Orissa High Court
Sanu @ Sonu Majhi vs State Of Odisha on 19 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA NO.267 OF 2016
In the matter of an Appeal under section-374(2) of the Code of
Criminal Procedure and from the judgment of conviction and order of
sentence dated 22nd February, 2016 passed by the learned Sessions
Judge, Rayagada in C.T. Case No.102 of 2013 arising out of G.R. Case
No.91 of 2013 corresponding to Tikiri P.S. Case No.29 of 2013 of the
Court of learned J.M.F.C., Kashipur.
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Sanu @ Sonu Majhi .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
=================================================
For Appellant - Mr. Devasish Panda,
Advocate.
For Respondent - Mr. S.K. Nayak,
Addl. Government Advocate.
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING : 11.05.2023 : DATE OF JUDGMENT:19.05.2023
D.Dash, J. The Appellant, by filing this Appeal, has assailed the judgment of
conviction and order of sentence dated 22nd February, 2016 passed by the
learned Sessions Judge, Rayagada in C.T. Case No.102 of 2013 arising
out of G.R. Case No.91 of 2013 corresponding to Tikiri P.S. Case No.29
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of 2013 of the Court of learned Judicial Magistrate First Class (J.M.F.C.),
Kashipur.
The Appellant (accused) has been convicted for commission of
offence under section-302 of the Indian Penal Code, 1860 (for short 'the
IPC') and accordingly, he has been sentenced to undergo imprisonment
for life.
2. Prosecution case is that accused and his wife-Biskudi(P.W.8) in
view of the dissension between them were living in separate houses in
the same village. The accused under the influence of liquor often used to
harass his wife (Bisikudi-P.W.8). On 30.03.2013 evening, the accused
came to the house where his wife was residing by taking the said house
on rent. He took away the Mahua flowers collected by his wife. So
Biskudi (P.W.8) protested; the accused then assaulted her and threatened
to take away her life. Sometime later, the accused came out of his house
carrying a knife in his hand and was proceeding to the house of his wife,
where her wife was residing. On the village road, one Goi Majhi, who
happens to be the cousin of the accused obstructed the accused in order to
prevent him from assaulting his wife-Biskudi. The accused then is stated
to have stabbed that Goi Majhi near his left ribs. Receiving the stab
injury, Goi fell down and died at the spot. The villagers rushed to the
place and guarded the dead body for the night.
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Hana Majhi, another cousin of the accused (P.W.5) lodged a report
written by Bidyadhar Duria (P.W.1) with the Inspector-In-Charge (IIC)
of the Tikiri Police Station. The IIC having received the written report,
treated the same as F.I.R. (Ext.1) and registering the case, took up the
investigation.
3. In course of investigation the Investigating Officer (P.W.9)
examined the Informant (P.W.5) and the scribe of the F.I.R. (P.W.1). He
then visited the spot and prepared the spot map (Ext.6). The dead body of
Goi was found lying at the spot. The I.O.(P.W.9) held inquest over the
dead body in presence of witnesses, prepared the report-Ext.2. He then
seized the blood stained and sample earth under the seizure list marked as
Ext.3 and also blood stained knife being produced by P.W.6 under
seizure list Ext.4. The dead body of Goi was sent for postmortem
examination by issuing necessary requisition. The I.O. (P.W.9) examined
other witnesses in the village and after postmortem examination seized
wearing apparels of the deceased which were produced before him by the
Police Constable, who had deputed to carry the dead body for
postmortem examination. The accused being arrested was medically
examination. His wearing apparels as well as the nail clipings collected
by the Medical Officer were also seized under seizure list, Ext.9. In
course of investigation, the I.O. (P.W.9) also made the query seeking the
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opinion of the Doctor (P.W.10), who had conducted the autopsy over the
dead body of the deceased as regards the possibility of injury being
caused by that knife. The opinion was received. The accused was
forwarded in the custody to the Court. The incriminating articles wsere
sent for chemical examination to the Regional Forensic Science
Laboratory through Court and the report to that effect Ext.13 was
received. On completion investigation, the I.O. (P.W.9) submitted the
Final Form placing the accused to face the Trial for commission of
offence under section-302 of the IPC.
