Orissa High Court
Chandra Sekhar Bahalia @ Baja vs State Of Orissa on 17 October, 2019
Equivalent citations: AIRONLINE 2019 ORI 219, (2019) 76 OCR 935 (2020) 205 ALLINDCAS 594, (2020) 205 ALLINDCAS 594, (2020) 205 ALLINDCAS 594 (2019) 76 OCR 935, (2019) 76 OCR 935
Author: A.K. Mishra
Bench: S.K. Mishra, A.K. Mishra
ORISSA HIGH COURT: CUTTACK
CRA No. 145 of 1998
(From the judgment and order dtd. 24.06.1998 passed by Shri N.B.K. Murty, Addl.
Sessions Judge, Kendrapara in Sessions Trial Case No.20/190/1997.)
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Chandra Sekhar Bahalia @ Baja ........ Appellant
-Versus-
State of Orissa ...... Respondent
For Appellant :M/s. Devashis Panda, D.C. Swain,
S. Mishra.
For Respondent :Mr. J. Katikia (Addl. Govt. Advocate)
P R E S E N T :-
THE HONOURABLE MR. JUSTICE S.K. MISHRA
AND
THE HONOURABLE DR. JUSTICE A.K. MISHRA
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Date of Hearing:-28.08.2019 & Date of Judgment :- 17.10.2019
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Dr. A.K. Mishra, J. In this appeal, the appellant-Chandra Sekhar
Bahalia @ Baja has assailed his conviction U/s. 302 of Indian Penal
Code (hereinafter referred to as "I.P.C." for brevity) and sentence to
undergo life imprisonment and fine of Rs.10,000/- in default to
undergo rigorous imprisonment for three years passed by the Addl.
Sessions Judge, Kendrapara vide judgment dated 24.06.1998 in
S.T. Case No.20/190/1997.
2. Tersely put, the appellant was tried for filicide of his
deceased-son, Debasis, while sleeping in the bedroom with his wife-
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P.W.6, daughter-P.W.7 and two sons (deceased-Debasis and
Snehasis) on 13.02.1997 at about 11 P.M. night in his native at
Kesharpur. As per accusation, the accused stabbed his three
children and wife by means of knife-M.O.I (vegetable cutter), as a
result of which his wife and children suffered injuries. Deceased-
Debasis succumbed to cut injuries on his neck. The wife-P.W.6
could not resist. She yelled.
Hearing hallah, the informant-the father of the accused
and neighbours came and took the injured persons to Kendrapara
Hospital. The Deceased- Debasis was found dead, while the wife and
two other children were treated for their injuries by the Doctor. The
father of the accused on next day orally reported the matter at
Kendrapara P.S. which was reduced into writing (Ext.3) and was
registered vide Kendrapara P.S. Case No.41/97 for the offence
U/s.302/323 and 326 of IPC.
In course of investigation, inquest and post-mortem were
made. The accused was found to have concealed himself in the
ceiling of a thatched house adjacent to the spot. He led discovery of
weapon of offence i.e. knife, which was seized by the I.O. under
seizure list-Ext.2. The seized weapon was sent for chemical
examination and found to have stained with human blood.
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After completion of investigation, charge-sheet was
submitted. The case was committed to the Court of Session. The
accused faced trial for the charge of offence U/s. 302 of IPC.
2.(a) Accused took the plea of alibi in defence.
2.(b) Prosecution examined 11 witnesses in all. Defence
examined none. Inquest report, post-mortem report, F.I.R. and
chemical examination report as well as injury report and seizure list
are marked as Ext.1 to 11.
P.W.1 is Umesh Ch. Bahalia who is a witness to the
inquest. P.W.2 is auto-rickshaw driver, who took the deceased and
the injured persons to the hospital. P.W.3 is Bijaya Kumar Bahalia,
who is a post-occurrence witness. P.W.4 is the informant, who is the
father of the accused. P.W.5 -Dhirendra Bahalia is a post occurrence
witness, who brought the Tempo to take the injured persons to
Kendrapara hospital for treatment. P.W.6-Saraswati Bahalia, who is
the wife of the accused and P.W.7- Debasmita Bahalia, daughter of
the accused who is the eye-witness to the occurrence. P.W.8 is the
Medical Officer, who conducted post-mortem. P.W.9 is a post
occurrence witness and witness to seizure. P.W.10 is the Medical
Officer who examined the injured. P.W.11 is the Investigating Officer.
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2.(c) Learned trial court disbelieved the plea of alibi. He found
the witnesses i.e. P.W.6 and P.W.7, who are the wife and daughter of
the accused as reliable eye-witnesses. He also held that recovery of
knife-M.O.-I at the instance of accused is a fact, corroborative to the
oral testimonies of the eye-witnesses. Accordingly, he convicted the
accused U/s.302 of IPC and sentenced as stated above.
