Orissa High Court
Basanta Dehury vs State Of Odisha on 27 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.37 of 2020
CRLA No.416 of 2021
AND
CRLA No.417 of 2021
In the matter of Appeals from the judgment of conviction and order of
sentence dated 31st August, 2020 passed by the learned Additional
Sessions Judge, Keonjhar, in S.T. Case No.26/53 of 2015.
----
Basanta Dehury .... Appellants
(In JCRLA No.37/2020)
Mitu Mallik
(In CRLA No.416/2021)
Goutam Penthei
(In CRLA No.417/2021)
-versus-
State of Odisha .... Respondent
(In all the Appeals)
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - Mr.Bhabani Sankar Das
(Advocate in all the three Appeals)
For Respondent - Mr.S.S.Kanungo
Additional Government Advocate
(In all the Appeals)
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE SASHIKANTA MISHRA
Date of Hearing : 10.03.2023 : Date of Judgment:27.03.2023
D.Dash,J. Since in all these three Appeals, the judgment of conviction and
order of sentence dated 31st August, 2020 passed by the learned
Additional Sessions Judge, Keonjhar, in S.T. Case No.26/53 of 2015
JCRLA No.37 of 2020 and CRLA Nos.416 & 417 of 2021
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corresponding to G.R. Case No.1227 of 2014 on the file of the learned
S.D.J.M., Keonjhar, has been called in question, those were heard
together for being disposed of by this common judgment.
These Appellants (accused persons) with nine others faced the
trial for commission of the offence under section 302/450 read with
section 34 of the Indian Penal Code, 1860 (for short, 'the IPC'). The
Trial Court, has found only these three accused persons guilty of the
offence under section 302/450 read with section 34 of the IPC whereas
other nine accused persons, who were facing the trial, have been
acquitted of those charges. Accordingly, these three accused persons
have been sentenced to undergo imprisonment for life and pay fine of
Rs.10,000/- (Rupees Ten Thousand) each in default, to undergo rigorous
imprisonment for six months for the offence under section 302 IPC and
rigorous imprisonment for five years with fine of Rs.5,000/- (Rupees
Five Thousand) in default, to undergo rigorous imprisonment for three
months each under section 450 IPC with the stipulation that the
substantive sentences are to run concurrently.
2. Prosecution Case:-
On 09.10.2014, the Informant-P.W.1's father, namely, Rajendra
Dehury had gone to Block Office for work and there accused Goutam
Penthei (Appellant in CRLA No.417 of 2021) quarreled with him and
assaulted him causing injury on his face. In the evening, around 7.00
p.m., said accused Goutam and two other accused persons, namely, Bala
and Pada Penthei (since acquitted) again came to their house and
quarreled with her father. Thereafter, around 9.00 p.m., these three
accused persons (Appellants) with others, who have been acquitted,
JCRLA No.37 of 2020 and CRLA Nos.416 & 417 of 2021
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came there being armed with sword and axe and entered into their house
and they then dragged Jemamani, the mother of the Informant from the
house to the courtyard and there accused Goutam and Basanta dealt
blows on her by means of a sword and tangia on her neck. When the
father of the Informant, namely, Rajendra went to rescue his wife
Jemamani and tried in that way, the accused persons also dealt blows on
him by said weapons. Those accused persons then beheaded Rajendra
and Jemamani, carried their heads for some distance and threw those on
the road.
On 10.10.2014 around 1 a.m., the daughter of the deceased
persons (P.W.1) lodged a report before the Inspector-in-Charge (IIC) of
Nayakote Police Station narrating the incident; in further stating that
these accused persons with others, having entertained the belief in their
mind that her mother, Jemamani was practising witchcraft, were bearing
grudge against the members of the family and they, having convened a
meeting in the village, had boycotted the family members.
On receipt of the said report (Ext.1), the I.I.C. entered the fact in
the Station Diary Book of the Banspal Police Outpost under Nayakote
P.S. and sent the same for registration of the case to the Nayakote P.S.
