Orissa High Court
Ghana Majhi And Others 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 Nos.547 of 2015 & 345 of 2016
(Appeals U/S.374 of the Code of Criminal Procedure,
1973 against the common judgment passed by Sri.
S.P.Nayak, Addl. Sessions Judge, Bhawanipatna in C.T.
Case No.8/31 of 2013(Sessions) arising out of
Biswanathpur PS Case No.14 of 2012 corresponding to
CT(GR) Case No. 622 of 2012 of the Court of SDJM,
Bhawanipatna).
Ghana Majhi and others ... Appellants
(In CRLA No.547 of 2015)
-versus-
State of Odisha ... Respondent
Ghana Majhi and others ... Appellants
(In CRLA No.345 of 2016)
-versus-
State of Odisha ... Respondent
For Appellants : Mr. S.K.Mohanty, Advocate
For Respondent : Mr. S.N.Das, ASC
CORAM:
HON'BLE MR. JUSTICE D. DASH
HON'BLE MR. JUSTICE G. SATAPATHY
DATE OF HEARING :13.11.2023
DATE OF JUDGMENT:08.01.2024
G. Satapathy, J.
1. The same appellants have filed these two
appeals on two different dates assailing the judgment
of conviction passed on 30.09.2015 by learned
Additional Sessions Judge, Bhawanipatna in CT Case
No.8/31 of 2013 (Sessions) convicting the appellants
for offences punishable U/Ss.302/201/34 of IPC and
sentencing each of the convicts to undergo
imprisonment for life with payment of fine of
Rs.30,000/-, in default whereof, to undergo further
Rigorous Imprisonment (RI) for six months for
offence U/Ss.302/34 of IPC and to undergo RI for
three years with payment of fine of Rs.10,000/-, in
default whereof, to undergo RI for six months for
offences punishable U/Ss.201/34 of IPC with direction
of running of the sentences concurrently.
An overview of prosecution case:
2. Suspecting Bandar Majhi (hereinafter referred
to as the "deceased") responsible for the death of
Busuta Majhi (father of A-2) who died due to some
disease around eight years back by practizing
witchcraft, the co-villagers were quarreling with the
family members of the deceased and when the father
of A-1 namely, Amiti Majhi died due to some disease
around two months before the date of occurrence,
the co-villagers suspected the deceased for practizing
witchcraft and accordingly, the appellants and others
threatened the deceased to kill him. Due to such
threat of co-villagers, the deceased left the village
and was staying at Kutruguda in the house of his
brother-in-law, but on 09.08.2012 A-1 and A-4 came
to the house of the deceased and asked her wife to
intimate him to attend the village meeting on Friday
to compromise the matter, however, the deceased
could not attend the meeting. Prior to the meeting, A-
3 had also asked the wife of the deceased to call him
to the village from Kutruguda. Accordingly, on
11.08.2012 at about 7 PM, a meeting was held in
front of the house of Chitra Majhi and the appellants
and some others attended the said meeting wherein
the deceased was accused of killing the co-villagers
by practizing witchcraft. The said meeting was also
attended by the deceased, his wife Mangu
Majhi(PW9) & his brother namely Fagun Majhi(PW10)
and one Bhasani Bhuki Majhi(PW15) with her
husband namely Tadingi Majhi(PW14). While the
meeting was going on, A-3 provoked the villagers
present in the meeting to finish the deceased and all
of a sudden, one co-villager Chitra Majhi assaulted
the deceased on his back and thereafter, the
appellants and others dealt slap and kick blows to the
deceased and the deceased fell down on the ground.
When the deceased fell down on the ground, A-3 and
others threatened the wife of the deceased(PW9) to
leave the spot, otherwise she would be finished and
out of fear, the wife of the deceased left the spot and
concealed herself inside the house, but till the next
date morning, the deceased did not return to his
house and the wife of the deceased suspected the co-
villagers to have killed her husband and she
accordingly searched for her husband and intimated
the fact to Gramrakhi and thereafter, the Gramrakhi
and her brother-in-law Fagun Majhi informed the wife
of the deceased that someone was buried in the
village graveyard.
