Orissa High Court
(From The Judgment Of Conviction ... vs State Of Odisha on 17 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.681 of 2019
(From the judgment of conviction and order of sentence dated
26.06.2019 passed by the learned Additional District and
Sessions Judge, Anandapur in Sessions Trial Case No.53/209 of
2017/16).
Debakanta Rout @ Kalia .... Appellant
-versus-
State of Odisha .... Respondent
Advocates appeared in the case:
For Appellant : Mr. C. R. Sahu, Adv.
-versus-
For Respondent : Mr. S.S. Kanungo, AGA
CORAM:
MR. JUSTICE D. DASH
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-13.02.2023
DATE OF JUDGMENT:-17.05.2023
Dr. S.K. Panigrahi, J.
1. This appeal is directed against the judgment and order dated
26.06.2019 passed by the learned Addl. District and Sessions
Judge, Anandpur in Sessions Trial Case No. 53/209 of 2017/16
(arising out of G.R. Case No. 462/2016 corresponding to
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Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
Anandpur P.S. Case No. 106 of 2016) convicting appellant for
commission of offence under Sections 450/302 of IPC and
sentencing him to undergo R.I. for 10 (Ten) years and to pay a
fine of Rs.20,000/( Rupees Twenty Thousand) in default of
payment of fine. The appellant has been sentenced an R.I for 1
(one) year for the offence punishable under Section 450 of IPC
and he was also sentenced to undergo imprisonment for life
and to pay a fine of Rs. 20,000/- (Rupees Twenty Thousand) in
default of payment of fine, the appellant shall suffer R.I for 1
(one) year for the offence punishable under Section 302 of
IPC.
I. CASE OF THE PROSECUTION:
2. The case of the prosecution is that on 23.06.2016, at about 6
PM to 7 PM, one Narayan Rout ("the deceased") was sleeping
in his room when his elder son, Debakant Rout ("the
appellant") suddenly entered the room. He started
quarrelling and verbally abusing Tillotama Rout, Narayan's
wife and Debakant's mother, in a filthy language while
demanding that Tillotama gives him a sum of Rs. 20,000/-.
When Tillotama refused his demands, Debakant assaulted her
with fist blows and forcibly took away the keys of the
almirah. When the appellant tried to open the almirah to take
away the money, Narayan protested against the same. In
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Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
reply, Debakant inflicted a blow to his head near right ear
with an axe.
3. Finding no way out of the situation, as Tillotama raised hulla
to rescue her husband from the clutches of Debakant, he left
the place by inflicting fist blows upon the Tillotama and fled
with the money and gold ornaments from the almirah.
4. Thereafter, Narayan was shifted to SDH, Anandpur. But he
had sustained serious mortal injuries and he was referred to
SCB Medical College, Cuttack. After discussion with the
younger son, Ratikanta Rout, who lives in Bhubaneswar,
Tillotama admitted her husband in the Apollo Hospital,
Bhubaneswar for his treatment.
5. Tillotama recounts that she and Narayan resided in a house at
Bancho Chhak, on the other hand, Debakant used to reside in
another house in the village. Debakant would regularly take
advantage of their loneliness and forcibly take away money
by threatening them of severe consequences.
6. Thereafter, Tillotama Rout ("the informant") reported the
matter to Anandpur P.S. and tendered a written report on
26.06.2016. The IIC, Anandpur P.S registered the same as for
commission of the offences under sections
448/341/294/323/325/307/379/506 of IPC and proceeded with
the investigation. But, after the death of the injured husband
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Signed by: BHABAGRAHI JHANKAR
Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
of the informant, the case was turned to the case Under
Section 451/302/379 of I.P.C.
7. During investigation, the police examined the witnesses, held
inquest over the dead body of Narayan Rout and shifted the
dead body to the Capital Hospital, Bhubaneswar for
Postmortem Examination. The police also seized one blood
stained pillow, an axe, the apparel of the deceased, apparel of
the appellant, one half tore hand written letter, one cheque
book of SBI Bank, one ATM of Canara bank and some keys.
