Orissa High Court
Tuan Khan vs State Of Odisha on 24 July, 2023
Bench: D.Dash, S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.3 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 26th July, 2008 passed by the
learned Additional Sessions Judge (F.T.C.), Bargarh, in Criminal
Trial No.42/4 of 2008.
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Tuan Khan .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mr.Jugal Kishore Panda
(Advocate)
For Respondent - Mr.S.K. Nayak,
Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K. PANIGRAHI
Date of Hearing : 04.07.2023 : Date of Judgment:24.07.2023
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 26th July, 2008 passed by the learned Additional Sessions Judge (F.T.C.), Bargarh, in Criminal Trial No.42/4 of 2008 Page 1 of 10 JCRLA No.3 of 2018 {{ 2 }} arising out of G.R. Case No.224 of 2007 corresponding to Bargarh P.S. Case No.119 of 2007 of the Court of the learned Sub- Divisional Judicial Magistrate (S.D.J.M.), Bargarh.
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, he has been sentenced to undergo imprisonment for life for the said offence.
2. Prosecution Case:-
One Siba Charan Barik (deceased) was staying at Pipilipali, Tikirapada Canal Chowk with his family having taken a house on rent since 2000. The accused was staying in his house at a distance of 150 meters from the house where the deceased and his family members were residing. The deceased was then working as a Peon in Union Bank, Bargarh Branch whereas the accused was an umemployed boy aged about 25 years. The accused was in the habit of consuming liquor and for that, he used to take money from the deceased. When the deceased was demanding payment of his money, the accused used to avoid. On 02.04.2007, the deceased abused the accused and there was hot exchange of words. On the next day, the deceased was on leave and it was around 11.00 a.m, he left his house to purchase some grocery items. When the deceased was standing near the Pucca Mandap at Canal Chhak and watching the game being played by the Page 2 of 10 JCRLA No.3 of 2018 {{ 3 }} people of the locality, the accused arrived there and he then pushed the deceased, who fell down. It is then stated that the accused after such fall of the deceased on the ground, gave successive blows on his chest and other parts of the body by means of a knife. Srikanta Kalet (P.W.3), Rama Rao (P.W.4) and Keshab Tarai and others, being present at the spot, had seen the incident, which took place before them.
On 03.04.2007 around 12.30 p.m., the Officer-in-Charge (O.I.C.) of Bargarh Police Station (P.S), receiving an information over telephone regarding the murder of a person at Pipilipali, an entry of the said fact in the Station Diary Book maintained at the P.S., directed the Sub-Inspector (S.I.) of Police (P.W.9), who rushed to the spot with other police personnels. The O.I.C. also accompanied them. At the spot, the O.I.C. received a written report from Jagnayaseni Barik, the wife of the deceased. The same being treated as FIR (Ext.1), investigation was taken up by the S.I. of Police (P.W.9).
3. In course of investigation, the Investigating Officer (I.O.- P.W.9) examined the Informant (P.W.1) and recorded his statement and those of other witnesses under section 161 of the Code of Criminal Procedure, 1973. Having made the spot visit, he prepared the spot map (Ext.8). He also seized the sample earth and bloodstained earth under the seizure list. He then having Page 3 of 10 JCRLA No.3 of 2018 {{ 4 }} held inquest over the dead body of the deceased, prepared his report (Ext.2) and sent the dead body of the deceased for post mortem examination by issuing necessary requisition. The accused thereafter was arrested on 6.00 p.m. It is said that the accused, while in police custody, gave a statement as to the keeping of the knife by him in a place known to him. The statement was recorded under Ext.6 and thereafter, the accused led the I.O. (P.W.9) and others up to the verandah of his house and gave recovery of the knife, which had been kept under a lump of earth. The knife was seized under seizure list (Ext.7). 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 of the IPC.
4. Learned S.D.J.M., Bargarh, 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. The prosecution, in support of its case, has examined in total nine (9) witnesses during trial. As already stated, P.W.1 is the wife of the deceased and the informant of the case. P.Ws.2, 3 & 4 are the co-villagers of the deceased. The son of the deceased is P.W.5. The Doctor, who had conducted the post mortem Page 4 of 10 JCRLA No.3 of 2018 {{ 5 }} examination over the dead body of the deceased has been examined as P.W.6 whereas the Doctor, who has examined the accused has come to the witness box as P.W.7. P.W.8 is the witness to the statement of the accused whereas the I.O. of the case has been examined as P.W.9.
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 15. Out of those, important are the FIR (Ext.1); inquest report (Ext.2); post mortem report (Ext.3); and the statement of the accused (Ext.6) as also the Chemical Examiner9s report (Ext.15).
6. The plea of the accused is that of complete denial and false implication. No evidence has, however, been tendered from the side of the accused in support of his evidence.