2.(d) Learned Senior Counsel for the appellant-Mr. Devasish
Panda would submit that the learned trial court has committed error
in Law by relying upon the statement recorded U/s. 161 of Cr.P.C.
and also relying upon the discovery statement which is not recorded
separately. He further submits that P.W.7 being a child is not a
reliable witness.
According to him, when the motive behind the crime is
not established, the complicity of the accused cannot be said to have
been proved beyond reasonable doubt and for that the conviction
should be set aside.
Learned Addl. Govt. Advocate, Mr. J. Katikia supports
the conviction and sentence on the ground that the eye-witnesses
are injured persons and motive is not required to be proved when
case is proved by eye-witnesses.
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3. The situational facts, as evidenced and not disputed,
reveal that the scene of crime was the bedroom where the accused
and his wife (P.W.6), three children including deceased and P.W.7
were sleeping on a cot after taking supper on 13.02.1997. Informant-
P.W.4 and neighbours (P.W.2. P.W.3 and P.W.5) approached the spot
soon after incident and saw the wife and children with bleeding
injuries. P.W.2-Karunakar Bahalia, auto-rickshaw driver shifted the
injured to hospital. Doctor treated injured wife-P.W.6, children
namely Debasmita-P.W.7, and deceased son-Debasis Bahalia. But
the deceased was found dead.
3.(a) P.W.6 has stated that the accused is her husband. The
deceased is her son. The incident took place in between 10 to 11
P.M. The accused took his meal and slept in the bedroom prior to
her. In the said room, her daughter Debasmita, deceased Debasis
and younger son Snehasis were also sleeping. After completion of
work, she went to sleep there. While she was in asleep, she heard
sound and got up. The accused gave a blow by means of a knife on
her forehead. She sustained injury on her right palm. She tried to
come out from the room. In the mean time, the accused gave a knife
blow on her younger son on his neck and she brought him out and
again went inside the bedroom. When she wanted to bring her
daughter by holding her, the accused gave a cut blow on the neck of
her deceased son Debasis by means of knife. Thereafter when she
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wanted to save her son, the accused gave another blow in her head
by means of knife. The accused also gave blow to her daughter on
her lips, chin and neck by means of knife causing bleeding injuries.
She brought out her children and closed the doors. Thereafter people
came and took them in a Tempo to Kendrapara Hospital.
P.W.7 has stated that the accused is her father.
Deceased Debasis is her elder brother. The accused gave a blow to
Debasis by means of a knife to his neck. She herself, her brothers
and her parents were in the bedroom at the time of incident. On
hearing hullah of her mother, she got up and found her father was
assaulting her mother. Her father also assaulted to her on lips, chin
and neck causing injuries. The accused also assaulted her younger
brother by means of knife to his neck. She stated that her mother
took us to outside.
3.(b) P.W.10-Dr. Khetramohan Swain found following injuries
on P.W.6- wife of the accused:-
i. incised wound of size 3 cm. x 1 cm. X bone depth over frontal
aspect of head.
ii. Two incised wounds measuring 3 x ½ x ½ cm. over left side of the
neck.
iii. One incised wound of size 1 ½ x 1 cm. X 1 cm. over left thumb.
iv. Incised would 1 x ½ x ½ cm. over right fore arm.
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He found following injuries on Debasmita Bahalia-
P.W.7:-
i. Incised wound 3 x 1 x ½ cm. over right side neck.
ii. Incised wound 3 x 1 x ½ cm. over anterior aspect of neck.
iii. Incised wound 2 x 1 x ½ cm. over right side of neck.
iv. Incised wound of 3 x 1 x ½ cm. over the cheek.
v. Incised wound 2 x ½ x ½ cm. over lower lip.
vi. Incised wound of 2 x ½ x ½ cm. over left side of the neck.
vii. Multiple small incised wounds of 1 mm. x 2 mm. over right
fore arm.
He also examined Snehasis Bahalia, younger son of the
accused and found the following injuries:-
1. Incised wound 5 x ½ x 1 cm. over anterior neck.
2. Incised wound 3 x 1 x 1 cm. of right side neck.
3. One incised wound 3 x 1 x 1 cm. over right side neck.
4. One incised wound 3 x 1 and half x 1 cm. over left side neck.
5. Incised wound 1cm. x ½ x ½ cm. on right thumb.
6. Incised wound 3 x 1 x 1 cm. and half cm. over left side neck.
He opined that all the injuries found on above named
injureds except injury no.1 of Snehasis were simple in nature.
Snehasis was referred to SCB Medical College and Hospital for injury
no.1.
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From the above, the eye-witnesses are found to have
sustained injuries. Their testimonies inspire confidence and stand in
high pedestal of truth and trustworthiness.
