Dillip Kumar Behera And Others vs State Of Orissa
2023 Latest Caselaw 7433 Ori

   IN THE HIGH COURT OF ORISSA AT CUTTACK

                      CRLA No. 67 of 2007

Dillip Kumar Behera and others              ....            Appellants

                                -versus-
State of Orissa                             ....           Respondent

Advocates appeared in the cases:

For Appellants              :                  Mr. Syed Danish Masih,
                                                            Advocate

For Respondent              :                      Mr. Rajesh Tripathy
                                           Additional Standing Counsel

 CORAM:
 THE CHIEF JUSTICE
 JUSTICE G. SATAPATHY

                           JUDGMENT

06.07.2023 Dr. S. Muralidhar, CJ.

1. The present appeal is directed against the judgment dated 12th January, 2007 passed by the Adhoc Additional Sessions Judge (F.T.), Champua in S.T. Case No.76/131 of 2004-03 convicting the Appellants for the offence punishable under Section 302 read with Section 34 of Indian Penal Code (IPC) and sentencing them to undergo Rigorous Imprisonment (RI) for life and to pay a fine of Rs.5,000/- and in default to undergo RI for one year.

2. There are three Appellants, i.e., Appellant No.1 is Dillip Kumar Behera (Accused No.1 - A-1), Appellant No.2 is his elder brother

Chintamani Behera (A-2) and Appellant No.3 is their mother Ghasa @ Ghasan Behera (A-3).

3. It requires to be noted that A-3 was enlarged on bail by an order dated 18th March, 2008 by this Court. As far as A-1 and A-2 are concerned, they were enlarged on bail by an order dated 29th April, 2014 by this Court.

4. According to the prosecution, on 22nd March, 2003 at around 12 noon, the three accused obstructed the passage near the shop house of Jayatri Behera (the deceased). She had three sons, two of whom were Ghasinath Behera (PW-1) and his younger brother Dasaratha Behera (PW-2). Both PWs 1 and 2 consistently deposed that when their mother (the deceased) protested against the accused blocking the road from their shop house towards the main village road by putting bricks, the three accused assaulted her with a Bhujali, crowbar and paniki. The accused are stated to have thrown chilly-powder and hot oil on the deceased. As a result of the assault, the deceased sustained bleeding injuries and burn injuries. When PW-1 along with others tried to rescue the deceased, A-1 threatened him on the point of the Bhujali that he was wielding. According to PW-2, the accused also threw chilly- powder on his eyes, as a result of which he could not rescue his mother. He stated that A-2 assaulted on his head with an iron rod. PW-1 thereafter informed the police and lodged an FIR.

5. The investigation was undertaken by Sylverias Topo (PW-7), who was the Officer-in-Charge (OIC) of the Champua PS. He examined PW-1, visited the spot, prepared the spot map and also

held inquest over the dead body of the deceased. He then sent the dead body to the S.D. Hospital, Champua for postmortem. Then he seized the blood-stained earth and sample earth from the spot. He issued an injury requisition in favour of PW-2 and his wife, Chandamani Behera (PW-3), for examining them in the S.D. Hospital where they were undergoing treatment.

6. According to PW-7, he seized the Bhujali (MO-I) from A-1 in the presence of witnesses and prepared a seizure list. He arrested A-1 on 23rd March, 2003. He seized A-1's wearing apparels upon A-1 producing the same, i.e., a banyan having green coloured with white stripes and one ash coloured full pant and prepared the seizure list. On 26th June, 2003 he arrested A-2. On 16th July, 2003 a charge sheet was submitted against the three accused for the offences punishable under Sections 302, 341 and 323 read with Section 34 IPC. A-3 was shown as an absconder.

7. On behalf of the prosecution, seven witnesses were examined and on behalf of the defence, one Kirtan Behera (DW-1) was examined.

8. PWs 1 and 2 were the sons of the deceased. PW-3 is the wife of PW-2. PW-4, Premalata Behera is the wife of another son of the deceased, Binod Behera. PWs 1 to 4 were the eye-witnesses to the occurrence. PW-5 Budhiram Behera was an independent witness, but turned hostile.

9. Dr. Prakash Chandra Pradhan (PW-6) conducted the postmortem on the dead body of the deceased. He noticed the following injuries:

"(i) Blood with clots on nostril and mouth;

(ii) Incised wound over the right elbow joint penetrating the head of radius and olecranon process of ulna of size 3"x2 ½"x2 ½";

(iii) Incised wound over the posterior aspect of right forearm of size 2 ½"x1/2";

(iv) Incised wound over the anterior abdominal wall of 2"x1/2"x4" depth (two in numbers one inch apart from each other);

(v) Incised wound on the left shoulder joint of size 2 ½"x1"x2" depth;

(vi) Incised wound on the left loin penetrating and injuring the left kidney of size 2"x2";

(vii) Lacerated injury over the scalp and frontal region, corresponding meninges are congested with clot present in the frontal lobe of the brain."

10. According to PW-6, all the aforementioned injuries were ante- mortem. Except Injury (vii), they were all possible by a sharp cutting weapon, whereas Injury (vii) was possible by a hard and blunt weapon. The opinion of PW-6 was that the death of the deceased was due to haemorrhage and shock caused by the above injuries. PW-6 stated how on 10th July, 2003 the police had sent to him the Bhujali (MO-I) that was seized from A-1. PW-6 opined that the above injuries could be caused by the said MO-I. PW-6 also examined PW-2 and noted two lacerated injuries and one scratch. He examined PW-3 and noted one lacerated injury and one contusion.

11. In his cross-examination, PW-6 stated that he did not find any burn injury on the deceased. He stated that the injuries found on

PW-2 could be self-inflicted and those on PW-3 could be as a result of a fall.

