Orissa High Court
Jaydev Behera vs State Of Odisha on 5 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR JCRA No.11 of 2001
Jaydev Behera .... Appellant
Mr. P. Mohanty, Advocate
-Versus-
State of Odisha .... Respondent
Mr. Ishwar Mohanty, ASC
JCRA No.12 of 2001
Govinda Behera .... Appellant
Mr. P. Mohanty, Advocate
-Versus-
State of Odisha .... Respondent
Mr. Ishwar Mohanty, ASC
CRA No.14 of 2001
Jayadev Behera and another .... Appellants
Mr. P. Mohanty, Advocate
-Versus-
State of Odisha .... Respondent
Mr. Ishwar Mohanty, ASC
CORAM:
THE CHIEF JUSTICE
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:05.08.2022
R.K. Pattanaik, J
1. The Appellants have challenged the impugned judgment dated
30th October, 2000 passed in S.C. No.29 of 1998 by the learned
JCRA Nos.11 & 12 of 2001
// 2 //
2nd Additional Sessions Judge, Berhampur for being convicted
under Section 302 IPC and other offences on the grounds inter
alia that the findings to be unjustified and hence, liable to be set
aside followed by an order of acquittal.
2. The Appellants having been charged under Sections 147, 148,
302 and 149 IPC and Section 9(b) of the Indian Explosive Act
were made to face trial. Finally, the learned court below returned
with a finding of guilt against the Appellants and convicted them
under Section 302 IPC with other offences however acquitting
them of the offence punishable under Section 9(b) of the Indian
Explosive Act and consequently sentenced each to imprisonment
for life for the offence under Section 302 read with 149 IPC
without any separate sentences for the rest of the offences.
3. The informant lodged the FIR on 9th October, 1997 alleging
therein that on that day at about 10.20 a.m. while his deceased
brother was at his medicine shop, at that time, the Appellants and
others being armed with sword, kati and bombs attacked and
killed him at the spot. After the FIR was lodged, K.S. Nagar P.S.
Case No.104(6) dated 9th October, 1997 was registered. Finally,
charge sheet was submitted against the Appellants and five others
under the alleged offences to stand their trial in the court of law.
The learned court below framed charges against the Appellants
and thereafter, received evidence during trial and ultimately,
convicted them of the alleged offences.
4. The plea of the Appellants is of denial and false implication.
JCRA Nos.11 & 12 of 2001
// 3 //
5. Heard the learned counsel for the Appellants and Mr. Ishwar
Mohanty, learned ASC for the State.
6. The prosecution story is that on 9th October, 1997 at about
10.20 a.m., the deceased was inside his medical shop and at that
time, one Ambassador car arrived and stopped in front of it and
seven persons including the Appellants got down from the
vehicle being armed with sword and bombs and went inside the
shop and assaulted the victim, who out of fear ran from there but
was chased by them and was finally killed at the spot. The
brother of the deceased lodged the FIR few hours after the
alleged incident. The informant named the Appellants and nine
others in the FIR by claiming that all of them combinedly killed
the deceased.
7. In order to prove its case, the prosecution besides examining
witnesses relied upon sixteen documents and some material
objects. However, the defence did not lead any evidence.
Considering the evidence of the prosecution, the learned court
below reached at a conclusion regarding the guilt of the
Appellants.
8. The learned counsel for the Appellants contended that there
are discrepancies in the evidence of prosecution which the
learned court below overlooked. It is further contended that the
informant being the brother of the deceased falsely implicated the
Appellants, the fact which was lost sight of by the court below
and that apart, some independent witnesses were not examined
and no clear motive could be revealed but still the learned court
JCRA Nos.11 & 12 of 2001
// 4 //
below convicted them which is not legally tenable. On the other
hand, the learned ASC contended that the evidence of the
prosecution clearly proved and established the involvement of
the Appellants in the killing of the deceased and even if the
informant is related to the victim, his evidence could not have
been entirely brushed aside, as he was most unlikely to falsely
implicate someone other than the real culprits. It is further
contended that the evidence has been cogent and credible which
connected the Appellants with the alleged incident and therefore,
the order of conviction suffers from no illegality and therefore,
calls for no interference.
