Govinda Nayak Vs State

Signature Not Verified

Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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IN THE HIGH COURT OF ORISSA, CUTTACK

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JCRLA NO.54 OF 2008

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From judgment and order dated 22.05.2008 passed by the Adhoc Additional Sessions Judge, Sundargarh in Sessions Trial No.97/18 of 2007.

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Govinda Nayak ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Jiban Ranjan Dash
Advocate
For Respondent: - Mr. Priyabrata Tripathy
Addl. Standing Counsel
-----------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K.SAHOO
AND

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THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH

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Date of Hearing: 06.12.2023 Date of Judgment: 02.01.2024

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S.K. SAHOO, J . : The appellant Govinda Nayak faced trial in the Court

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of learned Adhoc Additional Sessions Judge, Sundargarh in Sessions Trial No.97/18 of 2007 for offence punishable under section 302 read with section 34 of the Indian Penal Code

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Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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(hereinafter ‘I.P.C.’) on the accusation that on 06.03.2007 at about 7.30 p.m. at village Baladmal (Kissan Pada), he in furtherance of common intention with Abhi Nayak (Juvenile) committed murder of Dharani @ Bhainra Kumura (hereafter ‘the deceased’) by assaulting him on his head and neck with an axe.

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The learned trial Court vide impugned judgment and order dated 22.05.2008 found the appellant guilty under section 302 of I.P.C. and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- (rupees ten thousand), in default of payment of fine, to undergo imprisonment for one year.

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Prosecution Case :

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The prosecution case, as per the first information report (hereinafter ‘F.I.R.’) lodged by Duryodhan Kumra (P.W.6) before the I.I.C. of Sadar police station, Sundargarh on 06.03.2007, in short, is that the deceased was his younger son and on that day in the evening hours, after taking his food, the deceased had been to the house of co-villager Kalia Kissan (P.W.5) for collecting his wages. While the informant was in his house, P.W.5 and his son Bijay Kissan came to the house of the informant at about 07.30 p.m. and informed that the appellant and his brother co-accused Abhi Nayak quarreled with the

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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deceased and the appellant committed murder of the deceased with an axe and then both the accused fled away. Getting such information, P.W.6 and his son Abhi Kumra came to the spot and found the deceased lying dead with bleeding injuries in front of the house of P.W.5. The co-villagers also assembled at the spot where the dead body was lying.

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P.W.6 lodged the written report before P.W.11, the I.I.C. of Sadar Police Station, Sundargarh which was scribed by Suresh Munda (P.W.2) and since the said report revealed a cognizable case, P.W.11 registered Sundargarh Sadar P.S. Case No.12 dated 06.03.2007 under section 302/34 of the I.P.C. against the appellant and his brother Abhi Naik and directed P.W.10 Harihar Naik, S.I. of police of Sadar Police Station to take up investigation of the case. P.W.10 examined the informant and the scribe of the F.I.R. (P.W.2) and recorded their statements and also took steps for guarding the dead body. At about 11:00 p.m. on 06.03.2007, P.W.10 along with P.W.11 arrived at the spot and P.W.10 prepared the spot map vide Ext.14. He also examined other witnesses and recorded their statements. On 07.03.2007, P.W.10 sent requisition to the scientific team to examine the spot and he himself seized blood stained earth and sample earth from the spot in presence of the witnesses and

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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prepared seizure list vide Ext.3. He also conducted inquest over the dead body over the deceased in presence of the witnesses and prepared inquest report vide Ext.2. He dispatched the dead body for its post mortem examination. On 07.03.2007 at 3.00 p.m., P.W.10 apprehended the appellant as well as his brother co-accused Abhi Naik and while in police custody, the appellant made a statement regarding concealment of the weapon of offence i.e. axe which he stated to have kept inside the thatched roof of his house and further stated that he could give recovery

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of the same. The statement of the appellant was recorded under section 27 of the Evidence Act vide Ext.4/1 and pursuant to such statement, the appellant led P.W.10 and other witnesses to the place of concealment of the axe i.e. his house and gave recovery of the same which was found to be stained with blood. P.W.10 accordingly prepared the seizure list Ext.5/1 and he also seized the wearing apparels of the co-accused Abhi Naik as per seizure list Ext.6/2 so also the wearing apparels of the appellant as per seizure list Ext.7/1. He also seized wearing apparels of the deceased after post mortem examination on being produced by the constable in presence of the witnesses as per seizure list Ext.9. On 08.03.2007, P.W.10 sent both the appellant and the co-accused for collection of their nail clippings and blood sample

