The High Court · 2002
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.86 Of 2005 An appeal under section 374(2) Cr.P.C. from the judgment and order dated 23.11.2004 passed by the Adhoc Additional Sessions Judge, Khurda in S.T. Case No.29/252 of 2003. ---------------------------- 1. Bichi Naik 2. Mayadhar Naik ....... Appellants -Versus- State of Odisha ....... Respondent For Appellants: - Ms. Anima Dei Amicus Curiae For Respondent: - Mr. Arupananda Das Addl. Govt. Advocate ----------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K.SAHOO AND THE HONOURABLE MR. JUSTICE S.K. MISHRA --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 30.01.2024 --------------------------------------------------------------------------------------------------- By the Bench: The appellants Bichi Naik and Mayadhar Naik faced trial in the Court of learned Adhoc Additional Sessions Judge, Khurda in S.T. Case No.29/252 of 2003 for commission of offences punishable under sections 341/323/302/34 of the [ 2 ] Indian Penal Code (hereinafter the ‘I.P.C.’) on the accusation that on 23rd June 2002 at about 9.00 a.m. in the paddy field situated at Tutumbar Palli Mouza, they wrongfully restrained Dasa Sitha (hereinafter ‘the deceased’), voluntarily caused hurt to Bhaskar Sitha (P.W.13) and also committed murder of the deceased in furtherance of their common intention. The learned trial Court vide judgment and order dated 23rd November 2004 found the appellants guilty under section 302/34 of the I.P.C. and sentenced each of them to undergo rigorous imprisonment for life and to pay a fine of Rs.2,000/- (rupees two thousand), in default, to undergo further rigorous imprisonment for two months. Since it was brought to the notice of this Court that the appellant no.1 Bichi Naik was dead, as per order dated 16.01.2024, it was held that the JCRLA so far as appellant no.1 Bichi Naik is concerned, stood abated. Prosecution Case: 2.
Legal Reasoning
The prosecution case, as per the first information report (hereinafter ‘F.I.R.’) (Ext.5) lodged by Janak Sasmal (P.W.10) before P.W.16, the Officer in-charge of Tangi police station on 23.06.2002, in short, is that on that day at about 9.00 Page 2 of 22 [ 3 ] a.m., while he along with the deceased and P.W.13 were cultivating their land situated in Tutumbar Palli Mouza, the appellants Bichi Naik, Mayadhar Naik and two others namely, Raj Naik and Aparti Naik came there being armed with lathi, katuri and gupti and abused the deceased in filthy language, assaulted him by slaps, fist and kick blows and also pressed his neck. The appellant no.1 Bichi Naik dealt katari blow to the deceased and Aparti Naik also assaulted the deceased by gupti. The deceased sustained head injuries and there was severe bleeding for which he fell down on the ground. P.W.13 Bhaskar Singh, the cousin brother of the deceased intervened to rescue the deceased and he was also assaulted by all the accused persons. The informant (P.W.10) and other persons shifted the deceased to Tangi Government Hospital for treatment but since his health condition deteriorated and there was continuous bleeding from his nose, ears and mouth and he was senseless, the deceased was shifted in an Ambulance to S.C.B. Medical College and Hospital, Cuttack. P.W.16 registered Tangi P.S. Case No.106 dated 23.06.2002 under sections 341/294/323/324/326/307/506/34 of I.P.C. against four accused persons including the appellants and directed the S.I. of Police, Sangram Keshari Biswal (P.W.15) to take up investigation of the case. Page 3 of 22 [ 4 ] During the course of investigation, P.W.15 examined the informant, came to Tangi Hospital where he came to know that the deceased had been referred to S.C.B. Medical College and Hospital, Cuttack and shifted there by his relatives. He visited the spot, collected the sample earth and blood stained earth from the spot and prepared seizure list (Ext.2). He searched the house of appellant no.1 Bichi Naik and seized one katuri with wooden handle as per seizure list (Ext.3). The deceased while undergoing treatment at Cuttack expired and the intimation was received by P.W.16 from Mangalabag police station. Accordingly, the case turned to one under section 302 of I.P.C. and P.W.16 took over charge of investigation from P.W.15. P.W.16 visited the spot, examined the witnesses, seized the broken stick as per seizure list (Ext.4/1). He prepared the spot map (Ext.9), arrested the appellant no.2 Mayadhar Naik on 27.06.2002 and forwarded him to Court on 28.06.2002. He received the injury report of P.W.13 Bhaskar Singh vide Ext.1 and further received information that the appellant no.1 Bichi Naik was undergoing treatment at Capital Hospital, Bhubaneswar and was to be discharged on the same day. P.W.16 proceeded to Bhubaneswar, reached at Capital Hospital, examined the appellant no.1, arrested him after his discharge and produced Page 4 of 22 [ 5 ] him before the Court of learned S.D.J.M., Khurda. He sent requisition to Tahasildar, Tangi for demarcation of the disputed spot and the Tahasildar deputed R.I., Tangi to demarcate