2015 vs State Of Orissa
2023 Latest Caselaw 8068 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                           JCRLA No.48 of 2018
         In the matter of an Appeal under section 383 of the Code of
   Criminal Procedure and from the judgment of conviction and order of
   sentence dated 04th December, 2017 passed by the learned Additional
   Sessions Judge, Athmallik in C.T.(S) No.172 of 2017/C.T.(S) No.73 of
   2015.



       Brundaban Dehury                       ....         Appellant


                                  -versus-

       State of Orissa                        ....         Respondent

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

                For Appellant     -     Mr.Jashobanta Dash,
                                        Advocate

                For Respondent    -     Mr.S.K.Nayak,
                                        Additional Government Advocate

                CORAM:
                MR. JUSTICE D.DASH
                DR. JUSTICE S.K.PANIGRAHI

Date of Hearing :23.06.2023 : Date of Judgment: 24.07.2023 D.Dash, J. The Appellant, by filing this Appeal from inside the Jail, has challenged the judgment of conviction and order of sentence dated 04.12.2017 passed by the learned Additional Sessions Judge, Athmallik in C.T.(S) No.172 of 2017/C.T.(S) No.73 of 2015, arising out of G.R Case No. 387 of 2011, corresponding to Kishorenagar P.S. Case No.85

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of 2011 of the Court of the learned Sub-Divisional Judicial Magistrate (SDJM), Athmallik.

The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of Indian Penal Code, 1860 (in short, 'the IPC') and offence under section 25 (1) and 27 (1) of the Arms Act. Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.5000/- (Rupees Five Thousand), in default to undergo Rigorous Imprisonment for 2 (two) months for the offence under section 302 of the IPC and Rigorous Imprisonment for 4 (four) years with fine of Rs.2000/- (Rupees Two Thousand) in default to undergo Rigorous Imprisonment for 1 (one) month on each count for the offence under the Arms Act.

2. Prosecution case is that on 10.10.2011 around 2 pm, when the mother of the accused, namely, Tula was taking her meal in the house of Lachhaman (P.W.5), the accused arrived there and he fired from a country made gun on the backside of her waist. It is stated that receiving the said gunshot injury, Tula fell down in front of the kitchen of the house.

The younger brother of the accused Lachhaman then informed the matter over telephone to the Police Officer attached to Kishorenagar Police Station. Police personnels arrived at the spot immediately in the vehicle and Tula was shifted to Kishorenagar CHC in that vehicle where she died.

Lachhaman (P.W.5) then lodged a written report with the Inspector-in-Charge (IIC) of Kishorenagar Police Station. Treating the same as FIR (Ext.3) and upon registering the case, the Sub-Inspector (SI) of Police attached to Kishorenagar Police Station (P.W.10) took up

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investigation. He immediately examined the informant (P.W.5) and other witnesses. He also collected the blood stained and sample earth from the spot and prepared the seizure list. He then held the inquest over the dead body of Tula at the CHC in presence of witnesses and prepared the report to that effect (Ext.2). Other incriminating articles were also seized. The accused being not found at the relevant time in the house was later on arrested. The seized incriminating articles were sent for chemical examination through Court and finally on completion of investigation, Final Form was submitted placing the accused to face the Trial for commission of offence under section 302 of IPC in causing the murder of his mother (Tula).

3. Learned SDJM, Athmallik having received the Final Form as above, took cognizance of the offences under section 302 of the IPC and Section 25/27 of the Arms Act and after observing the formalities, committed the case to the Court of Sessions for trial. That is how the Trial commenced against the accused.

4. In the Trial, prosecution in total has examined eleven (11) witnesses; out of whom as already stated P.W.5 is the informant who is the son of the deceased and he is also the younger brother of the accused. The wife of P.W.5 has been examined as P.W.9, who has been projected by the prosecution as the eye witness. The witnesses to the inquest are P.W.3 and P.W.7 whereas P.W.1 and P.W.2 are the witnesses to the seizure. P.W.6 is the neighbour to whose house, P.W.9 with her children had gone and narrated the occurrence. The Doctor, who had conducted autopsy over the dead body of the deceased, has

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been examined as P.W.10 and P.W.11 are the two Investigation Officers (I.Os).

5. The prosecution besides leading the evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked Ext.1 to 15. Out of those, the important are the FIR (Ext.3), Inquest Report (Ext.2), Post Mortem Report (Ext.4) and the Chemical Examiner's Report which has been marked as Ext.15.

