Orissa High Court
Parikhita Dehury vs State Of Orissa on 28 October, 2017
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No. 32 Of 2011
An appeal under section 374 of the Code of Criminal Procedure
from the judgment and order dated 07.03.2011 passed by the
Additional Sessions Judge, Rairangpur in S.T. Case No.51 of
2010.
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Parikhita Dehury ......... Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Mr. Bijaya Kumar Behera
Jatish kumar Acharya
For Respondent: - Mr. Dillip Kumar Mishra
Addl. Govt. Advocate
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P R E S E N T:
THE HON'BLE KUMARI JUSTICE SANJU PANDA
AND
THE HON'BLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 28.10.2017
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S. K. SAHOO, J.The appellant Parikhita Dehury along with co-accused Bibhisan Dehury faced trial in the Court of learned Additional Sessions Judge, Rairangpur in S.T. Case No. 51 of 2010 for offence punishable under sections 302/34 of the Indian Penal 2 Code on the accusation of committing murder of Sambhu Dehury (hereafter 'the deceased') on 14.02.2010 at about 8.00 p.m. at village Raikadkacha in furtherance of their common intention.
The learned trial Court vide impugned judgment and order dated 07.03.2011 found the appellant guilty of the offence under section 302 of the Indian Penal Code and accordingly convicted him of such offence and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5000/- (rupees five thousand), in default, to undergo R.I. for one year.
2. The prosecution case, as per the first information report (Ext.1) lodged by Smt. Sarathi Dehury (P.W.1), wife of the deceased before the Inspector in charge, Bisoi police station is that on 14.02.2010 at about 8.00 p.m. the deceased was sitting in the courtyard of his house after taking rice. The informant and her children were taking rice sitting close to the deceased. At that time, the appellant and his uncle co-accused Bibhisan Dehury came to the house of the deceased and threatened the deceased with dire consequence without any reason and co-accused Bibhisan Dehury who was holding a tangia dealt two blows on the deceased on his left side neck and also on root of the ear for which the deceased fell down on the ground sustaining severe bleeding injuries and wriggled down to 3 death. It is further stated in the first information report that the accused persons used to quarrel with the family of the deceased and during the occurrence, they were also giving threat intermittently that whosoever would come nearer to them, he would be killed. The accused persons decamped from the spot towards jungle leaving the tangia at the spot. The people of the locality did not dare to come nearer to the accused persons at the time of occurrence.
On the basis of such first information report, Bisoi P.S. Case No.18 of 2010 was registered under sections 302/34 of the Indian Penal Code and the Inspector in charge of Bisoi police station namely Naba Krushna Nayak (P.W.9) took up investigation of the case, examined the informant and other witnesses, visited the spot and prepared spot map (Ext.3), seized blood stained axe, blood stained earth, sample earth from the spot in presence of the witnesses and prepared seizure list Ext.4. He conducted inquest over the dead body which was lying at the spot vide inquest report Ext.5 and sent the dead body to S.D.H., Rairangpur for post mortem examination. The accused persons were found absconding from the village. The I.O. seized the wearing apparels of the deceased on production of Havildar after post mortem examination under seizure list Ext.2 and 4 subsequently on 19.02.2010 he arrested the appellant and forwarded him to Court on 20.02.2010. The seized axe was sent to the doctor who conducted post mortem examination for his opinion regarding possibility of injuries on the deceased with such weapon and the opinion was obtained under Ext.9. The seized articles were sent to the Deputy Director, R.F.S.L., Bampada, Balasore for chemical examination and ultimately on completion of investigation, charge sheet was submitted against the appellant and co-accused Bibhisan Dehury on 15.06.2010 under sections 302/34 of the Indian Penal Code showing the co- accused Bibhisan Dehury as absconder.
3. After submission of charge sheet, the case against was the co-accused Bibhisan Dehury was splitted up and the case of the appellant was committed to the Court of Session after observing due committal procedure and the case was made over to the learned trial Court for disposal in accordance with law where the learned trial Judge charged the appellant under sections 302/34 of the Indian Penal Code on 11.10.2010 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.
4. The defence plea of the appellant is one of denial. 5
5. In order to prove its case, the prosecution examined ten witnesses.
P.W.1 Sarathi Dehury is the widow of the deceased and she is the informant in the case and an eye witness to the occurrence.
P.W.2 Maheswar Dehury is the father-in-law of the deceased and he stated that P.W.7 scribed the first information report.
P.W.3 Ganesh Dehury is the nephew and P.W.4 Parameswar Dehury is the son of the deceased respectively and they are the eye witnesses to the occurrence.
P.W.5 Sukadev Dehury stated that P.W.1 came to him and told him that the co-accused Bibhisan committed murder of the deceased.
P.W.6 Bandhu Dehury stated to have seen the deceased lying down at the spot with cut injuries on the neck.
P.W.7 Naresh Chandra Mohanta is the scribe of the F.I.R. and he did not support the prosecution case for which he was declared hostile.
P.W.8 Subrat Kumar Mohanty also did not support the prosecution case for which he was declared hostile. 6
P.W.9 Naba Krushna Nayak was the Inspector in charge of Bisoi police station who is the investigating officer of the case.