The case then being registered, investigation commenced.
The Investigating Officer (I.O.-P.W.16), in course of
investigation, examined the Informant (P.W.1) and other witnesses. He
visited the spot, found the heads and beheaded bodies lying on the road
side and near the house of P.W.1. He held inquest and prepared the
report. He then sent those for post mortem and seized the incriminating
articles such as sample earth, blood stained earth and broken bangles
JCRLA No.37 of 2020 and CRLA Nos.416 & 417 of 2021
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etc. and prepared the seizure lists in presence of the witnesses. The
accused persons, being arrested in batches, their wearing apparels were
seized under seizure lists. The seized incriminating articles were also
sent to the State Forensic Science Laboratory, Rasulgarh, Bhubaneswar
through Court. On completion of the investigation, final form was
submitted placing these accused persons with nine others to face the trial
for commission of offence under section 302/450 read with section 34 of
the IPC.
3. Learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Keonjhar,
having received the final form, as above, took cognizance of the said
offences and after observing the formalities, committed the case to the
Court of Sessions. That is how the trial commenced by framing the
charges for the above offences against these accused persons and others.
4. In the Trial, the prosecution has examined in total eighteen (18)
witnesses. Out of them, as already stated, P.W.1 is the Informant and
she is the daughter of those deceased persons, namely, Rajendra and
Jemamani. The aunt of P.W.1 has been examined as P.W.2 when the
younger sister of P.W.1 has deposed as P.W.3. The witnesses, such as
P.Ws.4, 8, 9 & 11 are the witnesses to the inquest and the elder father of
P.W.1 has been examined as P.W.6. The co-villagers have come to the
witness box as P.Ws.5, 7, 12 to 15 and 17. The Doctors, who conducted
the autopsy over the dead bodies are P.Ws.10 & 18. The I.O. has
appeared in the witness box and has been examined as P.W.16. Besides
leading evidence by examining the witness, the prosecution has also
proved several documents, which have been admitted in evidence and
JCRLA No.37 of 2020 and CRLA Nos.416 & 417 of 2021
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marked Exts.1 to 47. One axe, knife and saw edge with a handle have
been produced before the Trial Court and marked as Material Objects
viz:-M.O.I to III.
5. The plea of the defence is that of complete denial and false
implication.
6. The Trial Court, on examination of the evidence, having found
that Rajendra and Jemamani had met homicidal death, has arrived at a
finding that the prosecution has proved the charges under section
302/450 read with section 34 IPC as against these accused persons,
namely, Basanta Dehury, Mitu Mallik & Goutam Penthei and
accordingly, they have been sentenced as aforestated. The nine other
accused persons, namely, Pada @ Padmabati Penthei, Iswar Mallik,
Panchu Mallik, Sukuru Mallik, Pradeep Dehury, Bala @ Balia Pentheir,
Guru @ Bijay Mallik, Suresh Mallik and Madan Pradhan have been
acquitted with the finding that the prosecution has not been able to
establish the charges against them.
At the time of hearing, it was submitted by the learned Additional
Government Advocate for the State-Respondent that no Appeal has been
filed by the State questioning the acquittal of those nine accused persons
in the said trial nor any Appeal has been filed for enhancement of
sentence, as has been directed to be served by these accused persons.
7. Learned counsel for the Appellants submitted that the Trial Court
ought not to have relied upon the evidence of P.Ws.1, 2, 3, 6 & 7 to hold
that the prosecution has established the charges beyond reasonable
doubt against these accused persons. According to him, the Trial Court
JCRLA No.37 of 2020 and CRLA Nos.416 & 417 of 2021
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has not properly appreciated the evidence of these witnesses by taking
into account the surrounding circumstances emerging in evidence as
also some suspicious and doubtful features surfacing in evidence have
been ignored. He, therefore submitted that the conviction against these
accused persons is liable to be set at naught.
