Orissa High Court
Dosu @ Dusmanta Behera & vs State Of Odisha on 19 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.30 of 2021
From the judgment of conviction and order of sentence dated
10.05.2021 passed by the learned Sessions Judge, Dhenkanal in C.T.
(Ss) Case No.117 of 2018.
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Dosu @ Dusmanta Behera & .... Appellants
Danei Behera (Dead)
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - Mr.Chitta Ranjan Pattanaik
(Advocate)
For Respondent - Mr.S.K. Nayak
Additional Govt. Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K.PANIGRAHI
Date of Judgment ::: 19.10.2023
D.Dash,J. The Appellants, by filing this Appeal, from inside the jail, have
called in question the judgment of conviction and order of sentence
dated 10.05.2021 passed by the learned Sessions Judge, Dhenkanal in
C.T. (Ss) Case No.117 of 2018 arising out of G.R. Case No.96 of 2018
corresponding to Balami P.S. Case No.28 of 2018 on the file of the
learned Sub-Divisional Judicial Magistrate, Dhenkanal.
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The Appellants thereunder have been convicted for commission
of offence under section 302 of the Indian Penal Code, 1860 (for short,
'the IPC') and sentenced to undergo imprisonment for life and pay fine
of Rs.5,000/- (Rupees Five Thousand) each in default to undergo
imprisonment for six months.
At this stage, it would be proper to mention that the Appellant
No.2 (accused-Danei Behera), having expired on 14.03.2023, the
Appeal stood abated against him.
2. Prosecution Case:-
On 01.05.2018 around 9.50 p.m., one Bibhuti Behera (Informant-
P.W.8) who is the son of Gurubari Behera finding the Assistant
Inspector of Police (A.S.I.) attached to Balami Police Station to be in-
charge of the Officer-in-Charge (OIC) to be discharging the duty as such
lodged the written report stating that in the afternoon his father Gurubari
Behera with one Chagala Mohapatra (P.W.12) on a bike had been to the
jungle in search of the buffaloes. Sometime thereafter, Chagala
Mohapatra (P.W.12) coming back reported that the accused persons had
hacked Gurubari to death by means of an axe near Thika Taila. The
Informant and P.W.8 hearing the above from Chagala Mohapatra
(P.W.12) rushed to the spot. When he raised protest at the spot, he was
chased by the accused persons for being assaulted. So, he (P.W.8)
somehow managed to leave the place to save his life. It was also stated
that Chagala Mohapatra (P.W.12) with his mother and others again went
to the place and found the bike and slippers used by Gurubari were lying
at the spot. Gurubari, however, was not found in the vicinity. Chagala
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Mohapatra (P.W.12) then discovered his father lying in a room owned
by a Company with both his hands chopped. He was then taken to the
Hospital.
The A.S.I. of Police in the absence of the Officer-in-Charge
(O.I.C.) of the Police Station treated the said written report of the
Informant (P.W.8) as the F.I.R. and registering case, took up
investigation. He then examined the Informant (P.W.8) and other
witnesses, went to the spot, prepared the spot map (Ext.11) and held
inquest over the dead body. The inquest report was also prepared by the
said Investigating Officer (I.O.-P.W.14). The dead body was then sent
for post mortem examination by issuing requisition to that effect. The
accused persons were arrested and interrogated. The accused Dusmanta
Behera while in police custody disclosed to have kept the axe concealed
in a place and that if he would be taken, he would give recovery of the
same. Pursuant to the said statement, which was recorded by the I.O.
(P.W.14) accused Dusmanata is said to have taken the I.O. (P.W.14)
and others to a place near the boundary wall of Rungta Company and he
having given the recovery of the same, it was seized under seizure list.
The I.O. (P.W.14) on arrival of the Officer-in-Charge (O.I.C.-P.W.15)
of the Police Station handed over the investigation to him. He (P.W.15)
in turn visited the spot, examined in the Informant and other witnesses,
received the Post Mortem Examination Report and sent the
incriminating articles as well as the axe which had been seized in course
of investigation for chemical examination through Court.
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On completion of investigation, the I.O (P.W.15) submitted the
Final Form placing the accused persons to face the Trial for commission
of offence under section 302 of the IPC.
3. Learned SDJM, Hindol, on receipt of the Final Form, took
cognizance of the offence under section 302 of the IPC 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 said
offence against the accused persons.
4. In the Trial, the prosecution in total has examined fifteen (15)
witnesses. Out of them, the son of the deceased Gurubari who had
lodged the F.I.R. (Ext.5) as the Informant is P.W.8. P.W.7 and P.W.12
are two post occurrence witnesses whereas P.W.1 is the witness to the
inquest and P.W.2, P.W.3 and P.W.4 are the witnesses to the seizures.
Two other co-villagers have been examined as P.W.5 and P.W.6 and the
witnesses to the recovery of the axe pursuant to the statement of
accused-Dusmanata while in police custody are P.W.9 and P.W.13. The
Doctor, who had conducted autopsy over the dead body of the deceased
has come to the witness box as P.W.10 and the two I.O.'s are P.W.14
and P.W.15.
