Orissa High Court
Samaru Jal vs State Of Odisha on 15 April, 2025
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No. 54 of 2005
(Appeals under section 374 (2) Cr.P.C. arising out of the judgment and
order dated 22.01.2005 passed by Additional Sessions Judge (F.T.C.),
Bolangir in Sessions Case No.70/18/9 of 1997-2004 and Sessions Case
No.30-B/9/10 of 2002-04).
Samaru Jal ...... Appellant
-versus-
State of Odisha ...... Respondent
For Appellant: Ms. Tapaswini Sinha, Advocate
For Respondent: Mr. Sarat Kumar Pradhan
Addl. Standing Counsel
CRLA No. 63 of 2005
Dhruba Charan Sahu ...... Appellant
-versus-
State of Odisha ...... Respondent
For Appellant: Ms. Tapaswini Sinha, Advocate
(Amicus Curiae)
For Respondent: Mr. Sarat Kumar Pradhan
Addl. Standing Counsel
JCRLA No. 54 & CRLA No.63 of 2005 and CRLA No.283 of 2006 Page 1 of 26
CRLA No. 283 of 2006
Padmalochana Dharua ...... Appellant
-versus-
State of Odisha ...... Respondent
For Appellant: Mr. Amiya Kumar Beura
Advocate
For Respondent: Mr. Sarat Kumar Pradhan
Addl. Standing Counsel
---------------
CORAM:
THE HON'BLE MR. JUSTICE S.K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Hearing & Judgment: 15.04.2025
By the Bench
1. The Appellants, namely Samaru Jal (in JCRLA No.54
of 2005), Dhruba Charan Sahu (in CRLA No.63 of 2005) faced
trial in Sessions Case No. 70/18/9 of 1997-2004 and appellant
Padmalochan Dharua (in CRLA No.283 of 2006) faced trial in
Sessions Case No.30-B/9/10 of 2002-04 along with the co-
accused persons namely Kartika Dharua, Makardhwaja Dharua
and Ganeswar Dharua in the Court of the learned Additional
Sessions Judge (F.T.C), Bolangir for offences punishable under
sections 302/34 and 120-B/34 of the Indian Penal Code
(hereinafter „IPC‟) on the accusation that on 11.11.1996 at about
6.00 a.m. in village Sujia under Loisingha P.S. of district
Bolangir, they committed murder of one Swapneswar Sahu
(hereinafter „the deceased‟) in furtherance of their common
intention and they had also hatched out criminal conspiracy to
commit such crime of murder.
The learned trial Court, vide impugned judgment and
order dated 22.01.2005, though acquitted the co-accused
persons namely Kartika Dharua, Makardhwaja Dharua and
Ganeswar Dharua of all the charges and the three appellants of
the charge under section 120-B/34 of IPC, but found them guilty
under section 302/34 of IPC and sentenced each of them to
undergo rigorous imprisonment for life.
2. The prosecution case, as reveals from the F.I.R. and
case record, is that one Chudamani Sahu (P.W.6) presented a
report on 11.11.1996 before the Officer-in-Charge of Loisingha
P.S., informing that on the very day, at about 7.00 a.m. while he
along with his paternal uncle Harish Chandra Sahu was sitting
on the veranda of their house and engaged in gossip, Keshaba
Bhoi (P.W.1) of their village informed them that someone was
screaming for help in their field. Hearing the same from him,
P.W.6 along with P.Ws.1 & 4 rushed to the field and found the
deceased was lying dead with severe bleeding injuries and a
sword and a spear („Barchha‟) had been pierced in his body and
Budhibanta Sahu (P.W.5), who is the grandson of the informant
(P.W.6) was present there. Budhibanta (P.W.5) disclosed before
P.W.6 that at about 6.00 a.m. on that day, while he along with
his father (the deceased) were coming to the field, on the way
near the canal, he (P.W.5) went to attend call of nature and the
deceased went ahead towards the field to collect some flowers.
