Dismissed

Byasa Chhatabarah v. State

Orissa HC11 Jul 2024JCRLA/27/2010

Case brief

AI extract

What is this about?

Husband convicted of murdering his wife based on circumstantial evidence: he was found alone with her in a locked room holding a blood-stained tangia. The High Court upheld homicidal death, motive from frequent quarrels over his unemployment, evidentiary value of related witnesses, his failure to explain under section 106, and dismissed the appeal confirming life sentence.

What the court decided

AI extract

Byasa Chhatabarah Vs State — Cheque Dishonour | Orissa HC (2024)

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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IN THE HIGH COURT OF ORISSA, CUTTACK

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JCRLA No.27 OF 2010

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An appeal under section 374 Cr.P.C. from the judgment and order dated 31.05.2010 passed by the Addl. Sessions Judge, Bolangir in Sessions Case No.19/14 of 2009.

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Byasa Chhatabarah	.......	Appellant
	-Versus-
State of Odisha	.......	Respondent
For Appellant:	-	Mr. Rabindra Nath Nayak Advocate
For Respondent: ------	- ----------------	Mrs. Sushama Rani Sahoo Addl. Standing Counsel -------

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P R E S E N T:

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THE HONOURABLE MR. JUSTICE S.K.SAHOO

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AND

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THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH

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--------------------------------------------------------------------------------------------------Date of Hearing and Judgment: 11.07.2024 ---------------------------------------------------------------------------------------------------

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By the Bench: The appellant Byasa Chhatabarah faced trial in the

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Court of learned Addl. Sessions Judge, Bolangir in Sessions Case No.19/14 of 2009 for commission of offence punishable under

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section 302 of the Indian Penal Code (hereinafter the ‘I.P.C.’) on

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the accusation that on 9^th September, 2008 at about 9.00 p.m.

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JCRLA No.27 of 2010 Page 1 of 33

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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at village Kuthurla under Tusura police station, he committed murder of his wife Banita Chhatabarah (hereinafter ‘the deceased’).

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The learned trial Court vide impugned judgment and order dated 31.05.2010 found the appellant guilty of the offence charged and sentenced him to undergo imprisonment for life and to pay a fine of Rs.25,000/-(rupees two five thousand), in default, to undergo rigorous imprisonment for a period of two years.

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Prosecution Case :

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The prosecution case, as per the first information report (Ext.1) (hereinafter ‘F.I.R.’) lodged by Chandrabhanu Majhi (P.W.4) before Mr. Kanhu Charan Tripathy (P.W.9), A.S.I., Deogan Outpost on 09.09.2008, in short, is that the deceased was the sister of the informant and she married to the appellant fifteen years prior to the date of occurrence. The appellant was doing nothing, was an unemployed person. He sold his landed properties and came to stay in the parental house of the deceased one year prior to the occurrence and stayed with the family members of the deceased. While staying in the house of the deceased, as the appellant did not have interest to get himself engaged in any job in spite of persuasion of the

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Page 2 of 33

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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deceased, there used to ensue quarrel between the appellant and the deceased.

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It is the further case of the prosecution that on 09.09.2008 in the night at about 9.00 p.m., when P.W.4 returned to his home from the embankment, the informant heard the outcry of the deceased. He along with his elder brother Mousodhi Majhi (P.W.2) and Lalu Majhi rushed to the room where the deceased was staying with the appellant and found the door of the room locked from inside. Even though they knocked at the door, nobody opened the same for which the door was broken open with the help of a crowbar and as the room was dark, using torch light, they found the deceased was lying on the ground with bleeding injury and the appellant was present inside the room and was standing by holding a blood stained tangia (M.O.I). Seeing the ghastly crime, the informant (P.W.4) and others shouted for which the villagers congregated there. After much persuasion, the appellant came out of the room with the tangia (M.O.I) and thereafter, the villagers took him in captivity. After entering the room, it was found that the deceased had injuries on her face, neck, arms and other parts of

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her body and was lying unconscious with profuse bleeding. It is further stated in the F.I.R. that with the help of the husband of

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Page 3 of 33

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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the Sarpanch of the village, the deceased was taken for treatment to Bolangir Hospital in a vehicle but on the way, she expired. Accordingly, the F.I.R. was lodged by P.W.4 before Deogaon Outpost. On receipt of the same, P.W.9 having found a cognizable case revealed from the report, made a station diary entry and sent the same to Tusura P.S. for registration. As per the telephonic instruction given by the O.I.C. of Tusura police station, P.W.9 examined the informant so also the scribe of the F.I.R. and left for village Kuthurla to the house of the deceased and handed over the charge of investigation to S.I. Subash Chandra Bhoi (P.W.11).

