Rilly Dehury vs State Of Odisha
2023 Latest Caselaw 9076 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                           JCRLA No.42 of 2018

          In the matter of an Appeal under Section 383 of the Code of
    Criminal Procedure, 1973 and from the judgment of conviction
    and the order of sentence dated 27th February, 2018 passed by the
    learned Additional Sessions Judge, Talcher, in C.T.(S) Case
    No.103 of 2015.
                                       ----

         Rilly Dehury                           ....        Appellant


                                   -versus-

         State of Odisha                        ....       Respondent

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

                For Appellant      -        Mr.Chiranjib Rout
                                            (Advocate)

                For Respondent -            Mr.D.K.Mishra,
                                            Additional Government Advocate
    CORAM:
    MR. JUSTICE D.DASH
    DR. JUSTICE S.K. PANIGRAHI

    Date of Hearing : 07.08.2023        :     Date of Judgment:11.08.2023

D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has

called in question the judgment of conviction and the order of

sentence dated 27th February, 2018 passed by the learned

Additional Sessions Judge, Talcher, in C.T. (S) Case No.103 of

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2015 arising out of G.R. Case No.619 of 2015 corresponding to

Kaniha P.S. Case No.127 of 2015 of the Court of the learned Sub-

Divisional Judicial Magistrate (S.D.J.M.), Talcher.

The Appellant (accused) thereunder has been convicted for

committing the offence under section 302 of the Indian Penal

Code, 1860 (for short, 8the IPC9). Accordingly, she 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.

2. Prosecution Case:-

In the night of 30.07.2015, it was between midnight to 2.00

a.m., accused Rilly Dehury is said to have caused the death of her

husband Sriram Dehury (deceased) by means of a sharp cutting

weapon and one Thenga. Sriram Dehury9s daughter (P.W.1), who

was then around seven years old, was there in the house in the

relevant night and his son (P.W.12), then aged about thirteen

years, was working in a Dhaba, who came to the house in the

morning and found his father lying dead with injury. The

nephew of Sriram Dehury then lodged a written report with the

Officer-in-Charge (OIC), Kaniha Police Station (P.W.13).

Receiving the said written repot, the O.I.C. (P.W.13) treated the

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

investigation.

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3. In course of investigation, the I.O. (P.W.13) examined the

informant (P.W.2) and in the afternoon, went to the spot. She saw

the dead body of Sriram (deceased) lying on the verndah of the

house in a bleeding condition and persons to have gathered

around. She there examined the accused, who remained silent

and then examined the minor daughter of the deceased (P.W.1)

and recorded her statement. She also examined other witnesses;

held inquest over the dead body of the deceased and sent the

same for post mortem examination by issuing necessary

requisition. She prepared the spot map (Ext.14). She further

seized the blood stained earth and sample earth and wooden

block stained with blood from the spot under the seizure list

(Ext.6). She also seized other incriminating articles and then

arrested the accused on 01.08.2015 around 5.30 a.m. Then, it is

said that the accused gave his statement before the I.O. (P.W.13)

and told to have concealed the Paniki (Kitchen Knife) near the

bushes under the heap of garbage and stated that she would give

recovery of the same, if taken to that place. The statement, being

recorded by P.W.13, the accused is said to have led her (P.W.13)

and other witnesses to the place in giving recovery of that Paniki

(Kitchen Knife), which was seized under the seizure list (Ext.5).

The accused was forwarded in custody to the Court. The

incriminating articles were sent for chemical examination

through Court. Finally, on completion of the investigation, the

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I.O. (P.W.13) submitted the Final Form placing the accused to face

the Trial for commission of the offence under section 302 of the

IPC.

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

cognizance of said offence 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. In the Trial, the prosecution, in order to establish the charge

against accused, has examined in total sixteen (16) witnesses. Out

of them, as already stated, the Informant, who had lodged the

written report is P.W.2 and the witness, who had scribed the

written report, is P.W.16. The sister of the informant (P.W.2) is

P.W.1. Other independent witnesses are P.Ws.3, 4, 5 & 6. The

Doctor, who had conducted the autopsy over the dead body of

the deceased, has come to the witness box as P.W.7 and P.Ws.8, 9,

10 & 11 are the co-villagers. The son of the deceased has been

examined as P.W.12 whereas the I.O. has come to the witness box

as P.W.13.

6. 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 20.

Out of those, important are the FIR (Ext.1); inquest report (Ext.2);

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post mortem report (Ext.11); spot map (Ext.14) and the seizure

lists are Exts.3, 5, 6, 7 & 10.

7. The plea of the accused is that of complete denial and false

implication. The accused, being called upon, has, however, not

adduced any evidence in support of said plea.

8. The Doctor, who had conducted the autopsy over the dead

body of the deceased, has come to depose during Trial as P.W.7.

It is his evidence that he had noticed three cut injuries on the

posterior neck position, in the angle of mouth left side just above

mandible and fore brain left side as also on the face when another

cut injury on the right-side ear. He too had noticed a lacerated

injury on the leg, back and maxilla. A hematoma on the chest had

also been seen by P.W.7. As per his evidence, the death was on

account of spinal shock due to cut injury in neck and it was a

homicidal death. All these have been noted down by P.W.7 in his

report (Ext.11). The I.O. (P.W.13), who had held inquest over the

dead body of the deceased in presence of the witness has also in

the inquest report, noted the injuries to have been seen. Other

witnesses including P.Ws.2 & 3 have stated to have seen the

deceased lying dead with injuries. We find that the defence has

not challenged all said evidence during Trial and those are also

not being impeached in course of hearing of this Appeal. We too

also find that no cross-examination has been directed touching

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upon the evidence of P.W.7 as regards the nature of death of the

deceased to be homicidal. With such overwhelming evidence on

record, we concur with the view of the Trial Court that the

prosecution has proved the death of Sriram (deceased) to be

homicidal.

