This is a criminal appeal against a conviction and sentence for murder. The High Court examined the evidence of the deceased's wife and son, corroborated by medical and police testimony. Finding the evidence consistent and credible, the court upheld the trial court's verdict.
Appeal dismissed; conviction and sentence under sections 302 and 447 IPC confirmed.
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.
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.336 of 2016
In the matter of an Appeal under Section 374 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and the order of sentence dated 19th May, 2016 passed by the learned Sessions Judge, Phulbani, in Sessions Trial No.212 of 2011.
Dhaneswar Kanhar …. Appellant
-versus-
….
State of Odisha Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mr.R.B. Dash (Advocate as Amicus Curiae) For Respondent - Mr.Dillip Kumar Mishra, Additional Government Advocate
CORAM:
MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI
Date of Hearing : 23.08.2023 : Date of Judgment:28.08.2023
D.Dash,J. The Appellant, by filing this Appeal, has called in question the judgment of conviction and the order of sentence dated 19th May, 2016 passed by the learned Sessions Judge, Phulbani, in Sessions Trial No.212 of 2011 arising out of G.R. Case No.217 of 2011 corresponding to Phiringia P.S. Case No.19 of 2011
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of the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Phulbani.
The Appellant (accused) thereunder has been convicted for committing the offence under section 302/447 of the Indian Penal Code, 1860 (for short, 8the IPC9). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.500/- (Rupees Five Hundred) in default to undergo rigorous imprisonment for one (1) month for commission of the offence under section 302 of the IPC and undergo rigorous imprisonment of one (1) month and pay fine of Rs.100/- (Rupees One Hundred) for commission of the office under section 447 of the IPC, with the
that the substantive sentences would run stipulation concurrently.
2. Prosecution Case:- On 11/12.06.2011 around 1.00 a.m., Gurban Kanhar (deceased) was sleeping on a cot in his courtyard and his wife, namely, Kituri Kanhar (P.W.5) and son Sarat Kanhar (P.W.15) and his mother were sleeping nearby on the floor. It is stated that the accused, being armed with an axe, all of a sudden appeared there in the courtyard and it was in a bid to take revenge for the death of his wife. Despite resistance and without caring the same, the accused is said to have inflicted three blows on the neck and chest of Gurban (deceased) resulting his death. The wife (P.W.5),
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the son (P.W.15) and mother of the deceased then cried saying <Maridela Maridala= . Hearing this, co-villager, namely, Parikhia Bagarti (P.W.1) and others rushed to the place and saw the deceased lying dead on the cot with injuries on his neck and chest etc. The wife (P.W.5), son (P.W.15) and mother then narrated the incident to them.
On the day following, Parikhita (P.W.1) lodged the written report (Ext.1) with the Assistant Sub-Inspector of Police (A.S.IP.W.17) attached to Phiringia P.S., who, in the absence of Officerin-Charge (OIC) of said P.S., was discharging the duty as such. Receiving the said written repot (Ext.1) from P.W.1, he (P.W.17) treated the same as FIR and registering the case, took up investigation.
3. In course of investigation, he (P.W.17) examined the informant (P.W.1) and other witnesses. The accused, having surrendered at the P.S. carrying the axe, he was taken to custody and his statement was recorded followed by the seizure of the axe under the seizure list (Ext.4). The A.S.I. of Police (P.W.17) then visited the spot and prepared the spot map (Ext.16). He also held inquest over the dead body of the deceased and prepared his report to that effect in presence of the witnesses (Ext.3/1). He collected and seized the blood stained earth and sample earth under the seizure list (Ext.2/1) and sent the dead body for post
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mortem examination by issuing necessary requisition. He also seized other articles, which according to him, were incriminating. The accused was forwarded in custody to to Court. On 22.06.2011, he (P.W.17) handed over the charge of the investigation of the case to the Officer-in-Charge (OIC-P.W.18), who came to join. He (P.W.18) received the post mortem report and sent the same for chemical examination through Court. On completion of the investigation, Final Form placing the accused to face the Trial for commission of the offences under section 302/447 of the IPC was submitted.