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In the absence of O.I.C., Tusura police station, Mr. Subash Chandra Bhoi (P.W.11), S.I. of Tusura police station after receipt of the report, registered the case as Tusura P.S. Case No.163 dated 10.09.2008 under section 302 of the I.P.C. against the appellant and took up the investigation of the case.

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During the course of investigation, P.W.11 proceeded to village Kuthurla and on the way, he visited Deogaon Outpost and issued command certificate in favour of constables to proceed to D.H.H., Bolangir to guard the dead body. Thereafter, he visited the spot, i.e. the dwelling house of the appellant, guarded the spot with his staff, examined the informant (P.W.4)

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Page 4 of 33

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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and other witnesses, recorded their statements, and returned to the police station with the appellant. He sent message to S.P., Bolangir for deputation of scientific team at the spot for collection of physical clue and then came to D.H.H., Bolangir and held inquest over the dead body of the deceased in presence of the witnesses and prepared inquest report (Ext.2) and thereafter, he examined some witnesses and recorded their statements and sent the dead body for post mortem examination and handed over the charge of investigation to Mr. Seshadev Bariha (P.W.10), I.I.C. of Tusara police station as per the direction of the S.P., Bolangir.

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P.W.10 after taking over the charge of investigation, visited the spot, prepared the spot map, seized one tangia (M.O.I) from the spot as per seizure list Ext.3, seized sample earth, blood stained earth, some broken bangles, some cut hair in presence of the witnesses as per seizure list Ext.2, he also seized 100 watt electric bulb fitted with holder and wire from the spot as per seizure list Ext.10 and also seized one iron crowbar on production of one Artatrana Majhi as per seizure list Ext.11. P.W.10 sent the appellant to the Govt. Hospital, Tusura for collection of his nail clippings, seized some box containing nail of the appellant and dry blood as per seizure list Ext.9. On

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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11.09.2008, he seized one lungi (M.O.II) of the appellant in presence of the witnesses and prepared the seizure list vide Ext.12 and the appellant was again sent to D.H.H., Bolangir for collection of his blood and for blood grouping and then he was forwarded to the Court. The wearing apparels of the deceased were seized on production of the constable who escorted the dead body as per seizure list Ext.15 and after receipt of the post mortem examination report (Ext.6) on 15.09.2008, he made prayer before the learned S.D.J.M., Bolangir for recording the statements of some witnesses under section 164 of Cr.P.C. He also sent the tangia (M.O.I) with a query regarding possibility of the injuries sustained by the deceased by such weapon and on 15.11.2008, he received the query report and sent requisition to the R.I., Kudasingha to ascertain the owner of the house where the occurrence took place and accordingly, report was received with sketch map of the spot. The sample blood of the appellant was collected through the Jail Doctor and on 22.12.2008, he made prayer before the learned S.D.J.M., Bolangir for sending the exhibits to the Deputy Director, R.F.S.L., Sambalpur for chemical examination. Thereafter, he received the C.E. report marked as Ext.21 and on completion of investigation on 06.01.2009, P.W.10 submitted the charge sheet against the appellant under section 302 of the I.P.C.

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Page 6 of 33

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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Framing of charges :

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After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned trial Court charged the appellant under section 302 of the I.P.C. on 30.04.2009 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.

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Prosecution Witnesses, Exhibits and Material Objects :

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During course of the trial, in order to prove its case, the prosecution examined as many as eleven witnesses.

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P.W.1 Mitrabhanu Barik stated that P.W.4 and other

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villagers informed him that the appellant had assaulted the deceased by means of an axe. After being informed about the same, he arranged a vehicle and took the deceased to Deogaon Outpost and on being advised by the police, he shifted the deceased to the hospital, where she was declared dead. He also scribed the F.I.R. which was lodged by the informant (P.W.4).

