Orissa High Court
Jipa Bindhani @ Kanhu vs State Of Odisha on 4 December, 2023
Bench: D.Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.256 of 2019
AND
CRLA No.257 of 2019
In the matter of Appeals under section 374 (2) of the Code
of Criminal Procedure, 1973 and from the judgment of conviction
and order of sentence dated 29th March, 2019 passed by the
learned 1st Additional Sessions Judge, Baripada in S.T. Case
No.185 of 2016.
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Jipa Bindhani @ Kanhu .... Appellants
(In CRLA No.256 of 2019)
Rabindra Bindhani
(In CRLA No.257 of 2019)
-versus-
State of Odisha
(In both CRLAs) .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - M/s. P. C. Jena, P. C. Dash,
A. Mohanty. (Advocates)
For Respondent - Mr. S. K. Nayak,
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G. SATAPATHY
Date of Hearing :14.11.2023 : Date of Judgment: 04.12.2023
D.Dash,J. The above noted two Appeals have been filed by the
Appellants, challenging the judgment of conviction and the order
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of sentence dated 29.03.2019 passed by the learned 1st Additional
Sessions Judge, Baripada in S.T. Case No.185 of 2016, arising out
of G.R Case No.1451 of 2013, corresponding to Betnoti P.S. Case
No.154 of 2013 of the Court of learned Judicial Magistrate First
Class (JMFC), Betnoti.
The Appellants (accused persons) thereunder have been
convicted for committing the offence under section
452/302/307/34 of Indian Penal Code, 1860 (in short, 'the IPC').
Accordingly, they have been sentenced to undergo imprisonment
for life and pay fine of Rs.5000/- in default to undergo rigorous
imprisonment for six months; undergo rigorous imprisonment
for two years for the offence under section 452/34 of the IPC and
pay fine of Rs.1000/- in default to undergo rigorous imprisonment
for two months. The accused Rabindra Bindhani has been further
sentenced to undergo rigorous imprisonment for five years and
pay fine of Rs.1000/- and in default to undergo rigorous
imprisonment for two months for the offence under section
307/34 with the stipulation that the substantive sentences would
run concurrently.
2. Prosecution case:-
On 11.09.2013 around 9.45 p.m., accused Rabindra
Bindhani, who is the father-in-law of Dhaneswar Mohanta
(informant-P.W.18) came to the house of Dhaneswar with the
other accused, who happens to be his son, namely, Kanhu.
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Dhaneswar was present in the house with his parents, namely,
Rasbihari and Kousalya. Accused Rabindra coming to their
house, had some discussion with the parents of Dhaneswar for
some time and then he asked for some food. Kousalya, the
mother of Dhaneswar went to the kitchen to make arrangement
to serve the dinner to the accused persons. When she was making
the arrangement to serve the food; it is stated that the accused
Rabindra suddenly dealt two strokes from behind by means of a
Bhujali which he had kept concealed under his waist. Kousalya,
receiving such Bhujali blows, fell on the ground and started
crying "MARIGALI MARIGALI" and her husband Rasbihari
rushed down and then accused Kanhu caught hold of his hand
when Rabindra dealt four blows on him by that Bhujali. The
blows were given on the backside of the neck, left cheek and
throat. Rasbihari receiving such Bhujali blows, fell on the ground
and then Dhaneswar rushed to rescue him but accused Rabindra
again assaulted him on the upper portion of his eyelid and back
by means of that very Bhujali. Rasbihari with much difficulty
having come out of his house, fell down on the ground and there
he met an instantaneous death. Kousalya, having come out of the
house was taken to the hospital with the help of Bhupati (P.W.7).
Dhaneswar (P.W.18) on that very day around 11 p.m.,
lodged a written report (Ext.6) with the Inspector-in-Charge (IIC)
of Betnoti Police Station.
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Receiving the above report from the Informant (P.W.18), the
IIC (P.W.24) treated the same as FIR and took up the
investigation.
