Sada Bentakar vs State Of Odisha

Dr. S.K. Panigrahi, J.

In this JCRLA, the convict/ Appellant (Sada Bentakar) challenges the judgment of conviction and order of sentence dated 04.10.2008 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.65 of 2008, whereby the Petitioner was convicted and sentenced to undergo imprisonment for life for commission of offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “the I.P.C.” for brevity).

I. CASE OF THE PROSECUTION:

On 27.10.2007, a quarrel occurred at village Tangartali due to some issues relating to distribution of wages between Pari Bentakar-the deceased and Macchi Bentakar(Tractor Driver). When Machhi Bentakar came and asked for his money, though he did not have any share in the wages, there was a quarrel between the deceased and Machhi Bentakar. During the altercation, Pari Bentakar dealt a slap to Machhi Bentakar. The present Appellant is the maternal uncle of Machhi Bentakar and he was told by Machhi that Pari Bentakar assaulted him. The Appellant being angry came with a ‘Budia’ threatening that he would murder Pari Bentakar and assaulted by means of the said Budia on the head of the deceased, as a result of which the deceased sustained severe bleeding injuries and his brain matters came out and he fell on the ground. Having heard the said information, one Dhaneswar Nayak (P.W.1), the Ward Member of Ward No.12 of Raisuan Gram Panchayat, rushed to the post. He found that the deceased was lying in a pool of blood. He was narrated about the incident by the mother of the deceased. Then P.W.1 lodged F.I.R. at Keonjhar Sadar Police Station on the same night at around 07.30 P.M. Thereafter, the investigation proceeded. The deceased was taken to District Headquarters Hospital, Keonjhar in an injured condition for medical treatment. The deceased died at the hospital while undergoing treatment in the same night at around 11.15 P.M. The Appellant was arrested and after completion of investigation, he was charge sheeted under Section 302 of the Indian Penal Code. After the charge was framed, the trial was completed by the Learned District and Sessions Judge, Keonjhar and the Appellant was convicted under Section 302 of IPC and sentenced to undergo imprisonment for life. Hence, this appeal.

II. SUBMISSION OF THE APPELLANT:

Mr. C.R. Sahu, Learned Counsel for the Appellant strenuously argued that the deceased died after a certain gap due to the injuries inflicted on him. Hence, the dying declaration could have been obtained by the prosecuting agencies which they have miserably failed to record. The said document could have established the truth in the right direction. He further submitted that the accused/ Appellant himself was injured; however, he has not taken the plea of private defence .

He further submitted that the eyewitness P.W.2-Peer Bentakar is the wife of cousin of the deceased. The evidence advanced by P.W.2 cannot be taken as a gospel truth in order to establish the complicity of the present Appellant.

III. SUBMISSIONS OF THE STATE/ RESPONDENT

Ms. Samapika Mishra, learned Additional Standing Counsel for the State submitted that the prosecution has examined as many as six witnesses. P.W.1 is the Ward Member of the village, and he is also the neighbor of the accused. He stated that Pari Bentakar (the deceased), Machhi Bentakar (the nephew of the deceased) and others were labourers working in a tractor on the fateful day. Pari and other labourers were working in the said tractor. There was quarrel between them relating to distribution of wages among themselves. Since Machhi Bentakar demanded more wages, Pari told that since he had not gone for work, he would not get the wages. When Machhi insisted for payment of his share of wages without doing any work, Pari slapped Machhi. Thereafter, Machhi went and called the Appellant who is his maternal uncle. The Appellant came with a tangia and assaulted the head of Pari Bentakar causing severe bleeding injury and the brain matter came out of his head. Pari fell on the ground. Accused Sada thereafter smeared blood of Pari on his own face. P.W.1 narrated the whole incidents to the police and lodged F.I.R. orally which was later reduced into writing under Ext.1.The entire incident took place at 4.00 PM. in the afternoon. Due to assault by the accused on the deceased with a tangia, Pari died around 11.00 P.M.

She further submitted that though the facts have been written in the F.I.R., those facts have not been confronted by the defence. P.W.2 (Par Bentakar), the wife of the cousin of the deceased who reached the occurrence spot at that time stated that Pari was lying on the ground, and she took him to the Hospital. She had also seen the occurrence. P.W.3 (Kalu Bentakar) is a co-villager and has stated that he was working as a labourer in the tractor. The occurrence took place in front of house of his uncle Paga Bentakar. He saw the accused Sada Bentakar assaulted Pari by means of a tangia at the back side of his head. Pari fell with bleeding injury. Pari was taken to hospital. In that hospital Pari died.

