Orissa High Court
Sunadhar Bag vs State Of Orissa on 12 October, 2017
Author: Biswajit Mohanty
Bench: I.Mahanty, Biswajit Mohanty
HIGH COURT OF ORISSA: CUTTACK.
JAIL CRIMINAL APPEAL No.90 of 2008
From the judgment dated 28.08.2008 passed by Shri S.K. Ray, Addl.
Sessions Judge (F.T.C.), Bolangir in S.C. No. 68/44 of 2007.
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Sunadhar Bag ........... Appellant
-versus-
State of Orissa ............. Respondent
For Appellant : Mr. Jagabandhu Sahu
For Respondent : Mr. L. Samantaray
(Learned Standing Counsel)
P R E S E N T:
THE HONOURABLE MR. JUSTICE I.MAHANTY
AND
THE HONOURABLE MR. JUSTICE BISWAJIT MOHANTY
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Date of Judgment: 12.10.2017
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Biswajit Mohanty,J. This appeal has been directed against the judgment and
order dated 28.8.2008 passed by the learned Additional Sessions
Judge (F.T.C.), Bolangir in Sessions Case No.68/44 of 2007 convicting
the appellant under Section-302 of the I.P.C. and sentencing him to
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undergo imprisonment for life and to pay a fine of Rs.20,000/- and in
default to undergo R.I. for two years more.
2. The case of the prosecution is that on 25.1.2007
P.W.4-informant had gone to Mandal village for cutting tree. While
cutting tree at around 4 to 5 P.M. it was intimated to him that his son
deceased Sabara Gahira aged about 11 years, who had taken the
bullock for grazing had not returned home. Hearing this, P.W.4
immediately returned home and heard from his wife and daughter
(P.W.7) that though the bullock had returned, their son had not
returned. During search, he found the dead body of his son near
Badadunguritala nala. While the dead body was covered under the
sand, the legs were visible. P.W.4 brought the dead body to the
thrashing floor of Pramod Thakur and there he saw mark of injuries
on the neck, head, back and left ear of his son on account of assault
by axe. The background facts according to P.W.4 as indicated in the
F.I.R. are that the appellant was married to the sister of the informant
(P.W.4). They were staying together in a house in front of the house of
the informant. In the last Chaitra month, P.W.4 became ill and on
account of such illness the wife of the informant blamed the appellant
for having committed sorcery on her husband. As a result, quarrel
ensued between the family of the informant with the appellant. In
such background, the appellant left the village of informant and went
away to village Sargiguda. It is alleged that on account of sorcery
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practised by the appellant, the informant was not able to walk
properly. Later on he was cured after taking medicine. Few days prior
to the occurrence, the appellant (who is the brother-in-law of the
informant) had come to the village of the informant. Seeing him, the
wife of P.W.4 (informant) started blaming the appellant as the
informant was not able to walk properly on account of sorcery
practiced by him. This resulted in another quarrel and the appellant
threatened the informant to the effect that earlier he had a narrow
escape and next time either P.W.4 or his son would be murdered.
On the last Wednesday prior to the date of occurrence, the
appellant visited the house of the informant (P.W.4) and abused him
as the P.W.4 had stacked the cotton bundles in front of his house.
P.W.4 admitted to have stacked the cotton bundles and assured to
remove the same. On 25.1.2007 while the informant was going to the
village Mandal, he saw the appellant near the school with vermillion
on his head and axe on his hand. When he saw him, the appellant
concealed himself.
In such background, P.W.4 lodged a written report on
25.1.2007 at 9 P.M. as he was of the firm opinion that in order to
settle scores, the appellant had killed his son with repeated assault
with an axe. Upon receipt of such report, P.S. Case No.8 of 2007 was
registered by P.W.11 and he took up the investigation. Exhibit-11 is
that F.I.R.
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On completion of the investigation, charge sheet was filed
against the appellant and accordingly the appellant stood trial.
3. The plea of the appellant was that of a complete denial and false
implication.
4. The prosecution in order to bring home the charges examined
as many as 14 witnesses. P.Ws.1, 3 and 5 are the witnesses to the
inquest. P.Ws. 2 and 12 are the seizure witnesses. P.W.4 (who
happens to be brother-in-law of the appellant) is the informant. P.W.6
is a witness, who has stated about having heard the shouting of the
deceased near the place of occurrence. P.W.7 is the daughter of P.W.4
and sister of the deceased. P.Ws.8 and 9 are the witnesses to the
disclosure statement and recovery of weapon of offence. P.W.10 is the
doctor, who conducted postmortem and P.W.11 is the Investigating
Officer. P.W.13 is the photographer and P.W.14 is a witness before
whom it was claimed that the appellant had made extra judicial
confession. The prosecution also proved Exhibits 1 to 18 and M.O.I to
M.O.VII. The appellant had not adduced any evidence.
