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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.149 of 1990 This is an appeal under Section-374(2) of Cr. P.C. ……………… Sahadev Bisoi & Others …. Appellants -versus- State of Odisha & Others …. Respondents For Appellant : M/s. Mr.D.R. Mohapatra (Amicus Curiae) For Respondents : M/s. P.K. Panda, Addl. Standing Counsel PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing: 04.12.2024 and Date of Judgment:06.03.2025 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Mode. 2. The present appeal has been filed by the Appellants challenging the order of conviction and sentence dtd. 19.05.1990 passed in Sessions Case No.183/1989 by the learned Sessions Judge, Ganjam, Berhampur. Vide the said judgment, appellants have been convicted for the offence // 2 // under Sections 304 Part-II, 323, 201 read with Section 34 of the I.P.C. Accordingly all of them were sentenced to undergo RI for 5 years for the offence under Sections-304 Part-II, for 1 year under Section 323, and 3 years under Section- 201 of the I.P.C. 3. The prosecution story in nutshell reads as follows:- “That the prosecution case in brief vas that on 19.6.1989 in the evening one Hazari Das of village Paikanheipur after retrieving his grains from the pit dug in front of the house of P. W.1, kis cousin sister (mother, sister’s daughter) left his cousin's residence for neighbor tank to take bath and return for supper. He did not return and P.W.1 awaited her arrival by sitting in front of her verandah in village Maheswarpur. It is alleged at about 11 P.M. while P.W.1 was taking position upon her said verandah heard the noise of a quarrel coming from the side of the betel shop of P.W.8 and marking the voice of her cousin since deceased. P. V.1 went to the house of her neighbor Jagannath Moharana for assistance and noticed the deceased exchanging hot words with the accused persons in front of that betel shop. Jagannath Moharana went out but returning in no time informed P. W.1 not to Page 2 of 12 // 3 // have noticed the presence of the deceased and further stated that it is not desirable to meddle in the quarrel of ruffians. Thereafter P. W.1 went to the house of one Charan Biswal, another neighbour for securing assistance, but while there heard the deceased raising a cry to the effect that he was being beaten. On being attracted by that cry, she retraced her steps and found the accused persons encircling him. She tried to interfere but pushing her off the miscreants (accused persons) dragged away the deceased towards the road junction and giving him a good amount of beatings by inflicting kicks and fist blows carried him away towards the temple of the village. She went after them but missing owing to their having taken a diversionary path- way forking out of the main raod, went and altered P.W.2, the brother of the deceased, and thereafter they alerted other relatives including P.W.3 and together with them combed the locality but on finding no trace of the deceased lodged the report ixt.1 with police on the following morning at 8.45 A.M. Thereafter P.W.9, the Investigating Officer registered a case under Sec. 369/323/34 I.P.C. and thereafter investigated into the matter. Two days thereafter the dead body of the deceased was found floating inside a water tank about 2 K.Ms away from the residence of P.W.1 Page 3 of 12 // 4 // on 21.6.1989 morning. P. W.1 held inquest over the dead body, sent the dead body for post-mortem examination, and after investigation submitted charge sheet under Section 323/342/302/201 read with Section 34 of Indian Penal Code and also under Section 364 thereof”. 3.1. It is contended that even though all the accused persons when charged under Sections 323, 342, 302 and 201 read with Section 34 of the I.P.C and also for the offence under Section-364 of the I.P.C, learned Sessions Judge convicted the appellants for the offence under Section-304 Part-II, 323 and 201 read with Section 34 of the I.P.C. 3.2. Learned amicus curiae appearing for the appellants contended that the prosecution in order to prove its case examined as many as 9 P.Ws, which includes P.Ws.1 and 3 who are the eye witnesses to the alleged occurrence, P.W.4, the doctor, who conducted post-mortem of the deceased and P.W.9, the I.O of the case. 3.3. Learned amicus curiae while assailing the impugned judgment contended that since all the independent witnesses namely P.W.6 to 8 turned hostile during the trial, basing on the evidence of P.W.1 and 3, who were related Page 4 of 12 // 5 // witnesses, the appellants could not have been held the guilty for the offence under Sections-304 Part-II, 323, 201 read with Section-34 of the I.P.C. 3.4. It is contended that the alleged incident occurred on 19.06.1989 and the F.I.R was lodged on 20.06.1989 by the brother of the deceased / P.W.2. All the appellants on their own surrendered on 25.07.1989 and faced the trial. But vide the impugned judgment dtd.19.05.1990, all the appellants were convicted for the offences as indicated hereinabove. However, in terms of the order dtd.12.06.1990 so passed by this Court, all the appellants were released on bail and continuing as such as on date. But since during pendency of the appeal appellant No.1 died, vide order dtd.25.09.2023, the appeal was abated against appellant No.1. 3.5. It is contended that since all the independent witnesses so examined by the prosecution turned hostile during the trial, basing on the statement of P.W.1 and 3 who are related witnesses, the appellants could not have been held guilty for the offence under Section-304 Part-II, 323, 201 read with Section-34 of the I.P.C. Page 5 of 12 // 6 // 3.6. It is also contended that even though no materials could be brought against the appellant Nos.2 and 3 but they have been treated at par with the appellant No.4 and all of them were convicted and sentenced for the offence under Section-302 Part-II, 323, 201 read with Section-34 of the I.P.C. 4. Making all the submissions, learned amicus curiae appearing for the appellants contended that the impugned order of conviction and sentence is not sustainable in the eye of law and it requires interference of this Court.