the land, who prepared the sketch map (Ext.10). After the death of the deceased, one U.D. case was registered in Mangalabag police station and in that U.D. case, inquest was conducted over the dead body of the deceased, dead body was sent for post-mortem examination and the I.O. (P.W.16) received the U.D. Case records from Mangalabag police station. He also seized the blood stained lungi and napkin of the deceased under seizure list (Ext.8). The seized katuri (M.O.IV) was sent to the doctor, who conducted post-mortem examination for his opinion and the said opinion (Ext.13) was received by the I.O. He examined some other witnesses and made a prayer in the Court of learned S.D.J.M., Khurda to send the material objects to S.F.S.L., Rasulgarh for chemical examination. On completion of investigation, P.W.16 submitted the charge sheet against the appellants on 23.10.2023 under Section 341/323/302/34 of the I.P.C. against the appellants and showing accused Aparti Nayak as absconder. Page 5 of 22 [ 6 ] Framing of charges: 3. After submission of charge sheet, the case was committed to the Court of Session after complying due committal formalities. The learned trial Court framed charges against the appellants as aforesaid and since the appellants refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt. Prosecution Witnesses, Exhibits & Material Objects: 4. During course of the trial, in order to prove its case, the prosecution examined as many as seventeen witnesses. P.W.1 Dr. Ezarun Bibi was the Medical Officer attached to U.G.P.H.C., Tangi, Khurda, who examined the injured (P.W.13) on police requisition and proved her report vide Ext.1. P.W.2 Dandapani Sitha and P.W.7 Manguli Sitha are the witnesses to the seizure of blood stained earth and katuri as per seizure lists Ext.2 and Ext.3 respectively. P.W.3 Sahadev Sahu, P.W.4 Bisika @ Fula Rout, P.W.5 Patitapaban Sahu and P.W.12 Sarat Pradhan did not support the prosecution case for which they were declared hostile by the prosecution. Page 6 of 22 [ 7 ] P.W.6 Biranchi Sitha is a co-villager of the deceased. He stated that while he was taking meal, P.W.9 came and informed him that the appellant no.1, Lodha and Aparti had killed the deceased and immediately he rushed towards the land of the deceased and on the way, he saw that Rabin Sitha and the mother of the deceased were also proceeding towards the spot. He further stated that when they reached at the spot, an auto rickshaw also reached and they brought the injured to the police station and thereafter to the hospital and he found bleeding injury on the head and on the root of the left ear of the deceased and the deceased died at Cuttack hospital while undergoing treatment. P.W.8 Shantilata Dei is the mother of the deceased and also a post-occurrence witness. She stated that that when she arrived at the spot, she found the deceased lying on the ground with severe bleeding injury. She further stated that she brought the deceased to Tangi Hospital and subsequently, he was referred to S.C.B. Medical College and Hospital, Cuttack where he died. She also stated that P.W.13 had cut injuries on his hand and left side leg. P.W.9 Krushna Chandra Sitha is a co-villager and also a post-occurrence witness. He stated that when he went to Page 7 of 22 [ 8 ] pluck mango and jackfruit, he heard a shout from P.W.13 to save him and then he got up and saw labourers were running away and the appellants along with Aparti Nayak came back to the village. He further stated that P.W.13 came to him and told him that the deceased had sustained head injury. He returned back and informed P.W.8 that the deceased was lying with injuries in the land. P.W.10 Janak Sasmal is the informant in the case. He stated that he saw the appellants and one Aparti coming to the land of the deceased holding katuri and gupti but by the time he reached the spot, the appellants had already left the place causing injury on the back side neck of the deceased. He further stated that he brought the injured to Tangi hospital from where he was shifted to Cuttack and as per the instruction of P.W.13, he drafted the F.I.R. and presented it to the police. P.W.11 Pathani Pradhan was the auto driver, who took the patient to the hospital. P.W.13 Bhaskar Sitha is the injured and the brother of the deceased and also an eye witness to the occurrence. He supported the prosecution case. P.W.14 Baikunthanath Dhir was the A.S.I. of Police attached to Mangalabag police station, who held the inquest over Page 8 of 22 [ 9 ] the dead body of the deceased and sent the dead body for post mortem examination and after receiving the post mortem report, he sent the U.D. case record along with the inquest report, seizure list, dead body challan, post mortem report and the seized articles to the Officer in-charge of Tangi police station. P.W.15 Sangram Keshari Biswal was the S.I. of Police attached to Tangi police station, who is the first Investigating Officer of the case. He stated that the injured succumbed to the injury, the Officer in-charge of Tangi police station took over charge of the