Suri Dinabandhu vs State Of Orissa
2023 Latest Caselaw 6543 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                            JCRLA No.21 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 26.12.2015 passed by the learned Additional
    Sessions Judge, Chatrapur, Ganjam in Sessions Trial No.240 of 2013
    (09/12-GDC & 04/12-FTC) arising out of G.R. Case No.283 of 2011 of
    the Court of learned S.D.J.M., Chatrapur.


         Suri Dinabandhu                      ....          Appellant


                                   -versus-

         State of Orissa                      ....         Respondent

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

                 For Appellant     -     Mr.Pulakesh Mohanty,
                                         Advocate (Amicus Curiae)

                 For Respondent    -     Mr.S.S.Kanungo,
                                         Additional 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, from inside the jail, has

challenged the judgment of conviction and order of sentence dated

26.12.2015 passed by the learned Additional Sessions Judge, Chatrapur,

Ganjam in S.T. Case No.240 of 2013 (09/12-GDC & 04/12-FTC)

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arising out of G.R Case No. 283 of 2011 corresponding to Chamakhandi

P.S. Case No.73 of 2011 of the Court of the learned Sub Divisional

Judicial Magistrate (SDJM), Chatrapur.

The Appellant (accused), has been convicted for commission of

offence under section 302 of the Indian Penal Code, 1860 (in short, 'the

IPC'). Accordingly, he has been sentenced to imprisonment for life and

pay fine of Rs.20,000/- in default to undergo rigorous imprisonment for

six (6) months.

2. Prosecution case is that in the night of occurrence, the deceased

and the accused slept together inside the house. It was around 3 am in

the night, accused called Suri Eswari (P.W.2), the wife of Suri Simadri

(deceased) by knocking the door. When she got up, she found Suri

Simadri, her husband lying dead in his room with severe bleeding

injuries. Suri Eswari (informant-P.W.2) therefore lodged a written report

with the Inspector-in-Charge (IIC) of Chamakhandi Police Station

implicating this accused to have murdered her husband (deceased).

3. The IIC having receiving the said report, treated the same as FIR

and registering the case, took up investigation. He examined the

informant (P.W.2) and other witnesses, visited the spot and prepared

spot map (Ext.11) in presence of witnesses. He also held inquest over

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the dead body of the deceased in presence of the witnesses and prepared

the report (Ext.3). The incriminating articles seized were sent for

chemical examination through Court vide forwarding letter (Ext.16) and

the relevant report has been admitted in evidence and marked as Ext.17.

The Post Mortem examination over the dead body has been conducted

by the doctor (P.W.13) at the instance of the I.O. (P.W.15), the reports

to that above effect has been obtained.

On completion of investigation, the I.O. (P.W.4) submitted the

Final Form placing this accused to face the trial for commission of

offence under section 302 of IPC.

4. Learned SDJM, Chatrapur, having received the Final Form as

above, took cognizance of the said offence and after observing

formalities, committed the case to the Court of Additional session Judge,

Chatrapur by framing the charge for the said offence against this

accused.

5. In course of Trial, prosecution in total has examined fifteen (15)

witnesses. As already stated the wife of the deceased, who is the

informant and has lodged the FIR (Ext.10) is P.W.2 whereas the mother

of the deceased has been examined as P.W.3. The nephew of the

accused as well as the deceased has been examined as P.W.12. Some

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neighbours have come to depose in the Trial and they are P.W.5, P.W.6,

P.W.8, P.W.9, P.W.10 and P.W.11. The two Gram Rakhis of the village

are P.W.1 and P.W.7. The Doctor who had conducted autopsy over the

dead body of the deceased has come to the witness box as P.W.13. The

main Investigating Officer is P.W.15, P.W.4 is the Investigating Officer,

who further examined the witnesses already examined by P.W.15 and

submitted the Final Form.

The prosecution besides leading the evidence by examining the

above witness has also proved several documents which have been

marked as Ext.1 to Ext.17. Out of those the important are the FIR

(Ext.10), the Post Mortem Report (Ext.7), Inquest Report (Ext.3), report

of the Chemical Examiner (Ext.17). During trial, the weapon, Kati and

the lungi of the accused as well as his innerwear with other materials

have been produced as Material Objects (M.O.-I to M.O.-XII.

