Sri A.J. Devsharma vs State Of Odisha 3
2021 Latest Caselaw 132 Ori

                                        ORISSA HIGH COURT, CUTTACK
                                          Jail Criminal Appeal No. 90 of 2006

          From the judgment of conviction and order of sentence passed on 26.07.2006 by
          Sri A.J. Devsharma, learned Adhoc, Addl. Sessions Judge (FTC), Malkangiri
          convicting the appellant-Nanga Madi under Section 302 of the IPC and sentencing
          him to undergo R.I. for life in Criminal Trial No.2 of 2006

                                                              ----------

          Nanga Madi                                             3                        Appellant



                                                              Versus


          State of Odisha                                        3                       Respondent


                   For appellant                                     -            Mr. Ashis Kumar Mahana
                                                                                     (Amicus Curiae)

                 For opposite party                                -                Sk. Zafarulla
                                                                              (Addl. Standing Counsel)


                                                              ---------

          PRESENT:

                                      THE HONOURABLE MR. JUSTICE S.K.MISHRA

                                                                       AND

                                  THE HONOURABLE MISS JUSTICE SAVITRI RATHO

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Date of Judgment - 06.01.2021

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S.K.Mishra, J. In this appeal, the sole appellant assails the judgment passed by the

learned Adhoc. Addl. Sessions Judge (FTC), Malkangiri convicting him for the offence

under Section 302 of the Indian Penal Code, 1860, hereinafter referred to as the

'Penal Code', and sentencing him to undergo imprisonment for life and to pay a fine

of Rs.5,000/-, in default to undergo rigorous imprisonment for six months in Criminal

Trial No.2 of 2006, as per the judgment dated 26.07.2006.

2. On 15.06.2005, the accused had quarreled with the deceased at about 8

'O' clock. Then, the accused shot the deceased by means of an arrow, which pierced

the upper belly of the deceased. When he fell down, the appellant gave blows by

means of a tangia, which he was holding. As a result of the assault, the deceased died

at the spot. This incident was witnessed by one Buari Manguli. This matter was

informed to P.W.6, Aita Madkami, who then went to the spot and found the dead body

of the deceased lying with an arrow pierced to his body and a bow and an axe lying

there. On the next day, a report was lodged before the OIC, Malkangiri Police Station.

The Investigating Officer registered the police case and took up investigation. In

course of investigation, he examined the informant P.W.4, other witnesses, made

several seizures, dispatched the dead body for post-mortem examination, collected

material objects, sent them for chemical examination and after completion of

investigation, finding a prima facie case submitted charge-sheet against the appellant

under Section 302 of the Penal Code.

03. The plea of defence was of complete denial.

04. To establish its case, the prosecution examined seven witnesses on its

behalf, led into evidence 18 documents as exhibits and three material objects.

P.W.5, Mangala Madkami is the solitary eye-witness to the occurrence.

P.W.4, Ura Madkami, father of the deceased had lodged the FIR before the OIC,

Malkangiri Police Station. P.W.6, Aita Madkami is a village elder, who after coming to

know about the murder accompanied P.W.4 to the police station to lodge the FIR.

P.W.2- Bijaya Kumar Biswas and P.W.3, Narasingh Dora are two police constables

and are witnesses to the seizures. P.W.1, Dr. Laxmikanta Panigrahi had conducted

post-mortem examination of the dead body of the deceased. P.W.7, Prakash Kumar

Rath is the Investigating Officer of the case.

The defence, on the other hand, did not examine any witness on its

behalf and it also did not lead any documentary evidence in support of its case.

05. The learned Adhoc Addl. Sessions Judge came to the conclusion from

the materials available on record like the deposition of P.W.1, Dr. Laxmikanta

Panigrahi and the contents of the post-mortem examination i.e. Exhibit-1, the opinion

rendered by the doctor on Exhibit-2, that the death of the deceased was homicidal in

nature. He also came to the conclusion that the injuries found on the deceased can be

caused by a sharp cutting weapon and the head injury is possible by sharp cutting

weapon i.e. arrow and tangia, respectively.

06. At this stage, there is no dispute regarding the identity of the dead body

subjected to post-mortem examination and the results of the examination of the

material objects i.e. weapons of offence M.Os. I to III to be the possible weapon with

which the injuries were inflicted. A careful examination of the documents and the

evidence of P.W.1 also leave no doubt in mind of this Court that such findings of the

learned trial Judge do not require any interference.

07. Basing on the evidence of the sole eye-witness P.W.5 and attending

circumstances like finding blood from the wearing apparels of the deceased having the

same blood group as the blood stained found on the bow and arrow, the learned trial

Judge came to the conclusion that the prosecution has proved the case beyond all

reasonable doubts.

08. Mr. Mahana, learned counsel for the appellant assailing the conviction

submitted that the sole eye-witness P.W.5 is a stock witness of the police and,

therefore, he cannot be believed. He also argued that the bow and arrow were found

at the spot, near the dead body of the deceased. So, the arrow and bow belong to the

deceased. Hence, the prosecution case has to be disbelieved. Therefore, he urged

the Court to allow the appeal and set aside the conviction.

