Orissa High Court
Pasupati Bera vs State Of Odisha on 19 November, 2024
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.83 of 2010
An appeal from the judgment and order dated 28.07.2010
passed by the Addl. Sessions Judge, Rairangpur in C.T. No.34 of
2007 for offence under section 302 of the I.P.C.
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Pasupati Bera ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Purna Chandra Behera
Advocate
For Respondent: - Mr. Sarat Pradhan
Addl. Standing Counsel
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P R E S E N T:
THE HON'BLE MR. JUSTICE S.K. SAHOO
AND
THE HON' MR. JUSTICE CHITTARANJAN DASH
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Date of Hearing and Judgment: 19.11.2024
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By the Bench: The appellant Pasupati Bera along with co-accused
Surukuna Bera faced trial in the Court of the learned Additional
Sessions Judge, Rairangpur in C.T. No.34 of 2007 for offences
punishable under sections 302/120-B/34 of the Indian Penal
JCRLA No.83 of 2010 Page 1 of 39
Code (in short 'I.P.C.') on the accusation that on 01/02.03.2007
at about 12.30 midnight at village Satasol under Bisoi Police
Station in the district of Mayurbhanj, they, in furtherance of their
common intention, committed murder of three persons, namely,
Anjan Behera, Niranjan Behera and Jhapal Bera by giving blows
by means of crowbar and hammer etc. and that they entered
into criminal conspiracy for committing such murder.
The learned trial Court, vide the impugned judgment
and order dated 28.07.2010, though acquitted the co-accused
Surukuna Bera of all the charges, so also the appellant Pasupati
Bera of the charge under section 120-B of the I.P.C., but found
the appellant Pasupati Bera guilty under section 302 of the I.P.C.
and sentenced him to undergo imprisonment for life and to pay a
fine of Rs.20,000/- (rupees twenty thousand), in default of
payment of fine, to undergo R.I. for one year more.
Prosecution Case:
2. The prosecution case, as per the F.I.R. lodged by one
Smt. Kalasini Behera (P.W.1) on 02.03.2007 before P.W.16
Dhaneswar Sahoo, the I.I.C., Bisoi P.S., in short, is that on
01.03.2007 during midnight while she was sleeping, she heard
some noise of opening of door, for which she woke up and found
that the appellant Pasupati Bera, who is her son-in-law, was
JCRLA No.83 of 2010 Page 2 of 39
standing there holding a crowbar. Seeing her (P.W.1), the
appellant threw away the crowbar in the courtyard and ran away
hurriedly. The husband of P.W.1, namely, Bimbadhar Behera
(P.W.2) had also seen the appellant running away from there.
Seeing such incident, P.Ws.1 and 2 shouted and on suspicion
when they entered inside the house, both of them found that
their two sons, namely, Anjan Bera and Niranjan Bera were lying
in a bleeding condition so also their nephew Jhapal Bera lying
dead. Hearing the shout of P.Ws.1 and 2, the neighbours came
to the spot and all of them were shocked to see the bodies lying
in profuse bleeding condition. With a ray of hope that the two
sons of P.Ws.1 and 2 might be surviving, they were immediately
shifted to the nearby Bisoi Hospital in a vehicle, but the doctor
declared both of them to be dead, for which the dead bodies
were brought back to the village. It is further stated in the F.I.R.
that the appellant had married to the daughter of P.Ws.1 and 2,
namely, Bandita @ Puspanjali Behera (P.W.9) since two & half
years prior to the date of occurrence and they were blessed with
a son about one and half years back. On 19.02.2007 there was a
marriage function of the son of the elder brother of P.W.1 and
the appellant attended the marriage and returned to his village
Saragachhida on 21.02.2007. During his stay in the village of his
JCRLA No.83 of 2010 Page 3 of 39
in-laws, the appellant was telling before others that he is having
a share in the properties of his in-laws' family. It is further stated
that on some previous occasions also, the appellant was
subjecting his wife (P.W.9) to physical torture by demanding a
share in the in-laws' family properties and the informant (P.W.1)
suspected that relating to such demand of share in the property
and being misguided by the co-accused Surukuna Bera, the
appellant had committed murder of the three deceased persons.
On the basis of such written report, P.W.16, the
I.I.C., Bisoi police station registered Bisoi P.S. Case No.19 dated
02.03.2007 under section 302 of I.P.C. and took up investigation
of the case. During the course of investigation, P.W.16 examined
the informant (P.W.1) and other witnesses, visited the spot and
prepared a spot map (Ext.13) and also seized one crowbar in
presence of the witnesses and prepared seizure list vide Ext.7,
held inquest over the dead bodies and prepared the inquest
reports vide Exts.1, 2 & 3. Thereafter the I.O. dispatched the
dead bodies to the S.D.H., Rairangpur for post-mortem
examination. He also seized the sample earth, blood stained
earth from the spot and prepared seizure list vide Ext.8. He
arrested the appellant and seized his wearing apparels as per the
seizure list Ext.14. He also seized the wearing apparels of the
JCRLA No.83 of 2010 Page 4 of 39
deceased persons and sample blood of the appellant so also his
nail clippings and prepared seizure list marked as Ext.15. On the
very day, i.e. on 02.03.2007, he handed over the charge of
investigation of the case to P.W.17 Sridhar Mohanta, the Circle
Inspector of Police, who also visited the spot and re-examined
the witnesses. The appellant while in police custody, confessed
his guilt and his statement was recorded under section 27 of the
Evidence Act. In pursuance of such statement, one hammer was
recovered from the well situated in front of the house of the
informant at the instance of the appellant as per the seizure list
Ext.7. The appellant was forwarded to the Court and afterwards
the co-accused Surukuna Bera was also arrested and he was also
forwarded to Court. The I.O. (P.W.17) received the post-mortem
report and he made a query to the S.D.M.O. as to whether the
injuries on the body of the deceased could be possible by the
hammer (M.O.I) and he received the query report in which the
doctor answered in affirmative. He made a prayer to the Court to
send the incriminating materials to the R.F.S.L., Balasore for
chemical examination and accordingly, the same were sent to
R.F.S.L. and the chemical examination report (Ext.17) was
obtained. On completion of the investigation, the charge sheet
was submitted against the appellant so also the co-accused
JCRLA No.83 of 2010 Page 5 of 39
Surukuna Bera for the offences punishable under sections
302/120-B/34 of I.P.C.
