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2021 DIGILAW 261 (ORI)

Baikuntha Bihari Dansana v. State Of Orissa

2021-06-21

S.K.MISHRA, SAVITRI RATHO

body2021
JUDGMENT S. K. Mishra, J. - The sole appellant-Baikuntha Bihari Dansana assails his conviction for commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'Penal Code,' for brevity) and sentence to undergo imprisonment for life, recorded by the learned Additional Sessions Judge, (F.T.), Sambalpur in S.T. Case No.213/39 of 2006-07, vide, judgment of conviction and order of sentence dated 27.05. 2008. 2. The prosecution case is that, on 04.07.2006, at about 12.30 P.M. (noon) the deceased after taking lunch, went outside. The informant went in search of his uncle, Bijaysankar and at about 1.30 P.M. he found the footwear of the deceased was kept on the verandah of the house of the accused and the house was closed from inside. The informant called the name of his uncle and the accused replied from inside his house that the deceased was not inside his house and did not open the door of his house. Informant suspecting some foul play, asked the accused to open the door, but he did not open it. At about 5.00 P.M. the informant along with Dusmanta Naik, Rajkumar Naik, Janardan Panigrahi and Hruda Chandra Patel, broke open the door of the accused, and found the beheaded dead body of Bijaysankar was lying on the ground, inside his house and the head was kept separately and the accused and his son were also inside his (accused) house. During investigation, police visited the spot, held inquest over the dead body, arrested the accused, seized axe and sickle, the weapon of offence and other incriminating materials, sent the seized articles for chemical examination and on completion of investigation, submitted charge sheet against the accused under Section 302 of the Penal Code. 3. The appellant took the plea of simple denial. 4. In order to prove its case, the prosecution has examined 12 witnesses. P.W.1, Bipin Bihari Patel is the informant in this case. P.W.6, Hruda Chandra Patel is another nephew of the deceased, a post occurrence witness, P.W.7, Ashok Kumar Patel, scribe of the F.I.R., P.W.3, Santosh Naik is the witness to inquest and seizure of the weapon of offence, P.W.2, Rajkumar Nayak, P.W.4, Rajkumar Agrawalla and P.W.9, Akash Kumar Patel, are the post occurrence witnesses, but they do not support the prosecution case and turned hostile. P.W.8, Janardan Panigrahi, is the another post occurrence witness. P.W.8, Janardan Panigrahi, is the another post occurrence witness. P.W.10, Guru Charan Kuanar, is the Grama Rakhi, a witness to seizure of wearing apparels of deceased. P.W.11, Dr. Gobardhana Behera, conducted postmortem examination on the dead body of the deceased. P.W.12, Prabir Keshari Tripathy, is the Investigating Officer in this case. P.W.5, Himansu Dansana, is the son of the accused. He is a child eyewitness was found incompetent to give rational answer, hence, his statement was not recorded by the learned Trial Judge. In addition to the examination of witnesses, prosecution had relied upon certain documents marked as Ext.1 to Ext.25 and eight materials objects marked as M.O.-I to M.O.-VIII. 5. The case of the prosecution is sought to be proved by circumstantial evidence. In order to establish the case of culpable homicide amounting to murder, the prosecution must establish that the death of the deceased was homicidal in nature. In order to establish the case, the prosecution has examined P.W.11, Dr. Gobardhan Behera, who has conducted the postmortem examination on the dead body of the deceased, Bijaysankar Patel. In his evidence, P.W.11 has stated that on 05.07.2006 he was working as Asst. Surgeon at Sub-Divisional Hospital, Kuchinda and on that day at 12.30 P.M. he conducted postmortem examination and on examination of the dead body, he found the following injuries:- i. Incised wound on forehead of size 3 x 2 x 2, ii. Incised wound on left cheek of size 1 x % x 1/2, iii. Incised wound around neck separating the neck from trunk, 18 x 1 x 6, iv. Incised wound on right shoulder of size 2 x 2' x 2', v. Incised wound around scrotom of size 4' x 1' x3'. On dissection, he found semi-digested food particles were in stomach, both the hearts were empty, cervical muscles were incised, cervical bones were fractured, spinal cord at the neck level, were cut. He opined that the internal injuries found on the neck correspond to external injury no-iv and the death was caused due to complete cutthroat causing massive hemorrhage and shock. The injuries found on the neck, are sufficient to cause death in ordinary course of nature and