Orissa High Court

Sada Bentakar vs State Of Odisha on 18 November, 2022

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                         JCRLA No.18 of 2012
     (From the judgment of conviction and order of sentence dated
     04.10.2008 passed by the learned Sessions Judge, Keonjhar in
     Sessions Trial Case No.65 of 2008)

     Sada Bentakar                                 ....             Appellant
                                   -versus-
     State of Odisha.                              ....          Respondent

     Advocates appeared in the case:
     For Appellant             :              Mr. Chitta Ranjan Sahu, Adv.
                                   -versus-

     For Respondent                :            Ms. Samapika Mishra, ASC


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

                    DATE OF HEARING:-03.11.2022
                   DATE OF JUDGMENT:-18.11.2022

       Dr. S.K. Panigrahi, J.

1. In this JCRLA, the convict/ Appellant (Sada Bentakar)

challenges the judgment of conviction and order of sentence

dated 04.10.2008 passed by the learned Sessions Judge,

Keonjhar in Sessions Trial Case No.65 of 2008, whereby the

Petitioner was convicted and sentenced to undergo

imprisonment for life for commission of offence under Section

302 of the Indian Penal Code, 1860 (hereinafter referred to as

"the I.P.C." for brevity).

I. CASE OF THE PROSECUTION:

1. On 27.10.2007, a quarrel occurred at village Tangartali due

to some issues relating to distribution of wages between

Pari Bentakar-the deceased and Macchi Bentakar(Tractor

Driver). When Machhi Bentakar came and asked for his

money, though he did not have any share in the wages,

there was a quarrel between the deceased and Machhi

Bentakar. During the altercation, Pari Bentakar dealt a slap

to Machhi Bentakar. The present Appellant is the maternal

uncle of Machhi Bentakar and he was told by Machhi that

Pari Bentakar assaulted him. The Appellant being angry

came with a 'Budia' threatening that he would murder Pari

Bentakar and assaulted by means of the said Budia on the

head of the deceased, as a result of which the deceased

sustained severe bleeding injuries and his brain matters

came out and he fell on the ground. Having heard the said

information, one Dhaneswar Nayak (P.W.1), the Ward

Member of Ward No.12 of Raisuan Gram Panchayat,

rushed to the post. He found that the deceased was lying in

a pool of blood. He was narrated about the incident by the

mother of the deceased. Then P.W.1 lodged F.I.R. at

Keonjhar Sadar Police Station on the same night at around

07.30 P.M. Thereafter, the investigation proceeded. The

deceased was taken to District Headquarters Hospital,

Keonjhar in an injured condition for medical treatment. The

deceased died at the hospital while undergoing treatment

in the same night at around 11.15 P.M. The Appellant was

arrested and after completion of investigation, he was

charge sheeted under Section 302 of the Indian Penal Code.

After the charge was framed, the trial was completed by the

Learned District and Sessions Judge, Keonjhar and the

Appellant was convicted under Section 302 of IPC and

sentenced to undergo imprisonment for life. Hence, this

appeal.

II. SUBMISSION OF THE APPELLANT:

2. Mr. C.R. Sahu, Learned Counsel for the Appellant strenuously

argued that the deceased died after a certain gap due to the

injuries inflicted on him. Hence, the dying declaration could

have been obtained by the prosecuting agencies which they

have miserably failed to record. The said document could

have established the truth in the right direction. He further

submitted that the accused/ Appellant himself was injured;

however, he has not taken the plea of private defence .

3. He further submitted that the eyewitness P.W.2-Peer Bentakar

is the wife of cousin of the deceased. The evidence advanced

by P.W.2 cannot be taken as a gospel truth in order to

establish the complicity of the present Appellant.

III. SUBMISSIONS OF THE STATE/ RESPONDENT

4. Ms. Samapika Mishra, learned Additional Standing Counsel

for the State submitted that the prosecution has examined as

many as six witnesses. P.W.1 is the Ward Member of the

village, and he is also the neighbor of the accused. He stated

that Pari Bentakar (the deceased), Machhi Bentakar (the

nephew of the deceased) and others were labourers working

in a tractor on the fateful day. Pari and other labourers were

working in the said tractor. There was quarrel between them

relating to distribution of wages among themselves. Since

Machhi Bentakar demanded more wages, Pari told that since

he had not gone for work, he would not get the wages. When

Machhi insisted for payment of his share of wages without

doing any work, Pari slapped Machhi. Thereafter, Machhi

went and called the Appellant who is his maternal uncle. The

Appellant came with a tangia and assaulted the head of Pari

Bentakar causing severe bleeding injury and the brain matter

came out of his head. Pari fell on the ground. Accused Sada

thereafter smeared blood of Pari on his own face. P.W.1

narrated the whole incidents to the police and lodged F.I.R.

orally which was later reduced into writing under Ext.1.The

entire incident took place at 4.00 PM. in the afternoon. Due to

assault by the accused on the deceased with a tangia, Pari

died around 11.00 P.M.