5. Mr. Jagabandhu Sahu, learned counsel for the appellant
submitted that this being a case of circumstantial evidence where the
chain of circumstance is not complete, the learned court below has
gone wrong in convicting the appellant. According to him, the learned
court below committed a mistake by relying on the motive of the
appellant though the evidence relating to such motive is highly
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deficient. He further submitted that the learned court below has gone
wrong in putting reliance on the disclosure statement under Exhibit-6
though one of the witnesses to such disclosure statement, namely,
P.W.9 has turned hostile and the evidence of other witness P.W.8 has
been demolished in the cross-examination. On this subject, Mr. Sahu
relied on a decision of this Court in Baichandra Majhi -v- State of
Orissa as reported in 2012 (Suppl.II) OLR 120. He mainly relied on
Para-10 of the said judgment. He further submitted that the learned
court below ought not to have believed in the evidence of P.W.6, who
is not an independent witness, but is an interested witness. Further,
P. W.6, who claims to have heard the shout of the deceased has not
seen as to who was shouting. Lastly, he submitted that M.O.I, i.e.,
Tangia is of little help as P.W.4 and P.W.6. have stated nothing
specifically about Tangia, which has been marked as M.O.I. Mr. Sahu
did not dispute that the present case is a case of homicide.
6. Mr. Samantaray, learned Standing Counsel on the other hand
supported the order of conviction and contended that such order
should not be interfered with as the learned trial court on elaborate
discussion of the evidence and circumstances on record has arrived at
a correct conclusion.
7. Before we scan the evidence in order to assess the strength of
rival submissions made by the parties, we would like to point out that
present is a case of circumstantial evidence. Law relating to
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circumstantial evidence has been laid down by the Supreme Court in
Sharad Birdhichand Sarda -v- State of Maharashtra as reported in
(1984) 4 S.C.C. 116. There the Supreme Court has made it clear that
the following conditions must be fulfilled before a case against the
appellant can be said to be fully established.
"(1) The circumstances from which the conclusion of
guilt is to be drawn must or should be and not merely 'may
be' fully established,
It may be noted here that this Court intimated that the
circumstances concern 'must be or should' and not 'may
be' established. There is not only a grammatical but a legal
distinction between 'may be proved' and "must be or should
be proved" as was held by this Court in Shivaji Sahabrao
Bobude -vrs- State of Maharashtra, where the following
observations were made (SCC Para 19, P.807: SCC (Cri)
P.1047). Certainly, it is a primary principle that the
accused must be and not merely may be guilt before a
court can convict and the mental distance between 'may be'
and 'must be' is long and divides vague conjectures from
sure conclusions.
(2) The facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused his guilt,
(3) The circumstances should be of a conclusive nature
and tendency,
(4) They should exclude every possible hypothesis except
the one to be proved, and
(5) There must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in
all human probability the act must have been done by the
accused".
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Keeping in mind the above noted five golden principles, let us
proceed to scan the evidence on record.
8. Here there is no dispute that this is a case of culpable homicide.
P.W.4, who happens to be the informant has stated in examination-
in-chief that the appellant was his brother-in-law (sister's husband)
and the deceased Sabar Gahir was his son. The deceased was about
11 years old at the time of occurrence, which took place on a
Thursday. At about 2 P.M. on the date of occurrence, after taking
lunch he was going to Mandal to cut trees for Murali Khamari. On his
way, he found the appellant with an axe with vermillion mark on his
head. On seeing P.W.4, he fled away. While cutting trees, his wife
informed him through Sudam Khamari with regard to non-return of
the deceased son although the bullocks have returned to the house.
Hearing this he rushed to the house where his wife and daughter
disclosed that in spite of their search in nearby area they were not
able to locate the deceased. As his bullocks ordinarily graze at
Badadunguritala nala side, he went there. While searching, he came
in contact with a leg of a dead body and identified the same to be his
son's. The dead body was covered with sand from head to waist. After
removing the same from the sand, he found injuries on his head, back
and neck and carried the dead body to the thrashing floor of Pramod
Thakur. Thereafter, he informed the matter to his family members
and suspected the appellant as he was moving with Tangia. Again
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they came back to the thrashing floor to guard the dead body. At that
point of time his brother (P.W.5) and other villagers had arrived there.
Thereafter, P.W.4 went to the police station to report the incident. As
he was an illiterate person, he narrated the incident to the nearby
betel shop owner Anil Kumar Naik, who scribed the F.I.R. on his
dictation and instruction. After writing, he read over and explained
the contents of the same to him and finding the same to be true he
put his L.T.I. thereon. As per the direction of the Thanababu, Belpada
P.S. he returned to the thrashing floor to guard the dead body. After
conducting inquest over the dead body, the police sent the same for
postmortem examination. He further testified that the appellant was
married to his sister and after her death, the appellant married
another lady. The house of appellant was in front of his house. The
appellant was a practitioner of sorcery and had applied the same on
him. As a result, he was unable to move without the help of the stick.
Concerning that, there was a quarrel between his wife and the
appellant last year, wherein the appellant had threatened to kill his
deceased son or him. Eight days prior to the occurrence, the appellant
had come to his village and abused him and again threatened to kill
either him or his son. The deceased was his only son. On the date of
occurrence the appellant had come to his house in the morning and
asked as to who had stacked cotton bundles in front of his house.
Though P.W.4 (informant) admitted to have kept the same and
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assured to shift the said materials, but the appellant being enraged
threatened to kill them. In the cross-examination, P.W.4 stated that
the thrashing floor lay between his house and Badadunguritala nala.
While he kept the dead body on the thrashing floor, non-else was
present. When he found the dead body it was already evening and he
saw the shirt of the deceased lying nearby. He did not inform anybody
about the missing child. Satrughana Gahir accompanied him to the
police station. He had only informed about the incident to his family
members and none else, but the villagers had assembled at the
thrashing floor. The scribe was not known to him earlier. At 9 P.M. he
handed over the written report to the Thanababu. After lodging F.I.R.,
the O.I.C. directed him to go back to village to guard the dead body.
