The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.256 of 2019 AND CRLA No.257 of 2019 In the matter of Appeals under section 374 (2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 29th March, 2019 passed by the learned 1st Additional Sessions Judge, Baripada in S.T. Case No.185 of 2016. ---- Jipa Bindhani @ Kanhu (In CRLA No.256 of 2019) Rabindra Bindhani (In CRLA No.257 of 2019) …. Appellants State of Odisha (In both CRLAs) -versus- …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s. P. C. Jena, P. C. Dash, A. Mohanty. (Advocates) For Respondent - Mr. S. K. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE G. SATAPATHY Date of Hearing :14.11.2023 : Date of Judgment: 04.12.2023 D.Dash,J. The above noted two Appeals have been filed by the Appellants, challenging the judgment of conviction and the order CRLA Nos. 256 & 257 of 2019 Page 1 of 16 {{ 2 }} of sentence dated 29.03.2019 passed by the learned 1st Additional Sessions Judge, Baripada in S.T. Case No.185 of 2016, arising out of G.R Case No.1451 of 2013, corresponding to Betnoti P.S. Case No.154 of 2013 of the Court of learned Judicial Magistrate First Class (JMFC), Betnoti. The Appellants (accused persons) thereunder have been convicted for committing the offence under section 452/302/307/34 of Indian Penal Code, 1860 (in short, ‘the IPC’). Accordingly, they have been sentenced to undergo imprisonment for life and pay fine of Rs.5000/- in default to undergo rigorous imprisonment for six months; undergo rigorous imprisonment for two years for the offence under section 452/34 of the IPC and pay fine of Rs.1000/- in default to undergo rigorous imprisonment for two months. The accused Rabindra Bindhani has been further sentenced to undergo rigorous imprisonment for five years and pay fine of Rs.1000/- and in default to undergo rigorous imprisonment for two months for the offence under section 307/34 with the stipulation that the substantive sentences would run concurrently. 2. Prosecution case:- On 11.09.2013 around 9.45 p.m., accused Rabindra Bindhani, who is the father-in-law of Dhaneswar Mohanta (informant-P.W.18) came to the house of Dhaneswar with the other accused, who happens to be his son, namely, Kanhu. CRLA No. 256 & 257 of 2019 Page 2 of 16 {{ 3 }} Dhaneswar was present in the house with his parents, namely, Rasbihari and Kousalya. Accused Rabindra coming to their house, had some discussion with the parents of Dhaneswar for some time and then he asked for some food. Kousalya, the mother of Dhaneswar went to the kitchen to make arrangement to serve the dinner to the accused persons. When she was making the arrangement to serve the food; it is stated that the accused Rabindra suddenly dealt two strokes from behind by means of a Bhujali which he had kept concealed under his waist. Kousalya, receiving such Bhujali blows, fell on the ground and started crying “MARIGALI MARIGALI” and her husband Rasbihari rushed down and then accused Kanhu caught hold of his hand when Rabindra dealt four blows on him by that Bhujali. The blows were given on the backside of the neck, left cheek and throat. Rasbihari receiving such Bhujali blows, fell on the ground and then Dhaneswar rushed to rescue him but accused Rabindra again assaulted him on the upper portion of his eyelid and back by means of that very Bhujali. Rasbihari with much difficulty having come out of his house, fell down on the ground and there he met an instantaneous death. Kousalya, having come out of the house was taken to the hospital with the help of Bhupati (P.W.7). Dhaneswar (P.W.18) on that very day around 11 p.m., lodged a written report (Ext.6) with the Inspector-in-Charge (IIC) of Betnoti Police Station. CRLA No. 256 & 257 of 2019 Page 3 of 16 {{ 4 }} Receiving the above report from the Informant (P.W.18), the
Facts