P.W.10 Dr. Nilamani Tulak Chand Behera was the Asst. Surgeon, S.D.H., Rairangpur, Mayurbhanj who conducted post mortem examination over the cadaver of the deceased and proved the post mortem report Ext.8. He also on a written query of the investigating officer gave his opinion regarding possibility of the injuries on the deceased with such weapon as per his query report Ext.9.
The prosecution exhibited nine documents. Ext.1 is the first information report, Exts.2 and 4 are the seizure lists, Ext.3 is the spot map, Ext.5 is the inquest report, Ext.6 is the query made by the I.O., Ext.7 is the forwarding report, Ext.8 is the post mortem report and Ext.9 is the opinion of the doctor.
6. The learned Trial Court after assessing the evidence on record came to the finding that the death of the deceased was homicidal in nature. It is further held that it is apparent that at the relevant time, P.Ws.1, 3 and 4 were present very near the spot of occurrence and there is no reason whatsoever to disbelieve the version of the eye witnesses or even to view it with suspicion rather the version is clear, cogent and entirely 7 trustworthy and it was held that the appellant caused the death of the deceased by inflicting blows on the vital parts of his body by means of tangia. It is further held that considering the rustic background of the informant, it cannot be said that the delay in lodging the F.I.R. was in any manner unreasonable or unexplainable so as to view the prosecution story with suspicion. It is further held that it is a case where intention and premeditation are present which automatically takes the case out of purview of Exception 4 to Section 300 of the Indian Penal Code and the irresistible conclusion that is available to be drawn from the facts of the case is that the act of the appellant in causing the death of the deceased is nothing but murder punishable under section 302 of the Indian Penal Code.
7. Mr. Bijaya Kumar Behera, learned counsel appearing for the appellant contended that there is inordinate delay in lodging the F.I.R. which gave rise to the concoction of the case. It is further contended that the initial story of the prosecution as per the first information report which was lodged by none else than the widow of the deceased who claims to be an eye witness to the occurrence is that it is the co-accused Bibhisan Dehury who assaulted the deceased twice with a tangia and the appellant had accompanied the said co-accused but during trial, 8 specific overt act was attributed to the appellant that he also assaulted the deceased by tangia which is nothing but a super addition and therefore, no reliance can be placed on such version. It is further contended that the materials on record indicate that nobody had seen the actual assault on the deceased and everything has been stage managed afterwards and the highly interested witnesses who are the family members of the deceased have falsely implicated the appellant. It is further contended that even if for the sake of argument, it is accepted that co-accused Bibhisan Dehury assaulted the deceased but there is no material that the appellant shared common intention with him and therefore, the learned trial Court erred in convicting the appellant.
Mr. Dillip Kumar Mishra, learned Addl. Govt.
Advocate on the other hand contended that since the occurrence in question took place in the house of the deceased and that to in the night, the family members are the natural witnesses and their presence at the spot cannot be disputed and merely because the independent witnesses have not been examined to depose relating to the occurrence, that cannot be a ground to discard the prosecution case. It is further contended that the relatives of the deceased cannot spare the real assailant and 9 implicate somebody else falsely. It is further contended that even though the first information report is silent regarding the actual assault by the appellant but his presence at the spot and other overt acts committed have been mentioned clearly in it and moreover the first information report is not the encyclopedia of the prosecution case and therefore, absence of actual assault by the appellant in it cannot be a factor to disbelieve the testimonies of the eye witnesses. It is further contended that the eye witnesses' account is corroborated by the medical evidence and therefore, the learned trial Court is quite justified in convicting the appellant under section 302 of the Indian Penal Code.
8. Adverting over the nature and cause of death of the deceased, we find that apart from the inquest report Ext.5, the prosecution has also relied upon the evidence of P.W.10 Dr. Nilamani Tulak Chand Behera who stated that on 15.02.2010 he conducted post mortem examination over the cadaver of the deceased and noticed two big incised looking wounds, one on the left side of the neck and another incised wound on the left side of the pinna bisecting the pinna at the midpoint. He noticed one sharp cutting incised wound transversely placed at the mid part of the neck about 14 cm. X 6 cm. X muscle deep cutting the 10 longitudinal muscle as well as bigger vessel of the neck. He further noticed another incised looking wound at the posterior part of the left pinna of size 2 ½ inch X 1/3 inch X bone deep also bisecting pinna at the midpoint. Both the injuries were opined to be ante mortem in nature and possible by sharp cutting weapon and the first injury was opined to be sufficient in ordinary course of nature to cause death. He opined the cause of death was due to injury to the bigger vessels of the neck following hemorrhage and shock. He proved the post mortem report Ext.8. On the query of the Investigating Officer, he opined that the weapon of offence which was sent to him can cause the injuries found on the person of the deceased. His query report has been marked as Ext.9.
The learned trial Court has held that the death of the deceased was homicidal in nature.
The learned counsel for the appellant did not challenge the findings of the post mortem examination report.
