Orissa High Court
Daktar Bhoi vs State Of Odisha on 8 April, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.21 of 2010
An appeal from the judgment and order dated 18.05.2010
passed by the Adhoc Addl. Sessions Judge (F.T.C), Balangir at
Patnagarh in Sessions Case No. 217/1 of 2009-10.
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Daktar Bhoi ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Radharaman Das Nayak
Advocate
For Respondent: - Mr. Jateswar Nayak
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MISS JUSTICE SAVITRI RATHO
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Date of Hearing: 24.03.2025 Date of Judgment: 08.04.2025
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S.K. SAHOO, J. The appellant Daktar Bhoi along with his wife Smt.
Binodini Bhoi faced trial in the Court of learned Adhoc Addl.
Sessions Judge (F.T.C), Balangir at Patnagarh in Sessions Case
No.217/1 of 2009-10 for the offences punishable under sections
302/201/34 of the Indian Penal Code (hereinafter 'I.P.C.') on the
JCRLA No.21 of 2010 Page 1 of 36
accusation that on 28.06.2009 at about 12.30 p.m. at village
Damkipali, they committed murder of Jaylal Bhoi (hereafter 'the
deceased') in furtherance of their common intention and that
knowing or having reason to believe that the offence had been
committed, they caused certain evidence of the said offence to
disappear by removing the dead body in a gunny bag with an
intention to screen themselves from legal punishment.
The learned trial Court vide impugned judgment and
order dated 18.05.2010 while acquitting the co-accused Binodini
Bhoi of all the charges, found the appellant guilty under sections
302/201 of I.P.C. and sentenced him to undergo imprisonment
for life and to pay a fine of Rs.2,000/- (rupees two thousand), in
default, to undergo R.I. for one year for commission of offence
under section 302 of the I.P.C. and R.I. for two years and to pay
a fine of Rs.1,000/- (rupees one thousand), in default, to
undergo R.I. for a further period of six months for commission of
offence under section 201 of I.P.C. and both the substantive
sentences were directed to run concurrently.
Prosecution Case:
2. The prosecution case, in brief, is that on 28.06.2009
at about 2.00 p.m. Hadibandhu Sethi (P.W.23), A.S.I. of
Larambha outpost received a telephonic information from an
JCRLA No.21 of 2010 Page 2 of 36
unknown person regarding the murder of the deceased and on
receiving such information, he made Station Diary Entry No.437
dated 28.06.2009 and proceeded to village Damkipali along with
Constable No.438 Hina Baralebdia (P.W.17) to enquire into the
matter. On reaching there, the informant Gahaki Bhoi (P.W.12),
the son of the deceased presented a written report (Ext.3)
before P.W.23 to the effect that on the same day morning, he
had been to his field with buffalos for grazing and the deceased
had gone to the paddy field locally known as Talimunda situated
in the said village to spread manure. At about 12 noon, he
returned home with buffalos and the deceased had been to the
straw heap at their paddy field to bind straws. It is further stated
in the written report that while he was taking rest after taking
lunch, his elder father Jagabandhu Bhoi (P.W.13) and his son
Kartika Bhoi (P.W.16) informed him that the appellant, who was
staying near Kutramunda agricultural field, caught hold of his
deceased father near his house while he was returning with
straws and after tying the neck of the deceased by means of a
napkin with wooden post near his house, killed the deceased by
stabbing with a Trisul (trident) on his head and body and
thereafter, packed the dead body of the deceased in a gunny
bag, loaded it on his bicycle and went towards the jungle. On
JCRLA No.21 of 2010 Page 3 of 36
getting such information, P.W.12 immediately went in search of
his deceased father towards the nearby jungle, but could not
trace him out. Thereafter, he returned back to the house of his
uncle and came to know that after committing the murder of his
deceased father, the appellant fled away from the house. He also
noticed blood stains on the wooden post, straws have been burnt
and the wooden post has been wiped with water and mud. It is
further stated that as mangoes from the tree belonging to their
share were falling over the roof of the house of the appellant, the
appellant had kept grudge on his deceased father to kill him.
Since the written report disclosed the commission of
a cognizable case, P.W.23 sent the report to the Inspector in-
charge of Patnagarh police station through B. Tandi, the Grama
Rakhi for its registration and accordingly, the Inspector in-charge
of Patnagarh police station registered Patnagarh P.S. Case No.
118 dated 29.06.2009 under sections 302/201 of I.P.C. against
the appellant. P.W.23 took up preliminary investigation of the
case, searched and detected the dead body of the deceased lying
inside Budhiduguri Nala packed in a gunny bag tied with rope
and he brought out the same from the Nala with the help of local
people and shifted it to village Damkipali and kept it in the rest
shed of the village since the place from where the dead body was
JCRLA No.21 of 2010 Page 4 of 36
recovered was a dense forest and there was apprehension of
attack by wild animals.
The Inspector in-charge of Patnagarh police station
handed over the charge of investigation to Kandarpasen Nayak
(P.W.24), S.I. of police of the said police station who took up
investigation of the case from P.W.23.
