Orissa High Court
Agasti Behera vs State Of Orissa on 2 April, 2024
Author: G. Satapathy
Bench: D. Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.635 of 2011
(An appeal U/S.374 of the Code of Criminal Procedure,
1973 against the judgment passed by Janab
Mohammed Ajmal, Additional Sessions Judge, Rourkela
in S.T. Case No.125 of 2010 corresponding to G.R.
Case No.891 of 2014 arising out of Uditnagar P.S. Case
No.58 of 2010 of the Court of learned S.D.J.M.,
Panposh)
Agasti Behera ... Appellant
-versus-
State of Orissa ... Respondent
For Appellant : Mr. P. Das, Advocate
For Respondent : Mr. P.K. Mohanty, ASC
CORAM:
HON'BLE MR. JUSTICE D. DASH
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :05.01.2024
DATE OF JUDGMENT:02.04.2024
G. Satapathy, J.
1. Feeling aggrieved by the impugned judgment
of conviction and order of sentence dated 16.08.2011
passed by the learned Additional Sessions Judge,
Rourkela in Sessions Trial No.125 of 2010 convicting
the appellant for offence punishable U/S.302 of IPC
and sentencing him to undergo imprisonment for life
thereunder, the appellant named above has preferred
this appeal.
An overview of prosecution case:
2. One Sisir Kumar Bala (hereinafter referred to
as the "deceased") was residing with his family in
Haripurbasti under Uditnagar Police Station, Rourkela
and his sister-in-law P.W.1 (sister of wife) was staying
nearby his house. P.W.1 was having some kind of
relationship with one Agasti Behera (hereinafter
referred to as the "convict") and on this issue, on
31.05.2010 at about 10.45 PM in the night, there was
an altercation between the convict and the deceased
in front of the house of P.W.2-Kamalakanta Mohanty,
as a result, the convict attacked and stabbed on the
chest and leg of the deceased by means of a knife
(MOI). The neighbour of the deceased removed him to
hospital where he was declared as brought dead. On
this incident, P.W.5-Nalini Bala, the wife of the
deceased lodged an FIR under Ext.1 on the intervening
night of 31/01.06.2010 before IIC, Uditnagar Police
Station, who registered PS Case No.58 of 2010 against
the convict for commission of offence punishable
U/Ss.341/294/302 of IPC and entrusted the
investigation to SI of police, P.W.21-Tushil Majhi, who
in the course of investigation, examined the informant
and witnesses, visited the spot, held inquest over the
dead body and sent it for Post Mortem examination,
arrested the convict, recovered and seized MOI (knife)
as well as other incriminating materials, such as
wearing apparels of the deceased and convict, and
sent such incriminating materials to RFSL, Sambalpur
for chemical examination(CE) and, accordingly,
obtained CE report under Ext.15. Finally, on conclusion
of investigation, P.W.21 submitted charge-sheet
against the convict for commission of offence
punishable U/Ss.341/294/302 of IPC under which
cognizance was taken upon finding sufficient materials
resulting in trial in the present case, when the convict
denied to plead guilty to the charge for aforesaid
offences. This is how the trial commenced.
3. In support of the charge, the prosecution
examined 21 witnesses, relied upon 15 documents
under Exts.1 to 15 and identified Material Objects vide
MOI to V as against no evidence whatsoever by the
defence. Of the prosecution witnesses examined in this
case, PW5 is the informant, P.Ws.7 and 8 are the son
and daughter of the deceased as well as projected as
eye witnesses to the occurrence, P.W.9 is the sister-
in-law of the deceased (wife of co-brother-in-law),
P.W.12 is the co-brother-in-law of the deceased, P.W.1
is the sister-in-law of the deceased, who was having
some kind of relationship with the convict, P.W.2 is the
neighbour of the deceased, P.Ws.3 and 4 are the son
and wife of P.W.2, P.Ws.6 and 15 are the witnesses to
the occurrence, P.W.13 is the witness to the inquest,
P.Ws.11, 14, 17 and 18 are the police personnel-cum-
witness to the seizure, P.W.19 is an independent
witness to the seizure, whereas P.W.20 is the witness
to the disclosure statement of the convict, P.W.16 is
the Doctor, who conducted PM examination on the
dead body of the deceased and lastly, P.W.21 is the
investigating officer.