Sk. Zafarulla, learned Addl. Standing Counsel, on the other hand,

submitted that the evidence of solitary eye-witness, if accepted to be true, can be the

basis of the conviction of the accused. He relied upon Section 134 of the Indian

Evidence Act, 1872 and contended that no particular number of witnesses is required

to be examined to prove a fact. He also submitted that the evidence of P.W.5 is

supported by the evidence of the doctor, which includes the findings of the post-

mortem examination and examination of the weapons of offence; the result of

chemical examination of finding blood of human origin of group AB on the bow and

arrow seized in this case, and the half pant and half chadi of the deceased; and the

objective determination of the spot by the Investigating Officer. Hence, he prayed to

dismiss the appeal.

09. The evidence of P.W.5 assumes maximum importance in this case. He

has stated that the incident took place about a year prior to his evidence in the court at

about 8 P.M. In her presence and the presence of Laxmi Madkami, in front of the

house of the accused, the accused shot an arrow from his bow. The arrow pierced the

belly of the deceased and he fell on the ground with bleeding injury after which the

accused gave a tangia blow on his head. Due to such multiple injuries, the deceased

died at the spot. He identified M.O.I to be the arrow and M.O.II to be the tangia used

by the accused in commission of the crime. He denied the suggestion that the bow,

arrow and axe do not belong to the accused. Mr. Mahana, learned counsel for the

appellant also argued that P.W.5 has stated that the arrow pierced his belly, whereas

P.W.1 found one perforating injury of the size 2"x1/2"x8" over the left hypochondrium.

Therefore, it was argued by the learned counsel for the appellant that there was no

injury on the belly of the deceased. Hypochondrium means the region of the abdomen

immediately below the cartilages that join the lower ribs on the either side of the

breastbone. So, it is the part of the belly. Hence, we do not see any contradiction in

the evidence of P.W.5 when he stated that the arrow pierced the belly of the

deceased, with the evidence of the expert, P.W.1.

10. The learned counsel for the appellant also submitted that the sole eye-

witness in this case is a stock witness of the police. Hence, he should be disbelieved.

There is no cross-examination of this witness about any earlier cases in which he has

appeared as a witness for the police. Nothing has been brought out in the cross-

examination of P.W.5 or P.W.7 about his appearance as witness as against accused

persons in police cases on behalf of the prosecution. Not even a suggestion is given

to him that he is a stock witness of the police. So, in such a situation, there is hardly

any scope on the part of the learned Amicus Curiae to submit that the witness is a

stock witness. This witness is a reliable witness and there is no blemish or embroidery

to his deposition before the court. Not a single contradiction has been pointed out in

his cross-examination. Another witness has allegedly seen the occurrence i.e. Laxmi

Madkami. She has not been examined in this case. Laxmi Madkami is an elderly lady,

who happens to be the mother of the deceased. She is a tribal lady. The prosecution

has not examined her. Keeping in view the peculiar facts of the case, we are of the

opinion that in this case no adverse inference can be drawn against the prosecution

for non-examination of Laxmi Madkami, mother of the deceased. So, we are of the

opinion that the sole eye witness examined on behalf of the prosecution is a reliable

witness.

11. Moreover, the evidence of P.W.1-Dr. Laxmikanta Panigrahi, together

with the contents of the post-mortem examination report, i.e. Exhibit-1 and contents of

the opinion rendered by the doctor on examination of the weapon of offence i.e.

Exhibit-2, regarding the M.O.I to III corroborates the evidence of P.W.5.

12. After seizure of the weapon of offence, the I.O. forwarded the same to

the Regional Forensic Science Laboratory, Berhampur for chemical examination. He

also sent the wearing apparels of the deceased i.e. one half pant and half chadi. All

these articles were found to be stained with blood of human origin of AB group. This

finding of blood of the same group found in the wearing apparels of the deceased as

well as the weapon of offence lends further credence to the evidence of P.W.5, the

sole eye-witness.

13. In this case also, the spot has been objectively determined by the

investigating agency. The dead body was found lying in front of the house of the

accused. Blood stained earth and sample earth were seized from the spot, which were

examined chemically. The physical and ballistic examiner of the RFSL, Berhampur, on

examination of the earth found that the sample earth and the blood stained earth were

similar with respect to the physical characteristics. Thus, it is clear that the spot of

occurrence has also been objectively determined by the Investigating Officer.

14. Another circumstance i.e. taken note by the learned Adhoc. Addl.

Sessions Judge is that the Assistant Director, Physics and Ballistics Division opined

that arrow examined by the laboratory can be shot from the bow seized in the case

and the arrow shot from the bow can cause grievous injury or even death of a person

if it hits vital organ of the body. Such findings also are not challenged either before the

trial court or before this Court. Such findings lend further credence to the evidence of

P.W.5.

15. Thus, on conspectus of material on record, on the basis of the testimony

of the P.W.5, which fits into the anvil of the objective circumstances of the case,

presented by the medical evidence, the finding of blood of the same group on the

wearing apparels of the deceased and the weapon of offence, objective determination

of the spot and the opinion of the ballistic expert, we are of the opinion that the learned

Adhoc Addl. Sessions Judge has on a perspicacious view of the materials on record

come to a just conclusion. Therefore, we are of the opinion that there is no need to

interfere with the findings of the learned trial Judge in convicting the appellant under

Section 302 of the Penal Code.

Hence, the Jail Criminal Appeal is dismissed.

The lower court records be sent back to the learned trial court along with

a copy of this judgment forthwith.

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S.K. Mishra,J.

Savitri Ratho, J. I agree.

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Savitri Ratho, J.

Orissa High Court, Cuttack th Dated, 6 January, 2021/PCD