Orissa High Court
Birsa Toppo vs State Of Orissa on 19 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.41 of 2016
In the matter of an Appeal under Section 374(2) of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and the
order of sentence dated 16th December, 2015 passed by the learned
Additional Sessions Judge, Sundergarh, in S.T. Case No.87/43 of 2014.
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Birsa Toppo .... Appellant
-versus-
State of Orissa .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.Smruti Ranjan Rout
Mr.K.C. Behera
(Advocates)
For Respondent - Mr.S.K. Nayak,
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
Date of Hearing : 10.05.2023 : Date of Judgment:19.05.2023
D.Dash,J. The Appellant, by filing this Appeal, has called in question the
judgment of conviction and the order of sentence dated 16 th December,
2015 passed by the learned Additional Sessions Judge, Sundergarh, in
S.T. Case No.87/43 of 2014 arising out of G.R. Case No.06 of 2014
corresponding to Rajgangpur P.S. Case No.03 of 2014 of the Court of
the learned Judicial Magistrate First Class (J.M.F.C.), Rajgangpur.
The Appellant (accused) thereunder has been convicted for
committing the offence under section 302 of the Indian Penal Code,
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1860 (for short, 'the IPC') and accordingly, he has been sentenced to
undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten
Thousand) in default to undergo rigorous imprisonment for two (2)
years for the offence under section 302 IPC.
2. Prosecution Case:-
On 9.1.2014 around 1.300 p.m., Bandeo Toppo (Informant-
P.W.14) came from the house of his brother-in-law situated at Village-
Talukdar to his own house at Village-Hatidharsha carrying the hope and
with an expectation that the wife of his younger brother Chootu, who
knew the art of sorcery, would cure his minor daughter. He did not find
anyone to be present there at home. He then searched for them and
found his younger brother Chotu and his wife cutting wood at a distance
of 100 meters from their home. He met the wife of Chhotu and
requested her to get his daughter cured. The accused by then started
altercation with him. When the Informant (P.W.14) protested, the
accused chased him with an exe in order to assault. The Informant
(P.W.14) started running to save himself. The accused then held his
wife, took her to the nearby paddy field and repeatedly dealt blows by
means of that axe on her head. She was killed by chopping her head
from the trunk. The informant (P.W.14) saw the incident by hiding his
presence in a nearby bush. The accused soon after the incident, left the
spot carrying that axe.
The informant (P.W.14) lodged a written report before the
Inspector-in-Charge (I.I.C) of the Rajgangpur Police Station, who
having received the same, treated it as FIR (Ext.7). Having registered
the Case, the I.I.C. directed Sub-Inspector of Police, namely, Jagadish
Bara (P.W.18) to take up the investigation.
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3. In course of investigation, the Investigating Officer (I.O.-P.W.18)
examined the Informant (P.W.14) and recorded his statement and those
of other witnesses under section 161 of the Code of Criminal Procedure,
1973. He had visited the spot and prepared the spot map (Ext.15) and
held inquest over the dead body of the deceased and prepared the reports
(Ext.3 & 4). He also issued requisition for post mortem examination
over the dead body of Anita Toppo (deceased). He had seized some
incriminating articles in course of investigation and had sent those for
Chemical Examination through Court. On completion of the
investigation, the I.O. (P.W.18) submitted the Final Form placing the
accused to face the Trial for commission of the offence under section
302 of the IPC.
4. Learned J.M.F.C., Rajgangpur, on receipt of the Final Form, took
cognizance of the offence and after observing the formalities, committed
the case to the Court of Sessions. That is how the Trial commenced by
framing the charge for the aforesaid offence against the accused.
5. The prosecution, in support of its case, has examined in total
eighteen (18) witnesses during trial. Out of whom, P.Ws.6 & 7 are the
parents of the deceased and they are the post occurrence witnesses.
P.W.11 is the scribe of the F.I.R. (Ext.7) and P.Ws.12, 13, 15 & 17 are
the witnesses to the seizure. As already stated, the informant has been
examined as P.W.14. The Medical Officer, who had conducted autopsy
over the dead body of the deceased has been examined as P.W.16 and
the I.O. has come at the end as P.W.18.