During course of investigation, he made requisition
to the S.D.M., Patnagarh to depute one Executive Magistrate to
remain present during inquest over the dead body of the
deceased and also sought for the help of Scientific Team,
Balangir. Thereafter, he visited the spot and after arrival of the
Executive Magistrate and Scientific Team, he prepared the spot
map (Ext.14) and effected seizure of bamboo lathi (M.O.III) from
the courtyard of the appellant as per seizure list (Ext.4). He also
examined the witnesses and held inquest over the dead body of
the deceased and prepared the inquest report vide Ext.2, sent
the dead body of the deceased for post mortem examination to
the S.D.M.O., Patnagarh as per the dead body challan (Ext.15).
On production of blood sample, saline gauge cloth, control gauge
cloth, saline earth piece of blood stained gunny bag, piece of
control gunny bag, saline extract of gauge cloth by the Scientific
Team, the same were seized as per seizure list Ext.4. P.W.24
JCRLA No.21 of 2010 Page 5 of 36
also seized a violate colour lungi (M.O.I), a blood stained gunny
bag (M.O.VI), two nos. of vials containing the blood sample of
the deceased collected by the Medical Officer during post
mortem, which were marked as Ext.5. P.W.24 apprehended the
appellant on 30.06.2009 and on the same day, he also arrested
the co-accused Binodini Bhoi and while the appellant was in
police custody, he made a disclosure statement under section 27
of the Evidence Act (Ext.12/2) in presence of the witnesses and
stated that he had concealed the trident near a well and he
would led and give recovery of the same. Accordingly, the
appellant led P.W.24 to the place of concealment and in presence
of witnesses, he gave recovery of the trident (M.O.IV) which was
seized as per seizure list Ext.11/4. Thereafter, P.W.24 forwarded
both the appellant and his wife, the co-accused to the Court.
P.W.24 collected the post mortem report (Ext.9) and made a
query as per Ext.10/2 to the doctor conducting post mortem
examination as to whether the injuries found on the dead body
could be possible by the seized weapon of offence along with the
lathi and the trident and the doctor submitted the query report
as per Ext.10. P.W.24 thereafter made a prayer to the learned
S.D.J.M., Patnagarh to send the seized exhibits to R.F.S.L.,
Sambalpur for chemical examination as per Ext.17. P.W.24 also
JCRLA No.21 of 2010 Page 6 of 36
seized the bicycle on being produced by one Mahadev Padhan,
which was used by the appellant in lifting the dead body of the
deceased as per seizure list Ext.20. P.W.24 also effected seizure
of Larambha outpost station diary book vide entry dated
16.06.2009 to 01.07.2009 as per seizure list Ext.6 and gave the
same in the zima of P.W.23 on executing zimanama (Ext.13) and
on completion of investigation, P.W.24 submitted charge sheet
against the appellant and his wife, the co-accused Smt. Binodini
Bhoi under sections 302/201/34 of the I.P.C.
Framing of Charges:
3. After submission of charge sheet, following due
procedure, the case was committed to the Court of Session
where the learned trial Court framed charges as aforesaid and
since the appellant pleaded not guilty and claimed to be tried,
the sessions trial procedure was resorted to prove their guilt.
Prosecution Witnesses, Exhibits & Material Objects:
4. In order to prove its case, the prosecution examined
as many as twenty four witnesses.
P.W.1 Sumitra Bhoi, the widow of the deceased has
stated that her deceased husband and her son (P.W.12) had
been to the agricultural land and during noon time, P.W.12
returned home with buffalos and when she enquired the
JCRLA No.21 of 2010 Page 7 of 36
whereabouts of the deceased, P.W.12 went in search of the
deceased and in course of such search, his elder father
Jagabandhu Bhoi (P.W.13) told him that the appellant had killed
the deceased. Thereafter, P.W.12 along with some villagers went
in search of the deceased and after returning to her house, they
disclosed before her that the appellant, who was the brother of
the deceased, after killing the deceased, put the dead body
inside a gunny bag and had thrown in a Nala in Budhiduguri and
accordingly, P.W.12 reported the matter at the police station.
P.W.2 Mohan Bhoi who is a co-villager of both the
appellant and the deceased, has stated that on the date of
occurrence during lunch time, when he was coming on the
village road, Mena Bhoi (P.W.4) was coming towards his house
and on seeing him, he disclosed that the appellant after killing
the deceased, packed the dead body inside a gunny bag and
went towards the jungle in a cycle and he advised P.W.2 to
inform the matter to police. Both P.W.2 and P.W.4 went to the
house of Radhakanta Bhoi (P.W.11) and disclosed the matter and
requested him to report to the police over phone. Accordingly,
P.W.11 informed the police over phone and on arrival of the
police, P.W.2 also accompanied the police in search of the
deceased. He further stated that at about 7.00 p.m. to 8.00
JCRLA No.21 of 2010 Page 8 of 36
p.m., the dead body of the deceased was detected in a ditch
(Nala), which was packed in a gunny bag and the dead body of
the deceased was brought to the rest house situated near the
bus stoppage of the village and the police guarded the dead body
throughout the night. He also stated that after recovery of the
dead body, P.W.12 presented the written report to the police at
the spot.
P.W.3 Kailash Bariha, who is a co-villager of both the
appellant and the deceased, has been declared hostile by the
prosecution.