During investigation, police collected P.M Examination report
from the Superintendent of Capital Hospital, Bhubaneswar.
8. After completion of the investigation the police submitted
Charge Sheet against the appellant vide Charge Sheet
No.131/2016 dated 18.10.2016 for commission of the offence
U/s 450/302 of IPC and accordingly charge was framed and
the trial commenced.
9. The appellant took the plea of complete denial and pleaded
not guilty to the charges framed against them.
10. The prosecution examined 27 (twenty seven) witnesses and
led evidence with several documents and material objects.
The defence, on the other hand, examined one witness.
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Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
II. TRIAL COURT JUDGMENT
11. The trial Court began the analysis of the case by with the
examination of the medical report to ascertain the nature of
the death of the deceased.
12. Dr. Laxmikant Behera (P.W. 19), the doctor who conducted
the post-mortem examination, noted a lacerated wound in the
skull, deep over right perito occipital area surrounded by a
boggy swelling of size and a wound of extending from left ear
to occipital area, extending up to the mid forehead. He opined
that all the injuries as recorded in the post-mortem report
could have been caused by hard and blunt weapon like the
axe seized during the investigation. He explained that death
the deceased is due to cranio-cerebral injury and its
complication thereof.
13. The defence argued that the aforementioned wounds could've
been caused due to the deceased sustaining a fall on the edge
of the tiled stair case. However, this contention was negated
by P.W.19 in the cross-examination where he deposed that if
an old man, such as the deceased, falls on the edge of a tiled
stair case he would sustain additional injuries verifiable
though medical examination; which was not the case here.
14. The trial court affirmed from the evidence of P.W.19 that the
deceased had sustained mortal injuries from the weapon and
it is clear that the death of Narayan Rout is indeed homicidal;
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Signed by: BHABAGRAHI JHANKAR
Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
as he ruled out possibility of the above injury by fall from the
stair case.
15. Now, the trial court examined the testimony of the sole eye
witness, Tillotama Rout (P.W.1).
16. She elaborately described what transpired on that fatal
evening. She deposed that the accused is her eldest son. She
testified that her husband was taking rest in their room when
the accused bashed into the room and, started abusing her
and her husband in vulgar words. The accused asked her to
pay Rs. 20,000/- immediately. On her refusal, the accused
punched her and also kicked her while snatching the key of
her almirah. Her husband then woke up and asked her about
the matter and she told him that the accused had assaulted,
abused her and snatched the keys from her. When the
accused reached the almirah, her husband protested against
his aggression. The accused took out a 'Kuradhi' (axe) from a
bag he was carrying and dealt a blow with it on the right side
of the head above the right ear of her husband. Due to such
assault her husband fell down and writhed with pain. It also
reveals from her testimony that she started crying loud seeing
the condition of her husband and the accused then assaulted
her by dealing fist and kick blows, opened the almirah with
the key, took out cash, ornaments therefrom and fled through
the back door.
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pg. 6
Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
17. It is further stated by the said witness that on hearing the
hulla, the villagers namely Narayan Swain (P.W.6), Niladri
Rout, Mukesh Rout (P.W.7) and Bhuja Naik rushed to her
house and she requested them to shift her husband to
hospital. The above named villagers and her driver Rajkishore
(P.W.2) shifted her husband in an Auto to the S.D.H.,
Anandapur and by that time her husband had already lost
sense. The doctor at S.D.H., Anandapur referred him to
Cuttack hospital but he was immediately shifted to Apollo
Hospital, Bhubaneswar in an Ambulance. in the morning of
28.06.2016, while undergoing treatment in the said Hospital,
he succumbed to his injuries.
