The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.27 of 2012 (From the judgment of conviction and order of sentence dated 08.12.2008 passed by the learned Ad hoc Addl. Sessions Judge (FTC), No.3, Bhubaneswar (Sessions) No.26/58 of 2007) in Criminal Trial Chaitanya @ Krushna Chandra Bhoi …. Appellant -versus- State of Odisha …. Respondent Advocates appeared in the case: For Appellant : Mrs. P. Patnaik, Adv. -versus- For Respondent : Mr. S.K. Nayak, AGA CORAM: MR. JUSTICE D. DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-05.07.2023 DATE OF JUDGMENT:-24.07.2023 Dr. S.K. Panigrahi, J. 1. In this JCRLA, the convict/ Appellant (Chaitanya @ Krushna Chandra Bhoi) challenges the judgment of conviction and Signature Not Verified
Facts
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 1 order of sentence dated 08.12.2008 passed by the learned Ad hoc Addl. Sessions Judge (FTC), No.3, Bhubaneswar in Criminal Trial (Sessions) No.26/58 of 2007, whereby the Petitioner was convicted and sentenced to undergo imprisonment for life for commission of offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “the I.P.C.” for brevity). I. CASE OF THE PROSECUTION: 2. The prosecution case, in brief, is that the accused had married deceased Tuni Bhoi, 10 years prior to the incident and together they had a son and a daughter aged about 8 years and 6 years respectively, out of the said wedlock. The prosecution has alleged that the accused has physically assaulted the deceased several times earlier. When the informant (father of the deceased) protested to such assault, the accused had also assaulted him. On 25.08.2006 at about 6.30 P.M., the son and daughter of the deceased come running to the informant crying and informed him that the accused has assaulted their mother with a katuri to her head, neck and hand, as a result of which she was lying in a pool of blood in their house and the accused went away with the katuri towards the Mangala temple of the village. Thereafter, the informant rushed to the house of the accused and found the deceased lying dead sustaining bleeding injuries. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 2 Subsequently, several people gathered there. The Gramarakshi of the village also arrived there and asked the informant to report the matter at the P.S. over phone. Police arrived at the spot after receiving the message over phone and the informant lodged the written report to the police at the spot. Police investigated the case and after completion of due investigation submitted charge sheet against the accused under Section 302 of IPC. II. SUBMISSION OF THE APPELLANT:
Legal Reasoning
P.W.11 and 12. It is well settled by the Supreme Court that in cases where there is a relation between the witness and the deceased, it is the duty of the court to scrutinize the evidence with proper caution. In the case of State of Uttar Pradesh v. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 10 Jagdeo3, the court held that the testimony of the witness cannot be discarded on the ground that the witness is connected to the deceased if the evidence given by him is consistent and supported with other witnesses. 19. In this regard, the Trial Court concluded that the post mortem report prepared by the doctor corroborated through the evidence of P.Ws.1, 2, 11 and 12 coupled with the plea of the defence i.e. no dispute to the homicidal nature of death of the deceased points to the irresistible conclusion that, the nature of death suffered by the deceased is neither accidental nor suicidal, rather the same is purely homicidal one. Therefore, this Court is of the view that the prosecution has been able to prove beyond reasonable doubt that the act of the appellant has led to the death of the deceased. 20. In the present case, it has been clearly established by the prosecution that the accused inflicted a serious injury on the deceased. This has been established owing to the deposition of the eye-witnesses P.Ws.11 and 12 and two post occurrence witnesses 1 and 2; due corroboration of the medical report (Ext.10) submitted by the medical officer. The prosecution has further established that the injury was inflicted upon the deceased with the knowledge and intention that it is likely to cause death. 3 2003 AIR 660 SC Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 11 21. The result is that this appeal is without merit and the same is liable to be dismissed. We do so, confirming the judgment of conviction and order of sentence dated 08.12.2008 passed by the learned Ad hoc Addl. Sessions Judge (FTC), No.3, Bhubaneswar in Criminal Trial (Sessions) No.26/58 of 2007. 22. The trial court is directed to take all such effective steps immediately in accordance with law to secure the presence of the Appellant to undergo the sentence as imposed. ( Dr. S.K. Panigrahi ) Judge D. Dash, J. I agree. Judge ( D. Dash ) Orissa High Court, Cuttack, Dated the 24th July, 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 12