Besides leading the evidence by examining the above witnesses,
the prosecution has also proved several documents which have been
admitted in evidence and marked Exts.1 to 15. Out of those, important
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are the FIR (Ext.7) and the inquest reports (Ext.3 & 4). The spot map
has been admitted in evidence and marked as Ext.15. The post mortem
report has been proved by the Doctor as Ext.10. The statement of the
accused, which is said to have been made before the police while
leading the police and others to the place of keeping of that axe has been
admitted in evidence and marked Ext.5.
6. The plea of the accused is that of complete denial. In support of
the defence, two witnesses have been examined as D.Ws.1 & 2.
7. The Trial Court, upon examination of the evidence of the Doctor
(P.W.16), who had conducted autopsy over the dead body the deceased
and his report (Ext.10) as also the evidence of the I.O. (P.W.18),
informant (P.W.14) and others has arrived at a conclusion that the death
of the deceased was on account of ante mortem injuries, which he had
noticed on his person. In fact, this aspect of the case was not under
challenge before the Trial court. The same is the position before us in
this Appeal.
The Doctor (P.W.16), during post mortem examination, has found
the head of the deceased to have been completely separated from the
trunk. He had also noticed three incised injuries on different portions of
the head of the deceased. The left parietal bone was found to be
fractured and the laceration of the size of 5" X 5" X 5" was there over
the neck.
On dissection, P.W.16 had noticed that the carotid artery,
oesophagus trachea survical vertibra were completely incised and the
head was completely separated from the rest of the trunk at the neck
level. The I.O. (P.W.18), having gone to the spot, had found the head
and body of the deceased to have been separated and he too had noticed
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certain injuries on the person of the deceased. That has also been the
evidence of other witnesses including P.W.14.
When such overwhelming evidence has remained unimpeached
from the side of the defence, this Court finds absolutely no difficulty in
arriving at the same conclusion about the death of the deceased as has
been held by the Trial Court.
8. Mr.S.R. Rout, learned counsel for the Appellant (accused)
submitted that without proper analysis of evidence and their
appreciation, the Trial Court has fallen in error in holding that the
prosecution has proved its case against the accused beyond reasonable
doubt. He submitted that the evidence of P.W.14 carry major
contradictions, which although has been proved through the I.O.
(P.W.18), the Trial court has not taken all those into account in their
proper perspective. He further submitted that the evidence of P.W.14
ought to have been held to be unsafe to be relied upon in view of the
circumstances concerning the incident which have come from the lips of
other prosecution witnesses.
9. Mr.S.K. Nayak, learned Additional Government Advocate for the
Respondent-State, refuting the above submission, contended that the
evidence of P.W.14, who is the sole eye witness to the incident is
absolutely unassailable. According to him, the defence has not elicited
any such material from P.W.14 so as to doubt his presence at the place
of occurrence for a moment and when his presence was very natural and
as his version is clear as to how the incident took place, what role the
accused played herein right form the beginning till the end, the Trial
Court has rightly convicted the accused for commission of the offence
under section 302 of the IPC by brutally assaulting the deceased even
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going to the extent of chopping her head and completely severing from
the trunk.
10. Keeping in view the submissions made, we have carefully gone
through the impugned judgment of conviction. We have also travelled
through the depositions of the witnesses examined from the side of the
prosecution (P.Ws.1 to 18) and have perused the documents admitted in
evidence marked as Exts.1 to 15.
11. The star witness for the prosecution being P.W.14, his evidence
first needs due analysis. This P.W.14 is the husband of Anita Toppo
(deceased) and the accused is none other than his elder brother. The
occurrence, as per the version of this witness, took place in their paddy
field situated in front of their house at a distance of around 100 meter
from the house. He has stated that at the relevant time on that date, he,
with his wife and kid had been to their brother-in-law's house at Village
Talukdar, which is at a distance of 5 k.ms from their village and there,
the kid caught fever for which they decided to go back to their house
and get their kid treated by the wife of his brother Chootu as she was
knowing the art of sorcery and having the skill to do so. He has stated
that it was around noon hour of 9.1.2014. As stated, they came with
their kid to the village and finding nobody in the house, went to their
paddy field where they saw the accused, Chhotu and Sanjay cutting the
trees. The wife of the Chhotu, namely, Munia Toppo (deceased) was
also present there. This P.W.14 then asked Munia (deceased) to see his
child and eradicate the evil when by that time, the wife of P.W.14 had
also arrived there. It is stated by him that hearing the request of P.W.14
to his wife, the accused got annoyed and he told that his wife Munia
(deceased) would do nothing to help the kid recover from the illness as
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they had separated in mess. He then asked P.W.14 to leave the place. It
has been stated by this P.W.14 that when he refused, the accused
threatened to kill him and raised the axe for the purpose. It is his further
evidence that in order to save his life, he started running. It is stated that
no sooner did the accused raise his axe to kill him, he started running
and seeing this, the accused chased him giving out that he would kill
both P.W.14 and his wife (deceased). It is his evidence that as when the
accused could do nothing to his as he somehow managed to escape, he
assaulted his wife, who was running behind. The witness states to have
seen the incident from the distance and the accused then assaulted then
assaulted his wife by means of that axe and severed from her head by
giving repeated blows. P.W.14 then states to have immediately rushed to
the house of his brother-in-law and seeing him on the way, he informed
him and others about the incident and then lodged the written before the
Police, which has been admitted in evidence and marked Ext.7. It is his
evidence that the place where the incident took place is a jungle area and
no house was there close to the place which was just 100 meter away
from their house. He has stated that his wife was slained by the accused
on the paddy field.