18. In the cross-examination, she deposed that the wife and the
children of the appellant were staying separately in village
Bancho in another house and her youngest son (Ratikanta)
has built a house at village chhak of Bancho where she and
her husband were staying. She also stated that the house of
her son is about 1 km from her own house where the family of
the appellant is residing.
19. She further narrated that the tiled floor of the room was
covered in blood after her husband fell down after being
assaulted by the appellant. She also told that that she was
aching from pain due to the kicks and fist blows inflicted on
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Signed by: BHABAGRAHI JHANKAR
Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
her by the accused but she was not sent for medical
examination by the police.
20. The trial court thoroughly observed the evidence of P.W.1 and
found her statement to be consistent and cogent while
narrating the occurrence. Though the said witness was
examined at length but she remained consistent with her
statements.
21. On the other hand, the defence indicated that the said witness
was not in the house at the time of occurrence. In order to
substantiate the said plea, defence examined one witness,
Mihir Kumar Baral (D.W.1).
22. D.W.1 deposed that at the time of occurrence, he heard that
someone had killed the father of Ratikanta Rout. He went to
the spot and found 8 to 10 persons present at the spot. He
entered in the said house and found the deceased lying on the
ground between the staircase and the drawing room. He
specifically deposed that the informant was not present at the
time of his arrival and she was in the house of her younger
son at Bhubaneswar. He further testified that the workers of
sand query were present in the said house and he along with
the workers who were present shifted the father of the
accused to Ghasipura hospital in the Scorpio vehicle of
Ratikanta and then to Bhubaneswar as per the instruction of
Ratikanta.
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pg. 8
Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
23. In the cross- examination, D.W.1 mentioned that he did not
make any enquiry to ascertain the cause of assault on the
deceased and also the name of the assailant. He deposed that
he did not see Debakant at the spot of occurrence. He fairly
admitted that he had not seen Debakanta after the occurrence.
Although, it was revealed that he has had problems with
Ratikanta and the latter had filed Anandapur P.S. case no.
94/2017, 117/2017 and 118/2017 are pending against him.
24. However, the deposition of D.W.1 was contradicted by the
testimonies of Himadri Rout (P.W 4), who deposed that on
23.06.2016 at evening, he along with Priyabrata Naik (P.W.5),
Narayan Swain (P.W.6) and Mukesh Rout (P.W.7) was
standing at Bancho chhak, located at a distance of about 50
meters from the house of the deceased and at that time, they
heard cries coming from the house of Ratikanta Rout. They
rushed into the house when they saw the accused running
towards Bhatakura village through the backside gate of the
house. He deposed that they saw the informant crying and
the deceased lying on the floor in a pool of his blood. On
enquiry, she told them that her husband was brutally
assaulted with a 'Kuradhi' by the appellant. More
importantly, he deposed to have found the 'Kuradhi' lying in
the same room where the victim was lying. The iron portion
of the 'Kuradhi' was having blood stains on it but the blood
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Signed by: BHABAGRAHI JHANKAR
Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
stains were not on the sharp side of the Kuradhi but on the
opposite side. His testimony as duly corroborated by P.W.5,
P.W.6, and P.W.7.
25. The trial court concluded that the testimony of D.W.1 cannot
be accepted to ascertain that P.W.1 was absent in the house at
the time of occurrence. More importantly, D.W.1 had deposed
that the workers of the sand quarry of Ratikanta were present
in the house, at the time of occurrence, which only
strengthens the case of prosecution.
26. However, trial court took note of one contradiction as pointed
out by the defence that P.W.1 had deposed that the
occurrence took place in the bed room situated in the North-
East side of the house. On the other hand, P.Ws. 4 to 7
deposed that when they entered into the house of the
informant, they found the deceased lying on the ground of the
TV room situated in the South-East corner of the said house.
Nonetheless, the trial court held that the discrepancy is
miniscule in nature and does not corrode the case of the
prosecution.
