Padmalochana Dharua Vs State

IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No. 54 of 2005

(Appeals under section 374 (2) Cr.P.C. arising out of the judgment and order dated 22.01.2005 passed by Additional Sessions Judge (F.T.C.), Bolangir in Sessions Case No.70/18/9 of 1997-2004 and Sessions Case No.30-B/9/10 of 2002-04).

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Samaru Jal …… Appellant -versusState of Odisha …… Respondent For Appellant: Ms. Tapaswini Sinha, Advocate For Respondent: Mr. Sarat Kumar Pradhan Addl. Standing Counsel

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CRLA No. 63 of 2005 Dhruba Charan Sahu …… Appellant -versusState of Odisha …… Respondent For Appellant: Ms. Tapaswini Sinha, Advocate (Amicus Curiae) For Respondent: Mr. Sarat Kumar Pradhan Addl. Standing Counsel

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JCRLA No. 54 & CRLA No.63 of 2005 and CRLA No.283 of 2006 Page 1 of 26

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CRLA No. 283 of 2006

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Padmalochana Dharua …… Appellant -versusState of Odisha …… Respondent For Appellant: Mr. Amiya Kumar Beura Advocate For Respondent: Mr. Sarat Kumar Pradhan Addl. Standing Counsel

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CORAM:

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THE HON’BLE MR. JUSTICE S.K. SAHOO THE HON’BLE MR. JUSTICE CHITTARANJAN DASH

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Date of Hearing & Judgment: 15.04.2025

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By the Bench

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The Appellants, namely Samaru Jal (in JCRLA No.54 of 2005), Dhruba Charan Sahu (in CRLA No.63 of 2005) faced trial in Sessions Case No. 70/18/9 of 1997-2004 and appellant Padmalochan Dharua (in CRLA No.283 of 2006) faced trial in Sessions Case No.30-B/9/10 of 2002-04 along with the coaccused persons namely Kartika Dharua, Makardhwaja Dharua and Ganeswar Dharua in the Court of the learned Additional Sessions Judge (F.T.C), Bolangir for offences punishable under

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sections 302/34 and 120-B/34 of the Indian Penal Code (hereinafter „IPC‟) on the accusation that on 11.11.1996 at about 6.00 a.m. in village Sujia under Loisingha P.S. of district Bolangir, they committed murder of one Swapneswar Sahu (hereinafter „the deceased‟) in furtherance of their common intention and they had also hatched out criminal conspiracy to commit such crime of murder.

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The learned trial Court, vide impugned judgment and order dated 22.01.2005, though acquitted the co-accused persons namely Kartika Dharua, Makardhwaja Dharua and Ganeswar Dharua of all the charges and the three appellants of the charge under section 120-B/34 of IPC, but found them guilty under section 302/34 of IPC and sentenced each of them to undergo rigorous imprisonment for life.

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The prosecution case, as reveals from the F.I.R. and case record, is that one Chudamani Sahu (P.W.6) presented a report on 11.11.1996 before the Officer-in-Charge of Loisingha P.S., informing that on the very day, at about 7.00 a.m. while he along with his paternal uncle Harish Chandra Sahu was sitting on the veranda of their house and engaged in gossip, Keshaba Bhoi (P.W.1) of their village informed them that someone was screaming for help in their field. Hearing the same from him, P.W.6 along with P.Ws.1 & 4 rushed to the field and found the deceased was lying dead with severe bleeding injuries and a

