Orissa High Court
Kanda Majhi vs State Of Odisha on 8 January, 2024
Author: G. Satapathy
Bench: D. Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.198 of 2022
(An appeal U/S.374 of the Code of Criminal Procedure,
1973 against the judgment passed by Sri. Prabir
Kumar Choudhury, 1st Additional District & Sessions
Judge, Baripada in S.T. Case No.140 of 2014
corresponding to G.R. Case No. 67 of 2014 arising out
of Baisinga PS Case No.27 of 2014 of the Court of
learned JMFC, Betenoti)
Kanda Majhi ... Appellant
-versus-
State of Odisha ... Respondent
For Appellant : Mr. S. Sourav, Advocate
For Respondent : Mr. S.K. Nayak, AGA
CORAM:
HON'BLE MR. JUSTICE D. DASH
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :05.12.2023
DATE OF JUDGMENT:08.01.2024
G. Satapathy, J.
1. The appellant, having been convicted by the
learned 1st Additional District & Sessions Judge,
Baripada in ST Case No.140 of 2014 for offence
punishable U/S.302 of Indian Penal Code, 1860
(hereinafter referred to as "IPC") and sentenced to
undergo imprisonment for life with payment of fine of
Rs.5,000/- in default whereof, to undergo Rigorous
Imprisonment (RI) for further period of six months,
has assailed his conviction and sentence in this appeal.
An overview of prosecution case:
2. On 15.02.2014 at about 8.30 AM in the
morning, while PW6 Shyama Marandi was working in
the house of PW2 Laxman Hansdah, the appellant
reached there and told something in the ear of PW2
and, thereafter, PW2 told PW6 that the health
condition of his wife Srimati Marandi (hereinafter
referred to as the "deceased") is serious and asked
him to go to his house, but PW6 did not find his wife-
the deceased in his house and some person informed
him that his wife was lying at Raipita pond and then,
PW6 went there and found his wife-the deceased lying
dead. At that time, PW7-Salga Hansdah informed PW6
that the appellant has committed murder of his wife.
On receipt of such information, PW6 went to
Baisinga police station on the same day i.e.
15.02.2014 and lodged the FIR (Ext.9) at about 10.30
AM against the convict and three others suspecting
them to be involved in this case. Accordingly, PW13-
Niranjan Das registered Baisinga PS Case No.27 of
2014 against the appellant-convict and three others
for offences punishable U/Ss.302/34 of IPC, and took
up the investigation of this case. PW13 accordingly
conducted investigation by examining the witnesses,
preparing the spot map under Ext.10, conducting
inquest over the cadaver of the deceased under Ext.1
and dispatching the dead body of the deceased for PM
examination. PW13 then also seized blood stained &
sample earth from the spot under Ext.4 and,
thereafter, arrested the appellant who gave the
recovery of the weapon of offence "Katuri(MOI)"
pursuant to his disclosure statement and, accordingly,
PW13 seized MOI under seizure list Ext.3. PW13 also
seized the wearing apparels of the appellant under
Ext.7. Further, PW13 sent all the incriminating
materials including the wearing apparels of the
appellant vide MOII and III as well as MOI along with
the wearing apparels of the deceased vide MOIV and V
to RFSL, Balasore for chemical examination and,
subsequently, the chemical examination report under
Ext.15 was received and on conclusion of
investigation, PW13 submitted charge-sheet against
the appellant for commission of offence U/S.302 of IPC
resulting in trial in the present case after denial of
appellant to the charge for aforesaid offence. This is
how the trial commenced.
3. In order to prove the charge, the prosecution
examined altogether 13 witnesses vide PWs.1 to 13,
proved certain documents under Exts.1 to 16 and
identified material objects vide MOI to V as against no
evidence whatsoever by the defence. Of the witnesses
examined in this case, PW6 is the informant, whereas
PW7 is the sole eye witness to the occurrence. PW5 is
the doctor who had conducted autopsy over the dead
body of the deceased and PW13 is the IO. In addition
to these witnesses, PWs.1 to 4 and PWs.8 to 12 are
examined to prove the inquest report, seizure list and
the occurrence in this case.
4. The plea of the appellant 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 trial Court
convicted the appellant mainly on the basis of
evidence of sole eye witness-PW7 and other
circumstantial evidence such as finding of blood stain
of the deceased on the half pant of the appellant as
well as human blood on MOII.