27. Ratnakar Rout (P.W.11) who belongs to village Bancho
deposed that on the morning of the date of incident, some
labourers with mason were engaged in a construction work in
his house and he was watching them. He saw the accused
pick up a Kuradhi from his house and keep it in a bag. While
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Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
he was doing so, Ratnakar claims to have heard him mutter
that he was going to 'finish' the father-and-son duo today. On
the same evening at about 6 P.M., he heard that the accused
had brutally assaulted his father.
28. In cross-examination, he admitted that he did not
communicate the fact that the accused was carrying a Kuradhi
to anybody his family and to Ratikanta or his mother or the
deceased. He also fairly admitted that nobody else had seen
the accused taking the Kuradhi from his house. He revealed
that the wife of the appellant had filed a suit for partition
against him in the Anandapur Court against the ancestral
property which they had inherited from their common
ancestor, Mani Rout.
29. The defence could not contradict his deposition or the fact
that he had not seen the accused keeping the Kuradhi in his
bag. There is no evidence on record to reach at a conclusion
that the said witness is having enmity with the accused to
depose against him.
30. Anandi Charan Baral (P.W.8) who belongs to village Banchho
deposed that, on 23.06.2016, at about 7 A.M., he had seen the
accused leaving his house with a Kuradhi. Nityanand Naik
(P.W.10) also deposed to have seen the appellant carrying a
Kuradhi on that fateful evening. No cross-examination was
made to the said witness to challenge the above evidence or to
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Signed by: BHABAGRAHI JHANKAR
Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
indicate that they had prior enmity with the appellant or that
they will derive any interest by conviction of the appellant.
31. The trial court accepted their evidence as an additional link to
prosecution case to show the preparation and pre-
determination of mind of the appellant for commission of the
offence.
32. The trial court also examined the chemical report of the items
seized from the spot of occurrence. Rashmi Ranjan Dash
(P.W.27), IIC of the investigation, deposed that he had sent
the exhibits including the blood stained pillow and 'Kuradhi'
(Axe) for chemical examination. The report of the chemical
examiner shows that the blood stain in the pillow is of O-
group and of human being. But the report shows that no
blood was found on the Axe.
33. The defence submitted that either the axe seized was not used
as weapon to assault the deceased or the axe was shown to be
seized to strengthen the FIR story which has been created
three days after the occurrence. It is not disputed fact that the
chemical examiner did not find any blood stains over the axe.
Admittedly, the occurrence Look place on 23.06.2016, the
seizure of weapon was made only on 26.06.2016 i.e. three days
after the occurrence. However, when the axe was sent to the
doctor on 29.08.2016 for his opinion regarding possibility of
the injury by the said weapon and the doctor found blood
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Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
stains on the blunt side and handle of the axe. The trial court
took note of the fact that the axe was sent for chemical
examination after four months of the occurrence. There is no
evidence on record either by P.W. 25 or by P.W. 27 that the
axe was sealed after it was seized. The trial court censured the
inordinate delay in sending the seized articles for its chemical
examination and the latches of the I.O in the investigation.
The trial court affirmed that the absence of blood stains might
have been removed due of improper preservation of the same.
When the doctor found stains over the weapon, then
subsequent non-availability of the same clearly shows
improper preservation of the weapon. The trial court held that
the report of the chemical examiner is only corroborative
piece of evidence and Even if, the chemical examination
report does not show the presence of blood stains over the axe
but the same cannot be a ground to disbelieve the sole
testimony of the mother (P.W.1).
34. The appellant was also made to undergo a polygraph test,
however, at this juncture; the trial court negatived its
relevance or the implications coming therefrom.
35. The trial court also noted from the evidence adduced by the
I.Os, that some latches were found in the investigation more
particularly non- availability of original papers in the U.D
Case No. 46, delay in sending the M.Os. for chemical
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Signed by: BHABAGRAHI JHANKAR
Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
examination. The trial court held that the same cannot be
treated as a ground to disbelieve the prosecution case and
give benefit of doubt to the appellant.