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P.W.2 Mousodhi Majhi is the brother of the deceased

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and also of the informant (P.W.4). He stated that as the appellant was unemployed and was not doing anything for making ends meet, there used to be frequent quarrels between

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Page 7 of 33

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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him and the deceased over the issue and the appellant used to assault the deceased whenever she asked him to find some work. On the date of occurrence, he heard hulla raised by the deceased from inside her house, which was locked from inside. He along with others came near the door and knocked the same. However, as nobody opened the door, the same was broken open by using a crowbar. He further stated that upon going inside the room, the appellant was found standing with a bloodstained axe and the deceased was lying inside the room in a pool of blood sustaining bleeding injuries all over her body mostly on her head. He is also a witness to the preparation of the inquest report vide Ext.2.

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P.W.3 Anirudha Dalai is a witness to the seizure of

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tangia from inside the house of the appellant (M.O.I) by the police as per seizure list Ext.3. He is also a witness to the seizure of broken bangles, hair, blood stained earth, sample earth from the spot as per seizure list Ext.4.

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P.W.4 Chandrabhanu Majhi is the brother of the deceased and the brother-in-law of the appellant and he is also the informant in this case. He explained the occurrence as it unfolded and supported the prosecution case.

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P.W.5 Biswanath Majhi stated that on the date of incident, he heard hue and cry of the deceased for which he

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Page 8 of 33

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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came out and saw the appellant standing on the door step of his house with a blood-stained tangia. He along with other villagers caught hold of the appellant. He stated to have noticed bleeding injuries all over the body of the deceased, who was bleeding profusely at that time.

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P.W.6 Tankadhar Karmi stated that while he was witnessing the satsang, he heard hullah saying ‘Maridela Maridela’ for which he went towards the house of the appellant, which was locked from inside. He further stated that he tried to break open the door by giving kicks but in vain after which he broke open the same by using an iron rod. Thereafter, he saw the deceased lying on the floor with profuse bleeding and the appellant was standing nearer to her holding one blood-stained tangia. He further stated that seeing the light, the appellant chased him and the other villagers.

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P.W.7 Dr. Pravat Kumar Dash was working as the Assistant Surgeon at the District Headquarters Hospital, Bolangir. He, on police requisition, conducted post-mortem examination over the dead body of the deceased and opined that the death of the deceased occurred due to injuries caused to the vital organs like brain and spinal cord. He proved the post-mortem report vide Ext.6.

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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P.W.8 Jagannath Sahu is a witness to the seizure of

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two paper packets along with one command certificate as per seizure list Ext.9.

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P.W.9 Kanhu Charan Tripathy was working as the Assistant Inspector of Police at Deogaon Outpost. He received the information about the incident from P.W.4 and since the information revealed commission of a cognizable offence, he made a station diary entry and sent the same to Tusura Police Station for formal registration of the F.I.R.

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P.W.10 Sesadev Bariha joined as the Inspector-in-

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Charge of Tusura Police Station and took over the charge of investigation from P.W.11 on 10.09.2008. On completion of investigation, he submitted charge sheet against the appellant.

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P.W.11 Subash Chandra Bhoi was working as the

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Sub-Inspector of Police, Tusura Police Station. He is the initial investigating officer of the case.

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The prosecution exhibited twenty two documents. Ext.1 is the F.I.R., Ext.2 is the inquest report, Exts.3, 4, 9, 10, 11, 12, 14, and 18 are the seizure lists, Ext.5 is the statement of P.W.6 recorded under section 164 of Cr.P.C., Ext.6 is the post mortem report, Ext.7 is the opinion of P.W.7, Ext.8 is the endorsement and signature of P.W.7 on M.O.I., Ext.13 is the medical requisition, Ext.15 is the requisition to doctor, Ext.16 is

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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the report of the R.I., Ext.17 is the prayer for collection of blood sample of the appellant, Ext.19 is the prayer for sending exhibits, Ext.20 is the forwarding letter, Ext.21 is the chemical examination report and Ext.22 is the dead body challan.