Basing on the information, the wife of the
deceased lodged a FIR on 13.08.2012 at about 12.30
PM being scribed by one Basant Kumar Sahoo against
the appellants before the IIC, Biswanathpur PS under
Ext.13 paving the way for registration of
Biswanathpur PS Case No.14 of 2012 resulting in
commencement of investigation by the IIC,
Biswanathpur, PW19-Gobinda Chandra Buruda, who
in the course of investigation examined the informant
and witnesses, visited the spot, disinterred the dead
body(trunk), held inquest over the dead body in
presence of Executive Magistrate under Ext.10. PW19
also disinterred severed head of the deceased from a
nearby place and held inquest over the head in
presence of Executive Magistrate under Ext.9 and he
thereafter, held inquest of the complete dead body of
the deceased by keeping the head and the
body(trunk) jointly in presence of Executive
Magistrate under Ext.8. PW19 also dispatched the
dead body for post mortem examination and also
collected the blood stained earth and sample earth
from the spot of occurrence under Ext.1/1 and on
16.08.2012, PW19 arrested the appellants and seized
their wearing apparels as well as their biological
materials being collected at PHC, Biswanathpur.
PW19 handed over charge of investigation to PW18-
Biswajit Manbodh who completed the other
formalities of investigation and submitted charge-
sheet against the appellants by keeping the
investigation open for arrest of two other absconding
accused persons. In the course of investigation, the
incriminating materials were also sent to SFSL for
chemical examination and the chemical examination
report was obtained vide Ext.16.
3. Finding the sufficient materials, the learned
SDJM, Bhawanipatna took cognizance of offence
U/Ss.302/201/34 of IPC under which the appellants
faced the trial after they abjured their guilt for the
said offences. This is how the trial in this case
commenced.
4. In support of the charge, the prosecution
examined nineteen witnesses in all vide PWs.1 to 19
and proved certain documents under Exts.1 to 16 as
well as identified material objects vide MOI to MOXI
in evidence as against the oral evidence of two
witnesses vide DWs.1 and 2 namely Buda Majhi and
Kate Majhi by the defence. Of the witnesses
examined by the prosecution, PWs.1 to 5 are the
witnesses to the seizure whereas PWs.6 to 8 are the
co-villagers of the deceased. PW9-Mangu Majhi is the
wife of the deceased-cum-informant in this case,
whereas PW10-Fagun Majhi (brother of the
deceased), PW14-Tadingi Majhi (brother-in-law of the
deceased) and PW15-Bucki Majhi (sister-in-law of the
informant) are eye witnesses to the occurrence.
PWs.11 to 13 and PW.16 are the witnesses to the
inquest. PW.17-Dr. Sunil Kumar Padhi is the doctor
who conducted autopsy over the dead body of the
deceased. PWs.18 and 19 are the two IOs in this
case.
5. The plea of the appellants in the course of trial
was denial simplicitor and false implication.
6. After appreciating the evidence on record
upon hearing the parties, the learned trial Court
convicted the appellants by mainly relying upon the
evidence of eye witnesses PWs.10, 14 and 15 as well
as circumstantial evidence of last seen theory. Being
aggrieved with the conviction, the appellants first
filed CRLA No.547 of 2015 and thereafter, again filed
another CRLA No.345 of 2016, but noticing the filing
of two criminal appeals against the same judgment,
this Court by way of order No.5 dated 21.10.2016
directed to take both the criminal appeals
simultaneously for consideration, although the
counsel for the appellants in subsequent appeal i.e.
CRLA No.345 of 2016 wanted to withdraw it.
Rival Submissions:
7. In assailing the impugned judgment of
conviction, Mr. S.K. Mohanty, learned counsel
appearing for the appellants in both the appeals has
submitted that although the learned trial Court has
convicted the appellants by applying "last seen
theory", but the material evidence on record does not
justify the invocation of doctrine of "last seen theory"
in this case and a bare perusal of deposition of
material witnesses would only go to indicate about
some trivial allegation against the appellants for
dealing slaps and kick blows to the deceased and
thereby, the conviction of the appellants for offence
U/Ss.302/201/34 of IPC is unsustainable in the eye of
law. It is further submitted by Mr. Mohanty that the
evidence of so called eye witnesses are full of
contradictions & exaggerations and thereby, it cannot
be relied upon to base conviction against the
appellants. It is further submitted that neither the
eye witness account of witnesses is inspiring
confidence nor the circumstantial evidence deserves
any credence and thereby, the evidence being wholly
unacceptable, the conviction of the appellants for
offences U/Ss.302/201/34 of IPC is unsustainable and
is thereby, required to be set aside. Mr. Mohanty has
accordingly, prayed to allow the appeals by setting
aside the conviction of the appellants.
