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2019 DIGILAW 9 (ORI)

Hari Khillo v. State Of Odisha

2019-01-04

J.P.DAS, S.K.MISHRA

body2019
JUDGMENT : J.P. Das, J. The appellants stood convicted under Sections 302/34 of the Indian Penal Code by the learned Sessions Judge, Koraput in Criminal Trial No. 444 of 2004 and each sentenced to undergo imprisonment for life and to pay fine of Rs. 1, 000/- in default to undergo further R.I. for the months. 2. The prosecution case was that on the date of occurrence, i.e., 05.07.2004 at about 5.30 A.M. Sonu Khilla and Raman Khilla of village Todinga, two brothers, me victims were cultivating a piece of land. At this time, the three accused persons along with the Mahadev Guntha being armed with spears reached there and prohibited the victims from cultivation. There was some altercation between them and the accused persons assaulted the victims by means of spears causing severe bleeding injuries, which resulted in death of the two victims at the spot. The appellants fled away immediately thereafter and the entire occurrence was witnessed by the persons, who were also cultivating in the adjacent fields. Thereafter, one brother of the deceased persons, who was also in the adjacent field along with others rushed near the victims and finding them dead, lodged FIR. at Padwa Police Station, Pursuant to which the case was registered. It was also alleged that one accused, namely, Hari Khillo surrendered at the Padwa Police Station with the alleged weapon of offence and confessed that he has committed the murder of the deceased persons. 3. In course of investigation police visited the spot, conducted inquest over the dead bodies, seized bloodstained earth from the spot, the accused persons were arrested and the weapons of offence were also seized. Post-mortem Examination was conducted and the incriminating materials were sent for Chemical Examination. After completion of investigation, charge-sheet was submitted against three appellants, and one Mahadev Guntha, who allegedly accompanied the accused persons at the time of the occurrence, was not charge-sheeted. 4. During trial the accused persons took a plea of complete denial with a submission that due to some rivalry relating to land dispute, they had been falsely implicated. 5. During trial eleven witnesses were examined on behalf of the prosecution as against one in defence. Learned Trial Court on consideration of the material evidence placed before it reached the conclusion of guilt against all the three accused appellants and passed the impugned judgment of conviction and sentence. 6. 5. During trial eleven witnesses were examined on behalf of the prosecution as against one in defence. Learned Trial Court on consideration of the material evidence placed before it reached the conclusion of guilt against all the three accused appellants and passed the impugned judgment of conviction and sentence. 6. It has been submitted in appeal as well as by the learned counsel for the appellants that the learned Trial Court reached the impugned conclusion erroneously ignoring the serious discrepancies in the evidence of so-called eye witnesses and other deficiencies in the case of the prosecution. Firstly, it was contended that the main eye witness-informant (P. W.2), who has stated that the accused persons assaulted the victims, has admitted in his cross-examination that the time of occurrence was dark. Hence, he could not have seen the actual accused persons. It is submitted on behalf of the State that the other eye witnesses, namely, P.WS.4, 5 and 6, have categorically stated that they were cultivating their nearby lands and they had seen the assault by the accused persons to the victims resulting in their instantaneous death at the spot. They had also stated that they rushed to the spot and found the victims lying dead with bleeding injuries. It may also be stated here that the occurrence being in the month of July, it could not have been that dark at 5.30 A.M. in the morning to prevent the nearby witnesses to see the occurrence. That apart, the accused-assailants were not strangers to the witnesses and being co-villagers, even their physical gaits and voice could have made them recognizable by the witnesses from a little distance. Further, P. W.2 has also stated that while he had been to Police Station to lodge the F.I.R., the accused Hari Khillo surrendered before the Police with 'Barchha', which contained bloodstains. 7. Secondly, it was contended by learned counsel for the appellants that as per the evidence of P.W.9, the doctor some injuries, found on deceased, could not have been caused by the alleged weapons of offence. It was also submitted that the doctor has not given specific opinion as to the external injuries corresponding to internal injuries found during Post-mortem Examination. Secondly, it was contended by learned counsel for the appellants that as per the evidence of P.W.9, the doctor some injuries, found on deceased, could not have been caused by the alleged weapons of offence. It was also submitted that the doctor has not given specific opinion as to the external injuries corresponding to internal injuries found during Post-mortem Examination. It is seen from the Post-mortem Examination Report as well as in the evidence of the doctor that both the victims sustained incised as well as punctured wounds on the vital parts of the body like heart and lungs and the opinion of the doctor was that the injuries, as found were sufficient to cause death in ordinary course of nature. That apart, as per settled position of law the evidence of the doctor is merely an opinion based on the findings during the Post-mortem Examination and in the case at hand, the ocular testimony of the eye witnesses, as to the assault made by the accused persons, taken together with subsequent circumstances like surrendering of the accused before the police along with the bloodstained weapons of offence could not have over-ridden by some minor deficiency in the version of the doctor conducting autopsy. As seen from the impugned judgment, the learned Trial Court has discussed in detail the evidence of the eye witnesses and nothing has come out in their respective cross-examinations so as to doubt their veracity. 8. It was also submitted by learned counsel for the State that as per Chemical Examination Report, the weapons of offence seized in course of investigation contained stains of the blood of the victims so also the wearing apparels. 9. In view of the consistent evidence led on behalf of the prosecution, which have been discussed in detail by the learned Trial Court, we do not find any compelling reason to take a different view from what has been taken by the learned Trial Court in reaching the conclusion of guilt against all three appellants under Section 302 read with Section 34 of the Indian Penal Code. 10. Accordingly, the present appeal being devoid of merit stands rejected.