The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.421 of 2011 In the matter of an Appeal under section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 17th May, 2011 passed by the learned Sessions Judge, Kalahandi-Nuapada at Bhawanipatna in Sessions Case No.4 of 2009. Khirasindhu Dalai …. Appellant ---- -versus- State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
we find that the evidence of I.O. (P.W.12), who had held autopsy over the dead body of the deceased. His report (Ext.2) is also finds mention of the injuries noticed on the dead body of Brundaban. The other witnesses including P.W.3 has stated Brundaban to have sustained such injuries all over his body leading to his death. With such overwhelming evidence on CRLA No.421 of 2011 Page 6 of 9 {{ 7 }} record going unassail, we are left no other option but to concur with the findings of the Trial Court that Brundaban met a homicidal death. Having said as above now arises the crucial issue as to whether the prosecution has proved by leading clear, cogent and acceptable evidence beyond reasonable doubt that it is this accused who had inflicted all those injuries upon Brundaban. The star witness for the prosecution is P.W.3. At this stage, it be stated that there is no bar in the eye of law to base a conviction upon the solitary testimony of a witness. However, the court in doing so would certainly seek that the evidence of that solitary witness is of sterling quality and free from any doubt as regards his witnessing the incident. The accused is none other than the nephew of the mother of this P.W.3 and the deceased is the son of the aunt of P.W.3. So, this P.W.3 is related both to the accused and deceased in the above way. His evidence is that during early morning on that day which was the Saturday, he was gone to the stream with deceased Brundaban to brush his teeth. When they were brushing the teeth, the accused Khirasindhu came with an axe and attempted to inflict one axe blow upon the deceased which missed. He further states that Brundaban then started running and he crossed one plot. But when he was on the other plot and CRLA No.421 of 2011 Page 7 of 9 {{ 8 }} running, accused continued to chase him and finally inflicted one blow on him on his left arm and ear. Brundaban when bent down accused then inflicted successive axe blows which lead to the fall of Brundabn. He further states that the deceased met his death then and there at the spot which was the land of Pabitra Dalai. His evidence is that the son of Pabitra, namely, Jhunu had also seen the incident. This P.W.3 being cross-examined by the defence, we find absolutely no such material to have been elicited to impeach any part of his evidence as stated above. There is no material to raise any doubt with regard to his presence at the spot with the deceased Brundaban. Even no other material has been brought out from the evidence of other witnesses examined from the side of the prosecution to adversely view the evidence of P.W.3. It is no doubt true that P.W.4 has not supported the prosecution case and has denied to have any knowledge about the occurrence much less to say about the role of the accused. But that, itself, is not enough to discard the rock solid evidence of P.W.3 more so when we find that P.W.4 has categorically has stated that P.W.3 complained before him that the accused was killing Brundaban which rather goes to reaffirm the presence of P.W.3 at the time of occurrence and his position as the eye- witness. CRLA No.421 of 2011 Page 8 of 9 {{ 9 }} 11. On the conspectus of the analysis of the evidence made hereinbefore, this Court finds that the judgment of conviction in convicting the Appellant (accused) under section 302 IPC by holding the prosecution to have proved the charge against the Appellant (accused) beyond reasonable doubt has to sustain as also the order of sentence. 12.
Arguments
Mr. S.K. Lenka (Advocate) For Respondent - Mr.P.K. Mohanty, Addl. Standing Counsel CORAM: MR. JUSTICE D.DASH MR. JUSTICE G. SATAPATHY Date of Hearing : 19.12.2023 : Date of Judgment:08.01.2024 D.Dash,J. The Appellant, in this Appeal, assails the judgment of conviction and order of sentence dated 17th May, 2021 passed by the learned Sessions Judge, Kalahandi-Nuapada at Bhawanipatna CRLA No.421 of 2011 Page 1 of 9 {{ 2 }} in Sessions Case No.4 of 2009 arising out of G.R. Case No.293 of 2008 corresponding to Dharamgarh P.S. Case No.50 of 2008 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Dharamgarh. The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’) and accordingly he has been sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for six months. 2. Prosecution Case:- On 31.05.2008 around 6.30 p.m. one Brundaban Naik had gone to the land of Pabitra Dalai situated in village Bagad. When Brundaban was brushing his teeth, it is said that the accused came there being armed with a tangia and then dealt several blows upon Brundaban on different parts of his body leading to his instantaneous death. It is stated that the accused intentionally caused the death of Brundaban since he had prior enmity with him. One Uttam Pradhani (P.W.3) had seen the incident. On that day around 8.15 a.m. the uncle of Brundaban, namely, Banabihari Dalai (Informant-P.W.1) lodged a written report with the Officer- in-Charge (OIC), Dharamgarh Police Station. CRLA No.421 of 2011 Page 2 of 9 {{ 3 }} On receiving the written report from the Informant (P.W.1), the OIC of Dharmagarh Police Station (P.W.12) immediately registered P.S. Case No.50 of 2008 and took up investigation. 