P.W.4 Mena Bhoi, who is the brother of both the
appellant and the deceased, has stated that on 28.01.2009
during noon time, while he was taking rest, his nephew Kartika
Bhoi (P.W.16) informed him that the appellant had killed the
deceased by means of a Trisul and thereafter, he along with
P.W.16 went to the headman of the village, namely, Mohan Bhoi,
who went to P.W.11 to inform the incident to the police over
phone as he had got a telephone and accordingly, P.W.11
intimated the matter to the police. He further stated that on
arrival of the police, he also accompanied the police in search of
the deceased towards Budhiduguri jungle and during search,
they found a gunny bag packed with the dead body of the
JCRLA No.21 of 2010 Page 9 of 36
deceased in a ditch and as per the direction of the police, they
brought out the packed gunny bag to the village and kept it in
the rest shed of the village and the police guarded the dead body
throughout the night. He further stated that on the next day, the
inquest over the dead body was conducted in presence of the
Tahasildar. He further stated that fifteen days prior to the
incident, there was an altercation between the appellant and the
deceased relating to a mango tree which situates near the house
of the appellant, which was falling to the share of the deceased
and on his intervention, the matter was subsided.
P.W.5 Bidyadhar Tandi was the Grama Rakhi of the
village, who has been declared hostile by the prosecution.
P.W.6 Malati Bhoi, who is a co-villager of both the
appellant and the deceased, has stated that on the relevant
date, he had been to the village and she heard that the appellant
had killed his brother. The said witness has been declared hostile
by the prosecution.
P.W.7 Netrananda Panigrahi who is a co-villager of
both the appellant and the deceased, has stated that on the date
of occurrence, while he was taking rest, Jagabandhu Bhoi
(P.W.13) came to his house and disclosed that the appellant had
killed his deceased brother and out of fear, he had come to his
JCRLA No.21 of 2010 Page 10 of 36
house and to leave his house only after the police reached his
village and when police reached, the headman of the village
came to his house and called P.W.13.
P.W.8 Parameswar Suna, who is a co-villager of both
the appellant and the deceased, is a witness to the seizure of
bamboo lathi as per seizure list Ext.1.
P.W.9 Jagannath Gadtia, who is a close relative of
both the appellant and the deceased, has stated that on getting
information about the death of the deceased, he had been to
their village and accompanied the police and other villagers in
search of the deceased and during such search, they noticed a
gunny bag thrown in a Nala inside Budhiduguri jungle. He further
stated that he along with other villagers brought the dead body
to the village Damkipali and kept in rest shed and on the next
day, the police held inquest over the dead body in presence of
the Magistrate and prepared the inquest report (Ext.2). He is a
witness to such inquest report.
P.W.10 Durga Charan Sahu was the Tahasildar -cum-
Executive Magistrate, Patnagarh, in whose presence, the police
held inquest over the dead body of the deceased. He proved the
inquest report as per Ext.2.
JCRLA No.21 of 2010 Page 11 of 36
P.W.11 Radhakanta Bhoi who is a co-villager of both
the appellant and the deceased, has stated that on the date of
incident at about 1.30 p.m., while he was taking rest, the village
headman sent his son Debasis Bhoi to him to ascertain about the
telephone number of the A.S.I. of Larambha outpost and he
further disclosed that the elder brother of the deceased had
come to his house to inform the police that the appellant had
killed the deceased. Accordingly, he contacted P.W.23 on his
mobile phone and disclosed about the incident. He further stated
that he heard that after committing the murder of the deceased,
the appellant had kept the dead body of the deceased in a gunny
bag and took it towards the jungle.
P.W.12 Gahaki Bhoi, who is the son of the deceased,
is the informant in the case. He stated about the search made
inside the jungle and detection of the gunny bag in the Nala
carrying the dead body of the deceased. He is also a witness to
the inquest over the dead body.
P.W.13 Jagabandhu Bhoi, who is the elder brother of
the appellant and the deceased has stated that on the date of
occurrence at about 12.30 p.m., while he was taking rest in his
house, he heard a sound calling him 'DADA DADA' and on
hearing such sound, he came out of the house and went towards
JCRLA No.21 of 2010 Page 12 of 36
the direction from where the sound was coming and found that
the deceased was lying on the backside of the house of
Chatrubhuja Bhoi and the appellant was standing near it by
holding a lathi. The appellant on seeing P.W.13, declared that
whosoever came near him, he would see him and thus, he
returned to his house and told his family members not to come
outside and out of fear, he went to the house of Netrananda
Pujari (P.W.7) and disclosed before him that the appellant had
killed the deceased. He further stated that though P.W.7 told him
to go the spot and insist the appellant to surrender before police,
but out of fear, he told him to go to the spot only after the
arrival of police. He further stated that on that day at about 3.00
p.m., he was called by the police and he accompanied the police
to the spot field and also to Budhiduguri jungle in search of the
deceased. He further stated that during such search, they found
that the dead body of the deceased in a Nala being packed with
a gunny bag and the dead body was brought to the rest shed of
the village and on the next day, inquest was held by the police
and he is a witness to the inquest report Ext.2.
P.W.14 Laxmikanta Bag and P.W.15 Jagyan Kumar
Bhoi, who were the constables attached to Patnagarh police
station, are the witnesses to the seizure of saline extract of
JCRLA No.21 of 2010 Page 13 of 36
blood, control gauge cloth, blood stained earth, control earth,
blood stained gunny bag piece, control gunny bag and saline
extract of gauge cloth, control gauge cloth and one bamboo lathi
as per seizure list Ext.4. They are also the witnesses to the
seizure of one violet colour lungi, one gunny bag stained with
blood, one command certificate and sample blood of the
deceased collected by the Medical Officer during post mortem
examination as per seizure list Ext.5.
