Orissa High Court
Jhituku Paraja vs State Of Odisha on 9 September, 2022
Author: M.S.Sahoo
Bench: S. Talapatra, M.S.Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA NO.61 OF 2014
From the judgment and order dated 12.06.2014 passed by Shri
Prasanna Kumar Hota, Sessions Judge, Koraput at Jeypore in
Criminal Trial No.1 of 2012.
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Jhituku Paraja ........ Appellant
-Versus-
State of Odisha ........ Respondent
For Appellant : Mr. Gourishankar Pani, Advocate
For Respondent : Ms. Saswata Pattanaik, AGA
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE S. TALAPATRA
AND
THE HONOURABLE SHRI JUSTICE M.S. SAHOO
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Date of hearing: 25.07.2022 Date of judgment: 09.09.2022
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M.S.SAHOO, J The appellant, in the present Jail Criminal Appeal,
Jhituku Paraja is aggrieved by the judgment of the learned
Sessions Judge, Koraput at Jeypore dated 12.06.2014 convicting
him for offence punishable U/s.302 of the Indian Penal Code, 1860
( in short 'IPC'), convicted U/ss.235(2) of the Code of Criminal
Procedure, 1973 (Cr.P.C. for short) and sentencing him to undergo
imprisonment for life and to pay a fine of Rs.10,000/- (Rupees Ten
// 2 //
Thousand) only, and in default of payment of fine to undergo
rigorous imprisonment for one year, after completion of criminal
trial No.1/2012 (arising out of G.R. Case No.476/2011,
corresponding to Jeypore Sadar P.S. Case No.113 of 2011
committed by the S.D.J.M., Jeypore).
2. Before the learned Sessions Court, the appellant was the
sole accused. The incident out of which the proceeding arose
occurred on 06.09.2011 at about 11.00 P.M. in Village-
Kadamguda within the jurisdiction of Jeypore Sadar Police Station
in the district of Koraput. The First Information Report ('FIR' for
short) was lodged at about 8.15 A.M. on 07.09.2011. The I.I.C.
Jeypore Sadar P.S., Koraput registered P.S. Case No.113 of 2011
and took up the investigation of the case.
3. The FIR written by one Ghenu Muduli (P.W.5) marked as
Ext.2 before the learned Sessions Court, as per the statement of
the informant-Somanath Pujari, written in Odia. Translated to
English the FIR describes the following:-
"I, Somanath Pujari, S/O- Late Parsu Pujari, resident of
Kadamguda, Police Station-Jeypore Sadar, Dist.- Koraput
giving this written information that my father Parsu Pujari
had brought and broken stones of Jhituku Paraja of our
village, therefore Jhituku Paraja used to always quarrel with
my father. Yesterday, Tuesday (Dt.06.09.2011) night at
about 11 P.M., Jhituku Paraja while quarrelling with my
father regarding the issue of breaking of stones near his
house brought 'tangia' from his house inflicted cuts on my
father's chest and face resulting in lot of bleeding. My father
died immediately there. After seeing the same, me and my
co-villagers Hari Pujari, Sunadhara Pujari and Chakra
Muduli and others ran to Catch hold of Jhituku Paraja but
he ran away in the darkness after throwing the 'tangia' at
the place of occurrence. We searched a lot but could not
Page 2 of 31
// 3 //
find him. This incident has been also seen by the daughter
of the accused, Soshi Paraja and son Suna Paraja. My
father, Parsu Pujari died as Jhituku Paraja of our village
inflicted cut injury on him with a 'tangia'.
Therefore, it is informed the culprit must be caught
and punished."
4. Prosecution alleged that the deceased Parsu Pujari and
accused Jhituku Pujari, both inhabitants of village Kadamguda,
were earning their livelihood by selling small stones after collecting
and breaking bigger pieces of stone. It is alleged, some days prior
to the occurrence the deceased had taken some big stones
collected by the accused, had broken the same into small pieces
and sold them, for which there was a quarrel between them.
On the fateful night, i.e., on 06.09.2011 at about 11.00 P.M.
there was a quarrel between the accused and the deceased, near
the house of the accused relating to the issue of breaking and
selling of stones by the deceased. The accused brought a 'tangia'
from his house and gave blows on the chest and the face of the
deceased that led to severe bleeding injury and the deceased died
at the spot.
5. The prosecution narration further reveals at that time
Somanath Pujari (P.W.2), son of the deceased, informant before the
police, was present at some distance from the spot along with other
co-villagers, namely, Hari Pujari, Sunadhara Pujari (P.W.6) and
Chakra Muduli (P.W.3). They rushed to the spot and chased the
accused. The accused-appellant vanished into darkness after
Page 3 of 31
// 4 //
throwing the weapon of offence : 'Tangia' at the spot and they could
not catch hold of him.
6. It is further narrated that after the FIR was lodged on
07.09.2011, the Inspector-in-charge of Jeypore Sadar Police
Station took up investigation (I.O:P.W.10), examined the
complainant, deputed constable no.659: Shri A.Gada Nayak to the
spot to guard the dead body of the deceased. On the same date, i.e,
on 07.09.2011, the Investigating Officer visited the spot, prepared
a spot map (marked as Ext.9). Inquest on the dead body of the
deceased was held at the spot and inquest report was prepared
(Ext.3). The dead body was dispatched to the Sub Divisional (S.D)
Hospital, Jeypore for post-mortem by issuing a dead body challan
(Ext.10).
