Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 888 (ORI)

Uttam Biswas v. State of Orissa

2014-12-18

PRAMATH PATNAIK, VINOD PRASAD

body2014
JUDGMENT PRAMATH PATNAIK, J. : In this appeal, the appellant has called in question the legality and propriety of the impugned judgment dated 15.4.2005 passed in SC No.10/2002 SC No.(52/2002) by the learned Additional Sessions Judge, Nabarangpur, convicting the appellant under Section 302 of IPC and sentencing him to undergo rigorous imprisonment for life. 2.The prosecution case as revealed from the F.I.R., in nutshell is that the appellant is the nephew of the deceased Laxmirani Biswas. Both of them were in inimical term due to civil dispute. On 21.08.2001 at about 6.00 a.m., the appellant assaulted the deceased with a kati and severed her head from the trunk and proceeded to the Police Station with severed head in one hand and blood stained of kati on the other hand. Several villagers saw the accused proceeding towards the Police Station. The matter was intimated to the police. On arrival of the appellant at the Police Station, appellant was arrested, the weapon of offence was seized and the matter was investigated by the Officer-in-charge, Raighar Police Station, who held inquest over the head and trunk of the body of the deceased, sent the body for post mortem to Zonal Hospital, Umerkote. He also sent the weapon of offence, i.e., kati, seized wearing apparels of the appellant as well as the deceased, sent the exhibits for chemical examination. The appellant was arrested and after completion of investigation, the I.O. submitted charge sheet against the appellant under Section 302 Indian Penal Code. 3.In order to bring home charge the prosecution examined 16 witnesses. P.W.1 Manas Ranjan Biswal is the scribe of the F.I.R. (Ext.1). P.W.2 and P.W.3 did not support the prosecution case for which, they were declared hostile. P.W.4-Bimal Kumar Sana is the informant who saw the appellant going toward Raighar with the severed head of his aunt and kati. He reported the matter at Raighar Police Station. P.W.5 Prasanjit Sana is an eye witness to the occurrence. P.W.6 did not support the prosecution case. P.W.7 Surendranath Mandal is a photographer who took the photographs of the dead body of the deceased. P.W.8 Satyanarayan Jhawar is a witness to the inquest. P.W.9 Subhash Chandra Sarkar is a witness to the inquest and seizure of different articles. P.W.5 Prasanjit Sana is an eye witness to the occurrence. P.W.6 did not support the prosecution case. P.W.7 Surendranath Mandal is a photographer who took the photographs of the dead body of the deceased. P.W.8 Satyanarayan Jhawar is a witness to the inquest. P.W.9 Subhash Chandra Sarkar is a witness to the inquest and seizure of different articles. P.W.10 Nirmal Kumar Sana is a co-villager of the appellant who stated to have seen the appellant going towards Police Station with the severed head of the deceased and kati. P.W.11 Digamber Panigrahi a constable who is a witness to the seizure of the wearing apparels of the deceased vide seizure list (Ext.11). P.W.12 Pradip Karmakar is a blacksmith who did not support the prosecution case. P.W. 13 Bishnu Sardar is a formal witness. P.W.14 Chandra Singh Chalan is a Police Constable and witness to the seizure of nail clipping of the appellant as per seizure list (Ext.10). P.W.15 Dr. S. Dash who conducted post-mortem examination over the dead body of the deceased and opined the cause of death was due to chopping of head. P.W.16, B.S. Dash who was the Officer-in-Charge of Raighar Police Station as the investigating Officer. No witness has been examined on behalf of the defence. 4.The learned Trial Court on perusal of the evidence on records such as, accused’s cloths stained with blood of the deceased, appellant found with weapon of offence seized from the accused-appellant, the appellant going with severed head and weapon of offence were the incriminating materials, which unerringly point the guilt towards the appellant. Therefore, the learned Trial Court has fastened the guilt on the appellant, accordingly convicted thereunder Section 302 I.P.C. 5.Heard Mr. J.K. Panda, learned counsel for the appellant and Mr. Sk. Zafarulla, learned Additional Standing Counsel for the State. Learned counsel for the appellant has assailed the impugned judgment on the following grounds :- i.The learned Trial Court ought not have believed the evidence of solitary eye witnesses (P.W.5) as his evidence is not clear, cogent and trustworthy. ii.The material contradiction appearing in the evidence of P.W. 5 should not have been lightly brushed aside particularly, when that goes to the root of the matter and proves that P.W.5 is at all an eye witness to the occurrence. ii.The material contradiction appearing in the evidence of P.W. 5 should not have been lightly brushed aside particularly, when that goes to the root of the matter and proves that P.W.5 is at all an eye witness to the occurrence. iii.The production of severed head and kati by the appellant before the Police Station as stated by the witnesses does not raise the only presumption that the appellant has committed the murder of the deceased particularly, when the appellant has given a plausible explanation for such production. iv.The learned Trial Court has adopted dual approach in para-9 and 10 of the Judgment while dealing with the evidence of P.W.5 and if the evidence of P.W.5 is disbelieved. In view of the material omissions, the other circumstances do not form a chain so complete to arrive at an irresistible conclusion to prove the guilt of the appellant. 