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The prosecution also proved two material objects.

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M.O.I is the tangia and M.O.II is the lungi of the appellant.

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Defence Plea :

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The defence plea of the appellant is one of complete denial. The defence neither examined any witness nor exhibited any document.

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Findings of the Trial Court :

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The learned trial Court after assessing the oral as well as documentary evidence on record came to hold that the post mortem report (Ext.6) indicates that the deceased has sustained as many as twenty one external injuries and the doctor has also opined the cause of death to be injury to the vital organs like brain and spinal cord. The query report submitted by the doctor regarding possibility of injuries on the deceased by M.O.I was also taken into account by the learned trial Court and it was further held that the prosecution has successfully proved that the deceased met with a homicidal death.

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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The learned trial Court observed that there is no direct evidence in the case, however, the case rests on circumstantial evidence. The learned trial Court has jotted down the circumstances as follows:-

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(i) Homicidal nature of death of the deceased;

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(ii) Frequent quarrel between the deceased

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and the appellant as he was not going to work regularly;

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(iii) At the time of occurrence, only the appellant and the deceased were present in the room and soon after the occurrence, hearing sound of the deceased as MARIGALI MARIGALI, the brother of the deceased and others rushed to the room, found the room was locked from inside, broke open the door and found that the appellant was standing holding a tangia stained with blood in his hand and the deceased was lying in the room having cut injuries;

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(iv) After opening the door, the appellant left the tangia in the room, came out of the room

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Page 12 of 33

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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and he was caught hold by the villagers and detained him and handed him over to the police.

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The learned trial Court considered each of the

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circumstances after assessing the evidence in that respect and came to hold that the prosecution is successful in proving each of the circumstances.

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The learned trial Court rejected the contention raised by the learned defence counsel that the prosecution case is based on the testimony of the interested witnesses and therefore, their evidence is to be disbelieved.

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After analyzing the evidence of P.Ws.2, 4, 5 and 6, it was held by the learned trial Court that their evidence is true and since the occurrence has taken place inside the bed room where only the deceased and the appellant were present and there was no other person and the cause of death was due to the injuries caused to the vital parts of the body. As there was even no remote possibility of causing such type of injuries by any other person who was not in the room since the room was in exclusive occupation of the couple, the learned trial Court held that the burden of proof lies upon the appellant to show under what circumstances the death of the deceased occurred. However, the appellant has failed to discharge the burden.

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Page 13 of 33

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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It was further held that the circumstances which are appearing against the appellant formed the complete chain of evidence not leaving any reasonable ground for the conclusion consistent with the innocence of the appellant and that in all human probability, the act must have been done by the appellant and accordingly, the appellant was found guilty for the offence under section 302 of the I.P.C.

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Contentions of the Parties :

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Mr. Rabindra Nath Nayak, learned counsel who has been engaged as the counsel for the appellant by the Orissa High Court Legal Services Committee as per letter dated 25.04.2012, contended that the witnesses P.Ws.2, 4 and 6 are related to the deceased and therefore, there is every likelihood of false implication of the appellant by those witnesses and since the case is based on circumstantial evidence and the circumstances are not clinching, it is a fit case where the benefit of doubt should be extended in favour of the appellant.

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Mrs. Sushama Rani Sahoo, learned Additional Standing Counsel, on the other hand, supported the impugned judgment and argued that the prosecution has not only established the motive behind the commission of crime on the part of the appellant but also in view of the clinching

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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circumstantial evidence available on record and as deposed to by P.Ws.2, 4, 5 and 6 and the manner in which the deceased and the appellant were found inside their bed room and the appellant was holding a blood-stained tangia (M.O.I) while the deceased was lying with profuse bleeding injuries, it can be said that the chain of circumstances projected by the prosecution is complete in its entirety and leads only to the result that the appellant is the author of the crime. It is argued that no explanation has been offered by the appellant as to how the deceased met with a homicidal death sustaining serious injuries and the manner in which the appellant brutally assaulted the deceased on the vital parts of her body which would be evident from the post mortem report, the learned trial Court has rightly found the appellant guilty under section 302 of the I.P.C. and the findings of the learned trial Court call for no interference and therefore, the JCRLA deserve to be dismissed.

