Orissa High Court
Rilly Dehury vs State Of Odisha on 11 August, 2023
Bench: D.Dash, S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.42 of 2018
In the matter of an Appeal under Section 383 of the Code of
Criminal Procedure, 1973 and from the judgment of conviction
and the order of sentence dated 27th February, 2018 passed by the
learned Additional Sessions Judge, Talcher, in C.T.(S) Case
No.103 of 2015.
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Rilly Dehury .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mr.Chiranjib Rout
(Advocate)
For Respondent - Mr.D.K.Mishra,
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
Date of Hearing : 07.08.2023 : Date of Judgment:11.08.2023
D.Dash,J. The Appellant, by filing this Appeal from inside the jail, has called in question the judgment of conviction and the order of sentence dated 27th February, 2018 passed by the learned Additional Sessions Judge, Talcher, in C.T. (S) Case No.103 of Page 1 of 11 JCRLA No.42 of 2018 {{ 2 }} 2015 arising out of G.R. Case No.619 of 2015 corresponding to Kaniha P.S. Case No.127 of 2015 of the Court of the learned Sub- Divisional Judicial Magistrate (S.D.J.M.), Talcher.
The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, 8the IPC9). Accordingly, she has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for six (6) months.
2. Prosecution Case:-
In the night of 30.07.2015, it was between midnight to 2.00 a.m., accused Rilly Dehury is said to have caused the death of her husband Sriram Dehury (deceased) by means of a sharp cutting weapon and one Thenga. Sriram Dehury9s daughter (P.W.1), who was then around seven years old, was there in the house in the relevant night and his son (P.W.12), then aged about thirteen years, was working in a Dhaba, who came to the house in the morning and found his father lying dead with injury. The nephew of Sriram Dehury then lodged a written report with the Officer-in-Charge (OIC), Kaniha Police Station (P.W.13). Receiving the said written repot, the O.I.C. (P.W.13) treated the same as FIR (Ext.1) and registering the case, took up investigation.
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3. In course of investigation, the I.O. (P.W.13) examined the informant (P.W.2) and in the afternoon, went to the spot. She saw the dead body of Sriram (deceased) lying on the verndah of the house in a bleeding condition and persons to have gathered around. She there examined the accused, who remained silent and then examined the minor daughter of the deceased (P.W.1) and recorded her statement. She also examined other witnesses; held inquest over the dead body of the deceased and sent the same for post mortem examination by issuing necessary requisition. She prepared the spot map (Ext.14). She further seized the blood stained earth and sample earth and wooden block stained with blood from the spot under the seizure list (Ext.6). She also seized other incriminating articles and then arrested the accused on 01.08.2015 around 5.30 a.m. Then, it is said that the accused gave his statement before the I.O. (P.W.13) and told to have concealed the Paniki (Kitchen Knife) near the bushes under the heap of garbage and stated that she would give recovery of the same, if taken to that place. The statement, being recorded by P.W.13, the accused is said to have led her (P.W.13) and other witnesses to the place in giving recovery of that Paniki (Kitchen Knife), which was seized under the seizure list (Ext.5). The accused was forwarded in custody to the Court. The incriminating articles were sent for chemical examination through Court. Finally, on completion of the investigation, the Page 3 of 11 JCRLA No.42 of 2018 {{ 4 }} I.O. (P.W.13) submitted the Final Form placing the accused to face the Trial for commission of the offence under section 302 of the IPC.
4. Learned S.D.J.M., Talcher, on receipt of the Final Form, took cognizance of said offence 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 offence against the accused.
5. In the Trial, the prosecution, in order to establish the charge against accused, has examined in total sixteen (16) witnesses. Out of them, as already stated, the Informant, who had lodged the written report is P.W.2 and the witness, who had scribed the written report, is P.W.16. The sister of the informant (P.W.2) is P.W.1. Other independent witnesses are P.Ws.3, 4, 5 & 6. The Doctor, who had conducted the autopsy over the dead body of the deceased, has come to the witness box as P.W.7 and P.Ws.8, 9, 10 & 11 are the co-villagers. The son of the deceased has been examined as P.W.12 whereas the I.O. has come to the witness box as P.W.13.