He did not take his statement at the time of lodging of F.I.R. He did
not know the name of the person through whom the wife informed
him about non-return of his son, but Sudam had informed him
knowing from that person through whom the information was given
by the wife. The appellant has constructed his house which is located
in front of his house. From the date of marriage of his sister with the
appellant, he was aware that the appellant was habituated to the
sorcery works. He was also practising sorcery in other villages. For
that purpose, he was getting goats and hens. However, he admitted
that he had not heard of any of the villagers quarreling with the
appellant for application of sorcery. After taking medicine from Saroj
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Thakur, who is both a Kabiraj and a sorcerer, he was cured. He
denied a suggestion that the appellant had not applied any sorcery on
him and that he had never threatened to kill him and his son. He had
intimated co-villagers about such threat. Some villagers including
P.W.8 came to pacify the matter in the month of Chaitra of that year.
Prior to 7 to 8 days of the occurrence, the incident that had happened
was not intimated to any villagers for conciliation. However, the co-
villagers were present on 24.1.2007 morning when the appellant
quarreled with them. On 25.1.2007 he saw the appellant at 2 P.M. He
testified that he was mentally fit after seeing the dead body of his son.
He saw the injuries near ear, head and back of his son and the dead
body was covered with dry sand. He denied a suggestion that the
appellant had not committed the murder of his son and that on
account of his enmity he has foisted the case against the case against
the appellant.
P.W.5 happens to be the brother of P.W.4. In his examination-
in-chief he has stated that on 25.1.2007 he came to know about the
murder of Sabar and shifting of him by P.W.4 to the thrashing floor of
Pramod Thakur. He went to the thrashing floor where P.W.4 was
present. On enquiry, P.W.4 told him that the appellant had committed
the murder of his son at Badadunguritala nala and that he has
brought the dead body from the Nala to the thrashing floor. He saw
mark of injuries on the deceased. He and the family members of P.W.4
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guarded the dead body and P.W.4 and Satrughana Gahir went to the
police station. On the next day morning the police came to the village
and asked them about the incident and took them to the
Badadunguritala nala. The place of occurrence was underneath the
nala and they found a stone marked with vermillion and a broken
coconut with an invitation card. The police seized the same in their
presence. The police also seized the blood stained earth and sample
earth from the place where murder was committed. The police
prepared the seizure list vide Exhibit-3. The police seized the Chappal
of Sabar and the blood stained shirt of Sabar vide Exhibit-4.
Thereafter, they came to the thrashing floor with the police. The police
after verification of the dead body prepared inquest report under
Exhibit-1 and he signed such inquest report. He further stated that
the appellant had married his own sister Lilamani 15 to 16 years
back. After birth of Sabar, she died, whereafter the appellant kept
another lady. One year prior to the occurrence, the appellant had
made P.W.4 unfit for work by applying sorcery for which there was a
quarrel, in his presence. The appellant threatened to murder Sabar
and P.W.4. Seven or eight days prior to murder, the appellant had
again come to his village and quarreled with P.W.4 concerning the
application of sorcery and threatened to murder P.W.4 as well as his
son. On the previous day of occurrence i.e., on Wednesday the
appellant had come to his village and there was a quarrel between the
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appellant and P.W.4 on storing of cotton bundles. In spite of
assurance of P.W.4 to shift the cotton bundles kept by him, the
appellant threatened to do away with the life of P.W.4 and his son. On
the next day, the nephew Sabar was murdered. Further, in his
examination-in-chief, P.W.5 stated that the appellant is a practicing
sorcerer and he strongly suspected that the deceased was murdered
by the appellant. In his cross-examination, he stated that the police
seized coconut shell, chappal, shirt and blood stained earth at
Badadunguritala nala. He found injuries on the left ear, head, neck
and back of the deceased. The police examined him on 26.1.2007. He
has heard of the appellant threatening to murder P.W.4 and his son
thrice. He further stated that they had invited 3 persons to pacify the
dispute, which included P.W.8. They were invited for the occurrence
that happened 7 to 8 days prior to murder. He further stated that he
did not know on whom the appellant had applied sorcery, but at
several times, he had disclosed about such application in different
villages. He denied a suggestion that the appellant had never applied
sorcery on P.W.4 and that he is deposing falsely. He further stated
that 4 days prior to 26.1.2007, the appellant had come to Bhatapada
and on seeing him, the wife of P.W.4 asked him as to why he applied
sorcery on P.W.4 and hearing this appellant got enraged and
threatened to kill P.W.4 and his son. He denied a suggestion that he
has not stated before the police that the appellant had come to his
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village on 24.1.2007 and there was a quarrel about the stacking of
cotton bundles. On further re-examination on recall he stated that he
can identify the slippers, shirt and the stick, which the deceased was
using during his life time. Accordingly, he identified the slippers as
M.O.V, shirt as M.O.VI and stick as M.O.VII. He also stated that the
mother of the deceased became mad after the death of her son. In
further cross-examination he has admitted that there was no
identifying mark in the chappals of the deceased, but the deceased
was using the chappals. During life time of the deceased the slipper
was stitched by P.W.4. At the time of seizure of M.O.VI, he had given
his signature on the seizure list, but not signed on the paper pasted
on it. Sticks like M.O.VII are commonly used at the time of grazing
cattle. He further stated that the M.O.VII i.e. the stick was not stained
with blood. One month after the murder of Sabar, his mother became
mad though she has not been taken to any of the hospital for her
treatment.
