Orissa High Court
Govinda Nayak vs State Of Odisha on 2 January, 2024
Author: S.K. Sahoo
Bench: S.K.Sahoo
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA NO.54 OF 2008
From judgment and order dated 22.05.2008 passed by the
Adhoc Additional Sessions Judge, Sundargarh in Sessions Trial
No.97/18 of 2007.
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Govinda Nayak ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Jiban Ranjan Dash
Advocate
For Respondent: - Mr. Priyabrata Tripathy
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K.SAHOO
AND
THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH
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Date of Hearing: 06.12.2023 Date of Judgment: 02.01.2024
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S.K. SAHOO, J.: The appellant Govinda Nayak faced trial in the Court
of learned Adhoc Additional Sessions Judge, Sundargarh in
Sessions Trial No.97/18 of 2007 for offence punishable under
section 302 read with section 34 of the Indian Penal Code
Signature Not Verified
Digitally Signed // 2 //
Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
(hereinafter 'I.P.C.') on the accusation that on 06.03.2007 at
about 7.30 p.m. at village Baladmal (Kissan Pada), he in
furtherance of common intention with Abhi Nayak (Juvenile)
committed murder of Dharani @ Bhainra Kumura (hereafter 'the
deceased') by assaulting him on his head and neck with an axe.
The learned trial Court vide impugned judgment and
order dated 22.05.2008 found the appellant guilty under section
302 of I.P.C. and sentenced him to undergo rigorous
imprisonment for life and to pay a fine of Rs.10,000/- (rupees
ten thousand), in default of payment of fine, to undergo
imprisonment for one year.
Prosecution Case:
The prosecution case, as per the first information
report (hereinafter 'F.I.R.') lodged by Duryodhan Kumra (P.W.6)
before the I.I.C. of Sadar police station, Sundargarh on
06.03.2007, in short, is that the deceased was his younger son
and on that day in the evening hours, after taking his food, the
deceased had been to the house of co-villager Kalia Kissan
(P.W.5) for collecting his wages. While the informant was in his
house, P.W.5 and his son Bijay Kissan came to the house of the
informant at about 07.30 p.m. and informed that the appellant
and his brother co-accused Abhi Nayak quarreled with the
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Digitally Signed // 3 //
Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
deceased and the appellant committed murder of the deceased
with an axe and then both the accused fled away. Getting such
information, P.W.6 and his son Abhi Kumra came to the spot and
found the deceased lying dead with bleeding injuries in front of
the house of P.W.5. The co-villagers also assembled at the spot
where the dead body was lying.
P.W.6 lodged the written report before P.W.11, the
I.I.C. of Sadar Police Station, Sundargarh which was scribed by
Suresh Munda (P.W.2) and since the said report revealed a
cognizable case, P.W.11 registered Sundargarh Sadar P.S. Case
No.12 dated 06.03.2007 under section 302/34 of the I.P.C.
against the appellant and his brother Abhi Naik and directed
P.W.10 Harihar Naik, S.I. of police of Sadar Police Station to take
up investigation of the case. P.W.10 examined the informant and
the scribe of the F.I.R. (P.W.2) and recorded their statements
and also took steps for guarding the dead body. At about 11:00
p.m. on 06.03.2007, P.W.10 along with P.W.11 arrived at the
spot and P.W.10 prepared the spot map vide Ext.14. He also
examined other witnesses and recorded their statements. On
07.03.2007, P.W.10 sent requisition to the scientific team to
examine the spot and he himself seized blood stained earth and
sample earth from the spot in presence of the witnesses and
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Digitally Signed // 4 //
Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
prepared seizure list vide Ext.3. He also conducted inquest over
the dead body over the deceased in presence of the witnesses
and prepared inquest report vide Ext.2. He dispatched the dead
body for its post mortem examination. On 07.03.2007 at 3.00
p.m., P.W.10 apprehended the appellant as well as his brother
co-accused Abhi Naik and while in police custody, the appellant
made a statement regarding concealment of the weapon of
offence i.e. axe which he stated to have kept inside the thatched
roof of his house and further stated that he could give recovery
of the same. The statement of the appellant was recorded under
section 27 of the Evidence Act vide Ext.4/1 and pursuant to such
statement, the appellant led P.W.10 and other witnesses to the
place of concealment of the axe i.e. his house and gave recovery
of the same which was found to be stained with blood. P.W.10
accordingly prepared the seizure list Ext.5/1 and he also seized
the wearing apparels of the co-accused Abhi Naik as per seizure
list Ext.6/2 so also the wearing apparels of the appellant as per
seizure list Ext.7/1. He also seized wearing apparels of the
deceased after post mortem examination on being produced by
the constable in presence of the witnesses as per seizure list
Ext.9. On 08.03.2007, P.W.10 sent both the appellant and the
co-accused for collection of their nail clippings and blood sample
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Digitally Signed // 5 //
Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
and received the report and accordingly seized the same when it
was produced before him in separate sealed packets as per
seizure list Ext.10. On 08.03.2007, P.W.10 forwarded both the
appellant and the co-accused to Court in custody. He received
the post mortem report and sent requisition to the doctor who
conducted the post mortem examination to examine the axe and
to answer his query and he also received the query report from
the doctor. The investigation of the case was taken over by
P.W.11 as per the order of the S.P., Sundargarh. P.W.11 also
examined some of the witnesses, recorded their statements and
on 03.07.2007, he made a prayer before the learned S.D.J.M.,
Sundargarh to send the seized exhibits to R.F.S.L., Sambalpur
for chemical examination and opinion, which was accepted and
the seized exhibits were submitted before the R.F.S.L.,
Sambalpur and on completion of investigation, P.W.11 submitted
charge sheet under section 302/34 of the I.P.C. against the
appellant and the co-accused Abhi Naik.
