The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.83 of 2010 An appeal from the judgment and order dated 28.07.2010 passed by the Addl. Sessions Judge, Rairangpur in C.T. No.34 of 2007 for offence under section 302 of the I.P.C. --------------------- Pasupati Bera ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Purna Chandra Behera Advocate For Respondent: - Mr. Sarat Pradhan Addl. Standing Counsel --------------------- P R E S E N T: THE HON’BLE MR. JUSTICE S.K. SAHOO AND THE HON’ MR. JUSTICE CHITTARANJAN DASH --------------------------------------------------------------------------------------- Date of Hearing and Judgment: 19.11.2024 --------------------------------------------------------------------------------------- By the Bench: The appellant Pasupati Bera along with co-accused Surukuna Bera faced trial in the Court of the learned Additional Sessions Judge, Rairangpur in C.T. No.34 of 2007 for offences punishable under sections 302/120-B/34 of the Indian Penal JCRLA No.83 of 2010 Page 1 of 39 Code (in short ‘I.P.C.’) on the accusation that on 01/02.03.2007 at about 12.30 midnight at village Satasol under Bisoi Police Station in the district of Mayurbhanj, they, in furtherance of their common intention, committed murder of three persons, namely, Anjan Behera, Niranjan Behera and Jhapal Bera by giving blows by means of crowbar and hammer etc. and that they entered into criminal conspiracy for committing such murder. The learned trial Court, vide the impugned judgment and order dated 28.07.2010, though acquitted the co-accused Surukuna Bera of all the charges, so also the appellant Pasupati Bera of the charge under section 120-B of the I.P.C., but found the appellant Pasupati Bera guilty under section 302 of the I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.20,000/- (rupees twenty thousand), in default of payment of fine, to undergo R.I. for one year more. Prosecution Case: 2. The prosecution case, as per the F.I.R. lodged by one Smt. Kalasini Behera (P.W.1) on 02.03.2007 before P.W.16 Dhaneswar Sahoo, the I.I.C., Bisoi P.S., in short, is that on 01.03.2007 during midnight while she was sleeping, she heard some noise of opening of door, for which she woke up and found that the appellant Pasupati Bera, who is her son-in-law, was JCRLA No.83 of 2010 Page 2 of 39 standing there holding a crowbar. Seeing her (P.W.1), the appellant threw away the crowbar in the courtyard and ran away hurriedly. The husband of P.W.1, namely, Bimbadhar Behera (P.W.2) had also seen the appellant running away from there. Seeing such incident, P.Ws.1 and 2 shouted and on suspicion when they entered inside the house, both of them found that their two sons, namely, Anjan Bera and Niranjan Bera were lying in a bleeding condition so also their nephew Jhapal Bera lying dead. Hearing the shout of P.Ws.1 and 2, the neighbours came to the spot and all of them were shocked to see the bodies lying in profuse bleeding condition. With a ray of hope that the two sons of P.Ws.1 and 2 might be surviving, they were immediately shifted to the nearby Bisoi Hospital in a vehicle, but the doctor declared both of them to be dead, for which the dead bodies were brought back to the village. It is further stated in the F.I.R. that the appellant had married to the daughter of P.Ws.1 and 2, namely, Bandita @ Puspanjali Behera (P.W.9) since two & half years prior to the date of occurrence and they were blessed with a son about one and half years back. On 19.02.2007 there was a marriage function of the son of the elder brother of P.W.1 and the appellant attended the marriage and returned to his village Saragachhida on 21.02.2007. During his stay in the village of his JCRLA No.83 of 2010 Page 3 of 39 in-laws, the appellant was telling before others that he is having a share in the properties of his in-laws’ family. It is further stated that on some previous occasions also, the appellant was subjecting his wife (P.W.9) to physical torture by demanding a share in the in-laws’ family properties and the informant (P.W.1) suspected that relating to such demand of share in the property and being misguided by the co-accused Surukuna Bera, the appellant had committed murder of the three deceased persons. On the basis of such written report, P.W.16, the I.I.C., Bisoi police station registered Bisoi P.S. Case No.19 dated 02.03.2007 under section 302 of I.P.C. and took up investigation of the case. During the course of investigation, P.W.16 examined the informant (P.W.1) and other witnesses, visited the spot and prepared a spot map (Ext.13) and also seized one crowbar in presence of the witnesses and prepared seizure list vide Ext.7, held inquest over the dead bodies and prepared the inquest reports vide Exts.1, 2 & 3. Thereafter the I.O. dispatched the dead bodies to the S.D.H., Rairangpur for post-mortem examination. He also seized the sample earth, blood stained earth from the spot and prepared seizure list vide Ext.8. He arrested the appellant and seized his wearing apparels as per the seizure list Ext.14. He also seized the wearing apparels of the JCRLA No.83 of 2010 Page 4 of 39 deceased persons and sample blood of the appellant so also his nail clippings and prepared seizure list marked as Ext.15. On the very day, i.e. on 02.03.2007, he handed over the charge of
Legal Reasoning
