Panchanan Behera vs State Of Odisha
2023 Latest Caselaw 15463 Ori

Orissa High Court

Panchanan Behera vs State Of Odisha on 4 December, 2023

Author: G. Satapathy

Bench: D. Dash, G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                       CRLA No.335 of 2013

  (An appeal U/S.374(2) of the Code of Criminal
  Procedure, 1973 against the judgment passed by Sri.
  Niranjan Sahu, Sessions Judge, Sonepur in Sessions
  Case No.47 of 2011 arising out of Birmaharajpur PS
  Case No.21 of 2011 corresponding to GR Case No. 37
  of 2011 and committed by SDJM, Birmaharajpur)

  Panchanan Behera                      ...           Appellant
                                 -versus-
  State of Odisha                       ...         Respondent

  For Appellant              :    Mr. S.S. Pratap, Advocate
  For Respondent             :    Mr. S.K. Nayak, AGA

       CORAM:
          HON'BLE MR. JUSTICE D. DASH
          HON'BLE MR. JUSTICE G. SATAPATHY

                      DATE OF HEARING :09.10.2023
                      DATE OF JUDGMENT:04.12.2023

G. Satapathy, J.

1. This appeal by the convict seeks to assail the

judgment of conviction and order of sentence passed on

14.03.2013 by learned Sessions Judge, Sonepur in

Sessions Case No.47 of 2011 convicting the appellant for

offences punishable U/Ss.450/364/302 of IPC and

sentencing him to undergo Rigorous Imprisonment (RI)

for three years with fine of Rs.1,000/- in default whereof,

to undergo further RI for two months for offence U/S.450

of IPC, to undergo RI for five years with fine of

Rs.1,000/- in default whereof, to undergo further RI for

two months for offence U/S.364 of IPC and to undergo RI

for life with fine of Rs.2,000/- in default whereof, to

undergo RI for four months for offence U/S.302 of IPC

with stipulation of substantive sentence to run

concurrently and the pre trial detention be set off as per

law.

An overview of prosecution case

2. One Mathura Luha @ Bhumisuta Behera was

the wife of convict and their marriage was solemnized

around four years before the lodging of FIR and they

were blessed with a son namely Padmanava (hereinafter

referred to as the "deceased"), but due to some conjugal

misunderstanding and matrimonial dissension, PW2-

Mathura Luha @ Bhumisuta Behera was staying in her

parental house with her son around six to seven months

before lodging of FIR. While the matter stood thus, on the

intervening night of 9/10.03.2011, PW2 and her son aged

about two years were sleeping on the verandah of the

house. At about 12 midnight to 1 AM, the convict

suddenly appeared there and forcibly took away the

deceased by snatching from her mother, as a result, PW2

chased him, but in vain and she, thereafter, raised

commotion and accordingly, PW3 and others came to the

spot and they searched for the deceased, but

unfortunately, the dead body of the deceased was found

floating in the village tank in the morning. Immediately

after the convict taking away the deceased, PWs.1 and 4,

the father and brother of PW2 who had been to village

Bisalpali to attend the marriage ceremony, were informed

over phone. Accordingly, they came and searched for the

deceased, but found the dead body of the deceased in the

village tank in the morning.

On this incident, PW1 lodged an FIR against the

convict before the IIC, Birmaharajpur, after getting the

FIR scribed by PW5 resulting in registration of

Birmaharajpur PS Case No.21 of 2011 with

commencement of investigation by IIC-PW9-Sangram

Keshari Behera, who in the course of investigation, visited

the spot, prepared the spot map under Ext.7, got the

post mortem over the dead body of the deceased-child

through PW6-Dr. Swapnesh Mishra and on completion of

investigation, PW9 submitted charge-sheet against the

convict for offence U/Ss.450/364/302 of IPC resulting in

trial in the present case after denial of the convict to the

charge.

3. In support of the charge, the prosecution

examined altogether nine witnesses P.Ws. 1 to 9 and

relied upon documents under Exts.1 to 8 and material

objects under MOI and II as against the sole oral

evidence of the convict himself as DW1 in his defence. Of

the witnesses examined for the prosecution, PW2 is the

mother of the deceased-cum-eye witness to the

snatching of the baby from her custody, PW1 is the

informant-father of PW2, whereas, PW4 is her brother,

PW3 is a post occurrence witness, whereas, PW5 is the

scribe. PW6 is the Doctor who had conducted post

mortem over the dead body. PWs.7 to 9 are the official

police witnesses.