IIC (P.W.24) treated the same as FIR and took up the investigation. The I.O (P.W.24) in course of investigation examined the Informant (P.W.18). On 12.09.2013 he examined other witnesses, namely, Tapan Mohanta, Bharat Mohanta and Bijaya Mohanta and seized one passenger DVS Auto and R.C. Book of the said vehicle and prepared the seizure list vide Ext.5. He also examined some witnesses to the seizure, namely, Rameswar Hembram and Mahendranath Deo. On the same day at 9.45 a.m., he visited the spot and prepared the spot map vide Ext.11 and there he examined few other witnesses. He conducted inquest over the dead body of the deceased Rasbihari and prepared the report (Ext.1). The services of the scientific team consisting of the Finger Print Sub-Inspector and the Photographer has been requisitioned by the I.O (P.W.24). The I.O (P.W.24) also seized one polythene packet containing blood stain earth and another polythene packet containing sample earth, one polythene packet containing blood stain knife and one spectacle from Finger Print Sub-Inspector Pratap Chandra Nath, DCRB, Baripada. He sent the dead body of the deceased Rasbihari Mohanta to ADMO, (M) DHH, Baripada for post mortem examination. Then he proceeded to DHH, Baripada to examine another injured Kausalya Mohanta, wife of the deceased Rasbihari and issued injury requisition in favour of CRLA No. 256 & 257 of 2019 Page 4 of 16 {{ 5 }} Kausalya Mohanta vide Ext.3/2. He seized the wearing apparels of the deceased i.e. one grey colour Sambalpuri lungi stained with blood, one yellow colour half banyan stained with blood, one vial containing blood on production of constable Guru Charan Mohapatra and prepared the seizure list vide Ext.9. On 15.09.2013, the I.O (P.W.24) examined the witnesses namely Gobinda Mohanta and Narendra Mohanta. The seized articles were sent to R.F.S.L., Balasore for chemical examination through Court. On 26.10.2014, the I.O (P.W.24) on his transfer, handed over the charge to Inspector Minati Biswal. The second I.O (P.W.22) re-examined the informant and other witnesses and on completion of investigation, the second I.O (P.W.22) submitted the Final Form placing the accused to face the Trial for commission of offence under section 452/302/30734 of the IPC. 3. Learned JMFC, Betnoti, receiving the Final Form as above, took cognizance of the offences and after observing the formalities committed the case to the Court of Sessions. That is how the Trial commenced by framing charge for the said offence against the accused persons. 4. In the Trial, the prosecution in total has examined twenty- four (24) witnesses. As already stated, P.W.18, is the informant, who is the son-in-law of the deceased and had lodged the FIR (Ext.6) scribed by P.W.17 whereas P.W.5 is the wife of the deceased. P.W.2 is the cousin of the Informant and nephew of the CRLA No. 256 & 257 of 2019 Page 5 of 16 {{ 6 }} deceased. P.W.6, P.W.7, P.W.8 and P.W.11 are the post occurrence witnesses. P.W.13 is the witness to the inquest. P.W.17 is the scribe of the written report. The Doctor, who had medically examined the injured is P.W.12 and the Doctor, who had conducted autopsy over the dead body of the deceased Rasbihari has been examined as P.W.21. The first I.O is P.W.24 whereas the second I.O is P.W.22. 5. Besides leading the evidence by examining above the witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.14/1. Out of those, the important are the FIR, Ext.6, inquest
Legal Reasoning
14. For the discussion of the evidence as aforesaid, we find that the prosecution has established the charges against the accused persons beyond reasonable doubt and therefore, the Trial Court is found to have rightly convicted the accused persons for the offences as afore-stated and the sentence imposed thereunder CRLA No. 256 & 257 of 2019 Page 15 of 16 {{ 16 }} according to us commensurate the crime as established through clear, cogent and acceptable evidence. 15.