7. In continuing the investigation, the I.O. further seized 'tangia'
(M.O.I): the alleged weapon of offence, collected some sample blood
stained earth from the spot, prepared seizure list, (Ext.4). After
arresting the accused, his wearing apparels were seized, i.e., one
full shirt (M.O.II), one lungi (M.O.III) by preparing the seizure list
(Ext.5). After post-mortem examination, the wearing apparels of the
deceased were seized and seizure list was prepared (Ext.1). The
shirt worn by the deceased is marked as (M.O.IV). Lungi of the
deceased is marked as (M.O.V). As stated by the I.O., the accused
was arrested from village "Sandhiguda." The accused was
forwarded to the Court of the Sessions Judge on 15.10.2011. The
nail clippings of the accused were collected, kept in a sealed vial as
Page 4 of 31
// 5 //
per the seizure list Ext.6. The weapon of offence, i.e., 'tangia' was
sent to the Medical Officer, S. D. Hospital, Jeypore with a query in
writing as to whether the injuries found on the dead body of the
deceased can be caused by the said weapon. The written query is
marked as Ext. 8/2. The post-mortem report was received by the
I.O., the MOs were sent to the Deputy Director, Regional Forensic
Science Laboratory (R.F.S.L.), Berhampur through the learned
S.D.J.M., Jeypore by a forwarding letter (Ext.11). The chemical
examination report received from the R.F.S.L. has been marked as
Ext.12. After completion of investigation, charge-sheet against the
accused was submitted.
8. Learned trial court has dealt with evidence of P.Ws.2, 3 and
6 treating them to be the "eye-witnesses to the occurrence." P.W.4
has been treated to be the post occurrence witness and based on
the evidence of the "eye-witnesses", the learned trial court has
found the appellant guilty.
9. The points for determination has been formulated in
paragraph-5 of the judgment and is quoted herein :
"The point for determination in this case:-
Whether the accused on 6.9.2011 night at about 11.00 p.m.
at village-Kadamuguda committed the murder by
intentionally or knowingly causing the death of his co-
villager Parsu Pujari?"
10. Further, the learned trial court has dealt with the
requirement of proving the charge under Section 302 of the I.P.C.
in paragraph-6 of the judgment, which is quoted herein :
Page 5 of 31
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"To establish a charge under Section 302 of the Indian
Penal Code the prosecution must prove:
(i) That the death of a human being caused by a
human being has actually taken place;
(ii) That such death has been caused by or in
consequence of the act of the accused;
(iii) That such act was done with the intention of
caused death, or that it was done with the intention
of causing such bodily injury as (a) the accused
knew to be likely to cause death, or (b) was
sufficient in the ordinary course of nature to cause
death, or that the accused caused death by doing
an act known him to be so imminently dangerous
that it must in all probability cause (a) death, or (b)
such bodily injury as is likely to cause death, the
accused having no excuse for incurring the risk of
causing such death or injury."
11. We heard detailed arguments of Sri Gouri Shankar Pani,
learned counsel for the appellant and Ms. S. Pattnaik, learned
Additional Government Advocate for the State
12. Mr. Pani, learned counsel for the appellant has challenged
the findings of the learned trial court regarding the "eyewitnesses'
version" based on the evidence of P.Ws.2, 3 and 6. The learned
trial court in paragraph-8 (internal page-16) of the judgment has
dealt with the evidence of P.Ws.2, 3 and 6 and has opined :
"... ...In my opinion, the aforesaid evidence of P.Ws.2, 3 &
6 that the accused gave 'tangia' blows on the chest and
face of the deceased is trustworthy, believable and
acceptable."
13. For the aforesaid finding of the learned trial court and the
challenge to the same by the learned counsel for the appellant, we
deem it appropriate to evaluate the same and the statements of
P.W.2, 3 and 6 are quoted herein. P.W.2 in examination-in-chief
has stated:
Page 6 of 31
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"I know the accused. The deceased is my father one year
back Tuesday at 11.00 P.M. night the occurrence took
place. I was talking with Hari, Sunadhar and Chakra on
the road. At that time the accused quarrlled with the
deceased in front of his house for cutting of stone. During
such quarrel the accused assaulted the deceased by
means of an axe. He dealt one blow to his face and another
blow to the chest by axe as a result my deceased father fell
on the ground and sustained bleeding injury and died at
the spot. The accused then left the spot leaving the axe
there. At the time of the incident there was a 'lanthan' in
lighting condition on the verandah of the accused.
13.1. In Cross-examination the statement of P.W.2 is reproduced :
"... ... Hearing hullah of the children of the accused we
went to the spot. By the time I reached the spot my
deceased father was lying on the ground with injuries.
M.O.I was also lying near him by the time I reached there. I
along with other witnesses such as Chakra, Hari and
Sunadhara reached the spot at the same time. In the night
of occurrence, i.e., after the incident we could not meet the
accused. There is no electricity in our village. The incident
took place in front of the house of the accused at a distance
of five feet from the 'lanthan'. The that time the children of
the accused were inside his house. Other villagers came to
the spot after we four reached there."
14. Learned counsel for the appellant argues that if the
statements of P.W.2 in his examination-in-chief and in the cross-
examination are compared, it cannot be said that the statement of
P.W.2 is to be relied on as ocular evidence of the fatal incident as
in examination-in-chief/cross-examination he has not stated that
he saw the accused attacking the deceased.
15. The statement of the next witness presented by prosecution
to be the eye witnesses, in examination-in-chief, i.e., P.W.3-Chakra
Muduli is quoted herein :
"I know the accused. I also know the deceased. On year
and four months back in the night at 11.00 P.M. the
Page 7 of 31
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occurrence took place in front of the house of the accused. I
along with Somanath Pujari, Sunadhar Pujari and Hari
Pujari wer standing on the village road. At that time, the
accused and the deceased quarreled among themselves.
During such quarrel the accused brought an axe from his
house and dealt blows one on the chest and the other one
the forehead of the deceased with that axe. As a result the
deceased sustained bleeding injuries and fell down. He
died at the spot due to such injuries. Then the accused fled
away from the spot throwing that axe there. Immediate we
reached at the spot."
15.1. The statement in the cross-examination of P.W.3 is quoted
herein :
"At the time of such quarrel we did not go to spot to
restraint. At the time of the incident the child of the
accused shouted and hearing such shout we went to the
spot. By the time we reached the spot the deceased was
lying dead. We ascertained from the children of the
accused that the accused killed the deceased."
3... ...
There was a 'Dibiri' light inside the house of the accused
which is a small hut. The light was not sufficient to give
clear vision inside the house. First Somanath went to the
spot and sometimes after we three went there."
