The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.32 of 2019 In the matter of an Appeal under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 6th March, 2019 passed by the learned Additional Sessions Judge, Paralakhemundi, Gajapati in S.T. No.60 of 2017. Santa Sabar @ Panda ---- -versus- …. Appellant State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode) For Appellant - Mr.Bijay Kumar Behera-1 (Advocate as Amicus Curiae) For Respondent - Mr.G.N.Rout, Additional Standing Counsel
Legal Reasoning
questioned during the trial, we are of the view that Padan met a homicidal death. 11. Proceeding to address the submission of the learned counsel for the Appellant as regards the acceptability of the evidence of P.Ws.2, 3 & 4, who has been projected as the eye witnesses to the occurrence and whose evidence have been relied upon by the Trial court to hold the accused guilty for committing the murder of Padan and as such liable for commission of the offence under section 302 of the IPC, we feel it apposite to first have a glance at the evidence of P.W.1. P.W.1, the Informant of the case is the father of the deceased. It is his evidence that his nephew Prafulla (P.W.2) and Manasi (P.W.4) came and told him that accused killed his son Padan by giving a Dau blow and when, he immediately rushed to the spot, he saw his son Padan lying dead and by then other villagers had also arrived. So, P.W.1’s evidence is to the effect that P.Ws.2 & 4 had seen the incident and had reported him about the same. This part of his evidence has not at all been attacked during cross-examination. JCRLA No.32 of 2019 Page 7 of 10 - 8 - Now, when we come to the evidence of P.W.2, it is seen that he had stated that after taking bath, he and Padan (deceased) were waiting and when Padan was wearing dress after bath, the accused gave a Dau blow on his neck, which led to his fall on the ground and death there at the spot. It is also his evidence that by such blow, the body and head of Padan were separated, which shows the force with which the blow had been dealt. The evidence of P.W.2 has also not faced any challenge particularly about the role of the accused in giving the blow by that Dau nor anything has been asked in raising any doubt as to his presence. Same remains the version of P.W.3, who is the nephew of P.W.1. It is his evidence that after taking bath, he, P.W.2 & P.W.4 were waiting for the deceased. He has further stated that when the deceased bent down to clean the water from his legs, which slightly of course varies from the evidence of P.W.2, who has stated that when he was going to change his dress, the accused came and gave that blow by means of Dau on the back of of Padan’s neck. The discrepancy between the evidence of P.Ws.2 & 3, as above, in our view is too minor in nature that it would have any adverse impact on the positive evidence of P.Ws.2 & 3 as regards the accused coming and giving the blow upon the deceased by Dau. He (P.W.3) has further stated that the Dau in question was recovered at the instance of the accused when he led the police and others to the place in giving such recovery, JCRLA No.32 of 2019 Page 8 of 10 - 9 - which was then seized under seizure list (Ext.4). He has clearly stated that there was no interaction between the accused and the deceased about the allegation of rape. Giving a careful reading to the entire deposition of P.W.3, we are unable to notice any infirmity, inconsistency or discrepancy. Rather, we find his evidence to be at par with the evidence of P.W.2 in every respect. The evidence of P.W.4. is the same that the accused came and when the deceased had bent, the accused gave the Dau blow on the back of his neck, which resulted his fall and instantaneous death. This witness, having been cross-examined, we find the same state of affair that no such infirmity has surfaced therefrom. All the above witnesses have stated that the accused was a habitual drunkard. The evidence of P.W.6 provide corroboration to the evidence of the above witnesses as also the part evidence of P.W.3 as regards the seizure of Dau pursuant to the statement of the accused and his leading to the particular place where it had been kept. P.W.7 is an after occurrence witness whose evidence is like the evidence of P.W.1. The evidence of P.Ws.1 & 7 provide corroboration to the evidence of other witnesses as already discussed when they have stated to have been informed by them after seeing the incident and by running to them. We find no reason or justification to push the evidence, as narrated above, JCRLA No.32 of 2019 Page 9 of 10 - 10 - beyond the arena of consideration. In our view the evidence, being free from infirmity, the prosecution has proved the charge against the accused beyond reasonable doubt. 12.