Framing of charge:
After submission of charge sheet, the case was
committed to the Court of Session following due procedure
where the learned trial Court framed charge against the
appellant as aforesaid on 04.04.2008 and since the appellant
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Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
pleaded not guilty and claimed to be tried, the sessions trial
procedure was resorted to establish his guilt .
Prosecution Witnesses, Exhibits & Material Objects:
During course of the trial, in order to prove its case,
the prosecution examined as many as eleven witnesses.
P.W.1 Bijay Kisan is an eye witness to the occurrence
and he stated to have seen the appellant giving an axe blow on
the back side head of the deceased and another blow on the
neck of the deceased for which the deceased sustained bleeding
injuries. He further stated that upon seeing the incident, he
raised hulla for which some people gathered at the spot and the
appellant and the co-accused fled away.
P.W.2 Suresh Munda was the Sarpanch of Baragad
Gram Panchayat who stated that on the relevant evening, he got
information about murder of the deceased and upon getting such
information, he rushed to the spot and found the deceased lying
dead sustaining injuries on his head and neck with profused
bleeding. He is also the scribe of the F.I.R. (Ext.1). He is also a
witness to the preparation of inquest report vide Ext.2. The
police seized blood stained earth and sample earth from the spot
in his presence as per seizure list Ext.3.
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Digitally Signed // 7 //
Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
P.W.3 Rabishankar Padhi was working as a constable
at Sadar Police Station, Sundargarh. He is a witness to the
seizure of command certificate along with receipt of the seized
exhibits from R.F.S.L., Sambalpur as per seizure list Ext.8.
P.W.4 Narottam Tanty was working as a constable at
Sadar Police Station, Sundargarh. He is a witness to the seizure
of the wearing apparels of the deceased as per seizure list Ext.9.
He is also a witness to the seizure of the blood sample and nail
clippings of the appellant as per seizure list Ext.10.
P.W.5 Dhaneswar Kisan @ Kalia stated that on the
fateful day, the deceased along with the appellant and another
person were working in his under construction house. He further
stated that at about 6.30 p.m., they had come to his old house
for collecting their wages but as he did not pay them their
remuneration, they left. Subsequently, he was informed by
P.W.1 that the appellant had committed murder of the deceased
and when he rushed to the spot, he found the deceased lying
dead with profused bleeding. He is a witness to the preparation
of the inquest report vide Ext.2.
P.W.6 Duryodhan Kumra is the father of the
deceased and also the informant of the case who stated to have
been informed about the murder of the deceased by P.W.1 and
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Digitally Signed // 8 //
Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
P.W.4. Upon getting such information, he rushed to the spot and
found the deceased lying dead on the ground sustaining bleeding
injuries on the back side of his head and neck. He is a witness to
the preparation of inquest report vide Ext.2.
P.W.7 Saraswati Nayak is the aunt (younger sister of
the father) of the appellant who stated that on the date of
occurrence at about 5.30 p.m., the deceased asked her for
bhang and when she refused to give, the deceased caught hold
of her and embraced her. She further stated that at that time,
the appellant came to her house and told her son that the
deceased outraged her modesty for which her son dealt two
slaps on her cheek. She was declared hostile by the prosecution.
P.W.8 Dr. Lipika Dei was working as the Asst.
Suregon at the District Headquarters Hospital, Sundargarh who
on police requisition held autopsy over the dead body of the
deceased. She proved her report vide Ext.11. She also examined
the weapon of offence on the query made by the I.O. and
submitted query report vide Ext.12.
