The High Court of Orissa, Cuttack dismissed the appellants' appeal against conviction and sentence. The court held that the sole eyewitness testimony was reliable and corroborated by the recovery of weapons led by the accused themselves under Section 27 of the Evidence Act.
Appeal dismissed; LCRs returned to the lower court immediately.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF ORISSA: CUTTACK.
JCRLA No.121 of 2004.
(From an order dated 7.9.2004 passed by Shri S.K. Ray, Adhoc Addl. Dist. and Sessions Judge, Sundergarh in S.T. Case No.214/11 of 2003)
Dhani Tappo & Another ….…… Appellants. - VersusState of Orissa …….… Respondent. Counsel for Appellants : Mr. Samarendra Mohanty Counsel for Respondent : Mr. K. K. Mishra (Addl. Government Advocate.)
PRESENT:
THE HONOURABLE SRI JUSTICE S. K. MISHRA.
&
THE HONOURABLE DR. JUSTICE A. K. MISHRA.
Date of hearing: 25.07.2019 : : Date of Judgment :19.8.2019
Dr. A. K. Mishra, J. The appellants have assailed their conviction under
Section 302/34 of the Indian Penal Code (in short “I.P.C.”) and sentence to undergo imprisonment for life by Adhoc Addl. Sessions Judge, Sundergarh
vide judgment dated 07.09.2004 in S.T. Case No.214/11 of 2003.
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On 11.02.2003 at about 8:30 P.M. in village-Kurumkela while informant (P.W.1) was going towards Bettle shop along with Sankarshan Majhi (P.W.5) heard screaming sound of his deceased-brother coming from the house of Dhani. He rushed inside and saw that the accused persons were assaulting the deceased by means of Hammer (Ghan) and bomboo stick. The informant requested them not to assault, he was threatened. He came back and informed the matter to the villagers. All of them went to the house of the appellant. They found the dead body of deceased lying in the inner court yard of the appellants with bleeding injuries. The family members of the appellants were found absent from the house. On that night villagers informed the incident over phone to police station. But on next day morning P.W.5 lodged written FIR which was registered as Talsara P.S. Case No.8 of 2003. The investigation was ensued. Inquest over the dead body was made. P.W.15-Doctor conducted postmortem. Both the accused persons were apprehended. Accused Dhani gave the recovery of weapon of offence Hammer (Ghan) and bamboo stick which were seized. Chemical
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examination was done. After completion of investigation charge-sheet was submitted. After taking cognizance the case was committed to the Court of Sessions. Both the appellants faced trial for the charge of offence under Section 302/34 of IPC.
Prosecution examined 19 witnesses out of them P.W.1-
informant is the eye witness P.Ws.2,3,5,9,10,11,14 and 19 are villagers and post occurrence witnesses. P.Ws.6, 7 and 8 are witnesses to the seizure. P.Ws.12 and 13 do not support the prosecution case. P.W.15-Doctor had conducted postmortem. P.W.17 is the Doctor who examined the weapon of offence, M.Os.-I and II and gave opinion vide Exhibit-18 and 19. P.W.16 made preliminary investigation while P.W.18 is the Officer-in-Charge who submitted charge-sheet after investigation.
2(c). The recovered weapon of offence Hammer (Ghan) and bamboo stick are made MOs.I and II. Amongst the documents exhibited, Exhibit-1 is the FIR while postmortem report is Exhibit-9. Spot map, disclosure of statement and chemical examination report are made Exhibits-12,13 and 17 respectively.
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deceased was homicidal in nature. He believed the eye witness-informantP.W.1 as trustworthy. He relied upon the discovery of new facts at the instance of accused, Dhani vide exhibit-13 in respect of M.Os.I and II, weapon of offence. Accordingly, he convicted both the appellants and passed sentence stated above.
Learned Additional Government Advocate, Mr. K.K.Mishra supported the judgment on the grounds stated therein. He countered the contention of learned counsel for the appellants stating that when murder is committed in the backdrop of enmity inside the house, the near relation who has seen the incident is not expected to allow the real culprit to escape. According to him, enmity is a double aged weapon and in the case at hand, it played as a motive. Learned Addl. Government Advocate, clarified that
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when villagers gave telephonic information, and police came, it cannot be said that investigation had commenced on getting information disclosing cognizable offence and for that the lodging of FIR after few hours cannot be seen with tainted eyes in the facts and circumstance of this case. Further, he submits that in a case of murder, the sole testimony of eye witness should be accepted to base conviction and the same being done by the learned trial judge, no interference is called for.