It is submitted by the learned counsel that the P.W.3 also
has not stated that he saw the accused attacking the deceased.
16. Learned counsel for the appellant further refers to the
examination-in-chief of the 3rd "eye-witness", P.W.6, presented by
the prosecution as eye-witness before the learned trial court to
point out the discrepancies. The examination-in-chief of P.W.6-
Sunadhar Pujari is reproduced herein:
"I know the accused and the deceased. One year and four
months back in the night at about 11.00 P.M. the occurrence
took place in front of house of the accused. There was dispute
between the accused and the deceased over breaking of the
stone. At the time of occurrence I along with Hari, Somanath
and Chakra were present on the village road and at that time
the accused and the deceased quarreled among themselves.
Page 8 of 31
// 9 //
During such quarrel the accused brought an axe from his
house and assaulted the deceased with that axe on his chest
and head causing bleeding injuries and the deceased fell
down and died at the spot. We immediately rushed to the
spot. The accused fled away from the spot leaving the axe at
the spot."
16.1. The statement of P.W.6 in cross- examination is reproduced
herein :
"... ... We are at a distance of 30 to 40 feet from the
spot at the time of the incident. We did not intervene
when they were quarrelling. Heard the shout of
children of the accused we rushed to the spot. ... ..."
17. It is submitted by the learned counsel for the appellant that
since the learned trial court has relied extensively on the evidence
of P.Ws.2, 3 and 6, the evidence of the said witnesses are to be
closely scrutinized as to whether their statements are sufficient to
prove beyond all reasonable doubts that the accused is the author
of the crime.
18. It is further submitted that apart from P.W.6 in his cross-
examination stating that "... ... I have seen the accused while
assaulting the deceased by an axe. I have seen the accused
bringing an axe from his house. ... ..." The other two so called eye-
witnesses have not indicated in their statements to have seen the
accused while assaulting the deceased by an axe. It is further
submitted that it was a dark night and there was not electricity in
the village, as has been stated by all the three witnesses. It is
submitted that the occurrence took place at 11.00 P.M., therefore,
the source of light that led to seeing of the occurrence by P.Ws.2,
Page 9 of 31
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3 and 6, i.e., attack by the accused-appellant on the deceased has
to be closely scrutinized.
19. To further highlight his contention, the learned counsel for
the appellant refers to the statement of P.W.2 regarding the
source of light "at the time of incident there was a "lanthan' in
lighting condition on the verandah of the accused" and the
occurrence took place outside the house about five feet away.
20. Attention of this Court is drawn to the statement of P.W.3,
P.W.3 in his statement in cross-examination states that "there was
a 'Dibiri' light inside the house of the accused which is a small hut.
The light was not sufficient to give clear vision inside the house."
Further, the learned counsel for the appellant refers to the
statement of P.W.6 in his examination-in-chief as well as cross
that P.W.6 has not referred to any source of light to see the
occurrence, though he has categorically stated that "it was a dark
night and there was no electric light in our village".
It is submitted that "Dibiri" and "Lanthan" (i.e., Hurricane
Lantern) are completely different in their construction and
appearance only thing common being that both are kerosene wick
lamps. It is argued "Dibiri" is a round container with wick (fabric)
lamp with open flame where as "Lanthan" is a flat wick adjustable
lamp with glass cover.
21. To bring out the inconsistencies in the evidence, it is
submitted by the learned counsel for the appellant that all the
three P.Ws-2, 3 and 6 have stated that they were talking together
Page 10 of 31
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on the village road at a distance about 50 to 60 ft. from the place
of occurrence. It is stated by all the three that they went together
to the spot of occurrence, on the said aspect, P.W.2.-Somanath
Pujari in his cross-examination stated that "hearing the hullah of
the children of the accused we went to the spot. By the time I
reached the spot my deceased father was lying on the ground with
the injuries.... I reached there. I along with other witnesses, such as
Chakra, Hari and Sunadhar reached the spot at the same time."
P.W.3-Chakra Mudli; regarding his presence and response to
the situation states that he along with P.Ws.2 and 6, were
standing on the village road, the appellant and deceased quarrelled
among themselves. In cross-examination states "at the time of such
quarrel we did not go to the spot to restrain. At the time of the
incident the children of the accused shouted and hearing such shout
we went to the spot. By the time we reached the spot the deceased
was lying dead. We ascertained from the children of the accused
that the accused killed the deceased."
P.W.6-Sunadhar Pujari; regarding his presence at the spot
of occurrence and being a witness to the fatal incident has stated
that he along with Hari (Not a charge-sheet witness), Somanath
(P.W.2) and Chakra (P.W.3) were present at the village road. They
rushed immediately to the spot. In cross-examination, he has
stated that "we were at a distance of 30 to 40 feet.
22. It is contended by the learned counsel for the appellant that
P.Ws. 2, 3 and 6 presented by the prosecution before the learned
Page 11 of 31
// 12 //
trial court, have been considered by the learned trial court to be
the eye witnesses to the fatal incident being present about 30 to
40/50 to 60 feet from the place of occurrence and also they are
witnesses to the activities of each other in response to the
situation at the spot. It is submitted that as per P.W.6-Sunadhar,
P.W.3-Chakra went to the spot first; as per P.W.3-Chakra, P.W.2-
Somanath went to the spot first and as per P.W.2-Somanath all of
them, i.e., Somanath, Chakra and Sunadhara went to the spot
together, therefore, there is inherent contradictions in the
statements regarding availability of the P.Ws at the spot of
occurrence.
23. It is further contended that P.W.2 stated in his cross-
examination all the P.Ws.2, 3 and 6 hearing hullah of the children
went to the spot. P.W.3 has stated after he went, Sunadhara and
Somanath went to the spot. They ascertained from the children of
the accused that the accused killed the deceased. It is contended
by the learned counsel for the appellant that even the P.Ws on
their own have stated to have ascertained the fact from children of
accused who have not been presented as witnesses.
