Orissa High Court
Dusmanta Sethy vs State Of Orissa on 13 February, 2020
Equivalent citations: AIRONLINE 2020 ORI 214
Author: A.K. Mishra
Bench: S.K. Mishra, A.K. Mishra
ORISSA HIGH COURT: CUTTACK
JCRLA No. 1 OF 2017
(From the judgment and order dtd. 19.12.2006 passed by Shri A.C. Behera, Adhoc
Addl. Sessions Judge (F.T.), Champua in S.T. Case No.2/4 of 2006.)
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Dusmanta Sethy ...... Appellant
-Versus-
State of Orissa ...... Respondent
For Appellant :Mr. Chittaranjan Sahu.
For Respondent : Mrs. Saswata Pattanaik (Addl. Govt. Advocate)
P R E S E N T :-
THE HONOURABLE MR. JUSTICE S.K. MISHRA
AND
THE HONOURABLE DR. JUSTICE A.K. MISHRA
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Date of hearing & Judgment - 13.02.2020
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Dr. A.K. Mishra, J. This is an appeal U/s.383 of the Cr.P.C. preferred
by the appellant-convict against the conviction U/s.302 of the Indian
Penal Code ( in short „the I.P.C.‟) and sentence to undergo rigorous
imprisonment for life and to pay a fine of Rs.10,000/- (Rupees Ten
Thousand), in default to undergo rigorous imprisonment for 3 (three)
years vide judgment passed in S.T. Case No.2/4 of 2006 dated
19.12.2006 passed by the learned Adhoc Addl. Sessions Judge,
Champua, Keonjhar.
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2. Prosecution case, in short, is that on 1.8.2005 at about 6
P.M. in village Roida Camp, the accused dealt „Dauli‟ blows to the
deceased causing bleeding injuries. The informant-son along with
others on being informed took the deceased to hospital but he was
declared dead. On that night written F.I.R. was lodged resulting
registration of Barbil P.S. Case No.174 dated 2.8.2005. Investigation
was ensued. The accused was found in the village. He was arrested
with „Dauli‟ and one knife. The inquest over the dead body was made.
Post-mortem (vide Ext.6) was conducted by Dr. N. Mahunta, he was
expired on 23.08.2005. P.W.8-Dr. A.K. Dash gave opinion that the
injuries found could be caused by the seized "Dauli". The Investigating
Officer had sent all those seized articles including that "Dauli" for
Chemical Examination to S.F.S.L., Rasulgarh under Ext.13 but no
report was exhibited. The statement of one independent witness-P.W.7
was recorded U/s.164 of the Cr.P.C. vide Ext-5 being sponsored by the
Investigating Officer. After completion of investigation, P.W.9-
Investigating Officer submitted charge-sheet. Basing upon which
cognizance was taken by the learned JMFC, Barbil. The case was
committed to the Court of Session. Accused faced trial for offence under
Section 302 of the I.P.C.
In the trial, the accused took the plea of denial as well as
insanity U/s. 84 of the IPC. The prosecution examined nine witnesses
in all. Defence examined none. P.W.1 is the informant whose brother
and mother are P.W.3 and P.W.6. P.W.4 is the witness to the seizure
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and inquest. P.W.5 is a witness to the seizure. P.W.2, a post-occurrence
witness, is declared hostile. P.W.7 is an eye-witness. P.W.8 as stated
above a Doctor who has not conducted post-mortem but proved the
port-mortem report-Ext.6. P.W.9 is the Investigating Officer. The F.I.R.,
Inquest Report, Spot Map, statement U/s.164 of Cr.P.C. etc. are
exhibited vide Exts.1 to 12. But what is not exhibited is the report of
the Chemical Examination from S.F.S.L. The seized weapon of offence
„Dauli‟ was also not produced during trial.
Learned trial court concluded that the death of the
deceased was homicidal in nature and the plea of insanity was not
acceptable for want of medical evidence. He believed the eyewitness-
P.W.7 and convicted and sentenced the accused supra.
3. Learned counsel for the appellant Mr. C. Sahu would
buttress the following submissions:-
i. The sole eye-witness-P.W.7 is not reliable as the medical evidence
disclosing six incised injuries is contradictory to ocular evidence
that the accused dealt three blows.
ii. When the medical evidence is contradictory to the ocular
testimony, the non-production of the seized weapon of offence
and Chemical Examination Report creates doubt about the real
perpetrator of the murder.
iii. The conduct of the accused that he was wandering with a „Dauli‟
and did not flee away after commission of crime is sufficient to
hold that accused was an insane and is entitled to be given the
benefit of doubt.
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Learned Addl. Govt. Advocate, Mrs. S. Pattanaik does not
dispute the fact that weapon of offence is not produced in the
court. She fairly submits that for the discrepancy with the medical
evidence with ocular testimonies, the ocular testimonies of P.W.7
should be given primacy and no interference is called for.