P.W.9 Laxman Kumura is another eye witness to the
occurrence and he stated that on the date of occurrence, he
went to perform construction work in the house of P.W.5 along
with the appellant as well as the deceased. He further stated that
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Digitally Signed // 9 //
Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
while they were returning from the house of P.W.5, the deceased
seeing P.W.7 asked her to provide khaini (tobacco). He further
stated that pursuant to such request, a quarrel ensued between
the deceased and the appellant and he left the spot. When he
returned, the appellant was not present at the spot and when he
(P.W.9) was talking with the deceased at about 7.30 p.m., he
noticed the appellant arriving at the spot holding an axe and he
further stated that the appellant dealt axe blows on the back side
of the head and neck of the deceased.
P.W.10 Harihar Nayak was working as the S.I. of
police at Sadar Police Station, Sundargarh who is the initial
investigating officer of the case.
P.W.11 Paramananda Sahoo was posted as the
I.I.C., Sadar Police Station, Sundargarh who upon receiving the
written report from the informant (P.W.6) registered the case
and directed P.W.10 to take up investigation of the case.
Subsequently, he took over charge of investigation from P.W.10
and upon completion of investigation, submitted the charge
sheet.
The prosecution also exhibited eighteen documents.
Ext.1 is the F.I.R., Ext.2 is the inquest report, Exts.3, 4/1, 5/1,
6/2, 7/1, 8, 9 and 10 are the seizure lists, Ext.11 is the post
JCRLA No.54 of 2008 Page 9 of 33
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Digitally Signed // 10 //
Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
mortem report, Ext.12 is the query report, Ext.13 is the
command certificate, Ext.14 is the spot map, Ext.15 is the dead
body challan, Ext.16 is the prayer made by the I.O. to the
learned S.D.J.M., Sundargarh to send the exhibits to R.F.S.L.,
Sambalpur, Ext.17 is the copy of forwarding memo of exhibits
and Ext.18 is the chemical examination report.
The prosecution also proved eight material objects.
M.O.I is the axe, M.O.II is the green colour full pant of the
appellant, M.O.III is the orange colour sweater of the appellant,
M.O.IV is the green colour banian of the appellant, M.O.V is the
black colour full pant of the deceased, M.O.VI is the ash colour
underwear of the deceased, M.O.VII ash colour shirt of the
deceased and M.O.VIII is the blue colour half banian of the
deceased.
Defence Plea:
The defence plea of the appellant is one of complete
denial.
Findings of the Trial Court:
The learned trial Court, after assessing the oral as
well as the documentary evidence on record, came to hold that
from the facts and circumstances and from the ocular and
medical evidence, the nature of death of the deceased has been
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Digitally Signed // 11 //
Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
clearly established to be homicidal. It was further held that from
the analysis of the testimonies of P.Ws.5, 7 and 9, it was clearly
established that the appellant was all along present with the
deceased till he breathed his last. After analyzing the evidence of
eye witnesses P.Ws.1 and 9, it was held that they were present
at the time of assault made by the appellant on the deceased
which was very clear, cogent, consistent and inspired confidence
regarding their credibility. The learned trial Court also accepted
the evidence adduced by the prosecution witnesses regarding
leading to discovery of axe (M.O.I) at the instance of the
appellant and further held that the presence of human blood on
the axe as would be evident from the C.E. report can be used as
a piece of evidence against the appellant. It was further held
that such evidence against the appellant in presence of direct
evidence as well as circumstantial evidence linked the chain
about his presence and his participation. The learned trial Court
summed up that the appellant alone was the author of the crime
and he had the nexus with the murder of the deceased and it
was his cool and calculated work with premeditation, preparation
and intention to murder the deceased by assaulting him brutally
and mercilessly by means of a deadly weapon like M.O.I. on the
JCRLA No.54 of 2008 Page 11 of 33
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Digitally Signed // 12 //
Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
vital organ like head and neck and accordingly, the appellant was
held guilty under section 302 of the I.P.C.
Contentions of the Parties:
Mr. J.R. Dash, learned counsel appearing for the
appellant contended that though it is the prosecution case that
P.W.1 and P.W.9 are the two eye witnesses to the occurrence,
but P.W.1 has not stated about the presence of P.W.9 at the
scene of occurrence even though the latter was stated to be
standing very close to the deceased. P.W.9 on the other hand
stated that he had not noticed any other person in and around
the spot. Though P.W.1 has stated about the existence of houses
of number of persons around the spot and hearing his hullah,
Raju Munda and Pradip Nayak arrived at the spot, but none of
such persons have been examined. It is argued that there are
material contradictions in the evidence of both the eye witnesses
and therefore, the learned trial Court should not have placed
reliance on the same. He argued that after the seizure of axe
(M.O.I) at the instance of the appellant, it was not kept in sealed
condition and there is inordinate delay in sending the weapon for
C.E. examination and there is also absence of material regarding
safe custody of the weapon before its dispatch for C.E.