24. It is contended by the learned counsel for the appellant that
the sequence of events of P.Ws. witnessing the occurrence of
attack by the appellant on the deceased, all of them responding to
the situation and seeing the occurrence, has been differently
narrated by each of P.Ws.2, 3 & 6, which causes doubts and
cannot be relied upon to be the proof beyond all reasonable
Page 12 of 31
// 13 //
doubts, to the extent relied upon by the learned trial court to hold
the appellant guilty.
25. Learned counsel for the appellant has taken us through the
evidence rendered by autopsy surgeon before the court as P.W.9,
he has drawn our attention to the statement of doctor in cross-
examination which is quoted for ready reference :
"....I have not mentioned in the post mortem examination
report that the injuries are ante mortem in nature. I have also
not mentioned in my postmortem examination report that the
nature of death was homicidal in nature. I have not mentioned
in the P.M. examination report that the injures found on the
dead body of the deceased was sufficient to cause death in
ordinary course of nature. ... ..."
26. In view of the significance of the opinion of the autopsy
surgeon, we also perused the Ext.7. P.M. report to find that in fact
the doctor has not mentioned the facts, as noted above, in his
statement in evidence before the learned trial court.
It is submitted by learned counsel for the appellant that not
mentioning regarding "the injuries to be ante mortem in nature" and
"death was homicidal in nature", goes on to affect the very basis of
the prosecution story that the deceased died homicidal death by
injuries inflicted by the accused.
It is submitted by the learned counsel for the appellant that
the conspectus of the facts and evidence presented before the
learned trial court would lead to the conclusion that there are too
many loopholes in the prosecution theory to bring home the guilt
of the accused by the standard of proving to the hilt.
Page 13 of 31
// 14 //
27. Per contra, it is submitted by Ms. S. Pattnaik, learned
Additional Government Advocate that even if P.Ws.2, 3 and 6 have
stated that there was darkness and there is no electricity in the
village, but as it is said, darkness has its own light. It is further
submitted by the learned counsel for the State supporting the
judgment of the learned trial court that the evidence is to be
considered in its totality, the discrepancies that is found in the
statements of P.Ws.2, 3 and 6 are minor discrepancies and this
Court has to go to the core of the evidence which leads to the
conclusion of the guilt of the accused.
27.1. It is further submitted that motive has been clearly
established by the prosecution as all witnesses have stated that
there was a persisting quarrel between the accused and the
deceased prior to the incident regarding breaking of stone by
deceased those were collected by the accused. Therefore, the
motive of the accused attacking the deceased is well proved.
27.2. Referring to the forwarding report (Ext.11) and chemical
examination report (Ext.12), it is submitted by the learned
Additional Government Advocate that the blood stains on the Exts
marked 'B' & 'C', i.e., the wearing apparels of the accused having
blood Group 'O', stain of blood group 'O' on the 'taniga' (axe) and
the stain of blood group on wearing apparels of the deceased, (i.e.,
Exts.D & E) of blood group-'O' points to the guilt of the accused.
27.3. Learned Additional Government Advocate to fortify her
submissions that discrepancy in testimony of the witnesses is not
Page 14 of 31
// 15 //
always fatal to the prosecution case places reliance on the
decision rendered by the Hon'ble Supreme Court in Munshi
Prasad and others v. State of Bihar : (2002) 1 SCC 351,
paragraph-10. The learned Additional Government Advocate refers
to paragraph-10 of the said judgment, which is reproduced
herein:
"10. It is on the above factual score, Mr Venkataramani
strongly contended that the proceedings initiated in the
matter cannot but be ascribed to be a case of blind murder,
which has not been witnessed by any person. It has been
contended that the prosecution story is a fabricated one as
regards the involvement of the accused persons and the
case of blind murder has been converted into one of
involvement of the accused by reason of enmity and hostile
relationship between the family of PW 5, the brother of the
deceased and the accused persons. The enmity aspect will
be dealt with at a later stage in this judgment but presently
it would be convenient t o note the submissions in support
of the appeal as regards the happenings of the event of
blind murder -- the circumstances relied upon are,
however, as follows:
(i) PWs 1 to 5 are supposedly interested witnesses
by reason of the factum that they belong to the same village
and are related to each other. Strong criticism has been
levelled on the evidence of PWs 3, 4 and 5, who claimed to
be eyewitnesses and in a similar vein, criticism has also
been levelled against the evidence of PWs 1 and 2, who
claimed to have heard the shouting fro m a distance of
about 700 to 800 yards. Let us thus analyse the evidence
of the prosecution wit nesses -- records depict that PWs 1
and 2 are independent witnesses, who have stated that
while they were proceeding towards Jagdishpur Market
and when they reached near the place of occurrence, they
saw the appellants running away with dabia in their
hands and it is only on seeing the accused persons running
away with weapons, they came at the place of occurrence
an d saw the dead body of the deceased lying there. It is
this evidence which has been attributed t o be highly
improbable by Mr Venkataramani since they were carrying
a load of about 15 kg of vegetables on their shoulders -- a
rustic villager growing vegetables and selling it to the
market place obviously will carry the load on his shoulders.
Weight of 15 kg may be of some consequence to a
sophisticated city baboo but the same may not be so to a
Page 15 of 31
// 16 //
village peasant or even a trader. The cross-examination of
these two witnesses, though effected extensively, has not
yielded any benefit to the appellants and the evidence
remained totally unshaken and thus worthy of acceptance
by a court of law. The evidence of PWs 3, 4 and 5 stands
thus corroborated by two in dependent witnesses and it is
on the evidence of the other three prosecution witnesses,
the main plank of submission of Mr Venkataramani is that
a contradiction in the evidence is the only merit in the story
made out by the prosecution.