36. The Trial Court, upon examination of evidence at its level,
held that the appellant had motive to kill his father and the
motive was to extract money from him. The cogent and
convincing testimony of his mother (P.W.1) shows that the
accused hacked the head of the deceased by the axe which is
the vital part of the body. The testimony of P.Ws. shows that
the crime was pre-determined by the accused. So, prosecution
has clearly proved the intention on the part of the accused.
Accordingly, the trial court convicted the appellant
under Section 302/34 IPC with the aforesaid sentence.
III. APPELLANT'S SUBMISSIONS:
37. Learned counsel for the Appellant completely denied the
charges pressed herein and decried false implication. It was
submitted that the judgment of conviction and sentence
passed by the trial is highly illegal, arbitrary, perverse and not
sustainable in the eye of law.
38. It was submitted by the appellant that the order passed by the
trial court is based upon erroneous findings relying upon the
sole evidence of the eye witnesses who is not at all
trustworthy and moreover the said witness is a related
witness for which his deposition cannot be relied upon.
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Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
39. It was suggested that the trial court has not properly
appreciated the evidences in its proper prospective and has
convicted the appellant solely relying upon the deposition of
the eye witnesses without any corroboration.
40. The counsel for defence relied on her deposition that she had
not scribed the FIR and the scriber of the FIR has not been
examined and also she had reported the matter to the police
through her driver. It was also argued that the informant's
grand-daughter scribed the FIR who has not also been
examined. Furthermore, the informant was not sent to
hospital for medical examination, though she had sustained
injuries and pain due to kicks and fist blows inflicted upon
her.
41. The appellant also hinted at foul play. It was submitted that
due to some previous enmity regarding the partition of the
property, the informant along with the family members has
implicated the appellant in the aforesaid case in order to
harass him.
42. It was argued that there is neither any overt act on the part of
the appellant nor any nexus with commission of the alleged
offence, as a result of which the findings of the trial court that
the appellant is guilty of committing the murder is not based
on any kind of direct evidences nor there is any clinching
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Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
material available on record which would suggest that the
appellant is the author of the aforesaid crime.
43. It was further submitted that the depositions made by the
prosecution witnesses are contradictory to each other and
cannot be corroborative. The State Forensic Science
Laboratory (SFSL) Examination Report suggests that there is
no blood stain on the weapon of offence i.e., axe which was
seized by the police.
44. Even if the entire prosecution case is accepted, the Medical
Officer does not say that the injuries sustained by the
deceased are sufficient to cause death in course of ordinary
course of nature. In absence of such finding, it cannot be said
that the appellants intended to commit murder. In absence of
such opinion of the Medical Officer, the ingredients of Section
302 I.P.C. are completely absent. Therefore, the prosecution
story shall lie within purview of Section 304 of I.P.C.
IV. RESPONDENT'S SUBMISSIONS
45. Learned counsel on behalf of the prosecution countered the
submissions of the appellant by contending that the testimony
of P.W. 1 is quite clear and cogent. Their testimonies also
correspond to the post-mortem report and its details as
described by P.Ws. 4 to 7.
46. It was submitted that by considering the evidence of the P.Ws,
the prosecution has proved its case against the accused
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Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
beyond all reasonable doubt. There may be certain latches and
miniscule episodes of procedural negligence but there are no
any materials omissions and contradictions on the part of the
prosecution witnesses and investigation to disbelieve its case.
47. The prosecution submitted all in favour of the findings
returned by the Trial Court in holding the accused to be the
author of the crime. According to him, the Trial Court on
detail analysis of evidence on record did commit no error in
returning the finding that the prosecution has established its
case against the accused in causing the murder of Narayan
Rout beyond reasonable doubt and therefore, the judgment of
conviction and order of sentence are not liable to be interfered
with.
