Orissa High Court
Degi @ Sudarshan Bhoi vs State Of Odisha on 10 February, 2023
Author: S.K. Panigrahi
Bench: D. Dash, S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.372 of 2015
(From the judgment of conviction and order of sentence dated
19.05.2015 passed by the Learned Additional Sessions Judge,
Dhenkanal in C.T (SS) Case No.22 of 2013)
Degi @ Sudarshan Bhoi .... Appellant
-versus-
State of Odisha .... Respondent
Advocates appeared in the case:
For Appellant : Mr. Prasanta Kumar Sahoo, Adv.
-versus-
For Respondent : Ms. Samapika Mishra, ASC
CORAM:
MR. JUSTICE D. DASH
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-06.01.2023
DATE OF JUDGMENT:-10.02.2023
Dr. S.K. Panigrahi, J.
1. The Appellant has preferred this criminal appeal challenging the judgment of conviction and order of sentence dated 19.05.2015 passed by the Learned Additional Sessions Judge, Dhenkanalin C.T (SS) Case No. 22 of 2013, arising out of G.R Case No. 206 of 2012 corresponding to P.S. Case No. 86 of pg. 1 2012; wherein the Learned Sessions Judge, Dhenkanal has convicted the Appellant for commission of offence punishable under section 302 of the I.P.C and accordingly, sentenced to undergo imprisonment for life and to pay a fine of Rs.20,000/-, and in default to undergo further R.I for a period of 1 year for the offence under section 302.
I. CASE OF THE PROSECUTION
2. The case of the prosecution in brief is that one Ranchi Bhoi submitted a written report before the OIC, Rasol Police Station alleging that on 16.09.2012 at about 7 PM the Appellant was coming to the sahi being armed with a Tangia. At the relevant time, the deceased BarunaBhoi came out of his house and there was altercation between the deceased and the Appellant and, thereafter the Appellant dealt tangia blows and beheaded the deceased. The Appellant also tried to kill the daughter of the informant and out of fear, the daughter and her minor brother left the place.
3. The informant, wife of the deceased & Ranjan Bhoi lodged a written report before the O.I.C., Rasol Police Station. Upon the receipt of information, the OIC along with other staff reached the spot, arrested the accused and seized the weapon of offence. Thereafter the I.O on 17.09.2012 sent the dead body for postmortem examination recorded the statements of the pg. 2 witnesses, seized blood-stained earth & other incriminating materials and, after completion of investigation submitted charge sheet against the Appellant. The prosecution in order to establish the charged offences examined as many as 12 witnesses. The appellant took plea of complete denial & false implication.
II. SUBMISSIONS ON BEHALF OF THE APPELLANT
4. It is submitted by Learned Counsel for the Appellant that the learned Trial court passed an order of conviction relying on the evidence of P.Ws. 1, 7 & 9 who are no other than the wife, daughter & nephew of the deceased. There is no corroboration by any independent witness. The evidence of P.W.1-Informant and the wife of the deceased who stated that she had seen the occurrence by focusing torch light is contrary to what she had deposed in examination-in-chief as she had not stated any such thing during the examination by the I.O. Further, if reliance is placed on such deposition then, the torch light should have been seized by Investigating Officer.
5. It is further contended by Learned Counsel for the Appellant that as per the case of the prosecution, the deceased was beheaded due to constant assault by means of an axe and the I.O had seized the same on the date of occurrence and P.W.3 was the witness to such seizure. However, no axe was pg. 3 produced during trial nor any chemical examination report was found in the record which creates doubt about any such seizure from the Appellant.
6. Moreover, as per the evidence of P.W.9, the Appellant tried to assault his maternal uncle and he has deposed as if he had seen the occurrence but according to P.W.7, except herself & P.W.1 who came to the spot after hearing her hulla, no other villagers were present and therefore, the learned Trial Court should have discredited the evidence of PW9.The witness P.Ws.2, 4 & 6 are post-occurrence witnesses who heard from P.W.7 about the assault on deceased. So, they are hearsay witnesses and the evidence of hearsay witnesses cannot be relied upon.
III. SUBMISSIONS ON BEHALF OF THE STATE
7. Per Contra, it is submitted by Learned Counsel for the State that P.W.1 & P.W.7 are the direct eye-witnesses to the entire incident and it has been clearly deposed by both of them that the accused appellant assaulted the deceased with a tangia and severed his head from the trunk. Moreover, description of the weapon of offence or tangia by P.W.7 matches the description of the weapon of offence that was seized by P.W.11 from the spot of occurrence. Since, the seized weapon of offence was stained with blood as deposed by P.W.3, it is conclusive pg. 4 evidence that the same was used by the accused appellant to assault the deceased.
