Orissa High Court
Sriram Khara vs State Of Odisha on 24 July, 2023
Bench: D.Dash, S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.47 of 2016
In the matter of an Appeal under Section 374 of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and the
order of sentence dated 23rd December, 2015 passed by the learned
Sessions Judge, Koraput at Jeypore, in Criminal Trial No.112 of 2012.
----
Sriram Khara .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.Niranjan Panda
(Advocate)
For Respondent - Mr.S.S.Kanungo,
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
Date of Hearing : 22.06.2023 : Date of Judgment:24.07.2023 D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and the order of sentence dated 23rd December, 2015 passed by the learned Sessions Judge, Koraput at Jeypore, in Criminal Trial No.112 of 2012 arising out of G.R. Case No.87 of 2012 corresponding to Nandapur P.S. Case No.6 of 2012 of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Koraput.
The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, Page 1 of 9 CRLA No.47 of 2016 {{ 2 }} 1860 (for short, 8the IPC9). Accordingly, he has been sentenced to undergo imprisonment for life.
2. Prosecution Case:-
On 09.02.2012, one Pratima Khara (informant-P.W.4) being accompanied her sister Dalimba Khilla (P.W.8), mother Sukri Khara and her sister9s husband, namely, Dambarudhar Khilla (P.W.3) had gone to the agricultural land near the village for the cultivation leaving her nephew Maheswar Khilla (P.W.7) and her father Harish Chandra Khara (deceased) at home, who were then sitting on their outer verandah of the same. It is stated that on that day, around 11.00 a.m., the accused came near Harish (deceased) and asked him that he had some work with him. He then invited him to his house. Acceding to said invitation, Harish went to the house of the accused. Sometime thereafter, Harish screamed that he was being killed by the accused. Hearing the shout of the deceased, Maheswar (P.W.7) immediately rushed near the house of the accused and he then saw through the window of the house as to what was happening inside the room. He saw the accused by making Harish lie on the ground was stabbing on his chest by means of a knife. The accused in this way gave 3 to 4 blows on the chest of the deceased, who was then shouting. Maheswar (P.W.7) then rushed to the field where the informant (P.W.4) and others were there. Hearing about the incident from Maheswar (P.W.4), they immediately rushed to the spot. The villagers then assembled near the spot and accused at that time was standing near his house holding a knife. The deceased Harish was lying dead in the house of the accused with severe bleeding injuries on his person. Seeing the villagers, the accused threatened them that if anybody would chase him, he would be killed. He also declared that since Harish had caused a lot of harm to them by practicing sorcery, he had stabbed Page 2 of 9 CRLA No.47 of 2016 {{ 3 }} him to death by means of the knife. Saying so, the accused went away from the village holding the knife. Sometime thereafter, when the villagers concealed themselves, the accused came to his house holding the knife and then the villagers could nab him and snatched away the said knife from him and placed the same near the dead body.
Pratima Khara (P.W.4), the daughter of the deceased then lodged the written report before the Sub-Inspector of Police, Nandapur P.S. (S.I-P.W.10), who, in the absence of the Inspector-in-Charge of the said P.S., treated the same as FIR and registered the case. He then took up investigation.
3. In course of investigation, the Investigating Officer (I.O.-P.W.10) examined the Informant (P.W.4) and visited the spot, i.e., the house of the accused. He then prepared the spot map (Ext.10), held inquest over the dead body of the deceased in presence of the witnesses, which led to preparation of the inquest report (Ext.1). The dead body of the deceased was the sent for postmortem examination by issuing necessary requisition. The I.O. (P.W.10) then seized blood stained and sample earth from the spot and also the weapon offence, i.e., the knife in presence of a witness under the seizure list (Ext.2). The accused, who by then had been detained by the villagers, was arrested and forwarded in custody to the Court after seizure of his wearing apparels stained with blood. The accused was also medically examined. Some other witnesses were examined by P.W.10. On 26.02.2012, the I.I.C. (P.W.9) took charge of the investigation from P.W.10 and on completion of the investigation, he submitted the Final Form placing the accused to face the Trial for commission of the offence under section 302/506 of the IPC.