P.W.7 is the sister of the deceased and daughter of P.W.4. In
her examination-in-chief she stated that the occurrence took place in
2007 on a Thursday. On that day while bullocks' returned to house,
the deceased did not. So she herself along with her mother searched
for him in nearby place but could not find him. Accordingly,
information was sent to P.W.4, who had gone to cut trees at
Khamarighar of the village Mandal. On hearing the news, the P.W.4
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came to the house and knowing about non-arrival of the deceased, he
went towards Badadunguritala nala and returned with dead body of
her brother. After keeping the dead body in the thrashing floor, he
returned to the house tearfully and disclosed that the appellant had
killed his son at Badadunguritala nala. Accordingly, they rushed to
the thrashing floor with uncle P.W.5 and found mark of axe blows on
the head, neck and back of the deceased brother. P.W.4 went to the
police station while they guarded the dead body and on the next day
at 8 A.M. police came to the village. She further testified that prior to
the occurrence, the appellant was threatening his father to kill him
and his deceased brother. In the previous year, there was a quarrel
between P.W.4 and the appellant as the appellant had applied sorcery
to her father (P.W.4) for which he was unable to work. The appellant
had then gone to his village Sargiguda. Four to five days prior to the
occurrence, they had stacked cotton bundles on the door of the
appellant. After the appellant arrived, he started abusing them in
spite of their assurances to remove the bundles. There the appellant
threatened to do away with the life of P.W.4 and the deceased. P.W.7
in her cross-examination has stated that she herself and her mother
both searched for the deceased brother, but they did not search near
Badadunguritala nala or it nearby areas. At 5 P.M., P.W.4 rushed
towards Badadungurigala nala after his arrival in the house. He
returned to the house leaving the dead body at the thrashing floor.
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They used to go towards Badadunguritala nala for labour work and to
collect fire wood. The land of P.W.6 is lying near the Badadunguritala
nala. On the occurrence year, P.W.6 had grown Chhana in his field
and was guarding his Channa grain. They had not asked anything to
P.W.6 about missing of the deceased. The appellant had quarreled
with her parents last year on three occasions. Concerning the quarrel
between P.W.4 and the appellant, three persons were called to their
house, but the appellant did not attend. P.W.4 did not inform the
matter to police as it was a family matter and as he was under an
impression that the appellant would not harm his family. The
appellant was practicing sorcery and was bringing goats and hens
from other villagers. Saroj Thakur, who treated her father (P.W.4) had
also disclosed about the application of sorcery on P.W.4 and was
enquiring about the presence of the appellant. However, she stated
that the appellant had no ill-feeling towards the deceased brother, but
had such feelings against P.W.4 and her mother. She denied a
suggestion that she was deposing falsely.
P.W.6 happens to be a co-villager, who in his examination-in-
chief has stated that he knows the appellant as well as P.W.4 and the
deceased and the occurrence took place in 2007 in the month of
Magha on a Thursday. On that day at about 2 P.M. he had been to his
'Khudia Gram Field'. While he was there, he heard the sound of a boy
at 4 P.M., who was shouting "DHAN GO BUA MOTE KUTU CHHE"
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(father come, assault going on me), coming from the side of
Badadunguritala nala. The sound was coming from a distance of
about 200 cubits. Hearing sound, he proceeded in that direction and
found the appellant holding a Tangia with mark of vermillion on his
forehead and his wearing Dhoti was stained with blood. Seeing that
out of fear P.W.6 fled away from the spot and came to his house and
did not divulge the incident before anybody. At about 7 P.M. on the
same night hearing cry when he asked his wife, his wife told him
about the murder of Sabar at Badadunguritala nala. On the next day
the police came to his village and inspected the dead body lying at the
thrashing floor. He also saw mark of injuries on the body of the
deceased. He disclosed the incident which he had heard and seen on
the previous day before the police. He also testified that the appellant
was residing in his village and was practicing sorcery. In the cross-
examination, he stated that his Channa land is nearer to the
Badadunguritala nala and he alone had raised Channa at that place.
On Thursday no other cultivators were present at the time when he
heard the sound. At 4 P.M. he heard the sound of a boy and stated
that the deceased Sabar was our village boy. He denied the suggestion
that the parents of the deceased had sold the deceased to him and he
had kept him as his son and that he is deposing falsehood and that
he had not heard any sound on that day and not seen the appellant
with Tangia with mark of vermillion on his forehead and his wearing
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Dhoti stained with blood. He further stated that he has stated before
the police that at 4 P.M. he heard the sound of a man. However, he
admitted that he has not stated before the police that he heard the
sound of a boy saying "Dhan go bua mote kutu chhe". Out of fear, he
did not divulge the incident before his wife.
Now coming to the evidence of P.W.8. P.W.8 in his
examination-in-chief has stated that he knew the appellant, the
informant-P.W.4 and the deceased son. On 29.1.2007 he was going to
Belpada along with P.W.9. On being called by the Thanababu both he
and P.W.9 went to the police station and found the appellant sitting
there. Thanababu interrogated the appellant, who confessed his guilt
of killing the deceased by means of a Tangia and further disclosed
that after taking bath in the tank of Mandal, he proceeded towards
the village Sergiguda after washing his cloths and Tangia and
concealed the axe on the hut of Budu Tandi and stated that he would
show the place of concealment and give recovery of the Tangia.