investigation of the case to P.W.17 Sridhar Mohanta, the Circle Inspector of Police, who also visited the spot and re-examined the witnesses. The appellant while in police custody, confessed his guilt and his statement was recorded under section 27 of the Evidence Act. In pursuance of such statement, one hammer was recovered from the well situated in front of the house of the informant at the instance of the appellant as per the seizure list Ext.7. The appellant was forwarded to the Court and afterwards the co-accused Surukuna Bera was also arrested and he was also forwarded to Court. The I.O. (P.W.17) received the post-mortem report and he made a query to the S.D.M.O. as to whether the injuries on the body of the deceased could be possible by the hammer (M.O.I) and he received the query report in which the doctor answered in affirmative. He made a prayer to the Court to send the incriminating materials to the R.F.S.L., Balasore for chemical examination and accordingly, the same were sent to R.F.S.L. and the chemical examination report (Ext.17) was obtained. On completion of the investigation, the charge sheet was submitted against the appellant so also the co-accused JCRLA No.83 of 2010 Page 5 of 39 Surukuna Bera for the offences punishable under sections 302/120-B/34 of I.P.C. Framing of Charges: 3. After submission of charge sheet, the case was committed to the Court of Session, where the learned trial Court framed charges against the appellant and the co-accused as aforesaid. The appellant and the co-accused pleaded not guilty and claimed to be tried and accordingly, the sessions trial procedure was resorted to establish their guilt. Prosecution Witnesses, Exhibits & Material Objects: 4. In order to prove its case, the prosecution examined as many as seventeen witnesses. P.W.1 Kalasini Behera is the mother-in-law of the appellant and mother of the deceased Niranjan and Anjan and aunt of deceased Jhapal and she is also the informant in this case. She stated that on the night of occurrence, she along with her husband (P.W.2) was sleeping in one room and in another room, the deceased persons were sleeping. She further stated that the appellant and her daughter (P.W.9) were sleeping in the 3rd room, the entrance of which opened to the room in which the deceased persons were sleeping. She stated that at about JCRLA No.83 of 2010 Page 6 of 39 midnight, she heard some sound for which she woke up and also awakened her husband (P.W.2) and when they came out, they saw the appellant standing by holding a crowbar and when they called him, he ran away from the spot. On suspicion, they went to the room where the deceased persons were sleeping and they found the deceased Jhapal to be dead and their two sons were bleeding profusely. She also stated that since one year prior to the occurrence, the appellant was insisting his wife (P.W.9) to persuade P.W.2 to record the properties in his name. P.W.2 Bimbadhar Behera is the father of the deceased Niranjan and Anjan and uncle of the deceased Jhapal and father-in-law of the appellant. He stated that on the night of occurrence, he was sleeping with P.W.1 in a room and the deceased persons were sleeping in another room. Hearing a sound when he along with P.W.1 rushed to outside, they found the appellant was fleeing from the spot throwing a crowbar. He further stated that when he enquired, the appellant replied that he was going outside and ran away. He stated that the door of the room where the deceased persons were sleeping was found open and when he entered into the room, he found the deceased persons seriously injured with profuse bleeding. He also stated JCRLA No.83 of 2010 Page 7 of 39 that since one year prior to the occurrence, the appellant was demanding to get his (P.W.2) properties transferred in his name. P.W.3 Bansidhar Behera is the uncle of the deceased persons who stated that while he was asleep in the night of occurrence, he heard a shout and accordingly, came to the house of the informant and found the deceased persons bleeding profusely. He also stated that during this time, the appellant was not present in the house. P.W.4 Pravakar Behera is neighbour of the informant who stated that in the night of occurrence, he heard some shouting for which he came to the spot and found the deceased persons in a pool of blood, who had sustained severe injuries on their heads. He also stated that the appellant was found missing from the house after the occurrence. He is a witness to the preparation of inquest reports vide Exts.1, 2 and 3 and to the seizure of a crowbar as per seizure list Ext.4. P.W.5 Ranga Behera stated that after hearing some shout, he came to the spot and found the deceased persons lying in a pool of blood and having severe injuries on their heads. He also stated that the appellant was found missing from the spot after the incident. JCRLA No.83 of 2010 Page 8 of 39 P.W.6 Ashok Behera stated that hearing some shout from the house of the informant, he rushed to the spot and found the deceased Jhapal lying dead having bleeding injuries on his head and the other two deceased persons were slightly gasping having bleeding injuries on their heads. He also stated that the appellant was absent from the house of the informant after the occurrence. P.W.7 Dhuna Behera stated that after hearing some shout, he came to the spot and found the deceased persons were lying having profuse bleeding injuries on their heads. He also stated that the appellant was found missing from the spot after the occurrence. P.W.8 Lalbahadur Sastri Mandal is the scribe of the F.I.R. who stated that after hearing the shout, he came to the house of the informant and found the deceased persons lying with profuse bleeding injuries. He further stated that the appellant was found missing from the spot after the occurrence and he was arrested subsequently. He also stated that appellant confessed to have committed the crime while he was under the police custody and also led the police team to the well where the weapon