Aiban Dehury vs State Of Orissa on 26 July, 2017

[Cites 3, Cited by 1]

Orissa High Court

Aiban Dehury vs State Of Orissa on 26 July, 2017

Bench: Biswajit Mohanty

ORISSA HIGH COURT: CUTTACK

JCRLA No.61 of 2007

Arising out of the judgment dated 14.05.2007 passed by the
learned Sessions Judge, Keonjhar in S.T. No.189 of 2006.

Aiban Dehury ...... Appellant

-versus-

State of Orissa ...... Respondent

For Appellant : Mr. Radharaman Das Nayak

For Respondent : Mr. L.Samantaray
(Standing Counsel)

-----------------------------------------------------------------------------------
Date of Judgment: 26.07.2017
-----------------------------------------------------------------------------------
P R E S E N T:

THE HONOURABLE SHRI JUSTICE BISWAJIT MOHANTY
-----------------------------------------------------------------------------------

Biswajit Mohanty, J. The appellant has preferred the present

appeal challenging the judgmnet dated 14.5.2007 pronounced by the

learned Sessions Judge, Keonjhar in Sessions Trial No.189 of 2006

convicting him under Section 304-Part-1 IPC. He has also challenged

the sentence imposed on him whereby he has been directed to

undergo R.I. for 10 years and to pay a fine of Rs.1,000/-, in default

to undergo further R.I. for one month.

2. The allegation against the appellant is that on 2.9.2006 at 9.00

A.M., he intentionally committed murder of his sister-in-law-Hara
2

Dehury. While the appellant is the eldest brother in the family, P.W.1

is the youngest brother in the family. The deceased Hara Dehury is

the wife of the middle brother, namely, Tika. All the three brothers

were staying together. The incident occurred on 2.9.2006. One day

prior to the occurrence, the appellant took food at the house and

started quarrelling with the deceased. On the date of occurrence, the

appellant refused to take food and started quarrelling. He asked the

deceased to trace out her husband, who had left the house to work

in a mines. In such background, the deceased left the house with a

promise to search her husband. While she was going away, the

appellant followed her with a tangia and assaulted her. Due to such

assault, she fell down with bleeding injuries and expired. This

incident was reported to the police and in due course after

completion of investigation, charge sheet was submitted against the

appellant. Accordingly, the appellant was put to trial.

3. The plea of the appellant was of complete denial. Prosecution

in order to bring home the charges examined as many as six

witnesses and exhibited 17 documents.

4. P.W.1 is the youngest brother of the appellant and the

deceased is his sister-in-law. He is an eye-witness to the occurrence.

P.W.2 is the daughter of the deceased. P.W.3 is a relative of the

appellant and is a witness to the inquest and various seizures

including the seizure of the axe/tangia. P.W.4 is a co-villager. P.W.5
3

is the Investigating Officer and P.W.6 is the doctor, who conducted

autopsy. From the side of the appellant, no evidence was adduced.

5. Mr. Radharaman Das Nayak, learned counsel for the appellant

urged that the impugned judgment and the order imposing sentence

are contrary to law and against the weight of evidence on record. He

submitted that since the informant (P.W.1) in his cross-examination

has admitted that he does not know the contents of F.I.R., the entire

edifice of prosecution story collapses. Therefore, the present appeal

ought to be allowed. Relying on the statement of P.W.1 in the cross-

examination to the effect that "By the time I reached the spot Hara

was lying on the ground", he submitted that this makes it clear that

P.W.1 was not an eye-witness to the occurrence. Therefore, the

evidence of P.W.1 should not be given much weightage. The learned

trial court has gone wrong in treating P.W.1 as an eyewitness.

