Anwar Khan vs State Of Odisha
2021 Latest Caselaw 6784 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK
                       CRLA No.542 of 2014


   (An appeal under Section 374(2) of the Code of Criminal
   Procedure, 1973)


    Anwar Khan                                  ....             Appellant

                                   -versus-
    State of Odisha                             ....           Respondent


   Appeared in this case by Video Conferencing mode:

    For Appellant              :          Smt. Bharati Dash, Advocate

    For Respondent             :                    Smt. Saswata Pattnaik
                                              Addl. Government Advocate

    CORAM:
    THE CHIEF JUSTICE
    JUSTICE S.K. PANIGARHI
                              JUDGMENT

2nd July, 2021 Dr. S. Muralidhar, CJ

1. This appeal is directed against the judgment dated 28 th August, 2014 passed by the Additional Sessions Judge, Baripada, Mayurbhanj in S.T. No.20/133 of 2012 convicting the Appellant for the offence under Section 302 of the Indian Penal Code (IPC) and sentencing him to imprisonment for life as well as to pay fine of Rs.1000/- and in default of payment of fine to undergo R.I. for three further months.

2. The case of the prosecution is that a complaint was lodged at Baripada Town Police Station by one Sabjad Khan on 19th April, 2012 at about 7.30 am stating that he had received information from one Sk. Ajim that his younger brother Manwar (deceased) had been assaulted by his middle younger brother (Anwar Khan, the present Appellant) by means of a 'Bhujali' in the night of 18th April, 2012 at about 11.30 pm near T.B. Hospital Chhak. As a result, Manwar had been admitted to the hospital and had subsequently expired.

3. Thereafter, the complainant (Sabjad Khan) informed the father of the deceased and had gone to the hospital. There he found the dead body of Manwar lying in the verandah. It was further alleged that previously the accused had assaulted the informant by means of a 'Khura' for which an FIR had been lodged.

4. The Investigating Officer (I.O.) registered the above complaint as Baripada Town P.S. Case No.129 of 2012 under Sections 302/506 IPC. Based on the investigation, a charge was framed against the present Appellant under Section 302 IPC.

5. There were three eyewitnesses in this case i.e. PWs 1, 3 and 8. PW-1 (Sm. Anisuddin) stated that the deceased is the younger brother of the accused Appellant. At the time of the occurrence, PW-1was present in his house. His shop was attached to his residential house. PW-1 heard the cry of "marigali, maridela". Thereupon, he and his Bhanja Sk. Sirajun came out of their house

and saw the deceased lying in the verandah of his house with bleeding injuries. The deceased requested them to take him to the hospital in order to save his life. The Appellant who was present there, on seeing them, ran away from the spot holding a Bhujali. PW-1 chased the Appellant up to a little distance and then returned to the spot of the crime. The deceased disclosed to PW-1 and his Bhanja(nephew) that the Appellant had assaulted him severely and that he would not survive. Sk. Shera and Sk. Raj took the deceased to the hospital and subsequently, they came to know about the death of the deceased in the hospital.

6. The next eyewitness i.e. PW-3 (Sk.Shera) had stated that on hearing the cries "Bachao, anchao" he came out of his house. He also mentioned that his brother PW-1 and Sk. Raj came to the spot with him. On seeing them, the accused Appellant ran away from the spot holding a Bhujali in his hand. He also stated that the deceased had disclosed before them that the Appellant had assaulted him mercilessly. The deceased requested them to take him to the hospital to save his life. Then they informed the matter to the police and the police asked them to take the deceased to the hospital immediately. Thereafter, PW-3 and Sk. Raj took the deceased to the hospital in a motorcycle and the deceased died one hour after his admission to the hospital.

7. The third eyewitness PW-8 (Sk. Sirajun) has stated that he was watching T.V. in the house of Sk. Anisuddin on the date of occurrence. He heard the cry "Morigoli, Morigoli, Bachao,

Bachao". Accompanied by PWs 1 and 3 and went to the spot. Seeing them, the Appellant ran away from the spot holding a Bhujali in his hand. PW-8 and PW-1 chased the Appellant up to a short distance and thereafter returned to the scene of crime. The deceased disclosed before them that the Appellant had assaulted him.

8. The trial Court, after a careful analysis of the evidence of PWs 1, 3 and 8, found their testimonies to be corroborating each other on material particulars.

9. The trial Court has further found that PW-10 (Dr. Netrananda Mohanty) has also corroborated the evidence of PWs 1, 3 and 8. He conducted the post-mortem of the body of the deceased and found 10 incised wounds of different sizes situated over the dorsal aspect of left forearm, middle of left arm, left scapula, 6 inch below the left scapula, medial border of angle of right scapula, another injury 5 inch below the said angle of right scapula, 7th thoracic vertebra, 10th thoracic vertebra, another injury 2 inch below the 10th thoracic vertebra and another injury adjacent to the said 10th thoracic vertebra. PW-10 also found one penetrating wound of size 2.5 cm. x 1.5 cm x right pleural cavity-posterior to right axila. PW-10 also confirmed that all the injuries were ante mortem in nature and might have been caused by a sharp cutting weapon. He confirmed that the upper lobe of right lung was lacerated, the right pleural cavity was full of blood. The other internal organs including liver, spleen kidney were intact but

looked pale. Injury No.vii was a penetrating wound of size 2.5 cm x 1.5 cm x right pleural cavity-posterior to right axial. This was sufficient in the ordinary course of nature to cause the death of a person. The cause of death was opined to be hemorrhage and shock due to the injury to vital organs like lungs. The time since death was estimated as within 24 hours from the time of the post- mortem examination.