examination and therefore, no importance is to be attached to
JCRLA No.54 of 2008 Page 12 of 33
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Digitally Signed // 13 //
Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
the finding of human blood stains on the axe in the C.E. Report
(Ext.18). He argued that though P.W.9 stated that the appellant
assaulted the deceased by the sharp side of the axe to his head
and neck, but the doctor (P.W.8) noticed lacerated wounds on
the person of the deceased which indicates that the ocular
evidence runs contrary to the medical evidence. He also
highlighted that since charge was framed under section 302/34
of the I.P.C., the conviction of the appellant under section 302 of
the I.P.C. is illegal and further contended that the prosecution
has not proved the motive behind commission of murder on the
part of the appellant and therefore, it is a fit case where benefit
of doubt should be extended to the appellant.
Mr. Priyabrata Tripathy, learned Additional Standing
Counsel, on the other hand, supported the impugned judgment
and argued that it is not the number of witnesses but quality of
their evidence which is important as there is no requirement
under the law of evidence that any particular number of
witnesses is to be examined to prove/disprove a fact. According
to Mr. Tripathy, the contradictions appearing in the evidence of
the two eye witnesses are insignificant and when their evidence
have not been shaken, non-examination of other witnesses of
the locality cannot be a ground to disbelieve the prosecution
JCRLA No.54 of 2008 Page 13 of 33
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Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
case. He argued that the doctor (P.W.8) conducting post-mortem
examination gave her opinion that the injuries found on the
deceased could be possible by M.O.I and the evidence has
remained unshaken and therefore, it cannot be said that ocular
evidence runs contrary to the medical evidence. He argued that
even though specific evidence has not been adduced that the
weapon seized at the instance of the appellant was kept in
sealed condition, but bereft of C.E. Report, the prosecution case
is clearly established and therefore, the JCRLA should be
dismissed.
Whether the deceased met with a homicidal death?:
Adverting to the contentions raised by the learned
counsel for the respective parties, let us first examine the
evidence available on record as to how far the prosecution has
succeeded in establishing that the deceased met with a homicidal
death.
P.W.8 conducted post mortem examination over the
dead body of the deceased on 07.03.2007 and she noticed the
following external injures:
"(i) Lacerated wound of size 2 1/2" x 1" x 2" over
left occipito temporal region of the scalp 1 " back
to left ear.
JCRLA No.54 of 2008 Page 14 of 33
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Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
(ii) Lacerated wound of size 3" x ½" x 3" present
just below chin extended laterally on the right
side upto middle of the neck which is present
transversely."
On dissection, she found fracture of part of occipital
bone and temporal bone of the skull and below that region, there
was laceration of brain matter, bleeding inside the cranium
cavity present and she opined that the cause of death was due to
shock and hemorrhage as a result injury to the vital organ like
brain, and injury to the large vessel and all the injuries were
opined to be ante mortem in nature and sufficient in ordinary
course of nature to cause death of a person. She further opined
that time since death was 16-24 hours at the time of post
mortem examination and she proved the post mortem report
marked as Ext.11. She also examined the weapon of offence i.e.
axe (M.O.I) on 23.03.2007 which was produced before her by
the police and after examining the same, she opined that the
injuries found in the P.M. report could be possible by M.O.I. The
inquest report (Ext.2) coupled with post mortem report (Ext.11)
and the evidence of the doctor (P.W.8) clearly proves that the
deceased met with a homicidal death. We are of the view that
the learned trial Court has rightly held that from the facts and
circumstances and from the ocular and medical evidence, the
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Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
nature of death of the deceased has been clearly established to
be homicidal.
Seizure of axe (M.O.I) at the instance of the appellant and
finding of human blood stain on it:
Mr. Dash, learned counsel for the appellant
contended that according to P.W.10, the I.O., the axe (M.O.I)
was seized on 07.03.2007 at the instance of the appellant on the
basis of his statement recorded under section 27 of the Evidence
Act from his house under its thatched roof, however there is no
evidence in what condition M.O.I was kept till it was produced
before the doctor (P.W.8) on 23.03.2007 for examination and
opinion. He argued that the doctor (P.W.8) has specifically stated
that when she received the axe, it was wrapped in a paper but it
was not sealed. According to Mr. Dash, since there is absence of
any evidence of the sealing of the seized axe, the chance of
manipulation of the same cannot be ruled out and therefore, no
importance is to be attached to the seizure of M.O.I and finding
of chemical examination report (Ext.18) which indicates that the
axe (M.O.I) was stained with human blood.
