Orissa High Court

Sukra Beti vs State Of Orissa on 8 December, 2022

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                     JCRLA No.02 of 2012

     (From the judgment of conviction and order of sentence dated
     24.09.2011/26.09.2011 passed by the learned Additional
     Sessions Judge, Malkangiri in Criminal Trial No.18 of 2011)


     Sukra Beti                                ....           Appellant

                                -versus-

     State of Orissa                           ....          Respondent


     Advocates appeared in the case:
     For Appellant             :           Ms. Mandakini Panda, Adv.

                                -versus-



     For Respondent             :             Mr. S.S. Kanungo, AGA


                  CORAM:
                  MR. JUSTICE D. DASH
                  DR. JUSTICE S.K. PANIGRAHI

                    DATE OF HEARING:-02.11.2022
                   DATE OF JUDGMENT:-08.12.2022

       Dr. S.K. Panigrahi, J.

1. In this JCRLA, the convict/ Appellant (Sukra Beti) challenges

the judgment of conviction and order of sentence dated

24.09.2011/26.09.2011 passed by the learned Additional

Sessions Judge, Malkangiri in Criminal Trial No.18 of 2011,

whereby the Appellant was convicted for commission of

offence under Section 302 of the Indian Penal Code, 1860

(hereinafter referred to as "the I.P.C." for brevity) and

sentenced to undergo imprisonment for life and to pay a fine

of Rs.5,000/- only in default to undergo R.I. for a further

period of one year.

I. CASE OF THE PROSECUTION:

2. The prosecution case, in brief is that on 24.07.2010 at 3.00 p.m.,

Kumuti Khilla (hereinafter "informant") of village Jaruguda,

presented a written report at Malkangiri P.S.to the effect that

on 23.07.2010 at about 6.00 pm, he along with his wife Bimala

Khilla were returning from their cultivated land after

seedling. Bimala Khilla (hereinafter "deceased") reached first

and he remained in his land to guard the seedlings from the

cattles. Thereafter, one Saiba Khilla of their village came to

him and told that the accused assaulted his wife by means of

a bamboo lathi and that he along with another person namely

Mugi Khilla took Bimala to her house and tried to provide

water to her, however, she died. On hearing this, the

informant rushed to his house and found his wife Bimala

lying dead on the verandah. Thereafter, the informant

disclosed the matter before the village gentry and on

24.07.2010 morning, a village meeting was held wherein the

accused made extra judicial confession to have killed Bimala

Khilla.

3. On receipt of the information from the informant, I.I.C.,

Malkangiri P.S. registered Malkangiri P.S. Case No.84 dated

24-7-2010 and directed S.I. S.K. Nayak to take up investigation

of the case. The said S.I. conducted inquest over the dead

body of Bimala Khilla and sent her dead body for post-

mortem examination. He also seized the bamboo lathi used in

commission of crime of committing murder to Bimala Khilla.

The Appellant was arrested and after completion of

investigation, he was charge sheeted u/s 302 of the Indian

Penal Code. After the charge was framed, the trial was

completed by the Learned District & Sessions Judge, Keonjhar

and the Appellant was convicted u/s 302 of IPC and sentenced

to undergo imprisonment for life. Hence, this appeal.

II. SUBMISSION OF THE APPELLANT:

4. Learned Counsel for the Appellant has completely denied the

allegations charged against the appellant. She submits that the

appellant has been falsely implicated in the present case. She

has strenuously argued that the villagers asked him to donate

the cultivable land belonging to him for the purpose of village

tank. On declining the proposition, he has been falsely

implicated in this case by the villagers to grab his land.

5. Learned Counsel further contended that if at all, the accused

should be charged under culpable homicide not amounting to

murder. He has submitted that P.Ws 2, 3 and 4 have not

clarified in their deposition regarding the motive of the

appellant for this attack on the deceased. Therefore, the attack

on the deceased by the accused was not premeditated, rather,

it was sudden and in the heat of the moment.