Framing of Charges:
3. After submission of charge sheet, the case was
committed to the Court of Session, where the learned trial Court
framed charges against the appellant and the co-accused as
aforesaid. The appellant and the co-accused pleaded not guilty
and claimed to be tried and accordingly, the sessions trial
procedure was resorted to establish their guilt.
Prosecution Witnesses, Exhibits & Material Objects:
4. In order to prove its case, the prosecution examined
as many as seventeen witnesses.
P.W.1 Kalasini Behera is the mother-in-law of the
appellant and mother of the deceased Niranjan and Anjan and
aunt of deceased Jhapal and she is also the informant in this
case. She stated that on the night of occurrence, she along with
her husband (P.W.2) was sleeping in one room and in another
room, the deceased persons were sleeping. She further stated
that the appellant and her daughter (P.W.9) were sleeping in the
3rd room, the entrance of which opened to the room in which the
deceased persons were sleeping. She stated that at about
JCRLA No.83 of 2010 Page 6 of 39
midnight, she heard some sound for which she woke up and also
awakened her husband (P.W.2) and when they came out, they
saw the appellant standing by holding a crowbar and when they
called him, he ran away from the spot. On suspicion, they went
to the room where the deceased persons were sleeping and they
found the deceased Jhapal to be dead and their two sons were
bleeding profusely. She also stated that since one year prior to
the occurrence, the appellant was insisting his wife (P.W.9) to
persuade P.W.2 to record the properties in his name.
P.W.2 Bimbadhar Behera is the father of the
deceased Niranjan and Anjan and uncle of the deceased Jhapal
and father-in-law of the appellant. He stated that on the night of
occurrence, he was sleeping with P.W.1 in a room and the
deceased persons were sleeping in another room. Hearing a
sound when he along with P.W.1 rushed to outside, they found
the appellant was fleeing from the spot throwing a crowbar. He
further stated that when he enquired, the appellant replied that
he was going outside and ran away. He stated that the door of
the room where the deceased persons were sleeping was found
open and when he entered into the room, he found the deceased
persons seriously injured with profuse bleeding. He also stated
JCRLA No.83 of 2010 Page 7 of 39
that since one year prior to the occurrence, the appellant was
demanding to get his (P.W.2) properties transferred in his name.
P.W.3 Bansidhar Behera is the uncle of the deceased
persons who stated that while he was asleep in the night of
occurrence, he heard a shout and accordingly, came to the house
of the informant and found the deceased persons bleeding
profusely. He also stated that during this time, the appellant was
not present in the house.
P.W.4 Pravakar Behera is neighbour of the informant
who stated that in the night of occurrence, he heard some
shouting for which he came to the spot and found the deceased
persons in a pool of blood, who had sustained severe injuries on
their heads. He also stated that the appellant was found missing
from the house after the occurrence. He is a witness to the
preparation of inquest reports vide Exts.1, 2 and 3 and to the
seizure of a crowbar as per seizure list Ext.4.
P.W.5 Ranga Behera stated that after hearing some
shout, he came to the spot and found the deceased persons lying
in a pool of blood and having severe injuries on their heads. He
also stated that the appellant was found missing from the spot
after the incident.
JCRLA No.83 of 2010 Page 8 of 39
P.W.6 Ashok Behera stated that hearing some shout
from the house of the informant, he rushed to the spot and
found the deceased Jhapal lying dead having bleeding injuries on
his head and the other two deceased persons were slightly
gasping having bleeding injuries on their heads. He also stated
that the appellant was absent from the house of the informant
after the occurrence.
P.W.7 Dhuna Behera stated that after hearing some
shout, he came to the spot and found the deceased persons were
lying having profuse bleeding injuries on their heads. He also
stated that the appellant was found missing from the spot after
the occurrence.
P.W.8 Lalbahadur Sastri Mandal is the scribe of the
F.I.R. who stated that after hearing the shout, he came to the
house of the informant and found the deceased persons lying
with profuse bleeding injuries. He further stated that the
appellant was found missing from the spot after the occurrence
and he was arrested subsequently. He also stated that appellant
confessed to have committed the crime while he was under the
police custody and also led the police team to the well where the
weapon of offence i.e. hammer was concealed and it was
recovered and seized as per seizure list Ext.7.
JCRLA No.83 of 2010 Page 9 of 39
P.W.9 Bandita @ Puspanjali Behera is the wife of the
appellant and the sister of the deceased persons and she is the
eye witness to the occurrence and she stated that on the night of
occurrence, she woke up by hearing some sound and found the
appellant inflicting blows on the deceased persons by means of a
hammer. She further stated that upon seeing her, the appellant
rushed towards her with wide open eyes holding the hammer for
which she slept on the bed out of fear and when she woke up
again, she did not find the appellant in the house. She also
stated that the appellant committed the murders of the deceased
persons with an expectation that he would get the properties of
P.W.2.
