Orissa High Court
Purna Chandra Behera vs State Of Orissa on 8 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.41 of 2011
From the judgment of conviction and order of sentence dated
24.01.2011 passed by the learned Additional Sessions Judge, Titilagarh,
in Sessions Case No.2 of 2010.
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Purna Chandra Behera .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.J.Sahu
Advocate
For Respondent - Mr.S. K. Nayak
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
Date of Hearing : 05.12.2022 : Date of Judgment:08.12.2022
D.Dash,J. The Appellant, by filing this Appeal, has called in question the
judgment of conviction and order of sentence dated 24.01.2011 passed
by the learned Additional Sessions Judge, Titilagarh, in Sessions Case
No.2 of 2010.
The Appellant (accused) has been convicted for commission of
offence under section 302 of the Indian Penal Code, 1860 (for short,
'IPC') and accordingly, he has been sentenced to undergo imprisonment
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for life and pay fine of Rs.10,000/- with default stipulation to undergo
rigorous imprisonment for one year.
2. Prosecution case is that on 28.08.2009, around 4.00 p.m., the
Appellant (acused), namely, Purna Chandra Behera, carrying an Axe
(Tangia), had been to the house of Sadananda Rajpalia (P.W.7) and
finding Natha Rajpalia, the father of P.W.7 to be absent, had threatened
that he would killed him. Sadananda and his family members, out of
fear, closed the door and remained inside. It was around 11.00 p.m. in
the night, one Sukumari Rajpalia (P.W.1) informed that while he was a
sleep in her house, she heard shouts and having opened the door, saw
the Appellant (accused) inflicting blows on the head of the deceased
Natha Rajpalia (deceased) by an Axe (Tangia). It was in front of the
house of Chalandri Rajpalia. She out of fear then shouted. Hearing the
shout, accused Purna fled away carrying the Axe (Tangia) with him
towards his house.
Receiving the information, Sadananda Rajpalia (P.W.7) came to
the spot and found his father lying dead with bleeding injuries. He then
lodged report before the Sub-Inspector of Police (S.I.) attached to
Tikrapada Police Out Post under Saintala Police Station. He then
entered the said fact in the Station Diary book maintained at the out post
and sent the same to Saintala Police Station for registration of the case.
The S.I. of Police attached to Saintala Police Station, in the absence of
the Inspector-in-Charge (IIC) of the Saintala Police Station (P.W.22),
immediately registered P.S. Case No.130 (18) of 2009 and directed the
S.I. of Police attached to Tikrapada out post (P.W.21) to take up the
investigation.
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In course of investigation, the S.I. of Police (P.W.21) examined
the Informant, visited the spot and held inquest over the dead body of
the deceased in presence of the witnesses and prepared the inquest
report (Ext.2). He also sent the dead body of the deceased for post
mortem examination by issuing necessary requisition. From the spot
during his visit, he seized the teeth of the deceased lying there and some
amount of cement stained with blood and accordingly prepared the
seizure list (Ext.3). Other witnesses including the seizure witness and
the eye witness (P.W.1) were then examined. He also prepared the spot
map (Ext.14) and then arrested the accused. Said accused, while in
police custody, stated to have kept the weapon Axe (Tangia) concealed
and agreeing to give recovery of the same, gave his statement to that
effect, which was recorded under Ext.5/1. The accused then led the
police and witnesses to his house and gave recovery of the Axe (Tangia)
as well as his wearing apparels such as blood stained blue full shirt and
white check shirt, which were seized under seizure list Ext.4/1. The Axe
(Tangia) being seized, had been sent to the Doctor conducting post
mortem examination to opine as to if by that injuries, noticed on the
person of the deceased, are possible. On 29.08.2009 around 11.00 p.m.,
the S.I. of Police seized the wearing apparels of the deceased. The
incriminating articles were sent for chemical examination through
Court.
On 16.11.2009, the I.I.C. of Saintala Police Station (P.W.22) took
charge of the investigation from P.W.21. He examined other witnesses
and on completion of the investigation, submitted the final form placing
the accused to face the trial for commission of offence under section 302
IPC.
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3. Learned Sub-Divisional Judicial Magistrate, Titilagarh, having
taken cognizance of the offence and after observing all the formalities,
committed the case to the Court of Sessions. That is how the trial
commenced by framing the charge against the accused for having
committed the offence under section 302 IPC in causing the murder of
the deceased intentionally.