III. SUBMISSIONS OF THE STATE/ RESPONDENT

6. Learned Counsel for the State submitted that the prosecution

has examined as many as twelve witnesses including the

informant i.e. P.W.1. P.Ws 2,3 and 4 are the eye witnesses to

the occurrence. They were also present in the village meeting

when the accused made extra judicial confession that he killed

Bimala Khilla (deceased). P.W.5 was also present in the said

meeting when the accused made extra judicial confession as

well as a witness to the seizure of bamboo lathi; i.e. the

weapon of offence at the spot.

7. P.Ws 2, 3 and 4 are the co-villagers of the informant as well as

the accused. They have clearly and categorically stated in

their evidence that the occurrence took place about eleven

months back on a day at about 6.00 p.m. Additionally, their

statements with respect to having seen the accused hit the

deceased on her waist with a bamboo lathi has also been

corroborated. Moreover, there is no reason to dis-believe the

corroborated statements of the eye-witnesses.

IV. COURT'S REASONING AND ANALYSIS:

8. Heard both the parties and went through the judgement of the

Trial Court. After extensively perusing the documents

adduced by the prosecution and the depositions of the

witnesses, this Court is of the view that there are two points of

determination in the present case:

i. Whether the prosecution has proved beyond

reasonable doubt that the act of the appellant led to

the death of the deceased?

ii. Whether the act of the appellant was premeditated

and with an intention to cause the death of the

deceased?

9. In order to substantiate the case against the accused, the

prosecution has examined altogether twelve witnesses

including the informant as P.W.1. P.Ws 2,3 and 4 are the eye

witnesses to the occurrence. They were also present in the

village meeting when the accused made extra judicial

confession that he killed the deceased. P.W.5 is the witness

who was also present in the said meeting when the accused

made extra judicial confession as well as a witness to the

seizure of bamboo lathi; i.e. the weapon of offence at the spot.

P.W.6 is a witness to the seizure of the wearing apparels of the

deceased after post-mortem examinations.

10.The case of the prosecution mainly rests upon the testimony of

eyewitnesses i.e., P.W.2, 3 & 4 coupled with the post-mortem

report of P.W.12. P.W.2 is an eye witness to the occurrence and

he informed about the assault on the deceased by the accused

to P.W.1. P.W.2 deposed in his evidence that on the day of

occurrence at about 6.00 p.m. i.e. about eleven months back, he

was sitting in his house and at that time, the accused assaulted

Bimala by means of a bamboo lathi on her waist. His

deposition further reveals that due to assault, when Bimala fell

on the ground, he along with P.W.3 took Bimala from the spot

of incident to her house. He has further stated that on the

following morning, a village Panchayat was held wherein the

accused confessed his guilt that he committed the murder.

P.W.3 and 4 have fully corroborated the evidence of P.W.2 in

all material particulars including the date and time of

occurrence, use of weapon and the accused. The three eye-

witnesses were cross-examined at length by the learned State

Defence Counsel, however, nothing has been elicited from

their mouth to dis-credit their sworn testimony.

11.Owing to the number of eye-witnesses and their corroborative

value, the Trial Court has rightfully relied on them with

regards to the case of the prosecution. It has been well-

established by law that there can be a conviction on the basis

of the deposition of the sole eye witness, if the said witness is

found to be trustworthy and/or reliable. As observed

hereinabove, there is no reason to doubt the credibility and/or

reliability of P.W.2, 3 and 4. In the case of Shivaji Sahebrao

Bobade v. State of Maharashtra1, the Supreme Court held that

even where a case hangs on the evidence of a single eye

witness it may be enough to sustain the conviction given

sterling testimony of a competent, honest man although as a

rule of prudence courts call for corroboration.

12. The Trial Court has also taken into consideration the fact that

the accused made extra judicial confession in the village

meeting that he killed Bimala by assaulting her. Apart from

this, the evidence of P.Ws 1 to 4 finds ample corroboration

from the evidence of P.W.5, the Ex-Sarpanch of their area.