P.W.10 Sunaram Hembram stated that on being
informed that the deceased persons have been attacked and
injured by the appellant, he proceeded to the house of the
informant where he found the deceased persons in a profusely
bleeding condition. He further stated that on the next day of
incident, he found the appellant near Kasipenth jungle and
informed the police and accordingly, the appellant was arrested.
He also stated that while under police custody, the appellant
confessed to have killed the deceased persons and also led the
police team to the well in which the weapon of offence was
JCRLA No.83 of 2010 Page 10 of 39
concealed and accordingly, the hammer (M.O.I) was recovered
and seized.
P.W.11 Biswaranjan Behera stated that at about
midnight of the date of occurrence, he heard some shout and
came to the spot of occurrence where he found the deceased
Jhapal dead and other two deceased persons in an injured
condition having profuse bleeding. He further stated that though
the appellant was staying in the house of the informant, but he
was found missing after the incident.
P.W.12 Gurucharan Bindhani is a witness to the
seizure of blood stained earth and sample earth from the spot as
per seizure list Ext.8.
P.W.13 Dr. Pradeep Kumar Mohapatra was working
as a Specialist in the S.D.H., Rairangpur who, on police
requisition, conducted post mortem examination over the dead
body of the deceased Niranjan Behera and proved his report vide
Ext.9.
P.W.14 Dr. Ram Chandra Hembram was posted as
the Assistant Surgeon in the S.D.H., Rairangpur who, on police
requisition, conducted post mortem examination over the dead
body of the deceased Anjan Behera and proved his report vide
Ext.11.
JCRLA No.83 of 2010 Page 11 of 39
P.W.15 Dr. Sudhir Charan Mallik was working as an O
& G Specialist, S.D.H., Rairangpur who, on police requisition,
conducted post mortem examination over the dead body of the
deceased Jhapal Bera and proved his report vide Ext.12.
P.W.16 Dhaneswar Sahu was working as the
Inspector-in-Charge of Bisoi police station, who is the initial
Investigating Officer of this case. After conducting some
investigation, he handed over the charge to P.W.17.
P.W.17 Sridhar Mohanta was working as the Circle
Inspector of Police in Rairangpur police station and he took over
the charge of investigation from P.W.16 on 02.03.2007 and on
completion of investigation, he submitted the charge sheet.
The prosecution proved seventeen numbers of
documents. Exts.1, 2 & 3 are the inquest reports, Exts.4, 7, 8,
14 & 15 are the seizure lists, Ext.5 is the F.I.R., Ext.6 is the
confessional statement of the appellant, Exts.9, 11 & 12 are the
post mortem reports, Ext.10 is the query report, Ext.16 is the
forwarding letter and Ext.17 is the chemical examination report.
The prosecution also produced two numbers of
material objects. M.O.I is the hammer and M.O.II is the crowbar.
JCRLA No.83 of 2010 Page 12 of 39
Defence Plea:
5. The defence plea of the appellant is one of complete
denial. The co-accused Surukuna Bera examined himself as a
defence witness and stated that the appellant suffered from
mental disorder in the year 2003 and he again suffered mental
ailment in the year 2006 and he did not recover from such
disorder till the date of occurrence. He further stated that the
appellant was treated at Ranchi for such ailment and he was
present when the doctor scribed the prescription and he had also
purchased medicines for the appellant. He further stated to have
filed the report regarding the E.G. of the appellant.
Findings of the Trial Court:
6. The learned trial Court, after assessing the oral as
well as documentary evidence on record, found the evidence of
eye witness P.W.9 as acceptable, which got corroboration from
the evidence of P.Ws.1 and 2 so also from the medical evidence.
However, the learned trial Court did not find any cogent evidence
against the co-accused Surukuna Bera and therefore, while
acquitting the said co-accused of all the charges and also the
appellant of the charge under section 120-B of I.P.C., found the
appellant guilty under section 302 of the I.P.C.
JCRLA No.83 of 2010 Page 13 of 39
Contentions of Parties:
7. Mr. Purna Chandra Behera, learned counsel
appearing on behalf of the appellant argued that the case is
mainly based on the sole testimony of the eye witness P.W.9,
who is none else than the wife of the appellant, but, her name
does not find place in the F.I.R. as an eye witness to the
occurrence. He further submitted that P.W.9 has stated that she
was examined by the police about eight to ten days after the
occurrence. Therefore, there was every possibility that P.W.9 had
got no idea as to how the occurrence took place and she had
been set up as an eye witness to the occurrence at a subsequent
stage and therefore, it would not be proper to place implicit
reliance on her testimony to convict the appellant. The learned
counsel further argued that, even though the wearing apparels of
the appellant like 'ganji' and 'lungi' were seized and the same
were sent for chemical examination, but no blood stain was
found on it as per the chemical examination report. He further
submitted that one defence witness, who is none else than the
co-accused Surukuna Bera, the younger brother of the appellant,
has been examined as D.W.1, who has stated that the appellant
was suffering from mental disorder since 2003 and again he
suffered from mental ailments in 2006 and therefore, even if the
JCRLA No.83 of 2010 Page 14 of 39
appellant is stated to have committed the offence, in view of his
unsoundness of mind, he is to be protected under section 84 of
the I.P.C. and therefore, it is a fit case where benefit of doubt
should be extended in favour of the appellant.