Further, he submitted that P.W.3 who is a witness to the seizure to

the axe, in his cross-examination has deposed that he has not seen

the blood on the axe nor does he know about the day and date of

occurrence. This according to him throws doubt on the version of

P.W.1 about use of axe and the entire incident. Lastly, he submitted

that the doctor conducting autopsy, i.e., P.W.6 in his cross-

examination has admitted that Injuries No.5 and 6 were not

sufficient to cause death in ordinary course of nature. Such an

admission by P.W.6 in his cross-examination runs contrary to his

stand in the examination-in-chief. Such grave contradiction has
4

been ignored by the learned court below. Rather on this account, the

learned court below ought to have ignored the testimony of P.W.6. In

such background, he submitted that the judgment of conviction be

set aside and the appellant who is an illiterate tribal should be set at

liberty.

6. Mr. L.Samantaray, learned Standing Counsel, on the contrary,

defended the impugned judgment and submitted that the

submissions made by learned counsel for the appellant were without

any merit and there existed enough material on record justifying

conviction of the appellant under Section 304-Para-I of IPC.

7. In order to appreciate the submissions of both the learned

counsel, this Court has to scan the evidence on record.

P.W.1 happens to be the younger brother of the appellant and

is an eye-witness to the occurrence, who saw killing of his sister-in-

law-Hara Dehury by the appellant. In his testimony, he said one day

prior to the date of occurrence, the appellant had quarrelled with

the deceased. On the date of occurrence, the appellant refused to

take food and asked the deceased to find out her husband. The

deceased left the house promising to search for her husband, who

happens to be another brother of the appellant. Thereafter, the

appellant followed him with tangi and assaulted her on her head.

This was witnessed by P.W.1 from a distance. On account of assault,

the deceased fell down with bleeding injury. When P.W.1 asked to

appellant not to assault; the appellant again assaulted her with
5

tangia and Hara died. He informed this to P.W.3. The report was

scribed on his instruction and read over and explained to him and

he gave LTI knowing the contents to be true. He proved his earliler

statement under Section 164 Cr.P.C. as Ext.1. In his cross-

examination, P.W.1 submitted that he did not know the names of

persons who scribed the report and he did not know the contents of

F.I.R. (Ext.8). However, he stated that P.W.3 accompanied him to the

police station and the F.I.R. was scribed on his instruction. He

denied a suggestion that he, accused and the deceased had taken

"Handia" on the date of occurrence. He however deposed that by the

time he had reached the spot, Hara was lying on the ground and

that he noticed injuries on the head and back of the deceased. He

admitted that he had not talked with the appellant when he

quarrelled with the deceased and that he had also quarrelled with

the appellant. He denied a suggestion that he had not seen the

assault and was deposing falsehood to grab the land of the

appellant.

P.W.2 is the daughter of the deceased and niece of both the

appellant and P.W.1. She is a child witness. Strangely, she has been

examined straight away without recording any opinion to the effect

that she understands the duty of speaking the truth and that she

has the capacaity to understand the questions and to give rational

answers. In any case, P.W.2 in her deposition has stated that the

deceased is her mother and on the date of occurrence, she herself
6

along with the deceased and her younger sister were going to her

uncle's house. Near the forest, the appellant assaulted the deceased

and the deceased sustained injuries on the back of her head and fell

down. Out of fear, she ran away. She proved her earlier statement

under Section 164 Cr.P.C. under Ext.2. In her cross-examination,

she admitted that P.W.1 was her uncle and admitted that she had

been to see her mother with P.W.1 and P.W.1 had told her that the

appellant assaulted her mother. She further stated that she had not

seen any injury on the body of the mother and that she had come to

court earlier with one police personnel. P.W.1 and police told her

what to state before the Magistrate.

P.W.3 in his deposition has said that he is a relative of the

appellant and he knew the deceased, who was murdered about six

months back. P.W.1 told him that the appellant had assaulted and

killed the deceased in the forest. He went to the spot and saw the

deceased lying with injuries. He admitted that he is a witness to the

inquest and is a signatory to many seizure lists including the seizure

list pertaining to the seizure of axe. In the cross-examination, he

stated that he cannot say the exact contents of the document which

he signed at the spot/place of occurrence. He also stated that he

cannot say when and how the deceased died. He also admitted that

he had not seen blood on the axe and that he did not know about

the day and date of occurrence.
7

P.W.4 a co-villager who stated that the deceased was murdered

about 7 months back and her husband had left the village nine

months prior to the incident and that the deceased, appellant and

P.W.1 were living together and appellant and P.W.1 were not

married. But ultimately, in examination-in-chief, she stated that she

had no knowledge about the affairs of the appellant and no

knowledge about the murder. In the cross-examination, she stated

that the husband of the deceased left the house after quarrelling

with her.