8. On the other hand, Mr. S.N. Das, learned
Additional Standing Counsel, however, by taking this
Court to the evidence of eye witnesses, has
submitted that not only the evidence of these three
eye witnesses to the occurrence is free from any
biases, but also establishes the guilt of the appellants
for the offences beyond all reasonable doubt and,
thereby, the conviction and sentence of the
appellants being on sound appreciation of evidence, it
cannot be faulted with and thereby, both the appeals
merit no consideration. Mr. Das has, accordingly,
prayed to dismiss both the appeals.
Analysis of law and evidence
9. Gone through the impugned judgment of
conviction carefully together with the evidence on
record extensively keeping in view the rival
submissions to examine the sustainability of the
conviction and sentence of the appellants as awarded
to the appellants by the learned trial Court. Quite
understandably, there are two important aspects in a
case of murder; firstly, the proof of homicidal death
of the deceased and secondly, who is the author of
such homicidal death of the deceased. In order to
ascertain the cause of death, the best evidence is the
evidence of doctor and in this case, the doctor
namely S.K. Padhi being examined as PW17 has
testified in the Court that on 14.08.2012 at about
3.30 PM, he conducted the post mortem examination
over the dead body of the deceased on police
requisition and it is his specific evidence that the
death of the deceased was homicidal in nature.
Although, the defence has cross-examined the doctor
at length, but there is hardly any chance to dispute
the opinion of the doctor as to the cause of death of
the deceased to be homicidal in nature. Even
otherwise, there was no suggestion by the defence to
dispute the homicidal death of the deceased and
thus, the prosecution appears to have clearly
established the homicidal death of the deceased
objectively even by leaving the evidence of eye
witnesses account, which confirms the death of the
deceased to be homicidal in nature.
10. There is no quarrel over the position of law
that merely establishing the homicidal death of the
deceased would not by itself and without anything
more would not prove the charge of murder against
the offenders, unless there is positive and subjective
evidence on record to establish the complicity of the
offenders to the charge of murder. In this case, the
prosecution wholly relies upon the evidence of three
eye witnesses who are PWs.10, 14 and 15 to bring
home the charge against the appellants for the
murder of the deceased. It is, therefore, required to
be seen as to how the defence has got over the
evidence of the three eye witnesses. PW10 is none
other than the brother of the deceased and his
evidence clearly discloses the motive behind the
crime and the mode and manner of commission of
crime by the appellants. It is transpired from the
evidence of PW10 that the accused persons
(appellants) were blaming the deceased for the death
of Busuta Majhi and Amiti Majhi and they were
threatening to kill the deceased who had left the
village out of fear and was staying in the house of his
sister Dumri in village Kutruguda. It is the further
evidence of PW10 that while the meeting was going
on, one Chitra Majhi assaulted the deceased by
means of thenga and all the accused persons and
others assaulted the deceased by dealing fist and kick
blows and due to such assault, the deceased died at
the spot. In such situation, what would be the
conduct of the relative of the victim would certainly
be to desist the assailants from assaulting the victim
or to rescue the victim and as usual of such conduct
of the relative of the victim, PW10 has also stated in
his evidence to have tried to rescue the deceased
along with his brother-in-law Tadingi Majhi (PW14),
informant (PW9) and his sister Bucki Majhi (PW15),
but they could not rescue due to obstruction of the
accused persons and others. It is the further evidence
of PW10 that the accused persons (appellants) and
others took away the dead body of the deceased
towards river side and they buried the dead body
inside the said river. Although, PW10 was cross-
examined at length on three dates, but nothing
substantial benefitting the defence was elicited from
his mouth, rather the defence has only tried to
contradict the witness, but it has failed to prove any
material contradiction by confronting the same to the
IO.