Mr. Sarat Pradhan, learned Addl. Standing Counsel,
on the other hand, supported the impugned judgment and
submitted that merely because the name of the eye-witness
P.W.9 is not mentioned in the F.I.R., which was lodged by her
mother (P.W.1) soon after the occurrence, keeping in view her
mental state, since she had lost her two sons and a nephew, it
was not expected from her that she would be cool and composed
and give all the details of the occurrence including the fact that
P.W.9 is an eye witness to the occurrence. Therefore, when the
evidence of P.W.9 has not been otherwise shaken and there was
no reason for her to depose falsehood against her husband (the
appellant), the learned trial Court has rightly placed reliance on
her evidence. Moreover, the evidence of P.W.9 is getting
corroboration from her parents, i.e. P.Ws.1 and 2 as they have
stated about the presence of the appellant with a crowbar when
they woke up hearing some sounds and found the appellant was
running away from the spot throwing the crowbar. Learned
counsel for the State further submitted that the three doctors,
JCRLA No.83 of 2010 Page 15 of 39
i.e. P.Ws.13, 14 and 15 who conducted post-mortem
examination over the dead bodies of Niranjan Behera, Anjan
Behera and Jhapal Bera have also stated that the deceased
persons died of homicidal death and the weapon of offence i.e.
hammer (M.O.I) was examined by each of them and they opined
that the injuries sustained by the respective deceased persons
were possible by such hammer. The learned counsel further
argued that the hammer was also sent for chemical examination
and the C.E. report indicates that human blood was noticed on
the said hammer. Learned counsel for the State further argued
that the hammer was recovered at the instance of the appellant
from a hidden position inside the well, which has been duly
proved by the witnesses including the investigating officer. It is
argued that, even though D.W.1 has stated that the appellant
was suffering from mental disorder, but no medical document(s)
has been proved in that respect. Moreover, neither P.W.9, the
wife of the appellant nor P.Ws.1 and 2 have stated that the
appellant was suffering from unsoundness of mind and therefore,
the plea of insanity is not available to the appellant and the
learned trial Court is quite justified in convicting the appellant
under section 302 of the I.P.C. and sentencing him to suffer life
imprisonment.
JCRLA No.83 of 2010 Page 16 of 39
Whether the deceased persons died a homicidal death?:
8. Before adverting to the contentions raised by the
learned counsel for the respective parties, let us first discuss
whether the prosecution has successfully proved that the three
deceased persons, namely, Niranjan Behera, Anjan Behera and
Jhapal Bera have met with homicidal death or not.
Deceased Niranjan Behera:
So far as the deceased Niranjan Behera is concerned,
the post mortem examination over his dead body was conducted
by P.W.13 on 02.03.2007 at S.D.H., Rairangpur and he noticed
the following injuries:-
1. Lacerated wound over mid and lower part of
forehead of size 2" x ¾" x brain deep with
crushed fracture of underline frontal bone.
2. Lacerated wound at outer canthus of left
eye of size 2" x ¾" x brain deep with
fracture of underline bone.
3. Lacerated crushed wound over lower part of
nose and upper line disfiguring the nose
with fracture of underline maxilla and
distorting of normal denture.
4. Both eye balls found ruptured irregularly
and collapsed oozing of jelly fluid and liquid
blood on pressure. There was also oozing of
JCRLA No.83 of 2010 Page 17 of 39
liquid blood with liquid brain matter from
injury No.1 and 2 on pressure.
The doctor opined that the injuries were ante-mortem
in nature and might have been caused by heavy thrust by hard
and blunt weapon/object. On dissection, portion of brain, below
injury Nos.1 and 2, i.e. frontal lobe was found to be totally
smashed and mixed with clotted blood. There were multiple
fractures of skull bone, mainly frontal, maxilla and nasal bone,
which were irregularly broken into pieces. Other internal organs
were found intact, but pale.
The doctor opined that the death was due to injury to
vital organ, i.e. brain, haemorrhage and shock. The doctor
proved the post mortem examination report, which is marked as
Ext.9. The I.O. made a query to him regarding possibility of the
injuries sustained by the deceased with the hammer, which was
produced before him and on examining the same, the doctor
opined in affirmative and he has proved the query report which is
marked as Ext.10.
The evidence of this doctor (P.W.13) has remained
unchallenged and not a single question has been put to him in
the cross-examination.
JCRLA No.83 of 2010 Page 18 of 39
Deceased Anjan Behera:
The post-mortem examination of the body of the
deceased Anjan Behera was conducted by P.W.14 on
02.03.2007, who noticed the following injuries:-
1. Bleeding lacerated wound of 4 cm x 1 cm x
skin deep on the right side of forehead.
2. Bleeding lacerated wound of 4 cm x 1 cm x
skin deep in preauricular region (right side).
3. There was a depression area extending
from right parietal region to right zygomatic
process and mid forehead to right ear.
The doctor opined that all the injuries were ante-
mortem in nature and the death was due to head injuries and
haemorrhagic shock. On dissection, there was fracture of right
parietal bone, right side of frontal bone, right orbital fossa and
right zygomatic process with injury to the brain matter deep to
the fractured skull bones. Chest wall was intact, heart was intact,
both the chambers were empty of blood. Both the lungs were
intact and pale. Spleen, liver and both the kidneys were intact
and pale. The doctor proved the post mortem examination
report, which is marked as Ext.11.
The I.O. made a query to P.W.14 regarding possibility
of the injuries sustained by the deceased with the hammer,
JCRLA No.83 of 2010 Page 19 of 39
which was produced before him and on examining the same, the
doctor opined in affirmative and he has proved the query report
which is marked as Ext.10. Nothing has been brought out in the
cross-examination to disbelieve the evidence of P.W.14.