4. P.W.8, the Doctor conducted post-mortem vide Ext.4 on
deceased and found sharp cutting injury present in front of neck
below the thyoid bone of size of 4 x ½ x ½ inch and blood stains
present on the neck. He opined that the injury was ante-mortem in
nature. According to him, the injury caused profuse haemorrhage
outside the body. He stated that the cause of death was due to
haemorrhage and shock. Beyond doubt, the prosecution is thus
found to have proved that the death of deceased was homicidal in
nature.
The deceased, injured and accused are related. Wife-
P.W.6 and minor daughter (P.W.7), both injured, testified against
accused as author of the injuries not only on their person but also
on the body of deceased to which he succumbed. Their presence
inside the bedroom is the natural consequence to their living traits.
Statement of P.W.6 was found contradicted, through the
Investigating Officer-P.W.11, to the extent that P.W.6 has not stated
before him that:-
"the accused gave blow to her elder son. P.W.6 has
not stated before him that she again went to the
bedroom and found the accused was holding her
daughter and gave a blow to Debasis on his neck by
means of knife and when she wanted to save her son-
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Debasis, the accused gave a blow on her hand by
means of knife. P.W.6 has also not stated before him
that the accused gave a blow to his daughter by
means of knife and she sustained injuries on her lips
and chin and brought her children to outside and
closed the door. She has also not stated before him
that she brought her children to another house where
Debasis died. She has not stated before him that
while she was snatching the knife she sustained
injury on her right palm. She has not stated before
him that she found the accused giving blows to her
son Debasis."
4.(a) The evidence of wife-P.W.6 is questioned to be unreliable
for the contradiction brought out with her earlier statement recorded
U/s. 161 Cr.P. C. The trial court has found that "the variance of her
statement to the effect that in her statement U/s. 161 Cr.P.C., she
found that the accused cut the neck of Debasis after she got up from
sleep on receipt of blow. Whereas in her evidence she said, she again
went inside the room to bring her daughter and the accused by
holding her gave a cut blow on the neck of the deceased son Debasis
by means of knife. Therefore, the fact remains she had seen the
accused giving a cut blow to the neck of Debasis by means of knife.
There is no variance in such statement before police and in the Court."
Learned Senior Counsel, Mr. Panda submits that the
trial court has committed error in using statements of P.W.6
recorded U/s. 161 Cr.P.C. as substantive evidence and for that the
judgment is vulnerable under law.
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4.(b) Hon‟ble Apex Court in the decision reported in 2010 (I)
OLR (SC) 556 in the case of Md. Ankoos and others vrs. The
Public Prosecutor, High Court of A.P., has clarified that as
follows:-
"24. A criminal court can use the case diary in the aid
of any inquiry or trial but not as an evidence. This
position is made clear by Section 172(2) of the Code.
Section 172(3) places restrictions upon the use of case
diary by providing that accused has no right to call for
the case diary but if it is used by the police officer who
made the entries for refreshing his memory or if the
Court uses it for the purpose of contradicting such
police officer, it will be so done in the manner provided
in Section 161 of the Code and Section-145 of the
Evidence Act. Court's power to consider the case diary
is not unfettered. In light of the inhibitions contained in
Section 172 (2), it is not open to the Court to place
reliance on the case diary as a piece of evidence
directly or indirectly."
4.(c) In a decision reported in 1990 Criminal Law Journal
1605, in the case of Mahavir and another vrs. State of U.P., it is
stated that "Court can look into the case diary of the case itself but
cannot rely on it unless its extracts are proved after confronting the
same to the witness concerned under Section 162 Cr.P.C."
4.(d) With regard to the method of proving the contradiction,
the Hon‟ble Apex Court in the decision reported in 2015 (9) SCC 588
in the case of V.K. Mishra & another vrs. State of Uttarakhand &
another, has stated in para-18 as follows:-
"Section 145 of the Evidence Act, , it is said, empowers
the accused to put all relevant questions to a witness
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before his attention is called to those parts of the writing
with a view to contradict him. In support of this
contention reliance is placed upon the judgment of this
Court in Bhagwan Singh vrs. The State of Punjab
reported in AIR 1940 All. 291. Describes the procedure
to be followed to contradict a witness under Section 145
of the Evidence Act thus at page. 819 "Resort to section
145 would only be necessary if the witness denies that
he made the former statement. In that event, it would be
necessary to prove that he did, and if the former
statement was reduced to writing, then Section 145
requires that his attention must be drawn to those parts
which are to be used for contradiction."
4.(e) The point raised by the learned counsel for the appellant
is well answered in the Constitutional Bench Judgment of Hon‟ble
Supreme Court in the case of Tahsildar Singh and Another vrs.