Rival Submissions:
6. In assailing the impugned judgment of
conviction, Mr. S. Sourav, learned counsel appearing
for the appellant has submitted that the evidence of
sole eye witness PW7 is not of sterling quality and,
thereby, her evidence cannot be used to convict the
appellant, unless the same is corroborated by the
evidence of other witnesses and in this case, there is
hardly any corroboration to the evidence of PW7.
Further, Mr. Sourav has also contended that there are
discrepancies in the evidence of PW7 with regard to
visibility of the transaction from the place where she
was standing at the time of occurrence and there
being no evidence to indicate the presence of any
house nearby the place of occurrence, the evidence of
PW7 cannot be believed to convict the appellant. Mr.
Sourav, however, without disputing the homicidal
death of the deceased has submitted that the recovery
of MOI pursuant to the disclosure statement of the
appellant was not in conformity with the requirement
of Section 27 of Indian Evidence Act and, thereby,
such evidence is of no avail for the prosecution.
Accordingly, Mr. Sourav has prayed to allow the
appeal by setting aside the impugned judgment of
conviction and order of sentence.
7. On the contrary, Mr. S.K. Nayak, learned
Additional Government Advocate, however, taking this
Court through the evidence of eye witness has
submitted that the evidence of eye witness is not only
of sterling quality, but it also inspire confidence to act
upon it and the appellant having not been able to
explain the presence of blood stain of the deceased on
his half pant vide MOII, it can be safely said that the
prosecution has established its case against the
appellant for commission of murder of the deceased
beyond all reasonable doubt and, thereby, the
conviction of the appellant cannot be questioned in
this appeal.
Analysis of law and evidence
8. After having carefully bestowed an anxious
consideration to the impugned judgment of conviction
keeping in view the rival submissions vis-à-vis the
evidence on record to test the sustainability of the
conviction and sentence of the appellant, this Court
apparently finds that the learned trial Court has based
the conviction of the appellant primarily on the
evidence of eye witness PW7 together with the
circumstantial evidence of finding of blood stain of the
deceased on MOII as well as finding of human blood
stain of MOI which was recovered pursuant to the
disclosure statement of the appellant, but before
delving upon such evidence to re-evaluate as well as
re-appreciate to examine the legality of the impugned
judgment of conviction, this Court by relying upon the
unchallenged evidence of the doctor, PW5-Asutosh
Mohapatra who had conducted autopsy over the
cadaver of the deceased, concurred with the finding of
the learned trial Court with regard to the homicidal
death of the deceased, which was not challenged by
the appellant in this appeal. Thus, the prosecution is
found to have established the homicidal death of the
deceased by adducing cogent and clear evidence.
9. It is axiomatic, once the homicidal death is
established, the next question comes for consideration
is as to who is responsible for such homicidal death of
the deceased. In this case, the prosecution has
strongly relied upon the eye witness account of PW7-
Salga Hansdah who in the course of her evidence has
clearly stated that her house is adjacent to the Raipita
Gadia and she was cooking rice on the hearth outside
and while she was cooking, she heard the deceased
telling that "Mo Hata Chad (leave my hand)" and then
she saw that the appellant had caught hold of the
hand of the deceased and, thereafter, the appellant
inflicted Katuri(MOI) blow to the back side head of the
deceased. It is her further evidence that she had also
seen the brain matters of the deceased coming outside
of his head and out of fear, she ran towards the village
and intimated the villagers. The defence has of course
elicited some materials in the cross examination of
PW7 which deserves consideration such as the ridge of
the pond is about 5/6 feet height from her house level
and her house is situated towards the eastern side of
the pond and the hearth is situated in front of her
house. Further, it is elicited from the lip of PW7 that
the distance from the ridge of the pond to her house is
about 20/25 feet and the back side of her house facing
towards the pond, but strangely enough the defence at
the same vigor has brought out from the lip of PW7 in
cross-examination that the accused(appellant) had
assaulted the deceased on the ridge of the pond. At
the same time, the defence has tried to contradict the
witness with regard to her not stating before the IO
that the deceased had told to the appellant "Mo hata
Chada", but that is not significant since it is found
from the statement of the PW7 before the IO in her
statement that the deceased had told to the appellant
"Chada Chada"(leave leave). However, the dispute
with regard to the visibility of the place of the
occurrence from the house of the eye witness, it
appears that the learned trial Court has given
sufficient reasoning for this, such as PW7 saw the
incident by standing in front of hearth of her house,
which was situated outside her house. Additionally, the
IO PW13 has proved the spot map under Ext.10 which
reveals that the occurrence place was on the
embankment of Raipita pond located on the northern
side of the village Angarua and the house of PW7 was
situated on the southern west corner of the
embankment. There is nothing substantial elicited
from the lip of IO PW13 to dispute about Ext.10.