P.W.3 has stated in his evidence that P. Ws1, 2, 5 and other

villagers were present in the meeting including the accused.

P.W.5 has further stated that a village Panchayat was held the

following morning of the incident and he was present in the

said meeting. He has also clearly and categorically stated in

his evidence by supporting the evidence of P.Ws 1 to 4 that

the accused confessed in the meeting that he assaulted

Bimala, causing her death. He has also deposed regarding the

(1973) 2 SCC 793

seizure of the bamboo lathi at the spot vice Ext.1. Thus, P.W.5

has fully corroborated the evidence of P. Ws 1 to 4 that the

accused confessed in the village meeting that he assaulted

Bimala, causing her death.

13. P.W.8 (son of the deceased) has fully corroborated the

deposition of P.Ws 2 to 4 in all material particulars that the

accused assaulted his mother by means of a bamboo lathi,

causing her death. The Trial Court has treated P.W.8 as an

interested witness while relying on the depositions of P.Ws

2,3 and 4. Even though P.W.8 is related to the deceased,

however his deposition can be admitted as evidence

considering that his deposition has been completely

corroborated by the P.Ws 2,3 and 4. It is well settled by the

Supreme Court that in cases where there is a relation between

the witness and the deceased, it is the duty of the court to

scrutinize the evidence with proper caution. In the case of

State of Uttar Pradesh v. Jagdeo2, the court held that the

testimony of the witness cannot be discarded on the ground

that the witness is connected to the deceased if the evidence

given by him is consistent and supported with other

witnesses. Similarly in case of Bhagwan Singh and Others v.

State of Uttar Pradesh3, it was held by the Supreme Court

2003 AIR 660 SC

that the evidence of related witness cannot be discarded

solely on the ground of being related to the victim.

14. The accused has taken a stand while giving evidence as D.W.1

that the villagers had asked him to donate his cultivable land

for the purpose of village tank. Owing to the rejection of their

proposal, they have falsely implicated him in this case in

order to grab his land. Although, the accused has taken this

stand while deposing before the Trial Court as D.W.1,

however he had not taken this stand earlier, at the time of

cross-examination of PWs. Therefore, the Trial Court has

rightfully rejected the defence pleas taken by the accused.

15. P.W.12, the Medical Officer has stated in his evidence that on

post-mortem examination, the external injury such as bruise

over back side of the body, black in colour, 10 cm x 5 cm in

size, which extends from Thoratic Rib (1-10-level) obliquely

upwards to Thoracic region. He has further stated that on

dissection, he found one lacerated injury of size 5 x 3" x 1" d

on the right lobe of liver. He has further opined that the cause

of death was due to laceration injury on the right lobe of the

liver with massive internal hemorrhage leading to shock and

death. He has further opined that all the injuries were anti-

mortem in nature and in ordinary course of nature, the injury

was sufficient to cause death. He has also proved his report

vide Ext.9. Moreover, he has stated that the injury found on

the body of deceased is possible by means of M.O.IV (bamboo

lathi) and that it is possible to cause the death of a human

being by that lathi.

16. In this regard, the Trial Court concluded that the aforesaid

unassailed testimony of the doctor (P.W.12) corroborated

through the evidence of P.Ws.2, 3 and 4 coupled with the plea

of the defence i.e. no dispute to the homicidal nature of death

of the deceased points to the irresistible conclusion that, the

nature of death suffered by the deceased is neither accidental

nor suicidal, rather the same is purely homicidal one.

Therefore, this Court is of the view that the prosecution has

been able to prove beyond reasonable doubt that the act of the

appellant has led to the death of the deceased.

17. Culpable homicide becomes murder if the case comes under

any one of the clauses out of the four defined in Section 300 of

the I.P.C. and the same becomes punishable under Section 302

of the I.P.C. But the culpable homicide is not murder if the

case falls within any one of the exceptions out of five of the

said Section 300 of the I.P.C. and then the same becomes

culpable homicide not amounting to murder and punishable

under Section 304 of the I.P.C., but not under Section 302 of

the I.P.C.