P.W.16 Kartika Bhoi, who is the nephew of the
appellant and the deceased, has stated that on the date of
occurrence, while he was in his house, he heard a sound
'DAKATAR MOTE MARI DEUCHI MOTE BANCHA BANCHA' and on
hearing the shout, he along with his father came outside and
proceeded towards the direction from where the shout was
coming and they found that the deceased was lying on the
backside of the house of Chaturbhuja and the appellant was
standing near him holding a bamboo lathi affixed with Trishul
(trident) and the appellant was declaring to kill whosoever dare
to come to him. On hearing the same, out of fear, his father
went inside the village and he was watching the incident by
concealing himself. He further stated that the appellant went
inside his house, brought a gunny bag with him and put the dead
JCRLA No.21 of 2010 Page 14 of 36
body of the deceased inside the gunny bag, tied the face of
gunny bag by means of a rope, loaded the same on the middle of
the cycle and went towards Budhiduguri jungle. He further stated
that he went to the house of Mena Bhoi (P.W.4) and disclosed
before him about the incident, who in turn went to the headman
of the village to intimate to the police. He further stated that on
arrival of police, he accompanied the police and other villagers in
search of the deceased and found a gunny bag inside the Nala of
the jungle in which the dead body of the deceased was packed.
He further stated that as per the direction of the police, the said
gunny bag was brought to the village and kept in the rest shed.
He further stated that he along with his father and other villagers
guarded the dead body of the deceased throughout the night and
on the next day morning, inquest over the dead body was
conducted and he is a witness to the inquest report vide Ext.2.
P.W.17 Hina Baralebdia, who was the constable
attached to Laramba outpost, accompanied P.W.23 to the spot
village as per his direction. He stated that he also accompanied
P.W.23 along with other villagers in search of the deceased
towards the jungle on getting information that the appellant had
taken the dead body of the deceased in a bicycle and following
the track mark of the bicycle, they went towards the jungle and
JCRLA No.21 of 2010 Page 15 of 36
during such search, they found a gunny bag stained with blood
and its face was tied lying in a Nala inside the jungle. He further
stated that they brought out the gunny bag from the Nala and
kept in the rest shed. He further stated that he along with others
guarded the dead body of the deceased throughout the night and
on the next day, inquest over the dead body was held. He is a
witness to the seizure of the wearing apparels of the deceased as
per seizure list Ext.6.
P.W.18 Rabindra Kumar Patra, who was the Scientific
Officer, DFSL, Bolangir, has stated that as per the requisition of
the I.I.C., Patnagarh police station and on the direction of the
S.P., Bolangir, he visited the spot and collected the samples as
per seizure list Ext.7. He is also a witness to the seizure of
photographs as per seizure list Ext.4.
P.W.19 Pramod Kumar Khamari, was the A.S.I.
(Photographer) in the office of DFSL, Bolangir, who took the
photographs of the dead body of the deceased as well as the
spot and the scene of occurrence and the I.O. collected the same
from their laboratory. He is a witness to the seizure of such
photographs as per seizure list Ext.7.
P.W.20 Dr. Durga Dutta Das was working as
Assistant Surgeon in Sub-divisional Hospital, Patnagarh. On
JCRLA No.21 of 2010 Page 16 of 36
police requisition, he conducted post mortem examination over
the dead body of the deceased Jayalal Bhoi and proved his report
vide Ext.9. He also proved query report as per Ext.10.
P.W.21 Mahendra Hariha and P.W.22 Subash Seth
are the co-villagers of both the appellant and the deceased and
though they were witnesses to the seizure of trident as per
seizure list Ext.11, but they were declared hostile by the
prosecution.
P.W.23 Hadibandhu Sethi was the A.S.I. of Larambha
outpost who on getting telephone call about the murder of the
deceased, made S.D. Entry No.437 dated 28.06.2009 and
proceeded to the spot village along with P.W.17, where P.W.12
presented the written report which revealed a cognizable case
under sections 302/201 of I.P.C. and accordingly, he took up
investigation and sent the report to I.I.C., Patnagarh police
station for its registration. During search, he detected the dead
body found lying inside Budhiduguri Nala packed in a gunny bag
being tied with a rope. The dead body was brought out from the
Nala with the help of local people and since it was a dense forest
and there was apprehension of attack by wild animals, the dead
body was shifted to village Damkipali and kept in the rest shed of
village Damkipali. He further stated that he also made a request
JCRLA No.21 of 2010 Page 17 of 36
to the I.I.C. to send Scientific Officers to the spot and thereafter,
the charge of investigation was taken over by P.W.24. He is a
witness to the written report (Ext.3) and zimanama (Ext.13).
P.W.24 Kandarpasen Naik was the Inspector in-
charge of Patnagarh police station and he is the Investigating
Officer of this case.
The prosecution proved twenty numbers of
documents to fortify its case. Exts.1, 4, 5, 6, 11 and 20 are the
seizure lists, Ext.2 is the inquest report, Ext.3 is the F.I.R., Ext.7
is the spot visit report, Exts.8 to 8/10 are the photographs, Ext.9
is the post mortem examination report, Ext.10 is the report of
the doctor (P.W.20), Ext.12/2 is the statement of the appellant
recorded under section 27 of the Evidence Act, Ext.13 is the
zimanama, Ext.14 is the spot map, Ext.15 is the dead body
challan, Ext.16 is the command certificate, Ext.17 is the prayer
of the I.O. for sending the exhibits to R.F.S.L., Sambalpur for
chemical examination, Ext.18 is the forwarding letter for sending
the exhibits to R.F.S.L., Sambalpur and Ext.19 is the chemical
examination report.