Deceased Jhapal Bera:
The post mortem examination over the body of the
deceased Jhapal Bera was conducted by P.W.15 on 02.03.2007
at S.D.H., Rairangpur and he noticed the following injuries:-
"Lacerated wound on the left side of forehead 2"
above the left superciliary arch of size 1½" x ½"
x skin deep with depressed fracture of underline
frontal bone. The upper margin of the wound
and the fracture was semi-circular."
On dissection, the doctor found one depressed
fracture of the left half of frontal bone of size 2½" x 1½" x bone
deep with laceration of the underline meninges frontal lobe of
brain and associated with intracranial haemorrhage and
hematoma. Brain and meninges congested.
The doctor opined that the cause of death was due to
coma as a result of injury to vital organs like brain due to the
head injury. All the injuries were opined to be ante-mortem in
nature. The doctor proved the post mortem examination report,
which is marked as Ext.12.
JCRLA No.83 of 2010 Page 20 of 39
The I.O. made a query to P.W.15 regarding possibility
of the injuries sustained by the deceased with the hammer and
crowbar, marked as M.O. I and M.O. II which were produced
before him and on examining the same, the doctor opined in
affirmative and he has proved the query report which is marked
as Ext.10. Nothing has been brought out in the cross-
examination to disbelieve the evidence of P.W.15.
In view of the evidence of three doctors coupled with
the findings arrived at in the respective post mortem
examination reports, the inquest reports and the evidence of
P.Ws.1, 2 and 9, we are of the view that the prosecution has
successfully established that the three deceased persons met
with homicidal deaths.
Whether the eye witness account of P.W.9 is reliable and
trustworthy?:
9. Coming to the evidence of the sole eye witness to the
occurrence i.e. P.W.9, who is none else than the wife of the
appellant, she has stated that on the date of occurrence, she was
sleeping in one room with the appellant and their child and the
three deceased persons were sleeping in the next room which
was connected by a door and at about midnight 1.00 a.m., she
heard some sound and got up and found that the appellant was
JCRLA No.83 of 2010 Page 21 of 39
inflicting blows by a hammer on the deceased Anjan, Niranjan
and Jhapal. When she saw the appellant, he rushed towards her
with wide eyes holding the hammer, for which out of fear, she
again laid down on the bed and thereafter when she got up, she
found the three deceased were lying in bleeding condition and
the appellant was not there. She further stated that the
appellant committed the murder to get the properties of her
father (P.W.2) on the ill advice of the co-accused Surukuna Bera.
In the cross-examination, she has admitted that the appellant
was her second husband and that her parents (P.W.1 and P.W.2)
came to the spot of occurrence and many villagers had also
gathered there. She further deposed that she told about the
incident to her parents after three to four days and to the police
about eight to ten days of the occurrence. She further stated
that there was electric light in the house and the rooms in which
she was sleeping and in which the three deceased persons were
sleeping was also lighted by electricity. She further stated that
the police arrested the appellant on the next day of the
occurrence and she disclosed to the villagers after telling the
same to her parents.
Learned counsel for the appellant argued that, since
the name of P.W.9 does not find place in the F.I.R. and she did
JCRLA No.83 of 2010 Page 22 of 39
not disclose about the incident immediately before her parents
and according to her, she disclosed about the occurrence about
eight to ten days after, it cannot be said that she is a truthful
witness as there is every possibility that she had been set up as
an eye witness to the occurrence afterwards.
We are not able to accept such contention raised by
the learned counsel for the appellant. We find from the case
record that the statement of P.W.9 was recorded on 02.03.2007,
i.e. on the date of lodging of F.I.R. and moreover, missing of the
name of P.W.9 in the F.I.R. cannot be a factor to disbelieve her
evidence. It cannot be lost sight of the fact that P.W.1 had lost
two of her sons and also her nephew few hours back when she
lodged the F.I.R. and she must be in a perturbed state of mind,
anxiety and depression and therefore, at that time, it was not
expected from her to give all the details of the occurrence
including the names of eye-witness to the occurrence in the
F.I.R. In the case of Dhirajbhai Gorakhbhai Nayak -Vrs.-
State of Gujarat reported in (2003) 9 Supreme Court
Cases 322, the Hon'ble Supreme Court has observed as
follows:-
"7. Coming to the plea that the name of P.W.3
does not appear in the first information report, it
JCRLA No.83 of 2010 Page 23 of 39
has to be noted that death took place, according
to medical records, at about 4.45 a.m. and the
first information report was lodged at about 5.15
a.m. In other words, the first information report
was lodged almost immediately after the
occurrence. As observed by this Court in Shri
Bhagwan v. State of Rajasthan [(2001) 6
SCC 296: 2001 SCC (Cri) 1095], the mental
condition of the person who has just seen a
close relative, the bread earner lose his life
cannot be lost sight of. The psychic trauma
cannot be ignored. Merely because P.W.3's
name did not figure in the first information
report, that is not a suspicious circumstance.
Evidence of P.Ws. 1 and 3 has been analysed by
both the trial Court and the High Court minutely
and found to be credible and cogent. Nothing
infirm therein could be shown to weaken their
acceptability and reliability. The trial court and
the High Court were justified in placing reliance
thereon."