P.W.10 though stated about the recovery of the axe
(M.O.I) at the instance of the appellant from his house which
was seized as per seizure list Ext.5/1, but he has not stated
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Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
about the sealing of the seized axe nor there is any evidence
where the seized axe was kept till 23.03.2007 after its seizure on
07.03.2007 when it was produced before P.W.8, the doctor for
giving her opinion regarding possibility of the injuries sustained
by the deceased with such weapon. P.W.8 has specifically stated
that M.O.I was wrapped in a paper but not sealed. P.W.10 has
stated in his cross-examination that after the seizure of axe, he
had wrapped it by paper but he had not obtained the signatures
of the witnesses as well as the appellant on the seized axe so
also over the wrapped paper. P.W.11, the I.O. has stated that on
03.07.2007 he made a prayer before the learned S.D.J.M.,
Sundargarh for sending the seized exhibits to R.F.S.L.,
Sambalpur. The forwarding report of the seized exhibits including
the axe (M.O.I) which was marked as Ext.C is dated 03.07.2007.
The prosecution has not offered any explanation as to why there
was so much of delay in sending M.O.I. for chemical examination
and where, in whose custody and in what condition M.O.I was
kept till it was sent for chemical examination. Though P.W.10
has stated that the axe was kept in the police malkhana vide
malkhana mal item no.10/07 but no malkhana register of the
police station has been proved by the prosecution to show that
the axe (M.O.I) was kept there in safe custody. P.W.10 has
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Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
stated that he had not seized the malkhana register in
connection with the case and further stated that axe like M.O.I is
commonly available in each houses of the village. In view of the
absence of evidence regarding keeping the seized axe (M.O.I) in
sealed condition coupled with inordinate delay in dispatching the
axe for chemical examination, in our humble view, the finding of
chemical analyst regarding availability of human blood stained on
M.O.I cannot be used as an incriminating factor against the
appellant inasmuch as chance of tampering with the same
cannot be ruled out. In the case of Nand Kishore -Vrs.- State
of Haryana reported in 1998 Supreme Court Cases (Cri)
568, the Hon'ble Supreme Court has held as follows:
"3. There is no material on the record to show
that the seized articles were kept in the
malkhana by P.W.1 or P.W.2 for safe custody.
Neither the investigating officer nor P.W.2 has
stated that they had kept the weapon in the
malkhana after properly securing and sealing
the same. Neither the Muharir malkhana was
examined nor even his affidavit filed by the
prosecution to testify to the safe custody of the
recovered weapon. The report of the Armourer
P.W.3 Head Constable Charan Dass, who
examined the pistol and the cartridges on 28-
11-1991, nearly three weeks after the seizure of
the pistol and the cartridges, admitted in his
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Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
cross-examination that when the case-property
was received by him, the same was not in any
sealed parcel and that it was "in loose
condition". Thus, from the evidence on the
record, it cannot be said with any amount of
certainty that the pistol allegedly recovered from
the appellant by the police officials P.W.1 and
P.W.2 and the pistol examined by the Armourer
P.W.3 was the same. Since, the pistol had been
received by the Armourer in a loose condition,
the possibility that the weapon might have been
tampered while in the custody of the police
cannot be ruled out. That being the position, it
would not be safe to uphold the conviction of the
appellant for the offences under section 25 of
the Arms Act read with section 5 of T.A.D.A."
P.W.2 and P.W.5 are the two witnesses to the seizure
of axe (M.O.I). In the chief examination, P.W.2 has stated that
he knew nothing about the document i.e. seizure list Ext.5/1
though he admitted his signature on it which he stated to have
been put on 07.03.2007. He has been declared hostile by the
prosecution and in the cross-examination made by the
Prosecutor, he stated that pursuant to the statement made by
the appellant, he led the police and others to the place of
concealment of tangia and gave recovery of the same from the
thatched roof of back side of his house to police in his presence
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Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
which the police seized as per seizure list Ext.5/1. However in
the cross examination by the defence, P.W.2 has stated that he
saw the axe at the police station for the first time and put his
signature on the seizure list in respect of axe at the police
station. Thus, it is difficult to accept the evidence of P.W.2 as a
witness to the seizure of M.O.I at the instance of the appellant.
P.W.5 only admitted his signature on the seizure list
Ext.5/1, however, he was also declared hostile by the
prosecution and cross-examined and he denied to have stated
before police regarding leading to discovery of M.O.I. at the
instance of the appellant. Thus, the evidence of P.W.5 noway
helps the prosecution to establish that M.O.I was seized at the
instance of the appellant from his house.
In view of the nature of evidence adduced, we accept
the contentions raised by Mr. Dash, learned counsel for the
appellant that recovery of axe at the instance of the appellant so
also the finding of human blood stains on the seized axe cannot
be used against the appellant.
Analysis of evidence of eye witnesses:
P.W.1 and P.W.9 are the two eye witnesses to the
occurrence.