The I.O (P.W.24) in course of investigation examined the
Informant (P.W.18). On 12.09.2013 he examined other witnesses,
namely, Tapan Mohanta, Bharat Mohanta and Bijaya Mohanta
and seized one passenger DVS Auto and R.C. Book of the said
vehicle and prepared the seizure list vide Ext.5. He also examined
some witnesses to the seizure, namely, Rameswar Hembram and
Mahendranath Deo. On the same day at 9.45 a.m., he visited the
spot and prepared the spot map vide Ext.11 and there he
examined few other witnesses. He conducted inquest over the
dead body of the deceased Rasbihari and prepared the report
(Ext.1). The services of the scientific team consisting of the Finger
Print Sub-Inspector and the Photographer has been requisitioned
by the I.O (P.W.24). The I.O (P.W.24) also seized one polythene
packet containing blood stain earth and another polythene packet
containing sample earth, one polythene packet containing blood
stain knife and one spectacle from Finger Print Sub-Inspector
Pratap Chandra Nath, DCRB, Baripada. He sent the dead body of
the deceased Rasbihari Mohanta to ADMO, (M) DHH, Baripada
for post mortem examination. Then he proceeded to DHH,
Baripada to examine another injured Kausalya Mohanta, wife of
the deceased Rasbihari and issued injury requisition in favour of
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Kausalya Mohanta vide Ext.3/2. He seized the wearing apparels
of the deceased i.e. one grey colour Sambalpuri lungi stained
with blood, one yellow colour half banyan stained with blood,
one vial containing blood on production of constable Guru
Charan Mohapatra and prepared the seizure list vide Ext.9. On
15.09.2013, the I.O (P.W.24) examined the witnesses namely
Gobinda Mohanta and Narendra Mohanta. The seized articles
were sent to R.F.S.L., Balasore for chemical examination through
Court. On 26.10.2014, the I.O (P.W.24) on his transfer, handed
over the charge to Inspector Minati Biswal. The second I.O
(P.W.22) re-examined the informant and other witnesses and on
completion of investigation, the second I.O (P.W.22) submitted
the Final Form placing the accused to face the Trial for
commission of offence under section 452/302/30734 of the IPC.
3. Learned JMFC, Betnoti, receiving the Final Form as above,
took cognizance of the offences and after observing the
formalities committed the case to the Court of Sessions. That is
how the Trial commenced by framing charge for the said offence
against the accused persons.
4. In the Trial, the prosecution in total has examined twenty-
four (24) witnesses. As already stated, P.W.18, is the informant,
who is the son-in-law of the deceased and had lodged the FIR
(Ext.6) scribed by P.W.17 whereas P.W.5 is the wife of the
deceased. P.W.2 is the cousin of the Informant and nephew of the
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deceased. P.W.6, P.W.7, P.W.8 and P.W.11 are the post occurrence
witnesses. P.W.13 is the witness to the inquest. P.W.17 is the
scribe of the written report. The Doctor, who had medically
examined the injured is P.W.12 and the Doctor, who had
conducted autopsy over the dead body of the deceased Rasbihari
has been examined as P.W.21. The first I.O is P.W.24 whereas the
second I.O is P.W.22.
5. Besides leading the evidence by examining above the
witnesses, the prosecution has also proved several documents
which have been admitted in evidence and marked as Ext.1 to
Ext.14/1. Out of those, the important are the FIR, Ext.6, inquest
report, Ext.1, report prepared at the spot by finger print S.I Sri
Nath, Ext.2, injury report, Ext.4, seizure list, Ext.5, Post Mortem
Report, Ext.10, and the spot map, Ext.11. Some of the
incriminating articles having been produced during Trial, those
have been marked as Material Objects (M.O.-I to M.O.-VI) and
out of those, the important one is that knife (M.O.V)
6. The accused persons being called upon, have not tendered
any evidence in support of their plea of denial and false
implication.
