Kabindra Chhanda vs State Of Odisha
2023 Latest Caselaw 7607 Ori

                                             IN THE HIGH COURT OF ORISSA AT CUTTACK

                                                                 JCRLA No. 30 of 2008

                                          Kabindra Chhanda                             ....             Appellant

                                                                           -versus-
                                          State of Odisha                              ....           Respondent

                                          Advocates appeared in the cases:

                                          For Appellant                :                 Mr. Arun Kumar Budhia,
                                                                                                      Advocate

                                          For Respondent               :                      Mr. Rajesh Tripathy
                                                                                      Additional Standing Counsel

                                           CORAM:
                                           THE CHIEF JUSTICE
                                           JUSTICE G. SATAPATHY

                                                                     JUDGMENT

14.07.2023 Dr. S. Muralidhar, CJ.

1. The present appeal is directed against the judgment dated 18th June 2007 passed by the Additional Sessions Judge (FTC), Balangir in Sessions Case No.115/8 of 2006-07 convicting the Appellant for the offences punishable under Sections 302 and 307 of Indian Penal Code (IPC) and sentencing him to undergo imprisonment for life for the offence under Section 302 IPC and rigorous imprisonment (RI) for five years for the offence punishable under Section 307 IPC and both the sentences were directed to run concurrently.

Signature Not Verified

Signed by: SUBASH KUMAR GUIN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jul-2023 15:47:30

2. The case of the prosecution is that the Appellant was married to the deceased Sabya Chhanda in 2001. They had a daughter, Indumati, who at the time of occurrence was 3 years old.

3. The Appellant suspected the character of the deceased and there were quarrels between them on that score. On 21st April, 2006 Bahadur Karmi (PW-13), the father of the deceased and Jasobanti Karmi (PW-14) her mother and certain other men of village Sibtala had come to visit the deceased at her matrimonial house at village Khamarmunda.

4. On 22nd April, 2006, a Sani Mela was performed in the house of the Appellant. After dinner, the deceased, her daughter Indumati, PW-14 and the present Appellant slept in the inner court yard of the house. PW-13 and the Appellant's father slept in the outer part of the house.

5. On the intervening night of 22nd /23rd April, 2006 at around 2.30 am, on hearing the hullah of PW-14, PW-13 woke up and rushed towards the house. He found the Appellant assaulting P.W.14 with an axe. On seeing PW-13, the Appellant left the spot. PW-13 then found the deceased, i.e., his daughter Sabya lying on the bed with bleeding injuries on her head. He also noticed bleeding injuries on the head of her daughter Indumati, who had been sleeping with the deceased on the cot.

6. PW-14 informed PW-13 that the Appellant had been repeatedly assaulting the deceased with an axe on her head and when PW-14 protested, the Appellant assaulted PW-14 and Indumati as well.

Signature Not Verified Digitally Signed

Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jul-2023 15:47:30

7. With the assistance of certain others, PW-13 brought PW-14 and Indumati to the District Headquarters Hospital (DHH) for their treatment. The treating doctor was Dr. Balaram Panigrahi (PW-10). He sent an MLC to the Sadar Police Station at Balangir through the IIC of the Balangir Town Police Station. Rajib Lochan Panda (PW-16) was the Investigating Officer (IO) who proceeded to the DHH where PW-13 lodged the FIR. As PW-14 was injured and unconscious, PW-16 could not immediately examine her. He conducted an inquest over the dead body, seized the axe which was lying on the backside Bari near a bamboo bush and prepared a seizure list. He then sent the dead body for postmortem. He seized the Sambalpuri saree and blouse both of which were blood stained, some broken bangles, one white mali and gold nose flower.

8. On 24th April, 2006 PW-16 examined PW-14 who had by then regained consciousness. The IO found that the Appellant had been beaten up by the family members with his legs and hands being tied by them by a rope. He was formally arrested on 23rd April, 2006 and sent to DHH, Balangir on the following day for medical examination. Many of the exhibits seized during investigation were sent to the S.F.S.L., Bhubaneswar for chemical examination. On completion of the investigation, a charge sheet was submitted against the Appellant for the aforementioned offences.

9. The Appellant pleaded not guilty and claimed trial. The mother of the deceased PW-14 and the father of the deceased PW-13 were the two key witnesses. PW-14 was an injured eye-witness.

Signature Not Verified

Signed by: SUBASH KUMAR GUIN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jul-2023 15:47:30 PW-7 was the post-occurrence witness. Of the two doctors, while PW-9 conducted the postmortem, PW-10 examined the injured.