Arguments
3. Learned Counsel for the Appellant strenuously argued that the appellant is innocent. The plea of the defence is one of complete denial and false implication. The specific case/plea of the defence as it borne out from the statement of the accused under Section 313 of the Cr.P.C. is that he (accused) is in no way connected or concerned with the death of the deceased. He had further deposed that he cannot say who has killed the deceased, however, he was not involved in the incident. 4. The Trial Court has relied on the P.W.1. However, P.W.1 is the father of the deceased and therefore is an interested witnesses and his depositions should not be relied upon. 5. Learned Counsel further contended that if at all, the accused should be charged under culpable homicide not amounting to murder. None of the witnesses of the prosecution have been able to prove that there was any previous quarrel between the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 3 accused and the victim. Therefore, the attack on the deceased by the accused was not premeditated, rather, it was sudden and in the heat of the moment. III. SUBMISSIONS OF THE STATE/ RESPONDENT 6. The prosecution in order to bring home the charges has examined as many as 15 witnesses. Among the prosecution witnesses, P.W.1 is the informant, P.W.2 is the cousin brother of the informant, P.W.3 is the nephew of the informant, P.Ws 4,6 and 7 are independent witnesses, P.W.5 is the mother of the accused, P.Ws 8 and 9 are the police constables who seized the wearing apparels and ornaments of the deceased, P.W.10 is another seizure witness. P.Ws 11 and 12 are the son and daughter of the accused. P.W.13 is the gramarakshi. P.W.14 is the doctor, who had conducted the Post Mortem examination over the dead body of the deceased and P.W.15 is the I.O of the said case. 7. Learned Counsel for the State submitted that in the post mortem report, the doctor has clearly stated that, the nature of death suffered by the deceased is homicidal one and possible by blow by hard and blunt object and the cause of death is due to coma as a result of injuries to the head and brain and the injuries are sufficient to cause death in the ordinary course of nature. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 4 8. Learned Counsel for the State submitted that from the unassailed testimony of the eye witnesses i.e. P.Ws. 11 and 12 which finds ample corroboration with each other and post occurrence witnesses P.W.1 and 2 coupled with the medical evidence i.e. the evidence of the doctor (P.W.14), it can be safely concluded that, none else but the accused is the author of the injuries found on the body of the deceased. IV. COURT’S REASONING AND ANALYSIS: 9. Heard both the parties and went through the judgment of the Trial Court. After extensively perusing the documents adduced by the prosecution and the depositions of the witnesses, this Court is of the view that there are two points of determination in the present case: i. Whether the death of the deceased is homicidal in nature? ii. Whether the prosecution has managed to prove beyond reasonable doubt that the act of the appellant led to the death of the deceased? V. Whether the death of the deceased is homicidal in nature? 10. With regards to this issue, the deposition of P.W.14, who is the doctor who conducted the post mortem has to be examined along with the post mortem report (Ext.10). In the post mortem report, it has been found the following external injuries on the body of the deceased: Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 5 (i) Lacerated wounds with incised margins looking dark red, moist, echymosis and blood lodged lengthwisely on the left side of head 2 1/2” above the left eye brow; (ii) Size 4” deep lengthwisely on mid plane of the head from 5 ½” are at the upper end of the nose with underlying forced cut; (iii) 1"x1/2"X muscle deep breadthwisely on the inner side of left forearm 1 1/2" above the wrist; (iv) 1/4"x1/4" x muscle deep 1/2 above injury no. (iii). (v) 1" - 1/2 " muscle deep breadthwisely above injury no. (iv). (vi) 1 1/2" x 1/2" A muscle deep closely above injury no. (v). (vii) 1"x 1/2" a muscle deep injury above injury no.(vi). (viii) 1/2" x 1/4" muscle deep on the left palm lengthwisely from its inner side from 1 above the mid front of the wrist 1" above base of the left little finger. (ix) 1/2"x1/8" x muscle deep breadthwisely on the top of the base of the right little finger; (x) 1"x 1/8" X muscle deep breadthwisely 2 1/2" above injury no. (ix). 