4. After appreciating the evidence on record upon

hearing the parties, the learned Sessions Judge, Sonepur

by the impugned judgment convicted the appellant for

commission of offences punishable U/Ss.450/364/302 of

IPC by mainly relying upon the evidence of eye witness-

PW2 and taking into consideration the other evidence.

5. In the course of trial, the plea of the appellant-

convict was denial simpliciter and false implication.

Rival Submissions

6. In the course of hearing of the appeal, learned

counsel for the appellant has submitted that there were

discrepancies in the evidence of prosecution witnesses in

material particulars, but the learned trial Court has

ignored such discrepancies and erroneously appreciated

the evidence to convict the appellant. It is also submitted

by him that the sole eye witness to the snatching of the

baby in this case is PW2, but her evidence is shrouded

with suspicion and it would be unsafe to convict the

appellant solely on the testimony of PW2. It is also

submitted by him that the prosecution has not been able

to prove the motive and in such circumstance, the

evidence of the prosecution witnesses has to be assessed

carefully, but without directing itself to appreciate the

material evidence, the conviction of the appellant is

unsustainable and benefit of doubt must be extended to

the appellant. In summing up his argument, learned

counsel for the appellant has prayed to allow the appeal

by setting aside the impugned judgment of conviction

and order of sentence.

7. On the other hand, learned AGA has submitted

that although the learned trial Court has convicted the

appellant by mainly relying upon the evidence of PW2,

but there is no infirmity in conviction of the appellant and

law is also well settled that the evidence has to be

assessed not to be counted. It is further submitted by

him that conviction only on the sole testimony of eye

witness which has not been impeached by the defence

cannot be questioned in the appeal and in this case, the

prosecution has objectively established the guilt of the

appellant for the offences beyond all reasonable doubt

and thereby, the conviction of the appellant warrants no

interference in this appeal.

Analysis of law and evidence

8. A careful scrutiny and re-appreciation of

evidence on record keeping in view the rival submissions,

it appears that the learned trial Court has mainly relied

upon the evidence of eye witness PW2 to record a

conviction against the appellant, but in a case of

conviction of the offender for offence Under Section 302

of IPC, the nature and cause of death are primary

questions required to be determined at the threshold. It

would, therefore, be necessary to advert to the medical

evidence available on record to answer the above

questions. It is transpired from the evidence of Doctor-

PW6 that the deceased was a male child of two years with

multiple bruise simulating fingers over right side of neck

with crescentric abrasion simulating nail marks at the end

of each bruise, which were three in numbers and another

bruise simulating finger in print over left side of neck and

one laceration at the end of bruise below left ear

simulating nail mark. PW6 has also opined that the cause

of death may be due to asphyxia following manual

strangulation. Although, the defence had tried to make

some dent in the medical evidence, but it was unable to

impeach the evidence of the Doctor and the defence had

only ended up by eliciting in the cross examination that

barring the neck portion of the dead body, he had not

noticed any other external injuries on other parts of the

body and if a human body dead or alive is thrown inside

water, it will come out and float after 24 hours when

decomposition occurs, but in the instant case, he had not

noticed any decomposition of the dead body. It is,

therefore, clear that the death of the deceased-child was

due to strangulation, which cannot be said to be normal

process. Albeit, the appellant by relying the above

evidence of PW6 challenges the evidence of PW4 to be

unreliable since the testimony of later discloses about

finding of dead body floating in the water, but no material

or evidence brought on record by the defence to

disbelieve the cause of death of the deceased which was

opined to be on account of manual strangulation and the

same remains unchallenged. Besides, minor contradiction

and exaggeration which do not affect the main

substratum of the case, occurs in case of truthful witness

and PW4 is not an exception to it.

