Orissa High Court
Tankadhar Jani vs State Of Odisha on 19 May, 2023
Bench: D.Dash, S.K.Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.185 of 2018
In the matter of an Appeal under section 374 (2) of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and
order of sentence dated 18.02.2012 passed by the learned Sessions
Judge, Koraput at Jeypore in Criminal Trial No.199 of 2010.
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Tankadhar Jani .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr.Biswajit Nayak,
(Advocate)
For Respondent - Mr.Sitikant Mishra,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
DR. JUSTICE S.K.PANIGRAHI
Date of Hearing : 09.05.2023 : Date of Judgment: 19.05.2023
D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and the order of sentence dated 18.02.2012 passed by the learned Sessions Judge, Koraput at Jeypore in Criminal CRLA No.185 of 2018 {{ 2 }} Trial No.199 of 2010 arising out of G.R. Case No.470 of 2010 corresponding to Koraput Sadar P.S. Case No.59 of 2010 of the Court of learned Sub Divisional Judicial Magistrate (SDJM), Koraput.
The Appellant (accused) has been convicted for commission of offence under section 302 of the Indian Penal Code, 1860 (in short, 'IPC') and sentenced thereunder to undergo imprisonment for life
2. Prosecution case is that Keshaba Jani, had received some amount on behalf of his mother for the purpose of construction of one house under Indira Awas Yojna. The accused being the brother of Keshaba, was demanding his share over that amount which Keshaba was refusing to part with on the ground that he would construct a house for his mother and spend the same for the purpose. When the matter stood thus, on 11.08.2010 around 7 p.m., the accused coming out of his house was abusing Keshaba. When Keshaba challenged, accused gave some fist and slaps. The son of Keshaba (P.W.1) with his mother (P.W.7) hearing the same, came out of of the house and intervened in the matter. It is stated that accused then stabbed Keshaba (deceased) with a knife at his belly which led to his death.
The son of Keshaba (deceased) i.e. P.W.1 reported the matter at Koraput Sadar Police Station addressing it to the Inspector-in-Charge (IIC). In the absence of IIC, the Sub-Inspector (SI) of Police attached to that police station (P.W.12) treated the same as FIR and registered the case. She immediately took up investigation.
3. In course of investigation, she examined the informant (P.W.1) and other witnesses. She then visited the spot and seized the blood stained and sample earth. She also held inquest over the dead body of the deceased and prepared the report to that effect (Ext.3). The I.O (P.W.12) then issued necessary requisition for Post Mortem CRLA No.185 of 2018 {{ 3 }} Examination of the dead body. The accused was arrested and his wearing apparels were seized so also the knife which was produced by the accused. The wearing apparels of the deceased were seized on production after Post Mortem Examination. All these incriminating articles were sent for chemical examination to the Regional Forensic Science Laboratory, Berhampur through Court. Subsequently, the IIC of Koraput Sadar Police Station took charge of the investigation and on completion of the investigation, submitted the Final Form placing the accused to face the Trial for commission of offence under section 302 of the IPC.
4. Learned SDJM, Koraput receiving the Final Form as above, took cognizance of the offence and after observing the formalities committed the case to the Court of Sessions. That is how the Trial commenced by framing charge against the said offence against the accused.
5. In the Trial, the prosecution in total has examined Twelve (12) witnesses; out of whom as already stated P.W.1, who is the son of the deceased and the informant, who had lodged the FIR (Ext.1). P.W.3 and P.W.5 are the witnesses to the inquest whereas P.W.7 is the wife of the deceased and mother of P.W.1, who too is projected as an eye witness to the incident. The Doctor, who had conducted autopsy over the dead body of the deceased, has been examined as P.W.11 and P.W.12 is the main Investigating Officer.
The prosecution besides leading the evidence by examining the above witnesses has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.13. Of those the important are the FIR (Ext.1), the Inquest Report (Ext.3), the Post CRLA No.185 of 2018 {{ 4 }} Mortem Report (Ext.7), spot map (Ext.9) and the Report of the Chemical Examiner (Ext.13). In the Trial, the seized knife as well as the wearing apparels of the deceased and accused have been produced as Material Objects (M.O-I to M.O.-VI).