11. According to the doctor, all the above injuries were ante- mortem in nature and might have been caused by hard, blunt and cutting object sufficient to produce bleeding leading to failure of heart and death was due to syncope in ordinary course of nature. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 6 12. Further, P.W.14 has also deposed that P.W.15 had sent the weapon of offence (katuri) to him with regards to preparing a report on whether the injuries found on the body of the deceased could have been caused by the said katuri. On examination of the katuri, P.W.14 has opined that those injuries could have been inflicted by the said katuri (Ext.11). Therefore, the Trial Court has rightfully concluded that the death of the deceased is homicidal in nature and the same has been committed through the said katuri. VI. Whether the prosecution has managed to prove beyond reasonable doubt that the act of the appellant led to the death of the deceased? 13. The case of the prosecution mainly rests upon the testimony of eyewitnesses i.e., P.W.11 and 12 which has been corroborated by the post occurrence witnesses P.W.1 and 2 and the post mortem report (Ext.10) prepared by P.W.14. 14. The eyewitnesses in the present case, P.Ws 11 and 12 are other than the son and daughter of the accused respectively. P.W.11 has deposed that on the date of the incident after the deceased (mother of P.W.11) returned from work, she asked P.W.12 to go to the accused and get back the radio from him, which he was playing very loudly. When P.W.12 went to the accused to bring back the radio, he threatened to assault her and asked her to go away. Subsequently, he came inside the house and sat on the cot. Thereafter, when the deceased asked him to Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 7 give the radio, he threw the same on her being annoyed, which did not hit her, rather hit the wall. Thereafter the accused brought the weapon of offence (katuri) and dealt several blows to the deceased. Thereafter, he also threatened P.Ws 11 and 12 to remain silent or else he would kill them. They ran away to their grandmother to intimate her about the matter. This deposition of P.W.11 has been absolutely corroborated by P.W.12 who has testified that she was asked by the deceased to bring the radio from the accused wherein he threated to assault her. Both P.Ws 11 and 12 have faced scorching cross-examination by the learned defense counsel. However, both have stood their ground regarding their deposition. In the case of Shivaji Sahebrao Bobade v. State of Maharashtra1, the Supreme Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. The Supreme Court observed: "It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." 1 (1973) 2 SCC 793 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 8 15. Additionally, in Anil Phukan v. State of Assam2, the Supreme Court observed; "Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. 16. P.W.1 is the informant as well as the father of the deceased. He has deposed that there was always quarrel between the accused and deceased. On the date of the incident, P.Ws 11 and 12 came running to him and intimated that the accused had assaulted the deceased (their mother) with a katuri and was lying dead in a pool of blood. P.W.1 immediately went to the house of the accused and found the deceased lying dead. Subsequently, P.W.1 reported the matter to the gramarakshi (P.W.13) and also reported to police over phone. P.W.2 is the cousin brother of P.W.1 stated that on the date of incident, he 2 (1993) 3 SCC 282 : JT 1993 (2) SC 290 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 9 was present in his house. P.W.1’s wife came to him and intimated that the accused had killed his wife by assaulting her with a katuri. Immediately he rushed to the house of the accused and found the dead body of the deceased lying there in a pool of blood. 17. It is further pertinent to note that while the accused was in police custody, he disclosed before him and other witnesses and police that he had killed his wife with a katuri and had concealed the katuri inside the paddy heap and would give recovery of the katuri if he would be taken there. The police recorded his statement as per Ext.3 and thereafter the accused led the police and witnesses to the paddy heap and brought out the katuri, which was seized by the police as per seizure list Ext.2 in his presence. 18. This Court is of the opinion that the Trial Court has rightfully relied on the deposition of the P.W.1 even after the said persons being directly related to the deceased. P.W.1 is the father of the deceased. It is pertinent to note that the deposition of P.W.1 has been corroborated by eye-witnesses