18. However, if an injury is inflicted with the knowledge and

intention that it is likely to cause death, but with no intention

to cause death the offence would fall within the definition of

Section 304-I IPC and not under Section 302 IPC. In this

regard, the Supreme Court in Virsa Singh v. State of Punjab4

as also in Shankar Narayan Bhadolkar v. State of

Maharashtra5, opined:

"Applying the principles of law, as noticed hereinafter, I am of the considered opinion, that the offence committed by the appellants does not fall within the definition of Section 300 of the IPC, nor does it fall within the definition of offence, punishable under Section 304II of the Indian Penal Code. In my considered opinion, the learned trial Court rightly held that the nature of the offence, falls within the definition of Section 304-I of the IPC Section 304 deals with situations, where culpable homicide does not amount to murder, i.e. does not fall within the definition of murder, as contained in Section 300 of the IPC. Section 304 is sub-divided into two parts. If an injury is inflicted with the knowledge and intention that it is likely to cause death, but with no intention to cause death the offence would fall within the definition of Section 304-I, however, if there is no intention to cause such an injury, but there is knowledge that such an injury can cause death, the offence would fall within the definition of Section 304-II. Thus, is intention. If intention to cause such an injury as is likely to cause death, is established, the offence would fall under Part-I but where no such intention is established and only knowledge that

AIR 1958 SC 465

(2005) (9) SCC 71

the injury is likely to cause death, it would fall under Part-II."

"However, the nature of the injury, the weapon of offence, the intention and knowledge of the assailants, in my considered opinion, clearly places the offence as one under Section 304-I of the IPC. Appellant No.1 inflicted the injury with knowledge and intention that the injury, if inflicted is likely to cause death, but with no intention to cause death. However, as from the facts and circumstances of the present case, and the fact that it was a sudden fight, a single blow inflicted with the reverse side of a Kassi, it cannot be stated that he had an intention to cause death, as required to make out an offence under Section 300 of the IPC."

19. Reliance has also been placed on the decision of the Supreme

Court in the case of State of Punjab v. Tejinder Singh & Anr.6

In this case, two persons inflicted Gandasa blows on the

deceased. The altercation had already taken place four days

prior to the incident over the boundary line of the plots of the

parties. The accused persons came heavily armed shouting

that the deceased should not be spared at a point of time

when his wife had brought breakfast for him and he had gone

to hand pump to bring water in a pitcher. It was even in the

aforementioned situation, this Court held:

"In view of our above findings we have now to ascertain whether for their such acts A-1 and A-2 are liable to be convicted under Section 302 read with Section 34, IPC. It appears from the evidence

AIR 1995 SC 2466

of PW-4 and PW-5 that the deceased was assaulted both with the sharp edge and blunt edge of the gandasas and the nature of injuries also so indicates. If really the appellants had intended to commit murder, they would not have certainly used the blunt edge when the task could have been expedited and assured with the sharp edge. Then again we find that except one injury on the head, all other injuries were on non-vital parts of the body. Post-mortem report further shows that even the injury on the head was only muscle deep. Taking these facts into consideration we are of the opinion that the offence committed by the appellant is one under Section 304 (Part I), IPC and not under Section 302, IPC."

20. In the present case, it has been established by the prosecution

that the accused inflicted a serious injury on the deceased.

This has been established owing to the deposition of three

eye-witnesses P.W.2, 3 and 4; due corroboration of the

deposition of P.W.8 (son of the deceased) and the medical

report (Ext.9) of P.W.12, the medical officer. The prosecution

has further established that the injury was inflicted upon the

deceased with the knowledge and intention that it is likely to

cause death. However, he has not been able to prove whether

the attack was premeditated and with an intention to cause

death. Therefore, even if the injury inflicted was a serious one,

that by itself may not be decisive but is one of the relevant