Policebabu recorded his statement in their presence and read over
and explained the statement whereafter they signed it. According to
him, the appellant had also signed the statement under Exhibit-6.
P.W.9 also signed it. Saying so the appellant led to the hut of Budu
Tandi and brought out the Tangia from that hut and handed over the
same to the Policebabu. The Policebabu prepared a seizure list in
respect of that Tangia under Exhibit-7 which was signed by he
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himself and P.W.9. Thereafter, they went to the house of the appellant
at village Sergiguda where the appellant handed over Dhoti stained
with blood with other materials. The Policebabu prepared the seizure
list under Exhibit-8. In the cross-examination he stated that he was
aware of the incident of the murder, but he did not visit the place
where the dead body was lying and that he was not aware about
dispute between the appellant and P.W.4 prior to the occurrence.
Thanababu asked the appellant as to how he committed the murder
but he did not terrorize him. The contents of Ext.6 were not read over
by the Thanababu. They put their signatures in the village Sergiguda
near the hut of Budu Tandi and did not sign on any paper at the
police station. But he stated that he can identify the articles seized. At
the place of recovery, Thanababu measured the axe. The length of the
handle portion of the axe was within three feet. The handle was made
of 'Dhaunra' wood. He denied a suggestion that the appellant did not
confess anything and did not give recovery of the axe in their
presence. He further stated that there were number of patches of
blood on the dhoti. The contents of the seizure list were not read over
and explained to them. On re-examination on recall he stated that
M.O.I is the axe recovered from the hut of Budu Tandi which was
seized vide Exhibit-7. M.O.III is the Dhoti. In his cross-examination,
he stated that M.O.I (Tangia) was not stained with blood when the
appellant gave recovery of the same. He only signed the seizure list
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not on the M.O.I. He also stated that the mother of the deceased was
mentally unfit. P.W.9, the other witness, who has signed Ext.6 has
turned hostile.
The evidence of P.W.10 shows that on examination of the dead
body, he found four numbers of external injuries in the nature of
abrasions. Further, he has stated that the cause of death is due to
severe bleeding due to cardiac shock and the death has occurred
within 24 hours from the time of examination at 2.30 P.M. All the
injuries are ante mortem in nature and injury no.4 was sufficient in
the ordinary course of nature to cause death. That injury might have
been caused with heavy and sharp cutting weapon. He proved the
postmortem report as Exhibit-9. On 30.1.2007, i.e. five days after the
occurrence, the police had sent a query along with the weapon of
offence-axe (M.O.I) to him to report as to whether the injuries noticed
in the postmortem report are possible or not by such weapon of
offence. On examination of the axe, he reported that the injuries
noticed in the postmortem report are possible by that axe. Exhibit-10
is that report. In cross-examination, he stated that he has not
mentioned in Exhibit-9 that the injuries are ante mortem in nature.
He reiterated that all the injuries noticed in the postmortem report are
possible by M.O.I. He further stated that he has given the inch
measurement of the injuries, though on account of oversight he
mentioned cm in respect of injury no.4. Three blows were inflicted on
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the neck. All the three injuries were dealt one after another and injury
no.3 was the result of three blows. Injury no.4 is a lacerated injury.
He further made it clear that it is a fact that he did not find any
abrasion injury in the postmortem report. Inadvertently he has stated
so in his examination-in-chief. But these are all cut injuries which he
described as follows:-
i. Left shoulder and scapula of size ½"x1/2x1/2".
ii. Left scapula to neck 2"x1"x1".
iii. Head of occipital bone to with left ear to pins are there for
three times of deep injury of size 4½"x2"x2".
iv. Neck of foramen magunum cut to severe injury 6½x4"x4"
inches (Lacerated wound). All the injuries are possible by
the sharp side of the axe M.O.I.
P.Ws.1 and 3 are the witnesses to the inquest. P.W.2 is a
seizure witness, whom police took to the place of occurrence at
Badadunguritala nala. He proves seizure list under Exhibit-2. He
further stated that the Policebabu collected blood stained earth from
the spot and prepared seizure list under Exhibit-3, which he has
signed. The blood stained shirt of the deceased was lying on the
cultivable land of Murali Thakur. The Policebabu seized the shirt and
prepared seizure list under Exhibit-4, which he has signed. In his
cross-examination, he has stated that he can identify the seized
articles.
P.W.11 is the I.O., who in his examination-in-chief stated that
on 25.1.2007 while working as O.I.C. of Belpada Police Station at 9
P.M. the P.W.4 presented a written report which was registered by
21
him as P.S. Case No.8 of 2007 under Section 302/201 of the I.P.C.
and accordingly, he took up investigation. Exhibit-11 is the written
report lodged by P.W.4 (informant). During course of investigation, he
examined complainant and recorded his statement, issued command
certificate to the constable, visited the spot, seized blood stained earth
on 26.1.2007 in presence of witnesses and prepared the seizure list
under Ext.3. He also seized one faded green colour half shirt stained
with blood under Exhibit-4. He held inquest over the dead body. He
seized one black colour half pant stained with blood and command
certificate vide Exhibit-14. On 29.1.2007, he arrested the appellant,
who in course of investigation, confessed in presence of witnesses
P.Ws.8 and 9 to have committed the murder by means of an axe and
confessed to have concealed the weapon of offence in the hut located
in the cultivable land of Budu Tandi and stated that he would show
the place of concealment of the axe for recovering the same. Exhibit-6
is the statement of the appellant. The appellant thereafter led him and
other witnesses like P.Ws.8 and 9 to the place of concealment and
gave recovery of the axe from the hut located in the ridge of cultivable
land of Budu Tandi of Sargiguda. Accordingly, seizure list under
Exhibit-7 was prepared. Thereafter, the appellant took them to his
house and handed over one white dhoti stained with blood which was
seized vide Exhibit-8. M.O.III is the Dhoti. He forwarded the appellant
on 30.1.2007 and made a query to P.W.10 by producing seized axe to
22
ascertain whether the injuries mentioned in postmortem report is
possible by seized axe. He also made a prayer to the S.D.J.M.,
Patnagarh for sending the seized articles for chemical examination.