all the injuries were ante-mortem in nature. He further opined the death was homicidal and it was caused within 12 to 24 hours before the time of postmortem examination. He proved his postmortem examination report as Ext.10. The injuries found on the neck, are sufficient to cause death in ordinary course of nature and all the injuries were ante-mortem in nature. He further opined the death was homicidal and it was caused within 12 to 24 hours before the time of postmortem examination. He proved his postmortem examination report as Ext.10. The evidence of P.W.11 further reveals that on 05.07.2006 he examined one Axe and one sickle (weapons of offence in this case) and the description of the Axe is as follows: 'The axe had a wooden handle and was fitted on the blunt end of the axe having length-27.5, the circumstance was 3.5, the length of the iron part was 7 and the length of the sharp blade-2.5 and the blade was stained with blood'. The description of the Sickle is as follows: 'The sickle had a wooden handle of length-5.5, length of the iron part-18 having multiple sharp teeth in one side and the other side was blunt. The sickle was stained with blood'. After examination of the weapons of offence, he opined that the injuries found on deceased, Bijaysankar Patel as per postmortem examination report, Ext.10, could be possible by the weapons examined by him. He proved the weapon examination report as Ext.12. The evidence of P.W.11 further reveals that on 05.07.2006 he examined accused Baikuntha at about 1.30 P.M. and found two minor abrasions and a bruise on his person. He opined that the age of the injuries were within 12 to 24 hours at the time of his examination. He collected the nail clippings of accused and kept it in glass vials and lebelled the same and handed over the same to the accompanying police party. He examined the blood of the accused and found the blood group was O positive. He proved his examination report of the accused and the report of collection of the nail clippings and the grouping of blood of the accused as Ext.13. During cross-examination, he has stated that when the dead body reached at the hospital, at that time, the head was severed from the body and it was kept close to the body. During cross-examination, P.W.11 admitted that he made correction of the date from 15.07.2006 to 05.07.2006 in the postmortem examination report (Ext.10) inside the Courtroom. During cross-examination, he has stated that when the dead body reached at the hospital, at that time, the head was severed from the body and it was kept close to the body. During cross-examination, P.W.11 admitted that he made correction of the date from 15.07.2006 to 05.07.2006 in the postmortem examination report (Ext.10) inside the Courtroom. The witness volunteers that for the first time he was deposing as a witness in a case of murder and explained that as he prepared the postmortem report and he found the date was wrongly mentioned, so without having any ill intention, he corrected the date due to ignorance. In Ext.10, col-6 it reveals, the date was mentioned as 15.07.2006, but the number 1 before 5 was darkened by a pen. Except the corrections of date in column-VII of the postmortem examination report (Ext.10) the evidence of P.W.11 was not shaken during cross-examination as regard to the case of death and nature of injuries found on the deceased. In column-9 (date and hour of postmortem Examination) and in column-VII (opinion of Surgeon as to cause of death) and below the signature of P.W.11, in Ext.10/1, the date has been mentioned as 05.07.2006. So, the correction made by P.W.11 in Ext.10 in no way affects the prosecution case. The correction was made without any mala-fide intention. So, the evidence of P.W.11 is reliable. The inquest reports, Ext.2 and Ext.3 reveal that the head was severed from the body. The time since death as mentioned in postmortem examination report also corroborated the time as reflected in the F.I.R. Considering the evidence of P.W.11 and the inquest report, postmortem examination report, we hold that the death of deceased was homicidal in nature. 6. The learned counsel appearing for the appellant submits that P.W.5, the minor son of the accused has been presented as the eyewitness to the occurrence, but his statement has not been recorded. So, the case of the prosecution must be disbelieved. However, from the statement of P.W.5 recorded by the learned Additional Sessions Judge, (F.T.), Sambalpur, it is found that he was a child aged about 9 years at the time of examination by the Court. Therefore, the Court recorded that the due to tender age, there is every chance of tutoring of this witness. However, from the statement of P.W.5 recorded by the learned Additional Sessions Judge, (F.T.), Sambalpur, it is found that he was a child aged about 9 years at the time of examination by the Court. Therefore, the Court recorded that the due to tender age, there is every chance of tutoring of this witness. So, learned Sessions Judge did not find it suitable to examine in the case and his statement was not recorded. 