5. She further submitted that though the facts have been written

in the F.I.R., those facts have not been confronted by the

defence. P.W.2 (Par Bentakar), the wife of the cousin of the

deceased who reached the occurrence spot at that time stated

that Pari was lying on the ground, and she took him to the

Hospital. She had also seen the occurrence. P.W.3 (Kalu

Bentakar) is a co-villager and has stated that he was working

as a labourer in the tractor. The occurrence took place in front

of house of his uncle Paga Bentakar. He saw the accused Sada

Bentakar assaulted Pari by means of a tangia at the back side

of his head. Pari fell with bleeding injury. Pari was taken to

hospital. In that hospital Pari died.

6. Learned Counsel for the State submitted that P.W.3 is also an

ocular witness who saw the accused assaulting the deceased

by means of a tangia at the back side of his head. P.W.3 is also

a credible witnesses whose evidence has the requisite

relevance to prosecute the present Appellant and thus, cannot

be disbelieved.

IV. COURT'S REASONING AND CONCLUSION:

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

of eyewitnesses i.e., P.W.2 & P.W.3. P.W.2(Per Bentakar) is the

wife of the cousin of the deceased and she was an eyewitness

to the occurrence whereas P.W.3 (Kalu Bentakar) was the

neighbor of the Appellant. It is not in dispute that there was a

quarrel between Macchi Bentakar and Pari Bentakar as the

same can be confirmed from the deposition of P.W.2. The

deposition of P.W.2 confirms the fact that there was a quarrel

between the deceased and Macchi Bentakar over distribution

of wages and Macchi demanded his share of wage though he

had not gone to work on the said day. In the cross

examination, P.W.2 had testified that the place of quarrel over

the distribution of wage was more than 100 yards from her

house and she rushed to the spot after hearing the quarrel.

Moreover, the defence has not disputed the factum of quarrel

between Macchi and the deceased over distribution of wages.

It is thus an admitted fact that Macchi and the deceased

quarreled over distribution of wages and it spiraled to the

point that the deceased slapped Macchi following which

Macchi informed the Appellant and the Appellant assaulted

the deceased with an axe and killed him.

8. The pertinent question that comes to the fore in the present

scenario is that whether P.W.2 & P.W.3 had actually

witnessed the Appellant assaulting the deceased as their

testimony in the cross-examination reveal that they heard of

the quarrel and reached the spot and saw the deceased lying

in a pool of blood. The deposition of P.W.3 reveals that he

witnessed the Appellant assaulting the deceased by a tangia

at the back side of his head, while returning from the nearby

pond. However, the testimonies of P.W.2 and P.W.3 in the

cross-examination provide that they rushed to the place of

occurrence after hearing shouts and found the deceased lying

in a pool of blood. Merely, from this it is not inferable that

they had not seen the Appellant causing injuries upon the

deceased nor their version on that score can be doubted.

When they have categorically stated that they were not near

the Appellant and the deceased and hearing shout they went

to the spot. So before that actual assault having been made;

we cannot discarded their version that they had seen the

Appellant assaulting the deceased when P.W.3 states that the

occurrence took placed near his house and that is not denied

and P.W.2 says to have seen the same from a distance. Thus,

from their version that when they arrived near the spot, they

saw the deceased lying in a pool of blood, by no stretch of

imagination we can say that their statement as to have seen

the Appellant dealing axe blow upon the deceased.

9. The circumstantial evidence in the present case affirms the

deposition given by P.W.2 & P.W.3. It is because, neither the

existence of quarrel between the deceased and Macchi has

been disputed nor there is any evidence on record to show

that the Appellant acted in private defence at the spot of

occurrence due to which the deceased sustained serious head

injuries. As per the Chemical Examination Report of the

Forensic Science Laboratory, the weapon of offence i.e., axe

contained deep traces of human blood of 'A' group and the

lungi of the deceased contained moderate traces of human

blood of 'A' group and this constitutes an item of evidence

against the Appellant. Furthermore, P.W.5 after thorough

examination of the weapon opined in affirmative that the said

weapon could inflict an injury of such gravity. If the

depositions of P.W.2 & P.W.3 are considered along with the

documentary evidence on record and medical evidence of

P.W.5, it is crystal clear that the evidence is natural,

trustworthy and acceptable.