Arguments
CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Date of Hearing : 23.02.2024 : Date of Judgment : 29.02.2024 D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and the order of sentence dated 6th March, 2019 passed by the learned Additional Sessions Judge, Paralakhemundi, Gajapati in S.T. No.60 of 2017 arising out of G.R. Case No.102 of 2012 corresponding to JCRLA No.32 of 2019 Page 1 of 10 - 2 - Rayagada P.S. Case No.13 of 2017 of the Court of the learned Sub- Divisional Judicial Magistrate (S.D.J.M.), Paralakhemundi. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.2,000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment foe six (6) months for commission of the said offence. 2. Prosecution Case:- On 07.03.2017 around 5.00 p.m., when Padan Sabar, the son of Jay Sabar (Informant-P.W.1) was going to take bath, the accused suddenly assaulted him on his backside of the neck by means of a Dau (concave shaped sharp cutting weapon), which resulted his death instantaneously. Jay Sabar, the father of Padan (deceased) then lodged a written report with the Inspector-in- Charge of Rayagada P.S. The IIC, treating the same as FIR (Ext.1), registered the case and took up investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.9) examined the Informant (P.W.1) and other witnesses and recorded their statements under section 161 of Cr.P.C. Having visited the spot, the I.O. (P.W.9) prepared the spot map (Ext.10). He (P.W.9) held the inquest over the dead body of the deceased JCRLA No.32 of 2019 Page 2 of 10 - 3 - and prepared the report (Ext.2) and sent the same for post mortem examination by issuing necessary requisition. He (P.W.9) seized the blood stained and sample earth earth under the seizure list (Ext.3). Thereafter, the I.O. (P.W.9) arrested the accused. It is stated that the accused, while in police custody, gave the statement to have concealed the weapon, i.e, Dau and stated that if he would be taken to the place, he would give recovery of the same. Pursuant to the statement (Ext.7), the accused is said to have led the I.O. (P.W.9) and other witnesses in giving recovery of Dau, which was seized under seizure list (Ext.4). The wearing apparels of the accused were seized under seizure list (Ext.5). The post mortem report being received, the I.O. (P.W.9) made query from the Doctor (P.W.5) and received a reply that the injury might have been caused by the seized Dau. The seized incriminating articles were sent for chemical examination through Court. On 22.06.2017, P.W.9 handed over the charge of the investigation to the Sub-Inspector (S.I.) of Police (P.W.10), who submitted the Final Form placing this accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Paralakhemundi, on receipt of the Final Form, took cognizance of said offence and after observing the formalities, committed the case to the Court of Sessions. That is JCRLA No.32 of 2019 Page 3 of 10 - 4 - how the Trial commenced by framing the charge for the aforesaid offence against the accused. 5. The prosecution, in support of its case, has examined in total ten (10) witnesses during Trial. As already stated, the informant, who happens to be the father of the deceased is P.W.1 whereas P.Ws.2 & 3 are the nephews of the Informant (P.W.1). P.Ws.4, 6 & 7 are the independent witnesses to the occurrence. P.W.5 is a seizure witness. The Doctor, who held the autopsy over the dead body of the deceased is P.W.8. The I.O. of the case, who has done major part of the investigation, has been examined as P.W.9 and the S.I. of Police (P.W.10), who submitted the Final Form, has come to the witness box as P.W.10. Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 12. Out of those; important are the FIR (Ext.1); inquest report (Ext.2); post mortem report (Ext.8); and the spot map (Ext.10). The chemical examiner’s report had been admitted in evidence and marked Ext.12. 6. The accused, having taken the plea of complete denial and false implication, has, however, not tendered any evidence in support of the same. JCRLA No.32 of 2019 Page 4 of 10 - 5 - 7. Mr.B.K.Behera-1, learned counsel for the Appellant (accused) submitted that the entire case of the prosecution is based on the evidence of P.Ws.2, 3 & 4. According to him, these three witnesses cannot be said to be the eye witnesses to the occurrence and what they have narrated about the happenings in the incident especially as regards the role of the accused therein ought not to have been believed. He submitted that in view of the prior incident, which had come to the light that the sister of the accused had been sexually exploited by the deceased in order to take revenge, this accused has been falsely roped in the case. He further submitted that the evidence of P.Ws.2, 3 & 4 when read simultaneously, it would be evident that those do not tally with one another on material particulars and, therefore, the evidence of none of the witnesses would stand accepted. He urged that the impugned judgment of conviction and order of sentence are liable to be set aside. 8. Mr.G.N.Rout, learned Additional Standing Counsel for the Respondent-State, while supporting the finding of guilt of the accused, as has been returned by the Trial Court, submitted that the evidence of P.Ws.2, 3 & 4 do not contain any such infirmity so as to even proceed to view those with some suspicion. According to him, there has been absolutely no challenge to their evidence in respect of their presence, happenings in the incident part played and the act done by the accused. He submitted that the accused, JCRLA No.32 of 2019 Page 5 of 10 - 6 - having taken the plea of simple denial when these three witnesses are stating against him in a consistent manner, there stands no reason to discard the evidence of these witnesses; more-so when the evidence receive corroboration from the medical evidence falling from the lips of the Doctor (P.W.8), who had conducted the post mortem examination over the dead body of the deceased and has said that the death was homicidal in nature and the injuries were possible by means of the weapon (Dau) seized in course of investigation. 9. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the prosecution (P.Ws.1 to 10) and have perused the documents admitted in evidence marked as Exts.1 to 12. 10. It is not in dispute that the death of Padan was homicidal in nature. The Doctor (P.W.8), who had conducted the post mortem examination over the dead body of Padan, has stated about the large cut throat injury placed obliquely over the neck, which transversely cut the large vessels and vertebral column as also multiple abrasions of different sizes present over the left side of abdomen and left knee. The injury no.1 is fatal with the Dau seized and examined by P.W.8. The evidence of the I.O. (P.W.9), who had held inquest over the dead body of the deceased, is to JCRLA No.32 of 2019 Page 6 of 10 - 7 - the effect that he had seen such injuries on the neck of other parts of the body and had reflected in the inquest report (Ext.2). Other witnesses have also stated to have seen the deceased with all these injuries. Such evidence on record when have not been
Decision
In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 6th March, 2019 passed by the learned Additional Sessions Judge, Paralakhemundi, Gajapati in S.T. No.60 of 2017, are hereby confirmed. G.Satapathy, J. I Agree. (D. Dash) Judge (G.Satapathy) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 01-Mar-2024 17:59:52 JCRLA No.32 of 2019 Page 10 of 10