The Orissa High Court has upheld the conviction of a person, who was sentenced to life for committing murder of his cousin-brother. While dismissing the appeal, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,
"This is not a case of mistaken identity since all the witnesses are close relations of both the accused and the deceased. The fact that the accused hits the deceased with Bala on the head clearly reveals his intention to cause the death of the deceased. This was not on the spur of the moment. The quarrel happened in the evening whereas the incident happened in the night when the deceased was sleeping and wholly unarmed. There was no need for the close relations of the accused to falsely implicate him in the homicidal death of the deceased."
As per the prosecution, the mother of the accused had left the house after quarrelling with his father. The accused was said to have been upset with this and threatened his father. The deceased, who happened to be the elder cousin brother of the accused, protested this act of the accused. A quarrel ensued between them. However, at that point in time, the dispute subsided and, in the evening, both the accused and the deceased took their meals in the house of the accused. The deceased slept in the verandah.
At around 11.30 PM, on hearing the shout of the deceased, the Informant (P.W. 1), the father of the deceased and the uncle of the accused woke up and saw the accused standing with a Bala and his son, the deceased, lying with head injuries. P.W.1 chased the accused, who ran away throwing the Bala at the spot.
The P.W. 1 lodged the report at the Bamebari Outpost. Mr. Pradeep Kumar Baral (P.W.8) was the Investigating Officer (IO), who on 14th June, 2003 at around 7 AM took down the complaint in writing, registered the case and took up investigation. On 15th June 2003, he seized the wearing apparels of the deceased and on the same day at 10.30 AM arrested the accused and seized the wearing apparels of the accused.
The charge was laid against the accused for the offence under Section 302 IPC. He pleaded not guilty and claimed trial.
P.W.1, spoke clearly about he having witnessed the incident. In his cross-examination, he made clear that a 'Dibiri' (a small kerosene lamp) was burning in the room and he was clearly able to recognize the accused. He also mentioned how his wife and his daughter (P.W.3) also woke up and saw the accused run away. He said "to my knowledge, there was no enmity between the accused and the deceased." Except the above sentence, nothing else emerged in the cross-examination of the informant to doubt the veracity of his testimony.
It was argued that the above sentence in the cross-examination shows there was no motive for the crime. However, P.W. 3 said that "at evening, the accused being drunk came to our house and there was exchange of words between my brother and accused. Being asked by us, the accused went away to his house."
Blood stains were detected on the Bala but the blood grouping and the origine could not be detected. On the basis of these evidence, the Sessions Judge, Keonjhar convicted the accused (appellant herein) for the offence punishable under Section 302, IPC and sentenced him to undergo imprisonment for lie. This appeal was filed against the said judgment dated 13th July, 2006.
The Court observed that clearly there was a quarrel between the deceased and the accused in the evening whereas the murder took place in the night while the deceased was sleeping. Although P.W. 3 said in the cross-examination "there was no quarrel between the accused and deceased prior to this incident", what she was referring to, it held, were incidents prior to the quarrel that took place between the accused and the deceased.
The Court further held that the instant case is not a matter of mistaken identity since all the witnesses are close relations of both the accused and the deceased. Again, the fact that the accused hits the deceased with Bala on the head clearly reveals his intention to cause the death of the deceased. Therefore, this was clearly not on the spur of the moment. The quarrel happened in the evening whereas the unfortunate incident happened in the night when the deceased was sleeping and wholly unarmed.
Accordingly, the Court held that there was no need for the close relations of the accused to falsely implicate him in the murder of the deceased. It found the evidence clear and cogent and hence, the Court found no reason to interfere with the trial court's judgment. Consequently, the appeal was dismissed.
Case Title: Baisakhu Sethy @ Behera v. State of Odisha
Case No.: JCRLA 96 of 2006
Judgment Dated: 18th May 2022
Coram: Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik
Judgment Authored By: Chief Justice Dr. S. Muralidhar
Counsel for the Appellant: Mr. R.N. Parija, Advocate
Counsel for the Respondent: Mr. A.P. Das, Additional Standing Counsel
Citation: 2022 LiveLaw (Ori) 72