of offence i.e. hammer was concealed and it was recovered and seized as per seizure list Ext.7. JCRLA No.83 of 2010 Page 9 of 39 P.W.9 Bandita @ Puspanjali Behera is the wife of the appellant and the sister of the deceased persons and she is the eye witness to the occurrence and she stated that on the night of occurrence, she woke up by hearing some sound and found the appellant inflicting blows on the deceased persons by means of a hammer. She further stated that upon seeing her, the appellant rushed towards her with wide open eyes holding the hammer for which she slept on the bed out of fear and when she woke up again, she did not find the appellant in the house. She also stated that the appellant committed the murders of the deceased persons with an expectation that he would get the properties of P.W.2. P.W.10 Sunaram Hembram stated that on being informed that the deceased persons have been attacked and injured by the appellant, he proceeded to the house of the informant where he found the deceased persons in a profusely bleeding condition. He further stated that on the next day of incident, he found the appellant near Kasipenth jungle and informed the police and accordingly, the appellant was arrested. He also stated that while under police custody, the appellant confessed to have killed the deceased persons and also led the police team to the well in which the weapon of offence was JCRLA No.83 of 2010 Page 10 of 39 concealed and accordingly, the hammer (M.O.I) was recovered and seized. P.W.11 Biswaranjan Behera stated that at about midnight of the date of occurrence, he heard some shout and came to the spot of occurrence where he found the deceased Jhapal dead and other two deceased persons in an injured condition having profuse bleeding. He further stated that though the appellant was staying in the house of the informant, but he was found missing after the incident. P.W.12 Gurucharan Bindhani is a witness to the seizure of blood stained earth and sample earth from the spot as per seizure list Ext.8. P.W.13 Dr. Pradeep Kumar Mohapatra was working as a Specialist in the S.D.H., Rairangpur who, on police requisition, conducted post mortem examination over the dead body of the deceased Niranjan Behera and proved his report vide Ext.9. P.W.14 Dr. Ram Chandra Hembram was posted as the Assistant Surgeon in the S.D.H., Rairangpur who, on police requisition, conducted post mortem examination over the dead body of the deceased Anjan Behera and proved his report vide Ext.11. JCRLA No.83 of 2010 Page 11 of 39 P.W.15 Dr. Sudhir Charan Mallik was working as an O & G Specialist, S.D.H., Rairangpur who, on police requisition, conducted post mortem examination over the dead body of the deceased Jhapal Bera and proved his report vide Ext.12. P.W.16 Dhaneswar Sahu was working as the Inspector-in-Charge of Bisoi police station, who is the initial Investigating Officer of this case. After conducting some investigation, he handed over the charge to P.W.17. P.W.17 Sridhar Mohanta was working as the Circle Inspector of Police in Rairangpur police station and he took over the charge of investigation from P.W.16 on 02.03.2007 and on completion of investigation, he submitted the charge sheet. The prosecution proved seventeen numbers of documents. Exts.1, 2 & 3 are the inquest reports, Exts.4, 7, 8, 14 & 15 are the seizure lists, Ext.5 is the F.I.R., Ext.6 is the confessional statement of the appellant, Exts.9, 11 & 12 are the post mortem reports, Ext.10 is the query report, Ext.16 is the forwarding letter and Ext.17 is the chemical examination report. The prosecution also produced two numbers of material objects. M.O.I is the hammer and M.O.II is the crowbar. JCRLA No.83 of 2010 Page 12 of 39 Defence Plea: 5. The defence plea of the appellant is one of complete denial. The co-accused Surukuna Bera examined himself as a defence witness and stated that the appellant suffered from mental disorder in the year 2003 and he again suffered mental ailment in the year 2006 and he did not recover from such disorder till the date of occurrence. He further stated that the appellant was treated at Ranchi for such ailment and he was present when the doctor scribed the prescription and he had also purchased medicines for the appellant. He further stated to have filed the report regarding the E.G. of the appellant. Findings of the Trial Court: 6. The learned trial Court, after assessing the oral as well as documentary evidence on record, found the evidence of eye witness P.W.9 as acceptable, which got corroboration from the evidence of P.Ws.1 and 2 so also from the medical evidence. However, the learned trial Court did not find any cogent evidence against the co-accused Surukuna Bera and therefore, while acquitting the said co-accused of all the charges and also the appellant of the charge under section 120-B of I.P.C., found the appellant guilty under section 302 of the I.P.C. JCRLA No.83 of 2010 Page 13 of 39 Contentions of Parties: 7. Mr. Purna Chandra Behera, learned counsel appearing on behalf of the appellant argued that the case is mainly based on the sole testimony of the eye witness P.W.9, who is none else than the wife of the appellant, but, her name does not find place in the F.I.R. as an eye witness to the occurrence. He further submitted that P.W.9 has stated that she was examined by the police about eight to ten days after the occurrence. Therefore, there was every possibility that P.W.9 had got no idea as to how the occurrence took place and she had been set up as an eye witness to the occurrence at a subsequent stage and therefore, it would not be proper to place implicit reliance on her testimony to convict