After a while P.W.5 heard the outcry of the deceased and
immediately rushed towards the place from where he heard the
voice coming and he saw the deceased was being assaulted by
the appellant Samaru Jal with a „Barchha‟ which he pierced in
the abdomen of the deceased and appellant Padmalochan
Dharua assaulted the deceased by means of a sword on the
shoulder as well as on the neck of the deceased, for which the
deceased died. Appellant Dhruba Charan Sahu was also present
at the spot and he was instigating and inciting the other two
appellants namely Samaru Jal and Padmalochan Dharua to kill
the deceased. After committing the murder of the deceased, the
appellants left the spot. It is further stated in the report that,
since 1944 there was civil dispute between the deceased and
appellant Dhruba Sahu and several cases had been instituted and
for the aforesaid dispute, the appellant Dhruba Sahu along with
the appellants Samaru Jal and Padmalochan Dharua entered into
conspiracy and committed the murder of the deceased.
3. On the basis of such report, Loisingha P.S. Case No.95
dated 11.11.1996 was registered under section 302/34 o IPC by
P.W.9, the Officer-in-Charge of Loisingha P.S., who himself
took up the investigation of the case.
During the course of investigation, the I.O. (P.W.9)
examined the witnesses, visited the spot, prepared the spot map
(Ext.11), seized some incriminating material objects from the
spot as per the seizure list (Ext.2), held inquest over the dead
body of the deceased and prepared the inquest report (Ext.1),
sent the dead body to the District Headquarters Hospital,
Bolangir for post mortem examination, seized the sample earth
and blood-stained earth from the spot, as per the seizure list
(Ext.3). On 12.11.1996 he seized the command certificate, the
wearing apparels of the deceased so also the weapons which
were found stabbed/pierced on the body of the deceased, on
being produced by the escorted constable under seizure list
(Ext.7). On 13.11.1996 the appellants Samaru Jal and Dhruba
Sahu were arrested and forwarded to the Court. The I.O.
received the post mortem report and also received the opinion
report relating to the possibility of the injuries sustained by the
deceased by the weapons seized, sent the exhibits to the
R.F.S.L., Ainthapali through the J.M.F.C., Loisingha for
chemical examination and also received the Chemical
Examination Report and on completion of the investigation, he
submitted charge-sheet against the three appellants namely
Samaru Jal, Dhruba Charan Sahu and Padmalochan Dharua,
showing Padmalochan Dharua as absconder.
4. It appears from the case record that the investigation
was re-opened pursuant to the direction of this Court in O.J.C.
No.5600 of 1997, which was filed by the wife of the deceased
and accordingly, the Crime Branch Police took up the
investigation and submitted charge sheet against three other co-
accused persons namely Kartika Dharua, Makardhwaja Dharua
and Ganeswar Dharua besides the present three appellants who
were charge sheeted earlier. Thereafter, all the sessions cases
were tagged together for analogous hearing.
5. The defence plea of the appellants is one of denial and
it is stated that due to previous party faction in the village and
animosity regarding landed property, they have been falsely
implicated in the case.
6. Learned trial Court, after assessing the evidence on
record, came to hold that there is no evidence to show that there
was any agreement between the persons accused of the murder
committed pursuant to such meeting of mind and there is no
evidence that the accused persons had proceeded to witness
Kalipuja at Loisingha and thereafter killed the deceased and
further held that mere gathering is not enough to prove an
offence of conspiracy in absence of proof of agreement between
the parties and accordingly held that the prosecution has failed
to prove the charge under section 120-B of the IPC against the
accused persons. Learned trial Court further held that the facts
and circumstances of the case make it clear that the offence had
been committed by the appellants Dhruba Charan Sahu,
Padmalochan Dharua and Samaru Jal in furtherance of their
common intention. The fatal blows by the deadly weapons were
given by Padmalochan Dharua and Samaru Jal and the
mastermind working behind them was none else than the
appellant Dhruba Sahu, and accordingly found the appellants
guilty under section 302/34 of IPC.
However, so far as the other three co-accused persons
are concerned, who were subsequently arrayed as accused in the
case, on the basis of the Crime Branch investigation, the learned
trial Court held that the prosecution has failed to prove the case
under section 302/34 of IPC against them beyond all reasonable
doubt.