V. COURT'S ANALYSIS AND REASONING:
48. Keeping in view the submissions made, we have carefully
read the judgment passed by the Trial Court. We have also
bestowed our due attention to the evidence on record, both
oral and documentary.
49. At the outset, there is no dispute over the fact that the
deceased, Narayan Rout, met a homicidal death, which has
been well established through the doctor conducting the
autopsy over the dead body of the deceased and in view of
his opinion remaining unchallenged as to the cause of death.
Coupled with the undiscredited testimony of the eye-witness
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Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
(P.W.1) and its corroboration by other witnesses who saw the
appellant packing and later carrying the weapon, there is little
doubt about the nature of the death emanating from the
prosecution.
50. In the given case, we cannot help but notice that the story
embroidered by the prosecution is dominantly based on the
testimony of P.W. 1. It is no doubt that there is only one eye
witness who is also a wife of the deceased as well as mother
of the appellant. But it is well-settled that it is quality of
evidence and not quantity of evidence which is material.
Quantity of evidence was never considered to be a test for
deciding a criminal trial and the emphasis of Courts is always
on quality of evidence. So, the argument of the defence
against presence of only one eye-witness to the occurrence is
not enough to dilute the case of the prosecution.
51. The principle of law is also says that a conviction can be based
on sole eye witness testimony.1 The rider, however, remains
that in order to draw the inference as to the guilt of the
accused from such testimony the eye-witness shall be wholly
reliable. This is the test of Section 134 of Evidence Act.
52. Here, the eye-witness is not only the wife of the deceased but
also the mother of the appellant. It is a mother's most basic
Amar Singh v. State (NCT of Delhi), (2020) 19 SCC 165; Sunil Kumar v. State (NCT of Delhi),
(2003) 11 SCC 367
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Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
instinct to protect his or her child, when a kid is in trouble.
However, in this case, P.W.1 has come to terms with the fact
that her son has murdered her husband and as a witness, she
has risen to the occasion to make sure that justice is delivered
against the appellant for his crimes. On the other hand, the
defence has been unable to discredit the testimony of P.W.1
satisfactorily. Per se, their accusation against P.W.1 is
farfetched; based on conjecture and surmises.
53. The defence has also tried to establish that the informant was
not at all present at the spot of occurrence with the testimony
of D.W.1. However, the same deposition is untrustworthy and
unreliable as already refuted by P.Ws. 4 to 7 and rightfully
affirmed by the trial court. In any event, such a hypothetical
reason would not be sufficient to discard credible eye witness
version.
54. The defence has also attempted to discredit the testimony of
P.W.1 by pointing out the discrepancy in the description of
the position of the injured body of Narayan in their house;
post-occurrence.
55. Here, we must mention that when eye witnesses give all
necessary details regarding assault, weapons and role played
by the accused and when the presence of the eye witness is
corroborated by other witnesses, in such circumstances, the
evidence of eye witnesses cannot be simply thrown out or
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Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
doubted on the basis of some trivial contradictions. In the
decision reported in, State of A.P. v. Pullagummi Kasi Reddy
Krishna Reddy,2 the Supreme Court has observed that minor
contradictions and omissions in the evidence of a witness are
to be ignored if there is a ring of truth in the testimony of a
witness. Even in case of trained and educated persons,
memory sometimes plays false and this would be much more
so in case of woman who saw her son kill her husband. Plus,
she had been ruthlessly assaulted by the appellant.
56. The evidence given by a witness would very much depend
upon his power of observation and it is possible that some
aspects of an incident may be observed by one witness while
they may not be witnessed by another though both are
present at the scene of offence, and therefore, it would not be
right to reject the testimony of such witnesses merely on the
basis of minor contradictions. The fact that P.W.1 mentioned
the wrong position of the injured body of the deceased can be
ignored. Ergo, in absence of any satisfactory argument by the
defence, the testimony of P.W. 1 stands credible.
