Nuna @ Chaghara @ Nunaram vs State Of Odisha
2023 Latest Caselaw 10877 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                        CRLA No.599 of 2016

        In the matter of an Appeal under Section 374 of the Code of
  Criminal Procedure, 1973 and from the judgment of conviction
  and the order of sentence dated 13th April, 2015 passed by the
  learned Additional Sessions Judge, Rairanghpur, in Sessions Trial
  No.01 of 2014.
                             ----

      Nuna @ Chaghara @ Nunaram               ....        Appellant
      Beshra

                                 -versus-

      State of Odisha                         ....       Respondent

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

              For Appellant      -       Mr.Biswajit Nayak
                                         (Advocate as Amicus Curiae)

              For Respondent -           Mr.Soubhagya Ketan Nayak,
                                         Additional Government Advocate
  CORAM:
  MR. JUSTICE D.DASH
  DR. JUSTICE S.K. PANIGRAHI

  Date of Hearing : 30.08.2023       :      Date of Judgment:05.09.2023

D.Dash,J.     The Appellant, by filing this Appeal, has called in

question the judgment of conviction and the order of sentence

dated 13th April, 2015 passed by the learned Additional Sessions

Judge, Rairanghpur, in Sessions Trial No.01 of 2014 arising out of

G.R. Case No.365 of 2013 (T.C. No.1199/2013 corresponding to

CRLA No.599 of 2016

Tiring P.S. Case No.32 of 2013 of the Court of the learned Sub-

Divisional Judicial Magistrate (S.D.J.M.), Rairangpur.

The Appellant (accused) thereunder has been convicted for

committing the offence under section 302/324 of the Indian Penal

Code, 1860 (for short, 'the IPC'). 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 one (1) year for commission of the

offence under section 302 of the IPC and undergo rigorous

imprisonment of one (1) year and pay fine of Rs.1000/- (Rupees

One Thousand) for commission of the office under section 324 of

the IPC, with the stipulation that the substantive sentences would

run concurrently.

2. The marriage between the accused, namely, Nuna @

Chaghara @ Nunaram Beshra and Kapura Besra had taken place

in the year 2013. As they being in love with each other, ultimately

married, it was said that the family members of the accused and

at their behest, the accused, after the marriage meted out cruelty

upon Kapura. Sometime in between February-March, 2014,

Kapura fell ill. So, her father (informant-P.W.1) brought her to

their house situated in another village from that of the village of

the accused for her treatment. Kapura when recovered to some

extent from her illness, accused once came to his father-in-law's

CRLA No.599 of 2016

house and after staying for a day, expressed his desire to take his

wife Kapura with him. Kapura then refused in saying that she

would go only after full recovery. At this, the accused, being

annoyed, had left the house of his father-in-law's house by giving

a threat to take away the life of Kapura.

Few days thereafter, on 03.07.2014 night, accused somehow

managed to make his entry to the house of his father-in-law.

Kapura was then sleeping with her mother (P.W.2) and it is said

that the accused then attacked her by means of a Katal. The

mother of Kapura (P.W.2), hearing the shriek of Kapura, woke up

and dissuaded the accused from inflicting injuries upon Kapura,

which was not paid any heed to. On the other hand, the accused

assaulted his mother-in-law (P.W.2) by said Katal causing severe

injuries on her left hand. The accused then is said to have fled

away, leaving the weapon and a mobile phone set at the spot.

Receiving the blows by that Katal from the accused, Kapura died

at the spot and her mother (P.W.2), being injured, was shifted to

the Hospital.

In the morning, the father of Kapura (deceased), who is the

father-in-law of the accused, submitted a written report (Ext.5)

being scribed by one Bhagirathi Patra (P.W.13) with the

Inspector-in-Charge (IIC) of Tiring Police Station. The IIC, having

received the written report from the informant (P.W.1), treated

CRLA No.599 of 2016

the same as FIR and upon registration of the case, took up

investigation.

3. In course of investigation, the Investigating Officer (P.W.14)

examined the informant (P.W.1) and visited the spot where he too

examined the other witnesses. The spot map (Ext.6) was prepared

by I.O.(P.W.14). He then made a requisition for deputation of an

Executive Magistrate to remain present during the inquest.

Subsequently, in presence of the Executive Magistrate and others,

the I.O. (P.W.14) held inquest over the dead body of the deceased

and prepared the report (Ext.1). He then sent the dead body of

the deceased for post mortem examination. He also seized other

incriminating articles including the Katal from the spot under

seizure lists. The wearing apparels of the deceased were seized

under Ext.7 when those were produced by the police constable,

who had accompanied the dead body for post mortem

examination. The accused, being arrested, was forwarded in

custody to Court. The incriminating articles were then sent for

chemical examination through Court. On completion of the

investigation, the I.O. (P.W.14) submitted the Final Form placing

the accused to face the Trial for commission of the offences under

section 498-A/302/304-B/307 of the IPC.