During cross-examination, he has stated that when the accused
was assaulting his wife, she was standing and facing towards him. It is
his evidence that accused give five blows by that axe on the head of his
wife. He has clearly stated that none of the family members were
present when the accused chased him and his wife by raising the axe and
killed his wife.
On a careful reading of the deposition of this P.W.14, we that
despite scathing cross-examination, nothing has been elicited to discard
his version as to his presence at the time and the act as well as the role
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played by the accused in chasing to assault him by that axe and then to
have dealt several axe blows on his wife by ultimately chopping her
head and severing from the trunk.
P.W.8 is the other witness, who has stated that P.W.14 having
never informed him about the incident when he was present at Podamara
Chhak of Village-Hatidharsa, he had gone to the place of occurrence
where he had seen the head of the deceased lying on the paddy field
being severed from her trunk. This has also been the evidence of P.W.9
that he too was told about the incident by P.W.14, which is within a
short time from the happening of the incident. Although it has been
through proved through the I.O. (P.W.18) that P.W.14 had not stated
before him that he saw the actual assault from a distance, that on the
face of the evidence of P.W.14 taken together with the evidence of
P.Ws.8 & 9, in our considered view is not a ground to discredit the clear
and positive version of P.W.14 as regards the role of the accused in
finally causing the death of the deceased by severing her head from the
trunk.
With such evidence on record, we also find that the I.O. (P.W.18)
that the accused, being taken to custody, had disclosed before him and in
presence of Pabitra (P.W.8) and Karna (P.W.9) to have kept the axe
concealed in a bush near his house. He has stated that the accused,
having given such disclosure statement, which was so recorded and
admitted in evidence and marked Ext.5, had led him and P.Ws.8 & 9 to
the place and bringing out the axe from the bush, had given that to
P.W.18, which was then seized under the seizure list (Ext.6). P.Ws.8 &
9 have supported the version of P.W.18 to the above effect. Therefore,
when we find no reason or justification to discredit the testimony of
P.W.14 with regard to the happenings of the incident and the role of the
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accused in causing the death of the deceased by severing from her head,
we too find that the same receives corroboration from the evidence of
P.Ws.8 & 9, who were immediately informed about the incident by
P.W.14 and the time gap being too short such disclosure of the accused
appears to be spontaneous when there was no time space to think of
arraigning the accused selectively in leaving the real culprit. In addition
to that, the axe which has said to have been used in assaulting the
deceased, has been seized pursuant to the statement of the accused in
leading P.Ws.18, 8 & 9 to the place where he had kept the same
concealed in giving recovery of the same, which stands to provide
support to the evidence of P.W.14.
With such evidence on record, we find that the Trial Court did
commit no error in holding the accused guilty for committing the
murder of Anita Toppo (deceased).
12. In the result, the Appeal stands dismissed. The judgment of
conviction and the order of sentence dated 16 th December, 2015 passed
by the learned Additional Sessions Judge, Sundergarh, in S.T. Case
No.87/43 of 2014 are hereby confirmed.
(D. Dash),
Judge.
Dr.S.K. Panigrahi, J. I Agree.
(Dr.S.K. Panigrahi),
Judge.
Basu
Signature Not Verified
Digitally Signed
Signed by: BASUDEV NAYAK
Reason: Authentication
Location: OHC
Date: 19-May-2023 15:35:33
CRLA No.41 of 2016