the appellant. The learned counsel further argued that, even though the wearing apparels of the appellant like ‘ganji’ and ‘lungi’ were seized and the same were sent for chemical examination, but no blood stain was found on it as per the chemical examination report. He further submitted that one defence witness, who is none else than the co-accused Surukuna Bera, the younger brother of the appellant, has been examined as D.W.1, who has stated that the appellant was suffering from mental disorder since 2003 and again he suffered from mental ailments in 2006 and therefore, even if the JCRLA No.83 of 2010 Page 14 of 39 appellant is stated to have committed the offence, in view of his unsoundness of mind, he is to be protected under section 84 of the I.P.C. and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant. Mr. Sarat Pradhan, learned Addl. Standing Counsel, on the other hand, supported the impugned judgment and submitted that merely because the name of the eye-witness P.W.9 is not mentioned in the F.I.R., which was lodged by her mother (P.W.1) soon after the occurrence, keeping in view her mental state, since she had lost her two sons and a nephew, it was not expected from her that she would be cool and composed and give all the details of the occurrence including the fact that P.W.9 is an eye witness to the occurrence. Therefore, when the evidence of P.W.9 has not been otherwise shaken and there was no reason for her to depose falsehood against her husband (the appellant), the learned trial Court has rightly placed reliance on her evidence. Moreover, the evidence of P.W.9 is getting corroboration from her parents, i.e. P.Ws.1 and 2 as they have stated about the presence of the appellant with a crowbar when they woke up hearing some sounds and found the appellant was running away from the spot throwing the crowbar. Learned counsel for the State further submitted that the three doctors, JCRLA No.83 of 2010 Page 15 of 39 i.e. P.Ws.13, 14 and 15 who conducted post-mortem examination over the dead bodies of Niranjan Behera, Anjan Behera and Jhapal Bera have also stated that the deceased persons died of homicidal death and the weapon of offence i.e. hammer (M.O.I) was examined by each of them and they opined that the injuries sustained by the respective deceased persons were possible by such hammer. The learned counsel further argued that the hammer was also sent for chemical examination and the C.E. report indicates that human blood was noticed on the said hammer. Learned counsel for the State further argued that the hammer was recovered at the instance of the appellant from a hidden position inside the well, which has been duly proved by the witnesses including the investigating officer. It is argued that, even though D.W.1 has stated that the appellant was suffering from mental disorder, but no medical document(s) has been proved in that respect. Moreover, neither P.W.9, the wife of the appellant nor P.Ws.1 and 2 have stated that the appellant was suffering from unsoundness of mind and therefore, the plea of insanity is not available to the appellant and the learned trial Court is quite justified in convicting the appellant under section 302 of the I.P.C. and sentencing him to suffer life imprisonment. JCRLA No.83 of 2010 Page 16 of 39 Whether the deceased persons died a homicidal death?: 8. Before adverting to the contentions raised by the learned counsel for the respective parties, let us first discuss whether the prosecution has successfully proved that the three deceased persons, namely, Niranjan Behera, Anjan Behera and Jhapal Bera have met with homicidal death or not. Deceased Niranjan Behera: So far as the deceased Niranjan Behera is concerned, the post mortem examination over his dead body was conducted by P.W.13 on 02.03.2007 at S.D.H., Rairangpur and he noticed the following injuries:- 1. Lacerated wound over mid and lower part of forehead of size 2” x ¾” x brain deep with crushed fracture of underline frontal bone. 2. Lacerated wound at outer canthus of left eye of size 2” x ¾” x brain deep with fracture of underline bone. 3. Lacerated crushed wound over lower part of nose and upper line disfiguring the nose with fracture of underline maxilla and distorting of normal denture. 4. Both eye balls found ruptured irregularly and collapsed oozing of jelly fluid and liquid blood on pressure. There was also oozing of JCRLA No.83 of 2010 Page 17 of 39 liquid blood with liquid brain matter from injury No.1 and 2 on pressure. The doctor opined that the injuries were ante-mortem in nature and might have been caused by heavy thrust by hard and blunt weapon/object. On dissection, portion of brain, below injury Nos.1 and 2, i.e. frontal lobe was found to be totally smashed and mixed with clotted blood. There were multiple fractures of skull bone, mainly frontal, maxilla and nasal bone, which were irregularly broken into pieces. Other internal organs were found intact, but pale. The doctor opined that the death was due to injury to vital organ, i.e. brain, haemorrhage and shock. The doctor proved the post mortem examination report, which is marked as Ext.9. The I.O. made a query to him regarding possibility of the injuries sustained by the deceased with the hammer, which was produced before him and on examining the same, the doctor opined in affirmative and he has proved the query report which is marked as Ext.10. The evidence of this doctor (P.W.13) has remained unchallenged and not a single question has been put to him in the cross-examination. JCRLA No.83 of 2010 Page 18 of 39 Deceased Anjan Behera: The post-mortem examination of the body of the deceased Anjan Behera was conducted by P.W.14 on 02.03.2007, who noticed the following injuries:- 1. Bleeding lacerated wound of 4 cm x 1 cm x skin deep on the right side of forehead. 