Arguments
report, Ext.1, report prepared at the spot by finger print S.I Sri Nath, Ext.2, injury report, Ext.4, seizure list, Ext.5, Post Mortem Report, Ext.10, and the spot map, Ext.11. Some of the incriminating articles having been produced during Trial, those have been marked as Material Objects (M.O.-I to M.O.-VI) and out of those, the important one is that knife (M.O.V) 6. The accused persons being called upon, have not tendered any evidence in support of their plea of denial and false implication. 7. Learned counsel for the Appellants (accused persons) submitted that the prosecution case when is based on the evidence of P.W.5 and P.W.18, who are said to be the two injured CRLA No. 256 & 257 of 2019 Page 6 of 16 {{ 7 }} witnessed and the wife and son of the deceased as also related to the accused Rabindra, in view of marriage of P.W.18 with the daughter of accused Rabindra, those are required to be very closely scrutinized which the Trial Court has not at all done and just being swayed away by their statements that they were injured in the incident, implicit reliance having been placed upon their evidence without noticing the glaring infirmities appearing therein. He, therefore, contends that the conviction has been recorded against these accused persons for commission of all the offences for which they stood charged is unsustainable. He further inviting our attention to the deposition of P.W.5 and P.W.18 and have pointed out as to how discrepant their evidence is on material aspects of the case which we would discuss in the later part of this judgment. He, therefore, submitted that the Trial Court committed a grave error in holding the accused persons guilty for commission of the offences. He also submitted that even on the admitted facts and circumstances of the case as have come out in evidence, accused Kanhu should not have been convicted for the offences with the aid of section 34 of the IPC when the principal assailant as has been said by the witnesses was accused Rabindra. 8. Mr.S.K.Nayak, learned Additional Government Advocate for the Respondent-State while supporting the finding of the guilt against the accused as has been returned by the Trial court CRLA No. 256 & 257 of 2019 Page 7 of 16 {{ 8 }} submitted that the evidence of P.W.5 and P.W.18 run at par with one another and stand rock solid insofar as the roles of both the accused persons in the house of the Informant are concerned. He submitted that right from the beginning till the end, there is absolutely no variance in the version of P.W.5 and P.W.18 and their evidence rather appear to be quite natural with the response being quite responsive leaving no such adverse conduct to be viewed. He also submitted that in view of the specific role played by accused Kanhu in directly facilitating accused Rabindra, who is none other than his father in causing murderous assault upon his father-in-law Rasbihari when it is the evidence htat both had gone together, there is no option left but to hold accused Kanhu is liable with the aid of section 34 of the IPC even though, as per the prosecution case as per the evidence of P.W.5 and P.W.18, he had not given the fatal blows upon the deceased. 9. Keeping in view the submissions made, we have carefully read the judgment of conviction impugned in this Appeal. We have also gone through the depositions of all the witnesses P.W.1 to P.W.24. We have also perused the documents which have been admitted in evidence and marked Ext.1 to Ext.14/1. 10. In order to address the rival submission and thereby judge the sustainability of the finding of the Trial Court in holding both the accused persons guilty for having committed the offences as aforesaid, it be first taken note of that both P.W.5 and P.W.18 CRLA No. 256 & 257 of 2019 Page 8 of 16 {{ 9 }} have been cited from the prosecution as the injured witnesses and thus they two are also the victims on their own standing besides being the wife and son of deceased Rasbihari. The Doctor (P.W.12) having examined Kausalya (P.W.5) had noted in the injury report and stated during his examination in Court that she was having severe bleeding cut wound of the magnitude of 5 ½ x 1 ½ which is quite significant when it is said that the underline survical spine was visible and pulpable. It is the evidence of P.W.12 that the injury was not only grievous in nature but also was by means of a sharp cutting weapon when the prosecution case from the beginning is that the injury was caused by Bhujali. He has also examined Dhaneswar Mohanta (P.W.18) and has noted one lacerated injury of size of 1 x ½ x ¼ over right eye brow the injury. As per the evidence of P.W.12 was simple in nature. He has clearly denied the suggestion of the defence that the injury noted in respect of P.W.5 was possible by falling on broken glass when he has