6.Mr. Sk. Zafarulla, learned Additional Standing counsel on behalf of the State has on the other hand supported the impugned judgment. 7.P.W.5 the solitary eye witness to the occurrence has testified that “on the alleged date and time while deceased Lakhi Rani was sweeping her Courtyard the accused came therewith a kati and cut the neck of deceased Lakhi Rani. Deceased Lakhi on being assaulted shouted. I alongwith my brothers immediately rushed to the spot. By then the accused had already held the severed head of Lakhi in his left hand and the kati in his right hand and he was about to come out.” 8.P.W.4 has stated in the deposition that he saw the accused going with the severed head and kati. Such testimony has not challenged by the defence. The statement P.W.4 has been corroborated by P.W.10 who also testified to have seen the accused going with severed head from the tuft of the hair in his left hand and a kati in his right hand. He has further identified that the kati to be marked as M.O.-XII. He further deposes in the cross-examination that the kati M.O.-XII was stained with blood. P.W.9 and 10 have in evidence that police seized the kati on production by accused. P.W.16 also deposed that the accused-appellant came to the Police Station with the severed head and kati. The accused-appellant has also admitted during his examination under Section 313 Cr.P.C. that he took the severed head and the kati to the Police Station. P.W.9 and 10 have in evidence that police seized the kati on production by accused. P.W.16 also deposed that the accused-appellant came to the Police Station with the severed head and kati. The accused-appellant has also admitted during his examination under Section 313 Cr.P.C. that he took the severed head and the kati to the Police Station. The allegation that accused went to the Police Station with the severed head of the deceased and the kati (sword) i.e. M.O.XII stained with blood has been established in the testimonies of aforesaid prosecution witnesses. Apart from the oral testimony of the prosecution witnesses, the most incriminating circumstances against the appellant is (Ext.23) the report of chemical examination suggests that the cloths of the accused-appellant and deceased were stained with human blood group AB. 9.We have carefully perused the evidence of prosecution witnesses and bestowed our anxious, consideration on the rival contention of parties. In the instant appeal the culpability of the accused and the liability of committing crime has rightly been fastened on the appellant. Since the prosecution has satisfactorily discharged the burden of prove and the prosecution has proved guilt of the appellant to the hilt. 10.Law is well settled that the evidence of solitary witness cogent, clear and trustworthy the same can not be brushed aside and the guilt can be fastened on the testimony of the sole ocular witness. 11.It is the settled position of law that the evidence is to be weighed and not to be counted, there is no impediment in law to base a conviction relying on the testimony of solitary witness provided it is true and trustworthy. In the instant case the evidence of PW-5 appears to be convincing and other witnesses have the corroborated his evidence in material aspects. To sum up, the medical evidence to the effect that the death of the deceased was homicidal in nature has not been challenged by the defence, the defence has further failed to challenge the prosecution evidence to the affect that there was land dispute between the accused person in one hand and the deceased other hand. The independence witnesses namely P.W.10 has testified in his evidence that the accused was proceeding a holding the severed head in one hand and kati on the other hand. Under such circumstances, irresistible conclusion is that the accused has committed murder of the deceased by intentionally causing her death. The independence witnesses namely P.W.10 has testified in his evidence that the accused was proceeding a holding the severed head in one hand and kati on the other hand. Under such circumstances, irresistible conclusion is that the accused has committed murder of the deceased by intentionally causing her death. 12.In view of the discussion made in the forgoing paragraphs, we concur with the findings of the learned Additional Sessions Judge, Nabarangpur. We hold that the prosecution has satisfactorily established the case against the appellant beyond all reasonable doubts. 13.In the result, the appeal is disallowed and the impugned judgment dated 15.4.2005 passed in S.C. No.10/2002 S.C. No.(52/2002) by the Additional Sessions Judge, Nabarangpur and the order of conviction and sentence are confirmed. The appeal is accordingly disallowed. VINOD PRASAD, J.I agree. Appeal disallowed.