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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and received the report and accordingly seized the same when it was produced before him in separate sealed packets as per seizure list Ext.10. On 08.03.2007, P.W.10 forwarded both the appellant and the co-accused to Court in custody. He received the post mortem report and sent requisition to the doctor who conducted the post mortem examination to examine the axe and to answer his query and he also received the query report from the doctor. The investigation of the case was taken over by P.W.11 as per the order of the S.P., Sundargarh. P.W.11 also examined some of the witnesses, recorded their statements and on 03.07.2007, he made a prayer before the learned S.D.J.M., Sundargarh to send the seized exhibits to R.F.S.L., Sambalpur for chemical examination and opinion, which was accepted and the seized exhibits were submitted before the R.F.S.L., Sambalpur and on completion of investigation, P.W.11 submitted charge sheet under section 302/34 of the I.P.C. against the appellant and the co-accused Abhi Naik.

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Framing of charge :

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After submission of charge sheet, the case was

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committed to the Court of Session following due procedure where the learned trial Court framed charge against the appellant as aforesaid on 04.04.2008 and since the appellant

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to establish his guilt .

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Prosecution Witnesses, Exhibits & Material Objects :

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During course of the trial, in order to prove its case,

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the prosecution examined as many as eleven witnesses.

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P.W.1 Bijay Kisan is an eye witness to the occurrence

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and he stated to have seen the appellant giving an axe blow on the back side head of the deceased and another blow on the neck of the deceased for which the deceased sustained bleeding

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injuries. He further stated that upon seeing the incident, he raised hulla for which some people gathered at the spot and the

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appellant and the co-accused fled away.

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P.W.2 Suresh Munda was the Sarpanch of Baragad

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Gram Panchayat who stated that on the relevant evening, he got information about murder of the deceased and upon getting such information, he rushed to the spot and found the deceased lying dead sustaining injuries on his head and neck with profused

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bleeding. He is also the scribe of the F.I.R. (Ext.1). He is also a witness to the preparation of inquest report vide Ext.2. The police seized blood stained earth and sample earth from the spot in his presence as per seizure list Ext.3.

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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P.W.3 Rabishankar Padhi was working as a constable

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at Sadar Police Station, Sundargarh. He is a witness to the seizure of command certificate along with receipt of the seized exhibits from R.F.S.L., Sambalpur as per seizure list Ext.8.

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P.W.4 Narottam Tanty was working as a constable at Sadar Police Station, Sundargarh. He is a witness to the seizure of the wearing apparels of the deceased as per seizure list Ext.9. He is also a witness to the seizure of the blood sample and nail clippings of the appellant as per seizure list Ext.10.

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P.W.5 Dhaneswar Kisan @ Kalia stated that on the

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fateful day, the deceased along with the appellant and another person were working in his under construction house. He further stated that at about 6.30 p.m., they had come to his old house for collecting their wages but as he did not pay them their remuneration, they left. Subsequently, he was informed by P.W.1 that the appellant had committed murder of the deceased and when he rushed to the spot, he found the deceased lying dead with profused bleeding. He is a witness to the preparation of the inquest report vide Ext.2.

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P.W.6 Duryodhan Kumra is the father of the deceased and also the informant of the case who stated to have been informed about the murder of the deceased by P.W.1 and

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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P.W.4. Upon getting such information, he rushed to the spot and found the deceased lying dead on the ground sustaining bleeding injuries on the back side of his head and neck. He is a witness to the preparation of inquest report vide Ext.2.

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P.W.7 Saraswati Nayak is the aunt (younger sister of the father) of the appellant who stated that on the date of occurrence at about 5.30 p.m., the deceased asked her for bhang and when she refused to give, the deceased caught hold of her and embraced her. She further stated that at that time, the appellant came to her house and told her son that the deceased outraged her modesty for which her son dealt two slaps on her cheek. She was declared hostile by the prosecution. P.W.8 Dr. Lipika Dei was working as the Asst. Suregon at the District Headquarters Hospital, Sundargarh who on police requisition held autopsy over the dead body of the deceased. She proved her report vide Ext.11. She also examined the weapon of offence on the query made by the I.O. and submitted query report vide Ext.12.

