Dismissed

Panu Charan Behera v. State

Orissa HC8 Aug 2019JCRLA/122/2004

Case brief

AI extract

What is this about?

The High Court of Orissa dismissed the criminal appeal and affirmed the conviction and sentence of life imprisonment and fine under Section 302 IPC. The court accepted the testimony of mother and brother-in-law as trustworthy eyewitnesses, concluding the accused intended to murder his father and brother due to prior threats and use of a deadly weapon.

What did the court decide?

The appeal was dismissed; the conviction under Section 302 IPC and the sentence of life imprisonment and fine were upheld.

Panu Charan Behera Vs State — Murder and Culpable Homicide | Orissa HC (2019)

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HIGH COURT OF ORISSA: CUTTACK.

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Jail Criminal Appeal No.122 of 2004

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An application under Section 383 of the Code of Criminal Procedure against the judgment of conviction and sentence dtd.06.10.2004 of learned Ad hoc Addl. Sessions Judge (FTC) Nayagarh in S.T. Case No.13/15 of 2004-01.

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Panu Charan Behera ….…… Appellant. - VersusState of Odisha …….… Respondent.

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Counsel for Appellant : Mr. Himanshu Sekhar Dash, Amicus Curiae.

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Counsel for Respondent : Mr. K. K. Mishra, Addl. Govt. Advocate.

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PRESENT:

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THE HONOURABLE SRI JUSTICE S. K. MISHRA. &

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THE HONOURABLE DR. JUSTICE A. K. MISHRA.

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--------------------------------------------------------------------------------------- Date of hearing and Judgment : 08.08.2019

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Dr. A. K. Mishra, J. This appeal is preferred by the appellant from prison

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U/s.383 Cr.P.C. assailing his conviction U/s.302 of the Indian Penal Code (for short ‘the I.P.C.’) and sentence of imprisonment for life and fine of Rs.10,000/-, in default of payment of fine, further rigorous imprisonment of one year passed by learned Ad hoc Addl. Sessions Judge (F.T.C.), Nayagarh in his judgment dtd.06.10.2004 in S.T. Case No.13/15 of 2004-01.

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Prosecution case in a nutshell is that deceased Mahadev Behera had three sons. Accused is the eldest son. Deceased Sarat Behera is the youngest one while informant is the second son. Mahadev was working as a drozer driver in the Irrigation Department. Deceased Sarat had a shop in the outskirt of village Dhabalei. All the three sons were separate and were living in different houses. Accused was an addict of intoxicant. He was demanding money in regular intervals from father and brothers. He was picking up quarrel when money was not paid. Prior to the incident he had threatened and went away to live in his father-in-law’s house.

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On 07.03.2000 he returned and threatened to kill his father and younger brother but his mother (P.W.8) could able to snatch away the ‘Farsa’ and persuaded him to go back.

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On 09.03.2000 at about 8 P.M. accused, holding a piece of wood, commonly known as ‘Dhada’ or ‘ballah’, searched his father and brother Sarat in the house to kill them. When he did not find them, he ran towards the shop of his younger brother shouting to kill them. On the way he found deceased Sarat coming on a bicycle. He dealt a blow by means of that wooden ‘dhada’. Sarata sustained injuries, fell down and died. His father Mahadev was standing near their shop at a distance of about 20 cubits. Accused ran there and dealt a blow to his head. He also fell down and died. Then the accused fled away.

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While accused was proceeding with the wooden piece to kill his father and brother, his wife and mother, P.W.8 and 7 respectively, were following him and had seen the incident. The villagers gathered after the incident. The second son Sudarsan lodged F.I.R. on that night which was registered as Odagaon P.S. Case No.17 dtd.10.03.2000.

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In course of investigation inquest was made, so also post mortem was conducted by P.W.11 doctor. The I.O. seized the wooden ‘dhada’ as weapon of offence from the spot, stained with human blood (M.O.VIII). After completion of investigation charge-sheet was submitted. The case was committed to the court of Sessions. Accused was put to trial for offence U/s.302 I.P.C.

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The accused abjured his guilty in defence.

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In order to bring home charge, prosecution examined 12 witnesses. Defence examined none. The seized wooden ‘dhada’ is made M.O.VIII. Out of prosecution witnesses P.W.5 and 6 are post occurrence witnesses. P.W.9 is the wife of the accused who denied to have any knowledge about the actual incident but admitted that she with accused were staying in the house of her father prior to the incident. P.W.10, sister’s son of the accused denied to have any knowledge about the incident. P.W.1 is the informant. He stated that his mother and brother’s wife stated that accused had killed his brother and father for which he lodged the F.I.R. (Ext.1). P.W.2, 3 and 4 are post occurrence

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witnesses. They have seen the inquest over the dead bodies. P.W.3 is a witness to seizure to the weapon of offence, piece of wood.