6. The Trial Court having examined the evidence of the Doctor (P.W.11) and his report (Ext.7) as well as the evidence of I.O (P.W.12) and other witnesses has arrived at a conclusion that the death had occasioned on account of the infliction of the stab injury on the belly of the deceased. The death thus having found to be homicidal, the Trial Court has proceeded to examine the other evidence on record. Relying upon the ocular testimony of P.W.1 and P.W.7, who are the son and wife of the deceased respectively; further taking into account, the seizure of knife (M.O.-I) from the possession of the accused as also the opinion of the Doctor (P.W.11) that the injury on the belly is possible by that knife (M.O.-I), has found the accused guilty for commission of offence under section 302 of the IPC. Accordingly the accused has been convicted and sentenced as aforestated.
7. The plea of the defence is that of denial. The accused has led no evidence in support of his case.
8. Learned counsel for the Appellant (accused) submitted that the Trial Court without properly analyzing the evidence of P.W.1 and P.W.7, who are highly interested witnesses being the son and wife of the deceased has held the accused to be the author of the stab injury on the belly of the deceased. He further submitted that the suspicious circumstances emanating from the evidence of P.W.1 and P.W.7 as well as from the facts and circumstances as are evident with other evidence CRLA No.185 of 2018 {{ 5 }} having not been taken into account in their proper perspective, the Trial Court has erred both on fact and law in placing reliance upon the evidence of P.W.1 and P.W.7 in holding with the prosecution has proved the charge against the accused beyond reasonable doubt. It was alternatively submitted that on a careful reading of the evidence of P.W.1 and P.W.7, when it would be evident that the happenings as to the occurrence right from the beginning till the deceased received the blow are not being properly presented and some element of suppression surface giving rise to a doubt in mind as to how and under what circumstances, the deceased received the knife on his belly and that too on the face of the evidence of the Doctor (P.W.11) that the deceased had also received one fatal injury on his head about which these two witnesses P.W.1 and P.W.7 are silent; even for the act and the role played by the accused; he ought not to have been held liable for commission of offence under section 302 of the IPC and at best he would have been held liable for commission of offence under section 304-I of the IPC.
9. Learned counsel for the State-Respondent submitted all in favour of the finding rendered by the Trial Court holding accused guilty for commission of offence under section 302 of the IPC. He submitted that the evidence of P.W.1 and P.W.7 running on the score that it is the accused, who caused the stab wound on the belly of the deceased by means of knife which has been seized in course of investigation from his possession and on his production when the evidence of the Doctor (P.W.11) is clear that it can cause that stab wound; as that has been said to be one of the fatal injuries leading to the death of the deceased and is sufficient in ordinary course of nature to cause death, the accused has CRLA No.185 of 2018 {{ 6 }} rightly been held liable for commission of offence under section 302 of the IPC.
10. Keeping in view the submissions made, We have carefully read the judgment of conviction impugned in this Appeal. We have also gone through the depositions of all the witnesses more particularly P.W.1 and P.W.7, who happen to be the son and wife of the deceased respectively. We have also perused the documents which have been admitted in evidence and marked Ext.1 toExt.13.
11. In addressing the rival submission and thereby to judge the sustainability of the finding of guilt returned by the Trial Court as against the accused, we are now called upon to the examine the evidence on record.
12. The son of the deceased, who is the informant and has lodged the F.I.R. (Ext.1) examined as P.W.1, has stated that one year prior to the deposition given by him in Court; on one Wednesday, the incident took place. As per his evidence, on that day, accused Tankadhar, who is his elder father (father's elder brother) came to his house and rebuked his father (deceased) demanding his share in the money given for construction of the house of his grand-mother under Indira Awas Yojana. He states that as his father refused to give any share to the accused and, therefore, the accused went away. It is his evidence that in the night around 7.30. p.m., the accused again came and renewed his demand and when the father of this P.W.1 (deceased) again refused; the accused dealt fist and slaps on his father. It is his further evidence that when he, his wife and mother rescued his father, the accused dealt a blow by means of a Kati on the belly of his father causing severe CRLA No.185 of 2018 {{ 7 }} bleeding injury leading to his instantaneous death. No cross-examination is seen to have been directed to discard the version of this P.W.1 either as to his presence at the relevant time or the scope on his part to witness the incident.