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P.W.9 Laxman Kumura is another eye witness to the

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occurrence and he stated that on the date of occurrence, he went to perform construction work in the house of P.W.5 along with the appellant as well as the deceased. He further stated that

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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while they were returning from the house of P.W.5, the deceased seeing P.W.7 asked her to provide khaini (tobacco). He further stated that pursuant to such request, a quarrel ensued between the deceased and the appellant and he left the spot. When he returned, the appellant was not present at the spot and when he (P.W.9) was talking with the deceased at about 7.30 p.m., he noticed the appellant arriving at the spot holding an axe and he further stated that the appellant dealt axe blows on the back side of the head and neck of the deceased.

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P.W.10 Harihar Nayak was working as the S.I. of police at Sadar Police Station, Sundargarh who is the initial investigating officer of the case.

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P.W.11 Paramananda Sahoo was posted as the I.I.C., Sadar Police Station, Sundargarh who upon receiving the written report from the informant (P.W.6) registered the case and directed P.W.10 to take up investigation of the case. Subsequently, he took over charge of investigation from P.W.10 and upon completion of investigation, submitted the charge sheet.

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The prosecution also exhibited eighteen documents. Ext.1 is the F.I.R., Ext.2 is the inquest report, Exts.3, 4/1, 5/1, 6/2, 7/1, 8, 9 and 10 are the seizure lists, Ext.11 is the post

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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mortem report, Ext.12 is the query report, Ext.13 is the command certificate, Ext.14 is the spot map, Ext.15 is the dead body challan, Ext.16 is the prayer made by the I.O. to the learned S.D.J.M., Sundargarh to send the exhibits to R.F.S.L., Sambalpur, Ext.17 is the copy of forwarding memo of exhibits and Ext.18 is the chemical examination report.

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The prosecution also proved eight material objects. M.O.I is the axe, M.O.II is the green colour full pant of the appellant, M.O.III is the orange colour sweater of the appellant, M.O.IV is the green colour banian of the appellant, M.O.V is the

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black colour full pant of the deceased, M.O.VI is the ash colour underwear of the deceased, M.O.VII ash colour shirt of the deceased and M.O.VIII is the blue colour half banian of the deceased.

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Defence Plea :

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The defence plea of the appellant is one of complete denial.

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Findings of the Trial Court :

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The learned trial Court, after assessing the oral as

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well as the documentary evidence on record, came to hold that from the facts and circumstances and from the ocular and medical evidence, the nature of death of the deceased has been

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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clearly established to be homicidal. It was further held that from the analysis of the testimonies of P.Ws.5, 7 and 9, it was clearly established that the appellant was all along present with the deceased till he breathed his last. After analyzing the evidence of eye witnesses P.Ws.1 and 9, it was held that they were present at the time of assault made by the appellant on the deceased which was very clear, cogent, consistent and inspired confidence regarding their credibility. The learned trial Court also accepted the evidence adduced by the prosecution witnesses regarding leading to discovery of axe (M.O.I) at the instance of the appellant and further held that the presence of human blood on the axe as would be evident from the C.E. report can be used as a piece of evidence against the appellant. It was further held that such evidence against the appellant in presence of direct evidence as well as circumstantial evidence linked the chain about his presence and his participation. The learned trial Court summed up that the appellant alone was the author of the crime and he had the nexus with the murder of the deceased and it was his cool and calculated work with premeditation, preparation and intention to murder the deceased by assaulting him brutally and mercilessly by means of a deadly weapon like M.O.I. on the

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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vital organ like head and neck and accordingly, the appellant was held guilty under section 302 of the I.P.C.

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Contentions of the Parties :

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Mr. J.R. Dash, learned counsel appearing for the appellant contended that though it is the prosecution case that P.W.1 and P.W.9 are the two eye witnesses to the occurrence, but P.W.1 has not stated about the presence of P.W.9 at the scene of occurrence even though the latter was stated to be standing very close to the deceased. P.W.9 on the other hand stated that he had not noticed any other person in and around the spot. Though P.W.1 has stated about the existence of houses of number of persons around the spot and hearing his hullah, Raju Munda and Pradip Nayak arrived at the spot, but none of such persons have been examined. It is argued that there are material contradictions in the evidence of both the eye witnesses and therefore, the learned trial Court should not have placed reliance on the same. He argued that after the seizure of axe (M.O.I) at the instance of the appellant, it was not kept in sealed condition and there is inordinate delay in sending the weapon for C.E. examination and there is also absence of material regarding