10. PW-14 was clear and cogent as to her having witnessed the assault by the Appellant on the deceased with an axe (tangia) repeatedly on the head. She spoke about his assaulting her as well as the daughter Indumati. She also spoke about raising a hullah hearing which, PW-13, her husband, rushed to the spot. She immediately divulged to him about the assault made by the Appellant by a tangia on the deceased, on PW-14 and Indumati. A preposterous suggestion was made to this witness in cross- examination about her waking up to find the deceased with another man in the backside bari and that it was PW-14 who murdered her own daughter. She, of course, denied the suggestion. No suggestion was made to the IO in that regard.

11. The fact that PW-14 was injured is confirmed by the deposition of PW-10. He found the following injuries on her person:

"1. Laceration of size 3" length x 2" breadth scalp depth over left fronto parietal region. Simple in nature. It might have been caused by hard object.

2. Incised looking laceration 5" length x 2" breadth bone depth over left frontal region and eye. Grievous in nature, might be due to hard object.

3. Incised looking wound 2" length x 1" breadth 5 cm depth over left dorsom of hand. Simple. Might be caused due to hard object."

Signature Not Verified Digitally Signed

Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jul-2023 15:47:30

12. PW 10 confirmed that the above injuries could be possible by the axe that was seized (MO-I). Likewise, PW-10 also found injuries on Indumati which was a laceration which was scalp depth over left frontal region. He confirmed that this also was possible as a result of MO-I.

13. While undoubtedly, PW-14 is an interested witness, she is at the same time an injured witness who was present at the spot. Her evidence required independent corroboration which is available in the form of the medical evidence of PW-10. She has stood firm in her cross-examination and her testimony is cogent and consistent.

14. This Court has carefully examined the deposition of PW-14 in light of the evidence of PW-10 and Dr. Durga Prasad Sahu (PW-

9) who conducted the postmortem. Multiple injuries found by him on the dead body were as under:

"1. Chop wound of size 6 cm x 2 cm x 7 cm present obliquely above downwards on the left temporal occipital region 3 cm behind the left ear with fractures of underlying occipital and temporal bones. Meninges torn, brain damaged, and torn into pieces with multiple clots present inside the brain matter.

2. Incised wound of size 6 cm x 2 cm x 2 cm present transversely directed from left to right on the nape of the neck with a flap of the scalp hanging down.

3. Lacerated wound of size 5 cm x 2 cm bone depth present on the left side of the nape of the neck with fracture of occipital bone into multiple pieces."

Signature Not Verified

Signed by: SUBASH KUMAR GUIN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jul-2023 15:47:30

15. The Court finds the evidence of PW-14 therefore, to be corroborated by the medical evidence. This is apart from the fact that PW-13, the father of the deceased, has also corroborated the evidence of PW-14 and, in particular, about her divulging to him about the Appellant having given repeated tangia blows on the head of the deceased. This was soon after the occurrence. This witness, i.e., PW-13 was also subjected to extensive cross- examination but, stood firm.

16. It was sought to be argued that the prosecution had miserably failed to prove the motive for the crime. However, PW-13 did mention about the deceased and the Appellant having quarrels. PW-16 stated that the Appellant was suspecting the character of the deceased.

17. As regards the FIR being ante-dated, the evidence of PW-16 is clear and cogent in this regard. Even though PW-13, the Informant may have been illiterate, and therefore, the FIR could not be exhibited through him, in his cross-examination, PW-13 did state that at the hospital where the Police had come to investigate, he handed over the FIR. Interestingly, the answers given by the Appellant in his examination under Section 313 Cr PC, also indicates that far from denying that he was the perpetrator of a crime, he appears to have accepted it and expressed his desire not to live.

18. Having carefully examined the entire evidence with the assistance of learned counsel for the parties, the Court is satisfied

Signature Not Verified Digitally Signed

Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jul-2023 15:47:30 that the prosecution has been able to prove the case against the Appellant beyond all reasonable doubt. Both the witnesses PWs- 13 and 14 have corroborated to each other in material particulars and their evidence stands fully corroborated by the medical evidence of PWs 9 and 10. This is apart from the fact that the scientific examination report has confirmed the presence of human blood on the axe. Consequently, the Court is satisfied that no case has been made out for interference with the impugned judgment of the trial court.

19. Although the Appellant may have served more than nineteen years in custody, the Court is not in a position to pass any order as regards the remission of the sentence. That would be a matter of State policy.

20. There is no merit in the present appeal and it is dismissed as such. A copy of this judgment be delivered to the Superintendent of the concerned Jail to enable him to not only provide a copy thereof to the Appellant forthwith but also explain to him its contents.

(S. Muralidhar) Chief Justice

(G. Satapathy) Judge

S.K. Guin/P.A.

Signature Not Verified

Signed by: SUBASH KUMAR GUIN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Jul-2023 15:47:30