4. We carefully perused the materials on record. the case is
based upon the evidence of the sole eye-witness-P.W.7. He has
categorically stated that prior to the occurrence the accused was
moving in front of the house on road by holding „Dauli‟. He requested
him to hand over „Dauli‟ as children were fearing. The accused told him
that he would not assault anybody. By then the deceased came on that
way and accused obstructed him and dealt one blow to the backside of
neck. The deceased fell down. Thereafter, the accused gave another two
blows. While the deceased was lying on the ground being dead, the
accused was moving there holding the „Dauli‟ and thereafter one Durga
Oram (not examined) came and called the accused towards the hotel.
This witness has also disclosed that he was apprehending that as
accused was mad previously and the accused had no dispute with
anybody. He has admitted to have given statement U/s.164 of Cr.P.C.
vide Ext.5.
If this evidence of sole eye-witness is compared with the
medical evidence, it will be found that as per the post-mortem report-
Ext.6, the Doctor found 7 injuries including 6 incised wounds. The
other injury is one abrasion on the right shoulder. The post-mortem
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report was proved by Doctor-P.W.8, who has not conducted post-
mortem but has given his opinion seeing the weapon offence „Dauli‟ vide
Ext.7 that all the injuries could be possible by that weapon. P.W.8 has
stated that by the time he gave opinion, the weapon of offence was
rusty and blood-stained.
Ext-12, the forwarding report for forensic examination
reveals that one „Dauli‟ and one knife were sent for chemical
examination. The said examination report is not received. When the
medical evidence is contradictory to the ocular testimony advanced by
the sole eye-witness, the non-production of seized weapon and the
examination report as to whether that weapon had contained any blood
stain is potential to make a dent in the credibility of sole eyewitness. In
such circumstance, corroboration is essential to base conviction.
Prosecution has failed to provide any corroboration from any other
source.
4-A. In Vadivelu Thevar Vrs. The State of Madras, AIR (1957)
SC 614, the Hon‟ble Supreme Court has observed as under:-
"On a consideration of the relevant authorities and
the provisions of the Evidence Act, the following
propositions may be safely stated as firmly
established:
(1) As a general rule, a court can and may act on the
testimony of a single witness though uncorroborated.
One credible witness outways the testimony of a
number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute,
courts should not insist on corroboration except in
cases where the nature of the testimony of the single
witness itself requires as a rule of prudence, tat
corroboration should be insisted upon for example, in
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the case of a child witness, or of a witness show
evidence is that of an accomplice or of an analogues
character.
(3) Whether corroboration of the testimony of a single
witness is or is not necessary, must depend upon
facts and circumstances of each case and no general
rule can be laid down in a matter like this a musch
depends upon the judicial discretion of the Judge
before whom the case comes.
In view of these considerations, we have no hesitation
in holding that the contention that in a murder case,
the Court should insist upon plurality of witnesses, is
much loo broadly stated. Section 134 of the Indian
Evidence Act, has categorically laid it down that no
particular number of witnesses shall, in any case, be
required for the proof of any fact‟. The Legislature
determined, as long ago as 1872 presumably after
due consideration of the pros and cons. That, it shall
not be necessary for proof or disproof a fact, to call
any particular number of witnesses."
This Court further observed as under:
"It is not seldom that a crime has been committed in
the presence of only one witness, leaving aside those
cases which are not of uncommon occurrence where
determination of guilty depends entirely on
circumstantial evidence. If the Legislature were to
insist upon plurality of witnesses, cases where the
testimony of a single witness only could e available in
proof of the crime, would go unpunished. It is here
that the discretion of the presiding judge comes into
play. The matter thus must depend upon the
circumstances of each cases and the quality of the
evidence of the single witness whose testimony has to
be either accepted or rejected. If such a testimony is
found by the court to be entirely reliable, there is no
legal impediment to the conviction of the accused
person on such proof. Even as the guilt of an accused
may be proved by the testimony of a single witness,
the innocence of the accused person may be
established on the testimony of the single witness,
even though a considerable number of witnesses may
be forth coming to testify to the truth of the case for
the prosecution."
5. Now descending to facts when the sole eyewitness is not
reliable, the absence of motive creates a doubt. Accused has not
attempted to maintain secrecy, nor acted in a prearranged way.
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The totality of the prosecution evidence reveals that the
charge is not proved beyond reasonable doubt even though the accused
is not given the benefit U/s.84 of the I.P.C. Because of this, we are
unable to sustain the conviction and sentence passed.
In the result, the conviction of the appellant U/s.302 of the
IPC and sentence passed thereon vide judgement dated 19.12.2006 by
the learned Adhoc Addl. Sessions Judge (F.T.), Champua is set aside.
The appellant is set at liberty forthwith from jail unless he
is required in any other case.
Accordingly, the appeal is allowed.
LCR be returned immediately to the lower court.
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Dr. A.K. Mishra, J.
S.K. Mishra, J. I agree.
............................. S.K. Mishra, J.
Oissa High Court, Cuttack, Dated the, 13th February, 2020/RRJena 8