8. P.W.6 is an independent witness who saw the accused appellant assaulting the deceased and then fleeing from the spot with the severed head towards Madhapur. Therefore, the assault has not only been witnessed by interested witnesses like P.Ws 1, 7 & 9 but also by other independent witnesses like P.W.6. Thus, the testimony of P.W.6 carries massive weight and the same cannot be disregarded as hearsay evidence.
9. It is contended by Learned Counsel for the State that the chemical examination report was not produced as it could not be obtained before filing of charge-sheet. However, from the deposition of witnesses, PM examination report and the medical opinion of P.W.10 as to the weapon of offence, it is clear that the accused appellant assaulted the deceased by means of tangia and subsequently, severed his head due to constant blows.
IV. COURT'S ANALYSIS AND REASONS
10.The prosecution, in order to bring home the charges against the Appellant has examined as many as 12 witnesses out of whom P.W.1 is the Informant, P.W.2 is a co-villager and post- occurrence witness, P.W.10 is the doctor, P.W.11 and 12 are the I.Os. P.W.3 is witness to the seizure in respect of the weapon of pg. 5 offence stained with blood as per Ext.2 and also witness to inquest as per the Exts.3,4 and 5. P.W.4 is the post occurrence witness and also witness to seizure in respect of sample earth and blood-stained earth as per Ext.6. P.W.5 is also witness to Ext.6. P.W.6 is the deceased's brother and a witness to the occurrence. P.W.7-Minakshi Bhoi is the daughter of the deceased and the eye-witness to the entire incident. P.W.8 is witness to the occurrence and witness to the seizure of weapon of "Tangi". P.W.9 is the relative of the deceased and the witness to the occurrence.
11.In a case involving murder, the primary point that arises for consideration is whether the death of the deceased was homicidal in nature. According to the deposition of P.W.10, there were as many as five lacerated injuries and one fracture injury over the face of the deceased. On trunk, there were eight injuries and out of eight injuries, seven injuries were lacerated injuries. P.W.10 stated that all the injuries were ante-mortem in nature and caused by short and heavy cutting weapon. P.W.10 also opined that the death was homicidal in nature and the injuries found on the body of the deceased could have been caused by weapon of offence produced during the investigation. In the cross-examination, P.W.10 deposed that the head and the trunk of the deceased was brought separately but, at the same time and according to the P.M examination pg. 6 report, the head and the trunk belonged to the same person by virtue of the injuries sustained. From a bare perusal of the postmortem examination report, it is clear that the deceased sustained multiple injuries on the head and the trunk with the head having been separated from the trunk. From the nature of injuries and PM examination report, it is clear that the death of the deceased was homicidal in nature and neither there is any iota of doubt nor has any material been produced by the Appellant to dispute the same.
12.The next issue that arises for consideration is whether on 16.09.2012 at about 7 P.M, the Appellant committed the murder of the deceased by intentionally causing his death. According to the deposition of P.W.1, the occurrence took place at 7 P.M. in front of her house. The accused appellant assaulted the deceased by means of an axe. On hearing hulla and on the call of P.W.7, she rushed to the spot in front of her house where she saw the accused assaulting the deceased by means of an axe. The accused appellant constantly assaulted the deceased by means of an axe upon which the head of the deceased was separated from the body. By focusing a torch light, she saw the occurrence. The accused also attempted to assault her.P.W.1 maintained her stance in the cross- examination and there exists no irregularity or contradictions in her statements.