Incidentally, be it noted that while appreciating the
evidence of a witness, minor discrepancies on trivial
matters without affecting the core of the prosecution case,
ought not to prompt the court to reject evidence in its
entirety. If the general tenor of the evidence given by the
witness and the trial court upon appreciation of evidence
forms opinion about the credibility thereof, in the normal
circumstances the appellate court would not be justified to
review it once again without justifiable reasons. It is the
totality of the situation, which has to be taken note of, and
we do not see any justification to pass a contra-note, as
well, on perusal of the evidence on record. In this context
reference may be made to two decisions of this Court. The
first being State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 :
1985 SCC (Cri) 105] as also a later one in the case of Leela
Ram v. State of Haryana [(1999) 9 SCC 525 : 2000 SCC
(Cri) 222] . Needless to record that difference in some minor
detail, which does not otherwise affect the core of the
prosecution case, may be there but that by itself would not
prompt the court to reject the evidence on minor variations
and discrepancies. In Leela Ram [(1999) 9 SCC 525 : 2000
SCC (Cri) 222] this Court observed in para 10 of the Report
: (SCC pp. 532-33)
"10. * * *
'24. When an eyewitness is examined at
length it is quite possible for him to make some
discrepancies. No true witness can possibly escape
from making some discrepant details. Perhaps an
untrue witness who is well tutored can successfully
make his testimony totally non-discrepant. But
courts should bear in mind that it is only when
discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that
the court is justified in jettisoning his evidence. But
too serious a view to be adopted on mere variations
falling in the narration of an incident (either as
between the evidence of two witnesses or as
between two statements of the same witness) is an
unrealistic approach for judicial scrutiny.'
[Emphasis supplied]
Page 16 of 31
// 17 //
28. Learned trial court has relied on Rajwant Singh v. State of
Kerala: AIR 1966 SC 1974; Virsa Singh v. State of Punjab:
AIR 1958 SC 465 and Kalegura Padma Rao and another v.
State of A.P. represented by Public Prosecutor:2007(2) Crimes
217(SC) to hold that "act of the accused resulting the death of the
deceased comes under the purview of Section 300 clause(3) of
Indian Penal Code which amounts to murder and punishable under
Section 302 of the Indian Penal Code. In other words, it can be
safely held beyond reasonable doubt that the accused has
committed the murder of the deceased which is punishable under
Section 302 of the Indian Penal Code."
29. Before adverting to the rival contentions as noted above it
would be profitable to notice the pronouncements of the Hon'ble
Supreme Court regarding approach of a Court in scrutinizing
evidence presented as "eye witness account."
29.1. In Rammi v. State of Madhya Pradesh :1999(8) SCC 649
paragraph-24 relying on Tahasildar Singh v. State of U.P.; AIR
1959 SC 1012.
"24. When an eyewitness is examined at length it is quite
possible for him to make some discrepancies. No true
witness can possibly escape from making some
discrepant details. Perhaps an untrue witness who is well
tutored can successfully make his testimony totally non-
discrepant. But courts should bear in mind that it is only
when discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that the
court is justified in jettisoning his evidence. But too serious
a view to be adopted on mere variations falling in the
narration of an incident (either as between the evidence of
two witnesses or as between two statements of the same
witness) is an unrealistic approach for judicial scrutiny.
Page 17 of 31
// 18 //
29.2. In Sharad Birdhi Chand Sarda v. State of Maharastra :
1984 SCC (4) 116 at paragraphs- 151, 161, 162 & 163 of SCC it
has been held:
"151. It is well settled that the prosecution must stand or
fall on its own legs and it cannot derive any strength from
the weakness of the defence. This is trite law and no
decision has taken a contrary view. What some cases have
held is only this : where various links in a chain are in
themselves complete, then a false plea or a false defence
may be called into aid only to lend assurance to the court. In
other words, before using the additional link it must be
proved that all the links in the chain are complete and do not
suffer from any infirmity. It is not the law that where there is
any infirmity or lacuna in the prosecution case, the same
could be cured or supplied by a false defence or a plea
which is not accepted by a court.
xxx xxx
161. This Court, therefore, has in no way departed from the
five conditions laid down in Hanumant case [AIR 1952 SC
343 : 1952 SCR 1091 : 1953 Cri LJ 129] . Unfortunately,
however, the High Court also seems to have misconstrued
this decision and used the so-called false defence put up by
the appellant as one of the additional circumstances
connected with the chain. There is a vital difference between
an incomplete chain of circumstances and a circumstance
which, after the chain is complete, is added to it merely to
reinforce the conclusion of the court. Where the prosecution
is unable to prove any of the essential principles laid down
in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 :
1953 Cri LJ 129] , the High Court cannot supply the
weakness or the lacuna by taking aid of or recourse to a
false defence or a false plea. We are, therefore, unable to
accept the argument of the Additional Solicitor-General.
162. Moreover, in M.G. Agarwal case [AIR 1963 SC 200 :
(1963) 2 SCR 405, 419 : (1963) 1 Cri LJ 235] this Court while
reiterating the principles enunciated in Hanumant case [AIR
1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] observed
thus:
"If the circumstances proved in the case are consistent either
with the innocence of the accused or with his guilt, then the
accused is entitled to the benefit of doubt."
In Shankarlal [(1981) 2 SCC 35, 39 : 1981 SCC (Cri) 315,
318-19 : (1981) 2 SCR 384, 390 : 1981 Cri LJ 325] this Court
Page 18 of 31
// 19 //
reiterated the same view thus : [SCC para 31, p. 44 : SCC
(Cri) p. 322]
"Legal principles are not magic incantations and their
importance lies more in their application to a given set of
facts than in their recital in the judgment."
163. We then pass on to another important point which
seems to have been completely missed by the High Court. It
is well settled that where on the evidence two possibilities
are available or open, one which goes in favour of the
prosecution and the other which benefits an accused, the
accused is undoubtedly entitled to the benefit of doubt. In
Kali Ram v. State of Himachal Pradesh [(1973) 2 SCC 808 :
1973 SCC (Cri) 1048 : AIR 1973 SC 2773 : (1974) 1 SCR 722
: 1974 Cri LJ 1] this Court made the following observations :
[SCC para 25, p. 820 : SCC (Cri) p. 1060]
"Another golden thread which runs through the web of the
administration of justice in criminal cases, is that if two
views are possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to his
innocence, the view which is favourable to the accused
should be adopted. This principle has a special relevance in
cases wherein the guilt of the accused is sought to be
established by circumstantial evidence."
