The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.19 of 2011 (An appeal U/S.374(2) of the Code of Criminal Procedure, 1973 against the judgment passed by Shri S.N. Sahu, Additional Sessions Judge, Balangir in Sessions Case No.31/20 of 2009 corresponding to G.R. Case No. 615 of 2008 arising out of Balangir Sadar PS Case No.171 of 2008 of the Court of SDJM, Balangir) Surendra Sa … Appellant -versus- State of Orissa … Respondent For Appellant : Mr. B.K. Ragada, Advocate For Respondent : Mr. P.K. Mohanty, ASC CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :09.10.2023 DATE OF JUDGMENT:04.12.2023 G. Satapathy, J. 1. This appeal by the convict seeks to assail the judgment of conviction and order of sentence passed on 13.10.2010 by learned Additional Sessions Judge, Balangir in Sessions Case No.31/20 of 2009 convicting CRLA No.19 of 2011 Page 1 of 16 the appellant for offence U/S.302 of IPC for having committed murder of the deceased Harishankar Rana and sentencing him to undergo imprisonment for life with fine of Rs.2,000/- in default whereof, to undergo Rigorous Imprisonment (RI) for further one year. An overview of prosecution case 2. On 09.09.2005, the appellant had assaulted PW9 by means of Bhujali and he was, accordingly, convicted by the learned trial Court in the aforesaid criminal case SC No. 130/15 of 2006 in which Harishankar Rana (hereinafter referred to as the “deceased”) had tendered evidence against the appellant as an eye witness to the occurrence. On this issue, the appellant was having ill feeling against the deceased and bearing grudge for this event, on 05.09.2008 at about 2 PM, when the deceased was witnessing playing of cards in his village Sargad near the house of Muni Behera, the appellant came there by holding a Katara and dealt blows on the left cheek and waist of the deceased by such Katara causing profuse bleeding and injuries to the CRLA No.19 of 2011 Page 2 of 16 deceased, who was, accordingly shifted to District Headquarter Hospital, Balangir. On this incident, at about 6 AM on the next day, i.e on 06.09.2008, the father of the deceased
Facts
namely Parikhita Rana (PW5) lodged an FIR (Ext.1) against the appellant before the IIC, Balangir Sadar PS and, accordingly, Balangir Sadar PS Case No.171 of 2008 was registered and the matter was investigated into. In the course of investigation, on police requisition, PW10- Dr. Nirmal Chandra Naik recorded the dying declaration of the deceased and on the next day of occurrence, the deceased was shifted to Burla, where he succumbed to injuries and, accordingly, inquest was done over the dead body of the deceased and post mortem was conducted. The Investigating Officer seized the weapon of offence Katara (MOI) as also the wearing apparel of the deceased and the shirt of the appellant suspected to be stained with blood of the deceased from his house and the same were sent to RFSL, Sambalpur for chemical examination which was received vide Ext.14. On completion of CRLA No.19 of 2011 Page 3 of 16 investigation, PW14 submitted charge-sheet against the appellant for offence U/S.302 of IPC. 3. On finding prima facie material upon going through the charge-sheet, the learned SDJM, Balangir took cognizance of offence U/S.302 of IPC and committed the case of the appellant together with all the prosecution papers to the Court of Sessions by complying the committal procedure. This is how the appellant was sent up to trial in the aforesaid case and the trial commenced after the appellant denied to the charge for offence U/S. 302 of IPC. 4. In support of the charge, the prosecution examined altogether 16 witnesses and exhibited 16 documents in evidence under Exts.1 to 16 as well as identified 5 objects vide MOI-V as against no evidence whatsoever by the defence. Of the witnesses examined, PWs.1 to 4 and 6 are cited as eye witnesses, PW5 is the informant, whereas PW8 is an independent witness to the dying declaration of the deceased recorded by Doctor- PW10. PW9 is the injured in the former case against the CRLA No.19 of 2011 Page 4 of 16 appellant in SC No. 130/15 of 2006 and he is examined in this case to prove the motive of the appellant to commit the offence. PWs.11 and 12 are Doctors, out of whom, PW.11 had conducted post mortem over the dead body of the deceased, whereas PW.12 had examined and furnished the injury report of deceased. PWs.13 to 16 were the police officers entrusted with the investigation. The plea of the appellant was denial simpliciter and false implication. 5. After appreciating the evidence on record upon hearing the parties, the learned Additional Sessions Judge, Balangir convicted the appellant for commission of offence punishable U/S.302 of IPC by mainly relying upon the ocular testimony of eye witness PW6 and the evidence of PWs.8 and 10 stating about the dying declaration of the deceased recorded under Ext.4 as well as the evidence of motive as spoken by PWs.6 and 9. Rival Submissions 6. In assailing the impugned judgment of
Legal Reasoning
