MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK GA No.20 of 1993 ………..(A) & CRA No.407 of 1992……..(B) In the matter of Appeals under section 378 (1) & (3) and 374 (2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 23.12.1992 passed by the learned Additional Sessions Judge, Bhadrak in Sessions Trial No. 75/22 of 1992. ---- G.A No.20 of 1993………..(A) State of Odisha …. Appellant Jada @ Jagabandhu Bhoi & …. Respondents -versus- Others CRA No.407 of 1992 ……..(B) Jada @ Jagabandhu Bhoi & Others ….. Appellants State of Odisha Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant-
Legal Reasoning
Mr. P. K. Mohanty, Additional Standing Counsel (In G.A No.20 of 1993) GA No.20 of 1993 & CRA No.407 of 1992 Page 1 of 10 For Respondent- Mr. S. Mohapatra, Advocate (In CRA No.407 of 1992) Mr. P. K. Mohanty, Additional Standing Counsel (In CRA No.407 of 1992) Mr. S. Mohapatra, Advocate (In G.A. No.20 of 1993) CORAM: MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Hearing :07.03.2024 :: Date of Judgment:15.04.2024 D.Dash, J. Since these two Appeals arise out of the judgment of conviction and order of sentence dated 23.12.1992, passed by the learned Additional Sessions Judge, Bhadrak, those were heard together for their disposal by this common judgment, on the consent of the parties. The Appellants being arraigned as the accused persons, faced the Trial in the Court of learned Additional Sessions Judge, Bhadrak for commission of offence under section 148/302/149 of the Indian Penal Code, 1860 (in short, ‘the IPC’). The learned Additional Sessions Judge by the impugned judgment convicted the accused persons for commission of offence under section 304-II of the IPC and accordingly, thereunder, each was sentenced to undergo rigorous imprisonment for five years. The Appeal as at ‘A’ has been filed by the accused persons challenging the judgment of conviction and order of sentence passed GA No.20 of 1993 & CRA No.407 of 1992 Page 2 of 10 against them whereas the Appeal as at ‘B’ is at the behest of the State questioning the acquittal of the accused persons for commission of offence under section 302 of the IPC and seeking conviction and sentence thereunder. 2. Prosecution Case:- On 27.09.1990, Gura Dei (Informant-P.W.1) with her husband Baidhar Parida (deceased) and son Raju had been near Dhamra pitch road for drying the paddy. It was in the early morning. Raju returned home after spreading the paddy on the road which was then being guarded by Baidhar (deceased) and Gura (Informant-P.W.1). Baidhar (deceased) thereafter carried some paddy to the rice huller of Dibakar Parida (P.W.2) for milling. A little later, the rest of the paddy were also given in that rice huller. After that when both Gura (P.W.1) and her husband Baidhar (deceased) were returning to village Kismat Krushnapur; Gura (P.W.1) was walking ahead and Baidhar (deceased) pushing a bi-cycle was following her being 10 to 15 cubits behind. It was around 12.30 P.M. near Kandara pokhari, Gura (Informant-P.W.1) suddenly heard the shout of her husband Baidhar, “MARIGALI MARIGALI”. When she turned back, she saw 10 to 15 persons assaulting her husband in front of the house of one Bheka Dalei. They were assaulting by stick, knife and suanti. Gura (Informant-P.W.1) among them could identify Achuta, Nirakar, Sabar, Jada @ Jagabandhu, Sudhakar, Krushna, Banamali, Gana, Sanantan, Daya and Khep. She saw accused Achuta with knife, Sabar with a suanti and all others holding lathis. When she raised shout, Shanti (P.W.4), Krupa (P.W.5), Kailash (P.W.7) and Gaya (P.W.8) arrived and then the accused persons went away. GA No.20 of 1993 & CRA No.407 of 1992 Page 3 of 10 Dibakar (P.W.2) brought a trolley rickshaw and the injured Baidhar was shifted to Basudevpur Hospital. When being advised by the Doctor of Basudevpur Hospital, Baidhar was being taken to Bhadrak Hospital, he succumbed to the injuries on the way. Gura (Informant-P.W.1) then orally reported the matter to the Officer-In- Charge (P.W.11) (O.I.C) of Naikanidihi Police Station, who had then come to village K. Krushnapur. He (P.W.11) reduced the oral report of Gura (P.W.1) into writing and treating the same as FIR and after registration of the case, directed the ASI of Naikanidihi Police Station to take up the investigation. 3. In course of investigation, the ASI of Police (P.W.10) held inquest over the dead body of the deceased Baidhar Parida in presence of witnesses and prepared the report to that effect vide Ext.6. Then he examined the inquest witnesses and submitted the case diary to OIC, Naikandihi Police Station. That P.W.11 taking up the investigation, visited the spot and prepared the report to that effect vide Ext.9. He (P.W.11) from near the spot seized two straws stained with blood and the bark of PALADHUA tree stained with blood in presence of witnesses and prepared the report (Ext.10) to that effect. On that day, he (P.W.11) also seized seven lathis from the house of Sarbeswar Dalei in presence of witnesses under seizure list (Ext.11). The I.O (P.W.11) had examined the informant P.W.1 and other witnesses. On 28.09.1990, the I.O (P.W.11) handed over the charge of investigation to the Circle Inspector, Bhadrak (R) Police Cirlce (P.W.13), who arrested the accused persons and on completion of investigation, he (P.W.13), submitted the Final Form placing the accused to face the Trial for commission of the offence under section 148/302/149 of the IPC. GA No.20 of 1993 & CRA No.407 of 1992 Page 4 of 10 4. Learned SDJM, Bhadrak receiving the Final Form as above, took cognizance of the offence and after observing the formalities committed the case to the Court of Sessions. That is how the Trial commenced by framing charge against the accused and others for the said offences. 