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
P.W.1 has stated that on the relevant day at about
7.30 p.m. in front of his house, he noticed the appellant giving
axe blows on the back side of the head and then on the neck of
the deceased as a result of which the deceased sustained
bleeding injuries. Upon seeing such incident, he raised hulla and
on hearing such hulla, one Raju Munda and Pradeep Naik
appeared at the spot and the appellant along with the co-
accused Abhi Naik fled away from the spot. He further stated
that he rushed to the house of the deceased to inform the
occurrence to the father and elder brother of the deceased.
Though the learned defence counsel has confronted to P.W.1
that he had not stated before police that the appellant dealt
another axe blow on the neck of the deceased which was denied
by P.W.1 but the same has not been proved through the I.O.,
who recorded the statement of P.W.1 during investigation. In
view of section 145 of the Evidence Act, to contradict the
evidence given by a prosecution witness at the trial with a
statement made by him before police during the investigation
would be to draw the attention of the witness to that part of the
contradictory statement which he made before the police and to
question him whether he did in fact made the statement. If the
witness admits, the same can be relied upon by the accused as
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
establishing the contradiction. However, if the witness denies to
have made such statement before the police, then when the
Investigating Officer comes into the witness box, he should be
questioned as to whether the particular statement had been
made to him during the course of investigation by the particular
witness or not and obviously after refreshing his memory from
the case diary, the Investigating Officer may make his answer in
the affirmative or may negative the same. The answer of the
Investigating Officer in affirmative would prove that such a
statement had in fact be made by the witness and would go into
the evidence. Similarly, if it is confronted to a witness that he
had not made a particular statement during investigation before
the Investigating Officer and the witness does not admit the
same, when the Investigating Officer is examined, he can be put
the question by the learned defence counsel with reference to
such contradiction and the Investigating Officer after verifying
the statement recorded by him and refreshing his mind may
answer that a particular witness had not made any such
statement before him. If this procedure is not followed while
cross examining the witness so also the Investigating Officer,
then the evidence before the Court cannot be discarded on the
ground of contradiction. The purpose of drawing the attention to
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
the statement made by the witness before the police or any
other previous statement is to give a reasonable opportunity to
the said witness as to why such contradiction appears. When the
previous statement made by a witness before police is
confronted to him for the purpose of proving the same by one
party, not only the other side but also the trial Court should be
vigilant to verify such statement instantly. In the present case,
since the confrontation made by the learned defence counsel to
P.W.1 relating to his previous statement before police has not
been proved in accordance with law, no importance is to be
attached to such question put by the learned defence counsel.
P.W.1 has further stated in the cross-examination
that he noticed the assault on the deceased by the appellant
from a distance of 10-15 feet. It is correct that the learned
defence counsel has brought on record that houses of other
persons were situated in the vicinity of the spot and when P.W.1
raised hulla, Raju Munda and Pradip Naik arrived at the spot but
none of them have been examined, but as rightly contended by
Mr. Tripathy, learned Addl. Standing Counsel that no fixed
number of witnesses is needed to prove a fact and even the
testimony of a single witness is sufficient to convict an accused if
it is found to be cogent, credible and trustworthy. The evidence
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
is to be weighed and not counted. It is the quality that counts.
Non-examination of some of the witnesses available at the spot
cannot per se lead to the negation of the prosecution case, if the
case is otherwise well proved through other witnesses. Law is
well settled that it is not the quantity of witnesses rather the
quality and veracity of their testimonies that matters in a
criminal trial. This position of law has got legislative recognition
through section 134 of the Evidence Act. While upholding the
above stand of law, the Hon'ble Supreme Court in the case of
Raj Narain Singh -Vrs.- State of Uttar Pradesh and others
reported in (2009) 10 Supreme Court Cases 362 has held
as follows:
"31. The learned counsel appearing for the
accused has strenuously argued and drawn our
attention to the fact that the prosecution has not
examined the other witnesses available on the
spot. However, we are unable to accept the said
contention as it is not necessary that all those
persons who were present at the spot must be
examined by the prosecution in order to prove
the guilt of the accused. Section 134 of the
Evidence Act provides that no particular number
of witnesses is required for proof of any fact. It is
trite law that it is not the number of witnesses
but it is the quality of evidence which is required
to be taken note of by the courts for ascertaining
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
the truth of the allegations made against the
accused."
In the case of Joginder Singh -Vrs.- State of
Haryana reported in (2014) 11 Supreme Court Cases 335,
a Division Bench of the Hon'ble Supreme Court, speaking
through His Lordship Hon'ble Mr. Justice Dipak Misra, has held
that non-examination of the material witnesses is not a
mathematical formula for discarding the weight of the testimony
available on record howsoever natural, trustworthy and
convincing it may be. The charge of withholding a material
witness from the Court leveled against the prosecution should be
examined in the background of the facts and circumstances of
each case so as to find whether the witnesses are available for
being examined in the Court and were yet withheld by the
prosecution.