After having considered the prosecution to have established the homicidal death of the deceased, the next question required to be answered in this case is who was responsible for the homicidal death of the deceased. In this regard, albeit prosecution had examined PWs.1 to 4 as eye witnesses to the occurrence, but they deserted CRLA No.19 of 2011 Page 10 of 16 the prosecution by not supporting its case and their evidence would go only to say that they learnt about the occurrence from others that the appellant killed the deceased. However, PW6, the mother of the deceased was another eye witness to the occurrence and her evidence transpires that on the relevant day and time while her son was witnessing playing of cards in front of the house of Muni Behera, the appellant Surendra dealt a Katara blow to the left side cheek and another blow to the right side waist of her son and she raised hullah. The defence although had cross examined PW6, but neither it could demolish her evidence nor was anything brought/elicited by it from her mouth to say that she was not an eye witness to the occurrence. Further, it was also elicited from her mouth that she had seen two injuries on the body of her son i.e. on the left side of cheek and right side of waist. According to the father of the deceased, PW5, on hearing hullah, he came outside the house and was informed PW6 that the appellant assaulted his son by means of Katari on his left side cheek and right side waist CRLA No.19 of 2011 Page 11 of 16 which clearly corroborates the evidence of PW5 who testified in Court that he saw severe injuries on the left side cheek and waist of his deceased son which was also elicited in cross-examination by the defence. 9. Yet another important item of evidence is the motive behind crime which was not only stated by PW6, but also reiterated by PW9. As per the evidence of PW6, her son had given evidence in a case against the appellant in which the appellant was convicted, which evidence was reiterated by the injured victim of that case in this case as PW9 by testifying in the Court that in the year 2005, he had filed a case against the appellant as he(appellant) had attempted to kill him and the deceased in this case had given evidence in that case and the appellant had threatened the deceased not to give evidence in his (PW9) case. PW9 further stated in his evidence that on the next day of Nuakhai in the year 2008, the appellant killed the deceased. The above evidence of PWs.6 and 9 regarding motive of the appellant for committing the crime became firm when it CRLA No.19 of 2011 Page 12 of 16 was elicited from the mouth of PW9 in cross-examination that the deceased was the only eye witness to the occurrence in which PW9 was assaulted. Nothing was brought from the mouth of PWs.6 and 9 to disbelieve the motive of the appellant for committing the crime in the present case. Even, no suggestion was given to these two witnesses in this regard. Besides, the prosecution has also proved the certified copy of deposition of witnesses and judgment passed in SC No.130/15 of 2006 which also go to disclose that the deceased was an eye witness to the occurrence in which the appellant had assaulted PW9 and, accordingly, the appellant was convicted for offence U/S.324 of IPC for attacking and assaulting PW9 by means of bhujali in the aforesaid case. On re-appreciation of evidence of PWs.6 and 9, it can be safely be concluded that a prosecution has established the motive of the appellant for committing the offence beyond all reasonable doubt. 10. In this case, the prosecution has not only relied upon the evidence of PW8 to prove the dying CRLA No.19 of 2011 Page 13 of 16 declaration of the deceased, but also it has examined PW10 to prove the written dying declaration of the deceased. Admittedly, the written dying declaration of the deceased has been proved by the prosecution under Ext.4 and the signature of PW8 thereon under Ext.4/1 and the signature of PW10 under Ext.4/2. According to Ext.4, the deceased had stated before PW10, “on 05.09.2008 at about 3 PM, the appellant had dealt blow to him (deceased) by means of a Tabli and that the reason was; since he(deceased) had deposed against the appellant earlier in the Court, the appellant had borne grudge on him (deceased)”. PW10 had also testified in the Court to have recorded the dying declaration of the deceased vide Ext.4 and PW10 was none other than a doctor attached to DHH, Balangir. The evidence of PW10 makes it very clear that he had recorded the dying declaration of the deceased and his evidence could not be demolished by the defence in the cross examination. The evidence of PW10 was clearly supported by the evidence of PW8 who had also stated alike that the deceased told the medical CRLA No.19 of 2011 Page 14 of 16 officer “he had prior ill-feeling with the appellant, who on that date all on a sudden attacked him while he was witnessing card playing in village Danda”. The evidence of PWs.8 and 10 and the document under Ext.4 makes it apparently clear that the appellant had attacked and assaulted the deceased and the reason was due to prior enmity on account of deceased deposing against the appellant in a criminal case prior to this case. Even otherwise, this fact has been clearly established and proved by the prosecution beyond all reasonable doubt through the evidence of eye witness-PW6. 11. On a cumulative reappraisal of evidence on record, this Court has no option left, but to concur with the finding of the learned trial Court, since the learned trial Court after duly appreciating the evidence on record has come to a finding that the accused was responsible for the homicidal death of the deceased by giving blows with Katari (MOI) and the learned trial Court has not committed any infirmity or illegality while appreciating the evidence on record inasmuch as it has simply taken CRLA No.19 of 2011 Page 15 of 16 into consideration the eye witness account, the motive behind crime and the dying declaration and, therefore, the finding of the learned trial Court cannot be faulted with. 12. In the result, the criminal appeal is dismissed. Consequently, the impugned judgment of conviction and order of sentence as recorded on 13.10.2010 by the learned Additional Sessions Judge, Balangir in Sessions Case No.31/20 of 2009 are hereby confirmed. I Agree (G. Satapathy) Judge (D.Dash) Judge Orissa High Court, Cuttack, Dated the 4th day of December, 2023/Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 05-Dec-2023 17:57:51 CRLA No.19 of 2011 Page 16 of 16