Ext.16 is the forwarding report of the S.D.J.M., Patnagarh to R.F.S.L.,
Ainthapalli. In cross-examination, he stated that P.W.4 had come
alone at the time of lodging the F.I.R. and he examined him after
registering the case. On the same day, he visited the spot but he did
not examine any witnesses as it was night. The informant (P.W.4) also
accompanied him to the spot at night. On the next day, he visited the
spot first and found blood stained shirt, stick and chhapal lying near
the spot. He collected blood staines from the place. After inquest, he
examined P.Ws.1,3,4,6 and 7. Further, he stated that the statement of
the appellant under Exhibit-6 was recorded in presence of witnesses
at the police station. When the appellant led them to the cottage of
Budu Tandi, no other person was present there. The appellant entered
inside the house and brought out the axe. He could not re-collect
whether the axe was stained with blood at the time of recovery and
seizure. But he stated that the Dhoti was stained with blood. After
26th he examined P.Ws.8,9 and others. He denied a suggestion that
the appellant had not made a disclosure statement and given recovery
of the axe and that by threatening the appellant he took his statement
and seizure of axe and dhoti were made in the police station. On
24.6.2008 P.W.11 was re-examined on recall and there he stated that
23
he had examined P.W.9. P.W.9 stated before him that on 29.1.2007
being called by the Belpada Police Station, when he and P.W.8 entered
the police station, they found the appellant there and on interrogation
by the police, the appellant disclosed to have killed the deceased by
means of an axe near Badadunguritala nala due to previous enmity
and prior to the occurrence, he had threatened P.W.4 to murder him
and his son and after assaulting Sabar on his back, neck and head,
murdered him and concealed the dead body of Sabar in the Nala by
covering sand and after taking bath and washing his clothes and
tangia, he went towards the village Sargiguda and on the way he
concealed the axe in the hut of Budu Tandi located in his cultivable
land and then he went to his house and after changing his wearing
clothes, he kept the same and saying so, he led him and P.W.8 to the
hut of Budu Tandi and brought the axe and handed over the same to
the policebabu. In further cross-examination, he denied a suggestion
that P.W.9 had signed the disclosure statement of the appellant on his
instruction and that he kept P.W.14 in the police custody for 7 days.
With regard to P.W.6 he testified that P.W.6 has not stated to him that
he heard the sound of a boy saying "Dhan go bua mote kutu chhe".
But he admitted that P.W.6 has stated to him that he heard shouting
of a boy.
P.W.12 is a Home Guard, who has proved the seizure of a pant
stained with blood. P.W.13 is the A.S.I., Photograph of D.F.S.L.
24
Bolangir, who took photo of the deceased, the spot and of thrashing
floor. P.W.14 is a cultivator of Mandal Mouza, who has been declared
hostile. Though in examination-in-chief he has stated that he saw the
appellant holding an axe with wet clothes on his body and disclosed to
have murdered the son of P.W.4 and cautioned him not to disclose the
said fact to anybody, however, in cross-examination, he has stated
that after the confession made by the appellant, he was in his village.
Except police, he did not disclose this fact before anybody. Within one
month of the occurrence, the police examined him and recorded his
statement by keeping him in the police station for 7 days suspecting
him to have committed the murder of P.W.4. Before recording his
statement when police assaulted him he voluntarily disclosed the
entire fact confessed by the appellant. In such background, on
account of his delayed examination and on account of his testimony
about his disclosure of confession of appellant due to assault, the
learned trial court has come to a conclusion that his statement does
not inspire confidence. Accordingly, it has discarded the evidence of
P.W.14.
9. An analysis of evidence shows that though P.W.4 speaks about
being threatened with dire consequences thrice by the appellant,
however, F.I.R. under Ext.11 shows he was threatened with dire
consequences only once i.e. some days prior to occurrence. However,
such inconsistency has not been put to him during cross-
25
examination. Further, the evidence of P.W.4 relating to he being
threatened thrice remains undemolished in cross-examination.