P.W.5 is the Investigating Officer. In his deposition, he stated

that on 2.9.2006 at about 12.00 A.M., he registered the Nayakote

P.S. Case No.24 dated 2.9.2006 under Section 302 IPC. He reduced

the oral report into writing and read over and explained to the

informant (P.W.1) and thereafter the informant gave L.T.I. knowing

the contents to be true. He proved the F.I.R. as Ext.8. Thereafter, he

took up investigation and during course of investigation, he

examined the informant (P.W.1) and others, held inquest at 4.30

P.M. in presence of witnesses and prepared the inquest report

(Ext.3). He despatched the dead body to the District Headquarter

Hospital, Keonjhar, seized sample earth and blood stained earth

from the spot and prepared the seizure list. He arrested the

appellant and seized his wearing apparels and at 8.30 P.M. he seized

the weapon of offence, i.e., tangia on production by the appellant in

presence of the witnesses and prepared seizure list (Ext.7). On
8

3.9.2006

, he forwarded the appellant to the court and also sent requisition to A.D.M.O., District Headquarter Hospital, Keonjhar for medical examination of the appellant and for collection of blood sample. On 5.9.2006, he seized the wearing apparels of the decased under Ext.12. On 11.9.2006, he made querry to P.W.6 by producing the weapon of offence and also prayed for recording of statement of witnesses under Section 164 Cr.P.C. On 17.10.2006, on completion of investigation, he filed charge sheet against the appellant. In his cross-examination, he deposed that the appellant, the decased and her husband were living jointly and the husband of the deceased had not returned to the village. He also admitted that he had not marked any blood stain on the axe. He denied threatening and tutoring of the witnesses. He also denied a suggestion that P.W.1 had not lodged any report before him or that the F.I.R. was scribed on instruction of P.W.3. He stated that the appellant was arrested from his house and denied a suggestion that nothing was seized from the appellant and that he had not produced the axe.

P.W.6 is the doctor, who conducted the autopsy. In his examination-in-chief, he stated that he has noticed the following injuries:-

"(i) there was abrasion of 3/10" x 2/10" over right knee joint.

(ii) there was an abrasion 2/10" x 3/10" over left elbow joint.

(iii) there was an abrasion 3/10" x 2/10" over left dorsal aspect of hand.

(iv) there was an abrasion of 3/10" x 2/10" oveer left shoulder joint.

(v) there was a lacerated wound with depressed fracture over right side scalp 2" x 1" x "1"

(vi) there was a lacerated wound with depressed fracture over left side back of the scalp 3" x 2" x 1"."

Further, in his opinion all the injuries were antemortem in nature and cause of death was due to head injury due to damage of the vital organs causing internal haemorrhage and neurogonic shock. He specifically stated that injuries No.5 and 6 separately were sufficient to cause death in ordinary course of nature. To the querry made by the police, he opined that the injuries found on the deceased can be caused by the weapon of offence. In his cross-examination, he stated that injuries No.1 to 4 cannot be caused by tangia and that all the injuries found can be caused by accident. He also stated that he had not noted in his report that injuries No.5 and 6 are sufficient to cause death in ordinary course of nature. He also submitted that he had not noticed any blood on the axe.