7. Ms. Tapaswini Sinha, learned counsel appearing for the
appellant Samaru Jal in JCRLA No. 54 of 2005 is engaged as
Amicus Curiae for the appellant Dhruba Charan Sahu in CRLA
No.63 of 2005. Mr. Amiya Kumar Beura, learned counsel
appeared for appellant Padmalochan Dharua in CRLA No.283
of 2006.
Ms. Sinha, learned counsel contended that the
conviction of the three appellants is based on the solitary
evidence of P.W.5 Budhibanta Sahu, who is none else than the
son of the deceased and he cannot be said to be an absolutely
reliable and truthful witness, in as much as the learned trial
Court has not accepted his versions implicating the three co-
accused persons, as deposed to by him, in connection with the
murder of the deceased. Ms. Sinha, further argued that the
evidence of this interested witness, which has been partly
disbelieved by the learned trial Court, cannot be accepted to
convict the present three appellants too. She further argued that
even though at the initial stage, there was no allegation
whatsoever against the three co-accused persons and the F.I.R.
was lodged only against the present three appellants, the
prosecution developed its case at a later stage and implicated the
three co-accused persons to face the trial who got acquitted of
the charges. According to the Ms. Sinha, the learned counsel,
the informant (P.W.6) has no direct knowledge about the
incident and all that is found narrated in the F.I.R. are the
information fetched to him by P.W.5 and in the F.I.R., there is
nothing that the appellant Dhruba Charan Sahu assaulted the
deceased by means of „Bhujali‟ deposed to by P.W.5 in his
evidence and the only overt act that has been attributed against
the said appellant Dhruba was that he was inciting the assailants
Padmalochan Dharua and Samaru Jal saying them to kill the
deceased and therefore, it is a fit case where benefit of doubt
should be extended in favour of all the appellants.
Mr. Amiya Kumar Beura, learned counsel appearing for
the appellant in CRLA No.283 of 2006 adopted the arguments
advanced by Ms. Sinha, learned counsel.
8. Mr. Sarat Kumar Pradhan, learned Additional Standing
Counsel for the State, on the other hand, supported the
impugned judgment and submitted that even though the
evidence of P.W.5 regarding implication of three co-accused
persons have not been accepted, his evidence relating to the
overt act committed by the three appellants has got ample
corroboration from the other witnesses as well as medical
evidence. The doctor (P.W.8) has noticed not only penetrating
wound caused by means of spear (Barchha) which found
pierced into the abdomen and a Talwar (sword) in the right side
neck but also other incised wounds and opined that the injury
no.(i) and injury no.(ii) are individually sufficient in ordinary
course of nature to cause death. Learned counsel for the State
further submitted that, the role played by appellant Dhruba
Charan Sahu, as stated by P.W.5, to have caused the Bhujali
blow cannot be said to be an exaggerated version merely
because the same did not find place as the initial story
mentioned in the FIR, as the same has been stated by the
witness before the Magistrate recorded U/s. 164 Cr.P.C and
further he having abetted the crime as stated by all the witnesses
in consistence, is equally responsible to share the intention with
the appellants Samaru Jal and Padmalochan Dharua and as such
there is no infirmity or illegality in the impugned judgment and
order of conviction passed by the learned trial Court and hence
all the three appeals deserved to be dismissed.
9. Adverting to the contentions raised by the learned
counsel for the respective parties, the nature of accusation, at
the outset it is incumbent for us to see whether the prosecution
has successfully established that the deceased Swapneswar Sahu
met with a homicidal death.
