Harasa @ Harsha Behera And Two vs State Of Odisha
2022 Latest Caselaw 4334 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                       CRA No.207 of 2000

Harasa @ Harsha Behera and two             ....           Appellants
others


                                -versus-
State of Odisha                            ....          Respondent

Advocates appeared in the cases:

For Appellants              :        Mr. Samir Ku. Mishra, Advocate

For Respondent              :                   Ms. Saswata Patnaik,
                                    Additional Government Advocate

 CORAM:
 THE CHIEF JUSTICE
 JUSTICE CHITTARANJAN DASH

                           JUDGMENT

05.09.2022 Dr. S. Muralidhar, CJ.

1. The present appeal is directed against the judgment dated 26th August, 2000 passed by the Additional Sessions Judge, Talcher in S.T. Case No.118-A/25 of 1998/2000 convicting the Appellants for the offence punishable under Section 302 read with Section 34 IPC and sentencing each of them to undergo imprisonment for life.

2. By an order dated 3rd April 2004, the Appellants were directed to be enlarged on bail during the pendency of the appeal.

3. The case of the prosecution is that on the intervening night of 20th / 21st April 1998, Goberdhan Behera (since deceased), who was the informant in the case, and his daughter-Pravati Behera (P.W. 2) woke up from their sleep hearing a sound from the courtyard in front of their house. When they came to the courtyard, they noticed deceased-Bimbadhar, son of the informant and brother of P.W.2, groaning in his sleeping place (khata). When they neared the deceased, they could notice the three accused - Harsha Behera, Accused No.1 (A1), his brother Sarata Behera (A2) and Prakash Sahu (A3) holding burchha in their hands were going away towards their village. The informant and P.W.2 found Bimbadhar lying dead in the pool of blood. They immediately called the neighbours and others, who came to the spot. The informant disclosed to them that the accused had killed his son and that A1 had threatened his son that he would kill him in case his son is appointed as a control dealer. The case of the prosecution, as spoken by the informant, was that since the deceased had been appointed as a control dealer and received the official order to lift the rations on 22nd April 1998, the accused persons murdered him in the intervening night of 20th / 21st April, 1998, a day prior to the lifting of the ration.

4. The Officer-in-Charge (OIC) at the Kaniha Police Station (PS) on 21st April, 1998 was Nityananda Jena (P.W.10). He received the information from G.R. Bira Naik of village Durgapur regarding the murder. He then proceeded to the village and received a written complaint from the informant. Thereafter FIR

PS Case No.16 of 1998 under Section 302 read with Section 34 IPC was registered and the investigation commenced. P.W.10 conducted an inquest over the dead body in the presence of witnesses and prepared an inquest report. On the same date at 12 noon, he seized the blood stained pillow, some blood stained earth, and sample earth from the spot and prepared a seizure list. He arrested the accused persons at 9 pm on 21st April, 1998. On 22nd April 1998, PW 10 obtained the post-mortem (PM) report of Dr. Mahesh Prasad Rout (P.W.11) from the S.D. Hospital, Talcher. On 18th June 1998, P.W. 10 handed over the investigation to M.D. Sahu, the Circle Inspector (CI), Talcher (P.W.8). A charge-sheet was laid against the accused. They pleaded not guilty and claimed trial.

5. On behalf of the prosecution, 11 witnesses were examined. One Golekha Sahu (D.W.1) was examined by the defence. He deposed that A1 was the control dealer and did not cause trouble to anyone. According to him, the deceased was never appointed as a dealer in place of A1. A suggestion was given to this witness about A3 misbehaving with P.W.2. However, nothing much came out from the deposition of D.W.1, which could help the defence.

6. On an analysis of the evidence, the trial Court concluded that the prosecution had been able to prove the case against the accused beyond all reasonable doubt and proceeded to convict and sentence them in the manner indicated above.

7. The trial Court noticed that P.Ws.3 and 6 had turned hostile and that the prosecution had also failed to examine Bipin and Achuta, whose names found place in the FIR. Further, the I.O had not collected any evidence regarding the motive for the crime. However, for this reason alone, the entire case of the prosecution could not be rejected.

8. This was a case based on circumstantial evidence with no person having actually seen the assault on the deceased. A fact to be noted is that even prior to the commencement of the trial, the informant expired. However, what was immediately told by P.Ws.1 and 2 to those who came to the spot, even before the dead body of the deceased was lifted from there, assumes significance under Section 6 of the Evidence Act.

9. P.W.1 was the mother of the deceased. She was absent at the relevant time as she had gone to collect Mahua flower from the nearby jungle and returned at around 2.30 to 3 am. She found the dead body of her son in a pool of blood and on the lap of his father. She was immediately told by the informant and her daughter P.W.2 that Bimbadhar was killed by means of a Bhujali by the three accused whom they could identify in the moonlight while they were decamping.

10. P.W.2 is perhaps a more crucial witness for the prosecution. She was the sister of the deceased. She explained how her father and she, on hearing a groaning sound from the courtyard where

the deceased normally slept, approached the place and noticed the three accused going away after stabbing Bimbadhar.

11. Learned counsel for the Appellants took exception to the fact that P.W.2 had sought to embellish her version by claiming that she actually saw the assault on the deceased by the three accused and falsely denied that she had not made such a statement to the police when, in fact, the IO spoke to the contrary. The relevant portion of the testimony of P.W.2 in this regard in her examination-in-chief reads as under:

"I know the accused persons Haras Behera, Sarat Behera and Prakash Sahu. On the night of occurrence my brother Bimbadhar had slept outside the house and I had slept near the door, and my father had slept a little away from me and my mother had gone to collect Mahula flower. Hearing some sound from the outside of the house, my father and myself woke up from our sleep and my father tried to enquire about the sound. My father by opening the door went near the sleeping place of my brother. Both myself and my father went near the sleeping place of my brother. We could see that accused Haras and Sarat with Bhujali and accused Prakash with Thenga assaulted to my brother. We saw Burcha to the Bhujali. After stabbing by means of Bhujali, they ran towards canal side. My father shouted holding the names of the accused persons Prakash, Sarat and Harash are going away after stabbing Bimbadhar. While shouting for help, I went to the house of our neighbours, to call them to the place of occurrence. Our neighbours Achuta and Bipini came to our house. My brother Bimbadhar, died instantaneously after the stabbings."