4. In the trial, the prosecution in total has examined twenty-two (22)
witnesses; out of them, P.W.7, as already stated, is the Informant, who
happen to be the son of the deceased. P.W.1 is the eye witness, who had
informed about the incident to P.W.7. P.W.2 is another witness, who
was informed by P.W.1 about the incident. P.W.20 is the Doctor, who
had conducted the autopsy over the dead body of the deceased and has
given his report (Ext.10). P.W.21 is the S.I of Police, who initially
conducted the investigation for some period and P.W.22 is the I.I.C. of
Saintala P.S., who concluded the investigation and submitted the final
form.
Besides examining the above witnesses, the prosecution has
proved several documents such as FIR (Ext.1), inquest report (Ext.2),
post mortem (Ext.10), seizure list and chemical examiner report
(Ext.19). The seized Axe (Tangia) has been produced during the trial
and marked as Material Object (M.O.I). The full pant and check shirt of
the accused as well as the Chadi and shirt of the deceased were
produced before the Trial Court and marked as M.O.II to M.O.V
respectively.
5. The plea of defence is that of complete denial and false
implication. No evidence has also been let in from the side of defence.
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6. The Trial Court on going through the evidence of the Doctor
P.W.20, who had conducted post mortem examination over the dead
body of the deceased and submitted his report (Ext.10) as also other
witnesses including P.W.21, who had held inquest over the dead body of
the deceased and submitted his report (Ext.2) has held the death of the
deceased to be homicidal in nature. In fact, this aspect of the case was
not so challenged before the Trial Court nor it is being so questioned
here before us.
Careful reading being given to the evidence of the Doctor
(P.W.20), it is seen that he had noted one external cut injury of 3½ inch
X 2 inch X 2 inch on the right side of the forehead penetrating scalp
bone meninges and frontal lobe of brain and another cut injury of 4 inch
X 3 inch X 3 inch on the right side of the face leading to avulsion of
right eyebrow from the socket and one crushed injury to right side of the
face leading to fracture of the maxilla upper jaw and lower jaw. The was
dislocation of all the teeth from the right upper jaw. On dissection,
P.W.20 had found depressed fracture and a cut on the right side of
frontal bone leading deep into the brain matters. All these injuries have
been noted in his report (Ext.10). P.W.21, who had held inquest over the
dead body deceased, too had noticed the external injuries and indicated
the same in his report (Ext.2). Taking into account all these above as
well as the evidence of other witnesses, who had seen the deceased lying
dead with bleeding injuries, We are wholly in agreement with the
conclusion of the Trial Court that the deceased met a homicidal death.
7. Learned counsel for the Appellant submitted that the prosecution
here relies upon the solitary testimony of the P.W.1, who has been
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projected as the eye witness to the occurrence. Inviting our attention to
the deposition of P.W.1, he submitted that such evidence of P.W.1 is not
safe to be relied upon as she has given prevaricating statements and
those too are not receiving corroboration on material particulars from
other sources. He further submitted that the evidence of P.W.7 and
P.W.2 to whom P.W.1 says to have informed about the incident are in
variance with each other. He points out the discrepancy in the evidence
of P.W.1 and P.W.7 as to how and in which manner P.W.7 was
informed. He thus submitted that the Trial court has gone wrong in
basing the conviction upon the evidence of P.W.1, when the evidence of
that witness is not of unimpeachable character. It was also pointed out as
the conduct of those two witnesses being not normal, the same shakes
the credibility of those witnesses and as such, their evidence, according
to him, are not at all trustworthy.
8. Learned Additional Government Advocate for the Respondent,
while supporting the judgment of conviction of the accused by the Trial
Court, submitted that P.W.1 is a natural witness and her presence, at the
time of occurrence has been fully established when it has also not been
questioned by the defence. He submitted that as no such material
surfaces to raise any doubt on her testimony, the conviction recorded by
the Trial Court is well in order.
9. Keeping in view the submission made, We have carefully read the
judgment passed by the Court below. We have also extensively travelled
through the depositions of the witnesses of P.Ws.1 to P.W.22 and have
perused the documents admitted in evidence and marked Ext.1 to
Ext.19.
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10. The prosecution here heavily relies upon the evidence of P.W.1,
who is said to be the eye witness to the occurrence and the role of the
accused therein.
It is the settled principles of law that a conviction can be based on
the solitary testimony of a witness and it is always not necessary that the
said evidence must receive corroboration so as to be accepted as reliable
and trustworthy. The evidence of the witness must stand to scrutiny and
pass through the test of reliability so as to say that the same is wholly
reliable. When only the single eye witnesses is not found to be wholly
reliable witness, in the sense that there are some circumstances which may
show that he could have an interest in the prosecution, then, the Courts
generally insist upon some independent corroboration of his testimony, in
material particulars, before recording conviction. It is only when the courts
find that the single eyewitness is a wholly unreliable witness that his
testimony is discarded in toto and no amount of corroboration can cure that
defect.