In this connection, apart from the inquest report
prepared by the I.O. (P.W.9) vide Ext.1, the evidence of the
doctor (P.W.8), who conducted the post-mortem examination
over the dead body of the deceased on 11.11.1996 is very
relevant. P.W.8 has noticed the following external injuries on
the body of the deceased:-
(i) One through and through penetrating wound along with
the „barchha‟ (spear) entered through right side of the
abdomen and coming out on the right-side chest between
4th and 5th ribs, spaces with the tip and back portions
seen outside the body;
(ii) One incised and penetrating wound of size 4" depth, 1
2/3rd inch length and ¼" width along with the bent
„talwar‟ over the right-side neck ½" below the
mandibular angle;
(iii) One incised wound of size 10" length, ½" breadth and 2
½" depth on right side neck;
(iv) One incised wound of size 3" length and ½" breadth and
½" depth on right side neck;
(v) One incised wound of size 5" length; ½" breadth and
1/3rd inch depth over left side neck and back;
(vi) One incised wound of size 3" length; ¼" breadth and ½"
depth on back side chest;
(vii) One chopped wound of oval shape 4" length, 3" breadth
and ½" depth over right deltoid area;
(viii) One incised wound of size 3" length, ½" breadth and
1/3rd inch depth over left shoulder;
(ix) One cut injury of size 4" length, ½" breadth and ½"
width over right skull area.
He has opined that, injury no.(i) was sufficient in the
ordinary course of nature to cause death due to internal bleeding
of about 2 litres of blood. The injury no.(ii) was also sufficient
in the ordinary course of nature to cause spinal shock and death.
All the injuries were ante-mortem in nature. The cause of death
was due to hypovolemic and neurogenic shock as a result of
injuries to the vital organs like lever and spinal cord. The time
since death was within 24 hours of the post-mortem
examination. He proved the post-mortem examination report,
marked Ext.9. He further stated that, on police requisition, he
examined the spear (Barchha) and Talwar (sword) and opined
that the injuries on the body of the deceased could be possible
by such weapons and his opinion has been marked as Ext.10
and the Barchha (spear) has been marked as M.O.-IV and the
Talwar (sword) has been marked as M.O.-V. Nothing has been
elicited in the cross-examination to disbelieve the evidence of
P.W.8. The learned counsel for the Appellants has also not
seriously challenged the evidence of P.W.8.
Considering the submissions made by the learned
counsel for the parties, the inquest report (Ext.1), evidence of
the doctor (P.W.8) and the post-mortem report (Ext.9), we are
of the view that the findings recorded by the learned trial Court
that the deceased met with a homicidal death, is quite justified.
10. Now coming to the evidence of the witnesses to
examine the culpability of the appellants, admittedly the entire
prosecution case hinges on the solitary evidence of eye-witness
P.W.5. Therefore, the acceptability of the evidence of the
testimony of P.W.5 requires a close scrutiny. Law is well
settled that, in order to act upon the evidence of a solitary
witness, the evidence must be truthful, clear, cogent and above
the board.
However, having regard to the arguments advanced by
the learned counsel for the respective parties, it is incumbent to
deal with the testimonies of the relevant witnesses for better
appreciation of the case including that of P.W.5.
P.W.1 Keshaba Bhoi in his evidence on oath deposed
that around five years ago, on a Monday morning, while he was
on his way to the village tank to attend to the call of nature, he
heard a commotion. From the noise, he understood it was
Budhibanta (P.W.5), the son of the deceased, crying.
Proceeding towards the house of the deceased, he saw
Chudamani Sahu (P.W.6) and Harish Chandra Sahu conversing
in front of Chudamani‟s house. Upon asking them about the
deceased‟s whereabouts and informing them about the cries of
P.W.5, P.W.1 along with P.W.6 and later Kunja Bhoi (P.W.4),
proceeded towards the tank. At the spot, they met P.W.5, who
informed them that Makardhwaja Dharua and 4-5 others had
killed his father. The group then went to the location adjoining
the threshing floor of P.W.6 and found the deceased‟s body
with visible bleeding injuries. A spear was found pierced from
the right to the left side of the chest and a sword was stuck into
the back of the neck. On being asked by P.W.6, P.W.5
disclosed that Makardhwaja Dharua assaulted his father with a
tangia, Padmabhusan Dharua with a sword, Dhruba Charan
Sahu with a bhujali, and Kartika Dharua and Ganeswar Dharua
with lathis. After this, P.W.6 went to Loisingha Police Station
to report the matter, following which the police came to
investigate.
