Orissa High Court
Durjan Majhi vs State Of Orissa on 19 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.23 of 2016
In the matter of an Appeal under section 383 of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and
order of sentence dated 31.03.2016 passed by the learned Sessions
Judge, Phulbani in Sessions Trial No.265 of 2012 arising out of G.R.
Case No.229 of 2012 of the Court of learned J.M.F.C., G.Udayagiri.
Durjan Majhi .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.Anirudha Das,
Advocate
For Respondent - Mr.Sitikant Mishra,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K.PANIGRAHI
Date of Hearing :12.05.2023 : Date of Judgment:19.05.2023
D.Dash, J. The Appellant, by filing this Appeal, from inside the jail, has
assailed the judgment of conviction and order of sentence dated
31.03.2016 passed by the learned Sessions Judge, Phulbani in S.T. Case
No.265 of 2012 arising out of G.R Case No. 229 of 2012 corresponding
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to Tikabali P.S. Case No.65 of 2012 of the Court of the learned Judicial
Magistrate First Class (JMFC), G.Udayagiri.
The Appellant (accused), having faced the Trial with another
namely Biju @ Bijesh Pradhan, standing charged for commission of
offence under section 302/34 of Indian Penal Code, 1860 (in short;"the
IPC"); said Biju @Bijesh Pradhan has been acquitted of the charge. The
Appellant (Accused) has been convicted for commission of offence
under section 302 of the IPC and sentenced to undergo imprisonment for
life with payment of fine Rs.500/- (Rupees Five Hundred), in default to
undergo rigorous imprisonment for 1 (one) year.
2. Prosecution case is that on 24.08.2012 around 4 p.m., the husband
of Basanti Majhi (Informant-P.W.1), namely Kartika Majhi when was
inside the house, that Biju Pradhan (since acquitted) being armed with
thenga, entered in to the house and gave slaps to the deceased. It is
further stated that said Biju again gave lathi blows on the back of the
deceased for which he fell down. After that also Biju (since acquitted) is
said to have given one more lathi blow upon Kartika (deceased). This
accused is said to have then appeared at the place of occurrence being
armed with an axe and it is said that he inflicted several blows by means
of that axe upon the waist, thigh and head of the deceased causing
incised wounds. Basanti Majhi, the wife of the deceased (P.W.1) then
submitted a written report before the Assistant Sub-Inspector (ASI) of
Police in charge of Linepada Police Out Post. The fact was entered into
the station diary book maintained in the said Police Out Post and the
written report was sent to IIC, Tikabali Police Station for registration of
the case. The ASI (P.W.7), while sending the written report to Tikabali
Police Station for registration of the regular case took up preliminary
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investigation at his level. He had examined the complainant and other
witnesses. He too had recorded their statements, visited the spot and
prepared the spot map (Ext.5). The dead body of the deceased had been
sent for post mortem examination. Having held the inquest over the dead
body of Kartika in presence of the witnesses, he had prepared the
Inquest Report (Ext.1/1). The informant, who happens to be the wife of
the deceased (P.W.1) having been found to have been injured, was sent
for medical examination by issuing the requisition. He then as directed
handed over the investigation to the Sub-Inspector of Police in-charge of
Tikabali Police Station along with all the papers prepared. He arrested
the accused. One thenga had been seized from the house of Biju @
Bijesh Pradhan (since acquitted). It is stated that this accused Durjan
being arrested by giving the statement, took the police and other
witnesses to give recovery of the axe which had been kept in the heap of
fire wood and that being recovered by accused Durjan was handed over
to the I.O which was seized.
3. On completion of investigation, the Investigating Officer
(P.W.14) submitted the Final Form placing this accused and that Biju @
Bijesh Pradhan to face the trial for commission of offence under section
302 of IPC.
4. Learned JMFC, G.Udayagiri, having received the Final Form as
above, took cognizance of the said offence and after observing
formalities, committed the case to the Court of Sessions for Trial. That
is how the Trial commenced by framing charge for the said offence
against this accused and the other, who has been acquitted other namely
Biju @ Bijesh Pradhan, who have been convicted.
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5. In course of Trial, prosecution in total has examined fourteen (14)
witnesses. As already stated, the informant, who happens to be the wife
of the deceased is the star witness for the prosecution has been examined
first as P.W.1. P.W.3 and P.W.4 although were projected as eye
witnesses to the occurrence, they have resiled from their previous
version in course of investigation and thus on the request of the
prosecution, permission had been granted for their cross-examination.