stated that injury received by P.W.18 was possible if a person gets dashed against door or window about which we find no indication either from the evidence of P.W.18 or P.W.5. Thus looking at the size of the injury, their size, seat and nature of the injury received by P.w.5, it would be next to impossible to even think for a moment that the same could have been a self inflicted one or by reason of accident or otherwise. Even though the nature of injury sustained CRLA No. 256 & 257 of 2019 Page 9 of 16 {{ 10 }} by P.W.18 is simple in nature, looking at its seat, it is also extremely impossible to take a remote view that such was a self inflicted one and for the purpose of providing strength to his evidence. It be also stated at the stage that there is no challenge to the evidence of the Doctor (P.W.12), who had conducted post mortem examination over the dead body of the deceased Rasbihari either before the Trial Court or before us. It has been stated by the Doctor (P.W.21) that conducting the post mortem examination, he had found six nos. of incise injuries over the dead body of Rasbihari which are as follows:- “i. One incised injury of the left side of the face running obliquely starting just below the middle of lower lip up to 2 cm away from the outer angle of left eye of length 14 c.m. breath 1 c.m. depth 3 cm. ii. One incised injury in the left side of neck along the line of mandible running obliquely going upwards of the face of length 10 cm, breadth 1 cm, depth ½ cm. iii. One incised injury on the neck at thyroid cartilage level going obliquely up to the left ear lobule length 15 cm, breath 1.5 cm, depth 3 cm exposing thyroid cartilage and cutting of superior thyroid arteries and veins. iv. One incised injury on the left side of neck just below the injury no.3 starting from midline running obliquely up to the left mastoid process tip of len 15cm, depth 1 cm below and 3 cm upper part, breadth 3 cm below 5 cm upper part cutting the posterior group of CRLA No. 256 & 257 of 2019 Page 10 of 16 {{ 11 }} muscle above with lacerations on the transverse process of first and second vertebrae with cutting of vertebral arteries, internal carotid , artery and external jugular vein and exposing of an cutting of sternocleidomastoid muscle below. Incised injury of left pinna above ear lobule of v. length 2 cm, breadth ½ cm, depth whole cartilage. 11. As per the evidence of P.W.21, the death was on account of haemorrhage and shock due to the injury on the blood vessel of the neck and neck structure, might be due to sharp cutting object. Interestingly, during cross-examination, it has been brought out that with the knife, such injuries were possible and the gravity of one of such injury having been very much highlighted during cross-examination, we are at a loss to understand the implication of the same in which way favourable to the defence. The prosecution having proved the death of Rasbihari to be homicidal in nature through the evidence of P.W.21, it is also found that it has been established through the evidence of P.W.6 that P.W.5 and P.W.18 had received the injuries almost during the time of the incident as has been deposed by the Doctor as regards the age of the injuries over and above the evidence of P.W.5 and P.W.18 to that effect. 12. Coming to the question as to the complicity of these accused persons how far has been established through the evidence let in by the prosecution, straightway, proceeding to CRLA No. 256 & 257 of 2019 Page 11 of 16 {{ 12 }} examine the evidence of P.W.5, we find her to have stated that both the accused persons came to their house and suggested for a compromise in relation to the matrimonial dispute between her son Dhaneswar (P.W.18) and the daughter of accused Rabindra, namely, Kamala. Her further evidence is that after having discussion for some time with regard to the case lodged by Kamala, he asked to be provided with some food. Therefore, her husband (Rasbihari) asked her (P.W.5) to serve food to them and accordingly, she went to the kitchen. It is next stated that when she was preparing to serve food, all of a sudden from behind accused Rabindra came and assaulted her by means of a knife on the backside of her neck which led her to fall sustaining severe bleeding injury. She has further narrated that soon thereafter, accused Kanhu caught hold of her husband Rasbihari and thereafter accused Rabindra assaulted him by means of a knife causing injuries on his neck, face and other parts of the body which is hinted by her to have been the result of several blows and certainly not one. It is also been stated that thereafter her son P.W.18, was also assaulted by that bhujali (knife) being given with two blows. The response of the witness is that she rushed to the house of her brothers who used to stay in the same village and they