Arguments
conviction, Mr. B.K. Ragada, learned counsel for the CRLA No.19 of 2011 Page 5 of 16 appellant has submitted that the learned trial Court believed the prosecution case without considering the evidence available on record in proper prospective and returning with a finding of guilt of the appellant for offence U/S.302 of IPC since the learned trial Court had believed the mother of the deceased-PW6 as an eye witness to the occurrence ignoring the fact that the family of the deceased was inimically disposed of with the appellant. Had the appellant being the perpetrator of the crime, PWs.1 to 4 who are independent witnesses would not have testified against the prosecution which had cited them as an eye witness to the occurrence. It is further argued that PW6 had only stated about the appellant dealing two blows to the deceased by means of Katara on cheek and waist, but the Doctor-PW12, who had examined the deceased on 05.09.2008 on police requisition, had stated in his evidence about finding two cut injuries on the deceased, whereas the Doctor-PW11, who had conducted autopsy over the dead body, had mentioned six external injuries in the post mortem report CRLA No.19 of 2011 Page 6 of 16 under Ext.5 and, thereby, the ocular evidence was at variance with the medical evidence giving rise to grave suspicion as to the veracity of prosecution case, which further widened with the evidence of Doctor-PW10 recording dying declaration of the deceased without stating about the fitness of state of mind of the deceased. It is further submitted by him that evidence of independent witness PW8 to the dying declaration was quite different from the evidence of PW10 and it would be highly unsafe to record conviction solely on the basis of dying declaration which does not inspire confidence and shrouded with mystery and doubt. In this way, disputing the genuineness of prosecution case, Mr. Ragada, learned counsel for the appellant has prayed to allow the appeal by setting aside the impugned judgment of conviction and order of sentence. On the other hand, Mr. P.K. Mohanty, learned ASC has strongly refuted the aforesaid submissions for the appellant by contending interalia that law is very clear that a person can be convicted solely on the CRLA No.19 of 2011 Page 7 of 16 evidence of dying declaration, but in this case, the evidence of prosecution witnesses not only disclose the motive behind the crime, but also clearly reveal that since the deceased had deposed against the appellant in another criminal case for an assault relating to PW9, he (appellant) had killed the deceased, which was established by eye witness account of PW6 who testified in the Court about the appellant dealing blows to the deceased. Mr. Mohanty, learned ASC has also highlighted that PW6 had categorically stated about the motive behind the murder by revealing that the appellant had earlier threatened the deceased not to depose against him in other criminal case and when the deceased deposed in the said criminal case, the appellant had killed the deceased. It is further submitted by the learned ASC that when the dying declaration is established by the prosecution through clear, cogent and unimpeachable evidence, it cannot be disbelieved. It is also submitted by him that neither the dying declaration of deceased was impeached by the appellant nor was the appellant CRLA No.19 of 2011 Page 8 of 16 demolished the evidence of eye witness account, which is strengthened by the uncontroverted evidence of motive of the appellant as laid by the prosecution. Learned ASC by way of aforesaid submission, has prayed to dismiss the appeal. Analysis of law and evidence 7. Gone through the evidence on record meticulously and extensively together with the impugned judgment of conviction minutely upon hearing the rival submissions to examine the sustainability of the conviction of the appellant, but it is reliably learnt that the learned trial Court has relied upon the ocular testimony of eye witness-PW6, the testimony of PWs.6 and 9 for motive behind crime and the testimony of PWs.8 and 10 towards dying declaration of the deceased to convict the appellant in this case. It is, however, found that the homicidal death of the deceased was neither disputed by the defence nor was challenged by it in any way, rather the testimony of PWs.11 and 12 together with injury report of the deceased vide Ext.6 and PM CRLA No.19 of 2011 Page 9 of 16 report vide Ext.5 clearly confirms the homicidal death of the deceased. It is, of course, true that PW12 had not detected some of the injury on the person of the deceased which was later on noted by PW11 in the PM report under Ext.5, yet there was no reason to disbelieve the homicidal death of the deceased, especially when it was not challenged by defence and, therefore, the finding of the learned trial Court after going through the testimony of PWs.11 and 12 together with Exts.5 and 6 to observe the cause of death of the deceased to be “homicidal in nature” can be neither disputed nor questioned and the finding of homicidal death of the deceased in the circumstance not at all requires any interference. 8.