The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO.267 OF 2016 In the matter of an Appeal under section-374(2) of the Code of Criminal Procedure and from the judgment of conviction and order of sentence dated 22nd February, 2016 passed by the learned Sessions Judge, Rayagada in C.T. Case No.102 of 2013 arising out of G.R. Case No.91 of 2013 corresponding to Tikiri P.S. Case No.29 of 2013 of the Court of learned J.M.F.C., Kashipur. ---- Sanu @ Sonu Majhi …. Appellant -versus- State of Odisha …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode: ================================================= For Appellant - Mr. Devasish Panda, Advocate. For Respondent - Mr. S.K. Nayak, Addl. Government Advocate. CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING : 11.05.2023 : DATE OF JUDGMENT:19.05.2023 D.Dash, J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 22nd February, 2016 passed by the learned Sessions Judge, Rayagada in C.T. Case No.102 of 2013 arising out of G.R. Case No.91 of 2013 corresponding to Tikiri P.S. Case No.29 CRLA NO.267 OF 2016 Page 1 of 14 {{ 2 }}
Legal Reasoning
of 2013 of the Court of learned Judicial Magistrate First Class (J.M.F.C.), Kashipur. The Appellant (accused) has been convicted for commission of 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. 2. Prosecution case is that accused and his wife-Biskudi(P.W.8) in view of the dissension between them were living in separate houses in the same village. The accused under the influence of liquor often used to harass his wife (Bisikudi-P.W.8). On 30.03.2013 evening, the accused came to the house where his wife was residing by taking the said house on rent. He took away the Mahua flowers collected by his wife. So Biskudi (P.W.8) protested; the accused then assaulted her and threatened to take away her life. Sometime later, the accused came out of his house carrying a knife in his hand and was proceeding to the house of his wife, where her wife was residing. On the village road, one Goi Majhi, who happens to be the cousin of the accused obstructed the accused in order to prevent him from assaulting his wife-Biskudi. The accused then is stated to have stabbed that Goi Majhi near his left ribs. Receiving the stab injury, Goi fell down and died at the spot. The villagers rushed to the place and guarded the dead body for the night. Page 2 of 14 CRLA NO.267 OF 2016 {{ 3 }} Hana Majhi, another cousin of the accused (P.W.5) lodged a report written by Bidyadhar Duria (P.W.1) with the Inspector-In-Charge (IIC) of the Tikiri Police Station. The IIC having received the written report, treated the same as F.I.R. (Ext.1) and registering the case, took up the investigation. 3. In course of investigation the Investigating Officer (P.W.9) examined the Informant (P.W.5) and the scribe of the F.I.R. (P.W.1). He then visited the spot and prepared the spot map (Ext.6). The dead body of Goi was found lying at the spot. The I.O.(P.W.9) held inquest over the dead body in presence of witnesses, prepared the report-Ext.2. He then seized the blood stained and sample earth under the seizure list marked as Ext.3 and also blood stained knife being produced by P.W.6 under seizure list Ext.4. The dead body of Goi was sent for postmortem examination by issuing necessary requisition. The I.O. (P.W.9) examined other witnesses in the village and after postmortem examination seized wearing apparels of the deceased which were produced before him by the Police Constable, who had deputed to carry the dead body for postmortem examination. The accused being arrested was medically examination. His wearing apparels as well as the nail clipings collected by the Medical Officer were also seized under seizure list, Ext.9. In course of investigation, the I.O. (P.W.9) also made the query seeking the Page 3 of 14 CRLA NO.267 OF 2016 {{ 4 }} opinion of the Doctor (P.W.10), who had conducted the autopsy over the dead body of the deceased as regards the possibility of injury being caused by that knife. The opinion was received. The accused was forwarded in the custody to the Court. The incriminating articles wsere sent for chemical examination to the Regional Forensic Science Laboratory through Court and the report to that effect Ext.13 was received. On completion investigation, the I.O. (P.W.9) submitted the Final Form placing the accused to face the Trial for commission of offence under section-302 of the IPC. 4. Learned J.M.F.C., Kashipur having received the Final Form as above, took cognizance of the above noted offence 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. 