Therefore, mere omission of the name of P.W.9 in
the F.I.R., in our considered view, is not a ground to disbelieve
her evidence as an eye witness to the occurrence. Her evidence
has also not been shaken at all in the cross-examination and
moreover, she being the wife of the appellant is not likely to tell
falsehood against the appellant which has the potential to
JCRLA No.83 of 2010 Page 24 of 39
entangle him for commission of offence of murder. In a catena of
cases, the Hon'ble Supreme Court has reiterated that a near
relative is hardly ever expected to falsely implicate and let the
real culprit go scot-free. In the case of Dalip Singh -Vrs.- State
of Punjab reported in (1953) 2 Supreme Court Cases 36, it
has been held as follows:-
"24. A witness is normally to be considered
independent unless he or she springs from
sources which are likely to be tainted and that
usually means unless the witness has cause,
such as enmity against the accused, to wish to
implicate him falsely. Ordinarily, a close relative
would be the last to screen the real culprit and
falsely implicate an innocent person. It is true,
when feelings run high and there is personal
cause for enmity, that there is a tendency to
drag in an innocent person against whom a
witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and
the mere fact of relationship far from being a
foundation is often a sure guarantee of truth."
In the instant case, it is absurd to argue that P.W.9
would falsely implicate the appellant, who is none else than her
husband. Though it is an admitted fact that P.W.9 had lost her
two brothers and one cousin, but that in itself is not a sufficient
reason to suspect that she would falsely entangle her husband in
JCRLA No.83 of 2010 Page 25 of 39
such a grave case without any rhyme or reason. As stated by
P.W.9, there was electricity in the room where the three
deceased were sleeping and moreover, when she got up hearing
the sound and found her husband inflicting blows with the
hammer to the three deceased persons, the appellant rushed
towards her wide eyes holding the hammer and therefore, there
would not have been any difficulty on the part of P.W.9 to
identify her husband (the appellant) as the culprit. The evidence
of P.W.9 is getting corroboration from the evidence of P.W.1 and
P.W.2.
P.W.1 is the mother-in-law of the appellant and she
has stated that on the night of occurrence, she was sleeping with
her husband (P.W.2) in one room and in another room her two
sons, namely, Anjan and Niranjan so also her nephew Jhapal
(the deceased persons) were sleeping and the appellant and his
wife (P.W.9) were sleeping in the third room, the entrance of
which opened to the room where the deceased persons were
sleeping. At about midnight, she heard some sound and woke up
and awakened her husband (P.W.2) and when she along with her
husband came out, they found the appellant holding a crowbar
and when they called him, he ran away throwing the crowbar
and on suspicion, she along with her husband entered inside the
JCRLA No.83 of 2010 Page 26 of 39
room where they found their two sons were lying in serious
condition with profuse bleeding and at that time, their nephew
was lying dead and therefore, they shouted at the spot and
hearing their shout, the neighbours came there and hoping that
their two sons would survive, they immediately shifted them to
the hospital, but the doctor found both of them dead. P.W.1 has
further stated that since one year prior to the occurrence, the
appellant was staying in their house and during his stay, he was
insisting his wife (P.W.9) to persuade P.W.2 to get a share of
property recorded in his name and the accused Surukuna Bera
was also persuading the appellant to get the property of P.W.2
recorded in his name. The evidence of this witness has not been
shaken in the cross-examination; rather it is getting
corroboration from the evidence of P.W.2 who has also stated
that he found the appellant running away from the spot by
throwing a crowbar, when he along with his wife (P.W.1) came
out hearing some sound. P.W.2 also stated that the appellant
was staying in their house for about one year since the date of
occurrence and was demanding a share from the property. He
further stated that the brother of the appellant was also
persuading him to grab the properties.
JCRLA No.83 of 2010 Page 27 of 39
The evidence of the eye witness P.W.9 is not only
getting corroboration from the evidence of the two witnesses,
i.e. P.Ws.1 and 2 but also from the medical evidence adduced by
the three doctors i.e. P.Ws.13, 14 and 15, who conducted the
post-mortem examination of the three deceased and proved
their reports. In our humble view, the evidence rendered by
P.W.9 is clear, cogent, trustworthy and above-board, beyond
every speck of doubt and suspicion and as such, we have got no
hesitation to place reliance on her evidence.
In view of the evidence of the witnesses i.e. P.W.1,
P.W.2 and P.W.9, it is apparent that the appellant was insisting
for a share in the properties of P.W.2 and therefore, the
prosecution has also proved the motive behind the commission
of the crime.
At the instance of the appellant, the weapon of
offence i.e. hammer (M.O.I) was recovered from the well on the
basis of his statement (Ext.6) recorded under section 27 of the
Evidence Act. Apart from the I.O. (P.W.17), the two seizure
witnesses i.e. P.Ws.8 and 10 have also stated in that regard and
the seizure list vide Ext.7 has been proved. M.O.I was sent for
chemical examination and the C.E. report (Ext.17) indicates that
human blood was noticed on the said hammer. This is an
JCRLA No.83 of 2010 Page 28 of 39
additional material against the appellant to show his involvement
in the crime.
Whether the appellant has proved the plea of insanity?:
10. Learned counsel for the appellant argued that the
appellant was suffering from unsoundness of mind and the
evidence to that effect has been given by D.W.1, who was a co-
accused in this case and the younger brother of the appellant.
Though D.W.1 has stated that the appellant was
suffering from mental disorder in the year 2003 and again he
suffered from mental disorder in the year 2006 and he was not
free from the mental ailments and was further treated by one Dr.
Sailendra Kumar at Ranchi and that the said doctor was
prescribing medicines to him, but no medical documents have
been produced before police or in Court in support of such
treatment to substantiate the plea of insanity. D.W.1 admits that
he had not produced any document before the police regarding
insanity of the appellant.