pg. 7
13.P.W.7, who is the first eyewitness to the occurrence, categorically deposed that on the date of occurrence, she was going for performing "Khudurkuni Osha" and as she had left "ghee" back at her house, therefore, she along with her brother returned back to their house to fetch the same. On reaching the courtyard of her house, she observed by focusing the torch light that the accused appellant was assaulting the deceased by means of an axe. Upon seeing this, P.W.7 raised hulla and P.W.1 rushed to the spot and thereafter, P.W.7 alongwith P.W.1 saw the accused appellant severing the head of the deceased from his body. It is pertinent to mention that P.W.7 saw the accused appellant holding the severed head of the deceased and running away towards Madhapur. P.W.7 has also deposed that the accused appellant ran away towards house of Chhayakanta Bhoi (the elder brother of the deceased) and attempted to assault his son Amani by means of Tangi (axe).Further, P.W.7 has emerged from a long and protracted cross-examination as truthful witness and nothing of any significance could be elicited from him which would in any way detract the massive weight of testimony. Apart from minor contradictions and variations, nothing could be elicited which amounts to material irregularity. In general, a witness is liable to get confused, or mixed up when interrogated later on, as ordinarily a witness cannot be expected to recall accurately pg. 8 the sequence of events that take place in rapid succession or in a short time span.P.W.9, who is also a close relative of the deceased, stated that the Appellant ran away with the severed head towards Madhapur and then attempted to assault Amani Bhoi following which he was caught. In the cross examination, P.W.9 claimed that he saw the occurrence after P.W.1 flashed the torch light.
14.Though P.W.1, P.W.7& P.W.9 are eyewitnesses to the entire incident, they are the family members/close relatives of the deceased and hence, are interested witnesses. Therefore, it is important that their statements are duly corroborated by evidence of other independent witnesses. P.W.6, an independent witness, categorically deposed that on reaching the spot of occurrence, he saw the accused appellant running away with a severed head towards Madhapur. He has also deposed that the accused appellant attempted to kill the elder son of Chayyakanta following which the villagers tied the accused and intimated the police. In the cross-examination, P.W.6 has maintained his stand and stated that P.W.7 & P.W.1 were already present by the time he reached the spot. The deposition of P.W.6 as to the act of the appellant of running away with the severed head towards Madhapur and the subsequent attempt of assault on son of Chayyakanta, is duly corroborated by the evidence of P.W.7 who has also deposed pg. 9 about the aforementioned events in detail. P.W.4, a post- occurrence witness who reached the concerned spot after getting the information from the villagers, has also categorically deposed that he saw the head of the deceased separated from his body upon reaching the spot.
15.The evidence rendered by P.W.7, P.W.9 & P.W.6 is duly corroborated by the evidence of P.W.11 who has also stated that the accused appellant was detained by the family members of Amani Bhoi after his alleged attempt to assault Amani. The statements of P.W.11 that the severed head and body of the deceased was lying near the spot along with the weapon of offence also duly corroborates the deposition of P.W.s 1,6,7 & 9. Moreover, P.W.11 in his examination, has categorically stated that the weapon of offence i.e., Tangia was seized from the accused as produced by him. P.W.11 seized the blood stained earth and weapon of offence in presence of seizure witnesses P.Ws 3, 4, 5 & 8 and P.W.12 on 02.01.2013, made a query to P.W.10 as regards the weapon of offence and the injury and thereafter, the seized articles were sent to S.F.S.L, Rasulgarh, Bhubaneswar for Chemical Examination. It is pertinent to mention that the Chemical Examination Report was not received by the time the charge- sheet was submitted and hence, it has not been furnished in the instant case.
pg. 10
16.According to P.W.11, P.W.1 & P.W.7 made identification that the head and the trunk belonged to the deceased and thus, there is no dispute that as to the identity. Since, the weapon of offence seized by P.W.11 matches the description of weapon used during the assault on the deceased and the same was identified by P.W.7, an adverse inference can be taken against the accused appellant even though the exists no chemical examination report to substantiate the same. P.W.7 clearly stated in his deposition that she saw the accused appellant assaulting and severing the head of the deceased by means of a tangia and a weapon that matches the aforesaid description, was seized by P.W.11 at the spot of occurrence. Moreover, P.W.12 produced the weapon before P.W.10 and sought opinion as to whether the said weapon was used to inflict injuries and severe the head of the deceased. P.W.10 replied in affirmative and opined that the injuries found on the body of the deceased could have been caused by a short and heavy cutting weapon. P.W.3, who was a witness to the seizure of axe or the weapon of offence has categorically stated that the police seized a blood-stained axe from the spot of occurrence which was used by the accused for assaulting the deceased. P.W.8 who was also a witness to the seizure of weapon of offence, gave evidence that he saw the accused appellant holding a Tangi (axe) near the dead body of the deceased and pg. 11 the police upon arriving, seized the said Tangi (axe). P.W.4 & P.W.5 have also rendered evidence that the blood-stained earth was seized in their presence from the spot. P.W.8, an eye-witness as well as the seizure witness, is also an independent witness who is not related to the deceased or P.Ws 1,7 & 9. P.W.8 has maintained his stance in the cross- examination that he reached the spot after hearing hulla and witnessed the accused appellant assaulting and beheading the deceased by means of a tangia (axe). Therefore, from a bare perusal of materials and evidence on record and the depositions of eyewitnesses and post-occurrence witnesses, it can be ascertained that the presence of the accused appellant on the relevant spot at 7 P.M is not in dispute. Since, the accused appellant was subsequently arrested from the said spot of occurrence by the police after being nabbed by the villagers, there is overwhelming evidence that he was present at the spot and was armed with the weapon of offence i.e, tangia (axe).