4. Learned S.D.J.M., Phulbani, on receipt of the Final Form, took cognizance of said offences 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 the accused.
5. The prosecution, in support of its case, has examined in total eighteen (18) witnesses during Trial. As already stated, the informant, who had lodged the written report (Ext.1) is the wife of the deceased whereas P.W.15 is their son. The Doctor, who conducted the post mortem examination over the dead body of the deceased is P.W.12 and two I.Os are P.Ws.17 & 18 respectively.
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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 18. Important of those, are the FIR (Ext.1); inquest report (Ext.3/1); post mortem report (Ext.12); the spot map (Ext.16); and the chemical examiner9s report has admitted in evidence and marked Ext.18.
6. The accused, in support of his defence of denial and false implication, however, without examining any witness, has proved two documents (Exts.A & B).
7. The Trial Court, on going through the evidence of the Doctor (P.W.12), who had conducted the autopsy over the dead body of the deceased and his report (Ext.12) as also the evidence of other witnesses including the informant (P.W.1), has arrived at a conclusion that Gurban (deceased) met a homicidal death. In fact, said aspect of the case was not under challenge before the Trial Court and that is also the position before us in this Appeal.
8. It is the evidence of the Doctor (P.W.12), who had conducted the post mortem examination over the dead body of the deceased, that he had noticed three stabbed injuries over the neck, chest and abdomen of the deceased. He too has stated that the exact seat of those injuries and their dimensions. It has also
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been stated by him that there was fracture of sternum at third intercostal space right to mid line. He has found the pleura to have been ruptured, trachea, cut just above the sternum and both the lungs to have collapsed. As per his evidence, all such injuries are anti mortem in nature and the death was on account of massive injuries to large blood vessels (superior vanacava) resulting in cardia tamponda collapsed. His evidence is that the nature of death was homicidal.
In addition to the above, the first I.O (P.W.17), who had held inquest over the dead body of the deceased, has also noted such injuries in his report (Ext.12). The witnesses including the wife and son of the deceased, P.Ws.5 & 15 respectively have stated to have seen the deceased lying with the injuries on his person.
Above stated unchallenged evidence, when has not even been admitted to be impeached, this Court finds all the reasons to concur with the finding of the Trial Court that Gurban met a homicidal death.
9. Mr.R.B.Dash, learned Amicus Curiae for the Appellant (accused) submitted that the prosecution case mainly based upon the evidence P.Ws.5 & 15, who are the wife and son of the deceased respectively. According to him, the evidence of these two witnesses, on vital aspects of the case as also the role played
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by the accused and the act done, do not tally with one another. He submitted that the evidence of P.Ws.5 & 15 run contradictory to one another and they, being highly interested in the success of the prosecution and in view of their prior enmity with the accused, the Trial Court ought not to have relied on their evidence to fasten the guilt upon the accused.
10. Mr.D.K. Mishra, learned Additional Government Advocate for the Respondent-State submitted all in favour of the finding of the Trial Court in holding the accused guilty of committing the murder of Gurban. He further submitted that P.Ws.5 & 15 when read as a whole exhibit the ring of truth and there being no such inherent infirmity and improbability in their evidence when those again find corroboration from the medical evidence and the evidence of post occurrence witnesses, the Trial Court has rightly convicted the accused for committing the offence under section 302 of the IPC.
11. Keeping in view the submissions made, we have carefully gone through the impugned judgment of conviction. We have also travelled through the depositions of the witnesses examined from the side of the prosecution as P.Ws.1 to 18 and have perused the documents admitted in evidence marked as Exts.1 to 18.
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12. Admittedly, the prosecution has projected the wife and son of the deceased, i.e., P.W.5 & P.W.15 as the eye witnesses to the occurrence, which took place in the fateful night in the courtyard of the deceased.