10. The trial Court proceeded to accept the evidence of the three eyewitnesses to be reliable and free of internal contradictions. Accordingly, the trial Court proceeded to convict the Appellant and sentenced him as mentioned hereinbefore.

11. The principal contention of Ms. Bharati Dash, learned counsel for the Appellant, is that there are inconsistencies in the testimonies of the so-called eyewitnesses i.e. PWs 1, 3 and 8 which render their evidence unreliable. She contends that they are in fact post-occurrence witnesses and not eyewitnesses per se.

12. The testimonies of PWs 1, 3 and 8 have been carefully examined by this Court. It appears that on the material aspects viz., the deceased crying out in pain that he had been attacked, the accused being found at the scene of crime when they reached there, his running away from the spot with a 'Bhujali' on seeing the eyewitnesses there is a complete corroboration of one eye- witness by the other. While none of them might have seen the actual assault of the deceased by the Appellant with the sharp

edged weapon (Bhujali), the fact remains that each of them saw the accused at the spot with the weapon. Each of the witnesses i.e. PWs 1,3 and 8 speak of the deceased disclosing that he had been attacked by the deceased. The accused running away from the crime scene with the Bhujali has been witnessed by each of them as it happened. Therefore, it is not possible to accept the plea of learned counsel for the Appellant, that PWs 1, 3 and 8 cannot be termed as eye witnesses but only as post-occurrence witnesses. The precise manner of describing them is that they are witnesses to the events soon after the assault of the deceased and direct eye witnesses to the Appellant running away from the scene of crime with the murder weapon.

13. The minor inconsistencies in the testimonies of PWs 1, 3 and 8, if any, are natural and do not in any manner impinge on their credibility. The legal position in this regard may be recapitulated at this juncture.

14. To begin with the Supreme Court has in State of U.P. v. Krishna Master (2010) 12 SCC 324 explained in the following paras, what the approach of a Court evaluating oral testimony has to be:

"15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the

court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case."

15. In Rai Sandeep @ Deepu v. Govt. of NCT of Delhi (2012) 8 SCC 21, the Supreme Court explained who could be said to be a „sterling‟ witness as under:

"In our considered opinion, the „sterling witness‟ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co- relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a „sterling witness‟ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should

match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

16. When the depositions of PWs 1, 3 and 8 are subject to the above tests, this Court finds that they are consistent in the broad aspects of the identity of the Appellant, his immediate conduct after the assault and most importantly, the disclosure of the deceased about the Appellant having assaulted him with the sharp edged weapon. As already discussed, barring some minor inconsistencies, the evidence of PS 1, 3 and 8 are consistent on the material aspects of the crime. They have withstood the cross- examination by the defence at the trial. As soon as they heard the shout of the deceased, they reached at the spot from where each of them saw the Appellant, who was identified by the deceased to them as the assailant, run away with the assault weapon. The Court is unable to find anything inconsistent in their testimonies so as to render them unreliable or lacking in credibility.

17. The next submission on behalf of the Appellant is that the prosecution failed to prove the motive for the crime. The settled legal position in this regard is that while in a case based on circumstantial evidence, motive for the crime may form an important link in the chain of circumstances, in a case based on direct evidence, the case of the prosecution need not fail only because motive for the commission of the crime was not proved. The requirement is of course that the direct evidence should not

be of a doubtful nature. In Yogesh Singh v. Mahabeer Singh (2007) 11 SCC 195, the Supreme Court explained the legal position thus:

"It is a settled legal proposition that even if the absence of motive, as alleged, is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of the witnesses as to commission of an offence, motive loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. (Hari Shanker v. State of U.P. (1996) 9 SCC 40, Bikau Pandey v. State of Bihar (2003) 12 SCC 616, State of U.P. v. Kishanpal, (2008) 16 SCC 73, Abu Thakir v. State of T.N., (2010) 5 SCC 91 and Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91)."

18. The evidence of the aforementioned three witnesses PWs 1,3, and 8 is fully corroborated by the medical evidence of PW-10. The nature of the fatal bodily injuries as explained by PW-10 is consistent with the testimonies of the three witnesses. The conclusion reached by the trial Court that the evidence when viewed as a whole unmistakably points to the guilt of the present Appellant, and none else, therefore merits acceptance. No grounds have been made out for interference with the impugned judgment of the trial Court.

19. It must be noted at this stage that on 16 th March, 2021 this Court had enlarged the Appellant on interim bail for a period of four months, after noting that he had completed nine years in jail

custody. As a result of the dismissal of the present appeal, the Appellant who has been enlarged on interim bail pursuant to the above order, is directed to surrender before the trial Court forthwith notwithstanding that the interim bail is for a period of four months from the date of his release pursuant to the above order dated 16th March, 2021. If the Appellant fails to surrender on or before 16th July, 2021 before the trial Court then the police shall take steps to have the Appellant apprehended forthwith to serve out his sentence.

20. The appeal is dismissed in the above terms.

21. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court‟s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court‟s Notice No.4587, dated 25th March, 2020 as modified by Court‟s Notice No.4798, dated 15th April, 2021.

(S. Muralidhar) Chief Justice

(S.K. Panigrahi) Judge

S.K.Jena/PA