case from him. P.W.16 Bikash Ranjan Beura was the Officer in- charge of Tangi police station, who took over investigation of the case from P.W.15 and submitted charge sheet against the appellants. P.W.17 Tofan Sitha is an eye witness and also a witness to the inquest over the dead body of the deceased. The prosecution exhibited seventeen documents. Ext.1 is the medical examination report of P.W.13, Ext.2, Ext.3, Ext.4/1 and Ext.8 are the seizure lists, Ext.5 is the F.I.R., Ext.6 is the inquest report, Ext.7 is the dead body challan, Ext.9 is the spot map, Ext.10 is the sketch map, Ext.11 is the post-mortem report, Ext.12 is the requisition (query) for opinion to doctor Page 9 of 22 [ 10 ] Sraban Kumar Nayak, Ext.13 is the opinion of Dr. S.K. Nayak, Ext.14 is the query to Dr. S.K. Nayak, Ext.15 is the opinion of Dr. S.K. Nayak, Ext.16 is the forwarding letter of S.D.J.M., Khurda dated 27.07.2002 to S.F.S.L., Rasulgarh, Bhubaneswar and Ext.17 is the Chemical Examination report. The prosecution also marked five material objects. M.O.I is the stick, M.O.II is the green colour lungi, M.O.III is the white colour napkin, M.O.IV is the katuri and M.O.V is the spade. Defence Plea: 5. The defence plea of the appellants was that on account of civil dispute between the parties, on the date of occurrence, the deceased and P.W.13 chased the appellants and the deceased assaulted the appellant no.1 on his head by means of a spade and the appellant no.1 snatched away the spade from the hands of the deceased and in order to save himself, he waived the spade. In order to prove the defence plea, appellant no.1 Bichi Naik examined himself as D.W.1. On behalf of the defence, certified copy of the F.I.R., which was lodged by Aparti Naik, the cousin brother of the appellant no.1 on behalf of the appellants before the Officer in-charge of Tangi police station in Tangi P.S. Page 10 of 22 [ 11 ] Case No.105 dated 23.06.2002, charge sheet in the said case, injury report of the appellant no.1, requisition for final opinion of injury of the appellant no.1 and final opinion of the appellant no.1 relating to the injury so also the certified copy of the order dated 13.03.2003 in G.R. Case No.520 of 2002 which arises out of Tangi P.S. Case No.105 dated 23.06.2002 were marked as Exts.A, B, C, D, D/1 & E respectively. Findings of the Trial Court: 6. The learned trial Court after assessing the ocular as well as documentary evidence on record came to hold that the deceased met with homicidal death. The learned trial Court did not accept the defence plea and relying on the evidence of the injured eye witness P.W.13, held the appellants guilty under section 302/34 of the I.P.C. Contentions of the Parties: 7.
Legal Reasoning
Ms. Anima Dei, learned Amicus Curiae appearing for the appellant no.2 Mayadhar Naik argued that the evidence of the sole eye witness to the occurrence i.e. P.W.13 is not trustworthy and there are material contradictions in his evidence and he has failed to explain how the appellant no.1 sustained injury for which he was hospitalized. It is argued that P.W.13 is Page 11 of 22 [ 12 ] an accused in the case instituted from the side of the appellants relating to the occurrence in question and therefore, it would be very risky to accept his evidence to convict the appellant no.2 under section 302 of I.P.C. and therefore, it is a fit case, where benefit of doubt should be extended in favour of the appellant no.2. Mr. Arupananda Das, learned Additional Government Advocate, on the other hand, supported the impugned judgment and submitted that the presence of P.W.13 being an injured witness, cannot be disputed at the spot. Evidence of P.W.13 relating to the assault on the deceased so also on him is getting corroboration from the medical evidence. He further argued that though some documents have been proved from the side of the defence and the appellant no.1 has been examined as D.W.1 to put forth the defence plea but in the accused statement, no such plea has been taken and therefore, no importance is to be attached to the defence plea and since the injuries were caused on the vital part of the body of the deceased and as per the post-mortem report (Ext.11), the cause of death was due to craniocerebral injury and the injuries received by the deceased were ante mortem in nature and the doctor has opined that the injuries were possible by the seized weapons, which were sent to Page 12 of 22 [ 13 ] him i.e. katuri and stick, the learned trial Court has rightly held the appellant not.2 guilty under section 302/34 of I.P.C. and even if the injury report, which has been proved from the side of the defence is taken into account, since the injuries sustained by the appellant no.1 were simple in nature, the prosecution is not duty bound to explain such injuries and therefore, the appeal should be dismissed. Whether the deceased met with a homicidal death?: 8. Before adverting to the contentions raised by the learned counsel for the respective parties on other aspects, it is pertinent to note that the doctor, who conducted post mortem