4. Learned J.M.F.C., Kashipur having received the Final Form as
above, took cognizance of the above noted offence and after observing
the formalities committed the case to the Court of Sessions. That is how
the Trial commenced by framing charge for the said offence against the
accused.
5. In the Trial, the prosecution examined in total ten(10) witnesses.
As already stated P.W.5 is the Informant, who had lodged the F.I.R.
(Ext.1) and scribe of the said F.I.R. is P.W.1. The wife of the accused
centering whom the incident had taken place has been examined as
P.W.8. The mother of the deceased who is stated to have seen the
incident has come to the witness box as P.W.4, P.Ws. 2, 3 and 6 are the
other witnesses to the occurrence. P.W.7 is a villager of the neighbouring
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village who having arrived on the following morning had gone with the
Informant (P.W.5) to the Police Station. The Doctor who had conducted
the postmortem examination over the dead body of the deceased has been
examined as P.W.10 and the Investigating Officer is P.W.9.
The prosecution besides leading the evidence by examining the
above witnesses has also proved the several documents which have been
admitted in evidence and marked Exts.1 to 13. Out of those, the F.I.R. as
already stated is Ext.1; whereas the inquest report and postmortem report
as Exts.2 and 10 respectively. The Chemical Examiner's report is Ext.13
and the opinion of the Doctor is Ext.11/1.
6. The Trial Court having gone through the evidence of Doctor
(P.W.10), who had conducted autopsy over the dead body of the
deceased and his report, Ext.10 as also the evidence of the I.O. (P.W.9)
and the inquest report, Ext.2 as well as the evidence of other witnesses
who had seen Goi sustaining stab injury on his chest and lying dead; has
come to the conclusion that Goi had met homicidal death. In fact, this
aspect of the case was not under challenge before the Trial Court and that
has also been the situation before us.
7. The defence plea is that of complete denial and false implication.
The accused has led no evidence in support of his defence.
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8. The, the Doctor holding postmortem examination over the dead
body of Goi (P.W.10) has found the penetrating wound on the chest wall
on the left situated with the 2 cm left to the nipple (left) of the size
2cmX2cmX5cm deep. The corresponding internal injury on dissection
has also been noted and it is his evidence that the penetrating wound had
touched the heart. In view of the above, he has stated the death to have
occurred on account of massive bleeding resulting from the rapture of
heart. All these above clear noted in the postmortem Ext.10. The I.O.
(P.W.9) has also noted such injury which he had seen in the inquest
request report, Ext.2. Other witnesses have also stated that the deceased
had received such injury on his chest. The Doctor (P.W.10) also deposed
that said injury which he noticed on the chest of the deceased would be
possible by the knife which was examined by her being sent by the I.O.
(P.W.9). All these evidence has remained totally un-assailed. In view of
the above, we find absolutely no difficulty in agreeing with the finding of
the Trial Court that death of Goi was homicidal in nature.
9. Learned Counsel for the Appellant (accused) attacking the finding
of the Trial Court that it is the accused who is the author of the stab
injury found on the chest of the deceased which has caused his death
submitted that the evidence of witnesses examined from the side of the
prosecution in support of the same are not at all reliable. According to
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him, the Trial Court having not properly analyzed the evidence of all
those witnesses, more particularly P.W. 4 and P.W.8 has erred in holding
the accused guilty for committing the murder of Goi. Inviting our
attention to the deposition of all the prosecution witnesses, he submitted
that under no circumstance the prosecution can be said to have proved the
fact that it is the accused who had caused the stab injury on the chest of
the deceased beyond reasonable doubt. He, therefore, submitted that in
view of the variance on material particulars as to the happening of the
incident and the role of the accused as it appears in the evidence of
witnesses, the accused is entitled to the benefit of doubt.
10. Learned Counsel for the State (Respondent) submitted all in favour
of the finding returned by the Trial Court. According to him, the
evidence of eye witnesses being very clear that the accused being
obstructed by the deceased on his way as to the house of his wife holding
the knife with a view to prevent him from doing harm to his wife caused
the stab wound on the chest of the deceased and therefore, looking at the
fact that the parties hail from the tribal pocket of the State and are rustic
Adivasis being members of the Scheduled Tribe; such variance in their
evidence as pointed out by the learned Counsel for the accused are not to
be given any such importance which the Trial Court has thus rightly
ignored.