Therefore, the appellant cannot derive any benefit from the above
noted inconsistency. Rather, a holistic analysis of evidence of P.W.4
coupled with the evidence of P.Ws.5 & 7 clearly show that there was
quarrel and ill-feeling between P.W.4 and his family members with
appellant for which the appellant had threatened to kill both P.W.4
and the deceased. P.W.5 has fully corroborated the evidence of P.W.4
relating to threat held out by the appellant to P.W.4 and his deceased
nephew one year prior to the occurrence and 7/8 days prior to
occurrence. With regard to the third occurrence, there is a minor
inconsistency. While P.W.4 states that such threatening took place on
the date of occurrence; according to P.W.5, the third threatening took
place a day prior to occurrence. Keeping in mind the fact that both
these witnesses are rustic and illiterate villagers, who adduced their
evidence one year after the occurrence before the court, the above
discrepancy can only be described as a minor one. Further, in his
cross-examination, P.W.5 has clearly stated that he had heard thrice
the appellant threatening to kill P.W.4 or his son. P.W.7, the sister of
deceased like P.Ws.4 & 5, is a rustic villager, who has endorsed her
testimony with L.T.I. Though vis-a-vis the evidence of P.Ws.4 & 5,
there is some inconsistency in her evidence as to timing of threat
however she has clearly testified that prior to occurrence, the
26
appellant was threatening to kill her father or brother. Though in
Para-4 of her cross-examination, she has stated that the appellant
never had any ill-feeling towards the deceased, however, she has
made it clear that the appellant had ill-feeling towards her parents. A
holistic interpretation of her evidence coupled with the evidence of
P.Ws. 4 & 5 would show that the appellant had the motive to settle
the score with the parents of the deceased and he chose to settle the
same in a manner where it would hurt the parents most though he
might not have any ill-feeling towards the deceased.
Further, P.W.7 has in her cross-examination has stated about
land of P.W.6 being situated near the Badadunguritala nala, where
the ghastly crime was committed. She also stated that P.W.6 had
grown channa in his field in the year of occurrence and was guarding
his channa grain. P.W.6 has corroborated the version of P.W.7 when
in his cross-examination he has stated that his channa land was
nearer to Badadunguritala nala than other cultivators. He had been to
his gram field at 2 P.M. While there, he heard shouting of a boy and
proceeded in that direction. Near the Nala, he found the appellant
holding a Tangia with mark of vermillion and with his Dhoti stained
with blood. Though the exact version of shouting as stated by him in
his examination-in-chief cannot be believed as in his cross-
examination he has admitted that he has not told such exact version
before the police, however his version relating to hearing of shout has
27
remained undemolished. In his cross-examination, he has stated that
at 4 P.M. he heard the sound of a boy and the deceased was the
village boy. P.W.6 has also given L.T.I. endorsing his testimony. Thus,
he is also an illiterate and rustic villager. In such background,
nothing much can be read into his inconsistent version of hearing the
sound of a boy so also hearing the sound of man as stated by him in
his cross examination. Rather, while testifying that he heard the
sound of a boy, he has also stated that the deceased was their village
boy. Taking the totality of circumstances, one can reasonably infer
that what P.W.6, a rustic illiterate villager clearly meant is that on
hearing the voice of deceased, when he was going to the spot from
where such sound emanated, he found the appellant with Tangia on
hand with blood stained Dhoti. Later, the appellant himself has
handed over the blood stained Dhoti to the I.O.-P.W.11. Such conduct
of the appellant assumes importance under Section-8 of the Evidence
Act. P.W.11 has also seized blood stained earth from the Nala in
presence of witnesses vide Ext.3. Further, from near the spot, P.W.11
has also seized one faded green colour half shirt stained with blood
vide Ext.4. That apart the postmortem report under Ext.9 was
prepared on 26.1.2007 at about 2.30 P.M. and there the doctor
P.W.10 has opined that the death had occurred within 24 hours of
such examination. P.W.6 has stated that he had heard the cry at
around 4 P.M. It may not be out of place to indicate here that P.W.4
28
has seen appellant on 25.1.2007 at 2 P.M. with axe and vermillion
mark on his forehead. At 4 P.M. of the same day P.W.6 while going
towards the Nala met appellant in a similar fashion with blood stained
Dhoti. All these provide various chains in circumstantial evidence.
From an analysis of evidence of P.Ws.8 & 9, one can see while
P.W.9 has turned hostile, the evidence of P.W.8 is replete with
contradictions as he has stated in his cross-examination that
contents of Ext.6 were not read over by the Thanababu and they did
not sign any paper at police station but put their signatures only near
the hut of Budu Tandi i.e. the place of recovery and further that
contents of seizure list were not read over and explained to them.
Notwithstanding all these P.W.11 has clearly stated that during
interrogation, the appellant confessed to have committed the crime by
means of axe and to have concealed the same in hut located in the
land of Budu Tandi. He further stated that he would show the place of
concealment and give recovery of axe. Vide Ext.6 such confessional
statement was recorded in presence of P.Ws.8 & 9 and thereafter the
appellant led him and other witnesses and gave recovery. Though the
evidence of P.Ws.8 & 9 in this regard is not of much help for reasons
indicated earlier, but still then the evidence of I.O. (P.W.11) on the
said matters remains undemolished. Law nowhere requires the
investigating agency to have the signatures of independent witnesses
on the disclosure statement of an accused recorded under Section-27
29
of the Evidence Act. Further, it has been made clear by the Supreme
Court in the case of Modan Singh -v- State of Rajasthan reported in
(1978) 4 SCC 435 that if the evidence of the I.O., who recovered the
material objects is convincing, the evidence of recovery need not be
rejected on the ground that seizure witnesses do not support the
prosecution version. In Mohd. Aslam -v- State of Maharashtra
reported in (2001) 9 SCC 362, the Supreme Court has reiterated the
said view. In such background, evidence of P.W.11 on the matter of
leading to discovery of Tangia (M.O.I) cannot be ignored. This again
emerges as a strong circumstance against the appellant.
