case of the prosecution into the pre-occurrence scenario and the eyewitness account of the attack. 14. In her sworn testimony, P.W.3 provides a vivid account of the events as they unfolded inside her house as the eyewitness to the attack. She describes how the deceased, who referred to her as “Didi” (elder sister), had come to her house for dinner on the night of the incident. At around 9.00 p.m., the Appellant barged into her house and began shouting accusations at the deceased about the alleged theft of Anita’s hen. This immediately escalated into a physical attack, where the Appellant repeatedly assaulted the deceased with a stick, inflicting about 10-15 blows directly to his head. P.W.3’s description of the attack is consistent with the medical findings provided by P.W.8, who confirmed that the deceased sustained severe head injuries that were fatal. P.W.3 further describes how she was threatened by the Appellant when she attempted to intervene, forcing her to remain silent and watch the assault unfold. Her fear and helplessness during the attack add emotional weight to her testimony, highlighting the violent and intentional nature of the Appellant’s actions. P.W.3 also deposed that one Chandan, a co-resident of the Basti, witnessed the incident from outside the house and shouted for help, which prompted the arrival of other residents of the Basti, who later helped to transport the injured-deceased to the hospital. Withdrawal of the examination of the said person, namely Chandan does not in any JCRLA No. 04 of 2020 Page 8 of 13 manner pose abortive to the case of the prosecution as the evidence of the post-occurrence witnesses sufficiently suggest their presence at the scene of occurrence, upon hearing Hullah. The fact that P.W.3 identifies the stick (MO-I) used in the assault linking directly to the Appellant substantially corroborates the kind of weapon used in the crime so also the medical findings presented by P.W.8. 15. P.W.4’s testimony in sequel offers significant insight into the events just prior to the assault on the deceased. He describes being near a temple with his friends Tapan Sahoo, Bichitra and Muna, when they observed the Appellant in an inebriated state. The Appellant was verbally abusing the deceased for having been accused of stealing one Anita’s hen. He also mentioned that he was going to kill the deceased. This confrontation sets the tone for the impending violence, as the Appellant was clearly agitated and armed with a bamboo stick, later identified as the weapon used in the crime as MO-I. P.W.4, along with his companions attempted to intervene at this stage by confronting the Appellant and even removing the stick from his possession, temporarily diffusing the situation. However, despite the intervention, the Appellant left the scene with the stick only to later to commit the murder. The fact that P.W.4’s version is consistent to his previous statement recorded under Section 161 Cr.P.C. so also to the substratum of versions of others who were present with him such as Tapan Sahoo and Muna strengthens the reliability of his version of events. This collective statement indicates that there was prior animosity between the Appellant and the deceased, thereby establishing a motive for the attack. The confrontation over the alleged theft of hen, the Appellant’s drunken JCRLA No. 04 of 2020 Page 9 of 13 state and his possession of the weapon, all foreshadow the violence that soon followed. 16. It is pertinent to note that, although P.W.4 was not an eyewitness to the assault itself, his testimony provides crucial corroboration of P.W.3’s testimony, particularly in establishing the pre-occurrence sequence of events and linking the Appellant to the weapon, MO-I. While P.W.4 admits in the cross-examination that he was at his own house at the time of the actual occurrence and did not witness the assault, he confirms that he saw the Appellant in possession of the stick prior to the incident going towards the deceased with an intention to kill him. His observation of the Appellant’s agitated behaviour and possession of the weapon ties the Appellant to the crime that followed thereupon. Moreover, P.W.4’s testimony is strengthened by the corroborative statements of the individuals who were with him near the temple. 17. The testimonies of P.W.3 and P.W.4, when read in conjunction with the medical and scientific reports, significantly fortify the prosecution’s case against the Appellant. It directly establishes the violent and deliberate nature of the assault, confirming the presence and aggressive behaviour of the Appellant before the attack. 18. To reiterate, these testimonies are further corroborated by the medical findings of P.W.8, which describe the severe and fatal head injuries sustained by the deceased, consistent with a brutal assault using a blunt object. P.W.11’s forensic examination, as per Ext. 8, along with the RFSL report in Ext.14, confirms the presence of bloodstains at the crime scene matching the blood type of the deceased, reinforcing P.W.3’s statement of the assault taking place inside her house. The JCRLA No. 04 of 2020 Page 10 of 13 alignment between the eyewitness accounts, the nature of the injuries, and the forensic evidence leaves little room for doubt. P.W.11’s expert opinion aligns with the findings of P.W.8, the medical officer, regarding the cause of death, was the violent impact by a hard object on the vital parts of the deceased’s body, specifically the head, unequivocally establishes the medical officer’s assessment of the injuries. The location and nature of the bloodstains, as well as the condition of the body upon P.W.11’s examination, suggests a violent confrontation, confirming that the victim had been attacked with considerable force, consistent with the injuries described by P.W.8. The nature of injury reciprocates the fact that the attacker wanted the deceased to do away with his life. The deliberate and sustained nature of the assault, as described by P.W.3 paralleled by the forensic and medical evidence, conclusively points to the Appellant’s guilt in the murder of the deceased. 19. The Apex Court in the matter of Chandan vs. The State (Delhi Admn.) reported in [2024] 4 S.C.R. 94, has held that – “In Shivaji Genu Mohite v. State of Maharashtra, AIR 1973 SC 55, it was held that it is a well-settled principle in criminal jurisprudence that when ocular testimony inspires the confidence of the court, the prosecution is not required to establish motive. Mere absence of motive would not impinge on the testimony of a reliable eye- witness. Motive is an important factor for consideration in a case of circumstantial evidence. But when there is direct eye witness, motive is not significant. This is what was held: “In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a JCRLA No. 04 of 2020 Page 11 of 13 reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye-witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy”