The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.14 of 2017 In the matter of an Appeal under section 383 of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 26th November, 2016 passed by the learned Additional Sessions Judge, Keonjhar in S.T. Case No.24/46 of 2014. Sarat Munda …. Appellant -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Ashutosh Tripathy, Advocate For Respondent - Mr.Sitikant Mishra, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K.PANIGRAHI Date of Hearing :13.03.2023 : Date of Judgment:06.04.2023 D.Dash, J. The Appellant, by filing this Appeal from inside the Jail, has assailed the judgment of conviction and order of sentence dated 26th November, 2016 passed by the learned Additional Sessions Judge, Keonjhar in S.T. Case No.24/46 of 2014 arising out of G.R Case No. 1389 of 2013 corresponding to Patana P.S. Case No.127 of 2013 of the Court of the learned Sub-Divisional Judicial Magistrate (SDJM), Keonjhar. JCRLA No.14 of 2017 Page 1 of 8 {{ 2 }} By the same, the Appellant (accused) has been convicted for committing the offence under section 302 of Indian Penal Code (in short, ‘the IPC’) in intentionally causing the death of Abhimanyu Munda. Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.5000/- (Rupees Five Thousand), with default stipulation to undergo Rigorous Imprisonment for 6 (six) months. 2. Prosecution case: In the intervening night of 25/26.10.2013, it was around 2.30 a.m. when accused along with his parents were sleeping in the room of their house, the accused dealt two to three blows by means of an axe on the head of his father Abhimanyu which led to his instantaneous death. The elder son of the deceased i.e. the elder brother of the accused (P.W.1) lodged a written report with the Inspector-in-Charge (IIC) of Patana Police Station next morning around 9 a.m. which led to the registration of the case and commencement of the investigation. 3. In course of investigation, the IIC, taking up the investigation (I.O.-P.W.22) examined the informant (P.W.1) and other witnesses. He held inquest over the dead body by reaching at the spot and prepared the report and then the dead body was sent for post mortem examination by issuing requisition. He also seized the weapons and wearing apparels of the accused as well as the deceased. All those incriminating articles seized were sent to the State Forensic Laboratory, Rasulgarh, Bhubaneswar for examination through Court. On completion of investigation, Final Form was submitted placing the accused to face the trial for commission of offence under section 302 of IPC. JCRLA No.14 of 2017 Page 2 of 8 {{ 3 }} 4. Learned SDJM, Keonjhar having received the Final Form as above took cognizance of the said offence and after observing the formalities, committed the case to the Court of Sessions for trial. That is how the trial commenced against the accused by framing the charge for the said offence. 5. In course of trial, prosecution in total has examined twenty two (22) witnesses; out of whom as already stated P.W.1 is the informant and the other witnesses are:- P.W.2, the mother of P.W.1 and P.W.3, who is the wife of P.W.1. The co-villagers have been examined as P.W.4, 8, 11, 13 and 15. Witnesses to the inquest are P.W.4 and P.W.10 and those to the seizures of different articles in course of investigation are P.W.14, 16, 17, 18 and 20. The Doctor, who had conducted autopsy over the dead body of the deceased has been examined as P.W.19 whereas the I.O. has come to the witness box at the end as P.W.22. The prosecution besides leading the evidence by examining the witness, has also proved several documents which have been admitted in
Legal Reasoning
evidence and marked Ext.1 to 13 of those the FIR is Ext.1 and the Inquest Report is Ext.2 whereas the Post Mortem Report is Ext.9. Queries made to the Doctor and his opinion have been proved through Ext.10 and 10/2. The chemical examination report has been marked as Ext.13. 6. The Trial Court having gone through the evidence of the Doctor who had conducted post mortem over the dead body of the deceased as also taking into account other evidence has arrived at a conclusion that deceased Abhimanyu met homicidal death. In fact this aspect of the case JCRLA No.14 of 2017 Page 3 of 8 {{ 4 }} was not under challenge before the Trial Court and that is also the situation before us. It is the evidence of P.W.22 that he had gone to the spot and held inquest over the dead body of the deceased. He in his report has noted the injury upon the deceased which he noticed at that time. The Doctor who held t he post mortem examination is P.W.21. He has found two lacerated injury over the ear and right nostril wound over the left forehead with lacerated scalp fracture on parietal region. It is his evidence and report (Ext.9) that he had found exposed lacerated brain portion. The other witnesses have also stated to have seen the deceased in a severely injured condition. With such evidence on record, We find ourselves wholly in agreement with the finding of the Trial Court that the nature of death of Abhimanyu was homicidal. 7. 8. Defence plea is that of complete denial and false implication. Learned counsel for the Appellant submitted that although the witnesses P.W.1, 2 and 3 are highly interested having the aim to see the success of prosecution and to somehow see that the accused is put behind the bar which would be to their great advantage in every respect, the same has not weighed in the mind of the Trial Court, their evidence has not been scrutinized and critically examined with the high degree of care and circumspection. He submitted that with the features emerging in the evidence of these above witnesses, the Trial Court ought to have put the same for under microscopic examination. According to him, the evidence of these witnesses are not credible and safe to be relied upon. Therefore, as according to him, the evidence bristle with doubtful features as regards the happening of the incident and the role played by JCRLA No.14 of 2017 Page 4 of 8 {{ 5 }} the accused as has been stated by them, the Trial Court ought not to have been fastened the guilt upon the accused. 