6. The Trial Court having examined the evidence of Doctor P.W.13

and his report(Ext.7), taking note of the injuries, their seats and nature

as well as positive opinion of P.W.13 has arrived at a conclusion that the

death of the deceased was homicidal in nature. In fact this aspect of the

case was not under the challenge before the Trial Court and that is also

the situation before us.

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The Doctor (P.W.13) while holding the Post Mortem Examination

over the dead body of Suri Simadri, has found multiple cut wounds

merging one another and forming a single large chopped wound over

the frontal aspect of the neck extending below the chin on the left side

and up to the angle of left side mandible. He has also noticed six (6)

number of cut wounds of various shapes and seizes occupying various

surface areas of cervical and thoracic vertebra deep with intervening

tags of intact skin present over the upper chest with the root of the neck

muscles and vessels being cut. Besides the above two cut wounds over

the postero medial aspect of left forearm present obliquely and the ulnar

boarder of the right forearm have been noted along with the multiple,

parallel, linear and superficial cut wounds of about ten(10) in number of

different sizes over the upper chest and shoulder. On dissection P.W.13

has found the followings:-

i. Trachea esophagus, external carotid artery, jugular veins have been cut.

ii. Body of C-5, C-6, C-7 vertebra have been cut into pieces. iii. All the neck vessels were cut.

iv. The underlying chest muscles were contused. v. Sub-sternal haematoma was present. vi. Rest all the viscera were intact and pale to a variable decree and the scalp, skull, meninges and brain were intact.

JCRLA No.21 of 2016 {{ 6 }}

It has been deposed by P.W.13 that all such injuries are ante

mortem in nature and have been caused by infliction of blows by means

of heavy sharp cutting weapon. The death is said to have resulted from

the hemorrhage and shock due to concomitants of above injuries. The

external injury which are six(6) numbers of cut wounds present over the

upper chest whereunder the root of the neck muscles and vessels were

cut, which correspond to the internal injuries no.1, 2 and 3 have been

said to be fatal and sufficient in ordinary course of nature to cause the

death. With such evidence on record, when we find that the P.W.13 has

reflected all those in his report Ext.7 and most of injuries have also been

noted by the Investigating Officer P.W.15 in his own language in the

inquest report Ext.3 and when other witnesses have also stated to have

seen the deceased lying dead with injuries on different parts of his body,

we find absolutely no difficulty in agreeing with the finding of the Trial

Court that Suri Simadri met homicidal death.

7. Defence plea is that of complete denial and false implication.

8. Learned counsel for the Appellant (Accused) submitted that

when the prosecution case is based on circumstantial evidence, the

appreciation the evidence by of the Trial Court with regard to the

circumstances projected by the prosecution is not at all be up to the

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required standard. He submitted that the circumstances which have

proved by the prosecution have been well explained by accused and

therefore, when the circumstances do not unerringly point the finger of

guilt at the accused, the Trial Court has erred in taking a cumulative

view over the same in finally holding that the prosecution has proved its

case against the accused beyond reasonable doubt. He further submitted

that even if all the circumstances are accepted for a moment as to have

been proved by leading cogent, clear and acceptable evidence and the

explanations given by the accused are not accepted then also the chain

of events are not complete in excluding all the hypothesis other than the

guilt of the accused. He narrated all those circumstances, one by one

with reference to the evidence on record which would be discussed in

the paragraphs to follow while addressing the submission in judging the

sustainability of the finding returned by the Trial Court holding the

accused guilty for commission of murder of Suri Simadri.

9. Learned counsel for the Respondent-State submitted all in favour

of the finding returned by the Trial Court holding the accused guilty for

commission of offence Suri Simadri. He submitted that when the

prosecution has proved the fact through the evidence which is free from

any infirmity that the accused and the deceased went and slept together

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in the room and at 3 a.m. the accused informed P.W.2 that the deceased

had been killed, the explanation of the accused that he had been outside

and on his coming back, saw the deceased who happens to be his brother

lying dead with bleeding injury, it is not at all believable. According to

him, with the above proven circumstance, therefore, there is no escape

of the accused from being convicted for the murder of his brother

(deceased). He then invited our attention to other circumstance with

regard to the presence of the human blood of the group of the deceased

on the lungi of the accused. It was further submitted that the explanation

of the accused having been found to be false that stands as an additional

circumstance and the Trial Court in view of the evidence on record has

rightly held the accused guilty for committing the murder of his brother.