In the case of Vadivelu Thevar -Vrs.- State of
Madras reported in A.I.R. 1957 S.C. 614, where the Hon'ble
Supreme Court has classified the witnesses into three categories
i.e. i) wholly reliable, ii) wholly unreliable and iii) neither wholly
reliable nor wholly unreliable, it has been held that so far as the
first category of proof, the Court should have no difficulty in
coming to the conclusion to convict on the testimony of a single
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
witness, if it is found to be above reproach and suspicion of
interestedness, incompetence or subornation and in the second
category, the Court can equally discard such evidence and so far
as third category of cases, the Court has to be circumspect and
has to look for corroboration in material particular by reliable
testimony, direct and circumstantial. We find no such
discrepancy in the evidence of P.W.1 to disbelieve him.
P.W.9 is another eye witness to the occurrence who
stated that he along with the deceased as well as the appellant
went to work in the under construction house of P.W.5. He
further stated that at about 5.00 p.m. on the date of occurrence,
they proceeded to the old house of P.W.5 to collect their wages
but when P.W.5 refused to pay them their remuneration, he
along with both the deceased as well as the appellant went
towards Talapada (down the lane) of their village. He has also
stated that while returning back to the house of P.W.5, on the
way, the deceased saw P.W.7 and asked her to provide him
some khaini and as P.W.7 refused to give the same, a quarrel
ensued between the appellant and the deceased. Seeing such
quarrel, P.W.9 went to the house of P.W.5 for receiving his
payment and when he returned back to the spot, he did not
notice the appellant there. He further stated that while he along
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
with the deceased were talking near the electric pole, at about
7.30 p.m., the appellant came towards them holding an axe and
dealt blows to the back sides of the head and the neck of the
deceased as a result of which he fell down on the ground with
profuse bleeding. Being terrified by such incident, P.W.9 fled
away from the spot. In the cross-examination, P.W.9 has
specifically stated that he had not noticed any other person in
and around the spot, but merely because P.W.9 has not stated
about the presence of P.W.1, the same cannot be a ground to
disbelieve the presence of P.W.1. The occurrence has taken place
in the evening hours at about 7.30 p.m. and the witness to the
occurrence might have focused on the assault part and not
exactly noticed who were the other persons present near the
vicinity and watching the occurrence, but the same cannot be a
ground to disbelieve his testimony. It is correct that P.W.9 has
stated that the appellant assaulted the deceased by sharp side of
the axe to his head and neck and the doctor (P.W.8) has noticed
one lacerated wound on the scalp so also another lacerated
wound on the neck but when she verified the weapon of offence
(M.O.I), she specifically opined that injuries found in her P.M.
report could be possible by M.O.I. In the cross-examination,
P.W.8 has clarified that incised wound could be possible by the
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
sharp side of an axe and lacerated wound could not be possible
by the sharp side of the axe, but it is possible by the blunt side
of an axe. She specifically stated that the injuries which she
found over the dead body of the deceased, could not be possible
by one fall against a rocky surface or blunt object. She denied
the suggestion given by the learned defence counsel that she did
not examine the axe (M.O.I). Therefore, the contention of the
learned counsel for the appellant that the ocular testimony of
P.W.9 is contradicted by the medical evidence is not acceptable.
Whether the learned trial Court was justified in convicting
the appellant under section 302 of the I.P.C. though he
was charged under section 302/34 of the I.P.C.:
In the case of Kishore Chand -Vrs.- State of
Himachal Pradesh reported in (1991) 1 Supreme Court
Cases 286, the Hon'ble Supreme Court has held that if from the
evidence the Court comes to a conclusion that any one of the
accused has committed the crime individually, even though other
accused persons were acquitted, he can be held guilty under
section 302 of the I.P.C. simplicitor and such conviction cannot
be assailed only because no independent charge was framed
against the accused under section 302 of the I.P.C. While
elucidating the above position of law, it was held as follows:
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
"10. No doubt the appellant and two others have
been charged for an offence under section 302
and 201 read with section 34, namely, common
intention to commit the offences and A-2 and A-
3 were acquitted of the charge under section
302/34 I.P.C. and that there is no independent
charge under section 302 I.P.C. If, from the
evidence, it is established that any one of the
accused has committed the crime individually,
though the other accused were acquitted, even
without any independent charge under section
302, the individual accused would be convicted
under section 302 I.P.C. simplicitor. The
omission to frame an independent charge under
section 302 I.P.C. does not vitiate the conviction
and sentence under section 302 I.P.C."