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Adverting to the contentions raised by the learned counsel for the parties, since it is a case based on circumstantial evidence, we must be careful to see that the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the

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Page 15 of 33

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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appellant, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the appellant and it must be such as to show that within all human probability the act must have been done by the appellant.

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Whether the deceased met with a homicidal death? :

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Adverting to the contentions raised by the learned counsel for the respective parties and coming to the circumstance no. (i) as projected by the learned trial Court, let us first examine the evidence available on record as to how far the prosecution has succeeded in establishing that the deceased met with a homicidal death.

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The inquest report prepared by P.W.11 which has been marked as Ext.2 reveals the nature of the injuries on the different parts of the body of the deceased. The doctor (P.W.7), who conducted the post mortem examination over the dead body of the deceased at D.H.H., Bolangir noticed the following injuries:

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Page 16 of 33

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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“ External Injuries :

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Incised wound of size 1 cm x 0.25 cm x 0.25 cm above the lateral end of left eye brow and is oblique in position;

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Incised would of size 3 cm x 2 cm x 0.5 cm on right cheek with blood clots;

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Incised wound of size 5 cm x 3 cm x mouth earty deep with blood clots;

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Chop wound with sharp margin of size 7 cm x 1 cm x bone deep obliquely on right parietal region mostly and temporal region partly;

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Chop wound with sharp margin of size 7 cm x 1 cm x bone deep on left parietal region 2 cm left to injury No.4 extending down to occipital region;

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Chop wound of size 4 cm x 1 cm x bone deep on left parietal region 1 cm left to injury No.5 and both injury No.5 and 16 are vertical.

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Incised wound of size 4 cm x 0.5 cm x 1 cm. on left temporal and occipital region in an antero posterior direction;

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Incised wound of size 3 cm x 0.5 cm x 0.5 cm on left temporal and occipital region in an antero posterior direction;

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Incised wound of size 4 cm x 0.5 cm x scalp deep on left temporal and occipital region in an antero posterior direction;

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Incised wound of size 6 cm x 0.5 cm x scalp deep on the left temporo mastoid region

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Page 17 of 33

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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involving the helix and anti helix of the left ear with blood clot;

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Incised wound of size 5 cm x 3 cm x 1 cm on the right neck in a tangential fashion so that a flap of 1 cm thick trapezivs is cut and is separated as flap horizontal to the outer;

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Incised wound of size 12 cm x 5 cm x bone deep on the back of neck on left side passing obliquely behind mastoid process to cervical;

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Incised wound with clean cut edge of size 6 cm x 4 cm x 2 cm on the mid one third of right upper arm with blood clots;

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Incised wound of size 4 cm x 0.5 cm x 0.5 cm just above injury No.13;

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Incised wound of size 4 cm x 0.5 cm x 1 cm on the right deltoid region in a slightly oblique was just above injury No.14;

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Chop wound of size 6 cm x 3 cm x bone deep obliquely across left shoulder exposing the head of humerus;

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Superficial incised wound of size 3 cm x 0.25 m x 0.25 cm on left dettord region parallel to lox axis of hand;

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Superficial incised wound of size 5 cm x 0.1 cmx 0.1 cm on left dettord region parallel to lox

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axis of hand;

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Superficial incised wound of size 2 cm x 0.1 cm x 0.1 cm on left dettord region parallel to lox axis of hand;

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Page 18 of 33

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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Incised wound of size 2 cm x 0.5 cm x 0.5 cm on the left arm 10 cm above wrist is obliquely present with blood clots;

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Incised wound of size 6 cm x 2 cm x bone deep on super medial surface of knee.

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On dissection :

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P.W.7 found that there are fissured fractures of parietal bone on both sides corresponding to injury Nos.4, 5 and 6. The brain matter underlying the fracture sites are lacerated. There is hemorrhage in the brain and about hundred ml. of dark colored blood. Injury No.12 involves fracture of upper three cervical vertebras. The spinal cord is damaged. Injury No.16 not requiring further dissection exposes the head of Humerus, all two muscles are cut and the shoulder joint cuff is cut into pieces. There under wound gaping. The scapular spine and the clavicle near the joint show cut marks. Injury No.21 involves a tiny linear fracture of the lower medial end of femur and the cut mark is seen. All the internal organs look pale. Heart is empty. There is mild distention of abdomen due to accumulation of gas.”