8. Learned Additional Government Advocate, refuting the above
submission, invited out attention to the depositions of those witnesses,
i.e., P.Ws.1 to 3, 6 & 7. He pointed out that there is absolute no infirmity
in their evidence. He also submitted that there is no contradiction and
the evidence of all these witnesses are consistent with one another in so
far as the role played by these accused person are concerned that these
accused persons had dealt the fatal blows upon the deceased persons and
severed the heads from the trunks one after another and carrying those
heads, having thrown those by the side of the road, left the place.
According to him, with such clear evidence on record, the finding of
guilt rendered by the Trial Court as against these accused persons are
not liable to be tinkered with.
9. Keeping in view the submissions made, we have carefully read
the entire judgment passed by the Trial Court. We have also gone
through the deposition of all the witnesses (P.Ws.1 to 18) and have
travelled through the documents admitted in evidence and marked
Exts.1 to 47.
10. In order to judge the sustainability of the finding of the guilt
returned by the Trial Court, which has been impugned in these Appeals,
side by side addressing the rival submissions of the parties, we are now
JCRLA No.37 of 2020 and CRLA Nos.416 & 417 of 2021
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called upon to examine the evidence of those important prosecution
witnesses, i.e., P.Ws.1, 2, 3, 6 & 7.
P.W.1 is the daughter of the deceased persons and she is the
Informant, who has proved the written report submitted at the Police
Station, which has been treated as FIR and admitted in evidence being
marked as Ext.1. She is aged about fourteen years as has been assessed
by the Trial Court when she claims herself to be of thirteen years old. It
is her evidence that her father had been to the market and returned home
in the evening. The accused persons came to their house and called her
father, namely, Rajendra to go to the rice godown for shifting the rice
bags and accordingly, her father went with them to the market. It is
stated that her father returned with the bleeding injuries on his face and
then he had disclosed that he having been assaulted by the accused
persons when was with them, had sustained those injuries. It is her
further evidence that all the accused persons then again came to their
house and quarreled with her father and they stated that they would not
commit any offence further and saying so, they left. It is further stated
that they later came back and that time, they dragged her parents, i.e.,
Rajendra and his wife Jemamani from the house without paying any
heed to the request of this witness (P.W.1) and others and thereafter,
they assaulted the parents on village road in front of their house. P.W.1
has stated that she was witnessing the occurrence at that time helplessly
by standing near the door when the accused persons went on assaulting
her parents by means of axe, sword and knife and while so assaulting,
they beheaded her parents. When they threatened her and her sister
(P.W.3) to kill, she with her sister and younger brother went to the
JCRLA No.37 of 2020 and CRLA Nos.416 & 417 of 2021
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Police Station in that night and intimated about all said happenings,
which being reduced into writing, was treated as FIR (Ext.1). During
cross-examination, it has been brought out that at that point of time
when accused persons last arrived, she with her brother, sister, parents
and aunt (sister of Rajendra) were present in the house. Although,
during cross-examination, this witness has been confronted with her
previous statement that she had not stated in course of investigation that
her father had been taken to the market by the accused persons and on
his return, he had disclosed about the occurrence which had taken place
there and that she had also not stated that her parents were dragged out
of the house and assaulted; these in our view are too minor
contradictions to tell upon the veracity of the evidence so as to doubt the
entire version of P.W.1 with regard to her presence and witnessing the
role played by these accused persons in finally beheading her parents.