P.W.2 Kishore Kumar Sahu, son of Chudamani Sahu
(P.W.6) is a seizure and inquest witness who stated that he
knew all the accused, including Ganesh Dharua. On
11.11.1996, a Monday morning in between 6 a.m. to 7 a.m.,
while he was repairing his bullock cart near his cowshed, his
father‟s elder brother, Harishchandra Sahu, informed him that
Budhibanta Sahu (P.W.5) was crying in his land. On his way
there, P.W.2 found the deceased was lying dead near the
western side of their threshing floor. The body was positioned
with the head to the north and feet to the south. A spear had
pierced the deceased‟s belly from the right side and touched the
ground on the left side. A sword was stuck to the right side of
the neck, and there were bleeding injuries on the head and other
parts of the body. When they called P.W.5 and asked about the
incident, P.W.5 told them that while he and his father were
heading to their land, he had stopped to relieve himself. His
father went ahead alone. Shortly after, P.W.5 heard his father
shouting, "Dhaunre Budhibanta, mari gali, mari gali." He ran
towards the voice and from behind a semal tree, he saw
Makardhwaja Dharua attacked his father with a tangi, Samaru
Jal assaulted his father with a spear, Dhruba Charan Sahu with a
bhujali, Padmalochan Dharua with a sword and Kartika Dharua
and Ganeswar Dharua with lathis. When P.W.5 cried out for
help, all the accused persons chased to assault him for which he
ran to the village, and the accused persons left thereafter. P.W.2
also deposed that Kunjabihari Bhoi (P.W.4) then revealed to
them that on the night before, while he had stepped out to wash
after dinner, he saw Samaru Jal, Dhruba Sahu, Kartika Dharua,
Ganeswar Dharua, and Padmalochan Dharua going into
Makardhwaja‟s house. Later that night, Kunjabihari (P.W.4)
overheard Makardhwaja saying that they would go to Loisingha
the next morning to kill the deceased. P.W.2 stated that his
father, Chudamani (P.W.6), went to Loisingha Police Station to
report the incident. Around 8 a.m. on the same day, the Officer-
in-Charge visited the scene, and P.W.2 came to know from the
villagers that five individuals from the village were taken by the
police. He further stated that 2-3 years before the incident,
there was a quarrel between the deceased and Makardhwaja
over a lease of the tank for pisciculture. About two months prior
to the murder, Makardhwaja‟s wife had died and he suspected
that the deceased had caused it through witchcraft. There was
also a long standing land dispute between Kishore‟s family and
that of Dhruba, dating back to his grandfather‟s time. He
confirmed that the deceased was his agnatic brother.
P.W.3 Rabi Chandra Pradhan, inquest witness,
deposed that he knew the accused Makardhwaja Dharua and
Dhruba Sahu. Around five years ago, in the month of Kartika
on a Monday morning in between 6 a.m. to 7 a.m., he heard
about the killing of the deceased in his land. Upon reaching
Chudamani Sahu‟s house, he saw the deceased with a spear
pierced through the belly from the right side to the left, the shaft
touching the ground. A sword was also stuck into the right side
of the deceased‟s neck. There were bleeding injuries on the
head and other parts of the body. Upon inquiry, Budhibanta
(P.W.5) narrated the incident.
P.W.4, Kunja Bihari Bhoi stated that on the night
before the incident, while he stepped outside to wash up after
dinner, he saw Samaru Jal, Dhruba Sahu, Kartika Dharua,
Ganeswar Dharua, and Padmalochan Dharua entering
Makardhwaja‟s house. Later that night, upon going outside
again to attend call of nature, he overheard Makardhwaja saying
that they would go to Loisingha on the next day and kill the
deceased, after which everyone left. The next morning, while
on his way to the deceased‟s house, he met Chudamani (P.W.6),
who told him that he had heard Budhibanta (P.W.5) shouting.
They proceeded together to the tank, where they found P.W.5,
who informed them that Makardhwaja Dharua and 4-5 others
had killed his father. Along with P.W.5, they went to the place
near the threshing floor of P.W.6 and found the deceased‟s
body with bleeding injuries. A spear had pierced the chest from
right to left, and a sword was stuck at the back of the neck.