The prosecution also produced seven material
objects for proving its case. M.O.I is the lungi, M.O.II is the
JCRLA No.21 of 2010 Page 18 of 36
gamuchha, M.O.III is the lathi, M.O.IV is the trident, M.O.V is the
piece of blood stained gunny bag and M.O.VI is the gunny bag.
Defence Plea:
5. The defence plea of the appellant is one of complete
denial to the prosecution case and false implication.
Findings of the Trial Court:
6. The learned trial Court, after assessing the oral as
well as documentary evidence on record, came to hold that from
the evidence of the doctor (P.W.20), it can be conclusively held
that the deceased died a homicidal death. It was further held
that the discrepancies and contradictions as pointed out in the
evidence of P.Ws.12, 13 and 16 are insignificant and does not
render their evidence unworthy of acceptance. The evidence of
P.W.16 who is an eye witness to the occurrence, found
corroboration from the evidence of the I.O. (P.W.23) who
detected the dead body in a Nala inside the jungle which was put
in a gunny bag. The prosecution has well proved its case against
the appellant by adducing cogent, trustworthy evidence to the
effect that on the relevant date and time, when the deceased
was returning to his house with bundle of straws, near the spot,
the appellant tied his neck by means of a napkin in a wooden
post and dealt consecutive blows by means of a bamboo lathi
JCRLA No.21 of 2010 Page 19 of 36
fitted with trident (M.O.IV and M.O.III) with intention to commit
his murder and due to such assault, the deceased sustained
severe bleeding injuries on his person, which resulted in his
death. Learned trial Court further held that after the death of the
deceased, the appellant put the dead body in a gunny bag
(M.O.VI), loaded it in his bicycle and took the same and threw it
in a Nala inside Budhiduguri jungle in order to cause
disappearance of the evidence of the offence of murder with
intention to screen himself from legal punishment and
accordingly, held the appellant guilty under sections 302/201 of
I.P.C. However, so far as the co-accused Binodini Bhoi, the wife
of the appellant is concerned, the learned trial Court relying on
the evidence of the eye witnesses, namely, P.W.13 and P.W.16
held that neither they had stated about the participation of the
said co-accused along with her husband while the appellant was
committing the murder of the deceased nor about her presence
near the scene of occurrence nor there is any evidence except
the uncorroborated testimony of the I.O. (P.W.24) that the co-
accused Binodini knew or had reason to believe that the offence
of murder had been committed by her husband and caused
evidence of commission of the said offence to disappear by
concealing the trident. Learned trial Court further held that
JCRLA No.21 of 2010 Page 20 of 36
simply because the co-accused Binodini happened to be the wife
of the appellant, no presumption can be drawn that she shared
common intention with him in committing the crime in absence
of any positive evidence against her and thus, culpability of the
offences under sections 302/201/34 of I.P.C. cannot be fastened
against her and thereby, the learned trial Court acquitted the co-
accused Smt. Binodini Bhoi of all the charges.
Contentions of Parties:
7. Mr. Radharaman Das Nayak, learned counsel for the
appellant strenuously urged that there are discrepancies in the
evidence of the two eye witnesses i.e. P.W.13 and P.W.16. He
further argued that though P.W.16, son of P.W.13 has stated
that he along with his father (P.W.13) on hearing the shout of
the deceased that the appellant was killing him and to save him,
went in the direction from where such shout was coming and
found that the deceased was lying on the back side of the house
of Chaturbhuja Bhoi and the appellant was standing near him
holding a bamboo lathi affixed with a Trishul, but P.W.13 has
stated that on hearing the call like 'DADA DADA', he went
outside and proceeded in the direction from where such sound
was coming and found that the deceased was lying on the back
side of the house of Chaturbhuja Bhoi and the appellant was
JCRLA No.21 of 2010 Page 21 of 36
standing near him holding a lathi. P.W.13 has not stated to have
accompanied to the spot with P.W.16 and what they heard from
the shout of the deceased, was also discrepant. He argued that it
was not expected on the part of the appellant to remain present
at the spot after committing murder of the deceased just to be
seen by P.W.13 and P.W.16. He further argued that the weapon
of offence i.e. trident (M.O.IV) was sent for chemical
examination, but the chemical examination report (Ext.19)
reveals that no blood was found in the same and therefore, the
prosecution case that the appellant committed the crime with
such weapon becomes a doubtful feature. He further argued that
though all the seized material objects were sent for chemical
examination, but the report (Ext.19) reveals that human blood
was found in some exhibits, but the origin/group of such human
blood could not be detected. Learned counsel further submitted
that in view of the discrepancies in the evidence of the
witnesses, absence of any specific motive on the part of a
brother to kill another brother, benefit of doubt should be
extended in favour of the appellant.