Furthermore, in view of the last happenings where her parents were
beheaded, she having not stated about the prior happenings as to what
had been told by her father on his first return with regards to the injuries
on his persons etc. are too minor as omissions to be given any
importance at all. Those omissions are quite obvious in view of the
brutal act of the accused persons, which she being a girl of tender age
had to see to her greatest misfortune. In fact, we find that the version of
this witness (P.W.1) with regard to the dragging of her parents from the
house by these accused persons, mercilessly assaulting her parents in the
courtyard and finally, severing their heads and trunks beyond slightest
imagination of anybody have remained wholly unshaken. The witness,
during cross-examination, has further asserted to have seen the incident
JCRLA No.37 of 2020 and CRLA Nos.416 & 417 of 2021
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from the beginning till the end. She has successfully withstood the
cross-examination on every such material aspect of the last incident
where her parents were beheaded. In such scenario, the conduct of this
P.W.1 in not raising any hullah, which is commented upon by the
learned counsel for the Appellants is rather very much natural. When
several persons, being armed, are going on with the spree of killing her
unarmed parents before her eyes and other family members, it is not at
all expected from this P.W.1 or other family members to raise alarm.
Rather the normal reaction would be to be a silent spectator to this
ghastly incident being completely aghast and shocked by said acts,
which is totally unexpected and unthinkable on her part as if a horror
film was being exhibited before her.
11. P.W.2 is the aunt of P.W.1 and she is the sister of deceased
Rajendra. She has stated that she was staying in the house of Rajendra,
which provides corroboration to the evidence of P.W.1. She says that in
that night, when accused persons came by shouting that her deceased
brother was practising witchcraft and they entered into their house,
thereatened her brother to come out of the house in saying that they
would kill them all. It is further stated that her brother Rajendra and his
wife Jemamani were then dragged from the house and assaulted by
means of sword, axe and knife and subsequently, they were beheaded
which is to her total surprise. This witness, during cross-examination,
has stated that she could narrate as to which accused assaulted her
brother and his wife and in which manner. She has further stated during
cross-examination that accused Mitu was holding a knife; accused
Basanta was holding a sword; and accused Goutam was holding an axe
JCRLA No.37 of 2020 and CRLA Nos.416 & 417 of 2021
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and they all assaulted. The defence then expecting further problem being
invited has not proceeded in putting anymore question to her. According
to her, the actual incident took place in the village road, which is in front
of their house, which is also the version of P.W.1. She has also stated
that these accused persons were in inimical terms with her brother. What
we find that despite cross-examination, the evidence of this witness with
regard to all said happenings in the incident and the overt acts done by
these accused persons have not been shattered even to the slightest
extent. When this witness had not stated as to which accused was
holding what weapon, that has rather been elicited during cross-
examination and that fortifies the role of these accused persons. It
appears that this witness at the earlier stage being not so descriptive has
after some time on being so asked could not resist the temptation to tell
all those happenings being truthful.
12. Next comes the evidence of P.W.3, who is the daughter of the
deceased persons and sister of P.W.1. She was then aged about eleven
years. The Trial Court, having tested her and finding her to be
understanding the questions and giving rational answers, which have
been noted in the deposition, has proceeded to record her evidence.
When she had not stated as to the assault part by these accused persons
and its manner, that is seen to have been brought out in the cross-
examination wherein she has stated that the accused persons assaulted
her parents by means of axe, sword and knife. She, being not able to
state as to which accused was holding which weapon, in our view, under
the circumstance and the way the incident took place within a short span
of time does not assume significance at all and that cannot be taken as a
JCRLA No.37 of 2020 and CRLA Nos.416 & 417 of 2021
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circumstance to doubt the presence of this witness at the time of
occurrence in a situation as has happened. On the face of the version of
P.Ws.1 & 2, a girl child aged about eleven years, i.e., P.W.3, being not
able to mark those minute details and accordingly, state during trial in
no way tells upon the credibility of her evidence. Had she rather stated
all those details, that would have been commuted upon that she had
shown over anxiety. Moreover, it is ordinarily not expected from a girl
child of eleven years, who in her own eyes, sees her helpless parents
being beheaded in a ghastly manner to mark and give a detailing on the
tit bit role played by the accused persons.
13. When the evidence of P.W.6 is gone through, we find that the
same is wholly consistent with the evidence of P.Ws.1 to 3 without any
variation on material part. He is the elder brother of deceased Rajendra.