had also come to their house. The witness being asked has asserted during cross-examination that she (P.W.5), her husband (deceased) and son (P.W.18) were very much present in CRLA No. 256 & 257 of 2019 Page 12 of 16 {{ 13 }} their house at the relevant time in further narrating that her husband (deceased) and son (P.W.18) were watching television when accused persons came and held discussion with her husband, namely, Rasbihari (deceased). She has also gone to narrate something about which was discussed in compromise. She has reiterated that when she went to the kitchen to serve food, her husband and son (P.W.18) were sitting on the veranda but the accused persons followed her to the kitchen and there accused Rabindra assaulted her from backside giving knife blows for which she raised hullah “MARIGALI MARIGALI”. She has also gone to state during cross-examination that when she raised shout, her husband immediately arrived. The cross-examination appears to have not at all been directed to bring out any such material to create doubt in the mind as regards she being not the ocular witness or even that she was exaggerating something as regards the role of the accused persons while suppressing something. We find absolutely no such remote reason to entertain doubt in mind as regards the veracity of the evidence of P.W.5, being a housewife and an injured witness hailing from rural background have stated all in great detail and whatever had been omitted and left blank to be commented upon appears to have been filled up during cross-examination. 13. With the above obtained evidence of P.W.5 as afore- discussed when we come to the evidence of P.W.18, the other CRLA No. 256 & 257 of 2019 Page 13 of 16 {{ 14 }} injured, who is the son of P.W.5 and the deceased and the informant, who had lodged FIR (Ext.6), we first of all find the FIR version to be quite consistent with the evidence of P.W.5, which is the evidence of P.W.18 that the accused persons had gone to their house during that time on the relevant date for settlement of the dispute that was going on between him and the daughter of accused Rabindra and sister of accused Kanhu and thereafter asking her mother (P.W.5) to provide food how she was assaulted by accused Rabindra from the backside all of a sudden. It has been stated that Rabindra gave bhujali blows on the backside of his mother causing bleeding injury leading to her fall and when his father Rasbihari came to rescue, his mother Kausalya (P.W.5); he was assaulted by means of that Bhujali on the back side and front side of the cheek after he was restrained by accused Kanhu holding his hands. Important statement of this witness is that when he went to rescue his father, he too was assaulted by accused Rabindra by means of that Bhujali causing bleeding injury on his right side on the front and back, which is finding support from the evidence of the Doctor (P.W.12), who had medically examined him on police requisition. In paragraph 9 during cross-examination, the witness has further described about the incident that when the accused persons arrived at their house, he and his parents were in the veranda of their house which is the evidence of P.W.5. It has also been stated that except CRLA No. 256 & 257 of 2019 Page 14 of 16 {{ 15 }} them, no other person was present. He has gone to say about the discussion being held for 5-7 minutes and then her mother going to kitchen for making arrangement to serve the dinner to the accused persons. He appears to have truthfully stated without exaggeration that when he arrived at the spot that means in the kitchen, assault on his mother was over and then when Accused Kanhu caught hold of his father from his backside, accused Rabindra assaulted him by standing in front of him by giving two to three blows by that sharp side of the bhujali, which derives due corroboration from the Doctor (P.W.21), who had held autopsy over the dead body of Rasbihari. Almost, immediately after the incident and rather almost simultaneously the FIR has been lodged by P.W.18. We also find that the matter has been told to others when P.W.6, the brother of P.W.5 and maternal uncle of P.W.18, has supported the version of P.W.5 as to what she told before him and what he himself saw on arriving at the house of P.W.5. P.W.7 has also stated to have seen P.W.5 arriving in their house with bleeding injury on her neck. The other bother of P.W.5 i.e P.W.8 has stated in the same vein.
Decision
In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 29th March, 2019 passed by the learned 1st Additional Sessions Judge, Baripada in S.T. Case No.185 of 2016 are hereby confirmed. G. Satapathy, J. I agree. (D. Dash), Judge. (G. Satapathy), Judge. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 07-Dec-2023 12:40:32 CRLA No. 256 & 257 of 2019 Page 16 of 16