2. Bleeding lacerated wound of 4 cm x 1 cm x skin deep in preauricular region (right side). 3. There was a depression area extending from right parietal region to right zygomatic process and mid forehead to right ear. The doctor opined that all the injuries were ante- mortem in nature and the death was due to head injuries and haemorrhagic shock. On dissection, there was fracture of right parietal bone, right side of frontal bone, right orbital fossa and right zygomatic process with injury to the brain matter deep to the fractured skull bones. Chest wall was intact, heart was intact, both the chambers were empty of blood. Both the lungs were intact and pale. Spleen, liver and both the kidneys were intact and pale. The doctor proved the post mortem examination report, which is marked as Ext.11. The I.O. made a query to P.W.14 regarding possibility of the injuries sustained by the deceased with the hammer, JCRLA No.83 of 2010 Page 19 of 39 which was produced before him and on examining the same, the doctor opined in affirmative and he has proved the query report which is marked as Ext.10. Nothing has been brought out in the cross-examination to disbelieve the evidence of P.W.14. Deceased Jhapal Bera: The post mortem examination over the body of the deceased Jhapal Bera was conducted by P.W.15 on 02.03.2007 at S.D.H., Rairangpur and he noticed the following injuries:- “Lacerated wound on the left side of forehead 2” above the left superciliary arch of size 1‰” x ‰” x skin deep with depressed fracture of underline frontal bone. The upper margin of the wound and the fracture was semi-circular.” On dissection, the doctor found one depressed fracture of the left half of frontal bone of size 2‰” x 1‰” x bone deep with laceration of the underline meninges frontal lobe of brain and associated with intracranial haemorrhage and hematoma. Brain and meninges congested. The doctor opined that the cause of death was due to coma as a result of injury to vital organs like brain due to the head injury. All the injuries were opined to be ante-mortem in nature. The doctor proved the post mortem examination report, which is marked as Ext.12. JCRLA No.83 of 2010 Page 20 of 39 The I.O. made a query to P.W.15 regarding possibility of the injuries sustained by the deceased with the hammer and crowbar, marked as M.O. I and M.O. II which were produced before him and on examining the same, the doctor opined in affirmative and he has proved the query report which is marked as Ext.10. Nothing has been brought out in the cross- examination to disbelieve the evidence of P.W.15. In view of the evidence of three doctors coupled with the findings arrived at in the respective post mortem examination reports, the inquest reports and the evidence of P.Ws.1, 2 and 9, we are of the view that the prosecution has successfully established that the three deceased persons met with homicidal deaths. Whether the eye witness account of P.W.9 is reliable and trustworthy?: 9. Coming to the evidence of the sole eye witness to the occurrence i.e. P.W.9, who is none else than the wife of the appellant, she has stated that on the date of occurrence, she was sleeping in one room with the appellant and their child and the three deceased persons were sleeping in the next room which was connected by a door and at about midnight 1.00 a.m., she heard some sound and got up and found that the appellant was JCRLA No.83 of 2010 Page 21 of 39 inflicting blows by a hammer on the deceased Anjan, Niranjan and Jhapal. When she saw the appellant, he rushed towards her with wide eyes holding the hammer, for which out of fear, she again laid down on the bed and thereafter when she got up, she found the three deceased were lying in bleeding condition and the appellant was not there. She further stated that the appellant committed the murder to get the properties of her father (P.W.2) on the ill advice of the co-accused Surukuna Bera. In the cross-examination, she has admitted that the appellant was her second husband and that her parents (P.W.1 and P.W.2) came to the spot of occurrence and many villagers had also gathered there. She further deposed that she told about the incident to her parents after three to four days and to the police about eight to ten days of the occurrence. She further stated that there was electric light in the house and the rooms in which she was sleeping and in which the three deceased persons were sleeping was also lighted by electricity. She further stated that the police arrested the appellant on the next day of the occurrence and she disclosed to the villagers after telling the same to her parents. Learned counsel for the appellant argued that, since the name of P.W.9 does not find place in the F.I.R. and she did JCRLA No.83 of 2010 Page 22 of 39 not disclose about the incident immediately before her parents and according to her, she disclosed about the occurrence about eight to ten days after, it cannot be said that she is a truthful witness as there is every possibility that she had been set up as an eye witness to the occurrence afterwards. We are not able to accept such contention raised by the learned counsel for the appellant. We find from the case record that the statement of P.W.9 was recorded on 02.03.2007, i.e. on the date of lodging of F.I.R. and moreover, missing of the name of P.W.9 in the F.I.R. cannot be a factor to disbelieve her evidence. It cannot be lost sight of the fact that P.W.1 had lost two of her sons and also her nephew few hours back when she lodged the F.I.R. and she must be in a perturbed state of mind, anxiety and depression and therefore, at that time, it was not expected from her to give all the details of the occurrence including the names of eye-witness to the occurrence in the F.I.R. In the case of Dhirajbhai Gorakhbhai Nayak -Vrs.