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After perusing the evidence on record, the post

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mortem examination report (Ext.6) and the statement of the doctor (P.W.7), we are of the humble view that the prosecution has proved the death of the deceased to be homicidal in nature

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Page 19 of 33

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

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and therefore, the finding of the learned trial Court on circumstance no. (i) is quite justified.

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Whether evidence of P.Ws.2, 4, 5 & 6 attract culpability against the appellant for commission of murder of the

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deceased? :

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The learned trial Court has mainly placed reliance on the evidence of P.Ws.2, 4, 5 and 6 for adjudicating this circumstance.

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P.W.2 has stated that when he heard hulla raised by the deceased from inside her room, he went there and knocked the door, but nobody opened the same and he further stated that one Artatrana opened the door by using a crowbar and then entered inside the room which was dark and P.W.6 lit a torch and then they saw the appellant was raising an axe stained with blood and the deceased was lying inside the house in a pool of blood and she was struggling when they saw her. He has further stated that the appellant was persuaded to calm down and throw away the axe. Subsequently, the appellant came out of the house and the outsiders present there caught hold of the appellant and then they noticed the deceased lying with bleeding injuries all over her body and mostly on her head and then they arranged a vehicle and shifted her Deogaon O.P. where the

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doctor declared her dead. In the cross-examination of P.W.2, he has stated that he reached at the doorstep of the appellant first and some other people reached there soon after him and he dealt kicks and fists to the door, but it did not open. The villagers were not present till they opened the door of the appellant. Immediately after entering the room, P.W.6 lit the torch and the appellant raised his axe and chased them. Nothing has been brought out in the cross-examination to disbelieve the evidence of P.W.2.

¶193

P.W.4 is the brother of the deceased and he has also

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stated that hearing the shout of the deceased, they came to the house of the deceased and found the door to be closed. As the door was not opened, one Arta broke open the door by using a crowbar and then P.W.6 torched the light and the appellant was found holding a tangia stained with blood. They persuaded the appellant to keep quiet and the appellant left the tangia there and came out of the house and then he was caught hold of by the villagers and they found the deceased lying on the ground in a pool of blood sustaining injuries all over the body. In the crossexamination, he has stated that he was sleeping in the house and he along with his wife was sleeping in the adjacent room, where the appellant and the deceased were staying. He further

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stated that his house so also house of the appellant situated within one compact area.

¶200

Learned counsel for the appellant submitted that P.W.2 and P.W.4 are closely related to the deceased and therefore, there is a reasonable chance of false implication but we are not inclined to accept such a submission. Close relatives or related witnesses are not necessarily false witnesses or interested witnesses. There is a clear difference between ‘related witness’ and ‘interested witness’. The evidentiary value of a related witness can be well deciphered from the ruling of the Hon’ble Supreme Court in the case of Dalip Singh -Vrs.- State

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of Punjab reported in (1953) 2 Supreme Court Cases 36 .

¶202

The following observation made by His Lordship

¶203

Hon’ble Mr. Justice Vivian Bose is worth its weight in gold:

¶204

“24. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but

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foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.”

¶210

The same principle has, more or less, been reiterated

¶211

by the Hon'ble Apex Court in the case of Laltu Ghosh -Vrs.State of W.B. reported in (2019) 15 Supreme Court Cases

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344 in the following words:

¶213

“12. As regards the contention that the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an “interested” witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between “interested” and “related” witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused.”

¶214

In the instant case, the presence of P.Ws.2 and 4 at

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the scene of occurrence cannot be doubted at all because it is their own house and hearing the shout, they came to the spot and deposed what they saw, without any unnecessary

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embellishments and nothing has been brought out in the crossexamination to disbelieve the evidence of these two vital witnesses.

¶221

The evidence of P.Ws.2 and 4 is also getting corroboration from P.W.5, who has stated that hearing the cry, he came out of the house and saw that the appellant was holding a tangia (M.O.I) on the door step of the house, which was stained with blood. On the request of one Bira Seth, the appellant put down the tangia (M.O.I) on the floor and they caught hold of the appellant. He further stated to have noticed bleeding injuries all over the body of the deceased and further stated about the shifting of the deceased to the hospital.

