From The Judgment Of Conviction ... vs State Of Odisha
2021 Latest Caselaw 6325 Ori

                                        ORISSA HIGH COURT, CUTTACK
                                           Jail Criminal Appeal No.50 of 2014
           From the Judgment of conviction and order of sentence passed on 17.05.2011 by
           Sri A.C. Behera, Adhoc Addl. Sessions Judge, Sundargarh convicting the
           appellant-Parameswar Bhaisa under Section 302 of the IPC and sentencing him to
           undergo R.I. for life in Sessions Trial No.70/19 of 2011.

                                                               ----------



           Parameswar Bhaisa                                      ...                        Appellant



                                                               Versus


           State of Odisha                                       ...                      Respondent


                   For appellant                                     -              Mr.Sidhartha Samal
                                                                                     (Amicus Curiae)


                  For opposite party                                 -             Mr.G.N. Rout
                                                                               (Addl. Standing Counsel)


                                                               ---------

           PRESENT:

                                                          SHRI S.K.MISHRA,J.

AND

MISS SAVITRI RATHO,J.

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Date of Hearing: 09.02.2021 & 11.06.2021, Date of Judgment - 11.06.2021

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S.K. Mishra,J. This is a case of patricide. The appellant-Parameswar Bhaisa has been convicted

by the learned Adhoc Addl. Sessions Judge, Sundargarh under Section 302 of the

Indian Penal Code,1860, hereinafter referred to as 'Penal Code' for brevity, having

committed murder of his father on 14.09.2010 at about 11 A.M. inside his own house.

The appellant also assails the sentence of imprisonment for life and fine of Rs.5,000/-

in this appeal. The impugned judgment has been passed on 17.05.2011 in S.T.

No.70/19 of 2011.

2. The case of the prosecution in brief is that on 14.09.2010 at 11 A.M. the

appellant came to his house situated at village Jhargaon in a drunken state.

Apprehending danger to the lives of the family, his wife Puspa Bhaisa closed the

entrance door from inside, in order to prevent the accused from entering into the

house. At that time, Lochan Bhaisa, her father in-law, who happens to be the father of

the appellant, was sleeping in the inner court yard on a cot. Her son was also sleeping

there. The appellant scaled over the wall of his house, entered inside the house and

then assaulted his father by means of a tangia giving three successive blows on his

neck. The deceased while sleeping on a cot sustained severe bleeding injuries on his

neck and expired. Thereafter, the accused fled the spot. He went towards the jungle.

Hearing about the incident, the Sub-Inspector of Police, R.C. Sahu of Sargipali

outpost, arrived at the spot i.e. the house of the accused. On his arrival, wife of the

accused presented a written report, which was registered as an FIR. The investigation

of the case was taken up. The S.I. of police took necessary steps like examining the

complainant and other witnesses, dispatching dead body for post-mortem

examination, seizure of the weapon etc., and after completion of investigation

submitted charge-sheet against the appellant under Section 302 of the Penal Code.

3. The defence took the plea of simple denial.

4. In order to prove its case, the prosecution examined eight witnesses.

P.W.6, Puspa Bhainsa is the informant of the case and one of the eye-witnesses, who

happens to be the wife of the appellant. P.W.7-Mukesh Bhainsa is her son, aged

about 16 years at the time of examination as a witness in the court. He is also an eye

witness. P.W.5, Dr. Subodh Kumar Rath has conducted post-mortem examination on

the dead body of the deceased and P.W.8-Ramesh Chandra Sahu, S.I. of Police is

the Investigating Officer of this case. Rest of the witnesses are formal witnesses,

being witnesses to seizures etc. The defence did not examine any witness on its

behalf. The prosecution relied upon 14 documents as exhibits. No material objects

have been proved in this case. The learned trial Judge, after taking into consideration

the evidences of P.Ws. 6 and 7 as corroborated by P.W.5, came to the conclusion that

the prosecution has proved its case beyond reasonable doubts.

5. While arguing the case, the learned Amicus Curiae Mr. Sidhartha Samal

did not dispute the findings recorded by the learned trial Judge that death of the

deceased was due to injuries by sharp cutting weapon and the death of the deceased

is homicidal. He disputes the complicity of the appellant in the commission of the

crime.

6. Mr. G.N. Rout, learned Addl. Standing counsel submits that the

evidences of P.Ws.5, 6 and 7 together with the contents of the post-mortem

examination report, Ext. 6 and the opinion rendered by the doctor after examining the

axe, Ext. 7/1 establish the case beyond reasonable doubt that the death of the

deceased was homicidal in nature and it was caused by an axe.