Mr. Jateswar Nayak, learned Addl. Government
Advocate, on the other hand, supported the impugned judgment
and argued that the evidence of P.W.16 to have heard the
JCRLA No.21 of 2010 Page 22 of 36
deceased shouting that the appellant was killing him and to save
him can be utilized as dying declaration of the deceased. He
further stated that what P.W.13 and P.W.16 heard while they
were present in their house may be little discrepant in nature,
but P.W.16 was quite younger in age and almost half the age of
P.W.13 and therefore, it was not expected that what P.W.16 had
heard, would also be audible to P.W.13 in view of his age.
However, their version regarding the presence of the appellant
near the dead body of the deceased holding a lathi in the
backside of the house of Chaturbhuja Bhoi so also the threat
given by the appellant at that point of time is consistent. He
argued that the opinion given by the doctor (P.W.20) to have
noticed number of injuries and his opinion that some of the
injuries were possible by trident (M.O.IV) and injury on the
occiput was possible by bamboo stick (M.O.III) corroborates the
ocular testimonies of P.W.13 and P.W.16. He further argued that
the evidence of P.Ws.2, 4, 11 and 12 regarding recovery of the
dead body of the deceased packed in a gunny bag inside the
jungle is another relevant feature which lends support to the
evidence of P.W.16 who has stated that the appellant put the
dead body of the deceased in a gunny bag, loaded it on the cycle
and went towards Budhiduguri jungle. The learned counsel
JCRLA No.21 of 2010 Page 23 of 36
further argued that absence of any blood in the trident which
was seized at the instance of the appellant or non-finding of
human blood on the bamboo stick cannot be a ground to
disbelieve the prosecution case and as such, the learned trial
Court is quite justified in convicting the appellant and therefore,
the appeal should be dismissed.
Whether the deceased met with homicidal death?:
8. Before adverting to the contentions raised by the
learned counsel for the respective parties, we have to carefully
scrutinize the evidence on record to see as to how far the
prosecution has proved that the deceased Jaylal Bhoi met with a
homicidal death.
The doctor (P.W.20) conducted post-mortem
examination over the dead body of deceased Jaylal Bhoi and
noticed the following injuries:
(i) Average body built male with sign of
decomposition.
(ii) Incised wound of size 3"x ½" x ½" over
the left side cheek;
(iii) Incised wound of size 3"x ½" x 3" over the
medial aspect of left mid fore arm;
(iv) Incised wound over the occiput of size 1"x
½" x ½";
JCRLA No.21 of 2010 Page 24 of 36
(v) Stab wound of size 3" x 1" brain deep over
the left side fore head with fracture bone with
underline hematoma in the brain measuring 10
c.m. x 10 c.m.;
(vi) Stab wound of size 1"x ¼ " deep into the
peritoneal cavity with hemoperitoneum injury
mesenteric vessels and transverse colon;
(vii) Ligature mark of size 1 c.m. width over
the neck above the thyroid cartilage without any
bony injury with subcutaneous bleeding, it was
parchment hard to feel and was present in front
of the neck horizontally in direction and deficient
at the back of the neck.
On internal dissection, P.W.20 found that there was
homicidal brain injury along with injury to peritoneum and the
cause of death was due to the brain injury accompanied by
shock. He proved the post mortem report (Ext.9).
The I.O. also made a query regarding the possibility
of the injuries sustained by the deceased Jaylal Bhoi by the
weapon 'trident' (M.O.IV) seized during investigation at the
instance of the appellant and the doctor opined that all the
injuries detected on the person of the deceased except the injury
over the occiput were possible by the trident (M.O.IV) and the
injury over occiput was possible by bamboo stick (M.O.III). The
query report has been marked as Ext.10.
JCRLA No.21 of 2010 Page 25 of 36
In view of the evidence available on record, the
inquest report of the deceased vide Ext.2, the post mortem
report findings as per Ext.9 and the evidence of the doctor i.e.
P.W.20, who conducted post mortem examination over the dead
body of the deceased Jaylal Bhoi, we are of the view that the
learned trial Court has rightly held that the prosecution has
successfully established that the deceased met with a homicidal
death.
Whether the eye witnesses account of P.W.13 & P.W.16
are reliable and trustworthy?:
9. There are two eye witnesses to the occurrence, i.e.
P.W.13 and P.W.16.
P.W.13 is the elder brother of the appellant so also
the deceased. He has stated that on the date of occurrence at
about 12.30 p.m., while he was taking rest in his house, he
heard somebody was calling him 'DADA DADA'. On hearing such
sound, he came out of the house and went towards the direction
from where such sound was coming and found that the deceased
was lying on the backside of the house of Chatrubhuja Bhoi and
the appellant was standing near it by holding a lathi and on
seeing him, the appellant declared that whosoever came near
him, he would see him and on hearing such threat, he returned
JCRLA No.21 of 2010 Page 26 of 36
to his house and told his family members not to come outside
and out of fear, he went to the house of Netrananda Pujari
(P.W.7) and disclosed before him that the appellant had killed
the deceased. He further stated that though P.W.7 asked him to
go the spot and insist the appellant to surrender before the
police, but out of fear, he told P.W.7 to go to the spot only after
arrival of police. He further stated that on that day at about 3.00
p.m., he was called by the police and he accompanied the police
to the spot field and also to Budhiduguri jungle in search of the
deceased. He further stated that during such search, they found
that the dead body of the deceased in a Nala being packed with
a gunny bag and the dead body was brought to the rest shed of
the village and on the next day, inquest was held by the police
and he is a witness to the inquest report (Ext.2). He also stated
that the police effected seizure of lungi, gamucha and lathi
marked as M.Os.I, II and III respectively from the courtyard of
the appellant. In the cross-examination, he stated that they all
the three brothers were separated in house and mess and the
family of the appellant and the deceased had cordial relationship.