8. An analysis of evidence as indicated above would show that there was quarrel amongst family members and in such background, the appellant refused to take food on the date of occurrence and asked his deceased sister-in-law to find out her husband. As per P.W.1, the informant, when the deceased went out, the appellant followed her with a tangia and assaulted here resulting in her death. P.W.1 saw this assault from a distance. By the time he reached the spot, the deceased was lying on the ground with injuries on head 10 and back. Thus, the assault was witnessed by P.W.1 and statement of P.W.1 to that effect has remained undemolished in cross- examination. Such version of P.W.1 corroborates his earlier statement recorded under Section 164 Cr.P.C. marked as Ext.1. Further, the fact that P.W.1 infromed about the incident to P.W.3 has been corroborated by him (P.W.3). Besides this, the doctor conducting the post-mortem examination not only corroborates the version of P.W.1 relating to head injuries and injuries on back of the deceased but also makes it clear that such injuries are possible by the weapon of offence and that injuries No.5 and 6 separately are sufficient to cause death in ordinary course of nature. With regard to the weapon of offence, i.e., tangia, it is clear from the evidence that the same was seized by P.W.5 in presence of P.W.3 vide Ext.7 on production by the appellant. With regard to absence of blood stain on tangia/axe as stated by P.Ws 3, 5 and 6, nothing turns on that as while occurrence as per Ext.8 took place around 9.00 A.M. on 2.9.2006, the seizure under Ext.7 was made on the same date at about 9.30 P.M. Thus, there was a time gap of more than 11 hours between commission of offence and seizure. Thus, there was enough time for the appellant for washing all the stains from the weapon of offence. Though in cross-examination, P.W.1 has stated that he did not know about the contents of F.I.R. under Ext.8, however, the same is only a minor discrepancy in view of his clear statement in examination-in-chief coupled with evidence of the I.O. (P.W.5), who 11 in his evidence has made it clear that fully knowing the contents of Ext.8, P.W.1 had given his L.T.I. All these would show that the conclusion reached by the learned trial court appears to be correct. Not much importance can be attached to the evidence of P.Ws 2 and

4. While evidence of P.W.2 is full of major contradictions, so far as P.W.4 is concerned, she has admitted that she had no knowledge about the murder.

9. In such background, now let us examine the various submissions made by the learned counsel for the appellant.

With regard to the first submission of learned counsel for the appellant that since P.W.1 has stated in his cross-examiantion that he does not know about the contents of FIR (Ext.8) therefore, the entire edifice of prosecution collapses cannot be accepted inasmuch as a perusal of his own version in examination-in-chief and the evidence of P.W.5 (I.O.) clearly shows that the oral report was reduced to writing on his (P.W.1's) instruction and the same was read over and explained to him and then he gave LTI knowing the contains to be true. All these have been reflected in Ext.8. Thus, P.W.1 had the knowledge of contents of Ext.8. Further, P.W.5 has also denied a suggestion that P.W.1 had not lodged any report before him. Moreover, P.W.1 being an illiterate and rustic tribal, nothing much can be read to his such statement that he did not know the contents of F.I.R. in the background of facts described above. In any case, the evidence of P.W.1 as an eye-witness to the occurrence 12 remains undemolished. Conceding for a moment but not admitting that he is not the informant, even then his evidence as an eye- witness canot be ignored. The second submission of learned counsel for the appellant that P.W.1 cannot be described as an eye-witness as in the cross-examiantion he has admitted that by the time he reached the spot, the decased was already lying on the ground. A holistic reading of evidence of P.W.1 would in no way cast any doubt that he is an eye-witness out and out. In his examination-in-chief he had clearly stated that he had seen the assault from a distance and upon such assault, the decased fell down with bleeding injuries. There is no inconsistancy in his version in his cross-exaination when he says that by the time he reached the spot, the deceased was lying on the ground. This is because in order to reach the spot of occurrence, it must have taken sometime as he witnessed the occurrence from a distance. Therefore, the second submission of learned counsel for the appellant is also without any merit. The third submission of learned counsel for the appellant is that the version of P.W.1 that the appellant assaulted the deceased by means of an axe should not be believed as despite sustaining various injuries there was no blood stain on the axe/tangia. Furhter, since P.W.3 was not able to say about the day and date of occurrence, it throws a cloud on the entire version of P.W.1. Such submission cannot be accepted because as analysed earlier, while the occurrence took place at about 9.00 A.M., the weapon of offence was seized more than 11 13 hours thereafter on being produced by the appellant. Thus, there was enough time for the appellant for washing and cleaning the weapon of offence. In any case, this cannot throw a cloud on the eye- witness version of P.W.1 relating to assault of the decased by the appellant by axe. Further, the doctor (P.W.6) has clearly opined that injuries found on the deceased can be caused by the back side of weapon of offence under Ext.17. With regard to P.W.3 not remembering the day and date of occurrence, the same is of no consequence as he is not an eye-witness to the occurrence rather in his examination-in-chief he has clearly stated that the occurrence took place about 6 months back. Here, while the occurrence took place on 2.9.2006, P.W.3 was examined as witness on 3.4.2007. Thus, nothing much can be read into his inability to remember exact day and date of occurrence, particularly when, he has indicated approximately that the occurrence took place 6 months back.