6. 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 20. Out of those, important are the FIR (Ext.1); inquest report (Ext.2); Page 4 of 11 JCRLA No.42 of 2018
{{ 5 }} post mortem report (Ext.11); spot map (Ext.14) and the seizure lists are Exts.3, 5, 6, 7 & 10.
7. The plea of the accused is that of complete denial and false implication. The accused, being called upon, has, however, not adduced any evidence in support of said plea.
8. The Doctor, who had conducted the autopsy over the dead body of the deceased, has come to depose during Trial as P.W.7. It is his evidence that he had noticed three cut injuries on the posterior neck position, in the angle of mouth left side just above mandible and fore brain left side as also on the face when another cut injury on the right-side ear. He too had noticed a lacerated injury on the leg, back and maxilla. A hematoma on the chest had also been seen by P.W.7. As per his evidence, the death was on account of spinal shock due to cut injury in neck and it was a homicidal death. All these have been noted down by P.W.7 in his report (Ext.11). The I.O. (P.W.13), who had held inquest over the dead body of the deceased in presence of the witness has also in the inquest report, noted the injuries to have been seen. Other witnesses including P.Ws.2 & 3 have stated to have seen the deceased lying dead with injuries. We find that the defence has not challenged all said evidence during Trial and those are also not being impeached in course of hearing of this Appeal. We too also find that no cross-examination has been directed touching Page 5 of 11 JCRLA No.42 of 2018 {{ 6 }} upon the evidence of P.W.7 as regards the nature of death of the deceased to be homicidal. With such overwhelming evidence on record, we concur with the view of the Trial Court that the prosecution has proved the death of Sriram (deceased) to be homicidal.
9. Mr.Chiranjib Rout, learned counsel for the Appellant (accused) submitted that the entire case of the prosecution case rests on the evidence of P.W.1, who is stated to be the solitary eye witness to the occurrence, who is a child witness then aged about seven years that too the daughter of the deceased. He submitted that the Trial Court has not taken any such care as required under law while analyzing the evidence of P.W.1, who is certainly a witness interested in the success of the prosecution. He further submitted that this P.W.1 has having stated that she, after taking meal, had gone for sleep and woke up in the morning and, therefore, as the incident had taken in the dead of night, she had not seen the incident at all, which the Trial Court has ignored. He further submitted that when the evidence of P.W.2 is liable to be discarded, the other evidence available on record are not sufficient to hold that the prosecution has established the charge against the accused beyond reasonable doubt.
10. Mr.D.K.Mishra, learned Additional Government Advocate for the Respondent-State, while supporting the finding of guilt Page 6 of 11 JCRLA No.42 of 2018 {{ 7 }} against he accused, as has been returned by the Trial Court, has submitted that the evidence of solitary eye witness (P.W.1), has rightly been relied upon by the Trial Court in basing the conviction. He further submitted that the above referred statement of P.W.1 upon which emphasis is given by the learned counsel for the Appellant (accused) 2 is not to be read in isolation and when the entire evidence of P.W.2 is read in its entirety, that statement loses its significance to be so taken note for discarding her version by pushing beyond the arena of consideration. He further submitted that when the prosecution evidence is clear that the accused and the deceased were then in the house and that P.W.1, who is none other than the minor daughter of the deceased, as the accused is not providing any explanation as to what happened to the deceased that he received all such fatal injuries on vital part of his body, which was within her special knowledge, the prosecution case in that way also stands established.