9. Learned counsel for the State refuting the above submission contended that the evidence of all these three witnesses viz:-P.W.1, P.W.2 and P.W.3 are quite consistent with one another and the same are also even to the slightest extent are in variance with one another on the material aspect of the case; with regard to the happening of the incident and the overt act which they attribute to the accused. He, therefore, submitted that the Trial Court did commit no error at all in concluding that the accused is liable for committing the murder of his father Abhimanyu. 10. Keeping in view the submissions made, We have carefully read the impugned judgment. We have also gone through the depositions of all the prosecution witnesses P.W.1 to 22 and have perused the documents admitted in evidence from the side of the prosecution which have been marked Ext.1 to 13. 11. It is the settled position of law that merely because the ocular witnesses are related to the deceased, their evidence is to be approached with distrust. However, when there remains strong enmity between those witnesses on one hand and the accused on the other, the duty of the Court is to scrutinize the evidence of these witnesses with due care so as to see that due to their over anxiety and grudge which they bear against the accused, the accused does not become the victim of being falsely implicated. JCRLA No.14 of 2017 Page 5 of 8 {{ 6 }} 12. In the given case, the accused is said to have committed the murder of his father and the incident has taken place inside the house. The natural witnesses thus have to be the inmates of the house. As already stated the informant (P.W.2) is the elder brother of the accused whereas the other two witnesses are the mother of the accused and last one is the wife of his brother (P.W.1). It is the evidence of (P.W.1) that in the night of occurrence, the accused, his father Abhimanyu (deceased) and mother (P.W.2) were sleeping in one room whereas he was sleeping in another room of the house. He has stated that in that night, his mother P.W.2 came to him and told that accused had killed their father by means of an axe. The response of this P.W.1 is seen to be very natural that he immediately called his other brother to the spot, by when the accused had bolted the door from inside which he opened at their request. It is also his evidence that he then found his father lying dead. He has deposed that on the next morning accused challenged him as to why he had gone to the spot to save his father and he also chased him by means of that axe to assault. The evidence of this witness has practically remained unshaken as we see from the tenor of cross-examination. We also find absolutely no such infirmity in his evidence so as to entertain the doubt for a moment in the mind that he is falsely roping in the accused when in fact no evidence is there with regard to any reason to be with this witness for doing such grave harm to the accused. P.W.2, the mother of the accused, who was sleeping with her husband (deceased) and this accused in one room is in very clear terms when we find her to have stated that accused in that night dealt blows by means of an axe on the head and face of his father causing profuse bleeding injuries that led to his instantaneous death. It is her evidence JCRLA No.14 of 2017 Page 6 of 8 {{ 7 }} that she first called her son P.W.1, who was sleeping in another room at a distance of 25 feet from the room the incident took place and told him about the incident where her husband was assaulted to death by her other son (accused). It is there in the evidence of the other witness P.W.3 who is the wife of P.W.1 that P.W.2 had gone and informed them about the incident that her husband was killed by the accused, her other son. Evidence of all these witnesses are quite consistent with one another and they do not differ on any such material particulars whatsoever. It is there in the evidence that the deceased was not happy with the deceased and was expressing his annoyance as the accused was not doing any work and earning his own livelihood from which therefore he was insisting him everytime to do some work and earn his livelihood. It is also there in the evidence that for such insistence from the side of the deceased, the accused was annoyed. P.W.2 is none other than the mother of the accused. So for her to falsely implicate her son is almost a forgone conclusion. It reminds us what is commonly said that there may be several nicked sons but hardly there is a nicked mother. The defence has not shown from the evidence that this P.W.2 was a mother of that rarest of rate type. Nothing surfaces in the evidence of above witnesses to entertain in any doubt in mind to fell upon the veracity of their evidence. With such evidence coming from the above
Decision
witnesses, we hold that basing on the same, the accused is liable to be convicted for committing the offence under section 302 of the IPC. Having said so, we are not going to further discuss the other evidence with regard to the recovery of the weapon at the instance of the accused etc. as even by holding that the evidence on that score is not reliable, there would not be of any impact to elbow the finding with regard to the JCRLA No.14 of 2017 Page 7 of 8 {{ 8 }} guilt of the accused as already been arrived at basing upon the evidence of P.Ws.1, 2 & 3 who are reliable and trustworthy. We are, therefore, of the view that the judgment of conviction and order of sentence impugned in this Appeal must receive the seal of confirmation. 13. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 26th November, 2016 passed by the learned Additional Sessions Judge, Keonjhar in S.T. Case No.24/46 of 2014 are hereby confirmed. Dr.S.K.Panigrahi, J. I agree. (D. Dash), Judge. (Dr.S.K.Panigrahi), Judge. Gitanjali JCRLA No.14 of 2017 Page 8 of 8