The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.38 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 22nd January, 2019 passed by the learned Sessions Judge, Angul, in C.T. (s) No.181 of 2016. Kanduru Sahu …. Appellant ---- -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr.Swayamjit Rout (Advocate) For Respondent - Mr.S.K. Nayak, Additional Government Advocate CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI Date of Hearing : 15.05.2023 : Date of Judgment:21.06.2023 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 22nd of January, 2019, in C.T. (s) No.181 of 2016 arising out of G.R. Case No.365 of 2016 corresponding to JCRLA No.38 of 2019 Page 1 of 12 {{ 2 }} Banarpal P.S. Case No.43 of 2016 of the Court of the learned Sub- Divisional Judicial Magistrate (S.D.J.M.), Angul. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, 8the IPC9) and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for one (1) year for the offence under section 302 IPC. 2. Prosecution Case:- On 21.03.2016, the accused had placed the mahua flowers in his courtyard under the sun for drying those. The cows of Jema Sahu (deceased), having entered into the courtyard of the accused, had eaten away those mahua flowers. The accused, therefore, had a quarrel with the deceased. On 22.03.2016 around 6.30 a.m. in the morning, the accused arrived at the house of Jema carrying tangia (axe) and it is said that he assaulted Jema by means of tangia (axe) causing bleeding injuries on her head, back and neck. The son of Jema (Informant-P.W.1), receiving said information about the assault on his mother, rushed to the spot. The accused, seeing his mother, ran away carrying the tangia (axe) with him. Thereafter one ambulance was immediately called and Jema was shifted to the District Headquarters JCRLA No.38 of 2019 Page 2 of 12 {{ 3 }} Hospital, Angul where she was declared dead. The Informant (P.W.1) then lodged the written report with the Inspector-in- Charge (I.I.C.) of Banarpal. The I.I.C. having received the same, treated
Legal Reasoning
it as First Information Report (F.I.R.-Ext.1) and registering, the case, immediately took up the investigation. 3. In course of investigation, the Investigating Officer (I.O.- P.W.13) examined the Informant (P.W.1) and recorded his statement and those of other witnesses under section 161 of the Code of Criminal Procedure, 1973. He visited the spot and prepared the spot map (Ext.8). He also seized the sample earth and blood stained earth under the seizure list (Ext.3). He then having held inquest over the dead body of the deceased, which was lying in the District Head Quarters Hospital, Angul, prepared his report (Ext.2) and sent the dead body of Jema for post mortem examination by issuing necessary requisition. The accused thereafter being arrested, gave his statement as regards the keeping of the tangia (axe) in a place known to him and his statement was so recorded by the I.O. (P.W.13) and marked as Ext.10. The accused thereafter led the I.O. (P.W.13) and others near the straw heap behind his house and gave recovery of that tangia (axe) from inside the straw heap, which was seized under seizure list (Ext.11). The I.O. (P.W.13), then sent the incriminating article for chemical examination through Court and on JCRLA No.38 of 2019 Page 3 of 12 {{ 4 }} completion of the investigation, he submitted the Final Form placing the accused to face the Trial for commission of the offence under section 302 of the IPC. 4. Learned S.D.J.M., Angul, 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 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 eighteen (13) witnesses during trial. As already stated, P.W.1, who is the son of the deceased is the Informant and his wife is P.W.2 whereas P.W.3 is his elder brother. The younger brother of the deceased, i.e., the maternal uncle of P.W.1 has been examined as P.W.4 and his son has come to the witness box as P.W.5. P.W.6 is the son-in-law of the deceased whereas P.W.7 is another brother of the Informant (P.W.1). The scribe of the F.I.R. (Ext.1) is P.W.8 and the witness to the statement of the accused before the police while in police custody has been examined as P.W.9. The Doctor, who had conducted the post mortem examination over the dead body of the deceased has been examined as P.W.10. The I.O. has come to the witness box at the end as P.W.13. JCRLA No.38 of 2019 Page 4 of 12 {{ 5 }} 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 14. Out of those, important are the FIR (Ext.1); inquest report (Ext.2); post mortem report (Ext.4); and the statement of the accused (Ext.10) as also the Chemical Examiner9s report (Ext.14). 6. The plea of the accused is that of complete denial. No evidence has, however, been tendered from the side of the accused in support of his evidence. 