5. In the Trial, the prosecution in order to bring home the charges against the accused persons in total examined 14 (fourteen) witnesses. Out of whom, P.W.1 is the informant, the wife of the deceased Baidhar, who had lodged the written report which was treated as FIR, Ext.1 whereas P.W.2 is the brother of the deceased. P.W.4, P.W.5 and P.W.7 are the witnesses to the occurrence. The Doctor, who had conducted post mortem examination over the dead body of deceased, has come to the witness box as P.W.6 and P.W.3 is the Doctor, who had initially examined the deceased Baidhar at Basudevpur Hospital. The Investigating Officers have been examined as P.W.10, P.W.11 and P.W.12 respectively. P.W.12 is the Executive Magistrate, who had recorded the dying declaration of the deceased Baidhar. 6. Besides leading the evidence by examining above the witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked as Ext.1 to Ext.20. Out of those, the important are the FIR, Ext.1, Inquest Report, Ext.6, Post Mortem Report, Ext.5 and Spot Map, Ext.9. 7. The plea of the accused persons is that of complete denial and false implication. GA No.20 of 1993 & CRA No.407 of 1992 Page 5 of 10 The Trial Court on going through the evidence let in by the prosecution and upon scrutiny thereof has come to the conclusion that the prosecution has proved the occurrence beyond reasonable doubt by leading clear, cogent and acceptable evidence but has established the complicity of only the accused, namely, Achuta, Jada @ Jagabandhu and Nirakar as to have assaulted the deceased Baidhar and not the others. The Trial Court, however, taking into account the evidence of the Doctor (P.W.6), who had conducted Post Mortem Examination over the dead body of the deceased that the cumulative effect of all the external injuries found on the deceased cannot cause death in ordinary course of nature and that the death was precipitated due to anxiety and second infarction and further, the accused persons having assaulted by ‘balam’ and ‘lathi’ had the knowledge with such act is likely to cause death or to cause such deadly injuries as is likely to cause death, held them guilty for commission of offence under section 304-II of the IPC and sentenced them as aforestated. 8. Learned counsel for the Appellant (accused persons) submitted that the Trial Court without properly scrutinizing the evidence of the prosecution witnesses especially, P.W.1 and then simultaneously reading the evidence of other witnesses, who have said to have arrived hearing the shout of P.W.1 has gone wrong in holding that the prosecution has proved the participation of these accused persons in the said incident in causing injuries upon the deceased beyond reasonable doubt. He submitted that the evidence of all these witnesses being properly scanned do not satisfy the test of reliability in so far as the role played by these accused persons are GA No.20 of 1993 & CRA No.407 of 1992 Page 6 of 10 concerned. He, therefore, contended that the conviction of the accused persons for committing the offences under section 304-II of the IPC cannot be sustained. 9. Learned Counsel for the Respondent-State submitted that the evidence of the prosecution witnesses to the effect that these accused persons assaulted the deceased by means of weapons such as balam and lathi are wholly believable which the Trial Court has rightly accepted as their versions contain no such infirmity. He, however, contended that with such evidence on record, keeping in view the manner in which the incident took place as stated by P.W.1 and others, since the accused persons had assaulted the deceased by dangerous weapons and ultimately, the injuries caused thereupon have led to the death of the deceased, the conviction of the accused persons ought to have been for commission of offence under section 302 of the IPC and not under section 304-II of the IPC. 10. Keeping in view the submissions made, we have carefully read the judgment of conviction impugned in this Appeal. We have also gone through the depositions of all the witnesses P.W.1 to P.W.14. We have also perused the documents which have been admitted in evidence and marked Ext.1 to Ext.20. 