Further, the cross examination of PW7 discloses that
the embankment was at height from her house and,
thereby, it cannot be said that the spot which was on
the embankment of the pond Raipita cannot be seen,
especially when the occurrence took place in the
morning at about 8.30 AM at broad day light and there
is no intervening houses between the ridge of the
pond and the house of PW7. Besides, it was never
suggested to PW7 that the spot was not visible from
her house.
10. Be that at it may, the evidence of PW7 also
transpires that she had been to the occurrence place
for washing something just few minutes before the
occurrence and she had seen the deceased in such
pond at that time. The conduct of PW7 was also
normal, since after the occurrence, PW7 ran towards
village to intimate the villagers, which is the normal
conduct of a lady after seeing such an occurrence. Law
is well settled that the evidence is to be weighed, but
not to be counted and Section 134 of Indian Evidence
Act provides that to prove a fact, no particular number
of witness is required and even the evidence of
solitary witness is enough to prove a fact in issue. In a
case of murder, if the evidence of solitary eye witness
is truthful, credible and free from blemishes or
infirmities, it can certainly be relied upon. A careful
scrutiny of evidence of PW7, this Court finds it to be
credible and acceptable.
11. It is, however, true that the appellant
seriously challenges the recovery of weapon of offence
MOI and its use in commission of the crime as well as
the opinion of PW5 to the query as to the possibility of
injuries by said MOI. Adverting to the circumstantial
evidence in this case, it appears that the prosecution
has examined PW3 to prove the disclosure statement
of the appellant and recovery of MOI, but the evidence
of PW3 does not satisfy the requirement of Section 27
of Indian Evidence Act and, thereby, the evidence of
PW3 is of no avail with regard to recovery of MOI. On
the other hand, the other witness to the disclosure
statement namely Biswanath Hembram has not been
examined by the prosecution and, therefore, the only
evidence of PW13 is remaining with regard to prove of
disclosure statement of the deceased, but the
evidence of PW13 also does not fulfil the requirement
of Section 27 of Indian Evidence Act and, therefore,
the concealment of MOI to the exclusive knowledge of
the appellant cannot be attributed to him, but the
seizure of MOI has never been disputed by the defence
and it is also not disputed by the defence that MOI as
well as the wearing apparels of the appellant vide
MOII and III and wearing apparels of the deceased
vide MOIV and V were sent to RFSL, Balasore along
with other incriminating materials for chemical
examination and the chemical examination obtained
vide Ext.15 discloses the presence of human blood on
MOI as well as the presence of human blood of Group-
A on MOII which is the half pant of the appellant and
presence of human blood of Group-A on MOIV and V
and, therefore, it is clear that the deceased's blood
was of Group-A which was found on the half pant
(MOII) of the appellant, but the appellant has failed to
explain as to how the blood stain of the deceased was
found on his wearing apparels which is definitely a
strong circumstance against the appellant unerringly
pointing towards his guilt.
12. A careful conspectus of the evidence on
record, it goes without saying that the prosecution has
established its case against the appellant for
commission of murder of the deceased through eye
witness (PW7) account, which was further
strengthened by the circumstance of non-explanation
of the accused-appellant with regard to presence of
blood stain of the deceased on his half pant and it can
safely be said that the charge against the appellant
has been squarely established by the prosecution
beyond all reasonable doubt.
13. Resultantly, the appeal sans merit stands
dismissed on contest, but in the circumstance, there is
no order as to costs. Consequently, the impugned
judgment of conviction and order of sentence as
recorded on 18.01.2022 by the learned 1st Additional
District & Sessions Judge, Baripada in ST Case No.140
of 2014 are hereby confirmed.
(G. Satapathy)
Judge
I Agree
(D.Dash)
Judge
Orissa High Court, Cuttack,
Dated the 8th day of January, 2024/Subhasmita
Location: High Court of Orissa
