Rabi Sambad Vs State Of Odisha

D.Dash,J

The Appellant, by filing this Appeal, has called in question the judgment of conviction and the order of sentence dated 8th June, 2011 passed by the learned 1st Additional Sessions Judge, Cuttack in S.T. Case No.360 of 2008 (Tr. No.42 of 2008) arising out of G.R. Case No.367 of 2008 corresponding to Tangi P.S. Case No.49 of 2008 in the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Rural, Cuttack.

The Appellant (accused) thereunder has been convicted for committing the offence under section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.20,000/- (Rupees Twenty Thousand) in default to undergo rigorous imprisonment for four (4) months for commission of the said offence.

Prosecution Case:-

This  accused  is  the  co-villager  of  Laxmi  Hembrum (Informant-P.W.1), who is the daughter of Baraju Hembrum (deceased). On 08.04.2008 around 6.30 p.m, Laxmi (Informant-P.W.1) was busy in cooking food in her house when this accused came there with cut tree and kept the same near their verandah. Thereafter, this accused sat near the father of the Informant, namely, Baraju and went for certain discussion. After some time, Bhagaban Bandara and Kailash Bandara (the two since acquitted) came to the houe of Baraju Hembrum. Those two namely, Bhagaban and Kailash then requested Baraju to give them some Masala Gundi (chewing tobacco). Baraju expressed that he was not having that Masala Gundi to be offered to them. So saying, Baraju went inside the house. It is stated that Bhagaban and Kailash then caught hold of Baraju when this accused Rabi dealt two blows on his neck by means of Katari. Receiving said blows, Baraju fell on the ground. The accused persons then left the place believing that Baraju died. Laxmi (Informant-P.W.1) then went to the house of one Rout Bhadra of their village where her mother and brother were there. She (P.W.1) then with her mother to the house of the Grama Rakhi (P.W.2) and informed about the incident and returned to the spot with Grama Rakhi (P.W.2) and others. On their return to the spot, they found this accused and two others (since acquitted) and it is said that in their presence, this accused holding the Katari carried the cut head of Baraju and fled away.

In the above situation, Laxmi (P.W.1), the daughter of Baraju (deceased) lodged a written report with the Officer-in-Charge (O.I.C.) of Tangi P.S. Receiving the written report from P.W.1, the O.I.C. treated the same as F.I.R. (Ext.1) and upon registration of the case, took up the investigation.

In course of investigation, the Investigating Officer (I.O.-P.W.13) examined the Informant (P.W.1). The I.O. (P.W.13) then arrested this accused with other two persons (since acquitted) and seized the weapon, i.e, Katari under seizure list (Ext.2). On the requisition of the I.O. (P.W.13), the scientific team reached at the spot, he (P.W.13) prepared the spot visit report (Ext.12) and held inquest in three phases and prepared the reports (Exts.6,7 & 8). Thereafter, the dead body of the deceased was sent for post mortem examination by issuing necessary requisition. On production of the blood stained earth and sample earth by the scientific team, the same were seized by the I.O. (P.W.13) under seizure list (Ext.A). The wearing apparels of this accused were seized under seizure list. The seized incriminating articles were sent for chemical examination through Court. On 15.07.2008, the I.O. (P.W.13), as per the direction of the S.P., Cuttack, handed over the charge of the investigation to the Circle Inspector of Police (P.W.14), who, examined the I.O. (P.W.13), the Informant (P.W.1) & others and on completion of the investigation, the I.O. (P.W.14) submitted the Final Form placing this accused along with two other accused persons to face the Trial for commission of the offence under section 302/34 of the IPC.

Learned J.M.F.C. (R), Cuttack, on receipt of the Final Form, took cognizance of said offence and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge for the aforesaid offence against this accused along with other two other accused persons (since acquitted).

The prosecution, in support of its case, has examined in total fourteen (14) witnesses during Trial. As already stated, the informant who happens to be the daughter of the deceased is P.W.1. P.W.2 is the Grama Rakhi. P.Ws.4 & 5 are the witnesses to the seizure of Katari and blood stained earth (Exts.2 & 3). P.W.6 is the son of the deceased, who called the Grama Rakhi. P.W.7 is a witness to the inquest reports (Exts.6, 7 & 8). P.W.8 is the police constable and the scribe of the FIR (Ext.1). The Doctor, who had conducted the post mortem examination over the dead body of the deceased, has been examined as P.W.10. The first I.O. of the case has been examined as P.W.13, the C.I. of Police, who submitted the Final Form, has been examined as P.W.14.

Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 15. Out of those; important are the FIR (Ext.1); inquest reports (Ext.6, 7 & 8); the post mortem report (Ext.9) and the spot map (Ext.12). The Chemical Examiner’s report has been admitted in evidence and marked Ext.15.

The accused person, having taken the plea of complete denial and false implication, has, however, not tendered any evidence.

Mr. A.K. Sahoo, learned counsel for the Appellant (accused) submitted that the evidence let in by the prosecution by examining the daughter of the Informant as P.W.1 and others when being properly scrutinized would lead to show that the same do not establish the fact that this accused, who had given Katari blows on the neck of the deceased and had later on carried out the head of the deceased, being removed from the trunk. He further submitted that the evidence of P.W.1, being appreciated with the evidence of the other witnesses, it would lead to show that she had not seen the actual happenings in the incident and, therefore, when her evidence contains the contradictions and do not also match with the evidence of the Grama Rakhi (P.W.2) and son of the deceased (P.W.6), the Trial Court us not right in holding this accused guilty of committing the offence of murder of Baraju when with the same set of evidence in respect of the role played by two other accused persons, namely, Bhagaban and Kailash have been doubted. He next submitted that when the Trial Court has entertained doubt over the evidence of P.W.1 and others in relation to the role played by Bhagaban and Kailash, the evidence of said witness (P.W.1) and others in respect of the role of this accused ought to have also been doubted. He, therefore, urged that the judgment of conviction and order of sentence, which are impugned in this Appeal, cannot be sustained.

Mr.S.K.Nayak, learned Additional Government Advocate for the Respondent-State has supported the finding of guilt against the accused, as has been returned by the Trial Court. He, from the very beginning, submitted that since the State has not preferred any Appeal challenging the order of acquittal of those two accused persons, namely, Bhagabn and Kailash, even though the Trial Court has acquitted them on flimsy grounds, that cannot be taken advantage of by this accused as against him, the evidence of P.W.1, the eye witness and others firmly stand. He also submitted that the eye witness (P.W.1), the daughter of the deceased, has withstood rigorous cross-examination and her evidence does not contain any such contradictions nor any discrepancy is noticed therein. According to him, the evidence of P.W.1 is most natural and he has narrated the incident clearly and consistently. In support of the same, he has invited our attention to the deposition of the daughter of the deceased (P.W.1). Taking us through the deposition of P.W.2, who is the Grama Rakhi and was informed by P.W.1 and her mother, he states as to how that provide corroboration to the evidence of P.W.1, which also receives corroboration from the evidence of P.W.2. It was submitted that with the evidence on record, which are free from any such infirmity, the judgment of conviction and order of sentence are not liable to be interfered with.

Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also extensively travelled through the depositions of the witnesses (P.W.1 to P.W.14) and have perused the documents admitted in evidence and marked as Ext.1 to Ext.15.

The Doctor (P.W.10), who had conducted the post mortem examination over two parts of the body of Baraju, i.e., decapitated head and the rest part from the neck, has clearly stated that the head and trunk are matching and belong to one individual. It is also his evidence that the death was instantaneous due to sudden decapitation of head by a sharp cutting weapon. Having examined the iron Katari with iron blade and handle with the tip of the blade being rounded and curved with sharp cutting on its concave side, he has deposed that with such weapon, said decapitation is possible. Although this P.W.10, has been cross-examined, we, however, do not find any material to have elicited from him to discard his positive version in Court in tune with the reports (Exts.9 & 10). In addition to the above, when we find the other evidence in relation to the beheading of Baraju, we are left with no option but to hold that it was a homicidal death.

Coming to find out the sustainability of the finding of the Trial court as regards the complicity of this accused in causing the fatal injury upon the deceased and then beheading him, let us first take up the examination of the evidence of the star witness of the prosecution, i.e., P.W.1.