4. Learned S.D.J.M., Rairangpur, on receipt of the Final Form,

took cognizance of said offences and after observing the

CRLA No.599 of 2016

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. As already stated, the

father of the deceased, who is the informant and had lodged the

written report (Ext.5) being scribed by P.W.13 is P.W.1 whereas

P.W.2 is the mother of the deceased, who is an eye witness to the

occurrence and P.W.10 is their son. A relative of P.W.1 has been

examined as P.W.3 and P.W.11 is a neighbour of P.Ws.1 & 2.

Other villagers have been examined as P.Ws.4, 6, 7, 8, 9 & 12, who

are the post occurrence witnesses. The witnesses to the seizure of

Katal and mobile phone are P.Ws.8 & 9. The Doctor, who

conducted the post mortem examination over the dead body of

the deceased is P.W.5 whereas the Doctor, who had medically

examined the mother of the deceased (P.W.2) has been examined

as P.W.16. The I.O has come to be examined as P.W.14.

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 8.

Important of those, are the FIR (Ext.5); inquest report (Ext.1); post

mortem report (Ext.2); the spot map (Ext.6); and the injure reports

are Ext.9 and Ext.10.

CRLA No.599 of 2016

6. The plea of the accused is that of complete denial and false

implication. The accused, however, has not tendered any

evidence in support of his defence.

7. The Trial Court, on going through the evidence of the

prosecution witnesses and upon their examination, while holding

that the prosecution has failed to prove the charge against the

accused under section 498-A/304-B/307 of the IPC, has held the

accused guilty for commission of offence under section 302/324 of

the IPC and accordingly, he has been sentenced as afore-stated.

8. The Doctor (P.W.5), who had conducted the post mortem

examination over the dead body of the deceased is P.W.5. It is his

evidence that during post mortem examination, he had noticed

five incised wounds over the dead body of the Kapura. The seat

of those incised wounds were - lateral side of left hand, chin, left

side of the chest and over the neck. He has given the dimension

of such injuries. His evidence is to the effect that all these injuries

were ante mortem in nature and the death was due to the injury

to the vital organs leading to extensive haemorrhage and shock.

All these deposed during trial, find mention in detail in his report

(Ext.2). He, having examined that Katal seized by the I.O.

(P.W.14) in course of the investigation, has also opined that with

the same, the injuries, which he had noticed upon the dead body

of the deceased, were possible. It appears that from the side of the

CRLA No.599 of 2016

defence, there has been no attempt to shake the evidence of this

Doctor (P.W.5) either as regards the seat and dimensions of the

injuries or their nature or as to the cause of death as stated. Thus,

during trial, there appears to be no challenge to the nature of

death of Kapura (deceased) to be homicidal and that has also

been the situation before us.

In addition to the above, the I.O. (P.W.14), who had held

inquest over the dead body of the deceased in presence of the

Executive Magistrate, has noted such injuries to have been

noticed on the person of the deceased, which too had been seen

by the witnesses including P.Ws.1, 2 and 10, who happen to be

the father, mother and brother of the deceased. With the above

discussed evidence on record, we have no other option but to

hold that the prosecution has proved that Kapura (deceased) met

a homicidal death.

9. Mr.Biswajit Nayak, learned Amicus Curiae for the

Appellant (accused) submitted that the evidence of P.Ws.1, 2 &

10, which have been relied upon by the Trial Court are in great

variance from one another on the material aspects of the case. He

further submitted that the evidence of these three witnesses,

when being cumulatively assessed, the role of this accused,

during occurrence as they have said appears to be highly

improbable. He further submitted that the prosecution has led

CRLA No.599 of 2016

absolutely no evidence as to how the accused went to the house

of P.Ws.1 & 2 in that night when that his village is at a far off

place from the village of the accused. He further submitted that

P.W.10, who is the brother of the deceased, having not stated in

the direction to implicate the accused, the evidence of P.W.2

stand doubtful and so also the evidence of P.W.1. In support of

the same, he invited our attention to the deposition of P.Ws.1, 2 &

10, which we would discuss in course of examination of the

evidence to follow. In view of all these, he contended that the

Trial court has committed grave error in holding that the

prosecution has established the charges under section 302/324 of

the IPC against the accused beyond reasonable doubt by leading

clear, cogent and acceptable evidence.

10. Mr.S.K. Nayak, learned Additional Government Advocate

for the Respondent-State, while supporting het finding of guilt of

the accused, as has been returned by the Trial Court, contended

that the evidence of P.Ws.1, 2 & 10 are consistent on the material

aspect of the case and their evidence, being read in entirety,

would reveal that they are truthful witnesses and their versions

are the true reproduction of what they had seen in the relevant

night, which are free from any infirmity to be elbowed.