Thereafter, P.W.6 went to Laisingha Police Station to report the
matter. The police arrived at the village and took all the
accused, except Padmalochan, to the station. P.W.4 further
stated that he accompanied P.W.6 to the police station, where
the police asked P.W.6 to submit a written report. When P.W.6
expressed his inability to write due to being emotionally
disturbed, the police presented a written report and threatened
him into signing it.
P.W.6 Chudamani Sahu, deposed that in the early
morning of 11.11.1996, while he was talking with his elder
brother Harishchandra Sahu on the veranda of their house,
Keshaba Bhoi (P.W.1) of their village came running from the
direction of the village tank. P.W.1 inquired whether
Budhibanta (P.W.5) and Sapneswar (the deceased) were at
home, to which P.W.6 replied that they had gone to their land.
P.W.1 then informed them that he heard P.W.5 crying near the
land. P.W.6 joined others to proceed towards the land. On the
way, near the canal bridge, they encountered P.W.5, who was
crying as he came from the land. On being asked, P.W.5
informed them that his father had been killed. When P.W.6
further asked who was responsible, P.W.5 named five
individuals along with the accused Makardhwaja Dharua as the
perpetrators. Thereafter, P.W.6 along with P.W.1, P.W.4 and
P.W.5 proceeded to the spot. Upon reaching the threshing floor
belonging to P.W.6, they found the deceased was lying dead
with bleeding injuries. A spear was pierced through the belly of
the deceased, and a sword was stuck into his neck. Near the
body, a toothbrush, a tongue cleaner, some flowers, and tulsi
leaves were found. On being asked about the incident, P.W.5
narrated the entire occurrence, stating that while he was on his
way to the land with his father, he had gone aside to attend to
the call of nature and during that time, he heard his father
shouting, "Budhibanta Budhibanta, mari gali mari gali" and
then saw from behind a semal tree that Makardhwaja Dharua
assaulted his father with an axe, Samaru Jal assaulted by means
of with a spear, Padmalochan Dharua with a sword, Dhruba
Charan Sahu with a bhujali, and Kartika Dharua and Ganeswar
Dharua with lathis. Upon raising a hulla, the accused persons
rushed towards him to assault and chased causing him to flee in
fear towards the village and that on the way, he met P.W.6 and
others and recounted the incident. P.W.4 also disclosed that on
the previous night, he had seen Samaru Jal, Dhruba Sahu,
Kartika Dharua, Ganeswar Dharua, and Padmalochan Dharua
entering the house of Makardhwaja Dharua. Later that night,
when he stepped outside again, he overheard Makardhwaja
saying that they would go to Loisingha to witness Kali Puja,
take dinner at the house of his elder brother, and then kill the
deceased. Kunja further added that he had seen all the accused
persons coming out of Makardhwaja‟s house and had earlier
informed the deceased about their threats. However, since it
was night, he decided to report the incident to the deceased in
the following morning. P.W.6 then went to Loisingha P.S. and
verbally reported the incident to the Officer-in-Charge (OIC).
He then accompanied the police back to the spot, where the
police examined the witnesses and assigned two constables to
guard the body. The police informed him they would return to
the village. Subsequently, P.W.6, along with P.W.4, went back
to the police station. There, the OIC arrived with all the accused
persons except Padmalochan Dharua and asked P.W.6 to submit
a written report. When he informed the police that he was
feeling unwell and could not write due to emotional distress and
dizziness, the police prepared a written report and asked him to
sign it. The contents of the document were not read out or
explained to him. P.W.6 further stated that 2-3 days after the
occurrence, the police released the accused Makardhwaja,
Kartika, and Ganeswar, while keeping Dhruba and Samaru Jal
in custody. Due to suspicions regarding improper investigation
by the Loisingha police, the deceased‟s wife filed a complaint
with higher authorities and the District Collector. When no
action followed, a case was filed before the High Court. He
clarified that the report marked as Ext.4 was not drafted based
on his verbal statement given to the OIC. In his cross-
examination, P.W.6 remained consistent with his examination-
in-chief and elaborated further on what he had already stated.
Nothing has been brought out in the cross-examination
of P.Ws.1, 2, 3, 4 and 6 to disbelieve their evidence.