[Emphasis supplied]
29.3. The Hon'ble Supreme Court in Arulvelu & another v. State
Represented by the Public Prosecutor and another : (2009) 10
SCC 206, Court has held that finding contrary to the evidence is
"perverse", the finding of the trial court in ignorance of the relevant
materials on record is undoubtedly perverse and ripe for
interference from this Court.
29.4. In the case of Sharada Birdhi Chand Sarda (supra) at
paragraphs-160 and 176 of the SCC, the Hon'ble Supreme Court
referring to the decision of the High Court in that particular case,
held that the High Court has taken a completely wrong view of law
in holding that even if the prosecution may suffer from serious
Page 19 of 31
// 20 //
infirmities, it could be reinforced by additional link in the nature of
a false defence in order to supply the lacuna and has thus
committed a fundamental error of law. Since two views are clearly
possible in the present case, the question of defence being false
does not arise and the argument of the High Court that the
defence was false does not survive.
30. Since it is contended by the learned counsel for the
appellant that there are material variations in the evidences of
P.Ws.2, 3 and 6, presented by the prosecution to be the witnesses,
who have seen the occurrence, we would cull the following aspects
of the evidences of the said witnesses.
30.1 The statement of P.W.2 in his examination-in-chief as well
as the cross-examination have been quoted above, who has stated
that "Hearing hullah of the children of the accused we went to the
spot. By the time I reached the spot my deceased father was lying
on the ground with injuries." He has further stated that he along
with P.Ws.3 and 6 reached the spot at the same time regarding the
source of the light and its location in the dark night, the village
being without any electricity, P.W.2 has stated that "lanthan in
lighting condition was there on the verandah of the accused."
30.2. Regarding the incident and response of the P.Ws.2, 3 & 6,
P.W.3 has stated "At the time of such quarrel we did not go to spot
to restraint. At the time of the incident the child of the accused
shouted and hearing such shout we went to the spot. By the time
we reached the spot the deceased was lying dead. We ascertained
Page 20 of 31
// 21 //
from the children of the accused that the accused killed the
deceased."
Regarding the source of light and its location, P.W.3 has
stated thus in his cross-examination :
"There was a 'Dibiri' light inside the house of the accuse
which is a small hut. The light was not sufficient to give clear
vision inside the house. First Somanath went to the spot and
sometimes after we three went there.
30.3 P.W.6 in his evidence has stated thus :
".... We did not intervene when they were quarrelling. Heard
the shout of children of the accused we rushed to the spot."
In his cross-examination, P.W.6 has further stated "I have
seen the accused while assaulting the deceased by an axe. I
have seen the accused bringing an axe from his house."
Regarding the source of light P.W.6 has not referred to
anything as to how he was able to see the darkness the act of the
accused attacking the deceased and then escaping from the spot
though he has categorically stated that it was a dark night and the
village is without any electricity.
31. Regarding their individual response to the situation and the
sequence of them reaching at the spot, as has been noted above, in
their evidence before the learned trial court, P.W.2 states that he
along with P.Ws.3 and 6 reached the spot at the same time. P.W.3
states that he along with P.Ws.2 and 6 did not go to the spot to
restrain when the deceased and the accused were quarrelling, they
went to the spot when the children of the accused shouted and
they ascertained from the children of the accused that the accused
killed the deceased.
Page 21 of 31
// 22 //
P.W.6 has further stated in his cross-examination, Chakra
Muduli (P.W.3) reached the spot first.
32. The source and location of light has been described by the
three witnesses as follows : P.W.2 says it to be a "lanthan" located
at the "Verandah" of house of accused at about 5ft from the place
of occurrence outside the house; the P.W.3 states the source of
light to be "Dibiri" inside the small hut of accused not sufficient to
give clear vision inside the house and lastly the P.W.6 does not
refer to any source of light or it's location.
If P.Ws.3's version is to be believed, then the light was not
sufficient to give clear vision inside the house, therefore the light
inside the house illuminating the spot of occurrence which is
outside house about five feet from varendah of the house becomes
improbable. Further, if the P.Ws.2, 3 & 6 were standing together
and went to the spot together their statements could not have
varied as to how they came to know about the incident or to the
extent they reached the spot at a time interval.
32.1 In Ashoksinh Jayendrasinh v. State of Gujarat: (2019) 6
SCC 535, it has been held:
"10. The occurrence was of 23.11.1997 at 09:00 PM in the
agricultural field of complainant-Somabhai Rupabhai (PW-
3), where it was dark. The panchnama of the scene of
occurrence (Ex.P-73) shows no indication of the electric
light either in the animal shed situated behind the house of
complainant or that there is any electric pole anywhere in
the vicinity or that there is a light on the well which is
supplying water. Case of prosecution is that the appellant
and six other co-accused surrounded the complainant
party and there were three gunshots fired. The injured
Page 22 of 31
// 23 //
witness (PW-6) in his cross-examination has admitted that
he had not stated anything about the burning light either
in the animal shed or anywhere in the vicinity. In the
absence of any evidence as to the light aspect, the
possibility of identifying the accused in the darkness of the
agricultural field of the complainant, particularly at 09:00
PM becomes doubtful. It is also to be pointed out that there
is no evidence as to whether there was moonlight on
23.11.1997 and complainant has also not stated that he
has identified the appellant or other co-accused with the
help of moonlight. In the absence of evidence as to the
availability of sufficient light, the identification of the
accused and the overt act attributed to the appellant
becomes doubtful."
[Emphasis supplied]
32.2. Though the prosecution has presented that the P.Ws saw the
occurrence in the available light, as testified by the P.Ws.2, 3 & 6
inconsistently, for the sake of argument, to answer the proposition
advanced by the learned Additional Government Advocate that
darkness has its own light, the answer would be, in the case at
hand in view of the discrepancies in the evidence adduced
regarding the source and location of light, darkness did not have
enough light to see the occurrence about 50 feet away much less
to fasten the liability on a person on the basis of the statements of
P.Ws.2, 3 & 6.