17.Further, D.W.1 in his evidence has clearly admitted that the accused appellant was restrained by Amani Bhoi and his family members. The evidence of D.W.1 is duly corroborated by the evidence of P.W.6,7,9 & 11 who have also stated that the accused appellant was detained by the family members of Amani Bhoi after his alleged attempt to assault Amani. It is a pg. 12 settled position in law that when case of the prosecution is supported by the defence, the prosecution case is more believable. D.W.2 in his deposition has also admitted that one Chayyakanta Bhoi was holding a tangia while his son was holding the severed head of the deceased. If the depositions of the prosecution and defence witnesses are construed carefully and read in conjunction, it can be concluded that the accused appellant assaulted the deceased and severed his head; thereafter, he held the severed head and proceeded towards Madhapur. Due to some reason, the accused appellant turned back and headed towards the house of the Chayyakanta Bhoi who is also the brother of the deceased. The accused appellant attempted to assault Amani Bhoi; however, he was restrained by the family members of Amani Bhoi and the weapon of offence i.e., tangia and the severed head of the deceased were taken away from his possession by Chayyakanta Bhoi and his son. The depositions of D.Ws 1 & 2 supports and corroborates the evidence of P.W.s 6,7,9 & 11 to the extent that the accused appellant was restrained by Amani Bhoi and his family members.
18.It is contended by Learned Counsel for the Appellant that as per the evidence of P.W.9, the Appellant tried to assault his maternal uncle and he has deposed as if he had seen the occurrence but according to P.W.7, except herself & P.W.1 pg. 13 who came to the spot after hearing her hulla, no other villagers were present and therefore, the learned Trial Court should have discredited the evidence of PW9. Moreover, the witnesses P.Ws.2, 4 & 6 are post-occurrence witnesses who heard from P.W.7 about the assault on deceased. So, they are hearsay witnesses and the evidence of hearsay witnesses cannot be relied upon. However, if the statements of P.W.7 in her cross-examination is scrutinized in great detail, it can be ascertained that many villagers rushed to the spot of occurrence after hearing P.W.7's hulla and P.W.1 and P.W.9 were among them. It has been deposed by P.W.7 that many villagers reached the spot within 2 minutes of her hulla, therefore, there is a possibility that P.Ws 6 & 9 rushed to the spot in a short period of time and witnessed the assault on the deceased by the accused appellant. Further, P.Ws 2 & 4 might be post-occurrence witnesses but they have categorically deposed that they found the severed head and trunk of the deceased at the spot of occurrence and their statements have been duly corroborated by evidence of other eyewitnesses and PM examination report. Thus, it cannot be said that the evidence rendered by them are hearsay evidence and thus, cannot be relied upon. The evidence of P.W.6 cannot be regarded as hearsay evidence as he was one of the eyewitnesses to the entire occurrence and his evidence about pg. 14 the accused appellant running away towards Madhapur and his subsequent attempt to assault Amani Bhoi, has been duly corroborated by P.W.7 & P.W.9. P.W.6 is also an independent witness who has rendered direct evidence that the accused appellant assaulted the deceased and attempted to flee with the severed head but was later caught and restrained by Chayyakanta Bhoi's family members and some of the villagers. The evidence of P.W.6 to the extent of the accused being restrained by Chayyakanta Bhoi and his family members has also been corroborated by the evidence of P.W.11 (I.O). Thus, neither there is an iota of doubt as regards to the credibility of statements given by P.W.6 nor it can be said that P.W.6 is deposing falsely due to his close relationship with the deceased and other interested witnesses.