7. The Trial Court, upon examination of the evidence of the Doctor (P.W.6), who had conducted the autopsy over the dead body of the deceased and his report (Ext.3) as well as the the evidence of the I.O. (P.W.9), who held the inquest over the dead body of the deceased and series of others witnesses, who had seen the deceased with injuries all over his body, has come to the conclusion that the death of Siba Charan was homicidal in nature. In fact, this aspect of the case was not under challenge before the Trial Court and that is also the situation before us in this Appeal. Page 5 of 10 JCRLA No.3 of 2018
{{ 6 }}
8. In the present case, the deceased on being examined by P.W.6, was found to have sustained nine number of injuries; most of which are incised wounds all over the body. This P.W.6 has indicated the sizes of each of the incised wounds and their seat. All these injuries are said to be ante mortem in nature and the death, according to him, is due to haemorrhage and shock resulting from injuries to the vital organs like lungs, liver and major vessel of the neck. P.W.6 has further stated that the death was homicidal in nature and had taken place within 24 hours of his examination. Having examined the seized knife, his opinion was that all such injuries are possible by using that knife, which he has reiterated while deposing on oath. He has further stated that the death was homicidal. The I.O. (P.W.9), having held the inquest over the dead body of the deceased, has also noted all such injuries in his inquest report (Ext.2). Other witnesses to have stated the deceased to be lying with several incised wounds over the body.
With such voluminous evidence on record, which have remained unquestioned, we find absolutely no difficulty in agreeing with the finding of the Trial Court that Siba Charan (deceased) met a homicidal death.
9. Mr.J.K. Panda, learned counsel for the Appellant (accused) submitted that without proper examination of the evidence let in Page 6 of 10 JCRLA No.3 of 2018 {{ 7 }} by the prosecution witnesses, who have been projected as the eye witnesses and without the critical analysis and noting the discrepancies, which are appearing in the evidence of all these witnesses, which are on material aspects of the case, the Trial Court has gone in wrong holding the accused to have caused all such injuries by means of the knife on the body of the deceased and as such, has intentionally caused his death.
10. Mr.S.K. Nayak, learned Additional Government Advocate for the Respondent-State, submitted that here the important eye witnesses are P.Ws.2, 3 & 4 and their evidence is quite consistent and at par with one another. According to him, the Trial Court has analyzed the evidence of all the witnesses from every possible angle in ultimately concluding that the prosecution has established the charge against the accused beyond reasonable doubt by leading clear, cogent and acceptable evidence and that is not liable to be interfered.
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 9) and have perused the documents admitted in evidence marked as Exts.1 to 16.
12. In order to address the rival submission, the evidence of P.W.3 be first taken up for examination. He has stated to have Page 7 of 10 JCRLA No.3 of 2018 {{ 8 }} seen the accused dealing the blows upon the deceased. He has also stated that the accused first gave push to the deceased and when he fell down, the accused dealt successive knife blows on his chest. The response and immediate reaction of the witness is that of a reliable man. He states to have attempted to separate the accused but it could not be possible because the accused showed the knife at him. He states to have then proceeded to his house and again came to the spot and then found the deceased to have died. He has stated that one Sanjay Kumar Saha (P.W.2), Rama Rao (P.W.4) and Mantribara Sahu had also seen the incident. On a careful reading to the deposition of this witness, we find that absolutely no attempt has been made during the cross- examination to create slightest doubt in the mind as regards the evidence of this witness to have seen the accused giving successive blows on the chest of the deceased after his fall on account of the push from the accused. We have absolutely no reason or justification to raise our slightest doubt over veracity of the evidence of P.W.3.
P.W.4, who has been named by P.W.3 to have seen the occurrence, has also stated that at that time, the deceased was behind him and the accused was standing in his front. He has further stated that the accused, after asking the deceased, dealt knife blows on his chest and abdomen and he claims to be the person to have telephonically informed the I.O. (P.W.9). No Page 8 of 10 JCRLA No.3 of 2018 {{ 9 }} material has been elicited from P.W.4 to doubt his presence at the spot at the relevant time with P.W.3. When P.Ws.3 & 4 have stated that the accused dealt successive blows on the chest and abdomen of the deceased by means of a knife, the evidence of the Doctor (P.W.6), who had conducted the post mortem over the dead body of the deceased, provide full support when he says to have noticed nineteen injuries most of which are incised and grievous.
13. P.W.2 although has not stated to have seen the actual assault, being made by the accused upon the deceased, he has stated to have seen the deceased at the spot with injuries. The FIR lodged by the informant (P.W.12) finds clear mention that the deceased told the informant that the accused dealt blows on him. The said statement of the deceased made before the informant (P.W.1) is wholly admissible in evidence as the dying declaration. There is nothing to doubt the version of P.W.1 especially when that finds corroboration from the narration made in the FIR (Ext.1). it is also not expected from a person at moment that having received huge number of incised wound over the body of the deceased, he then would falsely implicate anyone when his death was just a matter of time. Merely because the witnesses whose evidence as already discussed are interested, as being termed by the learned counsel for the Appellant, that is no Page 9 of 10 JCRLA No.3 of 2018 {{ 10 }} ground to disbelieve them as to their version regarding the occurrence, which under the circumstances, narrated by these witnesses clearly proved beyond reasonable doubt.
14. On a conspectus of analysis of the evidence hereinabove, this Court finds that the prosecution has proved its case against the accused as having committed the murder of Siba Charan beyond reasonable doubt
15. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 26th July, 2008 passed by the learned Additional Sessions Judge (F.T.C.), Bargarh, in Criminal Trial No.42/4 of 2008 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 10 of 10 JCRLA No.3 of 2018