In view of the settled position of law, since appellant
has committed the crime individually as deposed to by the two
eye witnesses, there is no infirmity in the impugned judgment in
convicting the appellant under section 302 of I.P.C. even though
he was charged under section 302/34 of I.P.C. and the appellant
cannot be said to be prejudiced in any manner.
Absence of motive:
It is no more res integra that in a case of direct
evidence, motive plays a minimal role and when guilt of the
accused person is well proved by means of direct evidence, the
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
Courts should not be reluctant to record conviction only because
sufficient motive cannot be proved by the prosecution. In the
case of Darbara Singh -Vrs.- State of Punjab reported in
(2012) 10 Supreme Court Cases 476, it is held as follows:
"15.....In a case where there is direct evidence
of witnesses which can be relied upon, the
absence of motive cannot be a ground to reject
the case. Under no circumstance, can motive
take the place of direct evidence available as
proof......
16. Motive in criminal cases based solely on the
positive, clear, cogent and reliable ocular
testimony of witnesses is not at all relevant. In
such a fact situation, the mere absence of a
strong motive to commit the crime, cannot be of
any assistance to the accused...."
The evidence has come on record through P.W.9 that
while the deceased saw the aunt of the appellant, namely, Jama,
he asked her to provide khaini and at this, a quarrel ensued
between the appellant and the deceased. In the cross-
examination, P.W.9 has stated that he could not say the reason
for which the quarrel ensued between the appellant and the
deceased before the occurrence, but he heard that the appellant
and the deceased were engaged themselves in a quarrel and
thereafter, the appellant took his aunt Jama to his house.
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Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
In the case of Yogesh Singh -Vrs.- Mahabeer
Singh & Ors reported in (2017) 11 Supreme Court Cases
195, while reiterating the above stance of law, the Hon'ble
Supreme Court held as follows:
"46.......It is a settled legal proposition that even
if the absence of motive, as alleged, is accepted
that is of no consequence and pales into
insignificance when direct evidence establishes
the crime. Therefore, in case there is direct
trustworthy evidence of witnesses as to
commission of an offence, motive loses its
significance. Therefore, if the genesis of the
motive of the occurrence is not proved, the
ocular testimony of the witnesses as to the
occurrence could not be discarded only on the
ground of absence of motive, if otherwise the
evidence is worthy of reliance. [Hari Shankar
Vs. State of U.P. : (1996) 9 SCC 40; Bikau
Pandey & Ors. Vs. State of Bihar : (2003)
12 SCC 616; State of U.P. Vs. Kishanpal &
Ors. : (2008) 16 SCC 73; Abu Thakir & Ors.
Vs. State of Tamil Nadu : (2010) 5 SCC 91
and Bipin Kumar Mondal Vs. State of West
Bengal : (2010) 12 SCC 91]."
Conclusion:
In view of the foregoing discussions, we find that the
evidence of the two eye witnesses i.e. P.W.1 and P.W.9
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corroborated each other and we find no infirmity in the same.
Their evidence relating to the assault made by the appellant on
the deceased is also getting support from the medical evidence
adduced by P.W.8. The spot is not disputed in view of sufficient
material available on record regarding the finding of the dead
body with injuries on the head and neck with profused bleeding
in front of house of P.W.1, the seizure of blood stained earth
from the spot and moreover the inquest was held over the dead
body at the spot on 07.03.2007 and inquest report was
prepared. The appellant has miserably failed to dislodge the
incriminating evidence appearing against him in the prosecution
case and hence, we are of the opinion that his conviction and
sentence through the impugned judgment and order does not
require any interference by us and resultantly, we find no merit
in the appeal which for the said reason is dismissed with the
affirmation of appellant's conviction and sentence. The appellant
has been directed to be released on bail by the order of this
Court dated 20.11.2018 in Misc. Case No.21 of 2018. The
appellant shall surrender within a period of four weeks from
today to undergo the sentence, failing which, he shall be taken
into custody.
JCRLA No.54 of 2008 Page 32 of 33
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Signed by: SIPUN BEHERA
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jan-2024 17:25:59
Accordingly, the JCRLA is dismissed. Trial Court
records with a copy of this judgment be sent down to the
concerned Court forthwith for information.
Before parting with the judgment, we put on record
our appreciation to Mr. Jiban Ranjan Dash, learned counsel for
the appellant for rendering his assistance in arriving at the above
decision. We also appreciate Mr. Priyabrata Tripathy, learned
Additional Standing Counsel for ably and meticulously presenting
the case on behalf of the State.
.................................
S.K. Sahoo, J.
C.R. Dash,J. I agree.
....................................
Chittaranjan Dash, J.
Orissa High Court, Cuttack
The 2nd January 2024/Pravakar/Sipun