The State of Uttar Pradesh reported in AIR 1959 SC 1012, wherein
it is stated that "It is for the trial Judge to decide in each case after
comparing the part or parts of the statement recorded by the police
with that made in the witness-box, to give a ruling, having regard to
the aforesaid principles, whether the recital intended to be used for
contradiction satisfies the requirements of law."
4.(f) The purpose of bringing contradiction is to test the
reliability of the witnesses. In case of material contradiction, his
credibility can be put to test, if the development from earlier to
present is so glaring that his version is exposed to reasonable doubt.
A doubtful version cannot form the basis to infer a fact which the
Law necessitate to be established beyond reasonable doubt.
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We carefully read this part of analysis of the evidence of
P.W.6-wife of the accused made in para-11 of the impugned
judgment. What learned trial Judge has done, is nothing but
verification of the contradicted portion to find its impact on the
credibility of the witness P.W.6. He has not used the statement
recorded U/s. 161 Cr.P.C. to base conviction.
5. P.W.7-Debasmita Bahalia corroborates her mother. Her
evidence is challenged as a child witness and was tutored by mother
and grandfather. By the time of incident, she was aged about 9 years
and 1 month and she deposed on 21.03.1998.
In the case of Bhagwan Singh and others vrs. State of
Madhya Pradesh reported in (2003) 3 SCC 21, it is held that the
evidence of child is required to be evaluated carefully because he is
an easy prey to tutoring and always court looks for adequate
corroboration from other evidence to his testimony.
In another case reported in (2012) 8 SCC 73, K.
Venkateshwarlu vrs. State of Andhra Pradesh, it is stated in para-
9 that:-
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9. xxx xxx xxx. It is safe and prudent to
look for corroboration for the evidence of a child
witness from the other evidence on record,
because while giving evidence a child may give
scope to his imagination and exaggerate his
version or may develop cold feet and not tell the
truth or may repeat what he has been asked to
say not knowing the consequences of his
deposition in the court. Careful evaluation of the
evidence of a child witness in the background and
context of other evidence on record is a must
before the court decides to rely upon it."
The location of the incident, its time and their ways of
living lead us to believe that not only she was a natural witness as
an injured but also testified what had she experienced as a victim
due to overt act of her father-accused. She neither claims nor can we
attribute after reading her testimony in a plain way, that her version
was a tutored one. Rather being cogent and clear is acceptable U/s.
118 of the Evidence Act. She gets corroboration from her mother‟s
evidence.
6. In the case at hand, the scanning of the evidence of
P.W.6 qua the contradiction does not show that she has given a
material departure from her direct knowledge which she had seen
that her husband had sliced the neck of her deceased son resulting
death and had inflicted injuries in the same process to her and two
other children. This being the consistent core throughout, we accept
P.W.6 as a trustworthy and reliable witness, so also P.W.7. P.W.6
does not speak to rope her husband guilty if he is not true
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perpetrator. P.W.7, minor daughter is an injured. She has seen her
brother‟s murder and innocently spoke truth which unfortunately
implicated and incriminated her father.
7. Once the eye-witnesses prove the guilty of accused, the
motive behind murder becomes immaterial because Law does not
insist to prove motive as an essential ingredient of an offence.
8. The evidence of Investigating Officer-P.W.11 and seizure
witness-P.W.9 prove that accused was arrested while he was found
concealed in a „SANGHA‟ (ceiling) in a thatched house near the spot.
The accused being the father of the deceased did not react in the
manner expected from an ordinary man in the situation. On his
instance, the „knife‟ was found under the cot at spot which is marked
as M.O.I. The said knife was a vegetable cutter. As per chemical
examination report vide Ext.10, it was stained with human blood.
The place from where accused was found, was so proximate to the
place of recovery that non-recording of exact version of leading to
discovery statement in the seizure list-Ext.2 cannot be said to be an
infirmity to discard its admissibility U/s.27 of the Evidence Act. Here
the knowledge of accused as to a blood stained knife lends
assurance to the testimonies of the eye-witnesses, P.Ws.6 and 7.
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9. The plea of alibi taken by the accused is not shown to
have any sustainability from any thread of evidence on record. Such
false plea fortifies the finding of guilty already proved by the eye-
witnesses.
On independent analysis of the evidence of record, we
find no error in the appreciation of the trial Court. The conviction of
appellant U/s. 302 of IPC recorded thereon suffers from no illegality.
The sentence awarded is the minimum prescribed. The conviction
and sentence do not warrant any interference in this appeal.
In the result, the appeal stands dismissed.
LCRs. be returned immediately to the lower court.
...........................
Dr. A.K. Mishra, J.
S.K. Mishra, J. I agree.
......................... S. K. Mishra, J.
Orissa High Court, Cuttack. Dated the, 17th October, 2019/RRJena