Narayan Behera vs State Of Odisha
2023 Latest Caselaw 10151 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                        CRLA No.409 of 2016

        In the matter of an Appeal under Section 374 of the Code of
  Criminal Procedure, 1973 and from the judgment of conviction
  and the order of sentence dated 24th June, 2016 passed by the
  learned Additional Sessions Judge, Bonai, in Sessions Trial
  No.136/231 of 2013.
                                     ----

      Narayan Behera                           ....        Appellant

                                 -versus-

      State of Odisha                          ....       Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

              For Appellant      -        Mr.S.K. Dwibedi
                                          (Advocate as Amicus Curiae)

              For Respondent -            Mr.Sonak Mishra,
                                          Additional Standing Counsel
  CORAM:
  MR. JUSTICE D.DASH
  DR. JUSTICE S.K. PANIGRAHI

  Date of Hearing : 23.08.2023        :     Date of Judgment: 28.08.2023

D.Dash,J.     The Appellant, by filing this Appeal, has called in

question the judgment of conviction and the order of sentence

dated 24the June, 2016 passed by the learned Additional Sessions

Judge, Bonai, in Sessions Trial No.136/231 of 2013 arising out of

G.R. Case No.60 of 2013 corresponding to Mahulipada P.S. Case

CRLA No.409 of 2016

No.4 of 2013 of the Court of the learned Sub-Divisional Judicial

Magistrate (S.D.J.M.), Bonai.

The Appellant (accused) thereunder has been convicted for

committing the offence under section 302/506 of the Indian Penal

Code, 1860 (for short, 8the IPC9). Accordingly, he has been

sentenced to undergo imprisonment for life and pay fine of

Rs.10,000/- (Rupees Ten Thousand) in default to undergo

rigorous imprisonment for six (6) months for commission of the

offence under section 302 of the IPC and undergo rigorous

imprisonment of one (1) year for commission of the office under

section 506 of the IPC with the stipulation that the substantive

sentences would run concurrently.

2. Prosecution Case:-

On 15.02.2023 at about 8.00 a.m., one Ullas Behera

(informant-P.W.1) presented a written report (Ext.1) with the

Officer-in-Charge (OIC) of Mahulipada Police Station to the effect

that in the previous night, despite their protest, his son-in-law

(accused) had assaulted his daughter Kamalini (deceased) to

death and thereafter, the accused, having threatened them, had

left the house. It has also been indicated therein that the accused

committed the murder of his wife (daughter of the informant)

suspecting her character. The OIC (P.W.15) having received the

above written report from the informant (P.W.1), treated the same

as FIR (Ext.1) and registering the case, took up investigation.

CRLA No.409 of 2016

3. In course of investigation, the Investigating Officer (I.O.-

P.W.15) examined the informant (P.W.1) and other witnesses.

Proceeding to the spot, he (P.W.15) prepared the spot map

(Ext.10). He held inquest over the dead body of the deceased and

prepared his report (Ext.2). He also seized the incriminating

articles at the spot and then sent the dead body for post mortem

examination by issuing necessary requisition. Ther accused

thereafter being apprehended was forwarded in custody to

Court. On completion of the investigation, the I.O. (P.W.15)

submitted the Final Form placing the accused to face the Trial for

commission of the offences under section 302/506 of the IPC.

4. Learned S.D.J.M., Bonai, on receipt of the Final Form, took

cognizance of said offences and after observing the formalities,

committed the case to the Court of Sessions. That is how the Trial

commenced by framing the charge for the aforesaid offence

against the accused.

5. The prosecution, in support of its case, has examined in

total sixteen (16) witnesses during Trial. As already stated, the

informant, who lodged the written report (Ext.1) is P.W.1 and

P.Ws.2, 6, 7 & 18 are the family members of P.W.1 and she is the

mother-in-law of the accused and mother of the deceased. The

witnesses to the occurrence are P.Ws.8, 9 & 10. The Doctor, who

conducted the post mortem examination over the dead body of

CRLA No.409 of 2016

the deceased has come to the witness box asP.W.14 whereas the

I.Os are P.Ws.15 & 16.

Besides leading the evidence by examining the above

witnesses, the prosecution has also proved several documents

which have been admitted in evidence and marked Exts.1 to 12.

Important of those, are the FIR (Ext.1); inquest report (Ext.2); post

mortem report (Ext.7); and the spot map (Ext.10).

6. The case of the defence is that of complete denial and false

implication. The accused, however, has not tendered any

evidence in support of his defence when called uupo.

7. The Trial Court, upon detail examination of the evidence of

the prosecution witnesses and their evaluation, has arrived at a

conclusion that the prosecution has been able to bring home the

charges against the accused beyond reasonable doubt.

8. The Doctor (P.W.14), who had conducted the post mortem

examination over the dead body of the deceased, has been

examined as P.W.14. He has stated to have noticed incised

wounds on the right angle of mandible of size 1.5 c.m. X 1 c.m. X

1 c.m., below pinna and back side of neck at three places as also

on the left humerus and dorsal aspect of lateral side of right hand.

On dissection, he has found a facture on C-4 vertebra. As per his

evidence, these injuries are ante mortem in nature and might

have been caused by sharp cutting weapon. He has stated the

CRLA No.409 of 2016

probable cause of death to be shock and hemorrhage. Save and

except this P.W.14, being thrown with the suggestion from the

side of the defence that he has not properly conducted the post

mortem examination, which he has denied, no further attempt is

seen to have been made to impeach his evidence.