P.W.16 is the son of P.W.13 and he has stated that
on the date of occurrence, while he was in his house, he heard a
sound 'DAKATAR MOTE MARI DEUCHI MOTE BANCHA BANCHA'
JCRLA No.21 of 2010 Page 27 of 36
and on hearing the shout, he along with his father (P.W.13)
came outside and proceeded towards the direction from where
the shout was coming and they found that the deceased was
lying on the backside of the house of Chaturbhuja Bhoi and the
appellant was standing near him holding a bamboo lathi affixed
with Trishul (trident) and the appellant was declaring to kill
whosoever dare to come to him. On hearing the same, out of
fear, his father went inside the village and he was witnessing the
incident by concealing himself. He further stated that the
appellant went inside his house, brought a gunny bag with him
and put the dead body of the deceased inside the gunny bag,
tied the face of gunny bag by means of a rope, loaded the same
on the middle of the bicycle and went towards Budhiduguri
jungle. He further stated that he went to the house of Mena Bhoi
(P.W.4) and disclosed him about the incident, who in turn went
to the headman of the village to intimate to the police. He
further stated that on arrival of police, he accompanied the
police and other villagers in search of the deceased and found a
gunny bag inside the Nala of the jungle where the dead body of
the deceased was packed. He further stated that as per the
direction of the police, the said gunny bag was brought to the
village and kept in the rest shed. He further stated that he along
JCRLA No.21 of 2010 Page 28 of 36
with his father and other villagers guarded the dead body of the
deceased throughout the night and on the next day morning, in
presence of Magistrate, inquest over the dead body was
conducted and he is a witness to the inquest report (Ext.2). In
the cross-examination, he has stated that all the brothers of his
father have separated mess and property including houses. He
further stated that the house of the appellant was at a distance
of 15 to 20 cubits from their house and that except the appellant
and the deceased, no one was present at the spot. He further
stated that Trishul, who was affixed in a lathi having about five
feet length.
The contention of the learned counsel for the
appellant that there are discrepancies in the evidence of P.W.13
and P.W.16 is not acceptable. Both P.W.13 and P.W.16, who are
the father and son were in the same house when they heard the
shout of the deceased. P.W.13 heard somebody was calling him
'DADA DADA', whereas P.W.16 stated to have heard the
deceased shouting 'DAKTAR MOTE MARI DEUCHHI MOTE
BANCHA BANCHA' (Daktar was killing me. Save me. Save me).
What exactly was heard by the two might be little discrepant,
but as rightly pointed out by the learned State counsel, P.W.13
was aged about sixty years whereas P.W.16 was thirty five
JCRLA No.21 of 2010 Page 29 of 36
years. Therefore, their power of audibility which refers to the
ability of human ear to detect and perceive sounds,
encompassing the range of frequencies and sound levels may be
different. It is a normal phenomena that as people grow older,
their ability to hear, particularly high frequency sounds, declines,
a condition known as presbycusis, affecting communication. It is,
of course, correct that though P.W.16 stated that hearing the
sound of the deceased, he himself and his father (P.W.13) came
out of the house and proceeded towards the place from where
the shout was coming and found the deceased lying dead on the
backside of the house of Chaturbhuja Bhoi, but P.W.13 has not
stated to have proceeded to the spot along with his son
(P.W.16), but both of them noticed the presence of the appellant
in the backside of the house of Chaturbhuja Bhoi where the dead
body of the deceased was lying. The appellant was holding a
lathi as stated by P.W.13 whereas P.W.16 has stated that the
lathi was affixed with Trishul with three heads. When both
P.W.13 and P.W.16 reached at the spot, the appellant threatened
them for which P.W.13 out of fear returned back immediately
whereas P.W.16 remained there concealing himself till the
appellant removed the dead body of the deceased by putting it in
a gunny bag and tying the face of the gunny bag by means of
JCRLA No.21 of 2010 Page 30 of 36
rope and loading it on the cycle, since P.W.16 was present at the
spot for a longer period, he could have noticed that the lathi was
affixed with Trishul which P.W.13 might have missed it because
of his short presence at the spot.
Although there are certain minor discrepancies in the
evidence of P.W.13 and P.W.16, but that by itself is not a ground
to disbelieve the prosecution case and falsify the evidence of
these two witnesses. Law is well settled as held in the case of
Bakhshish Singh -Vrs.- State of Punjab and another
reported in (2013) 12 Supreme Court Cases 187 that minor
inconsistent versions/discrepancies do not necessarily demolish
the entire prosecution story, if it is otherwise found to be
credible. It is pertinent to note that the lathi (M.O.III) which was
found in the hands of the appellant was identified by P.W.13 and
the trident (M.O.IV) was recovered at the instance of the
appellant from the place of concealment and both these weapons
were sent to the doctor (P.W.20), who conducted post mortem
examination and after examining the same, he has specifically
opined that all the injuries detected on the person of the
deceased except injury over the occiput and the injury over
occiput as per his report Ext.9 were possible by trident (M.O.IV)
and bamboo stick (M.O.III) respectively and the query report has
JCRLA No.21 of 2010 Page 31 of 36
been marked as Ext.10. No explanation has been offered by the
appellant regarding his presence near the dead body holding the
weapon and he has simply taken a plea of false implication.