57. Moreover, the version adduced by P.W 1 is duly corroborated
by the testimony of P.W. 12 and the post-mortem examination
report. The Doctor conducting the autopsy over the dead
body of the deceased has opined that the death was due to
(2018) 7 SCC 623
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Date: 18-May-2023 13:57:33
shock and haemorrhage caused by mortal wounds inflicted
on the body and the head. It has also been opined by P.W. 12
that the wounds could have been inflicted by the weapons
discovered by the police. The evidence as above has remained
unimpeached.
58. Next, the defence has stated that the Medical Officer did not
opine that injuries sustained by the deceased are sufficient to
cause death in course of ordinary course of nature. In absence
of such an opinion, the appellants should not be tried under
Section 302 but Section 304 of IPC. We are unable to accept
this contention in light of the third clause of Section 300 IPC.
It speaks of an intention to cause bodily injury which is
sufficient in the ordinary course of nature to cause death. The
emphasis here is on the sufficiency of the injury in the
ordinary course of nature to cause death. The sufficiency is
the high probability of death in the ordinary way of nature
and when this exists and death ensues and the causing of
such injury is intended the offence is murder.
59. In the instant case, the appellant assaulted the deceased by
means of an axe causing an injury on the head which can be
said to be such an act with full knowledge that it would in all
probability cause his death. From the evidence on record, it
appears that there was no provocation from the side of the
deceased. It is also revealed that the appellant prevented the
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Date: 18-May-2023 13:57:33
informant from leaving the spot and then, assaulted her by
punches and kicks.
60. Again, the appellant took undue advantage of the situation
and acted in a most unusual or cruel manner, as result of
which, a precious life was lost. On top of that, depositions of
P.W.8 and P.W.11 indicate that the whole act could've been
premeditated. That apart, the Court finds that none of the
exceptions enumerated in Section 300 IPC to be applicable to
the present case. The victim though received a single injury
but it was on a vital part. If it had been an injury on any other
part of victim's body with no imminent danger of death,
things would have been different, even if he had succumbed
to it.
61. Sometimes the nature of the weapon used, sometimes the part
of the body on which the injury is caused, and sometimes
both are relevant. The determinant factor is the intentional
injury which must be sufficient to cause death in the ordinary
course of nature. If the intended injury cannot be said to be
sufficient in the ordinary course of nature to cause death, that
is to say, the probability of death is not so high, the offence
does not fall within murder but within culpable homicide not
amounting to murder or something less.
62. In the light of these principles, we proceed to consider the
evidence of P.W. 12, which was tendered at the trial. The
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injuries were, no doubt, fatal. A scrutiny of these injuries
evidence strong blow on the head. The injury was grievous
and evidently sufficient in the ordinary course of nature to
cause death. Besides, the weapons used in the occurrence are
of considerable importance. A deadly weapon is designed to
cause death, for instance, a gun, a bomb, a rifle, a knife or
even a sword in this case. A thing not so designed may also be
used as a weapon to cause bodily injury and even death, such
as the back side of the axe. The use of the axe (kuradhi) by the
appellant is symptomatic of an intention to kill. The above
inferences are enough for us to hold that this case is being
appropriately dealt under Section 302 IPC.
63. The appellant has also questioned the veracity of the
independent witnesses, P.Ws. 4 to 7. The have decried a case
of bias for they were allegedly seen in the neighbourhood
where the occurrence had taken place. Due to this, the counsel
for the appellant has challenged their depositions as
independent witnesses.
64. Indeed, one of the earliest statements with respect to
independent witnesses in criminal cases was made by the
Supreme Court in Dalip Singh v. State of Punjab,3 wherein
this Court observed:
1953 AIR 364
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"A witness is normally to be considered
independent unless he or she springs from sources
which are likely to be tainted and that usually
means unless the witness has cause, such as
enmity against the accused, to wish to implicate
him falsely. Ordinarily a close relative would be
the last to screen the real culprit and falsely
implicate an innocent person."