11. As seen from the evidence, the witnesses are consistent
in their statements with regard to the factum of incident, nature
and place of injuries seen by each of them sustained by the
deceased, the weapon used in the commission of crime besides
the spot of incident. It is also consistent that P.W.5 narrated the
incident before them in great detail and there is absolutely no
anomaly thereto. The incisive cross examinations faced by the
witnesses have not been able to demolish their testimonies.
Hence, the evidence of the post-occurrence witnesses, whose
version are the basis of the version of P.W.5, goes
uncontroverted save and except that of the discrepancies pointed
out by the learned counsel for the appellants vis-à-vis nature of
culpability of the appellant Dhruba Charan Sahu.
12. P.W.5 Budhibanta Sahu, the son of the deceased, being
the sole eye witness to the occurrence, deposed that on the day
of the occurrence, while he was going towards their land with
his father (deceased), he stopped on the way to attend to the call
of nature and his father proceeded alone. Shortly after, he heard
his father shouting, "Budhibanta Budhibanta, mari gali mari
gali." He further stated to have immediately ran in the direction
of the cries and from behind a semal tree, he witnessed the
accused Makardhwaja Dharua assaulting his father with an axe,
Samaru pierced a spear on his body, Padmaochan assaulted him
with a sword, accused Dhruba assaulted with a bhujali, accused
Ganeswar and Kartika assaulted with lathis to his father. Upon
seeing this, when he raised a hulla to call for help, the accused
persons chased to assault him. Out of fear, he ran away to the
village. On the way, he met Chudamani Sahu (his father‟s
uncle) (P.W.6) along with Kunja Bhoi (P.W.4) and Keshaba
Bhoi (P.W.1) near the canal and informed them about the
incident. Thereafter, the group returned to the spot and found
the deceased lying with multiple bleeding injuries. A spear was
pierced through his chest from the right side to the left armpit
and a sword was stuck into the back of his neck. On being
asked again by P.W.6 about the incident, P.W.5 reiterated the
sequence of events. At that point, P.W.4 (Kunja Bhoi) also
recounted his part, stating that he had overheard Makardhwaja
Dharua on the previous night talking about killing the deceased
along with others, but due to fear, he had not informed the
family. P.W.5 further stated that by the time of the incident, the
accused Makardhwaja was not on good terms with his father.
About two months before the incident, Makardhwaja‟s wife had
died and he believed that the deceased had caused her death
through witchcraft, vowing to kill him in return. P.W.5 came to
know about this only 3-4 days prior to the occurrence through
P.W.4. He also stated that on 11.11.1996, the police seized from
the spot three pairs of chappals, three empty liquor bottles, one
napkin belonging to his father and M.O.-IV and M.O.-V along
with one pair of his father‟s chappals.
13. The learned trial court, taking into account the fact that
the initial version of P.W.5 made before the informant (P.W.6)
was only with respect to the three appellants and the evidence
implicating the three co-accused persons namely Kartik Dharua,
Makardhwaja and Ganeswar Dharua being an improvement in
the case of the prosecution to rope in the persons in animosity
were not accepted and accordingly, they were acquitted of all the
charges.
14. So far as the appellants namely Samaru Jal and
Padmalochan Dharua are concerned, we find that not only the
evidence of P.W.5 is consistent in that respect, but such
statements was disclosed by P.W.5 before P.W.6 (the informant)
and others as corroborated about their complicity in the crime, in
terms of assault on the deceased, as finds place in the F.I.R. So
far as the appellant Dhruba Charan Sahu is concerned, though in
the Court, P.W.5 stated that the said appellant also assaulted the
deceased by means of Bhujali, the same was not disclosed by
him before P.W.6 at the first instance. The only overt act
attributed against the appellant Dhruba Charan Sahu was that he
instigated the other two appellants namely Samaru Jal and
Padmalochan Dharua at the time of commission of the crime to
kill the deceased. Therefore, the evidence attributing assault
made by appellant Dhruba Charan Sahu by means of bhujali
appears not only to be inconsistent, but also discrepant to the
material particular.