P.W.16 had seen the appellant packing the dead
body in a gunny bag, tying the face of the bag by means of a
rope, loading it in the cycle and going towards Budhiduguri
jungle. Number of witnesses examined by the prosecution
including P.W.17, the constable and P.W.23, A.S.I. of Larambha
Outpost stated about the recovery of a gunny bag lying inside
Budhiduguri Nala in the forest being tied with a rope, which was
brought to the village and kept in the rest house and on opening
the same in presence of the Magistrate, the dead body of the
deceased was recovered and accordingly, inquest was
conducted. Similarly, P.W.13 stated to have disclosed before
P.W.7 regarding the appellant killing the deceased and P.W.7
also supported the same. P.W.16 also disclosed about the
commission of crime by the appellant before P.W.4 and P.W.4
also supported the same. The conduct of P.W.13 and P.W.16 in
disclosing about the incident immediately after returning from
the spot before P.W.7 and P.W.4 respectively is relevant under
section 6 of the Evidence Act as res gestae. A statement to be
admissible under section 6 of the Evidence Act, must be
JCRLA No.21 of 2010 Page 32 of 36
substantially contemporaneous with the fact i.e. made either
during or immediately before or after the occurrence. To form a
particular statement as part of the same transaction, utterance
must be simultaneous with the incident, or soon after it so as to
make it reasonably certain that the speaker is still under stress
of excitement in respect of the transaction in question. This
statement made by P.W.13 before P.W.7 so also P.W.16 before
P.W.4 lends very important corroboration to the other evidence,
in support of the culpability of the appellant. P.W.13 is not
interested in either side, in other words, he is the brother of the
deceased as well as the appellant so also P.W.16 who is closely
related to both the appellant and the deceased and therefore,
their versions deserve to be acted upon particularly when it is
getting corroboration from the medical evidence.
The submission of the learned counsel for the
appellant that the presence of the appellant at the spot, after
committing the crime till the arrival of P.W.13 and P.W.16, is a
doubtful feature, cannot be accepted. Reaction of an accused
after committing the crime may vary from person to person and
in the case in hand, the appellant remained at the spot and
made every effort to cause disappearance of evidence by packing
the dead body in the gunny bag and shifting the same inside the
JCRLA No.21 of 2010 Page 33 of 36
jungle in a cycle as stated by P.W.16. Therefore, his presence at
the spot after committing the crime seems to be for a particular
purpose i.e. to cause disappearance of evidence from the scene
of crime and in the meantime he could got noticed by P.W.13
and P.W.16.
As rightly pointed out by the learned counsel for the
State that whatever the deceased shouted after being assaulted
by the appellant as deposed to by P.W.16 that he was being
killed by the appellant and further shouted to save him, can
certainly be relied upon as dying declaration of the deceased.
The dying declaration is a substantive evidence only for the
reason that a person in acute agony is not expected to tell a lie
and in all probability, it is expected from such person to disclose
the truth and an order of conviction can be safely recorded on
the basis of dying declaration, if the Court is fully satisfied that
the declaration made by the deceased was voluntary, true and
reliable and in such case, no further corroboration can be
insisted. Dying declaration need not be addressed to a particular
individual and we find there is no suspicious feature in such
evidence in the case in hand and there is no infirmity in it.
P.W.4 has stated that a fortnight prior to the
incident, there was altercation between the appellant and the
JCRLA No.21 of 2010 Page 34 of 36
deceased relating to a mango tree which situated near the house
of the appellant, but falling to the share of the deceased. The
submission of the learned counsel for the appellant that there is
no motive on the part of the appellant, cannot be accepted.
Even though the bamboo stick (M.O.III) which was
found from the house of the appellant was containing blood but
its origin could not be found out and even though no blood was
found in the trident (M.O.IV), but in view of sufficient evidence
available on record regarding the culpability of the appellant
particularly that of P.W.13 and P.W.16 and the medical evidence,
we are of the view that the learned trial Court has rightly found
the appellant guilty of the offences charged.
Conclusion:
10. In view of the foregoing discussions, we are of the
view that the conviction of the appellant under sections 302 and
201 of the I.P.C. is quite justified and the sentence imposed
thereunder by the learned trial Court is also proper and justified
and we find no illegality or infirmity to interfere with the same.
Accordingly, the impugned judgment of the learned
trial Court stands confirmed.
In the result, the JCRLA stands dismissed.
JCRLA No.21 of 2010 Page 35 of 36
The trial Court records with a copy of this judgment
be sent down to the learned Court concerned forthwith for
information and compliance.
Before parting with the case, we would like to put on
record our appreciation for Mr. Radharaman Das Nayak,
Advocate for the appellant for rendering his valuable help and
assistance towards arriving at the decision above mentioned.
This Court also appreciates the valuable help and assistance
provided by Mr. Jateswar Nayak, Addl. Govt. Advocate.
,
.................................
S.K. Sahoo, J.
Savitri Ratho, J. I agree.
..................................
Savitri Ratho, J.
Orissa High Court, Cuttack
The 8th April 2025/PKSahoo/RKMishra/Sipun
Location: HIGH COURT OF ORISSA