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safe custody of the weapon before its dispatch for C.E. examination and therefore, no importance is to be attached to

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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the finding of human blood stains on the axe in the C.E. Report (Ext.18). He argued that though P.W.9 stated that the appellant assaulted the deceased by the sharp side of the axe to his head and neck, but the doctor (P.W.8) noticed lacerated wounds on the person of the deceased which indicates that the ocular evidence runs contrary to the medical evidence. He also highlighted that since charge was framed under section 302/34 of the I.P.C., the conviction of the appellant under section 302 of the I.P.C. is illegal and further contended that the prosecution has not proved the motive behind commission of murder on the part of the appellant and therefore, it is a fit case where benefit of doubt should be extended to the appellant. Mr. Priyabrata Tripathy, learned Additional Standing Counsel, on the other hand, supported the impugned judgment and argued that it is not the number of witnesses but quality of their evidence which is important as there is no requirement under the law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. According to Mr. Tripathy, the contradictions appearing in the evidence of the two eye witnesses are insignificant and when their evidence have not been shaken, non-examination of other witnesses of the locality cannot be a ground to disbelieve the prosecution

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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case. He argued that the doctor (P.W.8) conducting post-mortem examination gave her opinion that the injuries found on the deceased could be possible by M.O.I and the evidence has remained unshaken and therefore, it cannot be said that ocular evidence runs contrary to the medical evidence. He argued that even though specific evidence has not been adduced that the weapon seized at the instance of the appellant was kept in sealed condition, but bereft of C.E. Report, the prosecution case

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is clearly established and therefore, the JCRLA should be

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dismissed.

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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, 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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P.W.8 conducted post mortem examination over the

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dead body of the deceased on 07.03.2007 and she noticed the following external injures:

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“(i) Lacerated wound of size 2 1/2” x 1” x 2” over left occipito temporal region of the scalp 1 “ back to left ear.

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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(ii) Lacerated wound of size 3” x ½” x 3” present just below chin extended laterally on the right side upto middle of the neck which is present transversely.”

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On dissection, she found fracture of part of occipital bone and temporal bone of the skull and below that region, there was laceration of brain matter, bleeding inside the cranium cavity present and she opined that the cause of death was due to shock and hemorrhage as a result injury to the vital organ like brain, and injury to the large vessel and all the injuries were opined to be ante mortem in nature and sufficient in ordinary course of nature to cause death of a person. She further opined that time since death was 16-24 hours at the time of post mortem examination and she proved the post mortem report marked as Ext.11. She also examined the weapon of offence i.e. axe (M.O.I) on 23.03.2007 which was produced before her by

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the police and after examining the same, she opined that the injuries found in the P.M. report could be possible by M.O.I. The inquest report (Ext.2) coupled with post mortem report (Ext.11) and the evidence of the doctor (P.W.8) clearly proves that the deceased met with a homicidal death. We are of the view that

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the learned trial Court has rightly held that from the facts and circumstances and from the ocular and medical evidence, the

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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nature of death of the deceased has been clearly established to be homicidal.

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Seizure of axe (M.O.I) at the instance of the appellant and

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finding of human blood stain on it :

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Mr. Dash, learned counsel for the appellant contended that according to P.W.10, the I.O., the axe (M.O.I) was seized on 07.03.2007 at the instance of the appellant on the basis of his statement recorded under section 27 of the Evidence Act from his house under its thatched roof, however there is no evidence in what condition M.O.I was kept till it was produced before the doctor (P.W.8) on 23.03.2007 for examination and opinion. He argued that the doctor (P.W.8) has specifically stated that when she received the axe, it was wrapped in a paper but it was not sealed. According to Mr. Dash, since there is absence of any evidence of the sealing of the seized axe, the chance of manipulation of the same cannot be ruled out and therefore, no importance is to be attached to the seizure of M.O.I and finding of chemical examination report (Ext.18) which indicates that the axe (M.O.I) was stained with human blood.