3. In course of investigation, the Informant (P.W.1) being examined first, then the statements of other witnesses were recorded upon their examination by the Investigating Officer (P.W.12). He then visited the spot and prepared the spot map. One tangia stained with blood lying near the spot was also seized in presence of witnesses. He also seized the sample earth and blood stained earth and thereafter, the wearing apparels of the deceased and accused have been seized. After holding the inquest over the dead body of the deceased, the dead body was sent for post mortem examination. The accused, being apprehended was forwarded in custody to Court. The incriminating articles were sent for chemical examination through Court. On completion of the investigation, the Investigating Officer (P.W.12) submitted the final form placing the accused for the trial for commission of offence under section 302 IPC. 4. Learned S.D.J.M., Dharmagarh, on receipt of the above report, having taken cognizance of the offence, after observing all the formalities, committed the case to the Court of Sessions for CRLA No.421 of 2011 Page 3 of 9 {{ 4 }} Trial. That is how the trial commenced against this accused by framing the charge for the above offence. 5. In the Trial, the prosecution has examined in total twelve (12) witnesses. Out of whom, as already stated, P.W.1 is the Informant and he happens to be the uncle of the deceased. P.W.2, P.W.3 and P.W.4 are the aunt, maternal brother and cousin of the deceased respectively. The witness to the seizure of incriminating articles is P.W.5 and P.W.6. The Doctor, who had conducted the post mortem examination over the dead body of the deceased, has been examined as P.W.7. P.W.8 is another Medical Officer who examined the accused. The Investigating Officer has come to the witness box at the end as P.W.12. Besides the oral evidence, being piloted through the above witnesses; the prosecution has also proved certain documents, which have been admitted in evidence and marked Exts.1 to 16. Important, out of those are the FIR marked Ext.1, the inquest report (Ext.2) and Ext.6 is the post mortem report, Ext.14 is the spot map whereas Ext.16 is the chemical examination report. The axe has been produced during the trial, which has been marked as Material Objects (M.O.I). 6. The plea of the defence is that of complete denial and false implication. CRLA No.421 of 2011 Page 4 of 9 {{ 5 }} 7. Learned counsel for the Appellant submitted that the entire case of the prosecution is based upon the evidence of P.W.3 whose solitary testimony has been taken by the court as sufficient to fasten the guilt upon the accused. According to him, the Trial Court having not gone for detail scrutiny of evidence of P.W.3 has unnecessarily branded him to be a wholly reliable witness and as such his version to be the gospel truth. Inviting out attention to the deposition of P.W.3, he contended that the same indicates so many improbabilities as to the happenings of the incident, which have not been taken into account by the Trial Court. Thus, according to him, even though the prosecution has proved that Brundaban met a homicidal death on account of the injuries inflicted on different parts of his body by means of a sharp cutting weapon, the finding of the Trial Court that it is the accused, who is the author of such injuries caused on the deceased Brundaban cannot be sustained. 8. Learned counsel for the Respondent-State submitted all in favour of the finding returned by the Trial Court. According to him, the evidence of P.W.3 is free from any such contradiction and he has deposed in quite a natural manner and his presence has been well established as there is no material on record to raise any doubt with regard to the same. CRLA No.421 of 2011 Page 5 of 9 {{ 6 }} 9. Keeping in view the submissions made, We have carefully read the impugned judgment passed by the Trial Court. We have also travelled through the depositions of the witnesses (P.W.1 to P.W.12) and have perused the documents such as Ext.1 to Ext.16. 10. The prosecution in order to prove the nature of death of Brundaban has examined P.W.7, the Doctor who had conducted autopsy over the dead body of the deceased. As per his evidence which he too had noted in his report (Ext.6), the deceased was found to have sustained five lacerated wounds on different parts of his body more importantly two on the head region. His evidence is that the death was on account of haemorrhagic shock and massive blood loss due to multiple injuries. He has categorically stated that the nature of death is homicidal. The seized tangia being examined by him, his opinion has also been in the affirmative that said incised injuries were possible by means of that weapon (M.O.I). Over and above the evidence of P.W.7,
Decision
In the result the Appeal stands dismissed. The judgment of conviction and order of sentence dated 17th May, 2021 passed by the learned Sessions Judge, Kalahandi-Nuapada at Bhawanipatna in Sessions Case No.4 of 2009 are hereby confirmed. G. Satapathy, J. I agree. (D. Dash) Judge. (G. Satapathy) Judge. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 09-Jan-2024 14:36:19 CRLA No.421 of 2011 Page 9 of 9