4. The plea of the appellant-convict in the course
of the trial was one of the complete denial and false
implication.
5. After appreciating the evidence on record
upon hearing the parties, the learned Additional
Sessions Judge, Rourkela convicted the appellant for
offence U/S.302 of IPC, while acquitting him for rest of
the offences U/Ss.341/294 of IPC and accordingly,
sentenced him to undergo life imprisonment. In
recording the conviction, the learned Additional
Sessions Judge has mainly relied upon the evidence of
P.Ws.5, 7, 8, 9 and 12.
Rival Submissions:
6. In assailing the impugned judgment of
conviction, Mr. Pratik Das, learned counsel for the
appellant-convict has submitted that the impugned
judgment of conviction is manifestly unjust and
unreasonable, since the learned trial Court has ignored
the material evidence and relevant documents which
supports the case of the appellant and it has failed to
appreciate the fact that motive is an essential feature
in the present case, but the learned trial Court has
erroneously held that motive in the instant case is
immaterial and irrelevant. It is further submitted by
Mr. Das that the learned trial Court has placed much
reliance on the evidence of related witnesses P.Ws. 5,
7 to 9 and 12, but it has erroneously discarded the
evidence of independent witnesses, who are material
witnesses to reaffirm the innocence of the appellant. It
is also submitted that P.W.1 is one of the important
witness because it is on the backdrop of her evidence,
the appellant can be found to be innocent since it is
alleged that due to opposition of relationship between
P.W.1 and the convict, the convict murdered the
deceased and similarly, the immediate neighbour of
the deceased-cum-P.W.2, who even though projected
as an eye witness to the occurrence, has not
supported the prosecution case, so also P.Ws. 3, 4 and
6, who are not only the immediate neighbours of the
deceased, but also are independent witnesses and
they have revealed the true genesis of the case in
their evidence but, disbelieving these witnesses
without any reason, the learned trial Court has laid
much emphasis on the evidence of interested
witnesses like P.Ws.5, 7 to 9 and 12 and erroneously
convicted the appellant and thereby, the conviction of
the appellant is unsustainable in the eye of law. It is
also submitted for the appellant that P.Ws. 7 and 8, on
whose evidence the learned trial Court has given much
emphasis, had been examined by the IO after three
days of the occurrence without any rhyme and reason
and there was an unexplained delay in lodging of
F.I.R. which cast serious doubt in the prosecution case
and these loopholes cannot be plugged in by the
prosecution and therefore, the evidence of P.Ws.7 and
8 should have been eschewed from the zone of
consideration to find out the guilt of the convict. In
summing up his argument, Mr. Das has prayed to
allow the appeal and acquit the appellant of the charge
of murder of the deceased by setting aside the
impugned judgment of conviction and order of
sentence. On the other hand, Mr. P.K. Mohanty,
learned ASC, however, ridiculing the submission of
appellant has submitted that there is absolutely no
rule of law that the evidence of related witness cannot
be relied upon, if the same is found to be reliable and
the same can be relied upon by the prosecution and in
this case, not only P.Ws.5, 7 to 9 and 12 have
supported the prosecution case, but also have
revealed in their evidence describing the act of the
convict in committing murder of the deceased and
there is ample evidence on record to indicate that the
motive behind crime is due to the opposition of the
deceased to the relationship of the convict with his
sister-in-law, which has been squarely stated by the
witnesses and the learned trial Court has rightly
appreciated the evidence of eye witnesses and
accordingly, convicted the appellant for the charge of
murder, which requires no interference in this appeal.
Analysis and Findings of this Court
7. After having considered the rival submissions,
this Court has not only carefully perused the impugned
judgment of conviction, but also has gone through the
evidence extensively and minutely to examine the
legality of the conviction and sentence of the appellant
for the charge of murder. There is no dispute about
the learned trial Court convicting the appellant by
mainly relying upon the evidence of P.Ws. 5, 7 to 9
and 12 and before proceeding to re-appreciate their
evidence, this Court has absolutely no difficulty in
arriving at a conclusion that the deceased had suffered
homicidal death, since it is apparent from the evidence
of Doctor-cum-P.W.16-Dr. Meera Samal conducting
postmortem examination on the cadaver of the
deceased, that the cause of instantaneous death of the
deceased was due to cardiogenic shock following stab
wound into the heart. P.W.16 has further testified in
the Court that the injury on the body of the deceased
was possible by the knife(MO-I) produced before her.