33. In our considered opinion even if this Court does not adopt
too serious a view in evaluating the evidence adduced by P.Ws.2, 3
and 6, the variations in the narrative of the incident by P.Ws.2, 3
and 6 show that there is discrepancy regarding the response of the
three witnesses to the fatal occurrence, discrepancy regarding the
three persons becoming eyewitness to the occurrence and, further
Page 23 of 31
// 24 //
there is discrepancy regarding the source and location of light
enabling them to see the occurrence. In our considered view, such
discrepancies are serious enough not to treat their evidence as
proof beyond all reasonable doubts.
33.1 The other aspect that the medical opinion, i.e., the evidence
of autopsy surgeon not mentioning regarding the injuries to be
antemortem in nature and that the death was homicidal in nature,
further affects the prosecution case, inasmuch as, the medical
evidence is not consistent with the prosecution case that the
accused could have inflicted the fatal wounds on the deceased.
33.2 In the case at hand, it has been suggested by the learned
Additional Government Advocate that the accused went missing
and subsequently caught and stain of blood on clothes is also not
explained by the accused.
In our considered view, the said materials on their own are
not sufficient to hold the accused guilty due to infirmities and
inconsistencies in the evidence of the prosecution witnesses
presented and relied upon to be the eyewitnesses of the fatal
incident before the learned trial court.
33.3 In response to submissions of the learned AGA regarding
incriminating nature of the forensic evidence like chemical
examination report, it is submitted by the learned counsel for the
appellant that chemical examination report on its own cannot form
the basis of conviction of the accused when the veracity of the fatal
incident of which the appellant has been accused to be the author,
Page 24 of 31
// 25 //
is shaken due to inadequacy of evidence presented by the
prosecution. In our considered opinion, the submissions of the
learned counsel for the appellant are to be upheld. It has to be
marked that the recovery of "Tangia" from the spot, which is
alleged to be the weapon of offence was not at the instance of the
accused nor there is any further evidence like "fingerprints" on the
handle of the axe to connect the accused to the extent that the
accused was holding the weapon. The circumstances of the seizure
of clothes allegedly worn by the accused have not been presented
before the trial court though the accused was arrested by the
Investigating Officer from another village.
34. Dealing with circumstantial evidence, like recovery of blood
stained weapon to what extent can be relied upon to prove the
guilt of the accused the Hon'ble Supreme Court in Sattatiya v.
State of Maharashtra : (2008) 3 SCC 210: A 2008 SC 1184
have held paragraphs-10, 26 & 30 of SCC :
"10. We have thoughtfully considered the entire matter. It is
settled law that an offence can be proved not only by direct
evidence but also by circumstantial evidence where there is
no direct evidence. The Court can draw an inference of guilt
when all the incriminating facts and circumstances are
found to be totally incompatible with the innocence of the
accused. Of course, the circumstances from which an
inference as to the guilt is drawn have to be proved beyond
reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred from
those circumstances
[Emphasis supplied)
xxx xxx
26. The next thing which is to be seen is whether the
evidence relating to the recovery of clothes of the appellant
and the half blade, allegedly used for commission of crime,
Page 25 of 31
// 26 //
is credible and could be relied on for proving the charge of
culpable homicide against the appellant. In this context, it is
important to note that the prosecution did not produce any
document containing the recording of statement allegedly
made by the appellant expressing his desire to facilitate
recovery of the clothes and half blade. The prosecution case
that the accused volunteered to give information and took
the police for recovery of the clothes, half blade and
purchase of handkerchief is highly suspect. It has not been
explained as to why the appellant gave information in
piecemeal on three dates i.e. 3.10.1994, 5.10.1994 and
6.10.1994. Room No.45 of "Ganesh Bhuvan" from which the
clothes are said to have been recovered was found to be
unlocked premises which could be accessed by any one.
The prosecution could not explain as to how the room
allegedly belonging to the appellant could be without any
lock. The absence of any habitation in the room also cast
serious doubt on the genuineness and bonafides of recovery
of clothes. The recovery of half blade from the road side
beneath the wooden board in front of "Ganesh Bhuva" is
also not convincing. Undisputedly, the place from which half
blade is said to have been recovered is an open place and
everybody had access to the site from where the blade is
said to have been recovered. It is, therefore, difficult to
believe the prosecution theory regarding recovery of the half
blade. The credibility of the evidence relating to recovery is
substantially dented by the fact that even though as per the
Chemical Examiner's Report the blood stains found on the
shirt, pant and half blade were those of human blood, the
same could not be linked with the blood of the deceased.
Unfortunately, the learned Additional Sessions Judge and
High Court overlooked this serious lacuna in the prosecution
story and concluded that the presence of human blood
stains on the cloths of the accused and half blade were
sufficient to link him with the murder.
xxx xxx xxx
30. On the basis of above discussion we held that the
prosecution failed to establish the chain of circumstances
which could link the appellant with the crime. The learned
Trial Court and the High Court committed a serious error by
relying on the circumstantial evidence of last scene, the
recovery of pant and shirt from Room No.45 of "Ganesh
Bhuva" building, half blade from under the wooden board
and the sale of the handkerchief by PW7 to the appellant."
[Emphasis supplied)
Page 26 of 31
// 27 //
Sattatiya (supra) has been followed in the decision rendered
by a Bench comprising of three Hon'ble Judges in Balwan Singh
vs The State Of Chhattisgarh : (2019) 7 SCC 781 and held at
paragraph-12:
"12. In Sattatiya v. State of Maharashtra (2008) 3 SCC 210,
one of the crucial factors that had led this Court to reverse
the conviction was that the bloodstains on the items seized
in the recovery could not be linked with the blood of the
deceased. This factor was treated as a serious lacuna in
the case of the prosecution."