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11. Keeping in view the submissions made, we have carefully read the
impugned judgment of conviction passed by the Trial Court. We have
also gone through the depositions of the witnesses, P.Ws. 1 to 10
examined from the side of the prosecution and have perused the
documents admitted in evidence and marked Exts.1 to 11.
12. It is the evidence of P.Ws. 2, 3, 4, 5, 6 and 8 that the wife of the
accused namely, Biskudi was living separately from the accused in the
same sahi of the village and they all have stated that accused often used
to quarrel with his wife and that in fact was the reason for Biskudi to
have her separate stay with her children. The accused was thus not
pulling on well with his wife has been stated by all the above witnesses
in clear and unequivocal terms. The witnesses, P.Ws. 2, 3 and 8 have
stated that on the relevant date, the accused had gone to the house of his
wife and having taken away the Mahua flowers collected and dried by
her had sold the same. It is also there in the evidence that when the wife
of the accused had objected, accused got enraged and assaulted her. The
evidence of the above witnesses on this factual aspect have not
challenged from the side of the accused.
It is the evidence of P.W.2 that in the evening wife of the accused
complained about the fact that how she was being harassed by the
accused and of that would go on, how she would maintain her five
CRLA NO.267 OF 2016
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children which was the concern that she expressed. It is stated by P.W.2;
that the accused then enraged and assaulted her. He also threatened to
take away her life. He has further stated that accused went to his house
and when he came out with the knife from his house, Goi (deceased) who
is the cousin of the accused was standing in front of his house which
adjoins the house of the accused. He has further stated that seeing the
mood of the accused, Goi (deceased) intervened and obstructed his
(accused) way in order to prevent him from going to his wife, Biskudi.
This witness stated to be present at the relevant time in his house and
from there to have seen the incident. He has further narrated that no
sooner did Goi blocked the way of the accused and thus, prevented him
to protest further, the accused stabbed on his left side chest by means of a
knife for which the Goi (deceased) fell down. He also states to have
immediately rushed to the spot and found Goi dead and as per his
evidence, the accused then fled away. During cross-examination although
the attention of this witness P.W.2 has been drawn by stating that he has
told before the police that he had learnt about the incident from the
mother of the deceased (P.W.4) and had not seen the incident himself in
his own eyes, we find that the same has not been proved through the I.O.
(P.W.9). For abundant caution lost it might have been a genuine omission
on the part of the learned defence Counsel, we have verified the
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statement of this witness recorded under section-161 of the Cr.P.C. The
verification reveals that this witness P.W.2 had very much told before the
Police that he had seen the incident in his own eyes and not that he had
only heard from the mother of the deceased (P.W.4). Thus the version of
P.W.2 as to have seen the incident is not at all an improvement. As
regards the conduct of this witness, to have not intervened, when the
accused quarreled with his wife; which is highlighted as a feature to
doubt the version; we are not impressed that the same would stand on the
way of acceptance of the evidence of P.W.2 as regards the subsequent
happening. During cross-examination, he has no doubt stated that
accused was drunk at the relevant time, but it is stated that he was quite
in sense. We find that in so far as the evidence of this witness relating to
the last leg of the incident is concerned, where the accused is stated to
have stabbed the deceased on his chest, no such material has been elicited
from the P.W.2 to cast any doubt upon his version or view his evidence
with suspicion.
P.W.3 is the witness who had arrived at the spot after Goi
(deceased) received the injury and when he was lying dead in front of his
house with stab injury on his chest. He has however stated that mother of
Goi (P.W.4) immediately told him that accused while proceeding with a
knife towards the house of his wife, when came with the knife, the
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deceased intervened and when he obstructed him from proceeding
further, he was stabbed by the accused on his chest. This evidence of
P.W.3 shows the immediate disclosure of P.W.4, regarding the role of the
accused.