7. Since the learned Amicus Curiae has not disputed the homicidal nature

of the death of the deceased, the only aspect that needs to be dealt with by this Court

is whether the prosecution has established its case beyond reasonable doubt that the

appellant committed murder of his father. In this connection, the learned counsel for

the appellant submits that the evidences of P.Ws. 6 and 7 cannot be relied upon as

they have not tried to help the deceased by intervening in the matter. He relied upon

the reported case of Amar Singh vs. State (NCT of Delhi), 2020 SCC Online SC

826, wherein it was argued before the Hon'ble Supreme Court the unnatural conduct

of a prosecution witnesses, who are brothers of the deceased renders them

unreliable. However, the witnesses in the reported case have not been disbelieved

because of their unnatural conduct. They have been disbelieved because of the

contradictions of their evidences with respect to their statement before the police

during course of investigation.

Another reported case of this Court i.e. Dusmanta Sethy Vs. State of

Orissa, 2020 SCC Online Orissa 30 is relied upon. In that reported case the Division

Bench of this Court took note of the reported case of Vadivelu Thevar Vs. The State

of Madreas, AIR (1957) SC 614 and disbelieved the solitary eye-witnesses. The

cases discussed above are not applicable to the present case.

8. The evidence of P.W.6 reveals that at the time of occurrence the

accused came to her house in a drunken state. Apprehending danger to her life along

with son, she closed the door but the accused scaled over the wall and entered inside

the house and then assaulted her father in-law, who was sleeping on a cot, by a

tangia giving three successive blows on his neck. Nothing substantial has been

brought out from the mouth of the deceased in the cross-examination.

The evidence of P.W.6 is corroborated by P.W.7-Mukesh Bhainsa, who

happens to be her son. He has also stated that his father scaled over the wall of the

house and assaulted his grand-father, while he was sleeping on a cot by a tangia on

his neck giving successive blows. As a result of such assault, his grand-father

sustained bleeding injury on his neck and died. Though the witness is a young witness

aged about 16 years at the time of examination, he had withstood the cross-

examination. No contradiction has been brought out from him in the cross-

examination. The evidences of P.Ws. 6 and 7 get corroboration of P.W.5. P.W.5 has

conducted post-mortem examination on the dead body of the deceased and found the

following external injuries:

(i) Incised wound of size 4" x 2" x 2" on the right side of lower side neck, transversely placed extending to the midline from the lateral side traversing skin, muscle of the neck, carrotid vessel, trachea with partial open with fracture of 6 cervical vertebra with clot attached to the margin.

(ii) Incise wound 2" x ½" x 1" obliquely placed just below the right ear and behind the angle of mandible traversing skin, muscle of neck and soft issues.

(iii) Incised would 1 ½ '' x ½" x ½" on the middle part of the right side neck, traversing skin, soft tissues, muscle, clot attached to the margin.

All the internal organs look pale. Stomach contained partial digested food particle. There is an old healed trocanteric fracture on the right side.

His further opinion is that the death was caused due to hemorrhagic

shock of the above injuries. On 27.09.2010, he also examined one axe and opined

that the injuries found on the dead body of the deceased can be caused by such a

weapon. It is seen that there are three incised injuries on the right side neck of the

deceased that has caused the death. Medical evidence squarely corroborates the

evidence of P.Ws. 6 and 7, the two eye-witnesses.

The evidences of these eye-witnesses have been criticized on the

ground that they are relations of the deceased. However, we fail to understand why

should the wife and son of the appellant implicate him in a crime he has not

committed. Since the occurrence has taken place inside their house while the

deceasing was sleeping, P.Ws. 6 and 7 being the inmates, are natural witnesses to

the occurrence. So, we do not agree with the contention of the learned counsel for the

appellant to the effect that P.Ws. 6 and 7 cannot be held to be reliable to uphold the

conviction recorded by the learned trial Judge.

9. The learned counsel for the appellant also argued that since the

appellant was in drunken state, he cannot be held to be guilty of the offence of

murder. Even though he was in a drunken state, the conduct of the appellant shows

that he has the intention to commit the offence. The appellant came to the house,

scaled over the wall of the house and committed the murder. We do not accept the

contention of Mr. Sidhartha Samal, learned counsel for the appellant that the appellant

had no intention of committing murder of the deceased and it is a mistake of fact.

10. In that view of the matter, the JCRLA is dismissed being devoid of merit.

The judgment of conviction and order of sentence passed by the learned trial judge in

Sessions Trial No.70/19 of 2011 under Section 302 of the Penal Code are hereby

confirmed.

Send back the Trial Court Records along with a copy of the judgment

forthwith.

As the restrictions due to resurgence of COVID-19 are continuing, the

learned counsel for the parties may utilize a printout of this judgment available in the

High Court's website, at par with certified copy, subject to attestation by Mr. Sidhartha

Samal, Advocate, in the manner prescribed, vide Court's Notice No.4587, dated 25th

March, 2020 as modified by Court's Notice No.4798 dated 15.04.2021.

........................

S.K.Mishra, J.

Savitri Ratho, J. I agree

..........................

Savitri Ratho,J.

Orissa High Court, Cuttack th Dated, the 11 June, 2021/PCD