65. We think, it would be unreasonable to contend that evidence
given by P.W. 4 to 7 should be discarded only on the ground
that they were seen in that neighbourhood and/or knowledge
of the occurrence. The mechanical rejection of such evidence
on the sole ground that it is partisan would invariably lead to
failure of justice. While no hard and-fast rule can be laid
down as to how much evidence should be appreciated, in
absence of any credible evidence by the appellants to the
contrary, the plea that such evidence should be rejected
because it is partisan cannot be accepted as correct.
66. Next, we have noticed that the trial court has taken note of
faults and latches in the investigation procedure at several
points. It was urged that the opinion of the doctors that the
cause of death was asphyxia due to strangulation is not
supported by materials and this vital aspect has been ignored
by the courts below. It is trite in law that the accused is
entitled to benefit of doubt, when there is contradiction
between medical and ocular evidence and latches in
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Date: 18-May-2023 13:57:33
investigation. However, Defect in the investigation by itself
cannot be a ground for acquittal.4 Investigation is not the
solitary area for judicial scrutiny in a criminal trial. Where
there has been negligence on the part of the investigating
agency or omissions, etc, which resulted in defective
investigation, there is a legal obligation on the part of the
court to examine the prosecution evidence dehors such lapses
carefully to find out whether the said evidence is reliable or
not and to what extent it is reliable and as to whether such
lapses affected the objects of finding out the truth.
67. In the present case, there are considerable latches and lapses
in the investigation which has impacted other substantial
evidence such as the chemical report, however, the
depositions of the P.Ws. are reliable and consistent to the
extent that it forms an unbroken chain of circumstances to
keep the prosecution case unaffected. The defence has been
blatantly unsuccessful in rebutting their claim.
68. The evidence in this case is clear to the effect that the
appellant was clearly involved in this crime. The prosecution
has adduced sufficient evidence to show that the appellant
was present at the house of the informant at the time of the
crime. The defence has been blatantly unsuccessful in
C. Muniappan and Others vs State of Tamil Nadu, (2010) 9 SCC 567; Chandrakant Luxman v State
of Maharashtra, (1974) 3 SCC 626; State of Karnataka v. K. Yarappa Reddy (1999) 8 SCC 715;
Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC 57/
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rebutting their claim. Furthermore. The samples collected
during the investigation and the later post-mortem also
solidifies the story of the prosecution.
69. It is significant to notice that the defence has been unable to
provide a satisfactory explanation to the accusations of the
prosecution save rebut them effectively. We are aware of the
fact that it is not necessary for the appellant to adduce
evidence in their favour and they can rely on the evidence
adduced by the prosecution to show that the prosecution has
not succeeded in establishing the case beyond reasonable
doubt. In the present case, the entire evidence has already
been discussed and it has been found that the circumstances
relied on by the prosecution have been established. Herein,
the non-explanation or the false explanation given by the
appellant person is yet another circumstance which go against
them.
VI. CONCLUSION:
70. There is no reason to believe that the appellant has been
falsely implicated in this case. No such suggestion was made
by the witnesses or the investigating officer. All the
circumstances relied on by the prosecution have been proved
and they form a chain which leads to the only conclusion that
the offence must have been committed by the appellant
persons.
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71. The result is that the appeal is without merit and the same is
liable to be dismissed. We do so, confirming the conviction
and sentence passed by the court below.
72. Accordingly, this Appeal is dismissed.
( Dr. S.K. Panigrahi )
Judge
D. Dash, J. I agree.
( D. Dash )
Judge
Orissa High Court, Cuttack,
Dated the 17th May, 2023/ B. Jhankar
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Signed by: BHABAGRAHI JHANKAR
Designation: Secretary
Reason: Authentication
Location: OHC, Cuttack
Date: 18-May-2023 13:57:33