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P.W.10 though stated about the recovery of the axe (M.O.I) at the instance of the appellant from his house which

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was seized as per seizure list Ext.5/1, but he has not stated

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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about the sealing of the seized axe nor there is any evidence where the seized axe was kept till 23.03.2007 after its seizure on 07.03.2007 when it was produced before P.W.8, the doctor for giving her opinion regarding possibility of the injuries sustained by the deceased with such weapon. P.W.8 has specifically stated that M.O.I was wrapped in a paper but not sealed. P.W.10 has stated in his cross-examination that after the seizure of axe, he had wrapped it by paper but he had not obtained the signatures of the witnesses as well as the appellant on the seized axe so

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also over the wrapped paper. P.W.11, the I.O. has stated that on 03.07.2007 he made a prayer before the learned S.D.J.M., Sundargarh for sending the seized exhibits to R.F.S.L., Sambalpur. The forwarding report of the seized exhibits including the axe (M.O.I) which was marked as Ext.C is dated 03.07.2007. The prosecution has not offered any explanation as to why there was so much of delay in sending M.O.I. for chemical examination and where, in whose custody and in what condition M.O.I was kept till it was sent for chemical examination. Though P.W.10 has stated that the axe was kept in the police malkhana vide malkhana mal item no.10/07 but no malkhana register of the police station has been proved by the prosecution to show that the axe (M.O.I) was kept there in safe custody. P.W.10 has

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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stated that he had not seized the malkhana register in connection with the case and further stated that axe like M.O.I is commonly available in each houses of the village. In view of the absence of evidence regarding keeping the seized axe (M.O.I) in sealed condition coupled with inordinate delay in dispatching the axe for chemical examination, in our humble view, the finding of chemical analyst regarding availability of human blood stained on M.O.I cannot be used as an incriminating factor against the appellant inasmuch as chance of tampering with the same cannot be ruled out. In the case of Nand Kishore -Vrs.- State

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of Haryana reported in 1998 Supreme Court Cases (Cri)

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568 , the Hon’ble Supreme Court has held as follows:

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“3. There is no material on the record to show that the seized articles were kept in the malkhana by P.W.1 or P.W.2 for safe custody. Neither the investigating officer nor P.W.2 has stated that they had kept the weapon in the malkhana after properly securing and sealing the same. Neither the Muharir malkhana was examined nor even his affidavit filed by the prosecution to testify to the safe custody of the recovered weapon. The report of the Armourer P.W.3 Head Constable Charan Dass, who examined the pistol and the cartridges on 2811-1991, nearly three weeks after the seizure of the pistol and the cartridges, admitted in his

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Signature Not Verified

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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cross-examination that when the case-property was received by him, the same was not in any sealed parcel and that it was "in loose condition". Thus, from the evidence on the record, it cannot be said with any amount of certainty that the pistol allegedly recovered from the appellant by the police officials P.W.1 and P.W.2 and the pistol examined by the Armourer P.W.3 was the same. Since, the pistol had been received by the Armourer in a loose condition, the possibility that the weapon might have been tampered while in the custody of the police cannot be ruled out. That being the position, it would not be safe to uphold the conviction of the appellant for the offences under section 25 of the Arms Act read with section 5 of T.A.D.A.”

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P.W.2 and P.W.5 are the two witnesses to the seizure

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of axe (M.O.I). In the chief examination, P.W.2 has stated that he knew nothing about the document i.e. seizure list Ext.5/1

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though he admitted his signature on it which he stated to have been put on 07.03.2007. He has been declared hostile by the prosecution and in the cross-examination made by the Prosecutor, he stated that pursuant to the statement made by the appellant, he led the police and others to the place of concealment of tangia and gave recovery of the same from the thatched roof of back side of his house to police in his presence

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which the police seized as per seizure list Ext.5/1. However in the cross examination by the defence, P.W.2 has stated that he saw the axe at the police station for the first time and put his signature on the seizure list in respect of axe at the police station. Thus, it is difficult to accept the evidence of P.W.2 as a witness to the seizure of M.O.I at the instance of the appellant.

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P.W.5 only admitted his signature on the seizure list Ext.5/1, however, he was also declared hostile by the prosecution and cross-examined and he denied to have stated before police regarding leading to discovery of M.O.I. at the instance of the appellant. Thus, the evidence of P.W.5 noway helps the prosecution to establish that M.O.I was seized at the instance of the appellant from his house.

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In view of the nature of evidence adduced, we accept

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the contentions raised by Mr. Dash, learned counsel for the appellant that recovery of axe at the instance of the appellant so also the finding of human blood stains on the seized axe cannot be used against the appellant.

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Analysis of evidence of eye witnesses :

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P.W.1 and P.W.9 are the two eye witnesses to the

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occurrence.