7. Learned counsel for the Appellants (accused persons)
submitted that the prosecution case when is based on the
evidence of P.W.5 and P.W.18, who are said to be the two injured
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witnessed and the wife and son of the deceased as also related to
the accused Rabindra, in view of marriage of P.W.18 with the
daughter of accused Rabindra, those are required to be very
closely scrutinized which the Trial Court has not at all done and
just being swayed away by their statements that they were
injured in the incident, implicit reliance having been placed upon
their evidence without noticing the glaring infirmities appearing
therein. He, therefore, contends that the conviction has been
recorded against these accused persons for commission of all the
offences for which they stood charged is unsustainable. He
further inviting our attention to the deposition of P.W.5 and
P.W.18 and have pointed out as to how discrepant their evidence
is on material aspects of the case which we would discuss in the
later part of this judgment. He, therefore, submitted that the Trial
Court committed a grave error in holding the accused persons
guilty for commission of the offences. He also submitted that
even on the admitted facts and circumstances of the case as have
come out in evidence, accused Kanhu should not have been
convicted for the offences with the aid of section 34 of the IPC
when the principal assailant as has been said by the witnesses
was accused Rabindra.
8. Mr.S.K.Nayak, learned Additional Government Advocate
for the Respondent-State while supporting the finding of the guilt
against the accused as has been returned by the Trial court
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submitted that the evidence of P.W.5 and P.W.18 run at par with
one another and stand rock solid insofar as the roles of both the
accused persons in the house of the Informant are concerned. He
submitted that right from the beginning till the end, there is
absolutely no variance in the version of P.W.5 and P.W.18 and
their evidence rather appear to be quite natural with the response
being quite responsive leaving no such adverse conduct to be
viewed. He also submitted that in view of the specific role played
by accused Kanhu in directly facilitating accused Rabindra, who
is none other than his father in causing murderous assault upon
his father-in-law Rasbihari when it is the evidence htat both had
gone together, there is no option left but to hold accused Kanhu is
liable with the aid of section 34 of the IPC even though, as per the
prosecution case as per the evidence of P.W.5 and P.W.18, he had
not given the fatal blows upon the deceased.
9. Keeping in view the submissions made, we have carefully
read the judgment of conviction impugned in this Appeal. We
have also gone through the depositions of all the witnesses P.W.1
to P.W.24. We have also perused the documents which have been
admitted in evidence and marked Ext.1 to Ext.14/1.
10. In order to address the rival submission and thereby judge
the sustainability of the finding of the Trial Court in holding both
the accused persons guilty for having committed the offences as
aforesaid, it be first taken note of that both P.W.5 and P.W.18
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have been cited from the prosecution as the injured witnesses and
thus they two are also the victims on their own standing besides
being the wife and son of deceased Rasbihari.
The Doctor (P.W.12) having examined Kausalya (P.W.5)
had noted in the injury report and stated during his examination
in Court that she was having severe bleeding cut wound of the
magnitude of 5 ½ x 1 ½ which is quite significant when it is said
that the underline survical spine was visible and pulpable. It is
the evidence of P.W.12 that the injury was not only grievous in
nature but also was by means of a sharp cutting weapon when
the prosecution case from the beginning is that the injury was
caused by Bhujali. He has also examined Dhaneswar Mohanta
(P.W.18) and has noted one lacerated injury of size of 1 x ½ x ¼
over right eye brow the injury. As per the evidence of P.W.12 was
simple in nature. He has clearly denied the suggestion of the
defence that the injury noted in respect of P.W.5 was possible by
falling on broken glass when he has stated that injury received by
P.W.18 was possible if a person gets dashed against door or
window about which we find no indication either from the
evidence of P.W.18 or P.W.5. Thus looking at the size of the
injury, their size, seat and nature of the injury received by P.w.5,
it would be next to impossible to even think for a moment that
the same could have been a self inflicted one or by reason of
accident or otherwise. Even though the nature of injury sustained
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by P.W.18 is simple in nature, looking at its seat, it is also
extremely impossible to take a remote view that such was a self
inflicted one and for the purpose of providing strength to his
evidence.