¶222

P.W.6 has stated that when the door was not

¶223

opened, he brought one iron rod and opened the door and then lighted the torch and saw the deceased was lying on the floor with bleeding injuries and the appellant was standing near the deceased holding one tangia (M.O.I) stained with blood and seeing the light, the appellant chased them. P.W.5 and P.W.6 are independent witnesses and nothing has been brought out in their cross-examination to disbelieve their evidence. Moreover, their evidence is getting corroboration from the evidence of P.W.2 and P.W.4. Therefore, the circumstances which have been jotted

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down by the learned trial Court as circumstance nos. (iii) and (iv) have been successfully established by the prosecution.

¶229

Motive:

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Law is well settled that in a case based on circumstantial evidence, if motive is proved, that would supply another link in the chain of circumstantial evidence but, absence of motive cannot be a ground to reject the prosecution case, though such an absence of motive is a factor that weighs in favour of the accused. Motive is a thing which is primarily known to the accused and it is not possible for the prosecution to explain what actually prompted or excited him to commit the particular crime. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances proved the guilt of the accused, the same is weakened even if the motive is not a very strong one.

¶231

P.W.2 has stated that that the appellant was not working regularly for which the deceased was quarreling with him and the appellant used to assault the deceased whenever she asked the appellant to work. He further stated that the appellant sold away the immovable properties. In the crossexamination, he has stated that they were intervening whenever

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they heard the appellant quarreling with the deceased and assaulting her.

¶237

P.W.4 has stated that the appellant very often quarreling with the deceased as the appellant was not doing any work and the appellant sold away all his properties.

¶238

Therefore, it is the prosecution case that the appellant was an unemployed person and he was doing nothing and even he has sold the landed properties and after he came to stay in the parental house of the deceased, the deceased was insisting him to do something but the appellant was not interested for any job and there used to be quarrel between the appellant and the deceased over this issue and sometimes the appellant was also assaulting the deceased. Therefore, the findings arrived at by the learned trial Court on circumstance no. (ii) is quite justified and the prosecution has proved the motive behind the commission of the crime.

¶239

Whether the appellant has discharged the burden imposed

¶240

upon him under section 106 of the Evidence Act? :

¶241

All the circumstances adduced by the prosecution have been put to the appellant in the accused statement but the appellant has stated that all are false and he has not come out

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¶246

with any explanation at all. When the appellant was found holding a blood-stained tangia inside the bed room where he along with his wife (deceased) was only staying and the deceased was found with bleeding injuries lying on the ground and the room was closed from inside which was broken open, then the burden shifts to the appellant to show as to how the deceased died and who was responsible for the same.

¶247

Section 106 of the Evidence Act deals with burden of

¶248

proving a fact especially within the knowledge. It says that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. It does not relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. This provision applies to the cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. “Especially” means facts that are pre-eminently or exceptionally within one’s knowledge. This section is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish facts

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which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. An accused is always entitled to hold his tongue; but if he is in a position to explain the only alternative theory to his guilt, the absence of explanation must be taken into account. If any explanation that the accused chooses to give is not proved beyond doubt, he cannot claim to be innocent; but even so, if his explanation shows any reasonable doubt on the prosecution story, he would be entitled to an acquittal not because he proves the facts and circumstances referred to, but because the prosecution has failed to establish his guilt beyond reasonable doubt. That is to say, if the Court thinks that the explanation given may reasonably be true, although the Court is not convinced that it is true, the accused is entitled to be acquitted. The onus of proof is not changed in such type of cases but it always remains on the prosecution. Prosecution has to lead evidence to substantiate its accusations. If facts within the special knowledge of the accused are not satisfactorily explained, it is a factor against the accused.

¶254

It would be beneficial for us to borrow credence from the following observations made by the Hon’ble Supreme Court in the case Trimukh Maroti Kirkan -Vrs.State of

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Maharashtra reported in (2006) 10 Supreme Court Cases

¶260

681 :

¶261

“15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.”