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P.W.1 has stated that on the relevant day at about 7.30 p.m. in front of his house, he noticed the appellant giving

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axe blows on the back side of the head and then on the neck of the deceased as a result of which the deceased sustained bleeding injuries. Upon seeing such incident, he raised hulla and on hearing such hulla, one Raju Munda and Pradeep Naik appeared at the spot and the appellant along with the coaccused Abhi Naik fled away from the spot. He further stated that he rushed to the house of the deceased to inform the occurrence to the father and elder brother of the deceased. Though the learned defence counsel has confronted to P.W.1 that he had not stated before police that the appellant dealt another axe blow on the neck of the deceased which was denied by P.W.1 but the same has not been proved through the I.O., who recorded the statement of P.W.1 during investigation. In view of section 145 of the Evidence Act, to contradict the evidence given by a prosecution witness at the trial with a statement made by him before police during the investigation would be to draw the attention of the witness to that part of the contradictory statement which he made before the police and to question him whether he did in fact made the statement. If the witness admits, the same can be relied upon by the accused as

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establishing the contradiction. However, if the witness denies to have made such statement before the police, then when the Investigating Officer comes into the witness box, he should be questioned as to whether the particular statement had been made to him during the course of investigation by the particular witness or not and obviously after refreshing his memory from the case diary, the Investigating Officer may make his answer in the affirmative or may negative the same. The answer of the Investigating Officer in affirmative would prove that such a statement had in fact be made by the witness and would go into the evidence. Similarly, if it is confronted to a witness that he had not made a particular statement during investigation before the Investigating Officer and the witness does not admit the same, when the Investigating Officer is examined, he can be put the question by the learned defence counsel with reference to such contradiction and the Investigating Officer after verifying the statement recorded by him and refreshing his mind may answer that a particular witness had not made any such statement before him. If this procedure is not followed while cross examining the witness so also the Investigating Officer, then the evidence before the Court cannot be discarded on the ground of contradiction. The purpose of drawing the attention to

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the statement made by the witness before the police or any other previous statement is to give a reasonable opportunity to the said witness as to why such contradiction appears. When the previous statement made by a witness before police is confronted to him for the purpose of proving the same by one party, not only the other side but also the trial Court should be vigilant to verify such statement instantly. In the present case, since the confrontation made by the learned defence counsel to P.W.1 relating to his previous statement before police has not

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been proved in accordance with law, no importance is to be

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attached to such question put by the learned defence counsel.

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P.W.1 has further stated in the cross-examination that he noticed the assault on the deceased by the appellant from a distance of 10-15 feet. It is correct that the learned defence counsel has brought on record that houses of other persons were situated in the vicinity of the spot and when P.W.1 raised hulla, Raju Munda and Pradip Naik arrived at the spot but none of them have been examined, but as rightly contended by Mr. Tripathy, learned Addl. Standing Counsel that no fixed

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number of witnesses is needed to prove a fact and even the testimony of a single witness is sufficient to convict an accused if it is found to be cogent, credible and trustworthy. The evidence

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is to be weighed and not counted. It is the quality that counts. Non-examination of some of the witnesses available at the spot cannot per se lead to the negation of the prosecution case, if the case is otherwise well proved through other witnesses. Law is well settled that it is not the quantity of witnesses rather the quality and veracity of their testimonies that matters in a criminal trial. This position of law has got legislative recognition through section 134 of the Evidence Act. While upholding the above stand of law, the Hon’ble Supreme Court in the case of Raj Narain Singh -Vrs.- State of Uttar Pradesh and others reported in (2009) 10 Supreme Court Cases 362 has held as follows:

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“31. The learned counsel appearing for the accused has strenuously argued and drawn our attention to the fact that the prosecution has not examined the other witnesses available on the spot. However, we are unable to accept the said contention as it is not necessary that all those persons who were present at the spot must be examined by the prosecution in order to prove the guilt of the accused. Section 134 of the Evidence Act provides that no particular number of witnesses is required for proof of any fact. It is trite law that it is not the number of witnesses but it is the quality of evidence which is required to be taken note of by the courts for ascertaining

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the truth of the allegations made against the accused.”

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In the case of Joginder Singh -Vrs.- State of Haryana reported in (2014) 11 Supreme Court Cases 335 , a Division Bench of the Hon’ble Supreme Court, speaking through His Lordship Hon’ble Mr. Justice Dipak Misra, has held that non-examination of the material witnesses is not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the Court leveled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses are available for

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being examined in the Court and were yet withheld by the prosecution.