19.Moreover, we affirm the view taken by the Learned Trial Court that the prompt lodging of FIR by P.W.1, wipes out the minor contradictions for which the evidence of P.W.1 is clear and unimpeachable. It is a settled position in law that in cases of prompt lodging of F.I.R, the scope of falsely implicating a person, is negligible as the report is lodged on the basis of facts that actually happened and there is lesser degree of possibility of the facts being doctored so as to falsely implicate any individual. P.W.3 who was a witness to the seizure of weapon of offence, also clearly depicted the circumstances of pg. 15 seizure and the dimension of weapon of offence. P.W.3 was cross-examined extensively and nothing could be elicited to cast doubt upon the seizure of weapon of offence so also the inquest. Insofar as the question of motive is concerned, it is a settled principle in law that when there is direct evidence to the occurrence, motive loses its authority.
20.As regards the allegation made against the accused appellant that he attempted to assault Amani Bhoi, we agree with the decision of the learned Trial Court that the charge under section 307 of the IPC is not established as any overt act on the part of the accused appellant is nor proved.
21.Section 106 of the Evidence Act postulates that, the burden of proving things which are within the special knowledge of an individual is on that individual. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, it merely prescribes that when an individual has done an act, with an intention other than that which the circumstances indicate, the onus of proving that specific intention falls onto the individual and not on the prosecution. Therefore, in the present case, the fact that the accused appellant was present near the house of P.W.7 at 7 P.M and was carrying a tangia is within his special knowledge and the burden of proving that he was not present pg. 16 near the house of P.W.7 and was not carrying the tangia or the weapon of offence is on the accused appellant. This is specifically because on the basis of ocular evidence, depositions of post-occurrence witnesses and PM examination report, the prosecution has successfully established the chain of events and therefore, the burden of proving the fact that the accused appellant was not present at the said spot and he has not assaulted the deceased, is on the appellant. However, the accused appellant has not tendered any explanation towards the same and inability to shift the burden of proof allows the court to take an adverse inference against the accused appellant.
22.On scanning the entire record as well as evidence of prosecution and defence witnesses, it is clearly established that the accused appellant assaulted the deceased in front of his house at about 7 P.M in the evening. He dealt tangia blows to the deceased repeatedly and ultimately, severed the deceased's head from the trunk. The accused appellant also attempted to assault P.W.7 & P.W.1, but tried to flee when P.W.7 raised hulla and the villagers started gathering at the said spot. Thereafter, the appellant left the spot and proceeded towards Madhapur while carrying the severed head and blood stained tangia. However, he returned back and approached the house of Chayyakanta Bhoi to assault pg. 17 Amani Bhoi, but was restrained and caught. Even though, there is no chemical examination report available in the present case, the seizure of blood stained axe from the spot of occurrence and the opinion of P.W.10 that the seized weapon could have been used to inflict injuries on the deceased, yields an additional link in the chain of circumstances to make it complete. Moreover, the corroboration of evidence of prosecution and defence witnesses that the accused appellant was restrained by family members of Chayyakanta Bhoi with the statement of P.W.11- the I.O affirms the presence of the accused on the said spot at the relevant time. Further, from the eye-witnesses' account of P.Ws.1, 6, 7, 8 &9, it is clear that the accused appellant hacked the deceased at multiple places in the body by means of an axe and then, severed his head through repeated tangia blows. All the eye-witnesses have deposed that they witnessed the accused appellant assaulting the deceased and nothing has been brought out of the statements to discard their version as untrue. The ocular evidence of eyewitnesses duly corroborates the evidence of other post-occurrence witnesses who have deposed consistently about the seizure of weapon of murder and other factual aspects of the case. Accordingly, from the eyewitnesses' account, PM examination report, deposition of post-occurrence witnesses, it can be ascertained that the pg. 18 accused appellant is guilty of offence under section 302 of I.P.C.
23.In view of the above, we are of the considered opinion that the Trial Court has rightly convicted and sentenced the Appellant for the offence aforesaid. As a consequence, thereof, the impugned judgment of conviction and order of sentence dated 19.05.2015 passed by the learned Additional Sessions Judge, Dhenkanal in C.T (SS) Case No.22 of 2013, arising out of G.R Case No. 206 of 2012 corresponding to P.S. Case No.86 of 2012 is hereby affirmed. The appeal being devoid of substance, is hereby dismissed.
( Dr. S.K. Panigrahi ) Judge D. Dash, J. I agree.
( D. Dash ) Judge Orissa High Court, Cuttack, Dated the 10th February, 2023/B. Jhankar pg. 19