examination, could not be examined during trial. However, the post-mortem report has been marked as Ext.11 without objection. The doctor has noticed the following injuries: “1) A stitched lacerated wound of 5 c.m. long situated obliquely on the right temporoparietal region extending upward 6 c.m. behind right ear root to end 2.5 c.m. in front of right parietal eminence; 2) Contusion looking black of size 10 c.m. X 6 c.m situated on the right temporo mastoid region; Page 13 of 22 [ 14 ] 3) Contusion looking black 4 c.m. X 3 c.m. situated on the left mastoid region; 4) Abrasion looking reddish brown 5 c.m. X 0.7 c.m. situated transversely on the middle of left anterolateral aspect of the neck; 5) Multiple abrasions looking reddish brown colour of sizes varying from 0.5 c.m. to 1.5 c.m. X 0.5 cm. to 1 c.m. situated on the dorsum of right palm mid part of left arm, left lateral aspect of chest and left postero lateral aspect of the neck. On dissection, the doctor found as follows: 1) Under surface of the scalp was contused over left parietal and entire right half associated with sub-scalp haematoma and contusion of both temporal muscles; 2) Depressed fracture of size 5 c.m. X 5 c.m. situated on right temporoparietal skull just below and lateral to right parietal eminence with a fissure fracture extending forward and to the left for 9 c.m.; 3) Extradural haematoma of 0.5 c.m thickness detected over right parietal region over an area 10 c.m. X 5 c.m. underneath the fissure fracture; Page 14 of 22 [ 15 ] 4) Undersurface of right temporal lobe was contused and associated with subdural haematoma. The doctor also found from the depressed fracture one fissure fracture extended downward and forward to involve base of right middle cranial fossa up to the midline. The doctor opined that death was due to craniocerebral injuries. External injuries corresponding to internal injuries were opined to be fatal in ordinary course of nature. The doctor vide Ext.15 opined that the external injury no.1 with its corresponding internal injuries could be caused by spade. In view of the inquest report marked as Ext.6, the post mortem report findings and the materials available on record, we are of the humble view that the learned trial Court has rightly come to the conclusion that the deceased met with homicidal death. Appreciation of evidence of P.W.13: 9. The conviction of the appellant no.2 Mayadhar Naik is based on the testimony of solitary eye witness (P.W.13). There is no dispute over the proposition of law that the Court can and may act on the testimony of a single witness particularly when Page 15 of 22 [ 16 ] he is an injured one provided that he is wholly reliable and his evidence has a ring of truth and it is found to be cogent, credible and trustworthy. There is no legal impediment in convicting a person on the sole testimony of such a witness. This is the logic behind section 134 of the Indian Evidence Act, 1872. The evidence has to be weighed and not counted. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. However, if there are doubts about his testimony, the Court shall insist on corroboration. When the testimony of the solitary eye witness does not come up to the mark and is replete with infirmities, the same can be overlooked. The first information report according to P.W.10 was lodged as per the version of the injured (P.W.13). However, in the said report, there is nothing that the appellant no.2 assaulted the deceased Dasa Sitha. It is specifically mentioned in the F.I.R. that only two persons participated in the assault of the deceased i.e. appellant no.1 Bichi Naik and one Aparti Naik. Page 16 of 22 [ 17 ] P.W.13 in his evidence has stated that the appellant no.1 was holding a katuri and the appellant no.2 was holding a gupti and seeing the accused persons coming to the land where the deceased was working with labourers, he got up and enquired as to what had happened. Appellant no.1 suddenly caught hold of the left hand of P.W.13 and the appellant no.2 gave fist blows on his face over the lips and then dealt a blow by the gupti on the back side of his head and then both the appellants caught hold the deceased and at that time, Aparti took out the gupti and threatened him and thereafter Aparti rushed towards the deceased and all three of them put the deceased on the land and then both the appellants assaulted the deceased by means of a katuri and spade on his head and the appellant no.2 called Aparti to leave the place saying the deceased was dead. However, it has been confronted to P.W.13 and proved through the Investigating Officer (P.W.16) that P.W.13 has not stated that the appellant no.1 assaulted the deceased with a katuri and then appellant no.2 assaulted on the back side head of the deceased with a spade. Rather, he has stated that when Aparti and appellant no.2 chased him to kill, he ran towards the land of Padmanava and after running to a distance, when he returned back, he saw the appellant no.1 had put the deceased on the Page 17 of 22 [ 18 ] land and assaulting on his head by snatching the spade from