10. Learned Counsel for the Appellant has contended that the

dying declaration could have been obtained by the

prosecuting agencies which would have established the truth

in the right direction. Further, it has been submitted that

evidence advanced by P.W.2 and P.W.3 cannot act as the sole

basis for conviction as P.W.2 is the wife of the cousin of the

deceased and P.W.3 is a neighbor of the deceased. However,

we are of the opinion that it is the quality and not the quantity

of evidence which is necessary for proving or disproving a

fact. The legal system has laid emphasis on value, weight and

quality of evidence rather than on quantity, multiplicity or

plurality of witnesses. The test is whether the evidence has a

ring of truth, is cogent, credible and trustworthy or otherwise.

In the case at hand, even though the dying declaration of the

deceased was not recorded, the evidentiary value of the

deposition of P.W.2 & P.W.3 combined with and corroborated

the circumstantial evidence and Chemical Examination

Report, affirms the guilt of the Appellant.

11. 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. The Court observed:

"It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs."

12. In Anil Phukan v. State of Assam2, the Supreme Court observed;

"Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the

(1973) 2 SCC 793

(1993) 3 SCC 282 : JT 1993 (2) SC 290

courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a 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 eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect."

13. Furthermore, in the present case, the Appellant was present at

the murder spot while the incident occurred, and he was also

the only person who had sustained minor injuries due to

scuffle with the people in the crowd. This fact carries greater

significance as the Appellant was confronted violently by

some people in the crowd. Even though, it cannot be

construed from the above-mentioned fact that the Appellant

was the one who murdered the deceased; but that again

provides corroboration to the evidence of P.W.2 and P.W.3.

The very conduct of the Appellant in dealing a fatal blow

with an axe to the head of deceased by coming out of his

house holding that and the gravity of the injury that the

deceased suffered to the extent that his brain matter came out,

establishes the Appellant's guilty intention.

14. P.W.5, the Asst. Surgeon, who examined the Appellant, found

on him one bruise of size 2" x 2" on right malar prominence

of face and a laceration of size ¼" x ¼" on right upper lip.

P.W.5 opined that those injuries were quite simple in nature

and might have been caused by hard and blunt weapon or

might have been possible because of fall on hard and rough

surface. It is the story of the prosecution that the Appellant

was assaulted as someone at the spot acted in retaliation

being unable to bear the gravity of injury that the deceased

had sustained because of the act of the Appellant.

Considering the nature of injuries sustained by the Appellant,

we are of the view it might have been possible because of

scuffles between the people present at the spot and the

Appellant. There is no reason to disbelieve the prosecution

story when the Appellant has not taken the plea of right of

private defence either before the Trial Court or in the

Criminal Appeal and it is not also said that the deceased was

then armed. Therefore, it cannot be also said that the injuries

sutained by the Appellant have not been explained. Learned

counsel for the Appellant, however, submits that the

Appellant is entitled to the right of private defence and even

though they have not pleaded. We see no force in this

submission. As already noted, the injuries on the Appellant

are very minor and the prosecution has adequately explained

as to how the Appellant suffered such injuries and there is no

reason to reject the prosecution case as untrue. We may

incidentally mention here that there is not a whisper from the

side of the Appellant as to how he received the injuries. No

doubt the burden is not on him but in appreciating the facts of

the case, that aspect also must be borne in mind.

15. It is well-settled that even if an accused does not plead self-

defense, it is open to the Court to consider such a plea if the

same arises from the material on record. The burden of

establishing that plea is on the accused and that burden can

be discharged by showing preponderance of probabilities in

favour of that plea on the basis of the material on record. In

the instant case, not only the plea of private defence was not

taken by the Appellant in their statement but also, no basis for

that plea was laid in the cross-examination of the prosecution

witnesses or by adducing any defence evidence. In our

opinion the burden of establishing that plea was not

discharged in any manner by the Appellant even applying the

test of preponderance of probabilities in favour of that plea.

There is absolutely no material in the records of this case to

lead to any such conclusion. On the other hand, the

prosecution has satisfactorily explained as to how the

Appellant suffered injuries and we believe that such

explanation is cogent and genuine. The submission of

Learned Counsel for the Appellant thus fails.