11. Yet another eye witness to the occurrence is
P.W.14 who testified in the Court, he along with his
wife P.W.15-Bucki Majhi had been to village Kuburi to
attend the village meeting which was convened on
the allegation that the deceased was doing witchcraft
and Amdi died for such witchcraft. It is the categoric
and specific evidence of PW14 that the accused Chitra
assaulted the deceased by means of a split wood on
his back and thereafter all the accused persons dealt
fist and kick blows to the deceased and the deceased
fell down on the ground, but when they tried to
rescue the deceased, the villagers threatened them
for which, they left the spot and on the next day, his
brother-in-law PW10 informed him that the accused
persons(appellants) had killed the deceased and
buried inside sand. It is also not disputed that PW14
is the brother-in-law of the deceased being the
husband of sister of the deceased. What cannot be
lost sight of is that it was elicited from the lip of
PW14 in cross-examination, he along with PW10-
Phagunu Majhi went to Reth river side and PW10 has
shown the dead body of the deceased to have been
buried and he has seen a cut injury on the right
upper arm of the dead body. Nothing substantial was
elicited from his mouth to benefit the defence. On
coming to the evidence of other eye witness PW15-
Bucki Majhi, it transpired that on a Saturday, she, her
husband and the informant had attended the meeting
in village Kubri and the accused persons(appellants)
alleged Bandra Majhi for doing witchcraft. It is the
specific evidence of PW15 that the appellant Ghana
assaulted the deceased by means of an axe causing
injury on his neck and all the accused
persons(appellants) took away the deceased towards
river Reth. It is surprising, but true that the defence
has cross-examined PW15 to elicit material evidence
"Ghana(A-1) assaulted the deceased by the sharp
edge of the axe" which only favours the prosecution
case. From a careful analysis of evidence of these
three witnesses PWs. 10, 14 & 15, it is revealed that
the deceased was practicing witchcraft according to
the accused persons(appellants) and that is why,
they called the meeting wherein the deceased was
killed and therefore, the motive behind murder of the
deceased was on account of suspicion by the accused
persons(appellants) for the deceased practizing
witchcraft.
12. Besides, the prosecution establishing the
appellants to have assaulted the deceased by the
evidence of these three eye witnesses, the further
evidence on record transpired that the beheaded
dead body of the deceased was recovered from the
sand on the bank of river Reth and the head was also
recovered from a nearby place being wrapped in a
gunny bag. Furthermore, on a cursory glance of
evidence of PW19, the IO in this case, it revealed that
he had seized the wearing apparels of the appellants
which were proved and identified by him in the Court
vide MOI to MOX and he had sent these incriminating
MOs to SFSL, Rasulgarh for chemical examination and
accordingly, the chemical examination report was
obtained and proved under Ext.16 which discloses
presence of human blood patches on the wearing
apparels of appellant Ghana Majhi and Kesab Majhi
who could not explain as to how their wearing
apparels were found stained with human blood
patches.
13. It is, however, true that the defence has
examined two witnesses in the defence. Out of
whom, the evidence of DW1-Buda Majhi is of no avail
for the defence, whereas the evidence of DW2-Kate
Majhi discloses about recovery of a human trunk
without head from the river side and the severed
head from a separate place near the river Reth and
the trunk and head were of the deceased Bandra
Majhi. This evidence of DW2 only goes to support the
prosecution case about recovery of the trunk and
head of the deceased which in the circumstance only
lend assurance to the prosecution case.
14. On an overview assessment of totality of
evidence on record, it is found that the prosecution
has proved the death of the deceased to be homicidal
in nature beyond all reasonable doubt and the
appellants were responsible for assaulting the
deceased in the village meeting and the motive
behind such assault of the deceased was for suspicion
of practizing witchcraft and the appellants held the
deceased responsible for the death of father of A-1
and A-2 who had died previously, by witchcraft. It is
also established by the prosecution that the deceased
was taken by the appellants after brutally assaulting
him and subsequently the "trunk and head" of the
deceased were recovered. The evidence of eye
witnesses were not only credible, cogent and
believable, but also the circumstance of recovery of
the "trunk and head" of the deceased subsequently
after appellants taking away by brutally assaulting
him and this Court, therefore, found the view taken
by the learned trial Court to be free from any
infirmity and plausible one and does not suffer from
any perversity.
15. In the aforesaid facts and circumstance
coupled with analysis of the impugned judgment on
re-appreciation of evidence on record in the light of
rival submissions, this Court has no hesitation to
concur with the findings arrived at by the learned trial
Court since the prosecution appears to have
established the guilt of the accused
persons(appellants) for committing murder of the
deceased beyond all reasonable doubt.
16. Resultantly, both the appeals stand dismissed
being devoid of merit, but no order as to cost. The
judgment and order of conviction passed on
30.09.2015 by the learned Additional Sessions Judge,
Bhawanipatna in CT Case No.8/31 of 2013 (Sessions)
are hereby confirmed.
(G. Satapathy)
Judge
I Agree
(D.Dash)
Judge
Signed by: KISHORE KUMAR SAHOO
Location: High Court of Orissa
Date: 10-Jan-2024 10:08:08 Orissa High Court, Cuttack,
Dated the 8th day of January, 2024/Kishore