The I.O. (P.W.15), during inquest, has noted those injuries

in his report (Ext.2) when other witnesses including P.W.1 has

stated to have seen the deceased lying with injuries on his person.

In fact, this aspect of the case was not under challenge before the

Trial Court and that has also been the situation before us.

Keeping in view the evidence as afore-discussed, we are

completely in agreement with the view taken by the Trial Court

that Kamalini met a homicidal death.

9. Mr.S.K.Dwibedi, learned Amicus Curiae for the Appellant

(accused) submitted that the entire case of the prosecution here is

based on the evidence of P.W.1, who happens to be the informant

and mother-in-law of the accused, who had married her

daughter. He, therefore, submitted that this witness (P.W.1) is a

highly interested witness and, therefore, the Trial Court, without

critically examined her evidence, which bristle with the

contradictions and when the improbabilities are at galore, the

Trial Court has erroneously arrived at a conclusion that the

prosecution has proved the charges against the accused beyond

CRLA No.409 of 2016

reasonable doubt. He submitted that if the evidence of P.W.1 is

pushed beyond the arena of consideration, the other evidence on

record do not establish beyond reasonable doubt, the complicity

of this accused as the author of the injuries received by the

deceased leading to her death.

10. Mr.Sonak Mishra, learned Additional Standing Counsel for

the Respondent-State, while supporting the finding of guilt

against the accused, as has been rendered by the Trial Court, has

submitted that the evidence of P.W.1 is wholly trustworthy and

she, being the natural witness, when has deposed in a very

simple manner and as during cross-examination, no such

material has been elicited to discard her version, said solitary

testimony is enough to convict the accused for committing the

murder of his wife. He further submitted that with the rock solid

evidence of P.W.1, when the other evidence on record also

provide full corroboration, the Trial Court is right in convicting

the accused for committing the offence under section 302 of the

IPC.

11. Keeping in view the submissions made, we have carefully

gone through the impugned judgment of conviction. We have

also travelled through the depositions of the witnesses examined

from the side of the prosecution as P.Ws.1 to 16 and have perused

the documents admitted in evidence marked as Exts.1 to 12.

CRLA No.409 of 2016

12. In order to judge the sustainability of the finding of guilt of

the accused, as has been returned by the Trial Court, in

simultaneously addressing the rival submission, let us first of go

through the evidence of P.W.1.

As already stated, P.W.1 is the informant and had lodged

the written report (Ext.1). It has been stated in Ext.1 that the

accused had assaulted the deceased, who is his wife in the night

by means of an axe causing incised wound all over her body. She

has stated during trial that on the date of incident, she was in the

house of the accused and she saw the accused coming with a

tangia and dealing three blows on the neck of her daughter and

last one on the left hand of the daughter. She has stated that the

deceased, receiving those fatal injuries, succumbed to those at the

spot. It has also been deposed by him that the accused had chased

him to assault with that axe and, therefore, he ran away and took

shelter in the house of a Bhuyan man of their village in the night

where he divulged the incident. When we carefully travel

through the evidence of the witness, we find that practically there

has been no challenge to the evidence of this witness as to her

presence in the house of the accused during that night and to

have seen the accused assaulting his daughter in that night by

means of an axe. Merely because this witness is the mother of the

deceased, it is not at all permissible to say that her evidence is to

be doubted. We find absolutely no such infirmity in her evidence

CRLA No.409 of 2016

and nothing has also come to surface in exposing any such

feature/features as to improbability improbabilities.

P.W.2, who happens to be the uncle9s son of the deceased,

has stated that when getting the information, he went to the

place, he was told every detail as regards the happening of the

incident by P.W.1. This P.W.2 also has assertively stated that

P.W.1 then was very much present in the house. So, there remains

the immediately disclosure of the incident, more particularly as to

the role played and the act done by the accused.

P.W.6, who is the paternal uncle of the deceased, has also

stated that when getting the information, he came to the house of

the deceased, he was told about the incident by P.W.1 and

accordingly, he had scribed the FIR (Ext.1). This witness has

stated that by the time, the accused had left the spot, which again

provides corroboration to the evidence of P.W.1. It has also been

deposed by P.W.11 that his mother (P.W.1) had told him over

phone that the accused had caused murder of Kamalini. The

immediate disclosure of P.W.1 before other witness stand to

corroborate her evidence when those witnesses have so stated.

In view of the evidence, as afore-discussed, when nothing

substantial stands up to bulldoze their version given on oath as

regard to the role played and act done by the accused, we find all

the justification to confirm the judgment of conviction and order

of sentence impugned in this Appeal.

CRLA No.409 of 2016

13. In the result, the Appeal stands dismissed. The judgment of

conviction and the order of sentence dated 24th June, 2016 passed

by the learned Additional Sessions Judge, Bonai, in Sessions Trial

No.136/231 of 2013 are hereby confirmed.

(D. Dash), Judge.

Dr.S.K. Panigrahi, J. I Agree.

(Dr.S.K. Panigrahi), Judge.

Basu

Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 29-Aug-2023 14:14:45

CRLA No.409 of 2016