12. PW-5, projected as an independent witness, turned hostile. He sought to suggest that it was PW-2 who assaulted his mother by a knife. PW-5 thus resiled from the statement made to the police in which he implicated the three accused. The deceased was the sister-in-law of PW-5. According to him, PW-2 was coming to assault A-1, when A-1 threw chilly-powder on the eyes of PWs-2, 3 and 4. According to PW-5, thereafter A-1 hid behind the deceased. PW-5 stated that after the occurrence, PW-3 snatched away MO-I from PW-2 and in that process, both PWs-2 and 3 sustained some injuries.

13. It is the version of PW-5 that was sought to be projected even by the defence witness DW-1. In other words, according to the defence, it was PW-2 who killed his mother.

14. The trial Court, on an analysis of the evidence, concluded as follows:

(i) There was no credible evidence to show that PW-3 was attacked by any of the accused.

(ii) The non-examination of some of the material witnesses named in the charge sheet did not weaken the case of the prosecution.

(iii) Although the eye-witnesses were also interested witnesses, no adverse inference could be drawn as they were clear, cogent, consistent and reliable. The other witnesses named in the charge sheet had been won over by the accused. The evidence of PWs-1

to 4 did not suffer from any material contradiction. The minor discrepancies and contradictions in their testimonies was but natural.

(iv) There was no dispute as to the genesis of the occurrence, namely, the construction of a wall by the accused persons on the passage.

(v) Although it was sought to be argued that there was contradiction between the occular and medical evidence, the trial Court noted that the defence had not asked a single question to the PWs in respect of the deceased suffering burn injuries. Therefore, it could not be said that the medical evidence contradicted to the occular evidence.

(vi) The defence had not disputed that MO-I was the weapon of offence, although they disputed its ownership. The defence plea that it was PW-2 who assaulted his mother, the deceased, was palpably false and not corroborated by any independent evidence.

15. The trial Court held that the prosecution had failed to prove the charges under Sections 341 and 323 read with Section 34 IPC against any of the accused persons. They were accordingly acquitted of the above offences. However, the trial Court opined that the prosecution had proved beyond all reasonable doubt the charge under Section 302 read with Section 34 IPC against all the three accused persons. They were each accordingly sentenced to imprisonment for life with a fine of Rs.5,000/- and in default to undergo RI for one year for the offence punishable under Section 302 read with 34 IPC.

16. This Court has heard the submissions of learned counsel for the parties. It has also examined the entire record.

17. At the outset, it requires to be noticed that although the prosecution sought to attribute to A-2 a crowbar with which he attacked the deceased and A-3, the mother of A-1 and A-2, with a paniki neither of the said weapons was seized from either of them. None of the witnesses PWs 1 to 4 have attributed overtly specific overt acts to A-2 and A-3 or their joining in the attack by A-1 on the deceased. While the Bhujali was seized from A-1 and sent for chemical examination and then shown to the doctor, in the case of A-2 and A-3, apart from the fact that there was no recovery of either the crowbar or the paniki there is no delineation of the precise role played by each of them in wielding those weapons. The said weapons were not shown to the doctor PW-6 and there was no correlation of the injuries on the deceased with those weapons. It was also not brought out through medical evidence that any chilly-powder was thrown on the face of the deceased or on PWs-2 and 3. Therefore, vis-à-vis A-2 and A-3 the medical evidence does not corroborate the eye witness testimonies of PWs 1 to 4.

18. This Court is not satisfied that the prosecution has been able to prove the case against A-2 and A-3 by cogent or credible evidence. While the injuries on the dead body of the deceased were clearly caused by a Bhujali, as per medical opinion, there was nothing to show that A-2 wielded the crowbar and attacked the deceased with the crowbar or that A-3 wielded the paniki and attacked the deceased with it. There is nothing to show that A-2

and A-3 had threw chilly-powder and hot oil on the deceased, as a result of which she got disoriented. In the circumstances, it is not clear whether A-2 and A-3 could be held to have shared a common intention with A-1 in killing the deceased. Consequently, the evidence as regards A-2 and A-3 does not quite square up.

19. Consequently, as far as Appellant Nos.2 and 3 are concerned, the impugned judgment of the trial Court is hereby set aside and the appeal as far as they are concerned, stands allowed and they are acquitted of the charges for which they had to face trial.

20. However, as regards A-1, the evidence is overwhelming with there being no doubt about the participation and role of A-1 in the crime. The fact that he wielded the bhujali is spoken of consistently by the eye witnesses PWs 1 to 4 and there is complete corroboration of their testimonies in that regard by the medical evidence. The fatal injuries have been shown to have been caused by the bhujali. On the other hand, the evidence of PW-5 and DW-1 are not backed by any credible evidence or for that matter the medical evidence and appear to be an afterthought. Consequently, as far as A-1 Dillip Kumar Behera is concerned, the impugned judgment of the trial Court is hereby affirmed and the appeal is dismissed.

21. While the bail bonds executed by A-2 and A-3 are hereby discharged, the bail bonds furnished by A-1 are hereby cancelled. A-1 is directed to surrender forthwith and in any event not later than 5th August, 2023, failing which the IIC of the concerned police station will apprehend him and initiate steps to take him

into the custody forthwith for serving out the remainder of the sentence.

22. The net result is that the appeal in so far as Appellant Nos.2 and 3 are concerned, is hereby allowed and the appeal is dismissed as far as Appellant No.1 Dillip Kumar Behera is concerned. A copy of this judgment be delivered forthwith to the IIC of the concerned Police Station for necessary action.

(S. Muralidhar) Chief Justice

(G. Satapathy) Judge

S. Behera/ Jr. Steno.

Signature Not Verified Digitally Signed Signed by: SUMANTA BEHERA Designation: Jr.Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Jul-2023 13:00:21