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sword and a spear („Barchha‟) had been pierced in his body and Budhibanta Sahu (P.W.5), who is the grandson of the informant (P.W.6) was present there. Budhibanta (P.W.5) disclosed before P.W.6 that at about 6.00 a.m. on that day, while he along with his father (the deceased) were coming to the field, on the way near the canal, he (P.W.5) went to attend call of nature and the deceased went ahead towards the field to collect some flowers. After a while P.W.5 heard the outcry of the deceased and immediately rushed towards the place from where he heard the voice coming and he saw the deceased was being assaulted by the appellant Samaru Jal with a „Barchha‟ which he pierced in the abdomen of the deceased and appellant Padmalochan Dharua assaulted the deceased by means of a sword on the shoulder as well as on the neck of the deceased, for which the deceased died. Appellant Dhruba Charan Sahu was also present at the spot and he was instigating and inciting the other two appellants namely Samaru Jal and Padmalochan Dharua to kill the deceased. After committing the murder of the deceased, the appellants left the spot. It is further stated in the report that, since 1944 there was civil dispute between the deceased and appellant Dhruba Sahu and several cases had been instituted and for the aforesaid dispute, the appellant Dhruba Sahu along with the appellants Samaru Jal and Padmalochan Dharua entered into conspiracy and committed the murder of the deceased.

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On the basis of such report, Loisingha P.S. Case No.95 dated 11.11.1996 was registered under section 302/34 o IPC by P.W.9, the Officer-in-Charge of Loisingha P.S., who himself took up the investigation of the case.

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During the course of investigation, the I.O. (P.W.9) examined the witnesses, visited the spot, prepared the spot map (Ext.11), seized some incriminating material objects from the spot as per the seizure list (Ext.2), held inquest over the dead body of the deceased and prepared the inquest report (Ext.1), sent the dead body to the District Headquarters Hospital, Bolangir for post mortem examination, seized the sample earth and blood-stained earth from the spot, as per the seizure list (Ext.3). On 12.11.1996 he seized the command certificate, the wearing apparels of the deceased so also the weapons which were found stabbed/pierced on the body of the deceased, on being produced by the escorted constable under seizure list (Ext.7). On 13.11.1996 the appellants Samaru Jal and Dhruba Sahu were arrested and forwarded to the Court. The I.O. received the post mortem report and also received the opinion report relating to the possibility of the injuries sustained by the deceased by the weapons seized, sent the exhibits to the R.F.S.L., Ainthapali through the J.M.F.C., Loisingha for chemical examination and also received the Chemical

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Examination Report and on completion of the investigation, he submitted charge-sheet against the three appellants namely Samaru Jal, Dhruba Charan Sahu and Padmalochan Dharua, showing Padmalochan Dharua as absconder.

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It appears from the case record that the investigation was re-opened pursuant to the direction of this Court in O.J.C. No.5600 of 1997, which was filed by the wife of the deceased and accordingly, the Crime Branch Police took up the investigation and submitted charge sheet against three other coaccused persons namely Kartika Dharua, Makardhwaja Dharua and Ganeswar Dharua besides the present three appellants who were charge sheeted earlier. Thereafter, all the sessions cases were tagged together for analogous hearing.

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The defence plea of the appellants is one of denial and it is stated that due to previous party faction in the village and animosity regarding landed property, they have been falsely implicated in the case.

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Learned trial Court, after assessing the evidence on record, came to hold that there is no evidence to show that there was any agreement between the persons accused of the murder committed pursuant to such meeting of mind and there is no evidence that the accused persons had proceeded to witness Kalipuja at Loisingha and thereafter killed the deceased and further held that mere gathering is not enough to prove an

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offence of conspiracy in absence of proof of agreement between the parties and accordingly held that the prosecution has failed to prove the charge under section 120-B of the IPC against the accused persons. Learned trial Court further held that the facts and circumstances of the case make it clear that the offence had been committed by the appellants Dhruba Charan Sahu, Padmalochan Dharua and Samaru Jal in furtherance of their common intention. The fatal blows by the deadly weapons were given by Padmalochan Dharua and Samaru Jal and the mastermind working behind them was none else than the appellant Dhruba Sahu, and accordingly found the appellants guilty under section 302/34 of IPC.

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However, so far as the other three co-accused persons are concerned, who were subsequently arrayed as accused in the case, on the basis of the Crime Branch investigation, the learned trial Court held that the prosecution has failed to prove the case under section 302/34 of IPC against them beyond all reasonable doubt.