- State of Gujarat reported in (2003) 9 Supreme Court Cases 322, the Hon’ble Supreme Court has observed as follows:- “7. Coming to the plea that the name of P.W.3 does not appear in the first information report, it JCRLA No.83 of 2010 Page 23 of 39 has to be noted that death took place, according to medical records, at about 4.45 a.m. and the first information report was lodged at about 5.15 a.m. In other words, the first information report was lodged almost immediately after the occurrence. As observed by this Court in Shri Bhagwan v. State of Rajasthan [(2001) 6 SCC 296: 2001 SCC (Cri) 1095], the mental condition of the person who has just seen a close relative, the bread earner lose his life cannot be lost sight of. The psychic trauma cannot be ignored. Merely because P.W.3’s name did not figure in the first information report, that is not a suspicious circumstance. Evidence of P.Ws. 1 and 3 has been analysed by both the trial Court and the High Court minutely and found to be credible and cogent. Nothing infirm therein could be shown to weaken their acceptability and reliability. The trial court and the High Court were justified in placing reliance thereon.” Therefore, mere omission of the name of P.W.9 in the F.I.R., in our considered view, is not a ground to disbelieve her evidence as an eye witness to the occurrence. Her evidence has also not been shaken at all in the cross-examination and moreover, she being the wife of the appellant is not likely to tell falsehood against the appellant which has the potential to JCRLA No.83 of 2010 Page 24 of 39 entangle him for commission of offence of murder. In a catena of cases, the Hon’ble Supreme Court has reiterated that a near relative is hardly ever expected to falsely implicate and let the real culprit go scot-free. In the case of Dalip Singh -Vrs.- State of Punjab reported in (1953) 2 Supreme Court Cases 36, it has been held as follows:- “24. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.” In the instant case, it is absurd to argue that P.W.9 would falsely implicate the appellant, who is none else than her husband. Though it is an admitted fact that P.W.9 had lost her two brothers and one cousin, but that in itself is not a sufficient reason to suspect that she would falsely entangle her husband in JCRLA No.83 of 2010 Page 25 of 39 such a grave case without any rhyme or reason. As stated by P.W.9, there was electricity in the room where the three deceased were sleeping and moreover, when she got up hearing the sound and found her husband inflicting blows with the hammer to the three deceased persons, the appellant rushed towards her wide eyes holding the hammer and therefore, there would not have been any difficulty on the part of P.W.9 to identify her husband (the appellant) as the culprit. The evidence of P.W.9 is getting corroboration from the evidence of P.W.1 and P.W.2. P.W.1 is the mother-in-law of the appellant and she has stated that on the night of occurrence, she was sleeping with her husband (P.W.2) in one room and in another room her two sons, namely, Anjan and Niranjan so also her nephew Jhapal (the deceased persons) were sleeping and the appellant and his wife (P.W.9) were sleeping in the third room, the entrance of which opened to the room where the deceased persons were sleeping. At about midnight, she heard some sound and woke up and awakened her husband (P.W.2) and when she along with her husband came out, they found the appellant holding a crowbar and when they called him, he ran away throwing the crowbar and on suspicion, she along with her husband entered inside the JCRLA No.83 of 2010 Page 26 of 39 room where they found their two sons were lying in serious condition with profuse bleeding and at that time, their nephew was lying dead and therefore, they shouted at the spot and hearing their shout, the neighbours came there and hoping that their two sons would survive, they immediately shifted them to the hospital, but the doctor found both of them dead. P.W.1 has further stated that since one year prior to the occurrence, the appellant was staying in their house and during his stay, he was insisting his wife (P.W.9) to persuade P.W.2 to get a share of property recorded in his name and the accused Surukuna Bera was also persuading the appellant to get the property of P.W.2 recorded in his name. The evidence of this witness has not been shaken in the cross-examination; rather it is getting corroboration from the evidence of P.W.2 who has also stated that he found the appellant running away from the spot by throwing a crowbar, when he along with his wife (P.W.1) came out hearing some sound. P.W.2 also stated that the appellant was staying in their house for about one year since the date of occurrence and was demanding a share from the property. He further stated that the brother of the appellant was also persuading him to grab the properties. JCRLA No.83 of 2010 Page 27 of 39 The evidence of the eye witness P.W.9 is not only getting corroboration from the evidence of the two witnesses, i.e. P.Ws.1 and 2 but also from the medical evidence adduced by the three doctors i.e. P.Ws.13, 14 and 15, who conducted the post-mortem examination of the three deceased and proved their reports. In our humble view, the evidence rendered by P.W.9 is clear, cogent, trustworthy and above-board, beyond every speck of doubt and suspicion and as such, we have