Now, let's go to the evidence of P.W.4. She has been examined in
Court through an interpreter being not able to speak Odia and only able
to express herself in Kui dialect. The interpreter who is P.W.8 is a
Process Server of the Court and he having been administered oath to
interpret the statement of P.W.4 truthfully, has the administered oath to
P.W.4 in Kui language. It is the evidence of P.W.4 that two years before
it was around 8 pm, she was sitting in the front verandah of her house,
when accused came with a knife from his house and was going towards
the house where his wife-Biskudi was residing. She has stated that when
accused arrived in from of their house, her son Goi prevented him from
proceeding further in assaulting his wife by that knife. Her further
evidence is that, the accused for such act of Goi got enraged and
immediately stabbed with that knife in his left ribs below the arm pit.
This part of the evidence of P.W.4, what we find has not at all been
shaken.
Learned Counsel for the accused submitted that the evidence of
this witness when is to the effect that she having intervened had sustained
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injury on her palm by that knife and was medically examined; the injury
report having not been proved; her evidence ought to be excluded from
consideration. First of all it be stated that the deceased had absolutely no
enmity with the accused and as per the evidence of all the witnesses the
deceased having gone to save the life of the wife of the accused which he
apprehended to be in danger by preventing the accused has been victim
of the circumstance. The prosecution of course has not proved the injury
report of P.W.4. But since it is not stated by the P.W.9 that he has sent
this P.W.4 who is rustic Adivasi woman hailing from rural background,
for medical examination, for such simple reason when there is no other
material on record to view the evidence of P.W.4 with suspicion or doubt
her evidence as regards the role of the accused, we are afraid to accept
the submission of the learned Counsel accused to eschew the evidence of
P.W.4 in entirety. The evidence of P.W.3 further supports the evidence of
P.W.4 that she immediately had disclosed before him about the incident
and role of the accused therein.
Now comes the evidence of P.W.5. He also an eye witness and has
stated that in the same line as regards all the happenings as has been
described by P.W.4. But more importantly, it has been stated by him that
the mother of the deceased (P.W.4) had rushed to the spot to rescue his
son and accused had dealt a blow by knife on her right palm. So, the
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evidence of P.W.4 receives full corroboration from the evidence of P.W.5
that she was also injured in the said incident, when she had been to
rescue to her son. Thus, merely because the I.O. has not got P.W.4
medically examined, that would not be enough to disbelieve P.W.4
altogether in saying that her testimony is not reliable and she is not a
truthful witness.
Learned Counsel for the accused placing the statement of P.W.5
elicited during cross-examination that by the time he came out again, Goi
had fallen on the ground submitted that for the same, he cannot be taken
to be an eye witness to have seen accused stabbing the deceased in our
considered view is also not acceptable. The witness has narrated the
details regarding the incident and has stated to have rushed to the spot.
When he has further stated that one Sarathi Majhi examined as P.W.6 had
snatched away the knife from the accused, the same is receiving the
support from the evidence of P.W/6 as well as the evidence of I.O.
(P.W.9) that Sarathi (P.W.6) had produced the knife which was seized in
course of investigation. Therefore, the evidence of this witness that when
he came out again, Goi had already fallen on the ground cannot be taken
in that way to say that he had not seen the accused stabbing the deceased.
When it is not the case of the defence that accused had received any
injury in course of incident, the stray statement of P.W.5 that he has seen
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the accused with head injury, when he was at the police station is of
absolutely no significance and the submission of the learned Counsel for
the accused that the case of the prosecution for the said non-explanation
is to be doubted is not acceptable. When P.W.6 too says that having
arrived at the scene, he saw Goi to have fallen on the ground and accused
fleeing away, he has however clearly stated to have witnessed the
occurrence from his house.
13. For the discussion of evidence as above, we are of the considered
view that the prosecution has established the charge against the accused
beyond reasonable doubt by leading, clear, cogent and acceptable
evidence. The Trial Court thus is found to have committed no error in
holding the accused guilty for the offence under section-302 of the IPC
and sentencing him thereunder.
14. In the result, the Appeal stands dismissed. The judgment of
conviction and the order of sentence impugned in this Appeal are hereby
confirmed.
(D. Dash),
Judge.
Dr.S.K. Panigrahi, J. I Agree.
Signature Not Verified (Dr.S.K.Panigrahi),
Digitally Signed
Signed by: NARAYAN HO
Designation: Personal
Judge.
Narayan Assistant
Reason: Authentication
Location: OHC
Date: 22-May-2023 18:37:16
CRLA NO.267 OF 2016