9. Mr.Chiranjib Rout, learned counsel for the Appellant

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

rests on the evidence of P.W.1, who is stated to be the solitary eye

witness to the occurrence, who is a child witness then aged about

seven years that too the daughter of the deceased. He submitted

that the Trial Court has not taken any such care as required under

law while analyzing the evidence of P.W.1, who is certainly a

witness interested in the success of the prosecution. He further

submitted that this P.W.1 has having stated that she, after taking

meal, had gone for sleep and woke up in the morning and,

therefore, as the incident had taken in the dead of night, she had

not seen the incident at all, which the Trial Court has ignored. He

further submitted that when the evidence of P.W.2 is liable to be

discarded, the other evidence available on record are not

sufficient to hold that the prosecution has established the charge

against the accused beyond reasonable doubt.

10. Mr.D.K.Mishra, learned Additional Government Advocate

for the Respondent-State, while supporting the finding of guilt

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against he accused, as has been returned by the Trial Court, has

submitted that the evidence of solitary eye witness (P.W.1), has

rightly been relied upon by the Trial Court in basing the

conviction. He further submitted that the above referred

statement of P.W.1 upon which emphasis is given by the learned

counsel for the Appellant (accused) 2 is not to be read in isolation

and when the entire evidence of P.W.2 is read in its entirety, that

statement loses its significance to be so taken note for discarding

her version by pushing beyond the arena of consideration. He

further submitted that when the prosecution evidence is clear

that the accused and the deceased were then in the house and

that P.W.1, who is none other than the minor daughter of the

deceased, as the accused is not providing any explanation as to

what happened to the deceased that he received all such fatal

injuries on vital part of his body, which was within her special

knowledge, the prosecution case in that way also stands

established.

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 (P.Ws.1 to 16) and have perused

the documents admitted in evidence marked as Exts.1 to 20.

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

Trial Court holding the accused to be author of the injuries

resulting the death of Sriram (deceased), let us first of all examine

the evidence of P.W.1. She is none other than the daughter of the

deceased and she, being then aged about seven (7) years, was

addressing the accused as Mausi. It is the evidence of the brother

of P.W.1, i.e., P.W.12 that the accused is the second wife of her

father Sriram (deceased), i.e., his step mother and she was

residing in their house being so kept by his father as his own

mother had died. The Trial Court, tested the capability of this

witness (P.W.1) to depose in Court. Having put certain questions,

those have been noted in the depositions and the answers given,

have also been so reflected thereunder. The Trial Court has found

those answers to be rationable, and, therefore, has proceeded to

record her evidence. We find the exercise to be in consonance

with the settled principles. It is the evidence of P.W.1 that the

accused hacked her father by means of the Paniki (Kitchen Knife)

in the night when she was with her father and the present

accused (Mausi). It is also her evidence that her father was

requesting the accused to leave him and not to assault. She has

stated that the accused, after causing the injuries, covered a shawl

over her father and threatened her to assault in case she would

make any disclosure. She has also stated that on the next

morning, her brother (P.W.12), who was working in a Dhaba,

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arrived there after getting information. The witness, being cross-

examined, she has clearly stated to be sleeping with the accused

and the deceased in that night. It has been brought out in cross-

examination that except them, none-else was present in the

house. It has been stated by her that she had not come out of the

house to attend call of nature. Her statement that in the

occurrence night, after taking meal, she went for sleep and woke

up in the morning is being seriously pressed into service to

disbelieve her version as to have seen the incident. On the face of

her clear and assertive evidence that she was sleeping in the place

with the accused and the deceased and had seen the accused

causing injuries upon the deceased despite his request not to

proceed further, it is quite acceptable that when she has stated to

have woke up in the morning thereby she did not convey that she

had never woke up at point of any time during the night. The

evidence of P.W.1 receives the corroboration from the evidence of

P.W.11, who has stated that the accused is the second wife of the

deceased and he has also stated that the accused was residing

with the deceased. It is stated by P.W.11 that in the morning, a

person, had been to their house and found that the deceased did

not respond and then P.W.1 had told him that the accused had

committed the murder of her father. He further states to have

then gone to the house of the accused and there, P.W.1 also

disclosed about the incident in the night before him by further

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stating that the accused had threatened her not to disclose the

incident by saying that if she would do so, she would be

assaulted. We find that the said evidence of P.W.11 has not been

shaken.

In addition to this, we find that of P.W.1 has stated that in

the night, the accused, the deceased and she were sleeping in the

house when non-else was there. This P.W.1, being the minor

daughter of the deceased, the accused is not coming forward with

any sort of explanation as to what happened in the night that

Sriram received the injuries on his body and met a homicidal

death when such facts were within her special knowledge. With

the above foundational facts being proved from the side of the

prosecution, the burden of proof, having shifted on the shoulder

of the accused, the same remains unexplained by the accused

either by leading evidence or eliciting anything from the

prosecution witnesses. Thus the prosecution case in that way

even conceding for the sake of argument that P.W.1 had not seen

the actual incident as to how her father (deceased) received those

injuries, the authorship of the injuries are to be attributed to this

accused alone and none-else.

13. With the above available evidence on record, without going

to examine the evidence let in by the prosecution as regards the

recovery of the weapon at the instance of the accused, we are of

the considered view that the accused has been rightly convicted

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by the Trial Court for committing the offence of murder under

section 302 of the IPC in intentionally causing the death of Sriram

Dehury.

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

conviction and the order of sentence dated 27th February, 2018

passed by the learned Additional Sessions Judge, Talcher, in

C.T.(S) Case No.103 of 2015 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: 17-Aug-2023 16:49:27

JCRLA No.42 of 2018