got no hesitation to place reliance on her evidence. In view of the evidence of the witnesses i.e. P.W.1, P.W.2 and P.W.9, it is apparent that the appellant was insisting for a share in the properties of P.W.2 and therefore, the prosecution has also proved the motive behind the commission of the crime. At the instance of the appellant, the weapon of offence i.e. hammer (M.O.I) was recovered from the well on the basis of his statement (Ext.6) recorded under section 27 of the Evidence Act. Apart from the I.O. (P.W.17), the two seizure witnesses i.e. P.Ws.8 and 10 have also stated in that regard and the seizure list vide Ext.7 has been proved. M.O.I was sent for chemical examination and the C.E. report (Ext.17) indicates that human blood was noticed on the said hammer. This is an JCRLA No.83 of 2010 Page 28 of 39 additional material against the appellant to show his involvement in the crime. Whether the appellant has proved the plea of insanity?: 10. Learned counsel for the appellant argued that the appellant was suffering from unsoundness of mind and the evidence to that effect has been given by D.W.1, who was a co- accused in this case and the younger brother of the appellant. Though D.W.1 has stated that the appellant was suffering from mental disorder in the year 2003 and again he suffered from mental disorder in the year 2006 and he was not free from the mental ailments and was further treated by one Dr. Sailendra Kumar at Ranchi and that the said doctor was prescribing medicines to him, but no medical documents have been produced before police or in Court in support of such treatment to substantiate the plea of insanity. D.W.1 admits that he had not produced any document before the police regarding insanity of the appellant. To prove insanity of a person accused of a crime, it is important to show that he was bereft of his sanity at the time of commission of the crime and such lack of sanity must also match the threshold of ‘legal insanity’ and not mere ‘medical insanity’. JCRLA No.83 of 2010 Page 29 of 39 Section 84 of the I.P.C., which deals with the act of a person of unsound mind, states that as follows:- “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” Law is well settled that there is difference between ‘medical insanity’ and ‘legal insanity’. An accused who seeks exemption from the liability under section 84 of the I.P.C., has to prove ‘legal insanity’ and not ‘medical insanity’. The Hon’ble Supreme Court in the case of Bapu -Vrs.- State of Rajasthan reported in (2007) 8 Supreme Court Cases 66 has elaborated different kinds of persons who can be called as non compos mentis and in the words of the Hon’ble Court– “9. There are four kinds of persons who may be said to be non compos mentis (not of sound mind) i.e. (1) an idiot; (2) one made non compos by illness; (3) a lunatic or a mad man; and (4) one who is drunk. An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without lucid intervals; and those are said to be idiots who cannot count twenty, or tell the days of the week, or who do not know their fathers or mothers, or the like, JCRLA No.83 of 2010 Page 30 of 39 (see Archbold’s Criminal Pleadings, Evidence and Practice, 35th Edn., pp. 31-32; Russell on Crimes and Misdemeanors, 12th Edn., Vol. 1, p. 105; 1 Hale’s Pleas of the Crown 34). A person made non compos mentis by illness is excused in criminal cases from such acts as are committed while under the influence of this disorder, (see 1 Hale PC 30). A lunatic is one who is afflicted by mental disorder only at certain periods and vicissitudes, having intervals of reason, (see Russell, 12th Edn., Vol. 1, p. 103; Hale PC 31). Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy as natural insanity.” In the present case, no clinching evidence has been adduced from the side of defence that the appellant had any characteristics to come under the purview of any of the aforesaid non compos mentis. Importantly, though D.W.1 has deposed that the appellant was having mental illness and he was under medication for the same, the defence still failed to bring to the attention of the Court any medical document or evidence which can corroborate such a claim. Nonetheless, merely bringing some documents also would not suffice if it is not proved that the accused was under the influence of insanity at the time of commission of offence. The burden of proof that the accused was of unsound mind and as a result thereof, he was incapable of JCRLA No.83 of 2010 Page 31 of 39 knowing/understanding the nature and consequence of his acts is on the accused in view of section 105 of the Indian Evidence Act. To establish a defence on the ground of insanity, it must be clearly proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing or if he did know it, that he did not know what he was doing was wrong or contrary to law. The Hon’ble Supreme Court in the case of Rupesh Manger -Vrs.