7. The Trial Court, upon examination of the evidence of the Doctor (P.W.10), who had conducted the autopsy over the dead body of the deceased and his report (Ext.4) as well as the the evidence of the I.O. (P.W.13), who held the inquest over the dead body of the deceased and prepared the report, which has been proved as Ext.2 and those of other witnesses, has arrived at a conclusion that the deceased has met a homicidal death. In fact, said aspect of the case was not under challenge before the Trial Court and that is also the position before us in this Appeal. The Doctor (P.W.10), during post mortem examination, has sated to have found three numbers of lenear cut injuries on the back side of the chest of the deceased. He had also noticed lacerated injury of size 1 ‰ X 1 cm brain deep on scalp occipital area, cutting occipital bone into brain with hematoma of size 199 X JCRLA No.38 of 2019 Page 5 of 12 {{ 6 }} 199 over the scalp. On dissection, P.W.10 had noticed the injury to brain near occipital area. As per his evidence, all such injuries are ante mortem in nature and the cause of death was on account of the haemorrhage and shock due to injury to the brain. It is his further evidence that such injuries are possible by means of that tangia (axe), which he had the occasion to examine. All these have been noted by the Doctor (P.W.10) in his report Ext.4. The Informant (P.W/.1) has also stated to have seen her mother lying dead with injuries on head, back and neck. That has also been the evidence of P.Ws.1, 3, 4 & 6. The I.O. (P.W.13) has also so noted during his inquest. With such voluminous evidence on record, which have remained unquestioned, we find absolutely no difficulty in agreeing with the finding of the Trial Court that Jema (deceased) met a homicidal death.
Legal Reasoning
8. Mr.S. Rout, learned Amicus Curie for the Appellant (accused) submitted that the Trial Court, without proper analysis of evidence and their appreciation, has returned the finding that it is the accused, who is the author of the crime and has intentionally caused the death of Jema (deceased) by dealing blows on her head, neck and other parts of the body. He further submitted that the evidence of the so-called eye witnesses (P.Ws.1, 2 & 3) have not been scrutinized by the Trial Court from every possible angle in the backdrop of the circumstances JCRLA No.38 of 2019 Page 6 of 12 {{ 7 }} emanating from the evidence available on record. He also submitted that when scrutiny of the evidence, in view of the relationship of the deceased and other witnesses, was required to be made on a higher degree, the Court has not even adopted the minimum standard in scrutinizing the evidence of said witnesses. He has invited our attention to the depositions of other three witnesses, which would be discussed later. He further submitted that no support ought to have been derived by the Trial court from the evidence as to the detection of human blood of Group-A on the said seized tangia (axe) when the recovery of that tangia (axe) at the instance of the accused pursuant to his statement by leading the police and other witnesses to the place where it was kept, i.e., in the straw heap has not been proved and, therefore, merely the matching of the blood group is practically of no significance. 9. Mr.S.K. Nayak, learned Additional Government Advocate for the Respondent-State, submitted that scrutinizing the evidence of P.Ws.1, 2 & 3 from every possible angle, it is not possible for a moment to term those as unreliable witnesses and their version as untrustworthy, which is also not permissible in case of the evidence of the witnesses, who have stated about the recovery of tangia (axe) at the instance of the accused. Therefore, according to him that tangia (axe) recovered at the instance of the JCRLA No.38 of 2019 Page 7 of 12 {{ 8 }} accused from the place, which was only known to him and not accessible to any other and that has also been connected with the crime as the blood group of the deceased is matching with the group of the human blood detected on the tangia (axe), the Trial Court did not commit no mistake in convicting the accused. 10. 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 13) and have perused the documents admitted in evidence marked as Exts.1 to 14. 11. In order to address the rival submission, in testing the sustainability of the finding of guilt of the accused, as has been returned by the Trial Court, we are now called upon to undertake to exercise of scrutinizing the evidence of the prosecution witnesses, more importantly P.Ws.1, 2 & 3. It has been stated by P.W.1 that at the relevant time, he was just at a little distance from the spot and his mother was standing near the door. He has further stated that at that point of time, the accused arrived on their threshing floor holding a tangia (axe) and gave blows on the head, back and neck of his mother. Hearing about the incident, when he proceeded to the spot, accused ran away holding the tangia (axe). He has also stated that it was then early morning around 6.30 a.m. It has also been his JCRLA No.38 of 2019 Page 8 of 12 {{ 9 }} evidence that on the previous day, the accused quarreled with his mother as their cow had trespassed into the bari of the accused. During cross-examination, it has been specifically elicited that accused had dealt four blows on