Learned Counsel for the State submitted that P.W.3 is also an ocular witness who saw the accused assaulting the deceased by means of a tangia at the back side of his head. P.W.3 is also a credible witnesses whose evidence has the requisite relevance to prosecute the present Appellant and thus, cannot be disbelieved.

IV. COURT’S REASONING AND CONCLUSION:

The case of the prosecution mainly rests upon the testimony of eyewitnesses i.e., P.W.2 & P.W.3. P.W.2(Per Bentakar) is the wife of the cousin of the deceased and she was an eyewitness to the occurrence whereas P.W.3 (Kalu Bentakar) was the neighbor of the Appellant. It is not in dispute that there was a quarrel between Macchi Bentakar and Pari Bentakar as the same can be confirmed from the deposition of P.W.2. The deposition of P.W.2 confirms the fact that there was a quarrel between the deceased and Macchi Bentakar over distribution of wages and Macchi demanded his share of wage though he had not gone to work on the said day. In the cross examination, P.W.2 had testified that the place of quarrel over the distribution of wage was more than 100 yards from her house and she rushed to the spot after hearing the quarrel. Moreover, the defence has not disputed the factum of quarrel between Macchi and the deceased over distribution of wages. It is thus an admitted fact that Macchi and the deceased quarreled over distribution of wages and it spiraled to the point that the deceased slapped Macchi following which Macchi informed the Appellant and the Appellant assaulted the deceased with an axe and killed him.

The pertinent question that comes to the fore in the present scenario is that whether P.W.2 & P.W.3 had actually witnessed the Appellant assaulting the deceased as their testimony in the cross-examination reveal that they heard of the quarrel and reached the spot and saw the deceased lying in a pool of blood. The deposition of P.W.3 reveals that he witnessed the Appellant assaulting the deceased by a tangia at the back side of his head, while returning from the nearby pond. However, the testimonies of P.W.2 and P.W.3 in the cross-examination provide that they rushed to the place of occurrence after hearing shouts and found the deceased lying in a pool of blood. Merely, from this it is not inferable that they had not seen the Appellant causing injuries upon the deceased nor their version on that score can be doubted. When they have categorically stated that they were not near the Appellant and the deceased and hearing shout they went to the spot. So before that actual assault having been made; we cannot discarded their version that they had seen the Appellant assaulting the deceased when P.W.3 states that the occurrence took placed near his house and that is not denied and P.W.2 says to have seen the same from a distance. Thus, from their version that when they arrived near the spot, they saw the deceased lying in a pool of blood, by no stretch of imagination we can say that their statement as to have seen the Appellant dealing axe blow upon the deceased.

The circumstantial evidence in the present case affirms the deposition given by P.W.2 & P.W.3. It is because, neither the existence of quarrel between the deceased and Macchi has been disputed nor there is any evidence on record to show that the Appellant acted in private defence at the spot of occurrence due to which the deceased sustained serious head injuries. As per the Chemical Examination Report of the Forensic Science Laboratory, the weapon of offence i.e., axe contained deep traces of human blood of ‘A’ group and the lungi of the deceased contained moderate traces of human blood of ‘A’ group and this constitutes an item of evidence against the Appellant. Furthermore, P.W.5 after thorough examination of the weapon opined in affirmative that the said weapon could inflict an injury of such gravity. If the depositions of P.W.2 & P.W.3 are considered along with the documentary evidence on record and medical evidence of P.W.5, it is crystal clear that the evidence is natural, trustworthy and acceptable.

Learned Counsel for the Appellant has contended that the dying declaration could have been obtained by the prosecuting agencies which would have established the truth in the right direction. Further, it has been submitted that evidence advanced by P.W.2 and P.W.3 cannot act as the sole basis for conviction as P.W.2 is the wife of the cousin of the deceased and P.W.3 is a neighbor of the deceased. However, we are of the opinion that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise.