After perusing the evidence on record, the inquest report Ext.5, post-mortem examination report Ext.8 and the statement of P.W.10 Dr. Nilamani Tulak Chand Behera, we are of the view that the findings of the learned Trial Court regarding the nature of death of the deceased to be homicidal is based on 11 clinching materials and therefore, we concur with such findings and we are also of the view that prosecution has established that the cause of death of the deceased was homicidal in nature.
9. The occurrence in question stated to have taken place in the night on 14.02.2010 at about 8.00 p.m. in the house of the deceased and the first information report was lodged on the next day i.e. on 15.02.2010 at about 11.00 a.m. The distance of the police station from the spot is 21 kms. away from the spot as per the formal F.I.R. In view of the timing of the occurrence and the distance of the police station from the spot, it cannot be said that there is any inordinate delay in lodging the F.I.R.
In the first information report, the informant (P.W.1) who is the widow of the deceased has mentioned that it is the co-accused Bibhisan Dehury who assaulted the deceased by means of a tangia twice on the left side neck and also on the root of left ear as a result of which the deceased fell down on the ground receiving severe bleeding injuries and wriggled down to death. Though the informant mentioned in the F.I.R. that the appellant also came to the spot along with the co-accused and threatened them but she has not mentioned that either the 12 appellant was holding any weapon or instigated the co-accused to assault the deceased.
P.W.5 Sukadev Dehury has stated that P.W.1 came to him at about 8.00 p.m. on the date of occurrence and told him that co-accused Bibhisan murdered the deceased and on the next day morning, he found the deceased lying dead with cut injury on the neck. P.W.1 has also stated that she went to the house of P.W.5 and intimated the matter. The conduct of P.W.1 in disclosing about the occurrence before P.W.5 immediately after the occurrence is admissible as res gestae under section 6 of the Evidence Act.
Therefore, not only P.W.1 has mentioned that it is the co-accused Bibhisan Dehury who assaulted the deceased but also immediately thereafter, she has disclosed before P.W.5 that it is the said accused who is the author of the crime. She has not implicated the appellant at all before P.W.5.
During trial, P.W.1 has stated that on the date of occurrence she was taking her meal in her house at about 8.00 p.m. and the deceased was sitting nearer to her and her son Parmeswar (P.W.4) and nephew (P.W.3) were taking rest after the dinner and the appellant and co-accused Bibhisan came to her house and inflicted tangia blows twice near the left ear and 13 left neck causing injuries as a result of which the deceased died. In the cross-examination, she stated that the appellant inflicted the blow along with co-accused Bibhisan but all the same, she stated that when she went outside, the accused persons are running away throwing the tangia. This statement creates doubt whether she had seen the assault on the deceased or came outside the house and saw the accused persons running away. The evidence of the son of the deceased who has been examined as P.W.4 is also very relevant. Though in the examination in chief, he implicated the appellant as one of the assailants of the deceased but in the cross-examination, he has stated that he was sleeping in the house and the deceased was sitting in the courtyard and at that time P.W.1 was sitting inside the house and hearing the shout of the deceased, he went to the spot and found the tangia was lying at the spot and the accused persons were running away. Similarly though P.W.3 has stated to have seen the appellant inflicting tangia blow on the deceased but in the cross-examination, he admits that he has not stated before the I.O. about such assault. Therefore, P.W.3 for the first time in Court stated about the appellant assaulting the deceased.
Though it is true that the relationship of the witnesses to the deceased cannot be a ground to throw out their 14 evidence if it is found to be consistent and trustworthy or in other words, relationship is not a factor to affect the credibility of witnesses and the courts have to scrutinize the evidence of the related witnesses meticulously with a little care and caution but in the present case, not only the prosecution version presented in the F.I.R. is somewhat different from what presented during trial but also the evidence of the eye witnesses that the appellant assaulted the deceased with tangia is a doubtful feature. Even though the F.I.R. is not the encyclopaedia or be all and end all of the prosecution case and it is not a verbatim summary of the prosecution case but when it is presented by an eye witness having sufficient time to have cool reflection over the matter, material omission in it relating to the participation of an accused in the actual assault of the deceased cannot be ignored as a trivial factor.
There is no material of any pre-concert of mind between the appellant and co-accused Bibhisan Dehury who is still absconding to commit the crime. Even as per F.I.R., the appellant had not come to the spot with any weapon or instigated the co-accused to commit the crime. Merely coming together and decamping from the spot together without anything 15 else cannot be factor in the present scenario to attract the common intention.
10. In view of the discussion made above, we hold that the learned trial Court has not assessed the evidence on record properly and the impugned judgment and order of conviction passed by the trial Court suffers from infirmity. The conclusions which were drawn by the trial Court in convicting the appellant are perverse and against the weight of evidence on record.
Accordingly, the conviction of the appellant under section 302 of the Indian Penal Code is not sustainable in the eye of law. We, therefore, set aside the impugned judgment and order of conviction of the appellant under section 302 of the Indian Penal Code and sentence passed thereunder. It is stated by the learned counsel for the appellant that the appellant is in jail custody. If that be so, he should be released forthwith unless his detention is required in any other case.
In the result, the JCRLA is allowed.
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S. Panda, J. S. K. Sahoo, J. Orissa High Court, Cuttack The 28th October 2017/ Pravakar