7. It is apparent that the prosecution has relied on oral testimony of eye witnesses as well as circumstantial evidence to bring home the charges levelled against the accused. Failure witness account of to record the eye evidence would not in any manner affect evidences of the prosecution in the shape of circumstantial evidence. So, even if P.W.2, the minor son of the accused did not state anything in the Court, in our considered opinion, the circumstantial evidence put forth in this case is required to be carefully assessed to come to the conclusion whether the prosecution has proved its case beyond reasonable doubt. 8. The impugned judgment reveals the following circumstances to have been proved by the prosecution in furtherance of its effort to prove the case against the appellant beyond all reasonable doubt, (in addition to the fact that the death of the deceased was found to be homicidal in nature). It reads as follows: i. deceased used to take Ganja along with accused; ii. deceased was found living till 12.30 P.M. (noon) on 04.07.2006 and thereafter his dead body was found in the house of accused; iii. accused was present in the house where the dead body of the deceased was lying and the door of the house was closed from inside, iv. the footwear (Chapal) of deceased was kept on the verandah of the house of accused, v. blood patches were found on the floor of the house of accused, vi. blood stained axe and sickle (weapons of offence in this case) were found inside the house of the accused; vii. the nail clippings of the accused were stained with human blood, viii. medical evidence establish that the deceased died a homicidal death, and ix. chemical examination report establish reveals human blood stains were found from the nail clippings of the accused and the axe and sickle seized from the house of accused. 9. Mrs. the nail clippings of the accused were stained with human blood, viii. medical evidence establish that the deceased died a homicidal death, and ix. chemical examination report establish reveals human blood stains were found from the nail clippings of the accused and the axe and sickle seized from the house of accused. 9. Mrs. C. Kasturi, learned Amicus Curiae for the appellant argues that there is no direct evidence in this case. The learned Additional Sessions Judge has come to the conclusion regarding the guilt of the appellant solely basing on presumption because the dead body of the deceased was found in his house. Hence, she prays that the appeal may be allowed and conviction and sentence be set aside. 10. Mr. G.N. Rout, learned Additional Standing Counsel, on the other hand, submits that though the investigating agency presented the case including the evidence of a child, being the son of the appellant, whose statement under Section 164 of the Code has also been recorded, the trial court did not examine him as the court found that he is a tutored witness. Whatever transpired in the Court while examination of the child witness has been recorded as evidence of P.W.5 and the learned Additional Sessions Judge has categorically held that because of the tender age there is every chance of tutoring of this witness. So, he did not find it suitable to examine the young boy in this case. However, learned Additional Standing Counsel submits that the said witness has stated before the Magistrate in a statement recorded under Section 164 of the Code about the complicity of his father in commission of the crime, but he fairly concedes that since the document has not been marked and the witness has not been examined that statement cannot be taken into consideration. Developing his case, the learned Additional Standing Counsel further submits that the vital circumstances like shutting of the house of the appellant from inside; breaking open of the door by the villagers; finding the accused inside the house and the dead body of the deceased (his head completely severed from his rest of the body) in one of the room; which is used as store room as well as puja room; presence of blood in the samples collected from the spot and the wearing apparel of the deceased, presence of human blood on the wearing apparel of the appellant Baikuntha and presence of human blood on the weapon of offence together with absence of any kind of explanation from the appellant establish the case for the prosecution. He further argues that presence of young boy aged about 8 years at the spot of occurrence, the boy was sitting on Mancha (wooden plat-form) inside the house reveal that he has been put there by his father so that he cannot interfere with the activity of the appellant also will not help the prosecution in any manner. Therefore, the learned Additional Standing Counsel prays to dismiss the appeal. 