The defence has only cross-examined to dispute about
non-examination of knife by the doctor, but it had
never disputed homicidal death of the deceased. In
view of the evidence of PW16, the oral evidence of
other witnesses and the documentary evidence of
F.I.R., Post Mortem Report and report of casualty
doctor under Ext.11, there cannot be any dispute
about the homicidal death of the deceased. Hence, this
Court concurs with the finding of the learned trial
Court to the effect that the prosecution has
established the homicidal death of the deceased
beyond all reasonable doubt.
8. Adverting to the next and important challenge
of the appellant against the finding of the learned trial
Court holding him responsible for the homicidal death
of the deceased by mainly relying upon the evidence
of related witness, this Court reminds that law has
been well settled that merely because a witness is a
related witness, his evidence cannot be disbelieved
because a related witness may not be interested one,
but on the other hand, the interested witness on the
expectation of deriving some benefit from the result of
some litigation may see his interest directly or
indirectly getting the accused punished due to prior
enmity or for other reasons and thereby, has a motive
to falsely implicate the accused. However, in a criminal
case, it is often seen that commission of offence is
witnessed by the close relative(s) of the victim, whose
presence at the scene of occurrence would be natural
and therefore, evidence of such witness(es) cannot
automatically be discarded by labeling them as
interested witnesses. In the case of a related witness,
the Court has to take great care and circumspection to
evaluate testimony of such witnesses to see as to
whether the testimony of such witnesses is inherently
tainted or has any element of false implication to take
advantage or to settle the grudge/enmity or for some
other reasons, but when the testimony of interested
witnesses, who may be eye witness is consistent and
reliable, their evidence cannot be discarded, rather the
same has to be relied upon.
9. In this case, the testimony of P.Ws.5, 7 to 9
and 12 has been challenged by the appellant as the
evidence of interested witnesses, but P.W.5 is none
other than the wife of the deceased and her presence
may be natural at the scene of occurrence. P.W.5 in
her testimony has stated that when her husband went
outside of the house to clean his hands at about 10.45
P.M. in the night, she heard ho-hulla (commotion)
and rushed to the spot, but found him (deceased)
lying with bleeding injuries and the accused was
standing there being armed with a knife and when
they tried to snatch the knife from his possession, he
declared to give blows with it and her husband raised
alarm 'Marigali Marigali' (screaming) and hearing his
voice, nearby persons gathered there. The testimony
of P.W.5 also transpired that in the evening at about
4.00 P.M. on the occurrence day, the accused had
declared before her to kill the deceased as he was
challenging him pertaining to his(convict) relationship
with P.W.1, who is her sister and the accused dealt
blows to her husband pertaining to his relationship
with P.W.1. In the cross-examination, the defence has
tried to contradict the witness by giving suggestion
that she had not seen the occurrence, but on a careful
perusal of the evidence of P.W.5, this Court, however,
does find P.W.5 to have been contradicted by the
defence with regard to convict standing there holding
a knife and that when they tried to snatch the knife,
the convict threatened them and that her husband
raised hullah "MARIGALI MARIGALI" and that in the
occurrence evening at about 4PM, the convict
threatened her husband to kill by taking note of
his(convict) relationship with PW1. This Court,
however, finds from the evidence of PW5 that the
convict dealt blows to her husband pertaining to
his(convict) relationship with PW1 and such piece of
important evidence of PW5 describing the convict to
have dealt blows to the deceased, was not at all
demolished by the defence in any manner. It is,
therefore, very clear that the evidence of P.W.5 with
regard to accused-convict dealing blows to her
husband pertaining to his(convict) relationship with
P.W.1 could not be contradicted by the defence and
thereby, in the aforesaid piece of un-demolished
evidence, the role of PW5 as a eye witness to the
occurrence cannot be disputed.
10. P.Ws.7 and 8 are none other than the son and
daughter of the deceased and it appears from the
evidence of PW7 that on 31.05.2010 at about 10.45
P.M. his father went outside to clean his hands as he
was about to take dinner and he also accompanied his
father, but he was asked by his father to wait and
while he was in his house, after five minutes, he(PW7)
heard alarming sound of his father 'Marigali Marigali'
(screaming) and when he reached there, he saw his
father lying there and the accused was dealing blows
by a knife on his chest and then they intervened and
tried to snatch away the knife from the possession of
the accused, but the accused threatened them and
thereafter his mother raised hulla and the accused
threw away the knife over the railway track which is
very near to the spot and fled away. Similarly, P.W.8
in her testimony has stated that she rushed to the
spot and found the accused giving blows by a knife on
the chest of her father by giving successive blows.