13. The mother of this P.W.1, who is the wife of the deceased, has been examined as P.W.7. She has stated that it was around 4.00 p.m. when the accused had come to their house and asked her husband (deceased) to give money and when her husband refused to pay, the accused quarreled with him and then left their house. She has further stated that it was around 7.00 p.m. accused again returned and created "Gandagola" with her husband and then she, her son (P.W.1) and daughter-in-law (P.W.8) separated them. She has next stated that the accused then stabled her husband by means of a knife on his belly causing bleeding injury leading to his death at the spot. She has also identified the knife used by the accused in Court, which has been marked as one of the Material Objects i.e. M.O.I. She has denied the suggestion that at the time of occurrence, her husband (deceased) was drunk and that her husband, having fallen on the fence of the Maize crop had received the injury and died. Regarding this, we too find no other material on record to support.
14. The evidence of P.W.8 is also in the same vain. Her evidence as to her presence and having seen the incident right from the beginning till the end, has in no way been discarded nor we find that there is any discrepancy in the said evidence and rather we find that the evidence of P.Ws.1 & 7 completely match with one another as regards the happenings in the incident which is also the evidence of P.W.8, who has stated that around 4.00 p.m., her elder father-in-law (accused) came to CRLA No.185 of 2018 {{ 8 }} their house, demanded money from her father-in-law (deceased) who refused and then accused quarreled and left. She has also stated that around 7.00 p,m., accused again came, demanded money and quarreled with her father-in-law and thereafter when her mother-in-law (P.W.7) and husband (P.W.1) went and separated them whereafter the accused gave a blow by means of a knife on the belly of the deceased leading to his death soon thereafter. She has also denied the casual suggestion thrown that at the relevant point of time, her father-in-law was heavily drunk.
15. It is true that these witnesses are none other than the family members of the deceased. But, then the accused is also directly related to them being the members of the same family. It is the settled position of law that the evidence of such related witnesses are not to be readily discarded merely on the ground of their relationship with the deceased. Their evidence can be acted upon if found to be credible and cogent as they normally would not like to spare the guilt and implicate the innocent person.
Thus, when as discussed as we find that the evidence of the above witnesses do not suffer from any such infirmity and are not at all in variance with one another in so far as the happenings in the incident are concerned as well as the role played by the accused, we are left with no option but to brand those witnesses to be wholly trustworthy and their evidence as credible and reliable.
16. With the above evidence on record, we too find no force in the submission of the learned counsel for the Appellant that for the act and role played by the accused, the offence committed by him would stand CRLA No.185 of 2018 {{ 9 }} categorized as one under section 304-I of the IPC. The reasons being that here the witnesses have stated which we have held that the accused had dealt the blow by means of a knife on the belly of the deceased and that was at a time when he being separated from the accused while the accused was quarreling was taken; the injury caused thereby is the punctured wound of the length of 1 ½" X ½" over the left upper abdomen and P.W.11, the Doctor, who had conducted the post mortem examination, has found that by such blow, there has been puncture of the spleen which exhibits the force which the blow had been given.
17. On a conspectus of discussion of evidence as hereinabove, we are thus of the view that the finding of guilt recorded by the Trial Court against the accused for commission of the offence under section 302 of the IPC Act is well in order and the accused has rightly been convicted for the offence under section 302 of the IPC and sentenced thereunder.
18. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 18th February, 2012 passed by the learned Sessions Judge, Koraput at Jeypore, in Criminal Trial No.199 of 2010 are hereby confirmed.
(D. Dash), Judge.
Dr.S.K. Panigrahi, J. I Agree.
(Dr.S.K.Panigrahi), Judge.
Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 19-May-2023 16:40:39 CRLA No.185 of 2018