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offence, M.Os.I and II. Informant-P.W.1 has stated that he and deceased are step sons of Beji and accused-Dhani is the only son of their Badama and they are all separate in mess and they had land dispute. He has also stated that the house of the accused persons was consisted of two rooms being surrounded by mud boundary. This evidence proves the motive, i.e., prior enmity. Taking the gamut of prosecution evidence and the relationship of parties, it can be well said that P.W.1-informant had not resorted to vengeance to rope innocent persons in the murder of his brother. On careful scrutiny, the evidence of P.W.1 is found to have not suffered from the vices of enmity. What inspires confidence, in his testimony, is lack of self-contradiction. Even defence has not elicited any improbability during cross-examination.
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constables reached the spot. The villagers had seen the dead body lying inside the house.
The above testimonies clearly prove that P.W.1-informant had seen the occurrence and disclosed the same before villagers. Only because some of the villagers did not support the prosecution case fully, it cannot be
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said that P.W.1-informant had not seen the occurrence. The presence of P.W.1-informant at the time of occurrence and his reaction subsequent there to disclosing before the villagers are clearly established. The evidence of P.W.1-informant is cogent, clear and consistent, he is a wholly reliable witness.
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and disclosure statement of exhibits-3 and 13. There is nothing to doubt it. Statements made in the police custody are admissible to the extent that they can be proved by subsequent discovery of facts. Section-27 of the Evidence Act permits that a confessional statement made to a police officer while in police custody can be proved against him if the same leads to the discovery of an unknown fact.
In the decision reported in (2018) 16 SCC-161 Navaneethakrishnan Vs. The State by Inspector of Police it is held that;
“ When recovery is made pursuant to the statement of accused, seizure memo prepared by the Investigating Officer need not mandatorily be attested by independent witnesses. In the matter of: State Govt. of NCT of Delhi V/s Sunil & Anr , (2001) 1 SCC 652, it was held that non-attestation of seizure memo by independent witnesses cannot be a ground to disbelieve recovery of articles’ list consequent upon the statement of the accused. It was further held that there is no requirement, either under Section 27 of the Indian Evidence Act, 1872 or under Section 161 of the Code of Criminal Procedure, 1973 to obtain signatures of independent witnesses. If the version of the police is not shown to be unreliable, there is no reason to doubt the version of the police regarding arrest and contents of the seizure memos.
In sum and substance, Section 27 of the Indian Evidence Act, 1872 has prescribed two limitations for
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determining how much of the information received from the accused can be proved against him (1) The information must be such as the accused has caused discovery of the fact, that is, the fact must be the consequence, and the information the cause of its discovery; and, (2) The information must ‘relate distinctly’ to the fact discovered.”
In the case at hand the statement of accused persons leads to discovery of unknown fact, i.e., M.Os. I and II were used to cause injuries. Both M.Os.I and II were sent for chemical examination but only iron Hammer (Ghan) was found to have smeared with human blood. Non finding of blood in the seized lathi is inconsequential when Hammer(Ghan)-MO-1 recovered at the instance of accused is found to have smeared with human blood and P.W.1 has stated to have seen both accused persons were assaulting deceased. The common intention of both the accused persons are also proved by their act found at spot.
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evidence of P.W.1 is legal and prosecution is found to have proved its case beyond reasonable doubt. The conviction of appellants under Section 302/34 IPC and sentence awarded thereon do not warrant any interference.
Accordingly, the appeal stands dismissed.
LCRs be returned to the lower court immediately.
..…. …………………… Dr. A. K. Mishra, J.
S. K. Mishra, J. : I agree.
…. ……….………… S. K. Mishra, J.
Orissa High Court, Cuttack, Dated the ........Aug, 2019/pks
3 issues framed by the court
Whether the conviction of appellants under Section 302/34 IPC based on the testimony of a single eyewitness warrants interference.
Whether the recovery of weapon of offence at the instance of the accused under Section 27 of the Evidence Act corroborates the prosecution case.
Whether the appellate court should interfere with the sentence of life imprisonment awarded to the appellants.
Colour shows how this judgement treated each authority
Kartik Malhar Vs. State of BiharFollowed¶43
1996(1) SCC-614: Kartik Malhar Vs. State of Bihar · Who else cites this
Navaneethakrishnan Vs. The State by Inspector of PoliceFollowed¶47
(2018) 16 SCC-161 Navaneethakrishnan Vs. The State by Inspector of Police · Who else cites this
State Govt. of NCT of Delhi V/s Sunil & Anr.Relied on¶48
State Govt. of NCT of Delhi V/s Sunil & Anr., (2001) 1 SCC 652 · Who else cites this
2 provisions across 2 enactments
Dhani Tappo & Another
State of Orissa
S. K. Mishra
A. K. Mishra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
S. K. Mishra and A. K. Mishra
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