the deceased. Therefore, not only in the F.I.R., there is no accusation against the appellant no.2 to have participated in the assault of the deceased but also in the previous statement of P.W.13 before the I.O., there is nothing that the appellant no.2 assaulted the deceased. From the contradictions proved which appears to be material, the witness cannot be said to be absolutely reliable and truthful. Moreover, P.W.13 is an accused in the counter case which was instituted from the side of the appellants and he has also been charge sheeted under sections 447/427/323/324/34 of I.P.C. read with section 3 of S.C. & S.T. (PoA) Act in the said case. From the side of the appellants, the F.I.R. was lodged at the first instance and the appellant no.1 was sent for medical examination on police requisition. Even P.W.13 has stated that the appellant no.1 was having bleeding injury on his right arm and the appellants arrived at the P.S. and at the hospital prior to them and that he saw the bandage on the head of the appellant no.1 at the hospital. P.W.13 has also admitted that the case was filed by Aparti Naik against him and the deceased for assaulting them on the same day of occurrence and he was arrested on the strength of warrant. Page 18 of 22 [ 19 ] It is correct that no such specific defence plea has been taken in the accused statement, but law is well settled that even if the accused has not taken any specific plea of exercise of right of private defence but if the materials available on record suggest such exercise, the Court can consider the same and give benefit to the accused in appropriate case. Without even setting of a specific plea of private defence, the accused can even rely on the circumstances and admissions made by the witnesses in support of such plea. We find that not only the appellant no.1 has been examined as D.W.1 to state about the defence case but also documents like F.I.R., charge sheet, the injury reports of appellant no.1 have been proved from the side of the defence and P.W.13 has not given any explanation as to how the appellant no.1 has received the injuries. In the case of Lakshmi Singh -Vrs.- State of Bihar reported in A.I.R. 1976 Supreme Court 2263, the Hon’ble Supreme Court held that if the prosecution does not explain the injuries on the person of the accused which were caused at the time of occurrence or in the course of altercation, it is a very important circumstance from which the Court can draw the following inferences: Page 19 of 22 [ 20 ] (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) That the witnesses who have denied about the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) That in case there is a defence version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case. It is further held that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution case. In the case at hand, when the evidence of solitary witness i.e. P.W.13 is full of material contradictions and even though at the first instance, there was no implication against the appellant no.2 to have assaulted the deceased, which has been developed during trial and it is proved through the Investigating Officer and moreover when the appellant no.1 has sustained injuries on the vital part of the body like his head as appears Page 20 of 22 [ 21 ] from Ext.C, even though the injuries have been opined to be simple in nature, but the said accused was hospitalized not only in Tangi Hospital but in Capital Hospital as stated by the Investigating Officer, we are of the view that the version of P.W.13 cannot be said to be clear, clinching, trustworthy and aboveboard so that this Court can place implicit reliance on his testimony to convict the appellant no.2. The learned trial Court was not justified in placing reliance on the evidence of P.W.13 to convict the appellant no.2. Conclusion: 10. In view of the foregoing discussions, we are of the view that the impugned judgment and order of conviction of the appellant no.2 Mayadhar Naik under section 302/34 of I.P.C. is not sustainable in the eyes of law and the same is hereby set aside. The appellant no.2, who is on bail by order of this Court, is hereby discharged from liability of the bail bonds and the surety bonds also stand cancelled. Accordingly, the JCRLA is allowed. Trial Court records with a copy of this judgment be sent down to the concerned Court forthwith for information. Page 21 of 22 [ 22 ] Before parting with the case, we would like to put on record our appreciation to Ms. Anima Dei, the learned Amicus Curiae for rendering her valuable help and assistance towards arriving at the decision above mentioned. She shall be entitled to her professional fees which is fixed at Rs.7,500/- (rupees seven thousand five hundred only). This Court also appreciates the valuable help and assistance provided by Mr. Arupananda Das, learned Additional Government Advocate. S.K. Sahoo, J. …………………………… S.K. Mishra, J. ……………………………… Orissa High Court, Cuttack The 30th January, 2024/Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 22-Mar-2024 19:46:28 Page 22 of 22