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Ms. Tapaswini Sinha, learned counsel appearing for the appellant Samaru Jal in JCRLA No. 54 of 2005 is engaged as Amicus Curiae for the appellant Dhruba Charan Sahu in CRLA No.63 of 2005. Mr. Amiya Kumar Beura, learned counsel appeared for appellant Padmalochan Dharua in CRLA No.283 of 2006.

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Ms. Sinha, learned counsel contended that the conviction of the three appellants is based on the solitary evidence of P.W.5 Budhibanta Sahu, who is none else than the son of the deceased and he cannot be said to be an absolutely reliable and truthful witness, in as much as the learned trial Court has not accepted his versions implicating the three coaccused persons, as deposed to by him, in connection with the murder of the deceased. Ms. Sinha, further argued that the evidence of this interested witness, which has been partly disbelieved by the learned trial Court, cannot be accepted to convict the present three appellants too. She further argued that even though at the initial stage, there was no allegation whatsoever against the three co-accused persons and the F.I.R. was lodged only against the present three appellants, the prosecution developed its case at a later stage and implicated the three co-accused persons to face the trial who got acquitted of the charges. According to the Ms. Sinha, the learned counsel, the informant (P.W.6) has no direct knowledge about the incident and all that is found narrated in the F.I.R. are the information fetched to him by P.W.5 and in the F.I.R., there is nothing that the appellant Dhruba Charan Sahu assaulted the deceased by means of „Bhujali‟ deposed to by P.W.5 in his evidence and the only overt act that has been attributed against the said appellant Dhruba was that he was inciting the assailants

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Padmalochan Dharua and Samaru Jal saying them to kill the deceased and therefore, it is a fit case where benefit of doubt should be extended in favour of all the appellants.

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Mr. Amiya Kumar Beura, learned counsel appearing for the appellant in CRLA No.283 of 2006 adopted the arguments advanced by Ms. Sinha, learned counsel.

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Mr. Sarat Kumar Pradhan, learned Additional Standing Counsel for the State, on the other hand, supported the impugned judgment and submitted that even though the evidence of P.W.5 regarding implication of three co-accused persons have not been accepted, his evidence relating to the overt act committed by the three appellants has got ample corroboration from the other witnesses as well as medical evidence. The doctor (P.W.8) has noticed not only penetrating wound caused by means of spear (Barchha) which found pierced into the abdomen and a Talwar (sword) in the right side neck but also other incised wounds and opined that the injury no.(i) and injury no.(ii) are individually sufficient in ordinary course of nature to cause death. Learned counsel for the State further submitted that, the role played by appellant Dhruba Charan Sahu, as stated by P.W.5, to have caused the Bhujali blow cannot be said to be an exaggerated version merely because the same did not find place as the initial story mentioned in the FIR, as the same has been stated by the

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witness before the Magistrate recorded U/s. 164 Cr.P.C and further he having abetted the crime as stated by all the witnesses in consistence, is equally responsible to share the intention with the appellants Samaru Jal and Padmalochan Dharua and as such there is no infirmity or illegality in the impugned judgment and order of conviction passed by the learned trial Court and hence all the three appeals deserved to be dismissed.

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Adverting to the contentions raised by the learned counsel for the respective parties, the nature of accusation, at the outset it is incumbent for us to see whether the prosecution has successfully established that the deceased Swapneswar Sahu met with a homicidal death.

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In this connection, apart from the inquest report prepared by the I.O. (P.W.9) vide Ext.1, the evidence of the doctor (P.W.8), who conducted the post-mortem examination over the dead body of the deceased on 11.11.1996 is very relevant. P.W.8 has noticed the following external injuries on the body of the deceased:-

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(i) One through and through penetrating wound along with the „barchha‟ (spear) entered through right side of the abdomen and coming out on the right-side chest between 4^th and 5^th ribs, spaces with the tip and back portions seen outside the body;

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(ii) One incised and penetrating wound of size 4” depth, 1 2/3^rd inch length and ¼” width along with the bent „talwar‟ over the right-side neck ½” below the mandibular angle;

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(iii) One incised wound of size 10” length, ½” breadth and 2 ½” depth on right side neck;

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(iv) One incised wound of size 3” length and ½” breadth and ½” depth on right side neck;

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(v) One incised wound of size 5” length; ½” breadth and 1/3^rd inch depth over left side neck and back;

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(vi) One incised wound of size 3” length; ¼” breadth and ½” depth on back side chest;

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(vii) One chopped wound of oval shape 4” length, 3” breadth and ½” depth over right deltoid area;

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(viii) One incised wound of size 3” length, ½” breadth and 1/3^rd inch depth over left shoulder;

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(ix) One cut injury of size 4” length, ½” breadth and ½” width over right skull area.