However, on a comparative reading of evidence of
P.Ws.7 and 8 on the face of evidence of P.W.21-the
I.O., it appears that P.Ws.7 and 8 have been
contradicted by the defence with regard to the
evidence of accused giving blows to the chest of the
deceased by a knife.
11. On the other hand, the evidence of P.W.9
transpires that on 31.05.2010 at about 10.45 P.M., the
occurrence took place and on hearing alarming sound
of the deceased and P.W.7, they rushed to the spot
and found the accused to have already murdered the
deceased and the convict was armed with a knife by
then and the deceased was having pool of blood. In
addition, P.W.9 has of course stated in his evidence
that the convict had dealt blows on the chest and leg
of the deceased, but the defence has contradicted him
with respect to accused dealing blows by a knife to the
deceased. However, his evidence with regard to the
deceased lying with injury at the spot and the accused
was armed with a knife remains uncontroverted and
un-contradicted. A steady scrutiny of evidence of
P.W.12 would, however, only lead to contradict his
evidence on a material point to suggest him to have
not seen the convict giving blows to the deceased by a
knife, but his evidence cannot be disputed with regard
to deceased lying injured at the place of occurrence.
In such circumstance of evidence, especially on a
cumulative and joint reading of evidence of P.Ws. 5
and 9, even by taking the submission advanced for the
appellant, it appears that the evidence of P.W.5 with
regard to "convict dealing blows to her husband
pertaining to his relationship with P.W.1" and the
evidence of P.W.9 with regard to "the convict had
already murdered the deceased and by then he was
armed with a knife and he (convict) dealt blows on the
chest and leg of the deceased" neither could be
disputed nor could be contradicted by drawing their
attention and proving the same as contradictions and
therefore, even by eschewing the evidence of P.Ws.7,
8 and 12 with regard to they not to have seen the
convict dealing blows on the deceased, the evidence of
P.Ws. 5 and 9 remains uncontroverted on the point
that the convict dealt blows to the deceased on his
chest and leg, which also found corroborated by the
medical evidence of Doctor-P.W.16, whose evidence
clearly reveals that the deceased was stabbed on his
chest and leg. It is, therefore, clear that the evidence
of eye witness PWs. 5 & 9 on material aspect is found
credible and worthy of acceptance and it is also
established beyond all reasonable doubt by the
prosecution that the convict had dealt blows to the
deceased by means of a knife (MO-I).
12. It is, however, argued that the prosecution
has not been able to reveal the motive behind the
crime, but such assertion of the appellant appears to
be insignificant because it appears from the evidence
on record that the convict was in some kind of
relationship with P.W.1 and the deceased was
opposing to such relationship. Even the defence has
also given suggestion to P.Ws. 5, 9 and other
witnesses being the family members of the deceased
that the accused refused to marry P.W.1 and out of
that grudge, this false case has been foisted. Further,
P.W.9 in her evidence has also made it clear that the
accused was having relationship with P.W.1, which
was never disputed by the defence in cross-
examination. Further, PW21 in his evidence has also
testified that during investigation he could know that
the deceased was having love relationship with his
sister-in-law which was never challenged by the
defence in cross-examination. The above evidence
clearly suggests that there was a motive behind the
commission of crime by the convict, since the
deceased was opposing to the relationship of the
convict with P.W.1, who is the sister-in-law of the
deceased. Another submission was also advanced on
behalf of the appellant with regard to delay in lodging
of F.I.R., but this Court is never in dilemma to reject
such submission advanced for the appellant inasmuch
as, the occurrence in fact took place at about 10.45
P.M. and the F.I.R. was lodged at 2.00 A.M. in the
midnight, which means after 3 hours 15 minutes of
the occurrence. It is quite natural for a lady, who had
lost her husband just 3 hours ago would definitely like
to take her husband to hospital first in the pursuit of
saving her husband. Further, the Police Station is
around one and half kilometers from the place of
occurrence and the hospital must have been at some
distance. In this situation, especially when a lady has
to take her injured husband (deceased) to hospital and
thereafter learning him to have died, she must have to
take other male members of her family to go to the
Police Station in the midnight and therefore, the time
taken by the informant-P.W.5 to lodge an F.I.R. for
around 3 hours 15 minutes is quite natural and cannot
be considered that delay has occasioned to manipulate
or fabricate the F.I.R. Further, neither any suggestion
was given to the informant-P.W.5 about delay in
lodging of F.I.R. nor had any cross-examination been
made to P.W.5-informant on this score. Merely
because the defence has suggested to the I.O. that
there was a delay in lodging of F.I.R., it would not
make any dent to the veracity of the prosecution case
to suggest that there was a delay in lodging of F.I.R.