5. In the Trial, the prosecution examined in total ten(10) witnesses. As already stated P.W.5 is the Informant, who had lodged the F.I.R. (Ext.1) and scribe of the said F.I.R. is P.W.1. The wife of the accused centering whom the incident had taken place has been examined as P.W.8. The mother of the deceased who is stated to have seen the incident has come to the witness box as P.W.4, P.Ws. 2, 3 and 6 are the other witnesses to the occurrence. P.W.7 is a villager of the neighbouring Page 4 of 14 CRLA NO.267 OF 2016 {{ 5 }} village who having arrived on the following morning had gone with the Informant (P.W.5) to the Police Station. The Doctor who had conducted the postmortem examination over the dead body of the deceased has been examined as P.W.10 and the Investigating Officer is P.W.9. The prosecution besides leading the evidence by examining the above witnesses has also proved the several documents which have been admitted in evidence and marked Exts.1 to 13. Out of those, the F.I.R. as already stated is Ext.1; whereas the inquest report and postmortem report as Exts.2 and 10 respectively. The Chemical Examiner’s report is Ext.13 and the opinion of the Doctor is Ext.11/1. 6. The Trial Court having gone through the evidence of Doctor (P.W.10), who had conducted autopsy over the dead body of the deceased and his report, Ext.10 as also the evidence of the I.O. (P.W.9) and the inquest report, Ext.2 as well as the evidence of other witnesses who had seen Goi sustaining stab injury on his chest and lying dead; has come to the conclusion that Goi had met homicidal death. In fact, this aspect of the case was not under challenge before the Trial Court and that has also been the situation before us. 7. The defence plea is that of complete denial and false implication. The accused has led no evidence in support of his defence. CRLA NO.267 OF 2016 Page 5 of 14 {{ 6 }} 8. The, the Doctor holding postmortem examination over the dead body of Goi (P.W.10) has found the penetrating wound on the chest wall on the left situated with the 2 cm left to the nipple (left) of the size 2cmX2cmX5cm deep. The corresponding internal injury on dissection has also been noted and it is his evidence that the penetrating wound had
Decision
touched the heart. In view of the above, he has stated the death to have occurred on account of massive bleeding resulting from the rapture of heart. All these above clear noted in the postmortem Ext.10. The I.O. (P.W.9) has also noted such injury which he had seen in the inquest request report, Ext.2. Other witnesses have also stated that the deceased had received such injury on his chest. The Doctor (P.W.10) also deposed that said injury which he noticed on the chest of the deceased would be possible by the knife which was examined by her being sent by the I.O. (P.W.9). All these evidence has remained totally un-assailed. In view of the above, we find absolutely no difficulty in agreeing with the finding of the Trial Court that death of Goi was homicidal in nature. 9. Learned Counsel for the Appellant (accused) attacking the finding of the Trial Court that it is the accused who is the author of the stab injury found on the chest of the deceased which has caused his death submitted that the evidence of witnesses examined from the side of the prosecution in support of the same are not at all reliable. According to Page 6 of 14 CRLA NO.267 OF 2016 {{ 7 }} him, the Trial Court having not properly analyzed the evidence of all those witnesses, more particularly P.W. 4 and P.W.8 has erred in holding the accused guilty for committing the murder of Goi. Inviting our attention to the deposition of all the prosecution witnesses, he submitted that under no circumstance the prosecution can be said to have proved the fact that it is the accused who had caused the stab injury on the chest of the deceased beyond reasonable doubt. He, therefore, submitted that in view of the variance on material particulars as to the happening of the incident and the role of the accused as it appears in the evidence of witnesses, the accused is entitled to the benefit of doubt. 10. Learned Counsel for the State (Respondent) submitted all in favour of the finding returned by the Trial Court. According to him, the evidence of eye witnesses being very clear that the accused being obstructed by the deceased on his way as to the house of his wife holding the knife with a view to prevent him from doing harm to his wife caused the stab wound on the chest of the deceased and therefore, looking at the fact that the parties hail from the tribal pocket of the State and are rustic Adivasis being members of the Scheduled Tribe; such variance in their evidence as pointed out by the learned Counsel for the accused are not to be given any such importance which the Trial Court has thus rightly ignored. CRLA NO.267 OF 2016 Page 7 of 14 {{ 8 }} 11. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction passed by the Trial Court. We have also gone through the depositions of the witnesses, P.Ws. 1 to 10 examined from the side of the prosecution and have perused the documents admitted in evidence and marked Exts.1 to 11. 