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Learned trial court believed the evidence of P.W.7 and 8 as trustworthy and reliable eye witnesses. He accepted the evidence of doctor and found that the death of deceased Mahadev and Sarat were homicidal in nature. He inferred intention of the accused from the fact that the accused had left the house and was staying in his father-inlaw’s house prior to the incident when he was not given money and had also threatened to kill both the deceased. Accordingly he convicted the accused U/s.302 I.P.C. and sentenced him as stated above.

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Learned Amicus Curiae for the appellant – convict submits that accused had no intention to murder his father and brother as he used wooden piece which cannot be said a weapon to commit murder. He assiduously argued that the incident having occurred without premeditation, in a spur of moment, the offence committed at best can be said to be a culpable homicide not amounting to murder, punishable U/s.304 Part-I I.P.C.

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Mr. K.K. Mishra, learned Addl. Government Advocate supports the judgment on the grounds stated therein. He submits that the appreciation made by the learned lower court to the evidence of eyewitnesses cannot be seen with tainted eye, and the size and length of

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the woodenS piece is sufficient to infer that accused had intended to commit murder and no interference is called for in this appeal.

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We carefully perused the evidence on record keeping the rival contentions in view.

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It is undisputable that death of deceased Mahadev Behera and his son Sarat Behera was homicidal in nature. The doctor (P.W.11) found injuries on the parietal region of both the deceased persons which could have been caused by the wooden piece (M.O.VIII). The post mortem examination reports are Ext.9 and Ext.10. The post mortem was conducted on 10.03.2000. Thus the prosecution is found to have proved the nature of death as culpable homicide.

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The weapon of offence is M.O.VIII. It was seized from the spot by the investigating officer (P.W.12) which gets corroboration from independent sources. As per I.O. (P.W.12) the seized wooden piece was 89 cm length having 13 cm girth at one end and 17 cm on the other end.

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The evidence of wife of accused P.W.9 proves that on the date of occurrence she was in her father’s house at village Tarenipalli at Ganjam and accused, leaving her there few days prior to the occurrence, had gone away.

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P.W.7 is the wife of deceased Sarat. P.W.8 is the wife of deceased Mahadeva. Both of them have stated and corroborate to each other that accused having not given the demanded money by the deceased father and younger brother, had threatened them and had left the house with his family to stay in his father-in-law’s house. Their evidence also proves that prior to occurrence, the accused had developed a habit of quarreling when his demand was not met by his father and younger brother and had threatened to kill them.

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Thus, relationship amongst the accused, deceased and witnesses is established to the hilt, so also the hostile animus of accused against his father and brother.

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Mother of accused is the wife of deceased Mahadev. She is P.W.8. P.W.7 is the wife of deceased Sarat. Both of them are eye witnesses. They have stated that accused came at evening with a wooden dhada, shouted to kill his father and brother. He searched inside the house uttering abusive words, then ran towards the shop. Both she (P.W.7) and P.W.8 ran after him. On the way while deceased Sarat was coming in his bicycle, accused dealt a blow by the wooden ‘dhada’ on his head. He fell down and died. The blood and brain substance came out. Their shop was at a distance of 20 cubits. Deceased Mahadev was there. The accused rushed and dealt wooden dhada blow to him, as a result he died. Both of them stated that

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accused threw the wooden ‘dhada’ at the spot and fled away in the cycle of deceased Mahadev leaving his chapple. Thereafter villagers gathered. P.W.7 identified the wooden dhada and the chapple, M.O.VIII and M.O.VII respectively.

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Nothing material has been elicited from the crossexamination to discredit their testimonies. The said chapple was seized by the I.O. (P.W.12) under seizure list Ext.5 from the spot. The blood stained piece of wood was also seized from the spot vide Ext.6.

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The sequence of events stated by these two witnesses, i.e. P.W.7 and 8 confirms their credibility and truthfulness. Mother is expected to tell the truth when victims are her husband and son.

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Having carefully scrutinized the evidence of P.W.7 and 8, we do not find any dust of doubt. Learned lower court has rightly appreciated their testimonies.

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The guilty intention of accused to commit murder is illuminating not only from his previous hostile attitude but also from his subsequent conduct of abscondance. The accused, as per I.O., was arrested on 19.03.2000 at Odagaon bus stand. It means the accused, having knowledge about death of his father and brother did not react in a normal way to attend their death rituals. Such un-natural conduct

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commensurable with abscondance, gives assurance to the truthfulness

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of the testimonies of mother and his brother’s wife.

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On fresh appreciation of evidence on record, we find no reason to depart from the conclusion arrived at by the learned Trial Court. The discrepancies are inconsequential being natural when witnesses depose after some years. The defence plea does not appear probable. The offence made out is culpable homicide amounting to murder. The conviction U/s.302 I.P.C. suffers from no infirmity or illegality. The sentence awarded is the minimum.

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In the result the appeal fails and it is dismissed.

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………………………. Dr. A.K.Mishra, J.

S.K.Mishra,J

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S.K.Mishra, J.

Orissa High Court, Cuttack,

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Dated the 8^th January, 2019/MKP

Panu Charan Behera v. State

Case brief

What is this about?

What did the court decide?

Panu Charan Behera v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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