9. Thus, the prosecution is found to have

established that the death was on account of

strangulation, which remains unchallenged and therefore,

who had strangulated the deceased is the next question

to be determined. Admittedly, there appears no direct

evidence to indicate as to who had strangulated the

deceased. However, the deceased was in the company of

his mother, when the appellant forcibly snatched away as

evident from the evidence of PW2, who is the mother of

the deceased and her evidence transpired that her

husband was frequently quarreling with her after

marriage and when it became intolerable, she was

compelled to leave her matrimonial house and had taken

shelter in her parental house along with her son

Padmanava (deceased) and on the relevant day of

occurrence in the midnight in between 12 to 1 AM, the

convict forcibly took away the deceased from her lap

while they were sleeping and they had chased the

convict, but could not rescue her son from clutches of the

appellant-convict. Learned counsel for the appellant,

however, has submitted that it would not be safe to rely

upon the evidence of PW2, but there is absolutely no

reason or any proposition that the evidence of mother

cannot be believed. On the other hand, the appellant-

convict has not clarified as to why the evidence of the

mother of the deceased would be disbelieved. It is quite

unnatural for a mother to depose against a person for the

death of her dearest child leaving the real culprit because

mother is the person, who in this world would never

become selfish, when the matter of her son will come.

The defence had, of course, tried to demolish the

evidence of the mother PW2 in the cross examination, but

nothing fruitful benefitting the defence was elicited in her

cross-examination, rather her cross examination lends

assurance to her evidence in Chief, especially when it was

elicited from her mouth that he tried to snatch away her

son from the clutches of the appellant, but could not

manage to do so and she shouted for help and she

chased the appellant-convict for about 50 meters to get

back her son from him by raising hullah. These are the

quite natural phenomena, because if a lady would face

such a situation, she would definitely try to rescue as well

as raise hullah.

10. Adverting to other evidence, it appears that the

evidence of PW3 may not be direct evidence, but her

evidence to the effect that on hearing the commotion of

PW2, she reached to the spot and came to know about

the appellant-convict taking away the deceased, which is

also in the line of the evidence of PW2. On careful

scrutiny of the evidence of PWs 1 & 4, it also lends

assurance to the evidence of PW2 inasmuch as it appears

from the evidence of PWs.1 and 4 that on the fateful

night, they had gone outside of the village to attend a

marriage ceremony and they were contacted over phone

for the occurrence of appellant taking away the deceased

and they had immediately came back to their village,

which is quite natural conduct of such persons. It is also

transpired from the evidence of PW1 that after reaching

the village which was in the early morning, his wife and

daughter again disclosed the aforesaid facts before them

and he tried to trace out the deceased and search for him

in the entire village, but could not trace him out. The

evidence of PW1 further transpires that he had moved to

PS to submit FIR to the police, but Rukuni Jagdala of their

village informed to his wife and daughter in the house,

then one Jhadu Mistri told that the deceased is floating in

the tank "Sakuntala Bandha" of their village. Similarly, is

the evidence of PW4. However, there appears some

amount of discrepancies in the evidence of PWs.1 and 4

with regard to lodging of FIR before or after the recovery

of the dead body, but that does not assume significance

in the circumstance, when the evidence of PW2 disclosing

the appellant-convict to have snatched away the

deceased had remained unchallenged and unimpeached

and the appellant had failed to explain as to how the

deceased was found floating in the tank after four to five

hours of his taking away the deceased, which supply

additional circumstance/link when he answered to this

question as asked to him in Section 313 of Cr.P.C. by

simply saying "false", which in fact strengthen the

prosecution case.

11. On cumulative assessment of evidence on

record, it is found that the prosecution has established

the fact that the appellant had forcibly taken away the

deceased from the lap of his mother and four to five

hours thereafter, the dead body of the deceased was

found recovered from the village tank namely "Sakuntala

Bandha" and, thereby, the prosecution has objectively

established the case against the appellant for offences

U/Ss.450/364/302 of IPC beyond all reasonable doubt.

Consequently, no ground is made out to interfere with

the impugned judgment of conviction. Since the appellant

was found convicted for a diabolical crime of killing his

own child, no circumstance arises to consider the act of

the appellant to alter his conviction for Section 304 of

IPC.

12. In the result, the criminal appeal is hereby

dismissed. Consequently, the impugned judgment of

conviction and order of sentence as recorded on

14.03.2013 by the learned Sessions Judge, Sonepur in

Sessions Case No.47 of 2011 are hereby confirmed.

(G. Satapathy) Judge

I Agree

(D.Dash) Judge

Signature NotOrissa High Court, Cuttack, Verified Dated the 4th day of December, 2023/Subhasmita Digitally Signed Signed by: SUBHASMITA DAS Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 05-Dec-2023 17:57:51