10. 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.15 and have perused the documents

admitted in evidence from the side of the prosecution which have been

marked Ext.1 to Ext.17.

It is the case of the defence that during the night, the accused has

not slept with the deceased and was patrolling in the village to guard the

thieves and when he returned he saw his brother lying with bleeding

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injury on his person. The prosecution case that the deceased after

coming from Raipur seven (7) days prior to his death was residing with

the accused that is also not disputed by the accused rather he has

admitted the same during his examination under section 313 Cr.P.C.

11. The most important circumstance is that in the night, the accused

and the deceased were sleeping together in a room in the house. The

wife of the deceased has stated that the accused was sleeping in a room

with her husband on the relevant night and she was sleeping in another

room. She has stated that when she got up around 3 am, she saw the

accused in the room where her husband was sleeping and then noticed

bleeding injuries on the neck of her husband who by then was dead.

During cross-examination this witness has however has stated that on

the relevant night the accused with other villagers had been to guard

some Arogola who had committed theft in the locality. He has then

stated that accused came and assaulted her husband. P.W.3 is the mother

of the deceased. It is evidence that the accused and the deceased were

watching the thieves and they told that they would sleep in one room.

She has further stated that in the night accused knocked the door of their

room and when they opened, he told that someone had killed his elder

brother Simadri and then they saw Simadri lying dead with bleeding

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injuries on the vital part of his body. The nephew of the accused and

deceased (P.W.12) has deposed that he was present at the house when

the incident occurred. The deceased and the accused were sleeping

together in one room of the house and P.W.2 and P.W.3 were sleeping

in one room whereas he with his friends slept in another room. These

witnesses have not been cross-examined on this vital factual aspects.

Their evidence being read in a plain manner we are not in a position to

say that the Trial Court did commit any mistake in arriving at a finding

that the accused and the deceased were together in night in the room of

the house.

The accuses stated in his statement that in the night of

occurrence, he with other villagers were guarding thieves and on his

return to home, he saw his brother lying dead with injuries. He does not

state that his brother had also gone with him to guard the thieves. He

also does not say that while leaving the house whether he had put the

lock in the front door of the house or the inmates had locked it from

inside. He is also not stating as to how he entered into the house;

whether he himself opened the door which he had locked from outside.

It is absolutely unbelievable for a moment that the villagers and the

accused when were guarding the thieves, the door of the house where

JCRLA No.21 of 2016 {{ 11 }}

the accused and the deceased with their family members were leaving

would remain unlocked that anybody could have free entry and exit.

Therefore the plea of the accused that having returned home he saw the

deceased lying dead with injuries is not at all believable. It being the

state of affair when the prosecution is found to have proved the

foundational fact as to sleeping of the accused and the deceased together

in that night in a room, we are of the view that the burden of proof lying

upon the prosecution stood discharged. Thus when the accused has

failed to show the facts which were within his special knowledge as to

what intervened there is no escape for the accused from being attributed

with the authorship of the fatal injuries upon the deceased leading to his

death as the prosecution could not have further established the same.

In addition to the above, it has also been established through

evidence from the side of the prosecution that the wearing apparels and

the hands of the accused were stained with blood and human blood has

also been detected on his fingering and his nail clippings which the

accused had admitted in his statement recorded under section 313

Cr.P.C. But his explanation is that when he handled the dead body of the

deceased, the blood had come in contact with his wearing apparels and

hands. This explanation is not acceptable. Even if for a moment we say

JCRLA No.21 of 2016 {{ 12 }}

that the accused having come to the house saw that his brother has been

murdered and lying dead in a pool of blood with cut injuries all over the

body with the weapon Kati lying nearby, when he says to have informed

his mother and the wife of the deceased how could it be that he would

go to touch or handle the dead body and for what reason that he however

is not stating

For the aforesaid discussion, we are of the considered view that

the Trial Court has rightly held the accused guilty for committing the

murder of his brother, Suri Simadri and liable punishable under section

302 of the IPC.

12. In the result, the Appeal stands dismissed. The judgment of

conviction and order of sentence dated 26.12.2015 passed by the learned

Additional Sessions Judge, Chatrapur, Ganjam in S.T. Case No.240 of

2013 (09/12-GDC-04/12-FTC) are hereby confirmed.

(D. Dash), Judge.

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


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

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JCRLA No.21 of 2016