11. 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 16) and have perused the documents admitted in evidence marked as Exts.1 to 20. Page 7 of 11 JCRLA No.42 of 2018
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12. In order to judge the sustainability of the finding of the Trial Court holding the accused to be author of the injuries resulting the death of Sriram (deceased), let us first of all examine the evidence of P.W.1. She is none other than the daughter of the deceased and she, being then aged about seven (7) years, was addressing the accused as Mausi. It is the evidence of the brother of P.W.1, i.e., P.W.12 that the accused is the second wife of her father Sriram (deceased), i.e., his step mother and she was residing in their house being so kept by his father as his own mother had died. The Trial Court, tested the capability of this witness (P.W.1) to depose in Court. Having put certain questions, those have been noted in the depositions and the answers given, have also been so reflected thereunder. The Trial Court has found those answers to be rationable, and, therefore, has proceeded to record her evidence. We find the exercise to be in consonance with the settled principles. It is the evidence of P.W.1 that the accused hacked her father by means of the Paniki (Kitchen Knife) in the night when she was with her father and the present accused (Mausi). It is also her evidence that her father was requesting the accused to leave him and not to assault. She has stated that the accused, after causing the injuries, covered a shawl over her father and threatened her to assault in case she would make any disclosure. She has also stated that on the next morning, her brother (P.W.12), who was working in a Dhaba, Page 8 of 11 JCRLA No.42 of 2018 {{ 9 }} arrived there after getting information. The witness, being cross- examined, she has clearly stated to be sleeping with the accused and the deceased in that night. It has been brought out in cross- examination that except them, none-else was present in the house. It has been stated by her that she had not come out of the house to attend call of nature. Her statement that in the occurrence night, after taking meal, she went for sleep and woke up in the morning is being seriously pressed into service to disbelieve her version as to have seen the incident. On the face of her clear and assertive evidence that she was sleeping in the place with the accused and the deceased and had seen the accused causing injuries upon the deceased despite his request not to proceed further, it is quite acceptable that when she has stated to have woke up in the morning thereby she did not convey that she had never woke up at point of any time during the night. The evidence of P.W.1 receives the corroboration from the evidence of P.W.11, who has stated that the accused is the second wife of the deceased and he has also stated that the accused was residing with the deceased. It is stated by P.W.11 that in the morning, a person, had been to their house and found that the deceased did not respond and then P.W.1 had told him that the accused had committed the murder of her father. He further states to have then gone to the house of the accused and there, P.W.1 also disclosed about the incident in the night before him by further Page 9 of 11 JCRLA No.42 of 2018 {{ 10 }} stating that the accused had threatened her not to disclose the incident by saying that if she would do so, she would be assaulted. We find that the said evidence of P.W.11 has not been shaken.
In addition to this, we find that of P.W.1 has stated that in the night, the accused, the deceased and she were sleeping in the house when non-else was there. This P.W.1, being the minor daughter of the deceased, the accused is not coming forward with any sort of explanation as to what happened in the night that Sriram received the injuries on his body and met a homicidal death when such facts were within her special knowledge. With the above foundational facts being proved from the side of the prosecution, the burden of proof, having shifted on the shoulder of the accused, the same remains unexplained by the accused either by leading evidence or eliciting anything from the prosecution witnesses. Thus the prosecution case in that way even conceding for the sake of argument that P.W.1 had not seen the actual incident as to how her father (deceased) received those injuries, the authorship of the injuries are to be attributed to this accused alone and none-else.
13. With the above available evidence on record, without going to examine the evidence let in by the prosecution as regards the recovery of the weapon at the instance of the accused, we are of the considered view that the accused has been rightly convicted Page 10 of 11 JCRLA No.42 of 2018 {{ 11 }} by the Trial Court for committing the offence of murder under section 302 of the IPC in intentionally causing the death of Sriram Dehury.
14. In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 27th February, 2018 passed by the learned Additional Sessions Judge, Talcher, in C.T.(S) Case No.103 of 2015 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: 17-Aug-2023 16:49:27 Page 11 of 11 JCRLA No.42 of 2018