5. Besides leading the evidence by examining above the witnesses,
the prosecution has also proved several documents which have been
admitted in evidence and marked as Ext.1 to Ext.15. Out of those, the
important are the FIR, Ext.5, inquest report, Ext.1, Post Mortem Report,
Ext.8, spot map, Ext.11, Chemical Examiner's report Ext.15 and the
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seizure list concerning the seizure of axe said to have been made at the
instance of accused-Dusmanta is Ext.6/1.
6. The accused persons have tendered no evidence in support of their
plea of denial and false implication.
7. The Trial Court on going through the evidence of the Doctor
(P.W.10), who had conducted Post Mortem Examination over the dead
body of the deceased and upon report (Ext.8) read with the opinion
given by him admitted in evidence and marked Ext.9 has arrived at a
conclusion that the nature of death of Gurubari was homicidal. Having
said as above, the Trial Court examining the evidence of P.W.7, P.W.8
and P.W.12 and their analysis has held the prosecution to have
established the charges against the accused persons beyond reasonable
doubt. Accordingly, the accused persons have been convicted for
committing the murder of Gurubari and sentenced as afore-stated.
We find that insofar as the nature of death of Gurubari is
concerned, there was no challenge from the side of the defence in the
Trial Court and that has also been the situation before us. The evidence
of P.W.10, the Doctor reveals that he had noted both upper lip of
Gurubari (right and left hand) to have been completely severed from
above the elbow joint and wrist joint respectively with fracture of both
radius and ulna and both bones coming out of the wound with tissue and
blood vessels. The lacerations had been noticed over left cheek, upper
lip and parietal scalp. It is his evidence that all these injuries were ante
mortem in nature and the death was homicidal since the cause of death
was on account of massive haemorrhage resulting from the injuries. The
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findings which have been deposed by P.W.10 have been noted in his
report Ext.8. He has also subsequently in course of investigation opined
that such injuries are possible by the axe (M.O.-XV) which he had the
occasion to examine being produced before him. Over and above, we
too find the evidence of the first I.O. (P.W.14), who having held inquest
over the dead body of the deceased had noted such injuries in his report
(Ext.1) which he had prepared in presence of the witnesses. The other
witnesses have also stated to have seen the deceased with all such
injuries. When we noticed that practically there has been no challenge to
the evidence on the above scores, we are left with no option but to
concur with the finding of the Trial Court that Gurubari's death was
homicidal.
8. Mr.C.R. Pattnaik, learned counsel for the Appellants (accused
persons) submitted that here when there is no direct evidence to connect
these accused persons with the crime and as such to say that they are the
authors of the injuries caused on the deceased Gurubari, the Trial Court
simply on the basis of the evidence as to recovery of the axe which was
said to have been made at the instance of accused -Dusmanta in course
of investigation and which too is not believable, has convicted the
accused persons. According to him, the evidence of witnesses, i.e.,
P.w.7, P.W.8 and P.W.12 are not directed towards the complicity of the
accused persons attributing authorship of the injuries received by the
deceased.
9. Mr.S.K. Nayak, learned Additional Government Advocate for the
State while supporting the finding of the guilt as against the accused as
has been rendered by the Trial Court submitted that the Trial Court upon
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detail discussion of evidence of P.W.7, P.W.8 and P.W.12 has rightly
held the prosecution to have proved the charge against the accused
persons beyond reasonable doubt. According to him, the evidence of
P.W.12 on the score that he had seen the accused persons assaulting the
deceased being wholly reliable and as that find corroboration not only
from the evidence of P.W.7 and P.W.8 but also from the medical
evidence let in through P.w.10, the Trial Court is right in convicting the
accused persons for committing the offences under section 302 of the
IPC and sentencing them accordingly.
10. Keeping in view the submissions made, We have carefully read
the judgment passed by the Trial Court. We have also perused the
evidence of the prosecution witnesses, i.e., P.Ws.1 to 15 and have also
travelled through the documents admitted in evidence and marked
Exts.1 to Exxt.15.
11. In order to address the rival submission and thereby judge the
sustainability of the finding of guilt against the accused persons as has
been returned by the Trial Court, we are thus called up to examine the
evidence of the prosecution witnesses. The brother of the deceased who
has been examined as P.W.1 is not the eye-witness to the occurrence. He
has stated to have heard everything from his grandson Chagala that
accused Dosu had hacked Gurubari by Tangia and accused Danei had
assaulted him by lathi. P.W.5 who is a co-villager has also stated in the
same vein.