To prove insanity of a person accused of a crime, it is
important to show that he was bereft of his sanity at the time of
commission of the crime and such lack of sanity must also match
the threshold of 'legal insanity' and not mere 'medical insanity'.
JCRLA No.83 of 2010 Page 29 of 39
Section 84 of the I.P.C., which deals with the act of a
person of unsound mind, states that as follows:-
"Nothing is an offence which is done by a person
who, at the time of doing it, by reason of
unsoundness of mind, is incapable of knowing
the nature of the act, or that he is doing what is
either wrong or contrary to law."
Law is well settled that there is difference between
'medical insanity' and 'legal insanity'. An accused who seeks
exemption from the liability under section 84 of the I.P.C., has to
prove 'legal insanity' and not 'medical insanity'. The Hon'ble
Supreme Court in the case of Bapu -Vrs.- State of Rajasthan
reported in (2007) 8 Supreme Court Cases 66 has
elaborated different kinds of persons who can be called as non
compos mentis and in the words of the Hon'ble Court-
"9. There are four kinds of persons who may be
said to be non compos mentis (not of sound
mind) i.e. (1) an idiot; (2) one made non
compos by illness; (3) a lunatic or a mad man;
and (4) one who is drunk. An idiot is one who is
of non-sane memory from his birth, by a
perpetual infirmity, without lucid intervals; and
those are said to be idiots who cannot count
twenty, or tell the days of the week, or who do
not know their fathers or mothers, or the like,
JCRLA No.83 of 2010 Page 30 of 39
(see Archbold's Criminal Pleadings, Evidence and
Practice, 35th Edn., pp. 31-32; Russell on
Crimes and Misdemeanors, 12th Edn., Vol. 1, p.
105; 1 Hale's Pleas of the Crown 34). A person
made non compos mentis by illness is excused
in criminal cases from such acts as are
committed while under the influence of this
disorder, (see 1 Hale PC 30). A lunatic is one
who is afflicted by mental disorder only at
certain periods and vicissitudes, having intervals
of reason, (see Russell, 12th Edn., Vol. 1, p.
103; Hale PC 31). Madness is permanent.
Lunacy and madness are spoken of as acquired
insanity, and idiocy as natural insanity."
In the present case, no clinching evidence has been
adduced from the side of defence that the appellant had any
characteristics to come under the purview of any of the aforesaid
non compos mentis. Importantly, though D.W.1 has deposed
that the appellant was having mental illness and he was under
medication for the same, the defence still failed to bring to the
attention of the Court any medical document or evidence which
can corroborate such a claim. Nonetheless, merely bringing some
documents also would not suffice if it is not proved that the
accused was under the influence of insanity at the time of
commission of offence. The burden of proof that the accused was
of unsound mind and as a result thereof, he was incapable of
JCRLA No.83 of 2010 Page 31 of 39
knowing/understanding the nature and consequence of his acts
is on the accused in view of section 105 of the Indian Evidence
Act. To establish a defence on the ground of insanity, it must be
clearly proved that at the time of committing the act, the
accused was labouring under such a defect of reason, from
disease of mind, as not to know the nature and quality of the act
he was doing or if he did know it, that he did not know what he
was doing was wrong or contrary to law. The Hon'ble Supreme
Court in the case of Rupesh Manger -Vrs.- State of Sikkim
reported in (2023) 9 Supreme Court Cases 739 has
deliberated upon the standard of proof required for proving
insanity under section 84 of the I.P.C. and held as follows:
"20. It is settled that the standard of proof to
prove the lunacy or insanity is only "reasonable
doubt". For this, we may profitably refer to a
judgment of this Court in Dahyabhai
Chhaganbhai Thakkar v. State of Gujarat
[Dahyabhai Chhaganbhai Thakkar v. State
of Gujarat, 1964 SCC OnLine SC 20 : (1964)
7 SCR 361] wherein, referring to Section 84 IPC
and the rule of evidence as contained in Sections
4, 101 and 105 of the Evidence Act, this Court
held thus: (SCR pp. 364-65 and 367-68)
"It is a fundamental principle of criminal
jurisprudence that an accused is
JCRLA No.83 of 2010 Page 32 of 39
presumed to be innocent and, therefore,
the burden lies on the prosecution to
prove the guilt of the accused beyond
reasonable doubt. The prosecution,
therefore, in a case of homicide shall
prove beyond reasonable doubt that the
accused caused death with the requisite
intention described in Section 299 the
Penal Code. This general burden never
shifts and it always rests on the
prosecution. But, as Section 84 of the
Penal Code provides that nothing is an
offence if the accused at the time of
doing that act, by reason of unsoundness
of mind was incapable of knowing the
nature of his act or what he was doing
was either wrong or contrary to law. This
being an exception, under Section 105 of
the Evidence Act, the burden of proving
the existence of circumstances bringing
the case within the said exception lies on
the accused; and the Court shall presume
the absence of such circumstances. Under
Section 105 of the Evidence Act, read
with the definition of "shall presume" in
Section 4 thereof, the court shall regard
the absence of such circumstances as
proved unless, after considering the
matters before it, it believes that said
circumstances existed or their existence
JCRLA No.83 of 2010 Page 33 of 39
was so probable that a prudent man
ought, under the circumstances of the
particular case, to act upon the
supposition that they did exist. To put it
in other words, the accused will have to
rebut the presumption that such
circumstances did not exist, by placing
material before the court sufficient to
make it consider the existence of the said
circumstances so probable that a prudent
man would act upon them. The accused
has to satisfy the standard of a "prudent
man". If the material placed before the
court, such as, oral and documentary
evidence, presumptions, admissions or
even the prosecution evidence, satisfies
the test of "prudent man", the accused
will have discharged his burden. The
evidence so placed may not be sufficient
to discharge the burden under Section
105 of the Evidence Act, but it may raise
a reasonable doubt in the mind of a
Judge as regards one or other of the
necessary ingredients of the offence
itself. It may, for instance, raise a
reasonable doubt in the mind of the
Judge whether the accused had the
requisite intention laid down in Section
299 of the Penal Code. If the Judge has
such reasonable doubt, he has to acquit
JCRLA No.83 of 2010 Page 34 of 39
the accused, for in that event the
prosecution will have failed to prove
conclusively the guilt of the accused.