In the case at hand, even though the dying declaration of the deceased was not recorded, the evidentiary value of the deposition of P.W.2 & P.W.3 combined with and corroborated the circumstantial evidence and Chemical Examination Report, affirms the guilt of the Appellant.

In the case of Shivaji Sahebrao Bobade v. State of Maharashtra(1973) 2 SCC 793, the Supreme Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. The Court observed:

"It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs."

In Anil Phukan v. State of Assam (1993) 3 SCC 282 : JT 1993 (2) SC 290 , the Supreme Court observed;

"Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.”

Furthermore, in the present case, the Appellant was present at the murder spot while the incident occurred, and he was also the only person who had sustained minor injuries due to scuffle with the people in the crowd. This fact carries greater significance as the Appellant was confronted violently by some people in the crowd. Even though, it cannot be construed from the above-mentioned fact that the Appellant was the one who murdered the deceased; but that again provides corroboration to the evidence of P.W.2 and P.W.3. The very conduct of the Appellant in dealing a fatal blow with an axe to the head of deceased by coming out of his house holding that and the gravity of the injury that the deceased suffered to the extent that his brain matter came out, establishes the Appellant’s guilty intention.

P.W.5, the Asst. Surgeon, who examined the Appellant, found on him one bruise of size 2” x 2” on right malar prominence of face and a laceration of size ¼” x ¼” on right upper lip. P.W.5 opined that those injuries were quite simple in nature and might have been caused by hard and blunt weapon or might have been possible because of fall on hard and rough surface. It is the story of the prosecution that the Appellant was assaulted as someone at the spot acted in retaliation being unable to bear the gravity of injury that the deceased had sustained because of the act of the Appellant. Considering the nature of injuries sustained by the Appellant, we are of the view it might have been possible because of scuffles between the people present at the spot and the Appellant. There is no reason to disbelieve the prosecution story when the Appellant has not taken the plea of right of private defence either before the Trial Court or in the Criminal Appeal and it is not also said that the deceased was then armed. Therefore, it cannot be also said that the injuries sutained by the Appellant have not been explained. Learned counsel for the Appellant, however, submits that the Appellant is entitled to the right of private defence and even though they have not pleaded. We see no force in this submission. As already noted, the injuries on the Appellant are very minor and the prosecution has adequately explained as to how the Appellant suffered such injuries and there is no reason to reject the prosecution case as untrue. We may incidentally mention here that there is not a whisper from the side of the Appellant as to how he received the injuries. No doubt the burden is not on him but in appreciating the facts of the case, that aspect also must be borne in mind.

It is well-settled that even if an accused does not plead self-defense, it is open to the Court to consider such a plea if the same arises from the material on record. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. In the instant case, not only the plea of private defence was not taken by the Appellant in their statement but also, no basis for that plea was laid in the cross-examination of the prosecution witnesses or by adducing any defence evidence. In our opinion the burden of establishing that plea was not discharged in any manner by the Appellant even applying the test of preponderance of probabilities in favour of that plea. There is absolutely no material in the records of this case to lead to any such conclusion. On the other hand, the prosecution has satisfactorily explained as to how the Appellant suffered injuries and we believe that such explanation is cogent and genuine. The submission of Learned Counsel for the Appellant thus fails.

In the present case, the dying declaration of the deceased was not recorded even though he died later at the hospital. However, in view of the discussion of evidence of P.W.2 and P.W.3 coupled with the overwhelming circumstances proved which provide corroboration to the evidence of P.W.2 and P.W.3; non-recording of the dying declaration or the relationship of P.W.2 and P.W.3 with the deceased are not of such significance so as to disbelieve them or push all such evidence into thick closed of doubt. Thus, we hold that the prosecution has proved the guilt of the Appellant beyond all reasonable doubt.

The result is that this appeal is without merits and the same is liable to be dismissed. We do so, confirming the judgment of conviction and order of sentence dated 04.10.2008 passed by the learned Sessions Judge, Keonjhar in Sessions Trial Case No.65 of 2008.

The Appellant, who is stated to be on bail, vide order dated 20.11.2014 passed by this Court in Misc. Case No.152 of 2014 arising out of JCRLA No.18 of 2012, is directed to surrender before the trial court forthwith to undergo the sentence.

The trial court is directed to take all such effective steps immediately in accordance with law to secure the presence of the Appellant to undergo the sentence as imposed..

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