his mother. This witness being asked to say the detail specification of that tangia (axe), has so stated. When he has been asked during the cross-examination asked as to who-else had seen the incident of assault by the accused on his mother, he has gone to state that besides himself, that means reasserting his presence, he has told that his wife, sisters and some other villagers had seen the murderous assault on his mother. He, however, then having not been able to name the villagers; that in our view is not of that significance at all to doubt the evidence of the witnesses. The FIR version remains the same in respect of material parts, which this P.W.1 has deposed. The evidence of P.W.2, who is the wife of P.W.1 is also in the same vein. She has deposed that there was a quarrel between the accused and the deceased and on the next morning around 6.30 a.m., when she, her mother-in-law (deceased) and her elder sister-in-law (P.W.3) were standing at the spot, the accused arrived there holding the tangia (axe) and all of a sudden, gave four blows on her mother-in-law (deceased), which fell on her head, back and neck. She has also provided corroboration to the evidence of P.W.1 in stating that P.W.1 then was at a little JCRLA No.38 of 2019 Page 9 of 12 {{ 10 }} distance and when immediately rushed to the spot, the accused ran away carrying that tangia (axe). Giving a careful reading to the cross-examination portion of the deposition, we find absolutely no such material to have been elicited from her to doubt her version. When suggestion has been thrown that she had not stated about the details of the blows given upon the deceased in her previous statement that has also not been proved through the I.O. (P.W.13) and thus its not worthy consideration at all. Having thrown with the suggestion that she had not seen the assault and was depositing falsehood, she had denied the same stoutly. P.W.3 is the elder sister of P.W.1 and she has also stated that when she, with P.W.2 and their mother were standing near their house, she was at a distance of 30 feet from them. Her evidence is that the accused arrived and dealt blows on her mother by means of that tangia (axe). She further states that immediately P.W.1 arrived at the spot and thereafter arrangement was made for her mother being shifted to Hospital and that she too had accompanied. This witness has been suggested that he had not stated before the police as to the distance at which she was standing at that time from the place where the assault upon her mother took place that again we find to have not been proved through the I.O. (P.W.13), which does not merit any consideration. Through cross-examination, no such JCRLA No.38 of 2019 Page 10 of 12 {{ 11 }} circumstances have come to discredit the version of P.W.3 in any manner. We thus find that the evidence of these three witnesses which are directly related to the deceased are quite consistent with one another in so far as the happenings of the incident is concerned as also the role played by the accused in dealing the blows upon the deceased by that tangia (axe). The evidence also receives the corroboration from the Doctor (P.W.10), who having examined the tangia (axe), which was seized in course of investigation has clearly stated that with such tangia (axe), the injuries noticed upon the deceased during post mortem examination were possible. We find the evidence of P.Ws.1, 2 & 3 to be wholly trustworthy and merely because they are related to the deceased, that is no ground to suspect their version when otherwise their version appear to be credible and reliable. 12. With the above ocular testimony of P.Ws.1, 2 & 3, we too find the evidence of the I.O. (P.W.13), who has recorded the statement of the accused while in police custody (Ext.10). It is his evidence that the accused led him and others near the straw heap on the back side of his house and therefrom he gave recovered of that tangia (axe), which was seized under seizure list (Ext.11). Although the witness to such recovery (P.W.9) has turned hostile, yet we find no reason to disbelieve the evidence of P.W.13 when the same is supported by the proof of contemporaneous JCRLA No.38 of 2019 Page 11 of 12 {{ 12 }} document in connection with the same. In addition to the above, we too find that the prosecution has proved the nexus between the tangia (axe) and the crime as the tangia (axe) was found to contain human blood of Group-A which is the blood group of the deceased and that is not at all explained by the accused. 13. On a conspectus of analysis of the evidence hereinabove, this Court finds that the prosecution has proved its case against the accused as having committed the murder of Jema beyond reasonable doubt 14.
Decision
In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 22nd January, 2019 passed by the learned Sessions Judge, Angul, in C.T. (s) No.181 of 2016 are hereby confirmed. Dr.S.K. Panigrahi, J. I Agree. (D. Dash), Judge. (Dr.S.K. Panigrahi), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 22-Jun-2023 16:09:08 JCRLA No.38 of 2019 Page 12 of 12