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He has opined that, injury no.(i) was sufficient in the ordinary course of nature to cause death due to internal bleeding of about 2 litres of blood. The injury no.(ii) was also sufficient in the ordinary course of nature to cause spinal shock and death.

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All the injuries were ante-mortem in nature. The cause of death was due to hypovolemic and neurogenic shock as a result of injuries to the vital organs like lever and spinal cord. The time since death was within 24 hours of the post-mortem examination. He proved the post-mortem examination report, marked Ext.9. He further stated that, on police requisition, he examined the spear (Barchha) and Talwar (sword) and opined that the injuries on the body of the deceased could be possible by such weapons and his opinion has been marked as Ext.10 and the Barchha (spear) has been marked as M.O.-IV and the Talwar (sword) has been marked as M.O.-V. Nothing has been elicited in the cross-examination to disbelieve the evidence of P.W.8. The learned counsel for the Appellants has also not seriously challenged the evidence of P.W.8.

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Considering the submissions made by the learned counsel for the parties, the inquest report (Ext.1), evidence of the doctor (P.W.8) and the post-mortem report (Ext.9), we are of the view that the findings recorded by the learned trial Court that the deceased met with a homicidal death, is quite justified.

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Now coming to the evidence of the witnesses to examine the culpability of the appellants, admittedly the entire prosecution case hinges on the solitary evidence of eye-witness P.W.5. Therefore, the acceptability of the evidence of the testimony of P.W.5 requires a close scrutiny. Law is well

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settled that, in order to act upon the evidence of a solitary witness, the evidence must be truthful, clear, cogent and above the board.

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However, having regard to the arguments advanced by the learned counsel for the respective parties, it is incumbent to deal with the testimonies of the relevant witnesses for better appreciation of the case including that of P.W.5.

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P.W.1 Keshaba Bhoi in his evidence on oath deposed that around five years ago, on a Monday morning, while he was on his way to the village tank to attend to the call of nature, he heard a commotion. From the noise, he understood it was Budhibanta (P.W.5), the son of the deceased, crying. Proceeding towards the house of the deceased, he saw Chudamani Sahu (P.W.6) and Harish Chandra Sahu conversing in front of Chudamani‟s house. Upon asking them about the deceased‟s whereabouts and informing them about the cries of P.W.5, P.W.1 along with P.W.6 and later Kunja Bhoi (P.W.4), proceeded towards the tank. At the spot, they met P.W.5, who informed them that Makardhwaja Dharua and 4–5 others had killed his father. The group then went to the location adjoining the threshing floor of P.W.6 and found the deceased‟s body with visible bleeding injuries. A spear was found pierced from the right to the left side of the chest and a sword was stuck into the back of the neck. On being asked by P.W.6, P.W.5

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disclosed that Makardhwaja Dharua assaulted his father with a tangia, Padmabhusan Dharua with a sword, Dhruba Charan Sahu with a bhujali, and Kartika Dharua and Ganeswar Dharua with lathis. After this, P.W.6 went to Loisingha Police Station to report the matter, following which the police came to investigate.