¶262

When the appellant has not offered any explanation

¶263

at all and simply stated in his statement recorded under section 313 Cr.P.C. that the witnesses are telling falsehood, it can be said that the appellant has failed to discharge his burden under section 106 of the Evidence Act.

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Relevance of conduct of the appellant in holding blood-

¶269

stained tangia standing near the body of the deceased :

¶270

The testimony of P.Ws.2, 4, 5 and 6 unmistakably points towards the conduct of the appellant in holding a bloodstained tangia near the body of the deceased just after the deceased was assaulted. Such testimony is relevant under section 8 of the Evidence Act, which speaks about relevancy of subsequent conducts. A similar matter was decided by the Hon’ble Supreme Court in the case of Pusauram -Vrs.- State

¶271

of M.P. reported in (1952) 1 Supreme Court Cases 455

¶272

wherein the accused was found holding a blood-stained axe immediately after the murder of the deceased. The Hon’ble Court held as follows:

¶273

“4. There is no direct evidence to prove that it was the appellant who murdered his wife, but the circumstantial evidence unmistakably points to that conclusion and is not compatible with his innocence. Admittedly, he and his wife were the only two persons present in the house about the time of the murder. The appellant was seen standing at the door with a bloodstained axe on his shoulder soon after the murder. This fact is proved by the evidence of Draupati, daughter of

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the deceased, whose testimony there is no reason to reject. She deposed as follows:

¶279

“I went to call my mother in the morning. She said, ‘you go I am coming’. After some time I again went to call her. Thereupon I met Pusau (appellant) standing at the door of his house carrying an axe in his hand. He had placed the axe on his shoulder. It was seen to be stained with blood. He was wearing a dhoti. He was wearing nothing else on his person. I asked him where my mother was. He replied, ‘Nowhere, You go.’ Pusauram went towards the lane.”

¶280

In the case in hand, the circumstances which have been established by the prosecution are clear and conclusive in nature and in our humble view, the circumstances make out a complete chain of evidence and it does not lead any reasonable ground for conclusion consistent with the innocence of the appellant.”

¶281

It is undisputed that the case is based on

¶282

circumstantial evidence, but it is also uncontroverted that the appellant was all alone with the deceased at the time of the offence and he was also found holding a blood-stained tangia immediately after the commission of the offence. When the aforesaid conduct of the appellant is coupled with the fact that he had not offered any explanation as to how the death of the

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deceased had occurred, it is nothing but obvious for this Court to infer that the appellant is guilty for the commission of murder of the deceased.

¶288

Conclusion :

¶289

In view of the foregoing discussions, even though the case is based on circumstantial evidence, we are of the view that the chain of evidence is so complete that it does not leave any reasonable ground for a conclusion consistent with the innocence of the appellant rather it shows that within all human probability, the crime in question has been committed by the appellant. The learned trial Court has rightly found the appellant to be the author of the crime. The manner in which crime has been committed, the number of blows the appellant has inflicted upon the deceased on different parts of her body including on the vital parts like head, neck and face clearly establishes that his intention was nothing but to commit the murder of the deceased. We found no illegality or infirmity in the impugned judgment and accordingly, the JCRLA, being devoid of merits, stands dismissed. The conviction of the appellant under section 302 of the I.P.C. and the sentence passed thereunder by the learned trial Court stands confirmed.

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Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 15-Jul-2024 15:21:00

¶294

Trial Court records with a copy of this judgment be

¶295

sent down to the concerned Court forthwith for information and necessary action.

¶296

Before parting with the judgment, we put on record our appreciation to Mr. Rabindra Nath Nayak, learned counsel for the appellant for rendering his valuable assistance in arriving at the above decision. We also appreciate Mrs. Sushama Rani Sahoo, learned Additional Standing Counsel for ably and meticulously presenting the case on behalf of the State.

¶297

S.K. Sahoo, J.

¶298

……………………………… Chittaranjan Dash, J.

¶299

Orissa High Court, Cuttack The 11^th July 2024/Sipun

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Page 33 of 33

Byasa Chhatabarah v. State

Case brief

What is this about?

What the court decided

Byasa Chhatabarah v. State

Case brief

What is this about?

What the court decided

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