9. The learned defence counsel by contending that independent
witnesses have not been examined though were available cited a
decision of the Supreme Court in the case of Hem Raj and
others v. State of Haryana (2005) 10 SCC 614 besides Jagdish
and another v. State of Haryana (2019) 76 OCR (SC) 411
which is with regard to appreciation of evidence keeping in view
the enmity between the parties. Further, another decision in the
case of Baliraj Singh v. State of M.P. (2017) 14 SCC 291 is
relied upon which deals with contradictions and improvement in
evidence. Whereas the learned ASC referred to a decision of the
Apex Court in the case of Vijendra Singh v. State of U.P. (2017)
11 SCC 129 while advancing an argument that there is a
distinction between interested and related witness and the settled
law is that interested evidence can form the basis of conviction
even without corroboration from independent material.
JCRA Nos.11 & 12 of 2001
// 5 //
10. The informant has been examined as P.W.1 being the elder
brother of the deceased. According to him, on the date of
incident, while he was at the shop of one Dinabandhu Sethi, the
deceased was attacked and witnessed that the Appellants and
others armed with sword went inside the medicine shop and
assaulted his brother, who then started to run but was chased and
after he fell down near a brick heap, the assailants gave him
blows by means of sword and when tried to rescue the deceased,
he was terrorized and on account of the alleged assault, the
victim died at the spot. The learned counsel for the Appellants
contends that P.W.1 was not at the spot and did not even witness
the assault and for the first time during trial narrated the incident
implicating the accused persons which was never stated in the
FIR i.e. Ext.1. On a perusal of the FIR, it appears that P.W.1
barely after an hour or so lodged the report and informed the
killing of his brother by the Appellants and other accused persons
to the local police. But an FIR is not an encyclopedia which is
not expected to contain every minute details of an incident.
P.W.1 though did not elaborate in Ext.1, the manner in which the
assault was carried out but deposed as a witness about his
presence at the spot. The dispute between the deceased and the
accused persons and existence of prior enmity between them
since three years before the incident was also deposed by P.W.1
and according to him, it was the reason behind the alleged
murder. P.W.1 has been cross-examined by the defence at length.
Likewise, P.W.2 deposed that at the time of alleged incident, he
was at a cycle mart of one Santosh Maharana and noticed the
JCRA Nos.11 & 12 of 2001
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arrival of an Ambassador car and the Appellants to have got
down along with others and narrated the incident by claiming
that the victim was assaulted and killed at the spot. The presence
of P.W.1 near the spot was also claimed by P.W.2. According to
P.W.2, prior to the occurrence, both sides had a dispute for taking
lease of a tank. P.W.2 was also cross-examined elaborately about
the incident and admitted existence of gang rivalry between both
the sides. Similar is the evidence of P.W.3, who said to have
witnessed the alleged incident and he too was cross-examined in
detail. P.W.4 is the doctor who conducted the postmortem
examination of the deceased. From the postmortem report
marked as Ext.3, it appears that the deceased received nearly 20
external injuries majority of which were found to be incised
wounds. In the opinion of P.W.4, all the injuries were ante
mortem in nature. The victim did suffer a homicidal death. The
evidence of P.Ws.1, 2 &3 corroborate the medical evidence. The
manner in which the incident happened was narrated not only by
P.W.1 but also by other two ocular witnesses which received
ample corroboration from the medical evidence as introduced
through P.W.4. The I.O., namely, P.W.12 revealed the details of
the investigation. All the material objects were collected either by
or at the instance of P.W.12 including seizure of weapon of
offence.