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P.W.2 Kishore Kumar Sahu, son of Chudamani Sahu (P.W.6) is a seizure and inquest witness who stated that he knew all the accused, including Ganesh Dharua. On 11.11.1996, a Monday morning in between 6 a.m. to 7 a.m., while he was repairing his bullock cart near his cowshed, his father‟s elder brother, Harishchandra Sahu, informed him that Budhibanta Sahu (P.W.5) was crying in his land. On his way there, P.W.2 found the deceased was lying dead near the western side of their threshing floor. The body was positioned with the head to the north and feet to the south. A spear had pierced the deceased‟s belly from the right side and touched the ground on the left side. A sword was stuck to the right side of the neck, and there were bleeding injuries on the head and other parts of the body. When they called P.W.5 and asked about the incident, P.W.5 told them that while he and his father were heading to their land, he had stopped to relieve himself. His father went ahead alone. Shortly after, P.W.5 heard his father shouting, “Dhaunre Budhibanta, mari gali, mari gali .” He ran

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towards the voice and from behind a semal tree, he saw Makardhwaja Dharua attacked his father with a tangi, Samaru Jal assaulted his father with a spear, Dhruba Charan Sahu with a bhujali, Padmalochan Dharua with a sword and Kartika Dharua and Ganeswar Dharua with lathis. When P.W.5 cried out for help, all the accused persons chased to assault him for which he ran to the village, and the accused persons left thereafter. P.W.2 also deposed that Kunjabihari Bhoi (P.W.4) then revealed to them that on the night before, while he had stepped out to wash after dinner, he saw Samaru Jal, Dhruba Sahu, Kartika Dharua, Ganeswar Dharua, and Padmalochan Dharua going into Makardhwaja‟s house. Later that night, Kunjabihari (P.W.4) overheard Makardhwaja saying that they would go to Loisingha the next morning to kill the deceased. P.W.2 stated that his father, Chudamani (P.W.6), went to Loisingha Police Station to report the incident. Around 8 a.m. on the same day, the Officerin-Charge visited the scene, and P.W.2 came to know from the villagers that five individuals from the village were taken by the police. He further stated that 2–3 years before the incident, there was a quarrel between the deceased and Makardhwaja over a lease of the tank for pisciculture. About two months prior to the murder, Makardhwaja‟s wife had died and he suspected that the deceased had caused it through witchcraft. There was also a long standing land dispute between Kishore‟s family and

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that of Dhruba, dating back to his grandfather‟s time. He confirmed that the deceased was his agnatic brother.

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P.W.3 Rabi Chandra Pradhan, inquest witness, deposed that he knew the accused Makardhwaja Dharua and Dhruba Sahu. Around five years ago, in the month of Kartika on a Monday morning in between 6 a.m. to 7 a.m., he heard about the killing of the deceased in his land. Upon reaching Chudamani Sahu‟s house, he saw the deceased with a spear pierced through the belly from the right side to the left, the shaft touching the ground. A sword was also stuck into the right side of the deceased‟s neck. There were bleeding injuries on the head and other parts of the body. Upon inquiry, Budhibanta (P.W.5) narrated the incident.

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P.W.4, Kunja Bihari Bhoi stated that on the night before the incident, while he stepped outside to wash up after dinner, he saw Samaru Jal, Dhruba Sahu, Kartika Dharua, Ganeswar Dharua, and Padmalochan Dharua entering Makardhwaja‟s house. Later that night, upon going outside again to attend call of nature, he overheard Makardhwaja saying that they would go to Loisingha on the next day and kill the deceased, after which everyone left. The next morning, while on his way to the deceased‟s house, he met Chudamani (P.W.6), who told him that he had heard Budhibanta (P.W.5) shouting. They proceeded together to the tank, where they found P.W.5,

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who informed them that Makardhwaja Dharua and 4–5 others had killed his father. Along with P.W.5, they went to the place near the threshing floor of P.W.6 and found the deceased‟s body with bleeding injuries. A spear had pierced the chest from right to left, and a sword was stuck at the back of the neck. Thereafter, P.W.6 went to Laisingha Police Station to report the matter. The police arrived at the village and took all the accused, except Padmalochan, to the station. P.W.4 further stated that he accompanied P.W.6 to the police station, where the police asked P.W.6 to submit a written report. When P.W.6 expressed his inability to write due to being emotionally disturbed, the police presented a written report and threatened him into signing it.