6. The Trial Court on going through the evidence of P.W.8, the Doctor who had held autopsy over the dead body of Tula (deceased) as also other evidence has arrived at a conclusion that Tula met a homicidal death. In fact this aspect of the case was not under challenge before the Trial Court and that is also the situation before us.

7. P.W.8, the Doctor while holding the Post Mortem Examination has noted all the external injuries on the person of the deceased and he has mentioned all those in his report (Ext.4). He has stated that all such injuries are ante mortem in nature and the death is homicidal. He has also found multiple pellets from the inguinal part of the deceased and having recovered those had handed over to the police constable, who had accompanied the dead body for post mortem examination. It is the evidence of P.W.8 that the firing has been made from a very short distance of about two feet.

The wife of P.W.4 has also stated to have seen the deceased with such gunshot injuries. The I.O. (P.W.10) having held inquest over the dead body of the deceased has also noted such injuries in his own language in the Inquest Report (Ext.2). With such overwhelming evidence remaining unchallenged, we find ourselves to be wholly in

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agreement with the finding of the Trial Court that the death of Tula was homicidal.

8. Defence plea is that of complete denial and false implication. No evidence either oral or documentary has been tendered by the defence.

9. Learned counsel for the Appellant (accused) submitted that here the entire case of the prosecution is based upon the solitary testimony of P.W.9, who is none other than the wife of the younger brother of the accused i.e. P.W.5. He submitted that the Trial Court having not properly analyzed the evidence of P.W.9 has gone wrong in holding the accused to be the author of the injuries received by the deceased leading to her death. He submitted that the evidence of P.W.9 is not of that sterling quality so that it can form the basis of conviction without any corroboration from any quarter which is not forthcoming.

10. Learned counsel for the State submitted that the evidence of P.W.9 when read as a whole, inspire full confidence in mind that she had seen before her the accused firing at the deceased, who happens to be her mother-in-law in causing such injuries which have finally lead to her death.

11. Keeping in view the submissions made, we have carefully read the impugned judgment passed by the Trial Court. We have also gone through the evidence of the prosecution witnesses i.e. P.W.1 to P.W.11 and have perused the documents admitted in evidence and marked Ext.1 to Ext.15.

12. Prosecution case is based upon the solitary testimony of P.W., who has been projected as the eye witnesses to the occurrence. It is true

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that P.W.9 is the wife of the younger brother of the accused i.e. the younger son of the deceased. The Incident took place in front of the kitchen of the house and it was around 2 pm. She has stated that at the relevant time her mother-in-law (deceased) was taking food when all of a sudden, the accused appeared with a gun and placing the gun on the backside of the waist of her mother-in-law, he fired. It has been stated by P.W.9 that out of fear she ran away and took shelter in her neighbour's house and it was only after arrival of the police, she came out. She has deposed to have stated about the occurrence to many persons including their neighbour in whose house, she with her children had taken shelter. The witness we find although has been cross- examined, no such materials has been elicited to cast any doubt as to her presence at the relevant time in the house which rather in surrounding circumstances appear to be quite natural. Thus, her evidence as to her presence and to have seen the incident firmly stands.

13. When the above witness has been thrown with the suggestion that she had not stated before the police that accused fired at her mother-in- law, the same has not been proved through the I.O. (P.W.10) and therefore, it is not permissible to say that such version of P.W.9 as regards the role of the accused for the first time was disclosed in the Trial. The neighbour (P.W.6) has stated that P.W.9 had taken shelter in his house and then had stated about the occurrence before him. It is not the case of defence that the house of P.W.6 is not situated in the near vicinity. In that view of the matter, we find absolutely no material to disbelieve the version of P.W.9. On deeper scrutiny we also find the evidence of P.W.9 to be of sterling quality when absolutely no material is available to show that she had even not the remote the enmity with the

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accused to have the instinct of falsely arraigning him in the incident. So when there is no bar in the eye of law to base a conviction relying upon the unblemished testimony of a solitary witness, we find ourselves wholly in agreement with the finding of the Trial Court that the prosecution has proved the charges against the accused beyond reasonable doubt in committing the murder of his mother Tula by means of the country made gun.

14. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 04.12.2017 passed by the learned Additional Sessions Judge, Athmallik in C.T.(S) No.172 of 2017/C.T.(S) No.73 of 2015 are hereby confirmed.

(D. Dash), Judge.

Dr.S.K.Panigrahi, J. I agree.

(Dr.S.K.Panigrahi), Judge.

Gitanjali

Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC

JCRLA No.48 of 2018