11. With the available evidence of the Doctor-P.W.3, who had first examined injured Baidhar, we find that the deceased had sustained two cut stitched injuries over the middle of the upper lip and middle of shin of the right leg. There was also dislocation of the right upper inciser fraction of left forearm and left leg. During Post Mortem Examination conducted by P.W.6, he too has noted those injuries and has indicated all those in detail in his report (Ext.5). His GA No.20 of 1993 & CRA No.407 of 1992 Page 7 of 10 specific evidence however is that the cumulative effect of all the external injuries cannot cause death in the ordinary course of nature. According to him, Baidhar died due to anxiety infarction, which was over the old infraction. So according to him, the death is not the direct result of the injuries but the injuries have precipitated the second infarction when the deceased had one such earlier. This being the evidence of the Medical Expert-P.W.6 if the evidence of the prosecution witnesses, more particularly that of P.W.1 is accepted as reliable and trustworthy insofar as the role of these accused persons are concerned in assaulting the deceased when viewed with the surrounding circumstances as those emanate from evidence with the relationship of the accused persons with the deceased as co-villagers, in our considered view, the Trial Court cannot be said to have faulted in holding that for the said act, the accused persons are liable under section 304-II of the IPC. 12. Now, coming to the finding of the Trial Court based on the evidence as to the complicity of these accused persons in assaulting the deceased which has been challenged by the accused persons, let us first of all examine the evidence of P.W.1, who is the star witness for the prosecution. She is none other than the wife of the deceased. It is her evidence that on the way, when she heard the shout of her husband “MARIGALI MARIGALI”, she turned back and saw accused Achuta giving blow by Balam on the lips of her husband, accused Sabar assaulted on the legs of her husband by Suanti and others were assaulting her husband by sticks. She then stated to have raised hullah and hearing that P.W.4, P.W.5, P.W.7 and P.W.8 arrived. On GA No.20 of 1993 & CRA No.407 of 1992 Page 8 of 10 going through the entire deposition of P.W.1, we find that her evidence with regard to the role of these accused persons has remained unshaken. Rather, we find it to be consistent all throughout and the witness has also successfully withstood the rigorous cross- examination on that score. Nothing further has been elicited from her to caste any doubt as to her presence at the relevant time being ahead of her husband at a distance of 10 to 15 cubits. When sofar as the role of other accused persons are concerned, there being inconsistencies and contradictions as have been noted by the Trial Court and discussed in detail, the said part of the evidence P.W.1 has been rejected. P.W.2 is the witness, who has stated to have arrived at the spot immediately after the occurrence and he has stated that accused Sabar was seem running away holding suanti and accused Achuta running away holding balam and other accused persons with lathis which to that extent provide corroboration to the evidence of P.W.1. P.W.4 is the other witness and stated to be then walking 10 to 15 cubits ahead of P.W.1 and her evidence is that hearing hullah she when turned back, she saw accused Achuta giving a blow by balam on the mouth of Baidhar and then accused Sabar assaulted him on his leg by suanti and others by lathis. Such evidence of P.W.4 again provide corroboration to the evidence of P.W.1. Similarly, P.W.5 has also stated that when hearing hullah he looked back, he saw accused Achuta giving a balam blow on the mouth of Baidhar and then accused Sarbeswar @ Sabar gave a blow on the leg of Baidhar by a suanti and accused Nirakar, Jagabandhu and others assaulted Baidhar by lathi. It has also been stated by P.W.7 that he had seen accused Achuta giving balam blow on the mouth of Baidhar and Sarbeswar giving a blow by suanti and accused Nirakar and Jagabandhu GA No.20 of 1993 & CRA No.407 of 1992 Page 9 of 10 assaulted by lathi. It is also the evidence of P.W.8 that accused Achuta had given balam blow on the mouth of Baidhar and after he fell down, accused Sabar gave a blow by suanti whereafter accused Jagabandhu, Nirakar and others assaulted Baidhar by lathi. 13. In view of the above discussed evidence of the prosecution witnesses, the medical evidence falling from the lips of P.W.3 and P.W.6 as regards the nature of injuries sustained by Baidhar (deceased) at par, we too hold that the complicity of these accused persons has been established beyond reasonable doubt. 14. In the wake of aforesaid, we decline to interfere with the judgment of conviction and order of sentence as passed by the Trial Court. 15. Accordingly, both the Appeals stand dismissed. Since the Appellants-accused persons, namely, Jada @ Jagabandhu Bhoi, Nirakar Behera & Achutananda Rout are on bail, they are directed to surrender before the Trial Court forthwith to serve out the sentence. V. Narasingh, J. I Agree. (D. Dash), Judge. (V. Narasingh), Judge. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 16-Apr-2024 16:31:15 GA No.20 of 1993 & CRA No.407 of 1992 Page 10 of 10