Legal Reasoning
5. Mr. P.K. Panda, learned Addl. Standing Counsel for the State on the other hand while supporting the impugned judgment contended that even though P.W.6, 7 and 8, who are independent witnesses turned hostile during the trial, but in view of the evidence lead by P.W.1 and 3 and so also the opinion of the doctor- P.W.4, which remained uncontroverted, learned Trial Court rightly held the appellants guilty for the offences under Sections-304 Part- II, 323 and 201 read with Section 34 of the I.P.C. 5.1. It is contended that P.W.1, who happens to be an eye witness to the alleged occurrence, in her cross- examination clearly indicated that all the four appellants caused death Page 6 of 12 // 7 // of the deceased-Hazari. P.W.1 in her cross-examination, more particularly in Para-9 and 14 stated as follows:- “9. Hajari, the deceased, his brother's Raju and Bipra, mother Mandn and relations Bancha Das, Subhas Das and Jogendra Das had been standing trial by the time of the incident on the allegation that they had murdered Surendra Tripathy of village Gopalpur which adjoins village Luchapada allas Fai-kon-heipur. By the time of Hajari’s death, villagers of Luchapada and Gopalpur had boycotted all those accused of murder of that Surendra Tripathy. It is not a fact that the accused persons as members of the local association Jubaka Sangha had raised objection to our winning over the witnesses to the murder of Surendra Tripathy, but in spite of their objection we had been able to win them over. It is not a fact that since that time of interference of the accused persons we have been remaining hostile to them. xxx xxx xxx 14. I was clasping my brother after getting on to my verandah and while I was so clasping I had been elbowed out to my fall upon the ground in front of my verandah. I had sustain-d injuries on my hand and back owing to that fall. As there was no one to oppose the accused persons could drag away Hajari from my place. Before I was able to get up and raise the cry in order to attract the attention of the villagers, the miscreants had carried away my brother. Charan Biswal was the first one to come to me in res-ponse to my call and requesting him to keep watch over the door to my house, which was lying open then, went out to inform my brothers, inside the village. After informing my brothers inside the village I returned to my house”. 5.2. It is also contended that P.W.3, in Para-9 of his cross- examination has stated as follows:-‘ “9. My house is at a distance of about one mile from the house of deceased Hazari Das. It is not a fact that I had not seen Hazari Das being belaboured by the accused persons and that owing to relationship with Hazari’s Page 7 of 12 // 8 // family I have falsely implicated the accused persons on giving false evidence”. 5.3. It is also contended that P.W.4 who happens to be the doctor and who conducted the post-mortem of the deceased, in Para-5 of his cross-examination has stated as follows:- “5. There was no external injury corresponding to the internal injury to the spleen. Pounding by means of the butt end of M.0.III could have brought about the rupture of the spleen without leaving any corresponding external injury owing to the fact that the end is cut out /clean, by a saw. It is not a fact that corrugated skin is indicative of death while immersed inside water. It is not a fact that a dead body of a human being on being thrown into water, as it is would not sink but float”. 5.4. It is also contended that P.W.9 who happens to be an I.O. In Para-4 and 5 of his deposition has stated as follows:- the seizure “4. In front of the house of Jagannath Maharana by the side of the road was lying the towel, M.0.1, and I seized the same under list, Ex.11. Shortly thereafter, on production of M.0.1II, the part of a cart- wheel, by Jegannath Maharana, I seized the same under the seizure list, Ex.2. I then examined Sanyasi Parida, Jagannath Maharana, Manojranjan Sahu, Bebhari Sahu and others of the locality and recorded their statements. Thereafter, I went in search of all the four accused persons of this case and the missing person, Hazari Das, but could get no trace of them in their houses or in villages Lochapada, Paikonhelpur, Manikpur, Maheswarpur and Konhelpur. I issued the requisition, Ex.12, for medical examination of Budhi and collected the report, Ex.12/1, from the Medical Officer, who examined her. 5. I searched the houses of the accused persons after combing all those villages. On the following morning, of Page 8 of 12 // 9 // 21.6.1989, while combing the locality, I got information that something was found floating on the water of the Kekudia tank of village Kandhigaon, that was at a distance of 2 kilo-meters from the shop of Bebhari Sahu in the south-eastern direction, and on getting this information, I went to that tank and found the dead body of an adult male person, roughly of the age of about 30 years, bearing injuries, floating on the water of the tank with that underwear, M.O.II, covering the shame and that twine, M.O.IV, adorning the neck”. 