P.W.1 has stated that this accused, having cut a tree, brought it on that day at the relevant time in the evening around 6.30 p.m. The accused, having kept that cut tree on the verandah of their house, sat near her father when P.W.1 was cooking food. It is also her evidence that this accused sat near the head of her father (deceased) and talked with him and ten minutes thereafter, two other accused persons, namely, Bhagaban and Kailash arrived there and they also joined. Her further evidence is that after some time, Bhagaban and Kailash asked her father Baraju (deceased) to provide them with some Masala Gundi for chewing and her father said to have no stock with him and when he was going to his house to bring it, those two accused caught hold of her father (deceased) when accused Rabi dealt a blow by means of a Katari on his neck whereby major portion of the neck was cut and Baraju fell down. It is also stated that at that time, all the accused persons felt that Baraju had died and, therefore, they all left the place. She states to have seen the incident when she immediately turned her attention hearing the shout raised by her father (deceased), who was then at a distance of only 5 to 6 cubits. The natural response of this witness, being the daughter of the deceased, can be marked from the fact, when she has stated that then she went to the house of Rout Bhadra to call her mother and brother, who were there and then they went to Grama Rakhi (P.W.2) to tell him about the incident. Her evidence is also to the effect that out of fear, they did not proceed towards their village and only when Grama Rakhi (P.W.2) came with him they went. Her further evidence is that after their arrival, Kailash came near the Grama Rakhi (P.W.2) and asked him to give Masala Gundi and when he refused after the discussion for some time, they took away the head of Baraju (deceased) from the spot. The written report (Ext.1) lodged by P.W.1 when is gone through, the same is found to be providing corroboration to her evidence on all such material particulars. During cross-examination, she has remained truthful in stating to have not heard anything about the discussion, which this accused was making with the deceased. Her evidence is on the score that after the Katari blow, when her father fell down, she went to call her mother and brother. She, having not stated before the I.O, first to have gone to the house of Routa as has been proved through the I.O. after drawing the attention of this witness to her previous statement, that in our view is not a material contradiction when the Grama Rakhi (P.W.2) has stated that this P.W.1 and her mother were there in his house and there, they had disclosed about the incident especially the role of this accused to him. He had accompanied them to the house. This P.W.2 has also stated that when he with P.W.1 and her mother arrived, that Kailash asked for the Masala Gundi and that being refused, they insisted for betel and when he did not give anything, they threatened him and when he went to inform at the P.S. leaving the spot, they took away the head of the deceased. During cross-examination, he has asserted that P.W.1 had very much told him that this accused was one of the culprits. He has also stated to have not gone inside the house of the deceased because the dead body was lying in the courtyard. Despite cross-examination, we find no such material to have been brought out to disbelieve his version regarding the later part of the occurrence and also corroboration is being provided to the evidence of P.W.1 in that way.

The Katari, which has been seized under seizure list (Ext.3) has been found to be containing human blood of Group-A, which too provide corroboration to the evidence of P.Ws.1 & 2 and that apart the wearing apparels of this accused was found to be containing blood of human origin.

P.W.6, who is the brother of P.W.1, has also stated to have been told about the incident by P.W.1 in stating that he had gone with P.W.1 and her mother and called that Grama Rakhi (P.W.2) after hearing the occurrence from P.W.1.

The first I.O. (P.W.13) held inquest over the head and dead body of the deceased separately and then putting them together. P.W.6 has stated that when he arrived at the spot, he found the dead body of his father lying with cut injury and this accused then threw the cut head of his father at the spot and left the area. The incident has also been reported at the P.S. on the next morning, which keeping in view the manner in which the incident took place and the brutality involved is quite natural. We do not find any such material discrepancies or contradictions in the evidence of the daughter of the deceased (P.W.1) and the Grama Rakhi (P.W.2).

Even though the Trial Court, as it appears from the judgment, has acquitted the other two accused persons, namely, Bhagaban and Kailash, by taking a cue from the factum of non-seizure of the wearing apparels of those two that the prosecution has not shown as to whether those were stained with blood when the evidence stand that they were very closely situated with the deceased at the relevant time and thereby, has blamed the prosecution and doubted its case against those two; that is not a ground to discredit the positive version of P.W.1, who is none other than the daughter of the deceased and neither her presence at the spot is doubted nor her evidence in respect of the specific role played by this accused.

With all these overwhelming evidence on record, which according to us, are wholly reliable, we find absolutely no reason/justification to tinker with the finding of guilt of the accused as has been returned by the Trial Court.

In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 8th June, 2011 passed by the learned 1st Additional Sessions Judge, Cuttack in S.T. Case No.360 of 2008 (Tr. No.42 of 2008), are hereby confirmed.

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