to insert the name of the convict. True it is that the
evidence of recovery of MO-I does not inspire any
confidence of the Court, but even after excluding the
evidence of recovery of MO-I, the prosecution has still
established another important circumstance against
the convict and that is the most important
circumstantial evidence available against the convict,
which is found from the evidence of P.Ws.19 and 21 as
their evidence unambiguously transpires about the
seizure of wearing apparels of the convict which
consists of a blue colour jean pant and black colour
ganji and the same have been identified by P.W.21 as
Mos.-II and V, but the seizure of Mos.-II and V have
never been disputed by the defence. On the other
hand, MOs.II and V and the napkin (towel) which was
worn by the deceased at the time of occurrence
identified as MO-IV, was sent to RFSL, Ainthapali,
Sambalpur and the chemical examination report was
received vide Ext.15. It is also not disputed that the
accused was arrested after 17 hours of the occurrence
at about 5.00 P.M. on 01.06.2010 and his wearing
apparels MO-II and V were seized by P.W.21 along
with the biological materials, but the chemical
examination report Ext.15 discloses presence of
human blood stains of B-Group on MO-II and human
blood on MO-V as well as on MO-III, the pair of
chappal of the accused-convict and human blood of B-
Group on MO-IV, which was the napkin of the
deceased, but the convict could not give any
explanation as to the presence of human blood stains
of B-Group on his jean pant and human blood stain on
his ganji and chappal, either by leading any evidence
to dispute the same or giving any plausible
explanation in his statement U/S. 313 of Cr.P.C.,
except giving only routine answer to question No.26 in
his such statement as "false". This is a strong piece of
circumstantial evidence which incriminates the
accused/convict in this case.
13. On a conspectus of the evidence available on
record together with the critical analysis of discussions
made hereinabove, it appears to the Court that the
informant-cum-wife of the deceased had lodged an
F.I.R. promptly after the occurrence within a
reasonable time and her evidence with regard to the
convict dealing blows to her husband and causing
injury to the chest and leg of the deceased is squarely
corroborated by the evidence of P.W.9 which receives
ample corroboration from the medical evidence of
PW16. Besides, the prosecution has also established
the motive behind the crime due to the opposition of
the deceased for the relationship of convict with his
sister-in-law (P.W.1), and consequently, the non-
explanation of the convict to the circumstance of
finding blood stains of the deceased on his wearing
apparels i.e jean pant and human blood on chappal
and t-shirt persuade this Court to infer that the
prosecution has established its case against the
convict for committing murder of the deceased beyond
all reasonable doubt. Thus, by no stretch of
imagination, the conviction of the appellant cannot be
considered to be unsustainable in the eye of law and
therefore, the conviction and sentence of the appellant
having been rendered on proper appreciation of the
evidence by the learned trial Court, the same needs no
interference in this appeal.
14. Resultantly, the appeal being devoid of any
merit stands dismissed on contest. As a logical
sequitur, the impugned judgment of conviction and
order of sentence passed by the learned Additional
Sessions Judge, Rourkela in Sessions Trial No.125 of
2010 are hereby confirmed.
15. Since the appellant is on bail upon appeal, his
bail bonds stand cancelled and he is directed to
surrender to custody forthwith, failing which the trial
Court may take necessary steps to recommit the
convict to custody.
(G. Satapathy)
Judge
D. Dash, J. I Agree.
(D.Dash)
Judge
Reason: Authentication Orissa High Court, Cuttack,
Dated the 2nd day of April, 2024/Subhasmita
Location: High Court of Orissa
Date: 03-Apr-2024 19:12:24