The witnesses to the inquest are P.W.2 and P.W.8. The FIR which has
been lodged by P.W.1 had been scribed by another and that person has
been examined as P.W.6. The ASI of police of Linepada Police Out
Post, who had received the FIR which led to the registration of the case,
has come to the witness box as P.W.7 and P.W.9 is the Doctor who had
examined the informant (P.W.1) and accused. The witnesses to the
seizure are P.W.10 whereas P.W.11 and P.W.13 are the two witnesses to
the seizure of the axe at the instance of the accused, pursuant to his
statement in giving recovery of that axe. The Investigating Officer of the
case has come at the end as P.W.14.
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 Ext.17. Important of those are
the Post Mortem Report (Ext.2), whereas the Inquest Report is Ext.8/2.
Several seizure lists have been proved and marked Exhibits and of those
the important one is the seizure list (Ext.14) which relates to the seizure
of axe pursuant to the statement of this accused leading to the place of
keeping of that axe. The statement of the accused before taking the
police and other witnesses to the place of concealment of the axe has
been admitted in evidence and marked Ext.13. The Injury Report of
P.W.1 is Ext.8/2.
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6. Defence plea is that of complete denial and false implication.
However, no evidence either oral or documentary has been tendered
from the side of the accused.
7. Learned counsel for the Appellant (Accused) submitted that the
evidence of the solitary witness (P.W.1) has not been critically
examined and perhaps it has been forgotten while doing so that she is
none other than the wife of the deceased and was highly interested in
the success of the prosecution. He, further submitted that under no
circumstances, the evidence of P.W.1 can be said to be of sterling
quality. He further submitted that the Trial Court has failed to take note
of the fact that there was tendency on the part of this witness (P.W.1) to
implicate another that is Biju @ Bijesh (since acquitted) and when in the
same incident, the role of Biju @ Bijesh as has been stated by P.W.1
has been disbelieved by the Trial Court in holding that it is wholly
unsafe to record a conviction against that Biju @ Bijesh; the Trial Court
should not have accepted the evidence of that very witness (P.W.1) in
respect of the role stated to have been played by this accused. According
to him, the Trial Court having not at all appreciated the solitary
testimony of witness (P.W.1) which forms the basis of conviction, since
has rendered the finding; that is liable to be set aside.
8. Learned counsel for the State refuting the above submission
contended that from the beginning it has to be kept in mind that P.W.1 is
a rustic adivasi, hailing from the rural area. He submitted that since the
Trial Court has analyzed the evidence in a just and proper manner and
bestowing due attention from all possible angles has held the accused
guilty for committing the offence punishable under section 302 of the
IPC, the same is not liable to be tinkered with.
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9. Keeping in view the submissions made, we have carefully read
the impugned judgment. We have also perused the depositions of all the
prosecution witnesses (P.W.1 to P.W.14) and have perused the
documents admitted in evidence from the side of the prosecution which
have been marked Ext.1 to Ext.17/1.
10. The Trial Court have examined the evidence of P.W.5, who had
conducted the Post Mortem Examination over the dead body of Kartika
and on going through his report (Ext.2) as also other witnesses, who had
seen the deceased with injuries all over his body and his condition which
have gone unchallenged has held the prosecution to have proved beyond
reasonable doubt that Kartika met a homicidal death.
In fact there is no such challenge on that score from the side of
this accused before us. Be that as it may, we find from the evidence of
P.W.5, the Doctor who had conducted autopsy over the dead body of the
deceased Kartika that he had noticed four lacerated injuries on the
person of the deceased; one on the scalp; another over the right parietal
eminence; the third one was near the pinna and the last one near the left
parietal eminance. He has clearly stated that all such injuries are ante
mortem in nature and the death was due to the cardio of respiratory
failure on account of all the injury received by that Kartika. The report
of the Doctor P.W.5 is very vivid on that score. The defence has simply
thrown some hypothetical suggestions which have not received any
support and we are unable to comprehend for a moment as to for what
purpose that was done, when the very plea of the defence is that of
denial.
In view of the above available evidence on record, the Inquest
Report proved as Ext.8/2 as well as the evidence of other witnesses, who
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had seen deceased having been sustained with severe injuries on the
body being further taken into account, we find no difficulty to accept the
conclusion arrived on that score by the Trial Court.
11. Admittedly, the sole eye witness to the occurrence is P.W.1 on
whose evidence the prosecution relies much upon. In fact, besides
leading the evidence through her (P.W.1-Informant), the prosecution
has the other evidence with regard to the recovery of an axe said to
have been made at the instance of the accused from the place known to
him and any other being adivaasi people.