11. The learned defence counsel contends that P.W s 2 and 3 are
habitual offenders and the deceased had enmity with many
persons and even though FIR was lodged disclosing names of 11
persons but only 7 of them were charge sheeted. It is further
JCRA Nos.11 & 12 of 2001
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contended that P.W.1 is a brother of the deceased and is an
interested witness and therefore, falsely added the names of the
Appellants. In the considered view of the Court, evidence of a
witness is not to be straightaway discarded or viewed with great
amount of suspicion for the reason that he is a relative of the
victim. It is alleged that P.W.1 projected himself as an eye
witness by claiming that he was present near the shop of one
Dinabandhu Sethi but in the spot map i.e. Ext.10, it has not been
indicated, the fact which was admitted by P.W.12. But such
elicitation from P.W.12 by itself is not sufficient to reject the
entire evidence of P.W.1. Whether P.W.1 was referring to the
house or shop of said Dinabandhu Sethi which in any case could
not be substantiated cannot be a ground to disbelieve whole of
his evidence. It is also contended that the scribe of the FIR was
not examined and also a charge sheeted witness, namely, Santosh
Maharana at whose shop P.W.2 was present, whereas, the
witnesses, namely, P.W.6 and P.W.11 were picked up for
examination. In fact, such non-examination of a witness has not
affected or dented the prosecution claim as all the material
witnesses including P.W.1 have been examined. It is claimed that
the vehicle in question in which the accused persons arrived was
not seized by P.W.12 which again cannot be a ground to reject
the version of the prosecution. Admittedly P.W.12 has not seized
any paper with regard to the alleged lease of the tank. However,
from the evidence of P.W.2 and others, such fact of dispute
between the parties relating to a tank has surfaced to which the
motive stands attributed. As to the citations, the Court considers
JCRA Nos.11 & 12 of 2001
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that since none of the material witnesses have been left out by the
prosecution, therefore, the decision in Hem Raj (supra) which
has been relied upon by the learned defence counsel cannot be
made applicable. As serious doubt was entertained in the conduct
of the informant and since the parties were in litigating term, the
Supreme Court in K.A.Kotrappa Reddy and another v. Rayara
Manjunatha Reddy and others (2016) 14 SCC 729 disbelieved
the prosecution story and confirmed the reversal of conviction. In
Jagdish (supra) as against the background of having animosity
between the parties and considering other factors like delay in
lodging of FIR, etc. doubted the prosecution case and confirmed
the concurrent findings. Therefore, according to the Court, the
above rulings which have been relied upon from the side of the
defence are distinguishable as it turns on the facts and
circumstances peculiar to the said cases. While adverting to the
probative value of a relative witness, the Apex Court in Vijendra
Singh (supra) observed as under:
"In this regard reference to a passage from Hari
Obula Reddy v. State of AP (1981) 3 SCC 675 would
be fruitful. In the said case, a three-Judge Bench has
ruled that:
"[it cannot] be laid down as an invariable
rule that interested evidence can never form the
basis of conviction unless corroborated to a
material extent in material particulars by
independent evidence. All that is necessary is that
the evidence of the interested witnesses should be
subjected to careful scrutiny and accepted with
caution. If on such scrutiny, the interested
testimony is found to be intrinsically reliable or
JCRA Nos.11 & 12 of 2001
// 9 //
inherently probable, it may, by itself, be sufficient,
in the circumstances of the particular case, to base
a conviction thereon."
It is worthy to note that there is a distinction
between a witness who is related and an interested
witness. A relative is a natural witness. The Court
in Kartik Malhar v. State of Bihar (1996) 1 SCC
614 has opined that a close relative who is a natural
witness cannot be regarded as an interested
witness, for the term "interested" postulates that the
witness must have some interest in having the
accused, somehow or the other, convicted for some
animus or for some other reason."
Though P.W.1 is the brother of the deceased and despite his
claim about existence of a shop of one Dinabandhu Sethi could
not be established, the same cannot be a justification to reject his
evidence in entirety. The incident is not only narrated by P.W.1
but also by P.Ws.2 and 3, who are outsiders. The evidence of
P.Ws.2 and 3 cannot also be discarded on the ground of direct
enmity which is always considered to be a double edged weapon.
All of them rather successfully withstood the cross-examination.
In other words, the defence failed to elicit any such material to
demolish the prosecution story. Having had a wholesome
appreciation of the evidence on record, the Court reaches at a
conclusion that the impugned decision of the learned court below
suffers from no legal infirmity.
12. Accordingly, it is ordered.
13. In the result, the appeals stand dismissed. As a logical
sequitur, the impugned judgment dated 30th October, 2000 passed
in S.C. No.29 of 1998 by the learned 2nd Additional Sessions
JCRA Nos.11 & 12 of 2001
// 10 //
Judge, Berhampur is hereby confirmed. Consequently, the bail
bonds of the Appellants are cancelled and they are directed to
surrender before the court below within seven days and in any
case by 15th August, 2022 to undergo the sentence.
(R.K. Pattanaik)
Judge
(Dr. S. Muralidhar)
KC Bisoi/Secretary Chief Justice
JCRA Nos.11 & 12 of 2001