12. It is the evidence of P.Ws. 2, 3, 4, 5, 6 and 8 that the wife of the accused namely, Biskudi was living separately from the accused in the same sahi of the village and they all have stated that accused often used to quarrel with his wife and that in fact was the reason for Biskudi to have her separate stay with her children. The accused was thus not pulling on well with his wife has been stated by all the above witnesses in clear and unequivocal terms. The witnesses, P.Ws. 2, 3 and 8 have stated that on the relevant date, the accused had gone to the house of his wife and having taken away the Mahua flowers collected and dried by her had sold the same. It is also there in the evidence that when the wife of the accused had objected, accused got enraged and assaulted her. The evidence of the above witnesses on this factual aspect have not challenged from the side of the accused. It is the evidence of P.W.2 that in the evening wife of the accused complained about the fact that how she was being harassed by the accused and of that would go on, how she would maintain her five Page 8 of 14 CRLA NO.267 OF 2016 {{ 9 }} children which was the concern that she expressed. It is stated by P.W.2; that the accused then enraged and assaulted her. He also threatened to take away her life. He has further stated that accused went to his house and when he came out with the knife from his house, Goi (deceased) who is the cousin of the accused was standing in front of his house which adjoins the house of the accused. He has further stated that seeing the mood of the accused, Goi (deceased) intervened and obstructed his (accused) way in order to prevent him from going to his wife, Biskudi. This witness stated to be present at the relevant time in his house and from there to have seen the incident. He has further narrated that no sooner did Goi blocked the way of the accused and thus, prevented him to protest further, the accused stabbed on his left side chest by means of a knife for which the Goi (deceased) fell down. He also states to have immediately rushed to the spot and found Goi dead and as per his evidence, the accused then fled away. During cross-examination although the attention of this witness P.W.2 has been drawn by stating that he has told before the police that he had learnt about the incident from the mother of the deceased (P.W.4) and had not seen the incident himself in his own eyes, we find that the same has not been proved through the I.O. (P.W.9). For abundant caution lost it might have been a genuine omission on the part of the learned defence Counsel, we have verified the Page 9 of 14 CRLA NO.267 OF 2016 {{ 10 }} statement of this witness recorded under section-161 of the Cr.P.C. The verification reveals that this witness P.W.2 had very much told before the Police that he had seen the incident in his own eyes and not that he had only heard from the mother of the deceased (P.W.4). Thus the version of P.W.2 as to have seen the incident is not at all an improvement. As regards the conduct of this witness, to have not intervened, when the accused quarreled with his wife; which is highlighted as a feature to doubt the version; we are not impressed that the same would stand on the way of acceptance of the evidence of P.W.2 as regards the subsequent happening. During cross-examination, he has no doubt stated that accused was drunk at the relevant time, but it is stated that he was quite in sense. We find that in so far as the evidence of this witness relating to the last leg of the incident is concerned, where the accused is stated to have stabbed the deceased on his chest, no such material has been elicited from the P.W.2 to cast any doubt upon his version or view his evidence with suspicion. P.W.3 is the witness who had arrived at the spot after Goi (deceased) received the injury and when he was lying dead in front of his house with stab injury on his chest. He has however stated that mother of Goi (P.W.4) immediately told him that accused while proceeding with a knife towards the house of his wife, when came with the knife, the Page 10 of 14 CRLA NO.267 OF 2016 {{ 11 }} deceased intervened and when he obstructed him from proceeding further, he was stabbed by the accused on his chest. This evidence of P.W.3 shows the immediate disclosure of P.W.4, regarding the role of the accused. Now, let’s go to the evidence of P.W.4. She has been examined in Court through an interpreter being not able to speak Odia and only able to express herself in Kui dialect. The interpreter who is P.W.8 is a Process Server of the Court and he having been administered oath to interpret the statement of P.W.4 truthfully, has the administered oath to P.W.4 in Kui language. It is the evidence of P.W.4 that two years before it was around 8 pm, she was sitting in the front verandah