12. It is the settled position of law that there is no bar to base a
conviction relying upon the testimony of a solitary witness. But in doing
so, the court must be satisfied that the evidence of that solitary witness is
of sterling quality and that witness is wholly reliable so as to secure
conviction safely. The evidence of that solitary sole witness must be
above board. The principle is based upon the provision contained in the
Evidence Act that it is the quality of evidence which matter and not the
quantity. Furthermore, if in a given factual situation where only one
person was present and none else could have seen the occurrence when
the possibility of any other/s even coming to witness the occurrence is
ruled out, the evidence of that sole witness matters and the prosecution
cannot be blamed for not examining witnesses more than one as it was
not possible.
Before proceeding to examine the evidence of P.W.1, we must
keep in mind that she is a rustic adivasi lady of 50 years of age.
Therefore, the microscopic appreciation of her evidence may enure
undue advantage to the accused to the prejudice of the prosecution
which is to be avoided. However, the evidence of P.W.1 must solidly
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form the foundation as regards the occurrence and must be free from any
major contradiction or major omission amounting to contradiction.
She has stated that at the relevant time, she was taking rice in her
house and her husband was standing near the entrance door of the house.
Her evidence is that said Biju @ Bijesh came to her house, assaulted on
his head by hand, took him inside the house and made him lie on the
ground. So the beginning part of the incident relates to the role of that
Biju, who has been acquitted and we are told that the State has not filed
any Appeal challenging said acquittal. She then states that this accused
Durjan came holding an axe and dealt blows on the head of her husband
causing bleeding injury leading to his death at the spot. At this stage, at
the cost of repetition, it be stated that evidence of this P.W.1 with regard
to the role of that Biju @ Bijesh has been disbelieved by the Trial Court
and so far as that part of the occurrence as has been stated by P.W.1, the
trial court has not felt it safe to be relied upon in holding the complicity
of that Biju @ Bijesh. The evidence of P.W.5, who is the Doctor, who
had conducted autopsy over the dead body of the deceased is that he had
noticed three lacerated injuries on the head and face of the deceased. It
is stated that all such injuries are by heavy sharp cutting weapon. When
it is stated by P.W.1 that said Biju had taken Kartika to the room
forcibly and made him lie on the ground, no such injuries in support of
the that version of P.W.1 have been found out in the version of P.W.5.
When it has been said that accused Biju has assaulted the deceased by
means of one thenga, the evidence of P.W.5 is silent on that score as
regards user of thenga in causing any injury upon the deceased. His
evidence is that the injuries are by heavy sharp cutting weapon.
Therefore, here we find that the tendency of P.W.1 in falsely roping in
that Biju @ Bijesh which has rightly been taken care of by the Trial
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Court. The FIR narration is that said Biju had assaulted by lathi on the
head of the deceased and gave four to five slaps on cheeks and thereafter
when Biju @ Bijesh again gave a blow by that lathi upon the deceased,
the lathi got split into two parts so the blows by lathi being with force,
medical evidence does not support the said version. This accused is said
to have assaulted the deceased by means of tangia on the west thigh
which is neither been stated by P.W.1 and nor the same receives any
support from the evidence of P.W.5. Such being the evidence of P.W.1
although principle of falsus in uno falsus in omnibus is not applicable in
India but as we find the evidence of P.W.1 in respect of the emergence
of Biju @ Bijesh and this accused as simultaneous and there is hardly
any time gap between the respective roles said to have been played by
this accused and that Biju @ Bijesh; we are unable to separate the grains
from the chaffs and the role of Biju @ Bijesh and this accused Durjan
being in course of one transaction in the incident, those are extricably
mixed up and thus inseparable.
13. The evidence of P.W.1 thus fails to pass through the test of
reliability and acceptability. Then even accepting for a moment that
accused Durjan by giving his statement had taken the police and other
witnesses to the place where the axe had been kept inside the heap of
firewood which was only known to him and had given recovery of the
same, we however find absence of any evidence to connect that axe with
the incident independently. Having held the evidence of P.W.1 to be
unsafe to be relied upon to fasten the guilt upon the accused with that
recovery evidence as above, the prosecution case does not stand
improved. Therefore, we are of the view that the judgment of conviction
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and order of sentence impugned in this Appeal cannot be sustained and
are liable to be set aside.
14. In the result, the Appeal stands Allowed. The judgment of
conviction and order of sentence dated 31.03.2016 passed by the learned
Sessions Judge, Phulbani in S.T. Case No.265 of 2012 are hereby set
aside. The Appellant (Accused) be set at liberty forthwith, if his
detention is not required in connection with any other case.
(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.23 of 2016