Page 3 of 9 CRLA No.47 of 2016{{ 4 }}
4. Learned S.D.J.M., Koraput, on receipt of the Final Form, took cognizance of said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offences against the accused.
5. The prosecution, in support of its case, has examined in total eleven (11) witnesses during trial. As already stated, P.W.4 is the informant, who happens to be the daughter of the deceased, who had lodged the report (Ext.4), which triggered the investigation. The grandson of the deceased is P.W.7 and he is the most important witness for the prosecution as he has been examined as the eye witness to the occurrence. The Doctor, who had conducted the autopsy over the dead body of the deceased has been examined as P.W.5 and the two Investigating Officers (Ios) are P.Ws.9 & 10. Some villagers, who are the post occurrence witnesses have also been examined.
Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 13. Important of those, are the FIR (Ext.4); inquest report (Ext.1); post mortem report (Ext.5); and the spot map (Ext.10).
The wearing apparels of the deceased and the accused as also the knife, which were seized have been produced during Trial as Material Objects (M.O.I to VI).
6. The plea of the accused is that of complete denial and false implication. One Sriram Khara has been examined from the side of the accused as D.W.1.
Page 4 of 9 CRLA No.47 of 2016{{ 5 }}
7. The Trial Court, upon examination of the evidence of the Doctor (P.W.5), who had conducted the autopsy over the dead body of the deceased and had noted several stab wounds on the chest of the deceased, which he has reflected in his report (Ext.5) as also the evidence of other witnesses including P.W.7 and the villagers, who had seen the deceased lying dead with stab would on his chest, has arrived at a conclusion that Harish (deceased) met a homicidal death. In fact, said aspect of the case was not under challenge before the Trial Court and that is also the position before us in this Appeal.
8. The Doctor (P.W.5), during post mortem examination, has sated to have seen five numbers of external injuries. Those five injuries have been noted in his report (Ext.5). There are three stabbed wounds on different parts of the chest and the other three are; two abrasions on the chest and abdomen. According to the evidence of the Doctor (P.W.5), all such injuries are ante mortem in nature. He has also stated about the size of the injuires and on dissection, he has found the pleura to have been ruptured on the left side of fourth intercostal area, which is an on account of stabbing. The pericardium was found to have been ruptured along with the left ventricle having a haematoma of 6 cm X 5 cm resulting from the stabbing by sharp cutting weapon. It is his evidence that the death of the deceased had taken place on account of the stab injuries received by the deceased.
P.W.10 is the first I.O., who had conducted the inquest over the dead body of the deceased has also noted all such injuries in his report in his own language, which has been admitted in evidence and marked Ext.1. Other witnesses have also stated to have seen the deceased lying with all such injuries on his chest. All these evidence have not at all been questioned. In view of all such overwhelming evidence on record, Page 5 of 9 CRLA No.47 of 2016 {{ 6 }} we find absolutely no difficulty to concur with the finding of the Trial Court that the death of the deceased was homicidal.
9. Mr.N. Panda, learned counsel for the Appellant (accused) submitted that the solitary testimony of P.W.7, who has been examined from the side of the prosecution as the eye witness is unsafe to be relied upon. According to him, the evidence of P.W.7 if read in entirety does not inspire confidence in mind that he is a truthful witness. He further submitted that the witness when says to have seen the entire incident and the role played by the accused through the window of the room, the prosecution evidence being not there on record as to whether from that window, the place where the deceased was lying was visible, the Trial court has erred in accepting the evidence of P.W.7. He further submitted that this P.W.7, being the grandson of the deceased, the Trial Court should have critically examined his evidence and when he has stated to have not gone inside the house of the accused at any point of time, his evidence ought to have been eschewed from consideration. He further submitted that if the evidence of P.W.7 is taken out of the arena of consideration, other evidence on record cannot from the basis to hold the accused guilty of committing the offence under section 302 of the IPC.