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P.W.6 Chudamani Sahu , deposed that in the early morning of 11.11.1996, while he was talking with his elder brother Harishchandra Sahu on the veranda of their house, Keshaba Bhoi (P.W.1) of their village came running from the direction of the village tank. P.W.1 inquired whether Budhibanta (P.W.5) and Sapneswar (the deceased) were at home, to which P.W.6 replied that they had gone to their land. P.W.1 then informed them that he heard P.W.5 crying near the land. P.W.6 joined others to proceed towards the land. On the way, near the canal bridge, they encountered P.W.5, who was crying as he came from the land. On being asked, P.W.5

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informed them that his father had been killed. When P.W.6 further asked who was responsible, P.W.5 named five individuals along with the accused Makardhwaja Dharua as the perpetrators. Thereafter, P.W.6 along with P.W.1, P.W.4 and P.W.5 proceeded to the spot. Upon reaching the threshing floor belonging to P.W.6, they found the deceased was lying dead with bleeding injuries. A spear was pierced through the belly of the deceased, and a sword was stuck into his neck. Near the body, a toothbrush, a tongue cleaner, some flowers, and tulsi leaves were found. On being asked about the incident, P.W.5 narrated the entire occurrence, stating that while he was on his way to the land with his father, he had gone aside to attend to the call of nature and during that time, he heard his father shouting, “Budhibanta Budhibanta, mari gali mari gali” and then saw from behind a semal tree that Makardhwaja Dharua assaulted his father with an axe, Samaru Jal assaulted by means of with a spear, Padmalochan Dharua with a sword, Dhruba Charan Sahu with a bhujali, and Kartika Dharua and Ganeswar Dharua with lathis. Upon raising a hulla, the accused persons rushed towards him to assault and chased causing him to flee in fear towards the village and that on the way, he met P.W.6 and others and recounted the incident. P.W.4 also disclosed that on the previous night, he had seen Samaru Jal, Dhruba Sahu, Kartika Dharua, Ganeswar Dharua, and Padmalochan Dharua

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entering the house of Makardhwaja Dharua. Later that night, when he stepped outside again, he overheard Makardhwaja saying that they would go to Loisingha to witness Kali Puja, take dinner at the house of his elder brother, and then kill the deceased. Kunja further added that he had seen all the accused persons coming out of Makardhwaja‟s house and had earlier informed the deceased about their threats. However, since it was night, he decided to report the incident to the deceased in the following morning. P.W.6 then went to Loisingha P.S. and verbally reported the incident to the Officer-in-Charge (OIC). He then accompanied the police back to the spot, where the police examined the witnesses and assigned two constables to guard the body. The police informed him they would return to the village. Subsequently, P.W.6, along with P.W.4, went back to the police station. There, the OIC arrived with all the accused persons except Padmalochan Dharua and asked P.W.6 to submit a written report. When he informed the police that he was feeling unwell and could not write due to emotional distress and dizziness, the police prepared a written report and asked him to sign it. The contents of the document were not read out or explained to him. P.W.6 further stated that 2–3 days after the occurrence, the police released the accused Makardhwaja, Kartika, and Ganeswar, while keeping Dhruba and Samaru Jal in custody. Due to suspicions regarding improper investigation

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by the Loisingha police, the deceased‟s wife filed a complaint with higher authorities and the District Collector. When no action followed, a case was filed before the High Court. He clarified that the report marked as Ext.4 was not drafted based on his verbal statement given to the OIC. In his crossexamination, P.W.6 remained consistent with his examinationin-chief and elaborated further on what he had already stated.

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Nothing has been brought out in the cross-examination of P.Ws.1, 2, 3, 4 and 6 to disbelieve their evidence.

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As seen from the evidence, the witnesses are consistent in their statements with regard to the factum of incident, nature and place of injuries seen by each of them sustained by the deceased, the weapon used in the commission of crime besides the spot of incident. It is also consistent that P.W.5 narrated the incident before them in great detail and there is absolutely no anomaly thereto. The incisive cross examinations faced by the witnesses have not been able to demolish their testimonies. Hence, the evidence of the post-occurrence witnesses, whose version are the basis of the version of P.W.5, goes uncontroverted save and except that of the discrepancies pointed out by the learned counsel for the appellants vis-à-vis nature of culpability of the appellant Dhruba Charan Sahu.