of her house, when accused came with a knife from his house and was going towards the house where his wife-Biskudi was residing. She has stated that when accused arrived in from of their house, her son Goi prevented him from proceeding further in assaulting his wife by that knife. Her further evidence is that, the accused for such act of Goi got enraged and immediately stabbed with that knife in his left ribs below the arm pit. This part of the evidence of P.W.4, what we find has not at all been shaken. Learned Counsel for the accused submitted that the evidence of this witness when is to the effect that she having intervened had sustained Page 11 of 14 CRLA NO.267 OF 2016 {{ 12 }} injury on her palm by that knife and was medically examined; the injury report having not been proved; her evidence ought to be excluded from consideration. First of all it be stated that the deceased had absolutely no enmity with the accused and as per the evidence of all the witnesses the deceased having gone to save the life of the wife of the accused which he apprehended to be in danger by preventing the accused has been victim of the circumstance. The prosecution of course has not proved the injury report of P.W.4. But since it is not stated by the P.W.9 that he has sent this P.W.4 who is rustic Adivasi woman hailing from rural background, for medical examination, for such simple reason when there is no other material on record to view the evidence of P.W.4 with suspicion or doubt her evidence as regards the role of the accused, we are afraid to accept the submission of the learned Counsel accused to eschew the evidence of P.W.4 in entirety. The evidence of P.W.3 further supports the evidence of P.W.4 that she immediately had disclosed before him about the incident and role of the accused therein. Now comes the evidence of P.W.5. He also an eye witness and has stated that in the same line as regards all the happenings as has been described by P.W.4. But more importantly, it has been stated by him that the mother of the deceased (P.W.4) had rushed to the spot to rescue his son and accused had dealt a blow by knife on her right palm. So, the Page 12 of 14 CRLA NO.267 OF 2016 {{ 13 }} evidence of P.W.4 receives full corroboration from the evidence of P.W.5 that she was also injured in the said incident, when she had been to rescue to her son. Thus, merely because the I.O. has not got P.W.4 medically examined, that would not be enough to disbelieve P.W.4 altogether in saying that her testimony is not reliable and she is not a truthful witness. Learned Counsel for the accused placing the statement of P.W.5 elicited during cross-examination that by the time he came out again, Goi had fallen on the ground submitted that for the same, he cannot be taken to be an eye witness to have seen accused stabbing the deceased in our considered view is also not acceptable. The witness has narrated the details regarding the incident and has stated to have rushed to the spot. When he has further stated that one Sarathi Majhi examined as P.W.6 had snatched away the knife from the accused, the same is receiving the support from the evidence of P.W/6 as well as the evidence of I.O. (P.W.9) that Sarathi (P.W.6) had produced the knife which was seized in course of investigation. Therefore, the evidence of this witness that when he came out again, Goi had already fallen on the ground cannot be taken in that way to say that he had not seen the accused stabbing the deceased. When it is not the case of the defence that accused had received any injury in course of incident, the stray statement of P.W.5 that he has seen Page 13 of 14 CRLA NO.267 OF 2016 {{ 14 }} the accused with head injury, when he was at the police station is of absolutely no significance and the submission of the learned Counsel for the accused that the case of the prosecution for the said non-explanation is to be doubted is not acceptable. When P.W.6 too says that having arrived at the scene, he saw Goi to have fallen on the ground and accused fleeing away, he has however clearly stated to have witnessed the occurrence from his house. 13. For the discussion of evidence as above, we are of the considered view that the prosecution has established the charge against the accused beyond reasonable doubt by leading, clear, cogent and acceptable evidence. The Trial Court thus is found to have committed no error in holding the accused guilty for the offence under section-302 of the IPC and sentencing him thereunder. 14. In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence impugned in this Appeal are hereby confirmed. Dr.S.K. Panigrahi, J. I Agree. (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Narayan Designation: Personal Assistant Reason: Authentication Location: OHC Date: 22-May-2023 18:37:16 CRLA NO.267 OF 2016 (Dr.S.K.Panigrahi), Judge. Page 14 of 14