10. Mr.S.S. Kanungo, learned Additional Government Advocate for the Respondent-State, submitted that the evidence of P.W.7 is of sterling quality and no such material has been elicited during cross-examination to raise any doubt over his testimony. He further submitted that merely because P.W.7 is the grandson of the deceased, since he has narrated the incident in a natural manner and when no doubt is raised with regard to his presence, with other supportive evidence coming from the lips of the villagers that the accused had threatened them holding the knife when Page 6 of 9 CRLA No.47 of 2016 {{ 7 }} the deceased was lying in his house and sometime thereafter was captured and the knife was recovered from him, the Trial Court had no other option but to accept the evidence of P.W.7 and, therefore, did commit no mistake in holding the accused to be the author of the crime
11. Before going to judge the sustainability of the finding of guilt of the accused, as has been returned by the Trial Court, in addressing the rival submission, it must be borne in mind that there is no bar in the eye of law for basing a conviction upon the solitary testimony of a witness. However, the rider remains that the evidence of said solitary witness must be of sterling quality and it should be above the board, free from any blemish, which can be termed to be wholly trustworthy.
12. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the prosecution (P.Ws.1 to 11) and have perused the documents admitted in evidence marked as Exts.1 to 12.
13. The prosecution case, as is seen, certainly rests upon the evidence of P.W.7. He is the grandson of the deceased. It is his evidence that when his grandfather (deceased-Aja) his house was sitting on the verandah, he went with him to the house. He has further stated that after a while, hearing the shout of the deceased, he went near the house of the accused and saw his grandfather (deceased-Aja) was screaming and the accused was killing him by means of kati. He has specifically stated to have seen the incident through the window of the house and the accused was then sitting over the deceased, who was lying on the ground and stabbing by means of knife. It is his evidence that the accused gave 3 to 4 blows on the chest of the deceased. His conduct thereafter is also quite Page 7 of 9 CRLA No.47 of 2016 {{ 8 }} natural that seeing the incident, he went to call his parents, aunt and grandmother, who were then working in the paddy field. He states to have narrated the incident to them. Although he has stated at one point of time to have never gone inside the house of the accused, which is highlighted by the learned counsel for the defence as the ground to disbelieve the evidence of P.W.7, that in our view is not of any importance. This P.W.7 having to have seen the incident from the window his evidence that he had not gone to the house of the accused is of no significance to cast doubt on his version as to have seen the happening inside. He has again stated that the window of the house through which he saw the incident is adjacent to the courtyard. He has specifically denies the suggestions thrown by the defence that the house was having no window. In this connection, if we turn to the evidence of P.W.10, the I.O., who had visited the spot, the evidence of P.W.7 stands fully corroborated. Interestingly, by cross-examination, it has been elicited from this P.W.10 has stated that the room in which the dead body of the deceased was lying had a window and it was the middle room of the house of the accused. Thus, the evidence of P.W.7 that he saw the incident through the window is wholly believable. The above being the evidence of P.W.7, when we too find the same is wholly reliable, we find that the evidence of P.W.3 to be of great importance. He has stated that hearing from P.W.7 when he, with others, came near the house of the accused, they saw the dead body of Harish lying inside the house and then the accused told to have killed Harish as he was practicing sorcery. He has further stated that after some time, the villagers detained the accused by tying him.
14. The evidence of P.W.4 also run in the same vein that when hearing the incident, they rushed to the house of the accused, the Page 8 of 9 CRLA No.47 of 2016 {{ 9 }} accused was standing there with a knife and he threatened them to take away their life by that knife and expressed before them that since Harish had done enough harm to his family, he had killed him. This witness has further stated that after that, the accused left the place and sometime thereafter, when he returned, he was nabbed by the villagers and the knife was snatched from him and je was detained being tiled. The evidence of above witnesses have remained unshaken. This also the evidence of P.W.8, who is the son of the deceased.
In view of the above clear, cogent and acceptable evidence on record, we are of the view that the Trial Court has rightly convicted the accused by holding that the prosecution has proved the charge against him beyond reasonable doubt.
15. In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 23rd December, 2015 passed by the learned Sessions Judge, Koraput at Jeypore, in Criminal Trial No.112 of 2012 are hereby confirmed.
(D. Dash), Judge.
Dr.S.K. Panigrahi, J. I Agree.
(Dr.S.K. Panigrahi), Judge.
Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 25-Jul-2023 11:15:48 Page 9 of 9 CRLA No.47 of 2016