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In the case of Vadivelu Thevar -Vrs.- State of Madras reported in A.I.R. 1957 S.C. 614 , where the Hon’ble

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Supreme Court has classified the witnesses into three categories i.e. i) wholly reliable, ii) wholly unreliable and iii) neither wholly reliable nor wholly unreliable, it has been held that so far as the first category of proof, the Court should have no difficulty in coming to the conclusion to convict on the testimony of a single

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witness, if it is found to be above reproach and suspicion of interestedness, incompetence or subornation and in the second category, the Court can equally discard such evidence and so far as third category of cases, the Court has to be circumspect and has to look for corroboration in material particular by reliable testimony, direct and circumstantial. We find no such discrepancy in the evidence of P.W.1 to disbelieve him.

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P.W.9 is another eye witness to the occurrence who

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stated that he along with the deceased as well as the appellant went to work in the under construction house of P.W.5. He further stated that at about 5.00 p.m. on the date of occurrence, they proceeded to the old house of P.W.5 to collect their wages but when P.W.5 refused to pay them their remuneration, he along with both the deceased as well as the appellant went towards Talapada (down the lane) of their village. He has also stated that while returning back to the house of P.W.5, on the way, the deceased saw P.W.7 and asked her to provide him some khaini and as P.W.7 refused to give the same, a quarrel ensued between the appellant and the deceased. Seeing such quarrel, P.W.9 went to the house of P.W.5 for receiving his payment and when he returned back to the spot, he did not notice the appellant there. He further stated that while he along

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with the deceased were talking near the electric pole, at about 7.30 p.m., the appellant came towards them holding an axe and dealt blows to the back sides of the head and the neck of the deceased as a result of which he fell down on the ground with profuse bleeding. Being terrified by such incident, P.W.9 fled away from the spot. In the cross-examination, P.W.9 has specifically stated that he had not noticed any other person in and around the spot, but merely because P.W.9 has not stated about the presence of P.W.1, the same cannot be a ground to disbelieve the presence of P.W.1. The occurrence has taken place in the evening hours at about 7.30 p.m. and the witness to the occurrence might have focused on the assault part and not exactly noticed who were the other persons present near the vicinity and watching the occurrence, but the same cannot be a ground to disbelieve his testimony. It is correct that P.W.9 has stated that the appellant assaulted the deceased by sharp side of the axe to his head and neck and the doctor (P.W.8) has noticed one lacerated wound on the scalp so also another lacerated wound on the neck but when she verified the weapon of offence (M.O.I), she specifically opined that injuries found in her P.M. report could be possible by M.O.I. In the cross-examination, P.W.8 has clarified that incised wound could be possible by the

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sharp side of an axe and lacerated wound could not be possible by the sharp side of the axe, but it is possible by the blunt side of an axe. She specifically stated that the injuries which she found over the dead body of the deceased, could not be possible by one fall against a rocky surface or blunt object. She denied the suggestion given by the learned defence counsel that she did not examine the axe (M.O.I). Therefore, the contention of the learned counsel for the appellant that the ocular testimony of P.W.9 is contradicted by the medical evidence is not acceptable.

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Whether the learned trial Court was justified in convicting the appellant under section 302 of the I.P.C. though he was charged under section 302/34 of the I.P.C. :

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In the case of Kishore Chand -Vrs.- State of Himachal Pradesh reported in (1991) 1 Supreme Court Cases 286 , the Hon’ble Supreme Court has held that if from the evidence the Court comes to a conclusion that any one of the accused has committed the crime individually, even though other accused persons were acquitted, he can be held guilty under section 302 of the I.P.C. simplicitor and such conviction cannot be assailed only because no independent charge was framed against the accused under section 302 of the I.P.C. While elucidating the above position of law, it was held as follows:

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“10. No doubt the appellant and two others have been charged for an offence under section 302 and 201 read with section 34, namely, common intention to commit the offences and A-2 and A- 3 were acquitted of the charge under section 302/34 I.P.C. and that there is no independent charge under section 302 I.P.C. If, from the evidence, it is established that any one of the accused has committed the crime individually, though the other accused were acquitted, even without any independent charge under section 302, the individual accused would be convicted under section 302 I.P.C. simplicitor. The omission to frame an independent charge under section 302 I.P.C. does not vitiate the conviction and sentence under section 302 I.P.C.” In view of the settled position of law, since appellant has committed the crime individually as deposed to by the two eye witnesses, there is no infirmity in the impugned judgment in convicting the appellant under section 302 of I.P.C. even though he was charged under section 302/34 of I.P.C. and the appellant cannot be said to be prejudiced in any manner.