It be also stated at the stage that there is no challenge to the
evidence of the Doctor (P.W.12), who had conducted post
mortem examination over the dead body of the deceased
Rasbihari either before the Trial Court or before us. It has been
stated by the Doctor (P.W.21) that conducting the post mortem
examination, he had found six nos. of incise injuries over the
dead body of Rasbihari which are as follows:-
"i. One incised injury of the left side of the face running
obliquely starting just below the middle of lower lip up
to 2 cm away from the outer angle of left eye of length
14 c.m. breath 1 c.m. depth 3 cm.
ii. One incised injury in the left side of neck along
the line of mandible running obliquely going upwards
of the face of length 10 cm, breadth 1 cm, depth ½ cm.
iii. One incised injury on the neck at thyroid cartilage
level going obliquely up to the left ear lobule length 15
cm, breath 1.5 cm, depth 3 cm exposing thyroid
cartilage and cutting of superior thyroid arteries and
veins.
iv. One incised injury on the left side of neck just
below the injury no.3 starting from midline running
obliquely up to the left mastoid process tip of len 15cm,
depth 1 cm below and 3 cm upper part, breadth 3 cm
below 5 cm upper part cutting the posterior group of
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muscle above with lacerations on the transverse process
of first and second vertebrae with cutting of vertebral
arteries, internal carotid , artery and external jugular
vein and exposing of an cutting of sternocleidomastoid
muscle below.
v. Incised injury of left pinna above ear lobule of
length 2 cm, breadth ½ cm, depth whole cartilage.
11. As per the evidence of P.W.21, the death was on account of
haemorrhage and shock due to the injury on the blood vessel of
the neck and neck structure, might be due to sharp cutting object.
Interestingly, during cross-examination, it has been brought out
that with the knife, such injuries were possible and the gravity of
one of such injury having been very much highlighted during
cross-examination, we are at a loss to understand the implication
of the same in which way favourable to the defence. The
prosecution having proved the death of Rasbihari to be homicidal
in nature through the evidence of P.W.21, it is also found that it
has been established through the evidence of P.W.6 that P.W.5
and P.W.18 had received the injuries almost during the time of
the incident as has been deposed by the Doctor as regards the age
of the injuries over and above the evidence of P.W.5 and P.W.18
to that effect.
12. Coming to the question as to the complicity of these
accused persons how far has been established through the
evidence let in by the prosecution, straightway, proceeding to
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examine the evidence of P.W.5, we find her to have stated that
both the accused persons came to their house and suggested for a
compromise in relation to the matrimonial dispute between her
son Dhaneswar (P.W.18) and the daughter of accused Rabindra,
namely, Kamala. Her further evidence is that after having
discussion for some time with regard to the case lodged by
Kamala, he asked to be provided with some food. Therefore, her
husband (Rasbihari) asked her (P.W.5) to serve food to them and
accordingly, she went to the kitchen. It is next stated that when
she was preparing to serve food, all of a sudden from behind
accused Rabindra came and assaulted her by means of a knife on
the backside of her neck which led her to fall sustaining severe
bleeding injury. She has further narrated that soon thereafter,
accused Kanhu caught hold of her husband Rasbihari and
thereafter accused Rabindra assaulted him by means of a knife
causing injuries on his neck, face and other parts of the body
which is hinted by her to have been the result of several blows
and certainly not one. It is also been stated that thereafter her son
P.W.18, was also assaulted by that bhujali (knife) being given
with two blows. The response of the witness is that she rushed to
the house of her brothers who used to stay in the same village
and they had also come to their house. The witness being asked
has asserted during cross-examination that she (P.W.5), her
husband (deceased) and son (P.W.18) were very much present in
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their house at the relevant time in further narrating that her
husband (deceased) and son (P.W.18) were watching television
when accused persons came and held discussion with her
husband, namely, Rasbihari (deceased). She has also gone to
narrate something about which was discussed in compromise.