In the premises as above, this Court is first of all called upon to examine the evidence of P.Ws.5 & 15 in judging the sustainability of the finding of the Trial Court holding the accused guilty of committing the murder of Gurban.
13. Law is well settled that simply because the witnesses happen to be close relations of the deceased, their evidence is not to be viewed with suspicion unless glaring infirmities appear therein to indicate that their evidence is exaggerate and highly improbable.
P.W.5 has stated that in the night, she was sleeping on the floor near hear husband, who was then sleeping on the cot placed in the courtyard. It is further stated by her that when they were sleeping with their mother-in-law and children on the ground, the accused came holding an axe and no sooner did he arrive, he dealt two blows on the neck of the deceased and one on the right side belly. The natural reaction of this witness has been expressed when she says that immediately she raised the cry. Hearing the cry, the villagers arrived. It has also been stated by her that such act was done by the accused as he was suspecting her husband to
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be engaged in practicing witchcraft in causing definite harm to others. During cross-examination, she has stated that they were sleeping behind their house and her husband then was sleeping on the cot. It is stated by her that when she woke up, she found the accused to have been assaulting her husband. Her evidence appears to be quite natural and her presence in the night by the side of her husband (deceased) as has assertively been stated has not been shaken during cross-examination. The witness, having stated in <Kui= language, the Trial Court has taken the help of an interpreter by administering oath on him to record her evidence. With above, the evidence of the wife of the deceased (P.W.5), evidence of her son (P.W.15) being gone through, it is seen that he too has stated in the same vein. The son of the deceased (P.W.15) has stated that the accused, having arrived there, assaulted his father on his neck by an axe and when her father shouted, they woke up and questioned the accused, who told that as his mother had been killed by the deceased by practicing witchcraft, was in a bid to take revenge. It has also been stated by the son (P.W.15) that the accused dealt axe blows on the chest and belly of his father and when the wife of the deceased (P.W.5) raised the cry, P.W.1 and others arrived at the spot.
The informant (P.W.1) has stated that hearing the cry, he went from his house where he was then sleeping and he having
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arrived at the spot, saw Gurban (deceased) lying dead in his courtyard on a Cot with injuries on his neck, chest and belly. He further states that on his asking, P.W.5 and the mother of the deceased told them about the happenings in the incident wherein the accused inflicted the injures by means of an axe on the deceased. This witness, having been cross-examined, no such material is found to have been elicited to discard his version. He has remained firm in his evidence as to have seen the accused assaulting his father to death. It has also been deposed that this (P.W.15) that it was a moonlit night.
The evidence of all these witnesses further derive support from the evidence of the Doctor (P.W.12), who had conducted the autopsy over the dead body of the deceased, when he has stated about the injuries noticed by him on the body of the deceased in further stating were possible by the axe.
The first I.O. (P.W.17) has again deposed that the accused surrendered at the P.S. with the axe which he has seized under Ext.4 in presence of the witnesses.
With all these evidence on record, which according to us, are quite consistent and thus acceptable, in our considered view, the finding of the Trial Court holding the accused guilty of committing the murder of Gurban is not liable to be interfered with.
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14. In the result, the Appeal stands dismissed. The judgment of conviction and the order of sentence dated 19th May, 2016 passed by the learned Sessions Judge, Phulbani, in Sessions Trial No.212 of 2011 are hereby confirmed.
(D. Dash), Judge.
Dr.S.K. Panigrahi, J. I Agree.
Basu
(Dr.S.K. Panigrahi),
Judge.
Signature Not Verified
Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 29-Aug-2023 14:14:45
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2 issues framed by the court
Whether the evidence of the deceased's wife and son, being close relations, is sufficient to sustain the finding of murder.
Whether there are glaring infirmities or improbabilities in the prosecution witnesses' evidence.
3 provisions across 2 enactments
Dhaneswar Kanhar
State of Odisha
D. Dash
S.K. Panigrahi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