5.5. Learned Addl. Standing Counsel for the State also contended that P.W.4, who happens to be the doctor found as many as 16 no’s. of external and internal injuries on the deceased which are all ante-mortem in nature. In Para-2 of his deposition, P.W.4 clearly indicated that all the injuries were homicidal in nature and might have been caused by use of blunt force, like kick, fist blow or strike by means of hard and blunt objects like stick or stone. Statement of P.W.4 in Para-2 reads as follows:- “2.The death had occurred 36 to 48 hours before post- mortem examination. The body had been kept inside water after death but there was no feature of drowning. The death was owing to shock resulting from the internal haemorrhage into the paritonial cavity from the ruptured spleen and external hemorrhage from the right arm. The injuries were homicidal in nature and might have been caused by use of blunt force, like kick, fist blow or strike by means of hard and blunt object, like stick or stone. The grazed abrasion noticed on the back might have come into being on dragging the body upon the ground having rough surface. Ex.8 is the post- mortem report which I had submitted in that regard”. 6.1. Learned Addl. Standing Counsel for the State placing reliance on the evidence of P.W.1, 3 and 4 and that of P.W.9 Page 9 of 12 // 10 // contended that taking into account the evidence of such witnesses, which remained uncontroverted, learned Trial Court by taking lenient view of the matter while not convicted the appellants for the offence under Section-302 of the I.P.C, convicted them under Sections-304 Part-II, 323 and 201 of I.P.C read with Section-34 of the I.P.C. 6.2. It is accordingly contented that no illegality or irregularity can be found with the impugned judgment and the appellants have been rightly convicted and sentenced. 7. I have heard Mr. D.R. Mohapatra, learned Amicus Curiae appearing on behalf of the appellants and Mr. P.K. Panda, learned Addl. Standing Counsel appearing for the State. 8. Perused the materials placed in record. As found the alleged incident took place on 19.06.1989 and basing on the F.I.R lodged by P.W.2, who happens to be the brother of the deceased, the prosecution was set into motion with registration of Rambha P.S. Case No.145/1989, corresponding to G.R. Case No.148/1989. After submission of the final form with due commitment, all the appellants were charged for the offences under Section-323, 342, 302, 201 read with Section 34 of the I.P.C and also for the Page 10 of 12 // 11 // offence under Section-364 of the I.P.C. As found from the record, the prosecution in order to prove its case examined as many as 9 no.s of P.Ws. Out of those 9 P.Ws, though all the independent witnesses, who happens to be P.W.6, 7 and 8 turned hostile during trial, but in view of the uncorroborated statement of P.W.1, who happens to be an eye witnesses to the alleged occurrence read with the statement of P.W.4-doctor, the appellants have been convicted and sentenced for the offence under Sections- 304, Part-II, 323 and 201 read with Section 34 of the I.P.C thereof. This Court after going through the materials available on record finds that the statement of P.W.1, who happens to be an eye witnesses has not been controverted by the defence. 8.1. P.W.4, the doctor who made the post-mortem found as many as 16 no.s of external or internal injury on the dead body of the deceased and all the injuries were ante- mortem in nature. Even though P.W-6, 7 and 8 turned hostile during their examination, but this Court placing reliance of the evidence of P.W.1 and the statement of the doctor-P.W.4 as well as that of the I.O-P.W.9 is of the view that the appellants have been rightly held guilty for the Page 11 of 12 // 12 // offence under Sections 304 Part-II, 323 and 201 read with Section 34 of the I.P.C. 8.2. Therefore, this Court is not inclined to interfere with the impugned order of conviction and sentence so passed vide judgment dtd.19.05.1990. But taking into account the fact that the incident is of the year 1989 and the appellants are continuing on bail w.e.f. 22.06.1990, this Court is inclined to direct for release of the appellant Nos.2 to 4 under the provisions of Probation of Offenders Act, 1958. This Court accordingly directs the court in seisin to release the appellant Nos.2 to 4 under the provisions of Probation of Offenders Act, 1958. Appellant Nos.2 to 4 are accordingly directed to appear before the Court in seisin within a period of one (1) month from the date of receipt of this order. On their appearance, learned Court in seisin shall release the appellant Nos.2 to 4 under the provisions of P.O Act. 9.
Decision
Accordingly, the appeal stands disposed of. Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Mar-2025 17:22:34 Orissa High Court, Cuttack Dated the 6th of March, 2025/Subrat (Biraja Prasanna Satapathy) Judge Page 12 of 12