[Emphasis supplied)
Balwan Singh (supra) relied on the Constitution Bench
decision of the Hon'ble Supreme Court in Raghav Prapanna
Tripathi vs The State of Uttar Pradesh : AIR 1963 SC 74
which has been thus quoted at paragraph-14 of Balwan Singh
(supra):
"It is also important to note the following observations made
by a Constitution Bench of this Court in Raghav Prapanna
Tripathi & others v. State of U.P., AIR (1963) SC 74 (AIR P-
78, para-21):
"21. In this connection, reference may also be made to
circumstances 9 and 10, relating to the recovery of the
bloodstained earth from the house.
The bloodstained earth has not been proved to be stained
with human blood. Again, we are of opinion that it would be
farfetched to conclude from the mere presence of
bloodstained earth that earth was stained with human
blood and that the human blood was of Kamla and
Madhusudhan. These circumstances have, therefore, no
evidentiary value."
(Emphasis supplied)
Therefore, the five-Judge Bench had ruled that in that case
the prosecution needed to prove that the bloodstains found
Page 27 of 31
// 28 //
on the earth or the weapons were of a human origin and
were of the same blood group as that of the deceased."
[Emphasis supplied)
In Balwan Singh (supra), it has been held paragraphs-20,
21, 22 & 23:
"20. However, we cannot lose sight of the fact that the
accused would be in a disadvantageous position in case if
the aforementioned dictum laid down by this Court in the
cases of R. Shaji v. State of Kerala: (2013) 14 SCC 266,
Gura Singh v. State of Rajasthan (2001) 2 SCC 205,
Jagroop Singh v. State of Punjab : (2012) 11 SCC 768 and
State of Rajasthan v. Teja Ram: (1999) 3 SCC 507 relating
to the bloodstains is applied in each and every case. Non-
confirmation of bloodgroup or origin of the blood may
assume importance in cases where the accused pleads a
defence or alleges mala fides on the part of the prosecution,
or accuses the prosecution of fabricating the evidence to
wrongly implicate him in the commission of the crime.
21. In John Pandian v. State of Tamilnadu: (2010) 14 SCC
129, this Court, on facts, observed that the evidence of
recovery of weapons was credible. The Forensic Science
Report (FSL) report had disclosed that the blood was of
human origin. The Court proceeded to conclude that since
the evidence of recovery of weapon was proved to the
satisfaction of the Court, it was sufficient that the
prosecution had proved that the bloodstains were of human
origin, even though the blood group could not be
ascertained.
22. The cases discussed above highlight the burden that
the prosecution would ordinarily have to discharge,
depending on the other facts and circumstances of the case,
for the evidence relating to recovery to be considered
against the accused. At the same time, as mentioned above,
we are conscious of the fact that it may not always be
possible to inextricably link the bloodstains on the items
seized in recovery to the blood of the deceased, due to the
possibility of disintegration of bloodstains on account of the
timelapse in carrying out the recovery. For this reason, in
Prabhu Dayal v. State of Rajasthan: (2018) 8 SCC 127,
Page 28 of 31
// 29 //
where one of us (Mohan M. Shantanagoudar J.) had the
occasion to author the judgment, this Court, relying on Teja
Ram (supra), had held that the failure to determine the
blood group of the bloodstains collected from the scene of
offence would not prove fatal to the case of the prosecution.
In Prabhu Dayal case (supra), although the FSL report could
not determine the blood group of the bloodstains on account
of disintegration, the report clearly disclosed that the
bloodstains were of human origin, and the chain of
circumstantial evidence was completed by the testimonies
of the other witnesses as well as the reports submitted by
the Ballistic Expert and the Forensic Science Laboratory
regarding the weapon used to commit murder.
xxx xxx xxx
23. From the aforementioned discussion, we can
summarise that if the recovery of bloodstained articles is
proved beyond reasonable doubt by the prosecution, and if
the investigation was not found to be tainted, then it may be
sufficient if the prosecution shows that the blood found on
the articles is of human origin though, even though the
blood group is not proved because of disintegration of blood.
The Court will have to come to the conclusion based on the
facts and circumstances of each case, and there cannot be
any fixed formula that the prosecution has to prove, or need
not prove, that the blood groups match.
[Emphasis supplied)
In the present case, the prosecution somehow has not
presented the evidence as to the blood group of deceased as well as
of the accused. It is not known whether there was any effort to
determine the blood groups of the deceased as well as of the
accused.
Applying the law laid down in Balwan Singh (supra) it has
to be held that recovery of blood stained "tangia" and the clothes
alone would not be sufficient circumstance to hold the accused
guilty as there cannot be any such fixed formulae to apply to each
Page 29 of 31
// 30 //
case and in the case at hand the testimonies of witness have failed
to link the accused with the crime.
35. As we have referred to Rammi (supra), the High Court in
appeal can jettison the evidence of an eye-witnesses when the
discrepancies in the evidence is incompatible with the credibility of
his version.
By applying the above principles in our considered opinion
discrepancies in the evidences of P.Ws.2, 3 & 6 are incompatible
with the credibility of their versions individually as well as
collectively taken together and their evidences have to be
jettisoned.
By applying the law laid down by the Hon'ble Supreme Court
in Sharad Birdhi Chand (supra), regarding the appreciation of
the evidence presented by the prosecution, it has to be held that
the prosecution has not been able to prove that the accused is the
author of the crime beyond all reasonable doubt.
The material inconsistencies in the statement of the
prosecution witnesses, who have been treated to be the
eyewitnesses based on which a verdict of guilt has been returned
by the learned trial court fundamentally affects the prosecution
story and the material inconsistencies cannot be ignored, when the
requirement of standard of proof is proving to the hilt, beyond all
Page 30 of 31
// 31 //
reasonable doubts. The appeal is allowed and accordingly the
judgment dated 12.06.2014 of the learned trial court in Criminal
Trial No. 1 of 2012 is set aside. The appellant is to be set at liberty
unless wanted in connection with any other case.
........................
M.S.Sahoo, J.
the S.Talapatra, J. I agree ........................ S.Talapatra, J.
Orissa High Court, Cuttack The 9th September,2022/dutta/Gs Page 31 of 31