12. Next comes the evidence of P.W.7 who is none other than the
wife of the deceased. She states that there was a quarrel in the early
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morning between her husband (deceased) and Dhani Behera, the brother
of accused Danei and that was when her husband (deceased) had been to
the house of Dhani. It is also stated that accused Danei picked up the
quarrel with Gurubari and had threatened Gurbubari (husband of P.W.7)
to kill him. She states that her husband and one Chagala (P.W.12) when
had been to the forest area in search of their buffaloes by riding a bike,
on the way, the accused persons hacked her husband by means of an
axe. This witness clearly states to have been told about all these
happenings by that Chagala (P.W.12) and thereafter when she rushed to
the spot, she says to have seen the accused persons dragging her
husband towards the field. She has also stated her son Bibhuti (P.W.8)
had first gone to the spot and there he was chased by the accused
persons and while coming back, he had met them. It is also his evidence
that having arrived at the spot, he gave water to her husband to drink
and thereafter her husband-Gurubari vomited blood. She has also stated
that at that time her husband (Gurubari) shortly before the death being
asked disclosed that the accused persons hacked him by means of
Tangia and stick and thus were responsible for his condition. When
these are the positive evidence in court, attention of this P.W.7 has been
drawn to her previous statement before the police in course of
investigation that she had not stated that the accused persons had hacked
her husband and that her son Chagala (P.W.12) had told her about that
the accused persons were seen to be dragging her husband on the field
and that her son Chagala was chased by the accused persons. She too to
have gone to the place and given water to her husband but not that her
husband being asked had disclosed anything before her. This has been
proved through the I.O. (P.W.14) that all these had not been stated by
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P.W.7 before him when he had recorded her statement under section 161
of the Cr.P.C. and thus do not find place in the said statement available
in the case diary. The evidence of P.W.7 thus appear to be completely
different than what she had never stated in course of investigation and
that too thus being directly pointing at the complicity of the accused
persons. In view of that, it would not be permissible to brush aside such
omissions in turning those to be minus.
Taking a pause here, when we look at the evidence of P.W.8, we
find that having said that his mother (P.W.7) had gone and gave water to
drink, he does not state that it had been disclosed by his father to the
mother as to how he sustained those injuries. This P.W.8's version is
that few minutes after administration of water by P.W.7, his father died.
For all these, the evidence of P.W.7 is not reliable in pointing the
complicity of the accused persons.
13. Next the most important witness is Chagala Mohapatra (P.W.12)
who is the nephew of Bibhuti Behera (Informant-P.W.8). His evidence
is that around 2 p.m., he with his maternal grandfather Gurubari had
been to Sika Paida on a two wheeler in search of their buffalos and there
he had seen accused persons engaged in grazing buffalos and at that
time, accused Danei was carrying a lathi whereas accused Dosu was
holding a taniga. It is his evidence that both of them chased them for
which he and his maternal grandfather Gurubari started running. He
further states that then accused persons surrounded his maternal
grandfather Gurubari and started assaulting him. Specifically, it is stated
by him (P.W.12) that accused Danei assaulted Gurubari by tangia and
seeing this he concealed his presence near a bush and then rushed to the
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village to inform P.W.7 and P.W.8. The version of this P.W.12 from
whom admittedly P.W.7 and P.W.8 had heard about the happenings is
not at all matching with the version of P.W.7 and P.W.8 as to what they
heard from P.W.12. When P.W.12 states to have told P.W.7 and P.W.8
what happened at the place in one way; P.W.7 and P.W.8 state in such a
way that their versions are irreconcilable. He is also stating during cross-
examination that when his maternal grandfather Gurubari was
obstructed by the accused persons, he was running on the road and,
therefore, this P.W.12 had to conceal his presence for about two minutes
and then he went to call his uncle. He states that his maternal
grandfather (P.W.7 and P.W.8) reached the spot first and thereafter he
arrived. It is also stated by him that by that time the accused persons
were very much present at the spot and only when they saw them, they
left the place which is however not the evidence of P.W.7 and P.W.8.
He again has stated that when the accused persons chased, he ran
straight and his maternal grandfather-Gurubari having turned right
started running. He is, however, not stating that the accused persons
thereafter chased his maternal grandfather. In the above situation, even
awarding some grace mark to the evidence of one witness, the same is
not coming to match the evidence of the other witness which too not
only require the grace mark but more than what has been awarded to the
former which in our view is not possible and permissible.
Above being the state of affair in the evidence of the prosecution
witnesses, We are not in a position to subscribe to the view taken by the
Trial court that the same are quite consistent and reliable to fasten the
liability as to commission of the offence under section 302 of the IPC in
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holding that though the above evidence the charge against the accused
persons stand proved beyond reasonable doubt. Accordingly, We hold
that the judgment of conviction and order of sentence passed by the
Trial Court 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 10.05.2021 passed by the learned
Sessions Judge, Dhenkanal in C.T. (Ss) Case No.117 of 2018 are hereby
set aside. The Appellant, namely, Dosu @ Dusmanta Behera 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.
True Copy
P.A.
Signature Not Verified
Digitally Signed
Signed by: HIMANSU SEKHAR DASH
Reason: Authentication
Himansu
Location: ORISSA HIGH COURT
Date: 19-Oct-2023 18:18:57
JCRLA No.30 of 2021