15. Be it so, keeping in view the totality of the evidence
adduced by P.W.5, the solitary witness even though, he
implicated the three co-accused persons in the assault of the
deceased, which was not accepted by the learned trial Court, but
the same cannot be a ground to disbelieve the evidence of P.W.5
in its entirety. No doubt, he is the son of the deceased and the
appellants had dispute with the deceased, but being a close
relation, he would be the last to screen the real culprit and
falsely implicate an innocent person.
The principle of falsus in Uno falsus in omnibus (false
in one thing, false in everything) is not tenable. Even if a
portion of evidence is found to be deficient, in case residue is
sufficient to prove the guilt of an accused, notwithstanding
acquittal of number of other co-accused persons, his conviction
can be maintained. In the given circumstances, it is the duty of
the Court to put the evidence to scrutiny and where it is found
that the grains and chaffs are mixed, it is incumbent upon the
Court to separate the grains from the chaffs and, if material
corroboration is available to the evidence of the witness, free
from embellishment, the same can be acted upon. Falsity of
material particular would not ruin it from the beginning to the
end. Merely because in some respects, the Court considers the
evidence of a witness to be insufficient for placing reliance, it
does not necessarily follow as a matter of law that it must be
disregarded in all respect as well.
In the instant case, as discussed, the evidence brought
through P.W.5 connecting the two appellants being absolutely
aligned to the material particular in all respect, the role
attributed by P.W.5 against appellants Samaru Jal and
Padmalochan Dharua right from the beginning as narrated
before P.W.6 and stated before the police, before the Magistrate
in his statement recorded under Section 164 Cr.P.C. so also in
the Court is not only consistent but also gets corroboration from
the medical evidence as adduced by the doctor (P.W.8) and
therefore, we have no hesitation to agree that the view taken by
the learned trial Court in holding the two appellants, i.e. Samaru
Jal and Padmalochan Dharua guilty of the offence under section
302/34 of IPC is just and proper.
16. So far as appellant Dhruba Charan Sahu is concerned,
since the overt act attributed against him is materially discrepant
in nature and it has gone from the stage of mere abettor of the
crime to the direct assailant of the decaesed, it would be very
risky to come to a finding that the prosecution has proved its
case beyond all reasonable doubt against him and therefore, he
is entitled to get the benefit of doubt.
Accordingly, the impugned judgment and order of
conviction of appellant Dhruba Charan Sahu under section
302/34 of IPC is not sustainable in the eyes of law and the same
is hereby set aside and he is acquitted of such charge extending
benefit of doubt. He is discharged from the bail bond.
17. The impugned judgment and order of conviction of the
appellants Samaru Jal and Padmalochan Dharua under section
302/34 of IPC and the sentences passed thereunder stands
confirmed.
18. As it appears from the record, both the appellants
namely Samaru Jal and Padmalochan Dharua are on bail. They
are directed to surrender forthwith before the learned trial Court,
failing which the learned trial Court shall take immediate steps
for their arrest and remanding them to jail custody to serve the
sentence.
19. In the result, CRLA No.63 of 2005 is allowed and
JCRLA No.54 of 2005 and CRLA No.283 of 2006 are
dismissed.
20. Before parting with the case, we would like to put on
record our appreciation to Miss Tapaswini Sinha, learned
counsel, who has been engaged as Amicus Curiae for the
appellant Dhruba Charan Sahu in rendering her valuable help
and assistance towards arriving at the decision above
mentioned. She shall be paid a sum of Rs.10,000/- (Rupees Ten
Thousand) by the High Court Legal Aid Services Committee.
This Court also appreciates the valuable help and assistance
provided by Mr. S.K. Pradhan, learned Addl. Standing Counsel
for the State. A copy of this judgment be sent to the concerned
Court forthwith for information and necessary compliance.
(S.K. Sahoo)
Judge
(Chittaranjan Dash)
Judge
th Designation: ADR-cum-Addl. Principal Secretary
The 15 day of April 2025 Reason: Authentic Copy
S.K. Parida, ADR-cum-APS Location: ORISSA HIGH COURT, CUTTACK
Date: 30-Apr-2025 16:02:28