Bearing the above in mind, let us first of all scrutinize the evidence of
P.W.1 to find out as to whether her testimony stand to the test of
reliability.
P.W.1 is a married lady of twenty-five years old and is a co-
villager of the deceased as well as the accused. She has stated that in the
night, she saw accused assaulting the deceased by an axe (tangia) on his
face on the road running in front of their house. She states that accused
was inflicting axe (tangia) blows by its sharp side on the face of the
deceased and seeing this when she raised hullah, accused fled away and
then she immediately called her paternal uncle Biswajaya Rajpalia
(P.W.2) and told him about the incident, who, in turn, informed the son
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of the deceased (P.W.7) and then the family members of the deceased
rushed to the spot and from there, they went to the Police Station. The
witness has been cross-examined. She at one point of time has of course
said that when she opened the door of her house, the accused fled away
but that appears to be of no such significance when she has gone
asserting that she had seen the accused assaulting the deceased by axe
(tangia) on his face in front of the road running in front of their house.
She pin pointedly states that accused was inflicting the blows by the
sharp side of the axe (tangia) and when she raised hullah, accused fled
away. Thus, this witness certainly at that point of time was not expected
to be sitting outside her house and when she says that she opened the
door and the accused fled away; that is clearly referable to the fact that
after she saw the accused dealing the blows, when she raised hullah, the
accused fled away as otherwise there was no occasion for the accused to
immediately leave the place. Thus, said statement of P.W.1 when taken
into account with the totality of her evidence, in our opinion is not
sufficient to hold P.W.1 as not a reliable witness. Moreover, the
evidence of P.W.1 finds corroboration from the evidence of P.W.2, who
is the paternal uncle of P.W.1 and whose house is nearby and under the
circumstance, it is normally expected that P.W.1 would inform him as to
what she saw P.W.2.
P.W.2 states that while asleep, P.W.1 woke him up and when he
woke up, he was told by P.W.1 that accused assaulted the deceased. He
is none other than the person, who scribed the FIR under the instruction
of P.W.7. He has clearly stated to have derived the knowledge about the
incident from P.W.1. The witness having been cross-examined, his
evidence has remained unshaken.
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P.W.7, who is the son of the deceased, has told that when he was
asleep, he received a telephone call from P.W.2 that his father had been
murdered by the accused and thereafter they all went to the spot. He has
also stated to have lodged the FIR. This witness also arrived at the scene
of occurrence some time later and found, his father lying dead sustaining
some injuries. The evidence of all these witnesses find full corroboration
from the evidence of the Doctor (P.W.20), who had noticed the injuries
on the body of the deceased run in consonance with the evidence of
P.W.1 as regards the seat of injuries and he too has opined that the
injuries so noticed are possible by the axe (tangia-M.O.I) which has
been seized by P.W.21 from the house of the accused which he has
deposed. The evidence of P.W.1 to the effect that she having opened the
door, saw the incident clearly finds stated in the FIR (Ext.1). This
witness (P.W.1) noted about is a distant relation of the deceased as has
been brought in cross-examination. But, that itself is no ground to say
that she is stating falsehood when no such material as to disbelieve her
presence at the time of occurrence is forthcoming. We also do not find
that there was any such reason on the part of all these witnesses to
falsely implicate the accused. It is true that in this case, the witnesses,
who have been cited from the side of the prosecution to prove the
recovery and seizure of the Axe (Tangia) at the instance of the accused
while in police custody pursuant to his statement have resiled from their
previous version, yet that in our view, does not adversely affects the
prosecution case as laid through the evidence of eye witness (P.W.1),
which is reliable and find corroboration from the evidence of P.Ws.2 &
7.
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11. On the conspectus of analysis of the evidence hereinabove, this
Court finds that the prosecution has proved its case against the
Appellant (Accused) beyond reasonable doubt for having committed the
murder of Natha Rajpalia (deceased) and as such the judgment of
conviction and order of sentence, as returned by the Trial Court, are not
liable to be interfered with.
12. In the result, the Appeal is dismissed. The judgment of
conviction and order of sentence dated 24.01.2011 passed by the learned
Additional Sessions Judge, Titilagarh, in Sessions Case No.2 of 2010
are hereby confirmed.
(D. Dash)
Judge.
Dr.S.K.Panigrahi, J. I Agree.
(Dr.S.K.Panigrahi)
Judge.
Basu
JCRLA No.41 of 2011