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Absence of motive:

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It is no more res integra that in a case of direct evidence, motive plays a minimal role and when guilt of the accused person is well proved by means of direct evidence, the

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Courts should not be reluctant to record conviction only because sufficient motive cannot be proved by the prosecution. In the

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case of Darbara Singh -Vrs.- State of Punjab reported in (2012) 10 Supreme Court Cases 476 , it is held as follows:

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“15.....In a case where there is direct evidence of witnesses which can be relied upon, the absence of motive cannot be a ground to reject the case. Under no circumstance, can motive take the place of direct evidence available as proof......

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Motive in criminal cases based solely on the positive, clear, cogent and reliable ocular testimony of witnesses is not at all relevant. In such a fact situation, the mere absence of a strong motive to commit the crime, cannot be of any assistance to the accused....”

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The evidence has come on record through P.W.9 that while the deceased saw the aunt of the appellant, namely, Jama,

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he asked her to provide khaini and at this, a quarrel ensued between the appellant and the deceased. In the crossexamination, P.W.9 has stated that he could not say the reason for which the quarrel ensued between the appellant and the deceased before the occurrence, but he heard that the appellant

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and the deceased were engaged themselves in a quarrel and thereafter, the appellant took his aunt Jama to his house.

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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In the case of Yogesh Singh -Vrs.- Mahabeer Singh & Ors reported in (2017) 11 Supreme Court Cases

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195 , while reiterating the above stance of law, the Hon’ble

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Supreme Court held as follows:

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“46.……It is a settled legal proposition that even if the absence of motive, as alleged, is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, motive loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. [ Hari Shankar Vs. State of U.P. : (1996) 9 SCC 40; Bikau Pandey & Ors. Vs. State of Bihar : (2003) 12 SCC 616; State of U.P. Vs. Kishanpal & Ors. : (2008) 16 SCC 73; Abu Thakir & Ors. Vs. State of Tamil Nadu : (2010) 5 SCC 91 and Bipin Kumar Mondal Vs. State of West Bengal : (2010) 12 SCC 91 ] .”

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Conclusion :

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In view of the foregoing discussions, we find that the evidence of the two eye witnesses i.e. P.W.1 and P.W.9

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corroborated each other and we find no infirmity in the same. Their evidence relating to the assault made by the appellant on the deceased is also getting support from the medical evidence adduced by P.W.8. The spot is not disputed in view of sufficient material available on record regarding the finding of the dead body with injuries on the head and neck with profused bleeding in front of house of P.W.1, the seizure of blood stained earth from the spot and moreover the inquest was held over the dead

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body at the spot on 07.03.2007 and inquest report was prepared. The appellant has miserably failed to dislodge the incriminating evidence appearing against him in the prosecution case and hence, we are of the opinion that his conviction and sentence through the impugned judgment and order does not require any interference by us and resultantly, we find no merit in the appeal which for the said reason is dismissed with the affirmation of appellant’s conviction and sentence. The appellant has been directed to be released on bail by the order of this Court dated 20.11.2018 in Misc. Case No.21 of 2018. The appellant shall surrender within a period of four weeks from today to undergo the sentence, failing which, he shall be taken into custody.

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Digitally Signed Signed by: SIPUN BEHERA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 02-Jan-2024 17:25:59

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Accordingly, the JCRLA is dismissed. Trial Court records with a copy of this judgment be sent down to the concerned Court forthwith for information.

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Before parting with the judgment, we put on record our appreciation to Mr. Jiban Ranjan Dash, learned counsel for the appellant for rendering his assistance in arriving at the above decision. We also appreciate Mr. Priyabrata Tripathy, learned Additional Standing Counsel for ably and meticulously presenting

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the case on behalf of the State.

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……………………………
S.K. Sahoo, J.
C.R. Dash,J. I agree.
………………………………
Chittaranjan Dash, J.
Orissa High Court, Cuttack
The 2 nd January 2024/Pravakar/Sipun

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Page 33 of 33

Govinda Nayak v. State

Case brief

What is this about?

What did the court decide?

Govinda Nayak v. State

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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