She has reiterated that when she went to the kitchen to serve
food, her husband and son (P.W.18) were sitting on the veranda
but the accused persons followed her to the kitchen and there
accused Rabindra assaulted her from backside giving knife blows
for which she raised hullah "MARIGALI MARIGALI". She has
also gone to state during cross-examination that when she raised
shout, her husband immediately arrived. The cross-examination
appears to have not at all been directed to bring out any such
material to create doubt in the mind as regards she being not the
ocular witness or even that she was exaggerating something as
regards the role of the accused persons while suppressing
something. We find absolutely no such remote reason to entertain
doubt in mind as regards the veracity of the evidence of P.W.5,
being a housewife and an injured witness hailing from rural
background have stated all in great detail and whatever had been
omitted and left blank to be commented upon appears to have
been filled up during cross-examination.
13. With the above obtained evidence of P.W.5 as afore-
discussed when we come to the evidence of P.W.18, the other
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injured, who is the son of P.W.5 and the deceased and the
informant, who had lodged FIR (Ext.6), we first of all find the FIR
version to be quite consistent with the evidence of P.W.5, which is
the evidence of P.W.18 that the accused persons had gone to their
house during that time on the relevant date for settlement of the
dispute that was going on between him and the daughter of
accused Rabindra and sister of accused Kanhu and thereafter
asking her mother (P.W.5) to provide food how she was assaulted
by accused Rabindra from the backside all of a sudden. It has
been stated that Rabindra gave bhujali blows on the backside of
his mother causing bleeding injury leading to her fall and when
his father Rasbihari came to rescue, his mother Kausalya (P.W.5);
he was assaulted by means of that Bhujali on the back side and
front side of the cheek after he was restrained by accused Kanhu
holding his hands. Important statement of this witness is that
when he went to rescue his father, he too was assaulted by
accused Rabindra by means of that Bhujali causing bleeding
injury on his right side on the front and back, which is finding
support from the evidence of the Doctor (P.W.12), who had
medically examined him on police requisition. In paragraph 9
during cross-examination, the witness has further described
about the incident that when the accused persons arrived at their
house, he and his parents were in the veranda of their house
which is the evidence of P.W.5. It has also been stated that except
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them, no other person was present. He has gone to say about the
discussion being held for 5-7 minutes and then her mother going
to kitchen for making arrangement to serve the dinner to the
accused persons. He appears to have truthfully stated without
exaggeration that when he arrived at the spot that means in the
kitchen, assault on his mother was over and then when Accused
Kanhu caught hold of his father from his backside, accused
Rabindra assaulted him by standing in front of him by giving two
to three blows by that sharp side of the bhujali, which derives due
corroboration from the Doctor (P.W.21), who had held autopsy
over the dead body of Rasbihari. Almost, immediately after the
incident and rather almost simultaneously the FIR has been
lodged by P.W.18. We also find that the matter has been told to
others when P.W.6, the brother of P.W.5 and maternal uncle of
P.W.18, has supported the version of P.W.5 as to what she told
before him and what he himself saw on arriving at the house of
P.W.5. P.W.7 has also stated to have seen P.W.5 arriving in their
house with bleeding injury on her neck. The other bother of
P.W.5 i.e P.W.8 has stated in the same vein.
14. For the discussion of the evidence as aforesaid, we find that
the prosecution has established the charges against the accused
persons beyond reasonable doubt and therefore, the Trial Court is
found to have rightly convicted the accused persons for the
offences as afore-stated and the sentence imposed thereunder
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according to us commensurate the crime as established through
clear, cogent and acceptable evidence.
15. In the result, the Appeal stands dismissed. The judgment of
conviction and order of sentence dated 29th March, 2019 passed
by the learned 1st Additional Sessions Judge, Baripada in S.T.
Case No.185 of 2016 are hereby confirmed.
(D. Dash),
Judge.
G. Satapathy, J. I agree.
(G. Satapathy),
Judge.
Gitanjali