Last submission of learned counsel for the appellant is that the learned trial court ought to have ignored the evidence of P.W.6 on account of serious material contradiction in his evidence. According to him while in examination-in-chief, the P.W.6 stated that Injuries No.5 and 6 separately were sufficient to cause death in ordinary course of nature but in cross-examination he stated that Injuries No.5 and 6 were not sufficient to cause death in ordinary course of nature. This Court refuses to accept such submission because in the cross-examination P.W.6 has nowhere stated that Injuries No.5 and 14 6 are not sufficient to cause death in ordinary course of nature. He only testified to the fact that he had not noted in his report that Injuries No.5 and 6 are sufficient to cause death in ordinary course of nature. Merely because P.W.6 did not note the above thing in Ext.16, the same cannot demolish his version in examination-in- chief where he clearly states that the cause of death was due to head injury which undoubtedly arise from Injuries No.5 and 6. Rather, in his reply/report under Ext.17, he has made it clear that injuries are sufficient to cause death of the deceased.

10. To conclude, the evidence of P.W.6 as discussed earlier makes it clear that present is a case of homicidal death. The evidence of P.W.1 makes it clear that he is an eye-witness to the occurrence and the cause for such occurrence was a trivial dispute involving members of a scheduled tribe family, who usually loose their tempers quickly even on petty matters. As stated earlier, that part of evidence of P.W.1 relating to he witnessing the actual occurrence remains undemolished in his cross-examination. Further, the version of P.W.1 as rightly noted by learned trial court fully corroborates his statement recorded under Section 164 Cr.P.C., i.e., Ext.1. P.W.1 in his examination-in-chief has clearly stated that he informed about the occurrence to P.W.3 and P.W.3 in his examination-in-chief has also corroborated the same. The version of P.W.1 relating to the injuries on deceased has been corroborated by P.W.6. In such background, this Court unhesitantly holds that the 15 learned trial court made correct appreciation of evidence and has rightly convicted the appellant under Section 304-Part-I IPC. Therefore, the present Jail Criminal Appeal is without any merit and the same is dismissed. Since the appellant is on bail pursuant to order passed by this Court on 14.5.2012, he is directed to surrender to custody for undergoing remaining period of sentence imposed against him by the learned trial court.

It appears from the evidence on record that the deceased had two minor daughters at the time of occurrence. In such background, this Court is of the opinion that in the interest of justice, proper compensation should be paid to them after due enquiry by Orissa State Legal Services Authority and District Legal Services Authority, Keonjhar in accordance with Odisha Victim Compensation Scheme. The entire exercise in this regard should be completed within 3 (three) months.

Copies of this judgment be sent forthwith to Orissa State Legal Services Authority and District Legal Services Authority, Keonjhar for compliance.

.................................

Biswajit Mohanty, J.

Orissa High Court, Cuttack The 26th July, 2017/bns

Unlock Advanced Research with PRISMAI

Orissa High Court