11. P.W.1 happens to be the nephew of the deceased. He has stated that his uncle used to take Ganja along with accused Junani, Baikuntha, Basanta Patel and Sinan Naik and go to their house. On 04.07.2006 at about 12.30 P.M. (Noon) he along with deceased took lunch in his house. Thereafter, he went to bed and deceased went outside. After sometime, he was informed by his wife that deceased was picking up quarrel with different persons. So he went in search of the deceased and ultimately came to know that deceased had gone to the house of the appellant and the appellants house was closed from inside. They broke open the door of the house and found the son of the accused sitting on the top of wooden platform inside the house and they rescued him. They pulled the accused outside. At that time, they saw the dead body of the deceased was lying inside the last room of the house of the accused and the head was severed from the rest of the body. His evidence receiving support from the evidences of P.W.6, Hrudachandra Patel and P.W.8, Janardan Panigrahi. P.W.2, Rajkumar Nayak has also supported the case of the prosecution in part. His evidence receiving support from the evidences of P.W.6, Hrudachandra Patel and P.W.8, Janardan Panigrahi. P.W.2, Rajkumar Nayak has also supported the case of the prosecution in part. 12. It is argued that since no document was seized, the learned Additional Sessions Judge should not has come to a conclusion that the house in question actually belong to the appellant. However, taking into consideration the evidence of the witnesses that the accused was residing there along with his family, the learned Additional Sessions Judge has accepted that the dead body of the deceased was found in the house that belongs to the accused. Even, otherwise, the case of the prosecution is proved in this case. 13. We are of the opinion that the following circumstances are established in this case:- (i) when the witnesses reached the house of the accused it was closed from outside; (ii) they forced open the door and found son of the appellant was sitting on the wooden plat form (Mancha) and he was rescued; (iii) they found the appellant present in the house; (iv) the dead body of the deceased, 'head severed from his body', was found inside the house; (v) there were blood stains on the floor which on chemical examination were found to be human blood; (vi) the weapons of offence i.e. one sickle and one axe were found to be stained with human blood; (vii) the wearing apparel of the deceased were stained with blood; (viii) on postmortem examination it was found that the death of deceased was homicidal; (ix) the nail clippings of the appellant on chemical examination were found to be stained with human blood; and (x) the convict-appellant did not give any kind of explanation. In fact, in his examination under Section 313 of Cr.P.C. he denied all the allegations stating the same to be false, which provides an additional link or circumstance. 14. So, we are of the opinion that there is no plausible ground to come to a conclusion contrary to one taken by the learned Additional Sessions Judge, (F.T.), Sambalpur. Hence, the appeal is dismissed being devoid of merit. The Trial Court Records (T.C.Rs) be returned back to the trial court forthwith along with copy of this judgment. 14. So, we are of the opinion that there is no plausible ground to come to a conclusion contrary to one taken by the learned Additional Sessions Judge, (F.T.), Sambalpur. Hence, the appeal is dismissed being devoid of merit. The Trial Court Records (T.C.Rs) be returned back to the trial court forthwith along with copy of this judgment. As the restrictions due to resurgence of COVID-19 are continuing, learned counsel for the parties may utilize the soft copy / downloaded copy of this order available in the High Courts website or print out thereof at par with certified copies, subject to attestation by Mrs. C. Kasturi, learned Amicus Curiae for the appellant, in the manner prescribed, vide Courts Notice No.4587, dated 25.03.2020 as modified by Courts Notice No.4798 dated 15.04.2021.