10. In such background, we have to examine the submissions of
learned counsel for the appellant. His first submission was that the
evidence with regard to motive of the appellant to commit the murder
was highly deficient. We refuse to accept such submission because
the evidence of P.Ws.4,5 and 7 clearly shows that there was ill-feeling
between the appellant and P.W.4 and his wife and prior to the
occurrence he has given threat to eliminate both P.W.4 and the
deceased. Though there exist some minor discrepancy with regard to
timing of threat between the evidence of P.Ws.4, 5 and 7, however, a
holistic reading of their evidence would show that there was bad blood
between the appellant and P.W.4 and accordingly, the appellant had
held out the threat several times. P.W.5 corroborates the version of
P.W.4 with regard to threat held by the appellant one year prior to the
30
occurrence so also the threat held out 8 days prior to the occurrence.
With regard to the last occurrence, there is a minor discrepancy
inasmuch as while the P.W.4 indicates that such threat was held out
by the appellant on the date of occurrence, P.W.5 has stated about
such a threat being held out by the appellant one day prior to the
occurrence. Being rustic villagers, such discrepancy in the evidence of
P.Ws.4 and 5 is of not much consequence. P.W.7 has stated that there
was a quarrel in the previous year and also a quarrel 4 to 5 days prior
to the occurrence where the appellant threatened to do away the lives
of P.W.4 and her brother. She has also stated prior to the occurrence
the appellant was threatening her father (P.W.4) to kill him and her
brother. Like P.W.4, P.W.7 has also attached L.T.I. to the copies of her
deposition. These show both of them to be illiterate and rustic
villagers. Therefore, her saying in the cross-examination that the
appellant had no ill-feeling towards her deceased brother cannot
mean much as in her examination-in-chief she has clearly stated that
the appellant threatened to kill both her father (P.W.4) and her
deceased brother. Not having ill-feeling may be one thing but in order
to settle the score, a person can do harm to another by killing his
close relatives, though he may not be having any ill-feeling towards
that close relative.
Now to the next argument of the learned counsel for the
appellant that since P.W.9 has turned hostile and the version of P.W.8
31
is inconsistent therefore the evidence leading to discovery should be
ignored in the background of the decision reported in Baichandra
Majhi -v- State of Orissa (2012 Suppl.II OLR) 120. In our opinion,
the said case is factually distinguishable. There the conviction was
made solely on the basis of leading to discovery under Section-27 of
the Evidence Act. There this Court dis-believed the disclosure
statement leading to discovery as the witnesses leading to
discovery stated that the disclosure statement on which the police
told him to put his signature was never read over and explained to
them. Here as indicated earlier strong motive of the appellant has
been proved by the prosecution by way of cogent evidence. Further,
the evidence of P.W.6 also offers a strong circumstantial evidence. He
has clearly stated that his cultivable land was situated near
Badadunguritala nala and he having heard the cry of the deceased
coming from Badadunguritala nala went towards that spot. While
going towards Badadunguritala nala he found the appellant near the
Nala with Tangia and blood stained Dhoti. P.W.4 also
supports/corroborates such evidence with regard to spot of
occurrence being Badadunguritala nala from where he found the dead
body of his son. P.W.11 and other seizure witnesses have also stated
about the seizure of blood stained earth from the spot at
Badadunguritala nala and the chemical examination report at
Exhibit-18 shows that the blood stained earth to contain the blood of
32
human origin of Group-B. It also indicates the half shirt and half pant
of the deceased containing human blood of Group-B. The argument
that P.W.6 is not an independent witness, but an interested witness
has no leg to stand as he had denied the suggestion that the parents
of deceased have sold him to P.W.6 and he had kept the deceased as
his son. Further, the argument that evidence on leading to discovery
has lost all its meaning as evidence of P.W.8 is inconsistent and as
P.W.9 has turned hostile, cannot be accepted as the evidence of I.O.
(P.W.11) in this regard remains convincing and has not been
demolished in cross-examination. Recovery of weapon of offence as
made from the place could not have been possible but for the
information supplied by the appellant. For all these reasons, the
evidence of the I.O. with regard to leading to discovery of axe (M.O.I)
cannot be ignored. Further, in Baichandra Majhi case (supra) the
weapon of offence which was sent for chemical examination did not
contain any blood. Here on the contrary, the chemical examination
report finds the Tangia i.e. weapon of offence to be stained with blood.
Furthermore, P.W.10 has clearly stated that the injuries inflicted on
the deceased were possible by such an axe.
With regard to the last submission of Mr. Sahu, learned counsel
for the appellant that since P.W.4 and P.W.6 have not specifically
spoken about Tangia under M.O.I, this is fatal to prosecution, cannot
be accepted because as per the version of P.W.11, the appellant
33
himself had led to recovery of such Tangia. Further despite
inconsistencies in his evidence, P.W.8 has made it clear in his re-
examination that M.O.I is the Tangia recovered from the hut of Budu
Tandi.
11. In such background, according to us, the cumulative effect of
the sequence of events as discussed earlier would show that there
exists a complete chain of circumstantial evidence of conclusive
nature against the appellant. For all these reasons, we are of view
that the appellant has been rightly convicted and accordingly, the
appeal is devoid of any merit and is dismissed.
.....................................
Biswajit Mohanty, J.
I.Mahanty, J.I agree.
.................................... I. Mahanty, J.
Orissa High Court, Cuttack The 12th October, 2017/RNS