11. Keeping in view the submissions made, we have carefully

gone through the impugned judgment of conviction. We have

CRLA No.599 of 2016

also travelled through the depositions of the witnesses examined

from the side of the prosecution as P.Ws.1 to 18 and have perused

the documents admitted in evidence marked as Exts.1 to 8.

12. Admittedly, the most important witnesses for the

prosecution are P.Ws.1, 2 and 10, who are the father, mother and

brother of the deceased respectively. The occurrence took place

sometime past mid night. So, it was the time when everyone

would be sleeping.

P.W.1, the father of the deceased, who had lodged the FIR

(Ext.5) being scribed by P.W.13, has stated that in his house, is a

chalia (thatched) house consisting of one room. His evidence is

that in that night, he, his wife (P.W.2) and their daughter Kapura

(deceased) with their two sons including P.W.10 were sleeping.

He has stated that one lantern (harkin) being lighted was very

much in the house. He has stated that around mid night, he heard

sought "Banchau Banchau" and so woke up and saw the accused

stabbing Kapura by knife at her chest, forehead and neck. He

further stated that when his wife (P.W.2) came to rescue Kapura

(deceased), the accused also stabbed her on her left hand and fled

away. His FIR version is completely at part with his version in

Court. On being cross-examined, he has stated that when he

woke up hearing the shout of his daughter (deceased), the

accused was present. So, it appears that this P.W.1 has very much

CRLA No.599 of 2016

- 10 -

asserted the presence of P.W.1 in their house in the relevant

night, the moment he woke up.

P.W.2, who is the mother of the deceased and husband of

P.W.1, has also stated that during that night, she with her

daughter Kapura (deceased) were sleeping under one mosquito

net and she suddenly heard the shout of her daughter "Banchu

Banchu". She then saw the accused assaulting her daughter

Kapura by Katal (knife) at her chest, neck, head and hand. She

has further stated that although she asked the accused not to

further assaulted Kapura, the accused, instead of paying any

heed to the same, retaliated in giving knife blows on her left hand

before leaving the place. She being asked has also stated about

arrival of one Chandla in their house in the night of occurrence.

Thus, we find no such variance in the evidence of P.Ws.1 and 2 as

to the happenings in that night. The parents of the deceased,

having stated as above, her brother has next stated that in that

night, her mother (P.W.2) and sister (deceased) were sleeping

near the bed and when her mother raised hullah, he saw the

accused. He has also stated to have seen the injury on her mother

(P.W.2) and those on her sister (deceased). Their evidence as to

the assault upon P.W.2 is corroborated by the Doctor (P.W.16),

who had medically examined P.W.2. We thus find that the

evidence of P.Ws.1, 2 and 10 have a ring of truth when nothing

has been elicited from them during cross-examination to discredit

CRLA No.599 of 2016

- 11 -

their versions. The criticism levelled by the learned counsel for

the Appellant (accused) as regards the absence of any evidence as

to how the accused came in the dead of night to the house is self-

explanatory. The accused is none other than the son-in-law of

P.Ws.1 & 2. They were having the relationship as such for last six

years. The accused visited the house of her father-in-law and,

therefore, when the three members of the family, who were very

much sleeping in the house in that night, have stated about the

unexpected presence of the accused in the house and the role

played by him, their evidence on that score cannot be thrown

aside as no evidence is forthcoming as to how the accused went

there which is obviously known to the accused alone and the

prosecution was under no obligation to prove the same.

13. In addition to the above, the evidence of P.Ws.3 and 11 also

provide ample support to the evidence of P.Ws.12 and 10, when

they have stated that hearing the shout of P.W.2 and hue and cry

in the house of P.W.1, they went and found the deceased lying

dead with cut injuries on her neck, chest and forehead and hand

and P.W.2 also to have sustained bleeding injuries on his hand.

That has been proved by the Doctor (P.W.16), who had examined

her on police requisition, i.e., P.W.16, who has stated in clear

terms to have seen four scar marks of different dimensions over

lateral aspect of forearm, forearm of posterior aspect to proximal

CRLA No.599 of 2016

- 12 -

and of ulna, over left palm extending from the thumb to

hypothela eminence and in between index and thumb left hand

of P.W.2. The evidence of this P.W.16 as regards the injuries

noticed upon P.W.2, while examining her on police requisition

are quite consistent with the version of P.W.2 that she was

assaulted when she was dissuading the accused from inflicting

the blows upon her daughter.

On a conspectus of analysis of the evidence hereinabove,

this Court finds that the prosecution has proved its case against

the accused as having committed the murder of Kapura Beshra

beyond reasonable doubt.

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

conviction and the order of sentence dated 13th April, 2015 passed

by the learned Additional Sessions Judge, Mayurbhanj, in

Sessions Trial No.01 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: 11-Sep-2023 17:41:01

CRLA No.599 of 2016