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P.W.5 Budhibanta Sahu, the son of the deceased, being the sole eye witness to the occurrence, deposed that on the day

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of the occurrence, while he was going towards their land with his father (deceased), he stopped on the way to attend to the call of nature and his father proceeded alone. Shortly after, he heard his father shouting, “Budhibanta Budhibanta, mari gali mari gali.” He further stated to have immediately ran in the direction of the cries and from behind a semal tree, he witnessed the accused Makardhwaja Dharua assaulting his father with an axe, Samaru pierced a spear on his body, Padmaochan assaulted him with a sword, accused Dhruba assaulted with a bhujali, accused Ganeswar and Kartika assaulted with lathis to his father. Upon seeing this, when he raised a hulla to call for help, the accused persons chased to assault him. Out of fear, he ran away to the village. On the way, he met Chudamani Sahu (his father‟s uncle) (P.W.6) along with Kunja Bhoi (P.W.4) and Keshaba Bhoi (P.W.1) near the canal and informed them about the incident. Thereafter, the group returned to the spot and found the deceased lying with multiple bleeding injuries. A spear was pierced through his chest from the right side to the left armpit and a sword was stuck into the back of his neck. On being asked again by P.W.6 about the incident, P.W.5 reiterated the sequence of events. At that point, P.W.4 (Kunja Bhoi) also recounted his part, stating that he had overheard Makardhwaja Dharua on the previous night talking about killing the deceased along with others, but due to fear, he had not informed the

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family. P.W.5 further stated that by the time of the incident, the accused Makardhwaja was not on good terms with his father. About two months before the incident, Makardhwaja‟s wife had died and he believed that the deceased had caused her death through witchcraft, vowing to kill him in return. P.W.5 came to know about this only 3–4 days prior to the occurrence through P.W.4. He also stated that on 11.11.1996, the police seized from the spot three pairs of chappals, three empty liquor bottles, one napkin belonging to his father and M.O.-IV and M.O.-V along with one pair of his father‟s chappals.

¶86

The learned trial court, taking into account the fact that the initial version of P.W.5 made before the informant (P.W.6) was only with respect to the three appellants and the evidence implicating the three co-accused persons namely Kartik Dharua, Makardhwaja and Ganeswar Dharua being an improvement in the case of the prosecution to rope in the persons in animosity were not accepted and accordingly, they were acquitted of all the charges.

¶87

So far as the appellants namely Samaru Jal and Padmalochan Dharua are concerned, we find that not only the evidence of P.W.5 is consistent in that respect, but such statements was disclosed by P.W.5 before P.W.6 (the informant) and others as corroborated about their complicity in the crime, in terms of assault on the deceased, as finds place in the F.I.R. So

¶88

JCRLA No. 54 & CRLA No.63 of 2005 & CRLA No.283 of 2006 Page 22 of 26

¶89

far as the appellant Dhruba Charan Sahu is concerned, though in the Court, P.W.5 stated that the said appellant also assaulted the deceased by means of Bhujali, the same was not disclosed by him before P.W.6 at the first instance. The only overt act attributed against the appellant Dhruba Charan Sahu was that he instigated the other two appellants namely Samaru Jal and Padmalochan Dharua at the time of commission of the crime to kill the deceased. Therefore, the evidence attributing assault made by appellant Dhruba Charan Sahu by means of bhujali appears not only to be inconsistent, but also discrepant to the material particular.

¶90

Be it so, keeping in view the totality of the evidence adduced by P.W.5, the solitary witness even though, he implicated the three co-accused persons in the assault of the deceased, which was not accepted by the learned trial Court, but the same cannot be a ground to disbelieve the evidence of P.W.5 in its entirety. No doubt, he is the son of the deceased and the appellants had dispute with the deceased, but being a close relation, he would be the last to screen the real culprit and falsely implicate an innocent person.