Interestingly, from this witness, the defence, during cross-examination,
has elicited in clear terms that accused Goutam assaulted by means of
axe; accused Basanta assaulted by means of sword and accused Panchu
and Mitu were then holding knives and other accused persons were
holding his brother Rajendra and Jemamani. There arises absolutely no
doubt regarding identification of the assailants and this witness has gone
to further narrate the situation then that there was no darkness at that
time and their houses were having electric connection, which was then
going uninterrupted. He has forcefully denied the suggestion that he was
not present and has not seen the incident.
14. P.W.7 has stated that the accused persons were suspecting
deceased Rajendra and his wife Jemamani of practicing witchcraft. It
JCRLA No.37 of 2020 and CRLA Nos.416 & 417 of 2021
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has been further stated by her that the accused persons entered into the
house of Rajendra and dragged him and his wife and then killed them.
Her evidence is also that at the relevant time of incident, P.Ws.1 to 3
and 6 were present in the house. No such material has surfaced during
cross-examination of this witness (P.W.7) as well as other witnesses
whose evidence, we have already discussed above, to even infer for a
moment that they are not the witnesses of truth. The evidence of these
witnesses are in our view wholly trustworthy and reliable. They the
delay in lodging the FIR in the circumstances is also of no importance to
strike upon the acceptability of the evidence of all these witnesses as
discussed. The variations with regard to the time given by these witness
as to some extent, in our considered view cannot be so viewed to doubt
the version of those witnesses, which are otherwise consistent and run in
the same vein in so far as the last leg of the incident where the deceased
persons, namely, Rajendra and his wife Jemamani were beheaded.
15. On a conspectus of analysis of the evidence hereinabove, this
Court finds that the prosecution has proved its case against these
accused persons as having committed the murder of Rajendra and
Jemamani beyond reasonable doubt and as such, the judgment of
conviction and order of sentence dated 31 st August, 2020 passed by the
learned Additional Sessions Judge, Keonjhar, in S.T. Case No.26/53 of
2015 hereby receives the seal of confirmation.
16. At this juncture, after having held these accused persons guilty in
intentionally causing the death of Rajendra and Jemamani by
committing house trespass, in addressing the adequacy of sentence,
JCRLA No.37 of 2020 and CRLA Nos.416 & 417 of 2021
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when we again turn our attention to the obtained evidence as regards the
way and manner in which the occurrence took place as well as all the
circumstances as have emerged and the part played by these accused
persons therein; we are not able to bring ourselves to a position to
straight away take a view that the imposed sentence may be adequate.
Therefore, with the obtained evidence, despite the fact that the State has
not preferred any Appeal for enhancement of the sentence for
considering the adequacy of the sentence, in exercise of the revisional
power under section 397 read with section 401 of the Code of Criminal
Procedure, we propose to issue notice to these accused persons to have
their say on the adequacy of sentence and as to why they should not be
visited with the sentence of higher degree.
In that view of the matter, while upholding the conviction of the
accused persons for committing the offence under section 302/450/34
IPC, notice is hereby given to the learned counsel appearing for the
accused persons in Court today to have his submission on behalf of the
accused persons as to why the sentence, as has been imposed by the
Trial Court upon the accused persons shall not be enhanced. We, also as
a measure of abandon caution direct the Registry to immediately send
the notice to the Superintendent, District Jail, Keonjhar to be served
upon the accused persons as to why the sentence imposed by the Trial
Court upon them shall not be enhanced as being not adequate and
commensurate the crime committed by them.
It be indicated in the notice that these Appeals would again be
listed on 17.04.2023 for hearing on the question of sentence and the
service returns be ensured by 31st March, 2023.
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List these Appeals before this Bench on 17th April, 2023.
(D. Dash)
Judge
Sashikanta Mishra, J I agree.
(Sashikanta Mishra)
Judge
Basu
JCRLA No.37 of 2020 and CRLA Nos.416 & 417 of 2021