- State of Sikkim reported in (2023) 9 Supreme Court Cases 739 has deliberated upon the standard of proof required for proving insanity under section 84 of the I.P.C. and held as follows: “20. It is settled that the standard of proof to prove the lunacy or insanity is only “reasonable doubt”. For this, we may profitably refer to a judgment of this Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat [Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, 1964 SCC OnLine SC 20 : (1964) 7 SCR 361] wherein, referring to Section 84 IPC and the rule of evidence as contained in Sections 4, 101 and 105 of the Evidence Act, this Court held thus: (SCR pp. 364-65 and 367-68) “It is a fundamental principle of criminal jurisprudence that an accused is JCRLA No.83 of 2010 Page 32 of 39 presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 the Penal Code. This general burden never shifts and it always rests on the prosecution. But, as Section 84 of the Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under Section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused; and the Court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of “shall presume” in Section 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that said circumstances existed or their existence JCRLA No.83 of 2010 Page 33 of 39 was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a “prudent man”. If the material placed before the court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of “prudent man”, the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in Section 299 of the Penal Code. If the Judge has such reasonable doubt, he has to acquit JCRLA No.83 of 2010 Page 34 of 39 the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution, and which never shifts, and the special burden that rests on the accused to make out his defence of insanity. *** *** *** The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Penal Code: the accused may rebut it by placing before the court all the relevant evidence - oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was JCRLA No.83 of 2010 Page 35 of 39 not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.” The crucial point of time at which unsoundness of mind should be established is the time when the crime was actually committed. The mere fact that on former occasions, the accused was occasionally subject to insane delusion or has suffered from disarrangement of mind or that subsequently he had, at times, behaved like a mentally deficient person is per se insufficient to bring his case within the exemption. In order to ascertain whether the accused was insane at the time of commission of the offence, it may be relevant to consider the state of such person’s mind immediately preceding as well as subsequent to the commission of the offence. In the case in hand, the statement of the eye witness P.W.9 indicates that when she saw the occurrence and the JCRLA No.83 of 2010 Page 36 of 39 appellant became aware of it, the appellant rushed towards her with wide eyes holding the hammer. Not only that, when the appellant was seen holding a crowbar by P.Ws.1 and 2, he threw the crowbar and ran away from the spot. Evidence is also available on record that the hammer was concealed by the appellant inside the well, which was recovered at his instance on the basis of his statement recorded under Ext.6 as per seizure list Ext.7. P.W.1 was suggested by the learned defence counsel in the cross-examination that the appellant was not mentally sound and that he was being treated for that purpose at Ranchi by her and her husband (P.W.2) but she has denied the suggestion. Similarly, P.W.2 was suggested that the appellant was of unsound mind for which he and his wife (P.W.1) were treating him at Ranchi, but he denied the same. Though a specific suggestion has been given to P.W.9 that the appellant was being treated at Ranchi due to unsoundness of his mind, but she has also denied such suggestion. Neither the medical documents have been proved in support of the medical treatment of the appellant nor has the doctor who was treating the appellant been examined by the defence. Therefore, when all the three witnesses, who were supposed to know about the unsoundness of mind of the appellant, if any, have specifically JCRLA No.83 of 2010 Page 37 of 39 denied the suggestion given by the learned defence counsel in that respect and no documentary evidence has been brought on record, it is difficult to accept that at the time of commission of offence, he was having unsoundness of mind. The conduct of the appellant at the time of occurrence and soon after the occurrence indicate that he was not in unsoundness of mind at the time of the occurrence, rather he was quite conscious of what he was doing and the evidence on record is also there that he had the motive for the commission of the crime as he was persuading P.W.2 to get a share from the properties, but had remained unsuccessful. Conclusion: 11. In view of the foregoing discussions, we are of the view that through the evidence of the eye witness (P.W.9) coupled with the evidence of P.Ws.1 and 2 and the medical evidence and also the recovery of the weapon of offence (hammer) from the well at the instance of the appellant, the prosecution has clearly established the charge against the appellant. We find no infirmity or illegality in the impugned judgment and order of conviction of the learned trial Court in convicting the appellant under section 302 of I.P.C. and imposing the sentence as already stated. JCRLA No.83 of 2010 Page 38 of 39
Decision
In the result, the Jail Criminal Appeal being devoid of merit, stands dismissed. Lower Court record along with a copy of the judgment be sent to the concerned Court. Before parting with the case, we would like to put on record our appreciation to Mr. Purna Chandra Behera, learned counsel for his preparation and presentation of the case before the Court and rendering valuable help in arriving at the decision above mentioned. This Court also appreciates the valuable help and assistance rendered by Mr. Sarat Pradhan, learned Additional Standing Counsel for the State. ................................. S.K. Sahoo, J. .................................. Chittaranjan Dash, J. Orissa High Court, Cuttack The 19th November, 2024 S.K. Parida, ADR-cum-APS Signature Not Verified Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 26-Nov-2024 16:50:08 JCRLA No.83 of 2010 Page 39 of 39