There is no conflict between the general
burden, which is always on the
prosecution, and which never shifts, and
the special burden that rests on the
accused to make out his defence of
insanity.
*** *** ***
The doctrine of burden of proof in the
context of the plea of insanity may be
stated in the following propositions: (1)
The prosecution must prove beyond
reasonable doubt that the accused had
committed the offence with the requisite
mens rea; and the burden of proving that
always rests on the prosecution from the
beginning to the end of the trial. (2)
There is a rebuttable presumption that
the accused was not insane, when he
committed the crime, in the sense laid
down by Section 84 of the Penal Code:
the accused may rebut it by placing
before the court all the relevant evidence
- oral, documentary or circumstantial, but
the burden of proof upon him is no higher
than that rests upon a party to civil
proceedings. (3) Even if the accused was
JCRLA No.83 of 2010 Page 35 of 39
not able to establish conclusively that he
was insane at the time he committed the
offence, the evidence placed before the
court by the accused or by the
prosecution may raise a reasonable doubt
in the mind of the court as regards one or
more of the ingredients of the offence,
including mens rea of the accused and in
that case the court would be entitled to
acquit the accused on the ground that the
general burden of proof resting on the
prosecution was not discharged."
The crucial point of time at which unsoundness of
mind should be established is the time when the crime was
actually committed. The mere fact that on former occasions, the
accused was occasionally subject to insane delusion or has
suffered from disarrangement of mind or that subsequently he
had, at times, behaved like a mentally deficient person is per se
insufficient to bring his case within the exemption. In order to
ascertain whether the accused was insane at the time of
commission of the offence, it may be relevant to consider the
state of such person's mind immediately preceding as well as
subsequent to the commission of the offence.
In the case in hand, the statement of the eye witness
P.W.9 indicates that when she saw the occurrence and the
JCRLA No.83 of 2010 Page 36 of 39
appellant became aware of it, the appellant rushed towards her
with wide eyes holding the hammer. Not only that, when the
appellant was seen holding a crowbar by P.Ws.1 and 2, he threw
the crowbar and ran away from the spot. Evidence is also
available on record that the hammer was concealed by the
appellant inside the well, which was recovered at his instance on
the basis of his statement recorded under Ext.6 as per seizure
list Ext.7. P.W.1 was suggested by the learned defence counsel
in the cross-examination that the appellant was not mentally
sound and that he was being treated for that purpose at Ranchi
by her and her husband (P.W.2) but she has denied the
suggestion. Similarly, P.W.2 was suggested that the appellant
was of unsound mind for which he and his wife (P.W.1) were
treating him at Ranchi, but he denied the same. Though a
specific suggestion has been given to P.W.9 that the appellant
was being treated at Ranchi due to unsoundness of his mind, but
she has also denied such suggestion. Neither the medical
documents have been proved in support of the medical
treatment of the appellant nor has the doctor who was treating
the appellant been examined by the defence. Therefore, when all
the three witnesses, who were supposed to know about the
unsoundness of mind of the appellant, if any, have specifically
JCRLA No.83 of 2010 Page 37 of 39
denied the suggestion given by the learned defence counsel in
that respect and no documentary evidence has been brought on
record, it is difficult to accept that at the time of commission of
offence, he was having unsoundness of mind. The conduct of the
appellant at the time of occurrence and soon after the
occurrence indicate that he was not in unsoundness of mind at
the time of the occurrence, rather he was quite conscious of
what he was doing and the evidence on record is also there that
he had the motive for the commission of the crime as he was
persuading P.W.2 to get a share from the properties, but had
remained unsuccessful.
Conclusion:
11. In view of the foregoing discussions, we are of the
view that through the evidence of the eye witness (P.W.9)
coupled with the evidence of P.Ws.1 and 2 and the medical
evidence and also the recovery of the weapon of offence
(hammer) from the well at the instance of the appellant, the
prosecution has clearly established the charge against the
appellant. We find no infirmity or illegality in the impugned
judgment and order of conviction of the learned trial Court in
convicting the appellant under section 302 of I.P.C. and imposing
the sentence as already stated.
JCRLA No.83 of 2010 Page 38 of 39
In the result, the Jail Criminal Appeal being devoid of
merit, stands dismissed.
Lower Court record along with a copy of the
judgment be sent to the concerned Court.
Before parting with the case, we would like to put on
record our appreciation to Mr. Purna Chandra Behera, learned
counsel for his preparation and presentation of the case before
the Court and rendering valuable help in arriving at the decision
above mentioned. This Court also appreciates the valuable help
and assistance rendered by Mr. Sarat Pradhan, learned
Additional Standing Counsel for the State.
.................................
S.K. Sahoo, J.
..................................
Chittaranjan Dash, J.
Orissa High Court, Cuttack
The 19th November, 2024
S.K. Parida, ADR-cum-APS
Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 26-Nov-2024 16:50:08