12. It is also true that in her cross-examination, she sought to deny that this was an improvement over her previous statement before the police. She stated as under:

"It is not a fact I did not state to the I.O. that accused Harash and Sarata were holding bhujali and Prakash holding thenga assaulted to my brother, to death and that after killing my brother they fled away towards the canal side. It is not a fact that I did not state to the I.O. about my father was shouting, holding the name of the accused persons to have killed Bimbadhar, by means of stabbing with bhujali and thenga.xxx"

13. As regards the motive for crime, her statement in examination-in-chief was as under:

"As my brother was appointed as the control dealer of our village and he was ordered to lift the stock on the next day, out of that grudge for the said dealer-ship, these accused persons killed my brother."

14. Her cross-examination in this regard was as under:

"xxx. It is not a fact I did not state to the I.O. that out of grudge for the dealership of Bimbadhar and when Bimbadhar was ordered to lift the stock, he was killed by the accused persons.xxx"

15. When this is compared with the testimony of P.W.10, he stated in his cross-examination as under:

"xxx. Witness Pravati had not stated me that accused Haras and Sarat by means of Bhujali and accused Prakash by means of thenga had assaulted and killed to her brother and thereafter they ran towards Canal and that her father

told that Bimbadhar was killed by these three accused persons, by stabbing."

16. Clearly, therefore, a portion of her evidence is an improvement over an earlier version before the police. The question then arises whether her entire testimony should be discarded or the grain can be separated from the chaff and her testimony can still be acted upon? The settled legal position in this regard is that in Indian law the Courts have not gone by the principle of falsus in uno falsus in omnibus. In other words, it is not that the entire deposition of the eye-witness would be discarded if some portion of it is found to be false. The legal principle was explained first in Rizan v. State of Chhattisgarh, (2003) 2 SCC 661 as under:

"12....In essence, the prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of

caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be discarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Ali v. The State of Uttar Pradesh (AIR 1957 SC 366).

....

The doctrine is a dangerous one specially in India for if a whole body of the testimony was to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh 1972 3 SCC 751) and Ugar Ahir and Ors. v. The State of Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in

toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and Ors. v. The State of Punjab. (AIR 1975 SC 1962)."

17. In the present case, P.W.2 is consistent as regards seeing the three accused run away from the spot where the deceased lay murdered with the burchha. On this, there is no inconsistency. As regards the motive for the crime also there appears to be no inconsistency elicited from the cross-examination of either P.W.2 or P.W.10. In the circumstances, the Court is of the considered view that one line in the statement of P.W.2 in her examination- in-chief that she actually saw the three accused assaulting her brother with a bhujali, (which she explained was a burchha), need not result in the remaining part of her testimony to be discarded. That remaining part is admissible and reliable.

18. Even if P.Ws.3 and 6 turned hostile, P.W.4 clearly stated that when he reached the spot and noticed the dead body of the deceased in a pool of blood, the informant and P.Ws.1 and 2 told him that the deceased had been killed by the accused. This was soon after the event even before removal of the dead body. This too was admissible in evidence by applying the rule under Section 6 of the Evidence Act. Illustration (a) to Section 6 of the Evidence Act explains the concept of relevancy of facts forming part of the same transaction (res gestae). It envisages the scenario of A the accused beating B to death. "Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the same transaction, is a relevant fact." The

said provision has been applied in similar situations as the case on hand. In Shyam Nandan Singh v. State of Bihar 1991 Cri LJ 3350 it was held that a statement by the informant to other witnesses after the occurrence formed part of the same transaction and was relevant. Again, in Chander Singh Chamar v. State of Madhya Pradesh 2007 Cri LJ 4003, the statement by one witness to two others that the accused had killed the deceased with an axe was held admissible as res gestae.

19. The fact that the three accused were seen last going away from the spot with a burchha/bhujali and this was spoken by the informant and P.W.2 to other witnesses makes it a compelling circumstance against the accused. Their arrest and the subsequent recovery is made, at their instance, of the weapons of offence was adequately proved by the prosecution in the deposition of P.W.10. The death was homicidal as has been spoken of by P.W.11, who on conducting the PM, found three external injuries on the face and the head. There was a facture of skull bone due to the penetrating injury over the frontal bone. The brain materials were distorted and protruded. The cause of death was due to haemorrhage and shock, as a result of deep penetrating injuries over the head.

20. The Court is satisfied that the above circumstances form a continuous chain and point unerringly to the involvement of the three accused and to no one else. They satisfy the essential ingredients in respect of a case based on circumstantial evidence

as explained by the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 as under:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793, where the following observations were made: [SCC p.807, para 19: SCC (Cri) p. 1047]

'19..... Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions.'

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent

with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

21. For all of the aforementioned reasons, the Court is of the view that no error has been committed by the trial Court in convicting the Appellants and sentencing them in the manner indicated hereinbefore.

22. The appeal is accordingly dismissed. The bail bonds of the Appellants are hereby cancelled and they are directed to surrender forthwith and, in any event, not later than 20th September, 2022 failing which the IIC concerned will take steps to take them into custody to serve out the remainder of their sentence.

(S. Muralidhar) Chief Justice

(Chittaranjan Dash) Judge M. Panda