¶91

The principle of falsus in Uno falsus in omnibus (false in one thing, false in everything) is not tenable. Even if a portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, notwithstanding

¶92

JCRLA No. 54 & CRLA No.63 of 2005 & CRLA No.283 of 2006 Page 23 of 26

¶93

acquittal of number of other co-accused persons, his conviction can be maintained. In the given circumstances, it is the duty of the Court to put the evidence to scrutiny and where it is found that the grains and chaffs are mixed, it is incumbent upon the Court to separate the grains from the chaffs and, if material corroboration is available to the evidence of the witness, free from embellishment, the same can be acted upon. Falsity of material particular would not ruin it from the beginning to the end. Merely because in some respects, the Court considers the evidence of a witness to be insufficient for placing reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well.

¶94

In the instant case, as discussed, the evidence brought through P.W.5 connecting the two appellants being absolutely aligned to the material particular in all respect, the role attributed by P.W.5 against appellants Samaru Jal and Padmalochan Dharua right from the beginning as narrated before P.W.6 and stated before the police, before the Magistrate in his statement recorded under Section 164 Cr.P.C. so also in the Court is not only consistent but also gets corroboration from the medical evidence as adduced by the doctor (P.W.8) and therefore, we have no hesitation to agree that the view taken by the learned trial Court in holding the two appellants, i.e. Samaru

¶95

JCRLA No. 54 & CRLA No.63 of 2005 & CRLA No.283 of 2006 Page 24 of 26

¶96

Jal and Padmalochan Dharua guilty of the offence under section 302/34 of IPC is just and proper.

¶97

So far as appellant Dhruba Charan Sahu is concerned, since the overt act attributed against him is materially discrepant in nature and it has gone from the stage of mere abettor of the crime to the direct assailant of the decaesed, it would be very risky to come to a finding that the prosecution has proved its case beyond all reasonable doubt against him and therefore, he is entitled to get the benefit of doubt.

¶98

Accordingly, the impugned judgment and order of conviction of appellant Dhruba Charan Sahu under section 302/34 of IPC is not sustainable in the eyes of law and the same is hereby set aside and he is acquitted of such charge extending benefit of doubt. He is discharged from the bail bond.

¶99

The impugned judgment and order of conviction of the appellants Samaru Jal and Padmalochan Dharua under section 302/34 of IPC and the sentences passed thereunder stands confirmed.

¶100

As it appears from the record, both the appellants namely Samaru Jal and Padmalochan Dharua are on bail. They are directed to surrender forthwith before the learned trial Court, failing which the learned trial Court shall take immediate steps

¶101

JCRLA No. 54 & CRLA No.63 of 2005 & CRLA No.283 of 2006 Page 25 of 26

¶102

for their arrest and remanding them to jail custody to serve the sentence.

¶103

In the result, CRLA No.63 of 2005 is allowed and JCRLA No.54 of 2005 and CRLA No.283 of 2006 are dismissed.

¶104

Before parting with the case, we would like to put on record our appreciation to Miss Tapaswini Sinha, learned counsel, who has been engaged as Amicus Curiae for the appellant Dhruba Charan Sahu in rendering her valuable help and assistance towards arriving at the decision above mentioned. She shall be paid a sum of Rs.10,000/- (Rupees Ten Thousand) by the High Court Legal Aid Services Committee. This Court also appreciates the valuable help and assistance provided by Mr. S.K. Pradhan, learned Addl. Standing Counsel for the State. A copy of this judgment be sent to the concerned Court forthwith for information and necessary compliance.

¶105

(S.K. Sahoo) Judge

¶106

(Chittaranjan Dash) Judge Signature Not Verified

¶107

The 15^th day of April 2025 S.K. Parida, ADR-cum-APS

¶108

Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentic Copy Location: ORISSA HIGH COURT, CUT TACK Date: 30-Apr-2025 16:02:28

¶109

JCRLA No. 54 & CRLA No.63 of 2005 & CRLA No.283 of 2006 Page 26 of 26

Padmalochana Dharua v. State

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Padmalochana Dharua v. State

Case brief

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